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2010 DIGILAW 239 (GAU)

Ajit Boraik v. State of Assam

2010-04-01

BIPLAB KUMAR SHARMA, C.R.SARMA

body2010
JUDGMENT C.R. Sarma, J. 1. The judgment and order dated 31.05.2004 passed by the learned Addl. Sessions Judge No. 2, Sivasagar, in Sessions Case No. 37 (S-C) 02 (New), has been challenged by this appeal filed by the Appellant from the jail. By the impugned judgment and order aforesaid, the accused-Appellant was convicted by the learned trial Judge for the offence punishable under Section 302 IPC and, accordingly, he was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for another period of one year. 2. We have hoard Mr. R.K. Adhikary, learned Amicus Curie appearing on behalf of the Appellant and Mr. Z. Kamar, learned Public Prosecutor appearing for the State of Assam. 3. The prosecution case, in brief, as unfolded during the trial, is as follows: On 06.10.2001, at about 9.30 a.m., Late Phagu Garh (hereinafter called 'the deceased) and the Appellant were sitting together near the Government road. The Appellant, with a dao in his hand, suddenly beheaded the deceased and appeared before the In-charge of Tengapukhuri Police Out Post along with the severed head of the deceased and the dao. Accordingly, the In-charge of the Tengapukhuri Police Out Post (PW 12) made a G.D. Entry being G.D.E. No. 80 dated 06.10.2001 and informed the O/C Mathurapur R.S. through VHP about the occurrence. On the same day i.e. 06.10.2001, Sri Bihari Garh (PW 2) lodged an FIR with the O/C, Mathurapur Police Station with regard to the said occurrence. On receipt of the FIR, police registered a case and launched investigation into the matter. During the investigation, the Investigating Officer visited the place of occurrence, collected the headless dead-body of the deceased, which was identified by the informant to be the dead-body of the deceased, from the place of occurrence. The IO also prepared the Inquest Report and sketch map and recorded the statement of the witnesses and forwarded the accused to the Court for recording his confessional statement. Accordingly, the learned Magistrate 1st Class, Sivasagar, recorded the confessional statement of the accused person. Thereafter, the dead-body was sent for autopsy. At the close of the investigation, the police submitted the charge-sheet under Section 302 IPC and forwarded the accused to the Court to stand trial. 4. Accordingly, the learned Magistrate 1st Class, Sivasagar, recorded the confessional statement of the accused person. Thereafter, the dead-body was sent for autopsy. At the close of the investigation, the police submitted the charge-sheet under Section 302 IPC and forwarded the accused to the Court to stand trial. 4. The offence, under Section 302 IPC, being exclusively triable by the Court of Sessions, the learned SDJM, Sivasagar, committed the case to the Court of sessions. The learned Addl. Sessions Judge No. 2, Sivasagar, framed the charge against the accused person under Section 302 IPC, to which he pleaded not guilty and claimed to be tried. 5. In order to bring home the guilt to the accused, the prosecution examined as many as 12 witnesses, including the Medical Officer, who conducted the post-mortem examination, the learned Magistrate, who recorded the confessional statement of the accused person and the Investigating Officer. At the close of the evidence for the prosecution, the accused person was examined under Section 313 Code of Criminal Procedure. The accused person denied all the allegations brought against him. Pleading innocence, the accused person, in his statement under Section 313 Code of Criminal Procedure stated that he did not severe the head of the deceased and that finding the head lying on the road, he had carried the same to the police station. Regarding the confessional statement, the accused person stated that he could not say what he had said before the learned Magistrate as well as to the police. The accused person further stated that he could not remember anything about his confessional statement made before the learned Magistrate. The accused person declined to adduce defence evidence. 6. Considering the evidence on record, the learned trial Judge convicted and sentenced the accused-Appellant as aforesaid. Hence, the Appellant carried the appeal to this Court. 7. Mr. R.K. Adhikary, learned Amicus Curie appearing for the Appellant has strenuously argued that there is no material on record to show that the accused had intentionally kill the deceased and that there is no sufficient evidence to convict the Appellant for committing the murder of the deceased. Hence, the Appellant carried the appeal to this Court. 