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2015 DIGILAW 844 (GAU)

Bilaman Pegu v. State of Assam

2015-07-15

P.K.SAIKIA

body2015
JUDGMENT : This appeal is directed against the judgment and order dated 04.04.2005 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 10(JN)/2003 convicting the appellant Sri Bilaman Pegu (herein after referred to as the ‘accused person’) of offence u/s 395 IPC and sentencing him to suffer imprisonment for 5 (five) years and also to pay a fine of Rs. 5000/- (Rupees Five Thousand) only i.d. R.I. for another 6 (six) months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused person has preferred this appeal citing several infirmities in the judgment under challenge. 3. We have heard Mr. S. C. Biswas, learned counsel for the appellant and also heard Mr. K. Munir, learned Addl. P.P., for the State. 4. The case, projected in the FIR dated 22.03.1991 and in subsequent trial, in short, is that on the night of 21.03.1991 at about 10 pm, some miscreants, armed with various weapons, such as, gun etc. came to the house of one Sombar Tayung of Rukmini Gaon, PS Jonai in the district of Dhemaji and demanded the inmates of the house aforesaid to open the door. Once the door was opened, the miscreants, their number being more than 5 (five), over powered Sombar Tayung and looted gold ornaments and other articles including a dagger and in that process, they broke open various boxes in his house and took away very many articles there-from. 5. According to Sambur Tayung, he could recognize one of the miscreants namely Bilaman, appellant herein, in the light of the torch light which he flashed after the entry of miscreants into the house. An FIR to that effect on being lodged by Sri Sombur Tayung with the O/C, Jonai PS on 22.03.1991, police registered a case vide Jonai PS Case No. 42/1991 u/s 392 IPC and ordered one Sri Abdus Samad, S.I of police to investigate the case. 6. An FIR to that effect on being lodged by Sri Sombur Tayung with the O/C, Jonai PS on 22.03.1991, police registered a case vide Jonai PS Case No. 42/1991 u/s 392 IPC and ordered one Sri Abdus Samad, S.I of police to investigate the case. 6. Being so entrusted, Sri Samad visited the place of occurrence (in short, PO), examined witnesses, arrested the accused person in connection with aforementioned case who was also arrested in the meantime in connection with some other case which was, committed on the night of 21.03.1991, seized some articles allegedly taken away by miscreants from the house of informant, did other things needful and on the conclusion of investigation, he submitted charge sheet against as many as 8 (eight) accused persons showing Birinchi Doley, Dharmeswar Pegu and Bihua Doley as absconders. 7. In due course, learned Judicial Magistrate, before whom Charge –sheet was so laid, committed the case against accused Bilaman Pegu, Bani Kt. Doley, Baikuntha Kardong and Dimbeswar Pegu and Handique Doley to the court of sessions Judge, Dhemaji. Learned Sessions Judge, Dhemaji, after hearing the learned counsel for the parties, was pleased to frame charge u/s 395 IPC against accused persons aforesaid and charge, so framed, on being read over and explained to them, accused persons pleaded not guilty and claimed to be tried. 8. During trial, the prosecution side has examined as many as 9 (nine) witnesses including the informant and the I/O of the case. The statements of accused persons u/s 313 CrPC were also recorded, their plea was of total denial. On conclusion of trial and on hearing the learned counsel for the parties, learned Trial Court while acquitting all the accused persons except Bilaman Pegu, convicted him of offence u/s 395 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 9. Mr. S.C. Biswas, learned counsel for the appellant submits that judgment under challenge is unsustainable in law for reasons more than one. In that context, it has been stated that though the learned trial Court convicted accused person of offence u/s 395 IPC, yet, he blissfully overlooked the fact that prosecution could not establish that on the night in question, 5 (five) or more miscreants looted various properties from the house of the informant. In that context, it has been stated that though the learned trial Court convicted accused person of offence u/s 395 IPC, yet, he blissfully overlooked the fact that prosecution could not establish that on the night in question, 5 (five) or more miscreants looted various properties from the house of the informant. Being so, the first ingredient of offence u/s 395 IPC was found conspicuously missing and therefore, learned Trial Court was not justified in convicting the accused person of offence u/s 395 IPC. 10. It has been alleged that the complainant is one Sambaru Tayang. However, said person was never examined as witness before