Judgment · High Court · 2012

On the next morning, at about 5 a.m., when the deceased came out of his hiding place, the accused found him there and planted a blow with a knife on his abdomen for which the deceased sustained grievous wound. One Gopal Chettri verb ally gave the information regarding such incident to Shri Pabitra Kalita S.I. P olice, who was at that time was functioning as In-charge, Salona police outpost . 6. On receipt of such information, Shri Kalita made a G.D.entry vide G.D.en try No.288 dated 23.9.04 and immediately went to the place of occurrence where h e found Babul Ali lying injured on the road. Such a place was situated near Salo na Bazar. Having found the injured at such place, he sent him to Salona Public H ealth Centre. 7. A written FIR to that effect was lodged before him on 23.09.2004 in the evening which was forwarded to the officer in charge Samaguri Police station for registering a case and for taking action in accordance with law. Information re garding the incident was given to Md Abdul Rasid and Mrs. Zaheeda Khatum. While the former was the uncle of the deceased, the later was his mother. 8. Having received such information, PW 4 went to Salona and found Babul Al i in the house of a woman. Md Abdul Rasid came to know from the deceased that he was stabbed by the accused for deceased’s refusal to give him a cigarette. The deceased also made similar statement to his mother when she came to meet him. I n the meantime, the injured was referred to Civil Hospital, Nagaon. While he was so treated at Nagaon Civil Hospital, he died on 10th October, 2004. In due course an inquest was done on the body of the deceased. On 11.10. 9. 2004, the accused was arrested by police. While being in the custody of Police, the accused made a disclosure statement. On the basis of such statement and on b eing led by the accused, Police recovered the weapon of offence from the kitchen of one Shri Mahadev Lohar at Losailine.

