Gauhati High Court
CRL.A(J)/25/2022 on 1 August, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/27
GAHC010017822022
2024 : GAU-AS : 8121-DB
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL [J] NO. 25/2022
Leben Ramchiary
..................Appellant
-VERSUS-
The State of Assam, Represented by
Public Prosecutor, Assam.
...................Respondent
Advocates :
Appellant : Ms. B. Chowdhury, Amicus Curiae
Respondent : Ms. A. Begum, Additional Public Prosecutor,
Assam
Date of Hearing, Judgment & Order : 01.08.2024
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
JUDGMENT & ORDER [ORAL]
[M. Choudhury, J]
The instant criminal appeal from jail under Section 383, Code of Criminal
Procedure, 1973 [CrPC] is preferred against a Judgment and Order dated
23.09.2021 passed by the Court of learned Sessions Judge, Baksa at Mushalpur in
Sessions Case no. 50 of 2020, which arose out of Mushalpur Police Station Case no.
41/2020 and corresponding PRC Case no. 834/2020. In the trial before the learned
Sessions Judge, Baksa, the accused-appellant faced a charge of murder under
Section 302, Indian Penal Code [IPC] and after the trial, the learned Sessions
Judge, Baksa ['the trial court', for short] finding the accused-appellant guilty of
uxoricide for committing the murder of his wife, has convicted him under Section
300, IPC. After hearing him on the point of sentence under Section 235[2], IPC, the
learned trial court hassentenced the accused-appellant under Section 302, IPC to
undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default of
payment of fine, to undergo rigorous imprisonment for further 6 [six] months.
2. The case of the prosecution, in brief, is that investigation into the case, Mushalpur
Police Station Case no. 41/2020 was launched on 20.05.2020 when one Amrit
Brahma, as the informant, lodged a First Information Report [FIR] before the In-
Charge, Nikashi Out Post on that day alleging that the accused was involved behind
the murder of his wife, Phishi Ramchiary on 14.05.2020.
3. On receipt of the FIR, the In-Charge, Nikashi Out Post, Mukunda Das [P.W.11]
registered the same at 10-00 a.m. as Nikashi Out Post General Diary Entry No. 339
dated 20.05.2020 and forwarded the FIR to the Officer In-Charge, Mushalpur Police
Station for registering a case after proper sections of law. On receipt of the FIR, the
Officer In-Charge, Mushalpur Police Station registered the FIR as Mushalpur Police
Station Case no. 41/2020 for the offences under Section 302, IPC and Section 201,
IPC. The In-Charge, Nikashi Out Post, Mukunda Das [P.W.11], a Sub-Inspector of
Policehad already taken up the investigation of the case on being authorized by the
Officer In-Charge, Mushalpur Police Station in reference to General Diary Entry no.
339.
4. In the FIR, the informant who also testified as P.W.2, had inter alia mentioned that
on 20.05.2020, the accused, Leben Ramchiary, a resident of Village No. 2
Shantipur, Police Station - Mushalpur confessed before the Government
Gaonburah, Somnath Sarma [P.W.3] to the effect that on 14.05.2020, he [the
accused] had killed his wife, Phishi Ramchiary with a Khukuri over domestic issues
and kept the body buried under the floor of his house.
5. In the course of investigation of the case, the I.O. [P.W.11] recorded statements of
a number of witnesses under Section 161, CrPC. The dead body of the deceased
was also dug out from a place inside the house of the accused on 20.05.2020. After
digging out the dead body, inquest proceeding was conducted at that place itself by
an Executive Magistrate on 20.05.2020. Thereafter, the dead body of the deceased,
Phishi Ramchiarywas forwarded to Dr. Ravi Boro Civil Hospital, Mushalpur on
20.05.2020 itself. The I.O. after going to the place of occurrence [P.O.], that is, the
house of the accused took the accused into custody. The I.O., in the course of
investigation, also made seizure of a Khukuri [a sharp cutting weapon], besides
preparing a Sketch Map of the P.O.
6. After completing investigation into the case, Mushalpur Police Station Case no.
41/2020 [corresponding PRC Case no. 834/2020], the I.O. submitted a charge-
sheet under Section 173[2], CrPC vide Charge-Sheet no. 20/2020 on 25.06.2020
finding a prima facie case well established against the accused for committing the
offences under Section 302, IPC and Section 201, IPC. On submission of the
charge-sheet, the learned Chief Judicial Magistrate, Baksa, Mushalpur secured the
appearance of the accused from jail custody on 02.11.2020. After making enquiry
with the accused, a Legal Aid Counsel was appointed to represent the accused in
the case. As the offence under Section 302, IPC is exclusively triable by the Court of
Sessions, the learned Chief Judicial Magistrate, Baksa complied with the procedure
prescribed in Section 207, CrPC by furnishing copies of the case, PRC Case no.
834/2020to the accused on 02.11.2020. The learned Chief Judicial Magistrate,
Baksa, Mushalpur, by an Order of Commitment dated 02.11.2020, committed the
case records PRC Case no. 834/2020 to the Court of Sessions, Baksa, Mushalpur for
trial, by notifying the Public Prosecutor as regards commitment of the case; and by
directing the jail authority to cause production of the accused before the Court of
Sessions on 11.11.2020.
7. On receipt of the case records of PRC Case no. 834/2020, the Court of Sessions,
Baksa, Mushalpur ['the trial court'] registered the same as Sessions Case no. 50 of
2020. On appearance of the accused before the learned trial court, the case of the
prosecution was opened by the learned Public Prosecutor. After hearing the learned
Public Prosecutor and the learned defence counsel; and upon perusal of the
materials available in the case record, the learned trial court framed the following
charge, on 23.12.2020, against the accused :-
That you on 14.05.2020 at your own house, in Vill-No. 2 Shantipur under
Mushalpur Police Station, committed murder of your wife Phishi Ramchiary
by intentionally causing her death and thereby you have committed an
offence punishable under Section 302 IPC within my cognizance [Sessions
Judge].
