Calcutta High Court (Appellete Side)
Rabi Murmu vs The State Of West Bengal on 29 August, 2025
Author: Rajarshi Bharadwaj
Bench: Rajarshi Bharadwaj
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
CRA 453 of 2013
Rabi Murmu
Vs.
The State of West Bengal.
Before: The Hon'ble Justice Rajarshi Bharadwaj
&
The Hon'ble Justice Apurba Sinha Ray
For the Appellant : Mr. Moinak Bakshi, Adv.
Ms. Niketa Bhattacharjee, Adv.
For the State : Mr. Madhu Sudan Sur, Adv.
Mr. Manoranjan Mahata, Adv.
CAV On : 14.07.2025
Judgment On : 29.08.2025
Apurba Sinha Ray, J.:-
1.
The judgment of conviction and order dated 15.05.2013 and
16.05.2013 passed by the Learned Sessions Judge, Purulia in Sessions Trial
No. 33 of 2012, Sessions Case No. 237 of 2012 was under challenge in this
appeal on the grounds, inter alia that the order of conviction of the appellant
under Section 302/201 of the Indian Penal Code sentencing the appellant to
suffer imprisonment for life and to pay a fine of Rs. 2,000/-, in default to
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suffer further rigorous imprisonment for six months etc. was passed without
considering the materials on record.
2. The learned counsel appearing for the appellant has submitted that
the impugned judgment is not sustainable in law since no confessional
statement of the convict under Section 27 of the Evidence Act was recorded
by the investigation officer and further the places of recovery of weapons
were not proved since there was no eye witness who saw the appellant to kill
his parents. The seizure lists were not proved in accordance with law.
Further the record shows that the police personnel accompanied the
appellant to the places of occurrence. There was no FSL Report in respect of
the seized weapons and other articles. The learned counsel has further
pointed out that prosecution could not establish any motive behind the
murder. The Doctor being PW12 has submitted that the murder of the father
of the appellant could not be done by weapons like “kait’. The offending
weapons were neither shown to the said Doctor during post mortem nor
during trial. Moreover, the offending weapons were not produced at the time
of trial. The FSL Report was not available and as a result the human blood
stains on the weapons as well as on other objects were not proved.
3. The learned counsel has further submitted that Section 27 of the
Evidence Act is not attracted in this case because the confessional
statement was not recorded and as such no facts were discovered under
Section 27 of the said Act that would connect the chains of circumstances
leading to the crime. It is also unclear as to when the convict made such an
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unrecorded confession. The evidence shows that the convict was under
illegal detention, in as much as the arrest memo shows the time of the
arrest was at 5:00 P.M. whereas the alleged unrecorded confessional
statement leading to the discovery was in the morning. Moreover the
sequence narrated by the witnesses shows that the recovery of articles
preceded the confession which is contrary to the legal mandate of Section 27
of the Evidence Act. The recovery was not carried forward to prove the
involvement of the convict in the crime owing to absence of FSL report and
witnesses not proving the seizures. The chain of circumstances remained
unlinked and could not prove the prosecution case. Extra judicial confession
if any, was not made voluntarily and was not recorded. The unrecorded
confession preceded arrest. Weapons were never produced during trial and
no FSL report arrived. The weapons were not shown to the autopsy surgeon
during autopsy or trial to elicit his opinion.
4. The learned counsel has submitted that the chain of circumstances
remains incomplete and as such the prosecution case was not proved
beyond doubt. In support of his contention he has referred following judicial
decisions.
[2023] 5 S.C.R. 601 State of Madhya Pradesh vs. Phool Chand
Rathore
[2024] 11 S.C.R. 1425 Randeep Singh @ Rana & Anr. Vs. State of
Haryana & Ors.
[2025] 2 S.C.R. 388 Ramu Appa Mahapatar vs. The State of
Maharashtra
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5. The learned counsel has also pointed out that as per deposition of the
defacto-complainant that FIR was lodged on 16.05.2012 but the scribe
deposed that he arrived at the place of occurrence at around 10:00 A.M.
