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2016 DIGILAW 414 (GAU)

Aghnu Orang v. State of Assam

2016-05-12

A.K.GOSWAMI, RUMI KUMARI PHUKAN

body2016
JUDGMENT : A.K. Goswami, J. Heard Mr. S. Borgohain, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 28.11.2011 passed by the learned Sessions Judge, Sivasagar, in Sessions Case No.29(S-S)/2010, whereby the appellant was convicted under Sections 302/201 IPC and sentenced to suffer imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand), in default of payment of fine, to suffer rigorous imprisonment for six months for the offence under Section 302 IPC; to suffer rigorous imprisonment for three years and to pay fine of Rs.1,000/- (Rupees One Thousand), in default of payment of fine, to suffer rigorous imprisonment for one month for the offence under Section 201 IPC. Both the sentences are to run concurrently. 3. One Montu Gogoi, who is the brother of the deceased Mintu Gogoi, lodged an ejahar on 30.05.2009 with Geleky Police Station stating that Mintu Gogoi, accompanied by the appellant, went in search of one Debaru Orang, who was working in the small tea garden of Mintu Gogoi but he had not come back home and he and the members of the family suspected the appellant to be responsible in respect of Mintu Gogoi going missing. A G.D. Entry was registered being Geleky Police Station No.732 and investigation was started on the basis of the said G.D. Entry. A report was submitted by the Investigating Officer to the Officer-in-Charge of Geleky Police Station that during investigation the appellant led the police and showed them the dead body of Mintu Gogoi concealed in a dump of ‘Kalmou’ (a kind of vegetation) in the Kalkhuwa ‘dubi’ of Namdang river. It is stated therein that he came to learn that on the ruse of Debaru Orang being not at home, the appellant called Mintu Gogoi away from home at around 6:30 PM on 29.05.2009 and took him to the jungle and on a plan being hatched by them, both of them killed Mintu Gogoi at about 8:00 PM of 29.05.2009 by hacking in his neck with a ‘mesi dao’ and thereafter, carried the dead body and concealed it. The Investigating Officer was the Officer-in-Charge himself and based on the said report, Geleky Police Station Case No.20/2009 under Sections 302/201/34 IPC was registered. 4. The Investigating Officer was the Officer-in-Charge himself and based on the said report, Geleky Police Station Case No.20/2009 under Sections 302/201/34 IPC was registered. 4. During the course of investigation a confessional statement of the appellant was also recorded before the Magistrate under Section 164 Cr.PC. Upon conclusion of investigation, charge sheet was submitted by police on 17.08.2009 against the appellant and Debaru Orang, showing him as an absconder. 5. By an order dated 10.02.2010 in G.R. Case No.581/2009 corresponding to Geleky Police Station Case No.20/2009, the learned Magistrate committed the case to the Court of the learned Sessions Judge as the case was exclusively triable by the court of sessions and accordingly, Sessions Case No.29(S-S)/2010 was registered in the Court of the learned Sessions Judge, Sivasagar. Charge under Sections 302/201 IPC and alternatively, under Sections 302/201/34 IPC, were framed against the appellant. The same being read over and explained to the appellant, he pleaded not guilty and claimed to be tried. 6. During trial, prosecution examined 13(thirteen) witnesses. Defence adduced no evidence and plea of the defence was that of denial. 7. During trial, the ejahar, seizure list, inquest report, statement of the appellant under Section 164 Cr.PC, post-mortem report, G.D. Entry with the copy of the dead body challan, confessional statement and the charge-sheet were exhibited and proved as Exhibits-1, 2, 3, 4, 5, 6, 7, 8 and 9, respectively. 8. PW-1 is the informant and he stated that both the appellant and Debaru were permanent workers in the tea plantation of his deceased brother and on that day both of them were absent in their work and as such the work had to be done by engaging some other labourers. After coming home around 5:00 PM, deceased went out in search of the employees and when he did not return till 6:30 PM, they tried to contact him over mobile phone which was found to be switched off. They stayed back in the house as rain started and they thought that he might be staying with some relatives. On coming to know from Mintu’s wife next morning that he did not return home, they suspected foul play. He started making enquiries along with his uncle Partha Pratim Gogoi and in the process had gone to the house of the appellant who was not available at home. On coming to know from Mintu’s wife next morning that he did not return home, they suspected foul play. He started making enquiries along with his uncle Partha Pratim Gogoi and in the process had gone to the house of the appellant who was not available at home. They looked for him in all possible places of his visit and found him carrying