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2009 DIGILAW 45 (GAU)

Sarjan Boro v. State of Assam

2009-01-21

AMITAVA ROY, H.BARUAH

body2009
JUDGMENT Amitava Roy, J. 1. The contextual facts portray a tragic end to a conjugal life initiated by a loving courtship between a young sprightly couple. The accused appellant, husband of the deceased stands convicted under Section 302 of the Indian Penal Code ('the Code') and sentenced accordingly having been adjudged to be the perpetrator of the offence liquidating his better half Manashi Bordoloi (since deceased). 2. Being aggrieved by the judgment and order dated 12.9.2002 passed by the learned Sessions Judge, Morigaqon in Sessions Case No. 51/2001 convicting him as above and sentencing him to undergo rigorous imprisonment for life with a fine of Rs.5000 in default, to suffer rigorous imprisonment for another one year, he is before this Court. 3. We have heard Mr. B.K. Mahajan, Learned Counsel for the appellant and Mr. D. Das, learned Public Prosecutor, Assam. 4. lire uncle of the deceased Dharmendra Bordolbi (PW 5) on 10.6.2001 lodged an ejahar before the Officer-in-Charge, Jagiroad Police Station in the District of Morigaon alleging inter alia that the accused appellant had murdered the deceased and had surrendered at the police station. A request was made to take necessary follow up steps. On receipt of the FIR, Jagiroad P.S. Case No. 74/2001 under Section 302 of the Code was registered and on completion of the investigation charge sheet was laid against the accused appellant under the above provision of law. After committal of the accused, the learned Sessions Judge framed charge against the accused appellant to which he pleaded 'not guilty' and claimed to be tried. 5. The prosecution examined on its behalf seven witnesses including the Investigating Officer and the Doctor who performed the Post Mortem Examination. The accused appellant was examined under Section 313, Cr.PC in course of which he retracted from the confession made by him under Section164, Cr.PC in course of the investigation. According to him, the confession was coerced out on intimidation by police. He, however, declined to adduce any evidence. 6. The learned Sessions Judge on a consideration of the materials on record, by the impugned judgment and order convicted and sentenced the accused appellant as above. 7. Mr. According to him, the confession was coerced out on intimidation by police. He, however, declined to adduce any evidence. 6. The learned Sessions Judge on a consideration of the materials on record, by the impugned judgment and order convicted and sentenced the accused appellant as above. 7. Mr. Mahajan has urged that there being no evidence whatsoever establishing the complicity of the accused appellant with the alleged offence, the prosecution had miserably failed to prove the charge and therefore, the impugned judgment and order need interference in the interest of justice. According to the Learned Counsel, the purported confession of the accused appellant recorded under Section 164, Cr.PC is non est in law as no endeavour to make the necessary searching questions to ascertain the voluntariness thereof had been made by the recording Magistrate, PW 3. Further, as the certificate mandated by Section 164(4), Cr.PC had not been incorporated in the document recording the confession, the same being on the face of the record opposed to the prescription of law as above, is ineffectual null and void. That the statement made by the accused appellant in course of his examination under Section 164, Cr.PC is not voluntary is also evidenced from his retraction therefrom in course of his examination under Section 313, Cr.PC the urged. Without prejudice to the above, Mr. Mahajan has argued that in all, from the attendant facts and circumstances no intention of the accused appellant to commit the offence being discernible, his charge ought to be brought down to one under Section 304, Part II of the Code. 8. Mr. Das in reply has argued that all necessary pre-cautions ordained by law having been observed in recording the confession of the accused appellant under Section 164, Cr.PC which demonstrates the voluntariness and truthfulness thereof, the learned court below was perfectly justified in basing his conviction thereon. Even otherwise, according to the learned Public Prosecutor, the evidence on record taken as a whole is replete with the circumstances which unerringly point towards the guilty of the accused appellant and therefore on that count as well, the conviction and sentence is unassailable in law. 9. We feel it appropriate before adverting to the rival contentions of the parties to have a look at the evidence on record. 10. 9. We feel it appropriate before adverting to the rival contentions of the parties to have a look at the evidence on record. 