AKMAT ALI Vs. THE STATE OF TRIPURA

JUDGEMENT

(1.) THIS Is an appeal by Akmat Ali of village Badarpur in Bast Pakistan under Section 420, Criminal P. C., who was convicted by the Sessions Judge, Tripura under Section 395, Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 500. His co -accused Sultan Ahamad of village Kalikapur in East Pakistan who has also preferred a similar appeal (Jail Appeal No. 25 of 1956) was convicted under Section 397, Penal Code, and sentenced to rigorous Imprisonment for a period of 9 years and to a fine of Rs. 600. This Judgment will govern both these appeals. It might be mentioned at the very outset that the conviction of appellant Sultan Ahamad under Section 397, Penal Code, was not correct and ought to have been under Section 395 read with S. 397, Penal Code, as Section 397 does not create a substantive offence.

(2.) IT is undisputed and there is ample evidence to prove that there was a dacoity at the house of Surendra Paul (P. W. 1) and Rangahari Paul (P. W. 7) on the night between 31 -1 -55 and 1 -2 -55 at mouja Chakbasta -Jagatrampur within the jurisdiction of Jatrapur Police station, in which cash, ornaments, clothes and other movables of a total value of Rs. 3000 were removed from two huts. Surendra Paul (P. W. 1) was on that night sleeping in one of the huts with some members of the family, while Rangahari Paul (P. W. 7) was sleeping with some other members of the family in the other hut which is to the south of the first one. Sometime after midnight 6 or 7 dacoits broke into the first hut in which Surendra Paul was sleeping. The dacoits were armed with lathis and one of them had a gun. The other dacoits numbering 8 or 10 who were armed with lathis similarly broke into the other hut. In the course of the commission of the dacoity both these witnesses and some others were assaulted and beaten and Rangahari Paul (P. W. 7) was given some lathi blows on his head resulting in lacerated wounds.

(3.) IN my opinion the extra -judicial confessions even if proved were inadmissible in evidence and at any rate in the circumstances present it would not be safe to rely on them. While the other witnesses say that when these extra -judicial confessions were made the Police were not present and had not eves arrived. Abdul Mazid Taluquedar (P. W. 10) who also stated this at first, had to admit when con. fronted with his deposition before the Committing Magistrate that it was the Daroga who questioned Akmat Ali on being told that the sweater belonged to P. W. 1 and then Akmat Ali made the confessional statement. It would thus appear that the confessions would fall within the purview of Sections 25 and 20, Evidence Act. Custody contemplated by Section 26 does not necessarily mean a formal arrest and what is necessary is that at the time of making the confession the accused should be in the hands of a Police officer i.e., not free to depart at his own free will. It is quite clear that the two appellants were in this position at the time they are alleged to have made the confessional statement.