a ‘dao’ at about 9:00 AM going towards the brick field. On queries being made, he disclosed that Mintu had visited the plantation in the evening and he went to his house by taking an unused by-lane. This aroused their suspicion. Later on, police came to their residence and again had taken him to the residence of the appellant wherein police interrogated the appellant and seized a stained ‘dao’ and blood-stained clothes from his possession and thereafter, again took him to the police station. Later on, learning about recovery of the dead body, he rushed to the place and found police along with the appellant taking out a dead body from ‘Kalmou dubi’ where the dead body was tied to a fixed bamboo post under the river water. He identified the dead body to be that of his brother. He proved the ejahar lodged by him as Exhibit-1. It is stated that though he was present at the time when Material Exhibits-1, 2 and 3 were seized on being produced by the appellant in his presence, police did not obtain his signature. In his cross-examination, he stated that Mintu was a Grade-IV employee of the Public Health Engineering Department and he owned a tea plantation area covering about 15 Bighas. He denied the suggestion that the aforesaid land belonged to the absconding accused Debaru. 9. PW-2 is a key witness who had seen the deceased and the appellant leaving together and had also seen the appellant coming back after about 20 minutes. PW-2 stated that he frequently used to visit the house of the appellant and on the day of the occurrence also in the evening time he had visited the house of the appellant. The deceased had also visited the house of the appellant looking for Debaru Orang. The appellant was not at home and the parents of the appellant informed the deceased that the appellant could be in the farm house of one Dulu Boruah. The deceased had also visited the house of the appellant looking for Debaru Orang. The appellant was not at home and the parents of the appellant informed the deceased that the appellant could be in the farm house of one Dulu Boruah. Mintu went out and later on both of them returned to the house of the appellant. The appellant and Mintu had talked about regarding the whereabouts of Debaru and both of them decided to search for Debaru. Mintu handed over the key of his bicycle to him which he had left at the residence of one Gokul Baruah situated about 500 Meters away from the house of the appellant. The appellant had taken his ‘dao’ and both of them had left towards the southern direction and after about 20 minutes when he was about to leave the house of the appellant, he found the appellant at the gateway of his house without carrying the ‘dao’. 10. On enquiry, appellant informed him that he led Mintu towards his house by crossing a bamboo bridge of Bornoi. Thereafter, the appellant accompanied him to the house of Gokul Baruah and handed over the key of the bicycle of Mintu to the wife of Gokul Baruah. It was about 7:20/7:30 PM and thereafter they dispersed towards their respective homes. In the next morning around 8:30 AM, one Jitu and Montu had enquired him of the whereabouts of Mintu Gogoi and he informed him about the details of his previous meeting with Mintu at the appellant’s house. He came to learn at around 11:00 AM that police apprehended the appellant and thereafter, he accompanied the police along with the appellant to the house of the appellant wherein the appellant produced the ‘dao’, in his presence, which he had carried in the previous evening. The police also seized the wearing clothes of the appellant. He also deposed that at about 4:00 PM the appellant led the police to ‘Kalmou dubi’ and pointed at the place, in his presence, where the dead body of Mintu was concealed. The dead body was recovered and at that time, Jitu and Montu, bothers of the deceased and other people were also present. He was also a witness to the seizure list. 11. PW-3 had merely gone to see the dead body at Geleky Police Station. The dead body was recovered and at that time, Jitu and Montu, bothers of the deceased and other people were also present. He was also a witness to the seizure list. 11. PW-3 had merely gone to see the dead body at Geleky Police Station. He deposed that the deceased was a Grade-IV employee with a water treatment plant besides having tea plantation. 12. PW-4 is a distant relation of the deceased and he had gone to the police station upon coming to know that the appellant had been arrested and at that time the Officer-in-Charge was recording his statement but he did not hear what the appellant stated. He had also deposed that he, along with other villagers, had looked for Mintu Gogoi. 13. PW-5 was informed by his friend Niranta Gogoi that his elder sister’s husband was missing and on his request, PW-5 had gone to Dhanasana jungle in search of brother-in-law of Niranta Gogoi. In the jungle, he met police personnel along with the appellant at about 3:30 PM. Police took them to a ‘dubi’ (deep and broad part of a river). He got down in the river and pulled out the dead body of Mintu Gogoi as he was asked by the police to go down in the water and search for the corpse. He had no acquaintance with the appellant and he did not ask the appellant anything about the incident. 