Gauhati High Court
Sanku Nath vs The State Of Assam on 18 January, 2021
Equivalent citations: AIRONLINE 2021 GAU 169
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh, Soumitra Saikia
Page No.# 1/23
GAHC010194162016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/42/2016
SANKU NATH
VERSUS
1. THE STATE OF ASSAM
2:MD. RAHIM UDDIN BARBHUIYA
S/O-LT. MUDASIR ALI BARBHUIYA
R/O-MEHERPUR
PANCHGHORI ROAD
P.S.-SILCHAR
DIST.-CACHAR
ASSAM
:: BEFORE::
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Petitioner : Mr. Z. Hussain, Amicus Curiae.
For the Respondent : Mr. M. Phukan, Addl. P.P.
Date of Hearing : 18.01.2021.
Date of Judgment : 18.01.2021.
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JUDGMENT & ORDER(ORAL)
(N. Kotiswar Singh, J)
Heard Mr. Z. Hussain, learned counsel for the appellant, Amicus Curiae appointed by the Court as well as Mr. M. Phukan, learned Additional Public Prosecutor for the State of Assam.
2. The present appeal has been preferred against the Judgment and Order dated 31.03.2016 passed by the learned Additional Sessions Judge (FTC), Silchar in Sessions Case No. 136/2015 convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and imposing a fine of Rs.1,000/-(Rupees One Thousand Only) in default of payment, to undergo rigorous imprisonment for another 1(one) month.
3. The prosecution case in brief as unfolded in course of the trial is that on 01.03.2015 at around 9:00 p.m. the appellant killed his wife, namely, Bappi alias Mamoni Nath in his rented house at Meherpur by hitting with a Dao (a machete) on her head and neck resulting in her death.
4. A formal FIR was lodged by the house owner on the next day on 02.03.2015, though it appears from the FIR that investigation had started on the night of incident after the police were informed of the incident. It has been mentioned in the FIR that the appellant and the deceased along with her two sons had been residing in the rented premises belonging to the informant for about 5(five) months and they used to fight over domestic matters. It has been mentioned in the FIR that at around 9:00 p.m. on 01.03.2015, one of his tenants called the informant and informed him that the appellant had hacked his wife with a dao and on getting such information he immediately rushed to the place of occurrence and found the deceased was lying in a pool of blood and the appellant, armed with a dao, was sitting beside the deceased. He, immediately, informed the police outpost of the matter. The police, thereafter, came and arrested the appellant. On conclusion of investigation, charge-sheet was filed against the appellant for trial under Section 302 IPC. The prosecution produced as many as 7(seven) witnesses but no witness was produced by the defence.
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5. The learned Additional Sessions Judge on considering the evidence on record and on hearing the parties, convicted the appellant under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life as mentioned above vide Judgment and Order dated 31.03.2016 against which the present appeal has been filed.
6. The prosecution case was supported by seven witnesses and other evidences including Inquest Report, Post-Mortem Report as well as confessional statement made by the appellant recorded under Section 164 Cr.P.C., though the same was retracted during the trial.
7. The prosecution witness, P.W.1 was the informant. He deposed that though he was not an eye-witness, he was informed by one of his tenants soon after the occurrence about the killing of the wife of the appellant. On being so informed the informant rushed to the room of the appellant and found him sitting beside the dead body of his wife. On being asked as to what happened by the P.W.1, the appellant replied that he had killed his wife. The P.W.1 saw the cut injury mark on the forehead of the deceased and a blood stained dao on the bed. He then informed the local Panchayat member. In the meantime, other people also gathered at the place of occurrence. The police was duly informed and accordingly, the police came and arrested the appellant. An inquest was held over the dead body on which the P.W.1 put his signature as a witness which was duly proved before the Court. The P.W.1 was a witness to the seizure of the dao and the mobile phone which was duly proved in course of the trial. The Police also seized one black colour pant and one white shirt of the appellant and one maxi and red colour petticoat of the deceased of which the P.W.1 was also a witness which was duly proved in course of the trial. The FIR which was lodged by the P.W.1on the next day was also proved during the trial.
8. During the cross-examination, though the P.W.1 had admitted that he was not an eye- witness, he stated that about 10/15 minutes of the occurrence on being informed by one of the tenants as mentioned in his examination in-chief, he reached the place of occurrence where he found the appellant alone. He also mentioned about the presence of other persons later at the place of occurrence. From the above what is evident is that though the P.W.1 is not an eye-witness, he was the first person who arrived at the place of occurrence and witnessed the appellant sitting near the dead body of deceased and also saw the weapon of Page No.# 4/23 crime, a dao, at the place of occurrence lying on the bed and he was a witness to the seizure on the aforesaid weapon of crime and other materials from the place of occurrence by the police.
