Gauhati High Court
CRL.A(J)/62/2017 on 20 June, 2023
Page 1 of 26
GAHC010138622017
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRL.A(J) NO. 62 OF 2017
Sri Doman Mardi,
S/o- Sri Chapal Mardi,
R/o- No. 1, Kadabil, P.S.- Mazbat,
Dist- Udalguri, BTAD (Assam)
........Appellant
-Versus-
1. The State of Assam
2. XXX (Name of the victim not disclosed),
W/o- XXX,
R/o- XXX,
P.S. XXX, Dist- Udalguri.
........Respondents
:: BEFORE ::
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
For the Appellant : Mr. D. Talukdar, Advocate
For the Respondent : Ms. B. Bhuyan, Addl. P.P.
(for respondent No. 1)
: Ms. K. Phukan, Advocate
(for informant)
Date of Hearing : 07.06.2023
Date of Judgment : 20.06.2023
JUDGMENT & ORDER (CAV)
(Mridul Kumar Kalita, J)
1. This criminal appeal has been registered on receipt of an appeal
petition from the appellant, namely, Doman Mardi, who has been detained
in District Jail, Udalguri, through the Superintendent District Jail, Udalguri.
In this appeal, the judgment delivered by the learned Sessions Judge,
Udalguri in Sessions Case No. 116(U)/2014, on 30.06.2017, has been
impugned. By the said judgment, the present appellant along with one
Sona Besra @ Mandal were convicted under Section, 302/34 of the Indian
Penal Code and also under Sections 376/34 of the Indian Penal Code and
they were sentenced to undergo rigorous imprisonment for seven years
under Section 376/34 of Indian Penal Code and also sentenced to undergo
imprisonment for life and to pay fine of Rs.1,000/- and in default of
payment of fine to undergo rigorous imprisonment for one month under
Section 302/34 of the Indian Penal Code. Both the sentences were directed
to run concurrently.
2. The facts relevant for adjudication for this jail appeal, in brief, are as
follows:-
(i) That on 14.10.2023, the first informant " X" (real name not
disclosed) had lodged an FIR before the Officer-in-charge of
Mazbat Police Station, inter alia, stating that on 13.10.2013, at
about 7.30 P.M. she along with her mother "Y" (real name not
disclosed) and her minor son were on the way back to the home
from Udalguri. At that time, the appellant along with one Sona
Besra @ Mandal attempted to commit rape on both the first
informant and her mother in secluded place at Kadabeel Kahijungle
on the bank of river Bhutiamari. It is stated in the FIR that
somehow the informant could escape with her son from that place,
however, the accused persons raped her mother and thereafter
killed her and left her dead body there. It is also stated in the FIR
that as it was night and the people of her village were busy in
Durga Puja, no search was made on that night and on the
following morning, the dead body was found at the said place of
occurrence and injuries were found on the dead body.
(ii) On receipt of the said FIR, the Mazbat P.S Case No. 47/13
under Sections 376/302/34 of IPC was registered and investigation
was initiated. On completion of the investigation, the charge-sheet
was laid against the present appellant, namely, Doman Mardi and
one Sona Besra @ Mandal under Sections 376/302/34 of IPC. The
present appellant as well as Sri Sona Besra @ Mandal faced the
trial remaining in custody. During trial, the prosecution side
examined twenty prosecution witnesses and sixteen documents
were exhibited as Ext. 1 to Ext. 16. The present appellant was
examined under Section 313 Cr.P.C. during which he denied his
involvement in the alleged offences and pleaded his innocence.
However, by the judgment which is impugned in this appeal,
learned Sessions Judge, Udalguri convicted and sentenced the
present appellant as well as co-accused, namely, Sona Besra @
Mandal in the manner as described in paragraph No. 2 herein
above.
(iii) It is pertinent to mention herein that the co-accused, namely,
Sona Besra @ Mandal had also filed one jail appeal which was
registered as Criminal Appeal (Jail) No. 63/2017 wherein it was
found that the accused Sona Besra was minor at the time of
commission of the alleged offence hence, his conviction under
Sections 376/302 of IPC was set aside and the matter was
remitted back to the jurisdictional Juvenile Justice Board through
the learned Sessions Judge, Udalguri for doing needful in
accordance with law.
