Gauhati High Court
Sri Munu Mura vs The State Of Assam on 3 April, 2013
Author: I.A. Ansari
Bench: I.A. Ansari
1
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH
CRIMINAL APPEAL NO. 15 (J) OF 2008
Munu Mura ----- Accused-Appellant
-Versus-
The State of Assam ----- Respondent
BEFORE
THE HON'BLR MR.JUSTICE I.A. ANSARI
THE HON'BLR MR.JUSTICE PK MUSAHARY
For the appellant : Mr. PN Choudhury, Amicus Curiae.
For the respondent : Mr. KA Mazumdar, Addl. Public Prosecutor, Assam.
Date of hearing & judgment : 3rd of April, 2013
JUDGEMENT AND ORDER
[oral]
{ IA Ansari, J }
This appeal is directed against the judgment and order, dated 06-09-
2007, passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No.
142 of 2002, convicting the accused-appellant, namely, Munu Mura, under
Sections 302 and 201 read with Section 34 IPC and sentencing him to undergo,
for his conviction under Section 302 read with Section 34 IPC, imprisonment for
life and pay a fine of Rs.5,000/- and, in default of payment of fine, suffer
rigorous imprisonment for a period of two months and to further undergo, for his
conviction under Section 201 read with Section 34 IPC, rigorous imprisonment
for two years, both the sentences having been directed to run concurrently.
2. The case of the prosecution, as surfaced at the trial, may, in brief, be
described as under:
Suresh Gogoi, an employee of St. Luck's Hospital, disappeared on 26-08-
2000. He used to be in the business of money lending and it was not uncommon
for him to remain away from his house in connection with his business. A few
2
days after Suresh Gogoi had ceased to be seen, his brothers, Nakul Gogoi (PW1)
and Nitul Gogoi (PW2), started looking for Suresh Gogoi. Their search, for their
brother, Suresh, took them to the house of the accused, Shankar Boraik, who
told both, PW1 and PW2, that Suresh had informed him, by way of a letter, that
he had been doing business at Doom Dooma and Siliguri. When, however,
Suresh did not return for long, PW1 and PW2, once again, went to the house of
accused Shankar Boraik and this time, the two brothers, PW1 and PW2, were
accompanied by their other co-villagers, who brought accused Shankar Boraik to
the house of PW2 and, upon being questioned and interrogated by his co-
villagers, accused Shankar claimed that he had, with the help of Munu Mura (i.e.,
the present accused-appellant), Ranjit Jhara and Anil Mura @ Anil Bengra, had
killed Suresh by strangulating him and, then, they buried his dead body. On the
basis of the information, so received from accused Shankar Boraik, an Ejahar, in
writing, was, on 01-12-2000, lodged by PW1 at Sabua Police Station. Based on
the said Ejahar and treating the same as First Information Report (Ext.1),
Chabua Police Station Case No. 102 of 2000, under Sections 302/201/34 IPC,
was registered against the present accused-appellant, Munu Mura, Shankar
Boraik, Ranjit Jhara and Anil Mura @ Anil Bengra. During investigation, accused
Shankar Boraik and accused Munu Mura were arrested and, on being questioned
by the police, they led the police to a place from where the dead body of Suresh
Gogoi was exhumed. Inquest was held on the said dead body and the said dead
body was also subjected to post mortem examination. On completion of
investigation, police laid charge-sheet, under Sections 302 and 201 read with
Section 34 IPC, against the all the said persons.
3. At the trial, when charges, under Sections 302 and 201 read with Section
34 IPC were framed against the accused persons, they all pleaded not guilty
thereto.
3
4. In support of their case, prosecution examined as many as 8 (eight)
witnesses. During trial, accused Shankar Boraik and accused Anil Mura @ Anil
Bengra absconded and they were accordingly declared absconders. However,
accused Munu Mura (i.e., the accused-appellant), who faced the trial, was
examined under Section 313 (1)(b) Cr.P.C. In his examination aforementioned,
the accused-appellant denied that he had committed the offences, which he was
alleged to have committed, the case of the defence being that of total denial. No
evidence was adduced by the defence.
5. Having, however, found the present accused-appellant guilty of the
offences, which he stood charged with, learned trial Court convicted him
accordingly and passed sentences against him as mentioned above. Aggrieved by
his conviction and the sentences passed against him, the accused, Munu Mura,
as a convicted person, has preferred this appeal.
