Gauhati High Court
Page No.# 1/23 vs The State Of Assam And Anr on 26 September, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/23
GAHC010254462022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./158/2023
AWADESH CHOUHAN AND 2 ORS.
S/O SATURI CHOUHAN,
R/O PEPE BOSTI,
P.O. AND P.S.- DIPHU,
DIST.- KARBI ANGLONG.
2: MUNNA KHAN
S/O LATE ALI HUSSAIN
R/O PEPE BOSTI
P.O. AND P.S.- DIPHU
DIST.- KARBI ANGLONG.
3: SATURI CHOUHAN
S/O LATE RAMRAJ CHOUHAN
R/O PEPE BOSTI
P.O. AND P.S.- DIPHU
DIST.- KARBI ANGLONG
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY PUBLIC PROSECUTOR.
2:RAMESHAR CHAUHAN
S/O BHIM CHOUHAN
R/O PEPE BOSTI
Page No.# 2/23
P.O.- BORLANGFAR
P.S.- DIPHU
DIST.- KARBI ANGLONG
For the appellants : Mr. A.I. Uddin, Advocate
For the respondent No.1 : Ms. B. Bhuyan, Sr. Adv. & APP, Assam.
Date of hearing : 16.09.2025
Date of Judgment : 26/09/2025.
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE ANJAN MONI KALITA
JUDGMENT AND ORDER (CAV)
(M. Zothankhuma, J)
1. Heard Mr. A.I. Uddin, learned counsel for the appellants. Also heard Ms. B. Bhuyan, learned Sr. Counsel and Addl. P.P., Assam assisted by Ms. R. Das, learned counsel appearing for the State.
2. This appeal has been filed by the 3 appellants, who have been convicted under Sections 302/201/34 of the IPC, vide judgment dated 11.11.2022, passed by the learned Sessions Judge, Karbi Anglong, Diphu, in Sessions Case No.72/2009 and sentenced to undergo life imprisonment with a fine of Rs.10,000/- each, in default, to undergo rigorous imprisonment for 1 year each under Sections 302/34 of the IPC. They were also sentenced to undergo rigorous imprisonment for a period of 7 years each under Sections 201/34 of the IPC with fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for 1 year each.
3. The brief facts of the case is that an FIR dated 18.02.2007 had been submitted by one Page No.# 3/23 Rameswar Chouhan who died before giving his testimony in the learned Trial Court, to the effect that his younger brother, Sri Rakesh Chouhan went missing from his house around 9 PM on 14.02.2007. The ejahar was submitted at Borlangphar P.P. Thereafter, the dead body of missing Rakesh Chouhan was found in the pond of Late Sudama Chouhan at about 11:45 AM on 18.02.2007. As a muffler was found around the neck of Rakesh Chouhan, it was suspected that he had been strangulated to death with the muffler. The FIR gave the names of the seven suspected persons, who could have been involved in the death of the deceased. The suspected persons included the present three appellants, namely Awadesh Chouhan (appellant no.1), Munna Khan (appellant no.2) and Saturi Chouhan (appellant no.3). The appellant no.1 is the son of the appellant no. 3.
4. Consequent to the FIR, Diphu P.S. Case No.32/2007 was registered on 19.02.2007. After the investigation was completed, the Investigating Officer (PW-8) submitted a charge-sheet, having found a prima facie case under Sections 302/201/34 IPC against the three appellants. The other four co- accused were however discharged from the case, as no evidence had been found against the four co-accused by the case I.O.
5. The learned Trial Court thereafter framed charge under Section 302/34 and Section 201/34 IPC against the appellants, to which they pleaded not guilty and claimed to be tried.
6. The learned Trial Court thereafter examined 11 (eleven) prosecution witnesses and after examining the appellants under Section 313 Cr.P.C, the learned Trial Court came to a finding that the appellants were guilty of murdering the deceased Rakesh Chouhan and causing the disappearance of the evidence of the commission of the offence. The learned Trial Court thereafter convicted all the appellants under Section 302/34 IPC and 201/34 IPC.
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7. Being aggrieved, the appellants have filed the present appeal.
