THE GAUHATI HIGH COURT

Transcription

1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) PRINCIPAL SEAT AT GUWAHATI (CRIMINAL APPELLATE JURISDICTION) Crl. Appeal (J) No.119 of 2012 With Crl. Appeal No.276 of Crl. Appeal (J) No.119 of 2012 Sri Binud Bikash Saikia Appellant -Versus- The State of Assam Respondent. 2. Crl. Appeal No.276 of 2012 Smt. Minati Borah Gogoi Appellant -Versus- The State of Assam Respondent. BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE N. CHAUDHURY For the appellants : For the respondent : Mr. R.M.Choudhury, Amicus Curiae in Crl.A(J) 119/2012. Mr. K. Bhattacharjee, Advocate in Crl.A. 276/2012. Ms. S. Jahan, Addl. Public Prosecutor, Assam. Date of hearing : Date of Judgment : Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 1 of 30

2 JUDGMENT & ORDER (N. Chaudhury, J.) The prosecution story in this case is that one Lakhi Gogoi, son of late Ramakanta Gogoi of Amguri Chraimuria Goan, lodged an ejahar with Amguri Police Station on stating that at about 1.30 a.m. i.e. on the previous night his brother Dipak Gogoi alias Bogai was killed by some miscreants at his residence while he was sleeping. The murder was committed by sharp cutting weapons. Amguri P.S. Case No.79/2008 under Sections 302 of the Indian Penal Code was registered thereby and investigation was immediately started. The investigating officer visited the place of occurrence, prepared a sketch map, held inquest on the dead body by an Executive Magistrate and thereafter sent the dead body for post mortem examination. He seized incriminating articles from the place of occurrence and recorded statements of witnesses. In course of the investigation Mrs. Minati Borah Gogoi, the wife of the deceased, Manas Gogoi and one Binud Bikash Saikia were arrested. On the showing of Sri Binud Bikash Saikia some more articles like Khukri, clothes and gloves said to have been involved in commission of the offence were also recovered in presence of witnesses. Accordingly, all these three arrested accused persons were sent up for trial by submitting charge-sheet under Sections 302/34 IPC. 2. The learned Chief Judicial Magistrate, Sivasagar, by his order dated committed the case to Sessions and thereupon Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 2 of 30

3 Sessions Case No.70(S-S)/2009 was registered. The learned Sessions Judge framed charge under Section 302/34 IPC against all the three accused persons as follows :- That you on or about at about 1.30 a.m. (early morning of you have committed murder by causing the death of Dipak Bogai in furtherance of your common intention. The charge on being read over to the accused persons they pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined as many as 28 witnesses including the I.O. and the M.O. and exhibited 26 documents and material exhibits. Upon consideration of these materials on record and after examining the accused persons under Section 313 Cr.P.C. the learned Sessions Judge by his judgment and order dated acquitted accused Manas Gogoi from the charge but convicted accused Binud Bikash Saikia and Smt. Minati Borah Gogoi under Section 302/34 IPC and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for another six months each. This judgment and order of conviction and sentence has been called in question in the present two appeals, viz., Crl. Appeal (J)No.119/2012 and Crl. Appeal No.276/2012. Since both the appeals are based on common evidence they are heard together and are disposed of by this common judgment. Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 3 of 30

4 4. We have heard Mr. R. M. Choudhury, learned Amicus Curiae for the appellant Binud Bikash Saikia in Crl. Appeal(J) No.119/2012 and Mr. K. Bhattacharjee, learned counsel for the appellant Smt. Minati Borah Gogoi in Crl. Appeal No.276/2012. WE have perused the depositions of all the witnesses and the exhibits. 5. PW 1, Putul Baruah, is a neighbor of the deceased. According to him, he heard a commotion at around 7.00 a.m. on in the house of deceased Bogai and thereupon went there to see that Bogai was lying prostate in a pool of blood on the floor of his house. Bogai s wife accused Minati and his two daughters were in the same house the elder one was reading in Class IX and the younger one was a minor. He claimed to have known accused Minati Borah Gogoi, Manas Gogoi and Binud Bikash Saikia. He admitted in course of cross-examination that that deceased Bogai was an ULFA cadre and he used to live with his wife and children in the same house. 6. PW 2, Srimanta Jyoti Gogoi, is yet another neighbor of the deceased. According to him, on after he returned from morning walk, his mother Swarna Prabha Gogoi told him that maid servant of Bogai had informed her that Bogai had been killed on the previous night. He did not go to the place of occurrence although the house of the deceased is just on the other side of the road in front of his house. He saw accused Binud and Manas were coming to Bogai s Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 4 of 30

