In the Fast Tract Court Lunglei Judicial District: Lunglei

IN THE FAST TRACT COURT LUNGLEI JUDICIAL DISTRICT: LUNGLEI. ………………………..

Regd.No. 367/11 Crl.Tr.No. 161/2011 u/s 302/468/341 IPC r/w 6(1)(a) IPP Rules Ref: Lawngtlai P/S/ Case.No. 132/94.

State of Mizoram. ………… Complainant Vrs Dawncheuva……………………..Accused.

Date of hearing……………………..18/2/2012

Date of Judgment &Order ……….. 8/3/2013

BEFORE

Lucy Lalrinthari, District & Sessions Judge

PRESENT

For the Prosecution - ZDL Pianmawia, P.P.

For the Defence - B.Gupta, Advocate

JUGEMENT & ORDER

1. The accused Dawncheuva S/o Sawnkhupa of Hmunnuam, Lawngtlai District, Mizoram has been facing trial in connection with Lawngtlai P/S/ Case No. 132/1994 u/s 302/468/34 IPC r/w 6(1)(a) IPP Rules Vide Crl.Tr. No.161/2009 the case having stood till today, the court delivers the following judgment.

2. The prosecution story of the case in brief is that on 23/11/1994, S.I. Thanawrha O/C Bungtlang out-post submitted FIR before the Officer-in- charge Lawngtlai P/S to the effect that on 19/11/1994 @ 5:00 PM he received a secret information from source that one Dawncheuva was seen at Bungtlang South on 19/11/94 while he was boarded at one truck. But his friend Kapkhanthanga who was also went to Bangladesh side along with him (Dawncheuva) was not seen. Source deeply suspected that Kapkhanthanga was killed by Dawncheuva and requested him to enquire about the matter. He along with parties rushed to Hmunnuam village to 2 enquire about the matter on 20/11/94 @ 5:00 AM. On reaching Hmunnuam village Dawncheuva and Zirnunsanga were arrested on suspicion ground and brought them to Bungtlang South O/P and thoroughly interrogated. Interrogation revealed that they had already killed/murdered Kapkhanthanga on 17/11/94 @ 4:00 AM in between Laitlang and Hmawngbuchhuah and the dead body was left at the spot of murdered. Accordingly, on the same day i.e 20/11/94, with his parties they left Bungtlang south PS and proceeded towards the P.O to recover the dead body along with suspected accused Dawncheuva and Zirnunsanga. At about 3:00 PM they reached Tuithumhnar village and found Zolalnghaka and Laldosanga were also suspected to involve in this case and apprehended them. After apprehension of the suspected persons they all left Tuithumhnar village towards Hmawngbuchhuah village. On reaching Hmawngbuchhuah they started searching for the dead body with the help of local villagers. At around 12:00 mid night in between Hmawngbuchhuah and Laitlang village the dead body of deceased Kapkhanthanga was recovered at the jungle about 2 kms distance from Hmawngbuchhuah village on being led and shown by the accused persons. The dead body was inquest and seizure was done and brought the dead body to Bungtlang South along with arrested persons. On reaching Bungtlang South Out Post, he seeks instruction from his superiors as to how about conducting PME since no doctor is available at Bungtlang South. The S.P. of Saiha was pleased to direct him to bury the dead body at Bungtlang South, subject to disinter the dead body for further conducting PME whenever strike of Government Doctor is called off, in other words till the Medical Doctor is available to conduct PME. On having further interrogation it is ascertained that Dawncheuva had cheated deceased Kapkhanthanga and brought to Bangladesh, to purchase ivory, etc. But Dawncheuva spend all the money i.e Rs 10,000/- which is borrowed from deceased Kapkhanthanga and without purchasing the articles and returned back to Mizoram. Since Dawncheuva could not recover the spended money, he decided to kill Kapkhanthanga and convinced his friends Laldosanga, Zolalnghaka and Zirnunsanga and had a meeting at Parva – III, regarding the killing of Kapkhanthanga. They all left Parva III towards Hmawngbuchhuah. On the way in between Laitlang and Hmawngbuchhuah at 4 AM on 17/11/1994 they killed/murdered decease Kapkhanthanga by using knife and left the dead body at the P.O. After reaching Hmunnuam village Dawncheuva wrote a forge letter to 3

Kamdohaua (friend of deceased Kapkhanthanga) in the name of Kapkhanthanga to give Rs 16,450/- to Dawncheuva (himself) in the name of deceased Kapkhanthanga. It is also revealed that Rs 330/- was taken from deceased Kapkhanthanga after he was murdered. During investigation the P/O was visited and drawn sketch map of the P.O and examined available witnesses and inquest over the dead body of deceased Kapkhanthanga. Since Gov’t Doctors Association called a strike when the incidence took place, the PME could not be done in time. But after a lapsed of one month the dead body was unearthed as per authority order and PME was conducted by authorized medical officer Dr. Vanlalauva of SHC Bungtlang South. All the accused persons were arrested and interrogated in which they disclosed that the main accused/ring leader was Dawncheuva in this case and the two others namely Zolalnghaka and Laldosanga had helped the main accused Dawncheuva at the time of killing Kapkhanthanga. One of them Zirnunsanga was found innocent one in this murdered case. And prayed the court to discharge from the liability of the charges sections and he may be turned as one of the prosecution witness. Recovered and seized the offensive weapon i.e knife and jungle rope and also seized wearing apparel of deceased Kapkhanthanga and also seized forge letter written by accused Dawncheuva in the name of deceased Kapkhanthanga was also seized and the same is being sent to FSL, Calcutta for comparison with the specimen handwriting of accused Dawncheuva. After receiving expert opinion supplementary charge sheet will be submitted. In course of investigation a prima facie case u/s 420/302/468 IPC was found well established against accused persons namely: Dawncheuva 23 yrs s/o Sawnkhupa of Rumma, Bethel Bangladesh- P/A Hmunnuam, Mizoram; Zolalnghaka 27 yrs s/o Neihtinkuala od Parva III and Laldosanga 22 yrs s/o Tlangtinkhupa of Suashung, Bangladesh. It is also found well established u/s 6(1)(a) IPP Rule/ 34 IPC against Dawncheuva and Laldosanga as they were from Bangladesh National and entered into Mizoram without having permission. Interrogation also revealed that they had a meeting at Parva III village and had a pre-planned before killing of deceased Kapkhanthanga. Due to the above circumstances, the honourable court is pray to add u/s 34 IPC and 6(1)(a) IPP Rule against the accused persons. All the accused persons were arrested and interrogated. In course of investigation a prima facie case u/s 420/302/468/34 IPC r/w 6(1)(a) IPP 4

Rules were found well-established and charge sheet was submitted to the court. Supplementary charge sheet was submitted later on, after receiving expert opinion on the forged letter seized from the possession of accused Dwncheuva. The expert who examined the letter opined that the person who wrote the blue enclosure writings stamped and marked as S7 to S17 also wrote the red enclosure writings similarly stamped and marked as Q1 and Q2. (Q1 and Q2 being the forged letter seized from accused Dawncheuva and the S7 to S14 being his specimen hand-writing sent to expert).

