C.R. Sarma, J.— This appeal is directed against the judgment and order, dated 10.07.2007, passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 45(S-C) 06. By the impugned judgment and order, the learned Sessions' Judge, convicted the appellant for the offence under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 1,000/- in default suffer rigorous imprisonment for another period of 6 months, for his conviction under Section 302 IPC. Aggrieved by the said conviction and sentence, the convicted person, as appellant has come up with this appeal. 2. We have heard Ms. D. Buragohain, learned Amicus Curiae appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor appearing for the State respondent. 3. The prosecution case, in brief, is that that appellant and his wife Smti. Sushila Ghatowar lived together in their house and on 18.07.2005, at about 1-00 P.M., the appellant assaulted her with a lathi (bamboo stick) and caused her dead. The dead body of Smti. Sushila Ghatowar (herein after called the 'deceased') was found lying in their courtyard. Immediately, after committing the said crime, the appellant visited the house of Sri Bablu Ghatowar and informed him that he had killed the deceased. Sri Bablu Ghato war (PW-2) as informant lodged an FIR (Ext. 3) with the police. Accordingly police regis tered a case and launched investigation into the matter. During the course of investigation, police visited the place of occurrence i.e. the house of the appellant, where they found that the dead body of the deceased, prepared the inquest report (Ext. 2), and a sketch map of the place of occurrence, forwarded the dead body for post mortem examination, arrested the accused person, seized a bamboo lathi from him. Concluding the investigation, police submitted charge-sheet against the appellant under Section 302 IPC. The learned Sub-Divisional Judicial Magistrate (Sadar) commi tted the case for trial and accordingly the learned Sessions Judge framed charge under Section 302 IPC. The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 4. In order to prove their case, prosecution examined as may as 9 witnesses, including the medical officer (P W-6), who performed the autopsy and the investigating police officers (PW-8 and 9).
The charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 4. In order to prove their case, prosecution examined as may as 9 witnesses, including the medical officer (P W-6), who performed the autopsy and the investigating police officers (PW-8 and 9). At the close of the evidence for the prosecution, the accused person was examined under Section 313 Cr.P.C. He denied the allegations, brought against him and pleaded that he was falsely implicated with the alleged offence. He also denied to have made any extra-judicial confession before the witnesses. The accused person declined to adduce defence evidence. Considering the evidence on record the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him as indicated above. 5. Ms. D. Buragohain, learned Amicus Curiae, has submitted that there is no direct evidence against the appellant and that the prosecution failed to adduce any substantive evidence. It is also submitted that the appellant, having denied to have made any confessional statement, there is no evidence in support the conviction. In view of the above, the learned Amicus Curiae submitted that the prosecution failed to prove the case against the appellant, beyond all reasonable doubt, and as such he is entitled to get acquittal. 6. Mr. D. Das, learned Addl. Public Prosecutor refuting the said argument, advanced by the learned Amicus Curiae, has submitted that the circumstantial evidence, that death of his wife. In view of the above, it is submitted that the learned Sessions Judge rightly convicted the appellant under Section 307 IPC and as such the impugned conviction and sentence do not warrant any interference. 7. Having heard the learned counsel, appearing for both the parties and considering the evidence, on record, we find that there is no eye witness to the occurrence. The pros ecution case is based on the circumstantial evidence and the extra-judicial confession, alleged to be made by the appellant. 8. Though extra-judicial confession is a weak type of evidence, the same can be accepted if found to be reliable. In the case of State of 'U.P. Vs. M.K. Anthony reported in AIR 1985 SC 48 , the Supreme Court observed that if the extra-judicial confession is found to be reliable, trust-worthy and beyond reproach the same can be relied upon and a conviction can be founded thereon.