8. Mr. A.I. Uddin, the learned counsel for the appellants submits that the conviction of the appellants has been based on the evidence of PW-5, PW-9 and the retracted confessional statement of the appellant no.1, which had been made under Section 164 Cr.P.C. The learned counsel for the appellants submits that the evidence of PW-5 is to the effect that the mother of PW-5 and the sister of the deceased had gone to the house of the appellant no.3 Sri Saturi Chauhan. The sister of the appellant no.3 thereafter had told them that she had seen the appellant nos.1 and 2 taking away the deceased by holding him. PW-5 further stated in his evidence that the people from their village thereafter questioned the appellant nos.1 & 2 about the whereabouts of the deceased Rakesh Chouhan after taking him. Though the appellant nos.1 & 2 kept silent, they later stated that the body of the deceased was in the pond of Sudama Chouhan, after being questioned by the police. Thereafter the police directed the appellant nos.1 & 2 to bring out the body of the deceased. The appellant nos.1 & 2 thereafter, in the presence of the police and the people of the village, brought out the body of the deceased from the pond of Sudama Chouhan. PW-5 also stated that when the body of the deceased was being brought out from the pond, he saw something like a gamocha (towel) wrapped around the neck of the deceased.
9. The learned counsel for the appellants submits that the daughter of the appellant no.3, who had allegedly stated the above facts to the mother of PW-5 and the sister of the deceased, was not made a prosecution witness and no evidence was led by the prosecution with regard to the alleged statement made Page No.# 5/23 by the daughter of the appellant no.3. As such, the testimony of PW-5 could not be made the basis for convicting the appellants for the death of the deceased, as his testimony was only hearsay evidence.
10. The learned counsel for the appellants further submits that the evidence of PW-9, who is the father of the deceased, is to the effect that he had been told by one old lady, who was a neighbour, about her son the deceased, which was to the effect that she saw the deceased with the appellant nos.1 & 2 on the previous night coming from a pan shop. On the old lady asking the appellant no.1 about the whereabouts of the deceased, the appellant No.1 apparently told the old lady that he did not see the deceased. The testimony of PW-9 is also to the effect that the mother of the appellant no.2 had come to the house of PW-9 and stated that the appellant had told her that if the deceased was not found, they would be in trouble. PW-9 also stated that on going to the house of the appellant no.1 along with his daughter-in-law and 4/5 female members of her family, the sister of the appellant no.1 informed them that his son (deceased) had been killed, but she did not know who had killed him.
11. The learned counsel for the appellants submits that the evidence of PW-9 shows that the neighbour, who was an old lady and the sister of the appellant no.1, had apparently stated that the appellants were last seen with the deceased and that the deceased had been killed by the appellants. However, the old lady who was a neighbour of PW-9 and the sister of the appellant no.1, had not been made prosecution witnesses, to prove or corroborate the testimony of PW-9. He accordingly submits that the evidence of PW-9 being only hearsay evidence, no conviction could be based on the same.
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12. The learned counsel for the appellants further submits that the confessional statement of the appellant no.1 under Section 164 Cr.P.C which had been made on 28.02.2007 had been retracted by the appellant no.1 and as such, no conviction could have been made on the basis of the said retracted confessional statement. He accordingly submits that when there is no evidence to prove that the appellants had anything to do with the death of the deceased, the learned Trial Court had committed an error in convicting the appellants under Section 302/34 IPC and also with respect to concealment of evidence in terms of Section 201/34 IPC.
13. The counsel for the appellants further submits that even if it was assumed by this Court that the conviction of the appellants had been correctly made in terms of the retracted confessional statement made by the appellant No.1 under Section 164 Cr.P.C, the confessional statement was relatable only to the guilt of the appellant No.1 in causing the death of the deceased. There is nothing in the confessional statement of the appellant no.1, to show the involvement of the appellant Nos.2 & 3 in the death of the deceased. Further, the deceased had been found molesting the sister of the appellant No.1 in terms of statement made under Section 164 Cr.P.C by the appellant no.1. As the appellant No.1 had apparently acted at the spur of the moment, due to the grave and sudden provocation on the part of the deceased in molesting his sister, the conviction of the appellant No.1 could have at best, been done only under Section 304, Part-1 IPC and not under Section 302 of the IPC.
14. The counsel for the appellants further submits that the confessional statement of the appellant No.1 had been made, on the threat of being beaten up by the police and that the police had pressured the appellant to make a false confession.
