Gauhati High Court
Shri Nirmal Moran vs State Of Assam on 14 February, 2003
Equivalent citations: 2003CRILJ2361
Author: Ranjan Gogoi
Bench: Chief Justice, Ranjan Gogoi
JUDGMENT Ranjan Gogoi, J.
1. This appeal is directed against the judgment and order dated 29-5-97 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 42(T) of 1991 convicting the accused appellant under Section 302 of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/-, in default to undergo Rigorous Imprisonment for a further period of 2 years.
2. The prosecution case, in short, is that on 26-6-89 at about 6.30 AM, PW-3 Lakhikanta Baruah lodged a written ejahar (exhibit-1) in the Digboi Police Station stating that at about 7 p.m. in the evening of the previous day, while his son Arun Baruah accompanied by Bipin Moran (PW-4) was proceeding by the village path, the accused appellant along with some other members of his family, surrounding the aforesaid Arun Baruah and hacked him to death. In the ejahar, lodged, it has further been stated that PW-4 Bipin Moran reported the incident to the first informant. On receipt of the aforesaid ejahar Digboi PS Case No. 90 of 1989 was registered and investigation in respect thereof commenced. According to the prosecution, even before the ejahar (exhibit 1) was lodged in the Digboi Police Station, at about 9.30 p.m. of the day of occurrence i.e. 25-6-89, the accused appellant surrendered before the Makum P. S. whereafter he was forwarded to Digboi PS and was arrested. In course of investigation of the case, the other accused persons found to be involved in the offence were arrested and the alleged weapon of assault i.e. a Naga dao along with the wearing apparels of the present accused appellant were seized by police. On completion of investigation, police submitted charge sheet against seven accused persons, in all, including the present accused appellant. The case being exclusively triable by the Court of Sessions, the same was committed to the Court of the Sessions Judge at Tinsukia and a charge under Sections 148/149/302, IPC was framed against all the accused persons. As all the accused pleaded not guilty to the charge framed and claimed to be tried, the trial commenced, in course of which, the prosecution examined as many as 12 witnesses. The defence did not adduce any evidence. At the conclusion of the trial, the learned Sessions Judge by the impugned judgment and order convicted the accused appellant as aforesaid giving rise to the present appeal. It may be noticed at this stage that the other accused persons were acquitted by the learned Sessions Judge by the presently impugned judgment and order dated 29-5-97.
3. It may be appropriate, at this stage, to briefly consider, the evidence tendered on behalf of the prosecution in the course of the trial against the accused-appellant.
PWs-1, 4 and 6 were examined by the prosecution as the alleged eye-witnesses of the occurrence. All the aforesaid 3 witnesses were declared hostile by the prosecution and cross-examined. In the judgment and order under challenge, no reliance has been placed on the evidence of the aforesaid 3 hostile witnesses and the learned Sessions Judge, in the facts and circumstances of the case, thought it proper to discard the evidence of the said witnesses.
The evidence of PWs-2, 3 and 5 examined by the prosecution has a common thread. Though the aforesaid witnesses do not claim to have witnessed the occurrence, their version is that the incident was reported and described to them by PW-4 Bipin Moran. PW-4 who was declared hostile, however, denied being an eye-witness to the occurrence. In the aforesaid situation, the learned Sessions Judge thought it proper not to rely on the testimony of PWs-2, 3 and 5 examined by the prosecution in the case.
PW-7 Smt. Kuntala Bora who is a LDC in the office of the CJM, Tinsukia was examined by the prosecution to prove the handwriting and the signatures of the Magistrate who had recorded the confession of the present accused appellant. As the Magistrate who had recorded the said confession was examined as PW-10, the evidence of PW-7 would hardly be of any significance.
PWs-9 and 11 are witnesses to the seizure of the alleged weapon of offence and the wearing apparels of the present accused appellant. PW-12, Khiresh Deuri, a police officer attached to Makum PS was examined by the prosecution to prove that the accused appellant had surrendered at the Makum PS along with a Naga dao at about 9.30 p.m. on 25-6-89. PW-13 is the Investigating Officer of the case.
4. The prosecution in the instant case as noticed, did not rely on the evidence of the alleged eye-witnesses examined. As evident from a reading of the judgment and order passed by the learned trial Court, the prosecution sought for and obtained the order of conviction of the accused appellant on the basis of the confessional statement made by the accused appellant recorded under Section 164, Cr. P. C. by PW-10 Dhireswar Deka, CJM. The prosecution also relied on the evidence of Doctor witness PW-8 Dr. N. Sonowal in corroboration of the confession of the accused appellant as recorded by PW-10. The aforesaid aspects of the case will, therefore, have to be primarily considered by us in the present appeal.
