High Court of TripuraCrl.A./22/2010partly allowed

State Of Tripura v. Jhutan Das

2015-10-16Hon'Ble Mr. Justice S. Talapatra,The Hon'Ble Mr Justice U. B. Saha30 pages

INTHEHIGHCOURTOFTRIPURA AGARTALA CRL.ANo.22of2010

.........Appellant -Versus-

........Respondent BEFORE THEHON'BLEMR.JUSTICEU.B.SAHA THEHON'BLEMR.JUSTICES.TALAPATRA "

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), +4 )++* & D "16.Theallegedextra judicialconfession givento Haralal Debnath and Dilip Bardhan, P.W.4 and P.W.2respectivelyhastobeconsideredalongwith the dying declaration of Sikha. In fact, the incriminating circumstance against the accused person cropped up on the basis of alleged extra judicialconfessionbytheaccusedpersontoP.W.2 and P.W.4 that in the night of 19.04.2005 when Sikha had been ailing, the accused person administered insecticides to Sikha and since then herconditiondeteriorated. 17. The basic foundation of a confessional statementwhetherjudicialorextrajudicialisthat, itmustbevoluntaryandfreefromanyinducement, threat.

Admittedly, Jhutan went to his inDlaws housewhereinhis wifehadbeen ailingandP.W.2 and4startedpersuadinghimtodisclosethename ofmedicinewhichheadministeredonSikhainthe nightof19.04.2005.Allegedlyatthatpointoftime, the accused person gave the confessional statementthatheadministeredpoisonSikhainthe night of 19.04.2005. Thus, Sikha was again taken to G.B. Hospital, Agartala on 30.04.2005 and on that day itself FIR was lodged. Thus, the alleged extra judicial confession is not voluntary and cannotbeacceptedinevidence."

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(D E(i)Exbt.10,prescription (ii)Exbt.11,deathcertificate (iii)Exbt.17,forensicexaminationreport, (iv)Exbt.20,injuryreport (v)Exbt.21series,bedheadtickets (vi)Exbt.22series,bedheadtickets (vii)Exbt.23,medicalreportand (viii) Exbt.15, postmortem examination report along with the scientific papers namely,theIndexofSignandSymptomsof

[6] Acute Poisoning. The copy of the chapterD XIIofParaquatandDiquatDRecognitionand ManagementofPesticidespoisoningacase study namely, two cases of Paraquat poisoning from Himachal Pradesh and outcomeofParaquatpoisoningafiveyears study with the copy of the order dated 25.02.2015." % #( #(

8 @ - D "I have gone through the documents that have beensuppliedtome.OnexaminingExhibits10,20, 21 and 22 and also from my own search in the recordsmaintainedintheAGMC&GBPHospital,I state that the patient was treated for consuming some kind of acidic substance. The documents available with the department show that she had been having difficulty in swallowing. The observation in Exhibit 22 that the patient was suffering from Glossitis, according to me, was caused from the swallowing of some acidic substances. The symptoms of Glossitis did not figureinthesubsequentstagesoftreatment.

HavingreferredtotheDysphogiaandMucocytis,I statethatthepatientatthattimealsohadUlcerof tongueonthedateofadmissionandwasunableto talk properly and she was having difficulty in swallowing with burning sensation. On discharge shewasbetter. According to the postmortem report, exhibit 15, underthecolumnantemorteminjuries,itappears fromthefindingsthattheUlcerwasintheprocess ofhealing. As per the postmortem report, cause of death, as has been recorded, occurred due to Meningitis. ThereareseveraltypesofMeningitisandfromthe records it appears to me that the Meningitis was BacterialMeningitis. On 4th May, 2005, the patient was discharged on request.

Before discharge, ECG was done and it was found that the cardiac status of the patient was normal. However, the patient was advised to consultENTspecialist. It is possible that the patent was suffering from Fever and Meningitis on subsequent (2nd) Hospitalizationandsomefindingscouldbepossible frompreviouscorrosiveingestion. WitnessVolunteers:Meningitiscannotbe forParaquatPoisoning. Cross examination by Mr. D.C. Roy, learnedcounselfortheAccused: IhavenottreatedthepatientandassuchIdon't haveanypersonalexperienceofthepatient.