There are several material and glaring contradictions in the FIR as to the
place and time of occurrence. Though the FIR indicated the convict’s
presence at the place of occurrence, his subsequent alleged extra judicial
confession of crime to the defacto-complainant has further diluted the
prosecution case since the evidence of the other witnesses show that the
appellant allegedly reported the crime at the police station in the morning
and came to the place of occurrence accompanied by the police. According
to the learned counsel, the appellant was arrested at 5:00 P.M. on the date
of lodging the FIR and further he has been arrested from his in-laws house
and, therefore, such materials on record show that the appellant was not
present at the place of occurrence when the incident took place.
6. The learned counsel for the State has submitted that the prosecution
has examined as many as 14 witnesses in support of the prosecution case
and as per the appellant’s information, which was recorded in GDE No. 571
and marked as Exhibit No. 11, the offending weapons were recovered from
the places of occurrence. All the local witnesses supported the prosecution
case. The appellant not only helped the police to recover the offending
weapons but also identified the dead bodies of his parents. It is the
appellant who informed the police about the commission of offence and
police accompanied him to the place of occurrence on the basis of such
information. This was the appellant who opened the door of his room and
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showed the dead body of his mother and he also brought out the axe from
the room. He made extra judicial confessions before the local people and
also the police officer and such facts were corroborated by the said
witnesses during their examination-in-chief. It is also found from the
materials on record that the appellant led the police officer and others to a
jungle which was 3 km away from his home and identified the dead body of
his father and further he brought out a ‘kait’ from the said jungle. His blood
stained tee-shirt was also handed over to the concerned police officer by the
appellant. The medical evidence has also supported the prosecution case. In
fact there is no denial about the findings of the post mortem doctor during
his cross-examination. According to learned State counsel, the chains of all
the events have been inter-linked and there is no breaking up of any single
chain facilitating the defence case to succeed. The minor discrepancies have
been rightly ignored by the Learned Trial Court. Accordingly, the learned
counsel has submitted that the relevant judgment and order has been
correctly passed.
7. We have considered the rival contentions of the parties. It appears to
us that the instant case is based purely on circumstantial evidence, and
further the prosecution has relied upon some extra judicial confession to
establish the guilt of the appellant. Needless to mention, the extra judicial
confession is considered as a weak piece of evidence. However, that does not
mean that conviction cannot be based on such extra judicial confession.
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8. The learned counsel for the appellant has relied upon several judicial
decisions; such as (2024) 14 SCR 1425 Randeep Singh @ Rana & Anr. Vs.
State of Haryana & Ors., (2025) 2 SCR 388 Ramu Appa Mahapatar Vs.
the State of Maharashtra, (2023) 5 SCR 601 State of Madhya Pradesh
Vs. Phoolchand Rathore in support of his contention.
9. In Ramu Appa Mahapatar (supra) the Hon’ble Apex Court has dealt
with the cases when extra judicial confession cannot be relied upon. In the
said decision the Hon’ble Court has considered the observations of the
Hon’ble Apex Court, made in State of Rajasthan Vs. Raja Ram reported in
(2003) 8 SCC 180 wherein the Hon’ble Apex Court has dealt with the theory
of extra judicial confession. Paragraph 17 is quoted herein below:-
“17. In State of Rajasthan Vs. Raja Ram, this
Court explained the concept of extra-judicial
confession. Confession may be divided into two
classes i.e. judicial and extra-judicial. Judicial
confessions are those which are made before a
magistrate or a court in the course of judicial
proceedings. Extra-judicial confessions are those
which are made by the party elsewhere than
before a magistrate or a court. Extra-judicial
confessions are generally those that are made
by a party before a private individual who may
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be a judicial officer also in his private capacity.
As to extra-judicial confessions, two questions
arise: firstly, whether they are made voluntarily
and secondly, are they true? If the court is of the
opinion that the confession was not made
voluntarily but was a result of an inducement,
threat or promise, it would not be acted upon. It
follows that a confession would be voluntary if it
is made by the accused in a fit state of mind
and if it is not caused by any inducement, threat
or promise having reference to the charge
against him proceeding from a person in
authority. Whether or not the confession was
voluntary would depend upon the facts and
circumstances of each case judged in the light of
Section 24 of the Indian Evidence Act, 1872
(briefly „the Evidence Act‘ hereinafter). The law is
clear that a confession cannot be used against
an accused person unless the court is satisfied
that it was voluntary. At that stage, the question
whether it is true or false does not arise. If the
facts and circumstances surrounding the making
of a confession appear to cast a doubt on the
veracity and voluntariness of the confession, the
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court may refuse to act upon the confession even
if it is admissible in evidence. The question
whether a confession is voluntary or not is
always a question of fact. A free and voluntary
confession is deserving of the highest credit
because it is presumed to flow from the highest
sense of guilt.
