JUDGMENT
J.N. Sarma, J.
1. This appeal has been filed against the Judgment dated 26.6.2000 passed by the learned Sessions Judge, Darrang at Mangaldoi in Sessions Case No. 103 (D-M) of 1997. By the impugned Judgment the learned Sessions Judge convicted the accused/appellant to undergo imprisonment for life and to pay a fine of Rs. 500 in default, further rigorous imprisonment for one month.
2. The brief facts are as follows :- On 7.9.1996, the wife of one late Tania Boro lodged an ejahar before the Kharupetia Police Station to the effect that at about 10’O’ clock (night) on 6.9.1996 two accused persons, namely, Kanta Boro and Nabin Boro assaulted her husband Tania Boro on the road and he was hacked to death by means of a dao and sickle. On this allegation police registered a case under Section 302 of the Indian Penal Code against the person, namely Nabin Chandra Boro and investigated the same and on completion of the investigation charge-sheeted the case against the accused Nabin Chandra Boro only Under Section 302 of the Indian Penal Code. The learned Sessions Judge, Darrang at Mangaldoi framed a charge under Section 302 of the I.P.C. against this accused and explained the same to the accused person to which the accused pleaded not guilty and accordingly the trial commenced.
3. PW-1 is Bireswar Sarma. He is not an eye witness to the incident. He only wrote the ejahar as told to him by the wife of the deceased. But he gave the description of the brutality of the murder as he found the deadbody by the side of the road. PW-2 is the wife of the deceased. She deposed that after hearing a commotion, she went to the place of occurrence and found that her husband’s throat was cut. She saw no-one there, PW-3 is Minati Boro @ Minu. She also deposed that hearing a commotion, she went to the place and found the deceased Tunia Boro there. She did not know who killed Tunia Boro. PW-4 is Dr. Dhanjyoti Saikia and he conducted the post mortem examination aria found the following injuries :-
“1. Absence of right eye due to traumatic exculeation with laceration of both eye lids. The right orbital cavity contains antemortem clotted blood,
2. Incised wound just above the right eye 5 cm x 3 cm skull deep causing fracture of underlying bone and brain matter lacerated.
3. Two incised wound right frontal region scalp each measuring 7 cms x 2 cms x skull deep causing fracture of underlying frontal bone.
4. Incised wound just above the thyroid cartilage of neck, cutting skin, muscles, nerves and vessels of the neck, trachea and oesophagus exposing the vertebral column.
5. Lacerated wound 3 cms x 2 cms x 2 cms on the anterior aspect of left wrist joint. Injuries are antemortem in nature.”
4. He was of the opinion that the cause of death was due to haemorrhage and shock as a result of injuries sustained. So it is a case of homicide. PW-5 is Sri Kanak Chandra Nath. He is the Investigating Officer. He deposed that he arrested the accused on the same date. As there was no specific allegation against Srikanta Boro, no charge sheet was submitted against him. He also deposed with regard to certain statement which were made before him, but these were denied by the witnesses in the Court, CW-1 is Shri Tarakeswar Lohar, Judicial Magistrate, 1st Class, Udalguri. He deposed with regard to the confessional statement made by the accused person before him and that confessional statement is exhibited as Exhibit-4. The confessional statement reads as follows :-
“In the evening of 6.9.1996, I and Srikanta Boro tied Sri Kulen Swargiary’s elephant after grazing it. Srikanta Boro and I then went to our house. After having tea, he and I went to his house. While coming to my house and going to Srikanta Boro’s house, it is necessary to pass by my younger brother, Tunia Boro’s house. Since before, I had not been on speaking terms with Tunia Boro over partition and showing of homestead. It was about 8.30 p.m. when I went with Srikanta Boro to his house on the day of occurrence (6.9.1996). At that time, in front of the gate of his house Tunia Boro asked us, “who is that ?” We
then told him who we were, After leaving Srikanta Boro in his house, I was coming to my residence by a different route. A little later, I heard a hue and cry in Srikanta Boro’s house. From there my younger brother, Tunia Boro was coming, shouting at the same time. His wife too, was coming on his heels. I then had a feeling that Tunia Boro had gone to Srikanta Boro’s house and had killed him. I then went to my house and brought a bamboo lathi and a dao. From behind, I hit my younger brother, Tunia Boro, with the lathi and felled him, and then killed him by hitting him in the throat with the dao. Later, I surrendered myself to Khoirabari Thana along with the dao, and told the daroga about the occurrence took place at night. The night was dark at the time.”
This confessional statement corroborates the medical evidence and the injuries as quoted above. It was on the basis of this confessional statement that the conviction was given by the learned Sessions Judge. The question is that whether it will be proper to maintain the conviction on the basis of the confessional statement as quoted above.