the court. Rather one Kumber Tayang was examined treating him to be Sambaru Tayang, the informant of the case. Since the person who set the law in motion having filed the FIR with O/C, Jonai PS on 22.03.1991, was not examined as witness, it shakes the vary basis of the prosecution case. 11. It is further alleged that though the prosecution claims that a dagger which was allegedly looted from the house of one Kumber Tayung on the night of 21.03.1991 was recovered from the house of the accused person, yet, there is evidence on record to show that such dagger was taken not from the house of PW 1 but from the house of one Bapukan Tayung who was examined as PW 2 whose house was also burgled on the night of which the house of PW 1 was also burgled. Such revelation again demolishes the vary basis of prosecution case. 12. Learned Counsel for the appellant again submits that the evidence of PW 1 cannot be believed for other reasons as well since his evidence suffers from serious contradictions inasmuch as he did not disclose to the I/O during the course of investigation all the material facts which he chose to disclose for first time before the court during trial. Such lapses on the part of the I/O make the evidence of PW1 even more doubtful. 13. The prosecution also placed huge reliance on the confessional statement which the accused allegedly made before Magistrate Shri Nakul Dutta during investigation. But such confession also cannot be relied on. In that regard, it has been alleged that the accused was first produced before the Magistrate on 28.03.1991. Thereafter, he was sent to police custody for another 48 hours. 13. The prosecution also placed huge reliance on the confessional statement which the accused allegedly made before Magistrate Shri Nakul Dutta during investigation. But such confession also cannot be relied on. In that regard, it has been alleged that the accused was first produced before the Magistrate on 28.03.1991. Thereafter, he was sent to police custody for another 48 hours. He was produced before the Magistrate from such police custody on 30.03.1991 at 10.30 am. 14. On his such production, he expressed his desire to make a confession for which the learned Magistrate posted him with necessary statutory warnings requiring him to ponder over the matter if he still desired to make confession and then he was kept in his chamber to have reflection over the warnings, so rendered to him. Thereafter he recorded his confession at 2.30 pm, same day. 15. Learned counsel for the appellant submits that since the accused person was not given even 4 hours time for reflection, it can safely be said that he was not given enough time for reflection, more so, when he was produced before the Magistrate after keeping in police custody for a period of for almost 9 (nine) days and when the accused was found involved with a case as serious as dacoity. Therefore, the confession in question becomes unsustainable and same is liable to be rejected. 16. It is also the case of learned counsel that prosecution case is basically based on testimonies of PW 1 and the confessional statement. When the evidence of PW 1 and the confessional statement are found unsafe for reliance and as such, same cannot be acted upon in determining the allegation against the accused person. Being so, those evidence needs to be kept beyond the purview of the case in hand. Once those vital testimonies are kept beyond consideration, there remains nothing substantial and significant for the prosecution to fall upon. 17. Situation being such, learned Trial Court was duty bound to acquit the accused person of offence u/s 395 IPC on giving him at least the benefit of doubt. Learned counsel for the appellant, therefore, urges this court to acquit the accused person of offence u/s 395 IPC on setting aside the judgment under challenge. 18. Such contention was, however, refuted by Mr. K. Munir, learned Addl. Learned counsel for the appellant, therefore, urges this court to acquit the accused person of offence u/s 395 IPC on setting aside the judgment under challenge. 18. Such contention was, however, refuted by Mr. K. Munir, learned Addl. PP, stating that though the evidence of PW 1 suffers from some infirmities, such infirmities cannot be blown beyond its seize to discard the testimony of PW 1, more so, when his evidence on fundamental aspects of the prosecution case is found very reliable which incidentally draws support on material points from the testimonies of some other witnesses including I/O as well. Therefore, the testimony of PW 1 alone establishes the case against the accused person. 