3. Case I/O submitted charge sheet against three accused persons namely Dawncheuva, Zolalnghaka and Laldosanga only. One of them Zirnunsang being discharged and turn into Prosecution witness. Two of the accused Laldosang and Zolalnghak absconded court after they were on bail before charges were framed against them. Later on they were declared dead and death Certificate were produced before the court and after verification from the concerned VCP, the court accepted the Death Certificte as genuine. Hence accused Dawncheuva only remained to face trial according to law. As per procedure u/s 207/208 of Cr.P.C all the police reports and its connected paper were supplied to the accused Dawncheuva. As the accused is a tribal without regular income advocate B. Gupta is appointed to defend the accused u/s 304 of Cr.P.C at the state’s expense.

4. At the time of consideration of the charge ld. prosecution and the ld. defence counsel Mr. B.Gupta were heard. After hearing both sides the ld trying Magistrate at that time framed charges u/s 302/468/34 IPC r/w 6(1)(a) IPP Rules against accused Dawnchueva. The charge u/s 420 IPC was dropped at the time of framing of charges as the then trying Magistrate did not find sufficient evidence to proceed on against the accused. The charges were was read over to him and explained in the language known to him to which he pleaded not guilty to the charge framed against him.

5. The instant case was tried before the ld Additional District Magistrate (judicial), Saiha till the stage of examination of the accused u/s 313 of Cr.P.C. All the prosecution evidences were taken before him. In the year 2008, due to the separation of the Judiciary from the Executive, 5

Mizoram was divided into two Judicial Districts only, namely Aizawl Judicial District and the Lunglei Judicial District. Lunglei Judicial district comprises of the Lunglei, Saiha and Lawngtlai Districts. Hence the instant case have been transfer to District and Sessions Judge, Lunglei Judicial District on 22/06/2009 vide order No.D.11035/3/2009/ D &SJ/78 dt 19.3.2009 at the stage of examination of the accused. The examination of the accused was done, and the accused denied of adducing his defence evidence. The then ld. District and Sessions Judge called for fresh argument from both sides. After along time, fresh arguments were submitted by both parties and the case is for Judgment.

6. In the instant case, the prosecution has to prove beyond reasonable doubt that victim deceased Kapkhanthang was murdered by accused Dawncheuva as per section 302 IPC and that the said seized document was forged for cheating u/s 468 IPC. In order to bring home the charge against the accused during the trial, prosecution examined 8 (eight) prosecution witnesses. After the prosecution evidence is closed, accused is examined u/s 313 of Cr.P.C, and the accused is asked if he wanted to adduce defense evidence. He does not want to adduce defense evidence.

7. The accused Dawncheuva and his co-accused person made confessional Statements before the Magistrate 1st Class which was duly recorded on 13.12.1994 by Magistrate Ist Class, Shri. B. Hlychho u/s 164 Cr.P.C as follows: Main Accused Dawncheuva’s confessional statement run as follows: “At Hmunnuam village Burmese national Kapa (Kapkhanthang deceased) and his friend put up themselves in my residence in the month of November 1994. Kapa requested me to go to Bangladesh and to procure Elephant Trunk for re-sold in other places. I told Kapa that my family would starve in my absence as I did not have a stock of rice. Kapa promised to feed my family during my absence, and presently gave 6 kgs of rice and Rs 100/- to my wife. Kapa then gave me Rs 15,000/- (Rupees fifteen thousand) for purchase of Elephant trunk. I then went to Bangladesh with my friend Laldomawia. But on reaching Bangladesh we could not find Elephant trunk, and instead I purchased Air gun at the rate of Rs 5000/- (rupees five thousand), Camera at Rs 2000/- (rupees two thousand), and tape recorder at Rs 2000/-(two thousand), I handed over all 6 these purchase to Kapa, the rest of the money to be given back to him at a later date. After a while, Kapa told that we would go back to Bangladesh to procure the said Elephant trunk, as he knew the place in Bangladesh where to procure the Elephant trunk. So in order to go to Bangladesh we want to Parva III village, there we stayed in the residence of Zirnunsanga who accompanied me to Bangladesh. Again, we could not procured the Elephant trunk at Bangladesh, so we came back to Parva III village, and stayed one night in the village. From Parva village, we proceeded to Hmawngbu village, we are five persons namely: Zirnunsanga, Zolalnghaka, Laldosanga Kapa, (deceased) and my self. On the way to Hmawngbu village we met one Chakma who told us that we lost our way. We then directed our way and reached Laitlang village. From then on we proceeded to Hmawngbu Village. On the way between Laitlang village and Hmawngbu village we rest in the mid- way. While resting on the mid-way I had a quarrel with Kapa (deceased) over the trade standard between India and Burma. I then got angry against Kapa, because during my absence, Kapa did not feed my family properly, and my wife left our village as they have nothing to eat. I was also drunk with liquor. And my anger took the better of me, I then bind the hands of Kapa behind his back, and let him to a place below the road; out of anger I hit his left and right of his head, I also stabbed him at his heart. Moreover, I again cut his throat. I make sure he is dead. I took his bag containing Rs 330/- and one cloth. With these money I bought Rakzu (locally made liquor) at Hmawngbu chhuah Village, and we all drink the liquor. On Sunday 20.11.1994, I and Zirnunsanga left Hmawngbu village to Hmunnuam village. After reaching my village Hmunnuam, after one day the police came and arrested us. I have nothing more to say”.

8. The confessional statement of accused Laldosanga of Parva III run as follows: “I was invited by Zolalnghaka to go to Bungtlang village to meet Shri. Sarma M.P.R.O. and Dawncheuva (accused) also asked me to go along with them to help him in leading some pigs. After reaching Tuisentlang village, we proceeded on along the valley and we met Chakmas. They told us that we have lost the way, we re-directed our way and reached Laitlang village. We had a drink (of liquor) bought with the money of deceased person. We then proceeded on to Hmawngbu village. 7

We took rest on the mid-way. There Dawncheuva (acused) and Burmese fellow (victim) had pick up quarrel over petty matter. Out of anger Dawncheuva bind the hands of Burmese behind his back without a struggle. He led him below the road, and lifted the Burmese shirt to block his eyesight and hit him with wooden stick on the left and right of his head. And stabbed him with knife on the Burmese chest. The Burmese fellow ask Dawncheuva to spare his life and not to give him back Rs 15000/- owed by Dawncheuva to him. But Dawncheuva said, “The time is up, you are too late”, and cut his throat with a knife. The Burmese fellow succumbed to death. Then, Dawncheuva took the Burmese’s bag (Ruksai) containing Rs 330/- and one cloth, we left the place and proceeded on to Hmawngbuchhuah and with the money we purchase Rakzu (Locally made liquor) and we had a drink. After that we proceeded to Bunghmun south village. There in the village Dawncheuva sold the Burmese cloth at Rs 200/- and bought Rakzu again. Then we proceede to Tuithumhnar, there myself and Zolalnghak were arrested by the police. I have nothing more to say.” 9. The confessional statement of Zirnunsanga of Parva III runs as follows: “Dawncheuva and the victim Burmese person stayed at our house in Parva III. Dawncheuva asked me to go along with him to Bangladesh promising to give me Rs 2000/- (two thousand) only. There we stayed only one night. After reaching Parva village, on the next morning, we started for Hmawngbu. On that day we were five in numners: namely; Burmese fellow, Dawncheuva, myself, Laldosanga and Zolalnghaka. On the way we met Chakmas who told us that we lost our way. After proceeding on the road we reached Laitlang village, there we drink some liquor. We started going on to Hmawngbu Village, on the way there arose some misunderstanding between Dawncheuva and the Burmese fellow regarding the trade standards of India and Burma. Then Dawncheuva bind the two hands of Burmese fellow behind his back and led him below the road, we followed along the four of us. He then pulled up his shirt to cover his eye sight. He then asked him to pray silently to his God. Dawncheuva then beat on the right and left head of the Burmese fellow with a stick. Then, he stabbed at his chest. At that point the Burmese fellow asked forgiveness saying he (accused) need not to pay back the barrowed money of Rs 15,000/- (Rupees fifteen thousand). But Dawncheuva cut at 8 the throat of the Burmese fellow and he died. Dawncheuva then took Rs 330/- and one cloth from the bag (Ruksai) of the deceased Burmese fellow. Then they reached Hmawngbu village and Dawncheuva sold the Burmese clothe at Rs 200/- and they drink liquor again bought with the Burmese money. They went to Tuithumhnar where Zolalnghaka and Laldosanga remained with their relatives. He and Dawncheuva proceeded to Hmunnuam village, he asked Dawncheuva for the money he promised to him, but, he did not give him, they were then arrested by the Police.

