Subhash Kurmi vs State of Assam

V.D. Gyani, J.—This appeal is directed against the judgment dated 16.2.94 delivered by Sessions Judge, Cachar, Silchar in Sessions Case No. 109/92, thereby holding the Appellant guilty of offences punishable u/s 457 / 380 / 302 IPC and sentencing him to undergo imprisonment for life with fine of Rs. 5,000/- for offences punishable u/s 302 IPC; one year''s R.I, for offences punishable u/s 457 IPC and a fine of Rs. 500/- and similar punishment for offences u/s 380 IPC, in lieu of payment of fine the Appellant has been sentenced to undergo different terms of imprisonment for a period of two years for non-payment of fine of Rs. 5,000/- and two month''s R.I. for non-payment of fine of Rs. 500/- as imposed by the trial Court for offences under Sections 302 / 457 and 380 IPC.

Prosecution case was - the Appellant at the time of occurrence was aged about 19 years as approximated by the Court (while recording his statement u/s 313 Code of Criminal Procedure 16 years as claimed by the Appellant) was a tea garden labourer. He was carrying a love affair with the daughter of the deceased. This girl Monika, examined as P.W. 12 was a minor her age at the time of her deposition was about 12 years on Court''s assessment, while she claimed to be 15 years. She had studied upto 5th standard. It is the prosecution case that the accused used to tease her, he even proposed to marry her. This proposal was rejected by P.W. 12. He even placed a steel ring and comb underneath the pillow of Monika, once she was dragged by I means of a ''Gamocha''. The matter was reported to her father who had chastised I him once. When she was dragged she raised alarm, the Appellant was beaten up by Monika''s father. After this incident she was shifted to Kalinagar where she stayed with her uncle. Once while returning from the tea garden where she was employed, the accused happened to meet her and asked her to return to Dumurghat. The reply jiven by Monika was-

I pretended that I would not go as I had a quarrel with my father.

The accused persisted if she would return to Dumurghat and she emphatically refused it was at that stage that the accused held out a threat saying that he would see her father. The narration of this background of events has become necessary as the case and the Appellant''s conviction is solely based on circumstantial evidence. Now coming to the fateful night, of night intervening 24th and 25th of June, 1992, around 1-30 P.M. a thief entered the house of informant Mohan Hazam''s younger brother Alok, the deceased who raised alarm when he was hit by the thief with a sharp edged weapon, the victim died immediately after the attack. P.W. 8 lodged an ''Ejahar'', Ext. 2 at Udharband Police Station and the gist of this Ejahar has been quoted above. The scribe of this Ejahar is P.W. 3, Nandadulal Chana. On the basis of this report a case under Sections 457 / 380 / 302 IPC was registered and taken under investigation. P.W. 15 is the I.O., who received the Ejhar at 8-30 A.M. next day morning, that is, 25th. He visited the place of occurrence, held an inquest on the dead body of Alok. Its report is Ext. 1. Seized a ''Katha'' (quill), said to be blood stained as per Ext. 5. Some portion of the broken reeds were also seized as per Ext. 6. The dead body was forwarded to the medical college for post-mortem examination. P.W. 16, performed the autopsy.

The accused was taken into custody on 27.6.94, around 1-20 P.M. from the factory of Urrunabond T.E. What followed thereafter, can be best described in the words of the I.O. himself, 35 it has a material bearing on the appreciation of evidence by the trial Court:

I interrogated him at the police station and he confessed his guilt relating to his love affairs with the daughter of the deceased, stabbing of the deceased and stealing of utensils and concealment of the stolen articles, the weapon of assault etc. I recorded the statement of the accused in this regard. Ext. 15 is the statement of the accused and Ext. 15(1) is my signature (under Objection).

Certain recoveries, such as, weapon of attack, utensils etc. are claimed to have been made at the instance of the accused, even photographs taken. It is significant to note that the attesting witnesses to this seizure Memos Ext. 3 and 4, have been examined as P.W. 3 and 5 by the prosecution. Ext. 3 relates to identification of utensils by Shakar Hazam. These are all articles of daily common household use. Ext. 4 has some bearing so far as the recovery of weapon of attack by the accused is concerned, and it has been made use of by the trial Court for basing its order of conviction. The body of this Ext. 4 is reproduced hereinunder for ready reference as it would also facilitate the applicability of Section 27 of the Evidence Act.

SEIZURE LIST

Ext. 4 Seen,

Sd/- Illegible Sd/- Illegible

Sessions Judge, C.J.M.

