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2012 DIGILAW 1056 (GAU)

Dhaniram Das v. State of Assam

2012-09-06

I.A.ANSARI, INDIRA SHAH

body2012
JUDGMENT Ansari, J. 1. This is an appeal against the judgment and order, dated 08.11.2006, passed, by the learned Sessions Judge, Lakhimpur, in Sessions Case No. 55(NL)2005, convicting the accused-appellant, under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of six months. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 26.01.2005, at about 3:30 A.M., while Hiren Das, youngest son of Kusha Das, (PW1) was chasing the inmates of the house of Kusha Das with a dao to injure and kill them, Hiren Das stumbled and fell down and, at that moment, apprehending that Hiren Das could, on getting up, injure his parents and brother and he may even kill them, accused Dhaniram Das, eldest son of PW1, gave blows by a dao, on Hiren Das, causing his death. Kusha Das (PW1), then, lodged an Ejahar (Ext. 1) at Dholpur Police Out Post. A General Diary was accordingly made at the said Out Post and, treating the said Ejahar as First Information Report (in short, 'FIR'), Bihpuria Police Station case No. 12 of 2005, under Section 302 IPC, was registered against the accused-appellant. During investigation, police visited the place of occurrence, held inquest over the dead body of Hiren Das, seized the dao, which was allegedly used by the accused-appellant to cause his brother's death, and, on completion of investigation, police laid charge-sheet against the accused under Section 302 IPC. 2. At the trial, when a charge, under Section 302 IPC, was framed against the accused-appellant, he pleaded not guilty thereto. 3. In support of their case, prosecution examined as many as 8 (Eight) witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, he denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, found the accused-appellant guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as convicted person, has preferred this appeal. 5. We have heard Ms. 4. Having, however, found the accused-appellant guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as convicted person, has preferred this appeal. 5. We have heard Ms. N. Barman, learned amicus curiae, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 6. Before entering into the discussion of the merit of the various incriminating pieces of evidence, which the learned trial Court has relied upon to hold the accused-appellant guilty of the offence, which he had been charged with, we may point out that, according to the evidence of the doctor (PW5), who had conducted the post mortem examination, on 26.01.2005, on the dead body of Hiren Das, he had found the following injuries: 1. Cut injuries over right side of the head, situated anteriorally posteriorally size- 6" X 1" into bone deep 2. Cut injuries below right ear cutting a part of the pina, size - 6" X 1" X 1/2. 3. Cut injuries on left side of the forehead, size-3" X 1" X 1/2". 4. Cut injuries on left side of the beck, trachea and vertebral body, size - 6" X 3" X 3". 5. Cut injuries on left fore-arm, size - 3" X 1" X 1/2". 6. Cut injuries over right scapula situated transversely, size - 4" X 1/2" X 1/4". 7. Cut injuries over the right scapula, size - 1" X 1/4" X 1/4". Abdomen was normal. Cranium and spinal canal normal." 7. It is in the evidence of the doctor (PW5) that all the injuries were ante mortem in nature and the death was due to shock and haemorrhage as a result of the injuries, which the said deceased had sustained. 8. The findings of the doctor and his opinion, with regard to the nature of the injuries and the cause of death, were not challenged by the defence. The doctor's findings clearly show that there were as many as 7 (seven) cut injuries, on various parts of the body of Hiren Das including as many as 3 (three) cut injuries on his head, had been caused. These injuries clearly indicate that Hiren Das was intentionally put to death. The doctor's findings clearly show that there were as many as 7 (seven) cut injuries, on various parts of the body of Hiren Das including as many as 3 (three) cut injuries on his head, had been caused. These injuries clearly indicate that Hiren Das was intentionally put to death. The question, however, is: Whether the accused-appellant was the one, who had caused the injuries on Hiren Das leading to his death? 9. While considering the question posed above, it needs to be pointed out that the prosecution heavily relied, and so did the learned trial Court, on the confessional statement, which had allegedly been made by the accused-appellant and recorded by the Judicial Magistrate (PW7). While considering the judicial confession, which had been recorded by the Judicial Magistrate (PW7), it needs to be pointed out that a confession, in order to become basis of conviction of an accused, must be proved to be 'voluntarily' and 'true'. If the defence succeeds in making it appear to the Court that the confession is not voluntary, it would be sufficient to discard the confession as a whole and it would no longer be necessary, in such a case, to determine if the confession is or is not true. 10. It needs to be borne in mind that Section 24 of the Evidence Act uses the expression 'appear' and not the word 'prove'. A confession, therefore, need not to be proved to be involuntarily made. It would discharge the burden of the defence if it succeeds in making it 'appear' to the Court that the confession is involuntary in the sense that the possibility of the confession having been made by inducement, threat or promise cannot be ruled out. Thus, the Court need not look for proof that the confession is voluntary. Even if probabilities exist that the confession is voluntary, the Court is bound to reject the confession as unreliable. 