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2002 DIGILAW 132 (GAU)

Troilokya Gogoi v. State of Assam

2002-03-20

I.A.ANSARI, J.N.SARMA

body2002
I.A. ANSARI, J. — Challenging the judgment and order, dated 31.8.96, passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 3/95 under Section 302 IPC, convicting the accused-appellant us 302 IPC and sentencing him to imprisonment for life and pay a fine of Rs. 1,000/- and in default, further rigorous imprisonment for 6 (six) months, the accused-appellant has preferred this appeal from inside the jail. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated thus: on 29.7.94 at about 8 a.m., at Dolakhoria Gaon, while deceased Tepuram Gogoi was ploughing his paddy field along with his nephew, Suren Gogoi, accused Troilakya Gogoi came silently from behind and gave blows with a dao on the neck and cheek of his father, Tepuram GogokTepuram fell down on the ground and.^utsn Gogoi, who was ploughing the land at a distance of about one nal (i.e. 8 cubics) ahead of the place, where Tepuram was ploughing the land, saw the accused running away holding a dao in his hand. Tepuram's elder brother, Jogeswar Gogoi, who was about to ride his bicycle at his house, heard some sound from the direction, where Tepuram was ploughing the land. Jogeswar stopped his bi-cycle and out of curiosity, while he was proceeding towards the place of occurrence, he saw accused Troilakya come running from the field holding a dao in his hand. On reaching the place of occurrence, Jogeswar was informed by Suren that Tepuram had been cut to death. Jogeswar also saw Tepuram lying on the ground with cut injury on his neck. While arrangements were being made to shift Tepuram to hospital, Tepuram succumbed to his injuries. Jogeswar came to Golaghat Police Station and lodged there a written Ejahar (Ext. 6). Treating the Ejahar as First Information Report, Golaghat P.S. Case No. 313/94 u/s 302 IPC was registered. Police came to the place of occurrence, held inquest over the said dead body and prepared Inquest Report (Ext. 3). The accused was arrested at his home and, on being led by him, weapon of offence, namely, the dao was recovered and seized vide seizure list (Ext. 1) by police. The accused also made a judicial confession and his confessional statement (Ext-7) was recorded. Autopsy was performed on the said body and post-mortem report (Ext-5) was prepared. 3). The accused was arrested at his home and, on being led by him, weapon of offence, namely, the dao was recovered and seized vide seizure list (Ext. 1) by police. The accused also made a judicial confession and his confessional statement (Ext-7) was recorded. Autopsy was performed on the said body and post-mortem report (Ext-5) was prepared. On completion of investigation, police laid charge sheet against the accused under Section 302 IPC. 3. On the case being committed to the Court of Sessions, learned Sessions Judge framed a charge under Section 302 IPC against the accused; accused pleaded not guilty thereto. To bring home the charge, prosecution examined as many as 8 witnesses including the Investigating Officer. The plea of the defence, as reflected from the trend of cross-examination and from the statement recorded under Section 313 Cr.P.C, was a mixed plea of denial and of the accused having killed his father under grave and sudden provocation. The defence, however, adduced no evidence. 4. On conclusion of the trial, learned trial Court found the accused guilty of the charge. The accused was accordingly convicted under Section 302 IPC and sentenced as hereinabove described. 5. We have carefully perused the relevant case record. We have heard Mr A.K. Goswami, learned Amicus-Curie, and Mr G. Choudhury, learned counsel for the respondent State. 6. It has been contended before us by learned Amicus-curie that since there was no eyewitness to the occurrence, mere evidence of the fact that the accused was seen running away from the place of occurrence with a dao in his hand was not legally sufficient to hold that it was none but the accused, who had killed Tepuram. It has also been contended before us by Mr Goswami that there was no convincing evidence on record that the dao, which the police seized, had been recovered at the instance of the accused. Mr Goswami has submitted that apart from the fact that the confessional statement of the accused was involuntary, a dispassionate study of the confessional statement shows that the accused had killed his father, Tepuram, in consequence of an altercation that had taken place between the accused and Tepuram following refusal by Tepuram to allow the accused to plough the land, which had been redeemed from mortgage. 7. 7. Controverting the above submissions made on behalf of the accused-appellant, Mr Choudhury, learned public prosecutor, has contended that the evidence on record convincingly proves that it was the accused, who had killed Tepuram, and even if the accused is believed to have killed his father following an altercation, as has been contended by the learned Amicus-curie, the fact remains that the altercation has not been proved to be so grave and sudden that it could have deprived the accused of his self-control to in killing his father. It is emphasised by Mr Choudhury that the accused, according to the evidence on record, came silently, with a deliberate design, from behind and gave blow with dao on his father's neck with the intention of killing him and after having dealt fatal blow on the neck of his father, accused fled away from the scene of the crime and he cannot, therefore, be said to have acted under grave and sudden provocation. 