Gauhati High Court
Habibur Rahman vs The State Of Assam on 5 August, 2023
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GAHC010166712019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/94/2019
HABIBUR RAHMAN
NAGAON
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM.
------------
Advocate for : MR. N BARUA
Advocate for : MS. BHUYAN(ADDL.PP
ASSAM) appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE LANUSUNGKUM JAMIR
HONOURABLE MR. JUSTICE KARDAK ETE
JUDGMENT & ORDER (CAV)
Date : 05-08-2023
(Kardak Ete, J)
Heard Mr. N. Barua, learned Amicus Curiae. Also heard Ms. B.
Bhuyan, learned Additional Public Prosecutor for the State of Assam.
2. This appeal from Jail has been preferred by Md. Habibur assailing
the judgment and order dated 13.05.2019 passed by the Court of Sessions
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Judge, Nagaon in Sessions case no. 387(N) of 2012 whereby the appellant
namely Habibur Rahman alongwith 5 (five) others accused namely: Md.
Abdul Hekim, Md. Abdul Rahim, Md. Azizul Hoque @Aijul Hoque, Miya
Hussain and Sahed Ali have been convicted under Section 302/201/34 IPC,
1860 for committing the murder of Azibur Rahman and sentenced to
undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/-
each and in default, rigorous imprisonment for another six months. The
accused persons have also been sentenced to undergo rigorous
imprisonment for three years and also to pay fine of Rs 1000/- each, in
default, rigorous imprisonment for another one month under section 201/34
IPC, 1860.
3. The case of the prosecution, in brief, is that on 14.04.2008, the
informant Mustt Rumena Khatoon lodged an FIR before the Dhing P.S
alleging that there arose some dispute and the deceased, Azibur Rahman
was in bad terms with the accused persons namely Md. Fakaruddin, Md.
Abdul Hekim, Md. Abdul Karim, Md. Abdul Rahim, Md. Habibur Rahman,
Md. Azizul Hoque @Aijul Hoque, Miya Hussain and Sahed Ali with regard to
certain issues for some time. After such dispute, the accused persons have
been looking for an opportunity to cause harm to him. It is further alleged
that on 13.04.2008, at around 7:00 pm, the above accused persons came
to their house in group and called her husband namely, Azibur Rahman on
the pretext of discussing certain important matters. Then when her
husband took out his bicycle, she held a lamp to show him the road to
outside and she saw the accused persons in the gleam of the lamp, but for
the whole night her husband did not come back. As such, in the morning,
she intimated the matter to other people and the people caught and
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interrogated Md. Habibur and Azizul Hoque who in turn admitted that they
had killed her husband and buried him. Thereafter, the accused persons Md.
Habibur and Azizul Hoque were handed over to the Police.
4. On receipt of FIR, the case was registered being Dhing P.S. Case no
61/2008 under section 302/201/34 IPC, 1860. After completion of the
investigation, the Investigating Officer has filed a charge-sheet on
31.01.2010 against the accused persons namely Md. Fakaruddin, Md. Abdul
Hekim, Md. Abdul Karim, Md. Abdul Rahim, Md. Habibur Rahman, Md.
Azizul Hoque, Miya Hussain and Sahed Ali while the accused persons Md.
Fakaruddin and Sahed Ali were shown as absconder. The Judicial Magistrate
First Class, Nagaon committed the case to the Court of Sessions, Nagaon on
16.10.2012.
5. The accused Sahed Ali subsequently appeared during the trial while
the accused Md. Fakaruddin remained absconder. Based on the charge-
sheet, charges were framed against the accused persons Md. Abdul Hekim,
Md. Abdul Karim, Md. Abdul Rahim, Md. Habibur Rahman, Md. Azizul
Hoque, Miya Hussain and Sahed Ali and the same was read over and
explained to the accused persons, to which they pleaded not guilty and
claimed to be tried. The matter went up for trial. It is noted that during the
proceedings of the trial, the accused Abdul Karim expired, as such, the case
against him got abetted recorded vied order dated 08.07.2015.
6. During the course of trial, the prosecution has examined in all 9
(nine) witnesses. The statements of the accused persons under section 313
Cr.PC were also recorded. The defence plea is total denial, no evidence has
been adduced by the accused persons. Upon consideration of the evidence
adduced on records, the learned Trial Court concluded that considering the
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facts and circumstances of the case and the evidences and materials
available on record, the accused persons in furtherance to common
intention have caused the death of Azibur Rahman and buried his dead
body to cause disappearance of the evidence and the prosecution had
succeeded to bring home charges against the accused persons mentioned
above, beyond reasonable doubt and accordingly convicted them under
section 302/201/34 IPC, 1860 and sentenced them as mentioned herein
above.
7. Mr. N. Baruah, learned Amicus Curiae while referring to the
deposition of the PW(s) submits that PW-1 who is the Village Headman had
stated that some villagers had caught hold and cordoned the accused
persons, Habibur and Azizul. The accused Habibur Rahman was never
declared an absconder, and may not have been in the dock when the PW-1
and PW-2 were being initially examined by the Court. This may be true, but
then, it was the responsibility of the prosecution to ensure clear
identification of accused Habibur Rahman by PW-2, as she was the only
person stated to have identified him as taking her husband away, on
13.04.2008 evening, under stressful circumstances and dim artificial light of
a lamp.
8. The PW-1 denied the suggestion that accused persons made any
confession regarding their guilt, while being detained there by the public.
Thus one witness already categorically denies that there was any extra-
judicial confession elicited. PW-1 admitted that there was a public fight or
tussle between the police and some persons/villagers on the scene,
whereupon cases were lodged against these persons, who were later
acquitted or let off. PW-1 was one of them. Therefore, he cannot be stated
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to be an uninterested witness, or immune from pressure brought upon by
the prosecution to prove their case. PW-1 also admits that whatever he has
stated in court he has learnt of the said facts from the PW-2, which makes
his testimony, in the nature of hearsay, at the very least. He reiterates the
above, in response to suggestion being put to him on contrary. PW-1 also
omits any reference to seeing the seized articles i.e., muffler, sandals and
bicycle of the victim scattered near the place where the victim was
presumably murdered and his body buried, a significant omission in view of
the fact that most of the witnesses lay great emphasis on the discovery and
recovery of the said items as a link in the chain of evidence. In fact, PW-1
states that he was shown the seized articles before obtaining signature on
the seizure list, by the O/C of the Dhing P.S. PW-1 also reiterates, even on
suggestion being repeatedly made to him to the contrary, that the incident
took place on 01.01.2008. Even accounting for lapse of five years between
date of incident and date of deposition in trial, the massive discrepancies in
dates is a material discrepancy, and makes the PW-1 an unreliable witness
at the very least. PW-1 also calls the accused as his co-villagers, which is
surprising as at that point of time, the accused Habibur Rahman was a
resident of the village- Roumari, as seen from the Ejahar, the depositions of
the PW-5 and PW-6 as well as the Section 313 Cr.PC deposition of the
accused. The Village Headman would have been expected to know his
villagers, from those belonging to another village at the very least.
9. Mr. N. Baruah, learned Amicus Curiae, while referring to the
deposition of PW-2 who is the wife of the victim submits that PW-2 had
stated that the accused Hobi was not seen in the court. Therefore, while
referring to the accused having taken her husband away on 13.04.2008, it
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cannot be readily inferred therefrom that the present accused Habibur
Rahman and the absconding accused Hobi are the one and the same
person seen by the PW-2 on the evening of the incident on 13.04.2008.
Even accounting for prosecution's explanation at the appellate stage of
accused not being traceable for three years, the fact remains that it was
the duty of the Trial Court to conduct a Test Identification Parade of
accused Habibur Rahman by the PW-2, when he was finally brought to the
dock/custody again in 2016, or at the very least, to pose a question to the
PW-2 on re-examination, to effect as to whether the accused Hobi and
accused Habibur Rahman were the one and same person. This could have
been done when PW-2 was further cross-examined on 11.07.2016 by
counsel for accused Habibur, and the omission to do the same amount to a
procedural lacunae or gap which vitiates the order of conviction. The PW-2
resiles from her statement in Ejahar that there was previous quarrel with
accused persons. As such, motive remains un-established. It is not even
established as to who wrote the Ejahar, and where was it written. PW-2
states first that she wrote the Ejahar, then states that the police wrote,
then again that someone in Dhing Bazar wrote it and thereafter, that she
does not know who wrote it. The fact is material as the charge sheet clearly
mentions that investigation was done on basis of the Ejahar, while the
Ejahar is dated 13.04.2008 at 2:00 pm. The GD Entry in the paperbook,
mentions that information was received as to the murder, burial of dead
body and apprehension of two accused persons at 7:55 AM on 14.04.2008
itself. In effect, the Ejahar has lost all credibility as a reliable, first hand
record of events, while the GD Entry is based on hearsay information given
by the PW-5 who has admittedly heard all facts from the PW-2 herself.
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10. The PW-2's version of events is that the named accused persons
came to their house on 13.04.2008 at 7 or 8 PM in evening and took her
husband away to discuss earth filling work related issues. This version is
flatly contradicted by the section 161 statements offered by detained
accused persons Habibur and Azizul, wherein it is said that these two went
to the victim's house and took him away on a pretext, and the other
accused later ambushed and killed the victim near the embankment. The
prosecution has exhibited these section 161 statements and relies on the
same to corroborate the aspect of extra-judicial confession by the two
accused. However, these cannot be relied upon if the prosecution is to
simultaneously rely upon the version of the PW2 as well, as both are
contradictory in outlining the sequence of events and participants/accused
therein.
11. The PW-2 also avers that the accused were her co-villagers, while it
is an admitted fact that the accused Habibur Rahman was of village
Roumari, and not the village No. 2 Kandulimari where the victim and PW2
hailed from. Further, she states that the accused persons were all her
cousins and lived adjacent to her house, whereas the fact is that village
Roumari was on the North and East side from the embankment which was
in turn another kilometre away from the house of the victim. Thus the PW-
2's statement are also contradictory, materially inaccurate and false on the
fact of the record. The PW-2 categorically identifies all the named accused
persons from the light emitted by the lamp at 7/8 PM, which was the time
allegedly when the accused persons took her husband away (without there
being any corresponding allegation of tussle, dispute, anger or violence
used or threatened at the time against victim) peacefully. The dim light of
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the lamp, and alleged involvement of the 8 accused persons on the scene,
made it imperative for a test identification parade to have conducted in
respect of all accused persons standing trial. It was the time of natural
darkness/failing light, and artificial lighting was inadequate, and as such,
proper identification of each accused persons is submitted to be mandatory
and in its absence, identification becomes a doubtful fact. The PW-2 also
contradicts herself when she states that the factum of her husband being
missing was first reported to some co-villagers during night hours itself, not
in the morning near the mosque on the next day, as alleged subsequently.
It is important because it establishes that other people may have been on
the look-out for the PW-2's husband even in the night hours. She further
states that she went to the police station, which is not an accurate
deposition, as the police learnt of the incident from the PW-5 at 7:55 AM as
per the GD Entry.
12. Mr. N. Baruah, learned Amicus Curiae, submits that PW-3 had stated
in his cross-examination that he did not know how and by whom the
deceased was killed. As such, his testimony would be construed as hearsay
evidence at best. PW-3 stated that the articles such as muffler/comforter,
slippers and bicycle were discovered lying on the river bank. These articles
were thus, recovered by the villagers prior to arrival of police at Matikhula
Bazaar, and were not shown by the accused persons. This aspect has been
dealt with by the learned Trial Court, holding that there was no discovery in
terms of section 27 of the Evidence Act, 1872. In fact, PW-3 rebuts
suggestion that the accused persons did not show the dead body, by
remaining present when it was dug out, which is contradictory to other
testimony that the accused persons dug out the dead body themselves and
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thus led to discovery of the body. The accused persons were by implication,
stated to have shown their awareness of the dead body's location, by
remaining present at the time of digging it out, which does not amount to
discovery in any circumstances. Further, there is stated to be an
interrogation done by the villagers which leads to an interference that
coercive measures were employed by a vast number of people on two
accused, leading them to confess on fear of mortal harm.
13. Mr. N. Baruah, learned Amicus Curiae, submits that PW-4 who is
also a witness to the alleged extra-judicial confession, made before
hundreds of people, and again by the police apparently, in front of the
same hundreds of people. However, his primary source of information about
the murder, is one Jahangir and he avers that he arrived at the place of
detention (the VDP Secretary's Pharmacy) of accused persons only later.
However, PW-4 also avers that no confession as to statement by the
accused persons that they would lead the police to the Place of Occurrence,
was ever recorded by the police. PW-4 was also an accused in case lodged
by police against persons creating affray and fight in bazaar. Again, it is
submitted that he is not an uninterested witness, rather a witness whose
testimony could have been influenced by the police to make out a clear-cut
case for the prosecution. It is surprising that all those persons involved in
the case of assault against police personnel, have been acquitted, even
though the offence is quite a serious one. PW-4 also confirms that other
villagers had seen the seized articles before the accused persons had
shown the articles to the police. In fact, it is stated that the police visited
the scene of recovery at the request of the villagers, who had seen the
articles.
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14. Mr. N. Baruah, learned Amicus Curiae, submits that PW-5 had stated
that taking the accused persons along, the police went to the place where
Azibur Rahman was buried. PW-5 had denied the suggestion that he did not
tell the police that the victim's body was recovered at a jute field situated
on the other side of the dead channel of the river. This clouds the very fact
as to who all knew before hand as to the situs of the dead body. Thus,
there could not have been a categorical finding on facts by the Trial Court,
that only the accused persons would have known the location of the dead
body as it appears that most of the villagers knew in the morning itself,
about the seized articles, the factum of burial, the location of dead body at
least half a kilometre from the embankment, on the dry shore of the river
bed. This may have been from the confession extracted by the villagers,
but the same could not be relied upon in view of the clear signs of
intimidation, extra-custodial interrogation, cordoning of detention area by
hundreds of villagers, high tension and tempers flaring leading to an assault
on the police as well and varying versions of what the police was told, by
whom and at what time prior to investigation or thereafter.
15. The PW-5 also stated that the villagers had informed the police
about the seized articles and even the blood lying on the river bank, a short
distance from the dead body recovered from the opposite side of the dead
channel of the river, which was also informed to the police. This, read with
the GD Entry at 7:55 AM, clearly shows that the body had been
detected/discovered by some villagers at that early hour in the morning
itself, and the police was intimated of this fact. The delay in recovery of the
body had caused the furore in the market and led to a fight between
villagers and police. Further police registered cases against him as well as
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he appears to have been acquitted therein as well. Thus, the PW-5
appeared to be another witness susceptible to police pressure at that
relevant point of time. The PW-5 also stated that no written confession was
obtained by the police, nor any written statement of accused/or witness
obtained regarding the recovery of the dead body. The PW-5 clearly
deposed that the villagers went in search of the two accused persons, and
brought them to the Pharmacy for questioning. There is no indication of a
confession made by them, prior to their interrogation at the pharmacy. The
PW-5 also avers that the two accused persons called the victim from his
home (as informed to him by PW-2) to collect their wages and the victim
did not return thereafter. The other accused persons are not even
mentioned at all. This is submitted as being a material deviation from the
testimony of the star prosecution witness, the PW-2. In such situation, the
testimony of the PW-2 is further eroded in credibility.
