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2012 DIGILAW 576 (GAU)

Rajen Robidas v. State of Assam

2012-05-09

AMITAVA ROY, PRASANTA KUMAR SAIKIA

body2012
JUDGMENT Amitava Roy, J 1. The appellant is aggrieved by his conviction under Section 302 of the Indian Penal Code (for short, hereinafter referred to as 'the IPC') vide judgment and order dated 2.5.2006 rendered by the learned Sessions Judge, Golaghat in Sessions Case No. 22/05 whereby he has been awarded the sentence of imprisonment for life and fine of Rs.5000/-in default, rigorous imprisonment for further one year. We have heard Mrs. S. Kejriwal, learned Amicus Curiae for the appellant and Mr. KA Mazumdar, learned Addl. Public Prosecutor, Assam for the respondent State. 2. On receipt of the FIR lodged by one Bhaity Bhuyan on 10.12.2004 with the Officer-in-Charge, Dhekiyal Police Out Post alleging that at about 10 p.m. on the previous day i.e. 9.10.2004 the accused/appellant had killed the deceased Mahendra Bhuyan at his (accused/appellant) house, Golaghat P.S. Case No. 583/04 under Section 302 IPC was registered. On the completion of the investigation chargesheet was laid against the accused/appellant and he was made to stand trial as he pleaded innocencex against the charge framed under the aforesaid provision of the IPC. 3. At the trial the prosecution examined seven witnesses including the doctor who had performed the post mortem examination as well as the Investigating Officer. The statement of the accused/appellant was recorded under Section 313 Cr.P.C. thereafter. He, however, declined to adduce any evidence in defence. The impugned verdict followed. 4. It would be apt before adverting to the rival submissions to deal with the evidence on record. P.W.1, Bhaity Bhuyan, the informant deposed that in the evening of the date of the incident the deceased, his paternal uncle had gone to the house of the accused/appellant to attend a 'Sudhi' (Shradha) ceremony thereat and subsequent thereto at about 10 p.m. in the same night he (accused/appellant) came and informed him that he had cut the deceased. According to this witness, on receiving the information he went to the house of the accused/appellant and found the deceased lying on the verandah. He thereafter lodged the ejahar, Exhibit-1. In his cross-examination, this witness disclosed that his father and the deceased were brothers and that the latter had in the past killed his father and his elder brother Gohain as well as the father of one Bolo. That this witness feared the deceased because of these antecedents was also stated in the cross-examination. 5. In his cross-examination, this witness disclosed that his father and the deceased were brothers and that the latter had in the past killed his father and his elder brother Gohain as well as the father of one Bolo. That this witness feared the deceased because of these antecedents was also stated in the cross-examination. 5. P.W.2, Bhai Bhuyan, cousin brother of the deceased testified in the similar lines as P.W.1. He, however, proved the inquest report, Exhibit-2 and the seizure list, Exhibit-3 but stated that the police while preparing this document did not show him the articles seized. In cross-examination, this witness disclosed that the deceased at the time of attending the Shradha ceremony in the house of the accused/appellant was in an intoxicated state. 6. The evidence of P.W.3, Mridul Rabidas and P.W.4, Bikash Bhuyan is not of much significance as none of them is an eye witness to the incident. 7. P.W.5, Dr. SG Goswami who had performed the post mortem examination in course of his deposition enumerated the following injuries stated to have been found by him on the dead body: 1. Sharp cut wound over head over the occipital bone 4" x 1" x ½". Cutting underlying occipital bone and tearing membrane and brain matter. 2. Sharp cut over the left side of forehead 6" x ½" x 1" cutting underlying frontal bone injuring brain membrane and accumulate blood outside brain membrane. 3. Sharp cut over left side of mandible 2" x ½" x 1" cutting underlying mandible and muscle and over structures. 4. Sharp cut wound over left wrist joint ½" x ½" x ½' cutting underlying bone and muscles. 5. Cut wound over shoulder joint 1" x ½" x ½" cutting underlying bone and muscles. The injuries are ante mortem in nature. The cause of death is due to shock and haemorrhage as a result of the injures sustained. This witness while proving the post mortem report, Exhibit-4, opined that the injuries were ante mortem in nature and that the death was as a result of shock and haemorrhage ensuing therefrom. 8. P.W.6, Nityananda Talukdar at the relevant time was the Judicial Magistrate, Golaghat. He deposed to have recorded the confessional statement of the accused/appellant under Section 164 Cr. This witness while proving the post mortem report, Exhibit-4, opined that the injuries were ante mortem in nature and that the death was as a result of shock and haemorrhage ensuing therefrom. 