Munindra Deka @ Munindra Kalita and Others vs State of Assam

J.N. Sarma, J.—This appeal has been filed against the judgment dated 2.9.2000 passed by the Sessions Judge at Kamrup, Guwahati in Sessions Case No. 85(K)/97. The case was u/s 366/302/34 IPC and the Appellants have been convicted for life and to pay a fine of Rs. 1000/- each in default to undergo rigorous imprisonment for six months each.

The prosecution story is as follows:

On 29.3.93 one Shri Bhupen Chandra Choudhury, an employee of Indian Railways living in quarter at Pandu Institute Colony lodged an ejahar with Jhalukbari Police Station stating that his younger sister Miss. Sabita Choudhury came to his residence from his village home on 19.3.1993. She left for her village home around 12 noon on 21.3.93. On 27.3.93 he went to his village home and learnt there that his sister had not returned till then. He made enquiry and suspected that Shri Munin Kalita, Shri Ramesh Deka and Shri Bipin Deka kidnapped his sister. It was further stated that his sister is about 24 years old. On this report the police registered a case being Jhalukbari Police Station Case No. 103/93 u/s 366/34 IPC. On S.I. of Police Shri Kanak Saikia was entrusted with the investigation of the case. During the course of investigation he visited quarter of the informant Shri Bhupen Choudhury and examined him and other witnesses. On the basis of some love letters allegedly written by Smti Sabita Choudhury which were produced by the informant, one Niranjan Das was interrogated by the police. In his statement he disclosed his involvement in committing the murder of Sabita Choudhury along with Ramesh Deka, Bipin Deka, Munindra Deka @ Munin Kalita. The police interrogated Ramesh Deka on being arrested by police on 26.5.93 and he made statement involving himself with Bipin Deka and Munindra Deka @ Kalita and led the police to spot, that is, to Kamakhyaghuli, Bank of Brahmaputra where the dead body was concealed. A human skeleton was recovered from there along with some wearing apparels, that is, Churidar, Pant, Kamij, a green Omaa and upper part of the skeleton was found which had aknot at the middle portion. A Supriya Wrist Watch also was found with the skeleton along with a pair of gold earring, one chain of "moni". After seeing these the relatives recognised it to be of Sabita Choudhury.

Inquest was conducted over the skeleton and thereafter it was sent for Post Mortem Examination. The Post-Mortem examination was conducted at Gauhati Medical College Hospital.

The Expert from Forensic Science Laboratoiy compared photograph of Sabita Choudhury with the super imposition photograph of the skeleton found. On the basis of the result of the Forensic Science Laboratory and after examination of the skeleton and the finding of the otopsitonducted it was found-that the skeleton and the bones belonged to Sabita Choudhury. Munin Deka was arrested by the police. Accused Bipin Deka absconded.

Having found sufficient materials the following were charge-sheeted:

(1) Munindra Deka @ Munindra Kalita, (2) Shri Bipin Deka, (3) Shri Ramesh Deka and (4) Satyabrata Kalita. The chargesheet was u/s 366/302/201/34 IPC. Bipin Deka was shown as absconder and all other remaining accused persons were sent to stand trial before the Court. The accused persons thereafter were committed to the court of Sessions for trial. In the court of Sessions ultimately charges were framed against Munindra Deka @ Munindra Kalita, Bipin Deka (he being arrested) and Ramesh Deka. Accused Satyabrata Kalita was discharged for absence of materials against him. The accused persons pleaded not guilty to the charges and claimed to be tried.

The prosecution in order to bring home the charges examined as many as 23 witnesses including the Investigation Officer. The accused were also examined u/s 313 of the Code of Criminal Procedure in which they maintained their innocence and denied the charges levelled against them. The defence case was of total denial. The learned Judge as indicated above at the end of the trial convicted the accused persons. Hence this appeal.

