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Gauhati High Court · body

2014 DIGILAW 578 (GAU)

HARAKANTA BORO v. STATE OF ASSAM

2014-05-29

B.K.SHARMA, M.R.PATHAK

body2014
Judgment B.K. Sharma, J. 1. Boko P.S Case No.21/1997 was registered u/s 346 IPC on the basis of the FIR that was lodged by the PW-1 to the effect that since August, 1996 her son i.e. the deceased was untraceable. It was stated in the FIR that the accused/appellant along with one Saraswati Bibi had confined the deceased as per the information gathered from the persons indicated in the FIR. The FIR was lodged on 11.02.1997, which was nearly six months after the deceased became untraceable. 2. After lodging of the FIR and during investigation, the purported dead body of the deceased was recovered from a jungle where the body was buried. In fact a skeleton was recovered. The skull was sent for Forensic Science Laboratory examination and the prosecution relied upon the report furnished by the Forensic Science Laboratory authority. As per the said report, the skull was that of the deceased. 3. Charge against the accused/appellant along with Saraswati Bibi having been framed u/s 302/201 IPC, they were sent for trial. The case being exclusively triable by the Court of Sessions, the leaned Judicial Magistrate 1st Class, Kamrup, committed the case to the Court of Sessions for trial. Accordingly, the case being Sessions Case No.121 (K)/2004 was registered. During trial, the prosecution examined 14 witnesses as PW-1 to PW-14. The defence also examined one witness as DW-1. The accused/appellant was examined u/s 313 Cr.P.C. The learned trial Court having convicted the accused/appellant on the basis of the circumstantial evidence coupled with the alleged confessional statement u/s 164 Cr.P.C, he has approached this Court by filing the instant appeal. Be it stated here that the other accused, namely, Saraswati Bibi has been acquitted on benefit of doubt. 4. Although Ms. B. Bhuyan, learned counsel was appointed as Amicus Curie to render assistance to the Court as the appeal has been preferred from jail, but Mr. B.P. Sinha, learned counsel has entered appearance on behalf of the accused/appellant on the basis of the authorisation made on his behalf by the accused/appellant. 5. We have heard both Mr. Sinha and Ms. B. Bhuyan, learned counsels representing the accused/appellant. We have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 6. Referring to the entire evidence on record including the confessional statement relied upon by the prosecution and accepted by the learned trial Court, Mr. 5. We have heard both Mr. Sinha and Ms. B. Bhuyan, learned counsels representing the accused/appellant. We have also heard Mr. D. Das, learned Additional Public Prosecutor, Assam. 6. Referring to the entire evidence on record including the confessional statement relied upon by the prosecution and accepted by the learned trial Court, Mr. Sinha , learned counsel for the accused/appellant submits that there is no evidence so as to convict the accused/appellant. According to him, as in the case of the other accused person namely Saraswati Bibi, the accused/appellant is also entitled to benefit of doubt. Mr. D. Das, learned Additional Public Prosecutor, Assam on the other hand submits that the circumstantial evidence which led to conviction of the accused/appellant coupled with the confessional statement of the accused/appellant having lead to the conviction of the accused/appellant, no interference is called for in respect of the impugned judgment of conviction. 7. We have given our anxious consideration to the submissions made by the learned counsels for the parties and have also considered the entire materials on record. The learned trial Court has convicted the accused/appellant u/s 302/201 IPC and has sentenced him to imprisonment for life with a fine of Rs.10,000/- and in default, rigorous imprisonment for another one year for the offence u/s 302 IPC. As regards the offence u/s 201 IPC, the accused/appellant has been sentenced to undergo five years rigorous imprisonment with a fine of Rs.5000/- and in default, rigorous imprisonment for another six months. Both the sentences are to run concurrently. 8. PW-1 is the informant, who in her deposition while narrating the incident referred to one Ismail Ali (PW-4), who had allegedly informed her about the killing of the deceased by the accused/appellant and said Smti Saraswati Bibi. She has stated in her evidence that PW-4 had informed her that he had heard about the death of the deceased from one Karna Das (PW-2). In her cross examination, she admitted that she did not know the place of occurrence and also did not have any personal knowledge about the killing of the deceased. 9. PW-2 in his deposition stated about the purported reporting of the accused/appellant about killing a person three months back. In cross examination, he admitted that the accused/appellant did not tell him anything about date, place and committing the crime and also as to whom he had killed. 10. 9. PW-2 in his deposition stated about the purported reporting of the accused/appellant about killing a person three months back. In cross examination, he admitted that the accused/appellant did not tell him anything about date, place and committing the crime and also as to whom he had killed. 10. PW-3 also stated that the accused/appellant had disclosed about killing of a person, but he did not disclose the name of the person, whom he had killed. As per the testimony of this witness, he was under the influence of liquor. 11. PW-4, whom the PW-1 in her statement referred to stated in his evidence that PW-2 had informed him that the accused/appellant had killed the deceased. 12. PW-5 in his deposition stated that he had come to know from Ismail that the deceased was killed by some Bodo people. 