Gauhati High Court
Page No.# 1/16 vs The State Of Assam on 11 February, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/16
GAHC010097352020
2025:GAU-AS:1363
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/50/2020
RADHAN KHARAI
S/O. KHANDA PUNA, VILL. SARU AMALI, P.S. BAITHALANGSO, DIST.
KARBI ANGLONG.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : DR. B N GOGOI, AMICUS CURIAE,
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
HONOURABLE MR. JUSTICE K. SEMA
For the Appellant : Dr. B. N. Gogoi, Amicus Curiae
For the Respondents : Ms. S. Jahan, Addl. P.P, Assam
Date of Hearing : 23.01.2025
Date of Judgment : 11.02.2025
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JUDGMENT & ORDER
(S.K. Medhi, J)
The instant appeal has been preferred from jail against a judgment and
order dated 29.07.2019, passed by the learned Sessions Judge, Karbi Anglong,
Diphu, in Sessions Case No. 32/2003 (Old)/Sessions Case No. 83/2017(New)
corresponding to G.R. Case No. 23/2002 & Baithalangso Police Station Case No.
09/2002 under Section 302 IPC, by which the appellant was sentenced to
undergo Rigorous Imprisonment (RI) for life and to pay fine of Rs. 2,000/-
(Rupees Two Thousand) only in default further Simple Imprisonment (SI) for 6
(six) months.
2. The criminal law was set into motion by lodging of an Ejahar by the PW-4,
who is the brother of the deceased. The Ejahar which was lodged on
09.03.2002 had stated that on the previous evening at about 9 p.m. on
08.03.2002, the appellant had caused the death of his sister by severing the
head. The sister of the PW-4 was the wife of the appellant. He had also stated
that the appellant had suffered from mental illness. Based on the said Ejahar,
the formal F.I.R. was registered and investigation had begun leading to laying of
the Charge-sheet against the appellant.
3. The charges were accordingly framed and the appellant having pleaded
not guilty, the trial had begun in which, the prosecution had adduced evidence
through 5 (five) nos. of witnesses.
4. PW-1 is the doctor who had conducted the post-mortem on the dead body.
He opined that the death was caused by a sharp heavy weapon. The post-
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mortem report was proved as Exhibit-1.
5. PW-2 is a hearsay witness. He had stated that he heard about the incident
on the next morning and the appellant did not utter anything as to where the
severed head was thrown.
6. PW-3 is another hearsay witness, who is the brother of the informant. He
had also stated that he heard about the incident in the next morning from the
villagers. He has, however, deposed that the appellant had confessed of his guilt
in presence of villagers and himself.
7. PW-4 is the informant, who had proved the F.I.R. as Exhibit-2. He had
stated that while he was at his home, his niece Nipul Sagra had come and
informed that the appellant had hacked the deceased who was her mother. In
his cross-examination, he had stated that his house was at a distance of two
minutes from the place of occurrence.
8. PW-5 is the Investigating Officer (I.O), who had stated about the lodging of
the F.I.R., which was proved as Exhibit-2. He had also proved the Seizure List as
Exhibit-3. He had also deposed that one Rupram Kalita, since deceased, had
sent the appellant to record confessional statement. After closure of the
evidence of the prosecution, the materials against the appellant were put to him
in his examination under Section 313 of the Cr.P.C, wherein the appellant had
denied his involvement. However, with regard to Question No. 8, the appellant
had tried to give an explanation of alibi that on the fateful night, he was in his
farmhouse which was about 3 KMs away from his dwelling house. He had also
stated that he did not know who had killed the deceased and that he was falsely
implicated. The appellant had, however, declined to adduce any defence
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evidence.
9. Based on the aforesaid depositions and the materials on record, including
the exhibits, the learned Judge had passed the impugned judgment of
conviction and sentencing, which is the subject matter of the present appeal.
10. We have heard Dr. B.N. Gogoi, learned Amicus Curiae appearing for the
appellant and Ms. S. Jahan, learned Additional Public Prosecutor appearing for
the State of Assam.
11. Dr. Gogoi, the learned Amicus Curiae, has submitted that the materials on
record would not be sufficient to come to a conclusion of guilt. He has
submitted that there is admittedly no eyewitness in the aforesaid incident and
the only evidence which has been gathered by the prosecution is circumstantial
in nature. He has submitted that though the death has been caused by severing
the head of the deceased, there is nothing on record to implicate or connect the
appellant with the said offence. He has submitted that PW-2, PW-3 and PW-4
are all hearsay witnesses.Though PW-3 had stated that the appellant had
confessed in presence of the villagers and himself, such confession, even if
assumed to be made, is extrajudicial in nature which cannot be relied upon in
absence of any corroborating materials which are trustworthy and inspire
confidence. As regards the deposition of PW-4, the learned Amicus Curiae has
stated that while in his deposition he had named his niece as Nipul Sagra, in his
examination by the Police under Section 161 of the Cr.P.C., he had named his
niece as Malish.
