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2006 DIGILAW 254 (GAU)

Atul Saikia v. State of Assam

2006-03-17

RANJAN GOGOI

body2006
JUDGMENT Ranjan Gogoi, J. 1. This appeal is directed against the judgment and order dated 18.2.1998 passed by the learned Sessions Judge, North Lakhimpur in Sessions Case No. 41(NL) 96 convicting the accused/appellant under Section 304 Part-I of the Indian Penal Code and sentencing him to undergo R.I. for seven years and to pay a fine of Rs. 500, in default, to undergo further R.I. for one month. 2. The prosecution case, in short, is that one Biren Saikia (PW 1) had lodged a F.I.R. on 21.6.1995 at about 1.00 P.M. with the Dolohat Police Outpost under North Lakhimpur Police Station to the effect that at about 11 A.M. of the same day his elder brother, Tankeswar Saikia, was killed by another brother of the first informant, i.e., the accused by inflicting blows with a spade and an axe. On receipt of the F.I.R. police registered a case under Section 302, I.P.C. and took up investigation thereof. In the course of the investigation police visited the place of occurrence and recovered the' dead body of the deceased from the place of occurrence. Inquest was held and the dead body was sent for post mortem examination. From the place of occurrence the police had arrested the accused/appellant. According to the prosecution, the accused having volunteered to make a confessional statement he was forwarded to the Court on the next day, i.e., 22.6.1995 where after his confessional statement under Section 164, Cr.P.C. (Ext-4) was recorded by PW 5. Furthermore, in the course of the investigation the statements of a large number of persons who were examined were recorded. At the conclusion of the investigation charge-sheet was submitted against the accused/appellant under Section 302, I.P.C. The case being exclusively triable by the Court of Sessions was committed for trial to the Court of the learned Sessions Judge, North Lakhimpur. In the trial Court charge under Section 302, I.P.C. was framed against the accused/appellant to which he pleaded not guilty and claimed to be tried. In the course of the trial four witnesses were examined on behalf of the prosecution. Two witnesses were examined as court-witnesses. The statement of the accused/appellant was recorded under Section 313, Cr.P.C. Thereafter, by the impugned judgment and order dated 18.2.1998 the accused/appellant having been convicted and sentenced as aforesaid, aggrieved, the instant appeal has been filed. 3. In the course of the trial four witnesses were examined on behalf of the prosecution. Two witnesses were examined as court-witnesses. The statement of the accused/appellant was recorded under Section 313, Cr.P.C. Thereafter, by the impugned judgment and order dated 18.2.1998 the accused/appellant having been convicted and sentenced as aforesaid, aggrieved, the instant appeal has been filed. 3. The evidence adduced in support of the prosecution case may be briefly noticed at this stage. PW 1, Biren Saikia, the first informant, is the brother of the deceased as well as the accused. Though he has proved the FIR (Ext. 1) and his signature thereon as Ext. 1(1), in the course of his deposition he has stated that the F.I.R. was written by one Gobin Saikia who, however, did not read out the contents to him. In his deposition PW 1 did not fully support the prosecution case inasmuch as he has stated that at the relevant point of time he was working in his field and only being informed about some commotion in his house he returned home and found his elder brother, the deceased, lying in the courtyard. PW 1 has, however, deposed that the inmates of the house informed him that a fight had taken place between the accused and the deceased. PWs 2 and 3 who are relations of the accused and the deceased had deposed in a more or less similar way. 4. PW 4, Dr. R. K. Phukan, had conducted the post mortem examination on the dead body of the deceased Tankeswar Saikia. As the post mortem report in original was not proved through the said witness, he was again examined as a Court witness and in the course of such examination he had proved the post mortem report from which it is evident that the deceased had suffered the following injuries. (1) Sharp wound of about 2½" in size which is penetrating with a round hole just about the left ear. (2) There is a lacerated wound with hematoma of the scalp in the right temporal region extending towards occipital and parietal regions on the right side. (3) There is a sharp cut over the right shoulder of about 2" width in size and it is only skin deep. (2) There is a lacerated wound with hematoma of the scalp in the right temporal region extending towards occipital and parietal regions on the right side. (3) There is a sharp cut over the right shoulder of about 2" width in size and it is only skin deep. Cranium and Spinal Canal: (1) There is a sharp cut about 2½" in size which is penetrating with a round hole to the brain fracturing the skull bones just about the left ear. This injury also caused depressed fracture in the temporal bone and also the parietal bone in the left side. The injury caused extensive damage to the underlying brain membrane and also caused laceration of the underlying brain substances. There is also extensive hemorrhages from brain and scalp vessels. (2) There is also a depressed fracture in right temporal region which depressed upto the brain and it is about 4" in size and extending upto the parietal region - right side. This also caused extensive laceration of the overline scalp and underlying brain and membranes. There is also another depressed fracture in the right parietal region causing laceration of the underlying brain and membranes. All the injuries are causing extensive hemorrhages and laceration of the brain. 