The admissibility and evidentiary value of extra-judicial confessions, the need for corroboration, and the considerations for modifying a conviction from murder to culpable homicide not amounting to murder.

JUDGMENT :

MALASRI NANDI, J.

1. Heard Mr. B. Prasad, learned Amicus Curiae. Also heard Ms. S. Jahan, learned Public Prosecutor for the State and Ms. M. Buzarbaruah, learned Legal Aid Counsel for the informant.

2. This appeal is directed against the judgment and order dated 01.03.2017 passed by the learned Sessions Judge, Kokrajhar in connection with Sessions Case No. 125/2016, whereby the accused/appellant was convicted under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs.5,000/-in default, simple imprisonment for 3(three) months.

3. The prosecution story in brief is that the informant Aloka Mushahary, the wife of the deceased, lodged an FIR on 02.07.2016 before the Officer-in-Charge, Kachugaon Police Station, stating inter alia that on 30.06.2016 at about 8 p.m. her husband Nerson Mushahary (deceased) went to the nearby house of his father Thobra Mushahary. Later on, an argument took place between her husband and his younger brother Alongbar Mushahary i.e. the present appellant over a certain matter. Subsequently, the appellant assaulted her husband with an axe causing grievous injuries on his person. Though the injured was taken to Kachugaon Public Health Centre, he succumbed to his injury on the way.

4. On receipt of the complaint, a case was registered vide Kachugaon P.S. Case No. 53/2016 under Sections 326/302 IPC and an investigation was initiated. During investigation, the investigating officer visited the place of occurrence, recorded the statements of the witnesses and the inquest was done on the dead body of the deceased and thereafter, the dead body was sent for postmortem examination. During investigation, the weapon of assault i.e. an axe with a wooden handle was also seized by the investigating officer. After completion of the investigation, charge-sheet was submitted against the accused/appellant under Section 302 IPC before the court of SDJM(M), Gossaigaon.

5. As the offence under Section 302 IPC is exclusively triable by the court of Sessions, the case was committed accordingly.

6. During trial, on appearance of the appellant before the court of Sessions, charge was framed under Section 302 IPC which was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried.

7. To prove the guilt of the accused, the prosecution examined 7(seven) witnesses and exhibited some documents. On the other hand, the accused/appellant did not choose to adduce any evidence in his defence. After completion of trial, the statement of the accused/appellant was recorded under Section 313 Cr.P.C. wherein incriminating materials found in the evidence of the witnesses were put to him to which he denied the same and pleaded his innocence. After hearing the arguments advanced by the learned counsel for the parties, the learned Sessions Judge convicted the accused/appellant as aforesaid. Hence, the appellant has preferred this appeal.

8. Mr. Prasad, learned Amicus Curiae submits that the prosecution case is solely based upon the extra-judicial confession, which confession is neither reliable nor has been recorded in accordance with law. This extra-judicial confession cannot form the basis of conviction of the appellant since it has no corroboration and when examined in the light of the settled principles of law, it is inconsequential, thus, the accused is entitled to the benefit of doubt.

9. It is also submitted by the learned Amicus Curiae that there is neither any eye witness nor has the prosecution proved the complete chain of circumstances. The court has erred in applying the theory of last seen together to return the finding of conviction against the accused. There being no direct evidence of involvement of the appellant in the commission of the crime, the theory of last seen together could not be of any assistance to the case of the prosecution.

10. It is also the submission of learned Amicus Curiaethat the learned trial court has failed to appre