1. The brief facts of the case of the prosecution is that on 29.08.2012, Shri Ranjit Patir and Shri Brojen Misong gave information before the Officer-in Charge Garmur Police Station, Majuli that some village people by apprehending Shri Rajkumar Doley, Shri Bornali Doley and their son Shri JituDoley for practicing witch-craft, took them to an unknown place and killed them. Upon receipt of the said information, same was entered vide GD Entry No.464/2012 dated 29.08.2012 and the incident was brought to the notice of the then Superintendent of Police, Jorhat. 2. Thereafter, the Investigating Officer set in motion the investigation of the case by visiting the house of the deceased persons at Borbheli Kankur Ghat where the deceased Rajkumar Doley used to go for fishing. Thereafter, the Investigating Officer made seizure of one SIM Card, one Nokia battery and one key pad mobile phone in broken condition in the presence of seizure witnesses Shri Prodip Pegu, Shri Kamal Payeng and Shri Nilomoni Pegu. Thereafter, the IO prepared a rough sketch map of the area and recorded statement of witnesses. The dead bodies of the deceased persons were searched in the river but the same could not be traced. 3. On 29.08.2012 Shri Santanu Doley lodged an Ejhar before the Officer in Charge Garmur P.S., Majuli, alleging that upon received an information that his father Shri Rajkumar Doley, his mother Smt. Bornali Doley and his younger brother Sri Jitu Doley @ JituDoley have been missing since 10 p.m. on 28.08.2012, he along with his maternal uncle came to his father‘s house at Luhit Chapori Village. After coming to the house of his father, the Complainant came to know from a reliable source that on 28.08.2012, at about 10 p.m., the accused persons Babulal Doley, Anil Doley, Monbang Doley, Nemai Doley, Janma Doley, Rajen Doley, Binuwa Doley and other 10-15 villagers of Luit Chapori village , Bordowa together in a planned manner abducted his father Shri Rajkumar Doley, his mother Smt. Bornali Doley and younger brother Shri Jitu Doley forcefully from their house suspecting them to be knowing magic and killed them on the bank of Luhit river and threw them into the river. 4. On the basis of the aforesaid Ejhar, Garmur P.S. Case No. 38/12, under Sections 302/201/143 of IPC and investigation was started. The investigating officer after completion of his investigation filed charge sheet against the present accused persons under Sections 109/302/201/143 of IPC to stand trial. 5. During the course of investigation, the investigating officer visited the place of occurrence, prepared sketch map of the same and recorded statement of witnesses and forwarded the accused persons after arresting them. Then on completion of his investigation, finding prima-facie involvement of the accused
PAGE NO. 3
persons in the instant offence, the IO filed charge sheet No.35/2012 dated 31.12.2012 against the accused persons to stand trial in the Court under Sections 302/201/143 of the IPC. On production, copies were furnished to the accused as per provisions of Section 207 CrPC. Thereafter, learned Sub-divisional Judicial Magistrate,(M), Majuli committed the case to the Court of Hon‘ble Sessions Judge, Jorhat for trial under Section 209 CrPC finding the offences against the accused persons to be exclusively triable by the Court of Sessions. After receiving the case record from the committal Court, the case was registered as Sessions case No.41/2013.
6. Thereafter, upon hearing on the point of consideration of charge and perusing the relevant materials as well as finding prima facie case against accused persons, the learned Sessions Judge, Jorhat, framed formal charge against the accused persons under Sections 364/302/201/143/149 of IPC. Particulars of accusation of the above charge on being read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. Thereafter, the case was transferred to this Court for disposal. 7. In order to bring home the charge against the accused persons, the prosecution side examined 18 witnesses. After completion of prosecution evidence, statement of the accused persons under Section 313 CrPC was recorded where they denied the allegations made against them. The accused declined to adduce any defence evidence in support of this case. 8. I have heard the argument advanced by the learned counsel for both the sides. I have also scrutinized the entire evidence of the witnesses as well as the relevant materials on record. 9. Smt. Mamoni Baruah, Learned Addl. PP argued for convicting the accused persons by submitting that the extra-judicial confessional statement of the accused persons made before the police leading to recovery has been proved and on the basis of circumstantial evidence , the case against the accused persons stands proved beyond reasonable dobut. 10. Per contra, Shri Bombeshwar Baruah, learned counsel for the accused persons argued that the prosecution is bound to prove its case beyond reasonable doubt with cogent evidence and out of the 18 witneeses examined by the prosecution to prove its case, PW-1 to PW-8 has said nothing about the incident, PW- 9, PW-10, PW-11, PW-12 and PW-13 are related to the deceased persons and PW-14 to PW-16 are declared hostile. He further argued that the blood seen by the police on the river bank was not preserved by the IO, there is dispute as to whether the dead bodies were thrown after cutting into pieces into Subansiri or Luhit River, the place of recovery is not clear whether it is the house of the accused Limai Doley or from the open area, there is contradiction in the number of seized weapon of the alleged offence and the recovered daos were not sent for forensic examination and there is no corpus delecti. Learned counsel further argued the confessional statement made by the accused persons is hit by the provision of Sectin 25 and Section 26 of the Indian Evidence and Section 27 of the Indian Evidence Act is not applicable. In short, the argument of learned Counsel for the accused persons can be summarized as under:
PAGE NO. 4
(a) The case of the prosecution it is based on surmises and conjectures and solely based on circumstantial evidence.
(b) There are material contradictions in the evidence of the witnesses.
(c) The disclosure statement is not admissible in evidence.
(d) There is no proof of corpus delicti, as the dead body could not be recovered.
(e) There is no evidence that the deceased were killed on suspicion of being witch.
(f) The accused persons have been falsely implicated in this case and they may be acquitted from the instant offences by giving them the benefit of doubt.
POINTS FOR DETERMINATION:-
11. The points for determination in this case is: -
―A. Whether the accused persons on or about 28.08.2012 at about 10 p.m., formed an unlawful assembly and in furtherance of the common object of the unlawful assembly used criminal force and abducted Raj Kumar Doley, Bornali Doley and Jitu Doley from their residence in order to murder them and thereby committed an offence punishable under Section 143 of IPC?‖
B. Whether the accused persons on or about 28.08.2012 at about 10 p.m formed an unlawful assembly and in furtherance of the common object of the unlawful assembly committed murder intentionally causing death of Raj Kumar Doley, Bornali Doley and Jitu Doley and thereby committed an offence punishable under Section 302 of IPC?‖
C. Whether the accused persons on or about 28.08.2012 at about 10 p.m formed an unlawful assembly and in furtherance of the common object of the unlawful assembly after committing murder of aforesaid persons namely Raj Kumar Doley, Bornali Doley and Jitu Doley caused disappearance of evidence of the commission of offence, and thereby committed an offence punishable under section 201 of IPC?‖
D. Whether the accused persons on or about 28.08.2012 at about 10 p.m formed an unlawful assembly and in furtherance of the common object of the unlawful assembly abducted aforesaid three persons namely Raj Kumar Doley, Bornali Doley and Jitu Doley, murdered the aforesaid three persons, caused disappearance of evidence and abetted, instigated the commission of the aforesaid offence and thereby committed an offence punishable under Section 364 of IPC?‖
DISCUSSION, DECISION AND REASONS THEREOF:
12. I have heard the argument advanced by the learned counsel for both sides and also perused the entire evidence available on record. Now let me
PAGE NO. 5
discuss the evidence on record to see as to whether the prosecution has been able to prove its case against the accused persons.
13. PW-1 Shri Prodip Pegu deposed that he knows all the accused persons. He also knows the untraced persons namely Raj Kumar Doley, Bornali Doley and their son. He is the VDP secretary of his village Borguli gaon. The incident of missing took place about two years back. On the subsequent day of the incident the O/C of Garmur P.S. and other police personnel came to their village in search of Raj Kumar Doley, Bornali Pegu and their son and informed that they were missing. He accompanied police in search of the aforesaid persons. He along with police went to the village where the incident took place and after going there he found that in the Borduwa village there were only female members present. They did not find any male persons in that village. After due search they did not find the persons and till now they are not traceable. He does not know whether those persons are alive or dead. During the search of the aforesaid persons, police found one Airtel Sim Card, one Nokia Battery and one Key pad from the Ghat (river bank) situated in between the two villages Borguli and Borduwa. Police seized the aforesaid articles and prepared seizure list. Exbt.1 is the seizure list and Exbt.1(1) is his signature. Material Exbt.1 is the Sim card, Material Exbt.2 is the Nokia Battery and Material Exbt.3 is the Key pad. He has seen all the material exhibits in the court today.
14. Defence declined to cross examine PW-1.
15. PW-2 Shri Kamal Ch. Tayung deposed that he knows some of the accused persons by name and others he knows by face but he does not know their names. He knew the untraced persons namely Raj Kumar Doley, Bornali Doley and their son. The incident of their missing took place in the last year. He came to know about the incident of missing of the aforesaid persons from police when they came to their village in search of the said missing persons. During the search of the aforesaid persons, police seized one Airtel Sim Card, one Nokia Battery and one Key pad (Material Exbt.1,2 & 3) from the Ghat (river bank) situated in between the two villages Borguli and Borduwa. Police seized the aforesaid articles and prepared seizure list. Exbt.1 is the seizure list and Exbt.1(2) is his signature. He does not know anything personally about the incident.
16. Defence declined to cross-examine PW-2.
17. PW-3 Shri Nilamani Pegu deposed that he knows all the accused persons. He also knows the untraced persons namely Raj Kumar Doley, Bornali Doley and their son. He had got a pharmacy. About 1 ½ years back at about 9 a.m. in the morning when he was going to open his shop then he saw huge number of police personnel coming to their village in search of missing persons of village Bordubi namely Raj Kumar Doley, Bormnali Doley and their son. He also accompanied the police personnel in their search. During the search of the aforesaid persons, police seized one Airtel Sim Card, one Nokia Battery and one Key pad (Material Exbt.1,2 & 3) from the Ghat (river bank) in between the two villages Borguli and Borduwa. Police seized the aforesaid articles and prepared seizure list. Exbt.1 is the seizure list and Exbt.1(3) is his signature. The missing persons could not be traced yet. He does not know why the persons went on missing. He does not anything personally about the incident.
18. Defence declined to cross-examine PW-3.
PAGE NO. 6
19. PW-4 Shri SoonJituMorang deposed that he is the secretary of Development Committee of Luhit Chapori village. He knows all the accused persons. All of them belong to his village. He knew the untraced persons namely Raj Kumar Doley, Bornali Doley and their son. His house is about 1 km away from the house of the aforesaid missing persons. About 1 year back, he heard that Raj Kumar Doley, his wife Bornali Doley and their child are missing from their house. Thereafter O/C, Garmur P.S. came to their village and searched the persons. Police inquired him about the incident. During search he also accompanied the police to the house of missing persons and also searched them throughout the village along with police but no trace of the missing persons were found and till date they cannot be traced out. He does not know how the aforesaid persons went missing.
20. Defence declined to cross-examine PW-4.
21. PW-5 Shri Ranjit Patir deposed that he is the village gaonburah of Luit chapori village. He knows all the accused persons. All of them belong to his village. He knew the untraced persons namely Raj Kumar Doley, Bornali Doley and their son. About 1 year back he got the information that their village people namely Raj Kumar Doley, Bornali Doley and their son went missing. Subsequently police after getting the said information came to their village and searched the persons throughout the village. During search he along with VDP secretary also accompanied the police to the house of missing persons and also searched them along with police throughout the village but during the search where-about of the aforesaid persons could not be traced out and till now the aforesaid persons are not traceable. He does not know how the aforesaid persons went missing. He does not know whether the aforesaid persons namely Raj Kumar Doley, his wife Bornali Doley and their son are alive or dead. Police during the search and investigation seized from the house of the aforesaid missing persons one piece of paper written by Bornali Doley, one exercise book, one Xerox copy of an agreement between Hemanta Doley and Kondorpa Hazarika in his presence and prepared a seizure list. Exbt.2 is the seizure list and Exbt. 2(1) is his signature. Material Exbt.4 is the piece of paper written by Bornali Doley, Material Exbt.5 is the exercise book, Material Exbt.6 is the Agreement paper.
22. Defence declined to cross-examine PW-5.
23. PW-6 Shri Brojen Missong deposed that he knows all the accused persons. They all belong to his village. He knows the untraced persons namely Raj Kumar Doley, Bornali Doley and their son. About 1 year back gaonburah of their village informed him that Raj Kumar Doley, Bornali Doley and their son went missing from their house. After getting the information he along with gaonburah went to the house of the aforesaid persons and did not find any one there. Thereafter, police came to their village and then he along with gaonburah again went to the house of the aforesaid missing persons. Police during the search and investigation seized from the house of Raj Kumar Doley one piece of paper written by Bornali Doley, one exercise book, one Xerox copy of an agreement between Hemanta Doley and Kondorpa Hazarika [Material Exbt. 4,5 & 6 respectively] in his presence and prepared a seizure list. Exbt.2 is the seizure list and Exbt.2(2) is his signature. Police searched the persons throughout the village but during the search where-about of the aforesaid persons could not be known and till now the aforesaid persons are not traceable. He does not know how and why the aforesaid persons went missing.
PAGE NO. 7
24. Defence declined to cross-examine PW-6.
25. PW-7 Shri Kanak Patir deposed that he knows the accused persons namely Shri Rajen Doley, Shri Anil Doley, Shri Limai Doley, Shri Atul Doley, Shri Biswa Patir @ Brinchi, Shri Bamun Doley, Shri Raju Doley, Shri Lakhindra Patir @ Loktai, Shri Jan Doley, Shri Pulin Doley and Shri Janama Doley @ Janma Doley who are present in the dock of the Court today. The incident occured about one year back. He also knows Bornali Doley, Raj Kumar Doley and their son. They belonged to Kanak Patir‘s village. He doesnot know where the aforesaid persons namely Bornali Doley, Raj Kumar Doley and their son had gone. They are not living in his village now. About one year back, the Officer-in-charge, Garmur P.S came to their village and asked him about Bornali Doley, Rajkumar Doley and their son and in search of them the police went to the house of the aforesaid missing persons. Kanak Patir alongside other village people accompanied the Officer-in-Charge, Garmur P.S to the house of missing persons namely Bornali Doley, Rajkumar Doley and their son. After going to the house of the aforesaid missing person alongwith the Officer-in-Charge, Garmur P.S they found none of the inmates in the house. The doors of the house were closed. He does not know anything about the incident. He doesnot know how the aforesaid persons namely Bornali Doley, Rajkumar Doley and their son went missing.
26. Defence declined to cross-examine PW-7.
27. PW-8 Shri Bipul Patir deposed that he knows the accused persons namely Sri Rajen Doley, Sri Anil Doley, Sri Limai Doley, Sri Atul Doley, Sri Biswa Patir @ Brinchi, Sri Bamun Doley, Sri Raju Doley, Sri Lakhindra Patir @ Loktai, Sri Jan Doley, Sri Pulin Doley and Sri Janama Doley @ Janma Doley who are present in the dock of the Court today. He also knew Bornali Doley, Raj Kumar Doley and their son. They belonged to Bipul Patir‘s village. For the last one year the aforesaid three persons namely Bornali Doley, Rajkumar Doley and their son are missing from their village. In connection of missing persons police made enquiry and they also helped police but the aforesaid three persons namely Bornali Doley, Rajkumar Doley and their son were not traced out till today. He does not know how and why the aforesaid three persons namely Bornali Doley, Rajkumar Doley and their son went missing. He went to the house of Bornali Doley, Rajkumar Doley and their son alongwith the Officer-in-Charge, Garmur P.S and other police personnel but there they did not find anyone. The doors of the house were found open. He does not know anything about the incident.
28. Defence declined to cross-examine PW-8.
29. PW-9 Shri Ajoy Pegu deposed that he knows accused Limai Doley and Anil Doley. He does not know the other accused persons standing in the dock. He knew the missing persons Rajkumar Doley, Bornali Doley and their son. Raj Kumar Doley was his maternal uncle and Bornali Doley was his aunt. On 28.8.12 the O/C, Garmur Police station informed him that the aforesaid persons went missing. After coming to know about the same he went to Garmur police station. And then along with police he went to the house of Rajkumar Doley and found the door of the house open and found all the persons in the house missing. From there he along with police went to the fishery which was owned by Rajkumar Doley. He noticed blood stain near the fishery and also found one SIM card lying over there. His elder brother Paban Pegu also accompanied them. When they went to Thana then the police informed them that the accused persons killed
PAGE NO. 8
Rajkumar Doley, Bornali Doley and their son. Police arrested all the accused persons. After two days of the incident police again called him to the police station and asked him to enquire from the accused persons that where they kept the dead body. Amongst them he can identify accused Limai Doley and Anil Doley. On being asked Limai Doley and Anil Doley told him that all of them have cut Raj kumar Doley, Bornali Doley and their son into pieces and threw them in Subonsiri river. Thereafter, police took two accused persons along with Limai to the Fishery. He also accompanied police to the fishery and after reaching the fishery accused Limai Doley produced one dao(kopi dao) from near the fishery in his presence which was kept by him and confessed before police that he along with Anil Doley and Atul Doley cut Raj Kumar Doley, Bornali Doley and their son in to pieces and thrown their dead body in to the river. Police seized the dao in his presence and then prepared seizure list. Exbt.3 is the seizure list and Exbt.3(1) is his signature. Material Exbt.7 is the dao(kopi dao). He had seen the dao in the court today. Accused Limai Doley produced another dao from near the fishery and police also seized the same. Exbt.4 is the seizure list and Exbt.4(1) is his signature. Material Exbt.8 is another dao. He had seen both the material Exhibits before the court today. During investigation police brought him before the Magistrate for recording his statement. Exbt.5 is his statement given before the Magistrate and Exbt.5(1) is his signature.
30. In his cross-examination, PW-9 denied that accused persons Atul Doley, Anil Doley and Limai Doley did not confess at the police station that they killed Raj Kumar Doley, Bornali Doley and their son and then cut in to pieces and threw them in the river. They confessed before him at the place of occurrence. He denied that I had a dispute with Limai Doley and Anil Doley. He denied that Limai Doley and Anil Doley did not confess before him that they killed Rajkumar Doley, Bornali Doley and their son with dao (the material Exbt.7 and 8) and threw them into river. He denied that accused Anil Doley and Limai Doley has not killed Rajkumar Doley, Bornali Doley and their son. He denied that he had deposed falsely. He denied that he had not gone to the place of occurrence with police along with the accused persons. He does not remember when police called him to the police station. When police informed him and called him to the police station during that time police did not arrest the accused persons. Police after arresting the accused persons again called him to the police station. When police called him to the police station the accused persons were in the police lock up. He cannot identify the other accused persons other than accused Limai Doley and Anil Doley. The O/C Garmur Police station asked him to make query to the accused persons in Mising language. Police took three persons from the lock up to the place of occurrence i.e. fishery which belongs to Raj Kumar Doley. Police did not take the accused persons to their home. Both the daos which were produced by the accused to the police in his presence were lying in open place near the fishery. He denied that accused Atul Doley did not produce the dao to police in his presence.
