Shri Kishore Thapa vs The State of Sikkim

S.P. Wangdi, J.—This appeal is directed against the judgment of the learned Sessions Judge, East and North Sikkim at Gangtok, dated 12-02-2009 passed in S.T. Case No. 9 of 2004, by which the appellant was convicted for commission of offences under Sections 302/34 of the Indian Penal Code (in short "IPC") along with one Damber Bahadur Chettri and sentenced to undergo simple imprisonment for life and pay a fine of Rs. 5,000/ - and in default of payment of fine to undergo further imprisonment for 6 months and both the sentences were to run concurrently.

The facts of the case material for the purpose of disposal of the appeal are that on a complaint lodged by one Dorjee Tamang, PW2, who is the brother of the deceased, that his younger brother Dawa Tamang had been found murdered in his home, the Sadar Police Station, Gangtok, registered a case u/s 302 IPC against unknown persons and taken up for investigation. On completion of the investigation, charge sheet was filed against one Damber Bahadur Chettri and Kishore Thapa, the appellant, under Sections 450/302/380/34 IPC. In the course of the investigation, it was revealed that on 16-09-2003 at about 5.30 p.m., Nawraj Rai, PW3, the driver of the deceased, who drove his Maruti taxi, deposited the keys of the vehicle and the day''s earnings from the taxi with the neighbour of the deceased and left. In the morning of 17-09-2003, he went to the residence of the deceased as usual to collect the keys but found it locked from outside. The neighbour from whom enquiry was made about the whereabouts of the deceased expressed ignorance and, therefore, he left without collecting the keys. On his visit in evening of the same day, the driver found the residence of the deceased still locked. He found the door looked even in the morning of 18-09-2003. On 19-09-2003 when the same position persisted, the driver went to the house of the elder brother of the deceased to make enquiries. This led to their filing a missing report of the deceased at the Sadar Police Station, Gangtok where they were directed to look for the deceased at his residence. While doing so, they sought permission of the landlord of the house where the deceased was residing to break open the lock of the door but were told that they could do so only with the help of the police. The landlord, however, informed them that they could enter from an alternative route from behind the verandah of the residence of the victim. When the driver took that route and entered the residence of the deceased he could get foul smell emanating from inside and upon entering the bed room, the dead body of the deceased was seen lying on the floor covered with a quilt up to his neck. On seeing this, he rushed back and informed of what he had seen to the brother of the deceased and the landlord who were standing outside. Upon this, the brother of the deceased lodged a written FIR at the Sadar Police Station, Gangtok, regarding the incident.

After registering of a case, the Investigation Officer and the Officer-in-Charge of the Sadar Police Station, went to the residence of the deceased and broke open the lock in presence of respectable members of the locality and upon entering the room they found the body of the deceased lying in a pool of blood covered with quilt, blanket and pillows and was in an advanced state of putrefaction with foul smell emanating therefrom. During the inquest performed on the body, it was found that the neck of the deceased was tied with wires with lacerated punctured wound on his right temple and also lacerated wound on the forehead with his legs tied with a piece of cloth and blisters formed all over the body. Rigor mortis had set in over the entire body which was in a state of putrefaction and his eyes and tongue protruding. Various articles like the copper wire, flexible wire, a piece of printed cloth were seized from the place of occurrence. Sample of blood soaked in cotton was also collected from the place of occurrence. The body was thereafter forwarded to the S.T.N.M. Hospital for autopsy. Post-mortem report indicated that the cause of death was due to combined effect of ante-mortem head injury produced by blunt force and anter-mortem strangulation by ligature. A sample of blood of the deceased soaked on a cotton gauze was collected and seized from the Doctor.

