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CALCUTTA HIGH COURT
J.N. More & Sankar Bhattacharyya, JJ.
Abed Ali Jamadar - Petitioner
versus
State - Respondents
Criminal Appeal No. 375 of 1983
Decided on 22-4-1987
Mr. Sudipta Maitra, Advocate - For the Petitioner.
Mr. S. Mukherjee, P.P.-For the State.
IMPORTANT POINT
Where the judicial confession is found to be voluntary and true it can not be discarded on the grounds that confession recorded without informing the accused of his right to consult and to be defended by a lawyer of his choice and the judicial confession is not recorded in the open court but in the Magistrate's chamber.
Headnote:Indian Penal Code, 1860 - Section 302 Appellant convicted under - Appellant was charged for committing the murder of his wife, by strangulation - Appellant admitted his guilt in his extra judicial confession as well as in judicial concession made before the learned Magistrate - Though he took up the plea of alibi but did not attempt to prove it - Prosecution case rested on circumstantial evidence since there was no direct evidence Medical testimony opined that death was due to asphyxia as a result of throttling which was ante-mortem and homicidal in nature - Prosecution produced corroborated evidence and proved the case beyond any reasonable doubt- Judicial confession was found not. Only voluntary hut was also true-Appellant challenged the order of trial court and appealed against - Whether the judicial confession recorded in the instant case could be discarded mere1y on the ground that it was recorded in the Magistrate's chamber and not in the open court? (No) (Paras 56, 58 and 59)-Whether where judicial confession recorded without informing the accused of his right to consult and to be defended by a lawyer of his choice, was to be discarded even if the confession was found to be voluntary and true? (No) (Paras 71 to 75)
Result-
Appeal dismissed and affirmed the order of conviction passed by the lower court.
JUDGMENT
Mr. Sankar Bhattacharyya, J. - The subject-matter of challenge in this appeal is the judgment and order dated 30-11-83 passed by a learned Additional Sessions Judge, Howrah convicting the appellant under Section 302, Indian Penal Code and sentencing him to imprisonment for life.
2. Shorn of details, the prosecution case was as under:
Manwara Bibi, deceased was married to the appellant Abed Ali Jamadar round about the year 1976. For about a year and a half she lived in her matrimonial home in village Rajkhola within police station Panchla. Thereafter, following an estra-agement between them, she left her matrimonial home and started living with her mother in the same village.
3. Towards the latter part of August, 1979 there was a village salish at the instance of the appellant to settle the controversy between him and his wife and it was decided in the salish that Manwara's mother would send her back to the appellant's house on condition that she would not be asked to do any work of Jari (lace) but would simply do household work.
4. Even after the salish Manwara's mother was hesitant to send her daughter to the appellant's house as she apprehended danger to her life but ultimately Manwara went to the appellant's house sometime in the last week of August, 1979.
5. On the night of September 6, 1979 Manwara and her husband slept together in a room of the house. On the following morning she was found lying dead inside 1he room with her tongue protruded and marks of small round burn injuries on her face, nose, feet and other parts of the body.
6. Getting the news of her death the villagers came there and on interrogation, the appellant confessed before them that he committed the murder of his wife by strangulation. He further confessed that he caused the burn injuries with the blunt side of the heated needle used for lace work.
7. The appellant was thereafter detained by the villagers while Sh. Babulal (P.W.1) uncle of Manwara, went to the Panchla Police Station and lodged the first information report at 10.30 a.m. On the basis of the first information report the police registered a case of murder, took up investigation and arrested the appellant after his production in court, the appellant made a judicial confession before a learned Magistrate to the effect that he had murdered his wife.
8. On completion of the investigation the police submitted charge- sheet, which in the usual course, ended in committal of the case to the Court of Session.
9. The defence of the appellant was that he was not in his house on the night of occurrence and was falsely implicated in the case.
The prosecution examined all told 20 witnesses in support of its case, while the defence examined none.
10. The murder of Manwara is not challenged before us and had also been proved by overwhelming evidence. Sh. Babulal (P.W. 1), Haliman Bibi (P.W. 2), Sarifan Bibi (P.W.3), Sahadat (P.W. 4), Sohorab (P.W. 6), Janab Ali (P.W. 7), Yasim Ali (P.W. 11), and Asgar Ali (P.W. 12) saw the dead body of Manwara lying on a mat inside the appellant's room with her tongue protruded and small round burn marks on different parts of her body.
11. The autopsy on the dead body was conducted by Dr, S.P. Roy (P.W. 17), the then Sub-divisional Judicial Officer of the Uluberia Hospital. He found the deceased's eyes open and protruding, the tongue protruding and small round burn injuries on the face, chest veil, nose and feet. Both the nostrils were found blocked with small pieces of cloth. There were marks of bleeding through the nostrils and one small abrasion was found on the chin.
12. On dissection the uterus was found to contain a full term dead female child. In the opinion of Dr. Roy, death was due to asphyxia as a result of throttling which was ante-mortem and homicidal in nature. The viscera was preserved and sent to the Forensic Science Laboratories but on chemical examination no for doubt that this poison could be detected in the viscera.
13 Though Dr. Roy was cross-e