10. PW 1, Bimala Boro, mother of the accused appellant has stated that though her daughter-in-law was initially abducted by her son, after the marriage their relationship was genial and cordial. She confirmed that on the fateful night, the couple had retired together and that in the next morning she noticed that her daughter-in-law was lying still on the bed and some water like substance was oozing out from her mouth. The witness stated that her son was not at home and returned only after three months. In cross-examination, the witness disclosed that for this period of three months, the accused appellant was in jail having been taken into custody by the police. She confirmed that her son loved her daughter-in-law. 11. PW 1, Ahim Daimary is a neighbour of the accused appellant. The witness reported absence of any discordance between the married couple. Though he confirmed to have seen the dead body in the house of the accused appellant, he stated that he did not notice any injury thereon. In cross-examination, he stated that the accused appellant was in jail thereafter for long three months. 12. PW 3, Mrs. Dipali Bhuyan at the relevant time was the Magistrate 1st Class at Morigaon. She claimed to have recorded the confessional statement of the accused appellant under Section 164, Cr.PC According to her, the accused appellant having been sent to her for recording the confessional statement by the then Chief Judicial Magistrate, Morigaon, she cautioned him that he was not bound to confess and that any confessional statement made by him might be used as evidence against him. The witness stated that the accused appellant was thereafter sent to jail hajot for reflection and to be brought before her on the next day. Accordingly the accused appellant was produced on the next day and after repeating statutory warnings and providing him time for reflection again, the statement was recorded at 1.30 p.m. She proved the Ext.1 to be confessional statement with her signature and that of the accused appellant. In cross-examination, the witness conceded that no signature of the accused appellant had been taken below the endorsement made in page 4 of the form for recording confession. In cross-examination, the witness conceded that no signature of the accused appellant had been taken below the endorsement made in page 4 of the form for recording confession. She also admitted that no certificate of ascertainment of the voluntariness of the confession made by the accused appellant had been appended. She denied the suggestion that the statement made by the accused appellant was not voluntary. 13. PW 4, Dibakar Tamuli, who at the relevant time was the Secretary of the Village Defence Party stated on oath that while he was at the police station to discuss some important matters, it was disclosed to him that the accused appellant had been apprehended in connection with a murder case. The witness claimed to have overheard the accused appellant disclosing to the police that he had surrendered himself as he had murdered his wife. In cross-examination, he denied the suggestion that the accused appellant had not told the police that he had killed his wife. 14. The informant, Dharmendra Bordoloi PW 5, stated inter alia that after the marriage the accused appellant used to assault his wife now and then and that the news of her death was intimated to him by the elder brother of the accused appellant. The witness stated that thereafter he went to the house of the accused appellant and found the dead body lying on bed. He also stated that at that point of time the accused appellant was not at home. He proved the FIR Ext. 2. In cross-examination, the witness however, conceded that he had not seen the assaults by the accused appellant on the deceased during her life time. 15. PW 6, Dr. Padmasing Bordoloi who had performed the postmortem examination on the dead body stated to have been found the following injuries: A dead body of female, young adult of average built and rigor mortis was present in both the limbs and eyes were half opened and blood clots in the nostril of little amount and upper and part of the neck was seen very congested. On dissection, it was full of blood clot. No ligature mark was seen and no fracture of Hyoid bone detected and injury mark present over the right elbow and the back of the body some reddish blood congestion detected and left breast was congested. On dissection, it was full of blood clot. No ligature mark was seen and no fracture of Hyoid bone detected and injury mark present over the right elbow and the back of the body some reddish blood congestion detected and left breast was congested. He opined that the death was due to shock as a result of "tight pressure" on the upper part of the neck by applying hands causing shock for asphyxia. He proved the carbon copy of the postmortem report Ext. 3. 