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2009 DIGILAW 579 (GAU)

Arjun Chahani v. State of Assam

2009-08-18

H.N.SARMA

body2009
JUDGMENT H.N. Sharma, J. 1. The conviction of the appellant under Section 304 (Part - II), IPC, and sentencing him to undergo RI for three years vide judgment and order dated 3.1.2002 passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 84 of 2000, is the subject matter of the present appeal. 2. I have heard Mr. A.C. Sarma, learned Counsel for the petitioner and Mr. K.A. Mazumdar, learned Additional P.P., Assam. 3. On the basis of an FIR lodged by one Smt. Fulmati Devi with the Officer-in-Charge, Morigaon Police Station, stating, inter alia, that the accused Arjun Chahani and others assaulted her son Ruplal Sahni on 2.1.1998 at about 12 Noon resulting his death on the spot, the Jagiroad PS Case No. 2 of 1997 under Sections 341/302/34, IPC, was registered. Upon registration of the case, the law of investigation was set into motion. During the course of investigation, the Investigating Officer visited the place of occurrence, prepared inquest report on the dead body, seized materials, sent the dead body for Post Mortem examination, recorded the statement of the witnesses, collected Post Mortem Report. At the investigation stage, the accused having expressed his desire to confess the guilt, his confessional statement was recorded by the learned SDJM, Morigaon on 5.1.1998. On the basis of the evidence, materials collected during the course of investigation and the confessional statements made by the accused, the I.O., having found prima facie case submitted charge sheet against the accused under Sections 341/302/34, IPC. 4. The case being exclusively triable by a court of Sessions, the learned CJM, Morigaon, committed the same to the court of Sessions, Morigaon, for necessary trial, wherein it was registered as Sessions Case No. 84 of 2000. 5. The learned trial Judge on the basis of the materials available on records and upon hearing the prosecution and the defence framed charge under Section 302, IPC, vide order dated 3.11.2000 to which the accused pleaded not guilty and claimed to be tried. 6. During the course of trial the prosecution examined as many as 8 PWs. The defence also examined 2 DWs. After closer of the examination of the witnesses, the accused was examined under Section313, Cr. P.C. by putting the circumstances that appeared against him from the evidence of the prosecution witnesses, which was denied by the accused. 6. During the course of trial the prosecution examined as many as 8 PWs. The defence also examined 2 DWs. After closer of the examination of the witnesses, the accused was examined under Section313, Cr. P.C. by putting the circumstances that appeared against him from the evidence of the prosecution witnesses, which was denied by the accused. The learned trial judge upon consideration of the materials available on records including the confessional statements convicted him under Section 304, Part-II, IPC and sentenced him as aforesaid. Challenging the aforesaid judgment and order dated 3.1.2002 the accused filed this appeal. 7. Mr. Sarma, learned Counsel, appearing on behalf of the accused submits that in the instant case there is no reliable evidence and sufficient materials on record to sustain the conviction of the accused and the conviction having solely rested on the basis of retracted confessional statement of the accused, the same is not sustainable, inasmuch as, there is no corroboration of evidence by any independent witness as regards the said retracted confessional statement. 8. The learned Additional P.P., Assam, on the other hand, supported the judgment and as rendered by the learned trial judge. 9. Submissions of the learned Counsel for the parties led me to go through the statements of the witnesses both prosecution and defence as well as other materials on records. 10. One of the peculiar circumstances of the case in hand is that the victim is the brother-in-law of the accused and PW1, Smt. Akali Devi, is the mother who happens to be the mother-in-law of the victim whereas PW4 is the mother of the victim. The wife of the victim is the own sister of the accused and was examined as DW2. In view of the relationship of the accused, victim and the witnesses, the natural human tendency to save the accused appears to have been evoked in the mind of the witnesses as deciphered from their statements. Let us examine the statement of the witnesses. 11. PW1, Smt. Akali Devi, in her deposition stated that the victim was her son-in-law and the accused is her son. The occurrence took place three years ago on 2nd January, 1998, at about 12/1.00 P.M. At the time of occurrence she was inside her house. After hearing commotion she came out and a little before her the accused came out of the house. The occurrence took place three years ago on 2nd January, 1998, at about 12/1.00 P.M. At the time of occurrence she was inside her house. After hearing commotion she came out and a little before her the accused came out of the house. She saw 3/4 persons wearing turbans chasing and beating a person she and her husband also ran after them she could not recognize them as they fled away on the half way. Then she saw that the victim Ruplal was lying in a pool of blood. They brought the victim to their house and thereafter, she informed the family members of the victim. So many people assembled there but the victim Ruplal breathed his last. This witness was not cross-examined. 