12. As regards the aspect of the confessional statement which appears from
the deposition of PW-5, the learned Amicus Curiae has submitted that the
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records did not have any confessional statement which was proved. He has
informed this Court that based on the aforesaid material, a direction was given
by this court on 04.08.2023 to bring the confessional statement on board, which
was accordingly done by a Supplementary Paper-book. He, however, submits
that the so-called confessional statement is not a valid piece of evidence as the
same was never exhibited or proved.
13. The learned Amicus Curiae has submitted that in absence of any
eyewitness and to make out a case on the basis of circumstantial evidence,
proper investigation ought to have been made. He submits that though the
"Dao" in question was seized, there was no forensic test done on the said
weapon. He has submitted that there is nothing on record to show that there
were bloodstains on the "Dao" or that any serological test was done to connect
the blood samples with the deceased and the involvement of the appellant. He
has also submitted that the saucepan which was allegedly used, was not seized.
14. As regards the statement made by the appellant in his examination under
Section 313 of the Cr.P.C., the learned Amicus Curiae has submitted that the
appellant had taken up a defence of alibi which, however was not accepted
without any reasons. He has also pointed out to the part of the judgment in
paragraph-14, wherein the extrajudicial confession allegedly made by the
appellant has been accepted to be voluntary. He submits that in absence of any
corroborating materials, extrajudicial confession cannot be accepted as a valid
piece of evidence. The learned Amicus Curiae, accordingly submits that the
present is a fit case for interference by this Court and acquitting the appellant.
15. Per Contra, Ms. S. Jahan, the learned Additional Public Prosecutor, Assam,
has submitted that the evidence on record would be sufficient to come to a
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conclusion of guilt. She submits that the statement of PW-4 is reliable, who also
stated about presence of the appellant at the place of occurrence on the fateful
night. She has also highlighted the statement of the daughter of the appellant.
On the aspect of extrajudicial confession, the learned APP has submitted that
there was no cross-examination by the defence on the veracity of the same and
therefore, the learned Trial Court was justified in taking into consideration the
said extrajudicial confession. Coming to the evidence of PW-2, the learned APP
has submitted that the appellant did not answer the question with regard to the
severed head which was asked to him in his examination under section 313 of
the Cr.P.C. She submits that such circumstances would go against the appellant.
She has also highlighted that the appellant, in his explanation under the
aforesaid provision of law had made a false statement that he was away from
his dwelling house and was in a farmhouse. The learned APP, accordingly
submits that the appeal is liable to be dismissed as the conclusion reached by
the learned Trial Court is in accordance with law.
16. The rival contentions have been duly considered and the materials placed
on records, including the LCR have also been carefully examined.
17. In the instant case, admittedly there is no eyewitness and the prosecution
had adduced evidence through 5 (five) nos. of Prosecution Witnesses. Apart
from the official witnesses, namely, PW-1, who is the doctor and PW-5, who is
the I.O, the rest are witnesses who had deposed about the incident. However,
none of the aforesaid witnesses, namely, PW-2, PW-3 and PW-4 had actually
witnessed the incident and all of them are hearsay.
18. As regards the evidence of PW-3, who had also mentioned about an
extrajudicial confession made by the appellant in presence of the villagers and
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himself, this Court has checked with the original records which includes the
statement made under Section 161 of the Cr.P.C. before the Police and no such
statement appears to have been made by the PW-3 before the Police. Similarly,
PW-4 had named his niece as Nipul Sagra, who had allegedly come and
informed about the incident at his place. However, in his statement under
section 161 of the Cr.P.C., he had named his niece as Malish.In his cross-
examination, it also appears that his house is two minutes away from the house
of the appellant and when an incident of that magnitude had happened, it
would have been natural that he should have heard some hue and cry, which he
had not done.
19. As regards the deposition of PW-5, it appears that there is a statement that
the appellant was sent for recording his confessional statement and based on
the aforesaid evidence, this Court had also passed an order dated 04.08.2023 to
look into that aspect, pursuant to which, a Supplementary Paper-book has been
prepared. This Court has, however, carefully gone through the Supplementary
Paper-book and also compared the same with the original records. Though it
appears that a confessional statement was indeed made, the same was never
proved in the Trial. When the prosecution did not prove the same in the Trial by
giving the defence an opportunity to cross-examine, the aspect of having the
same as a valid piece of evidence would not arise. We are aware of the fact that
Section 80 of the Indian Evidence Act, dispenses of the requirement of proving
such a document by the learned Magistrate who had recorded the
same.However, such dispensation is only with regard to the Magistrate, who
may not come to depose but would not dispense with the requirement of
proving the same by any other competent witness who is conversant with the
aforesaid document and the aspect of the confessional statement. Therefore, for
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all practical purposes, the so-called confessional statement cannot be taken into
consideration at all.
