The Calcutta High Court has set aside the conviction of an accused under Section 302 of the IPC imposed by the Purulia trial court on the grounds that the decision was based on a purported written confession by the accused before police while he was in custody.
The bench was hearing an appeal filed by Idrish Ansary against the conviction order dated July 30, 2015, passed by the trial court under Section 302 of IPC.
The division bench of Justice Joymalya Bagchi and Justice Partha Sarathi Sen said: “Written confession before police officer (PW7) is not admissible in the eyes of law and the trial court should not have admitted the present appellant’s alleged written confessional statement into evidence by marking it as exhibit.”
The court observed: “Since PW7 is a police official, such written confession of the present appellant is not admissible in the eye of law and therefore the learned trial court while passing the impugned judgment ought to have discarded the oral testimony made by PW7 and in course of trial, the said trial court ought not to have admit the alleged written confessional statement of the present appellant into evidence by marking the same as Exhibit. It may be relevant to emphasise merely because the purported confession was in writing it would not escape the exclusion clause engrafted in Section 25 of the Evidence Act.”
BACKGROUND
On December 17, 2001, SK Manir, son of Idrish Ansary (accused-appellant) and the de facto complainant of the case, lodged a written complaint against his father. According to Manir, at about 9.30pm, he went to the quarters of Zakir Hossain, a neighbour.
According to him, at approximately 11pm, he was called out by other neighbours and he noticed his father standing in a perplexed state. His father then revealed to him that he had murdered his daughter, Afsana Khatun, by strangling her with a rope.
Manir discovered his sister Afsana Khatun lying dead on the cot with a rope around her neck. He also mentioned in the written complaint that his father informed him that he would be going to Anara Police Station to surrender.
On the basis of the written complaint dated December 18, 2001, a case was initiated under Section 302. The accused-appellant was tried under Section 302 of the Indian Penal Code for allegedly murdering his daughter.
On December 17, 2008, PW7 was posted at Anara outpost as police constable. According to him, the accused appeared before him and confessed that he had killed his daughter. He also testified that the accused gave him a document including a confessional declaration, which he demonstrated in front of the trial court. According to him, the accused freely wrote such confession in his own handwriting in his presence, and he then signed on it.
On the basis of this, trial court by order dated July 30, 2015, convicted the appellant under Section 302 of IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs 5,000. Aggrieved by this judgment, the accused filed an appeal before the court.
Advocate Monami Mukherjee, representing the appellant, argued that the trial court ought not to have admitted the alleged confessional statement into evidence in view of clear bar of Section 25 of the Evidence Act. Under Section 25 of the Evidence Act, a confession made before a police officer is not admissible in the eye of law and thus, the trial court committed a gross error of law in placing reliance upon the oral evidence of PW7.
Das, advocate for the State, submitted that the trial court was justified in passing the impugned judgment and thus the present appeal is liable to be dismissed.
The court relied on the Supreme Court judgment of Aghnoo Nagesia vs. State of Bihar and observed that a confession made to a police officer while in police custody shall not be proved as against a person accused of any offence.
Further, the court said apart from oral evidence of PW7, no other material is available to sustain the charge under Section 302 of the Indian Penal Code as against the present appellant.
Accordingly, the court set aside the judgment passed by Additional Sessions Judge, Purulia, and acquitted the accused-appellant.
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