Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 163 (GAU)

Chatam Tara v. State of Arunachal Pradesh

2020-02-07

KALYAN RAI SURANA

body2020
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. P. Taffo, the learned counsel for the petitioner. Also heard Ms. L. Hage, the learned Additional Public Prosecutor ('APP' for short) for the State. 2. The appellant is the accused in Sessions Case No. 54/2012, which was tried by the Court of learned Sessions Judge, West Kameng District, Bomdila. The appellant was charged under Section 302 IPC, and by the judgment and order dated 29.10.2019, the said learned Court had convicted the appellant under Section 304 Part-I IPC, and by sentence pronounced on 30.10.2019, the appellant was sentenced to undergo imprisonment for a period of 3 (three) years 6 (six) months out of which he was to undergo rigorous imprisonment for a period of 6 (six) months and in addition, he was also sentenced to pay a fine of Rs. 3,000/-, in default to undergo further custody of 3 (three) months. It was also provided that 660 days spent by the appellant during pre-trial stage would be set off. The said judgment, order and sentence is assailed in this appeal. 3. In brief, the case of the prosecution is that on 23.03.2004, the appellant had killed (1) Sangkhop Tara, wife of his brother and, (2) Tapa Tara, son of his brother and the first deceased at Tara village. In this regard one Tachang Sonam, Political Interpreter, Office of E.A.C., Bameng, through the E.A.C., Bameng Circle lodged a complaint before the police and accordingly, Seppa P.S. Case No. 15/04 under Section 302 IPC was registered. The investigation of the case was handed over to one K. Lali, Inspector, I.O., who is stated to have visited the place of occurrence, had drawn up a rough sketch map and examined the available witnesses. When the appellant was arrested on 24.3.2004, he was found with serious injury on his neck, stated to be self inflicted injury after killing two persons. The appellant was sent for medical examination and E.A.C., Bameng-cum-Executive Magistrate had conducted an inquest over the dead bodies and dead bodies were handed over to the relatives of the deceased for last rites vide this order dated 23.03.2004. It is projected that before the arrival of the police team, both the dead bodies were buried. The weapon of offence i.e. dao was seized by the E.A.C. and handed over to the police. It is projected that before the arrival of the police team, both the dead bodies were buried. The weapon of offence i.e. dao was seized by the E.A.C. and handed over to the police. The appellant is stated to have made confession of his guilt and, as such, he was forwarded to the court for recording of confession of his statement. 4. On commencing of the trial, it appears that charges were framed under Section 302 IPC against the appellant by order dated 18.07.2014, and the trial had commenced. 5. As per column 10 of the charge sheet, the seized dao was mentioned as the article seized during the investigation. The charge-sheet mentioned names of 7 (seven) witnesses and the following documents were sent out to the court for trial, viz., (1) Magistrate order copy, (2) Injury report, (3) Rough sketch map of place of occurrence (4) forwarding of accused for confession statement, (5) dead body handing/taken over certificate, (6) seizure list, (7) inquest report, (8) confessional statement, (9) 6 Nos. of statement. 6. The prosecution examined 3 (three) witnesses, viz., (i) Kago Lali, (10) (PW-1), (ii) Rupak Boje, (Judicial Magistrate First Class) (PW-2), (iii) Dr. Jennifer Tayeng, (Medical Officer, District Hospital, Seppa) (PW-3). The said witnesses had exhibited the following, viz., FOR (P/Ext. 1), charge-sheet (P/Ext. 2), complaint under Sec. 161 Cr.P.C. (P/Ext. 3), statement of accused under Section 161 Cr.P.C., (P/Ext. 4), statement by G.C. Deory, EAC (P/Ext. 5), statement of Kamta Tara (P/Ext. 6), rough sketch map of place of occurrence (P/Ext. 7), forwarding of arrested person (P/Ext. 8), forwarding of arrested person for recording confession (P/Ext. 9), form of recording by PW-2 (P/Ext. 10), injury report by PW-3 (P/Ext. 11), referral certificate (P/Ext. 12). The prosecution did not examine any independent witnesses. Thereafter, the appellant was examined under Section 313 Cr.P.C. and the learned trial court after hearing the learned counsel for both the sides, passed the judgment, order and sentence, impugned herein. 7. 9), form of recording by PW-2 (P/Ext. 10), injury report by PW-3 (P/Ext. 11), referral certificate (P/Ext. 12). The prosecution did not examine any independent witnesses. Thereafter, the appellant was examined under Section 313 Cr.P.C. and the learned trial court after hearing the learned counsel for both the sides, passed the judgment, order and sentence, impugned herein. 