STATE OF ASSAM Vs. MANIK CHANDRA DEY

JUDGEMENT

(1.) The accused Manik Chandra Dey has been convicted under S.302 I.P.C. by the learned Deputy Commissioner, North Cachar Hills in Sessions Case No. 2 of 1976 and sentenced to suffer imprisonment for life. The learned Deputy Commissioner exercised the powers of the Sessions Judge, under the Rules for Administration of Justice in North Cachar Hills District. The learned Deputy Commissioner has made this Reference as required under R.14 of the "Rules for the Administration of Justice in North Cachar Hills District" for confirmation by this Court as to the conviction and sentence passed by him. Earlier, a Reference was made to this Court but by the order dt. 26-2-80 in Criminal Hill Reference No. 1 of 1977 this Court remanded the Reference to the learned Deputy Commissioner to examine the Magistrate who recorded the confessional statement to prove the confession in accordance with law and to dispose of the case keeping in view the observations made by this Court. The learned Deputy Commissioner, in compliance to the direction of this Court, summoned the Magistrate and recorded his evidence and accepted the confessional statement as recorded by the said Magistrate. Thereafter, the learned Deputy Commissioner heard the parties and disposed of the case which resulted in the same findings arrived at in its former decision meaning thereby, that the conviction and sentence of the accused-appellant was not disturbed. As the Reference has been made by the learned Deputy Commissioner, it has been registered as Criminal Hill Reference No. 1 of 1983. As the appellant could not engage counsel to represent his case, this Court appointed Dr. M.K. Sarma, learned counsel, as Amicus Curiae to represent the appellant. However, as Dr. M.K. Sarma is not available, he entrusted the brief to Mr. A. Roy, learned Advocate to act as Amicus Curiae and to represent the case of the appellant with the permission of this Court. We have also heard Mr. A.R. Paul Mazumdar, the learned Public Prosecutor, for the State. Mr. Roy, during the course of argument has submitted the following contentions : (1) That the conviction and sentence inflicted upon the appellant are liable to be set aside on the ground that there is no eye witness to the occurrence and the prosecution relied upon the weak evidence incapable of connecting the guilt with the accused. (2) That as there is no direct evidence, the prosecution has relied upon the evidence of the mother of the accused, P.W. 2, the brother of the accused, P.W. 4 and one neighbour, P.W. 1. We were led by Mr. Roy to the evidence of the 4 witnesses. On going through the evidence as submitted by Mr. Roy, it appears that the so called confessional statement of the accused before the witnesses, namely, P.Ws. 2, 3 and 4, there is no other substantial corroborative evidence to support the prosecution. (3) The next submission of Mr. Roy is that though the confessional statement was recorded by the Magistrate and this Court directed to take the evidence to have better proof for the purpose of prosecution, yet, that confessional statement alleged to have been recorded by the Magistrate and proved by the prosecution in the case cannot be accepted as corroborative evidence at all inasmuch as while recording the statement of the accused under S.313 Cr. P.C. the learned trial Court did not put to the accused any question about his confessional statement stated to have been recorded by the learned Magistrate. Referring to the implication of the provision of Section 313, Cr. P.C. Mr. Roy submits that if that part is omitted to be put to the accused, that cannot be taken into consideration by the Court and that part of the story should be totally kept out of consideration. Therefore, if that be the position in law, the further submission of the learned counsel is that there is no confessional statement nor there is any direct evidence to help the prosecution to prove the guilt of the accused beyond any shadow of doubt. The learned counsel for the appellant has drawn our attention to several decisions of the Supreme Court as well as of this Court. It may not be necessary to refer all those decisions placed before us by Mr. Roy because only few supporting decisions would be enough for our purpose on this point. The learned counsel has referred to us the decision of the Supreme Court rendered in "Sharad v. State of Maharashtra", (AIR 1984 SC 1622). Dealing with the provisions of Section 313 Cr. P.C. their Lordships had observed and ruled that the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration. We would like to quote the observations of their Lordships in Sharad (supra) as quoted in paras 142, 143 and 144 to the effect :

(2.) The same point also came up for consideration on several occasions in this Court. Reference is made to the case of "Faizul Ali v. State of Assam" reported in (1983) 1 Crimes 218. It was held by this Court that omission to put the question of vital importance to which the accused is reply for his defence is fatal and that cannot be taken into consideration either to add assistance to the prosecution or to use as a supporting corroboration to the testimony of the witnesses. Therefore, according to Mr. Roy if that part is omitted from consideration, the next question would be as to whether there was any extra-judicial confession which could be sufficient to base the conviction of the accused. In this context our attention has been drawn by Mr. Roy to the earlier decisions of this Court remanding the Reference to the learned Deputy Commissioner. In this context it is submitted that in the earlier Reference these evidences were available regarding extra-judicial confession. But, the Court, while scrutinising the evidence as well as the impugned judgement, did not consider those evidences to be sufficiency to convict the accused and as such the Court remanded the case back to have better evidence relating to the confessional statement as recorded by the Magistrate.

(3.) The next submission of Mr. Roy is that the evidence of P.W. 2, the mother of the accused, cannot be believed to be true in respect of the so called extra-judicial confession and/or the confessional statement stated to be made by the accused to her. It is submitted that the categorical statement of P.W. 2 is that the accused came to her for the first time and informed her about his wife who was lying in a state of 'fit' but did not utter a single word that he was the author of the offence. Therefore, the evidence of P.W. 2 that the accused came and confessed to her cannot be believed. In the same line, it is submitted, that the evidence of P.W. 3, also cannot be believed on the basis of the evidence of P.W. 4 who has stated ........." Lakhan caught Manik and brought him to his house at about 9 p.m. and there, at his house, Lakhan tied him down with the leg of a cot after Manik admitted in their presence that he had killed his wife. "It is also stated that sometimes Manik behaved like a mad man. Same version was stated by P.W. 2. "That sometimes Manik used to lose the balance of his mind." Manik was tied down by them because he had lost balance of his head on that night. The learned counsel has drawn out attention to the evidence only to show that the accused was tied up and he had no mental balance. Therefore, if any such alleged confession was made before these witnesses, that cannot be said to be made freely and voluntarily. Referring to the decision as reported in AIR 1974 SC 1545 (Jagta v. State of Haryana) it is submitted by the learned counsel that the evidence about an extra-judicial confession is in the nature of things a weak peace of evidence. If the same is lacking in probability as it is in the present case, there would be no difficulty in rejecting the same. In the State of U. P. v. M.K. Anthony" (AIR 1985 SC 48, their Lordships placed reliance and reiterated the decision rendered in Jagta v. State of Haryana (supra). It was observed "before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. In this context, Mr. Roy submits that it is not a known as to what was the actual' words used by the accused and the stereo type statements have been recorded in the evidence of all the P. Ws. relating to the so called extra-judicial confession. Reference may be made to the reported case of "Heremba Brehma v. State of Assam", AIR 1982 SC 1595. The learned counsel referred to us the paras 9 and 18 of the judgement rendered in "Heremba". In para 18, their Lordships observed "that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed and it would not be possible to accept in toto extra-judicial confession as stated by the witnesses."