9. P.W.2 is the Ex-Member of the Meherpur Gaon Panchayat. As per his deposition in the trial he stated that he reached to the place of occurrence soon after the occurrence on being informed and on reaching he saw the appellant sitting near his deceased wife and saw a cut injury on the neck of the deceased and heard the appellant talking over the mobile phone that he had killed his wife. He also witnessed the seizure of the dao, mobile phone and some other wearing apparels by the Police. P.W.2, though, was not an eye-witness also appears to be well acquainted with the appellant as well as the deceased, he being a resident of the immediate neighbourhood of the appellant.
10. P.W.3, who is a relative of the deceased who arrived at a place of occurrence on being informed of the incident and saw her deceased sister with her neck slit.
11. P.W.4, who is the brother-in-law of the deceased also reached the place of occurrence soon after and also witnessed the appellant and saw the deceased lying on the ground with blood oozing injury from her head. Inquest was held in his presence and he appended his signature. He was also a witness to the seizure of the dao, mobile phone and wearing apparels and his signatures were proved in course of trial. In the cross-examination, he stated that he did not find the appellant at the place of the occurrence and also did not see the weapon by which the deceased was killed but denied any allegation that he put his signature on the seizure memo without anything written on it.
12. Other witnesses, P.W.5, the doctor who performed the post-mortem report as well as P.W.6, Investigating Officer of the case and P.W.7, Sub-Divisional Judicial Magistrate, Sadar before whom the confessional statement of the appellant was recorded, were also examined.
13. The doctor who performed the post-mortem report, P.W.5 had stated in his deposition that at the time of post-mortem examination the following injuries were found on the body of the deceased: -
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(i) One incised wound measuring 9 X 1.5 cm. X muscle deep present 2 cm. Below the lower eyelid along with involvement of the nose in the left side of face. The margins of the wound are clean cut, regular and well defined and linear with presence of blood clots.
(ii) Two incised wounds measuring 7 X 1.5 cm. X 4 X 1.5 cm. X muscle deep present in the left side of neck, 3 cm. below the angle of mandible with presence of dried blood clot. The margin of the wound clean cut, regular, linear and well defined.
(iii) Two linear shaped bruise present over the lateral aspect of left shoulder measuring 4 X ½ cm. X 5 X ½ cm. respectively.
14. He opined the cause of death as due to haemorrhage and shock because of injuries sustained by the deceased and all the injuries were ante-mortem and homicidal in nature and caused by a sharp cutting weapon. The post-mortem report which has been exhibited as Ext.5 clearly mentions the aforesaid injuries mentioned by the P.W.5 and also the reason causing the death of the deceased. Testimony of P.W.5 fully corroborates the post-mortem findings conducted by him earlier.
15. P.W. 6 was the Investigating Officer of the case, who described the investigation.
16. P.W. 7 was the Sub Divisional Judicial Magistrate before whom the confessional statement was recorded. He deposed that when the appellant was brought before him, he explained the provisions of law relating to recording of confessional statement and sufficiently warned and cautioned the appellant that he was not bound to confess. It was also ascertained from the appellant that he was willing to make his confession voluntarily and he was not under any influence. The appellant was also given reflection period of 24 hours after which the confessional statement was recorded during which period the appellant was kept in the judicial custody in the Central Jail, Silchar. P.W.7. The learned SDJM having fully satisfied of the voluntariness of the appellant, recorded his statement in his Court Chamber. The confessional statement was exhibited as Ext.8 and duly proved.
17. It appears from the records that confessional statement, though was retracted in course of the trial by the appellant while making statement under Section 313 of the Cr.P.C., was the main basis on which the conviction was made by the trial court.
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18. Mr. Z. Hussain, learned Amicus appearing for the appellant has tried to convince this Court that the prosecution could not to be said to have proved the case beyond reasonable doubts. According to the learned counsel for the appellant, though it is admitted that the appellant and the deceased had two minor children who were living with them, they were never examined. According to the learned counsel for the appellant, had these two children who otherwise would be very natural witnesses been examined, perhaps the truth would have come out. The fact that these two children were not examined, certainly has cast a shadow of doubt on the prosecution story.
19. The learned counsel for the appellant has also emphasized the fact that there was no eye-witness of the incident. The complainant, P.W.1 who was the house owner and was staying near the place of occurrence was sleeping at the time of occurrence as stated by him before the court and he reached to the place of occurrence only after being informed by one of the tenants and he had also categorically stated that he did not see who had killed the deceased. It has been also stated that soon after the incident many neighbours gathered, but they were not examined.
20. He also submits that the weapon of crime, the dao, which was allegedly blood stained was never sent for forensic examination. Since the blood stain dao was not forensically examined, it could not be established with certainty that it was really the weapon of crime which was used to cause the fatal injuries on the deceased. It was also submitted that other witnesses, namely, P.W.2, P.W.3 and P.W.4 who had also arrived at the place of occurrence only after the incident and they were not eye-witnesses. However, the Investigating Officer of the case, P.W.6, had stated that there were sufficient materials to support the prosecution case. Apart from the above witnesses and reliance on post-mortem report, inquest report, confessional statement, there were no other evidences to support the Prosecution.
