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2000 DIGILAW 261 (GAU)

Jagadish Debnath 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 11.12.97 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 21 (DH)/95, thereby convicting the accused appellant under section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000, in default of payment of fine to suffer RI for another 3 (three) years: 2. Prosecution story of the case in brief is that the three year son of the informant Sushil Debnath became untraceable since midday of 23.4.93. In the early morning of 24.4.93 a gunny bag containing the dead body of the deceased boy Tinku Debnath along with a paper slip was left in the courtyard of the a complainant. Police was informed and during investigation and on the strength of the paper slip the appellant Jagadish Debnath was apprehended. The accused made a judicial confession which was recorded under section 164 CrPC. On completion of investigation was charge sheeted. 3. Learned Sessions Judge, Dhemaji tried the accused for the offence under section 302 IPC. During investigation, as many as, 13 witnesses were examined on behalf of the prosecution and one witness was examined by the defence. There were, as many as, 6 paper exhibits and 5 material exhibits on behalf of the prosecution and one paper exhibit on behalf of the appellant. On conclusion of trial the learned Sessions Judge convicted the accused under section 302 IPC and sentenced him to suffer imprisonment for life and pay a fine of Rs. 10,000, in default to further imprisonment for 3 years. It was further provided that if the fine amount is realized it shall be paid to the father of the deceased. 4. We have heard Mr. BR Dey, learned counsel for the appellant and Mr. B. Banerjee, learned Public Prosecutor appearing for the State of Assam. 5. There is overwhelming oral evidence on record to show that the minor boy of the complainant, Tinku became untraceable on 23.4.93 and on the morning of 24.4.93 a gunny bag tied on the mouth was found in front of the house of the complainant. B. Banerjee, learned Public Prosecutor appearing for the State of Assam. 5. There is overwhelming oral evidence on record to show that the minor boy of the complainant, Tinku became untraceable on 23.4.93 and on the morning of 24.4.93 a gunny bag tied on the mouth was found in front of the house of the complainant. On opening the said bag, the dead body of the minor was found along with a paper slip wherein it was stated “I asked you whether you will give money or life you did not pay money look I have taken life, ULFA”. The note is in Assamese with the word 'ULFA' in English. 6. The post mortem examination in this case was conducted by Dr. MM Barua, PW 9, who found fracture on the second survical vertebra with injury to the spinal cord at that level. In the opinion of the doctor the death was due to shock and asphyxia as a result of the injury sustained on the spinal cord. Injury on the spinal cord was caused due to twisting of the neck. The medical evidence was not challenged and in view of the oral and medical evidence on record we concur with the finding of the trial Judge that this is a case of homicide. The possibility of the accidental death has been ruled out by PW 9. 7. In this case, there is no eye witness to the incident, that is, nobody saw the deceased being killed. The appellant has been convicted on the basis of the circumstantial evidence and judicial confession. The circumstances established by the prosecution are that the torn piece of paper found with the dead body which has been exhibited as Ext 1 was torn out from the page of an Exercise Book (Material Ext 4) and the said Exercise Book belonged to the sister of the accused appellant. It was recovered and seized by police from the house of the accused. The seizure was made by Seizure List, Ext 5. In this case the Material Ext 1, Material Ext 4 and specimen writing of the accused were sent to the Forensic Science Laboratory who opined that the Material Ext 1, a piece of paper was torn out of Material Ext 4 but they failed to give any definite opinion regarding the authorship of the Material Ext 1. In this case the Material Ext 1, Material Ext 4 and specimen writing of the accused were sent to the Forensic Science Laboratory who opined that the Material Ext 1, a piece of paper was torn out of Material Ext 4 but they failed to give any definite opinion regarding the authorship of the Material Ext 1. Learned counsel for the appellant has submitted that the Senior Scientific Officer who had made the examination has not been examined and the report of the FSL was not proved and exhibited. Learned trial Court has held that the report of the FSL is admissible in evidence under section 293 (1) CrPC. There is no dispute regarding the admissibility of the report but in this case we find that the report has not been proved and exhibited either by summoning the Expert or through Investigating Police Officer. As the Handwriting Expert has failed to give any opinion regarding the authorship of the Material Ext 1, we hold that the above circumstance is not of much importance. 