High Court · 2012

Station registered a case being Dispur PS Case No. 672/96 under Sections 148/149/448/302 IPC, investigated the case and on completion of investigation l aid charge-sheet against accused appellant Smt. Pari Rani Saikia Borah and Shri Biswanath Chowdhury showing the name of other accused Shri Suraj Chowdhury as ab sconder. The case was committed to the court of the Sessions Judge, Kamrup, Guwa hati, which was made over to the court of Addl. Ad hoc Sessions Judge(FTC No. 4) , Kamrup, Guwahati, for trial and disposal. Police failed to produce the two cha rge-sheeted accused persons and as a result the case was split up. On her appear ance before the court charge was framed against the appellant under Sections 302 /201 IPC which was read over and explained to her. She pleaded not guilty and cl aimed to be tried.

3. In order to bring home the aforesaid charges, the prosecution ex amined in all 10 witnesses including the I.O and M.O. The appellant was examined under Section 313 CrPC but she declined to adduce any evidence in her defence. She has taken the stand of complete denial of the charge. The learned trial cour t on appreciation of evidence on record and upon hearing the learned counsel for the parties handed down the order of conviction and sentence against the accuse d-appellant which is under challenge in the present appeal.

4. I have heard Mr. B. M. Choudhury, learned counsel assisted by Mr . N. Ahmed for the accused- appellant and Mr. Z. Kamar, learned P.P., Assam, fo r the respondent- State.

5. As per evidence on record there is no denial of the fact that th e deceased Arun Borah was the husband of the present appellant. They have been l iving in a flat at Hengrabari Housing Colony for several years. The deceased was serving as PRO in the ASCARD Bank. The appellant is a house wife. The alleged i ncident of murder of the appellant’s husband took place inside their house/flat in the evening at about 9.30 PM. There is no eye witness to the act of assault/k illing by the assailants. The learned trial court, as it appears from the impugn ed judgment and order, convicted the appellant based on circumstantial evidence.

6. The circumstantial evidence, on the basis of which the convictio n and sentence was awarded, reveal from the oral evidence of some independent wi tnesses who are mostly residents of the flats in the same building. PW 1, Shri Alok Bujarbaruah deposed that he has been living in the said housing complex for last 20 years and he knows both the accused-appellant and her deceased husband. The deceased Arun Borah was working in the ASCARD Bank and he had a talking term wit h him. He further stated that the deceased had three vehicles and two Hindi spea king drivers. At the time of occurrence he was at home and having dinner. While he was taking meal, he heard barking of dog and when he came out he met Sunindra Sarnakar who told him that some incident had taken place in the house of the ap pellant. While he was coming down to visit the house of the appellant, he saw on e of the drivers of the accused going out from appellant’s house but he found th e door of her house closed from inside. He followed the said driver for sometime to enquire from him about the incident but the said driver proceeded fast and d isappeared. Some persons/residents of the housing complex including one Shri Hem en Das, MLA and his wife Geeta Rani Das also came to the place of occurrence. Th ey found Arun Borah lying with serious injuries who had already expired. He, ho wever, saw the appellant sleeping on her bed and in the meantime, MLA Hemen Das informed the police. In cross examination this witness stated that he does not k now the full name of the driver whom he saw going down fast from the house of th e appellant, but he knew his surname as Chowdhury. He again stated in cross exam ination that before his death, the deceased Arun Borah told him that there was d isquiet as they had no issue and his wife indulged in illicit relation. The dece ased, however, did no disclose the name of the person with whom his wife had ill icit relation. Smti Kiron Bujarbaruah, wife of PW 1, was examined as PW 2. She c orroborated her husband’s evidence in regard to barking of dog, out cry in the h ouse of the accused-appellant and also their visit to the place of occurrence. S he also stated that she was one male person going out from the house of the ac cused. They found the door of the house of the accused bolted from inside. In he r cross examination she also clarified that the person who came out from the hou se of the accused was none but the driver of the deceased Arun Borah whose name she does not know. She also clarified that the door was opened by the appellant and nobody was seen present in the house at that time. She was pretending as if she was extremely stricken by grief and shock due to death of her husband.

