Gauhati High Court
Debaru Hemram @ Bohira Hamron vs The State Of Assam on 4 February, 2019
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
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GAHC010205962016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 76/2016
1:DEBARU HEMRAM @ BOHIRA HAMRON
VERSUS
1:THE STATE OF ASSAM
2:SRI BITESWAR MURMU
S/O-LT. LAKHIA MURMU
VILL-NAGAPATHAR GAON
P.S.-MISSAMARI DIST.-SONITPUR
ASSAM
Advocate for the Petitioner : MR.R BORUAH
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
JUDGMENT & ORDER
Date : 04-02-2019
Mir Alfaz Ali, J.
1. This appeal is directed against the judgment and order dated 27.01.2016 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 191/2012. By the said judgment, the appellant was convicted under Section 302 IPC and sentenced to imprisonment for life and fine of Rs. 5000/- with default stipulation.
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2. As per prosecution case, on 16.01.2011, at about 4 O'clock in the evening, the wife of the informant went to her sons' house to provide some cakes prepared on account of Bihu and thereafter, she was missing. On the next day, her dead body was found lying in a paddy field. Accordingly, the husband of the victim lodged the FIR (Ext.2), on the basis of which, Misamari P.S. Case No. 13/2011 under Section 302/201 IPC was registered. During investigation, the present appellant was arrested and his confessional statement was recorded by the Judicial Magistrate. Postmortem examination was conducted by PW-7, Dr. Teg Bahadur Chetri. The PW- 7, who conducted the postmortem examination, found the following injuries on the body of the victim.
"1. Left eye is swollen and sub-conjunctival haemorrahage is seen.
2. A lacerated wound is seen on the forehead. Size 2 inch x 1 inch x 1 inch.
3. Frontal bone is fractured.
4. Sub-dural haematoma present.
5. 4th to 8th ribs of both sides of chest are fractured.
6. Both lings are lacerated.
All the injuries found in ante-mortem in nature"
3. The confessional statement, Ext.5 was recorded in vernacular by the Judicial Magistrate (PW-8). The confessional statement translated into English reads as follows:
"On the Sunday before last Sunday at about 6.30 p.m. I was coming back to my house from work. On the way, I met an old lady whom I knew but I do not know her name. She asked me as to from where I had come. I told her that I am coming back from my work. On that she told me that "on this Bihu day also you have to go to work". On hearing this, I became angry and as I had earlier grudge against that lady, I pressed her neck, and gave her fist blows on her breast and head and killed her. When she died I picked up her dead body on my shoulder and carried it to a distance, thereafter, I put it on the ground and dragged the dead body to a nearby field and left it there. The deceased woman was suspected to be a witch ("dainee") by the villagers and I also believed that the said witch is the cause of the death of my father and my five year old daughter and therefore, I killed her. The village people also said that as she was a witch she can cause harm to others by reciting "Mantras" and I suspected that she, by reciting such "Mantras", killed my father and my daughter. She also had altercation with my father earlier and I thought that she killed my father and daughter and therefore, I killed her."
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4. After completion of investigation, charge sheet was laid against the present appellant under Section 302 IPC. In course of trial, prosecution examined as many as 16 witnesses to establish the charges. On conclusion of evidence, the accused appellant was examined under Section 313 CrPC, wherein, he pleaded innocence. The accused also retracted from the confession and stated that he made the confession before the Magistrate, as he was tortured before sending him to Magistrate for recording confession. He also took the plea of alibi during examination under Section 313 CrPC, however, did not adduce any evidence in his defence. On appreciation of the evidence, learned Sessions Judge convicted the appellant under Section 302 IPC and awarded sentence as indicated above.
5. We have heard Ms. R.D. Majumdar, learned amicus curiae for the appellant and learned Addl. P.P., Ms. S. Jahan for the State respondent.
6. On scrutiny of the evidence and materials on record, we find that out of the 16 witnesses examined by the prosecution, PW-1, the informant and his two sons, PW-2 and PW- 5 deposed, that the victim went to the house of her son to provide some cakes in the afternoon and thereafter she was missing. On the next day i.e. 17.01.2011 , her dead body was noticed in a paddy field by the villagers. The oral testimony of PW-3, PW-4 and PW-6 was to the effect that they came to know that the victim Japori Murmu was missing and on the next day, her dad body was found in the paddy field. The PW-9, PW-10, PW-11, PW-12 and PW-14 stated about confession made by the appellant before police and PW-13 was declared hostile. However, nothing material could be elicited from the testimony of PW-13, which could be of any help to the prosecution. What therefore evident is that the learned Trial Court convicted the appellant solely on the basis of the confessional statement of the appellant, which was proved as Ext.5.
