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2014 DIGILAW 514 (GAU)

Mrinal Barman v. State of Assam

2014-05-12

B.D.AGARWAL, INDIRA SHAH

body2014
JUDGMENT B.D. Agarwal, J. 1. The judgment and order dated 18.08.2010 passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No. 2/2010 convicting the appellant under Sections 302/201 IPC and sentencing him thereby to undergo imprisonment for life with fine of Rs. 5,000/- for his conviction under Section 302 IPC and further rigorous imprisonment for 3 years with fine of Rs. 1,000/- for the offence committed by him under Section 201 IPC has been challenged in this appeal. We have heard Mr. K. Sarma, learned counsel appearing on behalf of the appellant as well as Mr. Z. Kamar, learned Addl. P.P., appearing on behalf of the State of Assam. 2. The prosecution story, in brief, is that one Archana Barman, a young lady, was missing since 11.10.2007. On 13.10.2007, her brother Gonesh Barman lodged an FIR suspecting that his sister might have been killed by some one. On the basis of the said FIR, Kokrajhar P.S. Case No. 297/2007 under Sections 302/201 IPC was registered. 3. During the investigation, one silver chain and blood stained paddy leaves were recovered from a paddy field situated near the house of the informant. On 14.10.2007, the dead body of Archana Barman was exhumed from the land of the accused Mrinal Barman. The accused Mrinal Barman was arrested and a 'Khukri' was recovered from his house at his instance, which was allegedly kept concealed under the roof of his house. Inquest of the dead body was held and it was subjected to post-mortem examination. The accused in presence of villagers and police confessed his guilt. During investigation, Sushil Barman, Balak Barman and Sunil Barman were also arrested. 4. On completion of investigation, police submitted the charge sheet under Sections 301/201 IPC against the accused appellant: Mrinal Barman and prayed to discharge the arrested accused Sushil Barman, Balak Barman and Sunil Barman. The accused-appellant Mrinal Barman pleaded not guilty to the charge framed against him under Sections 302/201 IPC and claimed to be tried. Co-accused Sushil Barman, Balak Barman and Sunil Barman were discharged. 5. In order to prove its case, the prosecution examined altogether 8 witnesses. The statement of accused under Section 313 Cr. P.C. was recorded and thereafter, he was asked to enter into his defence. The accused denied all the allegations levelled against him and pleaded that he was innocent. He did not adduce any evidence in his defence. 5. In order to prove its case, the prosecution examined altogether 8 witnesses. The statement of accused under Section 313 Cr. P.C. was recorded and thereafter, he was asked to enter into his defence. The accused denied all the allegations levelled against him and pleaded that he was innocent. He did not adduce any evidence in his defence. The conclusion of trial, he was convicted and sentenced, as stated earlier. 6. Mr. K. Sarma, learned counsel for the appellant has submitted that: the conviction of the accused by the trial court is based on extra-judicial confession and leading to discovery. The extra-judicial confession of the accused in presence of police, before the villager is not admissible in law. The discovered weapon of assault at the instance of the accused cannot be taken into account for want of disclosure statement of the accused. Moreover, 'Khukri', which was allegedly recovered and seized, was not sent to forensic laboratory for examination of fingers print and blood stain. The chain circumstances appearing against the accused was not conclusive and therefore, the conviction of the accused is liable to he set aside. 7. Per contra, learned Addl. P.P. has submitted that the trial Court rightly convicted the accused appellant. 8. It is well settled law that although a conviction may be based solely on circumstantial evidence, the prosecution must prove all the circumstances and circumstances should be conclusive in nature and conclusive. In the case of Paramjeet Singh @ Pamma vs. State of Uttarakhand, (2010) 10 SCC 439 , it was held as under:- "Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , this Court observed that it is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under: (1) The circumstances from which conclusion of guilt is to be drawn should be fully established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilt; (3) The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 9. The death of the accused Archana Barman was homicidal in nature, is apparent from the post-mortem report. P.W. 1 Dr. Kaushik Das held the autopsy on the dead body of the deceased on 15.10.2007. The dead body was decomposed with multiple injury marks over the body. Doctor found 10 number of stab injury marks in the abdomen all measuring about 3 c.m. x 1 c.m. average. The injuries were caused by means of sharp weapon. One cut mark on feet 3 c.m. x 2 c.m. Nature of cut mark on the right thigh measuring 2 c.m. x 1 c.m. was detected. Intestine mesentery came out of the vagina. Scalps are fallen. Liver was lacerated. Uterus was examined which was normal size and no products found in the uterus. 10. In the opinion of the doctor, the death was due to shock and haemorrhage following multiple stab injuries in abdomen by sharp weapon from the front side, which was anti-mortem and homicidal in nature. During cross-examination, the doctor confirmed that the deceased was not carrying pregnancy. 