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2003 DIGILAW 196 (GAU)

Rajen Boro v. State of Assam

2003-05-08

I.A.ANSARI, P.G.AGARWAL

body2003
JUDGMENT 1. Heard Mr. P.C. Borpujari, learned Counsel for the Appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 10.9.2002 passed by the learned Sessions Judge at Morigaon in Sessions Case No. 75/2000, whereby the accused Appellant was convicted for offence under Section 302 IPC and was sentenced to rigorous imprisonment for life with a fine of Rs. 1000/-, in default, further R.I. for Anr. two months. 3. The unfortunate incident which led to the death of Rupnath Boro occurred on 10th May, 2000, Rupnath Boro, the deceased, has married young sister of the accused Rajen Boro and he was residing with his in-laws in an adjacent house. On the fateful day, a quarrel took place between the Appellant and the deceased, whereupon the accused is alleged to have stabbed the deceased with a fishing spear called 'Hathkali' or 'Kuchia'. As a result of the above injuries on the chest the deceased Rupnath Boro died at the spot. On FIR being lodged by the brother of the accused, the police registered a case and the accused Appellant himself surrendered before the police and he was sent for recording judicial confession which was recorded by the P.W. 6, Mr. H.D. Bhuyan, Judicial Magistrate. 4. In Sessions Case No. 75/2000 the Appellant was charged for offence under Section 302 IPC and during trial, as many as, 8 witnesses were examined. On conclusion of the trial, the learned trial Judge convicted the Appellant under Section 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs. 1000/-, in default, further imprisonment for two months. Hence, the present appeal. 5. Kasta Boro, P.W. 1, is the informant of this case. He has deposed about the quarrel that took place between the accused and the deceased and after the incident, on being informed, he came to the place of occurrence and found the deceased lying dead, whereupon, he lodged the FIR. 6. Smti. Mamani Boro, P.W. 2, is the wife of the deceased and she has also deposed about the death of her husband on the date of occurrence. P.W. 4, Smti. Pua Boro, is Anr. co-villager. 6. Smti. Mamani Boro, P.W. 2, is the wife of the deceased and she has also deposed about the death of her husband on the date of occurrence. P.W. 4, Smti. Pua Boro, is Anr. co-villager. It may be mentioned that all these three witnesses, P.W. 1, P.W. 2 and P.W. 4 were declared hostile by the prosecution during trial as they did not support the entire prosecution story. PWs 2 and 4 had even tried to make out a story that during the quarrel, the deceased fell down on a fence and sustained the fatal injuries. 7. So far the death of the deceased on the date of the occurrence as a result of the injuries sustained is concerned, the same is not disputed and it is supported by the medical evidence on record. P.W. 3 is Dr. Padma Singh Bordoloi, who held the autopsy over the dead bodies and found as follows: External appearance- One middle aged male person with clotted blood in nose and mouth of average built. One entrance point of perforating injury above five fingers of right nipple 1/2" circular sharp cutting injury was seen. Thorax Walls, ribs and cartilages- NA.D. pleurae, larynx and trachere. Right lung and left lung-Full of Blood clot in cavity of lung and semi clotted blood one 1/2" circular injury thorough the right lung perforating the diaphragm perforating the gastroesophageal junction. In the opinion of the Doctor the injuries were ante-mortem and the cause of death was due to severe blood loss caused by Hypovolemic shock. 8. As stated above, we find that the three prosecution witnesses, who are the members of the same family, have now tried to take a U turn by not supporting the prosecution to the hilt. They have admitted about the quarrel and the death of the deceased on the date of occurrence but P.W. 2 and P.W. 3 have tried to make out a case, as if this is a case of accident. They have been declared hostile by the prosecution and their earlier statement was put to them. We also perused the enclosed report, Ext. 4, brought on record by the I.O. and the FIR altogether disclose a different story of assault. We, therefore, find force in the submission that the family who have lost one member, do not want to lose Anr. We also perused the enclosed report, Ext. 4, brought on record by the I.O. and the FIR altogether disclose a different story of assault. We, therefore, find force in the submission that the family who have lost one member, do not want to lose Anr. in this prosecution and hence the 'U' turn by the three prosecution witnesses. 9. The question that arises for determination at this stage is, 'Is it a case of accidental death, as defence tried to prove on it is a case of homicide?' We find that the medical evidence on record was not challenged at all as the defence declined to cross-examine P.W. 3. From the evidence of P.W. 3 we find that as a result of the impact of the injury oesophagus was perforated and the entry point was 1/2" circular perforating injury. A bamboo fencing would not cause such 1/2" circular injury. The right lung was perforated and even diaphragm got perforated. From the above, we find that the evidence of P.W. 2, who was turned hostile by the prosecution, that the deceased sustained injury by falling on the bamboo fencing is a complete lie and this is a case of homicide. 