Ngula Sairiam @ Mula and Another vs State of Assam

A.K. Patnaik, J.—This appeal is directed against the judgment dated 22.7.1999 of the learned Sessions Judge, Cachar, Silchar in Sessions case No. 22 of 1998 convicting the Appellants u/s 302 IPC and sentencing them to imprisonment for life and to pay fine of Rs. 2000/- each, in default, further R.I. For six months.

The facts stated briefly, are that, on 24.11.94 the Incharge of Dwarbond Police Investigation centre received petition from Ramua Gour, Sow Kok and Nanka Lok to the effect that a dead body was lying below the house of Durgacharan at Bagbahar Part-I. The Incharge of the aforesaid Investigation centre made a GD Entry and entrusted Sri P Chanda to investigate the case. A case was registered u/s 302 IPC. Thereafter investigation was conducted. After the investigation, charge-sheet was filed against two accused Appellants. On the basis of the materials filed along with the charge-sheet, the Sessions Judge, Cachar, Silchar framed charges on 31.3.98 against two accused Appellants u/s 302 IPC. The Appellants pleaded not guilty. The trial was conducted. At the trial, 14 witnesses were examined. There was no eye witness to the occurrence. The only witnesses on whose evidence the conviction is based are PW6, 7 and 14 PW.6 has stated in his evidence that on 27.2.94 the I.O. called him while he was taking accused Ngula to his residence and this Appellant brought two daos from his residence and confessed before them that he killed the deceased with those daos. P.W.6 also witnessed the seizure of the said two daos which have been exhibited materials Exhibit 1 and 2 before the court. P.W.7 is a person whose Ambassador car was hired by the Incharge of Dwarbond Police Investigation centre. He has stated that on 22.2.94 he accompanied the Incharge of the Investigation centre and PW 6 upto the house of the accused Appellant Ngula and then accused Appellant Ngula brought out two daos from his residence and told before them that he killed the deceased with the said daos. P.W.7 is also witness of the seizure of the said two daos as exhibited as material Exhibit 1 and 2. P.W. 14 is the I.O. who has investigated the case and he has stated that he came to know that two accused Appellants had land dispute with the deceased Taipur Sariam and he arrested the accused Appellants who confessed before him that they had killed the deceased with daos and daos were kept concealed and they could bring out them if witnesses would go with them. He also stated that both the accused Appellants led them upto the house of Ngula and brought out two blood stained daos from his house and they told them that with those daos they committed the offence. On the basis of the aforesaid evidence, mainly of P.W.6, 7 and 14 the learned Sessions Judge convicted the two accused Appellants by the impugned judgement. Hence, this appeal.

Mr. CR De, learned Counsel for the Appellants submitted that Section 27 of the Indian Evidence Act, 1872 makes it clear that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, which relates distinctly to the fact thereby discovered is admissible in evidence. According to Mr. De the confession of the accused Appellants before PW 14 that they had killed the deceased with the daos is not admissible u/s 27 of the Evidence Act. In support of the aforesaid submission, Mr. De relied on the decisions of the Supreme Court in Baboo v. State of M.P. AIR 1979 SC 1042 and Pohalya Motya Valvi Vs. State of Maharashtra,

Mr. TJ Mahanta, learned Public Prosecutor, Assam did not dispute the aforesaid proposition of law that the confession of two accused Appellants before the PW 14 (I.O.) that they had killed the deceased with the daos is not admissible u/s 27 of the Evidence Act. He, however, submitted that the fact of recovery of two daos on the showing of two accused Appellants in consequence of information received by the PW14 from the two accused Appellants is admissible u/s 27 of the Evidence Act.

There cannot be any dispute about the well settled proposition of law that u/s 27 of the Evidence Act only so much of information received from the accused as relates distinctly to the fact thereby discovered in consequence of such information from the accused in custody of police officer is admissible. Hence, the information given by two accused Appellants to PW 14 that two daos have been kept concealed and they could bring out those daos was admissible u/s 27 of the Evidence Act and the confession made by two accused Appellants before PW 14 that they had killed the deceased with the daos is not admissible in evidence.

