Research › Search › Judgment

Meghalaya High Court · body

2022 DIGILAW 143 (MEG)

Demansing Kynter v. State of Meghalaya

2022-06-01

SANJIB BANERJEE, WANLURA DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The appellant's conviction under Section 302 of the Indian Penal Code, 1860 is based on his confessional statement and the supporting evidence pertaining to the surrounding circumstances. By the judgment of conviction of July 28, 2017 and the resultant sentence which was passed on July 31, 2017, the appellant has been found guilty of murdering an 18-year-old girl and sentenced to imprisonment for life. The further charge under Section 376 of the Penal Code was not established at the trial. 2. The principal ground urged on behalf of the appellant is that there was grave and sudden provocation by the deceased which made the appellant extremely angry and lose self-control and beat the women without intending to cause her death or even being aware that the nature of beating that he inflicted on the woman could have caused or was likely to cause her death. The appellant submits that though he fled from the place of occurrence after being shocked at what had happened, he later voluntarily surrendered at the Mawsynram Police Station. The appellant points out that no murder weapon was discovered and the investigating officer, who deposed as a prosecution witness, clearly asserted that the charge-sheet had been filed against the appellant based primarily on the confession that he had made before a First Class Magistrate under Section 164 of the Code of Criminal Procedure, 1973. 3. Another ground which is canvassed is that, as in many other cases in the State, the confessional statement of the appellant was recorded after administering oath to him. The appellant submits that since no oath could have been administered in view of Section 164 of the Code, the confessional statement was robbed of its evidentiary value as a result of the colossal mistake committed by the relevant Magistrate. 4. At any rate, the appellant suggest that there was nothing in his conduct to suggest that he had acted in a cruel manner and the appellant's reaction after the incident was as would be in every other case of a normal person being first shocked at what had happened and, thereafter, being afraid of the consequences. 5. 4. At any rate, the appellant suggest that there was nothing in his conduct to suggest that he had acted in a cruel manner and the appellant's reaction after the incident was as would be in every other case of a normal person being first shocked at what had happened and, thereafter, being afraid of the consequences. 5. It is necessary to deal with the aberration on the part of the Magistrate in administrating oath before recording the confessional statement rendered by the appellant on June 29, 2005, about a fortnight after the incident which took place in the morning of June 6, 2005. Section 164(5) of the Code, no doubt, exempts a confessional statement being recorded in such manner as would be appropriate when recording oral evidence. The relevant provision upholds the rule against self-incrimination as embodied in Article 20(3) of the Constitution. 6. While other statements under Section 164(1) of the Code made in course of an investigation under Chapter XII of the Code require to be recorded in a particular manner and the relevant Magistrate is also empowered to administer oath to the person whose statement is recorded, when it comes to a confession, no oath ought to be administered though the recording ought to be in accordance with Section 281 of the Code and the confessional statement should be signed by the person making the confession. In addition, the Magistrate is duty-bound to indicate to the person seeking to make or making the confession that such person is not bound to make any confession, but if he does, it may be used as an evidence against him. Further, the Magistrate has to ascertain that the confession was voluntarily made and such Magistrate has to record his satisfaction in this regard. The confessional statement has to be taken by the Magistrate in his presence and hearing and the same has to be read over to the maker of the statement and the consent of the maker has to be obtained upon reading out the statement to him. 7. These safeguards, including the certificate that the Magistrate has to issue, are to ensure that the confession is not coerced out of the accused or that the accused is not subjected to such treatment as would make him to break down and confess or even make a false confession to escape the treatment that he was being subjected to. 7. These safeguards, including the certificate that the Magistrate has to issue, are to ensure that the confession is not coerced out of the accused or that the accused is not subjected to such treatment as would make him to break down and confess or even make a false confession to escape the treatment that he was being subjected to. 8. The parenthesis in the opening limb of Section 164(5) of the Code merely indicates that oath need not be administered to a person making a confessional statement. The words appearing within the brackets cannot be read as a prohibition or a negative command. Such words do not imply that if oath was accidentally administered, but all the other safeguards as contained in the provision were adhered to, merely by reason of the administration of oath, the confession would have to be discarded. 