17.1. An extra-judicial confession, if voluntary
and true and made in a fit state of mind, can be
relied upon by the court. The confession will
have to be proved like any other fact. The value
of the evidence as to confession like any other
evidence depends upon the reliability of the
witness to whom it is made and who gives the
evidence. Extra-judicial confession can be relied
upon and conviction can be based thereon if the
evidence about the confession comes from a
witness who appears to be unbiased, not even
remotely inimical to the accused, and in respect
of whom nothing is brought out which may tend
to indicate that he may have a motive of
attributing an untruthful statement to the
accused. The words spoken by the witness
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should be clear, unambiguous and unmistakenly
convey that the accused is the perpetrator of the
crime and that nothing is omitted by the witness
which may militate against it. After subjecting
the evidence of the witness to a rigorous test on
the touchstone of credibility, the extra-judicial
confession can be accepted and can be the basis
of a conviction if it passes the test of credibility.
17.2. If the evidence relating to extra-judicial
confession is found credible after being tested on
the touchstone of credibility and acceptability, it
can solely form the basis of conviction. The
requirement of corroboration is a matter of
prudence and not an invariable rule of law.”
10. In the above decision the Hon’ble Apex Court has also referred to
another case, that is Sansar Chand Vs. State of Rajasthan reported in
(2010) 10 SCC 604, wherein the court accepted the admissibility of extra
judicial confession and held that there is no absolute rule that an extra
judicial confession can never be the basis of a conviction although ordinarily
an extra judicial confession should be corroborated by some other material.
It is also held in the case of Ramu Appa Mahapatar (supra) that in a case of
circumstantial evidence the onus lies upon the prosecution to prove the
complete chain of events which shall undoubtedly point towards the guilt of
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the accused. That apart in a case of circumstantial evidence while the
prosecution relies upon an extra judicial confession, the court has to
examine the same with a greater degree of care and caution. An extra
judicial confession if voluntary and true and made in a fit state of mind can
be relied upon by the court. The value of evidence as to extra judicial
confession like any other evidence depends upon the veracity of the witness
to whom it has been made.
11. In paragraph 19.2 the Hon’ble Apex Court in the above case of Ramu
Appa Mahapatar (supra) has referred to the decision of Sahadevan Vs.
State of Tamil Nadu reported in (2012) 6 SCC 403 to point out the
principles and which would make an extra judicial confession an admissible
piece of evidence which can formulate the basis of conviction of an accused.
The said principles are quoted herein below:-
“i) The extra-judicial confession is a weak
evidence by itself. It has to be examined by the
court with greater care and caution.
(ii) It should be made voluntarily and should be
truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater
credibility and evidentiary value if it is
supported by a chain of cogent circumstances
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and is further corroborated by other prosecution
evidence.
(v) For an extra-judicial confession to be the
basis of conviction, it should not suffer from any
material discrepancies and inherent
improbabilities.
(vi) Such a statement essentially has to be
proved like any other fact and in accordance
with law.”
12. In Randeep Singh @ Rana & Anr. (supra) the observations of the
Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra
reported in (1984) 4 SCC 116 have been quoted to point out the five
principles of circumstantial evidence.
“153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused can be
said to be fully established:
(1) The circumstances from which the conclusion
of guilt is to be drawn should be fully
established. It may be noted here that this Court
indicated that the circumstances concerning
“must or should” and not “may be” established.
There is not only a grammatical but a legal
distinction between “may be proved” and “must
be or should be proved” as was held by this
Court in Shivaji Sahabrao Bobade v. State of
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Maharashtra [(1973) 2 SCC 793: 1973 SCC (Cri)
1033: 1973 Crl LJ 1783] where the observations
were made: [SCC para 19, p. 807: SCC (Cri) p.
