Md. Raju vs The State Of Bihar
2023 Latest Caselaw 2056 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.969 of 2015

  Arising Out of PS. Case No.-572 Year-2006 Thana- BHAGALPUR KOTWALI District-
                                       Bhagalpur
======================================================

Md. Raju Son of Md. Salahuddin Resident of mohalla- Bhikanpur Tank Lane, Police Station -Ishakchak, District Bhagalpur.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 914 of 2015 Arising Out of PS. Case No.-572 Year-2006 Thana- BHAGALPUR KOTWALI District-

Bhagalpur ====================================================== Md. Sonu son of Late Md. Mansur Resident of Mohalla - Bhikanpur Tank Lane, Police Station - Ishakchak, District - Bhagalpur.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 969 of 2015) For the Appellant/s : Md. Najmul Hoda, Adv.

Ms. Shweta, Adv.

Mr. Pranjal Kumar, Adv.

For the Respondent/s : Ms. S.B. Verma, APP (In CRIMINAL APPEAL (DB) No. 914 of 2015) For the Appellant/s : Md. Najmul Hoda, Adv.

Ms. Shweta, Adv.

Mr. Pranjal Kumar, Adv.

For the Respondent/s : Mr.S.B.Verma, APP ======================================================

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR

ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 02-05-2023 Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

Heard Md. Najmul Hoda for the appellants in

Cr. Appeal (DB) No. 969 of 2015 (Md. Raju) and Cr.

Appeal (DB) No. 914 of 2015 (Md. Sonu). The State has

been represented in both the appeals by Ms. Shashi Bala

Verma, learned Additional Public Prosecutor.

2. Both the appellants have been convicted

under Sections 302, 201 and 34 of the Indian Penal

Code vide judgment and order of conviction dated

28.08.2015 and order of sentence dated 31.08.2015

passed in Sessions Trial No. 245 of 2007 arising out of

Kotwali (Ishakchak) P.S. Case No. 572 of 2006 and

have been sentenced to undergo rigorous imprisonment

for life, to pay a fine of Rs. 10,000/- and in default of

payment of fine to further suffer rigorous imprisonment

for two years for the offence under Sections 302/34 of

the Indian Penal Code and rigorous imprisonment for

two years, a fine of Rs. 2000/- each and in default of

payment of fine, to suffer further simple imprisonment of

two months for the offence under Section 201 of the Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

Indian Penal Code.

3. The case against the appellants rests on

the extra judicial confession having been made by

appellant/Md. Raju and the circumstantial evidence in

the case. Md. Irshad Alam, who is the father of the

deceased and has been examined as PW9 in the case,

had lodged the F.I.R. on 08.09.2006 which was

recorded at his house by the Officer-in-charge of

Ishakchak police station in the district of Bhagalpur in

which he had alleged that when he came back from the

court, where he had been working as a peon, his wife

Rukhsana Khatoon (PW8) informed him that one of his

sons namely Imran Alam aged about 14 years had not

come back from home. On this information, PW9 went

out of his house to look for his son in the neighborhood

but to no avail till about 9 O'clock in the evening. While

the search was still on, PW9 claims to have learnt from

somebody, whose identity has not been disclosed, that

one Md. Raja son of Md. Akil Ansari, a neighbour of Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

PW11, had disclosed that while the son of PW9 had

been sitting with him, appellant/Md. Raju had goaded

them to come out of the house for the purposes of

taking snacks. Both of them were taken by the

appellant/Md. Raju near a railway over-bridge where he

Raju strangulated the deceased by means of a cloth and

left the dead body there. On such information, PW9

along with the villagers and neighbours came to the

house of Akil Ansari and questioned Md. Raja, who also

informed him and others that while he was sitting along

with the deceased at his house, Md. Raju came at about

7 PM and took them near the railway over-bridge.

Suddenly thereafter, Md. Raja informed PW9,

appellant/Md. Raju, by using a Gamcha, tied the neck of

the deceased and started yanking it. The deceased kept

on pleading that he should not be killed but the

appellant/Raju did not pay heed to his pleadings. No

sooner was the deceased rendered unconscious because

of such strangulation, appellant/Raju lifted a stone and Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

threw it on the head of the deceased. Md. Raja claims to

have ran away from the place of occurrence. He was

also attempted to be chased but, he could anyhow come

back to his house.

4. On such information having been collected

from Md. Raja, PW9 along with others reached the

house of appellant/Raju and questioned him. Initially,

Raju feigned ignorance but later, admitted that he had

killed the deceased and that the dead body is still lying

under the railway over-bridge. On hearing such

statement from Raju, the crowd which had collected

there became restive and Raju was assaulted. He was

also tied up to prevent him from running away. Other

persons informed PW9 that a day before i.e. on

07.09.2006, Raju had stolen a goat belonging to one

Md. Khurshid Alam and the deceased had seen him

taking away that goat. Later, Raju left the goat in a field.

