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2014 DIGILAW 1053 (GAU)

Rangti Murmur v. State of Assam

2014-12-11

C.R.SARMA, P.K.SAIKIA

body2014
This appeal is directed against the judgment dated 16.12.2010, passed by learned Sessions Judge, Dibrugarh in Sessions case No. 82/2005 convicting the appellant herein of offence u/s 302 IPC while acquitting other accused person namely, Suren Majhi of offence u/s 302 IPC and sentencing him to imprisonment for life and to pay fine of Rs. 1,000/- in default R.I. for another 6 (six) months. 2. Being aggrieved, Smti. Rengti Murmur preferred this appeal citing several infirmities in the judgment under challenge. 3. We have heard Mr. R. K. Bharali, learned Amicus Curiae appearing for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., appearing for the State respondent. 4. The brief facts necessary for disposal of the present appeal, in short, are that on 07.08.1994 around 7 a.m. one Maku Sabar, brother of the informant Hanu Sabar was ploughing in his field. Around the same time, accused Smti Rengti Murmur and her son Suren Majhi (herein after referred to as accused persons) came to such place, armed with pruning knives etc., and started attacking the aforesaid Maku Sabar with the weapons in their hand inflicting several wounds on his person which occasioned his instantaneous death at the place of occurrence itself. 5. An FIR in that connection on being lodged by his brother Sri Hanu Sabar with O/C, Chabua Police Station, O/C Chabua Police Station registered a case vide Chabua Police Station, Case No. 87/1994 u/s 302/34 of the IPC and ordered investigation. On being so entrusted with the investigation, the Investigating Officer (in short 'I.O') visited the place of occurrence, held inquest on the dead body, sent the same to hospital for post mortem examination. 6. During the course of investigation, I.O. also arrested accused Smti. Rengti Murmur, seized the pruning knife on the strength of seizure list Ext. 2 and examined the witnesses, did other needful and on the conclusion of investigation, he submitted charge sheet u/s 302/34 of the IPC against Smti. Rengti Murmur u/s 302/34 IPC showing accused Suren Majhi as absconder in such a charge sheet. 7. The Magistrate before whom the charge sheet was so laid secured the attendance of accused persons so charge-sheeted by the I/O and committed the case to the court of Sessions since the offence u/s 302 IPC is exclusively triable by the court of Sessions. 7. The Magistrate before whom the charge sheet was so laid secured the attendance of accused persons so charge-sheeted by the I/O and committed the case to the court of Sessions since the offence u/s 302 IPC is exclusively triable by the court of Sessions. After commitment of the case and on hearing the learned counsel for the parties, the learned Sessions Judge framed charge u/s 302 IPC against the accused persons and charge, so framed, on being read over and explained to accused persons, they pleaded not guilty and claimed to be tried. 8. During trial, the prosecution has examined as many as 5 witnesses including the informant and the Medical Officer who conducted the autopsy on the dead body. The statements of accused persons were recorded in accordance with the provisions of section 313 Cr.P.C. On being required, accused persons, however, declined to adduce any evidence on their own. 9. On conclusion of trial and on hearing the arguments, advanced by the learned counsel for the parties, learned Sessions Judge while acquitting Suren Majhi of offence u/s 302 IPC, convicted his mother Smti. Rengti Murmur of such offence and sentenced her punishment as aforesaid. It is that judgment which has been assailed in this present appeal. 10. Mr. R. K. Bharali, learned Amicus Curiae appearing for the appellant submits that judgment, under challenge, is unsustainable in law for reasons more than one. In that connection, it has been pointed out that since the alleged incident was admittedly not seen by any of the PWs, examined in connection with the case aforementioned, the judgment of the trial court is basically founded only on the extra judicial confessions of the accused Smti. Rengti Murmur. 11. It has been argued that extra judicial confession is a weak type of evidence and no reliance can be placed on such extra judicial confession unless such extra judicial confession is supported on material points by the independent witnesses. However, in the present case, it is doubtful if the accused/appellant had ever made any confession, as alleged by the prosecution. This makes the very foundation of entire prosecution case profoundly shaky. 12. In support of his contention the learned Amicus Curiae has relied on the decision of Apex Court in the case of Pancho Vs. State of Haryana reported in (2011) 10 SCC 165 . This makes the very foundation of entire prosecution case profoundly shaky. 