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2000 DIGILAW 260 (GAU)

Lakhan Konwar v. State of Assam

2000-08-04

D.BISWAS, P.G.AGARWAL

body2000
P. G. Agarwal, J.— This appeal is directed against the judgment and order dated 12.8.98 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 45/94, thereby convicting the appellants under section 302 IPC and sentencing them to undergo imprisonment for life with a fine of Rs.2,000 each, in default of payment of fine to suffer further two months RI. Both the accused appellants were also sentenced to undergo RI for one year under section 201/34 IPC. 2. Heard Mr. JM Choudhury, learned senior counsel for the appellants and Mr. B. Banerjee, learned Public Prosecutor. 3. On 2.1.92 Smti Pramila Bordoloi lodged an FIR Ext 1 to the effect that on 28.12.91 at about 5.30 PM her son Bijoy Bordoloi was called out and taken by PW 2 Paran Deoraja from their h'ouse. The son did not return home and it is learnt that the two appellants had committed murder of her son and thrown the dead body into the river. The dead body was subsequently recovered by the police and sent for post-mortem examination. The Doctor MC Dutta, PW 5 held the autopsy and found that the deceased died due to asphyxia and not by drowning. The Doctor, however, did not find any external injuries as the body was under the process of complete decomposition. The Doctor also found that a jute rope was tightened up at the upper part of abdomen. The deceased was a young boy aged 15 years and from the facts and circumstances of the case and materials available on record it is well established that this is a case of homicide. The possibility of suicide or accidental drowning is ruled out. 4. The learned Sessions Judge has convicted the accused appellant on the strength of the solitary testimony of Paran Deoraja, PW 2. This witness has deposed that on 28th December, 1991 at the behest of the appellant Lakhan Konwar he called the deceased Bijoy Bordoloi from his house and thereafter both he and his friend Bijoy (deceased) went with the appellant Lakhan. Thereafter, the accused appellant Sonsingh Deori joined them. The two appellants took them to the bank of Sonai arid there accused Lakhan took Bijoy to jungle and he was asked to return home. Thereafter, the accused appellant Sonsingh Deori joined them. The two appellants took them to the bank of Sonai arid there accused Lakhan took Bijoy to jungle and he was asked to return home. He accordingly returned home and as tutored by the # accused persons informed the family members of Bijoy that he is hiding somewhere and will return later on. The witness further states that on 1 st January, 1992 he met the appellant Lakhan in a picnic where the appellant confessed before him that Bijoy has been killed by them. Accordingly PW 2 informed the matter to his father who conveyed the same to PW 1, the mother of the deceased. 5. Except the statement of PW1, there is absolutely no other material to connect the accused persons with the killing of the deceased. The question is whether the evidence of this witness PW 2 is wholly reliable to convict the accused appellant. The learned counsel for the appellant, however, submits that the evidence of PW 2 cannot be relied upon, for the reasons enumerated by us as below: (1) PW 2 did not disclose the name of the assailants either before PW 1 or other witnesses soon after the incident. The incident took place on 28th December, 1991 and the names were disclosed after 5 days, i.e. on 2nd January, 1992. As a matter of fact this witness gave a false information to PW 1 and that too in writing. The letter was seized by police but unfortunately the same was not produced and proved during trial. The plea that PW 2 might have got tightened also does not hold water as we find that on 1st January, 1992 he went to enjoy picnic with the accused persons. (2) PW 2 further admits that he was also suspected by police and he was kept in police custody for 2/3 days. It is therefore submitted that in order to save himself PW 2 might have invented the story implicating the accused persons. The circumstances of last seen together is against this witness PW 2 only. PW 1 has categorically stated that her son was called and taken away from her house by this witness PW 2. No other witness had seen the deceased in the company of the accused persons either on the date of occurrence or thereafter. The circumstances of last seen together is against this witness PW 2 only. PW 1 has categorically stated that her son was called and taken away from her house by this witness PW 2. No other witness had seen the deceased in the company of the accused persons either on the date of occurrence or thereafter. (3) PW 2 claims that he reported the matter to his father Bhabeswar Deoraja but the prosecution in its wisdom has not produced the said Bhabeswar to corroborate or support the statement of his son. The non-production of any other witness to support or corroborate the statement of PW 2 that on the ill fated day accused Lakhan was with him or that no other witness saw the accused in the company of the deceased and himself. It strikes at the root of the probability of the PW 2's story. (4) So far the claim of PW 2 that appellant Lakhan made an extra-judicial confession before him on 1.1.92 at the picnic site, it seems to be a cock and bull story. The occurrence took place on 28th December and this witness along with the accused was enjoying picnic after four days oblivious of the fact that his close friend has been put to death by the same person in whose company he is celebrating the. New Years Day, Thereafter has stated by PW 2, for no rhyme and reason accused made the statement by admitting that they have killed the deceased. What was the reason for making such confession is not known. It is well settled that the value of extra judicial confession depends upon the veracity of the witness. In a recent case State of Punjab vs. Gurdeep Singh, reported in JT 1999 (6) SC 514, the Apex Court observed : “There is no denial of the fact that extra judicial confession is admissible in evidence and the Court in appropriate cases can rely thereon to the extent of even basing conviction of the accused. The extra judicial confession by itself if, otherwise in conformity with the law, can be treated as substantive evidence, and in appropriate cases it can be used to punish an offender. This statement of law stands qualified to the extent that the Court should insist on some assuring material or circumstances is treat the same as piece of substantial evidence. The extra judicial confession by itself if, otherwise in conformity with the law, can be treated as substantive evidence, and in appropriate cases it can be used to punish an offender. This statement of law stands qualified to the extent that the Court should insist on some assuring material or circumstances is treat the same as piece of substantial evidence. There must be some cogent reasons for making confession. The confession in the normal course of events are made to avoid harassment by the police and to a person who could otherwise protect the accused against such a harassment. The delay in recording extra judicial confession before a person wholly unconnected with the police is always a matter of great suspect.” 6. In the instant case in spite of evidence on record to show that the alleged picnic on 1.1.1992 was attended by many persons, none of them has been produced to show that the appellant Lakhan was present in the picnic. As such, the extra a judicial confession as stated by PW 2 cannot be relied upon. In the case of Marwadi Kishor Paramanand & another vs. State of Gujarat, 1994 SCG (Crl) 1294 the Apex Court has restated the principles governing the appreciation of evidence of solitary witness. It was held : “Generally speaking, oral testimony may be classified into three categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. So far as the first category of proof is concerned, the Courts have no difficulty in coming to its conclusion either way, that is to say it may convict or may acquit on the testimony of the single witness, if his testimony is found to be above approach or suspicion of interestedness, incompetence or subordination. In the case of second category of the witness, the Court has equally no difficulty in coming to the conclusion. But in the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Most often there are situation where only a single person is available to give evidence in respect of a disputed fact. But in the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Most often there are situation where only a single person is available to give evidence in respect of a disputed fact. Naturally in such a situation the Court has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.” 7. In view of our foregoing discussion and decisions we held that the evidence of PW 2 is not wholly reliable and it cannot form the basis for conviction of the appellants mainly because there remains a nagging doubt whether the deceased was killed by the appellants or by this witness himself in association with others. Apparently there was no motive on the part of the appellants to kill e the deceased. Hence in view of the nature of testimony of PW 2, we find that the appellants are entitled to the benefit of doubt. Accordingly, the appeal is allowed. The conviction and sentence of the accused appellants is set aside. They are acquitted of the charges and are set at liberty forthwith.