Khejur Boro @ Basumatary vs State of Assam

I.A. Ansari, J.—This appeal is directed against the judgment and order, dated 25th May, 2006, passed by the learned Sessions Judge, Bongaigaon, in Sessions Case No.2(B) of 2003, convicting the accusedappellant under Section 302IPC and sentencing him to suffer imprisonment for life and also pay a fine of Rs. 1,000/ and, in default of payment of fine, to undergo rigorous imprisonment for a term of one month more.

The prosecution''s case, as is unfolded at the trial, may be noticed, in brief, as follows:

The accusedappellant was in love with Sambari Basumatary (since deceased). When Sambari and her family members insisted upon the accused to marry her, the accused assured them that he would marry Sambari after 2 years and making this promise, he left his village for Meghalaya to earn his living. In the meanwhile, the accused learnt that Sambari developed an affair with one Gopkhola and was blessed with a child from him, but the child died. Upon hearing that the accused was going to marry another girl and his marriage was to be solemnized on 12.12.2001, Sambari appeared at the residence of the accused and insisted on staying there. Though the accused asked Sambari to leave his house as he was going to marry another girl, Sambari refused to do so. Even after getting beaten by the accused, Sambari remained adamant and did not leave the house where after the accused hacked Sambari to death and fled from his house. The accused was apprehended on the following day and was produced before police. The first information report having been lodged, in this regard, on 12.12.2001, a case was registered against the accused under Section 302 IPC. Police visited the place of occurrence, held inquest on the dead body and got post mortem examination performed. In the meanwhile, the accused also made a judicial confession and, on completion of investigation, a chargesheet was filed against the accused for his prosecution under Section 302 IPC.

To a charge framed against him, at the trial, under Section 302 IPC, the accused pleaded not guilty.

In support of their case, prosecution examined altogether 14 witnesses, including the Judicial Magistrate, who had recorded the judicial confession of the accused, and the investigating officer. The accused was, then, examined under Section 313 CrPC and, in his examination aforementioned, he denied to have committed the offence, which he was alleged to have committed, his case being of denial. As regards the judicial confession, the accused insisted that the same was made involuntarily and on being forced by police. No evidence was adduced by the defence.

Having come to the conclusion that the accused was proved guilty of the charge framed against him, the learned Trial Court convicted him accordingly and passed sentence against the accused as mentioned above. Aggrieved by his conviction and sentence passed, the convicted person has preferred this appeal.

We have heard Mr. R. Adhikary, learned amicus curiae, and Mr. K.A. Mazumdar, learned Addl.PP, Assam.

While considering the appeal, what needs to be noted is that in the case at hand, prosecution heavily relied on the judicial confession, which the accused claimed to have made voluntarily and truthfully. What was ignored by the learned trial Court is that the evidence of the Judicial Magistrate(PW 10) was recorded on 19.2.2005. In fact, examinationinchief of this witness was recorded in the absence of the counsel of the accused and crossexamination was also not done on the ground that his usual counsel was not present and the witness was discharged.

We are aghast at the manner in which the trial was conducted by the learned Sessions Judge inasmuch as he ought to have appointed if the counsel, appointed by the accused, was absent, a counsel for the accused in the form of providing legal aid to the accused. No such thing was done.

In fact, as far as the investigating officer is concerned, his crossexamination was reserved. In his case, however, the defence, on 25.11.2005, declined to crossexamine the investigating officer. The investigating officer was, therefore, not crossexamined. The learned Court below cannot be held responsible for omission of the defence to crossexamine the investigating officer, but there can be no justification for not providing a legal aid counsel to the accusedappellant because the Judicial Magistrate could not be examined due to the fact that the counsel, appointed by the accused, was absent.

In the circumstances indicated above, we cannot, in the interest of justice, uphold the conviction of the accusedappellant and, at the same time, we cannot acquit him. The remedy, therefore, lies in remanding the case to the learned trial Court for summoning PW10 and, then, allow the defence to crossexamine him and if no counsel is found available for the accusedappellant, a legal aid counsel be appointed in this regard so that no prejudice is caused to the accused and a fair trial takes place.

Considering the matter in its entirety and in the interest of justice, while the impugned judgment and order, convicting the accusedappellant under Section 302 IPC, stands hereby set aside, the case is remanded to the learned trial Court with direction to obtain the presence of the accusedappellant in the trial Court and if the accusedappellant is found not having any counsel of his choice or if he is found to be incapable of engaging a counsel to defend him, learned Sessions Judge shall appoint a counsel so that the defence of the accused can be effectively conducted by recalling PW10 and his crossexamining can be done by the defence. It is further directed that the trial shall be conducted expeditiously and completed, preferably, within a period of three months from the date of receipt of a copy of this order. The accusedappellant shall remain in custody and his appearance shall be obtained by the learned trial Court in accordance with law so as to enable him to face the trial.

With the above observations and directions, this appeal stands partly allowed and disposed of.

A fee of Rs 3,500/ (Rupees three thousand five hundred) shall be paid to the learned amicus curiae for rendering valuable assistance to the Court.

Send back the LCR.