12. PW2 is the then SDJM, Morigaon, who recorded the confessional statement of the accused. In his deposition he stated that the accused was produced before him on 3.1.1998 at about 3.00 P.M. for recording his confessional statement. As there was no time, he remanded the accused to the judicial custody directing to produce again before him on 5.1.1998. When the accused was produced on 5.1.1998 at about 11.00 A.M., he explained him in Assamese that he is not a police officer but a Magistrate and he is not bound to make the confession. If he did so it would be used as evidence against him and that he was at liberty to say whatever he desired to say but he should not say anything, which are untrue or others told him to say. Even if he does not confess, he would not be sent to the police custody. To ascertain as to whether the confession is voluntary or not, PW2 questioned the accused whether there was any other reason for confession. Accused replied that out of remorse he proposed to confess. Thereafter the accused was given three hours time for reflection and accordingly, the accused was kept in his chamber under the custody of his peon. Before recording of the confessional statement, he again warned the accused that his confessional statement will be used against him as evidence. When the accused replied that he is going to confess voluntarily and being satisfied he recorded his confessional statement. Ext-1 is the Confessional Form. Ext-1(1) is the confessional statement of the accused. Ext-1(2) is the question put to the accused. When the accused replied that he is going to confess voluntarily and being satisfied he recorded his confessional statement. Ext-1 is the Confessional Form. Ext-1(1) is the confessional statement of the accused. Ext-1(2) is the question put to the accused. Ext-1(3) is his statement for believing that the confession was voluntary. Ext-1(4) and 1(5) is the signatures of the accused put in his presence. Exts-1(6), 1(7), 1(8), 1(9) and 1(10) are his signatures. In cross-examination, this witness stated that the accused was first arrested by the police on 2.1.1998 at about 3.00 P.M. He denied suggestion that the accused made the confession due to the fear of police as at the time of reflection the door of his chamber was open and the police personnel were moving in front of it. He also denied the suggestion that the time given for reflection was not sufficient. 13. PW3 is the doctor who performed post mortem on the dead body and found the following injuries on the dead body. Injuries: (1) Lacerated wound on the left outer canthus of eye 4 cm x 3 cm x 1 cm. (2) Lacerated wound on the nasal bridge 3 cm x 2 cm x 2 cm with blood clotting. (3) Lacerated wound on left angle of mouth 3 cm x 2 cm x 1 cm with blood clotting. (4) Lacerated wound on the left temporal region 4 cm x 3 cm x 2 cm with ingrowing of temporal bone. Cranium and Spinal Canal: Scalp: Lacerated wound as described earlier. Skull: (1) Fracture nasal bone, (2) Fracture left zygomatic bone and (3) Ingrowing fracture left temporal bone. Membrance: Lacerated injuries on the left temporal region. Brain lacerated on left temporal and frontal region. Thorax: Walls healthy, pleurae pale but healthy, laryax and trachere healthy, lungs healthy but pale, pericardium pale, heart left side empty right side full of blood, vessels healthy. Abdomen: Walls healthy, pertonoum pale but healthy, mouth, pharynx, oesophagus contains only gastric juices, small intestine contains gas and faecal matter, large intestine contains gas and faecal matter. Liver, spleen and kidneys are pale, bladder contains 100 cc of urine. Organs of generation, external and internal is healthy. In the opinion of the doctor, the death was cause due to coma as a result of head injury sustained by the deceased and all the injuries are ante mortem in nature. 14. Liver, spleen and kidneys are pale, bladder contains 100 cc of urine. Organs of generation, external and internal is healthy. In the opinion of the doctor, the death was cause due to coma as a result of head injury sustained by the deceased and all the injuries are ante mortem in nature. 14. PW4, Smt. Fulmati Devi, in her deposition she stated that the victim was her son. About three years ago at 11/12 Noon, one Raja Ram Chahani informed her that Joleswar and Arjun have killed Ruplal and thrown him on the road near the house of Joleswar. She Raja Ram and one Sushila immediately went to the place of occurrence where they saw that Ruplal was lying dead. She saw cut injuries near the eyes of the victim. Thereafter she lodged the FIR by putting her thumb impression. In cross-examination, PW4 stated that when Raja Ram informed her about the incident at that point of time Sushila was also present along with her. The house of the accused is at half of a kilometer away from her house. She saw the dead body of Ruplal in the courtyard of the accused. There were about 10/12 persons present at that time. 15. PW5, Shri Pradip Deka, in his deposition stated that the occurrence took place about four years ago. On the day of occurrence at about 12.00 Noon Smt. Akani Devi informed him about the incident. He went to the place of occurrence where he saw the dead body of Ruplal covered by a cloth and amongst other villagers the President of VDP was also present. He informed the police about the incident. Thereafter the police reached the place of occurrence and seized materials. Ext-1 is the seizure list. Ext-1(1) is his signature. In cross-examination, this witness stated that he knew Smt. Fulmati Devi. After he reached the place of occurrence, the Secretary of the VDP called up Smt. Fulmati Devi. He did not know as to how Ruplal was died. He verbally informed the Police. 