Sanjoy Kerketa vs The State Of Assam
2021 Latest Caselaw 1305 Gua

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GAHC010117232019




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRL.A(J)/46/2019

            SANJOY KERKETA
            UDALGURI



            VERSUS


            THE STATE OF ASSAM
            REP. BY PP, ASSAM.



Advocate for the Petitioner    : MR. NURUL HASAN, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT AND ORDER (Oral) Date : 05-04-2021

(Suman Shyam, J)

Heard Mr. Mr. N. Hasan, learned Amicus Curiae appearing for the appellant.

Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for Page No.# 2/13

the State. None has appeared for the informant/ respondent No.2.

2. This appeal from Jail has been preferred by the sole appellant assailing the

judgment and order dated 09.01.2019 passed by the Court of learned Additional

Sessions Judge, Udalguri in connection with Sessions Case No.20/2018 convicting the

appellant under Section 302 IPC and sentencing him to undergo rigorous

imprisonment for life and also to pay a fine of Rs.10,000/-, in default, to undergo

simple imprisonment for six months. The appellant/accused has also been sentenced

to undergo rigorous imprisonment for 3 (three) years and to pay a fine of Rs.5000/-, in

default, to suffer simple imprisonment for 3 (three) months for the offence committed

under Section 201 of the IPC. Both the sentences were to run concurrently.

3. The prosecution case, as unfolded by the materials available on record, is to

the following effect. On 08.10.2017, the public of the locality got foul smell emanating

from the house of the accused and when asked, the accused had confessed to

have assaulted his wife, Fultuli Baraik, to death with a "lathi" and dumped the dead

body in the septic tank of the latrine of his house.

4. On 09.10.2017, Sri Chanda Kujur (PW-1), a resident of the Mazbat Tea Estate,

lodged an ejahar with the Officer-in-Charge, Mazbat Police Station, Udalguri,

reporting that on 06.10.2017, at around 2.00 a.m., the accused had killed his wife by

hitting her on the head with a bamboo "lathi" and dumped the dead body in the

toilet tank in his quarter in the Tea Estate. On 08.10.2017, foul smell emanated from

the house of the accused and since the neighbouring people did not see the wife of

the accused for several days, a strong suspicion had arisen. Hence, a request was Page No.# 3/13

made to the police carry out investigation in the matter.

5. Upon receipt of the ejahar dated 09.10.2017, Mazbat Police Station Case

No.58/2017 was registered under Sections 302/201 of the I.P.C. and the matter was

taken up for usual investigation. Upon completion of investigation, the I.O. had laid

charge-sheet against the accused. Based on the charge-sheet submitted by the I.O.

charge under Sections 302/201 IPC was framed against the accused which was read

over and explained to him. But the accused had pleaded innocence and claimed to

be tried. As such, the matter went up for trial.

6. The prosecution case is based on circumstantial evidence and the extra-

judicial confession made by the accused before the Line Chowkidars and the

Assistant Manager of the Tea Estate. In order to establish the charge brought against

the accused, the prosecution side had examined 12 witnesses.

7. PW-1, Sri Chanda Kujur, is the informant in this case and he has deposed

before the Court that he knew the accused as well as his deceased wife. In the

morning of 08.10./2.17, he could learn about the foul smell emanating from near the

house of the accused and on being asked, the accused had confessed before the

public that he had assaulted his wife Fultuli Boraik to death with a bamboo lathi, at

night and dumped the deadbody in the toilet tank. According to the PW-1, the

accused had said that he had committed the offence at around 2.00 a.m. on

06.10.2017 and had shown the bamboo lathi to the public. The Manager of the Tea

Estate had informed the police. Then the police came there. The accused had

confessed his guilt before the police and showed the toilet tank in which the dead Page No.# 4/13

body was kept. Police recovered the dead body by engaging sweepers and sent it

to the hospital. PW-1 had also confirmed that he had lodged the F.I.R. (Ext-1) and Ext-

1(1) was his signature. During his cross-examination, PW-1 has stated that he was

present when the accused had confessed his guilt.

8. PW-2, Ganesh Tuli, did not support the prosecution case as a result of which,

he was declared as a hostile witness. During his cross-examination by the prosecution,

PW-2 had denied of having adduced false evidence since the accused hails from his

Tea Estate.