15. Ms. B. Bhuyan, learned Addl. P.P., submits that the retracted confession can form the basis of conviction, if the Court is satisfied that the confession was voluntary and it was true. She further submits that though the confessional statement of the appellant had been made Page No.# 7/23 on 28.02.2007, the same had been retracted only in the year 2022, i.e. after 15 years, thereby implying that the retraction of the confessional statement after 15 years was only an afterthought, to escape the liability of his illegal act. The learned Addl. P.P. further submits that the informant died during trial and as such, he was not examined by the learned Trial Court. She submits that when the evidence of PWs- 5 & 9 has proved that the death of the deceased had been caused by the act of the appellants and that the appellants had hid the body in the pond, there was no infirmity with the conviction of the appellants under Sections 302/201/34 of the IPC. She also submits that once it has been found that the bodily injury caused on the deceased was intended to cause the death of the said person, the Exceptions to Section 300 IPC would not come into play. In the present case, when the deceased had been strangulated by the gamocha, the intention to cause death having been present, the reliance on the retracted confessional statement of the appellant No.1 to convict the appellant No.1 cannot be faulted.
16. We have heard the learned Counsels for the parties.
17. The evidence recorded by the learned Trial Court and the findings made by the learned Trial Court in the impugned judgment shows that the appellants have been convicted only on the basis of the testimonies of PW-5, PW-9 and the retracted confessional statement made by the appellant no.1 under Section 164 Cr.P.C.
18. The evidence of PW-5 is to the effect that the dead body of the deceased was recovered from the pond of Sudama Chouhan, 5 days after he went missing. Prior to that, the mother of PW-5 and the sister of the deceased had gone to the house of the appellant no.3, to search for the deceased and ask whether the deceased had come to the house of the appellant no.3. PW-5 stated in his evidence that the daughter of the appellant no.3 told the mother of the PW-5 and the sister of the deceased that she had seen the appellant nos.1 & 2 taking away the deceased by holding his hands. PW-5 in his evidence further submits that he was informed that body was recovered by the appellant nos. 1 & 2 after being questioned by the police. The relevant portion of the testimony of PW-5 is reproduced hereinbelow, as follows :
Page No.# 8/23 "On the fifth day after he went missing, the dead body was recovered from the pond of Sudama Chouhan. Prior to that, my mother Sushila Devi and the sister of the deceased went to the house of accused Chaturi Chouhan to search for the deceased and to ask whether the deceased had come there. Then, the daughter of Chaturi Chouhan told them that she had seen accused Munna Khan and Awadesh Chouhan taking away the deceased by holding him."
19. A perusal of the above extract of the testimony of PW-5 goes to show that the fact that the appellant nos.1 & 2 were seen holding the deceased, has been allegedly stated by the daughter of appellant no.3 to the mother of PW-5 and sister of the deceased. However, neither has the daughter of the appellant no.3, nor the mother of PW-5 or the sister of the deceased been made witnesses in the present case. As such, they have not adduced any evidence in this case to prove/corroborate the evidence of PW-5. The consequence of the above can only mean that the testimony of PW-5 was hearsay evidence and could not be the basis for conviction of the appellants.
20. The evidence of PW-9, who is the mother of the deceased and the informant, is to the effect that she had been told by one old lady that she had seen her son with one Balindra Chauhan, the appellant no.1 and appellant no.2 on the previous night, coming from a pan shop. After that, PW-9 had asked appellant no.1 about her son, to which appellant no.1 stated that he did not see her deceased son. On Saturday, the mother of appellant no.2 came to the house of PW-9. The mother of the appellant no.2 then told PW-9 that if the deceased was not found, they would be in trouble. PW-9 further testified that on Sunday, PW-9 along with her daughter-in-law and 4/5 other female members of her family went to the house of appellant no.1. The sister of appellant no.1 informed them that her deceased son had been killed, but she did not know who killed him. The sister of appellant no.1 also stated that she saw the appellant no.1, appellant no.2 and appellant no.3 assaulting the deceased and on seeing the same she cried, due to which she was kept in a locked room. PW-9 further testified that the sister of appellant no.1 had told them that she came to know that the deceased had been killed by the appellants and that they had planned to hang the body of the deceased in the ceiling of the house where jaggery was prepared. On being asked, the appellant no.1 told them that body of the deceased had been drowned in the fishery of Page No.# 9/23 Sudama, who was a co-villager. The evidence of PW-9 is also to the effect that the police were informed, who thereafter came and apprehended the appellant nos.1 & 2 and took them to the fishery of Sudama. Appellant nos.1 & 2 thereafter took out the dead body of the deceased from the bottom of the said fishery.
