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2017 DIGILAW 1560 (GAU)

Suren Kheria v. State of Assam

2017-12-21

HITESH KUMAR SARMA, HRISHIKESH ROY

body2017
JUDGMENT : Hitesh Kumar Sarma, J. 1. This Criminal Appeal (J) 108/2014 preferred by appellant Sri Suren Kheria @ Nigoni against the judgment, dated 12.06.2014, passed by learned Addl. Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. 153/2007 convicting the appellant for the offences under Sections 302/323 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life for the offence under Section 302 IPC with a of fine of Rs. 10,000/- and further sentencing to undergo rigorous imprisonment for one year for his conviction under Section 323 IPC. Heard Ms. S. Kanungoe, 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: An FIR was lodged by Sri Haren Mura, with the Officer in Charge, Sootea Police Station on 28.01.2007, alleging that on that day at about 4 p.m the appellant hacked his uncle Prahlad Mura multiple times with an axe as a result of which his uncle Prahlad Mura died on the spot. The informant further stated that the appellant thereafter went to the residence of Sri Kalia Khera and struck him on his leg with the axe in his hand causing grievous injuries on his person. The appellant, after causing injuries to Sri Kalia Khera fatally assaulted Sunku Khera to death with the axe in his hand. The villagers who had assembled caught the appellant and detained him. 3. On receipt of the FIR, a case under Section 447/325/302 of IPC was registered being Sootea P.S Case No. 11/2007, and after completion of the investigation, a charge-sheet was laid against the appellant for the offences under Sections 447/325/302 of IPC. 4. The offences being triable exclusively by the Court of Session, the case was committed to the Court of Session at Sonitpur, Tezpur. After hearing both sides, the learned Sessions Judge, Sonitpur, Tezpur, framed charges against the appellant for the offences under Sections 302/323 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, Sonitpur, Tezpur. 5. In the course of trial, prosecution examined twenty (20) witnesses including the Medical Officer and the Investigating Police Officer. At the closure of prosecution evidence, as required under Section 313 of CrPC, all the incriminating materials were put to the appellant. The case was later transferred to the Court of Additional Sessions Judge, Sonitpur, Tezpur. 5. In the course of trial, prosecution examined twenty (20) witnesses including the Medical Officer and the Investigating Police Officer. At the closure of prosecution evidence, as required under Section 313 of CrPC, all the incriminating materials were put to the appellant. The appellant admitted the accusation levelled against him in explicit terms and also declined to adduce any evidence in his defence. After hearing arguments tendered by the Prosecution as well as the defence, the learned Additional Sessions Judge, Sonitpur, Tezpur, convicted and sentenced the appellant as aforesaid. 6. We have examined the trial Court's record including the evidence led by the prosecution as well as the judgment put to challenge in this appeal. 7. For the sake of convenience of appreciation, the evidence tendered by some of the material witnesses are being reproduced herein below:- 8. PW 2, Sri Kalia Kheria is the one who sustained injuries on his leg. He deposed that on the fateful day he was returning from a shop and had reached the house of his daughter. Soon thereafter, the appellant came to the place with an axe in his hand and attempted to assault him. PW 2 deposed that he defended himself by raising a chair with his hand and since by then many people had gathered and the appellant left the place. 9. PW 4, Sri Pabitra Mura, deposed that on the date of occurrence he was sleeping in his house as he was suffering from fever. At that time he saw appellant coming to his residence and attempting to assault Kalia Khera. Kalia Khera resisted with the help of a chair. PW 4 also deposed that appellant also attempted to cause injuries to him but the blow did not fell on his body. By that time villagers had gathered and the appellant fled away. 10. PW 2, Sri Kalia Kheria and PW 4, Sri Pabitra Mura, though substantiate the charge under Section 323 IPC yet their evidence assumes importance because the acts pertaining to PW 2, Sri Kalia Kheria, are in the series of acts alleged to have been committed by the appellant which resulted in the loss of two lives. 