6. We have heard Mr. PN Choudhury, learned Amicus Curiae, and Mr. KA
Mazumdar, learned Additional Public Prosecutor, Assam.
7. While considering the present appeal, it needs to be pointed out that
there is, admittedly, no witness, who has claimed to have seen Suresh Gogoi
being killed by the present appellant and/or accused Shankar Boraik and/or Anil
Mura @ Anil Bengra.
8. The incriminating circumstances, which have been relied upon by the
learned trial Court, in order to convict the accused-appellant, are two, namely,
(i) confession, which accused Shankar Boraik had allegedly made to his co-
villagers, to the effect that he, with the help of the present appellant, Munu
Mura, Ranjit Jhara and Anil Mura @ Anil Bengra, had caused death of Suresh and
buried his dead body and (ii) the claim of the PWs that accused Shankar Boraik
and the present appellant had led the police to the place from where the dead
body of Suresh Gogoi was exhumed.
4
9. Though we notice that the evidence, given by PW1 and PW2, alleging that
accused Shankar Boraik had confessed to have killed Suresh Gogoi, with the help
of the present appellant and others, as mentioned above, we do not, in the
present appeal, make any comment on the voluntariness, truthfulness,
correctness and/or legality of the extra-judicial confession, which accused
Shankar Boraik had allegedly made to his co-villagers.
10. For the purpose of this appeal, even if we assume that accused Shankar
Boraik had made extra-judicial confession as alleged by the prosecution
witnesses, the question, which the learned trial Court ought to have raised and
considered, was: How far the extra-judicial confession, allegedly made by
accused Shankar Boraik, was relevant and could have been used against the
present appellant.
11. It needs to be noted, with regard to the above, that confession of an
accused, which he makes against himself stands on a footing entirely different
from the confession, wherein he involves not merely himself, but other person or
persons too. While the use of a confession, made by an accused against himself,
is relevant, substantive and can become, if found to be voluntary and true, basis
for conviction of the accused, who makes the confession, the confession of the
co-accused is made relevant and controlled by Section 30 of the Evidence Act,
which reads as under:
"30. Consideration of proved confession affecting person making it and others
jointly under trial for same offence.- When more persons than one are being tried
jointly for the same offence, and a confession made by one of such persons
affecting himself and some other of such persons is proved, the Court may take
into consideration such confession as against such other person as well as against
the person who makes such confession.
Explanation.-" Offence" as used in this section, includes the abetment of, or
attempt to commit, the offence."
12. Apart from the fact that in order to use confession of a co-accused, the
accused, who has made the confession, and the accused, whom the confession
5
implicates, are to be jointly tried, the confession of a co-accused can be used not
as substantive evidence, but only for the purpose of corroboration. This becomes
evident from the language, which Section 30 employs inasmuch as it states that
the Court may take into consideration such confession as against such other
person as well as against the person, who makes such confession.
13. If, therefore, the evidence on record otherwise proves the guilt of an
accused, the confession of a co-accused can be used to lend support to the
conclusion, which the Court, independent of the confession of the co-accused,
has reached.
14. What can be gathered from the above discussion is that when the
prosecution seeks conviction of an accused on the basis of the confession of the
accused himself, there is no impediment in basing the conviction of the accused
on his own confession if the Court finds such a confession voluntary and true;
yet, as a rule of practice, it is unsafe to rely upon a confession, particularly, if the
confession stands retracted, unless the Court is satisfied that the retracted
confession is voluntary and true and the same has been corroborated in material
particulars. We may refer, in this regard, to Sarwan singh Rattan Singh Vs.
State of Punjab (AIR 1957 SC 637), wherein the Supreme Court laid down
as follows:
"it is, however, true that Sarwan Singh has made a confession and in law,
it is always open to the court to convict an accused on his confession
itself though he has retracted it at a later stage. Nevertheless usually
Courts require some corroboration to the confessional statement before
convicting an accused person on such statement. What amount of
corroboration would be necessary in such a case would always be a question of
fact to be determined in the light of the circumstances of each case. "
(Emphasis is added)
15. One may also refer to the case of Pyare Lal Bhargava Vs. State of
Rajasthan, (AIR 1963 SC 1094), too, wherein the Supreme Court laid down
as follows :
6
"a retracted confession may form the legal basis of a conviction if the
Court is satisfied that it was true and was voluntarily made. But it has
been held that a court shall not base a conviction on such a confession
without corroboration. It is not a rule of law, but is only a rule of
prudence. It cannot even be laid down as an inflexible rule of practice or
prudence that under no circumstances such a conviction can be made without
corroboration, for, a court may, in a particular case, be convinced of the absolute
truth of a confession and prepared to act upon it without corroboration; but it
may be laid down as a general rule of practice that it is unsafe to rely
upon a confession, much less on a retracted confession, unless the Court is
satisfied that the retracted confession is true and voluntarily made and
has been corroborated in material particulars".
