An extra judicial confession cannot be used to convict an accused unless it is voluntary and there is other evidence to corroborate it.

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.

11. According to him, the appeal should be allowed and the Appellants should be acquitted.

12. Per contra, the Learned Counsel appearing for the State argued that number of prosecution witnesses testified in tand