Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 13 (TRI)

Ushajoy Mog v. State of Tripura

2016-01-19

DEEPAK GUPTA, S.C.DAS

body2016
JUDGMENT : S.C. Das, J This criminal appeal is directed against the judgment and order of conviction and sentence dated 03.03.2012 passed by learned Sessions Judge, South Tripura, Udaipur in case No. 13(ST/S) of 2009 where under the learned Sessions Judge found the accused-appellant guilty of the charge framed against him under Section 302 of IPC and sentenced him to suffer RI for life and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer further RI for one year. Aggrieved, the convict-appellant Ushajoy Mog preferred the present appeal challenging the judgment and order of conviction and sentence. 2. We have heard learned counsel, Ms. R. Purkayastha for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent. 3. Prosecution case is that on 21.06.2008 in the early morning at about 6.00 am the victim Jatindra Tripura (aged about 47 years) went out of his house with a takkal (a sharp cutting weapon) in hand to collect firewood from Tulamura forest. At about 12.00 am (noon) his brother Udaichan Tripura(PW1), informant, and other family members got information that dead body of Jatindra Tripura was lying on the foot track of Tulamura forest with severe bleeding cut injuries on neck, forehead, etc. The informant Udaichan Tripura along with other family members and villagers rushed to the spot and found the dead body of Jatindra Tripura lying on the spot on the foot track of Tulamura forest. Immediately thereafter Udaichan Tripura lodged FIR before O/C Silachari P.S. and accordingly Silachari P.S. case No.6/2008 under section 302 of IPC was registered and investigation was taken up. It is the case of the prosecution that the deceased Jatindra Tripura and the accused Ushajoy Mog were residents of village Suknachari(Nutanpara). Accused Ushajoy Mog was suffering from various ailments and the accused believed that Jatindra applied sorcery on him and consequently he was suffering from various ailments. The accused threatened Jatindra to kill him and the matter was reported to local CPI (M) party office at Suknachari and a meeting was held but the dispute could not be resolved and in that meeting also accused threatened Jatindra to kill him for his belief that Jatindra was practicing sorcery and applied black magic on him and as a result he was suffering from ailment. Jatindra out of fear left his village Nutanpara and shifted to village Jayantapara and had been living there. It is the further case of the prosecution that during investigation I.O. conducted inquest report over the dead body on the spot and seized bloodstained earth and leafs from the spot and thereafter arranged postmortem examination over the dead body of Jatindra. I.O. also recorded the statements of material witnesses and thereafter arrested accused Ushajoy Mog on 25.06.2008. The accused Ushajoy Mog while in custody under police remand made a statement to the I.O. that he will be able to discover the weapon of offence with which he killed Jatindra while Jatindra was on way back to his house with firewood and consequent to that statement of the accused, I.O. and other witnesses, i.e. PWs 12, 13 and 15 were led to the jungle at Tulamura where Jatindra was killed and the accused brought out Exbt.MO2 from the jungle which was seized by I.O. by preparing seizure list in presence of the material witnesses, i.e. PWs 12, 13 and 15. The recovery was made on 29.06.2008 and on 30.06.2008 the accused was produced to the Court of learned SDJM, Sabroom for recording his confessional statement. Learned Judicial Magistrate, First Class cautioned the accused that he was not bound to make any confession and that any confession made by him may be used against him as evidence and thereafter remanded him to jail custody in segregation for reflection of mind and directed jail staff to produce him on 02.07.2008 and on that day after observing all formalities, since the accused was still ready to make a confession, the learned Magistrate being satisfied that the accused was voluntarily willing to make a confession, recorded confessional statement judicially and that confessional statement has been proved as Exbt.5 by PW16, Judicial Magistrate, First Class, Mr. Prakash Kumar. Prakash Kumar. It is also the case of the prosecution that accused Ushajoy Mog hatched a conspiracy to kill Jatindra since the accused believed that Jatindra used to practice sorcery and he applied black magic on the accused and as a result the accused was suffering from various ailments and because of that blind belief the accused decided to eliminate Jatindra and Jatindra out of fear left the village and started living at Jayantapara but on the fateful day when Jatindra went to Tulamura forest to collect firewood the accused followed him and while Jatindra was on way back the accused attacked him from the back and struck blows with takkle on the forehead and neck of Jatindra and as a result Jatindra received bleeding injury and died on the spot. It is the case of the prosecution that the accused thereafter being frightened fled from the spot, washed the takkle (dao) and left it inside the forest. In course of investigation I.O. also sent the bloodstained earth and wearing apparels of the deceased which were seized, for chemical examination and the report was collected. Postmortem examination report was also collected from the medical officer who conducted autopsy and after completion of investigation submitted charge sheet against accused Ushajoy Mog under Section 302 of IPC. 4. After commitment of the case to the Court of Sessions for trial, learned Sessions Judge on 18.03.2009 framed charge against the accused for commission of offence punishable under Section 302 of IPC to which the accused pleaded not guilty and claimed to be tried. 5. In course of trial prosecution examined eighteen witnesses and twenty two items of exhibits (documents and materials) were also proved which has been reflected in the appendix to the judgment of the trial Court. 