MINTU HASDA and ANR vs THE STATE OF ASSAM

 Ajit Singh, C.J.

1.The appellants, namely, Mintu Hazda and Petras Besra @ Tala have been convicted under Section 302/34 of the Indian Penal Code and sentenced

to imprisonment for life and fine of Rs.2000/- each, with default stipulation.

The victim of the incident was Bhim Bahadur Adhikari, aged about 42 years. He was a resident of No.4, Barigaon within the district of Udalguri,

Assam.

According to the prosecution case, on 5/12/2012, at about 9 a.m., Bhim Bahadur Adhikari went out of his house to purchase articles from Udalguri

Weekly Market. But when he did not return till evening, his two daughters searched for him and ultimately found him lying on a road near Khawrang

river. They then asked him to return home but he refused and told them that he would come later. Even then he did not return. And, on the next

morning, his dead body with injuries was found in the river by Ganesh Rajbhor (PW-4), who intimated the villagers about the dead body. Headman of

the village - Gopinath Chetry (PW-5) â€" lodged the First Information Report Exhibit-1 at Udalguri Police Station about the discovery of dead body.

He also stated in the First Information Report that some miscreants might have committed the murder of Bhim Bahadur by hacking his neck with a

sharp edged weapon and thereafter dumped the dead body in the river. The First Information Report was registered against un-known persons. The

Station Officer - Amar Jyoti Baruah (PW-11)- immediately rushed to the place of occurrence and recorded the statements of witnesses. He also sent

the dead body of Bhim Bahadur for post-mortem examination.

Dr. Bhagirathi Dey (PW-7) conducted the post mortem examination on dead body of Bhim Bahadur. She found two cut injuries on the neck leading

to trachea cartilage and vessels; one superficial cut injury on the left lower chest and one injury on the occipital region of head. She opined that the

cause of death of Bhim Bahadur was due to homicidal injuries by heavy and sharp edged weapon leading to sudden respiratory collapse and brain

injury. Her post mortem examination report is Exhibit 3.

After few days, the police arrested the appellants whereafter they made extra-judicial confessions at the Police Station before Kishor Sirpali (PW-

1), Gopinath Chetry (PW-5), Tara Powrel (PW-6), Giriraj Mahanta (PW-8). The appellants also led to the discovery of dao from their house in the

presence of their respective wives - Sangita Hazda (PW-9) and Bali Mardi (PW-10). The police after investigation submitted the charge sheet against

the appellants for an offence under Section 302/34 of the Indian Penal Code.

During trial, the defence of the appellants was that they have been falsely implicated. The trial court, however, relying upon the evidence of

witnesses Kishor Sirpali, Gopinath Chetry, Tara Powrel and Giriraj Mahanta, convicted and sentenced the appellants as aforesaid.

The trial court took into account the following circumstances in holding the appellants guilty:-

a. Bhim Bahadur was missing after departure to weekly market since the morning of 5/12/12,

b. Dead body of Bhim Bahadur was found in the river Khowrang with severe cut injuries on the neck,

c. First Information was lodged by Gopinath on 7/12/12,

d. Seizure of dao from the house of the appellants,

e. Extra-Judicial confession made by the appellants before Kishor Sirpali, Gopinath Chetry, Tara Powrel and Giriraj Mahanta in the presence of

Investigating Officer,

f. Post mortem examination report confirming the death of Bhim Bahadur due to injuries caused by heavy sharp edged weapon,

g. Denial of appellants about their involvement in the crime under Section 313 of the Code of Criminal Procedure without offering any explanation

how Bhim Bahadur actually died.

It is argued on behalf of the appellants that the chain of circumstances is not complete and the extra-judicial confessions made by them before

Kishor Sirpali, Gopinath Chetry, Tara Powrel and Giriraj Mahanta are not admissible in evidence since those were made while they were in police

custody. The learned Public Prosecutor, on the other hand, defended the conviction and sentence of the appellants as passed by the trial court.

After hearing the learned counsel for the parties and perusing the records, we find that the chain of circumstances as enumerated by the trial court

is not complete and there is a glaring missing link amongst them. The missing of Bhim Bahadur and his death is not in dispute. The post mortem report

suggesting the cause of his death is also not in dispute. But, in the fact situation of present case, the plea of innocence of the appellants while being

examined as accused persons under Section 313 of the Code of Criminal Procedure cannot be treated as a circumstance against them. They are not

expected to know the circumstances leading to the death of Bhim Bahadur more particularly because his dead Body was found in the river and not in

their house and even they were not last seen with him, so that, they be required to explain the circumstances of his death. The trial court, in our

considered view, committed an illegality in drawing an adverse inference against the appellants, merely because, they could not explain the death of

Bhim Bahadur.

As regards evidence of seizure of dao from the house of appellants we are of the view that it does not automatically lead to presumption that the

seized dao was actually used for committing the offence. Admittedly, no blood was found on the dao. It was also not sent to Forensic Science

Laboratory for chemical analysis. Moreover, dao is very common to every household in this part of the country. The explanation of the Investigating

Officer Amar Jyoti Baruah that since the appellants had washed the dao he did not sent it for chemical analysis is of no consequence and does not

help the prosecution. Besides, the dao was seized without any disclosure statement of the appellants. Therefore, this circumstance also does not

connect the appellants with the homicidal death of Bhim Bahadur.

The extra-judicial confessions made by the appellants before Kishor Sirpali, Gopinath Chetry, Tara Powrel and Giriraj Mahanta are apparently not

admissible in evidence as those were made before the police while they were in police custody. It is the categorical evidence of the investigating

officer Amar Jyoti Baruah that he came to know about the involvement of the appellants in the offence from witnesses. However, we did not find

such statement of any witness in the police case diary incriminating the appellants. Apparently, it is seen that the appellants were arrested merely on

suspicion. Witnesses Kishor Sirpali, Gopinath Chetry, Tara Powrel and Giriraj Mahanta have deposed about the confessions made by the appellants of

committing the murder of Bhim Bahadur because he had seen them stealing bamboos and had threatened to divulge their stealing to the villagers. But

these witnesses have also admitted that the confessions were made in the Police Station in the chamber of Officer In-charge. It is well settled law

that Sections 25 and 26 of the Evidence Act must be construed strictly. Therefore, by operation of Section 26 of the Evidence Act, the confessions

made by the appellants while they were in the custody of police cannot be proved against them. This being the legal position, the trial court ought not

to have acted upon such extra judicial confessions of the appellants made in the presence of police at the Police Station. Hence, the confessions are

apparently not admissible in evidence and could not have been acted upon.

In view of the above, we hold that the appellants are not guilty of the offence charged. They are accordingly acquitted and be released from jail.

The appeal is allowed.