SHIBU TALUKDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Section 482 Cr.P.C. assailing the order dated 09.3.2009 passed by learned Additional Sessions Judge, 2nd Fast Track Court, Berhampur in Sessions serial No. 154 of 2008 under Section 376(2)(g)/302/34 of the Indian Penal Code.

(2.) In course of the evidence of Chandan Das, S.I. of Police the prosecution sought for permission to exhibit the statements of the accused recorded under Section 161 Cr.P.C. The defence immediately filed an application on 14.1.2009 contending, inter alia, that such statement was not admissible. It has been contended that the learned Trial Judge by the impugned order dated 09.3.2009 illegally and without application of judicial mind rejected the petition filed by the defence and held that the whole of the statements recorded under Section 161 Cr.P.C. were admissible in evidence and directed the same to be marked as exhibit 12 and exhibit 13. It has been further contended in the application that the learned Judge did not consider that the purported confessional statements were allegedly made by the petitioners while in police custody and, as such, inadmissible in evidence. It is contended that the learned Judge did not take into consideration the provision of Section 27 of the Indian Evidence Act. Being aggrieved with the order impugned, the accused persons have filed the instant application.

(3.) The learned Counsel appearing for the petitioners submits that the statements under Section 161 Cr.P.C. are inadmissible in evidence except where it leads to the recovery under Section 27 of the Indian Evidence Act. It is contended that the whole of the statements cannot be marked exhibit. It is contended that the learned Trial Judge observed that the point of recovery could not be separated from the rest of the statement and, as such, the whole of the statements should be marked exhibit. The learned Counsel has referred to and cited the decision reported in 2008(2)SCC (Cri) 266 [Alok Nath Dutta and others Vs. State of West Bengal]paragraph 54.