Purna Kanta Boruah vs State Of Assam

Mir Alfaz Ali, J

This appeal is directed against the judgment and order dated 04-08-2015 passed by learned Sessions Judge, Nagaon in Sessions Case No. 2 (N)/2014.

By the said judgment, learned Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to imprisonment for life and a fine of Rs.

10,000/- with default stipulation.

This case tells a poignant story of an unfortunate death of an eighty years old lady,who was killed by none other than her own son. As per

prosecution case, on 13-09-2013, the appellant killed his mother by strangulating her with PVC wire. The FIR was lodged by the daughter-in-law of

the deceased, on the basis of which, police registered a case and after usual investigation, laid charge-sheet against the appellant u/s 302 IPC.

In course of trial, prosecution examined 10 witnesses. After completion of theprosecution evidence, the accused was examined u/s 313 CrPC and

all the incriminating circumstances were put to him. During examination u/s 313 CrPC, the accused unequivocally admitted his guilt, by stating that he

killed his mother by strangulation. He also admitted that after committing the offence he surrendered before the police.Â

We have heard Mr. Z. Hussain, learned Amicus Curiae for the accused-appellant andMr. P.P. Baruah, learned Public Prosecutor for the State

respondent. We have also carefully scanned the evidence and materials brought on record.

PW 9, Dr. Jiauddin Ahmed who conducted post mortem examination found asfollows :-

(1) Bruise mark found over both eyes with swelling and bluise (blue colour) discolouration ofeyelids in both side. Eyes are congested.

(2) Two transverse marks of ligature mark seen completely around the neck of size 3/4th cm in breadth and situated in upper and middle part of the

neck.

(3) Two ligature knot marks found over the back of the neck. On dissection of the ligaturegroove and front of the neck, severe engorgement and

hemorrhage seen in the tissues in and above the ligature marks. Superficial muscle of the neck is lacerated.Â

There is fracture of both superior horns of thyroid cartilage seen.

Brain is congested. Membrane covering the brain is congested.

Mouth and pharynx congested. Skull, scalp healthy. Spinal cord healthy. Liver, spleen, kidney healthy. Both lungs congested. Pleura congested.

Pericardium heart and vessels healthy.â€​Â

In the opinion of the doctor, death was due to asphyxia from homicidal strangulation and all the injuries were ante-mortem in nature.

In fact, homicidal death of the victim was never disputed. Apparently there was no eyewitness to the occurrence and learned Sessions Judge

convicted the accused on the basis of the evidence of PW 1, the informant, PW 8 and PW 9, the doctor, PW 11 (I/O) and the confession of the

accused during examination u/s 313 CrPC.

PW 1 deposed that she had gone to the Block hospital for bringing medicine for hermother-in-law (deceased) and when she left the house, the

accused was with the deceased in the house and on her return, she found that her mother-in-law was lying at the doorstep with a wire tied on her

neck and the accused hurriedly left the house. PW 8 stated that on coming to learn about the occurrence, he came and found the body of the victim

lying and her neck was tied with a PVC wire. He rang the police of Sadar Police Station, Nagaon and came to know that the perpetrator of the

offence had already surrendered before the police. PW 11, the Investigating Officer stated that he found the accused at Nagaon Sadar P.S. where, he

arrested the accused and interrogated him. The accused in his examination u/s 313 CrPC also clearly admitted that immediately after the occurrence

he surrendered at the Nagaon Sadar Police Station.Â

Thus, the evidence of PW 1 that she left the house for bringing medicines, leaving theaccused with the deceased and on her arrival she saw the

accused leaving the house hurriedly and the victim was found dead having been strangulated, remained unshaken. The circumstances emanating from

the unshaken testimony of the PW 1, that the victim was last seen alive with the accused and within a short span of time she was killed by

strangulation and the accused was all along present in the house with the deceased and left the house hurriedly on seeing PW 1, reasonably raises the

finger of accusation to the accused in absence of any explanation or any evidence indicating the possibility of access of any other person in the house

of the deceased. Rather, the confession of the accused during examination u/s 313 CrPC that he killed his mother and immediately after commission

of the offence surrendered before the police, stood corroborated by the above circumstances.

It is no doubt true, that the statement of the accused recorded u/s 313 CrPC is notevidence stricto sensu, reason being that such statement is not

recorded on oath. But the law is well settled as to the evidentiary value of such statement recorded u/s 313 CrPC. Subsection (4) of Section 313

CrPC reads as under :-

“The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other

inquiry into, or trial for, any other offence which such answers may tend to show he has committed.â€​

The above provision makes the legislative intent amply clear with regard to the use ofstatement made by the accused in answer to the question put

to him during examination u/s 313 CrPC, inasmuch as, as per provision of Sub-Section (4) of Section 313 CrPC, the answer given by the accused can

be put in evidence for and against the accused. There are long line of decisions of the Apex Court and this High Court, on the scope of using the

confession or admission of guilt by the accused during examination u/s 313 CrPC.

