Gauhati High Court
Shri Petlu Konwar vs The State Of Assam on 26 May, 2016
Author: A.K. Goswami
Bench: A. K. Goswami, Indira Shah
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
1. CRIMINAL APPEAL (J) NO.108 OF 2012
Shri Petlu Konwar
........Appellant
-Versus-
The State of Assam.
........Respondent
For the Appellant : Mr. M. Biswas, Amicus Curiae.
For the Respondent : Ms. S. Jahan, Additional Public Prosecutor, Assam.
2. CRIMINAL REFERENCE (HILLS) NO.1 OF 2012
The State of Assam.
-Versus-
Shri Petlu Konwar
: Mr. T.J. Mahanta, Amicus Curiae,
(Senior Standing Counsel, Gauhati High Court)
B E F O R E
HON'BLE MR. JUSTICE A. K. GOSWAMI
HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH
Date of hearing : 05.04.2016.
Date of Judgment & Order : 26.05.2016.
Crl. Appeal (J) No.108/2012
Crl. Reference (Hills) No.1/2012 Page 1 of 23
JUDGMENT & ORDER (CAV)
(A.K. Goswami, J)
Criminal Appeal (J) No.108/2012 and Criminal Reference (Hills) No.1/2012 arise out of
judgment dated 23.07.2012 passed by the Deputy Commissioner, Karbi Anglong, Diphu in
Sessions Case No.48/2005 under Sections 376(2)(f)/302/201 IPC, convicting the appellant in
Criminal Appeal (J) No.108/2012, Petlu Konwar, under the aforesaid Sections and sentencing him
to suffer rigorous imprisonment for life and to pay a fine of Rs.3,000/- (Rupees Three Thousand),
in default, to undergo further rigorous imprisonment for 3(three) months for the offence under
Section 302 IPC, to undergo rigorous imprisonment for 10(ten) years with a fine of Rs.1,000/-
(Rupees One Thousand), in default, to undergo rigorous imprisonment for 1(one) month for the
offence under Section 376(2)(f) IPC and to undergo rigorous imprisonment for 3(three) years with
fine of Rs.500/- (Rupees Five Hundred), in default, to undergo rigorous imprisonment for another
15(fifteen) days for the offence under Section 201 IPC. All the sentences were to run concurrently.
It is also observed in the said judgment that the case against the absconding accused, Shri
Rajendra Chauhan, would revive in the event of his arrest.
[2] Under Section 6 of the Scheduled Districts Act, 1874, the Governor was pleased to
prescribe a set of Rules called Rules for the Administration of Justice and Police in the Sibsagar,
Nowgong, Mikir Hills Tracts for the Administration of Justice and Police in the aforesaid districts.
The districts had undergone change of names and new districts had also been curved out over the
years. Mikir Hills Tracts meant the Mikir Hills Autonomous District comprising of Tribal areas within
the boundaries defined in Notification No.TAD/R-31/ 50/151, dated 13.04.1951. It is not disputed
that the present district, named and styled as Karbi Anglong District, comprise the areas of Mikir
Hills Tracts. Under Rule 16 of the aforesaid Rules, the Deputy Commissioner is competent to pass
sentence of death, transportation or imprisonment up to the maximum amount provided for the
offence, of whipping and of fine up to any amount provided that all sentences of death,
transportation or imprisonment of 7(seven) years and upwards shall be subject to confirmation by
the High Court. It is in view of Rule 16 of the said Rules, the Deputy Commissioner had forwarded
the case records for confirmation by this Court and accordingly, Criminal Reference (Hills)
No.1/2012 was registered.
[3] In Criminal Reference (Hills) No.1/2012, Mr. T.J. Mahanta, learned senior standing
counsel, Gauhati High Court was appointed as the Amicus Curiae. Mr. M. Biswas, learned counsel
Crl. Appeal (J) No.108/2012
Crl. Reference (Hills) No.1/2012 Page 2 of 23
was appointed as Amicus Curiae in Criminal Appeal (J) No.108/2012 to represent the appellant. We
have heard both of them as well as Ms. S. Jahan, learned Additional Public Prosecutor, Assam.
[4] By this common judgment and order, Criminal Reference (Hills) No.1/2012 and
Criminal Appeal (J) No.108/2012 are being disposed of.
[5] An FIR was lodged by the father of the victim girl (PW-1) on 24.10.2003 stating that at
about 5:30-6:00 PM of the previous day, his daughter X (name withheld), aged about 8/9 years
along with her brother Y (name changed) (PW-2) had gone out for the purpose of attending Kali
Puja and about half an hour later, his son (PW-2) had returned back home alone and informed his
mother that the appellant as well as another boy of the village chased them and upon the
informant coming back home, he was also informed about the said incident. Thinking that the boys
had played a prank, not much attention was paid and they went to bed. However, as she did not
return till morning, he went out searching for her and found her dead body in a jungle, a little
away from the road. He suspected that the aforesaid 2(two) persons had killed his daughter and
had concealed her dead body. On receipt of the aforesaid Ejahar, a G.D. Entry was recorded at
1:10 PM and thereafter, the Ejahar was forwarded to Howraghat Police Station, wherein
Howraghat Police Station Case No.102/2003 under Section 302 IPC was registered.
[6] Police started investigation and on 31.10.2003, a red panty was seized by the
Investigating Officer (PW-14) in presence of witnesses, namely, Rambhoji Chouhan (PW-5),
Mangal Keot (PW-6), Prabhu Thakur (PW-7), Ram Ratan Chouhan (not examined) and the
informant (PW-1) vide seizure list, Exhibit-1, wherein it was mentioned that the seizure was
effected on being led by the accused. Police conducted inquest over the dead body in presence of
Sudoma Chouhan (not examined), Rajendra Chouhan (PW-10), the informant (PW-1) and Parash
Keot (PW-11) and inquest report, Exhibit-2 was prepared. After completion of investigation, police
submitted charge-sheet under Sections 376/512/302/201/34 IPC (Exhibit-6) stating that during
investigation sufficient incriminating materials were found against the appellant and Rajendra
Chouhan, both residents of the same place. The appellant was sent up for trial as the other
accused was absconding. Along with the charge-sheet, post-mortem report (Exhibit-7), seizure list
(Exhibit-1) and a confessional statement of the accused under Section 164 Cr.PC were also
enclosed.
