Gauhati High Court
CRL.A(J)/79/2017 on 18 February, 2021
Page No.# 1/24
GAHC010242162017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl A. (J)/79/2017
Arjun Payok,
Son of Late Phul Singh Payok
Resident of village-Bamunigaon, Police Station-
Jakhalabandha, District-Nagaon, Assam.
-------------Appellant
-VERSUS-
1. The State of Assam
2. Sri Budhuwa Munda,
Son of Late Farniture Munda,
Resident of village-Bamunigaon, Police Station-
Jakhalabandha, District- Nagaon, Assam.
---------------Respondents
:: BEFORE::
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Petitioner : Mr. A. Ahmed, learned Amicus Curiae.
For the Respondents : Mrs. B. Bhuyan, learned Additional Public Prosecutor.
Date of Hearing : 05-02-2021.
Date of Judgment : 18-02-2021.
Page No.# 2/24
JUDGMENT & ORDER(CAV)
(Soumitra Saikia, J)
This criminal appeal under Section 374 of Cr. P.C is preferred by the
accused/appellant--Sri Arjun Payok (in jail), being aggrieved by the Judgment dated
20.06.2017 convicting the appellant to undergo Rigorous Imprisonment for Life under
Section 302 of Indian Penal Code for causing culpable homicide amounting to murder
of the deceased.
2. The prosecution case is that an FIR dated 05.06.2007 lodged before the
Jakhalabandha Police Station by the informant- Budhuwa Munda to the effect that on
05.06.2007 at about 8.30 a.m taking advantage of his absence from his house, Sri
Arjun Payok, son of-Late Phul Singh Payok of village-Bamunigaon, Police Station-
Jakhalabandha scolded his wife (informant's wife-Atuwari Munda) from the road. When
the wife of the informant came out of the house, the accused dealt ' dao' blows on her
head causing instantaneous death. It was stated in the FIR that the neighbours, Smti.
Bilashi Mahato, wife of Gunakanta Mahato and Smti. Deepa Mahato had witnessed the
incident. The said neighbours had brought the wife of the informant inside the house.
The informant stated that he received the information regarding the occurrence about
half an hour after the incident took place.
3. The said FIR was received and registered as Jakhalabandha Police Station case
No. 53/2007 under Section 302 of Indian Penal Code.
4. After receipt of the FIR the Investigation Officer proceeded to the place of the
occurrence, held the Inquest and drew the sketch-map. The Inquest was held in the
presence of the Magistrate, Kaliabor. The accused was arrested by the police and the
investigations into the offence were conducted accordingly. After completion of the
Investigation the charge-sheet was filed on 29.07.2007 against the accused--Arjun
Payok under Section 302 of Indian Penal Code. Charge-sheet dated 09.04.2009 was
filed under one head bringing the charge against the accused of committing murder of
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Atuwari Munda (deceased), wife of Budhuwa Munda (informant) and which offence is
punishable under Section 302 of the Indian Penal Code. Before the trial court the
prosecution supported it's case by as many as 9 (nine) witnesses and Post Mortem
Report, Inquest Report and sketch-map.
5. P.W.1, the informant- Sri Budhuwa Mura @ Munda, aged about 80 years, son of-
Late Farniture Munda, in his deposition stated that Atuwari Munda was his wife and
she was 70 years old at the time of her death. At the time of the incident the
informant went to a shop. Two women of the neighbourhood namely, Bilashi and
[email protected] Durgeswari were plucking tea leaves near his house. They had come to
pluck tea leaves in the garden near his house. After returning home, he saw his wife
being laid on a mat in an injured state. The P.W.1 deposed that the two women
brought his wife and laid her after she was attacked by the accused. The P.W.1
deposed that some people in the neighbourhood namely, Gunua, Bilashi and
Bhaleshwari @ Durgeswari informed that the accused had attacked his wife. He saw
the cut injury on the head of his wife and saw her struggling for breath. After a while
she died. He stated that he did not know as to why the accused has killed his wife. He
also stated that he did not make any complaint before the village headman for holding
an extra judicial trial as the accused person was absconding after committing the
incident.
5.1 In his cross-examination, the P.W.1 stated that there was a maize cultivation in
and around his house. The inner part of the house was not visible due to the height of
the maize plants. The house was situated near the tea garden. After returning from
shop, he found his wife lying on a bed in an injured state. He deposed that he was
asked to go to the Police Station by his neighbour, Gunua. He denied the suggestion
that Bilashi, Durgeswari @ Bhaleshwari and Gunua did not inform him about the
incident. He, however, testified that he did not intend to lodge the complaint in
connection with the incident but he did so since the police had asked him to do. He did
not to intend to lodge the ejahar or FIR due to financial constraints. He deposed that
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the Officer-In-Charge had written the ejahar and he did not know its contents. He
denied the suggestion that the accused--Arjun did not kill his wife and as he did not
intend to lodge the ejahar against him.