16. Mr. N. Baruah, learned Amicus Curiae, while referring to the
deposition of PW-6 who is a shop owner at the Matikhula Bazar, submits
that PW-6 had stated the two accused called the victim away (again, as per
the information supplied by the PW-2) and other accused persons are not
even mentioned. This again contradicts the version of the PW-2. Further, it
is deposed that while the villagers were passing on the way to Roumari
Village, they saw the seized articles and blood there. The accused persons
came there and were intercepted and brought to the Pharmacy, where they
were questioned/ interrogated and then they confessed. Thus, the extra-
judicial confession is directly tied to the preceding interrogation by a
substantial part of the public in the PW-5's pharmacy. PW-6 who was
admittedly there all throughout from the morning till the recovery of the
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body, admits that he cannot vouchsafe as to whether police recorded the
statement of accused persons after their confession, and before recover of
the body. In fact, even the bicycle (part of the seized articles) has been
stated to have been left at the place of discovery by the police. PW-6 again
is a person separately charged by the police with assault at that point in
time, and acquitted subsequently, and hence cast as a witness, whose
situation could not be termed as independent or in-influenced. PW-6 also
stated that the accused persons, Habibur Rahman and Azizul Hoque were
from Roumari village.
17. Mr. N. Baruah, learned Amicus Curiae submits that PW-7 had stated
that PW-2 told him that the two accused persons, Habibur and Azizul had
taken her husband the previous night towards the embankment, which is a
new fact not narrated by any other witness, and seeks to improve upon or
tie-up any loose ends in the prosecution story. PW-7 also stated that the
interrogation of the accused persons took place inside a room in front of
50/60 people, while thousands awaited outside. Thus, the element of public
trial and Kangaroo Court were very much present, which rendered any
confession predictable, forced and vitiated in the eyes of law, more so when
such confession was not recorded in writing before any Magistrate, not
even when the Magistrate came for exhumation of the body, at which time
the accused persons were purportedly on the spot digging up the dead
body. PW-7 also clearly stated that police had not recorded the statement
of witnesses present in the room, when the accused persons purportedly
confessed their role in the murder and that they would show the place of
burial. PW-7 is also a person charged by the police. The details of the
assault are even more stark and it is seen that police were injured. Even
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then, the PW-7 was acquitted with other offenders, which renders their
evidence vulnerable to influence. This is more so when the evidence is
merely used to corroborate the testimony of PW-2, whose credibility is
again suspect when the prosecution witnesses testimony is read as a
whole.
18. Mr. N. Baruah, learned Amicus Curiae while referring to the
deposition of PW-8 who is the Doctor conducted the post mortem, submits
that the doctor who recorded the post mortem findings described absence
of Rigor Mortis which is not unusual, after 24-48 hours of death, what is
unusual is the absence of any remark anywhere as to unnatural positioning
of the dead body, even in the Inquest Report dated 14.04.2008 at 2-3 PM.
This is significant, due to the concept known as rigor mortis in an unusual
position. The facts are clear that the victim was stabbed near the
embankment (as evident from the blood stains on the west side of the
embankment, in the paddy field) and the body was buried in a
Char/Chapori area with jute seeds sown (which is one km or 1/2 mile away
from the paddy field, across the embankment and the dry river bed
channel). This implies that after the death, the body was displaced at a
significant distance, across obstacles and buried in the ground one km
away. Further, the forensic use of 'rigor mortis in an unusual position' is
in furthering the investigations, and the scientific confirmation of two facts-
the scene of death (occurrence) is different from the scene of disposal of
dead body and time gap between the two places.
19. The facts support that the dead body was moved after death, for a
long distance which scientifically, would necessitate development of rigor
mortis in an unusual position, and this development ought to have been
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noted at the time of Inquest. Absence thereof, would possibly indicate that
either the body had not been moved after death or that it had been moved
after subsides of rigor mortis. If the section 161 statements of the accused
persons Habibur and Azizul Hoque is to be believed, then the body was
moved after the murder, to the land of one Fakaruddin's brother and buried,
which would have led to rigor mortis in an unusual position.
20. Mr. N. Baruah, learned Amicus Curiae, referring to the deposition of
PW-9 who is the SI and first I/O of the case, submits that PW-5 had
admitted that the factum of burial of the dead body was intimated to the
police by PW-5. The PW-9 also exhibited and proved that section 161 Cr.PC
statements of the accused persons, particularly the fact of discovery. But
when the fact is that the police were told of the burial of the dead body and
the place of burial being near the place of recovery of the seized articles. In
fact, the testimony of most of the PWs reveals that the accused persons
went along with the police, rather than leading them to the spot. The PW-9
stated that he tried to find the other accused persons, but could not do so.
After arresting the accused persons Habibur and Azizul, he was transferred.
Thereafter, another police officer Golap Chandra Gogoi took over
investigation and in fact, submitted the chargesheet. However, the second
I/O was never examined and thus the investigation remained confined to
the statements taken from various witnesses, which were never reduced in
writing also. This is a serious irregularity in trial as it is no one's case that
PW-9 completed the investigation.
21. Mr. N. Baruah, learned Amicus Curiae has placed reliance on the
judgments of the Hon'ble Supreme Court in the following cases:
(i) Nagendra Sah V State of Bihar reported in (2021) 10 SCC 725
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(ii) Pannayar V. State of Tamil Nadu reported in (2009) 9 SCC 152.
(iii) Amitava Banerjee V. State of West Bengal reported in (2011) 12
SCC 554
(iv) Anter Singh V. State of Rajasthan reported in (2004) 10 SCC
657.
(v) Nikhil Chandra Mondal V. State of West Bengal- Criminal Appeal
No. 2269 of 2010-2023 reported in LiveLaw (SC) 171.
(vi) State of Rajasthan vs. Raja Ram reported in (2003) 8 SCC 180.
22. In the case of Nagendra Sah v State of Bihar (supra) the
Hon'ble Supreme Court reiterated 5 Golden Principles- Panchasheel- of
circumstantial evidence and held amongst other that facts should be
consistent only with guilt of accused and the chain of circumstances must
be so complete as to leave any reasonable ground for innocence of
accused.
23. In the case of Pannayar V State of Tamil Nadu (supra) the
Hon'ble Supreme Court held that absence of motive in a case depending on
circumstantial evidence is a factor that weighs in favour of the accused.
24. In the case of Amitava Banerjee V State of West Bengal
(Supra) the Hon'ble Supreme court has observed that motive for the
commission of an offence assumes greater importance in cases resting on
circumstantial evidence than those in which direct evidence regarding
commission of the offence is available.
25. In the case of Anter Singh V State of Rajasthan (supra), the
Hon'ble Supreme Court held that the requirements of Section 27 of the
Evidence Act, 1872 were succinctly summed up as under:-
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(1) The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the provision has
nothing to do with the question of relevancy. The relevancy of the fact
discovered must be established according to the prescriptions relating
to relevancy of other evidence connecting it with the crime in order to
make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some
information received from the accused and not by the own act of the
accused.
(4) The person giving the information must not be accused of any
offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information
received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates
distinctly or strictly to the facts discovered can be proved.
26. In the case of Nikhil Chandra Mondal V State of West Bengal
(supra) the Hon'ble Supreme Court held that the credibility of an extra-
judicial confession decreases when the surrounding circumstances are
doubtful. The Courts would generally look for an independent reliable
corroboration before placing any reliance upon an extra-judicial confession.
27. In the case of State of Rajasthan vs. Raja Ram (supra) the
Hon'ble Supreme Court held that it follows that a confession would be
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voluntary if it is made by the accused in a fit state of mind, and if it is not
caused by any inducement, threat or promise which has reference to the
charge against him, proceeding from a person in authority. It would not be
involuntary, if the inducement ,(a) does not have reference to the charge
against the accused person, or (b) it does not proceed from a person in
authority; or (c) it is not sufficient, in the opinion of the Court to give the
accused person grounds which would appear to him reasonable for
supposing that, by making it, he would gain any advantage or avoid any
evil of a temporal nature in reference to the proceedings against him......
One important question, in regard to which the Court has to be satisfied
with is whether when the accused made confession, he was a free man or
his movements were controlled by the police either by themselves or
through some other agency employed by them for the purpose of securing
such a confession. The question whether a confession is voluntary or not is
always a question of fact. All the factors and all the circumstances of the
case, including the important factors of the time given for reflection, scope
of the accused getting a feeling of threat, inducement or promise, must be
considered before deciding whether the Court is satisfied that its opinion
the impression caused by the inducement, threat or promise, if any, has
been fully removed. ...It would depend on the nature of the circumstances,
the time when the confession was made and the credibility of the witnesses
who speak to such a confession. Such a confession can be relied upon and
conviction can be founded thereon if the evidence about the confession
comes from the mouth of witnesses who appear to be unbiased, not even
remotely inimical to the accused, and in respect of whom nothing is
brought out which may tend to indicate that he may have a motive of
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attributing an untruthful statement to the accused, the words spoken to by
the witness are clear, unambiguous and unmistakably convey that the
accused is the perpetrator of the crime and nothing is omitted by the
witness which may militate against it. After subjecting the evidence of the
witness to a rigorous test on the touchstone of credibility, the extra-judicial
confession can be accepted and can be the basis of a conviction if it passes
the test of credibility.
28. Ms. Bhuyan, learned Additional Public Prosecutor for the State of
Assam submits that prior to lodging of the FIR one GD entry was made by
the O/C Dhing Police Station on 14.04.2008 at 7:55 AM. On the basis of
information over telephone made by the VDP Secretary No. 2 that a person
was murdered and his dead body was kept buried and in this connection
they had apprehended two boys. On the basis of the said GD entry one S.K.
Dutta S.I. Officer-in-Charge, Dhing P.S. along with S.I. Anil Bora,
constable/1131, Bhimal Hazarika and one Sec 16 APBN personnel
proceeded to Kandhulimari and started investigation of the case. During the
course of investigation PW-9, S.I. Anil Bora said that they investigated into
the matter and interrogated the apprehended accused persons and they
said that they killed Azibur Rahman and buried his dead body in the field
and they could show the place. When the police personnel were proceeding
to the field, they saw one old hero cycle, a pair of leather sandal and a
violet colour muffler lying near the embankment. The wife of the deceased
identified all these things to be of her husband and in presence of the
witnesses, the materials were seized. Thereafter, the accused persons
showed the police personnel where the dead body was buried. The
disclosure statement of the accused persons namely Habibur and Azizul
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were recorded thoroughly. The accused persons made the statement that
they led the police and showed the place where the dead body was buried.
29. Ms. B. Bhuyan, learned Additional PP further submits that thereafter
the Investigating Officer informed the Magistrate and after arrival of the
Magistrate and the Circle Officer, Dhing circle, the dead body was exhumed
as shown by the accused persons and inquest was made on the dead body.
The IO prepared the sketch map and examined the witnesses. Thereafter
the police registered the FIR lodged by Rumena Khatoon and registered the
case as Dhing P.S. Case no. 61/08 under section 302/201/34 IPC. Police
examined other witnesses and went searching for the other accused
persons involved in the case but could not find them out. He arrested the
accused persons Habibur and Azizul and forwarded them to the Court. In
cross examination, he reiterated that on the basis of the GD Entry he
visited the place of occurrence i.e., going to Matikhula Bazar, taking the
accused persons into custody, preparing the sketch map at the
embankment, seizing the items, exhuming the dead body, holding the
inquest and sending the dead body for Post Mortem examination.
30. Ms. B. Bhuyan, learned Additional PP submits that PW-1 is a co-
villager, PW-2 is the wife of the victim, PW-3 is an acquaintance. PW-4 is
also an acquaintance, PW-5 is the VDP Secretary of Village No. 2,
Kandhulimari having a Pharmacy at Kandhulimari, PW-6 is a shop-owner,
PW-7 is also an acquaintance and PW-8 is the Doctor. PW-2 who is the wife
of the deceased deposed that she knew all the accused persons and they
are from her village. The occurrence took place on 14.04.2008. On the day
of occurrence at around 6 O'clock in the afternoon, her husband Azibur was
taken away from their house by the accused persons informing her that
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they had a discussion regarding earth cutting towards Roumari. Accordingly,
her husband went with the accused persons. She waited in their house but
her husband did not return till morning. During night hours, some co-
villagers came to her house and she informed them that her husband had
not returned. She informed about the fact to Ajgar Ali, one of her uncles,
who had already expired. In the morning, she informed the co-villagers, the
VDP and the village head man Nurul Islam (PW-1). Then she went to the
police station at around 7-7:30 am.
31. Ms. B. Bhuyan, learned Additional PP submits that PW-4, Abul
Kasem has deposed that the incident took place on 14.04.2008 on the day
of occurrence, he was standing at the gateway of his house, then he heard
from Jahangir that Ajibur had been killed and two persons were detained
by the public at Matkhula Bazar. On getting the information, he went and
saw that Azizul and Habibur were kept detained in the pharmacy of VDP
Secretary Afzal Khan, and saw around 200 people gathered there. On being
asked about the incident Azizul and Habibur said that both of them along
with Abdul Karim, Fakaruddin, Taibur Rahman, Sahed Ali and some other
had killed Ajibur. Jahed Ali, Javed Ali, Hamat Ali, Jaynal Abedin, Majibur
Rahman, Govt. Gaonburha, Nurul Islam, Abul Kasem Faraji and many other
people were present when the accused duo confessed their guilt. PW- 4
had also deposed that Azizul and Habibur led the police to the place where
Ajibur was kept buried after he was killed.
32. Ms. B. Bhuyan, learned Additional PP submits that PW-5 who is the
VDP Secretary, on the basis of whose information, Police had made GD
entry. PW-5 also deposed that Rumena Khaton (PW-2) told him at about
8:00 PM that on the previous night Azizul Hoque and Habibur called his
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husband away from home, PW-5 has also deposed that Azizul and Habibur
confessed that they both along with Sahed Ali and Fakaruddin had killed
Azibur and buried his body. Accordingly, he informed the Dhing P.S. about
the incident over phone. PW-5 had also reiterated that the police took the
accused duo and went to the place where Azibur was buried. The accused
persons led the police to the place where jute seeds were sown on the
other side of the dead channel of the river and showed the place where the
body of Azibur was buried.