6. After completion of recording of prosecution evidence, accused was examined under Section 313 of CrPC and in his turn the accused adduced no evidence. Defence case so far suggested during cross-examination of prosecution witnesses and while examination under Section 313 of CrPC is that of plea of innocence and nothing else. 7. Learned Sessions Judge on appreciation of the evidence on record found the accused guilty of the charge and sentenced him as stated hereinbefore. 8. Homicidal death of Jatindra Tripura has not been disputed by defence. There is no eyewitness of the occurrence of murder. 7. Learned Sessions Judge on appreciation of the evidence on record found the accused guilty of the charge and sentenced him as stated hereinbefore. 8. Homicidal death of Jatindra Tripura has not been disputed by defence. There is no eyewitness of the occurrence of murder. The case is based on circumstantial evidence and confessional statement of the accused. The trial Court placed implicit reliance on the confessional statement of the accused recorded judicially and also on the circumstantial evidence of recovery of the weapon of offence at the instance of the accused. 9. Learned counsel, Ms. Purkayastha has submitted that the trial Court relying on the confessional statement of the accused convicted him whereas the confession has not been supported by any other direct or circumstantial evidence. According to Ms. Purkayastha the recovery of the weapon of offence, i.e. Exbt.MO2 has not been proved according to law and so such recovery of the alleged weapon of offence cannot be treated as a supporting evidence of the confessional statement. She has contended that in the absence of any other cogent direct or circumstantial evidence the accused was entitled to get benefit of doubt and hence this Court should interfere in the judgment and order of conviction and sentence and should allow the appeal and set aside the judgment and order of conviction and sentence. 10. Learned Addl. P.P., Mr. Debnath on the other hand has submitted that the confession is a judicial confession recorded after compliance of all formalities. The accused simply retracted from the confession at the time of trial and not before his examination under Section 313 of CrPC. PW16, Judicial Magistrate, First Class recorded the confession being fully satisfied that the accused was making the statement voluntarily. His evidence has not been shaken in any manner in cross-examination or otherwise. The confessional statement has been proved as Exbt.5 which is very cogent and consistent and according to him there is general corroboration of the confession by the evidence of recovery of the weapon of offence, i.e. Exbt.MO2. The appeal has no merit and the trial Court rightly found the accused guilty of the charge framed against him and the appeal should be dismissed. 11. The appeal has no merit and the trial Court rightly found the accused guilty of the charge framed against him and the appeal should be dismissed. 11. Section 24 of the Evidence Act prescribes that a confession made by accused is relevant unless it appears to the Court that the confession has been made by the accused because of inducement, threat or promise and only in such case any confession made by an accused is irrelevant. Section 24 of the Evidence Act reads as follows: “24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.—A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, 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” 12. Section 164 of CrPC prescribes the procedure of recording a confession and a statement. The provision as prescribed reads as follows: “164. Recording of confessions and statements.— (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: [Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:- "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B. Magistrate". ……………………………………………………………………………………. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.” 13. In the present case, indisputably, the accused Ushajoy Mog was arrested on 25.06.2008 and he was produced before the Judicial Magistrate, First Class, Sabroom on 26.06.2008. On the prayer of the I.O. he was remanded to police custody initially for three days and thereafter by order dated 28.06.2008 for another three days. While the accused was in police custody he was interrogated by I.O. and on the basis of the information received from the accused the weapon of offence, i.e. Exbt.MO2 was recovered from the jungle where the accused alleged to have kept it hidden after commission of offence. While the accused was in police custody he was interrogated by I.O. and on the basis of the information received from the accused the weapon of offence, i.e. Exbt.MO2 was recovered from the jungle where the accused alleged to have kept it hidden after commission of offence. On 30.06.2008, I.O. forwarded the accused to the Court of learned Judicial Magistrate; First Class with a prayer for recording his confessional statement and on that day learned Magistrate passed order directing judicial custody of the accused in segregation for reflection of his mind. On 02.07.2008 the accused was produced before the learned Magistrate and on that day observing all formalities learned Magistrate recorded the confessional statement of the accused which has been proved as Exbt.5. It appears from Exbt.5 that before recording statement learned Magistrate examined the accused and satisfied about the voluntariness of making the confession. He has cautioned the accused that he was not bound to make a confession and that if he made any confession that may be used against him at the time of trial but the accused still insisted to make confession. Thereafter also he gave time to the accused to think over the issue again and thereafter at 4.15 pm he recorded the confession. The confessional statement of the accused reads as follows: “The person whom I killed name was Jatindra Tripura. His house is nearby my house. From the last Ashwin I started feeling some physical problems like stiffing of the throat, pain the stomach and my whole body swallowed. Then about this problem I consulted one Matrijai Reang of Tirthmukh who is a ojha. Then he told me that one person has applied mantra over me because of which I am feeling this problem. After that I once again consulted one Moshi Mog of Suknachari. He also opined the same thing that some person has applied some