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2012 DIGILAW 1129 (GAU)

Papu Munda v. State of Assam

2012-09-21

A.K.GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 22.12.2006, passed by the learned Sessions Judge (F.T.C.), Sivsagar, in Sessions case No. 144 (S-C)/200S, is in challenge in this appeal. By the impugned judgment and order, the learned Sessions Judge convicted the appellant aforesaid, under Section 302 IPC and sentenced them to suffer imprisonment for life and pay a fine of Rs. 1,000/- in default suffer rigorous imprisonment for another period of one month for his conviction under Section 302 IPC. Aggrieved by the said conviction and sentence, the convicted person, namely Papu Munda has come up with this appeal. The prosecution case, in brief, is that, on the night of 3.7.2005, at about 7 P.M., the appellant caused the death of his brother namely Dangra Munda (herein after called the deceased) by inflicting blows with a dao and thereafter concealed the dead body in a river and kept the dao hidden in his house. After committing the said crime, the appellant made extra judicial confession before PW 4, PW 5 and PW 6 and on being advised by them, he appeared at the Police Station, on 4.7.2012 and disclosed that he would be able to lead the Police to the recovery of the dead body, as well as the incriminating dao. Accordingly, Police, making a G.D. Entry, took the appellant into custody and on being led by him, on 4.7.2005, recovered the dead body from and seized the incriminating dao, on being produced by the appellant from his house. In the meantime, the wife of the deceased, as informant, lodged an FIR with the Police informing that the appellant, after causing death of her husband, had thrown the dead body into a drain. 2. On receipt of the said FIR, Police registered a case under Section 302 IPC. During the investigation, Police recorded statement of witnesses, conducted inquest of the dead body, prepared a sketch map of the place of occurrence, forwarded the dead body for post mortem examination, seized the incriminating weapon on being produced by the appellant from his house. Completing the investigation, Police submitted charge sheet under Sections 302/ 34 IPC against the appellant and Sri Raju Munda @ Pagla. 3. Completing the investigation, Police submitted charge sheet under Sections 302/ 34 IPC against the appellant and Sri Raju Munda @ Pagla. 3. The offence being exclusively triable by the Court of Sessions, the accused were committed and accordingly the learned Additional Sessions Judge framed charges under Section 302/ 34 IPC against Shri Raju Munda @ Pagla (since acquitted) and Sri Papu Munda (appellant). The learned Sessions Judge also framed charges under Sections 457 and 307 against the Sri Raju Munda. The charges were explained and read over to the accused persons, to which they pleaded not guilty and claimed to be tried. 4. In order to prove their case, the prosecution examined as many as 12 witnesses including the Medical Officer (PW 7), who performed the autopsy and the Investigating Officer (PW 12). At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce evidence. 5. Considering the evidence on record, the learned Sessions Judge found the appellant guilty of the offence under Section 302 IPC and accordingly convicted and sentenced him as indicated above. The other accused person, namely, Raju Munda @ Pagla was acquitted from the charges for want of evidence. 6. Mrs. R.D. Mazumder, learned Amicus Curiae, appearing for the appellant, has submitted that there is no eye witness to the occurrence and that the prosecution failed to adduce any direct or substantive and reliable evidence against the appellant. In view of the above, it is submitted that the learned Sessions Judge committed error by convicting the appellant only on the basis of the extra judicial confession, made by the appellant. Therefore, it is submitted that the impugned conviction and the sentence are liable to be set aside and that the appellant should be acquitted and set at liberty. 7. Mr. Z. Kamar, learned Public Prosecutor, referring to the extra-judicial confession, made before PW 5 and others and the statements made before the Investigating Officer, leading to the discovery of the dead body, as well as the seizure of the incriminating weapon, has submitted that there is sufficient cogent and reliable evidence forming the basis of conviction. 