10. PW 2, Sri Kalia Kheria and PW 4, Sri Pabitra Mura, though substantiate the charge under Section 323 IPC yet their evidence assumes importance because the acts pertaining to PW 2, Sri Kalia Kheria, are in the series of acts alleged to have been committed by the appellant which resulted in the loss of two lives. The evidence of PW 2, Sri Kalia Kheria, and PW 4, Pabitra Mura, establish that appellant was found in a fit of rage with an axe in his hand. 11. The other material evidence would be of PW 6, Bohagi Mura. She deposed that at about 4 p.m. she was sitting in the courtyard of her house. At that time deceased Prahlad Mura was playing with some children. The appellant came with an axe in his hand and dealt four blows on the back of the neck of Prahlad Mura by the sharp side of the axe as well as from the blunt side. PW 6 also deposed that Prahlad Mura died on the spot as a result of injuries sustained. 12. In her cross examination, she stated that as far as her knowledge goes there was no enmity between the deceased and the appellant She denied the defence suggestion that she was not present in the place of occurrence. 13. PW 7, Rajesh Kheria, is the witness who deposed to having seen the appellant killing Sunku Kheria. PW 7 deposed that appellant had first assaulted Prahlad Mura and ran towards their house. Since the villagers were chasing the appellant he came across Sunku Kheria on the road and struck him with an axe with the blunt end as a result of which Sunku Kheria died on the spot. PW 7 deposed that appellant was thereafter apprehended by the villagers. PW 7 categorically deposed that he had witnessed the appellant assaulting Sunku Kheria. 14. In cross-examination PW 7, Rajesh Kheria, denied the suggestion that Sunku Kheria sustained injury by falling from a bicycle. He also denied the suggestion about falsely implicating the appellant because of a land dispute between Sunku Kheria and the appellant. 15. The evidence adduced by the prosecution witnesses establish beyond doubt that appellant had caused the death of Suren Kheria and Prahlad Mura by an axe. He also denied the suggestion about falsely implicating the appellant because of a land dispute between Sunku Kheria and the appellant. 15. The evidence adduced by the prosecution witnesses establish beyond doubt that appellant had caused the death of Suren Kheria and Prahlad Mura by an axe. The cross examination of these witnesses only contains suggestions which does not by itself, shake the credibility of prosecution witnesses particularly, PW 6 & PW 7. 16. Perusal of the lower Court records as well the impugned judgment shows that appellant had also made a judicial confession and this confession was used as a strong circumstance against the appellant while arriving at his guilt. It would be apposite to briefly re-visit the law on confession to ascertain whether the confession of the appellant could have been used as incriminating circumstance against him. 17. The Privy Council in Narayanaswami v. Emperor reported in AIR 1939 PC 47 , held that that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts, which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not by itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to have been confessed. 18. In the case of the Shankaria v. State of Rajasthan, reported in (1978) 3 SCC 435 , the Hon'ble Supreme Court held that it is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under Section 164 Cr.PC, the court must apply the twin test: (i) Whether the confession was perfectly voluntary? (ii) If so, whether it is true and trustworthy? 19. It was further held in Shankaria (supra), that satisfaction of the first test is a sine qua non for its admissibility in evidence. (ii) If so, whether it is true and trustworthy? 19. It was further held in Shankaria (supra), that satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the court to have been caused by any inducement, threat or promise such as is mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the court must, before acting upon the confession, reach at a finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If oh such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. 20. In view of the fact that appellant herein had made a judicial confession during investigation, the confession, so recorded needs to be subjected to the twin tests as proposed by the Hon'ble Supreme Court in Shankaria (supra). 