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2012 DIGILAW 915 (GAU)

Basanta Basumatary v. State of Assam

2012-08-01

AMITAVA ROY, PRASANTA KUMAR SAIKIA

body2012
JUDGMENT Amitava Roy, J. 1. The appellants, in jail, stand convicted by the judgment and order dated 23.03.2007 passed by the learned Sessions Judge, Sonitpur at Tezpur in Sessions Case No.214/99 under Section 302/381/201/34 of the Indian Penal Code (hereinafter for short referred to as the Code), whereby, they have been sentenced to suffer imprisonment for life etc. Being highly dissatisfied with and aggrieved by the judicial determination so made, they are in appeal for redress. We have heard Mr. Rajesh Adhikary, learned Amicus Curiae for the appellants and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam for the respondent-State. 2. On a FIR lodged on 03.03.99 by Dr. Manohar Das of Kalabari State Dispensary, P.S. Gohpur with the Officer-in-Charge, Hawajan Police Out Post disclosing the homicidal death of Dr. Munindra Dutta and his wife Manju Dutta (Mudai), eventually, Gohopur P.S. Case No.34/99 was registered U/s. 302/201/34 of IPC. Prior thereto, the Hawajan Police Out Post registered the information vide G.D. Entry No.41 dated 03.03.99. The FIR amongst others disclosed that the bodies of the deceased had been recovered from a pit of a kutcha latrine located behind the Kalabari State Dispensary and that it was suspected that they were done away with by their domestic help Shri Basanta Basumatary and another person belonging to Boro community. It was mentioned in the FIR as well that the deceased persons had been missing from there Govt. residential quarter of the State Dispensary on and from 23.02.99. That the appellant No.1 and his companion were also not traceable on and from that date i.e. 23.02.99 was also mentioned in the FIR. On the conclusion of the investigation, the police submitted a charge-sheet against the appellants and one Smt. Rangali Kachari. They were eventually charged by the learned trial Court U/s. 302/381/201/34 of the Indian Penal Code, to which they pleaded "not guilty". The prosecution examined 15 witnesses including the doctor and the Investigating Officer. The learned Judicial Magistrate, who according to the prosecution had recorded the confessional statement of the appellants U/s.164 Cr.P.C. was also examined. The statements of the accused persons were recorded U/s.313 Cr.P.C. They, however adduced no evidence in defence. Whereas, by the impugned judgment and order the accused-appellants had been convicted as above, the co-accused Smt. Rangali Kachari was acquitted. 3. The statements of the accused persons were recorded U/s.313 Cr.P.C. They, however adduced no evidence in defence. Whereas, by the impugned judgment and order the accused-appellants had been convicted as above, the co-accused Smt. Rangali Kachari was acquitted. 3. Before adverting to the rival submissions, it would be appropriate to undertake a brief survey of the evidence on record. PW-1 Shri Padma Dutta is the elder brother of the deceased Dr. Munindra Dutta. He stated on oath that the accused Smt. Rangali Kachari was the first wife of his deceased brother. He identified the accused-appellants to be the domestic helps of the deceased and that they used to reside in the same quarter till the time of the incident. According to this witness, Shri Parama Mudoi, the father of Smt. Manju Mudoi (deceased) along with another person had met him (the witness) at Gohopur H.S. School on 25.02.99 and in course of the discussion, he (Parama Mudoi) had disclosed that the deceased persons were absent from the quarter and that on being enquired he confessed that he was not aware of their whereabouts. This witness further stated that on being contacted, the accused Smt. Rangali Kachari expressed ignorance about the whereabouts of the deceased persons. He testified that on 03.03.99 one boy from Difalu Satra informed him that the dead body of his elder brother and his sister-in-law had been recovered. He then, went to the spot, whereafter, police arrived. This witness affirmed that after a few days the police also arrested the accused-appellants. 4. PW-2 Shri Prabin Bora identified the accused persons. This witness stated that the deceased Dr. Munindra Dutta was In-charge of Kalabari Primary Health Centre and he as a Grade-IV employee of the institution was acquainted with him (deceased). The witness stated that the accused Smt. Rangali Daimari was the wife of the deceased Dr. Munindra Kr. Dutta and that she then had been serving as a staff Nurse at Panchmile PHC under Tezpur Police Station. He also confirmed the second marriage of the deceased Dr. Munindra Dutta. 