High Court of Meghalaya
Mulo Rakait vs . State Of Meghalaya on 23 February, 2024
Author: W. Diengdoh
Bench: W. Diengdoh
Serial Nos. 01-03
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. A. No. 6/2023 with
Crl. A. No. 7/2023
Crl. A. No. 8/2023
Date of order: 23.02.2024
Mulo Rakait vs. State of Meghalaya
Thum Rakait vs. State of Meghalaya
Ioolang Rakait vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice S. Vaidyanathan, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Appellants : Mr. K.S. Kynjing, Sr. Adv. with
Mr. K.S. Sunar, Adv.
Mr. G. Syngkrem, Adv.
Ms. B. Rapsang, Adv.
For the Respondent : Mr. N.D. Chullai, AAG with
Ms. R. Colney, GA
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
COMMON JUDGMENT
(Made by Hon'ble, the Chief Justice)
The Appellants, who are Accused persons in Sessions Case
No.77 of 2013 on the file of the District and Sessions Judge, West
Jaintia Hills District, Jowai, were convicted by the Trial Court for
offences under Sections 302/34 IPC as follows:
Sl.No. Offence Conviction and Sentence
1. Section 302 IPC To undergo Life Imprisonment
with a fine of Rs.15,000/- each and
the fine amount shall be paid to the
family members or close relatives
of the deceased victim.
The Trial Court held that the convicts are not entitled to the benefit of
Section 428 Cr.P.C., as they will have to undergo life imprisonment and
they were ordered to serve sentence in prison. Aggrieved by the order of
the District and Sessions Judge, West Jaintia Hills District, Jowai, dated
28.07.2022, the Appellants have preferred these Criminal Appeals
before this Court.
2. The case of the prosecution in brief is that based on the
complaint given by one Smti Sharbih Rakait on 11.07.2006 that her son
Shri Salong Rakait was murdered by the appellants along with Mut
Rakait and Dilip Chyrmang, a case in O.C. Jowai Police Station Case
No.81 (07) 06 under Sections 302/34 IPC came to be registered.
Immediately thereafter the case was entrusted to one C. Lamare, Sub
Inspector of Police, who, after a thorough investigation and examination
of witnesses, arrested the accused persons. The further case of the
prosecution is that the dead body was sent for post-mortem after
conducting inquest over the dead body. According to the prosecution,
all the accused persons pulled the deceased out of the house and
committed the crime during puja days.
3. After investigation, a charge sheet was laid before the Court of
the ADC, Jowai in C.S.No.86/06 dated 18.08.2006 and was
subsequently, made over to the District and Sessions Judge, West
Jaintia Hills District, Jowai for trial. The prosecution, in order to
substantiate the offences against the accused persons, has examined 8
witnesses, marked 8 documents and exhibited 3 Material Objects.
Statements under Section 164 Cr.P.C. were also obtained from the
accused persons. Though case was registered against five persons,
during trial, two of them, namely, Dilip Chyrmang and Mut Rakait had
expired and therefore, the case against them was abated. All the accused
were questioned under Section 313 Cr.P.C. and they denied the charges
levelled against them. The Trial Court, after analyzing the evidence let
in by the prosecution, found the three accused persons guilty of offences
and convicted them as stated supra.
4. The learned Senior Counsel appearing for the Appellants/
accused submitted that only based on the confession made by accused
persons, they have been convicted, that too, confession made was not
voluntarily, as there were no eyewitnesses to the occurrence. According
to him, Police personnel must give 24 hours' time to accused persons so
as to enable them to decide about confession and in this case, only a
time of two hours has been granted to them, which is not acceptable. He
further submitted that forensic examination was not done in this case
and seizure witness was a Police Officer (P.W.3), who cannot be termed
as an independent witness. He also submitted that the consequences of
giving confession statement had not been properly explained to accused
persons in the local language known to them. Learned Senior Counsel
for the accused, in support of his submission, strongly relied upon the
following judgments of the Hon'ble Supreme Court:
i) Shivappa vs. State of Karnataka, reported in (1995) 2 SCC 76,
wherein it has been held as follows:
"7. The Magistrate who is entrusted with the duty of
recording confession of an accused coming from police
custody or jail custody must appreciate his function in that
behalf as one of a judicial officer and he must apply his
judicial mind to ascertain and satisfy his conscience that the
statement the accused makes is not on account of any
extraneous influence on him. That indeed is the essence of
a 'voluntary' statement within the meaning of the
provisions of Section 164 Cr.P.C. and the Rules framed by
the High Court for the guidance of the subordinate courts.