6. P.W.2, Sri Bilashi Mahato deposed in her examination-in-chief that she knew the
complainant-Budhuwa Mandal and the accused-Arjun Payok and they belong to her
village. She also knew Atuwari Munda, the deceased. She deposed that at the time of
occurrence at about 9.00 a.m she is working in the tea garden. The complainant's
residence is adjacent to the tea garden. She noticed both the complainant and the
accused from a little distance and both of them were quarrelling. Then she went to the
place of occurrence and found Atuwari Munda (deceased) lying in their campus with
the injury on her head. She deposed that she gave water to the deceased but she
died. There was no one near the place of occurrence. After the occurrence, the police
had come and enquired with her about the incident, she told the police what she
knew. She deposed that she did not see any weapon in the hands of the accused.
6.1. The witness P.W.2 was thereafter declared Hostile by the prosecution.
6.2. In the cross-examination by the prosecution, P.W.2 deposed that she did not
tell before the Investigating Officer that the accused--Arjun Payok abused the
deceased and subsequently killed her. She denied the suggestion that she did not state
before the Investigating Officer that the accused forcibly entered into the house of the
complainant with a 'dao' and the accused hit the wife of the informant twice. She
deposed that she saw a bamboo stick in the hand of the accused. She deposed that
she did not tell the Investigating Officer that she saw the occurrence. Further, she
deposed that she saw the head injury of the deceased. She also denied the suggestion
that she stated before the Police that she saw the accused hitting Atuwari Munda and
then flee away.
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6.3. In the cross-examination by the defence, she stated that the maize plants
were about 5 feet high and the person inside the compound could not be visible
properly due to the maize plaints. She stated that she had not seen them (informant
and the accused) quarrelling but she heard the sound of hue and cry. She stated that
she was at a distance of 50 feet from the place of occurrence and that she did not see
Arjun Payok but has heard the voice of Arjun Payok. She stated that she went to the
place of occurrence after half an hour. She also stated that she did not see Arjun
Payok leave the place of occurrence. She also denied the suggestion that she stated
before the police that Arjun Payok killed Atuwari Munda. She stated that she did not
know what the police wrote nor did they read over to her after writing it. She also
denied the suggestion that she did not see the occurrence of the offence.
7. P.W.3, Smti Deepa Bhumiz deposed in her evidence that she knew both the
informant and the accused as they are from the same village. On the date of the
occurrence at about 9.00 a.m she was on the duty of collecting tea plants when she
heard hue and cry from the house of the informant- Budhuwa Munda. Then she
rushed there and saw the deceased--Atuwari Munda lying on the courtyard. She then
poured cold water on her mouth but she did not see any injury on the body. She
stated that one little boy, nephew of Budhuwa Munda had called her. Then she and
Bilashi went there again and saw Budhuwa Munda taking his wife in a handcart to the
Hospital. The P.W.3 along with her co-worker returned back to their work.
Subsequently, she came to be informed that the deceased had expired.
8. P.W.4, Gopal Mahato in his examination-in-chief deposed that he knew the
deceased, the informant and the accused. He deposed that on the relevant day after
returning from the Jakhalabandha market he came to know that wife of Budhuwa
Munda was killed by the accused--Arjun Payok. He stated that he came to know about
the incident from the village people and he is witnessed to the Inquest report and duly
identify the signature.
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8.1. In his cross-examination he stated that police did not ask him about the
incident and he being illiterate he does not know what is written in the exhibit shown
as Inquest Report. He also does not know how the deceased died.
9. P.W.5, Biren Mandal deposed in his examination-in-chief that the accused,
informant and his wife were known to him. The incident took place at a distance
situated about 1 km from his house and shop. On the relevant day while he was in the
shop, he came to know from the village people that the accused had killed the wife of
the complainant. He then went to the place of occurrence along with the Police and
saw the dead body of the deceased lying in the house.
9.1. In his cross-examination he denied the suggestion that he had falsely stated
that he came to know from village people that the accused had killed the wife of the
complainant. He deposed that he did not see the accused in the place of occurrence
or any weapon at the place of occurrence.
10. P.W.6, Gunakanta Mahato in his examination-in-chief deposed that he was also
from the same village and he accompanied the police to show the house of the
informant. When he went there, he saw the body of the deceased lying there. He saw
head injury of the deceased and blood oozing out from there. Gathered people there
told him that the accused had killed the wife of Budhuwa.
10.1. In his cross-examination, he stated that he did not see who killed the wife of
Budhuwa Munda. He denied the suggestion that he had falsely stated that the
gathered people there told him that the accused had killed the wife of Budhuwa. He
stated that he put his signature on a blank paper and he also stated that the
Magistrate did not go to the house of the Budhuwa as there was mud on the road.
However, he denied the suggestion that the accused is innocent and that he is not
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involved in any offence.
11. P.W.7, Smti Durgeswari Bhumiz did not depose anything. She did not identify
the accused nor did she know the informant and the wife of the informant.
12. P.W.8 is the Investigating Officer. He deposed that on 05.06.2007 upon receipt
of the FIR he visited the place of occurrence. The Inquest over the dead body was
done by the Executive Magistrate in his presence. The dead body was sent to Nagaon
B.P. Civil Hospital for Post Mortem Examination. After his visit to the place of
occurrence he prepared a sketch-map of the place of occurrence. He identified the
sketch-map and his signature. He has deposed that after completion of investigation
and collecting the Post Mortem Report he submitted the charge-sheet against the
accused under Section 302 of Indian Penal Code. He identified the charge-sheet as
well as the signature. He stated that he examined P.W.2 in this case.