5. PW-3 Shri Lakhi Prasad Saikia, apart from identifying the accused persons on the dock testified that the deceased Dr. Dutta used to sit in his Pharmacy at Kalabari. He stated that in the year 1999, after having come to learn that Dr. Munindra Kr. He also confirmed the second marriage of the deceased Dr. Munindra Dutta. 5. PW-3 Shri Lakhi Prasad Saikia, apart from identifying the accused persons on the dock testified that the deceased Dr. Dutta used to sit in his Pharmacy at Kalabari. He stated that in the year 1999, after having come to learn that Dr. Munindra Kr. Dutta and his wife had been murdered and that their dead bodies had been recovered in a pit, he visited the Hawajan Out Post, whereafter, his statement was recorded. 6. PW-4 Shri Deben Borman, who at the relevant time was serving in Barman Hotel deposed on oath that in the year, 1999 two boys had stayed in his hotel as boarders and that after 2/3 days, they left with their bag and baggage in a rickshaw. 7. PW-5 Shri Parama Mudoi is the father-in-law of the deceased of Dr. Munindra Dutta and the father of Smt. Manju Duttta @ Mudoi. He stated on oath that after the marriage, the accused persons used to fetch milk from his house and that two days prior to the occurrence, the accused-appellants had visited his house to inform that the couple had gone to Guwahati and, therefore, milk would not be required during their absence. The witness stated to have noticed that accused-appellant No.1 Basanta had gone to his house with the motor bike of his son-in-law and the same having roused his suspicion, he made necessary inquiries and could come to learn that there was none in the quarter where his daughter used to reside with her husband. It was about a week thereafter, according to this witness, that he was informed that the dead bodies of his daughter and son-in-law had been recovered from a pit of the septic tank of their quarter. He identified the accused-appellants to be the persons who had visited his house on his son-in-law's motor bike. 8. PW-6 Shri Jatin Baruah at the relevant point of time was serving as Pharmacist in the Kalabari State Dispensary. He stated on oath that Dr. Munindra Kr. Dutta, the deceased, had gone missing from the evening of 23.02.1999 and that he did not return to the hospital thereafter. 8. PW-6 Shri Jatin Baruah at the relevant point of time was serving as Pharmacist in the Kalabari State Dispensary. He stated on oath that Dr. Munindra Kr. Dutta, the deceased, had gone missing from the evening of 23.02.1999 and that he did not return to the hospital thereafter. This witness further stated that after a few days, some fishermen on being drawn by some obnoxious smell from an abandoned pit detected half decomposed bodies of the deceased persons, whereafter, these were retrieved therefrom and were identified to be those of Dr. Munindra Kr. Dutta and his second wife Smt. Manju Dutta (Mudai). This witness was present at the time when inquest on the dead bodies was made by the police and he proved the inquest report Ext-1. 9. PW-7 Shri K.N. Ahmed, was at the relevant point of time Judicial Magistrate, 1st Class at Biswanath Chariali. He stated on oath to have recorded the confessional statement of the accused-appellant U/s. 164 Cr.P.C. He testified that these persons were produced before him for the aforementioned purpose on 11.03.1999 at 12.30 P.M. As they were brought from the police custody, he administered the necessary statutory warnings to them amongst others to the effect that he was not a police officer and that they were not bound to make any self-inculpatory statements, which might be used against them. According to this witness he granted 3 hours of reflection time to these persons, in course whereof, they were made to wait in a single room adjacent to his chamber under the care and custody of the Court peon Shri Nirmal Ch. Terang. The witness stated that during this time he had ensured that police personnel were away from these persons so as to allow them to have the necessary privacy for reflection. He stated that eventually the confessional statements were recorded at 3.40 P.M. in course whereof, both the appellants admitted their role in committing the twin murder and confessed their guilt. 