Gauhati High Court
Sibeswar Maslai vs The State Of Assam on 24 July, 2026
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/19
GAHC010012572018
2026:GAU-AS:10147
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/6/2018
SIBESWAR MASLAI
S/O. LT. SUJAI MASLAI, VILL. DABSAL, P.S. BAITHALANGSO, KARBI-
ANGLONG.
VERSUS
THE STATE OF ASSAM
GHC, GHY.
2:INFORMANT
INFORMAN
Advocate for the Petitioner : MR. S K TALUKDAR, AMICUS CURIAE,
Advocate for the Respondent : MS. A. BEGUM, ADDL. P.P., ASSAM.
:::BEFORE:::
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE RAJESH MAZUMDARDate on which judgment is reserved : 21.07.2026
Date of pronouncement of judgment : 24.07.2026
Whether the pronouncement is of the : N/A
operative part of the judgment ?
Whether the full judgment has been : Yes
pronounced?
Page No.# 2/19
JUDGMENT & ORDER (CAV)
(M. Zothankhuma, J)
1. Heard Mr. S.K. Talukdar, learned Amicus Curiae appearing for the
appellant and Ms. A. Begum, learned Addl. Public Prosecutor, Assam, appearing
for the State.
2. This is an appeal against the impugned Judgment dated 04/12/2017
passed by the learned Sessions Judge, Diphu, Karbi Anglong in Sessions Case
No.18/2007, by which the appellant has been convicted under Section 302 IPC
and Section 436 IPC. The appellant was accordingly sentenced to undergo
Rigorous Imprisonment for life with a fine of Rs.25,000/-, in default, to undergo
Rigorous Imprisonment for 2(two) years under Section 302 IPC for each of the
three murdered persons. He was also sentenced to undergo Rigorous
Imprisonment for 5 years with a fine of Rs.25,000/-, in default, to undergo
Rigorous Imprisonment for 2(two) years under Section 436 IPC. The sentences
were to run concurrently.
3. Being aggrieved with his conviction and sentence, the appellant has
filed the present appeal, stating that there was no evidence given by the
Prosecution witnesses, proving that the appellant had killed the Gaonburah or
the appellant’s own two daughters, even though the appellant during the time
of framing of charge under Sections 302/324/436 IPC, had pleaded guilty to the
charges.
Page No.# 3/19
4. During the proceedings of the present appeal, this Court had noticed
that besides the appellant having stood trial for the murder of three persons, a
number of persons had sustained grievous injuries, namely Jinaram Amsi, Noldoi
Amsi, Homen Mithi, Shankar Methi and Lokhim Maslai. This Court also observed
that one Bhanu Maslai was an eyewitness to the murder of the Gaonburah
Talbor Amsi, as per the evidence of the other Prosecution witnesses. Though the
learned Public Prosecutor, Assam had made an application before the learned
Trial Court for examining Bhanu Maslai, she was not examined. This Court also
found that no endeavour had been made by the Prosecution for examining the
injured witnesses mentioned above, who could throw light on the crime. This
court also found that the learned Trial Court had remained a silent spectator
regarding the above witnesses. Keeping in view the fact that Judges cannot take
the role of Prosecution or defence, and as Judges could also not afford to be a
mute spectator, this Court felt that fair trial demanded that Judges must take a
participatory role to secure the ends of justice. In view of the above reasons
and keeping in view Sections 311/391 Cr.P.C and Section 165 of the Evidence
Act, this Court directed that additional evidence of the 5 witnesses mentioned
above should be recorded, besides the evidence of Bhanu Maslai. The same was
accordingly ordered by this Court vide order dated 30/01/2020.