7. The learned counsel for the appellant, assailing the impugned judgment, order and sentence, has submitted that the learned trial Court had based the judgment, amongst others, on 4 counts, viz., (1) the purported confession made by the appellant, (2) circumstantial evidence that the I.O. had found from the evidence collected during the investigation by which it was projected that the appellant had illicit relationship with the deceased lady and that after killing the lady, her son was also beheaded outside their home, (3) the learned trial court relied on an alleged settlement made between parties by which the appellant was to pay Rs. 40,000/- and one "tado moni" (local beads) for settlement of the dispute, (4) although the inquest report was not exhibited, but the learned trial court found no reason to discard the remarks contained in the inquest report by invoking Section 35 of the Evidence Act. It is also submitted that there are other various issues involved in the appeal, but in the manner the learned Court had appreciated these four points, the impugned judgment, order and sentence was liable to be set aside. It is also submitted that the prosecution witnesses could not establish or prove the ingredients of Section 302 IPC or Section 304 Part-I and/or Part-II, as such, the conviction and sentence was not sustainable. 8. The learned APP has made her submissions in support of the impugned judgment, order and sentence. It is submitted that the appellant had made a confession before the PW-2 and in light of such confession, even assuming that there were some infirmities in the evidence of the witnesses examined, the confession was sufficient for the learned trial Court to impose the sentence, as passed, against the appellant. By referring to the evidence of the I.O. (PW-1), it is submitted that he had exhibited the statement of the witnesses examined by him, being (i) the statement of accused recorded under Section 161 Cr.P.C. (Ext. 4), (ii) statement of G.C. Deory, E.A.C., recorded under Section 161 Cr.P.C. (Ext. By referring to the evidence of the I.O. (PW-1), it is submitted that he had exhibited the statement of the witnesses examined by him, being (i) the statement of accused recorded under Section 161 Cr.P.C. (Ext. 4), (ii) statement of G.C. Deory, E.A.C., recorded under Section 161 Cr.P.C. (Ext. 5), (iii) statement of Kamta Tara, eye witness, husband of deceased lady and father of deceased boy, recorded under Section 161 Cr.P.C. Accordingly, it is submitted that on the said basis, the PW-1 was able to establish the commission of the offence by the appellant. The learned APP, by referring to the evidence of PW-2, it is submitted that the said witness had recorded the statement of the appellant under Section 164 Cr.P.C., which was a candid admission that clearly established that the appellant had confessed his guilt. It is also submitted that the Doctor (PW-3) had examined the injury sustained by the appellant and as per the injury report (P/Ext. 11), it proved that the appellant had suffered a cut injury in the anterior aspect of neck (self-sustained) after murdering the sister-in-law and nephew. Accordingly, it is submitted that these are sufficient evidence to prove the commission of the offence by the appellant. Thus, the learned APP has justified the punishment awarded to the appellant under Section 304 Part-II to undergo imprisonment for 3 (three) and half years including 6 months R.I., and fine with default sentence. 9. Having examined the materials on record, it would be relevant to mention herein that although the learned Sessions Judge, Bomdila had charged the appellant under Section 302 I.P.C., but, he was convicted under Section 304 Part-I IPC and sentenced under Section 304 Part-H IPC. 10. It is seen that as per charge sheet, one seizure list was forwarded to the learned trial court, but none of the 3 (three) witnesses including I.O. examined by the prosecution had exhibited the same. From paragraph-3 of the impugned judgment and order, it appears that the alleged weapon of offence was seized by the E.A.C., Bameng, namely, G.C. Deory, who was not examined by the prosecution. The I.O. (PW-1) had stated in his cross-examination that the seized weapon was not seen in Court. From paragraph-3 of the impugned judgment and order, it appears that the alleged weapon of offence was seized by the E.A.C., Bameng, namely, G.C. Deory, who was not examined by the prosecution. The I.O. (PW-1) had stated in his cross-examination that the seized weapon was not seen in Court. It is also seen that while recording the statement of the appellant under Section 313 Cr.P.C., no suggestion was given to him that he had used the weapon seized by the E.A.C. to kill two persons. Thus, none of the three witnesses examined by the prosecution had given any statement which linked the appellant with the seized weapon for commission of the crime with which he was charged. 