1047] “Certainly, it is a primary principle that
the accused must be and not merely may be
guilty before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.” (emphasis added)
13. In the said decision of Randeep Singh @ Rana & Anr. (supra) it has
also been held that even a confessional statement before the police which
distinctly relates to the discovery of a fact may be proved under Section 27.
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By quoting K. Chinaswamy Reddy Vs. State of A.P. reported in (1963) 3
SCR 412, the Hon’ble Apex Court in Randeep Singh @ Rana & Anr. (supra)
has explained section 27 of Indian Evidence Act, 1972 in the following
manner:-
“….Thus even a confessional statement before
the police which distinctly relates to the
discovery of a fact may be proved under Section
27. The Judicial Committee had in that case to
consider how much of the information given by
the accused to the police would be admissible
under Section 27 and laid stress on the words
“so much of such information…as relates
distinctly to the fact thereby discovered” in that
connection. It held that the extent of the
information admissible must depend on the
exact nature of the fact discovered to which such
information is required to relate. It was further
pointed out that “the fact discovered embraces
the place from which the object is produced and
the knowledge of the accused as to this, and the
information given must relate distinctly to this
fact”. It was further observed that-“Information as to past users, or the past history
of the object produced is not related to its
discovery in the setting in which it is
discovered.”
This was exemplified further by the Judicial
Committee by observing-
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“Information supplied by a person in custody
that ‘I will produce a knife concealed in the roof
of my house’ leads to the discovery of the fact
that a knife is concealed in the house of the
informant to his knowledge, and if the knife is
proved to have been used in the commission of
the offence, the fact discovered is very relevant.
If however to the statement the words be added
‘with which I stabbed A’, these words are
inadmissible since they do not relate to the
discovery of the knife in the house of the
informant.”
14. By quoting the observation in Subhas Chand Vs. State of Rajasthan
reported in 2002 1 SCC 702, the Hon’ble Apex Court in Randeep Singh @
Rana & Anr. (supra) has reminded us that:-
” …..Though the offence is gruesome and revolts
the human conscience but an accused can be
convicted only on legal evidence and if only a
chain of circumstantial evidence has been so
forged as to rule out the possibility of any other
reasonable hypothesis excepting the guilt of the
accused. In Shankarlal Gyarasilal Dixit case
[(1981) 2 SCC 35: 1981 SCC (Cri) 315: AIR 1981
SC 765] this Court cautioned -“human nature is
too willing, when faced with brutal crimes, to
spin stories out of strong suspicions” (SCC p. 44,
para 33). This Court has held time and again
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that between may be true and must be true
there is a long distance to travel which must be
covered by clear, cogent and unimpeachable
evidence by the prosecution before an accused is
condemned as a convict.”
15. In State of Madhya Pradesh Vs. Phoolchand Rathore (Supra) the
Hon’ble Apex Court has been pleased to mention in page 621 that the
circumstances of extra judicial confession are also required to be proved
beyond doubt.
16. In our case, it has been time and again contended from the part of the
appellant that there is no recovery statement of the appellant under Section
27 of the Indian Evidence Act nor there is any material to show that the
appellant had committed the alleged gruesome offences. It is also alleged
that there was no direct evidence to implicate the present appellant and the
prosecution has heavily relied upon the statements of the witnesses who
were not at all eye witnesses to the alleged incident of murder.
17. Needless to mention, some offences are committed intentionally by the
offender beyond the glare of any witness. The law does not encourage the
real culprit to escape due to non-availability of such eye witnesses; rather
the law has formulated the theory of circumstantial evidence to nab the
actual culprit and to release the innocent people who are not the real
culprits from the clutches of law. In this type of cases where there is no eye
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witness, the law of the land prescribes that if the chains of
circumstances/events are so complete and are so entangled in a manner
pointing to the guilt of the accused only and there cannot be any other
opinion apart from the complicity of the accused in commission of the
offence, in that case the offender or the accused can be convicted only on
the basis of such piece of reliable circumstantial evidence.
