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GAHC010115202016

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : CRL.A(J) 73/2016

1:BHARKA MAHALI

VERSUS

1:THE STATE OF ASSAM

2:SRI SUNIL MAHALI
S/O-LT. ROBILAL MAHALI
VILL-NAPUK BABUDONGA GAON
P.S.-SONARI DIST.-SIVASAGAR
ASSAM

Advocate for the Petitioner : MR.M B U AHMED

Advocate for the Respondent :

BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE MIR ALFAZ ALI

ORDER

Date : 08-04-2019

A.M. Bujorbarua, J.

1. Heard Mr. M.B.U. Ahmed, learned amicus curiae for the appellant and Mr. M. Phukan,
learned Addl. P.P. for the State of Assam.

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2. An ejahar dated 29.07.2013 was lodged by Sunil Mahili, son of Late Rabilal Mahili,
interalia, stating that his mother was found missing since midnight of 28.07.2013 at about 5
AM and on the subsequent day, she was found clad only in a blouse, lying dead on the road
near their house.

3. Postmortem report shows two bruises on the upper front part of the neck on either side
of the mid line. Bruise on the right side measuring 2 cm diameter and on left side measuring 3
cm on average diameter were also found. The tongue was cut on the right edge in front and
clotted blood around the wound was noticed. Two long abrasions on each side of the labia
majora of the vagina placed along the long axis measuring 3 cm x ½ cm was also found along
with clotted blood. It was opined that the cause of death was due to asphyxia as a result of
throttling.

4. There is also a confessional statement of the accused and from the manner, in which,
the confessional statement was recorded, it appears that all the required procedure of law for
recording a confessional statement under Section 164 CrPC was duly followed, including the
accused being explained about the consequence of such confessional statement as well as the
period of reflection required to be given to the accused was also given. In his confessional
statement (English translation), the accused stated as follows:

“……………………… I inserted a lathi in her vagina and it stared bleeding.
Then I sat on her chest and strangled her to death. I pressed her neck for half
an hour. Later she died.”

5. The confessional statement of the accused that he had strangulated the deceased to
death by pressing her neck for half an hour appears to be in conformity with the medical
evidence in the postmortem report. Further the PW-1, Satya Mahali had stated that the
deceased was virtually naked and she was only wearing a blouse and that blood was oozing
out of the ears nose and there were injuries on the dead body.

6. PW-2, Dr. Ranjit Kumar Gogoi, who conducted the postmortem examination had also
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deposed as regards the injury and cause of death as mentioned in the postmortem report. PW-
5, Sunil Mahali had stated in his deposition that blood was also coming out of the private part
of the deceased. PW-6 Sushil Mahali also deposed that blood was found in the private parts of
the deceased.

7. PW-1, PW-4, PW-6, PW-7 and PW-8 also deposed that there were dragging marks in the
place and the blood of the deceased was found leading to the house of the accused. PW-9, the
Investigating Officer had deposed that he had forwarded the accused to the court for
recording of his confessional statement and upon it being recorded, he had collected the
same.

8. The evidences led by the prosecution witness are inconformity with that of the
confessional statement made by the accused as well as the medical evidence in the post-
mortem report and the deposition of PW-2, the doctor.

9. Mr. M.B.U. Ahmed, learned amicus curiae raises an issue that in the statement under
Section 313 CrPC, the accused had retracted his confessional statement. In this aspect, we
refer to the pronouncement of the Supreme Court rendered in Sankaria Vs. State of
Rajasthan, reported in (1978) 3 SCC 435, wherein, it was taken note of that confessional
statement was recorded in that case on 14.06.1974 and after the prosecution evidence was
closed and when the accused was examined under Section 313 CrPC, it was for the first time
that the accused had retracted the confessional statement and took the plea that it was made
under duress. In the circumstances, it was accepted that such confessional statement was
voluntarily made.

10. The Apex Court in Ram Singh Vs. Central Bureau of Narcotics reported in (2011)
11 SCC 347, wherein in paragraphs-17 and 18, a similar view was taken that confessional
statement was made voluntarily and retraction was attempted only at the stage of examination
under Section 313 CrPC. Similar of the view was taken by this Court in Nirmal Moran Vs.
State of Assam reported in 2003 (2) GLT 266.

11. In the instant case, we take note of the fact that the confessional statement was
recorded on 31.07.2013, whereas the statement under Section 313 CrPC was recorded on
26.02.2015. In view of the similarity of the circumstances as that of the aforementioned
matters before the Supreme Court, we are inclined to accept the view taken by it that in the
given circumstances, the confessional statement is to be accepted to have been voluntarily
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made.

12. In the evidence of the prosecution witnesses, we do not find any mitigating
circumstances in favour of the appellant, which may require this court to take a different or
lenient view in the matter. On the other hand, we have noticed certain circumstances to the
extent that in the confessional statement of the accused as well as medical evidence and
postmortem report and the deposition of other prosecution witness regarding injury on the
private parts of the deceased, a further offence under Section 376 Indian Panel Code may also
have been committed by the appellant. On the date of the occurrence, the amended Section
376 IPC was in force, where insertion of any other object would also bring the offence within
the definition of rape under Section 375. The confessional statement reveals that the appellant
had inserted a stick in the vagina of the deceased, and Section 375 of the Indian Panel Code
defines that rape is committed, even if the perpetrator inserts, to any extent, any object or a
part of the body, not being the penis into the vagina of the victim. Although the appellant is
not convicted under Section 376 IPC, nor there is any charge against him under the said
section, but as materials are available to indicate the occurrence of such act, we take it to be
an aggravating circumstances against the accused.

13. In view of the above, we disinclined to interfere with the conviction and sentence of the
appellant. Accordingly, we uphold the conviction and sentence of the appellant dated
07.12.2015 rendered by the learned Additional Sessions Judge, Sivasagar in Sessions Case No.
254 (S-C) of 2013, under Section 302 IPC.

14. The jail appeal accordingly stands dismissed.

15. Appreciating the assistance rendered by Mr. M.B.U. Ahmed, learned Amicus Curiae, it is
directed that he be paid Rs. 7500/- for the assistance rendered by him, on furnishing of a copy
of this judgment.

16. Send down the LCR.

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JUDGE JUDGE

Mkk

Comparing Assistant