Gauhati High Court
Rishiram Sarmah vs The State Of Assam on 10 January, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/37
GAHC010165332021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/35/2021
RISHIRAM SARMAH
S/O. SRI CHABILAL SARMAH, VILL. NO.3 DHANSIRI, P.S. ROWTA, DIST.
UDALGURI, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. B BARUAH,
Advocate for the Respondent : PP, ASSAM,
BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA For the Appellant : Mr. B. Baruah, Adv.
For the Respondent : Ms. B. Bhuyan, Sr. Adv & Addl. P.P.
Date of Hearing : 05.11.2024
Date of Judgment : 10.01.2025
Page No.# 2/37
JUDGMENT & ORDER (CAV)
(Mridul Kumar Kalita, J)
1. Heard Mr. B. Baruah, the learned counsel for the appellant. Also heard Ms. B. Bhuyan, the learned Additional Public Prosecutor and Senior Advocate assisted by the learned counsel Ms. R. Das, representing the State of Assam.
2. This Jail Appeal has been registered upon receiving the petition of appeal from the appellant, Rishiram Sarmah, who is currently serving his sentence as per the impugned judgment in the District Jail, Udalguri.
3. The appellant has impugned the judgment dated 19.02.2021, passed by the Court of learned Sessions Judge, Udalguri in the Sessions Case No. 40(U)/2016, whereby the appellant was convicted under Section 302/201 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and a fine of Rs.5000/- (Rupees Five Thousand) and in default of payment of fine to undergo further imprisonment of 6 months under Section 302 of the Indian Penal Code. The Appellant was also sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.5000/- (Rupees Five Thousand) only and in default of payment of fine to undergo further imprisonment for 4(four) months under Section 201 of the Indian Penal Code.
4. The facts relevant for adjudication of the instant appeal, in brief, are as follows: -
i. That, on 29.01.2016, one Jit Bahadur Rai had lodged an FIR before the Officer-in-charge of Rowta Police Station, inter alia, alleging that, at around 10.00PM, on 20.01.2016, his younger sister namely, Smt. Bimala Rai, who was aged about 18 years 6 months Page No.# 3/37 went missing from the house of his paternal uncle, Shri Surya Bahadur Rai. It is also stated in the FIR that on 26.01.2016, the information in this regard was given to the Rowta Police Station. It is also stated that later on, the public, on suspicion questioned the appellant Rishiram Sarmah, who confessed that he had killed Bimala Rai and kept her dead body buried and he took the public to the place where he had buried the dead body.
ii. Later on, the matter was informed to the Rowta Police Station and the appellant was nabbed. On receipt of the aforesaid FIR, Rowta Police Case No. 12/2016 was registered under Section 302/201 of the Indian Penal Code and SI Khagendra Hazarika was entrusted with the investigation of the case.
iii. During the course of investigation, the Investigating Officer visited the place of occurrence, prepared the sketch map and recorded the statement of witnesses, and made seizure of relevant materials. The dead body of the victim girl was disinterred from the place where she was buried. The inquest of the dead body was also done. The Investigating Officer also got the statement of the witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973. The confessional statement of the appellant was also recorded under Section 164 of the Code of Criminal Procedure, 1973.
iv. After completion of the investigation, finding sufficient materials against the present appellant, the charge sheet was laid Page No.# 4/37 against him under Section 302/201 of the Indian Penal Code.
v. After committal of the case to the Court of learned Sessions Judge, Sonitpur, the charges under Section 302/201 of the Indian Penal Code were framed against the appellant by order dated 17.05.2016. When the said charges were read over and explained to the appellant, he pleaded not guilty and claimed to be tried. The appellant faced the trial by remaining in judicial custody.
vi. To bring home the charges against the appellant, the prosecution side examined as many as 28 witnesses and proved 23 documents. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he denied the truthfulness of the testimony of the prosecution witnesses and pleaded his innocence. However, he declined to adduce any evidence in his defense.
vii. Ultimately, by the judgment which is impugned in this appeal, the appellant was convicted and sentenced in the manner as already described in paragraph No. 3 of this judgment hereinbefore.
5. Before considering the rival submissions made by learned counsel for both the sides, let us go through the evidence of the prosecution witnesses, which is available in the case record of the learned Trial Court.
6. The PW-1, Sri Jit Bahadur Rai, who is the first informant of this case, as well as the elder brother of the deceased, has deposed that, on 20.01.2016,hisyounger sister, after having dinner, went to the house of the Page No.# 5/37 paternal uncle of the first informant, namely, Surya Bahadur Rai, which is situated adjacent to their house. The PW-1 has deposed at around 10:30 PM, his sister went out of the house to ease out, however, when she did not return for a long time, his paternal uncle woke him up and they made search for his sister Bimala outside the house of his uncle but they could not find her. The PW- 1 has further deposed that he knows the appellant whose house is situated about 20 to 25 meters away from his house. He has deposed that the appellant was having a love affair with his sister. He has further deposed that on not finding his sister Bimala, he went to the house of the appellant and called him from outside. The appellant responded from inside the house, but did not come outside. He has also deposed that the lights of the veranda of the house of the appellant were also switched off on that day but usually he used to keep the lights on. He has further deposed that on being unable to find his younger sister, he informed about the same to his maternal uncle, Jaibir Chubba, who is a member of Assam Gorkha Student Union. The PW-1 has also deposed that on being unable to find Bimala Rai, he informed the matter to police station. Later on, he lodged an FIR, which is proved as Exhibit- 1. The PW-1 has also deposed that during investigation, police seized one Nokia mobile handset and one Aircel SIM card from the house of his paternal uncle Surya Bahadur Rai and prepared a seizure list, which is proved as Exhibit-2, wherein his signatures are proved as Exhibit-2(1). PW-1 has further deposed that later on, he came to know from one Bikram Chetry (PW-14) that after killing Bimala, the appellant called Bikram to bury her body. He has further deposed that the appellant showed the place from where the body was buried and thereafter it was recovered therefrom and the Magistrate conducted the inquest over the dead body. He proved the Inquest Report as Exhibit-3.
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7. During cross-examination, the PW-1 has deposed that when they gave a slap to Bikram, he told them that the appellant had informed him over phone that he had killed Bimala and sought his help in burying the dead body. He has also deposed that Bikram came to the house of the appellant at about 2.00 PM on 21.01.2016. He has also deposed that the appellant was present in his house from 20.01.2016 to 29.01.2016. He answered in the negative to certain suggestive questions put to him by the learned defence counsel.
