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2009 DIGILAW 690 (GAU)

State of Arunachal Pradesh v. Tai Ngomdir

2009-09-22

B.D.AGARWAL, I.A.ANSARI

body2009
JUDGMENT B.D. Agarwal, J. 1. This reference application under the provisions of Section 30(1) of the Assam Frontier (Administration of Justice) Regulation, 1945 has been made by the learned Additional Sessions Judge (FTC), Basar to confirm the conviction of the Tai Ngomdir under Sections 302, 201, 363 and 342 of the Indian Penal Code (IPC). The appellant has been convicted under the aforesaid provisions of IPC vide judgment and order dated 10.7.2007 and 11.7.2007 passed in BSR/Sessions Case No. 507 of 2004. Under this judgment the appellant has been sentenced to undergo imprisonment for life and also to pay fine of Rs. 5000 with default sentence of rigorous imprisonment for 6 (six) months for conviction under Section 302, IPC and 4 (four) years rigorous imprisonment with fine of Rs. 2000 and default sentence of rigorous imprisonment for 3 (three) months have been awarded under Section 201, IPC. Sentences for other offences have been set-off. 2. It is a case of homicidal death of a 10 years old boy. The prosecution case in a nutshell is that the deceased child was the son of Sri. A.K. Barnwal, who was working as Junior Engineer in Rural Works Department (RWD), and the accused-respondent is the son of a retired peon of the said department. The respondent was also living in the same locality, i.e., in the RWD colony at Yingkiong. On 26.12.2003, the respondent with an ulterior motive to kidnap the deceased boy for ransom came to the house of his brother in law Momar Angu. However, at the relevant time the said Momar Angu was not at home. Hence, the respondent waited for the deceased sitting at the veranda of the house. At about 1.30 pm, the deceased boy was going towards air field area to play with friends. At that point of time the deceased was called by the respondent in the house of Momar Angu and attempted to detain him. However, the deceased became restless and started crying. Having failed to take control of the child the respondent gagged his mouth and after his death the dead body was packed in a gunny bag and it was dumped/buried in a drain. When the boy was found missing, his parents and the people of the locality searched for the child and the dead body was recovered on the next morning. 3. When the boy was found missing, his parents and the people of the locality searched for the child and the dead body was recovered on the next morning. 3. After the recovery of the dead body of the child, the, FIR was lodged by the father of the deceased. It was registered as Yingkiong Rs. Case No. 40 of 2003 under Sections 364/302, IPC. As usual inquest and autopsy were also conducted on the dead body. Rough sketch map of the place of occurrence was also prepared by the Investigating Officer and the statements of witnesses were also recorded. Wearing apparels of the deceased and the gunny bag were also formally seized. Identical gunny bag and identical electric wire, which were used in bundling the dead body, were noticed in the house of Momar Angu and those were also seized by the I.O. Thereafter, the said Momar Angu and his wife and son were intensively interrogated. During interrogation son of Momar Angu disclosed that on the relevant day his maternal uncle, i.e., Tai Ngomdir was in their house and he even did not allow him to go inside. On these revelations by the son of Momar Angu the I.O., also interrogated the respondent, who disclosed before the Investigating Officer that he had killed the child in conspiracy with Momar Angu to squeeze money from his parents. 4. After his arrest on 5.2.2004 the respondent was produced before the judicial Magistrate, before whom, the respondent Tai Ngomdir gave confessional statement under Section 164 of the Code of Criminal Procedure, 1973 (briefly Cr. PC) on 24.2.2004. Ext-2 is the said statement. On the basis of confessional statement and order evidence collected during investigation two persons, namely, Momar Angu and the present respondent were charge sheeted for the offence of murder and other offences. After commitment of the case, both the persons faced trial under Sections 369, 347, 302, 201, 120B read with Section 34 of the IPC. 5. The prosecution examined altogether 10 witnesses. PW2 is the father of the deceased, PW8 is autopsy doctor, PW9 is the Judicial Magistrate, PW6 and 10 are the Police Officers and the remaining witnesses are co-villagers who had taken part of the recovery of the dead body and seizure of the articles. After trial sufficient evidence were not found against the co-accused Momar Angu and accordingly he was acquitted from all the charges. After trial sufficient evidence were not found against the co-accused Momar Angu and accordingly he was acquitted from all the charges. However, the accused respondent, Tai Ngomdir has been convicted under Sections 302, 201, 363 and 342 of the IPC. Since the sentences awarded under Section 363, 342, IPC, were already covered by the period of detention, no separate sentence was awarded for the aforesaid offences. However, the respondent has been remanded to custody to undergo concurrent imprisonment awarded to him for the offences under Sections 302 and 201, IPC. Hence, this reference application has been submitted by the trial court. 