33. Ms. B. Bhuyan, learned Additional PP further submits that PW-6 is
another witness namely Abul Kasem Faraji who deposed that Azizul and
Habibur admitted that they had killed Azibur and buried the body at a
place. Then on being informed by VDP Secretary, the police came there.
34. Ms. B. Bhuyan, learned Additional PP submits that PW-7 Iqbal
Hussain Kabir has also deposed before the Court that Hajibur and Azizul
had admitted that they had killed Ajibur and buried his body and that
Fakaruddin, Abdul Karim and another person were with them. Habibur and
Azizul admitted their guilt and said that they would show the place where
the dead body was buried. PW-8 is the doctor who conducted post mortem
examination of the body of the Azibur Rahman. The accused persons under
section 313 statements had denied their guilt.
35. Ms. B. Bhuyan, learned Additional PP submits that in the case in
hand, the accused persons more particularly Azizul and Habibur disclosed
before the police and public more particularly the witnesses mentioned
above that for some days Habibur, Azibur, Fakaruddin, Sahed Ali, Abdul
Barek etc including the accused Azizul were doing earth cutting work at
village Roumari. Fakaruddin, Abdul Rahim, Sahed Ali, Abdul Hekim had old
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dispute with Azibur and out of that grudge, on 13.04.2008, the said
persons told Azizul and Habibur that they would kill Azibur that very night
and that Habibur and Azizul had to call out Azibur from his residence. The
other accused persons made a threat that they would kill them too if they
didn't do so. The other accused persons told that after calling Azibur, they
had to take him to the embankment of village Roumari, and that they
would be in hiding and as soon as they reach near the embankment of
village Roumari, the other accused persons would attack and kill Azibur.
After Azibur had died, they took his dead body to the land of Fakaruddin's
brother and buried it there following a discussion. When Azibur didn't come
back to his house till morning, people searched for him and people
recovered his bicycle and sandal near the embankment. When Habibur and
Azizul were coming towards the market, people apprehended and
questioned them and they confessed before the public that they killed
Azibur and kept his body buried under the earth. Later they led the police
and showed the site where the dead body was kept buried. The people of
the village dug out the dead body and Abdul Hekim arranged the spade and
other things at the time of digging the pit.
36. Ms. B. Bhuyan, learned Additional PP submits that the other
accused persons Md. Habibur Rahman also deposed that Azizul, Azibur,
Fakaruddin, Barek, Sahed Ali and him, together do earth cutting at
Roumari. In the evening of 13.04.2018, Abdul Hekim, Fakaruddin, A. Barek
and Sahed Ali told Azizul and him that they had to kill Azibur and they
would have to call out Azibur from his residence and take him near the
embankment towards Roumari and the other accused persons would be
hiding near the embankment of village Roumari and that they would kill
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Azibur as soon as he reach there. They were threatened to be killed if they
did not do so. Then at 8:00 pm on that day, Azizul and Habibur went to the
resident of Azibur and asked him to accompany them to collect
remuneration for the art cutting work at Roumari. His wife objected but
when they said that they would return soon, she didn't comment. As
decided earlier, they took Azibur by bicycle towards Roumari. As soon as
they reached the near the embankment of Roumari, A. Hakim and
Fakaruddin came out with khukuri in their hands, Sahed Ali came out with
sword in his hand and Abdul Barek came out with a dao in his hand from
near the embankment where they were hiding. When Azibur died, they
discussed and thought of burying the dead body by digging a pit.
Accordingly, they dug a pit on the cultivation field of Karim, brother of
Fakaruddin and kept the dead body buried. The bicycle and sandal, etc
were lying at the PO and they did not get time to pick the same up. As
Azibur did not return home in the morning, people started searching for
him and recovered bicycle, sandal near the embankment. At that time when
Azizul and Habibur were coming towards the market, people apprehended
and questioned them, they narrated everything before the public and led
the police and showed the place where they buried the dead body.
Accordingly, the dead body was dug out, Abdul Hakim arranged the spade
and other things at the time of burying the dead body. The disclosure
statements of the accused Azizul Hoque and Habibur Rahman duly recorded
and signed by the I.O concerned and it was duly exhibited as Exhibit 5 and
6.
37. Ms. B. Bhuyan, learned Addl. PP submits that the Investigating
Officer took all the steps as required under the law while registering the
Page No.# 24/80
disclosure statement. In the instant case, before the formal FIR was
registered on the information received from PW-2, the Investigating Officer
took all the steps such as thorough interrogation of the accused persons,
before the accused persons led the Investigating Officer to discover the
corpus. The place where the dead body was dug out was absolutely within
the knowledge of appellants Habibur and Azizul. So, GD Entry which was
registered on the basis of information given by PW-5 can be treated as FIR,
on the basis of which investigating agencies set in motion and took all steps
relating to the investigation, so the FIR lodged by Rumena Khatun may be
treated as a 161 statement of PW-2.
38. Ms. B. Bhuyan, learned Additional PP further submits that regarding
the submission made by the learned counsel for the appellant that Habibur
was not found on the dock on the date on which the evidence of PW-1 and
PW-2 were recorded i.e., on 03.04.2014 and has come on record in their
evidence that they did not see Habibur on the dock and he was found
absconding and that Habibur was granted bail on 16.07.2008 on
completion of 90 days. Even after issuance of summon and warrant,
Habibur did not appear, the learned Committal Court issued NBWA on
28.07.2015 as in the report of process server, the accused was not found in
his address. On 28.07.2015 PNA was issued against the accused person
Habibur. On 27.12.2015, Habibur was produced, in the meantime vide order
dated 25.10.2012 committal court committed the matter to the learned
Session Judge, Nagaon and as such on 03.04.2014 when the evidence of
PW-1 and PW-2 was taken they did not find Habibur on the dock as he was
absconding at that time.
39. Regarding the contention of the learned counsel for the appellant,
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that in the light of lamp there is no possibility to see accused Habibur and
Azizul by PW-2 at night, learned APP submits that the accused persons
more particularly Habibur and Azizul are the close relatives of the deceased
and they used to reside adjacent to the house of the informant Rumena.
The accused persons were the cousins of her husband and it is impossible
that the informant would not recognize the accused persons in the light of
the lamp.
40. Ms. B. Bhuyan, learned Addl. PP submits that regarding the
submission of the learned counsel appearing on behalf of the appellant is
that the accused persons are not the resident of No. 2 Kandhulimari but the
resident of village Roumari, in 313 statement although resident of Habibur
Rahman was shown as Roumari but in the chargesheet dated 31.01.2010,
the address of the Habibur was shown as No. 2 Kandhulimari. Thus it can
be understood that after the occurrence had taken place, Habibur might
have changed his address. In the chargesheet dated 31.01.2010 the
address of Azizul was shown as No. 2 Kandhulimari and 313 statement also
he stated his address to be No. 2 Kandulimari. Regarding the submission
that there are lapses in the prosecution case as to non-seizing of lamp used
by Rumena & non-sending the material discovered in the river bank such as
bicycle, sandal and muflar for FSL, the learned APP submits that such lapse
is not fatal to the prosecution case.
41. Ms. B. Bhuyan, learned APP submits that regarding non-sending the
accused persons for TIP, the accused persons are the resident of same
village and are close relatives of the deceased. PW-2 clearly identified the
accused persons Habibur and Azizul while they took her husband away, so
there is no requirement to send the accused persons for test identification
Page No.# 26/80
parade. The accused persons were very much involved in taking away the
deceased on the previous day of the lodging of the FIR, although motive is
not a prime factor to be taking into account in a case of circumstantial
evidence but if the disclosure statement of accused persons Habibur and
Azizul is taken at its face value, the motive of killing is due as dispute arose
for earth cutting work by accused Habibur, Azizul, Fakaruddin, Sahed Ali, A
Hakim and it was an old dispute.
42. Ms. B. Bhuyan, learned APP submits that there is no explanation on
behalf of the accused persons on the 313 statements which has given
additional link to the circumstantial evidence. Although inculpatory part of
the disclosure statement made by Azizul and Habibur would not be
admissible but exculpatory part made in the disclosure statement would be
admissible in evidence.
43. Ms. B. Bhuyan, learned APP further submits that all the accused
persons whose names came in evidence had common intention to kill the
deceased because of the dispute which had taken place due to earth
cutting work and regarding the involvement of accused appellant Miya
Hussain, his name was not taken by any of the witnesses as well as by the
accused Habibur and Azizul.
44. Ms. B. Bhuyan, has relied on the judgments of the Hon'ble Supreme
Court and Hon'ble High Court in the following cases:-
(i) Yanab Sheikh vs State of West Bengal reported in (2013) 6 SCC 428
(ii) Prem Singh vs State (Nct of Delhi) reported in (2023) 3 SCC 372
(iii) Ningappa Yallappa Hosamani & Ors vs State of Karnataka & Ors
reported in (2009) 14 SCC 582
Page No.# 27/80
(iv) Antar Singh vs State of Rajasthan reported in (2004) 10 SCC 657
(v) Simon and Ors vs State of Karnataka reported in (2004) 2 SCC 694
(vi) Dayal Singh and Ors vs State of Uttaranchal reported in (2012) 8 SCC
(vii) Superintendent of Police, CBI and Others vs Tapan Kumar Singh
reported in (2003) 6 SCC 175
(viii) Charansingh vs State of Maharashra and Ors reported in (2021) 5 SCC
(ix) Subed Ali And Ors vs State of Assam reported in (2020) 10 SCC 517
(x) Suresh And Another vs State of U.P reported in (2001) 3 SCC 673
(xi) Sahadevan & Anr vs State of Tamil Nadu reported in (2012) 6 SCC 403
45. In the case of Yanab Sheikh v State of West Bengal (supra)
the Hon'ble Supreme Court held that .first and foremost, we may examine
the question whether FIR, Ex.1/3, can be treated by the Courts as the
First Information Report and if so, what is the effect of Ex.7 in law,
keeping in view the facts and circumstances of the present case. It is
clearly established on record that the occurrence took place in the evening
of 19th December, 1984. The occurrence was a result of an altercation
and the abuses hurled at PW1 and the deceased by Yanab near the water
tank. Immediately upon the altercation, the accused had ran to his house
and returned along with Najrul and threw a bomb at the deceased. PW1,
brother of the deceased, PW5, Basera Bibi, wife of the deceased and PW6
Abdus Sukur, cousin of the deceased are the eye-witnesses and they said
that they had seen the appellant throwing a bomb upon the deceased and
that the accused, Yanab, had taken the said bomb from the bag of
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Najrul.After the incident, PW6 had gone to the Duni Gram Post Office and
informed the police about the incident over the telephone. He informed
the police that there had been a murder in the village and they should
come. When the police arrived, he was in the village and he met the
police at the house of the deceased Samim. This phone call was taken
and the G.D. Entry was registered by PW14, SI R.P. Biswas. According to
PW14, on 19th December, 1984 at about the 0805 hours, he had received
a telephonic information and noted the information in General Diary No.
708 and thereafter he had proceeded towards village Lauria along with
PW15, SI S. Chaterjee. Ex.7 had been recorded by PW14 and he had
received the written complaint by PW1, Sadek Ali, and the same was
submitted to him after he had reached the village Lauria and was
addressed to the Officer In-charge, Rampurath Police Station. This written
complaint was Ex.1. The cumulative effect of the statements of PW1, PW6
and PW14 clearly indicate that Ex.7 was not the First Information Report
of the incident. It gave no details of the commission of the crime as to
who had committed the crime and how the occurrence took place. A First
Information Report normally should give the basic essentials in relation to
the commission of a cognizable offence upon which the Investigating
Officer can immediately start his investigation in accordance with the
provisions of Section 154, Chapter XII of the Code. In fact, it was only
upon reaching the village Lauria that PW14 got particulars of the incident
and even the names of the persons who had committed the crime. A
written complaint with such basic details was given by PW1 under his
signatures to the police officer, who then made endorsement as Ex.1/1
and registered the FIR as Ex.1/3. In these circumstances, we are unable
Page No.# 29/80
to accept the contention that Ex.7 was, in fact and in law, the First
Information Report and that Ex.1/3 was a second FIR for the same
incident/occurrence which was not permissible and was opposed to the
provisions of the Section 162 of the Code. In the case of Manu Sharma v.
State (NCT of Delhi) (2010) 6 SCC 1, a Bench of this Court took the view
that cryptic telephone messages could not be treated as FIRs as their
object is only to get the police to the scene of offence and not to register
the FIR. The said intention can also be clearly culled out from the bare
reading of Section 154 of the Code which states that the information if
given orally should be reduced to writing, read over to the informant,
signed by the informant and a copy of the same be given to him, free of
cost. Similar view was also expressed by a Bench of this Court in the case
of State of Andhra Pradesh v. V.V. Panduranga Rao (2009) 15 SCC 211,
where the Court observed as under: -"10. Certain facts have been rightly
noted by the High Court. Where the information is only one which
required the police to move to the place of occurrence and as a matter of
fact the detailed statement was recorded after going to the place of
occurrence, the said statement is to be treated as FIR. But where some
cryptic or anonymous oral message which did not in terms clearly specify
a cognizable offence cannot be treated as FIR. The mere fact that the
information was the first in point of time does not by itself clothe it with
the character of FIR. The matter has to be considered in the background
of Sections 154 and 162 of the Code of Criminal Procedure, 1973 (in short
"the Code"). A cryptic telephonic message of a cognizable offence
received by the police agency would not constitute an FIR."Thus, the
purpose of telephone call by PW6, when admittedly he gave no details,
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leading to the recording of Entry, Ex.7, would not constitute the First
Information Report as contemplated under Section 154 of the Code. The
reliance placed by the learned counsel appearing for the appellant upon
the provisions of Section 162 of the Code, is thus, not well-founded. Even
in the case of Ravishwar Manjhi & Ors. v. State of Jharkhand, (2008) 16
SCC 561, another Bench of this Court took the view that "..we are not
oblivious to the fact that a mere information received by a police officer
without any details as regards the identity of the accused or the nature of
the injuries caused to the victim, name of the culprits, may not be treated
as FIR, but had the same been produced, the nature of the information
received by the police officer would have been clear.....On the plain
construction of the language and scheme of Sections 154, 156 and 190 of
the Code, it cannot be construed or suggested that there can be more
than one FIR about an occurrence. However, the opening words of Section
154 suggest that every information relating to commission of a cognizable
offence shall be reduced to writing by the officer in-charge of a Police
Station. This implies that there has to be the first information report about
an incident which constitutes a cognizable offence. The purpose of
registering an FIR is to set the machinery of criminal investigation into
motion, which culminates with filing of the police report in terms
of Section 173(2) of the Code. It will, thus, be appropriate to follow the
settled principle that there cannot be two FIRs registered for the same
offence. However, where the incident is separate; offences are similar or
different, or even where the subsequent crime is of such magnitude that it
does not fall within the ambit and scope of the FIR recorded first, then a
second FIR could be registered. The most important aspect is to examine
Page No.# 31/80
the inbuilt safeguards provided by the legislature in the very language
of Section 154 of the Code. These safeguards can be safely deduced from
the principle akin to double jeopardy, rule of fair investigation and further
to prevent abuse of power by the investigating authority of the police.
