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2022 DIGILAW 325 (GAU)

Kahito Sema S/o Orphan v. State Of A. P.

2022-03-29

A.M.BUJOR BARUA, ROBIN PHUKAN

body2022
JUDGMENT : A.M. Bujor Barua, J. Heard Mr. H Lampu, learned Amicus Curiae for the appellant, Mr. J Tsering, learned Public Prosecutor for the State of Arunachal Pradesh and Ms. N Danggen, learned Amicus Curiae appearing for the informant. 2. An FIR was lodged by Jongkem Longri inter-alia alleging that his sister-in-law Thuhim Longri, wife of Kemla Longri, aged about 35 years had been brutally murdered by some unknown person at old Khamdu village when she went to take bath from the nearby water source. The FIR also states that as per the information of the villagers, the accused Kahito Sema, who was staying in the same village in the house of Jongkong Longri may have been involved in the brutal killing and that the accused had given a warning to the deceased a few days ago that she will be finished if she does not stop poking into his matter. Further, the accused also had an illicit relationship with the victim as per the information of the villagers. 3. Based upon such allegation, Jairampur police station case No. 07/2015 was registered u/s 376/302 of the IPC. Upon completion of the investigation and the charge-sheet being submitted, the learned Sessions Judge, Tazu, East Sessions Division, Tezu framed the charges against the accused/appellant and accordingly, the case was tried u/s 302/201 of IPC. 4. The prosecution examined nine witnesses. PW-1 Jonkem Longri in his evidence stated that he came to know about the incident from the Gaonbura of Old Khamdu village and upon hearing the same, he visited the place of occurrence and saw the deadbody with multiple cut injuries on head and body, which appeared to have been caused by blade and stone. The witness stated that he suspected that the accused/appellant Kahito Sema was the person who had caused the death of the deceased. 5. PW-2 Jongkong Longri in his deposition stated that on the day of the incident, he had seen the accused/appellant proceeding towards the Giri Nallah to take bath at about 3.00 p.m. and came back in the evening and took dinner and without saying anything, went away from his house. Later on, he came to know from the villagers that the deceased was suspected to have been killed by the accused who had left his house on the same evening. 6. Later on, he came to know from the villagers that the deceased was suspected to have been killed by the accused who had left his house on the same evening. 6. PW-3 Monshom Mossang in his deposition stated that when he came back from his works place with a torch, upon reaching Giri Nallah, he had seen blood stain on the stones and also noticed some marks of something been dragged towards the jungle. When he followed the dragging marks inside the jungle, he saw the deadbody partially covered with banana leafs. 7. PW-4 Honjo Longri in her deposition stated that her daughter had told her that she wanted to marry the accused, but she objected and on the day before the incident, the accused had told her that he had a quarrel with the deceased at the Nallah. On that day i.e. the day prior, the accused/appellant went to the Nallah to fetch water, but came back to the village with only one bucket, and the container which he had left behind in the Nallah was brought back by her deceased daughter. 8. PW-6 Dr. P Sonowl was the doctor who attended to the accused/appellant on 27.04.2015 on being brought by the police and found an incised wound measuring 1 cm x .4 cm in size on his right index finger and also another incised wound measuring 1 cm in length on his middle finger. Both the injuries were simple in nature and probably caused by sharp object. PW-6 stated in his deposition that the accused/appellant had stated before him that he had killed the deceased, but he had denied having sex with the deceased. 9. PW-7 was the Medical Officer at Jairampur CHC who had conducted the postmortem examination and had described the various injuries that were seen on the deadbody of the deceased. 10. PW-8 Tomal Wangpan was the Investigating Officer, who had conducted the investigation. The Investigating Officer in his deposition stated that he had received an FIR on 27.04.2015 on being lodged by Jomkem Longri that on 26.04.2015 his sister-in-law Thuhim Longri was brutally murdered by someone when she went for her bath and that the informant suspected that the accused/appellant had committed the offence. The Investigating Officer in his deposition stated that he had received an FIR on 27.04.2015 on being lodged by Jomkem Longri that on 26.04.2015 his sister-in-law Thuhim Longri was brutally murdered by someone when she went for her bath and that the informant suspected that the accused/appellant had committed the offence. In course of the investigation, the Investigating Officer along with the informant, the Gaonbura and some other villagers went to the place of occurrence at old Kamdu village and seized some physical evidence from the place of occurrence like comb, blade with suspected blood stain, one wrist watch etc and two number of stones that were suspected to be the weapon of offence and accordingly prepared a seizure memo. 11. PW-9 Mrs. J.M Tayeng was the Circle Officer before whom the accused had made the confessional statement, in cross examination, stated that she had given a reflection time of about 30 minutes to the accused before recording his confessional statement. PW-9 also stated that during the time given to accused for reflection, the accused and the police were together in the corridor of her office. 