Judgment & Order (Cav)

M. Zothankhuma, J.

1. Heard Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent.

2. The appellant has put to challenge the impugned judgment dated 04.04.2022 passed by the learned Additional Sessions Judge, Goalpara, in Sessions Case No. 114/2029, by which the appellant has been convicted under Section 302 of the IPC for having killed his friend with an axe.

3. Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant, submits that the learned Trial Court could not have convicted the appellant, as it has not been proved that the axe that had been seized by the police was the weapon used for committing crime in question. He submits that though the axe had been seized by the police and the same was sent to the FSL for forensic examination, there was no proof that the blood stain found on the axe belonged to that of the deceased. As such, there was no proof that the axe was the weapon used in the crime. In this respect, he relies upon the Division Bench Judgment of this Court in the case of Anil Nath Vs. State of Assam reported in 2018 (1) GLT 579. He further submits that the evidence of the doctor was to the effect that in his opinion the injury on the head of the deceased could also have been caused by a tree falling on the head of the deceased.

4. Mr. A. Ahmed, learned Amicus Curiae for the appellant, thus submits that when the foundational facts have not been proved by the prosecution regarding the appellant being the cause of death of the deceased, the conviction of the appellant under Section 302 of the IPC was not sustainable. He also submits that the conviction of the appellant has been made on the basis of the admission given by the appellant in his examination under Section 313 of the Cr.P.C., wherein he admitted to killing the deceased with the axe. He submits that in terms of the Supreme Court in the case of Mohan Singh Vs. Prem Singh and Anr. reported in (2002) 10 SCC 236 and in the case of Ashok Kumar Vs. State of Haryana reported in (2010) 12 SCC 350, conviction of an accused cannot be based merely on the statement made by an accused under Section 313 of the Cr.P.C, as it is not substantive evidence. He accordingly submits that the impugned judgment should be set aside and the appellant should be acquitted of the charge under Section 302 of the IPC.

5. Mr. A. Ahmed, learned Amicus Curiae for the appellant, in the alternative prays that as the evidence also indicates that a sudden quarrel had erupted between the two friends after drinking, the intention of the appellant to kill was not made out. There could also have been no premeditation, as the friends had been drinking together as a few moments prior to the crime being committed. As such, the appellant could at best be convicted under Section 304 Part II of the IPC.

6. Ms. A. Begum, learned Additional Public Prosecutor appearing for the State respondent, on the other hand submits that the axe has been proved to be the weapon of the crime. She further submits that the evidence of PW-5, which has been corroborated by the explanation given by the appellant in his examination under Section 313 of the Cr.P.C., proved that the appellant had used the axe, which was seized from him, for hitting the head of the deceased. As such, the conviction of the appellant had not been made only on the basis of the statement made by the appellant and his examination under Section 313 of the Cr.P.C. Further, the medical evidence corroborates the fact of the deceased having been hit with an axe.

7. We have heard the learned counsels appearing for the parties.

8. The evidence of PW-1, who is the elder brother of the deceased, is that his brother had been assaulted on the head with an axe which resulted in his death. However, he did not know why and how the incident took place. He also stated that he had lodged the FIR.

9. The evidence of PW-2 is to the effect that he wrote down the FIR as requested by the informant, i.e. PW-1.

10. The evidence of PW-3 is to the effect that he knew the informant and the appellant as they belonged to the same village. When he had gone to the house of the appellant 2 years ago at about 6 p.m, on hearing a hue and cry, he saw the appellant being detained by the villagers. He also saw the deceased lying dead near the door in the house of the appellant.

11. The evidence of PW-4 is to the effect that the appellant belonged to his village. On hearing a hue and cry coming from the house of the appellant, 2 years ago at around 6 p.m, he went there and saw the deceased lying dead in the veranda of the appellant’s house. He also found that the appellant had hid himself inside the bedroom of his house. After sometime, the police arrived and caught the appellant and took him away. The police had also taken the weapon of assault, i.e. Kuthar (axe) from the house of the appellant.

12. The evidence of PW-5, is to the effect that he knew the informant and the victim. He also stated that the deceased was his neighbour. One day, about 2 years ago at about 6 p.m, he heard a hue and cry from his grandmother Ako Bala. He went to the house of the appellant where he saw the deceased lying dead on the veranda of the house in a pool of blood and the accused was standing near the deceased with an axe in his hands. He saw injuries on the head of the deceased and realised that the appellant had killed the victim with the axe. He then snatched away the axe from the hands of the appellant and kept it aside. In the meantime, the villagers gathered there and detained the accused. Later the police came and took away the accused. PW-5 also stated that he showed the police the axe, which they took away. He also stated that he gave his statement under Section 164 Cr.P.C.

