Gauhati High Court
Anup Nath And Ors. vs State Of Assam on 31 January, 2007
Equivalent citations: 2008(1)GLT255
Author: Aftab H. Saikia
Bench: Aftab H. Saikia
JUDGMENT H. Barua, J.
1. The appellants stood charged under Sections 120 (B), 364,302/34 and 201 of the Indian Penal Code for causing death of Purna Kanta Nath on 30th of November, 1992. All the three appellants were tried by the learned Ad-hoc Additional Sessions Judge, Darrang, Mongaldoi and at the conclusion of the trial, three appellants were convicted under Sections 302/201/120 (B) read with Section 34 of the IPC and awarded sentence as under:
(i) Life Imprisonment and fine of Rs.3,000/ - to each of the appellants and in default of payment of fine R.I. for one year each under Sections 302/34 IPC;
(ii) Life imprisonment with fine of Rs. 3,000/- to each of the appellants and in default of fine, R.I. for six month under Sections 120(B)/34 IPC; and
(iii) Rigorous imprisonment for five years with fine of Rs. 1,000/- each and in default of payment of fine, R.I. for six month under Sections 201/34 IPC.
2. Being highly aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence, this instant appeal is preferred praying for setting aside and quashing of the same on various grounds contained in the memorandum of appeal.
3. We have heard Sri J.M. Choudhury, learned senior counsel, and assisted by Mr. D. Talukdar and Mr. N.P. Das, for and on behalf of the appellants. We have also heard Sri B.S. Sinha, learned Additional Public Prosecutor, Assam, for and on behalf of opposite party, the State of Assam.
4. The factual matrix of the prosecution case in a nutshell is as under:
(a) Deceased Purna Kanta Nath was the elder brother of the informant, Sri Atul Ch. Nath Deceased was an employee of the office of the Chief Judicial Magistrate, Sonitpur, Tezpur and during the relevant period he was discharging his duties as "Nazir". Deceased was a resident of village-Bambeseria, Tezpur and he had some accounts in the name of his children with Ashirbad Finance Company, Tezpur and had been depositing the monthly installments at the rate of Rs. 50/- through the appellant Anup Nath, the agent of the said Finance Company, in each account. It is to be noted that appellant Anup Nath is the nephew of the deceased, while two other appellants are the friends of the appellant, Anup Nath. On 30.11.1992 at around 9.30 a.m., deceased left for his office. He took his bicycle with him. There arose some anomalies in respect of non-deposit of monthly installment in the accounts. On the day of leaving for the office, he infomied his wife P. W. 7 that he would visit Ashirbad Finance Company on that day aid will go directly from office. Around 3.30 p.m. on the same day deceased left office after taking leave from the Head Assistant (C.W.I) saying that he would go to Ashirbad Finance Company for some discussion about his deposit with the Bank Manager. Deceased did not return home. Search was made for his whereabouts. Family members could not locate his whereabouts.
(b) On the next morning at about 5.45 a.m., deceased's brother Atul Chandra Nath lodged FIR (Ext. 1) with the SHO, Tezpur Police Station. Case was registered. Police started investigation. During investigation, appellants, Anup Nath and Chitta Ranjan Hazarika were arrested and both confessed that deceased Purna Kanta was murdered by them with the help of co-appellant, Mukut Jyoti Mahanta for some monetary transactions with Shri Anup Nath and the deceased. Co-appellant, Mukut Jyoti Mahanta absconded. Thereafter appellants Anup Nath and Chitta Ranjan Hazarika led the police to the place of occurrence and discovered dead body of deceased Purna Kanta Nath from inside a pit of a newly constructed sanitary latrine of SonarigaonHigh School in presence of a Magistrate.
(c) Police held inquest on the dead body of the deceased in presence of the Magistrate and prepared inquest report (Ext. 11) in presence of witnesses. Police seized wearing clothes, shoes etc. from the dead body of the deceased. Police also seized wearing clothes belonging to the appellants, which were allegedly used at the time of the commission of murder. Further bloodstained bricks and cover of the septic tank were also seized, which were sent for expert opinion. It is to be noted that police seized these articles vide Ext. 7 to Ext. 10 and Ext. 15 to 19. A sketch map (Ext. 20) of the place of occurrence, was also drawn. Appellants Anup Nath and Chitta Ranjan Hazarika were produced before the judicial Magistrate for recording their confessional statement. Appellant Anup Nath was produced before Sri S.P. More (PW 3), the Additional Chief Judicial Magistrate, Tezpur, while appellant Chitta Ranjan Hazarika was produced before Smti Rumikumari Phukan (PW-2), a Judicial Magistrate, 1st Class, Tezpur on 4.12.1992 for recording their statements. Ext. 4 and Ext. 2 are the confessional statement of appellants Anup Nath and Chitta Ranj an Hazarika respectively.
(d) After inquest, dead body was sent to Tezpur Civil Hospital for post-mortem examination. Doctor Mohesh Chettry (PW-4) conducted autopsy and prepared post-mortem report (Ext. 6).
(e) Charge-sheet (Ext. 22) was laid against the appellants under Sections 365/302/201 read with Section 34 of the IPC showing appellant, Mukut Jyoti Mahanta as absconder. Later on he was apprehended and produced before the court of Session.
(f) Trial commenced after framing of charges. Altogether 17 witnesses were brought unto the witness box including one as court witness and another as defence witness. At the conclusion of the trial, learned trial court convicted and awarded sentences to the appellants as above.
5. Feeling aggrieved by and dissatisfied with the legality and correctness of the judgment impugned so recorded by the learned trial court, this present appeal has been filed.