16. PW6, Shri Taneswar Deka, in his deposition stated that on the day of occurrence Smt. Akani Devi at about 12.15 P.M. informed him that. Ruplal was injured. Accordingly, he went to the place of occurrence where he saw that the body of Ruplal was covered by a cloth. He saw injuries on the face of the victim. 16. PW6, Shri Taneswar Deka, in his deposition stated that on the day of occurrence Smt. Akani Devi at about 12.15 P.M. informed him that. Ruplal was injured. Accordingly, he went to the place of occurrence where he saw that the body of Ruplal was covered by a cloth. He saw injuries on the face of the victim. He along with Gaonburah went to the Police Station. The Police came to the place of occurrence and seized materials. In the seizure list the police obtained his signature. Ext-1(2) is his signature. In cross-examination, this witness stated that he did not know what kind of materials seized by the police. Before he reached the place of occurrence about 100/150 people assembled there. He did not know how the incident took place. 17. PW7, Shri Dimbeswar Saikia, in his deposition stated that he knew the accused and the victim. About four years ago incident took place. The mother of Shri Arjun Chahani informed him about the incident. When he reached the place of occurrence, he saw that a cloth covered the dead body and he could see the injuries on the face of the dead body. In cross-examination, this witness stated that he went to the place of occurrence along with the Gaonburah. 18. PW8 is the I.O., who investigated the case. He stated that on 2.1.1998 he was attached to the Jagiroad Police Station. The Officer-in-Charge of the Jagiroad Police Station entrusted him to investigate the case. He visited the place of occurrence, recorded the statement of the witnesses, seized a Bhaluka bamboo stick, sent the dead body to the Morigaon Civil Hospital for post mortem, arrested the accused persons and after completion of the investigation submitted charge sheet against the accused Arjun Chahani. Ext-1 is the seizure list. Ext-1(3) is his signature. Ext-2 is the FIR. Ext-2(1) is the signature and note of the Officer-in-Charge of the Jagiroad Police Station. In cross-examination, this witness stated that he prepared the sketch map, in the beginning assault took place on the road as shown in the sketch map, although Shri Cheniram and Kumbar Deka were shown as neighbours, their statements were not recorded. 19. After completion of recording of the statements of the witnesses, the accused was examined under Section 313, Cr. P.C., putting to him the circumstances that appeared against him during the course of the trial including his confessional statement. 19. After completion of recording of the statements of the witnesses, the accused was examined under Section 313, Cr. P.C., putting to him the circumstances that appeared against him during the course of the trial including his confessional statement. As regards the question regarding finding of the dead body in his courtyard, the accused replied that the dead body was in the courtyard as some other people assaulted the victim and left him on the road. As the deceased was his brother-in-law, he brought the victim to his courtyard and after a while he died. 20. The accused examined two DWs in support of his defence. DW1, Chaniram Saikia, stated that at the time of occurrence he was inside his house and after hearing commotion, he came out and found that Ruplal was breathing his last. He lifted him to the courtyard of his father-in-law and after while he died. He did not know who has assaulted the victim. DW2 is the wife of the deceased and sister of the accused. She stated that on the day of occurrence, she, her mother-in-law and Fulmati Devi, were inside the house. At about 12.00 Noon, the VDP Secretary came to their house and informed her that someone had killed her husband and left him about a furlong distance from their house. She and her mother-in-law went to the place of occurrence but saw that her husband was lying dead in the courtyard of the accused. She stated that and her husband went out on 1st January and did not return. There was no difference or dispute of her husband with the accused. In cross-examination, this witness stated that she did not know as to whether the accused or some other persons have assaulted her husband. 