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2013 DIGILAW 120 (GAU)

Kamal Hazarika v. State of Assam

2013-02-22

I.A.ANSARI, INDIRA SHAH

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 02.06.2010, passed, in Sessions Case No. 54 of 2008, by the learned Additional Sessions Judge (FTC), Biswanath Chariali, 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, further rigorous imprisonment for sixty days. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Accused Kamal Hazarika is brother of Ganesh Hazarika (PW 1), whose wife, Charu Hazarika, was killed, on 1.3.2007, at about 6.45 p.m. at the backyard of her house. At the time of occurrence, deceased Charu Hazarika's husband, Ganesh Hazarika (PW 1), was undergoing training, as a teacher, at Baihata Chariali. On being informed by one of his co-villagers, Sabitri (PW 8), that his (PW 1's) wife, Charu Hazarika, was unwell, PW 1 came to his house and found his wife's dead body lying at the backyard of his house with several incised wounds on her face. On the following day, i.e., on 02.03.2007, PW 1 lodged a written Ejahar (Ext. 1) and, treating the same as First Information Report (in short, 'FIR'), Gohpur Police Station Case No. 23 of 2007 was registered, under Section 302 IPC, against 'unknown culprits'. During the course of investigation, the Investigating Officer (PW 12) held inquest over the said dead body and prepared inquest report. A sketch map (Ext. 8) was also drawn and a dao, wearing apparels of the deceased and the accused were seized. Chemical analysis of the seized dao revealed presence of human blood. The stains, present on the wearing apparels of the said deceased and the accused, were also found to have human blood, Ext. 10 being the report the Forensic Science Laboratory, Guwahati (in short, 'TSL'). On completion of investigation, police laid charge sheet, under Section 302 IPC, against the accused-appellant. (ii) During the course of investigation, when accused-appellant was interrogated by the police, he confessed, in presence of some of his co-villagers, that he had killed his sister-in-law, Charu Hazarika. The accused-appellant was, however, arrested on 13.03.2007 and he was taken by the Investigating Officer, on police remand, for a period of 3 (three) days. (ii) During the course of investigation, when accused-appellant was interrogated by the police, he confessed, in presence of some of his co-villagers, that he had killed his sister-in-law, Charu Hazarika. The accused-appellant was, however, arrested on 13.03.2007 and he was taken by the Investigating Officer, on police remand, for a period of 3 (three) days. During interrogation, as the accused-appellant expressed his willingness to make confession, he was forwarded to the Sub-Divisional Judicial Magistrate, Biswanath Chariali (PW 14), who recorded judicial confession of the accused-appellant on 15.03.2007. 2. At the trial, when a charge, under Sections 302 IPC, was framed, the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 14 (fourteen) witnesses. The accused-appellant was, then, examined under Section 313 Cr.P.C. and, in his examination aforementioned, the accused-appellant denied that he had committed the offence, alleged to have been committed by him, his case being that of denial and of his being forced by the Investigating Officer, by resorting to beating and torturing, to make judicial confession. The defence also adduced evidence by examining two witnesses. Even the learned trial Court examined two witnesses by taking recourse to Section 311 Cr.P.C. 4. Having, however, found the accused quality 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 a convicted person, has preferred this appeal. 5. We have heard Mr. K. Sarma, learned counsel for the accused-appellant, and Mr. D. Das, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it needs to be noted that the dead body of Charu Hazarika was, admittedly, subjected to post mortem examination, on 02.03.2007, by Dr. J.C. Dey (PW 11). His findings and opinion, which have not been disputed at the trial, are as under: External appearance:- One female dead-body of average built. Eyes & Mouth closed. Rigor mortis present. Clothing stained with blood. Injuries: (i) Deep cut wound transverse 4th Nos. over frontal and parietal region of the head sizes 5" x 3/4", 4" x 1/2", 4'1/2" x 1/2" and 4" x 1/2" all are bone deep. Parts of brain matter coming out. (ii) 2 Nos. of transverse cut wound over right face, size 4" x 1" x bone deep and 4" x 1/2" x bone deep. over frontal and parietal region of the head sizes 5" x 3/4", 4" x 1/2", 4'1/2" x 1/2" and 4" x 1/2" all are bone deep. Parts of brain matter coming out. (ii) 2 Nos. of transverse cut wound over right face, size 4" x 1" x bone deep and 4" x 1/2" x bone deep. Left ear severed. Blood clot present. (iii) Transverse cut wound over the neck, cutting the skin, muscles trachea and oesophagus upto vertebra (C4). (iv) 2 Nos. of oblique cut wound over the upper chest 1" x 1/2" x muscle deep of each wound. Cranium and spinal canal: Scalp - cut injury as described. Skull - parietal and frontal bones were cut as described. Vertebrae - C4 were found cut Membrane - Severed and blood clot present. Cut injury over the brain. Portion of brain matter coming out through the wound. Thorax: Wall - Cut injury as described. Ribs/Cartilages: NAD. Trachea - Severed. Right and left lung - NAD Heart - empty. Abdomen: Esophagus - Severed. Stomach and its contents - contained blood. Small intestine and large intestine-NAD. Liver, spleen, kidneys, bladder-NAD. Muscles, bones and joints:- Injury-Already described. Disease or deformity - Nil. Facture - As described. Dislocation - Nil. 7. It is in the evidence of the doctor (PW 11) that all the injuries were ante mortem in nature, the cut margins were clear and that the injuries were caused by sharp cutting weapon. 