Court Of Assam,Nagaland,Meghalaya,Manipur,Tripura,Mizoram and Arunachal Pradesh

CASE NO CRL.A(J) 62 OF 2005

District : Nagaon

1.KANAILAL GOWALA

Petitioner

Versus

1.THE STATE OF ASSAM

Respondent

!1.MR. S K MEDHI

2. AMICUS CURIE

Petitioner's Advocate

^1. PP, ASSAM

Respondent's Advocate

Coram:

BEFORE

HON'BLE THE CHIEF JUSTICE MR MADAN B.LOKUR HON'BLE MR JUSTICE MUTUM B.K. SINGH

DATE OF ORDER:14/02/2011

MADAN B. LOKUR, CJ

The appellant is aggrieved by his conviction and .sentence by an order dated 13-6-2005 passed by the Ad hoc .Addl. District & Sessions Judge, Nagaon in Sessions Case .No.276 (N) /02.

.2..The appeal throws up some rather disturbing facts .which we will soon advert to.

.3..The investigation in the case began with a First .Information Report (FIR) lodged by Thanuram Mahali, .Manager of Burrapahar Tea Estate on 25-6-2001. As per the .FIR, he informed the In-charge of Duwar Bagori Police Out .Post that he had received information from the workers of .the Tea Estate that the appellant had murdered his wife .Indira Guwalla while she was working in the garden at .about 12 noon.

.4..As a result of the investigation into the alleged .crime, a charge sheet was filed and the Ad hoc Addl. .District and Sessions Judge accused the appellant of .having murdered his wife Indira Guwalla on 25-6-2001 at .about 12 noon and thereby having committed an offence .punishable under Section 302 of the IPC. On 23-9-2003 the .accused pleaded not guilty and asked to be tried in .accordance with law.

.5..PW-1 Thanuram Mahali entered the witness box and .stated that he had lodged the FIR on the basis of .information received from Naren Khaktary that the .appellant had dealt dao blows on his wife while she was .working in the garden as a result of which she died over .there.

.6..PW-2 Naren Khaktary entered the witness box and stated .that he heard some hulla to the effect that dao blows .were given (kateli, kateli). He then noticed the .appellant proceeding towards his house with a dao in his .hand. He did not go near the place where Indira Guwalla .was lying in an injured condition but immediately went to .inform PW-1 Thanuram Mahali. PW-2 Naren Khaktary did not .witness the killing of India Guwalla but only heard a .hulla and saw the appellant with a dao in his hand.

.7..PW-3 Jiten Baraik turned hostile and denied having .said anything to the police during the course of .investigations.

.8..PW-4 Pradeep Guwalla was also not an eye witness but .had heard that someone had cut somebody else and people .said that the appellant had cut his wife.

.9..PW-5 Dilip Barua was also not an eye witness but he .carried the dead body of Indira Guwalla in a tractor to .the Police Out Post.

.10..PW-6 Matlib Ali is the Investigating Officer. He .substantially confirmed the statements made by the other .witnesses. There are three important aspects of the .testimony of this witness.

.11..The first important aspect of the testimony of this .witness is that he stated that he seized the dao of the .appellant on 6-7-2001 when it was produced before him by .the appellant. In this connection, it is important to .note that this witness admitted that even though the .incident took place on 25-6-2001, the dao was handed over .to him by the appellant on 6-7-2001, after a gap of .almost two weeks. It appears that no effort was made by .the Investigating Officer or anybody else to seize the .dao or apprehend the appellant during this period even .though he was named as the person who had killed Indira .Guwalla. This witness also admitted that a dao (of the .kind seized) could be purchased in the market by anybody.

.12..The second important aspect is that this witness .states that a memo was prepared when the dao was seized. .However, we find from a perusal thereof (Ext-2) that none .of the witnesses in whose presence the dao was alleged to .have been seized or surrendered, was examined in the .witness box.

.13..Thirdly, this witness states that the appellant had .given a confessional statement under Section 164 of the .CrPC. However, the Sub Divisional Judicial Magistrate .(SDJM), who is alleged to have recorded the confessional .statement, did not enter the witness box and did not .prove the confessional statement.

