Rumi Kumari Phukan, J.@mdashWe have heard Mr. A. Chamuah, learned Amicus Curiae, appearing on behalf of the appellants and also Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam, for the respondent State of Assam.
2. The prosecution story, in a nutshell, is that one Shri. Sukla Bagti, resident of Durga Kona, Silchar, who is the brother of the accused appellant while sleeping in his house on 6.9.2012 at about 10.30 P.M. hearing a sound of shouting he went outside of his house and found the dead body of the wife of the accused Dilip Bagti (his own brother) lying in the nearby house of Sadhan Bagti and head of the deceased wife was taken away by the accused to the University Police Outpost. As he came to know that the accused has killed his wife, so he lodged an FIR before the I/C. Ghungoor O.P. informing the matter on the very next day. Accordingly, a case was registered as Silchar P.S. case No. 1779/12 under Section 302 IPC and the prosecution was set into motion. During the course of investigation, the I.O. recorded the statement of the witnesses and also recovered the weapon of offence "dao" as led and shown by the accused from a nearby pond. After due completion of the investigation, I.O. submitted charge sheet under section 302 IPC against the accused person.
3. The learned Court below committed the case to the Court of Sessions after complying with the provisions of Section 307 IPC and since the offence is triable by the Court of Sessions. On being committed, the learned Sessions Judge, framed the charge under Section 302 IPC after hearing both sides and when explained, the accused pleaded not guilty and claimed to be tried. In support of the case, the prosecution examined as many as 10 (ten) witnesses and the defence examined none. The plea of defence is of complete denial. The statement of the accused was recorded under Section 313 Cr.P.C. wherein also he denied all the allegations. On completion of the trial, the Trial Court held the guilty under Section 302 IPC and sentenced him to R.I. for life and to pay a fine of Rs. 5,000/-, but no sentence has been awarded in default of payment of fine.
4. The accused who is facing the trial from behind the bar since the day of his arrest has preferred the present appeal on being dissatisfied of the judgment and order of conviction dated 3.3.2014 vide Sessions Case No. 114/13 under Section 302 IPC assailing the fact that the judgment has not been delivered as per proper prospective of law and facts, without having adequate evidence against the accused and liable to be set aside.
5. I have heard learned counsel for both the sides. It is the contention of the learned Amicus Curiae that the impugned judgment is liable to be interfered into in view of the fact that there is gross irregularities while appreciating the matters on record in proper perspective. It has been vehemently contended that as there was no eye witness to the occurrence and nobody has seen the accused while carrying the severed head in hand and the police station where the accused alleged to have taken the severed head failed to mention the name of the accused and the G.D. Entry is also silent about the identification of the accused, then how the accused can be attributed for the occurrence. On the next, it is also contended that no motive has been proved on the part of the accused to kill his wife and only on the basis of confession so recorded, the accused cannot be convicted while the accused retracted his confession while giving statement under Section 313 Cr.P.C. It has been pointed out by the learned Amicus Curiae that the accused in his reply under Section 313 Cr.P.C. has categorically stated that he has given the statement out of fear of police for which it cannot be stated to be given voluntarily.
6. Further contention raised by the learned Amicus Curiae is that seizure list cannot be accepted as evidence against the accused as it was not recovered immediately after the occurrence and also in view of the fact that seized article was not examined by FSL to prove that it was used by the accused and the weapon belongs to the accused. Further one circumstance has been pointed out that the accused was not arrested and produced before the Court and only after recovery of the seized Dao the accused was produced before the Court which casts a doubt upon the authenticity of the prosecution case. Raising such contentions, the learned Amicus Curiae has contended that as there appears two views as regard the complicity of the accused with the offence alleged, one of which leans in favour of the accused, the benefit of which should be given to the accused. The case laws reported in
7. Being vociferous against the contention so raised by the learned Amicus Curiae, it has been submitted by the learned Additional Public Prosecutor that there is no substance in the submission of the learned Amicus Curiae to raise doubt about the complicity of the accused with the offence charged. Pointing certain aspects appearing from the evidence of the neighbouring person as well as the I.O. and the case diary, it has been contended by the learned Additional Public Prosecutor that all the chain of facts and the evidence of police officers before whom the accused appeared with the severed head coupled with the confession as well as the evidence of the Medical Officer, it can be safely concluded that it was the accused who was the perpetrator of the crime and the question of identification of the accused is properly made out by the evidence of I.O. and other connecting evidence. It has also been urged before the Court that there is no irregularity while recording the confession by the learned Magistrate P.W. 10 Dewan Mubasshir Hussain who has also given a certificate about voluntariness of the accused while giving confession. So, the subsequent retraction of confession by the accused is of no consequence.
