CRL.A(J) 4/2004 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE B K SHARMA JUDGMENT & ORDER (oral) Ranjan Gogoi, J. The accused/appellant, who has been convicted under Section 302, IPC and sentenced to undergo rigorous imprisonment for life, has filed this appeal from Jail to challenge the judgment and order dated 2.12.2003 passed by the learned Adhoc Additional Addl. District & Sessions Judge, Nagaon in Sessions Case No.60( N) 99. 2. The short case of the prosecution is that PW 4, Estonish Tirki, lodged a F.I.R. in the Salona Police Outpost stating that at about 6.00 P.M . on 21.1.98 the accused/appellant had inflicted severe injuries on his father one Thomas Ek ka on the head with an axe. In the F.I.R., which was filed on the date of the oc currence, it was also mentioned that the injured was initially taken to a dispen sary and thereafter to the Nanoi Tea Estate Hospital from where he was referred to the Nagaon Civil Hospital. However the injured died at about 8.00 A.M. of the following day i.e. 22.1.98. 3. On the basis of the aforesaid F.I.R. lodged G.D. Entry No.362 dated 22.1 .98 was recorded in the General Diary of the Police Outpost and the F.I.R. was s ent to Samaguri Police Station. On the basis of the F.I.R. filed Samaguri P.S. C ase No.12/1998 under Sections 326/302, IPC was registered. PW 9, Sri B. N. Kali ta, was entrusted with the investigation of the case in the course of which the police party visited the place of occurrence; prepared a sketch map thereof; hel d inquest on the dead body which was sent for post mortem examination. On receip t of the post mortem report and on completion of investigation charge-sheet was submitted against the accused under Sections 326/302, I.P.C. The offence under Section 302, IPC, being exclusively triable by the Court of Sessions the learned Judicial Magistrate First Class, Koliabar, by order dated 8.3.99, committed the case for trial to the Court of Sessions at Nagaon. In the trial Court separate charge under Sections 326/302, IPC were framed against the accused/appellant to which he pleaded not guilty. Thereafter the trial commenced in the course of whi ch nine witnesses were examined by the prosecution. No defence evidence was led. However, the statement of the accused/appellant was recorded under Section 313, Cr.P.C. At the conclusion of the trial the accused/appellant has been convicte d under Section 302, I.P.C. and has been sentenced to undergo rigorous imprisonm ent for life and to pay a fine of Rs.1000/-, in default, to suffer rigorous impr isonment for six months more. Consequently, this appeal has been filed from jail . 4. It will be useful to briefly notice, at this stage, the core of the evid ence tendered by the prosecution witnesses examined in the case. PW 1, Dr. Krishna Prasad Goswami, who, at the relevant point of time, wa s serving as the Sub-Divisional Medical and Health Officer in the Nagaon Civil H ospital, performed the post mortem examination of the deceased Thomas Ekka on 22 .1.98. According to PW 1 he had found the following injuries on the deceased. 1. Lacerated injury over the frontal bone measuring 3 x 2 x 1 . 2. Lacerated injury over the left ear measuring 2 x 1 x 1 . 3. Multiple fracture of frontal bone. 4. Fracture of left parietal bone. 5. Haemorrhage in both the cerebral haemorsphere. 5. PW 2, Sri Tankeswar Bhuyan, was working as a pharmacist in the old Salon a Dispensary. According to this witness, on 21.1.98 the deceased was brought to the diepensary on a handcart by his son i.e. the accused/appellant and two other persons. According to this witness, the deceased was administered first aid and referred to the T.E. Hospital. PW 2 has specifically deposed that he was told b y the accused/appellant that it is the accused/appellant who had given a blow wi th a stick/lathi to the deceased. 6. The evidence of PWs 3 and 4 will not be very material as the said witnes ses did not support the prosecution case. In fact, PW 4 was declared hostile. 7. PW 5, Smti. Swarna Tanti, was at the relevant point of time working as a nurse in the Salona Dispensary. According to this witness, when she had enquire d from the accused/ appellant she was informed by him that it is he who had give n a blow to the deceased with a stick. 8. PW 6, Farbion Tirkey, in his evidence had stated that on coming to know of the incident he came to the house of the accused and finding that the decease d Thomas Ekka critically injured he along with others had taken him to the tea e state hospital. PW 6 had deposed that on being asked by the doctor in the hospit al the accused/appellant admitted to have injured his father. However, in cross- examination this witness has contradicted himself by saying that the accused had not admitted before the doctor to have injured his father. 9. PW 7, Sonaram Bhumij, had deposed that two days after the incident when police had asked the accused as to how the incident had taken place the accused admitted to have hit his father with an axe which was produced before the police by the accused from the granary of his house. 10. PW 8, Sri Egesius Kerketta, had deposed that on coming to know of the in cident he went to the house of the deceased and found him bleeding from the head . According to this witness, at that time the accused was in the courtyard. Ther eafter, according to this witness, he along with others had taken the deceased t o the tea estate hospital in a push cart. PW 8 had deposed that in the hospital when the doctor had asked the accused as to how the incident had occurred the ac cused told the doctor that he had hit the deceased with a wooden lathi. 