.14..On these broad facts, the learned Trial Judge .convicted the accused and sentenced him to imprisonment .for life. The three factors taken into consideration by .the learned Trial Judge in convicting the accused are:-

.i).The seizure of the dao or its surrender by the accused

.ii).The confession by the accused before the SDJM and

.iii).The statement of the appellant under Section 313 of .the CrPC that he committed the alleged crime.

.15..We are not satisfied with any of the three reasons .taken into consideration by the learned Trial Judge and .are of the view that the appellant ought to be acquitted.

.16..As regards the seizure of the dao, we find that not .only was there a considerable delay of almost two weeks .in its seizure but we are also surprised that it was .seized only when the appellant gave it to the police .authorities. What this means is that the Investigating .Officer took no proactive steps to seize the dao, but .waited for it to be handed over to him! To say the least, .this is rather odd. What is more disturbing is that none .of the witnesses to the so called seizure entered the .witness box to testify that the dao was seized in their .presence. We also find that the dao itself was not .produced in Court. In his re-examination, the .Investigating Officer stated that he had filed the weapon .of offence in Court and exhibit it. We do not find any .such material on record. It is, therefore not possible to .accept the statement of the witness that the dao was .seized on 6-7-2001 as per Ext-2. We have no option but to .hold that the seizure memo cannot be relied upon since it .has not been proved by independent witnesses; the dao, .alleged to be the weapon of offence in this case, was .either not even seized by the Investigating Officer or if .it was seized, it not in accordance with law.

17..The so called confessional statement made by the .appellant has not been proved by anybody. The principal .actor, the SDJM who recorded the so called confessional .statement, did not enter the witness box to prove it. .Therefore, we cannot accept the contents of the so called .confession..

.18..Moreover, we find from a perusal of the so called .confessional statement that it has been recorded in a .most casual and perfunctory manner. The appellant was .taken into police custody on 6-7-2001 and was produced .before the SDJM on 7-7-2001 at about 11 a.m. the .prescribed format for recording confessions under Section .164 of the CrPC provides that the accused be asked .details as to the length of time during which and the .places where he has been under the control of the police .. This has been left blank except to the extent that it .is recorded that the appellant was taken to the police .station on 6-7-2001. In State of Punjab v. Harjagdev .Singh, (2009) 16 SCC 91 the Supreme Court observed in .paragraph 16 of the Report:

It is hardly necessary to emphasise that the act of .recording confessions under Section 164 of the Code is a .very solemn act and in discharging his duties in the said .section, the Magistrate is required to take care to see .that the requirements of Section 164 of the Code are .fully satisfied.

.We are sorry to note that the SDJM failed to appreciate .the solemnity of the occasion and instead recorded the .confession of the appellant in a routine and mechanical .manner.

.19..Given the fact that the appellant was produced from .police custody, the SDJM ought to have given him some .time to reflect and think over the matter. In Sarwan .Singh Rattan Singh v. State of Punjab, 1957 SCR 953 the .Supreme Court held:

There can be no doubt that, when an accused person is .produced before the Magistrate by the investigating .officer, it is of utmost importance that the mind of the .accused person should be completely freed from any .possible influence of the police and the effective way of .securing such freedom from fear to the accused person is .to send him to jail custody and give him adequate time to .consider whether he should make a confession at all. It .would naturally be difficult to lay down any hard and .fast rule as to the time which should be allowed to an .accused person in any given case. However, speaking .generally, it would, we think, be reasonable to insist .upon giving an accused person at least 24 hours to decide .whether or not he should make a confession. Where there .may be reason to suspect that the accused has been .persuaded or coerced to make a confession, even longer .period may have to be given to him before his statement .is recorded.(Emphasis given)

.In this case, the appellant was produced before the SDJM .from police custody at about 11.00 a.m. It is not clear .when his confession was recorded but he was sent back .into custody at about 3.30 p.m. At best, the appellant .was given hardly five hours or so to reflect over the .matter after having been produced from police custody. We .are of the clear opinion that the time given to the .appellant was insufficient, more particularly on the .facts of this case.

.20..A few years ago, the Supreme Court said in Babubhai .Udesinh Parmar v. State of Gujarat, (2006) 12 SCC 268 in .paragraph 15 and 16 of the Report:

15. Section 164 [of the CrPC] provides for safeguards .for an accused. The provisions contained therein are .required to be strictly complied with. But, it does not .envisage compliance with the statutory provisions in a .routine or mechanical manner.