5. None appears for the appellant. We have heard Shri B. Banarjee learned Public Prosecutor, Assam. We are not inclined to adjourn this matter as it was found that this matter is pending before this Court since the year 2000. It is not the requirement of law that a Criminal Appeal is to be adjourned for non-appearance of lawyer rather the Court can dispose of the appeal by cross checking the reasons given by the Trial Court either for convicting or acquitting a person. That is what we have done in the instant case. We have perused the evidence recorded by the Trial Court and We have also heard Shri B. Bararjee, learned Public Prosecutor, Assam, The law regarding conviction on the basis of a confessional statement is well settled by the Apex Court in a case reported in 2001 Criminal Law Journal 4168 (State of Tamil Nadu, Appellant v. Kutty alias Lakshmi Narasiinhan, Respondent) wherein the Supreme Court in paragraph-13 laid down the law as follows :-
“13. It in not the law that once a confession was retracted the Court should presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. The twin test of a confession is to ascertain whether
it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard.”
6. Further in AIR 1978 Supreme Court 1248 (Shankaria, appellant v. State of Rajasthan, Respondent) the Supreme Court in paragraph-49 laid down as follows :-
“49. Another circumstance which reinforces the conclusion about the confession being voluntary is that it was not retracted at the earliest opportunity. The confession was recorded on 14th June, 1974. The trial of the accused commenced on 10th Jan., 1975 when charges were framed and read over and explained to the appellant by the Sessions Judge. At the trial, he was defended by Shri Ganpat Ram, who, as already observed, was an experienced lawyer. The trial dragged on for several months, because witnesses were examined piece-meal on different dates. The prosecution evidence was closed on 14th June, 1975 and the accused was then examined under Section 313 Cr.PC. It was during such examination, the appellant for the first time retracted the confession and took up the plea that he had made it under duress of the police.
7. Here in this case also the confession was made on 10.9.1996 and it was retracted only on 27.5.2000, when the accused was examined Under Section 313 Cr.PC. The Supreme Court pointed out in AIR 1978 SC 1248 (Shankaria, Appellant v. State of Rajasthan, Respondent) that the delayed retraction of a confession has a role to play in order to determine and decide the truth fulness of the confession. The Supreme Court further pointed out that two things are required to be considered in order to decide a conviction on the basis of a confession.
These are :- (i) Whether the confession was made voluntarily ?
(ii) If so, whether it was true and trustworthy ?
Satisfaction of the Court with regard to the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise, it must be excluded and rejected brevimanu. In such a case, the question of proceeding further to apply the second test does not arise. If the first test is satisfied, the Court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession or for that matter of any substantive piece of evidence, there is no rigid canon or universal application. Even so, one broad method which may be useful in most
cases for evaluating a confession may be indicated. The Court should carefully examine the confession and compare it with the rest of evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. We have examined the matter from that angle. From the evidence of the Magistrate it will be crystal clear that the confession which was made by the accused/appellant has been made voluntarily. There is no inducement, threat or promise. The next stage is whether it is true and truthworthy in view of the corroboration with the medical evidence. In the confessional statement it has been stated that he says that he used two weapons, that is, one bamboo lathi and a Dao and from behind he hit with the lathi and felled him and then killed him by hitting him in the throat with the dao. Later on he surrendered to Khoirabari Thana. The night was dark at that time.
8. Now let us have a look at the medical evidence. The medical evidence reads as follows :-
“1. Absence of right eye due to traumatic exculeation with laceration of both eye lids. The right orbital cavity contains ante mortem clotted blood.
2. Incised wound just above the right eye 5 cm x 3 cm skull deep causing fracture of underlying bone and brain matter lacerated.
3. Two incised wound right frontal region scalp each measuring 7 cm x 2 cms x skull deep causing fracture of underlying frontal bone.
4. Incised wound just above the thyroid cartilage of neck, cutting skin, muscles, nerves and vessels of the neck, trachea and oesophagus exposing the vertebral column.
5. Lacerated wound 3 cms x 2 cms x 2cms on the anterior aspect of left wrist joint. Injuries are ante mortem in nature.”
The Medical evidence of injury No. 4 will show that the injury No. 4 was caused by the Dao in the neck and injuries No. 2 and 3 were caused by lathi.
9. That being the position, there is no merit in this appeal and the same shall stand dismissed. The conviction and sentence passed by the Trial Court shall stand affirmed.
10. We have heard Mr. B. Banarjee, learned Public Prosecutor, Assam for the State/Respondent. None appears for the appellant.