8. The doctor (PW 11) has opined that the death was caused due to shock and hemorrhage, which resulted from the injuries sustained by the deceased and that sufficient force was applied for causing injuries, which were found on the body of the said deceased. 9. Apart from the fact that the findings of the doctor have not been disputed at the trial, we too, do not notice anything inherently incorrect or improbable in the findings, which have been arrived at by the doctor (PW 11), and/or the opinion, which he has given with regard to the nature of ante mortem injuries and the cause of dealt. 10. In the face of the ante mortem injuries, which were sustained by the said deceased, there can be no escape from the conclusion that Charu Hazarika's death was homicidal in nature. 10. In the face of the ante mortem injuries, which were sustained by the said deceased, there can be no escape from the conclusion that Charu Hazarika's death was homicidal in nature. The question, however, remains: Whether the accused-appellant was the one, who had caused the injuries, which had been sustained by the said deceased and which have resulted into her death? 11. While considering the question posed above, it needs to be noted that there was, admittedly, no eye witness to the alleged occurrence of assault on Charu Hazarika. This becomes clear from the fact that PW 1, husband of the said deceased and informant of this case, has clearly deposed that someone killed his wife, Charu Hazarika, on 1.3.2007, at around 6.45 p.m., at the backyard of his house, while he was undergoing training at Baihata Chariali. As regards the question as to how he (PW 1) had come to know about the occurrence, it is important to note that according to him (PW 1), he received a phone call from Sabitri (PW 8) asking him to, immediately, come home, because his wife was unwell and, on receiving this information, when he reached his house, he found his wife's dead body lying, in the courtyard, with several hacking marks on her face. It is in the evidence of PW 1 that he lodged the Ejahar, which is Ext. 1, at the police station. 12. The Ejahar, which has been treated as the FIR, did not, admittedly, name anyone as assailant. This apart, PW 1 has, nowhere, deposed that he knew as to who had killed his wife nor has he (PW 1) told that anyone claimed to have witnesses the accused-appellant hacking to death Charu Hazarika. The evidence of PW 1 does not, therefore, help the case of the prosecution except the fact Charu Hazarika's dead body was found at the courtyard of her house. 13. The evidence of PW 2, a co-villager of the informant (PW 1), is no better inasmuch as this witness has deposed that on the day of the occurrence, at about 7.30 p.m., when he went, on hearing commotion, to the house of Charu, he found Charu lying dead smeared with blood. 14. In his cross-examination, PW 1 has deposed that the accused never had any quarrel with Charu and that they lived together for 14 years without quarrel. 14. In his cross-examination, PW 1 has deposed that the accused never had any quarrel with Charu and that they lived together for 14 years without quarrel. This witness (PW 2) has also clarified that he never heard of any dispute between the said deceased and the accused. 15. The evidence of PW 3 and PW 4, too, do not help the case of the prosecution inasmuch as PW 3 has merely deposed that on his way back home from market, at about 6/6.30 p.m., he saw a large number of people in the courtyard of Ganesh, elder brother of the accused and, on reaching there, he found Charu lying in her courtyard with cut injuries on her face and forehead and as far as the evidence of PW 4 is concerned, his evidence is to the effect that on hearing commotion, he went to the house of Charu and saw blood coming out of her body. In no uncertain words, PW 3 has deposed that he does not know who had hacked Charu to death. 16. In fact, both, PW 3 and PW 4, have deposed that the accused is a good person and they did not hear any complaint against him. Though it is in the evidence of PW 3 that the accused confessed his guilt before the police, the evidence, so given, being inadmissible in law, has to be kept excluded from the purview of our consideration and we do so accordingly. 17. With regard to the above, it is also worth pointing out that even the evidence of PW 5 is to the effect that he saw Charu's dead body, which had several cut marks, and that he had heard some of his co-villagers saying that the accused had hacked to death his sister-in-law, Charu, and that in his (PW 5's) presence, the accused had confessed, before the police, to have hacked to death his sister-in-law. 18. 18. We may promptly point out that the evidence, given by PW 5 to the effect that he had heard from some of his co-villagers that the accused had hacked to death his sister-in-law, Charu Hazarika, is nothing, but hearsay inasmuch as no witness has turned up to claim to have witnessed the accused hacking to death his sister-in-law, Charu Hazarika, and nobody has also claimed that he or she had reported to PW 5 that the accused had hacked to death his sister-in-law, Charu. This hearsay piece of evidence is of no consequence and being inadmissible, the same is kept excluded from the purview of our consideration. 