31. PW-10 Shri Paban Pegu deposed that he knows accused Limai Doley and Rajen Doley. He does not know the other accused persons standing in the dock. He knew the missing persons Rajkumar Doley, Bornali Doley and their son. They belonged to his village. About one year back O/C, Garmur Police station informed him that the aforesaid persons are killed by their village people. Accordingly he went to the police station and found the accused persons in the lock up. He can identify the accused Limai Doley. Police asked the accused persons before him that who killed the aforesaid missing persons. Then accused Limai Doley told that
PAGE NO. 9
all the accused persons along with him killed them with a dao and concealed it. Police took the accused Limai Doley along with other he does not know his name, to the place of occurrence i.e. Subonsiri River. He also accompanied police near the Subonsiri river. After going there they found that one dao was lying near Subonsiri river. The accused Limai Doley confessed before him that they cut Rajkumar Doley, Bornali Doley and their son in to pieces and threw them in the river. Police seized the dao (material exbt.7) in his presence near Subonsiri river. After seizure police prepared seizure list. Exbt.4 is the seizure list and Exbt.4(2) is his signature. He had seen the dao in the court today which was seized through Exbt.4.
32. In his cross-examination PW-10 stated that when police took the accused persons to the place of occurrence, he and Ajoy Pegu accompanied police to the place of occurrence, i.e, near Subonsiri river. He had not stated before police during investigation that police seized the dao from the place of occurrence. He had not stated before police that the accused Limai Doley in the police station stated that they have concealed the dao in the place of occurrence and they will show the dao to them. He denied that accused Limai Doley did not confess that the accused persons have cut Rajkumar Doley, Bornali Doley and their son into pieces. He put his signature in Exbt-4 in the police station. Handle of Material Exbt.7 is not covered by bamboo. He denied that material Exbt.7 is not the seized dao. He denied that the accused were taken by police to the place of occurrence. He denied that the accused did not show the dao in the place of occurrence. Rajkumar Doley was his maternal uncle and Bornali Doley was his aunt. He does not know where Ajoy Pegu put his signature in Exbt.3 and 4. He does not know the contents of the seizure list Exbt.4.
33. PW-11 Shri Gopinath Pegu deposed that he knows the accused Limai Doley. He does not know the other accused persons standing in the dock today. He saw all of them in Garmur P.S. He knows Rajkumar Doley, Bornali Doley and their son. Bornali was my sister. He is one of the ward members of the Serpai Gaon Panchayat. In the month of August in 2012 Garmur Police informed the Jengraimukh Police Station that Bornali Doley, Rajkumar Doley and their son have been killed. Jengraimukh Police after getting the said information informed about the same to him. He after getting the said information went to the Garmur P.S alongwith Jyoti Ram Doley, Anand Pegu and Ajoy Pegu. Thereafter, Garmur Police went alongwith them to the house of Rajkumar Doley and Bornali Doley. There he found the doors of the house opened and all the house hold articles were lying scattered inside the house. The locks of the almirah were open. Then he alongwith the police and the aforesaid persons went to the Fishery of Rajkumar Doley which is situated in the backside of his house. Near the fishery they found some blood stains and also found one SIM card lying near the fishery. Then after one week of the incident Garmur Police again called him to the police station. After going to the police station he saw all the accused persons, who are standing in the dock today, in the lock up. Police asked him to enquire about the incident in the ―missing‖ language to the accused persons. When he asked the accused persons how they killed the victims, then the accused Limai Doley and few others (standing in the dock today) told him that they killed Bornali Doley, Rajkumar Doley and their son into pieces and threw them into Subansiri river. After knowing about the same the police took Limai Doley and one more accused person to the Subansiri river. He also accompanied the police. There both the accused persons told to the police that they cut Rajkumar Doley, Bornali Doley and their son to pieces and thrown them into the river. There near the Subansiri
PAGE NO. 10
river police found one Mesi Dao (Machete). Thereafter, another accused person whom he could not recognise properly in the court today, produced one Kopi Dao (Machette) from his house, which is situated about 150 meters from the house of Rajkumar Doley. Both the accused persons told to the police that all the accused persons killed the aforesaid persons with the said Mesi Dao and Kopi Dao. Thereafter, police seized both the Daos (Machete) in his presence and took his signature in the seizure list. Exhibit 3 is the seizure list. Exhibit 3(1) is his signature. Through Exhibit 3 police seized the Kopi Dao (Machette). Material Exhibit 7 is the Kopi Dao and he has seen the same in the court today. Exhibit 4 is another seizure list vide which police seized the Mesi Dao (Machette) in his presence and took his signature. Exhibit 4(1) is his signature. During the investigation police brought him before the magistrate for recording his statement. Exhibit 6 is his statement before the Magistrate. Exhibit 6(1) is his signature on the statement.
34. In his cross examination PW-11 stated that he made query to the accused persons in the missing language at that time they were in the police lock up. He asked two persons in the lock up and only those persons answered my questions and others were listening to them. Police was also present there. Police took only those two persons who answered his questions, to the Subansiri river. One of them was Limai Doley. He denied that that he does not know that Bornali Doley, Rajkumar Doley and their son are killed or they are not alive. He denied that the accused persons have not killed Rajkumar Doley, Bornali Doley and their son. He denied that that Limai Doley and another accused did not tell before him that all of the accused persons killed the aforesaid persons into pieces. He stated that police seized one dao from near the Subansiri river i.e Lohit Chapori. He stated that police did not interrogate him. He denied that he has got any personal grudge against the accused Limai Doley. He denied that he has deposed falsely against the accused Limai Doley. He denied that police did not call him to the police station. He denied that the accused Limai Doley did not tell him that the accused persons killed Rajkumar Doley, Bornali Doley and their son. Police brought him before the magistrate from the police station. He denied that he deposed before the magistrate as per the instructions of police.
35. PW-12 Shri Jyotiram Doley deposed that he knows the accused Limai Doley and Rajen Doley. He does not know the other accused persons present in the dock today. He knows Rajkumar Doley, Bornali Doley and their son. On 29th August 2012, police of Jengraimukh P.S informed them that Rajkumar Doley, Barnali Doley and their young son JituDoley alias Jitu Doley has been killed. The said information was sent to Jengraimukh P.S through Garmur P.S. After getting the said information he went to the Garmur P.S. along with Gopinath Pegu and Ajay Pegu. Thereafter alongwith police they all went to the house Rajkumar Doley, Bornali Doley. Thereafter pushing the doors of the house they entered into their house and found all the articles scattered inside the house. He also noticed the mekhala of Bornali Doley lying in her house. Then he alongwith the police and aforesaid persons went to the fishery of Rajkumar Doley. There near fishery he noticed some blood stains and also found one SIM card lying near the fishery. Police accordingly seized the SIM card. Subsequently, police after 8 to 10 days arrested the accused persons and informed about the same to them. After getting the said information he alongwith Ajay Pegu and Gopinath Pegu went to Garmur P.S. There he saw all the accused persons in the police lock up. As the accused persons belong to the missing community therefore police asked them to make query to the accused persons in ―missing‖ language. Then he asked the
PAGE NO. 11
accused Limai Doley and Ranjan Doley about the incident. On being asked initially the accused persons were not willing to answer anything. But when they repeatedly asked them about the incident then the accused Limai Doley and Rajen Doley told them that all the accused persons have killed Rajkumar Doley, Barnali Doley and their son JituDoley into pieces and thrown them in the Subansiri river, as they suspected them to be witch (Daini). Both the aforesaid accused persons stated about the aforesaid fact before him, Gopinath Pegu and Ajay Pegu. During the investigation police brought him before the magistrate to record his statement. Exhibit 7 is his statement befor the magistrate and Exhibit 7(1) and Exhibit 7(2) are his signatures before the magistrate.
36. In his cross-examination PW-12 stated that about 10 days after the incident police brought him before the magistrate and accordingly magistrate recorded his statement. He denied that he has not stated before the magistrate that he had seen blood stains near the fishery. He stated that police did not collect blood stains from the fishery. He stated that Rajkumar Doley and Barnali Doley are his relatives. He denied that the accused Limai Doley and Rajen Doley did not tell before him that they have killed Rajkumar Doley, Bornali Doley and their son to pieces and thrown them into Subansiri river. He denied that he had deposed before the magistrate as per instructions of the police. He denied that the accused Limai Doley and Rajen Doley told him falsely that all of them killed the aforesaid persons. He stated that he asked the accused persons in the police lock up. He stated that there were about 10-12 persons inside the police lock up and when they put questions to the accused persons in the lock up then police was present there. He denied that the accused Limai Doley and Rajen Doley did not tell him that all the accused persons killed Rajkumar, Bornali and their son.
37. PW-13 Shri Santanu Doley deposed that deceased Rajkumar Doley, Bornali Doley and Jitu Doley were his father, mother and brother respectively. He is presently residing at his maternal uncle's home. Prior to the incident also he used to stay at his maternal uncle's home. On 28.08.2012, at about 12 noon when he was in his school i.e at Jengraimukh High School, his maternal uncle got information from police (Garmur) that his parents and brother went missing but his uncle didnot inform him the real incident and told him that his parents are sick and took him to the Garmur P.S and after going to the Garmur P.S he came to know that his parents are missing from their home. On the same day he alongwith the police and his maternal uncle went to his home and found the door of his home open. His mother, father and his brother all were missing from the home. He found godrej almirah open and all the things scattered in the house. All the accused persons have killed his family members out of jealously and killed them falsely alleging them to be Daini (witch). He further deposed that his mother Bornali Doley got a job in Anganwadi and due to the same the accused persons out of jealousy, claiming her to be Daini (witch) killed her, his father and brother. He deposed that the accused persons namely Babulal Doley, Rajen Doley, Anil Doley, Jamuna Doley, Baku Doley, Jan Doley, Atul Doley, Limai Doley, Pulin Doley, Lakhindar Patir @ Litikai falsely alleging his mother to be daini (witch) instigated the village people. As his mother got an appointment in Anganwadi, therefore the aforesaid persons out of jealousy claimed his mother to be daini (witch) and instigated the village people to beleive the same. Thereafter, all the accused persons falsely claiming his mother, father and brother to be daini (witch) killed them. After finding his parents missing, he lodged ejahar against the accused persons before Garmur P.S and their name is mentioned in the ejahar. Exhibit-8 is my ejahar. Exhibit-8(1) is his signature on the ejahar. The
PAGE NO. 12
ejahar was written by his maternal uncle Apang Pegu as per his instructions and after writing the ejahar, the same was read over to him by his uncle. During the investigation police came to his home at Bordua and from there police seized some piece of papers written by his mother, one stamped agreement paper and one exercise book in my presence. After seizing the aforesaid materials in my presence, police took my signature in the seizure list. Exhibit 2(3) is his signature on the seizure list. He had seen all the seized articles i.e paper written by his mother (Material Exhibit-4), exercise book (Material Exhibit 5) and stamped agreement paper (Material Exhibit -6) in the court today and have identified the same. Accused persons namely Limai Doley and Atul Doley confessed before the police in his presence that all of them have killed his mother, father and brother, the way a pig is butchered/killed.
38. In his cross-examination PW-13 denied that the accused persons have not killed my parents and brother. He denied that he has not written in his ejahar that the accused persons out of jealousy killed his parents as his mother got a job in Anganwadi. He denied that he has not stated before the police the name of the persons who instigated the village people claiming his mother to be daini (witch). He denied that he has deposed falsely. He denied that he is studying since his childhood by staying in his maternal uncle's house. He stated that he is staying in his maternal uncle's house since class IX (Nine). He denied that he does not know Limai Doley, Bakul Doley, Rajen Doley and Anil Doley.He denied that he has stated before the police that Apel Doley, S/O Monmong Doley in Nara Sikha festival after eating pork died at his own house. This He denied that he has written the names of the accused persons as per the direction of his maternal uncle. He denied that only Monmong Doley doubted his mother to be a daini (witch).He denied that Limai Doley, Bakul Doley, Rajen Doley and Anil Doley does not know Monmong Doley. He stated that Rajen Doley, Limai Doley, Anil Doley and Bakul Doley are his relatives. He denied that I stay in my maternal uncle's home since my childhood. He denied that he does not know that how was the relation between the accused persons with his parents. He denied that there was any sort of dispute regarding land and house between his parents and the accused persons namely Rajen Doley, Anil Doley, Limai Doley and Bakul Doley. He denied that I have lodged a false ejahar against the accused persons after finding my parents missing. He denied that he has not stated before the police the name of Anil Doley, Limai Doley, Rajen Doley and Bakul Doley being involved in the murder of his parents. He denied that he has not stated before the police that the accused Limai Doley confessed before him that they have killed his parents and brother like a pig and butchered. He denied that he does not know that his parents and brother are not alive. He stated that he have come to the court along with his maternal uncle to depose before the court. He denied that he has deposed as per the instruction of his maternal uncle, before the court today. He denied that the accused persons namely Anil Doley, Limai Doley, Rajen Doley, Bakul Doley and others have not killed his parents and his brother.
39. PW-14 Shri Amar Ch. Kuli deposed that he knows all the accused persons standing in the dock namely Limai Doley Atul Doley, Janma Doley, Raju Doley, Anil Doley, Rajen Doley, Boku Doley and Pulin Doley, He also knows the other accused persons standing in the dock but he had forgotten the name of the remaining accused persons. He knew the missing persons Rajkumar Doley, Bornali Doley and their son Jitu Doley. Jitu Doley was his student. About two years back he came to know from the village people that some police personnel came in search of the missing persons Raj Kr. Doley, Bornali Doley and their son
PAGE NO. 13
Jitu Doley. When the police personnel came to their village then only he came to know about the missing of the aforesaid persons. Police during the investigation interrogated him and during interrogation he stated that he does not know anything about the incident.
40. PW-14 was declared hostile on prayer made by the prosecution and in his cross-examination by prosecution PW-14 denied that he had stated before the police that Raj Kumar Doley and Bornali Doley used some abusive language against some boys due to which the aggrieved boys killed Raj Kr. Doley, Bornali Doley and their son Jitu Doley at night. He denied that he had stated before the police that he came to know about the same secretly that Limai Doley, Boku Doley, Biswa Patir, Bamun Doley and Jan Doley are involved in the killing of the aforesaid persons. He denied that he has stated before the police that when police interrogated the aforesaid persons they told that they killed Raj Kr. Doley, Bornali Doley and their son Jitu Doley and after killing them chopped them into pieces and threw them into Luhit River. The dead body of the missing persons are still not found. Most of the accused persons are his students. He denied that to save the accused persons he has deposed falsely. He denied that he has concealed the truth and deposed today by concealing the truth.
41. In cross-examination PW-14 stated that he does not have any relation with the accused persons. He has not given any statement before the police. He does not know if Raj Kumar Doley, Bornali Doley and Jitu Doley are alive. He heard that the aforesaid persons are killed by some persons. But he does not know who killed them. He used to stay in a different village. He has not deposed falsely today in favour of the accused persons. He does not feel happy about the missing of Raj Kumar Doley, Bornali Doley and their son Jitu Doley. He does not know whether the aforesaid persons are killed or went missing. When police came in search of the aforesaid persons he did not accompany the police in their search. He has not deposed today to save the accused persons. He had only heard that Raj Kr. Doley, Bornali Doley and their son Jitu Doley went missing. He had not heard anything further.
42. PW-15 Smt. Jyotsua Doley deposed that she does not know any of the accused persons standing in the dock. She didnot know Barnali Doley, Rajkumar Doley or their son. She also does not know the complainant Santanu Doley. About two or three years back she went to Garmur P.S after hearing about some witch hunting. She alongwith few other women went to the police station at 7.00 pm, after going there, she found few people in the lock up and few people sitting outside the lock up. There in the police station Officer-in-Charge asked her to translate the words said by the persons whom she found in the police lock up and outside the lock up. The Officer-in-Charge was putting questions to the persons in the lock up and they were answering in missing language. She translated the answers of the persons in the lock up in assamese language. She does not know how many persons were there in the police station on that particular day. She does not remember what answers were given by those persons.
43. PW-15 was declared hostile on prayer made by the Prosecution. In her cross-examination by the prosecution PW-15 denied that she stated before the police that persons in the lock up told her in missing language that they cut Barnali Doley, Rajkumar Doley and their son Jitu Doley into pieces and threw them in the Lohit river on suspecting them to be witch. She denied that she
PAGE NO. 14
stated to the police that the persons told her in missing language that cows, goats and other animals used to run away by seeing Rajkumar Doley and Bornali Doley. She denied that she stated to the police that the persons told to her that there was dispute between Rajkumar Doley and his elder brother. She denied that she stated to the police that the persons told to her that they killed the son of Rajkumar and Bornali Doley so that he does not become witness in future. She denied that she remembers the answers given by those persons. She stated that she does not know any of the persons and cannot identify any of the persons standing in the dock today. She denied that she has deposed falsely in favour of the accused persons.
44. In his cross-examination of behalf of the accused , PW-15 stated that the persons whom she saw in the police lock up cannot be identified by her. She stated that she cannot say whether the persons whom she saw in the lock up are the same persons standing in the dock today. She stated that police did not read over to her the answers translated by her. She stated that she does not remember any words said by those persons on the said particular day, in the police lock up.
45. PW-16 Shri Prafulla Boruah deposed in his evidence that he does not know any of the persons standing in the dock. He also does not know Raj Kumar Doley, Bornali Doley and Jitul Doley. About 1 ½ years back he came to Garmur police station in connection with some case. During then O/C, Garmur police station showed him some persons in the police station who were brought in connection with case of Witch hunting and asked him whether he can identify them but he could not identify any of the persons. He cannot say what sort of interrogation was made to the said persons by the O/C.
46. PW-16 was declared hostile on prayer made by the prosecution and in his cross-examination by the prosecution, PW-16 denied that he has stated before the police that on 05.09.12 from the evening bulletin of News Live and other sources he came to know that Garmur police arrested some persons in connection with witch hunting, then he went to the police station to see the persons. He denied that he has stated before the police that when he arrived at the police station he found police to interrogate Nemai Doley, Pulin Doley, Atul Doley, Jan Doley, Boku Doley, Dinesh Doley, Monesh Doley, Bamun Doley, Ghana Kanta Doley, and Raju Doley. He denied that he stated before the police that when police interrogated the persons, they stated that they have killed Raj Kumar Doley, Bornali Doley and their son Jitu Doley of Luhit Chapori Village on 28.08.12 on suspicion of witch craft. He has not stated to the police that the aforesaid persons stated in his presence that they cut the dead body of the aforesaid persons in pieces and threw them into the Luhit river. He denied that he has stated before the police that when he personally interrogated the aforesaid persons they told to him that they cut Bornali Doley, Raj Kumar Doley and their son Jitu Doley into pieces and threw them into the river. He denied that he has stated before the police that he will depose the aforesaid facts before the court. He denied that he knows the aforesaid persons standing in the dock. He denied that he gave false evidence before the court today to save the accused persons. He denied that he came along with accused persons to the court today. He denied that he deposed as per instructions of the accused persons. He denied that he knew Raj Kumar Doley, Bornali Doley and their son Jitu Doley.
PAGE NO. 15
47. In his cross-examination on behalf of the accused, PW-16 stated that he came to know about some witch hunting at Luhit Chapori Village from news paper and television. The place of occurrence is 26/27 km., away from his home. He does not know residents of Luhit Chapori Village. When police brought some persons which were involved with the witch hunting case to the police station lot of people gathered in the police station. He did not know any of the persons whom police brought in connection with witch hunting case. On the relevant day, he along with Putul Saikia went to Garmur police station but as police brought some persons in connection with witch hunting case and as there was huge crowd in the police station therefore, police asked them to come later and send us back. He does not know what sort of interrogation was done by the police to the persons in connection with witch hunting case. He has not made any false deposition before the court today. He has not given any statement before the police.
48. PW-17 Shri Damudar Barman deposed that on 04.11.12 while he was working as Executive Magistrate, Majuli, went along with police officer of Garmur police Station and accused Biswa Patir went to Lower Subonsiri Luhit Chapori in connection with witch hunting case. After going to the said place police officer prepared sketch map of the place of occurrence as being shown by accused Biswa Patir in his presence. Ext.9 is sketch map and Ext.9(1) is my signature. The accused Biswa Patir stated that the place mentioned in the sketch map is the place where he along with other accused persons thrown away the dead body of the persons who were killed by them.