8. When the charge was read over and explained to the accused, the accused pleaded
not guilty to the charge and claimed to be tried. During the course of the trial, the
prosecution in order to bring home the charge, examined eleven nos. of witnesses
including the I.O. and the Autopsy Doctor, and the prosecution witnesses were :- [i]
P.W.1 : Dr. Manoj Mazumdar; [ii] P.W.2 : Amrit Brahma; [iii] P.W.3 : Somnath
Sarma; [iv] P.W.4 : Sonaram Goyary; [v] P.W.5 : Rabi Basumatary; [vi] P.W.6 :
Sansuma Daimary; [vii] P.W.7 : Arun Boro; [viii] P.W.8 : Nebla Boro; [ix] P.W.9 :
Guneswar Ramchiary; [x] P.W.10 : Sibra Goyary; and [xi] P.W.11 : Mukunda Das,
the I.O. The prosecution side also exhibited seven nos. of documents, namely, [i]
Ext.-1 : Post-Mortem Examination Report; [ii] Ext.-1-A : FIR; [iii] Ext.-2 : Inquest
Report; [iv] Ext.-3 : Dead Body Challan; [v] Ext.-4 : Seizure List; [vi] Ext.-5 : Sketch
Map of the P.O.; and [vii] Ext.-6 : Charge-Sheet. In additional, the prosecution also
exhibited two material exhibits:- [i] Mat. Ext.-1 :a Nepali Khukuri; and [ii] Mat. Ext-
2 : a Compact Disc. One Charan Ramchiary, the son of the accused and the
deceased was examined as a Court Witness, C.W.1.
9. After closure of the evidence from the prosecution side, the accused was examined
under Section 313, CrPC and he was asked to explain the incriminating
circumstances which had emerged against him from the prosecution evidence. The
plea of the accused was of denial. When the accused was asked as to whether he
would adduce defence evidence, he declined to adduce any defence evidence in
support of his case. After hearing the learned counsel for the parties; and upon
evaluation of the evidence/materials on record; the learned trial court holding the
accused guilty of the offence under Section 300, IPC, passed the Judgment and
Order dated 23.09.2021 of conviction and sentence under Section 302, IPC,
impugned herein.
10. We have heard Ms. B. Chowdhury, learned Amicus Curiae for the accused-appellant
and Ms. A. Begum, learned Additional Public Prosecutor for the respondent State of
Assam.
11. Ms. Chowdhury, learned Amicus Curiae appearing for the accused-appellant has
submitted that the learned trial court has erred in placing absolute reliance in the
testimony of a child witness, who was examined as C.W.1. It has been contended
that the testimony of a child witness is to be considered with utmost care and
caution. Ms. Chowdhury has further contended that the learned trial court has
placed reliance in the extra-judicial confession allegedly made by the accused
beforefew of the prosecution witnesses to hold that the accused had confessed
about the commission of crime of murder of his wife. Contending that an extra-
judicial confession by itself is a weak piece of evidence, and requires corroboration
by credible evidence, Ms. Chowdhury has also contended that the purported extra-
judicial confession was alleged to have been made much after the death of the
deceased. The learned Amicus Curiae has also expressed doubt about the manner
in which the alleged weapon of assault was shown to be recovered. It has been
contended that the Khukuri, seized during the course of investigation, cannot be
held as the weapon of assault as the same was not sent for serological
examination. It has been contended that the learned trial court has also failed to
take into consideration the explanation given by the accused during his examination
under Section 313, CrPC wherein he mentioned about the involvement of other
person[s] as the perpetrator[s] of the crime. Contending as above, the learned
Amicus Curiae has submitted that the case of the prosecution is full of infirmities
and it is settled proposition that the benefit of doubt, at all stages, goes in favour of
the accused. In such view of the matter, the Judgment and Order of conviction and
sentence passed by the learned trial court is liable to be set aside on the ground
that the prosecution has failed to prove its case beyond all reasonable doubts.
12. Strenuously opposing the contentions of the learned Amicus Curiae, Ms. Begum,
learned Additional Public Prosecutor appearing for the State has submitted that in
the case in hand, the prosecution was successful in proving of the required
circumstances by cogent and credible evidence. The story sought to be projected
by the accused during his examination under Section 313, CrPC by providing an
explanation, a feeble one, was clearly not true and in view of such explanation
turning out to be not truthful one, such explanation has emerged as an additional
link, corroborating the case of the prosecution. The testimony of the prosecution
witnesses regarding extra-judicial confession were not at all disputed by the
defence during the trial and as such, the contention of the learned Amicus Curiae
that such extra-judicial confession is not to be believed is not acceptable at all at
the stage of appeal. The learned Additional Public Prosecutor has contended that
the dead body of the deceased was recovered from inside the house of the accused
and the same is a clear pointer to the fact that the accused had the exclusive
knowledge about the place where the dead body of the deceased was kept
concealed. The weapon of assault, that is, the Khukuri was handed over to Police
by the accused himself at the P.O. and by the time the Khukuri was handed over, a
period of about six days had already elapsed. Thus, the factum of not sending the
same for serological examination cannot have any effect in the case of the
prosecution, which, at best, can be a defect in the investigation, without ensuring
any benefit to the accused. The extra-judicial confession made by the accused
together with the testimony of the court witness, C.W.1 have conclusively
established that it was the accused and none else who was the perpetrator of the
crime. From the nature of injuries found on the person of the deceased, it is
conclusive that the death of the deceased was due to an act of murder. By so
canvassing, the learned Additional Public Prosecutor has submitted that as the
learned trial court has rightly returned the finding of guilt against the accused, the
appeal being bereft of any merits, deserves dismissal.
13. We have given due consideration to the rival submissions of the learned counsel for
the parties and have also perused the evidence/materials on record, including the
ocular evidence and the documentary evidence, by going through the case records
of Sessions Case no. 50 of 2020, in original.
