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1995 Supreme(Cal) 230
High Court Of Calcutta
RABIN BHATTACHARYYA, A. K. CHAKRAVARTY
STATE - Appellant
Versus
BHOLA PAL ALIAS SALIL PAL - Respondent
Death Ref. 2 Of 1994
Decided On : 07/05/1995
ABHIJIT ADDYA, Ahindra Addya, ALOK ROY CHOWDHURY, KAZI SAFIULLA, MADHURI DAS, Sangita CHANDRA, SASANKA KUMAR GHOSH, THAKURDAS ROY CHOWDHURY,
A confession must be voluntary and corroborated by other evidence in order to be admissible in court.
Headnote:
CRIMINAL APPEAL - CONFESSION - VOLUNTARINESS - CORROBORATION - IDENTITY OF VICTIM - SECTION 302 IPC - CONVICTION AND SENTENCE SET ASIDE - APPEAL ALLOWED:
Fact of the Case:
The appellant was convicted under Section 302 IPC and sentenced to death for the murder of Benu Sarkar. The prosecution's case was that the appellant, along with another person, Bibhu Singh (since deceased), had shot and stabbed the victim. The appellant confessed to the crime before a magistrate, but later retracted his confession during the trial. The defense challenged the identity of the victim, the voluntariness of the confession, and the lack of corroborating evidence.
Finding of the Court:
The court found that the identity of the victim had not been properly established, as the inquest report was not properly admitted into evidence and the doctor who conducted the post-mortem examination had died. The court also found that the confession was not voluntary, as the appellant was threatened and tortured by the police and the magistrate did not properly explain the consequences of making a confession. Furthermore, the court found that there was no corroborating evidence to support the confession, as the post-mortem report was inadmissible and the medical evidence did not corroborate the number of injuries inflicted on the victim.
Issues: 1. Whether the identity of the victim was properly established? 2. Whether the confession was voluntary? 3. Whether there was corroborating evidence to support the confession?
Ratio Decidendi: 1. The identity of the victim was not properly established, as the inquest report was not properly admitted into evidence and the doctor who conducted the post-mortem examination had died. 2. The confession was not voluntary, as the appellant was threatened and tortured by the police and the magistrate did not properly explain the consequences of making a confession. 3. There was no corroborating evidence to support the confession, as the post-mortem report was inadmissible and the medical evidence did not corroborate the number of injuries inflicted on the victim.
Final Decision: The conviction and sentence of the appellant were set aside, and the appeal was allowed.
( 1 ) THIS Death Reference No. 2 of 1994 as well as Criminal Appeal No. 173 of 1994 arises out of the orders of convictions and sentence passed by Learned Additional Sessions Judge, Raiganj Uttar Dinajpur dated 23-6-94.
( 2 ) THE prosecution case is that one Sishir Sharja lodged a verbal complaint at 10. 30 p. m. on 3-7-83 at the Raiganj Police Station to the effect that on date at about 7. 30 p. m. he and victim Benu Sarkar were proceeding together towards Benu Sarkar's house. When they had reached the junction of 'anami Sangha Club' near Mohanbati Bazar, two youths wearing shirts and trousers came along the northern side and moved ahead. After both of them had gone about 20 cubits, they stopped and called "come here, Benu Da". After talking for few minutes, Benu said that they will have further talk tomorrow. When Benu Sarkar was coming back one of the two youths had fired. After being hit by such firing Benu Sarkar had fallen down on the road. Then the complainant started running, shouting 'shots are being fired' and having reached the house of Benu Sarkar he fell down. The local gentlemen and the wife of Benu Sarkar came there. She became unconscious Regaining her consciousness the wife of Benu Sarkar accompanied by other local gentlemen went to the hospital where they found that the victim Benu Sarkar had already died.
( 3 ) ON the basis of the above information in the local police station Raiganj P. S. Case No. G. R. 608 of 1983 was started against two unknown young men. After the investigation police arrested the present appellant Bhola Paul along with another Bibhu Singh (since deceased) from Calcutta. The appellant confessed his built on 8-8-93. After the completion of the investigation police submitted charge-sheet against the appellant Bhola Paul under Section 302, I. P. C.
( 4 ) THE defence case, as it appears from the evidence as well from as other materials on record, is that the convict Bhola Paul did not make any confessional statement and that the alleged confessional statement was recorded by the Magistrate as dictated by the police officer, in which he had been compelled to sign under the pain of death.
( 5 ) THE learned Sessions Judge upon examining the evidence on record and also upon consideration of the previous conviction against the appellant found him guilty under Section 302, I. P. C. and passed the sentence of death.
( 6 ) BEING aggrieved by the aforesaid order of conviction and sentence the appellant preferred this appeal and the matter was referred to this Court for confirmation of death sentence under the provisions of S. 366, Cr. P. C.
( 7 ) THE prosecution examined altogether 17 witnesses in this case. These witnesses can be categorised in 4 groups, namely, local police, doctor and the Magistrate. P. Ws. 1 to 6 and P. Ws. 8 to 13 are the local witnesses. It is no use discussing their evidence in details for the purpose of this case because most of them were declared hostile and none says anything implicating the appellant for the commission of the alleged offence. P. W. 7, P. W. 15 and P. W. 16 are the police witnesses. P. W. 7 is the seizure list witness, P. W. 15 is the Officer who filled up the formal portion of the F. I. R. P. W. 17 is the I. O. of this case. The medical evidence is furnished by P. W. 14, Dr. R. B. Ghosh. He proved the handwriting of Dr. K. Roy who held the post-mortem examination over the dead body of the victim Benu Sarkar and also deposed about the contents of the post-mortem report. P. W. 16 is Sri D. D. Sinha, the Magistrate who recorded the confessional statement at appellant Bhola Paul.
( 8 ) THESE are all the witnesses examined by the prosecution in this case. Since none of the local witnesses deposed against the appellant implicating him for the commission of the alleged offence under Section 302, I. P. C. , the only evidence which was available against the appellant for convicting him was his alleged confession dated 8-8-93. This conf