49. In cross-examination PW-17 stated that in the sketch map, it is not mentioned that accused Biswa Patir showed the said place of occurrence. He denied that the accused Biswa Patir did not show the place of occurrence as being shown in the sketch map. They were not accompanied with any village people. When the sketch map was drawn some village people were there at distance. He does not remember from where the accused Biswa Patir was taken along with police to the place of occurrence.
50. PW-18 Shri Deben Ch. Nath, S.I deposed that on 29.08.2012 he was working at Garmur P.S, Majuli as officer in charge. On that day, Ranjit Patir and Brojen Misong gave verbal information that some village people by apprehending Rajkumar Doley, Bornali Doley and their son JituDoley to be witch, took them to unknown place and killed them. After receiving the said information, the same was entered vide GD entry no. 464 dated 29.08.12. Exhibit 10 is the extract copy of GD entry no. 464 dated 29.08.12 and Exhibit 10(1) and Exhibit 10(2) are his signatures. After getting the said information he informed about the said fact to the Superintendent of Police, Jorhat. Thereafter, he along with S.I Nokul Das, S.I Hemen Singh, CRPF personnel and APBN staff went to the home of Rajkumar Doley but after going there search could not be made properly as it got late at night. From the village people, he came to know that Rajkumar Doley always used to go to Borbheli Kankur Ghat to catch fish therefore he went to the aforesaid place and after going there he found some blood stain over there which was tried to be removed by pouring water but was not totally removed. He also found one SIM card being number 9954618953, one Nokia battery and one Key pad of mobile phone in broken condition over there and seized the same in presence of witnesses, namely Prodip Pegu, Kamal Payeng and NiloJituPegu. Exhibit 1 is the seizure list and Exhibit 1(4) is his signature. Material Exhibit 1 is the SIM Card, material Exhibit 2 is nokia battery and material Exhibit 3 is the key
PAGE NO. 16
pad of mobile phone which he has seen before the court today. Thereafter, he prepared a sketch map of the aforesaid place. Exhibit 11 is the sketch map and Exhibit 11(1) is his signature. He recorded the statement of the witnesses and from the statement of the witnesses he came to know that the accused persons killed Rajkumar Doley, his wife Bornali Doley and their son Jitu Doley at the aforesaid place by taking them near to the Luhit river bank and also came to know that after killing them the dead body of the aforesaid persons were cut into pieces and were thrown away at Luhit river. The dead body of the aforesaid persons were duly searched but failed to find them out. On 29.08.2012, Santanu Doley, son of deceased Rajkumar Doley lodged a written FIR before Garmur P.S which was registered as Garmur P.S case no. 38/12, under section 302/201/143 IPC. Exhibit 8 is the FIR and Exhibit 8(2) is his signature along with note. On 30.09.2012, he again visited the house of Rajkumar Doley and searched the house of the deceased properly. After due search, he seized one piece of paper written by Bornali Doley, one exercise book written by Bornali Doley over which name of Rajkumar Doley is written and in bottom name of Bornali Doley is written, one Xerox copy of an agreement between Hemanta Doley and Kondorpa Hazarika, from the house of the deceased persons. Exhibit 2 is the seizure list and Exhibit 2(4) is his signature. Material Exhibit 4, 5 and 6 are the aforesaid documents which he has seen in the court today. He prepared sketch map of the house of deceased Rajkumar Doley. Exhibit 12 is sketch map of the house of the deceased persons and Exhibit 12(1) is his signature. Thereafter, he recorded the statement of the witnesses namely NiloJituPegu, Ranjit Patir and Brojen Mison near the house of the deceased persons. On 30.08.2012, he arrested Kambor Patir, Supply Patir and Barisha Patir. The following accused persons namely Nemai Doley, Pulin Doley, Atul Doley, Janma Doley, Boku Doley, Dinesh Morang, Bamun Doley, Raju Doley were arrested by him at the police station. All of the aforesaid accused persons were brought by the village people as after holding a village meeting they found that all the aforesaid accused persons were responsible for killing of the deceased persons.
He further deposed that on 06.09.2012, accused Atul Doley took them to Luhit Chapori where, as per the information given by the aforesaid accused, the accused persons threw the dead body of the deceased persons after cutting them into pieces. On 06.09.12 after getting the information that the accused Atul Doley and Nemai Doley and hidden the daos with which the deceased persons were killed, P.W-18 along with them went to their home which is situated at Luhit Chapori and from the house of Nemai Doley one dao (machete) was recovered in presence of witness Ajoy Pegu, Gopinath Pegu and Paban Pegu. Exhibit 3 is the seizure list and Exhibit 3(4) is his signature. Exhibit 3(5) is the signature of the accused Nemai Doley. Another Dao was recovered and seized from the house of the accused Atul Doley vide Exhibit 4, Seizure list. Exhibit 4(4) is his signature and Exhibit 4(5) is the signature of Atul Doley.
Material Exhibit 7 and Material Exhibit 8 are the seized daos having wooden handle which P.W-18 have seen before the court today.
On 13.03.2012 witness Ajoy Pegu, Gopinath Pegu and Paban Pegu were brought before the magistrate to record their statement under section 164 Cr.P.C.
On 04.11.2012 accused Biswa Patir brought PW-18 along with Executive magistrate Damudor Barman near to the bank of Luhit river where as per the
PAGE NO. 17
statement of the aforesaid accused they have cut the deceased persons into pieces and threw them in to Luhit River. The sketch map of the place as shown by the accused Biswa Patir, where the bodies of the deceased persons were thrown after cutting them into pieces, is drawn by P.W-18 in presence of witnesses. Exhibit 9 is the sketch map and Exhibit 9(2) and 9(3) are his signatures.
After completion of investigation and after finding sufficient materials against the accused persons under Sections 302/201/143 IPC, PW-18 submitted charge sheet against them under the aforesaid section of law. Exhibit 13 is the charge sheet and Exhibit 13(1) is his signature.
Witness Amor Ch. Kuli [PW-14] stated before PW-18 that Rajkumar Doley and Bornali Doley used some abusive language against some boys due to which the aggrieved boys killed Rajkumar Doley, Bornali Doley and their son Jitu Doley at night. The aforesaid witness stated before P.W-18 that he came to know secretly that Limai Doley, Boku Doley, Biswa Patir, Bamun Doley and Jan Doley are involved in the killing of the aforesaid persons. He also stated before PW-18 that when police interrogated the aforesaid persons they told that they killed Rajkumar Doley, Bornali Doley and their son Jitu Doley and after killing them chopped them into pieces and threw them into Luhit river. Exhibit-14 is the statement made by the aforesaid witness under section 161 Cr.P.C, before PW-18.
Jyotshna Doley [PW-15] stated before PW-18 that the persons in the lock up told her in missing language that they cut Bornali Doley, Rajkumar Doley and their son Jitu Doley into pieces and thrown them in the Luhit river on suspecting them to be witch. This witness stated before P.W-18 that the accused persons told her in missing language that cows, goats and other animals used to run away by seeing Rajkumar Doley and Bornali Doley. The aforesaid witness also stated before PW-18 that the persons told her that there was dispute between Rajkumar Doley and his elder brother. The aforesaid witness stated before PW-18 that the persons told to her that they killed the son of Rajkumar Doley and Bornali Doley so that he does not become witness in future. Exhibit-15 is the statement made by the aforesaid witness under section 161 Cr.P.C, before me.
Prafulla Baruah [PW-16] stated before P.W-18 that on 05.09.2012 form the evening bulletin of News Live and other sources he came to know that Garmur Police arrested some persons in connection with witch hunting, then he went to the police station to see the persons. The aforesaid witness stated that when he arrived at the police station he found police to interrogate Nemai Doley, Pulin Doley, Atul Doley, Jan Doley, Boku Doley, Dinesh Doley, Monesh Doley, Bamun Doley, Ghana Kanta Doley and Raju Doley. He stated that when police interrogated the persons, they stated that they have killed Rajkumar Doley, Bornali Doley and their son Jitu Doley of Luhit Chapori Village on 28.08.2012 on suspicion of witch craft. He stated that the aforesaid persons stated in his presence that they cut the dead body of the aforesaid persons in pieces and threw them into the Luhit river. The aforesaid witness stated before me that when he personally interrogated the aforesaid persons they told to him that they cut Bornali Doley, Rajkumar Doley and their son Jitu Doley into pieced and threw them into the river. Exhibit 16 is the statement of the aforesaid witness recorded under Section 161 Cr.P.C, before PW-18.
PAGE NO. 18
51. In his cross-examination on behalf of accused Shri Rajen Doley, Shri Limai Doley, Shri Anil Doley and Shri Boku Doley, PW-18 stated that the written FIR was lodged by Santanu Doley, son of Rajkumar Doley. The informant while lodging the FIR stated that on suspicion against the accused persons he has lodged the FIR. No explanation of delay was explained in the FIR. P.W-18 had not recorded the statement of the writer of the FIR Upong Pegu.
Initially the verbal information regarding the incident was given by Borjen Misson and Ranjit Patir.
PW-18 denied that he has not recorded the statement of the persons with whom it appears from the material Exhibit 6, i.e photocopy of the agreement between deceased and the members of Missing development committee deceased Rajkumar Doley entered into agreement regarding a fishery. He stated that he had not recorded statement of Kandarpa Hazarika and Hemanta Doley. The blood stain which was found near the Luhit river was not collected by PW-18 for chemical examination as the same was not in a state to collect. The said blood stain was tried to be removed by pouring water. PW-18 have not mentioned in the case diary about the fact that as per the information of the accused Limai Doley and Atul Doley he went in search of the weapon of offence i.e dao from their home or on the basis of such confession the weapon of offence i.e two numbers of daos were recovered.
PW-18 denied that no dao was recovered from the house of the accused Nemai Doley or Atul Doley. He denied that he had not recorded statement of the witnesses in presence of whom he seized the dao from the house of the accused persons Atul Doley and Nemai Doley. He stated that he had not sent the seized dao to the forensic laboratory as he had not found any blood stain on the same. He denied that he had recovered the seized dao from the open space and not from the house of the aforesaid accused persons.
PW-18 stated that he asked some of the persons to ask the accused persons in missing language to ascertain that whether they have killed the deceased persons. He stated that he does not know missing language and he could not understand the answers given to the said persons in Missing language.
PW-18, stated that he did not get any information regarding the incident from any police personnel.
PW-18, denied that without finding any material against the accused persons he had submitted false charge sheet against them.
52. In his cross-examination on behalf of the accused persons Janma Doley, Lakhidhar Patir, Bamun Doley, Atul Doley, Jan Doley, Biman Patir, Raju Doley, Pulin Doley and Biswa Patir, PW-18 stated that on the same day of getting verbal information i.e. on 28.08.2012 he along with village gaonburah and Secretary VDP members of Luhit Chapori Village duly inspected the said area and while searching the said place he didnot find any dao over there. On the subsequent day also he went to the said place but on the said day also he did not find any dao over there. After about one week of the incident, the accused persons namely Atul Doley and Nemai Doley were taken from the custodial detention to their home, where they hid the dao. Along with the aforesaid accused persons, PW-18 took three persons namely Ajoy Pegu, Gopinath Pegu and Paban Pegu whom he found at Luhit Chapori Village. PW-18 had not seized any dao from the
PAGE NO. 19
bank of the river Luhit. When he searched the house of the accused Atul Doley, three witnesses namely Ajoy Pegu, Gopinath Pegu and Paban Pegu were present. While searching the house of the accused Atul Doley, PW-18 found his sister at home. He denied that he had not searched the house of accused Atul Doley or he had not seized any dao form his house.
On 04.11.2012 after taking permission of Chief Judicial Magistrate, Jorhat, PW-18 took accused Biswa Patir near Luhit Chapori river and prepared a sketch map (Exhibit 9), as being shown by him, then P.W-18 was accompanied with Executive Magistrate and while taking the aforesaid accused near to Luhit river the following persons namely Kanak Patir and SunJituMorang were also present. PW-18 had recorded statement of both the aforesaid persons. PW-18 denied that that he had not taken accused Biswa Patir near Luhit Chapori river and also have not drawn any sketch map as being shown by the aforesaid accused.
PW-18 had not mentioned the name of the persons who were detained in the lock up when the witnesses were asked to talk in missing language to the accused persons to ascertain the fact of the incident. P.W-18 denied that accused persons have not confessed anything before me. P.W-18 denied that none of the witnesses have stated before him that the accused persons confessed their guilt. PW-18 stated that he could not recover the dead body of the deceased persons as during the incident he came to know that the dead bodies of the said persons were cut into pieces and thrown into the river.
PW-18 denied that without finding any sufficient materials against the accused persons he falsely submitted the charge sheet against them.
53. In the instant case, prosecution has examined as many as 18 witnesses to prove its case against the accused persons. Out of the said 18 witnesses, PW-1 to PW-8 are not personally aware anything about the incident and has deposed nothing incriminatory against the accused persons. Infact, PW-1 to PW-8 has not been cross-examined by the defence. PW-9 and PW-11 are independent witnesses. PW-10 and PW-12 are related witnesses. PW-13 is the son of the deceased persons. PW-14, PW-15 and PW-16 are hostile witnesses. PW-17 Shri Damudar Barman is an official witness and PW-18 is the IO of the case. Interestingly, though the prosecution has examined 18 witnesses in support of its case, there is no eye-witness of the incident and the entire case of the prosecution is based on circumstantial evidence.
54. In a case based on circumstantial evidence in order to sustain the conviction, the evidence must be complete and incapabale of explanation. The Court must satisfy itself that the chain of circumstances is complete and the surrounding circumstances fully establish the guilt of the accused persons. The circumstances from which an inference as to the guilt of the accused 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.
55. The law with regard to conviction on the basis of circumstantial evidence has been discussed in detail in decision of the Hon‘ble Supreme Court of India in the case of Harishchandra Ladaku Thange v. State of Maharashtra [AIR 2007 SC 2957] at paras 8 and 9 as follows :
―8. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063), Eradu v. State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State of Karnataka (AIR 1983 SC 446), State of U.P. v. Sukhbasi & Ors. (AIR 1985 SC 1224), Balwinder Singh alias Dalbir Singh v. State of Punjab (AIR 1987 SC 350) and Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused 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. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621) it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
9. We may also make a reference to a decision of this Court in C. Chenga Reddy & Ors. v. State of A.P. (1996 (10) SCC 193), wherein it has been observed thus : "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
56. In Bhagat Ram v. State of Punjab [1954 AIR(SC) 621 ] it was laid down by the Hon‘ble Apex Court that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
57. In State of U.P. v. Ashok Kumar Srivastava [1992 Crl.LJ 1104] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favor of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
58. In Hanuman Govind Nargundkar & Anr. Vs State of MP[1953] SCR 1091 [163C] it was observed thus:
―It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the fact so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within all human probability the act must have been done by the accused.‖
59. In Sharad Birdhi Chand Sarda Vs State Of Maharashtra [1985 SCR (1) 88] while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defense or plea. The conditions precedent in the words of the Ho‘ble Supreme Court, before conviction could be based on circumstantial evidence can be said to be fully established namely: (a) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (b) The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (c) The circumstances should be of a conclusive nature and tendency;(d) They should exclude every possible hypothesis except the one to be proved; and (e) 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. These golden principles as per the Hon‘ble Supreme Court constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti.
60. The law regarding circumstantial evidence was aptly dealt with by the Hon‘ble Supreme Court in Padala Veera Reddy vs. State of Andhra Pradesh & Others [1989 Supp.(2) SCC 706] wherein the Hon‘ble Supreme Court has observed as under:-
―10. x x x x (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
15. The prosecution placed reliance before the Court mainly on three circumstances, firstly, the last seen theory, secondly, the recovery of material objects which belonged to both the deceased from the appellants-accused and thirdly, the identification of the dead body of Madhan from the river bed as pointed out by the first accused, however, the appellant herein has raised certain doubts regarding the same. ―
61. In Navaneethakrishnan Vs The State by Inspector of Police [Criminal Appeal No. 1134 OF 2013], the Hon‘ble Supreme Court discussed the factors to kept in consideration before convicting a person on the basis of circumstantial evidence as under:
PAGE NO. 22
―23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubt. The court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between ―may be true‖ and ―must be true‖ and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove.‖
62. Bearing the above principles of law in mind, let me know examine the circumstances as can be culled out from the evidence and material on record and whether they are sufficient to bring home the offences with which the accused persons are charged with.
63. Smt. Mamoni Baruah, Learned APP for the State submitted that the accused persons made extra- judicial confenssional statement before PW-9 Shri Ajoy Pegu, PW-10 Shri Paban Pegu, PW-11 Shri Gopinath Pegu, PW-12 Shri Jyotiram Pegu and PW-13 Shri Santanu Doley in custody that all of them have cut Raj Kumar Doley, Bornali Doley and their son into pieces and threw them in Subonsiri river leading to discovery under Section 27 of the Evidence Act.
64. Per contra Shri Bombeshwar Baruah, Learned counsel for the accused persons argued that the alleged extra-judicial confession made by the accused persons that they killed Raj Kumar Doley, Bornali Doley and their son was in Mising language and the persons before whom the said extra-judical confession was made are related to the deceased persons.That if the IO of the case was not conversant with the Mising language, an interpretor should have been provided with the permission of the Court to record the confessional statement of the accused persons instead of asking the relatives of the deceased persons to enquire from the accused persons where they had concealed the dead bodies which was not done in the instant case. According to the Learned Counsel, in the absence of a Court appointed interpretor, there is every likehood that the version of the accused persons were mis-interpreted by the prosecution witnesses being related to the deceased persons and the police. Learned counsel further argued that the confessional statement of the accused persons were not recorded under Section 164 CrPC before a Magistrate, there was no recovery of the dead bodies
PAGE NO. 23
of the deceased and moreover there was no evidence that the accused persons were killed on suspicion of being witch. Learned counsel also submitted that there is contradiction is the version of the PWs as to the no of daos recovered as also to the place of recovery. From Exhibit-3 seizure list, it can be seen that the daos were recovered from the house of accused Limai Doley as shown by him. However, PW-9 Shri Ajay Pegu has stated that the police did not take the accused persons to their home but both the daos were produced by the accused to the police from an open place near the fishery. Also, Shri Ajay Pegu (PW-9) has stated that 5 daos has been seized by the police from the bank of Ronga Nadi in his statement recorded before the Magistrate under Section 164 CrPC. As per the learned counsel, the accused persons were in police custody at the time of making the alleged confession and as such their confession is hit by the provision of Section 25 and Section 26 of the Evidence Act and the provision of Section 27 of the Evidence Act cannot come in aid of the prosecution.
65. From the evidence on record of the instant case it is seen that accused Shri Limai Doley and Shri Anil Doley made extra judicial confenssional statement before PW-9 Shri Ajoy Pegu in custody that all of them have cut Raj Kumar Doley, Bornali Doley and their son into pieces and threw them in subonsiri river leading to discovery under Section 27 of the Evidence Act. Accused Shri Limai Doley made extra judicial confenssion before PW-10 Shri Paban Pegu that all the accused persons killed Raj Kumar Doley, Bornali Doley and their son by cutting them with a dao and threw them into the river and concealed the dao. Accused Shri Limai Doley and few other accused persons told PW-11 Shri Gopinath Doley and the police that they cut Rajkumar Doley, Bornali Doley and their son to pieces and threw them into the river leading to discovery on the weapon of assault near the Subansiri River. Accused Limai Doley and Rajen Doley confessed before PW-12 Shri Jyotiram Doley that all the accused persons have killed Raj Kumar Doley, Barnali Doley and their son Jitu Doley into pieces and threw them into the Subonsiri River as they suspected them to be witch (Daini). PW-13 Shri Santanu Doley has deposed that the accused Sri Limai Doley and Atul Doley confessed before the police in his presence that all the accused persons killed his mother, father and brother.