7. Mr. R.K. Adhikary, learned Amicus Curie appearing for the Appellant has strenuously argued that there is no material on record to show that the accused had intentionally kill the deceased and that there is no sufficient evidence to convict the Appellant for committing the murder of the deceased. The learned Counsel further submitted that, the accused person, the deceased and the witnesses were doing some bamboo works, sitting together, but the accused, being provoked by the deceased had inflicted a single dao blow in the hit of a moment and as such the conviction of the accused person under Section 302 IPC is not sustainable. 8. Refuting the above argument, Mr. Z. Kamar, learned Public Prosecutor appearing for the State of Assam, drawing our attention to the evidence on record, more particularly, the evidence of the eye-witnesses i.e. P.W. Nos. 3 and 5 as well as the confessional statement, which was voluntarily made by the accused person, submitted that there was sufficient convincing evidence to believe that the accused person intentionally committed the murder of the deceased without any provocation. According to the learned Public Prosecutor, the conviction and sentence recorded by the learned trial Judge does not warrant any interference. 9. In order to appreciate the arguments, advanced by the learned Counsel appearing for both the parties, and to examine the correctness of the impugned judgment and order, we feel it appropriate to briefly recapitulate the evidence on record as follows. 10. Sri Anuj Kr. Sharma, who deposed as PW 1, was the scribe of the FIR. Exhibiting the FIR as Exbt.-1 and his signature thereon as Exbt.-1 (1), he stated that on being called by the Officer In-charge of Tengapukhuri Police Out Post, he went to the Police Station and found a person sitting therein and that at the instance of said person i.e. the elder brother of the deceased, who was sitting in the police station, wrote the said FIR/Ejahar. This witness stated nothing against the accused person. 11. Sri Bihari Gorh (PW 2), who was the brother of the deceased, was the informant in this case. This witness stated nothing against the accused person. 11. Sri Bihari Gorh (PW 2), who was the brother of the deceased, was the informant in this case. Exhibiting the FIR, lodged by him as Exbt.-1 and his signature thereon as Exbt.-1(2), he stated hat the deceased was beheaded by the accused-Appellant and that hearing noise, he rushed to the 'tiniali' (a tri-junction road) and found the beheaded body of the deceased lying thereon. According to this witness, the severed head was not found along with the trunk portion. He further stated that he, along with others, went to the police station and informed the police about the said occurrence and lodged the FIR. In cross-examination, this witness stated that he did not see the occurrence himself. However, he stated that he was informed by Sri Mangal Lohar (PW 3) and others that the head of the deceased was severed by the accused by giving a dao blow. 12. Sri Mangal Sai Lohar, who deposed as PW 3, was one of the eye-witnesses. According to this witness, while he along with Gakul Mazuwar, Nur Das Panika i.e. Nahar Das Panika (PW 5) were talking on the road, the deceased and the accused person, who were sitting nearby, were making some bamboo sticks. He stated that the accused person with the dao in his hand, gave a blow on the deceased from behind and left the place with the severed head. This witness further stated that he: informed the people and the members of the family of the deceased about the occurrence. This witness was duly cross-examined on behalf of the defence, but, nothing could be elicited to render his evidence disbelievable. He denied the suggestion that under the influence c if liquor the deceased had insulted the accused person calling him 'chapinia' (a person living in the house of his father-in-law, as Defendant), for which, out of anger, the accused had thrown the dao, which hit the deceased's neck. In view of the specific evidence given by PW 3 regarding giving of a dao blow on the neck of the deceased, the said suggestion does not appear to have any force. 13. In view of the specific evidence given by PW 3 regarding giving of a dao blow on the neck of the deceased, the said suggestion does not appear to have any force. 