21. The learned counsel for the appellant further referred to the statement made by the appellant under Section 313 Cr.P.C. which clearly shows that on the date of the occurrence he was away from his residence for earning his livelihood by working as a mason and his wife also had gone to her parental house and that only after returning at about 9:00 p.m. he found his wife dead lying on the floor of the house with injury on her nose and at the time of Page No.# 7/23 occurrence the door was open. On seeing the dead body of his wife he raised a hue and cry, upon which the neighbours including his landlord came and advised him to inform the police. However, as he did not have the phone number of the police he requested the people present to inform the police. He, thus, denied any role in the death of his wife.
22. Learned Amicus Curiae for the appellant, accordingly, submits that under the circumstances, it would be clearly seen that the appellant was innocent and had been falsely implicated. It has been further submitted that he denied that he killed his wife and also denied having made any extra judicial confession before the P.W.1 and P.W.2 that he killed his wife.
23. The learned counsel for the appellant submits that even if the so called confessional statement under Section 164Cr.P.C. is referred to, it would indicate that there was certain family dispute between the appellant and the deceased, which was also mentioned by the P.W.1 in his FIR that the appellant and the deceased used to have fight over domestic matters.
24. Under such circumstances, it would clearly indicate that there was no real intention to kill his wife but if the death had occurred it would be without any motive but because of some family dispute. It has been further submitted that the appellant has two minor children and has to take care of their welfare and accordingly, the conviction may be converted under Section 304 IPC and sentence be reduced so that the appellant may be released earlier as he had already undergone for more than 5(five) years of custody.
25. The learned Additional Public Prosecutor, on the other hand, submits that there are sufficient materials and evidences to sustain the conviction under Section 302 IPC. According to the Ld. Addl. PP., the P.W.1 is the star witness who soon after the incident reached the place of occurrence and saw the appellant sitting near his deceased wife and also saw the crime of weapon which was seized by the police after they arrived at the place of occurrence. Further, the appellant had made an extra judicial confession to him that he killed his wife when the P.W.1 made an enquiry from the appellant as to what had happened. It has further been submitted that the extra judicial confession made by the appellant is reinforced by the Page No.# 8/23 deposition of the P.W.2 who also stated that he saw the appellant sitting near his wife and also heard the appellant talking over the phone that he had killed his wife. According to the learned Additional Public Prosecutor the extra judicial confession statement made by the appellant before the P.W. 1 and P.W. 2 and who were not interested witnesses, is fully corroborated by the confessional statement made by the appellant under Section 164 Cr.P.C., which did not suffer any irregularity in the manner.
26. That apart, the post-mortem report clearly corroborates injuries received by his wife. In other words, the injuries seen by the P.W.1 and P.W.2 on the body of the deceased stood fully corroborated by the medical report. Accordingly, it has been submitted that it is not the case where the prosecution has failed to discharge the burden of proving the case beyond the reasonable doubt.
27. As regards, the retracted confessional statement, the learned Public Prosecutor had placed reliance on the case of Ram Singh Vs. Central Bureau of Narcotics reported in (2011) 11 SCC 347,in which it has been held that if retraction was not made soon after the confessional statement but belatedly, such retraction can be ignored and confessional statement made under Section 164 can be relied upon for conviction.
28. Further placing reliance on the case of Nirmal Moran Vs. State of Assam reported in 2003 (2) GLT 266, decided by this Court, it has been submitted that retraction of confessional statement under Section 313 Cr.P.C. while making statement after lapse of one year can be ignored.
29. In the present case the confessional statement was retracted in course of the trial after about 9 months. Further, the confessional statement made by the accused was fully corroborated by the medical evidence and, as such, such retraction made after about nine months ought not to reduce the authenticity of the confessional statement under Section 164 Cr.P.C. It has further submitted that there is no evidence led on the part of the defence about use of any coercion and influence on the appellant before the confessional statement was recorded under Section 164 Cr.P.C.
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30. It has been also contended that the injuries were received by the deceased on her head and neck which are vital parts of the body which would clearly indicate that the appellant had the intention to cause death of his wife.
31. Learned Additional Public Prosecutor accordingly, submits that the ingredients of the offence punishable under Section 302 IPC are proved and hence, the appeal is liable to be dismissed.
32. The appellant has been convicted under Section 302 of the IPC for committing murder. The essential ingredients of the offence of murder punishable under Section 302 are as follows:
i) death of a human had occurred which was not suicidal or accidental in nature
ii) such death was caused by the accused or the accused was responsible;
iii) the accused did so,
a) with the intention of causing the death, or
b) that the accused knew that his act was likely to cause death, or
c) the injury inflicted upon or caused by the accused was sufficient in the
ordinary course to cause death.
33. In the present case, it is an indisputable fact that the wife of the appellant had died.
The death occurred because of the injuries suffered by her caused with certain sharp weapon as proved by the post-mortem examination.