9. PW-3, Kedar Nag, was working as one of the Line Chowkidars in the Tea Estate

where the incident took place. He is an important witness in this case. As per the

prosecution version, he is one of the witnesses before whom the extra-judicial

confession was made by the accused. In his deposition PW-3 has stated that at the

New Line of Mazbat Tea Estate foul smell coming from the house of the accused was

detected. He then asked the accused about the smell and also where his wife was,

whereupon, the accused had replied that while quarrelling with his wife, he had killed

her and dumped the dead body in the toilet tank of his house. PW-3 then took the

accused to D. N. Indoria (PW-9), the Assistant Manager of the Tea Estate who took

the accused to the Higher Manager. The Manager had called the police. Police

came and took the accused to the Police Station. Later on, the police visited the

house of the accused and the dead body of the wife of the accused was recovered

from the septic tank of the house of the accused. During his cross-examination, this

witness had stated that the accused was a heavy drinker and he used to remain in Page No.# 5/13

inebriated state for consuming liquor daily.

10. PW-5, Anand Munda, is a seizure witness, in whose presence, the police had

seized a bamboo lathi from the house of the accused. This witness had also stated

that the surroundings of the house of the accused had a foul smell and the police

had recovered the dead body of the wife of the accused from the septic tank.

11. PW-5, Magan Horo, was working as a Line Chowkidar in the Mazbat Tea Estate.

He has also deposed in similar lines as the PW-3, by stating that on the day of the

incident, the public of that locality had smelt bad odour in the house of the accused

and the surroundings. Around that time, the wife of the accused was not seen by the

public for several days. The villagers had raised hulla. At that time, the accused, who

was discharging duty in the factory of the Tea Garden, was taken to the Assistant

Manager of the Garden by himself and the PW-3. According to the PW-5, the

accused had confessed of having killed his wife by assaulting her with a lathi and

kept the dead body in the septic tank of the house. Such confession was made in

presence of himself, the PW-3 and the Assistant Manager (PW-9). During his cross-

examination, this witness has also stated that the accused used to drink liquor every

day.

12. PW-6, Mahabir Baiga, has deposed that there was bad odour coming from the

house of the accused and later on, public found the dead body of the wife of the

accused in the septic tank of the latrine of his house.

13. PW-7, Rana Kujuir, has deposed that on the date of the occurrence, when he

went to the Mazbat Police Station, he saw the accused inside the lockup. He came Page No.# 6/13

to know from the PW-1 in the Police Station that the accused had murdered his wife.

14. PW-8, Sandip Tyagi, was the Manager of Mazbat Tea Estate and in his

deposition, this witness has stated that on the day of the incident when he was

working in the office of the Tea Estate, in the evening at about 5.00 p.m., the Line

Chowkidars (PWs-3 and 5) had informed him that a foul smell was there near the

house of the accused. At first, they informed the PW-9 about the incident and

thereafter, he informed the Officer-in-Charge of Mazbat Police Station. This witness

has deposed that the accused had confessed his guilt before the Assistant Manager

(PW-9) which was told to him by the PW-9. In his cross-examination, the PW-8 has

stated that the accused did not confess his guilt before him.

15. PW-9, Sri Dhara Nanda Indoria, was working as the Assistant Manager of

Mazbat Tea Estate and he is one of the three witnesses before whom, the accused

had confessed to have killed his wife. PW-9 has categorically deposed that on the

day of the incident, while he was working in the office of the Tea Estate, in the

evening, at around 5.00 P.M., the Line Chowkidars (PW-3) Kedar and (PW-5) Magan

informed him that the wife of the accused was not seen by the people for several

days. Then he called the accused and asked about his wife, when he told that he

had murdered his wife and kept the dead body in the septic tank of the latrine of his

house. When he asked the accused as to why he had killed his wife, the accused did

not show any signs of repentance and was laughing. Thereafter, on being instructed

by him, the PWs-3 and 5 informed the matter to the Manager Sandip Tyagi (PW-8)

who, thereafter, informed the Officer-in-charge of Mazbat Police Station. Thereafter, Page No.# 7/13

the police came and apprehended the accused. During his cross-examination, PW-9

has stated that save and except the Line Chowkidars, no other employee was

present when the accused came and met him on being called.

17. PW-10, Sri Drithiman Das, was the Circle Officer, Mazbat Revenue Circle, who

had conducted inquest on the dead body and submitted inquest report. According

to the Inquest Report, the body was found in a pit behind the home and was totally

decomposed. PW-10 has proved the inquest report Ext-2.