8. The PW-2, Sri Khargeswar Basumatary, has deposed that he is working as Government Gaonburha (Village Headman) since the year 2002. He has deposed that the police and the Magistrate came to the place where the dead body of Bimala was buried and it was exhumed there from. He has also deposed that the Magistrate conducted the inquest over the dead body. He proved the Inquest Report as Exhibit-3 and his signatures thereon as Exhibit- 3(2). He has also deposed that the police found a pair of shoes from the place of occurrence and seized the same and prepared the seizure list. He proved the seizure list as Exhibit-4 and his signatures thereon as Exhibit 4(1). His cross- examination was declined by the defence side.
9. The PW-3, Shri Krishna Bahadur Chetry, has deposed that his house is situated at a distance of about 500 meters from the house of the deceased Bimala Rai. He has deposed that on 29.01.2016, the appellant led the police to a place from where the dead body of the victim, Bimala Rai was recovered. It was in the paddy field at No. 3 Dhanshiri and was a damp place. The PW-3 has deposed that he along with about 500 other villagers were present at the time when the dead body was recovered from the place where it was buried. He also proved the seizure list by which a pair of shoes recovered from the place of occurrence was seized as Exhibit-4 and his signatures thereon Page No.# 7/37 as Exhibit-4(2). His cross-examination was declined by the defence side.
10. The PW-4, Joybir Limbu, has deposed that on 21.01.2016, the informant, Jit Bahadur Rai came to his house and informed that his sister Bimala Rai went missing on the previous day. He has also deposed that he came to know from the informant that his sister was having love affairs with the appellant for the last two years before the date of incident. The PW-4 has also deposed that on 26.01.2016, police came at the main chowk of No. 2 Dhanshiri and told PW-4 that the appellant used to talk to the victim over phone and the police asked PW-4 to accompany them to the house of the appellant. When police asked the appellant, he denied having any connection with the missing of the deceased Bimala Rai. PW-4 has also deposed that the police took the appellant to the police station. PW-4 has also deposed that he also went to the police station. He has deposed that the police told him that Bikram Chetrymay give some information regarding the incident and, accordingly, on being asked by the police, he made phone call to Bikram Chetry and asked him to meet him at Rowta. However, Bikram Chetry showed his inability to meet him at Rowta due to some family engagement.
11. Thereafter, PW-4 went to the house of Bikram Chetry at Rangapani along with Jit Bahadur Chetry. The PW-4 has deposed that on inquiry, Bikram Chetry told them that on 21.01.2016, the appellant contacted him over telephone at about 10:00 AM and asked him to come to his place. Accordingly, Bikram Chetry went to the house of the appellant at about 1:30 PM. PW-4 has deposed that Bikram Chetry told them that the appellant disclosed before him that he had killed the deceased Bimala Rai and asked him for help to get the dead body buried, he refused to do so and left the place. Thereafter, PW-4 took Bikram to some secluded place and informed the police Page No.# 8/37 about the same. PW-4 has deposed that thereafter, he along with others went to the house of the appellant, where the appellant had confessed before him as well as other villagers that he killed Bimala Raiand kept her dead body buried in the field which is a marshy land (Pitani). He has also deposed that the appellant showed them the place where he committed the murder and buried the dead body. In the meanwhile, police came there and the appellant was handed over to the police. PW-4 has further deposed that on the next day at about 10:00 AM, the Executive Magistrate came to the place of occurrence along with police and the dead body of Bimala Raiwas disinterred therefrom, and it was sent for post-mortem examination. PW-4 has also deposed that the appellant had confessed before them that he had strangulated the deceased. PW-4 has also deposed that he was produced before the Magistrate for recording his statement under Section 164 of the Code of Criminal Procedure, 1973. He has proved his statement recorded under Section 164 as Exhibit-4 and his signatures thereon as Exhibit-4(2) and Exhibit 4(3).
12. He has also deposed that the police had seized one Nokia mobile handset of model No. 114 and one SIM card bearing No. 9613683815 from the appellant Rishiram Sarmah in their presence and prepared a seizure list. He proved the said seizure list as Exhibit-5. He has further deposed that police also seized another Nokia mobile handset of model No. 1600 and a SIM card bearing No.9577654303 from the house of Surja Bahadur Rai and prepared the seizure list. He proved the said seizure list as Exhibit-2 and his signatures thereon as Exhibit-2(2). He has also deposed that police also seized one mobile handset along with two SIM cards from the possession of Bikram Chetry and prepared seizure list which is proved as Exhibit-6. He has also deposed that the police also seized one mobile handset from the possession of Miss Puja Rabha and Page No.# 9/37 prepared seizure list which is proved as Exhibit-7.
13. During cross-examination, the PW-4 has deposed that the house of the deceased and the house of the appellant are adjacent to each other with a common boundary. He has also deposed that the place where the dead body was found buried is situated at a distance of about half a kilometer from the house of the appellant. He has also deposed that the confession of the appellant was not recorded through any mobile etc.
14. The PW-5, Shri Bhupal Kumar Chetry, has deposed that he has been the Secretary of Village Defence Party of the village No. 3 Dhanshiri for last five years. He has also deposed that at the relevant time one Teg Bahadur Chetry came to his house and asked him to confine the appellant, Rishiram Sarmah, as he had committed some offence. He has also deposed that thereafter he accompanied Teg Bahadur Chetry to the house of the appellant and found that already other people were gathered there. All the people confined the appellant in his house. He has also deposed that on being enquired the appellant told them that he killed Bimala Rai and buried the dead body and thereafter he led them to the place where the dead body of Bimala Rai was buried. He has deposed that thereafter police was informed and the dead body was disinterred and it was identified to be the dead body of deceased Bimala Rai.
15. During cross examination, PW-5 has deposed that the appellant was a good student and he passed his HSLC examination in first division and at the relevant point of time he was a student of degree course.
16. The PW-6, Shri Maniraj Chetry, deposed that at the relevant point of time he was holding the post of General Secretary of Gorkha Student Union of Page No.# 10/37 Rowta and he was informed by the informant Jit Bahadur Rai that his sister went missing. He has deposed that after a week, the dead body of victim was recovered and he was present at the place from where the dead body was disinterred by the police. He has also deposed that he wrote the FIR as per the dictation of Jit Bahadur Rai (PW-1). During cross examination, he has deposed that he does not know whether the appellant confessed his guilt or not.
17. The PW-7, Shri Teg Bahadur Lama, has deposed that his house is situated near the house of the appellant. He has also deposed that the brother of the deceased namely Jit Bahadur Rai told him that his sister went missing. In this regard, police took the appellant to the police station for interrogation. However, he was released after one day. The PW-7 has also deposed that about eight to nine days thereafter he heard commotion in the house of appellant. When he came to the house of the appellant, he saw gathering of people there and the appellant disclosed before them that he had killed Bimala Rai and buried the dead body nearby "Beel" (marshy land). He has further deposed that the appellant led the people to the place where the dead body was buried. Thereafter, someone informed the matter to the police and police arrested the appellant.
