Balu Dhan vs The State Of Assam And Anr
2021 Latest Caselaw 604 Gua

                                                                      Page No.# 1/21

GAHC010212112019




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : CRL.A(J)/77/2019


            BALU DHAN
            S/O. LT. DEBARU DHAN, R/O. DEOBIL GAON, P.S. TENGAKHAT, DIST.
            DIBRUGARH, ASSAM.



            VERSUS


            THE STATE OF ASSAM AND ANR.
            REP. BY PP, ASSAM.

            2:SRI BOGAPANI DHAN
             S/O-LATE MANGRU DHAN
            VILL-DEOBIL GAON
             PS-TENGAKHAT
             DIST. DIBRUGARH
            ASSAM



Advocate for the Petitioner    : MR. N K BARUA, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT AND ORDER (Oral) Page No.# 2/21

Date : 22-02-2021

(Suman Shyam, J)

Heard Mr. N. K. Barua, learned Amicus Curiae appearing for the appellant. Also

heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam, appearing for the

State. None has appeared for the informant/ respondent No.2.

2. This appeal from Jail is directed against the judgment and order dated

24.04.2019 passed by the learned Sessions Judge, Dibrugarh, in Sessions Case

No.22/2016 convicting the appellant under section 302 of the Indian Penal Code

(IPC) for committing murder of his wife Lakhi Dhan and sentenced him to undergo

imprisonment for life and also to pay fine of Rs.500/- with default clause.

3. The prosecution case, in brief, is that the accused/appellant Balu Dhan had

murdered his wife Lakhi Dhan and buried the dead body in the premises of his house

under the old latrine. Since 12.11.2015 Lakhi Dhan was missing. After a frenetic search

and on the basis of extra-judicial confession made by the appellant the dead body

of the victim was eventually dug out by the police from place where it was buried.

4. On 15.11.2015, an ejahar was lodged with the Officer-in-charge of Tengakhat

Police Station by Sri Bogapani Dhan (PW-1) reporting the incident to the police with a

request to arrest the accused and investigate the matter. Based on the said ejahar,

Tengakhat Police Station Case No.65/15 was registered under Section 302/201 of the

Indian Penal Code. The responsibility for carrying out investigation in the police case

was entrusted upon S.I. Numal Borah. During the course of investigation the

Investigating Officer (I.O.) had conducted inquest on the body and the dead body Page No.# 3/21

was also forwarded for autopsy examination. The I.O. had prepared a sketch map of

the place of occurrence, recorded the statements of the witnesses and thereafter,

submitted charge-sheet against the accused under Section 302/201 of the IPC.

Based on the charge-sheet submitted by the I.O. charge was framed against the

appellant under section 302/201 IPC which was read over and explained to the

accused but since the accused had pleaded not guilty, the matter was sent up for

trial.

5. By the impugned judgment and order dated 24.04.2019, the learned Sessions

Judge had convicted the appellant primarily by taking note of the extra-judicial

confession made by the appellant admitting to the fact that he had killed his wife

and also pointing out the place where the dead body was buried. The learned

Sessions Judge was also of the view that the accused was last seen together with his

wife i.e. the deceased immediately before her disappearance and therefore, the

conviction was also partly based on "last seen together" theory which was held to be

proved by the prosecution.

6. In order to establish the charge brought against the accused the prosecution

side had examined as many as 11 witnesses. However, the defence side did not

adduce any evidence.

7. PW-1 Bogapani Dhan is the informant in this case and in his deposition, the

witness had stated that he knew the accused Balu Dhan. The house of the accused is

situated in front of his house and there is a road between their houses. According to

PW-1, deceased Lakhi Dhan is the wife of the accused. The incident took place Page No.# 4/21

during the Kali Puja of 2015 on which date, Kali Puja was celebrated in front of the

house of Balu Dhan but his wife Lakhi Dhan was not seen in the Puja Mandap. On the

next day also they did not see Lakhi Dhan. On the 3 rd day one Bishal Oriya (PW-9)

had asked the appellant Balu Dhan about his wife and then he had stated before

Bishal that he had murdered his wife Lakhi Dhan and buried her in the old latrine of his

house. Later on, Bishal had told the PW-1 about the death of Lakhi Dhan and also

informed the Gaonburah Buleswar Konwar (PW-2) and one member of "Asha Karmi"

Sri Shyamal Saluk (PW-4). Then the Gaonburah and the Asha Karmi, accompanied by

several villagers, went to the house of Balu Dhan and asked about his wife when the

accused Balu had showed the latrine of his house where he had buried the

deadbody of his wife after killing her. At that time, the PW-1 was also present. PW-1

had also stated that the Gaonburah had informed the police of Tengakhat Police

Station and handed over Balu to the police. During investigation, police came to the

place of occurrence and recovered the dead body from the latrine where the

accused had buried his wife.

