JUDGMENT
[ENTITY] and [ENTITY], JJ.
1. The appellant has been convicted under [SECTION] of the [ACT] (in short the 'Code') by the 2nd Additional Sessions Judge, Purnea, and sentenced to undergo rigorous imprisonment for life.
2. The alleged occurrence took place on 11-4-1979 at about sun set when [ENTITY] had gone to ease himself and to bring his bullocks from the bamboo grove of the appellant. Villagers heard soon thereafter the appellant shouting Mardiya-Mardiya Chor Ko Mardyia (killed the thief). The informant (P.W. 8), [ENTITY], and other villagers went rushing to the bamboo grove and found [ENTITY] in injured condition ; although restless [ENTITY] told them they the appellant had assaulted him. Soon thereafter his voice choked and, although water was offered to him, he died.
3. On the following day at about 1 P. M. the informant along with other witnesses went to Forbesganj police station and lodged information. After completing investigation the police submitted charge-sheet. In the eventual trial the appellant has been convicted and sentenced as above.
4. The prosecution has examined 11 witnesses including the Investigating Officer (P.W. 11), the Doctor who held the postmortem examination (P.W. 10) and the formal witnesses namely P.W. 1, who has proved the first information report (Ext. 1) and P.W. 6 who has proved the inquest report (Ext. 3). Occular evidence in support of the prosecution case has been provided by P.W. 2, [ENTITY]. P.W. 3, [ENTITY], P.W. 4 [ENTITY], P-W. 5 [ENTITY], P.W. 9 [ENTITY] and the informant (P.W. 8). [ENTITY] (P.W. 7), who has been examined as a prosecution witness, however, has not supported the prosecution case and has been allowed to be cross-examined by the prosecutor. The defence has examined only one witness namely [ENTITY] (D.W. 1) and produced a copy of a complaint petition (Ext. A) filed in the court of the Sub-divisional Judicial Magistrate, Araria, by the father of deceased [ENTITY].
5. Five witnesses namely, P.W. 8 the informant, P.W. 3 [ENTITY], P.W. 4 [ENTITY], P.W. 2 [ENTITY] and P.W. 6 [ENTITY] have stated that when they reached after hearing the cry of the appellant that he had killed the thief, they saw [ENTITY] lying in injured condition. They have deposed that [ENTITY] told them that he was injured and assaulted by the appellant. [ENTITY] (P.W. 9), wife of the victim [ENTITY], has also deposed to the said effect. It is, however, on the record that she had not stated before the police in her statement under [SECTION], [ACT] that her husband had told her that the appellant had assaulted him and the informant had said that other witnesses arrived after [ENTITY] (P.W. 9) offered water to her husband, meaning thereby that whatever [ENTITY] stated was heard only by him.
6. Oral evidence, therefore, is to the effect that the victim stated before his death that he had been assaulted by the appellant. Hearsay is inadmissible subject to the exceptions that are available in the specific provision of the [ACT]. One such exception is available in [SECTION] of the [ACT] which says:
Statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be produced without an amount of delay or expense, which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
This provision is wide enough to include in its ambit the statement attributed to [ENTITY], the victim, that he was assaulted by the appellant. It is not necessary to investigate that when he made the statement he was under expectation of death or not as we know for certain that soon after the assault [ENTITY] died. Cause of [ENTITY]'s death has been stated by P.W. 10, Dr. [ENTITY], who has deposed that on 12-4-1979 he was posted at Araria hospital as Civil Assistant Surgeon and on the said date at 3 p. m. he held postmortom examination on the dead body of [ENTITY] in which examination he found antimortem injuries which were grievous in nature and caused by sharp pointed and cutting weapons. He has also deposed that the death had taken place within about 24 hours due to shock and heamorrhage as a result of the antimortem injuries.
7. The informant and other witnesses have deposed that [ENTITY] died soon after water was offered to him by his wife (P.W. 9). It is thus obvious that if in fact [ENTITY] stated as deposed by the witnesses that the appellant had assaulted him, he made statement as to the cause of his death.