19. With regard to the contention that PW 1 Kumbar Tayung was not the informant since the informant was one Sambur Tayung, it has been contended that such a discrepancy hardly exists in facts. In that context, it has been stated that the FIR was in Assamese language and the informant put his signature in vernacular. However, while putting his signature Sambur Tayung, the informant, did not clearly write his name leaving there some scope for interpreting his name both as Kumber as well as Sambur. However, such illegibility in the name of the informant in the FIR is found to be too insignificant to cause any damage to the prosecution case for the reason aforementioned. 20. That apart, the addresses of the informant in the FIR as well as address, so rendered by PW 1, are found to be symmetrical in all respects since the name of PW 1 as well as his addresses are found to be totally identical. Equally important, there is nothing on record to show that Dharmeswar Tayung of Rukmini Gaon, Jonai had two sons by names (i) Sambur Tayung and (ii) Kumber Tayung. 21. Since there is nothing on record to show that aforesaid village had any other person by name Dharmeswar Tayung and since there is nothing on record to show that there are two persons by names, Sambur and Kumber in the village aforementioned and since there is nothing on record to show that said Dharmeswar Tayung had two sons by names Sambur Tayung and Kumber Tayung, there cannot be any doubt that the informant who lodged the FIR is the person who was examined as PW 1 in connection with case aforementioned. Being so, learned Addl. Being so, learned Addl. PP, submits that discrepancies aforesaid exist only in fiction and not on fact. 22. With regard to alleged infirmity in the confessional statement of the accused person, it has been alleged that the normal procedure is to give the accused person at least 3 (three) hours time for reflection. However, here, the accused was given 4 hours time and this coupled with the fact that learned Magistrate had taken all the measures to ensure that the accused did not make a confession under compulsion and coercion of any kind, from any quarter whatsoever firmly shows that such infirmity is not enough to demolish the confession in question. 23. We have considered the rival submissions having regard to the judgment under challenge and evidence on record. Before we proceed further, we find it necessary to have a look at the evidence of PWs and the evidence of PW 1 is first taken up for consideration. According to PW 1, Kumber Tayung, on the fateful night at about 10 pm, while he and his other family members were sleeping in their house, armed miscreants came to their house and forced them to open the door. 24. He further states that in that process, he used a torch light and in the light of the torch, he could clearly recognize one of the miscreants who had raided his house on that night and he was accused Bilaman Pegu. He also stated that the miscreants had looted several articles from his house, such as, a pair of light gold ear ring, one pair of heavy ear ring, one two batteried torch-light and one dagger. The value of those articles was said to be of about Rs. 6000/-. 25. In that connection, he lodged the FIR which he proved as Ext. 1. In his cross-examination, he admitted that no TIP was conducted to indentify the miscreants who committed dacoity in his house on the night in question. The suggestion that he falsely implicated the accused person with the crime in question is also denied by PW 1. 26. PW 2, Bapukan Tayung, is the brother of PW 1. According to him, on the fateful night, some persons committed dacoity in the house of his brother PW1. But he came to know about the alleged incident following day in the morning. 26. PW 2, Bapukan Tayung, is the brother of PW 1. According to him, on the fateful night, some persons committed dacoity in the house of his brother PW1. But he came to know about the alleged incident following day in the morning. PW 3, Mani Kanta Doley deposes that during the course of investigation, police recovered a gun, one dagger from the house of accused Bilaman. It is in his evidence that Bilaman resided in the same village. According to him, Police seized those articles on the strength of seizure list Ext. 4 where he put his signature as being witness of the seizure. He admitted that seized gun belongs to one Hemchandra Pegu, brother of the accused person. 27. According to Shri R. Doley (PW 4), one day, he went to the house of PW 1 and found police in his house. On being requested by police, he put his signature on a document which he proved as Exbt. 2. PW 5, Shri Kallol Doley, deposes that on the night on which the house of PW 1 was burgled, his house was also robbed. In that connection, he lodged an FIR. During the course of investigation, police seized one gun and one dagger. Police took those articles to the house of PW 5, police also seized those articles on the strength of seizure list Ext. 4. 