7. One Shri Hemen Das, MLA at the relevant time, and his wife Geeta Rani Das, were examined as PW 3 and 4 respectively. They l ived in the 2nd f loor of the said housing complex. This couple also rushed to the house of the appellant. They have corrob orated the evidenced of PW 1 and PW 2. While the deceased was alive, he told PW 3 about domestic discord. This PW 3 told the trial court that a packet of blood stained clothes was recovered from the house of the accused. He also observed th at there was delay in opening the door while they knocked at the door. It was sp ecifically stated by PW 4 that it took 4/5 minutes for the appellant to open the door. She also stated that she noticed some blood stains on the finger of the l eft hand of the appellant. Both PW 3 and PW 4 also testified the barking of dog inside the appellant’s house at the time of alleged occurrence. PW 5, Sri Prasan ta Kumar Baruah is also a resident of the said housing complex. He was not prese nt at the time of occurrence. He was away to Goalpara and on return he came to k now about the incident. However, in his evidence he stated that the deceased and the appellant had occasional quarrel and there used to be hue and cry in their house. He also testified that while he visited the appellant’s house, the police seized some tablets and blood stained hawai chappal. PW 6, Ranjit Kalita is ano ther resident of the housing complex. He also visited the appellant’s house alon g with PW 1 to 5 and deposed in the similar corroborated manner.

8. PW 8, Shri Hari Prasad Das, claims to be the cousin of the decea sed, being son of his maternal uncle. In his evidence he stated that he was livi ng in the house of the deceased. According to him, frequent quarrels ensued betw een the deceased and the appellant. The appellant used to live in her own way an d used to move around desperately in vehicle. The couple had three vehicles and two drivers, namely Biswanath Chowdhury and Suraj Chowdhury. The appellant used to call the driver Biswanath Chowdhury and engaged in gossiping with him in her bedroom as soon as the deceased used to go to his office. Just few day prior to the incident the appellant went to Nagaon along with the deceased and the said d river Biswanath Chowdhury. Thereafter, the accused, along with him and dirver Bi swanath Chowdhury went to Shillong. On the way the deceased asked the driver to stop the vehicle and she went inside the jungle with the said driver asking him to remain sitted in the vehicle. After a long time they came out from the jungle with noticeable intimate pose and on another occasion the appellant purchased s andal at Ganeshguri for the said driver Biswanath Chowdhury. This witness also s tated that the appellant was planning to get married to the said driver. The app ellant hoped that they could maintain their lives from the income they would der ive from the said vehicles. Thereafter, this witness was sent to Dhemaji and the n to Jorhat and Titabor in search of employment. He was asked not to come back a nd live with the couple at Guwahati. Ultimately he went to native house of the d eceased Arun Borah at Lakhimpur. The dead body of deceased Arun Borah was taken to Lakhimpur and the appellant travelled in a separate vehicle. She had meal on her way at Monalisa hotel at Nagaon.

9. PW, 9, the I.O. of the case, was one Shri N.N. Medhi but he coul d not be examined as he expired before the trial commenced. However, the prosecu tion examined one witness Shri Swapan Kr. Dasgupta, O.C. of Dispur Police Statio n, who supervised the investigation of the case. As per his evidence, the said N .N. Medhi, during investigation, recorded the statements of witnesses and produc ed the appellant before the Magistrate for recording her confessional statement. The I.O. after completion of investigation submitted charge-sheet. In cross exa mination he also stated that a GD entry was made regarding the incident but it w as not sent to the court. PW 9 identified the signature of the I.O. appearing on the charge-sheet which was marked as Ext. 6. He also proved the signature of th e I.O. found on the seizure list.