Therefore, second FIR for the same incident cannot be registered. Of
course, the Investigating Agency has no determinative right. It is only a
right to investigate in accordance with the provisions of the Code. The
filing of report upon completion of investigation, either for cancellation or
alleging commission of an offence, is a matter which once filed before the
court of competent jurisdiction attains a kind of finality as far as police is
concerned, may be in a given case, subject to the right of further
investigation but wherever the investigation has been completed and a
person is found to be prima facie guilty of committing an offence or
otherwise, re examination by the investigating agency on its own should
not be permitted merely by registering another FIR with regard to the
same offence. If such protection is not given to a suspect, then possibility
of abuse of investigating powers by the Police cannot be ruled out. It is
with this intention in mind that such interpretation should be given
to Section 154 of the Code, as it would not only further the object of law
but even that of just and fair investigation. More so, in the backdrop of
the settled canons of criminal jurisprudence, re-investigation or de novo
investigation is beyond the competence of not only the investigating
agency but even that of the learned Magistrate. The courts have taken
this view primarily for the reason that it would be opposed to the scheme
of the Code and more particularly Section 167(2) of the Code.
46. In the case of Prem Singh Vs. State (NCT of Delhi) (supra) the
Page No.# 32/80
Hon'ble Supreme Court held that it is also pertinent to notice that in the
said case of Sharad Birdhichand Sarda, this Court also enunciated the
principles for using the false explanation or false defence as an additional
link to complete the chain of circumstances in the following terms: - "158. It
may be necessary here to notice a very forceful argument submitted by the
Additional Solicitor General relying on a decision of this Court in Deonandan
Mishra v. State of Bihar 7 to supplement his argument that if the defence
case is false it would constitute an additional link so as to fortify the
prosecution case....159. It will be seen that this Court while taking into
account the absence of explanation or a false explanation did hold that it
will amount to be an additional link to complete the chain but these
observations must be read in the light of what this Court said earlier viz.
before a false explanation can be used as additional link, the following
essential conditions must be satisfied:(1) various links in the chain of
evidence led by the prosecution have been satisfactorily proved, (2) the
said circumstance points to the guilt of the accused with reasonable
definiteness, and (3) the circumstance is in proximity to the time and
situation...160. If these conditions are fulfilled only then a court can use a
false explanation or a false defence as an additional link to lend an
assurance to the court and not otherwise......Apart from the above, we may
also usefully take note of the recent decision of this Court in the case of
Sabitri Samantaray (supra). Therein, with reference to Section 106 of the
Evidence Act, a 3-Judge Bench of this Court noted that if the accused had
a different intention, the facts are especially within his knowledge which he
must prove; and if, in a case based on circumstantial evidence, the accused
evades response to an incriminating question or offers a response which is
Page No.# 33/80
not true, such a response, in itself, would become an additional link in the
chain of events. The relevant part of the enunciation by this Court reads as
under: -"19. Thus, although Section 106 is in no way aimed at relieving the
prosecution from its burden to establish the guilt of an accused, it applies
to cases where chain of events has been successfully established by the
prosecution, from which a reasonable inference is made out against the
accused. Moreover, in a case based on circumstantial evidence, whenever
an incriminating question is posed to the accused and he or she either
evades response, or offers a response which is not true, then such a
response in itself becomes an additional link in the chain of events.As
regards the relevancy of motive in a case based on circumstantial evidence,
the weight of authorities is on principles that if motive is proved, that would
supply another link in the chain of circumstantial evidence but, absence of
motive cannot be a ground to reject the prosecution case, though such an
absence of motive is a factor that weighs in favour of the accused. In
Anwar Ali and Anr. v. State of Himachal Pradesh: (2020) 10 SCC 166, this
Court has referred to and relied upon the principles enunciated in previous
decisions and has laid down as under: - "24. Now so far as the submission
on behalf of the accused that in the present case the prosecution has failed
to establish and prove the motive and therefore the accused deserves
acquittal is concerned, it is true that the absence of proving the motive
cannot be a ground to reject the prosecution case. It is also true and as
held by this Court in Suresh Chandra Bahri v. State of Biharthat if motive is
proved that would supply a link in the chain of circumstantial evidence but
the absence thereof cannot be a ground to reject the prosecution case.
However, at the same time, as observed by this Court in Babu, absence of
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motive in a case depending on circumstantial evidence is a factor that
weighs in favour of the accused. In paras 25 and 26, it is observed and
held as under:-"25. In State of U.P. v. Kishanpal, this Court examined the
importance of motive in cases of circumstantial evidence and observed:'38.
... the motive is a thing which is primarily known to the accused themselves
and it is not possible for the prosecution to explain what actually promoted
or excited them to commit the particular crime.39. The motive may be
considered as a circumstance which is relevant for assessing the evidence
but if the evidence is clear and unambiguous and the circumstances prove
the guilt of the accused, the same is not weakened even if the motive is
not a very strong one......This Court has also held that the absence of
motive in a case depending on circumstantial evidence is a factor that
weighs in favour of the accused. (Vide Pannayar v. State of T.N. 27).
47. In the case of Ningappa Yallappa Hosamani and Ors vs State
of Karnataka and Ors (Supra) the Hon'ble Supreme Court held that as
regards recovery of the dead body is concerned, the High Court noted as
follows:As regards the second ground urged by the learned counsel for the
appellants, there also what has been stated is that a rumour had been
spread that four persons had committed the murder of Namadeva and his
dead body had been buried near the canal and later he was called on
2.3.2005 by Lokapur police. The mahazars regarding the place of offence
of murder conducted on 3.2.2005 and the place where the dead body of
Namadev was recovered were conducted in the early hours of morning of
3.2.2005 and it is not unlikely that information immediately spread in the
village and immediately Namadev's dead body had been placed near the
place of canal. Therefore, this cannot be taken as indicating the knowledge
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the people about the burial of the dead body even before the dead body of
Namadev was detected in furtherance of the voluntary information
furnished by the accused Nos.1 and 2. For this reason, we do not accept
the interpretation put forth by the learned counsel for the appellants with
regard to the recovery of dead body of Namadev.The evidence of P.W.20,
investigating officer shows that the accused Nos.1 and 2 were arrested on
3.2.2005 at Mahalingapura and in furtherance of the interrogation, they
furnished information and police and panchas were led by the accused
Nos.1 and 2 to a place near the canal. This claim of P.W.20 has been
corroborated by the evidence of P.W.14-Basappa Ramappa Pujari, who says
that he had accompanied the police and panchas to the place where the
accused Nos.1 and 2 were taken and the accused Nos.1 and 2 showed a
place as a place of burial of Namdev's body. Then, his deposition further
shows that he and C.Ws 22, 24 and 25 were asked to dig the land and
when they dug the land, they found a gunny bag. That gunny bag
contained a dead body which was later identified by PWs 1 and 5 as the
body of Nadadev. We have very carefully gone through the evidence of
PWs 14 and 20 in this regard and find no material to disbelieve the version
of PW-14 that the place was shown by A-1 and A-2 and that when the
place was dug up, they found a gunny bag containing Namadev's dead
body. This evidence conclusively shows that the accused Nos. 1 and 2 had
buried the said gunny bag containing the dead body of Namadev and that
it was detected in furtherance of the voluntary information furnished by
them. In State of Maharashtra vs. Suresh (2000 (1) SCC 471) it was
observed as follows:"Three possibilities are there when an accused points
out the place where dead body or an incriminating material was concealed
Page No.# 36/80
without setting that it was concealed by him. One is that he himself would
have concealed it. Second is that he would have seen somebody else
concealing it. And the third is that he would have been told by another
person that it was concealed there. But if the accused declines to tell the
criminal court that his knowledge about the concealment was on account of
one of the last two possibilities the criminal court can presume that it was
concealed by the accused himself. This is because the accused is the only
person who car offer the explanation as to how else he came to know of
such concealment and if he chooses to refrain from telling the court as to
how else he came to know of it, the presumption is a well- justified course
to be adopted by the criminal court that the concealment was made by
him. Such an interpretation is not inconsistent with the principle embodied
in Section 27 of the Evidence Act."
48. In the case of Antar Singh V. State of Rajasthan (supra) the
Hon'ble Supreme Court held that the expression "provided that" together
with the phrase "whether it amounts to a confession or not" show that the
section is in the nature of an exception to the preceding provisions
particularly Section 25 and 26. It is not necessary in this case to consider if
this Section qualifies, to any extent, Section 24, also. It will be seen that
the first condition necessary for bringing this Section into operation is the
discovery of a fact, albeit a relevant fact, in consequence of the information
received from a person accused of an offence. The second is that the
discovery of such fact must be deposed to. The third is that at the time of
the receipt of the information the accused must be in police custody. The
last but the most important condition is that only "so much of the
information" as relates distinctly to the fact thereby discovered is
Page No.# 37/80
admissible. The rest of the information has to be excluded. The word
"distinctly" means "directly", "indubitably", "strictly", "unmistakably". The
word has been advisedly used to limit and define the scope of the provable
information. The phrase "distinctly" relates "to the fact thereby discovered"
and is the linchpin of the provision. This phrase refers to that part of the
information supplied by the accused which is the direct and immediate
cause of the discovery. The reason behind this partial lifting of the ban
against confessions and statements made to the police, is that if a fact is
actually discovered in consequence of information given by the accused, it
affords some guarantee of truth of that part, and that part only, of the
information which was the clear, immediate and proximate cause of the
discovery. No such guarantee or assurance attaches to the rest of the
statement which may be indirectly or remotely related to the fact
discovered. At one time it was held that the expression "fact discovered" in
the section is restricted to a physical or material fact which can be
perceived by the senses, and that it does not include a mental fact, now it
is fairly settled that the expression "fact discovered" includes not only the
physical object produced, but also the place from which it is produced and
the knowledge of the accused as to this, as noted in Palukuri Kotayya's
case and in Udai Bhan v. State of Uttar Pradesh.
49. In the case of Simon and ors V. State of Karnataka (supra) the
Hon'ble Supreme court held that whether the identification of an accused
for the first time in court in absence of any test identification parade can be
made the basis of the conviction depends upon the facts and circumstances
of the case. No hard and fast rule can be laid down. We have been taken
through the testimony of PW 63 (Achutananda). The main criticism that
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has been levelled by Mr. Gonsalves to the deposition of PW-63 who was
working in the Special Task Force and was travelling in the second bus and
who identified accused No. 18, 30 and 31 is that these accused even as per
testimony of PW63 were pointed out to him at the place of occurrence by
another witness PW 89 (Alageshan) who was working at the relevant time
as a Forest Guard and had claimed that he knew the accused. It is further
pointed out that PW 63 does not claim that he knew these accused earlier.
Further submission of learned counsel is that at best PW 63 only had the
opportunity of getting a fleeting glimpse of the accused from a distance
and that too when the accused were running away and the said glimpse
was also only of the side face. Similar criticism has been made of PW 64
who identified accused Nos. 30 and 31. This witness was travelling in the
first bus and had received injuries. PW65 who was travelling in the second
bus also identified accused No. 18 and 31. He was also a member of the
Special Task Force. The learned counsel has on similar grounds assailed the
testimony of all the witnesses who have identified the appellants. Appellant
Simon has been identified by 16 witnesses, Ghana Prakash has been
identified by 4 witnesses, Madhiah has been identified by 9 witnesses and
Bilavendra has been identified by one witness. We may, however, note that
it is not the quantity which matters but the quality of witnesses that matter.
Further, learned counsel for the appellants submits that PW 89 who at the
relevant time was working as the Forest Guard has wrongly identified all
the appellants except Simon. It is contended that this star witness of the
prosecution who is alleged to have pointed out and shown the appellants to
the other witnesses who identified them in court having himself wrongly
identified all accused except Simon, the testimony of other witnesses
Page No.# 39/80
deserves to be discarded on this ground itself and this is said to be fatal to
the case of the prosecution. The conviction, it is contended, based on
identification of such witnesses cannot be sustained.....The next contention
urged is that not holding of test identification parade, identifying the
accused is fatal to the case of the prosecution in the present case. The
submission is that by very nature, the identification of the accused for the
first time in court is a weak piece of evidence and cannot be made the
basis of conviction. Reliance has been placed on State of Maharashtra
through CBI v. Sukhdev Singh alias Sukha & Ors [(1992) 3 SCC 700] in
support of the contention that in absence of test identification parade, it
would be extremely risky to place implicit reliance on identification made
for the first time in court after a long lapse of time. But it has to be kept in
mind that this principle will apply to case of total strangers. In this
contention, it has to be kept in view that PW 97 knew the accused as
stated hereinbefore. The question of identification arises when accused are
not known. Since the appellants were known in the manner above stated,
the holding of a test identification parade, on the facts of the case, would
have been wholly unnecessary. Regarding the contention about the names
of the appellants not being mentioned in the FIR, it has been explained
that the FIR was not recorded on the information of PW97. PW97 had
already been shifted to the hospital before recording FIR and, therefore,
non-mentioning of the names of the accused in the FIR is of no
consequence. On facts of the case, the lapse of the time between the date
of the incident and the date of identification by PW97 is also of no
consequence. As already noticed, out of fifty accused, PW 97 deposed only
about presence of four appellants who were earlier known to him.....Relying
Page No.# 40/80
upon Budhsen & Anr. v. State of U.P. [(1970) 2 SCC 128], it was contended
that evidence as to identification deserves to be subjected to a close and
careful scrutiny by the court. The decision in Shaikh Umar Ahmed Shaikh &
Anr. v. State of Maharashtra was relied for the proposition that when the
accused were already shown to the witnesses, their identification in court
by witnesses was meaningless and such identification lost all its value and
could not be made the basis for rendering conviction. The legal position on
the aspect of identification is well settled. Under Section 9 of the Indian
Evidence Act, 1972, the identity of the accused persons is a relevant fact.
We have no difficulty in accepting the contention that evidence of mere
identification of an accused person at the trial for the first time is from its
very nature inherently of a weak character. The purpose of a prior test
identification is to test and strengthen the trustworthiness of that evidence.