9. Indeed, the Evidence Act provides that admission (or confession) is the best form of evidence. Further, Section 229 of the Code itself contemplates that an accused may plead guilty, whereupon, the judge may record the plea and in his discretion convict him on such basis. 10. As noticed above, the real purpose of exempting the administration of oath to a person making a confessional statement is that such person would not be charged with perjury upon any anomaly being discovered in his confession. It really follows from the previous safeguards as to a confessional statement that have been expressly provided for in the provision and the scope whereof has been broadened by judicial interpretation of such provision. 11. Ordinarily, a person is liable to answer a question put to him by a court and the person is held accountable for his response. However, a confession is an exception to the general rule and it is to be made voluntarily without being induced by any pressure, influence or threat. The scheme of Section 164 of the Code is such that the safeguards pertaining to a confessional statement must be complied with, both in form and in essence. The Magistrate must enquire as to the custody from which the person intending to make the confessional statement was produced and the treatment that he had been subjected to in such custody so that there is no scope of the statement being made by coercion or any fear of otherwise being subjected to cruel treatment. 12. The Magistrate must enquire as to the custody from which the person intending to make the confessional statement was produced and the treatment that he had been subjected to in such custody so that there is no scope of the statement being made by coercion or any fear of otherwise being subjected to cruel treatment. 12. It is for such reason that the Magistrate should ascertain the reason why the person intends to confess and should warn the person that the confession would be used against him. Even after recording the confession, the Magistrate should afford the person sufficient time to reflect and, during such time of reflection, the person should be totally free of police influence. At the time of the Magistrate recording the confession of the accused, no police personnel should be present in the room or be visible to the accused or even be in a position to hear what the accused says. 13. Finally, notwithstanding Section 229 of the Code, the trial court looks at the surrounding circumstances even if no other ocular evidence is available, to ascertain whether the confession fits into the scheme of things and is consistent with how the offence may have been committed. 14. In the context of Section 164 of the Code, the mandate therein is to scrupulously follow the safeguards to ensure that the confession is voluntarily made. The safeguards indicated in the provision are the substantive content of the law laid down therein and the exemption of the maker of a confessional statement from being administered oath is merely procedural so that any part of the confession, if subsequently discovered to be false, leaves him immune to prosecution for perjury. If the statutory safeguards as enumerated in Section 164 of the Code are followed while recording a confessional statement, the mere fact that oath may have been administered to the maker of the statement would not vitiate the same or rob the confession of its evidentiary value. However, the immunity against perjury would still be in place despite the confessional statement being obtained under oath. 15. However, the immunity against perjury would still be in place despite the confessional statement being obtained under oath. 15. Indeed, the very fact that the maker of the confessional statement has to be afforded an opportunity to reflect on whether the confession should remain and he has the choice of even discarding the entirety of the statement before he appends his signature to the document on which the confession is recorded, would go to show that the accidental or erroneous administration of oath to the person is of no consequence since no sanctity or conclusively fastens to the statement till after the maker signs the confession upon having due time to reflect thereon. 16. In this case, however, the trial court did not rely merely on the confession but it called for the entire evidence to be adduced and upon analysing the evidence and being satisfied that the presence of the appellant herein at the place of occurrence was beyond any doubt and the fact that the appellant had led the police to the torn clothes of the deceased at the place of occurrence, the trial court took the confessional statement of the appellant into account in passing the judgment of conviction. 