High Court · 2012

Aggrieved by their conviction and the sentences passed against them, the appellants have preferred this appeal.

3. The case of the prosecution may, in brief, be described thus: Around mid night on 08-09-1997, some persons, masquerading themselves as army personnel , a ppeared at the house of Tarani Kalita (PW1) and asked the inmates of the house t o open the door by claiming that they were army personnel, whereupon the informa nt opened the door and as soon as he opened the door, the persons, who had claim ed themselves to be army personnel, entered into the room, tied up the inmates o f the house, blind folded them by pointing pistol at them and took away cash, or naments, etc. Similar dacoity was also committed in some other houses of the vil lage concerned. A First Information Report was lodged, in this regard, on the fo llowing day, i.e. on 09-09-1997, at Udalguri Police Station. Based on the FIR, s o lodged, Udalguri Police Station Case No. 133 of 1997, under Section 395 IPC, w as registered and, on completion of investigation, police laid charge-sheet acco rdingly.

4. While two of the accused, named in the charge sheet, were discharged, a charge, under Section 395 IPC, was framed against all the four accused-appellant s. To the charge, so framed, the accused-appellants pleaded not guilty.

5. In support of their case, prosecution examined altogether, six witnesses . The accused-appellants were, then, examined under Section 313 Cr.P.C. and in t heir examination aforementioned, they denied that they had committed the offence alleged to have been committed by them, the case of the defence being that of t otal denial. No evidence was, however, adduced by the defence. On conclusion of the trial, the learned trial Court held the accused-appellants guilty of the off ence as indicated above. The learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by the conviction and sentence passed against them, this appeal, as already indicated above, has been preferred by the accused-appellants.

6. nd Mr. D Das, learned Additional Public Prosecutor, Assam. I have heard Mr. RL Yadav, learned counsel for the accused-appellants, a

7. While considering the present appeal, it needs to be noted that the fac t dacoity had taken place in the house of PW1 (Tarani Kalita) and PW2 (Ganesh Ka lita), has not been disputed; what has been in dispute is the complicity of the accused-appellants in the said dacoity.

8. Bearing the above aspect of the appeal in mind, when one considers the e vidence of PW1, his evidence discloses that on the night of the occurrence, when he was sleeping along with other members of his family, some persons came to th e door of the house and called the inmates of the house in Hindi language and, i dentifying themselves as army personnel, they asked the inmates of the house to open the door. The door of the house was accordingly opened by PW1, who was, imm ediately, blind folded and also tied at the point of pistol and, then, the other inmates of the house were also tied up and the persons, who had so entered into the house of PW1, took away valuables including cash and ornaments, whereupon h e lodged a First Information Report.

9. ose persons, who had entered into his house, because he was blindfolded. In no uncertain words, deposed PW1, that he could not identify any of th

10. Broadly in tune with the above evidence of PW1 (Tarani Kalita), PW2 (Gan esh Kalita) has also deposed that when the dacoits entered into his house, they blindfolded him and took away cash, ornaments, etc.

11. he dacoits as he was blindfolded. It is the categorical evidence of PW2, too, that he could not identify t

12. Same as PW1 and PW2, PW3 (Lalit Kalita) has deposed that the dacoits had entered into his house and took away cash ornaments etc, but he could not ident ify the dacoits nor could his son identify the dacoits.

13. From the evidence of PW1, PW2 and PW3, it is clear that in their houses , dacoity did take place, but none of the inmates of the house could identify th e dacoits.

14. The question, therefore, which naturally arises is as to how the present accused-appellants came to be implicated in the occurrence of dacoity. In this regard, the evidence of PW3 has some relevance. His evidence is to the effect th at his co-villagers made some inquiry and came to know that Ramlal Chauhan (i.e. , the accused-appellant No.1), Ram Prasad Chauhan (i.e., the accused-appellant N o. 2) and about five other persons were involved in the dacoity, a Panchayat (i. e., the sitting of the villagers) was accordingly held at Udalguri Primary Schoo l and in the said Panchayat, the accused persons confessed their guilty by admit ting that they had committed the dacoity and that they also confessed that the l ooted articles were kept in the house of some other dacoits. In his cross-examination, PW3 clarified that the Panchayat was convened 15. after about a week of the dacoity. What is, however, extremely important to note , in the evidence of PW3, is that according to him, the dacoits were brought by their co-villagers by tying them up and there were as many as 250 persons presen t in the Panchayat and they all demanded that the accused shall confess.

16. From the above facts, as narrated by PW3, it becomes clear that none of the dacoits came to the place of meeting voluntarily, they did not confess volu ntarily and that their confession, if any, was in consequence of the demand for confession, which had been raised, in the said Panchayat, by as large a number o f people as 250.

17. PW4 (Nabin Kalita) was one of the persons in whose house dacoity took pl ace; but he too accepts that he could not identify the dacoits. This witness, to o, has deposed about the said Panchayat and the fact that the accused had confes sed.

18. However, most vital evidence is of PW5 (Shri Khargeswar Basumatary), who admits that he had presided over the meeting of the Panchayat; what is importan t, in his evidence, to note is that according to his evidence, the persons, who were suspected to be involved in the dacoity, were called, they confessed to hav e committed dacoity and they were beaten up by the people present there. It is a lso, in the cross-examination of PW5, that the persons, who confessed, had been threatened by their co-villagers.

19. What emerges from the discussion of the evidence on record is that at th e time of dacoity, no one, in whose house dacoity was committed, could identify the dacoits. However, subsequent inquiry made by the villagers led to the callin g of the Panchayat and the accused-appellants were tied up and brought to the pl ace of Panchayat, they were threatened, beaten and made to confess that they wer e involved in the dacoity. In the face of these admitted facts, it cannot be hel d that the confessions, made by the accused-appellants, were voluntary in nature . Far from this, the evidence on record eloquently speak that the confessions, w hich the accused-appellants had allegedly made, were wholly involuntary in natur e. A confession, which is involuntary, cannot, in law, be treated as a confessio n at all inasmuch as Section 24 of the Evidence Act makes a confession, made by an accused person as a result of threat or coercion, inducement, irrelevant and inadmissible in law. If the confession, alleged to have been made by the accused -appellants are kept excluded from consideration, as these confessions must be s o kept excluded, there remains really nothing, in the evidence, on record to fas ten the present appellants with the incident of dacoity. The learned trial Court committed serious error in accepting the confessions as voluntary and true. Thi s finding, in the face of the evidence on record, is nothing, but perverse and o ught not to be accepted.

20. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellants under Section 395 IPC and the sentence s passed against them are hereby set aside. All the accused-appellants are held not guilty of the charge framed against them and they are acquitted of the same.

21. The accused appellants are hereby directed to be set at liberty unless t hey are required to be detained in connection with any other case. The bail bond s of the accused-appellants shall stand cancelled and their sureties shall stand discharged.

22. Send back the LCR.