This Court had the occasion to deal with the scope of using the confession of theaccused during examination u/s 313 CrPC, in the case of Sri

Mithu Kalita @ Mitu Kalita â€"VS- State of Assam reported in 2006 (1) GLT 393 and subsequently also in another decision in Baizu Baby and

Ors.-VS-State of Arunachal Pradesh and Ors. reported in 2009 (1) GLT 405.

In Mithu Kalita, this Court relying on a decision of the Apex Court in State of Maharashtra â€"VS- Sukdev Singh reported in (1992) Crl. LJ 3454

observed as under :-

“ From what has been observed and laid down in Sukhdev Singh (supra), it also becomes transparent that if an accused person, in his examination

under Section 313 Cr. P. C. , confesses to the commission of the offence (s) charged with, the Court may, relying upon such confession, proceed to

convict the accused and that it is only if the accused does not confess and/ or choose to explain the circumstances appearing in the evidence against

him or sets up his own version of the occurrence claiming to the effect that he had committed no offence, the statement of the accused, made during

the, course of examination under Section 313 Cr. P. C. , can be considered in its entirety along with other pieces of evidence on record. To put it

differently, there is no impediment in law for a Court to found conviction of an accused on his confession made by him during his examination under

Section 313 Cr. P. C.â€​

The Apex Court in the case of Sukdev Singh (supra) observed that the statement recorded under Section 313 CrPC can be used for proving the

guilt of the accused and held as under :-

That brings us to the question whether such a statement recorded under Section 313 of the code can constitute the sole basis for conviction. Since no

oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why subsection (3) says that the

accused shall not render himself liable to punishment if he give false answer. Then comes sub-section (4) which reads :

313 (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other

inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

Thus the answers given by the accused in response to his examination under Section 313 can be taken into consideration in such inquiry or trial. This

much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into

consideration in the said inquiry or trial. See State of Maharashtra v. R. B. Chowdhari (1967) 3 SCR 708 : AIR 1968 SC 110 : 1968 Cri LJ 95 ). This

Court in the case of Hate Singh Bhagat Singh v. State of M. B. (1953 Cri LJ 1933 : AIR 1953 SC 468) held that an answer given by an accused

under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of

punjab (1963) 3 SCR 678 : (1964) (1) Cri lj 730) this Court held that if the accused confesses to the commission of the offence with which he is

charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three Judge bench answered

the question it would be advantageous to reproduce the relevant observations at page 684-685 :

under Section 342 of the Code of Criminal procedure by the first subsection, insofar as it is material, the Court may at any stage of the enquiry or trial

and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the

accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is

primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation -

if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may 'be

taken into consideration' at the enquiry or the trial. If the accused person in his examination under section 342 confesses to the commission of the

offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does. not confess and explaining

circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no

offence, the statement of the accused can only be taken into consideration in its entirely. "" sub Section ((1)) of Section 313 corresponds to sub-section

((1)) of Section 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons case

where the presence of the accused is dispensed with his examination under clause (b) may also be dispensed with. Sub Section (2) of Section 313

reproduces the old subsection (4) and the present sub-section (3) corresponds to the old sub-section (2) except for the change necessitated on account

of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old'subsection (3 ).

Therefore the aforestated observations apply with equal force.

The above proposition of law was affirmed subsequently by the Apex Court in State of U.P.-VS- Lakhmi reported in (1998) 4 SCC 336.Â

What therefore follows from the above authorities is that the answer given by theaccused during examination u/s 313 CrPC, which contains

admission of the incriminating evidence and materials attributing culpability to the accused, can be used as evidence for arriving at a finding with

regard to the guilt of the accused. Thus, the circumstances revealed from the testimony of PW 1, PW 8 and PW 11 that when PW 1 left the house,

the accused was alone with the victim and after sometime when PW 1 came back, she found the deceased lying dead with a PVC wire fastened on

her neck and saw the accused hurriedly leaving the house, whereafter the accused surrendered in the police station, coupled with the confession of

the accused during examination u/s 313 CrPC, leaves no room for doubt that it was none, but the accused/appellant, who caused the death of the

victim by strangulation.

Learned Amicus Curiae referring to the cross-examination of PW 1 contends, that theaccused was of unsound mind, and as such, he is entitled to

protection u/s 84 of the IPC.