11. PW-6, Sri Gonesh Barman, is the informant and brother of the deceased. He stated that the accused Mrinal Barman hails from the same village and was well known to him. During cross-examination, the doctor confirmed that the deceased was not carrying pregnancy. 11. PW-6, Sri Gonesh Barman, is the informant and brother of the deceased. He stated that the accused Mrinal Barman hails from the same village and was well known to him. On the date of occurrence at about 7.00 P.M., when he returned home, his mother Renu Bala Barman (P.W. 7) informed him that Archana was missing from the house since evening. He went out in search of his sister but could not trace her out. He went to Kokrajhar in her search, on the next day and returned back home in the evening. On his arrival, he got information that a silver chain of Archana Barman was lying in the paddy field near his house. There was also blood mark in the filed. He went to the spot and saw the silver chain of his sister and blood stained paddy leaves. Thereafter, he lodged the FIR. Police came and seized the silver chain and the paddy leaves in his presence. On the next day, the villagers started searching of the body of Archana Barman. The dead body was exhumed from the land belonging to the accused. Next day, inquest on the dead body was held by the Magistrate in presence of police and witnesses. In the meantime, the accused Mrinal Barman was arrested by the police. He was brought to the place where from dead body of Archana Barman was recovered. The accused confessed his guilt stating that he committed murder and thereafter buried the dead body under the earth. He led the police to his house and a 'Khukri' which was concealed under the roof of his house was discovered at his instance. A spade was also seized from the cowshed of the accused. 12. PW-2, Sri Debojit Barman, stated that the accused Mrinal Barman after his arrest by the police stated that he has kept the 'Khukri' on the bamboo ceiling of his house in a gunny bag. On being asked by police, P.W. 2 mounted the ceiling. The 'Khukri' was recovered and handed over to the police. P.W. 2, further, stated that the accused confessed that he killed Archana with the help of that 'Khukri'. He admitted that at the time of confession by the accused, police personnel were also present. 13. PW-3. Md. Harmuj Ali was a 'Gaonburah' of the village. The 'Khukri' was recovered and handed over to the police. P.W. 2, further, stated that the accused confessed that he killed Archana with the help of that 'Khukri'. He admitted that at the time of confession by the accused, police personnel were also present. 13. PW-3. Md. Harmuj Ali was a 'Gaonburah' of the village. He deposed that Archana was missing from her house and later her dead body was exhumed from the land of the accused where it was kept buried. The accused confessed in present of police and villagers that he killed Archana and concealed the dead body. The accused also disclosed that he has kept the 'Khukri' on the ceiling of his house. The 'Khukri' was recovered at the instant of the accused. Police seized the blood stained paddy leaves and a silver chain from the paddy field in presence of P.W. 3. 14. P.W. 4, Md. Rezak Ali, stated that on suspicion public dug the land amidst the field on the bank of Saru Nadi and recovered the dead body of Archana. On the following day, police seized one 'spade' and a 'Khukri' from the house of the accused. 15. P.W. 5, Md. Amir Ali, was informed about the missing of Archana Barman. Subsequently, he got information that a portion of paddy field was noticed in damage condition. He went there and saw the portion of damaged paddy field. One silver chain was lying there. He and others noticed blood stained paddy leaves. A search was made to find out any dead body there but no dead body was recovered. On the following day, police went to the paddy field. He deposed that at the relevant time, Mrinal's uncle Balak Barman was cutting earth by means of a spade. On being asked by police, he replied that he has been putting earth to block holes made by mice. On the following day, after 'Namaz' of Idd, this witness along with others again attempted to trace out any dead body. They dug the land of the accused where his uncle Balak Barman had blocked the holes, on the previous day and then the dead body of Archana was recovered. Police was informed accordingly. The police came along with accused Mrinal. The accused confessed that he has kept the 'Khukri' on the ceiling of his house after he killed Archana. They dug the land of the accused where his uncle Balak Barman had blocked the holes, on the previous day and then the dead body of Archana was recovered. Police was informed accordingly. The police came along with accused Mrinal. The accused confessed that he has kept the 'Khukri' on the ceiling of his house after he killed Archana. The said 'Khukri' was recovered at the instance of the accused. Police seized the silver chain and blood stained paddy leaves in presence of all the witnesses. One spade which was used in connection with crime was also seized at the instance of the accused. 16. In cross-examination, P.W. 5 admitted that the accused did not lead the police to the place wherefrom the dead body was recovered. He did not notice any blood stained 'Khukri' produced by the accused. However, the accused confessed that he killed the deceased (Archana) and kept the 'Khukri' on the ceiling of his house. Lending support to the evidence of P.W. 5, P.W. 6 (Gonesh Barman) also stated that after recovery of silver chain from the paddy field an effort was made to trace out the dead body of Archana in the surrounding area. At the relevant time, Mrinal's uncle Balak Barman was digging earth on the bank of a drain. Mrinal's father stated that he has been blocking the holes made by mice. Next day, the portion of land where Mrinal's uncle was digging earth was dug and the dead body of Archana was exhumed. 