10. The confessional statement of Zolalnghaka of Parva III run as follows: “I had an intention to go to Bungtlang to meet Pu Sarma MPRO and Dawncheuva, knowing my intention asked me to help him in leading pigs also. I agreed an five of us namely Burmese fellow, Dawncheuva, Laldosanga, Zirnunsanga and myself proceeded towards Bungtlang. After reaching Tuisentlang village, we went along the valley and met Chakmas who told us that we lost our way. The, we directed our way towards Laitlang village village and had our meal with Rakzu bought by Burmese fellow who also accompanied us. We then proceeded on and rested awhile on the mid-way between Laitlang and Hmawngbu chhuah. There sprangup a quarrel between Dawncheuva and the Burmese fellow over petty things like the trade standard between Burmese and India. After that Dawncheuva got angry and bind Burmese fellows’ arms behind his back and he led him below the road, all of us follow him without knowing his intention. Dawncheuva let him sit on the convenient place. Dawncheuva pulled up the Burmese shirt over his face and block his eye sight. He then hit him on his left and right of his head with a stick. He asked him to pray to his God in silence and said the time is over and it is too late. Consequently, Dawncheuva stabbed at his chest and cut his throat and he died accordingly. Then, Dawncheva took the bag (Ruksai) of the Burmese fellow, inside the bag there were rs 330/- and one cloth which was taken by Dawncheuva. Then, we proceeded to Hmawngbu chhuah and had a drink of Rakzu (Locally made liquor), we then proceeded to Hmawngbu village where the cloth was sold at Rs 200/- and we again drink liquor. After that we reached Tuithumhnar and the police arrested them. 9

11. PW No.8, B. Hlychho, Magistrate 1st class deposed before the court and stated that on 12/12/1994 as endorsed by the ADM(J), he have recorded confessional statement of the accused Dawncheuva u/s 164 Cr.P.C. by fully complying the procedure as established by the said section. The accused has confessed that he actually killed one Kapa (Myanmar National) under the influence of liquor by stabbing and cutting at his throat with knife. Ext-9 is confessional statement and Ext-9 is confessional statement and Ext-9(a) is his signature.

12. P.W.No.6, Zirnunsanga is arrested on suspicion but turn into prosecution witnessed. He is the eye witnessed of the whole incident and corroborated the prosecution witnessed as a whole. He identified the accused Dawncheuva and stated that on 17/11/94 at about 4:00 PM Dawncheuva and his friends Kapkhanthanga were proceeding from Hmunnuam towards Parva and they put up themselves into his residence at Parva-III. The next morning Dawncheuva invited him to accompany them to Bangladesh to take Elephant Task and he promise him to pay him Rs 2000/- (Rupees two thousand). His friend Kapkhanthanga also promises him to pay Rs 500/- (Rupees five hundred) in case he accompany them to Bangladesh. As he was in need of money he followed them and halted the night at the residence of Headmen, Sunsong village, Bangladesh. But the Elephant tusk was not available then. Then, Laldosanga who was at Sunsong village was also invited to accompany them back to Mizoram and he agreed. Accordingly they returned back towards Parva on 18/11/94 and they reached Parva at about 7:00 PM and they all halt at Parva for one day. On that night Dawncheuva, Zolalnghaka and Laldosanga had a secret meeting at the residence of Tlawmlolala of Parva-III. As he wanted to attend the church service, he was not present at the meeting and do not even know what they have discussed. After the church service was over, he was looking for them but he could not found them and he returned home; they also came back home after him and they slept at his residence. The next day morning Dawncheuva told him to accompany them at Hmunnuam and he will pay him the money at Hmunnuam. After morning meal, they, all five of them left Parva-III for Hmunnuam; instead of going to Bungtlang road they directed towards Hmawngbu. They reached Laitlang at about 6:00 PM and without halting the night there they proceeded further toward Bungtlang ‘S’. At the Laitlang he over heard their intention to kill Kapkhanthanga from their talking and he told Kapkhanthanga to run away. But Kapkhanthanga had not run away. After proceeding further while they 10 were at between Laitlang and Hmawngbuchhuah at about 12 midnight Dawncheuva proposed to take rest in the jungle and they took rest. While they were there Dawncheuva was looking for jungle rope and gave it to Zolalnghaka to tie both the hands of Kapkhanthanga’s at his back side. They asked Kapkhanthanga to sit and gave him a chance for speech. Kapkhanthanga told him that he was very sorry for not running away at the time of telling him to runaway by him. After that Zolalnghaka had blind folded the eyes of Kapkhanthanga with towel and Dawncheuva stabbed Kapkhanthanga twice with knife on his chest. But it was not so much effective. Then Zolalnghaka slapped Kapkhanthanga on the left side of head with a piece of Laisua (a kind of tree) and Zolalnghaka again cut the throat of Kapkhanthanga with knife and Kapkhanthanga succumbed to his injuries. They then check the rack sack (green bag) of Kapkhanthanga and found that there is Rs 330/- cloth etc. Dawncheuva had taken the money and the cloth was taken along instead of using for covering the dead body of Kapkhanthanga. He then cut two leaves of Laisua and he covered the dead body of Kapkhanthanga with that leaves. The cloth was sold at Rs 200/- by Dawncheuva at Hmawngbu which they reached at early in the morning. After taking morning meal they proceeded further towards Tuithumhnar and from Tuithumhnar he and Dawncheuva had proceeded towards Bungtlang. Zolalnghaka and Laldosanga stayed behind at Tuithumhnar. They reached Bungtlang at about 3:00 PM. The next morning while he was having morning tea two police persons came to the place where he was put in and they asked him to meet O/C at Police Station. He accordingly accompanied them at Police Station and he saw that Dawncheuva was already there at the Police Station. The O/C interrogated them and he disclosed everything to him. The O/C asked him to lead and shown the dead body of Kapkhanthanga and he accordingly went to the place where the dead body was lying along with three police constables while proceeding towards the P/O the police had arrested Laldosanga and Zolalnghaka from Tuithumhnar and they sent them to Bungtlang through YMA. Whereas he and Police personnel proceeded to the P/O. They reached the P/O at about 11:00 PM and the police had taken the dead body with the help of YMA and brought it to Bungtlang. In his cross examination he did not deny the suggestions that he know Dawncheuva since the date of his invitation to him to accompany them at Bangladesh and that he was with them throughout the process of killing and that it was dark night and that when he was leaving Bungtlang 11 they were only four but at the spot they were so many persons he saw the dead body and that he had given statement to Police and that no accused persons were present at the time of taking the dead body. But he denied the suggestions that Dawncheuva and his friend had not a secret meeting at Parva and that he did not over heard their talking about their plan of killing Kapkhanthanga and that he had not stated to the police that Zolalnghaka had tied both the hand of Kapkhanthanga with rope and that he had not seen the act of killing and implicated them and that he had implicated the accused persons falsely.

