Gauhati High Court
Sri Khirendra Brahma vs State Of Assam & Anr on 15 September, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal No. 322 of 2014
Sri Khirendra Brahma,
S/o Late Ramesh Ch. Basumatary
R/o village Dakhin Kajalgaon,
P.O. Simlaguri, P.S. Dhaligaon,
District - Chirang (BTAD), Assam. ............ Appellant
-Versus-
1. The State of Assam,
2. Smti. Pramila Narzary,
W/o Sri Prabhat Narzary,
R/o village and P.S. Sidli,
District - Chirang, BTAD, Assam. ............ Respondents
-BEFORE-
HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH
HON'BLE MR. JUSTICE N. CHAUDHURY
Advocate for the appellant : Mr. AK Bhattacharyya
Sr. Advocate
Mr. SC Biswas,
Advocate
Advocate for the Respondents: Mr. KA Mazumdar,
Additional Public Prosecutor,
Assam
Date of hearing & Judgment : 15.09.2016
Page 1 of 9
Criminal Appeal No. 322/2014
JUDGMENT & ORDER
(N. Chaudhury, J)
Appellant Khirendra Brahma has challenged his conviction and sentence in Sessions Case No. 110 (D)/2009 under Section 302 of the IPC. The aforesaid Sessions case arose out of Dhaligaon P.S. Case No. 95/2008 under sections 302/201/34 of the IPC. Ejahar in this case was lodged by one Smti. Pramila Narzary stating that her daughter Bijulee Narzary aged about 22 years married to Khirendra Brahma had been killed by the accused Khirendra and his family members and buried her dead body in the sand on the river bank. After recovery of her daughter's dead body with the help of the local people from the bank of Kujia River, the ejahar was lodged.
2. After completing investigation, police charge sheeted 4 accused persons including the present appellant out of whom Ramesh Basumatary died and so trial was held against 3 accused persons including the appellant. The learned Sessions Judge framed charges under sections 302/201/34 of the IPC against all the accused persons who, however, pleaded not guilty and claimed to be tried.
3. In course of trial, prosecution examined 8 witnesses but thereafter learned Public Prosecutor filed an application before the learned Sessions Judge for examining two more witnesses as Court Witnesses. Ultimately, in exercise of power under section 311 of the Code of Criminal Procedure, as many as 7 court witnesses were examined. The three accused persons were examined under section 313 of the Code of Criminal Procedure on the basis Page 2 of 9 Criminal Appeal No. 322/2014 of the materials disclosed by the PWs and CWs and basing on extra judicial oral confession allegedly made by the appellant, the learned Sessions Judge convicted the appellant under section 302 of the IPC and acquitted the other two co-accused persons. This judgment and order dated 03.09.2014 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No. 110(D)/2009 has been called in question in the present appeal.
4. We have heard Mr. AK Bhattacharyya, learned senior counsel assisted by Mr. SC Biswas for the appellant and Mr. KA Mazumdar, learned Additional Public Prosecutor on behalf of the State. We have also perused the lower court records.
5. The informant, Pramila Narzary who was examined as PW 1 stated in course of her examination-in-chief that deceased Bijulee Narzary had affairs with accused Khirendra and so they were married although they belonged to two different religions. They were blessed with a daughter. The victim died about 3 months ago. One Purandar Singha from the village of the accused informed that dead body of Bijulee was found in nearby river. PW 1 claimed to have gone to the river along with her daughter Sulekha Narzary but did not see the dead body. They saw the dead body only after the police had recovered it. The head of the dead body was missing. According to PW 1, accused Khirendra admitted in presence of public that he had killed Bijulee. In course of her cross examination, she admitted to have stated before police that dead body had become almost unrecognisable as it had been eaten away by fish and insects etc.
6. PW 3, Kanaklal Basumatary and PW 4, Radhika Brahma did not cast any light in regard to the occurrence. However, PW 5, Nityananda Basumatary stated that hearing about a dead body floating on Kujia river, he went to look at it and Page 3 of 9 Criminal Appeal No. 322/2014 found that the head of the dead body was missing. It was dead body of a woman. Villagers told him that wife of Khirendra had gone missing and that the dead body could be hers. He was the Gaon Bura of the village at that time.
