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2011 DIGILAW 55 (GAU)

Pandu Mura v. State of Assam

2011-01-24

B.D.AGARWAL, MADAN B.LOKUR

body2011
JUDGMENT 1. This appeal is directed against the judgment and order dated 30.3.2004 passed by Learned First Additional Sessions Judge, Tinsukia in Sessions Case No. 54(T)/1999, whereby the Appellant has been convicted under Section 302 of the Indian Penal Code and he has been sentenced to undergo imprisonment for life and also to pay fine of Rs. 5,000, with default stipulation for further rigorous imprisonment for 3(three) months. Being aggrieved with the conviction, the Appellant has preferred this appeal from jail. 2. We have heard Mr. I.A. Talukdar, learned amicus curie for the Appellant and Mr. Z. Kamar, learned Public Prosecutor for the State of Assam. The evidence proffered by the prosecution in the trial court and the impugned judgment have also been perused. 3. The gravamen of the charge is that in the night of 10.3.1997, one of the deceased Moina Satnami requested one 15 years old daughter of the Appellant if she can sleep with him in the shop. Having not tolerated this offer, the girl came and reported it to her father. The Appellant too got infuriated and he went to the grocery shop wherein Moina Satnami was sleeping with two more children on a temporary bamboo platform, carrying a dao and hacked all the three persons one by one. 4. In the morning, the owner of the shop (PW1) heard about the murders of his salesman Moina Satnami and two minor children and lodged the FIR. The FIR was registered as Digboi Police Station Case No. 34 of 1997 under Section 302 of the Indian Penal Code. In the course of investigation, the Investigating Officer arrested the Appellant and he was produced before the Judicial Magistrate on 14.3.1997, who recorded the Appellant's confessional statement on 18.3.1997. On the basis of this confessional statement of the accused, coupled with the statement of his son and other evidence, charge sheet against the Appellant was submitted for the offence of murder. Since the offence was triable by the Court of Sessions, the case was committed for trial vide order dated 31.3.1999. 5. In order to establish the offence of murder, the prosecution examined only 10(ten) witnesses including owner of the shop, son and grandson of the accused, uncle of the deceased, inquest and seizure witnesses, Judicial Magistrate, autopsy Doctor and the I.O. The defence of the accused was of total denial and no evidence in defence was also tendered. 5. In order to establish the offence of murder, the prosecution examined only 10(ten) witnesses including owner of the shop, son and grandson of the accused, uncle of the deceased, inquest and seizure witnesses, Judicial Magistrate, autopsy Doctor and the I.O. The defence of the accused was of total denial and no evidence in defence was also tendered. It may be mentioned here that charge sheet was submitted against two persons but the co-accused Suresh Mura jumped bail and he was declared absconder on 31.12.2001. In this way, trial proceeded against the present Appellant alone and he has been convicted under Section 302, Indian Penal Code. 6. Basically, the prosecution case rests upon judicial confession of the Appellant. According to the Learned Counsel for the Appellant, the said statement is not enough, due to inherent deficiencies, to base the conviction, more so, when the same was retracted by the accused. On the other hand, the learned Public Prosecutor submitted that the retraction of the confessional statement at the fag end of the trial is of no consequence. In this regard, the learned Public Prosecutor also cited the judgment of the hon'ble Supreme Court rendered in the case of Shankaria v. State of Rajasthan AIR 1978 SC 1248 , and another judgment of Gauhati High Court, rendered in the case of Jantu Sarkar v. State of Assam, 2009 (2) GLT 915. Despite the controversy being confined to confessional statement, it is also necessary to look at the remaining evidence to ascertain whether the retracted confession finds any support from other evidence. 7. PW1 is the owner of the shop and he heard about the murders in the morning and after reaching his shop, he found his salesmen lying dead with cut wounds. According to PW1, miscreants had also stolen some money from his shop. However, PW1 did not give any incriminating evidence against the Appellant nor pointed his finger of suspicion against the Appellant. 8. PW2 is a formal witness of seizure of Rs. 2,043 from the possession of co-accused Suresh Mura under Ext-5. Similarly, PWs 3 and 8 are also formal witnesses to the inquest reports. 9. PW5 is another witness from the locality. This witness has deposed that in the morning police came to the place of occurrence with both the accused persons and recovered one dao at the instance of the Appellant. Similarly, PWs 3 and 8 are also formal witnesses to the inquest reports. 