In the case of State of 'U.P. Vs. M.K. Anthony reported in AIR 1985 SC 48 , the Supreme Court observed that if the extra-judicial confession is found to be reliable, trust-worthy and beyond reproach the same can be relied upon and a conviction can be founded thereon. However, as observed by the Supreme Court, before accepting the evidence of extra-judicial confession, the evidence of the witnesses is to be subjected to a rigorous test on the touchstone of credibility and if it passes the test, the extra- judicial confession can be accepted and can be the basis of conviction. The evidentiary value of extra-judicial confession will depend on the credibility of the person before whom suvh confession is made. 9. In order to examine the credibility of the witnesses regarding extra-judicial confession, in the case at hand, we feel it appropriate to scrutinize the evidence of the witnesses. 10. Mr. Jangli Bhomiz, who deposed as P W-1 was a Nayak of the Village Defence Party and both the appellant and the deceased were known to him. He stated that the appellant, after committing the crime was moving in the locality, with a lathi in his hand and that the dead body of the deceased was lying in their courtyard. This witness further stated that, on being asked by him, the mother of the appellant had told him that the appellant had killed his wife. Accordingly this witness informed the police, orally and on being so informed, police had visited the place occurrence. He further stated that the appell ant appeared, in the police station and before the police confessed that he had killed his wife. According to this witness police had seized a lathi vide ext.1, in his presence. He has exhibited the said seizure list as ext. 1 and his signatures thereon as ext. 1(2). From the evidence of this witness it is found that the appellant had made confessional statement before the police, in the police station, in presence of this witness, after surrendering to police custody. Therefore, the said confession, as indicated by P W-1, is hit by section 26 of the Evidence Act. 11. Sri Bablu Ghatowar, who is the brother of the appellant, deposing as PW-2 stated that the appellant visited his house with a lathi, in his hand and informed him that he had killed his wife.
Therefore, the said confession, as indicated by P W-1, is hit by section 26 of the Evidence Act. 11. Sri Bablu Ghatowar, who is the brother of the appellant, deposing as PW-2 stated that the appellant visited his house with a lathi, in his hand and informed him that he had killed his wife. Accordingly, this witness informed the Gaon Burha. He further stated that the VDP Secretary and police visited the house of the appellant in his presence. He was an witness to the inquest, conducted by the police. He exhibited the inquest report as ext.2 and his signature thereon as ext. 2(1). He further stated that, on being written by the Gaon Burha (PW-4), he had signed and filed the FIR (ext.3). Though this witness was duly cross-examined, on behalf of the defence, no material contradiction could be elicited from his cross-examination. He denied the suggestion that he had falsely deposed against the appellant due to previous grudge.) Therefore, we find nothing to hold that PW-2, who was the brother of the appellant had any ill feeling against the appellant. He clearly stated that the appellant had confessed the guilt before him, in his house. From the evidence of this witness, it is found that the confession was made, before the arrival of the police. In the FIR, lodged by this witness, on the date of occurrence itself, it was also clearly mentioned that the appellant had confessed that he had killed his wife. Therefore, we find sufficient corroboration in the evidence of this witness with regard to the extra-judicial confession. There being nothing against the credibility of this witness, we find no reason not to accept his evidence regarding the extra-judicial confession. 12. Sri Kanai Lal Kayasthqa (PW-4), was the concerned Gaon Burha. He stated that the informant (i.e. PW-2) had informed him that the appellant had caused the death of his wife. This witness further stated that the appellant, who visited his house disclosed that he had killed his wife and therefore, requested him to assist him in surrendering before the police. He further stated that he, along with the VDP Secretary and the appellant, visited the house of the latter where they found the police. He was also an witness to the inquest report, prepared by the police. He has exhibited the inquest report as ext. No. 2.
