High Court
Case Details
Crl.A. 87/2013 B E F O R E HON’BLE MR. JUSTICE I A ANSARI HON’BLE DR. (MRS.) JUSTICE I. SHAH JUDGEMENT AND ORDER { IA Ansari, J } These appeals and death references are directed against the judgment and order, dated 07-01-2013, passed, in Sessions Case No. 75 of 2012, by the learned Sessio ns Judge, Karimganj, whereby the present six appellants have been convicted unde r various penal provisions and sentenced to suffer accordingly different sentenc es as mentioned below. (i) By the impugned judgment and order, accused Hafijur Rahman and Salim 2. uddin stand convicted under Section 302 read with Section 34 IPC and each one of them has been sentenced to death besides paying fine of Rs.15,000/-. The accuse d Hifijur Rahman and Salimuddin have also been convicted under Section 365 read with Section 34 IPC and each one of them stands sentenced to undergo rigorous im prisonment for 7 (seven) years and pay fine of Rs. 5,000/- and, in default of pa yment of fine, suffer rigorous imprisonment for a period of 6 (six) months. Thes e two accused have been further convicted under Section 25 (1-B)(a) of the Arms Act, 1959, and sentenced to undergo rigorous imprisonment for 3 (three) years ea ch with fine of Rs. 5,000/- and, in default of payment of fine, undergo rigorous imprisonment for 6 (six) months. (ii) So far as appellant, Hafijur Rahman, is concerned, he has been convicted un der Section 27(1) of the Arms Act,1959, too, and sentenced to pay fine of Rs. 5, 000/- and, in default of payment of fine, suffer rigorous imprisonment for 6 (si x) months. (iii) The accused-appellant, Rajani Talukdar, has been convicted under Section 3 65 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for 7 (seven) years with fine fine of Rs. 5,000/- and, in default of payment of fine, undergo rigorous imprisonment for 6 (six) months. (iv) The accused-appellant, Sultanuddin, has been convicted under Sectio n 365 read with Section 34 IPC and sentenced to undergo rigorous imprisonment fo r 10 (ten) years with fine of Rs. 15,000/- and, in default of payment of fine, u ndergo rigorous imprisonment for 12 (twelve) months. (v) The accused-appellant, Hussain Ahmed, has been convicted under Secti on 365 read with Section 34 IPC and sentenced to undergo rigorous imprisonment f or 7 (seven) years with fine of Rs. 5,000/- and, in default of payment of fine, undergo rigorous imprisonment for a further period of 6 (six) months. (vi) The accused-appellant, Raju Ahmed and Hussain Ahmed, stand convicte d under Section 302 read with Section 34 IPC and they have been sentenced to und ergo imprisonment for life with fine of Rs. 15,000/- and, in default of payment of fine, undergo rigorous imprisonment for a further period of 12 (twelve) month s. 3.
Legal Reasoning
Because of the sentences of death, which have been passed by the learned trial Court, against two of the accused-appellants, the proceedings of the tria l have been submitted, under Section 366 Cr.P.C., to this Court by the learned t rial Court for confirmation of the sentences of death. 4. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: Abrar Ahmed @ Naj (since deceased) was a student of B.Sc 3rd year. On 19 (i) -11-2011, at about 06.30 p.m., he went, on his motor cycle, to Bhangabazar and n ever returned home. On the following day, on 20-11-2011, in the morning, at abou t 07.00 a.m., accused Rajani Talukdar informed the family of Naj that the abando ned motor cycle of Naj was seen lying near a petrol pump. On receiving the infor mation, so given by accused Rajani Talukdar, Tufail Ahmed (PW1), father of Abrar Ahmed @ Naj, lodged an Ejahar, in writing, at Badarpur Police Station, stating therein to the effect that his son, Abrar @ Naj, might have been abducted. In th e Ejahar, so lodged, the informant expressed the opinion that Rajani Talukdar mi ght be involved in the abduction of Naj. Based on the said Ejahar, Badarpur Poli ce Station Case No. 181 of 2011, under Section 365 IPC, was registered. (ii) In course of time, when the villagers questioned Rajani, the latter made an extra-judicial confession to the effect that he had joined a conspiracy, hat ched by accused Salim Uddin and two others to kidnap Naj. By his extra-judicial confession, accused Rajani also disclosed that he (Rajani) had been offered Rs. 2,00,000/- to bring Naj and accused Salim Uddin gave a motorcycle and a bottle o f Corex mixed with sleeping tablets and, accordingly, accused Rajani met Naj and requested Naj to accompany him to Badarpur for purchasing clothes and, thereaft er, they had their dinner in a restaurant and, having consumed Corex mixed with intoxicants, Naj fell down and, then, Salim Uddin, Hafijur Rahman, Rehnauddin, M unna, Kamal Hussain and others came and carried Naj, in a maruti car, towards Ba nga. Based on this statement of accused Rajani, Naj’s motorcycle was recovered, on 20-11-2011 itself, by the police and accused Rajani was taken into custody. (iii) Thereafter, on the same day, late in the evening, Tufail Ahmed (PW1) rec eived a phone call informing him that his son, Naj, had been abducted and if he (Jufail) were to save Naj, he (PW1) shall pay a ransom of Rs. 50,00,000/-. Howev er, upon some bargaining, the miscreants agreed to return Naj on payment