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2013 DIGILAW 72 (GAU)

Atul Hazarika v. State of Assam

2013-02-04

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. Both these appeals have arisen out of the judgment and order, dated 29.09.2008, passed, in Sessions Case No. 59 (DH) of 2007, by the learned Sessions Judge, Dhemaji, convicting the accused-appellants under Section 302 read with Section 34 IPC and sentencing each of them to suffer imprisonment for life and pay fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of six months. The prosecution's case, as unfolded at the trial, may, in brief, be described thus:- (i) On 12.10.2005, at about 6 p.m. both the accused, Atul Hazarika and Bijoy Hazarika, assaulted Ajit Hazarika by means of dao in front of the house of Ajit Hazarika (since deceased). On hearing hue and cry, raised from the place of occurrence, PW 1, wife of Ajit Hazarika, went running to the place of occurrence with a lamp in her hand and found both the accused hacking her husband, Ajit Hazarika, with dao, while Ajit Hazarika was lying on the ground in front of his house. When PW 1 came forward to resist the assault on her husband, accused Atul shoved her away by holding hair and assaulted her by the blunt edge of the dao. On hearing hue and cry raised from the place of occurrence, Ajit Hazarika's brother, Doan Hazarika (PW 6), too, came to the place of occurrence, but accused Atul Hazarika chased him away. Before PW 6 (Dhan Hazarika) was so chased away, he had already seen both the accused going towards the house of Ajit Hazarika and assaulting Ajit by means of dao in front of Ajit's house. The two accused, then, dragged injured Ajit Hazarika to Atul Hazarika's courtyard. (ii) On hearing the hue and cry, which had been raised at the place of occurrence, other neighbors of the injured also turned up at the place of occurrence. PW 6 brought a vehicle and while he (PW 6), accompanied by his other co-villagers, was taking injured Ajit to civil hospital, Dhemaji, Ajit succumbed to his injuries. A written information, with regard to the occurrence, was, then, lodged, on 12.01.2005 itself, at Sisibar Village Police Out Post naming the two accused aforementioned as assailants of Ajit Hazarika. PW 6 brought a vehicle and while he (PW 6), accompanied by his other co-villagers, was taking injured Ajit to civil hospital, Dhemaji, Ajit succumbed to his injuries. A written information, with regard to the occurrence, was, then, lodged, on 12.01.2005 itself, at Sisibar Village Police Out Post naming the two accused aforementioned as assailants of Ajit Hazarika. Based on this written information and treating the same as the First Information Report, Silapather Police Station Case No. 153 of 2005, under Sections 302 /506 /34 IPC, was registered against both the accused. (iii) During investigation, police visited the place of occurrence, held inquest over the said dead body and inquest report (Ext. 2) was prepared. The police seized a dao (M. Ext. 1), which was claimed to have been used for causing death of Ajit Hazarika. The said dead body was subjected to post mortem examination. During investigation, the accused-appellant, Bijoy Hazarika, made a judicial confession (Ext. 7), wherein the accused-appellant, Bijoy Hazarika claimed that his step brother Ajit Hazarika was raising hullah, on the day of the occurrence at his gateway by holding a dao and challenging him (i.e., accused-appellant Bijoy Hazarika) sent accused-appellant Atul to police station in order to inform the police and while he (accused-appellant Bijoy Hazarika) was sitting alone in the courtyard of accused Atul, Ajit (since deceased) came challenging him and apprehending that he (accused Atul) might not escape, he snatched away the weapon, which Ajit was holding and, thereafter on seeing bamboo stamp, lying by the side of the courtyard, he picked the same up and hit Ajit on his back and other parts of his body whereupon Ajit fell down and he (accused Bijoy) left his house. In course of time, the police, on completion of investigation, laid charge-sheet against both the accused under Sections 302 /34 IPC. 2. At the trial, when a charge, under Section 302 read with Section 34 IPC, was framed against the two accused-appellants, both of them pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 11 (eleven) witnesses. The two accused-appellants were, then, examined under Section 313 Cr. 2. At the trial, when