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IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE AT
DIBRUGARH.
Present : Sri A.B.Siddique, Addl. Sessions Judge, Dibrugarh.
Sessions Case No. 212/2013. G.R. case No. 262/09.
State of Assam -Vs-
Sri Geju Praja. ………. Accused
Charge U/s 302 IPC.
Advocate Appeared: Mrs. C. Duttta, APP ……….. ………..for the State
Mr. G.C. Phukan, Advocate…………for the accused
Date of Evidence on : 5.2.2014, 22.7.2014 19.8.14,16.9.2014, 11.12.2014, 15.2.2015 & 7.4.2015.
Date of Argument on : 18.5.2015., 11.06.2015
Date of Judgment on : 24.06.2015
Judgment delivered on : 25.06.2015
J U D G M E N T
(1) Prosecution case in brief is that on 15.12.2008, one Sri Rajesh
Proja lodged an FIR before the Officer-in-Charge, Tengakhat Police
Station to the effect that on 14.12.2008, someone killed his brother
Monsai Proja by giving dao blow and threw his dead body by the side of
road. Accordingly a case being Tengakhat P.S. Case No.119/08, U/s 302
IPC was lodged and commenced investigation. During investigation
arrested the accused named above and on completion of investigation
submitted charge sheet U/s.302 IPC against the accused person.
(2) The accused person arrested and produced / appeared before
the lower Court and after furnishing him the necessary copies etc. the
2
case was committed to the Court of Sessions being the offence triable
exclusively by the said Court.
(3) On production of the accused person before the Court and
after hearing the learned counsel for both sides on the point of charge
and considering the case record and the statements of the witnesses
including the documents referred U/s 173 of Cr.P.C. formal charge U/s
302 IPC was framed against the accused person. Charge explained to
the accused person to which he pleaded not guilty and claimed to be
tried.
(4) In order to bring home the charge against the accused person
prosecution examined as many as ten witnesses including the I/O and
doctor and the defence examined none. The plea of defence is of total
denial. The accused person in their statements recorded U/s 313 Cr.P.C.
denied the allegations leveled against him and pleaded that he is
innocent.
POINTS FOR DETERMINATION:
(5) Whether the accused person on 14.12.2008 committed murder of
Monsai Praja as alleged ?
DECISION AND REASONS THEREOF:
(6) Now let us start with the evidence of the P.W.1, Sri Rajesh
Praja, who deposed that the occurrence took place 5/6 years ago. On
the date of incident his elder brother Mansha Proja went to see the
cockfight near the river, at Rongamati. In the evening when Monsha
Proja was returning from Rangamati on his way to home someone
assaulted him with dao and killed him. The dead body of his elder
3
brother was found near the house of one Cheniram Kurmi in the drain
adjacent to the road. The incident took place about 1 KM away from
residence of this PW. Some villagers informed him on the same day that
dead body of Mahesh Proja was lying in a drain near the road. On
hearing about the same, he went to the house of village head man and
told him the entire fact which he heard from the villagers. Thereafter,
police came and took him with them the place where the dead body was
found. This PW found the dead lying in the drain near the house of
Cheniram Kurmi in supine position. Thereafter police took the dead
body to the police station. This PW also accompanied the police to
police station. This P.W. saw cut injuries on the cheek and his two
thumb of two hands were cut. There is blood stain over the body. This
witness heard that his elder brother has been killed by this accused. The
ejahar was written by one Puna, Secretary of Bhajoni village. Ext. 1 is
the ejahar where he put his thumb impression.
During cross-examination he has stated that he does not
personally know about the incident. He does not know the content of
the ejahar.
From the testimony of this witness it is found that the brother of this
informant was killed by someone. His brother i.e Monsai Praja’s dead
body was found in a drain. This P.W. saw cut injuries on the cheek and
his two thumb of two hands were cut. There is blood stain over the
body.
4
Now let us see whether the death was homicidal ?
(7) Dr. Tarun Kr. Das, who appeared as P.W. 6, has deposed that
On 15.12.2008 he was in the capacity of Assistant Professor Department
of Forensic Medicine, Assam Medical College & Hospital, Dibrugarh. On
that day he conducted post mortem examination on the dead body of
Mansai Proja age 40 years S/O Late Mahesh Proja of Bhajoni Gaon,
Tengakhat , in connection with Tengakhat P.S. Case No. 1199/08 U/s
302 IPC. The deceased was escorted by Constable No. 384 Bikash
Barpatragohain and identified by his younger brother Sri Rajesh Proja.