11. PW 9, Sri B. N. Kalita, is the investigating officer of the case who had deposed with regard to the details of the different steps in the course of the investigation undertaken by him. 12. Sri Talukdar, learned Amicus Curiae, has pointed out that the conviction of the accused/appellant recorded by the learned trial Court is on the basis of the confession allegedly made by the accused/appellant before PWs 2 and 5. Lear ned Amicus Curiae has submitted that the aforesaid extra judicial confessions ar e not free from doubt and/or ambiguity inasmuch as the evidence of PWs 6, 7 and 8 is clearly inconsistent with the version narrated by PWs 2 and 5. The learned Amicus Curiae has further pointed out that the entire prosecution case has been sought to be built on the basis that the alleged weapon of assault is an axe and in fact the medical evidence tendered by PW 1 clearly indicates that the injuri es found on the deceased were caused by an axe. Learned Amicus Curiae has, there fore, pointed out that the aforesaid part of the prosecution case is inconsisten t with the evidence of PWs 2 and 5 inasmuch as the said witnesses had deposed th at the assault committed was not a wooden stick/lathi. It is, therefore, argued that the extra judicial confession in the present case cannot reasonably furnish a sound and secure basis to uphold the conviction of the accused/ appellant. 13. On the other hand, Sri Z. Kamar, learned Public Prosecutor, Assam, has s ubmitted that the evidence of PWs 2 and 5 clearly proves and establishes a stron g incriminating circumstance against the accused/appellant i.e. that the accused had admitted to have assaulted the deceased on the head with a lathi. The learn ed Public Prosecutor has submitted that an extra judicial confession can furnish the sole basis of conviction. On the said basis, according to the learned Publi c Prosecutor, the conviction recorded by the learned trial Court has been rightl y made and will not require any interference. In this regard, the learned Public Prosecutor has placed before the Court a decision of the Apex Court in State of U.P. vs. M. K. Anthony, reported in AIR 1985 SC 48. 14. We have considered the submissions advanced by the learned counsels for the contesting parties. We have also perused the evidence and materials on recor d as well as the judgment passed by the learned trial Court. On the ratio of the law laid down by the Apex Court in M. K. Anthony (supra) there can be no manner of doubt that an extra judicial confession can form the sole basis of the convi ction of an accused. However, before the Court is to act on the basis of an extr a judicial confession to determine the culpability of the accused it is the duty of the Court to subject the extra-judicial confession to a rigorous test on the touchstone of its credibility and only if the said test is successfully met the extra judicial confession should be accepted. In the present case the extra jud icial confession made by the accused/ appellant before PWs 2 and 5 is to the eff ect that it is the accused/appellant who had hit the deceased on the head with a lathi. The evidence of PWs 6 and 7 does not corroborate, in any manner, the sai d extra judicial confession inasmuch as PW 6 had deposed with regard to the maki ng of such confession by the accused/appellant before the doctor in the tea esta te hospital, whereas PWs 2 and 5 were the pharmacist and the nurse working in th e Salona Dispensary. The doctor of the tea estate hospital before whom the accus ed/appellant allegedly made a confession, as deposed to by PW 6, had not been ex amined by the prosecution. Insofar as PW 7 is concerned, the alleged confession of the accused is to the police and even if the latter part of it is to be held to be admissible by virtue of the provisions contained in Section 27 of the Evid ence Act what has to be noticed is that according to PW 7 the confession made by the accused was with regard to use of an axe as the weapon of assault which sta nds out in sharp contradiction to the evidence of PWs 2 and 5. 15. The recovery of the alleged weapon on which the prosecution relies upon is of an axe. The evidence tendered by PW 1 in the present case is to the effect that in the opinion of the said witness the injuries found on the deceased may have been caused by a weapon like an axe. In such a situation it is difficult to visualize as to how the extra judicial confession alleged to have been made by the accused to PWs 2 and 5 can form the basis of the conviction of the accused/ appellant inasmuch as in the said extra judicial confession the accused/appellan t is alleged to have ascribed the assault committed by him to a lathi. In this r egard, we may observe that apart from the extra judicial confession the prosecut ion in the present case had not established any other incriminating circumstance against the accused/appellant which would require our consideration. 16. The inevitable result of the discussions that have preceded would cast s erious doubts in the mind of any reasonable person as to the culpability of the accused/appellant. We are, therefore, inclined to hold that the accused/ appella nt should be entitled to our reasonable doubts in the matter. We, therefore, all ow this appeal, set aside the conviction of the accused/appellant as recorded by the learned trial Court and the sentence imposed and acquit him on the benefit of doubt. We also direct that the accused/appellant be released from prison fort hwith. 17. We record our appreciation of the services rendered by Sri Talukdar, lea rned Amicus Curiae and direct the State of Assam to pay two days hearing fee to Sri Talukdar at the rate of Rs.2,500/- per diem. 18. Send down the L.C.R.