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2006 DIGILAW 499 (GAU)

Mantu Telenga v. State of Tripura

2006-05-25

A.B.PAL, TINLIANTHANG VAIPHEI

body2006
JUDGMENT A.B. Pal, J. 1. This criminal appeal is directed against the judgment dated 10.6.1998 passed by learned Additional Sessions Judge, West Tripura, Agartala in Sessions Trial No. 109 (WT/K) 95 convicting the appellants Mantu Telenga and Sarat Kanda under Section 302 of the Indian Penal Code ('IPC') and sentencing them to suffer imprisonment for life with a fine of Rs. 2,000 each in default, a further imprisonment of six months. 2. On 22.2.1992 some time after 7 p.m. Surjya Kumar Das, a young man of 19 years only was done to death allegedly by the two appellants herein Shri Mantu Telenga and Sarat Kanda along with another Manu Telenga, an absconder. Prosecution version, in brief, is that on 22.2.1992 in the afternoon deceased Surjya left his house stating to his father (P.W.1) that he was going to the house of Ujjal Das (P.W.10). He did not return that night. On the following morning his father went to the house of Ujjal Das and learnt from him that his son had left at about 7 p.m. Later, he was found playing a tape recorder at Chowmuhani near the house of Ujjal Das. The two appellants herein and the absconder Manu Telenga were found with him. Thereafter, the three assailants had taken the deceased to a place known as Udnacherra on the pretext of hunting wild hens and as premeditated he was brutally killed by them. There was a land dispute and consequent acrimony between the informant and Ramnath Telenga, the father of Manu Telenga. Though the dispute was settled by the village elders in a meeting, Ramnath Telenga was not satisfied with the decision taken in the village meeting. The motive behind the murder, according to the prosecution, was attributable to the said dispute. Manu Telenga absconded to Bangladesh immediately after the murder. He could not be arrested during investigation and trial. 3. From the prosecution story, as noticed above, it would appear that the occurrence having taken place at night and in a desolate place where deceased and his assailants were only present, it was not expected that the prosecution would be able to present any eye witness. Thus, the entire case of prosecution had to be woven on the basis of circumstantial evidence including the conduct of the convicts. During investigation only the two appellants could be booked and taken to custody. Thus, the entire case of prosecution had to be woven on the basis of circumstantial evidence including the conduct of the convicts. During investigation only the two appellants could be booked and taken to custody. One of them Mantu Telenga disclosed to the prosecution witnesses that he along with Sarat Kanda and Manu Telenga had killed Surjya. He also led the investigating police officer and the villagers to the place where the dead body had been thrown by them immediately after the murder. On the basis of the evidence regarding "last seen", extra-judicial confession and discovery of the dead body by Mantu Telenga in presence of the villagers and the police, the prosecution presented its case against the appellants herein, which after a full dressed trial was accepted by the learned trial court. The result was the conviction and sentence as aforesaid. 4. We have heard Mr. D. Guha, learned Counsel for the appellants and Mr. D. Sarkar, learned Public Prosecutor for the State respondent. 5. Mr. Guha, learned Counsel for the appellants strongly argued that in the entire prosecution evidence there is nothing to implicate Sarat Kanda, who did not make any extra-judicial confession like Mantu Telenga. The prosecution evidence is silent whether Sarat also had led the police and other witnesses to the place where the dead body was found. The statement of Ujjal Das (P.W.10) shows that deceased was last seen in Chowmuhani with Mantu Telenga and others. The witness did not divulge the name of others or whether Sarat and Manu were also present with the deceased. Other witnesses, who stated that deceased was 'last seen' with Mantu, Manu and Sarat did not see by themselves, they are being learnt from Ujjal Das only. Thus when Ujjal Das named only Mantu seen by him along with the deceased in the Chowmuhani, inclusion of other two accused Manu and Sarat by the witnesses is clearly afterthought by those witnesses, who had no other source of information. As regards the conviction and sentence of Mantu Telenga, Mr. Guha submits that extra-judicial confession is a weak piece of evidence, which cannot be the only basis of conviction. As regards the conviction and sentence of Mantu Telenga, Mr. Guha submits that extra-judicial confession is a weak piece of evidence, which cannot be the only basis of conviction. As regards the discovery of the dead body by Mantu his submission is that the police did not record any statement of the said accused before the discovery of the dead body and, therefore, as there was no such statement leading to discovery of the dead body, the benefit of Section 27 of the Evidence Act is not available to the prosecution. Situated thus, it is the robust submission of Mr. Guha that conviction and sentence of Mantu and Sarat, the two appellants herein, are not sustainable in law. 6. Mr. Sarkar, learned Public Prosecutor, however, has pointed out that extra-judicial confession in the present case has other circumstantial evidence to derive support and the very conduct of the convicts as well as the absconder are enough to bring home the only hypothesis that none but the said appellants were responsible for the gruesome murder of the deceased. 