21. The relevant extract of the testimony of PW-9 is reproduced hereinbelow, as follows :
"After that, I asked another neighbor my son who was an old lady about my son. She told me that she saw Rakesh Chauhan with Balindra Chauhan, Munna Khan and Audesh Chauhan on the previous night coming from the pan shop. After that, I asked Audesh Chauhan about my son who was going nearby my house but he too told me that he did not see my son Rakesh. After searching here and there I did not found my son Rakesh Chauhan. On Saturday mother of Munna Khan came to our house and told that his son told her if Rakesh Chauhan is not found then they will be in trouble. On the next day i.e. Sunday me and my daughter-in-law along with other 4/5 female members of my family went to the house of Audesh Chauhan. At Audesh Chauhan's house his sister informed us that my son Rakesh Chauhan was killed but she did not know who killed him. She also revealed that she saw Awadesh Chauhan, Munna Khan and father of Audesh Chauhan Shri Chaturi Chauhan assaulting the deceased Rakesh Chauhan and after seeing the same she cried to which she was kept inside a room with closed door. She also revealed that she came to know that Rakesh Chauhan was killed by Munna Khan, Audesh Chauhan and his father Chaturi Chauhan and they planned to hang the deceased Rakesh Chauhan's Body at the ceiling of house where jaggery were prepared in my house. Thereafter on being asked Audesh Chauhan told us that the body of the deceased was drawn in the fishery of Sudama who is my co-villager."
22. A perusal of the extract of the testimony of PW-9 shows that the deceased had been seen by one old lady earlier along with the appellants coming from a pan shop at night. There is nothing in the said evidence to show that any illegal act had taken place, as the deceased appeared to be walking with appellants on the said night. In any event the old lady mentioned by PW-9 has not been made a witness in the case and as such no evidence has been adduced by the said unknown old lady.
23. The mother of the appellant no.2 and the daughter-in-law of PW-9 have also not been made witnesses in the case. The 4/5 female members of the family of PW-9, who allegedly Page No.# 10/23 went to the house of a appellant no.1 along with PW-9 have also not been made witnesses in the case. Neither has the sister of appellant no.1 been made a witness in the case. As such, the evidence given by PW-9 that she had been told by the sister of the appellant no.1 that the deceased had been killed by the appellants, is hearsay evidence. Further, there is no proof that the appellant no.1 had told PW-9 that body of the deceased had been drowned in the fishery of Sudama. Thus, the evidence of PW-9 is only hearsay evidence and the same has not been proved/corroborated by any witness. Also, keeping in view the fact that the retracted Confessional Statement of the appellant no.1 under Section 164 Cr.P.C is to the effect that he had strangulated the deceased when he saw the deceased molesting his sister, the same does not corroborate the evidence by PW-9. As such, the evidence of PW-9 could not be made the basis of convicting the appellants for the death of the deceased.
24. In view of the above reasons, the finding of the learned Trial Court in the impugned judgment that the assault on the deceased by the appellant no.1 had been seen by the sister of the appellant no.1 and that PW-9 had stated that her son had been assaulted and killed by the appellants is without any basis. This reasoning of the learned Trial Court in our view is perverse, inasmuch as, the sister of the appellant no.1 had not been made a witness and as such, the evidence of PW-9 was only hearsay evidence.
25. The evidence of PW-7 (Doctor) is to the effect that the face and body of the deceased was swollen and there were some skin shuffling off, due to signs of decomposition. In his opinion, the actual cause of death could not be ascertained due to the advanced stage of decomposition. The External Appearance and description of injury on the deceased, as stated by PW-7 is reproduced herein below, as follows :
"External Appearance:- One young male dead body whose face is swollen and mixed with dried mud, lips and eye swollen, the neck is swollen and some form of sluffing all around the neck is seen. The hands and legs are also swollen and the chest and trunk are also swollen with some skin sluffing off due to signs of decomposition. The penis and scrotum are also swollen, Anus opening are Page No.# 11/23 also swollen due to signs of decomposition. In the abdomen dark and swollen with some areas sluffing with signs of decomposition. Abdomen is tensed. The peritoneum is swollen with full of foul smelling gas. Mouth swollen, Lips swollen, face mixed with dried mud and swollen. Eyes cannot be seen due to eye lids swollen. In the stomach sign of decomposition with full of foul smelling gas. Small and large intestine are also swollen with full of foul smelling gas due to signs of decomposition. Scalp and skull is intact. Brain matter swollen and foul smelling due to signs of decomposition. Liver, Spleen and kidneys are also swollen with signs of decomposition.