13. The deposition of PW 9, fully corroborated the confessional statement given by the accused persons before the Magistrate. PW No. 9, H.Thanawrha S.I. of Police identified the accused and stated that he was the case I/O in the instant case. On 19/11/94 while he was O/C Bungtlang O/P at about 9:30 PM he got information from source that Dawncheuva and Kapkhanthanga had gone to Bangladesh since a long time. But, on that evening one Dawncheuva came by a truck alone, and the other Kapkhanthanga was not seen with him at that time. Next day on 20/11/94 at about 4:00 AM he got up, and he waked up his three constables namely; Piangthawna, Ramthanga and Lalvuana. They then proceeded towards Hmunnuam by a jeep. They reached Hmunnuam village at about 5 AM on the same day. They then directly went to Dawncheuva’s house. The door of the house was locked from within. They knocked the door but Dawnchueva did not answer. He then pulled opened the door and the said Dawncheuva was laying on elevated platform in the house. He was wearing a coat. On entering the house he called to him to get up. Dawncheuva was alone in his house when they entered. He asked him where Zirnunsanga was. He answered him he was not at Hmunnuam. Then they took Dawncheuva along with them to Bungtlang O/P. He then asked Dawncheuva at Bungtlang politely and carefully the where about of Zirnunsanga. He told him he was in Hmunnuam. On getting the information he then sent constable Ramthanga to go to Hmunnuam on bicycle to take Zirnunsanga. Zirnunsanga was brought to Bungtlang O/P. On their arrival he kept in the lock-up. Dawncheuva in the O/P lock-up and he took Zirnunsanga in his bedroom. He then politely interrogated Zirnunsanga, he then told that at about 4.00 AM on 17/11/94 in between Laitlang and Hmawngbuchhuah, Kapkhanthanga was killed by Dawncheuva and his friend Zolalnghaka in his very sight. He also asked him how they killed him. He told him that Dawncheuva stabbed him with a 12 knife on the chest and cut the neck. As ordered by Dawncheuva, Zolalnghaka and Laldosanga also tied up the hand of Kapkhanthanga and they also stabbed him. They then covered the body with leaves and they went away. He further said that they had taken meal at Hmawngvachhuah. After meal they then proceeded and halted the night at Hmawngbu village. The next day when they reached Tuithumhnar they left Laldosanga and Zolalnghaka. They then proceeded to Hmunnuam village. After he had taken such informations from Zirnunsanga and he lock-up the said Zirnunsanga, and took out Dawncheuva into his bedroom. He carefully interrogated him and he also told him how they killed Kapkhanthanga and he even told him where the body was hidden. He along with his constables and Dawncheuva and Zirnunsanga proceeded towards Hmawngbuchhuah. At Tuithumhnar they arrested Zolalnghaka and Laldosanga also whom they left at the custody of YLA Tuithumhnar. At about 12 midnight on 20/11/94 they reached the P/O having conducted inquest and having seized a knife, rope wearing apparels and he took the body to Hmawngbuchhuah. On 21/11/94 at about 11:00 AM they reached Bungtlang O/P with the arrested persons and the dead body. As per instruction from S.P he had the body buried at isolated place later to be disinterred if required. On 23/11/94 he took the accused persons to Lawngtlai and he submitted FIR and handed over the accused and seized articles to O/C Lawngtlai P/S. In the course of his investigation he discovered that the accused Dawncheuva sent a letter demanding repayment of money to Kamdohauva in the name of deceased Kapkhanthanga. He then seized the letter from the possession of Kamdohauva. The accused Dawncheuva admitted that he had borrowed Rs 15,000/- from the deceased Kapkhanthanga. Since he could no repaid the money he had killed him for fear of being reported to the Police. He further confessed that he had invited him to go to Bangladesh on the pretext of buying ivory and he perpetrated the crime at the convenience with other friends. He also took the specimen signature of Dawncheuva and sent to the expert for comparison with his alleged signature on the seized letter. The dead body was disinterred in presence of Magistrate on 22/12/94. PME was conducted by Dr. Lalauva of Bungtlang PHC. Having found a prima facie case against the accused he submitted charge sheet against the accused u/s 420/302/468/34 IPC. Ext-I is the complaint submitted by him and Ext-I(a) is his signature . Ext-4 & 4(1) are his seizure list and Ext-4(a)(b) and (c) are his signature. Ext-5 is his 13 charge sheet and Ext-5(a) is his signature. Ext-6 is inquest report and Ext- 6(a) is his signature. In his cross examination he duly affirmed that accused Zirsanga told him that Dawncheuva killed the deceased and accused Dawncheuva also told him he killed the deceased. And that VCP Zirmawia, Head Const. Thangliana, Cont. Lalvuana and Const. Ramthanga, the accused Dawncheuva and Zirnunsanga accompanied him to the P/O for the recovery of the dead body. And that at the time of PME the dead body was being decomposed.

14. The statement of PW.No. 1, K.Zirmawia also corroborated the Pws statements given above. PW 1 above identified the accused persons and stated that he was VCP of Bungtlang at the relevant time. On 20/11/94 , he was at Bungtlang. On that day O/C Bungtlang P.S had arrested Dawncheuva and Zirsanga on suspicion. As he was the VCP Bungtlang village, at that time, O/C, Bungtlang called him while the O/C interrogated and doing bodily search and he recovered one letter and seized it. He being witnessed to that he gave his signature as a witness, Ext. 4(1)(b) is his signature. After interrogation, deceased Kapkhanthang’s body was taken by the police on being led and shown by the accused Dawncheuva . After the dead body reached the Bungtlang P.S, O/C conducted inquest over the dead body in his presence and he gave his signature, as witness. Exht. 6(d) is his signature. Again one knife and and the wearing garment of deceased were also seized in his presence. Exht. 4(b) is his signature. The material exhibits shown today are the actual seized articles seized in his presence. In his cross examination he did not deny the suggestions that he know the accused even before; but never seen deceased and accused together before. That the dead body was recovered on being led and shown by accused Dawncheuva. That he had seen the inquest at the nearby and it was badly smelling and starting decomposition. And that he had not reached the P/O and the party who had gone to the P.O. includes Pu Thangliana, Lalvuana and Hunthanga including accused Zirsanga and civilian.

