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2016 DIGILAW 627 (GAU)

Kanda Majhi v. State of Assam

2016-07-14

A.K.GOSWAMI, INDIRA SHAH

body2016
JUDGMENT AND ORDER : Indira Shah, J. All these three appeals have arisen out of the Judgment and Order dated 18.10.2012, passed by the Additional Sessions Judge, Dibrugarh, in Sessions Case No. 143/2011. Therefore, all these three appeals have been taken together analogously and we propose to dispose of the appeals by a common Judgment. 2. The Judgment and Order dated 18.10.2012 passed by the Additional Sessions Judge (FTC), Dibrugarh, in Sessions Case No. 143/2011 convicting appellants under Section 302/201/34 IPC and sentencing them thereby to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 2000/- (Rupees two thousand) only, in default of payment of fine, R.I. for one (1) year each for their conviction under Section 302 IPC, and to undergo R.I. for three(3) years with fine of Rs.500/- (Rupees five hundred) only, in default of payment of fine, further R.I. for five (5) months for the offence under Section 201 read with Section 34 IPC has been challenged in these appeals. 3. Heard Mr. R.K. Dutta, Mr. U.J. Saikia and Mr. R. De, learned Amicus Curiae appearing for the appellants in Crl. Appeal (J) No. 148/2012, Crl. Appeal (J) No. 149/2012 and Crl. Appeal (J) No. 149/2012 respectively. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor, Assam appearing for the State. 4. The prosecution story in brief is that on 14.04.2011 at around 7-30 P.M. Dinesh Sonowal (deceased) had gone out of his house and since then he remained untraced. An FIR dated 26.04.2011 was lodged by Sri Dharmakanta Sonowal, uncle of Dinesh Sonowal (since deceased) wherein it was alleged that the residents of Natun Basti of Kathalguri informed the informant that on 14.04.2011 deceased Dinesh Sonowal had a quarrel with Kanda Majhi, Bipul Karmakar and Raju Kharia. The informant suspected that the aforesaid three persons had forcefully killed his nephew Dinesh Sonowal and concealed his dead body. 5. On the basis of the FIR, Duliajan Police Station Case No. 85/2011 under Section 302/201/34 IPC was registered. During investigation, the accused persons named in the FIR were arrested. They led the police to the place where Dinesh Sonowal was killed. The dead body of Dinesh Sonowal was recovered at the instance of the accused persons. The informant identified the dead body and inquest on the dead body was held. During investigation, the accused persons named in the FIR were arrested. They led the police to the place where Dinesh Sonowal was killed. The dead body of Dinesh Sonowal was recovered at the instance of the accused persons. The informant identified the dead body and inquest on the dead body was held. The spade, used for excavation of earth by the accused persons to conceal the dead body, was also recovered from the house of one of the accused, namely, Raju Kheria. Postmortem examination on the dead body was held at Assam Medical College Hospital, Dibrugah. 6. On completion of the investigation, police submitted charge sheet under Section 302/201/34 IPC against all the FIR named accused persons. The case being exclusively triable by the court of Sessions, it was committed by the trial court to the court of Sessions and then it was transferred to the court of Addl. Sessions Judge at Dibrugarh. During the trial, the accused persons pleaded not guilty to the charges framed against them under Section 302/201/34 IPC and claimed to be tried. 7. All together sixteen (16) witnesses were examined by the prosecution. Thereafter statement of accused persons under Section 313 CrPC were recorded. While the accused Raju Kharia and Kanda Majhi denied all the allegations levelled against them and pleaded innocence, the accused Bipul Karmakar admitted that he had committed the offence. He has stated that there was a land dispute between him and the deceased leading to an altercation with the deceased. He also stated that it was the deceased who assaulted him by means of a bamboo stick during the altercation and then he inflicted five strokes with the bamboo lathi on the body of the deceased resulting his death. He thereafter dragged the dead body to a jungle and buried it in a pit, covering with branches and leaves of the tree. According to him, the co-accused were not involved in the whole incident. 8. It is submitted by the learned Amicus Curiae appearing on behalf of the accused appellant Raju Kharia and Kanda Majhi that there was no direct evidence of their involvement in the offence. The conviction of the appellants was based on circumstantial evidence i.e. leading to discovery of dead body and for the only circumstance there cannot be any conviction. 8. It is submitted by the learned Amicus Curiae appearing on behalf of the accused appellant Raju Kharia and Kanda Majhi that there was no direct evidence of their involvement in the offence. The conviction of the appellants was based on circumstantial evidence i.e. leading to discovery of dead body and for the only circumstance there cannot be any conviction. The conviction cannot also be maintained since the co-accused who admitted his guilt in his statement under Section 313 CrPC, categorically stated that the accused Raju Kharia and Kandu Majhi were not involved at all in connection of the offence. 