JUDGMENT
I.A. Ansari, J.
1. This appeal is directed against the judgment and order, dated 22.1.1998, passed by the Sessions Judge, Dibrugarh, in Sessions Case No. 18/97, convicting the accused-appellant under Section 302 IPC and sentencing him to undergo imprisonment for life and pay a fine of Rs. 500 (Rupees five hundred).
2. The prosecution case, as projected at the trial, may, in brief, be stated as follows: The accused, at the time of occurrence, used to live with his brother, Bhabesh Gogoi, their mother, Seoti Gogoi, and father, Milbor Gogoi (since deceased). At about 6 O-clock in the evening of 11th August, 1996, as a result of complaining by the accused that he had been given by his father less amount of pitha (a kind of suit-pie), the accused had a quarrel with his father and following this quarrel, the accused picked up a dao and gave blows with the same on his father killing him on the spot. On hearing the hue and cry of Seoti, several persons from the neighbourhood rushed to the house of the deceased, they found the deceased lying with injuries on his body and his wearing apparel sweared with blood. Seoti informed the neibhourers that it was the accused, who had killed his father. The accused also confessed to his neighbours that he had hacked his father. The other son of the deceased, namely, Bhabesh Gogoi was, at the time of occurrence, away from home and on returning home, when he came to know about the occurrence, he went to Chabua Police Station and lodged there a written FIR (Ext. 3). The police arrived at the place of occurrence, held inquest over the said dead body, took the accused into their custody and seized the weapon of offence, namely, a dao from the said house by a seizure list (Ext. 5). The accused made a judicial confession too on 19.8.1996. On completion of investigation, police laid charge-sheet against the accused under Section 302 IPC.
3. In all, prosecution examined as many as eight witnesses. The accused was, then, examined under Section 313 Cr.PC. In his examination aforementioned, the accused denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. The defence also took the plea of alibi by asserting that at the time of occurrence, the accused was not present at the place of occurrence and he was away to Chabua. No evidence was, however, adduced by the defence.
4. On the conclusion of the trial, learned trial Court, on finding the accused guilty of the charge framed against him under Section 302 IPC, convicted him accordingly and passed sentence against him as hereinabove mentioned. Hence, the present appeal.
5. We have heard Mr. N. Choudhury, learned Amicus curiae, and Mr. P.C. Gayan, learned Additional Public Prosecutor, Assam.
6. In this case, the mother of the accused, namely, Smt. Seoti Gogoi (PW 4) was, according to the prosecution, the sole eyewitness to the occurrence, but she turned hostile. So far as Shri Debakanta Gogoi (PW 1) and Shri Nabakanta Gogoi (PW 2) are concerned, they are neibhourers, they claim to have come to the place of occurrence on hearing hue and cry at the house of the deceased, they saw the deceased lying dead in his courtyard and the mother of the accused reported to them that the accused had killed his father. The neibhourers found the accused having his bath at the back side of his house, they apprehended the accused and when the police arrived at the place of the occurrence, the accused was handed over to the police. As the alleged eyewitness has turned hostile, the case of the prosecution substantially rests on the alleged extra-judicial and judicial confession of the accused.
7. Let us, first, consider the extra-judicial confession on record. This brings us to the evidence of PW 3 (Nirmal Chetia). According to this witness, on noticing a commotion in the evening of the, day of occurrence, he (PW 3) alongwith his other co-villagers went to the house of the accused, where he found Milbor Gogoi lying with injuries, he saw the mother of the accused wailing and the accused told that he had hacked his father, but the accused did not say why he had done so. PW 3 has also deposed that he (PW 3) did not notice any injury on the person of the accused and the accused was handed over to the police.
8. There has been, we find, virtually no cross-examination of PW 3 by the defence and his assertion that the accused had admitted that had killed his father has remained wholly unshaken. Since no enmity is alleged to have been existing between the accused and PW 3, no coercion or force is alleged to have been applied by PW 3 or their neighbours on the accused to make such extra-judicial confession, the assertion of PW 3 that the accused had told them that he had hacked his father leaves one with no option, but to conclude that the accused did voluntarily make the extra-judicial confession to the effect that he had killed his father.
