High Court · 2012

3. Sri Pradip Kumar Bora (PW.7), Investigating Officer (I.O.), the then Off icer-in-Charge of Khoirabari Police Station, on receipt of the FIR (Ext-1), made an entry of the gist of the FIR in General Diary bearing No.126 dated 7.2.2002 and launched the investigation. The I.O. visited the place of occurrence, recor ded the statement of the witness under Section 161 CrPC, arrested the accused pe rsons, recovered the dead body of the deceased Tankeswar Kalita, as shown by bot h the accused, seized one old cap and a bamboo lathi from the place of occurrenc e. After preparation of a seizure list (Ext-2), the I.O. prepared inquest of the dead body and sent the dead body for post-mortem examination. On completion of the investigation the I.O. submitted the charge-sheet against both the accused persons alleging commission of offence under Section 302/201/34 IPC.

4. The case being exclusively triable by the Court of Sessions, was committ ed to the learned Sessions Court Darrang, Mangaldoi, for trial. Upon perusal of materials on record and having heard learned Counsel appearing for both sides, l earned Sessions Judge, Darrang, Mangaldoi framed formal charges under Section 30 2/201/34 IPC against both the accused persons. When the charges aforesaid were r ead over and explained to the accused persons, both of them pleaded not guilty a nd claimed to be tried.

5. During trial, prosecution examined as many as 8(eight) witnesses includi ng the Doctor and the Investigating Officer. On conclusion of the trial, the lea rned Sessions Judge examined the accused persons as per provision of Section 313 of CrPC. Both the accused persons denied the evidence on record and took the plea of total denial. In order to substantiate the plea of total denial, accused persons examined as many as 3(three) witnesses in their defence.

6. Learned counsel for the appellants submits that practically there is no evidence on record to hold the accused persons guilty of the offence alleged aga inst them. The learned Trial court has convicted the appellants only on the basi s of recovery of the items, on being led by the accused persons. Learned counsel for the appellants referring to the provision of Section 27 of the Evidence Act relating to discovery in consequence of the information received from the accus ed persons, submitted that the evidence so far collected in this regard failed t o inspire confidence, inasmuch as the signature of the accused persons has not b een obtained in the paper in which their statements were recorded, prior to lead ing to discovery and further, the evidence on record regarding discovery is not substantial to hold the accused persons guilty.

7. Mr. D. Das, learned Addl. Public Prosecutor, strenuously submitted that the prosecution has been able to establish the charges against the accused-appel lants, beyond all reasonable doubt, as such their conviction do not call for any interference by this Court. In order to appreciate the arguments advanced by learned counsel for bot 8. h the parties, we would like to extract here-in-below the core of the prosecutio n evidence. PW.8, Nani Gopal, Medical and Health officer No.1 at Mongoldoi Civil Hos 9. pital, who carried out the post mortem examination over the body of the deceased on 17.2.2002, found the following:- (cid:28)A decomposed, swallowed deadbody of a male about 45 years of age, Rigormotis pr esent. Foul smell from the body is present the whole body is severely swallowed and decomposed moderately. There are losses of skin here and there all over the body exposing the underlying tissues etc. No external would/injury or its sign c annot be ascertained due to the decomposition and disfiguration. The skull bone s are intact. Cranium and spinal canal- No sign of injury could be confirmed due to decomposition of the scalp. Skull and vertebrae are intact. Other parts of the cranium and spinal canal are healthy. Walls ribs and cartilages - Healthy. Pleurae-EDenotous. Right and left lung - No debris, girl, sand, gras present. Edenotous- No forth. Pericardium - Ednotous. Heart - Full of dark fluid. Walls, swollen. Peritonous - congested. Abdomen - Mouth, harynx and oesophagus - congested. Stomach and its contents - Preserved for chemical analysis. Small intestine and its contents - No muddy water, debris is found. Large intestines- Healthy. Liver, spleen, kidneys - Bladdar oranges of generation & & & &Health other organs h ealthy. More detailed description of injury or disease - The findings described above, whether antemortem or post-mortem could not be asc ertained due to decomposition of the body. The following viscera have been sent to Forensic Science Laboratory for chemical analysis at Gauhati - (i) Stomach and its contents. (ii) Part of liver (iii) The right kidney. (cid:29)