5. The confessional statement of the accused appellant recorded under Section 164 of the Code of Civil Procedure, 1973 has been proved and exhibited as Exhibit 2 in the case. The translated version of the aforesaid statement, as recorded, may be extracted below:
"At about 8 p.m. on Sunday, Arun Barua went to my house in an inebriated condition and caused trouble there. Because of that I killed him by cutting him with a dao and appeared at Makum police station, I did not notice whether he died or not. Now I know that he died, I have nothing else to say, I killed him alone. He assaulted me under influence of liquor, I have my sisters -- he abused in filthy language."
The medical evidence which according to the prosecution corroborates the confessional statement may also be usefully extracted herein below :
"External appearance: A stout built male dead body stained with blood. Regor mortis was present. Face was pale stained with blood. Eyes and mouth were closed. Nostrils and ears were healthy.
Injuries : (1) Incised wound 4 Nos., one above the other covering an area of 15 x 8 cm in size with wide gapping in the left side of the neck. Skin, muscles, vessels, nerves, trachea, oesophagus and 3rd cervical vertebrae were cut.
(2) Incised wound 20 x 3 cm size in the left side of occipital region from below the left ear transversely. Skin, muscles, occipital bone and occipital lobe of the brain were cut.
(3) Incised wound 10 x 3 cm size was present in the left temporal region running ante-reioposteriorly which was brain deep.
(4) Incised wound 5 x 3 cm size in the left side parietal region above the eye brow running anterioposteriorly which was brain deep.
(5) Incised wound 15 x 5 cm size in the left lateral abdominal wall running above downward and obliquely. Skin, 8th and 9th and 10th ribs were cum.
The injuries were antemortem in nature. The death, in my opinion, was due to shock and haemorrhage as a result of injuries sustained. The injuries were homicidal in nature and caused by a heavy sharp cutting weapon. Each of injury Nos. 1 to 4 is independently sufficient to cause the death. Ext. 3 is the postmortem report. Ext. 3(1) is my signature."
6. There is hardly any doubt that a confessional statement duly proved can act as the sole basis of conviction in a case. The rule requiring corroboration of a confessional statement is not a rule of law, but is essentially a rule of prudence. Corroboration of a confessional statement is normally sought for by the Court to satisfy its conscience, particularly in cases where the confession has been subsequently retracted. The twin tests applied by the Courts before relying on a confessional statement are with regard to its truthfulness and its voluntary character. On application of the aforesaid two tests, if the Court is satisfied that the confessional statement has been made truthfully and voluntarily, the Court may act upon such a confessional statement subject to the requirement of corroboration. It is, therefore, on the aforesaid basis that we propose to proceed to determine the culpability of the accused appellant.
7. We have perused the evidence of PW-10, Shri Dhireswar Deka i.e. the Magistrate who had recorded the confessional statement of the accused appellant. We have also perused the prescribed form, for recording the confessional statement containing the entries under the heads/columns made by PW-10 as well as the statement of accused appellant as recorded and marked as Exhibit 2(5). A cogent reading of the oral evidence of PW-10 and the contents of exhibit 2 would go to show that the accused appellant was produced before PW-10 on 27-6-89 at about 10.30 a.m. The accused appellant was examined by PW-10 with regard to the date and time of his arrest and the accused was also informed by PW-10 that PW-10 is a Magistrate; that the accused is not bound to make a confession; that if a confession is made by the accused, it may be used as evidence against him and further, that he should not make any statement which is not true. Thereafter, he was sent to jail Hajot for reflection to be produced at 11 a.m. on the next date i.e. 28-6-89. On 28-6-89 the accused was again produced before PW-10 at about 11 a.m. On this occasion also, the accused was cautioned and similar questions were put and explained to the accused and once again he was given time for reflection till 2.30 p.m. During this period i.e. from 11 a.m. to 2.30 p.m. on 28-6-89 the accused was sitting in the Court room by the side of the Bench Assistant. At 2.30 p.m., PW-10 again put six questions to the accused appellant to apprise the accused appellant of the fact that PW-10 was a Magistrate and not a police officer and further that even if the accused did not confess he would not be sent to police custody. Question as to whether the accused had been tortured by police and whether he was speaking on his free will and not at the pressure and instance of any one, were put to the accused. As all the answers to the aforesaid questions put to the accused by PW-10 satisfied the said witness that the accused appellant had understood the implications of making a confessional statement and that he was willing to make a confession of his own will, the Magistrate i.e. PW.-10 proceeded to record the statement which recording was completed at 2.45 p.m. In the statement of the accused, as recorded by PW-10, the accused had confessed to have killed the deceased Arun Baruah by cutting him with a dao. The evidence of the doctor witness i.e. PW-8 discloses that in the postmortem as many as five incised wounds in the scalp were found and the doctor has opined that the injuries were ante-mortem and caused by a heavy sharp cutting weapon.