He further stated that he, along with the VDP Secretary and the appellant, visited the house of the latter where they found the police. He was also an witness to the inquest report, prepared by the police. He has exhibited the inquest report as ext. No. 2. Exhibiting his statement recorded under Section 164 Cr.P.C, as ext. No. 6, this witness stated that he made the said statement before the Magistrate. He further stated that the accused person had also confessed before the police in their presence indicating that he had killed his wife with a lathi. This witness was examined by the defence and he denied the suggestion that the accused did not visit his house with a lathi in his hand and also that he did not confess his guilt. From the cross-examination of this witness, nothing could be brought out to demolish his evidence. No evidence has also been adduced to show that this witness had any ill feeling or any biasness against the appellant. Therefore, we find nothing against the credibility of this witness. Hence, his evidence regarding extra-judicial confession is acceptable. 13. Sri Thuru Mirdha, who was the Secretary of the Village Defence Party, deposing as PW-3, stated that the appellant had visited his house with a lathi in his hand and that he had informed him that he had killed his wife with the said lathi. This witness further stated that the appellant had requested him to assist him to surrender before the police. According to this witness, he had informed the Gaon Burha (PW-4). He further stated that he, along with the Gaon Burha, went to the house of the appellant and found the dead body of the deceased, lying in the courtyard. He also stated that, in the meantime, police had arrived and conducted inquest in respect of the dead body. He further stated that the police seized the lathi from the appellant vide ext. No.1. In his cross examination, this witness denied the suggestion that the appellant did not confess before him. There is nothing on record to show that this witness had any reason or ill feeling to falsely implicate the appellant. We find sufficient corroboration in the evidence of PW-3 and PW-4. 14.
No.1. In his cross examination, this witness denied the suggestion that the appellant did not confess before him. There is nothing on record to show that this witness had any reason or ill feeling to falsely implicate the appellant. We find sufficient corroboration in the evidence of PW-3 and PW-4. 14. Sri Sachin Ghatowar another brother of the appellant, deposing as PW-5, stated that he had seen the dead body of the deceased in the couretyard and that the Gaon Burha and others had assembled in the place of occurrence. 15. Mrs. Rina Ghatowar, who deposed as PW-7, expressed her ignorance as to how the deceased met with her death. 16. The medical officer, who conducted the post mortem examination has been examined as PW-6. He stated that he found the following injuries in respect of the dead body. "Wounds A fracture over face. A fracture on scalp of forehead Fracture on right chest wall below shoulder joint. Blunt injuries over both the feet. Bruise Bruise mark over the fact. No mark of ligature over neck. Uranium and Spinal Canal A fracture of scalp and frontal bone and orbital cavity. Brain matter decomposed. Spinal cord is intact." The medical officer also found several blunt injuries on the head, face, scalp and multiple fractures leading to laceration of brain and haemorrhage. He opined that the injuries were anti-mortem in nature and that the deceased died due to shock and haemor rhage relating to the head injury. He has exhibited the post mortem report as ext. No. 7. He, however, opined that the injuries might have been caused by an object like that of material ext. No. 1, i.e. bamboo lathi. The material ext. was seized by the Police. The medical evidence has supported the prosecution version regarding the use of the material ext. No. 1, i.e. the lathi, which was seized from the possession of the appellant. The nature of the injuries sustained by the appellant also indicate that the injuries were caused by a lathi. Hence, seizure of the said lathi from the possession of the appellant sufficiently support the prosecution version that the appellant had assaulted the deceased with the seized lathi i.e. material ext. No. 1. 17. Sri Pabitra Khanikar, who was the in-charge of the police station, deposing as PW-8, stated that on 18.7.2005, he received an FIR from the PW-2 and registered the same.
No. 1. 17. Sri Pabitra Khanikar, who was the in-charge of the police station, deposing as PW-8, stated that on 18.7.2005, he received an FIR from the PW-2 and registered the same. He further stated that Sri Biren Dutta, who was entrusted with the preliminary investigation of the case, completed the preliminary investigation. He further stated that he had recorded the statement of Sri Bablu Ghatowar PW-2, Sri Kanai Lal Kayastha PW-4 and Sri Nuru Mirdha PW-3 (not examined). 18. Sri Biren Dutta, ASI of Police, deposing PW-9, stated that, on 18.7.2005, at about 5-30 p.m., Jongli Bhumiz i.e. PW-1 had orally informed him about the incident and accordingly he had made GD Entry No. 297 dated 18.7.2005 and proceeded to the place of occurrence along with a police constable. He also stated that the dead body of the deceased was found in their courtyard and that he prepared the inquest report and forwarded the dead body for post mortem examination. The said investigating officer further stated that he had seized the bamboo lathi in presence of witnesses vide ext. No. 1. 19. From the above discussed evidence, it is found that the dead body of the deceased, who was the wife of the appellant, was found lying dead in their courtyard. Admittedly, as both of them, being husband and wife, were living together, the burden lied upon the appellant to explain as to how and under what circumstances the deceased had met with her death. From the medical evidence it is found that the deceased died due to the assault caused to her with a blunt weapon like the material ext. No. 1 i.e the lathi. The Investig ating Officer had seized the lathi (Material Exhibit No. 01) from the possession of the appellant. 20. As discussed above, PW-2, PW-3 and PW-4, dwho are found to be reliable witnesses, clearly stated that the appellant had visited their houses with a lathi in his hand and that he disclosed that he had killed his wife. There was no compelling circumstance, on the part of the appellant to make such disclosure. We find nothing to hold that the said witness had any enmity or previous grudge to falsely implicate the accused person. PW-2 was the brother of the appellant, PW-3 and 4 were the VDP Secretary and the Gaon Burha respectively.