[7] The case being exclusively triable by the Court of Sessions, the learned Magistrate, 1st
Class, Karbi Anglong, Diphu, passed an order dated 29.08.2005 in G.R. Case No.387/2003
committing the case to the Court of Sessions, keeping the relevant documents pertaining to
Crl. Appeal (J) No.108/2012
Crl. Reference (Hills) No.1/2012 Page 3 of 23
absconding accused Rajendra Chouhan in his Court. Accordingly, Sessions Case No.48/2005 was
registered. Charges under Sections 376/302/201 IPC were framed and the charges having been
explained to the accused, he pleaded not guilty and claimed to be tried.
[8] During trial, prosecution examined 11(eleven) witnesses and the defence adduced no
evidence. Up to PW-7, the numbering of the witnesses is in seriatim. It appears that listed
witnesses in the charge-sheet at serial Nos.8 and 9 were not examined and after examination of
PW-7, listed witness in the charge-sheet at serial No.10 was examined and during trial he is
referred to as PW-10. PW-11 and PW-12 were listed as witness Nos.11 and 12 in the charge-sheet.
Listed witness in the charge-sheet at serial No.13, who was the 1st Class Magistrate at Diphu, was
not examined and the last witness in the list of witnesses in the charge-sheet at serial No.14, who
was also examined, was numbered as PW-14.
[9] PW-1 is the father of the victim, who had deposed that his deceased daughter and son
(PW-2) had gone to witness Kali Puja in a temple situated about 1 furlong from his house. His son
came back at around 6:00/7:00 PM and informed them that the accused and his friends had
caught hold of them and while he managed to escape, his sister was confined by them. PW-1
stated that he did not take the matter seriously thinking that they had done so due to intoxication
but when she was not found in the next morning, they went in search of her. She was not found
in the village. They searched the jungle but there also she was not found. At around 8:00 AM,
they were informed by some villagers that they had seen the dead body of his daughter near the
Kakijan river. He along with his wife proceeded to the place whereupon they saw the dead body
lying near a canal close to the river. They brought the dead body to their house with the help of
villagers and later on lodged the Ejahar. Police came and held the inquest over the dead body and
sent the same to Diphu Civil Hospital for post-mortem. He also deposed that the accused
confessed before the villagers that he had killed his daughter.
[10] PW-2 is the brother of the victim girl, who had deposed that Petlu had caught hold of
him and had torn his shirt but he ran away leaving his sister and saw from a distance that the
accused along with 4/5 persons had taken away his sister. His sister did not raise any alarm. He
stated that he did not recognize anybody except Petlu. When he narrated the incident at home,
his parents thought it was a joke. In his cross-examination, he had stated that the occurrence had
taken place at around 8:00-9:00 PM and there was no light in the place of occurrence and he did
not see who had taken away his sister.
[11] PW-3 is the mother of the victim. She deposed that at around 8:00-9:00 PM, her son
and daughter had gone to attend Kali Puja and about an hour later, her son returned back home
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and told her that the accused had assaulted both of them and somehow he could escape. She did
not go out in search of X as she was alone and also thinking that she would return all by herself
but she did not come till next morning. She also deposed that when her husband arrived home
from the Puja, she told him about the occurrence. They went searching for X in the morning and
on the way, met one person called Bisahu (PW-4). On being informed that X had gone missing, he
told them that he had seen a dead body beside the Kakijan Nala but was unable to recognize
whether it was that of a boy or a girl. They then rushed to Kakijan Nala and found the naked dead
body of their daughter. They brought the dead body to their house and the husband went to
Bakalia Out Post and later on he came back along with police. She also deposed that the accused
had no clash with them. She identified Material Exhibit-1 to be the panty the deceased was
wearing on the night of occurrence.
[12] Bisahu Konwar (PW-4) had deposed that on the day of the occurrence, he was at "Ara
Kheti" and while returning home at around 6:00 AM in the morning, he saw a dead body of a girl
in naked condition near Kakijan river and accordingly, after reaching home, he informed the same
to the villagers. He also stated that when he met PW-1, PW-1 had told him that his daughter had
gone missing. Thereafter, PW-1 along with his wife and son went to Kakijan river and brought the
dead body to their house. He also deposed that later on he heard that accused, who was also
known as Feski, had raped and killed X.
[13] PW-5 deposed that PW-1 came to his house in the next morning of the day of
occurrence and told that X did not return back after she had gone to see Kali Puja along with her
brother (PW-2) and that he was searching for his daughter. When the dead body was recovered,
he went to the house of the father of the victim and at that time police was also present there.
About 15/20 days later, police came to his house along with the accused, Rabi Thakur (not
examined) and Mangal Keot (PW-6) and took him near the Kakijan river. He was asked to wait
some distance away from the river and after about half an hour, police returned along with a
polythene bag in hand containing a "jangiya". Police had prepared the seizure list in which he was
a witness.
[14] PW-6 stated that he did not know about the incident before arrival of the police, who
came along with the accused. He stated that police asked him, Prabhu Thakur (PW-7), Ram Ratan
Chouhan (not examined) and Kachuwa Chouhan (not examined) to go to the place of occurrence
and asked them to search the place. It is also stated by him that they found a "jangiya" at the
place of occurrence and Petlu showed the "jangiya" to them saying that it might have been thrown
away by Rajendra Chouhan. He also deposed that he signed on Exhibit-1.