External examination ; One male dead body of average built, dark
brown complexion dressed in one long pant, one white half shirt, one
yellow ganjee, one brown half pant. Body and clothes are stained by
blood at places. Eyes found closed. Mouth closed. Body cold on touch.
Rigor mortis present all over the body. Body looks pale. Anus , penis
and scortum found healthy.
I N J U R Y
(1) One sharp cutting weapon of size 10 cm X 1.5 cm X bone deep
present over right side of face, and placed transversely at the
level of tragus of right ear , ear lobule is also cut. Anterior end
present on 4 cm below outer angle of right eyes, margins are
smooth, well defined, adherent blood clots present on cut
surface.
(2) One sharp cut injury of size 9 cm X 1 cm X bone deep present on
right maxilla, placed transversely, 1 cm below injury No. 1 and
anterior end situated from the 5 cm right from right angle of
mouth, margins are smooth and well defined.
5
(3) Sharp cut injury of right side of face and neck of size 13 cm X
3 cm X bone deep present transversely situated 1 cm below the
injury No. 2.
Mandible right side neck muscles carotide on vessels and other
neck structure is cut and separated. Margins are smooth , well
defined and adherent blood clots present on cut surface.
(4) Sharp cut injury of size 5 cm X 1 cm X bone deep present
over right frontal reason in saggital plane anterior end situated 3
cm b\above right eyebrow. Margins are smooth well defined,
adherent blood clots present on cut surface.
(5) Sharp cut injury of scalp of size 5 cm X 1 cm X bone deep
present over right parietal region, obliquely 7 cm above the
right ear root. Margins are smooth well defined adherent, blood
clots present.
(6) On left hand fingers are cut and missing except the thumb
finger. Margins are smooth well defined adherent blood clots
present.
(7) On right hand thumb finger is cut and missing margins
smooth well defined adherent and blood clots present Cut injury
size 5 cm X 1 cm X muscle deep present over medial aspect of
left knee joint. Margins are smooth well defined adherent blood
clots present.
(8) Sharp cut injury of size 8 cm X 2 cm X 2 cm deep present
on lateral aspect on right thigh, 18 cm below the right iliac crest.
Margins are smooth well defined adherent blood clots.
Ligature mark not found.
On dissection neck injury as described.
O P I N I O N
Opinion to the cause of death – Death was due to shock and
hemorrhage resulting from the injuries as described. All the injuries
described were ante mortem and caused by heavy sharp cutting
6
weapon and homicidal in nature. Time since death 12 hours to 24 hours
approximately.
Ext. 2 is the post mortem report and Ext. 2(1) is his signature. He
placed this Post mortem report before the Head of the Department. Ext-
2(2) is the signature of Dr. S.I. Borbhuyan who concurred with his
opinion. At the time of post mortem examination dead body challan was
placed before him. Ext. 3 is the dead body challan and Ext. 3(1) is his
signature.
Doctors version is corroborated with the version of PW-1 . Injury
seen by the PW-1 is found by the doctor in the post mortem
examination . Al the injuries were ante mortem caused by sharp cutting
weapon. Hence, from the evidence of PW-1 and the doctor, this court is
of the opinion that death of the deceased was homicidal.
Who caused the death ?
(8) PW-1 is the informant , but he did not mention the name of any
person. Dead body was recovered but nobody has seen the
occurrence. In fact there is no eye witness. Police arrest the present
accused person in connection with this case. Now let us see whether the
accused is the author of the offence or not . To be certain this let us see
what the other witnesses testify.
(9) P.W.2, Sri Cheniram Kurmi, has deposed that the incident
took place 1 and 1 ½ year ago. On that day, he went to shop from
market and on his return from shop when he was on the way, he found
one dead body was lying in the drain. On seeing the same he called
villagers who gathered at the place of occurrence. He could not
recognized the dead body, He informed police and also Gaon Burah.
7
He recognized the dead body as the deceased was co-villager. Police
recorded his statement.
During cross-examination, he stated that he does not know
who committed the offence.
(10) P.W. 3, Sri Tileswar Modi, has deposed that on the date of
occurrence this witness was in his house. On the next day morning the
mother of the deceased called him and stated before him that Monsha
Proja is dead. He told that some unknown person has killed him on the
previous night. This witness went to the police station and he has seen
the dead body and thereafter he came back to his house. This PW saw
the blood stain on the body of the deceased and thereafter he came
back to his house. He do not know how the incident took place.
