Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 509 (GAU)

Kumar Deori v. State of Assam

2019-04-25

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

body2019
JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. A.K. Bhuyan, learned counsel for the appellant in Crl.A. No. 303/2015 and Mr. AM Bora, learned senior counsel for the appellants in Crl.A. No. 297/2015. Also heard Ms. S. Jehan, learned Additional Public Prosecutor, Assam as well as Mr. JC Gogoi, learned counsel appearing for the informant/respondent No. 2. 2. An ejahar dated 03.01.2006 was lodged by one Rana Deori, son of Alguram Deori before the Officer-In-Charge of Bihpuria Police Outpost stating that at about 8 A.M., on 03.01.2006, the persons named there in furtherance of their conspiracy had abducted Lila Kanta Deori, husband of the Chief Executive Officer of the Deori Autonomous Council at gunpoint from his vehicle at Tarajuli Tiniali. In the ejahar as many as 7 persons were named including the appellant No. 6 Rajesh Deori, appellant No. 1 Civil Deori, appellant No. 3 Hari Prasad Deori and appellant No. 5 Mahesh Deori in Criminal Appeal No. 297/2015. 3. In the trial, charges were framed against the appellant No. 1 Civil Deori, appellant No. 3 Hari Prasad Deori, appellant No. 5 Mahesh Deori who were named in the ejahar along with appellant No. 2, Robin Deori and appellant No. 4, Promod Deori in Criminal Appeal No. 297/2015 and Kumar Deori the appellant in Criminal Appeal No. 303/2015. 4. The informant Rana Prasad Deori who deposed as PW-1, stated that at about 9 A.M. of the given day, he came to learn that somebody had abducted his brother-in-law, Lila Kanta Deori from Tarajan Tiniali and that the information was given to him by Pabitra Deori who is the driver of Lila Kanta Deori. He further deposed that the driver and the other person who had given the information came by a Victa vehicle which belonged to his brother-in-law. PW-1 deposed that his elder sister Amrit Prabha Deori who is also the wife of Lila Kanta Deori was the Chief Executive Officer of the Deori Autonomous Council and that there were certain differences between their family and the followers of Mahesh Kumar Deori as regards the functioning of the Council. He further deposed that the hostility between the two groups increased after his elder sister became the Chief Executive Officer of the Council. He further deposed that the hostility between the two groups increased after his elder sister became the Chief Executive Officer of the Council. After lodging of the ejahar, when he went to the Narayanpur Police Outpost he found the accused Civil Deori, Hari Prasad Deori, Robin Deori, Mahesh Deori in the lockup. 5. PW-2, Rajdeep Deori, who happened to be a passenger in the ASTC bus from which the deceased was abducted deposed that he saw two persons forcefully taking the deceased Lila Kanta Deori off the bus and, thereafter, he did not return back to the bus. But in cross, the PW-2 stated that the two persons who took Lila Kanta Deori off the bus were not amongst the six persons who were present in the dock on the given day. It is taken note of that except for the accused Rajesh Deori all the other accused persons are stated to have been present in the dock when the aforesaid statement was made by the PW-2 in the cross examination, which again leads us to an inference that the accused persons other than Rajesh Deori were not involved in taking away the deceased Lila Kanta Deori from the bus. 6. PW-3, Shillong Deori in his deposition stated that he saw that Civil Deori, Robin Deori, Hari Prasad Deori, Mahesh Deori had led the police on foot and that he saw the dead body of Lila Kanta Deori in their presence. 7. PW-5, Kishore Kumar Deori deposed that he does not know any person by the name of Kumar Deori and having learnt that the dead body of Lila Kanta Deori was recovered at Tarajuli, he went there and saw the police and the public surrounding the dead body in a field at the foot of the hill. As per his statement, the PW-5 had seen the police and the public surrounding the dead body when he had reached the place of occurrence. 8. PW-6, Surya Deori in his deposition stated that he came to know that the dead body of Lila Kanta Deori was lying at the foot hill of Tarajuli and, accordingly, went to the spot where he saw the dead body. The deposition of PW-6 does not indicate that the body was recovered on a disclosure by the accused persons. 9. PW-6, Surya Deori in his deposition stated that he came to know that the dead body of Lila Kanta Deori was lying at the foot hill of Tarajuli and, accordingly, went to the spot where he saw the dead body. The deposition of PW-6 does not indicate that the body was recovered on a disclosure by the accused persons. 