6. Admittedly, there is no eyewitness to the occurrence. Prosecution case primarily hinges on the circumstantial evidence leading to discovery and also confessional statement. Before adverting to this question, it would be appropriate to see whether the death of the deceased was homicidal or not. In this context, it would also be necessary for us to deal with the question whether the deceased on 30th of November 1992 came to his office and did not return till next day. Evidence of PW-1, PW-5, PW-6, PW-7 and PW-9 and all other witnesses including C.W. 1 goto show that on the relevant day, deceased Purna Kanta Nath went for his office and did not return. On the next day his dead body was recovered from a pit of a newly constructed sanitary latrine on being led and shown by the appellants Anup Nath and Chitta Ranj an Hazarika. This aspect has been confirmed by all the witnesses vide their evidence hereinbefore mentioned. For the purpose of arriving at a decision whether the death of deceased Puma Kanta Nath was homicidal or not, we must take resort to the evidence of PW-15 and PW-4. PW-15 is the Investigating Officer while PW-4 is Doctor Mohesh Chettry, who conducted autopsy.
7. From the evidence of PW-15, it would appear that after discovery of the dead body inside the pit of the latrine, the same was taken out and inquest of the dead body was conducted in presence of the witnesses. Inquest report (Ext. 11) speaks of presence of injury on forehead, face, right-eye, neck, knee-joints and cheek. Face was found swollen. Presence of blood on the head and face was also found. No excretion was in the penis and anus. Therefore, many injuries were found by PW 15 while conducting inquest over the dead body of the deceased.
8. Now, in view of the evidence of PW-15 (Sri Munin Das) in the context of the inquest, let us scrutinize and see whether the question can be answered in affirmative. Dr. Mohesh Chettry has been examined as PW-4. At the relevant point of time, he was at Tezpur Civil Hospital, later on, known as Kanak Lata Civil Hospital, Tezpur and according to him on 3.12.1992 he conducted autopsy on the dead body of deceased, Purna Kanta Nath and found the followings:
1) Body was emaciated rigormotis absent.
2) Echymosis on right side of the chest, abdomen and thigh.
3) Lacerated wound on face with fracture of frontal bone.
4) Skull lacerated, ribs of both side fractured.
5) Heart was found raptured, pericardium was full of blood.
It is further stated by this witness that Injuries were ante-mortem in nature, he opined that cause of death was due to shock and haemorrhage as a result of raptured heart. The opinion and findings of PW-4 go to show that deceased, Purna Kanta Nath received those injuries when he was alive. Therefore, the question can be safely answered that the injuries were homicidal in nature.
9. Most deserving question, which arises at this stage is:
(a) Who caused the death of said Purna Kanta Nath?
10. In this context, let us consider the evidence of witnesses, who are found to be con versant with the leaving of the deceased for the office and also to Ashirbad Finance Company, opening of accounts in the said company and the deposit of money in those three accounts. At the very out set we like to examine the evidence of PW-7 (Smti Swarna Devi), who is the wife of the deceased, Puma Kanta Nath. This witness by her evidence has projected a picture in regard to missing of her deceased-husband on 30.11.1992. According to her evidence, her husband late Puma Kanta Nath left for his office on that day at about 9.30 a.m. He had taken his bi-cycle with him. Her husband usually returned home at 5.30/6 p.m., but on that day he did not return home as usual. Search was made for him, but they did not receive any information. Head Assistant (C.W.-1), Srimanta Deka in that regard had stated that deceased left for. Ashirbad Finance Company at around 2.30 p.m. to attend a meeting threat. This witness further stated that deceased opened three accounts in the name of their children and the money had been deposited through the appellant Anup Nath, who was an agent of the said Ashirbad Finance Company. As some anomalies arose in those accounts in respect of deposit of money, deceased asked appellant Anup Nath to trace out the predecessor Manager. She (PW-7) further stated that she heard this conversation in between the appellant Anup Nath and the deceased, Purna Kanta Nath. Anup Nath also asked the deceased to attend the meeting of the Finance Company. She (PW-7) further stated that two days before the occurrence, Anup Nath came to their house. She (PW 7) further stated that after 4 days of missing of her deceased-husband, dead body of her husband was recovered by police on being identified by Anup Nath from inside the sceptic tank of sanitary latrine of Sonarigaon High School. Thus, the evidence of PW-7 gives an impression that deceased had been depositing monthly installments of three accounts opened in the name of deceased's children at the rate of Rs. 50/- per month through the agent-appellant Anup Nath. Further, it also gives another impression that there arose some anomalies in respect of deposit of money for which, the appellant Anup Nath suggested the deceased to attend meeting of the Finance Company for that purpose Therefore conversation regarding anomalies was overheard by this witness and the said discussion was held two days before missing of deceased.
11. The factum of opening of accounts, deposit of money through appellant Anup Nath, anomalies in those accounts, suggestion to attend meeting, leaving of deceased at around 2-30 p.m. on 30.11.92, missing of the deceased, recovery of dead body of Puma Kanta Nath from inside the tank of sanitary latrine on being led and shown by accused-appellant Anup Nath etc. cumulatively points towards appellant Anup Nath at this stage.
12. Evidence of CW-1 (Srimanta Deka) also supports in the context of leaving of office by the deceased at around 2.30 p.m. saying that he would visit the Ashirbad Finance Company.
13. In this context, let us scrutinize the evidence of PW-5, PW-6, PW-8, PW-9, PW-11 and PW-14. PW-5, the seizure wit ness is the driver of 407 Mini Bus, which was taken on requisition by police and the bus was taken to a nearby school. However, the said vehicle was driven by another driver. Police seized material Ext. 6,7 and 8 vide Ext. 9, which were bricks stained with blood. He further stated that police seized shoes, ladies cycle, and jeans trousers blue in Colours, pair of old brown coloured trousers in presence of witnesses. Police also seized one long pant, one shirt, two sweaters, one ganjee and one under pant stained with blood vide Ext. 16, the seizure memo. Vide Ext-17 police also seized two plastic bags containing vegetables.