9. Learned Amicus Curiae appearing on behalf Bipul Karmakar has submitted that although the accused Bipul Karmakar in his statement under Section 313 CrPC admitted that he committed the offence, his statement that he caused death of the deceased by inflicting blows by means of a lathi cannot be believed as the postmortem report reveals that the deceased sustained injuries caused to him by sharp cutting weapon. Moreover, no conviction can be maintained only on the basis of admission of guilt by the accused under Section 313 CrPC. It is further submitted on behalf of the appellants that so called confession of the appellants, in police custody, is not admissible in law. Moreover, the statement of the appellants, before recovery of the dead body and the wearing apparels of the deceased, were not recorded in terms of Section 27 of the Evidence Act. The learned Amicus Curiae submits that the prosecution case is based only on circumstantial evidence and the circumstances available in the instant case hardly makes a chain of evidence leading to the guilt of the appellants. 10. Ms. S. Jahan, learned Addl. Public Prosecutor, Assam on the other hand submits that although there is no direct evidence, there are enough circumstantial evidence to connect the accused with crime. 11. A brief discussion of the evidence adduced before the trial court may be relevant here. PW 1 Sri Duna Kanta Sonowal is the informant. He deposed that on the day of 'Goru Bihu" Dinesh Sonowal (deceased) went out of his house at about 7 P.M. after enjoying bihu feast. Since then, he did not return. PW 1 heard that the accused had a quarrel with Dinesh, then he lodged the FIR. Police arrested the accused persons. The accused persons confessed that they had killed Dinesh Sonowal. Since then, he did not return. PW 1 heard that the accused had a quarrel with Dinesh, then he lodged the FIR. Police arrested the accused persons. The accused persons confessed that they had killed Dinesh Sonowal. The dead body of Dinesh was exhumed from the place shown by the accused persons. One hoe was seized from the house of the accused. The accused confessed that they had used the hoe for burying the dead body. It was seized vide Ext. 2. Inquest on the dead body was held and police seized the wearing apparels of the deceased vide Ext. 4, in presence of PW 1. In cross examination, he stated that the hoe was seized from the house of accused Raju Kharia. 12. PW 2 Sri Dulen Sonowal was present when the police recovered the dead body. He stated that the accused persons led to the place wherefrom the dead body was exhumed. He also witnessed the seizure of clothes of the deceased. In the cross examination, he stated that he learnt from the villagers that the accused had killed Dinesh Sonowal and buried his dead body. 13. PW 3, Sri Bhaben Hazarika also deposed in the same line. PW 4, Sri Dibakar Saikia and PW 5, Sri Padmeswar Sonowal were present when his dead body was exhumed. 14. PW 6, Sri Kamal Sonowal in his evidence deposed that the accused confessed that they had killed Dishesh Sonowal in an open space, about half a kilometre away from the jungle. However, in his cross examination, he admitted that the accused made confession in presence of police. 15. PW 7, Sri Ritu Sonowal stated that police apprehended the accused persons and the dead body of the deceased was exhumed as shown by the accused. 16. PW 8, Sri Anil Tanti deposed that a commotion took place at the cross road near his house. However, he did not come out during the night. On the following day, he saw a "X" mark indicating that something being dragged. He informed the police that a quarrel had taken place between the accused and the deceased Dinesh Sonowal. He learnt that the accused had killed Dinesh. However, he stated that he did not see the occurrence. 17. PW 9, Sri Bijoy Praja deposed that when police apprehended the accused persons, they confessed that they had killed Dinesh Sonowal. He informed the police that a quarrel had taken place between the accused and the deceased Dinesh Sonowal. He learnt that the accused had killed Dinesh. However, he stated that he did not see the occurrence. 17. PW 9, Sri Bijoy Praja deposed that when police apprehended the accused persons, they confessed that they had killed Dinesh Sonowal. They led the police and the dead body was recovered at their instance. 18. PW 10, Sri Jitul Dutta deposed that the local people informed him that the three accused persons had killed Dinesh Sonowal and kept the dead body buried by digging a pit. The accused confessed in front of police and before them. However, in cross examination, PW 10 stated that what he had stated he learnt from the villagers and police. 19. PW 11, Sri Pranab Kumar Borah, held inquest on the dead body in presence of the witnesses. 20. PW 12, Sri Pabitra Barthakur deposed that police brought all the three accused persons under arrest. One of the three accused persons brought out the dead body by digging the pit. The three accused confessed that they had killed Dinesh Sonowal and buried the dead body there. Similar is the statements of PW 13, Sri Brojen Gogioi and PW 14, Sri Pranabjit Borah. 