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2014 DIGILAW 103 (GAU)

Khagen Buragohain v. State of Assam

2014-01-28

K.SREEDHAR RAO, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment and order dated 27.05.2009, passed by the learned Additional Sessions Judge, Sivasagar in Session Case No 39 (SS) of 2005, convicting Sri Khagen Buragohain, appellant herein, of offence under Section 302 IPC and sentencing him to imprisonment for life and a fine of Rs. 5,000/- i/d, R.I. for another six months for offence aforesaid. Being aggrieved and dissatisfied with the aforesaid judgment and order the appellant Sri Khagen Buragohain (hereinafter referred to as "accused person") has preferred the present appeal from jail citing several infirmities in the aforesaid judgment and order. 2. Heard Mr. Z. Alam, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Addl. P.P. 3. The facts which are recorded in the FIR and which are necessary for disposal of the present appeal are that on 16.04.2002, the accused person lodged an FIR with Officer-in-Charge, Sonari Police Station alleging that on the night intervening 14th and 16th April, 2002 at about 2:30 a.m.., four unidentified persons came to his house while he was away from his house, entered there into and kidnapped his wife and four daughters and took them to some unknown destination. 4. One of his daughters, namely, Purabi Buragohain somehow managed to escape from the clutches of miscreants and ultimately she returned home next day in the morning. However, in the morning, the dead bodies of his wife and one daughter were found floating in the nearby Taukak River. Till the time of filing of the FIR, however, the bodies of two other daughters could not be traced out. Later on, the dead bodies of other two daughters were also found floating in the same river. 5. On receipt of the FIR, the O/C Sonari Police Station registered a case vide Sonari Police Case No. 68 of 2002 under Section 448/506/364/302/34 IPC and thereafter, O/C himself took up the investigation. During the course of investigation, the I.O. visited the place of occurrence, conducted inquest on the dead bodies and sent such bodies to Civil Hospital, Sivasagar for post mortem examination for ascertaining the cause of death of wife and daughters of the informant. 6. As the investigation proceeds, the sole surviving daughter of the accused person made statement before the Magistrate alleging that her own father had killed her mother and three daughters after forcing them to consume poison. 6. As the investigation proceeds, the sole surviving daughter of the accused person made statement before the Magistrate alleging that her own father had killed her mother and three daughters after forcing them to consume poison. She had also stated that before forcing them to take poison, the accused person took all of them to the bank of the nearby river and forced them to take poison. 7. In due course, the viscera, taken from the dead bodies, were sent to FSL, Guwahati. The report of the FSL comes in due course and according to such report, samples sent to the FSL gave positive test for "carbamate insecticido (Furadon)". On conclusion of the investigation, the I.O. submitted charge sheet under Section 302/201/211 IPC against the accused person and forwarded him to court to stand trial. 8. The learned Magistrate before whom charge-sheet was so laid committed the case to the Court of Sessions since the offence under Section 302 IPC is exclusively triable by the Court of Sessions. On the receipt of the case on commitment, the learned Session Judge, Sivasagar transferred the case to the file of the Additional Sessions Judge (FTC) for disposal of the case in accordance with law 9. The learned Sessions' Judge on receipt of the case on transfer and on hearing the learned counsel for the parties framed charge under Section 302 IPC against the accused persons and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. During trial, the prosecution side has examined as many as 16 witnesses including the M.O. who conducted autopsy on the dead bodies and the I.O. 10. The statement of the accused person was also recorded under 313 Cr.P.C.. The accused plea was of total denial. He however, adduced the evidence of three witnesses in support of his plea that he is innocent. On conclusion of the trial and on hearing the arguments, advanced by the learned counsel for the parties, the learned trial court convicted the accused person of offence under Section302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 11. Opening up of argument on behalf of the appellant, Mr. It is that judgment which has been assailed in the present appeal. 11. Opening up of argument on behalf of the appellant, Mr. Z. Alam has submitted that judgment under challenge is not sustainable in law since it is not based on evidence on record. In that connection, it has been stated that the prosecution has made two pronged attempts to make out the allegation against the accused person. In first place, it has relied on the confessional statement of the accused person. 