As per the prosecution, investigation revealed that about a few days before his murder, the deceased was found to be in a nervous condition and had stated to some of his friends that one Damber Bahadur Chettri and his friends had been making repeated demands of money from him and that they often borrowed money from him and never returned. Taking a lead from this information, one Damber Bahadur Chettri and the appellant were apprehended from their rented room at Tathangchen and brought to the Sadar Police Station, Gangtok. During interrogation, the appellant made a disclosure statement u/s 27 of the Evidence Act, 1872, whereby he stated that he and one Damber Bahadur Chettri had committed the murder of the deceased and had taken away his "Hi Tec" shoes and other articles from his house in the night of 16-09-2003 which he concealed in his rented house at Upper Tathangchen and that he would hand it over to the police in presence of witnesses. It was further disclosed that the iron hammer with iron pipe handle that he used to hit the deceased had been thrown by him in the bushes above the Arithang Road below Sher-e-Punjab hotel which he could take out in presence of the police and witnesses. We may reproduce below the English translation of the disclosure statement being material for consideration in disposing off this appeal:

Disclosure Statement u/s 27 Evidence Act

Date: 23/9/03

Time: 1400 hrs.

Place: Sadar P.S. Gangtok.

My true statement is this that on 16/9/03 night I Kishore Thapa along with my friend Damber Chettri went to the rented house of Dawa Tamang below the Lal Bazar and took away his Hi-tech shoes from his house after murdering the said Dawa Tamang there at about 10.30 p.m.. I have concealed that shoe in my rented house at upper Tathangchen. I shall hand over the said Hi Tech shoe to the Police and in front of witness.

And the iron hammer with the iron pipe handle which I had used to murder Dawa Tamang have been thrown by me in the bushes above the Arithang Road below Shere Punjab Hotel. I had thrown that while getting back with my friend Damber Chettri after murdering Dawa Tamang in the night of the said 16/9/03. I can also take out that iron hammer in front of Police and witness.

...

It is stated that on the basis of the disclosure statement, the appellant had led the police and the witnesses to the place where he had thrown the iron hammer being the weapon of offence from where the police recovered it which was found to be stained with blood. Thereafter, he led them to his rented room at Upper Tathangchen from where a number of articles were recovered. Amongst the articles so recovered was one "Hi Tec" shoes belonging to the deceased, a polythene bag with the inscription "Baidhya Pakhrim Chikitshalaya Research Centre for Herbal Medicine and Orthopaedics, 16th Mile, Panjong Busty, Algarah, Pagang Gumpa, Kalimpong" with the name and particulars of the deceased person as the patient, one blue jeans pant "Boss Bon" and one blue coloured jeans jacket with blood stains belonging to the appellant.

In our view, before embarking upon examining the merits of the case, it would be essential for us to examine at the threshold as to whether the disclosure statement can be considered as reliable since the entire case of the prosecution hinges on that.

During his arguments before us, Mr. Sudesh Joshi, learned Counsel for the appellant raised the following contentions to assail the validity of the disclosure statement:

That the learned trial Court grossly overlooked the overwhelming evidence appearing on the records that the disclosure statement of the appellant had been obtained under threat by the police and, therefore, no reliance could have been placed by the prosecution as per the settled principle of law laid down in that behalf. While making this submission, our attention was drawn to the following part of the statement of PW14, Karma Loday Lepcha, in the cross-examination which is as under:

...

It is true that the accused No. 2 was being scolded by the police. Accused No. 2 was quite scared in front of the police officer. The statement of accused No. 2 Kishor Thapa was recorded inside the office of the O/C Sadar Thana. Along with me one Arjun Tamang, O/C P.M. Rai and two-three other policemen were present inside the office of the O/C. It is true that since I cannot read and write Nepali I cannot say what has written in Exbt. 10. It is true that when the disclosure statement was being recorded by the police officer he was being scolded also threatened. It is true that I cannot say that the placed from where the articles mentioned in Exbt. 11 were recovered was the accommodation of accused No. 2 KishorThapa....

[emphasis supplied]

In support of his submission, Mr. Joshi has placed the following decision for our consideration:

The State of Bombay Vs. Kathi Kalu Oghad and Others, which specific reference to paragraph 13 thereon the relevant portion of which are reproduced below:

(13) ...It was held by this Court that Section 27 of the Evidence Act did not offend Art. 14 of the Constitution and was, therefore, ''intra vires''. But the question whether it was unconstitutional because it contravened the provisions of Clause (3) of Art. 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of Clause (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion had been used in obtaining the information.