17. It is evident from his evidence that the accused confessed his guilt in presence of witnesses while he was in police custody. P.W. 7 is the mother of the deceased. She stated that her daughter was missing and after 2/3 days of her missing her dead body was recovered from a paddy field. 18. P.W. 8 is the Investigating Officer. Although P.W. 8 stated that place where the dead body was buried was shown by the accused, it appears from the evidence of P.W. 5 and P.W. 6 that the dead body was already discovered by the villagers and thereafter, the accused was brought to the place where he had buried the body. However, 'Khukri' and a 'spade' which were used in commission of crime were seized at the instance of the accused. However, 'Khukri' and a 'spade' which were used in commission of crime were seized at the instance of the accused. P.W. 8 has also stated that video recording was done during the investigation and the video CD cassette was sent to the Court. The said CD cassette was neither exhibited during the trial nor proved. Even P.W. 8 did not examine the CD cassette by playing it. He (P.W. 8) admitted that before discovery of the 'Khukri', no disclosure statement of the accused was recorded. The 'Khukri' was recovered and seized on 18.10.2007. The statement of the accused under Section 161 Cr.P.C. was recorded on 15.10.2007 wherein the accused did not state that he kept the 'Khukri' on the ceiling of his house and the said 'Khukri' was used in connection with commission of crime. 19. The question whether a disclosure statement must be reduced in writing in order to make such a statement admissible in evidence under Section 27 of the Evidence Act, was elaborately dealt with by the Constitutional Bench of this Court in the case of Rajiv Phukan & Another vs. State of Assam, 2009 (2) GLT 414. Paragraphs 24, 26, 27 and 32 of the aforesaid judgment are reproduced as under:- "24. Thus, the recording of a statement of a person under Section 161 in writing is optional for the police officer who investigates a case. It is not, therefore, statutorily mandatory for a police officer to reduce into writing the statement made to him by a person who may be acquainted with the facts and circumstances of a given case. Such a person may be a witness to an offence; such a person may also be the one who has committed the offence. 26. When none of the provisions of the Code of Criminal Procedure or of the Evidence Act makes it mandatory for a police officer to reduce into writing the statement, which an accused may have made, it is not only difficult, but also impossible to hold that a 'disclosure statement' cannot be proved at all if the disclosure statement has not been recorded, or when the written record of the disclosure statement has not been introduced into evidence. 27. What needs to be noted is that in the case of a judicial confession, what an accused might have stated before a Magistrate is provable by the written record. 27. What needs to be noted is that in the case of a judicial confession, what an accused might have stated before a Magistrate is provable by the written record. In the case of an extra-judicial confession, no such written record may be available. In such circumstances, the extra-judicial confession cannot be treated to be wholly inadmissible in evidence merely because of the fact that extra-judicial confession does not stand reduced into writing. Though prudence demands that a Court before acting upon an extra-judicial confession knows as to what exactly the accused person had stated, the fact remains that a Court cannot refuse to bring on record an extra-judicial confession on the ground that no written record as regards the exact words used by the accused in his extra-judicial confession is available. However, the probative value of such a confessional statement will be a question of fact. If, on the basis of the deposition of the witness or witnesses, the Court is in a position to determine as to what exactly the accused had stated or confessed to and if the court believes that the evidence given as regards the fact that an extrajudicial confession had been made by the accused is true, it would not be impermissible for the Court to make use of such a statement even if such a statement has not been reduced into writing. Similar is the situation with regard to a disclosure statement. A disclosure statement is not, as noticed above, statutorily required to be reduced into writing; but prudence demands that when a statement has been made by an accused person, while in the custody of a police officer and the investigating officer intends to act upon the statement, then, the Investigating Officer should record at least that part of the statement which is likely to lead to the discovery of a fact so that a contemporaneous records remains available to prove that the statement as claimed by the investigating Officer had, in fact, been made and the court knows as to what the accused had actually stated and what part or the Court knows as to what the accused had actually stated and what part or portion of his statement had or can be said to have, in fact, led to the discovery of the fact. 32. 