3. We have heard Mr. D. Talukdar, learned counsel for the petitioner
as well as Ms. B. Bhuyan, learned Additional Public Prosecutor and Ms. K.
Phukan, learned counsel appearing for the informant. Before considering
the submissions of learned counsel for both sides, let us go through the
relevant evidence on record.
4. PW-1, "X" who is the first informant of this case, has deposed that
the appellant is known to her and the incident took place, at about 6 to 7
p.m., when she was returning home after enjoying Puja with her mother
"Y". She has deposed that when they reached the bank of Kadabil River
both the accused persons caught hold of her and she saw both of them
including the present appellant in the light of moon. She has further
deposed that she tried to free herself from their clutches and, since, she
had a child with her, she requested the accused persons to let her go and,
thereafter the accused persons caught hold of her mother. She has
deposed that she saw the present appellant committing bad act (rape) on
her mother. She has further stated that in the light of the moon, she saw
both the accused persons committing bad act, thereafter, she came back
and narrated the incident to her brother, namely, Swapal Murmu in detail
and she lodged the ejahar on the next day. She has also stated that the
Police got her statement recorded by a Magistrate. She has also stated that
she herself saw the accused persons throttling her mother after committing
bad act on her.
5. During cross-examination, PW-1 has stated that her mother was of
about 72-80 years of age. She has also stated that after catching hold of
her, the present appellant lifted her wearing apparels and she raised alarm.
She has also stated that she recognized the present appellant who was
clad in a sporting and other accused was clad in a pair of shorts. She has
denied the suggestion put to her by the defence side that she did not state
to the Police that the present appellant had pulled her on the bank of
Gadabil River and that the accused duo had throttled her mother.
6. PW-2, Sri Sagen Murmu, who is the younger brother of the
informant, has deposed that he did not witness the incident. However, he
has deposed that the complainant had told him that while she and her
mother were coming back from Udalguri, the present appellant and
another accused stopped them and both of them killed her mother after
committing bad act on her. He has further deposed that on being informed,
he along with his brother Swapal Murmu went to the bank of the river and
saw the dead body of his mother there. He has also stated that dead body
was in nude state. He has also deposed that the present appellant along
with other accused Sona Besra @ Mandal confessed before the Police that
they had committed the murder.
During cross-examination, PW-2 has stated that he knows both the
accused persons. He was put some suggestive questions by learned
counsel for the defence which were all answered in negative by him.
7. PW-3, Sri Sarkar Mardi, who is the elder brother of the informant,
has stated that he came to know about the incident from the informant
only who told him that when she and her mother were returning home
from Udalguri after enjoying Puja, the accused persons grabbed her and
since she had a child, they released her, however, they caught hold of her
mother and killed her mother after committing bad act on her. PW-3 has
also stated that when he went to the place of occurrence, he saw the dead
body of the mother of the first informant and after that Sagen Mardhi,
Lakhan Mardhi, Raju Soren, Siru Soren and other villagers apprehended the
present appellant, who told them that he along with Sona Besra had killed
the mother of the first informant after committing rape. Later on, they
were arrested by the Police. PW-3 has also deposed that the accused
persons also stated before the Police that they had killed the mother of the
first informant by striking her with stone after committing rape on her and
on being shown by the accused persons, the Police had seized the said
stone.
During cross-examination, PW-3 has deposed that the deceased
was his neighbour. He has also deposed that the public apprehended the
present appellant in morning after recovery of the dead body of the mother
of the first informant. He has also deposed that the present appellant
confessed his guilt before the public.
8. PW-4, Sri Sapal Murmu, who is the younger brother of the first
informant, has deposed that he knows both the accused persons. He has
also deposed that he did not witness the incident himself. However, first
informant i.e. his sister narrated about the incident to him at night. He has
stated that he went to the place of occurrence on the following day where
he saw the dead body of his mother lying nude at the place of occurrence.