18. In this case nobody saw the appellant to commit the murder of his
parents. But the depositions of the witnesses from the locality divulge that
the appellant had confessed before them that he murdered his parents with
some weapons and he has also brought out those weapons from the hide
out. They have also narrated that it was the appellant who opened the door
and led the police personnel and others to the place of murder of his
mother, and thereafter to the second place of occurrence where his father’s
dead body was found. The witnesses have also deposed that the appellant
brought out the offending weapons and seizure lists were prepared by the
concerned police officer.
19. Now the question is whether the series of extra judicial confessions of
the appellant as revealed have been proved beyond the shadow of
reasonable doubt or not.
20. Let us see the materials brought on record by the prosecution to prove
the extra judicial confession beyond shadow of doubt.
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21. The instant case was started with extra judicial confession. On
16.05.2012 the appellant allegedly went to the Bandwan PS and lodged one
GD stating that he killed his mother Nilmoni Murmu with an axe by cutting
her throat and also killed his father by cutting his throat with a small knife
by the side of the road approximately 3 KM away from Burijhor to
Mrigichami behind a bush. He also stated before the concerned police that
he has kept the offending weapons, tee-shirt in his secret hideout. He
wished that police would recover the dead bodies of his parents, the
offending weapons and tee-shirt. He also stated before the police that he
believed that the bad souls in his parents’ bodies were responsible for illness
and death of his wife and for that reason he killed his parents. The said GD
extract has been marked as exhibit – 11.
22. Thereafter, to verify such statements or information, as the case may
be, the Officer-in-charge of Bandwan Police Sation Dipankar Sarkar along
with force went to the places of occurrence accompanied by Rabi Murmu.
The P.W. 1 Amin Tudu being a local villager in his deposition has indicated
that the appellant had also made extra judicial confession before them
admitting that he murdered his parents. The relevant portion of his
deposition is being quoted herein below:-
“In the morning I found that cows and buffaloes
which were tying in ropes in the house of
Sukram were crying. On hearing the same, I
reached there. After some time police came
there. Rabi was there with police. After getting
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down from the Police Van Rabi opened Shickle of
the door from outside. Rabi accompanied by
police entered inside the room and we also
followed them. On entering the room we found
that the mother of Rabi i.e. Nilmani was lying
down on the room having serious cut injury on
her throat. On seeing it we came outside. I
noticed Rabi to come out with an axe. Rabi told
that by that weapon he committed murder of his
mother. Police seized that axe on the strength of
seizure list in which I put my signature on it in
Bengali. It is my signature there on (The
signature of witness in the seizure list dated 16-
05-12 be marked as Ext. 1/1 on proof).Police examined the dead body of mother. It is
my signature in the copy of the inquest report
(The signature of witness Amin Tudu appears in
the inquest report in respect of victim Nilmani
Murmu be marked as Ext.2/1 on proof).Rabi also disclosed that he also committed
murder of his father. Then Rabi, police and
ourselves visited in Birjhore Mouja and found
that Sukram i.e. father of Rabi was lying dead.
Rabi identified his father. Police examined the
dead body and prepared a document.”
23. The P.W. 5 Sri Ajit Murmu has also indicated that the appellant had
made extra judicial confession before him. The relevant portion of his
deposition is quoted herein below:-
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“On the 2nd Day of Jaistha of this Bengali year,
the incident had taken place. On the relevant
date while we were going outside for nature’s
call, I noticed that 2/3 police vans came to our
village with the accused. Robi came down from
the police vehicle. Police also came down from
the vehicle. Thereafter being led by Robi they
entered inside the house of Robi, We also
followed the police personnel and entered inside
the room. On reaching there we found that the
mother of the accused was lying on the floor of
the room having cut marks on the throat. Robi
brought out one Axe and handed over the same
to the police. Robi told that by that Axe he killed
his mother.
Robi also disclosed that he had committed
murder to his father in a jungle.
Police inspected the dead body of the deceased
and prepared a report. Police also seized the
said Axe. This is the carbon copy of the Inquest
Report which bears my signature. I was present
at the time of conducting the inquest over the
dead body of Nilmoni Mumu. (The signature of
the witness in the “Inquest” report of Nilmoni
Murmu is marked as Exhibit2/2).