15. The depositions of Pw 4 again corroborated the evidence given by the Pws above. PW No.4, K.Lalvuana identified accused Dawncheuva and he stated that on 19/11/94 while he was at Bungtlang P/S at about 10:00 PM, O/C P.S Bungtlang received information about the alleged killing. 14

The O/C detailed them to arrest and searches the probable accused persons. Accordingly he along with other police persons started on the same night for Hmunnuam and arrested Dawncheuva and Zirnunsanga and they came back to Bungtlang P/S . On interrogation it is found that they have actually committed murdered and they again started for the dead body and they took Zirnunsanga along with them. On the way other accused persons namely, Zolalnghaka and Laldosanga were also arrested at Tuithumhnar and they put the two persons under the safe custody of YLA Tuithumhnar. They then proceeded further for the place of occurrence. The dead body was recovered at the jungle about 3 kms from Hmawngbuchhuah towards Laitlang on being led and shown by Zirnunsanga. O/C conducted inquest over the dead body of Kapkhanthanga on being identified by Kamdolal. He gave his signature on the inquest report. Then the dead body was carried towards Bungtlang with the help of local persons and reached Bungtlang on 21/11/94. The knife was recovered at the P/O and the rope for which the legs of deceased was tied with was also recovered. The said articles were seized along with wearing garment of deceased. He gave his signature as seizure witness. Ext-IV(c) is his signature. After that they handed over the dead body to YLA Bungtlang for burial. Again on 2/12/95 the dead body was exhumed for post mortem examination. He was also present at that time. In his cross examination he did not deny the suggestions that he had been posted at Bungtlang w.e.f September, 1992 and that he had never seen the accused person and deceased together; and that he do not know the name and address of deceased before, and that the flesh were intact but all with black colour and that the dead body was smelling. But he denied the suggestions that the accused has not confessed before Police at the interrogation and that the dead body was totally decomposed and that he had falsely implicated.

16. PW No 2, C.T.Buma identified all the accused persons but Dawncheuva alone is present and stated that on 20/11/94 he was at Bungtlang. On that day he was called by O/C Bungtlang P/S to go to Thana. Accordingly he went to recovery of one letter from Dawncheuva and he requests him to a witness of the seizure. Then he gave his signature as witness. Ext-IV (1)(c) is his signature. In his cross examination he did not deny the suggestions that other accused excepting Dawncheuva are not present in the court and that he do 15 not know the deceased Kapkhanthanga before and that he had not seen the act of seizure.

17. PW No 5, Thangliana Head constable of Police stated that on 20/11/94 while he was at Bungtlang Out-post he along with other preceded to the place of occurrence. On reaching they found the dead body in being led and shown by Zirnunsanga. O/C P.S. Bungtlang conducted inquest over the dead body of Kapkhanthanga in his presence. He gave his signature as one of the witnesses of inquest report. In his cross examination he did not deny the suggestions that the dead body was identified by O/C and that he had not seen deceased together with accused before. But he denied the suggestions that the dead body was not shown to as by Zirnunsanga and that he had falsely implicated them.

18. PW No.7, Dr. Vanlalauva stated that he was working as Medical Officer at thew relevant time. During this period he conducted PME of deceased Kapkhanthanga S/o Kapzahngo Paihte after the dead body was exhumed. The examination was conducted on 22/12/1994. The dead body was decomposed except the boney structure which was intact. Due to this decomposition the extent of injury or otherwise could not be ascertained. Ext-VII is his PME report and Ext-VIII (a) is his signature. In his cross examination he did not deny the suggestions that No fracture was seen in the bones and that flesh already decomposed and only boney structure remains.

19. PW No.8, B. Hlychho, Ex-E.A.C stated that on 12/12/1994 as instructed by the ADM(J), he recorded confessional statement of the accused Dawncheuva u/s 164 Cr.P.C. The accused has confessed that he actually killed one Kapa (Myanmar National) under the influence of liquor by stabbing and cutting at his throat with knife. Ext-9 is confessional statement and Ext-9 is confessional statement and Ext-9 (a) is his signature. In his cross examination he did not deny the suggestions that in order to ascertain voluntaries of the accused and he put him question as to whether he really cut the deceased and that when he was recording the confession of the accused, police personnel were also present in the court and that before recording of the confession to the accused he administered oath to the accused so that he can speak the truth. But he denied the 16 suggestion that he had not followed the mandatory principle as laid down u/s 164 Cr.P.C.

20. The accused Dawncheuva was examined u/s 313 I.P.C and the following are the questions and answers:- Q1. According to evidence of P.W.No.6 Zirnunsanga, on 18.11.94, Kapkhanthanga and you went to Bangladesh to collect Elephant tusk and you promised him to pay Rs.500/-. Is it correct? Ans: Yes, it is correct.

Q2. Since you did not find elephant task. You returned to Mizoram and you asked Laldosanga to accompany you. You halted at Parva. On the night, you, Zolalnghaka and Laldosanga had secret meeting at the residence of Tlomlolala. Is it correct? Ans: He is giving false evidence.

Q3 You with the others left for Hmawngbu and when you reach Lawitlang. You whispered to others your intention of killing Kapkhanthang and Zirnunsanga overheard that. What do you have to say? Ans: He is giving false evidence.

Q4. You and Zolalnghaka tied Kapkhanthanga in the jungle with a rope. He was blind folded. You then stabbed him on his chest with a knife. What do you have to say? Ans: He is giving false evidence.

Q5. He did not die. Zolalnghaka stabbed him on the head. You then cut his throat. What do you have to say? Ans: He is giving false evidence.

Q6. You confessed before B.Hlychho, as taken by him, that you beat, stabbed and cut the throat of Kapkhanthang in the jungle as a retaliation that he did to members of your family. What do you have to say? Ans: I did not know whether I gave statement to B.Hlychho. Q7. It is in evidence that you involve in this incident?

Ans: I was there in the incident when it takes place. Q8. Do you want to adduce defence evidence? Ans: No. 17

Q8. Do you want to say any other thing before the court? Ans: No.

21. The object and purpose of section 313 Cr.P.C is to afford an opportunity to the accused person personally to explain any circumstances appearing in the evidence against him at the trial so that the accused may get an opportunity to explain the circumstances appearing against him during such trial. Section 313 Cr. PC incorporates basic procedural jurisprudence that Trial Judge shall furnish the opportunity to the accused person to explain the facts and circumstances appearing against him in the evidence and thus the opportunity to him to show his innocence and to tell the court what he may be desirous of stating. In the instant case, no circumstances appearing against the accused was at all put to him giving an opportunity to the accused person to explain and to make his own statement. But the accused instead of explaining the circumstances against him simply stated that it was false evidence. He himself did not deny that he was present when the incident took place but does not explain his presence and what his role was at the time when the incident took place. The evidences against the accused person adduced by the prosecutions are many, and the accused should have explained his innocence at the time of examination. The accused stated that he was present at the P.O at the time of occurrence, then he should have explained that why he is present at the spot of occurrence, what he is doing, what is his role at the P.O, and he should have explained his innocence, if he is innocent. Instead he has not explained his innocence, but confirmed has his presence at the place of occurrence and simply said they are giving false evidence. He has not explained in what way the prosecution evidence was false evidence. By simply saying he is present but had nothing to give his innocence. He also did not state who is responsible for the killing of deceased Kapkhanthanga. Hence, it is considered that the accused had nothing to give by way of defence, which would naturally would point to his guilt and that the prosecution witnesses are speaking the truth.

