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2019 DIGILAW 379 (GAU)

Sukhlal Majhi v. State of Assam

2019-03-26

M.R.PATHAK, MANOJIT BHUYAN

body2019
JUDGMENT : MANOJIT BHUYAN, J. 1. By the Judgment dated 30.03.2016 passed by learned Additional Sessions Judge, Cachar, Silchar in Sessions Case No. 65 of 2015 the appellants Sukhlal Majhi and Lakhiram Majhi have been convicted under Section 302/34 of the Indian Penal Code and sentenced to suffer imprisonment for life and also to pay fine of Rs. 5,000/- each, in default thereof, to suffer simple imprisonment for 6 months. They were also convicted under Section 201/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 3 years each and also to pay a fine of Rs. 2,000/- each, in default thereof, to suffer simple imprisonment for 3 months. The jail sentences have been ordered to run concurrently and period of detention already undergone to be set off accordingly. 2. The victim of the incident was Amal Majhi, aged 17 years. 3. According to the prosecution case, on 10.10.2014 Amal Majhi (victim) along with two others i.e. Khagen Majhi and Sukhlal Majhi (appellant no. 1) had gone to a place called Sonai Ujjan, NEEPCO to cut bamboos on daily wage basis under a contractor Abdul Latif. All three of them returned to the house of Bimal Majhi (informant and elder brother of Amal Majhi) after about a month at around 12 noon of 11.11.2014. There they shared their proceeds after which Khagen Majhi left for his house. Thereafter at around 2 P.M. Sukhlal Majhi took Amal Majhi to his house. When Amal Majhi did not return home, Bimal Majhi went to the house of Sukhlal Majhi on 18.11.2014 and enquired about his missing brother. Sukhlal Majhi could not give any convincing answer, whereafter villagers got together and put pressure on him as regards the whereabouts of Amal Majhi. On being pressurised, Sukhlal Majhi admitted to having killed Amal Majhi, leaving the body buried under the ground. Sukhlal Majhi was apprehended and handed over to the police at Srikona P.P. on 19.11.2014. Bimal Majhi lodged ejahar which was entered as Srikona P.P. G.D.E. No. 284, dated 19.11.2014. The same being forwarded to the Silchar Police Station, the case was registered as Silchar P.S. Case No. 2876/2014. 4. To bring home the guilt of the appellants, the prosecution examined as many as 13 witnesses, including the Medical Officer who had conducted autopsy as well as the Investigation Officer in the case. One Moina Majhi was examined as Court Witness. 4. To bring home the guilt of the appellants, the prosecution examined as many as 13 witnesses, including the Medical Officer who had conducted autopsy as well as the Investigation Officer in the case. One Moina Majhi was examined as Court Witness. The appellants were examined under Section 313 Cr.P.C. and they declined to adduce evidence in their defence. They abjured any guilt and pleaded false implication and emphasised on their innocence. 5. On appreciation and on marshalling the evidence on record the appellants were found guilty of being connected with the murder of Amal Majhi on the basis of the disclosure statement (Ext. 6) of appellant no. 1 Sukhlal Majhi, leading to discovery of the dead body of Amal Majhi on a hillock/tilla, where the decomposed body was found with creepers tied around the neck. Conviction was also based on the 'last seen together' theory and that of the extra-judicial confession of Sukhlal Majhi made to Bimal Majhi (informant and PW 9) and Soral Majhi (PW 10), besides others. 6. In the disclosure statement (Ext. 6) recorded under section 161 Cr.P.C., the appellant no. 1 Sukhlal Majhi stated that after sharing the wages on 11.11.2014, he had tricked Amal Majhi to his house for a stroll. Noticing that Amal Majhi was casting an evil eye on his daughter, he became angry and hit him on the neck by the side of the head with a crow-bar. He, however, did not anticipate that Amal Majhi would die. With the help of appellant no. 2 Lakhiram Majhi the dead body of Amal Majhi was taken to a hillock near his residence where he strangulated Amal Majhi with creepers to ensure his death and kept the dead body buried in the jungle. He disclosed that he will show where he has kept the dead body. 7. Having regard to the disclosure statement above and turning to the evidence tendered by the prosecution witnesses, it is seen that Hirendra Chandra Das (PW-1), who deposed as the VDP Secretary of the village, stated that police took him to the house of Sukhlal Majhi and on being questioned Sukhlal showed the hillock where the dead body of Amal Majhi was kept. At the site a dead body was found being eaten by a dog with creeper around the neck of the deceased. At the site a dead body was found being eaten by a dog with creeper around the neck of the deceased. According to PW-1, Sukhlal Majhi admitted that he had struck Amal Majhi with a shovel and thereafter he along