This is the seizure list prepared by the police in
my presence. It bears my signature. (The
signature of the witness in the seizure list dated
16.05.12 be marked as Ext. 1/2).
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This is another seizure list on the strength of
which the police seized the blood-stained Axe
etc. It is my signature thereon. After recovery of
the Axe I followed the police personnel and Robi
to the jungle and in the jungle Robi identified the
dead body of his father Sukram Murmu. He also
brought out one Kait blood stained genji etc.
which were seized by the police on the strength
of the seizure list.”
24. The P.W. 6 Some Murmu is as follows:-
“I have been living at Burijhore village under
Bandwan P.S. One day in the month of Jaistha
of this Bengali year, the incident had happened.
In one day on seeing the police van I came. I
found Robi Mumu coming down from the police
van. Then Robi being accompanied by police
entered inside his room. We followed them.
There I found the dead body of Nilmoni Murmu,
the mother of the accused. Robi brought out one
Axe and has stated that by it he killed his
mother.
I did not visit the jungle.”
25. The P.W. 7 Baburam Murmu has also deposed that the appellant
confessed before them that he killed his parents. The relevant deposition is
quoted herein below:-
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“On the 2nd day of Jaistha of this Bengali year,
in the morning at about 7/8 a.m. while myself
along with others was sitting in a village path-
way (Kuli). At that time, I noticed 2/3 Police
vans accompanied by a person and Police
personnel came to our village. Rabi came down
from the Police-van and entered the room. We
followed Rabi and the Police personnel. On
reaching inside the house, we found the dead-
body of mother of Rabi. Rabi told that he
lynched his mother by an axe. Rabi also
confessed that he killed his father.I was interrogated by the police.”
26. The P.W. 8 Baren Tudu, PW 9 Bangal Tudu and PW 10 Suklal Tudu
have deposed that Rabi Murmu confessed before them that he killed his
mother by an axe and he also killed his father. Now the question is whether
the extra judicial confession made before the police station and the extra
judicial confession made before the above local witnesses can be accepted as
confession in holding that the accused had committed his parents.
27. Needless to mention, any confession before the police authority is not
acceptable and it is an inadmissible piece of evidence. As the GD allegedly
contained some extra judicial confessions, the same cannot be accepted in
view of Section 25 of the Indian Evidence Act. However, the information
given by the appellant that he intended that police should recover dead
bodies of his parents and also the offending weapons including his wearing
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apparels is significant in view of the fact that Section 27 of Indian Evidence
Act has been regarded as an exception to Sections 25 and 26 of the Indian
Evidence Act. In other words, by virtue of Section 27 the statement of the
accused by which recovery of offending weapons was done appears to be an
admissible piece of evidence. However, all other confessions as made out in
the said GD cannot be treated as admissible evidence under the Indian
Evidence Act.
28. However, we have found that several witnesses such as PW. 1, PW5,
PW6, PW7, PW8, PW9 and PW10 have categorically deposed that the
appellant confessed before them that he committed the murder of his
parents by an axe and a kait. Now the question is whether such alleged
extra judicial confession of the appellant before those witnesses can be
accepted or not? It appears from the record that those witnesses withstood
the cross-examination and they stuck to their deposition on this point. In
other words the said witnesses remained unshaken during their cross-
examination.
29. In spite of such unshaken testimony of the above PWs, it appears that
when such alleged extra-judicial confession was made by the appellant
before the above witnesses, the police was very much present at the spot. It
is also deposed by the said witnesses that they saw Rabi Murmu come down
from a police vehicle and thereafter led the police to the place of the
occurrence. The fact that extra-judicial confessions made allegedly by Rabi
Murmu in presence of the police personnel at the spot was admitted by the
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said witnesses namely P.W. 1 Amin Tudu, P.W. 5 Sri Ajit Murmu, P.W. 6
Some Murmu, P.W. 7 Baburam Murmu, P.W. 8 Baren Tudu, P.W. 9 Bangal
Tudu and P.W. 10 Suklal Tudu.
