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High Court Of Calcutta
B. C. Chakrabarti, Jitendra Nath Chaudhuri
MIHIR ADHIKARY - Appellant
Versus
STATE - Respondent
Criminal Appeal 364 Of 1979
Decided On : 05/04/1983
CRIMINAL APPEAL - MURDER - SECTION 302 AND ATTEMPT TO COMMIT SUICIDE - SECTION 309 IPC - CONVICTION AND SENTENCE - APPEAL AGAINST - CONFESSION MADE BY THE ACCUSED - ADMISSIBILITY - SECTIONS 25 AND 26 OF THE EVIDENCE ACT - INTERPRETATION.
Fact of the Case:
The appellant, Mihir Adhikary, was convicted under Sections 302 and 309 of the Indian Penal Code for murdering his wife, Hira, and their daughter, Sarada, and attempting to commit suicide. The prosecution's case was that the appellant killed his wife and daughter in a fit of rage and then tried to kill himself. The defence claimed that miscreants from outside had raided the house and killed Hira and Sarada, and that the appellant was falsely implicated.
Finding of the Court:
The court found that the appellant's extra-judicial confession made at the house was admissible as it was not made to a police officer and there was no extraneous influence or extortion. However, the confession recorded by the doctor at the hospital was held to be inadmissible as it was made while the appellant was in custody and not in the immediate presence of a magistrate. The court also found that the circumstances of the case, including the manner of assault and the selection of the victims, pointed to the guilt of the appellant.
Issues: 1. Whether the extra-judicial confession made by the appellant at the house was admissible under Sections 25 and 26 of the Evidence Act. 2. Whether the confession recorded by the doctor at the hospital was admissible under Sections 25 and 26 of the Evidence Act. 3. Whether the circumstances of the case pointed to the guilt of the appellant.
Ratio Decidendi: 1. The court held that the extra-judicial confession made by the appellant at the house was admissible as it was not made to a police officer and there was no extraneous influence or extortion. The court interpreted Section 25 of the Evidence Act to mean that a statement made to a police officer is inadmissible, but it does not exclude all statements made in the presence of a police officer unless it comes within the meaning of Section 26 of the Evidence Act. 2. The court held that the confession recorded by the doctor at the hospital was inadmissible as it was made while the appellant was in custody and not in the immediate presence of a magistrate. The court interpreted Section 26 of the Evidence Act to mean that a confession made to a police officer or while in custody is inadmissible, unless it is made in the immediate presence of a magistrate. 3. The court found that the circumstances of the case, including the manner of assault and the selection of the victims, pointed to the guilt of the appellant. The court reasoned that if miscreants from outside had raided the house, they would have behaved differently and would not have left the appellant practically unscathed.
Final Decision: The court dismissed the appeal and affirmed the order of conviction and sentence.
( 1 ) THIS is appeal against an order passed by the learned Additional Sessions Judge, Purulia in Sessions Trial No. 14 of 1979 convicting the appellant under Ss 302 and 309 of the Indian Penal Code and sentencing him to undergo imprisonment for life on the first charge and simple imprisonment for one year under S. 309 I. P. C.
( 2 ) THE charge against the appellant Mihir Adhikary was that on the 15th day of September, 1977 he did commit murder by intentionally causing the death of Hira (wife of the appellant) and Sarada (daughter of the appellant aged about 1. 50 years) and thereby committed an offence punishable under S 302 of the Code. The second count of the charge was that on the same day and at the same place he attempted to commit suicide and did an act to wit caused stab injuries on his person with a view to commit suicide and did an act to wit caused stab injuries on his person with a view to commit suicide and thereby committed an offence punishable under S. 309 of the Code.
( 3 ) THE accused appellant is the son of the informant Tinkari Adhikary by his first wife. Tinkari Adhikary was the postmaster at Purulia and was residing in the official quarters meant for the postmaster at the relevant time. The appellant lost his mother when quite young and Tinkari married again. Tinkari has several children by his second wife named Puspa. The elder sister-of Puspa is the mother-in-law of the appellant Mihir. On the relevant date the accused-appellant went to sleep in the eastern verandah of the quarters along with his wife and daughter after taking their meals while the other inmates, viz. , Timkari, his wife Puspa, his children, viz. , Dhanapati, Nirupama, Sanjoy and others slept in the two rooms of the quarters. The mother of the deceased Hira was also there in that house on that house on that night. Upto this there is no dispute. The prosecution case now is that at about midnight Tinkari and other members sleeping in the rooms were awakened by shouts raised by Hira to the effect that she was being killed by her husband. Immediately Tinkari along with Dhanapati and Nirupama, a son and daughter of Tinkari by his second wife, rushed to the police station. The police station is about 1/8th of a kelometre from the house. There Tinkari made a statement which was recorded in the G. D. being Entry No. 586 (Ext. 6 ). Immediately after recording the G. D. , S. I. Atul Chakrabarty came to the house of the informant. Then the door leading to the eastern varandah was opened and the party came into the varandah. Some outsiders also were in the party. They found Hire and the baby lying dead in a pool of blood. The accused was lying in a cot with a knife struck to his chest. On seeing the people the accused there away the knife to the courtyard and made a statement confessing that he had murdered his wife and the child and thereafter attempted to commit suicide. The injured, viz. , the appellant was then sent to the hospital in a rickshaw. At the hospital too the appellant made a statement confessing his guilt. The statement was recorded by the doctor in the presence of two witnesses.
( 4 ) IN the meantime Tinkari again went to the police station and made a statement before the officer-in-charge who after recording the statement, started Purulia Town P. S. Case No. 18 dated 15. 9. 1977.
( 5 ) THE accused was formally arrested at 4 a. m. and was forwarded to Court on the very same day. After completion of investigation charge-sheet was submitted against the accused on the two charges aforesaid.
( 6 ) THE defence as far as it could be gathered from the trend of cross-examination, the statement, made under S. 313 Cr. P. C. and this submissions made on his behalf is that he has been falsely implicated in this case. In fact, some miscreants raided the house and the accused repeatedly asked his father to open the door. The door was not opened. The miscreants killed his wife and also attempted on his life. He became
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