14. Evidence of PW-6 (Sri Upen Nath) goes to show that deceased Purna Kanta Nath was his maternal uncle. He had gone to his office but did not return back. He alongwith others searched for him but failed to locate his whereabouts. Deceased's bicycle was found near Singri bridge, which had been seized by police. He further stated that police arrested appellant Anup Nath. He heard about the recovery of dead body of deceased Puma Kanta Nath at the instance of appellant Anup Nath. This piece of evidence speaks that he searched for the whereabouts of deceased Purna Kanta Nath when he (deceased) did not return home. Later part of his evidence in respect of recovery of the dead body of the deceased cannot inspire confidence since he did not accompany the police.
15. PW-8 (Sri Prafulla Kumar Nath) is the co-villager of deceased Purna Kanta Nath. He stated that Purna Kanta Nath did not return home from office. Rigorous search was made by this witness alongwith Upen, Jatin and others. They also went to the house of CW-1 (Head Assistant), who reported them that three youths called deceased to Ashirbad Finance Company for discussion. Appellant Anup Nath was the agent of the said finance company. It was also told by C W-1 that they all went to Anup's house. On the way they met Anup's brother, who told them that Anup was not present at home. On the next morning they again went for search. They found Purna's bicycle near Singri bridge, which had been seized by the police. His further evidence is that the dead body of Purna Kanta Nath was recovered from a sceptic tank of newly constructed sanitary latrine near Sonarigaon High School. This witness in this cross examination stated that police took help of sniffer dog which went to the house of appellant Mukut Jyoti Mahanta. He was of course not found in his residence. Further, he stated that appellant Mukut used to visit the house of Anup Nath.
From the above piece of evidence, we have found a corroboration regarding seizure of bicycle from near Singri bridge by police, which belonged to deceased Puma Kanta Nath, in between the evidence of PW-6 and PW-7. This witness was not present at the time of recovery of the dead body. Therefore, this evidence in respect of recovery of dead body cannot be taken into confidence.
16. PW-9 (Sri Jatin Nath) is the brother of the deceased Purna Kanta Nath. He stated that appellant Anup Nath is a cousin by relation. He also stated that on 30.11.1992 deceased went for his office but did not return home. Deceased was searched but not found. On the next morning they found deceased's bicycle lying near Singri bridge. Police seized the bi-cycle. While he was at his residence, he came to know that Puma's dead body had been taken to hospital. He went there and had seen the dead body. He noticed some injuries on the head of the deceased. So, we have found corroboration from the piece of evidence regarding missing of the deceased and the factum of recovery of bi-cycle of the deceased from near Singri Bridge.
17. Evidence of PW 11 (Sri Rabindra Kumar Bora) is found to be very very vital in this case. He categorically stated that on the day of occurrence deceased went for his office but did not return home. On the next day his bicycle was found lying near Singri bridge, Police seized the bicycle. He further stated that police arrested appellants Anup Nath and Chitta Ranjan Hazarika in connection with missing of Puma Kanta Nath. He went to police station and was found both the appellants there at. Both the appellants stated while in the police station that some thing had happened inside the Sonarigaon High School near Parbotia. He further stated that police called him unto the Police Station at night and took him to Sonarigaon High School in a Mini Bus alongwith police personnel and some other persons. He further stated that a Magistrate too came in a car. Both the appellants divulged that they killed Puma Kanta Nath inside the school and kept his dead body concealed inside the sceptic tank of the said school. The Magistrate was also present at that time. Both the appellants showed the pit of sceptic tank and at the instruction of Magistrate, a sweeper uncovered the lid of the tank and had taken out the dead body of Puma Kanta Nath from inside. The Magistrate prepared a document and obtained his signature.
From this piece of evidence, we have found that both the appellants confessed before him and other persons including police personnel and the Magistrate that they killed Puma Kanta Nath inside the school and kept his dead body inside the sceptic tank. It is also found from his evidence that the dead body was recovered on being shown by both the above named appellants.
18. PW-13 is Sri Hiren Mahanta. He is the Lower Division Assistant of the office of the Superintending Engineer, Tezpur Mechani cal Circle, Irrigation, Tezpur. His evidence is that during the relevant period he was the Secretary of Parbotia High School and on the relevant day the School chowkider took him unto the school saying that police wanted him. He was informed by the chowkidar that a dead body was recovered from the school. In his presence police seized the lid of the sceptic tank, vide Ext. 15. His evidence, therefore, goes to show that he was neither present at the time of recovery of the dead body, nor was a witness to the inquest conducted by police on the dead body. From his evidence, it is found that police seized the lid of the sceptic tank. Evidence of PW 14 (Sri Harekrishna Mahanta) also goes to show that he was a seizure witness in respect of the seizure of the lid of the latrine from Sonarigaon High Schools.
