Soneswar Boro vs State Of Assam

(MIR ALFAZ ALI, J)

We have heard learned Amicus Curiae, Mr. R. Dev and learned Addl. Public Prosecutor, Mr. M.Phukan, who have also taken us through the

evidence and materials brought on record.

This appeal is directed against the judgment and order dated 13-05-2015, passed by learned Sessions Judge, Nalbari, in Sessions Case No.96/2013.

By the said judgment, learned Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to imprisonment for life and fine of Rs. 2,000/-

(Rupees two thousand) with default stipulation.

As per prosecution case, on 21-02-2013, the appellant chased his wife in order to assault her and the deceased, being his father, restrained him,

whereupon, the appellant hacked his father with an axe and thereby caused his death.

PW 1, Promod Boro lodged the FIR (Ext. -1), on the basis of which police registered Barbari Police Station Case No. 4/2013 u/s 302 and

commenced investigation. Inquest report was prepared by PW 5, Naren Bora and post mortem examination of the body was conducted by Dr. G.N.

Deb Sarma.

Dr. G.N. Deb Sarma (PW 2), who conducted the post mortem examination on the body of the victim, found the following injuries:

“Injuries

Chop wound (size 5 cm x 3 cm x brain deep) extending from right eyebrow (outer part) to right cheek with contused margins.

Laceration (size 4 cm x 2 cm x scalp deep) over left side of occipital scalp transversely 3 cm from midline 18 cm above 7th cervical vertebra.

Laceration (size 3 cm x 1 cm x muscle deep) vertically over left mastoid area.

Laceration (size 3 cm x 1 cm x muscle deep) vertically over right forearm 10cm below elbow.

Abrasion (3cm x 0.5cm) over right forearm 12 cm below elbow.

Rectangular shaped pattern abrasion (5cm x 3cm) over right anterior chest wall 2cm from midline, 8cm below clavicle transversely.

Rectangular shaped pattern abrasion (5cm x 3cm) over left anterior chest wall beginning from midline 10 cm below stern claviculor joint

transversely.

On dissection, anterior chest wall is contused. 4th and 5th ribs on left side fracture 3rd and 4th ribs on right side sternum fractured.

In the opinion of the doctor, death was due to combined effect of coma, haemorrhage and shock, as a result of injuries sustained. All the injuries

were ante mortem. Injury No. 1 was caused by moderately heavy sharp cutting weapon. Rest of the injuries were caused by blunt object. Time of

death was 12 to 24 hours before the post mortem examination.

On conclusion of investigation, police submitted charge-sheet against the appellant u/s 302 IPC and eventually he stood trial.

In course of trial, prosecution examined 5 witnesses to establish the charge. No defence evidence was adduced. On appreciation of evidence,

learned trial court convicted the appellant under Section 302 IPC and awarded sentence as indicated above.

The impugned judgment and the record reveals, that none of the projected ocular witness examined by the prosecution, was eye witness of the

occurrence. PW 1, PW 3 & PW 4 deposed that they came later having come to know about the occurrence and found the victim lying dead.

PW 2 & PW 5 were the doctor and investigating officer respectively. Learned trial court solely relying on the statement made by the appellant

during examination u/s 313 Cr.P.C., recorded conviction and imposed sentence on the appellant. The appellant in his examination u/s 313 Cr.P.C.

confessed to have killed the victim. Save and except the confession of the accused/appellant made during examination u/s 313 Cr.P.C., there was

absolutely no evidence to connect the appellant with the commission of offence in the instant case. Learned amicus curiae submits that conviction

cannot be based solely on the confession made during examination u/s 313 Cr.P.C.

The law as regards use of statement or confession made by the accused during examination u/s 313 CrPC is no longer res-integra. It is the settled

position, that the statement made during examination u/s 313 Cr.P.C or confession made therein, though not considered as evidence stricto-sensu, such

statement or confession can be used for or against the accused by virtue of subsection (4) of section 313 CrPC.

The Apex Court in Ashok Kumar â€"VS- State of Haryana reported in AIR 2010 (SC) 2839 observed that statement u/s 313 CrPC can be used

by the court in so far as it corroborates the case of the prosecution, but conviction per se cannot be based upon the statement u/s 313 CrPC. In Raj

Kumar Singh alias Raju @ Batya â€"VS- State of Rajasthan reported in AIR 2013 SC 3150, the Apex Court observed, that the statement u/s 313

CrPC by the accused cannot be made the sole basis for his conviction. In Ashok Debbarma @ Achak Debbarma -VS- State of Tripura, 2014 4 SCC

747, the apex court held that “ the statement of the accused u/s 313 CrPC for the admission of his guilt or confession as such cannot be made the

sole basis for finding the accused guilty, reason being he is not making the statement on oath, but all the same the confession or admission of guilt can

be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.â€​

What therefore, follows is that conviction solely on the basis of confession made during examination u/s 313 Cr.P.C. is not permissible in absence

of any other evidence or material against the accused. Since the statement u/s 313 CrPC is not recorded on oath nor any warning was given to the

accused before recording the confession u/s 313 CrPC, the danger of such confession not being voluntary also cannot be ruled out. Therefore, when

there is no other evidence or materials to substantiate the prosecution case, in our considered view, conviction, solely on the basis of confession of the

accused during examination u/s 313 CrPC would be unsafe, and as such, the impugned judgment of conviction and sentence deserves to be set aside.

Accordingly, we set aside the conviction and sentence of the accused/appellant and allow the appeal. We also direct, that the appellant be set at

liberty forthwith, if not required in any other case.

Appreciating the assistance rendered by learned Amicus Curiae Mr. R. Dev, we hereby provide that he will be entitled to fees as Legal Aid

Counsel, as per the norms fixed by the Legal Services Authority Regulation. Upon production of a copy of this judgment, Guwahati High Court Legal

Services Committee shall pay the fee to Mr. R. Dev.

Send down the LCR along with a copy of this judgment.