9. PW5 is another witness from the locality. This witness has deposed that in the morning police came to the place of occurrence with both the accused persons and recovered one dao at the instance of the Appellant. According to the prosecution, the weapon was seized vide Ext. 14 in presence of four witnesses, including PW5. Strangely, the prosecution did not place the said seizure list (Ext. 14) before PW5 nor his signature was exhibited. At the same time, it is not clear from the testimony of PW5 as to from which place the weapon was exactly seized. As per exhibit-14, the weapon was concealed under the ceiling of the house of the Appellant. However, PW5 has deposed in the cross-examination that police himself had recovered the dao from the house of the accused. In other words, PW5 has not stated that the weapon was seized on being led by the Appellant. 10. PW6 is the grandson of the accused. This witness was the first person to visit the shop in which employees were killed. Having found the employees murdered, he informed the owner (PW1). Thereafter, PW6 again came to the site of the offence, accompanied by PW1, and saw the dead bodies in a pool of blood. Thereafter, police came to the scene and the witnesses came to know from the police personnel that the murders were committed by the co-accused Suresh Mura. PW7 is the son of the informant. Since he was away from home, he has not spoken anything about the incident. 11. The summary of the aforesaid witnesses shows that no witness have spoken about the complicity of the present Appellant in the offence of murder. The only incriminating evidence of recovery of the weapon, on being led by the Appellant, is also under heavy cloud and this circumstance has already been rejected while discussing the evidence of PW5. At the same time, according to PW6, he was told by the police that the murders were committed by co-accused Suresh Mura (absconder). 12. Now we proceed to examine as to how far it was justified for the trial court to record the conviction on the sole basis of confessional statement of the Appellant. As noted earlier, the offence was committed in the night of 10.3.1997 and the Appellant was arrested on 13.3.1997. 12. Now we proceed to examine as to how far it was justified for the trial court to record the conviction on the sole basis of confessional statement of the Appellant. As noted earlier, the offence was committed in the night of 10.3.1997 and the Appellant was arrested on 13.3.1997. According to Public Prosecutor, in the beginning the I.O. was clueless and only after interrogation of the Appellant's son (PW4) the complicity of the Appellant came to surface and he was arrested. On the next day, the Appellant was produced in the court with a prayer for recording his statement and after giving sufficient time for reflection, the statement was recorded on 15.3.1997. Ext. 18 is the said statement. 13. No doubt, the settled position of law is that conviction of an offence can be recorded on the sole basis of judicial confession and even in appropriate cases, on the basis of extra-judicial confession as well. However, before acting upon such confessional statement, the court has to be satisfied that it was made voluntarily and also it contained a true account of the events. 14. In the present case, we will first analyze whether the confessional statement was given by the Appellant on its own volition and without any kind of duress, inducement or threat. If any such element is found, the confessional statement would render it inadmissible in evidence, as the same would be hit by Section 24 of the Indian Evidence Act. 1872. 15. The legal principle regarding the evidentiary value of the judicial confession is no longer res integra. In the case of State of Maharashtra v. Bharat C. Raghan AIR 2002 SC 409 , the Hon'ble Supreme Court has held that corroboration of a confessional statement is not a rule of law, but a rule of prudence. Their Lordships have further observed that whether in a given case a particular corroboration is sufficient, would depend upon the facts and circumstances of that case. 16. Their Lordships have further observed that whether in a given case a particular corroboration is sufficient, would depend upon the facts and circumstances of that case. 16. In the case of State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 , the strength and reliability of judicial and extra-judicial confession has been reiterated, subject to the test of voluntariness of the confession having regard to the negative provisions, incorporated under Section 24 of the Evidence Act, in the following words: The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat. Inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. 