with Lakhiram Majhi carried the body to the hillock and strangulated with creepers. PW-1 stood as a witness when Sukhlal Majhi handed over a shovel to the police, which was seized vide Seizure List (Ext. 1), with his signature at Ext. 1(1). Police also seized the creeper from the neck of the deceased vide Ext. 2 Seizure List, with Ext. 2(1) being the signature of PW 1. Pintu Roy (PW-2) also deposed that he was present at the time when Sukhlal Majhi showed the police and C.R.P.F. personnel the dead body in the hillock. He also deposed that Sukhlal Majhi admitted to striking the victim with a shovel and carrying the body to the hillock with the help of Lakhiram Majhi and covering the body with creepers. He also deposed that the hillock belonged to one Sephali Roy and her house is also there. He stood as a witness to the seizure that was made vide Ext. 1. Monilal Gour (PW-3) testified and corroborated the fact that Sukhlal Majhi showed the dead body which was kept in the hillock/tilla of Sephali Roy. He was also a witness to the seizure that was made by Ext. 1. Sephali Roy (PW-5), Sanjoy Roy (PW-6), Ronik Roy (PW-7), Khagen Majhi (PW-11) and Ajit Majhi (PW-12), despite being declared as hostile witnesses, lent support to the prosecution case. Out of them, Sephali Roy supported the fact that police had come with Sukhlal Majhi to the tilla and the latter had showed the dead body which was recovered by the police. Ronik Roy also deposed that Sukhlal Majhi led the police to the tilla/hillock of Sephali Roy from where the dead body was recovered. He also stated that Sukhlal Majhi had handed over a shovel to the police and that he stood as a witness to the seizure of the shovel. Khagen Majhi (PW-11) deposed that he was present when Sukhlal Majhi showed police the place where he killed Amal Majhi and the dead body of Amal Majhi was found with a creeper tied around the neck. Khagen Majhi (PW-11) deposed that he was present when Sukhlal Majhi showed police the place where he killed Amal Majhi and the dead body of Amal Majhi was found with a creeper tied around the neck. In cross by the prosecution (as he had been declared hostile), he stated that he had told police of the admission made by Sukhlal Majhi of the killing of Amal Majhi and that Lakhiram Majhi assisted him. Besides the witnesses who were declared hostile, Bimal Majhi (PW-9) clearly deposed that Sukhlal Majhi led the police and other villagers to the tilla where the dead body of Amal Majhi was recovered with creeper tied around the neck. The testimony of Soral Majhi (PW-10) also lent support to the fact of recovery. Sajal Kanti Sengupta (PW-13), who was the Investigation Officer of the case, deposed that Sukhlal Majhi led them to the place where the dead body was concealed. He also stated that he had recorded the disclosure statement, which was brought on record as Ext. 6. He further deposed that Sukhlal Majhi had handed over a shovel to him which was seized vide Ext. 1 in presence of witnesses. 8. To establish the 'last seen together' aspect of the case, it was brought in evidence that the deceased victim was last seen in the company of Sukhlal Majhi in the house of Bimal Majhi, at which time Khagen Majhi (PW-11) and Moina Majhi (CW-1) were also present. It is in the evidence of Bimal Majhi (PW-9) and Moina Majhi (CW-1) that both Sukhlal Majhi and Amal Majhi left the house, whereafter Amal Majhi did not return back. It is also brought in evidence through the testimony of Dr. Gunajit Das (PW-8), who had conducted autopsy on 20.11.2014, together with the Post Mortem Report (Ext. 5), that the approximate time since death was 1-2 weeks, meaning that Amal Majhi was killed around the time when he was last seen with the Sukhlal Majhi. 9. As regards the extra-judicial confession, it is the case of the prosecution that Sukhlal Majhi had admitted/confessed before Bimal Majhi (PW 9), Soral Majhi (PW-10) and Khagen Majhi (PW-11) that he had killed Amal Majhi. He also admitted before Bimal Majhi and Khagen Majhi that appellant no. 2 Lakhiram Majhi had helped him in the incident. 10. 9. As regards the extra-judicial confession, it is the case of the prosecution that Sukhlal Majhi had admitted/confessed before Bimal Majhi (PW 9), Soral Majhi (PW-10) and Khagen Majhi (PW-11) that he had killed Amal Majhi. He also admitted before Bimal Majhi and Khagen Majhi that appellant no. 2 Lakhiram Majhi had helped him in the incident. 