9. Let us, now, test as to whether the extra-judicial confession can be treated as true also. While considering this aspect of the matter, it needs to be noted that though PW 4 (Seoti), who was alleged to be the sole eye witness by the prosecution, has turned hostile, her evidence is that on the day of occurrence in the evening, the accused had, at their house, a quarrel with his father over pitha (a kind of sweet-pie), which his father had made, the accused complained that he had been given less quantity of pie and he (accused) went out by refusing to take the pie, she too went up to the boundary fencing of her house to call her neighbours and, on returning inside, she found her husband lying dead, many of her neighbours came to her house and found the accused taking bath by their well. It is also in the evidence of PW 4 that at the relevant time, no one else was present at their house and that her other son had gone to Chabua.
10. Close on the heels of the evidence of PW 4, PW1 (Debakanta Gogoi) has deposed that accused Rajeswar’s house is about two furlongs from his house and on the day Milbor died, he (PW 1) heard, in the evening of the day of occurrence, cries of the mother of the accused, he (PW 1) alongwith many of their neighbours came to the house of the accused and they were told by the mother of the accused that the accused had a quarrel with his father, they apprehended the accused at the back side of his house, where he was taking bath, they handed over the accused to their official Gaonburah and the Gaonburah handed over the accused to the police.
11. Broadly in tune with the above evidence of PW 1, PW 2 (Nabakanta Gogoi) has deposed that on hearing noise and seeing people rushing confusedly, he went to the house of accused, he saw Milbor Gogoi’s dead body lying in his courtyard, the mother of the accused told them that the accused had hacked his father, whereupon Gaonburah was called in, the police was informed, the police arrested the accused and took away the dead body.
12. From a careful and dispassionate scrutiny of the evidence of PW 4, in the light of the evidence of PWs 1 and 2, what transpires is that at the relevant time, there were only 3 persons present at the house, where the occurrence, admittedly, took place, the three persons being the accused (Rajeswar Gogoi), his mother (Seoti Gogoi) and his father, Milbor Gogoi (since deceased). This evidence on record also, undisputedly, shows that a quarrel took place between the accused, on the one hand, and his father, on the other, with regard to quantity of pitha, (a kind of sweet-pie) given to the accused by his father. The evidence of PW 4 further shows that the accused went out of home by refusing to take the pitha and she went up to her boundary fencing to call for her neighbours and when she returned home, she found her husband lying dead. Though PW 4 is completely silent as to when the accused returned home, her evidence clearly shows that the neighbours arrived soon after the occurrence and when the neighbourers arrived, they found the accused taking bath by the side of their well.
13. Thus, though PW 4 claimed that she had not seen any assault on the deceased at the hand of the accused, the fact remains that moments before the deceased was found dead at his house, the accused had a quarrel with the deceased, in the presence of PW 4, and following this quarrel, PW 4 went only up to the boundary fencing of their courtyard and, on her return, she found her husband lying dead and on hearing her cries, when the neighbours arrived, they found the accused having bath by the side of the well of his house.
14. A careful scrutiny of PWs 1 and 2 also shows that on hearing the hallah raised from the house of the deceased, when they came to the house of the deceased, the were reported by PW 4 that the accused had killed his father. Since PW 4 has not deposed that she had seen the accused killing his father and she has also not deposed that she reported to her neighbours that the accused had killed his father, we keep the evidence given by PWs 1 and 2 to the effect that PW 4 had hold them that the accused had killed his father is nothing but hearsay and the evidence of PWs 1 and 2 cannot be treated to have disclosed that the accused was the perpetrator of the offence. However, the fact remains that the evidence of PWs 1 and 2, unquestionably, shows that when they reached the house of the deceased, they were promptly reported by none other than the mother of the accused that the accused had killed his father. The fact that the mother had so reported to PW 1 has not been disputed by the defence. This, in turns, shows that the name of the accused surfaced, moments after the occurrence, through none other than the mother of the accused, as the assailant of his father, though the evidence given by PWs 1 and 2 can not, we must hasten to add, be treated as complete proof of the fact that the accused had killed his father.