18. During cross-examination, the PW-7 has deposed that initially the appellant did not confess his guilt. He has also deposed that he was not present when the dead body was disinterred from the place where it was buried.
19. The PW-8, Shri Man Bahadur Rai, has deposed that the appellant confessed before them that he had killed Bimala Rai and he led the people to the place where the dead body was kept buried.PW-8 also accompanied the group of people to the place of occurrence. He has also deposed that on the next morning the Executive Magistrate came along with police and the body of Page No.# 11/37 the victim deceased was disinterred and police took his signature on a paper. During cross-examination PW-8 has deposed that he is unaware as to on what the police obtained his signatures.
20. The PW-9, Shri Hari Jogi has deposed that the appellant led the village people near the bank of river Dhanshiri. He also accompanied the villagers where the appellant showed them a place from where the dead body of the deceased Bimala Rai was recovered on the next day. During cross- examination, PW-9 has deposed that he did not hear whether appellant said anything to the villagers or not.
21. The PW-10, Shri Sanjib Khatiora, has deposed that, on 20.01.2016, Jit Bahadur Rai (PW-1) informed him over telephone that his sister Bimala Rai was missing from his house. He has deposed that on the next day i.e. on 21.01.2016, along with Jaibir Limbu and Jit Bahadur Rai, he went to Rowta police station where the police informed them that the appellant contacted the deceased over phone. PW-10 has also deposed that the appellant had love affairs with the deceased Bimala Rai. He has deposed that after returning from the police station they went to the house of the appellant and inquired about Bimala Rai. The appellant replied that he does not know anything though he said that he made contact with the deceased. PW-10 has also deposed that after two days, police informed them that the appellant made contact with his friend Bikram Chetry and he also deposed that the villager informed them that Bikram Chetry came to the house of the appellant on 21.01.2016.
22. The PW-10 has further deposed that thereafter, he along with Joibir Limbu, Chakra Gautam, Jit Bahadur Rai, Ram Chetry, Manoj Rai searched for Bimala Rai and they went to the house of the friend of the appellant. On being inquired Bikram Chetry informed them that the appellant told him that he had Page No.# 12/37 killed Bimala Rai and buried the dead body. PW-10 has further deposed that thereafter they came back to the house of the appellant and inquired him about the incident. This time the appellant confessed before Joybir Limbu, Chakra Gautam, Jit Bahadur Raiand PW-10 that he called Bimala Raiand killed her and thereafter buried her in the field which is situated on the western side of the house of the appellant. Thereafter, the appellant led PW-10 and other people to the place where he had buried the dead body of Bimala Rai. PW-10 has also deposed that the appellant told them that he killed Bimala Rai by pressing her neck with a "Gamocha" (A traditional hand woven cotton cloth commonly used as a towel).
23. The PW-10 has further deposed that thereafter he called the Rowta Police Station over telephone and informed what has been stated by the appellant to them. He has further deposed that thereafter, the police came at about 8:00 PM and placed the guard on the place where the dead body was buried and on the next day, the police disinterred the body of the deceased in presence of the Magistrate. He has also deposed that the appellant had shown the place where the dead body was buried to the police.
24. During cross-examination, the PW-10 has deposed that before recovery of the dead body, the appellant denied of having committed the offence. He has also deposed that from 21.01.2016 to 28.01.2016, Bikram Chetry did not divulge about the incident to anyone. He has also answered in the negative to a suggestive question put to him by the defence counsel that he did not state before the police that the appellant confessed before them that he had killed Bimala Rai by pressing her neck with a " Gamocha".
25. The PW-11, Sri Chakra Gautam, has deposed that he went to Rowta Police Station on 28.01.2016 along with Jaibir Chubbaand Sanjib Chetry, where Page No.# 13/37 the police informed them that the appellant had made call to one Bikram Chetry at about 5:00A.M. Thereafter, PW-11 along with others went to the house of Bikram Chetry and they were informed by Bikram Chetry that Rishiram Sarmah (appellant) killed Bimala Rai and buried her in the field. PW-11 has also deposed that thereafter he along with other members of AGSU and villagers went to the plot of Rishiram and he led them to the place where the dead body of Bimala Rai was buried. He has also deposed that the police came to that place in the night and guarded the place thereafter, on the next day, the dead body was disinterred from the place where it was buried in presence of the Magistrate. He has also deposed that his statement was recorded by the Magistrate. He proved the said statement as Exhibit- 8.
26. During cross-examination, he has deposed that the area where the dead body was buried was a muddy land. He answered in the negative to certain suggestive questions put to him by the learned defence counsel.
27. The PW-12, Teg Bahadur Chetry, has deposed that on 20.01.2016, Bimala Rai went missing and the brother of Bimala Rai lodged the FIR. He also deposed that the family members of the deceased suspected the involvement of the appellant in the alleged offence. He has also stated that the appellant was arrested and was interrogated. However, he was released later on. Thereafter, after eight to nine days, he received a phone call from one Bikash Thapa informing him that many persons have gathered outside the residence of the appellant. PW-12 has deposed that he also went to the house of the appellant and on being asked, the appellant confessed that he killed Bimala and hid the dead body in the field. He has further deposed that at about 10:00 PM, the appellant led the villagers to the place where the dead body was buried. Thereafter, police came and on the next day at about 10:00 AM, the dead body Page No.# 14/37 of Bimala Rai was disinterred from the place which was shown by the appellant.
28. During his cross-examination, the PW-12 has stated before police regarding the confession made by the appellant. He has answered in the negative to certain other suggestive questions put to him by the learned defence counsel.
29. The PW-13, Ms. Puja Rani, has deposed that Bimala Rai was her classmate and on 20.01.2016 she went missing. She has also deposed that the brother of the deceased came to their house and asked her mother regarding Bimala Rai. She has also deposed that Bimala was having love affair with the appellant. She has also deposed that on 29.01.2016, the dead body of Bimala Rai was recovered on being shown by the appellant. She has also deposed that the Magistrate recorded her statement which has been proved as Exhibit-9.
30. During cross-examination, she has deposed that except her statement regarding love affairs, her all other statements are hearsay. She was not present when the dead body was disinterred and when the appellant had shown the dead body.
31. The PW-14, Sri Bikram Chetry, has deposed that on 21.01.2016, the appellant called him over phone and requested him to come to his house immediately. When PW-14 went to the house of the appellant, the appellant told him that he had killed Bimala Rai and buried her and sought his help to bury the dead body properly. PW-14 has deposed that on hearing this, he became frightened and left the house of the appellant out of fear. PW-14 has also deposed that he did not disclose the matter to police as he feared that he may be implicated in the case. PW-14 has also deposed that thereafter he disclosed the matter to the members of Gorkha Student Union, namely, Joybir Limbu, Page No.# 15/37 Manoj Rai, Kirat Rai, Ram Chetry, Sanjib, Jit Rai and Chatra Gautam and others as to what the appellant has stated to him. He has further deposed that thereafter he was taken by the members of Gorkha Student Association to the house of the appellant where the appellant confessed that he killed Bimala Rai. He has also deposed that his statement was recorded by the Magistrate which is proved as Exhibit-10.
