JUDGMENT Srivastava, J.
1. This is an appeal against the judgment dt. 28-4-1983 passed by the Additional Sessions Judge, Sibsagar, whereby the appellant was convicted under Section 302 I.P.C. and sentenced to imprisonment for life,
2. The prosecution case was that on 24-8-80 at about 5.30 p.m. accused Phatik Chandra Gogoi had caused the death of Dina Sangmai of his village, by inflicting injuries with a dao. The accused had been taken to the Police Station by the informant Hiteswar Gogoi who had lodged the Ejahar at 8 p.m., the same day. S. I. Badaruddin Ahmed investigated the offence, visited the house of the accused who produced a dao. The accused made a confessional statement before the Judicial Magistrate Sri K. Ahmed on 26-8-80. After completion of the investigation, charge-sheet was submitted.
3. At the trial, the appellant had pleaded not guilty to the charge. The prosecution had examined P.W. 1 Dr. N. Ahmed who had performed autopsy on the body of deceased Dina Nath Shangmai on 25-8-80. P.W. 2 Rajni Kumar Barua. P. W. 3 Devi Nath Gogoi were declared hostile. The confessional statement recorded by Sri K. Ahmed, Judicial Magistrate was produced as Ext-6. It was formally proved by P.W. 6, Badaruddin Ahmed, Investigating Officer. P. Ws. 4 and 5 were formal witnesses. Accused Phatik Gogoi in examination under Section 313 Cr. P.C. retracted the confession. On consideration of the evidence, the learned Additional Sessions Judge found the charge established, convicted and sentenced the accused as stated earlier. Aggrieved, the accused preferred the appeal. Shri Amitav Roy, Advocate was appointed to present the appeal.
4. We have heard Sri Amitav Roy, learned Counsel for the appellant and Smt. U. Barua, learned Additional Public Prosecutor for the State.
The deceased had died on 24-8-80. There were two injuries- 1) incised wound 5" x 2" x muscle deep on the right of the neck cutting in trachea and larynx laterally. 2) one incised wound 3" x 2" x muscle deep cutting the clavicle at its achromion end. P.W. 1 Dr. N. Ahemad did not say if the injury No. 1 or the injuries were sufficient in the ordinary course of nature to result in death. He also said that injuries were caused by slant-blows from the side as indicated by lateral injuries.
The question is whether the accused had caused the injuries and if so what was the offence committed.
There is no eye-witness of the actual commission of the offence. P.W. 2 Rajani Kumar Baruah and P.W. 3 Debi Nath Gogol having been declared hostile, there is no evidence of the alleged extra judicial confession. Hiteshwar Gogoi who lodged the ejahar was not examined. The dao was also not produced possibly because no blood-stains had been found on it at the time of recovery from the appellants house.
The prosecution relies on the retracted confession of the appellant to sustain the charge. Smt. U. Barua, learned Additional Public Prosecutor has submitted that the confession was not retracted at the earliest opportunity i.e. when the charge was framed, nor even when the Investigating Officer was examined that the confession finds sufficient corroboration in regard to the number and nature of injuries from the medical evidence of P. W. 1 Dr. N. Ahmed and also in regard to surrender to police, in the statement of the Investigating Officer, P. W. 6 and therefore the confession being voluntary and reliable, should be acted upon to sustain the conviction. Smt. Barua has cited State of U. P. v. Boota Singh and Bharat v. State of U.P. , wherein, it was held, that general corroboration of important incidents was required and that if substantial corroboration was available retracted confession could be acted upon and form the basis of conviction.
Nand Kumar v. State of Rajasthan 1963(2) Cri LJ 702 (SC) was also cited where it was. held that "Courts ordinarily consider it unsafe to convict any accused person on the basis of the retracted confession except where the truth of such confession is established by corroboration".
