Brief facts of the case v. S tate of Madras 1958 Cri LJ 238 which lays down: (cid:28)The & Ors.

Brief facts of the case, which gave rise to this appeal, are as On 9.12.01, one Gobin Rajowar filed an FIR stating that at about 6:00 AM his father, who had gone to see their paddy field at Chiram Miri Gaon, near Jagdowar Tinali, under Teok Police Station was severely injured by the accu sed persons on head, by means of axe. As a result of the injury sustained, the v ictim succumbed to death, in the hospital on 21.12.01. Police registered Teok PS Case No.204/01, u/s 326/34 IPC and lau nched investigation. After completion of the investigation, police submitted ch argesheet against the accused persons u/s 302/34 IPC showing Bishuram Bedia as absconder. However, subsequently accused Bishuram Bedia was produced in the Cou rt to face the trial. The case was committed to the Sessions Court for trial. During trial, learned Sessions Judge framed formal charges u/s 302/326/34 IPC against a ll the accused/appellants. On reading over and explaining the charges aforenote d, the accused persons pleaded not guilty and claimed to be tried. The prosecution examined as many as 12 witnesses to establish ch arge against the accused persons. On conclusion of the recording of the evidenc e of the prosecution witnesses, the statement of the accused/appellants under Se ction 313 CrPC was recorded. In their statements u/s 313 CrPC, the accused/appe llants pleaded not guilty. The accused/appellants did not come forward to adduc e defence evidence. On conclusion of the hearing, considering all the evidence on re cord, the learned Sessions Judge convicted and sentenced the accused/appellants as aforesaid, giving rise to this appeal.

#3. We have heard Mr. HK Baishya, learned counsel for the appellants and Mr. Z. Kamar, learned Public Prosecutor, Assam, for the State.

#4. Learned counsel for the appellants submitted that accused Budhra m made a confessional statement and took the responsibility of having committed the offence singularly, therefore, other accused/appellants could not have been convicted, for commission of offence alleged against them. Learned counsel furth er pointed out that there is no evidence of motive behind the crime and the gene sis of the offence is also not clear. It has further been pointed out that the cloth of the accused, which must have been smeared with blood was not seized by the Investigating Officer and the pictorial diagram of the scene of occurrence w as not submitted by the I/O in the case.

#5. In reply to the above contention, learned Public Prosecutor subm itted that apparently the land dispute between the parties is the motive behind the occurrence and though Budhram made the confessional statement, but the objec t behind the confession was to save other family members by taking the entire re sponsibility upon him.

#6. In order to appreciate the submissions advanced by the learned c ounsel for the accused/appellants as well as the State respondent it would be ap posite to depict herein below the core of the prosecution evidence:

#7. Before initiating the discussion of the prosecution evidence, we would like to dwell upon the confessional statement made by the accused Budhram Bedia. PW.11 Darak Ullah, Judicial Magistrate Ist Class, Jorhat recorded the c onfessional statement of the accused Budhram Bedia. On careful perusal of the c onfessional statement recorded by PW.11, it appears that the accused clearly sta ted that while he chased the deceased and 3 others, who allegedly damaged his ho use standing on the land in reference, they fled away from the place of occurren ce, except Purno Rajowar (deceased), who attempted to cut Budhram by means of a dao. Whereupon, accused Budhram assaulted deceased Purno Rajowar a number of times, by an axe; as a result of which the deceased fell down on the ground.