5. PW 5, Mazed Ali, who was at the relevant point of time working as the Munsiff-Magistrate at North Lakhimpur had recorded the confession of the accused under Section 164, Cr.P.C. The confession was recorded on the next day of the occurrence, i.e., 22.6.1995. The accused at that time was in police custody and he was produced before the Court from such custody. In his deposition PW 5 has stated that the accused was first produced before him at 10.30 A.M. on 22.6.1995. At that point of time, according to PW 5, he had cautioned the accused as regards the consequences of making a confessional statement and thereafter placed the accused under the custody of a Peon allowing time for reflection. The accused was again produced before PW 5 at about 3.00 P.M. and after cautioning the accused once again and further informing him that he, i.e., PW 5 was not a Police Officer and that the accused is not bound to make any confession and further if a confession is made it may be used against him in the trial, the confession (Ext. 4) was recorded. 4) was recorded. PW 5 has stated that before recording the confession he had satisfied himself that the accused was willing to make the confession voluntarily and without being influenced by any external force. It is in the cross-examination of PW 5 that, for the first time, the stand of the accused that the confession was not free and voluntary appears to have been laid. It may be noticed at this stage that PW 5 had deposed and was cross-examined on 13.5.1997. PW 6, Govinda Chandra Saharia, is the Investigating Officer of the case. He has deposed that after registration of the case on the basis of the F.I.R. filed he had gone to the place of occurrence and found the dead body of deceased Tankeswar Saikia lying in the courtyard of the accused/appellant. He has also deposed that he had arrested the accused/appellant at the place of occurrence and as the accused/appellant expressed his desire to make a confessional statement he was sent to the Court for recording of such statement. 6. A consideration of the core of the prosecution evidence against the accused/appellant, as noticed above, would go to show that there are three different pieces of incriminating material against the accused/appellant. First is the confessional statement (Ext. 4) recorded by PW 5. The second piece of incriminating material against the accused/appellant is the evidence of PW 1 to the effect that there was a fight/scuffle between the accused and the deceased. The third piece of evidence against the accused/appellant would be the evidence of PW 6 to the effect that the dead body of Tankeswar Saikia was recovered from the courtyard of the accused/appellant. 7. From the evidence of PW 5 it is evident that the accused/appellant was produced in the Court from police custody at about 10.30 A.M. on 22.6.1995. It is also evident from the deposition of PW 5 as well as from the contents of Ext. 4 that the accused/appellant was cautioned against making a confessional statement and thereafter he was put in the custody of an office Peon till about 3.00 P.M. allowing the accused/appellant time for reflection. It is also evident from the deposition of PW 5 as well as from the contents of Ext. 4 that the accused/appellant was cautioned against making a confessional statement and thereafter he was put in the custody of an office Peon till about 3.00 P.M. allowing the accused/appellant time for reflection. The accused/appellant was again produced before PW 5 at about 3.00 P.M. and on the second occasion also it was explained to the accused/appellant by PW 5 that PW 5 was a Magistrate and not a police officer that the accused/appellant was not bound to make a confession and if a confession is made it may be used against him in the trial. In the course of such interaction/questioning the accused/appellant was also informed that the confession should not be made on the prompting of others and further that whatever the accused/appellant was proposing to say should be true and correct. All the aforesaid questions were answered satisfactorily by the accused/appellant, where after, PW 5 proceeded to record the confessional statement of the accused/appellant. In the said statement the accused/appellant had stated that the deceased Tankeswar Saikia was his elder brother. After the death of their father the properties were divided between the brothers. However, the relationship of the accused/appellant with the deceased was not cordial as the deceased used to commit various atrocities on the accused/appellant. In particular it was stated by the accused/appellant that the deceased used to regularly harvest the fruits growing on the land of the accused/appellant and that on the day of the incident at about 10 A.M. the deceased had plucked mangoes growing on the land of the accused/appellant where after he had come to pluck jackfruits. At this stage the accused/appellant asked the deceased to refrain, whereupon, the deceased attempted to hit the accused/appellant with the branch of a jackfruit tree. Infuriated the accused/appellant hit the deceased in the head with a spade that was lying nearby. According to the accused/appellant the deceased unexpectedly died and out of remorse for killing his own brother he had surrendered to the police. In his confessional statement the accused/appellant had also stated that while in police custody he was not ill treated. In Ext. Infuriated the accused/appellant hit the deceased in the head with a spade that was lying nearby. According to the accused/appellant the deceased unexpectedly died and out of remorse for killing his own brother he had surrendered to the police. In his confessional statement the accused/appellant had also stated that while in police custody he was not ill treated. In Ext. 4, PW 5 has certified that the accused person did not complain of any ill treatment from the police or from any other quarter and that he appeared to be repenting for the crime committed for which reasons PW 5 was of the opinion that the confession was being made voluntarily. The aforesaid entry in Ext. 4 has been proved by PW 5 as Ext. 4(5). 