(11) P.W. 4, Sri Pradip Proja has stated that on the day of
occurrence one Cheniram Proja informed him that a dead body of a
person was lying in the 'nallah' nearby the tea estate. This witness
along with the neighbors went to see the dead body at the place of
occurrence and saw that Monsai Proja was lying dead and Cheniram
Proja informed police and police came to the place of occurrence.
During cross-examination he has stated that he does not
know how the occurrence took place.
(12) P.W. 5, Sri Prodip Proja, has stated that one day at night
one Cheniram Kurmi came to their house and informed him that one
person was lying dead nearby drain of the tea estate. He went to the
place of occurrence with village people and came to know that the
dead body was of Monsai Proja. Village people informed police about the
8
matter and police came to the place of occurrence and took his
statement.
During cross-examination, he stated that he does not know who
killed the deceased. He has not seen the occurrence.
These PW-2, PW-3, PW-4, PW-6 have stated that they saw the dead
body but who killed the deceased none above witnesses put any light on
that point.
(13) P.W. 7, Sri Jiten Proja, has deposed that he knows the
accused person. He is the neighbor of the accused. He also knows the
informant Rajesh Proja and deceased Monsai Proja. About six years
ago Monsai Proja died. He came to know from village people that
someone cut Monsai Proja due to which he died. Later on police came to
the place of occurrence and took his statement. Police showed him a
dao and deceased and took his signature. At that time, when police
seized the dao many people gathered near the place. Ext. 2 is the
seizure list. Ext. 2(1) is his signature.
During cross examination, this witness has stated that he
does not know the content of Ext. 2. He also does not know why police
took his signature. Police took his signature on blank paper.
This witness is a seizure witness. He testifies that police
showed him a dao and at the time of seizure of dao many people
gathers there. Now let us see whether the seized dao was the weapon
used in killing the deceased.
(14) P.W.8, Sri Debaru Proja, has stated that he knows the
accused person. He also know the informant Rajesh Proja. He knows
deceased Monsai Proja. About 3 / 4 years ago he died. He heard that
deceased was murdered. On the day of occurrence, he saw police came
9
into the house of the accused person. He along with Gautam went to the
house of accused along with police. The accused showed to police
the place where the dao was buried and police dug out the soil
and took out a dao without handle as shown by the accused.
He saw the police taking out the dao and he was present there. Other
people of the neighbors were also present there. Police took his
signature in the seizure list. Ext. 2 is the seizure list and Ext. 2(2) is his
signature. In the seizure list. M. Ext.-1 is the dao around 10 ½
inches long which is shown to the witness and he has identified the
same. Police recorded his statement. When police interrogated the
accused, he confessed in front of him and other villagers that he had
murdered the deceased Monsai Proja.
During cross-examination he has stated that he has not
seen the occurrence. He does not know who committed the offence
with the dao recovered by police. He heard from others about the
occurrence. Police did not produce him before the Court for recording
his statement U/s 164 Cr.P.C. regarding the incident. His house is at
about 1 KM away from the house of the accused. He went to the
place of occurrence. At the time of occurrence there was
gathering of about 100 people. He also stated that he does not know
the content of seizure list. He put his signature on seizure list as told by
police.
This witness is also a seizure witness. This witness testifies
that he saw that the accused showed to police the place where the dao
was buried and police dug out the soil and took out a dao without
handle as shown by the accused. Defence could shake his deposition
rather affirms that this witness was present in the place of occurrence
and other people was also there. This witness gave specific name of one
person Gautom. Let us see what Gautom Testifies.
(15) P.W. 9, Sri Gautam Baruah, has deposed that he knows
the accused person. He also knows the informant Rajesh Proja. Around 3
/ 4 years back the deceased died. One day he saw police came to the
accused's house accompanied by the accused person and seeing the
police and accused they also went to the accused's house. He and
10
Debaru Proja and other villagers went to the accused's house. Police
interrogated the accused and accused showed the place where
the dao was buried which was within the boundary of the
accused's house. Accused himself dug out the dao from the soil.
The place where he dug out the dao was just in front of his
residence. He was present when the dao was taken out from
the ground and had seen digging out the dao. Police took their
signature in the seizure list. Ext. 2 is the seizure list and Ext. 2(3) is his
thumb impression in seizure list in presence of police. He has seen the
dao in the Court today. M. Ext.-1 is the dao measuring 10 ½ Inches
which he has seen today.
