IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH. Crl. Appeal No.

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1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH Smt. Moni Orang - Versus The State of Assam - Appellant - Opposite party BEFORE HON BLE MR. JUSTICE I. A. ANSARI HON BLE MRS. JUSTICE ANIMA HAZARIKA Advocates : Mr. D Talukdar Amicus Curiae. Mr. D Das, Additional Public Prosecutor. Date of hearing and judgment : JUDGMENT & ORDER (ORAL) This appeal is directed against the judgment and order, dated , passed, in Sessions Case No. 101 of 2004, by the learned Sessions Judge, Dibrugarh, convicting the accused-appellant, Smt. Moni Orang, under Section 302 IPC and sentencing her to undergo imprisonment for life and pay fine of Rs. 2,000/-, and in default of payment of fine, suffer rigorous imprisonment for a period of 2 (two) months. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: Deceased Samaru Orang was husband of accused Moni Orang. The couple used to live along with their daughter, accused Rumi Orang.

2 Page 2 of On , the dead body of Samaru Orang was found floating in a pond near paddy field of village Lekai, the accused and the said deceased being residents of the said village. When the factum of the said floating dead body was brought to the notice of Bijoy Orang, the head-man of the said village, Bijoy Orang lodged an information, in writing, in this regard, at Milan Nagar Police Out Post. Based on the said information and treating the same as the First Information Report (In short, FIR ), Dibrugarh Police Station Case No. 217 of 2003, under Sections 302/201/34 IPC was registered against the accused-appellant, Moni Orang, and her daughter, Rumi Orang. During the course of investigation, police visited the place of occurrence, held inquest over the said dead body and interrogated accused Moni Orang and her daughter, Rumi Orang, and a dao and an axe having been recovered at the instance of accused Rumi Orang and the same were seized. 4. So far as accused Moni Orang was concerned, she, having expressed her willingness to confess, was forwarded to the Sub- Divisional Judicial Magistrate (S), Dibrugarh (in short, SDJM, Dibrugarh). Judicial confession of accused Moni Orang was recorded by the SDJM (PW11). In her said confessional statement, accused Moni Orang admitted to have assaulted and killed her husband, Samaru Orang. On completion of investigation, police laid charge-sheet, under Sections 302 and 201 read with Section 34 IPC, against the accused Moni Orang and her daughter, Rumi Orang. As Rumi Orang was minor, she was sent to juvenile Court for being dealt with in accordance with law.

3 Page 3 of At the trial, when a charge, under Section 302 IPC, was framed against the accused-appellant, Moni Orang, she pleaded not guilty thereto. No charge, it may be noted, was framed against the accused-appellant under Section 201 IPC. 6. In support of their case, prosecution examined altogether twelve witnesses. The accused-appellant was, then, examined under Section 313 Cr.PC and, in her examination aforementioned, she denied that she had committed the offence, which she was alleged to have committed, the case of the defence being that of denial. 7. As regards the confessional statement, which had been, admittedly, made by the accused-appellant, it was her specific case that while she was being brought to the Court from jail, she had been told by police to make confession to the effect that she had killed her husband and she was also asked by the police to tell the Court that she had produced the weapons of assault, namely, the axe and the dao, which were seized by the police. In short, thus, the defence of the accused-appellant was that the confessional statement, which she had made, was not voluntary and truthful. 8. Having, however, concluded that the accused-appellant was guilty of the offence, which she stood charged with, the learned trial Court convicted her accordingly and passed sentence against her as mentioned above. 9. We have heard Mr. D. Talukdar, learned amicus curiae, and Mr. D. Das, learned Addl. Public Prosecutor, Assam.

4 Page 4 of While considering the present appeal, it may be noted that Dr. R.K. Gogoi (PW3) was, admittedly, the one, who had conduted post mortem examination on the dead body of Samaru Orang and his findings were as follows: (1) One black eye on the right side. 2. One incised wound on the left side of the neck measuring 16 x 3 cms cutting the 1 st survical vertebrae. 3. One incised wound on the left ear measuring 1 x 0.5 cms. 4. One incised wound in the left angle, measuring 2 x 1 cms. 5. Incised wound below the left ear measuring 6 x 2 cms. 6. One incised wound on the left upper neck measuring 8 x 1 cms. 7. One incised wound on the middle of the neck in the left side measuring 3 x 1 cms. 8. One incised wound on the lower neck on the left side measuring 4 x 1 cms. 9. One incised wound on the right palm measuring 10 x 3 cms cutting the metacarpals bone. 10. One incised wound on the right palm measuring 10 x 2 cms. Cutting the metacarpals bone. 11. Multiple cut injury on the right palms, forearm, fingers and also the index and middle fingers of the right side. 12. One incised wound on the dorsum of left hand measuring 3 x 1 cms. 13. One incised wound on the dorsum of left wrist joint measuring 2 x 1 cms. 14. One incised wound on the dorsum of left forearm in lower 3 rd measuring 3 x 1 cms. Examination of Cranium and Spinal Canal - All were healthy. Examination of thorax All were healthy. Examination of Abdomen All were healthy.

