Arjun Hasda Vs the State of Assam

Heard Mr. R. Sharma, learned Amicus Curiae, appearing for the appellant. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam, representing the State.

¶20

This appeal has been filed against the judgment dated 25/11/2021 passed by the learned Sessions Judge, Baksa, Mushalpur, in Sessions Case No. 20/2019, by which the appellant has been convicted under section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2000/- in default, further rigorous imprisonment for 2 (two) months vide sentence order dated 26/11/2021.

¶21

The prosecution case in brief, is that an FIR dated 12/07/2018 had been submitted by PW-6, who is the brother of the deceased before the In-charge, Kumarikata Police Out Post, stating that his deceased brother was killed at around 1230 p.m. while returning home, by the appellant on 12/07/2018. The FIR also stated that the appellant had been threatening to kill the deceased for the last couple of days. Pursuant to the FIR dated 12/07/2018, the Kumarikata Police Out Post forwarded the FIR to the Officer-in-Charge, Tamulpur Police Station, wherein, Tamulpur PS case No. 258/2018 under section 302 IPC was registered.

¶22

After investigation of the case by the Investigating Officer (IO) and after recording the confessional statement of the appellant under section 164 Cr.P.C., the IO had submitted the charge sheet, on finding a prima-facie case under section 302 IPC against the appellant for murdering the deceased. The learned trial Court thereafter examined 10(ten) prosecution witnesses and 1(one) Court Witness. The examination of the appellant was done under section 313 Cr.P.C. wherein, he denied the evidence that had been adduced against him, pertaining to the use of a bamboo stick/pole allegedly belonging to the PW-4, for killing the deceased.

¶23

The learned trial Court thereafter came to a finding that as the appellant made the confessional statement voluntarily under section 164 Cr.P.C., without any

¶24

Page No.# 3/14

¶25

threat, promise, pleasure and influence by the Police and after being given reflection time, besides the bamboo stick used by the appellant having been found near the dead body of the deceased, it was proved beyond doubt that the deceased had died due to the appellant’s assault on the deceased with the bamboo. The learned trial Court also held that due to the medical evidence adduced by PW-6 and the postmortem report (Exbt.3), it was proved that the appellant had intentionally caused the said injury on the deceased, with the intention and knowledge that such injury was sufficient for causing the death of the victim. Accordingly, the appellant was convicted under section 302 IPC and sentenced accordingly.

¶26

The learned Amicus Curiae submits that the only ground for the learned Trial Court to convict the appellant is on the basis of the 164 Cr.P.C. statement given by the appellant, which he had denied making during his examination under section 313 Cr.P.C. He submits that the appellant stated that he had not given any confessional statement when asked by the learned Trial Court that the Court WitnessI, JMFC, Baksa had testified that he had recorded the confessional statement of the appellant, confirming that he had hit the deceased twice with the bamboo, which resulted in the deceased falling to the ground. Further, even if the Court were to assume that the confessional statement under section 164 Cr. P.C. was made by the appellant, the answer given by the appellant to question No. 11, during his examination under section 313 Cr.P.C., would amount to retraction of the confessional statement made under section 164 Cr.P.C. The question no. 11 and the answer given by the appellant during his examination under section 313 Cr.P.C. are as follows :-

¶27

“Q.11 CW-1 Shri Binod Prasad, JMFC, Baksa testified that on 16/07/2018 at 2 pm, he recorded your confessional statement vide Exbt. 5 after giving you warning about making such confessional statement. He also provided you the time of reflection before recording the confessional statement. What have you got to reply?

¶28

Ans : False evidence has been adduced. I have not given any confessional

¶29

Page No.# 4/14

¶30

statement.”

¶31

The learned Amicus Curiae further submits that there was no eye witness to the occurrence of the crime and the evidence relied upon by the learned trial Court was only with regard to the retracted confessional statement of the appellant and the evidence of PW-4, who stated that she had seen the appellant taking away a bamboo post from her compound, which was found lying besides the dead body of the deceased.

¶32

The learned Amicus Curiae further submits that even if it is assumed that the appellant had caused the injuries on the deceased which had led to his death, the retracted confessional statement of the appellant would go to show that there was no pre-meditation or intention on the part of the appellant to cause the death of the deceased. In-fact, in terms of the retracted confessional statement, the deceased had initially assaulted the appellant on the date on which the deceased had died.