22. The ld. P.P Mr. ZDL Pianmawia submitted that there is one eye witness in this case. PW No.6, Zirnunsanga accompanied the team of accused all along down to Bangladesh and on their return to Mizoram. He was examined thoroughly. He stated that the hands of the victim were tied with plant rope. The accused stabbed the victim twice on his chest. The 18 other accused Zolalnghaka beat him on his head. Thereafter, the accused cut his throat. Inquest was conducted by S.I.Thanawrha (PW No.9). He found cut mark on the throat of the victim. The dead body was buried without sending it for medical examination. PME was done at as later date i.e 22/12/2012. The flesh was decomposed and as such, medical evidence is not much help for the case. That P.W.No. 1 and 4 are among the persons accompanying P.W.No.9 (Case I.O) in recovering the dead body. From their evidences, it is ascertained that the accused Dawncheuva led them to the P.O. where the dead body of the victim was left. It is leading recovery and strong evidence against the accused. It indicates that the accused left the dead body after he killed. The dead body was not buried but as stated by P.W.No. 6, it was left after it was covered with leaves of Laisua. That the accused Dawncheuva confessed before Magistrate 1st Class. The accused confessed that he had beaten the victim after tying his hands with rope. He stabbed the victim on his heart and he also incised his throat. The accused did not retract his confessional statement. There is nothing to show the unreliability of the confessional statement. Therefore, it is admissible in evidence. That three letters dt.17.11.1994 was seized from the pocket of the accused Dawncheuva. The incidence happened on 17/11/1994. All letters were purported to be sent to Hauva (Kamdohauva) appeared to be written from Parva. The specimen signatures of the accused were sent to Forensic Expert and the result showed that the letters were written by the accused Dawncheuva. This is a clear indication that the accused is guilty of killing the victim. That on seeing evidence as a whole, it is abundantly clear that the accused killed the victim with lame accused. It is a clear case of murder. The accused deserves to be punished. All evidence on records and facts brought out by prosecution witnesses pointed towards the guilt of the accused Dawncheuva beyond reasonable doubt. The fact that the death body of Kapthankhang was recovered on being led by the accused after they admitted to have murdered him proves the crime beyond reasonable doubt. The injury which caused the death of Kapkhanthang as found by the case I/O in inquest report corroborated with the evidence of PW 6 Zirnunsanga, which was also corroborated by the confessional statement of the two accused persons namely Dawncheuva and Laldosanga recorded before the magistrate 1st Class. The fact that Dawncheuva, Zolalnghaka and Laldosanga has a secret meeting for preparing to commit murder of 19 deceased Kapkhanthanga and of tying his hands and blindfolding him is a proof of preparation for cold blooded murder. The fact that the confessional statements given before the Magistrate 1st Class by all the four persons corroborated each other is also enough to arrive at the guilt of the accused persons. The eye-witness evidence of Pw 6 Zirnunsanga is corroborated by all the other prosecution evidence. In addition, the said accused has written a letter addressing Kamdohauva, friend of the deceased to appear to supposedly written by deceased Kapkhanthanga to commit cheating. The fact that the said letters were written by accused Dawncheuva was proved by Expert thereby confirming the accused Dawncheuva committed the offence of u/s 468 of the IPC. And hence, the accused Dawncheuva be convicted under the said section of law. The accused is also a foreigner and as per his own admission he is to be convicted u/s 6(1) PP rules.

23. On the other hand the learned counsel Mr. B.Gupta, Advocate submitted written argument as follows: - Prosecution in the instant case has completely failed to establish the alleged offence conclusively beyond doubt. In support of his contention stated above, he submits his points of defence as under: In fact, as per evidence on record, there is not witness direct or indirect pointing to the guilt of the accused. PW No.1, K.Zirmawia stated in his deposition before the Hon’ble Court that the accused Dawncheuva had not accompanied the person who took the dead body. Apart from this there is no evidence against the accused. PW No.8, B.Hlycho, Magistrate who recorded the confessional statement of accused Dawncheuva, admitted in cross examination saying ‘it is a fact that when I was recording the confession of the accused Police persons were also present in the court, he also further admitted that before recording of the confession I administered oaths to the accused’ so that he can speak the truth. From the confessional statement as stated above, it is clear that mandatory provisions as laid down u/s 164 Cr.P.C. are not followed by the learned Magistrate while recording the confessional statement. it is very much clear that as per provision u/s 164 Cr.P.C. accused must be free from any undue influence specially police personnel. Hon’ble Magistrate clearly admitted that Police persons were present at the time of recording the confession. Because above two factors confessional statement has been rendered in-admissible in evidence and for this same can be discarded while 20 evaluating the merit of the case. Further it is submitted to your honour that administering oath to the accused before recording his confessional statement is an illegality and the confessional statement loses its evidentiary value. And he therefore, submitted that in view of the facts stated above the accused may be acquitted from the liability of the charged section.

24. In law it is always open to the court to convict an accused on his confession itself even if he had retracted it at a later stage. Where a confession is duly recorded with all formalities prescribed under the law, a conviction based on the confession will be well founded. Nevertheless, usually court requires some corroboration to the confessional statement before convicting an accused person on his confessional statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case? In Modi Ganga Vs State of Orissa reported in 1981, Cr. Lj.337 at page 339 the Supreme Court held that, “It is now well settled that in order to sustain a conviction of the basis of a confessional statement it is sufficient that the genera trend of the confession is substantiated by some evidence which would tally with the contents of the confession. And general corroboration is sufficient in the instant case the accused did not retract his confession till end. And the evidence adduced by the prosecution fully corroborated the confessional statement of the accused person. In the instant case the accused did not retract his confession till the end. He was assisted by the most senior advocate Mr.B.Gupta, but did not retract his confession. His confessional statement is corroborated by all the other three accused persons in their confessional statement. In addition to this, the evidence given by PW no 6 and Pw No 9 fully corroborate the confessional statement of the accused. All other PWs pointed and corroborated the evidence of Pw No 9 and 6. I believed that the prosecution witnesses are trustworthy, and the cross-examination had not shaken their dispositions. I believed that they had spoken the truth. The incriminating facts all pointed to the guilt of the accused person. On the facts pointed out above in discussion coupled with the rulings of higher courts quoted above, I am therefore constrained to hold that the contention of the ld. defense counsel that the confessional statement of accused person cannot be accepted and there is no circumstantial evidence 21 against his client is not truthful. I find no force in his argument and is set aside.

25. The argument put forward by the ld.defene counsel can be summed up on the fact that the confessional statement of the accused as recorded by the Magistrate 1st Class is contrary to the principle of section164 Cr.P.C as the Magistrate put oath to the accused and there are police personnel on his court. On perusal of the case record, the Magistrate 1st Class recording the confessional statement of the accused put the following questions to the accused persons before recording their confessional statements:- Q: Do you know that I am not a Police Officer but a Magistrate? Ans: Yes. Q: Do you know that you are not bound to make a confession? Ans: Yes Q: Do you know that if you make a confession that will be used as evidence against you Ans: Yes. Q: Do you know that you should not say anything because others tell you to say, but you are at liberty to say on your own? Ans: Do you know that you should not say anything which is untrue? Ans: Yes.