17. Apart from the formal witnesses, including the informant who had lodged the first information report on June 13, 2005, the wife of the appellant was also examined in course of the trial. According to his wife, the appellant returned home in the evening of June 6, 2005 and complained of having suffered scratches on his face in course of cutting bamboo in the forest. The appellant's wife also deposed that the appellant sought mustard oil from her to apply on his face, whereupon the wife got the mustard oil which the appellant applied on his face. 18. It also came out in course of the evidence that after the local unit of the Khasi Students' Union informed the Mawsynram Police Station on June 13, 2005 that the 18-year-old girl had gone missing from the morning of June 6, 2005, a friend of the appellant apparently informed the appellant that the police were on the lookout for the appellant, whereupon he fled his home, but later surrendered at the police station. 19. 19. The FIR was made after the body of the victim had been discovered and it was stated therein that there were cigarettes and a bottle of liquor, among others, which were lying around at the place of occurrence. An allegation was also made that the woman had been raped. It further appears that the body of the victim was buried before it was disinterred and sent for a post-mortem examination. Such aspect of the matter is clearly spelt out in the post-mortem report. As a result of the body having been interred it had decomposed substantially and though the basic wounds inflicted on the victim could be discerned, other crucial tests could not be conclusively conducted. Indeed, the charge of rape was dropped against the appellant because the hymen was found to be decomposed and no conclusive view could be indicated as to whether it had been torn. Further, upon the body being buried and skin having been decomposed to some extent, marks of injuries other than the grievous ones could no longer be detected. 20. The medical examiner who conducted the post-mortem examination in the afternoon of June 16, 2005 found grievous injuries on the left temple and forehead. Similar injuries were discovered on the upper limbs and forearms of the victim and also on her chest. The cause of death, in the opinion of the medical examiner, was the shock and haemorrhage suffered as a consequence of the grievous blunt injuries to the forehead, chest and arms. 21. To any trained person or even an ordinary person with reasonable intelligence, it is evident that the blows inflicted on the victim may have been by a right-handed person with some blunt object such as a bamboo or the branch of any tree that could have been easily found at the place of occurrence. The confessional statement of the appellant did not refer to any weapon, nor was any weapon discovered. The incident occurred when the victim had gone to wash clothes and the appellant happened to be in the vicinity at such time. 22. According to his confessional statement, the appellant claimed to have known the victim. The appellant volunteered that the victim 'used to tease me and accused me of theft. I used to get mad with her'. The incident occurred when the victim had gone to wash clothes and the appellant happened to be in the vicinity at such time. 22. According to his confessional statement, the appellant claimed to have known the victim. The appellant volunteered that the victim 'used to tease me and accused me of theft. I used to get mad with her'. As to the incident of June 6, 2005, the appellant's statement must be seen in exactly how it was said or may have been translated by the relevant Magistrate: '...On the 6th June, 2005 I was filling water from the village reservoir when I met her. Here she started quarrelling with me and I got mad with her. Later I hit her hard on her temples and then she fell, she was bleeding from the mouth and the nose, I later dragged her body to a nearby spot. I did not mean to kill her but I was the one to kill her. It was only a fight which just got out of control. However, I did not rape her but I admit that I am guilty of murder which I pray to the Court to grant mercy. After having committed the offence I was afraid so I went to the nearby jungle and was missing from the Village. Later I realised my guilt and I surrendered....' 23. It was necessary to quote the entirety of the appellant's description of the incident on June 6, 2005 in the light of the submission made on his behalf that this may not have been a case of murder but should be viewed as one of culpable homicide not amounting to murder, which ought to have attracted Section 304 of the Penal Code rather than Section 302 thereof. 24. Much emphasis has been laid on behalf of the appellant on the provocation in this case. The appellant asserts that any reasonable person would be extremely upset and angry if baselessly accused of theft. The appellant says that since the appellant faced such grave provocation of being accused of theft without any basis therefor, the appellant lost self-control and, in the scuffle that took place, he hit the victim rather more grievously than he intended to without ever seeking to kill or maim the victim or even realising that his assault on the victim could result in any serious injury or death. 25. 