(Emphasis is added)
16. That there is no impediment in law in convicting an accused solely on his
own confession, even if retracted, provided that the Court believes such a
confession as true has been made clear, by the Supreme Court, in Kehar Singh
Vs. The State (Delhi Administration), (AIR 1988 SC 1883). That no Court
can throw away confession merely because the confession is retracted has been
clearly laid down in State of Tamil Nadu Vs. Kutty alias Lakshmi
Narashinhan, 2001 Crl. L. J. 4168, wherein the Supreme Court has observed
and held as follows:
"learned Judges of the High Court declined to act on the said confession mainly
for two reasons. First is that the confession was retracted by the maker thereof and
second is that the recovery of articles was made prior to the confession. We may
state at the outset itself that both reasons are too insufficient for overruling the
confession. It is not the law that once a confession was retracted the Court
should presume that the confession is tainted. As a matter of practical
knowledge we can say that non-retracted confession is a rarity in
criminal cases. The retract from confession is the right of the confessor and all
the accused against confessions were produced by the prosecution have invariably
adopted that right. It would be injudicious to jettison a judicial confession
on the mere premise that its maker has retracted from it. The Court has a
duty to evaluate the evidence concerning the confession by looking at all
aspects. The twin test of a confession is to ascertain whether it was
7
voluntary and true. Once these tests are found to be positive the next
endeavour is to see whether there is any other reason, which stands in the
way of acting on it. Even for that, retraction of the confession is not the
ground to throw the confession overboard. "
(Emphasis is added)
17. In K. I. Parunny Vs Asstt. Collector (HQ), Central Excise
collectors, Cochin, reported in (1997) 3 SCC 721, the Supreme Court has, in
no uncertain words, clarified that in a criminal trial, it is, now, well settled legal
position that confession can form the sole basis of conviction.
18. After taking into consideration a number of its own decisions, the
Supreme Court, in K. I. Parunny (supra), has laid down succinctly the law with
regard to basing of conviction of an accused, on his own confession, in the
following words:
"it would thus be seen 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 basis for conviction of the accused. Practice and prudence
require 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 the conviction. However, prudence
and practice require that court would seek assurance getting
corroboration from other evidence adduced by the prosecution. "
(Emphasis is added)
19. What emerges from the above discussion is that there is no legal bar in
basing the conviction of an accused on his own confession if the confession is
found to be voluntary and true; but safer it is, as a rule of general practice and
8
prudence, that the Court seeks some corroboration from other materials on
record and if such corroboration is received, conviction can be safely based on
the confession of the accused. We may also point out that when a confession is
found to be voluntary and true, the same cannot be refused to be acted upon
merely on the ground that the confession stands retracted, for, even a retracted
confession can form legal basis for conviction if the Court is, as observed in
Pyare Lal Bhargava (supra), satisfied that the confession is true and voluntary.
20. While confession of an accused is relevant under sections 24 to 29 of the
Evidence Act against himself, it is Section 30 of the Evidence Act, which makes
the confession of a co-accused relevant. There is a marked difference between
the probative values of the confession of an accused vis-a-vis the confession of a
co-accused and this difference appears to have, quite often, created confusion
and incorrect approach, though the law on the use of the two kinds of judicial
confessions is very well settled. The confession made by an accused, if found
voluntary and true, can be made basis for his own conviction. Though
corroboration of such a confession is not a condition precedent for making use of
the confession as basis for conviction, prudence requires that some corroboration
of the material particulars of the confession is received from the evidence on
record. As against such use of confession against the maker of the confession,
the confession of a co-accused is no evidence at all and it cannot be used as a
foundation for conviction of the accused, who is not maker thereof, though the
same can, indeed, be used as a supporting piece of evidence against the
accused, who is not the maker thereof.