14. PW-6 is also a relative of the deceased and he was also informed by Niranta Gogoi over telephone about Mintu’s missing and on his request had gone to the house of the appellant wherein he found police interrogating him and when asked, he produced a long ‘dao’ and one of his used jeans pant (Material Exhibit-1 and Material Exhibit-2), respectively which were seized by the police. Thereafter, he, Niranta, Dharmendra and many others had gone towards Dhansena jungle in search of Mintu but as no clue was found they went back home. After some time, Niranta again informed him that he had some information about the corpse and asked him to go to the part of the ‘dubi’ and on his asking, he went there and found a good number of people being in attendance. After some time, Niranta again informed him that he had some information about the corpse and asked him to go to the part of the ‘dubi’ and on his asking, he went there and found a good number of people being in attendance. In the meantime, police had arrived at that place along with the appellant and the appellant, pointing out to the ‘dubi’, stated in his presence that Mintu’s dead body was there. He had stated that Md. Inamul Hussain (PW-5) went down in the water and fished out the dead body which had two big sized cut marks – one on the back side of the neck and other in the front side of the neck. He proved his signature as Exhibit-3(1) in the inquest report. In cross-examination, he had stated that he was not aware if the deceased had opened a tea garden in the land of Debaru Tanti. 15. PW-7 is Niranta Gogoi who had been mentioned by PW-5 and PW-6. On being informed over telephone by his sister Bhanu Gogoi that her husband had not returned home, as the deceased used to return home very late at night he was not unduly worried. Next morning he had gone to his brother-in-law’s house along with Dharmendra (PW-3). He stated that he along with PW-3 and some of the youth had looked for his brother-in-law and during that time Sanjib Borah (PW-2) had told them that he had seen the appellant going with the deceased in search of Debaru Orang, who was working in the garden and was residing in the brother-in-law’s house. The appellant was found in his own house and on being asked about the deceased, appellant replied that though they had gone in search of Debaru Orang, not finding him, he had escorted the deceased across the bridge over the tributary Bornoi near the river Namdang and thereafter parted his company. Description of the route which was stated to have been taken by the appellant along with Mintu, aroused their suspicion and Dharmendra (PW-3) started searching for the missing person here and there. Description of the route which was stated to have been taken by the appellant along with Mintu, aroused their suspicion and Dharmendra (PW-3) started searching for the missing person here and there. He deposed that police interrogated the appellant and took him to the police station and while they were continuing the search, the police took the appellant with them and went to the ‘dubi’ in question and in their presence showed the place where Mintu’s dead body was concealed and when the body was lifted from the river, he identified it to be the dead body of Mintu and it had two cuts, one in the front and one in the back side of the neck. He was a witness to the inquest report. He also deposed that before the appellant was taken for recovering the dead body, the appellant had produced before the police from his house a ‘mesi dao’ and the jeans pant, which were seized and he was a witness to the seizure list. He was also a witness to the seizure of material Exhibit-3 ‘Gamosa’. The police also took statements of the appellant in his presence which is Exhibit-4. In his cross-examination, he stated that he did not see any blood on the seized ‘dao’ and that the deceased was working in the Public Health Department. 16. PW-8 stated that the appellant had showed to the police the dead body of Mintu. He was also a witness to the inquest report Exhibit-3. In his cross-examination, he deposed that the appellant had stated that he along with Debaru had killed Mintu and had concealed the dead body. 17. PW-9 was also present at the time when the dead body of Mintu was recovered. He also stated that the police was there along with the appellant and dead body was taken out from ‘Kalmou’ on being shown by the appellant. He is a witness in the inquest report (Exhibit-3). 18. PW-10 is the doctor who conducted the post-mortem examination. He proved the post-mortem report as Exhibit-5. According to him, the injuries sustained by the deceased, in the back side of the neck and in the front side, was individually sufficient to cause death and the injuries could be caused by weapon like material Exhibit-1 ‘dao’. 