Can't Base Conviction On Retracted Confession Sans Corroboration: Gauhati High Court Acquits Five In 2004 Independence Day Blast At Dhemaji

The Gauhati High Court recently acquitted five persons who were convicted by the Trial Court in Dhemaji Bomb Blast case of 2004 in which 13 persons including 10 children were killed and around 20 persons were grievously injured during the Independence Day celebrations at Dhemaji College Play Ground.

The division bench of Justice Michael Zothankhuma and Justice Mridul Kumar Kalita noted that the prosecution has been unable to prove the foundational facts against the appellants and the Trial Court came to a finding on suspicion and speculation, not supported by the evidence adduced by the prosecution witness.

“In the present case, the prosecution has not been able to conclusively prove the guilt of the appellants, as there is no continuous chain of circumstantial evidence, with regard to the hypothesis that the appellants had hatched a conspiracy and had blasted the bomb on the fateful day in the Dhemaji College Field,” the bench said.

The appellants were convicted by the Trial Court under the various provisions of IPC, Explosives Substances Act, 1908 and Unlawful Activities (Prevention) Act, 1967. They preferred the present appeals before the High Court stating the Trial Court convicted them on the basis of retracted confessional statement of Jatin Dowari (appellant no.3) under Section 164 CrPC. It was submitted that there is no other corroborative evidence to link Jatin Dowari or the other appellants with the bomb blast.

It was contended that the confessional statement of Jatin Dowari was exculpatory in nature and the same having been retracted during his examination under Section 313 CrPC, the same could not have been used as a basis for coming to a finding that the appellants were guilty.

The counsels appearing for the appellants further submitted that the entire case of the prosecution is based on the fabricated story made up by PW-56, who is the Investigating Officer (I.O.) of the case, without giving any details or making any attempt to connect the appellants with the bomb blast.

It was argued that the sanction under Section 45 of the 1967 Act had not been exhibited before the Trial Court, thereby implying that no sanction for the same had been issued. It was submitted that while prosecution sanction under the Explosive Substances Act had been given for prosecuting the appellants under Section 3 & 4 of the Explosive Substances Act, the same had been exhibited as Ext-64 by the I.O. and not by the District Magistrate, who had drafted the said sanction order.

On the other hand, the Additional Public Prosecutor (APP) submitted that there is no infirmity in the District Magistrate not exhibiting the prosecution sanction order made under the Explosive Substances Act, as the same had been exhibited by the I.O, to whom the prosecution sanction had been given.

In respect of non-exhibiting the prosecution sanction under the 1967 Act, the APP submitted that the charge-sheet having categorically stated that two prosecution sanctions had been made, the non-exhibiting of the prosecution sanction order under the 1967 Act cannot be fatal to the prosecution case.

The Court noted:

“We are unable to understand how the learned Trial Court could have come to a finding that Jatin Dowari was a party to a conspiracy to commit a bomb blast on the basis of having allegedly recreated the scene of the crime, when there is nothing to show in the evidence as to how the appellant had recreated the scene of the crime. There is no video cassette produced to substantiate the said allegation. Further, the statement made by the appellant Jatin Dowari under Section 164 Cr.PC is exculpatory in nature, besides having been retracted during his examination under Section 313 Cr.PC.”

It was observed by the Court that the retracted confessional statement made by the appellant Jatin Dowari does not in any way implicate the maker of the same and in any event, a confessional statement can be only be used for the purpose of corroboration and if it is to be used as the basis for conviction, there has to be corroboration of the same from evidences from other sources.

The Court remarked that no certificate under Section 65B of the Evidence Act has been produced during evidence, which proved that phone calls had been made from the mobile handsets of the said two appellants to the ULFA leaders, which could show a connection with the bomb blast that occurred at Dhemaji College field.

“In the absence of a certificate under Section 65 of the Evidence Act, the appellants involvement with the ULFA leaders, in relation to the bomb blast that had occurred cannot be proved and as such, the finding of the learned Trial Court on this ground cannot withstand the scrutiny of law,” the Court said.

The Court observed that in the present case, the circumstantial evidence do not form an unbroken chain that leads to the only possible inference that the appellants are guilty of the crime. It was further observed that there is no evidence at all, except the statements made under Section 164 CrPC, which are not supported or corroborated by any other evidence. Further, the court noted that the Judicial Officer recording the said statements has not given reasons for believing the same were made voluntary, as required in law.

“…as sufficient assurance was not given to the appellant Jatin Dowari in terms of the Form made by the Gauhati High Court for recording of a confessional statement made under Section 164 Cr.P.C, the retracted confessional statement of Jatin Dowari cannot be acted upon. It is also not understood as to how the learned Trial Court had come to a finding that the appellant Jatin Dowari had recreated the scene of the crime, as there is no evidence to that effect recorded by the learned Trial Court,” the Court said.

The Court relied upon the various pronouncements of the Supreme Court and held that the prosecution has not been able to establish a prima facie case against the accused persons in the first instance and the retracted confessional statement of Jatin Dowari only gives rise to a suspicion and it is by no means an establishment of any fact pointing towards the guilt of the accused Jatin Dowari having any knowledge that a bomb would have been planted in the Dhemaji College field.

“We find that the findings of the learned Trial Court have not been supported by the evidence recorded by the prosecution witnesses. The Trial Court cannot make findings on the basis of speculations or suspicion and the same has to be based on evidence…In essence, not only has the Prosecution been unable to prove the foundational facts against the appellants, but the learned Trial Court has come to a finding based on suspicion and speculation, not supported by the evidence adduced by the Prosecution witness,” the Court remarked.

Thus, the Court set aside the impugned judgment of conviction passed by the Trial Court and acquitted the appellants of the charges framed against them, by giving them the benefit of doubt.

Case Title: Smt. Dipanjali Borgohain & 2 Ors. v. The State of Assam and other related appeals

Citation: 2023 LiveLaw (Gau) 84

Coram: Justice Michael Zothankhuma and Justice Mridul Kumar Kalita

Click Here To Read/Download Judgment