17. The case of Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094 ; 1963 Supp. (1) SCR 689, 69, is one of the earliest judgments of the Supreme Court of India, wherein the contours and degree of satisfaction of the court regarding voluntariness of the confessional statement has been succinctly delved upon and their lordships have laid down the following principles: 4. The first question turns upon interpretation of the provisions of Section24 of the Evidence Act and its application to the facts found in this case. The first question turns upon interpretation of the provisions of Section24 of the Evidence Act and its application to the facts found in this case. Section 24 of the Evidence Act lays down that a confession caused by inducement, threat or promise is irrelevant in criminal proceedings under certain circumstances. Under that section a confession would be irrelevant if the following conditions were satisfied: (1) it should appear to the court to have been caused by any inducement, threat or promise; (2) the said threat, inducement or promise must have reference to the charge against the accused person; (3) it shall proceed from a person in authority; and (4) the court shall be of the opinion that the said inducement, threat or promise is sufficient to give the accused person grounds which would appear to him reasonable in supposing that he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The crucial word in the first ingredient is the expression "appears". The appropriate meaning of the word "appears" is "seems". It imports a lesser degree of probability than proof. Section 3 of the Evidence Act says: A fact is said to be 'proved' when after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the test of proof is that there is such a high degree of probability that a prudent man would act on the assumption that the thing is true. But under Section 24 of the Evidence Act such a stringent rule is waived but a lesser degree of assurance is laid down as the criterion. The standard of a prudent man is not completely displaced, but the stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court's opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved. This deviation from the strict standards of proof has been designedly accepted by the Legislature with a view to exclude forced or induced confessions which sometimes are extorted and put in when there is a lack of direct evidence. It is not possible or advisable to lay down an inflexible standard for guidance of courts, for in the ultimate analysis it is the court which is called upon to exclude a confession by holding in the circumstances of a particular case that the confession was not made voluntarily. 18. The judgments relied upon by the learned Public Prosecutor that if an accused retracts from his confession at a belated stage, can still be acted upon have not been discussed since we are proceeding to decide this appeal after ascertaining whether the confession was voluntary and whether the accused gave a correct and true account of events. 19. It is true that when the Appellant was produced before the Judicial Magistrate, he was given sufficient time for reflection and the Magistrate also made an attempt to ascertain whether the accused was giving inculpatory statement on his own volition. However, if an accused is under threat, promise or inducement, etc., no amount of precaution, questioning or counseling by a Magistrate would be of any use. According to the Learned Counsel for the Appellant, the Appellant was taken into custody on 11th March, 1997 itself but he was produced in the court only on 14th March, 1997 and during this period the Appellant must have been given some kind of inducement or threat to compel him to give self indictable statement. However, according to the Public Prosecutor, the Appellant was arrested on 13th March, 1997 and on the very next day, he was produced in the court and thereafter the accused/Appellant was all along in judicial custody and as such there was no question of holding out any threat or giving any inducement, etc. 20. However, according to the Public Prosecutor, the Appellant was arrested on 13th March, 1997 and on the very next day, he was produced in the court and thereafter the accused/Appellant was all along in judicial custody and as such there was no question of holding out any threat or giving any inducement, etc. 20. Truly, the Appellant was formally arrested on 13.3.1997 but the evidence of the witnesses clearly indicates that the Appellant was taken into custody on 11.3.1997 itself. Almost all the material witnesses have given identical version that on the very next day of the incident, police came to the place of occurrence along with the Appellant and the co-accused. For instance, PW5 has deposed, both in the chief examination as well as in the cross-examination, that the Appellant Pandu Mura and co-accused Suresh Mura came to the place of occurrence with police in the morning. The testimony of PW8 also indicates presence of the Appellant along with the police officers on the next day of the incident and thereafter police went in search of the co-accused. Be that as it may, the I.O. (PW9) himself has admitted in the cross-examination that on the following day of the incident, he has visited the place of occurrence and during interrogation, the accused persons confessed before him that they had killed three persons. From all these facts, it is difficult to accept the prosecution version that there was no delay in producing the Appellant in the court. 