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Gauhati High Court · body

2002 DIGILAW 328 (GAU)

State of Arunachal Pradesh v. Tayor Jampen

2002-08-08

I.A.ANSARI

body2002
I.A. ANSARI, J.: This reference under Regulation 30(1) of the Assam Frontier (Administration of Justice) Regulations, 1945, has arisen out of the judgment and order, dated 16.5.2001, passed by the learned Deputy Commissioner, West Siang District, Along, in Sessions Case No. GR. 214/90, which arose out of Mechukha Police Station Case No. 18/90, convicting the accused, Tayor Jempen, under Section 304 (Part 1) and Section 436 of the IPC and sentencing him to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 5,000/- and in default, to suffer rigorous imprisonment for a further period of one year. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as" follows :- On 12.09.90, accused Tayor Jampen was staying at the house of his father-in-law, viz., deceased Tanya Kochung of Village Yorko, under Mechukha Police Station, West Siang district. Besides accused Tayor Jampen and the deceased, Smt. Yanne Jempen, wife of accused Tayor Jampen and their child were present, on 12.09.90, at the said house, At night, when Smt. Yanne Jampen woke up, she found about half of their house ablaze with fire and her father jumping out of the window. Smt. Yanne Jampen along with here child also jumped out of the window and saw accused (Tayor Jampen) shooting her father with a gun. After shooting the deceased accused Tayor Jampen chased his wife aiming to shoot her too, but she ran away to the jungle with their child and the accused fled away from the scene of crime. On the following day, i.e. on 13.09.90, Lingdung Kochung, son of the said deceased, on coming to know about the said occurrences, at Mechukha Hospital, where Longdung's son stood admitted for treatment, lodged, on 13.9.90 itself, a written Ejahar (Exh. 1) with Extra Assistant Commissioner, West Siang district, Mechukha. Based on this Ejahar and treating the same as First Information Report, Mechukha P.S. Case No. 18/90 under Sections 302/436/34 IPC was registered. During the course of investigation, police held inquest over the said deadbody and also got autopsy performed on the same. Accused Tayor Jampen was also apprehended and on being produced before Judicial Magistrate, he made a judicial confession and the same was recorded under Section 164 Cr.P.C. On completion of investigation, police laid charge sheet against accused Tayor Jampen under Sections 302/436/34 IPC. 3. Accused Tayor Jampen was also apprehended and on being produced before Judicial Magistrate, he made a judicial confession and the same was recorded under Section 164 Cr.P.C. On completion of investigation, police laid charge sheet against accused Tayor Jampen under Sections 302/436/34 IPC. 3. During trial, when charges framed under Sections 302 and 436 read with Section 34 IPC were explained to the two accused aforementioned, both of them pleaded not guilty thereto. 4. In all, prosecution examined six witnesses including the Investigating Officer. The accused were, then, examined under Section 313 Cr.P.C. In his examination aforementioned, accused Tayor Jampen denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 5. At the conclusion of the trial, learned trial Court held accused Taling Jampen not guilty of the charges framed against him and accordingly acquitted him (Taling), but on finding accused Tayor Jampen guilty of the charges framed Under Sections 320 (Part 1) and 436 IPC, learned trial Court convicted accused Tayor Jampen accordingly and passed sentence against him as hereinabove mentioned. 6. The moot point, which fails for determination in this appeal, is this : whether the findings of guilt arrived at by the learned trial Court are justified on the basis of the evidence on record and law relevant thereto? 7.1 have carefully perused the relevant records including the impugned judgment and order. I have heard Mr. N. Grayu, learned Amicus Curiae, and also Mr. N. Lownag, learned Public Prosecutor, Arunachal Pradesh. 8. It may be noted, at the very out set, that out of the six witnesses examined by the prosecution, PW 1 (Shri Lingdung Kochung) is a reported witness and informant of this case, PW 2 (Smt. Yanne Jempen) has been examined as the sole eye witness to the alleged occurrence, PW 3 (Smt. Yochop Kochung), daughter-in-law of the said deceased, is a reported witness, PW 4 (Shri C. Bordoloi) is the Judicial Magistrate, who recorded the judicial confessional of accused (Tayor Jampen), PW 5 (Dr. C.L. Manchay) is the one, who performed post mortem examination on the deadbody of the said deceased and PW 6 (Shri Taku Halley) is the Investigating Officer of this case. 9. Let me, first, deal with the evidence of PW 5 (Dr. C.L. Manchay). C.L. Manchay) is the one, who performed