¶33

The learned Amicus Curiae further submits that the retracted confessional statement of the appellant can be used as a basis for convicting the accused, provided the Judicial Officer, who had recorded the confessional statement, had assured the accused/appellant of protection from any sort of apprehension, torture from the Police, even if he declines to make a confessional statement. In the present case, no such assurance had been given to the appellant by the learned Magistrate. Thus, the confessional statement could not be used as a basis for convicting the appellant, as the provision of section 164 Cr.P.C. had not been complied with in essence. In this regard, he has relied upon the judgement of the Supreme Court in the case of Rabindra Kumar Pal alias Dara Singh Vs. Republic of India [(2011) 2 SCC 490] .

¶34

The learned Amicus Curiae further submits that the specification of the bamboo stick used by the appellant, which inflicted injury on the deceased, shows

¶35

Page No.# 5/14

¶36

that it measured 5.9 ft in length, having a diameter of 2 inches. Thus, the bamboo not being a thick bamboo, the assault on the deceased by the appellant with the said bamboo, even if the same was on a vital part of the body, cannot attract section 302 IPC. The same would fall in section 304 Part-II of the IPC. In the present case, there being no intention on the part of the appellant to assault the deceased, as can be seen from confessional statement, which shows that there was a chance meeting of the appellant and the deceased on the fateful day, the learned Trial Court erred in convicting the appellant under section 302 IPC.

¶37

In support of his submission that the use of a bamboo for the alleged assault cannot attract the provision of section 302 IPC, the learned Amicus Curiae has relied upon the judgement of the Supreme Court in the case of Camilo Vaz Vs. State of Goa [(2000) 9 SCC 1] .

¶38

The learned Amicus Curiae submits that the appellant has been in judicial custody since 13/07/2018 and as the present case could attract only Section 304 PartII IPC at best. Thus, the appellant could have been convicted under section 304 PartII IPC, but not under section 302 IPC.

¶39

Mr. R.R. Kaushik, learned APP, Assam, on the other hand, submits that the evidence of PW-4 and the confessional statement made by the appellant, proves that the cause of death of the deceased was due to the deadly assault made by the appellant on a vital part of the body of the deceased. He also submits that even though it can be assumed that the appellant had retracted his confessional statement made under section 164 Cr.P.C., a conviction can be made on the basis of a retracted confessional statement, though the same may need corroboration. However, the corroboration would only have to be general in nature and a corroboration does not need to be made in respect of all aspects of the case. In this regard, he has relied upon the judgment of the Supreme Court in the case of Paramananda Pegu Vs. State of Assam [2004 (7) SCC 779] . He also submits that as the retracted

¶40

Page No.# 6/14

¶41

confessional statement had been corroborated by the evidence of PW-4, the guilt of the appellant under section 302 IPC was proved in the instant case.

¶42

The learned APP further submits that the confessional statement of the appellant having clearly shown that the appellant had admitted to assaulting the deceased with a bamboo and as the said bamboo was found near the dead body of the deceased, there was no infirmity in the learned trial Court convicting the appellant under section 302 IPC. He also submits that though the appellant had ample time to retract his confession, the appellant did not do so in the earlier stages of the trial and had retracted his confession only during his examination under section 313 Cr.P.C. He also submits that the appellant had only denied making the confessional statement during his examination under Section 313 Cr.P.C, which had been proved by CW-I, the Judicial Magistrate, 1^st Class, who had recorded the confessional statement. As there was no actual retraction, there is nothing to indicate that the confession made by the appellant was not voluntary. In support of the above submission, the learned APP has relied upon the judgement of the Supreme Court in the case of Shankaria Vs. State of Rajasthan [(1978) 3 SCC 435] .

¶43

The learned APP, thus submits as that the confessional statement of the appellant has been corroborated by the PW-4, the impugned judgement of the learned Trial Court should not be interfered with.

¶44

We have heard the learned counsels for the parties and have also gone through the materials available on record.