12. In support of his contention the learned Amicus Curiae has relied on the decision of Apex Court in the case of Pancho Vs. State of Haryana reported in (2011) 10 SCC 165 . The relevant part is reproduced below :- “16.The extra-judicial confession made by A-1, Pratham is the main plank of the prosecution case. It is true that an extra-judicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record. In Gopal Sah v. State of Bihar1 this Court while dealing with an extra-judicial confession held that an extra-judicial confession is on the face of it, a weak evidence and the courts are reluctant, in the absence of a chain of cogent circumstances, to rely on it for the purpose of recording a conviction. We must, therefore, first ascertain whether the extra-judicial confession of A-1, Pratham inspires confidence and then find out whether there are cogent circumstances on record to support it.” 13. That apart, even if one assumes for the sake of argument for a moment that the accused Smti. Rengti Murmur confessed her guilt, yet then, there is absolutely nothing on record to show that such extra judicial confession draws any support from other witnesses on the material points as required under the law. Quite contrary to it, persons who reportedly claimed to have heard accused making extra judicial confession tendered evidence on such confessions which contradict one another on some very fundamental aspects. Such infirmities, now, require this court to harbor a serious doubt about authenticity of evidence of PW 1 and PW 2. 14. The further case of the learned Amicus Curiae was that though PW 1 and PW 2 claimed that they met accused Smti. Rengti Murmur in front of Bungalow of the Garden Manager soon after the incident and took her to the police station yet such evidence, rendered by PW 1 and PW2, on the point of their taking accused person to the police station is found to be incongruous and contradictory and as such, no reliance can be placed on their testimony that they met accused Smti. Rengti Murmur just after the incident in question and took her to the police station. 15. Rengti Murmur just after the incident in question and took her to the police station. 15. The prosecution also claims that the deceased was hacked to death by planting very many knife blows on the victim. However, though PW 2 claims to have seen the aforesaid knife being seized by police, yet, in his evidence, he is also found saying that the knife which was produced before him during the course of trial was not the knife which was seized by police during the course of investigation on the strength of seizure list Ext.2. 16. Learned Amicus Curiae further says that when police seized the said knife on the strength of seizure list Ext.2, PW2, on being required by police, put his signature on blank paper and not on a fully prepared seizure list. Such evidence of PW 2, on the point of seizure of the weapon of offence, has again made the prosecution case more and more doubtful which, in turn, requires this court to overthrow the entire prosecution case. 17. Learned Amicus Curiae has further pointed out that two persons, namely, Nathu Sabar and Umesh Sabar who reportedly saw the incident under consideration were not examined and no reason was assigned as to why such vital witnesses were not examined. Non examination of such vital witnesses and that too, without assigning any reason whatsoever is fatal to the prosecution case. 18. It is also the case of learned Amicus Curiae that the pruning knife allegedly used in killing the deceased was strained with blood but same was not sent to Forensic Expert to ascertain if there was any blood on such pruning knife or if so, whether such blood belonged to the deceased. Since it was not done, it raises a serious doubt about the veracity of the case under consideration and it only requires this court to give the accused persons the benefit of doubt. 19. In respect of aforesaid contention, learned Amicus Curiae has relied on a decision of this court in the case of Krishna Kanta Khodal and Anr. Vs. State of Assam reported in (2011) (2) GLT 308. “(38) The prosecution also attributes the recovery of the head of the deceased on 14.3.97 at the instance of the appellant No. 1 as showing complicity of the appellant No. 1 in the offence. Vs. State of Assam reported in (2011) (2) GLT 308. “(38) The prosecution also attributes the recovery of the head of the deceased on 14.3.97 at the instance of the appellant No. 1 as showing complicity of the appellant No. 1 in the offence. According to PW-11, the police had brought the appellant No. 1 in a vehicle and he also joined them while they were proceeding towards the paddy field. He stated that appellant No. 1 had shown a human head in a nullah and further stated that many people had already gathered at the place where the head was lying. In cross-examination, he clarified that he was shown the head by the police. P.W. -11 also stated that police had seized a digging hoe and a dao in the paddy field. PW-12, on the other hand, stated that the appellant No. 1 had produced a dao to the police from the paddy field and at that point P.W.-11 was also present. Both the P.W. 11 and P.W.-12 are witnesses to the Exhibit-4, P.W.