mantra over my body due to which I am feeling this physical problem. In the last Kartik I called the Jatindra Tripura to the party office of Suknachari and there Jatindra Tripura accepted that he has applied some mantra over my body and due to which I am facing this present physical problem. Then Jatindra Tripura left the village. Then I told the Jatindra Tripura in the presence of members of the party that I will kill Jatindra if he could not remove mantra from my body. Then Jatindra Tripura left the village. Then I told the Jatindra Tripura in the presence of members of the party that I will kill Jatindra if he could not remove mantra from my body. Then the Jatindra Tripura showed his inability to remove mantra from my body and he told me to do whatever I like to do with him. Then I tried number of days to find Jatindra Tripura to kill him. Then on last Saturday I saw Jatindra Tripura in the morning nearby my house going towards jungle for cutting fire woods. Then I slowly followed him in the jungle. And I hide myself nearby the jungle. Then when the Jatindra Tripura came after cutting woods, near 6.30 a.m. then I by my own dao I gave him dao blow from the back side, which fell on the face of the Jatindra Tripura, as he turned. Then when Jatindra Tripura fell on the ground, then I gave two dao blows on the neck of the Jatindra Tripura. Thus due to fear I ran away keeping the dao in the jungle. Then on last Wednesday in the evening the police came and arrested at 4 p.m. from one shop at Suknachari.” 14. The learned Magistrate, Mr. Prakash Kumar who has recorded the confessional statement has been examined as PW16. In his deposition he stated— “On 2.7.2008 I was Judicial Magistrate 1st Class, Sabroom, South Tripura. On that day in connection with Silachari P.S case No.6/2008 one accused Usha Joy Mog was produced before me for recording his confessional statement. I explained to him that, I am a Judicial Magistrate and he is not bound to make such confession and if he makes such confession it will be used against him, but he still insisted to make confessional statement. I became convinced that he was willing to me confessional statement voluntarily. Accordingly, I recorded his confessional statement in a printed form and I recorded his answers in English version. After recording such statement I appended my certificate at the bottom of the statement and explained the same to him. He put his thumb impression admitting it to have been correctly recorded. This is the statement bearing my hand writing and signature, marked Exbt.5. In fact the accused was produced before me on 30.6.2008. After recording such statement I appended my certificate at the bottom of the statement and explained the same to him. He put his thumb impression admitting it to have been correctly recorded. This is the statement bearing my hand writing and signature, marked Exbt.5. In fact the accused was produced before me on 30.6.2008. I remanded him to J/C for segregation till 2.7.2008 and he was produced to me again on 2.7.2008 and was still willing to make confessional statement. Cross-examination. It is not a fact that, Ushajoy was mentally imbalanced when he was produced to me. It is not a fact that I did not record statement of Ushajoy as per his version.” A bare reading of the above statement of PW16 makes it abundantly clear that the confessional statement was recorded after observing all formalities and the evidence has not been shaken in any manner. The accused voluntarily made the confession without any inducement, threat or promise and so the confession was relevant for consideration. 15. The accused in his examination under Section 313 of CrPC was questioned about the recorded confession to which he simply stated that he was ill and was advised by I.O. to give statement. He could not understand the consequence. There is nothing on record to show that before examination under Section 313 of CrPC the accused made any attempt to inform the Court(trial Court or the Magisterial Court) that the confession was involuntary or that for any other reason he made the confession. While he was produced before the Court with a prayer for recording confession, he was remanded to jail custody in segregation for reflection of mind and thereafter while recording the statement on 02.07.2008, PW16 cautioned him repeatedly as required by law and thereafter recorded the confessional statement. So, in our considered opinion, the judicial confession was recorded perfectly observing the relevant formalities as per law. A mere bald assertion by the accused at the time of his examination under Section 313 of CrPC that he was advised by the I.O. to make the confession or that he could not understand the consequence of the confession is not at all tenable in the absence of any other item of evidence. 16. A judicial confession recorded after observing formalities cannot be thrown away simply because the accused has retracted at the time of trial. 16. A judicial confession recorded after observing formalities cannot be thrown away simply because the accused has retracted at the time of trial. No doubt, a confession is generally a weak piece of evidence and it is a rule of prudence that the Court shall look for some other evidence to get corroboration of the confession. It is a settled law that there may be conviction on the confessional statement alone if it is found to be voluntary and is supported by the circumstances and other materials on record. It is also a settled law that the Court should examine the confession carefully and compare it with the rest of the evidence in the light of surrounding circumstances and probabilities of the case. If confession appears to be probable in the catalogue of events and naturally fits it with the rest of the evidence and the surrounding circumstances it may be safely relied on. An unambiguous confession has a high probative force if voluntary and without inducement, threat or promise. There is no evidence to show that the accused made the confession under inducement, threat or promise or that he was not given proper time for reflection of mind and that he was not cautioned before recording the confession. 