8. Still, in our view, it is not possible to place reliance upon the statement of the witnesses who have deposed that [ENTITY] stated in their presence before his death that he had been assaulted by the appellant. P.W. 9, [ENTITY], wife of [ENTITY], has claimed that he stated before his death that the appellant had assaulted him, but she had made no such statement before the police. P.W. 8, the informant, has narrated in some details how after hearing the abouts of the appellant he rushed to the bamboo grove and found [ENTITY] lying in the injured condition and heard him saying that he had been assaulted by the appellant. He has stated in the cross-examination that he was first to reach the place followed by P.W. 9, the victim's wife, and when they reached, [ENTITY] asked for water. He has said that P.W. 9 went to bring water but when she returned with water in a jug [ENTITY] had already died. He has deposed that other witnesses arrived thereafter. This evidence of the informant has thus ruled out any other witnesses hearing the words of the victim that he had been assaulted by the appellant.
9. The same very witnesses have also deposed that they heard the shouts of the appellant who was saying that he had killed the thief. If this statement is accepted as a confessional statement or admission of the fact that the appellant had assaulted [ENTITY], that may provide such extra-judicial confession which, if otherwise not found infirm, may furnish the basis of conviction of the appellant or atleast corroborate the dying declaration of [ENTITY] before the informant that he was assaulted by the appellant.
10. In [PRECEDENT], J. speaking for the Court has said that there is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. He has said after taking into consideration a series of judgments of the Supreme Court in which the evidenciary value of extra-judicial confession was considered.
It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence. But there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about the extra-judicial confession comes from the mouth of witness/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, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. la such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trust-worthy and beyond approach the same can be relied upon and a conviction can be founded thereon.
It has indicated how a court considering extra-judicial confession shall scrutinise the evidence and see before placing reliance upon such extra-judicial confession that it has come from the mouth of witness/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 be may have a motive for attributing an untruthful statement to the accused and (2) to see whether 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 touch- stone of credibility, if it passes the test, the court may accept the extra-judicial confession as the basis for conviction, the same being reliable, trust-worthy and beyond reproach.
11. In the instant case, however, if the words that are attributed to the appellant by P.W. 8 are tested they do not fully convey that the appellant confessed that he had assaulted the victim. All that he is attributed is that he said that he had killed the thief, unless it is accepted that the appellant was the said thief, his words do not suggest that he killed the appellant. It is well settled that statement merely suggesting an inference of committing a crime is not an admission of offence. There has to be a plainary admission of guilt and the statement of facts attributed to must, without any ambiguity, constitute the offence.
12. In [PRECEDENT]., it is said a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.
The view taken by the Privy Council is reiterated by the Supreme Court in [PRECEDENT]., and in [PRECEDENT], in terms when the statement attributed to the appellant does not satisfy the necessary first constituting confession. The statement attributed to the appellant neither admits in terms the offence nor substantially the facts which constitute the offence. The said statement cannot be admission of the fact that the appellant killed victim [ENTITY].
13. We are also rot satisfied that dying declaration aforesaid by [ENTITY] before the informant, on the facts of this case be accepted as the conclusive proof of assault upon [ENTITY] by the appellant. The words that are attributed to the appellant create some doubt to the effect that the appellant might have assaulted [ENTITY] thinking that he was a thief. Although after quite sometime but alleging specifically that the appellant and Ors. constituting an unlawful assembly surrounded [ENTITY] near the bamboo grove at the alleged time of occurrence and variously assaulted him, a petition of complaint was filed by the father of the appellant in the court of the Sub-divisional Judicial Magistrate, Araria, (Ext. A). This contains allegations quite different from the allegations made by P.W. 8 in the Fardbeyan and reiterated in the court. cannot be said that the evidence of P.W. the informant, has no infirmity at all or that there cannot be any doubt as to the manner of occurrence. On the sole testimony of P.W. 8 in which he has stated that the victim named the appellant as his assistant to up-hold appellant's conviction will, in our view, be not proper. The appellant, on the evidence available on the records, in our view, is entitled to benefit of reasonable doubt.
14. In the result this appeal is allowed. The appellant is acquitted of the charges levelled against him. His conviction under [SECTION] of the Code is set aside and he is discharged from the liabilities of his bail bond.