7. PW 6, Nipun Chakraborty, held disinterment of the dead body in the capacity of Additional Deputy Commissioner of the district. The dead body was exhumed from a pit. It contained injuries on breast and vagina. The dead body was completely naked.
8. PW 7, Dr. Parbati Kr. Doley, found penetrating wound over both breasts and cut injury over vagina apart from bruise injuries over both lower limbs. According to him, cause of death was severe haemorrhage from cut injuries and they were ante-mortem in nature. He proved post mortem report as Exhibit 3 which was under his signature.
9. PW 8, Rudra Kalita, was the Investigating Officer in the case. According to him, PW 1 lodged ejahar on 24.08.2008 stating that dead body had been recovered from Kujia river on 22.08.2008 and that it was the dead body of her daughter Bijulee Narzary. On receipt of the ejahar, he registered police case, started investigation and visited the place of occurrence. He arranged for inquest of the dead body by Executive Magistrate and got post mortem examination of the dead body. Having received the post mortem report, he submitted Exhibit 4 charge sheet against the accused persons.
10. CW 1, Prabhat Narzary is the father of the victim. According to him, the accused persons used to commit atrocities on his daughter as the accused persons are Hindus whereas the victim was from a Christian family. One day, a woman's dead body came floating on Kujia river. Having received the Page 4 of 9 Criminal Appeal No. 322/2014 information, his wife and another daughter went to see the dead body. His wife identified the dead body to be that of Bijulee. He thereafter enquired to the accused persons about whereabouts of his daughter when Khirendra informed that Bijulee had gone to Guwahati. Being suspicious, he informed other people who put pressure on Khirendra and then he admitted that having killed Bijulee he had thrown her dead body into the river. In course of cross examination, he disclosed that accused Khirendra was apprehended from Bongaigaon Refineries Petrochemicals Ltd. (BRPL) complex. When the people who escorted Khirendra from inside the BRPL complex slapped him and asked about the incident, he confessed of having killed Bijulee. Thereafter he was handed over to the police.
11. CW 2, Sulekha Narzary, is the daughter of PW 1 and sister of victim Bijulee. She disclosed that on 22.08.2008 they came to know that a dead body had been floating on Kujia river. They went there and saw that the head of the dead body was missing. However, observing certain marks on the dead body she could recognise that it was the dead body of Bijulee. The family of the accused persons could not give any information. Then public caught hold of the accused, interrogated him and thereupon he confessed of having killed Bijulee.
12. CW 3, Lachu Basumatary, was a member of the public who had apprehended the accused person from BRPL complex. According to him, ABSU volunteers brought accused Khirendra from BRPL gate and handed over him to them. According to him, Khirendra made the confession at the gate of BRPL complex.
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13. CW 4, Raju Basumatary, is yet another member of the public before whom accused Khirendra had allegedly confessed of having killed Bijulee. After the accused had confessed to the public, he was handed over to police.
14. CW 5, Uday Islary, stated that having come to know about floating of a dead body on the Kujia river closed to the house of the accused persons, he along with others went there to have a look at it and noticed injuries on the chest of the dead body. Bijulee's mother identified the dead body. The head of the dead body was missing. Accused Khirendra remained in hiding inside the BRPL complex at that time. He was a driver. PW 5 and others claimed to have informed the ABSU members who brought Khirendra out of BRPL complex and when they questioned, the accused admitted to have killed Bijulee. The accused was thereafter handed over to the police.
15. CW 6, Sushanta Basumatary, similarly deposed that they went to see the dead body floating on the river. Its head was missing. Bijulee's mother identified the dead body on the basis of certain marks and then police came and took the dead body for autopsy.
16. CW 7, Surajit Basumatary, disclosed that the ABSU members brought out Khiren from BRPL office. Khiren initially denied of having any knowledge about the incident but subsequently confessed to have killed Bijulee. In course of cross examination, he disclosed that public had assaulted Khiren. Police came thereafter.