10. This witness was categorical in stating that inspite of his repeated cautions, the appellants were found to be unhesitant in making their statements and that on examining them personally, he did not notice any sign of injury on them. That the confessional statements were recorded in the prescribed form was affirmed by this witness. He also stated to have made six searching questions to them. That the confessional statements were recorded in the prescribed form was affirmed by this witness. He also stated to have made six searching questions to them. According to him, all the necessary formalities prescribed by law in this regard were complied with and he was satisfied that the self-inculpatory statements made by the accused-persons were voluntary and true. He proved these two statements as Ext-2 & 3 together with the signatures made by him as well as by the appellants. In cross-examination, this witness stated with reference to the case record of G.R. Case No.100/99, Ext-4 that the accused-appellants before being produced before him were in police custody for a period of seven days. Though, he admitted to have omitted to mention the time at which he had put his signature on Ext-2, he denied the suggestion that three hours time for reflection had not been provided to the accused-appellants. He admitted about the existence of a common passage by the side of the chamber of the Sub-Divisional Judicial Magistrate and the Court of the Prosecuting Inspector. 11. PW-8 Shri Robin Dutta, the brother of the deceased Dr. Munindra Dutta deposed about the seizure of an iron pipe, one iron rod, one bed-sheet and one batten recovered by the police along with the dead bodies. He proved the seizure vide the seizure list Ext-5 with his signature Ext-5(1) thereon. 12. PW-9 Shri Banesswar Kalita is also the seizure witness of the aforementioned items. He proved his signature Ext5(2) and the seizure list. This witness, who was not one cited by the police in the charge sheet however disclosed on oath that the accused-appellants had stated that they carried the dead body of Dr. Munindra Dutta on the batten seized for concealing the same in the pit of the latrine. His statement to this effect was thus objected to on behalf of the defence. 13. PW-10 Shri Biren Das is a witness to the seizure of the motor cycle of the deceased Dr. Munindra Dutta from his shed, the bike according to him having been left thereat by them (the appellants). He proved the seizure list Ext-6 with the signature thereon, Ext-6(1). 14. PW-11 Dr. Sushil Kumar Saikia had performed the post-mortem examination on the dead bodies. On oath he recited the findings, in course of such examination. Munindra Dutta from his shed, the bike according to him having been left thereat by them (the appellants). He proved the seizure list Ext-6 with the signature thereon, Ext-6(1). 14. PW-11 Dr. Sushil Kumar Saikia had performed the post-mortem examination on the dead bodies. On oath he recited the findings, in course of such examination. For immediate reference, the relevant excerpt of his testimony to the above effect is quoted hereunder:- On 4-3-99 I was posted at Behali P.H.C. as SD.M & HO. On that day I performed post-mortem examination on the dead body of Smti Manju Dutta, female, aged about 20 years, on being identified by C/46 Ranjan Das and relative Padma dutta at 12-05 P.M. and found as follows : EXTERNAL APPEARANCE: A decomposed body with matured maggots present over the body. Scalp, face, eyes, neck all decomposed completely upto the bone. Over the body three rounded penetrating wounds present at right upper chest - each about 1 cm. In diameter and deep upto chest cavity. Other organs were found decomposed. The injuries were ante-mortem in nature. OPINION : Death was due to shock as a result of injuries sustained. On the same day I performed Post-Mortem on the dead body of Dr. Munindra Dutta, aged about 44 years, on being identified by C/45 Ranjan Das and relative of the deceased Padma Dutta and found as follows :- EXTERNAL APPEARANCE : A decomposed body with mature maggots all over the body. Scalp, face, neck and part of legs were decomposed upto the bond. Rounded penetrating wounds in 3 numbers on right side and 1 (one) at left side of chest present - each about 1 cm in diameter. Sturnum fractured at middle-third. CRANIUM AND SPINAL CANEL : Fracture of left side of parietal bone temporal bone, anteroposteriorly present. Over the chest, fracture of right 4th and 5th ribs with sternum at mid-third. All the injuries were ante-mortem in nature. OPINION : Death was due to shock and haemorrhage as a result of the injuries sustained. He proved the post-mortem reports as Ext-6 and 7 with the signatures thereon. He defined the injuries found on the dead body to be ante-mortem in nature. 15. All the injuries were ante-mortem in nature. OPINION : Death was due to shock and haemorrhage as a result of the injuries sustained. He proved the post-mortem reports as Ext-6 and 7 with the signatures thereon. He defined the injuries found on the dead body to be ante-mortem in nature. 