15. Couple with the above, it is also imperative to note that since there were only 3 three persons, namely, the accused and his parents were present at the house aforementioned, when the quarrel between the accused and his father took place and when the mother (PW 4) came back from just near the boundary fencing of their courtyard, she found her husband lying dead and, on hallah being raised, when the neibhourers arrived, they found the accused present at home and the mother reported to them that the accused had killed his father. The chain of events, when so joined together, leave no room for reasonable doubt, and lead one to the lone and only conclusion, that it was none but the accused, who had hacked his father to death.
16. What, thus, crystallizes from the above discussion is that when the evidence of extra-judicial confession given by PW 3 is read along with the evidence of PW 1, PW 2 and 4, it clearly follows that it was the, accused, who had killed his father.
17. So far as Bhabesh Gogoi (PW 7), who is the elder son of the deceased is concerned, his evidence is that on the day of occurrence, when he came home, he found a large number of people present there and they had kept the accused apprehend, the people reported to him that the accused had cut his father, he (PW 7) saw the dead body of his father, whereupon, he lodged an Ejahar. ( Ext. 3).
18. The evidence of PW 7 merely indicates that when he returned home, he found the dead body of his father lying and on his arrival, he was informed that it was the accused, who had killed his father and accordingly, the FIR was lodged by him.
19. We, now, turn to the judicial confession made by the accused and determine as to how far the same can be relied upon. For this purpose, when we look into the evidence of PW 6 (Shri GK Gogoi), we find that the evidence of PW 6 is that on 19/08/1996, PW-6 was a Judicial Magistrate at Dibrugarh and on that day, on the orders of the C.J.M, the accused was produced in the Court of PW 6 for recording his confessional statement, PW 6 asked the accused if he would confess and warned him about the consequences of making confession. It is also in the evidence of PW 6 that the accused was produced before PW 6 at 1.00 PM, PW 6 gave to the accused three hours’ time for reflection and during the period of reflection, the accused was kept under the charge of the Bench Assistant of PW 6. PW 6 has also deposed that at 4.00 PM, the accused was produced for recording his confession, the accused volunteered to confess, PW 6 put to the accused some questions and the accused replied thereto, PW 6 warned the accused that he was not bound to confess and if he confessed, it would he used as evidence against him and he would be punished. PW 6 has further deposed that PW 6 ascertained by questioning the accused that the accused was not going to confess at some one else’s instance and PW 6 made it clear to the accused that even if he does not confess, he would not be handed over to the police again, but as the accused volunteered to confess and, on being satisfied that the accused was going to make confession voluntarily, PW 6 recorded the confessional statement of the accused, Ext. 2 being the confessional statement.
20. We have carefully examined Ext. 2, i.e., the form on which the judicial confession has been recorded. We find that PW 6 gave sufficient time for reflection to the accused, he ascertained that the accused was willing to confess and he also informed the accused that the accused would not be sent back to the police even if the accused chose not to confess. Moreover, from the fact that the accused informed PW 6 that he had not been assaulted by police, coupled with the fact that PW 6 did notice any injury on the person of the accused, the confession made by the accused cannot be said to be involuntary. The accused, during the examination under Section 313 Cr.PC, admitted to have made the judicial confession aforementioned, but he stated that he had made this confession out of fear. The accused has neither, in his statement under Section 313 Cr.PC, nor, while cross examining the Investigating Officer (PW 8), took the plea that he had been beaten by the police or coerced or threatened by the police to make the confession. We may also mention here that though the Investigating Officer had deposed, in his examination in-chief, that on finding the accused wanting to confess, he had sent the accused to the Court for getting his confessional statement recorded, the defence did not, while cross-examining the Investigating Officer (PW 8), even whisper that the police had beaten the accused or tortured or coerced or forced him to make the judicial confession and/or that the judicial confession, in question, was made by the accused out of fear. Thus, the mere assertion made by the accused, during the course of examination under Section 313 Cr.PC, that the confession was made out of fear can be given no importance at all.