5 house. He also saw Manas taking accused Minati along on his motorcycle from the school. 7. PW 3, Smti. Rupa Deka, was staying at a tenanted premises just opposite the house of the deceased. According to her, on the night of occurrence Minati had called her by name and thereupon she woke up but found that their gate was locked. It was at about 2.30 a.m. She came out to the verandah but did not see Minati. She thereafter woke up two tenants of Minu Barman and they together went near the gate of deceased and found that the gate was locked from inside. They did not see Minati and so came back. 8. PW 4, Gita Paul, is one of the three ladies who had gone to the gate of deceased at night on being asked by PW 3, Rupa Deka, as they were under the impression that Minati might have sought help from Rupa for something. But this witness did not say that she was called by Minati. She said that Rupa (PW 3) awoke her up and then she alongwith Rupa and another co-tenant went in front of the house of the deceased but as they did not see anybody there and there was no scream they came back. 9. PW 5 is the informant Lakhi Gogoi. He is the brother of the deceased. According to him, at around 8.00 a.m. of one Suren Gogoi informed him about murder of his brother Dipak. He resides about 2 kilometer away from the house of Dipak and Dipak used reside in the town alongwith his wife and two daughters. Accused Minati is Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 5 of 30

6 wife of the deceased and he stated that Minati did not give him any information about the incident till 8.a.m. Thus, it was clear that Lakhi Gogoi came to know about the incident of murder of his brother from one Suren Gogoi and not from the accused Minati Gogoi who was also living with the deceased being his wife. However, he thereafter came to the place of occurrence and lodged the ejahar. Police came and held inquest over the dead body. Ext-1 is the F.I.R. and Ext-2 is the inquest report. He is a witness to the inquest. 10. PW 6, Tapan Baruah, is yet another inquest witness. He went to the place of occurrence alongwith other villagers in the morning when he came to know that Dipak was killed. Similarly, Ritupan Gogoi (PW 7) went to the place of occurrence next morning at around 8.00 a.m. when police had come and inquest was being held. He was also a witness to the inquest. 11. PW 8, Smti. Swarna Gogoi, is a neighbour of the deceased. She stays on just opposite house. On when she returned from morning walk she found some neighbouring tenants were standing near the house of the deceased and they said that something had happened in the house on the previous night and they were called. At that time she heard one Makani, the maid servant of the deceased, was telling the people there from inside the gate that someone had killed Bogai. She then went to the house of Bogai and saw from a distance that Bogai was lying beside the bed and there was blood all Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 6 of 30

7 around. Her house is at a distance of about 20 meters from the place of occurrence but she did not hear any commotion at night. However, after Makani raised hue and cry in the morning the people had assembled along with those who were mentioned earlier. She said that she went out for morning walk at around 4.30 a.m. and heard the hue and cry of Makani at 7.00 a.m. According to her, the maid servant Makani works at other places as well. She met her near Bogai s house along with the rest of the people while she was returning from morning walk. 12. PW 9, Bipul Khataniar, is a mechanic by occupation. According to him, he knew both deceased Bogai as well as Manas Gogoi. On the day of occurrence he had seen Manas Gogoi coming to the shop of the deceased at noon and then he went out at around 3 O clock. In the evening Bogai closed his shop and left. Deceased Bogai had a shop of electrical goods. Other than accused Manas other customers also came to Bogai s shop that day. Normally, Bogai used to close his shop by 7.00 p.m. He lived at a distance from the shop and even on the day of occurrence he had closed the shop and left for house at around 7.00 a.m. 13. PW 10, Tapas Pratim Saikia, deposed that he knew accused Minati, accused Binud and accused Manas. He also knew deceased Bogai alias Dipak. He had heard that someone had killed Bogai and police seized one LG mobile handset from the hand of Manas Gogoi. Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 7 of 30

8 He was a witness of the seizure list Ext-2 and Material Ext-1 is the said mobile set. On police seized one mobile set from Manas. 14. PW 11, Prasanta Gogoi, is younger brother of accused Manas Gogoi. He deposed that both Binud and Minati are known to him. He also knew Dipak Gogoi. He was killed on by someone and police seized one mobile handset with SIM card from his elder brother Manas Gogoi at the police station. Ext-2 is the seizure list wherein Ext- 2(2) is his signature. Material Ext-1 is the said mobile set. 15. PW 12, Sonaram Saikia, said that Bogai was killed about a year back. Police seized two mobile sets, one dao, one water bottle and 1 / 2 numbers of glasses from Bogai s house. One handset of Nokia brand and the brand of the other mobile set he did not know. Ext-3 and Ext-4 are the seizure lists wherein his signatures are there. Material Exts-2 and 3 are the two mobile handsets and Material Ext-4 is the kopi dao. Material Ext-5 is the empty water bottle and Material Ext-6 is the empty glass. 16. PW 13, Ramesh Gogoi, is a constable of Amguri Police Station. He said that on he was on duty at the Police Station when the I.O. Nandeswar Dutta sent him and constable Kushal Baruah to Civil Hospital for getting the autopsy of dead body of Dipak Gogoi. Accordingly, they took the dead body to the Sivasagar Civil Hospital and after the post mortem was over the doctor handed over a pair of half pants of the deceased to him which he handed over to the Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 8 of 30