Moreover, the Magistrate must not only be satisfied as to
the voluntary character of the statement, he should also
make and leave such material on the record in proof of
the compliance with the imperative requirements of the
statutory provisions, as would satisfy the court that sits in
judgment in the case, that the confessional statement was
made by the accused voluntarily and the statutory
provisions were strictly complied with."
ii) Rabindra Kumar Pal alias Dara Singh vs. Republic of India,
reported in AIR 2011 SC 1436;
"22. In Bhagwan Singh and Ors. v. State of M.P.
MANU/SC/0040/2003 : (2003) 3 SCC 21, while
considering these issues, it was held:
"27. ...The first precaution that a Judicial
Magistrate is required to take is to prevent forcible
extraction of confession by the prosecuting agency
(see State of U.P. v. Singhara Singh
MANU/SC/0082/1963 : AIR 1964 SC 358). It was
also held by this Court in the case of Shivappa v.
State of Karnataka MANU/SC/0189/1995 : (1995) 2
SCC 76 that the provisions of Section 164 Code of
Criminal Procedure must be complied with not only
in form, but in essence. Before proceeding to record
the confessional statement, a searching enquiry must
be made from the accused as to the custody from
which he was produced and the treatment he had been
receiving in such custody in order to ensure that there
is no scope for doubt of any sort of extraneous
influence proceeding from a source interested in the
prosecution.
28. It has also been held that the Magistrate in
particular should ask the accused as to why he wants
to make a statement which surely shall go against his
interest in the trial. He should be granted sufficient
time for reflection. He should also be assured of
protection from any sort of apprehended torture or
pressure from the police in case he declines to make a
confessional statement...
23. In Shivappa v. State of Karnataka
MANU/SC/0189/1995 : (1995) 2 SCC 76, while reiterating
the same principle it was held:
"6. From the plain language of Section 164 Code of
Criminal Procedure and the rules and guidelines framed
by the High Court regarding the recording of
confessional statements of an accused under Section
164 Code of Criminal Procedure, it is manifest that the
said provisions emphasise an inquiry by the Magistrate
to ascertain the voluntary nature of the confession. This
inquiry appears to be the most significant and an
important part of the duty of the Magistrate recording
the confessional statement of an accused under Section
164 Code of Criminal Procedure. The failure of the
Magistrate to put such questions from which he could
ascertain the voluntary nature of the confession detracts
so materially from the evidentiary value of the
confession of an accused that it would not be safe to act
upon the same...
....that during the time of reflection, he is
completely out of police influence. An accused should
particularly be asked the reason why he wants to make a
statement which would surely go against his self-
interest in course of the trial, even if he contrives
subsequently to retract the confession.."
24. In Dagdu and Ors. v. State of Maharashtra
MANU/SC/0086/1977 : (1977) 3 SCC 68, the following
paragraph is relevant:
"51. Learned Counsel appearing for the State is
right that the failure to comply with Section 164(3) of
the Criminal Procedure Code, or with the High Court
Circulars will not render the confessions inadmissible
in evidence. Relevancy and admissibility of evidence
have to be determined in accordance with the
provisions of the Evidence Act. Section 29 of that Act
lays down that if a confession is otherwise relevant it
does not become irrelevant merely because, inter alia,
the accused was not warned that he was not bound to
make it and the evidence of it might be given against
him. If, therefore, a confession does not violate any
one of the conditions operative under Sections 24 to
28 of the Evidence Act, it will be admissible in
evidence. But as in respect of any other admissible
evidence, oral or documentary, so in the case of
confessional statements which are otherwise
admissible, the Court has still to consider whether
they can be accepted as true. If the facts and
circumstances surrounding the making of a
confession appear to cast a doubt on the veracity or
voluntariness of the confession, the Court may refuse
to act upon the confession even if it is admissible in
evidence. That shows how important it is for the
Magistrate who records the confession to satisfy
himself by appropriate questioning of the confessing
accused, that the confession is true and voluntary. A
strict and faithful compliance with Section 164 of the
Code and with the instructions issued by the High
Court affords in a large measure the guarantee that the
confession is voluntary. The failure to observe the
safeguards prescribed therein are in practice
calculated to impair the evidentiary value of the
confessional statements."