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[15] PW-7 stated that police had brought the accused and he along with 4(four) villagers
accompanied them and the accused led them and showed a panty (jangiya) under a "Sonaru"
tree. Police asked Petlu about the frock and he responded by saying that he could not remember
where the frock had been thrown. Police had asked Petlu to pick up the panty and later on he put
his signature in the seizure list.
[16] PW-10 stated that while he was returning from tuition, he saw that a crowd had
assembled in the house of PW-1 and police was conducting inquest over her dead body and he
was asked to put his signature as a witness in the inquest report.
[17] PW-11 is the uncle of the victim, who stated that he came to learn from PW-1 that X
had gone missing and that he was searching for her. While he had left for the house of PW-1, on
the way he met PW-1, who was carrying the dead body of X. He then took the dead body from
PW-1 and carried the same to the house of PW-1. He also stated that the accused was absconding
from the village and after about 2(two) days, police arrested him. He was told by PW-1 that
accused had raped and killed X.
[18] PW-12 is a doctor, who conducted the post-mortem examination upon the deceased,
who was stated to be 8(eight) years old in the report. According to him, death was due to
strangulation of the neck. Relevant portion of the report is extracted herein below:-
"I) EXTERNAL APPEARANCE:
1. Condition of subject: The dead body of a minor girl, about 8 years old, is
lying in PM hall. Eyes partially open, mouth open and tongue slightly
protruded. The face and tongue is bluish, fists are half open. Pale trial
hemorrhages seen in conjunctivae, blood present in mouth and nasal
cavities. Rigor mortis absent.
2. Bruise: The subcutaneous fissure and muscles weak. The ligature mark
shows evidence of cetrymoris and hemorrhage. The hyoid bone is intact.
3. Mark of ligature on neck dissection etc: A ligature mark about 2-3 inches
found encircling the neck. Continuous with surface abrasions. The margin
also shows cehymoris. There is no imprint of the ligature.
II) CRANIUM AND SPINAL CANAL
......
III) THORAX
.......
IV) ABDOMEN
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........
8. Organs of generation: There is no pubic hair. No mark of injury in the inner thigh and no scribal stain. The vulva is swollen. The hymen is torn partially - Evidence of little blood mixed fluid at the vaginal orifice which is also edematous.
V) MUSCLES, BONES, JOINT -.............
VI) MORE DETAILED DESCRIPTION OF INJURY OR DISEASE: The victim, a minor
girl of about 8 years, was strangulated with some wide and soft material and was attempted rape.
VII) OPINION: In my opinion death was due to strangulation at the neck."
[19] PW-14 is the Investigating Officer of the case, who deposed that on 30.10.2003, Petlu surrendered before him and came to know that he along with Rajendra Chouhan had committed the crime. He had gone to the place of occurrence alongwith Petlu and had come to learn that the accused Petlu with the help of Rajendra Chouhan had tied and strangulated the neck of the victim but he could not find the rope but Petlu had led them to a place near the place of occurrence where a red colour "jangiya" was found. As during investigation, Petlu had confessed his guilt, he was forwarded to the Court to record his confessional statement. He had proved the seizure list (Exhibit-1), inquest report (Exhibit-2), sketch map (Exhibit-3), dead body challan (Exhibit-4), Ejahar (Exhibit-5), charge-sheet (Exhibit-6) and the post-mortem report (Exhibit-7).
[20] On consideration of the materials on record and the statement made by the accused in his examination under Section 313 Cr.PC recorded on 06.05.2010, the learned trial Court convicted the accused/appellant and sentenced him, as mentioned earlier. Perusal of the judgment also goes to show that before his examination under Section 313 Cr.PC, the accused stated to have filed a petition on 10.03.2010 pleading guilty. The learned trial Court relied on the confessional statement and the statement under Section 313 Cr.PC as well as the following circumstances appearing against the accused in convicting the accused/appellant. The circumstances which were taken note of by the learned trial Court, as recorded in paragraph 16, are extracted herein below:-
a) Victim X was forcibly taken away to the nearby jungle by the accused Petlu Konwar and other 4/5 persons as deposed by PW-2 in the evening of 23.10.2003 while victim X and her brother Y (PW-2) were proceeding from their house to witness Kali Puja in their village.Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 7 of 23
b) PW-2, Y, then came to his house and told the fact of taking away his sister X by accused Petlu Konwar and 4/5 other persons, to his mother Smti. Ramaya Keot (PW-3) and in turn to PW-1 Manu Keot i.e. the father of said X and Y.
c) The dead body of said X was found lying on naked state near a canal close to the Kakijan river and nearby the jungle from where she was taken away on the next day morning of the day of occurrence as stated by PW-2 Y as well as PW-4 Shri Bishahu Konwar.
d) Accused Petlu Konwar had surrendered at Bakalia OP on 30.10.2003 i.e. after 7 days from the day of occurrence while other co-accused Shri Rajendra Chauhan fled away.
e) Accused Petlu Konwar led the police to the P.O. from where police could recover the 'jangia' (panty) on being showed by the accused Petlu Konwar and the same was duly identified by Smti. Ramaya Keot i.e. the mother of victim X and PW-3 stating that her victim daughter went to witness Kalipuja with her brother Y in their village by wearing the said 'jangia'.
f) During interrogation by the I.O., accused confessed that he along with accused Rajendra Chauhan committed the offence of killing X immediately after his surrender before police.
g) Accused Petlu Konwar also confessed during recording his statement U/S 164 Cr.PC that he killed X.
h) At the time of examination of accused Petlu Konwar U/S 313 Cr.PC pointing the evidences recorded against him during trial, he admitted his guilt that he along with absconding accused Rajendra Chauhan killed X by strangulating her neck after committing rape on her. (Names of victim and her brother are replaced herein by X and Y, respectively).