19. PW-11 is the Judicial Magistrate who recorded the statement of the appellant under Section 164 Cr.PC (Exhibit-8). According to him, the injuries sustained by the deceased, in the back side of the neck and in the front side, was individually sufficient to cause death and the injuries could be caused by weapon like material Exhibit-1 ‘dao’. 19. PW-11 is the Judicial Magistrate who recorded the statement of the appellant under Section 164 Cr.PC (Exhibit-8). There was no cross-examination of PW-11. 20. PW-12 is the Investigating Officer. In his evidence he had stated that on interrogation, the appellant confessed that he and Debaru together had killed Mintu with a ‘mesi dao’ at about 7:00 PM on 29.05.2009 and had hidden the body under ‘Kalmou’ plants in the middle of Namdang river and accordingly, he had set off to the place where the dead body was hidden. Some people had also accompanied the police and the appellant had shown the spot where the dead body was concealed. The body was fished out and it bore two ‘dao’ blows on the neck. After holding the inquest he sent the dead body for post-mortem examination by dead body challan Exhibit-7. He also deposed that before going to the place of occurrence, the accused had given the statement leading to discovery, Exhibit-4 where Exhibit-4(2) is the signature of the appellant. He also deposed towards seizure list Exhibit-2 and material Exhibits-1, 2 and 3. According to him, the ‘Gamosa’ bore blood stains. Exhibit-8 is the sketch map which was drawn by him (wrongly marked as Exhibit-8 as statement of the appellant under Section 164 Cr.PC was already marked as Exhibit-8). He also stated that though attempt was made to apprehend Debaru, he was absconding. Subsequently, as he had to go for police training, the Sub Inspector of Police, Jitendra Nath Das had submitted the charge sheet. In his cross-examination he had stated that both appellant and Debaru had worked in a tea garden of the deceased and that because deceased had not paid them much of their salary they had killed Mintu. 21. PW-13 is the police officer who submitted the charge sheet, Exhibit-9. He had stated that he made attempts to apprehend Debaru but could not arrest him as he had been absconding. 22. Mr. Borgohain has submitted that a perusal of the confessional statement recorded under Section 164 Cr.PC would go to show that he had not confessed that he had a role to play in the killing of Mintu Gogoi. He had stated that he made attempts to apprehend Debaru but could not arrest him as he had been absconding. 22. Mr. Borgohain has submitted that a perusal of the confessional statement recorded under Section 164 Cr.PC would go to show that he had not confessed that he had a role to play in the killing of Mintu Gogoi. It is submitted by him that in such statement he had clearly stated that on being provoked by Mintu Gogoi on a kick given by him to Debaru, Debaru had snatched the ‘dao’ from him and dealt blows in the neck of Mintu Gogoi in quick succession and that it was on the fear of being implicated, he helped Debaru in concealing the dead body and, therefore, at the most, the appellant can be convicted under Section 201 IPC. He had submitted that in his Section 313 Cr.PC statement also, the appellant had admitted that he had showed the spot from where the dead body was recovered. However, the learned counsel emphatically submits that merely because he had assisted Debaru in concealing the evidence, does not lead to the inevitable conclusion that he had also committed the murder of Mintu. It is submitted that the entire statement under Section 161 Cr.PC, which had been exhibited as Exhibit-4, cannot be relied upon at all and in any case, even in such statement the appellant had only stated that it was Debaru who had hacked Mintu Gogoi in the neck. Such statement cannot also be taken as a statement leading to discovery as a perusal of the said Exhibit-4 would demonstrate that by then recovery of the dead body had taken place and, therefore, there is no evidentiary value of Exhibit-4. It is submitted by him that evidence on record and, more particularly, the evidence of PW-2 goes to show that it is not that the appellant had persuaded the deceased to go looking for Debaru in the forest but on the contrary, the deceased had gone himself looking for the appellant and then only they had gone out in search of Debaru after having discussed about the same. It is submitted by him that if Mintu had not gone to the residence of the appellant, there may not have been any occasion for the appellant to accompany the deceased on the fateful evening. It is submitted by him that if Mintu had not gone to the residence of the appellant, there may not have been any occasion for the appellant to accompany the deceased on the fateful evening. Merely because he had gone with Mintu, he could not be fastened with the liability of murder of