12.1. In his cross-examination, he denied the suggestion that P.W.2 did not state
before the police about facts which he deposed in the court in the examination-in-
chief. He denied the suggestion that P.W.2 did not state before him that she had seen
the occurrence. He denied the suggestion that P.W.2 stated before him that she heard
about the occurrence. He denied the suggestion that the P.W.2 did not state before
him when the accused had left the place of occurrence. He stated in his cross-
examination that after he arrived in the place of occurrence he found the dead body
kept on a pull cart (thela). He stated that the dead body was taken first to Dr. Imran
Shah and thereafter it was brought again to the place of occurrence. He deposed that
he saw the head of the deceased with grievous injury but it was not split up into two
pieces. The weapon used in the alleged offence was also not recovered. He denied the
suggestion that there was no actual incident of occurrence and that the accused is
innocent. He stated that the accused was arrested after one month of the occurrence.
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13. P.W.9, is Dr. Sushil Das, who is a retired Joint Director of Health Services,
Government of Assam. P.W.9 conducted the Post Mortem Report and on examination
the following injuries were noticed:-
"A dead body of 70 years female in stout condition. Eyes and mouth
were closed. Rigor mortis was Nil.
Incised wound at right parietal region of head. Size-3" X ¼" X ¼"
with fracture of both parietal bone with rapture of membrane and
subdural blood clot over parietal half of brain of both sides.
Intracranial blood clot was seen in both parietal brain matters.
In the stomach, partially digested food particles seen.
On cut section of the heart, all chambers of the heart were found
empty.
Uterus is normal in size.
More detail description of injury or disease:-
Injuries are ante mortem in nature as blood clot was firmly
adherent to injury sites".
13.1. After due examination, P.W.9 opined that the injuries are Ante Mortem in
nature and that the cause of death was due to shock and haemorrhage as a result of
the injury sustained at the head. He identified Post Mortem Report and his signature.
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13.2. In his cross-examination, he deposed that other than the injuries on the
head he did not find any other injury in any part of the body. He also stated that he
did not receive any Medical Report from Dr. Imran Hussain from Jakhalabandha PHC.
14. In his statements under Section 313 Cr. P.C., to as many as 13 (thirteen)
questions being put by the Trial Judge, the accused denied the allegations. In his
answer to question No.4 he, however, stated that at the time of the incident he went
to the Tea Estate to cut wood. His answers to all the other questions were denials
without any other explanation.
15. On these evidences being presented before the Trial Judge, the Trial Judge by
Judgment and Order dated 20.06.2017 convicted the accused of committing the
offence of murder of the deceased--Atuwari Munda and convicted the accused under
Section- 302 of Indian Penal Code and sentenced him to undergo Rigorous
Imprisonment for Life.
16. In view of the fact that there was no eye-witness to the offence, the Trial
Court on the basis of the evidence adduced being satisfied that the circumstances
described in paragraph 32 of the impugned Judgment being fully established to form
a complete chain pointing to the Guilt of the accused, convicted the accused on basis
of the circumstantial evidences, which were presented by the prosecution during the
trial.
17. Learned Amicus Curiae appearing for the Appellant strenuously urged that on
the evidences adduced before the trial court, the circumstances which were presented
before the Trial Judge could not be said to have completed the full circle necessary
leading to the sole conclusion towards the guilt of the accused beyond reasonable
doubt for being convicted in cases solely based upon circumstantial evidences. The
learned Amicus Curiae strongly argues that the evidences presented before the Trial
Court cannot lead to the conclusion of a guilt of the accused beyond reasonable doubt
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in order to convict the accused of the offence alleged under Section 302 Indian Penal
Code as had been done by the Trial Court.
18. The Learned Amicus Curiae submits that there is not a single eye witness who
had deposed against the accused nor has any weapon alleged to have been used in
the offence been recovered. The learned Amicus Curiae submits that the Trial Court
largely relied upon the evidence of P.W.2 (Smti. Bilashi Mahato), which could not have
been done in as much as P.W.2 was declared Hostile by the prosecution.
Consequently, the evidence adduced by the P.W.2 only seeks to shake very foundation
of the case sought to be projected against the accused by the prosecution. In support
of her contentions the learned Amicus relied upon the Judgment rendered by
coordinate Bench of this court in the case of Sikandar Ali -Vs- State of Assam
reported in 2010 (3) GLT 538.
19. The learned Amicus Curiae further submits that even in the Medical Report
there is no suggestion as to the nature of weapon used for the injuries seen upon the
deceased. The learned Amicus would argue that in the absence of the weapon alleged
to have been used in the offence not being recovered, the mere statement of P.W.1
that the accused had dealt 'dao' blows on the deceased cannot be relied on to arrive
at the conclusion leading to the conviction of the accused as had been done by the
Trial Court on the basis of circumstantial evidences. The learned Amicus strongly
argues that the sequence of events necessary to point to be guilt of the accused
beyond reasonable doubt is not made out in the instant case. Further it is urged by
the learned Amicus Curiae that abscondance of the accused if any also cannot be a
circumstance which can be used against him. Therefore the impugned Judgment
dated 20.06.2017 passed by the learned Trial Court should be set aside and quashed
and the accused be directed to set free.