5. In terms of the order dated 30/01/2020 passed by this Court, the Trial
Court records were sent back. However, the learned Trial Court sent the Trial
Court records back to this Court along with an order dated 27/10/2021, wherein
it stated that Smti. Bhanu Maslai had expired. This Court thereafter passed a
subsequent order dated 01/08/2024, holding that the Trial Court had not spoken
of recording the evidence of 5 other persons whose names had been mentioned
Page No.# 4/19
in the order dated 30/01/2020 and who had sustained grievous injures. This
Court thus directed the learned Trial Court to record the additional evidence of
the 5 other persons mentioned in the order dated 30/01/2020. Pursuant to the
order dated 01/08/2024 passed by this Court for recording the additional
evidence of the other 5 persons mentioned in the order dated 30/01/2020, the
learned Trial Court recorded the additional evidence of (Court Witness) CW-1
Jinaram Amsi, CW-2 Lokhim Maslai, CW-3 Shankar Methi and CW-4 Homen
Mithi.
6. Thus, the present case has to be decided on the basis of the evidence
given by 8 Prosecution witnesses and the 4 Court witnesses, relating to the
death of the Gaonburah and the two daughters of the appellant, who have all
been apparently killed by the appellant, besides the appellant setting fire to a
number of houses and a school in the village.
7. The case of the appellant is to the effect that though the appellant
had pleaded guilty to the charges under Sections 302/324/436 IPC for killing the
Gaonburah and the appellant’s own two daughters, besides setting fire to
houses and the primary school building of the village during framing of charge,
the learned Trial Court recorded the evidence of the witnesses, thereby making
the admission of guilt by the appellant during framing of charge no longer
useable, as the basis for coming to a finding that the appellant was guilty of the
offences against which he was charged at the end of trial. Further, though the
appellant had made a confessional statement under Section 164 Cr.P.C, the
same not having been done by the Recording Magistrate, by taking into account
the safeguards provided under Section 164 Cr.P.C, prior to recording the
Page No.# 5/19
statement of the appellant under Section 164 Cr.P.C, the same could not be
used as substantive evidence for convicting the appellant. The appellant’s
further case is also to the effect that though the appellant in his examination
under Section 313 Cr.P.C, had admitted to killing the Gaonburah and his two
daughters, besides burning dwelling houses and the primary school building of
the village, the explanation of the accused under Section 313 Cr.P.C could not be
used as substantive evidence for convicting the appellant.
8. The learned counsel for the appellant submits that as there is no
evidence recorded by the learned Trial Court, proving the guilt of the appellant
in the killing of the Gaonburah and the appellant’s own two daughters, the
conviction and sentence of the appellant on the above three charges should be
set aside.
9. The learned Addl. Public Prosecutor, on the other hand, submits that
the appellant having admitted to his guilt during framing of charge, his
confessional statement under section 164 Cr.P.C and his admission of his guilt
during his examination under Section 313 Cr.P.C, clearly proves that there was
no infirmity with the conviction of the appellant for having murdered the
Gaonburah and his own two daughters. The learned Addl. Public Prosecutor also
submits that the evidence of CW-1, shows that CW-1 was an eyewitness to the
appellant hitting the head of his father (Gaonburah) with a dao, which caused
the head of the Gaonburah to split into two. Further, CW-1 was the youngest
son, out of the 3 sons of the deceased Gaonburah, who had seen the incident.
The learned Addl. Public Prosecutor also submits that though the Section 164
Cr.P.C confessional statement of the appellant speaks of the appellant hacking
Page No.# 6/19
the Gaonburah and his daughter with a dao, the daughter mentioned therein
has to be construed to be the two daughters of the appellant, inasmuch as, the
Gaonburah did not have any daughter. Further, the appellant believed his two
daughters to be the illegitimate daughters of the Gaonburah, due to the
appellant stating in his confessional statement that he had seen the Gaonburah
having sexual intercourse with the appellant’s wife. The learned Addl. Public
Prosecutor submits that the facts of the case, as a whole, shows that it was the
appellant who was guilty of having killed the Gaonburah and his own two
daughters, besides setting fire to houses and the primary school building of the
village. As such, there was no infirmity with the conviction of the appellant by
the learned Trial Court.
