Crl.A. 42/1999 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B.LOKUR THE HON’BLE MR.JUSTICE UB SAHA The appellants, namely, Deoraj Goala and Giridhari Goala, have filed this appeal challenging the judgment and order dated 12.1.1999 passed by the learned Addit ional Sessions Judge, Cachar, Silchar in Sessions Case No. 47 of 1995 whereby and whereunder the appellant Deoraj Goala was convicted under Section 201 read w ith Section 109 IPC and sentenced to suffer R.I. for two years and to pay a fine of Rs.500/- i.d. to suffer another one month’s R.I., and the appellant Giridha ri Goala was convicted under Section 302 IPC and sentenced to suffer imprisonmen t for life and to pay a fine of Rs.500/-, i.d to suffer R.I. for another one mon th. The appellant No.2 was also convicted under Section 201 read with Section 1 09 and sentenced to suffer R.I. for three years and also to pay a fine of Rs.50 0/-, i.d to suffer another one month’s R.I.. Both the terms of imprisonment in r espect of convict Giridhari Goala shall run concurrently. 2. Heard Mr. N. Choudhury, learned Counsel for the appellants as well as M r. K.A. Mazumder, learned P.P. appearing for the respondent-State. 3. The facts of the prosecution case, in brief, are that on 20.11.1993, the husband of the deceased, Umakanta Goala (P.W 10) of Badribasti lodged a written ejahar with the In-charge of Banskandi Outpost of Lakhipur P.S. alleging, inte r alia, that his wife Radhika Goala had disappeared from his house at about 2 p.m. on 19.11.1993 and on that day, at about 4.00 p.m. when his mother went to the well for fetching water, she saw the dead body of his wife floating on the water of the well. It was also stated in the ejahar that the deceased Radhika w as suffering from insanity for last few days. On the basis of the aforesaid ejah ar, the In-charge of Banskadi Outpost recorded the GD entry No. 338 dated 20. 11.93 and the said GD entry was forwarded to the Lakhipur P.S to register a U.D. Case and take up for investigation. Thereafter, Lakhipur P.S. registered a U.D. case No. 28 of 1993 dated 21.11.1993. 4. Subsequently, on 23.11.1993, another written ejahar was lodged by one Shyamsundar Goala ( P.W 1) with the I.C. Banskandi O.P stating, inter alia, that his niece Radhika had been murdered by Smt. Mulki Goalini, Deoraj Goala and Sri Giridhari Goala. In the said ejahar, it was also stated that on reaching the ho use of Umakanta (P.W. 6), he could learn that Radhika had been murdered by the aforesaid accused . On the basis of the said ejahar, another GD entry No. 402 dated 23.11.1993 was made by Banskandi Outpost which was forwarded to Lakhipur P .S for registering a case and the In-charge of Banskandi police outpost took up the case for investigation. The said ejahar was registered as Lakhipur P.S. case No. 214 of 1993 under Section 302/34 IPC. 5. During the course of investigation, the police arrested the accused app ellant Giridhari Goala and Deoraj Goala and forwarded them to the learned Magist rate. Upon completion of the investigation, the policed submitted charge sheet under Section 302/34 IPC against the aforesaid two accused. 6. As the offence was cognizable and exclusively triable by the Court of S essions, the case was committed to the Court of Sessions Judge, Cachar, Silchar . On receipt of the records, the learned Sessions Judge, Cachar transferred the case to the learned Additional Sessions Judge, Cachar for trial. 7. The learned Addl. Sessions Judge in the course of trial, framed charges against accused Deoraj Goala under Sections 201/109 IPC for committing offence of disappearance of evidence relating to murder of the deceased and against acc used Giridhari Goala under Sections 302/201/109 IPC for committing murder of Ra dhika. 8. To bring home the guilt of the accused appellants, the prosecution exami ned as many as twelve witnesses including the official witnesses. On completion of the evidence of the witnesses, the accused appellants were examined under Sec tion 313 Cr. P.C. when they denied the allegations made against them. However, t hey examined one witness in defence in support of their case. 9. Considering the materials on record, the learned Additional Sessions Jud ge recorded the conviction and sentence against the accused appellants as stated supra. 