He has also stated that the public later on apprehended the appellant and
the other co-accused and both of them confessed before the public that
they had killed his mother.
During cross-examination, PW-4 has stated that after getting
information about the incident he did not go to the place of occurrence at
night. He had also stated that he informed the public in the morning, he
did not inform the public at night because almost all of the public were at
the Durga Puja Pandal. He also denied a suggestion put to him by the
learned defence counsel that his mother died by falling down after
consuming liquor.
9. PW-5, Sri Sonaram Gowala, has deposed in his evidence that he
was informed, over telephone, about the incident of murder by one Mandal
Kandurai, the VDP Secretary of the Village to which the complainant
belongs and after getting information he went to the place of occurrence
where he saw the dead body of the first informant's mother was lying. He
has also noticed the injuries on the face of the dead body. He has also
deposed that public apprehended the present appellant.
During cross-examination, PW-5 has stated that he only came to
know about the incident from VDP Secretary Mandal Khandalai, however,
he does not have any personal knowledge about the incident.
10. PW-6, Sri Lakhi Ram Hembram has deposed that he was informed
about the incident by brother of the first informant and after knowing
about the incident he went to the place of occurrence.
During cross-examination, he has stated that the public
apprehended the present appellant and had confessed that he had killed
her. He did not saw the other accused persons in the place of occurrence.
11. PW-7, Sri Bishu Hembram, has also stated that he came to know
about the incident from the first informant that the appellant and other
accused had killed the mother of the first informant after committing bad
act on her. He has also deposed that public apprehended them and in his
presence the accused persons confessed about committing bad act on the
mother of the first informant and thereafter killing her by striking with a
stone.
During cross-examination, PW-7 has deposed that he came to
know about the incident in the morning only. He has also deposed that
when public apprehended the appellant he was also present there and the
appellant was also beaten up a bit. However, he had confessed his guilt
before a being beaten up.
12. PW-8, Sri Laxman Sahu, has deposed that he did not witnessed the
incident himself. He has stated that after the incident he went to Mazbat
Police Station for some personal work he saw both the accused persons
before Officer-in-charge of the Police Station. He has also stated that both
the accused persons confessed their guilt before the Officer-in-charge of
Police Station in his presence. When they were confessing before the
Officer-in-charge of the Police Station, one Nilamani Sarma did the
recording of the said confession in DVD which was exhibited as Ext. 2.
During cross-examination, PW-8 has stated that he had not seen
the DVD and the memory card which were seized through Ext. Nos. 2 and
3 in the Court on the day when he deposed as PW-8. He has answered in
negative to the suggestion given to him that the deceased died after falling
down on a stone in a drunken condition.
13. PW-9, Sri Nilomoni Sarmah, who is a part-time Freelance Journalist,
has deposed that he saw both the accused persons in the Police Station on
the following day of the incident when the Officer-in-charge of the Mazbat
Police Station requested him to do the video recording of the confession
made by two accused persons who killed the mother of informant after
committing rape. He has further stated that both the accused persons
confessed their guilt in front of the camera and he made the video
recording of the same. He has also stated that the Police seized the DVD
and the memory card. He has further deposed that after making confession
in his presence, both the accused show the places where they had
committed rape and had killed the victim.
During cross-examination, PW-9 has deposed that he does not
have any personal knowledge about the incident and he has not seen the
memory card or the DVD used for recording, in the Court on the date of his
deposing as PW-9 before the Court. PW-9 was re-examined on 11.12.2014,
during which he exhibited the DVD as M.Ext- 1. During re-examination,
PW-9 has stated that at the time of recording the Police were there and the
Police went to the place of occurrence as led by the accused persons.
14. PW-10, Sri Robin Murmu, has deposed that the first informant is
his elder sister and on the day of incident, he was at Hugrajuli and on his
return on the following day, he was informed by the first informant about
the incident of murder of his mother by the two accused persons. He has
also stated that the Police seized two half pants worn by the accused
persons and he put his thumb impression on the seizure list.