#10. During the course of investigation, the I.O. got the confessional statem ent of the accused person recorded by Magistrate. He also examined the witnesses , collected the post mortem examination report did other needful and on completi on of investigation, he submitted charge sheet U/s. 302 IPC against the accused person and forwarded him to the Court to stand his trial there. 11. Since the offence under section 302 IPC is exclusively triable by the Co urt of Sessions, the Magistrate before whom the case was laid, committed the sam e the Court of Session for disposal in accordance with law. The learned Session Judge after hearing the parties framed charge under section 302 IPC against the accused person and charge, so framed, on being read over and explained to the ac cused person, he pleaded not guilty and claimed to be tried. 12. During trial, the prosecution has examined as many as 7 witnesses includ ing the Medical Officer as well as the I.O of the case. The statement of the acc used person was also recorded under section 313 Cr.P.C. The accused plea was of total denial. He, however, declined to adduce any evidence. On conclusion of tri al, the learned Trial Court held the accused guilty of offence U/s 302 IPC, conv icted him accordingly and sentenced him to punishment as aforesaid. It is that j udgment which has been challenged in this appeal. 13. Both the sides advanced arguments in support and against the judgment impugn ed. Instead of reproducing such argument, now, we propose to address to such arg uments at appropriate place at appropriate time. Suffice it say that while learn ed Amicus Curiae ,appearing for the accused appellant, has assailed the judgmen t, citing several alleged infirmities of quite serious nature therein which --- -according to the learned Amicus Curiae--- warrants the acquittal of the accused person on setting aside the judgment impugned. However, the learned PP appearin g for the State supports the same contending that judgment in question suffers f rom no infirmities, whatsoever and therefore, he urges this Court to affirm the same instead. We have given our anxious consideration to the arguments advanced by the parties herein having regard to the materials on record. 14. Such an exercise was done in order to know whether judgment needs to be overturned as prayed for by the learned Amicus Curiae appearing on behalf of th e accused/appellant. However, before we could proceed further, we find it necess ary to consider the evidence on the record and testimonies of non-official witne sses are first taken up for consideration. The main votaries of the prosecution case are Md. Abdul Rasid (PW 4), Mu 15. stt. Zaheda Khatun (PW 5). However, Shri Mahadev Lohar (PW 1) as well as Shri B hudaram (PW 2) are also said to be the witnesses who play a crucial role in shap ing the fate of prosecution in the case under consideration. Therefore, we propo se to consider the testimony of the PW 4 and PW 5 before scanning the other evid ence on record. 16. PW 4 is heard saying that one day, he came to know from Police that his nephew had been stabbed. Getting such information, he went to Salona and found t he injured at the house of a women. He found him in sound mental condition. When he enquired him as to how he got injured, his nephew told him that accused Md. Alauddin injured him with a knife, and that too, for not giving a cigarette, de manded by him. He also noticed a stitched wound on the abdomen of the deceased. 17. He, therefore, took his nephew to Nagaon Civil Hospital for treatment. M other of the deceased was also with him at that time. A few days thereafter, whi le he was still being treated at Nagaon Civil Hospital, the succumbed to the inj uries. On getting such information, he came to the hospital and found the body o f the deceased there. He also found that an inquest was done on the body of the deceased. In his cross examination, PW 4 admitted that he was not present when t he occurrence took place. 18. PW 5, Mustt. Zaheda Khatun, a house wife, deposes that the deceased Bab ul Ali was her son and was about 25 years of age when he breathed his last. The occurrence took place at Salona. One day, she came to know from police that his son was injured by someone. Police also requested them to shift the injured to Nagaon Civil Hospital immediately for treatment. In the meantime, her son was br ought to Nagaon Civil Hospital. She came to Nagaon Civil Hospital and met him th ere. 19. When she enquired her son as to how he got injured, he told her that acc used Alauddin assaulted him for not giving him a cigarette. She also saw a wound on his belly. He survived for about 6/7 days after sustaining wound in the inci dent in question. On his death, an inquest as well as a postmortem examination w as done on his body at Nagaon Civil Hospital. In her cross examination, she admi tted that Police did not enquire her about the person who told her that the accu sed had inflicted wound on her son. 20. As stated above, the other two witnesses, on whom prosecution has placed enormous reliance, are Shri Mahadev Lohar (PW 1) and Shri Bodhram (PW 2), PW 1 in particular. Shri Mahadev Lohar, a Tea Garden labourer, deposes that the accu sed is a butcher by profession. One day, Police took the accused to his house. On arriving at his house, the accused told them that he kept a dagger in the kit chen of his house. Thereafter, on being shown by the accused, the Police recover ed a dagger from his kitchen which was seized on the strength of seizure list (E xt.1). In his cross examination, he has stated that the knife which was recover ed from his kitchen did not belong to him. 21. PW 2 Shri Budhram, also a labourer, deposes that one day police took the accused Alauddin to the residence of Mahadev Lohar. Having arrived at the resi dence of Mahadev, the accused went to his kitchen and brought out a dagger there -from. In his cross examination, he is found saying that a seizure list was prep ared in connection with seizure of such dagger and he, as being a witness thereo f, put his thumb impression on such seizure list. 22. This bring us to the evidence rendered by official witnesses who are Dr. Sayed Makinur Rahman(PW 3), Shri Sarada Kr. Saharia (PW 6) and Shri Pabitra Kal ita (PW 7). In order to appreciate his evidence well, we propose to consider the testimony of Shri Saradha Kumar Saharia (PW 6) while discussing the prosecution case based on confessional statement.

