Gauhati High Court
Page No.# 1/15 vs The State Of Assam on 12 February, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/15
GAHC010088192020
2025:GAU-AS:1401
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/39/2020
RATNA BAHADUR CHETRI
TINSUKIA, ASSAM.
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 MRIDUL KUMAR KALITA
Advocate for the Appellant : Dr. BN Gogoi, Amicus Curiae
Advocate for the respondents : Ms. B. Bhuyan, APP, Assam
Date of hearing : 09.01.2025
Date of Judgment : 12.02.2025
Judgment & Order
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(S.K. Medhi, J.)
The present appeal has been preferred from jail against the judgment
and order of conviction dated 31.07.2019 passed by the learned Additional
Sessions Judge, Tinsukia in Sessions Case No. 54 (CH) 2018 under Section
302 Indian Penal Code, thereby sentencing the appellant to undergo RI for
life and fine of Rs.10,000/. (Rupees Ten Thousand) with default sentence
and to suffer further RI for one year.
2. The criminal law was set into motion by lodging of an ejahar on
19.03.2018 by one Sukraj Rai (PW1). It has been stated in the FIR that his
father Arjun Rai was killed by the appellant by assaulting him with a
bamboo lathi. Based on the aforesaid ejahar, the formal FIR was registered
and investigation was done leading to laying of a Charge Sheet. The
charges were accordingly framed by the learned Court and on its denial,
the trial had begun in which the prosecution had examined 7 nos. of
witnesses. The informant was examined as PW1, who had proved the FIR
as Exhibit 1 and also the bamboo stick as material Exhibit 1. In his cross-
examination, however, PW1 has clarified that he was not an eyewitness to
the incident.
3. PW2 is a person who claims to have known both the informant and
the accused. He stated that the appellant had confessed before him of
killing the deceased with a bamboo stick. He had also proved the material
Exhibit 1 wherein he had put his signature. The aspect of extrajudicial
confession was reiterated by PW2 even in the cross-examination. PW3, in
his deposition had stated that he saw the appellant sitting near the dead
body of the father of the informant. He has however stated that nobody
told him that the deceased was killed by the appellant.
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4. PW4 had stated that he was in a different village when he had got a
call and after coming back to the village he was informed by the people of
the village about the incident.
5. PW5 claims that he was with the informant at Tezu at the time of the
occurrence and he had accompanied the informant back to the village. He
has however stated that no one informed him who had killed the deceased.
6. PW6 is the doctor, who had conducted the post-mortem examination
upon the body of the deceased. According to the opinion rendered, the
death was caused "due to direct damage of gray matter of left hemisphere
causing respiratory distress". In his cross-examination, the doctor had
however deposed that the injuries of the external appearance may be
caused by falling on a hard substance.
7. PW7 is the Investigating Officer, who had done the investigation. He
had deposed that he had prepared the sketch map during the investigation,
recorded statements of the witnesses and collected materials. In his cross-
examination however, he has stated that neither PW2 nor PW3 had made
statements implicating the appellant with regard to any extrajudicial
confession. He had also replied in the cross-examination that he did not
submit any authority letter to cause the investigation. This sketch map was
however proved as Exhibit 4.
8. Upon completion of the PWs, the materials against the appellant
were placed before him in his examination under Section 313 of the CrPC.
Against the question no. 2, the appellant had however admitted that he
had told the PW2 regarding the involvement in the offence. Similarly,
against question no. 6, he admitted of having told the PW3 that his head
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was not working at that point of time.
9. Based on the aforesaid evidence and materials on record and after
the examination of the accused under Section 313 of the CrPC, the
impugned judgment has been passed which is the subject matter of
challenge in the present appeal.
10. We have heard Dr. B.N. Gogoi, learned Amicus Curiae appearing for
the appellant. We have also heard Ms. B. Bhuyan, learned Senior Counsel &
learned Additional Public Prosecutor, Assam appearing for the State
respondents assisted by Ms. R. Das, learned counsel.
11. Dr. Gogoi, the learned Amicus Curiae has submitted that the present
is a case where there is no direct evidence and the conviction is based on
circumstantial evidence. He submits that to sustain such a conviction, the
chain of circumstances has to be adequately proved without there being
any breaks. He has also submitted that the conclusion has to be reached
whereby the guilt of the accused appellant has to be proved beyond all
reasonable doubt and if any doubt arises, such conviction cannot be made.