8. P.W.6, Nityananda Talukdar at the relevant time was the Judicial Magistrate, Golaghat. He deposed to have recorded the confessional statement of the accused/appellant under Section 164 Cr. P.C. According to this witness, he questioned the accused/appellant in details and on being satisfied that he wished to make his statement voluntarily, he recorded the same. He proved the confessional statement, Exhibit-5 with the signature, amongst others, of the accused/appellant thereon. 9. P.W.7, Jatin Dadhora, the Investigating Officer deposed about the steps taken by him in course thereof and identified the 'dao' (Mat. Exhibit-9) as the weapon of assault and seized vide Exhibit-3. In cross-examination, he, however, conceded that he had not sent the 'dao' for chemical examination. He added further that P.W.2, Bhai Bhuyan had not stated before him that the accused/appellant had disclosed to him (P.W.2) that he had cut the deceased. 10. In course of his examination under Section 313 Cr.P.C. the accused/appellant answered to the following question as hereinbelow: Q. No. 1 PW No. 1 Sri Bhaity Bhuyan has stated in evidence that about 4(four) months ago (one day) his elder brother Mahendra Bhuyan went to your house to attend 'Sudhi', that at 10 P.M. you came to his house and informed him that you had cut Mahendra Bhuyan and that he found Mahenra Bhuyan's dead body lying in your verandah. What do you say? Ans.: It is true. 11. The learned Amicus Curiae has assiduously argued that the prosecution having failed to prove that the accused/appellant was absolutely free from any element of undue influence and coercion extended/imposed by the police during his judicial custody from 10.12.2004 to 13.12.2004, the so called confessional statement was inadmissible in law and ought not to be acted upon. The learned Magistrate having failed to ascertain the voluntary state of mind of the accused/appellant, the confessional statement is non-est in law, she urged. The learned Amicus Curiae in addition has persistently drawn our attention to the contradiction regarding the time of information about the incident by the accused/appellant to the informant (P.W.1) and P.W.2, Bhai Bhuyan. The learned Magistrate having failed to ascertain the voluntary state of mind of the accused/appellant, the confessional statement is non-est in law, she urged. The learned Amicus Curiae in addition has persistently drawn our attention to the contradiction regarding the time of information about the incident by the accused/appellant to the informant (P.W.1) and P.W.2, Bhai Bhuyan. According to her, this inconsistency has rendered the prosecution case unworthy of any credit and, therefore, the learned Trial Court with due regard to the totality of the circumstances ought to have acquitted the accused/appellant of the charge. The learned Amicus Curiae has urged further that the contents of the FIR and the evidence of P.W. 1 and 2 if read in conjunction with the confessional statement of the accused/appellant would render the prosecution case wholly incredible and, thus, interference with the impugned judgment and order is necessary in the interest of justice. It is wholly unbelievable, according to her, that the accused/appellant after having committed the offence as charged would have moved freely and in the open with a 'dao' in hand without being noticed or apprehended by anyone. Referring to the relevant excerpts of the impugned judgment and order, the learned Amicus Curiae has insisted that no circumstantial evidence worth the name exists so as to unerringly point towards the guilt of the accused/appellant and in absence of any motive implicating him therewith, he is entitled to a clear acquittal. Without prejudice to this, the learned Amicus Curiae has argued that even assuming that the confessional statement is construed to be voluntary and true, it is apparent therefrom that the accused/appellant had acted in exercise of his right of private defence and that, therefore, he cannot be held to be guilty of any offence. To reinforce her arguments, the learned Amicus Curiae has placed reliance on a decision rendered by a Division Bench of this Court in Abdul Kasem vs. State of Assam, (2002) 1 GLR 1. 12. Per contra, Mr. Mazumdar has contended that a cumulative reading of the evidence of P.W.1 and 2 with the findings in the post mortem examination as well as the confessional statement of the accused/appellant leaves no manner of doubt that he (accused/appellant) is the assailant and that the deceased having succumbed to the injuries inflicted by him, no interference with the impugned judgment and order is warranted. 13. 13. A bare perusal of the FIR dated 10.12.2004 lodged on the next date of the incident i.e. 9.12.2004 and the testimony of P.W.1 and 2 leaves no manner of doubt that the accused/appellant from the very beginning had been identified to be the assailant. The materials on record overwhelmingly demonstrate that the incident had occurred in the house of the accused/appellant and that the dead body of the deceased with bleeding injuries was recovered therefrom. Noticeably, as has been rightly pointed out by the learned Amicus Curiae, there is an inconsistency vis-à-vis the time when according to the prosecution the factum of the incident and the assault had been communicated by the accused/appellant to the informant Bhaity Bhuyan (P.W.1) and Bhai Bhuyan (P.W.2). 