13. The statement of PW-5 under Section 164 Cr.P.C, is to the effect that Ako Bala Rabha is his grandmother. At the time of the incident, he was at his grandmother’s house. The incident took place at around 6 p.m on 18.03.2019. While inside the house he heard a scream. On going outside, he saw the deceased lying dead on the ground near the door. He saw the appellant, who was his father’s younger brother, standing in the courtyard with an axe. He snatched the axe from behind. The villagers came and tied up the appellant. The deceased was bleeding profusely from the injuries on his head. He also saw blood on the axe. The deceased died on the spot.

14. The evidence of PW-6, who is a Scientific Officer of the FSL, Kahilipara, is the effect that he received a parcel containing one axe with a bamboo handle with suspected bloodstains. The parcel also contained one white coloured dirty t-shirt containing suspected bloodstains. On examination, he found both the articles gave positive test for human blood.

15. The evidence of PW-7 is to the effect that the informant, the deceased, the appellant and he himself belonged to the same village. The deceased was his cousin brother. On being informed that the appellant had killed the deceased with an axe, he went to the house of the appellant and saw the dead body lying in the verandah. He also saw an axe lying nearby. The villagers had also gathered by then. PW-7 further stated that the appellant admitted that he had killed the deceased with an axe, though he did not remember the exact words used by the appellant.

16. The evidence of PW-8, who is the Doctor posted at Civil Hospital, Goalpara, is to the effect that he conducted post-mortem examination on the deceased and found the following injuries:-

                   “1. Lacerated injury of size- 10 x 1 CM noted on front parietal region,

                   2. Front parietal regions margins are negative,

                   3. Lacerated injury of size 8 x 1 CM also noted over left parietal bone,

                   4. Fracture of right parietal bone was noted,

                   5. Raptured membrance was noted,

                   6. Extradural hemorrhage was noted on right parietal region.”

In the opinion of PW-8, the cause of death was due to coma, as a result of head injury caused by a moderately heavy object. Further, the injuries were sufficient in the normal course of nature to cause death to that person. He also agreed to the suggestion that such injuries could be caused if a tree fell on the head of a person.

17. The evidence of PW-9, who is the Investigating Officer, is to the effect that while he was posted as In-charge of Rangsai Out post under Lakhipur Police Station on 18.03.2019, he was given information that the deceased had been killed by the appellant with an axe/kuthar. He entered the information as GD Entry No.354 dated 18.03.2019 and went to the place of occurrence. He found the deceased in the verandah of the house and saw that the deceased had sustained head injuries and blood was coming out. He found the axe lying in the courtyard of the house. The villagers had told him that the appellant had killed the deceased and that they had snatched away the axe from his hands. He then seized the axe and prepared a rough sketch map of the place of occurrence. The next day, PW-1 submitted an FIR, which he entered as GD Entry No. 368 dated 19.03.2019. On the case being entrusted to him for investigation, he sent the witness Ako Bala Rabha and PW-5 to the Court at Goalpara for recording their statements under Section 164 Cr.P.C. On retiring from service on 30.04.2019, he handed over the case to the O/c of Lakhipur Police Station.

18. In the examination of the appellant under Section 313 Cr.P.C., the appellant has given the following answers to Question Nos.4, 10, 11, 15, 17, 20, 21, 23, 24, 37, 42, 56, 74 & 75, which are as follows:-

                   “4. He has further stated that you had assaulted Joyful Rabha in his head. What do you have to say? Ans. It is true.

                   10. He has further stated that he saw that the villagers had detained you. What do you have to say? Ans. It is true.

                   11. He has further stated that he also saw the deceased-Joyful Rabha lying dead near the door of your house. What do you have to say? Ans. It is true.

                   15. He has further stated that he found you hiding inside the bedroom of your house. What do you have to say? Ans. It is true.

                   17. He has further stated that the Police had also taken the weapon of assault, i.e. ‘Kuthar’ from your house. What do you have to say? Ans. It is true.

                   20. He has further stated that he found the deceased lying on the verandah of your house in a pool of blood. What do you have to say? Ans. It is true.

                   21. He has further stated that he saw that you were armed with an axe in your hands & you were standing near the deceased-Joyfal. What do you have to say? Ans. It is true.

                   23. He has further stated that he realized that you must have killed Joyfal with that Axe. What do you have to say? Ans. It is true.

                   24. He has further stated that he then snatched away the axe from your hands and kept it aside. What do you have to say? Ans. It is true.

                   37. He has further stated that one day @ 7 pm, he was present in his house & one of his co-villager Tapan Rabha came to his house and told him that you have killed Joyfal Rabha with an axe in your house. What do you have to say?

                   Ans. I have no idea about it. But, I had killed Joyful Rabha with an axe.