14. As the learned counsel for the parties have advanced arguments on the aspect of
extra-judicial confession and the extra-judicial confession of the accused is also one
of the basis on which the learned trial court has reached the finding of guilt, it is
apt, at first, to refer to the evidence/materials led on that point.
14.1. The prosecution witness, P.W.3 is the Government Gaonburah and the informant,
P.W.2 is the President of the Village - No. 2 Shantipur. The prosecution witnesses,
P.W.4, P.W.5, P.W.6, P.W.7, P.W.8, P.W.9 & P.W.11 are residents of Village - No.
2, Shantipur and are co-villagers of the accused and the deceased.
14.2. In their testimonies, P.W.4 - P.W.11 had all deposed that it was P.W.3, Somnath
Sarma before whom the accused had confessed first.
14.3. In his testimony, P.W.3, Somnath Sarma, a resident of Village - Bhutan Khuti,
deposed to the effect that it was on a day in May, 2020, the accused came to his
house in the morning and confessed to him [P.W.3] that he [the accused] had killed
his wife, Phishi Ramchiary. After such disclosure was made, P.W.3 took the accused
with him to the village of the accused, a resident of Village - No. 2 Shantipur. When
they reached the village of the accused, the villagers were made to gather at a
place. Before those villagers and in presence of P.W.3, the accused again confessed
that he had killed his wife, Phishi Ramchiary. Thereafter, a village mel was called
wherein also the accused had confessed that he had killed his wife. The matter was
thereafter, telephonically informed to Police. The Police personnel came to the
village of the accused after about half an hour after the village mel. An Executive
Magistrate also accompanied the Police personnel. P.W.3 further stated that before
the Police personnel and the Magistrate, the accused again confessed that he had
killed his wife. P.W.3 further stated that when Police asked the accused about the
dead body, the accused himself dug the earth under the chang [a kind of platform]
of his house and fetched the dead body of his wife therefrom. The accused
disclosed that he had killed his wife by a Khukuri and thereafter, he produced the
Khukuri to the Police. The Khukuri was thereafter, seized by Police by preparing a
Seizure List, Ext.-4 and P.W.3 identified his signature therein as Ext.-4[1]. P.W.3
further stated that inquest on the dead body was held by the Executive Magistrate
in his presence and he exhibited the Inquest Report as Ext.-2 with his signature
therein as Ext.-2[2]. The Khukuri seized by the Seizure List [Ext.-4] when shown to
him before the court, P.W.3 identified the Khukuri [Mat. Ext.-1] as the one which
the accused produced before the Police.
14.4. During cross-examination, P.W.3 deposed that Police personnel came to the P.O. on
receiving his information given telephonically. The FIR was lodged subsequently
and after lodging of the FIR only, his statement was recorded by Police. This
witness further stated that the FIR was lodged after arrival of the Police personnel
at the P.O. P.W.3 denied a suggestion that he did not give any statement before
Police in connection with the case; and that he deposed falsely.
14.5. From the above testimony of P.W.3, who is the Government Gaonburah, it has
emerged that he was the first person before whom the accused stated to have
confessed that he had killed his wife, Phishi Ramchiary. It has further emerged that
after such disclosure of the accused before P.W.3, both P.W.3 and the accused
proceeded to the village of the accused, No. 2 Shantipur. At Village - No. 2
Shantipur, a number of villagers gathered at a place and before the gathering of
such villagers, the accused confessed again that he had killed his wife, Phishi
Ramchiary.
14.6. P.W.3 has also made mention of a village mel wherein the accused had confessed
that he had killed his wife. It was after such confession of the accused, the Police
was informed.
15. The informant-P.W.2, Amrit Brahma testified to the effect that the occurrence took
place in the year 2020. P.W.2 deposed that when the wife of the accused, Phishi
Ramchiary was not seen by the neighbours for some time, they made an enquiry
about her but she could not be found. P.W.2 stated that after about six days, the
accused visited the house of the Government Gaonburah, Somnath Sarma [P.W.3]
and confessed before him [P.W.3] that he [the accused] had killed his wife.
Thereafter, the accused, accompanied by P.W.3, came back to the village and
informed the villagers at a village mel, which was presided over by him [P.W.2].
P.W.2 further stated that at the village mel, the accused confessed before them
that he had killed his wife and buried her under the soil inside his house. It was
thereafter, the Police was informed. Then Police personnel arrived at the village and
took the accused into custody. An Executive Magistrate also came with the Police
personnel. At the house of the accused, the accused dug the earth of his house and
disinterred the dead body of his wife in presence of the Executive Magistrate and
the Police personnel apart from him, the Government Gaonburah [P.W.3] and other
villagers. P.W.2 stated that the accused had confessed before them that he had
killed his wife by stabbing her with a sharp Khukuri and the accused himself
produced the Khukuri to the Police. P.W.2 identified the Khukuri [Mat. Ext.-1],
shown to him in the court, as the one which the accused produced before the
Police. P.W.2 further stated that he was a witness to the seizure of the Khukuri,
which the Police had seized by a Seizure List. P.W.2 exhibited the FIR lodged by
him as Ext.-1 with his signature therein as Ext.-1[1]. Like P.W.3, P.W.2 also stated
that it was P.W.3 who telephonically informed the Police prior to the institution of
the FIR [Ext.-1] by him in the capacity of the President of the village. P.W.2 stated
that his statement was recorded by Police during the investigation.
15.1. During cross-examination, P.W.2 stated that Khukuri like Mat. Ext.-1 is usually kept
almost in every household of the village. P.W.2 also stated that the wife of the
accused used to visit houses of other persons and the accused used to enter into
quarrels with her. P.W.2 further stated that he never saw the wife of the accused
interacting with other male persons of their village. When suggestions were given
to P.W.2, he denied those suggestions. P.W.2 denied suggestions that he in his
previous Police statement did not state that the accused dug the earth of his house
and fetched the dead body of his wife; and that he did not state that Police
personnel and the Executive Magistrate came to the house of the accused.