10. From the evidence of PW.8, it appears that there was no sign of injury o n the dead body and due to decomposition of the dead body, PW.8 could not ascert ain with certainty as to, whether the injuries indicated above were ante-mortem or post-mortem in nature. The viscera of the dead body were sent to Forensic Sci ence Laboratory, Kahilipara, for chemical examination. PW.8 further disclosed th at according to the report of the FSL (Ext-7), cause of death of Tankeswar Kalit a was due to asphyxia as a result of drowning. Although PW-8 in his deposition h as used the word throttling but in the original report (Ext-7), the word drownin g has been mentioned. Therefore, since the report of PW-8 was prepared in terms of FSL report, the word drowning as the case of death has to be accepted. Appare ntly, the cause of death appears to be due to drowning, therefore, it is require d to be ascertained from the evidence on record as to whether the act of drownin g of the deceased in the pond was homicidal in nature or otherwise.

11. The moot question, which arose for consideration is whether the accused persons were the authors of the crime or not, since there was no eye-witness to the occurrence. As a matter of fact, accused persons are presumed to be innocent unless and until such facts are proved by the prosecution against them, beyond all reasonable doubt. The burden of proving the guilt of the accused squarely re sts upon the prosecution and unless the said burden is discharged, the Court wil l not record a finding of guilt against the accused. It is, therefore, obligator y on the apart of the prosecution not only to have a fair investigation, but als o to prove it beyond all reasonable doubt.

12. In the present case, the prosecution case is mainly based on the eviden ce of PW.1, PW.2, PW.3, PW.5, PW.6 and Pw.7 coupled with the evidence leading to discovery and extra-judicial confessions made by the accused persons. In order to examine the aforesaid issues, it would be pertinent to examine the prosecuti on evidence regarding the facts leading to discovery and extra-judicial confessi on.

13. From the evidence of Girin Kalita (PW.2), it appears that PW.2 heard the deceased Tankeswar Kalita, shouting as (cid:28)marilo (cid:29), from the house of accused Gobi nda, on the date of occurrence i.e. on 26.1.2002 and when he peeped inside he sa w a dead body lying by the side of the kitchen. Very surprisingly, PW-2 did not disclose these facts either before the police or to the local people for a long period of time, without any reason. Though the attention of PW.2 was drawn, rega rding his omission to state the above facts before the I.O. during his examinati on under Section 161 CrPC, he denied it. However, the I.O. categorically stated that PW-2 did not tell him during interrogation under Section 161 CrPC that he had seen the dead body of the deceased near the fire place of the accused. The s tatement of PW-2 was recorded after a long lapse from the date of recovery of de ad body. Admittedly, the deceased was one of the brothers of accused Gobinda and when whereabouts of the deceased was not known, the accused had himself informe d the police about missing of his brother, long before the dead body was discove red.

14. PW.1, Jiten Kalita stated that on 17.2.2002, both the accused persons sh owed the dead body of Tankeswar in the water of a nearby pond by leading the pol ice up to the pond, wherefrom the dead body was recovered. Though Girin Kalita (PW.2) deposed that he saw both the accused persons 15. carrying the dead body in the midnight of 26.1.2002, but he did not say so befor e the I.O. PW.2, though denied the defence suggestion of omitting to mention th e above facts to the I.O., during his examination under Section 161 CrPC, but th e I.O., in his cross-examination, specifically stated that PW.2 did not mention before him the fact of seeing the dead body on the date of occurrence. PW-2 did not explain as to why he did not divulge such serious facts relating to the inc ident, for such a long period of time. The omission to mention the witnessing of the dead body of the deceased on the n ight of occurrence, in the kitchen of the accused is a vital piece of evidence. But, PW.2 did not have adequate explanation for such belated reaction and belat ed disclosure. There were few other villagers near his place of residence, but he did not divulge the face of witnessing of the dead body to anyone of them. O n top of it, PW.2, even did not inform about such fact to his family members. Fu rther there is no mention of the source of light if PW.2 had witnessed the happe nings from inside his house at the dead of night.

16. In view of the above contradictions in the statement of PW.2, we are con strained to observe that the evidence of PW.2 do not repose confidence to rely o n. Therefore, such belated reaction of a witness without explanation, made it difficult for us to fully rely on his sole testimony to hold the accused-appella nts guilty.