8. The confessional statement Ext. 4 was recorded by PW 5 on 22.6.1995. It is for the first time in the cross-examination of PW 5, on 13.5.1997, that a suggestion was put to PW 5 that the confession made was not voluntary. Thereafter, in the course of his statement recorded under Section 313, Cr.P.C. in reply to a specific question put with regard to Ext. 4 the accused/appellant stated that he had made the confession as the police had threatened him. The statement of the accused/appellant under Section 313, Cr.P.C. was recorded on 10.2.1998. 9. Sri D.R. Gogoi, learned Counsel for the accused/appellant, in course of his argument, has submitted that as Ext. 4, i.e., the confessional statement was resiled from by the accused/appellant, though at a belated stage, Ext. 4 would partake the character of being a feeble kind of evidence and would not be capable of sustaining the conviction of the accused/appellant on its own. Shri Gogoi, learned Counsel for the accused/appellant, has further submitted that the confessional statement made by the accused having been retracted it will be necessary for the Court to look for other corroborative evidence and no such evidence being forthcoming or available, the impugned conviction must be interfered with by this Court. That apart, learned Counsel for the accused/appellant has submitted that Ext. That apart, learned Counsel for the accused/appellant has submitted that Ext. 4, by itself, cannot inspire the confidence of the Court inasmuch as it was recorded upon production of the accused from police custody and further there is no evidence to show that the accused/appellant was informed that even if he is not willing to make a confession he will not be sent back to police custody. The latter requirement is argued to be mandatory and vital in view of the specific provisions contained in Section 164(3) of the Cr.P.C. Shri Gogoi, learned Counsel for the accused/appellant, has argued that in the above facts the requisite voluntariness attending a confessional statement was not present in the instant case and, therefore, no reliance ought to be placed by the Court on Ext. 4. In support the decisions of the Apex Court in the case of Sarwan Singh v. State of Punjab reported in 1957 CriLJ 1014 and in the case of Shivappa v. State of Karnataka reported in AIR 1995 SC 980 has been relied upon. 10. A confession being a positive statement made by the offender himself admitting his guilt. Courts have always insisted on proof of its true and voluntary character before accepting a confession as legal evidence against the offender. The above cardinal requirement is what the provisions laid down in Section 164, Cr.P.C. and the numerous judicial precedence on the point, seeks to achieve. The ultimate test for acceptance of a confessional statement is the satisfaction of the Court that such a statement has been made by the offender voluntarily and on his own will without being influenced by any other external force or pressure and furthermore that what has been stated is a true account of what had happened. It is to arrive at the aforesaid satisfaction that the Courts have insisted, time and again, that before a confession is recorded by a learned Magistrate multifaceted questions should be put to the accused to ensure that what the accused is proposing to say is true and voluntary. It will be futile if not unnecessary to make an attempt to entrap all such questions that would be required to be put to the accused in any straight-jacket formula. A possible visualization of all such questions would, indeed, be too simple a solution. It will be futile if not unnecessary to make an attempt to entrap all such questions that would be required to be put to the accused in any straight-jacket formula. A possible visualization of all such questions would, indeed, be too simple a solution. There can be no hard and fast rule as to what should be asked and as to what questions, if not put to the accused, the statement made should become unacceptable to the Court. There is also no rule or law that a confessional statement cannot be recorded if the accused is produced before the Court from police custody, though the aforesaid fact must put the Judicial Officer, recording the confession, on guard. Similarly, there can be no hard and fast rule that if the accused is not informed that he will not be sent to police custody even if he declines to make a confessional statement, the said fact, by itself, will make the confessional statement suspect. All would depend on the facts of the case and the voluntary character of the statement has to be judged in the light of all the surrounding facts and circumstances. Any doubt in this regard must go to the benefit of the accused. However, such doubt must be capable of being reasonably entertained and not merely because the accused had resiled from the confession made at a latter stage. In such situations, the point of time at which the accused had resiled from the confession earlier made would be one significant factor. 