Mintu. Appellant’s statement that he had parted company with Mintu after some time, viewed in the context of the confessional statement, Exhibit-8, may be a false statement, but then also, that will not be enough to convict the appellant in absence of any other tangible material on record to hold him guilty under Section 302 IPC, he submits. According to him, the prosecution could not prove the guilt of the appellant beyond reasonable doubt and even though there may be some suspicion, same will not warrant conviction of the appellant under Section 302 IPC. The learned counsel places reliance on the judgment in the case of Majenderan Langeswaran -Vs- State of NCT of Delhi & Anr., reported in (2013) 7 SCC 192 where the principles for appreciation of circumstantial evidence are laid down emphasizing that onus lies on prosecution to prove that chain of events is complete and not to leave any doubt in the mind of court. He also placed reliance in the case of Sangili @ Sanganathan -Vs- State of Tamil Nadu, reported in (2014) 10 SCC 264 to emphasise that suspicion cannot take the place of proof. 23. Ms. Jahan submits that the appellant had not as such confessed about the murder of Mintu but had attributed committing of murder of Mintu by Debaru. However, he has admitted his presence at the time of the incident. The recovery of material Exhibits-1, 2 and 3 from the residence of the appellant leaves no room for doubt that it was the appellant who had committed the murder of Mintu and, therefore, no interference is called for with regard to the impugned judgment. 24. We have considered the submissions of the learned counsel for the parties and perused the materials on record. 25. A perusal of the information based on which G.D. Entry was registered goes to show that the informant Montu Gogoi, PW-1, was aware that his brother Mintu had taken the appellant with him in search of Debaru, who is still not found and untraceable. 25. A perusal of the information based on which G.D. Entry was registered goes to show that the informant Montu Gogoi, PW-1, was aware that his brother Mintu had taken the appellant with him in search of Debaru, who is still not found and untraceable. It appears from the note of the Officer-in-Charge based on which Geleky Police Station Case No.20/2009 under Sections 302/201/34 IPC was registered that the appellant had called Mintu from his home on the pretext of making a search for Debaru. None of the witnesses had deposed that it was the appellant who had called Mintu to make a search for Debaru. There is the positive evidence of PW-2 who had seen both the appellant and the deceased together. He is the only witness to have seen the appellant and Mintu together and, therefore, necessarily his evidence assumes significance. The evidence of PW-1 goes to show that Mintu Gogoi had gone out of his house on his own. PW-2 appears to be a frequent visitor to the house of the appellant. Appellant’s parents appear to be residing with him or near about his residence as PW-2 had stated in his evidence that parents of the appellant had indicated to the deceased where the appellant could be. Though PW-2 had stated that the deceased found the appellant in the house of Dulu Baruah, Dulu Baruah having not been examined, it cannot be stated with certainty as to whether the appellant was found to be in the house of Dulu Baruah. In any case, the same is not material. The unimpeached evidence of PW-2 is that the deceased came along with the appellant to the house of the appellant and that after discussing about Debaru, both of them decided to search for Debaru. This will evidently go to show that there was no allurement or inducement on the part of the appellant to lay a trap on the deceased. The categorical assertion of PW-2 in his evidence-in-chief is that he found the appellant again at the gateway of his house after about 20 minutes without carrying the ‘dao’. The time was then about 7:20/7:30 PM. Going by his deposition, we do not find that the appellant was in any way jittery or that he displayed any kind of suspicious behaviour and he had also accompanied PW-2 to the house of Gokul Boruah. The time was then about 7:20/7:30 PM. Going by his deposition, we do not find that the appellant was in any way jittery or that he displayed any kind of suspicious behaviour and he had also accompanied PW-2 to the house of Gokul Boruah. The evidence of PW-2 further shows that in his presence when he had accompanied the appellant to the house of the appellant, the appellant had produced a ‘dao’ which he had carried in the previous evening. The ‘dao’ is a common implement found in every household and his statement in the subsequent part of the evidence that the ‘dao’ recovered was the very same ‘dao’ has to be taken with a pinch of salt bearing in mind that he had in the earlier part of the statement stated that the appellant came back without carrying any ‘dao’. He did not depose that there was any blood stain on the wearing apparel of the appellant. They had also walked together a distance of about 500 meters to the house of Gokul Boruah to hand over the key of the cycle of the deceased. It also appears from the evidence of PW-2 that PW-1 and his brother Jitu had come over to his house at around 8:30 AM of 30.05.2009 and in that meeting he shared the information about seeing Mintu with the appellant. It appears that this is how PW-1 came to learn about the appellant accompanying the deceased and based on that information given by PW-2, ejahar was lodged by PW-1 that the deceased was accompanied by the appellant and after that he had gone missing. 