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2004 DIGILAW 419 (CAL)

BUDHRAI MURMU v. STATE OF WEST BENGAL

2004-06-28

GORACHAND DE, SANKAR PRASAD MITRA

body2004
GORACHAND DE, J. ( 1 ) THIS appeal by the convicts Budhrai Murmu and Ganesh murmu is directed against the order of conviction dated 23. 2. 93 and sentence imposed on 26. 2. 93 in Sessions Trial No. 260/92 (Sessions Case No. 6/92) arising out of Habibpur P. S. Case No. 57 of 1989 dated 22. 9. 89 (G. R. No. 1120/89 ). By the said judgement, the learned Sessions Judge, Malda, found both the appellants guilty under section 302/34 of the IPC and under section 201 of the ipc and convicted them thereunder and sentenced each of them to suffer R. I. for life for the offence under section 302 of the IPC and to pay a fine of rs. 2000/-, in default, to suffer imprisonment for one year and for the offence ' under section 201 of the IPC to suffer R. I. for two years and to pay a fine of rs. 1000/-, in default, to suffer imprisonment for six months more, with direction that both the sentences were to run concurrently. ( 2 ) BY the said judgement, the learned Sessions Judge found the other two accused persons i. e. Hopna Tudu and Hudan Murmu not guilty to the charges and accordingly acquitted both of them. ( 3 ) THE prosecution case in brief is that one Teri alias Mati, by relation as 'pisima' (father's sister) of the appellants Budhrai Murmu and Ganesh Murmu, was found missing for sometime for which the Prodhan of the local Gram panchayat Shri Kalyan Hansda called both the appellants to his house when both of them made extra-judicial confession that they about 17 days ago on wednesday dated 6. 9. 89 took Mati Murmu to their house from Bahadurpur hat and after the dinner when Mati was sitting in the Verandah of the appellant ganesh, both Ganesh and Budhrai killed Mati in their courtyard by strangulation at about 8 p. m. Thereafter both of them wrapped the dead body with a mat prepared of date-palm leaves and carried the dead body to the marshy land at Kiolkhari and buried the dead body there. Before burying, the belly of the dead body was split up by means of a kata brought from the house of the appellant Ganesh for the purpose of avoiding swelling of the body. Before burying, the belly of the dead body was split up by means of a kata brought from the house of the appellant Ganesh for the purpose of avoiding swelling of the body. At the time of this extra-judicial confession, Subodh Adhikari (P. W. I), Daniel Murmu (P. W. 2) and Tobius Tudu (P. W. 6) were also present. Accordingly, both the appellants were taken to Habibpur Police Station. The statement of Kalyan hansda (P. W. 5) was reduced into writing in the police station and on this basis Habibpur P. S. Case No. 57/89 dated 22. 9. 89 was started. In course of investigation, it was ascertained that the victim Mati for the last three years was residing with Hopna Tudu as husband and wife after the death of Hopna's wife and that she was the owner of some landed properties. ( 4 ) ON the basis of the statement of the appellants, the dead body was recovered from Kiolkhari and articles were seized including iron kata by which the belly of Mati was alleged to have been split up. Hopna Tudu and Hudan murmu were arrested and witnesses were examined and after collecting post-mortem report, chargesheet was submitted against all the four accused persons on 22. 4. 90. ( 5 ) THE case was committed to the Court of Session where charge under section 302/34/201 of the IPC was framed against both the appellants on 25. 11. 92 and on the same day, the charge under section 302/34 of the IPC was also framed against the other two accused persons viz. Hopna Tudu and Hudan murmu. All the accused persons pleaded not guilty to the charge and accordingly 10 witnesses including the I. O. were examined on behalf of the prosecution. However, no defence witness was examined and the defence case as can be ascertained from the trend of cross-examination and the replies given in course of examination under section 313 of Cr. PC is that they are innocent. The learned sessions Judge after analysing the evidence on record and the circumstances, however, found both the appellant guilty and sentenced them in the manner indicated hereinabove and acquitted the accused Hopna Tudu and Hudan murmu. ( 6 ) IN course of hearing of this appeal, practically two law points were highlighted by Mr. Bhattacharya, learned counsel appearing for the appellants. ( 6 ) IN course of hearing of this appeal, practically two law points were highlighted by Mr. Bhattacharya, learned counsel appearing for the appellants. His first contention is that extra-judicial confession being very weak piece of evidence, no reliance should be placed on it specifically when there was no corroboration to such extra-judicial confession by the other witnesses viz. P. W. 1, p. W. 2 and P. W. 6. Secondly, it is argued that recovery of the weapons of offence viz. iron kata was not in accordance with law and it is inadmissible in evidence in view of the provision of section 27 of the Evidence Act. It is also contended that the recovery of the dead body was not done on the basis of the statement of the accused persons. So, Mr. Bhattacharya contended that the charges under section 302/34 of the IPC and under section 201 of the IPC