We have heard Shri JM Choudhury, learned Senior Advocate assisted by Shri P. Kataki and Shri B.M. Choudhury. We have also heard Smti K. Deka, learned Public Prosecutor. The learned Public Prosecutor has also submitted a detailed written argument running to 14 pages. Shri Choudhury makes the following submissions:

(1) That the plea of being "last seen together" has not been established.

(2) That the alleged statement made by Sri Ramesh Deka regarding alleged discovery u/s 27 of the Evidence Act can not be utilised against the other two accused persons i.e. Bipin and Munin.

(3) That the statement u/s 27 also cannot be utilised to convict Ramesh Deka as it does not satisfy the requirements of Section 27 of the Evidence Act.

Let us take up the first plea taken up by Shri Choudhury. He argues that there was no Test Identification Parade and the accused persons were only identified at the dock. It is not the law that for mere failure to hold Test Identification parade an accused identified at the dock cannot be relied upon in evidence. The law is that even in absence of an identification parade if an accused is identified at the dock the court may take that into consideration. It is not a proposition of law that after a lapse of long period the witnesses would in no case be able to identify the accused they had seen earlier. However, the court must be extremely cautious when such an evidence is before the court (See Delhi Administration Vs. Bal Krishan and Others, The Delhi Administration, Appellant v. Balakrishnan, Hakam Singh and Ram Singh). The court in order to convict a person also can take into consideration the circumstantial evidence coupled with the evidence regarding the story of being "last seen together". No doubt the circumstances must be sufficient to establish the guilt of the accused. In AIR 1983 S C 446 (Earbhadrappa, Appellant v. State of Karnataka, Respondent) the Supreme Court pointed out as follows:

In cases in which the evidence is purely of a circumstantial nature, the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.

Shri Choudhury, learned Counsel for the Appellants challenged the identification of the accused persons at the dock relying on two decisions:

(i) State of Himachal Pradesh Vs. Lekh Raj and Another, and Anr. Respondents). (ii) 2000 Criminal Law Journal 1436 (State of U.P., Appellant v. Ashok Dixit and Anr. Respondents). Both are the decision of the Supreme Court. First was a case on a different footings. This was a rape case and two persons were involved and the Supreme Court with regard to Test Identification Parade pointed out as follows:

During the investigation of a crime the police agency is required to hold identification parade for the purposes of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to the witness or the informant. The absence of Test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Identification Parade may also not be necessary in a case where the accused persons are arrested at the spot. The evidence of identifying the accused person at the trial for the first time is from its very nature, inherently of a weak character. This Court in Budhsen and Another Vs. State of U.P., held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part which he allegedly played in the crime in question with reasonable particularity. In such case that identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness, on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceeding are not substantive evidence, yet they are used for corroboration purposes for believing that the person before the court was the real person involved in the commission of the crime. The Identification Parade even if held, cannot, in all cases be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where accused is not known to the witness or the complainant.

(ii) State of U.P. Vs. Ashok Dixit and Another, was a case of murder and in that case the question was regarding discrepancy and omission. There for the first time accused was identified in the court and the Supreme Court pointed out as follows:

Regarding accused Chaman Lal after the occurrence there was no test identification parade and for the first time PW-2 identified the accused Chaman Lal in the court. This identification cannot be accepted.

That is a decision on facts and is not authority for the proposition that an accused person identified at the dock cannot be deemed to be proper identification. With this background now let us go to the evidence to find out whether the plea of the deceased of being "last seen together" with the accused persons have been established or not.