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# +* +2 )++. =? )1 8 ##8 &D "On29.04.2005,thecasewasattendedbyateam of doctors of FMDII Ward including Head of the Department, Medicine and found that she had an ulcer in tongue with h/o (history of) ingestion of corrosiveacidicmaterials,11daysback,servedby her husband. Clinically she was stable excepting ulcertongueandsubsequentlyshewasreferredto ENTspecialist." ENT specialist had seen the case on 30.04.2005 and reviewed on 02.05.2005 and had given necessaryinstruction. On13.05.2005, shebecame unconsciousandclinicallyfurtherdeterioratedand sheexpiredat8pmon13.05.2005.Herdeadbody wassentforPMExaminationasperdemandofSri SailenDas,brotheroflateShikhaDas."

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D "Subsequently Pt was admitted on 24.04.2005 at 10.30 pm with H/O ulceration mouth, difficulty in swallowing and epigastria burning sensation and with loose motion. During admission & hospital stay ulcer around throat observed and posterior tongue observed with dehydration. Pt was

[8] discharged on 27.04.2005 around 12 noon after improvementofulcermouthandloosemotionwith advices." [8] $ # # #

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#( 9( ##8D "Thiscaseisadmittedwithhistoryofindigestionof unknownliquid(Acid)11daysbackulceroftongue andmouthand difficultinswallowing.No medical problematpresent. You are requested to see the case and do the needful for favour of transfer to your side for appropriatemanagement." [9] $ # # # 9 # 8 & 8

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D "On 19.04.05 at 12.05 midnight my husband served me a liquid to drink telling that it is a medicineforpaininabdomen.AfterdrinkingthatI felt burning sensation in the mouth, neck, chest and abdomen. I had continued vomiting 2 (two) days. I was hospitalized at Narsingarh PHC first

[9] and then at GBP hospital on 19.04.2005 at 7.10 am." [10] $ # # # #

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0 =? )+ !6),D "On 23.04.2005 at 9.30 am I attended Smt. Sikha Das,aHindufemaleagedabout24years,wifeofSri JhutanDasofvillage-Narayanpur,AirportP.S.and she complained pain over left arm, left calf and on right supra orbital area (above the eye brow). She alsocomplainedthatshewassufferingfromburning sensationinhermouthanddifficultyinswallowing. Accordingly,IexaminedherintheOutdoorofthat Primary Health Centre and during examination, I foundasfollows: 1.Haematomaoverleftarmmeasuring2"X2"X1⁄2". 2.Haematomaoverleftcalfmeasuring2"X2"X1⁄2". 3. The orbital region of the right eye was found black. 4.Tendernessoverrightsupraorbitalarea.

IdischargedthesaidpatientSikhaDaswithadvise and on that day I also informed the said fact to AirportP.S.overtelephoneasthepatientinformed methatshewasassaulted3/4daysback. All the injuries were simple in nature and caused bybluntobject.Alltheinjurieswereoldmorethan 24hours. On24.04.2005saidSikhaDaswasadmittedinthat PHCat10D30p.m.withthehistoryofulcerationof mouth, difficulty in swallowing and epigastric burning sensation with loose motion. Accordingly, afteradmissionItreatedher.Ifoundulceraround her throat and posterior tongue. She was also suffering from Dehydration. She was given treatmentwithmedicineinthePHC.On27.04.

2005 about 12 noon she was discharged after improvement of ulcer of her mouth and loose motionwithadvise."

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# ? ##8D "No common poison could be detected in the contents of each of the exhibits marked here as 581/1,581/2,581/3,581/4respectively." % $ # #

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? State of Maharashtra vs. Kashirao and others, (2003) 10 SCC 434 8 ? 88& 8 # & 8 ( 3

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? Sandip Vs. State of U.P., 2012) 6 SCC 107, 8 ? # D "49. As against the said submission, Mr. Ratnakar Dash, learned Senior Counsel appearing for the State rightly pointed out that Section 25 of the Evidence Act can be pressed into service only insofarasitrelatedtosuchofthestatementsthat would implicate the accused himself while the other part of the statement not relating to the crime would be covered by Section 8 of the Evidence Act and that a distinction can always be drawninthestatementoftheaccusedbycarefully sifting the said statement in order to identify the admissionpartofitasagainsttheconfessionpart ofit." Sandip Vs. State of U.P.

