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2016 DIGILAW 622 (GAU)

Ajoy Munda @ Dabang v. State of Assam

2016-07-14

AJIT SINGH, SUMAN SHYAM

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JUDGMENT : Ajit Singh, J. The sole appellant Ajoy Munda @ Dabang has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1,000/- with default stipulation for committing the murder of Lambu Mura. 2. Prosecution story in short is that on 21.4.2013 at about 7 p.m. while Sansari Mura (P.W.6) was preparing food in her house, she heard the cry of her husband Lambu from outside that appellant had assaulted him with a dao. Sansari came out and saw Lambu falling down. She, however, did not see the appellant. On hearing the commotion, other residents of the locality, namely, Ramesh Mura (P.W.1), Pulam Mura (P.W.2), Ranjit Mura (P.W.3) and Sarat @ Gutura Mura (P.W.8) also gathered at the place of occurrence to whom Sansari disclosed that appellant had cut Lambu. 3. Ejahar (Exhibit-2) of the incident was lodged by Bote Munda at Police Out Post Talap which was forwarded to Police Station Doomdooma where it was registered as First Information Report. Uttam Das (P.W.9) was In Charge of the Talap Out Post. He went to the place of occurrence and since it was dark there, he brought the body of Lambu to the Out Post. On the next day, he prepared Inquest Report (Exhibit-3). Thereafter, he sent the body for post mortem examination. The appellant reportedly surrendered on the next day whereafter, he was taken into custody. Uttam Das also seized the dao vide Seizure Memo (Exhibit-5). Uttam Das even forwarded the appellant to the court with a prayer to record his confessional statement but he did not make any confession before the Magistrate. 4. Dr. Amar Prasad (PW 4) conducted the post mortem on the dead body of Lambu. According to the post mortem examination report (Exhibit-1) prepared by him, two deep cut wounds were found on the chest which were ante mortem in nature and caused by sharp cutting weapon. Dr. Amar Prasad has opined that cause of death of Lambu was due to fatal cut injuries on the chest. 5. During the trial, appellant pleaded not guilty at the stage of framing of charges. He, however, while being examined as an accused under Section 313 of the Code of Criminal Procedure, admitted that he had cut Lambu because otherwise Lambu would have cut him. 6. 5. During the trial, appellant pleaded not guilty at the stage of framing of charges. He, however, while being examined as an accused under Section 313 of the Code of Criminal Procedure, admitted that he had cut Lambu because otherwise Lambu would have cut him. 6. The Trial Court essentially relying upon the evidence of Sansari Mura and her disclosure to witnesses Ramesh Mura, Pulam Mura, Ranjit Mura and Sarat @ Gutura Mura about the incident, convicted and sentenced the appellant as aforesaid. The Trial Court also relied upon the admission of appellant under Section 313 of Code of Criminal Procedure about his killing Lambu. 7. Witnesses Ramesh Mura, Pulam Mura, Ranjit Mura and Sarat @ Gutura Mura have testified that they had reached the place of occurrence on hearing commotion where they found Sansari holding the dead body of Lambu. And on their asking, Sansari disclosed that appellant had hacked Lambu. None of these witnesses claim to have seen the incident. It is in this fact situation, we shall examine the evidence of Sansari whether her disclosure that appellant had hacked Lambu can be relied upon. Sansari in her statement recorded under Section 161 of the Code of Criminal Procedure specifically stated to have seen the appellant cutting Lambu. Meaning thereby, she claimed herself to be an eye witness of the incident having actually seen the appellant cutting Lambu. But in the court, she did not say that she saw the appellant committing the crime. On the contrary, Sansari testified that she did not see the appellant at all or, for that matter, any person at the place of occurrence because it was dark. It is, thus, clear that Sansari did not herself witness the incident. Sansari though deposed that while preparing meal in the house she heard the cry of Lambu that appellant had cut him, this fact was not mentioned by her in the earlier statement recorded under Section 161 of the Code of Criminal Procedure. Uttam Das has also admitted in his evidence that Sansari did not state before him about hearing of such cry of Lambu. Therefore, this evidence of Sansari that she heard the cry of Lambu about being cut by the appellant with a dao becomes wholly unreliable. In the result, she could not have also truthfully disclosed to the above mentioned witnesses that appellant had hacked Lambu with a dao. 8. Therefore, this evidence of Sansari that she heard the cry of Lambu about being cut by the appellant with a dao becomes wholly unreliable. In the result, she could not have also truthfully disclosed to the above mentioned witnesses that appellant had hacked Lambu with a dao. 8. Likewise the evidence of recovery of dao is also wholly unreliable. Uttam Das has testified that he had recovered dao from the house of one Prafulla Kuti pursuant to the memorandum statement of the appellant. But the Seizure Memo (Exhibit-P/5) clearly reveals that it was seized from the possession of appellant. No seizure witness has also been examined by the prosecution to prove the seizure of dao from the possession of appellant. 9. For these reasons, we are convinced that prosecution has grossly failed to prove by adducing reliable and cogent evidence that appellant committed the murder of Lambu with a dao. 10. The question now before us is whether solely on the basis of admission of appellant while being examined as an accused under Section 313 of the Code of Criminal Procedure that he had killed Lambu, the appellant can be convicted. Recently the Supreme Court in Raj Kumar Singh –vs- State of Rajasthan, (2013) 5 SCC 722 , after referring to its earlier decisions has summarised the legal position on the issue to the effect of statement/ admission recorded under Section 313 of the Code of Criminal Procedure. Para 41 of the judgment reads as under: “41. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution’s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under 11. In the case at hand, as mentioned above, the appellant did not plead guilty at the time of framing of charge. He also refused to record his confession before the Magistrate to whom he was sent by Investigating Officer Uttam Das. We, therefore, fail to understand what made the appellant to admit guilt at the late stage of trial while he was being examined as an accused. And but for admission of appellant that he killed Lambu at the time of recording his statement under Section 313 of the Code of Criminal Procedure, there is no iota of evidence against him. 12. In the case of Raj Kumar Singh (supra), Supreme Court has clearly held that the statement of accused is not a substantive piece of evidence and it can be used only for appreciating the evidence led by prosecution, though it cannot be a substitute for the evidence of the prosecution. The Supreme Court has also held that in case prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis for his conviction. The Supreme Court has also held that in case prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis for his conviction. The appellant, therefore, cannot be convicted solely on the basis of his admission while being examined as an accused under Section 313 of the Code of Criminal Procedure. 13. Consequently, we set aside the conviction and sentence of the appellant. He is in jail. He therefore, be released immediately, if not wanted in any other case. 14. The appeal is allowed.