14. A plain reading of the evidence of P.W.6, Judicial Magistrate who had recorded the confessional statement and the proceedings in connection therewith, according to us, does not admit of any conclusion or inference that the mandatory legal prescriptions to be complied in connection therewith had been disregarded. The evidence of this witness and the recordings reveal that the accused/appellant had been in judicial custody from 10.12.2004 and was produced for the first time before P.W.6 on that date, whereafter, his confessional statement was recorded on 13.12.2004. Certain questions were put to the accused/appellant, as the proceedings of the confessional statement would disclose, so as to make him understand that P.W.6 was not an officer of the police and that he (accused/appellant) was not bound to confess the guilt. According to us, the voluntariness of the accused/appellant, amongst others, is clearly exhibited by the following questions and the answers thereto: Q. No. 6: Why do you want to confess ? Ans.: I want to tell the truth. ... Q. No. 8: I will not sent you to police custody even if you do not confess. Police shall not interrogate you. Even then why do you want to confess ? Ans.: I want to confess to tell the truth. 15. The text of the confessional statement which is of utmost significance is quoted hereinbelow: On Thursday, dtd. 9/12/04 I was playing with my two and half year old grand son. By that time my co-villager Mahendra Bhuyan entered my house. He had a bag in his hand. It contained 3/4 nos. of papaya and a 'Khukri'. 15. The text of the confessional statement which is of utmost significance is quoted hereinbelow: On Thursday, dtd. 9/12/04 I was playing with my two and half year old grand son. By that time my co-villager Mahendra Bhuyan entered my house. He had a bag in his hand. It contained 3/4 nos. of papaya and a 'Khukri'. Taking the 'Khukri' out from the bag when Mahendra Bhuyan attempted to hit me I hit him in his hand with a lathi. At this the khukri flung out from his hand. Thereafter taking that khukri I hacked him right and left in his hand and face. As a result Mahendra Bhuyan died. Covering the dead body with a cloth I came out my house taking the khukri along with me and spent the night in Padumoni temple. In the morning I boarded a bus and appeared at Golaghat police station. I handed the khukri over to the P.S. and told the police about Mahendra Bhuyan's murder. Police produced me in the court that very day i.e. on 10.12.04. 16. It would be obvious from the above extract that the accused/appellant without any reservation had admitted to have assaulted the deceased with a 'khukri' which the latter had carried in a bag to his (accused/appellant) house. According to the accused/appellant, the deceased came to his house with a bag containing 3/4 papayas and a 'khukri', whereafter, he (deceased) took out the 'khukri' from the bag and attempted to assault him (accused/appellant). At this the accused/appellant hit the deceased on the hand with a 'lathi' as a result whereof the 'khukri' fell down from the hand of the deceased, whereafter, he (accused/appellant) picked up the same and assaulted the deceased right and left therewith, thus, killing him. According to the accused/appellant, as would be evident from the confessional statement, he thereafter covered the dead body with a cloth and came out of the house with 'khukri', spent the night in Padumoni temple and in the next morning appeared at the Golaghat Police Station by boarding a bus. He also disclosed to have told the police that he had murdered the deceased. 17. He also disclosed to have told the police that he had murdered the deceased. 17. Though P.W.6 in his cross-examination stated that he did not remember as to how long the accused/appellant was kept in Court on that day and that he did not notice as to whether there were police personnel in the Court building or outside the Court, it is apparent from the proceedings of the confessional statement that he (accused/appellant) was produced from judicial custody before him on 13.12.2004 at 10.30 a.m. and was allowed sufficient time for reflection before the same (confessional statement) was recorded. The proceedings also disclose the satisfaction of the learned Magistrate that there was neither any police officer in Court nor in any place wherefrom the proceedings could be seen or heard. The plea of undue influence, therefore, does not appeal to us. We see no reason as well to doubt the truthfulness of the confessional statement of the accused/appellant which, therefore, in law can be acted upon to ascertain as to whether the same supports the charge levelled against him. 18. Noticeably, the accused/appellant in course of his examination under Section 313 Cr.P.C. had answered in the affirmative to the question No. 1 to the effect that P.W.1 had stated that