[emphasis supplied]

In the case of K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, , paragraph 20 of which it has been held as follows:

20.... It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now well-settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab (AIR para 30). If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accuse d is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the court for ordering conviction. However, rule of prudence and practice does require that the court seeks corroboration of the retracted confession from other evidence....

[emphasis supplied]

In the facts and circumstances set out above, it was submitted by Mr. Joshi that the conviction of the appellant could not be sustained and, therefore, the impugned judgment and sentence deserved to be quashed and set aside.

Mr. J.B. Pradhan, the learned Public Prosecutor, on the other hand submitted in reply to the above contentions on behalf of the appellant as under:

(i) That the voluntariness of the statement of the appellant made u/s 27 of the Evidence Act is established by the fact that in pursuance of such statement the incriminating blood stained hammer, blood stained jeans and other articles were recovered at his instance.

(ii) That the statement of PW14 in his cross-examination relied upon on behalf of the appellant that when the disclosure statement was being recorded by the police officer he was being scolded and threatened would not necessarily imply that such statement was obtained under duress. This fact stands clearly substantiated by the statement of PW15 who has stated in his cross-examination as under:

...

...It is not a fact that the disclosure statement was recorded under threat and coercions....

(iii) That apart from this, the plea of the statement having been obtained under threat or coercion was not at all taken by the appellant when the circumstance was put to him in the proceedings u/s 313 Cr.P.C. The learned Public Prosecutor has referred to the following portions of the statements made u/s 313 Cr.P.C.:

Q.36. It is in his further evidence that Ext. 10 is your disclosure statement in which Ext.10(b) is his signature. What have you to say?

Ans. I do not know.

Q. 37. It is in the evidence of Pw. 15 Arjun Tamang that you while in Police custody at Sadar Thana had given disclosure statement Ext. 10 to the effect that after committing murder of deceased along with co-accused, you had taken away pair of shoes (Hi-tech) belonging to deceased which he hide in his house at Tathangchen and the same you can show to the Police. What have you to say?

Ans. That is not true.

Q. 38 It is in his further evidence that in your disclosure statement Ext.10 you had also stated to Police that the weapon of offence with which the deceased was murdered i.e. an iron hammer was thrown by you in the bushes near the Radio station quarter at Arithang and that you can point out the same to the Police. What have you to say?

Ans. That is not true.

Q. 39. It is in his further evidence that Ext.10(b) and 10(c) are your signatures and that of himself respectively. What have you to say?

Ans. I did not give any statement as alleged. Police had taken my signature in blank sheet.

From the answers given by him, it can be seen that the appellant has rather denied having made any such statement much less than having made it under coercion or threat. The plea being grossly contradictory deserves to be rejected as being made out as an afterthought.

(iv) It was further the submission of Mr. Pradhan that the case of the prosecution did not rest solely on the disclosure statement but also on other evidence which corroborate that statement. By the seizure memo Exhibit 11 which is incidental to the aforesaid statement, several incriminating articles were seized from the room of the appellant and that such seizure took place at the instance of the appellant. Amongst those seized articles, most incriminating are (i) one "Hi Tec" shoe belonging to the victim; (ii) blood stained blue jeans pant with the brand "Boss Bon" belonging to the appellant and (iii) one polythene bag of "Baidhya Pakhrim Chikitshalaya Research Centre for Herbal Medicine and Orthopaedics" showing the name of the victim as patient.

(v) That the blood stains found on the blue jeans pant of the appellant seized from his room, the sample of the blood of the deceased collected from the place of occurrence and the one from the Doctor at the time when post-mortem was being conducted on the body of the victim, and the gauze swab of blood from the iron hammer were found to be human blood of Group "B". This was evident from the examination report Exhibit 35, the Serological Report Exhibit 36 and the forwarding note forming part of Exhibit 36 thereby clearly establishing the nexus of the accused person with the offence.