17. PW-11, S.I. Billeswar Kalita, is the Investigating Officer (I.O.) in this case who

had conducted investigation and submitted charge-sheet. PW-11 has deposed that

on 08.10.2017, while he was working as the 2 nd Officer at Mazbat Police Station,

Sandip Tyagi, Manager of Mazbat Tea Estate, informed the Officer-in-Charge of

Mazbat Police Station about the suspected presence of a decomposed dead body

in the New Line of Mazbat Tea Estate. On receipt of such information G.D. Entry

No.130 dated 08.10.2017 was made and the Officer-in-Charge of Mazbat P.S.

proceeded to the place of occurrence being accompanied by him. PW-11 has

stated that on reaching Mazbat Tea he found the accused and interrogated him.

During interrogation the accused had confessed that on 06.10.2017 he had killed his

wife by assaulting her with a lathi and kept the lathi in his house. The accused also

told the PW-11 that after killing his wife he had kept the dead body in the septic tank

of the "Kachha latrine" of their house. The accused had also shown him the lathi with

which he had assaulted his wife. The lathi was seized by him on being shown by the

accused. PW-11 then went near the septic tank and found the dead body, which Page No.# 8/13

was recovered after discussing the matter with the Circle Officer. According to PW-

11, the local people of that area were present at the time of recovery of the dead

body. The PW-11 has also confirmed that the ejahar was lodged by PW-1 on

09.11.2017. He had recorded the statement of the informant and other witnesses,

collected the post-mortem report, prepared sketch map of the place of occurrence.

After completion of investigation, he had submitted charge-sheet (Ext-6) against the

accused. During his cross-examination, PW-11 has admitted that he did not make any

effort to get the confessional statement of the accused recorded by the Court.

18. PW-12, Dr. Arindam Bora, was the doctor on duty on 09.10.2017 in the Udalguri

Civil Hospital who had conducted post-mortem examination on the dead body of

the victim and submitted post-mortem report (Ext-10). In the opinion of the doctor,

the cause of death could not be ascertained as the body was decomposed.

19. After conclusion of recording of evidence of the prosecution witnesses, the

statement of the accused was recorded under Section 313 Cr.P.C. The accused had

denied of having killed his wife or having made any confession before anyone saying

that he had killed his wife. But he has stated that his wife had died because of her

ailment and out of fear, he kept the dead body concealed in the septic tank of the

"kachha latrine of his house.

20. Taking note of the evidence led by the prosecution side, establishing the

learned trial Court had found the following circumstances leading to the guilt of the

accused :-

"36. Thus in the present case the circumstances leading to the guilt of the Page No.# 9/13

accused are as follows :-

1. The accused kept the news of death of his wife hidden from the people of his locality.

2. It is only after the people, on getting a foul smell emanating from the house of the accused, started enquiring about the wife of the accused, who had not been seen for several days, the incident of death of wife of the accused came to light from a confession made by the accused.

3. The dead body of wife of the accused was recovered from the septic tank of the latrine of quarter of the accused and the recovery was on the basis of the information received from the accused.

4. There is an extra-judicial confession made by the accused that he committed murder of his wife and kept her dead body in the septic tank."

21. In so far as the extra-judicial confession made by the accused is concerned,

the learned trial Court has observed that the confession of the accused was found to

be voluntary and truthful and was made without the influence of any threat or

coercion. Therefore, the extra-judicial confession of the accused was relied upon by

the learned trial Court, along with other circumstantial evidences for convicting the

accused under Sections 302/201 of the IPC and sentencing him as indicated above.

22. By referring to the materials available on record, Mr. Hasan, learned Amicus

Curiae, has argued that extra-judicial confession is a weak piece of evidence and

there are contradictions in the version of PWs-3 and 9. Save and except the extra-

judicial confession, there is no other material to sustain the conviction of the

appellant. The accused has also retracted his confession. Under such circumstances,

submits Mr. Hasan, the judgment and order passed by the learned trial Court based

on retracted extra-judicial confession of the accused is liable to be set aside.

Page No.# 10/13

23. Opposing the said argument, Ms. Bhuyan, learned Additional Public

Prosecutor, has submitted that the prosecution has led cogent evidence to establish

the chain of circumstances which un-erringly points towards the guilt of the accused.