16. P.W.2, the President of the village, had corroborated the testimony of the P.W.3 on
the point that the accused first visited the house of P.W.3 and after confessing
before P.W.3, both P.W.3 and the accused came to the village of the accused to
confess before the villagers again in the same manner. There was a village mel
which was presided over by P.W.2 and in the said village mel, the accused
confessed before the villagers that he had killed his wife and buried her under the
ground inside his house. The witness, P.W.2 like P.W.3, deposed that after the
accused made confession, at first, before P.W.3 and thereafter, before the villagers
during the village mel, the Executive Magistrate and the Police personnel came to
the village and thereafter, all proceeded to the house of the accused.
17. P.W.4, Sonaram Goyary also testified that it was on 20.05.2020 the accused made
the confession before the villagers that he had killed his wife. Hearing about the
incident, P.W.4 stated to have visited the house of the accused and after going
there, he found presence of the accused, the Gaonburah and other villagers there.
P.W.4 stated that the accused stated before them that he had killed his wife. It was
after such confession, the Gaonburah [P.W.3] telephonically informed the Police
and the Police personnel accompanied by the Executive Magistrate came to the
village thereafter. P.W.4 further stated that when Police asked the accused, the
accused confessed again that he had killed his wife and buried her under the
ground of his house. Thereafter, the accused himself dug out the earth and
disinterred the dead body of his wife. P.W.4 further stated that the accused himself
produced and handed over the Khukuri to the Police personnel and the same was
seized by Police in his presence by the Seizure List[Ext.-4]. P.W.4 proved his
signature in the Seizure List [Ext.-4] as Ext.-4[2]. P.W.4 also identified the Khukuri
[Mat. Ext.-1], when shown to him in the court, as the one which the accused
produced before the Police. In the cross-examination, the defence put a number of
suggestions before him and P.W.4 denied all those suggestions categorically.
18. The prosecution witnesses - P.W.5, P.W.6, P.W.7, P.W.8, P.W.9 & P.W.10 - have
all corroborated the testimonies of P.W.2, P.W.3 & P.W.4 on the aspects that the
accused had made confession before P.W.3 at first and thereafter, before them by
disclosing that he had killed his wife and thereafter, buried her dead body under the
soil in the inside of his house. These prosecution witnesses have also corroborated
the testimonies of P.W.2, P.W.3 & P.W.4 on the point that the Executive Magistrate
and the Police personnel had come to the village after being informed telephonically
by P.W.3 about the matter at Nikashi Out Post. After arrival of the Police team, all
of them went to the house of the accused where the accused again confessed
regarding killing of his wife by him. These prosecution witnesses had also
corroborated the testimonies of P.W.2, P.W.3 & P.W.4on the point that after arrival
of the Executive Magistrate and the Police personnel, the accused after confessing
that he had killed his wife, dug out the soil of a place inside his house and
disinterred the dead body of his wife therefrom. These prosecution witnesses have
also supplemented the testimonies of P.W.2, P.W.3 & P.W.4 on the point that it was
the accused, who after confessing that he had killed his wife by a Khukuri, handed
over the Khukuri to the Police and the Khukuri was seized by way of a Seizure List
[Ext.-4] in presence of P.W.2, P.W.3 & P.W.4, who subscribed their signatures on it
witnessing the seizure of the Khukuri. The prosecution witnesses, P.W.2, P.W.3 &
P.W.4 had identified the Khukuri [Mat. Ext.-1], when shown to them in court, as
the one which the accused had handed over to Police in their presence. On
scrutiny, it is found that the afore-mentioned prosecution witnesses were not cross-
examined by the defence on any of the afore-mentioned aspects.
19. A reference to the medical evidence which are in the forms of the testimony of the
Autopsy Doctor, P.W.1 and the Post-Mortem Examination [PME] Report [Ext.-1] can
be made now to find out about the nature of death met by the deceased.
20. P.W.1, Dr. Manoj Mazumdar, on 20.05.2020, was serving as a Senior Medical &
Health Officer at Dr. Ravi Boro Civil Hospital, Mushalpur. P.W.1 testified to the
effect that at 04-15 p.m. on 20.05.2020, he performed post-mortem examination
on the dead body of Phishi Ramchiary, a female aged about 48 years, in connection
with Mushalpur Police Station Case no. 41/2020, after it was identified by UBC,
Rahul Barman and Sansuma Daimary [P.W.6]. P.W.1 stated that after conducting
autopsy on the dead body, he found the following :-
External appearance: Partially decomposed female dead body without cloth.
Mud and sand particle present over the body. Eye and mouth are partially
open. Body cold. Rigor Mortis passes out.
1. Cut injury of 10 x 2 cm bone deep present over front of neck 4cm above
sternoclevicular joint.
2. Multiple cut injury of sizes ranging 10 x 3 cm muscle deep to 5 x 1cm
present over waist, buttock, back, hands and thighs. Black stain is present
around the margin around the injury.
No ligature mark detected. Injury as described.
Granium and Spinal Canal: Scalp as described. Skull healthy. Vertebrae as
described. Membrane healthy. Brain semi liquified. Spinal cord not examined.
Thorax: Walls as describes. Rib and cartilage healthy. Pleurae healthy. Larynx
and trachea as described. Both lung partial decomposed. Pericardium healthy.
Heart healthy. Vessels healthy.
Abdomen: Walls as described. Mouth pharynx, oesophagus - partial
decomposed. Stomach - Partial decomposed. Small intestine : Partial
decomposed. Large intestine: partial decomposed. Liver : Partial decomposed.
Spleen: partial decomposed. Kidney : Both kidneys partial decomposed.
Bladder : partial decomposed. Organs of generation, external and internal:
Uterus healthy and empty.
Muscles, bones and joints: Injury as described. Disease and deformity not
detected. Dislocation not detected.