10. We have heard the learned counsels for the parties.
11. As can be seen from the records, the learned Trial Court had examined
8(eight) Prosecution witnesses and 4(four) Court Witnesses.
12. The first issue to be decided is whether the appellant had, during
framing of charge, admitted to the charge of having killed the Gaonburah and
his own two daughters, besides burning houses and the primary school building
of the village. It is seen that the Learned Trial Court has recorded that the
appellant had pleaded guilty to the same. However, the learned Trial Court has
not recorded the exact statement made by the appellant, except stating that he
pleaded guilty. In any event, it is not disputed by the appellant that he had
admitted his guilt before the learned Trial Court at the time of framing of
charge.
Page No.# 7/19
13. The contents of the confessional statement made by the appellant
under Section 164 Cr.P.C is to the following effect-
“My name is Sibeswar Maslai. The name of my village is Tapsal. I always
offer prayers in the Kali temple in my house. Two persons, who reside a
little away from my house, threw blood of black cow in my Kali temple. I
was told about it by a neighbouring woman who is older than me (Here
addresses as ‘Baideu’). Thereafter I went mad/insane and hacked the
aforementioned woman. The Gaonburha (Village head) of our village
hatched a conspiracy with the said two persons and committed this evil
deed in my temple. Therefore, going to the house of our Gaonburha
(Village head), I took a dao from his house and hacked him and his
daughter with that dao. Then I tried to commit suicide by cutting my
neck. On a day I saw the Gaonburha having sexual intercourse with my
wife on bed. I have this much to say.”
A perusal of the above clearly shows that nowhere has the appellant
confessed to having killed his two daughters. Surprisingly, the Officer who had
recorded the appellant’s statement under Section 164 Cr.P.C has, in his
evidence, stated that the appellant had confessed to killing the Gaonburah and
his (appellant’s) two daughters, namely, Smt. Jun Maslai and Manjula Maslai.
However, as can be seen from the above confessional statement, no such
confession has been made by the appellant. The appellant has however
admitted to hacking the Gaonburah and his daughter, which could be implied to
be the appellant’s own daughter.
14. As stated earlier, during the present appeal proceedings, this Court,
vide order dated 01/08/2024, had directed that additional evidence should be
taken by the learned Trial Court in terms of Section 391 Cr.P.C, as some injured
Page No.# 8/19
witnesses to the crime had not been examined. Pursuant to the direction passed
by this Court, vide order dated 01/08/2024, the learned Trial Court examined
the four Court witnesses :-
“CW-1- Shri Jinaram Amsi
CW-2- Sri Lokhim Maslai
CW-3- Shri Shankar Methi
CW-4- Shri Homen Mithi”
15. Paragraph 25 of the impugned judgment of the learned Trial Court is to
the effect that the appellant, in his confessional statement, had stated that he
had attacked the deceased Talibor Amsi with a dao on his head, as a result of
which he died and that he had killed his own daughters, namely Junu Maslai
and Manjula Maslai, by causing injuries with a dao. This observation/finding
made by the learned Trial Court with regard to the appellant stating that he had
killed his own daughters has been deduced from the appellant’s statement
made under section 164 Cr.P.C. The reference to the word “daughter” in the
appellant’s statement made under Section 164 Cr.P.C has been implied to mean
the appellant’s daughter, inasmuch as, the appellant had stated that he had
seen the Gaonburah having sexual intercourse with his wife. Thus, he believed
his own daughters to be the daughters of the Gaonburah. However, as we
cannot put words into the statement of the appellant under Section 164 Cr.P.C
which are not there, it would not be safe to conclude that the appellant’s
statement under section 164 Cr.P.C amounted to the appellant confessing to
killing his two daughters, though the implication appears to be present.
Page No.# 9/19
16. As stated earlier, there is no denial with the fact that the appellant had
admitted to killing the Gaonburah and his two daughters during framing of
charge and with the killing of the Gaonburah in his Section 164 Cr.P.C
statement. There is also an admission made by the appellant in his examination
under Section 313 Cr.P.C that he had killed the Gaonburah and his own two
daughters. The admission made by the appellant in his examination under
Section 313 Cr.P.C thus corroborates his admission of guilt before the learned
Trial Court, during framing of charge, that he had killed the Gaonburah and his
two daughters.
