JUDGMENT
S. Haque, J.
1. Accused Azim Ali and Jarina Khatun had been convicted Under Sections 302 & 201 readwith Section 34 of the IPC vide judgment dated 26-4-1986 passed by the Sessions Judge, Dhubri in Sessions Case No. 7(D)/ 1985 arising out of G.R. Case No. 857/84.
2. Md. Azizur Rahman father-in-law of deceased Nasimuddin lodged the FIR on 27th July, 1984 alleging that his daughter Musstt. Jarina Khatun and Azim Ali murdered Nasimuddin and buried the dead body inside the house. Exhibit 1 was the FIR. During investigation the dead body was disentered from inside the house of Jarina Khatun on 27-7-1984 and post mortem examination was held. Dr. Abdul Mazid (P.W. 12) held post mortem examination. Sixteen wounds on the body of the deceased over forehead, left and right nostril, right Mandibular region, right cheek, right ear, right plura, right shoulder and left eye; and 6 penetrating injuries placed on the sternum upper third, epigastrium region, left limber region, right hypochondrium and below the castral margin were found. Abdomen-peritonium was full of blood, intestine torn transversely about 2″, liver ruptured gall bladder ruptured, gastro-hepatic omentum was torn vertically, spleen cut transversely 1″, frontal bone above the spleen was fractured and right mandible fractured. The medical expert opined that death was due to shock and haemorrhage as a result of injuries which were homicidal and ante-mortem. Trial court accepted the opinion of the doctor. In view of the nature of multiple incised and penetrating wounds, We fully endorse the finding of the trial court and accepted the opinion of the doctor.
3. There was no dispute on the fact of death of Nasimuddin in the night of 26/27th July, 1984. The dead body was buried inside his house, and was disentered in the afternoon of same day.
4. The only point for determination before the trial court was whether accused Azim Ali and Jarina Khatun, in furtherance of their common intention, caused those injuries resulting death of Nasimuddin. This point will be examined on the basis of evidence on record.
5. P.W. 1 Azizur Rahman is the father of Jarina Khatun. He resides in the same village. His grandson Noor Alam (P.W. 5) informed him about the occurrence at about 7 a.m. on 27th July, 1984. Azizur Rahman came to the house of deceased Nasimuddin and learnt details about the occurrence. Azim Ali was not found in the house but after some time the villagers caught him and brought to the house of deceased Nasimuddin.
6. PWs. 1, 4, 6, 7, 9 and 10 deposed corroboratively that Azim Ali made extra judicial confession before them that he along with Jarina Khatun killed Nasimuddin and buried the body inside the house. We have carefully examined the evidence of these witnesses on the fact of extrajudicial confession. They are all independent witnesses and had no reason to manufacture false evidence to implicate Azim Ali. They are found to be trustworthy witnesses. Their evidence on the fact of making extra judicial confession by Azim Ali is accepted. It was proved that accused Azim Ali made extra judicial confession of killing Nasimuddin.
7. P.W. 5 Noor Alam was aged about 12 years at the relevant time. He is the son of deceased Nasimuddin from first wife. Accused Jarina Khatun is his step mother. Noor Alam was sleeping in the same bed with accused Azim Ali in the next house adjoining to deceased Nasimuddin. The deceased and his wife accused Jarina Khatun slept in the other house. At dead of night he saw Azim Ali going out with a dagger and dao on the plea that he would cut a snake. After a while Noor Alam heard out-cry of Nasimuddin uttering, ‘Azim you have committed this’ and shortly thereafter he saw Azim Ali coming out of his father’s (Nasimuddin) house with blood stained weapons and on the query Azim replied that he had cut a snake and asked him not to visit house of his father and to sleep. Next morning Noor Alam found his father missing. On query, he could know from step mother Jarina Khatun that Azim Ali murdered his father, whereupon Noor Alam informed grandfather Azizur Rahman (P.W. 1).
8. Both Mr. T.C. Majumder and Mr. M. Singh submits that Noor Alam was a child witness and his evidence could not be relied upon being tutored. He was 12 years at that time. Child of such age can be a competent witness with intellectual capacity and capability of giving rational account of what he has seen or heard. The trial court was the best judge to decide because the witness deposed before him. There is no rule of law that evidence of a child witness cannot in any circumstance be acted upon without any corroboration of direct nature, but corroboration of proved circumstantial evidence or a confession, would be enough to base a conviction. In the instant case, child witness Noor Alam was capable of giving reasonable account as found from his straightforward deposition and his version was found consistent at the investigation stage as well as at the trial. The trial court had opportunity to see him, noticed his demeanour, recorded his evidence and thereafter on scrutiny accepted his testimony. He deposed straightforwardly without any significant contradictions on the material facts of the occurrence. He saw Azim coming out of his father’s room with blood stained weapons, after few hours Azim made extrajudicial confession and then Jarina made confession and all these had corroborated child witness Noor Alam. There can be no reason to take different view than that of the trial court in respect of the child witness. His evidence to the fact that he saw Azim Ali going out with a dao and dagger in hand and coming out of his father’s room with a blood stained weapon cannot be disbelieved. His evidence is accepted.
9. The extrajudicial confession of accused Azim Ali had been corroborated with the circumstantial evidence of Noor Alam (P.W. 5) and the fact of recovery of the dead body of Nasimuddin from inside the house.