iii) Sarwan Singh vs. The State of Punjab, reported in (1957)
SCR 953;
"There can be no doubt that when an accused person is
produced before the Magistrate by the investigating officer, it
is of utmost importance that the mind of the accused
person should be completely freed from any possible
influence of the police and the effective way of securing
such freedom from fear to the accused person is to send
him to jail custody and give him adequate time to
consider whether he should make a confession at all. It
would naturally be difficult to lay down any hard and fast
rule as to the time which should be allowed to an accused
person in any given case. However, speaking generally, it
would, we think, be reasonable to insist upon giving an
accused person at least 24 hours to decide whether or not
he should make a confession. Where there may be reason to
suspect that the accused has been persuaded or coerced to
make a confession, even longer period may have to be given
to him before his statement is recorded. In our opinion, in the
circumstances of this case it is impossible to accept the view
that enough time was given to the accused to think over the
matter."
iv) Aher Raja Khima vs. State of Sauratashtra, reported in AIR
1956 SC 217;
"14. Now the law is clear that a confession cannot be
used against an accused person unless the Court is satisfied
that it was voluntary and at that stage the question whether it
is true or false does not arise. It is abhorrent to our notions
of justice and fair play, and is also dangerous, to allow a
man to be convicted on the strength of a confession unless it
is made voluntarily and unless he realises that anything he
says may be used against him...
15. If the confession is excluded, then there is not, in
our opinion, sufficient evidence against the appellant on
which a conviction can be based."
v) Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey,
reported in AIR 2022 SC 5454;
"27. Thus from the aforesaid, it is evident that the
trial court is enjoined with the duty to apply its mind at the
time of framing of charge and should not act as a mere post
office. The endorsement on the charge sheet presented by
the police as it is without applying its mind and without
recording brief reasons in support of its opinion is not
countenanced by law. However, the material which is
required to be evaluated by the Court at the time of framing
charge should be the material which is produced and relied
upon by the prosecution. The sifting of such material is not
to be so meticulous as would render the exercise a mini trial
to find out the guilt or otherwise of the Accused. All that is
required at this stage is that the Court must be satisfied that
the evidence collected by the prosecution is sufficient to
presume that the Accused has committed an offence. Even a
strong suspicion would suffice. Undoubtedly, apart from the
material that is placed before the Court by the prosecution in
the shape of final report in terms of Section 173 of Code of
Criminal Procedure, the Court may also rely upon any other
evidence or material which is of sterling quality and has
direct bearing on the charge laid before it by the
prosecution."
5. It was further argued by the learned Senior Counsel for the
accused that the accused persons are poor and illiterates and the
witnesses produced on the side of the prosecution did not have the exact
knowledge of the occurrence except the fact that all the accused had
quarrelled with the deceased. It was his submission that even the wife of
the deceased, who was examined as P.W.4 stated that she was not aware
as to who murdered her husband. Moreover, the chain of event was
missing in this case, as there is no adequate evidence to link accused
persons with the alleged murder of the deceased. Thus, he pleaded that
there were several flaws committed by the prosecution and sought for
interference by this Court in the conviction and sentence awarded by the
Trial Court.
6. It was the case put forth by the learned Senior Counsel for the
appellants that admittedly, there was a disgruntlement between the
accused and the deceased and even on the date of occurrence, there was
an infuriation, which is evident from the reading of the depositions of
P.Ws.1 to 4 and therefore, the appellants had committed the offence
under grave and sudden provocation. The case squarely falls under first
exception to Section 300 of the Indian Penal Code and the appellants
ought not to have been convicted for the offence of murder under
Section 302 of the Indian Penal Code.
7. Per contra, learned Additional Advocate General appearing for
the State contended that based on the confession statement given by one
of the accused Mulo Rakait to Additional Deputy Commissioner
(Judicial), it is evident that due to previous enmity and to wreak
vengeance, the accused persons had committed the murder of the
deceased. It was clearly explained to the accused that the person who is
enquiring is not a Police Officer, but only a Magistrate. He further
contended that a question was put to the accused that "Even if you make
a confession you must know that you are not free or pardon, the law will
take its own course?" and the accused replied "Yes, I understand." For
the question posed by the Magistrate as to whether there was any torture
by the Police, it was stated by the accused that there was no torture. The
accused Mulo Rakait confessed that he along with other accused
persons pulled the deceased to the road and killed him with hammer,
stone and sticks and before recording his statement, he was informed in
local Pnar language about the implications of his voluntary confession
statement.