More details description of injury or diseases: - distorted face with swollen lips, eye lids and swollen with neck with some areas of sluffing of skin seen around the neck. The abdomen in tensed. On opening the abdomen foul smelling gas came out and other organs are seen with signs of decomposition. The face and body contains some dried mud.
Opinion:- the actual cause of death could not be ascertain due to advanced stage of decomposition."
26. The evidence of the Investigating Officer, i.e. PW-8 is to the effect that he was in the Diphu Police Station when he was entrusted to investigate the case. Thereafter, he went to the place of occurrence and recorded the statements of the seven accused persons. He had also made a prayer to the Court to record the Confessional Statement of the appellant nos.1 & 2. However, both of them declined to confess before the Magistrate. On 20.02.2007, he again went to the place of occurrence and arrested one Balindar Chouhan and Bishu Chouhan. On 15.03.2007 he prayed for release of all the accused persons except for the three appellants herein, who were charge-sheeted.
27. The extract of the evidence of PW-8, wherein the appellant nos.1 & 2 had declined to confess before the Magistrate is reproduced herein below, as follows :
Page No.# 12/23 "I also prayed before Hon'ble court to record the confessional statement of the accused Shri Abadesh Chouhan and Sri Munna Khan. But both the accused declined to confess before the Hon'ble Magistrate."
28. Despite the evidence of PW-8, the appellant no.1 had given a Confessional Statement on 28/02/2007 under Section 164 Cr.P.C. As such, the evidence of PW-8 that the appellant no.1 declined to confess appears to be a wrong statement, as it is not denied by the appellant no.1 that he had made a confessional statement under coercion, as per his explanation given during his examination under section 313 Cr.P.C. However, an explanation to the above could be that though the appellant had initially declined to give his confessional statement, he later changed his mind. Though the appellant no.1 has retracted his Confessional statement on 29/09/2022, during his examination under Section 313 Cr.P.C, on the ground that had had been forced by the police to make the Confessional Statement, we are of the view that the reason given by the appellant no.1 for retracting the Confessional Statement appears to be an afterthought. The Confessional Statement had been made on 28.02.2007 and retraction made on 29.09.2022, i.e. after more than 15½ years. The appellant no.1 had enough time on his hands to retract his Confessional Statement, keeping in view the fact that Charge had been framed against the appellants on 18.03.2010. The appellant no.1 now comes up after 15½ years, with a plea that the Confessional Statement was made under duress and a threat from the police. Accordingly, though the appellant no.1 has retracted his Confessional Statement, we are of the view that the retracted confessional statement can be considered for conviction of an accused, as we consider the same to be truthful and voluntary. Further, it has been corroborated in this case.
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29. The learned Trial Court had also come to a finding that the deceased had been killed by the appellants, in terms of the Confessional Statement made by the appellant no.1, wherein it was stated by the appellant no.1 that there was a love affair between the deceased and the sister of the appellant no.1. As per the Confessional Statement of appellant no.1, the appellant no.1 carried the dead body to dump the deceased. On the way, the appellant no.1 met appellant no.2 and informed him as to what had happened. Thereafter, appellant no.2 helped appellant no.1 in dumping the body of the deceased in the fishery.