post mortem examination on the deadbody of the said deceased and PW 6 (Shri Taku Halley) is the Investigating Officer of this case. 9. Let me, first, deal with the evidence of PW 5 (Dr. C.L. Manchay). According to this witness, on 13.9.99, at about 1200 hours, he performed post-mortem examination on the deadbody of deceased Tanya Kochung and found, on external examination, as follows :- "A lacerated wound in the right hip-joint lateral side 3"x3"x3" (inch) size round over the shape. Bruises :- Size 1x1 m.m. round/oval on the chest 2 Nos. on left 2 Nos. on right and on the abdomen 35 Nos. in the left thigh 8 Nos. in the left hand 2 Nos. Muscle/bones and joints :- There is a depression on right hip-bone. More detailed description of the injury:-There is a lacerated wound of size 3"x3"x3" (inch) round, oval in shape, over the right hip-joint. On dissection, it was found fractured (depressed type) and from that fractured site, 40(forty) pellets of cartridges were taken out. No pellets were found (sic, recovered) from other parts of the body". 10. It is in the evidence of PW 5 that in his opinion, the cause of death was gun shot injury, which was ante-mortem in nature and sufficient to cause death and that the injuries could have been caused by M.Ext.1 (i.e., the gun). PW 5 has also deposed that since from a single injury, as many as 40 number of pellets were recovered, he concluded that the deceased was shot from close range. It is also in the evidence of PW 5 that the death had occurred about 6 to 10 hours before he performed the post-mortem examination. 11.1 have closely scrutinized the cross-examination of PW 5 at the hand of the defence, but I do not find that the defence elicited anything to show that his evidence with regard to his findings and/or opinion is incorrect and/or untrue. This apart, I do not notice anything inherently incorrect and/or untrue in the evidence of PW 5. It can, therefore, be safely concluded that Tanya Kochung died as a result of gun shot injury fired from close range. 12. Keeping in view the above aspects of the medical evidence on record, let me, now, turn to the evidence of PW 2 (Smt. Yanne Jampen). It can, therefore, be safely concluded that Tanya Kochung died as a result of gun shot injury fired from close range. 12. Keeping in view the above aspects of the medical evidence on record, let me, now, turn to the evidence of PW 2 (Smt. Yanne Jampen). According to her evidence, the deceased was her father and accused Tayor Jampen is her husband. As regards the occurrence, PW 2 has deposed that on 12.9.90, after her dinner, she, her father, her husband and their small child went to sleep, but when she woke up after sometime, she saw about half of their house already burnt and her father jumping out of the window. It is in the evidence of PW 2 that she too rushed towards the door and, on finding the same closed from out side, she also followed her father and, on jumping out of the window, she saw the accused firing with a gun at her father twice. On witnessing her father being shot at, PW 2, holding her baby in her hands, ran away, but after shooting her father, accused followed her also with the same gun. It is also in the evidence of PW 2 that the accused shouted that he had killed her father and set fire to their house and that he would kill her and also her brother, Londugn Kochung, who was in the hospital at the relevant time. 13. PW 2 has deposed that she ran away to the jungle with her baby and it was only on the next day morning that she came back to her house, but she did not know where the accused had fled away. PW 2 has also deposed that the accused used to serve in 11 Assam Rifles at the time of the occurrence. PW 2 has further deposed that out of fear, she did not disclose to the police that her husband had killed her father and set fire to their house, because her husband had threatened to kill her, her child and her brother. 14. In her cross-examination, PW 2 has explained that because of the threats given by the accused, she told the police that Dorjee Khandu Chukla might be involved in the killing. 14. In her cross-examination, PW 2 has explained that because of the threats given by the accused, she told the police that Dorjee Khandu Chukla might be involved in the killing. PW 2 has also clarified in her evidence that since the house was burning, there was sufficient light for her to see her husband shooting her father, because her husband had fired the gun from a close distance of about 5 metres. PW 2 has also clarified in her evidence that her father had shouted asking her to run away from the site as he was being killing and it was then that she had actually run away from the site. 15. Close on the heels of the above evidence of PW 2, PW 3 (Smt. Yachop Kochung) has deposed that the said deceased was her father-in-law, she