-12, however, does not even make a mention about the recovery of the head. He also does not depose about the production of a hoe by the accused. What is intriguing is that the P.W. -9 had deposed that the police had seized a digging hoe and a dao from the house of the elder brother of the appellant No. 2. He also makes a reference to the presence of the appellant No. 1 at the time of such seizure. He is also shown as a witness to the seizure list, Exhibit-4. These glaring inconsistencies and contradictions with regard to recovery of dao and hoe cannot be reconciled. The dao and hoe are implements which are, otherwise, very commonly used in day to day life of the villagers. There was no attempt on the part of the prosecution to have seized articles examined by the Forensic Science Laboratory to establish that these implements had been used in the commission of the crime. With regard to head, we only have the statement of PW-11, apart from the evidence of PW-17. PW-17 stated that the head was recovered at the instance of the appellant No. 1 from a pond. There was a huge difference between a nullah and a pond. With regard to head, we only have the statement of PW-11, apart from the evidence of PW-17. PW-17 stated that the head was recovered at the instance of the appellant No. 1 from a pond. There was a huge difference between a nullah and a pond. It is also significant that in the confessional statement which was recorded on 18.3.97 (Exhibit-5), the appellant No. 1 did not say that a digging hoe, a dao and the severed head were recovered at his instance by the police in the paddy field. Appellant No. 1 in the statement recorded under section 313 Cr.P.C., had stated that a dao and a hoe were seized from the house of the elder brother of the appellant No. 2. P.W.-9 who deposed in similar line, was categorical that he did not know who had taken out the dao and the hoe. The Investigating Officer had also not recorded the statement of the appellant No. 1 with regard to leading to discovery.” 20. All those revelations, according to Learned Amicus Curiae, make the entire prosecution case enormously doubtful which shatter the very basis of prosecution case requiring this court to acquit the accused person of offence u/s 302 IPC on setting aside the judgment of the trial court which is questioned in the present appeal. 21. On the other hand, learned Addl. P.P. strenuously submits that alleged infirmities, pointed out by the learned Amicus Curiae, questioning the judgment under challenge or for that matter prosecution case is either insignificant or hardly exist. Being so, such allegations are to be brushed aside and the present appeal needs to be dismissed. 22. To support her aforesaid contention, she argues that learned court below had rightly accepted extra judicial confessions which accused Smti. Rengti Murmur had made before the PWs since such extra judicial confessions are found to be voluntary and truthful which again draw unqualified support from independent sources on material points, the evidence of medical officer in particular. She, therefore, urges this court to dismiss the appeal. 23. We have considered the rival submissions having regard to the judgment under challenge and the evidence on record. But before we could proceed further, let us consider the evidence of Doctor who conducted the autopsy on the dead body at hospital on 07.08.1994. He is Dr. R. Chaliha ( PW 3). 23. We have considered the rival submissions having regard to the judgment under challenge and the evidence on record. But before we could proceed further, let us consider the evidence of Doctor who conducted the autopsy on the dead body at hospital on 07.08.1994. He is Dr. R. Chaliha ( PW 3). His findings are as follows: Multiple incised wounds in the left arm and forearm cutting the bones measuring 8 X 2cms, 6 X 2cms, 4 X 1cms, 7 X 1 cms and 11 X 2cms. 1. One incised wound over the right elbow joint cutting it completely measuring 20 X 8cms. 2. Once incised wound on the left side of the neck in the middle part measuring 11 x 2 cms cutting the oesophagus and trachea completely. 3. An incised wound over the left shoulder measuring 8 X 2 cms and muscle deep. 4. 3 Nos. of incised wound present over the back on the left side in the thoracic wall measuring 8 x 2 cms 10 X 2cms and muscle deep. 5. In thorax- Trachea was cut. In abdomen aesophagus was cut. In the Cranium and Spinal Canal : An incised wound over the left parietal scalp measuring 11 X 2 cms cutting the bone. In the opinion of PW 3, death was due to shock and hemorrhage and the death resulted from the ante mortem injuries caused by heavy sharp weapon. Injuries are homicidal in nature. 24. The evidence of doctor (PW-3) reveals that the deceased died a homicidal death having sustained several cut injuries which were inflicted by heavy sharp weapon. According to PW 3, the death of the deceased occurred on or about 07.08.1994. Now, it needs to be known as to how the deceased met his death on or about 07.08.1994. In that connection, we find it necessary to have a look at the evidence of PWs, more particularly, PW 1 and PW 2. 