9. PW-7, Dipak Deori in his deposition stated that he came to know from Rajdeep Deori and the police present at the Bandardewa Outpost that the accused persons present in the Police Outpost and some other persons had brought down Lila Kanta Deori from the bus by force and took him towards the hill side of Tarajuli. He further deposed that on 04.01.2006 when he and others went to the Bandardewa Outpost they found the accuseds Civil Deori, Hari Prasad Deori, Promod Deori and Robin Deori at the police outpost and when the police had interrogated them in their presence then all the four accused persons disclosed to the police that they had committed the murder of Lila Kanta Deori and had kept the dead body concealed in the hill side of Tarajuli. PW-7 further deposed that Mahesh Deori, Fiju Deori, Lila Deori, Robin Deori, Civil Deori, Ganapati Deori, Hari Prasad Deori, Promod Deori, Probin Deori held a meeting on 01.01.2006 in the house of Bishnu Deori of Kinapathar Majorchapori and made a conspiracy to kill Lila Kanta Deori. He also deposed that on 02.01.2006 he came to know about the conspiracy from Ganapati Deori. 10. We have taken note of that the entire deposition of PW-7, Deepak Deori is based upon a hearsay knowledge from Rajdeep Deori and the police personnel as regards the accused persons having brought down Lila Kanta Deori from the bus and from Ganapati as regards the conspiracy being hatched in the house of Bishnu Deori by the aforementioned persons. The further deposition of PW-7 is that on 04.01.2006 upon interrogation by the police, the four accused persons Civil Deori, Hari Prasad Deori, Promod Deori and Robin Deori had disclosed to the police that they had committed the murder of Lila Kanta Deori and kept the body concealed at the hill side. The further deposition of PW-7 is that on 04.01.2006 upon interrogation by the police, the four accused persons Civil Deori, Hari Prasad Deori, Promod Deori and Robin Deori had disclosed to the police that they had committed the murder of Lila Kanta Deori and kept the body concealed at the hill side. Here also we take note that as per the evidence on record, the dead body of the deceased was already recovered and, therefore, it cannot be said that the body was recovered based upon the disclosure made by the four aforementioned accused persons to the police on 04.01.2006. 11. PW-8, Uday Kumar Deori in his deposition stated that he came to know at about 9/10 AM on 03.01.2006 that some youths had abducted the deceased Lila Kanta Deori by bringing him down from a bus, which information was given to him by Mon Folia Deori. He further deposed that on 04.01.2006 at about 9 AM, he came to know from the villagers that the dead body of Lila Kanta Deori was found at the hill side of Tarajuli. PW-8 also deposed that on 02.01.2006 some of the accused persons including Mahesh Deori and Civil Deori along with others had conspired in the house of Bishnu Deori to kill Lila Kanta Deori and the witness came to know about it when he was present in a hotel near Narayanpur Block Tiniali, when Ganapati Deori was discussing about it. 12. We have taken note that PW-8 came to know about the conspiracy being hatched by Mahesh Deori and Civil Deori from Ganapati Deori when he was discussing about it at a hotel near Narayanpur Block Tiniali, where the witness happened to remain present, which again is a hear say evidence by the said witness as regards the conspiracy. 13. We also notice that even as regards the hear say view of the alleged conspiracy, PW-8 had not reported the same to anyone which again had been admitted by him in his cross by stating that he had not reported about the conspiracy of the accused persons before anyone. 14. 13. We also notice that even as regards the hear say view of the alleged conspiracy, PW-8 had not reported the same to anyone which again had been admitted by him in his cross by stating that he had not reported about the conspiracy of the accused persons before anyone. 14. Although the PW-10, Basanta Deori in his deposition stated that the deceased Lila Kanta Deori was taken out of a bus on 03.01.2006 while proceeding to his office at North Lakhimpur and was taken away to some unknown destination, but the said witness came to know about the occurrence only when he was present in the house of Lila Kanta Deori and at that time someone informed his wife over telephone that Lila Kanta Deori had been kidnapped on his way to the office. The witness further deposed that on 06.01.2006 he and another person Suresh Deori went to Bandardewa police outpost in the morning hour and found the four accused persons in the police outpost. He also deposed that the accused persons volunteered to lead the police to the place where they stated to have concealed the weapons used in the commission of the offence. Accordingly the police took the accused persons as well as PW-10 and Suresh Deori in a vehicle. After reaching the bank of the Dikrong river and on being led by the accused persons the Khukri was seized by the police, which was marked as Ext-4. 