#23. Dr. Sayed Makinur Rahman, PW 6, another official witness, in his evidenc e, deposes that on 11.10.04, he conducted post mortem examination on the body of one Babul Islam, aged about 26 years on being identified by Police personnel. H is findings are as follows: (cid:28)A male dead body of average built, Rigor mortis developed and present in legs p ortions only. Blood stained discharged from mouth and nostrils. One penetrating incised wound detected over the upper anterior abdominal wall of the left side measuring 2 ‰ lateral from the midline just below the costal marg in. Size of the wound was 1 ‰ (cid:29) x ‰ Depth upto the abdominal cavity. The margins were clean cut and the edges were inverted. On examination of Thorax I found that all organs were healthy. On examination of the abdomen, I found that peritoneum was congested and blood c lot was present. Stomach and its contents were congested and undigested food par ticles were present. Small intestine was congested and undigested food particles were present. Large intest6ine and its contents facial matter was seen. On examination of cranium and spinal canal, I found that all organs were healthy . Clean cut injury was detected over the upper surface of spleen measuring 1 ‰ (cid:29) x ‰ (cid:29) x 1 ‰ (cid:29). Blood clot was present. All other organs were healthy. In his cross examination, he has clarified that wound on the body of dec The injuries were ante mortem in nature. The cause of death, in my opinion, was due to shock and haemorrhage as a result of the injuries sustained by the deceas ed. Ext.2 is the P.M. report and Ext.2(1) is my signature. Ext. 2(2) is the sign ature of the joint director (cid:29). 24. eased may be caused by a long sharp edged weapon. 25. So situated, let us consider the evidence, rendered by Investigating Off icer (PW 7). According to him, on 12.10.2004, he was functioning as in charge of Salona Police outpost. On that day at about 7 a.m. one Shri Gopal Chhetri verb ally informed him that accused Md. Alauddin inflicted a dagger blow on Babul Ali . Being injured, Babul Ali dropped to the ground and had been lying there at th e place of occurrence till the time of such reporting. 26. After getting such information, he made an entry in the General Diary, v ide G.D. entry No. 288 dated 23.09.2004 and rushed to the place of occurrence wh ich is situated near Salona Bazaar. Arriving there, he found the deceased lying on the road in an injured condition. He sent the injured to Salona PHC for treat ment. At about 6 p.m. on that evening, he got a written FIR from Babul Ali ,sinc e deceased, which he forwarded to the O.C. Samaguri Police station for registeri ng a case and for doing needful in accordance with law. 27. In due course, Officer-in-charge, Samaguri Police Station registered a c ase and he was formally asked to conduct the investigation. During the course of investigation, he recorded the statement of the witnesses, prepared a sketch ma p of the place of occurrence. In the meantime, the injured was referred to Nagao n Civil Hospital for better treatment. On 10.10.2004, the deceased breathed his last while he was still under treatment at hospital. On his death, he held an i nquest on the dead body and got an inquest thereon done by Executive Magistrate too. Doing all those, he sent the dead body to the Hospital for post-mortem e 28. xamination. In the course of investigation i.e., on 11.10.2004, he arrested the accused person. While he was in the custody, he made a statement in the nature o f statement under Section 27 of the Evidence Act on the basis of which, he recov ered a dagger from the house of Shri Mahadev Lohar of Losailine. 29. During the course of investigation, he got the confessional statement of the accused recorded by a Magistrate. On completing the investigation, he submi tted charge sheet under Section 302 IPC against the accused person. In his cross examination, he is heard saying that when he met Babul Ali on 23.09.2004, he wa s alive, that sketch map, he prepared, was not sent along with the charge sheet and that seized dagger was not sent to Forensic Science Laboratory for examinati on and report. 30. Now, let us see how far above evidence makes out the charge brought agai nst the accused person. Here, it needs to be stated that the Doctor who conducte d the autopsy on the body of deceased opined that the deceased died a homicidal death and death was occasioned by an wound caused by weapon with sharp edge. Th is aspect of the prosecution case was not denied by the defence. However, claim of the prosecution that the accused was the architect of the crime in question w as put to serious challenge. 31. But then, the prosecution in order to bring its claim to its logical con clusion heavily relies on two sets of circumstantial evidence-since--none of the witnesses, examined here, saw the accused actually hitting and injuring the dec eased on the day in question. Circumstances aforesaid are (1) the statement, in the nature of dying declaration and (2) the confessional statement which the acc used reportedly made before the Magistrate during the course of investigation. Here, it is worth noting that the prosecution has also relied on some ot 32. her circumstances as well to corroborate the main circumstances. One of such cir cumstances of corroborative nature is said to be the seizure of weapon of offenc e from a place where it was concealed, and that too, on being led and on being s hown by the accused person. 33. Since such circumstances of corroborative nature seem to have huge impli cations on both the prime circumstances, aforesaid, so we propose to examine the evidence on record to see if such circumstances of corroborative nature stand e stablished in view of material on record and for this purpose, we find it necess ary to consider the evidence rendered by some of the PWs--- PW 7 (the I.O.) in p articular, keeping the relevant provisions of law in view. 34. It is a settled law that a statement cannot be upgraded to the status of statement, as contemplated in Section 27 of Evidence Act unless it fulfills cer tain conditions so stated in Section aforesaid itself. They are: (i). A fact mus t be discovered (ii) Such discovery of fact must be in consequence of some infor mation received from the accused person, (iii) The person giving information mus t be the accused of an offence (iv) He must be in the custody of Police and (v) Discovery of fact must be in consequence of information, received from an accus ed in custody. 35. Now, let us see how far above condition stands satisfied in our case und er consideration. In his evidence, PW 7 has stated that while the accused was in custody, he made a statement regarding the place where the accused concealed th e weapon, used in committing the crime and on the basis of such statement, he re covered a dagger from the house of one Shri Mahadev Lohar on being led and on b eing shown by the accused person. The statement, so made by the accused, was red uced to writing and same was proved as Ext. X. 36. adict Ext.X which reads as under:- But when we peruse the Ext. X, we have found that Ext. X, in fact, contr (cid:28)The dagger was concealed in the house of Mahadev Lohar of Losailine and I recov ered the dagger from the kitchen of Mahadev Lohar and I handed over the same to the police (cid:29). (emphasis supplied by us).

