CRL.A(J) 5/2006 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON’BLE MR. JUSTICE MUTUM B.K. SINGH JUDGMENT & ORDER (CAV) (Mutum B.K. Singh, J) Being aggrieved by the impugned Judgment dated 17-11-05, passed by the learned Sessions Judge, Morigaon in Sessions Case No.83/2005, convicting the accused under Section 302 IPC and sentencing him to undergo rigorous impriso nment for life with a fine of Rs. 10,000/- (Rupees ten thousand), in default, to undergo rigorous imprisonment for another 5 (five) years, this appeal has been filed by the accused (appellant herein). 2. Heard Mr. M. Dutta, learned Amicus Curiae appearing for the appe llant and also Mr. Z. Kamar, learned Public Prosecutor appearing for the State. 3. On the basis of a report lodged by one Allaluddin (PW No.1) agai nst the accused and 4 (four) others alleging that on 11-6-05 at about 5:30 AM hi s son namely, Fakrul Islam was hacked with a khukuri on his neck by the accuse d and he died in the courtyard of Abdul Ali, Laharighat PS Case No.38/2005 under Sections 302/34 IPC was registered and set on motion. 4. On 11-6-05, a dao was seized as delivered by PW No.8, Mustt. Haf iza Khatun and also recorded the statement of the other witnesses. On 12-6-05, t he accused was arrested and on 13-6-05, at about 4 PM, the accused was produced before the SDJM(S), Morigaon for recording confessional statement. The confessio nal statement alleged to have been recorded on 14-6-05. On completion of the inv estigation, the police submitted a chargesheet against the accused under Section s 302 & 324 IPC for murder of the deceased and causing hurt to his own wife. The other 4 (four) named accused persons were neither arrested nor forwarded for tr ial. 5. The learned trial Court framed charges under Sections 302 & 324 IPC against the accused persons to which the accused pleaded guilty. However, th e learned trial Court instead of convicting the accused under Section 229 of the Code of Criminal Procedure, proceeded with the trial of the case by examining a s many as 11 prosecution witnesses. The accused was examined under Section 313 o f the Code of Criminal Procedure and he declined to produce any defence witness. 6. The learned trial Court, at the conclusion of the trial, convict ed and sentenced the accused to imprisonment for life with fine relying on the s tatement of the accused recorded under Sections 164 & 313 of the Code of Crimina l Procedure, the alleged confessional statement of Ainul Haque (PW No.7) and th e statement of PW Nos.1, 2, 7, 8 & 10. 7. We have carefully perused the evidence on record and of the view that the conviction of the accused was made by misappreciating the evidence on record and on the basis of inadmissible extraneous materials. 8. P.W. No.1, Md. Allaluddin, the informant and the father of the d eceased was not an eye witness. He deposes that his deceased was found lying wit h cut injury on his neck near his right ear in the courtyard of Abdul when he ru shed thereat on hearing hulla . Some people took the deceased to Hospital but o n the way he expired. Thus, the dead body was taken to police station and he lod ged ejahar with the police. 9. P.W No.2, Ahmod Ali, also stated that he saw the deceased lying on the courtyard of Abdul in the morning. 10. PW No.3, Dr. Nurul Amin is the Medical Officer who examined late Mustt. Monowara Begum. 11. PW No.4, Mustt. Jarina Khatun states that in the morning of the occurrence she had seen the deceased lying in her courtyard and the wife of the accused lying near the door of the house of the accused. On seeing the deceased lying with injury, she created hulla . 12. PW No.5, Mustt. Chand Banu, the mother of the deceased deposes t hat she found her son lying in the courtyard of Abdul and her son died at the sp ot. She had also noticed blood stain from the house of the accused. 13. PW No.6, Md. Khairul Islam is one of the seizure witnesses who d eposes that the police seized a dao on production by PW No.8, sister of the accu sed, in his presence and one Raij. 14. PW NO.7, Ainul Haque, the younger brother of the accused, states that as per the direction of his brother, he went to the house of the deceased and intimated him that his elder brother called him. He returned to his house on hearing hulla and saw the deceased lying in the courtyard of his uncle Abdul Ali. 15. PW No.8, Mustt. Hafiza Khatun, sister of the accused deposes tha t on the day of occurrence at about 5 AM, the deceased was killed by her elder b rother with dao blow. When she went out for reading Quran, both the deceased and accused were talking at their house, mother of the accused was sleeping due to ailment and the wife of the elder brother was at home. While she was going away from her house, she heard hulla and immediately she returned and saw the decea sed lying in the courtyard of her uncle Abdul Ali with severe bleeding. She also saw the sister-in-law lying near her house with a cut wound on her back and han d. Her sister-in-law recovered from the wound but died few days ago due to paral ysis. On the same day she delivered the dao to the police. 