9 investigating officer. The I.O. seized the pant vide Ext-5 wherein Ext-5(1) is his signature and M. Ext-6 is the said half pant. 17. PW 14, Hansha Ram Dutta, is a shop keeper. He has a shop near the shop of Manas Gogoi. He knew deceased Dipak Gogoi as well. He came to know that Dipak has been killed by someone. I.O. came to the shop of Manas with other police men and took Manas. Police called him to the house of Manas. Police also called Dilip Bora of the neighbourhood and thereafter a search was made in the house of Manas whereupon a pair of half pants and a sporting were seized. Ext-6 is the seizure list wherein his signature is Ext-6(1). Material Ext-7 is the seized half pant and Material Ext-8 is the T-shirt. 18. PW 15, Dilip Bora, deposed that he knew Manas Gogoi being his neighbour. He also knew Dipak Gogoi. He heard that a year back Dipak was killed by someone. A few days thereafter he visited house of Manas having heard that police had come to his house for search and police disclosed to him that a pair of half pants and T-shirt was recovered. They obtained his signature on Ext-6 seizure list and Ext-6(2) is his signature. 19. PW 16, Atul Saikia, is an important witness. He is a retired employee and deposed that he lives at the adjacent house of accused Binud Bikash Saikia. He, however, did not know the other two accused persons. After about 1/ 2 days of occurrence he along with Naren Kalita and Sarbananda Saikia were sitting in the school nearby when police Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 9 of 30

10 party came to the Govt. I.B. situated near the school. They brought accused Binud Saikia along. The officer-in-charge of the Police Station came and called them to the I.B. He and Naren Kalita went there and police by showing a dao informed him that it was recovered from the water tank of the I.B. They obtained his signature on the seizure list which is Ext-7. He was declared hostile thereafter and cross-examined by the prosecution. 20. Contrary to the deposition of PW 16 (Atul Saikia), PW 17, Naren Kalita, stated that 3 /4 days after the day of occurrence he along with PW 16 and others were sitting at Pengbai M.E. School. It is situated near the I.B. Officer-in-charge of Amguri Police Station came there and called them to the I.B. After they went there accused Binud Saikia produced a dao from below the water tank and then police seized the same in their presence. Ext-7 is the seizure list wherein Ext-7(2) is his signature. Material Ext-9 is the dao which was seized on being shown by Binud Saikia. Father of the accused Binud is a chowkidar of the I.B. In course of cross-examination he informed the Court that the whole family of Binud stays in the I.B. which is situated at the back side of the school. He is a retired teacher. 21. Sarbananda Saikia, PW 18, is the third witness of Ext-7 seizure list. According to him, on his arrival he found that Binud was holding a dao with his hand and the same was seized by police. Ext-7(3) is his Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 10 of 30

11 signature. This witness was also declared hostile and thereafter prosecution cross-examined him. 22. PW 19, Kushal Baruah, stated that he is a constable of Amguri Police Station and he was a witness to seizure of the half pants of the deceased after the same was delivered following post mortem examination. Ext-5 is the seizure list wherein Ext-5(2) is his signature. 23. PW 20, Bhupen Gorh, is yet another constable of Amguri Police Station. He proved seizure of Samsung mobile phone with SIM card from accused Binud Bikash. Ext-8 is the seizure list wherein Ext-8(1) is his signature and Material Ext-10 is the said Samsung mobile phone. 24. PW 21, Ranjit Borah, is also a police man of Amguri Police Station. He proved seizure of a mobile phone from Binud Bikash in connection with murder of Bogai. Ext-8 is the seizure list wherein Ext8(2) is his signature. Material Ext-10 is the mobile handset. 25. PW 22, Nomal Konwar, is a cultivator. He lives near Amguri I.B. and knew deceased Dipak Gogoi. He was also taken to the I.B. by police. He witnessed production of some clothes by accused to the police from the ceiling of the I.B. Police seized the clothes. There was a shirt and a pair of gloves. Ext-9 is the seizure list wherein Ext-9(1) is his signature. Material Ext-11 are the seized clothes. Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 11 of 30

12 26. PW 23, Bijoy Konwar, is a shopkeeper. He knew deceased Bogai as well as accused Binud Bikash. He has a shop near Amguri I.B. He witnessed that Binud was taken to I.B. by police in connection killing of Bogai. He went there and at that time Bogai took out some clothes hidden above ventilator of the I.B. and produced to police. Police seized them. He found that it includes a pair of gloves, one shirt and one pair of half pants. Ext-9 is the seizure list wherein Ext-9(2) is his signature. Material Ext-11 is the seized clothes. 27. PW 24, Dr. Ranjit Kr. Hazarika, is a Senior Medical and Health Officer of Sivasagar Civil Hospital. He held post mortem over the dead body of Dipak Gogoi at a.m. on being identified by his brother Lakhi Gogoi and Ritupan Gogoi. He found the following injuries on his body :- Wounds :- 1. Incised wound ½ x ¼ about one inch below the left nipple. 2. Incised wound ½ x ¼ about 2 below the right nipple. 3. Incised wound ½ x ¼ in the left taxilla between 6 th and 7 th ribs. 4. Fifteen nos. of incised wound ½ x ¼ present in the back mostly on the left side. 5. Incised wound ¼ x ½ present in the neck on the left near the occipital region. 6. Incised wound 2 x ¼ x ½ on the right forearm. Cranium and Spinal Zonal :- 1. Fracture of the occipital bone on the left side. Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 12 of 30