26. When PW-1 met the appellant at around 9:00 AM of 30.05.2009, then also the appellant had maintained that he had accompanied Mintu for some distance towards his house. Though he deposed that police seized blood-stained clothes and a stained ‘dao’, seizure list Exhibit-2 does not show that the ‘dao’ or the blue jeans pant was having any stains. In the ‘Gamosa’ material Exhibit-3, of course, it is indicated that blood stains are found in two places. 27. From the evidence of PW-10, it is seen that he found the following injuries on the deceased:- “(i) One deep incised wound in front of the neck- 5” in length, 4” in depth and 3” in width, with fracture of the first and second cervical vertebrae. 27. From the evidence of PW-10, it is seen that he found the following injuries on the deceased:- “(i) One deep incised wound in front of the neck- 5” in length, 4” in depth and 3” in width, with fracture of the first and second cervical vertebrae. (ii) One deep incised wound on the back of the neck- 2” below the occipital protuberance with fracture of the second cervical vertebrae.” According to him, the injuries, which are homicidal in nature, are individually sufficient to cause death and such injuries can be caused by weapon like material Exhibit-1, a “dao”. 28. At this stage, it will be relevant to extract herein below some of the answers given by the appellant in respect of some questions put to him during his statement under Section 313 Cr.PC:- “Q. 7. He has further stated that while investigating, the police seized from your house some blood stained clothes and a blood stained dao. Ans. – No. Q. 8. He has also stated that at about 4.30 p.m. you produced deceased Mintu Gogoi’s dead body which was tied to bamboo in the Namdang river water. Ans. – I showed the spot. Q. 9. He has also stated that you produced before the police Mat. Ext. 1 the seized dao from your house. Ext. 2 is the blood stained clothes and Mat. Ext. 3 is the blood stained towel. Ans. – Yes. Q. 16. He has stated that later the police apprehended you and that in presence of the said witness you produced a dao from your house. Ans. – Police took the dao from my house. Q. 18. He has stated that at about 4 P.M. that day you led the police to Kalkhowa ‘dubi’ of Namdang River and took out Mintu Gogoi’s dead body from the river. The said witness identified the dead body. Ans. – Yes. Q. 25. He has also stated that police took you along to the ‘dubi’ of Namdang river. The said witness and many other people went there. In presence of the said witness, you showed the police the ‘dubi’ stating that Mintu Gogoi’s dead body was there. Ans. – Yes. Q. 30. He has also stated that the police men of Geleki thana went to Namdang river Kalkhowa ‘dubi’ taking you along with them and you showed to them the ‘dubi’ where Mintu Gogoi’s dead body had been concealed. Ans. – Yes. Q. 30. He has also stated that the police men of Geleki thana went to Namdang river Kalkhowa ‘dubi’ taking you along with them and you showed to them the ‘dubi’ where Mintu Gogoi’s dead body had been concealed. The dead body was lifted from the ‘dubi’. Ans. – Yes. Q. 32. He has further stated in evidence that before you lead (omitted in the original) to recover the dead body, you had produced the mit-dao used in the incident and also the jeans trousers and ‘gamosa’ (a towel) he had worn at the time of the incident; that police seized those articles vide Ext. 2 the seizure list. Material Ext. 1 is the seized dao, material Ext. 2 is a piece of jeans trousers and material Ext. 3 is the gamocha. Ans. – Yes. Q. 34. P.W. Rikha Kanta Gogoi has averred in evidence that (the occurrence) took place on 29/5/2009. You showed Mintu Gogoi’s dead body which was concealed under ‘kalmou’ (……..) in Kalkhowa ‘dubi’ of Namdang river and then the dead body was recovered. Ans: - Yes. Q. 36. P.W Binode Saikia has adduced in evidence that the occurrence took place one year ago. When you showed, Mintu Gogoi’s dead body was recovered from under ‘Kalmou’ in Kalkhowa ‘dubi’ of Namdang river. Ans:- Yes. Q. 40. She has further stated that you were again produced before her on 02/06/2009. She explained to you that you were not bound to confess your guilt and what would be the outcome if you make a confession. After that, you confessed your guilt on your free will. Ext. 8 is your confessional statement. Ext. 8(1) and 8(2) are