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2012 DIGILAW 1278 (GAU)

Chanika Karlong v. State of Assam

2012-11-20

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT I.A. Ansari, J. 1. This is an appeal against the judgment and order, dated 08.08.2007, passed, in Sessions Case No. 60 (M)/2007, by the learned Additional Sessions Judge No. 2, (FTC), Tinsukia, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 500/- and, in default of payment of fine, suffer rigorous imprisonment for a period of three months, The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: On 30.10.2006, at about 1.30 pm, accused Chanika Karlong assaulted his brother, Soma Hassa, by means of an axe at their residence on several parts of his body and, in consequence thereof, Soma Hassa died. A written Ejahar was lodged by Konwar Hassa, son of the said deceased, at Margherita Police Station, on the day of the occurrence itself, i.e., on 30.10.2006, at about 4.10 pm. accusing his uncle, Chanika Karlong, of having killed the informant's father, Soma Hassa, by giving him blows with an axe. Based on the said Ejahar and treating the same as the First Information Report (in short, 'FIR'), Margherita Police Station Case No. 166/2006, under Section 302 IPC, was registered against the accused. During investigation, police visited the place of occurrence, held inquest over the said dead body, took the accused into custody and produced him before a Judicial Magistrate and, on his production, the accused made a judicial confession. On completion of investigation, police laid charge-sheet, under Section 302 IPC, against the accused. 2. At the trial, when a charge, under Section 302 IPC, was framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 7 (seven) 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 defence being that of denial. No evidence was adduced by the defence. 4. However, having found the accused guilty of the offence, which he was 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 convicted person has preferred this appeal. 5. We have heard Ms. B. Sharma, learned amicus curiae, and Mr. 4. However, having found the accused guilty of the offence, which he was 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 convicted person has preferred this appeal. 5. We have heard Ms. B. Sharma, learned amicus curiae, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 6. Though PW1, Konwar Hassa, son of the deceased, is the informant of the case, he has no personal knowledge if the accused-appellant had really killed his father, Soma Hassa, inasmuch as the evidence of PW1 is that on the day of the occurrence, when he was working in the garden factory, he was informed by someone that his father had been assaulted by the accused-appellant and, on receiving the information, when he returned home, he found his father lying dead with injury on his person and the accused-appellant was found sitting nearby and he, then, lodged an Ejahar, which is Ext. 1. 7. The evidence of PW2, who is a co-villager of the deceased, is not very different from the evidence of PW1 inasmuch as PW2, too, has deposed to the effect that he heard from his co-villagers that Chanika (i.e., the accused-appellant) had killed his brother, Soma Hassa, by means of an axe. 8. As far as PW3 is concerned, his evidence is that on hearing from his co-villagers that Chanika (i.e., the accused-appellant) had killed his brother, Soma, by means of an axe, he went to the house of the deceased and saw the dead body of Soma lying dead inside his house and the accused was sitting at the veranda of his house in an intoxicated state and told him (PW3) that he had killed his brother. 9. What is, however, of immense importance to note, in the evidence of PW3, is that he has deposed, in his evidence, that the accused had been shouting irrelevant things. In his cross-examination, PW3 has deposed that the accused was, at that point of time, intoxicated and had been saying things, which made no sense. 10. Considering the fact that the accused-appellant was in a highly intoxicated state and saying things, which made no sense, his shouting that he had killed his brother was and is highly unsafe to place reliance upon. 10. Considering the fact that the accused-appellant was in a highly intoxicated state and saying things, which made no sense, his shouting that he had killed his brother was and is highly unsafe to place reliance upon. A confession, judicial or extra-judicial, has to be made by a person, who is in complete command of his senses. When a person, such as, the present one, was, admittedly, in intoxicated state and was making irrelevant statements, his statement or his shout to the effect that he had killed his brother cannot really be treated as a consciously made confession. The extra-judicial confession, so made, could not have been, and ought not to have been, relied upon by the learned trial Court. 11. As far as PW4 is concerned, his evidence is not very different from PW2 inasmuch as he has deposed, in his evidence, that he heard, after returning from his work, that Chanika (i.e., the accused-appellant) had killed his brother, Soma Hassa, by means of an axe and police showed an axe at the police station and obtained his signature. 12. PW6 is a Judicial Magistrate, who has recorded the confession of the accused-appellant. The defence, while cross examining PW6, clearly suggested to her that confession was made by the accused at the instance of the police. Though PW6 has denied the suggestion so offered, she has specifically stated, in her cross-examination, that she does not know whether any police person was present at the time, when she recorded the confessional statement of the accused. This apart, when the accused was produced on the following day of the occurrence, i.e., on 31.10.2006, at about 11 am, the accused was barely given 3 1/2 hours time for reflection. Coupled with this fact, when we notice that PW6 could not exclude the possibility of police personnel being present, when she was recording the confessional statement of the accused-appellant, we find it highly unsafe to hold that the confessional statement made by the accused-appellant was voluntary. Coupled with this fact, when we notice that PW6 could not exclude the possibility of police personnel being present, when she was recording the confessional statement of the accused-appellant, we find it highly unsafe to hold that the confessional statement made by the accused-appellant was voluntary. The reference made, in this regard, by the learned amicus curiae to the case of Sarwan Singh Rattan Singh vs. State of Punjab, AIR 1957 SC 637 is not wholly irrelevant inasmuch as the Supreme Court, in Sarwan Singh Rattan Singh (supra), has clearly observed that when an accused person is produced before Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear is to send the accused to jail custody and give him adequate time to consider whether he should make a confession at all. It would, naturally, be difficult to lay down any hard and fast rule as to the period of time, which should be allowed to an accused person in a given case. However, speaking generally, it would be, as observed in Sarwan Singh Rattan Singh (supra), reasonable to insist upon giving an accused person, at least, 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded. In our opinion, in the circumstances of the present case, it is impossible to accept the view that enough time was given to the accused-appellant to think over the question as to whether he should or should not make confession. 13. What logically emerges from the above discussion is that the extra-judicial confession, made by the accused-appellant, cannot be treated as a consciously made confession and as far as his judicial confession is concerned, the same cannot be confidently held to be a confession made voluntarily. 14. In the circumstances indicated above, the learned trial Court ought not to have relied upon either on the extra-judicial confession or on the judicial confession of the accused-appellant. 15. 14. In the circumstances indicated above, the learned trial Court ought not to have relied upon either on the extra-judicial confession or on the judicial confession of the accused-appellant. 15. Situated thus, it is clear that the accused-appellant, in the face of the fact that the extrajudicial confession and the judicial confession were not safe to rely upon, could not have been convicted. Consequently, the accused-appellant ought to have been accorded, at least, benefit of doubt and acquitted. 16. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the consequential sentence are hereby set aside. We direct that the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case. 17. With the above observations and directions, this appeal shall stand disposed of. 18. Send back the LCR. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for the assistance rendered by her.