34. The weapon of crime, i.e. one dao, which caused the injuries on the body of the deceased was found at the place of occurrence, which was found lying near the deceased person and was seized by the police.
35. The issue is, whether it was the appellant who caused the injury which led to the death of the deceased and whether he had the intention to cause the death of his wife by striking her with the dao.
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36. It is the case of the prosecution that it was the appellant who was present near the dead body who caused her death by striking her with the dao. It is the case of the appellant on the other hand, by way of retracting his earlier confessional statement, that he arrived at the scene of crime on his return to his rented house and found his wife already dead on the floor of the house with injury on her head as stated by him in his statement under Section 313 CrPC.
37. Thus, the onus is on the prosecution to prove that the appellant was very much at the scene of crime and he caused the death of his wife by using the said dao.
38. This Court has to examine these aspects in the light of the evidences referred to above and see whether the prosecution has been able to prove beyond reasonable doubt that it was the appellant who caused the injury leading to her death with the intention to cause her death so as to come within the purview of Section 302 IPC.
39. In this regard, it may be noted that though there is no ocular evidence of any witness that it was the appellant who hit his wife with the dao with the intention to kill her, the prosecution has relied on the various evidences including the confessional statement to prove that it was the appellant who murdered his wife.
40. Since, the prosecution has heavily relied on the confessional statement made by the appellant soon after the incident to prove the charge, we must focus our attention to the confessional statement made by the appellant.
41. The law is well settled as also observed in Shankeria Vs. State of Rajasthan, reported in (1987) 3 SCC 435 that a confession if voluntarily and truthfully made, is an efficacious proof of guilt, for confession is admission of guilt. However, it has been also held that before convicting an accused on the basis of such confessional statement recorded under Section 164 CrPC, the Court must apply the following twin tests,
(i) Whether the confession was perfectly voluntary? and
(ii) If so, whether it is true and trustworthy?
It was held that the court must be fully satisfied, therefore, that the confession was perfectly voluntary, which is sine qua non for its admissibility in evidence. If the court is of the Page No.# 11/23 view that the confession appeared to have been caused by any inducement or threat or promise as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected brevi manu.
If the court is not satisfied about the voluntariness of the statement, the court need not examine further as to whether it is true and trustworthy. Only when the court is satisfied that it was perfectly voluntary, the court is to examine the truthfulness and trustworthiness of the evidence. For arriving at such a conclusion, the court must compare the confession statement with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case.
Accordingly, the Hon'ble Supreme Court observed that if on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to satisfy the second test.
42. We, accordingly, proceed to examine and scrutinize the confessional statement of the appellant in the light of the aforesaid parameters.
43. We have already noticed that the learned Sub Divisional Judicial Magistrate (SDJM) who was examined as PW-7 in the trial, had asked the appellant in detail relating to his detention, when he was produced before him. The appellant stated that he was arrested at Panchghori Road at about 9:15 p.m. and was detained at Rangirkhari T.O.P. for about 16 hours from 01.03.2015 to 02.03.2015 before being brought to the Court.
44. Thereafter, the learned SDJM examined as to whether there was any mark of injury visible on the body of the appellant. On finding that there was no such mark of injury, the learned SDJM after putting questions to the appellants about his background, asked him whether during the time spent under the custody of the police, the police had threatened and applied force upon him, to which the appellant had replied in the negative. Thereafter, the learned SDJM explained to the appellant the gist of provision of Section 164 CrPC coupled with Section 281 CrPC and Sections 24 to 30 of the Indian Evidence Act in detail and enquired from him as to whether he was aware that he was not a police officer but a Magistrate, to which the appellant answered in the affirmative. The appellant was also asked whether any Page No.# 12/23 influence, promise, force or threat was made to him by the police or any other person for making the confession, to which the appellant had replied in the negative. The appellant was also made to understand that the statement which would be made by him may be used as evidence against him and after being satisfied with that, the appellant was asked whether he would like to make the confession and the appellant answered that he would like to state the truth out of repentance.
45. The appellant also informed that in the vicinity of the Court, where he was making the confessional statement, there was no police officer present and he was completely under the supervision of the Court. He was also asked whether the police promised or assured him that he will be made an approver to which the appellant had answered in the negative. He was also informed that he may be convicted on the basis of his confession but he was also assured that he will not be remanded/sent to the police even if he does not make the confession, which was duly acknowledged by the appellant.
46. Thereafter, after having explained, warned and cautioned the appellant as above, the Ld. SDJM, PW-7 put the appellant in judicial custody in the Central Jail, Silchar for reflection from 02.03.2015 to 03.03.2015. Thereafter, the appellant was brought before the Ld. SDJM on 03.03.2015 at about 4.30 p.m. at the Silchar Court Complex whereupon he was again explained about the particulars of Section 164 CrPC and after the Ld. SDJM was fully satisfied that the appellant was in a fit state of mind and was prepared to make the confessional statement voluntarily, the Ld. SDJM recorded his statement.
