A.H. SAIKIA, J

(1.) Heard Mr. M. H. Choudhury, learned counsel for the appellant and Mr. D. Das, learned Public Prosecutor, Assam.

(2.) The conviction of the appellant under Sections 302/201, IPC and the resultant sentence handed down to him to suffer imprisonment for life and to pay a fine of Rs. 1000/- in default, further rigorous imprisonment for six months under Section 302 IPC and further sentence to suffer rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 500/- in default further rigorous imprisonment for three months under Section 201 IPC when sentences were directed to run concurrently, have been assailed in this Criminal Appeal.

(3.) The prosecution case in a nutshell is that on 18.11.99 P.W.-1, Loyan Chachoni lodged an ejahar with Majbat Police Station complaining that her younger sister Smti Chiyanu Koya, aged about 35 years and wife of late Bheem Koya of line No. 22 of Lambari Tea Estate, having three children, went missing since last Dewali. On enquiry, it came to light that Pandav Koya son of Dev Koya assaulted and killed her sister and kept her dead body hurried under ground. On the basis of the said ejahar a criminal case was started under Sections 302/201 IPC.

(4.) On investigation, the police found the clue that the dead body of the Chiyanu was concealed by burying the same in the house campus of the appellant who confessed that he murdered the deceased and buried her dead body in his house premises. The police requisitioned the services of the Executive Magistrate, P.W.-6 Nareswar Upadhyay and exhumed the dead body. The appellant confessed before the police, Magistrate and the villagers that he committed such crime. Inquest report was prepared by P.W.-6. Dead body was sent to Mangoldoi Civil Hospital for post mortem examination. On being refused by the said Civil Hospital authority to accept the dead body, it was sent to Gauhati Medical College Hospital at Guwahati. P.W.-5, Dr. B.C. Roy Medhi conducted the post mortem of the dead body of Chiyanu Koya and he found the following injuries : "Partly decomposed and party saponified female deadbody wearing one white blouse and bra stained with earth and soil. Rigormortis passed off from the body. Body looks pale. Abdomen distended. Earth, sand and soil found in the mouth cavity. Scalp hairs missing. The scalp, chest, abdominal walls are saponified. Injuries : (1) One contusion 4 c.m. x 3 c.m. present at anterolateral aspect of right arm 5 c.m. above the elbow joint. On dissection - contusion and harorrages present in the muscles underneath contusions and closed fractures of right humerus bone present. Blood clots are firmly adherent at fracture site. Scalp : Scalp hairs saponified and present of contusion. On dissection 3 c.m. x 2 c.m. present on right side of frontal region. Skull, vertebrae healthy. Membrance and brain decomposed. The abdominal organs are found decomposed. Stomach-contains gas and no food materials. Uterus-Healthy. Empty and parous. Chest wall - On dissection contusions present in muscles over sternum and over inter-costal space on both sides. Ribs-Right side 3rd to 8th fractured. Left side - 4th to 9th fractured. The pleurae and both lungs lacerated and decomposed. The pleural cavity contains about I lit. blood clots. Heart is decomposed. Chambers empty. Opinion : Cause of death is due to haemorrhage and shock resulting from the injuries sustained on the body as described. The injuries are antemortem and caused by blunt force impacts and homicidal in nature. Approximate time since death 10 to 14 days."

(5.) P.W.-5, in his evidence, opined that the cause of death was due to haemorrhage and shock resulting from injuries sustained on the body. His further opinion was that the injuries were ante mortem and caused by blunt force impacts and homicidal in nature. Approximate time since death 10 to 14 days.

(6.) During the course of investigation, the accused-appellant produced the branch of tree with which he attacked the deceased and caused her death before the police. He also produced the spade which was used for digging the pit for concealing the dead body. The appellant was all along present when the dead body was disinterred. On completion of the investigation, police submitted charge sheet against the appellant under Sections 302/201 IPC. The learned Sessions Judge, on commitment of the case being triable by him, after hearing the learned counsel for the parties, framed charge against the appellant under the above mentioned Sections and when the charges were explained to the appellant, he pleaded not guilty. The appellant was examined under Section 313 Cr.P.C.

(7.) The prosecution in support of its case examined as many as eight witnesses including the Doctor, P.W. 5 as already mentioned above, Magistrate P.W.-6 and the Investigating Officer (I.O.), P.W.-8. (8.) The learned Sessions Judge, having detailed inspection of the material evidence on record including the medical evidence, noticed already hereinabove and after thorough consideration of the arguments of the learned counsel of both the parties, on conclusion of trial, was pleased to hold that the prosecution was able to prove the charges against the appellant under Section 302/201 IPC beyond all reasonable doubt and accordingly he convicted and sentenced him as already stated above.

(9.) Before delving upon the submissions advanced on behalf of the learned counsel for the parties, it would be pertinent to make a proper assessment and comprehensive scanning of the entire evidence adduced by the prosecution.

(10.) Be it noted that the impugned convictions and sentences were precisely based on extra judicial confession and recovery of the dead body and incriminating articles at the instance of the accused-appellant.