During cross-examination, he has stated that he does
not remember the date and time of occurrence. He cannot say
exactly that M. Ext.-1 is the same dao which was seized by police on
the day of occurrence. The dao was not shown to me. He put his
signature on blank paper. Police did not record his statement. He also
stated that he has not seen the occurrence. He also does not know who
committed the offence. When Police came to the place of occurrence,
Gaon Bura and other villagers were present.
This witness is also a seizure witness. This witness also
testifies that accused showed the place where the dao was buried
which was within the boundary of the accused's house. Accused himself
dug out the dao from the soil. The place where he dug out the dao was
just in front of his residence. He was present when the dao was taken
out from the ground and had seen digging out the dao. However, in
cross-examination he deposed that whether it was the same dao nor not
and the police has take his signature in a blank paper . This witness’s
inability to identify the is not fatal as this may be happen due to
passage of time. But is rightly identified that by PW-8. Now let us see
whether police took his signature in blank paper.
(16) P.W. 10, Sri Mrinal Kumar Das/ Investiating Officer,
has stated that on 15.12.208, he was working as Officer-in-Charge of
Tengakhat Police Station. On that day, one Rajesh Proja lodged an
ejahar in connection with the murder of his elder brother Sri Monsai
11
Proja. On receipt of ejahar he registered a case and took up the
investigation of the case. He went to the place of occurrence , and drew
a sketch map of the place of occurrence. Ext.-5 is the Sketch Map and
Ext. 5(1) is his signature. He saw the dead body lying in a drain. He
informed Magistrate and in presence of the Magistrate made the
inquest in presence of other witnesses. Ext.-7, is the Inquest and Ext.
7(1) is signature of Magistrate. He recorded the statements of six
witnesses. Thereafter he came to know that one person Geju Proja have
connection in this murder. He apprehended the accused.
When the Investigating Officer interrogated the accused person,
he confessed that on 14.12.2008, evening at 6.30 pm he killed
Monsai Proja with a dao while he was sitting in front of the
road of the house of Cheniram Kurmi. When Mosai Proja was
sitting, the accused murdered Monsai Proja with a dao. After
committing the crime, he set fire the dao in his house.
Remaining portion of the dao was dug out by the accused in the
court yard of his house. He also confessed before this P.W.
that after about some years back Monsai Proja and his father
Mahesh Proja physically assaulted the accused person for which
the accused father sustained injury and for that incident the
accused's father lost his right leg for ever. After taking
confession the accused led him and show the dao which was
kept concealed in the courtyard of the accused person under
the earth. He also drew rough sketch map of the place of occurrence.
Ext. 2 is the seizure list and Ext. 2(4) is the signature of this PW. He
sent the dead body for post mortem examination and collected post
mortem report. He also submitted charge sheet against the accused
person U/s. 302 IPC. Ext. 7 is the charge sheet and Ext. 7(1) is his
signature.
During cross-examination this PW stated that he has not
sent the seized dao to FSL. This PW denied that he wrongly submitted
the charge sheet against the accused. The I/O has admitted that he
seized the articles in presence of Sarkari Gaon Burah.
12
This witness testifies that the accused person confessed
before him that he killed the deceased and showed the weapon ‘dao’
and place where dao was concealed. This witness denies that he took
signature of the seizure in a blank paper.
(17) The accused person is examined U/s 313 CrPC, the accused
person denied the allegation and claimed that he is innocent. he denied
that that he has any bad relation with the informant.
Motive for Murder:
(18) In circumstantial evidence motive is very important cause to
commit crime. In this case the accused stated before PW-10 that some
years back Monsai Proja and his father Mahesh Proja physically
assaulted the accused person’s father for which father of the accused
sustained injury and for that incident the accused's father lost his right
leg for ever. This accused has vowed to take revenge and on getting
chance has killed the deceased. Hence, Motive is clear to commit the
murder of Monsai Praja.
(19) PW-10 is the investigator. He recorded that confessional
statement of the accused person. He took the signature of the accused
in the statement. Then he proceeded to the place of as shown by the
accused person. The accused showed the place where the murder
weapon was concealed. On digging the place a dao was discovered
from front of the house of the accused. PW-10 seized dao in presence of
PW-7, PW-8 and PW-9. Said Dao was exhibited as material Ext-1. The
demolish the testimony of this witness in cross-examination.
Thus, independent PW-8 and PW-9 corroborates the
murder weapon was dao and the place was in front of the house of the
accused. PW-7 corroborates the murder weapon. While PW-10
corroborates the entire story behind the murder. From the Testimony
of PW-7, PW-8, PW-9 and PW-10 this court is of the opinion the accused
Geju Praja is the author of the murder.