7. Mr. Z. Kamar, learned Public Prosecutor, referring to the extra-judicial confession, made before PW 5 and others and the statements made before the Investigating Officer, leading to the discovery of the dead body, as well as the seizure of the incriminating weapon, has submitted that there is sufficient cogent and reliable evidence forming the basis of conviction. It is also submitted that there being nothing to show that PW 5 and PW 6, before whom the appellant had initially made extra judicial confession, were bias or unreliable, their evidence, regarding extra judicial confession, cannot be brushed aside. Referring to a decision held in the case of Rohidas Manik Kasrale Vs. State of Maharashtra, 2012 Cri. L.J. 917, the learned Public Prosecutor has submitted that the extra judicial confession, made before the Police officer, before the arrest of the accused person is not hit by Section 25 or Section 26 of the Evidence Act and as such the confession made by the accused person, in the Police Station, before the registration of the case, can be relied upon. It is also submitted that the dead body and the incriminating weapon were recovered by the Police on being led by the accused and that this discovery is a strong circumstantial evidence, supporting the extrajudicial confession aforesaid. In view of the above, the learned Public Prosecutor has submitted that the prosecution could establish the case, beyond all reasonable doubt, against the appellant and as such the learned Trial Judge committed no error by recording the conviction and sentence against him. 8. In order to appreciate the arguments, advanced by the teamed counsel, for both the parties, we feel it appropriate to, briefly, scan the evidence on record. Admittedly in the present case, there is no eyewitness to the occurrence. The conviction has been awarded on the basis of circumstantial evidence i.e. the recovery of the dead body and the seizure of the incriminating weapon at the instance of the appellant and relying on the extrajudicial confession, made by the appellant before PW 5 and PW 6. The law regarding evidentiary value of extra judicial confession has been well settled in the case of State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48 . In the said case, the Supreme Court observed as follows :- 15. The law regarding evidentiary value of extra judicial confession has been well settled in the case of State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48 . In the said case, the Supreme Court observed as follows :- 15. There is neither any rule of law nor of prudence that evidence furnished by the extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence. See Jagta v. State of Haryana 1974 CriLJ 1010 and State of Punjab v. Bhajan Singh & Ors. 1975 CriLJ 282. In Sahoo v. State of U.P. 1966 CriLJ 68, it was held that an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime. Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyara Singh v. State of Punjab (1978) 1 SCC 661, this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra judicial appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. It thus appears that extra judicial appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession conies from the mouth of witness/witnesses, who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are deer; unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence to a rigorous test on the touchtone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trust-worthy and beyond reproach the same can be relied upon and a conviction can be founded thereon. The case of M.K. Anthony (supra) was referred to by the Supreme Court in the case of Vinayak Shivajirao Pol Vs. State of Maharashtra, AIR 1998 SC 1096 . A Division Bench of this Court also in the case Mantu Telenga & Anr. Vs. State of Tripura, 2006 (3) GLT 453, referred to the case of M.K. Anthony (supra) and observed that the value of extrajudicial confession depends on the facts and circumstances of each case and, if the witnesses, are found to be unbiased and not even remotely inimical to the accused, greater value is to be attached of the evidence of such witness. In view of the above, if the evidence regarding extrajudicial confession is rendered by person(s) who is not inimical to accused or who has no adverse intention or reason to be bias, the evidence given by such person regarding extra judicial confession can be accepted. 9. In the present case, Md. In view of the above, if the evidence regarding extrajudicial confession is rendered by person(s) who is not inimical to accused or who has no adverse intention or reason to be bias, the evidence given by such person regarding extra judicial confession can be accepted. 