28. According to him, Banikanta was one of the miscreants who committed dacoity in his house at that night. PW 9, Sri A. Samad, S.I of police, was the I/O of the case. According to him, on 22.03.1991, O/C, Jonai P.S. received the FIR from one Sambur Tayung and thereafter, he registered a case and he was ordered to investigate the case. Being so entrusted with the investigation of the case, he had recovered one dagger, one SSBL gun on the strength of seizure list Ext. 4 from the house of the accused person. 29. In the aforesaid seizure list, the accused also put his signature which he proved as Exbt. 4(4). Thereafter, he also recovered one two batteried torch light on the strength of seizure list Ext. 9. Such articles were produced before him by accused person and in proof of which he also obtain his signature in the seizure list Exbt 9. The signature of the accused was proved as Ext. 9(2). 4(4). Thereafter, he also recovered one two batteried torch light on the strength of seizure list Ext. 9. Such articles were produced before him by accused person and in proof of which he also obtain his signature in the seizure list Exbt 9. The signature of the accused was proved as Ext. 9(2). He also seized two empty cartridges and 4 other empty cartridges on the strength of seizure list Exbt. 10 and in such a seizure list, he obtained the signature of Bilaman which he proved as Exbt. 10(2). 30. In the course of investigation, he seized one gun license pertaining to the seized gun on the strength of seizure list Ext. 11 and such a gun license was seized from the house of Hemchandra Pegu, brother of the accused person. It is also in his evidence that before he could complete the investigation he was transferred. Above being the evidence on record, let us see how far such evidence makes out the allegation against the accused person. 31. Before proceeding further, I find it necessary to see if PW 1 Kumber Tayung and the informant who lodged the FIR is one and same person. It may be stated here that Ext. 1 was written in vernacular and informant put his signature therein in the same language. I have found from materials on record that the person who lodged the FIR is semi illiterate person and as such, he is not well conversant with the shape and form of alphabets of the vernacular, used in writing the FIR. Therefore, it appears that he put his signature in the FIR with great difficulty. 32. I have also found that PW 1 introduces himself before the court as Kumber Tayung. On scanning the signature of the informant in the FIR (Exbt. 1), I have found that he wrote his name in vernacular which, at one point of time, appears to be Sambur while at other point of time, it appears to be Kumber. But then, it is found evident from the Ext. 1 that the address which PW 1 had given before the court during trial and the address which the informant has rendered in the FIR appear to be strikingly similar. Therefore, aforesaid infirmities, in my opinion, cannot be blown beyond its proportion to blur the identity of informant as well as PW 1. 33. 1 that the address which PW 1 had given before the court during trial and the address which the informant has rendered in the FIR appear to be strikingly similar. Therefore, aforesaid infirmities, in my opinion, cannot be blown beyond its proportion to blur the identity of informant as well as PW 1. 33. One may note here that there is no evidence on record that there are not two persons by name Dharmeswar Tayung, nor was there any evidence on record to show that Dharmeswar Tayung had two sons by name Kumber and Sambar. Such revelation doubly confirms that there are no two persons by names Kumber and Sambar. Being so, we are to conclude that informant and PW 1 is one and same person. 34. So situated, let us consider the prosecution case based on confession which the accused/appellant had rendered before the Magistrate (PW 5). Here, it may be noticed that the accused had admitted to have made a confessional statement before the Magistrate but according to him, he did so on being compelled by Police. In order to ascertain the veracity of the same, I have considered such allegation in the light of evidence on record. It is found that on 30.03.1991, when the accused person was produced before the Magistrate, he was in the police custody for about 48 hours soon before such production. 35. However, there are materials on record to show that the accused was in police custody from 22.03.1991 which means that over a period close to 9 days, the accused was in police custody. When one considers the fact of the accused being in police custody for a period close to 9 days, one would naturally expects the Court to give the accused sufficient time so that he gets an opportunity to come out from all kinds of apprehensions that he may suffer for being in police custody for such a long period. In my considered opinion, giving only 4 hours time to have reflection on the warnings vis-à-vis accused confessing his guilt before the Magistrate is wholly inadequate and such infirmity alone renders the entire confession unsafe for reliance. 