(20) Now, the question is whether his statement before the police
and leading to discovery is admissible in law. let us see some decided
13
cases on the point of disclosure statement of the accused leading to
discovery.
In STATE OF U.P.-VS- DEOMAN UPADHAYA AIR 1960 SC 112
Hon’ble Supreme Court has elaborately discussed the matter regarding
making of disclosure statement while in police custody. For better
reference the relevant paragraph is reproduced below:
“7. Section 27 of the Indian Evidence Act is one of a
group of sections relating to the relevancy of certain
forms of admissions made by persons accused of
offences. Sections 24 to 30 of the Act deal with
admissibility of confessions i.e., of statements made by a
person stating or suggesting that he has committed a
crime. By S. 24, in a criminal proceeding against a
person, a confession made by him is inadmissible if it
appears to the court to have been caused by
inducement, threat or promise having reference to the
charge and proceeding from a person in authority .By S.
25, there is an absolute ban against proof at the trial of a
person accused of an offence, of a confession made to a
police officer. The ban which is partial under S. 24 and
complete under S. 25 applies equally whether or not the
person against whom evidence is sought to be led in a
criminal trial was at the time of making the confession in
custody. For the ban to be effective the person need not
have been accused of an offence when he made the
confession. The expression, “accused person” in S. 24
and the expression “a person accused of any offence”
have the same connotation, and describe the person
against whom evidence is sought to be led in a criminal
proceeding. As observed in Narayan Swami vs. Emperor,
66 Ind App 66, by the Judicial Committee of the Privy
Council, “S. 25 covers a confession made to a police
officer before any investigation has begun or otherwise
14
not in the course of an investigation.” The adjectival
clause “accused of any offence” is therefore descriptive
of the person against whom a confessional statement
made by him is declared not provable, and does not
predicate a condition of that person at the time of
making the statement for the applicability of the ban.
Section 26 of the Indian Evidence Act by its first
paragraph provides “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.
Whereas S. 25 prohibits proof of a confession made by a
person to a police officer whether or not at the time of
making the confession, he was in custody, S. 26 prohibits
proof of a confession by a person in custody made to any
person unless the confession is made in the immediate
presence of a Magistrate. Section 27 which is in the form
of a proviso states “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.”
The expression, “accused of any offence” in S. 27, as in
S. 25, is also descriptive of the person concerned, i.e.,
against a person who is accused of an offence, S. 27
renders provable certain statements made by him while
he was in the custody of a police officer. Section 27 is
founded on the principle that even though the evidence
relating to confessional or other statements made by a
person, whilst he is in the custody of a police officer, is
tainted and therefore inadmissible, if the truth of the
information given by him is assured by the discovery of a
fact, it may be presumed to be untainted and is therefore
declared provable in so far as it distinctly relates to the
fact thereby discovered. Even though S. 27 is in the form
of a proviso to S. 26, the two sections do not necessarily
15
deal with evidence of the same character. The ban
imposed by S. 26 is against the proof of confessional
statements. Section 27 is concerned with the proof of
information whether it amounts to a confession or not,
which leads to discovery of facts. By S. 27, even if a fact
is deposed to as discovered in consequence of
information received, only that much of the information is
admissible as distinctly relates to the fact discovered. By
S. 26, a confession made in the presence of a Magistrate
is made provable in its entirety.
8. Section 162 of the Cr.. P. C. also enacts a rule of evi -
dence. This section in so far as it is material for purposes
of this case, prohibits, but not so as to affect the admissi-
bility of information to the extent permissible under S. 27
of the Evidence Act, use of statements by any person to
a police officer in the course of an investigation under
Ch. 14 of the Code in any enquiry or trial in which such
person in charged for any offence, under investigation at
the time when the statement was made.
9. On an analysis of Ss. 24 to 27 of the Indian Evidence
Act, and S. 162 of the Code of Criminal Procedure, the
following material propositions emerge:
(a) Whether a person is in custody or outside, a con-
fession made by him to a police officer or the making
of which is procured by inducement, threat or promise
having reference to the charge against him and pro-
ceeding from a person in authority, is not provable
against him in any proceeding in which he is charged
with the commission of an offence.
(b) A confession made by a person whilst he is in the
custody of a police officer to a person other than a po-
lice officer is not provable in a proceeding in which he
is charged with the commission of an offence unless it
is made in the immediate presence of Magistrate.
16
(c) That part of the information given by a person
whilst in police custody whether the information is con-
fessional or otherwise, which distinctly relates to the
fact thereby discovered but no more, is provable in a
proceeding in which he is charged with the commission
of an offence.