a charge, under Section 302 read with Section 34 IPC, was framed against the two accused-appellants, both of them pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 11 (eleven) witnesses. The two accused-appellants were, then, examined under Section 313 Cr. P.C. and, in their examinations aforementioned, both the accused-appellants denied that they had committed the offence, which was alleged to have been committed by them, the plea of accused-appellant, Atul Hazarika, being a plea of alibi and the plea of the accused-appellant, Bijoy Hazarika, being that he had merely seen Ajit Hazarika lying on the ground near the gate of his house. No evidence was adduced by the defence. 4. Having, however, found the two accused aforementioned guilty of the offence, which they stood charged with, the learned trial Court convicted them accordingly and passed sentence against them as already mentioned above. Aggrieved by their conviction and the sentence, which has been passed against them, the two accused, as convicted persons, have preferred these appeals. 5. We have heard Mr. B.M. Choudhury, learned counsel for the appellant in Crl.A(J) No. 140/2008. We have also heard Mr. S.K. Medhi, learned Amicus Curiae, appearing in Crl.A(J) No. 141/2008, and Mr. Z. Kamar, learned Public Prosecutor, Assam. 6. While dealing with the present appeal, it may be noted that according to the evidence of PW 1, on the day of the occurrence, at about 6.00 p.m., while she was present in her house, she, on hearing her husband's cries, picked up a lamp in her hand and went rushing towards the gate of her house and saw her husband lying on the ground in front of her house and both the accused hacking her husband with dao and when she resisted, accused Atul shoved her away by holding her hair and hit at her back by the blunt edge of the dao. It is in the evidence of PW 1 that her husband's younger brother, Dhan (PW 6), came to the place of occurrence, but accused Atul chased PW 6 away and, then, accused Bijoy dragged her injured husband to accused Atul's courtyard, she went to the courtyard of the accused and went near her husband. It is in the evidence of PW 1 that her husband's younger brother, Dhan (PW 6), came to the place of occurrence, but accused Atul chased PW 6 away and, then, accused Bijoy dragged her injured husband to accused Atul's courtyard, she went to the courtyard of the accused and went near her husband. It is also in the evidence of PW 1 that her brother-in-law, Dhan Hazarika (PW 6), Kamala Gogoi (PW 3) and Jiban Konwar (PW 5) took her husband to civil hospital, Dhemaji, in a Maruti vehicle, but her husband died and, then, she lodged an Ejahar, which is Ext 1. 7. We have minutely scrutinized the cross-examination of PW 1 by the defence and we notice that the defence could not elicit anything from her cross-examination to show that what she had deposed was untrue or false. In fact, in her cross-examination, PW 1 has reasserted that she had seen both the accused, while they were involved in the commission of offence. 8. Though the defence had put to PW 1, in her cross-examination, many pieces of evidence as omissions from her previous statements made to the police during investigation, it is important to note that none of these omissions was confirmed by the Investigating Officer (PW 11) except that PW 1 had not stated before him that accused Bijoy had dragged her husband, in injured state, to the courtyard of Atul. The omission, so confirmed by the Investigation Officer (PW 11), does not adversely affect the core of the evidence of PW 1, who has succinctly described the occurrence of assault on her husband by the two accused-appellants and the fact that her husband was injured and died, while he was being taken to civil hospital, Dhemaji. 9. Apart from the fact that the evidence of PW 1 has remained unshaken, her evidence is natural, consistent and coherent and her evidence, therefore, inspires confidence. 10. Close on the heels of evidence of PW 1, PW 4 has deposed that upon hearing hue and cry, he came to the house of his son-in-law, Ajit, and PW 1 told him (PW 4) that accused Atul and Bijoy had cut Ajit with dao and that he saw Ajit lying at the courtyard of accused Atul Hazarika, who was bleeding, and though Ajit was taken to the hospital, he died on the way. 11. 