30. The finding of the learned Trial Court that all the appellants were guilty of having killed the deceased, in terms of the Confessional Statement made by the appellant no.1, is reflected in paragraph-41 of the said impugned judgment, which states as follows :
"41. From the study of the prosecution case as a whole, it has come to light that there was a love affair between the deceased Rakesh Chouhan and the sister of the Awadesh Chouhan, Smti. Mamata Kumari and while the deceased Rakesh Chouhan went to meet her at night, the accused Awadesh, Munna and Saturi had caught him and assaulted him and killed him. It is pertinent to mention here that the accused Awadesh Chouhan had confessed his guilt before PW- 11, Executive Magistrate. In course of confession the accused Awadesh Chouhan has stated as follows:
"I know Rakesh Chauhan, who is of our same village. I have two sisters namely Mamta and Romina and my father Saturi who resides with me. I know Munna Khan who also resides in our village. On 14/02/07 at about 9 pm Rakesh entered in the sleeping room of my sister and tried to molest Mamta, her clothes were torn and my sister screamed and I got up from bed as I was sleeping there. I entered my sister's room, I caught hold of Rakesh from back as he was catching my sister Mamta and kicked him in his loins. He felled on ground, I wounded him on forehead with one wood piece. Then I saw the muffler round his neck and pulled the muffler for nearly five minutes and he fell dead. He had a dagger in his waist and he wore a long pant and sporting on his body. I was carrying Rakesh Body towards Sudhama Chaudhury's Fishery to dump him. On way I met Munna Khan who was coming from VDP party and I told him what happened, he also accompanied me in carrying Rakesh's Dead Body to Sudama's Fishery where the body was dumped as the fishery was covered by jungle. My father was not at home when the incident took place. I did not tell the happening Page No.# 14/23 to anybody. The dead body was found after 4 days."
31. The Confessional Statement of the appellant no.1 had been recorded on 28.02.2007 and the same had been retracted during the examination of the appellant no.1 under Section 313 Cr.P.C on 29.09.2022, wherein he has answered Question Nos.47 to 52, to the effect that he had confessed, as he was beaten by the police in the Police Station. Further, the police had been pressurizing him to confess his guilt. He was also told that if did not confess his guilt, they would falsely implicate in some other case and would make his life miserable. Hence, he had made the Confessional Statement under duress. Prior to deciding whether the retracted Confessional Statement can be used for convicting the appellants, we would like to consider how exactly the Confessional Statement affects the appellants.
32. We have noticed that the said retracted Confessional Statement does not in any manner implicate the appellant no.3. There is nothing to implicate the involvement of the appellant no.3 in the killing of the deceased or in causing the disappearance of the evidence of the offence or giving any false information. As such, the appellant no.3 cannot be convicted under Section 302/201/34 IPC, on the basis of the retracted Confessional Statement made by the appellant no.1.
33. The Confessional Statement of the appellant no.1 also does not indicate the involvement of the appellant no.2 in the killing of the deceased. The involvement of the appellant no.2 is only to the extent of helping the appellant no.1 in disposing of the body of the deceased. As such, we are not in agreement with the finding of the learned Trial Court that the retracted Confessional Statement proved the guilt of all the appellants under Section Page No.# 15/23 302/201/34 IPC.
34. The next question to be decided is whether the retracted Confessional Statement can be the basis for a conviction. In the case of Paramananda Pegu Vs. The State of Assam, reported in (2004) 7 SCC 779, the Supreme Court has, by referring to other judgments, held that a retracted confession may form the 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. In this case, the Confessional Statement had been made under Section 164 Cr.P.C. However, in the case of K.I. Pavunny vs. Assistant Collector, reported in (1997) 3 SCC 721, wherein the Confessional Statement had been made under Section 108 of the Customs Act, 1962, the Supreme Court held that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same the basis for conviction of the accused. However, practice and prudence required that the Court could examine the evidence adduced by the prosecution, to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution, to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary, in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court, on examination of the evidence, finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base a conviction. However, prudence and practice requires that the Court would seek assurance Page No.# 16/23 by getting corroboration from other evidence adduced by the prosecution. The question to be decided in K.I. Pavunny (supra) was as to whether the confessional statement made to a Custom Officer under Section 108 of the Customs Act, 1962, though retracted at a later stage, is admissible in evidence and could form the basis for conviction and whether a retracted confessional statement required corroboration on material particulars from independent evidence. We have to bear in mind the fact that a statement made under Section 108 of the Customs Act in any event is admissible in evidence, while a statement under Section 164 Cr.P.C needs to be corroborated by evidence. In Naresh J. Sukhwani Vs. Union of India , reported in 1995 Supl (4) SCC 663, the Supreme Court held that a statement recorded under Section 108 of the Customs Act is substantive evidence. However, the statements made in this case are under Section 164 Cr.P.C and not under Section 108 of the Customs Act.