Even thereafter, Khurshid Alam was trying to locate as

to who had stolen the goat. Raju suspected that since Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

the deceased had seen him taking away the goat, he

killed him. The PW9 claims to have given all such

information to the Officer-in-charge of the concerned

police station on telephone whereafter the police arrived

and before him, his statement was given which was

converted into FIR.

5. The police after investigation submitted

charge-sheet against the appellants. As against

appellant/Md. Sonu, during the course of investigation, it

was found that he was the associate of Raju in killing the

deceased. Charges were framed against both the

appellants under Sections 302/34 and 201 of the Indian

Penal Code and they were tried.

6. The learned trial court, after examining

twelve witnesses on behalf of the prosecution, including

the doctor and the I.O., convicted both the appellants

under Section 302/34 and 201 of the I.P.C. and

sentenced them to undergo rigorous imprisonment for

life for the offence under Section 302/34 IPC, to pay a Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

fine of Rs. 10,000/- and in default of payment of fine, to

further suffer rigorous imprisonment for two years and

rigorous imprisonment for two years, a fine of Rs.

2000/- each and in default of payment of fine, to further

simple imprisonment of two months for the offence

under Section 201 of the Indian Penal Code.

7. The entire evidence on which the

conviction has been recorded is based on extra judicial

confession made by Md. Raju.

8. It has been argued on behalf of the

appellants that the prosecution has not been able to

prove the case beyond all reasonable doubts; that all the

witnesses except the I.O. and the doctor are closely

associated with the informant and the deceased; the

source of information to PW9 was Md. Raja son of Md.

Akil who has turned hostile and has not supported the

prosecution version and that the dead body was not

recovered on the confession of either of the appellants

for it to be accepted in evidence under Sections 27 of Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

the Evidence Act. On these grounds, it has been urged

that merely because appellant/Raju was coerced by the

villagers and threatened of dire consequences that he

might have made some statements under the belief that

he shall be allowed to go and that statement is the basis

of convicting the appellants. It has also been urged that

there is nothing on record to prove the complicity of the

appellant/Sonu whose name has transpired during the

course of investigation but who has not been named by

Md. Raja, who was the eyewitness to the occurrence.

9. Md. Jasimuddin, Md. Abu Perwez and Md.

Wasad Rajjak, all of whom are related to PW9 and the

deceased, have been examined as PWs. 1, 2 & 3 who

have only reiterated the fact that when they came out of

the house on Hulla, they heard that Raju had killed the

deceased and that the occurrence had taken place

because of an incident of theft of a goat of Khurshid

Alam by one of the appellants Md. Raju.

10. The brother of the deceased has been Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

examined as PW4 who also repeats the same story all

over again. Md. Akil, who is the father of Md. Raja who

had seen the occurrence, has also expressed complete

ignorance about anything else except his knowledge

derived from the talk of the town and neighborhood that

the deceased had been killed by Raju and Sonu. He has

offered no clue to any further event in connection with

his son Md. Raja (PW10) having gone with the deceased

and the appellants near a railway over-bridge where the

two appellants killed the deceased.

11. The evidence of two of the other persons

namely Rukhsana Khatoon, who is the mother of the

deceased and Farooque Azam who have been examined

as PW8 and PW7 respectively are required to be

analyzed. PW8 for the first time has deposed before the

Court that she saw her son (deceased) go along with

Raja and Raju for playing cricket but, when her son did

not return, she asked Farooque Azam (PW7) to look for

him. This has been affirmed by PW7 but, he has stated Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

that while he was looking for the deceased, PW9 also

arrived and during the course of search of the deceased,

both of them learnt that Md. Raja (PW10) had gone

along with the deceased on the asking of appellant/Raju

at railway over-bridge at some distance where the

deceased was killed with the help of Md. Sonu.

12. The prosecution aims to bring the case

within the fold of the appellants having been last seen

with the deceased and no explanation was coming forth

from them regarding his whereabouts; rather an extra

judicial confession of Raju that he strangulated and

killed the deceased with the help of one person, whom

he was reluctant to name before the public. All the

aforenoted witnesses have stated that they came to

learn that Raja disclosed the story first whereafter Raju

was apprehended by the people of the neighborhood and

when he admitted of his having killed the deceased, he

was assaulted and made captive by the persons of the

neighborhood. It was only thereafter that the police was Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

informed P.W.11 arrived at the scene, recorded the First

Information Report and proceeded for recovery of the

dead body at the place indicated by Raja as also by one

of the appellants viz. Md. Raju. The dead body was

recovered but, it appears that inquest report was

prepared the next day i.e. on 08.09.2006. From the

perusal of the inquest report, it further appears that the

same was prepared near the railway over-bridge and

there was a ligature mark on the neck, confirming the

case of strangulation of the deceased before his head

was smashed.