15. PW-12 Shri Kalyan who at the relevant point of time was posted at Circle Officer at Gohopur stated to have conducted the inquest on the dead bodies, on completion whereof, he had drawn the inquest report, Ext-1. He proved his signature thereon as Ext1(1) and Ext-9(1) pertaining to Dr. Munindra Dutta and Smt. Manju Dutta @ Mudai and also that of the other witnesses thereon. 16. PW-13 Dr. Monohar Das, owned the FIR Ext-10 and claimed to have written the same by himself stating that he on the date of the filing of the document was posted as Medical Officer at Kalabari State Dispensary. This witness affirmed that at the time of the occurrence the deceased Dr. Munindra Dutta used to stay in the compound of the State Health Centre along with his newly married wife Smt. Manju Mudai. This witness stated that the couple had become untraceable from their quarter on and from 23.02.99 and that ultimately their dead bodies were found in an old abandoned kuctha latrine (pit) behind their quarter. He disclosed that the complicity of the accused-appellant Basanta Basumatary was suspected as he along with the other boy who also had been the inmate of the said quarter were found to be missing on and from the same date i.e. 23.02.99. 17. PW-14 Shri Mahesh Ch. Bora is one of the Investigating Officers of the case. He stated that on 05.03.99, he was posted at Tezpur Police Station and that in course of the investigation undertaken by him he arrested the accused-appellants from Tezpur town. He also proved the seizure of the motorcycle along with some other belongings of the deceased Ext-6, on which he proved his signature, Ext-6(2). 18. PW-15, Shri Hemo Challeng was the In-charge of the Hawajan Police Out Post on the date on which the FIR was filed. He proved the FIR Ext-10 as well as the seizure of the aforementioned articles vide Ext-5. He also proved and identified the same as follows: M.Ext-1 Wooden plank. 18. PW-15, Shri Hemo Challeng was the In-charge of the Hawajan Police Out Post on the date on which the FIR was filed. He proved the FIR Ext-10 as well as the seizure of the aforementioned articles vide Ext-5. He also proved and identified the same as follows: M.Ext-1 Wooden plank. M.Ext-2 Iron pipe , M.Ext 3(1) & 3(2) Two pieces of iron rods He proved the inquest reports Ext-1 & Ext-9, G.D. registrar of Hawajan Police Out Post, Ext-13 and also the charge sheet Ext-14. In course of his examination-in-chief, this witness amongst others stated that the seizure vide Ext-5 had been made by him on being shown by the accused-appellants. In cross-examination he however denied the suggestions to the contrary. 19. The Court witness Smt. Aruna Mudoi, mother-in-law of the deceased Dr. Munindra Dutta stated on oath that the accused-appellants used to stay with the couple in the same quarter. Though she conceded of not knowing the identity of the murderer, she stated that in course of the conversation with the appellants, they had informed her that her daughter and her son-in-law were not at home. She also stated to have noticed some scratch marks on the face and hand of appellant Basanta. On being asked of the cause therefor, according to the witness the accused-appellants kept mum with their heads down and feebly endeavoured to explain that this had been suffered in course of quarrel between them on sleeping. The accused-appellants on being confronted with their confessional statements in course of their examination U/s.313 Cr.P.c. attributed assault/torture by the police the reason therefor. They, thus, retracted from their confession. 20. In course of the arguments, on 14.02.2012, it had been urged on behalf of the accused-appellants that they were juveniles at the time of the alleged commission of offence. Responding to this plea, this Court, by its order of the even date, had required the learned District & Sessions Judge, Sonitpur, Tezpur to cause an inquiry to be made in this regard. The learned District & Sessions Judge, Sonitpur, Tezpur, by his report dated 11.06.2012 has returned a finding against the plea of Juvenility. In that view of the matter, the accused-appellants are not juvenile. 21. The learned District & Sessions Judge, Sonitpur, Tezpur, by his report dated 11.06.2012 has returned a finding against the plea of Juvenility. In that view of the matter, the accused-appellants are not juvenile. 