Gauhati High Court
Bharka Mahali vs The State Of Assam on 8 April, 2019
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
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GAHC010115202016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 73/2016
1:BHARKA MAHALI
VERSUS
1:THE STATE OF ASSAM
2:SRI SUNIL MAHALI
S/O-LT. ROBILAL MAHALI
VILL-NAPUK BABUDONGA GAON
P.S.-SONARI DIST.-SIVASAGAR
ASSAM
Advocate for the Petitioner : MR.M B U AHMED
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
Date : 08-04-2019 A.M. Bujorbarua, J.
1. Heard Mr. M.B.U. Ahmed, learned amicus curiae for the appellant and Mr. M. Phukan, learned Addl. P.P. for the State of Assam.
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2. An ejahar dated 29.07.2013 was lodged by Sunil Mahili, son of Late Rabilal Mahili, interalia, stating that his mother was found missing since midnight of 28.07.2013 at about 5 AM and on the subsequent day, she was found clad only in a blouse, lying dead on the road near their house.
3. Postmortem report shows two bruises on the upper front part of the neck on either side of the mid line. Bruise on the right side measuring 2 cm diameter and on left side measuring 3 cm on average diameter were also found. The tongue was cut on the right edge in front and clotted blood around the wound was noticed. Two long abrasions on each side of the labia majora of the vagina placed along the long axis measuring 3 cm x ½ cm was also found along with clotted blood. It was opined that the cause of death was due to asphyxia as a result of throttling.
4. There is also a confessional statement of the accused and from the manner, in which, the confessional statement was recorded, it appears that all the required procedure of law for recording a confessional statement under Section 164 CrPC was duly followed, including the accused being explained about the consequence of such confessional statement as well as the period of reflection required to be given to the accused was also given. In his confessional statement (English translation), the accused stated as follows:
"........................... I inserted a lathi in her vagina and it stared bleeding. Then I sat on her chest and strangled her to death. I pressed her neck for half an hour. Later she died."
5. The confessional statement of the accused that he had strangulated the deceased to death by pressing her neck for half an hour appears to be in conformity with the medical evidence in the postmortem report. Further the PW-1, Satya Mahali had stated that the deceased was virtually naked and she was only wearing a blouse and that blood was oozing out of the ears nose and there were injuries on the dead body.
6. PW-2, Dr. Ranjit Kumar Gogoi, who conducted the postmortem examination had also Page No.# 3/5 deposed as regards the injury and cause of death as mentioned in the postmortem report. PW- 5, Sunil Mahali had stated in his deposition that blood was also coming out of the private part of the deceased. PW-6 Sushil Mahali also deposed that blood was found in the private parts of the deceased.
7. PW-1, PW-4, PW-6, PW-7 and PW-8 also deposed that there were dragging marks in the place and the blood of the deceased was found leading to the house of the accused. PW-9, the Investigating Officer had deposed that he had forwarded the accused to the court for recording of his confessional statement and upon it being recorded, he had collected the same.
8. The evidences led by the prosecution witness are inconformity with that of the confessional statement made by the accused as well as the medical evidence in the post- mortem report and the deposition of PW-2, the doctor.
9. Mr. M.B.U. Ahmed, learned amicus curiae raises an issue that in the statement under Section 313 CrPC, the accused had retracted his confessional statement. In this aspect, we refer to the pronouncement of the Supreme Court rendered in Sankaria Vs. State of Rajasthan, reported in (1978) 3 SCC 435, wherein, it was taken note of that confessional statement was recorded in that case on 14.06.1974 and after the prosecution evidence was closed and when the accused was examined under Section 313 CrPC, it was for the first time that the accused had retracted the confessional statement and took the plea that it was made under duress. In the circumstances, it was accepted that such confessional statement was voluntarily made.
10. The Apex Court in Ram Singh Vs. Central Bureau of Narcotics reported in (2011) 11 SCC 347, wherein in paragraphs-17 and 18, a similar view was taken that confessional statement was made voluntarily and retraction was attempted only at the stage of examination under Section 313 CrPC. Similar of the view was taken by this Court in Nirmal Moran Vs. State of Assam reported in 2003 (2) GLT 266.
11. In the instant case, we take note of the fact that the confessional statement was recorded on 31.07.2013, whereas the statement under Section 313 CrPC was recorded on 26.02.2015. In view of the similarity of the circumstances as that of the aforementioned matters before the Supreme Court, we are inclined to accept the view taken by it that in the given circumstances, the confessional statement is to be accepted to have been voluntarily Page No.# 4/5 made.
12. In the evidence of the prosecution witnesses, we do not find any mitigating circumstances in favour of the appellant, which may require this court to take a different or lenient view in the matter. On the other hand, we have noticed certain circumstances to the extent that in the confessional statement of the accused as well as medical evidence and postmortem report and the deposition of other prosecution witness regarding injury on the private parts of the deceased, a further offence under Section 376 Indian Panel Code may also have been committed by the appellant. On the date of the occurrence, the amended Section 376 IPC was in force, where insertion of any other object would also bring the offence within the definition of rape under Section 375. The confessional statement reveals that the appellant had inserted a stick in the vagina of the deceased, and Section 375 of the Indian Panel Code defines that rape is committed, even if the perpetrator inserts, to any extent, any object or a part of the body, not being the penis into the vagina of the victim. Although the appellant is not convicted under Section 376 IPC, nor there is any charge against him under the said section, but as materials are available to indicate the occurrence of such act, we take it to be an aggravating circumstances against the accused.
13. In view of the above, we disinclined to interfere with the conviction and sentence of the appellant. Accordingly, we uphold the conviction and sentence of the appellant dated 07.12.2015 rendered by the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 254 (S-C) of 2013, under Section 302 IPC.
14. The jail appeal accordingly stands dismissed.
15. Appreciating the assistance rendered by Mr. M.B.U. Ahmed, learned Amicus Curiae, it is directed that he be paid Rs. 7500/- for the assistance rendered by him, on furnishing of a copy of this judgment.
16. Send down the LCR.
Page No.# 5/5 JUDGE JUDGE Mkk Comparing Assistant