9. In the present case, Md. Aliur Rahman (PW 5), who knew the appellant as well as the deceased stated that, on the next morning of the date of occurrence, while he was taking breakfast, in the house of his sister, the appellant visited his sister's house and told her in his (PW 5) presence that he had killed his elder brother. This witness further stated that, on being asked by him as to why he had killed his brother, the appellant had replied that the deceased, who was his elder brother, had made an attempt to assault him and as such, snatching the dao from the hand of the deceased, he had inflicted blows on him. He further disclosed that after killing his brother, he had concealed the dead body in a drain. This witness further stated that his sister had advised the appellant to appear before the Police and on being requested by the appellant, he had accompanied him to the Police Station. According to this witness, the appellant had led the Police to his house and produced the incriminating weapon i.e. a dao. He further stated that the dao was seized by the Police vide Exhibit 1. Exhibiting the said dao, as material exhibit No. 1, this witness stated that Exhibit 1(3) was his signature in the seizure list. He further stated that the appellant had also led the Police to the place where he had concealed the dead body and that the Police recovered the said dead body at the instance of the appellant. According to this witness, after recovery of the dead body and on being requested by the informant i.e. the wife of the deceased, he had written the FIR wherein the informant had put her thumb impression. He has exhibited the FIR as Exhibit 3 and his signature thereon as Exhibit 3(1). This witness was cross-examined on behalf of the defence. No contradiction or anything inimical to the accused could be elicited to render his evidence unacceptable. The defence failed to show that this witness had any grudge or adverse interest to falsely implicate the appellant. He has exhibited the FIR as Exhibit 3 and his signature thereon as Exhibit 3(1). This witness was cross-examined on behalf of the defence. No contradiction or anything inimical to the accused could be elicited to render his evidence unacceptable. The defence failed to show that this witness had any grudge or adverse interest to falsely implicate the appellant. Therefore, it is found that this witness, being an independent person, had no reason to be biased or to falsely depose against the appellant. Therefore, the evidence given by him is found to be reliable and trustworthy. 10. Mr. Monbhai Tamang, another independent witness from the same village, supporting the evidence of PW 5, deposed as PW 6. He also stated that, while he was proceeding towards the Town, he met the appellant and PW 5 on the road and the appellant had told him that he had cut his brother. This witness further stated that he also accompanied the appellant and PW 5 to the Police Station for handing over the appellant to the Police. This witness was cross-examined, on behalf of the defence, but nothing could be elicited to discredit his evidence. There is nothing to show that PW 6 aforesaid had any adverse interest or grudge to falsely implicate the appellant. 11. The Investigating Officer, deposing as PW 12, has stated that the appellant had made statement before him disclosing that on 3.7.2005, he had caused the death of the deceased with a dao and that he had kept the dead body in a drain. According to the Investigating Officer, the said appellant had also implicated one Pagla @ Raju Munda and stated that he would be able to show the dead body and the incriminating dao. The Investigating Officer recorded the statement, made by the appellant and exhibited the same as Exhibit No. 7. The Investigating Officer, after recording the said statement i.e. exhibit 7 aforesaid visited the place of occurrence and the house of the appellant, along with the appellant, and on being led by the appellant, recovered the dead body and the incriminating dao. 12. Supporting the evidence of the Investigating Officer, Smt. Aita Munda (PW 1) (informant) stated that the appellant had produced the dao before the Police and that the same was seized vide Exhibit 1. She has also exhibited the dao as material exhibit No. 2. 12. Supporting the evidence of the Investigating Officer, Smt. Aita Munda (PW 1) (informant) stated that the appellant had produced the dao before the Police and that the same was seized vide Exhibit 1. She has also exhibited the dao as material exhibit No. 2. Smt. Lakhimoni Munda, deposing as PW 2, stated that, on the next date, the appellant led the Police to the discovery of the dead body of the deceased. 13. Shri Uday Munda deposing as PW 3 stated that he was a witness to the seizure of the dao. He has exhibited the dao as material Exhibit 1. 14. Shri Nil Bahadur Chetri, who was the Secretary of the VDP, deposing as PW 4, stated that the appellant had told the Police that he had kept the dead body of the deceased in a drain and accordingly, on being shown by the appellant, the dead body of the deceased was recovered. This witness further stated that the appellant, in presence of the Police, had produced a dao from his house, which was seized vide Exhibit No. 1. This witness was also a witness to the said seizure. He has exhibited the said weapon as material exhibit No. 1. 15. Sri Matlib Ali (PW 8) also stated that the appellant had produced a dao from his house and that the dao was seized vide Exhibit No. 1. He was also a witness to the said seizure. He has exhibited the dao as material Exhibit No. 1. 