Aftab H. Saikia, J.
1. The appointed Amicus Curiae Ms. S. Sarma is not present when this Cri. Appeal has been taken up for hearing.
2. In view of the above, Ms. S. Choudhury has been appointed as Amicus Curiae to represent the appellant in jail.
3. Heard Miss. S. Choudhury learned Amicus Curiae. Also heard Mr. B. B. Gogoi learned Public Prosecutor Assam.
4. On 31 -32005 an FIR was lodged with Geleki PS by PW 1, Shri Sheemanta Gogoi alleging that his elder brother Dhaneshwar Gogoi disappeared on 27-3-2005 from Geleki Brahmin Gaon LP School premises, where he went to attend a 'Bhaona'. However on 31-3-2005 at about 9 a.m. his dead body was found lying in a ditch some 300 meter away in the backside of the School. It was suspected that someone had killed his elder brother.
5. On the strength of the FIR above mentioned, Police registered a case and accordingly investigation ensued. During the investigation. PW 11, the investigation officer (I/O) found enough convincing materials against the appellant and on recording statements of various witnesses chargesheet was filed under Section 302,1. P.C. against him.
6. The learned Committal Magistrate transferred the matter to the learned Sessions Judge, Sibsagar for trial as the case was being exclusively triable by the Court of Sessions.
7. The learned Additional Sessions Judge (First Track Court), Sibsagar to whom this Sessions case was committed, having closely perused materials available before him including the police report and upon hearing the learned Counsel for the parties framed charge against the appellant under above mentioned section and when the same was read over to the appellant, he denied the charge and claimed to be tried.
8. During the trial, prosecution examined as many as 11 witnesses including the witnesses namely PW 4, the doctor who conducted autopsy on the dead body of the deceased Dhaneshwar Gogoi and PW 11, investigating Officer (I/O). The accused was also examined under Section 313, Cr. P.C.
9. The learned Judge on appreciation of material and evidence on record and also upon hearing the learned Counsel for the parties, found that the prosecution could successfully prove the case against the appellant and accordingly by his impugned judgment and order dated 21-11-2006 passed in Session Case No. 36(S-S) 2006 convicted the appellant under Section 302, I.P.C. and resultantly sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- in default .further rigorous imprisonment for 3 (three) months. He also found the accused guilty of the offence under Section 201, I.P.C. and accordingly the appellant was sentenced to undergo rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 500/-, in default rigorous imprisonment for 1 (one) month. It was ordered that both the sentences would run concurrently.
10. The appellant has challenged the conviction and sentence above mentioned in this Criminal Appeal preferring from the Jail.
11. In support of the appeal and also assailing the impugned conviction and sentence, Miss. Choudhury, learned Amicus Curiae has forcefully argued that the entire evidence projected by the prosecution cannot be accepted for conviction of the appellant under Section 302, I.P.C. as the same depicts contradiction, inconsistency and incredibility in its totality. Her contention is that the so called extra judicial confession relied on by the learned Judge cannot be sustainable in law because the same has not been overwhelmingly corroborated by the evidence of other witnesses. Particularly relying on the evidence of PW 6 Shri Babul Borthakur, she has contended that this witness in his chief was very much categorical in stating that when the Police interrogated the appellant in their presence, the appellant told that on the night of the 'Bhaona' one Puneshwar Chetia, the deceased Dhaneshwar Gogoi and he drank liquor and during the drinking session, 3 (three) of them quarreled among themselves. At that moment Puneshwar Chetia and the appellant pushed the deceased by the neck and Puneshwar hit Dhaneswhar with a brick and thereafter the deceased Dhaneshwar was dragged and dumped into a pond. The testimony of this witness was reinforced by himself in his cross. Under such circumstances the learned Amicus Curiae has submitted that the appellant was in no way involved in the criminal act of killing the deceased. She has also categorically mentioned about the medical evidence adduce by the PW 9, the Doctor, who in his deposition stated that he did not find any external injury on the body of the deceased except a ruptured spleen. Taking into account this evidence it is submitted on behalf of the appellant that the prosecution miserably failed to make out a case against the appellant attracting his conviction under Section 302, I.P.C. so as to impose the sentence of life imprisonment as indicated above.
12. On the other hand, Mr. Gogoi, learned Public Prosecutor, defending the impugned conviction and sentence, has vehemently contended that the extra judicial confession so made by PW 2 Jagot Gogoi, PW 3 Sri Binod Saikia and PW 4 Pradip Gogoi cannot be brushed aside straightway as being weak piece of evidence. He has contended that the extra judicial confession so made before those witnesses by the appellant was absolutely voluntarily where the appellant clearly stated that one of their family of 5(five) was killed and concealed. The learned Public Prosecutor also relying on the medical evidence stated that PW 9 has clearly stated that the death was due to rupture of spleen which was caused by hitting' of a brick like material as Mat. Ext. 1 and since the Mat Ext. 1 was seized, that was suffice to hold that the appellant by using a brick like material caused rupture in the spleen which resulted in his death. In the above premises, it is contended on behalf of the State that the impugned conviction and sentence need no interference of this Court in this appeal.