20. Having heard the learned Amicus Curiae and the learned Additional Public
Prosecutor, the evidences adduced by the prosecution witnesses during the trial are
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required to be scrutinized from the LCR.
21. The evidence of P.W.1, Budhuwa Mura @ Munda, who is the husband of the
deceased-- Atuwari Munda reveals that he was not present in the place of occurrence
and at the time of occurrence. He deposed that Gunua, Bilashi and Bhaleshwari @
Durgeswari informed him that the accused had hacked his wife. At the time of the
occurrence, he went to a shop. On returning back he was informed by the persons
named above about the incident. He saw the cut injury on the head of his wife. He
deposed that he saw her struggling for breath and after while she died. The P.W.1
deposed that he did not know why the accused had killed his wife.
21.1. In the cross-examination, however, he stated that Gunua did not tell him
about the incidents. He on the basis of the information received from the persons in
the neighbourhood he approached the Police Station and lodged the FIR. He also
admitted that he did not make any complaint to the village headman. As such it is
clear that P.W.1, who is the informant- the husband of the deceased was not an eye-
witness. He also did not depose anything about any personal enmity between him,
and/or his deceased wife and the accused. It is also evident from his testimony that
there is no mention of the accused being present in the house with his deceased wife,
prior to the informant leaving for the shop. He also did not testify that after returning
from the shop when he saw the cut injury on the head of his wife, the accused being
present in the place of occurrence or in it's vicinity.
22. As such from the evidence of P.W.1, it is seen that there was an attack on the
wife of the P.W.1 and the P.W.1 was not present in the place of occurrence. When he
returned he found the cut injury on the head of his wife. On his returned from shop
he found P.W.2 and P.W.3 laying his injured wife on a mat in his house.
23. In her evidence P.W.2, Bilashi Mahatu initially deposed that at the time of
occurrence which is about 9.00 a.m on the date of occurrence i.e. on 05.06.2007, she
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was working in the Tea Garden. The house of the informant is adjacent to the Tea
Garden. She noticed both the complainant (informant) and the accused from a little
distance and saw them quarrelling. Then she went to the place of occurrence and
found the deceased--Atuwari Munda lying in the campus with the injury on her head.
She gave some water to her but she died. She deposed that there was no one near
the place of occurrence. She also deposed that she did not see any weapon in the
hand of the accused.
23.1. At this stage the petitioner being declared Hostile by the prosecution and was
cross-examination by both the prosecution and by the defence.
23.2. In the cross-examination by the prosecution, she denied submitting before
the Investigating Officer that the accused--Arjun Payok abuse the complainant and
the deceased and subsequently killed the deceased. She also denied the suggestion
that she did not state before the I/O that the accused forcibly entered into the house
of the complainant with a 'dao' and hit twice on the head of the deceased. Instead
she stated that she saw a bamboo stick in the hand of the accused. She also denied
the suggestion that she told the I/O regarding the occurrence. She also denied the
suggestion that she saw the accused hitting Atuwari Munda, the deceased and flee
away.
23.3. In the cross-examination by the defence she stated that there were maize
plantations which were about 5 feet in height around the house of the complainant.
She stated that the compound could not be visible properly due to the maize plants.
She stated that she did not see them (complainant and the accused) quarrelling but
heard the sound of hue and cry. She was at a distance of about 50 feet from the
place of occurrence. She did not see the accused but heard the voice of Arjun Payok.
She stated that she sent to the place of occurrence after half an hour and that she did
not see when the accused left the place of occurrence. She denied the suggestion
that she stated before the police that the accused had killed the deceased.
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23.4. From the evidence of P.W.2 although she is declared Hostile by the
prosecution, it is seen that she had deposed regarding the presence of the accused
although her testimony as an eye-witness to the presence of the accused is under the
cloud because of her being declared Hostile and she making contrary statements.
However, she stood by her testimony regarding the presence of the accused in the
house of the complainant at the time of the occurrence. At the same time her
testimony does not reveal that she was an eye witness to the accused being present
at the place of occurrence or that the accused was seen quarrelling with the
complainant and the deceased. Further the presence of the accused in the place of
occurrence as testified by P.W.2 was based on voice recognition that from a distance
of 50 feet.
