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2017 DIGILAW 1558 (GAU)

Sankar Patra v. State of Assam

2017-12-21

HITESH KUMAR SARMA, HRISHIKESH ROY

body2017
JUDGMENT : Hitesh Kumar Sarma, J. 1. This Criminal Appeal (J) 134/2014 has been preferred by appellant Sri Sankar Patra against the judgment, dated 12.08.2014, passed by learned Additional Sessions Judge, (FTC), Cachar, Silchar, in Sessions Case No. 226/2010 convicting the appellant for the offences under Section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and a fine of Rs. 5,000/-, and in default, to suffer further simple imprisonment for three months and further convicting the appellant for the offence under Section 201 IPC and sentencing him to undergo rigorous imprisonment for 1 year and a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for 1 month. Heard Mr. B Baruah, learned Amicus Curiae, for the appellant and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the State respondent. 2. The facts preceding the appeal are as follows: 3. On 05.08.2006, one Sri Ganesh Patra, lodged a written FIR with the In-charge, Ghungoor Police Chit Post alleging that on 28.06.2006, the appellant had called his brother, Babul Patra, for cutting bamboos. Accordingly, Babul Patra, the deceased, accompanied the appellant but thereafter he did not return. The informant, then, made vigorous searches but could not find his brother. The matter was then brought to the notice of VDP. The VDP advised the informant to approach the Police. While the Ghungoor Police was conducting investigation as to the whereabouts of Babul Patra, the appellant confessed before the villagers that he had killed Babul Patra and buried his body. This FIR led to the Silchar P.S Case No. 1203/2006 under Sections 302/201 IPC. 4. It may be pointed out at this juncture that prior to the FIR dated 05.08.2006, the informant Sri Ganesh Patra had lodged another FIR on 06.07.2006, wherein he had alleged that his brother Babul Patra has been missing since 24.06.2006. On this information, Silchar P.S Case No. 1007/2006, under Section 344/506 IPC, was registered. It was during the investigation of Silchar P.S Case No. 1007/2006, the other FIR, relating to Silchar P.S Case No. 1203/2006 under Section 302/201 IPC, was lodged. Both the FERs, as is understood from the records, have been amalgamated. 5. On completion of the investigation relating to Silchar P.S Case No. 1203/2006 under Section 302/201 IPC, a charge-sheet was laid against the appellant for the offences under Section 302/201 of IPC. 6. Both the FERs, as is understood from the records, have been amalgamated. 5. On completion of the investigation relating to Silchar P.S Case No. 1203/2006 under Section 302/201 IPC, a charge-sheet was laid against the appellant for the offences under Section 302/201 of IPC. 6. The offences being triable exclusively by the Court of Session, the case was committed to the Court of Session at Cachar, Silchar. After hearing both sides, the learned Sessions Judge, Cachar, Silchar, framed charges against the appellant for the offences under Section 302/201 of IPC. The charge was explained to the appellant to which he pleaded not guilty and claimed trial. The case was later transferred to the Court of Additional Sessions Judge, (FTC), Cachar, Silchar. 7. In the course of trial, prosecution examined eight (8) witnesses including the Medical Officer and the Investigating Police Officer. At the closure of prosecution evidence, as required under Section 313 of Cr.PC, all the incriminating materials were put to the appellant. The appellant denied the accusation levelled against him and also declined to adduce any evidence. After hearing arguments tendered by the Prosecution as well as the defence, the learned Additional Sessions Judge convicted and sentenced the appellant as indicated above. 8. We have examined the trial Court's record including the evidence laid by the prosecution as well as the judgment put to challenge in this appeal. 9. The learned trial Court has based its findings on three circumstances viz; Extra judicial confession made by the appellant. Statement made by the appellant before the police which led to recovery of dead body of deceased lying buried under the ground. Last seen together theory 10. We have to see whether prosecution has laid foundation facts against each of the aforesaid circumstances so as to the bring home the guilt of the appellant. Extra judicial Confession: - 11. PW 1, Smt. Ahalya Bania deposed that she is a VDP Advisor and had been hearing whispers in the locality about the death of Babul Patra. As Advisor of VDP she enquired with the appellant whereupon the appellant admitted that he committed the murder of Babul Patra and also concealed the body buried in a paddy filed. As deposed by PW 1, the appellant showed to her the place, where he had buried the dead body. Thereafter, the appellant was handed over to the police station. 