26. That the said Magistrate at the end of the confessional statement written, “I have explained to Dawncheuva that he is not bound to mak a confession and that, if he does so, any confession he may make, may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and was read over to the persons making it and admitted by him to be correct, and it contains a full and true account of the statement made by him”. And he gave his signature at the end of it. It is abundantly clear that the Magistrate who recorded the confessional statement of the accused had followed the mandatory provisions of section 164 of Cr.P.C by affirming before the accused that he is a Magistrate not a Police, and that he is not bound to confess and that he is not to speak what others tell him, but to speak the truth. And whatever he might have stated would be used against him in evidence. Even then, the accused confessed his guilt that he killed the deceased Kapkhanthang by blindfolding him and by tying his hands behind him. When the deceased 22 body was recovered by the police, not only the hand of the deceased was bounded but his legs as well were bounded by a jungle rope, the jungle rope was also seized. Even if the accused had not made any confession before the ld. Magistrate, there is enough evidence to prove the guilt of the accused. As per the evidence on record, there was an eye-witness to the whole incident . Pw no 6 Zirnunsanga bounded the hands of the deceased at his back and led him below the road and blind folded him and let him say his prayers. When the deceased grasp the situation he prayed the accused to spare his life and he would forgive Rs 15000/- the accused borrowed from him, and he need not to give him back the money. But the accused killed him any way by hitting him on his head by a stick and then stabbing him with a knife at his chest and cutting his throat to make sure he is dead. Not only Pw 6 saw the incident, the other two accused persons namely Zolalnghaka and Laldosanga were also present at the time of the incident and confessed before the Magistrate which was recoded u/s 164 of Cr.P.C. The two accused persons were declared death during the time of trial. Still, the Magistrate who recorded their confessional statement gave his testimony before the court. The most interest thing is that the accused Dawncheuva, the other accused two persons Laldonghaka and Laldosanga and also Zirnunsanga (Pw 6), who were all present at the spot, say the same thing, That accused bounded the hands of the deceased, let him below the road and blind folded him, let him say his prayers and beat him with a stick on his head and then stabbed him on the chest and finally cut his throat. They all stated that the deceased prayed to accused to spare his life and he forgave the borrowed money of Rs 15000/- and the accused need not to give back the money. They also said that the accused replied, time is up, it is too late and he then killed him. The testimony of all the accused corroborated each other, which also corroborated the confessional statement of the accused himself. Moreover, after accused Dawncheuva and Zirsanga were arrested they are interrogated by the case I/O, at that time both accused disclosed the accused was killed and his death body was at the P.O, covered by leaves. At the time of recovery of the deadbody it was exactly as stated by the accused persons. Though the two accused persons died and could not be present at the court, but pw No 6 and the accused could be produced at the court and hence, the evidence of the prosecution is reliable and can be trusted. PW 6 saw with his own eyes how the accused Dawncheuva killed 23 the deceased Kapkhanthang. The main reason being that the accused Dawncheuva borrowed Rs 15000/- from the deceased and could not pay him back, and wanted to eliminate him.

27. Now that the ld.defence counsel contended that since the Magistrate who recorded the statement of the accused put on oath the accused and there were Police personnel in the court, the confessional statement of the accused can not be accepted. The most important thing about the recoding of the confessional u/s 164 Cr.P.C is that the accused should be free and his confession should be voluntary and there should be no inducement. The Magistrate who recorded the confessional statement should be satisfied that the accused confessed voluntarily. In the instant case, the Magistrate under his signature expressed that he was convinced that the accused confessed voluntarily. In law it is always open to the court to convict an accused on his confession itself even if he had retracted it at a later stage. Where a confession is duly recorded with all formalities prescribed under the law, a conviction based on the confession will be well founded. Nevertheless, usually court requires some corroboration to the confessional statement before convicting an accused person on his confessional statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case? On the facts pointed out above in discussion coupled with the rulings of higher courts quoted above, I am therefore constrained to hold that the contention of the ld. defense counsel that the confessional statement of accused person are without corroboration and there is no circumstantial evidence against his client is not truthful. I find no force in his argument and is set aside. There are series of judgments from the Hon’ble Supreme Court holding that conviction of a person can be recorded on the sole basis of confessional statement of the accused, provided it has not been retracted promptly and that such statements has been given voluntarily and it inspires the confidence of the court. Without multiplying authorities in this regard, the observations of their Lordships of the Apex Court made in the following cases would be sufficient to sense the values, impact and significance of confessional statements of an accused in a criminal trial. In the case of State of Rajasthan – vs- Raja Ram; reported in (2003) 8 SCC 180, The Hon’ble Supreme Court has highlighted the inherent strength and 24 value of such a statement in the following words:- “….The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or the voluntariness of the confession, the Court may refused to act upon the confession, even it is admissible in evidence. One important question , in regard to which the court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the 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 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 highest credit, because it is presumed to flow from the highest sense of guilt. [See R.V Warwickshall: (1783) Lesch 263).

28. In the instant case, though the ld counsel contended that there is police on the court, but it does not mean that the police who is in the court have any influence on the accused. It might be that the police was in the court with some other business and in connection with some other things. There was nothing said by the accused in his examination that he was in any way prejudice by the police, or that he was threaten or induced to make a confession. The magistrate put the statutory warnings to the accused before hand, and then, the accused confessed before him. If the Magistrate has made it that in his opinion the accused was confessing voluntarily. The best thing is that there should not be any police personnel around the accused when confession of an accused is recorded, in some cases, in remote region of Saiha in Mizoram in the year 1994 when the confession was recorded, there might not be consciousness in the court room that, there should not be any police personnel in the court room while confession of the accused was recorded. In my considered opinion, the simple presence of the police personnel would not prejudice the accused as the Magistrate had done his best to follow the principle of section 164 of Cr.P.C. 25

The said Magistrate who recorded the confessional statement of the accused persons put all the searching questions to the accused persons before recording their confessional statement. No doubt the format has been prescribed to read the mind of the accused and to ascertain that the indictable statement is not being given under duress, threat or influence of any person and the guidelines should be followed in letter and spirit. However, all and sundry infractions or breach of the format will not render the statement as inadmissible evidence and the conviction can be recorded on the basis of it, so long it conforms to the statutory provision of section 24 of the Indian Evidence Act, 1872 and does not attract or fall within the purview of sections 25 and 26 thereof. I have carefully scanned the confessional statement of the accused persons and notice that the Judicial Magistrate took adequate care to ascertain that the statement was not given under threat or duress of the police officers. All the relevant queries incorporated in the High Court circular, which was in vogue at the relevant time, were made in two stages, before proceeding to record the statement. The statement is followed by a certificate that the confessions were made voluntarily and it contains a full and true account of the statements made by the accused. Under such circumstances, I hold that the Magistrate though put an oath to the accused but that did not prejudice the accused as he himself confessed voluntarily, that could be used as incriminating evidence. I am also of the view that the confessional statement alone is sufficient to affirm the conviction, but in addition to the said indictable statement there are numbers of additional incriminating evidences, which reinforce the confessional statement, like recovery of the dead body and other prosecution evidences as stated above. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confession of guilt, if clearly proved, are among the most effectual proofs in law”. Again, in the case of State (NCT of Delhi) –vs- Navjot Siddhu; reported (2005) 11 SCC 600, the Apex Court reiterated the evidentiary value of confessional statements. The relevant observations of Their Lordships are as below:-“32. As to what should be the legal approach of the Court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarized in Bharat vs. State of U.P. [1971 (3) SCC 950] Hidayatullah, C.J., speaking for a three-Judge Bench observed thus: 26

“Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after-thought and that the earlier statement was true…..” The aforesaid authorities were again followed in the case of Bishnu Prasad Sinha-vs- State of Assam, reported in 2008 2 GLT (SC 1). Wherein also, the Apex Court reiterated the legal position of confessional statements in the following language: “31. A confessional statement, as is well known, is admissible in evidence. It is relevant fact. The court may rely thereupon, if it is voluntarily given. It may also form the basis of the conviction, wherefore the court may only have to satisfy itself in regard to voluntariness and truthfulness thereof and in given cases, some corroboration thereof. A confession which is not retracted even at a later stage of the trial and even accepted by the accused in his examination under section 313 of the code, in our considered opinion, can be fully relied upon”.