16. PW No.9, Mr. Golok Chandra Barua, SDJM, Morigaon, deposes that o n 14-6-05, he recorded the statement of the accused. 17. PW No.10 is the IO, who investigated the case and submitted the chargesheet. 18. PW No.11, Dr. Banshidhar Das is the Medical Officer, who conduct ed the Post Mortem examination on the dead body of the deceased. 19. There is no eye witness in this case. According to PW Nos. 1,2,4 ,5,7,8 & 9, the deceased was found lying with cut injury in the courtyard of Abd ul Ali. According to PW No.1, his son died on the way to Hospital and whereas, P W No.2 & 5, state that the deceased died at the spot. There is no evidence on re cord to prove as to how the deceased was found lying in the courtyard of Abdul A li. It is not the case of the prosecution that the accused assaulted the decease d with dao in the courtyard of his paternal uncle Abdul Ali. No evidence is on r ecord even about the approximate distance of the said courtyard from the house o f the accused. PW No.10, the Investigating Officer stated that he drew a sketch map of the place of occurrence and exhibited as Ext.6. However, no such sketch m ap is on record and the document marked Ext.6 is the Post Mortem Report. Thus, t he testimonies of PW Nos. 1, 2, 5 & 10 are not reliable. 20. PW No.4, the wife of Abdul Ali, appears to be the first person w ho saw the deceased lying in her courtyard and created hulla . She stated that she had not seen who had assaulted the deceased and the wife of the accused. The statement of PW No.8, the sister of the accused that on the day of occurrence a t about 5 AM, her elder brother killed Fakrul with dao blow is quite absurd and unreliable in view of her statement that when she went out for reading Quran, th e deceased and the accused were talking each other at her house and when she ret urned, she found the deceased lying in the courtyard of Abdul Ali. It shows tha t the statement of PW No.8 that her brother killed the deceased is false. It may be pointed out that PW Nos. 7 & 8, the brother and sister of the deceased respe ctively, are minors when their statement were recorded before the Court but no i ntelligent test was conducted by the Court before recording their statement. 21. The learned trial Court, while passing the impugned Judgment has also relied on the statement of PW No.7 alleged to have been recorded under Sec tion 164 of the Code of Criminal Procedure which was neither exhibited nor place d on record. The learned trial Court gave more emphasis in passing the impugned order on the statement of PW Nos. 8 & 10 that Mustt. Monowara Khatun, the deceas ed wife of the accused, stated to them that the accused caused cut injury on the deceased and herself with a dao. This piece of evidence is not acceptable and r eliable as nothing is on record to show that at what place the accused assaulted both of them since both are said to have been found at different places. It sho ws that the learned trial Court passed the impugned Judgment by misappreciating the evidence on record and also basing on extraneous material. 22. We are also unable to accept the allegations that the accused ki lled the deceased by the same dao seized by the police under seizure memo marked Ext.3. According to PW No.7, the dao was kept by him by the side of the door. W hereas, PW No.8 stated that she found the dao under the bed. PW Nos. 6 & 8 state that the dao delivered to the police was stained with blood but the seizure mem o marked Ext.3 did not indicate anything about the blood stain on the said dao. The seizure memo Ext.3 indicates that the dao was seized in presence of PW Nos. 6, 8 and one Abdul Masjid but PW No.6 stated that the same was seized in presenc e of himself, PW No.8 and one Raij. Presuming that the seized dao was tainted wi th blood, the same was not sent for chemical examination in order to connect it with the alleged crime. The Investigating Officer offers no explanation for prev enting him from sending the dao to the Laboratory for chemical examination. Ther e is also no evidence on record to say that the accused was killed by the same d ao seized by the police. 