his elder brother Mahendra Bhuyan (deceased) had gone to his house on the date of the incident and that at about 10 p.m. he (accused/appellant) had returned to inform him (P.W.1) that he (accused/appellant) had cut Mahendra Bhuyan and that he (P.W.1) had found the body of the deceased lying in his (accused/appellant) verandah. This response of the accused/appellant is also a piece of admissible evidence supporting his confessional statement recorded under Section 164 Cr.P.C. 19. On a conjoint reading of the evidence of the prosecution witnesses with the confessional statement made by the accused/appellant, we are, thus, of the unhesitant opinion that the prosecution case in hand is not one based wholly on circumstantial evidence and rather is chiefly founded on the confessional statement. The plea of want of motive, in our view, this is not any substance. 20. As has been propounded in Abdul Kasem (supra), motive is not always an important feature in a criminal prosecution where there is sufficient evidence on record but in a case where the evidence is doubtful and not worthy of credence, it has its role to play. 20. As has been propounded in Abdul Kasem (supra), motive is not always an important feature in a criminal prosecution where there is sufficient evidence on record but in a case where the evidence is doubtful and not worthy of credence, it has its role to play. The attendant facts and circumstances in our view render the element of motive inconsequential. 21. Having held that the confessional statement of the accused/appellant has been recorded validly and that the same is voluntary and true, we are of the view that the inescapable conclusion on the basis thereof is that the accused/appellant is the assailant of the deceased and that the latter had succumbed to the injuries suffered by the assaults made by the former. The post mortem report reveals five cut injuries on the dead body, three whereof are in the region of the head/forehead/left mandible. The accused/appellant, thus, had dealt multiple assaults on the deceased. Be that as it may, as the confessional statement as a whole has to be taken note of, the circumstances in which the assaults were made can by no means be ignored. To reiterate, the deceased had visited the house of the accused/appellant just before the incident with a bag carrying a 'khukri' which he took out to assault him (accused/appellant). The evidence of P.W.2 indicates that at the relevant point of time the deceased was drunk. The testimony of P.W.1 to the effect that the deceased had criminal antecedents has also remained unrefuted. According to this witness, though the deceased was his paternal uncle, because of his tainted past he remained in apprehension so much so that he used to avoid his company. It is not unlikely that at the time when the deceased had attempted to assault the accused/appellant with the 'khukri' in hand, the latter felt a desperate urge not only to thwart the same but also to effectively counter the attack so as to save himself from the wrath of a man who had committed multiple murders in the past. According to us, in that state of desperation and being over powered by the urge to defend his body he might have with the 'khukri' available to him assaulted the deceased more than once to ensure that he is maimed enough not to retaliate and it is likely that the latter died in the process. 22. According to us, in that state of desperation and being over powered by the urge to defend his body he might have with the 'khukri' available to him assaulted the deceased more than once to ensure that he is maimed enough not to retaliate and it is likely that the latter died in the process. 22. In the above view of the matter, having regard to the hard realities of life and the sudden provocation given by the deceased, we are inclined to hold that the accused/appellant in the facts and circumstances cannot be held to be guilty of the offence of murder under Section 302 IPC. Instead, according to us, the offence is one as contemplated under Section 304, Part-I of the IPC. The conviction of the accused/appellant is, thus, altered from one under Section 302 to one under Section 304, Part-I of the IPC. 23. On an overall consideration of the evidence as well as the circumstances narrated hereinabove, we consider it appropriate to award a sentence of imprisonment for seven years to the accused/appellant. The accused/appellant would also be liable to pay a fine of Rs.1000/-, in default whereof, he will have to suffer rigorous imprisonment for three months. 24. The appeal is, thus, partly allowed to the extent indicated hereinabove. 25. Needless to say, the period undergone as on date would stand adjusted with the sentence now awarded. If on such adjustment it is found that the accused/appellant has already served the sentence awarded by us, he should be released forthwith. Before we part, we record our appreciation for the assistance rendered by the learned Amicus Curiae and direct payment of her professional fees of Rs.5000/- to be paid by the respondent State forthwith.