8. Mr. S.N. Chetia, learned counsel for the accused appellant in the course of his arguments has challenged the reliance placed by the learned trial Court on the aforesaid confessional statement by contending that the accused appellant having retracted his confessional statement in his examination under Section 313, Cr. P. C. and the accused having stated that he was compelled to make the confessional statement under duress and influence of the police, no reliance ought to have been placed on the confession as it was not made voluntarily. Learned counsel has further contended that the evidence of PW-10 discloses that at the time when Magistrate had recorded the confessional statement there was a police man in close vicinity and from the aforesaid fact it must be inferred that the accused continued to be under pressure and influence of the police at the time when he had made the confession. Learned counsel has also argued that though time for reflection was allowed to the accused on the earlier occasions, when he again was produced before PW-10 at 2.30 p.m., no time for reflection was allowed before the Magistrate actually proceeded to record the confessional statement. That apart, it is contended that the whole exercise of formulating the questions and putting the same to the accused; obtaining his answers and recording the same in exhibit 2 and further the recording of the statement of the accused, could not have been completed by the Magistrate within fifteen minutes. As the record i.e. exhibit 2 would go to show that the entire exercise was completed between 2.30 p.m. and 2.45 p.m., no reliance can be placed on exhibit 2. Rather, it is argued, that this Court should hold that what is reflected in exhibit 2 was not a true account of the actual proceeding and therefore, the document as a whole should be construed to be a highly unsafe one for sustaining the conviction recorded against the accused appellant.
9. We have considered the submissions advanced by the learned counsel for the appellant. In the preceding paragraphs of the present judgment, the sequence of events leading to the recording of confessional statement as unfolded the evidence of PW-10 has been duly noticed by us. The oral evidence of PW-10 is borne out by the entries made in the form prescribed for recording of confessional statement i.e. exhibit 2. It is our considered view that there are no suspicious or unnatural circumstances to doubt the oral testimony of PW-10. That apart, such oral testimony stands fully corroborated by the contents of the document i.e. exhibit-2. The oral and documentary evidence with regard to the confessional statement amply demonstrate that, time and again, the accused was given due caution and adequate time for reflection was allowed to him on as many as two different dates. All necessary questions to ensure that the confessional statement was being made voluntarily and truthfully were put by PW-10 to the accused appellant and it is only thereafter, upon due satisfaction, that PW-10 proceeded to record the confessional statement of the accused. The argument advanced by the learned counsel for the appellant that a police constable was present in the Court room while the confessional statement was recorded by PW-10 in his chamber, hardly deserves any serious consideration as the evidence of PW-10 discloses that the constable present in the Court was assigned duties in that particular Court. The other argument advanced on behalf of the accused appellant that the recordings in exhibit-2 could not have been made within fifteen minutes leaves as equally unimpressed, as on perusing the entries made in exhibit-2 between 2.30 p.m. and 2.45 p.m. on 28-6-89, we see no reason why the same could not have been completed in fifteen minutes time. The decision of the Apex Court in the case, reported in AIR 1996 SC 3477 relied upon by the learned counsel for the appellant in support of the proposition that in the instant case the mandatory provisions of Section 164(2) of the Code of Criminal Procedure, 1973 were not complied with in the instant case, does not, in any manner assist the accused appellant as the said decision turns on its own facts and in any case is not an authority for the proposition that after expiry of the time given for reflection, before the confessional statement is actually recorded, time for reflection again has to be given, as contended on behalf of the accused appellant.
10. For the reasons alluded to in the various foregoing paragraphs, we are inclined to hold that the confessional statement of the accused appellant was made truly and voluntarily. The accused appellant retracted the confessional statement in his examination under Section 313, Cr. P. C. after a lapse of almost 8 years. That the accused was all along at liberty to retract his confessional statement and such retraction, eventually made, was at a very belated stage are relevant facts which cannot be lost sight of. Furthermore, the confessional statement particularly with regard to the use of a dao stands fully corroborated by medical evidence on record.
11. In view of the foregoing discussions we find no merit in this appeal. Accordingly, the appeal shall stand dismissed and the judgment and order dated 29-5-97 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 42(T)/91 shall stand affirmed.