Courts generally look for corroboration of the sole testimony of the
witnesses in court so as to fix the identity of the accused who are stranger
to them in the form of earlier identification proceedings. This rule of
prudence, however, is subject to exceptions, when, for example, the court
is impressed by a particular witness on whose testimony it can safely rely,
without such or other corroboration. It has also to be borne in mind that
the aspect of identification parade belongs to the stage of investigation,
and there is no provision in the Code of Criminal Procedure which obliges
the investigating agency to hold, or confers a right upon the accused to
claim a test identification parade. Mere failure to hold a test identification
parade would not make inadmissible the evidence of identification in court.
What weight is to be attached to such identification is a matter for the
courts of fact to examine. In appropriate cases, it may accept the evidence
Page No.# 41/80
of identification even without insisting on corroboration {see Malkhansingh
& Ors. vs. State of M.P. These well settled principle, however, have no
applicability to facts of the instant case. This is a case where appellants
were known to PW 97 and he has identified them in court and other
witnesses, as we would presently notice, corroborated the testimony of
PW97, though, in our view, conviction could be sustained on the sole
testimony of PW 97.
50. In the case of Dayal Singh and Ors V. State of Uttaranchal
(supra) the Hon'ble Supreme Court held that Dr. C.N. Tewari, PW3, medical
officer in the Civil Hospital, Haldwani, performed the post mortem upon the
body of the deceased and did not find any ante-mortem or post-mortem
injuries on the dead body. On internal examination, he did not find any
injuries and could not ascertain the cause of death. Further, he preserved
the viscera and gave the post-mortem report, Exhibit Ka-4. After noticing
that there was no injury or abnormality found upon external and internal
examination of the dead body, the doctor in his report recorded as
under:"Viscera in sealed jars handed over to the accompanying Constables.
Jar No.1 : Sample preservative saline water. Jar No.2 Pieces of stomach 44
Page 6 Jar No.3 Pieces of liver, spleen and kidney. Death occurred about
one day back.Cause of death could not be ascertained. Hence, viscera
preserved.....We have already discussed above that the presence of PW2,
PW4 and PW5 at the place of occurrence was in the normal course of
business and cannot be doubted. Their statements are reliable, cogent and
consistent with the story of the prosecution. Merely because PW3 and PW6
have failed to perform their duties in accordance with the requirements of
law, and there has been some defect in the investigation, it will not be to
Page No.# 42/80
the benefit of the accused persons to the extent that they would be
entitled to an order of acquittal on this ground. Reference in this regard
can usefully be made to the case of C. Muniappan v. State of Tamil
Nadu.....We really need not reiterate various judgments which have taken
the view that the purpose of an expert opinion is primarily to assist the
Court in arriving at a final conclusion. Such report is not binding upon the
Court. The Court is expected to analyse the report, read it in conjunction
with the other evidence on record and 44 Page 40 then form its final
opinion as to whether such report is worthy of reliance or not. Just to
illustrate this point of view, in a given case, there may be two diametrically
contradictory opinions of handwriting experts and both the opinions may be
well reasoned. In such case, the Court has to critically examine the basis,
reasoning, approach and experience of the expert to come to a conclusion
as to which of the two reports can be safely relied upon by the Court. The
assistance and value of expert opinion is indisputable, but there can be
reports which are, ex facie, incorrect or deliberately so distorted as to
render the entire prosecution case unbelievable. But if such eye-witnesses
and other prosecution evidence are trustworthy, have credence and are
consistent with the eye version given by the eye-witnesses, the Court will
be well within its jurisdiction to discard the expert opinion. An expert
report, duly proved, has its evidentiary value but such appreciation has to
be within the limitations prescribed and with careful examination by the
Court. A complete contradiction or inconsistency between the medical
evidence and the ocular evidence on the one hand and the statement of
the prosecution witnesses between themselves on the other, may result in
seriously denting the case of the prosecution in its entirety but not
Page No.# 43/80
otherwise.
51. In the case of Superintendent of Police, CBI and Ors. V.
Tapan Kumar Singh (supra) the Hon'ble Supreme Court held that the
crucil finding recorded by the High Court is that the facts stated in the G.D.
Entry did not disclose the commission of a cognizable offence, and
consequently, the police had no power or jurisdiction to investigate the
allegations made therein. Thus, the investigation undertaken, and the
search and seizures made were illegal and without jurisdiction and
deserved to be quashed. It is the correctness of this finding which is
assailed before us by the appellants. They contend that the information
recorded in the G.D. Entry does disclose the commission of a cognizable
offence. They submitted that even if their contention, that after recording
the G.D. Entry only a preliminary enquiry was made, is not accepted, they
are still entitled to sustain the legality of the investigation on the basis that
the G.D. Entry may be treated as a First Information Report, since it
disclosed the commission of a cognizable offence. The parties before us did
not dispute the legal position that a G.D. Entry may be treated as a First
Information Report in an appropriate case, where it discloses the
commission of a cognizable offence. If the contention of the appellants is
upheld, the order of the High Court must be set aside because there was in
law a First Information Report disclosing the commission of a cognizable
offence, the police had the power and jurisdiction to investigate, and in the
process of investigation to conduct search and seizure. It is, therefore, not
necessary for us to consider the authorities cited at the bar on the
question of validity of the preliminary enquiry and the validity of the search
and seizure. We have earlier in this judgment reproduced the G.D. Entry
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dated 17-10-1990 in extensor. The facts stated therein are that the
respondent was a corrupt official and was in the habit of accepting Illegal
gratification; that he had demanded and accepted cash to the tune of
rupees on lakh approximately; and that he would be carrying with him the
said amount while going to Nagpur by Gitanjali Express on 17-10-1990.....
Since we have directed the investigation to continue, the investigating
agency should complete the investigation and thereafter take such action
as may be justified in law. Nothing said in this judgment should be
construed as expression of opinion on the merit of the case. It is for the
investigating agency to collect all necessary evidence and take such steps
as may be justified, having regard to the evidence collected by it. We
should not be understood to have expressed any opinion on the
truthfulness or otherwise of the allegations made in the report on the basis
of which the investigation was undertaken. Observations, if any, have been
made only for the purpose of deciding the question as to whether the
investigating agency was justified in taking up the investigation pursuant to
the G.D. Entry No. 681 recorded on the 17 th October, 1990. Similarly, any
observation made by the High Court while disposing of the Revision should
not prejudice the case of the parties.
52. In the case of Charansingh vs. State of Maharashtra and Ors
(supra) the Hon'ble Supreme Court held that even as held by this Court in
the case of Superintendent of Police, CBI v. Tapan Kumar Singh (2003) 6
SCC 175, a GD entry recording the information by the informant disclosing
the commission of a cognizable offence can be treated as FIR in a given
case and the police has the power and jurisdiction to investigate the same.
However, in an appropriate case, such as allegations of misconduct of
Page No.# 45/80
corrupt practice by a public servant, before lodging the first information
report and further conducting the investigation, if the preliminary enquiry is
conducted to ascertain whether a cognizable offence is disclosed or not, no
fault can be found. Even at the stage of registering the FIR, what is
required to be considered is whether the information given discloses the
commission of a cognizable offence and the information so lodged must
provide a basis for the police officer to suspect the commission of a
cognizable offence. At this stage, it is enough if the police officer on the
basis of the information given suspects the commission of a cognizable
offence, and not that he must be convinced or satisfied that a cognizable
offence has been committed. Despite the proposition of law laid down by
this Court in catena of decisions that at the stage of lodging the first
information report, the police officer need not be satisfied or convinced that
a cognizable offence has been committed, considering the observations
made by this Court in the case of P. Sirajuddin (supra) and considering the
observations by this Court in the case of Lalita Kumari (supra) before
lodging the FIR, an enquiry is held and/or conducted after following the
procedure as per Maharashtra State Anti-corruption & Prohibition
Intelligence Bureau Manual, it cannot be said that the same is illegal and/or
the police officer, Anti-corruption Bureau has no jurisdiction and/or
authority and/or power at all to conduct such an enquiry at pre-registration
of FIR stage.
53. In the case of Subed Ali and Ors v. State of Assam (supra), the
Hon'ble Supreme Court held that common intention consists of several
persons acting in unison to achieve a common purpose, though their roles
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may be different. The role may be active or passive is irrelevant, once
common intention is established. There can hardly be any direct evidence
of common intention. It is more a matter of inference to be drawn from the
facts and circumstances of a case based on the cumulative assessment of
the nature of evidence available against the participants. The foundation for
conviction on the basis of common intention is based on the principle of
vicarious responsibility by which a person is held to be answerable for the
acts of others with whom he shared the common intention. The presence
of the mental element or the intention to commit the act if cogently
established is sufficient for conviction, without actual participation in the
assault. It is therefore not necessary that before a person is convicted on
the ground of common intention, he must be actively involved in the
physical activity of assault. If the nature of evidence displays a prearranged
plan and acting in concert pursuant to the plan, common intention can be
inferred. A common intention to bring about a particular result may also
develop on the spot as between a number of persons deducible from the
facts and circumstances of a particular case. The coming together of the
accused to the place of occurrence, some or all of whom may be armed,
the manner of assault, the active or passive role played by the accused,
are but only some of the materials for drawing inferences. In Ramaswami
Avyangar vs. State of T.N.,in order to establish common intention it was
observed as follows : "12.... The acts committed by different confederates
in the criminal action may be different but all must in one way or the other
participate and engage in the criminal enterprise, for instance, one may
only stand guard to prevent any person coming to the relief of the victim,
or may otherwise facilitate the execution of the common design. Such a
Page No.# 47/80
person also commits an "act" as much as his co participants actually
committing the planned crime. In the case of an offence involving physical
violence, however, it is essential for the application of Section 34 that the
person who instigates or aids the commission of the crime must be
physically present at the actual commission of the crime for the purpose of
facilitating or promoting the offence, the commission of which is the aim of
the joint criminal venture. Such presence of those who in one way or the
other facilitate the execution of the common design, is itself tantamount to
actual participation in the 'criminal act'. The essence of Section 34 is
simultaneous consensus of the minds of persons participating in the
criminal action to bring about a particular result. Such consensus can be
developed at the spot and thereby intended by all of them....In Nandu
Rastogi vs. State of Bihar, with regard to the inference for common
intention this Court observed as follows : "17.... They came together, and
while two of them stood guard and prevented the prosecution witnesses
from intervening, three of them took the deceased inside and one of them
shot him dead. Thereafter they fled together. To attract Section 34 IPC it is
not necessary that each one of the accused must assault the deceased. It
is enough if it is shown that they shared a common intention to commit the
offence and in furtherance thereof each one played his assigned role by
doing separate acts, similar or diverse ....In Surender Chauhan vs. State of
Madhya Pradesh, (2000) 4 SCC 110, it was noticed that absence of a
positive act of assault was not a necessary ingredient to establish common
intention observing :....."11. Under Section 34 a person must be physically
present at the actual commission of the crime for the purpose of facilitating
or promoting the offence, the commission of which is the aim of the joint
Page No.# 48/80
criminal venture. Such presence of those who in one way or the other
facilitate the execution of the common design is itself tantamount to actual
participation in the criminal act. The essence of Section 34 is simultaneous
consensus of the minds of persons participating in the criminal action to
bring about a particular result. Such consensus can be developed at the
spot and thereby intended by all of them....A similar view was taken
in Nand Kishore vs. State of Madhya Pradesh.
54. In the case of Suresh & Anr V. State of U.P (supra), the Hon'ble
Supreme Court held that as the section speaks of doing "a criminal act by
several persons" we have to look at section 33 IPC which defines the "act".
As per it, the word "act" denotes as well as series of acts as a single act.
This means a criminal act can be a single act or it can be the
conglomeration of a series of acts. How can a criminal act be done by
several persons?. In this context, a reference to sections 35, 37 and 38 IPC
in juxtaposition with section 34, is of advantage. Those four provisions can
be said to belong to one cognate group wherein different positions when
more than one person participating in the commission of one criminal act
are adumbrated. Section 35 says that when an act is done by several
persons each of such persons who joins in the act with mens rea is liable
for the act "in the same manner as if the act were done by him alone with
that knowledge or intention". The section differs from section 34 only
regarding one postulate. In the place of common intention of all such
persons (in furtherance of which the criminal act is done), as is required in
Section 34, it is enough that each participant who joins others in doing the
criminal act, has the required mens rea...Section 37 deals with the
commission of an offence "by means of several acts". The section renders
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anyone who intentionally cooperates in the commission of that offence "by
doing any one of those acts" to be liable for that offence. Section 38 also
shows another facet of one criminal act being done by several persons
without connecting the common bond i.e. "in furtherance of the common
intention of all". In such a case would be guilty of different offence or
offences but not for the same offence. Among the above four provisions the
common denominator is the participation of several persons (more than
one person) in the commission of a criminal act. The special feature of
section 34 is only that such participation by several persons should be "in
furtherance of the common intention of all". Hence, under section 34 one
criminal act, composed of more than one act, can be committed by more
than one persons and if such commission is in furtherance of the common
intention of all of them, each would be liable for the criminal act so
committed....Obviously section 34 is not meant to cover a situation which
may fall within the fictitiously concocted section caricatured above. In that
concocted provision the co-accused need not do anything because the act
done by the principal accused would nail the co-accused also on the ground
that such act was done by that single person in furtherance of the common
intention of all the several persons. But Section 34 is intended to meet a
situation wherein all the co-accused have also done something to constitute
the commission of a criminal act... Thus, to attract Section 34 IPC two
postulates are indispensable: (1) The criminal act (consisting of a series of
acts) should have been done, not by one person, but more than one
person, (2) Doing of every such individual act cumulatively resulting in the
commission of criminal offence should have been in furtherance of the
common intention of all such persons.
Page No.# 50/80
55. In the case of Sahadevan and Anr vs. State of Tamil Nadu
(supra), the Hon'ble Supreme court held that -
"14. It is a settled principle of criminal jurisprudence that extra-judicial
confession is a weak piece of evidence. Wherever the Court, upon due
appreciation of the entire prosecution evidence, intends to base a conviction on
an extra- judicial confession, it must ensure that the same inspires confidence
and is corroborated by other prosecution evidence. If, however, the extra-
judicial confession suffers from material discrepancies or inherent
improbabilities and does not appear to be cogent as per the prosecution
version, it may be difficult for the court to base a conviction on such a
confession. In such circumstances, the court would be fully justified in ruling
such evidence out of consideration.
15. Now, we may examine some judgments of this Court dealing with this
aspect.
15.1. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this
Court stated the principle that an extra-judicial confession, by its very nature is
rather a weak type of evidence and requires appreciation with a great deal of
care and caution. Where an extrajudicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its importance.
15.2. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that it
is well settled that it is a rule of caution where the court would generally look
for an independent reliable corroboration before placing any reliance upon such
extra-judicial confession.