#8. PW.11 categorically stated in his deposition that accused B udhram was produced from jail in the Court by police personnel, who were not con nected with the investigation of the case. From the evidence of PW.11 it clearly appears that due warning and caution was given to the accused in terms of the p rovision of Section 164 CrPC, in due conformity to the procedure prescribed, f or recording the confessional statement. For the purpose of reflection, the acc used was kept in the custody of the office peon of PW.11, with a direction to produce before PW.11 after expiry of 2 hours. Even thereafter, when the accuse d Budhram was produced before PW.11, appellant Budhram was duly cautioned abo ut the implication of making a confessional statement, in terms of para-5 and 6 of the confessional statement form. Despite all these, accused Budhram wanted to make confession regarding his involvement in the commission of the offence alle ged. Brief cross-examination of PW.11 made by the defence counsel, could not el icit anything substantial in favour of the accused. 9. In order to be assured of the truth of confession, the Apex Cour t, in a series of decisions, has evolved a rule of prudence that the court shoul d look to corroboration from other evidence. However, there need not be corrobor ation in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts prove d by other evidence. In substance, the court should have assurance from all angl es that the retracted confession was, in fact, voluntary and it must have been t rue. 10. The law on the subject of retracted confession has been succinct ly laid down by a three-Judge Bench of the Apex Court in Subramania Goundan v. S tate of Madras 1958 Cri LJ 238 which lays down: (cid:28)The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true a nd voluntarily made. For the purpose of arriving at this conclusion the court ha s to take into consideration not only the reasons given for making the confessio n or retracting it but the attending facts and circumstances surrounding the sam e. It may be remarked that there can be no absolute rule that a retracted confes sion cannot be acted upon unless the same is corroborated materially. It was lai d down in certain cases one such being Kesava Pillai, In ILR LIII Mad 160 that i f the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without a ny corroboration. But the view taken by this Court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rul e of law, retracted confession cannot be made solely the basis of conviction unl ess the same is corroborated. One of the latest cases being Balbir Singh v. Stat e of Punjab , AIR 1957 SC 216 but it does not necessarily mean that each and eve ry circumstance mentioned in the confession regarding the complicity of the accu sed must be separately and independently corroborated, nor is it essential that the corroboration must come from facts and circumstances discovered after the co nfession was made. It would be sufficient, in our opinion, that the general tren d of the confession is substantiated by some evidence which would tally with wha t is contained in the confession. (cid:29)

#11. In judging the voluntaries of confessional statement made by t he accused, justifying the commission of offence is of course relevant as becaus e, confessions are made only when the maker is prompted by his conscience to tel l the truth. Deliberate and conscious confessions of crime made by the offender are reliable piece of evidence. The confessions should be made with full knowled ge of the nature and consequences of the confession.

#12. Bhagwan Singh Vs. State of M.P. (2003) 3 SCC 21 the Hon’ble Ap ex Court held that The first precaution that a Judicial Magistrate is required t o take is to prevent forcible extraction of confession by the prosecuting agency [See State of U.P vs. Singhara Singh, AIR 1964 SC 358]. It has also held by thi s Court in the case of Shivappa vs. State of Karnataka [1995 (2) SCC 76] that th e provisions of Section 164 Cr.P.C must be complied with not only in form, but i n essence. Before proceeding to record the confessional statement, a searching e nquiry must be made from the accused as to the custody from which he was produce d and the treatment he had been receiving in such custody in order to ensure tha t there is no scope for doubt of any sort of extraneous influence proceeding fro m a source interested in the prosecution. Therefore, in our opinion, the confes sional statement of the accused Budhram is free from infirmity and it can be rel ied on in this case.

#13. Learned counsel for the appellants further pointed out that accu sed appellants are entitled to the benefit of right to private defence, which th ey exercised in order to resist the deceased and his companions, who had trespas sed into the land of the accused/ appellants and started damaging their house. H owever, such a plea of right to private defence is not discernable from the evid ence on record. Neither such exercise of right to private defence was ever postu lated by the accused/appellants during their examination under Section 313 CrPC . On the top of it the defence did not adduce any witness to support such a st and. More so, when the accused Budhram admitted to have assaulted and attacked the deceased by chasing him from behind, the deceased turning back in defence t o save him, would not entitled the accused to take the plea of right of private defence. The resistance by the victim of attack to save his soul cannot bestow a ny right of private defence to an aggressor in the attack.

#14. As many as 7 prosecution witnesses, PW.1,2,3,4,5,6 and 10 are ne ar relations of the accused/appellants. It would be pertinent to discuss the di screpancies pointed out by the defence counsel in the evidence of the relative w itnesses.