8. Learned Additional Advocate General appearing for the State
also contended that apart from Mulo Rakait, other accused had also not
denied the commission of offence and their statements were recorded by
the Magistrate in English Language. To strengthen his case that it is
sufficient that if the confession statement is substantiated by other
evidence, the accused can be convicted on the basis of such confession
statement, the following case laws were relied upon by him:
i) Madi Ganga vs. State of Orissa, reported in AIR (1981) 2 SCC
224;
"6. The final submission of the learned Counsel was that
even if the confession to the Magistrate was accepted as
voluntary it has not been sufficiently corroborated to justify
the conviction of the accused. It is now well settled that in
order to sustain a conviction on the basis of a confessional
statement it is sufficient that the general trend of the
confession is substantiated by some evidence which would
tally with the contents of the confession. General corroboration
is sufficient-vide Subramanian Goundan v. State of Madras
(1). In the present case the confessional statement refers to the
motive for the occurrence. This part of the confession is
corroborated by the evidence of P.W. 1. The confessional
statement refers to the accused having thrown a big stone on
the head of the deceased. This part of the statement is
corroborated by the medical evidence. We think that there was
sufficient general corroboration to justify the High Court
acting upon it. The appeal, is therefore dismissed."
ii) Shankaria vs. State of Rajasthan, reported in (1978) 3 SCC
435;
"39. It is true that the interval between the preliminary
examination of the appellant and the recording of his
confessional statement was about 15 minutes. But there is no
statutory provision in Section 164 Cr. P.C or elsewhere,
or even an executive direction issued by the High Court
that there should be an interval of 24 hours or more
between the preliminary questioning of the accused and
the recording of his confession. The condition precedent for
recording a confession by the Magistrate in the course of
Police investigation is provided in Section 164(2) Cr.P.C.
which mandates the Magistrate not to record any confession,
unless upon questioning the accused person making it, he has
reason to believe that it is being made voluntarily.
******
42. Although the interval between the preliminary
questioning of the appellant and his confession was about 15
minutes, the appellant had no less than 38 hours at his
disposal, whilst he was in judicial custody free from fear or
influence of the Police, to think and decide whether or not to
make a confession. As noticed already, the appellant was
brought from Ganganagar to Raisingh Nagar on June 12,
1974 because on that day no Magistrate competent to record
the confession of the appellant was available at Ganganagar.
The appellant was admitted to the Judicial Lock-Up Raising
Nagar under the orders of the Magistrate about or after 4 p.m.
on that date. Thereafter, the appellant continuously, remained
in the Judicial Lock-Up or judicial custody till his confession
was recorded on June 12, 1974 from 8.45 a.m. onwards. The
Magistrate, Shri Bansal was aware that the appellant was
continuously in judicial custody since the evening of June 12,
for about 38 or 40 hours preceding the confession.
49. A suggestion was put to Shri K. P. Srivastava in
cross-examination, that after the confession had been
recorded, the accused was taken to Hanumangarh and the
witness had accompanied him. The witness stoutly refuted
this suggestion that the custody of the accused was after the
confession, given to him or the investigating Police. He
however, affirmed that the accused was sent to the judicial
lock-up Hanumangarh. There was no good reason to
disbelieve the evidence H of the Magistrate P.W. 6) and the
Superintendent of Police (P.W. 22) to the effect that after
recording the confession, the custody of the accused was not
handed to the investigating police."
9. Learned Additional Advocate General went on to add that the
prosecution had clearly established the guilt of the accused through
testimonies about the overt act on the part of the appellants/accused and
their testimonies were corroborated with all material particulars. In sum
and substance, it was his submission that since the prosecution was able
to prove the guilt on the part of the appellants/accused beyond any
reasonable doubt and that the appellants/accused knowing pretty well
about the consequence of attack on the deceased with Hammer, attacked
him and hence, they are not entitled to any leniency and prayed for the
dismissal of these appeals.
10. We have carefully considered the submissions made on either
side and perused the materials available on record.
11. The questions that arise for consideration in this case, are:
(i) Whether the prosecution, through the testimonies of witnesses,
exhibits and material objects marked, is able to prove its case beyond
reasonable doubt?
(ii) Whether the reasons assigned by the trial Court in the impugned
judgment for convicting and sentencing the appellant/accused are
sustainable?
