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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

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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

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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.

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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.

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(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

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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.

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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(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-

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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

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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