.16. The court must give sufficient time to an accused to .ponder over as to whether he would make confession or not

.21..In view of the facts and law mentioned above, we are .unable to place any reliance on the so called .confessional statement stated to have been made by the .appellant. At this stage, we must put in a word of .caution for the Magistrates: they must be more than .careful while recoding the confession of an accused. It .is better to err on the side of caution, rather than to .have an unjustified conviction.

.22..Insofar as the third factor taken into consideration .by the learned Trial Judge is concerned, namely, the .admissions made by the appellant in his statement .recorded under Section 313 of the CrPC, we may note that .the statements made by him cannot, by themselves, be .sufficient proof of the appellant having committed the .crime. In Bishnu Prasad Sinha v. State of Assam, (2007) .11 SCC 467 the Supreme Court, while relying upon Mohan .Singh v. Prem Singh (2002) 10 SCC 236, State of U.P. v. .Lakhmi (1998) 4 SCC 336 and Rattan Singh v. State of H.P. .(1997) 4 SCC 161 held in paragraph 34 of the Report:

34. It is well settled that statements under Section 313 .of the Code of Criminal Procedure, cannot form the sole .basis of conviction; but the effect thereof may be .considered in the light of other evidence brought on .record.

.The burden of proving the guilt of the appellant is .squarely on the prosecution. It is the duty of the .prosecution to prove the guilt beyond a reasonable doubt .rather than to depend only on the statements recorded .under Section 313 of the CrPC.

.21..The purpose of giving an opportunity to an accused to .put forth his case under Section 313 of the CrPC is to .apprise him of the evidence against him and to enable him .to place his version, if any, on record. It is not a .substitute for the prosecution or a substitute for .prosecution evidence.

.22..In Paramjeet Singh v. State of Uttarakhand, (2010) 10 .SCC 439 the Supreme Court explained the purpose of .Section 313 of the CrPC in paragraph 22 of the Report. .Reliance was placed on Sharad Birdhichand Sarad v. State .of Maharashtra, (1984) 4 SCC 116 and State of Maharashtra .v. Sukhdev Singh (1992) 3 SCC 700 and it was held:

Section 313 CrPC is based on the fundamental principle .of fairness. The attention of the accused must .specifically be brought to inculpatory pieces of evidence .to give him an opportunity to offer an explanation if he .chooses to do so. Therefore, the court is under a legal .obligation to put the incriminating circumstances before .the accused and solicit his response. This provision is .mandatory in nature and casts an imperative duty on the .court and confers a corresponding right on the accused to .have an opportunity to offer an explanation for such .incriminatory material appearing against him. .Circumstances which were not put to the accused in his .examination under Section 313 CrPC cannot be used against .him and have to be excluded from consideration. .

.Therefore, howsoever inculpatory his statements under .Section 313 of the CrPC, the learned Trial Judge should .have examined the merits of the evidence.

.23..On merits, we find that there was no eye witness to .the alleged killing of Indira Guwalla. Even PW-2 Naren .Khaktary says that he heard a hulla about some killing .and he noticed that the appellant was proceeding towards .his house with a dao in his hand. It is true that he says .that Indira Guwalla was lying nearby in an injured .condition but it does appear to us that on the basis of .the overall evidence on record, it would be a little .unsafe to uphold the conviction of the appellant only on .the basis of the testimony of PW-2 Naren Khaktary. Since .he was not an eye witness to the crime, there should be .some material to corroborate his testimony. The material .available, such as the seizure of the dao, the confession .and the statements made under Section 313 of the CrPC .cannot be relied on to convict the appellant. We also .cannot overlook the statement of the Investigating .Officer that a dao is available in the market and any one .can purchase it.

.24..While there is little doubt that the events suggest .that the appellant may be guilty. Yet suspicion, however .strong, cannot form the basis of a conviction in the .absence of proof. If the investigations had been handled .more efficiently and effectively, we have no doubt that .the truth would have come out.

.25.For the reasons above mentioned, we are not satisfied .that there is clinching evidence which proves beyond a .reasonable doubt that the appellant killed his wife .Indira Guwalla. The appeal is allowed and the conviction .and sentence is set aside.