15. As regards the recovery of the weapon from the bush on being led by the accused person as deposed by PW-10, PW-19, the Circle Officer who had done the inquest and also recorded the confessional statement of the accused in his cross stated that the accused persons had confessed before him that after committing the offence they had thrown away the dao and other weapon of assault in the Dikrong river which is a big river. According to the said witness, the confessional statement was taken on 04.01.2006. According to the said witness, the confessional statement was taken on 04.01.2006. PW-27, the Investigating Officer in his deposition had stated that on 06.01.2006 he along with the Officer-in-Charge and the Circle Inspector and other staff, one constable of Arunachal Police and accused persons Civil Deori, Hari Prasad Deori, Robin Deori, Mahesh Deori Sri Basanta Deori and Suresh Deori went to Arunachal Pradesh and at Kandukhuwa Dikram river the accused had showed them the weapon of assault which was seized in the presence of Mansur AN, Basanta Deori, Suresh Deori and Wangmi Khamhua. 16. From the evidence as seen from the deposition of PW-19 and 27, the recovery of the weapon as stated by PW-10 that it was recovered on being led by the accused person from a bush is unacceptable. 17. Further PW-13 in his deposition stated that he came to know on 03.01.2006 at about 9.30 am that when Lila Kanta Deori was proceeding towards Panigaon to attend his duty in the Gramin Vikash Bank by boarding a bus from Narayanpur some persons dragged him out of the bus at Tarajuli and took him to the nearby jungle. When he visited the house of Lila Kanta Deori his wife told him that her husband was kidnapped by some persons on his way to Panigaon and had requested him and others present to inform the matter to the police. The witness further deposed that on the next morning they again went out searching for Lila Kanta Deori in the Tarajuli area and at that time found some persons assembled at the confluence of the rivers Dikrong and Khasi on the border of Assam and Arunachal Pradesh. When they approached the persons and enquired as to why they had assembled, the persons told them that a dead body was lying in the area and when they looked around found that the body of Lila Kanta Deori was lying there. The witness deposed that he instructed Rana Prasad Deori and Surya Deori to inform the police of Bandardewa outpost about the recovery of the body. Accordingly, the two persons went to the Bandardewa police outpost and informed the police about the recovery at about 11.00 am while the witness stayed back. It is deposed that after sometime the police personnel arrived at the spot and were of the view that they were required to bring a vehicle and a Magistrate. Accordingly, the two persons went to the Bandardewa police outpost and informed the police about the recovery at about 11.00 am while the witness stayed back. It is deposed that after sometime the police personnel arrived at the spot and were of the view that they were required to bring a vehicle and a Magistrate. After sometime, the police personnel along with a Magistrate arrived at the spot along with the accused persons. From the evidence of PW-13, it is discernible that body of deceased was found on the morning on 04.01.2006 by some persons who had gathered at the place and on being informed upon on making an enquiry, the PW-13 could find that it was the dead body of the deceased Lila Kanta Deori. Upon the police being informed, two police personnel came who though it appropriate that they were required to bring a vehicle and a Magistrate. Thereafter, the police personnel along with a Magistrate and the accused persons arrived at the spot where the body was recovered. 