15. PW-11, Sri Mangal Soren, has deposed that he had not seen the
incident himself, however, when the public apprehended both the accused
persons he went there and he saw that both of them confessed their guilt
before public. He has also stated that Police seized two half pants and he
has put his thumb impression on the seizure list.
During cross-examination also, he reiterated that both the accused
confessed before public in his presence that they had killed the mother of
the first informant after committing rape on her. He has also stated that
the public did not assault the accused persons.
16. PW-12, who is the Constable at Mazbat Police Station has deposed
that on 18.10.2013 when he was in duty, SI Dipak Das has seized a DVD
RO 4.7 GB cassette from Nilamani Sarma and prepare one seizure list on
which he put his signature. He exhibited the said seizure list as Ext. 2 and
his signatures thereon as Ext. 2(2).
During cross-examination, he has deposed that he is not aware if
any recording was done in the Police Station on that day.
17. PW-13, Sri Bhuban Kalita, has deposed that both the accused
persons confessed that they are maternal uncle and nephew by relation
and both of them had raped the old woman and apprehending that she
might tell others about it, they had killed her by striking with a flat stone.
He has also deposed that the video recording of their confession was also
made and he was present at that time.
During cross-examination, he has stated that video recording was
done in the Police Station itself.
18. PW-14, who is the Senior Scientific Officer, Serology Division,
Directorate of Forensic Science Laboratory, Assam, Kahilipara, Guwahati,
has deposed that on 13.12.2013 he was advised to examine one parcel
which was received in their office on 19.10.2013 in connection with Mazbat
P.S. Case No. 47/13 under Sections 376/302/34 IPC. The said parcel
consisted of three exhibits enclosed with cloth cover which was sealed. The
description of the articles received by PW-14 is as follows:-
"DESCRIPTION OF ARTICLES:-
1. One white coloured dirty petticoat contains stain of suspected
blood and semen. Marked as "A". Sero No.3236/A.
2. One grey and blue coloured half pant contains stain of
suspected blood and semen. Market as "B". Sero No.3236/B.
3. One parrot green coloured underwear contains stain of
suspected blood and semen. Marked as "C". Sero No.3236/C."
The result of examination is as follows-:
"RESULT OF EXAMINATION:-
The exhibit No. Sero No.3236/A, Sero No.3236/B and Sero
Sero No.3236/C gave positive test for human blood and negative test
for spermatozoa (semen)."
During cross-examination, PW-14 has deposed that he has not
tested the blood stains, hence, he is not in a position to say as to whom
the said blood stain belongs to.
19. PW-15 who was posted as Chief Judicial Magistrate on 12.03.2014
has deposed that he has record the statement of witness of Sonaram
Gowala under Section 164 Cr.P.C. which he exhibited as Ext. 2.
20. PW-16, Sri O. Mize, who was posted as Judicial Magistrate, First
Class, Udalguri on 15.10.2013 has deposed that he has recorded the
statement of "X", informant of this case, in connection with Mazbat P.S.
Case No. 47/13, under Section 164 Cr.P.C, He was not cross examined by
the defence side.
21. PW-17- Smt. Gorathi Tigga, who was working as Women Home
Guard in Mazbat Police Station on 14.10.2013 has deposed that as per
instruction of the Investigating Officer, she brought the witness "X" (the
informant) to get her statement recorded under Section 164 Cr.P.C.
During cross-examination, she has also deposed that she has to be
her signature on the seizure list through which white petticoat was seized.
22. PW-18, Sri Sontan Karmakar, has deposed that he was called by
the Police when they took the accused persons to the place of occurrence
from where the Police had seized a stone with which the accused had killed
the deceased. He exhibited the seizure list as Ext. 1.
23. PW-19, Dr. Arpan Mazumdar, who is the Demonstrator in the
Department of Forensic Medicine, GMCH, has deposed that on 17.10.2013
while he was working as Demonstrator, GMCH, he performed post-mortem
upon the dead body of "Y", 50 years old female and dead body was
brought and identified by UBC/349, Unish Ali, Swapla Murmu, in connection
with Mazbat P.S. Case No. 47/13 under Section 376/302/34 of IPC. He has
further deposed that on examination, he found following:-
"EXTERNAL APPEARANCE:-
A female dead body found in decomposed state wearing white
petticoat (present over the lower parts of legs) and blouse (which is
open from front) Peeling of skin present at places. Maggots at
varying stages of development are present all over the body. Mouth
are easily blockade. Eyes and mouth are eaten by the maggot. Rigor-
mortis is passed of.