32. Addressing itself to the question as to whether an accused must lead the police to the discovery of some material object, in order to apply Section 27, the Apex Court, has replied that on receiving the information it would be for the police officer to take or not to take the accused who has given the information to the spot and if, in a given case, the police officer does not take the accused concerned to the spot, it will have no bearing on the question of admissibility of the information given and/or recovery of material object within the ambit of Section 27. The relevant observations, made on this aspect of law, in Navjot Sandhu (supra), read as under: "There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence." 20. If the Police Officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence." 20. Thus, from the above discussions, it emerges that Section 27 does not provide for writing the information, which may have been given by an accused and therefore, the information can be verbal and also to be proved against the accused who gives the information. 21. In this case, the fact discovered is that a 'Khukri' was recovered from the house of the accused and the said 'Khukri' was used in commission of offence. However, extrajudicial confession of the accused in presence of police officer and villagers is not admissible as per provisions contained in Sections 25 and 26 of the Evidence Act. Section 25 makes it clear that no confession made to the police officer shall be proved as against a person accused of an offence. Similarly, Section 26 provides that the confession made by an accused while in the custody of the police officer cannot be proved against him unless the confession is made in the immediate presence of a Magistrate. While discovery of weapon is admissible under Section 27 of the Evidence Act, the confessional statement of the accused has to be excluded. The fact that the victim Archana was killed and her dead body was buried in the paddy field was already discovered by the witnesses. It is apparent from the evidence of P.W. 5 Md. Amir Ali that the villagers dug the land of the accused where his uncle Balak Barman had blocked the holes on the previous day and the dead body of Archana was recovered. The accused accompanied the police to the place on the following day. If we exclude the inculpatory confessional statement of the accused that it was accused who had killed the deceased, the only piece of incriminating material against the accused is that a 'Khukri' was recovered at his instance. 22. P.W. 5, Amir Ali and P.W. 6 Gonesh Barman deposed that they noticed Balak Barman, uncle of the accused was digging earth in the paddy field. 22. P.W. 5, Amir Ali and P.W. 6 Gonesh Barman deposed that they noticed Balak Barman, uncle of the accused was digging earth in the paddy field. P.W. 5 stated that Balak Barman stated he have been putting earth to block the holes while P.W. 6 stated that father of the accused said that he had been blocking the holes made by mice. It appears from the evidence of P.W. 5 and P.W. 6 that they have attempted to conceal the dead body, as because the dead body was recovered from the place where Balak Barman was digging the earth by means of a spade. The involvement of Balak Barman and father of the accused in commission of crime cannot be ruled out. 23. Learned trial Court referring the inquest report held that there was motive of crime. In the inquest report (Exh. 6) it has been mentioned that the accused had love affairs with the victim and had physical relationship with her. The victim becomes pregnant and the accused asked her to terminate the pregnancy but the victim refused and for this reason she was killed. The Magistrate who held the inquest on the dead body was not examined and therefore, was not subjected any cross-examination. None of the witnesses, nor even the brother and mother of the victim examined by the prosecution, stated anything about the love affairs between the accused with the victim or about the pregnancy of the victim. The post-mortem report does not show that the victim was carrying any pregnancy. Thus, the prosecution failed to establish that there was any motive for commission of offence. 24. The trial Court has relied on the evidence of prosecution witnesses to the effect that the accused told the police and the witnesses that by means of the 'Khukri' which was recovered at his instance, he had killed the victim. We have kept this piece of evidence wholly excluded from the purview of reconsideration, because of the embargo placed by Section 25 of Evidence Act making the said statement which amounts to confession inadmissible on the ground that the said confession which was made in presence of police had not laid to the discovery of any fact. 25. From the above discussions, we find that the chain of circumstance appearing against the accused is not conclusive and complete. 25. From the above discussions, we find that the chain of circumstance appearing against the accused is not conclusive and complete. There are infirmities in prosecution case and the reasonable doubt arises as regard the involvement of uncle and father of the accused in commission of crime. In view of above, the impugned judgment of conviction and sentence passed against the accused by the learned trial Court is liable to be set aside. Accordingly, it is set aside. The accused is acquitted on benefits of doubt and set at liberty forthwith if he is not required by any other case.