8. Having heard both sides, when we closely scrutinize the evidence on record, we find that there is no dispute that at the time, when Tepuram sustained cut injuries on his neck and fell down on the ground, he was ploughing his paddy field helped by his nephew, Suren (PW-2), and though Suren had not witnessed the accused assaulting Tapuram, he (Suren) did see the accused running away from the place of occurrence holding a dao in his hand. We find that except throwing some suggestions to PW-2, defence did nothing to discredit and/or demolish his evidence. 9. Coupled with the above, evidence of Tepuram's elder brother, Jogeswar (PW-1), reveals that while this witness was about to ride his bi-cycle at his home to go to Golaghat, he heard some sound from the direction, where Tepuram was ploughing the land. PW-1 stopped his bi-cycle and when he was proceeding towards the said direction, he saw accused come running from the said paddy field holding a dao in his hand. On reaching the place of occurrence, PW-1 was told by PW-2 that Tepuram had been cut to death. PW-1 has also deposed that he saw Tepuram lymg on the ground with his throat cut and blood coming out from the wound. It is in the evidence of PW-1 that when the arrangements were being made to shift Tepuram to hospital, Tepuram died. 10. PW-1 has also deposed that he saw Tepuram lymg on the ground with his throat cut and blood coming out from the wound. It is in the evidence of PW-1 that when the arrangements were being made to shift Tepuram to hospital, Tepuram died. 10. Though it is true that neither PW-1 nor PW-2 witnessed assault on Tepuram at the hands of the accused, the unshaken evidence of PW-1 and PW-2 convincingly shows that while Tepuram was ploughing the land, PW-2 noticed that Tepuram had fallen on the ground with injury on his neck as aforesaid and accused running away from the said paddy field holding a dao in his hand. While the accused was so running away, he was also seen by PW-1. The unshaken, natural, coherent and consistent evidence of these two witnesses leave no room for doubt that Tepuram sustained injury on his neck at the hands of the accused. 11. We may also point out that according to the evidence of PW-6 (Dr Kumud Dutta), who had performed post-mortem examination on the said body, he had found, inter alia, one cut injury about 5" in length and 4" in depth on the left side of the neck, which had severed major arteries and veins of the neck up to the cervical bone and that even the cervical bone had sustained fracture. PW-6 has opined that the death was caused due to shock and severe hemorrhage resulting from the injuries so sustained by the deceased. PW-6 has also clarified that the injuries could have been caused by a weapon like dao. 12. Though Mr Goswami has contended that evidence on record does not convincingly prove that the dao was recovered by police at the instance of the accused, we find from a careful reading of the evidence on record that the Investigating Officer (PW-7) has deposed that before the dao was seized, the accused had made a statement. This statement has been proved by PW-7 as Ext-2. We notice that the defence could elicit nothing from PW-7 or from any other witness to show that these assertions of the IO was false. 13. We have carefully perused Ext.-2. Keeping excluded from the purview of our consideration the inadmissible pieces of his statement, contained in Ext.2, we find that in Ext. We notice that the defence could elicit nothing from PW-7 or from any other witness to show that these assertions of the IO was false. 13. We have carefully perused Ext.-2. Keeping excluded from the purview of our consideration the inadmissible pieces of his statement, contained in Ext.2, we find that in Ext. 2, accused had, inter alia stated, "I threw the dao near a ridge in the north-west direction of my father-in-law's homestead.... I shall be able to produce the dao in presence of public." 14. It is abundantly clear from a bare reading of the above two sentences that both these sentences could have individually helped the police to recover the dao. 15. Close on the heels of the above evidence of PW-7, PW-3 (Mohan Gogoi) has stated that the accused had led the police to bamboo groves and had produced the dao therefrom. To the same effect is the evidence of PW-4 (Dilip Phukan). Coupled with this, seizure list (Ext-1) shows that on being led by the accused, the dao was recovered from the north-west direction of the house of Meghiram Gogoi. This fist into the description of the place, (which the accused had indicated in Ex-2), as the place, where he had thrown the dao. We may hasten to add here that though the learned Sessions Judge relied on the evidence of PW-3 given to the effect that the accused had told the police that with the said dao, he had cut his father, we have kept this piece of evidence wholly excluded from the purview of our consideration, because of the embargo placed by Section 25 of Evidence Act making the said statement, which amounts to confession, inadmissible on the ground that the said confession, which was made in presence of police, had not led to the discovery of any fact. 16. In the instant case, though the statement of the accused given to the effect as to where he had thrown the dao is incriminatory, it becomes admissible under Section 27 of the Evidence Act, because on the strength of this statement coupled with the fact that the accused expressed his willingness to produce the dao, the police did recover the dao, which, in turn, proves, in the light of Ext.2, that it was the accused, who had thrown the dao at the place aforementioned. 