10. It is noteworthy that the FIR was lodged by none other than the wife of the deceased, the present convict appellant. What is strikingly apparent from the FIR is that just after the two Bodo looking youths dressed in jeans pa nt left the appellant’s house, she came to the room where her husband was discus sing about loan matter with the said youths. The door of the room was kept open at the time of said discussion. The youths, as per statement in the ejahar, talk ed to her husband in a very gentle manner and her deceased husband agreed to sho w the list prepared by the bank. There was no indication that during investigati on the said boys became violent. She did not notice situation endangering the li fe of her husband. According to her, the boys for some reasons proceeded towards the kitchen where she was preparing meal; one was standing near the door and th e other holding her from behind for which she could not move. As they left the p lace, she came to the room and found her husband lying injured with pool of bloo d. At that moment situation was such that there was no occasion to close the doo r and bolt it from inside. At the same time, she cried for help bolting the door from inside. Why she did so is a great mystery. She opened the door only when P W 1, 2 3 and 4 came, knocked at and asked her to open the door and that too afte r 4/5 minutes. Why she took such a long time to open the door ? What was she doi ng inside the closed room where her husband was lying seriously injured ? It is a normal behavior/conduct of a person who is in urgent and extreme need for help from others to remove the dearest person like husband to hospital for treatment ? This unusual conduct of the appellant has remained unexplained. The appellant could not rebut and disprove the evidence adduced by the independent witnesses. On the fact of such situation and evidence on record, the court can not but to draw an inference of guilt against the accused. Secondly, PW 1, 2 and 4 have sta ted in their evidence that they saw a person going down fast from the house of t he appellant immediately after the occurrence. PW 1 even stated that the said pe rson was none but one of the drivers of the deceased whose surname is Chowdhury. PW 2, who came out along with her husband PW 1, on hearing the hue and cry, als o stated that one of the drivers of the accused was going down fast. Similarly, PW 4 also stated about a person moving down fast after the incident. From the ab ove evidence what clearly emerges is that the appellant was an eye witness to th e entire incident of assault and killing of her husband by the perpetrators insi de the house. She, in fact, knew the person(s) who killed her husband. She did n ot make hue and cry at the crucial moments when her husband was assaulted but sh e waited for sometime facilitating chance of escape for the perpetrators.

11. Thirdly, there was barking of dog at the time of occurrence and at least one of the drivers was present who moved out from the room and proceede d quickly in a suspicious manner. A private driver, in case he hears hue and cry , is supposed to come to the master’s house immediately to extend the possible h elp to the family members but in the present case instead of doing so, the drive r(s) fled the scene. The conduct of the drivers is quite unusual and it raises s uspicion on their innocence.

12. Fourthly, both the drivers of the deceased remained untraced sin ce the said incident of murder took place. They have absconded for ever and by t heir conduct they have shown their guilt and by their unusual conduct they prove d themselves as assailants. Fifthly, the appellant tried to shield the said drivers against 13. arrest by not mentioning their names in the FIR and describing them as Bodo look ing youths who came and met her husband in their residence. Except her version, there is no evidence that some Bodo looking youths visited her house on the date and time of occurrence.