Injuries:-
(1) On dissection the chest wall muscles are contused on
both sides.
(2) Clavicle is fracture on right side.
(3) Sternum is fracture (middle 1/3rd)
(4) Fracture of ribs present on both sides (3rd to 6th ribs)
No ligature mark is detected around the neck. On dissection the
neck tissues are found contused on both sides. Thyroid cartilage and
hyoid Bones are found intact.
N.B.:- Two slides taken, which shows negative results for the
presence of spermatozoa."
He has further deposed that in his opinion, the death was due to
asphyxia as a result of combined effect of traumatic asphyxia and ante-
mortem compression of neck which is homicidal in nature and caused by
blunt force impact and approximate time since death 3 to 5 days.
During cross-examination, by defence side, PW-19 has stated that
two slides were taken from the posterior phoenix of the vagina which
shows negative results for the presence of spermatozoa.
24. PW-20, Sri Dipak Das, who is the Investigating Officer of this case,
has deposed that on 14.10.2013 while he was working as a Second Officer
in Mazbat Police Station, one Kushal Bhengra, a resident of village
Gosenpur under Mazbat P.S. given information that a dead body was lying
on the bank of river Bhutiamari at Kadabeel Jungle basti. Accordingly, a GD
Entry No. 226 dated 14.10.2013 was made in the Police Station and he was
entrusted with the investigation and accordingly he accompanied with
Police staff rushed to the place of occurrence. He has further deposed that
by arrival at the place of occurrence i.e. Bhutiamari river, he found a dead
body of women lying in a little deep drain and the people present there
had apprehended the present appellant and kept him there. He has further
deposed that he drew sketch map of the place of occurrence and examined
the witness and Executive Magistrate, Bhaskarjyoti Mahanta arrived there
and held inquest on the dead body, thereafter, the accused was taken to
Police Station. In the Police Station, an FIR was also lodged by the present
informant.
PW-20 has further deposed that he also questioned the first
informant as well as some of her companions in the Police Station and later
on the other accused, namely, Sona Besera was also arrested for Mazbat
town. He has also stated that he took other usual steps for investigation
like sending the dead body for post-mortem examination and seizing of the
available incriminating materials. He has also stated that he recorded the
statements of both the accused persons using electronic device. It is also
stated that in their statement, the accused persons confessed the
commission of crime. He has also stated that he forwarded both the
accused persons for recording their statement under Section 164 Cr.P.C.,
however, in the Court they declined to make any confessional statement.
He has also stated that at the time of re-construction of crime scene, the
accused persons showed the place where they had committed the crime
and the manner in which they committed the crime. They also showed the
stone with which they killed the deceased and accordingly the said stone
was seized from the place of occurrence. He had exhibited the FIR which
was lodged by the first informant of this case as Ext. 10. He has also
exhibited the certified copy of the GD Entry No. 226 dated 14.10.2013 as
Ext. 11. He has also exhibited the seizure list of the stone which was used
for commission for killing of the mother of the first informant as Ext.1. He
had exhibited the seizure list of memory card in which the confessional
statement of accused persons kept recorded as Ext. 3 and seizure list of
Cassette in which re-construction of crime scene was recorded as Ext. 4,
Seizure list of petticoat of the deceased as Ext.6, seizure list of the pair of
shorts of the present appellant as Ext. 12, seizure list of the pair of parrot
(Green) coloured which was worn by Sona Besra as Ext. 13, the statement
of present appellant made before the Investigating Officer as Ext. 14,
statement of Sona Besra @ Mondol Besera made before the Investigating
Officer as Ext. 15 and the charge-sheet as Ext. 16.