11. Broadly in tune with the evidence of PW 1 and PW 4, PW 5 has deposed that on the day of the occurrence, in the evening, he heard PW 1 raising hue and cry by saying that her husband, Ajit had been cut by Atul and Bijoy with dao, whereupon PW 5 came and saw Ajit lying injured smeared with blood at the courtyard of accused Atul, the house of Atul being adjacent to the house of Ajit, and, then, Dhan Hazarika (PW 6) fetched a vehicle and injured Ajit was taken to civil hospital, Dhemaji, but he died. 12. Though PW 4 and PW 5 have both been cross-examined by the defence, nothing at all was elicited from their cross-examination to show that what they had deposed was not true. The evidence of PW 4 and PW 5 have, thus, remained wholly unshaken. Their unshaken evidence shows that on hearing hue and cry, which had been raised by PW 1, when they came out of their respective houses, they found Ajit lying injured smeared with blood at the courtyard of accused Atul and PW 1 was raising hue and cry saying that her husband had been cut by Atul and Bijoy by means of dao. Their evidence also corroborates the evidence of PW 1 that she raised hue and cry, when her husband was assaulted by the two accused-appellants. The evidence of PW 4 and PW 5 is admissible under Section 6 of the Evidence Act as res gestae. 13. Section 6 of the Evidence Act makes it becomes abundantly clear that whatever is said even by the by-standers at a place of occurrence, so shortly before or after an occurrence as to form part of the transaction, is relevant Illustration (a) brings out this aspect very clearly, when this illustration (a) mentions that whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after, is as to form part of the transaction, is a relevant fact. 14. In fact, Section 6 of the Evidence Act, along with Section 7 thereof embodies the rule of admission of evidence known as res gestae. 15. In order to be a part of res gestae, it must have been made substantially contemporaneous with the act or immediately after the act so that there is no opportunity for reflection or fabrication. 14. In fact, Section 6 of the Evidence Act, along with Section 7 thereof embodies the rule of admission of evidence known as res gestae. 15. In order to be a part of res gestae, it must have been made substantially contemporaneous with the act or immediately after the act so that there is no opportunity for reflection or fabrication. It is in this background that the interval between the act and the statement assumes significance. The statement, which is in the nature of a mere declaration or narration of a past event, cannot be termed as res gestae. Such a statement becomes relevant, because the statement is intimately connected with the facts and the statement is, in effect, spontaneous utterance inspired by the excitement of the occasion, there being no opportunity for making a deliberately fabricated statement. 16. The above aspects of res gestae were aptly discussed in R. Vs. Andrews (1987) 1 All ER 513. The observations, made therein, are as follows:- The primary question which the Judge must ask himself is: can the possibility of concoction or distortion be disregarded? To answer that question the Judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterances was an instinctive reaction to that event thus giving no real opportunity for reasoned reflection. In such a situation, the Judge would be entitled to conclude that the involvement or the pressure of the event would exclude all possibility of concoction or distortion provided that the statement was made in conditions of approximate but not exact contemporaneity. In order for the statement to be sufficiently spontaneous, it must be so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the declarant was still dominated by the event Thus, the Judge must be satisfied that the event which provided the trigger mechanism for the statement was still operative. (Emphasis is added) 17. In Thakur Das Vs. (Emphasis is added) 17. In Thakur Das Vs. State of HP 1992 Cr ILJ 2415 (HP), the witnesses deposed that a woman, who was present near the scene of occurrence, had come running to the market crying for help and informing them that the accused had set his wife on fire by pouring kerosene oil. This statement was held to be res gestae as connected to the facts in issue, namely, 'accused setting his wife on fire by pouring kerosene'. 