17. A perusal of the evidence of CW-1, who is the son of the deceased
Gaonburah, is to the effect that he saw the appellant hitting his father’s head
with a dao, which split the head of his father into two. There is no evidence
given by any of the Prosecution Witnesses or Court Witnesses, stating that they
had seen the appellant killing his two daughters.
18. The evidence of Anupam Deka, ACS, is to the effect that he had
recorded the confessional statement of the appellant under Section 164 Cr.P.C.
He had asked the appellant whether he would confess to his guilt, to which the
appellant agreed. Anupam Deka also informed the appellant that he was a
Magistrate and not a Police Officer and that he was not compelled to confess his
guilt. He also asked the appellant as to whether he would give his confessional
statement voluntarily and that the same could be used against him. The
appellant had agreed to the same. Thereafter, Mr. Anupam Deka gave reflection
time to the appellant. The appellant was thereafter asked again whether he
would give his confessional statement voluntarily, to which he gave a positive
answer. The confessional statement was thereafter recorded under Section 164
Page No.# 10/19
Cr.PC in the vernacular. In his confessional statement, the appellant stated that
he had killed Talbor Amsi (Gaonburah), by hitting his head with a dao and that
he had also killed his daughters with a dao. In addition to the above, the
appellant had also stated that he attacked Smt. Naldai Amsi and Jinaram Amsai.
Thereafter the appellant had put his thumb impression on the form where his
statement was recorded.
19. The evidence of Mr. Dulen Ch. Deka, the Deputy S.P., Kamrup (City),
Guwahati, is to the effect on hearing the news about the incident, he went to
the village, where he saw the dead body of the Gaonburah and conducted
inquest over the same. Dulen Ch. Deka also came to know that the two minor
daughters of the appellant were killed by the appellant, which were lying 25
yards away from the house of the Gaonburah. Rakesh Kumar also came to know
that the appellant had been tied with a rope by the villagers. He untied the
appellant and took him into custody. He also stated that the appellant gave his
confessional statement and on finding that the appellant had burnt about 10
houses including his own house, he submitted the charge sheet against the
appellant.
20. The evidence of Dr. Rekha Bhuyan, who was working in Jagiroad, Nakhola
Subsidiary Health Centre as Medical and Health Officer-1, is to the effect that
she had examined 5 persons who had simple injuries on their persons.
21. The evidence of Dr. Ratul Thakur, is to the effect that he conducted post-
mortem examination over the body of Manjuli Maslai, Jun Maslai and Talbor
Amsi.
Page No.# 11/19
The Post-Mortem report of Manjuli Maslai (appellant’s daughter) is to the
effect that there was one sharp cut wound noticed over the front of upper part
of neck about 4″ and transverse deep to cut open the larynx. Both the carotid
sheath are transected at the wound. The neck wound was ante mortem in
nature and caused by sharp cutting weapon. Further, in the opinion of the
Doctor, death was due to severe hemorrhagic shock and laryngeal injury.
The post-mortem report of Jun Maslai (appellant’s daughter) is to the
effect that one transverse sharp cut could be seen along the upper part of front
of neck about 4″ long. The cut deepens to cut the larynx completely. The carotid
vessels on both sides were also completely transected. The more detailed
description of injury shows that there was a sharp cut over the front of the
neck, which transected the larynx and the carotid vessels leading to severe
haemorrhage and shock. In the opinion of the Doctor, death was due to the
combined effect of hemorrhagic shock and wind pipe injury.