47. Under the circumstances, having gone through the records and the evidence of P.W. 7, we are satisfied that the confession was made by the appellant voluntarily.
48. Having satisfied with the first limb of the scrutiny, we proceed to examine whether such a confessional statement is true and trustworthy, the relevant portions of which are reproduced hereinbelow:
"Deceased Bappi Nath alias Mamoni Nath was my wife. I married her about 18 years ago. Thereafter we were blessed with two sons. We were happy till after the birth of the younger son. Now younger son is about five years old. My co-villager Dipan Nath used to visit my house before the birth of my younger son. My wife used to say that he was her brother. One night three months after my younger son's birth, after having dinner, I came to my room. At that time Dipan Nath was at my house. When he did not leave my house till late, I came out to see the matter Page No.# 13/23 and found Dipan enjoying sex with my wife on a bed in a different room. When I rebuked them, both of them left my house. She also took along my sons with her. Thereafter we came to a compromise in a 'bichar' that took place in the village. Then my wife came to my house. The Lakhu Panchayat gave the decision in this regard. Everything was going well after that. However, one day she gave me poisoned 'prasad' (food offered to a deity-Tr.) of Durga Puja. When I came to know about that, she served me liquor by mixing poison with that. At that time, my friend Mintu Nath was there at my home. When he cautioned me, I did not have that poisoned liquor. As soon as I opened the cap of the bottle, my wife had left the place. She again came back after about a week. Thereafter I came to Silchar. After I had stayed at my wife's younger sister's place for about 15 days. I left the place alone following a quarrel and started living at Das Colony. About six months after that, that means about 20 days ago, my wife phoned me and told me that my elder son was very ill and that he was admitted in the SMCH. Then I went to the SMCH and got him cured completely. Thereafter, I started living with her in her rented house at Panchghari. Then I found that too many phone calls came to her and I could understand that she had started working as a prostitute. I could learn that she had started prostitution and whenever a phone call came, she went to hotel and other places with her customers. Then I asked her to stop all those. I also asked her to change the SIM card. Then she told me that she might replace me but she would not change the SIM card. On 01-03-13, she went out of the house saying that she was going to bring money from the Nightingale Hospital and returned home around 9 pm. When she same home, I asked her whether she had received money or not and why she had not received my phone call. Then she told me that if I could not adjust with him, I should better leave. Just a moment ago, a man had dropped her there by a bike. When she did not listen to my words and when she asked to leave the place. I inflicted one cut blow in her head and two in the neck with a dao. She fell down immediately after that. Then hearing the outcry, the landlord came and as told by me, he informed the P.S. of the matter. I phoned my in-laws and informed them of the matter. Then police came and took me with them under arrest."
49. Before we examine the motive and intention in inflicting the injuries on the body, we will focus our examination as to whether he had really inflicted the injury on her head and neck with the dao as stated by the appellant in his confessional statement.
50. The appellant states in his confessional statement in the following words, "....I inflicted one cut blow in her head and two in the neck with a dao. She fell down immediately after that. Then hearing the outcry, the landlord came and as told by me, he informed the P.S. the matter......"
51. The fact that the statement made by the appellant that he inflicted one cut blow in her head and two in the neck with a dao stands fully corroborated by the post-mortem report.
The post-mortem of the deceased was conducted on 2 nd March, 2015 and the confessional statement was recorded on 3rd March, 2015. The appellant was not aware of the findings of the post-mortem when he made the confessional statement.
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52. In the post-mortem report, it was clearly mentioned that there is one incised wound measuring 9 x 1.5 cm x muscle deep present 2 cm below the lower eyelid along with involvement of the nose in the left side of face.
This injury corresponds to his statement that he inflicted one cut blow on her head.
53. As regards the two injuries in the neck, the same are also reflected in the post-mortem report wherein it has been mentioned that two incised wounds measuring 7 x 1.5 cm x muscle deep & 4 x 1.5 x muscle deep are present in the left side of neck (3 cm below the angle of mandible) with presence of dried blood clots and the margins of the wound are clean cut, regular & well defined.
54. The post-mortem report also clearly mentions the opinion of the Medical Officer to the effect that death was due to haemorrhagic shock as a result of the injuries sustained as described. All the injuries were ante mortem & homicidal in nature & caused by sharp cutting weapon.
55. The fact that the said injuries were caused by dao is also corroborated by the retrieval and seizure of the dao from the place of occurrence which was duly proved as Exihibit 2, seizure of which was witnessed by P.W.-1 & P.W.-4.
56. As to the issue whether the appellant came to the place of occurrence later and found his wife dead as claimed by the appellant under Section 313 CrPC statement, the same does not seem to have been corroborated by any evidence on record. On the contrary, both P.W.-1 and P.W.-2 saw the appellant sitting near his deceased wife, against which the appellant could still argue that both the P.W.-1 and P.W.-2 might have seen the appellant after he arrived at the scene after the crime was committed by someone else, since P.W.-1 and P.W.-2 were not eye-witnesses and for that matter, there was no eye- witness to the crime of murder. Yet, in our opinion, what clinches the issue is the extra judicial confession made by the appellant in presence of P.W.-1 & P.W.-2.