21. On careful perusal of the statement of PWs-1, 4, 5, 6, 7 and 8, it is seen that they have not directly attributed the guilt to the accused. All of them in one voice only stated that the dead body of the victim was lying in the courtyard of accused. It is also stated that occurrence took place on 2.1.1998 as a result of which the victim Ruplal expired. The statement of PW1, Smt. Akani Devi, was also recorded under Section 164, Cr. P.C., by the SDJM, Morigaon, on 3.1.1998. In her statement she categorically stated that the accused Arjun Chahani killed the victim. It is also stated that occurrence took place on 2.1.1998 as a result of which the victim Ruplal expired. The statement of PW1, Smt. Akani Devi, was also recorded under Section 164, Cr. P.C., by the SDJM, Morigaon, on 3.1.1998. In her statement she categorically stated that the accused Arjun Chahani killed the victim. In giving description of the incident she stated that at about 7 A.M. an the day of occurrence, the victim, while was going in front of their house, he abused her with filthy language. She further stated that about 2 years back Ruplal enticed her daughter and eloped her daughter Sushila. There was no difference or dispute regarding this matter but her daughter Sushila did not come to their house since then. Her statement recorded under Section 164, Cr. P.C., was not confronted to her during the course of her deposition. PW2, SDJM, Morigaon, who recorded the confessional statement of the accused has specifically stated about the nature of care taken by him before recording the confessional statement and when he found it to be voluntary in nature, he recorded the confessional statement. It is recorded in Ext-1 that the accused was initially produced before him for recording the statement on 3.1.1998 but due to scarcity of time the accused was sent to the judicial custody and the accused as again produced on 5.1.1998. Thus the accused has no apprehension of police while he was under judicial custody. That apart, he also given sufficient time for three hours for reflection. The accused has categorically stated in his confessional statement that the victim was his brother-in-law and by killing him he felt shock because his sister has become widow and he would not get peace in mind in near future. He further stated that on the date of occurrence, the victim was abusing his mother and sister and alter killing him he dragged his body to their courtyard where he died. It is also on record that after commission of the offence, the accused was apprehended by the villagers and handed over to the police. The SDJM, Morigaon, PW2, while recording the confessional statement duly complied with the requirements of Section 164, Cr. P.C. Sufficient time was given to the accused for necessary reflection but he was adamant to make his confession. Although the accused stated in his examination under Section 313, Cr. The SDJM, Morigaon, PW2, while recording the confessional statement duly complied with the requirements of Section 164, Cr. P.C. Sufficient time was given to the accused for necessary reflection but he was adamant to make his confession. Although the accused stated in his examination under Section 313, Cr. P.C., that out of fear he confessed such plea was not taken during cross-examination of PWs. As stated above, the accused was in judicial custody since 3.1.1998 and apprehension or police threat is not supported by the circumstances under which his statement was recorded. 22. Arguing the requirement of corroboration of the retracted confession to form the basis of conviction, Mr. A.C. Sarma, learned Counsel for the appellant, relied on the decision of the Apex Court in the case of Paramananda Pegu vs. State of Assam, AIR 2004 SC 4197 and Dangarbabu Modi and Suren Modi vs. State of Assam, (1994) 1 GLR 398 . The learned P.P., Assam, on the other hand, relied on the decision of the Apex Court in the case of Aloke Nath Dutta and other vs. State of West Bengal, (2007) 12 SCC 230 and Bishnu Prasad Sinha and another vs. State of Assam, (2007) 11 SCC 467 . 23. The judicial pronouncement of rules as regards use of retracted confession are-1, a confession is not to be regarded as involuntary or unlawfully induced merely because it has been retracted at the trial 2, as against the maker, a retracted confession may form the basis of conviction, if believed to be true and voluntarily made 3, Better point of view is that a retracted confession must be regarded with suspicion and as a rule of practice and prudence it is unsafe to base a conviction on retracted confession alone without independent corroboration. The use of such a confession is a matter of prudence rather than of law. 24. In the case of Bishnu Prasad Sinha (supra), the Apex Court held that in case of sufficient material is brought on record to lend assurance to the court in regard to the truthfulness of the confession made, which is corroborated by several independent circumstances lending assurance thereto, even a retracted confession may be acted upon. 25. 