16. Sri Mangal Munda (PW 9), was a witness to the inquest, also stated that Police had recovered the dead body, on being led by the appellant. 17. Shri Gobinda Mura, who deposed as PW 10, also stated that the appellant had led the Police to the discovery of the dead body. 18. All of the said witnesses were duly cross-examined by the defence, but no material contradiction could be brought out to demolish their evidence regarding leading to the discovery of the dead body and the seizure of the dao at the instance of the appellant. 19. A careful scrutiny of the above discussed evidence clearly lead to the finding that the appellant after his arrival in the Police Station, made a statement indicating that he had concealed the dead body and the incriminating dao after causing the death of the appellant. 19. A careful scrutiny of the above discussed evidence clearly lead to the finding that the appellant after his arrival in the Police Station, made a statement indicating that he had concealed the dead body and the incriminating dao after causing the death of the appellant. The said statement though made before Police, is not hit by Sections 25 and 26, inasmuch as the same was a statement leading to the discovery of the dead body and the incriminating weapon. There is nothing on record to show that the said witnesses, who supported the prosecution version regarding leading to discovery of the dead body of the deceased and the incriminating weapon, had any reason to falsely implicate the appellant. Therefore, we find sufficient force in favour of the prosecution version that the appellant had led the Police to the discovery of the deceased as well as the incriminating weapon and that the dead body and the incriminating weapon were recovered at the instance of the accused. Hence the facts regarding the discovery of the dead body and the incriminating weapon have been established. 20. From the above discussed evidence of PW No. 5 and 6 sufficient corroboration is found, inspiring confidence, to believe that the appellant had voluntarily made extra judicial confession. Further the recovery of the dead body as well as the incriminating weapon, at the instance of the appellant, are found to be strong circumstantial evidence lending support in favour of the said extra judicial confession. In view of the above, as the said witnesses are not found to be biased or inimical to the accused person, then evidence regarding extra judicial confession can be treated as substantive evidence against the appellant. As the evidence of PW 5 and PW 6 are found to be trustworthy and reliable, the said extra judicial confession, coupled with the recovery of the dead body and the incriminating weapon at the instance of the appellant, irresistibly lead to the only conclusion that, none other than, the appellant had caused the death of the deceased. 21. Law is well settled that confessional statement made by an accused person is to be accepted in its face value taking the whole statement into account. 21. Law is well settled that confessional statement made by an accused person is to be accepted in its face value taking the whole statement into account. From the evidence of PW 5, before whom the extra judicial statement was made, it is found that the appellant had explained as to under what circumstances he was required to cause the death of the deceased. The appellant clearly stated that the deceased had made an attempt to assault him and as such he had snatched the dao and inflicted the blows. The medical evidence given by PW 7, who performed (sic.) reveals that the following injuries were found in (sic.) dead body External appearance a sharp cut injury over the left side of the cheek 5' x 1' x 2" size and one sharp cut injury in the neck in its upper one severing all the structures of the neck only attaching the neck in its posterior aspects with the skin and subcutaneous tissues. 22. From the above medical evidence, it appears that the appellant had given one or two blows with the dao, which is said to be snatched away from the hand of the deceased. The Medical Officer opined that the injury No. 2 was sufficient to cause the death of a person in ordinary course of action. While accepting the extra judicial confession in its entirety, we find no reason not to disbelieve the said statement, made by the appellant, that he was initially attacked by his elder brother and that he had inflicted the blows after snatching the dao from his brother. Therefore, it is found that the appellant had inflicted only one or two fatal blows after snatching the dao from the deceased. Therefore, it is found that the appellant was not armed with any weapon, but had snatched away incriminating weapon from the hands of the deceased, who made an attempt to assault. Naturally, as the