13. The dead body has been identified by all

including PW9.

14. On the same day, autopsy was performed

on the dead body.

15. Dr. Yogesh Prasad Sah (PW12), who

conducted the postmortem, found multiple bruises of

different sizes and shapes below the knee joint. There

were bruises on the face and arms of the deceased as Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

well. One lacerated injury of 2"x 1½" x skull bone deep

was found on the front temporal area of the scalp. The

frontal and the temporal bones were found to have been

fractured. The inside of the brain in the occipital area

was also found to have been smashed, which protruded

out of the scalp. A ligature mark of 7"x ¾" width was

found extending from one side to the other of the neck,

which was continuous. The death was reported to be on

account of asphyxia because of strangulation. The time

assessed of the death was 12 to 24 hours before the

postmortem (postmortem report has been exhibited as

Ext.6).

16. The question for consideration in these

appeals is whether the recovery of the dead body could

be considered to be admissible under Section 27 of the

Indian Evidence Act, 1872.

17. Section 27 of the Evidence Act provides

that when any fact is deposed to as discovered in

consequence of information received from a person Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

accused of any offence, in the custody of a police officer,

so much of such information, whether it amounts to a

confession or not, as relates distinctly to the fact thereby

discovered, could be proved.

18. For acceptance of such recovery under

Section 27 of the Evidence Act, as an evidence which

could be proved, it is necessary that the discovery be

made on the confession of an accused, in the custody of

the police and that such discovery ought to be of some

new fact for it to be admissible.

19. From the evidence on record, it appears

that before the PW11 (Investigating Officer) took Raju

into custody, Md. Raja (PW10) had disclosed that the

dead body was lying under the railway over-bridge. It

was only on the basis of such statement and the extra

judicial confession of appellant/Raju that the dead body

was recovered.

20. In order to appreciate the arguments

advanced on behalf of the appellants, it would be Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

necessary to refer to Sections 24 and 25 of the Evidence

Act of which Section 27 is an exception.

21. Section 24 provides that a confession

made by an accused person is irrelevant in a criminal

proceeding, if the making of the confession appears to

the Court to have been caused by any inducement,

threat or promise, having reference to the charge

against the accused person, proceeding from a person in

authority and 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.

22. Section 25 of the Evidence Act makes it

very clear that no confession made to a police officer

shall be proved as against a person accused of any

offence.

23. As noted above, Section 27 of the Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

Evidence Act which has been referred to the preceding

paragraph, is an exception to Sections 25 and 26. The

rationale of Sections 25 and 26 is that the police may

procure a confession by coercion or threat. The

exception under Section 27 is applicable, but only if the

confessional statement leads to the discovery of some

new fact. So much of such information in the statement

only as it relates distinctly to the facts discovered is

admissible in evidence and not anything else.

24. On a perusal of the records of this case

as also the deposition of the witnesses, it is absolutely

clear that the knowledge about the dead body lying

under the railway over-bridge was procured from PW10,

whose statement was recorded under Section 164 of the

Code of Criminal Procedure. When appellant/Raju was

confronted by the people of the neighborhood, he first

feigned ignorance and thereafter admitted of having

killed the deceased by strangulating and then pounding

his face by means of big stone. He also claims to have Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

been helped in this act by another person, whose name

he did not disclose either before the public or the police.

25. It is apodictic that an extra judicial

confession, if corroborated by other evidence on record

could be taken into consideration to prove the guilt of

the accused but it nonetheless remains a weak piece of

evidence. Thus, the Courts have very consciously

rejected such extra judicial confessions if it is offered as

the sole basis for conviction of the accused and that

also, when such extra judicial confession is not

voluntary. The corroboration of such extra judicial

confession has to be of every circumstance mentioned in

the confession with regard to the participation of the

accused separately and independently.

26. We find from the records that the extra

judicial confession of appellant/Raju does not fit in the

scheme of Section 24 of the I.E.A, 1872, as it was

under a threat of local persons who had, as noted above,

grew very angry and restive on hearing that a 14 years Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

old child had been killed for a trifle. Thus even if such

extra judicial confession is corroborated by other

sources, it remains irrelevant as it is not at all voluntary.