The Post Mortem report of the Gaonburah Talbor Amsi, is to the effect that
there was one longitudinal sharp cut wound over the vertex of skull about 5 inch
long (anteroposterior) of Talbor Amsi. The injury on the cranium and spinal
canal were as follows :
“Scalp, skull vertebrae, membrane, Brain and spinal cord _ Scalp wound
as described. The skull along the wound is fractured (cut through both
tables). The cut on deeper aspect extends to membranes and then to
substance of brain which is protapscal. The cranial cavity is partially empty
due to loss of brain matter.”
Page No.# 12/19
The head injury was caused by a sharp weapon and was ante mortem in
nature. In his view, death was caused by sharp cut injury to the skull and due to
serious brain injury.
22. The evidence of Sri Pilon Mithi, is to the effect that the Gaonburah was
killed by the appellant. He further stated that while cutting bamboo along with
co-villagers, the wife of Sibeswar Maslai (Bhanu Maslai) came running and told
them that their house was burning and that a man had been killed. She then
told them that the appellant had cut the Gaonburah and his elder sister, besides
the appellant’s own two daughters. He was told that the appellant had cut
Noldoi Amsi and Jinaram Amsi, whom they saw lying injured in the courtyard of
the Gaonburah. He also saw the dead bodies of the two daughters of the
appellant lying in the paddy field near the house of the Gaonburah. The witness
Pilon Mithi further stated that the appellant had set fire to his house and the
houses of his co-villagers Ramesh, Homen Mithi, Sankar Mithi, Lakhim Maslai
and a school building. He also stated that the appellant had also set fire to his
own house. They later found the appellant inside the house of Ramesh. The
appellant was thereafter tied with a rope against a half-burnt post at around 5
pm. The police were informed and on the Police arriving, the appellant was
handed over to them. The witness Pilon Mithi further stated that he filed the
FIR.
23. The evidence of Birbal Maslai is to the effect that he did not see the
incident. However, he came to know from the village children that the appellant
had hacked the Gaonburah and his two daughters with a dao, besides injuring
Noldoi and Jinaram Amsi. The dao was recovered by the villagers, though he did
not see it in the Court.
Page No.# 13/19
24. The evidence of Fibi Sing Mithi, is to the effect that the wife of Sibeshwar
Maslai, namely Bhanu Maslai, told him and others that the appellant had cut her
brother Talbor Amsi and the Gaonburah’s elder sister and son, namely Naldoi
Maslai and Jinaram Amsi respectively, besides his own two daughters. On
rushing to the house of Talbor Amsi they saw the dead body of Talbor Amsi with
cut injuries on his head. They also saw Jinaram Amsi and Noldoi Maslai with
injuries, lying in the courtyard of Talbor Amsi. He also saw the dead bodies of
the two daughters of the appellant lying near a stream. Fibi Singh Mithi further
stated that he came to know from the wife of the appellant that the appellant
had chased his two daughters and hacked them with a knife causing death. The
appellant had also set fire to his own house and the houses of Pilon Mithi,
Ramesh Amsi, Bipul Maslai, Arjun Maslai, Homen Maslai, Sankar Mithi and the
school building of their village. The appellant was then found lying on a jute bag
inside the burnt house of Ramesh Amsi. He was then tied up by the villagers
with a rope onto a half burnt post. When the police arrived, the appellant was
handed over to the police. Fibi Singh Mithi stated that he did not see the
incident.
25. The evidence of Ramesh Amsi, is to the effect that he did not see incident
though he heard from others, namely the wife of the appellant, that the
appellant had killed the Gaonburah and his own two daughters with a dao.