13 2. Membrane lacerated on the left side with slots present on the sub-dural space. Thorax :- Multiple stab wounds present in the chest anteriorly and posteriorly. Both pleura shows multiple cut marks. Both lungs shows multiple wounds. Pericardium shows incised wounds on the left side. Heart shows multiple incised wounds in both the chambers. Abdomen :- Small intestine contains partial digest foods and large intestine contains fecal matters. Other organs healthy. Opinion :- In my opinion, the cause of death of the deceased was due to shock and haemorrhage as a result of injuries sustained which are ante mortem in nature. Ext-10 is the post mortem report. The doctor opined that death was due to shock and haemorrhage as a result of the injuries sustained by the deceased which are ante mortem in nature. According to him, injuries were caused by pointed and sharp weapons and may be caused by Khukri Material Ext-9. This witness was not cross-examined by the accused Binud and Minati. However, accused Manas got him crossexamined but not on the injuries. 28. PW 25, Sri Pankaj Bhattacharjee, is a businessman. He deposed that Binud Bikash Saikia is the son of the chowkidar of Amguri I.B. Upon getting sward and clothes from Binud the I.O. showed them to him and others and thereupon Ext-9 seizure list was prepared. Ext-9(2) is his Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 13 of 30

14 signature. In course of cross-examination he disclosed that he saw the place wherefrom Binud had placed the seized articles. Lakhi Gogoi and 30 other people were present at that time. 29. PW 26 is the Sub-Divisional Judicial Magistrate of Dibrugarh. He was examined to prove the confessional statement of accused Binud. He deposed from records and stated that accused was arrested on and thereafter produced to his Court. He ordered for remanding him to police custody for 120 hours and on A.S.I. Bipul Dutta produced the accused again. On the accused was brought from Jail Hajot and produced before him. He said that the accused was not under influence of police for giving the confessional statement and he made it voluntarily. Ext-13 is the confessional statement and the same is quoted below for ready reference :- Q. What do you want to confess? Ans :- I had acquainted with the family of deceased Bogai since 2 ½ years back. I used to go his (deceased) house for teaching Bihu dance to his elder daughter. Since then, I am familiar with his family. The school of Dipak Gogoi s wife Minati Bora is near P.W.D. I.B. where we reside. While going to the school the little daughter of Minati Bora aged about 4 ½ years often visits our I.B. She always comes. We keep her affectionately in the quarter of I.B. where we reside. My mother is a teacher. Sometimes, I take along Minati Bora s little daughter while dropping my mother at the school on motor cycle. In last July, while I was returning after dropping my mother at school, I saw Dipak Gogoi bolding a woman Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 14 of 30

15 in his arms in a house near Amguri College. At that time, Dipak s little daughter was with me. She cried out. Then, Dipak turned his back and saw us. I left the place. A few days after that Dipak met me at night. He made a threat to me and asked me what I had seen. I replied that I had seen nothing. Then, Dipak threatened that he would kill me. A few days after that he met me at Cinema Hall Road and threatened me by dealing a kick at the bicycle and uttered filthy language against my mother. Since then I had been furious at him. I decided to kill him. Even thereafter, he continued to make threats to kill me. The school reopened after the summer vacation. Then, I came to know from Minati Bora s little daughter (Smti Ritu Borah) that Dipak Gogoi had started causing disturbance in their house. I suspected that since I had seen him in such a situation, hence he had started causing disturbances. I came to know that he had kept his family members inside a coop at night and he himself had remained inside the house. So, I asked Minati about the torture. Then, MInati Bora told me that she could not stay there anymore and Dipak Gogoi would kill her. Then, I told Minati Bora about my seeing Depak holding a woman in his arms. I further told her that I would kill Dipak Gogoi since he had uttered filthy language against my mother. Then, Minati Bora asked me, Will you be able to kill (kill). I told her that would be able to kill him. Then, Minati told me that she would assist me. Then, I told Minati Bora that she would have to open the backdoor of the house only. Then, Minati Bora told me that if the light of Dipak Gogoi s room was on then Dipak Gogoi would be awake and if the light was off then he would be sleeping. We talked these words two days prior to the Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 15 of 30