32. During cross-examination, PW-14 has deposed that from 21.01.2016 to 28.01.2016, he did not disclose the fact to any person. He has also deposed that the appellant did not disclose as to how he had killed Bimala Rai and where he buried the dead body. PW-14 has answered in the negative to certain suggestive questions put to him by the learned defence counsel.
33. The PW-15, Sri Hemraj Gautam, is a seizure witness who has deposed that the police seized one mobile handset and one SIM card from the appellant and prepared one seizure list which is proved as Exhibit-11. He has also deposed that he has heard that the appellant confessed before local people that he killed Bimala Rai.
34. During cross-examination, he has deposed that he was not present when the appellant confessed before the villagers, hence he is not aware about the said confession.
35. The PW-16, Smti Durga Devi, is also a hearsay witness who has heard about the incident from others.
36. The PW-17, Shri Manoj Kumar Roy, has deposed that on 20.01.2016, Bimala Roy went missing and they made search for her, however, they could not trace out Bimala Rai. The PW-17 has further deposed that they got information that the appellant and Bimala Rai had love affairs, thereafter, he along with his Page No.# 16/37 friends, namely Jaibir Limbu, Sanjib Khatuwara and some other boys asked the appellant about the incident, but he did not disclose anything. The PW-17 has further deposed that thereafter, he along with Jai Bahadur Rai went to Rowta Police Station where the later had lodged the FIR. He has also deposed that thereafter, they went to the house of Bikram Chetri, who was the friend of the appellant. On being asked, Bikram Chetri told PW-17 that the appellant killed Bimala Rai and the appellant also called him to help him in burying the dead body. The PW-17 has further deposed that thereafter, he went to the police station where police seized the mobile phone of Bikram Chetri and prepared one seizure list, which is proved as Exhibit-6. During cross-examination, PW-17 has deposed that when they asked the appellant about missing of Bimala Rai, he did not confess.
37. The PW-18, Sri Ram Chetry, has deposed that on 20.01.2016, they got information that Bimala Rai was missing. Thereafter, he along with Purna Rai, Joybir Limbu, made search of Bimala Roy and went to the house of appellant. However, the appellant told them that he does not know anything about the incident. He has deposed that on 26.01.2016, the informant lodged the FIR. He has further deposed that thereafter, they came to know that the appellant had made contact with Bikram Chetry and thereafter, they went to the house of Bikram Chetry and brought him to the house of the appellant. This time, the appellant confessed that he killed Bimala Rai and buried her in the field. Thereafter, the appellant accompanied with PW-18 and others went to the place where Bimala Rai was buried and showed the said place to them.
38. During cross examination, the PW-18 has deposed that the dead body was recovered after 9 days of the incident and for these 9 days, the appellant was there in his own residence. He has deposed that the distance Page No.# 17/37 between the house of the appellant and the place where the dead body was buried is about half a kilometre.
39. The PW-19, Sri Surjya Bahadur Rai, has deposed that Bimala Rai is the daughter of Om Bahadur Rai and was his niece. He has deposed that the deceased came to his house about four months before her death as she was to appear in HSLC examination. He has deposed that on the date of the incident, at about 10 P.M. in the night, she went out of the house, which he came to know when the lock of the door was unbolted. He has further deposed that when his niece did not come back, he woke up his nephew, Jit Bahadur Rai (PW-1), who was also sleeping in his house and thereafter they made search for their nephew. However, she remained traceless. The PW-19 has deposed that later on police came and conducted search around their house and nearby places and eventually found the dead body of the niece from the suspected spot. He has deposed that before the death of his niece, the appellant used to come to his house very often. He proved one seizure list as Exhibit-2.During cross-examination, the PW-19 has deposed that he did not see as to with whom his niece went out of his home.
40. The PW-20, Sri Bikash Thapa, has deposed that he came to know that Bimala Rai was found missing from her house. He has deposed that on one day in the evening at around 5:00 PM, Jaibir Limbu, the Secretary of Gorkha Union, asked him over phone to keep a watch on the appellant Rishiram Sharma. Accordingly, he went to the house of the appellant along with other persons. PW-20 has further deposed that when he reached the house of the appellant, he saw many villagers have gathered there and thereafter, Jaibir Limbu came to the house of the appellant and interrogated the appellant. Thereafter, the appellant led said persons towards the field and showed one Page No.# 18/37 spot where Bimala Rai was buried after committing her murder. The PW-20 has also deposed that thereafter, the police arrived there and kept the said spot under guard till morning. In the next morning, the police disinterred the dead body of Bimala Rai from that spot.
41. During cross-examination, the PW-20 has deposed that when he reached the house of the appellant, there were other villagers there and the time was around 7:00 to 7.15 pm.
42. The PW-21, Sri Gautam Das, has deposed that on 26.01.2016, he was at his home. On that day, in the morning, he received a telephonic call from the Police that a murder took place at Rowta. He was called to Rowta Police Station. The PW-21 has deposed that he is the photographer of the Police department under Udalguri Police Station and as such, he went to Rowta Police Station along with his camera. He has deposed that after reaching the Police Station, he was taken to a spot where he saw many people gathered there and the police disinterred one dead body from this spot and he recorded the videography of the dead body at this spot. He proved the CD of the videography as Material Exhibit-1.
43. During cross-examination, PW-21 has deposed that the videography was done in presence of a Magistrate. He has also deposed that he did not certify that the CD contained the videography of the dead body of the deceased after being disinterred at the spot.
44. The PW-22, Dr. Arindam Bora, has deposed that on 29.01.2016, he was working as Medical &Health Officer-I 1 at Udalguri Civil Hospital. He has deposed that he performed the post-mortem examination of the dead body of Bimala Rai and he found following on the examination: -
Page No.# 19/37 "External Appearance:-
Decomposed. Mark of ligature found on the neck. Cranium and Spinal Canal: -
Scalp, Skull- normal, Membrane, Brain, Liver, Kidneys, Bladder, Organs of generation- all are intact. Thorax:-
Walls ribs and cartilages- intact.
Pleurae, Laryax and trachea, lungs, Vessels- all are intact. Abdomen:-
Walls, Peritoneum, Mouth, pharynx, oesophagus, Stomach and its contents, Small intestine and its contents, Large intestine and its contents- all are intact.
Injury:-
Ligature mark around the neck.