35. The further issue to be decided is whether the circumstances from which the conclusion of guilt has been drawn can be said to be fully established, i.e. whether the chain of evidence is so complete, so as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellants and the circumstantial evidence must show that in all probability the act had been done by the appellants.
36. In the case of Pritinder Singh @ Lovely vs. State of Punjab, reported in (2023) 7 SCC 727, the Supreme Court has referred to the decision of Sharad Birdhichand Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116, wherein it has been stated that the circumstances from which the conclusion of guilt is to be drawn should be fully established and the facts so Page No.# 17/23 established should be consistent with the hypothesis of the guilt of the accused, that is to say, that the circumstances should not be explainable on any other hypothesis except that the accused is guilty.
37. In the case of Rabindra Kumar Dey Vs. State of Orissa, reported in (1976) 4 SCC 233, the Supreme Court has held that three cardinal principles of criminal jurisprudence are well-settled, namely:
(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from the weakness or falsity of the defence version while proving its case;
(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts.
In this particular case, the prosecution has failed to prove its case beyond any reasonable doubt and that the evidence recorded shows that the findings of the learned Trial Court has not been made on the basis of the evidence adduced by the Prosecution witnesses.
38. In the case of Pyare Lal Bhargava -vs- State of Rajasthan , reported in 1963 Supl. 1 SCR 689, the four Judges Bench of the Supreme Court held that a retracted confession may form the legal basis of a conviction, if the court is satisfied that it was true and voluntarily made. But it has been held that a Court shall not base it's conviction on such a confession without corroboration. It is not a Rule of law, but is only a rule of prudence.
39. In the present case, though an attempt has been made by the prosecution Page No.# 18/23 to prove that as the appellants were last seen with the deceased prior to his death on the basis of the testimony of PW-5, the fact remains that the "Last Seen Theory" cannot be applied to the facts of this case. Firstly, the deceased went missing on 14/02/2007 and it was only on 18/02/2007 that an FIR had been filed, after the body was found on 18/02/2007. Secondly, the evidence of the Doctor has clearly shown that the body was in an advanced stage of decomposition, proving that the deceased had been dead for some time. Further, there was no evidence adduced, to the effect that the appellants had been seen with the deceased within a small time gap, between the time they were seen with the deceased and the time of recovery of the deceased from the pond. In the case of Dharam Deo Yadav Vs. State of U.P. [(2014) 5 SCC 509], the Supreme Court has held that normally, the "last seen theory" comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is so small, that the possibility of another person other than the accused being the perpetrator of the crime becomes impossible. In the present case, the said time gap is too huge, in terms of the evidence of PW-5, besides there being no evidence as to when the appellants and the deceased were last seen together, for the "last seen theory" to be made applicable to the facts of this case.
40. As we have held that the confessional statement made by the appellant no. 1 was voluntary and as a retracted confessional statement can be the basis for conviction, provided it is corroborated, as held by the Supreme Court in the case of Pyare Lal Bhargava (supra), let us see whether the said retracted confessional statement is corroborated by evidence.
41. The evidence of PWs- 5 & 6 shows that the appellant nos. 1 & 2 brought Page No.# 19/23 out the body of the deceased from the pond of Sudama Chauhan. Keeping in view the retracted confessional statement wherein the appellant no.1 admitted to killing the deceased and the fact that he had brought out the body of the deceased from the pond along with the appellant no.2, we find that the retracted confessional statement has been corroborated by the evidence of PWs 5 & 6. Accordingly, we are of the considered view that the appellant no.1 had caused the death of the deceased and that the appellant no. 2 had helped the appellant no.1 hide the body of the deceased.
42. The next question to be decided is as to whether the act of the appellant no.1 in killing the deceased wound amount to murder or whether the Exceptions to section 300 IPC would be attracted, keeping in view the fact that the confessional statement shows that the appellant no. 1 had killed the deceased, when he saw the deceased trying to molest his sister. When we have taken the view that the confessional statement of the appellant was voluntary and had been corroborated, we would have to accept the corroborated portion of the confession of statement. Thus, the confessional statement and the recovery of the body proved that the appellant no.1 had killed the deceased and that the appellant no. 2 had helped the appellant no.1 in hiding the body.