6. As could be gathered from the record, the conviction of the respondent basically rests upon his confessional statement, given before the judicial Magistrate. Hence, we have to examine as to whether the said statement is admissible in evidence and, if so, whether confessional statement is sufficient to uphold the conviction, if not, whether there are corroborative evidence to fortify the confessional statement. 7. The Evidence Act does not define confession. Sections 24, 25 and 26 of the Evidence Act, 1872 have laid down the circumstances which make confessional statement of accused persons inadmissible in evidence. Under Section 24 if a confession is made by an accused on inducement, threat or promise is irrelevant in criminal proceeding. 8. Section 25 prohibits use of any such confessional statement made before a police officer and Section 26 empowers the court to act upon a confessional statement made by an accused, whilst in the custody of a police officer, provided the same is made in immediate presence of a Magistrate. Section 164 of the Cr. PC has laid down the guidelines for recording of confessional statement of accused persons and also statements of witnesses. 9. Till six decades ago even admission made by a person charged with a crime was considered to be his or her confession. However, in the case of Pakala Narayana Swami vs. King Emperor, AIR 1939 PC 47, the Privy Council did not accept the theory of admission of facts suggesting an inference that the maker/author of such statement had committed the crime would amount to his or her confession. The Hon'ble Privy Council laid down that no statement, containing self-exculpatory matter, would amount to confession if the exculpatory statement of some facts, which, if true, would negative the offence alleged to have been confessed. The Hon'ble Privy Council laid down that no statement, containing self-exculpatory matter, would amount to confession if the exculpatory statement of some facts, which, if true, would negative the offence alleged to have been confessed. It was further pointed out in the case of Pakala Narayan (supra) that the word confession as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. Lord Atkin observed that a confessor must either expressly admit the offence or at any rate, substantially all the facts, which constitute the offence. This view is consistently followed. One can refer to the judgments of the Hon'ble Supreme Court rendered in the case of Palvinder Kaur vs. State of Punjab, AIR 1952 SC 354 , Om Prakash vs. State of U.P. AIR 1959 SC 205, A Nagesia vs. Bihar State, AIR 1965 SC 79 , and Faddi vs. State of Madhya Pradesh, AIR 1964 SC 57. 10. In the case of Central Bureau of Investigation vs. V.C. Shukla, AIR 1998 SC 1406 , the Apex Court brought the admission of guilt of accused persons as admissible evidence within the sweep of Section 21 of the Evidence Act. The relevant observations of the Apex Court are reproduced below: 45. It is, thus, seen that only voluntary and direct acknowledgement of guilt is a confession but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it or his authorized agent as an admission under Section 21. The law in this regard has been clearly and-in our considered view correctly explained in Monir's Law of Evidence (New Edition at pages 204 and 206), on which Mr. Jethmalani relied to bring home his contention that even if the entries are treated as 'admission' of Jains still they cannot be used against Shri Advani. The relevant passage reads as under "the distinction between admission and confession is of considerable importance for two reasons. Jethmalani relied to bring home his contention that even if the entries are treated as 'admission' of Jains still they cannot be used against Shri Advani. The relevant passage reads as under "the distinction between admission and confession is of considerable importance for two reasons. Firstly, a statement made by an accused person, if it is an admission, is admissible in evidence under Section21 of the Evidence Act, unless the statement amounts to a confession and was made to a person in authority in consequence of some improper inducement, threat or promise, or was made to Police Officer, or was made at a time when the accused was in the