17. The Supreme Court in the case of Aloke Nath Dutta & Ors. v. State of West Bengal reported in (2007) 12 SCC 230 in para 87 has held— “87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.” 18. It is an admitted position that the accused was forwarded to the Court by the I.O. with a prayer for recording his confession while the accused made a statement before I.O. during interrogation. Learned Magistrate recorded the confession observing the formalities as contemplated in Section 164 of CrPC which is reproduced hereinbefore. As already stated earlier the evidence of PW16, the Magistrate, who recorded the confession, has not been shaken in any manner to show that the Magistrate mechanically recorded the confession without observing the formalities. Learned Magistrate recorded the confession observing the formalities as contemplated in Section 164 of CrPC which is reproduced hereinbefore. As already stated earlier the evidence of PW16, the Magistrate, who recorded the confession, has not been shaken in any manner to show that the Magistrate mechanically recorded the confession without observing the formalities. The voluntariness and truthfulness of the confession is therefore to be presumed since there is no other hypothesis in the record to show that anybody else might have committed the offence and that the accused was somehow made involved in the case. 19. Learned Addl. P.P. in the course of argument referred the case of Madi Ganga v. State of Orissa reported in AIR 1981 SC 1165 and the case of State of Tamil Nadu v. Kutty alias Lakshmi Narasimhan reported in AIR 2001 SC 2778 and submitted that a general corroboration of the confession is sufficient to record a conviction of an accused based on confession. There is no requirement of any direct evidence to support the confession. We may gainfully refer here para 5 and 6 of the case of Madi Ganga (supra) which reads as follows:- “5. We desire to express no opinion on the question whether the extra-judicial confession made to P.Ws. 2 to 5 is barred under Section 24 of the Evidence Act. It is unnecessary for us to say anything on this question, since we are satisfied that the learned Sessions Judge was wholly wrong in excluding and the High Court was certainly right in acting upon the confessional statement made to the Magistrate. The learned Magistrate has put to the accused all the necessary questions to satisfy himself that the confession was voluntary. He has also appended the necessary certificate. We do not accept Shri Jain's submission that the learned Magistrate should have been examined as a witness. Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorizes the Court to presume that the document is genuine, that any statements as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law. Shri Jain submitted that if the Magistrate had been examined as a witness, the accused might have been in a position to show, by cross examination that the confession recorded by the Magistrate was not voluntary. Shri Jain submitted that if the Magistrate had been examined as a witness, the accused might have been in a position to show, by cross examination that the confession recorded by the Magistrate was not voluntary. The Magistrate has appended a certificate that he was satisfied that the confession was voluntary. No circumstance has been brought out in the evidence justifying the calling of the Magistrate as a witness. We do not think that the circumstances of the case justify any comment on the alleged failure of the prosecution to examine the Magistrate as a witness. 6. The final submission of the learned Counsel was that even if the confession to the Magistrate was accepted as voluntary it has not been sufficiently corroborated to justify the conviction of the accused. It is now well settled that in order to sustain a conviction on the basis of a confessional statement it is sufficient that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. General corroboration is sufficient-vide Subramanian Goundan v. State of Madras, AIR 1958 SC 66 . In the present case the confessional statement refers to the motive for the occurrence. This part of the confession is corroborated by the evidence of P.W. 1. The confessional statement refers to the accused having thrown a big stone on the head of the deceased. This part of the statement is corroborated by the medical evidence. We think that there was sufficient general corroboration to justify the High Court acting upon it. The appeal is, therefore, dismissed.” We may also quote here para 12 and 13 of the case of Kutty alias Lakshmi Narasimhan(supra) which is relevant and reads as follows:- “12. Learned Judges of the High Court declined to act on the said confession mainly for two reasons. First is that the confession was retracted by the maker thereof and second is that the recovery of articles was made prior to the confession. We may state at the outset itself that both reasons are too insufficient for overruling the confession. 13. It is not the law that once a confession was retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. We may state at the outset itself that both reasons are too insufficient for overruling the confession. 13. It is not the law that once a confession was retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavor is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard.” 20. Let us now see whether there was a general corroboration from other items of the evidence on record to support the confession made by the accused. Section 27 of the Evidence Act deals with the discovery of fact based on the information given by the accused. The provision prescribed in Section 27 is an exception to Sections 25 and 26 of the Evidence Act. The Supreme Court in the case of Anter Singh v. State of Rajasthan reported in (2004) 10 SCC 657 has held that the reason behind partial lifting of the ban against confessions and statements made to the police is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. The basic idea embodied in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. It is apparent that Section 27 is embodied by way of proviso to Sections 25 and 26 and a statement though made by way of confession made in police custody which distinctly relates to the fact discovered has been made admissible in evidence against the accused. For ready reference let us quote here the provisions of Section 27 of the Evidence Act which reads as follows:- “27. How much of information received from accused may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 21. Ms. Purkayastha, learned counsel has submitted that leading to discovery has not been proved. According to learned counsel no statement of the accused was recorded by I.O. while the accused was in police custody and so the alleged discovery of Exbt.MO2 cannot be accepted as a legal evidence against the accused. To substantiate her contention she relied on the decision of the apex Court in the case of Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra reported in AIR 2008 SC 1184 and the case of Md. Ankoos v. Public Prosecutor, High Court of A.P. reported in AIR 2010 SC 566 . 