10. The appellants were examined under section 313 Cr.P.C. and defence taken was of complete denial of their involvement in the offence. Although the deceased was last seen in the company of Sukhlal Majhi and never thereafter, no explanation is made by Sukhlal Majhi in his statement under section 313 Cr.P.C. the circumstances under which he parted company with Amal Majhi. The Post Mortem Report at Ext. 5 records the dead body as that of a male, aged 17 years which was brought for examination on 20.11.2014. The body was in a highly decomposed condition with mature maggots crawling all over the body. The upper limb on the left side from left elbow was found missing and the right hand from the wrist was missing exposing the bones. Multiple rounds of wild vegetable creepers were found tightly enclosing the neck encircling it at a horizontal plane. Dried tissues were found on removal of the creepers. The scalp was also missing exposing the skull. In the opinion of the Medical Officer (PW-8), death was due to ligature strangulation, which was ante-mortem and homicidal in nature. The approximate time since death was 1 - 2 weeks. The state of the body and presence of creepers around the neck, as recorded in the Post Mortem Report found corroboration in the evidence of prosecution witnesses. 11. Extra-judicial confession has formed a basis of conviction of the appellants. It, therefore, becomes important for the Court to examine the same with a greater degree of care and caution. If the extra-judicial confession, in the facts of the case, can be accepted to be a basis of conviction, the same has to pass the test of credibility and evidentiary value. One of the settled principles where an extra-judicial confession can be regarded as an admissible piece of evidence capable of forming the basis of conviction is that the same should have been made voluntarily and in a truthful manner. Care and caution has to be exercised while examining the aspect as it is a weak piece of evidence by itself. One of the settled principles where an extra-judicial confession can be regarded as an admissible piece of evidence capable of forming the basis of conviction is that the same should have been made voluntarily and in a truthful manner. Care and caution has to be exercised while examining the aspect as it is a weak piece of evidence by itself. Indeed, it has come in evidence that Sukhlal Majhi confessed before Bimal Majhi (PW-9), Soral Majhi (PW-10) and Khagen Majhi (PW-11) that he had killed Amal Majhi. On a bare perusal of their depositions before the Court there is nothing to demonstrate that such confession was exacted by inducement, threat or promise made to Sukhlal Majhi. However, on a closer perusal of the ejahar dated 19.11.2014 and that of the statements made by Bimal Majhi (PW-9) and Soral Majhi (PW-10) in their statements under section 161 Cr.P.C, the element of pressure being applied to Sukhlal Majhi to admit his guilt are clearly evident. The depositions before the Court by Bimal Majhi and Soral Majhi in respect of the circumstances under which Sukhlal Majhi made confession are not consistent with their statements under section 161 Cr.P.C. One of the cardinal principles of extra-judicial confession being the voluntariness of the confession itself and having regard to the observations above which are derived from the materials on record, this Court is of the opinion that it was not correct for the Court below to rely upon such extra-judicial confession to return a verdict of conviction on this score. 12. Notwithstanding our finding on the aspect of extra-judicial confession above, the statement of Sukhlal Majhi to the police under section 27 of the Evidence Act, 1872 leading to discovery of the dead body as well as the circumstances of the deceased last seen with Sukhlal Majhi, takes the case to a different level altogether. Although the theory of last seen may not independently be sufficient to lead to a finding of guilt, however, it is an important event in the chain of circumstances that can completely establish and/or point to the guilt of the accused with some certainty. Undoubtedly, there must be definite evidence to indicate that the deceased have been done to death of which the accused is aware of as also proximate to the time of being last seen together. Undoubtedly, there must be definite evidence to indicate that the deceased have been done to death of which the accused is aware of as also proximate to the time of being last seen together. In the instant case there are definite and clinching evidence in the testimonies of Bimal Majhi (PW-9) and Moina Majhi (CW-1) that in the afternoon of 10.10.2014 both Sukhlal Majhi and Amal Majhi left the house of Bimal Majhi together, whereafter the whereabouts of Amal Majhi was not known. There is also definite evidence in the form of disclosure statement of Sukhlal Majhi under section 27 of the Evidence Act indicating that he killed Amal Majhi. The medical examination of the dead body on 20.11.2014 and the Post Mortem Report thereof shows that the approximate time since death was 1-2 weeks. Clearly, the time since death as per the Post Mortem Report is proximate to the time of being last seen together. The circumstances that preceded and followed the point of being last seen, in our considered view, is an important event in the chain of circumstances establishing the guilt of Sukhlal Majhi with certainty. 