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High Court Of Calcutta
RABIN BHATTACHARYYA, NURE ALAM CHOWDHURY
KAUSAR ALI GAZI - Appellant
Versus
STATE - Respondent
Criminal Appeal 308 Of 1991
Decided On : 10/03/1994
CRIMINAL APPEAL - SECTION 25, 26 OF THE EVIDENCE ACT, 1872 - EXTRAJUDICIAL CONFESSION - VOLUNTARY CONFESSION - CORROBORATION - SECTION 302, 34 OF THE INDIAN PENAL CODE - MURDER - CONVICTION AND SENTENCE - APPEAL AGAINST CONVICTION AND SENTENCE.
Fact of the Case:
The appellant was convicted and sentenced to life imprisonment for the murder of his elder brother. The prosecution's case was that the appellant had confessed to the murder in the presence of villagers and police officers. The appellant denied the charges and claimed that the confession was made under duress.
Finding of the Court:
The court found that the appellant's confession was not voluntary and that there was no other evidence to connect him with the crime. The court held that the appellant was entitled to the benefit of the doubt and set aside the conviction and sentence.
Issues: 1. Whether the appellant's confession was voluntary. 2. Whether there was any other evidence to connect the appellant with the crime.
Ratio Decidendi: 1. The court held that the appellant's confession was not voluntary because it was made in the presence of police officers and after the appellant had been assaulted. The court also noted that the appellant had retracted the confession. 2. The court held that there was no other evidence to connect the appellant with the crime. The court noted that the witnesses who testified to the confession had given inconsistent accounts of what the appellant had said.
Final Decision: The court allowed the appeal and set aside the conviction and sentence.
( 1 ) THIS Criminal Appeal is directed against the order the conviction and sentence passed by the learned Additional Sessions Judge, 11th Court, Alipore, in case No. 1 (9) 90/sc 42 (5)/90 under Sections 302/34 of the I. P. C. , sentencing the accused to life imprisonment in additional to payment of fine Rs. 2,000/-, in default, R. I. for one year.
( 2 ) THE sensitive facts of the Appeal before us are that on 7-8-86 at 8. 30 a. m. , an information was laid with the P. S. Hasnabad about the death of one Md. Azir Rahaman which gave birth to a suspicion. Since the author of the crime was unknown, the police registered a case being U. D. Case No. 20 of the said P. S. on 7-8-86. The investigating was set into motion on the commencement of the U. D. Case.
( 3 ) THE maker of the written complaint, the village Pradhan, was summoned by the villagers to attend house of Khalirum Rahaman Gazi as he was informed about the unnatural death of Aziar Rahaman Gazi. He found in the locale the dead body of Aziar lying on a wooden cot surrounded by an assembly of persons who were Morsed Ali P. W. 4, Abdul Latif P. W. 2, Chittaranjan Mondal P. W. 7 and Momtaj Ali Gazi P. W. 3. All of them assembled there and frowned their eyes over the death of Aziar Rahaman Gazi.
( 4 ) THE incident took a sharp turn. According to the case of the prosecution, the elder brother of the deceased Aziar apprised all in sobbing voice of the murder of his brother of which he was the perpetrator who liquidated him with the hired assassins.
( 5 ) THE paternal property according to him was a Pandora's box which lured him to gold. Both Morsed and Md. Kashem Gazi were instrumental in annihilating his elder brother, for which, the price paid by the accused to them was Rs. 2,000/ -. The accused apprised them of all the mode and manner the plan was accomplished.
( 6 ) THE accused translated his evil design through the aid of Morsed and Kashem. His brother was struggling for his existence and made endeavour to ward off their onslaught. But, his attempts were nipped in the bud. Ultimately, he left for his heavenly abode for the cruel and evil design of the accused appellant and the responsibility of his death was borne by him.
( 7 ) THE appellant burst into tears as it was a savage out burst of greed for acquisition of property.
( 8 ) THERE was a combing operation of the co-villagers for both Morsed and Kashem Gazi, but it was abated by the wise Counsel of the maker of the written complaint.
( 9 ) AS usual the police came and the villagers made over the accused to the police. Thereafter, a specific case was started being P. S. Case No. 3 dated 7-8-86.
( 10 ) ON completion of investigation, charge-sheet was submitted against all the accused under Section 302/34 of the I. P. C. , the contents of which were read over and explained to each of the accused who pleaded not guilt to the charges and claimed to be tired. The other two accused persons passed away during the currency of the trial.
( 11 ) THE learned trial court passed the order of conviction and sentence on the basis of extra judicial confession which has been challenged in the appeal.
( 12 ) DURING the currency of the trial the prosecution examined 15 witnesses and after consideration of the defence case the court found the accused guilty and recorded the order of conviction and sentence in the manner set forth above.
( 13 ) THE question that arose for consideration was whether extra judicial confession is truthful and voluntary to fix the accused with the crime.
( 14 ) MR. Dutta appearing for the appellant has seriously questioned the propriety and legality of the extra judicial confession which, according to him, is besmeared with threat, coercion, pressure and assault that consequently gave an awesome result.
( 15 ) TO bring home the point he has taken us through the evidence. The extra judicial confession is bereft of legalities and no conviction could follow. There being no clinching evi
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