66. Now, even if the contention of the learned counsel for the accused persons is accepted that there is every likehood that the version of the accused persons were mis-interpreted by the prosecution witnesses being related to the deceased persons and the police, as stated hereinabove it is seen that not one or two but five prosecution witnesses namely PW-9 to PW-13 have stated about the extra-judicial confession made by the accused persons leading to discovery. Out of the said five prosecution witnesses, PW-9 and PW-11 are independent witnesses and only PW-10, PW-12 and PW-13 are related to the deceased persons. PW-9 to PW-13 were put to extensive cross-examimation by the defence but the defence could not demolish the said witnesses or bring anything on record to show that the said witnesses were trying to implicit the accused persons falsely by mis-interpreating what was stated to them in missing language. No suggestion were made to PW-9, PW-10, PW-11, PW-12 and PW-13 that the version of the accused persons were mis-interpreted by the said witnesses being related to the deceased persons and for the first time the said contention is raised at the time of arguments.
PAGE NO. 24
67. Also, it is seen that statement of Shri Ajay Pegu (PW-9), Shri Gopinath Pegu (PW-11) and Shri Jyotiram Doley (PW-12) were recorded under Section 164 CrPC before the Learned SDJM (M), Majuli. The statement made by the witnesses Shri Ajay Pegu (PW-9) that the accused persons confessed that they killed Raj Kumar Doley and two others and chopped their bodies into small pieces and disposed them into the river stands corroborated by his statement under Section 164 CrPC made before the Magistrate. Similarly, Shri Gopinath Pegu (PW-11) has stated in his statement made under Section 164 CrPC before the Magistrate that on 06.09.2012, nine people were caught by the police related to the incident of witch-hunting and they were answering in Mising language to the questions put by the police which the police had difficulty in understanding. The police asked him to put questions to the accused persons in Mising language and the accused persons replied that they know Raj Kumar Doley , Bornali Doley and Jitu Doley and suspecting the of practicing with craft , they killed them, cut the bodies into pieces and disposed the bodies into the river. Thus, the version of Shri Gopinath Pegu (PW-11) made in his Section 164 CrPC stands corrobated in his deposition made before the Court. Also, Shri Jyotiram Doley (PW-12) has stated in his statement made before the Magistrate under Section 164 CrPC that the accused persons stated before the police that they killed Raj Kumar Doley, Bornali Doley and their son on suspicion of withcraft and chopped their bodies into small pieces and threw those pieces into the Luhit River. When he asked the accused persons in Mising language, they confessed and admitted on their own accoord of killing the deceased persons and throwing them into the Luhit River. Thus, the version of Shri Jyotiram Doley (PW-12) in his statement made before the Magistrate under Section 164 CrPC stated corroborated in his deposition made before the Court. Interestingy, PW-9 Shri Ajay Pegu was not cross-examined on his statement recorded before the Magistrate. Though PW-11 Shri Gopinath Pegu and PW-12 Shri Jyotiram Pegu were given a suggestion that their statement under Section 164 CrPC was as per dication given by the police, the said suggestion was denied by the said witneeses and the defence could not establish that PW-11 and PW-12 made their statement before the Magistrate regarding the confession made by the accused persons was as per the dictation of the police.
68. In the instant case, it is true that the extra-judicial confession made by the accused persons that they killed Raj Kumar Doley, Bornali Doley and their son was in Mising language as the IO of the case Shri Deben Ch. Nath (PW-18) was not conversant with the Mising language. The IO has confirmed in his cross-examination that he asked some of the persons to ask the accused persons in Mising language to ascertain whether they have killed the deceased persons as he did not understand the answers given to the said persons in Mising language. No suggestion were made to PW-9, PW-10, PW-11, PW-12 and PW-13 that the version of the accused persons were mis-interpreted by the said witnesses being related to the deceased persons and police and for the first time the said contention is raised at the time of arguments. The wise principle of presumption, which is also recognised by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a the alleged weapon of offence was recovered by him on the strength of the confessional statement made by the accused persons, it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through cross-examination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such
PAGE NO. 25
records of the police, the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with nor to jettison such action merely for the reason that police did not wait for a Court appointed interpretor to interpret the confession made by the accused persons.
69. In Appabhai & Anr. Vs State of Gujarat [(1998) Supp. SCC 241], the Hon‘ble Supreme Court held as under :
"11. ......the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante.
They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, butit is there everywhere whether -in village life, towns or cities.
One cannot ignore this handicap with which the investigating agency has to discharge its duties."
The principle of law laid down hereinabove is fully applicable to the facts and circumstances of the instant case. Therefore, non- providing an interpretor with the permission of the Court to record the confessional statement of the accused persons where the evidence of the prosecution witnesses is found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution as there seems to be no material or reason on record to falsely implicate the accused persons.
70. In the instant case, from the case diary, it can be seen that accused persons namely (a) Shri Limai Doley (b) Shri Pulin Doley (c ) Shri Atul Doley (d ) Shri Jan Doley (e) Shri Boku Doley (f) Shri Dinesh Morang (g) Shri Bamun Doley (h) Shri Dharmakanta Patir (i) Shri Raju Doley made confession before the police on 05.09.2012 while in custody as to the killing of Raj Kumar Doley, Bornali Doley and their son JituDoley and throwing their bodies into the river after chopping the dead bodies into pieces. In so far the confessional statement made by accused persons namely (a) Shri Pulin Doley (b) Shri Jan Doley (c) Shri Boku Doley (d) Shri Dinesh Morang (e) Shri Bamun Doley (f) Shri Dharmakanta Patir and (i) Shri Raju Doley is concered, the said confession is hit by Section 25 and Section 26 of the Indian Evidence Act and not saved by the exception as provided under Section 27 of the Indian Evidence Act. Now, coming to the extra-judicial confession made by the accused persons Shri Limai Doley and Shri Atul Doley is concerned, it can be seen that the accused persons had stated before the police that they killed Raj Kumar Doley, Bornali Doley and their son on suspicion of withcraft and chopped their bodies into small pieces and threw those pieces into the Luhit River. The extra-judicial confessional statement was made by accused Shri Limai Doley the accused Shri Atul Doley at about 4.45 pm on 05.06.2012.
71. Thus from the extra-judicial confessional statement of the accused persons Shri Limai Doley and Shri Atul Doley made before the police, it can be seen that police recorded their confessional statement at around 4.45 pm in the evening of 05.09.2012 whereafter the accused persons Shri Limai Doley and Shri Atul Doley were immediately taken on 06.09.2012 by the police party along with witnesses PW-9 Shri Ajoy Pegu, PW-10 Shri Pobon Pegu and PW-11 Shri Gopinath Pegu to the place of occurrence i.e. Luhit Chapori village. From the case diary of the instant case it appears that at about 11.40 am in the morning of 06.09.2012, the I.O. along with the police staff and witnesses Shri Ajoy Pegu (PW-9), Shri Pobon Pegu (PW-10) and Shri Gopinath Pegu (PW-11) accompanied by the accused persons Shri Limai Doley and Shri Atul Doley went to the place where the dead body of the three deceased persons Raj Kumar Doley, Bornali Doley and their son JituDoley were chopped into pieces and thrown into the Luhit River and also recovered the two daos used by the accused persons used for the commission of the offence from the house of accused persons at Luhit Chaopri Village as shown by the accused persons Shri Limai Doley and Shri Atul Doley. 72. From Exhibit-3 Seizure List it can be seen that PW-18 Shri Deben Ch. Nath, the investigating officer of the case searched the premises of accused Shri Limai Doley on being led by him and found in the house of accused Shri Limai Doley, one iron dao with a wooden handle which was tied with cane, 2 feet in length and 6 inch handle which was used at the time of the crime. The dao was seized in the Luhit Chapori village from the house of the accused at about 12.40 pm on 06.09.2012 in presence of seizure witnesses Shri Ajoy Pegu (PW-9), Shri Pobon Pegu (PW-10) and Shri Gopinath Pegu (PW-11). Exhibit-3 is the seizure list has been duly signed by accused Shri Limai Doley as well as PW-18 I.O. Shri Deben Ch. Nath of Garmur P.S. Similarly, from the perusal of Exhibit-4 seizure list, it can be seen that police searched the house and premises of accused Atul Doley on being led by accused Atul Doley in connection with the instant crime in presence of witnesses and during search accused Atul Doley produced one dao and handed over the same to police which was seized by police at Luhit Chapori on 06.09.2012. The seized dao was iron dao with a bamboo handle, 1 feet in length and the handle was 3 feet in length. The seizure was made in presence of seizure witnesses namely seizure witnesses Shri Ajoy Pegu (PW-9), Shri Pobon Pegu (PW-10) and Shri Gopinath Pegu (PW-11). Exhibit-4 is the seizure list has been duly signed by accused Shri Limai Doley as well as PW-18 I.O. Shri Deben Ch. Nath of Garmur P.S. 73. Both the daos seized by police vide Exhibit-3 and Exhibit-4 was exhibited before the Court during the course of trial as Material Exhibt-7 and Material Exhibit-8 respectively. The said daos were identified by PW-9 Shri Ajoy Pegu who also proved the seizure list and admitted his signature in the seizure list as Exhibit-3(1) and Exhibit-4 (1). Similarly, PW-10 Shri Pobon Pegu has also identified Material Exhibit-7 in the Court and also admitted his signature as Exhibit-4(2) in the seizure list Exhibit-4. PW.11 Shri Gopinath Pegu proved the seizure of the two daos by the police and it can be seen from his deposition that he has stated that police has seized both the daos in his presence and took his signature. He proved Exhibit-3(3) as his signature in the Exhibit-3 seizure list vide which police seized the Kopi dao and recognized the Material Exhibit- 7 Kopi dao which was seen by him in the Court during trial. PW-11 Shri Gopinath Pegu admitted his signature as Exhibit-4(3) in Exhibit-4 seizure list vide which the police seized the Messi dao in his presence and took his signature. In his cross-
PAGE NO. 27
examination, PW-11 clarified that the police seized the dao from near Luhit Chapori as stated in the seizure list Exhibit-3 and Exhibit-4. 74. PW-18 Shri Deben Ch. Nath, the investigating officer of the case, has stated in his deposition that on 06.09.2012, after getting the information that accused Atul Doley and Limai Doley had hidden the daos with which the deceased persons were killed, he along with the accused persons went to their house which situated at Luhit Chapori and from the house of accused Limai Doley one dao was recovered in presence of witnesses Shri Ajoy Pegu (PW-9), Shri Pobon Pegu (PW-10) and Shri Gopinath Pegu(PW-11) and he proved Exhibit-3 seizure list and Ehibixt-3(4) as his signature thereon and Exhibit-3(5) as the signature of accused Shri Limai Doley. PW-18 further deposed that another dao was recovered and seized from the house of accused Atul Doley vide Exhibit-4 seizure list and proved Exhibit-4(4) as his signature and Exhibit-4(5) as the signature of accused Atul Doley. Material Exhibit-7 and Material Exhibit-8 being the seized daos with handle were seen and identified by PW-18 before the Court during trial. 75. As already stated hereinabove, in the case diary PW-18 Shri Deben Ch. Nath, the investigating officer of the case has stated that he along with police party and accused persons Shri Limai Doley and Shri Atul Doley and witnesses Shri Ajoy Pegu (PW-9), Shri Pobon Pegu (PW-10) and Shri Gopinath Pegu(PW-11) had gone to the place of occurrence as shown by accused persons and the weapon of offence were recovered by the police on the basis of the confessional statement made the accused persons. The investigating officer of the case was cross-examined by the defence to demolish the version of the prosecution and establish that no dao was recovered from the house of accused persons Shri Limai Doley and Shri Atul Doley on the basis of the confessional statement made by them, however, the defence was unsuccessful in demolishing the case of the prosecution on this count. In fact, the investigating officer has categorically clarified in his cross examination that he did not sent the seized daos to the Forensic laboratory as there was no blood stain on the same and that the blood stain which was found near Luhit River were not sent for chemical examination as same was not in a state to collect as the blood stain was removed by pouring water. Also, it can be seen from the cross-examination of the Investigating officer that the investigating officer was making attempt since 28.08.2012 to recover the weapon of offence i.e. the daos with which the deceased persons were killed by the accused persons. However, the investigating officer was unsuccessful till 06.09.2012 when the accused persons took the police party to their home at Luhit Chapori from where they took out the hidden daos and handed them over the police. Thus, it is clear that the recovery of the weapon of offence was made only pursuant to the confession made by the accused persons Shri Limai Doley and Shri Atul Doley in custody. 76. In so far as the contention of the learned defence counsel that Shri Ajoy Pegu (PW-9) stated in his Section 164 CrPC statement made before magistrate that accused persons showed 5 numbers of daos and told that they had used the daos for chopping Raj Kumar Doley, Bornali Doley and JituDoley, however, as police had seized only two daos and all the witnesses have signed and proved Exhibit-3 and Exhibit-4 seizure lists vide which the two daos were seized, only because five numbers of daos were shown as stated by Shri Ajoy Pegu (PW-9) in his Section 164 CrPC statement, it cannot be stated that all the five daos were
PAGE NO. 28
seized by police and all the daos were used in killing the deceased persons. In a recovery leading to confession made by an accused, only that portion of confession leading to recovery is relevant and admissible. Also, it can be seen from the Section 164 CrPC statement of Shri Ajoy Pegu (PW-9) that five numbers of daos were shown by the accused, however, no where it is stated in the said statement that all the said five daos were weapon of murder and the police had seized all the five daos. It is clear from the deposition witnesses Shri Ajoy Pegu (PW-9), Shri Pobon Pegu (PW-10) and Shri Gopinath Pegu(PW-11) and PW-18 Shri Deben Ch Nath, IO that police had seized only two daos vide Exhibit -3 and Exhibit-4 seizure lists. 77. In view of above, if I take the much highlighted submission of the learned counsel for the accused persons as with regard to admissibility of extra judicial confession made by accused Shri Limai Doley and accused Shri Atul Doley, the first and foremost thing which attract my attention is that the extra-judicial confession was made on 05.09.2012 at 4.45 pm and the recovery on the basis of extra judicial confession was made on 06.09.2012 at 12.40 pm. In view of above it has to be held that there was hardly any chance for the prosecution to make any embellishment for improving its case. From the statement of witnesses PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu and PW-11 Shri Gopinath Pegu made before the police under Section 161 CrPC, it can be seen that the police recorded their statement around 3.20 pm in the afternoon of 06.09.2012 wherein they have mentioned about the extra-judicial confession made by the accused persons leading to discovey of the weapon of offence i.e. the two daos by the accused persons. The statement made by PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu and PW-11 Shri Gopinath Pegu stands corroborated by their statement made before the Magistrate under Section 164 CrPC and deposition before the Court as to the time, recovery, place of recovery and also recovery of the weapon of offence being the two daos by the accused persons in the presence of PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu, PW-11 Shri Gopinath Pegu who were seizure witnesses and IO of the case Shri Deben Ch. Nath (PW-18) from the house of accused persons Shri Limai Doley and Shri Atul Doley from Luhit Chapori Village. 78. Coupled with the aforesaid facts, it is also found that the accused Shri Limai Doley was produced before the Court and the seizure list of the dao Exhibit-3 contains his signature on 06.09.2012. Similarly, accused Shri Atul Doley was produced before the Court and the seizure list of the dao Exhibit-4 contains his signature on 06.09.2012. The defence did not seek to challenge either the seizure of the daos or recording of the extra judicial confession both of whom were produced by the police before Court of SDJM(M) , Majuli , Garmur on 06.09.2012 alongwith the accused persons Shri Limai Doley and Shri Atul Doley. Thus, from all attending circumstances it becomes clear that after arrest of the accused persons by the police on 06.09.2012 at 11.30 and after recording of his extra judicial confession at 4.45 pm on 05.09.2012, the police had proceeded to Luhit Chapori Gaon from where the weapon of offence being two daos were recovered from the house of the accused persons at the behest and instance of the accused Shri Limai Doley and Shri Atul Doley.
79. Before we go into the legality and propriety of the aforesaid extra judicial confession of the accused persons Shri Limai Doley and Shri Atul Doley on the basis of which the weapon of offence being two daos which were used to kill and chop Raj Kumar Doley, Bornali Doley and their son JituDoley into pieces, it would
PAGE NO. 29
be necessary for me to take into account as to what the accused persons Shri Limai Doley and Shri Atul Doley had stated before the police at 4.45 pm on 05.06.2012 while in custody . The extra-judicial confessional statement was made by accused Shri Limai Doley reads as under:
― My name is Nimai Doley, aged 22 years. I have studied up to 9th standard. Presently, I have left my study and working as a farmer. On 28.08.12, eight(8) persons who came with me along with Sri Biswa Doley and Bimol Doley etc. formed an assembly first killed Raj Kumar Doley, Bornali Doley and Jitu Doley and chopped them into pieces and brought the 3 dead bodies to the bank of Luhit river and thrown them into deep water. Raj Kumar Doley was brought from the place from where he used to catch fish in Borgula Konkur Ghat towards the Luhit river ties his hands and feet. Bornali Doley and JituDoley were taken from their own house and they were killd in the bank of the same Luhit River. I first gave the blow to Raj Kumar Doley. I have washed the dao and kept the same at home and if police visits I can show the place where the deceased were killed and the dao.
Since last 6-7 months the people from all the Luhit Chapori village were suspecting witch and Witch hunter was brought to cure Raj Kumar Doley and Bornali Doley. The name of the Witch Hunter is not known. On 28.08.2012, at night about 11-12 midnight they were killed as per the decision taken by the youths of the village.‖
Similarly, the extra-judicial confession made by the accused Shri Atul Doley reads as follows:
―My name is Atul Doley. I am presently 19 years. I left my studies after 9th standard. I earn my livelihood as a farmer. The people of village was keeping watch since last 5/6 months back suspecting that Raj Kumar Doley and Bornali Doley were secretly domesticating Witch. The secret was kept by the villagers saw Raj Kumar Doley worshiping the village in a naked state. The Witch hunter was brought from Dergaon. I do not know his name. Last 28.8.2012, Raj Kumar Doley was fishing in Borguli Konkur Ghat. At about 11 in the night, almost all the villagers got together and killed Raj Kumar Doley from behind, got him in boat and took the dead body to the bank of Luhit river towards Jankur village through Arasuti; cut the dead bodies into pieces and threw the body in to deep water. I have taken a dao with a long bamboo handle. I threw the dao in the jungle. If police goes, I can show the dao and the place where the dead body was thrown.
From amongst the villagers Binua Doley, Anil Doley and Bimol Doley etc. had gathered the boys together.‖
80. The aforesaid extra judicial confession of accused persons Shri Limai Doley and Shri Atul Doley has been proven by the Investigating Officer Shri Deben Ch Nath (PW-18). The very purpose of giving to broad gist of exhaustive extra judicial confession is to only show that only after the confessional statement made by the accused persons, the police party having taken the
PAGE NO. 30
accused persons Shri Limai Doley and Shri Atul Doley to Luhit Chapori Village had been able to recover the weapon of offence i.e. the two daos. To that extent either recording of the extra judicial confession by the Police Officer or recovery of the weapon of offence i.e. the two daos at the instance of the accused persons Shri Limai Doley and Shri Atul Doley has remained unchallenged as would be apparent from reading of the evidence of PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu, PW-11 Shri Gopinath Pegu and PW-18 IO Shri Deben Ch Nath and especially his cross-examination.