During cross-examination, he has stated that though the date of
incident as mentioned in the ejahar as 13.10.2013 but he received the
same on 14.10.2013. He has also stated that he did not get the DNA test
of the two accused persons done. He has also deposed that the first
informant had stated before him that the accused person caught hold of
her and she could identify the accused. She has also stated before him that
she could see the face of the accused by the light of the moon. He has
denied the suggestion that the investigation was not properly done by him.
25. During his examination under section 313 of the Code of Criminal
Procedure, 1973 the appellant gave no explanation apart from squarely
denying the testimony of prosecution witnesses which were incriminating in
nature against him. He pleaded his innocence. Though, during his
examination under section 313 of the Code of Criminal Procedure, 1973, he
had stated that he would adduce defence evidence, however, no defence
evidence was adduced by the present appellant.
26. Mr. D. Talukdar, learned counsel for the appellant has submitted
that learned trial court has based its finding of conviction against the
present appellant mainly on the testimony of sole eye witness i.e. PW-1,
who is also the informant in this case, who has deposed during trial that
she saw the accused persons committing bad act (rape) of her mother and
she identified both the accused in the moonlight, however, in her
statement recorded under Section 164 Cr.P.C. she has not stated that she
saw the accused persons committing bad act (rape) on her mother.
Learned Counsel for the appellant has submitted that as the sole eye
witness, who is also the daughter of the deceased, has made
exaggerations and embellishments while deposing as PW-1, hence, her
testimony ought not to have been relied upon for arriving at a finding of
guilt of the present appellant. He has also submitted that all other
prosecution witnesses are reported witnesses and the appellant, during his
examination under section 313 Cr.P.C, has denied making any extrajudicial
confessional statement before said witnesses, hence learned trial court
erred in arriving at the finding of guilt the present appellant basing on said
evidence.
27. On the other hand, Ms. B. Bhuyan, learned Additional Public
Prosecutor has submitted that testimony of PW-1 to the effect that the
present appellant caught hold of her near the bank of Kadabeel river has
remained uncontroverted. She has further submitted that the place of
occurrence in the instant case is a secluded place and the presence of the
present appellant in the said place has been proved by the testimony of
PW1, however, the appellant has failed to explain what he was doing there
at that time. The learned Additional Public Prosecutor has further
submitted that merely because of the fact thatthe PW-1 happens to be the
daughter of the deceased, her testimony may not be discarded. In support
of her contention, she has cited a ruling of Hon'ble Supreme Court of India
in "Bijoy Singh v. State of Bihar" reported in (2002) 9 SCC 147
wherein it was observed that for merely being relatives of the deceased or
the injured is no ground to reject the testimony of the witnesses who are
otherwise found to be trustworthy and reliable. Learned Additional Public
Prosecutor also submitted that the appellant, along with co-accused, had
showed the stone, which was used for killing the mother of first informant,
to the police and this evidence also lends credence to the prosecution
story. She has submitted that learned trial court has rightly convicted the
present appellant under section 376/34 of Indian penal code and 302/34 of
Indian Penal Code and no interference should be made in the finding of
conviction as well as in the sentence imposed by the learned trial court.
28. We have considered the rival submissions made by learned
counsels for both the sides. On perusal of the impugned judgment, it
appears that learned trial court mainly relied upon the testimony of PW-
1('X', the first informant) coupled with testimony of PW-3, PW-4, PW-6 &
PW-11 before whom the appellant had made extrajudicial confession. It
also appears that learned trial court also relied on testimony of PW- 20
(the Investigating Officer), wherein he deposed that the accused persons
led him to the place of occurrence from where he seized one stone, on
being shown by the accused persons, which was used for commission of
the offence. Learned trial court treated the evidence regarding recovery of
the stone used for commission of offence as admissible under section 27 of
the Indian Evidence Act. Though, there is also evidence on record
regarding confession of guilt by the present appellant before police, the
learned trial court has correctly discarded the said evidence as
inadmissible.