8. The judicial confession of the accused was recorded by Magistrate Soneka Bora, PW 10. Ext 6 is the confessional statement. She has deposed that the confession was recorded by her own being satisfied that it has been made voluntary. The relevant portion of the confession reads as follows : (Translated in English) “The house of Tinku Debnath is situated near our house and we have a grocery cum battery charging shop. On 23.4.93 Tinku came to the verandah of our shop and it was about 10 AM. Tinku is aged 4 years. I called Tinku inside the shop. He came to my battery shop. At that time there was no one else in my shop. I thereafter caught hold of Tinku and strangulated him on his neck. Tinku was in pain for some time and thereafter he died. I, thereafter, kept the dead body below the chair and thereafter took the dead body on the back side of our house. There was none in my house at that time and I put the dead body in a bag and kept the bag below the chair, I could not dispose of the dead body during the day time. Father generally return home at night and after taking meal goes to the shop for sleeping at night. There was none in my house at that time and I put the dead body in a bag and kept the bag below the chair, I could not dispose of the dead body during the day time. Father generally return home at night and after taking meal goes to the shop for sleeping at night. I could not dispose of the dead body during night and in the early morning before sunrise I carried the bag and kept the bag in front of the house of Tinku. Later on police came. Tinku's father Sushil Debnath had once assaulted my mother for which I killed Tinku.” 9. In this case, the accused has retracted from his confession at the time of examinations under section 313 CrPC. The confessional statement was recorded on 26.4.93 and the retraction was made for the first time on 19.7.97, i.e. after more than four years. In the case of Sankaria vs. State of Rajasthan, AIR 1978 SC 1248 , the Apex Court had observed : “Where the confession was not retracted at the earliest opportunity, but after lapses of several months when the prosecution evidence was closed and the accused for the first time during examination under section 313 CrPC retracted the confession, the confession could be accepted as voluntary.... ... It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused primarily on the basis of his confession recorded under section 164 CrPC, the Court must apply a double test: (1) Whether the confession was perfectly voluntary ? (2) If so, whether it is true and trustworthy ? Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have caused by any inducement, threat or promise such as is mentioned in section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must, before acting upon the confession reach finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid cannon of universal application. If the first test is satisfied, the Court must, before acting upon the confession reach finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid cannon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. The law has been well settled in a decision of the Apex Court in Sarwan Singh Rattan Singh vs. State of Punjab, AIR 1957 SC 637 wherein it has been observed that in law it is always open to the Court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.” 10. The above decision was reiterated by the Apex Court in Pyarelal, AIR 1963 SC 1094 . The Apex Court observed as follows : “A retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a Court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration, but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. The above proposition of law was followed by the Apex Court in the case of Kehar Singh (supra) popularly known as Indira Gandhi murder case.” 11. In a recent decision Shivappa vs. State of Karnataka, AIR 1985 SC 980 and in the case reported in (1997) 3 SCC 721 , the law regarding confession as stated has been reiterated by the Apex Court. Learned counsel for the appellant has challenged the confession. Ext 6 mainly on the ground that sufficient time was not given for reflection. As per the evidence of the Magistrate about three hours time was given to the accused appellant for reflection. There is no hard and fast rule as to how much time should be given for reflection. As a matter of fact there is no statutory provisions either under section 164 CrPC or guidelines given by the High Court that a particular period of time must be given for reflection. The object of giving such time for reflections is to ensure that the accused is completely free from police influence and the question to how much time should be given depends and vary from case to case. In the case of Henry W. Robberth vs. State of Assam, AIR, 1985 SC 823, the confessional statement recorded after only three hours time for reflection was accepted. In this case the accused admits the making of the statement before the Magistrate but claims that he was warned by the police that if he does not confess he would be shot dead. In this case the accused admits the making of the statement before the Magistrate but claims that he was warned by the police that if he does not confess he would be shot dead. Learned Magistrate has categorically