23.5. In the cross-examination by the Defence she even stated that she did not
see the accused but heard the voice as there were maize plants surrounding the
house of the complainant. She was also at a distance of approximately 50 feet from
the place of occurrence and there is no deposition regarding the nature of
conversation between the complainant and the accused from which the guilt of the
accused can be suspected. She also deposed regarding the presence of the informant
and the hue and cry coming from the place of occurrence. Without any other
corroborating evidence to suggest any previous animosity between the complainant,
the deceased and the accused relying upon the testimony of the P.W.2 regarding the
presence of the accused in the house of the complainant will not be sufficient to point
to the guilt of the accused beyond reasonable doubt that too, where his presence was
not seen, but she recognized him from his voice. She also deposed that there were
some people working in the garden with her but she does not name those persons
nor narrate about their behavior after the occurrence. From the deposition of P.W.2 it
is not clear as to whether she saw the accused in the place of occurrence alone with
the deceased prior to the occurrence. In her deposition she testified the presence of
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both the complainant and the accused and that to by identifying the accused from his
voice from a distance of approximately 50 feet. Such testimony without any further
corroboration or any other evidences does not solely pointed to the guilt of the
accused for the offence alleged. Her testimony does not complete the chain of
circumstance and will not be safe to only upon to point solely to the guilt of the
accused beyond reasonable doubt.
24. P.W.3, Deepa Bhumiz in her testimony deposed that on the date of
occurrence at about 9.00 a.m she was in her duty of collecting tea leaves from the
Tea Garden (which is adjacent to the house of the complainant). She heard hue and
cry from the house of the complainant-- Budhuwa Munda. When she rushed there
she saw the wife (deceased) of the complainant lying on her courtyard. Then she
poured some water in her mouth but she did not see any injury on her body.
Thereafter, she went to her work and subsequently the nephew of the complainant
called her again. Then she and Bilashi Mahato (P.W.2) again went to the house of the
complainant and then there she saw the complainant taking his wife in a handcart to
the hospital. Subsequently, she came to learn that she expired. She deposed that she
does not know how the deceased expired.
24.1. In the cross-examination by the defence she stated that when the police
asked her about the incident she stated like what she stated before the court.
24.2. This witness is put up by the prosecution and her testimony remains that she
went to the house of the complainant twice. First upon hearing hue and cry and
found the wife of the complainant lying on the courtyard. Subsequently on being
called by the nephew of the complainant she and the P.W.2 went again. In the
evidence of P.W.3 it is seen that there is no statement regarding the presence of the
accused at the time of occurrence and on the place of occurrence. This witness also
does not explain the cause as to why the wife of the complainant was lying on the
floor on the courtyard. However, she testified that there was no injury seen by her on
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the body of the deceased. As such, the testimony of this witness also does not
support the theory of the presence of the accused at the place of occurrence and at
the time of occurrence. From the evidence of P.W.3 it is also seen that both she and
P.W.2 were working in the garden adjacent to the courtyard of the complainant. The
P.W.2 and P.W.3 together went to the house of the complainant twice. Since the P.W.3
was not declared Hostile or cross-examined in detail, her evidence-in-chief will have
to be taken as un-rebutted. If P.W.3's evidence is juxtaposed with that of P.W.2, the
evidence of P.W.2 will have to be viewed with some suspicion as regards her
testimony that she was in the place of occurrence alone or that she went to the place
of occurrence by herself. From P.W.3's evidence it is seen that both P.W.3 and P.W.2
went to the place of occurrence, but the presence of the accused is not reflected in
the evidence of P.W.3.
25. P.W.4, P.W.5 and P.W.6 were not present at or near the place of occurrence
and at the time of occurrence. They were not the eye-witnesses and hence their
evidences were admittedly "hearsay".
26. P.W.7 declined to identify the accused. She also denied that she knew the
informant or his deceased wife and she did not adduce any evidence for the
prosecution to rely upon.
27. P.W.8 is the Investigating officer deposed that as per the allegation in the FIR
the accused had killed the wife of the complainant namely, Atuwari Munda by striking
with a 'dao'. In his evidence he stated that he had examined P.W.2 in respect of this
case and in her previous statement P.W.2 stated that she had seen the accused
forcibly entering into the house of the complainant with a ' dao' and hit twice on the
head of Atuwari Munda and that the accused fled away thereafter. The Investigating
Officer further stated that the P.W.2 had stated before him that she had also seen a
bamboo stick in the hand of the accused and the head injury on the deceased.
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28. From the sketch-map drawn by the Investigating Officer it is seen that the
description of the place of occurrence and its vicinity doesn't meet the description of a
place of occurrence and its vicinity as projected by the P.W.1 and P.W.2. The defence
did not question the correctness of the sketch-map during the trial. A perusal of the
sketch-map reveals that there is no indication of maize cultivation and maize plants
growing up to about 5 feet surrounding the house of the complainant. From the
sketch-map it is seen that the Tea garden is adjacent to the land of the complainant
whereupon the dwelling house is also situated. The sketch-map does not indicate any
other plantation and/or obstruction between the Tea Garden and the courtyard of the
complainant. The sketch-map thus indicates a raised platform made of bamboo near
the place of occurrence. In the sketch-map it is indicated that the accused took the
dao from the said raised platform and dealt blows on the deceased. As such the
evidence of P.W.1 namely--Budhuwa Mura @ Munda and P.W.2 namely--Bilashi
Mahato in their cross-examination deposing that there were maize cultivation
surrounding the house of the complainant and that the maize plants were about 5
feet high is belied by the sketch-map submitted by the police immediately after the
occurrence.