In his deposition before the Court, P.W.-1 stated as follows, "........At the time of occurrence when I was sleeping, one of my lady tenants informed me that the accused has killed his wife. Hearing this I instantly woke up from sleep and rushed to the room of the accused and found him there sitting besides the dead body of his deceased wife. When I asked what happened, he replied me that he has killed his wife. I saw cut injury on Page No.# 15/23 the forehead of the deceased and a blood stained dao on the bed......."
(emphasis supplied).
Similarly, PW-2 also deposed before the Court as follows, "........At the time of occurrence one lady informed me that one of the tenants of PW-1 has killed his wife. Hearing this I instantly rushed there and saw the accused sitting near his deceased wife. The door of the room was opened. I saw a cut injury on the neck of the deceased and accused was talking over his mobile phone that he has killed his wife......"
(emphasis supplied).
57. As regards extra judicial confession, it may be apposite to refer to the decision of the Hon'ble Supreme Court in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 wherein it was held as follows:
"18. Confessions may be divided into two classes i.e. judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were Page No.# 16/23 controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall [(1783) 1 Leach 263 :
168 ER 234] .) It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mentality of the accused."
58. From the above, what is clear is that just like confessional statement, the court must be satisfied that the extra-judicial confession was made voluntarily and it is true and trustworthy.
59. At the same time, it is also important to keep in mind that since extra-judicial confession amounts to admission of guilt, the probative value must be of high order and it essentially depends on the reliability of the witness who heard the confession. In this regard, we may refer to the decision of the Hon'ble Supreme Court in Sahoo v. State of U.P., (1965) 3 SCR 86 : AIR 1966 SC 40 : 1966 Cri LJ 68 in which it was held as follows:
5...................... If it was an extra-judicial confession, it would really partake the Page No.# 17/23 character of direct evidence rather than that of circumstantial evidence. It is argued that it is implicit in the concept of confession, whether it is extra-judicial or judicial, that it shall be communicated to another. It is said that one cannot confess to himself: he can only confess to another. This raises an interesting point, which fails to be decided on a consideration of the relevant provisions of the Evidence Act. Sections 24 to 30 of the Evidence Act deal with the admissibility of confessions by accused persons in criminal cases. But the expression "confession" is not defined. The Judicial Committee in Pakala Narayana v. R. [LR 66 IA 66] has defined the said expression thus:
"A confession is a statement made by an accused which must either admit in terms the offence or at any rate substantially all the facts which constitute the offence."
A scrutiny of the provisions of Sections 17 to 30 of the Evidence Act discloses, as one learned author puts it, that statement is a genus admission is the species and confession is the sub-species. Shortly stated, a confession is a statement made by an accused admitting his guilt. What does the expression "statement" mean? The dictionary meaning of the word "statement" is "the act of stating, reciting or presenting verbally or on paper". The term "statement" therefore, includes both oral and written statements. Is it also a necessary ingredient of the term that it shall be communicated to another? The dictionary meaning of the term does not warrant any such extension; nor the reason of the rule underlying the doctrine of admission or confession demands it. Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence, presumably on the ground that, as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be. The following illustration pertaining to a written confession brings out the said idea: A kills B; enters in his diary that he had killed him, puts it in his drawer and absconds. When he places his act on record, he does not communicate to another; indeed, he does not have any intention of communicating it to a third party. Even so, at the trial the said statement of the accused can certainly be proved as a confession made by him. If that be so in the case of a statement in writing, there cannot be any difference in principle in the case of an oral statement. Both must stand on the same footing. This aspect of the doctrine of confession received some treatment from well-known authors on evidence, like Taylor, Best and Phipson. In A Treatise on the Law of Evidence by Taylor, 11th Edn., Vol. I, the following statement appears at p. 596:
"What the accused has been overheard muttering to himself, or saying to his wife or to any other person in confidence, will be receivable in evidence."
In The Principles of the Law of Evidence by W.M. Best, 12th Edn., at p. 454, it is stated much to the same effect thus:
"Words addressed to others, and writing, are no doubt the most usual forms; but words uttered in soliloquy seem equally receivable."
Page No.# 18/23 We also find the following passage in 'Phipson on Evidence', 7th Edn., at p. 262:
"A statement which the prisoner had been overheard muttering to himself if otherwise than in his sleep, is admissible against him, if independently proved."