25. In his evidence, PW 2, Sri Kunwar Majhi states that one day, he came to know from informant Hanu Sabar that appellant and her son Suren Majhi killed his father subjecting him to a barrage of assault with pruning knife. On getting such information, he went to the P.O., and found that deceased lying dead there. He immediately reported the matter to the Manager of the Garden. On getting such information, he went to the P.O., and found that deceased lying dead there. He immediately reported the matter to the Manager of the Garden. Soon, thereafter, he also met accused Smti Rengti Murmur in front of the Bungalow of the Manager of the Tea Garden. 26. On his quarry, Rengti Murmur told him that “I have cut Maku”. At that point of time, Rengti was armed with pruning knife. Thereafter, he took Rengti to police station in an Ambulance and handed her over to police. In the police station, the I.O. seized a pruning knife from the possession of the accused person on the strength of seizure list Ext. 2. 27. In his cross examination, he admitted that he did not witness the incident in question. According to him, police obtained his signature in a blank paper. He further admitted that the pruning knife which was seized by police during investigation of the connected case was not the knife which was shown to him by the prosecution during trial. 28. PW 1 Sri Hanu Sabar is the brother of the deceased. PW 1 deposes that one day, in the morning, he came to know that Rengti Murmur and her son cut and killed his brother Maku while the deceased was ploughing in his filed. When he came to the field, he saw that Maku lying dead in his own land. After killing his brother, accused persons left such place. Thereafter, he started proceeding towards the police station. On the way, he met Rengti who was then armed with a pruning knife. 29. He then went to the police station taking accused Rengti with him and lodged an FIR with O/C, Chabua police station which he proved as Ext 1 (1). According to him, the incident occurred for a dispute over a plot of land. In his cross examination, he states that he did not witness the incident in question. In his cross examination, he further states, accused Rengti confessed to have killed the brother of the PW1. 30. The other two witnesses on whom the prosecution places reliance are Sri Ashok Sabar (PW 4) and Rajendra Chawra (PW 5). According to PW 4, on getting the information from Umesh Sabar, he came to the place of occurrence and found his brother lying dead. 30. The other two witnesses on whom the prosecution places reliance are Sri Ashok Sabar (PW 4) and Rajendra Chawra (PW 5). According to PW 4, on getting the information from Umesh Sabar, he came to the place of occurrence and found his brother lying dead. Umesh Sabar told him that deceased was killed by Rengti and her son while the former was ploughing in his field. Later on, police came to such place and conducted an inquest on the dead body. 31. On the other hand, PW 5 deposes that on the fateful day in the morning, he was ploughing in his field. During such time, one Raju Orang came to him and told him that Maku Sabar (deceased) was lying dead in his field. He immediately rushed to such place and found Maku lying dead at the place of occurrence. In his cross examination, he admitted that he did not witness the incident aforementioned. 32. Above being the evidence, let us see how far such evidence makes out the allegations brought against the accused person. PW 2 clearly deposes that on being informed about the alleged incident, he came to the place of occurrence and saw the deceased lying dead there with injuries on his body. When he went to the Bungalow of the Manager to inform the later about the incident aforementioned, he found accused Rengti just in front of the Bungalow of the Manager of the garden. 33. Record reveals that when PW2 enquired the accused person as to how the deceased met his death, Rengti confessed to have killed him. Though, PW 2 was cross examined nothing did emerge there-from to show that his evidence that accused Rengti confessed her guilt cannot be /should not be believed for any reason whatsoever. Therefore, I am of the opinion that accused Rengti did make a confession and such confession is voluntary and truthful. 34. In his examination in chief, PW 1 claims to have met accused Rengti just in front of the Bungalow of the Manager little after the alleged incident. But then, he did not utter any word about accused making a confession about her killing the deceased. However, in his cross examination, he unambiguously states that accused confessed her guilt. 34. In his examination in chief, PW 1 claims to have met accused Rengti just in front of the Bungalow of the Manager little after the alleged incident. But then, he did not utter any word about accused making a confession about her killing the deceased. However, in his cross examination, he unambiguously states that accused confessed her guilt. Such evidence rendered PW 1 lends more credence to the testimony of PW 2 that the accused confessed her guilt before him moment after the incident in question. 