Bikash Routia vs The State Of Assam And Anr
2021 Latest Caselaw 2075 Gua

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GAHC010212072019




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

                               Case No. : CRL.A(J)/73/2019

            BIKASH ROUTIA
            JORHAT, ASSAM.



            VERSUS

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

            2:JOHON ROUTIA
             S/O- LATE BUDHUWA ROUTIA

            VILL- KHANIKAR T.E.
            JAMUGURI
            P.S.- TEOK
            DISTRICT- JORHAT
            ASSAM

Advocate for the Petitioner   : MR A KALITA, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 06.09.2021 (P.J. Saikia, J)

Heard Mr. A. Kalita, the learned Amicus Curiea, appearing for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam.

2. This is an appeal under Section 374(2) of the CrPC challenging the Judgment and Order dated 19.03.2019 and 25.03.2019 passed by the learned Additional Sessions Judge, Jorhat in Sessions Case No. 107/2018. The appellant was convicted under Section 302 of the Indian Penal Code and for that offence he was sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine, the appelant was sentenced to undergo Simple Imprisonment of 5 (five) months.

3. The factual matrix giving rise to the prosecution case is - Shri Jahan Rautia (PW-1) married for the second time. From his earlier marriage PW-1 had two sons, namely, Anil Rautia (PW-3) and the appellant. All of them were staying together in the same house.

4. On the day of the occurrence, PW-1 was sleeping. The festival of Holi was celebrated on that day. While the PW-1 was sleeping, his wife Sanju Rautia was cooking meal in the kitchen. Be that as it may, in the next morning PW-1 woke up and saw that his wife Sanju Rautia was lying dead in the kitchen and at that time, he had noticed that his wife's head was crushed. He claimed that the appellant had told him that he had caused the death of the deceased by hitting her head with a hoe.

5. The PW-1 had lodged an FIR before Police stating that his youngest son/ appellant has caused death of the deceased by hitting her head with a hoe inside the house. During the period of investigation, the deadbody of the deceased was subjected to post-mortem examination. The relevant part of the postmortem examination report is quoted under:

"Injury:

Crush injury is present over head and upper part of fact. Skin, soft tissues, Page No.# 3/9

bones, vessels, nerves, meninges and brain are all crushed and partly missing. Antemortem blood clots are adherent to the margins which resist washing with flowing water.

An incised wound of size 2cm x 0.5 cm x muscle deep is present over dorsum of right hand near wrist joint. The wound is red in colour."

6. Finally, on conclusion of routine investigation, Police filed the chargesheet against the appellant.

7. On his appearance before the trial Court, the charge under Section 302 of the Indian Penal Code was formally framed against the appellant. On being read over the said charge, the appellant pleaded not guilty and claimed to stand the trial.

8. In course of the trial, as many as 9 (nine) prosecution witnesses, including the Doctor (PW-4) who had conducted postmortem examination upon the deadbody of the deceased and the Police Investigating Officer (PW-9) were examined. Appellant was examined under Section 313 of the CrPC. All the so-called incriminating circumstances were put before the appellant. The appellant, in his statement under Section 313 of the CrPC, has stated that on the day of occurrence he took dinner in the house of a person called Omila Rautia and after that, he returned home and lit the earthen lamp. Appellant has stated that in the light of the earthen lamp he had noticed that his stepmother/deceased was lying in the kitchen in an injured state. The appellant further stated that he went to the room of his father/PW-1 and then saw that he was sleeping in an intoxicated condition. The appellant further stated that at that time his elder brother/PW-3 was not present in the house and, therefore, he simply went to his room to sleep. The appellant claimed that he has no knowledge as to who has caused the death of the deceased.

9. The appellant did not adduce any defence evidence.

10. On the basis of the evidence on-record, the trial Court passed the impugned judgment and order.

11. We have carefully gone through the prosecution evidence.

12. The PW-1 has stated in his evidence that on the night of occurrence he was sleeping. He stated that the Holi festival was celebrated on that day and while he was sleeping his deceased Page No.# 4/9

wife was cooking meal in the kitchen. PW-1 has further stated that in the next morning when he woke up, then only he noticed that his wife was lying in the kitchen and he saw that the skull of his wife was badly crushed with a hoe. According to PW-1, the appellant was present in the house at the time of occurrence but his other son/PW-3 was not present in the house. PW-1 has claimed that the appellant confessed before him that he had crushed the head of the deceased with a hoe. PW-1 has disclosed that by that time his eldest son/PW-3 had arrived home and on seeing the incident, he went to the Police Station. PW-1 lastly disclosed that the hoe which was used to kill his wife was seized by Police.