15.3. Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the
dictum that there is no doubt that conviction can be based on extrajudicial
confession, but it is well settled that in the very nature of things, it is a weak
piece of evidence. It is to be proved just like any other fact and the value
thereof depends upon veracity of the witnesses to whom it is made.
15.4.. While explaining the dimensions of the principles governing the
admissibility and evidentiary value of an extra-judicial confession, this Court in
the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the
principle that an extra-judicial confession, if voluntary and true and made in a
fit state of mind, can be relied upon by the court. The confession will have to be
proved like any other fact. The value of evidence as to confession, like any
other evidence, depends upon the veracity of the witness to whom it has been
made.
Page No.# 51/80
The Court, further expressed the view that such a confession can be relied upon
and conviction can be founded thereon if the evidence about the confession
comes from the mouth of witnesses who appear to be unbiased, not even
remotely inimical to the accused and in respect of whom nothing is brought out
which may tend to indicate that he may have a motive of attributing an
untruthful statement to the accused.
15.5. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the
Court, while holding the placing of reliance on extra-judicial confession by the
lower courts in absence of other corroborating material, as unjustified,
observed:
"87. Confession ordinarily is admissible in evidence. It is a relevant
fact. It can be acted upon. Confession may under certain
circumstances and subject to law laid down by the superior judiciary
from time to time form the basis for conviction. It is, however, trite
that for the said purpose the court has to satisfy itself in regard to:
(i) voluntariness of the confession; (ii) truthfulness of the confession;
(iii) corroboration.
89. A detailed confession which would otherwise be within the
special knowledge of the accused may itself be not sufficient to raise
a presumption that confession is a truthful one. Main features of a
confession are required to be verified. If it is not done, no conviction
can be based only on the sole basis thereof."
15.6.. Accepting the admissibility of the extra-judicial confession, the Court in
the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-
"29. There is no absolute rule that an extra-judicial confession can
never be the basis of a conviction, although ordinarily an extra-
judicial confession should be corroborated by some other material.
[Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v.
State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras
41 & 42), Shiva Karam Payaswami Tewari v. State of
Maharashtra and Mohd. Azad v. State of W.B.]
30. In the present case, the extra-judicial confession by Balwan has
been referred to in the judgments of the learned Magistrate and the
Special Judge, and it has been corroborated by the other material
on record. We are satisfied that the confession was voluntary and
was not the result of inducement, threat or promise as
Page No.# 52/80
contemplated by Section 24 of the Evidence Act, 1872."
15.7. Dealing with the situation of retraction from the extra-judicial confession
made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod
v. State of Gujarat [(2009) 5 SCC 740], held as under :
"It appears therefore, that the appellant has retracted his
confession. When an extra-judicial confession is retracted by an
accused, there is no inflexible rule that the court must invariably
accept the retraction. But at the same time it is unsafe for the court
to rely on the retracted confession, unless, the court on a
consideration of the entire evidence comes to a definite conclusion
that the retracted confession is true."
15.8. Extra-judicial confession must be established to be true and made
voluntarily and in a fit state of mind. The words of the witnesses must be clear,
unambiguous and should clearly convey that the accused is the perpetrator of
the crime. The extra-judicial confession can be accepted and can be the basis of
conviction, if it passes the test of credibility. The extra-judicial confession should
inspire confidence and the court should find out whether there are other cogent
circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B.
and Pancho v. State of Haryana.
16. Upon a proper analysis of the above-referred judgments of this Court, it will
be appropriate to state the principles which would make an extra- judicial
confession an admissible piece of evidence capable of forming the basis of
conviction of an accused. These precepts would guide the judicial mind while
dealing with the veracity of cases where the prosecution heavily relies upon an
extra-judicial confession alleged to have been made by the accused.
i) The extra-judicial confession is a weak evidence by itself. It has to be
examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value,
if it is supported by a chain of cogent circumstances and is further corroborated
by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not
suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in
accordance with law."
56. We have considered the submissions advanced by the learned
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counsels for the parties and have also gone through the materials available
on record.
57. In the present case, it transpires that the conviction is on the basis
of circumstantial evidence, the last seen theory and extra-judicial
confession by the accused persons Habibur Rahman and Azizul Hoque
leading to discovery of the dead body of the deceased.
58. On the scrutiny of the evidence of the prosecution witnesses, it
shows that the entire case of the prosecution implicating the accused
persons namely Md. Abdul Hekim, Miya Hussain, Sahed Ali, Azizul Haque @
Aijul Haque and Abdul Rahim and appellant Habibur Rahman as
perpetrators of the crime is based on the last seen theory, circumstantial
evidence and extra-judicial confession and the evidence of PW-2
substantiated by the PW-1, PW-3, PW-4, PW-5, PW-6 and PW-7, PW-8 and
PW-9. The evidence on record has established that before the arrival of
police, the accused persons, appellant Habibur Rahman and Azizul Hoque
were caught by the villagers and had confessed to the murder of deceased
which was recorded by the police. The dead body of deceased was
recovered by the police in presence of Magistrate and villagers. All the PWs
have substantiated this fact. The dead body was buried and it was
recovered after digging the earth on being shown by the appellant and one
Azizul Hoque which clearly indicates that after killing the deceased the dead
body was buried and it was within the knowledge of accused persons,
including the appellant Habibur Rahman and Azizul Hoque. It can thus be
seen that chain of circumstance is complete.
59. To appreciate, we would refer to the deposition by the PWs.
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60. PW 1, Md. Nurul Islam had deposed that he knows the
complainant Rumena Khatoon who has filed the written ejahar with the
Dhing Police Station on 01-01-2008 for the death of her husband. On that
day at 6 a.m., Rumena Khatoon went to his house and informed him that
the accused persons took her husband to Roumari village about the matter
of earth digging discussion. She informed that her husband was called out
by the accused and he did not return till morning. She informed him that
she had already reported the matter to other villagers and she requested
him to go to her house. Accordingly, he went there and on the way while
he reached the market, he saw that some villagers caught hold of and
cordoned accused persons Habibur Rahman and Azizul Hoque. When he
saw this, he immediately informed Dhing Police Station over telephone.
Then, the O/C of Dhing Police Station came there and took over the above
two persons. When police interrogated them before the public, they
admitted that they had killed the deceased Azibur Rahman. The above two
accused persons made statement before the Investigating Officer that they
had concealed the dead body on the ground in the neighbouring shore
situated at a distance of 1 1/2 kms. away on the northern side of the house
of complainant Rumena Khatoon. After hearing this statement of the
accused, the villagers along with the police and the above named two
accused persons went to the site where the dead body was buried and on
being shown by the accused the exact spot, the villagers cordoned the area
along with the accused. The police officer told them that he would inform
the Magistrate and they should await till arrival of the Magistrate. After a
while the Magistrate arrived. The place was dug with the help of accused
persons, appellant Habibur and Azizul Hoque. Then the dead body was dug
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out from the ground. Ext.1 is the seizure list and Ext.1(1) is his signature.
Thereafter the police and the Magistrate took away the dead body as well
as the accused persons. In his cross examination PW1 had stated that it is
not a fact that the two accused persons detained there made any
statement confessing their guilt.
61. PW 2, Musstt. Rumena Khatoon had deposed that the occurrence
took place on 14-04-2008. On the day of occurrence at around 6 O'clock in
the afternoon, her husband Azibur was taken away from their house by the
accused persons informing her that they had a discussion regarding earth
cutting towards Roumari. Accordingly, her husband went with the accused
persons. She was waiting in her house but her husband did not return till
morning. During night hours, some co-villagers came to her house and she
informed about the fact to Ajgar Ali, one of her uncles, who has already
expired. In the morning, she informed the co-villagers, the VDP and the
village headman Nurul Islam (PW-1). Then she went to the police station at
around 7-7:30 a.m. The police detected the bicycle, scandals and muffler of
her husband at the place of occurrence and she was also present there at
that time. The police were waiting for the Magistrate and when the
Magistrate came, the dead body of her husband was dug out from the
spot. The dead body was taken by the police for post-mortem examination.
Later, the dead-body was handed over to them and they cremated the dead
body as per their rites. The place of digging the dead body was spotted by
accused persons appellant Habibur and Azizul. Ext. 2 is the FIR and
Ext.2(1) is her signature.
62. PW 3, Jahed Ali had deposed that occurrence took place some 3-4
years ago on the day of 1st Bohag. After the morning prayer at Masjid he
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was sitting in a tea stall and at that time some villagers along with VDP and
the Gaonbura came there and informed him that one Azibur (Deceased)
was called on by the accused last night and since then he has been
missing. They also told him that some articles like a comforter, a pair of
slippers and a bicycle was lying on the river bank. Then he along with
others went there and found the same. There he saw that the accused
persons Azizul and another Habibur altercating with villagers, when they
were asked by the villagers to find out the deceased. Thereafter both of
them were taken to the market and after interrogation by the villagers and
VDP, they confessed before them that they (Azizul, Habibur, Fakaruddin and
Sahed Ali) killed the deceased and buried the dead body in the Char. After
some time the Officer-in-Charge of Dhing Police Station, Sushil Dutta
arrived there and along with him, they proceeded to the place where the
dead body was buried as led by the accused. Both the accused persons,
Azizul and Habibur dug out the dead body in front of the villagers and took
back the dead body. Police made a seizure list of the articles found in the
river bank vide Ext 1 and he put his sign vide Ext1(2) on it.
63. PW 4, Abul Kasem had deposed that incident took place on last 14-
04-2008. On the day of incident in the morning he was standing in-front of
his house. At that time he heard from Jahangir that Azibur was murdered
and two men were caught by the public at Matkhula bazar. After getting the
information, he went there and had seen Azizul and Habibur Rahman
confined in the pharmacy of VDP Secretary Afjal Khan. Around 200 people
were gathered there. While Azizul and Habibur were asked about the
incident, they told that including them, accused Abdul Karim, Fakaruddin,
Taibur Rahman, Sahed Ali and few others had murdered Azibur. While both
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the accused persons were confessing the offence, at that time Jahed Ali,
Javed Ali, Hasmat Ali, Jaynal Abedin, Majibur Rahman, Sarkari Gaonbura
Nurul Islam, Abul Kashem Faraji and many other were present there. Police
came there on being informed and the accused persons were handed over
to police. Police again asked the accused persons about the incident before
the public, then also, the accused persons gave the same statement. Police
along with the accused persons went to the place where Azibur was
murdered and seized the muffler, sandal and bicycle which were lying at
the place of occurrence. They noticed blood stains in the drain at the place
of occurrence. Thereafter Azizul and Habibur led the police to the place
where Azibur was buried, the place was sowed with jute seeds. After
coming of the Magistrate, it was unearthed and the dead-body of Azibur
was recovered. Police recorded his statement during investigation.
64. PW 5, Afzal Hussain Khan had deposed the he knows the
complainant Rumena Khatoon and also knew the deceased Azibur Rahman.
Deceased was the husband of the complainant. The incident took place on
14-04-2008. At the time of incident, he was in his Pharmacy located at 2
No. Kandulimari and was VDP Secretary. On the day of incident while he
was coming to open his pharmacy, then Rumena told him that on the
previous day at about 8 p.m. Azizul Hoque and Habibur took her husband
Azibur from their house. Her husband was taken out to bring his wage
money on that night Azibur did not come back to the house. At that time
many people gathered at the bazar. Thereafter their VDP and the villagers
went to the house of Azizul and Habibur. On finding them at their house,
they were brought to the bazar at his pharmacy and asked about Azibur.
Then Azizul and Habibur confessed that they in associated with Kasem Ali
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and Fakaruddin had murdered Azibur and dug him. Therefore he informed
the Police of Dhing P.S. about the incident. After coming of police, Azizul
and Habibur were handed over to police and the police took both the
accused persons to the place where Azibur was buried. Subsequently, it is
told that both the accused persons took the police to the place where
Azibur was buried. The accused persons took the police to the other side
where jute seeds were sowed and they showed the place where dead body
of Azibur was buried. The Officer-in -Charge then told that the dead-body
would be unearthed after coming of the Magistrate. When the Magistrate
came there the dead body of Azibur was unearthed from the place and
police took the dead body.
65. PW 6, Abul Kasem Faraji had deposed that the incident took place
in the year 2007. On the day of incident in the morning time he was in shop
at Matkhula. At that time Rumena Khatoon came to the market and
sobbingly told the people that on the previous night Azizul and Habibur
called out her husband from her house and thereafter her husband did not
come back. Thereafter they along with the VDP Secretary, Afjal Hussain
Khanm, Abdul Kasem Master and many people from the market went to
Roumari village by embankment route. While they were proceeding by the
embankment, they noticed on the side of the embankment, a bicycle,
sandal and muffler lying and also noticed blood stain. At that time Azizul
and Habibur came there. Thereafter the VDP Secretary and other people
brought Azizul and Habibur to the Pharmacy of VDP Secretary, Afzal
Hussian Khan. While people asked Azizul and Habibur, they confessed that
after they had murdered Azibur Rahman they buried him at another place.
The VDP Secretary informed the police and then police came there. When
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police asked Azizul and Habibur, they confessed the guilt and they led the
police to the place where they have buried the dead-body. PW 6 along with
many other people also went to the place. The place was ploughed for
sowing jute seeds and is a shore area. Police called Magistrate and after
the Magistrate reached at the place, the police unearthed the spot and
brought out the dead body of Azibur. Police recorded his statement.
66. PW 7, Ikbal Hussain Kabir had deposed that the incident was of 2008.
On the day of incident in the morning at about 6 a.m. while he was coming
from Masjid after offering Namaz, Rumena Khatoon sobbingly told him
that on the previous night Habibur Rahman and Azizul called our her
husband but till morning he has not returned home. At that time other
people were also present at Matkhula bazar where Masjid is located. After
listening to Rumena, when they asked her where her husband was called
out, then she told them that her husband was taken towards the
embankment. People went towards the embankment and noticed one blood
stained shirt, a pair of sandal and a bicycle. Thereafter they went to the
house of Habibur and Azizul and on finding them, they brought both
of them to bazar at the medicine shop of VDP Secretary Faraji. When
Habibur and Azizul were asked about Azibur, they confessed that
they have buried Azibur after committing his murder and Fakaruddin, Abdul
Karim and one another were also with them. Thereafter, they informed
Dhing Police about the incident over phone and police came there. Habibur
and Azizul also confessed about the incident before the police and told that
they would show the spot where the dead body was buried. Police called
the Magistrate and after Magistrate came there, the dead body of Azibur
was dug out from one side of shore. During investigation, police recorded
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his statement.