12. Coming to the facts of the case, while reiterating that there is no
direct evidence in this case, the learned Amicus Curiae has submitted that
the sketch map (Exhibit 4) would reveal that on the north, there is one
Smti. Basmoti Shah and on the south there is one Shri Kamal Limbu. He
submits that neither of the aforesaid persons have been examined who
would have been the best witnesses in the present case. By drawing the
attention of this Court to the evidence of PW7 which is the doctor, the
learned Amicus Curiae has submitted that the opinion is not specific and it
cannot be said with certainty that the injuries were caused by an assault
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and such injuries are also possible if an individual falls on a hard substance.
13. Coming to the other witnesses, the learned Amicus Curiae has
submitted that PW2 had deposed that an extrajudicial confession was
allegedly made before him by the appellant. He has however pointed out
that such deposition has been contradicted by the deposition of PW7 who
had categorically refuted that any such statement was made during the
investigation. The learned Amicus Curiae has made a similar submission so
far as the deposition of PW3 is concerned that he had stated that the
appellant had said to him that his head did not work. It is submitted that
the PW7 in his deposition has clearly denied that the PW3 had indeed made
such a statement during the investigation. He submits that PW5 who stated
that he was along with the informant at Tezu had deposed that he came
back to the village Ambikapur whereas the place of occurrence has been
stated to be village at Nita Deori Gaon.
14. The learned Amicus Curiae has been critical about the role of PW7 as
the Investigating Officer. It is submitted that the said PW7 is an Assistant
Sub-Inspector who is not authorized to make an investigation of an offence
like that of murder. He submits that such authority is with the Inspector or
Sub-Inspector and only under compelling circumstances, an Assistant Sub-
Inspector may be authorized to make such an investigation which
admittedly has not been done in the instant case. The learned Amicus
Curiae has also submitted that though the weapon has been stated to be a
bamboo lathi, some of the witness has stated the same to be a bamboo
stick and there is a vast difference between a lathi and a stick. It is
submitted that though the same has been exhibited as material Exhibit No.
1, the same has not been sent for any forensic examination so as to
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connect the same as the weapon used in commission of the offence with
the appellant.
15. The learned Amicus Curiae, in support of his submission has relied
upon the case of Sattatiya @ Satish Rajanna Kartalla Vs. State of
Maharashtra reported in (2008) 3 SCC 210. In the said case, the earlier
cases mainly on circumstantial evidence have been discussed and the
following has been laid down-
"8. We have thoughtfully considered the entire matter. It is settled
law that an offence can be proved not only by direct evidence but
also by circumstantial evidence where there is no direct evidence.
The Court can draw an inference of guilt when all the incriminating
facts and circumstances are found to be totally incompatible with
the innocence of the accused. Of course, the circumstances from
which an inference as to the guilt is drawn have to be proved
beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances.
11. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4
SCC 116], it was held that the onus was on prosecution to prove
that the chain is complete and falsity or untenability of the defence
set up by the accused can be made basis for ignoring serious
infirmity or lacuna in the prosecution case. The Court then
proceeded to indicate conditions which must be fully established
before conviction can be based on circumstantial evidence. These
are:
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"(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.The circumstances
concerned must or should and not may be established,
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, should
not 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 consisted with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused."
12. In State of U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 861, it
was pointed out that great care must be taken evaluating
circumstantial evidence and if the evidence relied on is reasonably
capable of two inferences, the one favour of the accused must be
accepted. It was also pointed out that the circumstances relied upon
must be found have been fully established and the cumulative effect
of all the facts so established must be consistent only with the
hypothesis of guilt."
16. Per contra, Ms. Bhuyan, the learned Additional Public Prosecutor,
Assam has submitted that though the present case is one based on
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circumstantial evidence, the same, by itself cannot be a reason to interfere
with the impugned judgment. She has submitted that in the instant case
there are two extrajudicial confessions made before the PW2 and PW3 and
if those extra judicial confession are corroborated by other evidence, the
same can be the basis of a conviction. She has highlighted the aspect that
though the aforesaid extrajudicial confession has been found to be
contradicted in the evidence of PW7, against question nos. 2 and 6 in the
examination under Section 313 of the CrPC, the appellant has admitted of
the same. The learned Additional Public Prosecutor accordingly submits that
the conviction and sentence has been rightly directed which do not call for
any interference.