(vi) That the appellant has further failed to explain as to how he came to be in possession of "Hi Tec" shoes and polythene bag which contained the name of the victim. In his statement recorded u/s 313 Cr.P.C., he has simply chosen to deny them. We may, for convenience, reproduce below question 41 u/s 313 Cr.P.C. proceedings:

Q. 41. It is in his further evidence that from your residence you produced items like one full sleeve vest, one pair of Hi-tech shoes, one pair of black shoes, one Jeans pants, one Polythene bag bearing print "Baidya Pakhrin Chikitsalaya", some cane sticks, one tyre rubber Tube, one Jeans jacket which the Police seized vide Ext.11 wherein his signature is Ext.11(b). What have you to say?

Ans. That is not true.

(vii) That altogether 71 incriminating circumstances were put to the appellant in order to enable him to explain them but they were simply answered by blunt denials. All those questions amounts to opportunity lost to him and that such blunt and outright denial of everyone would supply the missing link in the chain of circumstances appearing against the appellant. Mr. Pradhan has referred to the case of Joseph Poulo Vs. State of Kerala, in paragraph 14 of which it has been held as under:

The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning u/s 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh). That missing link to connect the accused-appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy.....

[emphasis supplied]

(viii) That the opinion contained in the report of the Medico-Legal Expert Exhibit 1 as to the cause of death categorically states as being due to a combined effect of ante-mortem head injury produced by blunt force and ante-mortem strangulation by ligature. Therefore, in view of all the circumstances which have been established, an unbreakable chain is formed which leads to the indubitable conclusion that it is the appellant who had done to death the victim and, therefore, the conviction and sentence are justified and the impugned judgment would sustain.

We have heard and considered the rival contentions placed by the learned Counsels and have examined the evidence on record that are relevant for the purpose of disposal of this question before us.

The scope of Section 27 of the Evidence Act requires to be considered in the light of the general provisions contained in Section 24 and the prohibitory provisions of Sections 25 and 26 thereof. We may reproduce those Sections below:

Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.--A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court o have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Confession to police officer not to be proved. --No confession made to a police officer, shall be proved as against a person accused of any offence.

Confession by accused while in custody of police not to be proved against him. --No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

How much of information received from accused may be proved. --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, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

As can be seen from the above, Section 27 is an exception made to Sections 25 and 26 in as much as the information received from a person accused of an offence, in the custody of a police officer, so much of such information, as relates distinctly to the facts thereby discovered may be which proved. In other words, subject to the provisions contained in Sections 24, 25 and 26, information disclosed by a person, whether it amounts to confession or not, would be relevant only to the factum of discovery and nothing more. However, the pre-condition for a statement to be admissible u/s 27 is that it should have been made voluntarily bereft of threat or coercion.

As laid down in the cases of. Kathi Kalu Oghat (supra) which was rendered by a Constitution Bench consisting of 11 Judges and K.I. Pavunny (supra) referred to by Mr. Sudesh Joshi, learned Counsel for the appellant, absence of compulsion is sine qua non for acceptance of a statement u/s 27 of the Evidence Act as an acceptable evidence.

The case of Rammi @ Rameshwar etc. Vs. State of Madhya Pradesh, is one in our view which is direct to the point. The relevant portions of which are reproduced below:

Regarding the recovery of weapons, the prosecution could utilize statements attributed to the accused on the basis of which recovery of certain weapons was effected. Section 27 of the Evidence Act permits so much of information which lead to the discovery of a fact to be admitted in evidence. Here the fact discovered by the police was that the accused had hidden the blood-stained weapons. In that sphere what could have been admitted in evidence is only that part of the information which accused had furnished to the police officer and which led to the recovery of the weapons.

True, such information is admissible in evidence u/s 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the Court has to see whether it was voluntarily stated by the accused.

[emphasis supplied]

Testing the case before us on the anvil of the legal position set out above, it is to be examined as to whether the disclosure statement was made voluntarily and free from the element of compulsion.