17. In cross-examination, PW-2 negating the prosecution story of discovery o f the dead body of the deceased at the instance of the accused persons stated th at the police searched the pond for two days to recover the dead body before tak ing the accused to the pond. According to PW.2, only on the second day, the dead body was recovered from the pond.

18. PW-3, Keshab Kalita, disclosed that Jiten Kalita (PW.1) was assaulted by the police and he was also scolded by the police during investigation. The FIR which was filed long after the incident was signed by PW.1, PW.2 and PW.3.

19. Keshab Kalita (PW.3) was also one of the witnesses of seizure list (Ext. 2) in which PW.7, I.O. seized the cap and half burnt bamboo from the pond, in pr esence of the witnesses including the village Headman Ghana Kanta Hazarika. PW. 7, the I.O stated in his deposition that during investigation, he came to learn that the cap belonged to the accused. PW.7 did not come forward to confirm as to who had identified the cap to be of the accused. PW.3 clearly admitted in his cross-examination that a case filed by the accused against him was pending in the Court of Assistant Judge, for trial. Therefore, t he evidence of PW.3 has to be scrutinized with due care and caution to rule out possibility of embellishment and embroidery, in view of the existing inimical re lationship.

20. PW.4, Ghana Kanta Hazarika, disclosed that it was accused Gobinda, who h ad informed him that his brother Tankeswar was found missing and the dead body o f Tankeswar was recovered from a pond which was lifted by both the accused perso ns. In his cross-examination, PW.4 categorically stated that the accused did not say anything before taking out the dead body from the pond.

21. From the evidence on record, we find that prosecution case is mainly bas ed on the recovery of the dead body of the deceased in the pond, on being shown by the accused persons. On the top of it, according to the evidence of I.O., he was taken to the pond by the villagers together with the accused persons to sea rch out the dead body. But the dead body could not be fished out on that day fro m the pond. Very surprisingly, no recovery statement, whatsoever was recorded by the Investigating Officer before the dead body of the deceased was recovered, o n being shown by the accused persons. The so-called extra-judicial confession wa s made by the accused persons in presence of the police. Therefore, we hold tha t such extrajudicial confession made in presence of the Investigating Officer, i s not admissible in evidence. From the above discussion, it appears that the dead body was recovered f 22. rom a pond by both the accused persons. There is no evidence to show as to who was amongst the accused persons that led the investigating team to recover the d ead body of the deceased from the pond. Neither the Investigating Officer clarif ied nor any of the witnesses specified about the accused, who took the lead to r ecover the dead body from the pond.

23. Fact remains that the condition necessary for brining the provisions of Section 27 of the Evidence Act into operation is the discovery of a relevant fac t in consequence of the information received from the persons accused of the off ence. In the instant case, the discovery of such fact from the information give n by the accused persons is not proved by discovery statement of the accused. Ac cording to PW.3 thousands of people were already present beside the bank of the pond, when the accused persons were taken near the pond to lift the dead body.

24. In 2009 (2) GLT 414 (RAJIV PHUKAN and ANR. --VS-- STATE OF ASSAM) dec ided by a Full Bench of this Court, it was held that in a case under Section 27 of the Evidence Act, it is not material as to whether the statement has been rec orded in the form of questions and answers or not. What is, however, necessary i s that the Court must know as to what exactly the accused had stated so as to en able the Court hold as to what statement of the accused had actually led to the discovery of the fact. It needs to be, however, pointed out that the discovery o f fact must be subsequent to the making of the disclosure statement. Where a dis closure statement is made subsequent to the discovery of a fact, the disclosure statement cannot be proved under Section 27, for, a disclosure statement, whethe r it amounts to confession or not, would be relevant only when the statement pre cedes the discovery of fact.

25. The Apex Court had, in no uncertain words, pointed out, in Mohd. Abdul H afiz (AIR 1983 SC 3671), that if evidence, otherwise confessional in character i s admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when, he is dealing with more than one accused what words were used by him so that the r ecovery pursuant to the information received may be connected to the person givi ng the information so as to provide incriminating evidence against that person.

