- (1.) THIS appeal is directed against a judgment dated 30th July, 2001 passed by the learned additional sessions Judge, dakshin Dinajpur in sessions Trial No. 9/2000 arising out of sessions Case no. 59/2000 by which the appellant Biren Singh was convicted for an offence punishable under section 302 of the Indian Penal Code. By an order dated 31st July, 2001 the convict was sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for a period of six months.
(2.) MR. Dutta, the learned Advocate, appearing in support of the appeal, submitted that there is no evidence on the basis of which the appellant could have been convicted. According to him, the learned Trial Judge grossly erred in convicting the appellant on the basis of an extra judicial confession. An extra judicial confession according to him is by itself a weak piece of evidence and cannot be relied upon without an assurance that the same was made voluntarily and was also true. In this case, there is nothing on the record to show that the alleged extra-judicial confession was factually proved. There is no dependable evidence to show that such an extra judicial confession was at all made. There is no eye witness. The case is based on circumstantial evidence and the circumstances appearing from the evidence on record do not point to the guilt of the appellant. He, therefore, submitted that the conviction cannot be allowed to stand. He also submitted that the appellant, according to his instruction, died in jail but he does not have any death certificate with him. He added that even if, the appellant is dead, the stigma arising out of the conviction should be removed and the sentence directing him to pay fine has to be set aside.
(3.) CONSIDERING the submissions of Mr. Dutta, we would like to examine the evidence in some detail. There are twelve witnesses. None of them is an eyewitness. Three of them were official witnesses. P. W. 10 is the autopsy surgeon. P. W. I 1 is a retired police constable who took the deadbody to the morgue and the P. W. 12 is the I. O. P. Ws. 1 and 2 were declared hostile. P. W. 3, Harinarayan Singha, deposed as follows: "on the date of alleged incident accused Biren Singh with his wife went to the neighbouring hat. After returning from the hat in the right around 10 p. m. , the accused assaulted his wife. Sefali, the daughter of Biren Singh (P. W. 1), went to call Dayal Barman and others including myself. I came to the house of the accused, but I found that the door of the bedroom was closed from inside. We requested Biren Singh to open the door, but he threatened the outsider uttering, who will come inside the room, I shall murder him. Then we returned home and fell asleep. In the morning around 6 a. m. said Sefali again told us that the door of the room of the accused was closed from inside. Then we suspected that there was something happened as the door was closed. Then we, the villagers pushed the younger daughter of the accused named Lalita through the window. That girl then opened the door. Even then the accused did not allow anybody to enter that room. He was armed with a knife in his hand and threatened that who will attempt to enter, he will kill him. ";