#37. A bare perusal of above statement unmistakably demonstrates that the kni fe was recovered first and thereafter the accused had made the statement under c onsideration. Such a revelation not only belies the claim of PW 7 that he recove red the dagger on the basis of the disclosure statements made by the accused but it also demonstrates that Ext. X or for that matter evidence, tendered by the P W 7 on this count is not a statement as contemplated U/s 27 of the Evidence Act. Being so, we are to hold that prosecution could not establish that dagger was recovered on the basis of disclosure statement, made by the accused while in pol ice custody. 38. But then, evidence rendered by PW 1, PW 2, PW 7 as well as the averments made in the seizure list (Ext.1) clearly show that during the course of investi gation, Police seized a dagger from the residence of one Shri Mahadev Lohar and the accused took it out of the kitchen of Shri Mahadev Lohar in presence of the witnesses. There is also indisputable evidence on record to show that such dagge r did not belong to Shri Mahadev Lohar . 39. One more matter deserves a discussion here and it relates to the admis sibility or otherwise of the FIR, lodged in Sumaguri P.S.Case No. 145/04. A disc ussion over such a matter becomes necessary in view of the fact that learned Tri al Court has opined that the FIR in the aforesaid was not admissible in view of bar imposed by Section 162 of the Cr.P.C. Now, the question is whether such a st and taken by the learned Trial Court is tenable in law. 40. In order to find an answer to the above query, we have very carefully pe rused the provision of law, particularly, Section 154 (1) Cr.PC having regard t o the materials on record. On a perusal of section 154 (1), Cr.P.C, it is found well apparent that an information to be a First Information Report (in short FIR ) must satisfy certain conditions which are specified in Section 154(1) itself.

#41. Those conditions are ; (i) it must be an information relating to commissio n of a cognizable offence,(ii) it must be given to an officer in-charge of a Pol ice Station (emphasis supplied by us) ,(iii) It must (if oral) be reduced to wri ting by the Officer -In-charge or under his direction by someone else and same m ust be read over to the informant, (iv) in case of oral information, when it is reduced to writing, it must be signed by informant, (v) the written information needs to be similarly signed by the informant and (vi) the substance thereof mu st be entered in a prescribed book kept in Police Station. 42. Coming back to our case, we have found that on receipt of verbal informa tion from one Gopal Chettri, Incharge, Salona Police Outpost, (P.W.7), entered t he contents thereof in the General Diary, and thereafter, he went to the place o f occurrence and took steps to send the injured to hospital for treatment. He re ceived a written ejahar from the victim on the same day, at about 6 p.m., which he forwarded to the O/c Samaguri P.S. for registering a case and for doing the n There is absolutely nothing on record to show th eedful in accordance with law. at any information other than written ejahar, so lodged by the injured, was ever sent to O/c Samaguri P.S. for necessary action.