11. The prosecution has heavily relied on the purported confession statement recorded by PW-2. It would be relevant to quote the purported confession:- "Q. 10. What you have to say? Ans: I did not have any enmity feelings with my elder brother Sri Kamta Tara or my bhabi Lt. Sangkop Tara. Now, I am not in a position to tell that incident i.e. when, how and where I had killed my bhabi and her son Lt. Tapa Tara as it seems I have lost my memory power. I even do not remember when the police did interrogation on me. I came to know about it only when I was told by other people and my mother. Yes, I think I might have killed my own bhabi, and my nephew. And the cut injury that I got on my throat is also perhaps I might have done myself with my dao as I might have felt disgusted on myself for what I had done. That's all I've to say." 12. However, while recording the statement of the appellant under Section 313 Cr.P.C., when the appellant was accosted with his purported confession with a suggestion that after knowing all the consequences whether he had made a confession of killing 2 persons and after recording, the contents of the confession was read over and whether the appellant had to give any explanation to his statement, the appellant had denied the statement as being not true and he had further disposed to the effect that the Magistrate had given a false evidence against him and that he had never made any confession before him. Thereafter, a suggestion was given to the appellant that after killing both victims he realized about the offence after his mother and other family relatives talked about it, but he denied the same to be true. He also denied remembering any first-aid administered to him or for being referred for medical treatment from the Seppa Hospital to outside the State. Having seen the nature of the purported confession, this court is of the considered opinion that the said statement, being qualified with the suggestion that he might have killed two persons, but this is preceded by a statement that he had lost his memory power and how the incident occurred and further he did not remember the police interrogation and it was further stated that he came to know about the alleged crime when he was told by other people and his mother and therefore, he thought he might have killed his sister-in-law and nephew. Such a statement cannot be a confession and/or admission of guilt. The said purported admission is not found to be equivocal or a clear admission of guilt. Moreover, when the appellant was confronted with his purported confession while recording his statement under Section 313 Cr.P.C., the appellant had retracted his confession. In the present case in hand, the learned trial court did not make any attempt to discard the retraction made by the appellant regarding confession of his guilt, but the court had accepted the said statement to be a confession of guilt. In this regard, the learned trial Court had over-looked one important statement made by the PW-2 in his cross examination. PW-2 was the Judicial Magistrate, First Class, who had recorded the purported confession of the appellant. In para-2 of his cross examination, PW-2 had clearly stated that the appellant did not directly admitted his guilt, however, he realized the commission of offence on being informed by other persons. Thus, in view of the discussion above, this Court is not inclined to accept that the purported statement of the appellant under Section 164 Cr.P.C. amounted to confession of his guilt. The impugned judgment, order and sentence is liable to be interfered with on the said count. 13. In its finding and decision, the learned trial Court has mentioned that it was also on record that the case was settled between the parties at the rate of Rs. 40,000/- and one tado moni. The impugned judgment, order and sentence is liable to be interfered with on the said count. 13. In its finding and decision, the learned trial Court has mentioned that it was also on record that the case was settled between the parties at the rate of Rs. 40,000/- and one tado moni. However, the said agreement was not exhibited before the court. The LCR does not show how copy said agreement came on record because it was neither produced by any witnesses nor is it a document relied on in the charge sheet. The learned trial court has recorded as follows:- "It is also on records that the case was settled between parties at rate of 40,000/- and one Tado Moni. The records have been verified by the Political Assistant DC Office Seppa and place on records of the case." 14. Accordingly, it is apparent that the court relied on a record, which was not seen by it, but purportedly examined by Political Interpreter (PI), which is nothing but hearsay evidence and the same was accepted the same merely because the said record was verified by the Political Interpreter (PI) in the Office of Deputy Commissioner, Seppa. Apolitical interpreter is not a post created by the Government of Arunachal Pradesh with any power conferred under the Criminal Procedure Code. Similarly, it is also seen that in paragraph 24(g) of the impugned judgment and order, the learned trial Court had held that the inquest report was not exhibited, yet by invoking Section 34 of Evidence Act, 1872, the said learned Court found no reason to discard the remarks made in the inquest report. This part of the finding also suffers from non application of well settled legal principle that the order of conviction cannot be based on an un-exhibited document. Section 35 of the Evidence Act, merely deals with-relevancy of entries made in public record in performance of duty. However, if such document is not exhibited at all by the prosecution, merely because Section 35 of the Evidence Act deals with relevancy of public record made in performance of official duty, such entries including its contents prove nothing. Therefore, there is no hesitation to hold that the conviction of the appellant, inter-alia, is based on extraneous material not forming a part of the record. 