16 occurrence. On the day of occurrence, I came out of my house at about p.m. I took a khukri and a pair of leather gloves along with me. I went to the back of Dipak s house through the village. I saw the light of Dipak Gogoi s room off. The back door of his house was open. I saw a pair of shoes on the bamboo house. I put on the same. I entered inside house of Dipak. I saw Minati Gogoi in her room and forbade her not to come near me. I entered the room of Dipak Gogoi s room and saw him sleeping in the light of street light. I looked at the neck of Dipak Gogoi in the glow of my mobile phone. I kept the mobile phone in the pocket and dealt a blow on the neck of Dipak Gogoi with the khukuri. Thereafter, I dealt another blow. Then, Depak fell on the pucca floor from his bed. Then, I dealt another blow. Thereafter, I pierced into his back. Then, Minati Bora pulled me out. Then, I dealt another blow. Minati Bora pulled me out through her room. Thereafter, putting Minati inside the room, I closed the rooms from outside. Their two daughters were sleeping. Coming out from there, I left the place. At the time of this occurrence, I did not see Manas Gogoi there. I did not see if he was inside that house. I took assistance from Minati for killing Dipak Gogoi. Had I not kill Dipak Gogoi, then he (Dipak Gogoi) would have killed me. On that day, MInati Gogoi sent a message to me from Dipak Gogoi s mobile phone to know whether I had arrived at night or not. This much I have to say. PW 26 was not cross-examined by accused Minati. He was crossexamined only by accused Manas. In course of cross-examination he stated that being Sunday he did not record the statement. Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 16 of 30

17 Since the learned counsel for accused Minati and Binud did not crossexamine this witness, no question was put to this witness as to whether statutory warnings were given to the accused before recording the statement. The recital of Ext-13 shows that accused Binud did not make any allegation of threat by police to him. He disclosed that he was not beaten up by police and he gave the confession voluntarily even before police. The recital of Ext-13 also shows that the accused knew that PW 26 was not a police officer but a Magistrate. Question was put to him whether influence, promise or threat was given to him and he answered in the negative. He said that he knew that he was not bound to make confession and that the confession may be used against him. He said that he committed the murder, he wanted to confess and declared to state the truth. Thus, it appears that statutory warning was given to the accused before recording his statement. 30. Ext-14 is order dated which shows that accused was produced that day before the learned Magistrate from Jail hajot after reflection. It also discloses that the learned Magistrate had explained the accused that he was not bound to make confession and if he did so the same would be used as evidence against him. He was also assured that he would not be sent back to police custody again but even thereafter he wanted to make confession. Ext-14, therefore, is a relevant document for the purpose of deciding the validity of confession made vide Ext-13. Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 17 of 30

18 31. PW 27, Mrs. Basu Manalisha Choudhury, is a Junior Scientific Officer of Forensic Science Laboratory at Guwahati. She deposed that a parcel was received by the F.S.L. in connection with Amguri P.S. Case No.79/2008 under Section 302 I.P.C. It was covered with cartoon and was sealed with impressions of the corresponding seal impressions. She described the exhibits in her deposition. According to her, one black and red coloured half pant of the deceased suspected to contain stain of blood was numbered as SERO 2405(A). One wooden handle khukri having a length of 41 cm. and suspected to contain stain of blood stain was numbered as SERO 2405(B). One blue coloured jeans half pant of the accused no.1 suspected to contain blood stain was numbered as SERO 2405(C) and one sky blue coloured full sleeve open shirt of accused No.1 suspected to contain blood stain was numbered as SERO 2405(D). One pair of leather hand gloves suspected to contain stains of blood was numbered as SERO 2405(E). One floral printed cotton cloth suspected to contain blood stain was numbered as SERO 2405(F). One blue coloured jeans half pant of accused No.2 suspected to contain blood stain was numbered as SERO 2405(G). One dark coloured sporting of accused No.2 suspected to contain blood stain was numbered as SERO 2405(H). Upon analysis she found that SERO 2405(A), SERO 2405(B), SERO 2405(F) and SERO 2405(G) gave positive tests for human blood group B and SERO 2405(E) gave positive tests for human blood only but its group could not be ascertained due to Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 18 of 30

19 insufficient test materials. This witness also found that SERO 2405(B), SERO 2405(C) and SERO 2405(H) gave negative tests for presence of blood. Ext-15 is the report and Ext-16 is the forwarding report by the Director of F.S.L. Cross-examination of this witness could not reveal any major discrepancy. 32. PW 28, Nandeswar Dutta, is the investigating officer in the case. He stated that on PW 1, Putul Baruah, came to Amguri Police Station and verbally informed him about the murder of Dipak Gogoi. Accordingly, G.D. Entry No.105 dated was registered and investigation was initiated. Ext-17 is the certified copy of the G.D. Entry. PW 1 was questioned and his statement was recorded and then he proceeded to the place of occurrence at around 8.15 a.m. At the place of occurrence he found the dead body smeared with blood. Accused Minati Gogoi told him that dead body was of her husband Dipak Gogoi and that some unidentified miscreants had killed him and left there at night. He intimated the S.P., Addl. S.P. and D.S.P.(HQ) about the incident and then as per instruction of the S.P. he requisitioned the service of Pradip Kumar Das, the Executive Magistratecum-Circle Officer, Amguri Revenue Circle, to hold the inquest. Inquest was accordingly held. He recorded statements of Minati Gogoi, her daughter Shristi Sabnam Gogoi, Gita Paul, Sukumar Teli, Rupa Deka, Simanta Jyoti Gogoi and Surumai Gogoi at the place of occurrence. He drew a sketch map which is Ext-18 and then dog squad came at 1.45 Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 19 of 30