(11.) P.W.-1, the informant, deposed that on the day of Dewali, her sister Chiyanu went to her house on day time and came home in the evening and since then she went missing. Her dead body was found buried in the compound of the appellant. She stated that the accused told the police that killed Chiyanu.

(12.) P.W.-2, Rajen Gore, corroborating the testimony of P.W.-1, stated that the appellant was a labourer in the Tea Estate. Deceased Chiyanu was his bou (elder brothers wife) and she used to live with him along with her children. During Dewali Chiyanu went missing and in presence of the police personnel and a Magistrate the appellant admitted that he killed Chiyanu because she used to move around becoming loose character. The accused pointed out the place where he kept the dead body buried. The appellant stated that he killed her by beating with a lathi. The police dug the dead body out. The appellant gave the spade by which he hurried the dead body and the lathi which was used committing the murder. The police seized all those things. Exht. 1 was the seizure list and Exht. 1(1) is his signature.

(13.) P.W. 3, Mangal Shah, fortifying the statements made by P.Ws 1 and 2 stated that late Chiyanu was the appellants bou (elder brothers wife). According to this witness, the appellant told before the police that he killed Chiyanu and he was present when he said so before the police. The appellant shewed the place where the dead body was burried. The police dug the dead body. It was Chiyanus dead body and the same was kept burried in the accused persons yard near his dwelling house.

(14.) P.W.-4, Sukdew Panika, in corroborating with the statements made by P.Ws. 1,2 and 3, evidenced that the deceased was the appellants nabou (elder brothers wife) and in his presence, the accused told the police that he killed Chiyanu with lathi and kept her dead body burried in a pit. The police recovered the dead body from the pit. The dead body was burried in the appellants own land very close to his dwelling house. The appellant also showed the police the lathi i.e. the branch of a tree by which he committed the crime and the spade with which he dug the pit.

(15.) From the medical evidence of P.W. 5, the Doctor, as has been mentioned at the very outset of this judgment, this Court finds that the deceased was inflicted with multiple injuries. There were injuries over the scalp and fractures on the right arm, right humerus, including the injuries in the chest and fractures on the Third to Eighth ribs and Fourth to Ninth ribs. Doctor found that all those injuries were caused by blunt force impacts. The Doctor testified that the death was caused about ten to fourteen days ago.

(16.) P.W.-6, the Executive Magistrate, testified that he held the inquest on the dead body on being invited by the police. On 19.11.99, he went to the labour line and there he found fresh earth in the corner of the house. He had the earth dug out by men and found the deadbody of a woman. P.W.-1 identified the dead body to be that of Chiyanu. He prepared the inquest report on the dead body. The dead body was half decomposed. He also found a hand broken. Thereafter he handed over the dead body to the police. The appellant showed the place of burial and near the said place of burial, the appellant produced the lathi (a tree branch) used in the crime and the spade. According to the Magistrate, the appellant said that he killed the deceased with that lathi and that with spade he dug the pit in which he kept the dead body buried. The police seized those articles. Exht. I was the seizure list and Exht. 1(2) was his signature.

(17.) The deposition of P.W-7, Kalawati Tanti did not disclose any important material as this witness said that he knew nothing about the occurrence. (18.) The I.O., P.W.-8, deposed that on 18.11.99 on receipt of an complaint from P. W. 1, he registered a police case and went to the place of occurrence and arrested the appellant. On interrogation, he came to know from the appellant that Chiyanus dead body was kept buried in his yard. He kept the spot indicated by the appellant guarded by the VDP personnel. On next day he went to the place of occurrence along with the Executive Magistrate, P.W.-6. They took the appellant with them. As the appellant admitted in presence of the public, the Magistrate, he disinterred the dead body. On being asked the appellant produced the spade used in digging the hole and the lathi used to kill the deceased. He seized both the articles by seizure list Exbt. 1 and Exht. 1(3) was his signature. He stated that the appellant confessed his guilt.

(19.) The appellant in examination under Section 313 Cr. P.C. denied the allegations of commission of the crime. However, to a question being Q.No. 6 to the effect that P.W.-6, the Executive Magistrate, averred that having confessed his guilt he pointed out the place where he kept the dead body buried, the appellant replied in affirmative saying that he said so out of fear, however he showed the dead body because he saw it while ploughing.

(20.) Relying on the evidence of the witnesses above narrated, Mr. Choudhury, learned counsel for the appellant, has strenuously argued that the impugned convictions and sentences basically being grounded on the confession made by the appellant under custody before the police, though in presence of P.W.-6, Executive Magistrate and extra judicial confession made by him before P.W.s 1, 2, 3 and 4 implicating himself with the offence of murder and subsequent leading to discovery by the appellant of the offending articles, cannot be sustained inasmuch as save and except the recovery of the dead body from the house premises of the appellant, there was absolutely no credible material against the appellant to rope him in the involvement of the commission of murder of the deceased. Extra judicial confession made by the appellant before the Magistrate and villagers was not admissible in evidence. It is also submitted by Mr. Choudhury that in terms of Section 27 of the Evidence Act (for short, the) the police failed to record the confessional statement of the appellant through which the appellant led the police or the Magistrate to the place where he concealed the dead body and as such, such confession or statement incriminating himself before the police was not admissible. He has further contended that the extra-judicial confession was being made by appellant under the police custody and the same cannot, thus, be the basis of conviction. In the premises aforesaid, according to Mr. Choudhury, the impugned convictions and sentences are liable to be set aside.