30. Needless to mention, when confession of a crime by an accused is to
be relied upon, it is the duty of the court to see that such confession is made
voluntarily and without being influenced by police authority or any other
person. It is the usual practice of the Judicial Magistrates recording
confession of the accused under section 164 Cr.P.C. (183 of BNSS) to send
him to the correctional home with a direction to keep the accused in
segregation for reflection of his mind and also for alleviating any persisting
influence on his mind caused at the instance of police authority or any other
person and after being satisfied that the accused is free from influence etc.,
his confessional statement, if any is recorded in chamber of the Judicial
Magistrate. This usual practice is followed by the Judicial Magistrates to
make the confessional statement of the accused more believable and trust-
worthy, but in our case it is found that when the appellant had made such
alleged extra judicial confession before those local witnesses, he was with
the police personnel. In other words when such extra judicial confessions
were made the police were very much present at the spot. Therefore, it
cannot be said that such extra judicial confessions were made by the
appellant in the absence of the police authority. In other words, the vital
question whether or not such extra judicial confession was made by the
appellant free from influence, threat or intimidation cannot be ascertained
since immediately before making such confession he came down from the
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police van and further when he made such alleged confessions the police
was very much present in the vicinity. The basic ingredients for recording
such extra judicial confession were not followed in the course of the
proceedings. As the prosecution has failed to show that the appellant has
made voluntary extra judicial confession before the said witnesses in the
absence of the police personnel and also in the absence of their influence, it
is not prudent or reasonable to rely upon such extra judicial confessions
made by the appellant to the above witnesses in presence of the police
personnel. The Learned Trial Judge did not consider this vital issue properly
in delivering the impugned judgment.
31. In view of the above discussion we find that such extra judicial
confessions which were allegedly made by the appellant to the local
witnesses in presence of the police personnel are unreliable and cannot be a
part of legal evidence.
32. In the facts and circumstances, as discussed above, the investigating
officer could have produced the accused before the Judicial Magistrate for
recording his confessional statement under Section 164 Cr.P.C. but that
was not done by the I.O. for the reasons best known to him. It is also found
that recovery of weapons was done on the basis of information given by the
appellant without recording any discovery statement of the appellant. It is
further found that the weapons were sent to the Forensic Science Laboratory
for chemical examination but no reports of the Forensic Science Laboratory
were received to that effect that the weapons contained human blood. It is a
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fact that the offence was committed in a place which was infested with
Maoist personnel at the relevant point of time. There was a defence taken on
behalf of the appellant that he has been falsely implicated as the police had
failed to get any breakthrough in several cases involving Maoist and for
which the appellant has been made scapegoat. In view of such allegations it
is the duty of the court to see that appellant was not falsely implicated. In
this case, the deposition of a post mortem doctor (P.W.12) is very much
significant who opines that the death of Sukram Murmu, father of the
appellant, could not be caused by using a small knife (kait). This has also
created a serious doubt. Therefore, in this case, there are several lacunae
since neither the recovery statement was recorded nor the weapons, wearing
apparels were sent for FSL Report. Furthermore, the extra judicial
confession on which the prosecution has heavily relied upon was made by
the appellant in presence of the police personnel. In other words, the
prosecution is unable to show that chains of circumstances or the events
are complete which only point to the guilt of the accused.
33. Therefore, considering all materials on record, we are inclined to give
benefit of doubt to the appellant Rabi Murmu. In view of the above
discussion the appeal succeeds. The impugned judgment and order dated
15.05.2013 and 16.05.2013 passed by the Learned Sessions Judge, Purulia
in Sessions Trial No. 33 of 2012, Sessions Case No. 237 of 2012 of
conviction is set aside. The appellant Rabi Murmu is acquitted from the
charges of the case and be set at liberty at once. The accused be released
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from the custody if he is not wanted in any other case. The criminal appeal
being CRA 453 of 2013 is allowed on contest. No order as to costs. The trial
court record be sent to the concerned court immediately.
34. Accordingly, CRA 453 of 2013 is disposed of.
35. Urgent photostat certified copies of this Judgment, if applied for, be
supplied to the parties on compliance of all necessary formalities.
I Agree
(RAJARSHI BHARADWAJ, J.)
(APURBA SINHA RAY, J.)
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