21. Situated thus, we have no hesitation in holding that the confessional statement made by the accused was voluntary.
22. Let us, now, come to the question as to whether the judicial confession made by the accused is true. In his confessional statement, the accused is seen to have Stated thus :
“In the evening of last Saturday, the 11th August, 1996, I had a paltry quarrel with my father Milbor Gogoi. We scuffled inside the house. All of a sudden, I picked up a dao and dealt with it two strokes in the head of my father. Father was still quarrelling with me. Both of us came out to the “pirali” (the outer) edge of the mud floor of a house – Translator) where I once again hit him. After that I lost my senses. Hit several blows, (father) was lying in the courtyard as clothes and body were stained with blood I went inside alone. When I cut father inside the house I cut him voluntarily.”
23. How to ascertain if a voluntarily made judicial confession can be relied upon as true too, one can recall the decision in Shankaria, v. State of Rajasthan, reported in AIR 1978 SC 1248, wherein the Apex Court observed thus :
“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 cannon of 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 the 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.”
24. In the present case, in order to determine if the judicial confession is true, let us, now, ascertain if the confessional statement made by the accused receives necessary corroboration from the remaining evidence on record.
25. While considering the above aspect of the matter, it is necessary to take into account the medical evidence on record. According to PW 5, (Dr. R. Chaliha), who had, admittedly, performed the post-mortem examination on the said dead body on 18.8.1996, he had found as many as 13 injuries on the said dead body, 10 of the injuries being grievous, the injuries being ante-mortem and homicidal in nature, the injuries having been caused by sharp cutting weapons.
26. In the opinion of the doctor (PW 5), the death was due to shock and hemorrhage as a result of the injuries sustained by the said deceased on his head, the time since death being 18 to 24 hours and Ext. 1 is the postmortem report.
27. PW 5 (doctor) also confirmed that the dao, which was found and seized at the place of occurrence, could have caused the death of the said deceased.
28. It may be noted, at this stage, that the learned Sessions Judge did not, unfortunately, elicit from the doctor (PW 5) as to what were the injuries, which he had found on post-mortem examination. Instead of merely recording, in the evidence of doctor (PW5), that there were 13 injuries found on the said dead body, the learned Sessions Judge ought to have elicited from the doctor the complete description of the injuries and the parts/organs of the body, where the injuries had been sustained. Not eliciting such findings in a case as serious as the present one is an unpardonable laps on the part of the learned trial Court. However, in view of the fact that the doctor (PW 5) has proved Ext. 1 as the relevant post mortem report, the findings recorded in the post-mortem report become an integral and inseverable part of the evidence of PW 5. Viewed from this angle, when we look at Ext. 1, we find that on conducting the post-mortem examination, PW 5 had found the following injuries :
“(1) An incised wound over the RT forearm measuring 14 x 5 cm.
(2) Cut fracture over the left partial, left occipital and right frontal reason of the skull.
(3) A depress fracture over the right frontal region.
(4) An incited wound in the right occitipate region measuring 6 x 2 cm and bone deep.
(5) An incised wound being the right ear measuring 6 x 2 cm and bone deep.
(6) An incised wound in the middle of the occipital region in the midline shaped with depressed fracture and brain deep.
(7) An incised wound over the right scapula mage ring 8 x 2 cm and bound deep.
(8) An incised wound over the right side of the back measuring 4 x 2 cm and bound deep.
(9) An incised wound below the right ear measuring 3 x 2 cm.
(10) An incised wound over bridge of nose measuring 2 x 1 cm.
(11) An incise wound over left (torn) of nose measuring 2 x 1 cm.
(12) An incised wound left upper lip measuring 1 x 1 cm.
(13) An incised wound over the dun mage ring 3 x 1 cm.”
29. From the medical evidence discussed above, it clearly transpires that as many as 13 incised wounds were found on the said dead body and that these wounds could have been caused by a dao, such as, M. Ext. 1.