25. In effect, the appellant seeks to come under the first exception in Section 300 of the Penal Code as to when culpable homicide would not be murder. Such first exception, in its part material for the present purpose, provides that culpable homicide would not be murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation. The relevant exception is subject to certain conditions being complied with as adumbrated in the three provisos thereto. Even if, for the present discussion, such conditions are, for argument's sake, taken to have been complied with, the Explanation to the first exception would preclude the first exception being attracted in the present case. The relevant Explanation provides as follows: 'Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact'. 26. In the present case since there was no eye-witness to the incident, the only true account of the incident could have come from the victim and the appellant. However, upon the death of the victim, it was only the appellant's account which had to be taken into consideration to assess whether the act that he had committed would fall within the first exception in Section 300 of the Penal Code. 27. It is, thus, that the narration of the incident by the appellant which has to be the sole basis to assess whether the appellant was guilty of mere culpable homicide or whether the act amounted to murder. The provocation that the appellant refers to in his statement was of the victim calling him a thief or accusing the appellant of theft. There is nothing in the confessional statement which indicates that any physical provocation was given by the victim or that the victim had charged at the appellant or attempted to assault the appellant in any manner. 28. For the purpose of the first exception in Section 300 of the Penal Code, the provocation has to be so grave and so unexpectedly sudden as would result in any normal person losing self-control. Ordinarily, any provocation by way of oral accusation, however unreasonable and unjustified it may be, may not be seen to be enough provocation for a physical retaliation. Ordinarily, any provocation by way of oral accusation, however unreasonable and unjustified it may be, may not be seen to be enough provocation for a physical retaliation. Thus, the provocation in this case as complained of in the confessional statement by the appellant, on facts, would not justify the action taken thereupon by the appellant. 29. More significantly, the post-mortem report reveals that the victim was, in a sense, bludgeoned to death by a blunt weapon. Even if it is accepted that an accusation as to the character of a person may be grave provocation, if the weapon had been a sharp-cutting weapon which could have caused death upon it being wielded only once, a case of loss of self-control upon the provocation may, arguably, have been made out. But a blunt instrument takes much more effort to kill a human being and the postmortem report reveals that the injuries were inflicted on both sides of the chest and on the upper arms as would be when a person would seek to defend herself against an assault by anything used as a weapon to beat her. There was more than one injury discovered on the forehead and the most grievous injury to the left temple was as could be inflicted by a right-handed person brandishing a blunt weapon at the victim. 30. The confessional statement refers to a quarrel but does not refer to the appellant being physically attacked by the victim for the appellant to have reacted in the aggressive manner that he did, by picking up some blunt object which may have been lying around at the place. 31. Finally, the appellant admitted that the victim used to tease the appellant by calling him a thief at which the appellant used to get angry at her. Thus, at the back of the appellant's mind was the previous insults by the victim. Once so much is evident, coupled with the nature of the blows inflicted on the victim by the appellant, even the intent of the appellant becomes suspect. The appellant bore a grudge against the victim and, while it is true that the victim may have falsely accused the appellant of theft once again, the appellant's reaction was far too aggressive and grossly disproportionate to the provocation that may have been offered by the victim. 32. The appellant bore a grudge against the victim and, while it is true that the victim may have falsely accused the appellant of theft once again, the appellant's reaction was far too aggressive and grossly disproportionate to the provocation that may have been offered by the victim. 32. For an act to fall within the first exception in Section 300 of the Penal Code, the provocation by the then to-be victim has to be both grave and sudden; and so grave and so sudden as would deprive the offender of the power of self-control. The words used are unambiguous and have held good for a long time and the illustrations pertaining to the first exception emphasise on both the gravity and the suddenness of the provocation without either element being separated from the other. Indeed, in the expression 'grave and sudden' as used in the substantive part of the first exception being repeated in the same form in the Explanation, the emphasis is on both the features of provocation - the extent and the timing thereof. Even if the provocation were to be extreme, but not sudden, the most grievous form of provocation would not attract the relevant exception. Likewise, the completely out-of-the-blue suddenness of the provocation would not suffice, for the purpose of the exception, if the provocation was not grave. 