custody of Police Officer. If a statement was made by the accused in the circumstances just mentioned, its admissibility will depend upon the determination of the question whether it does not amount to a confession. If it amounts to a confession, it will be inadmissible, but if it does not amount to a confession, it will be admissible under Section 21 of the Act as an admission, provided that it suggest an inference as to a fact which is in issue in, or relevant to, the case and was not made to a Police Officer in the course of an investigation under Chapter XIV of the Code of Criminal Procedure. Secondly, a statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession it is admissible only against its maker as an admission, and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30of the Evidence Act also the distinction between an admission and a confession is of fundamental importance. 11. In Keshoram Bora vs. State of Assam, AIR 1978 SC 1096 , the question was raised before the Apex Court that it is not open to the court to take the inculpatory part of the statement and reject the exculpatory part. However, their Lordships' rejected the contention, holding that 'confessions' and 'admissions' are separable and there can be no objection of taking of one part into consideration which transpires to be true and reject the other part, which appears to be false. However, their Lordships' rejected the contention, holding that 'confessions' and 'admissions' are separable and there can be no objection of taking of one part into consideration which transpires to be true and reject the other part, which appears to be false. This view was taken on the basis of Constitution Bench decision of the Hon'ble Supreme Court rendered in the case of Nishi Kant Jha vs. State of Bihar, AIR 1969 SC 422 , wherein the Apex Court held that if the exculpatory part of the statement can be safely rejected, being found inherently improbable, in the light of other evidence on record, there is no impediment in law for the court to act upon inculpatory part of the statement. 12. As noted earlier the Evidence Act neither defines 'judicial confession' nor 'extra-judicial confession'. With regard to the evidentiary value of the judicial confessions, the Hon'ble Supreme Court has held in a catena of judgments that the conviction can be recorded on the sole basis of judicial or extra-judicial confessions. Without multiplying authorities on this point, I would just refer to the judgment of the Hon'ble Apex Court, rendered in the case of State of Maharashtra vs. Raja Ram, (2003) 8 SCC 180 . In this case their lordships' while examining the evidentiary value of an extra-judicial confession, held that if such confession is found to be voluntary and true and made in a fit state of mind the same can be relied upon by the court. Their Lordships further observed that it is not open to any court to start with a presumption that extrajudicial confession is a weak type of evidence. 13. Dealing with the evidentiary value of confessional statement both judicial and extra-judicial, and referring to the case of R. vs. Warickshall, 168 ER 234, their Lordships summarized the legal strength of a confessional statement in the following words: A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. 14. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. 14. The legal principle regarding evidentiary value of confessional statement taken in the case of Raja Ram (supra) has been followed in the case of Aloke Nath Dutta vs. State of West Bengal, (2007) 12 SCC 230 and also in the case of Bishnu Prasad Sinha vs. State of Assam, 2008 (2) GLT (SC) 1. The probative value of un-retracted confessional statement has been enunciated by the Apex Court in the case of Bishnu Prasad Sinha case (supra) in this way: 31. A confessional statement, as is well known, is admissible in evidence. It is relevant fact the court may rely thereupon if it is voluntarily given. It may also form the basis of the conviction, where for the court may only have to satisfy itself in regard to voluntariness and truthfulness thereof and in given cases, some corroboration thereof. A confession which is not retracted even at a later stage of the trial and even accepted by the accused in his examination under Section 313 of the Code, in our considered opinion, can be fully relied upon. 15. Needless to say that extra-judicial confession can be made before any person and not necessarily before persons in authority nor is there any requirement of law that extra-judicial confession must be taken down in writing. On the other hand, judicial confessions have the sanction of law inasmuch as Section 164, Cr. PC prescribes the methodology for recording confessions. The Gauhati High Court has also framed rules with regard to recording of confessional