[21] Mr. Biswas, learned Amicus Curiae has submitted that confessional statement made under Section 164 Cr.PC, which was not exhibited, ought not to have been relied upon by the learned trial Court as the accused was in the custody of the police all along including during the time for reflection, which was, even otherwise, not sufficient and the Magistrate did not make any searching enquiries from the accused. He has, however, submitted that it is not essential at all times to exhibit Section 164 Cr.PC statement and it is also not the requirement of law to examine the Magistrate under all circumstances as there is a presumption under Section 80 of the Evidence Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 8 of 23 Act that the Section 164 Cr.PC statement was a genuine statement and recorded in accordance with law. It is submitted that the Memorandum required to be affixed at the foot of the confessional statement is not found to be appended at the place, where it is required to be affixed and, therefore, the same being not in conformity with the mode prescribed for recording a confessional statement under Section 164 Cr.PC, the confessional statement, in the instant case, has lost its sanctity. Further submission of Mr. Biswas is that the examination of the accused under Section 313 Cr.PC was vitiated as, instead of providing opportunity to explain the incriminating materials appearing against him, questions were asked to him on the basis of surmises, conjectures and inferences. It is contended by Mr. Biswas that the learned trial Court was not correct in holding that the "jangiya" was recovered at the instance of the accused within the meaning of Section 27 of the Evidence Act. He has submitted that though it is not mandatory to record the statement of the accused under Section 27 of the Evidence Act, yet the statement of the accused must find place in the evidence on record. He has pointed out that, in the instant case, the statement of the accused is not on record and merely accompanying police and helping in the process of recovery of articles does not amount to recovery within the meaning of Section 27 of the Evidence Act. Though the cross-examination of the prosecution witness could have been better, merely on the ground that depositions of some of the witnesses had not been tested by way of cross-examination, the Court will not rely on the testimony of such witnesses, whose evidence is not consistent with the projected case of the prosecution, he contends. He submits that as the prosecution failed to prove the guilt of the accused beyond reasonable doubt, the impugned judgment of the learned Court below is liable to be set aside and the appellant be acquitted of the charges. In order to buttress his submissions, he has relied on the following judgments:
(i) N azir Ahm ad vs. King-Em peror, reported in AIR 1936 P C 253 (2), (ii) Aher Raja Khima vs. The State of Saurashtra, reported in AIR 1956 SC 217, (iii) Chaturbhuj P ande & Ors. vs. Collector, Raigarh, reported in AI R 1969 SC 255, (iv) State of Himachal P radesh vs. W azir Chand & Ors. reported in (1978) 1 SCC 130, (v) Juw arsingh & Ors. vs. State of M adhya P radesh reported in AI R 1981 SC 373, (vi) M adi Ganga vs. State of Orissa, reported in AI R 1981 SC 1165, (vii) Shivappa vs. State of Karnataka, reported in (1995) 2 SCC 76, (viii) Ranjit M ondal and Sajal Barui and etc., vs. State, reported in 1997 Crl. L.J (Cal) 1586, (ix) Paul Khum a Darlong vs. State of M eghalaya , reported in 2001 (1) GLT 487, (x) M ohan Singh vs. P rem Singh & Anr., reported in (2002) 10 SCC 236, (xi) Sankhi Chiba and Another vs. State of Arunachal P radesh, reported in 2008 (1) GLT 388 and (xii) R ajib P hukan and Anr vs. The State of Assam , reported in 2009 (2) GLT 414.Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 9 of 23
[22] Mr. T.J. Mahanta, learned Amicus Curiae in the Reference Case, has submitted that the evidence of PW-14 satisfies the requirement of Section 27 of the Evidence Act. According to him, there is no reason to disbelieve the testimony of PW-2. In Section 313 Cr.PC statement, the accused owned up that at the time of his first appearance before the Magistrate he had confessed that he had raped and killed X and, therefore, the argument of Mr. Biswas that the accused was not given enough time for reflection or that he was in custody of the police or that Section 164 Cr.PC statement was not properly recorded, are of no consequence. He has brought to the notice of the Court 2(two) judgments of the Apex Court on the subject of circumstantial evidence, namely, (i) M adhu alias M adhuranatha & Anr. vs. State of K arnataka, reported in (2014) 12 SCC 419 and (ii) Tom aso Bruno & Anr. vs. State of Uttar Pradesh , reported in (2015) 7 SCC 178 . According to Mr. Mahanta, the circumstances relied on by the learned trial Court point to the guilt of the accused alone and no other person and, therefore, the judgment of the learned trial Court may be confirmed.
[23] It is submitted by Ms. S. Jahan, learned Additional Public Prosecutor, Assam that assuming that there are some infirmities in the Section 164 Cr.PC statement, then also, no prejudice is caused to the accused as the accused, in his statement under Section 313 Cr.PC, again reiterated that he had confessed before the Magistrate and, therefore, infirmity, if there be any, pales into inconsequence. She has referred to Section 463 Cr.PC and submits that a Section 164 Cr.PC statement may be admitted if the Court is satisfied that non-compliance of provision of Section 164 Cr.PC in recording the statement had not injured the accused in his defence. She has relied upon a judgment in the case of Abdul Hakim Quadri vs. State of Assam , reported in 2011 (4) GLT 918 to contend that type-written format of Section 164 Cr.PC statement is a guideline, which is in consonance with the spirit of Section 164 Cr.PC. She has submitted that questions were put to the accused in his examination under Section 313 Cr.PC not on the basis of surmises and conjectures but on the basis of what was evident. While endorsing the submissions of Mr. Mahanta, she also submits that the fact that the accused had surrendered has to be taken note of as a relevant fact inasmuch as evidence on record establishes the fact that he was last seen together with the deceased. She has also placed reliance on a judgment of the Apex Court in the case of Bishnu P rasad Sinha & Anr. vs. State of Assam , reported in 2008 (2) GLT (SC) 1.