21. The reasons for not treating the confession of a co-accused as evidence
are, broadly speaking, that the confession of a co-accused is not given on oath,
it is neither given in the presence of the accused against whom the confession is
sought to be relied upon nor is the maker's version is tested by cross-
examination. In fact, such a confession is a weaker type of evidence than the
9
evidence of an approver, for, the approver is cross-examined by the accused;
whereas the confession of a co-accused is not subjected to cross-examination
and brought on record without allowing the accused, against whom such a
confession is sought to be proved, any opportunity of cross-examining the co-
accused and testing the veracity or otherwise of the confession of the co-
accused. A confession is relevant against the maker, because the maker
implicates himself in a crime, but the confession of the co-accused differs in this
regard inasmuch as it is someone else's confession, which is sought to be used
against a person, who never owned up the guilt or the truth of the confession of
his co-accused. (See Bhuboni Sahu V. The king, 76 Ind. App. 147, and
Emperor vs lalit Mohan, 12 Cr. LJ2 (Cal) ).
22. A co-accused, who confesses his guilt, stands on no better footing than an
accomplice. The law insists that the accomplice's evidence be not used without
corroboration. Prudence demands that when such an accomplice implicates
another, then, the person, who is so implicated, has a right to test the evidence
given against him by his co-accused; but no such opportunity is available in law
to the person so implicated by his co-accused. The resultant effect is that the
confession of a co-accused is used against another accused without giving him
any opportunity of testing the veracity of the confession by cross-examining the
maker thereof.
23. No wonder, therefore, that the Supreme Court has laid down that the
confession of the co-accused is not really 'evidence' in its strict sense and cannot
be made foundation for conviction of the person, who did not make the
confession, though such confession can be used as an additional reason for
believing the evidence on record provided that the evidence on record,
independent of the confession of the co-accused, convinces the court of the guilt
of the accused against whom such a confession is relied upon. A reference, in
this regard, may be made to Kashmira Singh Vs. The State of Madhya
10
Pradesh (AIR 1952 SCI 59), wherein the Supreme Court observed and laid
down as follows:
"the confession of an accused person is not evidence in the ordinary sense
of the term as defined in Section 8. It cannot be made the foundation of a
conviction and can only be used in support of other evidence. The proper
way is, first, to marshal the evidence against the accused excluding the
confession altogether from consideration and see whether, if it is believed
a conviction could safely be based on it. If it is capable of belief
independently of the confession, then, of course it is not necessary to call
the confession in aid. But cases may arise, where the Judge is not prepared to
act on the other evidence as it stands even though, if believed, it would be
sufficient to sustain a conviction. In such an event, the Judge may call in aid the
confession and use it to lend assurance to the other evidence and, thus, fortify
himself in believing what without the aid of the confession he would not be
prepared to accept. "
(Emphasis is added)
24. Thus, the above observations, made in Kashmira Singh (supra), were in
respect of Section 30 of the Evidence Act, that is, for using the confession of a
co-accused and, hence, the decision, in Kashmira Singh (supra), becomes
relevant, when the confession of a co-accused is sought to be used as basis for
conviction. In short, Kashmira Singh (supra) lays down the law with regard to
use of the confession of a co-accused.
25. Drawing the distinction between the use of confession against its maker
under Section 24 of the Evidence Act and the use of the confession against a co-
accused under Section 30 of the Evidence Act, the Supreme Court, in K. I.
Parunny (supra) observed and held as follows :-
"21. In Kashmira Singh case the co-accused, Gurcharan Singh made a confession.
The question arose whether the confession could be relied upon to prove the
prosecution case against the appellant Kashmira Singh. In that context, Bose, J.