35. Such evidence of PW 1 also shows that confession which the accused made before the PW 1 and PW 2 are voluntary and truthful since the accused Rengti Murmur confessed her guilty to those two witnesses without any compulsion, coercion, threat or inducement. Rather, all materials available on record show that she chose to make such a confession on her own. 36. Both PW 1 and PW 2 state that they met the accused Rengti soon after the alleged incident when she was still yielding a pruning knife. It is also in their evidence that they met the accused person just in front of the Bungalow of the Manger moments after the alleged incident. Such evidence also remains almost undisturbed despite PWs being subjected to cross examined. 37. Such undisturbed evidence of those two witnesses that they found the accused Rengti with a pruning knife just after the alleged incident, and that too at a place not far away from the P.O., in the fact and circumstance of the present case, lends more support to the claim of PW 1 PW 2 that accused confessed to have killed the deceased on the day in question in the morning. 38. According to PW 2, police seized a pruning knife at the police station itself on being produced by accused Rengti Murmur. Such evidence finds supports from Ext 2, the seizure list, which shows that a pruning knife was seized by police on being produced by accused person in connection with Chabua P.S. Case No. 87/1994 on 07.08.1994 and such seizure was made at police station itself. 39. Seizure of knife at police station on the day of incident in the morning itself, from the accused persons is found to be totally in the line of stories told and retold by witnesses during the course of investigation. 39. Seizure of knife at police station on the day of incident in the morning itself, from the accused persons is found to be totally in the line of stories told and retold by witnesses during the course of investigation. Such seizure, in the fact and circumstance of the case, shows that accused was the person who killed the deceased at the P.O., on 07.08.1994 in the morning. 40. Before we proceed further let us see if the confession can be recorded on the basis of extra judicial confession. It is a settled law that extra judicial confession can be relied on. But since it is weak evidence, courts are reluctant a record a verdict of conviction on such confession alone. In fact, courts always insist for some corroboration on materials points from some independent quarter. The decision of Apex Court in the case of Panchu (supra) makes such position clear. 41. In our instant case, the doctor having examined the dead body of the deceased found him sustaining multiple injuries being caused by heavy sharp weapon. We have found that accused was found with a pruning knife in her hand in front of the Managers Bungalow little after the alleged incident for which she was taken to police station where the police seized the said pruning knife. The above evidence remains undisturbed despite PW 1 PW 2 being subjected to cross examined. 42. We have already found that accused confessed to have cut and killed the decease at the place of occurrence on the morning of 07.08.1994. There is undeniable evidence to show that accused Rengti Murmur was found with a pruning knife at a place not far from the place of occurrence little after the alleged incident. The doctor also found that deceased died on sustaining injuries inflicted by heavy sharp weapon. All these, in our opinion, gave full support to the confession, made by accused Rengti before the PW 1 PW2 PW little after the alleged incident. 43. It may be stated that the police too seized a pruning knife from the accused person when she was taken to the police sometime after the incident in question. Seizure of pruning knife from the accused persons, and that too, sometime after the alleged incident again serves to show that the confession which the accused had made to the PW 1 and PW 2 is truthful. 44. Seizure of pruning knife from the accused persons, and that too, sometime after the alleged incident again serves to show that the confession which the accused had made to the PW 1 and PW 2 is truthful. 44. It is worth noting here that PW 1 and PW 2 found the accused in front of Managers Bungalow, not far away from the place of occurrence little after the incident aforesaid , and that too armed with pruning knife which was evidently seized by police on the strength of Ext 2. In our opinion, being found the accused with pruning knife at the place of occurrence, and that too little after the alleged incident, become piece of evidence admissible u/s 6 of the Evidence Act and such evidence further fortifies the claim of PW 1 and PW 2 that accused admitted to have killed the deceased on the eventful morning. 