#43. When one reads above revelations in the light of provisions of Section 154 (1) CrP.C., it would appear clear that the verbal information in respect of inci dent in question which Gopal Chetri had laid to PW 7 cannot be treated as an F IR as contemplated in Section 154(1) Cr.P.C. since on the evening in question, P W 7 did not function as a Officer-in-charge of the Police Station but only as an In-charge of a Police Out Post. Being so, we have no hesitation in holding tha t the Ext. 7 is the only legally admissible FIR in the case in question. 44. We have already found that prosecution set up two prime circumstances to prove the charge under consideration. They are (i) Dying declaration and (ii) C onfessional statement which the accused reportedly made before the Magistrate du ring the course of investigation. For the sake of convenience of discussion, fir st, we propose to consider the prosecution case based on dying declaration. Dying Declaration:

#45. We have already found that the prosecution has relied on the testimonie s of PW 4 and PW 5 to make out its claim on this court. On a very careful perus al of their evidence, we have found that both PW 4 and PW 5 rendered similar evi dence on the point of deceased’s making the statement in the nature of dying dec laration. There is absolutely nothing on record to show that the evidence so ren dered by PW 4 and PW 5 are not reliable for any reason whatsoever, Their evidenc e, therefore, clearly establishes that Babul Ali, the deceased, told them that o n the day in question, the accused administered him a dagger blow on his belly . 46. However, testimonies, rendered by PW 4 and PW 5 were challenged on two c ounts. They are: (i) Babul Ali survived for considerably long period after being injured by the a ccused on the day in question. But Police made no effort to get his statement re corded. This failure, on the part of police, casts a serious doubt on those clai ms, made by PW 4 and PW 5, more so, when they were found to be very close relati ves of the deceased and (ii) It has also been alleged that prosecution makes no effort to show that the deceased was in the control of his mind when he reportedly made dying declaratio n in question. 47. Coming to the first allegation above, we have found that it is true that though the deceased survived for a considerably long period, the Investigating Officer made no effort to get his statement, recorded by attending Doctors or by some other persons. But then, we must not be oblivious to the fact that for a p retty long period the PW 4 and PW 5 were in touch of the victim and they, there fore, got enormous opportunity to closely interact with him at the most crucial time of his life. 48. Again, one should not also lose sight of the fact that a son in distress would not only look to his relative for some kind of solace but would also shar e his misfortune with those relatives, his mother in particular. This is common human conduct and the Judicial Courts are well entitled to take notice of it. Wh en one reads those revelations together, he is bound to entertain a view that th e deceased must have told his mother/ uncle about the man who subjected him to m urderous assault on the day in question. 49. The claim of these two PWs regarding dying declaration is found truthful for another reason as well. There is absolutely no evidence on record to show t hat PWs aforesaid for one reason or other falsely implicated the accused person with the crime in question in order to screen the real culprit from the punishme nt. Such revelation only serves to show that said P.W.s are truthful which in t urn shows that the deceased did make a statement in the nature of dying declara tion to them. Thus, the first allegation, above, pales into oblivion without cau sing any harm to the prosecution case. 50. Coming to the second allegation, we have found that it is not true that there is no evidence on record to show the deceased was mentally sound when he m ade statements in question to PWs aforesaid. It is in the evidence of PW 4 that when he met the deceased at Shalona a day after the alleged incident, he found h im in sound mental condition. Such facts, coupled with the fact that despite he being injured on 23.09.2004, the deceased survived for a period close to 18 days , clearly testify to the fact that when the deceased made the statement under co nsideration, his mental faculty was absolutely normal. Being so, the second char ge too could cause no harm to the prosecution case. 51. We have already noticed that the Doctor found an incised wound on the ab domen of the deceased which ultimately abruptly extinguished his life. Evidence of the Doctor totally corroborates PW 4 and PW 5 as far as number of the wound, nature thereof and the weapon, used in inflicting are concerned. Such corroborat ive evidence therefore makes the dying declaration in question totally truthful. 52. We have already found that the deceased lodged an FIR with the p olice on the evening of 23.12.2008. The FIR contains a statement implicating the accused with the crime under consideration. As the informant, who himself was the victim of the incident in question, died few days after the alleged incident , in the facts and circumstances of the present case, the statement in the FIR b ecomes a dying declaration. 53 Thus, the FIR becomes a substantive piece of evidence and in tha t capacity; it places the prosecution case on more firm footing, particularly, w hen defence could not show any infirmity in the aforesaid FIR. Confession:

#54. Prosecution has also placed huge reliance on a confessio n which the accused reportedly made before the Magistrate during the course of i nvestigation. In this context, it may be mentioned that the accused in his exami nation under Section 313 Cr.P.C. has stated that he made confession in question before the Magistrate during the course of investigation on being compelled by t he Police. 55. That being so, we are to see whether the accused made confession under co nsideration on being compelled by Police or whether he made it voluntarily a nd if so, whether it is truthful as well in order to provide this case on more f oundation to the prosecution to stand on. However, before we could address the a bove queries, we need to know the views of the Courts on confession made by a pe rson arraigned as an accused in a case. 56. There are series of judgments from the Hon’ble Supreme Court holding tha t conviction of a person can be recorded on the sole basis of confessional state ment of the accused. Without multiplying any authority in this regard the observ ations of the their Lordships of the Apex Court made in the case of State of Raj asthan Vs. Raja Ram reported in (2003) 8 SCC 180 would suffice the purpose, whic h is reproduced below :- (cid:28)The law is clear that a confession cannot be used against an accused person unl ess the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surro unding the making of a confession appear to cast a doubt on the veracity or volu ntariness of the confession, the Court may refuse to act upon the confession, ev en if it is admissible in evidence. One important question, in regard to which t he Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by thems elves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is alwa ys a question of fact. All the factors and all the circumstances of the case, in cluding the important factors of the time given for reflection, scope of the acc used getting a feeling of threat, inducement or promise, must be considered befo re deciding whether the Court is satisfied that its opinion the impression cause d by the inducement, threat or promise, if any, has been fully removed. A free a nd voluntary confession is deserving of highest credit, because it is presumed t o flow from the highest sense of guilt. [See R. v. Warwickshall: (1783) Lesch 26 3)]. It is not to be conceived that a man would be induced to make a free and vo luntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessi ons of guilt, if clearly proved, are among the most effectual proofs in law. (cid:29) ( emphasis is ours)

#57. The law relating to confession having been found well documented, let us consider how far prosecution case so premised on confession stands established in view of materials on record. In this regard, prosecution heavily relies on th e oral testimony of the Magistrate (PW 6) as well as confessional statement alle gedly made by the accused person (Ext.6). 58. Shri Saradha Kumar Saharia (PW 6) is found saying that on 12.10.2004, he wa s working as Munsiff Magistrate, Koliabor. On that day, at about 1 p.m. the accu sed was produced before him to have his confessional statement recorded. On bein g so produced, the accused told him that he desired to make a confession. Accor dingly, he gave him necessary statutory warnings and gave him three hours time t o have reflection on the warnings, which he rendered to him and put him in the c ustody of his Peon. 59. It is in the evidence of the PW 6 that he kept the accused in such a way that he could not be noticed by any Police personnel from outside. He was again produced before him on the completion of time, granted to him for reflection. When the accused was produced before him second time, his attention was drawn to the statutory warnings once again and once again, he was told the implications of making a confession before the Magistrate. 60. Despite giving him those warnings and in spite of posting him with the i mplications of making a confession, the accused stuck to his decision to make a confession. On making those exercises, the Magistrate came to a conclusion that the accused desired to make a confession voluntarily. Being so satisfied, he pro ceeded to record the confession of accused person. Ext. 6 is the aforesaid conf essional statement and Ext. 6(1) to 6(4) are his signatures. 61. We have found absolutely nothing on record to disbelieve either oral test imony of PW 6 or for that matter, the averments made in Ext-6, PW 6 having been subjected to threadbare cross-examination notwithstanding. Therefore when one re ads the testimony rendered by PW 6 alongside the averments made in Ext-6, there cannot be any escape from the conclusion that on 12.10.2004, the accused did mak e a confession and he made such a confession voluntarily. 62. In this connection, it may be noted that there is nothing on record to s how that the accused was ever subjected to any inducement or torture of any kind , either mental or physical. This coupled with the fact that the accused repeate dly expressed his desire to make confession despite he being warned again and ag ain not to do so, speak loud and clear that the confession under consideration i s voluntary and that the accused made it deliberately as well. 63. We have already found that the accused admitted to have inflicted a woun d on the belly of the victim with a knife. Such a confession draws unfettered su pport from the evidence of Doctor (PW 3) as far as number of the wound, site the reof on the body of the deceased as well as nature of such wound are concerned s ince Doctor too found a wound on the belly of the deceased which was caused by sharp edged weapon. The evidence of Doctor, therefore, lends huge credibility to the confession under consideration on some very materials points.