15. Therefore, there is no hesitation to hold that the conviction of the appellant, inter-alia, is based on extraneous material not forming a part of the record. 15. By "record", as referred to in the foregoing paragraph, the court means that such document which forms evidence of the case. It is well established principle that any document which is not proved in evidence does not form a part of the records of the trial court and same is required to be segregated for return to the party who has produced it. In this regard reference may be made to the Gauhati High Court Criminal Court Rules and Orders (hereinafter referred to as "the said Rules"). Part-A, Chapter-3 of the said Rules deals with division of the records into files. Rule 2 thereof contains description of documents, which form Part-A file, which includes, inter-alia, documents connected with offence and documents admitted in evidence at the trial or inquiry. As per Rule 16 thereof, documents admitted as evidence in trial or inquiry and not included in File A shall be placed in a supplementary file. Rule 29 thereof requires that documents which are not admitted as evidence should not be made a part of record but should at once be returned to the party by whom they have been produced. In view of the said Rules, the Court has mentioned that document not admitted in evidence do not form a part of the record and are liable to be returned. Therefore, the learned trial court had based the order of convicting the appellant is based on an extraneous material, on being un-exhibited agreement, that portion of finding is not sustainable. 16. From the statement of Tachang Sonam, Political Interpreter, recorded under Section 161 Cr.P.C., it is seen that the said person (i) had been informed by Gaon Buras at 06.30 am. on 23.3.2004 at his residence at Bameng about the murder of two persons and that he was also informed that the appellant had run away to jungle after killing, (ii) he informed the E.A.C., Bameng about the incident, (iii) he along with G.C. Deory, E.A.C., Bameng had started for the place of occurrence at 7.30 am. on 23.03.2004 (iv) he along with EAC, Bameng reached the spot at about 9.00 am. on 23.03.2004 (iv) he along with EAC, Bameng reached the spot at about 9.00 am. on 23.03.2004, and the EAC had himself conducted the inquest over the dead body, (v) the E.A.C. had permitted the relatives of the deceased to go ahead with the burial of dead body, (vi) the E.A.C. had arrested the appellant from the house of Late Nido Tara, (vii) the appellant was kept in custody of police and others. As per the statement of G.C. Deory, recorded under Section 161 Cr.P.C., the appellant was arrested with purported serious self inflicted injury on 23.03.2004 from the house of his mother in the main road and brought to Bameng HQ. as per the forwarding report (P/Ext. 8), the appellant was arrested on 24.03.2004. As per statement of PW-3, the appellant was produced for medical examination at 4.20 pm. on 24.03.2004. As per the FIR, the police was informed about the crime on 24.03.2004 and thereafter, investigation of case was taken up and the appellant was arrested by the police on 24.03.2004. Accordingly, before the police had arrived the dead bodies of the victims were buried and the I.O. did not take the pain to exhume or examine the body in order to find out whether there has been a commission of crime or not. No attempt was made by the prosecution to get dead body examined by a medical officer and to obtain his opinion as to the cause of death, nature of injuries suffered by the deceased and as to whether the cause of death was homicidal. As indicated herein before, the murder weapon was not exhibited in Court and similarly, the seizure list was also not exhibited before the learned trial Court. No attempt was made by the prosecution secure attendance of any eye witness to be examined in the Court to prove that offence was committed by the appellant. As indicated herein before, the murder weapon was not exhibited in Court and similarly, the seizure list was also not exhibited before the learned trial Court. No attempt was made by the prosecution secure attendance of any eye witness to be examined in the Court to prove that offence was committed by the appellant. Moreover, as the I.O. did not examine the dead bodies and there is no medical evidence on record to show the manner in which the victims had died, linking the death with the weapon of murder, the finding by the learned trial court that the appellant had murder the 2(two) victims, appears