21. The Confessional form, Ext. 4, contains the confessional statement of the appellant as recorded by the PW 8, the then SDJM (S). The statement of the appellant is reproduced as follows; Deceased Sunku Kheria was my relative uncle and deceased Prahlad Mura was a resident of our village. They had ill-feelings towards me and could not tolerate me. Hence, I had enmity with them. On 28.01.2007 I drove to Patiagaon on rent and came back to my house at about 4.00 P.M. At that time deceased Sunku Kheria and Prahlad Mura were hurling abuses at me and my father using filthy language, after consuming liquor. They had ill-feelings towards me and could not tolerate me. Hence, I had enmity with them. On 28.01.2007 I drove to Patiagaon on rent and came back to my house at about 4.00 P.M. At that time deceased Sunku Kheria and Prahlad Mura were hurling abuses at me and my father using filthy language, after consuming liquor. On the spur of the moment I got enraged and taking the axe of my house went to the house of Prahlad Mura and dealt two hacks in his neck with the axe. After this incident deceased Sunku Kheria and other persons of the village chased me to assault me. When Sunku Kheria came near me on a bicycle I dealt two hacks in his head with the axe. Thereafter people of the village caught and assaulted me severely whereupon I became unconscious. Later on police brought me to Sootia P.S. 22. PW 8, Sri A.K. Baruah, the then Sub Divisional Judicial Magistrate (S), Sonitpur, Tezpur had recorded the confessional statement of the appellant made under Section 164 of Cr.PC. The substance of the evidence of PW 8 is that he had recorded the confessional statement of appellant after giving him adequate reflection time and having ascertained that appellant wanted to confess voluntarily. PW 8 also deposed that before recording the confessional statement, Ext 4, of the appellant, he had sufficiently cautioned him about the consequences of making a confession and that the appellant is not bound to make a confession. 23. We have gone through the confessional statement, Ext 4 which reveals that confessional statement of the appellant was recorded after putting several searching questions to test his voluntariness. No aspect has been pointed out to us which could show that appellant had not confessed voluntarily. 24. Now, coming to the second aspect whether the confession of the appellant was true and voluntary. If it is found that the evidence adduced by the prosecution is in tune with the confessional statement, credence is attached to the truthfulness of confessional statement. 25. In this regard, PW 15, Dr. Atul Kr. Kalita had conducted the post mortem examination on Sunku Kheria and Prahlad Mura. Ext 9, the post mortem report of deceased Sunku Kheria coupled with the evidence of Dr. Atul Kr. 25. In this regard, PW 15, Dr. Atul Kr. Kalita had conducted the post mortem examination on Sunku Kheria and Prahlad Mura. Ext 9, the post mortem report of deceased Sunku Kheria coupled with the evidence of Dr. Atul Kr. Kalita reveals that Sunku Kheria received incised injuries on right ear, cut injuries over scalp, bruise over left lower chest, bruise over left upper most area of the abdomen. PW 15 also deposed about internal injuries sustained by Sunku Kheria which, among others, include ruptured heart and ruptured spleen. He also opined that the death was due to haemorrhage and shock as a result of injuries sustained. 26. So far as injuries found on Prahlad Mura is concerned, PW 15 deposed that he had sustained incised wound over thyroid cartilage, oesophagus, and suboccipital region among others. He also opined that the death was due to haemorrhage and shock as a result of injuries sustained. The PW 15 performed the post-mortem examination of this deceased vide Ext. 10. 27. The material evidence of PW 6, Bohagi Mura, and PW 7, Rajesh Kheria, as briefly reproduced hereinbefore, establishes beyond reasonable doubt the role played by the appellant in causing the death of Sunku Kheria and Prahlad Mura because both these witnesses have given unimpeachable testimonies that it was the appellant who caused the death of Sunku Kheria and Prahlad Mura by an axe. 28. It is seen that the contents of the confessional statement of the appellant admitting to have caused the death of Sunku Kheria and Prahlad Mura by an axe are in tune with prosecution evidence. The nature of injuries found in the person of Sunku Kheria and Prahlad Mura, as revealed from the Post Mortem Reports, Ext 9 & 10, also establish that multiple injuries were caused recklessly on various part of the body of the deceased. Thus, the confession of the appellant is found to be not only voluntarily made but also contains a true account of the events. 