High Court · 2012

On receipt of the FIR, Panery police registered a case(Paneri PS Case No 3. . 26 of 1997, under section 302 IPC), initiated an investigation, made an inques t on the dead body of the deceased, forwarded the dead body to Mangaldai Civil H ospital for a post-mortem. The I.O. also arrested the accused and seized one woo den-butted axe as shown by the accused and got recorded confessional statement o f the accused as well as of the witnesses under section 164 CrPC and on completi on of investigation filed charge-sheet against the accused under section 302 IPC .

4. On committal of the case to the Court of Sessions, the learned Sessions Judge framed a formal charge against the accused under section 302 IPC. On readi ng and explaining the charge the accused pleaded not guilty and claimed to be tr ied.

5. During the course of trial, prosecution examined as many as 13 witnesses . The learned Sessions Judge recorded the statement of the accused in terms of p rovision of Section 313 CrPC. The stand of the accused, who declined to give evi dence in defence, is of total denial. The accused retracted his confessional sta tement recorded under Section 164 CrPC during his examination under Section 313 CrPC. On conclusion of hearings, the learned Sessions Judge convicted and senten ced the accused as aforesaid, giving rise to this appeal from jail.

6. We have heard MR.A .Bora, learned Amicus Curiae appearing on behalf of the a ccused appellant and Mr. D. Das, learned Addl. Public Prosecutor, Assam. 7. Before appreciating the contentions raised on behalf of the appel lant by his counsel, it is useful to note down the conspectus under which the of fence was committed. 8. Sri Salu Orrang(PW1) deposed that 7-8 years back at around 11 AM, his pa ternal aunt Bighini Orrang, who had been residing with them, had gone to the ’Ba munjuli Bazaar’ carrying with her a bag. However, she did not return home, and o n the following day, PW-1 was informed by the labourers of the tea estate that t he dead body of his aunt Bighini was lying near section 24 of the tea estate. O n learning about the death of his aunt, he rushed to the place and found her dea d body lying on the ground, and then he filed an FIR with the Panery police, who , on receipt of ejahar, came to the place of occurrence to carry out the investi gation. According to PW-1 the post mortem examination of the dead body was carri ed out at Mangaldai Civil Hospital. From the evidence of PW1, it appears that he was not an eyewitness to th 9. e occurrence. In a similar tune, PW2, 3, 4, 7 and 9 had unequivocally stated tha t they saw the injury-borne dead body of Bighini Orrang lying by the side of the road at the Section 24, as also Md Kadir Ali(PW11), who went to the estate alon g with sub-inspector Bhubeneswar Bhuyan. Sub-inspector Manjur Ahmed, PW13, deposed that on 10.3.1997, sub-inspect 10. or Bhubeneswar Bhuyan(since deceased) rushed to the Orrangajuli tea estate, perf ormed inquest on the dead body and sent the same to Mangaldai Civil Hospital for post-mortem examination.

11. From the evidence of the aforesaid witnesses, it appears that on 10.3.97 the injury-borne dead body of Bighini Orrang, was found lying at the tea estate , near the Section 24. The inquest report Ext-13 proved by PW-13 clearly depicts that wide injuries over left eye of the dead body and other three injuries were caused by sharp weapons.

12. Dr Dulal Kalita(PW12), who performed post-mortem on the dead body, found the following injuries on the deceased: (cid:28)(i) Two stab injuries behind left ear - one was 1 ‰ (cid:29)(wide) X 4 (cid:29)(deep) w ith fracture of skull bone, (ii) one stab injury over the forehead of size - 1 ‰ (cid:29)(wide) X 3 (cid:29)(deep) with fracture of skull, (iii) brain matter was exposed due to fracture of skull bone with blood clotting (cid:29).

13. In the opinion of the medical officer, injuries are anti-mortem in natur e and the deceased died due to haemorrhhage and shock resulting from such injuri es and those injuries were caused by sharp, heavy pointed instrument like spear etc.