of Rs. 12,00,000/-. In order to secure the safe release of his son, Naj, PW1 (Tufuil Ah med) paid a ransom of Rs. 12,00,000/- on 22.11.2011, but Naj was not returned. (iv) On 22-11-2011, the informant, PW1 came, again, to Badarpur Police Statio n and informed the police there that the miscreants had telephoned him and had i nitially demanded Rs. 50,00,000/- for release of his son, Naj, and, upon bargain ing, the miscreants had agreed to release Naj on payment of Rs. 12,00,000/- and, in order to secure safe release of his son, Naj, he (PW1) had paid the amount o f Rs. 12,00,000/- to the miscreants, but despite receipt of the ransom, the vict im was not released. This information was recorded, at Badarpur police station, in the General Diary. (v) During the course of investigation, it came to light that after his abdu ction, Naj had been killed by the miscreants and his dead body had been kept bur ied. While a mobile handset of Naj was recovered from Rajani, the dead body was recovered, on 25-11-2011, at the instance of Manwara Bibi, wife of accused Bulbu l Ali. (vi) Coupled with the above, accused Sultan Uddin was apprehended with the he lp of Meghalaya police and a bag, containing money amounting to Rs. 6,88,500/-, was recovered from his possession. This apart, according to what Sultan Uddin ha d disclosed before the police, the said money was kept with accused Sultan Uddin by his brother, accused Salim Uddin. Sultan Uddin also disclosed that the said money was the ransom amount paid by father of Naj and that the victim had been k illed. Accused Salim Uddin was, then, arrested from Bilonia, which falls on the border of Tripura. Thereafter, an amount of Rs. 97,000/- was recovered from the possession of accused Salim Uddin. (vii) At the instance of accused Bulbul Ali and, on the disclosure made by him , Naj’s trouser (pant) was recovered. Similarly, pistol and ammunition, one knif e, etc., were recovered at the instance of accused Hifjur Rahman. (vii) At a later stage of investigation, Manowara Bibi was made accused by the p olice and was accordingly arrested and interrogated. On finding the dead body of Naj, inquest was held on the said dead body (ix) and the same was also subjected to post mortem examination, which revealed that Naj had died of bullet injury. 5. On completion of investigation, a charge-sheet was laid, under Sections 120B/365/302/201/384 IPC, against as many as 20 accused persons. Out of the twen ty persons, named as accused in the charge sheet, 7 (seven) accused persons were shown as absconders and 13 (thirteen) accused persons faced the trial. 6. During the trial, charges under Section 120B, Section 302 read with Sect ion 34 IPC, Section 201 read with Section 34 IPC and Section 27(3) of the Arms A ct, 1959, were framed against the thirteen accused facing the trial. A separate charge, under Section 387 read with Section 34 IPC, was framed against accused S alim Uddin, Hifjur Rahman, Rehnauddin, Kamal Hussain, Rajani Talukdar and Hussai n Ahmed. Yet another charge was separately framed, under Section 25 (1A) of the Arms Act, 1959, against accused Hifjur. Besides these charges, a charge was furt her framed, under Section 365 read with Section 34 IPC, against accused Salim Ud When the charges, so framed, were explained to the accused, they all ple din, Hifjur Rahman, Rehnauddin, Kamal Hussain and Hussain Ahmed. 7. aded not guilty to their respective charges. In support of their case, prosecution examined as many as 22 (twenty two 8. ) witnesses. During the course of trial, though accused Bulbul Ali, his wife, Ma nowara Bibi, and accused Hussain Ahmed sought to be declared approvers, it was a ccused Bulbul Ali only, who was made an approver, and was accordingly examined a nd cross-examined as PW23. 9. All the accused were, then, examined under Section 313 (1)(b) Cr.P.C. an d, in their examinations aforementioned, all the accused denied that they had co mmitted the offences, which were alleged to have been committed by them, the cas e of the defence being that of denial. No evidence was, however, adduced by the defence. 10. On conclusion of the trial, learned trial Court acquitted 7 (seven) of t he 13 (thirteen) accused persons, who had faced the trial, and, having found 6 ( six) of the accused persons guilty of various offences, as already indicated abo ve, they have been convicted and various sentences have been passed against them accordingly, which have been described above. 11. Though the learned trial Court has acquitted 7 (seven) of the accused pe rsons, neither the State has preferred any appeal nor has any revision or appeal been preferred, or filed, by the informant or the victim’s family. Thus, the ac quittals, so granted, have attained finality so far as 7 (seven) acquitted accus ed persons are concerned. 12. The limited question, therefore, which confronts us, is: Whether the fin dings of guilt, which the learned trial Court has arrived at against the 6 (six) remaining accused persons, are sustainable in the eyes of law and, if so, wheth er the sentences, awarded to them, are just and appropriate or is the conviction of all or any of the accused-appellants calls for interference by this Court an d/or various sentences passed against them deserve to be confirmed. 13.