speaking for a Bench of three Judges, laid down the law that the court requires to marshal the evidence against the accused excluding the confession altogether from consideration. If the evidence dehors the confession proves the guilt of the appellant, the confession of the co-accused could be used to corroborate 11 the prosecution case to lend assurance to the Court to convict the appellant. The court considered the evidence led by the prosecution, dehors the confession of co-accused and held that the evidence was not sufficient to bring home the guilt of appellant Kashmira singh of the charge of murder. The appellant was acquitted of an offence under Section 302 ipc but was convicted for the offence under section 201 IPC for destroying the evidence of murder and sentenced him to seven years' rigorous imprisonment. 23. In Haricharan Kurmi Vs. State of Bihar a Constitution Bench was to consider as to when the confession of co-accused would be used as evidence under Section 3 of the Evidence Act. It was held that the confession of a co-accused cannot be treated as substantive evidence. If the court believed other evidence and felt the necessity of seeking an assurance in support of its conclusion deductible from the said evidence, the confession of the co-accused would be used. It was, therefore, held that the court would consider other evidence adduced by the prosecution. If the court on confirmation thereof forms an opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of the guilt of the accused. It is, thus, seen that the distinction has been made by this court between the confession of an accused and uses of a confession of the co-accused at the trial. "
(Emphasis is added)
26. Thus, what emerges from the above discussion is that before using the confession of a co-accused, the Court has to, first, marshal the evidence against the accused, who is sought to be roped in with the help of the confession of the co-accused, and if, on such marshaling of evidence, the Court finds that independent of the confession of the co-accused, the evidence on record reveals sufficient incriminating materials for believing the complicity of the accused in the offence, then, in such an event, the confession of the co-accused can be used as a supporting piece of evidence for lending assurance to the other evidence on record and in order to fortify the court in believing that the conclusion that it had reached that the accused is guilty is correct.
27. In short, the confession of a co-accused is not such substantive piece of evidence on which can rest the entire foundation for conviction of the accused, who is not the maker of the confession. Far from this, confession of a co-accused 12 can be used merely for the purpose of lending assurance to the conclusion already reached by the court that the accused, against whom the confession of a co-accused is sought to be used already stands proved to have committed the offence. It is in this context that the decisions in Kashmira Singh (supra) and Haricharan Kurmi (supra) need to be read. There is, however, no impediment, we feel impelled to clarify, in basing the conviction of an accused on his own confession if the confession is found to be voluntary and true, though, generally, corroboration of such- a confession is desirable. (see also Bakul Bora and Anr.
-vs- State of Assam, reported in 2004 (3) GLT 396)
28. In the light of the law as pointed out above, when we revert to the case at hand, we are constrainted to hold that the learned trial Court could not have based the conviction of the accused-appellant on the confession of the co- accused, Shankar Boraik alone; rather, independent of the said confession of the said co-accused, the learned trial Court ought to have tried to find out and ascertain as to what evidence, as against the present appellant, has been adduced by the prosecution and if such evidence was found to be sufficient to convict the present appellant, then, the confession of the co-accused, Shankar Boraik, could have been used for the purpose of reassuring the Court as regards the conclusion, which it had, otherwise, reached.
29. In the present case, when keep the confession of the co-accused, Shankar Boraik, excluded from the purview of our consideration, we notice that the only evidence, which the prosecution adduced against the present appellant, was the fact that accused Shankar Boraik, accompanied by the accused-appellant, had led the police to the place from where Suresh Gogoi's dead body was exhumed. No statement, made by the accused-appellant to the police, has been proved. In other words, the statement, leading to the discovery of fact, within the meaning of Section 27 of the Evidence Act, has not been proved by the prosecution. 13
30. Even if we assume, for a moment, that the present appellant, too, led the police to the place from where Suresh's dead body was recovered, this conduct of the accused-appellant would, at the most, show his knowledge of the fact that the dead body was kept buried at the place from where the same was recovered. This piece of evidence, in the absence of any other evidence on record, neither proved the accused-appellant guilty of having caused alone, or in association with anyone else, death of Suresh Gogoi nor did this piece of evidence, in the absence of any other evidence, could have been held to have proved the accused-appellant guilty of having caused disappearance of evidence, namely, the dead body of Suresh Gogoi.
31. Because of what have been discussed and pointed out above, we are clearly of the view that the evidence on record was grossly inadequate to convict the accused-appellant and he ought to have, therefore, been acquitted of the charges framed against him.
32. In the result and for the reasons discussed above, this appeal succeeds. The impugned conviction of the accused-appellant and the sentence passed against him, by the judgment and order under appeal, are hereby set aside. The accused-appellant is held not guilty of the offences of which he stands convicted of.
33. Let the accused-appellant be set at liberty, forthwith, unless he is required to be detained in connection with any other case.
34. Before parting with this record of this appeal, we make it, once again, clear that we have not commented on the veracity or legality of the evidence, which has been adduced against the other accused inasmuch as they are not appellants before us and we have, therefore, discussed, in the present appeal, the evidence only from the perspective of the present appellant's case. 14
35. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for her valuable assistance rendered to this Court.
36. Send back the LCR.
37. With the above observations and directions, this appeal shall stand disposed of.
JUDGE JUDGE Paul