Calcutta High Court (Appellete Side)
Yusuf Baidya @ Ichhup @ Ichha vs State Of West Bengal on 11 February, 2020
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Suvra Ghosh
C.R.A. 25 of 2019
Yusuf Baidya @ Ichhup @ Ichha
-Vs-
State of West Bengal
For the Appellant : Mr. Fazlur Rahaman .. Advocate
Mrs. Nasra Ali Rahaman ... Advocate
For the State : Mr. Madhu Sudan Sur, APP
Mr. Sanjoy Bardhan, Jr. Govt. Adv.
Mr. Manoranjan Mahata .. Advocate
Heard on : 11.02.2020
Judgment on : 11.02.2020
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 28.11.2018
and 29.11.2018 passed by the Additional Sessions Judge, 2nd Court, Barasat,
North 24 Paraganas in Sessions Trial No.03 (9) 2013 arising out of Sessions Case
No. 781 of 2014 convicting the appellant and co-accused Mahasin Ali @ Moychen
Ali having the charge under Section 302/34 of the Indian Penal Code and
sentencing him to suffer rigorous imprisonment for life and to pay fine of
Rs.50,000/- in default to suffer further imprisonment for one year more.
Prosecution case levelled against Mahasin Ali @ Moychen Ali and the
appellant is to the effect that on 29.12.2012 P.W. 4, Reshma Bibi, daughter-in-
law of Mahasin Ali @ Moychen Ali was informed by the latter that 4/5 persons
had dragged away his wife, Saleha Bibi towards the pond and raped her. When
he resisted, they had assaulted him and poured poison into his mouth.
Saleha and Mahasin Ali @ Moychen Ali used to work in the brick field and
on the fateful day Saleha had gone to the brick field and not returned till evening.
Mahasin Ali @ Moychen Ali had gone out to search for his wife and thereafter he
returned in a disturbed condition and narrated the aforesaid facts to P.W.4,
Reshma Bibi. Reshma Bibi immediately contacted her husband, Alfaj Ali, P.W.1.
Upon his return, Mahasin Ali @ Moychen Ali narrated the same facts to Alfaj.
Alfaj went towards the pond but could not find anything. Thereafter with the
assistance of his wife and aunt and being armed with a torch light he found the
shoes of his father in a bamboo grove near the pond. He also noticed that his
mother was lying naked beside the back of the pond and there were marks of
injury on her head and she was bleeding. Both his parents were taken to
Barasat Hospital, where his mother was declared dead.
As per the version given by his father, Mahasin Ali @ Moychen Ali, P.W.1,
Alfaj lodged First Information Report, i.e. Exbt.1. From Barasat Hospital his
father was transferred to R.G. Kar Hospital, where he was admitted till
14.01.2013. At the time of release from hospital, his father confessed to him that he had killed his wife, Saleha with the help of Yusuf, the appellant as she had become a woman with loose morals.
Alfaj confronted the appellant over this issue but the latter threatened him with dire consequences.
In the meantime, the investigation officer P.W.37 seized various articles including blood stained soil, one gamcha stained with blood, one broken spectacle, one full sleeve sweater, one brown coloured jacket with blood stains and one small bottle etc. from the place of occurrence. He also seized a small black coloured sandal, some vomit mixed with soil and ash, one half filled bottle of harpic, one glass bottle of muriatic acid from the veranda of the deceased. He seized one iron made hammer from the pond on the southern side of the place of occurrence. Urethral swab of the victim was taken. Upon suspicion, one Ichha Moral was arrested. Post-mortem was conducted over the dead body of the victim. In the meantime, investigation was transferred to CID, West Bengal and handed over to P.W. 38, second investigating officer. After Mahasin Ali had confessed his guilt to his son, P.W. 2 at the time of his release from hospital, he was arrested and on his showing, the appellant was also arrested. Confession of Mahasin was recorded before a Judicial Magistrate, Exhibit-38.
On the leading statement of the appellant, Exhibit-32, one bermuda pant and jacket containing stains of blood kept inside a nylon packet was seized from his house within the brick-field in the presence of one of the partners of the brick-field, P.W. 12, Abdul Kayem. Forensic report, Exhibit-50, of the articles seized pursuant to the leading statement of the appellant matched with the blood group of the deceased, Saleha.
In conclusion of investigation charge-sheet was filed in the instant case and case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, 2nd Court, Barasat, North 24-Parganas.
Charge was framed under sections 302/34 of the Indian Penal Code against Mahasin Ali and the appellant.
In conclusion of trial, learned trial Judge by judgment and order dated 28.11.2018 and 29.11.2018 convicted and sentenced the appellant, as aforesaid.
We are informed that Mahasin Ali has expired in the correctional home. Appeal has been preferred by the appellant against the aforesaid judgment and order of conviction and sentence.
Mr. Fazlur Rahman, appearing for the appellant argued that there is no legally admissible evidence connecting his client with the murder. Confession of co-accused is not substantive evidence. It can only be used to corroborate other pieces of evidence against the appellant. P.W.12, an independent witness, has not supported the seizure pursuant to the leading statement of the appellant. He has also not identified the seized articles. Hence, the seizure of the articles containing bloodstains of the deceased from the appellant has not been proved beyond doubt. Therefore, the appeal is liable to be allowed. Reliance has been placed on a number of authorities in support of the aforesaid contentions.
