JUDGMENT
I.A. Ansari, J.
1. The judgment and order under challenge in the present appeal was passed on 30-12-1997, by the learned Additional Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. 105 (S)/97, convicting the accused-appellant under Section 302, I.P.C. and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 2000/- and in default, to suffer rigorous imprisonment for a further period of 6 months.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows. At the time of occurrence, the appellant used to live with his brothers in a house, which had a common courtyard with the house of deceased-Monorama. On 22-4-1997 at about 5.30 p.m., the accused- appellant, Dipak Bhattacharyya, gave blows with a dao on his grand-mother, Sushama Ray, and her elder sister, Monorama Bhattacharyya, at their house and caused their death. The appellant fled away from the place of occurrence, came to Sootea Police Station with the said dao in his hand and surrendered there. The dao produced by the accused was seized by Seizure List (Ext. 4) and a G.D. entry was made in this regard. Sootea Police Station G.D. Entry No. 123, dated 22-4-1997, being the said entry. Thereafter, Sri Sadhan Roy, son of deceased-Sushama Ray, lodged a written Ejahar (Ext. I) at the said Police Station and treating the same as First Information Report, police registered Sootea P.S. Case No. 40/97 under Section 302, I.P.C. against the accused-appellant. During the course of investigation, police visited the place of occurrence and held inquest over the said dead bodies. The accused-appellant made a judicial confession and upon completion of investigation, police laid charge-sheet against the accused-appellant under Section 302, I.P.C.
2. When the charge framed under Section 302, I.P.C. was read over and explained to the accused-appellant, he pleaded not guilty thereto and claimed to be tried.
3. In all prosecution examined as many as 9 witnesses including the Investigating Officer. The accused was also examined under Section 313, Cr. P.C. and in his examination aforementioned, the accused denied that he had committed the offence alleged to have been committed by him, the case of the accused being, in brief, thus. The relationship between the accused and the deceased used to be strained. The accused used to suffer from insanity. At the relevant time, he was incapable of thinking. He does not know what he had done. He made the judicial confession, because of beating received at the hands of the police. No evidence was, however, adduced by the defence.
5. On conclusion of the trial, learned trial Court found the accused-appellant guilty of the charge framed against him and convicted him accordingly and passed sentence against him as hereinabove indicated.
6. We have perused the records. We have heard Mr. T. J. Mahanta, learned amicus curiae, and Mr. P. Bora, learned Public Prosecutor.
7. In this case, P.W. 3 (Satyajit Roy Choudhury) and P.W. 4 (Smt. Priyanka Choudhury) have been examined as eye-witnesses to the occurrence. P.W. 1 (Sadhan Roy), P.W. 2 (Samrat Roy Choudhury) and P.W. 5 (Satyajit Roy) are the reported witnesses. P.W. 6 (Bhaskarjyoti Bora) is a witness to the alleged seizure of the weapon of assault, P.W. 7 (Dr. Atul Saikia) is the doctor, who performed autopsy over the said dead bodies, P.W. 8 (Animesh Das) is the Investigating Officer of this case and P.W. 9 (D. Mech) is the Judicial Magistrate, who recorded the judicial confession of the accused.
8. We, first, deal with the evidence of P.W. 7, who is the doctor and who performed post-mortem examination over the two dead bodies. This witness has deposed that on 23-4-1997, he was posted at Tezpur Civil Hospital and on that day, he performed postmortem examination on dead bodies of Sushama and Monorama. According to P.W. 7, his findings on holding post-mortem examination on the dead body of Sushama were as follows :
Healthy female body. Rigor morties present.
Injuries :
No. 1 Sharp cut injury on left side of the fact, size 5″ x 1″ x bony deep.
No. 2 Sharp cut injury across the right ear, size 5″ x 1″ x bony deep.
No. 3 Sharp cut on the root of the neck, size 5″ x 1″ x bony deep.
No. 4 Sharp cut over the middle of the right side of the neck, size 2″ x 1″ x bony deep.
No. 5 Sharp cut on the right side of the temporal region, size 2″ x 1/2″ x bony deep.