statements, laying down pre-conditions for recording confessional statements with a view to find out whether the accused volunteers to give indictable statement on his/her own volition and that such statement contains a full and true account of the incident. The statutory guidelines for recording confessional statements provided under Section 164, Cr. PC and the statutory form prescribed by the High Court are nothing but salutary safeguard to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. The statutory guidelines for recording confessional statements provided under Section 164, Cr. PC and the statutory form prescribed by the High Court are nothing but salutary safeguard to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. In this way, confessions made before judicial Magistrates carry more weight and stand on higher footing than extra-judicial confessions. 16. Hence, we find no difficulty to hold that there is no legal impediment to record conviction on the sole basis of confessional statement, provided the same is found to have been made voluntarily, without any inducement, threat or promise or is otherwise not hit by Sections 25 and 26 of the Evidence Act. 17. In the backdrop of the aforesaid legal position regarding evidentiary value of confessional statement, we would now proceed to examine the nature of indictable statement made by the respondent before a judicial Magistrate. For better appreciation, the relevant parts of the confessional statements are reproduced below: On 26th December, 2003 at about 11.00 hrs., I visited the resident of my brother-in-law, Momar Angu. It was a casual visit but no body was there in the house. So I took a Mura and sat in the veranda. In the meantime, I saw Master Rishu Kr. Barnwal, the victim, who was moving in the roadside. I invited the boy inside the house and had a talk. The boy was frightened and started crying finding no other people when we were sitting together in the bedroom of my brother-in-law. I stopped him to go outside the house. I could not controlled the situation as the boy was very smart and crying louder and louder. So out of fear I gagged the boy for 10 to 15 minutes, then ultimately the boy expired in the spot. Thereafter I put the death (sic-dead) body inside a gunny bag. Finding no one outside the house, I took the death (sic-dead) body to the jungle and hide there near a nullah and then I went to my home. In the meantime, the news of missing of the boy spreading and the people were searching here and there but they could not recovered the death (sic-dead) body. In the night at around 11 pm, Shri Momar Angu came to my house. I told him the whole story of the murder of the boy. In the meantime, the news of missing of the boy spreading and the people were searching here and there but they could not recovered the death (sic-dead) body. In the night at around 11 pm, Shri Momar Angu came to my house. I told him the whole story of the murder of the boy. Thereafter, we went together to the jungle and buried the death body. My motive of kidnapping and killing the boy was to demand ransom amount from the parent. As I have already told you that myself and my brother-in-law Shri Momar Angu had a plan to kidnap little boy for ransom amount, the proposal was masterminded by both of us long back ago. What I have told to you is the true story. I confessed before you that I have committed a heinous crime by killing a minor boy. That's all. 18. At this stage, we make it clear that the offence of murder was committed on 26.12.2003 but the respondent was arrested only on 5.2.2004. Thereafter, the respondent was remanded to judicial custody and nearly after about 3 weeks of judicial custody the confessional statement was made on 24.2.2004. The said statement has been proved as Ext. 2. It appears that the confessional statement was recorded after observing all the formalities, like giving time for reflection and also putting searching questions to ascertain that the statement was not given under pressure or inducement by any one. The statement was recorded by PW9 and during the cross-examination the judicial Magistrate was not given any suggestion that the confessional statement was made under threat or inducement or that it does not contain a true account of the incident. 