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Judgment
Ajit Singh, C.J.
The sole appellant, namely, Amin Uddin Laskar has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for
life and fine of Rs.5000/- with default stipulation. The trial court however acquitted one co-accused Saiful Alam Laskar @ Saiful Hoque Laskar
because the prosecution failed to adduce any evidence against him.
The victim of the incident was Amrul Hoque Choudhury @ Mohsin Hoque @ Mohsin Ali. He was aged about 30 years and a resident of village
Dhanehari, Part-III, falling within the jurisdiction of District Cachar, Assam.
Facts in short are these. The appellant and Amrul Hoque were co-villagers. On the night of 22.11.2006 at about 6 p.m. one Rehimuddin Choudhury
went to the house of Amrul Hoque and asked him to accompany to the house of appellant. Amrul Hoque followed suit. But, after sometime, one
another person, namely, Anowar Hussain Laskar informed Mukkabir Ali (PW-1) that his son Amrul Hoque has sustained head injuries after falling on
a rock. Mukkabir Ali immediately rushed towards the house of appellant, but on way, he found Amrul Hoque lying injured in an unconscious state in
front of the house of Sahabuddin. There he also found some other co-villagers, namely, Ali Haider Choudhury (PW-3), Abdul Rejak (PW-2), Abdul
Rahman Choudhury (PW-8), Sebur Hussain Choudhury, Kachim Ali Choudhury (PW-5) and Abdul Hoque. All these persons seeing Mukkabir told
him that Amrul Hoque was assaulted by the appellant, Saiful, Rafiul, Saidul, Basiruddin, Sahabuddin, Asik Uddin and Muslim Uddin. Amrul Hoque was
immediately taken to Police Station Sonai, but he died en-route. Then, on the next day, Mukkabir lodged the First Information Report Exhibit 1 wherein
he named as many as 13 persons (including the appellant) as the assailants of Amrul Hoque. He mentioned the names on the basis of information
given to him by the co-villagers. On receiving the information, Station House Officer -Muslim Ali (PW-15) first went to the place of occurrence and
then to the house of appellant. He also took the appellant into custody and recorded his confessional statement. Thereafter, Muslim Ali seized one dao
vide Exhibit 2 in the presence of Abdul Hussain Choudhury (PW-9) and Abdul Khalique Choudhury (PW-10) pursuant to the memorandum statement
of appellant. He also seized one Shaval vide Exhibit- 3 from the backyard of the house of Chandu Mia Choudhury at the instance of another accused
Saikul Alam.
On 23.11.2006, Dr. Manoj Kumar Sinha conducted the post mortem examination on the dead body of Amrul Hoque. He found two cut injuries on
the head and multiple abrasions on both side of elbow joints. He also found one abrasion on left arm and one abrasion over right side of the chest wall.
The doctor in his post mortem examination report Exhibit 4 opined that Amrul Hoque died due to head injuries caused by heavy sharp cutting weapon.
The appellant was produced on 27.11.2006 before the Magistrate for recording his confession. And Md. R.A. Tapadar (PW-14), who was Judicial
Magistrate, 1st Class, Silchar recorded the confessional statement Exhibit 10 of appellant. Muslim Ali after completing the investigation submitted
charge sheet only against the appellant and Saiful Alam Laskar for an offence under Section 302/34 of the Indian Penal Code. He did not file charge
sheet against remaining 11 persons named in the First Information Report because they were found to have been falsely implicated.
During trial, both appellant and Saiful Alam Laskar abjured their guilt and pleaded false implication. The appellant also retracted his confession and
while being examined as an accused under Section 313 of the Code of Criminal Procedure stated that on the night of occurrence, Amrul Hoque armed
with a dao, tried to kidnap his minor daughter Hasana Akhtar. One Samuruddin was also with Amrul Hoque and when he intervened to rescue her, a
scuffle took place between him and Amrul Hoque. The appellant also stated that he somehow managed to rescue his daughter, but cannot say how
Amrul Hoque died.
The trial court, after carefully examining the evidence adduced by the prosecution, has held that there is not one witness, who claimed to have seen
the appellant assaulting Amrul Hoque and causing his death. There is also no evidence to show that appellant had sent Rehimuddin Choudhury to call
Amrul Hoque to his house. The trial court has therefore given a finding that there is no eye witness to the incident and this finding, according to the
learned Additional Public Prosecutor, is well founded.
The trial court essentially relying upon the confessional statement of appellant as well as his admission while being examined as an accused about
the assault on Amrul Hoque convicted and sentenced him as aforesaid. As mentioned above, the trial court acquitted co-accused Saiful Alam Laskar
in the absence of any evidence against him.
It is argued on behalf of the appellant that the trial court committed an illegality in convicting him solely on the basis of retracted confession which is
a weak evidence. It has also been argued that even if the confession of appellant is accepted he is entitled to the benefit of fifth clause of Section 100
of the Indian Penal Code and therefore his conviction is bad in law. The learned Additional Public Prosecutor, Assam, on the other hand, defended the
impugned conviction and sentence of the appellant as passed by the trial court.