21. The learned Amicus Curiae has argued that apart from the absence of any eye-witness in support of the charges, the purported circumstantial evidence sought to be relied upon by the prosecution is wholly inadequate and does not comply with the imperative requisites laid down in law and, thus, the conviction of the accused-appellant is, per se, illegal and is liable to be set aside. According to Mr. Adhikary, the confessional statement Ext. Nos. 2 & 3, on which the impugned judgment and order is founded is non est in law for apparent non-compliance of the prescriptions of section 164 Cr.P.C. The learned Amicus Curiae has argued that as the records would disclose that the accused-appellants had been produced before the learned recording Magistrate after seven days of police custody and that adequate time for reflection had not been accorded, the process was obviously vitiated. Mr. Adhikary has pleaded that no precaution as required by law was also taken by the Magistrate to ensure that the accused-appellant is free from any undue influence exerted by the police rendering the so called confessional statements made by them invalid in law. Further, no memorandum as required under section 164 (4) of the Cr.P.C. having been recorded by the learned Magistrate, the confessional statement would not have been acted upon to base the conviction of the accused-appellant. Apart from the fact that the co-accused, Smti. Rangali Kachari has been acquitted on the same set of evidence, in absence of any proved motive of the accused-appellant, they could not have been convicted, he urged. That the accused-appellants since their conviction in the year 1999 are in custody has also been pointed out to contend that, at this distant point of time, they are entitled to be set at liberty. Mr. Mazumdar, as against this, has maintained that the evidence of the prosecution witness taken as a whole amply proved the charge against the accused-appellant beyond all reasonable doubt and, therefore, no interference with the impugned judgment and order is warranted. According to the learned Addl. Mr. Mazumdar, as against this, has maintained that the evidence of the prosecution witness taken as a whole amply proved the charge against the accused-appellant beyond all reasonable doubt and, therefore, no interference with the impugned judgment and order is warranted. According to the learned Addl. Public Prosecutor, Assam, the fact that the accused-appellants were domestic servants of the deceased staying with them in the same house and that they too had gone missing immediately after the incident, was a sufficient circumstantial evidence indicating their guilt. Mr. Mazumdar has submitted that this incriminating circumstance when considered along with the factum of detection of the dead bodies and the seizure of the weapon of assault, at their instance, leaves no manner of doubt of the accused-appellants' complicity in the offence and, therefore, their conviction and sentence is unassailable in law. 22. We have extended our anxious consideration to the materials on record and the arguments advanced. Some proven facts ought to be noticed at the outset. The deceased were husband and wife residing in their official quarter at the time of their death. The accused-appellants were their domestic helps. The co-accused, Smti. Rangali Kachari was the estranged wife of the deceased, Dr. Munindra Dutta. The whereabouts of the deceased were unknown from 23.02.1999 till their bodies were recovered from a pit of a kutcha latrine on 03.03.1999. The police sprang into action thereafter and, on the FIR filed about the incident on the very same date, initiated the investigation and on the culmination thereof charge sheeted the accused-appellants and Smti. Rangali Kachari. There is, admittedly, no eyewitness to the incident. The accused-appellants were also untraceable since 23.02.1999 till they were arrested on 05.03.1999. They also produced before the recording Magistrate PW 7 on 11.03.1999 at about 12.30 p.m. and their confessional statements were recorded at 3.40 p.m. on the very same date. 23. In course of their examination under section 164 Cr.P.C. by PW 7, the accused-appellants noticeably produced a strikingly identical version. They admitted that on the date of the incident, the deceased, Manzu Dutta @ Mudai, the wife of the deceased, Dr. Munindra Dutta, while was alone in the house, the accused-appellant, Shri Basanta Basumatary throttled her to death and kept the body concealed in the bath room. Dr. They admitted that on the date of the incident, the deceased, Manzu Dutta @ Mudai, the wife of the deceased, Dr. Munindra Dutta, while was alone in the house, the accused-appellant, Shri Basanta Basumatary throttled her to death and kept the body concealed in the bath room. Dr. Munindra Dutta having arrived later in the evening at 8.00 p.m., the accused-appellant, Basanta Basumatary hit him on the back of his head with a 3/4 feet long iron rod on which he fell down and, thereafter, the accused-appellant Biraj Boro further assaulted him with iron rod on his head, as a result whereof, the injured died. The accused-appellants thereafter dragged the bodies one after other by tying them to a wooden batten and threw those in the pit of a latrine located backside of the official quarter. They, thereafter, collected the wearing apparels of the deceased, Dr. Munindra Dutta in a suit case and left the place with his (deceased) motorcycle. They admitted their arrest by the police subsequent thereto and also the seizure of the iron rod at their instance. 