26. The examination of the appellant under Section 313 Cr.P.C shows that he
has admitted to killing the Gaonburah and his two daughters. He has also
admitted to causing voluntary hurt to Noldoi Maslai and Jinaram Amsi. He has
also admitted to setting fire to some houses. On being asked as to whether he
had pleaded guilty at the time of framing of charge under Section 302/324/436
Page No.# 14/19
IPC and whether the same was done voluntarily, the appellant stated that he
had pleaded guilty voluntarily. When asked as to whether he had anything more
to say relating to the present case, the appellant in his examination under
Section 313 Cr.P.C stated as follows:
“Ans : – I have something to say. Prior to the day of incident, a case of
theft look place at my house. I called on Talbor Amsi since he is
Gaonburah and requested him hold ‘bichar’ but he did not pay any heed
to my request. Moreover, the said Talbor Amsi and some other villagers
did not like me and my family. They even tortured me and my other family
members both physically and mentally. For these hidden tragedies, my
mind and brain became upset and being beyond control, I committed the
offence as described to me today. Now, I am repenting for my said act”
27. In the case of Jai Prakash Tiwari vs. State of Madhya Pradesh ,
reported in 2022 SCC OnLine SC 966, the Supreme Court has held that the
purpose of Section 313 Cr.P.C is to provide the accused a reasonable opportunity
to explain the adverse circumstances that have emerged against him during the
course of trial. Further, when an accused sets up a defence and offers an
explanation, the accused is not required to prove his defence beyond a
reasonable doubt, but only by preponderance of probabilities.
28. In the case of Parminder Kaur vs. State of Punjab , reported in
(2020) 8 SCC 811, the Supreme Court held that once a plausible version has
been put forth in defence during examination under Section 313 Cr.P.C, then it is
for the prosecution to negate such a defence plea.
29. What can be gathered from the above decisions of the Supreme Court, is
that an accused has to be informed of the adverse evidence recorded against
Page No.# 15/19
him, to provide a reasonable opportunity to the accused to explain the same.
Thereafter, it is the duty of the Court to consider the explanation given by the
accused, whether it creates a doubt by way of preponderance of probability or
whether it corroborates the evidence adduced against him.
30. As can be seen from the above facts, the appellant had admitted his guilt
in killing the Gaonburah and his two daughters, besides burning houses and the
school in his village during framing of charge under Section 302/324/436 IPC.
He has also admitted in his statement made under Section 164 Cr.P.C that he
had killed the Gaonburah and his daughter. The statement made by the
appellant under Section 164 Cr.P.C cannot be considered to mean that he had
admitted to killing his two daughters in the absence of any clarification as to
whether he had killed his two daughters. However the appellant in his
examination under Section 313 Cr.P.C has admitted to killing the Gaonburah and
his daughter, besides injuring two other persons and setting fire to houses and
the school in his village. The evidence of CW-1, who is the eyewitness to the
crime, shows that he had had seen the appellant hitting the head of the
Gaonburah with a dao. In fact, CW-1 (Jinaram Amsi) is an injured eyewitness
and as such there is nothing to doubt his evidence. CW-2, 3 and 4 did not see
the incident though they saw the burning houses.
31. In the case of Shahaja @ Shahajan Ismail Mohd. Shaikh vs. State
of Maharashtra, reported in 2022 LiveLaw (SC) 596, the Supreme Court
has held that the appreciation of ocular evidence is a hard task and there is no
fixed or strait-jacket formula for appreciation of ocular evidence. The Supreme
Court then enumerated various judicially evolved principles for appreciation of
ocular evidence, one of them being that while appreciating the evidence of a
Page No.# 16/19
witness, the approach must be whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that impression is formed, it is
necessary for the Court to scrutinize the evidence, more particularly keeping in
view the deficiencies, drawbacks and infirmities pointed out in the evidence as a
whole and evaluate them to find out whether it is against the general tenor of
the evidence given by the witness and whether the same is shaken, as to render
it unworthy of belief. In the present case, there is nothing to shake the ring of
truth surrounding the evidence given by CW-1. Further, the appellant has also
not confronted CW-1 during cross-examination, with regard to any alleged
deficiencies, drawbacks and infirmities in the evidence adduced by him. Further,
CW-1 is an injured witness, whose evidence sets a higher pedestal than an
ordinary witness.