19. As regards the evidence of PW 5 that the accused, in the presence of PW 5, had confessed his guilt before the police, it needs to be noted that even this piece of evidence is inadmissible in evidence and cannot, therefore, be taken into account. 21. Coming to the evidence of PW 6, we notice that he had merely seen Charu's dead body lying at the rear part of the courtyard of her house with several injuries on her face and, forehead. This witness, too, has deposed that he heard from some of his co-villagers that the accused had killed his sister-in-law. The evidence, so given by PW 6, is nothing, but hearsay and the evidence, so given by PW 6, is accordingly kept excluded from the purview of our consideration. 21. As far as PW 7 is concerned, he has very clearly deposed that he has no idea as to who had hacked to death Charu. 22. The evidence of PW 8 is not of much use either inasmuch as she has merely deposed that on seeing a gathering of people, she went to the house of Charu and saw her dead body in the courtyard and informed, on phone, PW 1 accordingly and it is not known to her as to who had killed Charu. To the same effect is the evidence of PW 9, who, too, has stated that she does not know as to who had killed Charu, though she had gone to the house of PW 1. 23. To the same effect is the evidence of PW 9, who, too, has stated that she does not know as to who had killed Charu, though she had gone to the house of PW 1. 23. When we come to the evidence of PW 10, we notice that she has deposed that though Charu called her to her house, she could not go there during day time and when she went to Charu's house in the evening and called her from her gateway, she found no response and she returned to her home and, later on, she came to know that Charu had been killed. In her cross-examination, PW 10 has clarified that she used to occasionally visit Charu, but she does not know anything about any quarrel between the accused and Charu. The evidence of this witness does not help at all the case of the prosecution. 24. Turning to the evidence of the Investigating Officer (in short, IO), we need to point out that according to him, on receiving the FIR, he visited the place of occurrence, held inquest over the dead body and also prepared inquest report. His evidence also shows that he seized a dao and also wearing apparels of the deceased, which were stained with blood, and also the accused-appellant's clothes, which, too, bore blood stains and sent the same to the FSL for examination thereof along with finger prints of the accused and, on examining the same, FSL reported that the stains were of human blood. Strangely enough, as regard the finger-prints on the dao, which were alleged to have been sent to the FSL, there is no report. 25. In fact, even the FSL's report does not indicate that the dao, in question, was used by the accused-appellant inasmuch as the finger impression of the accused-appellant is not proved to have been found on the said dao. This apart, the wearing apparels of the accused, which had been sent to the FSL, gave no indication that his wearing apparels had blood stains of the deceased. Mere presence of blood stains, on the wearing apparels of the accused-appellant, would not necessarily mean that he is the assailant unless there is some evidence to show that he was present at Charu's house at the time, when she was assaulted and killed. 26. Mere presence of blood stains, on the wearing apparels of the accused-appellant, would not necessarily mean that he is the assailant unless there is some evidence to show that he was present at Charu's house at the time, when she was assaulted and killed. 26. Though the accused-appellant, according to the IO, was sent to the Magistrate for recording his confessional statement and there is no dispute that such a confessional statement was, indeed, recorded, what is important to note is that the defence has very seriously contended that the said confessional statement was a result of beating and torture on the accused at the hands of the IO. 27. For the purpose, therefore, of determining if the judicial confession, made by the accused-appellant, is or is not voluntary, let us, first, consider the evidence of the IO (PW 12). In this regard, it is noteworthy that though the occurrence took place on 01.03.2007, information was received by the police on 02.03.2007 and the IO visited the place of occurrence soon thereafter, the accused-appellant was, according to the IO, arrested as late as on 13.03.2007 and he was taken, on police remand, for 3 days. While giving the police remand, the Court had specifically directed that the accused-appellant shall not be subjected to physical and/or emotional torture. The Court had also directed that the accused-appellant be subjected to medical checkup once every 24 hours. The IO has, however, admitted, in his cross-examination, that he got the accused-appellant medically examined only once. 28. In such a situation, the assertion of the IO that he did not torture the accused-appellant cannot be easily digested or readily relied upon. 29. Pausing here for a moment, we may point out that it is the unshaken evidence of PW 1 that having taken the accused-appellant to the police station, his hands were seen by him (PW 1) to have been tied upwards by the police and he was severely beaten by lathi and he was asked to make confession that he had killed his sister-in-law and that he was also threatened that all the members of his family would be put behind bar and that PW 1 would lose his job if he (accused-appellant) did not confess. PW 1 has, therefore, deposed, in his evidence, that it is quite possible that the accused-appellant confessed to have killed Charu, because he could not withstand the beating by the police. The evidence, so given by PW 1, remained unshaken. 