67. PW 8, Dr. M R Matabbar had deposed that on 15-04-2008 he was on
duty as SMO at the B P Civil Hospital, Nagaon and on that day he
conducted post-mortem examination on the dead body of Azibur
Rahman, male aged about 35 years No. 1 Kandolimari, on 14-04-2008 with
the following findings:-
1. Jugular vessels of the right side of the neck were bisected with
incised wounds of size 1"*1/2"*1/2" on the right side of the neck. 2. 3
other incised cut marks with deep intracranial perforation are found
respectively of size 1"x1/2"x 1/2", 1 1/2"x 1/2x ½ , 1"x 1/2"x ½. Brain
matters were coming out through the incised wounds. Membranes of the
brain were pierced and brain matters were coming out through incised
wounds. The injuries described were ante-mortem in nature.
He had opined that the death is due to shock and haemorrhage as a
result of injury sustained. All the injuries are sufficient to cause the death
of a person. Ext. 3 is the post-mortem examination report and Ext 3(1) is
his signature.
68. PW 9, Anil Bora, the Investigating Officer had deposed that on
14.04.2008, he was the SI of Police at Dhing Police Station. At around 7:55
am, VDP Secretary of Village No. 2 Kandhulimari informed the P.S. over
phone that a person was killed and the dead body was kept buried and
that they detained two persons. He deposed that the then O/C S.K. Dutta
and he along with the staff started off to No. 2 Kandhulimari and he made
Dhing P.S. GD Entry 219 dated 14.04.2008 in that regard. Ext. 4 is the GD
Entry Book and Ext.4(1) is the said GD Entry No. 219 dated 14.04.2008.
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When they arrived at Kandhulimari, Matikhula Bazar, they saw that many
people had gathered there and that two persons were detained. The VDP
Secretary and the Village Headman handed over those two persons to the
police. He deposed that the O/C entrusted him with the investigation of the
matter, he interrogated the accused persons and they said that they had
killed a person named Azibur Rahman and buried his dead body in the field
and that they could show the place. The names of the accused persons
were Habibur and Azizul. When they were taking along the accused duo to
the field, they saw an old hero cycle, a pair of leather sandal and a violet
colour muffler lying near the embankment. Then Rumena Khatun, the wife
of the deceased identified all these things to be of her husband and he
seized those items in presence of the witnesses. Ext. 1 is the seizure list
and Ext. 1(3) is his signature. M. Ext. 1 is a pair of sandal and Mat. Ext. 2
is the muffler. Thereafter, the accused persons showed them the place
where the dead body was buried. He further deposed that Ex.5 is the
statement of Azizul Hoque made before him. Ext. 5(1) is the statement of
Azizul Hoque in such terms that he went with the police and showed them
the place where the dead body was buried. Ext. 6 is the statement of
Habibur Rahman made before him. Ext. 6(1) is the statement of Habibur
Rahman in such terms that he led the police and showed the place where
the dead body was buried.
69. He deposed that thereafter he informed the Magistrate. After the
arrival of Ranveer Bora, the Magistrate and Circle Officer, Dhing Circle, the
dead body was exhumed as shown by the accused persons and later on
inquest was held on the body of the deceased. Ext. 7 is the inquest report.
Ext. 7(1) is the signature of Ranveer Bora, the Circle Officer which he was
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familiar with. He examined the witnesses. Later on he sent the dead body
for post-mortem examination and he prepared a sketch map of the place
where the dead body was recovered. Ext. 8 is the sketch map and Ext.
8(1) is his signature. He stated that he prepared a sketch map of the
place where cycle, sandals, etc were recovered. Ex. 9 is the sketch map
and Ext. 9(1) is his signature.
70. He stated that he brought both the two accused persons to the police
station. Rumena Khatun lodged an ejahar that day itself. On the basis of
the ejahar, Dhing P.S. case no. 61/08 under sections 302/201/34 IPC was
registered and the O/C entrusted him with the investigation. Ext. 2 is the
FIR and Ext. 2(2) is the signature of the O/C Sushil Kr. Dutta which he was
familiar with. Taking the charge of investigation, he questioned the
complainant at the police station. He examined other witnesses also. He
went searching for the other accused persons involved in the case but he
could not find them out. He arrested the accused Habibur Rahman @ Habi
and Azizul Haque and forwarded them to the court. Thereafter, as he was
transferred he handed over the diary to the O/C. He also deposed that the
Sweeper exhumed the dead body at about 1:30. pm. The ejahar was
lodged at about 3:00 pm that day. On the basis of the GD Entry, he visited
the place of occurrence, he did everything, i.e., going to Matikhula Bazaar,
taking the accused persons into custody, preparing the sketch map at the
embankment, seizing the items, exhuming the dead body, holding inquest
on the dead body and sending the dead body for post mortem examination
on the basis of the GD Entry. He did not sent accused persons Habibur and
Azizul to court for getting their confessional statement recorded in
connection with their confession and their assertion that they would be
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able to produce the dead body that day. He did not record statements of
independent witnesses at that time when the accused persons said that
they would show the place where the dead body was buried. He states
that he had sent the dead body to the Court for post-mortem examination
before he returned to the police station. He did not see the bicycle in the
court that day which was seized vide Ext. 1. He did not seize the lamp in
the gleam of which the wife of the deceased recognized the accused
persons. He further states that PW-5, Afzal Hussain Khan did not state to
him that Azibur's dead body was recovered from the jute field at the other
side of the dead channel of the river. PW-6, Abul Kasem Faraji did not state
to him that in the market, Rumena Khatun cried and said that her husband
had not returned home. PW-6 did not state to him that Kasem Master, he
and many others came to village Roumari and that Azizul and Habibur
came near the embankment. PW-7, Ikbal Hussain Kabir did not state to him
that when he was coming out from the Masjid, Rumena cried and said
before the public that in the previous night Habibur and Azizul had called
away her husband. PW-7 did not state to him that after hearing Rumena,
they went to the embankment and found shirt, a pair of sandal and a
bicycle lying there and that thereafter they went to the house of Habibur
and Azizul and having found them there, they brought them to the market.
He further states that Rumena Khatun was present there at the time of the
recovery of the dead body. At 2:50 p.m. they took the accused persons to
the police station. Thereafter, the accused persons were not taken to the
place of occurrence. The time for preparing Ext. 1 is not mentioned in it,
but in case diary it is mentioned as 9:20 a.m. He did not maintain any
other memorandum except the case diary for investigation. He wrote the
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Ext.6 (1) after the recovery of the dead body, thought the case no. is
mentioned in Ext. 1 but the case was not registered till that time.
71. On careful scrutiny of the evidence its transpires that prior to lodging
of the FIR GD entry was made by the O.C. Dhing Police Station on
14.04.2008 at 7:55 AM. On the basis of information over telephone made
by the VDP Secretary No. 2 village that a person was murdered and his
dead body was kept buried and in this connection they had apprehended
two boys. On the basis of the said GD entry police proceeded to
Kandhulimari and started investigation of the case. During the course of
investigation PW-9, stated that he interrogated the apprehended accused
persons and they have stated that they killed Azibur Rahman and buried his
dead body and they could show the place. They found one old hero cycle, a
pair of leather sandal and a violet colour muffler lying near the
embankment. The wife of the deceased identified all these things to be of
her husband and in presence of the witnesses, the materials were seized.
Thereafter, the accused persons showed the place where the dead body
was buried. The disclosure statement of the accused persons namely
Habibur Rahman and Azizul Hoque were recorded thoroughly. The accused
persons made the statement that they led the police and showed the place
where the dead body was buried. Thereafter the Investigating Officer
informed the Magistrate and after arrival of the Magistrate dead body was
exhumed as shown by the accused persons and inquest was made on the
dead body. The IO prepared the sketch map and examined the witnesses.
Thereafter the police registered the FIR lodged by Rumena Khatoon and
registered the case under section 302/201/34 IPC. Police examined other
witnesses and went searching for the other accused persons involved in the
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case but could not find them out. He arrested the accused persons Habibur
and Azizul and forwarded them to the Court. In cross examination, he
reiterated that on the basis of the GD Entry he visited the place of
occurrence i.e., going to Matikhula Bazar, taking the accused persons into
custody, preparing the sketch map at the embankment, seizing the items,
exhuming the dead body, holding the inquest and sending the dead body
for Post Mortem examination.
72. PW 1, had deposed that the complainant Rumena Khatoon who has
filed the written ejahar with the Dhing Police Station on 01-01-2008 for the
death of her husband. On that day at 6 a.m., Rumena Khatoon went to his
house and informed him that the accused persons took her husband to
Roumari village about the matter of earth digging discussion. She informed
that her husband was called out by the accused and he did not return till
morning. She informed him that she had already reported the matter to
other villagers and she requested him to go to her house. Accordingly, he
went there and on the way while he reached the market, he saw that some
villagers caught hold of and cordoned accused persons Habibur Rahman
and Azizul Hoque. When he saw this, he immediately informed Dhing Police
Station over telephone. Then, the O/C of Dhing Police Station came there
and took over the above two persons. When police interrogated them
before the public, they admitted that they had killed the deceased Azibur
Rahman. The above two accused persons made statement before the
Investigating Officer that they had concealed the dead body on the ground
in the neighbouring shore situated at a distance of 1 1/2 kms. away on the
northern side of the house of complainant Rumena Khatoon. After hearing
this statement of the accused, the villagers along with the police and the
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above named two accused persons went to the site where the dead body
was buried and on being shown by the accused the exact spot, the villagers
cordoned the area along with the accused. The police officer told them that
he would inform the Magistrate and they should await till arrival of the
Magistrate. After a while the Magistrate arrived. The place was dug with the
help of accused persons, appellant Habibur and Azizul Hoque. Then the
dead body was dug out from the ground. Ext.1 is the seizure list and
Ext.1(1) is his signature. Thereafter the police and the Magistrate took
away the dead body as well as the accused persons.
73. PW-2 who is the wife of the deceased deposed that she knew all the
accused persons and they are from her village. The occurrence took place
on 14.04.2008. On the day of occurrence at around 6 O'clock in the
afternoon, her husband Azibur was taken away from their house by the
accused persons informing her that they had a discussion regarding earth
cutting towards Roumari. Accordingly, her husband went with the accused
persons. She waited in their house but her husband did not return till
morning. During night hours, some co-villagers came to her house and she
informed them that her husband had not returned. She informed about the
fact to Ajgar Ali. Following morning, she informed the co-villagers, the VDP
and the village head man Nurul Islam PW-1. Therafter, she went to the
police station at around 7-7:30 am.
74. PW 3, had deposed that occurrence took place some 3-4 years ago on
the day of 1st Bohag. After the morning prayer at Masjid he was sitting in a
tea stall and at that time some villagers along with VDP and the Gaonbura
came there and informed him that one Azibur (Deceased) was called on by
the accused last night and since then he has been missing. They also told
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him that some articles like a comforter, a pair of slippers and a bicycle was
lying on the river bank. Then he along with others went there and found
the same. There he saw that the accused persons Azizul and another
Habibur altercating with villagers, when they were asked by the villagers to
find out the deceased. Thereafter both of them were taken to the market
and after interrogation by the villagers and VDP, they confessed before
them that they (Azizul, Habibur, Fakaruddin and Sahed Ali) killed the
deceased and buried the dead body in the Char.
75. PW4 had deposed that the incident took place on 14.04.2008 on the
day of occurrence, he heard from Jahangir that Ajibur had been killed and
two persons were detained by the public at Matkhula Bazar. On getting the
information, he went and saw that Azizul and Habibur were kept detained
in the pharmacy of VDP Secretary Afzal Khan, and saw around 200 people
gathered there. On being asked about the incident Azizul and Habibur said
that both of them along with Abdul Karim, Fakaruddin, Taibur Rahman,
Sahed Ali and some other had killed Ajibur. Both the accused confessed
their guilt. PW- 4 had also deposed that Azizul and Habibur led the police
to the place where Ajibur was kept buried.
76. PW5 is the VDP Secretary, on the basis of whose information, Police
had made GD entry. PW-5 also deposed that Rumena Khaton PW-2 told
him at about 8:00 PM that on the previous night Azizul Hoque and Habibur
called his husband away from home, PW-5 has also deposed that Azizul
and Habibur confessed that they both along with Sahed Ali and
Fakaruddin had killed Azibur and buried his body. Accordingly, he informed
the police about the incident over phone. PW-5 had also reiterated that
the police took the two accused and went to the place where Azibur was
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buried. The accused persons led the police to the place where jute seeds
were sown on the other side of the dead channel of the river and showed
the place where the body of Azibur was buried.
77. PW6 and 7 are the witnesses who had deposed that Azizul Hoque
and Habibur Rahman admitted that they had killed Azibur and buried the
body. They had deposed before the Court that Hajibur and Azizul had
admitted that they had killed Ajibur and buried his body and that
Fakaruddin, Abdul Karim and another person were with them. Habibur
Rahman and Azizul Hoque admitted their guilt and stated that they would
show the place where the dead body was buried.
78. It is clear that the accused persons Habibur Rahman and Azizul
Hoque disclosed before the police and the witnesses mentioned above
that for some days Habibur, Azibur, Fakaruddin, Sahed Ali, Abdul Barek etc
including the accused Azizul were doing earth cutting work at village
Roumari. Fakaruddin, Abdul Rahim, Sahed Ali, Abdul Hekim had old
dispute with Azibur and out of that grudge, on 13.04.2008 the said
persons aasked Habibur Rahman and Azizul Hoque that they would kill
Azibur that very night and that Habibur Rahman and Azizul Hoque had to
call out Azibur from his residence. The other accused persons made a
threat that they would kill them too if they didn't do so. The other accused
persons told that after calling Azibur, they had to take him to the
embankment of village Roumari, and that they would be in hiding and as
soon as they reach near the embankment of village Roumari, the other
accused persons would attack and kill Azibur. After Azibur had died, they
took his dead body to the land of Fakaruddin's brother and buried it there.
When Azibur didn't come back to his house till morning, people searched
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for him and people recovered his bicycle and sandal near the
embankment. When Habibur Rahman and Azizul Hoque were coming
towards the market, people apprehended and questioned them and they
confessed before the public that they killed Azibur and kept his body
buried. Later they led the police and showed the place where the dead
body was kept buried. The people of the village dug out the dead body.
The bicycle, sandal and muffler belongs to deceased lying at the place of
occurrence were recovered.