More details description:-
On post-mortem examination it is found that a female body is decomposed, one ligature mark is found around the neck. Face is swollen. No fracture is found. One Gamocha is found around the neck which is tightly tide. All injuries are ante-mortem and duration of death is 8-10 days."
45. The PW- 22 has opined that the death was due to asphyxia as a result of strangulation. He proved the post-mortem examination report as Exhibit-11.
46. The PW-23, Binay Saharia, is the seizure witness of the seizure of Page No.# 20/37 the compact disc containing the videography of the disinterment of the dead body of the Bimala Rai. He has proved the seizure list as Exhibit-12.
47. The PW-24, Mridul Ali, has deposed that on 26.01.2016 he accompanied the Sub-Inspector of Police, namely, Shri Dilip Mili of Rowta Police to the house of one Surya Bahadur Raiand during search of the said house one mobile phone used by Bimala Rai was recovered from her bed where Bimala Rai was staying till the date of her missing. The said mobile phone was seized by Shri Dilip Mili and PW-24 put his signature on the seizure list as seizure witness.
48. The PW-25, Smt. Gitali Rabha, has deposed that on 30.01.2016 she was working as the Chief Judicial Magistrate, Udalguri and on that day the appellant was produced before her by the Investigating Officer, namely, Khagendra Hazarika in connection with Rowta Police Station Case No. 12/2016 for recording his confessional statement. She has deposed that on that day she sent the appellant for reflection till 02.02.2016. Again on 02.02.2016, at about 1:30 PM, the Investigating Officer produced the appellant for recording the confessional statement. The appellant was again sent for reflection till 3:30 PM and was produced before her. She has also deposed that on his production, the appellant was kept in custody of office peon, namely, Gobinda Deka and he was cautioned that he is not bound to make any confession and if he does so it may be used as evidence against him. However, the appellant replied that he is willing to give confessional statement voluntarily. The PW-25 has deposed that on being satisfied that the appellant is in a fit state of mind and is prepare to give his confessional statement voluntarily, she recorded his confessional statement as per the procedure of law. She proved the confessional statement made by the appellant as Exhibit- 16 and she also proved her own signature thereon.
Page No.# 21/37
49. During cross-examination, the PW-25 has deposed that the Investigating Officer made his prayer for recording confessional statement on 30.01.2016, however the statement of the appellant was recorded on 02.02.2016. She has also stated that immediately after production, the appellant was again cautioned that he was not bound to give confessional statement and if he does so that would be used against him.
50. The PW-26, Shri Raju Doom, has deposed that in the year 2016, he accompanied the personnel of Rowta police Station to disinter a dead body at Tarajuli and accordingly in presence of the appellant and police, he disinterred the dead body of a female from the spot and later on the said dead body was brought to Rowta Police Station. His Cross examination was declined by the defence side.
51. The PW-27, Dilip Mili, Inspector of Police has deposed that on 26.01.2016, he was posted as the Officer-in-Charge of Rowta Police Station and on that day at around 5:00 PM, the informant Jit Bahadur Rai lodged an FIR, inter alia, stating that on 20.01.2016 at about 10:00 PM, his younger sister Bimala Rai went out of the house to attend the call of nature. However, when she did not return, after a long time, a search was made and she remained traceless in spite of that. The PW-27 has also deposed that on the basis of the said information, the GD entry No. 546 dated 26.01.2016 was made. The PW-27 has also deposed that thereafter he proceeded to the place of occurrence along with the other police staff. He has deposed that he conducted search in the house of Surjya Bahadur Rai and recovered one mobile phone from the bed of the Bimala Rai which was kept under the mattress. He has also deposed that he recorded the statement of witnesses and came to know that the missing girl had love affairs with the appellant Rishiram Sharma. Thereafter, he went to the Page No.# 22/37 house of Rishiram Sharma and seized his mobile phone. He has also deposed that the appellant was taken to Rowta Police Station for interrogation.
52. The PW-27 has also deposed that on 27.01.2016, he analyzed the call recording of the seized mobiles of Bimala Rai and Rishiram Sharma and found that both of them were talking to each other on 20.01.2016 at around 10.06 PM and they also exchanged SMS. He has also deposed that one phone call from phone No. 7086426821 was received at about 11:29 PM in the phone of the appellant. He has also deposed that on the basis of frequent telephonic communication between the missing victim Bimala Rai and Rishiram Sharma, he suspected the involvement of the appellant in the alleged offence. He has also deposed that on 27.01.2016, he handed over the case diary to SI Khagendra Nath Hazarika. He has also deposed that on 27.01.2016. He has also proved the sketch map of the place of occurrence, call detail reports (CDRs) of the mobile phone used by the deceased and the appellant and seizure lists of mobile phones.
53. During cross examination, PW-27 has also deposed that formal FIR in this case was lodged on 29.01.2016. He has also deposed that he did not arrest the appellant on the basis of missing entry.
54. PW-28, Khagendra Hazarika, retired SI of Police, has deposed that on 28.01.2016, he was acting as Officer-in-Charge of Rowta Police Station in absence of regular Officer-in-Charge, namely, Shri Dilip Mili, as he was on some official duty. He has deposed that on that day, at about 11:15 AM, one Jaibir Limbu (PW-4) informed him over telephone that appellant Rishiram Sarmah has confessed before him that he murdered the victim Bimala Rai and the dead body was concealed. He has deposed that on getting this information, he made the GD Entry No. 597 dated 28.01.2016 and immediately rushed to the place of Page No.# 23/37 occurrence, with Police staff, which was situated at No. 2 Dhansiri cultivation field. He has deposed that when he reached the place of occurrence, many people had already gathered there. He has also deposed that the appellant Rishiram Sarmah was taken in their custody as villagers tried to manhandle him. The PW-28 has further deposed that the appellant told him that he would show the place where the dead body of the deceased Bimala Rai was buried after committing her murder. He has also deposed that as it was dark as such on the next day morning in the presence of Additional SP HQ, Assistant SP, Executive Magistrate and Circle Inspector Rowta Police Station, the dead body of the deceased was disinterred. He has proved Exhibit-21 which is the statement of the appellant which led to the discovery of the dead body. He has further deposed that thereafter inquest was conducted over the dead body of Bimala Rai. He has also deposed that he recorded the statement of the witnesses, prepared the sketch map of place of occurrence and made seizure of a pair of shoes which were found near the place of occurrence as well as also seized the mobile phone of Bikram Chetry and Puja Rana as well as the compact disc. He has also deposed that after conclusion of the investigation having found sufficient materials against the appellant, he laid the charge-sheet against the appellant Rishiram Sarmah under Section 302/201 of the Indian Penal Code.
55. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he denied the truthfulness of the testimony of the prosecution witnesses and also pleaded his innocence. While answering to question No. 38 put to him by the Trial Court, he has stated that the Police coerced and tutored him to make confessional statement. However, he declined to adduce any evidence in his defence.
56. Mr. B Baruah, learned counsel for the appellant has submitted that Page No.# 24/37 the prosecution side has failed to prove the guilt of the appellant beyond reasonable doubt. However, the Trial Court has failed to take into consideration the inherent inconsistencies in the testimony of prosecution witnesses. Hence, the conviction and sentence imposed on the appellant is liable to be set aside. He also submits that the Trial Court has erred in coming to the conclusion that the dead body of deceased Bimala Rai was exhumed on the basis of the information given by the appellant to the police, whereas the evidence on record shows that even before the appellant took the police to the place where the dead body was buried, the public knew about the said place and it was not discovered on the basis of the statement given by the appellant to the police. He also submits that the prosecution side has also not proved the statement which was given by the appellant to the police, which the prosecution side is relying on as a statement under Section 27 of the Indian Evidence Act. He has submitted that the prosecution side has failed to prove the exact information which is stated to be given to the police by the appellant on the basis of which the dead body of deceased Bimala Rai was found. Hence, he submits that Section 27 of the Indian Evidence Act would not come in aid of the prosecution's case. In support of his submission, the learned counsel for the appellant has cited a ruling of Full Bench of this Court in the case of " Rajiv Phukan and Anr. -Vs- State of Assam" reported in "2009 (2) GLT 414".
57. The learned counsel for the appellant has also submitted that the testimony of PW-14 Shri Bikram Chetry regarding the extra-judicial confession made before him by the appellant is not reliable and from his testimony itself, it is apparent that he came to know about the incident on 21.01.2016. However, till 28.01.2016, he did not disclose this fact to anyone. Such a delay in disclosure of fact without giving a reasonable explanation for the same, Page No.# 25/37 according to the learned counsel for the appellant, makes the testimony of PW- 14 unworthy of any credence and, therefore, he submits that on the basis of evidence regarding extra-judicial confession made by the appellant before PW- 14, it would not be safe to come to the conclusion of guilt of the present appellant. He also submits that the extra-judicial confession is otherwise a very weak piece of evidence and which generally should not be relied upon unless there is corroboration to the same lending credence to such evidence. However, he submits that, in the instant case, no such corroboration is there.
58. The learned counsel for the appellant has also submitted that the Trial Court has rightly rejected the confessional statement made by the appellant as same is exculpatory in nature and he has not admitted to his guilt for having committed the alleged offence. The learned counsel for the appellant has also submitted that while imposing the sentence on the appellant, the Trial Court has made an observation that the sentence of imprisonment for life which has been imposed on the appellant means all of his life, the learned counsel submits that considering the young age of the appellant, it would be too harsh a sentence on him in view of the evidence on record. He submits that considering the weak nature of the extra-judicial confession and considering the fact that no direct evidence is there against the appellant, he is entitled to gain benefit of doubt and, therefore, learned counsel for the appellant submits that the appellant may be given benefit of doubt and may be acquitted of charges under Sections 302/201 of the Indian Penal Code.
59. On the other hand, Ms. B. Bhuyan, the learned Additional Public Prosecutor has submitted that the Trial Court has rightly convicted the appellant under section 302 and section 201 on the Indian Penal Code and same needs no interference by this Court in this appeal. The learned Additional Public Page No.# 26/37 Prosecutor has submitted that though the confessional statement made by the appellant was not relied upon by the Trial Court on the ground that it contains both exculpatory as well as inculpatory statement of the appellant, however, she submits that where there are materials to show that the exculpatory statement of the confession made by the appellant is false, then the inculpatory part may be relied upon. She submits that though in his confessional statement, the appellant has stated that the deceased Bimala Rai had committed suicide by strangulating herself with a gamosa, however, the learned Additional Public Prosecutor submits that the post mortem examination report of the deceased has found horizontal ligature marks on the neck of the deceased. By citing a judgment of the Supreme Court of India in the case of Mandhari -Vs- State of Chattisgarh reported in AIR 2002 SC 1961, the Additional Public Prosecutor submits that the horizontal ligature marks cannot be caused by hanging, but only by strangulation. Such medical evidence rules out the possibility of suicide, indicating that the strangulation is homicidal, as the victim could not have strangled herself with a piece of cloth due to her reflexes preventing it.
60. The learned Additional Public Prosecutor submits that in his confessional statement, though the appellant has tried to falsely exonerate himself, he ultimately incriminates himself by saying that out of fear, he buried the dead body which is sufficient to convict him under section 201 of the Indian Penal Code. The Additional Public Prosecutor has also submitted that an oral extra-judicial confession, if it is found free from any infirmity and found to be voluntary and true, it can be made as a basis of conviction, though prudence always demands that there should be corroboration to such evidence. She submits that in the instant case, the testimony of PW-14 could not be shaken during his cross-examination. Similarly, testimony of other prosecution witnesses Page No.# 27/37 who have deposed regarding the extra-judicial confessions made by the appellant, it could not be demolished during their cross-examination. Hence, there is no ground for not relying on such testimony and disbelieving the same. The learned Additional Public Prosecutor has submitted that the prosecution witnesses, including PW-14, who have deposed regarding extra-judicial confession, do not have any enmity with the appellant to falsely implicate him. Hence, there is no justification in discarding the testimony of these witnesses.
61. The Additional Public Prosecutor also submits that the statement of aforesaid witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973, also corroborates their evidence regarding making of extra- judicial confession by the appellant before them. She also submits that call detailed reports(CDRs) of the mobile phone of the appellant as well as that of the deceased and the PW-14 shows that the appellant was having conversation with the deceased on 20.01.2016 i.e., the date on which the deceased had died. Thereafter, the appellant was having conversation with PW-14, which corroborates the evidence of PW-14, wherein he has deposed that the appellant had spoken to him over mobile phone and asked him to come to his house to help him to properly bury the dead body of the victim.
62. The learned Additional Public Prosecutor has submitted that though, there is no eyewitness to the offence involved in this case, there are evidence to the effect that the appellant was with the deceased on the day of alleged incident, however, during his examination under Section 313 of the Code of Criminal Procedure, the appellant has failed to explain as to what actually happened on the date of alleged incident. She also submits that though in his statement made under Section 164 before the Investigating Officer, he tried to give a new turn to the whole story by suggesting that the deceased herself Page No.# 28/37 committed suicide by strangulating with a gamosa, which is not possible without any external aid. She also submits that though the disclosure statement under Section 27 of the Indian Evidence Act may not be there, however, most of the witnesses have deposed that the place where the deceased was buried was shown by the appellant to the villagers and this evidence weighs against the appellant.