20 p.m. The dog squad could not give any hint. Thereafter, Executive Magistrate prepared the inquest report. A Nokia mobile handset with SIM card of contact number and a kopi dao were seized from the possession of Minati Bora at the place of occurrence. Ext-3 is the seizure list and Material Ext-2 is the seized Nokia handset. Material Ext-4 is the kopi dao used in the incident. He also seized a Spice mobile handset, one water-bottle of one liter capacity and a glass tumbler from the room of the deceased vide Ext-4. Material Ext-3 is the mobile handset and Material Ext-5 is the water bottle and glass. The dead body was thereafter sent for post mortem examination. He also examined Manas Gogoi and Bipul Khataniar in this case. He seized one LG mobile handset with SIM card of contact no from Manas Gogoi. After enquiry he came to know that mobile SIM card having contact no was registered in the name of deceased Bogai and SIM card having contact nos and were registered in name of Manas Gogoi. The investigating officer spotted stains of blood on the wall in between the room of the deceased and that of Minati. Opening the door of the wall when he noticed closely he found stains of blood on the frame of the door towards the direction where the dead body was lying but Minati said that in the night of occurrence the miscreant had left bolting the door from the side of the room where the dead body was lying and that is why she could not come to that room where the dead body was there. Although stains of blood of the deceased shot Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 20 of 30

21 up in the room where the body was lying, these were found oblique near the door and then he assumed that the door was open when the offence was committed and that is why he suspected that Minati Borah involved in the murder of her husband. He locked the room where the body was found and placed it under the guard of police. Minati Borah was thereafter interrogated suspecting her to be involved with the incident and her daughter Sristi was also interrogated. According to this witness, Manas Gogoi confessed his involvement before him and said that the half pants and T-shirt worn by him at the time of the incident are intact in his house. Although he intended to exhibit the statement made by Manas made before police as Ext-9 but defence raised objections. This is because statement before police has no evidentiary value. Be that as it may, he again interrogated Minati on when she disclosed that she had given the khukri used in the incident to Binud Bikash Saikia, son of chowkidar of I.B. and Binud knew where he had kept the khukri. Accordingly, Binud was arrested on that day and on being interrogated he confessed about his involvement. Thereafter he took Binud to Amguri I.B. and there Binud took out the khukri through the gap below the door of the store house under the water tank in presence of witnesses and he found stains of blood on it. He seized the khukri as Material Ext-9. A Samsung mobile handset with SIM Card of contact no was seized which is Material Ext-10. Accordingly, Binud confessed of his involvement in the case and also led to the Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 21 of 30

22 discovery of khukri, a pair of blue coloured three quarter pants (blood stained), one light green coloured full sleeve shirt (blood stained) and a pair of black gloves made of leather in presence of witnesses. All the accused persons were accordingly forwarded to the Court and prayer was made for recording their confessional statement. He got the call details of mobile handset bearing contact No from the AIRTEL. This mobile handset was seized from the possession of accused Minati and it was registered in the name of deceased, husband of Minati. He sent all the materials for forensic examination and after having obtained the report from the F.S.L. he submitted the charge sheet. This witness was cross-examined at great length. 33. The learned Sessions Judge has gone through the depositions of all the witnesses and considered the submissions made on behalf of all the three accused persons. He noticed that accused Binud Bikash Saikia made confessional statement before the Sub-Divisional Judicial Magistrate, Sivasagar. According to the learned Sessions Judge, such a confession was voluntary and the content thereof was also true. Accused Binud Bikash Saikia had intimacy with the family of the deceased. The younger daughter of the deceased used to visit house of Binud Bikash. Accused Minati was a teacher of the school situated near the PWD I.B. where Binud Bikash resides. The deceased was formerly an ULFA militant. The learned Sessions Judge noted that accused Binud Bikash made voluntary confession before the S.D.J.M. Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 22 of 30