81. A question, therefore, would arise as to what would be the extent of admissibility of such extra judicial confession. The law in this regard is well settled, inasmuch as an extra judicial confession made by the accused before the police in terms of Section 27 of the Indian Evidence Act would be admissible as is clear from proviso to Section 27 of the Indian Evidence Act which reads as follows:
" Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
82. Explaining the scope of Section 27 of the Evidence Act, the Hon‘ble Apex Court in the case of State of Maharashtra Vs Suresh [(2000)1 SCC 471] has held as follows:-
"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."
83. In the case of Aftab Ahmad Anasari Vs State of Uttaranchal [(2010) 2 SCC 583], the Hon‘ble Supreme Court has held as follows:-
"There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. If the circumstances proved are consistent with the innocence of the accused,
then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other."
84. In the case of Sidhartha Vashisht @ Manu Sharma Vs State(NCT of Delhi)[ (2010)6 SCC 1], as with regard to disclosure statement of the accused persons and their admissibility under Section 27 of the Indian Evidence Act it was laid down by the Hon‘ble Supreme Court as follows:-
"PW 100, SI Sunil Kumar and PW 101 Inspector Surender Kumar Sharma deposed that on the early morning of 5-5-1999 accused Amardeep Singh Gill @ Tony Gill was arrested and he made a voluntary disclosure vide Ext. PW 100/7 that on 29-4-1999 he had a talk with Alok Khanna over telephone and thereafter a telephone call was received at about 8.30 p.m. from Sidhartha Vashisht @ Manu Sharma. He has further disclosed that Alok Khanna came to his house in Tata Sierra Car No. MP 04 V 2634. He has further disclosed that he and Alok Khanna went to Qutub Colonnade in Alok Khanna's Tata Sierra bearing No. MP 04 V 2634.
Accused Manu Sharma surrendered on 6-5-1999 at 2.30 p.m. at Patiala Guest House, Chandigarh before Inspector Raman Lamba, PW 87 and ASI Nirbhay Singh, PW 80. After his arrest accused Manu Sharma had made four disclosure statements. The first was an oral disclosure made to Inspector Raman Lamba wherein he said that he could recover the pistol from Ravinder Sudan at Mani Majra. However, it was pointed out that the search of the house at Chandigarh was taken and since the diary containing the address of Ravinder Sudan could not be found, no recovery could be affected.
On 7-5-1999, accused Manu Sharma made a disclosure to Inspector Surender Kumar Sharma, PW 101 which was recorded as Ext. PW 100/12. In the said disclosure, he disclosed that he was using his younger brother Kartik's Cellphone No. 9811096893 in making calls to his friends like Tony Gill, Alok Khanna, Amit Jhingan and others. He also disclosed the phone numbers of some of the co-accused and that he handed over his cell bearing No. 9811096893 to Yograj Singh in Panchkula and can recover the same. Pursuant to the disclosure of Sidhartha Vashisht @ Manu Sharma the mobile phone used by him was recovered from accused Yograj Singh vide Ext. PW 100/23.
The third disclosure is Ext. PW 100/Article-1 which was video recorded on 7-5-1999 itself after the accused was produced before the Metropolitan Magistrate and copies of which were duly supplied to the accused during trial. From the disclosure Ext. PW 100/Article-1 there were further discovery of facts admissible under Section 27 of the Evidence Act. Pursuant to the disclosures of Manu Sharma investigations were carried out and it was that the accused were in close contact with each other over phone and accused Manu Sharma had made a number of calls from the house of Vikas Yadav son of D.P. Yadav to his house in Chandigarh and to Harvinder Chopra at Piccadilly.
The fourth disclosure of accused Sidhartha Vashisht @ Manu Sharma was recorded by PW 101 wherein he had disclosed that Ravinder Sudan @ Titu having concealed the pistol, had gone to Manali (H.P.) where he met his uncle Shyam Sunder and he very well knew the place where they concealed the pistol and that he could lead to Manali to recover the pistol used in the incident. It further came on record that calls were made to USA to Ravinder Sudan. It may not be out of place to mention that calls were exchanged between the accused and made to USA were discovered pursuant to the disclosures made by the accused persons."
85. In Bhagwan Dass Vs State (NCT) of Delhi [2011(3) PLJR 241(SC)], the Hon‘ble Supreme Court has held as follows:-
"The accused had given a statement (Ex. PW7/A) to the SDM in the presence of PW 11 Inspector Nand Kumar which led to discovery of the electric wire by which the crime was committed. We are of the opinion that this disclosure was admissible as evidence under Section 27 of the Evidence Act vide Aftab Ahmad Ansari Vs State, (2010)2 SCC 583(para 40), Manu Sharma vs State, (2010)6 SCC 1 (paragraphs 234 to 238). In his evidence the Police Inspector Nand Kumar stated that at the pointing out of the accused the electric wire with which the accused is alleged to have strangulated his daughter was recovered from under a bed in a room."
86. In Charandas Swami vs State Of Gujarat & Anr.[2017 SCC OnLine SC 361], the Hon‘ble Supreme Court held as under:
…..The Courts below have accepted the case of the prosecution that the disclosure made by Accused No.3 about the location where the dead body of Gadadharanandji was dumped by him, was admissible under Section 27 of the Evidence Act. The appellants, however, take exception to that by relying on the reported decisions. In our view, the decision in the case of Navjot Sandhu (Supra) has adverted to all the previous decisions and restated the legal position. In paragraph 114, while considering the arguments advanced by the parties regarding the sweep of Section 27 of the Evidence Act, the Court formulated two questions which read thus:
―(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things — concrete or non- concrete.
(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by the police with the aid of information furnished by the accused — whether can be put against him under Section 27.‖ In the context of these questions, the argument of the counsel for the State in that case has been adverted to in paragraphs 115 to 118. The Court then after analyzing Section 27 of the Evidence Act, in paragraphs 120 to 144 adverted to the relevant decisions on the point. In paragraphs 120 and 121, the Court noted thus:
―120. The history of case-law on the subject of confessions under Section 27 unfolds divergent views and approaches. The divergence was mainly on twin aspects: (i) Whether the facts contemplated by Section 27 are physical, material objects or the mental facts of which the accused giving the information could be said to be aware of. Some Judges have gone to the extent of holding that the discovery of concrete facts, that is to say material objects, which can be exhibited in the Court are alone covered by Section 27. (ii) The other controversy was on the point regarding the extent of admissibility of a disclosure statement. In some cases a view was taken that any information, which served to connect the object with the offence charged, was admissible under Section 27. The decision of the Privy Council in Kottaya case which has been described as a locus classicus, had set at rest much of the controversy that centred round the interpretation of Section 27. To a great extent the legal position has got crystallised with the rendering of this decision. The authority of the Privy Council‘s decision has not been questioned in any of the decisions of the highest court either in the pre-or post-independence era. Right from the 1950s, till the advent of the new century and till date, the passages in this famous decision are being approvingly quoted and reiterated by the Judges of this Apex Court. Yet, there remain certain grey areas as demonstrated by the arguments advanced on behalf of the State.
121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case64: (AIR p. 70, para 10) ―clearly the extent of the information admissible must depend on the exact nature of the fact discovered‖ and the information must distinctly relate to that fact. Elucidating the scope of this section, the Privy Council speaking through Sir John Beaumont said: (AIR p. 70, para 10) ―Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant
is accused.‖ We have emphasised the word ―normally‖ because the illustrations given by the learned Judge are not exhaustive. The next point to be noted is that the Privy Council rejected the argument of the counsel appearing for the Crown that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. Upon this view, the information given by a person that the weapon produced is the one used by him in the commission of the murder will be admissible in its entirety. Such contention of the Crown‘s counsel was emphatically rejected with the following words: (AIR p. 70, para 10) ―If this be the effect of Section 27, little substance would remain in the ban imposed by the two preceding sections on confessions made to the police, or by persons in police custody. That ban was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect.‖ Then, Their Lordships proceeded to give a lucid exposition of the expression ―fact discovered‖ in the following passage, which is quoted time and again by this Court: (AIR p. 70, para 10) ―In Their Lordships‘ view it is fallacious to treat the ‗fact discovered‘ within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that ‗I will produce a knife concealed in the roof of my house‘ does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added ‗with which I stabbed A‘ these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.‖ (emphasis supplied)
46. This Court has restated the legal position that the facts need not be self-probatory and the word ―fact‖ as contemplated by Section 27 is not limited to ―actual physical material object‖. It further noted that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. In paragraph 128, the Court noted the statement of law in Udai Bhan (Supra) that, ―A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence.‖ The Court then posed a question as to what would be the position if the physical object was not recovered at the instance of the accused. That issue has been answered on the basis of precedents, as can be discerned from Paragraphs 129 to 132 of the reported judgment. In paragraph 139, the Court noticed the decision in the case of Damu (Supra) which had dealt with the case where broken glass piece was recovered from the spot
matched with broken tail lamp and in paragraph 37 of that decision, the Court observed thus:
―37. How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the investigating officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.‖ (emphasis supplied).
The Court then noted that the above view taken in Damu‘s case does not make it a dent on the observations made and the legal position spelt out in Om Prakash (supra) which distinguishes Damu‘s case because there was discovery of a related physical object at least in part. We may usefully reproduce paragraph No.142 to 144 of the same reported decision, wherein the Court observed thus:
―142. There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant of Section 27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the investigating officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the investigating officer will be discovering a fact viz. the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the police officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the police officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under Section 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence.‖ ―143. How the clause ―as relates distinctly to the fact thereby discovered‖ has to be understood is the next point that deserves consideration. The interpretation of this clause is not in doubt. Apart from Kottaya case various decisions of this Court have elucidated and clarified the scope and meaning of the said portion of Section 27. The law has been succinctly stated in Inayatullah case. Sarkaria, J. analysed the ingredients of the section and explained the ambit and nuances of this particular clause in the following words: (SCC p. 832, para 12) ―The last but the most important condition is that only ‗so much of the information‘ as relates distinctly to the fact thereby discovered is admissible. The rest
of the information has to be excluded. The word ‗distinctly‘ means ‗directly‘, ‗indubitably‘, ‗strictly‘, ‗unmistakably‘. The word has been advisedly used to limit and define the scope of the provable information. The phrase ‗distinctly relates to the fact thereby discovered‘ is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.‖ In the light of the legal position thus clarified, this Court excluded a part of the disclosure statement to which we have already adverted.
144. In Bodhraj v. State of J&K this Court after referring to the decisions on the subject observed thus: (SCC p. 58, para 18) ―The words ‗so much of such information‘ as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.‖ (emphasis supplied)
47. Reliance was also placed on the recent decision of this Court in the case of Dupare (supra). The Court adverted to the relevant precedents and observed thus, in paragraphs 23 to 29:-
―23. While accepting or rejecting the factors of discovery, certain principles are to be kept in mind. The Privy Council in Pulukuri Kotayya v. King Emperor has held thus: (IA p.77) ―… it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.
24. In Mohmed Inayatullah v. The State of Maharashtra, while dealing with the ambit and scope of Section 27 of the Evidence Act, the Court held that:
―11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says:
27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.
12. The expression "provided that" together with the phrase "whether it amounts to a confession or not" show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly relates to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which' may be indirectly or remotely related to the fact discovered.
13. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Emperor, Ganu Chandra Kashid v. Empror). Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor, Udai Bhan v. State of U P). (emphasis in original)
25. In Aftab Ahmad Anasari v. State of Uttaranchal after referring to the decision in Palukuri Kotayya, the Court adverted to seizure of clothes of the deceased which were concealed by the accused. In that context, the
Court opined that: (Aftab Ahmad Anasari Case, SCC p. 596, para 40) ―40. …the part of the disclosure statement, namely, that the Appellant was ready to show the place where he had concealed the clothes of the deceased is clearly admissible Under Section 27 of the Evidence Act because the same relates distinctly to the discovery of the clothes of the deceased from that very place. The contention that even if it is assumed for the sake of argument that the clothes of the deceased were recovered from the house of the sister of the Appellant pursuant to the voluntary disclosure statement made by the Appellant, the prosecution has failed to prove that the clothes so recovered belonged to the deceased and therefore, the recovery of the clothes should not be treated as an incriminating circumstance, is devoid of merits.‖
26. In State of Maharashtra v. Damu it has been held as follows:
―35. …It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya v. King Emperor is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.‖ The similar principle has been laid down in State of Maharashtra v. Suresh , State of Punjab v. Gurnam Kaur, Aftab Ahmad Anasari v. State of Uttaranchal, Bhagwan Dass v. State (NCT of Delhi) , Manu Sharma v. State (NCT of Delhi) and Rumi Bora Dutta v. State of Assam.
27. In the case at hand, as is perceptible, the recovery had taken place when the Appellant was accused of an offence, he was in custody of a police officer, the recovery had taken place in consequence of information furnished by him and the panch witnesses have supported the seizure and nothing has been brought on record to discredit their testimony.
28. Additionally, another aspect can also be taken note of. The fact that the Appellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.) wherein the Court after referring to the decision in H.P. Admn. v. Om Prakash held thus: (Prakash Chand Case, SCC p.95, para 8) ―8. ...There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible Under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 of the Code of Criminal Procedure. What is excluded by Section 162, Code of Criminal Procedure is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place
where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, Under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.‖
29. In A.N. Vekatesh and Anr. v. State of Karnataka it has been ruled that: (SCC p. 721, para 9) ―9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct Under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the accused-Appellants (Exts. P- 15 and P-16) is not admissible Under Section 27 of the Evidence Act, still it is relevant Under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence Under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible Under Section 8 of the Evidence Act.‖ (emphasis supplied) The other decision relied upon is the case of Pandurang Kalu Patil (supra).‖
87. From the aforesaid judicial pronouncements, it can be seen that extra judicial confession made by the accused before the police in terms of sections 25 and 26 of the Indian Evidence Act is inadmissible and in fact it is only in terms of Section 27 of the Indian Evidence Act that in certain exceptional circumstances such extra judicial confession leading to recovery becomes admissible subject to fulfilment of the following test, namely (a) accused should be in custody(b) accused had voluntarily made extra judicial confessional statement (c) article or copes have been recovered at the instance of the accused and (d) during the course of making of extra judicial confession no coercive threat or allurement had been given to the accused.
88. In Aghnoo Nagesia vs State Of Bihar [1966 SCR (1) 134], the Hon‘ble Supreme Court has held as follows:
―Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in ss. 24 to 30 of the Evidence Act and ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to he found under the heading "Admissions". Confession is a species of admission, and is dealt with in ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and
promises. Section 25 provides: "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence Order investigation, save as mentioned in the proviso and in cases falling under sub-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police office- is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.‖
89. In Salim Akhtar @ Mota vs State Of Uttar Pradesh [(2003) 5 SCC 499], the Hon‘ble Supreme Court has held as follows:
―So far as the disclosure statement of the appellant is concerned, the same was admittedly made to police personnel and only that part of the statement would be admissible which is permissible under Section 27 of the Evidence Act. The scope of this provision was explained by the Privy Council in the well known case of Pulukuri Kottaya and Ors. v. Emperor, AIR (1947) PC 67, wherein it was held that it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced.
The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to the past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Therefore, what is admissible is the place from where the polythene bag containing pistol and other articles was allegedly recovered. ―
90. With regard to admissibility of the disclosure statement, the Hon‘ble Supreme Court in Golakonda Venkateshwara Rao Vs State of AP[AIR 2003 SC 2546] has held that even though the disclosure statement of accused leading to recovery of crime articles from concealed place and the recovery memo did not bear the accused's signature, held, that pursuant to the disclosure MOs 1-8 were recovered from the well and dug out from the place which was pointed out by the appellant and therefore such disclosure was voluntary . It was further held that the recovery was in consequence to the information given fortified and confirmed by the discovery of the wearing apparel and skeletal remains of the deceased and therefore the information and statement cannot be held false.
91. Further defining the law with regard to admissibility of the disclosure statement made before police, the Hon‘ble Supreme Court in Nisar Khan Alias Guddu and Ors. Vs State of Uttaranchal[2006 (9) SCC 386] , has observed as follows:
―6. Regarding the second contention that the recovery of arms has not been proved by the prosecution has also no substance. It is evidence on record that the accused were arrested on 17.12.1999 and pursuant to a disclosure statement made by them, the arms were recovered from the bank of Gaula river where these had been hidden under the sand and covered by the stones. All the arms were recovered as pointed out by each accused hidden under the stones. The High Court fell in error in holding that the recovery has not been proved as these were recovered from a place which is frequented by the public. This finding of the High Court is contrary to the evidence on record. It is now well-settled principle of law that the recovery pursuant to the disclosure statement made by the accused under Section 27 of the Evidence Act is admissible in evidence. In Dhananjoy Chatterjee v. State of W.B. , it is held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. It is also held that the Court must disregard the inadmissible part of the statement and take note only of that part of his statement which distinctly relates to the discovery of the articles pursuant to the disclosure statement made by the accused. It is further held that the discovery of the fact in this connection includes the discovery of an object found, the place from which it is produced and the knowledge of the accused as to its existence.
7. In Golakonda Venkateswara Rao v. State of A.P. this Court reiterated the view and held that the discovery statement of an accused leading to recovery of crime articles from concealed place, even though the
discovery statement and the recovery memo did not bear the accused's signature, the fact of recovery from the well and dug out was from a place which was pointed out by the appellant and, therefore, such discovery was voluntary. That the recovery was in consequence to the information given was fortified and confirmed by the discovery of the apparel worn and skeletal remains of the deceased and, therefore, the information and statement cannot be held to be false. In the present case on the recovery memo the signatures of all the accused have been obtained. In Praveen Kumar v. State of Karnataka the same view has already been reiterated.
8. As already noted, in the instant case the discovery of the arms was pursuant to the disclosure statement made by the accused immediately after the arrest and the offending arms were recovered at the place pointed out by each of the accused which were concealed under the sand and covered by the stones. The High Court in this regard fell in grave error by disbelieving the recovery memo solely on the ground that the place is a common place which is frequented by the public. The High Court failed to take notice that the recovery has been made from underneath the sand covered by the stones pursuant to the disclosure statement pointed out by each of the accused.‖
92. The consequence of the extra-judicial confession made by the accused persons Shri Limai Doley and Shri Atul Doley resulted in discovery of the weapon of offence and the place of disposal of the dead body, and these were facts which were not within the knowledge of the police and were discovered for the first time on the information given by the accused persons Shri Limai Doley and Shri Atul Doley. Recovey of the weapon of offence at the instance of the accused persons and on pointing out that the dead bodies of the deceased persons Raj Kumar Doley, Bornali Doley and JituDoley after killing them were thrown in the Luhit River with assistance of the other accused persons, the action of the accused persons related directly to the commission of the instant offence. Since the confession by the accused persons Shri Limai Doley and Shri Atul Doley led to discovery of facts, which facts were not within the knowledge of the police and also which had a direct relation and nexus to the commission of the offence, the same would be covered by Section 27 of the Evidence Act. The law with regard to the admissibility of confessional statement of an accused is discussed in Dhananjoy Chaterjee Vs State of WB[ (1994) 2 SCC 220] wherein the Hon‘ble Supreme Court has held that the entire statement made by an accused person before the police is inadmissible in evidence being hit by Sections 25 and 26 but that part of his statement which led to the discovery of the articles is clearly admissible under Section 27 of the Act. In the light of the above discussion I find no force in the argument of the learned counsel for the accused persons that the confession of the accused persons is hit by the provision of Section 25 and Section 26 of the Evidence Act and the provision of Section 27 of the Evidence Act cannot come in aid of the prosecution.
