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IN THE HIGH COURT AT CALCUTTA, CIRCUIT BENCH AT JALPAIGURI
SUGATO MAJUMDAR, J.
Madhab Das & Ors. - Appellants
Versus
The State of West Bengal & Anr. - Respondents
CRA No. 15, 17 of 2019
Decided On : 22-08-2023
CRIMINAL APPEAL - SECTION 201/34, INDIAN PENAL CODE - EXTRAJUDICIAL CONFESSION - RELIABILITY AND CORROBORATION - SECTION 30 OF THE INDIAN EVIDENCE ACT, 1872 - INTERPRETATION AND APPLICATION - CONFESSION OF ONE ACCUSED AGAINST CO-ACCUSED - ADMISSIBILITY AND WEIGHT - SUSPICIOUS CONDUCT OF ACCUSED - INSUFFICIENT TO ESTABLISH CHARGES - ACQUITTAL.
Fact of the Case:
Appellants were convicted under Section 201/34 of the Indian Penal Code for concealing the evidence of murder. The prosecution's case relied heavily on the extrajudicial confession of one of the accused, Naguri Das, and the discovery of the deceased's body at her instance.
Finding of the Court:
The court found that the extrajudicial confession of Naguri Das was made under duress and could not be relied upon. The court also found that there was no corroboration for the confession and that the suspicious conduct of some of the accused was insufficient to establish the charges under Section 201/34 of the Indian Penal Code.
Issues: 1. Whether the extrajudicial confession of one accused can be used against co-accused under Section 30 of the Indian Evidence Act, 1872? 2. Whether the suspicious conduct of the accused is sufficient to establish charges under Section 201/34 of the Indian Penal Code?
Ratio Decidendi: 1. Section 30 of the Indian Evidence Act, 1872 allows a court to take into consideration the confession of one accused against co-accused, but it is not obligatory for the court to do so. 2. The confession of an accused person can be used against the maker of the confession, but it generally requires corroboration. 3. Suspicious conduct of the accused is not sufficient to establish charges under Section 201/34 of the Indian Penal Code.
Final Decision: The court set aside the impugned judgment of conviction and the order of sentence. The appellants were acquitted of all charges and set free.
JUDGMENT :
Sugato Majumdar, J.
1. These two criminal appeals arise from the same judgment of conviction and order of sentence. These two appeals are heard together and taken up for delivering common judgment.
2. All the appeals are preferred against the Judgment dated 29/06/2019 and the Order of sentence dated 01/07/2019 passed by the Learned Additional Sessions Judge, Tufangunj, District – Cooch Behar in Sessions Case No.324 of 2012 corresponding to Sessions Trial No.01 (06) of 2014 whereby the Appellants were found guilty under Section 201/34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for a term of six years and also to pay fine of Rs.25,000/- each in default to suffer simple imprisonment for six months.
3. Bablu Chandra Saha, the deceased, son of the de-fact complainant Nagendra Mohan Saha went to the residence of his neighbour Haran Saha for charging his mobile hand-set on 08/07/2010. From about 10:00 p.m. he was missing. He could not be traced out even after thorough search. On the next morning his mobile was found near the toilet of the de-facto complainant. In the evening a missing diary was lodged bearing number G.D.E 301/10 dated 09/07/2010 in Boxirhat Police Station. Bablu Saha, the deceased, used to go to the residence of one of the accused Madhab Das. The said accused fled away from the locality when the deceased was missing. On surmise, the de-facto complainant along with local people interrogated another accused Naguri Das who confessed before all that all the accused persons, belonging to the same family, murdered the deceased and buried the dead body under a banana bush.
4. Written complaint was lodged before Boxirhat Police Station on 10/07/2010. The case was registered as Boxirhat P.S. Case No.80/2010 dated 10/07/2010 under Sections 302/201/34 of the Indian Penal Code. Dead body of the deceased was exhumed, inquest report was prepared, post-mortem examination was conducted. The Investigating Officer conducted investigation after completion of which he filed charge sheet under Sections 302/201/34 of the Indian Penal Code.
5. After commitment to the Sessions Court and taking cognizance of the offences, charges were framed under Sections 302/201/34 of the Indian Penal Code. Charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. Hence trial began.
6. In course of trial, the prosecution produced thirty one witnesses and various documentary evidences which were exhibited and marked.
7. Defense of the accused persons, as appears from the trend of cross-examination and answer to the questions asked in course of examination under Section 313 of the Code of Criminal Procedure was false implication.
8. The Learned Trial Judge, in the impugned judgment exonerated the accused persons from the charge of Section 302 of the Indian Penal Code but convicted and sentenced them under Section 201/34 of the Indian Penal Code.
9. The convicts preferred different appeals. Some of them are the present Appellants.
10. It is argued by the Learned Counsel for the Appellants that the whole prosecution case hinged on extra judicial confession of one of the convict Naguri Das and discovery of the dead body at her instance. The Learned Trial Judge did not rely on the extra judicial confession as the same was made under pressure by the said Naguri Das, as it was observed in the impugned judgment. This observation led the trial court to exonerate the charge under Section 302 of the Indian Penal Code. In the same breath and on the basis of the same piece of evidence conviction under Section 201 of the Indian Penal Code is not sustainable. Same evidence cannot be rejected and accepted at the same time, according to the Learned Counsel for the Appellant. According to him, the appeal should be allowed and the Appellants should be acquitted.
11. Per contra, the Learned Counsel appearing for the State argued that number of prosecution witnesses testified in tandem t
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