18. In the case of Chander Kala Vs. Ram Kishan (1985) 4 SCC 212 , the scope of res gestae has been enlarged by the Supreme Court. The facts of the case were that complainant alleged that the accused had, by reasons of familiarity, obtained the signatures of the complainant with a view to blackmail her. The complainant went home and narrated the events to her husband and, on the next day, to her colleagues. The question, which arose, was whether the statement, made to the colleagues, would form res gestae. The Supreme Court held that assuming that the complainant's conduct in narrating to her colleagues what had transpired is not res gestae and it would be inadmissible under Section 6 of the Evidence Act, yet the same, when corroborated by the witnesses, who had heard the narration, is clearly admissible, under Section 157 Evidence Act, for the purpose of corroboration. 19. It must be noted that when, on principle, it is said that a statement, made under Section 6, is an exception to the hearsay rule, it should not be contused as making relevant hearsay evidence. Section 60 of the Evidence Act prescribes the mode of direct oral evidence and any evidence, which does not satisfy the test of Section 60, is hearsay and, hence, inadmissible. The term 'hearsay', in the context of Section 6, actually means 'hearsay' to the facts in issue. 20. Section 60 of the Evidence Act prescribes the mode of direct oral evidence and any evidence, which does not satisfy the test of Section 60, is hearsay and, hence, inadmissible. The term 'hearsay', in the context of Section 6, actually means 'hearsay' to the facts in issue. 20. Thus, if the facts in issue is A committed the murder of B, the evidence of witnesses, who depose that C, the son of B, was crying for help and shouting that A has committed the murder of B, is hearsay so far as facts in issue is concerned, because the witnesses have neither seen the murder nor heard A admitting that he committed the murder of B. The statement would not be hearsay if the intent of the statement is to prove the immediate post crime conduct of the person, who witnessed the murder. The conduct, being so spontaneous and natural, that any possibility of concoction, in the making of statement, is absolutely ruled out. 21. The evidence of res gestae given by witnesses, so far as the post crime conduct of the witnesses to a murder, is concerned, the same is direct and should not be confused as hearsay. The evidence becomes relevant, because even though it does not directly prove the existence or non-existence of the facts in issue, yet because of the time and proximity in which the witnesses heard the shouts attaches great credibility to such a statement, because C would not have shouted for help and the witnesses would not have heard the shouts, immediately after the occurrence, had it not been a spontaneous reaction to the events. 22. Thus, evidence, in the form of res gestae statement, is indirectly fed to the facts in issue. 23. In the light of the law, as we have discussed above, there can be no escape from the conclusion that the evidence, given by PW 4 and 5, is admissible in evidence and their evidence shows that promptly after the occurrence, PW 1 was found raising hue and cry saying that her husband had been cut by Atul and Bijoy by means of dao. 24. 24. So far as the evidence of PW 2 and PW 3 are concerned, their evidence do not lend much support to the evidence of PW 1 inasmuch as PW 2 has deposed that the occurrence took place in front of the house of Atul and when he went to the place of occurrence, upon receiving information about the occurrence, he found Ajit lying injured at the courtyard of accused Atul and Dhan (PW 6) brought a van and Ajit was taken to civil hospital, Dhemaji, but he died on the way and that he (PW 2) was also present in the vehicle. However, though PW 2 has claimed that when he went to the place of occurrence, PW 1 told him that accused Atul and Bijoy had killed Ajit by hacking with a dao, considering the fact that PW 1 has, nowhere, deposed that she told PW 2, when PW 2 arrived at the place of occurrence, that accused Atul and Bijoy had killed Ajit by hacking with dao, the evidence, given by PW 2 to the effect that PW 1 had told him that accused Atul and Bijoy had killed Ajit by hacking with dao, is nothing, but hearsay. We, therefore, keep the evidence of PW 2 excluded from the purview of out consideration to the extent that PW 2 claims, in his evidence, that he had been told by PW 1 that accused Bijoy had killed Ajit by hacking him with a dao. The evidence of PW 2, however, clearly shows that he found Ajit