10. Being aggrieved by the said judgment and order of conviction and sentenc e, the accused appellants have come before this Court with the instant appeal. 11. Mr. Choudhury, the learned Counsel appearing for the accused appellants while attacking the impugned judgment and order of conviction and sentence w ould contend, that the learned trial Court in the trial did not consider the f act relating to the insanity of the deceased and also the medical evidence of P.W 9. Dr. K.K. Chakraborty who conducted post mortem on the dead body of the d eceased. His second contention before us is that admittedly there was no eye wit ness of the alleged murder of the deceased Radhika inasmuch as the prosecution a lso failed to prove any circumstances which can connect the accused appellants with the alleged murder except the alleged confessional statements of the accu sed appellant Giridhari before P.W. 5 and 7 which cannot be accepted in view of the provisions of Section 26 of the Evidence Act as the alleged confessional sta tement was given by the accused appellant Giridhari while he was in police cu stody. More so, the said statements of P.W. 5 & 7 being improved statement and first time disclosed in the course of trial cannot be relied upon for the purpo se of convicting the accused appellants. The learned Counsel further submits t hat the P.W. 4 Sri Kishore Goala did not state to P.W.12, Md. Iyajul Rahman, t he I.O. of the case that the accused appellants Giridhari and Deoraj concealed the dead body of the deceased under the straw. Not only that, even P.W. 5 also did not state to P.W 12, Md. Iyajul Rahman, that he found the accused appellant Deoraj, Kabura Goala and Chita Goala were on guarding near the straw and while he tried to climb the top of the heap of straws, the accused Deoraj protested a nd those statements were made first time before the Court at the time of trial. Hence, the same cannot be accepted for convicting the accused appellants being those statements are improved version. 12. He further urges that mere presence of the accused appellants in their h ouse at the time of death of the deceased does not ipso facto connect them wi th the alleged offence. He finally urges that the trial Court also failed to con sider the evidence of D.W 1, Mohan Gowala, whose house is about 10-15 cubits a way from the house of the deceased where the dead body of the deceased was foun d and he is neither a relation of the accused appellants nor an interested witne ss. 13. Par contra, Mr. K.A Mazumder, learned P.P while supporting the impugned judgment of conviction and sentence and resisting the submission of Mr. Choudhur y would contend that admittedly there was no eyewitness relating to murder of th e deceased. He further submits that the whole prosecution case is mainly based on the evidence of P.W 5 and 7 before whom the accused appellants Deoraj, the f ather in law of the deceased and Giridhari, brother in law of the deceased, made their confessional statement and the learned Trial Court rightly convicted th em believing their statements. 14. Upon going through the judgment of the learned Trial Court, it appears that the learned Trial Court convicted the accused appellants, mainly relying o n the extra-judicial confession made by the accused appellants to P.W. 5 and 7 to whom the accused appellants allegedly admitted the guilt, particularly, the s tatement of the accused appellant Giridhari, inter alia, that he ( Giridhari) ha d assaulted Radhika by a bamboo foot and as a result, she died. The said bamboo foot was subsequently discovered from the sugar-cane field on being led by the accused appellant Giridhari. 15. For proper appreciation of the submission of the learned Counsel for the parties as well as evidence on record, it would be proper on our part to disc ussed about the evidence of the prosecution witnesses. 16. P.W 1 stated that he has learnt regarding the murder of his niece fr om Sri Sugrib (P.W 6) and he saw the accused appellants who were in hurry for c remation of the dead body of his niece which he prevented with the help of the local people and ultimately, lodged ejahar ( Exbt. 1) in the Banskandi Outpost. 