(d) A statement whether it amounts to a confession or
not made by a person when he is not in custody, to an-
other person such latter person not being a police offi-
cer may be proved if it is otherwise relevant.
(e) A statement made by a person to a police officer in
the course of an investigation of an offence under Ch.
14 of the Cr. P. C., cannot except to the extent permit-
ted by S. 27 of the Indian Evidence Act, be used for any
purpose at any enquiry or trial in respect of any offence
under investigation at the time when the statement
was made in which he is concerned as a person ac-
cused of an offence.
10. A confession made by a person not an custody is there-
fore admissible in evidence against him in a criminal proceed-
ing unless it is procured in the manner described in S. 24, or
is made to a police officer. A statement made by a person, if it
is not confessional is provable in all proceedings unless it is
made to a police officer in the course of an investigation, and
the proceeding in which it is sought to be proved is one for
the trial of that person for the offence under investigation
when he made that statement. Whereas information given by
a person in custody is to the extent to which it distinctly re-
lates to a fact thereby discovered is made provable, by S. 162
of the Cr. P. C., such information given by a person not in cus-
tody to a police officer in the course of the investigation of an
offence is not provable. This distinction may appear to be
somewhat paradoxical. Sections 25 and 26 were enacted not
because the law presumed the statements to be untrue, but
having regard to the tainted nature of the source of the evi-
17
dence, prohibited them form being received in evidence. It is
manifest that the class of persons who needed protection
most were those in the custody of the police and persons not
in the custody of police did not need the same degree of pro-
tection. But by the combined operation of S. 27 of the Evi-
dence Act and S. 162 of the Code of Criminal Procedure, the
admissibility in evidence against a person in a criminal pro-
ceeding of a statement made to a police officer leading to the
discovery of a fact depends for its determination on the ques-
tion whether he was in custody at the time of making the
statement. It is provable if he was in custody at the time
when he made it, otherwise it is not.
11. Are persons in custody, by this distinction deprived of
“equality before the law, or the equal protection of the laws”
within the meaning of Art. 14 of the Constitution? By the
equal protection of the laws guaranteed by Art. 14 of the Con-
stitution, it is not predicated that all laws must be uniform and
universally applicable; the guarantee merely forbids improper
or invidious distinctions by conferring rights or privileges upon
a class of persons arbitrarily selected from out of a larger
group who are similarly circumstanced, and between whom
and others not so favoured, no distinction reasonably justify-
ing different treatment exists:it does not give a guarantee of
the same or similar treatment to all persons without reference
to the relevant differences. The State has a wide discretion in
the selection of classes amongst persons, things or transac-
tions for purposes of legislation. Between persons in custody
and persons not in custody, distinction has evidently been
made by the Evidence Act in some matters and they are dif-
ferently treated. Persons who were, at the time when the
statements sought to be proved were made, in custody have
been given in some matters greater protection compared to
persons not in custody. Confessional or other statements
made by persons not in custody may be admitted in evidence,
unless such statements fall within Ss. 24 and 25 whereas all
confessional statements made by persons in custody except
18
those in the presence of a Magistrate are not provable. This
distinction between persons in custody and persons not in
custody, in the context of admissibility of statements made by
them concerning the offence charged cannot be called arbi-
trary, artificial or evasive:the legislature has made a real dis-
tinction between these two classes, and has enacted distinct
rules about admissibility of statements confessional or other-
wise made by them.
12. There is nothing in the Evidence Act which precludes
proof of information given by a person not in custody which
relates to the facts thereby discovered: it is by virtue of the
ban imposed by S. 162 of the Cr. P. C., that a statement made
to a police officer in the course of the investigation of an of-
fence under Ch. 14 by a person not in police custody at the
time it was made even if it leads to the discovery of a fact is
not provable against him at the trial for that offence. But the
distinction which it may be remembered does not proceed on
the same lines as under the Evidence Act, arising in the mat-
ter of admissibility of such statements made to the police offi-
cer in the course of an investigation between persons in cus-
tody and persons not in custody, has little practical signifi -
cance. When a person not in custody approaches a police offi-
cer investigating an offence and offers to give information
leading to the discovery of a fact, having a bearing on the
charge which may be made against him he may appropriately
be deemed to have surrendered himself to the police. Station
46 of the Code of Criminal Procedure does not contemplate
any formality before a person can be said to be taken in cus-
tody: submission to the custody by word or action by a person
is sufficient. A person directly giving to a police officer by
word of mouth information which may be used as evidence
against him, may be deemed to have submitted himself to the
“custody” of the police officer within the meaning of S. 27 of
the Indian Evidence Act: Legal Remembrancer vs. Lalit Mohan
Singh, ILR 49 Cal 167, Santokhi Beldar. V. Emperor, ILR 12 Pat
241 . Exceptional cases may certainly be imagined in which a
19
person may give information without presenting himself be-
fore a police officer who is investigating an offence. For in-
stance, he may write a letter and give such information or
may send a telephonic or other message to the police officer.