knows the accused and at the relevant time, she used to live in the same house in which the deceased used to live. 16. As regards the occurrence, PW 3 has deposed that on 12.9.90, she was, at Mechukha, for treatment of her son, who was ill, and at the time of her departure from home, her father-in-law was present in the house along with PW 2 and accused Tayor Jampen, but on the next day i.e. on 13.9.90, at about 7.30 a.m., when she reached her house, she found that their house stood burnt into ashes, she met PW 2, who informed her that Tayor Jampen (i.e., the convict) had set fire to their house and also shot her father. It is in the evidence of PW 3 that she saw the dead-body of her father-in-law lying riddled with bullets in abdomen and hip. It is also in the evidence of PW 3 that all their belongings kept in the said house had been burnt in the fire. 17.1 have closely scrutinized the cross-examination of PW-2, but I do not notice anything in her cross-examination to show that what she has deposed, as indicated above, is untrue of false. In fact, there is no suggestion given to her that what she has deposed in the Court is not true. Since nothing has been elicited from the cross-examination of PW 2 to show that her evidence cannot be relied upon, I find it extremely difficult to ignore her evidence and/or not to place reliance upon her evidence. 18. In fact, there is no suggestion given to her that what she has deposed in the Court is not true. Since nothing has been elicited from the cross-examination of PW 2 to show that her evidence cannot be relied upon, I find it extremely difficult to ignore her evidence and/or not to place reliance upon her evidence. 18. Coupled with the above, evidence of PW 3 shows that when she reached home in the morning of the previous day of the occurrence, she found their house gutted into ashes and her father-in-law's dead body riddled with bullets lying there and that PW 2 informed her (PW 3) that it was her husband, Tayor Jampen, who had set fire to their house and also shot her father. 19. It may be noted that there is nothing in the cross-examination of PW 3 to show that any part of her evidence is false. There is, therefore, no escape from conclusion that on arrival at the scene of occurrence, PW 3, as indicated above, was informed by PW 2 that it was accused Tayor Jampen, who had killed her father, Tanya Tachung. 20. Except for the fact that there is belated disclosure of the name of accused Tayor Jampen, there is really no other reason, which can make a Court discard the evidence of PW 2 as unsafe inasmuch as there is nothing on record to show that accused Tayor Jampen and PW 2 had strained relation with each other nor is there any evidence on record to show that PW 2 had any particular reason, which could have prompted her to give false evidence against the accused aforementioned. 21. Before proceeding any further, let me take into consideration the evidence of PW 4 (Mr. C. Bordoloi), Extra-Assistant Commissioner (Judicial) - Judicial Magistrate, First Class, Along, who admittedly, recorded the confessional statement of accused Tayor Jampen. 21. Before proceeding any further, let me take into consideration the evidence of PW 4 (Mr. C. Bordoloi), Extra-Assistant Commissioner (Judicial) - Judicial Magistrate, First Class, Along, who admittedly, recorded the confessional statement of accused Tayor Jampen. According to the evidence of this witness, on 16.10.90, on receiving an application from police requesting him to record confessional statement of the accused in connection with Mechukha Police Station case No. 18/90 aforementioned, PW 4 sent the same to the Deputy Commissioner, Along, for order(s) whereupon the Deputy Commissioner, Along, vide his order, dated 25.09.90 endorsed Mechukha Police Station Case No. 18/90 aforementioned to PW 4 for recording confessional statement of the accused and on perusal of the said order, PW 4, on 29.10.90, asked the police to produce the accused from judicial custody for recording confessional statement of the accused and the accused was accordingly produced before PW 4 at 11 A.M. on 29.10.90. It is in the evidence of PW 4 that PW 4 informed the accused that he (accused) was not bound to make confession and also told him that PW 4 is not a police officer, but a Magistrate and if he (accused) confessed, it would be used against him (accused) and that PW 4 also asked the accused to wait in the court/ chamber of PW 4 and think peacefully over the confession. It is also in the evidence of PW 4 that he (PW 4) satisfied himself that there was no police officer present in the said court/office chamber. On the same day, i.e. on 29.10.99, at 1400 hrs. PW 4, according to his own evidence, again, asked the accused if he (the accused) was ready to make a confession and also told the accused, once