(21.) Defending the appellants convictions and sentences, Mr. Das, the learned P.P. has urged that extra judicial confession made to the witnesses and the Magistrate i.e. RWs. 1,2,3,4 and 6 respectively was admissible and there was no legal lacuna in accepting voluntary confession of the appellant leading to discovery of the dead body as well as those incriminating articles. The learned Judge was, therefore, totally justified in imposing the impugned convictions and sentences upon the appellant.

(22.) To attract Section 27 of the Act, the statement of the accused leading to discovery of the fact is required to be recorded and that too in first person singular. Unless the confession or statement through which the accused leads the police or Magistrate to the place where he concealed the dead body is reduced in writing, it is unsafe to believe and rely upon it. The exact statement of the accused person leading to information and discovery is needed to make it admissible in evidence under Section 27 of the. In the instant case, neither the record nor the testimony of the witnesses does reveal that such statement of the appellant who is in police custody confessing the murder of the deceased and information leading to discovery of the incriminating articles used in committing the crime was ever recorded either by P. W.-6, the Magistrate or P.W.-8, the I.O. and hence the applicability of Section 27 of thecannot be brought in the case at hand

(23.) However, looking at the conduct of the appellant in the entire episode vis-avis evidence of P.W. 6 and P.W.8 that the appellant had taken them to the place of occurrence and on his pointed information only, the dead body was exhumed from his premises, it appears that such conduct of the appellant can be accepted as relevant and probable in evidence under Section 8 of thewhich, providing for motive, preparation and previous or subsequent conduct to be relevant fact for any fact in issue or relevant fact, prescribes that the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduc by any fact in issue or relevant fact and whether it was previous or subsequent thereto. The appellant in his examination under Section 313 Cr.P.C. categorically answered to question No. 6 that he showed the dead body to the Executive Magistrate, P.W.-6 because he saw it while ploughing. But surprisingly, he did not report the matter to any body, even though the dead body was found within his house premises. It may also be carefully noticed that admittedly the deceased who was his elder brothers wife, was residing with him with her children. Despite her missing from the day of Dewali, the fact of missing had not been reported by the appellant to any one nor even to the police. Motive could also be gathered from the answer given by the appellant to Q. No. 4 put to him under Section 313 Cr.P.C. to the effect that it was a fact that the deceased was of loose character. All these facts are relevant facts and as such the same are being sufficient to attribute to the involvement of the appellant in the crime. Medical evidence of P. W.-5 clearly disclosed that the dead body was partly decomposed containing multiple injuries and as per opinion of the doctor, approximate time of death was in between 10-14 days and such testimony fully corroborated with the evidence of P.W.-6 who found the dead body half decomposed after being dug ou

(24.) Now coming to extra-judicial confession made by the appellant, it would appear from appreciation of the evidence of P.Ws. 1, 2, 3 and 4 that all of them unequivocally deposed that the appellant in their presence as well as in the presence of the Magistrate, P.W.-6, admitted his guilt and told to the police i.e. P.W.8 that he killed Chiyanu who was his bou (elder brothers wife). P.W. 8, the I.O., expressly testified that on the next date when he went to the place of occurrence accompanying the appellant who informed him about the place of burial of the dead body, along with the Executive Magistrate, P.W.-6, the appellant admitted in presence of all the witnesses that he killed Chiyanu. The extra- judicial confession in question appeared to be genuine, clear and voluntary being not obtained by coercion, inducement or under pressure and the same can, hence, form sole basis of conviction.

(25.) As regards conviction and sentence of the appellant under Section 201 IPC, it is explicitly manifest from the material evidence on record that the appellant, after committing the murder of the deceased, caused the evidence disappeared by burying the dead body within his house premises without informing any body about her missing since Diwali till the date of 19.11.99 when the half decomposed body of Chiyanu was exhumed. Doctor, P.W.-6 also deposed that the death of the deceased was caused about 10 to 14 days ago.

(26.) Given facts and circumstances of the case at hand, we are of the considered view that the prosecution was wholly successful in proving its case against the appellant beyond all reasonable doubts.

(27.) In view of the above discussions, reasons and observations, we are inclined to accept and approve the views expressed by the learned Sessions Judge, Darrang, Mangaldoi in order to arrive at the findings of the impugned convictions and sentences. Consequently, we do not find any merit in this appeal to upset the impugned convictions and sentences.25 In the result, the criminal appeal fails and stands dismissed.