13. We have given our anxious consideration to the contentions raised and submitted by the learned Counsel for the parties including the learned Amicus Curiae. Also meticulously scanned the entire evidence of the prosecution witnesses including the Doctor. (PW 9) and the I/O (PW 11).
14. From the evidence of PW 6. it is apparent that it was Puneswar who hit Dhaneswar with a brick and later on, the dead body of the deceased was dragged and dumped into a pond.
15. On the other hand the extra judicial confession upon which the prosecution has put much reliance did not get any support for its corroboration from any other witnesses. Interestingly, medical evidence also maintained complete silence as regards any external injury on the dead body of the deceased save and except a ruptured spleen. The doctor evidence as under:
External appearance :
Condition of the subject - Semi decomposed dead body.
Rigor mortis weakly present.
No external injury.
Cranium and Spinal canal - Healthy.
Thorax - Pleura, larynx, trachea, both the lungs empty.
Abdomen - Peritoneum is congested in upper part.
Cavity contains blood clot.
Mouth and pharynx are congested.
Blood stain tooth present.
Stomach is congested, empty.
Liver and kidney - congested.
Spleen - ruptured. Sign of bleeding present.
The above findings are antemortem in nature.
Injuries are caused by blunt weapon.
16. The doctor in his opinion stated that the death was due to shock and hemorrhage as a result of the injury sustained by the deceased and the shock and hemorrhage was due to rupture of spleen which according to him could be caused by brick like material Ext. 1.
17. Modi's Medical Jurisprudence and Toxicology explained 'the rupture of spleen' as under:
On account of its situation, rupture of a normal spleen is very rare unless caused by considerable crushing and grinding force, such as the passing of a carriage or motor car over the body, or by a crush in a railway accident, or by a fall from a very great height; in such cases it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may sometimes be ruptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. A spleen subjected to traction may be torn from its pedicle.
18. Now let us consider and make proper evaluation of the testimony of the PW 2 viz. Jagot Gogoi, PW 3 Binod Saikia and PW 4 Pradip Gogoi before whom, according to prosecution, the appellant made extra judicial confession as regards the killing of the deceased Dhaneswar Gogoi.
19. PW 2 Jagot Gogoi, in his examination in chief deposed that while around 2/3 p.m., a couple of days after the dead body was recovered, his paternal uncle's son Pradip Gogoi, PW 4, his friend Binod Saikia PW 3 and he were sitting on a bamboo platform near the bridge close to their house, the accused/appellant arrived there and said that one of the five was killed and concealed. At that time Hiteswar. the appellant, was drunk and he was carrying a 'Khukuri'. Coming home they told their family members what Hiteswar said to them. This witness further adduced that the Police was informed. Accordingly the Police came and interrogated them. The Police produced him along with Pradip and Binod in the Court for recording statements and accordingly they gave their statements. Ext.-3 was his statement made before the Magistrate.
In cross this witness stated that the accused was in the habit of causing nuisance under the influence of liquor and was also in the habit of threatening others. However, when not drunk, he behaved nicely. As regards timing, according to this witness, the accused told them about the aforesaid things a couple of days after the recovery of the dead body. He testified that except Pradip, Binod and himself no one heard what Hiteswar said.
Be it contend herein that the dead body of the deceased was found on 31-3-2005 as indicated in the FIR itself lodged on 31-3-2005. So it is seen, as per the version of PW 2 that the accused appellant told him in presence of PW 3 and PW 4 about such alleged killing a couple of days after 31-3-2005.
20. The other Prosecution witness PW 3 Binod Saikia in his chief also claimed that he along with PW 2 and PW 4 were sitting on a bamboo platform on the side of the road near the bridge of a river Namdang one day about a month after the dead body was recovered. Hiteswar/appellant came there and said that one of them five was done away with and one of them should now be done away with. At that time Hiteswar was carrying a 'Khukuri' and after saying those words he went away. According to this witness, two days thereafter he went to the police station and narrated the incident. Pradip Gogoi PW 4 and Jagot Gogoi PW 2 also went there with him. The Police interrogated them and produced them in the Court where he gave his statement-Ext. 4.
In cross PW 3 testified categorically that it was around 1 p.m. when Hiteswar told them the same and that was in the month of March. He also told in his cross that the accused did not have any quarrel with any member of the family of the deceased and he was in the habit of raising commotion occasionally under the influence of liquor. He also stated that about a week after the accused spoke to them in that manner they were produced before the Magistrate for making their statements.