17. The rival submissions have been duly considered and the materials
including the LCR placed before this Court have been carefully examined.
18. Admittedly, the present is a case wherein there is no direct evidence
and the conviction and sentence are based on circumstantial evidence
mainly on the evidence of PW 2 and PW 3 who has deposed that
extrajudicial confession was made before them by the appellant. We have
however seen that the extrajudicial confessions allegedly made before PW 2
and PW 3 are clearly contradicted by PW 7 who had stated in clear terms
that no such statements of any extrajudicial confession was made by the
aforesaid witnesses in their statements made before the police in the
investigation. It is trite law that extrajudicial confession is a weak piece of
evidence and though the same can be one of the factors to be taken into
consideration, the same is necessarily required to be corroborated with
other cogent, trustworthy and credible evidence.
19. On the aspect of extra judicial confession, the Hon'ble Supreme Court
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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. ..."
20. 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
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
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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
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
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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 indepth 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
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.
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(iv). An extra-judicial confession attains greater credibility and
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."
21. In the instant case, the other evidence is of the doctor as PW 6 who
had stated that the injury has been caused by a blunt weapon. In his cross-
examination however, he has stated that the injuries can be caused even by
falling on a hard substance and therefore, we find force in the contention of
the learned Amicus Curiae that the medical evidence is not certain. We
have also found that PW 4 and PW 5 are hearsay witnesses. We have also
found that while the place of occurrence has been stated to be Nita Deori
Gaon, the evidence of PW 5 states that from Tezu they came to village
Ambikapur. In absence of materials to show that Nita Deori Gaon and
Ambikapur is the same village, there is an apparent inconsistency with
regard to the place of occurrence. We have also examined and found that
PW 3 simply said that he found the appellant sitting near the dead body.
However, he has also deposed that nobody told him that the appellant had
indeed killed the deceased. The mere fact that a person was found sitting
near the dead body in the village during daytime cannot be the sole factor
to come to a conclusion of guilt. As rightly pointed out by the learned
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Amicus Curiae, though the alleged weapon was exhibited as Material
Exhibit 1, there was no forensic test done to connect the same with the
appellant, as admittedly no fingerprints were taken or matched. We are
therefore of the view that there is no material to show that it was M
Material Exhibit 1 which was used as the weapon for commission of the
offence and the same was used by the appellant. Though the learned
Amicus Curiae has strenuously urged and raised the aspect of authority of
the ASI, PW7 to make the investigation, we are of the opinion that the
issue is not required to be gone into in the present case.
22. This brings us to the aspect of the answers given by the appellant to
question nos. 2 and 6 in his examination under Section 313 of the CrPC.
Against Sl. no. 2, the appellant had admitted that he had told the PW2
regarding his involvement and similarly in question no. 6, he had admitted
of making such a statement before PW3. Though the learned APP has
strenuously argued that the same would amount to an admission, we are of
the considered view that the response made in an examination under
Section 313 CrPC is only to give the appellant a scope to explain his role
and the same cannot be used as an implicating material against the same
said appellant. A statement under Section 313 CrPC is not made under oath
and cannot be regarded as evidence under Section 3 of the Indian Evidence
Act.
23. 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:
"19. Section 313 CrPC cannot be seen simply as a part of audi
alteram partem. It confers a valuable right upon an accused to
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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."
24. In any case, we have noticed that it is only the act of telling PW.2
and PW.7 (IO) regarding his involvement which will not per se amount to a
clear admission of the guilt.
25. In view of the aforesaid facts and circumstances, we are of the
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considered opinion that the materials in this case would not be sufficient to
come to a conclusion of guilt and that the same has been proved beyond all
reasonable doubt. We are of the opinion that the benefit of doubt is to be
given to the appellant. Accordingly, we set aside the impugned judgment
and order of conviction dated 31.07.2019 passed by the learned Additional
Sessions Judge, Tinsukia in Sessions Case No. 54 (CH) 2018 under Section
302 Indian Penal Code. The appellant is accordingly directed to be released
forthwith unless he is wanted in any other case.
26. Send back the LCRs.
27. For the valuable assistance rendered by Dr. B.N. Gogoi, the learned
Amicus Curiae, we record our appreciation and he would be entitled to the
prescribed fee.
JUDGE JUDGE
Comparing Assistant