again, that he (PW 4) is not a police officer but a Magistrate and that the accused was not bound to make a confession, but if he did so, it would be used as evidence against him and that the accused should not say anything, which others had told him to say as he was at liberty to say whatever he desired to say and that the accused should say nothing, which was untrue. It is in the evidence of PW 4 that after being satisfied that the accused was making the confession voluntarily and he was repenting, PW 4 recorded confessional statement of the accused and on completing the same, at 1500 hrs, sent back the accused to judicial custody, Ext-2 being the said confessional statement of the accused, P/Ext-2(l) to 2(7) being his own signatures and P/Ext-2(8) to 2(14) being the signatures of the accused. 22. In his cross-examination, PW 4 clarified that he had not appended the memorandum/certificates at the end of the confessional statement as is required under Section 164 Cr. PC. 23. The question, therefore, is whether the omission to furnish a certificate about voluntariness and truthfulness of the said confessional statement is sufficient to discard the evidence of PW 4? 24. It needs to be borne in mind that mere omission to give certificate/ memorandum at the end of a judicial confession recorded under Section 164 Cr. PC may be a mere omission in form, but such omission, in the light of the facts revealed in a given case, may become an omission in substance. If the questions put to the accused and the manner in which recording of the confession is done induces confidence in the mind of the Court that the confession made by the accused is voluntary and true, the mere omission on the part of a Judicial Magistrate to give certificate of voluntary and truthful character of the confession may not make the Court discard the judicial confession so recorded, but if the manner of recording of the confession coupled with the questions put to the accused and/or informations elicited by him from the accused do not completely satisfy the Court that the confession recorded was voluntary and true, omission to give memorandum/certificate may become a substantial omission compelling the Court to discard the same. 25. In the case at hand, I find that the learned Magistrate merely acted upon the prescribed form, meant for recording judicial confession, in a mechanical way without understanding and/or appreciating the correct meaning, spirit and ambit thereof inasmuch as not even one question was put to the accused to elicit from him as to when, how and why the accused came forward to make judicial confession. Similarly, according to the evidence of PW 4 himself, police submitted to him an application for recording judicial confession of the accused as early as on 16.10.90 and he recorded the judicial confession as late as on 29.10.90. This shows that the accused was arrested, at least, on or before 16.10.90 and according to the evidence of PW 4 himself, the accused was produced on the day of recording of the judicial confession (i.e. on 29.10.90) at 1100 hrs., but when the accused was asked, as per Ext-2, about the length of time during which he had remained under the control of the police, the accused, merely said that he had been under custody since 1100 hrs. on 29.10.90, which is wholly incorrect inasmuch as accused remained in the custody of the Court and not of the police between 1100 hrs and 14 hrs on 29.10.90. This, again, shows complete in application of mind by PW 4 inasmuch as he failed to notice that. the information given by the accused was factually incorrect, which indicates that the accused had not really understood meaning of the question put to him. This apart, no such question, as indicated above, was put to the accused to elicit from him as to why he had come forward to confess and yet without putting any such question, PW 4 has deposed that he was satisfied that the accused was repenting and was desirous of making confession. How PW 4 came to such a conclusion is not discernible from the evidence on record. The conduct of PW 4 in recording the confessional statement, thus, appears to be completely mechanical and, sadly enough, no real and meaningful effort appears to have been made by him to ascertain if the confession made by the accused was voluntary. In fact, I find that Ext-2 does not reveal that the accused was asked as to how he was treated in the police custody or whether he had been beaten and/ or tortured by the police, while he was in their custody nor does Ext-2 reveal that the accused was told that even if he chose not to make confession, he would not be handed over to police. Thus, Ext-2, which is the prescribed form used by PW 4 for the purpose of recording confessional statement of the accused, does not inspire confidence of this Court and I have no hesitation in holding that the evidence of PW 4, coupled with the contents of Ext-2, do not satisfactory prove that the accused had made the confession voluntarily and in this view of the matter, omission to furnish memorandum/certificate is not a mere omission of form; rather, this omission, in the face of the evidence on record, is a material omission substantially affecting the credibility of the recording of confession. 