12. As deposed by PW 1, the appellant showed to her the place, where he had buried the dead body. Thereafter, the appellant was handed over to the police station. 12. PW 3 Chandan Bania, deposed that as reported by Ganesh Patra, the brother of deceased, the deceased along with the appellant had gone to cut bamboo but thereafter deceased Babul Patra was found trace-less. PW 3 further deposed that one day the appellant confessed before him that he had killed Babul Patra. The appellant was thereafter taken to police station where he disclosed before the police of having killed Babul Patra. The appellant then led the police party to the place where had buried the dead body. 13. In the case of Ram Singh v. State of U.P. reported in AIR 1967 SC 152 , the Hon'ble Supreme Court held that extra-judicial confessions are not usually considered with favour but that does not mean that, such a confession coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement, should be disbelieved. 14. Again, in the case of Wakil Nayak v. State of Bihar, reported in (1971) 3 SCC 778 , the Hon'ble Supreme Court held that before the court acts on extra-judicial confession the circumstances under which the confession is made, the manner in which it is made, the persons to whom it is made will be considered along with two rules of caution. First, whether the evidence of confession is reliable, and secondly, whether it finds corroboration. 15. In the present case, there are no materials on record to show that PW 1, Smt. Ahalya Bania, and PW 3, Chandan Bania had any ill will towards the appellant. Hence, the fact that these witnesses testified about the appellant admitting the crime before them, cannot be brushed aside. There is also no evidence that PW 1 or PW 3 had applied any pressure upon the appellant. However, before acting upon such extra judicial confession the reliability of such a confession also needs to be examined. 16. We notice certain variation in the testimony of PW 1 and PW 3 in the chronology of events as deposed. According to PW 1, the appellant having confessed before her of killing Babul Ratra, took her to the place where the dead body was buried. 16. We notice certain variation in the testimony of PW 1 and PW 3 in the chronology of events as deposed. According to PW 1, the appellant having confessed before her of killing Babul Ratra, took her to the place where the dead body was buried. It was thereafter that PW 1 along with VDP personnel took the appellant to Police Station. On the other hand, PW 3 deposed that appellant had confessed before them about killing Babul Patra and requested PW 3 and others to take him to Police Station. PW 3 and others thereafter, took the appellant to the police station where he disclosed about the killing. 17. The inconsistency in the evidence of PW 1 and PW 3 is material in nature because if evidence as to extrajudicial confession were to be acted upon there must be coherence in the statement of the witnesses deposing about the extrajudicial confession. The evidence of PW 1 and PW 3 are also silent as to under what circumstances and at which place, the appellant made the statement to them. 18. In the case of State of U.P. v. M.K. Anthony reported in (1985) 1 SCC 505 , the Hon'ble Supreme Court held that there is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra-judicial confession as a weak piece of evidence. 19. It was further held in M.K. Anthony (supra), that if the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of conviction. In such a situation, to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. In such a situation, to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon. 20. In the present case, the deposition of PW 1 and PW 3 differ on a very material aspect as to whether soon after making the confession, appellant was taken to police station where he made the disclosure statement or the appellant took PW 1 and PW 3 to the place where the dead body was buried. This inconsistency coupled with the absence of any explanation of the circumstances under which the appellant made the statement to PW 1 and PW 3 does cast a doubt whether the appellant in fact made any such confession to the PW 1 and PW 3. Leading to Discovery: - 21. In the case of Pulukuri Kottayya v. King-Emperor reported in AIR 1947 PC 67 , the Privy Council held that Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. Normally, the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. 22. Normally, the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. 22. Thus, the very essence of information leading to the discovery of certain fact is that such place or information must not be known to the police before the discovery. 