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2013 DIGILAW 242 (GAU)

Ratneshwar Konwar v. State of Assam

2013-04-03

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal against the judgment and order, dated 30.01.2008, passed, in Sessions Case No. 113/2003, by the learned Additional Sessions Judge (FTC), Dibrugarh, convicting the two accused-appellants, namely, Ratneswar Konwar and Smt. Jaya Gogoi, under Sections 302 and 201 read with Section 34, IPC, and sentencing each of them to undergo, for their conviction under Section 302 read with Section 34, IPC, imprisonment for life with fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for another two months and also to undergo, for their conviction under Section 201 read with Section 34, IPC, rigorous imprisonment for 5 (five) years and pay fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for 1 (one) month, both the sentences having been directed to run concurrently. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: Bharat Gogoi, step-son of accused, Jaya Gogoi, used to live, prior to his death, at the house of Jaya Gogoi, where, apart from Bharat Gogoi and Jaya Gogoi, accused Ratneswar Konwar, too, used to live. On 29.07.2002, at about 11-00 P.M., Bharat Gogoi went missing. Curious to know about his whereabouts, his co-villagers, including his uncle, Jiba Kanta Gogoi, went, on 08.08.2002, to the house of accused Jaya Gogoi and questioned her and also accused Ratneswar Konwar about the whereabouts of Bharat Gogoi. On being so questioned, the two accused aforementioned confessed to have killed Bharat Gogoi. On the basis of the confession, so made, an ejahar (Exhibit 1) was lodged, in writing, by Bharat Gogoi's uncle, Jiba Kanta Gogoi, at Gabharupathar Police Outpost. Treating the said ejahar as First Information Report, Dibrugarh Police Station Case No. 338/2002 was registered, under Sections 302 /201 /34, IPC, against both the accused aforementioned. (ii) During the course of investigation, the dead body of Bharat Gogoi was recovered by digging the ground near the latrine, which was located within the compound of the house of accused Jaya Gogoi. Inquest was held over the said dead body, which was subjected to post mortem examination and, on completion of investigation, a charge sheet, under Sections 302 /201 /34, IPC, was laid against both the accused aforementioned. Inquest was held over the said dead body, which was subjected to post mortem examination and, on completion of investigation, a charge sheet, under Sections 302 /201 /34, IPC, was laid against both the accused aforementioned. (iii) At the trial, when charges, under Section 302 and 201 read with Section 34, IPC, were framed against both the accused, both of them pleaded not guilty thereto. (iv) In support of their case, prosecution examined altogether 9 (nine) witnesses. The two accused were, then, examined under Section 313, Cr.P.C. and, in their examinations aforementioned, they denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. The defence also adduced evidence by examining one witness. (v) Having, however, found the two accused guilty of the offences, which they stood charged with, the learned trial Court convicted them accordingly and passed sentences against them as mentioned above. Aggrieved by their conviction and the sentences, which have been passed against them, both the convicted persons have preferred this appeal. 2. We have heard Mr. S.K. Ghosh, learned amicus curiae. We have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 3. While considering the present appeal, it may be noted that the evidence of PW 2 (uncle of deceased Bharat Gogoi), PW 4, PW 5 and PW 6 (co-villagers of Bharat Gogoi), are relevant in the sense that they have given evidence to the effect that a Bichar (i.e., sitting of elders for settlement of disputes) was held with regard to the disappearance of Bharat Gogoi, who used to live, for sometime, at the house of his stepmother, Jaya Gogoi. 4. Broadly speaking, the evidence given by PW 2, PW 4, PW 5 and PW 6 are to the effect that, at the Bichar, which was so held, both the accused, Jaya Gogoi and Ratneswar Konwar, were questioned by their co-villagers as regards the disappearance of Bharat Gogoi and, on being so questioned, Jaya Gogoi and Ratneswar Konwar, according to these witnesses, have confessed to have killed Bharat Gogoi and also to have buried his dead body at the backyard of Jaya Gogoi's house. It is in the evidence of PW 2 (Jiba Kanta Gogoi), uncle of Bharat Gogoi, that he lodged a written information, in this regard, with the police, who came to the house of accused Jaya Gogoi and recovered, at her instance, the dead body of Bharat Gogoi by digging a place near the latrine located within the compound of the house of accused Jaya Gogoi. 