21. PW 16, Dr. Hubha Jyoti Deka held the post mortem examination on the dead body of the deceased and his findings are as follows : "External Appearance: One male dead body saporified at places smeared with mud sand particles, foul smelling wearing while half gangee peeling of skin at places, muscles, skin of face absent, eye socket empty, bone of skull exposed. Rigormortis passed off. Hands tied at the back with plastic rope and both the lower legs tied at the ankle with plastic rope. Muscle skin of the neck are partly missing. Injury: 1. Both bone fracture over right lower leg, closely fracture on dissection, muscle bones black in colour present. 2. Incised wound over left shoulder muscle deep 6 cm x 3 cm clean cut margin. 3. Incised wound on the neck clean cut margin of the neck below thyroid cartilage adjacent area are contused. Cranium and Spinal canal: Scalp: Missing area left terpal at parietal region, pation all right on occipital present contrast. Skull-left fronto parietal bone depressed fractured, confused bone of tempero at a portion paiek bone missing. vertebra-healthy. 3. Incised wound on the neck clean cut margin of the neck below thyroid cartilage adjacent area are contused. Cranium and Spinal canal: Scalp: Missing area left terpal at parietal region, pation all right on occipital present contrast. Skull-left fronto parietal bone depressed fractured, confused bone of tempero at a portion paiek bone missing. vertebra-healthy. Membrane - healthy. Brain-healthy. Spinal cord -not dissected." In the opinion of the doctor, the death was due to haemorrhage, shock, consequent to injuries sustained as described. All injuries are ante mortem and injury No. 2 and 3 are caused by sharp cutting weapon. 22. PW 15, Md. Abedur Rahman is the Investigating Officer. On receipt of the FIR, he arrested the accused persons, named in the FIR. According to him the accused persons confessed before him that they had killed Dinesh Sonowal by a lathi and buried the dead body in Dihing Forest Reserve. The accused persons led the police and the Circle Officer to the place where they had killed the deceased. PW 15 drew sketch map of the site vide Exhibit 6. Then the accused persons led police to the place where they buried the dead body of the deceased. The distance between the place where the deceased was killed and the place where the dead body was concealed is about 1 Km away. The sweeper who accompanied them excavated the place and dead body partially decomposed was recovered. The informant identified the body. The Circle Officer held inquest on the dead body. The dead body was in naked condition. On being asked the accused persons stated that they removed the wearing clothes from the dead body. The clothes consist of under pant and long pant. The wearing apparels of the deceased were recovered at the instance of the accused persons and they were seized. A spade was also seized from the house of accused Raju Kharia. After the post mortem examination on the dead body and on completion of investigation, PW 15 submitted the charge sheet. 23. The aforesaid evidence only leads to the conclusion that the dead body of the deceased, wearing clothes of the deceased and a hoe used for digging of the earth to conceal the dead body were recovered at the instance of the accused persons, in terms of Section 27 of the Evidence Act. 23. The aforesaid evidence only leads to the conclusion that the dead body of the deceased, wearing clothes of the deceased and a hoe used for digging of the earth to conceal the dead body were recovered at the instance of the accused persons, in terms of Section 27 of the Evidence Act. Thus, it can be concluded that the accused persons had the knowledge where the dead body, wearing apparels of the deceased and a hoe were kept concealed. The alleged confessional statements of the accused persons to the effect that they had killed the deceased are not admissible as the confession was made before the police. There is no other material except leading police to the discovery of the dead body and other articles. 24. Thus, there is no denial that the deceased was killed and the offence of murder had been committed. The essential ingredients of the offence under 201 IPC consists of- (i) that an offence has been committed; (ii) that the accused knew or had reason to believe the commission of such offence; (iii) that with such knowledge or belief, he (a) caused any evidence of the commission of that offence to disappear or (b) gave any information relating to that offence, which he, then, knew or believed to be false; (iv) that he did so with intention of screening from the legal punishment. 25. Here in this case, the accused knew that the offence of murder has been committed, and the dead body was concealed. However, there is derth of evidence to show that the accused caused death of the deceased but there is an unimpeachable circumstance to show that the accused persons caused disappearance of evidence of murder. 26. It is a settled law that though the conviction can be passed solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence as laid down in a catena of cases by the Apex Court. Reference may be made to the decisions in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , State of Rajasthan v. Rajaram, (2003) 8 SCC 180 , State of Haryana v. Jagbir Singh & Anr., (2003) 11 SCC 180. 27. The accused persons led the police and the dead body was recovered at their instance. Reference may be made to the decisions in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , State of Rajasthan v. Rajaram, (2003) 8 SCC 180 , State of Haryana v. Jagbir Singh & Anr., (2003) 11 SCC 180. 