Back
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KALYAN RAI SURANA, KARDAK ETE, JJ.
Charua Kachua @ Sushil Kujur S/o. Lt. Budhu Ram Kachua @ Kujur – Appellant
Versus
The State Of Assam – Respondent
Crl.A(J) 1 of 2020
Decided on : 25-08-2023
Indian Penal Code,1860 - Section 302 - Criminal Procedure Code,1973 - Section 374(2) and 383 - Evidence Act, 1872 - Section 106 – Offence of Murder – Appeal Against Conviction - Whether said seized article was the weapon of assault and whether it contained any strain of human blood - It is well settled that conviction can be based on a voluntary confession, but rule of prudence requires that wherever possible it should be corroborated by independent evidence. Para 39
Finding of Court : First point of determination (a) is answered in negative and against appellant by holding that under facts and circumstances of case, it can be accepted that appellant had retracted his confession - No case has been made out by appellant for discarding confessional statement of the appellant (Ext.8) - Second point of determination (b) is answered in negative and against appellant that appellant could not establish that deceased had given a grave and sudden provocation to appellant, which provoked the appellant to assault her - Third point of determination no (c) is answered in negative and against appellant by holding that the failure of prosecution to prove motive of appellant to kill his wife in this case would not be fatal to prosecution and appellant would not be entitled to be acquitted because crime took place in confines of their matrimonial home and under section 106 of the Evidence Act, 1872, it was his burden to prove what had happened in confines of their matrimonial home.
Result : Appeal Dismissed
JUDGMENT :
K.R.Surana, J.
Heard Mr. B.J. Talukdar, learned Senior counsel and amicus curiae in this appeal, assisted by Ms. U. Augusty, learned counsel for the appellant. Also heard Mr. D. Das, learned Addl. P.P. for the State.
2. The appellant, who is in jail has filed this appeal under section 374(2) Cr.P.C. read with section 383 Cr.P.C. against the judgment and order of sentence dated 19.07.2019, passed by the learned Sessions Judge, Udalguri in Sessions Case No. 43/2017, thereby convicting the appellant under section 302 IPC and sentencing him to undergo imprisonment for life.
Case of the prosecution:
3. One Manoj Kumar Mishra had lodged an FIR on 08.12.2015 with the O/C, Dimakuchi P.S., informing that during the night hours on 06.12.2015, Dipali Kachua (Kujur), who used to work in his tea garden had passed away. It was informed that he came to know in the morning of 07.12.2015 that her husband Charua Kachua @ Sushil Kujur had killed her under the influence of liquor and thereafter he fled, taking his eight year old daughter along with him. It was informed that he got her post mortem (PM for short) done and made arrangements for her cremation. Accordingly, the Dimakuchi P.S. Case No 63/2015 dated 08.12.2015 under section 302 IPC was registered. In the course of investigation, on finding sufficient evidence against the appellant, charge-sheet dated 31.05.2016, was submitted against the appellant.
Committal and commencement of trial:
4. The learned Chief Judicial Magistrate, Udalguri accepted the charge-sheet, took cognizance of the offence and the proceeding was then transferred to SDJM, Udalguri. The learned SDJM, Udalguri found the case exclusively triable by the Sessions Court. Accordingly, vide order dated 12.06.2017, the case was transferred to the Session Court for trial.
Trial:
5. In the course of trial, the prosecution had examined 9 (nine) witnesses, their names being Dr. Chandan Kumar Saha (PW-1); Manoj Kumar Mishra (PW-2); Dhananjoy Mishra (PW-3); Tuntun Rajbjar (PW-4); Tinku Barman (PW-5); Somin @ Sukuru Karmakar (PW-6); Jatin Karua (PW-7); Ajoy Mantry (PW-8); Dr. N.C. Bhuyan (PW-9). The following documents were exhibited by the prosecution, viz., Post-mortem (PM for short) report (Ext.1); Ejahar (Ext.2); Seizure List (Ext.3); Sketch map (Ext.4); Charge-sheet (Ext.5); Order dated 09.12.2015 (Ext.6); Order dated 11.12.2015 (Ext.7); Statement of accused under section 164 Cr.P.C. (Ext.8).
6. The appellant was thereafter examined under section 313 Cr.P.C., who had taken the plea of denial and also denied that he had made the confessional statement voluntarily. However, in defence, no witness was examined.
7. PW-1 was the Doctor who performed the post mortem examination on the dead body of the deceased. In his PM report (Ext-1) he had recorded the following injuries found on the dead body:-
b. Fracture of (i) occipital bone, (ii) right temporal bone, and (iii) right mandible.
c. Skull bone exposed.
Accordingly, the PW-1 had opined that the death had occurred due to head injury caused by blunt object. The time since death was 18-10 hours before the examination. The defence did not cross-examine the PW-1.
8. The PW-2, who was the first informant, had exhibited the FIR (Ext.2), and his signature therein. He had stated that the incident took place on 06.12.2015 and he was informed of the incident on the next date. He rushed to the place of occurrence and saw the victim lying in a pool of blood with injury on her head and he also found that the appellant was missing from the house. Thereafter, he had lodged the FIR. He had stated that the police had seized the bamboo stick in the house of the accused in his presence and prepared the seizure list, which was exhibited by him as Ext.3. In his cross-examination, the PW-2 had stated that his house was situated at a distance of 500 meters from the place of occurrence.
9. The PW-3 had stated in his examination-in-chief and that he resides near the
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.
A confessional statement made voluntarily and corroborated by other evidence can be relied upon for conviction even if it is retracted during the trial.
Point of Law : Provision of Section 313 Cr.P.C. are to bring substance of accusation to accused so that he can explain every circumstance appearing against him during course of evidence and it is man....
Act of appellant would fall under exception 4 to Section 300 of Indian Penal Code as appellant did not intend to kill his wife, however, knowledge that his act of assault by lathi may likely to cause....
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.
Provisions of Section 164 Cr.P.C must be complied with not only in form, but in essence.
A conviction based on circumstantial evidence requires substantial corroboration, particularly with confessions, where voluntariness and trustworthiness must be proven to avoid wrongful convictions.
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 main legal point established in the judgment is that a confessional statement, even if voluntary, must indicate intention or motive to establish a conviction under Section 302 IPC. The court also....
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....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
