Confession to police in the absence of Magistrate not basis for conviction: Gauhati HC

 STAFF REPORTER

GUWAHATI: The Gauhati High Court acquitted a woman who was earlier convicted by a lower court for the murder of her husband as the confession based on which she was convicted was recorded in the absence of a magistrate.

A Bench of the Gauhati High Court comprising Justice Michael Zothankhuma and Justice Malasri Nandi announced this judgement on Monday. The judgement mentioned, “With regard to whether the ‘last seen together’ theory could be applied to the facts of the case. We find that there is no evidence adduced, to show that the appellant was staying with the deceased on the night of the incident and as such, it cannot be said that the prosecution has succeeded in leading evidence to show that the appellant and the deceased were last seen together on the night of the incident.”

“ … 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. In that view of the matter, we are of the view that the conviction of the appellant by the learned Trial Court under Section 302 IPC is not sustainable in law.” this added

“The judgment dated 28.04.2017 passed by the Court of the learned Additional Sessions Judge, Goalpara in Sessions Case No. 27/2016 is hereby set aside. Consequently, the sentence imposed upon the appellant under Section 302 IPC is also set aside. The appellant is acquitted of the charge under Section 302 IPC. The State respondent is directed to immediately release the appellant from jail,” this added further.

Randhan Rabha was hacked to death by his wife, Bijuli Bala Rabha with a dao. The FIR was given on 22.12.2015 in Bagnan Police Station and Bagnan P.S. Case No. 190/2015 under Section 302 IPC was registered. The Investigating Officer thereafter filed a charge sheet, having found a prima facie case under Section 302 IPC against the woman, as she had apparently disclosed to the Police that she had killed her husband. Charge under Section 302 IPC was framed against the appellant, on the ground that she had killed her husband on the night of 21.12.2015.

The Additional Sessions Judge of the Goalpara in Sessions Case No. 27/2016 had previously held Bijuli Bala Rabha guilty under Section 302 IPC and sentenced her to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000 as per an order passed on 28 April 2017.

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