¶45

As can be seen from the submissions made by the learned counsel for the parties and in terms of the evidence adduced by the prosecution witnesses, we find that the learned trial Court has convicted the appellant under section 302 IPC due to the confessional statement made under section 164 Cr.P.C, which is to the following effect :-

¶46

“On 9/7/2018 i.e. on Monday, a quarrel took place between Ghena and

¶47

Page No.# 7/14

¶48

me. Ghena Soren injured me and my wife by assaulting us. On 12/7/18, Thursday, while I was returning from market, I met Ghena Soren on the bank of Kala river. Ghena Soren again threatened me and assaulted me. A bamboo was lying near the place of occurrence. I dealt two blows on the back and on the back side of Ghena’s head with that piece of bamboo. He immediately fell down on the ground and I left from there. Later, I came to know that Ghena was lying dead at the place of occurrence.”

¶49

A consideration of the appellant’s confession shows that he had dealt one blow of the bamboo stick on the back of the deceased and one on the back of the head. The deceased thereafter fell down on the ground and the appellant left him there. The appellant only came to know later that the deceased had died at the place of occurrence. The above, in our view, does not indicate that the appellant had the intention of causing the death of the deceased or that he had the intention of causing such bodily injury, which was likely to cause the death of the deceased. Further, the confession does not in any way indicate that there was any pre-meditation on the part of the appellant to kill the deceased, inasmuch as, this was a chance meeting of the appellant and the deceased on the banks of the Kala river. The deceased had apparently threatened and assaulted the appellant and thereafter, the appellant had retaliated and stuck two blows on the deceased with a bamboo was lying in the place of occurrence,. There is no discrepancy with regard to the above facts, inasmuch as, the evidence of PW-4, is that the appellant had picked up a bamboo post from her compound.

¶50

When the learned trial Court found that the appellant to be guilty of the crime, solely on the basis of the confessional statement made by the appellant, which appears to be partly corroborated by the evidence of PW-4, the learned trial Court would have to accept the confessional statement as voluntary and truthful.

¶51

Page No.# 8/14

¶52

As it has been stated in the confessional statement that the deceased had first assaulted the appellant, the same implies that the action of the appellant is a retaliation. Further, in the normal course of events, it is not expected that death would occur due to two blows by a bamboo on a fully able-bodied person. However, the deceased has expired due to the retaliation by the appellant. Thus, we are of the view that the medical report enabled the doctors to ascertain as to whether only two blows have been given by the appellant to the deceased.

¶53

The evidence of PW-8, who is the doctor is to the effect that there was a 1.5 inches diameter injury with irregular margins over left aspect of forehead with blood. Injury over upper eyelid and 105 inches length lascerated injury below lower eyelid with damage eye caused by blunt object. The bruise around the injury mark was due to trauma by blunt big stick but the injury around the left eye due to sharp object. In the opinion of PW-8, the cause of death was due to hemorrhagic cardio respiratory arrest as a result of homicidal head injury.

¶54

On a perusal of the post-mortem report dated 13/07/2018, it is seen that there was injury over the left forehead, over the upper and lower eyelid of the deceased, which damaged the frontal bone on the left side of the scalp. The injuries do not appear to show that there was more than two blows given on the deceased.

¶55

The above being said, the confessional statement of the appellant can be said to indicate that the appellant knew that the injuries inflicted on the deceased could lead to his death. However, there appears to be no intention to cause death, as he left the place of occurrence after the alleged fight and only later came to know that the appellant had died.

¶56

The chance meeting of the appellant and the deceased on the banks of the river ‘Kala’ and the facts narrated in the 164 Cr.P.C. statement made by the appellant, shows that the deceased had first threatened and assaulted the appellant. Keeping in view Section 96 and Exception 2 to Section 300 IPC, there does not appear to be any

¶57

Page No.# 9/14

¶58

intention to kill the deceased. It appears that the present case is a case of culpable homicide not amounting to murder, which is covered under Exception 2 to Section 300 IPC. Further, there does not appear to be any premeditation on the part of the appellant to kill the deceased.

¶59

The examination of the appellant under section 313 Cr.P.C shows that he has denied the evidence that has been adduced against him. Though a negative inference can be drawn against the appellant due to his blanket denial, the evidence connecting the appellant to the death of the deceased is primarily his confessional statement which has been retracted.

¶60

In the case of Wazir Khan Vs. State of Uttarakhand [(2023) 8 SCC 597] , the Supreme Court has held that in a case of circumstantial evidence, where no eye witnesses is available, another principle of law which has to be kept in mind is that when incriminating circumstances are put to the accused and the accused either offers no explanation or offers an explanation, which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. Though, an inference can be raised that the ignorance shown by the appellant with regard to the death of the deceased points to the guilt of the appellant, the fact remains that the retracted confessional statement of the appellant, when read in its entirety, does not in itself prove that a case of murder has been made out, though, it can be said that the act of the appellant, was so done with the knowledge that it would likely to cause death, without any intention of causing death or to cause such bodily injury, as is likely to cause death.

