Sri Bijoy Orang vs The State Of Assam on 18 February, 2021

[Cites 6, Cited by 0]

Gauhati High Court

Sri Bijoy Orang vs The State Of Assam on 18 February, 2021

Equivalent citations: AIRONLINE 2021 GAU 61

1. Heard Mr. F.H. Laskar, learned counsel appearing for the appellant. Also heard Ms. B. Page No.# 2/10 Bhuyan, learned APP, Assam, appearing for the State. None has appeared for the respondent no. 2.

2. The sole appellant Bijoy Orang was convicted under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 30,000/- with default clause for committing murder of Budhni Orang.

3. The prosecution case, in brief, is that on 15/08/2010, the accused had hacked the deceased Budhni with a dao in front of her house after suspecting her to be a Witch.

4. On 15/08/2010, an ejahar was lodged with the Officer-in-Charge of Halwating Police Station in the district of Sivasagar, based on which Halwating PS Case No. 43/2010 was registered under Section 302 of the IPC. The matter was then investigated by the Police. After recording the statement of the witnesses and upon completion of investigation, the Police had submitted charge sheet, based on which, charge was framed against the appellant under Section 302 of the IPC. Since the appellant had pleaded not guilty to the charge, the matter went up for trial.

5. There is no eye witness to the incident and the prosecution case is based entirely on circumstantial evidence as well as the confessional statement made by the accused/appellant.

6. The prosecution side had examined as many as six witnesses including the IO. The defense side however, did not adduce any evidence.

7. PW-1 Sri Subhash Nayak had deposed that on the day of the incident he was not at home nor did he know how the incident took place. He has stated that the Police took his thumb impression at the time of holding inquest on the dead body. This witness was declared as a hostile witness. During his cross examination by the prosecution, PW-1 had denied of having stated before the Police that on 15/08/2010, accused Bijoy Orang had pulled the deceased by her hair to the road and killed her by dealing 2/3 cut blows and that he had witnessed the incident himself.

8. PW-2 Sri Bhojo Orang is another witness who did not support the prosecution case and was also declared as a hostile witness. PW-2 had also denied of having made any statement before the Page No.# 3/10 Police that accused Bijoy Orang had killed the deceased by cutting her neck with a dao on the road or that he had witnessed the incident himself.

9. PW-3 Smt. Rashmita Das is the Magistrate who had recorded the statement of the accused under Section 164 Cr.P.C., wherein, the accused had apparently admitted to have killed Budhni Orang. In her testimony, PW-3 has stated that the accused was produced before her at around 1-30 p.m. on 16/08/2010 when she was working as a Munsiff-cum-Judicial Magistrate, 1 st class at Sivasagar. On being asked, the accused had stated that he was willing to make a confession. Accordingly, the PW-3 had sent the accused to judicial custody for reflection and directed the jail authorities to produce him back again on 17/08/2010 at 10 a.m. On that day, the accused was produced before her at 12 noon from the Jail Hazot whereby he was duly explained the consequences of making a confession. Despite being explained about such consequences, the accused maintained his willingness to make the confession. On being satisfied that the accused was voluntarily seeking to make confession, she decided to record his statement under Section 164 Cr.P.C., which is Ext.-1. PW-3 has confirmed that Ext. 1(1) was the relevant part of the confession made by the accused and Ext. 1(2) is the signature of the accused in the confessional statement. After recording the confessional statement of the accused under Section 164 Cr.P.C., he was sent back to judicial custody.

10. PW-4 is the doctor on duty in the Sivasagar Civil Hospital, who had conducted the post mortem examination on the dead body of the victim. According to the post mortem report, following injuries were noticed in the dead body:-

"Wounds:

(1) 4" x 1½" incised wound over left forearm, depth to muscle lower third anterior aspect.

(2) 3" x ½" incised wound over left wrist anterior surface transverse with fracture of left ulna underlying the wound.

(3) 6" x 2" incised curved wound with apex upwards over left Detroit area of arm, depth to muscle.

Page No.# 4/10 (4) 5" x 2½" incised wound over back of left side of neck.

(5) 1½" x ½" wound over left side of neck, subcutaneous tissue cut deep over wound no. 4. (6) 6" x 1½" incised wound over left side of face oblique depth bone with fracture of underlying manila.

(7) 6" x 2" incised wound over right temporal region of skull with fracture of underlying temporal bone.

(8) 2½" x 1" incised scalp would over occipital region of skull.

(9) 2½" x 1" incised wound subcutaneous tissue deep over right forearm lower third radial aspect.

All wounds No. 1 to 9 are antemortem in nature."

The doctor had opined that the injuries found on the dead body were caused by dao seized by the Police and the injury No. 4 was sufficient to cause death of a person in ordinary course of nature.