13. In tune with the evidence of PW 3, Sri Nahar Das Panika, who was also one of the eyewitnesses, deposing as PW 5, stated that at the time of occurrence, while he was talking with PW 3 and Gokul Mazuwar on the road, the deceased, who was sitting on the road, was given a dao blow by the accused. This witness further stated that out of fear, he had ran away from the place of occurrence and returned there after the arrival of the police and he saw the headless dead-body of the deceased. In his cross-examination, this witness further stated that on the date of occurrence, the accused had a quarrel with the deceased. He denied the suggestion that he had told the police that on that day he had returned from his duty and that he did not tell the police that he had gone to attend his duties. Whether the said eye witness had gone to attend his duty or returned from his duty, his evidence regarding witnessing the occurrence remained unshaken. No contradiction could be brought out to discredit his evidence. Carefully perusing the evidence of PW Nos. 3 and 5, sufficient corroboration is found in their evidence regarding involvement of the accused person in the killing of the deceased. 14. Sri Tiwari Gorh, deposing as PW 4, stated that he arrived in the place of occurrence after the incident and could know that the accused had cut the deceased. According to this witness, he was informed by P W 3 and he saw the headless dead-body lying in the place of occurrence. In his cross-examination, this witness further stated that he could recognize the dead-body to be the dead-body of the deceased. 15. Sri Manik Chandra Duwara, deposing as PW 6, stated that, hearing about carrying of a person's severed head to the police station by a person, he along with others went to the Tengapukhuri Police Out Post and saw a person along with a bundle wrapped with a gamosa (towel) and a dao. According to this witness, the police seized the dao and the said bundle and took his signature in the seizure list. According to this witness, the police seized the dao and the said bundle and took his signature in the seizure list. He stated that blood was oozing out from the said bundle. In his cross-examination, he stated that he did not know what did the police do with the said severed head. From the evidence of this witness, it transpires that the severed head as well as the dao were taken to the police out post. 16. Sri Manbat Panika, deposing as PW 7, stated that he saw the headless dead-body of the deceased at a little distance from his house and that he came to know that the accused had beheaded the deceased. 17. Sri Ananta Tanti, deposing as PW 8, also stated that he saw the headless dead-body of the deceased lying on the road near his house and that others had told him that the accused had beheaded the deceased. 18. Sri Ghatu Mazowar, deposing as PW 9, stated that he saw one headless dead-body on the road and that the people, who gathered there, informed him that the same was the dead-body of the deceased. 19. Dr. P.K. Bordoloi (PW 10), who conducted the post-mortem examination in respect of the dead-body of the deceased, stated that he found one cut injury causing detachment of the head from the body. PW 10 had noticed the following injuries in respect of the said dead-body and opined that the cause of death was 'shock and haemorrhage' due to injuries: Cranium & Spinal Channel: Scalp congested, skull healthy, cervical vertebra Nos. 3 and 4 fractured. Membrane congested--Brain congested, spinal chord severed. Thorax: Ribs healthy, walls, pleura, both lungs heart & vessels were congested. Abdomen: Walls, peritoneum, mouth, esophagus congested, stomach contained food particles, intestine contained food particles and fecal matter, liver, spleen, kidneys and bladder congested. Whole head was detached from the body, wound was ante mortem and homicidal in nature. Cause of death, in my opinion is shock and haemorrhage due to the injuries. PW 10 has exhibited the post-mortem report as Exbt.-4 and his signature as Exbt.-4(1). In his cross-examination, P W 10 further stated that the trunk and the head being connected together, the relatives and the police identified the dead-body. 20. Cause of death, in my opinion is shock and haemorrhage due to the injuries. PW 10 has exhibited the post-mortem report as Exbt.-4 and his signature as Exbt.-4(1). In his cross-examination, P W 10 further stated that the trunk and the head being connected together, the relatives and the police identified the dead-body. 20. From the evidence of the said Medical Officer, it is clear that the head of the dead-body, which was identified to be the dead-body of the deceased, was severed. Both the eyewitnesses i.e. PW Nos. 3 and 5, in unequivocal terms stated that the head of the deceased was' severed by the accused by giving dao blow and that the accused had left the place of occurrence with the dao as well as the head. All the other witnesses i.e. PW Nos. 4, 6, 7, 8 and 9, though did not see the occurrence themselves, stated that they saw the headless body of the deceased lying on the road and that they were informed by others, including the said eyewitnesses, that the head of the deceased was severed by the accused by giving dao blow. The medical evidence also supports the