18. We have taken note that PW-3 in his deposition stated that the body was recovered by the police on being led by the accused persons. PW-6 also stated that the police took all the persons to the foothill of Tarajuli where the dead body was found lying. The said evidence of PW-3 and PW-6 as well as that of PW-7 that the body was recovered upon being led by the accused person is disbelievable in the light of the evidence of PW-13 who had clearly deposed that in the morning of 04.01.2006 when he along with some others went to the foothill of Tarajuli they had seen that some persons had assembled there who told them about the dead body that was lying there and upon proceeding towards the dead body they could find that it was the dead body of the deceased Lila Kanta Deori. Thereafter, the police were informed, who later on came along with the other police personnel and the Magistrate and also brought along with them the accused persons. Therefore, the evidence that the body was recovered on being led by the accused person would be unacceptable. The said aspect can also be noticed from the evidence of PW-4 who had stated that the dead body was lying in the concerned place and thereafter the police came there along with the accused persons. Therefore, the evidence that the body was recovered on being led by the accused person would be unacceptable. The said aspect can also be noticed from the evidence of PW-4 who had stated that the dead body was lying in the concerned place and thereafter the police came there along with the accused persons. From the aforesaid evidences, we are of the view that it cannot be accepted that the body of the deceased was recovered by the police on being led by the accused persons. 19. PW-7 had deposed that the accused person had confessed before the police in his presence that they had committed the offence of causing death to the deceased Lila Kanta Deori. We have also taken note of the deposition of the Circle Officer, PW-19 that the accused persons had made the confessional statement before him and that the confessional statement is exhibited as Ext-8. We have verified the records and have noticed that the required formalities of recording a confessional statement was not adhered to and therefore, it cannot be accepted to be a confessional statement under Section 164 Cr.P.C. But at the same time, the prosecution raises a contention that the purported confessional statement can be construed to be an extra judicial confession being made by the accused persons before the Circle Officer/Executive Magistrate. The records also reveal that the said confessional statement was recorded by the Circle Officer while the accused persons were in police custody. 20. We have perused the records to ascertain the manner in which such confessional statement was made by the accused before PW-19. The deposition of PW-19 shows that he was working as a Circle Officer of Bihpuria Circle at the relevant point of time and also was in additional charge of Narayanpur Circle. The PW-19 being the Circle Officer at the best we can understand that he may have been appointed as an Executive Magistrate by the State Government under Section 20 of the Cr.P.C. Further Section 3 of the Cr.P.C. provides that any reference made in the Code without any qualifying word to a Magistrate shall be construed unless the context otherwise requires that such reference is to a Judicial Magistrate or to a Metropolitan Magistrate. In the absence of any such qualifying word as regards PW-19, we construe that at the best PW-19 can be an Executive Magistrate but not a Judicial Magistrate. In the absence of any such qualifying word as regards PW-19, we construe that at the best PW-19 can be an Executive Magistrate but not a Judicial Magistrate. In the above context, when we read Section 26 of the Evidence Act, which inter alia provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person, the expression 'Magistrate' appearing in Section 26 in view of the provision of 3 of the Cr.P.C. would have to mean to be a Judicial Magistrate. 21. We understand the expression 'Magistrate' appearing in Section 26 of the Evidence Act to mean a Judicial Magistrate in view of the provisions of Section 3 of the Cr.P.C. As under the General Clauses Act, 1897, the expression 'Magistrate' has been defined to include every person exercising all or any of the power of the Magistrate under the Cr.P.C. for the time being in force, the expression 'Magistrate' being not defined under the Indian Evidence Act, we can safely adopt the meaning given to it under the General Clauses Act of 1897. As the General Clauses Act provides that the expression 'Magistrate' shall include every person exercising all or any of the power of Magistrate under the Cr.P.C. and as under the Cr.P.C. the expression 'Magistrate' is to be understood to be Judicial Magistrate unless the context otherwise provides, therefore, the expression 'Magistrate' appearing in any other Central Act or Regulation also has to be understood to be Judicial Magistrate, unless the context therein specifically provides otherwise. 