11. PW-5 Sri Ram Sautal is the father of the victim. PW-5 has deposed that on the date of the incident at about 7 a.m. in the morning, Budhni had gone to the shop. There was hue and cry and so he came out and saw her body. PW-5 had stated that the victim was cut and thrown in the drain and that the accused had cut her but the the witness had also deposed that he did not know why he had cut her. In his cross examination, PW-5 had admitted that at the time of the incident he was at home and that he had not seen the incident.

12. PW-6 Sri Bhadra Kanta Medhi is the I.O. who had conducted investigation in the aforesaid police case. The IO (PW-6) has deposed to the effect that on being entrusted with the investigation in connection with Hawlating PS case No. 43/2010, he had visited the place of occurrence at Amguri Tea Estate and found the dead body. He then conducted the inquest on the body and sent it to the Sivasagar Civil Hospital for post mortem. PW-6 had also deposed that he had drawn the sketch map, recorded the statements of the people present in the place of occurrence and also seized a dao which he had found in the place of occurrence. The IO has also stated that he had apprehended the accused from his house whereafter, the accused Bijoy Orang was brought to the Station and questioned and Page No.# 5/10 thereafter, forwarded to the Court. The IO has also stated that he had made an application for recording confessional statement of the accused.

13. Based on the confessional statement of the accused, the learned Additional Sessions Judge, Sivasagar had convicted the appellant under Section 302 of the IPC and sentenced him to undergo life imprisonment and also to pay fine.

14. Mr. Laskar, learned counsel for the appellant submits that there is no circumstantial evidence proved by the prosecution so as to establish the guilt of the appellant. The learned counsel submits that the conviction of the appellant in this case is solely based on the confessional statement of the accused which he had retracted. According to Mr. Laskar, there are several infirmities and contradiction in the prosecution case which renders the confessional statement wholly un-reliable and, therefore, the learned Additional Sessions Judge had committed manifest illegality in convicting the appellant solely on the retracted confessional statement.

15. It is also the submission of Mr. Laskar that in the statement recorded under Section 313 of the Cr.P.C., the accused appellant had denied having killed the deceased or having made any confession voluntarily before the Magistrate. However, all the circumstances including the alleged confessional statement were never put the accused during his examination under Section 313 of the Cr.P.C. so as to give him a chance to explain thereby vitiating the trial itself. In support of his aforesaid argument, Mr. Laskar has relied upon a decision of this Court in the case of Faziruddin Vs. State of Assam and others reported in 1997(3)GLT 424 and another decision of the Supreme Court rendered in the case of Ganesh Gogoi Vs. State of Assam reported in AIR 2009 SC 2955.

16. Ms. B. Bhuyan, learned APP, Assam, on the other hand, submits that law is settled that conviction in a murder case can be based on confessional statement if the same is made voluntarily and recorded by observing all procedural formalities. In this case, submits Ms. Bhuyan, since the confessional statement of the accused was recorded by following proper procedure, the same would Page No.# 6/10 have to be treated as voluntary and true. According to the learned APP, merely because the appellant had retracted from his confession several months after the same was recorded under Section 164 Cr.P.C., the same does not erode the evidential value of the confessional statement of the accused. Ms. Bhuyan, therefore, submits that the learned Sessions Judge has rightly convicted the appellant based on such confessional statement.

17. As noticed above, out of the six witnesses examined by the prosecution side, PWs 1 and 2 have been declared as hostile witnesses. PWs 3, 4 and 5 are the official witnesses. PW-5 is the father of the victim who has confirmed that he did not see the incident but had merely heard from others that the accused had cut his daughter.

18. The prosecution did not examine Sajana Urang, the informant and husband of the victim as a witness.

19. Since the conviction in this case is virtually based on the confessional statement of the accused, we deem it appropriate to reproduce his statement recorded under Section 164 Cr.P.C. herein below :-

"Ma'am I have come to confess my guilt voluntarily. I killed Budhni Majhi by hacking her with dao. We all know Budhni Majhi to be a witch. She applies magic. If someone conceives, she destroys the foetus in the womb. My wife was carrying a foetus for 5 months. But, Budhni Majhi killed the foetus of my first child in my wife's womb itself. That that time I took my wife to hospital for treatment. She was admitted into the hospital for one day. Then Budhni asked me whether my wife came home or not. I said she did not. Next day my wife came home. One day my wife went to toilet in the morning. She met Budhni Majhi on her way. Budhni said that "Oh! You escaped, I killed your son. Now it's your turn, I will kill you too." Then my wife came running and told me. It was 15th August. Then (morning) I saw Budhni Majhi coming towards our house, I then brought the dao from my house ad ran towards her and hacked on her neck with dao from front. Instantly Budhni fell on the ground. Immediately, I came to my house, wore a shirt and appeared in Halwating Police Station with the dao. On being asked by Police I said that I had cut a person. Police had written down the report. They kept me inside the Page No.# 7/10 lockup of the Police Station. Next day they brought me to the court. I have only this much to say.

