Md. Asgar vs The State of Bihar (now Jharkhand)

Six persons, including the Appellant were charged u/s 302/ 34 of the Indian Penal Code. By the impugned judgment, five persons have been given benefit of doubt and were acquitted while the Appellant has been held guilty of the charge u/s 302/ 34 I.P.C. and he has been sentenced to undergo rigorous imprisonment for life.

The prosecution was launched on the basis of fardbeyan of Jarban Devi (P.W.9) dated 6.2.1993.

The prosecution case, according to the fardbeyan, is that on 5.2.1993 at midnight while the deceased-Radhe Rai was sleeping along with his wife-Jarban Devi-informant-P.W.9 and daughters-Sunaina Kumari-P.W.3 and Niru Kumari @ Niro-P.W.4, six miscreants entered in the house and one of them asked the deceased regarding whereabouts of his arms. When the deceased denied to have any arms, one of the miscreants asked the others to tie down his hands and legs with rope. Three of them thereafter tied the legs and hands of the deceased and gave chhura (knife) blow. When the informant intervened, she was also assaulted with butt of Pistol. She identified the assailant as Satto Rai in the full moon light and also by voice. The informant claimed that six of the miscreants killed her husband by inflicting chhura blows and thereafter all of them fled away. The reasons behind the occurrence was long standing land dispute in between deceased-Radhe Rai and accused-Satto Rai.

On the basis of the said fardbeyan of the informant, the Police registered the case u/s 302/ 34, 307 and 323 I.P.C. against Satto Rai, named accused and five unknown. The police, after investigation, submitted charge sheet against six persons i.e. Satto Rai, Md. Asgar-Appellant, Ganesh Rai, Sk. Chunia, Sk. Farukh and Sk. Fakruddin u/s 302/ 34 and 323 I.P.C.

The charges were framed and the case was committed to the court of sessions. The accused-Appellant denied the charges and claimed to be tried. He was put on trial. In his examination u/s 313 Code of Criminal Procedure, he denied to have committed any offence. According to the Appellant, he is innocent and has been falsely implicated in the case.

In course of investigation, an application was filed by the joint signatories of 11 villagers before the Officer-in-Charge in which it was alleged that the Appellant was found wandering in the village on the day of Sradh of the deceased. He was caught in suspicious condition by the villagers and before whom he had made culpatory statement disclosing that the accused-Satto Rai had hired 8(eight) criminals including the Appellant for killing Radhe Rai on payment of Rs. 4,000/-. Accomplishing the same, the Appellant had gone there to realize the said amount.

The prosecution in order to establish the charges levelled against the accused-Appellant altogether examined 16(sixteen) witnesses.

P.W. 1-Chhatriya Rai is a hostile witness; P.W.2-Hazari Rai is a co-villager and if a witnesses of post occurrence, P.W.3-Sunaina Kumari and P.W.4-Nira Kumari @ Niro-daughters of the deceased, who are to be present at the time of occurrence, have not named this Appellant, P.W.5-Brhamadeo Rai has proved the application given by the villagers with joint signatures (Exhibit-1). He is said to be one of the signatories on the application in which there was a version of extra judicial confession of the Appellant, P.W.6-Kartic Rai is a tendered witness, P.W.7-Harilal Rai is also not the witness of the occurrence, P.W.8-Harish Chandra Rai is said to be one of the signatories on the application regarding extra judicial confession, P.W.9-Jaraba Devi-wife of the deceased and the informant of the case has neither named this Appellant nor identified him in dock. P.W.10-Jiwan Rai is a hostile witness, P.W.11-Dr. Kaushalya Kaushal was examined to prove the alleged injury on the person of the informant but no injury report was brought on record neither the doctor could say anything about the injury on the person of P.W.9, P.W.12-Dr. Dilip Kumar Choudhary had conducted Post Mortem on the dead-body of the deceased, P.W.13-Sikander Rai is another signatory on the application containing the alleged statement regarding extra judicial confession by the Appellant. He is also a witness to the seizure list (Exhibit-5) and the inquest report (Exhibit-6), P.W.14-Panchanand Rai is the son of the deceased. He himself has stated that on the date of occurrence, he was in Punjab, P.W.15-Vikash Rai was tendered and P.W.16-Vishnu Rajan is the Investigating Officer.

The prosecution also proved his documents in order to prove the case. The application containing the alleged statement regarding extra judicial confession, signed by several villagers, were brought on record and marked as Exhibit-1; signature of P.W.8 on the said application was marked as Exhibit-2; Fard beyan has been marked as Exhibit-3, Post Mortem Report has been proved and marked as Exhibit-4, Seizure list has been proved and marked as Exhibit-5, Exhibit-6 is the Inquest report and Exhibit-7 is the signature of the Investigating Officer on the F.I.R.

Learned court below discussed the issue in detail and discarded the evidences of P.W.1, P.W.2, P.W.3, P.W.4, P.W.6, P.W.7, and P.W.15, the same being not reliable and trustworthy.

On reading the aforesaid evidence of the witnesses along the testimony of P.W.5, P.W.13, P.W.14 and P.W.16, learned court below held that the prosecution failed to prove the charge levelled against the accused- Satto Rai, Ganesh Rai, Sk. Chunia, Sk. Farukh and Sk. Fakruddin and given them the benefit of doubt and acquitted them of the said charges.