43. In the case of Gurmail Singh Vs. State of Uttar Pradesh [(2022) 10 SCC 684], the Supreme Court has held that in order of make culpable homicide as murder, the act by which death is caused should fall not only under any one or more of the clauses Firstly to Fourthly under section 300 IPC, but they should also not fall under any of the 5 (five) Exceptions to section 300 IPC. On considering the fact that the appellant no.1 had seen the deceased trying to molest his sister, due to which he apparently acted on the spur of the moment, Page No.# 20/23 by killing the deceased by strangulating the deceased with own muffler, we are of the view that the appellant had acted due to a grave and sudden provocation on the part of the deceased, which would attract Exception 1 (one) to section 300 IPC. As the action of the appellant no.1 was due to a grave and sudden provocation, which made him lose his power of self control, we are of the view that the act of the appellant no. 1 amounts to culpable homicide not amounting to murder. Accordingly, we are of the view that the learned trial Court could not have convicted the appellant no.1 under section 302 IPC, in view of Exception 1 of section 300 IPC. We are of the view that the present case comes within the provision of section 304 Part-I IPC, as the appellant no.1 had apparently strangled the deceased with his Muffler for nearly 5(five) minutes, which to our mind, was long enough for the appellant no.1 to have the intention to kill. Further, the appellant no.1 in his confessional statement, stated that the deceased had a dagger on his waist. The same can lead to an inference that the intention to kill suddenly dawned on the appellant no.1, as a reaction with the knife was possible on the part of the deceased, if the appellant no.1 did not kill the deceased.
44. In Budhi Singh v. State of Himachal Pradesh, reported in (2012) 13 SCC 663, the Supreme Court has held as under:-
"18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self control but only Page No.# 21/23 temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."
45. Section 304 of the IPC prescribes the punishment for culpable homicide not amounting to murder. Part I of this Section provides that if the act by which death is caused is done with the intention of causing death, or causing such bodily injury as is likely to cause death, then the punishment may be imprisonment for life with fine or imprisonment which may extend up to 10 years with fine. On the other hand, Part II of Section 304 provides that if the offending act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death, then the punishment may extend to imprisonment for 10 years .
46. In view of the reasons stated above, we hold that the appellant no.1 is guilty of culpable homicide not amounting to murder. While he is not found guilty of the offence under section 302/34 IPC, the appellant no.1 is also found guilty of the offence of causing disappearance of the evidence of the offence, by hiding the body of the deceased in the pond along with the appellant no.2 and as such, he is guilty of having committed the offence of section 201/34 IPC also. We accordingly convict the appellant no.1 under section 304 Part-I IPC, while Page No.# 22/23 setting aside his conviction and sentence under section 302/34 IPC.
47. The involvement of the appellant no. 2 in the death of the deceased, being restricted only to the extent of hiding the dead body in a pond, we hold that the conviction of the appellant no.2 under section 302/34 IPC is not sustainable. The conviction of the appellant no.2 under section 302/34 is accordingly set aside.
48. We do not find any evidence against the appellant no.3 with regard to his involvement in the killing of the deceased and /or hiding the body of the deceased. As such, we are of the view that the appellant no.3 should be discharged from the charge under section 302/201/34 IPC, as the charges have not been proved by the prosecution against the appellant no.3. Consequently, only the appellant no.1 is convicted under section 304 Part-I IPC and section 201/34 IPC. The appellant no.2 is convicted under section 201/34 IPC. The appellant no. 3 is discharged from the charges under section 302/201/34 IPC.
49. Accordingly, we sentence the appellant no.1 to undergo rigorous imprisonment for 8(eight) years with a fine of Rs.10,000/-, in default, rigorous imprisonment for 6 (six) months under section 304 Part-I IPC. We do not find any reason to interfere with the sentence imposed on the appellant no. 1 to undergo rigorous imprisonment for 7(seven) years with a fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for 1(one) year under section 201/34 IPC. The sentences will run concurrently.
50. We acquit the appellant no.2 from the charges under section 302/34 IPC, while upholding his conviction and sentence under section 201/34 IPC.
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51. We acquit the appellant no. 3 from the charges framed against him under section 302/201/34 IPC. Accordingly, the impugned judgment and sentence is set aside, in so far as it relates to the appellant no. 3.
52. If the appellants have undergone their sentences, as per this order, they should be released from judicial custody immediately.
53. The appeal is allowed to the extent indicated above.
54. Send back the TCR.
JUDGE JUDGE Comparing Assistant