No. 6 Sharp cut in the abdomen, left to the umbrelical, size 2″ x 1″.
Intestinal coil come out through injuries.
No. 7 Through injuries on the right shoulder 4″ x 1″x bony deep.
Other organs were healthy. All the injuries were ante-mortem in nature. Cause of death was due to haemorrhage and shock as a result of injuries sustained.
9. P.W. 7 has also deposed that on holding post-mortem examination on the dead body of Monorama, he found as follows :
Female body. Rigour morties present.
Injuries :
No. 1 Sharp cut on the right shoulder, size 2″ x 1″ x bony deep.
No. 2 Sharp cut on left parietal region, size 41/2″ x 1/2″ x bony deep.
No. 3 Sharp cut on left temporal region, size 21/2″ x 1/2″ x bony deep.
No. 4 Traverse sharp cut at the root of neck through the middle of the right ear, size 61/2″ x 1/2″x bony deep.
No. 5 Sharp cut on right occipital region 31/2″ x 1/2″ x bony deep.
Brain matters exposed through the cut marks. Other organs were normal.
All the injuries were ante-mortem in nature. Cause of death was due to shock and haemorrhage as a result of the injuries sustained.
10. We have carefully scrutinised the cross-examination of P.W. 7 and we find nothing to discard his evidence. The evidence so given by P.W. 7 shows that the said two deceased female persons sustained multiple cut injuries, which could have been caused as a result of giving blows by a sharp-cutting weapon, such as, spear or dao, and that the shock and haemorrhage resulting from the injuries, so sustained, had led to the death of the said two deceased.
11. Keeping in view the above aspects of the medical evidence on record, we, now, come to the evidence of the two eye-witnesses. According to the evidence of P.W. 3, accused is his maternal uncle by relation and that the houses of the accused and that of Shankar (where P.W. 3 was present at the time of occurrence) shares a common courtyard.
12. Describing the occurrence, P.W. 3 has deposed that on 22-4-1997, at about 5 p.m., when he (P.W. 3) was watching T.V. inside the house of Shankar, he heard some heated exchange of words between the accused, on the one hand, and his grandmother, Sushama, and Priyanka (P.W. 4), on the other. When the quarrel intensified, P.W. 3 peeped through the window and found that the accused had hit Sushama with a spear like object making her fall down on the ground that at that very moment. Monorama came forward to offer resistance, but the accused hit her too with the same weapon. P.W. 3, then, ran to his maternal uncle Shankar’s shop and reported the occurrence to him. Accompanied by Shankar, when P.W. 3 came to the thana to give the information about the occurrence, they found the accused present at the thana showing the weapon and saying that he had killed two persons with the weapon. The police arrested the accused and leaving the accused at the thana police went to the place of occurrence with P.W. 3 and Shankar and on reaching there, police found the dead bodies of Sushama and Monorama lying at the courtyard. It is also in the evidence of P.W. 3 that the police seized the spear from the accused, Ext. 4 being the Seizure List in this regard. A close look at the seizure list (Ext. 4) shows that the police seized “An 18 inches long dao like double-edges spear with a bamboo handle on being produced by the accused himself at Sootea Police Station on 22-4-1997 itself.” i.e. on the very day of occurrence.
13. We have carefully scrutinised the cross-examination of P.W. 3, but we find that nothing could be elicited by the defence to show what this witness has deposed is nature or false.
14. What is essential to note in the evidence of P.W. 3 is that the evidence given by him to the effect that the accused, on his appearance at the thana, told the police that he had killed two persons with the weapon is inadmissible in law inasmuch as there is nothing in the evidence of P.W. 3 to show that his confession made by the accused had led the police to the discovery of any fact. What is, however, of immense importance to note in the evidence of P.W. 3 is that immediately after the occurrence, what he had witnessed was that the accused had himself appeared at the thana with a dao/spear like double edged weapon, the accused handed over the said weapon to the police and that the same was seized by police. In fact, while cross-examining P.W. 3, the defence did not even dispute that the accused had appeared at the thana with a dao, as deposed to by P.W. 3, and/or that the said weapon, on being so produced by accused, was seized by the police.