45. We have already found that the deceased died a homicidal death on the morning of 07.08.1994. The evidence of Doctor shows that the deceased sustained a large number wounds being inflicted with heavy weapon with sharp edge and most of those injuries were enormously grievous in nature and they were found inflicted on very many vital part of the body which , as we have already found , occasioned the instantaneous death of the deceased. 46. There is nothing on record to show that the deceased had done anything which invited such brutal and atrocious response from the accused person. These are all prolific testimonies to the fact that the accused cut and killed the deceased with the intention of killing him. Being so, in our firm opinion, the accused is guilty of offence U/s 302 IPC and as such, she is liable to be convicted of offence under section302 IPC. 47. The prosecution case, however, came under sharp criticism for several reasons. It is alleged that the claim of accused making an extra judicial confession is doubtful. However, our forgoing discussion, now establishes that such an allegation does not hold any water. We have already found from the evidence of PW 1 and PW 2 that accused Rengti Murmur did make a confession admitting that she cut and killed the deceased on the morning of 07.08.1994. 48. It is also alleged that the claim of seizure of knife is doubtful. We have already found from the evidence of PW 1 and PW 2 that accused Rengti Murmur did make a confession admitting that she cut and killed the deceased on the morning of 07.08.1994. 48. It is also alleged that the claim of seizure of knife is doubtful. However, if one reads the evidence of PW 2 in the light of averments made in Ext 1, Ext 2 as well as the testimony of PW 1, he would find that PW 1 and PW 2 met the accused Rengti in front of the Managers Bungalow just after the alleged incident when she was still yielding a knife in her hand. 49. Those two PWs therefore, took the accused aforesaid to the police Station where the police seized the knife on being produced by accused person. Such revelation again shows that there is no substance in the allegation that the weapon of offence was not seized from the accused person and as such, such an allegation too needs to be rejected. 50. The appellant claims that the evidence of PW 1 and PW2 that they took the accused person to police stations is inconsistent and contradictory. In that connection, it has been stated that when PW 1 claims that he took the accused to the police station, PW 2 too claims to have taken the accused to the same place after the incident in question. In other words, both PW 1 and PW 2 claimed to have taken the accused to the police station which is totally incredible, according to learned Amicus Curiae. 51. However, such argument is without any substance. When one reads the evidence of PW 1 and PW 2 in between the lines, he would find that PW 1 and PW 2 met the accused person in front of the Bungalow of the Manger just after the alleged incident and they met her almost simultaneously. Therefore, the alleged infirmities in the evidence of PW 1 and PW 2, on the point of their taking the accused to the police station exist only in fiction, not in substance. 52. The learned Amicus Curiae again alleged that two witnesses namely Umesh Sabar and Nathu Sabar who reportedly witnessed such an incident were not examined by the prosecution and that too without assigning any reason whatsoever. 52. The learned Amicus Curiae again alleged that two witnesses namely Umesh Sabar and Nathu Sabar who reportedly witnessed such an incident were not examined by the prosecution and that too without assigning any reason whatsoever. This requires this court to doubt the entire prosecution case as required under section 114 (g) of the Evidence Act. 53. Such an argument too is devoid of any substance. Though PW 1 deposes that he came to know about the incident from one Nathu Sabar and although PW 4 states that he came to about such incident from Umesh Sabar, there is nothing on record to show that Umesh Sabar and Nathu Sabar were the eye witnesses of the incident and therefore, non examination of those witnesses is not at all fatal. 54. The prosecution claims that I/O was not examined and it has caused prejudice to the accused person. On the perusal of the judgment under challenge, we have found that examination of the I/O was dispensed with, with the consent of both the parties. That apart, learned trial court rightly held that there is no necessity of examination of such witnesses in view of evidence on record. 55. In view of our forgoing discussion, we are of the opinion that prosecution has successfully proved the charge under section 302 IPC against the accuse person and therefore, court below has rightly convicted him under aforesaid provisions of law. Situation being such, judgment under challenge invites no interference and therefore, present appeal is dismissed. 56. Return the LCR forthwith. 57. We deeply appreciate the assistance rendered by Mr. R. K. Bharali, learned Amicus Curiae in disposing the present appeal. The State is, therefore, directed to pay Mr. R. K. Bharali, learned Amicus Curiae Rs. 7,000/- as being his professional fee.