30. The doctor (PW5) was not cross-examined by the defence and his whole evidence remained unchallenged and undisputed. This apart, we see no reason to doubt the veracity of the evidence of PW 5.
31. Hence, from the medical evidence on record, it becomes transparent that Milbor Gogoi died as a result of injuries sustained by him, the said injuries being homicidal in nature.
32. We find from what has been discussed above that the confessional statement, in question, made by the accused was substantially corroborated by other pieces of the evidence on record inasmuch as the evidence of PW 3 shows that the accused made a confession that he had killed his father. This apart, the evidence of PW 4 (the mother of the accused) indicates that the accused had, as, eventually, narrated by the accused in his confessional statement (Ext. 2), an altercation with his father and following the altercation, his father died at their house at a time, when no outsider was present there. The evidence on record also reveals that on hallah being raised by PW 4, when the neighbours arrived at the place of occurrence, they were reported by none other than PW 4 herself (who is mother of the accused) that the accused had killed his father and the neighbours, on finding the accused at the back side of the said house, apprehended him and, further, the dead body of Millbor Gogoi was found lying smeared with blood in his house. The medical evidence on record lends support to the judicial confession that the said deceased sustained as many as 13 incised wounds by a heavy sharp cutting weapon, such as, M. Ext. 1, leading to his death. Notwithstanding, therefore, the fact that PW 4 did not testify that she had seen the accused giving blows with a dao on his father, the evidence of PW 3, who speaks of the extra-judicial confession made to him by the accused, as well as the other pieces of the evidence on record leave, as discussed above, no room for doubt that the accused had assaulted his father and caused his death. The judicial confession, thus, receives substantial corroboration from the oral as well as the medical evidence on record. In other words, on comparing the events leading to the death of the said deceased (as reflected from the judicial confession) with the other oral, circumstantial and medical evidence on record, it becomes clear that the confessional statement projects a catalogue of events, which fits in with the rest of the evidence on record and make thereby the judicial confession safe enough to place reliance thereon and act upon.
33. What logically follows from the above discussion is that the confessional statement of the accused is not only voluntary, but also true.
34. Coupled with the above, the oral evidence on record is unshaken that the said deceased died as a result of the injuries sustained by him. In a situation, such as this, even if the post mortem report had not been proved, it would not have made any material difference in the conclusion that we have reached inasmuch as the various incriminating pieces of the circumstantial evidence on record, when culled together, coupled with the evidence of extra-judicial as well as judicial confessions made by the accused-appellant more than amply prove that Milbor Gogoi had died as a result of the injuries sustained by him following the assaults at the hands of his own son, namely, Shri Rajeswar Gogoi, i.e., the accused-appellant.
35. The law with regard to circumstantial evidence is well-settled. For sustaining conviction on circumstantial evidence, the circumstantial evidence available on record must be complete and conclusive in nature and such circumstantial evidence shall not only be consistent with the guilt of the accused, but that the same shall also be inconsistent with every hypothesis of innocence of the accused.
36. Apart from the fact that the circumstantial evidence on record unerringly point to the accused-appellant as the assailant of his father, the unshaken evidence of PW 3 that the accused had confessed to them coupled with the reliable and trustworthy judicial confession leave with no hesitation in holding, and we do hold, that the accused did cause death of his father by giving him repeated blows with dao on the vital organs of the latter. The weapon used by the accused, which was deadly in nature, the vital organs of the body, where the blows were given, the force with which the blows were dealt with and the number of blows, which the accused gave, all speak eloquently, and furnish proof of the fact, that the accused intended to cause nothing less than complete end to the life of his father and the accused did succeed, as the evidence on record discloses, in accomplishing his intention.
37. Because of what has been discussed above, we have no hesitation in holding that the evidence on record convincingly prove the accused guilty of the charge of murder. His conviction, therefore, under Section 302 IPC and the sentence passed against him deserve no interference.
38. In the result and for the reasons discussed above, this appeal fails and the same is accordingly dismissed.
39. Send back forthwith the LCR with a copy of this judgment and order.