Dwijen Kalita vs State of Assam

P.G. Agarwal, J.—This criminal appeal is directed against the judgment and order dated 20.9.96 passed by the learned Sessions Judge. Darrang at Mangaldoi in Sessions Case No. 64 (DM)92. thereby convicting and sentencing the accused-Appellant Dwijen Kalita u/s 302 IPC awarding the sentence of life imprisonment with a fine of Rs. 1,000/-, in default further imprisonment for one month.

The facts, in brief are that - on 12.7.88 at about 10.30 a.m. Shri Ranjit Kalita lodged a written FIR before the Officer-in-Charge, Kalaigaon Police Station to the effect that on that day at about 7.30 a.m. while his brother Deepak Kalita was proceeding to Tangla and reached the house of the accused persons, his younger brother Dwijen Kalita, two sisters, namely, Smt. Labanya Kalita, and Smt Kunja Kalita along with one Rajat Ch. Kalita attacked Deepak with sharp edged weapons and caused grievous injuries on the head, neck, hands and legs, Deepak Kalita died instantaneously at the spot. Police registered a case and on, completion of investigation submitted charge-sheets against four accused-persons. The case was committed to the Court of Sessions and the learned Sessions Judge, Darning framed changes against the four accused-persons under Sections 302/34 IPC. During trial, the prosecution examed as many as, seven witnesses. The statement of the accused-persons were recorded and an conclusion the learned Trial Judge acquitted three out of the four accused-persons and convicted and sentenced only the present Appellant as (sic) said.

We have heard Mr. J.M. Choudhury learned Counsel for the Appellant assisted by Mr. B.M. Choudhury and Mr. S.K. Noor Mohammad learned Public Prosecutor for the State.

In this appeal the factum of killing of Deepak Kalita on the date of occurrence is not disputed. The point for determination is whether the present Appellant is involved at all in the above killing.

In this case, although the occurrence took place at 7.30 a.m. in a residential locality, there is no eye witness. The informant of the case Ranjit Kalita arrived at the place of occurrence only on being reported by one Dhani Ram Sarma, P.W. - 2 Gouri Kanta Das is the scribe of the FIR, Ext. 1. Golak Chandra Sarma, P.W. - 3 and Baihagu, P.W. - 4 did not support the prosecution and they were declared hostile. P.W. - 5 is Smt. Bharuki Deka who claims that the Appellant made an extra-judicial confession before her, which shall be considered later on. P.W. - 6 is the investigating Police Officer, Kumud Deka and P.W. - 7 is Dr. K.C. Das, has who has proved the post-mortem report prepared by Dr. J.N. Talukdar, who did the autopsy.

As staled above, the learned trial Judge acquitted the three accused-persons and convicted the present Appellant only. The relevant observations of the learned Sessions Judge are in the following words:

It is seen from the evidence on record that there is no satisfactory and corroborative evidence against the accused persons, namely, Smt. Labanya Kalita. Rajat Saikia and Kunja Bala, However, the conduct of accused Dwijen Kalita shows that he has committed the alleged murder and the circumstantial evidence against accused Dwijen Kalita is admissible u/s 8 of the Indian Evidence Act,

While going through the evidence on record, we find that the alleged circumstantial evidence, mention of which has been made as above, was against all the four accused-persons, The learned Public Prosecutor has submitted that the prosecution relies on the extrajudicial confession only. In this case, according to P.W. - 1 he met all the four accused-persons soon after arrival at the place of occurrence and all of them made the following statement before him.

We have cut Deepak. Now we will cut you". Hence, out of fear he fled away. The above statement is vague and ambiguous in the sense that P.W. - 1 has not mentioned as to what was the exact words used by each of the accused-persons. In the case of Heramba Brahma and Another Vs. State of Assam, the facts of which, on the point of extra-judicial confession, are more or less identical to the present case, the Apex Court observed as under:

This extra judicial confession is vague and ambiguous because it is not clear whether each one spoke separately and what were the words used by each of the accused. Witness speaks of an extra-judicial confession by three accused persons having simultaneously made and when reproduced in his language, it makes no sense. It is dangerous to rely upon such extra-judicial confession even if the witness''s credentials are not in question. The question; that agitates our mind is what language was used by each accused, in what words confession was made and whether each used the same language? Evidence of the witness does not reproduce the words used by each accused.: It is the witness''s ipse dixit that is being deposed to.

Admittedly the learned trial Judge did not accept the above extra-judicial confession allegedly made before P.W. - 1 in respect of the three accused-persons who are acquitted by him. On the evidence of P.W. - 1 there is nothing to single out the present Appellant on the basis of the statement made as above. We therefore, hold that this alleged extrajudicial confession before P.W. - 1 was nor accepted by the trial Court and we also do not find any basis to accept the same against the present-Appellant.

In this case there is another alleged extra-judicial confession made by the present-Appellant before P.W. - 5, Smt. Bhatuki Deka, an old lady, aged about 52 years. She stated that one morning while she was proceeding towards the field she met the Appellant Dwijen, who stated as follows:

I have finished off one person. I have finished off our Maju Deka Hearing this she left away.

The law oil the point of extra-judicial confession is well settled. In cases where prosecution presses for conviction on the basis of extra-judicial confession they will have to prove the dale, time and place of the alleged statement and the facts and circumstances under which the alleged statement was made, In the present case the witness P.W. - 5 has not given the date and place of the alleged statement, i.e. when and where the accused made such a statement It may be on the date of occurrence or after six months of the occurrence. The Court cannot presume a date. There was nothing to show as to who is the lady Bhatuki Deka. Is she related to the accused or the deceased? or as to why the Appellant will make a statement before her. After giving our considered thought, we find that her statement does not inspire any confidence and it cannot he regarded as extra judicial confession. Learned Counsel for the Appellant has further drawn our attention to the fact that while recording the statement of the accused u/s 313 Code of Criminal Procedure., this alleged extra-judicial concession allegedly made by the Appellant before P.W. - 5 was not put to the accused-Appellant and, as such, in view of the settled principle of law such statement, evidence and material not brought to the attention of the accused u/s 313 Code of Criminal Procedure., cannot be considered against him.

During investigation the police seized two ''Daos'' from two accused-persons, namely, Labanya and Dwijen. The said seized ''daos'' were not sent for, chemical analysis and as a matter of fact this were not produced before the trial Court. Further, we find that this fact of seizure of ''daos'' was not put to the Appellant in his statement made u/s 313 Code of Criminal Procedure.

Although a mere reading of the FIR reveals that all the four accused-persons conjointly attacked the deceased and caused various injuries on his persons the learned trial Judge also framed charges under Sections 302/34 IPC, the Doctor also found, as many as, three numbers of incised wound on the person of the ceased but there is absolutely on evidence to show as to who caused the above injuries on the persons of the deceased. There is also no circumstantial evidence wherefrom we can infer that the accused and the accused alone has caused the above injuries. In our opinion this is a case of no evidence as the prosecution has failed to bring home the charge.

In the result, the appeal is allowed, the conviction and sentence of the accused-Appellant as awarded by the trial Court is set aside. The accused is equaled of the charge and be set at liberty forthwith. The fine as imposed, if paid, be refunded to the accused-Appellant.