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2005 DIGILAW 777 (GAU)

Ram Das Panika v. State of Assam

2005-11-11

I.A.ANSARI, P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. In Sessions Case No. 82/1998, three accused-Appellants, namely, Shri Ram Das Panika, (A1) Shri Pardeshi Garh (A2) and Shri Sankar Barik (A3) were tried by the Sessions Judge Dibrugarh and on conclusion, they were convicted under Section 302 read with Section 34 IPC and were sentenced to suffer/undergo Rigorous Imprisonment for life and also to pay fine of Rs. 4,000 each and in default to suffer further Rigorous Imprisonment for two years more. Hence, their case. 2. We have heard Mrs. Rita Borbora, learned Amicus Curiae, appearing for the accused-Appellants and Mr. D. Das, learned Public Prosecutor, Assam, appearing on behalf of the Respondent. 3. The matter relates to the killing of Manbat Garh, on 5.5.1998 at about 8-30 AM, at Baraline Road of Maud Tea Estate, under Tengakhat Police Station. The death of the deceased, Manbat Garh had occurred as a result of injuries sustained as has been deposed by a number of witnesses including his wife. 4. As per the evidence of Dr. M.N. Gogoi (P.W. 3), who held post-mortem examination over the dead body of Manbat Garh, he found as follows: Injuries: 1) One incised wound on the right side of the neck in the middle part cutting the neck completely illegible of the left side of the neck of size 16 c.m.x2 c.m. Cutting illegible muscles, blood vessels, vessels, spinal cord 4 the cervical vertebrae corrected. 2) One incised wound in the left shoulder region of size 1cmx2cm bone cut. II. CRANIUM AND SPINAL CANAL 1. Scalp, Skull, vertebrae : Scalp and Skull – Healthy Vertebrae – Cut on ward No. 1 2. Membrane : Mouth Cut. 3. Brain and spinal Cord : Brain cut spinal cut ward No. 1 III. THORAX 1. Wallis, ribs and cartilage : Healthy 2. Pleurae Healthy 3. Larynx and trach ere Right Lung Left Lung Pericar (dium) Heart Vessels Illegible-completely Healthy Healthy Healthy Healthy, empty Healthy IV. ABDOMEN 1. Walls Healthy 2. Peritoneum Healthy 3. Mouth, Pharynx, Oesophagus : Oesophagus cut completely 4. Stomach and its contents : Healthy, empty 5. Small intestine and its contents : Healthy 6. Large intestine and its contents : Healthy 7. Liver Healthy 8. Spleen Healthy 9. Kidneys Healthy 10. Bladder Healthy 11. ABDOMEN 1. Walls Healthy 2. Peritoneum Healthy 3. Mouth, Pharynx, Oesophagus : Oesophagus cut completely 4. Stomach and its contents : Healthy, empty 5. Small intestine and its contents : Healthy 6. Large intestine and its contents : Healthy 7. Liver Healthy 8. Spleen Healthy 9. Kidneys Healthy 10. Bladder Healthy 11. Organs of generation, external and internal Healthy V. MUSCLES, BONES AND JOINTS MORE DETAILED DESCRIPTION OF INJURY OR DISEASE (3) One incised wound in the right (illegible) region of size 8cmxlcm, muscle deep. (4) One incised would in the middle part of the back of the body right side of size 7 cmx 1 cm, muscle deep. OPINION OF SURGEON AS TO CAUSE OF DEATH Death was due to the shock and haemorrhage that resulted for the antemortem injuries caused by the heavy sharp cutting weapon injuries and homicidal in nature. Time since death : 6-12 hours. 5. In the opinion of Dr. M.N. Gogoi, the death was caused due to injury No. 1 which was caused by heavy sharp cutting weapon. The trial Court held this injury to be ante-mortem and homicidal in nature and we find that the death of the deceased as a result of injuries sustained, has not been disputed or challenged. 6. In the present case, there is no eyewitness to the occurrence. The entire prosecution case rests on the extra-judicial confession made by the accused persons. 7. The Manager of the Maud Tea Estate, Shri Prabu Dayal (Kedia), who had deposed that on 05.05.1998 at about 9.00 AM, three accused persons, namely, Ram Das Panika (A1) Sankar Baraik (A3) and Pradeshi Garh (A2) came to his factory compound, requested and told him as follows: We have killed Manbat, please provide us with vehicle, we will do to police station. 8. The Manager did not provide with the vehicle, but informed the police by lodging FIR against them. 9. Shri (Dhiran) Kumar Bora, P.W. 2, the Assistant Manager of the Maud Tea Estate, was also present when the accused persons came to the factory compound and he has supported the statements made by P.W. 1 as regards the extra-judicial confession. The exact words used by the accused-persons have been quoted. We may like to recapitulate the law regarding appreciation of the extrajudicial confession. The exact words used by the accused-persons have been quoted. We may like to recapitulate the law regarding appreciation of the extrajudicial confession. Extra Judicial Confession It must be proved like any other fact-In the process of proof of alleged confession the Court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise, envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances, to circumvent Sections 25 and 26 of the Evidence Act. The Court has to look into the surrounding circumstances and to find whether the extrajudicial confession is not inspired by any improper and co-lateral consideration and circumvention of the law suggesting that it may not be true one. The Court must scrutinize, for example, all the relevant facts such as the person to whom the confession is made, the time and place of making it circumstances in which it was made and the actual words used by the