16. P.W. 2 Smt. Phulmati Goala, a co-villager of the deceased, in her stat ement stated that on the fateful day, she met with the Radhika in Badri where R adhika went to take bath and seeing her , Radhika started crying and told her that she was not allowed to take food by her mother-in-law for four days and al so assaulted her with a ladle and on the same day, the accused Giridhari and h is mother came to her house and enquired about Radhika. 17. P.W 3 Ram Prasad Kahar, a neighbour of the accused appellants in his sta tement stated that before the day of recovery of the dead body of the deceased , the accused appellant Giridhari came to his house in search of Radhika and on the following day, at about 11 a.m., he went to the house of the accused appella nts and enquired about Radhika. But he was told by the mother of Giridhari tha t Radhika was sleeping on the top of the roof of the house. He again in the even ing went there and enquired about Radhika and found the accused persons were g uarding in front of straw and on his enquiry, the accused told that Radhika was on the top of the roof. Thereafter, he called the Secretary, Hari Koirai ( P .W 5) and one Putul Kahar brought Kishore Goala ( P.W. 4). Light was brought and they went in front of the straw where the accused persons were guarding and fo und Radhika lying dead covered with straws. Then P.W 5 asked the accused appe llant Deoraj not to remove the dead body and thereafter informed the Banskandi o utpost. 18. P.W. 4, Kishore Goala, also corroborated the evidence of P.W. 3 and in a ddition to that, he stated that P.W. 3 took Putul Kahar, Raj Narayan Mohan and him to the house of the accused Deoraj where the dead body was kept hidden unde r the straw was found by the accused appellants Deoraj and Giridhari and they id entified the dead body by flushing the torch. 19. P.W. 5, Hari Narayan Koirai who is a neighbour of the deceased as well a s witness of the inquest report ( Exbt. 2) and seizure witness of Ext. 3, also stated the same story as stated by P.W 3 and 4 and in addition to that he stat ed that the hair of the deceased was untied and she was wearing read blouse wi th yellow sari and her hair was not wet. He informed the Baskandi police outpos t over telephone, when the accused appellant Deoraj was asked as to how the de ceased died, the accused appellant Deoraj told that she died by falling into the well and then he measured the depth of the water of the well with bamboo an d found the depth of the water about one and half feet deep water to which no person can die by falling into the water. Thereafter, he sent P.W. 6 Sugrip Go ala to the house of P.W. 1 as Radhika had no parents. He also stated that when he went to the house of the accused Deoraj, Manjur Ali and Muslim were also with him. He also made a deposition before the Magistrate. He further stated th at when the accused Giridhari was taken from Baskandi Outpost to Lakhipur P.S. , he was with him and at that time, the accused Giridhari stated to him that he bit Radhika with part of Betua bamboo. When he told that he would be able t o identify the bamboo, then the police came and the said bamboo had been seiz ed( M. Ext. 1) by the police and he put his signature in the seizure list. 20. P.W 6 is the distant relation of P.W 1. In his deposition he stated t hat Hari Narayan Kuri ( P.W 5) sent him to the house of P.W 1 and he gave depo sition before the Magistrate. Exbt 5 is his deposition and Exbt. 4 is the depo sition of Hari Narayan Goala. 21. P.W 7 Sri Pradip Goala who stated that the accused Giridhari admitted be fore him and the police that he killed Radhika with a bamboo pole. He also sta ted that the accused told about keeping the bamboo in the sugar cane field. In h is cross, he also stated that Giridhari made confession while he was brought in the police station. 22. P.W 8 did not say anything about the incident. Hence, it is not necessa ry to reproduce her statement. P.W 9 is the scribe of ejahar ( Exbt. 1 ) as wel l as seizure witness. 