lying in courtyard of accused Atul, Dhan (PW 6) brought a van and Ajit was taken to civil hospital, Dhemaji, but he died on the way. 25. Similarly, PW 3 has deposed that while he was at home, Dhan (PW 6) came to his house and told him that accused Atul and Bijoy hacked Ajit by means of a dao and saying that he would go in search of a vehicle, he (PW 6) took the bicycle of PW 3, whereupon he (PW 3) went to the place of occurrence and saw Ajit lying injured at the courtyard of accused Atul, Dhan (PW 6) fetched a van and took Ajit to Civil Hospital, Dhemaji, but Ajit died in the van itself and that he (PW 3), too, was present, in the van, at that point of time. 26. 26. In view of the fact that PW 6 has, nowhere, deposed that he had told PW 3 that Atul and Bijoy had hacked Ajit by means of dao, the evidence, given by PW 3 as to what PW 6 had told him (PW 3), is nothing, but hearsay and we keep the same excluded from the purview of our consideration. What, however, remains in the evidence of PW 3 unshaken, his assertion that he did go to the place of occurrence and saw Ajit lying injured at the courtyard of accused Atul and that Dhan (PW 6) brought a van and took Ajit to civil hospital, Dhemaji, but Ajit died in the van itself. 27. Close on the heels of the evidence of PW 1, PW 6 (Dhan Hazarika) has deposed that the occurrence took place, on 12-10-2005, at about 6.00 pm, in front of the house of deceased Ajit Hazarika, his (PW 6's) house being close to the place of occurrence. It is in the evidence of PW 6 that at the time of occurrence, he was present at his courtyard and from there, the place of occurrence was visible. 28. Describing the occurrence, PW 6 has deposed that he saw Ajit Hazarika (since deceased) returning home from market and right at that time, accused Atul went to the house of Ajit Hazarika and after a while, accused Bijoy also went there and he (PW 6) saw accused Atul and Bijoy hacking Ajit with dao in front of the house of Ajit Hazarika and Ajit fell down on the ground. PW 6 has also deposed that he raised hue and cry and he also moved forward to save Ajit, but the two accused chased him away and when PW 1, wife of Ajit, came to the place of occurrence, accused Atul assaulted her. PW 6 has further deposed that both the accused, then, took Ajit to the courtyard of accused Atul and keeping him there, the two accused left the place and when Ajit was being carried to hospital in a Maruti vehicle, he died. 29. PW 6 has further deposed that both the accused, then, took Ajit to the courtyard of accused Atul and keeping him there, the two accused left the place and when Ajit was being carried to hospital in a Maruti vehicle, he died. 29. Notwithstanding the claim of PW 6 that he had seen the entire occurrence from the beginning to the end, the Investigating Officer (PW 11) has confirmed that PW 6 had not stated before him (PW 11) that he (PW 6) had seen accused Atul cutting Ajit with dao nor did he state that having hacked Ajit with dao, the two accused had dragged Ajit to the courtyard of accused Atul. 30. In the face of the omissions, which have been proved by the Investigating Officer (PW 11), it is well-nigh impossible to place any reliance on the evidence of PW 6 or to treat him as an eye witness to the occurrence. In fact, if the evidence of PW 1, widow of the deceased, is calmly and closely scrutinized, what transpires is that according to her, when she raised hue and cry, Dhan (PW 6) came to the place of occurrence, but accused Atul chased him away. In the light of the evidence, so given by PW 1, it becomes clear that even PW 1 does not support the evidence of PW 6 that PW 6 had witnessed the occurrence of assault on her husband. What, on the other hand, the evidence of PW 1 shows is that PW 6 did come to the place of occurrence after the two accused had already hacked Ajit by dao and injured him and that it was when Ajit was lying on the ground that PW 6 came there. 31. Turning to the evidence of PW 7, we notice that his evidence is not of much value to the prosecution inasmuch as he has deposed that on the following day of the occurrence, he was summoned to the police out post and he identified Ajit's dead body at the Civil Hospital, Dhemaji, and police prepared an inquest report, which is Ext. 2, and he signed the inquest report, Ext. 2(2) being his signature. 