20.1. P.W.1 testified that after autopsy, he gave his opinion to the effect that the death
was due to injuries sustained and all the injuries were ante-mortem in nature. It
was his opinion that the death was caused by sharp cutting weapon and the
approx. time of death was 3-7 days. P.W.1 proved the Post-Mortem Examination
[PME] Report as Ext.-1 and identified his signature therein as Ext.-1[1] and the
signature of Dr. Subash Chandra Sarma, Superintendent of Dr. Ravi Boro Civil
Hospital as Ext.-1[2] respectively. P.W.1 also exhibited the Inquest Report as Ext.-2
and his signature therein as Ext.-2[1] and the Dead Body Challan as Ext.-3 with his
signature therein as Ext.-3[1]. Notably, cross-examination of P.W.1 was declined by
the defence.
21. In the PME Report[Ext.-1], it was recorded that the arrival of the dead body was at
03-45 p.m. on 20.05.2020 and the post-mortem examination was performed at 04-
15 p.m. on 20.05.2020. In the PME Report[Ext.-1], the following findings were
recorded :-
I - External Appearance
1. Condition of subject stout emaciated, decomposed etc. :
Partially decomposed female dead body without cloth. Mud and sand
particle present over the body. Eye and mouth are partially open. Body cold.
Rigor mortis passes out.
2. Wounds - position, and character :
1] Cut injury of 10 X 2 cm bone deep present over front of neck 4 cm above
sternoclevicular joint.
2] Multiple cut injury of sizes ranging 10 X 3 cm muscle deep to 5 X 1 cm
present over waist, buttock, back, hands and thighs.
3. Bruise Position size and nature :
Black stain is present around the margin around the injury.
4. Mark of ligature on neck dissection, etc. :
No ligature mark detected. Injury as describe.
II - Cranium and Spinal Canal
1. Scalp, Skull and Vertebrae : Scalp as describe Skull healthy
Vertebrae as described
2. Membrane : Healthy
3. Brain and spinal cord : brain semi liquefied Spinal cord not
examined
III - Thorax
1. Walis ribs and cartilages : As described. Rib and cartilage healthy
2. Pleurae : Healthy
3. Laryax and trachea : As described
4. Right lung
: Both lung partial decomposed
5. Left lung
6. Pericardium : Healthy
7. Heart : Healthy
8. Vessels : Healthy
IV - Abdomen
1. Walls : As described
2. Peritonoum : Healthy
3. Mouth, pharyanx, oesophagus : Partial decomposed
4. Stomach and its contents : Partial decomposed
5. Small intestine and its contents : Partial decomposed
6. Large intestine and its contents : Partial decomposed
7. Liver : Partial decomposed
8. Spleen : Partial decomposed
9. Kidneys : Both kidneys partial
decomposed
10. Bladder : Partial decomposed
11. Organs of generation
external and internal : Uterus healthy and empty
V - Muscles, Bones and Joints
1. Injury : As described
2. Disease or deformity : Not detected
3. Fracture : Not detected
4. Dislocation : Not detected
More detailed description of injury or disease
Opinion of Assistant Surgeon as to cause of death Sub-Assistant Surgeon
Death was due to injury sustained in the body. All injury antemortem and caused
by sharp cutting weapon.
Time since death 3-7 days.
Sessions Case no. 50/20 Sd/- Illegible
Ext. No. 1[1] [Dr. Manoj Majumdar]
Date 6.1.2021 Medical & health Officer - I
Sd/- Illegible Dr. Ravi Boro Civil Hospital, Mushalpur
Sessions Judge, Baksa Dist.-Baksa, BTAD [ASSAM]
22. Prior to the post-mortem examination, inquest proceeding was conducted and the
findings of the inquest proceeding was recorded in the Inquest Report[Ext.-2] by
the conducting Executive Magistrate & Circle Officer, Baksa Revenue Circle. In the
Inquest Report[Ext.-2], it was recorded that the inquest was held at 01-20 p.m. at
Village - No. 2 Shantipur on 20.05.2020. The dead body was shown and identified
by the accused and that it cut marks in neck, waist, buttocks, thighs, etc. were
recorded. P.W.6 testified that the inquest proceeding was done in his presence and
he exhibited the Inquest Report as Ext.-2 and identified his signature as Ext.-2[3].
23. The testimony of the I.O., P.W.11 was to the effect that when he was In-Charge of
Nikashi Out Post, Mushalpur Police Station, he received the FIR at about 10-00 a.m.
on 20.05.2020 from Amrit Brahma, P.W.2. After recording the FIR in the General
Diary Entry, he forwarded the same to the Officer In-Charge, Mushalpur Police
Station for registering a case. On being authorized by the Officer In-Charge,
Mushalpur Police Station, P.W.11 after recording the statement of the informant,
started preliminary investigation. After intimating the details about the occurrence
to the Officer In-Charge, Superintendent of Police and the District Magistrate,
Baksa, formal requisition was submitted to the District Magistrate for deputing a
Magistrate for disinterring the dead body and to conduct the inquest. Then, he
accompanied by the Officer In-Charge, Mushalpur Police Station and the Circle
Officer, Mushalpur Police Station proceeded to the P.O., that is, the house of the
accused in Village - No. 2 Shantipur and after reaching the P.O., he [P.W.1]
interrogated the accused in presence of public. P.W.11 testified that the accused
confessed before him that because of quarrel, he on the night of 14.05.2020,
committed the murder of his wife, Phishi Ramchiary inside his house by slashing her
with a Khukuri. It was further confessed before him that the dead body was buried
underground inside the house by digging. P.W.11 further stated that the accused
himself in presence of him, the other Police personnel, the Executive Magistrate and
the villagers including the Gaonburah, disinterred the dead body of his wife. The
disinterred dead body was found partially decomposed. P.W.11 also stated that
audio video recording was made of the entire proceeding. Thereafter, the inquest
was done by the Circle Officer, Mushalpur. P.W.11 stated that after disinterring the
dead body and before forwarding the dead body to Mushalpur Civil Hospital, the
accused was taken into custody by him. Prior to that, the accused brought out a
Khukuri from inside his house and handed over the Khukuri to him. Accordingly,
he seized the Khukuri in presence of witnesses vide Seizure List, Ext.-4 and P.W.11
identified his signature therein as Ext.-4[3]. P.W.11 also identified the signature of
the accused in Ext.-4 as Ext.-4[4]. P.W.11 also exhibited the FIR [Ext.-1]; the
Sketch Map of the P.O. [Ext.-5]; the Khukuri [Mat. Ext.-1]; the Inquest Report
[Ext.-2]; Charge-Sheet [Ext.-6]; and the Dead Body Challan [Ext.-3]. P.W.11 also
identified his signatures appearing therein. P.W.11 admitted that he did not send
the Khukuri, seized vide Ext.-4, to the Forensic Science Laboratory [FSL] for
serological examination.