29. As regards conviction of the present appellant under section
376/34 of the Indian Penal Code is concerned, it appears that though PW-1
has deposed before the learned trial court that she saw the present
appellant committing bad act (rape) on her mother, however, she has not
stated so either in her statement recorded under section 161 of Cr.P.C
before the Investigating Officer in her statement recorded under section
164 of Cr.P.C before Judicial Magistrate. In both her previous statements,
she has only stated that present appellant had caught hold of her and she
could identify the present appellant and she somehow escaped but her
mother was detained by the accused persons. Thus there appears to be an
exaggeration made by the informant while deposing as PW-1 during trial.
Though, PW-1 made some exaggerations, while deposing as a prosecution
witness during the trial, we are of the considered opinion that if we ignore
the exaggerated part of her testimony, the remaining part of her testimony
still inspire confidence as it remained uncontroverted. However, we are of
the considered opinion that her testimony to the effect that she saw the
present appellant committing bad act on her mother is not believable as
the omission on her part to state so in her statements recorded under
section 161 and 164 of the Code of Criminal Procedure, 1973 amounts to
contradiction and makes that portion of her testimony unreliable where she
has stated that she saw the appellant committing bad act on her mother.
30. Further, though the confession made before police is inadmissible
and has been correctly not relied upon by the learned trial court, however,
even if we peruse the said confessional statement, which is exhibited as
Exhibit 14, it appears that the present appellant did not confess that he
committed rape on the old woman(deceased), he had only stated that co
accused 'Mandal' had committed rape on old woman and the present
appellant only stated that he caught hold of the daughter of the deceased
and later on let her go and that he and the co accused had killed the
mother of the first informant.
31. The forensic evidence, on record, i.e., the testimony of PW-14
(Senior Scientific Officer, Serology Division, Directorate of Forensic Science
Laboratory, Kahilipara, Assam) as well as Forensic Laboratory Report
shows that no traces of semen were found on the seized clothes of either
the deceased or the appellant. Further, the testimony of PW-19, i.e., the
doctor who conducted the post-mortem examination of the deceased, also
shows that the slides taken from posterior phoenix of the vagina of the
deceased shows negative result for the presence of spermatozoa. Thus,
the forensic evidence does not suggest that the deceased was also raped
before being killed.
32. As regards extrajudicial confession made by the present appellant
before PW-3, PW-4, PW-6, PW-7, and PW-11, it appears that PW-3 has
deposed that on being apprehended by villagers, the present appellant
confessed that he along with Sona Bersa killed the mother of the first
informant to committing rape on her. Whereas PW-4 has stated that both
the accused persons confessed killing of the mother of the first informant.
PW-4's testimony is silent regarding confession by the present appellant of
committing rape on the deceased before killing her. Similarly PW-6 also
deposed only regarding confession by the accused persons that they
committed murder without indicating anything regarding confession of the
rape by the present appellant. PW-7 was deposed that both the accused
persons confessed before the public that after committing bad act on the
informant's mother, they kill her by striking with stone. PW-11 has deposed
that both the accused persons had confessed their guilt before the public
without specifying as to which accused confessed what. Thus, we have
seen from the testimonies of PW-3, PW-4, PW-6, PW-7, and PW-11 that
said oral testimonies are not uniform as regards extrajudicial confession by
the present appellant regarding commission of rape by him, though there
is uniformity as regards confession regarding killing of the deceased. We
have to also remember that during his examination under Section 313 of
the Code of Criminal Procedure, 1973, the appellant has denied making
any such extrajudicial confessional statement. Otherwise also, an
extrajudicial confession is a weak evidence in itself unless corroborated by
other cogent evidence. In the instant case, in view of discussion made and
reasons stated in foregoing paragraphs, we are of the considered opinion
that the available material, on record, is not sufficient to come to a finding
that the present appellant also committed rape on the deceased before she
was killed. Thus, we are constrained to hold that the prosecution side has
failed to prove the charge under section 376/34 of the Indian Penal Code
against the present appellant beyond reasonable doubt and under the
circumstances of this case the appellant is entitled to get benefit of doubt,
which we hereby give to him. The appellant is accordingly acquitted of
charge under section 376/34 of the Indian Penal Code.