2, and he signed the inquest report, Ext. 2(2) being his signature. It is also in the evidence of PW 7 that police seized a dao in connection with Ajit's murder from the place of occurrence and showed him (PW 7) the same at Sisibor village police out post and obtained his signature in the seizure list, Ext 3 being the seizure list and Ext. 3(1) being his signature and that M. Ext. (1) is the said dao. The evidence of PW 7 clearly shows that he has no personal knowledge as to where the dao (M. Ext. 1) was recovered from. There is also no evidence that M. Ext. 1 was the weapon of offence inasmuch as no witness has proved M. Ext. 1 as the weapon of offence and no serological test of the blood, allegedly found on the said dao, was conducted. 32. PW 8 was the doctor, who had, on 13.10.2005, conducted, admittedly, post mortem examination on the dead body of Ajit Hazarika. His findings are as under: Lacerated wound 2 c.m. x 2 c.m. x 1 c.m. (length, breath and depth) present on left arm. Lacerated deep cut wound 12 c.m. x 10 c.m. x 5 c.m. present on the nape of the neck. There is fracture of 1st cervical vertebrae. Lacerated wound 5 c.m. x 2 c.m. x 2 c.m. present on the vertex of skull. Skull bone - intact. Haematoma present beneath the wound. Other organs are found to be normal. 33. In the opinion of the doctor, the death was caused due to shock and haemorrhage resulting from the injuries, which had been sustained by the vital organ (brain), the injuries having been caused by a sharp-cutting weapon, the wound being ante mortem in nature. 34. PW 8 has proved Exhibit 4 as the post mortem report. 35. Though PW 8 has described the injuries, which had been found on the said dead body, as lacerated wounds, the fact remains that all the three wounds were deep cut wounds or incised wounds and such wounds could have been caused by a sharp-cutting weapon, such as, dao. Thus, the evidence of the doctor (PW 8) substantially supports and corroborates the unimpeachable ocular evidence given by PW 1, widow of the said deceased. 36. Thus, the evidence of the doctor (PW 8) substantially supports and corroborates the unimpeachable ocular evidence given by PW 1, widow of the said deceased. 36. Coming to the evidence of PW 9, who, as the Additional Chief Judicial Magistrate, recorded the confession of the accused-appellant, Bijoy Hazarika, it is noteworthy that except suggesting to PW 9 that the confession had not been made voluntarily by accused Bijoy, nothing was elicited at all from his cross-examination to show that his evidence was not believable. 37. Infect, while cross-examining the Investigating Officer (PW 11), it was not even suggested by the defence that the Investigating Officer or anyone had forced, coerced, intimidated or induced accused Bijoy to make confession. Failure, on the part of the defence to even suggest to the Investigating Officer (PW 11) that accused Bijoy had been forced, coerced, intimidated or induced to make confession, one cannot but hold that the judicial confession, which accused Bijoy made, was voluntary. This apart, the record of the judicial confession shows that accused Bijoy had been given sufficient time for reflection, he had been properly cautioned and told by PW 9 about the consequences of making of confession and he had also been told by PW 9, in no uncertain words, that even if he (accused Bijoy) chose not to make confession, he would not be sent to the custody of police. Responding thereto, accused Bijoy clearly stated that his conscience had asked him to tell the truth and he repented killing Ajit and it was for this reason that he (accused Bijoy) was going to confess. The judicial confession of the accused-appellant, Bijoy Hazarika, reads as under: The incident took place around 6 in the evening on 12.10.2005 at the courtyard of my younger brother Atul Hazarika's house at Sripani Ahom village. At that time I was at Atul's house. Then Ajit Hazarika who was my step brother, was raising 'hullah' taking a 'Paling' and 'Mit dao' at his gate way. Hurling filthy language he was saying me, "come out, let us fight". Then making a discussion with Atul I sent him to the thana to inform the police. I was sitting alone on Anil's courtyard. On seeing me Ajit charged at me. Apprehending that I might not be escaped I snatched away his Pating (..................). Hurling filthy language he was saying me, "come out, let us fight". Then making a discussion with Atul I sent him to the thana to inform the police. I was sitting alone on Anil's courtyard. On seeing me Ajit charged at me. Apprehending that I might not be escaped I snatched away his Pating (..................). Thereafter, on seeing a bamboo stamp lying near the side of the courtyard I picked it up and his Ajit with it in his back and other parts of his body. Then Ajit Hazarika fell down and I left for my house. After a little while police arrived. Just before that his younger brother took Ajit to the medical. But he died on route. Before this incident too Ajit use to threaten us that he would cut or kill us. We could not sleep for 4/5 days. Atul was not involved in the quarrel (incident). Nobody compelled me to confess. Being repented I have telling the truth today. 