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2002 DIGILAW 124 (GAU)

Philip Sareng v. State of Assam

2002-03-15

I.A.ANSARI, J.N.SARMA

body2002
J.N. SARMA, J- This appeal has been filed against the judgment and order, dated 26.5.99, passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 50/97 convincing the accused person under Section 302IPC and sentencing him to undergo imprisonment for life and pay a fine of Rs. 1000/- and, in default, to undergo further rigorous imprisonment for one year. 2. The brief facts of the case are as follows:- On 1.12.93, a written information was given to the Officer-incharge of Golaghat Police Station alleging to the effect that one Mohan Gogoi, elder brother of the informant, was missing from 13th November, 1993, and on 1.12.93 at about 8 a.m., when one Rajib Ahmed went to the paddy field, he found there Mohan Gogoi lying dead. The members of the family of Mohan Gogoi was accordingly informed. They went to the place of occurrence, found the dead body and identified the same as dead body of Mohan Gogoi. In the first information report, it was stated that deceased Mohan Gogoi's family suspected accused Philip Sareng as the killer, because, the accused had a long standing dispute with the deceased. On receipt of this information, Police registered a case, came to the spot, held inquest over the said deadbody. On completion of investigation, Police submitted charge-sheet against two accused, namely, Philip Sareng and Luis Karketa under Section 302/34 IPC. 3. The learned Sessions Judge framed accordingly charge against the two accused under Section 302/34 IPC. The accused persons pleaded not guilty to the charge and claimed tahe tried. Learned Sessions Judge found no material against the accused Luis and acquitted him but on finding accused Sareng guilty of the charge, convicted and sentenced him as hereinabove mentioned. PW-1 (Tularam Gogoi) has deposed that he went to the place of accused philip and, on reaching there, he found blood on the passage. One Laben Induwa, whose house is situated near the place of occurrence, told him that accused Philip Sareng and accused Luise had assaulted Mohan Gogoi. But this Laben Induwa was not examined as witness. So, the statement of PW-1 with regard to the assault on Mohan Gogoi by the two accused persons aforementioned is nothing but hearsay. So, the evidence of PW-1 is of no value. 4. PW-2 is Rajib Ahmed. But this Laben Induwa was not examined as witness. So, the statement of PW-1 with regard to the assault on Mohan Gogoi by the two accused persons aforementioned is nothing but hearsay. So, the evidence of PW-1 is of no value. 4. PW-2 is Rajib Ahmed. His evidence is not relevant to determine the question inasmuch as he has only deposed that when he went to the field, he found the deadbody of Mohan Gogoi lying there. PW-3 is Ranjit Gogoi. He deposed that on the date of occurrence, his father Mohan Gogoi went to the Congress Office, at Golaghat, but his father did not come back till dusk. On^ the following day, deadbody of his father was found. When he was coming back after having a look at his father's body, accused Philip stopped him on his way and told him, "I will kill you the way, I have killed your father". At that time, his elder brother, Tularam Gogoi, arrived at the scene. PW-4 is Nandiram Gogoi. He is a witness to the seizure list and he deposed that an axe was recovered from below the flower bed, which is located within the campus of the accused person's residential house. This recovery is also not sufficient to fix liability of murder on the accused, because it was not established that it was this axe, which was used/utilised for the murder. No statement leading to its discovery was recorded nor was the axe examined by Seriologist. PW-5 is Imamuddin Ahmed. He is also a witness' with regard to recovery of the axe and he deposed that the axe was recovered from below the Tagor flower bush. But that recovery, as indicated above, is not sufficient to rope in the accused. PW-6 is Prodip Hazarika, but his evidence is absolutely irrelevant as he merely deposed that he heard that accused had cut Mohan. PW-7 (Dharma Kanta Bora), an Investigating Officer, has as submitted charge-sheet only. PW-8 is the doctor, who conducted post-mortem examination on the said deadbody and found as follows: "Injuries: 1) Clean cut would on right occipital region of size 5cm x 2.5cm x bone deep. 2) Deep lacerated wound on right upper neck\ just below the mandible of size 2cm x 5cm. 3) Sweeling over the right lower occipital region behind the right ear. 2) Deep lacerated wound on right upper neck\ just below the mandible of size 2cm x 5cm. 3) Sweeling over the right lower occipital region behind the right ear. 4) Abrassion on interior abdominal wall and multiple abrassions and bruises seen on back chest and left lateral wall." 5. The doctor opined that the injuries were anti-mortem and cause of death was due to brain tissue injury of the right occipital region associated with fracture of the occipital bone, which was associated with a fracture of ribs and chest wall and laceration of brain tissues. 