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? ChattarSinghandAnothervs.StateofHaryana, (2008) 14 SCC 667 &#

# ? # D "20. '18. Confessions may be divided into two classes i.e. judicial and extraDjudicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. ExtraDjudicial confessions are those whicharemadebythepartyelsewherethanbefore a Magistrate or court. ExtraDjudicial confessions aregenerallythosethataremadebyapartytoor before a private individual which includes even a judicial officer in his private capacity.

It also includes a Magistrate who is not especially empowered to record confessions under Section164of the Code of Criminal Procedure, 1973 (for short the `Code') or a Magistrate so empoweredbutreceivingtheconfessionatastage whenSection164oftheCodedoesnotapply.Asto extraDjudicial confessions, two questions arise: (i) weretheymadevoluntarily?and(ii)aretheytrue?

[13] inducement, threat or promise, (1) having reference to the charge against the accused person,(2)proceedingfromapersoninauthority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confessionwouldbevoluntaryifitismadebythe accusedinafitstateofmind,andifitisnotcaused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority.

It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person;or(b)itdoesnotproceedfromapersonin authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantageoravoidanyevilofatemporalnaturein referencetotheproceedingsagainsthim.Whether ornottheconfessionwasvoluntarywoulddepend upon the facts and circumstances of each case, judged in the light of Section24of the Indian Evidence Act, 1872 (in short `Evidence Act').

The law is clear that a confession cannot be used against an accused person unless the court is satisfiedthatitwasvoluntaryandatthatstagethe questionwhetheritistrueorfalsedoesnotarise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on theveracityorvoluntarinessoftheconfession,the courtmayrefusetoactupontheconfession,even if it is admissible in evidence. One important question, in regard to which the court has to be satisfiedwithis, whetherwhentheaccusedmade the confession, he was a free man or his movementswerecontrolledbythepoliceeitherby themselves or through some other agency employedbythemforthepurposeofsecuringsuch aconfession.

Thequestionwhetheraconfessionis voluntaryornotisalwaysaquestionoffact.Allthe factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. [See R. v. Warickshall : (1783) 1 Leach 263].

It is not to be conceived that a man would be induced to make a free and voluntary confessionofguilt,socontrarytothefeelingsand principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confessionisonewhichisnottheresultofthefree will of the maker of it.

[14] treated as an offender and accused, such statement must be regarded as involuntary. The inducementmaytaketheformofapromiseorofa threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosureismadeandthreatofprosecutionifitis not.(SeeWoodroffe'sEvidence,9thEdn.,p. 284.)

A promise is always attached to the confession alternativewhileathreatisalwaysattachedtothe silencealternative;thus,inonecasetheprisoneris measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confessionagainstthethreatenedharm.Itmustbe borne in mind that every inducement, threat or promise does not vitiate a confession.

Since the object of the rule is to exclude only those confessionswhicharetestimoniallyuntrustworthy, theinducement,threatorpromisemustbesuchas is calculated to lead to an untrue confession. On theaforesaidanalysisthecourtistodeterminethe absence or presence of an inducement, promise etc.oritssufficiencyandhoworinwhatmeasure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person groundswhichwouldappeartohimreasonablefor supposing that by making it he would gain any advantageoravoidanyevil,itisenoughtoexclude the confession. The words 'appear to him' in the lastpartofthesectionrefertothementalityofthe accused. 19.

An extraDjudicial confession, if voluntary and trueandmadeinafitstateofmind,canberelied upon by the court. The confession will have to be proved like any other fact. The value of the evidenceastoconfession,likeanyotherevidence, dependsupontheveracityofthewitnesstowhom ithasbeenmade.The valueoftheevidenceasto the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extraD judicial confession is a weak type of evidence. It woulddependonthenatureofthecircumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession.

Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respectofwhomnothingisbroughtoutwhichmay tend to indicate that he may have a motive of attributinganuntruthfulstatementtotheaccused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accusedistheperpetratorofthecrimeandnothing is omitted by the witness which may militate against it.

[15] acceptedandcan bethebasisofaconviction ifit passesthetestofcredibility.'" [13] "

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#D "17. Before we dwell upon the factual score whether the prosecution has proven the case to warrantaconviction,wethinkitapttorecapitulate the principles relating to the jurisdiction of the High Court while deciding the appeal against acquittal. In this context, reproducing a passage from

wouldbeprofitable: "This Court has consistently taken the view that in an appeal against acquittal theHighCourthasfullpowertoreviewat large all the evidence and to reach the conclusion that upon that evidence the orderofacquittalshouldbereversed.This poweroftheappellatecourtinanappeal against acquittal was formulated by the Judicial Committee of the Privy Council in ! " #$ %&'

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[17] down the true scope of the power of an appellate court in hearing criminal appeals(see , %&' ) ) ! ',- %&' . )." Similarviewhasbeenexpressedin/$ - 0 -- + -

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(( . "42. From the above decisions, in our considered view, the following general principles regarding powersoftheappellatecourtwhiledealingwithan appealagainstanorderofacquittalemerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittalisfounded. (2)The Codeof Criminal Procedure, 1973 putsnolimitation,restrictionorcondition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questionsoffactandoflaw. (3) Various expressions, such as, 'substantial and compelling reasons', 'goodandsufficientgrounds','verystrong circumstances', 'distorted conclusions', 'glaringmistakes',etc.

arenotintendedto curtail extensive powers of an appellate courtinanappealagainstacquittal.Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interferewithacquittalthantocurtailthe powerofthecourttoreviewtheevidence andtocometoitsownconclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. 7 - 8 the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is provedguiltybyacompetentcourtoflaw.

58,theaccused havingsecuredhis acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

[18] (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded bythetrialcourt." [14] 7 & #&

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8 D "Only one old scar mark was present on the right forearm. The age of said injury appeared to be more than 21 days from the date of our examination. Nootherexternalinjurywasfoundbyus. On dissection of the dead body, we found the followinginjuries: Inoralcavityinsidethemouthmucosa on both sides were found rough in differentplaces. On section of that rough portion, we found that there was fibrotic changes, it means that there was infection of morethanabout21days." % ? 8 $

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# D "After arrest I interrogated the accused in his house.Thereafter,onbeingshownbytheaccused, I seized a bottle from the dwelling hut of the accused. The accused also told me that there was medicine in that bottle which was used for destroyingofweedsofteagarden." >

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[24] (i) Whether the revelation made by the accused personrelatingtoadministeringtheherbicideswas voluntary, can be accepted in the evidence or whetherinabsenceofthesaidstatement,fromthe materialsavailableonrecorditcanbeconclusively inferred that the accused person administered somecorrosivesubstance? (ii) Whether the accused person was under obligation on the face of the evidence to disclose thespecialknowledgethathehadaboutwhatthe victim consumed that caused injuries inside her mouthandthroatandwhatwouldbetheimpactof suchnonDdisclosure? (iii) Whether the evidence as led is sufficient to hold the charge proved or whether from the evidence,ithasbeenestablishedthattheaccused person has committed the offence making him liabletobeconvicted? [20] #8 VinodKumarvs.Stateof Haryana ( ?

? #8 ##8 7 7 Jadunath Singh vs. StateofU.P. (1971)3SCC577, ? # & 8

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$ # D "itistruethatmywifewenttoherfather'shouse on 22.04.2005 but I cannot say about her treatment."

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B# 8 ( 8##8 # & D "HavingreferredtotheDysphogiaandMucocytis,I statethatthepatientatthattimealsohadUlcerof tongueonthedateofadmissionandwasunableto talk properly and she was having difficulty in swallowing with burning sensation. On discharge shewasbetter." >

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