But in considering whether a statute is unconstitutional on the
ground that the law has given equal treatment to all persons
similarly circumstanced, it must be remembered that the leg-
islature has to deal with practical problems: the question is
not to be judged by merely enumerating other theoretically
possible situations to which the statute might have been but
is not applied. As has often been said in considering whether
there has been a denial of the equal protection of the laws, a
doctrinaire approach is to be avoided. A person who has com-
mitted an offence, but who is not in custody, normally would
not without surrendering himself to the police give informa-
tion voluntarily to a police officer investigating the commis-
sion of that offence leading to the discovery of material evi-
dence supporting a charge against him for the commission of
the offence. The Parliament enacts laws to deal with practical
problems which are likely to arise in the affairs of men. Theo-
retical possibility of an offender not in custody because the
police officer investigating the offence has not been able to
get at any evidence against him giving information to the po-
lice officer, without surrendering himself to the police which
may lead to the discovery of an important fact by the police,
cannot be ruled out; but such an occurrence would indeed be
rare. Our attention has not been invited to any case in which
it was even alleged that information leading to the discovery
of a fact which may be used in evidence against a person was
given by him to a police officer in the course of investigation
without such person having surrendered himself. Cases like
Deonandan Dusadh vs. Kind Emperor, ILR 7 Pat 411, ILR 12
Pat 241, Durlav Namasudra vs. Emperor, ILR 59 Cal 1040, In
re Mottai Thevar, AIR 1952 Mad 586, In re Peria Guruswami,
ILR (1942) Mad 77, Bharosa Ramdayal vs. Emperor, ILR (1940)
Nag 679 and Jalla vs. Emperor, AIR 1931 Lah 278 and others
20
to which our attention was invited are all cases in which the
accused persons who made statements leading to discovery
of facts were either in the actual custody of police officers or
had surrendered themselves to the police at the time of or be-
fore making the statements attributed to them, and do not il-
lustrate the existence of a real and substantial class of per-
sons not in custody giving information to police officers in the
course of investigation leading to discovery of facts which
may be used as evidence against those persons.”
The same view is applied in Mohibur Rahman and another-Vs-State
of Assam, AIR 2002 SC 3064=(2002) 6 SCC 715 and Chandra
Bania-Vs- State of Assam (2011) 6 SCALE 721
In the instant case, the accused made a disclosure statement before the
police and the accused led the police to the place where the murder
weapon i.e dao was concealed. The place of the recovery was also in
front of the house of the accused. Considering all this situation his
statement leading to discover is admissible in law it can be said that
the accused is the author of the crime.
(21). Culpable Homicide or Murder :
In this case the accused person wanted to take revenge against Monsai
Praja and had been waiting for opportunity. On the date of incident he
got the opportunity. He inflicted as much as 8 injuries to Monsai Praja
which show the gravity of intention to take revenge.
No provocation was given to the accused. The deceased
did not got any chance to retaliate, in fact the deceased was in a
drunken condition. This case does not fall any of the exception of
section 300 IPC. Hence, the offence is a clean murder and not culpable
homicide amounting to murder.
(22) Thus, considering the entire evidence on record and the facts
and circumstances, in the instant case, it is found that the prosecution
21
has been able to prove the charge U/s 302 IPC against accused Geju
Praja beyond reasonable doubt. Hence. Accused Geju Praja is found
guilty for committing murder of Monsai Praja.
C O N V I C T I O N
( 23) In the result, accused Geju Praja is found guilty for committing
murder of Monsai Praja which is an offence punishable U/S 302 IPC .
Hence, he is convicted for his offence accordingly.
HEARING ON SENTENCE U/S 235(2) CrPC
(24) This is not a case where the provisions of Probation of Offenders
Act is applicable. The accused Geju Praja is heard on the point of
sentence. The hearing of the accused U/s. 235(2) Cr. P. C. on the point
of sentence is recorded in a separate sheet in the form of questions and
answers and shall form part of the record. He is the earning member of
his family. In his absence his family will be in great hardship.