13. PW-6 is the witness, who had proved the Forensic Science Laboratory report, which is reproduced below:- “(1) One dirty and complete skull with decomposed flashy deposit at places which is marked as Bio 40; (2) One coloured full photograph of the deceased Mamud Ali which is marked as Bio-41 for examination and comparison. It is opined by PW-6 that- (1) Ext.No.Bio-40 marked by him could be identified as human in origin and derived from one adult male individual. (2) The age of the deceased at the time of death could be ascertained in between 35 to 40 years (3) The distances between different anatomical landmarks and their ration of Ext.No.Bio-40 P1 (Marked by him) tally to the distances and ratio of the exhibit No.Bio 41 P1 revealed that the skull in questioned could have been the skull of the deceased Mamud Ali where photograph had been analyzed. Ext.1 is the detailed report. Ext.2 is also the detailed report consisting of 3 sheets. M.Ext.2 is the photograph of the deceased and M.Ext.3 is the superimposition photograph.” 14. PW-7 is the Investigating Officer, who in his evidence generally stated about the investigation that was carried out. He also proved the Ext. 11 statement of the accused/appellant made u/s 161 Cr.P.C. In his cross examination, he admitted that the skull was not identified by anybody and that he did not prepare any sketch map of the place where the deceased was killed. He also stated that altogether eight persons were arrested in connection with the case. He also proved the Ext. 11 statement of the accused/appellant made u/s 161 Cr.P.C. In his cross examination, he admitted that the skull was not identified by anybody and that he did not prepare any sketch map of the place where the deceased was killed. He also stated that altogether eight persons were arrested in connection with the case. PW-8 is another Investigating Officer, who had collected the report from the Forensic Science Laboratory and submitted the charge sheet against the accused persons. As per his evidence, he collected the super imposition report from the Forensic Science Laboratory and after completion of the investigation, submitted charge sheet (Ext.13). 15. PW-9 is the SDC, who in his deposition stated that the accused led the investigating authority to the particular village and took them to the forest land where they exhumed a skeleton in presence of police and others including the accused. However, in his cross examination, he denied that the accused/appellant led the police to the place of recovery of the skeleton. 16. PW-10 is the Investigating Officer, who had completed the remaining investigation of the case and sent reminder to the Director of Forensic Science Laboratory for furnishing of the report. PW-11 is the Judicial Magistrate, before whom the accused/appellant allegedly made the confessional statement. As per the version of this witness, the confessional statement was voluntary and the principles relating to making of confessional statement were duly followed. 17. PW-12 Sri Bipul Rabha is the Circle Organizer of Village Defence Party who in his deposition stated that the male accused had shown the place from where the dead body was exhumed. However, in the same breath he also stated that one Ali had shown the place from where the dead body was found. 18. PW-13 is the Associate Professor in the Department of Forensic Medicine, GMCH, who conducted the post-mortem examination of the deceased. He proved the said report which opined that the cause of death was due to haemorrhage and shock resulting from the injuries sustained on the right leg and head. As per the report, the injuries were ante-mortem and homicidal in nature. 19. PW-14 is another Sub Inspector of police, who in his deposition stated that he could not complete the investigation as he was transferred from the place. 20. As per the report, the injuries were ante-mortem and homicidal in nature. 19. PW-14 is another Sub Inspector of police, who in his deposition stated that he could not complete the investigation as he was transferred from the place. 20. DW-1 in his deposition stated that Saraswati Bib i.e. the other accused is his wife and that he had married her in 1971. He also stated that their son was aged about 30 years. 21. It is on the basis of the above evidence generally discussed, the learned trial Court has convicted the accused/appellant. While doing so, the learned Trial Court has taken into account the confessional statement of the accused/appellant and also the circumstantial evidence. For a ready reference, the confessional statement of the accused/appellant is reproduced below:- “I am living at village Janglakhuli under Boko Police Station. I knew Saraswati since long. She is oja by profession. Saraswati went to our village to attend a patient. Saraswati generally used to stay in the houses of the patients to whom she attends. Saraswati stayed for about a week in our village. The occurrence took place about 4/5 months back. I cannot remember the date of occurrence. On the day of occurrence deceased Mamud Ali came to our village Janglakhuli in search of Saraswati and wanted to take her with him. He caused panic in our minds disclosing that he has possessed pistol and dagger and forced Saraswati to go with him. But Saraswati refused to go with him. We have seen Saraswati since long. We regarded Saraswati as our elder sister. While the deceased chased and proceeded to Saraswati to take her forcibly with him then myself, Khagen Boro and Padmadhar Boro resisted. The deceased Mamud Ali made a declaration stating that he will be coming by night and will be causing us death by means of pistol. Padmadhar took away Saraswati to his house. We became afraid of the declaration made by the deceased Mamud Ali and at that time it became night. On being afraid of we decided it will be better to kill Mamud Ali. Then Kamaleswar Boro, Juran Boro, Duleswar Boro, Bipul Boro, Bhuyan Ram Boro, Binanda