Mahiram Bora vs State of Assam

R.K. Manisana, J.—This is an appeal by lifer Mahiram Bora against the conviction made by the Sessions Judge at Lakhimpur on 12-3-92 in Sessions Case No. 76(NL) of 1989. The case of the prosecution, in brief, is thus. On 24-12-87, at about 7 p.m., while Paduram Bora (since dead) was returning home from Simulguri, accused Mahiram Bora struck him on his head with a mit-dao causing severe injuries. The injured Paduram was taken to Dhalpur Dispensary in a vehicle. He was again taken to Dibrugarh Medical Hospital at the advice of the Doctor, but he died there on, 4-1-88. On trial, the Sessions Judge convicted the accused u/s 302, I.P.C., and sentenced him to rigorous imprisonment for life and a fine of Rs. 500/-. Hence this appeal.

There is no direct evidence. Prosecution relies on confession recorded u/s 164, Cr. P.C. extra-judicial confession and other circumstances. The defence of the accused was that Paduram was injured in self-defence.

PW 1 Joy Ram Bora is brother of the deceased Paduram and was the informant. He did not see the occurrence. His evidence is that injured Paduram was taken to Dhalpur Dispensary in a vehicle from the place where he was lying injured. He found the accused there and saw injury on his forehead. At that place accused told them that he had assaulted Paduram. The injury to the accused was examined in Dhalpur Dispensary. Paduram was mentally deranged and, therefore, was separated from his family.

The evidence of PW 2 Tankeswar Bora is that accused told him that it was Paduram who struck him on his forehead with two dao blows. Mahiram snatched the dao from Paduram. He took the accused to the Dispensary for treatment. Paduram was shifted from Dhalpur Dispensary to Dibrugarh Medical College Hospital where he died. He did not see the occurrence. PW 6 Indra Borah is son of Paduram. His evidence is that he found his father at Dhalpur Dispensary. As advised by the Doctor, his father was shifted to Dibrugarh Medical College from Dhalpur. Paduram was slightly recovered but he died at Dibrugarh. Other witnesses are formal witnesses.

In his examination u/s 313, Cr. P.C, the accused stated that he had committed no crime. Paduram had a dao in his hand and he made an attempt to cut him. The accused snatched the dao from Paduram and brandished the dao at him and in the process Paduram was injured. He had not committed any crime nor injured Paduram intentionally. Accused admits that he made a confession before the Magistrate. It is settled that answers given by the accused in the course of examination u/s 313, Cr. P.C, are not evidence, but they may be taken into consideration both for and against the accused, that is, his statement can be taken into consideration in judging his innocence or guilt.

There is no evidence that Paduram met with a homicidal death. The prosecution has not examined the doctor who held autopsy on the dead body of Paduram. The post-mortem report has also not been proved and exhibited. Injured Paduram died 10/11 days after the occurrence. Evidence of PW 1 is that Paduram was slightly recovered. Therefore, the cause of death is not known. It may be due, to injures sustained by him or some other cause. If there are two reasonably probable views, the view which is favourable to the accused is to be accepted. But the fact which remains is that Paduram suffered severe injuries caused by the accused.

Let us now examine the confession. Confession has not been exhibited. The Magistrate who recorded the confession has also not been examined. In view of the decision of the Supreme Court in Madi Ganga Vs. State of Orissa, examination of Magistrate may not always be required except in the absence of any circumstances justifying calling of the Magistrate as witness.

Confession was recorded on 28-12-1987 after 4/5 days of the occurrence, but before the death of Paduram. A reading of confession shows that the accused has not admitted in terms the offence. The statement contains self-exculpatory matters. The statement also does not contain that Paduram was injured by accused Mahiram. Accused simply stated that he was brandishing the dao at Paduram. Therefore, the statement is not a confession in view of the decision of the AIR 1939 47 (Privy Council) which received approval of the Supreme Court in Palvinder Kaur Vs. The State of Punjab (Rup Singh-Caveator), Proceeding further, in Shankaria Vs. State of Rajasthan, the Supreme Court has held that the Court must apply a double test:

(i) Whether confession is perfectly voluntary?

(ii) If so, whether it is true and trustworthy?

A reading of confessional statement shows that it contradicts the statement of the accused made u/s 313, Cr. P.C. Therefore, the confessional statement is not true and trust-worthy and, as such, has not passed the second test laid down by the Supreme Court. For these reasons, we reject the confession.

As already stated, the fact that remains is that the accused injured Paduram in self-defence. There is evidence that the accused also suffered injury and he was treated. From the materials available before us, the prosecution has failed to prove beyond reasonable doubt that the accused exceeded his right of private defence. Therefore, the accused is entitled to benefit of doubt.

In the result, the appeal is allowed. The conviction and sentences made by the Sessions Judge, Lakhimpur on 12-3-92 in Sessions Case No. 76(NL) of 1989 are set aside. The accused-appellant Mahiram Bora, shall be released forthwith, if he is not required in connection with any other case.