8. During his cross-examination, PW-1 had stated that he was not present at the

time of recovery of the dead body and that he cannot say wherefrom the dead

body was recovered. PW-1 had also stated that the house of Balu Dhan is situated in

the field and there is no other house over there. People used to go to the paddy field

by the side of the house of Balu Dhan. The witness had also stated that he came to

know that the police recovered the dead body, as shown by the Gaonburah and he

did not know who killed the deceased person and how she was killed. He lodged the Page No.# 5/21

F.I.R. as per instruction of the Gaonburah. PW-1 had also stated that he heard that

the deceased was involved in theft at the neighbouring houses of the village and

once the deceased person had sold a cow which was stolen from her neighbour. On

several occasions public meetings were held in connection with the theft of the cow.

9. PW-2, Buleswor Konwar is the Gaonburah (village headman) of Deobil village.

In his testimony, PW-2 has stated that he knew the accused person and the

deceased Lakhi Dhan was the wife of the accused. On 15.11.2015 when he was at his

home, at that time PW-1 and Lokhai Dhan (PW-7) came to his house and informed

him that Balu Dhan had told that he killed his wife Lakhi Dhan and buried her in the

latrine of his house. He then asked them to call the accused Balu Dhan to his house

and told that he will be going to Balu Dhan's house within a short time. PW-2 had also

stated that, he then went to the house of Balu Dhan along with several other villagers

and asked him about his wife. Then the accused Balu Dhan told before him and the

villagers present there that he had murdered his wife and buried her in his house

compound. He, along with other villagers, showed the place where the accused had

buried the dead body and informed the Circle Officer of Tengakhat and Police

officer of Tengakhat Police Station. The police from Tengakhat Police Station had

asked him to bring the accused person to the Police Station. Accordingly, he took the

accused along with two other persons in two bikes to the Tengakhat P.S. and the

police took him into custody. The police from the Tengakhat P.S. went to the place of

occurrence and he also accompanied them. By the time the Circle Officer had also

arrived in the house of Balu Dhan and he, along with the villagers, had shown the

police where the deceased was shown to have been buried by Balu Dhan. Police Page No.# 6/21

then recovered the dead body of Lakhi Dhan from the place which was shown by

the accused person. After recovery of the dead body, inquest was done over the

same by the police where he saw a "gamocha" was wrapped in the neck of the

deceased. After inquest, police took the dead body. Ext-3 is the inquest report and

Ext-3(1) is his signature. The witness has also stated that during investigation his

statement was recorded by the Magistrate under Section 164 Cr.P.C. Ext-4 is the

statement bearing his signature.

10. PW-2 also deposed that Bogapani Dhan (PW-1) and Lakhai Dhan (PW-7) had

informed him at about 8.00 a.m. of 15.11.2015 but he had not stated before the

police about asking them to bring the accused person from his work place. PW-2 had

also stated that he had not stated before the Magistrate of having informed the

Circle Officer along with Tengakhat Police Station and that at the time of recovery of

the dead body, Balu Dhan was not present. During his cross-examination PW-2 also

confirmed that he had once held a meeting regarding theft of cow by the deceased

in the village.

11. PW-3, Sri Tulaprasad Handique, was the Gaonburah of neighbouring village

and in his deposition this witness had stated that on 15.11.2015, the Gaonburah of

Deobil village Sri Buleswar Konwar (PW-2) had rang him up and informed about the

incident and asked him to come to his village. Accordingly, PW-3 had reached the

Deobil Village at about 12 noon. When he reached the place of occurrence he saw

that police along with the Magistrate was present there and they were digging out

the dead body of Lakhi Dhan from a latrine at the back side of the house of the Page No.# 7/21

accused. PW-3 had stated that he saw the dead body of Lakhi Dhan covering her

face with a cloth. There he came to know from the Gaonburah of that village that

accused Balu Dhan had killed his wife and buried the body in the latrine at the back

side of his residence. After that the police recorded his statement. Later on, his

statement was also recorded by a Judicial Magistrate under Section 164 Cr.P.C and

Ext-5 is the said statement. During his cross-examination PW-3 had stated that after

returning from Police Station, Bogapani Dhan (PW-1) had shown the police the place

where the dead body was buried.