12. Mr. Hage Lampu, learned Amicus Curiae for the accused/ appellant raises a contention that the conviction had been based also upon the confessional statement of the accused/appellant, but there is also a retraction by the accused in his statement u/s 313 Cr.P.C and therefore, the confessional statement alone cannot be the basis for such conviction. According to the learned Amicus Curiae, as there is also a retraction, the contents of the confessional statement would also have to be corroborated with other evidence for the purpose and there is no such evidence for such corroborations. The learned Amicus Curiae also points out that as per the evidence of PW-9, the Circle Officer before whom the confessional statement was made, a reflection time of only 30 minutes was given and further the accused was in the custody of the police authorities even during the time for retraction and as such, the confessional statement is unacceptable under the law. 13. Mr. 13. Mr. J Tsering, learned Public Prosecutor for the State of Arunachal Pradesh on the contrary submits that the entire evidence on record when taken as a whole can lead to a conclusion that it is the accused/appellant alone who had committed the offence of causing the death to the deceased and the sequence of events relied upon by the learned Public Prosecutor is that the accused/appellant had an affair because of which there was a quarrel between the accused and the deceased. The accused/appellant was a person, who was also residing in the house of the PW-2 where he had an affair with the daughter of the PW-1, but the deceased who is the sister in law of the PW-1 was interfering in such affair and therefore, the accused/appellant had caused her death. Further, the learned Public Prosecutor also relies upon the confessional statement and submits that even if it is a retracted confessional statement, there are other corroborating evidences and therefore, under the law, the confessional statement can be acted upon. 14. Ms. N Danggen, learned Amicus Curiae for the informant submits that there are circumstances other than the confessional statement that it is the accused/appellant alone who had committed the offence and the chain of events is so complete, so as to enable the Court to arrive at the conclusion that it is the accused/appellant alone who had committed the offence. According to the learned Amicus Curiae, the chain of events are complete as because the presence of the accused/appellant at the place of occurrence as per the evidence of PW-2, he had an affair with the daughter of PW-1, but it was the deceased who was interfering in such affair and therefore, there was a quarrel between the two and further there is also an injury report on the accused, which remains unexplained and can be related to the incident of causing death of the deceased and further, there is an extra judicial confession by the PW-6 the doctor who had treated the accused/appellant that he had committed the offence. 15. 15. As regards the contention that the confessional statement made by the accused/appellant before the PW-9 although retracted can be made to be the basis of a conviction against him, we have taken note of that as per the evidence of PW-9 a reflection time of 30 minutes was given to the accused/appellant and secondly during the 30 minutes of reflection time, the accused/appellant was in the custody of the police authorities. 16. The Supreme Court had laid down the proposition that a reflection time of less than three hours would be insufficient for an appropriate reflection although in another judgment it had been provided that a reasonable time for reflection would also be sufficient for the purpose. But at the same time, it is the established position of law that the accused is required to be kept at an isolated place for his reflection without there being any interference and influence by the police authorities during the time of reflection. 17. But in the instant case, it is the evidence of the PW-9 Circle officer before whom the confessional statement was made that the police authorities were present all along with the accused/appellant during the time of reflection. 18. Considering the said aspect as well as the time of 30 minutes given for reflection, we are of the view that the confessional statement of the accused made before the PW-9 under the law cannot be accepted to be the basis for a conviction against the accused/appellant and it has to be understood that the said confessional statement is unacceptable in law. 19. The PW-2 in his deposition stated that the accused/appellant had proceeded towards the Nallah for bath at about 3.00 p.m., whereas the evidence on record shows that the offence possibly could have taken place around 3.30 p.m. on the same day. Accordingly, a question is required to be examined as to whether the provisions of section 106 of the Evidence Act can be invoked in the present case, so as to require the accused/appellant to explain as to under what circumstance the deceased had died. Had it been a case that the