15. It is, no doubt, true that in his cross-examination, P.W. 3 has candidly admitted that he had not noticed, at the time of occurrence, as to the parts of their bodies, where Sushama and Monorama had sustained injuries. We are, however, of the view that in such tension-ridden moments as P.W. 3 has described, when P.W. 3 saw his grandmother and her elder sister being mercilessly assaulted by a spear like weapon, he (P.W. 3) may not be able to minutely notice the exact parts of their bodies, where his grandmother and her elder sister had sustained injuries.
16. What is, however, of some significance to note is that in his cross-examination, P.W. 3 has clarified that the Ejahar was prepared as soon as the accused had surrendered at the thana and that it was after the seizure of the weapon that the police had gone to the place of occurrence.
17. Turning to the evidence of the other eye-witness, namely, Smt. Priyanka Choudhury (P.W. 4), what we notice is that at the time of recording her evidence on 13-11-1997, she was 11 years of age. The occurrence, admittedly, took place on 22-4-1997. This shows that at the time of occurrence, she was barely 11 years old. Though the learned Sessions Judge has not put any question to this witness to elicit from her if she had attained sufficient maturity to understand the meaning and implications of the evidence that she was called upon to give and/or whether she was intelligent enough to answer the questions clearly and understand the questions put to her, we find from her evidence on record that she has given simple, consistent and coherent evidence. This goes to show that P.W. 4 had, at the time when her evidence was so recorded, developed sufficient maturity to understand the questions put to her and give replies thereto clearly.
18. In her evidence, P.W. 4 has deposed that the accused is her maternal made by relation. Sushama and Monorama were her grand-mothers, she (P.W. 4) lives in her maternal uncle Shankar’s house (i.e. where P.W. 3 was present at the time of occurrence) and that the accused too used to live in the some compound as that of her grand-mothers. Sushama and Monorama, and that they have a common courtyard. It is in the evidence of P.W. 4 that the occurrence took place on a Tuesday.
19. Describing the occurrence, P.W. 4 has deposed that on the day of occurrence, at about 5 p.m., she came back after playing, she washed her hands and feet, rubbed her face with a “gamocha” (hand-loomed towel) and while, she was wiping her face with the accused person’s “gamocha,” the accused murmuring. “You have called me a son of a bitch,” started beating her with a broom. She, then, cried out, whereupon her grand-mother, Sushama, came and offered resistence: The accused, then, hit her too with the broom. Sushama reacted by saying, “No one has hit me to this day. Now you have hit me with broom,” and ordered that the accused should not be served food in her house. The accused, then, brought a spear like dao and thrust it in Sushama’s belly. She fell down on the ground. At that very moment. Monorama also arrived there and she tried to offer resistence, saying, “What are you doing?” but the accused hit her too with the same weapon. On witnessing the assaults, P.W. 4 ran away out of fear. Carrying the weapon with him, the accused too felt and thereafter, police came.
20. A dispassionate scrutiny of the evidence of P.W. 4 reveals that the defence has not been able to shake her evidence. This position is, in fact, not disputed at the Bar. It is, no doubt, true that this witness has, admitted, in her cross-examination, that she would not be able to say as to what length of the weapon used by the accused was. What is, however, essential to note is that she has clearly deposed that she was unable to say as to what the length of the weapon was, because she did not have a good look at the weapon. In a situation, as P.W. 4 had been placed, it would not be very unnatural for a child not to remember the exact length of the weapon used. We, therefore, see no reason to give any importance to the inability of P.W. 4 to give the exact length of the weapon used.
21. Coming to the evidence of P.W. 1 (Sadhan Roy), we notice that this witness has deposed that deceased-Sushama was his (P.W. l’s) mother, the accused is son of his (P.W. 1’s) maternal uncle and that the thana is located in front of their house. Describing the occurrence, P.W. 1 has deposed that he heard a commotion in his house and someone said that Dipak (i.e., the accused) had hacked his (P.W. l’s) mother, whereupon he went to his house right away and learnt that his mother. Sushma Ray, and her elder sister, Monorama Bhattacharyya, had been hacked. P.W. 1, then, went to the thana and lodged an Ejahar there and he also found there that the accused had already surrendered to the police along with the weapon with which the accused had hacked, Ext. 1 being the Ejahar. It is also in the evidence of P.W. 1 that the accused and this witness live within the same compound, but the accused lives with his own brothers.