12. PW 4, Sri Shyamal Saluk, is a neighbour of the deceased Lakhi Dhan and

appellant Balu Dhan. In his deposition, the PW-4 had stated that he knew the

informant Bogapani Dhan and also knew deceased Lakhi Dhan. The deceased was

the wife of the accused. PW-4 has stated that on 15.11.2015, he went to the house of

the accused person as the Gaonburah was also present there, at about 8.00 a.m.

One Manu Jajo, Dipak Jojo and three other persons were also present. Then the

Gaonburah asked the accused person as to the whereabout of his wife. The accused

person confessed in front of the Gaonburah that he had killed his wife Lakhi Dhan

and that he had buried the dead body in the back side of his residence. PW-4 had

stated that he was present when the confession was made by the accused in front of

the Gaonburah. However, during his cross-examination PW-4 had stated that he did

not clearly hear the discussion between the Gaonburah and accused Balu Dhan.

Then he along with the Gaonburah informed the police. When the Gaonburah had

called Balu Dhan, he waited for 15 minutes near the place of occurrence as Balu

Dhan was not present in his residence. PW-4 had also deposed during his cross-

Page No.# 8/21

examination that he was present when Balu Dhan showed him the place where the

dead body was buried.

13. PW-5 is the doctor who was on duty in the Department of Forensic Medicine,

Assam Medical College, Dibrugarh on 15.11.2015. PW-5 had carried out post-mortem

examination in the dead body of the deceased and thereafter submitted post

mortem report i.e. Ext-6. The finding of the post-mortem report are as follows :-

"I- EXTERNAL APPEARANCE :

1. Condition of subject stout emaciated, decomposed etc :

A female dead body wearing a blouj, mekhela and petticoat, body and cloth stained with soil and sand. Face and abdomen bloated. Skin pilled at places. A tuff of synthetic hair (Tarshell) found around the nect (ligature material).

2. Wounds - position and character :

Injuries :-

1. Lacerated injury of size 3 cm x 1 x 3cm over left parietal region of scalp;

2. Contusion of size 5 cm x 4 cm after reflection of the scalp over left parietal region;

3. Bruise Position size and nature :

4. Mark of ligature on neck dissection, etc.

Ligature mark : A transverse ligature mark, completely encircling the neck, below the thyroid cartilage found. The base of the mark is grooved, dark brown in colour and parchment like. The area around the ligature mark is contused and abraded. The underlying subcutaneous tissue of the mark is found to the contused. Size of the mark is 30 cm x 2 Page No.# 9/21

cm. Hyoid bone not fractured. The knot the ligature material was single and was present in front of the neck at mid line"

The doctor has opined that the deceased had died due to constriction of the

neck by application of ligature material, which was ante mortem and homicidal in

nature. All the injuries were ante mortem and caused by blunt force. Approximate

time since death was 2 to 3 days.

14. PW-6, Sri Juan Machi Dhan, is another prosecution witness who had deposed

that the deceased had died about two years back. On the day of the incident there

was Kali Puja in their house and when they did not find Lakhi Dhan they asked the

accused about his wife when the accused had replied that he had killed his wife and

buried her under the latrine in his house compound. PW-6 has also stated that when

the accused had admitted that he had killed his wife, Lakhoy (PW-7) was present. The

Gaonburah was informed about the incident and accordingly he came to the place

of occurrence. The Gaonburah then informed the police about the incident and the

police dug and recovered the dead body. Police had also recorded his statement in

this connection.

15. During his cross-examination, PW-6 has stated that he was not present when

the dead body was exhumed but he had heard that the body was recovered. The

witness had also stated that all the villagers had complaints against Lakhi Dhan for

her frequent involvement in thefts in the village. Several meetings had already been

held in the village because Lakhi Dhan used to commit thefts. According to PW-6,

there is a paddy field behind the accused person's house which adjoins a tea

garden and there is a road on the side of accused person's house which is a busy Page No.# 10/21

road. PW-6 has stated that he had not seen as to who had killed the wife of the

accused. This witness has, however, denied the suggestion that the villagers had killed

Lakhi Dhan as she used to commit theft frequently creating nuisance.