These passages establish that communication to another is not a necessary ingredient of the concept of "confession". In this context a decision of this Court in Bhogilal Chunilal Pandya v. State of Bombay [(1959) Supp 1 SCR 310] may usefully be referred to. There the question was whether a former statement made by a witness within the meaning of Section 157 of the Evidence Act should have been communicated to another before it could be used to corroborate the testimony of another witness. This Court, after considering the relevant provisions of the Evidence Act and the case-law on the subject came to the conclusion that the word "statement" used in Section 157 meant only "something that is stated" and the element of communication was not necessary before "something that is stated" became a statement under that section. If, as we have said, statement is the genus and confession is only a sub-species of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt.
60. The above extra-judicial confession was testified by P.W. 1 and P.W.2. The P.W.1 was the landlord who knew both the appellant and the deceased. He arrived at the place of occurrence soon and it was quite natural of him to enquire from the appellant who was found to be sitting near the dead body of the deceased as to what had happened. The appellant replied that he killed his wife. The P.W.1 also saw cut injury on the forehead of the deceased and blood stained dao on the bed. This injury was corroborated by the post mortem report and the said dao was seized by the police. There is no material on record to show that the P.W. 1 had any enmity with the appellant or his relation with appellant, his tenant was strained that the P.W. 1 would falsely implicate the appellant. We are satisfied with the credibility of P.W.1 as regards this extrajudicial confession made by the appellant to the P.W.1.
Coming to P.W.2, he was a resident in the neighbourhood and was an ex-member of the Meherpur Gaon Panchayat and was in his shop located on the opposite side of the place of occurrence and he also rushed there as soon he heard about the incident. He thus knew the appellant. He also saw the appellant sitting near the dead body and saw cut injury on the neck of the deceased and heard the appellant talking over his mobile phone that he killed his wife.
It is to be also noted that both P.W. 1 and P.W. 2 were witnesses to the seizure of dao Page No.# 19/23 and wearing apparels from the place of occurrence, which conclusively proves that both of them were present at the place of occurrence at an early point of time.
As mentioned under Section 24 of the Evidence Act, there is nothing to indicate that the appellant had made the aforesaid extra-judicial confession due to inducement, threat or promise from any person in authority with the purpose of gaining any advantage or to avoid any evil.
The circumstances in which the said extrajudicial confession was made, do not indicate any suspicious element to create any doubt of the genuineness of the same.
It is to be noted that during the cross-examination, nothing was asked to shake the credibility or veracity of the aforesaid statements made by P.W.-1 and P.W.-2 of the extra- judicial confession made by the appellant that the appellant had killed his wife.
61. We have also noted that if the statement of the appellant made before the Court under Section 313 Cr.P.C. was really true, there would have been some corroborative evidence on record, which we find to be totally missing. On the other hand, as discussed above, we have no reason to doubt the truthfulness of the statements made by the P.W.-1 and P.W.-2, who had no axe to grind with the appellant and they are quite natural witnesses who testified as to what actually they witnessed and what actually transpired before them when they came to the scene of occurrence.
62. However, there is an issue which requires to be examined by this Court, which is that the aforesaid confessional statement made by the appellant was later retracted by the appellant when he was examined by the court.
63. It now settled that that a confessional statement can be used against the accused notwithstanding its retraction by the accused in his statement under Section 313, where confession is truthful, voluntary and recorded according to the provisions of law and was not retracted at the earliest opportunity.
64. As noted above, it was held in Shankaria (supra) that once the court is satisfied with the twin test about the voluntariness and trustworthiness of the same, it could be relied upon for conviction. In the aforesaid case of Shankaria (supra), after the confessional statement of the accused was recorded, he retracted his confession during his examination under Page No.# 20/23 Section 313 Cr.P.C. during the trial, which was about a year later, after it was made. The Supreme Court held that since the confessional statement was not retracted at the earliest opportunity, it reinforces the conclusion that the confession was made voluntarily and accordingly, held that retraction of his confessional statement could be ignored and the confessional statement could be relied upon.
65. We have already examined the judicial confessional statement made by the appellant, which clearly indicates that he killed his wife after being totally disillusioned with the alleged immoral behaviour of his wife and after he was humiliated by her. The confessional statement does not prima-facie show that there is anything improbable and unbelievable of the acts by the appellant.
66. Further, when the appellant retracted from his confessional statement, the appellant merely stated that he had not killed his wife. But he had made extrajudicial confession to have killed his wife before P.W.-1 and P.W.-2. Further, in his statement made before the Court under Section 313 CrPC, the appellant never stated that the confessional statement was made before the PW-7 under coercion or threat of anybody or that he never made any such confessional statement before the P.W.7.
67. Thus, we are of the opinion that the reliance on the confessional statement by the learned trial Court for convicting the appellant cannot be said to be improper.