22. On a combined reading of the evidence of P.W. 1 and P.W. 2, it clearly transpires that on hearing about the occurrence, when P.W. 2 came to the place of occurrence, he found the dead bodies of the said two deceased lying smeared with blood at the place of occurrence. So far as P.W. 1 is concerned, when, on leering about the occurrence, he went to the thana, he found the accused present there.
23. Thus, though P.W. 1 and P.W. 2 may not be the eye-witnesses to the occurrence, their evidence corroborates the evidence of P.W. 3 and P.W. 4 that the place of occurrence was the courtyard of the house, where the deceased-Monorama and her sister, Sushama, used to live and though the accused lived in a separate house with his brothers, they all had a common courtyard and that the accused had surrendered at the thana with the weapon immediately following the occurrence.
24. As far as P.W. 5 (Satyajit Ray) is concerned, he is merely a witness to the inquest, which the police had over the said two dead bodies, and prepared inquest reports marked as Exts. 2 and 3.
25. So far as P.W. 7 is concerned, his evidence is that after hearing about the occurrence, he went to the thana to have a look at the dead bodies and on being asked by the police, he put his signature on the seizure list, which is Ext. 4. This witness’s evidence does not show that he had seen any weapon in the hands of the accused. His evidence does not help the case of the prosecution, but it does not weaken prosecution’s case either inasmuch as the evidence of P.W. 3, as already discussed above, clearly shows that the accused appeared at the thana with the weapon and the same was seized by the police, Ext. 4 being the seizure list in this regard.
26. On coming to the evidence of the Investigating Officer (P.W. 8), we notice that this witness has deposed that on 22-4-1997, he was posted at Sootea Police Station and on that day, the officer-in-charge of the said Police Station, on receipt of the Ejahar (Ext. I), registered as case and gave him the charge of investigation. This witness has also deposed that before receipt of the Ejahar, the accused with a dao in his hand had surrendered at the thana and had confessed to have cut two women to death. The dao was seized, when the accused was at the thana itself, Ext. 4 being the seizure list in this regard and that the accused had put his thumb impression thereon, Ext. 4(4) being the accused person’s thumb impression with endorsement made by him (P.W. 8). P.W. 8 has further deposed that he arrested the accused, inspected the place of occurrence and examined the witnesses, Ext. 2 being the inquest report of deceased-Sushama and Ext. 3 being the inquest report of deceased-Monorama. It is in the evidence of P.W. 8 that he prepared a sketch map of the place of occurrence, Ext. 6 being the sketch map and, then, he forwarded the accused to Court and on completion of investigation, he submitted charge-sheet.
27. What is essential to note in the evidence of P.W. 8 is that before the Ejahar (Ext. 1) was lodged with the police by P.W. 1, the accused had already appeared at the thana and surrendered before the police with a dao in his hand and that the said dao was seized from the accused, Ext. 4 being the seizure list. Though P.W. 8 has deposed that the accused had confessed before the police to have cut two women to death, this piece of evidence is inadmissible in law inasmuch as the same had been made before the police and did not lead to discovery of any fact. We, therefore, keep this piece of evidence excluded from the purview of our consideration. What, however, their witness’s evidence shows is that the accused had surrendered before the police immediately after the occurrence and before the Ejahar was lodged and what the accused had stated was recorded in the General Diary. This entry has not been proved. Situated thus, it is difficult to say that Ext. 1 is the First Information Report. Be that as it may, the fact remains that the evidence of P.W. 8 too lends credible corroboration to the evidence of P.W. 1, P.W. 3 and P.W. 4.
