NEPAL GHOSH Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appellants have been convicted under section 302 read with section 34, Indian Penal Code and each of them has been sentenced to imprisonment for life. This appeal directed against the aforesaid order of conviction and sentence arises under the following circumstances.

(2.) In the early hours of 15th March 1980, A.K. Guha, P.W. I, booking clerk of Bira Railway Station, sent a message to Babra Police Station that a dead body had been recovered in a field near the railway station. On receipt of such message, S.I. of Police A.K. Das P.W. 36, then attached to Habra P.S., rushed to Bira Railway Station platform along with force and from there to the field where he found the dead body of a young married girl, which bore stab-wound on the chest, lying in a pool of blood and some articles including a leather suit case, a. blood stained dagger and sarees scattered around. The Investigating Officer, who had already started investigation on the statement of Timir Ghose, held inquest on the dead body, identified to be of Timir's wife Bani and sent it under the escort of constable Biswanath Ghose P.W. 34 to the S.D.M.O., Barasat for postmortem examination. Articles were seized under two seizure lists Exts. 2/1 and 3/1. During the investigation certain facts transpired on the strength of which Timir Ghose was arrested on 17.3.1980. On the following day Timir led the police to the houses of the appellants Nepal and Han at village Tangra wherefrom blood-stained trousers, one H.M.T. wrist watch, some ornaments were recovered and seized under two seizure lists Exts. 4/1 and 5/1 in presence of three witnesses. Both the appellants were placed under arrest and eventually on 21.3.1980, both of them made confessions, which were mostly in culpatory, before the Magistrate M.M. Sen P.W. 29. The confessions so recorded by the Magistrate gave a phillip to the Investigating Officer and a new dimension to the investigation which ended in a charge-sheet, a trial and a conviction and sentence of the appellants and acquittal of the other accused Timir. As the confession aforesaid formed the basis of the conviction at the trial, it becomes necessary in the first instance, to look into the same simultaneously with the supportive facts and approved circumstances, if any, revealed during the trial. Law is well settled that a confession in order that it can be accepted as a relevant fact must be voluntary and true. It however needs close scrutiny and unbiased assessment. We can read the ratio from the cases of Bhula Kiron Koiri v. State, Debendra Prasad v. State of U.P. and Kehar Singh v. State (Delhi Admn.). Reference may also be made to the latest Bench decision of this Court reported in 1991 Cr. L.R. (2) 121, wherein the principles emerging out of the aforesaid decisions were considered. Let us now examine in the first instance whether the confession made by both the accused-appellants was voluntary or not.

(3.) It appears that on 19.3.1980 both the appellants along with Timir were produced before the Magistrate from the police custody and accordingly the Magistrate remanded them to judicial custody with instructions to keep them in segregation. On the following day, that is on 20.3.1980 all the three accused were produced before the Magistrate from judicial custody. Timir declined to confess the other two (appellants) took time for reflection. On 21.3.1980 the appellants were again produced from judicial custody and each of them made a confession one after another which was recorded separately with the separate endorsements by the Magistrate. From the endorsements marked exhibits 8/1 and 9/1 it is evident that due caution was given to the appellants as required under the law. Two questions put by the Magistrate and the answers given by the accused- appellants are suggestive of the voluntary nature of the statements. To the question as to whether the decision to make the confession was the result of any police threat or coercion or any allurement, the answer was in The negative. The next question as to why the accused were making the confession was answered by both of them in this way, we have committed sin, some must confess. At the trial neither the Magistrate P.W. 29 nor the Investigating Officer, P.W. 36 was confronted with any suggestion that the accused were threatened or tortured before the confession. It is only during their examination under section 313, Cr. P.C. that the appellants alleged that the confession was the result of police threat and coercion. Upon consideration of the fact that sufficient time was allowed for reflection and having regard to the situation that the determination of the makers was not shaken even after the co-accused Timir declined, we are satisfied that the confession by the appellants was voluntary and we refuse to take note of the delayed retraction. It is to be ascertained next whether there was any truth in the confession itself. Appellant Nepal confessed that he was a friend of Timir and that he attended his friends marriage. Few days after his marriage Timir met Nepal and complained that the girl who was given in marriage was not the girl shown to and approved of by him earlier before the marriage. Timir divulged that he would kill his wife. Both Monimala, P.W. 15 and Purnima P.W. 16 have deposed that during her visits to her father's place twice after the marriage Bani had complained that she was not loved by her husband.