22. Further Section 26 of the Evidence Act refers to a confession made in the presence of a Magistrate and the procedure by which such confession is to be recorded having been provided under Section 164 read with Section 281 of the Cr.P.C., such statement would have to be recorded by following the given procedure. As Sections 164 and 281 of the CPC provides for recording of confessional statement only by a Metropolitan or Judicial Magistrate and the said procedure is not made applicable to any other form of Magistrate, recording of a confession by a Magistrate under Section 26 of the Indian Evidence Act would have to be understood to mean the recording of the confession by Metropolitan Magistrate or Judicial Magistrate. 23. 23. From the records it is revealed that in the confessional statement relied upon by the prosecution which is exhibited as Exbt-8, the procedure prescribed under Sections 164 and 281 of the Cr.P.C. had not been followed and as such, it cannot be accepted to be a confessional statement made in the presence of a Magistrate as contemplated under Section 26 of the Evidence Act. 24. The informant raises a contention that in the absence of there being any material that PW-19 is a Judicial Magistrate and also in the absence of the required procedure prescribed under Section 164 read with Section 281 Cr.P.C. being followed, it can also be construed that the confessional statement made by the appellant before the PW-19 be an extra judicial confession. By relying upon such contention, the informant tries to justify the conclusion arrived at in the judgment and order dated 16.10.2015 of the learned Sessions Judge that the said confessional statement made before PW-19 is an extra judicial confessional. Even if we construe that the said confessional statement is an extra judicial confession made by the accused before any other person, although the said person may by designation be an Executive Magistrate, we are of the view that such confessional statement would be hit by Section 26 of the Evidence Act, 1872 and cannot be used for proving against the accused persons. 25. The state authorities raises a contention that the chain of circumstance as can be depicted from the evidence on record makes it a complete chain so as to prove beyond reasonable doubt that it is the accused persons who had committed the act of causing death to the deceased. To substantiate such contention, Ms. S. Jahan, learned Addl. Public Prosecutor submits that the evidence on record clearly reveals that there was some enmity between the accused persons and that of persons associated with the deceased to the extent that both of them belonged to two opposite groups in the matter of undertaking the activities of Deori Autonomous Council and the wife of the deceased happened to be the Chief Executive Officer of the Council. The other circumstance pointed out was that the evidence on record reveals that the accused persons were involved in bringing down the deceased from the bus concerned and taking him to the nearby Tarajuli hill where the offence was committed. 26. The other circumstance pointed out was that the evidence on record reveals that the accused persons were involved in bringing down the deceased from the bus concerned and taking him to the nearby Tarajuli hill where the offence was committed. 26. Regarding the first contention that the enmity between the parties can be the basis to arrive at a conclusion that as because of the enmity the offence was committed by the accused persons alone, we are of the view that if otherwise circumstantially the involvement of the accused persons cannot be proved, mere existence of an enmity between the parties by itself would be insufficient to prove beyond all reasonable doubt that it is the accused persons who had committed the offence. 27. Secondly as regards the contention that it is the accused person who had brought down the deceased from the bus concerned and took him to the nearby hills, we find that PW-2 who happened to be a passenger in the bus had only stated that two Deori youths had brought down the deceased from the bus without precisely identifying that the two Deori youths were the accused persons, where further in cross, the said witness had stated that the two persons who brought down the deceased from the bus were not amongst the six person who were present in the dock on the given date. It is an admitted position of the parties based upon the evidence on record that amongst the six persons who happened to be in the dock on the given date also included all the appellants herein except the appellant Rajesh Deori, which again is a positive statement from the PW-2 that the accused persons other than Rajesh Deori, were not involved in bringing down the deceased from the bus. As regards Rajesh Deori, there is no material on record that he was in any manner involved in bringing down the deceased from the bus. In view of the above, we are unable to conclude that the accused persons were involved in bringing down the deceased from the bus and had taken him to the nearby hills. 