29. In view of the importance and sanctity attached to the confessional statements of the accused, the legislature thought it proper to put certain preconditions for recording confessional statements. The requirements of law have been incorporated in Section 164 Cr.P.C. in the line of statutory requirements, the Gauhati High Court has also issued certain guidelines to put searching questions to the accused persons to ascertain that such statements are given voluntarily and not under threat or influence from any quarter. At the same time, there are plethora of judgments from the Apex Court and various High Courts, imploring upon the courts to ascertain that the confessional statement is voluntary in real sense and that it contains a true and full account of the incident, before making it the sole basis for conviction. The safeguards and protection to be taken by Judicial Magistrates before recording confessional statements have been discussed 27 in various judgments and a few of them have been considered by this court in the case of Kanhailal Guwalla (supra) which are reproduced below:- Sarwan Singh Rattan Singh v. State of Punjab, 1957 SCR 953 “There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded.

30. As regards the submission of the learned counsel that accused Dawncheuva was not taken to the PO at the time of recovery of the dead body. PW No 9 the case I/O stated that accused Dawncheuva and Zirnunsanga were amongst the other party present at the time of recovery of the dead body. Almost all the prosecution witnesses as well as the investigating officers have deposed that the dead-body of deceased Kapkhanthang was recovered on the basis of the admission of accused Dawncheu and Zirnunsanga, accused Zirnunsanga led them to the spot of the P.O where the dead body was lying exactly as confessed and admitted by the accused persons. The four persons making confessional statement stated the same thing that deceased Kapkhanthang was killed by Dawncheuva on the roadside between Laitlang village and Hmawngbu village at about midnight. These four persons saw the act of killing and they all stated the manner in which the deceased was killed which was corroborated by the inquest report of the case I/O. Unfortunately, at that period of time, the Govt. Medical Doctors called a strike, and nobody was present to conduct post mortem examination of the dead body of Kapkhanthang. As per instruction from the SP of the local area, the dead body was buried at a lonely spot to be exhumed as soon as the Medical Doctor was available to conduct PME. However, when the Medical Doctor was available, the dead body was exhumed, the dead body was decomposed and the structural bone 28 was only discernable. There were five people present when they recovered the dead body namely PW no 1, 4, 5, 6 and 9 along with accused Dawncheuva . When the aforesaid incriminating evidence was put to the accused, while recording his statement under section 313 Cr.P.C, the accused simply replied that their testimonies were false. However, no explanation was offered as to how the deceased was found death with such injuries. In his confessional statement also, the accused has admitted the fact that he had assaulted the deceased with a knife and a stick and he bind his arms on his back and blind folded the deceased. In this way, the incriminating circumstance of recovery of the dead body was proved. In his confessional statement the accused has given vivid description as to how he was entertaining enmity with the deceased. According to the accused, he was angry with the deceased as the deceased did not look after his family as promised and his wife left his house due to dearth of food. According to the other PWs the accused borrowed money from the deceased amounting to Rs 15000/- and he could not pay back the money and so eliminate him on the pretext of having argument on a petty matter as to the standards of trade between India and Burma. According to Pws 6, it was well-planned, the accused and his two friends had a secret meeting on the previous night and planed to kill the deceased due to the borrowed money by the accused from the deceased. PW 6 was all along remained with the accused and the deceased with the other two friends on their way to Bangladesh and on their returned. PW no 9 case I/O corroborated the statements of Pw No 6, and the confessional statement of the other two accused persons namely Laldosanga and Zolalnghaka also fully corroborated the statement of Pw No 6 and Pw no 9. Their deposition corroborates the accused’s version that he killed the deceased due to his anger. The prosecution is also relying upon the evidence of recovery of a “knife and forged letter”, allegedly written by the accused Dawncheuva to the friend of the deceased forging the signature of the deceased. It is the prosecution case that as per the opinion of the expert of forensic that the seized letter from the person of accused Dawncheuva allegedly written in the name of deceased Kaplianthang requesting some amount of money was written by accused Dawncheva. 29

According to the learned Public Prosecutor when the evidence of recovery of knife from the spot at the instance of the accused was put to the accused and he did not deny the said fact.

31. Section 27 of the Evidence Act is considered to be an exception to section 25 and 26. Section 25 stipulates that no confession made to a police Officer can be proved against an accused. Section 26 is also an identical provision. However, certain information received from accused during investigation and which ultimately leads to recovery of certain facts would be admissible in evidence u/s 27 of the Evidence Act. For ready reference, Section 27 is reproduced below: “27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it mounts to a confession or not, as relates distinctly to the fact therby discovered, may be proved”. A bare reading of section 27 shows that only one condition is mandatory before taking into consideration the recovery of any material evidence of the offence at the instance of the accused is that the accused must be in the custody of a Police Officer. In the instant case the accused persons Dawncheuva and Zirnunsanga were arrested, and n their disclosure, the dead body was recovered. 32. Hence I found the accused Dawncheuva guilty of committing offence u/s 302 /468 of IPC, the prosecution witnesses have spoken the truth, and they are reliable. The prosecution can proved the guilt of the accused Dawncheuva beyond a shadow of doubt. Hence I have no hesitation in my mind to convict accused Dawncheuva u/s 302/468 IPC, which I hereby do. On the question of sentence as per section 235(2) of CR.P.C the accused and his counsel is heard. The ld. PP Mr.ZDL Pianmawia is also heard. The ld. counsel for the accused Mr. B.Gupta submitted that the accused had an old age father and is in ill-health, besides, the case is kept pending for so long hence, maximum leniency may be given to him. 30

On the other hand the ld. P.P. Mr. ZDL Pianmawia submitted that there are two options in section 302 IPC that is death or life imprisonment. And since it is not one of the rarest case, life imprisonment may be given to the accused. After hearing both parties, the accused had absconded from court so long, as he had fled to Burma to look after his parents. Repeated warrant was issued against him. After a lapse of more than ten years he was arrested on the strength of W.A. issued against him. Hence, the accused himself is responsible for the long pending of the case. Hence, I am satisfied that the crime committed is not one of the rarest cases, and death penalty is not called for. Hence I sentence accused Dawncheuva to undergo Rigorous imprisonment for life with a fine of Rs 3000/- (three thousand) only in default of payment of fine another 3 months S.I.

Seized article of knife and jungle rope be destroyed immediately.

Give copy of this order to all concern.

Given under my hand and seal of this court today the 8th of March 2012.

Sd/- LUCY LALRINTHARI District & Sessions Judge, Lunglei Judicial District : Lunglei.

Memo.No.______: Dated Lunglei, 8th of March 2013 Copy to :-

1. Accused Dawncheuva. 2. Public Prosecutor, Lunglei. 3. Mr.B.Gupta, Advocate, Lunglei. 4. Superintendent, District, Jail, Lunglei. 5. P.I. G.R. Branch, Lunglei Court. 6. O.C. Lunglei P.S and O/C Lawngtlai P/S 7. Case record.

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