to be based on mere conjunctures and surmises because the prosecution had not even examined (i) the EAC, Bameng who had done the inquest, passed order dated 23.3.2004, permitting the disposal of the dead bodies before the arrival of the police, arrested the appellant before arrival of police, and (ii) the Political Interpreter. It would also be relevant to mentioned herein that although the I.O. (PW-1) had investigated a double murder and accused the appellant of the crime, but in his cross examination he could not even recognize the appellant standing in the dock. 17. The learned trial court in its judgment had referred to illicit relationship between the appellant deceased lady, but the I.O. (PW-1), in his cross examination had admitted that he had not mentioned in the charge-sheet regarding the appellant having illicit relation with the deceased lady. The I.O. had also admitted in his cross examination, that he could not collect evidence or motive of the appellant behind the killing of the two deceased. The Judicial Magistrate, First Class (PW-2), had candidly admitted in paragraph-2 of his cross examination that the appellant did not directly admit his guilt, but the appellant revealed that he realized the commission of offence on being informed by the other persons. 18. The doctor (PW 3), in her evidence had merely stated that she had given her finding in the injury report, but the contents of the injury report was not narrated by PW-3. It is well settled that unless the contention of the document is proved, merely by marking of the injury report as an exhibit (P/Ext. 11), cannot be said to have proved the nature of injury suffered by the appellant. It is well settled that unless the contention of the document is proved, merely by marking of the injury report as an exhibit (P/Ext. 11), cannot be said to have proved the nature of injury suffered by the appellant. Therefore, the injury purportedly found on the appellant could not be proved as a self-inflicted injury, arising out of remorse of having killed two persons. 19. The learned trial Court had charged the appellant of murder under Section 302 IPC. However, by holding that the prosecution has not been able to produce any evidence to prove the motive and mens rea to commit the offence, held that the case fell under category of Section 299 IPC, culpable homicide not amounting to murder. It was further held that from the inquest report, the Court can presume that the appellant had a knowledge that in ordinary course of such bodily injury is likely to cause death of a person, it was a case punishable under Part-I of Section 304 IPC. Accordingly, by holding that the prosecution was unable to prove the case under Section 302 IPC, altered the Section from 302 to 304 IPC. By order dated 30.10.2019, the appellant was sentenced under Section 304 Part-II IPC, to undergo imprisonment and fine as indicated herein before. 20. In the present case in hand, the Court find that no villagers, member of house-hold or eye witness to the crime was examined as witnesses. The I.O. did not examine the dead bodies. The inquest report itself was not exhibited or proved. The dead bodies were allowed to be buried and the I.O. did not seek any order to exhume the dead bodies and to sent it for medical examination to ascertain the cause of death. The weapon of murder was not exhibited. The seizure list of the weapon of offence was not proved. While examining the appellant under Section 313 Cr.P.C., he was not confronted with suggestion of having committed murder of two persons with the weapon purportedly seized by the E.A.C. Therefore, the Court is constrained to hold that the prosecution has not been able to prove (i) the death of two victims of murder, (ii) whether the death was homicidal in nature, (iii) weapon of murder, (iv) link the appellant with double-murder. Moreover, when the confessional statement is itself not clear and unambiguous regarding admission of committing the offence, moreover, when PW-2, who had recorded the alleged confession, had himself admitted in his cross examination that the appellant had not directly admitted his guilt, the reliance of the learned trial Court on the so-called confession is not sustainable on facts and in law. Moreover, the conviction is also found to be based on on-exhibited documents like (i) inquest report, and (ii) an agreement of paying money and local beads against crime. Under such circumstances, the Court is inclined to hold that the conviction of the appellant was based on conjunctures and summarizes alone, which is not sustainable on facts and in law. 21. In view of the discussions above, the Court has no hesitation to set aside the judgment and order dated 29.10.2019, thereby convicting the appellant under Section 304 Part-I and sentence imposed on the appellant by order dated 30.10.2019. The appellant, namely, Chatam Tara is acquitted of the charges under 302 IPC, conviction under Part-I of Section 304 IPC and sentence under Part-II of Section 304 IPC. The appellant is set at liberty, if not wanted in any other cases.