8. Further it has been contended that discrepancy as has been pointed by the learned Amicus Curiae as regard the arrest of the accused after two days of occurrence cannot be a ground to discard the whole case for the irregularity, if any, committed by the I.O. It has also been pointed out that the accused was with the I.O. whole the time after he was apprehended and the evidence of I.O. reflects that he took the accused from the I/C University P.P. where the accused surrendered and this aspect is enough to connect the accused with the offence and there is no doubt about the identification of the accused. The G.D. entry refers the person who has killed his wife and arrived with the severed head at the relevant time mentioned therein and there is nothing to show that apart from the present accused appellant there is also another person who happened to appear before the said Police Outpost. Regarding seizure, it has been submitted that though the seizure is not proved in terms of Section 27 of the Evidence Act, there being no statement of accused recorded by the I.O. prior to the recovery, but the facts remains that the weapon of offence M. Ext. 1 was recovered as led and shown by the accused. So, his conduct is relevant under Section 8 of the Evidence Act which goes against the accused person, not in favour of the accused person, as has been assailed by the learned Amicus Curiae.
9. In pursuance of the rival contentions of both parties, as mentioned above, we have also gone through the entire evidence and matters on record. Admittedly, it is a case of no eye witness and the prosecution heavily relied upon the circumstantial evidence coupled with the confession made by the accused. To begin the matter, the first point struck to the mind of the Court is that it was the brother of the accused (P.W. 3) who lodged the FIR and stood against his own brother and he did not deviate from his version. He was the first person who arrived at the place of occurrence immediately and found the severed/headless part of the body of the wife of the accused lying in the house of P.W. 4 Sadhan Bagti. The said P.W. 4 has also admitted about the finding of the severed body of the wife of the accused in their courtyard and both P.W. 3 and 4 has categorically stated that it was accused who has killed his wife. P.W. 1 Bijon Bagti and P.W. 2 Kartik Bagti have also stated similar version that they were informed by the people of the village that it was the accused person who has killed his wife. Further, P.W. 3 Sukra Bagti and P.W. 4 Sadhan Bagti have also clearly stated that the seized article ''Dao'' was recovered from the pond after two days of the occurrence on being led by the accused person and it was seized in their presence and they have reaffirmed the recovery of the such weapon denying the suggestion of the defence side. We found nothing to disbelieve the evidence of P.W. 3 and 4 who have no enmity with the accused for false implication.
10. On appreciation of the evidence of P.W. 7 Sri. S. Ibungton Sinha, the police constable on duty at University P.P. under Ghungoor O.P. on 6.9.2012, we find that without mentioning any name, he has stated that one person arrived at the University P.P. with a head of a lady, then he immediately informed P.W. 9 (I.O. of the case) and on arrival of P.W. 9 handed over that person with the cut-off head to them. Supporting the evidence of P.W. 7, the Investigating Officer P.W. 9 Sarsing Terong has also admitted about the fact that on 6.9.2012 at about 10.45 P.M. he got the information that a person has arrived at the University P.P. with the head of his wife and he rushed off to the said P.P. by entering a G.D. Entry No. 144 vide Ext. 5 and found the accused and as produced by P.W. 7. So the evidence of duo P.W. 7 and P.W. 9 amply leaves no scope to doubt that it was none other than the accused who surrendered before the P.W. 7 immediately after the occurrence. The contents of the G.D. Entry is supported by the attending facts and circumstances as mentioned above. So there is nothing to raise doubt about the complicity of the accused as has been said by the learned counsel for the appellant. Equally, non availability of the eye witness to the occurrence is apparent as it happened at late hour of night when people went to sleep and all the circumstances are enough to connect the accused with the offence.
11. On the next, regarding seizure, the I.O. in his evidence has stated that the accused led the police to the place of occurrence and near the place of occurrence a Dao was recovered on being led and shown by the accused in presence of the witnesses vide Ext. 6 and it was also found that his statement is supported by the independent witnesses P.W. 3 and 4. In view of such matters, non-recording of statement of the accused under Section 27 of the Evidence Act will not vitiate the search and seizure made by the I.O.
12. Now let us appreciate the another piece of argument raised by the learned Amicus Curiae regarding retracted confession so made by the accused and proved by the P.W. 10. Having found there was no illegality while recording the confession and defence could not hammer upon the same, but the accused while giving statement under Section 313 Cr.P.C. has stated that he has given the statement out of fear of the police. It is to be noted that the accused appellant made the confession before the Magistrate on 8.9.2012 and the accused did not retract his confession immediately thereafter and has only assailed the same while giving statement under Section 313 Cr.P.C. about two years later on, which is in our considered view is not maintainable. As has been discussed above, no illegality is detected while recording the confession and the learned Magistrate has fully explained all the consequences of making confession including the fact that the accused appellant will not be returned to police custody even if he makes no confession, but he will be forwarded to judicial custody/jail. It is also found that the accused was given sufficient time for reflection of 46 hours and his evidence was not recorded immediately after his arrest. It is evident from the evidence of P.W. 10 the learned Judicial Magistrate that while the accused was produced before him on 8.9.2012 for recording evidence and he was sent to judicial custody for reflection and he was again cautioned that he is not bound to give confession and assured that he will not be remanded back to police even if he did not make confession. Even thereafter the accused made the confession and it was recorded on 10.9.2012. Under the circumstances, there is nothing to hold that the accused was under the fear of police to give such confession and he made the confession under threat. Equally, there is scope on the part of the accused to raise such matter of threat, if any, made by police before the learned Magistrate, which he never made. In such backdrop, we are not inclined to accept the contention of retracted confession as has been raised in this case. In such pretext, on the basis of the confession vide Ext. 9 alone, the accused can be held guilty. The statement of the accused is quoted below :-
"I reside with my wife Sabita Bagdi aged about 30/35 yrs. For the last one month I observed that my wife after having her dinner when I go to sleep she used to go outside our house every night for about one hour. I used to enquire her but she would not give any reply. On the night of 6/9/12 after having our dinner my wife went outside out house for about one hour on returning back I asked her, but she quarreled with me and I with a sharp dao cut off the neck of my wife and surrendered before Police at Assam University P.P. with the head of my wife.