30. We may, with regard to the above, point out to the evidence of DW 1 inasmuch as this witness has deposed that when he went to the police station, he saw the accused-appellant being badly beaten at the police station and the Second Officer (i.e. the Investigating Officer) was telling the accused-appellant to confess his guilt. Though put to cross-examination by the prosecution, nothing could be elicited from this witness (DW 1) to show that what he had deposed is untrue or false. In fact, in his cross-examination, he has clarified that he saw the accused-appellant being beaten inside a room at the police station. 31. In tune with the evidence of DW 1, DW 2 has deposed that when he went to meet the accused-appellant at the police station, he saw the Investigating Officer beating the accused-appellant with his hands tied above his head in a room of the police station and he also heard the Investigating Officer telling the accused, "You confess your guilt." By cross-examining DW 2, too, prosecution could elicit nothing to show that DW 1's evidence is unbelievable or cannot be relied upon. 32. The IO has also admitted, in his cross-examination, that the finger-prints, on the dao, were not confirmed to be that of the accused-appellant. The IO has also admitted that the public had once surrounded him, because of the accesses committed on them and that he was rescued with the help of additional force and that he had also been placed under suspension. 33. Situated thus, unless there is sufficiently clear and cogent evidence on record to show that the judicial confession, which the accused-appellant had made, was voluntary, it would not be possible to rely on the judicial confession. 34. 33. Situated thus, unless there is sufficiently clear and cogent evidence on record to show that the judicial confession, which the accused-appellant had made, was voluntary, it would not be possible to rely on the judicial confession. 34. Bearing in mind what have been pointed out above, when we turn to the evidence of Sub-Divisional Judicial Magistrate (PW 14), who had recorded the judicial confession, we find from his evidence that the accused-appellant was produced before him on 15.03.2007 at about 1.10 p.m. and, having given the accused-appellant three hours' time for reflection, his judicial confession was recorded at 4.15 p.m. It is in the evidence of PW 14 that the accused had been kept in police custody for 72 hours. 35. One cannot ignore the fact that the Sub-Divisional Judicial Magistrate (in short, 'SDJM') has maintained the record of the judicial confession and this record shows that responding to the questions as to how many hours he was with the police and whether the police had threatened him or applied force upon him, the accused-appellant replied by saying that he was arrested on 12.03.2007. To the query, made by the SDJM (PW 14), the accused-appellant has also stated that he was beaten by the police, but clarified that the police did not beat him thereafter and that they asked him as to who had killed Charu. PW 14 has also recorded that on a query made by him, the accused complained that he had pain on his hands and legs. Strangely enough, PW 14 did not go further and did not ask the accused as to what was the cause of pain on his hands and legs. 36. Though it is true that the mere fact that the accused-appellant had been beaten by the police would not be sufficient to discard his confession as having been made voluntarily unless the confession is a result of beating. 37. However, notwithstanding the fact that the accused-appellant himself claimed that his confession was not because of the beating by the police, heavy burden rested on PW 14 to give sufficient time to the accused-appellant for reflection and put to him all such questions, which were necessary for the purpose of convincing PW 14 that the confession, which the accused-appellant sought to make, would be voluntary. 38. 38. 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 not voluntary, the Court is bound to reject the confession as unreliable. 39. In the case at hand, there is clear evidence with regard to the fact that the accused-appellant was beaten by the police and by beating him, he was asked as to who had killed Charu. In such circumstances, when the accused-appellant was reproduced before the SDJM (PW 14) after he had already spent as long as 72 hours in the police custody, the accused-appellant ought to have been given sufficient time for reflection. The period of three hours, given in the present case for reflection, cannot be regarded as sufficient. 40. Though Mr. K. Sarma, learned counsel, has relied upon, in the present case, on the decision, in Sarwan Singh Rattan Singh Vs. State of Punjab ( AIR 1957 SC 637 ), to show that 24 hours' time for reflection is mandatory, we are constrained to point out that the case of Sarwan Singh Rattan Singh (supra) was considered in Sidharth Vs. State of Bihar, reported in 2005 (12) SCC 545. 