appellant was attacked with a dao, he had the reason to believe that, unless he snatched away the dao from his brother and inflict the blow, he would be assaulted with the said dao. There is no evidence, on record, to show that the appellant had initially attacked the deceased. There is also nothing on record, to show that the appellant was armed with the dao since prior to the incident. There is no evidence, on record, to show that the appellant had initially attacked the deceased. There is also nothing on record, to show that the appellant was armed with the dao since prior to the incident. There is no evidence to show as to under what circumstances the incident took place. Therefore, we feel inclined to believe the version of the appellant that the deceased made attempt to attack him. 23. In view of the above, we find sufficient material to believe that the appellant was provoked by the deceased, by making attempt to assault him with the dao. Had he not been attacked by the deceased, the appellant in all probability, would not have caused his death, by inflicting the blows. 24. In the light of the attending facts and circumstances of the case, there is nothing on record to show that the appellant had any previous grudge or adverse interest to attack his brother, with, whom he used to live under the same roof. Therefore, considering entire aspect of the matter, it cannot be ruled out that the alleged attack, made by the deceased, provoked the appellant, resulting loss of power of self-control due to grave and sudden provocation, as a result of which the appellant, who was initially unarmed, without any pre-meditation, in a sudden tight, in a heat of passion, upon a sudden quarrel had inflicted the said fatal blow. 25. Considering the fact situation, it can be well understood that the appellant, had no intention to inflict the blow on the vital part of the body with an intention to cause death. It is found that the appellant snatching the dao, had given blow and the same landed on the neck causing fatal injury. In view of the above, considering entire aspect of the matter, we are inclined to hold that the act committed by the appellant is covered by Exceptions 1 and 4 of Section 300 IPC. Therefore, the offence committed by the appellant cannot be held to be a murder but, the same, in our considered opinion, was a culpable homicide not amounting to murder, which is an offence under Section 304 IPC. 26. Therefore, the offence committed by the appellant cannot be held to be a murder but, the same, in our considered opinion, was a culpable homicide not amounting to murder, which is an offence under Section 304 IPC. 26. From the medical evidence, given by PW 7, it is found that the first blow had caused a cut injury on the left side of the cheek and the second blow had caused a cut injury on the neck severing all the structures of the neck. It is found that the neck was almost severed. The nature of the said injury, the part of the body (neck being a vital part), on which the injury was inflicted and the type of weapon used, clearly indicate that the appellant had inflicted the said bodily injury knowing well that the same was likely to cause death, inasmuch as it is common knowledge of every person that such a deep cut injury inflicted on the neck is likely to cause death of a person. Therefore, we have no hesitation in holding that the offence committed by the appellant fells under Section 304 Part-I. In view of what has been discussed above, we are inclined to hold that the conviction and sentence recorded under Section 302 cannot be maintained and the same is liable to be modified to one under Section 304 Part-I and accordingly we do. Consequently, the sentence is also modified requiring the appellant to suffer rigorous imprisonment for seven years instead of life imprisonment. No interference is made in respect of the sentence with regard to the fine. 27. Before we part with this judgment, we appreciate the assistance rendered by Smt. R.D. Mazumdar, learned Amicus Curiae. We order that an amount of Rs. 5,000/- be paid to the learned Amicus Curiae, as her remuneration, by the Assam State Legal Services Authority. There can be no dispute that due to the death of the deceased, his dependants suffered great loss. Therefore, for the sake of brevity, without repeating the discussions made in the Criminal Appeal No. 93 (J)/2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357A IPC, we make the following directions : (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs. 50,000/- be deposited by the State Government with the District Legal Services Authority of Tinsukia District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation. (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/- without delay; in favour of the State Government. Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needful. Return the LCR.