21. If the evidence of this witness, (PW 3) is accepted, it would clearly show that there was apparent contradictions in his deposition as according to him in chief, the accused told them about the killing one day about a month after the dead body was recovered when in cross, it is seen that, the witness specifically with assertion deposed that it was around 1 p.m. and that was in the month of March. It is on the record that the dead body itself was recovered on 31-3-2005 and in that case, making of the extra judicial confession, as narrated by PW 3 in his cross, in the month of March is not believable and this witness is, therefore, not reliable.
22. On the other hand, PW 4 Pradip Gogoi narrating his version adduced that one day after the last rites of the deceased was over, PW 2 Jagot Gogoi, Binod Saikia PW 3 and he after the midday meal were talking something among themselves sitting on a raised platform near the bridge in their village. About that time Hiteswar came there with a 'Khukuri' in the hand and brandishing the same said that, out of the five brothers of their father, he had killed and concealed one of them and shouting at them said that, it was time to kill and conceal one of them. According to this witness on the next day of such saying PW 2, PW 3 and he went to the Police narrating what Hiteswar said. All of them were produced before the Court by the Police after recording the statements before the Magistrate. In the Court he gave his statement Ext.-5.
In cross this witness deposed that the accused had never threatened others under the influence of liquor and he did not cut anyone else either before or after the instant incident. He was categorical in stating that they made their statements before the Magistrate after the 'sraddha' ceremony of the deceased was over.
23. Coming to the statements of PW 2, PW 3 and PW 4 recorded under Section 164, Cr. P.C. on 21-5-2005 by the concerned Magistrate it is seen that according to PW 2 around 3 p.m. last Monday (16-5-2005) he along with Pradip Gogoi and Binod Saikia while sitting on a make shift bamboo platform beside the road in front of their house Hiteswar Chetia/appellant came there and told them that one of the five brothers of their father was killed. It was now time to kill another and saying that he went away. PW 3 at the same breath also specifically stated that around 3 p.m. on 16-5-2005 Pradip, Jagot and he was sitting on the roadside when Hiteswar came and told the same as already mentioned above. PW 4 also told in his statement recorded under 164 Cr. P.C. that on 16-5-2005 Jagot, Binod and he sitting on a make shift bamboo platform were mutually discussing something and at that time Hiteswar came there with a Khukuri in the hand and brandishing the same said that out of the five brothers of their father he killed and concealed one of them.
24. A conjoint reading of the deposition of PW 2, PW 3 and PW 4 with their respective statements recorded under Section 164, Cr. P.C. as noticed above, would explicitly go to exhibit that there were full contradictions and inconsistencies basically as regards the timing of making such extra judicial confession to them by the appellant. When in his deposition, PW2 mentioned the timing of making such extra judicial confession around 2/3 p.m. a couple of days after the dead body was recovered (31-3-2005) in presence of PW 3 and 4, PW 3 on the other hand in his deposition told that it was one day about, a month after the dead body was recovered when the appellant one day after the last rites of the deceased was over they were told by the appellant about such incident of killing. However all these three witnesses in chorus in making their statements before the Magistrate recorded under Section 164, Cr. P.C. told specifically and categorically that it was around 3 p.m. last Monday i.e., on 16-5-2005 the appellant told them about the killing of the deceased. If the statements recorded under Section 164, Cr. P.C. are to be considered, the date of making of such alleged extra judicial confession to those witnesses by the appellant would be 16-5-2005 when their deposition as a Prosecutions Witnesses depicts different time of making such extra judicial confession.
25. That being the factual situation as emerged from the evidence of the witnesses this Court is of the view that the testimony of the witnesses PW 2, PW 3 and PW 4 relating to speaking of the alleged confession to them by the appellant and the statements recorded by the Magistrate under Section 164, Cr. P.C. do not inspire confidence for acceptance of the same. It is established that extra judicial confession was admissible if it inspires confidence and is made voluntarily. Even we do not find that all those witnesses namely PW 2, PW 3 and PW 4 were even subjected to any such lengthy cross examination. The extra judicial confession may or may not be a weak evidence and the same depends on the facts and circumstances of each case. In the case in hand we do not find any overwhelming reason to accept such extra judicial confession as truthful. Accordingly in our considered opinion, the same has to be discarded.
26. Having considered the medical evidence as well as evidence of other witnesses including PW 6 as already noticed in paragraph 4 of this judgment, we are of the considered view that the prosecution has failed to prove the case against the appellant so as to rope in the appellant under Section 302, I.P.C. beyond reasonable doubt. Accordingly, the impugned conviction and sentence stand set aside and quashed.
27. The appellant be set on liberty immediately if he is not otherwise required or wanted in any other criminal case.
28. LCR be sent down forthwith.
29. Before parting with the judgment, we put on record our appreciation to Ms. Choudhury, learned Amicus Curiae for her valuable support in deciding this appeal as indicated above. Accordingly, it is ordered that she is entitled to get her professional fee. which is quantified as Rs. 3,000/-.