¶61

In the case of Rabindra Kumar Pal alias Dara Singh (supra), the Supreme Court while setting out the various principles with regard to recording of a confessional statement under Section 164 Cr.P.C has held that who is desirous of giving a confessional statement under Section 164 Cr.P.C should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to

¶62

Page No.# 10/14

¶63

make a confessional statement

¶64

With regard to the submission of the learned Amicus Curiae that the learned Magistrate recording the confessional statement of the appellant did not assure the appellant from protection from any sort of apprehended torture from the Police in case the appellant declined to make a confessional statement, we find that in the confessional statement form used by the Magistrate under section 164 Cr.P.C., the Magistrate had assured the appellant that he would not be remanded/sent back to the Police custody even if he did not confess. This, in our view, would amount to giving assurance to the accused, that he would be protected from any sort of apprehended torture or coercion from the Police, in case the accused declined to make a confessional statement. In view of the above reasons, we are of the opinion that the requirement of giving of assurance to an accused that he would be protected from police torture or coercion in case he declines to make confessional statement under section 164 Cr.P.C, which has been provided the judgment of the Supreme Court in the case of Rabindra Kumar Pal alias Dara Singh (Supra), has been complied with.

¶65

As stated earlier, the weapon apparently used by the appellant is a bamboo and in the case of Camilo Vaz (Supra) , where the appellant therein had hit head of the deceased with a “Danda”, which resulted in death, the Supreme Court stated that knowledge has to be imputed to the accused that the act was done with the knowledge it was likely to cause death, but without any intention to cause death or such bodily injury likely to cause death and that the case would fall under 304 Part-II IPC. The above, in the opinion of this Court, is not to say that the use of a danda or bamboo would mean that murder could not be committed, only because a danda or bamboo is used. The same would depend on other factors also.

¶66

In the case of Singapagu Anjaiah vs. State of A.P. reported in (2010) 9 SCC 799, the Supreme Court has held that the intention has to be gathered from the

¶67

Page No.# 11/14

¶68

weapon used, part of the body chosen for assault and the nature of injuries caused. In the present case, the appellant had used a bamboo for the assault which he had apparently used twice on the deceased, when they had met on the banks of the river ‘Kala”. On considering the contents of the confessional statement, which is to the effect that the deceased had assaulted the appellant first, which led to retaliation by the appellant with a bamboo, we are of the view that there was no intention on the part of the appellant to kill the deceased. No doubt, a vital part of the body had been hit. However, the same could have landed there unintentionally. Further, in view of the facts and circumstances of the chance meeting of the parties, we are of the view that some benefit of doubt should be given to the appellant.

¶69

In the present case, the appellant was assaulted by the deceased and the appellant thereafter hit the deceased twice with the bamboo, once on the body and once on the head of the deceased, as per his confessional statement. Keeping in view the fact that the appellant came to know of the death of the deceased only later, we are of the view that there was no intention on the part of the appellant to kill the deceased, though the appellant may have the knowledge that his act was likely to cause death or such bodily injury as was likely to cause death.

¶70

Keeping in view the facts and circumstances of the case, we find that the case would come within the provisions of Exception 4 of Section 300 IPC, inasmuch as, the confessional statement of the appellant is to the effect that the deceased had threatened him and assaulted him on the bank of the river ‘Kala’ during the chance meeting. Thereafter, the appellant had hit the deceased on the back of his body and on his head with a piece of bamboo. In the absence of any evidence regarding what had actually transpired in the place of occurrence, which led to the assault on the deceased, we are bound to consider the contents of the retracted confessional statement, inasmuch as, the same has been the basis for conviction of the appellant. A reading of the same leads us to believe that there was provocation and a sudden fight between the appellant and the deceased. We also find that there is no

¶71

Page No.# 12/14

¶72

inculpatory statement made by the appellant except to the admission that he hit the deceased twice with a bamboo. Further, there is nothing to show that the appellant’s action was cruel, except that the retaliation by the appellant may not have been proportionate to the assault made by the deceased.