PW-1 is Arun Bania. He is a Boatman. He deposed that they carry passengers across the river Brahmaputra for fare. He also deposed that Nirmal Das was with him. He deposed that in 1993 they made a trip from Fancy Bazar to Kamakhyaghuli gate on hire. It was stated by him that Nirmal Das had fixed the fare at Rupees one hundred twenty with a man for a up-down trip. That was at 11 -30 or 12 A.M. After the settlement had been made two more boys and a girl totalling four persons get up in the boat. He recognised one of these three boys. The witness has identified accused Ramesh Deka in the dock. He also deposed that about two and half months thereafter police interrogate them and took them to the Police Station and they asked them to identify three of them and he pointed out accused Ramesh Deka to the Police. He further deposed that he made a statement to Magistrate and Exhibit-1 is the statement. Exhibit-1 is a page No. 226 of the Paper Book. In his deposition on 17.11.97 and in the statement before the Magistrate he made out a consistent story. PW-2 is Nirmal Das, the other Boatman. He deposed as follows:

This boy in the middle (pointing to accused Ramesh Deka at the dock) had made the agreement with me. The other two boys who had boarded to boat were those two accused persons (pointing to accused Bipin Deka and Munindra Deka). I have not seen the girl today. She had been wearing a pair of green Salwar Kameez. She was a grown up girl.

Coupled with this evidence of the two boatmen we must also have a look at the evidence of the other witnesses to find out if '' there are any reliable circumstantial evidence to lead to the conclusion that the deceased Sabita Choudhury were "last seen together". PW-3 Rukmini Choudhury is the mother of the deceased Sabita. She deposed that accused Bipin Deka is a resident of their village and the other two accused persons namely, Munin and Ramesh used to visit their residence. Accused Bipin had come to their house on Thursday and the following day, that is, Friday she left her village home to the residence of her elder brother. She also deposed that later-on when police recovered the dead body/skeleton, she had a look at it and recognised it to be that of his daughter.

PW-4 is Hiranmayee Choudhury, the wife of the informant Bhupen Choudhury. She deposed that at day time of Sunday she left their house saying that she would go to their village home. She has given description what clothes she was wearing. She also deposed regarding love affairs of Sabita with Munindra Deka.

PW-11 also deposed regarding love affairs of Sabita with accused Munindra Deka @ Munindra Kalita. The statement recorded by the Magistrate of the two boatman are Exhibits and Exhibit-15 and that was testified by Smti Parimita Bannan Judicial Magistrate, Guwahati, who has been examined as PWs. These PWs 1 and 2 deposed that as agreed earlier the four persons did not come back by their boat and told them that would be late.

From the perusal of the evidence on record and the strong circumstances in this case, it is established that the deceased was last seen with the accused persons by the two witnesses on their boat after which she was never seen and subsequently her skeleton was recovered. We do not find any ground to disbelieve PWs-1 and 2, the two boatmen and we are also satisfied that they could identify the accused persons. Accordingly the first point urged by Shri Choudhury shall stand rejected.

Regarding the second submission that should not detain us long. It is the fundamental principle that a confession becomes inadmissible when made under the certain conditions and when it is trustworthy. Section 24 of the evidence Act lay down that a confession which is not voluntary cannot be proved. Section 25 and 26 of the Evidence Act excludes confession to police officer or to anyone while a person making it is in a position to be influenced by a police officer, the broad-ground for not admitting confession to a police officer or made to anyone while the person making it is in custody of the police officer is to avoid the danger of admitting false confession, but the necessity for exclusion, appearance in a case provided for by Section 27, when the truth of the confession is guaranteed by the discovery of fact in consequence of the information given, the Section (Section-27) seems to be based in view that if a fact is factually discovered in consequence of an information given by the accused some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence (See AIR 1953 S C 104 (Ram Krishan v. State of Bombay). But it is also the law that the statement made by one accused u/s 27 can be used as against him alone and not against Ors. . So the statement of Ramesh Deka u/s 27 certainly cannot be utilised to rope in Munin Deka @ Kalita and Bipin Deka.