I am guilty of murdering my wife and confess my guilt."
13. There is nothing on record to show that the statement made above was not voluntary or truthful. The evidence of M.O. as well as the I.O. have amply proved that the head of the deceased which the accused carried to the University P.P. was the head of the wife of the deceased and M.O. has lend support to the fact. P.W. 5 Dr. Y.N. Sinha has also stated in his evidence that a head of a female was produced before him for examination in reference to the Ghungoor O.P. G.D. Entry No. 144 dated 06/09/2012 and identified as Sabita Bagrti, wife of Dilip Bagti (accused) and he found chopped injury separating the head from the rest of the body and different other cut injuries on other parts of the body and has opined that the death was instantaneous as a result of the injury which were ante-mortem caused by sharp heavy cutting weapon and was homicidal in nature. The evidence of M.O. is supportive of other matters on record. The prosecution has successfully proved all the chain of facts which has unerringly has pointed out towards the guilt of the accused and in such backdrop non-proof of motive is not a ground to discard the whole prosecution case. It is also found that the learned Court below has properly appreciated all the material aspects.
14. Another pertinent aspect of the case is to be weighed with serious manner as regard the statement of the accused appellant made under Section 313 Cr.P.C. Obviously, the accused is facing the trial with a charge of committing murder of his own wife and he is under obligation to explain the circumstances how his wife died, but interestingly, he has not given any sort of answer to all the incriminating materials so put to him while examining him under Section 313 Cr.P.C. He has given cryptic answer to all the questions that "I don''t know". But in our considered opinion, he has a moral/legal right to explain the matter or to question the matter as regards the death of his wife. Dealing with the obligations of the accused to give proper explanation to the questions put under Section 313 Cr.P.C., the Hon''ble Supreme Court has pronounced in a catena of cases, some of which has been referred to herein below :-
(i)
(ii)
(iii)
In the cases referred to above, it has been categorically held by the Hon''ble Supreme Court that-it is obligatory on the part of the accused while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to incriminating circumstances associated with him. The Court must take note of such explanation even in case of circumstantial evidence so as to decide whether chain of circumstance is complete. It is the duty of the appellant to furnish some explanation in his statement under Section 313 Cr.P.C.
15. In the instant case, the accused has given evasive replies to the questions put to him under Section 313 Cr.P.C. while the deceased is none other than his wife and he has not discharged his obligation to give explanation and reply to the circumstances so appeared against him. In the circumstances, an adverse presumption can be drawn against him.
16. As regard the contention of the learned counsel for the appellant regarding non-proving of motive on the part of the prosecution, the matter has been dealt with by the Hon''ble Supreme Court in
"In a case under circumstantial evidence, motive alone can hardly be a ground for conviction. Absence of motive cannot be a ground to reject prosecution case. If the motive is proved that it would supply a link in a chain of circumstantial evidence."
In view of the above proposition of law, we found no substance in the submission of the learned counsel for the appellant that in absence of any motive, charge cannot be held to be proved. On the other hand, the submission of the learned counsel as regards the fact that the accused can be given benefit in view of two views leans in his favour, in the circumstances mentioned above, we have gone through the observations so made in the case of Sujit Bisw as (supra) wherein it has been held that "when a proved circumstances is inconsistent with the guilt of the accused, then the benefit of doubt can be given to such cases". But, in the given case, the circumstantial evidence has established in a conclusive nature by the prosecution which is consistent only with the hypothesis of the guilt of the accused and inconsistent with the plea of innocence. The submission made in this regard is not acceptable.
17. In view of all discussions on findings above, we are of the firm view that the accused has rightly been held guilty under section 302 IPC and conviction and sentence so awarded is hereby upheld. The appeal is found to be devoid of merit and is dismissed accordingly.
18. Before parting with the case record, we appreciate the assistance rendered to the Court by Mr.A. Chamuah, learned Amicus Curiae and we direct the Gauhati High Court Legal Aid Cell to remunerate him to the extent of Rs. 7,000/-.
19. Return the LCRs along with a copy of this judgment.