68. The appellant also has raised another issue contending that though two minor children of the appellant and the deceased were living with them, they were not examined as witnesses. In our opinion, non-examination of the two children does not cast any doubt on the credibility of the evidence of other witnesses. It is not the number of witnesses but the quality of evidence, which is material in the trial. It was so held Chittar Lal v. State of Rajasthan, reported in (2003) 6 SCC 397 that, "7. ............... It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. This position has been settled by a series of decisions. The first decision which has become locus classicus is Mohd. Sugal Esa Mamasan Rer Alalah v. R. [AIR 1946 PC 3 : 1946 All LJ 100] The Privy Council focused on the difference between English law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of the Evidence Act. The view has been echoed in Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] , Guli Chand v. State of Rajasthan [(1974) 3 SCC 698 : 1974 SCC (Cri) 222 : AIR 1974 SC 276] , Vahula Page No.# 21/23 Bhushan v. State of T.N. [1989 Supp (1) SCC 232 : 1989 SCC (Cri) 353 : AIR 1989 SC 236] , Jagdish Prasad v. State of M.P. [1995 SCC (Cri) 160 : AIR 1994 SC 1251] and Kartik Malhar v. State of Bihar [(1996) 1 SCC 614 : 1996 SCC (Cri) 188] .
69. We do not have any reason to doubt the credibility of the prime witnesses, P.W.-1 and P.W.-2, who arrived at the scene of crime soon after the incident and as such in our view non examination of the two children of the appellant and the deceased does not cast any doubt on the prosecution case.
70. The appellant also has contended that the weapon of crime, the dao, which was seized from the place of occurrence, which was blood stained was never sent for forensic examination, which cast a shadow of doubt on the prosecution case as to whether it was really the weapon of crime involved in the death of the appellant's wife. As regards this, law is also well settled that at best it can be considered to be a deficiency in investigation which does not necessarily vitiate the investigation.
71. In Amar Singh Vs. Balwinder Singh & Ors., 2003 (2) SCC 518 , the Investigating Agency did not send the fire arm and the empty cartridges to the forensic science laboratory for comparison and it was argued on behalf of the defence that the omission was a major blow in the prosecution case, sufficient to discredit the prosecution version, which however, was repelled by the Hon'ble Supreme Court by holding that where there is certain defect in the investigation, the court has to be more circumspect in evaluating the evidence and it would be no right to completely throw out the prosecution case on account of such defect, for doing so, would amount to play in the influence of investigating officer who may have kept the investigation designedly defective.
72. The said decision was relied upon by the Hon'ble Supreme Court in the subsequent case of Sheo Shankar Singh Vs. State of Jharkhand and Anr., reported in (2011) 3 SCC 654, wherein the Hon'ble Supreme Court referred to two other decisions in Ram Bihari Yadav Vs. State of Bihar & Ors., 1998 (4) SCC 517 and Surendra Paswan vs. State of Jharkhand, (2003) 12 SCC 360.
73. In Surendra Paswan (supra), the Investigating Officer did not send the blood samples collected from the spot for chemical examination, which was held to be merely a deficiency in investigation but would not corrode the evidentiary value of witnesses.
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74. In the present case, the fact that the injuries which led to the death of the deceased wife of the appellant was caused by sharp weapon finds corroboration from the recovery of the dao from the place of occurrence. The post mortem report also mentions of the injuries being caused by sharp cutting weapon. The appellant himself had in his confessional statement mentioned about the use of dao to strike at the head and neck of his wife. Thus, we are of the view that merely because the aforesaid dao was not sent for forensic examination, it would at best be considered a deficiency in investigation but would not vitiate the prosecution case. It is not that the dao was recovered from some other place but was recovered near the dead body and as such, we have no reason to doubt that the seized dao was the weapon which was used to cause injury on the body of the deceased.
75. Learned counsel for the appellant has, however, submitted that if the prosecution as relied on the confessional statement to convict the appellant under Section 302 of IPC, the confessional statement clearly indicates that he did not have any intention or motive to cause the death of his wife. The appellant did not cause the death of his wife with the intention to murder and there was no motive in as much as the appellant hit his wife out of anger because of the immoral behaviour of his wife.
76. According to the learned Amicus, perusal of the confessional statement would indicate that the appellant was angry with the alleged immoral behaviour of his wife and it was not a calculated murder.
77. Accordingly, since there was no intention or motive in causing death of his wife, it was at best a case of culpable homicide not amounting to murder and punishable under Section 304 of IPC.
78. If the act by which the death is caused is done with an intention of causing death or such bodily injury as is likely to cause death, it could be covered by Section 302 of IPC. On the other hand, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death, it may be covered by Section 304 of IPC.
79. In the present case, the fact that the fatal injuries were caused not in any other parts of the body but on the head and neck, which are vital parts, injuries to which could be fatal, would clearly indicate that the said blows made on these fatal parts of the body for causing Page No.# 23/23 death of his wife. There is no evidence to show that the appellant hit his wife with the dao on spur of the moment blinded by anger. It was not a case of grave and sudden provocation.
80. Thus, we are not inclined to convert the conviction under Section 304 of IPC as pleaded by the appellant.
81. For the reasons discussed above, we do not find any merit in the appeal and accordingly, the same is dismissed. LCR be remitted to the concerned court.
JUDGE JUDGE Comparing Assistant