23. In this regard the deposition of PW 7, Seba Singh, the Investigating Officer of Ghungoor Police Out Post, reveals that he received a message from O.C, Sadar Police Station that appellant had surrendered before the Officer-in-Charge of Silchar Sadar Police Station. PW 7, accordingly, went to Silchar Police Station and took the appellant in his custody and on the next day the appellant confessed to have killed Babul Patra and that he had concealed the body near Sorpur Bill. 24. The evidence of PW 7, Seba Singh, reveals that it was only when appellant confessed before him that he came to know about the place where the dead body was buried. However, going by the evidence of PW 1, Smt. Ahalya Bania, the appellant had already shown the burial place to her before she along with VDP personnel took him to police station. Thus, the place of burial was known to one of the prosecution witnesses who claims to have taken the appellant to the police station. It is very unlikely that PW 1, Smt. Ahalya Bania, having known the place where the dead body was buried, would not disclose the fact to Police more so, when she is a VDP Advisor. 25. Thus, it is seen that statement of the appellant leading to discovery of the fact that a dead body is buried at a particular place, cannot be utilized as incriminating circumstances against the appellant in view of the distinct probability that place of burial was already known to police. Last Seen Together: - 26. PW 2, Ganesh Patra, the brother of the deceased and informant of this case, deposed in his evidence that on the day of occurrence appellant had called his brother Babul Patra, the deceased, for cutting bamboo in his house. Accordingly, the deceased accompanied the appellant but did not return till the evening. Search was made but deceased could not be traced out. Accordingly, the deceased accompanied the appellant but did not return till the evening. Search was made but deceased could not be traced out. PW 2 deposed that he informed the VDP Advisor, Smt. Ahalya Bania, PW 1 and on their advice informed the police. Later, as deposed to by PW 2, the appellant confessed that he had killed Babul Patra. 27. It may be mentioned that apart from PW 2, no other witness has stated that he had seen the appellant and the deceased together. 28. Now, the evidence of PW 2 that appellant had called the deceased for cutting bamboo in his house is a material fact. When read in contrast with the first FIR, Ext 4, lodged on 06.07.2006, the PW 2 informed the In-charge of Ghungoor Police Out Post that his younger brother Babul Patra, the deceased, went out of his house on 24.06.2006 for cutting bamboo which is his livelihood but has not returned since then. PW 2 also informed that the appellant had threatened to cut his brother, the deceased. 29. The FIR, Ext 4, registered for the offences under Section 344/506 IPC, was lodged after about 11 days since the deceased went missing. There is no mention in the Ext 4 that appellant had called the deceased for cutting the bamboo. Strangely, in the FIR, Ext 6, lodged on 05.08.2006, the informant mentioned that on 28.06.2006, appellant called his brother, the deceased, for cutting bamboo and since then his brother Babul Patra was missing. 30. Firstly, in Ext 4, the deceased reportedly went missing on 24.06.2006, whereas in the FIR, Ext 6, the deceased reportedly went missing on 28.6.2006, this inconsistency cannot be justified in any manner. 31. Secondly, in the FIR, Ext 4, there is no reference to the fact that appellant had called the deceased for cutting bamboo whereas in the FIR Ext 6, PW 2 makes a mention of the fact that appellant had called his brother, the deceased, for cutting bamboo. 32. These inconsistencies are very material in nature and it would not be safe to rely on the evidence of PW 2 that deceased was last seen together with the appellant. 33. 32. These inconsistencies are very material in nature and it would not be safe to rely on the evidence of PW 2 that deceased was last seen together with the appellant. 33. As held in the case of Jaharlal Das v. State of Orissa, reported in (1991) 3 SCC 27 , that in cases dependant largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion howsoever strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. 34. In view of the proceeding discussions, held herein before, and also on perusal of entire evidence on record, there appears no evidence, direct or circumstantial, which could link the appellant with the death of Babul Patra. Hence, the impugned judgment calls for interference. 35. The conviction of the appellant for the offences under Section 302/201 IPC and the corresponding sentences awarded are hereby set aside and the appellant is acquitted of the charges under Section 302/201 IPC and set at liberty forthwith, if not wanted in any other case. 36. The appeal is allowed. The appellant be released forthwith. 37. Send down the LCR with a copy of this judgment. This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs. 7000/- be paid to the learned Amicus Curiae as honorarium for the assistance rendered by him.