24. During cross-examination, P.W.11 stated that it was the Gaonburah who, at first,
telephonically informed about the occurrence to him but he did not record the said
information in the General Diary. He further stated that he did not immediately
proceed to the P.O. after receiving such telephonic information. He proceeded to
the house of the accused at around 10-00 a.m. and the case was registered in the
Police Station at around 11-15 a.m. P.W.11 further stated that he recorded the
statement of the son of the accused, Charan Ramchiary, who was about 9 [nine]
years of age. The I.O., P.W.11 was asked by defence, by referring to parts of the
previous statements of P.W.2, P.W.4 and P.W.6 purportedly to bring out
contradictions that these witnesses did not give such previous statements, as they
had deposed before the court. But, the defence side did not follow the procedure
prescribed in Section 145, Evidence Act to prove and to bring such contractions on
record. The audio video recordings of the proceeding, Mat. Ext.-2 was put under
objection by the defence side.
25. From the evidence of the I.O., P.W.11, it is found that the testimony as regards the
sequence of events including the information given by the Gaonburah telephonically
at first; the institution of the FIR by the P.W.2; the confession made by the accused
before the Police personnel, the Executive Magistrate and the villagers after arrival
of the team of Police personnel and the Executive Magistrate at the P.O., that is,
the house of the accused; the disinterment of the dead body of the deceased by
the accused from inside his house; and handing over of the Khukuri by the accused
to the Police personnel; are found in conformity with the testimonies of the other
prosecution witnesses, already discussed hereinabove. The defence by way of
cross-examination did not elicit anything on the material points to dent the case of
the prosecution in any manner.
26. At this juncture, we turn to the testimony of Charan Ramchiary, the minor son of
the accused and the deceased, who testified as C.W.1. At the time of giving
testimony, C.W.1 was aged about 10 years. We find that in order to ascertain as to
whether he was capable to testify, the learned trial court asked a number of
questions to him for answer and on the basis of the answers given by C.W.1 in a
language understood by him, the learned trial court had found that C.W.1 was
capable to depose as he had given answers rationally to the questions put to him.
In his testimony, C.W.1 stated that his mother, Phishi Ramchiary had expired and
she was hacked by his father, that is, the accused in an incident which took place
inside their house in a night. C.W.1 further stated that on the night of the
occurrence, he was woken up by his father from his sleep. His father then asked
him to hold a torch. By flashing the torch and keeping it on the bed, his father
hacked his mother by a Khukuri. C.W.1 further stated that prior to hacking, he was
taken into lap by his mother. On being hacked, his mother screamed. After hacking
his mother, his father dug a ditch inside his house and buried her there. When
C.W.1 was further asked, he replied that after the incident, he fell asleep. In cross-
examination, C.W.1 stated that after the incident, he was questioned by Police and
as he could not understand Assamese, he could not say anything then. C.W.1
stated that once his mother left the house for about 2-3 days. When C.W.1 was
asked as to whether his parents quarreled with each other on the night of the
occurrence, C.W.1 replied to the effect that he was sleeping at that time and he
could not say as to whether any quarrel took place or not. But they quarreled for a
short while after her woke up on the night of the occurrence.
27. It is in the presence of the above evidence/materials on record, the respective
contentions advanced by the parties are required to be considered.
28. As the contestation is on the matter of extra-judicial confession, a reference to
Section 24 of the Evidence Act, 1872 is necessary. It is laid down in Section 24 of
the Evidence Act, 1872 that a confession made by an accused person is irrelevant in
a criminal proceeding, if the making of the confession appears to the Court to have
been caused by any inducement, threat or promise, having reference to the charge
against the accused person, proceeding from a person in authority and sufficient, in
the opinion of the Court, to give the accused person grounds, which would appear
to him reasonable, for supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings against him.
29. It is true that the extra-judicial confession is usually considered to be a weak piece
of evidence. Therefore, an extra-judicial confession must be accepted with great
care and caution. If it is not supported by other evidence on record and it fails to
inspire confidence, then it shall not be treated as a strong piece of evidence for the
purpose of arriving at the conclusion of guilt. There is, however, no absolute rule
that an extra-judicial confession can never be the basis of a conviction, although
ordinarily an extra-judicial confession should be corroborated by some other
material. To act on an extra-judicial confession, the Court is to be satisfied that the
confession was voluntary and was not the result of inducement, threat or promise
as contemplated by Section 24 of the Evidence Act, 1872. Furthermore, the extent
of acceptability of an extra-judicial confession depends on the trustworthiness of
the witness before whom it is given and the circumstances in which it was
given. The prosecution has the duty to establish that a confession was made by the
accused voluntarily and the confession which was made was true.
