DULU BASAK @ PETLA and ANR vs THE STATE OF ASSAM

Ajit Singh, C.J.

1.The two appellants, namely, Dulu Basak @ Petla and Lasman Basfor @ Bharkalu have been convicted under Section 302/34 of the Indian Penal

Code and sentenced to imprisonment for life and fine of Rs.5000/- each, with default stipulation.

The victim of the incident was aged about 35 years. She was married, but was deserted by her husband as she was mentally derailed. She,

therefore, used to live with her father - Musharaf Ali (PW-9). She also used to roam around in the village and did virtually nothing.

On 13.6.2011, Kamaluddin Ahmed (PW-4) was posted as Constable in the Kalaigaon Police Station, District Udalguri. On that day, he hired a

vehicle for patrol duty. The vehicle was of Md. Imran Ali (PW-1). Around 11 PM, while Kamaluddin Ahmed was on petrol duty and the vehicle was

being driven by Md. Imran Ali, he noticed one person near Singimari Lower Primary School under suspicious circumstances. He, therefore, went near

the school, but the person fled. Going further, Kamaluddin Ahmed saw dead body of a woman lying in the veranda of school. The body also had

injuries. He immediately informed the Officer In-charge - Sekhar Biswas (PW-15) of the Police Station over telephone. Later, the victim was

identified by her father - Musharaf Ali, a resident of Puthiakhat, who lodged the First Information Report on 14.6.2011 against unknown persons.

The Station Officer - Sekhar Biswas rushed to the place of occurrence. There he prepared the inquest report Exhibit 1 of the dead body. He also

referred the dead body for post mortem examination. On the next day, Sekhar Biswas arrested appellant - Lasman Basfor. During interrogation,

Lasman Basfor confessed that he along with appellant - Dulu Basak first committed rape on the victim and when they again tried to commit rape for

the second time, she resisted and then they committed the murder by hacking her with a pruning dao. On his tip off, Sekhar Biswas arrested Dulu

Basak also. Coming to know about the incident, many persons including Gauri Das (PW-5), Animesh Guru (PW-6), Biplab Sarkar (PW-7) and

Bhagwan Deka (PW-8) visited the Police Station. And, in the chamber of Station Officer â€" Sekhar Biswas, Gauri Das, Biplab Sarkar and Bhagwan

Deka heard appellants â€" Dulu Basak and Lasman Basfor making an extra judicial confession of their first raping and then committing the murder of

victim. Likewise, Md. Imran Ali and Musharaf Ali also heard them making the same extra judicial confession at the Police Station. From the Police

Station, Dulu Basak and Lasman Basfor were taken to the place of occurrence by the Police, where they again made the same confession before

Animesh Guru. At the place of occurrence, pursuant to the confession of Dulu Basak and Lasman Basfor and on their showing, Sekhar Biswas seized

one dao in the presence of Rafakat Hussain (PW-11), Kooseswar Nath (PW-12) and Kuseswar Barman (PW-16). The seizure of pruning dao is

Exhibit -4.

Dr. Pradeep Kumar Nath (PW-3) conducted the post mortem examination on the dead body of victim. He found two deep cut injuries â€" one was

on the left side of neck and the second was over right scapula region. The doctor, in his post mortem examination report Exhibit 2, opined that the

cause of death was due to deep cut injuries caused by sharp cutting object. The doctor, however, nowhere mentioned any sexual abuse on the victim.

The Police, after completing the investigation, submitted charge sheet Exhibit 5 against the appellants for an offence under Section 302/34 of the

Indian Penal Code.

During trial, the appellants abjured their guilt and pleaded false implication. But the trial court, essentially, relying upon the extra judicial confession

made by the appellants, convicted and sentenced them as aforesaid. The trial court relied upon the evidence of Kamaluddin Ahmed and the seizure of

pruning dao from the possession of appellants in convicting them.

Learned counsel for the appellants has argued that in the absence of any reliable and cogent evidence against the appellants, the trial court has

committed an illegality in convicting them. Learned Additional Public Prosecutor, on the other hand, has defended the conviction and sentence as

passed by the trial court.

There is no eye witness to the incident and the entire case of prosecution is based on circumstantial evidence mainly extra judicial confession of the

appellants and recovery of pruning dao on their showing. All the witnesses of extra judicial confession, namely, Gauri Das, Biplab Sarkar, Bhagwan

Deka, Md. Imran Ali and Musharaf Ali have fairly stated in one voice that the appellants had made confession in the office chamber of the

Investigating Officer at the Police Station. Likewise, Animesh Guru, Rafakat Hussain, Kooseswar Nath and Kuseswar Barman have also admitted

that the appellants had made the confession at the place of occurrence in the presence of Police. It is well settled law that Sections 25 and 26 of the

Indian Evidence Act must be construed strictly. Therefore, by operation of Section 26 of the Indian Evidence Act, the confession made by the

appellants, while they were in the custody of Police Officer, cannot be proved against them. This being the legal position, the trial court, in our

considered view, committed an apparent illegality in relying upon the evidence of extra judicial confession made by the appellants, while they were in

the custody of Police. There is yet another reason to discard the evidence of extra judicial confession. According to the witnesses, the appellants

confessed to have committed rape on the victim and when they again wanted to commit rape for the second time, she resisted and, therefore, they

committed her murder. But the post mortem examination report nowhere mentions that the victim was subjected to any sexual abuse. Therefore, the

post mortem examination report also creates a doubt on the truthfulness of the extra judicial confession said to have been made by the appellants.

As regards the evidence of seizure of pruning dao, we are of the view that it does not connect the appellant with the commission of crime. The

incident took place inside a Tea Garden, where pruning dao is commonly used to prune tea leaves. Also no blood stains or finger prints of the

appellants were found on the seized dao. The pruning dao was, in fact, not even sent to the Forensic Science Laboratory to ascertain the presence of

blood stains. Moreover, none of the witnesses have stated from where exactly the pruning dao was seized. Instead, Kuseswar Barman has deposed

that the dao was seized from the bank of river in the south of the school. Therefore, the possibility of dao being seized from the open place cannot be

ruled out. Besides, the seized dao was not produced in the court.

Lastly, Kamaluddin Ahmed has deposed that while on patrol duty, he saw the appellants coming out from the school and running away. But his this

evidence is not reliable because he did not say so before the Police during investigation. At that time, Kamaluddin Ahmed merely stated that he saw

someone running from the school and suspecting something, he visited the school and found the victim’s dead body.

For these reasons, the impugned judgment and order cannot be sustained. We, accordingly, set aside the conviction and sentence of the appellants

and acquit them of the charge. They are reportedly in jail and hence, they be released forthwith.

The appeal is allowed.