36. One may note here that on 28.03.1991, the accused was first produced before the Magistrate to have his confession recorded. In my considered opinion, giving only 4 hours time to have reflection on the warnings vis-à-vis accused confessing his guilt before the Magistrate is wholly inadequate and such infirmity alone renders the entire confession unsafe for reliance. 36. One may note here that on 28.03.1991, the accused was first produced before the Magistrate to have his confession recorded. There are also materials on record to show that when he was produced before the Magistrate on 28.03.1991, the accused expressed his desire to confess his guilt for which he was given necessary statutory warnings and thereafter he was again sent to police custody for next 48 hours. The sending of a confessing accused to the custody of police is highly illegal and it makes all warnings to the accused on confession rendered on 28.03.1991 as well as on 30.03.1991 totally redundant. This is another reason why the confession in question needs to be rejected. 37. The confession of the accused needs to be rejected for yet, another reason. On perusal of the confession in question, I have found that such a statement is not a confession as contemplated in Evidence Act. It is a settled law that a statement to be graduated to be a confession must either admits in the terms of offence or at any rate, substantially all facts constituting the offence in question. The decision in the Apex court in the case of Veera Ibrahim vs. State of Maharashtra in AIR 1976 SC 1167 can be relied on. The relevant part is reproduced below:- To attract the prohibition enacted in s. 24, Evidence Act, these facts must be established:- (i) that the statement in question is a confession; (ii) that such confession has been made by an accused person; (iii) that it has been made to a person in authority; (iv) that the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority; (v) such inducement, threat or promise, must have reference to the charge against the accused person; (vi) the inducement, threat or promise must in the opinion of the Court be sufficient to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. In the present case, facts (i), (iv) and (vi) have not been established. Firstly, the statement in question is not a "confession' within the contemplation of s. 24. It is now well-settled that a statement in order to amount to a "confession" must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, howsoever grave, is not by itself a confession. A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a confession (see Pakala Narayana v. R.; Plavinder Kaur v. State of Punjab; Om Prakash v. State. 38. But same was not the position in the case under consideration. For ready reference, the confession aforesaid is reproduced below:- “It was a Thursday. I was sleeping at my house at night. Then, the accused- Bani Kanta Doley, Handique Doley, Dulal Doley, Bihua Doley came to my house at about 7 pm. They took me with them to participate in a dacoity case when I did not agree, they took of the gun of my brother which was with me. I went with them to Village- Rukmini Gaon. Dacoity was committed there. I did not enter into the house. There was hue and cry at that time. I was given one torch light and a dagger. I came home with my gun. Police arrested me following morning and recovered the gun, torch light, dagger and cartridges. The accused- Bihua Doley was also arrested and the other accused persons had absconded.” 39. A bare perusal of the confession in question reveals that the accused claims to have committed the crime in question under huge compulsion in order to save his life. Therefore, by no stretched of imagination, said statement can be treated as confession as understood in law. Situation being such, we have no hesitation in coming to the conclusion that prosecution case in so far it is based on confession remains far from being established. 40. This brought us to next phase of the prosecution case where prosecution heavily relied on evidence of several PWs, more particularly PW 1 and PW 8. A bare perusal of evidence of PWs would make it clear that on the night of 21.03.1991, the house of PW 1 was burgled. 40. This brought us to next phase of the prosecution case where prosecution heavily relied on evidence of several PWs, more particularly PW 1 and PW 8. A bare perusal of evidence of PWs would make it clear that on the night of 21.03.1991, the house of PW 1 was burgled. The averments in Exbt 1 (FIR) as well as in the seizure list dated 22.03.1991(Exbt 2) make such a conclusion inevitable. 