Mr. De submitted that besides information received from the Appellants & by PW 14 that two daos have been kept concealed and they could bring out two daos, no other evidence was available before the court for conviction of the two accused Appellants. According to Mr. De the confession made by two accused Appellants before PWs 6 and 7 who were witnesses to the seizure of the daos were also not admissible as the confession was made by the two accused Appellants while in custody of the police and Section 26 of the Evidence Act expressly provided that such confession made by any person while he was in the custody of a police officer could not be proved against such person. In support of this submission, Mr. De cited the decision of the Supreme Court in Kishore Chand Vs. State of Himachal Pradesh, Mr. TJ Mahanta, learned Public Prosecutor, on the other hand, submitted that it would appear from the evidence of PW 6 and 7 that the aforesaid confession made by two accused Appellants before PWs 6 and 7 that they had killed the deceased was voluntary in nature. Therefore, this confession could be taken into consideration by the court for convicting the two accused Appellants. Mr. Mahanta cited the following decisions of the Supreme Court in Baldev Raj Vs. State of Haryana, , Maghar Singh Vs. State of Punjab, , Abdul Ghani Vs. State of U.P., , State of U.P. Vs. M.K. Anthony, , Vinayak Shivajirao Pol Vs. The State of Maharashtra, in support of his argument that extra judicial confession of an accused, if voluntary, can be relied on by the court for convicting the accused.

We find from the evidence of PW 14 (I.O.) that he came to know that the accused Appellants Ngula Sairiam and Anga Tuallai had land dispute with the deceased Taipur Sariam and he arrested the said accused Appellants and they confessed before him and the witnesses that they had killed the deceased with the daos. P.W.s 6 and 7 are the witnesses before whom the aforesaid extra judicial confession is said to have been made by the two accused Appellants. P.W.6 has stated mat on 22.2.94 the I.O. called him while he was taking accused Ngula to his residence and these accused brought out two daos from his house and confessed before ''us'' that he had killed the deceased with those daos. P.W. 7 has stated that he accompanied the Incharge of the Investigation centre and PW 6 upto the house of the accused Ngula and then accused Ngula brought out two daos from his house and told before ''us'' that he had killed the deceased with the said daos. On bare reading of the aforesaid evidence of PWs 14, 6 and 7 it is clear that the so called confession by the two accused Appellants that they had killed the deceased with two daos was made while they were in custody of the police officer. Section 26 of the Evidence Act expressly states that - "No confession made by any person while 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." Thus, the confession made by two accused Appellants while in custody of the police officer that they had killed the deceased with two daos was not at all admissible u/s 26 of the Evidence Act and could not be at all taken into consideration by the court of convicting the accused Appellants.

If the aforesaid extra judicial confession made to PWs 6 and 7 is excluded from consideration, the only evidence available against the two accused Appellants is that as a consequence of information received from them, two daos were kept concealed and recovered from the house of the Appellant Ngula, but this circumstances alone does not link two accused Appellants with the offence of murder u/s 302 IPC because, it is not clear from even the said confession that the Appellants had concealed the blood stained daos. In Pohalya v. State of Maharashtra (supra) the Supreme Court has held that the recovery of murder weapon becomes incriminating not because of its recovery at the instance of the accused, but the authorship of its concealment. It is well settled that where no eye witness is available, the offence is to be established by the prosecution by a complete chain of circumstances and the only hypothesis to be inferred from the chain of circumstances must be that the accused had committed the offence. We find that the prosecution has not been able to establish the chain of circumstances from which the only conclusion that can be inferred is that the Appellants had committed the offence of murder u/s 302 IPC. We are, therefore, of the opinion, that the two accused Appellants are entitled to the benefit of doubt. 9. For the aforesaid reasons, the appeal is allowed. The conviction and sentence imposed on the Appellants by the impugned judgment dated 27.7.99 of the learned Sessions Judge, Cachar at Silchar in Sessions case No. 27/1998 are set aside and the Appellants be discharged forthwith if they are not required in some other cases.