32. In the case of Ravasaheb @ Ravasahebgouda etc. vs. State of
Karnataka, reported in 2023 LiveLaw (SC) 225, the Supreme Court held
that that it did not find favour with the submissions of the counsel appearing for
the accused persons, that conviction based on the solitary evidence was not
justified, especially when there was no vagueness in the testimony of the
solitary witness. Keeping the above two judgments in view, we do not find any
ground to doubt the conviction of the appellant by the learned Trial Court in the
killing of the Gaonburah, as the evidence of CW-1 is not shaken and which we
find to be worthy of belief.
33. The learned counsel for the appellant has made a submission that when
the Trial Court had continued with the trial by recording the evidence of the
witnesses, instead of convicting the appellant, after he had admitted to his guilt
during the framing of charge, the same amounted to the Trial Court not being
Page No.# 17/19
convinced about the guilt of the appellant. We do not accept the said
submission and view of the learned counsel for the appellant, inasmuch as, the
learned Trial Court has recorded the appellant’s plea of guilt during the stage of
framing of charge and the subsequent trial proceedings has only been made to
be doubly sure of the guilt of the appellant.
34. Section 229 Cr.P.C provides that if the accused pleads guilty during
framing of charge, the Judge shall record the plea and may, in his discretion,
convict him thereon. The above provision nowhere provides that if a trial is held
despite pleading guilty, the same implied that the Sessions Court was not
convinced of the guilt of the accused. The said assumption could only be made
if the Trial Court did not record the plea of guilt of the accused. However, in the
present case, the learned Trial Court has recorded the plea of guilt of the
accused and as such, it cannot be said that his plea of guilt cannot be
considered, along with the other evidence by the learned Trial Court, in coming
to a finding as to whether the appellant was guilty of having committed the
offence in terms of the charges framed against him.
35. One other aspect of the matter which needs to be decided, is whether the
safeguards required to be taken by the learned Recording Magistrate recording
the confessional statement of an accused under Section 164 Cr.P.C and the rules
made by the concerned High Court, had been taken.
36. In the case of Shivappa vs. State of Karnataka, reported in (1995) 2
SCC 76,, the Supreme Court has held that the statutory provisions dealing with
the recording of confessional statements by Metropolitan Magistrates and
Judicial Magistrates are contained in Section 164 Cr.P.C and the rules framed by
Page No.# 18/19
the concerned High Courts containing guidelines for recording of confessions.
Unless the Court is satisfied that the confession is voluntary in nature, it cannot
be acted upon and no further enquiry as to whether it is true and trustworthy
need to be made.
37. In the present case, the appellant had been asked twice as to whether his
confession was going to be voluntary, to which he replied in the positive.
Reflection time was also given to the appellant, besides other questions being
asked from the appellant. The question that remains to be seen is whether the
safeguards provided under Section 164 Cr.P.C and as per the concerned High
Court Rules had been met by the Officer, recording the confessional statement
of the appellant, prior to recording the confessional statement. Confessional
statements are recorded under Section 164 Cr.P.C in the Gauhati High Court in
terms of the Gauhati High Court Criminal Rules and Orders, Form No. (M) 34 as
per the notification issued by the Gauhati High Court in the year 2006. On
perusing the contents of the Form No. (M) 34 used for recording the
confessional statement of the appellant, we find that the requirements prior to
recording the confessional statement of the appellant in terms of Form No. (M)
34 have been met. As such, we are of the view that the confessional statement
of the appellant under Section 164 Cr.P.C does not suffer from any infirmity and
can be acted upon. We accordingly find that the Prosecution has been able to
prove the guilt of the appellant beyond all reasonable doubt under Section 302
and 436 IPC
38. In view of the reasons stated above, we do not find any ground to
interfere with the learned Trial Court convicting the appellant under Section 302
and 436 IPC.
Page No.# 19/19
39. The appeal is accordingly dismissed.
40. Send back the TCR.
41. In appreciation of the assistance provided by learned Amicus Curiae for
the appellant, his fees should be paid by the High Court Legal Services
Committee.
JUDGE JUDGE
Comparing Assistant
Kuntal Digitally signed
by Kuntal Datta
Datta Date: 2026.07.24
10:59:57 +05'30'