      Ext. No. 1(1)                                   R.O & A.C.
      Case No. 185(S-S)/10                            Sd/- Illegible
      15.3.12                                         Judicial Magistrate
                                                    1st Class:Sivasagar
                                                     Ext.No. 1(2)
                                                    Case No.185(S-S)/10
                                                     15.3.12"

20. Law is well settled that conviction of an accused can be based on confession if the same appears to be voluntary, truthful and admissible in evidence. In the case of AbdulBahab Abdulmajid Shaikh Vs. State of Gujarat reported in (2007) 4 SCC 257, the Supreme Court has observed that merely because the confession was retracted later that does not mean that the confession was not voluntary in nature. However, whether the accused was willing to give confession voluntarily or not is to be determined from his mental state at the time when he gave the confession. In the aforesaid decision, the Hon'ble Supreme Court has also emphasized on the truthfulness and admissibility of the confession.

21. In the light of the law laid down in the aforesaid decision, let us now examine as to whether the confession of the accused recorded under Section 164 Cr.P.C. (Ext-1) can be regarded as voluntary, truthful and admissible in evidence.

22. From a bear reading of the confession made by the accused, it would be evident that the accused had claimed that after hacking on the neck of the victim he had returned back to his house, wore a shirt and thereafter went to the Halwating Police Station with the dao. However, the IO (PW-6) has stated that he had apprehended the accused from his house and also seized the dao which he found at the place of occurrence. If the version of PW-6 is to be accepted than obviously the confessional statement of the accused Ext.-1 cannot be accepted as truthful.

Page No.# 8/10

23. It is also to be noted herein that the appellant had denied in his statement under Section 313 Cr. P.C. that he had made statement before the Magistrate voluntarily. There is not even an iota of evidence to corroborate the version reflected in the confessional statement. As such, in the absence of corroboration, we are unable to agree with the submission of the learned APP that the confession was voluntary and truthful merely because the Magistrate had followed the procedural norms while recording the statement of the accused.

24. As noticed above, the post mortem report mentions as many as nine wounds on the body of the victim. However, the inquest report (Ext.-6) clearly mentions that there was only "one wide cut"

mark seen on the nape of the neck and there was no other injury found on examining the dead body. Therefore, the findings of the post mortem report clearly contradicts the inquest report (Ext-6). Even the dao seized by the IO was not sent for FSL report. Such contradictions and omissions are glaring and, in the opinion of this Court, would have a material bearing in the outcome of the prosecution case.

25. We have also noticed that during his examination under Section 313 of the Cr.P.C., the accused had denied the circumstances put to him including the circumstances that he had made statement before the Magistrate voluntarily. The accused has also denied that he had hacked Budhni with a dao. Surprisingly enough, no statement regarding the contents of the confessional statement, which was undoubtedly of an incriminating nature, was put to the accused, so as to give him an opportunity to explain his stand. In other wards, save and except, proposing that the accused had made a voluntary statement before the PW-3, no other circumstances, pertaining to the confessional statement (Ext-1), was put to the accused so as to afford him a fair opportunity to deny or explain the same.

26. In the case of Ganesh Gogoi (Supra), the Supreme Court has observed that if the examination of the accused under Section 313 Cr.P.C. is not done in a fair manner, the same would Page No.# 9/10 have the effect of vitiating the trial itself.

27. After going through the statement of the accused recorded under Section 313 Cr.P.C., we are of the unhesitant opinion that the appellant/accused was not afforded proper opportunity to respond to all the incriminating circumstances existing against him including the contents of his confessional statement.

28. In the above context, it would also be significant to note herein that as per the case projected by the prosecution, the appellant had killed the deceased by suspecting her to be a "witch" on the ground that she had destroyed the foetus of his first child while in the womb of his wife. However, there is not even an iota of evidence in support of such assertion. As a matter of fact, the prosecution has not even called the husband of the deceased as a witness although materials available on record indicates that he was at home when the incident took place. The aforesaid omissions and commissions on the part of the prosecution, coupled with the contradictions, as noted above, leaves us with the impression that this is yet another instance not only of botched up investigation but also perfunctory trial.

29. It is no doubt correct that the victim being, a lady, had lost her life in a tragic incident after receiving multiple grievous injury on her body with a sharp weapon. However, that by itself cannot be a ground to convict the appellant unless the charge under Section 302 of the IPC brought against him is established beyond all reasonable doubt by adducing cogent evidence, which in our opinion, has not been done in this case.

30. For the reasons mentioned hereinabove, we are of the opinion that the prosecution has failed to establish the charge brought against the appellant beyond reasonable doubt. As such, the conviction of the appellant is held to be unsustainable in law.

31. We find from the record that the appellant was granted bail by order dated 05/02/2018 passed in connection with IA(Crl) 367/2017 arising out of this appeal. Therefore, we allow the appeal Page No.# 10/10 by setting aside the impugned judgement and order dated 24/03/2017 passed by the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 185 (S-S)/2010.

The appellant is herby acquitted and is set at liberty.

Send back the LCR.

                            JUDGE                                           JUDGE




Sukhamay



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