[24] In the instant case, the prosecution version is that PW-2 had identified the accused when he had taken the victim away. At the time of deposition in the year 2007, he was aged about 12(twelve) years and, therefore, at the time when the incident had occurred in the year 2003, he was about 8(eight) years old.
Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 10 of 23[25] It is established proposition of law that the evidence of a child witness cannot be rejected per se, but the evidence of child witness must be evaluated more carefully with closure scrutiny and circumspection because a child is susceptible to be influenced and swayed by what others tell him and thus, he may fall prey to tutoring. On being convinced about the quality and reliability of the statements of a child witness, conviction can be based by accepting the statement of the child witness. Corroboration of a testimony of a child witness is not a rule but a measure of caution and prudence. In Suryanarayana vs. State of K arnataka , reported in (2001) 9 SCC 129 , the Apex Court upheld the conviction on the basis of evidence of a sole eye witness, who was 4(four) years at the time of incident and 6(six) years at the time of her deposition, as her evidence was found to be truthful and inspiring besides being corroborated in material particulars.
[26] From the evidence of PW-2, we find that he had described the events leading up to X being taken away in the logical manner. We find his testimony to be truthful and reliable and are convinced that his evidence is not as a result of any tutoring. Though in his cross-examination, he had stated that it was a dark night and there was no light at the place of occurrence, he was categorical that the appellant had caught hold of him. The appellant was known to PW-2 and, therefore, in such close proximity, it will be possible for a person to identify a known person. As he ran away leaving his sister behind, he had truthfully stated that from a distance he could not actually see who had taken away his sister. But his evidence is clear that the appellant was present along with some others and thus, he was one of the persons who was last seen together with the deceased. PW-2, on his return home, had narrated the incident. It appears from the evidence of PW-3 that PW-1 was not at home when PW-2 had told about the incident to his mother. PW-3 had informed her husband, PW-1, when he returned back home. PW-1 also stated that his son had informed him about the aforesaid incident. PW-3 not mentioning that PW-2 had stated about the incident to his father is an omission and does not impure the prosecution case. The matter was apparently taken very lightly by the parents so much so that they considered it to be some kind of a joke, as stated by PW-2.
[27] Though there is some difference in respect of time at which they had gone out to see the Puja - PW-1 having put the time at 6:00-7:00 PM and PW-3 stating to the time to be 8:00- 9:00 PM, the same may not be of much consequence as it is clear that it was dark when they had gone out.
[28] The version put forward by PW-2 gain momentum after dead body of X was recovered and it appears that the appellant had run away from the village and attempts to apprehend him proved futile. However, the appellant surrendered at Bokolia Out Post on 30.10.2003.
Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 11 of 23[29] The learned trial Court had relied on confession made by the appellant before police as a circumstance in the chain of circumstances pointing to the guilt of the accused. Confession before police is not admissible in evidence under Section 25 of the Evidence Act and, therefore, such confession is to be excluded from the purview of consideration.
[30] The learned trial Court had also held that there was leading to discovery. While considering the scope of Section 27, what needs to be borne in mind is that the first condition, which is necessary in order to apply Section 27 is that there must be discovery of a fact, albeit a relevant fact, in consequence of information received from a person, who is accused of an offence. The second condition for application of Section 27 is that the discovery must be deposed to. This, in turn, means that the factum of discovery has to come on record by way of evidence and not otherwise. The third condition is that at the time of receiving the information, the accused must have been in police custody. The fourth, but, perhaps the most important condition is that only 'so much of the information', as relates 'distinctly' to the 'fact thereby discovered', is admissible. The rest of the information, which an accused person might have given, must be kept excluded. The meaning of the expressions, 'so much of the information', and 'distinctly', have been subject of interpretation of a number of judicial pronouncements. The expression, 'so much of the information', means only that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery.
[31] In R ajib P hukan (supra), the question that had fallen for consideration was as to whether a statement, which is popularly known as "disclosure statement", must be reduced into writing in order to make such a statement admissible in evidence under Section 27 of the Evidence Act. It was held that though a written record of the statement made by the accused leading to discovery of a fact is not necessary in order to make the statement admissible in evidence, there must be evidence on record to show that before discovery of fact took place, a statement was made by the accused, though such statement may not have been reduced into writing. It is also held evidence relating to recovery is acceptable even when non-official witnesses do not support the recovery and make departure from the statements claimed to have been made by them during investigation. Where the evidence of the investigation officer, who recovered the material objects, is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. The court observed that in order to enable the court to safely rely on the evidence of the investigating officer, it is necessary that the exact words, attributed to an accused, a statement made by him, be brought on record and, for this purpose, it is advisable to reduce into writing the disclosure statement before any recovery is made.
Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 12 of 23[32] If the accused merely accompanies a police officer and helps in the recovery of an incriminating piece of evidence or points to the place, where the stolen article is found, section 27 will not be attracted if there is no evidence to the effect that the accused had made any statement, which had led to the discovery of the fact. The pointing of the place where the stolen article was found, may, in such a case, be relevant in terms of Section 8 of the Evidence Act as conduct of the accused.
[33] From the evidence of the Investigating Officer (PW-14), it appears that PW-14 did not depose that a statement was made by the accused in the nature of a disclosure statement but only stated that the appellant had led them to a nearly place of occurrence where they found a red colour 'jangiya'. Evidence of PW-5 shows that PW-5 was not present during the time when seizure was made, as he was left behind some distance away by the police and that he saw the seized item, the 'jangiya', after about half an hour later when the police returned. Evidence of PW-6, a seizure witness, goes to show that the appellant had indicated that the 'jangiya' might have been thrown by his co-accused, Rajendra Chouhan. The 'jangiya' was lying in the place of occurrence and it appears from his statement that even the appellant was not sure how the 'jangiya' was lying there and, therefore, there could not have been any disclosure statement with regard to the 'jangiya' by the appellant. PW-7 had stated that the appellant had led them and shown a 'jangiya' under a 'Sonaru' tree. Going by the evidence on record, it does not appear to us that in the facts and circumstances of the case, Section 27 of the Evidence Act is attracted and we are of the opinion that the appellant had helped in recovery of the 'jangiya'.
