JUDGMENT
R. Bhattacharyya, J.
1. This Criminal Appeal is directed against the order of conviction and sentence passed by the learned Additional Sessions Judge, 11th Court, Alipore, in case No. 1(9) 90/SC 42(5)/90 under Sections 302/34 of the I.P.C., sentencing the accused to life imprisonment in addition to payment of fine of Rs. 2,000/-, in default, R I. for one year.
2. The sensitive facts of the Appeal before us are that on 7-8-86 at 8.30 a.m., an information was laid with the P. S. Hasnabad about the death of one Md. Azir Rahaman which gave birth to a suspicion. Since the author of the crime was unknown, the police registered a case being U.D. Case No. 20 of the said P. S. on 7-8-86. The investigating was set into motion on the commencement of the U. D. Case.
3. The maker of the written complaint, the village Pradhan, was summoned by the villagers to attend the house of Khalirum Rahaman Gazi as he was informed about the unnatural death of Aziar Rahaman Gazi. He found in the locale the dead body of Aziar lying on a wooden cot surrounded by an assembly of persons who were Morsed Ali P.W. 4, Abdul Latif P.W. 2, Chittaranjan Mondal P.W. 7 and Momtaj Ali Gazi P.W. 3. AH of them assembled there and frowned their eyes over the death of Aziar Rahaman Gazi.
4. The incident took a sharp turn. According to the case of the prosecution, the elder brother of the deceased Aziar apprised all in sobbing voice of the murder of his brother of which he was the perpetrator who liquidated him with the hired assassins.
5. The paternal property according to him was a Pandora’s box which lured him to gold. Both Morsed and Md. Kashem Gazi were instrumental in annihilating his elder brother, for which, the price paid by the accused to them was Rs. 2,000/-. The accused apprised them of all the mode and manner the plan was accomplished.
6. The accused translated his evil design through the aid of Morsed and Kashem. His brother was struggling for his existence and made endeavour to ward off their onslaught. But, his attempts were nipped in the bud. Ultimately, he left for his heavenly abode for the cruel and evil design of the accused appellant and the responsibility of his death was borne by him.
7. The appellant burst into tears as it was a savage out burst of greed for acquisition of property.
8. There was a combing operation of the co-villagers for both Morsed and Kashem Gazi, but it was abated by the wise Counsel of the maker of the written complaint.
9. As usual the police came and the villagers made over the accused to the police. Thereafter, a specific case was started being P. S. Case No. 3 dated 7-8-86.
10. On completion of investigation, charge-sheet was submitted against all the accused under Section 302/34 of the I.P.C., the contents of which were read over and explained to each of the accused who pleaded not guilty to the charges and claimed to be tried. The other two accused persons passed away during the currency of the trial.
11. The learned trial court passed the order of conviction and sentence on the basis of extra judicial confession which has been challenged in the appeal.
12. During the currency of the trial the prosecution examined 15 witnesses and after consideration of the defence case the court found the accused guilty and recorded the order of conviction and sentence in the manner set forth above.
13. The question that arose for consideration was whether extra judicial confession is truthful and voluntary to fix the accused with the crime.
14. Mr. Dutta appearing for the appellant has seriously questioned the propriety and legality of the extra judicial confession which, according to him, is besmeared with threat, coercion, pressure and assault that consequently gave an awesome result.
15. To bring home the point he has taken us through the evidence. The extra judicial confession is bereft of legalities and no conviction could follow. There being no clinching evidence, the conviction is wholly unwarranted by law. The learned Public Prosecutor has disputed the correctness of the argument, The extra judicial confession holds water for being corroborated by the oral testimonies of the disinterested witnesses.
16. Now let us take the bull by the horn and see, as to whether which part of the argument advanced by each side crowns success.
17. To embark on an enquiry, we are not unmindful for the well established long line of judicial decisions that a retracted extra judical confession may form the basis of a conviction but to gather assurance of confession, the court must look for corroboration from independent material. The Court should not be oblivious while considering the veracity or otherwise of the extra judicial confession that it was free from influence. It must satisfy the requirements of Sections 24, 25 and 26 of the Evidence Act, 1872.
18. The main stay of the prosecution case is the evidence of P.W.3 Md. Mustaque Ali Gazi, P.W. 6A. Ali Gazi, P.W. 7 Chitta Ranjan Mondal and P.W. 10 Khalil Islam Gazi.
19. P.W. 3 deposed that in presence of police, villagers and the then village Pradhan, the accused made a confession who paid Rs. 2000/- to liquidate his brother.
20. P.W. 6 had spoken to in his evidence about such confession being made by the accused, but he has not disclosed about the presence of the Police there at the material time.
21. P.W. 7 also deposed in favour of extra judicial confession which is almost in line with the evidence of P.W. 6.
22. P.W. 10 introduced in his evidence the extra judicial confession which was preceded by assault and pressure, although the absence of the Police is conspicuous.
23. When we plough their evidence, it is manifest that there is no consistency in their evidence about the spontaneity of the extra judicial confession. The presence of police, pressure and assault when remain uncontroverted leading to extra judicial confession, there is no room for doubt that the extra judificial confession is not voluntary.
24. There is another major hole in the case of the prosecution which could not be plugged.
25. P. W. 4 Md. Morsed let the cat out of the bag when he deposed, ‘I saw police assaulting the accused Kausair Ali severely and seeing that I went way’. It evinces the confession involuntary. More so, it stands out that such assault was made anterior to extra judicial confession.
26. In the background of the above, a compelling presumption arises that had the accused made extra judicial confession earlier to assault, there could be no ground for subjecting him to assault by the Police. It affords an irresistible conclusion that extra judicial confession was stricken with pressure followed by assault.
27. Further, to test the veracity of the witnesses to whom the confession was made, the actual words in the body of the confession varied from witness to witness who gave an inconsistent account of the same.
28. To drive home the point, the evidence of P.W. 17 Sukumar Das does not assure the accuracy of the extra judicial confession. The sketch map, Ext. 12, does not prove the confession true.
29. In the background of the description of the commission of offence, the Ext. 12 does not indicate or specify that the place where the offence stated to have been committed was disturbed. Therefore, even from the documentary evidence, the extra judicial confession gathers no strength. It is crystal clear for the materials disclosed that the accused was in custody of the police, since his movement was restricted, during when such confession was obtained through P.W. 1 Durgapada Ghosh, the Pradhan who attempted to accommodate the accused in the trial. Such confession cannot be used against him to fix him with the crime as Sections 25 & 26 of the E. V. Act stand as a bar. Thus, the submission of Mr. Dutta has no cutting edge as submitted by the learned Public Prosecutor is not correct.
30. We have indicated a good number of suspicious circumstances in the evidence as there is no bridge between the one witness and the other. It becomes highly doubtful that the accused on his own made a confession which does not gather support from the overwhelming evidence on record. This is a retracted extra judicial confession which has been taken to be the pole star on which the learned Sessions Judge has relied on and based the conviction. We are not at all satisfied with the evidence of the P.Ws. as one knocks out the other. The evidence of the witnesses when becomes unreliable as to the voluntary nature of the extra judicial confession, there could be no other circumstance to connect the accused with the crime.
31. In the result, the appellant is given benefit of doubt and the conviction and sentence awarded against him is set aside.
32. The appeal is, accordingly, allowed.
33. The accused-convict may be forthwith set at liberty unless wanted in connection with any other case.
34. The Almaths may be disposed of in accordance with the provision of law.
35. Nure Alam Chowdhury, J.
35. I agree.