23. The trial Court mentioned two prosecution witnesses as P.W 9. First P.W 9 is Sirajuddin Laskar who is the scribe of Ejahar and the second P.W 9 is D r. K.K. Chakraborty, who had done post mortem over the dead body of the deceased and found the following injuries over the dead body. (1) One abrasion on right Scalpular region, measuring 2X1 c.m. fresh an d anti moretem, Neck externally, healthy, internally on dissection found healthy including the hyord bone. Thorax Larayar and Trichia found congested and contain froth mixed with blood a nd sand particles. Both the lungs are voluminous, water logged congested, a cut section exude forth mixed with blood. Other Healthy Colum of the abdomen stomach Contents- Semi digested food materials and full of water sand particles are present. Other all organs are congested. Column of Trachea- Membraine Membrain and brain congested. Death in my opinion was due to as phexya a s a Result of anti morten drowning. The injury mentioned above may cause fainting if some one is thrown in t o well in such fainted condition death may be caused by as phyxia Ext. 9 is my s ignature. Ex 9(1) is my signature. The abrasion may be caused by the bamboo stick material. 24. In his opinion, the abrasion may be caused by the bamboo stick ( M. Exb t. 1) or may be caused due to fall into the well. According to him, if a dead b ody is thrown into water, then there will be no water in the lungs of the dead body. There is no direct link of the death of the deceased with the injuries o f abrasion. In his cross, he stated that injury abrasion is superficial in natur e and the injury may be caused due to fall in the well also. 25. P.W 10 Umakanta Goala is the husband of the deceased who in his statemen t categorically stated that his wife Radhika was suffering from insanity and o n the day of alleged incident, he went to the house of one of his relative. On the following day, he returned home at noon and when he reached home, he found many people gathering there and on being asked, his father and mother (who was FIR named accused, but subsequently not tried being not charge sheeted), told th at his wife had died falling into the well and his wife was found dead on the b ank of the well. Accordingly, he went to the police station along with Mohan Go ala (D.W 1) and lodged written ejahar. On the following morning, the police came to his house and examined the dead body and sent the same to the Medical Colle ge. He also identified the Ejahar lodged by him as Exbt. 5. In his cross, he sta ted that police told him since night had fallen, he should keep the dead body c arefully and they would come on the following day. Accordingly, the dead body wa s taken to the house from the bank of the well and kept it covered with cloth. T he villagers lifted the dead body. 26. P.W. 11 Baktar Uddin Majumder, ASI of police who prepared the inquest report as identified by P.W 10, husband of the deceased. 27. P.W 12 Md. Iazul Rahman who received first ejahar from P.W. 10, husba nd of the deceased and made a G.D. entry and forwarded the FIR to Lakhipur P.S. and upon receipt of the said ejahar, a UD case was registered and sent P.W 11 t o visit POC and hold the inquest and send the dead body for the post mortem exa mination. In his cross, he specifically stated that P.W. 2 Smt. Phulmati Goala did not state to him that Radhika’s mother in law assaulted Radhika with a spoo n ( Hata ) and that P.W. 3, Ramprasad also did not state that the accused inform ed him that Radhika was over the roof and he informed the police that she would be taken down on arrival of her husband and at about 4 p.m finding Deoraj givin g duty in his house and that after the evening, seeing light in the till and th at in the afternoon, he with Kishore (P.W 4) Hari (P.W 5) Rampati Goala went to the house of the accused persons. P.W. 4 and 5 also did not state to him that the accused appellants Deoraj and Giridhari concealed the dead body of the decea sed under the straw. P.W 5 stated to him that he found Deoraj, Kachu Goala and C hitta Goala were on guard near the house of Deoraj. He also stated that P.W 5 di d not state to him that he tried to climb over the heap of straw and accused app ellant Deoraj protested that led him further suspicion and he alongwith Putul, R amnarayan dispersed the straw. In his cross he further stated that P.W. 7 also d id not state to him that the dead body of the deceased was brought out from the sugar cane field and the accused appellant Giridhari told before him that materi al Exbt. 1, the piece of bamboo was hidden in the sugar cane field and the de ad body was hidden below the straw. 