Cachar 29.6.92.

I, S.I., P.S. Das, O/C Udharband P.S. accompanied by wits. on being led and shown by arrested accd. Sri. Subhas Kurmi do hereby seize the following in connection with the above noted case from a thin bush on the southern side of the house of Smt. Lilabati Hazam W/o. (L) Ram Gobin Hazam of Doyapur Pt. I.P.S. Udharband in presence of the below signed witnesses.

Description of seized articles:

One ''Bhujali'' (a curved chopper) in the wooden handle. Length is about 16.

Witnesses:

Sd/- Nandadulal Chanda Ext. 4(1) Sd/- Illegible Sessions Judge, Cachar.

Sd/- Sri. Budhu Kurmi Ext. 4(2) Sd/-Illegible, Sessions Judge, Cachar.

Sd/- T.I. of Lilabati Hazam.

Sd/- Sri. Sankar Hazarn Ext. 4(3) Sd/-Illegible, Sessions Judge, Cachar.

Sd/- Sri.Tamal Deb, S/o Late Nagendra Chandra Deb, A resident of Dayapur Part-I.

Sd/- R. Bhattacharya (Studio Pradip)

Sd/- Subhash Kurmi Ext. 4(5) Sd/- Illegible, Sessions Judge, Cachar Sd/- P.S. Das, 24.6.92.

Ext. 4(4) Sd/- Illegible, Sessions Judge, Cachar.

On completion of investigation the accused Appellant was charge-sheeted and tried on the above three counts u/s 302, 457 and 380 IPC of which he has been found to guilty by the trial Court. The charge so far as it relates to Section 457 IPC needs to be reproduced since while arguing, the learned Public Prosecutor appearing for the Respondent State had made an attempt to split up Section 457 in two parts, one relating to lurking house trespass at night and the other, which is separated by the proposition, house breaking by night. Academically speaking, the learned Public Prosecutor was right in his submission but on facts the charge as framed by the trial Court does not support him. It was not a case of house breaking by night as already quoted above, the charge clearly states that the accused committing lurking house trespass by night entering the house belonged to Alak Hajam. There is not even a whisper that it was a case of house breaking by night and the evidence adduced by the prosecution pertains to house breaking and the conviction as recorded by the trial Court is also based thereon. This aspect of the matter will be dealt further at a later appropriate stage. As has also been noted by the trial Court although as many as 16 witnesses were examined by the prosecution, none of them is an eye witness to the occurrence. The case hinges on circumstantial evidence. The defence stand taken by the accused Appellant was one of plain denial of his complicity in the commission of the offence. The trial Court further found him guilty on all the three counts and sentenced him as noted above. Hence this appeal.

Learned Counsel appearing for the Appellant has levelled a three pronged attack on the conviction as recorded by the trial Court. Firstly, the trial Court without grasping the essential ingredients of the offences charged has convicted the Appellant, which is totally illegal. The principles governing appreciation of circumstantial evidence though elaborately referred to with reference to certain reported cases but has not been correctly applied to the facts of the present case and lastly the procedural safeguards as engrafted in Section 27 of the Evidence Act and Section 313 Code of Criminal Procedure have been conveniently ignored by the trial Court although a large number of authorities on Section 27 have also been referred to in the impugned judgment.

Mr. Goswami, learned Public Prosecutor appearing for the Respondent State has, on the other hand, maintained that the conviction as recorded by the trial Court is well supported by evidence on record. The discrepancies or irregularities do not go to the core of the matter. They are superficial in nature and can be cured so far as offence u/s 302 IPC is concerned, he urged that in view of the circumstances noted by the trial Court, the conviction can not be said to be bad in law or based on insufficiency or no evidence.