12. Secondly, the prosecution relied on the statement made by PW-4 Smti. Purabi Buragohain before the Magistrate during the investigation which she however, refused to support during trial. According to the learned counsel for the accused/appellant, the confessional statement is unsustainable in law since it was recorded in profound violation of laws which hold the field aforementioned. 13. What is worse, in order to convict the accused person of offence under Section 302 IPC, the learned trial Court had used the statement recorded under Section 164 Cr.P.C. as substantive evidence and convicted the accused/appellant on the basis of such statement which is not permissible under the law. He therefore, submits the Court to acquit the accused person of offence under Section302 IPC on setting aside the judgment which is impugned in this appeal. 14. On the other hand, the learned additional P.PMs. S. Jahan submits that the judgment, rendered by the learned trial court is based on evidence on record and as such, same needs no interference from this court of appeal and therefore, she urges this court to dismiss the appeal on affirming the judgment of the learned trial Court. 15. We have heard the arguments, advanced by the learned counsel for the parties having regard to the evidence on record and the judgment under challenge. But before we proceed further, we find it necessary to have a look at the evidence of Doctor who conducted autopsy on the dead bodies. He is Dr. Saukat Hussain and was examined as PW-1. According to him, on 12.04.2002, he was posted at Sivsagar Civil Hospital. 16. But before we proceed further, we find it necessary to have a look at the evidence of Doctor who conducted autopsy on the dead bodies. He is Dr. Saukat Hussain and was examined as PW-1. According to him, on 12.04.2002, he was posted at Sivsagar Civil Hospital. 16. On that day, on police requisition, he conducted autopsy on the bodies of a) Thaneswari Buragohain (age 35 years), b) Karabi Buragohain (age about 10 years) c) Sabita Buragohain (age about 18 years) and d) Bandita Buragohain(age about 16 years) and have found that all those persons "died of asphyxia due to drowning" and in that connection, he submitted report which he proved as Exhibit 1 to Exhibit 4. He however, could not ascertain time of death of the deceased. 17. So situated, let us consider the testimony of prime prosecution witness who is none other than PW 4 Smti. Purabi Buragohain, sole surviving daughter of the accused person. According to her, during the time under consideration, she was reading in class- IV. On the night in question, she woke up from sleep since she had a tendency to answer the call of nature. Therefore, she along with her mother made preparation to come out of house taking a lamp in hand. 18. Little thereafter, few persons came there and called her father by tine. Her mother told them that her husband was not in house at that time. However, those persons ordered her mother to open the door. As her mother opened the doors, they came in and ordered her mother to go along with them. Thereafter, those miscreants took her mother and four daughters towards some unknown destinations. It is also her evidence that the miscreants had their faces covered with cloths. 19. Ultimately, the miscreants took them to the Taukak River. Precisely at that point of time, they heard the trumpets of wild elephants for which she fled from such place. In the morning, she met one garden labour who took her to the house of one Bhola. Subsequently, her father met her and she reported all those incidents to her father. Soon thereafter, she along with the father went to the river and saw the dead bodies of her mother and sisters floating in the river water. 20. In the morning, she met one garden labour who took her to the house of one Bhola. Subsequently, her father met her and she reported all those incidents to her father. Soon thereafter, she along with the father went to the river and saw the dead bodies of her mother and sisters floating in the river water. 20. It is also her evidence that during the course of investigation, the police took her to the court at Sonari, Sivasagar and forced her to make a statement implicating her father as being the author of aforementioned crimes. On being so compelled by the police, she gave the statement before the Magistrate stating that on the fateful night, her father took all of them including PW 4 to the river nearby and forced her mother and her three sisters to consume poison and thereafter he threw their bodies to the river. 21. Sri Sunu Dutta (PW2), Sri Bikash Borah (PW 3), Smti. Kalpana Baruah (PW 5), Sri Biren Munda (PW6), Sri Tunu Munda (PW 7), Sri Ravan Munda (PW8), Smti. Tutumoni Bezbaruah (PW 9), Smti. Puspa Saaikia(PW 10), Smti. Deepamani Baruah (P.W. 11), Sri Dil Bahadur Chetry (PW 12) and Sri Pradip Buragohain (PW 13) are found saying that they went to the bank of river Taukak on hearing that the dead bodies of the aforementioned persons were found floating in the river water. 22. On getting such information, they went to the place aforementioned and saw the dead bodies of wife of accused person and his three daughters floating in the river water. They also state that they did not know how those persons met their death. PW 2 has, however, stated that police conducted inquest on the dead bodies of Karabi Buragohain, Sabita Buragohain, Bandita Buragohain and Thaneswari Buragohain and prepared reports in that connection which he proved as Ext.