prosecution version regarding severing of the head from the body. 21. The Investigating Officer, who was examined as PW 12, in his evidence, stated that the accused person appeared before him with a severed head and a dao in his hand and deposited the said head and dao, which were seized by him in presence of the witnesses. The 10 was duly cross-examined on behalf of the defence. No contradiction in respect of the witnesses, more particularly, in respect of the eyewitnesses could be established to discredit the evidence of the said witnesses. This witness denied the suggestion that the accused did not surrender in the police station along with the severed head. 22. Sri Mazid Ali, the learned Sub-Divisional Judicial Magistrate, Sonari, who recorded the confessional statement of the accused, was examined as PW 11. The learned Magistrate, in his evidence, stated that the accused was produced before him on 07.10.2001 in connection with G.R. Case No. 396/2001 (corresponding to this appeal) and that, on being asked and duly warned and cautioned, the accused expressed his willingness to make the confessional statement and that he granted the accused time for reflection till 08.10.2001 and kept him in the jail custody. According to the learned Magistrate, on 08.10.2001, the accused was again produced before him from the jail custody and the accused was again cautioned. On being so cautioned, after explaining all the statutory consequences and putting certain searching questions to the accused to ascertain the voluntaries of his confession, the learned Magistrate kept the accused person in his Chamber in the custody of his peon and, thereafter, recorded the statement. 23. From the evidence of the learned Magistrate as well as the confessional statement of the accused-Appellant, it transpires that the learned Magistrate recorded the confessional statement of the accused after observing the due procedure and ascertaining the voluntariness of making the confessional statement. Therefore, from the evidence of PW 11 as well as the confessional statement, it is found that the accused person had confessed that he had severed the head of the deceased and surrendered at the Tengapukhuri Police out Post along with the severed head and the offending dao. In his confessional statement, the accused-Appellant stated that as the deceased had implicated him in connection with another police case with regard to elopement of his brother with a girl, out of anger, he had severed the head of the deceased with a dao. 24. Though the accused-Appellant made the confessional statement before the learned Magistrate, during his examination under Section 313 Code of Criminal Procedure, he denied to have made any confessional statement and, thus, retracted the same. Though he retracted the confessional statement, there is no impediment in law in convicting an accused solely on the basis of his own confession, provided the same is believable to be true and voluntary. 25. The Hon'ble Apex Court, in the case of Khear Singh v. The State Delhi Administration, reported in AIR 1988 SC 1883 , observed that confessional statement though retracted, can be the basis for conviction. In the case of State of Tamil Nadu v. Kutty @ Lakshmi Narasinhan, reported in 2001 Cri.L.J. 4168 the Hon'ble Apex Court observed that it cannot be a rule that once a confession is retracted, the Court should presume the same to be tainted. As a matter of practical knowledge, non-retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor. It would be injudicious to jettison a judicial confession on the mere promise that its maker has retracted from it. As a matter of practical knowledge, non-retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor. It would be injudicious to jettison a judicial confession on the mere promise that its maker has retracted from it. The Hon'ble Apex Court in the case of Pyare Lal v. State of Rajasthan, reported in 1963 Supp 1 SCR 689, observed that a retracted confession may from the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. It is rule of prudence that in order to pass conviction on the basis of confession, some amount of corroboration should be sought. In order to rely on the confessional statement, there must be definite and satisfactory conclusion that the confession was voluntary and true. What the Court is required to see is whether all necessary precautions as prescribed by Section 164 Code of Criminal Procedure, so as to remove all sorts of threat, fear, inducement or other pressure, promise etc. were taken. Applying the required tests, if it is found that the statement was voluntarily made, and found to be true, the same can be relied upon even if the statement is retracted at the later stage. In the case of Devendra Prasad Tiwary v. State of U.P. reported in AIR 1978 SC 1544 , it was held that there should be record to show that the accused was told that he would not be remanded to police lock up even if he did not confess the guilt. In the case of State of Assam v. Jitu Pegu, reported in 2004 (3) GLT 383, a Division Bench of this Court observed that while cautioning the accused before recording the confessional statement, the Judicial Magistrate should inform the accused that he is independent from police and that whether he made the statements or not, he will not be remanded to the police custody. 