In view of the rival contentions advanced at the bar, it would be pertinent to note the pieces of circumstantial evidence relied upon by the trial Court for basing its order of conviction. The learned Judge of the trial Court has rightly noted in paragraph 7 of the impugned judgment that the case solely depends on circumstantial evidence. What follows thereafter is numerous reference to reported cases and ultimately the learned Judge summarises the circumstances in the instant case which go against the accused. The first circumstance is the love affair of the accused with the daughter of the deceased and the unsavoury incident resulting therefrom. The second circumstance is absence of the accused from his place of employment and the last which the learned Judge describes as important circumstance is the so called statement said to have been made by the accused before the I.O. Taking up these circumstances either cumulatively or severally on their face value and treating them as established, although the evidence on the point is rather slander and shaky, it remains to be seen whether these circumstances are ready incriminating in nature so as to unerringly point to the accused mid none else than the accused as perpetrator of the crime? The first circumstance enumerated is the alleged love affair between the accused and the deceased daughter Monica, aged 12 years. While treating it as an incriminating circumstance, the learned trial Judge has failed to notice the time gap. He jumps to the conclusion that the accused carried a grudge for being chastised by the girl''s father, as also his own. If the statement made by the accused u/s 313 Code of Criminal Procedure is any indication, infact it was he who when proposed by the girl''s father refused to marry her and one finds an indication in the statement of P.W. 12. Monika, who on being asked by the accused, pretended the use of the world ''pretended'', is worth noting as to why she should pretend. The learned trial Judge does not advert to this aspect of the matter. Assuming that there was such an affair, the incident as claimed by the prosecution having taken place the accused, a young boy of hardly 16 and 17 years age, on the fateful night, intervening 24th and 25th June, whether he carried the grudge to such an extent as to commit house breaking, that too without carrying any instrument or appliance of house breaking and instead of doing anything to his beloved, carrying a bundle of utensils etc. and throwing them open beside a pit so as to be recovered (sic) just next day, the story as brought out by the prosecution in face of the charge of amorous relationship between the daughter and the accused, is rather unnatural. There is no eye witness that it was the accused who hit the deceased. This conclusion is solely based on the circumstance that it was the accused who was having a love affair with the deceased''s daughter. The I.O. in his statement has stated that he took up the boy form his factory on 27th midnight around 1-30. What prompted him to visit the factory and taking the boy into custody? The FIR is silent, it does not name the accused. The I.O. does not say in his evidence that while recording a statement during investigation the name of the accused was revealed by someone. In fact, steps taken by him in the course of investigation, right from the moment he visited the spot till the despatch of the dead body and taking the accused into custody, there is no reference at all to his recording of statement u/s 161 Code of Criminal Procedure to any of the witnesses as already quoted above. He was interrogated by the I.O. before whom he confessed his guilt, as claimed by P.W. 15, the I.O. and surprisingly enough, noted by the learned trial Judge as the most important circumstance of making a statement before the I.O. This reveals the approach of the learned Judge and the trial Court and how flagrantly violative of basic principles of law of evidence and statements made to the police during the course of investigation particularly a statement made by the accused. It betrays rudimentary knowledge. The Court finds a circumstance which on the face of it is inadmissible as the "most important circumstance." A mere glance at Section 25 of the Evidence Act would have revealed to the learned Judge that the circumstance which he treats as the most important one was in fact and law absolutely inadmissible. The plain language of Section 25 of the Evidence Act does not adroit of any scope or doubt or ambiguity so as to include a confessional statement made by an accused to the Investigating Officer. This piece of evidence used as a most important circumstance ought to have been rejected at the very outset. The I.O. should not have been allowed to depose about the alleged confession made by the accused and unduly burden the record. It is not only the statement made by the accused, even the seizure memo Exts. 3 and 4 have been described in extenso by the I.O. as if these seizure memos are in the nature of substantive evidence.

It would not be out of place to deal at this stage itself the recovery said to have been made at the instance of the accused. It needs to be noted that they are in pursuance to the confessional statement as claimed by none else than the I.O. himself that these rivalries of the weapon and the utensils are claimed to have been made at the instance of the accused.

Section 27 of the Evidence Act is in the nature of an exception to the preceding Section 25 and 26. There is no such statement placed on record as claimed by the I.O. that the accused made certain statement leading to the discovery of fact although law does not require recording of such statement made by an accused in police custody but as has been observed by the Calcutta High Court in Panchu Gopal Das Vs. The State, that it is proper for the prosecution if they want to adduce evidence u/s 27 to prove by production of written record only so much of the statement as led to the discovery of the article. An oral statement without corroboration by any written record of any such statement contemporaneously made even if admissible is unsafe to rely on. The learned trial Judge has fallen into a patent error of law in allowing the statement to go on record in a whole hog manner without even considering, much less test, how much and what part of the statement was relevant and which resulted if discovery of a fact, it is only such part of the fact which is admissible u/s 20 of the Evidence Act. While the trial Judge has admitted the whole statement without making any attempt and no such attempt was possible as (sic) police did not prepare any written record of the statement made by the accused. Even then law demand and logic dictates that the trial Court should not have allowed the statement by the accused to go whole hog on record. Such statement per se not inadmissible when brought and at times project the mind of the Court. It is the duty of the trial Court to see that they do not play into the hands of the ingenuity, at times indulged in by the investigating agency. It was for this reason that the apex Court has sounded a word of caution that the Court must guard against the police ingenuity in introducing inadmissible material on record. It is here that the learned trial Judge even while making elaborate reference to other judgment has failed to notice the basic requirement of Section 27.