19. PW-15 (Sri Munin Das) is the Investigating Officer of this case. His categorical evidence is that he was Officer-in-Charge of Bebejia Police Out-Post. The Station House Officer of Tezpur Police Station on 1.12.1992 received an FIR from Sri Atul Ch. Nath and registered a case accordingly. He was entrusted with the investigation. During investigation, he examined the witnesses and visited the place of occurrence. Suspicion arose as against appellant Anup Nath, one of the inhabitants of Bambeseria and he was accordingly taken to police station for interrogation. During interrogation, the said Anup Nath was found to have been involved and accordingly he arrested him. It is further stated by this witness that appellant Anup Nath confessed before him that he in association with his friends, namely, Mukut Jyoti Mahanta and Chitta Ranjan Hazarika (both are appellants) kidnapped the deceased, killed him and concealed his dead body. Appellant Anup Nath also agreed to produce the dead body. It is his further evidence is that he sought help of a Magistrate before the Deputy Commissioner, Sonitpur, Tezpur and Magistrate Sri Binod Kr. Deka (PW-10) was deputed. He alongwith some other police personnel and Anup Nath, the appellant alongwith the Magistrate had gone to Sonarigaon High School and on being shown by the appellant Anup Nath, he found the dead body of Purna Kanta Nath kept concealed in a newly constructed sanitary pit of a latrine of Sonarigaon High School. The dead body was taken out of the pit and inquest was conducted in presence of the Magistrate. The dead body was sent to Tezpur Civil Hospital for post-mortem examination.
20. His evidence further goes to show that on the basis of Anup's statement, appellant Chitta Ranjan Hazarika was arrested. He seized bricks and stones stained with blood, pump shoes worn by deceased, blood stained piece of wood and a lid of newly constructed sceptic tank. Clothes worn by both the appellants at the time of occurrence were also seized. Both the appellants confessed their guilt and accordingly he made a prayer before the Chief Judicial Magistrate for recording the confessional statement. Further it is stated that on the basis of the statement of appellant Anup Nath that appellant Mukut Jyoti Mahanta was also involved, he tried to arrest him but failed. The brick, stone stained with blood, some hairs of the deceased from head, clothes worn by all the three appellants were sent to Forensic Science Laboratory for chemical analysis. It is also stated by him that he also seized the bicycle, which belonged to deceased vide Ext.-10. Further, he seized two plastic bags containing some vegetables found lying near the sceptic tank vide Ext.-11. His evidence also goes to show that he drew a sketch map of the place of occurrence. After completion of the investigation he submitted charge sheet against the appellants.
21. So, from the scrutiny of the evidence of the witnesses, namely PW-1, PW-5, PW-7, PW-8, PW-9, PW-11, PW-12, CW-1 and PW-15 we have found the following facts and circumstances appearing in this case:
(i) That deceased Purna Kanta Nath was a Nazir of the office of the Chief Judicial Magistrate, Sonitpur, Tezpur;
(ii) That deceased during his life time opened three accounts in Ashirbad Finance Company in the name of his children at monthly installment of Rs. 50/- each;
(iii) That the deceased deposited monthly installment through appellant Anup Nath, who at the relevant time was agent of the said Finance Company;
(iv) That there arose some anomalies in the deposit of money in the said accounts and accordingly deceased Purna Kanta Nath and appellant Anup Nath had a discussion to sort out the said anomalies. Anup suggested the deceased to have a discussion with the predecessor Manager;
(v) That on 30.11.1992 while the deceased started for his office at the time of leaving house he told his wife that would visit the Ashirbad Finance Company and would go directly from office;
(vi) That deceased left the office at 2.30 p.m. after obtaining permission from CW-1;
(vii) That deceased did not return home and searched was made for his whereabouts;
(viii) That on the following morning bicycle which are deceased had taken alongwith him while going to office was found lying near Singri bridge;
(ix) That appellant Anup Nath was suspected and he was taken to Police Station. He confessed that he alongwith his friends, namely, Chitta Ranjan Hazarika and Mukut Jyoti Mahanta committed murder of the deceased and dead body was kept concealed inside the newly constructed secptic tank of Sonarigaon High School;
(x) That the dead body of the deceased was recovered from inside the sceptic tank on being led and shown by Anup Nath, the appellant;
(xi) That some blood stained bricks and stones were seized by the police alongwith the shoes worn by the deceased at the time of commission of the offence by the appellants; and
(xii) That appellants Anup Nath and Chitta Ranjan Hazarika confessed of their guilt before the Magistrate.
22. At this stage it would be pertinent for this Court to scrutinize the evidence of PW-15 (Sri Munin Das) and PW-11 (Sri Rabindra Kumar Bora) in the context of leading the police personnel and the Magistrate unto Sonarigaon High School. PW-11 in his evidence categorically stated that police had taken both the appellants Anup Nath and Chitta Ranjan Hazarika in a Mini Bus alongwith him and some other persons unto Sonarigaon High School. He also stated that both the accused had showed the sceptic tank where the dead body of Puma Kanta Nath was kept concealed. This fact of taking the appellants Anup Nath and Chitta Ranjan Hazarika unto the school does not find support from the evidence of PW-15, Sri Munin Das, the Investigating Officer of this case. His evidence is that appellant Anup Nath, who alone taken to Sonarigaon High School and the dead body was recovered from inside a sceptic tank as shown by him and thereafter on the basis of the statement of appellant Anup Nath that he alongwith appellants Chitta Ranjan Hazarika and Mukut Jyoti Mahanta killed the deceased and kept concealed, arrested appellant Chitta Ranjan Hazarika. However, appellant Mukut Jyoti Mahanta absconded and he could not be arrested then and there. But the fact remains that both the appellants, namely, Anup Nath and Chitta Ranjan Hazarika confessed their guilt and accordingly gave confessional statement before the Magistrate (Judicial).