There was no compelling circumstance, on the part of the appellant to make such disclosure. We find nothing to hold that the said witness had any enmity or previous grudge to falsely implicate the accused person. PW-2 was the brother of the appellant, PW-3 and 4 were the VDP Secretary and the Gaon Burha respectively. Therefore, considering the status of the said witnesses and the absence of any enmity or adverse interest against the appellant, the evidence given by the said three witnesses, regarding the extra-judicial confession, is found to be trustworthy, reliable and cogent. Absence of any compulsion or influence, indicates that the said confession was voluntary. Therefore, we find nothing against the credibility of the said extra-judicial confession. This being the position, we are inclined to accept the evidence given by the PW Nos. 2,3 and 4 aforesaid to believe that the appellant, after causing the death of the deceased, by assaulting her with a lathi i.e. material ext. No. 1, had voluntarily confessed before the said witnesses. 21. The Investigating Officer i.e. PW-9 stated that he had seized the lathi i.e. material ext. No. 1 vide ext. No. 1. The seizure of the said lathi from the possession of the appellant, after the occurrence is a strong circumstantial evidence indicating the use of the same by the appellant in causing the crime. We have already noticed from the medical evidence that a lathi like the Material Exhibit No. 1 was used in causing the injuries. 22. In the present case the appellant, who denied to have made any confession, failed to put forward any explanation as to how his wife sustained the injuries and met with her death. The failure of the appellant, to satisfac torily explain the cause of death of his wife goes against him. His silence in this regard fortifies the evidence, given by the said prosecution witnesses. The fact that the dead body of the deceased i.e. the wife of the appellant was lying in their courtyard, sustai ning injuries, is also another strong circumst antial evidence. 23.
His silence in this regard fortifies the evidence, given by the said prosecution witnesses. The fact that the dead body of the deceased i.e. the wife of the appellant was lying in their courtyard, sustai ning injuries, is also another strong circumst antial evidence. 23. The said circumstantial evidence i.e. the fact that the deceased was lying dead, sustaining injuries, in the courtyard, that the appellant was found moving with a lathi in his hand after the occurrence, that the lathi was seized by the police, that the appellant made extra-judicial confession before PW-2,3 and 4, and that the appellant and the deceased used to live in the same house as husband and wife irresistibly lead to the conclusion that, none other than, the appellant had caused the death of the deceased. 24. In view of the above, considering entire aspect of the matter, we find no hesitation in holding that the prosecution could prove the charge, brought against the appellant. The multiple injuries sustained by the deceased indicates that the assailant i.e. the appellant had inflicted the blows on various parts of the body, including the vital parts i.e. the head, scalp etc. with an intention to cause the death. The act done by the appellant does not fall under any of the exceptions provided by Section 302IPC. 25. In view of above discussion, we find that the prosecution could prove that the appellant committed the offence of murder by causing the death of the deceased. Therefore, we hold that the learned Sessions Judge committed no error by convicting and senten cing the appellant under Section 302 IPC. Accordingly, we find no merit in this appeal. The appeal is dismissed and the impugned conviction and sentence are affirmed and upheld. Before we part with this record, we appreciate the assistance rendered by Ms. D. Buragohain, learned counsel, as Amicus Curiae and direct that an amount of Rs. 5,000/- be paid to Ms. D. Buragohain, learned Amicus Curiae, by the State Legal Services Authority, as her remuneration. Return the L.C.R. _____________