Hiren Thakur and Others vs The State of West Bengal

Patherya, J.

This appeal is directed against the order of conviction and sentence dated 26th April, 2001 and 27th April, 2001, passed by the Additional Sessions Judge, Raiganj, Uttar Dinajpur, in Session Trial No. 03 of 1998 arising out of Sessions Case No. 50 of 1997. By the said judgment the accused/appellants have been convicted under Sections 302/34, 376(2)(g)/34 and 201/34 of the Indian Penal Code. The said sentences are to run concurrently.

The facts of the instant case is as follows:

The victim girl visited the house of P.W. 4, Commissioner of Kaliaganj Municipality, on 2nd November, 1992 to take a ''chadar'' from his wife. As the wife of P.W. 4 was not there, it is the case of the prosecution that she returned home. On her way home she met Lily Sarkar, (P.W. 8) and Mamoni, both being her friends.. The victim was seen last at the gate of her house by one Keshab Mohanta, uncle.

On 21st November, 1992, an attempt was made to find out the whereabouts of the missing girl. As no information was received, a GD entry was made with the local police station, being Kaliyaganj GDE No. 711 dated 22nd November, 1992.

On 25th November, 1992, the body of the victim girl was discovered in the field in front of Chandmoyee School. The brother, P.W. 1 filed an FIR being Kaliaganj Police Station Case No. 180 of 1992, dated 25th November, 1992. On registration of FIR investigation was undertaken and thereafter inquest was made and the body of the victim sent for post mortem. From the post mortem report it appears that the body was in decomposed condition, the hymen was raptured and the vaginal wall lacerated. The death was due to shock and was termed as ante mortem and homicidal in nature. One cut-throat wound was also found on the front of the neck by the post mortem surgeon and was recorded in the post mortem report and substantiated by his evidence.

During the course of investigation on 1st December, 1997, the accused appellants along with Gopi and Sitesh were arrested. Thereafter, bail was granted to all the accused and after grant of bail Gopi and Sitesh jumped bail and absconded and even this day are absconding.

On completion of investigation charges were framed under Sections 302/34, 376 (2)(g)/34 and 201/34 of the Indian Penal Code and on the charge being read out and explained to the accused/appellants, the accused/appellants pleaded not guilty, therefore, trial was undertaken.

At the time of trial, as many as 20 witnesses were examined, oral evidence adduced, documents were also exhibited. On consideration of the oral and documentary evidence, the trial court passed an order of conviction against the accused/appellants, including Gopi and Sitesh.

Being aggrieved by the said judgment and order, the accused appellants filed the instant appeal.

Counsel for the accused/appellants submits that evidence of P.W. 1, (brother) de facto complainant, is nothing but hearsay as he derived information from Pallav, P.W. 7 and Lily, P.W. 8. Although it emerges from the evidence of P.W. 1 that the victim girl reached near the gate of her house and was seen by her uncle, Keshab Mohanta. Keshab Mohanta was not cited as witness by the prosecution though he was the person who last saw the victim. P.W. 2 is the friend of P.W. 1 (brother) and a witness to the recovery of the dead body. P.W. 3 is the father of the victim and his evidence is only relevant to the extent of arrest of Gopi on 25th November, 1992. Evidence of P.W. 4, P.W. 6, P.W. 10, P.W. 11, P.W. 12, P.W. 14 and P.W. 15 is of no relevance, as each of the witnesses has been declared hostile. The evidence of P.W. 16 is formal in nature. P.W. 9 is the only witness who has supported the case of extra judicial confession and it is on the basis of this extrajudicial confession that the accused/appellants was convicted.

On 2nd December, 1992, the accused appellants along with Gopi and Sitesh were produced before the learned SDJM, Raiganj. The I.O. prayed for recording of the confessional statement under Section 164 of the Criminal Procedure Code. Such prayer was allowed and the accused/appellants were directed to be produced before the learned Judicial Magistrate for recording of their statement. On the same date the accused persons were produced before the learned Judicial Magistrate for recording of their statement and on production, each accused/appellant individually and separately declined to make such statement. In fact, from the evidence of P.W. 20, I.O. it will appear that it was only after the accused/appellants were arrested, examined and implicated, the B.D.O., P.W. 19 was informed and thereafter he reported to the P.S. The B.D.O. has no role to play in the recording of extra-judicial confession or statement. Evidence of recording of confessional statement is belied by the order sheet dated 2nd December, 1992. In the absence of such confessional statement, the conviction of the accused/appellants calls for interference and the judgment and order dated 26th April, 2001 and 27th April, 2001 be set aside.

According to P.W. 1 on 20th November, 1992, the victim left home to collect ''chadar'' and did not return. On 21st November, 1992, it was learnt by P.W. 1 (brother) that the victim girl was not in the house of P.W. 4, Commissioner of the municipality and she had gone missing. This is corroborated by the evidence of P.W. 5 (mother). According to P.W. 1 (brother) the victim did not stay overnight at anybody''s house except that of P.W. 4. On realizing that the victim girl was missing, a missing diary was lodged on 22nd November, 1992. This conduct raises suspicion about the victim girl going missing from the house of P.W. 4. There are two versions of the victim girl going missing. While P.W. 3 and P.W. 5 have stated that she went missing from the house of P.W. 4. From the evidence of P.W. 16 and from the GD entry (Exhibit-5), it will appear that the victim girl went missing from her house. Keshab Mohanta, uncle, found the victim girl near the gate of her house, but Keshab Mohanta, uncle, was not examined. Mamoni, the friend has also not been examined. Pallav, P.W. 7 and Lily, P.W. 8, were with the victim girl. Therefore, according to the FIR, Lily, Mamoni, Pallav and Keshab, lastly saw the victim girl. But out of the said persons P.W. 7, Pallav and P.W. 8, Lily have only been examined. Mamoni and Keshab were not examined or cited. Lily, Mamoni and Keshab have not been arrested.