79. Regarding the appellant not found on the dock on the date on which
the evidence of PW-1 and PW-2 were recorded on 03.04.2014, we in
agreement with the learned Addl. PP, which has come on record in the
evidence that they did not see the appellant Habibur Rahman on the dock
and he was found absconding as he was granted bail on 16.07.2008 on
completion of 90 days. Even after issuance of summon and warrant,
appellant did not appear, the learned Committal Court issued NBWA on
28.07.2015 as in the report of process server, the accused was not found
in his address. On 28.07.2015 PNA was issued against the accused
appellant. On 27.12.2015, appellant was produced, in the meantime vide
order dated 25.10.2012 committal court committed the matter to the
learned Session Judge, Nagaon and as such on 03.04.2014 when the
evidence of PW-1 and PW-2 was taken they did not find appellant on the
dock as he was absconding at that time. Regarding the contention of the
learned counsel for the appellant, that in the light of lamp there is no
possibility to see accused Habibur Rahman and Azizul Hoque by PW-2 at
night, it is noticed that the accused persons are the close relatives being
cousins of the deceased and they used to reside adjacent to the house of
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the informant. Therefore, possible of not recognising the accused persons
in the light of the lamp is unacceptable.
80. Regarding the submission of the learned counsel for appellant that
the accused persons are not the resident of No. 2 Kandhulimari but the
resident of village Roumari, we are in agreement with the learned Addl. PP
that in 313 statement although resident of Habibur Rahman was shown as
Roumari but in the chargesheet dated 31.01.2010, the address of the
Habibur was shown as No. 2 Kandhulimari. Thus it can be understood that
after the occurrence had taken place, Habibur Rahman might have
changed his address. In the chargesheet dated 31.01.2010 the address of
Azizul was shown as No. 2 Kandhulimari and 313 statement also he stated
his address to be No. 2 Kandulimari. Regarding the submission that there
are lapses in the prosecution case as to non-seizing of lamp used by PW2
and not sending the material discovered to FSL, we find that there is lapse
on the partof investigating authority. Regarding TIP, we find that the
accused persons are the resident of same village and are close relatives of
the deceased. PW-2 clearly identified the accused persons Habibur
Rahman and Azizul Hoque while they took her husband away, so there is
no requirement to send the accused persons for test identification parade.
Since the accused persons were known PW1, the holding of a test
identification parade, on the facts of the case, would have been wholly
unnecessary. The accused persons were involved in taking away the
deceased on the previous day of the lodging of the FIR, although motive
is not a prime factor to be taking into account in a case of circumstantial
evidence but if the disclosure statement of accused persons Habibur
Rahman and Azizul Hoque is read, the motive of killing is clearly
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established as there was a dispute between the deceased and accused
Habibur Rahman, Azizul Hoque, Abdul Fakaruddin, Sahed Ali, and Abdul
Hakim.
81. We find that that there is no explanation on behalf of the accused
persons under section 313 Cr.PC statements which has given additional
link to the circumstantial evidence. It would be correct that although
inculpatory part of the disclosure statement made by appellant and Azizul
Hoque would not be admissible but exculpatory part made in the
disclosure statement would be admissible in evidence. We find that the
accused persons had common intention to kill the deceased because of
the dispute.
82. In the case of Mustkeem alias Sirajudeen Vs. State of Rajasthan
reported in (2011) 11 SCC 724, the Hon'ble Supreme Court held that it is
too well settled in law that where the case rests squarely on circumstantial
evidence the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be incompatible with
the innocence of the accused or the guilt of any other person. No doubt,
it is true that conviction can be based solely on circumstantial evidence
but it should be decided on the touchstone of law relating to
circumstantial evidence, which has been well settled by law by this
Court... In a most celebrated case of this Court reported in 1984 (4) SCC
116 Sharad Birdhichand Sarda Vs. State of Maharashtra in para 153, some
cardinal principles regarding the appreciation of circumstantial evidence
have been postulated...Whenever the case is based on circumstantial
evidence following features are required to be complied with. It would be
beneficial to repeat the same salient features once again which are as
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under:-(i) The circumstances from which the conclusion of guilt is to be
drawn must or should be and not merely 'may be' fully established, (ii)
The facts so established should be consistent only with the hypothesis of
the guilt of the accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty, (iii) The
circumstances should be of a conclusive nature and tendency, (iv) They
should exclude every possible hypothesis except the one to be proved,
and (v) There must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the innocence of
the accused and must show that in all human probability the act must
have been done by the accused"..... the doctrine of circumstantial
evidence was once again discussed and summarized in 2008 (3) SCC 210,
Sattatiya @Satish Rajanna Kartalla Vs. State of Maharashtra in the following
terms: "10. ..It is settled law that an offence can be proved not only by
direct evidence but also by circumstantial evidence where there is no
direct evidence. The court can draw an inference of guilt when all the
incriminating facts and circumstances are found to be totally incompatible
with the innocence of the accused. Of course, the circumstance from
which an inference as to the guilt is drawn have to be proved beyond
reasonable doubt and have to be shown to be closely connected with the
principal fact sought to be inferred from those circumstances".
83. In the case of R. Shaji vs. State of Kerala reported in (2013) 14 SCC
266 the Hon'ble Supreme Court has held that it is a settled legal
proposition that the conviction of a person accused of committing an
offence, is generally based solely on evidence that is either oral or
documentary, but in exceptional circumstances, such conviction may also
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be based solely on circumstantial evidence. For this to happen, the
prosecution must establish its case beyond reasonable doubt, and cannot
derive any strength from the weaknesses in the defence put up by the
accused. However, a false defence may be brought to notice, only to lend
assurance to the Court as regards the various links in the chain of
circumstantial evidence, which are in themselves complete. The
circumstances on the basis of which the conclusion of guilt is to be drawn,
must be fully established. The same must be of a conclusive nature, and
must exclude all possible hypothesis except the one to be proved. Facts so
established must be consistent with the hypothesis of the guilt of the
accused, and the chain of evidence must be complete, so as not to leave
any reasonable ground for a conclusion consistent with the innocence of
the accused, and must further show, that in all probability the said offence
must have been committed by the accused.
84. In the case of Bodhraj alias Bodha and Ors v State of Jammu and
Kashmir reported in (2002) 8 SCC 45 the Hon'ble Supreme Court has held
that it has been consistently laid down by this Court that where a case
rests squarely on circumstantial evidence. the inference of guilt can be
justified only when all the incriminating facts and circumstances are found
to be incompatible with the innocence of the accused or the guilt of any
other persons.. The circumstances from which an inference as to the guilt
of the accused is drawn have to be proved beyond reasonable doubt and
have to be shown to be closely connected with the principal fact sought to
be inferred from those circumstances. In Bhagat Ram v. State of Punjab,
AIR (1954) SC 621), it was laid down that where the case depends upon
the conclusion drawn from circumstances the cumulative effect of the
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circumstances must be such as to negative the innocence of the accused
and bring the offences home beyond any reasonable doubt...... There is no
doubt that conviction can be based solely on circumstantial evidence but it
should be tested by the touch-stone of law relating to circumstantial
evidence laid down by the this Court as far back as in 1952. In Hanumant
Govind Nargundkar and Anr. v. State of' Madhya Pradesh, AIR (1952) SC
343, wherein it was observed thus: "It is well to remember that in cases
where the evidence is of a circumstantial nature....the circumstances from
which the conclusion of guilt is to be drawn the first instance be fully
established and all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and they should be such as
to exclude every hypothesis but the one proposed to be proved. In other
words. there must be a chain of evidence so far complete as not to leave
any reasonable ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within all human
probability the act must have been done by the accused.".....A reference
may be made to alter decision in Sharad Birdhichand Sarda v. State of
Maharashtra, AIR (1984) SC 1622. Therein, while dealing with
circumstantial evidence, it has been held that onus was on the
prosecution to prove that the chain is complete and the infirmity of lacuna
in prosecution cannot be cured by false defence or plea. The conditions
precedent in the words of the this Court, before conviction could be based
on circumstantial evidence, must be fully established. They are: (1) the
circumstances from which the conclusion of guilt is to be drawn should be
fully established. The circumstances concerned must or should and not
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may be established, (2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused. that is to say, they should
not be explainable on any other hypothesis except that the accused is
guilty; (3) the circumstances should be of a conclusive nature and
tendency, (4) they should excludee very possible hypothesis except the
one to be proved, and (5) there must be a chain of evidence so compete
as not to leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human probability
the act must have been done by the accused.
85. In the case of Nizam & Anr v. State of Rajasthan reported in (2016) 1
SCC 550, the Hon'ble Supreme Court held that undoubtedly, "last seen
theory" is an important link in the chain of circumstances that would point
towards the guilt of the accused with some certainty. The "last seen
theory" holds the courts to shift the burden of proof to the accused and
the accused to offer a reasonable explanation as to the cause of death of
the deceased. It is well-settled by this Court that it is not prudent to base
the conviction solely on "last seen theory". "Last seen theory" should be
applied taking into consideration the case of the prosecution in its entirety
and keeping in mind the circumstances that precede and follow the point
of being so last seen.
86. In the case of State of Rajasthan V. Kashi Ram reported in (2016) 12
SCC 254 the Hon'ble Supreme Court has held that it is not necessary to
multiply with authorities. The principle is well settled. The provisions
of Section 106 of the Evidence Act itself are unambiguous and categoric in
laying down that when any fact is especially within the knowledge of a
person, the burden of proving that fact is upon him. Thus, if a person is
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last seen with the deceased, he must offer an explanation as to how and
when he parted company. He must furnish an explanation which appears
to the Court to be probable and satisfactory. If he does so he must be
held to have discharged his burden. If he fails to offer an explanation on
the basis of facts within his special knowledge, he fails to discharge the
burden cast upon him by Section 106 of the Evidence Act. In a case
resting on circumstantial evidence if the accused fails to offer a
reasonable explanation in discharge of the burden placed on him, that
itself provides an additional link in the chain of circumstances proved
against him. Section 106 does not shift the burden of proof in a criminal
trial, which is always upon the prosecution. It lays down the rule that
when the accused does not throw any light upon facts which are specially
within his knowledge and which could not support any theory or
hypothesis compatiable with his innocence, the Court can consider his
failure to adduce any explanation, as an additional link which completes
the chain. The principle has been succinctly stated in Re. Naina Mohd.
87. In the case of Shankar V. State of Maharashtra reported in (2023) SCC
Online SC 268 the Hon'ble Supreme Court after consideration of the earlier
cases has held that the five golden principles would constitute the
Panchsheel of the proof of a case based on circumstantial evidence and
conviction could be sustained on the basis of last seen, motive and
recovery of incriminating articles in pursuance of the information given by
the accused if those five golden principles of the proof of a case based on
circumstantial evidence are satisfied.
88. In the case of Ramanand alias Nandlal Bharti V. State of Uttar
Pradesh, reported in (2022) SCC Online 1389 corresponding to AIR Online
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2022 SC 5273, the Hon'ble Supreme Court has held that an extra judicial
confession, if voluntary and true and made in a fit state of mind, can be
relied upon by the Court. The confession will have to be proved like any
other fact. The value of the evidence as to confession, like any other
evidence, depends upon the veracity of the witness to whom it has been
made. The value of the evidence as to the confession depends on the
reliability of the witness who gives the evidence. It is not open to any
Court to start with a presumption that extra judicial confession is a weak
type of evidence. It would depend on the nature of the circumstances, the
time when the confession was made and the credibility of the witnesses
who speak to such a confession. Such a confession can be relied upon
and conviction can be founded thereon if the evidence about the
confession comes from the mouth of witnesses who appear to be
unbiased, not even remotely inimical to the accused, and in respect of
whom nothing is brought out which may tend to indicate that he may
have a motive for attributing an untruthful statement to the accused, the
words spoken to by the witness are clear, unambiguous and unmistakably
convey that the accused is the perpetrator of the crime and nothing is
omitted by the witness which may militate against it. After subjecting the
evidence of the witness to a rigorous test on the touchstone of credibility,
the extra judicial confession can be accepted and can be the basis of a
conviction if it passes the test of credibility.
89. We may profitably refer to the recent judgment of the Hon'ble
Supreme Court in the case of Ram Gopal V. State of Madhya Pradesh
reported in (2023) 5 SCC 534 which held that it cannot be gainsaid that
when the entire case of the prosecution hinges on the circumstantial
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evidence, the entire chain of circumstances has to be completely proved,
which unerringly would lead to the guilt of the accused and none else ......
It may be noted that once the theory of "last seen together" was
established by the prosecution, the accused was expected to offer some
explanation as to when and under what circumstances he had parted the
company of the deceased. It is true that the burden to prove the guilt of
the accused is always on the prosecution, however in view of Section
106 of the Evidence Act, when any fact is within the knowledge of any
person, the burden of proving that fact is upon him. Of course, Section
106 is certainly not intended to relieve the prosecution of its duty to prove
the guilt of the accused, nonetheless it is also equally settled legal
position that if the accused does not throw any light upon the facts which
are proved to be within his special knowledge, in view of Section 106 of
the Evidence Act, such failure on the part of the accused may be used
against the accused as it may provide an additional link in the chain of
circumstances required to be proved against him. In the case based on
circumstantial evidence, furnishing or non- furnishing of the explanation
by the accused would be a very crucial fact, when the theory of "last seen
together" as propounded by the prosecution was proved against
him....... In view of the afore-stated legal position, it is discernible that
though the last seen theory as propounded by the prosecution in a case
based on circumstantial evidence may be a weak kind of evidence by itself
to base conviction solely on such theory, when the said theory is proved
coupled with other circumstances such as the time when the deceased
was last seen with the accused, and the recovery of the corpse being in
very close proximity of time, the accused does owe an explanation
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under Section 106 of the Evidence Act with regard to the circumstances
under which death might have taken place. If the accused offers no
explanation or furnishes a wrong explanation, absconds, motive is
established and some other corroborative evidence in the form of recovery
of weapon etc. forming a chain of circumstances is established, the
conviction could be based on such evidence.
In the case in hand, the entire chain of circumstances has been
proved against the appellant which unerringly led to guilt of the appellant
and none else.
90. From the analysis of the evidence on record in its entirety and the
law enunciated by the Hon'ble Supreme Court, we are of the view that the
prosecution has been able to establish the guilt of the appellant beyond
reasonable doubt.
91. From a careful examination and scrutiny of the testimony of PW-1, 2,
3, 4, 5, 6, 7, 8, and 9 and in the light of law laid down as referred to
above, we are of the view that the evidences of these witnesses which
resulted in the death of the deceased are credible, reliable and
trustworthy and conviction of the appellant by the Court can be based on
the testimony of PW-2 which is corroborated by other evidences which
warrants no interference. We have, therefore, no incertitude in holding
that the evidence led by the prosecution establishes the charges brought
against the appellant Habibur Rahman beyond reasonable doubt.
Therefore, the learned Trial court had rightly convicted him.
92. Consequently, conviction and sentence of the appellant Habibur
Rahman by the judgement and order dated 13.05.2019 passed by the
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Sessions Judge, Nagaon is upheld.
93. Appeal stands dismissed accordingly.
94. We appreciate the able assistance rendered by the learned counsel
for the parties.
95. Send back the LCR.
JUDGE JUDGE
Comparing Assistant