22. At the outset, we are constrained to observe that a case law should be referred when the facts leading to the observation of the Court fits with the facts and circumstances of the case at hand. The observation from a judgment of the apex Court cannot be read in isolation, divorced from the context in which the same were made. It would be improper for any Court to take out a sentence from the judgment of the Supreme Court, divorced from the context from which it was given and treat such an isolated sentence as the annunciation of law by the Supreme Court. 23. It would be improper for any Court to take out a sentence from the judgment of the Supreme Court, divorced from the context from which it was given and treat such an isolated sentence as the annunciation of law by the Supreme Court. 23. The Supreme Court in the case of The State Financial Corporation v. M/s Jagdamba Oil Mills reported in AIR 2002 SC 834 has observed that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the facts situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. 24. The facts in the cases of Sattatiya @ Satish Rajanna Kartalla(supra) and Md. Ankoos (supra) are on different context and in no way fit with the facts of the present case at hand. In the case of Sattatiya @ Satish Rajanna Kartalla(supra) there was no statement of the accused produced by the prosecution to show that the accused had expressed his desire to facilitate recovery of incriminating material. The case of Md. Ankoos (supra) is completely on a different fact where the High Court while reversing the judgment of acquittal passed by the trial Court has taken into consideration certain statements of witnesses recorded by I.O. under Section 161 of CrPC found in the police case diary. The case laws in no way help the defence plea of the case at hand and we find nothing to discuss further on those case laws. 25. It is an undisputed fact that the accused was arrested on 25.06.2008 and was produced before the Court of the Magistrate on 26.06.2008 with a prayer for police remand and at the first instance three days police remand was allowed and the accused was produced before the Court again on 28.06.2008 and on that day again three days police remand was allowed. While the accused was in police custody he was interrogated by I.O. and his statement was recorded. Learned counsel, Ms. Purkayastha in course of her argument has submitted that no statement of the accused was recorded by I.O. which prompted the I.O. to recover Exbt.MO2, the weapon of offence. On our direction learned Addl. P.P. produced the police case diary before the Court. We are aware that the materials in the case diary are not an evidence and cannot be considered by the Court but to have an assurance, with a view to consider the evidence on record we have a glimpse to the case diary and we found that after interrogation I.O. has recorded the statement of the accused on 29.06.2008. 26. Let us now have a glimpse to the evidence on record in respect of the leading to discovery. In his examination-in-chief PW18, the I.O. of the case has stated— “During police remand he gave statement to me and on the basis of his statement the accused led me to a Tilla nearby the place of occurrence, from where in presence of witnesses he discovered a Takkal from the jungle. I seized the Takkal by preparing a seizure list at the P.O in presence of witnesses. This is the seizure list bearing my handwriting and signature, marked Exbt.4/3. …………………………………………………………………………….. …………………………………………….………………………………………..Witness identified Exbt.M.O.2. During recording his statement he gave statement to me that, he is a left hander. On examination of the Takkal I found that the Takkal was made for a left hander. While I arranged his photographs at the time of discovery of the Takkal he also worked by his left hand. He took out the Takkal by his left hand. He pointed the place where the Takkal was lying by the index fingure of his left hand.” The above statement of PW18 has not been shaken in cross-examination. It is, therefore abundantly clear that I.O. has recorded the statement of the accused, on interrogation when the accused disclosed the information about the place where Exbt.MO2 was kept hidden and his intention to discover the same. The following was the cross-examination on behalf of the accused regarding the above fact: “It is not a fact that, I recorded statement of the accused U/s 27 Evidence Act after discovery of the Takkal. It is not a fact that accused never led me for discovery of the Takkal. The following was the cross-examination on behalf of the accused regarding the above fact: “It is not a fact that, I recorded statement of the accused U/s 27 Evidence Act after discovery of the Takkal. It is not a fact that accused never led me for discovery of the Takkal. It is a fact that accused took me on two days for discovery of the Takkal. It is also a fact that, I tied Ushajoy by a rope, when he discovered the Takkal. It is not a fact that, Ushajoy never gave any statement voluntarily. It is not a fact that I gave understanding to Ushajoy that if he gave confessional statement he will be benefited.” The above cross-examination rather suggests that there was a statement of the accused recorded by I.O. and only suggestion was put that the statement was recorded after discovery which is not a fact since we got the assurance from the case diary itself. Therefore, the submission of learned counsel, Ms. Purkayastha that no statement of the accused was recorded regarding his intention to give the information leading to the discovery, is found to be devoid of any merit. 