-5 to 8 respectively. 23. That police conducted inquest on the bodies of Sabita Buragohain and Thaneswari Buragohain and that police prepared inquest report in respect of examinations done on those two bodies have also been supported by PW-3. According to PW-3, Ext.-6 and Ext. 8 are the reports in respect of inquest done on the body of Sabita Buragohain and Karabi Buragohain. On the other hand, PW-16 is the I.O. who conducted investigation in connection with case under consideration. 24. According to PW-3, Ext.-6 and Ext. 8 are the reports in respect of inquest done on the body of Sabita Buragohain and Karabi Buragohain. On the other hand, PW-16 is the I.O. who conducted investigation in connection with case under consideration. 24. PW 14 Shri Deben Tanti, a garden labour, deposes that one morning, when he went to nearby jungle to answer the call of nature, he met a young girl there who was weeping and crying. When he came to her and enquired her as to why she was weeping and where she was coming from, she could not give any appropriate reply. But she told him that she knew one Bhola. Accordingly, he took the girl to Bhola and handed her over to him for taking her to her house. 25. A perusal of above evidence clearly reveals that PW-2 to PW-3 and PW 5 to PW14 could no way throw any light on the matter under consideration. On the other hand, though PW4 gave a statement before the Magistrate during trial supporting the prosecution case, yet, she refused to support such version before the Court during trial. She is also heard saying that she gave the statement before the Magistrate implicating her father under compulsion since the police forced her to do so. 26. It is a settled law that the statement recorded by Magistrate during investigation u/s. 164 Cr.P.C. normally cannot be used as substantive evidence. Being so, the statement which the PW 4 had rendered before the Magistrate during investigation implicating her father and which was proved as Ext.-10 became a document having little evidentiary value since PW 4 refused to support such version while she was being examined before the Court during the trial. 27. What little evidentiary value it had got, that too got vanished completely since she made one more statement before the Magistrate during investigation which was proved as Ext. 9. Exhibit 9 totally contradicts her statement, made in the Exhibit 10, since in the Ext.-9, PW 4 states that the author of the crime in question was not her father but some unknown miscreants instead. 28. Therefore, Ext. 9. Exhibit 9 totally contradicts her statement, made in the Exhibit 10, since in the Ext.-9, PW 4 states that the author of the crime in question was not her father but some unknown miscreants instead. 28. Therefore, Ext. 9 together with the evidence of the PW4 that the police had forced her to give the second statement to implicate her father falsely with the crime in question makes it more than clear that no reliance can be placed on the evidence rendered by PW 4 in concluding that the accused is the author of crime aforementioned. Thus, we are constrained to hold that PW 2 to PW 14 could not make out the allegations brought against the accused person. 29. So situated, let us see how far the confession in question makes out the charge brought against the accused person. Before we proceed further, we find it necessary to know how much time needs to be given to a confessing accused person to ponder over the statutory warnings given to him by the Magistrate and to decide whether he is going to make a confession since a confession cannot be acted upon unless there is a clear finding that the confession, made by the accused, is voluntary and truthful. 30. It is true that there is no hard and fast rule as to the time that needs to be given to a confessing accused person to think over the warnings rendered to him by the Magistrate and to decide if he is still desirous of making a confession. In that connection, we may look into the decision rendered by Hon'ble Supreme Court in the case of Sarwan Singh Rattan Singh v. State of Punjab, reported in AIR 1957 SC 637 . 31. In Sarwan Singh Rattan Singh (supra), Supreme Court clearly held that a confessing accused generally needs to be given 24 hours time to have proper reflections on the warnings given to him so that such an accused person does not make any confession under any kind of influence whatsoever. The relevant part is reproduced below:-- The whole object of questioning to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in S. 24 of the Indian Evidence Act. The relevant part is reproduced below:-- The whole object of questioning to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in S. 24 of the Indian Evidence Act. There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him in jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. However, speaking generally, it would we think, be reasonable to insist upon giving an accused person at least 24 hours time to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded of coerced to make a confession, even longer period may have to be given to him before his statement is recorded. In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter. 32. The decision, rendered in Sarwan Singh Rattan Singh (supra), has again been reiterated in the case of Chinnah Gowda v. State of Mysore reported in (1963) 2 SCR 517. The relevant part is reproduced below:-- It has been pointed out by this Court in Sarwan Singh v. State of Punjab that when an accused person is produced by the investigating officer before the Magistrate for recording his confession, it is of the utmost importance that his mind should be completely free from any possible influence of the police and he must be sent to jail custody and given adequate time to consider whether he should make a confession at all. 33. 