Coming to the evidence on point, there are two witnesses, P.W. 3 Nandadulal Chana and P.W. 5 budhu Kurmi. A mere reading of the statement of P.W. 3 would reveal the farce of recording of a statement u/s 27 of the Evidence Act. The witness categorically stated:

I learnt from O/C that Subhas admitted his guilt. I did believe it at first. Then O/C brought Subhas before me from lock up. Then O/C told Subhas to tell the truth. Subhas told in presence of all of us that he killed Alak Hazam, with a Bhujali. He also told on being asked that he would be able to show the Bhujali. He also told that he had stolen some utensils from the house of Alak Hazam at the time of committing murder and would be able to show them which he kept concealed in next compound.

A fact already discovered can not be re-discovered. Section 27 is not meant to defeat Section 25 or 26 of the Evidence Act. It is not a question of belief of a witness, if the fact had already been discovered there was no point in mechanically getting it repeated before or in presence of other witnesses. This reduces the whole exercise to nothing but a farce. The same is borne out front the evidence of another attesting witness Budhu Kurmi, who in his cross-examination has admitted:

Daroga did not tell me anything. Then he says that Daroga told us that the accused will show the Bhojali.

This clearly goes to show how mechanically and thoughtlessly Section 27 has been applied by the Investigating Agency to be false, it may not necessary to lead to any discovery of articles but in the instant case, the police was sure that recovery was going to be made therefore a Photographer was arranged? While all these external aspect of recovery are there, the learned Judge failed to see that it was in pursuance to disclosure made by the accused even if the recovery is to be believed, it itself missing and what has been allowed to go on record is in fact inadmissible in law.

The recovery of utensils at the instance of the accused was from a point near the house of Lilabati, a neighbour of the deceased whose house was contiguous to that of the deceased as stated by him. It is the same house, homestead and separate house where a thief, having committed theft of such articles of daily use soon after theft, murder, scattered these articles just in the vicinity of the place of occurrence and this recovery was made two days after the incident till then all these articles were lying near the pond. There is not an iota of evidence adduced by the prosecution to show that the point was such a place where these articles were not accessible to others and the articles were steal in such a manner as not to be visible to the users of the pond or the passers-by. Such recoveries from open public places, hardly helped the prosecution. As stated by these witnesses, the place wherefrom the ''Bhojali'' was recovered is beside a wall hardly 10-15 feet away from the Courtyard of the deceased. There is yet one more point relating to the recovery which needs to be considered. It is the taking of photograph by the police, the accused handcuffed and by his gesture pointing towards the weapon as seen lying in Ext. 7. The learned trial Judge has not considered the question whether the photograph, Ext. 7, showing the accused in gesture towards the ''Bhojali'' is admissible in evidence. The words in such statement as occurred in Section 162 Code of Criminal Procedure cover not only written statement but also oral statements as well including gesture. A rough sketch map prepared by Sub-Inspector of Police on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit and also places where the witnesses were standing at the time of incident has been held by the Apex Court to be inadmissible u/s 162 Code of Criminal Procedure (See Tori Singh Vs. The State of Uttar Pradesh, ) . In the instant case instead of preparing a sketch map there is a photograph showing the accused pointing to certain articles. On the parity of reasoning a photograph or a sketch map hardly makes any difference. It is equally hit by Section 162 Code of Criminal Procedure as also Section 27 of the Evidence Act on its proper construction in the light of Pulkuri Kottayya v. King 1947 P.C. 67 , relied upon in Earabhadrappa Vs. State of Karnataka, and therefore inadmissible in evidence. This practice of taking accused''s photographs pointing towards certain incriminating articles needs to be deprecated in no uncertain terms. This reduces the process of investigation which ought to be a search for truth to a mere mockery and artificiality. The photograph was taken by one private photographer under direction of the I.O. Not only that the Photographer has not been examined, even the negatives have not been placed on record. Although two negatives are on record but no attempt whatsoever has been made to prove the same. The I.O. has in his cross-examination admitted that the negatives of the exhibited photographs were not available with him. It is also not clear as to who placed these negatives on record and it relates to which particular photographs, when the trial Court has allowed the photographs to be exhibited in evidence in contravention of the basic rules.