27. There is no legal compulsion that the statement so made by the accused before the I.O. itself is to be proved. The discovery was made in presence of three witnesses, namely PW12 Santajiban Chakma, PW13 Jiban Muluk Chakma and PW15 Madan Chakma. Those three witnesses made consistent statements and their evidence is found worthy enough to place implicit reliance. The statement of PW12 Santijiban Chakma as recorded by learned Sessions Judge reads as follows: “About 11 months back, in the morning at around 10 a.m. I had gone to forest at Tulamura for jhoom cultivation. When I was working in the jhoom field, darogababu of Silachari PS called me at a place inside the forest which is about 1 furlong away from the place where I was working jhoom cultivation. In our presence, Ushajoy Mog of village-Nutanpara brought out a takkle which he kept concealed under jungle. Besides myself, Jiban Muluk Chakma Madan Chakma were also present at that time of recovery of dao by Ushajoy Mog. Darogababu seized the dao under a seizure list and I signed in the seizure list as witness. On identification signature is marked as Exbt.P/4. Besides myself, Jiban Muluk Chakma Madan Chakma were also present at that time of recovery of dao by Ushajoy Mog. Darogababu seized the dao under a seizure list and I signed in the seizure list as witness. On identification signature is marked as Exbt.P/4. This is the takkle which was brought out by the accused Ushajoy in our presence and seized by darotababu in our presence, on identification the takkle is marked as Exbt.M.O.2. Accused Ushajoy took darogababu to the place wherefrom he brought out the dao. Ushajoy in our presence admitted that he had killed Jatindra by the dao which he brought out from inside the jungle. Ushajoy is present today in the Court. (Witness identified the accused in the dock) Cross Examination I cannot say the name of the father of Ushajoy. I do not know any person by name Jatindra. It is not a fact that Ushajoy had been suffering from insanity. It is not a fact that I have deposed falsely against the accused being tutored by darogababu. It is not a fact that accused did not confess before us that he had killed Jatindra Tripura. It is not a fact that darogababu did not seize the Exbt.M.O.2 in our presence.” The statement of PW13 Jiban Muluk Chakma as recorded by learned Sessions Judge reads as follows: “I know Jatindra Tripura of our village. He has been murdered about 10/11 months back. About 5/6 days after the recovery of dead body of Jatindra Tripura, one day in the morning Ushajoy Mog took darogababu and some police personnel in a jungle at Tulamura. Myself Madan Chakma, Santa Jiban Chakma also accompanied darogababu and police on the request of darogababu. After reaching in the jungle, Ushajoy brought out a dao from inside the jungle where he kept concealed the dao in our presence and handed over it to darogababu. On query, Ushajoy admitted that he had killed Jatindra Tripura by the dao which he brought out from inside the jungle in our presence. Then darogababu seized the dao under a seizure list and I also put my signature in the seizure list as witness. On identification signature is marked as Exbt.P-4/1. The witness also identified the Exbt.M.O.2 Ushajoy is present today in the Court. (Witness identified the accused in the dock.) Darogababu also took photograph of Exbt.M.O.2. Then darogababu seized the dao under a seizure list and I also put my signature in the seizure list as witness. On identification signature is marked as Exbt.P-4/1. The witness also identified the Exbt.M.O.2 Ushajoy is present today in the Court. (Witness identified the accused in the dock.) Darogababu also took photograph of Exbt.M.O.2. Cross Examination It is not a fact that Ushajoy did not bring out any dao in our presence. It is also not a fact that darogababu did not seize any dao in our presence. It is also not a fact that Ushajoy did not admit that he had killed Jatindra.” The statement of PW15 Madan Chakma reads as follows: “About 10/11 months back, in the morning at around 10 a.m. darogababu of Silachari PS along with some police personnel and accused Ushajoy Mog of our village came to my house and took me in a jungle with them and thereafter Ushajoy brought out a dao which he kept concealed under bush. Jiban Muluk Chakma, Santijiban Chakma were also with us at the time of recovery of dao at the instance of accused. Accused also in our presence admitted that he had killed Jatindra Tripura of our village by the said dao. Then darogababu seized the dao under a seizure list and I also signed in the seizure list as witness and on identification signature is marked as Exbt.P-4/2. Witness also identified the Exbt. M.O.2(dao) Ushajoy led us to the place wherefrom he had brought out the dao. The accused is present today in the Court. The witness identified the accused in the dock. Cross Examination It is not a fact that accused did not bring the dao from inside the jungle. It is not a fact that Ushajoy did not confess before us that he had killed Jatindra Tripura by Exbt.M.O.2(dao).” Except denial there is nothing in the cross-examination of the above witnesses to discard the evidence regarding discovery of Exbt.MO2 by accused Ushajoy. The discovery of Exbt.MO2 at the instance of the accused, therefore, in our considered opinion has been proved beyond reasonable shadow of doubt and implicit reliance can be placed on the evidence of those three witnesses. The discovery of Exbt.MO2 at the instance of the accused, therefore, in our considered opinion has been proved beyond reasonable shadow of doubt and implicit reliance can be placed on the evidence of those three witnesses. The accused at the time of his examination under Section 313 of CrPC was questioned in respect of recovery of Exbt.MO2 referring to the evidence of those witnesses to which the accused admitted that he was taken to the jungle but he stated that he recovered nothing. There is no other item of evidence to through any doubt on the fact of recovery of Exbt.MO2. This evidence of recovery of Exbt.MO2, therefore, generally corroborates the confessional statement of the accused, and hence in our considered opinion the trial Court rightly arrived at a conclusion of guilt of the accused. 