17. In course of his examination under section 313 of the Code of Criminal Procedure, the appellant maintained that he did not kill his wife Bijulee who had disappeared from their house and that unknown youths went to BRPL complex Page 6 of 9 Criminal Appeal No. 322/2014 looking for him. As he came out, they severely assaulted him in front of BRPL gate. He was not allowed to see the dead body floating on the river. According to him, he was driving BRPL vehicles at the relevant time.
18. From the evidence of the PWs and CWs what came to light is that victim Bijulee fell in love with accused Khirendra Brahma and accordingly they got married as per social custom. They started living together as husband and wife happily and were blessed with a daughter. CW 1 disclosed that Khiren was required to go out with his vehicle for a couple of days as he was a driver of BRPL. Victim sometimes used to go to her house with her daughter. None of the witnesses disclosed about any specific torture on victim Bijulee. Nobody had any occasion to see that the appellant had assaulted Bijulee at any point of time. From version of the 8 PWs and 7 CWs it has only emerged that accused Khiren was apprehended by ABSU volunteers from inside the campus of Bongaigaon Refineries Petrochemical Ltd. complex. These students and members of public slapped Khiren, then interrogated him and assaulted him. Thereupon he made confession of having killed Bijulee and throwing the dead body in the river. There is no other evidence on record in support of the prosecution story. The learned Sessions Judge relied on this confession and thereupon convicted the appellant. In so doing, the learned Sessions Judge has failed to notice that the alleged confession was made by accused Khiren on being assaulted by the ABSU volunteers and public. The question thus arises whether such extra judicial confession orally given by an accused is reliable.
19. Law in regard to extra judicial confession is well settled. It has to be voluntary, true and corroborated by other evidence. In the case of State of U.P. Page 7 of 9 Criminal Appeal No. 322/2014 v. Raja alias Jalil reported in 2008 CriLJ 4693, the Hon'ble Supreme Court held in paragraph 12 as below:-
"12. That being so, the High Court's view was that the circumstances were not sufficient to fasten the quilt on the accused. The High Court has rightly noted that alleged extra judicial confession was extracted from the accused by assaulting him severely. The injuries clearly indicate that the accused was beaten very badly after he was allegedly apprehended. Therefore, the findings of the High Court that the so- called extra judicial confession was not voluntarily or natural cannot be faulted. Additionally the evidence of mother of the deceased was full of contradictions and inconsistencies."
20. The law relating to confession has been elaborately dealt by the Hon'ble Supreme Court in the case of Rahim Beg and Another v. State of Uttar Pradesh reported in (1972) 3 SCC 759 (para 18), Balwinder Singh v. State of Punjab reported in (1995) Suppl (4) SCC 259 [para 10], Pancho v. State of Haryana reported in (2011) 10 SCC 165 [para 16], Heramba Brahma and another v. State of Assam reported in (1982) 3 SCC 351 [para 18] and Sahadevan and another v. State of Tamil Nadu reported in (2012) 6 SCC 403 [paras 14, 15, 16]. Thus, it is clear that an extra judicial confession has to be voluntary apart from being true. This is because under section 24 of the Evidence Act, a confession caused by inducement, threat or promise is irrelevant in a criminal proceeding. A confession made by an accused person in criminal proceeding under inducement, threat or promise being not admissible in evidence, the alleged confession made in the present case cannot be relied on as the same was extracted from the accused on threat. The CWs have specifically stated in the witness box that the accused person was apprehended by the ABSU members from inside the BRPL complex and subjected to assault. It is only thereafter he made the confession. The Page 8 of 9 Criminal Appeal No. 322/2014 alleged confession in the present case, therefore, is hit by the provision of Section 24 of the Indian Evidence Act, 1872 and the same cannot form the basis of any conviction. There is no other evidence on record to hold that the accused person has committed murder of Bijulee Narzary. The impugned conviction and sentence, therefore, cannot be sustained. Accordingly, the appeal stands allowed. The conviction and sentence of the appellant is set aside.
21. The accused shall be released forthwith from jail provided he is not required in connection with any other case.
22. Send down the lower court records.
JUDGE CHIEF JUSTICE BiswaS Page 9 of 9 Criminal Appeal No. 322/2014