24. In the case of Bishnu Prasad Sinha (supra), the Apex Court held that in case of sufficient material is brought on record to lend assurance to the court in regard to the truthfulness of the confession made, which is corroborated by several independent circumstances lending assurance thereto, even a retracted confession may be acted upon. 25. In the case of Paramananda Pegu (supra), the Apex Court referring to the case of Pyare Lal vs. State of Rajasthan, AIR 1963 SC 1094 , held at paragraph-19 of the judgment as follows: In Pyare Lal, supra the same principle in regard to the evidentiary value of retracted confession has been reiterated. Subba Rao, J, speaking for a four Judge Bench, stated the legal position thus: A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. By use of the expression 'corroboration' of material particulars' the court has not laid down any proposition contrary to what has been clarified in Subramania Goudan's case (supra) as regard the extent of corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goudan's case. 26. Similarly in the case of Aloke Nath Dutta (supra), reiterated at paragraph 108 of the judgment as follows: The courts while applying the law must give due regard to the past experience. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goudan's case. 26. Similarly in the case of Aloke Nath Dutta (supra), reiterated at paragraph 108 of the judgment as follows: The courts while applying the law must give due regard to the past experience. The past experience of the courts as also the decisions rendered by the superior courts should be taken as a wholesome guide. We must remind ourselves that despite the fact that procedural safeguards contained in Section164, Cr. P.C., may be satisfied, the courts must look for truthfulness and voluntariness thereof. It must, however, be remembered that it may be retracted subsequently. The court must, thus, take adequate precaution. Affirmative indication of external pressure will render the retracted confession nugatory in effect. The court must play a proactive role in unearthing objective evidence forming the backdrop of retraction and later the examination of such evidence of retraction. However, in cases where none exists, the court must give the benefit of doubt to the accused. Where there is no objective material available for verifying the conditions in which the confession was retracted, the spirit of Section 24 of the Evidence Act (irrelevance of confession caused by inducement) may be extended to retracted confession. An inverse presumption must be drawn from absence of materials. 27. Relying on the earlier pronouncement of the Apex Court, as regards voluntary evidentiary value of the confessional statement, pointed out that there cannot, however, be any doubt or dispute that although retracted confession is admissible, the same should be looked at with some amount of suspicion a stronger suspicion than that which is attached to the confession of an approver who leads evidence in the court. 28. Taking note of the principle of law as emerged from various decisions of the Apex Court including the decisions cited above that retracted confession can be used as (sic) the accused, if there is some corroboratory material and the court is satisfied as true. But from the records as indicated above we find that the confessional statement of the accused is true and the learned SDJM, Morigaon, while recording the confessional statement has taken each and every care to elicit the truth from the accused. But from the records as indicated above we find that the confessional statement of the accused is true and the learned SDJM, Morigaon, while recording the confessional statement has taken each and every care to elicit the truth from the accused. Various witnesses have witnessed the occurrence in question and the statements of the witnesses produce a strange circumstance that the dead body of the victim was recovered from the courtyard of the accused. The accused was apprehended by the villagers and handed over to the police. The basis of retracted confessional statement is that the accused was made to confess by the external force may be from the I.O., or by any other and the conscience of the court should be clear that such statement is not made on the basis of threat or apprehension of police. In the instant case from the materials available on record clearly demonstrate that the statement of the accused was true and voluntary. In such a situation, the accused retracted from his earlier confessional statement on his examination under Section 313, Cr. P.C. and the ground of such retraction is hot supported by any record of the case, inasmuch as, no immediate threat upon the accused for making confessional statement is present while he was put under the judicial custody. 29. In view of the aforesaid discussions and in the facts and circumstances of the present case, the conviction on the basis confessional statement of the accused though retracted later on, cannot be said to be illegal, unjust or improper. The learned trial Judge has dealt the accused leniently in awarding the punishment in comparison to his guilt. It is further noticed that conviction of an accused under Section 304, Part-II, IPC, is imprisonment, which may be extended up to 14 years and fine. In the instant case, the learned trial Judge has sentenced the accused only for three years without imposing any fine. In view of the facts and circumstances of the case and the leniency shown by the trial judge and in the absence of any serious objection from the State I am not inclined to interfere with the sentence. 30. The appeal accordingly stands dismissed. The accused is directed to surrender before the learned trial court to serve out the sentence. The period undergone shall be set off. 31. Send down the records forthwith. Appeal dismissed.