5 Page 5 of In the opinion of the doctor (PW3), death was caused due to shock and hemorrhage as a result of the injuries, which had been sustained by the said deceased on his neck, the injuries being ante mortem and homicidal in nature and that the same were caused by sharp-cutting weapon. 12. It may be noted that the doctor (PW3) was not cross-examined by the defence. In fact, the findings, given by the doctor, and his opinion, with regard to the nature of the injuries, which the said deceased was found to have sustained, the nature of the weapon, which might have been used, and the cause of death, were not in dispute at the trial. We, too, do not notice anything inherently incorrect or improbable in the evidence given by PW We, therefore, hold that Samaru Orang had met homicidal death. The question, however, remains: Whether the present accusedappellant was the one, who had caused the death of her husband, Samaru Orang? 14. While considering the question posed above, it needs to be noted that there was, admittedly, no eye witness to the occurrence of assault on the said deceased. The conviction of the accusedappellant rests, admittedly, on the confessional statement, which she is claimed to have made before the SDJM (PW11). 15. In order to place reliance on a confessional statement, the confession must be shown to have been made voluntarily and if the confession is found to have been voluntarily made, prosecution is still

6 Page 6 of 10 required to discharge its burden of proving that the confession, so made, was true. 16. Bearing in mind the position of law as indicated above, when we advert to the evidence of the SDJM (PW11), we find that according to her evidence, the accused-appellant was produced before her on and she (PW11) remanded the accused to judicial custody for reflection and though the accused was to be re-produced on , the accused-appellant was produced on , but even on that day, confessional statement of the accused was not recorded and the accused was, once again, sent to judicial custody and she was produced from the judicial custody, on , before PW PW11 has deposed that having explained to the accusedappellant the consequences of making of confession and after making it clear to the accused-appellant that she (PW11) was not a police officer and that the accused-appellant was not bound to make confession, she (PW11) recorded the confessional statement of the accused-appellant, when the accused-appellant expressed her willingness to make confession. The learned Sessions Judge has relied upon the confession so made by the accused-appellant. 18. We have carefully examined the record relating to the confessional statement and we find that the accused-appellant was produced, as already indicated above, before the SDJM (PW11) on and she was remanded to judicial custody, for reflection on the confessional statement, which the accused-appellant proposed to make. Though the accused-appellant was to be reproduced before

7 Page 7 of 10 PW11 on the following day, i.e., on , the accused-appellant was produced before the SDJM (PW11) on However, even on , her confessional statement was not recorded and she was, once again, sent to judicial custody and reproduced, on , for recording of her confessional statement and it was, then, that her confessional statement was recorded. 19. The record also reveals that on her production before the SDJM (PW11) on , the accused-appellant was told by PW11 that PW11 was not a police officer, the accused-appellant must not make any confession, because of the fact that others had asked her to make confession, and also that if the accused-appellant made confession, the same would be used against her. The record further reveals that the accused-appellant was, then, placed, in the custody of the Court constable, for reflection. 20. The chronology of events, depicted above, clearly discloses that it was from the police custody that the accused-appellant was produced before the SDJM (PW11) on and it was, again, in police custody, that the accused-appellant was sent on judicial remand to jail. On , the accused-appellant was brought to the SDJM (PW11) by police and reproduced, on , before PW11, once again, by police and, then, PW11, having cautioned the accused-appellant, as indicated above, and having explained to the accused-appellant the consequences of making confession, placed the accused-appellant, surprisingly enough, in the custody of the Court constable.

8 Page 8 of Thus, the accused-appellant was, at all material times, remained in effective control and custody of police. In such circumstances, it could not have been held by the learned trial Court that the accusedappellant had made voluntarily the confession, which PW11 recorded. 22. It appears to have completely escaped the attention of the learned trial Court that the accused-appellant, during her examination under Section 313 Cr.PC., specifically stated that while taking her to the Court from jail, police had asked her to make confession and she had also been asked by the police to tell the Magistrate (PW11) that it was at the instance of the accused-appellant that the dao and the axe were recovered and seized. 23. What crystallizes from the above discussion is that the confessional statement of the accused-appellant could not have been held to be made voluntarily. This inference gets reinforced from the fact that PW11 did not even ask the accused-appellant as to how she had been treated by the police, while she was in the custody of the police, nor did PW11 assure the accused-appellant that even if the accused-appellant chose not to make confession, she would not be handed over to the custody of the police. At no relevant point of time, the accused-appellant can be said to have been made completely free from the influence of the police. 24. In the circumstances mentioned above, we hold that the confessional statement, which the accused-appellant had made, ought not to have been treated as a voluntarily made confessional statement. Though the learned trial Court has also observed that the weapons of offence, namely, the dao and the axe, were seized at the

9 Page 9 of 10 instance of the accused-appellant, the learned trial Court appears to have not noticed that there was no evidence on record to show that the said seized weapons were the weapons, which had been used in causing, on the person of Samaru Orang, the injuries, which had resulted into his death inasmuch as the said weapons were never subjected to serological examination nor was there any cogent admissible evidence on record proving that the said weapons were the ones, which had been used for causing Sumaro Orang s death. 25. When the confessional statement has been found to be involuntary, it would be a futile exercise to determine if the confession was true. 26. Because of what have been discussed and pointed out above, we are clearly of the view that the evidence on record do not prove, beyond reasonable doubt, that the accused-appellant was the one, who had caused the death of her husband, Samaru Orang, and she ought to have been, therefore, acquitted of the charge, which had been framed against her, by according to her, at least, benefit of doubt. 27. In the result and for the reasons discussed above, this appeal succeeds. The conviction of the accused-appellant and the sentence, which has been passed against her, are hereby set aside. The accused-appellant is held not guilty of the offence charged with and she is acquitted of the same under benefit of doubt. 28. Let the accused-appellant be set at liberty, forthwith, unless she is required to be detained in connection with any other case.

10 Page 10 of Let the learned amicus curiae be paid a sum of Rs.5,000/- for his valuable assistance rendered to the Court. 30. Send back the LCR. JUDGE JUDGE Kalpana-Paul