23. Coming to the statement of the accused recorded under Section 31 3 of the Code of Criminal Procedure, it is well settled that the statement under Section 313 of the Code of Criminal Procedure cannot be the sole ground for con victing the accused. It has been fairly settled that examination of the accused under Section 313 of the Code of Criminal Procedure is not an empty formality, t he Court is required to explain any circumstances appearing in the evidence agai nst him so as to enable him to offer an explanation for the presence of such evi dence. In the instant case, the trial Court did not put the evidence relating t o his alleged confessional statement appearing against him as stated by PW No.9, who deposes that the accused was found to be willing to confess his guilt on hi s interrogation. In question No.7, the learned trial Court simply asked the accu sed that Mr. G.C. Barua, SDJM, in his evidence stated that you confessed before him. The accused answered the question in positive. No opportunity was given to the accused to explain as to whether the alleged confessional statement was made voluntarily or under duress/pressure. It cannot be ruled out completely that th e accused might have given the confessional statement under some pressure. It ap pears that the learned trial Court has recorded the statement of the accused und er Section 313 of the Code of Criminal Procedure casually and as a routine matte r. 24. As regards the confessional statement of the accused recorded un der Section 164 of the Code of Criminal Procedure, we are of the view that the a lleged confessional statement is incomplete and cannot be acted upon. 25. Though the confessional statement of the accused was recorded in a forma t prescribed for recording confession under Section 164 of the Code of Criminal Procedure, the mandatory requirements of Section 164 of the Code of Criminal Pro cedure have not been strictly complied with in the instant case. The provisions of Sub-section 2 & 3 of Section 164 of the Code of Criminal Procedure are mandat ory and under the said provisions the Magistrate is required to explain to the a ccused, before recording the confessional statement, that - (1) he (accused) was not bound to make confession; (2) if he does so, it might be used against him; and (3) even if he does not confess his guilt, he would not be sent to the custody o f the police; Besides the above explanations, the Magistrate is also required to ask the accused as to why he desires to confess the guilt. In the absence of any of the above requirements, the confession should be treated as incomplete an d the same cannot be used against the accused. The above requirement has been ma de to satisfy the Magistrate that the confession was voluntarily and fit for giv ing certificate under Sub-section 4 of Section 164 of the Code of Criminal Proce dure. In the instant case, the Magistrate failed to inform the accused that even if, he does not want to confess his guilt, he would not be sent to police custo dy. In Gendra v. State of Assam, 1981 Cril. Law Journal 430, this Court held tha t the confessional statement recorded without informing to the accused as to why he desires to confess and he would not be remanded to police Lock-up even if, h e does not confess the guilt, cannot be relied on. 26. It is in the evidence that at the time of alleged occurrence, th e mother of the accused was present in the house of the accused and also availab le for recording her statement. But the prosecution did not record her statement and produce as prosecution witness. We are of the view that she was an eye witn ess to the alleged occurrence, who could have explained the truth. Non-recording of statement of such an important witness affects the prosecution case adversel y. 27. For the reasons and discussions made hereinabove, we are of the view that the prosecution has failed to prove the charges leveled against the ac cused persons beyond all shadow of doubt. The appeal is allowed. The order of co nviction and sentence dated 17-11-05, is set aside. Consequently, the accused na mely, Rofiqul Islam is set at liberty. 28. LC Records be transmitted back forthwith. 29. The learned Amicus Curiae is entitled to receive a sum of Rs. 50 00/- (Rupees Five thousand) for assisting the Court.