accused/appellant and the deceased were seen together, definitely there may have been a requirement to invoke the provision of section 106 of the Evidence Act. Had it been a case that the accused/appellant and the deceased were seen together, definitely there may have been a requirement to invoke the provision of section 106 of the Evidence Act. But the evidence before us is that at 3.00 p.m., the accused was seen proceeding towards Giri Nallah on the day of the occurrence and he came back in the evening and had his dinner. But there is no material on record to give any indication as to what kind of a place the Giri Nallah was i.e. as to whether it was a small isolated area where if two persons had proceeded, both will be within the visual range of each other or it can also be a place which may be of a larger area. Further Pw-3 in his evidence has stated that on the evening of the date of occurrence, when he came back from his work place with a torch, upon reaching Giri Nallah, he had seen some blood stain on the stones and also noticed some marks of something being dragged towards the jungle. 20. If we take note of the evidence of PW-3 into account, we have to understand that the place where the alleged occurrence had taken place was a public place and it cannot be accepted that it was a small isolated place, where if two persons had proceeded both will be within the visual range of each other. 21. In the absence of further material, which may show that the accused/appellant and the deceased were at the same place at the time when the occurrence had taken place, it would be unsafe to invoke the provisions of Section 106 of the Evidence Act and require the accused/appellant to explain as to under what circumstance the deceased had died. 22. Ms. N Danggen, learned Amicus Curiae for the informant also relies upon the evidence of PW-6 the Doctor, who had treated the accused/appellant on the injuries on his fingers that there is an extra judicial confession before the doctor that the accused/ appellant had killed the deceased. 23. Although the credibility of the PW-6 cannot be doubted he being the doctor, but at the same time, an extra judicial confession otherwise would also have to be corroborated by some other evidence to make it to be the basis for a conviction. 23. Although the credibility of the PW-6 cannot be doubted he being the doctor, but at the same time, an extra judicial confession otherwise would also have to be corroborated by some other evidence to make it to be the basis for a conviction. Apart from the injury on the index finger and middle finger of the accused to which he was under treatment by the PW-6, no further corroborating evidence can be found to support the purported the extra judicial confession made by the accused before the PW-6 Doctor. 24. Ms. N Danggen, learned Amicus Curiae also raises an issue that the accused/appellant in his statement u/s 313 Cr.P.C had given certain vague reply and was not specific in his denial that he is not involved in the act of causing death to the deceased. 25. The said contention otherwise would have been an acceptable contention had section 106 of Evidence Act would also have been applicable against the accused/appellant under which circumstances a presumption can be drawn against the accused/appellant if his answers u/s 313 Cr.P.C are vague and do not carry a definite denial. But as already concluded, in the instant case, the provision of Section 106 of the Evidence Act would be inapplicable and accordingly merely because the answers by the accused/appellant in his statement u/s 313 Cr.P.C can be construed to be a vague statement, the same by itself cannot draw a presumption against the accused/appellant that it is he alone who had committed the offence. 26. In the aforesaid circumstance, we do not find any material on record to uphold the conviction of the accused/appellant in the charge of committing culpable homicide amounting to murder by causing the death of Thuhim Longri at Old Khamdu village under Jairampur police station and accordingly, the accused/appellant is acquitted of the offence u/s 302 IPC. Further, we also do not find any material on record that the accused had caused the disappearance of any evidence so as to sustain the allegation of an offence u/s 201 IPC. Accordingly, the accused/appellant stands acquitted also of the said charge. 27. In view of the aforesaid conclusions arrived at, the judgment of the learned Sessions Judge, East Session Division, Tezu dated 27.11.2017 in Sessions Case No. 74/CLG/2015 stands set aside and the accused/appellant is set at liberty forthwith. 28. We appreciate the valuable services rendered by Mr. Accordingly, the accused/appellant stands acquitted also of the said charge. 27. In view of the aforesaid conclusions arrived at, the judgment of the learned Sessions Judge, East Session Division, Tezu dated 27.11.2017 in Sessions Case No. 74/CLG/2015 stands set aside and the accused/appellant is set at liberty forthwith. 28. We appreciate the valuable services rendered by Mr. Hage Lampu, learned Amicus Curiae for the accused/appellant as well as Ms. Nikita Danggen, learned Amicus Curiae for the informant. As stated, the Registry to fix the fees of the learned Amicus Curiae and accordingly pay the same to both the learned Amicus Curiae. 29. Send back the LCR immediately.