Balbir Singh v. State of Punjab was also referred, where it was held, that "though a retracted confession, if believed to be true and voluntarily made, may form the basis of a conviction, the rule of practice and prudence, requires that it should be corroborated by independent evidence". It was further held, that, "rule of prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the person in the crime must be separately and independently corroborated." And further that 'if the rule required each and every circumstance mentioned in the confessional statement must be separately and independently corroborated, then the rule would be meaningless, inasmuch as the independent evidence itself would afford sufficient basis for conviction and it would be unnecessary to call the confession in aid".
Shankaria v. State of Rajasthan AIR 1978 SC 1248 : 1978 Cri LJ 1251 was also cited, where it was held that a confession retracted at the late stage during examination under Section 313 Cr. P.C. is a circumstance which reinforces the conclusion that the confession was voluntary.
Sri A. Roy, learned Counsel for the appellants has argued that even though under Section 80 of the Evidence Act the confession recorded by a Magistrate is presumed to have been duly recorded and the Magistrate need not be produced the non-examination of the Magistrate in this case deprived the appellant of opportunity to cross-examine, to bring out the circumstances relating to the recording of the confession; which according to Sri Roy was not true and should not be acted upon. Sri Roy has also argued that the informant was not produced, that the prosecution did not produce the dao, and the prosecution version of chase through the village path of a few hundred yards and assault by the appellant in the afternoon, and not having been seen by any one was improbable. Sri Roy has cited Sarnam Singh v. State of Punjab where it was held that it must be established that a confession is voluntary and also that it is true. For the purpose of establishing that, it is necessary to examine the confession and compare it with the rest of the prosecutions evidence and the probability of the case. Shankaria v. State of Rajasthan AIR 1978 SC 1248 : 1978 Cri LJ 1251 was also relied upon for the observation, that the Court must apply double test to find out (1) whether the confession was perfectly voluntary and (2) if so whether it was true and trustworthy. He also referred to Dagdu v. State of Maharashtra 1977 SCC (Cri) 421 : 1977 Cri LJ 1206; Kuthu Goala v. State of Assam 1981 Cri LJ 424 (Gauh); Kora Ghasi v. State of Orissa ; D. P. Tewari v. State of U.P. ; Pyarelal v. State of Rajasthan and Emperor v. T. Malo AIR 1943 Cal 625 : (1944) 45 Cri LJ 155.
5. A consideration of the authorities cited, makes it clear, that a retracted confession requires to be examined and considered carefully to see if it was voluntary, and if it was true. If so when corroborated in important particulars, broadly in hormony with the prosecution case, it can be acted upon and can be the basis for conviction. The retracted confession Exhibit 6 may now be considered.
6. The confession (Ext. 6) is as follows:
I know Shri Dina Nath Sangmai. His house is at Sengmai village. On the day of occurrence, at about 4 O'clock in the evening the said Dina Nath Sangami came to my house and asked for money. I did not owe him any money. When I asked him as to which money he wants, he gave me two slaps on my cheek. He had assaulted me previously also. He was a little drunk. I entered into my house and took a Machi Dao. Dina Nath ran away. I chased him. Later he confronted me. I dealt a blow on his neck. He fell down. As he fell down, I inflicted another blow. Thereafter, I surrendered at the Police Station accompanied by Rajani Barua of Moaran Gaon and V. D, P. Secretary Debi Nath. I left the dao at the court-yard of my house. Later police seized the same.