7. Learned amicus curiae assailing the conviction and sentence of the appellant submitted, that the confession was not voluntary as the appellant was not given sufficient time for reflection and the learned Judicial Magistrate hastily recorded the confession, which was later on retracted by the appellant. The specific contention of Mrs. Das Majumdar was that when the accused/appellant was produced before the learned Magistrate for the second time and confession was actually recorded, the accused was not given any reflection time, and as such, Page No.# 4/10 the confession could not be considered as voluntary. Therefore, conviction and sentence of the appellant, solely on the basis of such confession cannot be maintained, submits, learned amicus curiae. Learned Addl. P.P. supporting the impugned judgment submitted, that the confession did not suffer from any infirmity, and as such, there is no difficulty in basing conviction solely on the confessional statement.
8. The law is well settled that confession is an efficacious proof of guilt, and there is no bar in recording conviction solely on the basis of the confessional statement, if the confession is found to be true and made voluntarily. The Apex Court in Sankaria Vs. State of Rajasthan, reported in AIR 1978 (SC) 1248, a three Judges Bench, held as follows:
"23. This confession was retracted by the appellant when he was examined at the trial under Section 313 Cr. P.C. on June 14, 1975. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands a conviction of the accused, primarily on the basis of his confession recorded under Section 164 Cr. P.C., the Court must apply a double test :
(1) Whether the confession was perfectly voluntary? (2) If so, whether it is true and trustworthy?
Satisfaction of the first test is a sine quo non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in Section 24 Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession, may be indicated. The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test."
9. Therefore, once the confessional statement withstood the twin test as above and the court is satisfied that confession is perfectly voluntary and trustworthy, it may form the basis of conviction without any corroboration from any independent witness. Because corroboration is not the rule of evidence, but only a rule of prudence and practice, and as such always depends on the facts and circumstances of each case. If the court is fully assured, that the confession is voluntary and true, there is no impediment in basing conviction on the confessional statement alone.
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10. Now let us see whether the confession in the present case withstood the twin test of voluntariness and trustworthiness. PW-8, the learned Judicial Magistrate, who recorded the confession deposed, that as per order of the Chief Judicial Magistrate, the accused alongwith the record was produced before him on 25.01.2011. Learned Magistrate further stated, that upon production of the accused, he cautioned the appellant and apprised him about the legal consequence of making confession. According to him, the accused was prepared and willing to make confessional statement, but he remanded the accused/appellant to judicial custody for reflection and directed to produce him on 27.01.2011. On 27.01.2011, when the accused was produced before him, he again cautioned the accused about the legal consequence of making confessional statement as per requirement of Section 164(2) CrPC and told him, if he makes confession, the same would be used in evidence against him and that he was not bound to confess, whereupon he expressed his willingness to make confessional statement and thereafter the learned Magistrate recorded confessional statement, which has been proved as Ext.5. During cross examination of PW-8, it was further confirmed, that on production of the accused appellant on 25.11.2011, the learned Magistrate cautioned the accused appellant about the legal consequence of confessional statement by putting necessary questions to the appellant as per requirement of Section 164 CrPC. The learned Magistrate also stated, that as regards informing the accused about the consequence of confession and warning given to him, have been reflected in the order sheet. It was also elicited during cross examination that the learned Magistrate explained all questions elaborately in vernacular (Assamese) to the understanding of the accused and he specifically asked the accused appellant as to why he wanted to confess. We have seen a relevant order passed by the learned Magistrate on the first day i.e. 25.1.2011, when the accused was produced by police for recording confession. The order passed by the learned Magistrate on 25.01.2011 reads as follows:
"C.R. received on transfer for recording confessional statement of the accused person.
Accused Debaru Hemram produced before me at 2.30 p.m. today. Explained to him that he is not bound to make confessional statement and that if does so, it may be used against him. Questioned him as to why he had killed the deceased and why he now wants to confess etc. to confirm his voluntariness. He was arrested yesterday and was in police custody for more than a day, hence, he is given a reflection period of one day to think over.
Send him to jail till 27.01.2011.
Fix 27.01.2011 for production."
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11. The order passed by the learned Magistrate on 25.01.2011 shows that, when the accused was produced for the first time for recording confession, learned Magistrate duly cautioned the accused, as regards the consequence of confession and that he was not bound to make confession as per requirement of Section 164(2) CrPC and remanded him to judicial custody for reflection. Thereafter the accused was produced on 27.01.2011 for recording confession.