29. The medical evidence although indicates the incised injuries with fracture on
the head and rendering the opinion that the cause of death was due to shock and
haemorrhage as a result of the injury sustained in head, there is no evidence to
suggest as to the nature of the weapon used for the injury sustained which lead to
the death of the deceased. Although the medical report reflects 'incised wound' which
indicates the injuries to have been sustained by sharp object, however, in the absence
of the recovery of the weapon alleged to have been used in the offence, and the
absence of the medical opinion as to the object(s) by which the injuries indicated
would have been sustained, the chain of events and circumstances pointing solely
towards the guilt of the accused beyond reasonable doubt is not complete.
Page No.# 17/24
30. Although in the statements of the accused made under Section 313 Cr. P.C.,
the defence has merely taken a plea of complete denial, such plea of denial alone will
not be sufficient to implicate the accused of the offence alleged unless the
prosecution is able to complete the chain of guilt and/or the sequence of events
pointing solely to the guilt of the accused beyond reasonable doubt.
31. From a perusal of the evidences it is evident that the place of occurrence is in
the courtyard of P.W.1 situated in Bamunigaon under Jakhalabanda Police Station,
District-Nagaon. The witnesses presented by the prosecution except the Investigating
Officer and the medical expert are all villagers residing in the same village as the
complainant, the deceased and the accused. None of the prosecution witnesses have
been able to project any motive of the accused to commit the offence on the
deceased. The evidence of P.W.2 claiming to be the sole eye-witness although later on
being declared Hostile, as well as the evidence of P.W.3 does not establish the
presence of the accused within the vicinity of the place of occurrence beyond
reasonable doubt. From the evidences adduced it is also evident that Gunua, Bilashi,
Bhaleshwari @ Durgeswari were also present within the vicinity of the place of
occurrence along with some other people who were plucking leaves from the garden.
32. The evidence of P.W.1, the complainant, the husband of the deceased does not
indicate any possible reason as to why the accused might have killed the deceased.
The P.W.1, complainant, was admittedly not available at the place of occurrence
during the time of occurrence.
33. The prosecution case is solely based on circumstantial evidence as no eye
witnesses are available. The cardinal principles for conviction of the accused based
solely on circumstantial evidences have long been enunciated by the Apex Court in
the Judgment of Sharad Birdhichand Sarda -Vs- State of Maharashtra
Page No.# 18/24
reported in (1984) 4 SCC 116, which has also been relied upon by the Trial Court
below. The principle laid down in the Judgment is that the circumstances from which
the conclusion of the guilt is to be drawn must be and should be not merely " may be"
fully established. And the facts must be consistent to establish the hypothesis of guilt
of the accused and not any other hypothesis. This hypothesis must exclude every
other possibility except the one to be proved. The chain of evidences must be so
complete as not to leave any reasonable ground for the conclusion consistent with the
innocence of the accused. The Apex Court in this Judgment further held that the
prosecution must stand or fall on its own legs and it cannot derive any strength from
the weakness of the defence. It is not the law that where there is any infirmity or
lacuna in the prosecution case, the same could be cured or supplied by a false
defence or a plea which is not accepted by a court. There is a vital difference between
an incomplete chain of circumstances and a circumstance which, after the chain is
complete, is added to it merely to reinforce the conclusion of the court. These
principles have been subsequently reiterated by the Apex Court in several other
Judgments. Paramjeet Singh @ Pamma Versus State of Uttarakhand
reported in (2010) 10 SCC 439 has very succinctly culled out the principles
regarding conviction based solely on the circumstantial evidences. Relevant
paragraphs are extracted below:-
" 13. Though a conviction may be based solely on circumstantial
evidence, this is something that the court must bear in mind while
deciding a case involving the commission of a serious offence in a
gruesome manner. In Sharad Birdhichand Sarda v. State of
Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC
1622] , this Court observed that it is well settled that
the prosecution's case must stand or fall on its own legs and cannot
derive any strength from the weakness of the defence put up by the
accused. However, a false defence may be called into aid only to
lend assurance to the court where various links in the chain of
circumstantial evidence are in themselves complete. This Court also
discussed the nature, character and essential proof required in a
criminal case which rests on circumstantial evidence alone and held
as under: (SCC p. 185, para 153)
"(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established,
Page No.# 19/24
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by the
accused."
14. A similar view has been reiterated by this Court in State of
U.P. v. Satish [(2005) 3 SCC 114 : 2005 SCC (Cri)
642] , Krishnan v. State [(2008) 15 SCC 430 : (2009) 3 SCC (Cri)
1029] , Ramesh Bhai v. State of Rajasthan [(2009) 12 SCC 603 :
(2010) 1 SCC (Cri) 662] , Subramaniam v. State of T.N. [(2009) 14
SCC 415 : (2010) 1 SCC (Cri) 1392] and Babu v. State of
Kerala [(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179 : JT (2010) 8
SC 560] observing that the evidence produced by the prosecution
should be of such a nature that it makes the conviction of the
accused sustainable".