14. The striking adverse circumstance is that the appellant filed th e FIR only on 1.8.1996 at about 10.10 AM although the occurrence took place on 31.7.1996 at about 9.45 PM. Why this delay of 12 hours in lodging the FIR ? The appellant has not explained the delay nor even attempted to explain it. Added t o it the appellant mentioned in the FIR that two Bodo looking youths wearing jea n pants visited her house without mentioning the presence of the drivers, althou gh at least one of them, was present in her house and seen going down fast. The way the appellant made the averments in the FIR clearly shows that she tried to conceal the real fact to give safeguard to her drivers, who have absconded witho ut facing the trial as stated earlier. From the above adverse circumstances, we have found from evidenc 15. e of PW 8 (cousin brother of the deceased) that he has been staying with the dec eased for at least a year and he came to know about the family affairs. He even knew about the illicit relationship of the appellant with the driver Biswanath C howdhury. He has disclosed in his evidence how the appellant called the accused driver for gossiping in her bedroom, outing, marketing and purchasing sandal et c for the said driver. In her statement u/s 313 CrPC the appellant stated that she does not know PW 8 and he never stayed with them. But it is interesting to n ote that the defence counsel during trial did not cross examine PW 8 on this poi nt except putting a suggestion which he denied firmly. The cogent and firm evide nce of PW 8 that he was staying in the house of the deceased for one year could not be demolished and the fact of staying of PW 8 in the house of the deceased s tood proved. Of course the evidence of PW 8 has not been corroborated by any pro secution witness. It gives rise to a question as to whether uncorroborated evide nce of PW 8 could be accepted as a piece of evidence for establishing or at lea st lending support to the fact of illicit relationship between the appellant and the driver Biswanath Chowdhury. The appellant has denied that she knew PW 8 but at the same time she has not denied that he was a cousin brother of her decease d husband. The purpose behind telling the court she did not know PW 8 is obvious because it is only PW 8 who knew about the illicit relationship of the appellan t with the driver Biswanath Chowdhury who has disclosed the same in his evidenc e and if his evidence is accepted the appellant would be held guilty and convict ed. An uncorroborated evidence on a particular alleged fact is not acceptable in a normal course but it cannot be discarded totally as valueless or totally irre levant. We have already noted the possible reasons of appellant’s denial to have been knowing PW 8. If it is taken as correct that PW 8 is the cousin of the dec eased, he is supposed to visit his family or stay occasionally with them, if not stayed continuously for one year before the death of the deceased. Occasional v isit of PW 8 may help him in knowing the illicit relationship of his appellant s ister-in-law with the driver. In his cross examination PW 8 firmly stated that t he driver Biswanath Chowdhury was working with the deceased for five years till the incident of murder took place. He also stated that he went to Dispur Police Station and identified the pair of sandal of Biswanath Chowdhury which was purch ased by the appellant for him. In cross examination defence did not suggest that PW 8 adduced false evidence against the appellant out of personal grudge. In fa ct the defence counsel made endeavour to establish a case of giving false eviden ce against her to wreak vengeance against her or for some other reasons to get h er punished. PW 8 is found to be a natural reliable witness although his eviden ce was not corroborated by other witness. As against the evidence of PW 8 it is found that the appellant gave different versions at different stages of the case . As an example, in the FIR the appellant stated that she was preparing dinner i n her kitchen at the time of occurrence and her husband engaged in conversation with six unknown persons, two of them being Bodo looking youths, entered her kit chen and one of them kept standing at the door of the kitchen while the other he ld her. According to her, as stated in the FIR, the visiting persons were talkin g to the husband very politely and they were discussing about the loan sanction list prepared by the Board of the ASCARD Bank. After a moment, the visiting pers ons went out and she found her husband lying with pool of blood. Whereas in her statement under Section 313 CrPC the appellant stated that at the time of occurr ence she was in her bedroom and some tribal facet boys came and started altercat ion with her husband. Then she came out from her bedroom and the said boys caugh t her but she could not say what happened to her husband. From the above, there is no doubt that the appellant initially stated one thing in her written FIR an d a complete different thing in her statement recorded under Section 313 CrPC.

16. The appellant made confessional statement before a Magistrate, P W 7. The said PW proved the confessional statement recorded by him which was mar ked as Ext. 3 but the appellant has retracted the same. The point for our consid eration is the value of the retracted confession. In the normal course of things a retracted confession has no evidentiary value but such retracted confession w ould carry evidentiary value if evidence of other witnesses and circumstances la nd corroboration to the retracted confessional statement on material aspects/par ticulars. Here is a case where the accused-appellant herself is the informant. T he FIR is not to be treated as circumstantial evidence but it may be used to cor roborate the informant under Section 157 of the Evidence Act or to contradict hi m under Section 135 of the Act if the informant is called as witness and where t he accused himself/herself gives the first information, the fact of his giving t he information is admissible against him as evidence of his conduct u/s 8 of the Evidence Act. It has been held in A. Nagesia -VS- Bihar State ; reported in AIR 1966 SC 119 that if the information is non-confessional it is admissible again st the accused as an admission under Section 21 of the Evidence Act but a conf essional first information report by the accused to a police officer cannot be u sed against him/her in view of Section 25 of the Evidence Act. In the instant ca se the appellant is the first informant. Factual position is different in the pr esent case because the appellant’s statement in the FIR is non-confessional.