24. We have closely perused the confessional statements recorded in the prescribed form stage wise and are satisfied that the learned recording Magistrate, PW 7, had taken all necessary precautions prescribed by law in connection therewith. Not only, the proceedings disclose that necessary searching questions were put by the recording Magistrate to the accused-appellants indicating to them that he (Magistrate) was not a policeman and that they are at liberty to refuse to confess their guilt, it was emphasized again and again to them that any incriminating statement made by them would be used as evidence in support of the charge resulting in severe detrimental consequences. Though, a severe criticism of the confessional statements has been made on the ground, amongst others, of insufficient time for reflection, want of the required endeavours to ensure that the accused-appellants were free from the undue influence of the police and failure to record the memorandum prescribed by 164 (4) of the Cr.P.C., on a detailed scrutiny of the proceedings as a whole, we are of the view that those cannot be construed to be factors vitiating the same. In our considered opinion, therefore, the confessional statements are voluntary, truthful and valid in law and can be acted upon for conviction of the accused-appellants. 25. The evidence of PW 11, Dr. In our considered opinion, therefore, the confessional statements are voluntary, truthful and valid in law and can be acted upon for conviction of the accused-appellants. 25. The evidence of PW 11, Dr. Sushil Kumar Saikia, who had performed the post mortem examination on the dead bodies, deposed amongst others of fracture of the left side of parietal bone, temporal bone located anterior-posteriorily. Both the bodies also exhibited penetrating wounds on the chest and all the injuries were certified by the doctor to be antemortem in nature leading to the death of the persons concerned. The confessional statements of the accused-appellant when read in juxtaposition to the findings in the post mortem examination, we are constrained to sustain the plea of mutual compatibility thereof as raised on behalf of the prosecution. In other words, the injuries found on the dead bodies accord with those that ought to have resulted from the manner of assaults unleashed on them by the accused-appellants as is discernible from their confessional statements. 26. PW 8, Shri Robin Dutta, PW 10 Shri Biren Das and PW 14, S.I. Sri Mahesh Ch. Bora have proved the seizure of the weapon of assault. The Investigating Officer, PW 15, S.I. Shri Hemo Chelleng also testified about the role of the accused-appellants in leading the police to such seizure. It is noticeable that the seizure of the motorcycle, as referred to hereinabove, had been made from the house of the father of the accused-appellant, Sri Basanta Basumatary. 27. On a cumulative consideration of all above, we are constrained to hold that the incriminating circumstances available against the accused-appellants also sufficiently support the charge levelled against them. The confessional statements made by them, according to us, are true and voluntary and have been validly recorded in law. In this view of the matter, the materials on record, as a whole, do prove the charge against the accused-appellant beyond all reasonable doubt. Significantly, the co-accused, Smti. Rangali Kachari had been acquitted on the benefit of doubt. The evidence as recited hereinabove, according to us, also does not ascribe any proactive role of her part in the incident. This plea on behalf of the defence, therefore, is of no avail. 28. In view of the determination made hereinabove, we are of the unhesitant opinion that the appeal lacks in merit and is, accordingly, dismissed. The evidence as recited hereinabove, according to us, also does not ascribe any proactive role of her part in the incident. This plea on behalf of the defence, therefore, is of no avail. 28. In view of the determination made hereinabove, we are of the unhesitant opinion that the appeal lacks in merit and is, accordingly, dismissed. Before we part, we wish to record herein our appreciation for the assistance rendered by Mr. R Adhikary as the learned Amicus Curiae and direct payment of his professional fees, which we quantify as Rs.5000/-. The State of Assam would release the amount forthwith. Appeal dismissed.