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2010 DIGILAW 474 (GAU)

Etuwa Bhumiz v. State of Assam

2010-07-13

C.R.SARMA, RANJAN GOGOI

body2010
JUDGMENT Ranjan Gogoi, J. 1. This appeal from jail is directed against the judgment and order dated 29.11.2003 passed by the learned Addl. Sessions Judge No. 2, Sivasagar in Sessions Case No. 36(SC)/2001. By the aforesaid judgment and order, the accused/Appellant has been convicted under Section 302, IPC, and sentenced to undergo R.I. for life and to pay a fine of Rs.1,000, in default, to suffer R.I. for a period of one year. 2. The short case of the prosecution is that at about 3.30 p.m. of 19.11.1992 one Sri D. Hati Baruah, Assistant Manager of Bimalapur Tea Estate lodged a FIR in the Charaipang Police Out Post stating that it was reported to him by the line Chowkidar that the accused/Appellant had killed his wife in the morning and, thereafter, he had surrendered at the police station. On receipt of the aforesaid FIR the in-charge of the Police Out Post took up the investigation of the case and, at the same time, forwarded the FIR to the Officer-in-Charge of Borhat Police Station for registering a case. Accordingly, Borhat P.S. Case No. 113/92 under Section 302, IPC, was registered. 3. PW11, Jyoti Prasad Phukan, S.I. of Police investigated the case. On the very next date, the accused/Appellant was sent to the court of the learned SDJM, Charaideo for recording of his confession as desired by the accused. Accordingly, the confessional statement of the accused was recorded by the learned SDJM, Charaideo at about 3 p.m. of 21.11.1992. The same has been proved by the prosecution as Exhibit-9 in the case. Furthermore, in the course of the investigation, inquest was held on the dead body which was also sent for post-mortem examination. The alleged weapon of assault was seized vide seizure list (Exhibit-4) and a sketch map of the place of occurrence (Exhibit-3) was also prepared. The statements of a large number of persons acquainted with the offence were recorded by the Investigating Officer. Thereafter, at the conclusion of the investigation charge sheet under Section 302, IPC, was submitted against the accused, Appellant. The offence alleged being exclusively triable by the Court of Sessions, the learned SDJM by order dated 8.10.1996 committed the case for trial to the Court of Sessions at Sivasagar. 4. In the trial court charge under Section 302, IPC, was framed against the accused/Appellant to which he pleaded not guilty. The offence alleged being exclusively triable by the Court of Sessions, the learned SDJM by order dated 8.10.1996 committed the case for trial to the Court of Sessions at Sivasagar. 4. In the trial court charge under Section 302, IPC, was framed against the accused/Appellant to which he pleaded not guilty. In the course of trial the prosecution examined twelve witnesses. The defence did not lead any evidence. However, the statement of the accused/Appellant was recorded under Section 313 Code of Criminal Procedure. Thereafter, at the conclusion of the trial, by the impugned judgment and order dated 29.11.2003 the accused/Appellant has been convicted and sentenced as aforesaid giving rise to the present appeal. 5. It will be necessary, at this stage, to briefly notice the evidence tendered by the witnesses examined by the prosecution in the present case. P Ws 1, 2 and 4 who are the son and two younger brothers of the accused did not support the prosecution case and were declared hostile. They were confronted with their statements made to the Investigating Officer wherein the witnesses had clearly implicated the accused/Appellant. The aforesaid statements made by the three witnesses, as recorded by the Investigating Officer, were also proved through the Investigating Officer, i.e., PW11 (except the statement made by PW1). While PW3 is the doctor who performed the post-mortem examination; PW5 and 6 are the co-villagers who came to the place of occurrence and found the headless body of the deceased lying on the verandah of the house of the accused. PW7, Ruchi Tanti is the garden chowkidar who was asked by the Manager of the Tea Estate to carry out a check of the incident. Accordingly, PW7 went to the house of the accused and found the headless body of the deceased lying in the verandah of the house. Thereafter, he reported the matter to the garden Manager who lodged the FIR. 6. PW8, Niren Majhi is a neighbour of the accused who also turned hostile whereas PW9 and 10 are two school teachers who went to the police station on hearing of the incident and presence of the accused in the police station. Both the witnesses, i.e., P Ws 9 and 10 deposed that the accused/Appellant had confessed his involvement in the crime alleged against him. 7. Both the witnesses, i.e., P Ws 9 and 10 deposed that the accused/Appellant had confessed his involvement in the crime alleged against him. 7. From the evidence of PW11, the Investigating Officer of the case, it transpires that immediately after the incident in the morning of 19.11.1992 the accused/Appellant had appeared in the police station along with the severed head of the deceased and a 'dao' and had surrendered himself admitting the crime. PW12, Pradip Kr. Sakia is the Bench Assistant of the court of the learned SDJM, Charaideo who has proved the confessional statement made by the accused/Appellant and the signature of the learned SDJM appearing thereon. From the evidence of PW12, it transpires that the accused/Appellant was produced before the SDJM on 20.11.1992, whereafter, he