23. At this stage, it would be appropriate for this Court to make survey of the evidence of PW-12, Sri Prasanta Kumar Kalita. It is in the evidence on record that the bricks and the stones stained with blood and some clothes worn sent to Forensic Science Laboratory for chemical examination and opinion. This witness stated that the Director of Forensic Science Laboratory, received two sealed paper packets with cloth cover from the Chief Judicial Magistrate, Sonitpur in connection with Tezpur P.S. Case No. 1091/92. These exhibits, which had been received by him were examined and report, Ext. 14 was sent. In his evidence, it is found that exhibits which were sent and examined gave positive test for human blood. It is found from the record that the bricks and stones stained with blood were seized from the place of occurrence. The evidence of having positive test for human blood after examination of the bricks, stone etc. infers another circumstance towards commission of crime.
24. We have, after examination and scrutiny of the evidences of the above named witnesses come to a conclusion that the circumstances, which find place in Paragraph 21 clearly go to show that the deceased Purna Kanta Nath had been killed on the relevant day of missing and his dead body had been kept concealed in a sceptic tank newly constructed latrine of Sonarigaon High School, which had been recovered from there on being shown by the appellant Anup Nath (appellant Chitta Ranjan Hazarika also as per evidence of PW-11).
25. Now let us see whether all the three appellants can be roped under the charges leveled against them. It is stated by PW-15, the Investigating Officer and some of the witnesses that appellant Anup confessed that he alongwith appellants Chitta Ranjan Hazarika and Mukut Jyoti Mahanta killed the deceased Puma Kanta Nath Appellant Chitta Ranjan Hazarika was arrested and he too confessed his guilt. Both the appellants Anup Nath and Chitta Ranjan Hazarika were produced before the Judicial Magistrate for recording their confessional statement. Therefore, confessional statements were recorded by PW-2 and PW-3.
26. The evidence of PW-2 goes to show that appellant Chitta Ranjan Hazarika was produced before her for recording of his confessional statement. The Magistrate cautioned the appellant Chitta Ranjan Hazarika about the import of the confessional statement so to be made and its consequences. It is also found from her evidence that enough time for reflection was offered to appellant Chitta Ranjan Hazarika to ponder over the statement so to be made by him and during that period he was put in her chamber beyond the reach of police personnel. He was put under the charge of her Bench Assistant and the Peon. It is also found that after reflection, he was again put some questions in order to ascertain the voluntariness of the confessional statement so to be made by the appellant. Appellant Chitta Ranjan Hazarika despite of such caution and putting question etc. wanted to give a confessional statement, which the Magistrate considered that he wanted to give confessional statement voluntarily. This witness after observing all the formalities recorded the confessional statement of appellant Chitta Ranjan Hazarika. It is to be noted there at this stage that appellant Chitta Ranjan Hazarika did never complaint before PW-2 that he had been assaulted or forced or induced to make such statement.
27. When appellant Anup Nath was produced before PW-3, the Additional Chief Judicial Magistrate, he also cautioned about the import the consequence of the confessional statement so to be made by him. He was offered enough time for reflection. Before recording his confessional statement, he was again examined by putting some questions to ascertain the voluntariness of the same. This witness recorded confessional statement of appellant Anup Nath being satisfied that he made the confessional statement voluntarily. This appellant also before recording of the confessional statement did not make any complaint that he was assaulted, forced or induced to make such a statement. Ext-2 is the confessional statement of appellant Chitta Ranjan Hazarika and Ext. 4 is the confessional statement of Anup Nath.
28. Both these witnesses were thoroughly cross-examined by the defence. From the scrutiny of the cross-examination of both the witnesses, this Court finds that nothing tenable had been brought in favour of the appellants. Defence by cross-examining the witnesses failed to rebut the evidence of PW-2 and PW-3.
29. During trial it is found that both the appellants Anup Nath and Chitta Ranjan Hazarika retracted from their confessional statement. Before adhering to the law laid down for acceptance of such confessional statement we propose to discuss this matter at later stage.
30. Now, at this stage we are sanguine to make a discussion as to the acceptability of the evidence in regard to leading to discovery. On this count, Sri J.M. Choudhury, learned senior counsel gave much stress that the fact of leading to discovery as claimed by the prosecution cannot be entertained since the aspect does not fall within the purview/ambit of Section 27 of the Evidence Act. Sri J.M. Choudhury, learned senior counsel relying on the substantive law as incorporated in Section 27 of the Evidence Act argued that such fact of leading to discovery cannot be accepted since the Investigating Officer failed to record the statement of appellant Anup Nath in verbatim that too in first person. Sri J.M. Choudhury, learned senior counsel argued that it is obligatory on the part of the Investigating Officer to record such statement that too while the accused is in custody of police. There is no dispute in respect of custody of appellant Anup Nath but there is no evidence on record that the statement as required under the law had been recorded in verbatim of appellant Anup Nath by PW15. Section 27 of the Evidence Act reads as under:
Section 27. How much of information received from accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or nor, as relates distinctly to the fact thereby discovered, may be proved.
31. This section, therefore, provides that a fact of discovery may be proved as against the person accused of an offence when such fact discovery is made on the basis of information so received from him while he is in custody of Police Officer. If the two conditions as incorporated in the section are not proved, the fact of discovery cannot be proved as against the person accused of an offence. Here in bur case we have found that the appellant Anup Nath was arrested on suspicion by PW-15, the Investigating Officer, in view of missing of deceased on 30.11.1992 and during interrogation he confessed that he alongwith two other appellants killed deceased Purna Kanta Nath. Admittedly, Anup Nath, the appellant at the time of giving the information ofkilling of deceased Puma Kanta Nath was not in police custody.