Taking note of such circumstantial evidence as well as the extra-judicial confession

made by the accused, the learned trial Court had convicted the appellant. As such,

having regard to the materials available on record there is no justifiable ground for

this Court to interfere with the judgment and order impugned in this proceeding.

24. We have gone through the evidence available on record and have

considered the submissions advanced by learned counsel for both the parties.

24. The evidence adduced by the prosecution side clearly establishes that the

body of the deceased was found in the septic tank of the latrine in the house of the

accused, that too nearly after two days of her death, when foul smell started

emanating in the surroundings of his house. It has also come out from the evidence

available on record that the accused was working in the Mazbat Tea Estate and was

living with his wife Fultuli Boraik in his house situated in the New Line of the Tea Estate.

26. The PWs- 3, 5 and 9 have categorically deposed that the accused had

confessed before them that he had killed his wife with a bamboo lathi and dumped

the dead body in the septic tank. Such testimony of PWs-3, 5 and 9 appears to be

consistent and free from any contradiction. The evidence adduced by PWs-3, 5 & 9

corroborates the evidence adduced by the PW-1 who has also stated that the

accused has confessed before the police. However, there was no cross-examination

of the PWs-1, 3, 5 and 9 on the above count.

Page No.# 11/13

27. PWs-3 and 5 had stated that they took the accused to the Assistant Manager

(PW-8) where he had confessed to have killed his wife. PW-9 has corroborated such

evidence of the PWs-3 and 5 and stated that at that time, only the Line Chowkidars

were present. There is nothing on record to show that there was any other Line

Chowkidar present in the garden on that day other than the PWs-3 and 5.

28. It is to be noted herein that in his statement recorded under Section 313

Cr.P.C. the accused had also admitted to have dumped the dead body of his wife in

the septic tank but the ground stated for doing so is that, he did it out of fear since his

wife had died out of ailment.

29. Law is well settled by a long line of judicial pronouncements that extra-judicial

confession is a weak piece of evidence. In the case of Ishwari Lal Yadav and another

Vs. State of Chhattishgarh reported in(2019) 10 SCC 437 the Supreme Court has held

that extra-judicial confession is a weak piece of evidence but the same can be relied

upon to prove the guilt of the accused if it finds corroboration from other evidence

brought on record. In the present case, as many as four prosecution witnesses being

the PWs-1, 3, 5 and 9, have deposed that the accused had confessed to killing his

wife. There is no reason for the court to hold that these witnesses were not telling the

truth. Moreover, the accused had himself admitted to have dumped the body of

wife in the septic tank. Taking note of such circumstances and by relying upon the

decisions of the Supreme Court in the case of Kalpana Mazumdar Vs. State of Orissa

reported in (2002) 6 SCC 536 and in Sahadevan and another Vs. State of Tamil Nadu

reported in (2012) 6 SCC 403 the learned trial Court has observed that the extra-

Page No.# 12/13

judicial confession made by the accused in this case was voluntary and truthful and

hence reliable. We do not find any justifiable ground to disagree with such opinion of

the learned trial Court.

30. It is also to be noted herein that just before the disappearance of his wife, the

accused was seen to have been living with her in the New Line of the Mazbat Tea

Estate. The said position has also not been disputed by the accused. Therefore, since

the accused has admitted to have dumped the body of his wife in the septic tank

secretly and under mysterious circumstances, it was incumbent upon him to properly

explain the circumstances under which his wife had died. However, no plausible

explanation was offered by the accused. In fact, the explanation furnished by the

accused that he had dumped the body of his wife out of fear since she had died of

ailment, is found to be totally absurd and unacceptable more so, since the accused

had also failed to indicate as to what ailment was she suffering from at the time of

her death. There was a burden cast upon the accused under Section 106 of the

Evidence Act to offer plausible explanation pertaining to the circumstance under

which his wife had died but instead he has given a false explanation which provides

an additional link in the chain of circumstances proved against him by the

prosecution side.

31. For the reasons stated herein above, we do not find any good ground to

interfere with the impugned judgment and order dated 09.01.2019 passed by the

learned trial Court.

This appeal is therefore, held to be devoid of merit and is hereby dismissed.

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Before parting with the record, we wish to place on record our appreciation for

the services rendered by Mr. N. Hasan, learned Amicus Curiae by rendering his

assistance to the Court for disposal of the appeal and direct the Registry to make

available to him, just remuneration, as per the notified rate.

Send back the LCR.

                                JUDGE                            JUDGE

T U Choudhury




Comparing Assistant