were not established against the appellants for which they are liable to be acquitted. ( 7 ) MR. Bhattacharya also relied on a Division Bench judgement of this Court in the case of Nibaran Ghosh vs. State, reported in 1998 C Cr. LR (Cal) 9, in support of his contention that extra-judicial confession is not only a weak piece of evidence but also no reliance is to be placed on such confession if the evidences of the witnesses are contrary. Mr. Bhattacharya also placed reliance on three-judges Bench decision of the Apex Court in the case of State of Punjab vs. Gurdeep Singh, reported in 2000 C Cr. LR (SC) 56, in support of his contention that if there is an unusual delay in making the confessional statement and if it is found that such confessional statement is neither corroborated by evidence nor it is reliable, the conviction on the basis of such statement is not sustainable. Mr. Bhattacharya also placed reliance on a recent judgement of the Apex Court in the case of State of Rajasthan vs. Raja Ram, reported in 2003 (8) SCC 180 to show that an extra-judicial confession, if voluntary and true and made in a free state of mind, can be relied upon by the Court. Mr. Bhattacharya analysing the evidence on record contended that there were contradictions amongst the witnesses with regard to the actual extra-judicial confession alleged to have been made by the appellants before the de facto-complainant, Kalyan Kr. Mr. Bhattacharya analysing the evidence on record contended that there were contradictions amongst the witnesses with regard to the actual extra-judicial confession alleged to have been made by the appellants before the de facto-complainant, Kalyan Kr. Hansda (P. W. 5 ). So, it is concluded that no reliance should be placed on such extra-judicial confession and, as such, the judgement of the Trial Court is liable to be set aside and both the appellants are to be acquitted. ( 8 ) ON the other hand, Mr. Kazi Safiullah, learned P. P. appearing on behalf of the State was fair enough to point out that the extra-judicial confession is always construed to be a very weak piece of evidence. But after analysing both the judgements of the Apex Court relied upon by Mr. Bhattacharya, it is contended that the conviction on the basis of extra-judicial confession is not unwarranted if it is found that confession was made voluntary and before unbiased persons, not even remotely inimical to the accused persons. So, Mr. Safiullah, learned P. P. contended that the extra-judicial confession can be accepted and it can be the basis of conviction if it passes the test of credibility so as to inspire the confidence of Court. ( 9 ) THE learned P. P. thereafter analysed the evidences of the witnesses and the circumstances and contended that there is nothing on record to show or to indicate that witnesses were inimical to the appellants or that the extra-judicial confession was not voluntarily made by the appellants. The learned P. P. also pointed out that on the basis of the extra-judicial confession, the dead body was recovered along with weapons of offence in presence of the witnesses. Thus, it was pointed out that the factum of making of extra-judicial confession was proved and that was corroborated by the recovery of the dead body, the weapon of offence and the post-mortem report. So, the learned P. P. concluded that the case has been proved beyond any shadow of doubt and accordingly, the conviction and the sentences should be upheld by this Court. ( 10 ) IT is already stated above that ten witnesses were examined in this case, out of which, most vital witnesses are P. W. I, P. W. 2, P. W. 5 and P. W. 6 before whom extra-judicial confession was made by both the appellants. ( 10 ) IT is already stated above that ten witnesses were examined in this case, out of which, most vital witnesses are P. W. I, P. W. 2, P. W. 5 and P. W. 6 before whom extra-judicial confession was made by both the appellants. From the evidences of these witnesses, it is sufficiently clear that victim Mati was residing as husband and wife with Hopna Tudu. The evidence on record further clarifies that Mati had some landed properties. It is also established that the victim mati was related to both the appellants as 'pisima'. It is also in evidence that hopna Tudu disclosed before the P. W. 5 that both the appellants took the victim mati from Bahadurpur Hat to their residence. It is also on record that since then Mati was missing. It is established from the evidences of the said four witnesses as corroborated by the local B. D. O. Shri Manas Kumar Mandal (P. W. 7) that the dead body of Mati was brought out from the marshy land at kiolkhari at the indication of both the appellants. The local witness Nikhail ch. Roy (P. W. 3) also corroborated this fact. So, it is sufficiently established that the dead body of Mati was brought out after undigging the earth at kiolkhari. ( 11 ) AUTOPSY Surgeon, Dr. Ajoy Kumar Das (P. W. 4) concluded that the death was caused due to homicidal asphyxia thereby indicating that the death was caused by throttling. Due to pressure exerted in course of such throttling, there were fracture of ribs and rapture of lungs of both sides. P. W. 4 fixed the probable time of death between 7 p. m. and 11 p. m. on 6. 9. 