[34] The appellant was stated to have confessed that he had killed X when he recorded his statement under Section 164 Cr.PC. For our purpose, Section 164(2) Cr.PC and 164(4) Cr.PC are relevant and they are quoted herein below:
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 13 of 23
'I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence agiasnt him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
Signed A.B. Magistrate' [35] Sub-Section (2) of Section 164 Cr.PC would go to show that before recording a confession, the Magistrate has to explain to the person making it clear that he is not bound to make a confession and that if he does so, it may be used as evidence against him. Part of sub- Section (2) provides that the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that the confession was being made voluntarily. This necessarily obliges the Magistrate to put some questions to the person, who is about to make confession, to ascertain as to whether the confession is being made voluntarily. Section 164(4) provides that the Magistrate shall sign a certificate at the foot of the confessional statement that he believed that the confession was voluntarily made.
[36] Section 463 Cr.PC provides that if any Court, before which confession or other statement of an accused person is recorded or purporting to be recorded under Section 164 Cr.PC or Section 281 Cr.PC , is tendered or has been received any evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872, take evidence in regard to such non-compliance and may, if satisfied that such non- compliance has not injured the accused in its defence on the merits and that he duly made the statement recorded, admit such statement.
[37] Voluntariness in recording the confession is the core of Section 164 Cr.PC and we are of the opinion that Section 463 Cr.PC cannot be pressed into service where non-compliance of provisions of Section 164 Cr.PC creates doubts in the minds of the Court as to whether the confession recorded under Section 164 Cr.PC was voluntary in nature.
[38] In M adi Ganga (supra), the Apex Court had held that Section 80 of the Indian Evidence Act make the examination of the Magistrate unnecessary and it authorises the Court to presume that the document is genuine, that the statement as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law. The Apex Court, considering the facts and circumstances of the case, opined that no circumstance had been brought out in the evidence justifying the calling of the Magistrate as a witness. In the aforesaid Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 14 of 23 case, the Supreme Court found that the learned Magistrate had put to the accused all the necessary questions to satisfy himself that the confession was voluntary and it also appended the necessary certificate. In Sankhi Chiba (supra) a Division Bench of this Court had proceeded to examine a confessional statement which was not exhibited and ultimately held that the confessional statement so recorded was not in consonance with the provision of law stipulated under Section 164 Cr.P.C. In Paul K hum a Darlong (supra), neither the 164 Cr.PC statement was exhibited nor the Magistrate was examined. The court proceeded to find out as to whether the confessional statement fulfilled the requirement under Section 164 Cr.PC and recorded the finding that the defects found in the process of recording such statement cast a serious doubt as to whether the confession made was voluntary or not.
[39] A Division Bench of this Court, in the case of Abdul Hakim Quadri (supra), had noted that the format of recording confessional statement is only a guideline in consonance with the spirit of Section 164 Cr.PC to read the mind of the accused and to ascertain that the indictable statement was not given under the duress, threat or influence of any person. It was observed that the guideline should be followed in letter and spirit and sundry infractions or breach of the format will not render the statement inadmissible in evidence.
[40] From the language of Section 164 Cr.PC and the guidelines framed by the High Court regarding the recording of confessional statement of an accused under Section 164 Cr.PC, it is clear that an obligation is cast on the Magistrate to make an enquiry to ascertain the voluntary nature of the confession. The enquiry is a significant and important part of duty of the Magistrate recording the confessional statement of an accused under Section 164 Cr.PC. Confession cannot be used against an accused person unless the court is satisfied that it was voluntary. At that stage the question whether it is true or false does not arise. It is abhorrent to the concept of justice and fair play to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realizes that anything he says may be used against him and therefore, the recording of a confession is hedged around with procedural safeguards and is the reason why the Magistrates ordinarily allow a period of time for reflection and the accused is put out of the reach of the investigating police before he is allowed to make his confession.
[41] Before proceeding to record the confessional statement, searching questions must be made by the Magistrate in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should particularly be asked the reason why he wants to make a statement which Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 15 of 23 may go against his self-interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of sub-section (2) of Section 164, namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement and be given the assurance that even if he declined to make the confession, he shall not be remanded to police custody. This is the essence of a voluntary statement within the meaning of Section 164 Cr.PC. The role of the Magistrate does not end there. He should not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with. {See Shivappa (supra), Aher Raja Khima (supra), Nazir Ahmed (supra)}.
[42] The form in question where the confession was recorded, we cannot help but observe, was full of mistakes. From the order sheet of the court it appears that the accused was produced from police custody at 12:00 Noon. The confessional statement was recorded at 3:00 PM and therefore, it would appear that the period from 12:00 Noon to 3:00 PM was given for reflection. In the confessional statement, it was recorded that he was arrested at 1:10 PM of 24.10.2003. It is to be noticed that ejahar was received at Bakalia Out Post at 1:10 PM of 24.10.2003 and the evidence of PW-14, the Investigating Officer goes to show that on 30.10.2003 only, the accused had surrendered before him and therefore, it is clear that date of arrest of the accused was wrongly recorded in the said statement. The Magistrate recorded the statement was voluntarily made by the accused on the ground that the accused was calm and quiet and seemed to be without any pressure. It appears that he also recorded that the accused was aware that he was not making confession in front of police, but to a Magistrate and that his voluntary confession can go against him in due course of law. The Memorandum/Certificate of the Magistrate was in Form No.4, whereas the confession was recorded in Form No.3. However, Form No.4 was, inadvertently, put before Form No.3. The same, according to us, will not invalidate the confessional statement. He recorded the statement as follows:-
"I have been residing in the above mentioned place since my childhood and I am a daily wage earner. On 22nd October/2003, at 7.00 P.M., I have killed the girl, late Miss Gita Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 16 of 23 by holding her breath in the neck area with my bare hands. The incident was the result of some envy of the girl on myself since my childhood and I was also threatened by her with life danger, which had made me killed her. Then on the next day, my father handed me over to the police.