41. Having considered the decision in Sarwan Singh Rattan Singh (supra), the Supreme Court pointed out, in Sidharth (supra), that even in Sarwan Singh Rattan Singh (supra), the Court had already pointed out that there is no hard and fast rule with regard to the period of time, which must be given to an accused for the purpose of reflection inasmuch as time to be given for reflection depends on the facts of the give case. 42. We cannot, therefore, hold that the recording of a judicial confession after giving three hours' time for reflection is necessarily illegal and so illegal that it would make the judicial confession inadmissible in law or wholly unreliable in law. 42. We cannot, therefore, hold that the recording of a judicial confession after giving three hours' time for reflection is necessarily illegal and so illegal that it would make the judicial confession inadmissible in law or wholly unreliable in law. It would really depend on the facts and attending circumstances of a case as to whether the time, which had been allowed to an accused for reflection, was or was not adequate. 43. In Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, reported in (2011) 2 SCC 490 , Supreme Court has summarized the law governing the recording of confessional statement under Section 164 Cr.P.C. and the value thereof. The relevant observations, made at Para 64, read as under: 64. The following principles emerge with regard to Section 164 CrPC: (i) The provisions of Section 164 CrPC must be complied with not only in form, but in essence. (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. (vii) Non-compliance with Section 164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open Court. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement. 44. In the present case, the accused was, admittedly, in police custody for 72 hours and though it had been directed that he must be medically examined after every 24 hours, the accused-appellant was not so examined inasmuch as he was examined only once. Thus, no medical examination was done in terms of the directions of the Court. 45. There is also unshaken evidence, which we have already pointed out above, that both the hands of the accused-appellants were tied upwards and that he was beaten up by the IO and that he was not merely beaten, but he was asked to confess to have killed his sister-in-law and threatened that if he did not do so, all the members of his family would be put behind bar and his brother (i.e., the husband of the deceased) would lose his job. In such circumstances, particularly, even when questioned by the SDJM (PW 14), the accused-appellant had told PW 14 that he had been beaten by the police and he had also complained of bodily pain, particularly, on his hands and legs, it could not have been readily concluded by PW 14 that the confession, sought to be made by the accused-appellant, was voluntary and, in our considered view, the accused-appellant, in the facts and attending circumstances of the present case, ought to have been kept, in judicial custody, for a longer period and he ought to have been given sufficient time for reflection to re-assure him that even if he chose not to make confession, no harm would be caused to him. 46. 46. A Magistrate must ensure that the accused is completely free from the influence of the police and in order to achieve this objective, it is for the Magistrate to decide, in every given case, as to what shall be the duration of time for reflection, what questions are to be put to the accused so as to elicit from him appropriate answers in order to determine if the confession, which the accused is seeking to make, can be regarded voluntary. 47. In the present case, we have no doubt that the accused-appellant had not been given sufficient time for reflection and when there was clear evidence on record that the accused-appellant had been beaten, threatened and coerced to make confession, PW 14 ought to have assured the accused-appellant that if the police officer had beaten him (accused-appellant), while he (accused-appellant) was in the custody of the police, action would be taken against him and that no harm would be caused to the accused-appellant even if he chose not to make confession and that if he (accused-appellant) felt that he must own up his guilt, then and then only, he (accused-appellant) may make confession. Merely telling an accused-appellant that he will not be given into police custody even if he chose not to make confession would not make a confession necessarily voluntary if the circumstances of the case point to the confession. 48. As proper precaution had not been taken, in our view, in the present case by PW 14, the judicial confession, in question, cannot be treated as a voluntarily made confession and when the confession of the accused-appellant cannot be held to be voluntary, the question, of examining the confession for determining as to whether the confession is or is not true, does not arise at all. 49. Because of what have been discussed and pointed out above, we do not find that in the case at hand, there was sufficient evidence proving beyond reasonable doubt that the accused-appellant was guilty of the charge, which had been framed against him. We, therefore, set aside his conviction and the sentence, which has been passed against him by the impugned judgment and order. We hold him not guilty of the charge, which was framed against him and acquit him of the same by giving him benefit of doubt. Send back the LCR with a copy of this judgment and order.