28. When we turn to the evidence of P.W. 9, who was then Judicial Magistrate, we find that this witness has deposed that he was a 1st Class Judicial Magistrate, at Tezpur, on 24-4-1997 and as ordered by the CJM, accused-Dipak Bhattacharyya was produced before him for recording of his confessional statement, but the statement could not be recorded on that day due to paucity of time and he, therefore, ordered that the accused be sent to judicial custody and be produced on 25-4-1997. The accused was accordingly produced on 25-4-1997 at 11.15 a.m. The accused was, then, questioned whether he would make a confession or not. When the accused said that he would make a confessional statement. P.W. 9 kept the accused in the chamber of P.W. 9 under the supervision of his Bench Assistant, Dhiren Baishya, and the implications of confessional statement were explained to the accused.
29. It is the evidence of P.W. 9 that no police personnel were present in the immediate vicinity of the accused. It is also in the evidence of P.W. 9 that the accused said that he was going to confess, as it was he, who had committed the crime. The questions in paragraph 5 of the confessional statement form were explained to the accused. The accused said that he had understood them all. No injury of any kind was found on the person of the accused. Being satisfied that the accused would confess on his own free will, he (P.W. 9) recorded the confessional statement of the accused and, then, he (P.W. 9) sent the accused to jail Hazot. According to P.W. 9, Ext. 10 is the confessional statement form, Ext. 10(2) are the searching questions and answers. Exts. 10(1) to 10(8) are his (P.W. 9’s) signatures. Ext. 10(9) is his memorandum with signature and that Ext. 10(10) is accused-Dipak’s signature. It is also in the evidence of P.W. 9 that Ext. 11 is the order in G.R. 538/97 and Ext. 11(1) is the signature of this witness and that Ext. 12 is another order and Ext. 12(1) is his signature.
30. From a careful scrutiny of Ext. 10, we notice that P.W. 9 had clearly asked the accused as to why he wanted to make confession and the accused unhesitatingly told him (P.W. 9) that he (accused) wanted to make the confession as he had committed the murder. This apart, the accused was also told by P.W. 9, according to what Ext. 10 reveals, that even if he (accused) did not make any confession, he would not be sent back to the police custody and the accused replied by saying that he knew this.
31. Nothing could be elicited from the cross-examination of P.W. 9 by the defence to show that the confession made by the accused was not voluntary and/or false and/ or when the accused made the confession before P.W. 9, he (accused) was not in sound state of mind. Far from this, the questions aforementioned, put to the accused, and the replies given thereto by the accused clearly shows that the accused was conscious as to what he was going to do and he made the confession on account of the fact that he was aware of the fact that he had committed the crime. The impression that the accused was conscious of the fact that he had, indeed, committed the crime is well reflected from his confessional statement itself. This confessional statement reads as follows :
“Since about a year and a half, my younger aunt (paternal), Sushama Ray and all other including even children, of the family had been hurling insults at me. They used to treat me as if I were a dog or a cat. When on the day of occurrence, my younger niece (sister’s daughter), wiped her feet with my “gamocha” after washing her hands and feet, I scolded her, asking why she had done so. I told her that she should wipe her body with a “gamocha” of her own. At that my aunt (paternal), Sushama, started rebuking me. At that time, I was engaged in brooming. At the scolding, my temper soared, picking up a dao, I hacked aunt Sushama in the neck. She fell down. After that, my younger aunt (paternal) Monorama came and shoved me by the neck as a result of which I got knocked against a wall of the house. I then hocked my elder aunt in the neck with a dao. After that, I left for thana, carrying the dao. The Officer-in-charge of the thana beat me up,”
32. Coupled with the above, it is also imperative to note that after the confessional statement of the accused was recorded, P.W. 9 asked the accused, in no uncertain words, if the accused had made the confession, because he had been beaten up by the police and the clear answer of the accused to this question was in the negative, “No, I have confessed, because I killed my aunts.” This shows that the confession made by the accused was not only voluntary, but was in a state of mind, when he was repentent for the act that he had done.
33. The confessional statement made by the accused, therefore, inspires confidence and clearly establishes that it was at the hands of the accused that Sushama and Monorama lost their lives as a result of assaults on them by a sharp-cutting weapon.