The above mentioned statements and facts are true to the best of my knowledge and belief."
[43] Order-sheet of the trial Court reveals that the Magistrate, who had recorded the confession, had expired and, therefore, he could not be examined. We are of the opinion that the confession is voluntarily made. However, the date of commission of the crime and date on which his father produced him before the police is not correctly stated. The incident occurred on 23.10.2003 and his date of surrender is 30.10.2003. In such statement he had also not referred to commission of rape.
[44] It is now well settled that in order to sustain the conviction on the basis of a confessional statement it is sufficient that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. The Inquest Report (Ext. 2) shows that there is a blackish line mark on the neck. Medical report is also corroborated with the fact that the victim, who was a minor girl of eight years was strangulated with some white and soft material and was attempted rape.
[45] We are not inclined to agree with the submission of Mr. Biswas that the accused was not put incriminating materials appearing against him in his examination under Section 313 Cr.PC. For better appreciation, the entire examination of the accused under Section 313 Cr.PC is reproduced herein below:
"Q No.1. It is evident that on 23/10/2003 at about 5.30 to 6.30 p.m. at Sarupathar Ganapath Basti, you along with others forcibly took away Kumari X Keot, age about 8/9 years to the nearby jungle while the victim girl was proceeding along with her brother Y from their house to see Kalipuja in their village. What do you have to say on it?
Ans. Yes, the fact is that on the said day, I met Y and his sister X Keot at a injunction of our village while they were going to visit their "mama's" house. On meeting, both X and Turung started using foul language in my family's name as I worked in their house as 'halluwai'. On this, I charged Turung who, however, fled away. Then I and Rajendra Chouhan, the other co-accd. of this case, took away Smti. X to nearby jungle.
Q No. 2. It is also evident that after taking away the said Kumari X Keot, you along with others forcibly committed rape on her. What do you have to say on this allegation?Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 17 of 23
Ans. I want to say that Smti. X Keot was first raped by Shri Rajendra Chouhan who had also insisted me to rape on X and accordingly, I did.
Q No. 3. It is further evident that after committing rape on said Kumari X Keot, you along with others committed murder to said X by strangulating her neck with a rope. What do you have to say on its?
Ans. Yes, after committing rape, my co-accd. Rajendra Chouhan killed X Keot by strangulating her neck with a rope causing her death. It is a fact that, I helped Rajendra Chouhan in this regard.
Q No. 4. It is also evident that after committing murder of the said X Keot, you along with other had concealed the dead body in the jungle to disappear the evidence knowing the fact that the offence is punishable u/s 302 IPC what do you have to say on it?
Ans. Yes, we both dumped the dead body of X Keot by the side of a nulla to disappear the evidence.
Q No. 5. It is further evident that you had surrendered before the police at Bakalia O.P. on 30/10/2003 after committing the offence. What do you have to say on it?
Ans. Yes, I surrendered at Bakalia O.P. after a week from the day of incident and filing of complaint, but my co-accd. Rajendra Chouhan did not surrender.
Q No. 6. It is also evident that the red colour 'jangia' which was worn by the victim was recovered from the P.O. on being led to police by you. What do you have to say on it.
Ans. Police seized the red colour 'jangia' from the P.O. which was worn by X at the time of incident on being led and shown by me.
Q No. 7. It is further evident that you submitted a petition from custody on 12/03/2010 pleading your guilt. Did you plead the guilt voluntarily?
Ans. Yes, I voluntarily submitted the guilty plea petition on 12/03/2010 repenting for the offences committed by me.
Q No. 8. It is also evident that you confessed your guilt at the time of your first appearance before the Magistrate at Diphu. What do you have to say on it?
Ans. Yes, I confessed to have raped and killed X Keot at the time of my first appearance before the Magistrate.
Q No. 9. Do you want to say anything more relating to this case? Ans. Yes, I have something to say. Earlier, I lived in the house of the complt. Monu Keot i.e. the father of the victim girl for about 7 (seven) years and I worked there as 'halluwai'. I had left the Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 18 of 23 house of Monu Keot about 4 (four) years before the incident. I was given 2½ bighas of land by Monu Keot to cultivate on 'Adhi' basis and accordingly, I cultivated sugarcane there. But, Monu harvested the sugarcane without giving any intimation to me and prepared 3 (three) tin 'gur' and sold it. Subsequently, quarrel also took place between us over this issue prior to this incident of rape, killing of X. Besides, the incident was the result of some envy of the girl on myself since my childhood and I was also threatened by her with life danger. I had no intention to commit rape or killing of X Keot."
[46] It is an established proposition of law that the attention of the accused must be specifically invited to inculpatory evidence or circumstances appearing on record against him with a view to giving him an opportunity to offer an explanation if he chooses to do so. Section 313 Cr.PC imposes a duty to take care to ensure that the incriminating circumstances are put to the accused and his response solicited. The very purpose of examination of the accused under Section 313 Cr.PC is to give the accused an opportunity to explain the incriminating material which is laid on record by the prosecution and therefore, obviously, questions cannot be in the form of cross- examination.