(Emphasis supplied)
34. The Apex court in the said Judgment has also cautioned regarding the
testimony of Hostile witnesses. The deposition of any Hostile witness is to be
examined cautiously to find out to what extent case of the prosecution is supported
and to the extent it can be relied upon. Relevant paragraphs are extracted below:-
" 15. In State of Gujarat v. Anirudhsing [(1997) 6 SCC 514 : 1997
SCC (Cri) 946] this Court observed as under: (SCC p. 517, para 3)
"3. Every criminal trial is a voyage in quest of truth for public justice
to punish the guilty and restore peace, stability and order in the
society. Every citizen who has knowledge of the commission of
cognizable offence has a duty to lay information before the police
and cooperate with the investigating officer who is enjoined to
collect the evidence and if necessary summon the witnesses to give
evidence. He is further enjoined to adopt scientific and all fair
means to unearth the real offender, lay the charge-sheet before the
court competent to take cognizance of the offence. The charge-
sheet needs to contain the facts constituting the offence(s)
charged. The accused is entitled to a fair trial. Every citizen who
Page No.# 20/24
assists the investigation is further duty-bound to appear before the
Court of Session or competent criminal court, tender his ocular
evidence as a dutiful and truthful citizen to unfold the prosecution
case as given in his statement. Any betrayal in that behalf is a step
to destabilise social peace, order and progress."
16. The fact that the witness was declared hostile at the instance of
the Public Prosecutor and he was allowed to cross-examine the
witness furnishes no justification for rejecting en bloc the evidence
of the witness. However, the court has to be very careful, as
prima facie, a witness who makes different statements at
different times, has no regard for the truth. His evidence
has to be read and considered as a whole with a view to
find out whether any weight should be attached to it. The
court should be slow to act on the testimony of such a
witness; normally, it should look for corroboration to his
testimony. (Vide State of Rajasthan v. Bhawani [(2003) 7 SCC 291
: 2003 SCC (Cri) 1628] .)
17. This Court while deciding the issue in Radha Mohan
Singh v. State of U.P. [(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661]
observed as under: (SCC p. 457, para 7)
"7. ... It is well settled that the evidence of a prosecution witness
cannot be rejected in toto merely because the prosecution chose to
treat him as hostile and cross-examined him. The evidence of such
witness cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent his version is
found to be dependable on a careful scrutiny thereof."
18. In Mahesh v. State of Maharashtra [(2008) 13 SCC 271 : (2009)
3 SCC (Cri) 543] this Court considered the value of the deposition of
a hostile witness and held as under: (SCC p. 289, para 49)
"49. ... If PW 1 the maker of the complaint has chosen not to
corroborate his earlier statement made in the complaint and
recorded during investigation, the conduct of such a witness for no
plausible and tenable reasons pointed out on record, will give rise to
doubt the testimony of the investigating officer who had sincerely
and honestly conducted the entire investigation of the case. In
these circumstances, we are of the view that PW 1 has tried to
conceal the material truth from the Court with the sole purpose of
shielding and protecting the appellant for reasons best known to the
witness and therefore, no benefit could be given to the appellant for
unfavourable conduct of this witness to the prosecution."
19. In Rajendra v. State of U.P. [(2009) 13 SCC 480 : (2010) 1 SCC
(Cri) 1072] this Court observed that merely because a witness
deviates from his statement made in the FIR, his evidence cannot
Page No.# 21/24
be held to be totally unreliable. This Court reiterated a similar view
in Govindappa v. State of Karnataka [(2010) 6 SCC 533 : (2010) 3
SCC (Cri) 184] observing that the deposition of a hostile witness can
be relied upon at least up to the extent he supported the case of
the prosecution.
20. In view of the above, it is evident that the evidence of a
person does not become effaced from the record merely because he
has turned hostile and his deposition must be examined more
cautiously to find out as to what extent he has supported the case
of the prosecution".
(Emphasis supplied)
35. The Apex Court by the said Judgment has also held that mere abscondance
by the accused after commission of crime remaining untraceable for a few days by
itself cannot establish his guilt. It is held that abscondance, by itself, is not conclusive
prove of either guilt or guilty conscience. Relevant paragraphs are extracted below:-
" 31. In Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri)
391 : AIR 1971 SC 1050] , this Court repelled the submissions
made by the State that as after commission of the offence the
accused had been absconding, therefore, the inference can be
drawn that he was a guilty person, observing as under: (SCC p.
84, para 19)
"19. The appellant's conduct in absconding was also relied upon.
Now, mere abscondence by itself does not necessarily lead to a firm
conclusion of guilty mind. Even an innocent man may feel panicky
and try to evade arrest when wrongly suspected of a grave crime
such is the instinct of self-preservation. The act of absconding is no
doubt relevant piece of evidence to be considered along with other
evidence but its value would always depend on the circumstances of
each case. Normally the courts are disinclined to attach
much importance to the act of absconding, treating it as a
very small item in the evidence for sustaining conviction. It
can scarcely be held as a determining link in completing the
chain of circumstantial evidence which must admit of no
other reasonable hypothesis than that of the guilt of the
Page No.# 22/24
accused. In the present case the appellant was with Ram Chandra
till the FIR was lodged. If thereafter he felt that he was being
wrongly suspected and he tried to keep out of the way we do not
think this circumstance can be considered to be necessarily
evidence of a guilty mind attempting to evade justice. It is not
inconsistent with his innocence."