Mr. Madhusudan Sur, learned Additional Public Prosecutor along with Mr. Sanjoy Bardhan, learned advocate appearing for the State submitted that the confessional statement of Mahasin Ali is corroborated by other evidence on record. The said confession implicates the appellant as a conspirator to the murder. Moreover, on the leading statement of the appellant bloodstained wearing apparels were recovered from a house occupied by him in the brick- field. P.W. 12 has admitted his signature in the seizure list. In response to question no. 58 during his examination under section 313 Cr.P.C. the appellant admitted that he resided in a house inside the brick-field owned by P.W. 12.
Challenge thrown by the appellant to his conviction may be focussed within a narrow compass. Primary contention of the appellant is that there is no substantive evidence connecting him with the murder of Saleha, wife of co- accused Mahasin Ali. Judicial confession of co-accused Mahasin Ali, Exhibit- 33, has not been seriously challenged.
Some argument has been levelled that Mahasin Ali was suffering from mental ailment and was not in a fit state of mind to make confession. I, however, do not give much credence to such submission. Mahasin Ali confessed the crime before the Magistrate after the statutory warnings had been explained to him. He did not retract his confession during trial. On the other hand, he actively participated in the trial and intelligently answered question posed to him under section 313 Cr.P.C. Although P.W.1 deposed that Mahasin Ali had given up work for the last three years and was treated at Barasat, he admitted no definite diagnosis had been made with regard to his mental state.
Moreover, ample evidence has come on record that Mahasin Ali suspected that his wife Saleha Bibi who was working in the brick-field had befriended other labourers. He became jealous and suffered from mental agony and depression owing to such suspicion. Hence, materials on record do not persuade me to come to a conclusion that Mahasin Ali was in a deranged frame of mind or had made the judicial confession without being a fit frame of mind.
However, I am in agreement with the learned advocate appearing for the appellant that the aforesaid judicial confession even if admissible in law cannot be used as substantive evidence against the appellant. Reliance in this regard may be made to Kashmira Singh Vs. State of Madhya Pradesh, AIR 1952 SC 159. In the said report the Court observed as follows:-
"The confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. It is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
I have applied the aforesaid ratio in appreciating the evidence on record. Accordingly, I have made an endeavour to marshal other incriminating pieces of evidence apart from a judicial confession against the appellant. They are as follows:-
(a) As per P.W. 38, I.O., the appellant was arrested on the showing of Mahasin Ali.
(b) He confessed his guilt to the investigating officer and stated that he would help to recover the bloodstained bermuda and jacket kept in a nylon packet in his room in the brick-field. That portion of his statement was exhibited as Exhibit-33.
(c) Appellant took P.W. 38 to his room and brought out the nylon packet along with bloodstains wearing apparels which was seized under a seizure list, Exhibit-7. Seizure was witnessed by P.W.12, a partner of the brick-field.
(d) Bloodstained wearing apparels were sent for scientific examination and as per report (Exhibit-15) of scientific officer P.W. 31 the bloodstains on the wearing apparels matched the blood group to Saleha Bibi whose group is Group - B. Let me see whether the prosecution has been able to prove the aforesaid facts beyond doubt. Although P.W. 38, second investigating officer, deposed that on the showing of Mahasin Ali the appellant was arrested, I do not find any signature of co-accused Mahasin Ali in the arrest memo of the appellant to corroborate the said fact. Hence, this Court is left with the ipse dixit of the investigating officer that the appellant was arrested on the showing of co-
accused Mahasin Ali.
With regard to the seizure of bloodstained wearing apparels from the house of the appellant as per his leading statement, I find the evidence of P.W. 38 is not corroborated by the independent witness, P.W.12. P.W. 12 merely admitted his signature in the seizure list. He did not state that the bloodstained wearing apparels were recovered on the showing of the appellant as claimed by P.W.38.
Under such circumstances, it has been strenuously argued on behalf of the prosecution that the appellant admitted during his examination under section 313 Cr.P.C. that the house belonged to him. Even if one accepts such contention on behalf of the prosecution, no evidence is forthcoming that the room of the appellant remained in his exclusive possession even after his arrest on 16.01.2013 and at the time of seizure of the articles on the next day.
It is important to note neither his wife nor his family members were found in the said room. On the other hand, it is possible P.W.12, a partner of the brick-field, had access to the room situated within the brickfield from where the incriminating articles were recovered. The said witness had not supported the prosecution case that the articles were recovered on showing of the appellant.
Hence, I am constrained to hold that the prosecution has failed to prove that the bloodstained wearing apparels kept in the nylon bag were recovered on showing of the appellant or the latter had exclusive control over the room where the alleged articles were recovered. In the absence of proof of recovery pursuant to the leading statement of the appellant, as aforesaid, forensic report that the bloodstains on the seized articles matched that of the deceased do not connect the appellant with the alleged crime. Implication of the appellant in the crime, therefore, remains in the zone of suspicion and does not transcend to one beyond reasonable doubt.
In view of the aforesaid flimsy evidence on record which does not securely establish the foundation of the prosecution case against the appellant, corroborative evidence in the form of judicial confession of co- accused is of little consequences.
In the light of the aforesaid discussion, I am inclined to extent the benefit of doubt to the appellant and acquit him of the charge levelled against him.
Conviction and sentence of the appellant are set aside. Appellant shall be released forthwith from custody, if not wanted in any other case, upon executing a bond to the satisfaction of the trial court which shall continue for six months in terms of Section 437A of the Code of Criminal Procedure.
The appeal is, accordingly, allowed.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.)