[47] The Apex Court in the case of Tara Singh vs. the State of Punjab , in the context of Section 342 of the Criminal Procedure Code, 1898, had stated that the accused must be questioned separately and simply about each material circumstance which is intended to be used against him, so that a person, who is facing a trial and whose mind is apt to be perturbed or a person, who is illiterate, can readily appreciate and understand the same. It was observed that every error or omission in this behalf does not vitiate a trial because the errors of this type fall within the category of curable irregularities. In the above context, the question in each case depends upon the degree of the error and upon whether prejudice had been occasioned or is likely to have been occasioned.
[48] In R anjit M andal (supra), because of a substantial number of questions put to the accused persons relating to vital and important incriminating circumstances being not in conformity with the principles and guidelines laid down by the Apex Court, this Court had set aside the conviction and sentence with a direction to examine the accused afresh under Section 313 Cr.PC in accordance with law.
[49] In W azir Chand (supra) the Apex Court had laid down that the accused is to be questioned with regard to the circumstances appearing against him in evidence and not the inference that flows from the circumstances.
Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 19 of 23[50] The statement made by the accused under Section 313 Cr.PC can be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 Cr.PC cannot be made the sole basis of his conviction. Statement under Section 313 Cr.PC can either be relied on in whole or in part and it may be possible to rely on the inculpatory part of the statement of the accused if the exculpatory part is found to be false on the basis of the evidence laid by the prosecution. Though the statement of the accused under Section 313 Cr.PC is not a substantive piece of evidence, it can be used for appreciating evidence led by the prosecution to accept or reject it. However, it cannot be a substitute for the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 Cr.PC cannot be made the sole basis for his conviction. It is obligatory on the part of the accused while being examined under Section 313 Cr.PC , to furnish some explanation with regard to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence to decide whether or not the chain of circumstances is complete. {See Mohan Singh (supra), Madhu (supra)} [51] A perusal of the questions put under Section 313 Cr.PC and the answers given by the accused would go to show that the accused had understood the questions asked as he had responded to the questions in appropriate manner. However, we are of the opinion that some of the questions were based on inferences flowing from circumstances. For example, there was no evidence of the accused forcibly committing rape and yet question No.2 was asked. It is another matter that medical report suggested attempt to rape and therefore, the framing of the question was not correct. Question No.7 is most irrelevant as nobody had deposed about the accused submitting a petition from custody on 12.3.2010 pleading guilt and, therefore, it was not a circumstance appearing against him in the evidence on record to be put to the accused. The framing of questions could, undoubtedly, have been better. However, the basic incriminating material against the accused, namely, taking away of the victim, recovery of the 'jangia', confessional statement made by him before the Magistrate and his surrender before Bakalia Police Outpost were put to him. We are of the opinion that no prejudice was caused to the accused on account of manner of his examination under Section 313 Cr.PC.
[52] Even in his statement under Section 313 Cr.PC, the appellant had reiterated that he had confessed before the Magistrate, on his first appearance, that he had killed X. He had also confessed that he had raped X. However, same is not reflected in the confessional statement. In Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 20 of 23 Section 313 Cr.PC statement, he had stated how at first Rajendra Chouhan and later on by him committed rape on X. He also attributed helping Rajendra in strangulating X. Such statement by the appellant reinforces the voluntariness of the confessional statement.
[53] A confessional statement, as is well known, is admissible in evidence. It is a relevant fact. The court may rely thereupon if it is voluntarily given. It may also form the basis of the conviction, wherefore the court may only have to satisfy itself in regard to voluntariness and truthfulness thereof and in given cases, some corroboration thereof. A confession which is not retracted even at a later stage of the trial and even accepted by the accused in his examination under Section 313 of the Code, in our considered opinion, can be fully relied upon.
[54] There cannot be any dispute in respect of the settled legal proposition that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provision enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure a fair play and fairness in dealing with witnesses. In Juw arsing (supra), the Apex Court had, however, laid down that if the oral testimony of certain witnesses is contrary to proved facts their evidence might well be discarded on that ground. If their testimony is on the face of it unacceptable, courts are not bound to accept their testimony merely because there was no cross- examination.
[55] In Chaturbhuj Pande (supra), in the context of a proceeding under Land Acquisition Act, 1894, the Apex Court had observed that merely because the Collector had not adduced any evidence in rebuttal does not mean that the court is bound to accept the evidence of the claimants Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 21 of 23 as in assessing value to be attached to oral evidence, the Judges are bound to call into aid their experience of life. This case cited by Mr. Biswas is not relevant for the purpose of this case.
[56] In every case based on circumstantial evidence, the question that needs to be determined is whether the circumstances relied upon by the prosecution are proved by reliable and cogent evidence and whether all the links in the chain of circumstances are complete so as to rule out the possibility of innocence of the accused. It has consistently been held that a conviction can be based solely on circumstantial evidence. The prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are complete in themselves. The fact so established should be consistent only with the hypothesis of the guilt of the accused. While appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, so as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. Where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. [see M adhu (supra) and Tom aso Bruno (supra)] [57] On the evidence on record and in view of the discussions above, we are of the considered opinion that guilt of the appellant is well established. Accordingly, we confirm the judgment dated 23.07.2012 passed by the Deputy Commissioner, Karbi Anglong, Diphu. The appeal preferred by the appellant is dismissed.
[58] Before parting, we record our appreciation for the assistance rendered by Mr. M. Biswas, learned Amicus Curiae appearing for the appellant. He will be entitled to a fee of Rs.7,500/- (Rupees Seven Thousand Five Hundred), which will be paid by the Assam State Legal Services Authority.
Crl. Appeal (J) No.108/2012 Crl. Reference (Hills) No.1/2012 Page 22 of 23 [59] Registry will send back the records.
JUDGE JUDGE
M. Sharma/Madhu
Crl. Appeal (J) No.108/2012
Crl. Reference (Hills) No.1/2012 Page 23 of 23