26. In the present case neither the disclosure statement was recorded by the I.O. nor the I.O., as a witness could specifically indicate as to how the state ment was made, who amongst the two accused persons took the lead to discover the dead body. Further, as per the evidence of PW.2, the police fished out the pond for two days before recovery of the dead body. In Rajib Phukan vs- State of Assam (supra), it was observed that -

27. (cid:28)( 52 ) From the observations, so made, in Abdul Hafiz (supra), it becomes clear that though Section 27 does not make it mandatory to record the disclosure stat ement, the fact remains that when more than one accused is involved in a given c ase, the Investigating Officer who records the statement which leads to the disc overy of the fact must depose in the Court as to which accused person amongst th e accused persons facing the trial was the one who had made the statement first and had thereby led to the discovery of the fact. (cid:29)

28. In Bodhraj Vs. State of Jammu and Kashmir, reported in (2002) 8 SCC 45, the Court, dealing with this subject, observed that the statement which is admissib le under Section 27 is the one, which the information leading to the discovery. Thus, what is admissible being the information, the same has to prove and not th e opinion formed on it by the police officer. In other words, the exact informat ion given by the accused while in custody which led to the recovery of the artic les has to be proved. It is, therefore, necessary for the benefit of both the ac cused and the prosecution that information given should be recorded and proved a nd if not so recorded, the exact information must be adduced through evidence.

29. From the emphasized portion of the observations made above, in Bodhraj ( supra), it becomes clear that though the information (which the prosecution reli es upon to show that the accused gave the information, which led to the discover y of a fact), should be recorded and proved but if it is not so recorded the exa ct information must be adduced through evidence. However, in the instant case the I.O. (PW.7) neither recorded the disclo 30. sure statement of the accused persons before taking them for recovery of the dea d body, nor did he prove specifically as who was the accused who had initially v olunteered to take the led to discover the dead body of the deceased. On the to p of it, the accused persons in their statement under Section 313 CrPC, categori cally stated that they were asked by the police to take out the dead body, which were already in the pond. In the absence of the disclosure statement, it would be difficult to rely on the evidence of the I.O. regarding the discovery of the dead body by the accused, when the specific and exact information given by the accused is not proved by the I.O. In the circumstances, it would not be safe t o rely on the facts of discovery of the dead body at the instance of the accused persons. On the top of it, the witnesses, who were present at the time of disco very of the dead body only stated that both the accused persons were taken to th e pond for taking out the dead body.

31. In 2004 (3) GLT 396 (BAKUL BORA and ANR -VS-- STATE OF ASSAM), a Divis ion Bench of this Court held that when there are more than one accused persons g iving information leading to discovery and seizure of incriminating objects, the n failure of the prosecution to show as to who was the accused, whose statement had actually led to discovery of facts and recovery of incriminating articles he ld would be of no evidentiary value.

32. Very surprisingly, in the present case, the Doctor (PW.8), who carried o ut the post-mortem examination of the victim could not ascertain the cause of d eath. But in terms of the forensic report, endorsed by PW.8, the cause of death is due to drowning in the pond water. If the cause of death was due to drownin g in the water in the pond, in that case, the deceased must have drowned in the water or the accused must have taken and drowned live victim in the pond. More so, in the instant case, the prosecution could not even give an inkling of the m otive behind the crime. There are no eye witnesses to the occurrence in the instant case. It is 33. the settled law that when a case rests on circumstantial evidence, such evidence must satisfy three tests- (i) the circumstances from which an inference of guil t is sought to be drawn must be cogently and firmly established; (ii) those circ umstances should be of a definite tendency un-erringly pointing towards the guil t of the accused; (iii) the circumstances, taken cumulatively should form a chai n so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

34. In the present case, it appears from the evidence on record that the cir cumstantial evidence appearing against the accused persons is not sufficient to hold that within all human probability, the crime was committed by the accused p ersons and none else.

35. In our considered view, the prosecution side miserably failed to establish the charges under Section 302/201/34 I.P.C. against the accused-appellant above -named, beyond all reasonable doubt.

36. In view of the foregoing discussions, the conviction and sentence as rec orded by trial Court is liable to be set aside. We, therefore, set aside the con viction of both the appellants under Sections 302 and 201 IPC. The appeal stands allowed.

37. s they are required in any other case. The accused -appellants shall be released forthwith from the jail, unles

38. Before parting with the judgment, we would like to appreciate the valuab le assistance rendered by Mr. D. Talukdar, as Amicus Curiae, in arriving at the above decision. Mr. D. Talukdar, learned Amicus Curie shall be entitled to his professional fees of Rs.4000/-.

39. Send down the Lower Court’s records forthwith.