63. The learned Additional Public Prosecutor also submits that as the evidence of PW-22 i.e., the doctor who conducted the post-mortem examination of the deceased, shows that the death of the deceased was due to asphyxia as a result of strangulation and as the ligature mark was found around the neck, the possibility of suicide may be ruled out. She has also submitted that even one gamosa was found tightly tied around the neck of the deceased which only indicates regarding the homicidal death of the deceased. She also submits that the deposition of PW-14 as well as other witnesses as regards the extra-judicial confession made by the appellant before them remains unshaken and as such the said evidence, in itself, is sufficient to convict the appellant, therefore, she submits that the Trial Court has committed no error in convicting the appellant under Section 302/201 of the Indian Penal Code and the impugned judgment does not warrants any interference in this appeal.
64. We have considered the rival submissions made by the learned counsel for both the sides. We have also meticulously gone through the materials which is available in the case record.
65. On perusal of the impugned judgment, it appears that the Trial Court has not taken into consideration the confessional statement made by the appellant as it contains both the exculpatory part as well as the inculpatory part, and in arriving at the finding of guilt of the appellant, the Trial Court relied on Page No.# 29/37 following materials: -
A. The extra-judicial confession made by the appellant before PW-14, PW-4, PW-5, PW-7, PW-10, PW-12, PW-8 and PW-18.
B. The medical evidence including the post-mortem examination report.
C. The fact that the place where dead body was buried could be found on the basis of the information given by the appellant to the police while in custody in accordance to the Section 27 of the Indian Evidence Act.
D. The presumption drawn under Section 114(h) of the Indian Evidence Act on failure on the part of the appellant to answer during his examination under Section 313 of the Code of Criminal Procedure as to under what circumstances and how the deceased Bimala Rai had died.
66. In the instant case, though the plea of delay of around 8 days in lodging the FIR has been taken by the learned counsel for the appellant, however, the evidence on record shows that under the facts and circumstances of the case the delay in lodging the FIR appears to be justified. If we peruse the testimony of PW-1, who is the first informant of this case, it appears that when his sister Bimala went missing from the house of his uncle Surya Bahadur Rai and when they were unable to find out her, he informed the matter to the police station. However, the FIR was lodged only when PW-14 informed them about the death of the deceased Bimala Rai. They came to know through the extra- judicial confession made by the appellant that the sister of the first informant Page No.# 30/37 has been killed and her dead body has been buried. The evidence of PW-14 clearly shows that the fact that the deceased Bimala Rai has been killed and her dead body was buried came to the light for the first time on 28.01.2016 when PW-14 disclosed this fact to the members of Gorkha Student Union who went to his house to inquire about the incident.
67. The deceased Bimala Rai went missing on 20.01.2016. The evidence on record indicates that she died on the same day. The post-mortem examination report of the deceased shows the time of death as about 8 to 10 days prior to the post-mortem examination. It also appears that the PW-14 came to know about the fact of the death of the deceased on the very next day i.e., 21.01.2016 when the appellant informed him about the same. The evidence of PW-14 to the effect that he did not disclose the matter to the Police due to the fear of getting involved in the case appears to be a logical and acceptable explanation considering the facts and circumstances of the case. Same also remains uncontroverted during the cross-examination of the PW-14. We are, therefore, of the considered opinion that the lodging of the formal FIR on 29.01.2016, by itself, is not a valid reason to cast doubt on the veracity of the prosecution's story.
68. The evidence of PW-22 i.e., the doctor who conducted the post- mortem examination of the dead body of the deceased, Bimala Rai, has deposed that the death of the deceased occurred about 8 to 10 days prior to conduct of the post-mortem examination. The post-mortem examination was conducted on 29.01.2016 and the deceased Bimala Rai went missing on 20.01.2016. The post-mortem examination report, therefore, indicates that the deceased Bimala Rai died on the day of missing itself. As per the post- mortem report, which is proved as Exhibit-11 as well as the opinion of the Page No.# 31/37 doctor who conducted the post-mortem examination, i.e., PW 22, the cause of death was due to asphyxia as a result of strangulation. The post-mortem report of the deceased also indicates that there was ligature mark around the neck of the deceased and one "gamosa" was also found around tightly tied around the neck. In this case, there is no material to suggest that the death of the deceased was caused by hanging, rather, the appellant in his statement, which was recorded under Section 164 of the Code of Criminal Procedure, 1973, and which has been proved as Exhibit-16, in trying to make out a story, has stated that the deceased Bimala Rai committed suicide by tying a " gamosa" around her neck. However, it is very unlikely that a person can strangulate himself with a cloth without hanging as maintaining consistent fatal pressure around the neck manually with a cloth, without any external support. The human body has strong reflexes, such as struggling or releasing pressure to avoid asphyxiation. The discomfort and instinct to breathe make self-strangulation without an anchor point unlikely to succeed. Therefore, we are of the considered opinion that the story projected by the appellant in his statement recorded under Section 164 of the Code of Criminal Procedure, 1973 (Exhibit-16), that the deceased Bimala Rai died by strangulating herself by tying a "gamosa" around her neck, is not believable. The only other inference which may be drawn is that the deceased Bimala Rai was strangulated by some other person and her death is homicidal in nature.
69. The evidence on record, mainly the testimony of PW-14 suggests that the first person before whom the appellant made his extra-judicial confession immediately on the day after the incident i.e., on 21.01.2016 was PW-14, namely, Bikram Chetry. The appellant had telephonic conversation with the PW-14 who was called to his residence. The evidence on record shows that Page No.# 32/37 when PW-14 went to the house of the appellant, he disclosed that he had killed Bimala Rai and buried her in the field and sought his help for properly burying the body. However, after hearing this, the PW 14 became frightened and out of fear, he left the house of the appellant. It is also in the evidence that after knowing about the death of the deceased Bimala Rai from the appellant, the PW-14 kept quiet for 8 days and he did not disclose the matter to police as he feared that he might be implicated in the case. It is pertinent to note that testimony of PW-14 remained intact and it could not be demolished during cross-examination. The explanation provided by him for not disclosing the matter to anyone, between 21.01.2016 and 28.01.2016, appears to be reasonable and acceptable. This cannot be a ground for disbelieving the testimony of PW-14, especially since it remained consistent during cross- examination. The testimony of PW-14 has been corroborated by Ext. 10, which is the statement of PW-14 recorded under Section 164 of the Code of Criminal Procedure, 1973, as well as by other evidence indicating that the deceased, Bimala Rai, was buried in the field. Apart from the PW-14, the PW-4 namely, Joy Bir Limbu had also deposed that the appellant had confessed before him as well as other villagers that he killed Bimala Rai and kept her dead body buried in the field which is a marshy land. He also deposed that the appellant showed them the place where he committed the murder and buried the dead body. This testimony of PW-4 also could not be controverted or demolished during his cross-examination. Similarly, the testimony of PW-5 Shri Bhupal Kumar Chetry to the effect that the appellant had confessed regarding killing of Bimala Rai and burying her dead body and thereafter he led the PW-5 and other villagers to the place where the dead body was buried also could not be contradicted during cross-examination and hence this evidence also remained intact. Similarly, the Page No.# 33/37 testimony of PW-7 Shri Teg Bahadur Lama, PW-8 Shri Man Bahadur Rai, PW-10 Shri Sanjib Khatiora, PW-12 Shri Teg Bahadur Chetry and PW-18 Ram Chetry to the effect that the appellant confessed before them that he had killed Bimala Rai and buried her in the field and later on showed them the place where she was buried remains intact as it could not be demolished during the cross- examination of said witnesses.