17. 17. We derive strength for the conclusion that we have reached above from a close reading of State of Uttar Pradesh-Vs-Deoman Upadhyaya ( AIR 1960 SC 1125 ). wherein treating as incorrect the view of the High Court that mere fetching of the gandasa from its hiding place did not establish that Deoman himself had put it in the tank and that an inference could legitimately be raised that some body else had placed the gandasa in the tank or that Deoman had seen someone placing that gandasa in the tank or that someone had told Deoman about the gandasa lying in the tank, Supreme Court held that the information so given by the Deoman is provable in so far as it distinctly relates to the fact thereby discovered and, thus, his statement that he had thrown the gandasa in the tank is an information, which distinctly relates to the discovery of the gandasa. 18. We deem it necessary to point out here that a fact discovered, as envisaged by Section 27, cannot be equated to the object produced/recovered. The fact discovered embraces the place from where the object was produced/recovered and the knowledge of the accused on such subject matter. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not really lead to the discovery of a knife; what such information does it to lead to the discovery of the fact that a knife is kept concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered become very relevant. Reference may, in this regard, be made to Pulukuri Kottaya-Vs-EmperorAIR 1947 (PC) 67. 19. In the case at hand, the statement of the accused, contained in Ext-2, coupled with the recovery of the dao shows that not only that the accused knew where the dao was, but that it was the accused, who had thrown the dao there. 20. Reference may, in this regard, be made to Pulukuri Kottaya-Vs-EmperorAIR 1947 (PC) 67. 19. In the case at hand, the statement of the accused, contained in Ext-2, coupled with the recovery of the dao shows that not only that the accused knew where the dao was, but that it was the accused, who had thrown the dao there. 20. In the recent case, namely, State of Maharashtra-Vs-Damu, 2000 SCC (Cri) 1088, wherein the accused had told the police, "Dipak's dead body was carried be me and Guruji (A-2) on his motorcycle and thrown in the canal," Supreme Court treated the statement as admissible, because of the recovery of broken pieces of the tail lamp of the motorcycle of the accused holding that the police had thereby discovered that the accused had carried the deadbody on that motorcycle to the spot. 21. What crystallizes from the above discussion is that the accused, as indicated above, was found running away .from the place of occurrence with a dao in his hand after his father Tepuram, who was ploughing the land, fell down on the ground with cut injury on his neck and that the said injury, which had caused Tepuram's death, could have been caused by a dao. 22. The above discussion leaves no room for doubt that it was the accused, who had wounded and killed his father as described hereinabove. This conclusion gets further strengthened from the fact that the accused had led the police to the recovery of dao from bamboo groves. Though this piece of evidence does not ipso facto show that the said dao was the weapon of offence, the statement of the accused (as reflected from Ext-2) clearly shows that the accused had thrown the dao at the said place and that is why, he had told the police that he would be able to produce the dao and that he did thereafter lead the police to the recovery of the said dao. There remains, thus, no doubt, in our mind, that the said dao was the weapon of offence. 23. Coming to the confessional statement of the accused, we find, on perusal of the evidence of PW-8 (Shri P.K. Sharma), who was, af the relevant time, Judicial Magistrate, at Golaghat, that on 30.7.94 (i.e., on the following day of the occurrence) at about 11.30 a.m., accused was produced before PW-8 for recording his confessional statement. 23. Coming to the confessional statement of the accused, we find, on perusal of the evidence of PW-8 (Shri P.K. Sharma), who was, af the relevant time, Judicial Magistrate, at Golaghat, that on 30.7.94 (i.e., on the following day of the occurrence) at about 11.30 a.m., accused was produced before PW-8 for recording his confessional statement. After warning and cautioning the accused, PW-8 kept the accused inside his chamber under the charge of a Home Guard personnel and gave him time for reflection. Though PW-8 has mentioned that he took care to see that no police officer was present in the Court or at any nearby place from where the accused could be seen or heard, the fact remains that the accused is a common villager and he could hardly distinguish between a man wearing uniform of police or a man wearing uniform of a Home Guard personnel. We, therefore, find it difficult to hold that PW-8 took adequate precaution to remove from the mind of the accused the feeling that he was completely free from the clutches of the police. This impression gains strength from the fact that PW-8 made no attempt to clarify to the accused either before giving him time for reflection or before recording his confessional statement that the accused would not be handed over to the police even if he chose not to make any confession. 