20. We have also noted that as per the evidence of PW-1, the Doctor, for the
alleged offence, a sharp heavy weapon has been used and in this regard, a
"Dao"has been seized. However, there is nothing on record that any forensic
test was done on the "Dao" regarding fingerprints or anything else to connect
the same with the appellant and also, the fact that the same was used for
commission of the offence. There is nothing on record to suggest that the "Dao"
was seized with bloodstains or that any serological test was done to connect the
same with the offence and the deceased. We have also noticed that the
saucepan which was allegedly used for carrying the severed head was not
seized or produced.
21. Sofaras the explanation under Section 313 of the Cr.P.C. is concerned, the
appellant had tried to set up a plea of alibi by saying that on the fateful night he
was at his farmhouse. However, on the regard of adducingany evidence, he had
declined.A plea of alibi is not a general exception under Chapter IV of the IPC
and in any case, would be required to be proved by the defence by adducing
proper evidence. Though the standard of proof may not be beyond all
reasonable doubt and can be accepted even on preponderance of probabilities,
certain evidence is required to be adduced which has not been done in the
instant case. Therefore, the aspect of alibi cannot be taken into consideration.
22. That brings us to the aspect of the extrajudicial confession allegedly made
by the appellant before the PW-3. As noted above, on a verification with the
records including the statement made before the Police by the PW-3, under
Section 161 of the Cr.P.C., no such statement of making any extrajudicial
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confession was made. In any case, such extrajudicial confession is admittedly a
weak piece of evidence, which cannot be the sole basis of a conviction.
23. On the aspect of extrajudicial confession, the Hon'ble Supreme Court in the
case of S. Kaleeswaran vs. State of T.N., reported in AIR 2022 SC 5535, has
laid down as follows:
"8. ... Apart from the fact that the extra judicial confession is a very
weak piece of evidence, the High Court in the impugned judgment
had refused to rely upon the same on the ground that neither the
handwriting expert was examined nor any opinion of handwriting
expert was proved by the prosecution. It cannot be gainsaid that
when the extra judicial confession is not duly proved, or does not
inspire confidence or is not corroborated by any other reliable
evidence, the conviction could not be based solely on such weak
piece of evidence. ..."
24. The Hon'ble Supreme Court in a very recent case of Ramu Appa
Mahapatar vs. State of Maharashtra, decided on 04.02.2025 in Criminal
Appeal No. 608/2013, reported in 2025 SCC OnLine SC 233, has laid down as
follows:
"...17. In State of Rajasthan Vs. Raja Ram, this Court explained the
concept of extra-judicial confession. Confession may be divided into
two classes i.e. judicial and extra-judicial. Judicial confessions are
those which are made before a magistrate or a court in the course
of judicial proceedings. Extra-judicial confessions are those which
are made by the party elsewhere than before a magistrate or a
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court. Extra-judicial confessions are generally those that are made
by a party before a private individual who may be a judicial officer
also in his private capacity. As to extra-judicial confessions, two
questions arise: firstly, whether they are made voluntarily and
secondly, are they true? If the court is of the opinion that the
confession was not made voluntarily but was a result of an
inducement, threat or promise, it would not be acted upon. It
follows that a confession would be voluntary if it is made by the
accused in a fit state of mind and if it is not caused by any
inducement, threat or promise having reference to the charge
against him proceeding from a person in authority. Whether or not
the confession was voluntary would depend upon the facts and
circumstances of each case judged in the light of Section 24 of the
Indian Evidence Act, 1872. The law is clear that a confession cannot
be used against an accused person unless the court is satisfied that
it was voluntary. At that stage, the question whether it is true or
false does not arise. If the facts and circumstances surrounding the
making of a confession appear to cast a doubt on the veracity and
voluntariness of the confession, the court may refuse to act upon
the confession even if it is admissible in evidence. The question
whether a confession is voluntary or not is always a question of fact.
A free and voluntary confession is deserving of the highest credit
because it is presumed to flow from the highest sense of guilt.
17.1. 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
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as to confession like any other evidence depends upon the reliability
of the witness to whom it is made and who gives the evidence.
Extra-judicial confession can be relied upon and conviction can be
based thereon if the evidence about the confession comes from a
witness 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 by the
witness should be clear, unambiguous and unmistakenly convey that
the accused is the perpetrator of the crime and that 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.