70. It is pertinent to mention herein that the extra-judicial confession made by the appellant before PW-14, namely, Shri Bikram Chetry was made on 21.01.2016.Whereas, the extra-judicial confession made before other witnesses was made on 28.01.2016 after the members of Gorkha Student Unionwere told about the making of extra-judicial confession by the appellant before PW- 14 Shri Bikram Chetry. As the evidence regarding the extra-judicial confession made by the appellant before PW-14 as well as before other witnesses remain intact hence the veracity and trustworthiness of the said extra-judicial confession cannot be questioned.
71. The extra-judicial confession made by the appellant before the PW- 14 as well as other witnesses appears to be free from suspicion, voluntary and true and same has been corroborated by the finding of the dead body of the deceased Bimala Rai buried in the field in the place shown by the appellant. Though, during her examination under Section 313 of the Code of Criminal Procedure, the appellant had denied making any such extra-judicial confession either before PW-14 or other witnesses, however, as observed by the Apex Code in the case of Abdul Ghani -Vs- State of UP reported in (1973) 4 SCC 17 that a retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and voluntarily made. Though, it is always a rule of prudence to seek corroboration of an extra-judicial confession. In the Page No.# 34/37 instant case also we are of the view that the extra-judicial confession made by the appellant before PW-14 on 21.01.2016 appears to be spontaneous free from suspicion, voluntary and true and therefore there is no bar in convicting the appellant on the basis of such an extra-judicial confession.
72. Though, the evidence on record shows that the place from where the dead body of the deceased Bimala Rai was disinterred was identified after the appellant showed the said place to the villagers including the members of Gorkha Students Union, however, the same cannot be treated as an information leading to discovery of a fact under Section 27 of the Indian Evidence Act. In this regard, we do not agree with the observation made by the Trial Court in paragraph No. 42 of the impugned judgment that on the basis of the information given by the appellant to the police while he was in custody that dead body of the deceased Bimala Rai was exhumed. This does not appear to be a correct inference as the evidence on record clearly suggests that before disclosing the fact by the appellant before the police, he had disclosed about the place where the dead body was buried to the members of Gorkha Students Union and other villagers. There is evidence on record to indicate that the appellant had led the members of Gorkha Students Union to the place where the dead body of the deceased Bimala Rai was buried before the arrival of police. Hence, we are of the view that in the instant case, the discovery of the fact that the deceased was buried in the field was not because of the information received from the appellant while he was in police custody but before he made any such disclosure to police. Therefore, Section 27 of the Indian Evidence Act does not seem to be applicable in the facts and circumstances of the present case.
73. As regards to the presumption drawn by the Trial Court under Page No.# 35/37 Section 114(h) of the Indian Evidence Act against the appellant in paragraph No. 44 of the impugned judgment, we are of the considered opinion that the appellant has not refused to answer any question put to him during his examination under Section 313 of the Code of Criminal Procedure 1973. He has only denied the truthfulness of the testimony of prosecution witnesses and pleaded his innocence. This would not be considered a refusal to answer any question posed to him by the Court during his examination under Section 313 of the Code of Criminal Procedure, nor would it justify the Court presuming that any answer he might have provided would have been unfavorable to him.
74. The evidence on record, particularly the testimonies of PW-27 and PW-10, indicates that an analysis of the call detail records (CDR) of the appellant's phone revealed multiple contacts with the deceased on 20.01.2016. Following this, the appellant also contacted PW-14. The testimony of PW-10 further shows that the police informed them about the appellant's contact with Bikram Chetry. Consequently, PW-10, along with other members of the Gorkha Student Union, questioned Bikram Chetry (PW-14), who disclosed that the appellant had made an extra-judicial confession to him regarding the killing of Bimala Rai and the burial of her body in the field.
75. The Apex Court has observed in the case of Pyare Lal Bhargava v. State of Rajasthan, reported in 1962 SCC OnLine SC 25 as follows: -
"7. The second argument also has no merits. A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It Page No.# 36/37 is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. The High Court having regard to the said principles looked for corroboration and found it in the evidence of Bishan Swaroop, PW 7, and the entry in the Dak Book, Ex. PA-4, and accepted the confession in view of the said pieces of corroboration. The finding is one of fact and there is no permissible ground for disturbing it in this appeal."
76. In the instant case, it appears that even before police came to know about the actual story involved in the case i.e., the killing of Bimala Rai and keeping her dead body buried, this fact was disclosed to the villagers including the members of Gorkha Student Union by the appellant by making extra-judicial confession before them. Extra-judicial confession made by the appellant before PW-14 appears to be trustworthy, true and free from infirmity under the circumstances in which it was made. The same also stands corroborated by the fact that the dead body of Bimala Rai was found buried in the field and the post- mortem examination report of the dead body of Bimala Rai shows that she died Page No.# 37/37 due to asphyxia because of strangulation and there was horizontal ligature mark around the neck of the deceased which lends credibility to the extra-judicial confession made by the appellant before PW-14 and other witnesses.
77. Thus, for the reasons mentioned hereinabove, though, we discard the evidence regarding the disclosure statement of the appellant under Section 27 of the Indian Evidence Act as well as the confessional statement where the appellant gave both inculpatory as well as exculpatory statement regarding his involvement in the offence, however, the extra-judicial confession made by the appellant before PW-14 seems to be both truthful as well as voluntary and it also gets corroborated by the other evidence regarding recovery of the dead body of the deceased Bimala Rai from the field where it was buried as well as from the medical evidence i.e., the post-mortem examination report. We, therefore, agree with the findings arrived at by the learned Session Judge, Udalguri in convicting the appellant under Section 302 as well as 201 of the Indian Penal Code. We accordingly find no ground to interfere in the conviction of the appellant under the aforesaid provisions as well as sentence imposed on him by the Trial Court.
78. This appeal is accordingly dismissed.
79. Let, the case record of the Trial Court which were requisitioned be sent back along with a copy of this judgment.
JUDGE JUDGE Comparing Assistant