28. Prosecution has also proved the motive behind the commission of the offence. PWs 2, 5, 6, 7, 8 and 9 made consistent statements that the accused Ushajoy Mog suspected the deceased Jatindra Tripura that Jatindra was practicing sorcery/witchcraft and Jatindra applied ‘mantra’(black magic) on the accused and as a result the accused was suffering from various sorts of ailments and therefore the accused threatened Jatindra to kill him. PW5 made a clear and unambiguous statement that the matter was reported to the CPI (M) party office at Suknachari to which they tried to mitigate the dispute through Panchayat baithak but failed. PW5 further stated that about one month before the occurrence Jatindra reported him that Ushajoy threatened that he would kill him and out of fear the deceased left his house at Nutanpara and started permanently residing at Jayantapara. All the material witnesses stated that the deceased Jatindra because of the threat of accused Ushajoy left his house at Nutanpara and started living at Jayantapara. The accused in his confessional statement also made a clear statement that Jatindra applied some ‘mantra’ on him for which he was facing physical problem. Thereafter, Jatindra left the village. He told Jatindra in the presence of members of the party that he will kill Jatindra if he (Jatindra) could not remove ‘mantra’ from his body. Jatindra showed his inability to remove ‘mantra’ from his (accused) body and he (Jatindra) told him (accused) to do whatever he likes. Thereafter, Jatindra left the village. He told Jatindra in the presence of members of the party that he will kill Jatindra if he (Jatindra) could not remove ‘mantra’ from his body. Jatindra showed his inability to remove ‘mantra’ from his (accused) body and he (Jatindra) told him (accused) to do whatever he likes. This statement made by the accused in his confessional statement supports the oral evidence of PWs 2, 5, 6, 7, 8 and 9 that the accused was nurturing animosity in his mind to kill Jatindra because of his blind belief that Jatindra applied sorcery on him. On this point also the accused was examined under Section 313 of CrPC and he simply stated that it was false. The fact that the accused was nurturing animosity against the deceased because of his belief that the deceased might have applied sorcery on him has been proved with sufficient evidence on record and it supports the confessional statement that the accused has committed the murder and none else. It is also proved in the evidence of the above witnesses that the accused threatened to kill Jatindra even in the meeting of the party office where the issue was discussed to resolve. 29. Learned counsel, Ms. Purkayastha has further submitted that the autopsy surgeon has not been examined and postmortem report has not been proved and that is a serious infirmity in the prosecution case for which the judgment and order of conviction and sentence cannot sustain. Learned Addl. P.P. has submitted that the homicidal death of the deceased Jatindra has not been disputed by the defence and the accused only pleaded his innocence and under such circumstances there was no need of examination of the autopsy surgeon and no requirement of proving the postmortem report. All the witnesses of fact including the informant stated that Jatindra was found dead with cut injury on his neck, forehead, etc. The inquest report has been proved by I.O. and marked as Exbt.2/2. The witnesses to the inquest report also proved their signatures in the report and stated the fact that the I.O. has prepared inquest report over the dead body which shows fatal injuries on the person of the deceased. Defence nowhere even made a suggestion that death of Jatindra was not caused because of the cut injuries found on his person. The witnesses to the inquest report also proved their signatures in the report and stated the fact that the I.O. has prepared inquest report over the dead body which shows fatal injuries on the person of the deceased. Defence nowhere even made a suggestion that death of Jatindra was not caused because of the cut injuries found on his person. Homicidal death of Jatindra has not been disputed by the defence in any manner. At the time of his examination under Section 313 of CrPC vide question Nos.1 and 2 the accused was specifically asked about the evidence of PWs 1 and 2 that they found dead body of Jatindra laying on the foot track in the forest at Tulamura with injuries. The accused replied that he had heard about it. He has not stated anything that Jatindra did not die a homicidal death; rather in his confessional statement he has clearly made the statement that he inflicted blows on the neck of Jatindra with a takkal. All the facts and circumstances brought on record have proved it beyond reasonable doubt that Jatindra died a homicidal death on receipt of the cut injuries on his neck. While the evidence on record clearly establishes a fact, there is no requirement of an opinion evidence as contemplated in Section 45 of the Evidence Act. An expert opinion is required when the Court cannot take an effective decision on the issue without the opinion of an expert. It is a settled law that where the evidence regarding cause of death is clear the expert evidence regarding the cause of death is simply academic. In the present case, Jatindra died a homicidal death has not been challenged and/or disputed in any manner by the defence. Neither during cross-examination of the prosecution witnesses nor at the time of examination of the accused under Section 313 of CrPC any statement made that the death of Jatindra was because of any other reason except that of the injuries inflicted by the accused as stated by him in his confessional statement. Under such circumstance, non-examination of the autopsy surgeon in respect of the postmortem report has simply become academic in our considered opinion. Under such circumstance, non-examination of the autopsy surgeon in respect of the postmortem report has simply become academic in our considered opinion. We may gainfully