93. Keeping the aforementioned well settled position in law if the admitted facts are taken into account it readily transpires from evidence of PWs. 9, 10 , 11 and 18 that such inculpatoryextra judicial confession was made by the accused persons while in custody and that they had made the extra judicial confession voluntarily, as a result whereof the weapon of offence was recovered by the
Investigating Officer (PW-18) from the house of accused persons Shri Limai Doley and Shri Atul Doley located in Luhit Chapori Village at the instance of the accused persons on 06.09.2012 vide seizure list Exhibit-3 and Exhibit-4 in the presence of seizure witnesses PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu and PW-11 Shri Gopinath Pegu. The Exhibit-3 and Exhibit-4 seizure lists have been was proved by seizure witnesses PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu and PW-11 Shri Gopinath Pegu and PW-18 IO Shri Deben Ch. Nath. As such, in view the ratio laid down by the Hon‘ble Apex Court in Charandas Swami’s case (supra) and other authorities on the aspect of confessions under Section 27 of the Indian Evidence Act, in my considered opinion reliance can be placed on the fact discovered by the Investigating Officer (PW-18) on the basis of the disclosure made by the accused persons Shri Limai Doley and Shri Atul Doley on 06.09.2012 pursuant to which the weapon of assault i.e. the two iron daos were seized by the IO (PW-18) from the accused Shri Limai Doley and Shri Atul Doley vide seizure list Exhibit-3 and Exhibit-3.
94. Moreover, the accused persons also failed to show that they were compelled to make the disclosure statement having a material bearing on the criminality of the maker i.e. to bring the evidence within the inhibition of Article 20(3) of the Constitution of India. In the instant case, the confessional statement was made by the accused persons Shri Limai Doley and Shri Atul Doley on 05.09.2012, however, the accused persons failed to make any retraction on the ground of any threat or duress made to them by the police before recording their statements till date i.e. for more than eight years. It has been held that the information furnished by an accused person after his arrest to the investigation officer which leads to the discovery of articles under Section 27 of the Indian Evidence Act, 1872 is admissible in evidence and does not in any way offend Article 20(3) of the Constitution of India, because an accused person cannot be said to have been compelled to be witness against himself simply because he made a statement while in police custody, without anything more, the mere fact of being in police custody at the time or making the statement would not by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement[Gobinda Reddy, Re AIR 1958 Mys. 150; Fettya v. State, AIR 1955 Raj. 147]. In the instant case, recovery of the weapon of assault at the instance of the accused persons is proved and there is no evidence of any enmity between the deceased and the accused persons.Thus, there is nothing on record to conclude that the confession of the accused persons Shri Limai Doley and Shri Atul Doley were extracted from them and the recovery was made by the police from them under force or coercion.
95. In the instant case, after assessing the natural circumstances that could have led to the happening of the incident, the extra-judicial confession of the accused persons under Section 27 of the Indian Evidence Act leading to discovery, I conclude that the defence has failed to establish the accused persons is not involved with the murder of Raj Kumar Doley, Barnali Doley and their son JituDoley. In view of the attending circumstances and the corroborative material on record, there is no doubt that the deceased persons had been done to death by a deliberate act of killing by the accused persons by chopping them with daos. PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu and PW-11 Shri Gopinath Pegu were present right from the time of making the extra-judicial confession before the police and also during the seach carried out by the police leading to discovery of the weapon of offence. There is no dearth of evidence as with regard to their
throughout presence with police party right from the stage of the extra-judicial confession at the police station on 05.06.2012 till recovery of the weapon of murder and signing the seizure lists Exhibit-3 and Exhibit-4 on 06.06.2012.The same infact has also received support from the evidence of PW-18 who had categorically stated his deposition the fact of recovery of the two daos at the instance of the accused persons Shri Limai Doley and Shri Atul Doley and proved the seizure lists as well. This fact having been not challenged in the cross-examination of PW-18, the presence of PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu and PW-11 Shri Gopinath Pegu alongwith accused persons Shri Limai Doley and Shri Atul Doley at Luhit Chapori Village in the house of the accused persons where the two daos were recovered at the instance of the accused persons itself becomes an admitted fact. The submission of Shri Bombeshwar Baruah, Learned counsel for the accused persons putting doubt either on recording of extra judicial confession or recovery of the weapon of offence at the instance of the accused Shri Limai Doley and accused Shri Atul Doley does not in any way adversely affect this part of the prosecution case as with regard to reporting at the police station on 29.08.2012 by Shri Santanu Doley that his father Shri Rajkumar Doley, his mother Smt. Bornali Doley and his younger brother Sri Jitu Doley @ JituDoley have been missing since 10 p.m. on 28.08.2012, he along with his maternal uncle came to his father‘s house at Luhit Chapori Village and after coming to the house of his father, the Complainant came to know from a reliable source that on 28.08.2012, at about 10 p.m., the accused persons Babulal Doley, Anil Doley, Monbang Doley, Nemai Doley, Janma Doley, Rajen Doley, Binuwa Doley and other 10-15 villagers of Luit Chapori village , Bordowa together in a planned manner abducted his father Shri Rajkumar Doley, his mother Smt. Bornali Doley and younger brother Shri Jitu Doley forcefully from their house suspecting them to be knowing magic and killed them on the bank of Luhit river and threw them into the river, , the police swinging into action, making search for the missing persons Raj Kumar Doley, Bornali Doley and their son JituDoley, the arrest of the accused persons especially arrest of accused Shri Limai Doley and accused Shri Atul Doley on 05.06.2012 followed by their extra judicial confessional statement before the police, giving clue to the dead bodies being submerged in river Luhit after killing ad chopping the deceased persons and its recovery of the two daos being the weapon of offence at the instance of the accused Shri Limai Doley and accused Shri Atul Doley by the police in presence of seizure witnesses PW-9 Shri Ajay Pegu, PW-10 Shri Paban Pegu and PW-11 Shri Gopinath Pegu. From the details of extra judicial confessional statement of the accused Shri Limai Doley and accused Shri Atul Doley followed by recovery of the weapon of offence at the instance of the accused Shri Limai Doley and accused Shri Atul Doley, its authenticity cannot be questioned and is unimpeachable. 96. From the deposition of PW-17 Shri Damudar Barman, Executive Magistrate, Majuli, it is seen that on 04.11.2012 he went along with police officer of Garmur police Station and accused Shri Biswa Patir went to Lower Subonsiri Luhit Chapori in connection with witch hunting case and after going to the said place police officer prepared sketch map Exhibit -9 of the place of occurrence as being shown by accused Shri Biswa Patir in his presence. PW-17 has proved his signature Exhibit-9(1) in Exhibit-9 sketch map. The accused Shri Biswa Patir stated before PW-17 that the place mentioned in the sketch map is the place where he along with other accused persons thrown away the dead body of the persons who were killed by them. Under Section 164 CrPC, what is not permissible is only the recording by a person other than a Judicial Magistrate of a
PAGE NO. 45
confession by recourse to Section 164 CrPC, however, anybody including an Executive Magistrate is entitled to record an extra judicial confession. In Kartar Singh Vs State of Punjab [(1994) 3 SCC 569], a Constitutional Bench of the Supreme Hon‘ble Court held that since an Executive Magistrate or a Special Magistrate authorised under Section 20(3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ("TADA Act" for short) was acting as a criminal Court, they are entitled to record a confession in relation to a case involving an offence under the TADA Act). The defence sought to demolish the fact of accused Shri Biswa Patir making extra-judicial confession before PW-17 Shri Damudar Barman, however, except making a suggestion that accused Biswa Patir did not show the place of occurance as being shown in the sketch map, which was denied by PW-17, the defence could not by way of cross-examination demolish the fact of extra-judicial confession by the accused Shri Biswa Patir before PW-17. Hence, the prosecution has been successful in establishing that accused Shri Biswa Patir stated before PW-17 that the place mentioned in the sketch map i.e. lower Subansiri Luhit Chapori is the place where he along with other accused persons thrown away the dead body of the persons who were killed by them.
97. At this juncture, I consider it appropriate to refer to Section 30 of the Indian Evidence Act which provides for consideration of proved confession affecting person making it and others jointly under trial for same offence and reads as follows:
―30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.—When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. 1[Explanation.—―Offence‖, as used in this section, includes the abetment of, or attempt to commit the offence.] Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said—"B and I murdered C‖. The Court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said—―A and I murdered C‖. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.‖
98. Section 30 of the Indian Evidence Act as quoted hereinabove is an exception to the general rule that a confession of an accused is inadmissible against other accused persons who are jointly tried. Section 30 lays down when there are more than one accused who are jointly tried for the same offence and a confession made by one of them at the trial, the Court may take into consideration the confession against all accused. If the statement of the accused does not amount to a confession it is not admissible against co-accused in as much as a confession of an accused especially when it is self-exculpatory cannot be used against a co-accused, when the confessing accused was not facing any
trial. The principle on which the confession of one accused is allowed to be used against co-accused is that self implications are supported to provide some guarantee of the truth of accusation made against the other. It is also not necessary that the confession of the co-accused must be made to a magistrate. 99. Further, under Section 114 of the Indian Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. As per Illustration (b), the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. As to illustration (b)—A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable.
100. In Bhuboni Sahu Vs The King [(1949) 51 BOMLR 955], the Privy Council while explaining Section 30 of the Indian Evidence Act held that the confession of a co- accused is an evidence of weak type and such confession by itself does not amount to proof nor such confession can be made foundation of conviction in the following words:
―10. This section was introduced for the first time in the Evidence Act of 1872, and marks a departure from the Common Law of England. It will be noticed that the section applies to confessions, and not to statements which do not admit the guilt of the confessing party. In the present case the Courts in India appreciated this, and ruled out statements made by certain of the accused which were self-exculpatory in character. The statement of Trinath was, however, a confession. Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 8 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 80, however, provides that the Court may take the confession into consideration arid thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.‖
101. This well settled proposition of law has been followed by a Constitutional Bench of the Hon‘ble Apex Court in the case of Hari Charan Kurmi And Jogia Hajam Vs State Of Bihar [1964 SCR (6) 623] in the following words:
―The question about the part which a confession made by a co- accused person can play in a criminal trial, has to be determined in the light of the provisions of s. 30 of the Act. Section 30 provides that when more
persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The basis on which this provision is found is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to 'a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untrue, and so, s. 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession Particularly if it has been retracted. With that aspect of the problem. however, we are not concerned in the present appeals. When s. 30 provides that the confession of a co- accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration, is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in s. 30 is not evidence under s. 3 of the Act. Sec. 3 defines "evidence" as meaning and including- (1) all statements' which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; Such
documents are called documentary evidence.
Technically construed. this definition will not apply to a confession. Part (1) of the definition refers to oral statements which the court permits or requires to be made before it; and clearly, a confession made by an accused person is not such a statement. it is not made or permitted to be made before the court that tries the criminal case. Part (2) of the definition refers to documents produced for the inspection of the court; and a confession cannot be said to fall even under this part. Even so, s. 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused person; that is to say, though such a confession may not be evidence as strictly defined by s. 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non- technical way. But it is significant that like other evidence which is produced before the Court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because s. 30 merely enables the Court to take the confession into account.
As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbuttv (1911) I.L.R. 38 Cal. 559 at p. 588. a confession can only be used to "lend assurance to other evidence against a co-accused". In In re. Peryaswami Noopan, (1913) I.L.R. 54 Mad. 75 at p. 77 Reilly J. observed that the provision of s. 30 goes not further than this : "where there is evidence against the co-accused sufficient, if,. believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King 76 Ind App. 147 at p. 155: (AIR 1949 PC 257 at p. 260) the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in s. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence." It would be noticed that as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of s. 30, the fact remains that it is not evidence as defined by s. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in s. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh 1952 SCR 526: (AIR 1952 SC 159)where the decision of the Privy Council in Bhuboni Sahu's case has been cited with approval.In appreciating the full effect of the
provisions contained ,in s. 30, it may be useful to refer to the position of the evidence given by an accomplice under s. 133 of the Act. Section 133 provides that an accomplice shall be a competent witness against an accused person; and that conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to s. 114 of the Act brings out the legal position that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Reading these two provisions together, it follows that though an accomplice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point. The point of significance is that when the Court deals with the evidence by an accomplice, the Court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under s. 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and' as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars.
The statements contained in the confessions of the co- accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the Court has to adopt in dealing with these two types of evidence is thus clear, well-understood and well-established. It, however, appears that in Ram Prakash's case , some observations have been made which do not seem to recognize the distinction between the evidence of an accomplice and the statements contained in the confession made by an accused person. "An exa- mination of the reported decisions of the various High Courts in India," said Imam J., who spoke for the Court in that case, "indicates that the preponderance of opinion is in favour of the view that the retracted confession of an accused person may be taken into consideration against a co- accused by virtue of the provisions of s. 30 of the Act, its value was ,extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars." The last portion of this observation has been interpreted by the High Court in the present case as supporting the view that like the evidence of an accomplice, a ,confessional statement of a co-accused person can be acted upon if it is corroborated in material particulars. In our opinion, the context in which the said observation was made by this Court shows that this Court did not intend to lay down any such proposition. In fact, the other evidence against the appellant Ram Prakash was of such a strong character tnat this Court agreed with the conclusion of the High Court and held that the said evidence was satisfactory and in that connection, the confessional statement of the coaccused person was considered. We are, therefore, satisfied that the High Court was in error in this case in taking the view that the decision in Ram Prakash's case was intended to strike a discordant note from the
well-established principles in regard to the admissibility and the effect of confessional statements made by co-accused persons.‖
102. In the case of State of Maharashtra Vs. Kamal Ahmed Mohammed Vakil Ansari & Ors. [(2013)12 SCC 17], the issue with regard to confession of accused and its admissibility in evidence both against himself as also against co- accused has been gone at length by the Apex Court wherein it has been held as follows:
―17. The scheme of the provisions pertaining to admissions/confessions under the Evidence Act (spelt out in Sections 17 to 31) makes admissions/confessions admissible (even though they are rebuttable) because the author of the statement acknowledges a fact to his own detriment. This is based on the simple logic (noticed above), that no individual would acknowledge his/her liability/culpability unless true. We shall determine the answer to the first question, by keeping in mind the basis on which, admissibility of admissions/confessions is founded. And also, whether confessions in this case (made to the witnesses at serial nos. 64 to 66) have been expressly rendered inadmissible, by the provisions of the Evidence Act, as is the case set up by the appellant.
18. An examination of the provisions of the Evidence Act would reveal, that only such admissions/confessions are admissible as can be stated to have been made without any coercion, threat or promise. Reference in this regard may be made to Section 24 of the Evidence Act which provides, that a confession made by an accused person is irrelevant in a criminal proceeding, if such confession has been caused by inducement, threat or promise. Section 24 aforesaid, is being reproduced below:-
―24. Confession by inducement, threat or promise when irrelevant in criminal proceeding – 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 proceeding against him.‖ Sections 25 and 26 of the Evidence Act exclude, from the realm of admissibility, confessions made before a police officer or while in police custody. There can be no doubt, that the logic contained in the rule enunciated in Sections 25 and 26 is founded on the same basis/truth out of which Section 24 of the Evidence Act emerges. That a confession should be uninfluenced, voluntary and fair. And since it may not be possible to presume, that admissions/confessions are uninfluenced, voluntary and fair, i.e., without coercion, threat or promise, if made to a police officer, or while in police custody, the same are rendered inadmissible. Sections 25 and 26 aforesaid, are being reproduced below:-
―25. Confession to police officer not to be proved-
No confession made to police officer shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him-
No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation — In this section ―Magistrate‖ does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882).‖ There is, therefore, a common thread in the scheme of admissibility of admissions/confessions under the Evidence Act, namely, that the admission/confession is admissible only as against the person who had made such admission/confession. Naturally, it would be inappropriate to implicate a person on the basis of a statement made by another. Therefore, the next logical conclusion, that the person who has made the admission/confession (or at whose behest, or on whose behalf it is made), should be a party to the proceeding because that is the only way a confession can be used against him. Reference can be made to some provisions of the Evidence Act which fully support the above conclusions.
Section 24 of the Evidence Act leads to such a conclusion. Under Section 24, a confession made ―by an accused person‖, is rendered irrelevant ―against the accused person‖, in the circumstances referred to above. Likewise, Section 25 of the Evidence Act contemplates, that a confession made to a police officer cannot be proved ―as against a person accused of any offence‖. Leading to the inference, that a confession is permissible/admissible only as against the person who has made it, unless the same is rendered inadmissible under some express provision. Under Section 26 of the Evidence Act, a confession made by a person while in custody of the police, cannot ―be proved as against such person‖ (unless it falls within the exception contemplated by the said Section itself). The gamut of the bar contemplated under Sections 25 and 26 of the Evidence Act, is however marginally limited by way of a proviso thereto, recorded in Section 27 of the Evidence Act. Thereunder, a confession has been made admissible, to the extent of facts ―discovered‖ on the basis of such confession (this aspect, is not relevant for the present case). The scheme of the provisions pertaining to admissions/confessions depicts a one way traffic. Such statements are admissible only as against the author thereof.
19. It is, therefore clear, that an admission/confession can be used only as against the person who has made the same. The admissibility of the confessions made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah need to be viewed in terms of the deliberations recorded above. The admissibility of confessions which have been made by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, in Special Case no. 4 of 2009) who are not the accused in
Special Case no. 21 of 2006, will lead to the clear conclusion, that they are inadmissible as admissions/confessions under the provisions of the Evidence Act. Had those persons who had made these confessions, been accused in Special Case no. 21 of 2006, certainly the witnesses at serial nos. 64 to 66 could have been produced to substantiate the same (subject to the same being otherwise permissible). Therefore, we have no doubt, that evidence of confessional statements recorded before the witnesses at serial nos. 64 to 66 would be impermissible, within the scheme of admissions/confessions contained in the Evidence Act.
20. The issue in hand can also be examined from another perspective, though on the same reasoning. Ordinarily, as already noticed hereinabove, a confessional statement is admissible only as against an accused who has made it. There is only one exception to the aforesaid rule, wherein it is permissible to use a confessional statement, even against person(s) other than the one who had made it. The aforesaid exception has been provided for in Section 30 of the Evidence Act, which is being extracted hereunder:-
―30. Consideration of proved confession affecting person making it and others jointly under trial for same offence-
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said - "B and I murdered C". The Court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said, "A and I murdered C".
This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.‖ As is evident from a perusal of Section 30 extracted above, a confessional statement can be used even against a co-accused. For such admissibility it is imperative, that the person making the confession besides implicating himself, also implicates others who are being jointly tried with him. In that situation alone, such a confessional statement is relevant even against the others implicated. Insofar as the present controversy is concerned, the substantive provision of Section 30 of the Evidence Act has clearly no applicability because Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah have not implicated any of the accused-respondents herein. The importance of Section 30 of the Evidence Act, insofar as the present controversy is concerned, emerges from illustration (b) thereunder, which substantiates to the hilt one of the conclusions already drawn by us above. Illustration (b) leaves no room for any doubt, that unless the person who has made a confessional statement is an accused in a case, the confessional
statement made by him is not relevant. None of the accused in Special Case no. 4 of 2009 is an accused in Special Case no. 21 of 2006. As such, in terms of illustration (b) under Section 30 of the Evidence Act, we are of the view, that the confessional statement made by the accused in Special Case no. 4 of 2009, cannot be proved as a confessional statement, in Special Case no. 21 of 2006. This conclusion has been recorded by us, on the admitted position, that the accused in Special Case no. 4 of 2009 are different from the accused in Special Case no. 21 of 2006. And further because, Special Case no. 4 of 2009 is not being jointly tried with Special Case no. 21 of 2006. Therefore, even though Section 30 is not strictly relevant, insofar as the present controversy is concerned, yet the principle of admissibility, conclusively emerging from illustration (b) under Section 30 of the Evidence Act, persuades us to add the same to the underlying common thread, that finds place in the provisions of the Evidence Act, pertaining to admissions/confessions. That, an admission/confession is admissible only as against the person who has made it.