Legal Reasoning
We have heard Mr. P Kataky, Mrs. RB Bora, Mr. K Lahkar, Ms. M Malik, Ms. B Sharma, Ms. RD Majumdar, Mr. SC Biswas, learned counsel, who have appeared as Amicus Curiae, and Mr. D Das, learned Additional Public Prosecutor, Assam. While considering the present appeal, what needs to be reiterated, at th 14. e very outset, is that as against the acquittal of the 7 (seven) accused persons , neither the State has preferred any appeal nor any appeal has been preferred o r revision had been filed by the informant or the family of the victim. The acqu ittal of the 7 (seven) accused has, therefore, attained finality and, in the pre sent appeal, this Court has to, now, examine not as to whether the acquittal of the said 7(seven) accused persons is or is not sustainable in law, but whether t he conviction of the remaining 6(six) accused persons, under various penal provi sions and the sentences awarded to them, are, in the facts and circumstances of the present case, sustainable. A reference, in this regard, may be made to the c ase of The State of Andhra Pradesh -vs- Thadi Narayana, (AIR 1962 SC 240), where in the relevant observations read as follows: (cid:28)If an appeal is preferred against an order of acquittal by the State and no app eal is filed by the convicted person against his conviction, it is only the orde r of acquittal which falls to be considered by the appellate Court and not the o rder of conviction. Similarly, if an offender of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the appellate Court and not the order of the acquittal. Therefore, the assumption that the wh ole case is before the High Court when it entertains an appeal against convictio n is not well founded and as it cannot be pressed into service in construing the expression (cid:28)alter the finding (cid:29). 15. In order to determine how the learned trial Court arrived at the finding s of guilt under various penal provisions against the accused-appellants, we hav e minutely scrutinized the evidence on record vis-à-vis the impugned judgment an d order. We are anguished to note that through the mouth of PWs 5, 7, 8 and 9, d etailed statements, allegedly made by some of the accused persons, have been rep roduced by the learned trial Court, which seem to suggest that these statements were extra-judicial confessions, but no clear finding has been recorded in this regard. 16. It is rudimentary that the confession, judicial or extra-judicial, has t o pass through the test of voluntariness. If the Court finds that the confession is voluntary, then, also, the Court cannot act upon such a confession, judicial or extra-judicial, unless it also arrives at the conclusion that the confession , which it considered, was not only voluntary, but truthfully made too. If the t win conditions of voluntariness and truthfulness of a confession, judicial or ex tra-judicial, is established, the Court still has the duty to determine the exte nt to which such a confession is admissible, for, a confession, which is involun tary or untrue, cannot be treated as a confession in the eyes of law and, simila rly, a confession, even if voluntary and true, would still not be admissible in evidence if made to the police or if made, while in the police custody, unless s uch a confession is made in the immediate presence of a Magistrate. A voluntaril y and truthfully made confession by an accused, who is in police custody, would be admissible in evidence to the extent that Section 27 of the Evidence Act perm its. Though there is no rule of law that a confession, if found to have been vol untarily and truthfully made, cannot be made basis of conviction, prudence deman ds that there be some corroboration with regard to the catalogue of events, whic h a confession discloses. (See Shankaria vs State of Rajasthan (AIR 1978 SC 1248 ). 17. In the case at hand, it was the duty of the learned trial Court to have, first, determined if the various statements, which had allegedly been made by s ome of the accused persons to the prosecution witnesses, were or were not volunt ary and if these statements were found voluntary, the question, to be still dete rmined by the learned trial Court, was whether the statements were truthfully ma de. This apart, it was also the duty of the learned trial Court to segregate th e admissible portion of the statement made by an accused from the inadmissible p art or portion thereof, for, a statement, whether amounts to confession or not, would be admissible under Section 27 of the Evidence Act if an accused, while ma king the confession, is in the custody of the police officer, provided that only that part of the statement would be admissible, which would directly lead to th e discovery of a fact. 18. In the present case, learned trial Court has proceeded to record the fin dings of guilt without undertaking the exercise, which we have indicated above. Mere reproduction of the evidence given by a witness and placing reliance thereu pon, without indicating as to whether whole of the evidence of the witness or pa rt thereof has been relied upon, is not acceptable in law; more so, when the lea rned trial Court is completely silent as regards the question as to whether the extra-judicial confessions, allegedly made by some of the accused persons, were or were not voluntary or true and, if so, whose confession or which part of the confession was voluntary and true and whether such a confession was, otherwise, admissible in evidence or not. We are disturbed to note that the conclusions, wh ich the learned trial Court has reached, suffer from consideration of both admis sible as well as inadmissible pieces of evidence. 