Confession Made To Police Officer In Absence Of Magistrate Can't Form Basis For Murder Conviction: Gauhati High Court

The Gauhati High Court recently acquitted a woman who was convicted by the trial court for murder of her husband, on the ground that her confession made to the police without corroboration cannot be the basis for the conviction.

The division bench of Justice Michael Zothankhuma and Justice Malasri Nandi observed:

“Section 26 of the Indian Evidence Act prohibits proof of a confession made by a person in custody, unless the confession is made in the immediate presence of a Magistrate. In view of the fact that the alleged statement/confession made by the appellant has only been made to police officers, the said statement/confession cannot be the basis for convicting the appellant for an offence under Section 302 IPC, as the same is inadmissible in evidence.”

The case of the prosecution was that the appellant had killed her husband with a dao on the night of December 21, 2015. A FIR was lodged on December 22, 2015 by the brother of the deceased-husband.

The investigating officer filed a charge-sheet stating that a prima facie case under Section 302 IPC against the appellant was made out as the appellant had apparently disclosed to the Police that she had killed her husband.

The appellant was convicted by the trial court under Section 302 (Punishment for Murder) of IPC and sentenced to undergo rigorous imprisonment for life vide judgement and order dated April 28, 2017.

The appellant filed an appeal before the High Court challenging the impugned judgement and order of the trial court.

The Amicus Curiae, K. Goswami submitted before the court that the entire case of the prosecution was based upon the alleged statement/confession by the appellant to the Police that she had killed her husband with a dao.

He further submitted that any statement, disclosure or confession made by any person to the Police is not admissible as evidence, in terms of Sections 25 & 26 of the Indian Evidence Act, 1872.

The Amicus Curiae contended that trial court erred in relying upon the GD entry made by the Police, for the purpose of convicting the appellant, as the Police Diary may be used as an aid in an enquiry or trial but the same could not be used as an evidence.

B Bhuyan, Additional Public Prosecutor submitted that the prosecution did not prove the guilt of the accused beyond all reasonable doubt before the trial court as apart from the alleged statement made by the appellant to the Police, there was nothing to connect the appellant to the crime in question.

The court noted that the appellant in her examination under Section 313 CrPC stated that she did not kill her husband and that this was a false case.

The court observed:

“there is no evidence adduced, corroborating the alleged statement made by the appellant to the police that she had killed her husband. As the statement/confessional statement made to the police is inadmissible as evidence, we are unable to agree with the finding of the learned Trial Court that the appellant is guilty of the crime of murder, especially when there is no evidence corroborating the alleged statement.”

The court noted that the conviction of the appellant had been basically made by the trial court, on account of the appellant having allegedly surrendered before the police and admitting that she had killed her husband.

However, the court averred:

“The appellant has denied surrendering before the police or admitting to the murder. Her explanation given under Section 313 Cr.P.C also does not corroborate the stand of the police that the appellant had admitted to murdering her husband or being present in the place of occurrence at the relevant time of the incident.”

The court further noted that the prosecution had not succeeded in leading evidence to show that the appellant and the deceased were ‘last seen together’ on the night of the incident.

Thus, the court set aside the impugned judgement and order of the trial court dated April 28, 2017 and acquitted the appellant with a direction to the State to release the appellant immediately.

Case Title: Smti. Bijuli Bala Rabha v. State of Assam & Anr.

Coram: Justice Michael Zothankhuma and Justice Malasri Nandi

Click Here to Read/Download Judgment