33. The decision rendered in Sarwan Singh Rattan Singh (supra), as far as time of reflection is concerned has again been reiterated by the Apex Court of the Country in the case of Kartar Singh v. State of Punjab. The relevant part is reproduced herein below:-- 385. Section 164 of the Code given power to the Metropolitan Magistrate or Judicial Magistrate to record confession and statements during the course of investigation under Chapter 12 or under any law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. The Magistrate may record confession or statement made to him. But before doing so he is enjoined by sub-section (2) thereto to explain to the person making it as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. He shall record the confession in the manner provided in Section 281 for recording the examination of the accused person. It shall not only be signed by the Magistrate, but also by the accused himself. The Magistrate shall also append a memorandum at the foot of the record as laid down in sub-section (4). It he has no jurisdiction to inquire into or try the offence he shall forward the confession so recorded to the Magistrate by whom the case is to be inquired into or tried. High Courts have made rules in this behalf to give sufficient time to the accused for reflection, relevant warnings and other related procedural safeguards, etc. 390. It is equally settled law that a statement cannot be said to be properly recorded under Section 164 of the Code if a police officer is present or allowed to be present at that time or is allowed to put question to the accused. Equally it is settled law that confession would not be recorded during night time or late hours after the accused has been subjected to interrogation by the police officer for 3 to 4 hours and had broken down under the continued interrogation. Equally it is settled law that confession would not be recorded during night time or late hours after the accused has been subjected to interrogation by the police officer for 3 to 4 hours and had broken down under the continued interrogation. It is not enough for a Magistrate to give the accused a warning that the confession, if made, would be used against him but it is essential that he should put questions to satisfy himself that the confession was in fact voluntary and the questions with answers must be recorded. The Court before whom the confession is used must have material on which it can be satisfied that the confession was in fact must have material on which it can be satisfied that the confession was in fact voluntary. It is mandatory under Section 164 of the Code that the Magistrate must record the confession strictly in accordance with the prescribed procedure. Sufficient time should be given to the accused for reflection, but no hard and fast rule could be laid as to the proper time. It is settled law that at least 24 hours should be given to the accused to decide whether or not he should make a confession. If the circumstances generate any suspicion that the accuse was induced or coerced or threatened to make a confession, even longer period should be given as held by this Court in Sarwan Singh v. State of Punjab so much is the concern, protection and safeguard provided by the Evidence Act. 34. The necessity of giving reasonable time to a confessing accused to think over whether or not to make confession so as to ensure the voluntariness in making a confession by such an accused person has come up for consideration in State of Maharashtra v. Damu reported in (2000) 6 SCC 269 . Considering the matter above, Hon'ble Supreme Court held as follows:-- Even otherwise, a Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts. 35. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts. 35. In Babubhai Udesinh Parmar v. State of Gujarat reported in (2006) 12 SCC 268 Hon'ble Supreme Court has asked the Magistrate dealing with a confessing accused person to take note of the period for which the accused was kept in police custody before being brought to the Magistrate to have his confession recorded. The relevant part is reproduced below:-- 15. Section 164 provides for safeguards for an accused. The provisions contained therein are required to be strictly complied with. But, it does not envisage compliance with the statutory provisions in a routine or mechanical manner. 