13. In his cross-examination, the PW-1 has admitted that while giving statement to the Police he did not claim that his other son/PW-3 reached home at 3 AM. PW-1 further admitted that he simply told Police that the PW-3 reached home. PW-1 has stated that the houses of Ramesh Rautia, Chotu Rautia, Sukhalal Gariak, Ramesh Bariak etc. are situated near his house but it is not possible for them to hear anything if any commotion takes place in his house.

14. The 2nd Prosecution Witness is Paresh Rautia. He is the uncle of the appellant and he resides near his house. PW-2 has stated that the offence took place at night and in the next morning when he was returning after attending the call of the nature, he noticed a gathering of 5/6 persons in front of the house of the appellant. PW-2 has disclosed that then only he came to know that the appellant had caused death of the deceased by hitting her head with a hoe. PW-2 has stated that while he was standing in the gathering, then the appellant had confessed before them that he had hit the deceased with a hoe.

15. During cross-examination PW-2 has admitted that he never stated before Police that the appellant had confessed that he had killed the deceased with a hoe.

16. The third Prosecution Witness (PW-3) is the eldest son of PW-1. He has stated in his evidence that on the day of occurrence Holi festival was celebrated and on that day at about 11 PM he returned home. PW-3 has stated that on reaching home on that day he saw that the deceased was lying dead in the kitchen. According to PW-3, his father/PW-1 subsequently told him that the appellant had hit the head of the deceased with a hoe. PW- 3 has disclosed in the next morning that he had noticed injury on the head of the deceased. The PW-3 has also stated that Police had seized the hoe which was used by the appellant to kill the deceased.

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17. In his cross-examination PW-1 has admitted that he did not tell the Police that his father/PW-1 had told him that the appellant had killed the deceased.

18. The fourth prosecution witness is the Doctor who had conducted the postmortem examination upon the deadbody of the deceased. In his evidence, he has proved the postmortem report as Ext. 2.

19. In his cross-examination the Doctor has stated that the injury sustained by the deceased on her head might also be caused by fall on a hard object.

20. The fifth prosecution witness is Ratul Rautia (PW-5). He runs a shop near the house of the appellant and that is why he knew the informant and the appellant. PW-5 has stated that Holi was celebrated in the month of March that year and on that day at about 7.30 PM, he had closed his shop and went home. PW-5 has disclosed that on the next morning the PW-1 had come to his house and informed him about the death of the deceased. According to PW-5, on that day itself at about 9.30 AM he came to know from other people that the appellant had killed the deceased with a hoe. PW-5 has stated that when Police seized the hoe, he was a witness to the seizure.

21. During cross-examination, PW-3 has admitted that the PW-1 himself, did not tell him anything about the occurrence. PW-3 has further stated that he had heard about the occurrence from his elder brother.

22. The sixth prosecution witness is Dinesh Majhi (PW-6). He has stated in his evidence that in the next morning of the occurrence, he had heard that the appellant had killed the deceased. PW-6 has stated that in spite of hearing that news, he did not go to the place of occurrence.

23. In his cross-examination he has stated that he has no personal knowledge about the occurrence.

24. The seventh prosecution witness is Nilam Majhi (PW-7). He has stated in his evidence that on a particular day while he was returning from the river bank, he met Police personnel who asked him to come to the house of the appellant. Accordingly, he came and at that time he saw the deadbody of the deceased lying in the kitchen. PW-7 also noticed injury on the head of the deceased from where blood was coming out. PW-7 has further stated that from the place of Page No.# 6/9

occurrence Police had seized one hoe.

25. PW-7 was also cross-examined and at that time he has admitted that he did not tell Police that he had seen the deadbody in the kitchen.

26. The eight prosecution witness is Amila Rautia (PW-8). She is the sister-in-law of the PW-

1. Her house is situated opposite to the house of the PW-1 and both the houses were intervened by a road. PW-8 has stated that in the next morning after Holi she noticed that some people had gathered in front of the house of the PW-1 and then she heard from somebody that the appellant had killed the deceased.

27. The PW-8 was not cross-examined.

28. The ninth prosecution witness is the Police Investigating Officer (PW-9). He spoke about the investigation. PW-9 has stated in his evidence that PW-3 informed him that the appellant had committed the murder of the deceased. PW-9 has further stated that a hoe was lying beside the deadbody and, therefore, he had seized the hoe. According to PW-9, the appellant was present at that time and therefore he immediately arrested him.

