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IN THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANDEEP MEHTA, SUSMITA PHUKAN KHAUND, JJ.
Raju Kumar Deka @ Raju Kumar Bora, S/o. Late Lalitdeka – Petitioner
Versus
State of Assam, rep. by PP. Assam and Anr. – Respondents
Crl. A. No.51 Of 2018
Decided On : 16-08-2023
Indian Penal Code, 1860 – Section 302, 201, 34 - Code of Criminal Procedure, 1973 - Section 313, (1)(b), 164 - Indian Evidence Act, 1872 - Section 106 - Murder offence – Appeal against conviction - Appeal is preferred seeking defeasance of judgment and order passed by learned Sessions Judge in connection with Sessions Case arising out of Diphu P.S. Case – There is no instance that Magistrate had recorded reason why appellant was willing to make a confessional statement. Para 28.
Finding of the Court: Discrepancy thwarts credibility of confessional statement - No certificate or endorsement was given by Magistrate if confession recorded by him was explained to appellant to enable appellant to understand what was recorded by Magistrate - Appellant gave his statement in Assamese which was recorded by Magistrate in English - There is no instance that Magistrate had recorded the reason why appellant was willing to make a confessional statement - Recapitulating entire evidence it is held that circumstances arising against accused does not form a complete chain - There is no evidence of any disclosure statement relating to recovery of body or any weapon of offence - Judgment and order of conviction impugned by appellant is not sustainable - Judgment and order convicting appellant u/s 302/201 IPC is hereby set aside.
Result: Appeal is allowed.
JUDGMENT :
(S.P. Khaund, J.)
1. This appeal is preferred seeking defeasance of the judgment and order dated 22.09.2017 and 25.09.2017 passed by the learned Sessions Judge, Karbi Anglong in connection with Sessions Case No. 27/1994 corresponding to G.R. Case No. 555/1993 arising out of Diphu P.S. Case No. 204/1993 u/s 302/201/34 of the Indian Penal Code (IPC for short). The appellant was convicted u/s 302 IPC and sentenced to Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/-with default stipulation and u/s 201 IPC and sentenced to undergo Imprisonment for 1 year. The sentences are to run concurrently.
2. The FIR unfolds that upon investigation of the place of occurrence (PO in short) and examination of witnesses and in connection with G.D. Entry No. 20 dated 02.08.1993 made at Borlangfar PP., Sri N.C. Kakoti (hereinafter referred as the informant) learnt that on 02.08.1993 at about 1 AM midnight, Smt. Tukheswari Bora, with the help of Sri Raju Kumar Borah (hereinafter referred as the appellant) hacked Harikanta Borah (hereinafter referred to as the deceased) to death with a ‘dao’ in his own government quarter No. 41(C). The face of the deceased was then covered with his ‘lungi’ and the naked body of the deceased was put inside two sacks. The dead body was kept under water in a ‘nola’(drain) in the nearby low lying paddy field which was in the Southern side of the railway line about 400 yards away from the PO. The body was tucked under leaves and twigs. In order to conceal evidence, the wife of the deceased Smt. Tukheswari Bora wiped-off the blood stains from the crime scene and washed off her garments. When they were examined in presence of witnesses, both the appellant and Smt. Tukheswari Bora admitted of having committed murder. The appellant led to the recovery of the dead body concealed by him. On the basis of the confessions, the weapon of offence i.e. the dao was also recovered from underneath a wooden stool in the house. Both the appellant and Smt. Tukheswari Bora had an illicit relationship.
3. This FIR was registered as Diphu P.S. Case No. 204/1993 u/s 302/301/34 IPC.
4. Investigation commenced and on completion of investigation charge-sheet was laid against the accused, named in the FIR u/s 302/301/34 IPC. After commencement of trial, a formal charge u/s 302/301/34 IPC was framed and read over and explained to the appellant and Smt. Tukheswari Bora. Both the accused adjured their guilt and claimed innocence.
5. To substantiate its stance the prosecution examined 9 witnesses and the defence cross-examined the witnesses to refute the charges. On the incriminating materials arising against them, several questions were asked to the accused as per provisions of Section 313(1)(b) of the Code of Criminal Procedure (Cr.PC for short) and their responses were recorded. The accused did not tender any evidence in defence. It is pertinent to mention at this juncture that the accused Smt. Tukheswari Bora @ Tosheswari Bora absconded at the time the arguments were to be placed before the trial Court.
6. The trial Court decided this case on the following points:-
2. Whether the accused person Sri Raju Kumar Borah in furtherance of common intention on 02.08.1993 at about 1 am after committing a murder caused certain evidence connected with alleged offence disappeared with intention to screen them?”
Although the IO in this case was not examined, both the accused were convicted u/s 302 IPC as the informant conducted a major part of the investigation. It was held by the trial Court that the informant, PW-1 prepared the seizure-list, recovered the body of the deceased and also conducted inquest over the body. During trial the informant passed away. It was held that the informant prepared the seizure-lists, Exts-1 and 2 which reveal seizure of two gunny bags, one lungi a
Confessional statement recorded without informing to accused as to why he desires to confess and he would not be remanded to police Lock-up even if, he does not confess guilt, cannot be relied on.
The confession made by the accused, along with corroborating evidence, can establish guilt beyond reasonable doubt, especially when denial during examination lacks credibility.
The court upheld the conviction under Section 304 Part-II IPC, emphasizing that the absence of premeditation and the nature of the incident fell within Exception 4 of Section 300 IPC.
Point of Law : Even sub-clause (4) of Section 164 Cr.P.C. clearly indicates that such confession must be recorded in the manner provided under Section 281 Cr.P.C.
It is well settled that in case based on circumstantial evidence, circumstances from which an inference of guilt sought to be drawn must be cogently and firmly established, and that those circumstanc....
Provisions of Section 164 Cr.P.C must be complied with not only in form, but in essence.
The confession recorded without statutory compliance is inadmissible, undermining the prosecution's circumstantial evidence in a murder appeal, reinforcing the principle of presumption of innocence.
A confessional statement made voluntarily and corroborated by other evidence can be relied upon for conviction even if it is retracted during the trial.
A conviction based on circumstantial evidence requires substantial corroboration, particularly with confessions, where voluntariness and trustworthiness must be proven to avoid wrongful convictions.
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