your signatures. Ans: Yes, I confessed my guilt. Q. 42. He has also stated that during the investigation he questioned the witnesses; that finding you at home he took you to the P/S on 30/05/2009 for interrogation. When interrogated in the P/S you confessed that you together with Debaru Orang killed Mintu Gogoi at about 7 O’clock in the night of 29/05/2009 by cutting him with a ‘mesi’ dao and had concealed the body in the root of ‘kalmou’ plant in the middle of Namdang river. Ans: No. Q. 43. When interrogated in the P/S you confessed that you together with Debaru Orang killed Mintu Gogoi at about 7 O’clock in the night of 29/05/2009 by cutting him with a ‘mesi’ dao and had concealed the body in the root of ‘kalmou’ plant in the middle of Namdang river. Ans: No. Q. 43. He has stated that on the basis of your confession and as led by you he started at about 4 p.m. on 30/05/2009 taking you along; that at 4.45 he reached the place that you showed. The spot is Kalkhowa ‘dubi’ of Namdang river. That a police force and the public were with him. Ans: Yes Q. 44. He has also stated that then you showed the spot where you had concealed Mintu Gogoi’s dead body. The spot is Kalkhowa ‘dubi’ in the middle of Namdang river. Ans: Yes. Q. 46. He has further stated that searching in the place that you showed, the public found Mintu Gogoi’s dead body. Ans: yes. Q. 54. Do you have anything to say? Ans: I have not committed any offence. Debaru Orang absconded after committing offence.” 29. The confessional statement of the appellant, Exhibit-8 reads as follows:- “I was doing the work of tea plants in the garden of Mintu Gogoi Sir since last four years. My friend Debaru Orang worked with Mintu for a period of 7(seven) years. The occurrence took place at about 7 P.M. on 29.5.2009. At about 6 P.M. Mintu Gogoi had come to my house in search of Debaru Orang. I went with Mintu Gogoi to the forest in search of Debaru. Since it was night, I carried a ‘mesi dao’ with me. We went to forest. In the middle of forest we met Debaru. He had just returned from some place. He said something when Mintu Gogoi kicked him. Then Debaru took the dao that was in my waist and dealt a blow with it in the neck of Mintu Gogoi. In quick succession, he dealt another blow on him whereupon Mintu Gogoi fell on the ground. Then Debaru said to me, “both of us will be implicated if it is out. Let us throw the dead body silently.” I accompanied Debaru. Both of us carried the dead body of Mintu Gogoi. I held the legs and Debaru held the head. We took the body to the Namdang River which was nearby. Then Debaru said to me, “both of us will be implicated if it is out. Let us throw the dead body silently.” I accompanied Debaru. Both of us carried the dead body of Mintu Gogoi. I held the legs and Debaru held the head. We took the body to the Namdang River which was nearby. We threw the dead body into that river. After throwing it, we were going along the bank. We saw the dead body flowing about 100 meters by the water. Debaru pushed the dead body into the dump of ‘Kalmou’ plants, so that no part of the dead body is visible. I left for home. Debaru said that he would go to his brother’s house. When the police arrested me on Sunday, I went along with them and showed the dead body from under the dump of ‘Kalmou’ plants.” 30. Mr. Borgohain is correct in submitting that the entire statement of the appellant made before the police was exhibited at Exhibit-4. It is to be borne in mind that confessional statements made before the police are not admissible in evidence and only a disclosure statement is admissible. In the last portion of the said statement, it is recorded as follows:- “……... Further, I went to the P.O. along with the police and showed to them the dead body, which had been concealed in the middle of the ‘Kalmou’ plants in Kalkhowa ‘dubi’ of Namdang river. Then the police recovered the dead body. Besides that, as shown by me, they recovered from my house the ‘mesi dao’ that I used in the crime and seized it. They took my signature in the seizure list. This much I have to say.” 31. Perusal of the aforesaid statement would go to show that the statement was recorded in writing only after the dead body was recovered. After recovery is effected reducing a statement made by the accused, which led to discovery of the dead body practically carries no meaning. We have noticed that Exhibit-4 also contains the signature of the accused. It is to be noted that Sub-Section (1) of Section 162 debars a Police Officer from obtaining signature of a person, whose statement he may have reduced into writing. We have noticed that Exhibit-4 also contains the signature of the accused. It is to be noted that Sub-Section (1) of Section 162 debars a Police Officer from obtaining signature of a person, whose statement he may have reduced into writing. Be that as it may, it is settled position in law that Section 27 of the Evidence Act does not provide for writing the information, which may have been provided by an accused and, therefore, the information can be oral, which can be proved against the accused, who gives such information. Though a written record of the statement made by the accused leading to discovery of a fact is not necessary to make the statement admissible in evidence, there must be evidence on record to show that before discovery of a fact took place, a statement was made by the accused. 