recorded that at the time of confession no injury was found on the person of the deceased. The accused person was arrested on 24.4.93 and he was sent to the Court from Silapathar PS on 25.4.93. In view of the transport bottleneck and lack of conveyance etc, the accused was produced before the learned Chief Judicial Magistrate, Dhemaji at 11.00 AM. Thus the accused was b in police custody for less than 24 hours only. As such it can not be said that more than 3 hours time given to the accused was not sufficient or that the statement was made under police influence. Considering the detail statement made by the accused the possibility of concoction or tutoring is fully ruled out. Neither the police nor the complainant had any animosity against the accused and as a matter of fact he was not suspected even. The accused was apprehended on the basis of the Material Ext 1 and Material Ext 4 only. Learned trial Judge Has relied on the confessional statement and on consideration of the materials on record we also hold that the confessional statement was voluntarily made and it was true. The statement made in Ext 6 finds full corroboration from the other evidence on record as regards the nature of injury, cause of death and the recovery of the dead body.” 12. Learned counsel for the appellant has also challenged the conviction of the accused appellant on the ground that the accused was a juvenile at the time of the commission of the offence and as such he could not have been tried by the Sessions Court. In support of his submission accused has examined DW 1, his father, who has produced a Birth Certificate, Ext A, to show that the accused was born on 2.1.78. The offence was committed on 23.4.93 and as per the Birth e Certificate, the accused was aged about 15 years 3 months at the time of the commission of the offence. Learned Public Prosecutor has submitted that the plea of juvenile/age of the accused was raised for the first time at the fag end of the trial. The offence was committed on 23.4.93 and as per the Birth e Certificate, the accused was aged about 15 years 3 months at the time of the commission of the offence. Learned Public Prosecutor has submitted that the plea of juvenile/age of the accused was raised for the first time at the fag end of the trial. Leaned trial Judge did not place much reliance on Ext A mainly on the ground that Ext A was obtained in the year 1995, i.e. during the course of the trial only. The witness DW 1 admits that the Birth Certificate was applied for J and obtained in the year 1995. A perusal of the above certificate also shows that in the year 1995 the petitioner filed an application for issuance of Birth Certificate giving the date, whereupon the Ext A was issued. Learned counsel for the appellant submits that under the Act the birth may be registered at a later stage also and Birth Certificate issued by the competent authority cannot be discarded. The Birth Certificate is no doubt admissible in evidence but the question is how much value can be placed on such evidence is a question of appreciation of evidence and the Court has discretion to place or consider as to how much weight is to be given to such document. Learned Public Prosecutor has also referred to a decision of the Apex Court wherein it has been held that the date of commission of the offence may not be relevant in each and every case and the date of commencement of trial will be relevant for the purpose of considering whether the accused has to be tried under the Juvenile Justice Act or under the ordinary criminal law. In this case, charge was framed on 18.1.96 and as on that date the accused was admittedly more than 18 years of age. According to the prosecution the accused was aged about more than 18 years on the date of the offence itself and this finds mention in the forwarding statement also. The accused had given his age as 16 years and not 15 years as claimed by him now. According to the prosecution the accused was aged about more than 18 years on the date of the offence itself and this finds mention in the forwarding statement also. The accused had given his age as 16 years and not 15 years as claimed by him now. Considering the nature of the actions and the cold blooded manner in which the 3 year minor boy was killed and the calculated manner in which the dead body was disposed of and the note was placed in the bag to divert the attention of the investigating police by the accused pointing out an accusing finger to 'ULFA' shows the maturity of the person involved and this cannot be the handiwork of juvenile. We find no force in the above submission. 13. Learned counsel for the appellant further submitted that there was no motive in the killing. But in the confessional statement itself the accused has mentioned about the motive. It is stated that as the father of the deceased had once assaulted his mother he killed the innocent boy and took the avenge on the father of the deceased. Relying on the confessional statement of the accused appellant and the other materials on record we hold that the conviction and sentence of the accused appellant needs no interference. There is no merit in the appeal and accordingly the criminal appeal is dismissed.