23 Having gone through the Exts-14 and 13 this Court feels inclined to accept this finding of the learned Sessions Judge that the Judicial Magistrate duly and properly recorded the confessional statement. Accused Binud Bikash Saikia in course of his statement under Section 313 Cr.P.C. retracted his confession by saying that he was mentally imbalanced at that time. But he did not say that the confession he made was neither correct nor voluntary. He did not say that police threatened him and this is why he had to give the confessional statement before PW 26. His only case was that he was temporarily imbalanced and because of mental disturbance he gave the statement. Such type of objection to the confessional statement Ext-13 cannot lead to any conclusion that the confession was not recorded by giving proper and adequate warning to the accused. So the finding of the learned Sessions Judge in regard to Ext-13 has to be upheld and it is accordingly upheld. 34. A conviction can be made on confessional statement if it is found to be true and voluntary. There is no rule of law that a confessional statement has to be materially corroborated. However, it is the rule of prudence that a conviction should not only be based on confession but there should be other sufficient materials in due corroboration thereof. After all, the accused cannot be convicted merely on suspicion whatever strong the suspicion may be and his guilt has to be proved beyond reasonable doubt. This is why it is necessary to examine other Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 23 of 30

24 witnesses to see as to whether the confession made by accused Binud Bikash Saikia vide Ext-13 is true. It is, therefore, required to analyse the other evidence available on record. 35. Obviously, there is no eye witness in the case and the prosecution relied on circumstantial evidence to prove the guilt. It is, therefore, required that the circumstances are to be duly proved and they should be of such a nature that they can only point towards the guilt of the accused without leaving any scope for any doubt whatsoever. Keeping this in mind it is to be seen as to whether in the case in hand prosecution has succeeded to prove its case. Accused Binud Bikas Saikia by making the confessional statement stated that the deceased had threatened him on a number of dates and then he came to know from the minor daughter of the deceased that the deceased was perpetrating tortures on accused Minati, his wife. He used to go to her house and thus he told her oneday that since the deceased had abused him by using filthy language about his mother he would kill the deceased. At that Minati Borah readily agreed to cooperate with him and told him that whenever light in the bed room of deceased would be off it would indicate that he has fallen asleep. She would keep the back door open so that accused Binud could come in. As found from the evidence of other witnesses, namely, PWs, 2, 3 and 4, it was clear that the house of the deceased had walls all around and one iron gate was there at the front side. Front side remained locked but back door was open. The Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 24 of 30

25 accused Minati is none other than the wife of the deceased. She was residing in the same campus. Even if it is accepted that she was staying in a different room adjacent to the room of the deceased, even then burden comes on her to explain as to under what circumstances the backdoor of the house remained open at the dead of night. The accused failed to give any explanation to that effect. She wanted to say that the miscreant bolted her room from outside and so she could not come out. But as we have noticed from the deposition of PW 28 that blood stain was there on the frame of the door and in the wall of the room and PW 28 was of the view that unless and until the door was open at the time of commission of offence blood stain could not have gone to the room of Minati. She did not give any explanation to this. Moreover, it came out from the confession of accused Binud that even after he had killed Dipak and went home, Minati kept on giving him SMS from the phone number of the deceased and asking him as to whether he could reach home safe. To verify as to whether there was any such communication between accused Minati and accused Binud, PW 28 as the investigating officer called for call records of mobile phone bearing No for the period from 15 th August to 17 th September. Ext-23 is this record. Occurrence took place at around 1.30 a.m. of It appears from Ext-23 that from a.m. till 2.05 a.m. of there were as many as 13 outgoing SMS from the mobile of the deceased to the mobile of Binud Bikash Saikia which has contact number Mobile set of deceased received as Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 25 of 30

26 many as 12 incoming SMS from the mobile set of Binud Bikash during this period. The question necessarily arises as to why there was exchange of SMS between Minati and Binud Saikia during odd hours at dead of night at the very time when the ghastly murder of her husband had taken place. The call data proved vide Ext-23 lends credence to Ext-13 confessional statement wherein Binud Bikas Saikia confessed that after he had committed murder of Dipak Gogoi, Minati, wife of the deceased, went on sending SMS to him asking as to whether he could reach his residence safe. This shows that during and immediately after the murder had taken place the mobile handset of the deceased was in continuous communication with that of Binud Bikash Saikia. After 1.30 a.m. of deceased himself could not communicate as he had already died and the I.O. (PW 28) had seized this mobile set from accused Minati, the wife of the deceased and this shows that these SMS were sent by none other than Minati to the murderer of her husband. It also showed her anxiety for peaceful completion of their mission. Of course it is a relevant corroborative material of the confession of accused Binud Saikia made vide Ext-13. Ext-23 and Ext-13 if ready together establishes a collusion between the accused Minati and accused Binud both of whom are appellants before us challenging their respective conviction. 36. Apart from the two circumstances, namely, keeping the backdoor open and sending SMS to Binud Saikia at odd hours on the night of occurrence, there is yet another incriminating circumstances Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 26 of 30