89. In the post-mortem report, it is also indicated that half-digested rice was found in the stomach of the victim thereby indicating that after taking of rice she was killed. ( 12 ) IT is to be noted from the written complaint that the date of missing of mati and the extra-judicial confession of the appellants indicated that Mati was taken to their house on 6. 9. 89. The post-mortem report was prepared long after the FIR where time of death of the victim was fixed between 7 p. m. and 11 p. m. on 6. 9. 9. 89. The post-mortem report was prepared long after the FIR where time of death of the victim was fixed between 7 p. m. and 11 p. m. on 6. 9. 89 thereby indicating that the extra-judicial confession as regards taking of Mati to the house of the appellants was credible and it was done on 6. 9. 89. ( 13 ) THE post-mortem report and the evidence on record also corroborate the extra-judicial confession that the victim was throttled to death and thereafter she was buried under the marshy land at Kiolkhari after carrying the dead body by means of a mat prepared by date-palm leaves and a rope tied with a bamboo pole used in a bullock-cart. It is to be noted that when the dead body was recovered, all these articles were also brought out. So, side by side digging out, the recovery of weapon of offence, i. e. iron kata from the house of Ganesh indicates that before burying the dead body, belly was split up to avoid swelling of the body. Moreover, all these records support the extra-judicial confession as made out by both the appellants. It is also to be noted that the I. 0. also recorded the statement of the accused persons as regards recovery of the dead body and the weapon of offence which were marked as Exts. 5 and 5a. ( 14 ) NOW, it comes for consideration whether the extra-judicial confession as alleged to have been made by both the appellants before P. W. 5 gets any corroboration' from other three witnesses present at that moment viz. P. W. 1, p. W. 3 and P. W. 6. It is pertinent to mention that the oral complaint of P. W. 5 before the police was reduced into writing by S. I. Shri R. K. Datta (P. W. 8 ). In the said FIR the names of P. W. 1, P. W. 2 and P. W. 6 were disclosed by P. W. 5. All these three witnesses virtually corroborated the fact that both the appellants came to the house of P. W. 5 in the morning of 22. 9. 89 and disclosed how they took the victim Mati to their house, how she was killed and the dead body was disposed of. All these three witnesses virtually corroborated the fact that both the appellants came to the house of P. W. 5 in the morning of 22. 9. 89 and disclosed how they took the victim Mati to their house, how she was killed and the dead body was disposed of. It is also to be noted that the evidence of P. W. 2 was unshaken in the cross-examination and P. W. 6 was not cross-examined on the vital point. Above all, P. W. 1 also disclosed that he came to know that both the appellants killed the victim. Actually after the extra-judicial confession, all these three witnesses along with P. W. 5 carried both the appellants to the Police Station. So, the presence of the appellants along with all these three witnesses before the Police Station further corroborates the fact that there was an extra-judicial confession by both the appellants prior to the discovery of the dead body or to ascertain the cause of death of the victim. ( 15 ) CONSTABLE No. 694, Sk. Golam Hossain (P. W. 9) was a formal witness who carried the dead body to the Autopsy Surgeon for post-mortem examination. ( 16 ) SO, after analysing the evidence produced in this case and the decisions relied upon and the circumstances, we come to the conclusion that the extra-judicial confession of the accused persons was voluntarily made before P. W. 5 and other witnesses who had no animosity with the appellants nor they had any occasion to be inimical against them. Moreover, the recovery of the dead body and the cause of death are sufficient to indicate that the extra-judicial confession of both the accused persons were corroborated without any shadow of doubt. ( 17 ) IT is also to be mentioned that there was no whisper that the extra-judicial confession was not made voluntarily. On the other hand, it is clarified that the extra-judicial confession was made voluntarily without any threat or pressure or promise to the maker. So, we come to the conclusion that the extra-judicial confession are very much credible and the Trial Court practically considered all these aspects and came to just a decision as regards finding of guilt of both the appellants. So, we come to the conclusion that the extra-judicial confession are very much credible and the Trial Court practically considered all these aspects and came to just a decision as regards finding of guilt of both the appellants. ( 18 ) SO, from the above discussion, it is sufficiently clear that the charges under sections 302/34 and also under section 201 of the IPC have been well established and proved against both the appellants and the Trial Court rightly convicted and sentenced the appellants. We do not find any reason to interfere with the findings of the Trial Court. Accordingly, this appeal is dismissed. Sankar Prosad Mitra, J. : I agree. Later: 28. 6. 04. Xeroxed certified copies of this judgement, as prayed for, be supplied to the learned counsel appearing for the parties on usual terms. Appeal dismissed.