17.2. 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 is a matter of prudence and not an
invariable rule of law.
19.2. Upon an in-depth analysis of judicial precedents, this Court in
Sahadevan (supra) summed up the principles which would make an
extra-judicial confession an admissible piece of evidence capable of
forming the basis of conviction of an accused:
(i). The extra-judicial confession is a weak evidence by itself. It has
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to be examined by the court with greater care and caution.
(ii). It should be made voluntarily and should be truthful.
(iii). It should inspire confidence.
(iv). An extra-judicial confession attains greater credibilityand
evidentiary value if it is supported by a chain of cogent
circumstances and is further corroborated by other prosecution
evidence.
(v) For an extra-judicial confession to be the basis of conviction, it
should not suffer from any material discrepancies and inherent
improbabilities.
(vi) Such statement essentially has to be proved like any other fact
and in accordance with law."
25. As regards the submission made on behalf of the State that in his
explanation under Section 313 of the Cr.P.C., a false answer was made by
stating that he was in the farmhouse on the fateful night, we are of the opinion
that a statement under Section 313 is only to give an accused, the scope to put
an explanation. The said statement is not under oath and therefore, it cannot be
the basis of a conviction. The statement may at best, be an additional link and
by no stretch of imagination, giving a false answer cannot lead to the
conviction.
26. The Hon'ble Supreme Court in the case of Reena Hajarika Vs. State of
Assam, reported in (2019) 13 SCC 289, has laid down as follows:
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"19. Section 313 CrPC cannot be seen simply as a part of audi
alteram partem. It confers a valuable right upon an accused to
establish his innocence and can well be considered beyond a
statutory right as a constitutional right to a fair trial under Article 21
of the Constitution, even if it is not to be considered as a piece of
substantive evidence, not being on oath under Section 313(2) CrPC.
The importance of this right has been considered time and again by
this Court, but it yet remains to be applied in practice as we shall
see presently in the discussion to follow. If the accused takes a
defence after the prosecution evidence is closed, under Section
313(1)(b) CrPC the Court is duty-bound under Section 313(4) CrPC
to consider the same. The mere use of the word "may" cannot be
held to confer a discretionary power on the court to consider or not
to consider such defence, since it constitutes a valuable right of an
accused for access to justice, and the likelihood of the prejudice that
may be caused thereby. Whether the defence is acceptable or not
and whether it is compatible or incompatible with the evidence
available, is an entirely different matter. If there has been no
consideration at all of the defence taken under Section 313 CrPC, in
the given facts of a case, the conviction may well stand vitiated. To
our mind, a solemn duty is cast on the court in dispensation of
justice to adequately consider the defence of the accused taken
under Section 313 CrPC and to either accept or reject the same for
reasons specified in writing."
27. In the conspectus of the aforesaid facts and circumstances and the
discussions made, we are of the opinion that the evidence on record which were
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gathered by the prosecution in the investigation would not be sufficient to come
to an inevitable conclusion of the guilt of the appellant and that nobody could
else was actually responsible for the offence.
28. In the celebrated case of Sharad Birdhichand Sarda vs. State of
Maharashtra, reported in (1984) 4 SCC 116, the Hon'ble Supreme Court has
held as follows:
"153. A close analysis of this decision would show that the following
conditions must fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.-
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may be'
established. There is not only a grammatical but a legal distinction
between 'may be proved and "must be or should be proved" as was
held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra where the following observations were made:
Certainly, it is a primary principle that the accused must be and not
merely may be guilty before a court can convict and the mental
distance between 'may be' and 'must be' is long and divides vague
conjectures from sure conclusions.
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should not
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be explainable on any other hypothesis except that the accused is
guilty.
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except the one to
be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence."
29. In the instant case, the chain of events is not complete and there are
missing links for which the appellant cannot be said to be guilty beyond all
reasonable doubt. Therefore, giving the benefit of doubt, we interfere with the
impugned judgment and order,dated 29.07.2019, passed by the learned
Sessions Judge, Karbi Anglong, Diphu, in Sessions Case No. 32/2003
(Old)/Sessions Case No. 83/2017(New) corresponding to G.R. Case No. 23/2002
& Baithalangso Police Station Case No. 09/2002, under Section 302 IPC and,
accordingly, acquit the appellant. He is accordingly, directed to be set at liberty
forthwith unless he is wanted in any other offence.
30. The appeal accordingly stands allowed.
31. Send back the LCR along with a copy of the judgement.
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32. Before we part, we record our appreciation for the learned Amicus Curiae
and recommend for payment of the prescribed fee.
JUDGE JUDGE
Comparing Assistant