12. Ext.5, the confessional statement recorded by the learned Magistrate transpires that on 27.01.2011, the appellant was produced before him at 1.30 PM for recording confession. The order passed by the learned Magistrate on 27.01.2011 and the Ext.5, the confessional statement demonstrate, that the accused was again cautioned by putting all necessary questions and explaining the consequences of confession as per requirement of Section 164 CrPC and the rule made by the High Court. On being satisfied, that the accused was willing to make confession voluntarily, learned Magistrate recorded his confession. It is also recorded in Ext.5, that no injury was noticed on the person of the accused. Learned Magistrate specifically asked the appellant, whether he was threatened by police to make confession or he was influenced by any one for making any confession, to which the accused replied in negative. The accused was also apprised by the learned Magistrate that the confession made by him shall be used against him in evidence. Learned Magistrate further asked, as to why he was willing to confess, to which the accused answered that "I have killed that is why I want to confess." Learned Magistrate also assured the appellant that he would not be send back to police again, even if, he does not make confession. Eventually the confession (Ext.5) was recorded on 27.01.2011. The sequence of events from the production of the accused on 25.01.2011 till recording his confession by Magistrate on 27.01.2011 as deposed by the learned Magistrate finds support from the Ext.5, the confessional statement format and the relevant orders passed by the learned Magistrate. Thus, the oral testimony of the learned Magistrate and the Ext.5 makes it amply clear, that the learned Magistrate took all pre-cautions to ascertain the voluntariness of the accused in making the confession. We find no reason for disbelieving the evidence of the learned Judicial Magistrate, who recorded the confession in his official capacity. Learned Magistrate has also given necessary certificate as per requirement of Section 164 (4) CrPC, wherein he has clearly mentioned that having been satisfied that the accused made the confession voluntarily, he recorded the confession.
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13. Learned amicus curiae submitted, that no time was given to the accused for reflection on 27.01.2011, when the confession was actually recorded and the learned Magistrate recorded the confession hastily. From the Ext.5 and the evidence of PW-8, it is evident that learned Magistrate after cautioning the accused as per Section 164 (2) CrPC, send him to jail custody at 2.30 PM on 25.01.2011 for reflection till 27.01.2011 and he was again brought before the Magistrate at 1.30 PM on 27.01.2011 for recording confession. Therefore, it is clear that the accused was given two days (47 hours) for reflection and he had spent two nights in judicial custody. Before sending him to judicial custody, learned Magistrate adequately cautioned him about the consequence of confession as per requirement of Section 164 (2) CrPC. After 47 hours of judicial custody when the accused was brought on 27.01.2011, the Magistrate again cautioned him and upon being satisfied about his voluntariness to make confession, learned trial Magistrate recorded the confession.
14. There is no inflexible rule or statutory requirement of specific duration of time for reflection. The settled principle is that time given to the accused should be reasonable, so as to enable the accused to free his mind from any influence of police or any other influence. Because the ultimate object and purpose of giving time for reflection is to provide opportunity to the accused to think over the matter, whether to make or not to make confession and to ensure, that accused is completely free from influence or fear of police. The Apex Court in Sankaria (supra) dealing with the object of reflection and time to be given for reflection held in para-43 and 44 as under.
"43. In Sarwan Singh Vs. State of Punjab (supra) this Court had emphasised that before recording a confession, the Magistrate should see that the mind of the accused person was completely free from any possible interference of the police. In that context, it was observed that "the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all." In this connection, it was suggested : ".......... speaking generally, it would, we think, be reasonable to, insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession." The Court was careful enough to preface this suggestion with the remark that "it would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case." (emphasis added).
44. It will be seen that how much time for reflection should be allowed to an accused person before recording his confession, is a question which depends on the circumstances of each case. The object of giving such time for reflection to the accused, is to ensure that he is completely free from police influence. If Page No.# 8/10 immediately before the recording of the confession, the accused was in judicial custody beyond the reach, of the investigating police for some days, then such custody from its very nature, may itself be a factor dispelling fear or influence of the police from the mind of the accused. In such a case, it may not be necessary to send back the accused person for any prolonged period to jail or judicial lock-Up. In the instant case, the accused was got admitted to the judicial lock-Up on the 12th June for getting his confession recorded under Section 164 Cr. P. C., and such admission was made under the orders of the Magistrate who ultimately recorded his confession on the 14th June. The accused was for about two days in judicial custody beyond the reach of the police. On June 13, 1974, a written request was made to the Magistrate by the police, for recording the confession of the accused. Even then, the Magistrate postponed the recording of the confession till the following day, obviously because he wanted to give the appellant one day more in judicial custody to ponder over the matter free from Police influence. On the 14th June, notwithstanding the fact that the accused Shankaria was in judicial custody from the evening of the 12th June after the preliminary questioning, the Magistrate allowed 15 minutes more to him for reflection. Thus considered, Shankaria bad, as a matter of fact, about 38 or 40 hours in judicial custody, immediately preceding the confession, and this was rightly considered sufficient to secure freedom from fear or influence of the Police to him (Shankaria)."