16. PW-7 i.e. Sri Lokhoi Dhan, is another cousin of the accused and he has

deposed that he knew the informant Bogapani who is his uncle and deceased Lakhi

Dhan was the wife of the accused. According to PW-7, on the day of the incident,

people gathered in the accused person's house at about 12/12.30 p.m. The

Gaonburah (PW-2) had asked him to stop. When the Gaonburah asked the

accused, he had admitted to killing his wife and the accused had shown the place

where he had buried his wife. The accused showed the abandoned latrine to the

Gaonburah in his house compound. PW-7 has stated that he was present when the

accused had admitted that he had killed his wife before the Gaonburah. When the

police came, he had dug the place, where the dead body was buried, as per

instruction of the police. He had seen the body of the victim.

17. PW-8, Johan Kerkata, is also resident of the same village, who has deposed

that he knew deceased Lakhi Dhan. PW-8 has stated that one morning at about 7.00

a.m. a few days after Durga Puja the accused person's wife (Lakhi Dhan) came

running to his house on being pursued by the accused who was wielding a "Khamti

Dao" (sharp dao) and chasing her. Lakhi Dhan entered his house through the back

door and cried "Bochao... Bochao..." (save me.... save me ...). At that time, PW-8

claims to have dissuaded the accused and then the accused and his wife left for

work. After Lakhi Dhan's death, police had called and asked him about the incident.

Page No.# 11/21

During his cross-examination, PW-8 had, however, admitted that he did not state

before the police that one morning at about 7.00 a.m. the accused Balu Dhan had

chased his wife with a sharp dao and his wife came running to his house crying

"Bochao... Bochao..." (save me.... save me ...). PW-8 had also stated that he could

not remember from whom he had heard that the accused had killed his wife. This

witness has, however, admitted that he had heard that the accused person's wife

had the habit of committing theft.

18. PW-9, Sri Bishal Oria, is the witness before whom the accused is stated to have

initially confessed his guilt. In his deposition, PW-9 had stated that the accused was

working in his house. He noticed that the accused person was depressed and when

he asked the reason for his depression the accused had admitted that he had killed

his wife and buried her in the backyard of his house. PW-9 has stated that he then

informed the student union member Shyamal Saluk (PW -4) and the student leader

informed the police. The police later recorded his statement.

19. PW-10, Sri Moon Gogoi, is the Circle Officer of Tengakhat Revenue Circle, in

whose presence, the dead body was exhumed from a pit in the backside of the

house of Balu Dhan. PW-10 had stated that both the hands of the deceased were

tied to the back with a plastic rope and an orange colour shawl and a gamusa was

found around the neck. The body was found in the pit with both the legs folded,

hands tied to the back. PW-10 had performed the inquest on the dead body and

had deposed that he had found injuries on the head and the left eye. No sign of

other injuries were apparently noticed on the dead body.

Page No.# 12/21

20. PW-11, Numal Chandra Bora, is the Investigating Officer (I.O.) in this case and

he has deposed that after getting the information, the Officer-in-Charge of

Tengakhat P.S. registered G.D. Entry No.285 dated 15.11.2015 and the O/C had also

informed the Circle Officer, Tengakhat Revenue Circle and asked him to proceed to

the place of occurrence. Then he, along with S.I. Biren Baruah and staff, proceeded

to Deobil Gaon. On the way to Deobil Gaon, he met the accused Balu Dhan who

was being taken by the villagers to the Police Station and he asked them to go to the

Police Station. When he reached the place of occurrence, he was shown a pit by Sri

Tula Prasad Handique (PW-3), Sri Bogapani Dhan (PW-1) and Sri Buleswar Konwar and

others, which was within the premises of the accused person's house. The body was

covered by dried branches, twigs and grass and was camouflaged in a manner so as

to make the pit appear like normal ground of the premise. PW-11 has also stated that

the body was exhumed in his presence, inquest was held by the Circle Officer and

the body was identified by Bogapani Dhan and thereafter forwarded for post-

mortem examination.