was sent back to custody for reflection. On the next date at about 11 a.m. the accused/Appellant was once again produced before the SDJM and the confessional statement was recorded at about 3 p.m. on the same day. During this period the accused/Appellant was with the Bench Assistant of the court of the learned SDJM. 8. From the above narration of the evidence tendered by the prosecution witnesses it is clear to us that P Ws 1, 2 and 4, who the prosecution claims to be the eyewitnesses of the incident, did not support the prosecution version in court. The statements made by the aforesaid three witnesses to the Investigating Officer does not constitute legal evidence to enable the court to come to a conclusion that the prosecution has succeeded in proving that there was any eyewitness to the occurrence. In such circumstances, the court would naturally be called upon to ascertain whether any circumstance(s) which incriminates the accused/Appellant had been proved by the prosecution and whether all such circumstance(s) taken together constitute a complete chain to unerringly point to only one direction, i.e., that it is the accused/Appellant and nobody else who had committed the offence. Only in such a situation the conclusion reached by the learned trial court can be maintained. 9. Though P Ws 1, 2 and 4 cannot be relied upon as eyewitnesses to the occurrence, from the evidence of PW1 it clearly transpires that the accused and the deceased used to live together in the same house as husband and wife. Only in such a situation the conclusion reached by the learned trial court can be maintained. 9. Though P Ws 1, 2 and 4 cannot be relied upon as eyewitnesses to the occurrence, from the evidence of PW1 it clearly transpires that the accused and the deceased used to live together in the same house as husband and wife. From the evidence of PW2 it is established that when this witness went to the house of the accused he had found the dead body of the deceased without the head lying in front of the house. Similar is the evidence of PW4. From the evidence of PW11, the Investigating Officer, it transpires that soon after the incident the accused had appeared in the police station along with the severed head of the deceased and a 'dao' That the accused had appeared in the police station also finds support from the evidence of PW9 and 10. From the evidence of PW12 and reading the confessional statement exhibited as Exhibit-9, we find that the accused/Appellant had admitted to killing his wife with the 'dao' by severing her head as he was enraged over the fact that she had not been attending to him properly. Our perusal of the form of the confessional statement (Exhibit-9) indicates that all mandatory precautions required to be taken by the concerned judicial officer before recording a confessional statement had been taken in the present case. The only lacuna in the confessional statement which we have found is the absence of any statement by the learned Magistrate to the accused to the effect that in the event the accused does not make a confessional statement he will not be sent to police custody. The question, therefore, that arises is whether on the state of evidence, as noticed above, the conviction of the accused/Appellant as ordered by the learned trial court should be sustained by us. 10. There can be no manner of doubt that the recovery of the headless body of the deceased in the house of the accused where the accused and the deceased used to live together is a highly incriminating circumstance against the accused. The appearance of the accused in the police station with the severed head and a 'dao', which facts arc admissible under Section 8 of the Evidence Act, would be an equally incriminating circumstance. The appearance of the accused in the police station with the severed head and a 'dao', which facts arc admissible under Section 8 of the Evidence Act, would be an equally incriminating circumstance. Though in certain judicial pronouncements it has been strongly emphasized that before recording a confession the learned Magistrate must suitably inform the accused that he is not bound to make a confession and that if he does not make such a statement he will not be sent to police custody, the absence of the same in the present case, as noticed by us, will not be fatal. The rigour of the particular precaution noticed by us, in our considered view, would be applicable in a case where the confession is the sole basis of the conviction and no corroborative evidence is available. In the present case, however, the same is not the case in view of the other highly incriminating circumstances noticed by us, particularly, the fact that the accused had appeared in the police station immediately after the incident with the severed head and a 'dao'. 11. All the above facts, in our considered view, form a complete chain of events which unerringly point to only one direction, i.e., that it is nobody else but the accused who could have committed the crime. 12. Having reached the aforesaid conclusion, we do not find any infirmity in the judgment and order dated 29.11.2003 passed by the learned Addl. Sessions Judge No. 2, Sivasagar in Sessions Case No. 36(SC)/2001. We, therefore, dismiss the appeal and affirm the conviction recorded by the learned trial court as well as the sentence imposed. 13. We acknowledge the assistance rendered by Mr. A. Ozah, learned amicus curie in the case and direct the State to pay to Mr. Ozah two days hearing fee at the rate of Rs.2,500 per day. Appeal dismissed.