33. The appellant herein did not claim that the victim initiated any physical action. Further, for the element of suddenness that the word 'sudden' as used in the provision connotes, there has to be something unexpected and not anything which could have been reasonably anticipated or foreseen. Implicit in the appellant's confessional statement is the fact that the victim was given to taunting the appellant by calling him a thief. If such was the case then it was not unexpected of the victim to have accused the appellant of theft upon countering the appellant at the place of occurrence. If it was the usual habit of the victim to taunt the appellant by calling him a thief, the provocation that the appellant now cites to bring his act within the fold of the first exception in Section 300 of the Penal Code cannot be seen to be sudden in the unexpected sense of suddenness. 34. If it was the usual habit of the victim to taunt the appellant by calling him a thief, the provocation that the appellant now cites to bring his act within the fold of the first exception in Section 300 of the Penal Code cannot be seen to be sudden in the unexpected sense of suddenness. 34. The victim's taunt on that fateful morning may have been the proverbial last straw on the camel's back that the appellant was unable to bear and which impelled him to do what he confessed to having done. Such a reaction of the appellant cannot be seen to be an appropriate retaliation to the kind of grave and sudden provocation that the first exception in Section 300 of the Penal Code calls for. If there was a history to the taunting, the provocation was not unexpected and, in such sense, not sudden. The action of the appellant does not fit the benchmark tests of either grave provocation or of sudden provocation as required by the two words conjointly used in relevant expression in the provision. 35. For the aforesaid reasons, the act admittedly committed by the appellant in this case could not have been regarded as culpable homicide not amounting to murder. The trial court appropriately analysed the evidence before it and drew the proper inference therefrom. The trial court noticed the demeanor of the appellant while the appellant issued routine denials to the questions put to him in course of his examination under Section 313 of the Code. The appellant's responses to two questions, in particular, stand out and such questions ought to have elicited better or different answers from the appellant for any modicum of defense to be made out against the charge of murder that the appellant faced. 36. In course of a question put by the trial court to the appellant under Section 313 of the Code, the court detailed the evidence of the Magistrate who had recorded the appellant's confessional statement. The court reiterated the substance of the appellant's confession. This was an opportunity for the appellant to add to the confession that he had made or to detract therefrom or deny the same. The appellant merely asserted that he did not stand by any confessional statement recorded by the relevant Magistrate. The court reiterated the substance of the appellant's confession. This was an opportunity for the appellant to add to the confession that he had made or to detract therefrom or deny the same. The appellant merely asserted that he did not stand by any confessional statement recorded by the relevant Magistrate. Similarly, when the oral evidence of the appellant's wife was summarised and placed before the appellant for his comment, including that the appellant had suffered scratches on his face on June 6, 2005, he merely said that the evidence was false. The suffering of scratches on the face would be consistent with any resistance put up by a victim upon facing an assault. Such part of the evidence not only corroborated the confession that the appellant had made but also showed the state of his mind. This was not a case where a sudden grievous injury was inflicted as a result of a provocation, whereupon the offender would be overcome with grief and remorse. The appellant confessed to having dragged the body away from the plain sight close to the village reservoir. While it may be true that the appellant did not go to the reservoir on that day with a premeditated plan to kill the victim, yet upon the victim confronting the appellant with the accusation of theft, his reaction was consistent with the commission of murder. 37. For the reasons indicated hereinabove, the judgment of conviction is found to be eminently in order. The sentence awarded was the logical legal consequence of the conviction. 38. It is submitted on behalf of the appellant that the appellant has now undergone more than 15 years of imprisonment. 39. The sentence awarded is maintained without adding thereto. As a consequence, if the appellant is entitled to any remission or discharge or the like, it will be open to the appellant to explore such avenues in accordance with law. 40. Crl.A. No. 21 of 2019 fails and the same is dismissed by upholding the judgment of conviction and by adding to the reasons indicated therein. The sentence awarded calls for no interference. 41. Let an authenticated copy of this judgment and order be immediately made available to the appellant free of cost.