24. The above position of law has been succinctly described in Shivappa-Vs-State of Karnataka, 1995(2) SCC 76 as follows:- "Besides administering the caution, warning, specifically provided for in the first part of sub-section (2) of Section 164, namely, that the accused is not bound to make a statement and that if he makes one, it may be used against him as evidence in relation to his complicity in, the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the Police or the like in case he declines to make a statement and be given the assurance that even if he declines to make the confession, he shall not be remanded to the Police custody." (Emphasis is supplied by us) 25. In the above view of the matter, we find it extremely hazardous to hold that the confessional statement of the accused can be treated as voluntary. In the above view of the matter, we find it extremely hazardous to hold that the confessional statement of the accused can be treated as voluntary. It needs to be pointed out that the questions printed in Form No. 84 is merely illustrative and not exhaustive in nature. Since it is solemn duty of the Magistrate to ensure that the confessional statement recorded is voluntary, it is essential for the Magistrate to keep the accused, for the purpose of reflection, in an environment, which can genuinely make accused feel that he is free from the influence of the police and for this purpose, it is really for the Magistrate to decide as to what cautions he shall give to the accused, what information he shall elicit from the accused and what steps he shall take to ensure that the accused feels free from the influence of the police. In this regard, PW-8 has, we find, failed to do the needful inasmuch as he placed the accused in the charge of a Home Guard personnel at the time of reflection and he did not even make it clear to the accused that irrespective of the fact whether the accused made confession or not, he would not be handed over, again, to the police. This apart, though PW-8 has recorded in Ext. 7 (confessional statement) that the accused did not complaint of any ill-treatment by police nor did he show any injury on his body, the fact remains that the record reveals that no question was put to the accused PW-8 to elicit as to how he had been treated by police, while he was in their custody. 26. In the face of the above disquietening features, it is impossible to confidently hold that the accused considered himself completely free from the clutches of the police and/or that the confession so made by the accused was voluntary. 27. In view of tjie fact that the voluntariness of confession in sine qua non for making the confession admissible in law, the first test, which a confessional statement has to pass through, is whether the confession is voluntary or not. If the confession is found to be voluntary, then, only the question will arise whether the confession is true and trustworthy. If the confession appears to the Court to be in voluntary, it must be kept excluded completely. If the confession is found to be voluntary, then, only the question will arise whether the confession is true and trustworthy. If the confession appears to the Court to be in voluntary, it must be kept excluded completely. In such a case, question of proceeding further to apply the second test (i.e. the test for determining the truthfulness or otherwise of the confession) does not arise at all. Shankaria-Vs-State of Rajasthan, ( AIR 1978 SC 1248 ) may be referred to in this regard. We, therefore, keep the confessional statement of the accused excluded from the purview of our consideration. 28. It is worth noticing that at the time when accused was examined by the learned trial Court under Section 313 Cr.P.C., he answered, inter alia, thus: "It is true that I killed. A quarrel took place at the paddy field regarding land. I cannot say what had happened when there was a scuffle over the dao." 29. If the evidence of PW-2 is believed, which we see no reason to disbelieve, it becomes crystal clear that the accused did not arise any alarm and had no altercation with Tepuram before giving Tepuram fatal blow with dao on his neck. In the face of such convincing evidence, we find it wholly impossible to attach any importance to the statement of the accused made under Section 313 Cr.P.C. that an altercation had taken place at the paddy field between him and his father and that while he had a scuffle over the dao with his father, he does not know how his father sustained injuries. The inference that Tepuram's death was not accidental derives great strength from the fact that the post-mortem report reveals that the cut injury sustained by Tepuram on his neck was caused with such a great force that not only major arteries and veins of the neck stood severed upto the cervical bone but that even the cervical bone had sustained fracture in the line of the wound. 30. For what have been discussed above, we find it safe to conclude that the accused intentionally caused his father Tepuram's death and thereby committed offence of murder punishable under Section 302 IPC. The conviction of the accused is, therefore, upheld and we see no reason to interfere with the sentence that the learned trial Court passed against him. 31. 30. For what have been discussed above, we find it safe to conclude that the accused intentionally caused his father Tepuram's death and thereby committed offence of murder punishable under Section 302 IPC. The conviction of the accused is, therefore, upheld and we see no reason to interfere with the sentence that the learned trial Court passed against him. 31. Send down the case record with a copy of this judgment and order to the learned trial Court for doing the needful. Send also a copy of this judgment and order to the accused-appellant.