21. In his statement recorded under Section 313 Cr.P.C. the accused/ appellant

denied all the circumstances put to him including the allegation that he had killed his

wife. He has stated that his wife was not a woman of good character. She went on

the previous night on the pretext of going out for work and may be somebody had

killed her and buried her. He claimed to be innocent by stating that he had not killed

her. The accused had also stated that the Gaonburah had taken him to the Police

Station but he did not know from where, the dead body of his wife was recovered

since he was not present at that time.

Page No.# 13/21

22. Upon analysing the evidence available on record, the learned Sessions Judge,

Dibrugarh was of the opinion that the extra-judicial confession made by the accused

admitting that he had killed his wife and buried the body in the back of his premises

stood fully established from the testimony of PWs-1, 2, 4, 6, 7 and 9. Moreover, by

taking note of the evidence adduced by the PW-8, the learned trial court has also

held that the circumstances of the "last seen together" theory also stood established

in this case. However, the accused person had failed to discharge his burden cast

under Section 106 of the Evidence Act by failing to explain as to how the dead body

of his wife could be found buried in the backyard of his premises. Holding that the

prosecution has succeeded in establishing the charge brought against the accused

beyond all reasonable doubt based on circumstantial evidence, the appellant was

convicted under section 302 IPC and sentenced to undergo imprisonment for life and

also to pay fine of Rs.500/- with default clause.

23. Law is well settled that extra-judicial confession is a weak piece of evidence

and the same can be relied upon for conviction if it is corroborated by other

evidence on record. In the case of Ishwari Lal Yadav and another Vs. State of

Chhattisgarh reported in (2019) 10 SCC 437 the Hon'ble Supreme Court has made the

following observations :-

"21. The confessional statements made to the police by the appellants, cannot be the basis to prove the guilt of the accused but at the same time there is no reason to discard the confessions made to the independent witnesses at the time when Chirag's body was found, prior to the arrival of police. It is true that extra-judicial confession, is a weak piece of evidence but at the same time if the same is corroborated by Page No.# 14/21

other evidence on record, such confession can be taken into consideration to prove the guilt of the accused. In the case in hand, the evidence from independent witnesses is in one voice and consistent. The medical evidence on record also substantiated the case of the prosecution. In addition to the same, PW 2 and PW 3, who are the parents of the deceased have identified the clothes, which the deceased child was wearing on the date of missing. It is also clear from the evidence that the skeletal remains were removed. They have also found the cloth pieces, attached to skeletal remains. The colour of such cloth pieces was tallied with the description in the missing report lodged by PW 2 earlier on 4-3-2010. As such it is clearly proved beyond any reasonable doubt that the appellants are responsible for the offence alleged against them."

24. Therefore, the issue that would arise for consideration of this Court in the

present proceeding is as to whether, the extra-judicial confession stated to have

been made by the accused stood corroborated from the other evidence available

on record so as to sustain his conviction. We would also be called upon to examine

as to whether the finding recorded by the learned trial court to the effect that the

victim was last seen together with the accused before going missing has been

established by cogent evidence brought on record.

25. Let us now carefully examine the testimony of the witnesses PWs1, 2, 3, 4, 7 and

9 so as to ascertain as to whether there was in fact any extra-judicial confession

made by the accused/appellant.

26. PW-1 is the informant in this case and according to this witness, the accused

had stated before the PW-9 that he had murdered his wife and buried her in the old Page No.# 15/21

latrine of his house. PW-9 had told him about the death of Lakhi Dhan and also

informed the Gaonburah (PW-2) and PW-4. Then the PW-2 and PW-4 and other

villagers went to the house of Balu Dhan and asked about his wife. However, PW-2

has stated that it is the PW-1 and PW-7 Lakhoi Dhan who came to his house and

informed that Balu Dhan had killed his wife Lakhi Dhan and buried her in the latrine of

his house. The PW-2 then asked PWs-1 and 4 to call the accused person to his house

but the said fact has neither been mentioned by the PW-1 nor the PW-7. PW-1 has

stated that PW-9 had informed the PW-2 and PW-4 about the death of Lakhi Dhan on

being confessed by the accused, but the PWs-4 and 9did not say so in their

testimony.

27. PW-2 had stated that he had informed the Tengakhat Police Station and the

Circle Officer (PW-10) about the incident, more particularly where the body was

shown to have been buried but PW-10 in his deposition had stated that on 15.11.2015

he had got the information from the Tengakhat Police Station for performing inquest

on a female dead body at Deobil Gaon in the compound of Balu Dhan.