#64. It is also on record that Police recovered a dagger from the house of Sh ri Mahadev Lohar and that too, in presence of the accused person. The seizure of the dao from the house of Shri Mahadev Lohar, in the facts and circumstances o f present case, raises a strong presumption that the dagger, so recovered, was t he weapon , used in committing the crime under consideration and such a revelati on becomes are more and more evidence of confessional statement under considerat ion being truthful. 65. It is a settle proposition that in a case, based on circumstantial evide nce, the motive of the accused plays a crucial role and prosecution may find its case on firm footing if it could prove the motive of the accused in committing the crime. Case under consideration is too based on circumstantial evidence an d as such, motive, if it is proved, may greatly help the prosecution in establis hing the charge leveled against the accused person. Prosecution claims, here tha t in the present case, it has successfully established the motive of the accused in committing the crime in question.

#66. On perusal of the record, we have found that in their evidence PW 4 and PW 5 have deposed that the accused hit and injured the deceased on the fateful mor ning as the later refused to give him a cigarette previous day. Such claim--- wh ich remains totally unchallenged--- finds full support from averments made in th e FIR as well. That being so, we unhesitatingly come to the conclusion that pros ecution has successfully proves the motive of the accused in committing the crim e, he is charged with. On the proof of motive, prosecution finds one more seal o f approval to its claim that the accused is the author of the crime in question.

#67. It is worth noting here that the accused in his statement U/s 313 Cr.P.C. claims that he confessed his guilt on being forced by Police Officer. However, t he accused made no effort, whatsoever, to probabilise such a claim. Such a failu re on the part of the accused person to probabilise its plea serves to show that accused raised the aforesaid plea just to hoodwink the truth. More importantly, it also serves to show that the accused did make a confession which is voluntar y and which is truthful as well. 68. The learned Amicus Curiae, appearing for the accused, however, contends that the confessional statement, so recorded by the Magistrate is riddled with i llegalities of extremely serious nature. To substantiate such a claim, it is bei ng argued that the learned Magistrate has granted the accused only three hours t ime to have reflection on the warnings. Time, so given, was awfully inadequate, more so when the offence, alleged is as serious as murder. Learned Amicus Curiae , therefore, urges this Court not to place any reliance on the confessional stat ement aforesaid 69. We have given our thoughtful consideration to the above argument keeping in view the materials on record. It is true that only three hours time was give n to the accused person to have reflection on the warnings, rendered to him. In this connection, it may be stated that for some very valid reason, Law makers di d not prescribe any limit as far as time of reflection is concerned. Legislature , therefore, leave it to the judgment of Magistrate to determine such time in ac cordance with facts and circumstances of a particular case. But whatever may be the time, granted in a particular case, it must be reasonable.