26. Coming to the confessional statement, I notice that the accused stated thus: "I married the daughter of Tanya Kochung (now deceased). I paid bridal price as usual. I have a daughter from her. I was posted at Tuting. I was sent for training to Dimapur. I could not keep family with me as the father of my wife refused to send his daughter with me. This time, I came on leave again to try to take my wife. I purchased one pig for Rs. 17007-and gave it to my father-in-law. On 12.9.90,1 along with my father went to my father-in-law's place to discuss about the matter. The father-in-law again refused to send his daughter with me. Instead he wanted to marry her (sic, give her in marriage) to another man at Tato. My wife spoke to me about this plan of her father. She was not interested to go with another man. She wanted to stay with me. We decided to come to Along by helicopter and then to Tuting via Mohanbari. The father-in-law did not agree. Still my wife came with me to Mechukha. (My father-in law's house was at a distance of about 2 K.M. from EAC's HQ, Mechukha). There was no sortie. So he had to stay in the house of Shri Lika Raja, VLW and I went to AR Camp. But I came to know that my father-in-law sent information to the other man at Tato and took away my wife from Mechukha. I thought this was the last chance to get my wife or to lose her. At night I went to my father-in-law's house, set fire to it and killed him with his own gun. Nobody awakened (sic, was awake) when I took the gun to kill my father-in-law. I thought this was the last chance to get my wife or to lose her. At night I went to my father-in-law's house, set fire to it and killed him with his own gun. Nobody awakened (sic, was awake) when I took the gun to kill my father-in-law. After that I came to my house at Karte and then went to the jungle. My wife was also with me in the jungle". 27. It is worth noticing that according to the said confession, nobody saw the accused killing his father-in-law nor did any one see him setting fire to the house. This part of the confessional statement of the accused is belied by the evidence of PW 2 inasmuch as according to the evidence of PW 2, she had seen her father being shot by the accused and it was her father, who had asked her to run away and that the accused had followed her to kill her too with the same gun. 28. Thus, there is glaringly noticeable inconsistency between confessional statement and the eye witness's account of the occurrence. Since I have already held that the evidence of PW 2 inspires confidence and since her evidence belies confessional statement to the accused, it is yet another reason, which compels this Court to hold that as the confessional statement of the accused contains streaks of falsehood, the same can not really be treated as a confessional statement. There is, therefore, no escape from the conclusion that the said confessional statement was not admissible in law inasmuch as same was neither .voluntary nor true. However, notwithstanding the fact that this Court does not find it safe to place reliance on the judicial confession, fact remains that the evidence of PW 2, as already discussed above, inspires complete confidence and I find no reason to discard her evidence and when her evidence is believed, which I see no reason to disbelieve, there remains no room for doubt that it was none but the accused, who had set fire to the house of his father-in-law and also shot him dead. 29. Because of what have been discussed above, I am firmly of the view that the findings of guilt arrived at against the accused and/or his conviction for offences committed under Section 304 (Part I) and Section 436 I.P.C. are wholly justified and do not warrant any judicial interference. 29. Because of what have been discussed above, I am firmly of the view that the findings of guilt arrived at against the accused and/or his conviction for offences committed under Section 304 (Part I) and Section 436 I.P.C. are wholly justified and do not warrant any judicial interference. Even the quantum of sentence passed against the accused does not, in my firm view, deserves interference. 30. In the result, and for the reasons discussed above, the conviction of accused Tayor Jampen and the sentence passed against him are upheld and confirmed. 31. Send back forthwith the L.C.R. along with a copy of this judgment and order to the learned trial Court.