However, learned court below placed strong reliance on the alleged self culpatory statement made before the villagers by this Appellant as mentioned in Exhibit-1, the application signed by several villagers and to that regard also relied on the statement of P.W.5, P.W.13 and P.W.14 held the Appellant, guilty of the charge u/s 302/ 34 I.P.C. and convicted and sentenced him as aforesaid.

The Appellant is in jail custody and has preferred jail appeal.

Mr. B.K. Pandey, learned Counsel appeared on behalf of the Appellant as Amicus Curiae. Learned Counsel assailed the impugned judgment and conviction of the Appellant mainly on two grounds. Learned Counsel submitted that it is evident from the evidences of P.W.8-Harish Chandra Rai and P.W.16-Vishnu Rajan-Investigating Officer that the alleged statement, which is said to be self culpatory statement by the Appellant, was made after he was arrested and he was in police custody. Though the Appellant has denied to have made any such statement, even if the entire prosecution version is accepted, the said statement made in the circumstance admitted by the prosecution cannot be termed as self culpatory statement and the same is not admissible in evidence. The alleged statement made in police custody is hit by Section 26 of the Evidence Act and the same cannot be used against the Appellant and that cannot be a legal basis for conviction of the Appellant. The learned court below has erroneously used the said statement as the self culpatory statement of the accused and has also relied on the related statement of P.W.5, P.W.13, P.W.14 and P.W.16, which are not admissible in evidence. Learned Counsel submitted that there is absolutely no legal basis on record to support the impugned judgment and conviction of the Appellant. P.W.9-informant has specifically named one Satto Rai. His name has also come in the said confessional statement. The names of other accused persons have also appeared in the same application (Exhibit-1), but the said evidences have not been relied upon as the admissible evidence to support the charges against the other accused persons. They have been given benefit of doubt by the learned court below and those accused persons have been acquitted whereas the same evidence has been used for convicting and sentencing the Appellant. The three eye witnesses were named by the prosecution, namely, P.W.9-Jarban Devi(informant), P.W.3-Sunaina Kumari and P.W.4-Nira Kumari @ Niro, but none supported the prosecution version and none identified the Appellant as one of the miscreants. Learned court below has also accepted the said position, but erroneously placing strong reliance on Exhibit-1-application of the villagers containing the name of this Appellant along with other five accused persons, the Appellant alone has been convicted while the others have been given benefit of doubt. Learned Counsel submitted that this is a case of no evidence against the Appellant as the evidence, which has been used by the learned court below for convicting him, is not admissible in law. The prosecution has, thus, failed to prove the charges against the Appellant, but he has been illegally and erroneously convicted by the learned court below.

Learned Addl.P.P., appearing on behalf of the State, on the other hand, supported the impugned judgment. He has submitted that the confessional statement in this case was not made before the police, but it was made before the villagers and, as such, this cannot be said to be a version made before the police. Learned court below has rightly relied on the said confessional statement as also the evidences of P.W.5, P.W.14 and P.W.16 and there are ample materials of evidence on record to prove complicity of this Appellant and to prove the charge against him.

Having heard learned Counsel (Amicus Curiae) for the Appellant and learned Addl.P.P., we meticulously scrutinized the evidences on record. We find that the evidence of P.W.5, P.W.13 and P.W.14, which have been adduced against the Appellant, is that he had made confessional statement of his guilt before the villagers. Those witnesses have come to support the said statement.

On going through the Exhibit-1-application, which is said to be confessional statement of the Appellant, we find that this Appellant is said to have disclosed before the villagers that he was apprehended by the villagers and was interrogated. He said that accused-Satto Rai had engaged the miscreants for killing Radhe Rai on consideration of Rs. 4,000/-. The Appellant and other seven criminals were hired at the time of occurrence. The Appellant and one Sk. Fakruddin were watching outside the deceased house while accused-Sk. Chunia, Sk. Farukh, Ganesh Rai and Naresh Yadav had entered the deceased house and murdered him.

Curiously, we find that though the said version has been believed along with the statement of several evidences for convicting this Appellant, the same set of evidence has been disbelieved so far other accused are concerned and they have been given benefit of doubt and were acquitted.

On reading the evidences of P.W.5, P.W.8 and P.W.16-I.O. (Paragraph-38 of the deposition), we find that the statement is said to be made by the Appellant while he was in police custody. P.W.16-I.O. in the said paragraph has clearly stated that the Appellant has made confessional statement before him. We find substance in the submissions of the learned Amicus Curiae that in view of the said admitted position, any statement made in police custody is hit by the provisions of Section 26 of the Evidence Act and the same cannot be used against the Appellant for convicting him. Since the conviction is solely the basis on the said so-called self culpatory statement made by the Appellant, which is inadmissible as evidence, we find the impugned judgment and conviction of the Appellant is not based on any legal evidence and is perverse. The impugned judgment and conviction of the Appellant is, thus, not sustainable in law.

In the result, we allow this appeal, set aside the impugned judgment and conviction and sentence of the Appellant in Sessions case Nos. 135 of 1993/29 of 1993. He is acquitted of the charge. The Appellant, who is in custody, is ordered to be set at liberty forthwith, if he is not wanted in any other case.

Before we part, we record our appreciation for the valuable assistance rendered by Mr. B.K. Pandey. who appeared as Amicus Curiae.