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Synopsis

The Calcutta High Court on Wednesday set aside conviction of an accused under Section 302 of the IPC by the trial court on the grounds that the decision was based on a purported written confession given by the accused before police while he was in custody.

The bench was hearing an appeal filed by one Idrish Ansary against the conviction order dated July 30, 2015, passed by the trial court Purulia 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.”

“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 the trial, the said trial court ought not to have admitted the alleged written confessional statement of the present appellant into evidence by marking the same as Exhibit. It may be relevant to emphasize merely because the purported confession was in writing it would not escape the exclusion clause engrafted in Section 25 of the Evidence Act,” the court observed.

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 9:30 p.m. he went to the quarter of Zakir Hossain, who is a neighbour.

According to him, at approximately 11 p.m., he was called out by his inmates, when he came out from the quarter of his said neighbour, he noticed his father standing there in a perplexed state and at that time his father revealed to him that he had murdered his daughter, Afsana Khatun, by strangling her with a rope.

Following that, he discovered that his sister Afsana Khatun was lying dead on the cot, with blood seeping from her mouth. He also noticed a rope around her neck. He had also mentioned in a written complaint that his father informed him that he would be going to Anara Police Station to surrender himself.

On the basis of the aforementioned 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 own daughter.

On December 17, 2008, PW7 was posted at the Anara outpost as a 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 a confession in his own handwriting in his presence, and he then signed it.

On the basis of this, the 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.5000 on an alleged written confessional statement he gave to a police officer (PW7). Accused aggrieved by this judgment filed an appeal before the high court.

Advocate Monami Mukherjee representing the appellant argued that the trial court ought not to have admitted the alleged confessional statement made by the appellant into evidence in view of the 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 the law and thus trial court committed a gross error of law in placing reliance upon the oral evidence of PW7, she argued.

The advocate for the State submitted before the court that the trial court was very much justified in passing the impugned judgment and thus the present appeal was liable to be dismissed.

The court relied on the Supreme Court judgment in 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 that apart from oral evidence of PW7, no other material was available to sustain the charge under Section 302 of the Indian Penal Code against the present appellant.

Accordingly, the court set aside the impugned judgment dated July 30, 2015, as passed by Additional Sessions Judge, Purulia.

Case Title: Idrish Asary vs. The State of West Bengal

Statute: Section 302 of IPC