IMPORTANT POINT
Entries in police diary cannot be used in seeking confirmation of an opinion on question of appreciation of evidence.

JUDGMENT (CAV)

Michael Zothankhuma, J.—Heard Mr. K Goswami, learned senior counsel and Amicus Curiae for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor appearing for the State.

2. This appeal has been filed against the Judgment and Order dated 28.04.2017 passed by the Court of the learned Additional Sessions Judge, Goalpara in Sessions Case No. 27/2016, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for 3 (three) months.

3. The prosecution case in brief is that the informant’s brother Randhan Rabha was hacked to death by his wife (appellant) with a dao. In this regard, the informant (PW-1) submitted an FIR dated 22.12.2015 before the Officer-In-Charge, Bagnan Police Station, pursuant to which Bagnan P.S. Case No. 190/2015 under Section 302 IPC was registered. The Investigating Officer thereafter filed a charge-sheet, having found a prima facie case under Section 302 IPC against the appellant, as the appellant had apparently disclosed to the Police that she had killed her husband. Charge under Section 302 IPC was framed against the appellant on 18.04.2015, on the ground that she had killed her husband on the night of 21.12.2015. The appellant pleaded not guilty to the charge and faced trial.

4. During the proceedings before the learned Trial Court, 13 (thirteen) prosecution witnesses and 1 (one) child witness were examined. After examination of the appellant under Section 313 Cr.P.C., the learned Trial Court came to a finding that the offence of 302 IPC had been proved against the appellant. The appellant was accordingly convicted and sentenced vide the impugned Judgment and Order dated 28.04.2017, passed in Sessions Case No. 27/2016

5. The learned Amicus Curiae submits that the entire case of the prosecution is on the alleged statement/confession by the appellant to the Police that she had killed her husband with a dao. He submits that the evidence adduced by the witnesses would show that none of the civilian witnesses was told by the appellant that she had killed her husband, except for PW-12, who stated in his examination-in-chief that he had met the appellant in the Bagnan Police Station, where she had disclosed to him that she had killed her husband. Further, in his cross-examination, PW-12 has stated that the appellant had disclosed the same in front of the Police that she had killed her husband. He submits that any statement, disclosure or confession made by any person to the Police is not admissible as evidence, in terms of Sections 25 & 26 of the Indian Evidence Act, 1872.

6. The learned Amicus Curiae also submits that though the alleged weapon, i.e. “dao” used in killing the deceased had been seized by the Police and sent to the Forensic Science Laboratory (FSL) for examination, the report of the FSL was never made a part of the charge-sheet. As such, there was no proof that the dao, which had been seized by the police, was the weapon used for killing the deceased. Also there was nothing to prove that the appellant had used the said dao.

7. The learned Amicus Curiae also submits that the explanation given by the appellant in her examination under Section 313 Cr.P.C. goes to show that the appellant was not in her house with the deceased on the night of the incident, i.e., 21.12.2015 and the appellant only came to know about the fact of her husband’s death when she went back to her house at around 8:00 am, after spending the night in her mother’s house.

8. The learned Amicus Curiae accordingly submits that as there was no eye witness to the crime and as the alleged statement/confession made by the appellant to the Police is not admissible as evidence, the learned Trial Court erred in convicting the appellant under Section 302 IPC.

9. The learned Amicus Curiae also submits that the learned Trial Court erred in relying upon the GD ent