19. The only aspect that is required to be examined by us is as to whether the statement of the respondent can be said to be a 'confessional statement' in true sense. No doubt the accused/respondent has tried to explain the circumstances under which the boy was gagged to death. However, the fact remains that the respondent has acknowledged in unambiguous terms that the boy died due to continuous gagging of his mouth for 10/15 minutes. In the later part of the statement the respondent has added that the deceased boy was kidnapped to demand ransom amount from his parents and this conspiracy was hatched in collusion with his brother-in-law, Momar Angu (since acquitted). In the later part of the statement the respondent has added that the deceased boy was kidnapped to demand ransom amount from his parents and this conspiracy was hatched in collusion with his brother-in-law, Momar Angu (since acquitted). Be that as it may, Ext. 2 does not contain any exculpatory statement to take a view that the same cannot be considered as confessional statement or to entertain any reasonable suspicion that there was any person other than the respondent, particularly the co-accused Momar Angu, was involved in the offence of murder. 20. In fitness of things, the confessional statement of the respondent was enough for the trial court to convict him for the offence of murder. However, in the instant case the confessional statement of the accused/respondent was backed by his admissions before the judicial authorities at other stages also. The first admission of guilt was made by the respondent at the time of framing of charges on 4.10.2005. When the charges, including the charge of murder, were read over and explained to the accused persons, the co-accused Momar Angu declined to plead guilty, whereas the respondent-accused, Tai Ngomdir pleaded guilty. Hence, a separate statement was recorded by the learned Addl. Sessions Judge. In this statement, the respondent informed the court that he was pleading guilty out of repentance. After saying so the accused narrated the entire story that led to homicidal death of Master Alok @ Rishu. In this statement the respondent stated that he knew the deceased boy being the son of one Barnawal, who was a Junior Engineer and a resident of RWD colony. The accused further stated that at about 12 Noon he came to the house of Momar Angu and found none in the house and then he sat in the veranda. The accused further stated that seeing the boy he called him and after some time the boy started crying and then he gagged the mouth of the boy and having found him dead the body was packed in a gunny bag and buried the same near the air field. 21. In the case of State of Mizoram vs. Ramengmamia, 2006 (2) GLT 762, this High Court has held that conviction on the plea of guilt is discretionary. It has further been held that before accepting such plea under Section 229, Cr. 21. In the case of State of Mizoram vs. Ramengmamia, 2006 (2) GLT 762, this High Court has held that conviction on the plea of guilt is discretionary. It has further been held that before accepting such plea under Section 229, Cr. PC the court should be satisfied that the facts placed before it sufficiently constitutes the offence, charged with, It has further been held that the court must take care, before acting on such plea, to ensure that the plea of the accused is voluntary, clear and unambiguous and that the accused understood the implications of such admissions. 22. In the present case, although the respondent pleaded guilt of kidnapping and murdering the boy, followed by concealing the dead body, the learned trial judge considered it appropriate not to convict the accused-respondent on the basis of his admission and instead proceeded to hold a regular trial. 23. The 2nd admission was made at the time of giving statement under Section 313, Cr. PC. The learned Judge laid almost all incriminating evidence found against him by putting as many as 14 questions and while answering the questions the respondent reiterated the sequences of the incident, giving graphical details as to how the boy was suffocated to death and as to how the dead body was disposed of. In the statement the respondent further made it clear that the confessional statement given before the judicial Magistrate was true and the same was given voluntarily. In other words, in his 313 statement also the respondent did not retract from the confessions and admissions made by him before the Judicial Magistrate under Section 164, Cr. PC and also before the trial judge, at the stage of framing of charges. 24. Under Section 313(4), Cr. PC the answers given by the accused may be taken into consideration in any enquiry or trial. There is long line of judicial authorities from the Hon'ble Supreme Court as to the scope and contours of Section 313(4) Cr. PC. In the case of State of Maharashtra v. Sukhdeo Singh AIR 1992 SC 2100 , the Apex Court has held that the statement made by an accused under Section 313, Cr. PC are not evidence in stricto sensu. However, the answers given by the accused can certainly be taken into consideration for proving his guilt in the light of other evidence given by the prosecution. PC are not evidence in stricto sensu. However, the answers given by the accused can certainly be taken into consideration for proving his guilt in the light