33. As regards the finding of conviction of the present appellant under
section 302/34 of the Indian Penal Code is concerned, the testimony of
PW-19, i.e., the doctor who conducted the post-mortem examination of the
deceased as well as the Post-Mortem Examination Report shows that the
deceased suffered from following injuries:-
(1) On dissection the chest wall muscles are contused on both sides.
(2) Clavicle is fracture on right side.
(3) Sternum is fracture (middle 1/3rd)
(4) Fracture of ribs present on both sides (3 rd to 6th ribs)
PW-19 also opined that the death was due to asphyxia as a result of
combined effect of traumatic asphyxia and ante-mortem compression of
neck which is homicidal in nature and caused by blunt force impact. The
testimony of PW-19, as regards his findings in the post-mortem
examination report could not be contradicted by the defence side, thus the
homicidal nature of the cause of death of the deceased is not disputed and
remained uncontroverted. The testimony of PW-1 that while she was
coming along with her mother and her child, after enjoying Puja at
Udalguri, when they reached the bank of river Kadabeel, the present
appellant and the co-accused accosted them and that the appellant caught
hold of PW-1 and thereafter allowed her to go as she had the child and
that her mother was detained by the appellant and the other co-accused
has also remained uncontroverted.
34. On perusal of testimony of PW-20 (the Investigating Officer) as
well as Exhibit 11, which is the certified copy of GD Entry No. 226 dated, it
appears that the dead body of the mother of the first informant was found
lying on the bank of river at kadabeel jungle basti on the morning of
14.10.2013, that is, on the next day of when the mother of the first
informant was detained by the appellant and the co-accused. Thus, though
there is evidence to show that on previous evening, when the mother of
the PW-1 was last seen alive, she was detained by the appellant and the
co-accused, however, the appellant has offered no explanation regarding
as to when and under what circumstances he had parted the company of
the deceased.
35. Moreover, though we have seen earlier that the extrajudicial
confession of the appellant as regards offence under section 376/34 of the
Indian Penal Code was found to be of no use for the prosecution side,
however, testimonies of PW-3, PW-4, PW-6, PW-7, and PW-11, as regards
extra judicial confession made by the present appellant before the public
that he and the co-accused had killed the mother of the informant appears
to be relevant and under the facts and circumstances of the present case it
inspires confidence and may be regarded as a corroborative evidence as
regards allegation against the present appellant under section 302/34 of
the Indian Penal Code.
36. As regards the evidence regarding the seizure of stone, which was
allegedly used for killing the deceased, we are of the considered opinion
that in absence of a proper disclosure statement of the appellant to show
that the said weapon of offence (stone) was discovered in consequence of
the information received from the appellant, in custody of police, same is
not admissible under section 27 of the Indian Evidence Act. However, the
other evidence on record namely the medical evidence showing the
homicidal nature and extent of injuries found on the deceased, the
testimony of PW-1 discussed in foregoing paragraphs more particularly her
evidence regarding the fact that the first informant (PW-1) and her mother
(deceased) were caught hold of by the present appellant and the co
accused and that the PW-1 somehow escaped from their clutches,
however, her mother was detained by the present appellant and the co
accused and that on the next day morning dead body of the mother of the
informant was found from the same place with multiple injuries and failure
on the part of the present appellant to give explanation regarding as to
when and under what circumstances he had parted the company of the
deceased, lead only to the inference that the present appellant along with
co accused intentionally caused death of "Y" i.e., the mother of the first
informant. We are thus, of the considered opinion that the conviction of
the present appellant under section 302/34 of the Indian Penal Code by the
learned trial court needs no interference by this court.
37. In view of discussions made in the foregoing paragraphs and for
reasons stated therein, the conviction of the present appellant under
section 376/34 of the Indian Penal Code and the sentence imposed there
for is hereby set aside. However, the conviction of the present appellant
under section 302/34 of the Indian Penal Code and the sentence imposed
there for, by the learned trial court, is thereby upheld.
38. Let the case record of Sessions case No 116(U)/2014 along with
connected files be sent back In the Court of learned Sessions Judge,
Udalguri along with a copy of this judgment.
39. This appeal is accordingly disposed of.
JUDGE JUDGE
Comparing Assistant