28. A further circumstance is being urged upon by the prosecution that the weapon used in the offence had been recovered on being led by the accused persons. In view of the above, we are unable to conclude that the accused persons were involved in bringing down the deceased from the bus and had taken him to the nearby hills. 28. A further circumstance is being urged upon by the prosecution that the weapon used in the offence had been recovered on being led by the accused persons. We reiterate our conclusion hereinabove that there is no clarity in the evidence of the prosecution that the weapons were recovered on being led by the accused persons in the manner in which it is stated in the evidence. In fact, we are of the view that in this respect, the evidence of PW-27 and PW-10 are at a variance with each other. 29. In view of the above, we also find it unacceptable to conclude that the weapons used in the offence were recovered on being led by the accused persons in the manner as sought to be depicted by the prosecution. Apart from the above two witnesses, the other witnesses namely, PW-11, Wangmi Khamua, PW-16, Neyolal Deori and PW-25, Monsur AN who had also deposed as regards the recovery of the weapon had been declared to be hostile. 30. In view of the above conclusion the contention of the prosecution that circumstantially the chain of events is complete to prove beyond all reasonable doubt that it is the accused persons alone who had committed the offence is found unacceptable. 31. A further circumstance is being contended that the accused persons were apprehended in the Assam and Arunachal Pradesh border. To that extent, we have gone through the evidence of PW-27 wherein, it is deposed that the police of Bandardewa outpost had informed that four Deori persons had crossed the Arunachal Pradesh border at about 5.40 pm and they were apprehended while they were coming out from Arunachal Pradesh. Some other evidence reveals that they were apprehended at about 9.00 pm. We have already taken note that the occurrence had taken place sometime between 8.30 to 9.00 am, whereas the PW-27 deposed that the accused persons had crossed the territory of Arunachal Pradesh at 5.40 p.m. and were apprehended at 9.00 pm when they coming out from Arunachal Pradesh. Some other evidence reveals that they were apprehended at about 9.00 pm. We have already taken note that the occurrence had taken place sometime between 8.30 to 9.00 am, whereas the PW-27 deposed that the accused persons had crossed the territory of Arunachal Pradesh at 5.40 p.m. and were apprehended at 9.00 pm when they coming out from Arunachal Pradesh. It being so, we do not find any circumstance as to how the four persons who entered Arunachal Pradesh at 5.40 pm can be said to be involved in the occurrence which had taken place at 8.30 to 9.00 A.M. inside Arunachal Pradesh. 32. For the reasons, we are unable to accept that the chain of events is complete which circumstantially proves beyond all reasonable doubt that it is the accused persons who had committed the offence of causing death to the deceased. Accordingly, we set aside the judgment and order dated 16.10.2015 of the learned Sessions Judge, Lakhimpur in Sessions Case No. 38(NL)2008 and, accordingly, also set aside the conviction of the accused persons under Sections 143/120(B)/364/302/201 IPC as well as the sentence of RI for 6 (six) months with fine of Rs. 1,000/- in default to undergo RI for 1 (one) month for the offence under Section 143 IPC; RI for 2 (two) year with fine of Rs. 1,000/-, in default to undergo RI for 1 (one) month for the offence under Section 120(B) IPC; RI for 5 (five) years with fine of Rs. 2000/-, in default to undergo RI for 2 (two) months for the offence under Section 364 IPC; imprisonment for life with fine of Rs. 5,000/-, in default to undergo RI for a period of 5 (five) months for the offence under Section 302 IPC; and RI for 3 (three) years with fine of Rs. 2000/-, in default to undergo RI for 2 (two) months for the offence under Section 201 IPC. 33. Appeal stands allowed. Bail bond stands discharged. 34. Send down the LCR.