of other evidence given by the prosecution. In this authority the Apex Court also referred to the case of Naraian vs. State of Punjab (1963) 3 SCR 678 wherein it was held, thus: If the accused confesses to the commission of the offence with which he is charged, the court may, relying upon the confession, proceed to convict him 25. The legal position of admission of an accused while giving statement under Section 313 Cr. PC again came up for consideration before the Apex Court in the case of State of U.P vs. Lakhmi, (1998) 4 SCC 336 . In this case the prosecution case was largely based on the testimony of one witness (PW2) and followed by admission of the accused in 313 statement. The learned Sessions Judge convicted the accused. However, the High Court acquitted the convict holding that the evidence of PW2 was not creditworthy and the same was without any corroborative evidence. However, the Hon'ble Supreme Court held that if an accused admits incriminating circumstances, appearing in the evidence against him, there is no warrant for the proposition that those admissions should altogether be ignored merely on a presumption that such admission are advanced as defence strategy. Having regard to the import of Sub-section (4) of Section 313 the Apex Court overruled the views of the High Court and affirmed the conviction. 26. Without referring to other authorities on this point we would at least mention here that in the case of Bishnu Prasad Sinha (supra) the Apex Court had also taken into consideration the admissions of the accused persons, while giving statements under Section 313, Cr. PC, instead of retracting from the judicial confession. 27. In the case before us the judicial confession is backed by admissions made at different stages during the trial. Accordingly we find no hesitation to hold that the conviction of the respondent can be affirmed on the basis of his confessional statement. 28. As noted at the outset of the judgment the respondent was tried for committing offences under Sections 302, 201, 120B, 369 and 347, IPC. However, at the end of the trial the respondent convicted under Sections 302, 201, 363 and 342 of the IPC. 28. As noted at the outset of the judgment the respondent was tried for committing offences under Sections 302, 201, 120B, 369 and 347, IPC. However, at the end of the trial the respondent convicted under Sections 302, 201, 363 and 342 of the IPC. From the evidence on record it is apparent that the deceased was lured to the house of co-accused Momar Angu and kept him in wrongful confinement for considerable period. Hence, there is no infirmity in convicting the respondent under Section 342, IPC. Similarly, evidences are enough to prove that the deceased boy, who was 10 years old, was enticed away and he was kept out of lawful custody of his guardian and this fact amounts to kidnapping a minor under Section 361, IPC. Accordingly the conviction of the respondent under Section 363, IPC is also affirmed. 29. With regard to the conviction under Section 302, IPC no doubt the accused respondent has pleaded that he had no intention to commit the murder of the boy, however, to bring home an offence within the parameters of Section 300, IPC, it is sufficient to prove that the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death of the victim or may cause such bodily injury which would likely to cause death. In the present case the respondent has confessed that he had gagged the mouth of the boy for nearly 10/15 minutes. Hence, the offence would attract clause fourthly of Section 300, IPC. Even otherwise, as per autopsy findings bruises were noticed on the left side of the chest and also on the muscles of the neck and in the opinion of the medical officer (PW8) the boy died due to asphyxia as result of throttling. In the light of this corroborative evidence we do not find any justification to interfere with the conviction under Section 302, IPC. At the same time, the conviction of the respondent under Section 201, IPC also does not require any detail examination, since the dead body was carried by the accused to a long distance after wrapping it in a gunny bag and the same was buried in a secluded area and it was done to cause disappearance of the evidence of murder, Hence, the conviction of the respondent under this penal provision is also affirmed. 30. 30. In the result, the criminal reference is answered in favour of the State. The conviction of the respondent for the offences under Sections 302, 201, 363 and 342, IPC recorded under the impugned judgment and order dated 10.7.2007 and 11.7.2007 are hereby confirmed. The sentences awarded to the respondent also do not warrant any interference by this Court. 31. Registry is directed to return the records of the trial to the court below, with a copy of this judgment immediately.