14. The accused was first produced before the learned Magistrate(PW10) at 2. 30 PM on 7.4.1997 and the learned Magistrate cautioned him about the consequence of giving confessional statement and sent the accused to jail for reflection ti ll 8.4.97(10.30 AM). The accused was again produced on 8.4.97 at around 10.30 AM from jail and then PW-10 again cautioned him and kept him in his chamber till 2 .45 PM for reflection, keeping him in the charge of his peon Paresh Hazarika ens uring that no policeman and other person would enter into his chamber during tha t period. Again at 2.45 PM PW-10 asked the accused about his intention to make c onfession to which he replied that he would give confessional statement. It is a lso seen that PW 10 also asked the accused that he may take help of advocate. Th ereafter, PW10 put the following questions to the accused to which he replied as follows: 1) Do you know, I am not police but magistrate? Reply - Yes, I know. 2) you do, is to do o your own will? Do you know that you are not bound to give confessional statement, what Reply:- Yes, I do understand it. 3) not be sent to police custody? Do you know that if you would not give confessional statement you would 4) dence against you? Do you know, if you give confessional statement, it would be used in evi Reply - Yes, I know. Whether someone tutored or threatened you to give confessional statement Reply - I do, I would confess. Why do you want to give confessional statement? 5) Reply - I did the wrong, so I am to confess. 6) ? Reply - No, I will confess on my own will. 7) say which is not true? Reply - Yes, I understand it. 8) Whether the police told you to give confessional statement? Do you know that here you are to disclose only the truth but should not Reply - No.

15. From the above question answers, it is clear that PW10 put all necessary questions to the accused to test the voluntariness and willingness to give conf essional statement and the accused is found to have given confessional statement voluntarily. From the materials on record we find that accused never complained of police torture before recording his statement. Thus, it is found that PW10 r ightly passed Ext.10(4) and 10(11) certificates that the accused voluntarily gav e his confessional statement.

16. PW10 further states that during recording the confessional state ment, the demeanour of the accused was normal and he also found no sign of polic e torture on his person, and the accused also did not complain of such thing; an d hence, he signed Ext.10(11) certificate.

17. Thus, it is clear that during recording of confessional statemen t PW10 found no sign of police torture neither on the person of the accused, nor the accused complained of such thing. Secondly, it is also seen that PW10 sent the accused to judicial custody before recording confessional statement and also assured him that he would not further be sent to police custody. Thirdly, he wa s given sufficient time for reflection during which no police would come in cont act with him. Therefore, the plea of accused under Section 313 CrPC that to esca pe from further police torture, during police custody he gave confessional state ment to the magistrate fabricating a false story, is itself a false plea and suc h argument of defence counsel has no force.

18. From above discussion, we find that the accused voluntarily gave confessional statement to PW10 and it is free from any inducement and threat. I t is seen that PW10 followed the procedure in recording the confessional stateme nt in proforma which is Ext. 10.

19. In confessional statement, the accused stated that immediately o ne month before 8/04/97, one evening Bighini Orang went to his residence at 6/7 p.m. and she took liquor in his residence and he also took liquor(Mad) and Bighi ni Orang started to disclose old things; and his father died five years ago, his sister died four years ago and his sister’s husband died three months ago and h ence he suspected that Bighini Orang had killed all those persons by applying bl ack magic and thinking that he inflicted three blows on the head of Bighini Orra ng with an axe, while there was none at home except them, and then he called on Rangta Orrang and both of them dragged the dead body to the garden and threw it over the road, and after 2/3 weeks he disclosed the matter to the co-villagers.

20. We have carefully gone through the forms, which were used by PW10 fo r recording the confessional statements of the accused. These forms, we find, contain not only the confessional statements of the accused, but also various questions, which were put by the Magistrate, at different stages, to them. As we ll as the cautions, which were applied by the Magistrate or cautions, which were given to the accused. What is, now, material to note is that while cross-examining PW10, th 21. e defence did not dispute the fact that accused was produced before him, as de posed by PW10, for recording the confessions. The accused was duly cautioned by P.W. 10 regarding the implications of making confessional statement and thereaft er the accused was remanded to judicial custody for reflection. The confessional statement of the accused was recorded on 08-04-1997after due compliance of the procedure prescribed. The defence also did not dispute the fact that they (acc used) was given sufficient time for reflection. What merely was suggested to PW1 0 was that he did not keep away the accused from police during the reflection, w hich was denied by P.W.10. The suggestion, so given, is wholly vague inasmuch as the defence did not put to PW10, as to when the accused was produced before him and when his confession was recorded. The defence also did not specifically d eny the evidence given by PW10 that the accused had been placed by him in the ch arge of his peon, during the period of reflection.