12. The main contention of the accused persons was that there
was no eyewitness produced by the Police to prove that it was accused,
who had done away with the life of the deceased and that the accused
were implicated in this case based on their own confession statement,
on the basis of which they cannot be made as a scapegoat. At this
juncture, we feel it appropriate to refer to as to what was the confession
statement of the accused and how the prosecution was able to link the
accused with the crime in corroboration with other evidence and
documents. On the side of the prosecution, there were eight
witnesses produced to prove the guilt of the accused and as per the
version of P.W.1, the deceased, who was the son of her cousin sister
visited her house for puja and at that time, there was a quarrel
between the deceased and the accused, as a result of which, the
deceased was pulled out of her house and attacked by the accused.
However, she was not aware as to who attacked / killed the deceased at
the first instance and her cross examination was declined. The version
of P.W.1 was reiterated by P.W.2 and P.W.3, out of whom, the
deceased was P.W.2's cousin brother and their cross examinations were
also declined. P.W.3 signed the seizure mahazar and confirmed that the
following articles / material objects were seized in his presence:
1) One big stone with blood stains on it;
2) One hammer with a small wooden handle length 2";
3) 11 Nos. of firewood (Pines and bamboo).
13. The next witness P.W.4, who was the wife of the deceased,
had deposed that she was not present at the scene of occurrence, as she
was looking after her new born baby and she was informed and she was
informed by her neighbour that her husband was murdered by accused
persons, who are all related to the deceased and her cross examination
was also declined. The other witnesses, namely, P.Ws.5 to 8 were
Police Officers, Doctor and Magistrate respectively and they had
briefed as to the progress of the case in each stage.
14. P.W.6 / Dr. Paitbha Syngkon had stated that the body of the
deceased was brought to the Civil Hospital, Jowai and Dr. G. Passah
had conducted the Post Mortem on the dead body at 2:30pm on
11.07.2006 and he was present during Post Mortem and in the opinion
of Dr.G.Passah, the cause of death was due to shock and haemorrhage
resulting from head injuries. P.W.6 had stated in his cross examination
as under:
"In my opinion the weapons used for such injuries are
blunt weapon like a hammer which is blunt and heavy and any
other blunt object."
As per the Post Mortem report, the injury was described as under:
"Head injury with injury to the brain was fatal and auto-
inative in nature."
15. Coming to the confession statements of the accused, among
five accused, four accused, namely, Thum Rakait, Mut Rakait, Mulo
Rakait and Ioolang Rakait, out of whom, Mut Rakait died during the
course of trial, voluntarily confessed in their 164 Cr.P.C. statements,
which are extracted hereunder:
Name of the accused 164 Statement
Thum Rakait After (L) Salong Rakait killed my mother and ran away 13 yrs ago
tried to find him but could not and give up. After few months
returned back to the village and we did nothing to him. When came
back he started drinking and cause trouble to us and always waited
to attack us whenever we go to work we had walk through the
garden of other people in the village. Whenever he was drunk he
was always after our family members. Once during our family rites
we thought of finishing him off because he came to our house to
create trouble. Then after that one night on 10.7.06 he tried to hurt
and beat my sister and we (myself, Mut, Iooland and Mulo) came of
the house and beat him up. We beat in front of our house by
hammer, stones and stick. We thought of finishing him off because
if he lives he will kill us all, so we kill him instantly by using these
materials available. After we called the Police. That's all sir.
Mut Rakait 13 years ago (L) Salong Rakait killed my elder aunt and we did
not do anything due to our customs but whenever he was
around we were afraid of him and most of the time we avoid
him and ran away. Last week during our family rites
performance he started to create trouble and we tolerate this.
But on the 10.07.06 night, he was drunk and started to shout at
us at one house and challenged us. Thereafter, we (myself,
Thum, Mulo and Iooland) came outside and beat him up and he
tried to run away. Then we hold him and hit him with sticks,
hammer and stones. We pull him to the road and beat him till
he was dead after that we went to the Police to report the
incident. That's all sir.
Mulo Rakait (L) Salong Rakait killed my mother when I was young about 13
years ago and we did not do anything because we were small and
we just forget it. But this man always picking up trouble with us
often when he was drunk but most of the time we avoid and ran
away. Last week during performance of family rites he came to our
house and started to create trouble and we thought of finishing him
off but the ladies did not allow us to do because of our family rites.
