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2023 Supreme(Cal) 30
IN THE HIGH COURT AT CALCUTTA
Chitta Ranjan Dash, Partha Sarathi Sen, JJ.
Arjun Kora - Appellant
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 437 of 2005
Decided On : 03-02-2023
Partha Sarathi Bhattacharya, Advocate, Asim Kumar Niyogi, Advocate, Prasun Kumar Dutta, Advocate, Md. Kutubuddin, Advocate, Santanu Deb Roy, Advocate
Extra-judicial confessions are inadmissible if they are made under coercion or to the police and are not voluntary. A retracted confession of a co-accused cannot be treated as substantive evidence against another co-accused.
Headnote:
CRIMINAL APPEAL - CONVICTION - MURDER - EXTRA JUDICIAL CONFESSION - SECTION 27 OF EVIDENCE ACT - RETRACTED CONFESSION OF CO-ACCUSED - SECTION 30 OF EVIDENCE ACT - HELD, EXTRA JUDICIAL CONFESSION INADMISSIBLE - SECTION 27 OF EVIDENCE ACT NOT APPLICABLE - RETRACTED CONFESSION OF CO-ACCUSED CANNOT BE SUBSTANTIVE EVIDENCE AGAINST APPELLANT - APPEAL ALLOWED.
Fact of the Case:
Appellant was convicted under Sections 302 and 201 IPC for the murder of his first wife, Chandana Kora, and burying her body beneath the earth. The conviction was based on extra-judicial confessions allegedly made by the appellant to several villagers, the retracted confession of his second wife, and the discovery of the body as per the appellant's showing to the police.
Finding of the Court:
1. The extra-judicial confessions were inadmissible as they were made under coercion or to the police and were not voluntary. 2. The retracted confession of the co-accused could not be used as substantive evidence against the appellant. 3. The evidence of the prosecution witnesses was not clinching and corroborative and did not inspire confidence due to contradictions and embellishments.
Issues: 1. Whether the extra-judicial confessions were admissible in evidence. 2. Whether the retracted confession of the co-accused could be used as substantive evidence against the appellant. 3. Whether the evidence of the prosecution witnesses was sufficient to prove the guilt of the appellant.
Ratio Decidendi: 1. Extra-judicial confessions are inadmissible if they are made under coercion or to the police and are not voluntary. (Sections 24, 25, and 26 of the Indian Evidence Act, 1872) 2. A retracted confession of a co-accused cannot be treated as substantive evidence against another co-accused. (Pancho vs. State of Haryana, (2011) 3 CCrLR (SC) 654) 3. The evidence of prosecution witnesses must be clinching and corroborative and inspire confidence in order to prove the guilt of the accused.
Final Decision: The appeal was allowed, the impugned judgment of conviction and order of sentence were set aside, and the appellant was acquitted of the charges under Sections 302 and 201 IPC.
JUDGMENT
Partha Sarathi Sen, J. - The instant appeal arises out of judgement of conviction dated 18.03.2004 and order of sentence dated 19.03.2004 as passed by the Learned Additional Sessions Judge, 2nd Court, Burdwan in Sessions Trial No.23/2002 arising out of Sessions Case No. 73/2001 whereby and whereunder the said Court by the impugned judgment convicted accused no.1 Arjun Kora, under Section 235(2) Cr.P.C for the offence committed by him under Section 302 IPC and thus, sentenced him to suffer imprisonment for life and to pay fine of Rs.2,000/- i.d to suffer imprisonment for a period of one year more for the offence punishable under Section 302 IPC. By the self same judgment the said trial court also convicted accused no.1 Arjun Kora and accused no.2 Purnima Kora under Section 235 (2) Cr.P.C for the offence committed by them under Section 201 IPC and thus, sentenced both the convicted persons to suffer RI for a period of three years each and to pay a fine of Rs.1,000/- each i.d to suffer imprisonment for a further period of six months each for the offence punishable under Section 201 IPC.
2. The convict no.1 Arjun Kora felt aggrieved and thus, preferred the instant appeal.
3. For effective disposal of the instant appeal the facts leading to the initiation of the aforesaid Sessions Trial No.23/2002 is required to be narrated in a nut shell.
4. One Bablu Kora of Village Dombadi, P.S Ausgram, District Burdwan, lodged a written compliant with the O/C Ausgram P.S stating, inter alia, that one Smt. Chandana Kora the 1st wife of the present appellant of their village went missing since 22.01.1999. It was his further version in the said written complaint that on account of such disappearance of the said lady the villagers asked the present appellant and his second wife about her whereabouts but of no effect. The de facto complainant further stated that though the villagers advised the present appellant to report the missing of his first wife to her paternal home he did not pay any heed to such advice. It has also been stated in the said written complaint that after marrying for the second time the present appellant started neglecting his first wife as well as children and since the day of disappearance of the said lady Chandana Kora, the appellant was found roaming by the side of Bajarbandh. It has also been stated that on 03.02.1999, at about 12 p.m. when a co-villager namely; Durga Mete was coming back to his village with his cattle at that time the foot of the cattle went inside the earth from where he got some foul smell. The said Durga Mete became suspicious and informed the matter to the co-villagers and the co-villagers suspected that in the said place some dead body might have been there and thus, they brought the present appellant and his wife (convict no.2) there where both the convict disclosed that they have murdered the victim Chandana Kora and buried her dead body at that place. On the basis of the said written complaint Ausgram P.S. Case No.13/1999 dated 03.02.1999 under Sections 302/201/34 IPC was started.
5. Investigation was taken up and on completion of the same charge sheet was submitted under Sections 302/201/34 IPC against both the accused persons.
6. After commitment the said case was transferred to the learned trial court for trial and disposal.
7. Trial Court Record reveals that on 25.07.2002 learned trial court on consideration of the entire materials as placed before him framed charges under Sections 302/201/34 of the Indian Penal Code against both the accused persons i.e. the present appellant and his wife Purnima Kora and since both the accused persons pleaded their innocence and claimed to be tried the trial proceeded. Trial Court Record reveals further that to bring home the charges as against the accused persons prosecution has examined nine witnesses in all and several documents have been exhibited on their behalf.
8. Though before the learned trial court no evidence was adduced on behalf of the defence bu