29. PW-9 has confirmed that the PW-1 did not tell him that after waking up in the morning, he saw that the deceased was lying with injuries on her head. PW-9 has further confirmed the omissions appearing in the cross-examination of PW-2 and PW-3. He has confirmed that the PW-3 did not state before him that the PW-1 had told him that the appellant has caused the death of the deceased.

30. We have carefully considered the evidence available in the record. There is no dispute that the deceased died instantly as a result of ante-mortem head injury caused by blunt force impact. Therefore, the most important question that arises is, who caused the death of the deceased. It is clear on the face of the record that there are no eye witnesses to the occurrence. PW-1 stated in his evidence that he was sleeping at the time of occurrence and in the next morning the appellant had confessed before him that he had caused the death of the deceased with a hoe. But the PW-9 has confirmed that the PW-1 did not tell him that the appellant had confessed before him that he had killed the deceased.

31. PW-2, on the other hand, has claimed in his evidence that the appellant had confessed Page No.# 7/9

before him and some other people that he had hit the head of the decesed with a hoe. Again PW-9 has confirmed that the PW-2 never stated before him that the appellant had confessed before him that he had caused the death of the deceased.

32. The PW-3 stated in his evidence that on the day of the occurrence at about 11 PM he came home and saw the deceased lying dead in the kitchen. PW-3 further stated that his father i.e. the PW-1 told him that the appellant had caused the death of the deceased. In his cross- examination, the PW-3 has admitted that he did not tell Police that it was his father/PW-1 who told him that the appellant had caused the death of the deceased.

33. PW-5, PW-6 and PW-8 are hearsay witnesses. They had only heard about the occurrence.

34. PW-7 has stated in his evidence that when he had gone to the house of the deceased he saw the deadbody of the deceased with an injury on the head. But in his cross-examination, he has admitted that he did not state before Police that he had seen the deadbody in the kitchen.

35. The learned trial Court, however, found the appellant guilty of committing murder of the deceased, on the basis of circumstantial evidence. But the circumstances, on the basis of which the conviction was recorded, were not disclosed in the judgment.

36. In this case, the trial Court has convicted the appellant on the basis of circumstantial evidence. Therefore, at this stage, the law pertaining to the circumstantial evidence requires a brief discussion.

37. So far as the evaluation of the evidence in a case resting on circumstantial evidence is concerned, the principles thereof were laid down in the much celebrated pronouncement of the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622).Those principles are as follows :

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, Page No.# 8/9

p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(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.

154. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."

These principles were reiterated in S.K. Yusuf v. State of West Bengal (2011) 11 SCC 754 and Wakkar & Anr. v. State of U.P (2011) 3 SCC 306."

38. In a case based on circumstantial evidence, those circumstances from which the conclusion of guilt can be drawn should be fully established. Every such fact must be proved individually. If it is done then only the chain of circumstances would be established. Then also it must be kept in mind that there must not be any missing links in such a chain of circumstances. While deciding the sufficiency of the circumstantial evidence for conviction of an accused, the court has to consider the total cumulative effect of all the proved facts, because they must be consistent with the hypothesis of the guilt of the accused and should exclude every other hypothesis.

39. We find that in the case in hand, the evidences of the prosecution witnesses failed to inspire confidence. Even the circumstances consistent with the hypothesis of guilt of the appellant are not proved. In other words, the prosecution has failed to establish the chain of circumstances by adducing cogent evidence which would establish the guilt of the appellant.

40. In a criminal case the offence against the accused must be proved beyond all reasonable doubt. For the reason mentioned above, we are of the opinion that the trial Court has failed to appreciate the evidence according to the established principle of law and had arrived at an erroneous finding. Therefore, we hold that the prosecution has failed to prove the charge against the appellant beyond all reasonable doubt.

41. For the aforesaid reasons, we find that there is merit in the appeal. We allow the appeal.

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The impugned judgment passed by the trial Court in Sessions Case No. 107/2018 is set aside. The appellant is in judicial custody. Therefore, he be set at liberty forthwith.

42. Before parting with the record, we put on record our appreciation for Mr. A. Kalita, learned Amicus Curiae for his valuable assistance. The Registry is directed to pay the notified remuneration to Mr. Kalita.

LCR shall be returned.

                  JUDGE                                 JUDGE




Comparing Assistant