10. As the main prosecution witnesses have turned hostile, the conviction has been entered upon on the basis of the confessional statement recorded by P.W. 6, Ext. 2 is the said confessional statement. The incident took place on 10.5.2000 and the accused has been produced before the Court on 11.5.2000 with, a prayer to record his confessional statement. Thereafter, he was sent to judicial custody where from he was produced again before the Magistrate on 12.5.2000 at 11.00 a.m. He was cautioned and given some more time for reflection and the confessional statement was recorded at 4.00 p.m. Thus, we find that sufficient opportunity was given to the accused for reflection. P.W. 6 was cross-examined at length and from the evidence we find that she has taken all necessary precaution and recorded the confessional statement, as required under the Rules. During trial, the question as to why the accused wanted to confess was put to the accused Appellant and the answer given by the Appellant was recorded. The recording Magistrate has also noted that at the time of recording confession no mark or injury was seen on the body of the accused. During trial, the question as to why the accused wanted to confess was put to the accused Appellant and the answer given by the Appellant was recorded. The recording Magistrate has also noted that at the time of recording confession no mark or injury was seen on the body of the accused. The relevant portion of the confessional statement reads as follows: My name is Rajen Boro. My age is 30 years. I am an inhabitant of village Jatibangfar. My elder sister, Mamani Boro, had been married to deceased Rupnath Boro. After the marriage my parents had kept their son in law, Rupnath Boro, with them at their residence. After the death of my parents we had started living separately and with his family my brother-in-law had been living near my house. Since about a year back my brother-in-law had been in the habit of picking quarrel with me after getting drunk. As things had been going on like this, he started a quarrel with me in a drunken state around 12 noon on 10.5.95. Enraged, I then took a 'hatkali' (A long spike with a handle-Translator) and stabbed him in the chest with that. My elder sister then helped my brother-in-law to her house. I surrendered at Jagiroad Police Station with the 'hatkali'. Later on, at the police station, the police informed me that my brother-in-law had died. This is all I have to say. 11. Considering the confessional statement, Ext. 2, and the evidence on record, the trial court held that the said confessional statement was voluntarily made. It was recorded on 12.5.2000 and the accused for the first time retracted the same at the time of examination under Section 313 Code of Criminal Procedure on 5.9.2002, i.e. after more than two years. The retraction is also in the following language: I confessed at the instance of the police In the confessional statement, Ext. 2, it has been certified by the recording Magistrate that there is no complaint regarding ill-treatment or pressure. We also find from the evidence of the I.O. that the accused in the instant case had surrendered himself before the police station along with the weapon of assault and also made a clean breast. Hence, where is the need for putting pressure? We also find from the evidence of the I.O. that the accused in the instant case had surrendered himself before the police station along with the weapon of assault and also made a clean breast. Hence, where is the need for putting pressure? Moreover, the detail nature of confession, as quoted above, will show that the earlier part of the confession regarding the family situation and the other matters were in the exclusive knowledge of the accused only and there is no scope for police to tutor the above details to the accused. 12. Upon giving our anxious consideration to all aspect of the matter we have no hesitation to hold that the confessional statement was made voluntarily, notwithstanding the retraction made at the time of recording statement under Section 313 Code of Criminal Procedure. In the case of Bhagwan Singh v. The State of Punjab AIR 1952 SC 214 , the Apex Court has held that the burden is on the accused to prove that the confessional statement was obtained by thereat, duress or promise. The above ratio of law was reiterated by the Apex Court in the Case of K.I. Pavunny v. Asstt. Collector(HQ), C.E.C. 1997 (3) SCC 721 . In a recent case of State of Tamil Nadu v. Kutty alias Lakshmi Narasimhan 2001 Cri.L.J. 4168, the Apex Court has held: Learned Judges of the High Court declined to act on the said confession mainly for two reasons. First is that the confession was retracted by the maker thereof and second is that the recovery of articles was made prior to the confession. We may state at the outset itself that both reasons are too insufficient for overruling the confession. It is not the law that once a confession was retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. To retract from the confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard. 13. The second requirement of law for basing conviction on confession is that the confessional statement must be true or trustworthy. The law is more or less well settled that where the first requirement of voluntariness is satisfied, the Court must, before acting upon the confession reach the 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 canon of universal application. Even so, one long method which may be useful in most cases for evaluating cases may be reiterated. The Court should carefully examine the confession and compare it with the rest of the evidence, circumstances and probabilities of the case and if the confession appears to be a probable catalogue of events and natural events with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. In order to find out the truthfulness of the confession, let us examine the relevant portion of Ext. 2, as quoted above. The relationship between the accused and the deceased and other witnesses has not been disputed by the prosecution, on the contrary, it has been admitted by the hostile witnesses. P.W. 1, the informant has also stated in the FIR and the deposition regarding the quarrel between the accused and the deceased. The death of the deceased on the date of the occurrence, as stated by the accused, stands fully established. The statement of the accused that he appeared before the police station alongwith the weapon of assault stands supported by the evidence of Investigating Police Officer. The death of the deceased on the date of the occurrence, as stated by the accused, stands fully established. The statement of the