#15. PW.1, who is distantly related to the deceased, omitted to tell the I/O that the accused used two axes to attack the victim. According to PW.1, while he was coming with his children to the house of the PW.2, he heard some c ommotion near the place of occurrence. PW.1 stated to have seen accused Budhram and Geju assaulting Purno Rajwar by an axe and other two accused were assaultin g the deceased by giving kicks with legs. PW.2, Hemadhar Rajwar, is the brother of the deceased. Accordin 16. g to PW.2, at 6-00 AM, in the morning on the date of occurrence, PW.2 came out f rom his house and saw the deceased being assaulted by the accused/appellants by means of ’dao’ and ’axe’ etc. In his cross-examination, PW.2 stated that the la nd in which occurrence took place, belonged to him, where the accused Budhram st arted erecting a house forcibly. According to PW.2, accused persons used one ax e to assault the deceased. PW.3, Sunita Rajwar also stated to have seen the accused/appella 17. nts assaulting the deceased from a distance of 40 feet. According to PW.3, accu sed Budhram and Geju had ’dao’ in their hands.

#18. PW.4, Joleswari stated that on the date of occurrence her husban d had gone to the house of Hemadhar Rajwar, elder brother of the deceased. Afte r sometime PW.4 followed her husband. According to PW.4, accused/appellants ass aulted her husband near the door step of Hemadhar. PW.4 stated that accused- Bu dhram had assaulted on the head of her husband by an axe and when her husband fe ll down then also accused Geju had assaulted him by a ’dao’. According to PW.4, other accused caught hold of the deceased to allow Budhram to assault the victi m.

#19. PW.12, the Investigating Officer in his cross-examination confir med and proved that PW.4 did not state before him that she had seen the occurren ce. Rather, according to PW.12, PW.4 stated before him that she heard about the incident from others. On the top of it, admittedly PW.4 came with her son P W.8, to the place of occurrence, and PW.8 admittedly had reached the place of oc currence after the incident to find his father in an injured condition. Therefo re, PW.4, who had come with PW.8, could not have been present at the time of occ urrence. Therefore, in our considered view PW.4, is not an eyewitness to the oc currence and her evidence is nothing more thatn a bundle of embellishment. PW.6 (Manju Rajowar), the wife of PW.2, deposed that while she w 20. as sitting in her courtyard, she had seen the accused assaulting Purna Rajowar n ear her house by using axe and dao. According to PW.6, accused Budhram was hold ing axe and the others were holding dao, and it was Budhram, who had given an ax e blow on the head of Purna, while Geju cut him with a dao. PW.6, also stated b efore the I/O to the effect that Purna Rajowar had questioned the accused about the erection of the house and immediately thereafter, the accused attacked Purna . PW.3 (Sumita) being the daughter-in-law of PW.2 also stated to have seen the occurrence. According to her after hearing some commotion near the place of occu rrence, she saw the accused assaulting Purna with dao and axe. Of course, it is in her evidence that Budhram and Geju were having axes in their hands. Accord ing to PW.6, accused Budheswar had an axe and other accused had ’dao’ in their h ands. According to PW.6, accused Budhram had given first axe blow on the head o f the deceased. PW.8, Dr. B.C. Roy Medhi, who had carried out the post mortem ex

#21. amination of the deceased stated as follows: (cid:28)(a)One cut injury 8cm x 0.5 cm present on posterior part of frontal and anterio r part of parietal region of scalp in midline placed antero-posteriorly with sli ght oblique direction cutting the whole thickness of scalp, skull, meninger and part of underlying brain. Blood clots are firmly adherent in the wound. (b) Another cut injury on midline on posterior aspect of parietal region 4 cm x 0.5 cm x part of brain tissue deep. Blood clots adherent firmly in the wounds. Membrane: Cut injury as described. Extradural haematoma present underneath injury No.1 sub-dural haemorrhages present in both hemispheres Meninges are congested. Brain: Cut injury as described. Congested as a whole. Contusions present at pl aces on frontal and parietal lobes. Cause of death is coma as a result of the injuries sustained on the head. The i njuries described are ante mortem an caused by heavy sharp cutting weapon and ho micidal in nature. Ex.-3 is the Post Mortem Report Ext.3 (1) is my signature. Injuries defined in column No.(a) and (b) are sufficient in ordinary course to c ause death of the victim. (cid:29) To the Court