#70. Coming back to our case, we have found that learned Magistrate had duly rendered all the warnings to the accused person and there after he kept him in t he custody of his Peon in his chamber in such a manner that Police did not have any opportunity to come into his contact. Evidence on record further reveals tha t the Magistrate kept on repeating the statutory warnings to the accused every t ime he was produced before him and every time, he was told of implications of ma king a confession before a Magistrate. But then, the accused chose to confess hi s guilt. 71. We have already found that learned Magistrate took all the precautions t o ensure that the accused make his confession voluntarily and without being infl uenced by any authority, whatsoever. Our foregoing discussion makes it more than clear and same needs no further reiteration here. In such a scenario, giving th ree hours time, in our considered opinion, appears to be quite reasonable, more so, when it is found that the length of police custody just before his productio n before the Magistrate was quite minimal. Our forgoing discussion has now established that the prosecution has suc 72. cessfully proved that the accused stabbed the deceased on the morning of 23rd Se ptember, 2004 near Salona Bazar for which he died at Nagaon Civil Hospital on 10 th October, 2004. The dying declaration as well as confessional statement made b y the accused makes such position vividly clear. 73. Now, the question is whether for inflicting the wound on the perso n of Babul Ali, since deceased, as aforesaid, the accused can be held guilty of offence under Section 302 IPC. 76A. In this connection, we may refer to the deci sion of Hon’ble Supreme Court of India in the case of Pulicheri A Nagaraju ali as Nagaraja Reddy Vs State of AP reported in (2006) 11 Supreme Court Cases 444. In the aforesaid judgement, Hon’ble Supreme Court held as follows: (cid:28)The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used: (ii) whether the weapon was carried by the accused or was picked up from the spot: (iii) whether the blow is aimed at a vital part of the body : (i v) the amount of force employed in causing injury (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight: (vi) whether th e incident occurs by chance or whether there was any premeditation ; (vii) wheth er there was any prior enmity or whether the deceased was a stranger : (viii) wh ether there was any grave and and sudden provocation, and if so, the cause for s uch provocation : (ix) whether it was in the heat of passion: (x) whether the pe rson inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner: (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is not exhaustive and there may be several othe r special circumstances with reference to individual cases which may throw light on the question of intention.

#74. Coming back to our case, we have found the prosecution has established t he accused had stabbed the deceased on 23rd September, 2004 and he did so as the deceased refused to give the accused a cigarette. But then, it is also found we ll evident that though the deceased sustained wound on 23rd Sep’2004, the deceas ed survived for a period close to three weeks. It is equally important to note t hat despite getting opportunity to inflict more wounds on the deceased on the mo rning aforesaid, the accused gave the former only one blow with knife.

#75. When all those factors are considered in their totality, it would appear clear that the accused caused the death of deceased, (1) not with the intention of causing his death or (2) not with the intention of causing such bodily inju ry as he knew to be likely to cause his death or (3) not with the intention of c ausing such bodily injury which is sufficient in ordinary course of nature to ca use his death of the deceased or (4) not with the knowledge that his act was so imminently dangerous that it must in all probability caused the death of aforesa id person. 76. However, materials on record unmistakably demonstrate that in inflicting the wound on the body of the deceased with a knife, the accused must have the kn owledge that by such act he was likely to cause the death of deceased. Being so , he is clearly guilty of offence of culpable homicide not amounting to murder r equiring this Court to hold the accused guilty of offence under Section 304 Part II of the IPC.

#77. Accordingly, the accused/appellant stands convicted under Section 304 Part II IPC and is sentenced to suffer imprisonment for seven years and also to pay a fine of Rs. 5,000/- in default RI for another six months. The Judgment impu gned accordingly stands modified to the extent stated above. 78. We appreciate the assistance rendered by the Mr S.C. Keyal, learned Amic us Curiae and direct that an amount of Rs.3500/- be paid to Mr S.C. Keyal, as hi s remuneration by the State Legal Services Authority. 79. 80. Return the LCR. In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in ap propriate cases. Therefore, for the sake of brevity and in the light of our disc ussions, made in Criminal Appeal No.93(J)/2005 (disposed on 22.12.2011), with re gard to the victim compensation as provided by Section 357(A) Cr.P.C., we make t he following directions:- a). As an interim measure an amount of Rs.50,000/- shall be deposited by the Sta te Government with the District Legal Services Authority of Nagaon District with in a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent(s), who suffered loss and injury as a result of death of the deceased and if such dependant(s) or legal representative(s) need any rehabilit ation. b). Upon such enquiry, if it is found that the dependent(s), if any, need rehabi litation, then the District Legal Service Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as m ay be prescribed by the scheme to be prepared by the State Government. c). It is made clear that if the District Legal Services Authority, after due en quiry, arrives at the findings that there is no dependent(s) or that the dependa nt(s) of the deceased/victim does not require any rehabilitation, then the Distr ict Legal Services Authority, shall refund the said amount of Rs.50,000/- withou t delay, in favour of the State Government. 81. Let a copy of this judgment and order be furnished to Mr Z Kamar, learne d Public Prosecutor and the Chief Secretary to the Govt. of Assam, for doing the needful.