10. Generally extrajudicial confession by itself is known to be a weak piece of evidence, hence scrutiny of it with caution is necessary. When fact of extrajudicial confession of an accused comes through witnesses having no interest to falsely implicate the accused and it is found free from any suspicion as to its voluntary character and bears a ring of truth in it, then its evidentiary value becomes more stronger carrying high probative value and deserves to be acted upon. The instant extra judicial confession came through 6 witnesses having no reason to falsely implicate the accused and furthermore it was corroborated by circumstantial evidence indicated above. Hence extrajudicial confession of accused Azim Ali was of voluntary character and came through non-interested witnesses corroborated by circumstantial evidence and the same had been proved, hence, extrajudicial confession formulates the basis for conviction.
(Relied principles laid down in Piara Singh v. State of Punjab AIR 1977 SC 2274 : (1977 Cri LJ 1941).
11. Accused Jarina Khatun made confession before the Magistrate on 30-8-1984. P.W. 3 Judicial Magistrate Shri B.C. Medhi recorded the confession. She was produced before the Magistrate on 29-7-1984 and after preliminary caution she was remanded to judicial custody for reflection. She was again produced before the Magistrate on 30-7-1984 and the Magistrate again cautioned her as per items of para 5 of the confessional Statement Form (Ext. 4) and further gave reasonable time for reflection. Thereafter, the Magistrate by putting questions and recording her answers under para 6 of the Confessional Statement Form after duly ascertaining if she was ready to make confession voluntarily. From her demeanour and answers the Magistrate was satisfied that she was ready to make confession voluntarily and thereupon the Magistrate recorded her confessional statement. In the confessional statement she stated that “Azim Ali was nephew of her husband Nasimuddin; Azim Ali resides in their house and grown love affairs with her for 6-7 months and both made plan to marry after killing Nasimuddin; that night while Nasimuddin was in sleep, herself with Azim Ali planned in the evening to kill Nasimuddin at night, and accordingly at about 1 a.m. (night) she took the knife, and stabbed Nasimuddin following the blows given by Azim Ali with dagger; thereafter both of them buried the dead body of Nasimuddin inside the house and washed/removed the blood stained from inside the room, washed out the dagger to remove blood stains.”
12. Accused Jarina Khatun was arrested on 28-7-1984 as found from the evidence of the Investigating Officer. She was produced before the Magistrate on 29-7-1984 within 24 hours. There was no delay/violation of any provision. She was taken to the thana on 27th for interrogation and arrested on 28th. On careful scrutiny of all the entries in the Confessional Statement Form, we find that the formalities required Under Section 164, Cr. P.C. had been fully complied with by the Magistrate in recording the confession. The confession had been fully corroborated by circumstantial and medical evidence. The incised wounds and penetrating wounds found on the body of the deceased corroborated her confession that those injuries were caused by sharp cutting pointed weapons. The fact of discovery of dead body inside the house is another corroboration to her confessional statement. On careful scrutiny, it is found that her confession was voluntary and had been corroborated by circumstantial evidence. She and Azim Ali had motive to kill Nasimuddin in order that both can enjoy sex life without obstruction as Azim promised her to marry in absence of Nasimuddin. A confession perfectly voluntary and true can form legal basis for conviction even without corroboration. But in the present case corroboration indicated above were present. It was a legal basis for conviction of Accused Jarina Khatun.
(Relied Shankaria v. State of Rajasthan reported in AIR 1978 SC 1248 : (1978) Cri LJ 251; Sarwan Singh Rattan Singh v. State of Punjab reported in AIR 1957 SC 637 : (1957 Cri LJ 1014).
13. Nasimuddin was a Police Officer and served outside. He occasionally visited house and therefore, Azim Ali was kept in the house as a male member to look after his family members. The story that Azim Ali and Jarina Khatun had grown love affairs in the absence of Nasimuddin had basis and for that reason to eliminate Nasimuddin both Jarina Khatun and Azim Ali Killed him. This story had been stated in her confession. The confession besides being valuntary was also true, had corroborations and conviction on such confession could be safely relied upon.
14. That night deceased Nasimuddin was sleeping in the same house with wife accused Jarina. Azim was sleeping in the adjoining house of Nasimuddin. Both had the opportunity of committing the crime planned by them. The dead body was found inside the house from the buried place in the floor of the house. Both confessed. All these circumstantial evidence coupled with confessions and evidence of Noor Alam have established that none else than two accused committed the crime.
15. That confession of Jarina Khatun had also inculpated Azim Ali as one of the principal assailants. The confession had been proved against Jarina Khatun and relied as basis for conviction. Extrajudicial confession of Azim Ali with substantive corroboration was also found sufficient to base conviction. Therefore, the judicial confession of Jarina Khatun is aptly applicable as against Azim Ali under the provision of Section 30 of the Evidence Act as both of them have been jointly tried for the same crime.
16. The trial court was justified to convict both of them for causing death of Nasimuddin. Azim Ali was aged 15 years at the time of occurrence. He was a student of Class X. Jarina Khatun was a young lady aged about 24 years having 3 minor children who are still dependant on her. Both of them grew love affairs being young in age, living together and in absence of Nasimuddin to give company of cohabitation she used Azim Ali to satisfy sex. They are in jail for 7 years since conviction. There is none to look after her children. Considering these factors converting the conviction Under Section 304 Part-I of the IPC for causing death intentionally would meet the ends of justice in the case. The conviction would accordingly be altered with modification in the sentences.
17. This appeal is dismissed. The conviction Under Section 302, IPC is altered to that of Section 304, Part-I of the IPC and sentence of both appellants Azim Ali and Jarina Khatun is reduced to R.I. for 10 years with benefit of set off of the period already undergone exclusive of the period undergone during investigation of the case, if any.
Send down the records.