34. What crystallises from the above discussion is that the evidence of P.W. 3 and P.W. 4 convincingly proves that it was the accused, who had killed Monorama and Sushama, the two old ladies. The fact that the accused appeared with the weapon at the thana immediately after the occurrence even before P.W. 3 arrived at the thana further strengthens the belief that it was the accused, who had killed the two female persons aforementioned. The judicial confession on record also cements the case of the prosecution to the extent that it was the accused, who had caused the injuries on the persons of Monorama and Sushama and caused their death.
35. It appears from the trend of cross-examination of the prosecution witnesses that the defence made serious attempts to establish that there was standing dispute between the accused, on the one hand, and the said two deceased persons, on the other. The attempts, so made by the defence, remained unsuccessful inasmuch as nothing could really be elicited from the cross-examination of the prosecution witnesses to show that there was any kind of standing dispute between the two deceased and the accused.
36. Now, coming to the plea of insanity, which was taken by the accused and pleaded before us by the learned amicus curiae, it is essential to note that P.Ws. 1, 2, 3, 4 and 5 are close relatives of the accused. As far as P.W. 1 is concerned, the defence made no attempt to elicite from him if the accused used to suffer from any insanity at the time of the alleged occurrence. Even when P.W. 2 was examined as a witness at the trial, no attempt was made by the defence to elicite from him if the accused was insane at the time of the alleged occurrence. However, when P.W. 3 was being cross-examined, he replied to the questions put by the defence by saying that he did not know if the accused had been in Mental Hospital and/or if he was suffering from psychiatric problem. Except giving a broad suggestion to this witness that the accused had been suffering from mental disorder, no question that the accused had been suffering from mental disorder was put to P.W. 3. Similarly, while cross-examining P.W. 4, it was suggested to her by the defence that the accused had psychiatric problem, but even in the case of P.W. 4, the defence did not confront her with any material to show that the accused was, at the time of occurrence, suffering from any kind of insanity. Though in his cross-examination, P.W. 5 has admitted that the accused had been sent to Mental Hospital and he had been on drugs for mental disorder, nothing was elicited even from this witness to show that at the relevant time of occurrence, the accused was insane. Far from this, it surfaces from the evidence on record that the accused fled away from the place of occurrence and surrendered before the police with the weapon of assault. This shows that the accused knew what he had done and what consequences would ensue from his acts. Even when the confessional statement was recorded by P.W. 9, it became more than abundantly clear that the accused knew as to what he had done and that is why, he could graphically described how the occurrence had taken place before the Judicial Magistrate (P.W. 9).
37. In fact, in his examination under Section 313, Cr. P.C., the accused did not say that he had not killed Monorama and Sushama. What he stated was that he did not do so wilfully and knowingly and asserted that he was incapable of thinking.
38. Law on the subject of the plea of insanity of an accused is by and large well settled. The ocular evidence given by P.W. 3 and P.W. 4 were wholly corroborated by the medical evidence on record. This apart, even the judicial confession made by the accused receives credible corroboration from the evidence of the eye-witnesses to the occurrence as well as from the medical and other evidence on record.
39. Because of what have been pointed out above, we are firmly of the view that it was the accused-appellant, who had killed Sushama Ray and Monorama Ray by assaulting them with dao. The weapon selected by the accused, the parts of the body, which the accused chose to give blows on the said two female persons and the force with which blows were dealt with are all indicative of the fact and lead to the sole and only conclusion that the accused intended to cause nothing but death of the said two female persons. We are also firmly of the view that no such provocation was received by the accused-appellant at the hands of the said two deceased, which could bring the case of the accused within the exceptions to Section 300, I.P.C.
40. Considering therefore, the matter in its entirety, we are firmly of the view that the learned trial Court rightly found the accused guilty of the offence under Section 302, I.P.C. We see no reason to disagree with this finding.
41. In the result and for the reasons discussed above, this appeal fails and the conviction of the accused-appellant under Section 302, I.P.C. and sentence passed against him are hereby upheld.
42. Let the Superintendent of Jail, Tezpur, and the learned Sessions Judge, Sonitpur, Tezpur, be informed accordingly.
43. Send down the case records.