32. It was argued by Sri J.M. Choudhury, learned senior counsel for the appellants that the factum of discovery of dead body from inside the pit of a newly constructed sanitary latrine of Sonarigaon High School cannot be proved either as against appellant Anup Nath or appellant Chitta Ranjan Hazarika since PW-15, the Investigating Officer failed to record their statement in verbatim. We have already come across that on the basis of the statement of appellant Anup Nath that he alongwith other two appellants killed deceased Purna Kanta Nath and kept concealed his dead body inside the pit of a newly constructed sanitary latrine of the school, PW-15, the Investigating Officer arrested appellant Chitta Ranjan Hazarika and also tried to arrest Mukut Jyoti Mahanta, the third appellant. It is said by P W-15 that appellant Chitta Ranjan Hazarika also confessed before him that all the three appellants together committed murder of deceased Purna Kanta Nath. PW-15 by this time also failed to record the statement of appellant Chitta Ranj an Hazarika in respect of the information so given by him in the context of murder of Purna Kanta Nath. So, form the above we have found that PW-15 did not record the information provided to him by both the appellants, namely, Anup Nath and Chitta Ranj an Hazarika.
33. The fact remains that both the appellant abovenamed led PW-15 and other persons to the school and had shown the newly constructed sanitary latrine of the school where they kept concealed the dead body of Purna Kanta Nath which had been recovered in presence of a Magistrate (Executive).
34. Apparently, PW-15, the Investigating Officer committed lapse on his part for non-recording the information so given by the appellants. Sri Choudhury, therefore taking the assistance of lapses on the part of the Investigating Officer (PW-15) put a question mark in regard to the acceptability of the factum of discovery of the dead body from inside the pit of the newly constructed sanitary latrine of Sonarigaon High School. Sri J.M. Choudhury, learned senior counsel for the appellants has drawn our attention to the decision of this Court in the case of Pandav Koya v. State of Assam reported in 2006 (1) GIT 267 wherein this Court held as follows:
22. To attract Section 27 of the Act, the statement of the accused leading to discovery of fact is required to be recorded and too in first person singular. Unless the confession or statement through which the accused leads the police or Magistrate to the place where he concealed the dead body is reduced in writing, it is unsafe to believe and rely upon it. The exact statement of the accused person leading to information and discovery is needed to make it admissible in evidence under Section 27 of the Act. In the instant case, neither the record nor the testimony of the witnesses does reveal that such statement of the appellant who is in police custody confessing the murder of the deceased and information leading to discovery of the incriminating articles used in committing the crime was ever recorded either by PW-6, the Magistrate or PW-8, the I.O. and hence the applicability of Section 27 of the Act cannot be brought in the case at hand.
35. The above decision makes it obligatory on the part of the Investigating Officer or police officer concerned in whose custody the person accused of an offence is/was in custody to record his statement in respect of the information so supplied on the basis of which the fact is/was discovered. Failure on his part to record such information makes the fact of discovery not admissible in evidence. Sri Choudhury referring to the case of Joyram Ingty v. State of Assam reported in 2006 (4) GLT 33 also submitted that the ratio laid down in the case of Pandav Koya (supra) has also been applied in the present case by this Hon'ble High Court while deciding the case. Sri Choudhury, therefore, taking aid of the case law so referred submitted that the factum of discovery of the dead body from the pit of newly constructed latrine of Sonarigaon High School on being led and shown by the appellants Anup Nath and Chitta Ranjan Hazarika cannot be proved as against them.
36. In the case of Alphus Munda and Ors. v. State of Assam reported in 1996 (3) GLT 568, this Court in paragraph 12 of the judgment has observed as under:
12. It is a case where the sole basis of conviction, the confessional statement has been found to be not voluntarily made. The so called recovery cannot afford any corroboration. The evidence of an individual witness does not become reliable merely because it has been corroborated by a number of witness of the same branch, corroboration must come from independent reliable source See Muluwa v. State of M.P. AIR 1976 SC 989.
37. In this case it was held by this Court that it is not obligatory on the part of the Police Officer concerned in whose custody the person accused of an offence is/was, to record the information on the basis of which the fact is discovered. Verbal information so provided by the person accused of an offence can also be proved as against him. So, the decision in Alphus Munda appears to be per contra of the decision in the case of Joyram Ingty v. State of Assam (supra). We are not informed whether the conflict, appearing in both the cases in the context of application of Section 27 of the Evidence Act has been settled by larger bench of this Court.
38. In the context of requirement of recording of disclosure statement under Section 27 of the Evidence Act, Hon'ble Supreme Court in the cases of Suresh Ch. Bahri v. State of Bihar Gurbachan Singh v. State of Bihar and Rajpal Sharma v. State of Bihar reported in 1994 Cri.L.J. 3271 in paragraphs 71 and 72 of the judgment speaks as under:
71. The two essential requirements for the application of Section 27 of the Evidence Act are that (I) the person giving information must be an accused of any offence, and (2) he must be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW-59 and others to the hillock where according to him he had thrown the dead body of urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the brief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence.
72. In the light of the facts stated above we are afraid the two decisions mentioned above and relied on by the learned Counsel for the appellants challenging the discovery and seizure of the incriminating articles discussed above. In Nari Santa AIR 1945, Patna 161 (supra) the accused of that case was charged for the theft and it is said that in the course of investigation the accused produced certain articles and thereafter made a confessional statement and it was in these facts and circumstances it was held that there was no disclosure statement within the meaning of Section 27 as the confessional statement was made only when the articles were already discovered having been produced by the accused. Similarly, the decision rendered in Abdul Sattar AIR 1986 SC 1438 (supra) also does not help the appellants in the present case. In the case of Abdul Sattar (supra) recovery of wearing apparels of the deceased is said to have been made at the instance of the accused of that case more than three weeks after the occurrences from a public place accessible to the people of the locality and, therefore, no reliance was placed on the disclosure statement and recovery of the wearing apparels of the deceased. But in the present case it was soon after the arrest of the appellant Gurbachan Singh that he took the Police Officer while in custody to the place where according to him he had thrown the dead body of the Urshia wrapped by the incriminating articles. Those articles were not found lying on the surface of the ground but they were found after unearthing khudgraha dumping ground under the hillock. Those articles were neither visible nor accessible to the people but were hidden under the ground. They were discovered only after the place was pointed out and it was unearthed by the labourers. No fault therefore could be found with regard to the discovery and seizure of the criminating articles.