The record reveals that the appellant was given ample time to reflect and he was also cautioned and explained by the Magistrate about the
consequences of making confession. The appellant was taken inside the office of the Magistrate without any control of the police and we find that
Md. R.A Tapadar strictly adhered to the procedure for recording confessional statement. We are, thus, of the view that the appellant made the
confession before Md. R.A Tapadar voluntarily.
Now the question which calls for our consideration is whether the conviction of appellant under Section 302 of the Indian Penal Code on the basis
of his confession is legal and proper. To answer the same, we deem it proper to examine his confessional statement Exhibit 10, which reads as under:-
“Late Mahsin @ Amrul was my co-villager. Since the last Ramzan month, Mahsin had been speaking indecently with my minor daughter Hasana
Akhtar whenever he passed by the front of my house. I objected to his doing that and raised the matter with his father.
Around 8:00 0’clock on 22.11.2006, Mahsin broke open the door to the room of my minor daughter Hasana and kidnapped her. When my
daughter cried out, I came out of the house with a dao in hand. I saw Mahsin dragging away my daughter Hasana by her hand. Samuruddin was also
present there. Seeing me, Samuruddin ran away. But Mahsin took out a knife and tried to assault me with that. In order to defend myself and my
daughter, I then dealt a cut blow on Mahsin with the dao in my hand. My daughter went home. After dealing the blow, I too, returned home. Later, I
came to know that Mahsin had died.
I came to P.S. and surrendered. The police arrested me there.â€
A bare reading of the above quoted confessional statement clearly reveals that Amrul Hoque kept a bad eye on the minor daughter of appellant
and did not stop harassing her despite appellant objecting against his conduct. The appellant’s complaint to his father Mukkabir Ali also fell into
deaf ears. Unable to control his lust, Amrul Hoque on the night of 22.11.2006, around 8 PM, forcibly entered inside the room of appellant’s
daughter and kidnapped her. The appellant, on hearing the outcry of his daughter, came out with a dao and saw Amrul Hoque forcibly dragging her
away. The appellant also saw Samuruddin accompanying Amrul Hoque, but Samuruddin fled after seeing him. Then, Amrul Hoque tried to kill the
appellant with a knife and at that point of time, the appellant, to save himself and his daughter, hit Amrul Hoque with a dao on his hand.
Appellant’s daughter on being rescued returned home. After dealing a blow, the appellant also returned home and later he came to know that
Amrul Hoque had died. The appellant then went to Police Out Post and surrendered.
The appellant, however, retracted his confession to a major extent, while being examined as an accused under Section 313 of the Code of Criminal
Procedure. But, he maintained that on the night of occurrence, Amrul Hoque along with one Samuruddin tried to kidnap his daughter and while
rescuing her, a scuffle took place between him and Amrul Hoque. The appellant further stated that although he managed to rescue his daughter, he
cannot say how Amrul Hoque died. Even from the retracted confessional statement of the appellant it is clear that Amrul Hoque forcibly entered
inside the house of appellant and tried to kidnap his daughter by dragging her away. The appellant, then, in a bid to protect her, assaulted Amrul Hoque
with a dao. No doubt the appellant tried to conceal the fact that he assaulted Amrul Hoque. But, as seen above, immediately thereafter, Amrul Hoque
was found near the house of appellant in an injured condition. It was incumbent upon the appellant to explain as to how Amrul Hoque had sustained
injuries, which he did not explain and therefore an inference can be drawn against him that he caused fatal injuries to Amrul Hoque. At the same time,
we cannot be oblivious of the fact that Amrul Hoque tried to kidnap the daughter of appellant by using force after illegally entering his premises and
this act of Amrul Hoque compelled the appellant to inflict dao blows on him to save the honour of his daughter. Even Mukkabir Ali has admitted in his
cross examination that appellant has lodged a police report against the kidnapping of his minor daughter by Amrul Hoque.
In Viswanath vs. State of Uttar Pradesh, AIR 1960 SC 67 where the appellant’s sister was being abducted from her father’s house by
her husband, and there was an assault on her and she was being compelled by force to go away from her father’s place, the Supreme Court held
that the appellant had a right of private defence of the body of his sister against an assault with the intention of abducting her by force and that right
extended to the causing of death. In that case, the Supreme Court acquitted the appellant of the charge under Section 302 of the Indian Penal Code
who had dealt a fatal blow with a knife on the chest of his sister’s husband. Similar is the situation in the case at hand. And following the decision
of the Supreme Court we hold that the appellant had a right of private defence of the body of his daughter against an assault with the intention of
kidnapping her by force and that right extended to the causing of death of Amrul Hoque. We, accordingly set aside the impugned conviction and
sentence of the appellant and acquit him of the charge. The appellant is in jail since more than 5 years. He is directed to be released forthwith.
The appeal is allowed.