On examination of the evidence on record, we find that PW14, Karma Loday Lepcha, has made categorical and unambiguous statements in his oral testimony reproduced at paragraph 7 above that at the time when the disclosure statement was being recorded the appellant was being scolded by the police and he was quite scared in front of the police officer. In his testimony he has emphasised this fact and reiterated that the statement of the appellant was recorded in the office of the Officer-in-Charge, Sadar Police Station, Gangtok, and that when the disclosure statement was being recorded by the police officer he was being scolded and also threatened, leaving us with grave doubts as to the voluntariness of the appellant in making the disclosure statement. Those statements have remained uncontroverted and the prosecution neither chose to declare the witness hostile nor recross-examined him. In law, therefore, this part of the evidence should be presumed to have been admitted by the prosecution. As pointed out by the learned Public Prosecutor, PW15 Arjun Tamang, has no doubt denied the version of PW14 that the disclosure statement was made under threat and coercion, but in our view such denial would not help in lending credibility to the disclosure statement. It rather adds to its incredibility in as much as the apparent contradiction in the statement of two witnesses gives rise to grave doubt as to its voluntariness in giving the disclosure statement by the appellant. Under such circumstances, we have no other alternative but to discard this piece of evidence as unreliable.

It is also of relevance to note that in an appeal being Crl.A. No. 1 of 2009 preferred by the co-accused of the appellant, Damber Bahadur Chettri, in this Court against the very impugned judgment under adjudication in the present appeal, a Division Bench of this Court of which one of us (Wangdi, J.) was a party, rejected the disclosure statement and held that it should not be deemed to be a part of the evidence on record. We may reproduce that portion below:

10.Confession statement as quoted above having been made in custody of police and before a police officer, as recorded in the statement itself, could not be proved even against the accused No. 2, except to the extent the same led to discoveries mentioned above. When the statement of the accused No. 2 to the effect that I and the appellant went to the rented room of the deceased and killed him could not be proved against the accused No. 2, no reliance thereon could be placed against the appellant. That part of the statement, in law, should be deemed to be no part of the evidence on record. In the instant case, accused No. 2 was not examined by the prosecution.

[emphasis supplied]

This case is based solely on circumstantial evidence of which the disclosure statement is the most vital link in the chain of circumstances. When we have found that vital circumstance to be unreliable, the chain of circumstances would obviously be broken and, a circumstance which is quite fatal to the prosecution case. As already observed, the disclosure statement is the genesis of the prosecution case resulting in the discovery of the incriminating articles that form the other circumstances appearing against the appellant. Under such circumstances, we have no hesitation in holding that the conviction and sentence of the appellant deserves to be set aside.

Apart from the above, we feel it also necessary to observe that as per the Medico-Legal Expert, the cause of death of the deceased was due to combined effect of ante-mortem head injury produced by blunt force and ante-mortem strangulation by ligature. Curiously enough, we do not find any evidence as to who caused the strangulation although it has come in evidence that the deceased was tied with a copper wire Exhibit M.O. I and a flexible insulated wire Exhibit M.O. II around his neck and also that his legs were tied with a piece of cloth Exhibit M.O. III. There is total absence of discussion as to how the appellant was linked to that part of the offence. The entire focus of the trial Court has been on the disclosure statement and what have followed therefrom. Conjectures and surmises appear to have crept in while rendering the impugned judgment, apart from the fact that it had overlooked the glaring evidence of the inadequacy in the disclosure statement as discussed above thereby mis-directing itself in passing the impugned judgment.

The failure of the trial Court to apply its judicious mind in deciding the case also reflects the inadequacy in the assistance it received from the prosecution at the trial. Without stating much further, we only observe that there is an urgent need to train the Investigating Officers and Public Prosecutors, if not weeding out the inefficient, in order to make criminal justice system in the State more effective.

In the result, the appeal is allowed. The impugned judgment and sentence passed by the learned Sessions Judge, East and North Sikkim at Gangtok is hereby set aside and the appellant stands acquitted.

A copy of this judgment be transmitted to the learned Sessions Court for its due compliance.

Records of the learned Court below be returned forthwith.