29. Coming to the examination of the appellant, under Section 313 of Cr.PC, learned Amicus Curiae has pointed out that as against the question framed in Serial No. 6, the answer of the appellant was not recorded. Indeed, we find the submission to be correct. The question framed against Serial No. 6 pertained to the cause of death of Prahlad Mura as deposed by PW 7, Sri Rajesh Kheria. Indeed, we find the submission to be correct. The question framed against Serial No. 6 pertained to the cause of death of Prahlad Mura as deposed by PW 7, Sri Rajesh Kheria. This was an important and incriminating question and the non-recording of the answer to this query does reflect a perfunctory approach by the learned trial Judge while discharging a solemn function of recording the statement of accused. However, non-recording of answer, in the present case, cannot be considered to be fatal to the prosecution for the reason that appellant has been charged for murder of two persons Prahlad Mura and Sunku Mura and secondly as against Question No. 10, the appellant answered that he has killed Sunku Kheria and Prahlad Mura. The appellant has made categorical and explicit admissions to all the incriminating questions put to him. 30. Thus, apart from the judicial confession recorded under Section 164 Cr.PC, appellant has also admitted specifically in his examination under Section 313 Cr.PC to have killed Sunku Kheria and Prahlad Mura. 31. So far as the admissions made in the course of examination under Section 313 Cr.PC the law laid down in this regard by the Hon'ble Supreme Court in the case of State of Maharashtra v. Sukhdev Singh, reported in (1992) 3 SCC 700 establishes that such admissions recorded under Section 313 Cr.P.C. can be used for proving the guilt of the accused and held as under:- "51. That brings us to the question whether such a statement recorded under section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes sub-section (4) which reads "313. (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." Law on admissions in 313 CrPC Thus the answers given by the accused in response to his examination under section 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. This court in the case of Hate Singh v. State of Madhya Bharat, 1953 Cr.L.J. 1933 held that an answer given by an accused under section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh Vs. State of Punjab, [1963] 3 SCR 678 this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge Bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685 "Under section 342 of the Code of Criminal Procedure by the first subsection, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under section 342 is primarily to be directed to those mattes on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may "be taken into consideration" at the enquiry of the trial. By sub-section (3), the answers given by the accused may "be taken into consideration" at the enquiry of the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charges against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety Sub-section (1) of Section 313 corresponds to sub- section (1) of section 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under clause (b) may also be dispensed with. Sub-section (2) of section 313 reproduces the old sub-section (4) and the present sub-section (3) corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old sub-section (3) Therefore, the aforestated observations apply with equal force." 32. The law laid down in the case of Sukhdev Singh (supra), lays down in no uncertain terms that the incriminating admissions made during examination under Section 313 CrPC can be taken into account to ascertain the guilt of the accused. 33. In the present case the appellant, not once, but on several occasions during the course of examination under Section 313 Cr.PC, admitted to hacking Sunku Kheria and Prahlad Mura to death by his axe. 34. Thus, not only the prosecution evidence amply establishes the charge under Section 302 IPC against the appellant, his admissions in his statement under Section 164 Cr.PC as well as those under Section 313 Cr.PC re-enforces the prosecution evidence. 35. So far as the charge under Section 323 IPC is concerned neither any argument has been made in this regard nor does it require any special attention in view of the categorical evidence of PW 2 Sri Kalia Khera coupled with the evidence of PW 18, Dr. Nripen Saikia who found abrasion on the right leg of Sri Kalia Khera. So far as the charge under Section 323 IPC is concerned neither any argument has been made in this regard nor does it require any special attention in view of the categorical evidence of PW 2 Sri Kalia Khera coupled with the evidence of PW 18, Dr. Nripen Saikia who found abrasion on the right leg of Sri Kalia Khera. The injury is simple in nature and hence the conviction under Section 323 IPC is justified. 36. In view of the discussions held hereinbefore no interference with the order of conviction recorded by the learned trial court is called for. So far the sentence imposed upon the accused-appellant under Section 302 of the IPC, the same being statutorily prescribed minimum punishment, and the sentence imposed under Section 323 of the IPC being within the statutorily prescribed limit, no interference is called for. 37. The appeal is, accordingly, dismissed. 38. 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 her.