17. Admittedly the appellant has retracted her confessional statemen ts. Such retracted confessional statements do not go waste and it can be conside red with the circumstantial evidence on record in the light of the law laid down in Vinod Solanki -VS- Union of India, wherein it is laid down that (cid:28)mere retrac tion of a confession may not be sufficient to make the confessional statement ir relevant for the purpose of a proceeding in a criminal case or a quasi-criminal case but there can not be any doubt whatsoever that the court is obligated to ta ke into consideration the pros and cons of both the confession and retraction ma de by the accused. It is one thing to say that the retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is anot her thing to say that such a finding is arrived at only on the basis of such con fession although retracted at a later stage. (cid:29)

18. We have noted that the learned trial court put no reliance on th e retracted confessional statement of the appellant. The conviction has been awa rded putting reliance on oral evidence of witnesses, attending circumstantial ev idence and dubious conduct and inconsistent versions of the appellant at differe nt stages of the proceeding. They have reasonable bearing with her retracted con fessional statements, which have helped the learned trial court to give a findin g of guilt against her but as we find, the conviction is not founded solely on t he retracted confessional statement, rather based on strong adverse circumstance s. The said retracted confessional statements have been taken into consideration and used as a corroborative piece of evidence only. From this it is found that the retracted confessional statement of the accused has been used for a limited permissible purpose as indicated in Solanki’s case (supra) and the learned trial court committed no wrong or illegality rendering the conviction and sentence un sustainable in law.

19. In addition to above, we take note of the fact that appellant’s statement/allegation in the FIR is inconsistent with her statement recorded unde r Section 313 CrPC. To extract and quote relevant portion from FIR (cid:28)........ at about 9.45 PM a group of about 6 unidentified boys visited our residence at Heng rabari Housing Colony for a discussion regarding ASCARD Bank loan. They engaged in discussion with my husband. At that time I was cooking in the kitchen. I hear d the boys were talking to my husband politely ........ (cid:29)(As translated from Assa mese). But in her statement under Section 313 CrPC she stated thus - (cid:28) At the time of occurrence, myself and my husband were at home. I was in the be d room. My husband opened the door in response to calling bell. Some tribal face d boys quarrelled with my husband. When I came out some boys held me from behind . I can not say what they had done to my husband. I am innocent. (cid:28) (As tran slated from Assamese). The above inconsistency in the statements should be considered with the circumstantial evidence. If it is considered so, the statement of the a ppellant, under Section 313 CrPC, would be found to be inculpatory and incrimina ting in the face of evidence of PW 1, 2, 3 & 4 inasmuch as they have given evide nce corroborating each other that they had seen appellant’s driver leaving her h ouse and moving down fast just after the incident of murder, while the appellant was crying for help from her house bolting the door from inside. The appellant has retracted her confessional statement, but the circumstances or the circumsta ntial evidence remain against her which tend to corroborate her retracted versio n. Her retracted version may not have evidentiary value but it has strengthened the circumstantial evidence which are already against her.

20. The conduct of the appellant and the aforesaid circumstantial ev idence have projected her as the king-pin of the entire episode of murder of her own husband with the help of the absconding drivers. There is, in our opinion, no escape for the appellant from being held guilty of the charge framed against her. We have, at certain point, thought about showing leniency in the matter of awarding sentence as she is a woman and it was not ordinarily expected that she would approve of the extreme way of eliminating her husband, but we have change d our mind as she has been found the main actor in the act of commission of murd er of her own husband in a deliberately planned and meticulous manner and, for t he acts so done by her, she has expressed no remorse at any stage ; rather, she tried to cause disappearance of evidence of offence and providing false informa tion to screen herself and the absconding co-accused.

21. We do not find any fallacy in the reasonings and finding of guil t, arrived at by the learned trial Court, against the appellant nor any infirmit y in the order of conviction and sentence as handed down by the learned trial co urt on the appellant. No modification or alteration to the impugned conviction a nd sentence is called for and the same are liable to be upheld and affirmed. We accordingly uphold and affirm the order of conviction and sentence rendered vide impugned judgment and order dated 29.6.2006. The appeal fails and stands dismis sed.

22. Send down the LCR forthwith.