7. The retraction was made in examination under Section 313 Cr. P.C. and even though Sri K. Ahmad, Magistrate was not examined there is no good reason to think that the confession was not voluntary. The occurrence took place on 24-8-80 at about 4,30/5 p.m., the applicant was taken into custody soon afterwards and produced before the Judicial Magistrate at 10 a.m. on 25-6-80. He was sent to jail for reflection. The appellant was produced again before the Magistrate on 26-8-80 and the Magistrate duly recorded his confession at 3 p.m. There is no inherent improbability in the confessional version, as argued by the learned Counsel for the appellant, that 50 years old appellant would not inflict the injuries on the 40 years old deceased after a chase, by dao, at 4.30 p.m. and be not seen. We do not find any sufficient reason to think that the confession could not be or was not voluntary. It may also be noted that it is not a case where the police could not work out the offence for sometime and in order to fasten responsibility somehow, on someone, had made him to confess. The Investigating Officer has stated that the appellant had been brought to the Police Station when the F.I.R. was lodged. Even though the informent was not produced, there is no reason to disbelieve the I.O. because the appellant was taken into custody soon afterwards the same day. The learned Counsel for the appellant has submitted that the accused did not surrender and was taken in custody from his house. Having considered the evidence of the Investigating Officer and the facts and circumstances of the case, we are inclined to believe that the accused had surrendered at the time the FIR (Ext-1) was lodged.
P. W. 2 Rajani Kumar Barua and P. W. 3 Dabi Nath Gogol did not support the prosecution case, but their evidence shows that the deceased was somewhat of a 'bully' and the appellant was considered to be a good person, had lost his wives, had 9 children and his family condition was bad, and the witnesses perhaps had sympathy for him, hence the absence of other evidence for prosecution, should not make the confessional version unreliable.
8. In our opinion, the confession was voluntary and was also true. It is corroborated in material particulars in regard to the number and nature of injuries inflicted on the deceased, by the medical evidence of P.W. 1 Dr. N. Ahmad and also in regard to the surrender of the appellant in the evidence of the I.O.
We, therefore, find that the appellant had inflicted the injuries as a result of which Dina Sengmai had died.
The next question which requires consideration is that whether the offence committed by the appellant was murder. We have already noticed that P. W. 1 Dr. Ahmed did not say whether the injuries on the deceased were sufficient in the ordinary course of nature to result in death. The inquest report Ext. 4 shows that there was one injury on the neck and the other on the right arm. The injury on the neck, no doubt on a vital part, however was by a slanting blow being a lateral injury.
The facts and circumstances brought out in the confession particularly, that the deceased had come to the appellant and asked for money and on latter's refusal had given two slaps to him whereupon the latter had got into the house and brought out a 'dao' and as the deceased ran away, the appellant chased him, and the aforesaid injuries were inflicted, resulting in the death of the deceased, do show that the appellant had been provoked by the humiliation or insult. given by the deceased, and the sequence of events thereafter clearly show that the injuries were inflicted under the aforesaid provocation and there was no premeditation. Even though in the act committed Exception 3 and Exception 4 of Section 300 I.P.C. may strictly not be attracted, we are unable to persuade ourselves to attribute the requisite higher degree of intention to the appellant i.e. that he intended to cause the death or that he intended to cause such bodily injuries as were sufficient in the ordinary course of nature to cause death, and all that we can safely conclude is that he intended to cause injuries likely to cause death. We are accordingly of the view that the appellant had not committed the offence of murder but that the offence committed by him was culpable homicide, punishable under Section 304, Part I, I.P.C.
As stated by P. W. 1 Rajni Barua the appellant has nine children, has lost his wives and his family condition also has not been satisfactory. Considering the above and the circumstances in which he had committed the offence we think that a lenient view, in so far as the quantum of punishment is concerned may be justified. In Pooran Singh v. State of U.P. ) punishment of 18 1/2 months was considered adequate for offends under Section 304, Part I, I.P.C. The accused in that case was in youth. In Prabhu Prasad Sah v. State of Bihar imprisonment for about two years under Section 304 Part I, I.P.C. also in consideration of the youth of the offender, had been considered sufficient. The appellant during trial was in custody for some time and has been in jail since his conviction on 28-4-83. In the circumstances of the case, we think that the sentence already undergone should be considered sufficient to meet the ends of justice in this case.
In the result, the appeal is partly allowed.
The conviction and sentence under Section 302, I.P.C. are set aside and the appellant is convicted for offence punishable under Section 304, Part I, I.P.C. and sentenced to imprisonment already undergone. He shall be set at liberty forthwith.
9. I agree.