accused that he appeared before the police station alongwith the weapon of assault stands supported by the evidence of Investigating Police Officer. P.W. 8, Babul Boro deposed that the accused voluntarily appeared before the police station with a 'Pocha' that he used at the time of occurrence, and he seized the same. The evidence of P.W. 8 on this point was not challenged. Learned Counsel for the defence has further referred to the evidence of P.W. 5, Mohan Daimari, who has deposed that the seizure was made at the residence of the accused. P.W. 5 is no doubt the seizure witness but he has also not deposed the truth. The witness admits his signature on Ext. 1, the seizure list. We have perused, Ext. 1, wherein it has been categorically stated that the seizure was made at the police station only and as the evidence of P.W. 8 has not been challenged, we hold that the material exhibit, Ext. 1, was seized at the police station and not at the residence of the accused, as stated by P.W. 5. The seizure list, therefore, corroborates part of the statement in Ext. 2. 14. We, Thus, find that the confessional statement of the accused stands corroborated by the other facts and circumstances of the case, including the evidence of the hostile witnesses, which can be relied upon to the extent possible and in all probability the incident had taken place in the manner in which the accused had confessed in his statement. 15. Learned Counsel for the Appellant has referred to the observation of the Apex Court in the case of Chandrakant Chimanlal Desai v. State of Gujarat (1992) 1 SCC 473 , wherein the Apex Court relying on the earlier observation in the case of Kashmira Singh v. The State of Madhya Pradesh AIR 1952 SC 159 has observed: In consideration the reliability of this confessional statement the High Court had not kept in view the observations of this Court in Kashmira Singh v. State of M.P. In this decision the Supreme Court had observed: The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. The High Court has on the other hand made this confessional statement as the basis and has then gone in search for corroboration. It concluded that the confessional statement is corroborated in material particulars by prosecution witnesses without first considering and marshalling the evidence against the accused excluding the confession altogether from consideration. As held in the decision cited above only if on such consideration on the evidence available, other than the confession a conviction can safely be based then only the confession could be used to support that belief or conclusion. The observation of the Apex Court in Kashmira Singh (supra) was in respect of the Section 30 of the Evidence Act, that is, for using the confession of a co-accused and hence, the decision in Kashmira Singh(supra) or Chandrakanta Chimanlal Desai (supra) are not relevant for our purpose. In the present case the prosecution has sought conviction on the basis of confession of the accused himself and we may refer to the various decisions of the Apex Court: 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. 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. "Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 . "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. It can not 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." Pyarilal AIR 1963 SC 1094 . 16. 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. 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 Code of Criminal Procedure retracted the confession, the confession could be accepted as voluntary. AIR 1978 SC 1248 . 17. In K.L. Pauni (supra) the Apex Court held that in a criminal trial punishable under the provisions of the IPC, it is now well settled legal position that confession can form the sole basis for conviction. 18. In view of what has been stated above and considering the fact that the confession, Ext. 2, was voluntarily made and it is true, we hold that it was the accused who assaulted the deceased which led to his death. 19. 18. In view of what has been stated above and considering the fact that the confession, Ext. 2, was voluntarily made and it is true, we hold that it was the accused who assaulted the deceased which led to his death. 19. The next submission of the learned Counsel for the Appellant is that there was no intention on the part of the accused Appellant to cause the death and the incident had taken place at the spur of moment when a quarrel took place between the accused and the deceased. The Appellant has sought protection under Exception 4 of Section 300 IPC, which reads as follows: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. 20. From the evidence on record we find that the deceased accused were close relations and as a matter of fact, the deceased was given shelter by the family of the accused Appellant as he had married the younger sister of the accused. There was no animus and no other motivation has been established on the part of the accused to kill his young brother-in-law. The confessional statement shows that the deceased used to be a drunkard and used to quarrel and on the ill-fated day the incident took place at the heat of the moment. Further, it was a case of single injury and the accused assaulted the deceased with Material Ext. 1. Considering the parameters laid down by the Apex Court in the case of Mahesh Balmiki v. State of M.P. 2000 (1) SCC 319 , we hold that the intention to cause the death cannot the inferred in the present case and the act of the accused would constitute an offence under Section 299 IPC, punishable under Section 304 Part-II IPC. Accordingly, the conviction is altered and modified to one under Section 304 Part-II IPC. 21. We have heard learned Counsel for both sides as regards the sentence. We sentence the accused Appellant to rigorous imprisonment for 3 years. The period of sentence undergone by him shall be set off under Section 428 Code of Criminal Procedure. Send a copy of the judgment and order to the Superintendent of Jail, Morigaon. Send down the records.