26. Carefully perusing the confessional statement recorded by the learned Magistrate, it is found that the learned Magistrate put searching questions to ascertain the voluntariness and truthfulness of the accused person and the learned Magistrate informed the accused-Appellant that he was not a police officer, but a Magistrate and that even if he (accused person) did not make the confessional statement, he would not be handed over to police. From the answers given by the said accused-person, it appears that the accused person made the said confessional statement knowing fully well that the officer recording the confessional statement was not a police officer and that in the event of his failure to make confessional statement, he would not be remanded to the police custody. 27. The learned Magistrate was duly cross-examined on behalf of the defence. No irregularity in respect of recording the confessional statement of the accused-Appellant, more particularly, with regard to the truthfulness and voluntariness of the accused-Appellant, has been elicited. In the light of the statutory provision prescribed by Section 164 Code of Criminal Procedure and the principles of law laid down by the Hon'ble Apex Court, in the above referred cases, it is found that the learned Magistrate in the present case in hand recorded the confessional statement after being satisfied that the same was true and voluntary. 28. In view of the above, though the accused person, at the belated stage of recording the statement under Section 313 Code of Criminal Procedure, retracted the confession, the said retraction cannot negate the evidentiary value of the confessional statement aforesaid. That apart, the unimpeachable testimonies of the eye-witnesses lend sufficient corroboration in favour of the said confessional statement. Further, the circumstantial evidence that the headless dead-body was lying on the road i.e. in the place of occurrence, that the accused-Appellant appeared before the police station along wit the severed head of the deceased and the offending dao and the medical evidence that the head of the deceased was severed by inflicting cut injury, are sufficient circumstantial evidence lending corroboration in favour of the prosecution version. 29. In view of the evidence on record, more particularly, the evidence of the eyewitnesses, the confessional statement recorded by the Judicial Magistrate and the circumstantial evidence aforesaid, cumulatively lead to the irresistible conclusion that none other than the accused-Appellant had caused the death of the deceased by inflicting dao blow and thereby severing the head. Though the learned defence counsel contended that the said dao blow was inflicted by the accused due to sudden grave and provocation, there is nothing on record prompting the ace used person to be provoked in any manner. Therefore, we fail to find any substance in the contention of the learned defence counsel. 30. Though the learned defence counsel contended that the said dao blow was inflicted by the accused due to sudden grave and provocation, there is nothing on record prompting the ace used person to be provoked in any manner. Therefore, we fail to find any substance in the contention of the learned defence counsel. 30. Considering the entire evidence on record, as discussed above, we find sufficient cogent and reliable evidence to hold that the present accused-Appellant is guilty of the offence under Section302 IPC. In our considered opinion, the learned trial Judge committed no illegality by convicting and sentencing the accused-Appellant as aforesaid. Therefore, we find no merit in this appeal requiring interference with the impugned judgment and order of conviction and sentence. Accordingly, we affirm the impugned conviction and sentence. 31. In the result, the appeal stands dismissed. Let the case records be sent down to the learned trial Court. 32. Before we apart with this judgment, we record with appreciation, the assistance rendered by Mr. R.K. Adhikary, learned Amicus Curie and direct payment of two days' fees to him at the rate of Rs. 2,500/- (Rupees two thousand five hundred) only per day. Appeal dismissed.