Next let us take up the third submission made by Shri Choudhury. There are plathora of decisions on Section 27 of the Evidence Act. We only rely on the following decisions:

(i) In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, Therein paragraphs 9 and 10 the Supreme Court pointed out as follows:

Let us then turn to the question whether the statement of the Appellant to the effect that "he had hidden them (The ornaments)" and "would point out the place" where they were, is wholly admissible in evidence u/s 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated he had hidden the ornaments. The Sessions Judge in this connection relied on Phulukuri Kotayya v. Kind Emperor, 74 Ind. APP. 65 : AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. In that case the judicial committee considered Section 27 of the Indian Evidence Act, which is the those terms

Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, where it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

This Section is an exception to Sections 25 and 26, which provided the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "Whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved u/s 27. The judicial committee had in that case to consider how much of the information given by the accused to the police would be admissible u/s 27 and laid stress on the words "so much of such information...as relates distinctly to the fact thereby discovered in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embrances the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact." It was further observed that:

Information as to past user, or the past history of the object produced is not related to this discovery in the setting in which it is discovered.

This was exemplified further by the judicial committee by observing:

Information supplied by a person in custody that I will produce a knife concealed in the roof of my house, leads to the discovery of the fact that a knife is concealed in the house of the informant to hi:; knowledge and if the knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If however to the statement towards added which I stabbed A those words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.

(10) It is only that part which distinctly relates to the discovery which is admissible, but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not.