16. PW 1, is the Investigating Officer who narrated the steps taken by him in course of the investigation which ended up with the charge sheet against the accused appellant. He in his testimony, referred to the voluntary statement of the accused appellant recorded by the learned Magistrate under Section 164, Cr.PC. 17. Having regard to the vital bearing of the confessional statement on the charge against the accused appellant, we have perused the records of the trial court in original and more particularly the form containing the recordings under Section 164 of the Code. On a scrutiny thereof, it transpires that no certificate is appended to the statement of the accused appellant. Apart from the fact that the endorsement of making a memorandum as referred to in the above provision of the Code is imperative, having regard to the serious prejudice likely to visit the accused on the application of his statement admitting his guilt, any omission in this regard has to be essentially construed to be fatal vitiating the exercise. The proposition is so well founded that no dilation is called for in this regard. 18. The Apex Court in Shivappa v. State of Karnataka (1995) 2 SCC 76 is a lode star in the firmament. We have therefore, no hesitation to discard the confessional statement (Ext.1) recorded in the instant case for the contravention of the mandatory requirement of Section 164(4), Cr.PC. It is, therefore, considered unnecessary to dwell upon the aspect of retraction thereof by the accused appellant in course of the statement recorded under Section 313, Cr.PC. 19. The evidence of PWs 1, 2, 4 and 5, on a conjoint reading however authenticate that in the night of the incident, the accused appellant and the deceased after their meal had gone into their room to sleep. 19. The evidence of PWs 1, 2, 4 and 5, on a conjoint reading however authenticate that in the night of the incident, the accused appellant and the deceased after their meal had gone into their room to sleep. In the morning the wife was found dead with water like substance oozing from her mouth. The accused appellant was not at home and had intact surrendered before the police in the morning whereafter he was released on the expiry of three months. The evidence of PW1 indicates that the relationship between the couple was normal and cordial. Though the PW5, the uncle informant sought to indicate ill treatment and assaults by the accused appellant he conceded to be not a privy thereto at any point of time. This witness also did not indicate presence of any injury on the body of the deceased. 20. The injuries indicated in course of the postmortem examination, however, establish that the death was homicidal in nature and the body bore the mark of asphyxia due to throttling of neck by hands. Though the findings do not disclose any ligature mark on the neck, the upper part thereof was found intensely congested with blood. 21. The testimony of PW7 to the effect that during his presence the accused appellant had admitted the guilt and the fact that he (accused appellant) had voluntarily surrendered before the police in the morning following the fateful night though not of any conclusive significance, but considered with the relationship between the parties, the situs of the dead body and the period during which the incident had occurred when both were closeted in the same room, we feel persuaded to hold that the complicity of the accused appellant, in the commission of the offence stands proved. Noticeably, there is no eye-witness to the incident. It is, therefore, not clear under what circumstances the accused appellant had to take the ultimate step. The evidence on record discloses the background in which the parties had come together in life. Though initially the deceased was abducted by the accused appellant, courtship followed blossoming into marriage. The mother-in-law of the deceased has been categorical in stating that the relationship between them was genial. PW5 though had alleged assaults by the husband, in cross-examination, he conceded that he was not a witness thereto. Though initially the deceased was abducted by the accused appellant, courtship followed blossoming into marriage. The mother-in-law of the deceased has been categorical in stating that the relationship between them was genial. PW5 though had alleged assaults by the husband, in cross-examination, he conceded that he was not a witness thereto. From the above, we are therefore inclined to hold that there was nothing odious in the relationship between the parties for the accused appellant to bear a grudge or to nurse an endeavour to do away with his wife as and when an opportunity was handy. In the above view of the matter, in absence of any direct evidence of his intention to commit the offence, we are of the opinion that in the facts and circumstances of the case, the charge that stands proved against him is one under Section 304, Part II of the Indian Penal Code. It is submitted at the Bar that the accused appellant is presently aged about 27 years and that he is in custody for about six and half years. We accordingly award a sentence of seven years of rigorous imprisonment with a fine of Rs.1,000 in default, to suffer further rigorous imprisonment for three months. 22. The conviction of the accused appellant therefore stands modified to one under Section 304, Part II, IPC and sentence to seven years rigorous imprisonment and fine of Rs.1,000 in default, to suffer rigorous imprisonment for further period of three months. The appeal stands allowed to the extent indicated hereinabove. No costs. Appeal allowed.