27. There is nothing on record for us to be of

any opinion that any confession was made before the

police officer and therefore, the recovery of the dead

body would not be considered to be on the basis of any

such statement made by the accused/appellant Raju.

28. So far as its applicability (confession by

Md. Raju) to the case of appellant/Sonu is concerned,

Section 30 of the Evidence Act comes into play. Section

30 of the IEA, 1872 provides that when more persons

than one are being tried jointly for the same offence,

and a confession made by one of such persons affecting

himself and some other of such persons is proved, the

Court may take into consideration such confession as

against the other person as well as against the person

who makes such confession.

29. For Section 30 of the Act to apply Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

positively in case of Md. Sonu, it has first to be proved

that any confession was made by a co-accused, which

was inculpatory and it affected co-accused Md. Sonu and

such confession stood proved. Then only it could have

been used against Md. Sonu.

30. We have seen that there is no confession

before the police officer of accused leading to discovery

of new fact. The confession was extra judicial while the

appellant/Md. Raju was not in custody either of the

people or of the police.

31. That apart, a court of law cannot start

with the confession of an accused person. It must begin

with other evidence adduced by the prosecution and only

thereafter it is permissible to turn to the confession, in

order to receive assurance to the conclusion of the guilt

which a judicial mind is about to reach on the said other

evidence. (Refer to Hari Charan Kurmi Vs. The State of

Bihar (AIR 1964 SC 1184)

32. In case of Surinder Kumar Khanna Vs. Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

Intelligence Officer, DRI, (2018) 8 SCC 271 , the Supreme

Court while dealing with a case of Narcotics, Intoxicants

and Liquor under the Narcotic Drugs and Psychotropic

Substances Act, 1985 had an occasion to analyze

Sections 3 and 30 of the IE Act regarding the scope of

confession of co-accused and its admissibility against the

other accused. The Supreme Court referred to Kashmira

Singh Vs State of Madhya Pradesh, AIR 1952 SC 159 in

which the Supreme Court had relied upon a decision of

the Privy Council in Bhuboni Sahu v. R (1949 SCC OnLine

PC 12) wherein the question was as to how far and in

what way the confession of an accused person could be

used against a co-accused. It does not indeed come

within the definition of evidence as contained in Section

3 of the Evidence Act; and is a very weak type of

evidence which cannot be made the foundation of a

conviction and can only be used in support of other

evidence. Such a confession could only lend assurance to

other evidence against a co-accused and no further. Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

33. We have also tried to test the case from

another angle. Could it be a case of circumstantial

evidence in the light of the statement made by PW8, the

mother of the deceased. She had seen the deceased go

along with Md. Raja and appellant Md. Raju in the

afternoon. Thereafter, he was not to be found. This

statement of PW 8 has been confirmed by PW7, who

was asked by PW8 to look for her son. This itself would

not qualify for evidence strong enough to jump to any

conclusion that one of the persons seen last with the

deceased had committed the murder sans the confession

said to have been made by him before the public.

34. One of the most cardinal principles of

criminal jurisprudence is that a case could be said to

have been proved only if there is certain and explicit

evidence. No person can be convicted on any moral

conviction.

35. In Sharad Birdhi Chand Sarda Vs State of

Maharashtra, 1984 AIR SC 1622, it has been very pithily Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

explained that the circumstances from which the

conclusion of guilt is to be drawn should in 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. It has further been clarified

that the circumstances should be of a conclusive nature

and tendency and should be such as to exclude every

hypothesis but the one proposed to be proved. This

means that 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.

36. In the case at hand, except for an extra

judicial confession apparently made by appellant/Md.

Raju without their being any corroboration of any kind is

the sole evidence on which conviction has been recorded.

There is no other material to come to a definite finding Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

that the deceased was killed at the hands of the

appellants; more so when PW10 has made a complete

volte-face and has been declared hostile.

37. Thus, we find that the conviction of the

appellants has been recorded on material which are not

at all admissible in evidence and per force we would be

required to set aside the judgment and order of

conviction of both the appellants and we declare it so.

38. The judgment and order of conviction as

against the appellants are set aside.

39. The appellant Md. Raju is in custody. He

is directed to be released forthwith, if not wanted in any

other case.

40. The appellant/Md. Sonu is on bail. He is

discharged of his liabilities of his bail bonds.

41. The copy of the judgment be immediately

communicated to the Superintendent of Central Jail,

Bhagalpur for immediate release of the appellant/Md.

Raju.

Patna High Court CR. APP (DB) No.969 of 2015 dt.02-05-2023

42. Both the appeals stand allowed and

disposed of accordingly.

(Ashutosh Kumar, J)

( Harish Kumar, J) rishi/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          05.05.2023
Transmission Date