(ii) Mohmed Inayatullah Vs. The State of Maharashtra, wherein the Supreme Court pointed out that Section 27 is in a nature of explanation to the preceding Section, particularly Sections 25 and 26. The first condition necessary for bringing this Section into operation is that discovery of a fact means a relevant fact in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in the police custody. The last but the most important condition is that only so much of the information as relates distinctly to the fact whereby discovery is made admissible. The expression fact discovered includes not only physical object produced, but also the place from which it is produced and the knowledge of the accused as to this. In Karan Singh Vs. State of U.P., the Supreme Court pointed out that even if there is an evidence leading to discovery of blood stained knife and even if it is also known from before while knife was hidden still evidence is admissible. It is on this back ground let us scrutinise the evidence. P.W-5 is Mela Ram Bora. He is a Municipal employee. He deposed that on a particular day about four years ago the police took a man in custody towards Kamakhyaghuli. PW.-6 Bipin Chandra Das. He is also an employee of GMC. He noticed also personally on the bank of a stream near Kamakhya. He saw a boy in custody of the police. PW-7 is Ashwini Choudhury. He deposed that when Ramesh Deka was in custody, intheir presence he made a statement to the police that he along with two Ors. namely Munin Deka and Bipin Deka had taken Sabita to Kamakhyaghuli jungle by a boat and had killed her by strangling her with Orna worn by her and had kept the body hidden in Kamakhyaghuli jungle. He also deposed that Ramesh further told that accused Munin Deka had been in love with Sabita for a long time and that he had arranged Anr. girl for marriage and he apprehended that Sabita might object to it and so he had killed her. As led by accused Ramesh Deka they went to Kamakhyaghuli jungle with the police where he stood near a big rock and said that Sabita''s dead body had kept hidden towards the bottom of that rock. About that time four Municipal staff arrived and said that about some months ago they had smelt something rotten there. As shown by the accused. The police cleared that place whereupon a human skeleton was visible. He also deposed regarding the other things found with the skeleton. PW-7 is Dhanjit Saikia. He is also a witness regarding recovery of the skeleton. PW-8 is Uttam Deka. He also deposed regarding the statement made by the accused before the police and recovery of the skeleton and other things as shown by the accused. The evidence of PW-10 is irrelevant in the sense that he has only stated that he has a watch repairing shop at Pandu Borabazar and he was not in a position to say anything regarding the watch recovered with the dead body. PW11 is Bhupen Choudhury. He deposed regarding love affairs of his sister with Munin Deka and deposed regarding handing over all the love letters to the police and they were seized vide Exhibit-5. He also deposed regarding the statement made by Ramesh Deka before police regarding recovery. He also recognised the articles found with the dead body to be of his sister. He produced the Guarantee Slip Exhibit-6 of the watch repairing shop with regard to the watch which his sister used at the time of her missing. PW-12 is P. Barua, the Forensic Expert and he gives the detailed report. There is no need for us to discuss this aspect of the matter as it was never seriously challenged before us that the skeleton recovered was not that of Sabita Choudhury. PW-13 is Dr. BC Roy Medhi, who conducted the post mortem examination. PW-14 is a Police Constable who accompanied the dead body to Gauhati Medical College Hospital for post mortem. PW-15 is a police officer who took over the Investigation and he found that before he took over, the investigation was completed and he only submitted the charge sheet. PW-16 is Smt. Parimita Barman, the Judicial Magistrate who recorded the statement of PWs-1 and 2 which were exhibited as Exhibit-1 and Exhibit-15. PW-17 is Water Machine Operator. He deposed that at the relevant time they saw police. He was declared as hostile witness. But he admitted the recovery of things along with skeleton. PW-18 is Rajen Sarma. He is a witness to the Seizure List with regard to the recovery of things with skeleton. PW-19 also a witness to the recovery of things along with skeleton. PW-20 is Anr. witness with regard to recovery of things along with skeleton. PW-21 is the younger brother of the deceased. His evidence is of no help save and except that he made a statement that his sister had love affairs with the accused Munindra. PW-22 is Hiren Deka. He declared hostile. PW-23 is Kanak Saikia, the Investigating Officer. He deposed that one Niranjan Deka arrested and produced made a statement that he along with Ramesh Deka, Bipin Deka and Munin Deka had murdered the girl namely, Sabita Choudhury and put her in a gunny bag and threw her to the river Brahmaputra near Kamakhya. That was on 1.4.93 and three persons were produced for interrogation, that is, Tarani Deka, Hansha Deka and Niranjan Deka. On 26.5.93 Baihata Police produced Ramesh Deka at Jhalukbari Police Station and Ramesh Deka made a statement that he along with Bipin and Munindra Deka took the said Sabita Choudhury in a machine boat from Fancy Bazar River Ghat and took them to Kamakhya jungle (wrongly printed as Kharghuli jungle) in the Paper book) and took her inside the jungle and then Munin and Bipin smothered her to death with the help of her Orna and the dead body had been concealed there. He gave a written statement which is Exhibit-22 and the police officer also signed as Exhibit-22(2). Thereafter on 28.5.93 he along with his staff taking Ramesh Deka with them proceeded to the place being led by Ramesh Deka. On being led by ramesh they arrived at Kamakhyaghuli near Kalipur area. Thereafter, at a distance about 15 to 20 feets below human skeleton was found. He also gave a description of the things recovered along with the side of the skeleton and he exhibited them as Material Exhibits -1 to 5. He also exhibited the Seizure List.

PW-1 is Dr. Kumud Deka. His evidence is absolutely immaterial.

So all the conditions as required u/s 27 of the Evidence Act have been satisfied in this case and the discovery made can be used as evidence against the accused Ramesh Deka. Regarding the articles found near the skeleton , the witnesses have supported and corroborated each other. The evidence both oral and documentary clearly established that the discovery is admissible u/s 27 of the Evidence Act. The argument advanced by Shri JM Choudhury that the police knew earlier the place where the dead body is kept is not tenable in view of the oral evidence. There is also no doubt with regard to the motive of the murder. Accused Munin Deka had deep love with the deceased. The members of the family objected to their marriage and Anr. girl was fixed up for him, a working girl, that is, a Nurse of Hospital and being apprehensive that the deceased Sabita may create trouble they decided to murder her. There is also a statement exhibited as Exhibit 38 of Ramesh Deka at page 292 and 293 of the Paper book but we are not concerned with it.

On the basis of all these we find no infirmity in the judgment of the Court below and accordingly we upheld the conviction and sentence imposed upon the accused/Appellants we dismissed the appeal.