39. In the cases reported in 1994 Cri.L.J. 3271 (supra), Hon'ble Supreme Court held that non-recording of disclosure statement and non-examination of public witness as regards the said discovery would be of no consequence. Present case also stands in the same footing. P.W.-15 did not record the information though both the appellants made disclosure statement in regard to the killing of Puma Kanta Nath and concealment of the dead body in the pit of the sanitary latrine of the school and their ability to lead police and show the dead body.
40. In the case of State of Rajasthan v. Bhup Singh , Hon'ble Supreme Court in para 14 of the judgment speaks for conditions for applicability of Section 27 of the Evidence Act, which reads as under:
14. It is clear from the above evidence that PW-12 discovered the fact that the respondent had buried Article 4 the pistol. His statement to the police that he had buried the pistol in the ground near his house, therefore, gets extricated from the ban contained in Sections 25 and 26 of the Evidence Act as it became admissible under Section 27. The conditions prescribed in Section 27 for unwrapping the cover of ban against admissibility of the statement of the accused to the police have been satisfied. They are: (1) A fact should have been discovered in consequence of information received from the accused; (2) he should have been accused of an offence; (3) he should have been in the custody of a police officer when he supplied the information; (4) the fact so discovered should have been deposed to by the witness. If these conditions are satisfied, that part of the information given by the accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. It is immaterial whether the information was supplied in connection with the same crime or a different crime. Here the fact discovered by the police is not Article 4, the pistol, but that the accused had buried the said pistol and he knew where it was buried. Of course, discovery of the said fact became complete only when the pistol was recovered by the police.
41. In paragraph 14 of the judgment, it is nowhere stated that recording of information so provided by the persons accused of an offence in police custody is not a condition precedent in respect of the fact so discovered on the basis of the said information.
42. Thus, we are of the view that the ratio laid down by the Hon'ble Supreme Court in the cases reported in 1994 Cri.L.J. 3271 (supra), (1997) 10 SCC 675 (supra) can be applied in the present appeal. We have found from the evidence of the witnesses that on the basis of the disclosure statement of appellants Anup Nath and Chitta Ranjan Hazarika, the dead body of the deceased Puma Kanta Nath had been recovered from the pit of newly constructed sanitary latrine of Sonarigaon High School on being led and shown by both the appellants.
43. The arguments so advanced by Sri J.M. Choudhury, learned senior counsel in the context of non-applicability of provisions of Section 27 of the evidence act cannot be accepted as having force in view of the ratio laid down by the Hon'ble Supreme Court in the cases reported in 1994 Cri.L.J. 3271 (supra), 1997 10 SCC 675 (supra). We therefore reject the argument so put forward by Sri J.M. Choudhury.
44. We have also found from the record and the evidence of PW-2, PW-3, PW-15 that appellants Anup Nath and Chitta Ranjan Hazarika made their confessional statements which were reduced into writing by PW-2 and PW-3 and proved as Ext. 2 and Ext.4 Sri J.M. Choudhury while arguing this case submitted that the confessional statement of appellants Anup Nath and Chitta Ranjan Hazarika cannot be taken into consideration and added upon since the statements were not recorded by PW-2 and PW-3 as per requirement of law. It was submitted by him that no reasonable time for reflection was afforded to the appellants to ponder over the confession so to be made by them and that being so voluntariness of the same cannot be accepted. Both the appellants were produced before PW-2 and PW-3 and on the same day. Their confessional statements were recorded. So the time given for reflection was not enough. It was further argued by him that both the appellants were taken to court by police personnel and though the appellants were stated to be put in the office chamber of the respective Magistrate, no police influence had erased from their mind and recording of confessional statement of the appellants on the same day cannot be said to be voluntary. That apart, both the appellants, namely, Anup Nath and Chitta Ranjan Hazarika retracted from their confessional statement while examining under Section 313 of the Cr.P.C. It was argued by Sri J.M. Choudhury, learned senior counsel that the confessional statement was obtained by the investigating agency by applying duress, force, etc. and therefore it cannot be taken into consideration and no conviction can be based on such retracted confession.
45. Sri J.M. Choudhury in support of his argument relied upon the decision reported in AIR 1995 SC 980 wherein it has been ob served as under:
Unless the court is satisfied that the confession is voluntary in nature, it cannot be acted upon and no further inquiry as to whether it is true and trustworthy need be made. Thus, wherein a murder case, the Magistrate recording confessional statement of accused under Section 164 Cr.P.C. did not make any serious attempt to ascertain the voluntary character of confessional statement, it could not be said that the confessional statement of accused voluntary and therefore, the conviction of accused fully on the basis of such confessional statement would not be sustainable.
46. Further, Sri J.M. Choudhury also re lied on the decision reported in (1995) 3 GLR 443 wherein this Hon'ble High Court held as under:
Confessional statement of accused cannot be treated as the base document around which the rest of the evidence would circle and in that circumstance confession can only be an aid to the evidence.