Boro, Ashini Boro, Kanchiram Boro and Jhuleswar Boro jointly together caused the death of Mamud Ali inflicting blows by means of bamboo lathis. On being afraid of we decided it will be better to kill Mamud Ali. Then Kamaleswar Boro, Juran Boro, Duleswar Boro, Bipul Boro, Bhuyan Ram Boro, Binanda Boro, Ashini Boro, Kanchiram Boro and Jhuleswar Boro jointly together caused the death of Mamud Ali inflicting blows by means of bamboo lathis. I did not assault Mamud dealing lathi blows but I remained present therein with them.” If we go by the aforesaid confessional statement of the accused/appellant, there were altogether nine persons who decided to kill the deceased. The only inculpatory statement in respect of the accused/appellant is that he was also present when the others committed the crime. This aspect of the matter will have to be considered in reference to his categorical statement that he did not assault the deceased. 22. The learned trial Court referring to the aforesaid confessional statement has also dealt with the purported circumstantial evidence. The circumstantial evidence as discussed by the learned trial Court is that the dead body was recovered at the instance of the accused/appellant, who led the police party to the place of recovery. Another circumstantial evidence on which the learned trial Court placed reliance is that some of the witnesses as discussed above had stated that the accused/appellant stated them about killing of a person. It will be pertinent to mention here that in the statement made by the accused/appellant u/s 313 Cr.P.C, he denied having made any confessional statement. 23. As noted above, PW-1 did not have any personal knowledge about the killing of the deceased. In her evidence, she only stated that it was PW-4 who had informed her about killing of the deceased by the accused/appellant. PW-2 in his evidence stated about purported recovery made by the accused/appellant about killing of a person without disclosing the identity of the said person. Similarly PW-3 also stated that the accused/appellant had disclosed about killing of a person, however no identity was disclosed. As noted above, he was under influence of liquor at that point of time. PW-4 is also a reported witness, who in his statement while stating that he did not know the accused/appellant stated that the PW-2 had told him that both Saraswati and the accused/appellant had killed the deceased. 24. As noted above, he was under influence of liquor at that point of time. PW-4 is also a reported witness, who in his statement while stating that he did not know the accused/appellant stated that the PW-2 had told him that both Saraswati and the accused/appellant had killed the deceased. 24. The point for determination is as to whether the aforesaid evidence of the witnesses can be said to be circumstantial evidence leading to the conclusion beyond reasonable doubt that it was the accused/appellant, who had killed the deceased. This aspect of the matter has been considered by the learned trial Court in reference to the purported confessional statement of the accused/appellant, which has been referred to above. 25. In the statement made u/s 164 Cr.P.C, the accused/appellant while stating that about nine persons named in the statement decided to kill the deceased also stated that although he was present, but he did not assault the deceased. Thus, it cannot be said to be a statement in the nature of inculpatory so as to come to the conclusion that because of the said statement it is a case of beyond all reasonable doubt so as to warrant conviction of the accused/appellant. Exculpatory parts of the statement while also have to be taken into consideration, more particularly when the accused/appellant retracted from the said purported confessional statement in his statement made u/s 313 Cr.P.C. As has been held by the Apex Court in Nishi Kant Jha vs. State of Bihar, reported in AIR 1969 SC 422 , when a statement, made by an accused, has both inculpatory as well as exculpatory parts, the Court is to consider as to whether one would exclude the other. A statement cannot be a ‘confession’ unless accused confesses to have committed the crime, which he is alleged to have committed or unless he admits of such facts, which constitute the offence. 26. Although it is the case of the prosecution that it was the accused/appellant who had led to the discovery of the dead body, but as discussed above, it is in the evidence of PW-9 that the accused/appellant did not lead the party to the place of recovery of the skeleton. Moreover, it is also in the evidence of PW-12 that one Ali had shown the place from where the dead body was recovered. 27. Moreover, it is also in the evidence of PW-12 that one Ali had shown the place from where the dead body was recovered. 27. For all the aforesaid reasons, we are of the considered opinion that it cannot be said to be a case of establishing the offence against the accused/appellant based on the circumstantial evidence beyond all reasonable doubt. The other co-accused, namely, Saraswati Bibi has been given the benefit of doubt vide the impugned judgment. Significantly the nine accused persons named by the accused/appellant in his confessional statement were not sent for trial. 28. In view of the above, the appeal succeeds on benefit of doubt. The impugned judgment of conviction dated 07.04.2010, passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No.121(K)/2004 stands set aside and quashed. The accused/appellant shall be set at liberty forthwith, if not wanted in connection with any other case. 29. Registry is directed to send back the Lower Case Record to the Trial Court along with a copy of this judgment and order. 30. While appreciating the service rendered by Ms. B. Bhuyan, learned Amicus Curie, we hereby ordered for payment of hearing fee of Rs.7,500/- to her by the Legal Services Authority.