5. Notwithstanding the fact that the defence denied that Bharat Gogoi used to live, prior to his death, at the house of his step- mother, accused Jaya Gogoi, there is overwhelming evidence on record to show that Bharat Gogoi, indeed, used to stay at the house of his step-mother, for sometime, before he died. 6. What is, however, of immense importance to note is that, according to PW 4, both the accused, Jaya Gogoi and Ratneswar Konwar, confessed to have killed Bharat Gogoi. It is, however, in the evidence of PW 4 that having made the confession, as mentioned hereinbefore, accused Ratneswar Konwar fled away from the Bichar and he had to be caught by his co-villagers and, then, the ejahar was lodged by PW 2. 7. What is, now, pertinent to note is that PW 4 claimed, in her cross-examination, that, at the Bichar, accused Jaya Gogoi, having admitted to have killed Bharat Gogoi, claimed that his dead body had been thrown into the river and though the villagers tried to recover the dead body from the river, the police, eventually, recovered the dead body from the backyard of the house of Jaya Gogoi. 8. In tune with the evidence of PW 4, the evidence of PW 6 is that in the Bichar, accused, Jaya Gogoi, claimed that Bharat Gogoi's dead body had been thrown away into the river. 9. What clearly surfaces from the above discussion of the evidence on record is that having, allegedly, confessed to have killed Bharat Gogoi, accused Ratneswar Konwar had fled away and he had to be caught by his co-villagers. Similarly, accused Jaya Gogoi, having admitted to have killed Bharat Gogoi, claimed that the dead body of Bharat Gogoi had been thrown away into the river; whereas, Bharat Gogoi's dead body was, eventually, recovered, as mentioned above, from the backyard of her house. Similarly, accused Jaya Gogoi, having admitted to have killed Bharat Gogoi, claimed that the dead body of Bharat Gogoi had been thrown away into the river; whereas, Bharat Gogoi's dead body was, eventually, recovered, as mentioned above, from the backyard of her house. These pieces of evidence eloquently speak that the two accused - appellants did not make the alleged confession voluntarily; or else, there was no reason for the accused-appellant, Ratneswar Konwar, to run away from the Bichar nor was there any plausible reason for accused-appellant, Jaya Gogoi, to bluff her co- villagers that Bharat Gogoi's dead body had been thrown into the river. 10. In the face of the fact that the two accused-appellant had made the alleged confessions involuntarily, as indicated above, their said confessions could not have been made foundation for their conviction; whereas, we find that their conviction is entirely based on the alleged extra-judicial confession, which the two accused-appellants had made, when they were called to the Bichar. 11. There can be no doubt that the conviction of an accused is permissible on the basis of his extra-judicial confession. What is, however, important to bear in mind is that a confession, judicial or extrajudicial, must be voluntary and true. If the confession is found to be involuntary, the question as to whether the confession is true or not becomes immaterial. 12. In the present case, the confession, as we have pointed out above, was wholly involuntary and, in such circumstances, the alleged extra-judicial confessions, made by the accused-appellants, could not have been made the basis of their conviction and if the alleged extra-judicial confessions are kept excluded from the purview of consideration, as we must do, the prosecution would be left with no evidence, which would warrant conviction of the accused-appellant except the fact that Bharat Gogoi's dead body was recovered from the backyard of the house of the accused Jaya Gogoi. The fact that the said dead body was found in the manner, as indicated above, undoubtedly, raises suspicion; rather, grave suspicion, that, at least, accused-appellant, Jaya Gogoi, was responsible for the death of Bharat Gogoi and for the disposal of the dead body of Bharat Gogoi. The fact that the said dead body was found in the manner, as indicated above, undoubtedly, raises suspicion; rather, grave suspicion, that, at least, accused-appellant, Jaya Gogoi, was responsible for the death of Bharat Gogoi and for the disposal of the dead body of Bharat Gogoi. What we cannot, however, ignore is the fact that the accused, Jaya Gogoi, was, admittedly, not the sole occupant of the house and, in the absence of any other evidence, it is too hazardous to hold that Bharat Gogoi had been put to death by accused-appellant, Jaya Gogoi, either alone or conjointly with accused-appellant, Ratneswar Konwar, in furtherance of their common intention. At any rate, the present case was the one, wherein the accused-appellants ought to have been accorded, at least, benefit of doubt. 13. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellants and the sentences, which have been passed against them by the impugned judgment and order, are hereby set aside. Both the accused-appellants are held not guilty of the offences, which they stand convicted of and they are acquitted of the same under the benefit of doubt. 14. Let the accused-appellants be set at liberty, forthwith, unless they are required to be detained in connection with any other case. 15. With the above observations and directions, this appeal stands disposed of. 16. Send back the LCR. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court.