16. The court must give sufficient time to an accused to ponder over as to whether he would make confession or not. The appellant was produced from judicial custody but he had been in police custody for a period of 16 days. The learned Magistrate should have taken note of the said fact. It would not be substantial compliance of law. What would serve the purpose of the provisions contained in Section 164 of the Code of Criminal Procedure are compliance with spirit of the provisions and not merely the letters of it. What is necessary to be complied with the provisions of compliance with the statutory provisions in letter and spirit. We do not appreciate the manner in which the confession was recorded. He was produced at 11:15 a.m.. The first confession was recorded in 15 minutes' tune which included the questions which were required to be put to the appellant by the learned Magistrate for arriving at its satisfaction that the confession was voluntary in nature, truthful and free from threat, coercion of undue influence. It is a matter of some concern that he started recording the confession of the appellant in the second case soon thereafter. Both the cases involved serious offences. They resulted in the extreme penalty. The learned Magistrate, therefore, should have allowed some more time to the appellant to make his statement. He should have satisfied himself as regards the voluntariness and truthfulness of the confession of the appellant. 36. Both the cases involved serious offences. They resulted in the extreme penalty. The learned Magistrate, therefore, should have allowed some more time to the appellant to make his statement. He should have satisfied himself as regards the voluntariness and truthfulness of the confession of the appellant. 36. We may note here that in Rabindra Kumar Pal (supra), Hon'ble Supreme Court held that the requirements of Section 164 Cr.P.C. are to be followed strictly. The relevant part is reproduced below:-- 64 The following principles emerge with regard to Section 164 Cr.P.C.: (i) the provisions of Section 164 Cr.P.C. 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 Cr.P.C. 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 (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 persons on such a statement. 37. (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 persons on such a statement. 37. Now, let us see how far the above directions are followed in the case under consideration. A careful perusal of evidence on record as well as the orders passed by the Magistrate reveals that the accused was taken into police custody on 16.04.2002. He was produced before the Magistrate only on 20.04.2002 at about 10.45 a.m.. On his production before the Magistrate, the learned Magistrate gave him necessary instructions/warning at about 10.45 a.m.. and thereafter, he recorded his confession at about 4.00 p.m.. 38. The above revelations firmly demonstrate that learned Magistrates did not strictly follow the instructions rendered in Section 164 Cr.P.C. as well as in the decisions aforementioned. In our considered opinion, the accused ought to have been given more time, more so, when he was produced before the Magistrate after being detained in police custody for about 5 days. 39. Since, the learned Magistrate did not follow the dictum of law in recording the confession under consideration and since the Magistrate had hardly given 5 hours time to have reflection on the warnings rendered to him-----although--before being brought to the Magistrate, he was kept in police custody for about 5 days, we are constrained to hold that confession made by accused cannot be said to be voluntary one and as such, it cannot be relied on in founding a verdict of guilt against him. 40. We may also note here that the learned Magistrate recorded the demeanor of the accused person while recording his confession. It is found from the observations made by the learned Magistrate in Ext. 11 (confessional statement of the accused) that the accused was smiling without any reason while confessing his guilt Such demeanor, in our considered opinion, also raises question as to the mental condition of the accused while he was making the confession in question. 41. It is found from the observations made by the learned Magistrate in Ext. 11 (confessional statement of the accused) that the accused was smiling without any reason while confessing his guilt Such demeanor, in our considered opinion, also raises question as to the mental condition of the accused while he was making the confession in question. 41. In view of above, we are of the opinion that prosecution could not prove that on the night in question, the accused had killed his wife and three daughters beyond all reasonable doubt and as such, we are to hold that prosecution could not prove the charge under Section 302 IPC against the accused person beyond all reasonable doubt and as such, learned trial Court ought to have acquitted him on giving the benefit of doubt. 42. Consequently, the judgment rendered by the trial Court is found unsustainable in law and same is liable to be set aside. 43. Accordingly, while allowing the appeal, we set aside the judgment which is impugned in this appeal." 44. The accused is acquitted of offence under Section 302 IPC and he be released forthwith if he is not required in connection with any other case. Return the LCR.