27 against the accused Minati. As has been pointed out by PWs 1, 2, 3 and 4 that at 7 O clock there was hue and cries everywhere about death of Dipak Gogoi and their maid servant Makani was shouting from inside the campus and talking to the neighbouring people. So accused Minati Gogoi was very much aware at least at 7 O clock that her husband had already been killed. But what was her reaction thereafter? Under normal circumstances it was expected that she would have lodged an ejahar before police or she would have informed it to the neighbours or to the brothers of the deceased. She did not do so. PW 5 received information as to the murder of his brother from Suren Gogoi and then he came and lodged the ejahar at about 8.00 a.m. Minati did not even talk to the neighbours, namely, PWs 1 to 4. None of the witnesses said about her during this period. It was Makani who was telling everybody about the murder of Minati s husband. These acts and omissions on the part of Minati speak much against her. She has not made any allegation against her husband in her statement recorded under Section 313 Cr.P.C. Nowhere has she stated that she used to live in a separate room. She has not alleged of any torture against her by the deceased. Under such circumstances when husband and wife are staying under the same roof and the husband is killed but the wife not only maintains the cool but does not even inform the police and does not give any explanation as to how and who opened the door of the house allowing the miscreant to come in, suspicion is bound to arise against her. The overt act of sending the SMS to accused Binud Saikia at Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 27 of 30

28 late hours of night and that too after commission of murder of her husband if considered together with the judicial confession voluntarily made by accused Binud Bikash Saikia the only inference that can be drawn is that Minati cooperated with Binud Bikash Saikia in committing the murder of Dipak Gogoi. Because of the material corroborations of above three circumstances, namely, keeping the back door of the house open, communication with Binud Bikash Saikia during late hours of night after commission of murder and blood stains in the wall of the room where Minati reside irresistively established that Minati helped Binud Bikash Saikia in killing Dipak Gogoi. 37. Coming to the corroboration of confession made by Binud Bikash Saikia it is to be noticed that in course of his confession he stated about the weapon used and the blood stains. The witness Naren Kalita (PW 17) duly proved that the Khukri and a T-shirt and pants were recovered from the I.B. on being led by accused Binud Bikash Saikia. This khukri was found from the water tank and so it could not be expected that there was any blood stain in it after 4/5 days of the occurrence. But the F.S.L. report proved by PW 27 puts weight behind the prosecution story. The serological report has been exhibited as Ext-15. It shows that SERO 2405(A), SERO 2405(D), SERO 2405(F) and SERO 2405(G) gave positive tests for human blood group B. Blood group of the human blood found in the stain of SERO 2405(E) could not be tested because of insufficiency of test material. SERO 2405(A) relates to black and red coloured half Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 28 of 30

29 pant of the deceased. Stain of blood pertaining to group B was found in it. Sky blue coloured full sleeve shirt belonged to accused No.1, Binud Bikash Saikia, and this shirt was sent to F.S.L. vide SERO 2405(D). Incidentally, the stain of blood found in this shirt of accused No.1 (Binud Bikash Saikia) also pertains to group B which is the blood group of the deceased. There was a handkerchief in the pocket of the half pant seized from accused No.1 (BInud Bikash Saikia) and it is a floral printed cloth. It was numbered as SERO 2405(F) and it also contained stains of blood belonging to group B. Thus accused No.1 by producing his full sleeve shirt, handkerchief and the pant established that his garments contained the blood of the same group as that of the deceased. This is yet another corroborative material for the confession made by accused No.1 Binud Bikash Saikia vide Ext-13. It gives credence to the confessional statement voluntarily made by him. The learned Sessions Judge having considered all these materials arrived at the definite view that confession made vide Ext-13 was voluntarily made by accused Binud Bikash Saikia and it was also true. The F.S.L. report showing blood stain in the dresses of accused No.1 of the B group which is the blood group of the deceased puts the last nail in the coffin of the defence. 38. From the post mortem report exhibited by PW 24, Dr. Ranjit Kumar Hazarika, it has become clear that there were multiple injuries on the person of the deceased. All these injuries were made by sharp and pointed weapon. The deceased was sleeping and at that time the multiple injuries were inflicted on him to ensure that he dies Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 29 of 30

30 instantaneously. The doctor is of the opinion that death was due to shock and haemorrhage because of injuries inflicted which are ante mortem in nature. 39. The call record data, the serological report, the post mortem report and the confession taken together establishes beyond reasonable doubt that accused Binud Bikash Saikia committed murder of Dipak Gogoi in the manner he confessed in Ext-13 and in his mission accused Minati Borah Gogoi had actively participated. They acted with common intention of committing murder of Dipak Gogoi for reasons best known to them. It is unfortunate that the wife connived with a murderer to put an end to the life of her husband, apparently, for no fault of the deceased. The guilt of the accused persons has been proved beyond reasonable doubt. Since the accused Manas was acquitted by the learned Sessions Judge, there was no occasion for us to consider the role played by him, if any. 40. Accordingly, both the appeals preferred before us stand dismissed. Conviction and sentence awarded by the learned Sessions Judge stand upheld. Send down the lower Court records. JUDGE CHIEF JUSTICE T U Choudhury Crl.A.(J) No.119/ 2012 & Crl.A. 276 /2012 Page 30 of 30