Learned counsel for the accused submits that the accused person is a
daily labour and he is only bread earner in his family. Considering his
family condition, leniency may be shown to accused while passing
sentence.
S E N T E N C E U/S 235(2) CrPC
(25) I have perused the provision of section U/S 302 IPC where is
minimum punishment is imprisonment for life and maximum
punishment is hanging and also fine. In the instant case . the convict
killed him without having reasonable ground. The convict has taken
revenge upon his enemy’s thereby caused a cool blooded murder.
Though the accused inflicted as much as 8 injuries to the deceased
22
While balancing crime and the criminal this case does not fall within the
rarest of rare category. Hence, this court is of the opinion that
imprisonment for life will serve the purpose.
Considering all, convict Geju Praja is sentenced to undergo
Rigorous Imprisonment for life and a fine of Rs.3,000/- (Rupees
three thousand) only in default, further Simple Imprisonment for 6
(six) months for committing the offence U/s 302 IPC.
The fine amount, if realized be deposited to State exchequer.
The accused be sent to jail to serve the sentence passed against him.
Furnish a copy of the judgment free of cost to the convicted person.
Seized articles be destroyed in due course.
This judgment is delivered in the open court and order of conviction and
sentence is given under my hand and seal of this court, on this 25th day
of June,2015
(A.B.Siddique) Addl Sessions Judge, Dibrugarh
Dictated and corrected by me
Addl Sessions Judge, Dibrugarh.
23
APPENDIX
Prosecution witnesses :
P.W.1 – Sri Rajesh Proja.
P.W.2 – Sri Cheniram Kurmi.
P.W. 3 – Sri Tileswar Modi.
P.W. 4 – Sri Pradip Proja.
P.W. 5 – Sri Prodip Proja.
P.W. 6 – Dr. Tarun Kr. Das.
P.W. 7 – Sri Jiten Proja.
P.W. 8 , Sri Debaru Proja.
P.W. 9 – Sri Gautam Baruah.
P.W. 10 – Sri Mrinal Kumar Das.
Prosecution Exhibits.
Ext. 1 - FIR.
Ext. 2 – Seizure list.
Ext. 5 – Rough Sketch Map of the PO.
Ext. 6 – Sketch Map.
Ext. 7 – Inquest Report.
Ext. 7 – Charge sheet.
]
(A.B. Siddique), Addl. Sessions Judge,
Dibrugarh.
24
Sessions Case No. 212/2013.
O R D E R
25.06.2015
Accused is produced from Jail Hajot.
Heard argument on the point of sentence.
Judgment is delivered in the open court. Judgment is written in separate
sheets and is kept with the case record as apart of the proceeding.
Thus, considering the entire evidence on record and the facts and
circumstances, in the instant case, it is found that the prosecution has
been able to prove the charge U/s 302 IPC against accused Geju Praja
beyond reasonable doubt. Hence. Accused Geju Praja is found guilty for
committing murder of Monsai Praja. He is convicted for his
offence accordingly.
This is not a case where the provisions of Probation of
Offenders Act is applicable. The accused Geju Praja is heard on the
point of sentence. The hearing of the accused U/s. 235(2) Cr. P. C. on
the point of sentence is recorded in a separate sheet in the form of
questions and answers and shall form part of the record. He is the
earning member of his family. In his absence his family will be in great
hardship.
Learned counsel for the accused submits that the accused
person is a daily labour and he is only bread earner in his family.
Considering his family condition, leniency may be shown to accused
while passing sentence.
25
I have perused the provision of section U/S 302 IPC where
is minimum punishment is imprisonment for life and maximum
punishment is hanging and also fine. In the instant case . the convict
killed him without having reasonable ground. The convict has taken
revenge upon his enemy’s thereby caused a cool blooded murder.
Though the accused inflicted as much as 8 injuries to the deceased
While balancing crime and the criminal this case does not fall within the
rarest of rare category. Hence, this court is of the opinion that
imprisonment for life will serve the purpose.
Considering all, convict Geju Praja is sentenced to undergo
Rigorous Imprisonment for life and a fine of Rs.3,000/- (Rupees
three thousand) only in default, further Simple Imprisonment for 6
(six) months for committing the offence U/s 302 IPC.
The fine amount, if realized be deposited to State exchequer.
The accused be sent to jail to serve the sentence passed against him.
Furnish a copy of the judgment free of cost to the convicted person.
Seized articles be destroyed in due course.
Addl Sessions Judge,
Dibrugarh
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