¶73

Exception 4 to section 300 IPC states as follows :-

¶74

“ Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner .”

¶75

In the case of Paramananda Pegu (supra) the Supreme Court has held that in order to be assured of the truth of a confessional statement, a rule of credence has evolved that the Court should look for corroboration from other evidence. In substance, the Court should have assurance from all angles that the retracted confession was voluntary and it must have been true. It has also held there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially.

¶76

In the case of Shankaria (supra), the Supreme Court has held that the confessional statement made under Section 164 Cr.P.C was voluntary despite the same having been retracted, on the ground that the said confessional statement had not been retracted as the earliest opportunity. In the present case, the appellant has simply denied making the confessional statement in his examination under Section 313 Cr.P.C, even though the Judicial Magistrate First Class (CW-1), who had recorded the confessional statement had proved the confessional statement. In the crossexamination of CW-1, no suggestion had been put by the appellant, to the effect that the appellant had not made a confessional statement under Section 164 Cr.P.C. or that the contents of the same were untrue.

¶77

As the appellant had made a voluntary confession under section 164 Cr.P.C. and

¶78

Page No.# 13/14

¶79

as the Magistrate who had recorded the said confession had proved the said confession, we find nothing to indicate that the confessional statement was untrue or not voluntarily made. Though the appellant in his examination under section 313 Cr.P.C. has stated that he did not make a confession statement, which had led to an inference that he had retracted his confession, we hold that the retracted confessional statement of the appellant is voluntary and can be acted upon.

¶80

As the retracted confession had also been corroborated by PW-4, the same can be the basis for conviction in terms of the judgement of the Supreme Court in the case of Balbir Singh Vs. State of Punjab [AIR 1957 SC 216] . However, the confessional statement does not show that there was any intention on the part of the appellant to kill the deceased, though he can be said to have the knowledge that his action was likely to cause death or to cause such bodily injury, as was likely to cause death.

¶81

On considering all the above, we are accordingly of the view that the Exception 4 to section 300 IPC is attracted to the facts of this case and as such, the act of the appellant amounts to culpable homicide not amounting to murder. However, as the appellant can be said to have the knowledge that his action was likely to cause death or cause bodily injury as was likely to cause death, though without any intention to cause death, the provisions of Section 304 Part- II of the IPC would be attracted. Thus, keeping in view the decision of the Supreme Court in the case of Camilo Vaz (Supra), we are of the view that the present case falls within the provision of section 304 Part-II IPC and not under section 302 IPC.

¶82

In view of the above reasons, we the appellant is convicted under section 304 Part-II IPC, as section 302 IPC is not attracted to the facts of this case. Consequently, the charge under section 302 IPC is altered to section 304 Part-II IPC.

¶83

The appellant is, accordingly sentenced to undergo imprisonment for a period of 7 (seven) years with a fine of Rs. 20,000/- (Rupees twenty thousand), in default,

¶84

Page No.# 14/14

¶85

imprisonment for another 3 (three) months. The impugned judgement dated 25/11/2021 passed by the Sessions Judge, Baksa, Mushalpur, in Sessions Case No. 20/2019 arising out of Tamulpur PS case No. 258/2018 is set aside to the extent indicated above, i.e. in so far as the appellant has been convicted under section 302 IPC.

¶86

The sentence imposed upon the appellant to undergo rigorous imprisonment for life with a fine of Rs. 2,000/-, in default rigorous imprisonment for 2 (two) months, vide sentence order dated 26/11/2021 passed by the learned trial Court, is also accordingly set aside.

¶87

The appeal is accordingly allowed to the extent indicated above.

¶88

Send back the TCR.

¶89

In view of the assistance provided by the learned Amicus Curiae, the fees applicable to the Amicus Curiae should be paid by the Assam State Legal Services Authority.

¶90

JUDGE JUDGE

¶91

Comparing Assistant

Arjun Hasda v. the State of Assam

Case brief

What is this about?

What did the court decide?

Arjun Hasda v. the State of Assam

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Babun Sarma Vs the State of Assam

Bodiot Zaman Sk @ Kalam Seikh Vs the State of Assam

Sobur Ali @ Abdus Sabur Sheikh Vs the State of Assam

Hafizur Rahman Vs the State of Assam and Anr. E

Hafizur Rahman Vs the State of Assam and Anr.

Abdul Aziz and Anr. Vs the State of Assam