#22. From the evidence of the Medical witness, it appears that only t wo injuries were inflicted on the person of the deceased. Which means that the a ssault was not made by several persons with different type of weapons as stated by the witnesses. The medical evidence of P.W.8, do not corroborate the oral te stimony of the so called eye witnesses. The witnesses are all relatives of the deceased, therefore, in t 23. erms of the observation of the Hon’ble Supreme Court their evidence will bring h ome to be consistent and true. The Hon’ble Apex Court held that the evidence of a relative witness does not suffer from any infirmity as such, but the Courts re quire as a rule of prudence not as a rule of law that the evidence of such witne ss be scrutinized with little more care. 24. PW.1, Bikhari Rajwar and PW.6, Manju Rajwar have stated that decea sed Purno Rajwar was assaulted by accused Budhram Bedia and Geju Bedia. However , PW.4 , in our opinion could not have seen the occurrence according to her own admission, since she came together with PW.8, who reached the place of occurrenc e after the incident . The rest of the aforesaid witnesses, PW.2,3,5 and 10 sta ted the fact that all the accused persons were involved in assaulting and injuri ng Purno Rajwar, the deceased, but they did not corroborate each other as regard s the weapon of assault used by the respective accused. Each one had different version as regards the weapon of assault and the manner of assault. Looking into the evidence of the doctor, PW.8, who had conducted post-mortem examination, it appears that the assault was made by some heavy and sharp weapons, which can b e an ’axe’. More than that the injuries sustained by the deceased do not suppor t the story of assault by sharp weapon by all the accused/appellants.

#25. From the sequence of events leading to the occurrence in the fie ld vis-à-vis the confessional statement of the accused Budhram undoubtedly re veal that the house constructed by the accused/appellant Budhram was the bone o f contention, which led to the occurrence. The son of the deceased, PW.1, claim ed that the land in question belonged to them. The confessional statement mad e by the appellant Budhram proved beyond all reasonable doubt by the prosecution established that Purno Rajowar was fatally assaulted and injured on his head at the relevant time. Accused-appellant Budhram Rajowar confessed that it was he alone, who had given the blows on Purna Rajowar by an axe. 26. The eye witnesses, who are relatives of the deceased, have des perately deposed to rope in all the four accused/appellants in the occurrence. I t is evident from the evidence of relative witnesses, who despite failing to cor roborate with each other in respect of use of weapons of assault by the appellan t and the sequence of events religiously implicated all the appellants. But on careful perusal of their evidence, it appears that the witnesses desperately dep osed to rope in the entire family of the accused/appellant, for the commission o f offence alleged .

#27. Accused Budhram has made inculpatory confessional statement by d escribing the sequence of events. According to the appellant Budhram, he had ch ased the deceased to assault. The injury sustained by the deceased was caused w hile the deceased was standing. The type and numbers of injuries sustained by t he deceased rules out the possibility of assault upon the deceased by many pers ons. The confessional statement of the accused/appellant, though it was retracte d later on, has been proved by the prosecution to be free from legal loopholes. Therefore, the confessional statement of Budhram can be relied on.

#28. Therefore, taking into account the confessional statement of the ac cused Budhram and other evidence on record, we are of the considered view that i t was accused/Budhram, who had fatally assaulted the deceased single handedly. I nvolvement of other accused appellants in the commission of offence alleged coul d not be established by the prosecution beyond all reasonable doubt .

#29. In the result, the appeal is partly allowed. The conviction and sentence of accused / appellant Budhram passed by the learned trial Court is aff irmed. However, we acquit other accused/ appellants, namely, Geju Bedia, Jhumru Bedia and Bishuram Bedia from the charges under Section 302 IPC. Accused/appell ant, who have been acquitted be set at liberty forthwith, if not required in any other case.

#30. nt and order. Send back the LCR forthwith together with a copy of this judgeme