11. Applying the above tests to the present case what the Court finds, from a consideration of the evidence of PW 5 and Ext. 4, is that the accused/appellant was produced before PW 5 for recording of his confessional statement at about 10.30 A.M. of 22.6.1995. The accused/appellant was brought from police custody. PW 5 cautioned the accused/appellant against the making of the confessional statement after identifying himself as a Magistrate and after informing the accused that he was under no obligation to make the confessional statement, but if such a statement is made the same can be relied upon against him in the trial. The accused/appellant seemed to have understood the questions and was willing to make the confessional statement. Thereafter, PW 5 put the accused in the custody of one of his office Peons and gave the accused about four hours time for reflection. The accused/appellant seemed to have understood the questions and was willing to make the confessional statement. Thereafter, PW 5 put the accused in the custody of one of his office Peons and gave the accused about four hours time for reflection. At about 3.00 P.M. the accused was again produced before PW 5 and as is evident from Ext. 4, PW 5 had put certain searching questions to the accused whereupon, being satisfied, he proceeded to record the confessional statement. In the course of the confessional statement the accused/appellant stated that he was provoked into the assault committed on the deceased and that he did not expect the deceased, who was his own brother, to die. However, as death had occurred in his hands, out of remorse he was making the confessional statement. The accused also denied any ill treatment at the hands of the police. While it is correct that Ext. 4 and the evidence of PW 5 does not reveal that the accused was not informed that he will not be sent to police custody if he is unwilling to make a confessional statement, the said lacuna, by itself, in the facts of the present case, cannot be understood to have vitiated the confessional statement of the accused. The aforesaid question, if put, could have lent further credence to the confessional statement; the absence of the said question, by itself, will not be fatal keeping in view the circumstances in which the confession of the accused/appellant was recorded. 12. The confession of the accused/appellant was retracted subsequently. It is in the course of cross-examination of PW 5 that for the first time the accused/appellant had sought to contend that the confession made by him was not voluntary. Later, in the course of his statement under Section 313, Cr.P.C. the accused/appellant has said that the confession made by him was under the influence of the police. There is no explanation as to why the retraction in the present case was made on the expiry of about two years after the confession was recorded. Not only that, the confessional statement of the accused/appellant contains an exculpatory part also, i.e., that he had caused the injuries on the deceased in a situation where the deceased was advancing to attack the accused with the branch of a jackfruit tree. Not only that, the confessional statement of the accused/appellant contains an exculpatory part also, i.e., that he had caused the injuries on the deceased in a situation where the deceased was advancing to attack the accused with the branch of a jackfruit tree. The above facts will have to be taken into account by the court in determining the voluntary character of the confession which facts, properly construed, goes against the accused/appellant. The further argument advanced on behalf of the accused/appellant is that the confessional statement being retracted must receive corroboration from other independent witness. Corroboration of a confession, retracted in circumstances which do not inspire the confidence of the Court, is a rule of caution and/or prudence rather than a rule of law. Courts should look for such corroborative evidence only to satisfy its conscience. In the present case, the evidence of PW 1 to the effect that the accused and the deceased were involved in a fight and the recovery of the dead body from the courtyard of the accused, in the considered view of the Court, sufficiently corroborates the confession made by the accused which has already been held by the Court to have been retracted in circumstances that do not inspire the confidence of the Court. The recovery of the dead body from the courtyard of the accused is a sufficiently strong circumstance against the accused and though the same has been sought to be explained by the accused in his statement recorded under Section 313, Cr.P.C. by stating that he had dragged the dead body to his courtyard, in the absence of further facts, the explanation furnished by the accused can hardly be accepted. 13. For all the aforesaid reasons, I am of the view that the prosecution in the present case has succeeded in bringing home the guilt of the accused. Accordingly, I am of the view that this appeal has no merit. It is therefore, dismissed. The conviction and sentence recorded by the learned trial Court is affirmed. The accused/appellant shall now surrender and serve out the sentence. His bail bonds are cancelled and surety stands discharged. Appeal dismissed