7. The rival submissions noticed above, have led us to delve into the evidence and materials on record in support of the prosecution story to examine whether the prosecution case can be said to have been proved beyond reasonable shadow of doubt. 8. From the statement of Suklal Das (P.W.1), the father of the deceased and Ujjal Das (P.W.10), the first part of the story that on the fateful evening the deceased had left his house for the house of Ujjal Das and then at about 7 p.m. he left the house of Ujjal Das and was seen with Mantu Telenga and others at Chowmuhani has been well established. No other witness has stated that they had seen the deceased with Mantu Telenga, Manu Telenga and Sarat Kanda. All of them stated that they came to know from Ujjal Das that the deceased was last seen with the above three assailants though Ujjal Das divulged only the name of Mantu. The deceased did not return home that night. P.W.1 stated that on the following morning he went to the house of Ujjal Das from whom he learnt that his son was seen with Mantu and others. The deceased did not return home that night. P.W.1 stated that on the following morning he went to the house of Ujjal Das from whom he learnt that his son was seen with Mantu and others. He then went to the house of Mantu and his mother told that he had left the house on the previous night but did not return till that morning. Then this witness went to tell about the disappearance of his son to Swapan Das (P.W.5), Sifan Das (P.W.3) and Surjya Kanta Das alias Sankar (P.W.6). He along with above noted witnesses and other villagers again went to the house of Mantu Telenga. At that time Mantu was found in his house and seeing the villagers, he started to run away. But he was captured by the villagers. Being interrogated, he disclosed to P.W.I and other villagers that he along with Manu and Sarat had killed the deceased and thrown his dead body into the Chermachhera. The informant and Swapan Das (P.W.5) went to the Khowai Police Station and lodged the first information report. Accused Mantu was kept confined in the house of Sudam Sarkar (P.W.2) where he was interrogated. After arrival of police he made a verbal statement that he would be able to show the place where the dead body had been concealed. Accordingly, police as well as the other villagers were taken by Mantu to the place from where the dead body was recovered. This statement of P.W.1 finds corroboration from Sudam Sarkar (P.W.2), Sifan Das (P.W.3), Swapan Das (P.W.5), Surjya Kanta Das alias Sarkar (P.W.6), Krishna Sabar (P.W.7), Gunendra Sutradhar (P.W.8) and Ujjal Das (P.W.10). They are all villagers and accompanied the father of the deceased to the house of Mantu and then to the place where the dead body was found. They corroborated each other stating that after Mantu behaved in a way giving rise to the suspicion about his involvement he was captured and taken to the house of P.W.2 and then to the house of P.W.6 for interrogation. In presence of all the above named witnesses he made the confession that he along with Sarat and Manu had committed the murder. The extra-judicial confession having been made in presence of so many witnesses, who were unbiased and not related to the deceased, there was no reason for the learned trial court to disbelieve the same. 9. In presence of all the above named witnesses he made the confession that he along with Sarat and Manu had committed the murder. The extra-judicial confession having been made in presence of so many witnesses, who were unbiased and not related to the deceased, there was no reason for the learned trial court to disbelieve the same. 9. The law regarding the value of the extra-judicial confession may be noted here from the decision of the Supreme Court in State of U.P v. U.K. Anthony AIR 1985 SC 48 , The relevant observation made in para 15 of the said judgment is gainfully quoted below : 15. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence The courts have considered the evidence of extra-judicial confession a weak piece of evidence [See Jagta v. State of Haryana (1975) 1 SCR 165 at. P. 170 : AIR 1974 SC 1545 at p. 1548 and State of Punjab v. Bhajan Singh (1975) 1 SCR 747 at. P. 751 : AIR 1975 SC 258 at p, 261. In Sahoo v. State of U.P. (1965) 3 SCR 86 : AIR 1966 SC 40 , it was held that an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime'. Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyara Singh v. State of Punjab (1978) 1 SCR 597 : AIR 1977 SC 2274 , this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyara Singh v. State of Punjab (1978) 1 SCR 597 : AIR 1977 SC 2274 , this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra-judicial confession should in all cases be corroborated. It, thus, appears that extra-judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be 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 an 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 the witness to a rigorous test, on the touch stone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relief upon and a conviction can be founded thereon. 10. It would appear from the above decision that value of extra-judicial confession depends on the facts and circumstances of each case and if the same comes from the witnesses, who are unbiased and not even remotely inimical to the accused, it must be attached with the greater value. 11. It has also come from the above independent witnesses that to them the appellant Mantu Telenga made a further statement that he would be able to recover the dead body from the place where it was concealed. The police did not record his statement and, therefore, the question of taking any such statement into evidence under Section 27 of the Evidence Act is out of question. The police did not record his statement and, therefore, the question of taking any such statement into evidence under Section 27 of the Evidence Act is out of question. The fact that Mantu Telenga had shown the dead body in presence of so many witnesses does not become otiose only because no statement of Mantu Telenga was recorded by police, Without the help of Section 27 of the Evidence Act, this particular factual aspect that Mantu Telenga had shown the dead body in presence of the independent witnesses and police claims to have its due credibility It also has come to the fore that on the night of occurrence Mantu Telenga was out of his house and returned on the following morning. Thus the circumstantial evidence discussed above, if arranged properly, the established facts that winch to the fore are that (i) the deceased and Mantu were out of their houses during the night of occurrence; (ii) Mantu was found with the deceased in the evening by P.W.10; (iii) seeing the villagers Mantu tried to run away, but he was captured; (iv) Mantu and Manu were closely related and there was enmity between P.W.1 and Ramnath Telenga, the father of the absconder; (v) 'Mantu firstly falsely stated to the witnesses that the deceased had returned home; (vi) under interrogation from the villagers, Mantu made the confession that he along with Manu and Sarat had committed the murder; (vii) Mantu disclosed to the villagers that after the murder the dead body of the deceased had been thrown into the cherra and he would be able to show the dead body; (viii) after arrival of police he led the villagers and the police to the place from where the dead body was recovered. Thus in view of the extra-judicial confession to the unbiased witnesses coupled with the other circumstantial evidence discussed above, we are of the considered view that the chain of events in the prosecution case has comfortably and beyond reasonable doubt proved that Mantu Telenga along with others were responsible for the murder of the deceased. Therefore, the conviction and sentence of Mantu Telenga has to be upheld. 12. As regards the conviction and sentence of Sarat Kanda, the discussion made above would go to show that he did make no extrajudicial confession and he did not show the dead body to the villagers and the police. Therefore, the conviction and sentence of Mantu Telenga has to be upheld. 12. As regards the conviction and sentence of Sarat Kanda, the discussion made above would go to show that he did make no extrajudicial confession and he did not show the dead body to the villagers and the police. Ujjal Das (P.W.10), who claimed to have last seen the deceased with Mantu did not say that Sarat was also present with the deceased in the Chowmuhani and none of the witnesses stated that Sarat made any attempt to run away when the villagers approached towards him. The only incriminating circumstance against him remains to be the extra-judicial confession of co-accused Mantu Telenga according to which Sarat and Manu were also responsible for the murder of the deceased. 13. It is the settled legal position that statement of a co-accused involving others cannot be the only basis for conviction. Though the extra-judicial confession being inculpatory would, with the support of other circumstantial evidence, strongly prove the case against Mantu Telenga, such confessional statement involving the co-accused Sarat Kanda in the murder cannot be accepted at its face value in the absence of any corroborative evidence and for this reason, we are of the view that the conviction and sentence of Sarat Kanda are not based on evidence beyond reasonable shadow of doubt. Accordingly, the same are not sustainable in law. 14. For the reasons and discussions aforementioned, this appeal is partly allowed affirming the conviction and sentence of Mantu Telenga, but setting aside the conviction and sentence of Sarat Kanda, who is hereby set at liberty. Appeal allowed.