13. The conditions prescribed in section 27 of the Evidence Act, as an exception against admissibility of statements of accused under section 25 and 26 of the said Act, permits custodial statements as legal and admissible evidence on the fulfilment of the conditions, such as (i) a fact should have been discovered in consequence of the information received from the accused; (ii) he should have been accused of an offence; (iii) he should have been in the custody of a police officer when he supplied the information; (iv) the fact so discovered should have been deposed to by the witness/witnesses. In the instant case the statement made by Sukhlal Majhi was at a time when he was accused of an offence and was in the custody of police, which statement was recorded by Sajal Kanti Sengupta (PW-13) vide Ext. 6. On the basis of such statement/information, the discovery of the decomposed body of Amal Majhi was made at the tilla/hillock, which fact was corroborated through the evidence of Hirendra Chandra Das (PW-1), Pintu Roy (PW-2), Monilal Gour (PW-3), Sephali Roy (PW-5), Ronik Roy (PW-7), Bimal Majhi (PW-9), Soral Majhi (PW-10), Khagen Majhi (PW-11) and Sajal Kanti Sengupta (PW-13). 6. On the basis of such statement/information, the discovery of the decomposed body of Amal Majhi was made at the tilla/hillock, which fact was corroborated through the evidence of Hirendra Chandra Das (PW-1), Pintu Roy (PW-2), Monilal Gour (PW-3), Sephali Roy (PW-5), Ronik Roy (PW-7), Bimal Majhi (PW-9), Soral Majhi (PW-10), Khagen Majhi (PW-11) and Sajal Kanti Sengupta (PW-13). The discovery of the corpse in consequence of the information received from Sukhlal Majhi under section 27 of the Evidence Act is the most vital link vis-à-vis the commission of the crime, which by itself completes the chain of circumstances establishing the guilt of Sukhlal Majhi. 14. Turning to the conviction and sentence imposed on Lakhiram Majhi, we would take notice that there are no evidence of any prosecution witnesses affording sufficient corroboration to find him guilty under section 302 of the Indian Penal Code. Sukhlal Majhi had confessed in his statement leading to discovery that his nephew Lakhiram Majhi was with him and with his help the dead body of Amal Majhi was taken to the tilla/hillock. Bimal Majhi (PW-9) and Soral Majhi (PW-10) deposed that Sukhlal Majhi had admitted before them that Lakhiram Majhi had assisted in the incident. This is as much material on record for implicating Lakhiram Majhi. There being no substantive and independent evidence, the confession of Sukhlal Majhi and that of the testimonies of PW-9 and PW-10 cannot be used for sustaining the conviction of Lakhiram Majhi under section 302 of the Indian Penal Code. There are no evidence that the criminal act was done by both Sukhlal Majhi and Lakhiram Majhi in furtherance of a common intention so as to attract the provisions of section 34 of the Indian Penal Code. To reiterate, the only evidence is the disclosure statement of Lakhiram Majhi helping Sukhlal Majhi to carry the dead body of Amal Majhi to the hillock. The said fact would only make Lakhiram Majhi guilty of having committed offence under section 201 of the Indian Penal Code to the extent that having reason to believe that an offence has been committed, he involved himself in causing disappearance of evidence of the commission of offence with the intention of screening Sukhlal Majhi from legal punishment. We, therefore, respectfully disagree with the conviction and sentence imposed upon Lakhiram Majhi under section 302/34 of the Indian Penal Code. We, therefore, respectfully disagree with the conviction and sentence imposed upon Lakhiram Majhi under section 302/34 of the Indian Penal Code. In this connection, we would note that Lakhiram Majhi has been in detention since 28.11.2014. 15. In view of the above, we sustain and affirm the conviction and sentence imposed upon Sukhlal Majhi but convert the conviction on Lakhiram Majhi to the offence under section 201 of the Indian Penal Code and convert the sentence to the period undergone. Lakhiram Majhi, therefore, be set at liberty, if not wanted in any other case. The appeal stands partly allowed. 16. Before we part with this case we appreciate the service rendered by both the learned Amicus Curiae Ms. Rita Das Mazumdar as well as by learned Additional Public Prosecutor, Assam Mr. Makhan Phukan. We direct the Gauhati High Court Legal Services Committee, Guwahati to pay Rs. 7,500/- to Ms. Rita Das Mazumdar towards her fees. 17. Registry shall return the records to the Court of learned Additional Sessions Judge, Cachar, Silchar along with a copy of this Judgment. Registry shall also furnish two copies of this Judgment to the accused appellants Sukhlal Majhi and Lakhiram Majhi free of cost through the Superintendent, Central Jail, Silchar, District-Cachar, Assam.