28. Mohan Goala, DW1 is the nearest neighbour of the husband of the decease d Umakanta Goala who also accompanied Umakanta (P.W 10) to the police station at the time of lodging the first ejahar relating to unnatural death of the deceas ed. The aforesaid DW in his statement stated that distance between his house an d the house of the deceased is about 10/15 cubits and she fell in a well and d ied. He also corroborated the statement of P.W. 10, inter alia, that P.W 10 wen t to Banskandi police outpost accompanied by him. He further submitted that as p er direction of the police, they kept the dead body of Radika on a bamboo mat c overed with straw in the house of Umakanta and through out the night, he was pr esent in the house of Umakanta near the dead body. On the next morning, police came and after making inquest report on the dead body, the same was taken away. According to him, the well is about 10- 15 cubits deep and level of the water was 7/8 cubits. The relation between Radika and her family members were quite n ormal. He also stated that the deceased Radhika had three children and after the birth of the youngest child, she suffered from insanity. In his cross, he state d that he is not the relative of the accused appellants. He also confirmed that the well was about 10/15 cubits deep. 29. Having heard the learned Counsel of the parties and on going through the evidence of the prosecution witnesses as well as the impugned judgment and orde r of conviction and sentence, it appears that the learned Sessions Judge found t he accused persons guilty on the basis of the following materials, viz (1) the a ccused persons tried to hide the dead body of the deceased in the court yard of the accused persons but ultimately failed to hide the same as some witnesses rec overed the dead body of the deceased covered by straw; (2) the accused appellant Deoraj narrated the story how and what manner the accused Giridhari committed t he offence and he also made extra-judicial confession before the P.W 5 and 7; a nd (3) the accused appellant Giridhari led the police to the place where the bam boo foot which was used for committing the alleged offence was hidden, on the ba sis of which the said bamboo foot was recovered. Mainly these are circumstances or the pillars on which the super structure of the prosecution story was built up. 30. Now let us see how strong are these pillars of the prosecution story in view of the evidence on record. 31. First we have to note that the story which has been stated before the tr ial Court by the prosecution witnesses, namely, P.W 2,3,4,5 and 7, whether the s aid story was also narrated before the I.O of the case or not. If not stated to the I.O. of the case at the time of recording the statement under Section 161 Cr .P.C., but subsequently stated before the Court at the time of trial, then these evidences cannot be taken into consideration for the purpose of conviction as those evidences can be said to be improved version for first time in the Court. 32. P.W. 12 of the I.O of the case who is very much interested for punishmen t of the accused persons after filing of the charge sheet stated in all fairness stated before the Court that P.W. 2 Fulmati did not state to him the facts what she stated before the trial Court, inter alia, that Radhika’s mother in law a ssaulted Radhika with a spoon and P.W. 3 also did never state to him what he sta ted in the Court, inter alia, that the accused appellants informed him that Rad hika was over the roof and that he informed the police that she( Radhika ) wou ld be taken down on arrival of her husband and that at about 4 p.m. finding th e accused appellant Deoraj giving duty in his house and that after the evening, seeing light in the tilla and that in the afternoon, he with Kishore (P.W 4), Hari (P.W 5), Rampati Goala went to the house of the accused appellants. It als o appears from his evidence that P.W. 4, Kishore also not stated to him at th e time of recording the statement under Section 161 Cr. P.C that the accused app ellants Deoraj and Giridhari concealed the dead body of the deceased under the straw. Not only that, P.W. 5 also first time stated in the Court that he found t he appellant Deoraj, Kachu Goala, Chita Goala were on guard near the house of t he accused appellant Deoraj. The said witness also did not state to him that he tried to climb over the heap of straw and the accused appellant Deoraj protested and that this led to his suspicion and he along with Putul, Ramnarayan disperse d the straw and the hair of