21. We have already recorded above, the basis for making a confessional statement admissible. Namely, human conduct per se restrains an individual from accepting any kind of liability or implication. When such liability and/or implication is acknowledged by the individual as against himself, the provisions of the Evidence Act make such confessional statements admissible. Additionally, since a confessional statement is to be used principally as against the person making it, the maker of the confession will have an opportunity to contest the same under Section 31 of the Evidence Act, not only by producing independent evidence therefor, but also, because he will have an opportunity to contest the veracity of the said confessional statement, by effectively cross-examining the witness produced to substantiate the same. Such an opportunity, would also be available to all other co-accused who would be confronted with a confessional statement made by an accused against them (as in Section 30 of the Evidence Act), as they too would have an opportunity to contest the confessional statement made by the accused, in the same manner as the author of the confession. Illustration (b) under Section 30 of the Evidence Act contemplates a situation wherein the author of the confessional statement is not a co-accused. Illustration (b) renders such confessional statements inadmissible. There is, it may be noticed, no room for testing the veracity of the said confessional statement, either at the hands of the person who made it, or by the person against whom it is made. For adopting illustration (b) under Section 30 to the reasoning recorded above, the same be read as under:-
―...This statement may not be taken into consideration by the court against A (the accused facing trial), as B (the person who made the confession) is not being jointly tried.‖ Illustration (b) makes such a confessional statement inadmissible for the sole reason, that the person who made the confession, is not a co-accused in the case. Again, the underlying principle brought out through illustration (b) under Section 30 of the Evidence Act is, that a confessional statement is relevant only and only, if the author of confessional statement himself is an accused in a case, where the confessional statement is being proved. In the present controversy, the authors of the confessional statements (Sadiq Israr
Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) are not amongst the accused in Special Case no. 21 of 2006. The confessional statements made by them, would therefore be inadmissible (as admissions/confessions) in the present case (Special Case no. 21 of 2006), as the situation in the present case is exactly the same as has been sought to be explained through illustration (b) under Section 30 of the Evidence Act.‖
103. Having thus regard to the settled law as with regard to scope of Section 27 read with Section 30 of the Indian Evidence Act in respect of extra judicial confession, its effect on the accused persons has to be considered in the light of the law laid down by the Hon‘ble Apex Court, such extra judicial confession of accused Shri Limai Doley and accused Shri Atul Doley being inculpatory in nature in view of illustration (a) of Section 30 of the Indian Evidence Act and law laid down by the Hon‘ble Apex Court in the case of Kamal Ahmed (supra) would also bind the other accused persons (a) Shri Rajen Doley (b) Shri Anil Doley ( c) Shri Biswa Patir (d) Shri Baku Doley (e) Shri Bimal Patir @ Birinchi (f) Shri Bamin Doley (g) Shri Raju Doley (h) Shri Lakhinder Patir @ Lotikai (i) Shri Jan Doley (j) Shri Janama Doley @ Janma Doley as with regard to their association and being part of the plan beginning from forming an unlawful assembly, bringing Raj Kumar Doley from the place from where he used to catch fish in Borgula Konkur Ghat towards the Luhit river tying his hands and feet, Bornali Doley and JituDoley from their own house and killing in the bank of the Luhit River first Raj Kumar Doley, then Bornali Doley and Jitu Doley with daos and after bringing the three dead bodies to the bank of Luhit river chopping them into pieces and throwing them into deep water as stated by the accused Shri Limai Doley , accused Shri Atul Doley and accused Biswa Patir in their extra judicial confession.
104. This aspect of the matter has been also explained way back by the Hon‘ble Apex Court in the case of Kashmira Singh v. State of MP [AIR 1952 SC 159], wherein while approving the observation of Sir Lawrence Jenkins that a confession can only be used to ―lend assurance to other evidence against a co-accused‟ law was laid down as with regard to use of extra judicial confession of one accused against another co- accused in the following terms:
"10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
105. This Court, therefore, in view of the law laid down by the Hon‘ble Apex Court in the case of Kamal Ahmed (supra) will have no difficulty in accepting that the extra judicial confession made by the the accused Shri Limai Doley , accused Shri Atul Doley and accused Biswa Patir way will bind the other accused
persons namely (a) Shri Rajen Doley (b) Shri Anil Doley ( c) Shri Baku Doley (d) Shri Bimal Patir @ Birinchi (e) Shri Bamin Doley (f) Shri Raju Doley (g) Shri Lakhinder Patir @ Lotikai (h) Shri Jan Doley and (i) Shri Janama Doley @ Janma Doley.
106. In Chattar Singh & Anr. Vs State of Haryana[2008 (8) Supreme 178] , the Hon‘ble Apex Court has stated the caution which the Court has to adopt in finding out as to whether such extra judicial confession was extracted by way of threat, coercion or inducement, in the following words:
"17. Confessions 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 court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973 (for short the 'Code') or a Magistrate so empowered but receiving the confession at a stage when Section 164 of the Code does not apply. As to extra-judicial confessions, two questions arise : (i) were they made voluntarily? And (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) 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. 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 which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement,(a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not 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. 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 (in short 'Evidence Act'). 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. 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. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or
through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall) It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary.
The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is 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, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mentality of the accused.
18. 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
PAGE NO. 57
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."
107. Having, thus, regard to the nature of extra judicial confession of accused Shri Limai Doley, accused Shri Atul Doley and accused Biswa Patir and no trace of any threat or coercion found from the evidence, this Court will have no difficulty in holding that the deceased were killed by the accused persos with daos, their bodies were chopped into pieces and throw into the River Luhit. Learned counsel for the accused persons also made a feeble attempt to dispute the place of the occurance by submiitng that it was not clear from the evidence on record whether the dead body of the deceased persons were thrown in Luhit River or Subansiri River. From the evidence on record, it is seen that place of seizure list Exhibit -3 and Exhibit-4 is Luhit Chapori Village and the name Luhit and Subansiri is used interchangeably for the same river and they are not two different rivers. Hence, the said submission of the learned counsel for the accused holds no ground.
108. The question however would still be as to how prosecution can link the bringing Raj Kumar Doley from the place from where he used to catch fish in Borgula Konkur Ghat towards the Luhit river tying his hands and feet and Bornali Doley and JituDoley from their own house and killing in the bank of the Luhit River first Raj Kumar Doley, then Bornali Doley and Jitu Doley with daos. From the confessional statement made by accused Shri Limai Doley and Shri Atul Doley leading to discovey, it can be seen that the modus operandi of abduction and killing of the deceased persons has been stated by the accused persons in their extra-judicial confessional statement which stands proved and is admissible in terms of Section 27 of the Indian Evidence Act as stated hereinabove. From the deposition of PW-4, PW-5, PW-6, PW-7 and PW-8 it can be seen that they went to the house of the deceased persons alongwith the police but the deceased persons were not found in the house. PW-8 Shri Bipul Patir and PW-9 Shri Ajay Pegu has stated that the doors of the house of the deceased was open when he visited the house alongwith the police. PW-11 Shri Gopinath Pegu has also corroborated the fact that when he accompanied the police to the house of the deceased persons, the doors of the house was open, all the house-hold articles were lying scattered in the backside of the house and some blood stains and one sim card was found near the fishery. The seizure of ine airtel sim card, one nokia battery and one key pad from the ghat has been proved by PW-1 Shri Prodip Pegu, PW-2 Shri Kamal Ch Tayung and PW-3 Shri Nilamani Pegu. PW-18 IO of the case Shri Deben Ch Nath has stated in his deposition that from the village people, he came to know that Rajkumar Doley always used to go to Borbheli Kankur Ghat to catch fish therefore he went to the aforesaid place and after going there he found some blood stain over there which was tried to be removed
PAGE NO. 58
by pouring water but was not totally removed. In this cross-examiation, PW-18 has clarified that the said blood stain was tried to be removed by pouring water and as such was not in a state to be collected for chemical examination. PW-18 has corroborated the seizure of one SIM card being number 9954618953, one Nokia battery and one Key pad of mobile phone in broken condition over there in presence of witnesses, namely Shri Prodip Pegu (PW-1), Shri Kamal Tayung (PW-2) and Shri NiloJituPegu (PW-3)vide Exhibit 1 seizure list. Material Exhibit 1 is the SIM Card, material Exhibit 2 is nokia battery and material Exhibit 3 is the key pad of mobile phone which was seen and identified by PW-18 before the Court the course of trial.
109. In this backdrop if the evidence of the prosecution witnesses are examined, it is seen that the prosecution witnsses has virtually remained unshaken on this crucial point. It is seen that the accused persons wre specifically put to all the circumstances for which the evidence were laid by the prosecution as has been discussed herein above and yet the facts which were within their special knowledge i.e. the accused persons took deceased persons Raj Kumar Doley, Bornali Doley and their son Jitu Doley near Luhit River and that the accused persons were seen last in the company of the deceased persons, the accused persons failed give any explanation. The response of the accused persons to the said question is mere denial. The very fact that the accused persons Shri Limai Doley, Shri Atul Doley and Shri Biswa Patir even had denied to have made an extra judicial confession leading to recovery of the weapon of offence, an aspect which has been clearly proven by the prosecution would go to show that the accused persons had tried to adopt evasive attitude and failed to divulge the facts which were specifically within their knowledge. As against other accused persons, apart from accused persons Shri Limai Doley, Shri Atul Doley and Shri Biswa Patir though the same questions which were asked from the accused persons Shri Limai Doley, Shri Atul Doley and Shri Biswa Patir were put in and they too had given exactly the same answer and therefore, assuming that they could not have said anything about the question related to extra judicial confession of accused persons Shri Limai Doley, Shri Atul Doley and Shri Biswa Patir they had still to give their explanation as with regard to their being last seen in the company with the deceased persons Raj Kumar Doley, Bornali Doley and their son Jitu Doley but they too failed to give any explanation.
110. As already discussed hereinabove, the prosecution had also proved that in course of arrest of the accused Shri Limai Doley and accused Shri Atul Doley had made extra judicial inculpatory confession as with regard to both himself and the other accused persons on the basis of which the two daos with which the deceased persons were killed was recovered at the place shown and in presence of the accused Shri Limai Doley and accused Shri Atul Doley. Also, accused Shri Biswa Patir stated before PW-17 that the place mentioned in the sketch map Exhibit-9 is the place where he along with other accused persons thrown away the dead body of the persons who were killed by them. When these circumstances where, therefore put to the accused persons in their examination under Section313 Cr.P.C. it was for them to explain the facts within their knowledge.
111. In Gian Chand & Ors Vs State Of Haryana [(2013) 14 SCC 420], the Hon‘ble Supreme Court has held as follows:-
―Thus, in view of the above, it is a settled legal proposition that once possession of the contraband articles is established, the burden shifts on the accused to establish that he had no knowledge of the same.
15. Additionally, it can also be held that once the possession of the contraband material with the accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872 (hereinafter referred to as `the Act 1872‘).
16. In State of West Bengal v. Mir Mohammad Omar & Ors. etc. etc., AIR 2000 SC 2988, this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
(See also: Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404; Gunwantlal v. The State of Madhya Pradesh AIR 1972 SC 1756; Sucha Singh v. State of Punjab AIR 2001 SC 1436; Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai AIR 2003 SC 215; Durga Prasad Gupta v. The State of Rajasthan thr. CBI, (2003) 12 SCC 257; Santosh Kumar Singh v. State thr. CBI, (2010) 9 SCC 747; Manu Sao v. State of Bihar (2010) 12 SCC 310; Neel Kumar alias Anil Kumar v. State of Haryana (2012) 5 SCC 766).‖
112. In so far as the motive for abduction of the deceased persons is concerned, the prosecution has clearly established the motive for the accused persons in abducting Raj Kumar Doley, Bornali Doley and Jitu Doley on or about 28.08.2012 at about 10 p.m so that they may be murdered is that the deceased were suspected of being witch and practicing witch-craft. I am , thereore, of the considered opinion that all the circumstances suggested by the prosecution against the accused are proved beyond reasonable doubt and form a complete chain pointing to the guilt of the accused beyond any reasonable doubt that on or about 28.08.2012 at about 10 p.m , the accused persons formed an unlawful assembly and in furtherance of the common object of the unlawful assembly the accused persons abducted Raj Kumar Doley, Bornali Doley and Jitu Doley and murdered the aforesaid three persons and on those findings, I find accused pesons of committing the offence punishable under Section 364 of IPC. The point for determination is accordingly answered in the affirmative.
113. Shri Bombeshwar Baruah, Learned counsel for the accused persons submitted that the blood found near the Luhit River was not sent for chemical examination. He further submitted that even the daos seized from the accused persons Shri Limai Doley and Shri Atul Doley were not sent for forensic examination. From the deposition of PW-18 Shri Deben Ch Nath, IO of the case it is seen that from the village people, he came to know that Rajkumar Doley always used to go to Borbheli Kankur Ghat to catch fish, therefore, he went to the aforesaid place and after going there he found some blood stain over there which was tried to be removed by pouring water but was not totally removed. In his cross-examination, the IO has clarified that the blood stain which was found near the Luhit River was not collected by him for chemical examination as the same was not in a state to collect. The said blood stain was tried to be removed by pouring water. PW-18 has furher clarified that he had not sent the seized dao to the forensic laboratory as he had not found any blood stain on the same. Thus, the submission of Shri Bombeshwar Baruah, Learned counsel for the accused persons that the Investigating Officer (P.W.8) did not make any effort to send the blood for chemical examination and the recovered daos for forensic examination, will pale into insignificance after the recovery of the weapon of offence with which the deceased were killed at the instance of the accused persons Shri Limai Doley and Shri Atul Doley because neither the chemical examination of the blood nor the foresnsic examination of the daos could have unfolded anything more in a case of present nature based on extra-judical confession of the accused persons.
114. In any event a faulty investigation by the police can never be detrimental and the prosecution case cannot be allowed to suffer only on account of faulty investigation. In the case of State of Karnataka Vs. Yarappa Reddy [AIR 2000 SC 185] the Hon‘ble Apex Court has been held as follows:
"Even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. ..... Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true, the Court is free to act on it albeit investigating officer‟s suspicious role in the case."
115. The aforesaid view was again reiterated by the Hon‘ble Apex Court in the case of Prithvi (Minor) Vs Mam Raj & Ors. [2005 SCC (Cri) 198], wherein it has been held as follows:
"17. Assuming that there was faulty investigation by the investigating officer, it could hardly be a ground for rejection of the testimony of Prithvi which had a ring of truth in it. We may recount here the observation of this Court in Allarakha K. Mansuri v. State of Gujarat, SCC at p.64, para 8, that:
" The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also, defective investigation by itself cannot be made a ground for acquitting the accused."
116. Shri Bombeswar Baruah, Learned Counsel for the accused persons vehemently argued that there is no proof of corpus delicti, as the body of the deceased persons Raj Kumar Doley, Bornali Doley and their son Jitu Doley was not recovered by the police from the Luhit River. Thus according to learned Counsel for the accused persons no reliance can be placed on the disclosure statement made by accused Shri Limai Doley and accused Shri Atul Doley. Counsel for the accused persons also submited that the entire case of the prosecution is based on circumstantial evidence and the circumstances forming a complete chain of events are missing in the instant case.
117. In this case, pursuant to the disclosure statement made, the accused Shri Limai Doley and accused Shri Atul Doley had led the police to the place where the deceased persons was murdered and also recovey of the weapon of offence of murder of the deceased persons was recovered by the police pursuant to the said confessional statement. The sketch map Exhibit 9 of the place of occurance was prepared by the police as shown by accused Shri Biswa Patir. It is true that in the instant case, police failed to recover the body of the deceased persons, however, the IO of the case Shri Deben Ch Nath has clarified that he could not recover the dead body of the deceased persons as during the incident he came to know that the dead bodies of the said persons were cut into pieces and thrown into the river. In effect, it is the accused persons who had led the discovery of the weapon of offence and preparation of the site plan where the bodies were thrown after killing the deceased persons. Thus, there is a direct nexus between the disclosure statement made by the accused Shri Limai Doley, Shri Atul Doley and accused Shri Biswa Patir and the commission of the offence. The entire chain of events, thus, cogently and firmly establish the guilt of the accused persons.
118. In Mani Kumar Thapa Vs State of Sikkim [AIR 2002 page 2920], the Hon‘ble Supreme Court has observed as follows:
―4. Mr. U.U. Lalit, learned Counsel appearing for the appellant, argued that in the absence of any motive and the corpus delicti, it is unsafe to place reliance on the circumstantial evidence adduced by the prosecution; more so when the said evidence is replete with discrepancies, omissions and improvements. He pointed out that in regard to a part of the evidence of the prosecution, the Courts below themselves have not placed reliance, therefore, in a case of circumstantial evidence of this nature, it would be dangerous to base a conviction. We do not find much more in this argument of Mr. Lalit. It is a well-settled principle in law that in a trial for murder, it is neither an absolute necessity nor an essential ingredient to establish corpus delicti. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case the accused would manage to see that the dead body is destroyed which would afford the accused complete immunity from being held guilty or from being punished. What is therefore required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be
proved by direct or circumstantial evidence albeit the dead body may not be traced[See Sevaka Perumal and Anr. Vs State of Tamil Nadu ]. Therefore, the argument that in the absence of corpus delicti the prosecution case should be rejected, cannot be accepted.‖
119. In Ramjee Rai and Anr. Vs State of Bihar [(2007) 2 SCC (Cri) 626], the Hon‘ble Supreme Court has further clarified the law on the subject, as follows:
―It is now a trite law that corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law. In the event, there exists strong circumstantial evidence, a judgment of conviction can be recorded even in absence of the dead body. [See Rama Nand and Others v. State of Himachal Pradesh, (1981) 1 SCC 511].
In Ram Gulam Chaudhary and Others v. State of Bihar [(2001) 8 SCC 311], this Court noticed the decision in Rama Nand (supra) and opined:
"There can be no dispute with the proposition of law set out above. As is set out in the various authorities (referred to above), it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are the persons who had committed the murder"
What was, therefore, necessary for the courts below to arrive at a finding of guilt as against the Appellants in regard to their involvement in the crime. It is not a case where the dead body could not be identified. There had been sufficient materials placed by the prosecution to bring home the said fact.‖
120. From the proposition of law set out above by the Hon‘ble Apex Court, it is clear that it is not at all necessary for a conviction for murder that the corpus delicti be found. Undoubtedly, in the absence of the corpus delicti there must be direct or circumstantial evidence leading to the inescapable conclusion that the deceased person has died and that the accused are the persons who had committed the murder. Upon consideration of evidence adduced by the prosecution, I am of the considered opinion that it is proved proved beyond reasonable doubt the accused persons intentionally caused death of the deceased Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley by abducting them, killing them with daos, after killing the deceased persons chopped their bodies and threw the pieces of the bodies into river Luhit.
121. In the case of Anda and Ors. Vs. The State of Rajasthan[ AIR 1966 SC 148, 1966 CriLJ 171], the Hon‟ble Supreme Court held as follows:-
4. The offence of culpable homicide is defined by Section 299. It reads:
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits offence of culpable homicide."