19. As regards the recovery of motorcycle, the recovery of dead body and the recovery of fire-arms, the learned trial Court, as usual, has not indicated as to how far the evidence given, with regard to recovery of the materials aforemen tioned, were admissible if Section 27 Evidence Act had been resorted to. Whethe r the requirements of Section 27 Evidence Act have or have not been fulfilled, t he impugned judgment is wholly silent. 20. Coupled with the above, though the learned trial Court has framed a char ge for offence of criminal conspiracy and has also framed a question for determi nation in this regard, no discernible answer has been provided by the learned tr ial Court. The learned trial Court has also not indicated as to whether the abdu cted boy, Naj, was killed pursuant to criminal conspiracy or not, and if that be so, the question of invoking Section 34 IPC would not have arisen. If Section 3 4 IPC was applicable, then, what offence(s) was or were decided to be committed in furtherance of the common intention is also not discernible from the impugned judgment. 21. The recording of the statements of the accused-appellants, under Section 313 (1)(b)Cr.P.C. is not clear and specific inasmuch very large number of facts have been amalgamated in questioning the accused, while examining them under Se ction 313 (1)(b) Cr.P.C.; whereas the law requires that every piece of incrimina ting evidence, howsoever weak or strong, be put to the person facing trial as an accused and his response shall be sought thereto. If the appellate Court, now, examines the accused-appellants, under Section 313 (1)(b) Cr.P.C., the same woul d cause, in the facts and attending circumstances of the present case, serious m iscarriage of justice. 22. For the infirmities from which suffer the findings of guilt, which the l earned trial Court has arrived at, we are clearly of the view that such findings , which are based on both, admissible as well as inadmissible pieces of evidence , cannot be sustained. A trial necessitates a fair decision and a fair decision includes a fair and just marshaling of evidence. Fair and just marshaling of evi dence is not possible unless the Court keeps its mind disabused from the influen ce of inadmissible piece or pieces of evidence. In the case at hand, the evidence on record is an admixture of admissibl 23. e as well as inadmissible pieces of evidence and unless the trial Court takes in to account the admissible pieces of evidence by keeping excluded, wholly and com pletely, those pieces of evidence, which are inadmissible in law, and, then, poi nts out as to how the guilt or otherwise of an accused-appellant has been reache d, the conviction of the accused-appellant and the sentence passed against his w ould not be sustainable and has to be interfered with. 24. Having considered the entire materials on record, in the light of the im pugned judgment and order, we have no hesitation in concluding, and we do conclu de, that the interference with the conviction of the accused-appellant is, for t he reasons, we have assigned above, imperative and that the case needs to be rem anded to the learned trial Court for its disposal in accordance with law expedit iously and, preferably, within a period of three months from the date of receipt of a copy of this order. 25. We, therefore, set aside the conviction of the six appellants and the se ntences passed against them. We remand the case for its disposal in accordance w ith law bearing in mind what have been indicated above. It is clarified that thi s order of remand shall not mean a de novo trial. The trial Court is hereby dire cted to record the statements of the accused, under Section 313 (1)(b) Cr.PC, in the manner indicated above and dispose of the case in accordance with law. Before parting with these appeals and the reference, arising out of the 26. death sentence, we place it on record that we have consciously refrained ourselv es from commenting on merit or otherwise of the conviction of the accused-appell ants so that the learned trial Court remains completely free to come to its own independent finding after having examined further the accused-appellants under S ection 313 Cr.P.C. 27. During the pendency of the trial, the accused-appellants shall be kept d etained in the present custody and they shall not be allowed to go on bail and, depending upon the conclusion, which the learned trial Court may, eventually, re ach as regards the guilt or otherwise of the accused-appellants, the question of enlarging the accused, on bail, or otherwise, or setting them at liberty, shall be decided. Let the Amicus Curiae be paid a sum of Rs. 5,000/- each for their valuab With the above observations and directions, this appeal shall stand disp 28. le assistance rendered to this Court. 29. osed of. 30. Send back the LCR.