28. PW-3, Tulaprasad Handique, had deposed that on 15.11.2015 he received a

call from the PW-2 informing him about the incident with a request to come to his

village and accordingly PW-3 had reached Deobil village at 12 noon. Upon reaching

the place of occurrence he saw that the police along with the Magistrate were

present and they were digging out the body of Lakhi Dhan from latrine in the

backside of the house. There, he came to know from the Gaonburah and other

villagers that accused Balu Dhan had killed his wife. However, the I.O. (PW-11) has Page No.# 16/21

deposed that the place of occurrence, was a pit shown by three persons, including

PW-3 Tulaprasad Handique. The pit was obviously shown to the police before the

process of digging out the body had commenced. Therefore, if PW-3 had reached

the place of occurrence at 12 noon and saw that the police and the Magistrate

were present and digging out the body, he could not have shown the pit to the

police as stated by the PW-11.

29. According to PW-1, the accused had confessed to have killed his wife before

the PW-9, Bishal Oria, who had informed the informant (PW-1) but the PW-9 Bishal Oria

did not say so in his testimony. According to PW-9, after the accused had confessed

to have killed his wife and buried her in the backyard of his house he had informed

PW-4 Shyamal Saluk who had then informed the police. However, PW-4, Shyamal

Saluk, did not say so in his testimony. Rather, it appears from the evidence on record

that the PW-4 had reached the house of the accused at around 8.00 a.m. on

15.11.2015 when he saw that the accused person had confessed in front of the

Gaonburah that he had killed his wife and buried the body in the backside of his

residence in the old latrine. The testimony of PW-9, therefore, contradicts the

evidence adduced by PWs-1, 2 and 4 and presents a completely different picture.

30. PW-6, Johan Kerkata, had stated that the accused had confessed in his

presence and in the presence of PW-7 that he had killed his wife and buried the

body. However, the PW-7 has given a completely different version where he has not

even mentioned about the presence of PW-6 when the accused had allegedly

confessed to have killed his wife. On the contrary, as per the version of PW-7, on the Page No.# 17/21

date of the incident at about 12/12.30 p.m. he saw people gathered around the

house of the accused person, when the Gaonburah had asked him to stop. The

Gaonburah (PW-2) then asked the accused when he admitted that he had killed his

wife and the accused also showed the place where he buried his wife. But the PW-2

did not mention about the presence of PW-6 when the accused had allegedly made

the confession. Moreover, if the PW-6 had reached the place of occurrence i.e. the

house of Balu Dhan at around 12/12.30 p.m. then the accused could not have made

the confession in his presence because as per the testimony of PW-3, the digging had

started at around 12 noon when he had reached the place of occurrence and

before that, the accused was handed over to the police by the PW-2 and the

villagers and he was detained in the Police Station.

31. PW-9 has not stated the time and the date on which the accused had

allegedly confessed to have killed his wife and buried her in the backyard of his

house. However, the statement of PW-9 that he had informed Shyamal Saluk, the

student leader, who, in turn, had informed the police clearly contradicts the

testimony of PW-10 who stated that he received the information from the Tengakhat

Police Station.

32. PW-3 has deposed that PW-1 had shown the police the place where the dead

body was buried. But the PW-1 did not say so. Instead, the PW-1 had stated that he

did not know wherefrom the dead body was recovered.

33. From the above analysis, it would be established beyond any shadow of

doubt that there are major contradictions of serious nature in the testimony of PWs-1, Page No.# 18/21

2, 4, 6, 7 and 9 as regards the manner in which the accused had confessed to killing

his wife and each of these witnesses have given a different version which were

mutually inconsistent. In other words, the witnesses PWs-1, 2, 4, 6, 7 and 9 did not

speak in one voice nor did they corroborate the place, time and manner in which

the accused is stated to have confessed to his guilt. Therefore, it is evident that the

prosecution has not only failed to prove the extra-judicial confession of the accused

but there is also no corroborating evidence to show that the accused had killed his

wife.

34. Coming to the evidence as regards the circumstances pertaining to the "last

seen together" theory, the learned Sessions Judge had held that the accused was

last seen together with the deceased when he had chased his wife into the house of

PW-8 with a sharp dao. However, PW-8 did not state so before the police while

recording the statement under Section 161 Cr.P.C. Therefore, there is improvement in

the evidence of PW-8 which makes it wholly unreliable. Save and except the

testimony of PW-8, there is no other evidence to even remotely indicate that the

accused was "last seen together" with his wife before the incident took place. If that

be so, the finding of the learned Sessions Judge that the circumstances of "last seen

together" stood established through the prosecution evidence is clearly erroneous

and in our view, calls for interference by this Court.