47. Per contra, on the submission so advanced by Sri J.M. Choudhury, learned senior counsel, Sri B.S. Sinha, learned Additional Public Prosecutor, appearing for and on behalf of the respondent, the State of Assam, submitted that the evidence of P W-2 and PW-3 makes it palpably clear that both the appellants, Anup Nath and Chitta Ranjan Hazarika made their confessional statement voluntarily and nothing involuntariness can be inferred from their evidence. It was also argued by learned Additional Public Prosecutor that the defence while cross-examining the witnesses, namely, PW-2 and PW-3 failed to rebut the evidence of PW-2 and PW-3. From the evidence of PW-2 and PW-3, we have found that they (PW-2 and PW-3) adhered to the provisions strictly and no deviation can be detected. It is true that the confessional statement of both the appellants were recorded by PW-2 and PW-3 on the day of production before them. This fact does not necessarily mean that PW-2 and PW-3 did never resort to the requirement under Section 164 of the Cr.P.C. for recording the confessional statement of an accused/appellants. We have found from their evidence that both the appellants were cautioned carefully and enough time of reflection was given to them. Before recording their confessional statement, we have also found that some searching questions were put to them in order to see/contain the voluntariness of the confessional statement so made by each of them. There is no evidence available in the record to show that at the time of keeping the appellants in the chamber of the respective Magistrates (PW-2 and PW-3) and till the time of recording of their confessional statement, both the appellants were under police influence. We have also found from the evidence of PW-2 and PW-3 that neither of the appellants, namely, Anup Nath and Chitta Ranjan Hazarika did complaint about the inducement and police torture etc. to the recording Magistrate. So, composite reading of the evidence of PW 2 and PW-3, we are of the view that the appellants made their confessional statement voluntarily. The argument so advanced by Sri J. M. Choudhury, learned senior counsel, therefore, cannot assume to put a stigma into the confessional statement so given by the appellants and recorded by PW-2 and PW-3 simply saying that their were voluntarily made. We do not find any force in the argument advanced by Sri J.M. Choudhury.
48. The next question to be considered is whether on the basis of the circumstances appearing in the case as referred in paragraph No. 21 of this judgment coupled with the confessional statement of appellants Anup Nath and Chitta Ranjan Hazarika, all the 3 (three) appellants can be convicted under the charges framed by the learned trial court.
49. In the case of Kashmira Singh v. State of Madhya Pradesh , the evidentiary value of confession and use of corroboration as a rule of practice and prudence has been discussed in paragraphs 8 and 10 of the judgment, which observed as under:
The confession of an accused person is not evidence in the ordinary sense of term as defined in Section 3. 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 should 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 and confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid the confession he would not be prepared to accept (Paras 8 and 10.
50. In the case reported in (1994) 1 GIR 398, this Hon'ble Court discusses the value of retracted confession, which reads as under:
In respect of retracted confession by an accused, it is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy evidence. There is no definite law that a retracted confession cannot be the basis of the conviction but it has been laid down as a rule of practice and prudence not to rely on retracted confession unless corroborated.
Law laid down in the case reported in (V994) 1 GLR 398 (supra) requires that a retracted confession of an accused is unsafe to base conviction unless it is corroborated by trustworthy evidence. It requires a prudence not to rely on retracted confession unless uncorroborated.
51. Now, we are to see whether the conviction on the basis of retracted confession of the appellants, Anup Nath and Chitta Ranjan Hazarika, conviction of them alongwith appellant Mukut Jyoti Mahanta can be recorded with the aid of the circumstances earlier discovered by us and referred in Paragraph No. 21 of the present judgment. The answer would be apparently "yes". There is nothing to disbelieve in the evidence of other witnesses from whose evidence, the circumstances drawn and referred above has immersed. The circumstances thus appearing lend corroboration towards the retracted confession of appellants Anup Nath and Chitta Ranjan Hazarika. We, therefore, do not find any ground to accept the argument of the learned senior counsel for the appellant, Sri J.M. Choudhruy
52. Now, another question, which strikes our mind is whether on the basis of contention of the appellants, Anup Nath and Chitta Ranjan Hazarika, the conviction as against appellant, Mukut Jyoti Mahanta can be sustained. The evidentiary value of confession and use of corroboration and prudence has been discussed by the Hon'ble Supreme Court in the case of Kashmira Singh v. State of Madhya Pradesh (supra), which reads as under:
The confession of an accused person is not evidence in the ordinary sense of term as defined in Section 3. 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 should 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 and confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid the confession he would not be prepared to accept (Paras 8 and 10.
53. Therefore, the circumstances, which ordain from the mouths of the prosecution witness if coupled together with the confessional statement there would be (sic. hardly) any ambiguity in the involvement of the three appellants in committing murder of Purna Kanta Nath. All the given circumstances appearing and the confession so made by the appellants Anup Nath and Chitta Ranjan Hazarika create an unbreakable chain showing complicity of all the three appellants.
54. If some one pauses a question regarding motive behind the murder of the deceased, our answer would be "yes". From the evidence, we could gather that appellant Anup Nath, being the agent of the Ashirbad Finance Company used to deposit the monthly installment in the three accounts. Subsequently, there were anomalies in the deposit of the installment. Appellant Anup Nath also suggested deceased to visit the Finance Company. From the day of visit, deceased did not return home. In the next day dead body was recorded. This fact, therefore, given an inference that the appellants hid the matter to eradi-cateMhe denial. Hide hidden hid.
55. Having considered the facts and circumstances of the case, evidence on record and the law laid down by the Hon'ble Supreme Court and this Hon'ble High Court, we are of the view that the judgment and order of conviction rendered by the learned trial Court does not suffer from any error or irregularity. We do not find any ground to interfere with the judgment and order of conviction so rendered by the learned trial Court. We accordingly affirmed the same. The anneal fails.