But again on 10.7.06 after he came from some body's house got
drunk and he came to our house and strated to threaten the sisters of
the house and at that moment we (myself, Mut, Thum and Iooland)
came of the house and beat him up. Then we pull him to the road
and killed him with sticks, stones and hammer. After that the ladies
went and report to the police and the police came and cover the
dead body. That's all sir.
Iooland Rakait It was last week during performance of our family rites, he (Lt
Salong Rakait) came to our house and started to create trouble and
he asked us to come outside to kill us all both big and small people
and also knock the door of his mother. Every time he always carry a
dao and road the village roads and looking for us and most of the
time we ran away and guard him. On the 10.7.06 after drinking and
come to our compound and call us and the ladies started to scream
and at that moment we came out of the house all the four of us
(myself, Mulo, Mut and Thum) and beat him up with sticks, stones
and hammer. Then we pull him to the road and killed him there.
That's all sir.
16. The provisions of Section 164 Cr.P.C. clearly contemplate as
to the manner in which a Magistrate should record the statement of
accused and this Court must ensure that such pre-conditions had been
followed by the Magistrate while recording the statement. Section 164
Cr.P.C. reads as follows:
"164. Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate
may, whether or not he has jurisdiction in the case, record
any confession or statement made to him in the course of an
investigation under this Chapter or under any other law for
the time being in force, or at any time afterwards before the
commencement of the inquiry or trial:
Provided that any confession or statement made under
this sub-Section may also be recorded by audio-video
electronic means in the presence of the advocate of the
person accused of an offence:
Provided further that no confession shall be recorded by a
police officer on whom any power of a Magistrate has been
conferred under any law for the time being in force
(2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not
bound to make a confession and that, if he does so, it may
be used as evidence against him; and the Magistrate shall
not record any such confession unless, upon questioning the
person making it, he has reason to believe that it is being
made voluntarily.
(3) If at any time before the confession is recorded, the
person appearing before the Magistrate states that he is not
willing to make the confession, the Magistrate shall not
authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the
manner provided in section 281 for recording the
examination of an accused person and shall be signed by the
person making the confession; and the Magistrate shall
make a memorandum at the foot of such record to the
following effect:
"I have explained to (name) that he is not bound to
make a confession and that, if he does so, any confession he
may make, may be used as evidence against him and I
believe that this confession was voluntarily made. It was
taken in my presence and was read over to the person
making it and admitted by him to be correct, and it contains
a full and true account of the statement made by him.
Signed A.B.
Magistrate."
(5) Any statement (other than a confession) made
under sub-section (1) shall be recorded in such manner
hereinafter provided for the recording of evidence as is, in
the opinion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have
power to administer oath to the person whose statement is
so recorded.
(5A) (a) In cases punishable under section 354, section
354A, section 354B, section 354C, section 354D, sub-
section (1) or sub-section (2) of section 376, [section 376A,
section 376AB, section 376B, section 376C, section 376D,
section 376DA, section 376DB,] [Inserted by Criminal Law
(Amendment) Act, 2013 ] section 376E or section 509 of the
Indian Penal Code, the Judicial Magistrate shall record the
statement of the person against whom such offence has been
committed in the manner prescribed in sub-section (5), as
soon as the commission of the offence is brought to the
notice of the police:
Provided that if the person making the statement is
temporarily or permanently mentally or physically disabled,
the Magistrate shall take the assistance of an interpreter or a
special educator in recording the statement:
Provided further that if the person making the
statement is temporarily or permanently mentally or
physically disabled, the statement made by the person, with
the assistance of an interpreter or a special educator, shall be
video-graphed.
(b) A statement recorded under clause (a) of a person,
who is temporarily or permanently mentally or physically
disabled, shall be considered a statement in lieu of
examination-in-chief, as specified in section 137 of the
Indian Evidence Act, 1872 such that the maker of the
statement can be cross-examined on such statement, without
the need for recording the same at the time of trial.]
(6) The Magistrate recording a confession or statement
under this section shall forward it to the Magistrate by
whom the case is to be inquired into or tried."
We are fully convinced with the recording of 164 statements by the
Magistrate, as there was no deviation from the conditions
adumbrated under Section 164 Cr.P.C.