The offence involves the doing of an act (which term includes illegal omissions) (a) with the intention of causing death or (b) with the intention of causing such bodily injury as is likely to cause death or (c) with the knowledge that the act is likely to cause death. If death is caused in any of these three circumstances, the offence of culpable homicide is said to be committed. The existence of the three circumstances (a), (b) and (c) distinguishes homicide which is culpable from homicides which are lesser offences or which are excusable altogether. Intent and knowledge in the ingredients of the section postulate the existence of a positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person.
5. Section 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. Section 300 begins by setting out the circumstances when culpable homicide turns into murder which is punishable under Section 302 and the exceptions in the same section tell us when the offence is not murder but culpable homicide riot amounting to murder punishable under Section 304. Murder is an aggravated form of culpable homicide. The existence of one of four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder. We are not concerned with the exceptions in this case and we need not refer to them. We now refer to the circumstances which turn culpable homicide into murder. They read:
"300. Murder.
Except in the eases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention of causing, death, or--
2ndly.-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
3rdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
4thly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
Taking the four clauses one by one we find that under the first clause of Section 300 culpable homicide is murder when the act by which death is caused is done with the intention of causing death. This clause reproduces the first part of Section 299. An intentional killing is always murder unless it comes within one of the special exceptions in Section 300. If an exception applies, it is culpable homicide not amounting to murder. It is the presence of a special exception in a given case which reduces the offence of murder to culpable homicide not amounting to murder when the act by which death is caused is done with the intention of causing death.
6. The 2ndly in Section 300 mentions one special circumstance which renders culpable homicide into murder. Putting aside the exceptions in Section 300 which reduce the offence of murder to culpable homicide not amounting to murder, culpable homicide is again murder if the offender does the act with the intention of causing such bodily injury which be knows to be likely to cause the death of the person to whom harm is caused. This knowledge must be in relation to the person harmed and the offence is minder even if the injury may not be generally fatal but is so only in his special case, provided the knowledge exists in relation to the particular person. If the element of knowledge be wanting the offence would not be murder but only culpable homicide not amounting to murder or even a lesser offence. Illustration (b) appended to this clause very clearly brings out the point. It reads:
"(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, Z dies in consequence of the blow. A is guilty of murder, although the Wow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death."
7. The third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. If the intended injury cannot be said to be sufficient in the ordinary course of nature to cause death, that is to say, the probability of death is not so high, the offence does not fall within murder but within culpable homicide not amounting to murder or something less. The illustration appended to the clause 3rdly reads:
"(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death. Here again, the exceptions may bring down the offence to culpable homicide not amounting to murder.
8. The clause 4thly comprehends generally the commission of imminently dangerous acts which must in all probability cause death or cause such bodily injury as is likely to cause death. When such an act is committed with the knowledge that death might be the probable result and without any excuse for incurring the risk of causing death or injury as is likely to cause death, the offence is murder. This clause, speaking generally, covers cases in which there is no intention to cause the death of any one in particular. Illustration (d) appended to this clause reads:
"(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."
122. The case in our hand, as can be seen from the discussion made above, is covered by the first clause of Section 300 IPC. As already been discussed above, the accused persons had killed the deceased Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley by abducting them, killing them with daos and sought to conceal the act of murder after killing the deceased persons by chopped their bodies and throwing the pieces of the bodies into river Luhit which is a clear case of homicide.
123. Upon consideration of evidence adduced by the prosecution on the circumstances appearing in the case and after consideration of various judgments on circumstantial evidence, I am of the considered opinion that all the circumstances suggested by the prosecution against the accused are proved beyond reasonable doubt and form a complete chain pointing to the guilt of the accused beyond any reasonable doubt that on or about 28.08.2012 at about 10 p.m , the accused persons formed an unlawful assembly and in furtherance of the common object of the unlawful assembly committed murder intentionally causing the death of Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley with daos and on those findings, I find accused pesons of committing the offence punishable under Section 302 IPC. The point for determination is accordingly answered in the affirmative.
124. Section 143 of IPC provides the punishment for being a member of an unlawful assembly. Unlawful assembly is defined under section 141 of Indian Penal Code. The essential ingredients to constitute an unlawful assembly are:-
(1) an assembly of five or more persons (2) they must have a common object and (3) the common object must be one of the five specified in the section.
The common object required by Section 143 IPC is to be established with reference to the evidence in each case. The illegal object which the members have in common, must be one of those specified in the Section. If the object does not fall under either of those clauses, it is not illegal and if the object is not illegal, there can be no unlawful assembly. Therefore to constitute an offence under Section 143 of the IPC, the prosecution has to prove that there was an assemblage of at least five persons, that the object of the meeting was any of the five objects mentioned in Section 141 of IPC and that the accused shared that object with at least four others of the meeting and the accused intentionally joined the meeting either having knowledge of its object or continued therein after having that knowledge. The charge framed by the Court should specify the unlawful common object of the assembly. Section 147 provides the punishment for rioting. The points required to be proved are:-
(1) that five or more persons were assembled;
(2) that they constitute an unlawful assembly within the meaning of Section 141 IPC;
(3) that the accused was a member of that assembly;
(4) that force or violence was used by any member of that assembly ;
(5) that it was used in prosecution of its common object.
Section 148 of IPC provides that whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished as provided therein. The ingredients are possession of a deadly weapon, in addition to the ingredients provided under Section 147 of IPC. Section 149 of IPC which is wide in its sweep requires deep scrutiny and detailed and specific proof, for holding that the accused persons were members of an unlawful assembly with a common object with particular reference to the part played by each of the accused persons who constituted the unlawful assembly. It is to be born in mind that Section 149 of IPC is a distinct offence, and deals with vicarious liability of the members of the unlawful assembly for the acts done in prosecution of the common object and for such offence as its members knew to be likely to be committed in prosecution of that common object. It must be proved that such objects were common to all the members of the assembly and the accused joined and continued as a member of the assembly. The common object provided under section 149 and the common intention provided under section 34 of IPC are not synonymous.
125. In Mahbub Shah v. Emperor [AIR 1945 Privy Council 118], the Privy Council has observed that by common intention within the meaning of section 34 implies a prearranged plan. A common object is different from a common intention as it does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the people get there. Persons who at the first instance assembled at a particular place, may have a valid object in view. Suddenly it may develop on the spur of the moment, a common purpose of doing an unlawful thing. The facts to be proved to attract Section 149 are:-
(2) that the accused was a member thereof, at the time of committing the offence;
(3) that he intentionally joined or continued in the assembly;
(4) that he knew of the common object of the assembly;
(5) that an offence was committed by a member of such assembly; and
(6) that it was either committed (a) in prosecution of the common object of the assembly or (b) was such as the members of the assembly knew to be likely to be committed in prosecution of their common unlawful object.
126. A Constitution Bench of the Hon‘ble Supreme Court in Mohan Singh v. State of Punjab [AIR 1963 SC 174] has enunciated the principles as follows:-
"8. The true legal position in regard to the essential ingredients of an offence specified by S. 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any, member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assemblies knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of section 149 is that the offence must have been committed by any member of an unlawful assembly, and S. 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words it is an essential condition of an unlawful assembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made S. 141 inapplicable which inevitably leads to the result that S. 149 cannot be invoked against the appellants. In our opinion, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the appellants has to be dealt with on the assumption that only five persons were named in the charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are acquitted the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly."
Holding that before a court convicts any person or persons with the aid of section 149, there should be a clear finding regarding the common object assembly, a three Judge Bench of the Supreme Court in Bhudeo Mandal and others v. State of Bihar (AIR 1981 SC 1219) it was held:-
"Before recording a conviction under Section 149 of the Indian Penal Code, the essential ingredient of Section 141 of the Indian Penal Code must be established. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in
prosecution of that object. The emphasis is on common object. In the instant case there is neither any evidence nor any finding that any of the ingredients of Section 149 have been established by the prosecution."
9. In order to render a person liable for his constructive criminality, the terms of the section must be strictly fulfilled. As stated earlier, even though charges were framed for the offences under sections 143, 147 and 148 and also for the offences under sections 323, 324 and 302 read with section 149 IPC, the charge does not disclose what was the common object of the unlawful assembly.‖
127. In the instant case, the prosecution proved that there was an assemblage of thirteen persons i.e. more than five persons, that the object of the meeting was to abduct and kill the deceased Raj Kumar Doley, his wie Bornali Doley and their son Jitu Doley on suspicion of practicing witch -craft i.e. the object of the meeting was to commit an offence as mentioned in Clause (3) of Section 141 of IPC and that the accused shared that object with at least four others of the meeting and all the accused intentionally joined the meeting either having knowledge of its object or continued therein after having that knowledge. The charge framed by the then learned Sessions Judge has clearly should specify the unlawful common object of the assembly which is use criminal force and abduct Raj Kumar Doley, Bornali Doley and Jitu Doley from their residence in order to murder them.
128. Upon consideration of evidence adduced by the prosecution on the circumstances appearing in the case and after consideration of various judgments on circumstantial evidence, I am of the considered opinion that all the circumstances suggested by the prosecution against the accused are proved beyond reasonable doubt and form a complete chain pointing to the guilt of the accused beyond any reasonable doubt that on or about 28.08.2012 at about 10 p.m , the accused persons formed an unlawful assembly and in furtherance of the common object of the unlawful assembly used criminal force and abducted Raj Kumar Doley, Bornali Doley and Jitu Doley from their residence in order to murder them and on those findings, I find accused pesons of committing the offence punishable under Section 143 of IPC. The point for determination is accordingly answered in the affirmative.
129. Section 201 IPC which deals with causing disappearance of evidence of offence, or giving false information to screen offender reads as follows:
―201. Causing disappearance of evidence of offence, or giving false information to screen offender.Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, if a capital offence.-shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life.-and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years' imprisonment.-and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.‖
130. The first paragraph of Section 201 of IPC contains the postulates for constituting the offence while the remaining three paragraphs prescribe three different tiers of punishments depending upon the degree of offence in each situation. To bring home an offence under Section 201 of IPC, the ingredients to be established are: (a) committal of an offence; (b) person charged with the offence under Section 201 must have the knowledge or reason to believe that an offence has been committed; (c) person charged with the said offence should have caused disappearance of evidence and (d) the act should have been done with the intention of screening the offender from legal punishment or with that intention he should have given information respecting the offence, which he knew or believed to be false. It is plain that the intent to screen the offender committing an offence must be the primary and sole aim of the accused. It hardly needs any emphasis that in order to bring home an offence under Section 201 IPC, a mere suspicion is not sufficient. There must be on record cogent evidence to prove that the accused knew or had information sufficient to lead him to believe that the offence had been committed and that the accused has caused the evidence to disappear in order to screen the offender, known or unknown.
131. While considering the applicability of provisions of Section 201 of IPC, it must be borne in mind that it is mandatory for the prosecution to prove that an offence, the evidence of which the accused is charged with causing to disappear, has actually been committed and that the accused persons have actively participated in the matter of disappearance of evidence and not merely suffered the same to happen and in absence thereof, criminal liability under this section is not attracted.
132. In Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator) [1953 SCR 94 ] , the Hon‘ble Supreme has held that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; that the accused knew or had reason to believe that such offence had been committed; with requisite knowledge and with the intent to screen the offender from legal punishment, caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. It was observed that the Court should safeguard itself against the danger of basing its conclusion on suspicions, however, strong they may be.
133. In the instant case, the principal offence of murder of deceased Raj Kumar Doley, Bornali Doley and Jitu Doley has been proved to be committed by
all the accused persons pursuant to which they attempted to hide their crime by chopping the dead bodies into pieces and throwing them into the depth of the River Luhit. In view of the scheme of the provisions of Section 201 of IPC, the accused persons are clearly involved with causing to disappear evidence of an offence of murder which they committed pursuant to common object of their unlawful assembly with an intention to screen the said offence of murder and, therefore, by necessary implication, the accused persons are guilty of the offence under Section 201 of IPC. The accused persons on or about 28.08.2012 at about 10 p.m formed an unlawful assembly and in furtherance of the common object of the unlawful assembly after committing murder of aforesaid persons namely Raj Kumar Doley, Bornali Doley and Jitu Doley caused disappearance of evidence of the commission of offence and on those findings, I find accused pesons of committing the offence punishable under Section 201 of IPC. The point for determination is accordingly answered in the affirmative.
134. After carefully scrutinizing each circumstance of the instant case, the circumstances as can be culled out from the evidence and material on record and proved conclusively by the prosecution to bring home the offences with which the accused persons are charge of are as follows:-
(a) The villagers of Luhit Chapori Borduwar suspected Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley of pratising witchcraft which is the motive for commiting the murder of the deceased persons.
(b) Purusant to the said belief, the accused persons formed an unlawful assembly and abducted Raj Kumar Doley from the place from where he used to catch fish in Borgula Konkur Ghat towards the Luhit river tying his hands and feet, Bornali Doley and JituDoley from their own house with the intention of causing their murder.
(c) The deceased persons Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley were last seen together in the company of the accused persons.
(d) After Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley went missing , police seized a sim card in the river bank and found blood stains on the bank of Luhit River which was tried to be washed by pouring water.
(e) After arrest of the accused persons, accused Shri Limai Doley and accused Shri Atul Doley made extra-judicial confession before the police admiiting that all the accused persons had killed the deceased Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley suspecting them of practicing witch-craft pursuant to which their bodies were chopped into pieces and throw in Luhit River.
(f) After arrest of the accused persons, accused Shri Limai Doley and accused Shri Atul Doley made extra-judicial confession before the police leading to recovery of two daos which were weapon of offence at their instance and from the place as shown by them;
(g) The exhibit-9 sketch map showing the place where the deceased persons were thrown was prepared on the basis of the extra-judicial confession made by accused Shri Biswa Patir before PW-17.
(h) The bodies of deceased persons could not be recovered thus proving the case of the prosecution of the accused persons killing Raj Kumar Doley, Bornali Doley and Jitu Doley with daos and after bringing the three dead bodies to the bank of Luhit river chopping them into pieces and throwing them into deep water.
(i) The accused persons failed to give a plausible exaplanation to the circumstances appeaing against them in the questions put to them under Section 313 CrPC.
135. Thus, in the present case, the circumstances from which the conclusion of guilt of the accused persons is to be drawn has not only been fully established but all the circumstances so established are of conclusive nature and consistent with the hypothesis of the guilt of the accused persons and all the established circumstances are complete and there is no gap in the chain of evidence.
ORDER 136. In the result, from the facts and circumstances of the case and discussion made above, I hold that the prosecution has succeeded in bringing home the charges under Sections 302/143/201/364 of IPC against the accused persons 1.Shri Rajen Doley 2. Shri Anil Doley 3. Shri Limai Doley @ Nimai Doley 4. Shri Atul Doley 5. Shri Biswa Patir 6. Shri Baku Doley 7. Shri Bimal Patir @ Birinchi 8. Shri Bamun Doley 9. Shri Raju Doley 10. Shri Lakhindra Patir @ Lotikai 11. Shri Jan Doley 12. Shri Pulin Doley (since deceased) and 13. Shri Janma Doley beyond all reasonable doubt. Hence, I hold them guilty of committing offences punishable under Sections 302/143/201/364 of IPC and convict them under the said sections of law.
137. The Probation of Offenders Act is not applicable to a case under Sections 302/143/201/364 of IPC. Hence the convicts are not entitled to get the benefit of the ameliorative relief as envisaged under the said Act.
138. The sentence will be passed after hearing the convicts on the next following date i.e. on 13.03.2020.
139. The son of the deceased Raj Kumar Doley and his wife Bornali Doley namely Shri Shantau Doley (PW-13) must have undergone unbearable pain and suffering for the brutal murder of his entire family.
140. In the case of Manohar Singh Vs State of Rajasthan [(2015) 3 SCC 449], the Hon'ble Supreme Court has observed as follows:-
―Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable Under Section 357 and 357-A. While Under Section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation.‖
PAGE NO. 72
141. In vew of the above, in the instant case, the son of the deceased Raj Kumar Doley and Bornali Doley must have undergone unbearable pain and suffering for the brutal murder of his entire family. Therefore, I deem it proper to award compensation to Shri Santanu Doley, the son of the deceased Raj Kumar Doley and Bornali Doley under Section 357-A CrPC. Hence, a copy of this judgment is directed to be sent to the District Legal Services Authority, Jorhat to determine the quantum of compensation to be awarded to Shri Santanu Doley, son of the deceased Raj Kumar Doley and Bornali Doley.
142. Destroy the seized articles, if any, in due course of law.
143. Bail bond on behalf of accused persons stand cancelled. They are committed to prison to serve out the sentence. 144. Accused persons are directed to be furnished with a free copy of the judgment and order forthwith.
145. A copy of the judgment and order shall also be forwarded to the District Magistrate, Jorhat in compliance with Section 365 CrPC.
146. Given under my hand and seal of this Court on this 12th day of March, 2020.
(Smt. P. Kataki)
Addl. Sessions Judge, Jorhat
PAGE NO. 73
APPENDIX:
WITNESSES FOR THE PROSECUTION :
P.W.1 ... Prodip Pegu
P.W.2 … Kamal Ch. Tayung
P.W.3 … Nilamani Pegu.
P.W.4 … Soonmoni Morang
P.W.5 … Ranjit Patir
P.W.6 … Brojen Misong
P.W.7 … Kanak Patir
P.W.8 … Bipul Patir
P.W.9 … Ajoy Pegu
P.W.10 ... Pobon Pegu
P.W.11 ... Gopinath Pegu
P.W.12 ... Jyotiram Doley
P.W.13 ... Shantanu Doley
P.W.14 ... Amor Ch. Kuli
P.W.15 ... Jyotshna Doley
P.W.16 ... Prafulla Boruah
P.W.17 ... Damudar Barman
P.W.18 ... Deven Ch. Nath.
WITNESSES FOR THE DEFENCE :
Nil.
WITNESSES FOR THE COURT
C.W.1 ... Ajoy Pegu
C.W.2 ... Gopinath Pegu
C.W.3 ... Jyotiram Doley.
EXHIBITED DOCUMENTS :
Ext.1 ... Seizure list
Ext.2 … Seizure list.
PAGE NO. 74
Ext.3 … Seizure list
Ext.4 … Seizure list
Ext.5 … Statement of witness u/s 164 Cr P C
Ext.6 … Statement of witness u/s 164 Cr P C
Ext.7 ... Statement of witness u/s 164 Cr P C
Ext.8 ... Ejahar
Ext.9 ... Sketch map.
Ext.10 ... Extract copy of GD entry No.464 dated 29.08.12.
Ext.11 ... Sketch map.
Ext.12 ... Sketch map showing house of the deceased persons.
Ext.13 ... Charge sheet.
Ext.14 ... Statement of witness Amor Ch Kuli u/s 161 Cr P C.
Ext.15 ... Statement of witness Jyotshna Doley u/s 161 Cr P C.
Ext.16 ... Statement of witness Prafulla Boruah u/s 161 Cr P C.
Material Ext.1 Sim Card
Material Ext.2 Nokia Battery
Material Ext.3 Key pad
Material Ext.4 Piece of paper written by Bornali Doley
![IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE, JORHAT ...jorhatjudiciary.gov.in/jmt/2016/may/adj/Sessions Case No.109(J-J)15… · cause his death? 5] ... 4:00 p.m. his father went](https://static.documents.pub/doc/80x56/605e418dc0f52f04fb6ac9a5/in-the-court-of-the-additional-sessions-judge-jorhat-case-no109j-j15-cause.jpg)