15. In the present case the accused was sent to judicial custody for reflection for 47 hours before the confession was actually recorded. There is no evidence on record to show, that during the said reflection period of two days (47 hours), any police personnel connected with the investigation has touch with the accused. Therefore, apparently, the accused got 47 hours in judicial custody to be free from the influence or fear of police and think over peacefully, whether he should make confession or not. In our considered view, two days time was sufficient to dispel the fear or influence of police After such two days of reflection time, when the accused was produced on 27.01.2011, learned Magistrate again cautioned the accused about the consequence of confession as required under Section 164(2) CrPC. Being satisfied, that the accused was ready to make the confession voluntarily, learned Magistrate proceeded to record the confession. On the above facts and circumstances, when the accused was given sufficient time (47 hours) for reflection and after such reflection period, the Magistrate again cautioned him before actually recording the confession, to ensure the voluntariness and being doubly sure about the voluntariness of the accused, learned Magistrate recorded confession, in our considered view, there was no need to give further time for reflection for the second time when the confession was actually recorded. A Division Bench of this Court in Nirmal Moran Vs. State of Assam reported in 2003 (2) GLT 266, rejected the proposition, that after expiry of the time given for reflection, before the confessional statement is actually recorded, Page No.# 9/10 time for reflection again has to be given. Having considered the facts, that the accused was in judicial custody for two days (47 hours) beyond the reach and influence of police or the investigation agency and learned Magistrate, before actually recording confession cautioned the accused for the second time and recorded the confession after being doubly sure that accused made the confession voluntarily, we see no reason to doubt the satisfaction of the Magistrate, that the accused made the confession voluntarily, being completely free from police influence.
16. It is no doubt true, in the present case, the appellant during the course of examination under Section 313 CrPC retracted from the confession. In his reply to question No. 24 "do you have to say anything else?" put to the accused during examination under Section 313 CrPC, the appellant stated "I was tortured at the police station after my arrest. I was beaten up by the police. Police was telling to confess my guilt". The confession was recorded on 27.01.2011 and the statement under Section 313 CrPC was recorded on 16.01.2015 i.e. after about 5 years. During this period of almost 4 years 10 months the appellant met the Magistrate and the learned trial Judge on many occasions, but at no point of time he did make any complain of police torture nor retracted the confession. Learned Magistrate clearly recorded in the Ext.5 that accused did not have any injury. Therefore, such belated retraction, almost at the end of the trial, after about 5 years, loses its effectiveness and in our considered opinion, cannot have any bearing on the voluntariness of the confession.
17. The Apex Court in Abdulvahab Abdulmajid Shaikh Vs. State of Gujrat reported in (2007) 2 SCC (Cri) 276 observed that all confessions are invariably retracted at a later stage. The retraction by itself is not a ground to discard the confession by holding that it was not voluntarily made. The Apex Court, in Shankaria Vs. State of Rajasthan reported in AIR 1978 SC 1248 held that when confession was retracted after lapse of several months when prosecution evidence was closed and during examination under Section 313 CrPC, such confession shall be held to be voluntary.
18. For the reason stated above, we are of the considered opinion that the accused made the confession voluntarily.
19. The accused in his confessional statement not only confessed to have killed the victim, he has also stated the reason for his act. The accused stated in his confessional statement that Page No.# 10/10 victim was suspected to be "dainee" (witch) by the villagers. He also stated to have believed, that his five year old daughter and his father were killed by the victim by practicing witch craft and therefore, he killed the victim. The accused further stated in his confession that he pressed neck of the victim and also gave blows on her chest and head and killed her. He also stated that after killing the victim, he took the body to a field at some distance from the place of occurrence and left there. The postmortem report, Ext.3 and the oral testimony of the PW- 7, the autopsy doctor, so far as the injuries sustained by the victim, as indicated above, reinforced the confessional statement that the accused hit the victim on her head and chest. Ext.6 the sketch map also supports the confessional statement that the victim was killed on the road and her body was left in the field. Thus, the oral testimony of PW-7, postmortem report, Ext.3 and sketch map, Ext.6 corroborated and reinforced the trustworthiness of the confessional statement. Therefore, we are of the considered opinion that the confession made by the accused was true.
20. The confessional statement having found to be perfectly voluntary and true, which also received support from the medical evidence, we do not find any reason to disagree with the findings of the learned trial court and as such in our considered opinion, the appeal is devoid of merit. Accordingly, we dismiss the appeal and affirm the conviction recorded and sentence imposed on the appellant by the learned Sessions Judge.
21. The jail appeal accordingly stands dismissed.
22. Appreciating the assistance rendered by Mrs. R.D. Majumdar, learned Amicus Curiae, it is directed that she be paid Rs. 7500/- for the assistance rendered by her, on furnishing of a copy of this judgment.
23. Send down the LCR.
JUDGE JUDGE Mkk Comparing Assistant