It is on the basis of source information that arrest was made from the village. Based on the extra-judicial confession, conviction has been granted and in view of Section 26 of the Indian Evidence Act, 1872, so also the decision reported in 2012 (2) C.Cr. L.R. (Cal.) 172, no confession made by any person while he is in the custody of the police officer shall be proved against him unless it is made in the immediate presence of a Magistrate. In the instant case, admittedly, the extra judicial confession or statement has not been made in the presence of a Magistrate, as will appear from the evidence of P.W. 20, (I.O.). P.W. 19 has denied the implication of persons arrested in the offence but has admitted the presence of police personnel and himself in the room.

P.W. 19 is the B.D.O. and admittedly not the authority before whom an extra-judicial confession is to be recorded. The extra-judicial confession, on which reliance has been placed, is non-existence.

The offending weapon, which was recovered from Gopi, was neither labelled nor blood detected thereon as per the FSL report. The blood of the accused/appellants was also not taken for matching, as no blood was taken from the body of the victim. The allegedly offending weapon when produced before the P.W. 19, he stated that the said offending weapon may be the knife produced by Gopi. Therefore, the offending weapon has also not been identified. For all the aforesaid reasons the order of conviction be set aside.

Counsel for the State respondent submits that the conviction is based on the extra-judicial confession, which is no confession as per Section 26 of the Evidence Act, as the extra-judicial confession was made before the police officer and not before the Magistrate as per law. Therefore, order be passed, as deemed fit by this Court.

Having considered the submissions of the parties, in the instant case 20 witnesses were examined in all. P.W. 4, P.W. 6, P.W. 10, P.W. 11, P.W. 12, P.W. 14 and P.W. 15 have been declared as hostile witnesses. P.W. 16 and P.W. 18 are formal witnesses. P.W. 1 is the de facto complainant and his evidence is nothing but hearsay. Therefore, the only witnesses, which are of relevance are P.W. 2, (friend), P.W. 3 (Father), P.W. 5, (mother), P.W. 7 and P.W. 8, (friends). P.W. 9 who has supported the case of extra judicial confession, P.W. 17 (doctor), P.W. 19, (BDO) and P.W. 20, (I.O.).

The trial Court has relied on the evidence of P.W. 9, P.W. 19 and P.W. 20 and passed the order of conviction. Therefore, the evidence of the aforesaid persons is of great importance. P.W. 9 is the co-villager and he has deposed that the accused/appellants along with Gopi and Sitesh assembled in the village in the presence of the BDO and the police and it was in their presence that the extrajudicial confession was made. This has been corroborated both by P.W. 19 and P.W. 20. But the evidence of P.W. 9, P.W. 19 and P.W. 20 needs to be considered in the light of Section 26 of the Evidence Act.

Section 26 has categorically stated that no confession made by any person while in the custody of a police officer shall be proved against him unless it is made in the immediate presence of a Magistrate. For the purposes of convenience Section 26 of the Evidence Act is set out hereinbelow:-

"26. Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person".

In the instant case the extra-judicial statement or confession has been recorded before the BDO. At the time of deposition he was discharging functions of an Executive Magistrate but on the date of incident he was functioning as a B.D.O. and cannot be regarded as a Magistrate. Therefore, extra-judicial confession or statement made is not a statement made in accordance with law and therefore, Section 26 of the Evidence Act will come to the aid of the accused/appellants. Moreso, in the light of the decision reported in 2012 (2) C.Cr.LR (Cal.) 172 (State of West Bengal vs. Amar Rai)

In view of the aforesaid, therefore, the extra-judicial confession cannot be made the basis of the order of conviction and ought to have been kept out of the zone of consideration while determining the guilt of the accused/appellants and it is only for not doing so, that the order of conviction dated 26th April, 2001 and 27th April, 2001 cannot be sustained in the eye of law and is accordingly set-aside.

Before parting with the case it will be relevant to mention that as per the evidence of P.W. 17, P.M. doctor the hymen was raptured and the vaginal wall lacerated, the death was due to shock. But this does not form the basis of conviction, therefore, need not be considered.

In view of the aforesaid, this appeal succeeds. The accused/appellants are serving sentence in Raiganj District Correctional Home. Accordingly, let the certified copy of the order, passed this day, be communicated to the Superintendent of the Raiganj District Correctional Home, for immediate release of the accused/appellants on receipt of the said order.

Let such order be communicated through the department.

By order dated 3rd October, 2001, bail had been granted to the accused/appellants but such bail was cancelled by an order dated 18th April, 2011 and it is pursuant thereto that the accused/appellants have been taken in custody.

Criminal Section is directed to supply urgent photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities. The Criminal Section is also directed to transmit the Lower Court Records to the Learned Additional Sessions Judge, Raiganj, district Uttar Dinajpur (the Trial Court) along with a copy of this judgment forthwith for information and for necessary action.

Articles seized should not be destroyed as accused Gopi Das and Sitesh Ghosh are absconding and the case as against them is pending.

Indrajit Chatterjee, J.

I agree.