That this state of affairs "of the most important circumstance", according to the trial Court, the circumstance cannot be said to have been legally established so as to enable any Court to make use of it. On the other hand, it goes to prove faulty and partisan nature of investigation. A torch was said to have been used by the accused when he entered the house of the accused. P.W. 1, Constable, is a witness to its seizure who has testified to the effect that he has witnessed the seizure of torch by P.W. 15 when the accused was taken into custody, as stated by P.W. 15. He was picked up by the I.O. from his place of work, the factory of Uminabandh T.E. Why should a worker carry a torch to the factory and keep it with him? Ext. 10 is the seizure list it is equally hit by Section 162 Code of Criminal Procedure in view of Touri Singh judgment (Supra). The last incriminating circumstance relied upon by the learned Judge is absence of the accused from his place of work on the night intervening 24th and 25th, as testified by P.W. 7. The accused was casual worker in the tea garden. His absence or presence depends on the availability of work being provided. Secondly, it is also worthwhile to note the circumstances in which the Attendance Register was procured by the police. It is not seized on the day of taking the accused into custody or on the day of incident itself, the Attendance Register was verified by the police. Letter dated 14th of July addressed to the Officer-in-Charge of the Police Station, Ext. 9, by Manager of the Tea Estate itself refers to telephonic discussion between the two on the preceding day that the Attendance Register was sent to the Police Station. What was that Telephonic discussion is anybodies guess. The I.O. does not say a word about it, what prevented him from seizing the Attendance Register in the course of regular investigation. What prompted him to take such telephonic discussion and if required to do so why not placed the fact on record as to what transpired between the Manager and the I.O. on telephone. This delay in seizure of the Attendance Register is not even attempted to be explained by the investigating agency and the learned trial Judge has committed error to consider this inherent infirmity in documentary evidence, namely the Attendance Register which is highly tainted and suspicious document.

The circumstances sought to be relied upon are not established at all. The learned trial Judge has himself refers to several judgments of the Supreme Court bearing on circumstantial evidence. The principles are well settled. Testing these circumstances from any angle, they can neither be said to have been duly proved nor afford such a chain as to unerringly point to the accused as the perpetrator of the crime. The finding as rightly argued is based on total misreading and mis-appreciation of evidence. The inherent infirmities have either escaped notice or not being noticed by the learned trial Judge. The essential ingredients of Section 457; IPC are:

In order to constitute a house-trespass the accused must take some active means to conceal his presence from someone who has a right to exclude him. A lurking house trespass by night must have been committed in order to the committing of any offence, punishable with imprisonment. There must be an intention on the part of the accused to commit an offence. punishable with imprisonment.

Apart from this the essential ingredients of criminal trespass are, which much be proved by the prosecution:

Entry into or upon property in the possession of another.

If such entry is lawful, then unlawfully remaining upon such property.

Such entry or unlawful remaining must be with intent

(a) to commit an offence; or

(b) to intimidate, insult, or annoy any person in possession of the property.

It would be pertinent to note that there is not an iota of evidence as to what preparation was made by the accused to conceal himself while committing the lurking house trespass by night. This making of preparation by the accused is one of the essential ingredients of the offences charged and the learned Judge does not even advert to this essential ingredients even while holding the accused guilty of the charge u/s 457 IPC. The same holds good in case of charge u/s 380 IPC. Its essential ingredients are:

Dishonest intention to take property;

the properly must be movable;

it should be taken out of the possession of another person;

it should be taken without the consent of that person; and

there must be some moving of the property in order to accomplish the taking of it.

None of these ingredients can be said to have been proved within the meaning of Section 3 of the Evidence Act.

Except for the evidence of recovery of stolen articles as already discussed above, there is absolutely no evidence on record to show that it was the accused who had dishonestly carried away the property. No one has seen him carrying the property and the recovery part of it at the instance of it has already been discarded alter elaborate discussion. The learned trial Judge would have done well to go through the essential ingredients of the offences charged before holding the accused guilty thereof.

In view of the foregoing discussion, tins appeal deserves to be allowed and it is accordingly allowed. The conviction and sentence as recorded by the Trial Court is liable to be set aside, it is accordingly set aside. Fine, as imposed, if deposited or paid, be refunded to the Appellant. He be set at liberty forthwith.