21. We also find from the record that the Appellant is a 50 years old day labourer by profession and as per his confessional statement, the accused agreed to give indictable statement having felt repentant. It is not understood as to how the accused/appellant felt apologetic within few hours of his arrest on 13.3.1997 and not before that, although the offence was committed in the night of 10.3.1997. In our opinion, had the Appellant been at all feeling guilty, he would have certainly expressed his willingness, to surrender before police or in the court, to his family members or to his neighbours or to leading persons in the locality. Hence, abrupt volunteering to give confessional statement smacks of foul play and, as such, the so called confessional statement cannot be said to have been given voluntarily and on his own volition. 22. Hence, abrupt volunteering to give confessional statement smacks of foul play and, as such, the so called confessional statement cannot be said to have been given voluntarily and on his own volition. 22. Coming to the nature of indictable statement, we find that the Appellant had allegedly killed three shopkeepers because the adult shopkeeper, Moina Satnami, had solicited the company of Appellant's teenaged daughter, ostensibly for illicit purpose. If this is the true story, there was no reason for the Appellant to kill two other minor employees of the shop along with Moina Satnami. Neither the confessional statement is clear in this regard nor the prosecution made any attempt to prove the motive for killing three persons, although the Appellant was allegedly provoked only by the deceased Moina, due to his unacceptable conduct towards his daughter. In other words, the Investigating Officer concluded his investigation without making sincere efforts to ascertain why three persons were murdered by the Appellant without first charging Moina Satnami for soliciting company of his daughter in the night. 23. As noted earlier, the 15 years old daughter of the Appellant was in the centre stage of the entire episode, provided the confessional statement is accepted. Despite that the prosecution did not cite the said daughter of the Appellant as a witness in the case, although her statement was recorded by the I.O. Strangely, the wife of the Appellant was also not cited as a witness in the charge sheet nor examined in the court though she was examined by the I.O. and her statement under Section 161, Cr.PC was recorded. 24. The only other witness to prove the confessional statement is the son of the Appellant. However, this witness too did not speak anything about his father giving confessional statement in the chief examination. Hence, the witness was declared hostile. In his 164, Cr.PC statement, given before a Magistrate, PW4 had stated that his sister Aruna Mura had complained to them that the deceased Moina Satnami had solicited sexual favour since she had failed to pay her dues in the shop and thereafter, his father went to the shop at about midnight and killed all the three employees. The statement of this hostile witness before the Magistrate suffers from factual contradiction. The statement of this hostile witness before the Magistrate suffers from factual contradiction. In the 164 statement of PW4, the Appellant's daughter's name has been mentioned as Aruna Mura, whereas, in the confessional statement of the accused, the name of the girl has been stated to be Budhoni Mura. Due to this factual discrepancy also, the confessional statement cannot be acted upon. Even otherwise, the Appellant's daughter had complained about threat of her modesty at 2 to 4 p.m. and in ordinary course, the Appellant would have reacted immediately. However, the prosecution has not advanced any evidence as to why the Appellant had reacted so lately and that too violently nearly after 12 hours. 25. The prosecution case is further clouded inasmuch as the prosecution has propounded a different story in the evidence than what was projected through confessional statement. As noted earlier, the story put forward in the court through the confessional statement is that the Appellant committed the murder since the deceased Moina Satnami had solicited sexual favour from his daughter, whereas, in the evidence of PWs 1, 2, 8 and 9, (I.O.) another story of stealing money from the shop of the informant was introduced. At the same time, according to the informant (PW1) no articles from his shop were stolen, except money. The informant did not give any idea as to how much money was stolen and the I.O. also seized only a sum of Rs. 195 from the house of the Appellant vide Ext. 13. But, the prosecution failed to prove the said seizure. Hence, this circumstantial evidence also could not be established. 26. For the reasons, alluded hereinabove, we hold that the conviction of the Appellant under Section 302 of the Indian Penal Code is unsustainable on facts as well as in law. 27. In the result the appeal stands allowed. The impugned judgment is hereby set aside. The Appellant is set at liberty forthwith Since the Appellant is in judicial custody, the Registry is directed to issue release order to the concerned jail authority immediately. 28. We order that the learned amicus curiae shall be entitled to remuneration of Rs. 5,000 (Rupees five thousand only) for assisting the court. 29. Send down the LCRs to the trial court, with a copy of this judgment. Appeal allowed.