30. The evidentiary value of an extra-judicial confession came to be considered by the
Hon'ble Supreme Court of India in the case of State of Rajasthan vs. Raja Ram,
reported in [2003] 8 SCC 180. It has been held therein in the following manner :-
19. An extra-judicial confession, if voluntary and true and made in a fit state
of mind, can be relied upon by the court. The confession will have to be
proved like any other fact. The value of the evidence as to confession, like
any other evidence, depends upon the veracity of the witness to whom it has
been made. The value of the evidence as to the confession depends on the
reliability of the witness who gives the evidence. It is not open to any court to
start with a presumption that extra-judicial confession is a weak type of
evidence. It would depend on the nature of the circumstances, the time when
the confession was made and the credibility of the witnesses who speak to
such a confession. Such a confession can be relied upon and conviction can
be founded thereon if the evidence about the confession comes from the
mouth of witnesses who appear to be unbiased, not even remotely inimical
to the accused, and in respect of whom nothing is brought out which may
tend to indicate that he may have a motive of attributing an untruthful
statement to the accused, the words spoken to by the witness are clear,
unambiguous and unmistakably convey that the accused is the perpetrator
of the crime and nothing is omitted by the witness which may militate
against it. After subjecting the evidence of the witness to a rigorous test on
the touchstone of credibility, the extra-judicial confession can be accepted
and can be the basis of a conviction if it passes the test of credibility.
20. If the evidence relating to extra-judicial confession is found credible
after being tested on the touchstone of credibility and acceptability, it can
solely form the basis of conviction. The requirement of corroboration as
rightly submitted by the learned counsel for the respondent-accused, is a
matter of prudence and not an invariable rule of law.
31. Reverting back to the facts of the case in hand, it is found, as discussed
hereinabove, that the accused first made the confession before the P.W.3, the
Government Gaonburah of the village. The Government Gaonburah, P.W.3 is not an
inhabitant of the village of the accused and P.W.3 is an inhabitant of a nearby
village, Bhutankhuti. That the accused had gone to the house of the Government
Gaonburah [P.W.3] a functionary considered usually in higher esteem in rural areas,
to confess first instead of any other person is a relevant aspect. When P.W.3
testified as regards the confession made before him by the accused, such testimony
of the P.W.3 was never challengedin any manner whatsoever by the defence, much
less from the standpoint of any inducement, threat or promise. It is further
established from the testimonies of the other prosecution witnesses, as mentioned
hereinabove, the accused had confessed before the villagers, in presence of P.W.3,
once again by confessing that he had killed his wife by a Khukuri and after killing
his wife, he buried the dead body at a place inside his house. There is no evidence
to the effect that the accused prior to making of such confession by him, was
induced or threatened or promised in any manner by these villagers. The
Government Gaonburah, the village President or the villagers before whom the
accused made the confession twice, could not be termed as persons in authority to
give rise to a belief in the mind of the accused that by confessing before them, he
would gain any advantage or avoid any evil. Nothing has been brought on record by
the defence during the course of the trial to infer that the confession made by the
accused on the first two occasions were not voluntary in nature. The defence at no
point of time had attributed any element of animosity against these prosecution
witnesses. There is no evidence on record that any of these prosecution witnesses
had any prior enmity with the accused.
32. When the events stated to have been disclosed by the accused in his extra-judicial
confession are considered with the events unfolded during the subsequent period, it
becomes evident that there was truth in the extra-judicial confession. The evidence
of the prosecution witnesses and the I.O. that the accused had taken them to a
place inside the house and thereafter, disinterred the deadbody of his wife would
be admissible as conduct of the accused under Section 8 of the Evidence Act.
Another reason to deduce such a view emanates from the fact that the confession
made by the accused that he had killed his wife by a Khukuri is consistent with the
medical evidence, as testified by the Autopsy Doctor, P.W.1 and as emerged from
the PME Report [Ext.-1], that the injuries sustained by the deceased were caused
by a sharp cutting weapon. As per the Seizure List [Ext.-4], seizure was made of a
Nepali Khukuri, made of iron having a wooden handle of 18 inches in length. A
number of prosecution witnesses like P.W.2, P.W.3 & P.W.4 had testified that the
Khukuri, exhibited as Mat. Ext.-1, seized by Seizure List [Ext.-4] was the one which
was handed over to Police by the accused on 20.05.2020. The view that the
confession had the element of truthfulness is fortified by the fact that as per the
FIR[Ext.-1-A], the act of murder was committed on 14.05.2020 and the disclosure
was made on 20.05.2020 and the Autopsy Doctor in his testimony testified and in
the PME Report [Ext.-1] reported that the approx. time of death was 3 to 7 days
earlier.
33. Not sending the Khukuri for serological examination cannot be held to be a
circumstance to the benefit of the accused. The assault on the deceased was made
at a much earlier period, in and around 14.05.2020, and the Khukuri was handed
over by the accused to the Police only on 20.05.2020, almost ruling out the
possibility of finding any incriminatory evidence in the absence of any bloodstains
on it. The factum of recovery from a place inside the house of the deceased has
gone in conformity with the confession made by him before P.W.3 and others.
34. The object and purpose of examination of the accused under Section 313, CrPC is
to enable the accused to explain any circumstances appearing in the evidence
against him. The accused may or may not admit involvement or any incriminating
circumstance or may offer a version of his ownregarding the events. Any statement
made by the accused during his such examination, cannot form the sole basis of
conviction as the same is not a substantive piece of evidence. But, such statement
can be used to examine the veracity of the prosecution case and any inculpatory
aspect as may be borne from the statement may be used to lend credence to the
prosecution. When the accused was provided the opportunity to explain the
circumstance appearing in the evidence against him at the stage of examination
under Section 313, CrPC, the accused admitted that he confessed before P.W.2 that
he had committed the murder. At the same time, he stated that he did not commit
the murder. When he was asked to explain as to whether he had gone to the house
of P.W.3 and made the confession, as testified by P.W.3, the accused admitted that
he had gone to the house of P.W.3 and confessed before him that he had hacked
his wife. When the accused was asked to explain as to whether P.W.3 and he came
to the village and in presence of villagers too, he had confessed that he had killed
his wife. The accused stating the same to be false that a village mel was called
before the arrival of the Police, had admitted that when the villagers had gathered,
he admitted before them that he had killed his wife. The accused also admitted
about taking out the dead body of his wife by digging earth inside his house in
presence of villagers, the Executive Magistrate and the Police.