27. The accused persons led the police and the dead body was recovered at their instance. Accused Bipul Karmakar in his statement under Section 313 CrPC admitted his involvement in the crime but denied the involvement of accused Raju Kharia and Kanda Majhi. The accused Raju Kharia and Kanda Majhi denied all the allegations levelled against them. The accused Bipul Karmakar took the plea of right of private defence and stated that he inflicted five strokes with lathi on the deceased, whereas the post mortem report states that the deceased sustained the fatal wound caused by a sharp weapon. 28. The object of examinations of an accused under Section 313 Cr.P.C. has been dealt with in the case of Inspector of Customs, Akhnoor J&K v. Yash Pal & Another (2009) 4 SCC 769 and has been observed in paragraphs 18, 19 and 20 as under :- "18. What is the object of examination of an accused under Section 313 of the Code ? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab ( AIR 1963 SC 612 ) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focused on the ultimate test in determining whether the provision has been fairly complied with. He observed thus: "The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity." 19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. 20. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity." 19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. 20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. Section 313 Cr.P.C. reads as follows :- "Power to examine the accused-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court - (a) May at any stage, without previously warning the accused put such questions to him as the Court considers necessary : (b) Shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case ; Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. {(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this Section.}" Sub Clause 3 Section 313 CrPC thus clearly spells that the accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. Even in case of conviction on the basis of extra-judicial confession the confession must be clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime. In the case of Mohd. Azad @ Samin v. State of West Bengal ( AIR 2009 SC 1307 ) rules regarding circumstantial evidence was discussed and observed in paragraph 13 of the judgment as under :- "13. Sir Alfred wills in his admirable book "Wills Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum ; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability : (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits ; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." 29. From the aforesaid circumstances, a conclusion of guilt of all the accused persons is not fully established to the extent that the accused persons may be the authors of the offence of murder. In the case of circumstantial evidence, the circumstances concerned 'must' be not 'should 'or 'may be' has to be established. In the instant case, the circumstances from which the conclusion of guilt is to be drawn and the circumstances consistent only with the hypothesis of the guilt of the accused persons in the commission of murder has not been established. 30. Now the question arises as to whether the mere fact that the accused persons led the police and pointed out a place where the dead body of the deceased was buried is sufficient for their conviction under Section 201 IPC. The dead body, in this case, was buried in Dhing Forest Reserve. Wearing clothes of the deceased were recovered at the instance of the accused persons and a spade was also seized from the house of one of the accused. It is in evidence that the accused persons took the police directly to the place where from dead body was exhumed and also to the place where from wearing apparels of the deceased were recovered. In the circumstances, if the accused themselves had not buried the body or taken part in disposal of the body, they would not have known that the body was buried inside a Forest Reserve. Therefore, in the circumstances of these cases, a reasonable hypothesis is that they had knowledge of the commission of offence and the disposal of the dead body and other incriminating articles either the offence of murder was committed by them or they had knowledge of the commission of offence by somebody and they concealed the evidence to save themselves or any other. The conviction of the accused persons, thus, under Section 201 IPC cannot be interfered. 31. In view of the aforesaid discussions, we are of the considered opinion that conviction of the accused persons under Section 302 IPC is liable to be set aside and accordingly, it is set aside. However, the accused persons are guilty of offence under Section 201 read with Section 34 IPC. 31. In view of the aforesaid discussions, we are of the considered opinion that conviction of the accused persons under Section 302 IPC is liable to be set aside and accordingly, it is set aside. However, the accused persons are guilty of offence under Section 201 read with Section 34 IPC. Therefore, the sentence of rigorous imprisonment for 3 years under Section 201 IPC with fine of Rs.500/- in default of payment of fine, further R.I. for 5 months passed by the learned Trial Court is affirmed. 32. These criminal appeals are accordingly partly allowed and disposed of. 33. Return the LCR along with a copy of this Order.