41. We have also found that the accused/appellant claims that the FIR in question was lodged after lodging of FIR by one Kallul Doley and that too when some articles was allegedly recovered in connection with case lodged by said Kallul Doley. Such a claim was denied by prosecution. However, such denial was found to be without substance since the FIR clearly mentions that the FIR in question was lodged by PW 1 after lodging of FIR by Kallul Doley (PW 5). 42. Such revelation, in my opinion, raises a serious doubt about the claim of PW 1 that on the fateful night, the accused had raided his house and he could recognize him as well. The fact that there is clear proof that no FIR was lodged by PW 1 till the recovery of articles from the house of the accused person on 22.03.1991 is more and more proof of the same. 43. One may note here that in the FIR, PW 1 speaks about 3 miscreants who entered into his house on the night aforesaid. However, in his evidence, he specifically states that he had seen only one miscreants entering into his house on the night of 21.03.1991. This again shows that claim of PW 1 that as many as 3 miscreants including the accused herein had entered into his house on the eventful night cannot be accepted without a large grain of salt. 44. We have found that though the house of PW 1 was robbed on the night of 21.03.1991 and although he claims to have identified the accused herein as one of the miscreants, yet, there is nothing on record to show that he had communicated such information to any of his neighbours. Rather he implicated the accused with the crime in question only when the accused was apprehended in connection with a case lodged by Kallul Doley. Rather he implicated the accused with the crime in question only when the accused was apprehended in connection with a case lodged by Kallul Doley. This further shows that the claim of PW 1 that he had indentified accused herein as one of the miscreants who robbed his house on the night of 21.03. 1991 needs to be accepted with liberal dose of suspicion. 45. But then, there is indisputable evidence on record in the form of testimony of PW 1 and PW 8, supported by averments made in Ext. 1 and Ext. 4, to show that a decorated dagger along with many other items were removed from the house of PW 1 on the night of 21.03.1991. There is also evidence to show that one of the stolen articles, same being a decorated dagger, which was removed from the house of PW 1 on the night of 21.03.1991, was recovered from the house of accused person on 22.03.1991. 46. Recovery of such stolen article from the house of the accused person on 22.03.1991, however, in the facts and circumstances of the case in hand, serves to show that the accused was the recipient of stolen property knowing the same to be stolen one. The fact that some other articles, which are evidently not owned by the accused person, were also recovered from his house makes the conclusion inevitable. 47. In view of my foregoing discussion, I am of the opinion that the prosecution cannot be said to have proved the charge u/s 395 IPC against the accused person. Rather, on the materials on record, it needs to be concluded that the accused had committed the offence u/s 411 IPC and as such, the accused ought to have been convicted not u/s 395 IPC but u/s 411 IPC. 48. Resultantly, the conviction of the accused person u/s 395 IPC is set aside, but he is convicted u/s 411 IPC. Accordingly, the conviction of the accused person stands altered from a conviction u/s 395 IPC to a conviction u/s 411 IPC. 49. We have found that the case was initiated as back as in the year 1991. In the meantime, a long 24 years has already elapsed. There is no evidence on record to show that the case in question got delayed for tactics adopted by the accused person. Being so, in my opinion, accused needs to be punished leniently. 50. 49. We have found that the case was initiated as back as in the year 1991. In the meantime, a long 24 years has already elapsed. There is no evidence on record to show that the case in question got delayed for tactics adopted by the accused person. Being so, in my opinion, accused needs to be punished leniently. 50. Accordingly, the accused person is sentenced to suffer R.I. for 1 year with a fine of Rs. 2,000/- (Rupees Two Thousand) only i.d., R.I for another 3(three) months for the offence aforesaid. The period which the accused had already undergone is ordered to be set off against the period of sentence. 51. In view of above, the appeal is partly allowed as indicated above. 52. The accused is directed to surrender before the Court below immediately to serve out the sentence failing which the learned Sessions Judge would do the needful to procure his attendance to serve out the sentence imposed upon him in accordance with law. 53. Return the LCR forthwith.