32. A similar view has been reiterated by this Court
in Rahman v. State of U.P. [(1972) 4 SCC (N) 6 : AIR 1972 SC
110] , State of M.P. v. Paltan Mallah [(2005) 3 SCC 169 : 2005 SCC
(Cri) 674] and Bipin Kumar Mondal v. State of W.B. [(2010) 12 SCC
91 : JT (2010) 7 SC 379]
33. Abscondence by a person against whom FIR has been lodged,
having an apprehension of being apprehended by the police, cannot
be said to be unnatural. Thus, mere abscondence by the
appellant after commission of the crime and remaining
untraceable for a period of six days itself cannot establish
his guilt. Absconding by itself is not conclusive proof of
either guilt or of a guilty conscience.
(Emphasis supplied)
36. In view of the facts and the principles culled out by the Apex Court in the
Judgment discussed above, it cannot be said that the circumstances as described in
the Judgment under Appeal, have been held to be established against the accused
person. As it is evident from the evidences as discussed above, there was no eye-
witness barring P.W.2 who had initially deposed that she had seen the accused
quarrelling with the informant in the courtyard of the informant. However, she later
on altered her deposition to testify that she did not see the accused or the informant
rather she heard the voice of the accused from a distance of about 50 feet and could
identify the accused from his voice. The P.W.2 also testified that she and P.W.3, were
both plucking tea leaves in the Tea Garden adjacent to the house of the informant
and upon hearing the hue and cry reached the place of occurrence and found the
deceased in an injured state. This portion of the evidence is not completely supported
by the evidence of P.W.3. From the testimony of P.W.3, it is evident that she had
visited the place of occurrence twice--First when she heard hue and cry she found
the deceased lying on the courtyard and she had poured some water on her mouth
but she did not notice any injury on the deceased. She did not depose about the
Page No.# 23/24
presence of any person there including the accused. Later, upon being called by the
nephew of the informant, she and P.W.2 both went to the place of occurrence and
then saw the deceased in an injured state being put in a handcart by the P.W.1--the
informant and the husband of the deceased. It is also to be noticed from the
evidence presented by the prosecution that there is serious discrepancy in respect of
the presence of the informant and the accused at the place of occurrence. The P.W.1
in his testimony deposed that he was not present at the time of occurrence and that
he was informed about the occurrence only after he reached home and he did not
find the accused in the place of occurrence. P.W.3 in her testimony did not see any
person when she went to the courtyard for the first time except for the deceased,
who was lying on the floor. But there was no injury noticed. She also does not depose
about any quarrels between the P.W.1 and the accused at the place of occurrence or
its vicinity, prior or after the occurrence. What is left is the evidence of P.W.2, who has
been declared Hostile. Even if it is accepted on the basis of the evidence of P.W.2,
that the accused was indeed present around the time of occurrence, in the absence
of any other explanation and/or any other corroborating evidence it cannot be said
that the circumstances presented by the prosecution have convincingly satisfied the
hypothesis of the guilt of the accused and not any other hypothesis.
37. In view of the above discussions we are satisfied that the circumstances
presented by the prosecution seeking to establish the hypothesis of the guilt of the
accused cannot be said to have been established beyond reasonable doubt on the
basis of the evidences adduced in the Trial. We are satisfied that the learned
Additional Sessions Judge, Nagaon was not justified in convicting the appellant by
accepting the hypothesis of guilt of the accused, solely relying upon the evidence
adduced by the P.W.2 and who was also declared Hostile. We hold that the evidences
presented by the prosecution before the Trial Court were not sufficient to come to the
sole hypothesis pointing towards the guilt of the accused/appellant beyond
reasonable doubt.
Page No.# 24/24
38. We are conscious of the heinous crime committed leading to the death of the
deceased and are equally not oblivious to the pain and suffering of the relatives of
the victims. However, in the absence of conclusive evidences leading solely to the
guilt of the accused we have no other option but to interfere with the conviction of
the accused by the Trial Court below. We concur with the ratio laid down by the co-
ordinate Bench of this court in Sikandar Ali -Vs- State of Assam reported in
2010 (3) GLT 538 relied on by the learned Amicus to be applicable in this case also.
39. For all the aforesaid reasons, the conviction of the accused by the learned
Sessions Judge, Nagaon vide Judgment and Order dated 20.06.2017 under Section
302 of Indian Penal Code is hereby interfered with, set aside and quashed. Appeal is
accordingly allowed.
40. The accused is directed to be set free forthwith.
41. Send a copy of this Judgment to the Superintendent, District Jail, Nagaon, who
will furnish a copy of the same to the accused.
42. Send down the LCR with a copy of the Judgment.
43. Before parting with the case record, we would like to put on record our
appreciation of the learned Amicus Curiae, Mr. Azad Ahmed, Advocate for rendering
his valuable assistance to the court during the hearing of the present Criminal Jail
Appeal. He may be paid the remuneration as payable presently by the Assam State
Legal Service Authority.
JUDGE JUDGE
Comparing Assistant