11. In the present case, as rightly pointed out by the learned trial Court, the accused was produced before the Judicial Magistrate (PW7), on 27.01.2005, from police custody and he was remanded to judicial custody till 28.01.2005. The accused was accordingly produced before the Judicial Magistrate, on 28.01.2005, at 10:45 am, and, having given him preliminary warning, the Magistrate (PW7) gave him time for reflection until 2:00 pm. The accused was accordingly produced before the Judicial Magistrate, on 28.01.2005, at 10:45 am, and, having given him preliminary warning, the Magistrate (PW7) gave him time for reflection until 2:00 pm. What appears to have escaped the notice of the learned trial Court is that during the period of reflection, the accused had been left under the control and custody of a constable, Thaneswar Hazarika, in the chamber of the Judicial Magistrate (PW7). 12. It needs to be pointed out that the accused was produced, from police custody, by the police and though he was remanded to judicial custody, he was carried to judicial custody by police, and he was reproduced before PW7, on 28.01.2005, by, once again, police. Even when the accused was given time for reflection, he still remained in the custody of the constable. The mere fact that the constable, in question, was not involved in the investigation of the case, would make no difference in the matter inasmuch as PW7, as the record reveals, did not even assure the accused-appellant that he would not be handed over to the custody of the police even if he chose not to make any confession. This apart, as the record reveals, the Magistrate did not put any searching question to the accused and did not try to find out from him as to why he (accused) had opted to make the confession. The Magistrate has, thus, miserably failed, in the face of the materials on record, to make the accused feel free from the influence of the police and could not, in the facts and attending circumstances of the present case, be held to have inspired confidence in the mind of the accused that even if he chose not to make confession, he would still not be given back into the custody of the police. 13. In the face of the disturbing materials, which we have pointed out above, there can be no escape from the conclusion that the confession, though judicial, could not have been treated, and ought not to have been treated by the learned trial Court, as a voluntarily made confession. The confessional statement ought to have, therefore, been kept excluded from the purview of consideration by the learned trial Court, which the learned trial Court failed to do. 14. The confessional statement ought to have, therefore, been kept excluded from the purview of consideration by the learned trial Court, which the learned trial Court failed to do. 14. The judicial confession, in question, having, thus, been discarded on the ground that it had not been made voluntarily, prosecution is left with no substantial incriminating evidence against the accused-appellant. From the impugned judgment and order, it transpires that the learned trial Court has freely relied upon the previous statements, which were made by the prosecution witnesses to the police officer during investigation, describing the occurrence of assault by the accused-appellant on the said deceased. Though, merely because a witness has been declared hostile, his entire evidence is not washed off the record and his evidence cannot be discarded lock, stock and barrel, the fact remains that the previous statement, made by a witness, during the course of investigation, cannot be made basis for conviction of accused inasmuch as Section 162 Cr.PC makes it clear that the previous statement, made by a person acquainted with the facts of a case, can be used by the prosecution, with, of course, the leave of the Court, for the purpose of contradiction. The previous statements, which the learned trial Court has placed reliance upon, were not substantive pieces of evidence and could not have, therefore, become the learned trial Court's basis for arriving at the conclusion of guilt of the accused-appellant. 15. Situated thus, we are wholly satisfied that, in the case at hand, the evidence on record were wholly inadequate to hold the accused-appellant guilty of the offence, which he had been charged with. 16. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentence, passed against him by the impugned judgment and order under appeal, are hereby set aside. The accused-appellant is held not guilty of the offence of murder and he is acquitted of the same. 17. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 18. With the above observations and directions, this appeal stands disposed of. 19. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for he valuable assistance rendered to the Court. Send back the LCR.