Md. Raju vs State of Bihar - 2023 Supreme(Pat) 362

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 362

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and HARISH KUMAR, JJ.
Criminal Appeal (DB) No.969, 914 of 2015
(2.5.2023)
Md. Raju (in 969)
Md. Sonu (in 914) ... Appellants
vs.
State of Bihar ... Respondent
(in all)

Advocates:
For the Appellants : M/s Md. Najmul Hoda, Shweta, Pranjal Kumar (in both.
For the Respondent: Mr. S.B.Verma, APP (in both).

Headnote:
Indian Evidence Act, 1872 – Section 27 – Disclosure statement – So much of such information in the statement only as it relates distinctly to facts discovered is admissible in evidence and not anything else – For acceptance of such recovery under Section 27 of Evidence Act as an evidence which could be proved, it is necessary that discovery be made on confession of accused in custody of Police and that such discovery ought to be of some new fact for it to be admissible – Exception under Section 27 is applicable but only if confessional statement leads to discovery of some new fact. (Paras 18 and 23)
Indian Evidence Act, 1872 – Section 25 – Extra-judicial confession – Court of law cannot start with confession of accused person – It must begin with other evidence adduced by prosecution and only thereafter it is permissible to turn to confession, in order to receive assurance to conclusion of guilt which a judicial mind is about to reach on other evidence – Extra-judicial confession, if corroborated by other evidence on record could be taken into consideration to prove guilt of accused but it nonetheless remains a weak piece of evidence – Courts have very consciously rejected such extra-judicial confessions if it is offered as sole basis for conviction of accused and that also, when such extra-judicial confession is not voluntary – Corroboration of such extra-judicial confession has to be of every circumstance mentioned in confession with regard to participation of accused separately and independently. (Paras 25 and 31)
Indian Penal Code, 1860 – Sections 302, 201 and 34 – Indian Evidence Act, 1872 – Section 25 – Murder and disappearance – Common intention – Life sentence – Case against appellants rests on extra-judicial confession – No confession made to a police officer shall be proved as against a person accused of any offence – Extra-judicial confession is not voluntary – Case could be said to have been proved only if there is certain and explicit evidence – No person can be convicted on any moral conviction – Circumstances from which conclusion of guilt is to be drawn should in first instance be fully established and all facts so established should be consistent only with hypothesis of guilt of accused – Except for an extra judicial confession, there is no other material to come to a definite finding that deceased was killed at hands of appellants – Conviction of appellants has been recorded on material which are not at all admissible in evidence – Judgment and order of conviction as against appellants set aside – Appeals allowed. (Paras 22, 26, 34, 35, 36, 37, 38 and 41)

Ashutosh Kumar, J.—Heard Md. Najmul Hoda for the appellants in Cr. Appeal (DB) No. 969 of 2015 (Md. Raju) and Cr. Appeal (DB) No. 914 of 2015 (Md. Sonu). The State has been represented in both the appeals by Ms. Shashi Bala Verma, learned Additional Public Prosecutor.

2. Both the appellants have been convicted under Sections 302, 201 and 34 of the Indian Penal Code vide judgment and order of conviction dated 28.08.2015 and order of sentence dated 31.08.2015 passed in Sessions Trial No. 245 of 2007 arising out of Kotwali (Ishakchak) P.S. Case No. 572 of 2006 and have been sentenced to undergo rigorous imprisonment for life, to pay a fine of Rs. 10,000/- and in default of payment of fine to further suffer rigorous imprisonment for two years for the offence under Sections 302/34 of the Indian Penal Code and rigorous imprisonment for two years, a fine of Rs. 2000/- each and in default of payment of fine, to suffer further simple imprisonment of two months for the offence under Section 201 of the Indian Penal Code.

3. The case against the appellants rests on the extra judicial confession having been made by appellant/Md. Raju and the circumstantial evidence in the case. Md. Irshad Alam, who is the father of the deceased and has been examined as PW9 in the case, had lodged the F.I.R. on 08.09.2006 which was recorded at his house by the Officer-in-charge of Ishakchak police station in the district of Bhagalpur in which he had alleged that when he came back from the court, where he had been working as a peon, his wife Rukhsana Khatoon (PW8) informed him that one of his sons namely Imran Alam aged about 14 years had not come back from home. On this information, PW9 went out of his house to look for his son in the neighborhood but to no avail till about 9 O’clock in the evening. While the search was still on, PW9 claims to have learnt from somebody, whose identity has not been disclosed, that one Md. Raja son of Md. Akil Ansari, a neighbour of PW11, had disclosed that while the son of PW9 had been sitting with him, appellant/Md. Raju had goaded them to come out of the house for the purposes of taking snacks. Both of them were taken by the appellant/Md. Raju near a railway over-bridge where he Raju strangulated the deceased by means of a cloth and left the dead body there. On such information, PW9 along with the villagers and neighbours came to the house of Akil Ansari and questioned Md. Raja, who also informed him and others that while he was sitting along with the deceased at his house, Md. Raju came at about 7 PM and took them near the railway over-bridge. Suddenly thereafter, Md. Raja informed PW9, appellant/Md. Raju, by using a Gamcha, tied the neck of the deceased and started yanking it. The deceased kept on pleading that he should not be killed but the appellant/Raju did not pay heed to his pleadings. No sooner was the deceased rendered unconscious because of such strangulation, appellant/Raju lifted a stone and threw it on the head of the deceased. Md. Raja claims to have ran away from the place of occurrence. He was also attempted to be chased but, he could anyhow come back to his house.

4. On such information having been collected from Md. Raja, PW9 along with others reached the house of appellant/Raju and questioned him. Initially, Raju feigned ignorance but later, admitted that he had killed the deceased and that the dead body is still lying under the railway over-bridge. On hearing such statement from Raju, the crowd which had collected there became restive and Raju was assaulted. He was also tied up to prevent him from running away. Other persons informed PW9 that a day before i.e. on 07.09.2006, Raju had stolen a goat belonging to one Md. Khurshid Alam and the deceased had seen him taking away that goat. Later, Raju left the goat in a field. Even thereafter, Khurshid Alam was trying to locate as to who had stolen the goat. Raju suspected that since the deceased had seen him taking away the goat, he killed him. The PW9 claims