17. P.W.6 / Dr.Paitbha Syngkon, who had commenced the
post-mortem at about 02.30 p.m., on 11.07.2006, had noted in his
Post Mortem Report dated 11.07.2006, which is marked as Ex.P.2
that the death would have been caused with heavy and blunt
objects. From the evidence of P.W.6, it could be visualized that the
deceased had died on account of head injury and not by any other
mode and thus, the depositions given by P.Ws.1 to 4 coupled with
the confession statements of the accused that they beat the deceased
with big stone, hammer and firewood (M.Os.I to III) were duly
proved / corroborated with the medical evidence.
18. The next plea canvassed by the learned Senior Counsel for the
appellants was that the appellants were not given sufficient time much
less 24 hours before obtaining confession statements from them, which
is contrary to the settled law. We emphasize here that there is no
hard and fast rule that accused must be given 24 hours of time. As
per the dictum laid down by the Supreme Court in the case (Shankaria
vs. State of Rajasthan), referred to by the learned Additional Advocate
General, it is a duty of the Magistrate to ensure that that accused
persons are freed from the possibility of influence by the Police by
giving adequate time to them and there is no necessity for the
Magistrate to wait for 24 hours and thereafter obtain 164 Cr.P.C.
statements from the accused. Therefore, the argument advanced to that
effect is not helpful to the appellants.
19. Yet another submission of the learned Senior Counsel for the
appellants was that there was no independent witness to speak about the
materials alleged to have been seized, as P.W.3, who had signed seizure
mahazar was a Police Officer. It is pertinent to mention here that
Section 102 Cr.P.C. does not prevent a Police Officer to seize the
property and the only perquisite condition is that after seizing of the
property, it must be informed / reported to his higher Officer. For the
sake of convenience, Section 102 Cr.P.C. is extracted hereunder:
102. Power of police officer to seize certain property.
"(1) Any police officer may seize any property which
may be alleged or suspected to have been stolen, or which may
be found under circumstances which create suspicion of the
commission of any offence.
(2) Such police officer, if subordinate to the officer-in-
charge of a police station, shall forthwith report the seizure to
that officer."
20. In all probabilities, we are of the view that the prosecution
has proved its case beyond reasonable doubt that the appellants had
committed the offence of murder. The Trial Court, by following the
dictum laid down by the Supreme Court in the case of Subramania
Goundan vs. State of Madras, reported in AIR 1958 SC 66, and upon
satisfying itself that even a retracted confession can be acted upon, had
imposed the punishment as stated supra. The only question before us
was as to whether the Court below in convicting the appellants to
undergo life imprisonment is justified or not.
21. At this juncture, the learned Senior Counsel for the
Appellants raised the alternative plea of culpable homicide not
amounting to murder and thereby attempted to bring this case under
Exception 1 to Section 300 IPC, so as to have the benefit of reduction of
punishment under Section 304 IPC. In order to substantiate the said
argument, the learned Senior Counsel brought to the notice of this Court
the verbal fights between the parties and due to grave and sudden
provocation they had caused the death of the deceased and therefore,
the appellants can be convicted for culpable homicide not amounting to
murder and sentenced under Section 304 (i) of the Indian Penal Code.
22. Admittedly, there was no direct eyewitness to the
occurrence, purely on account of which, but at the same time, the
entire case of the prosecution cannot be brushed aside. The evidence
of P.Ws. 1 to 3 clearly shows that it was the appellants, who pulled the
deceased out of the house and beaten him black and blue dark. On a
careful reading of the confession statements of the appellants, especially
Mulo Rakait, we are able to draw a picture that it was the deceased,
who invited the trouble by visiting the house of the accused persons and
causing hindrance to them during puja days, besides making ladies
scream, when they were busy with puja works. Moreover, the deceased
also cannot be termed to be a sacred person, as he had killed the mother
of one of the accused, namely, Thum Rakait. That apart, the deceased
was also in the habit of teasing accused persons, when they were not
grown up. It can be presumed that the act of the deceased could have
definitely developed a grudge against the accused persons, thereby the
continuous tease and other activities of the deceased have all along been
lingering in the minds of the appellants / accused, which, at one point of
time, burst out to lose their self-control and caused the death of the
deceased by attacking him with the material objects stated supra.