38. When the judicial confession, which the accused-appellant, Bijoy Hazarika, had made, is considered in the light of the medical evidence on record, it becomes transparent that the medical evidence belies the judicial confession inasmuch as the accused-appellant, Bijoy, has claimed, in his confessional statement, to have assaulted Ajit by means of a bamboo stem, which was lying by the side of the courtyard; whereas the medical evidence clearly shows deep cut-wounds, which could not have been caused by bamboo stem. This apart, the description of the occurrence, as given in the judicial confession of the accused-appellant, is belied by the unshaken and clear evidence of PW-1. 39. We therefore, find it impossible to hold that the judicial confession, which the accused-appellant, Bijoy, had made, was true. In fact, in his examination under Section 313 Cr. This apart, the description of the occurrence, as given in the judicial confession of the accused-appellant, is belied by the unshaken and clear evidence of PW-1. 39. We therefore, find it impossible to hold that the judicial confession, which the accused-appellant, Bijoy, had made, was true. In fact, in his examination under Section 313 Cr. P.C., while the accused-appellant did not dispute the fact that he had made judicial confession nor did he contend that his confession was involuntarily given or was forcibly taken, he has claimed that on the day of the occurrence, after he had rice in the evening, he heard hue and cry at the gate of Ajit Hazarika and he went out of the house, taking a piece of bamboo fencing, and saw Ajit Hazarika lying there and, by that time, Mini Hazarika (i.e., PW 1) and her brothers came there running, whereupon he (i.e., the accused-appellant, Bijoy) went to the paddy field and hid himself there. 40. Thus, though belatedly, the accused-appellant has retracted his confession, which he had made before PW 9. This retracted confession, for the reasons, which we have assigned above, does not inspire any confidence. This apart, the statement, which has given, later on, by accused Bijoy, while being examined under Section 313 Cr. P.C., is completely contradicted and belied by the evidence on record. 41. Even, however, the judicial confession is kept excluded by us from the purview of our consideration, as having not been proved to be true, the unimpeachable and creditworthy evidence of PW 1 coupled with the other evidence on record, which we have discussed above, we entertain no doubt that Ajit Hazarika was hacked by means of a dao, in furtherance of the common intention of both the accused-appellants, in front of his gate and when he was lying injured on the ground, he was carried by accused-appellant, Bijoy, to the courtyard and was put in a vehicle to be carried to civil hospital, Dhemaji for the purpose of treatment, but Ajit succumbed to his injuries. The evidence, so adduced by the prosecution, clearly proves both the accused-appellants guilty of the offences under Section 302 read with Section 34 IPC thereof. We, therefore, notice no merit in the present appeals. 42. In the result and for the reasons discussed above, both these appeals fail and the same are accordingly dismissed. The evidence, so adduced by the prosecution, clearly proves both the accused-appellants guilty of the offences under Section 302 read with Section 34 IPC thereof. We, therefore, notice no merit in the present appeals. 42. In the result and for the reasons discussed above, both these appeals fail and the same are accordingly dismissed. The conviction of the two accused-appellants and the sentence, which has been passed against them, are accordingly upheld. 43. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to this Court. Send back the LCR with a copy of this judgment and order.