Evidently the accused neither took the plea of insanity at any stage of the proceeding,nor any defence evidence was adduced by the accused,

though burden to prove the exceptions under Chapter IV of the IPC and for that matter a defence of insanity u/s 84 of the IPC lies with the accused.

Though, PW 1 stated in her cross-examination, that the behavior of the accused was abnormal and he was also considered by the villagers as mad and

they were scared of him. PW 1 further stated that she did not notice any abnormality in the behavior of the accused. Another witness, PW 2 also

testified that he did not notice any abnormality in the behavior of the accused and such testimony remained uncontroverted.

The Apex Court, in Sheralli Wali Mohammedâ€"VS-State of Maharashtra reported in AIR 1972 SC 2443, rejecting the plea of insanity observed,

that law presumes every person of the age of discretion to be sane, unless the contrary is proved. Therefore, the burden to prove the plea of insanity is

obviously with the accused. However, to discharge such burden, it is not necessary for the accused to come to the witness box to adduce any defence

evidence, nor any formal plea of insanity is necessary. The accused can prove its defence even from the evidence adduced by the prosecution, if from

the evidence adduced by the prosecution, it is discernible that the accused was insane at the time of commission of offence and by reason of such

insanity he was incapable of knowing the consequence of his act.

Section 84 of the IPC provides that nothing is an offence which is done by a person,who at the time of doing it, by reason of unsoundness of mind,

is incapable of knowing the nature of the act or what he is doing is either wrong or contrary to law.

The expression “incapable of knowing the nature of the act, or that what he is doing iseither wrong or contrary to law†appearing in the above

provision of Section 84 IPC makes it amply clear, that medical insanity and legal insanity are not synonymous. In order to get the protection u/s 84

IPC, it needs to be proved, that at the time of commission of offence, the accused, by reason of unsoundness of mind was incapable of knowing the

nature of the act or that what he was doing was either wrong or contrary to law. Therefore, insanity or unsoundness of mind as contemplated by

Section 84 IPC is not at all any kind of insanity. It is only such unsoundness of mind, which impairs the cognitive faculties of the mind, which can form

a ground for exception from criminal liability.    Â

It is to be borne in mind, that in order to prove insanity, it may not be necessary toexamine a doctor in all cases. Even in absence of medical

evidence, the insanity as contemplated in Section 84 IPC can be established by other evidence, direct or circumstantial, and in such cases the

circumstances and the conduct of the accused immediately before or after the occurrence or at the time of occurrence are obviously relevant. The

Apex Court, in Dahyabhai- VS- State of Gujarat reported in (1964) 2 Crl. LJ 472 observed, that whether the accused was in such state of mind as to

be entitled to the benefit of Section 84 IPC, can be established from the circumstances which preceded, attended and followed the crime. In the

present case, evidently neither the doctor, nor any other witness was examined by the defence to prove the plea of insanity. The only evidence

available on record is the testimony of PW 1, who deposed during cross-examination that there was abnormality in the behavior of the accused but he

was not a ‘mad’ person. PW 2 stated that he did not notice any abnormality in the behavior of the accused. In the instant case admittedly

immediately after the occurrence, the accused went to the police station and surrendered before the authority. This conduct of the accused

immediately following the crime demonstrates, that he was not deprived of cognitive faculties of his mind, nor he was incapable of knowing the nature

of his act. His conduct of surrendering before the police immediately after the occurrence demonstrates that he was aware that what he had done,

was either wrong or contrary to law. Thus, the conduct of the accused admittedly after the occurrence and the oral testimony of PW 2 that he did not

notice any abnormal behavior at the relevant time, clearly indicates that the accused was not incapable of knowing the nature of the act he was doing

by reason of unsoundness of mind. Thus, the above evidence and conduct of the accused clearly indicates that cognitive faculties of mind of the

appellant was not impaired at the relevant time and as such, the accused shall not be entitled to protection u/s 84 of the IPC, even though, he may be

suffering from some sort of mental illness or medical insanity.

The prosecution having clearly established that the accused killed the victim andcaused death of the deceased by strangulation demonstrates the

clear intention of the accused to cause death of the victim and it leaves no room for doubt, that the accused was liable for commission of offence of

murder as defined under Section 300 IPC. We are therefore, of the firm view, that the conviction rendered and sentence imposed on the

accused/appellant by the learned trial court does not call for interference. Accordingly, we concur with the finding of the learned Addl. Sessions Judge

and uphold the conviction and sentence of the accused/appellant.

In the result, the appeal fails and stands dismissed.

Appreciating the assistance rendered by Mr. Z. Hussain, learned Amicus Curiae, wehereby provide that he will be entitled to Rs.7,000 /- as fees,

which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.

Send back the LCR.Â