                   42. He has further stated that in the meantime, the villagers also gathered there & you then admitted before them of having killed Joyfal Rabha with an axe. What do you have to say?

                   Ans. It is true.

                   56. He has further stated that he found the weapon of assault i.e. axe (Kuthar) lying in the courtyard of your house. What do you have to say? Ans. It is true. 74. Do you want to adduce any evidence?

                   Ans. No.

                   75. Do you want to say anything more?

                   Ans. On the day of the occurrence, I & Joyful Rabha (deceased) had drunk wine/alcohol. Thereafter, we had a fight. He was an evil man. He had cursed my mother. I then took up an axe lying in my house & struck Joyful with it & the blow fell on his head. He died instantly, I believe, I was under the influence of alcohol then.”

19. It may be stated here that though the Section 164 Cr.P.C statement of PW-5 and his grandmother Ako Bala Rabha had been recorded, Ako Bala Rabha has not been made a prosecution witness. Further, she had expired thereafter.

20. As can be seen from the evidence of the prosecution witnesses, the deceased died in the verandah of the appellant with the appellant standing near him with an axe, which had bloodstains. The fact that the said axe had bloodstains is proved by the report and evidence made by PW-6. PW-5 saw the appellant with an axe with bloodstains standing next to the deceased, who was lying in a pool of blood in the verandah of the appellant. The fact that the appellant was hiding inside the bedroom, as stated by PW-4, has also not been denied by the appellant in his 313 Cr.P.C. examination. Thus, on considering the fact that the appellant had not denied that he had killed the deceased with an axe in his examination under Section 313 Cr.P.C., we find that the same has corroborated the evidence of the prosecution witnesses that he had killed the deceased.

21. In the case of Anil Nath(supra), the Division Bench of this Court had held that mere recovery of a weapon, is not by itself any incriminating circumstance, establishing a link between the accused appellant and the cause of death of the deceased, because the weapon was smeared in blood. When no forensic examination of the weapon and the bloodstains had been conducted to ascertain whether the bloodstains matched the bloodstains of the deceased, it would be unsafe to rely on the proposition that the weapon seized from the residence of the accused appellant was used in the killing of the deceased.

22. On considering the above judgment, we are of the view that though there is nothing to establish that the bloodstains found on the axe was the blood of the deceased, the admission by the appellant in his examination under Section 313 Cr.P.C. that he had used the axe for killing the deceased, corroborated the evidence of the prosecution witnesses that the axe which had been used by him, was the axe that had killed the deceased.

23. In the case of Anil Nath(supra), there was no admission made by the accused that the weapon seized from his house was the weapon used for the crime. However, in the present case, the appellant has admitted that the axe found in his courtyard was the weapon used for killing the deceased. Thus, the decision of Anil Nath(supra), is not applicable to the facts of this case.

24. In the case of Mohan Singh(supra), the Supreme Court has held that statement made by an accused under Section 313 Cr.P.C. is not a substitute for the evidence of the prosecution witnesses and it can be used for appreciating the evidence led by the prosecution to accept or reject it. The statement under Section 313 Cr.P.C. is not a substantive piece of evidence and cannot be made the sole basis of conviction. However, the statement made in defence by the accused under Section 313 Cr.P.C, can certainly be taken aid of, to lend credence to the evidence led by the prosecution.

25. In the case of Ashok Kumar (supra), the Supreme Court has held that the use of a statement under Section 313 Cr.P.C. as an evidence is permissible, as per the provision of the Code, but has it’s own limitations. The court may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. However, such statements made under this Section should not be considered in isolation, but in conjunction with the evidence adduced by the prosecution.

26. In the case of Ashok Debbarma @ Achak Debbarma Vs. State of Tripura, reported in (2014) 4 SCC 747, the Hon’ble Supreme Court has held that statements made under Section 313 Cr.P.C are not enough for conviction solely by themselves. However, statements made under Section 313 Cr.P.C can be used for corroboration along with other evidence.

27. The evidence of PW-5 clearly shows that the appellant was standing with an axe next to the deceased, who was lying dead in the verandah of the house of the appellant with head injuries and in a pool of blood. PW-5 had snatched away the axe from the appellant. PW-7 in his evidence has stated that the appellant admitted before them that he had killed the deceased with an axe. These facts have not been denied by the appellant in his statement under Section 313 Cr.P.C. In view of the fact that the appellant’s statement under Section 313 Cr.P.C. has corroborated the evidence of the prosecution witnesses, the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubt.

28. In view of the reasons stated above, we do not find any ground to interfere with the impugned judgment and order. The appeal is accordingly dismissed.

29. Send back the TCR.

30. In appreciation of the service rendered by the learned Amicus Curiae for the appellant, his fees should be paid by the Assam State Legal Services Authority as per the norms.