accused. The extra judicial confession if found to be voluntary, can be relied upon by the Court alongwith other evidence on record and the conviction can be based thereon. (Kishore Chandra v. State of Himachal Pradesh (1990) 3 SCC 662. The evidence furnished by the extra judicial confession made by the accused to the witnesses cannot be termed as tainted evidence and corroboration is required only by way of abandoned caution. AIR 1975 SC 1320 . An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the varacity of the witness, to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence if not the actual words but the substance were given. It is for the Court having regard to the credibility of the witness his capacity to understand the language in which the accused made the confession to accept the evidence or not". Extra judicial confession-confession made by the accused to his close friend about killing his wife and children. It is for the Court having regard to the credibility of the witness his capacity to understand the language in which the accused made the confession to accept the evidence or not". Extra judicial confession-confession made by the accused to his close friend about killing his wife and children. There is no rule of law or rule or prudence that the evidence furnished by extra judicial confession cannot be relied upon unless corroborated by other credible evidence Held: the statement was admissible and reliable. The Courts have considered the extra judicial confession, a weak piece of evidence. But when the evidence about extra judicial confession comes from a witness unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing and untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of a witness to a rigorous test on the touch stone of credibility if it passes the test the test extra judicial confession can be accepted and made basis of conviction: State of U.P. v. M.K. Anthony AIR 1985 SC 48 . Extra judicial confession can be relied for conviction-value of evidence depends upon veracity of witness - It is true that Court requires the witness to give the actual words used by accused as nearly as possible but it is not invariable rule-if substance is given, it can be used." Baldeo Raj v. Haryana1990 (4) SCC 524. 10. In the present case, we find that both P.W. 1 and P.W. 2 are the Manager and Assistant Manager of the Tea Garden respectively and they were in no way related and concerned either with the accused persons or the deceased in the matter except they were workers and working under them. These two witnesses had no interest in the matter and the accused-persons approached them for a vehicle so that they can go to Police station to surrender there. The fact that the accused persons had subsequently surrendered before the police, has been deposed to by the investigating Police Officer (P.W. 6). These two witnesses had no interest in the matter and the accused-persons approached them for a vehicle so that they can go to Police station to surrender there. The fact that the accused persons had subsequently surrendered before the police, has been deposed to by the investigating Police Officer (P.W. 6). Thus, we find no reason on the part of the P.W. 1 and 2 make out a false story of extra judicial confession and the above statements find place in the FIR lodged immediately by P.W. 1. 11. Further, we find that the accused Ram Das Panika (A1) and Pardeshi Garh (A2) subsequently led the police to the recovery of the weapon of assault, the dao and lathi, i.e. material Ext. 1 and 2, which were hidden in the factory premises and the tea bush and these were seized by the police by Ext. 2. The material Exhibit 1 and 2 are seized weapon under Section 27 of the Evidence Act has been deposed to by police and the same has not been challenged by way of cross-examination. Thus, the recovery of weapon of assault on being led by the accused person support extrajudicial confession. 12. In the present case, we find that the accused persons have admitted that they had gone to the factory compound as deposed by P.W. 1 and P.W. 2, however, the accused persons have denied making the extra judicial confession. 13. We have seen from in the evidence of P.W. 1 and P.W. 2 that two accused persons, namely, Ramdas and Pardeshi made extra judicial confession and the other accused person Sankar Baraik (A3) did not make any confession. He was merely present and he was standing 5/6 feet behind the other accused. He made no confession. There is no extra judicial confession from his mouth and the extra judicial confession made by the other accused cannot form basis for conviction of the accused Sankar Baraik. In the absence of any other material appearing against him, we hold him not guilty and acquit him. The conviction and sentence against him stands set aside. 14. So far as other two accused Appellants, namely, Ram Das Panika (A1) and Pardeshi Garh (A2) we find no merit in their appeal and the same stands dismissed. Their conviction and sentence stands affirmed. 15. The learned Amicus Curiae shall be paid fees of Rs. 2,500/-. 16. The conviction and sentence against him stands set aside. 14. So far as other two accused Appellants, namely, Ram Das Panika (A1) and Pardeshi Garh (A2) we find no merit in their appeal and the same stands dismissed. Their conviction and sentence stands affirmed. 15. The learned Amicus Curiae shall be paid fees of Rs. 2,500/-. 16. Send down the LCRs. Appeal dismissed.