Though accused persons had an idea to finish off the life of the
deceased on account of their previous enmity with him, on the day of
occurrence, pursuant to the torture / provocation meted out at the hands
of the deceased / uttering abusing words by the deceased against them
by disturbing the puja celebrations, appellants were forced to respond to
the gesture of the deceased, which cannot be said to be voluntary in
nature, but only out of provocation. Therefore, we are satisfied that the
commission of the offence by the appellants squarely falls under the
provisions of Exception 1 of Section 300 owing to the existence of the
following ingredients:
All the accused had been provoked by the deceased.
Provocation happened suddenly.
All the accused had lost their self-control or controlling power,
which had resulted in the death of the deceased, who gave the
provocation.
All the accused caused the death during the continuance of
their deprivation of the power of self-control and they had no
malafide intention.
23. In the present case on hand, though the Trial Court had
elaborately discussed about the scope of application of Section 300 IPC,
it proceeded to convict the appellants on the basis of their own
confession statements coupled with the factum of seizure of material
objects, which brings trauma in our mind in confirming the conviction
inflicted upon them. Though the case against the appellants was tried
under Section 302/34 IPC, there was no whisper or discussion about the
imposition of punishment under Section 34 IPC, while convicting the
accused for the reason that Section 34 does not state a specific offence,
as it only lays down the rule of evidence, which is required to prove that
two or more persons were involved in the crime so as to bring it within
the ambit of common intention and each of them will be held jointly
liable and the punishment for this offence will be consistent with the
crime they committed.
24. For the foregoing discussions and on analysis of the entire
circumstances and evidence, we are convinced that the facts of the
present case falls under Exception 1 of Section 300 on the ground of
"sustained provocation" and consequently, it is a culpable homicide
not amounting to murder. Thus, in our considered opinion, the
conviction and sentence passed by the Court below requires
modification, as the facts of the present case clearly falls under
Exception 1 to Section 300 of the Indian Penal Code and therefore, the
appellants are convicted for "culpable homicide not amounting to
murder" and they are sentenced under Section 304 (I) of the Indian
Penal code, to undergo Rigorous Imprisonment for a period of ten
years.
25. The Apex Court in the case of Anbazhagan v. The State
Represented by the Inspector of Police, 2023 (10) SCALE 173: has
clearly distinguished the difference between the two parts of Section
304 of the IPC, which reads as under:
"46. ...We have noticed something in the aforesaid
observations made by this Court which, in our opinion, creates
some confusion. We have come across such observations in
many other decisions of this Court over and above the case of
Jagrup Singh (1981) 3 SCC 616. What we are trying to
highlight is that in Jagrup Singh (supra), although this Court
altered the conviction from Section 302 to Section 304 Part II,
it took shelter of Exception 4 to Section 300 of the IPC. The
question is, was there any need for the Court to take recourse
to Exception 4 to Section 300 of the IPC for the purpose of
altering the conviction from Section 302 to Section 304 Part II
of the IPC. We say so because there is fine difference between
the two parts of Section 304 of the IPC. Under the first part,
the crime of murder is first established and the accused is
then given the benefit of one of the exceptions to Section 300
of the IPC, while under the second part, the crime of murder
is never established at all. Therefore, for the purpose of
holding an accused guilty of the offence punishable under the
second part of Section 304 of the IPC, the accused need not
bring his case within one of the exceptions to Section 300 of
the IPC."
26. In the case on hand, the offence committed by the accused
persons had been duly established by the prosecution, which, in our
view, amounts to culpable homicide not amounting to murder, so as to
convict the appellants under Exception 1 to Section 300 of the Indian
Penal Code.
27. In the result, these Criminal Appeals are allowed in part and
the conviction and sentence passed by the Court below dated
28.07.2022 made in Sessions Case No.77/2023 by the District and
Sessions Judge, West Jaintia Hills District, Jowai is modified in respect
of Section 304 (I) of IPC to the extent that the Appellants shall undergo
Rigorous Imprisonment for ten years and to pay a fine of Rs.15,000/-
(Rupees Fifteen Thousand only) each, in default to undergo three
months Rigorous Imprisonment. As ordered by the Trial Court, the fine
amount shall be disbursed to the family members or close relatives of
the deceased victim, if not already paid. It is made clear that the
appellants shall be entitled for set off in accordance with Section 428 of
the Code of Criminal Procedure for the period of detention already
undergone by them.
(W.Diengdoh) (S.Vaidyanathan)
Judge Chief Justice
Meghalaya
23.02.2024
"Lam DR-PS"/"ar"
PRE-DELIVERY JUDGMENT IN
Crl.A.Nos.6, 7 & 8 of 2023