6. This case is, no doubt, a case of homicide, but the question is as to who is responsible for this murder. PW-9 (Prakash Chandra Hazarika) is the real Investigating Officer. From his evidence, some glaring omissions have been brought out with regard to the said extra judicial confession inasmuch as he has confirmed that PW-1 (Tularam) did not tell him that there was altercation between Ranjit and Sareng. 7. The point, which was framed by the learned Judge, is quoted below: "Whether the two accused persons, in furtherance of their common intention, committed murder of Mohan Gogoi?" 8. From the judgment, it appears that the learned Judge placed heavy reliance on the so-called extra-judicial confession of accused Philip given to the effect that the accused had told Ranjit (PW-3) that he had killed Mohan and he would kill Ranjit also. 9. As indicated above, it was for the first time in the Court that the informant, Tularam (PW-1), stated that he had heard accused Philips telling PW-3 (Ranjit) that he had killed mohan and he would kill Ranjit. Moreover, there is no denial of the fact that enimity between accused Philip Sareng and Ranjit's family existed, because it is evident from the first information report itself, wherein Phillip Sarang was named as suspect and it was stated therein that there was a long standing quarrel between Philips and Mohan. It was also not mentioned in the FIR that the extra judicial confession was known to the informant before FIR was loding. Further, if the confession is made by an accused to the private person, such testimony is admissible. But at the same time, it must be voluntary and truthful. It was also not mentioned in the FIR that the extra judicial confession was known to the informant before FIR was loding. Further, if the confession is made by an accused to the private person, such testimony is admissible. But at the same time, it must be voluntary and truthful. The extra-judicial confession on which conviction is based in this particular case appears to be highly improbable inasmuch as the two witnesses before whom the confession was said to have been made were enimical to the accused. The evidence of extra judicial confession does not, therefore, inspire confidence. Further, law is that the Court can rely on extra judicial confession for basing conviction, but a catena of decisions of the Supreme Court has settled that the Courts should insist that the extra judicial confession should receive some corroboration from the other evidence on record. But in this case, there is no other evidence. Further, the Court must also find out if the witnesses, who deposed with' regard to the extra judicial confessions, are credible. If the evidence is found shaken or the evidence does not inspire confidence, no value can be given to such extra-judicial confession. We may refer in this regard to BaldevRaj-Vs-StateofHaryana ( AIR 1991 SC 37 ), wherein it was held as follows: "An extra-judicial confession, if voluntary, can be relied upon by the Court alongwith other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made ........................................................ When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence." 10. In the case at hand, for the reasons already discussed above, it is clear that the evidence of the two witness, who have alleged that the accused Sareng had made extra-judicial confession, cannot be safely relied upon and in view of the fact that there is no other convincing evidence on record connecting the accused with the murder of deceased Mohan Gogoi, conviction of the accused, in our view, cannot be upheld. 11. 11. In the recent case of C.K. Raveendran-Vs-State ofKerala (2000) 1 SCC 225 , the case against the accused was that he had gone alongwith the witness concerned to an arrack shop and after consuming liquor there, accused had disclosed to the witness entire incident leading to the murder of the deceased. The Supreme Court refused to rely on such evidence/extra judicial confession on the ground that the confession was an outcome of the consumption of liquor. 12. It is, thus, clear that value to be attached to an extra judicial confession depends entirely on the facts of the case. In the present case, since we find wholly unsafe to believe assertions of PW-3 (Ranjit Gogoi) and PW-1 (Tularam Gogoi) that accused Philip Sareng had told them to the effect that he had killed Mohan Gogoi, we find it impossible^ uphold the conviction of the accused by the learned trial Court. We accordingly set aside the order of conviction and sentence passed by the learned Sessions Judge in Sessions Case No. 50/97. The accused shall be set at liberty. Send back the case record. 13. Heard Mr S.A. Laskar, learned Sr. counsel for the appellant, and Mr G. Choudhury, learned Public Prosecutor, Assam. It is submitted by Shri Laskar that the accused is, now, in jail. It is directed that the accused shall be released by the jail authorities if he is not wanted in connection with any other case.