35. While making denial of few of the other incriminating circumstances, the accused
named three persons as the assailants of his wife. The accused also sought to
project that members of a political party, at the time of election held in April last,
got his wife drunk and committed bad act on her and thereafter, killed her. As is
evident from the PME Report [Ext.-1] and the testimony of the Autopsy Doctor
[P.W.1], the approx. time of death of the deceased was 3 to 7 days from
20.05.2020. In presence of such evidence, the projection of the accused that his
wife was killed by the members of political party in April is not only to be
disbelieved but it emerges as a false explanation. The other projection that the
three persons, named by him, had killed his wife also is not a believable one for the
reason that any husband if his wife was killed by other assailants, the husband
would have been the first person to bring the matter to the knowledge of the
Police. Not bringing such act of murder of his wife by other assailants for a period
of 3 to 7 days, taking cue from the PME Report [Ext.-1], is itself is not a normal
human conduct.
36. It is also settled law that a child witness if found competent to depose on the facts
and to be reliable one, his evidence could be the basis of conviction. Even in the
absence of oath, the evidence of a child witness can be considered under Section
118 of the Evidence Act, subject to the rider that such child witness is able to
understand the questions and able to give rational answers thereof. The evidence
of a child witness and the credibility depends upon the facts and circumstances of
each case. In State of Uttar Pradesh vs. Krishna Master, [2010] 12 SCC 324,
the Hon'ble Supreme Court has held that there is no principle of law that it is
inconceivable that a child of tender age would not be able to recapitulate the facts
in his memory. A child is always receptive to abnormal events which take place in
his life and would never forget those events for the rest of his life. The child may be
able to recapitulate carefully and exactly when asked about the same in the future.
In case the child explains the relevant events of the crime without improvements or
embellishments, and the same inspire confidence of the court, his deposition does
not require any corroboration whatsoever. The child at a tender age is incapable of
having any malice or ill-will against any person. Therefore, there must be
something on record to satisfy the court that something had gone wrong between
the date of incident and recording evidence of the child witness due to which the
witness wanted to implicate the accused falsely in a case of serious nature.
37. In State of Madhya Pradesh vs. Ramesh and another, reported in [2011] 4 SCC
786, on the test of acceptability of the testimony of a child witness, the following
have been observed :-
11. The evidence of a child must reveal that he was able to discern between
right and wrong and the court may find out from the cross-examination
whether the defence lawyer could bring anything to indicate that the child
could not differentiate between right and wrong. The court may ascertain his
suitability as a witness by putting questions to him and even if no such
questions had been put, it may be gathered from his evidence as to whether he
fully understood the implications of what he was saying and whether he stood
discredited in facing a stiff cross-examination. A child witness must be able to
understand the sanctity of giving evidence on oath and the import of the
questions that were being put to him.
* * * * * *
14. In view of the above, the law on the issue can be summarized to the effect
that the deposition of a child witness may require corroboration, but in case
his deposition inspires the confidence of the court and there is no
embellishment or improvement therein, the court may rely upon his evidence.
The evidence of a child witness must be evaluated more carefully with greater
circumspection because he is susceptible to tutoring. Only in case there is
evidence on record to show that a child has been tutored, the Court can reject
his statement partly or fully. However, an inference as to whether child has
been tutored or not, can be drawn from the contents of his deposition.
38. When by taking into consideration the above principles as to how testimony of a
child witness is to be appreciated the testimony of C.W.1 is examined, we find that
it was only after C.W.1 was found to be able to understand the questions put to
him and C.W.1 had provided rational answers to them, the learned trial court
reached the satisfaction as regards his suitability and competency to depose about
the events. When the C.W.1 was examined thereafter, by the prosecution and
cross-examined by the defence, C.W.1 who was aged about 10 years then, deposed
in a manner wherefrom it does not emerge that he was being taught in any manner
or influenced by any supervening event.
39. When the ocular evidence and the medical evidence, as mentioned above, led by
the prosecution in the case are considered in its entirety, we find that the extra-
judicial confession, made by the accused, on two occasions, prior to the advent of
the Police in the scenario were voluntary and true in nature; and it received
overwhelming corroboration on all the material points from other ocular evidence
and the documentary evidence. Notwithstanding the principle that the evidence of
even a child witness is sufficient to base a conclusion, and the testimony of C.W.1
in the case in hand is also found credible and trustworthy inspiring confidence of
the court, we find that the testimony of C.W.1 stood corroborated by the
testimonies of the other prosecution witnesses and the documentary evidence.
Having evaluated the evidence/materials on record in its entirety, we do not find
any infirmity in the finding reached by the learned trial court that the prosecution
has been able to prove the case beyond all reasonable doubts that it was the
accused alone who was the perpetrator of the crime of uxoricide. Finding no
reason, much less good and sufficient reason, to interfere with the Judgment and
Order of conviction and sentence passed by learned trial court, we are of the
unhesitant view that the instant criminal appeal is devoid of any merit and the same
deserves to be dismissed. Therefore, affirming the Judgment and Order dated
23.09.2021 of the learned trial court passed in Sessions Case no. 50 of 2020, the
instant criminal appeal is dismissed.
40. Before parting with the records, we wish to place our appreciation on record as
regards the services rendered by Ms. B. Chowdhury, learned Amicus Curiae
appearing for the accused-appellant and direct the Registry to make available to her
just remuneration as per the notified fee structure applicable to the Amicus Curiae.
41. Having regard to the fact that the deceased had left behind a minor child at the
time of her death, we reiterate the observations and the direction made by the
learned trial court as regards compensation to be made under Section 357A, CrPC.
We further observe that if the enquiry ordered by the learned trial court has not
been completed till date, such enquiry is to be completed with utmost expedition.
42. The records of the trial court are to be sent back forthwith.
JUDGE JUDGE
Comparing Assistant