22. The suggestions, therefore, which the defence gave to PW10, but denied by PW10, to the effect that there were police personnel present in the ch amber of PW10, during recording of confessional statements, carry no value at al l.

23. The question, now, is whether the judicial confession of the accused-ap pellant, was true? How to ascertain if a voluntarily made judicial confession ca n be relied upon as true? In this regard, we may recall the decision, in Shankar ia v. State of Rajasthan (AIR 1978 SC 1248), wherein the Supreme Court observed thus: \If the first test is satisfied, the Court must, before acting upon the confessi on, reach the finding that what is stated therein is true and reliable. For judg ing the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid cannon of universal application. Even so, o ne broad method, which may be useful in most cases for evaluating a confession, may be indicated. The court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confes sion appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. \ (Emphasis is added)

24. In the present case, in order to determine if the judicial confe ssions, made by the present appellant is true or not true, let us, now, in the l ight of the law laid down, in Shankaria (supra), ascertain if the confessional s tatements, made by him receive necessary corroboration from the remaining eviden ce on record. From the evidence of PW13, it is also seen that on 6.4.97 the ac 25. cused after his arrest led, investigating officer Mr. Bhuyan, to his residence a nd produced the weapon of assault i.e. axe by taking it from hiding place and ac cordingly Mr Bhuyan seized it vide Ext.1 (seizure list) and Mat. Ext.1 is the sa id axe.

26. Though PW2 Butan Orrang, was declared hostile, but in his hostil e cross stated that on 6.4.97, the accused led the police to his house and produ ced the axe to him taking out the axe from hiding place in his presence. This st atement of PW2 would go in evidence. Thus, it is seen that PW2 supports the pros ecution story that on 6.4.97 accused led investigating officer, Mr Bhuyan to his residence and produced the axe to him taking out from hiding place. Thus, it is clearly proved that the accused on 6.4.97, led investigating officer, Mr Bhuyan to his residence and produced Mat. Ext.1(axe) to him taking it from hiding plac e and Mr Bhuyan seized the said axe(Mat Ext.1).

27. From the evidence of Medical Officer, it is seen that the injuri es sustained by the deceased caused by sharp weapon; and the accused also in con fessional statement states that he killed the deceased with an axe. So, the fact of leading to discovery of the weapon (Mat Ext.1), by which the accused killed the deceased, is a conduct incriminating accused in alleged crime.

28. Coupled with the above, the appellant has retracted the confessi on, at the end of trial only during his examination under Section 313 Cr.PC, w herein he stated that in order to get rid of assault by the police, he made his judicial confession; whereas, while the investigating officer (PW13) was examin ed, no such suggestion was offered to him nor the P,W.10, who is a responsible J udicial Officer, had found any injury on the person of the accused, nor was any assault or torture reported to P.W.10 by the accused.

29. The statement, therefore, made, under Section 313 Cr.PC, for the first time, by the present appellant to the effect that it was to avoid tor ture by the police that he had made his judicial confession carries no weight at all. Thus, the judicial confession, made by the appellant, has received 30. corroboration on material aspects by oral and medical evidence on record. From what have been discussed above, what clearly emerges is that the judicial confe ssion, made by accused-appellant was not only voluntary, but true as well.

31. Summing up the above discussion, we hold that there is no scope to interfere with the findings of the learned Sessions Judge. Accordingly, the appeal filed on behalf of the accused-appellant stands dismissed. Send back the LCR.

32. For the assistance rendered by learned amicus curiae, he be paid a sum of Rs. 4000(Rupees four thousand only) by the state.