32. In the instant case, evidence of PW-12 goes to show that before they had set out to recover the dead body, he had made a statement where the dead body was kept concealed and thereafter, when they had reached the place, the appellant had showed the spot where the dead body was concealed. In his confessional statement also (Exhibit-8), the appellant had stated that he had showed the dead body to the police under the dump of ‘Kalmou’ plants. From his statements recorded under Section 313 Cr.PC also, it becomes apparent that the appellant admitted to have shown the place where the dead body was hidden and based on the information furnished by him, the dead body was recovered. Therefore, we are of the opinion that there was disclosure statement made by the accused on the basis of which the dead body was recovered. 33. In his statement under Section 164 Cr.PC, the appellant had stated how and in what manner Mintu Gogoi came to be killed by Debaru. He had also confessed that he had assisted Debaru in trying to destroy evidence by helping Debaru conceal the dead body. The question is whether the prosecution had been able to establish beyond reasonable doubt that it was the appellant or the appellant in collaboration with Debaru who had committed the murder of Mintu. 34. The act of the appellant carrying a ‘dao’ while venturing into the forest in the evening hours by a labourer is not, per se, an incriminating fact. 34. The act of the appellant carrying a ‘dao’ while venturing into the forest in the evening hours by a labourer is not, per se, an incriminating fact. Prosecution had not been able to attribute any motive to the appellant for committing the offence of murder of Mintu. Though PW-12 had stated that Mintu had not paid his employees, namely, Debaru and the appellant, their salaries for few months, none of the witnesses have deposed to that effect. Therefore, such evidence of PW-12 has no basis whatsoever. It is also established on the evidence on record that the appellant had not contrived a situation leading to the deceased going to forest along with the appellant in furtherance of a common intention shared by the appellant and Debaru to commit murder of Mintu. Debaru, according to own version of the prosecution, was not available during the whole day of the incident and he is still absconding. Debaru was also made an accused and was charge-sheeted. Recovery of blood stained ‘Gamosa’ is not conclusive of commission of murder by the appellant as during the process of concealment of the body, ‘Gamosa’ might have come in contact with blood. Recovery of the ‘dao’, which was used in the offence, is doubtful having regard to the statement of PW-2 in the first place that the appellant was not having the ‘dao’ with him on his return back. The appellant had disclosed where Debaru was going to after committing the crime. Materials on record do not indicate that serious attempt was made by the prosecution to apprehend him. 35. It is apparent that the appellant had taken recourse to falsehood in telling PW-2 and others that he had escorted the deceased half way to his residence, although he, admittedly, had concealed the dead body of Mintu, in the meantime. From the materials on record, it is clear that the appellant did not set out with Debaru with a motive to commit murder of Mintu. In the aforesaid backdrop, the portrayal made by the appellant that they met Debaru in the forest and on being provoked by Mintu, Debaru had snatched the ‘dao’ belonging to the appellant and had given 2(two) successive blows in the neck of Mintu cannot be altogether brushed aside. There is no doubt suspicion on the appellant but suspicion howsoever great cannot take the place of proof. 36. There is no doubt suspicion on the appellant but suspicion howsoever great cannot take the place of proof. 36. On a totality of the circumstances, as demonstrated by the evidence on record, we are of the opinion that the prosecution has failed to prove the guilt of the accused under Section 302 IPC beyond reasonable doubt and accordingly, the appellant is acquitted of the charge under Section 302 IPC. However, the prosecution has proved beyond reasonable doubt the offence of Section 201 IPC against the appellant and accordingly, we uphold the conviction and sentence of the appellant under Section 201 IPC. As the appellant has already undergone 3(three) years of conviction as imposed by the learned trial Court, he shall be released forthwith. Accordingly, the appeal is partly allowed, as indicated above. 37. Registry will send down the case records.