refer here the decisions of the Orissa High Court and Jammu & Kashmir High Court for drawing an inference though the facts are not exactly same to that of the fact of the present case. A Division Bench of the Orissa High Court in the case of Balgopal Panda v. State reported in 1990 CRI LJ 1848(para 17) has observed that— “……………………………….The injury reports were, however, not marked as exhibits, presumably because the Medical Officer who examined the injured was not summoned to prove the injury reports. The injury reports, however, were prepared by a pubic officer in discharge of his public duties on requisitions being sent by the Investigating Officer for examination of the injured and so they can be referred to as being public documents……………………………………………”. In the case of Balbir Singh v. State a Division Bench of the Jammu & Kashmir High Court reported in 1994 CRI LJ 1079, has observed that the postmortem examination is not always necessary to prove the fact of murder. In that reported case a lady died receiving 100 percent burn injuries and the doctor who attended the injured and recorded her dying declaration deposed before the Court that he found the lady died because of 100 percent burn injuries and no postmortem was conducted over the dead body since he was sure that the death was caused because of cardio respiratory failure as a result of burning. In that case no postmortem was done whereas the Court held that it was a homicidal death. The postmortem report is in judicial record. A postmortem report cannot be treated as a report of Government Scientific expert as contemplated in Section 293 of CrPC. However, for fair ends of justice we have a glimpse to the postmortem report which is already on record and we find nothing to observe that had the postmortem report was exhibited or the autopsy surgeon was examined the case would have been otherwise than that what is concluded by the trial Court. However, for fair ends of justice we have a glimpse to the postmortem report which is already on record and we find nothing to observe that had the postmortem report was exhibited or the autopsy surgeon was examined the case would have been otherwise than that what is concluded by the trial Court. It was the duty of the prosecution to examine the autopsy surgeon and to prove the postmortem report since it is a case of murder but in the given facts and circumstances of this case where the accused himself admitted that he murdered the deceased Jatindra and where in the cross-examination of all the material witnesses no point was raised regarding the cause of death of the deceased Jatindra, we are of the considered opinion that non-examination of the medical officer and not proving the postmortem examination report formally is simply academic and it has no affect on the prosecution case. 30. Learned counsel, Ms. Purkayastha also submitted that the bloodstains seized from the spot and the wearing apparels of the deceased were sent to the Government Scientific Expert including the seized Exbt.MO2, i.e. the weapon of offence. Report was also collected and placed on record but that report has not been exhibited. The scientific expert’s report is admissible under Section 293 of CrPC. We are of considered opinion that there is no case of the defence that the bloodstains seized from the spot were not human blood or not that the bloodstains found on the wearing apparels of the decease were not human blood. However, in the Govt. Scientific expert’s report which is found in the judicial records we find that the seized clothes contain human blood and the bloodstains seized by I.O. were human blood. Exbt.MO2 was seized by I.O. on production of the accused and the seizure list has been exhibited and proved by I.O. as well as PWs 12, 13 and 15. There is no mention in the seizure list that Exbt.MO2 was containing blood. The report submitted by Government Scientific expert shows that no blood was found in Exbt.MO2. The accused in his confessional statement clearly stated that after the occurrence he left ‘dao’ in the jungle and fled away. In his confessional statement he has not stated anything whether ‘dao’ was containing the blood or not. The report submitted by Government Scientific expert shows that no blood was found in Exbt.MO2. The accused in his confessional statement clearly stated that after the occurrence he left ‘dao’ in the jungle and fled away. In his confessional statement he has not stated anything whether ‘dao’ was containing the blood or not. We have examined the statement of the accused recorded by I.O. before leading to discovery and before forwarding him for recording his confessional statement and we have a glimpse to that statement. That statement is not a part of evidence. However, we are satisfied that at the time of seizure of ‘dao’ on production of the accused there was no bloodstain in Exbt.MO2 and therefore no bloodstain was found by the Government Scientific expert. It was the duty of the prosecution to make the report as an exhibit in course of trial but the prosecution has failed to discharge their duty to that effect. However, we are of the considered opinion that for failure of the prosecution, justice should not suffer while the case is otherwise proved on the basis of the evidence already on record. 31. It is a settled law that a witness can tell a lie but circumstances never. Circumstantial evidence means communication of facts creating a network from which there is no escape for accused because the facts taken as a whole do not admit of any inference except the guilt of the accused. The circumstances that the accused believed that the deceased Jatindra Tripura applied ‘mantra’(black magic) practicing sorcery and therefore the accused was suffering from ailments and the accused therefore blaming the deceased and threatened to kill him and the further circumstances of recovery of the weapon of offence on the information given by the accused supported the confessional statement made by the accused and therefore we find no infirmity in the trial Court’s judgment and the appeal is therefore bound to fail. 32. Accordingly the appeal stands dismissed. The convict should serve out the sentence. 33. Send back the L.C. records along with a copy of this judgment.