35. It is to be noted herein that the appellant had all along denied the charge

brought against him and has stated that his wife was of a doubtful character. There

are evidence on record to show that the villagers were annoyed with her for the Page No.# 19/21

various incidence of theft carried out by the deceased wife of the appellant.

Moreover, it has also come out from the testimony of PWs-6 and 7 that there is a

paddy field behind the house of the accused adjoining the tea garden and there

was a busy road giving open access to the villagers to that part of the residential

premise of the accused. Therefore, it was necessary for the prosecution side to lead

evidence so as to establish those circumstances so as to eliminate the possibility of

the deceased having been murdered by some unknown person and her body being

buried in the backyard of the appellant's house under the old latrine so as to mislead

the police. However, the prosecution has failed to do so in this case.

36. It also appears from the evidence on record that save and except the

Gaonburah, none else seems to be clear about the actual version given by the

appellant/accused in his the extra-judicial confession is concerned. It has come out

from the evidence adduced by the PW-1 that even the FIR was written as per the

instruction of the Gaongurah (PW-2). The PW-4, who had deposed regarding the

confession made by the accused before the Gaonburah, had later on stated in his

cross-examination that he has not clearly heard as to what was the discussion

between the Gaonburah and Balu Dhan. As such, there are serious contradictions in

the evidence adduced by the PWs-1, 2, 4, 6 and 7. The testimony of PWs-1, 2, 4, 6, 7

and 9 does not at all inspire confidence of this Court, in so far as the plea of extra-

judicial confession is concerned.

37. It has also come out from the evidence on record that on 15.11.2015, in the

morning hours, before digging of the deadbody was started, the accused was taken Page No.# 20/21

to the Police Station by the Gaonburah and some un-named villagers and thereafter,

he was kept in the Police Station. There is no explanation as to why, no attempt was

made to record the confessional statement of the accused under Section 164 Cr.P.C.

in front of a Magistrate. If the accused had, in fact, confessed to have killed his wife

before so many persons, there is no reason for us to presume that he would refuse to

record his confessional statement before the Magistrate in accordance with law.

38. In Sharad Birdhichand Sarda Vs. State of Maharastra reported in (1984) 4 SCC

116 the Hon'ble Supreme Court has laid down the cardinal principles for conviction

on the basis of circumstantial evidence. It was held that the prosecution must fully

establish on circumstantial evidence all facts to exclude every possible hypothesis

except the one to be proved and that there must be a chain of evidence so

complete so as not to leave any reasonable ground for the conclusion consistent

with the innocence of the accused. The prosecution must show that in all human

possibility, the act must have been done by the accused. However, as noticed

above, such chain of circumstances could not be proved by the prosecution.

39. Having regard to the evidence on record there is considerable doubt as to the

culpability of the accused and therefore, as per the salutary principle in criminal

jurisprudence the benefit of doubt, if any, must go in favour of the accused.

40. For the reasons stated herein above, we are unable to agree with the opinion

expressed by the learned trial court that the charge brought against the accused has

been proved beyond all reasonable doubt. Rather, we are of the opinion that the

prosecution has failed to establish the charge brought against the appellant beyond Page No.# 21/21

reasonable doubt by leading cogent evidence.

41. In view of the above, the judgment and order dated 24.04.2019 passed by the

learned Sessions Judge, Dibrugarh in Sessions Case No.22/2016 is hereby set aside.

The conviction of the appellant under Section 302 IPC stands interfered with. The

appellant stands acquitted.

We are informed that the appellant is in Jail since his arrest on 15.11.2015. As

such, we direct that the appellant be forthwith released from Jail if his detention is not

required in connection with any other case.

The appeal stands allowed.

Before parting with the record, we wish to place on record our appreciation for

the services rendered by Mr. N. K. Barua, learned Amicus Curiae, by rendering his

assistance to the Court for disposal of the appeal and direct the Registry to make

available to him, just remuneration, as per the notified rate.

Send back the LCR.

                                       JUDGE                           JUDGE

Comparing Assistant