CRL.A(J)/31/2017
2022 Latest Caselaw 2390 Gua

GAHC010235422017




                             THE GAUHATI HIGH COURT AT GUWAHATI
                          (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
                                           PRINCIPAL SEAT AT GUWAHATI

                                                 CRL.A.(J) No. 31/2017


                             Shri Gobinda Tanti @ Gobin Tanti @ Harpai,
                             S/O Late Kuber Tanti,
                             Resident of Morongi Tea Estate Banshbari Line,
                             PS-Golaghat, District-Golaghat, Assam.
                                                                                     ......Appellant.

                                   -Versus-
                   1.        The State of Assam.
                   2.        Shri Hiren Gogoi,
                             S/O Late Dambaru Gogoi,
                             Village-New Sonowal Natun Mati,
                             PS-Mariani, District-Jorhat, Assam.
                   3.        Shri Munia Mura,
                             S/O Late Phagu Mura,
                             Village-Natunmati, PS-Mariani,
                             District-Jorhat, Assam.
                                                                                 ......Respondents.

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY

For the Appellant: Mr. U.S. Borgohain Amicus Curiae. ......Advocate.

                   For the Respondents:                 Ms. S. Jahan, Addl. PP, Assam,
                                                        Mr. B. Baruah.             ......Advocates.


                   Date of Hearing & Judgment           :      20th July, 2022


                                   JUDGMENT AND ORDER (ORAL)

             [N. Kotiswar Singh, J.]

Heard Mr. U.S. Borgohain, learned amicus curiae for the appellant. Also

heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, appearing

for the respondent No.1 and Mr. B. Baruah, learned legal aid counsel,

appearing for respondent Nos.2 and 3.

2. The present appeal has been preferred against the judgment dated

02.03.2017 passed by the learned Sessions Judge at Jorhat in Sessions Case

No.104(JJ)/2012 arising out of G.R. Case No.1232/2012 under Mriani P.S.

Case No.68/2012, by which the appellant was convicted under Section 302 of

the Indian Penal Code and was sentenced to undergo rigorous imprisonment

for life with a fine of ` 15,000/- (Rupees fifteen thousand) and in default of

payment of fine to undergo further rigorous imprisonment for 6(six) months.

3. The aforesaid trial commenced after the criminal justice system was

activated on filing of an FIR on 22.07.2012 by the informant (respondent

No.2) to the effect that on the night of 21.07.2012, Gobin Tanti, the appellant,

who was working along with another of his employee, namely, Abhijit Mura,

killed Abhijit Mura and ran away. Based on the aforesaid FIR, the investigation

was launched. The appellant surrendered before the police. On completion of

the investigation, charge-sheet was filed and accordingly, the appellant was

committed for trial before the learned Sessions Judge, Jorhat and the

following charges were framed against him:

"That you, on or about on 21/07/2012 at night at New Sonowal Natun Mati Gaon under Mariani P.S. you committed the murder of Abhijit Mura with an intention to cause his death and thereby committed an offence punishable under Section 302 of the IPC and within the cognizance of the court. And I hereby direct that you be tried on the said charge within in cognizance. The charge is read over & explained to the accused, to which, he pleaded not guilty & claimed to be tried."

4. In support of the prosecution case, the prosecution examined as many

as 10(ten) witnesses and also exhibited the relevant materials/documentary

evidences. The appellant denied the charges and pleaded not guilty and also

took the plea of alibi of being absent from the scene of crime.

5. The learned Sessions Judge on appreciation of the evidence on record,

concluded that the appellant was responsible for the murder of the deceased

Abhijit Mura and convicted him under Section 302 IPC and sentenced him to

undergo rigorous imprisonment for life, as mentioned above. As can be seen

from the judgment and also the records which are available before us, there

was no eye witness. The conviction of the appellant was based on

circumstantial evidences.

6. Mr. Borgohain, learned amicus curiae appearing for the appellant

submits that apart from the alleged recovery of the weapon of crime at the

instance of the appellant, there is no other evidence at all to implicate the

appellant. In fact, all the other evidences which have been taken into

consideration by the learned Trial Court were either inadmissible or insufficient

to establish the facts which form the chain of evidences and as such, it has

been submitted that the prosecution has failed to prove the charge against the

appellant beyond reasonable doubt.

7. Ms. S. Jahan, the learned Additional Public Prosecutor, Assam, by

supporting the judgment, has endeavoured to explain the evidences and

circumstances which have been used against the appellant.

8. We will now proceed to examine the evidence on record which

according to the learned Trial Court, formed the circumstantial evidences and

the basis for conviction, for which we will briefly refer to the evidences on

record.

9. The informant, perhaps the star witness, is one Hiren Gogoi, who was

examined as PW-8 who was the employer of the appellant and the deceased.

He deposed that both the deceased Abhijit Mura and the appellant were

workers in his timber shop. He stated that the incident occurred in his timber

shop which is located about 3 KM away from his residence. He further stated

that in the morning hours of the date of occurrence when he came to his

shop, he found the dead body of Abhijit Mura lying in the compound of his

timber shop and at the relevant time the appellant was not present.

Accordingly, he informed the police. He also mentioned that on the previous

night both the appellant as well as the deceased were staying together in his

shop as per his instruction. He also stated that after being informed, the police

arrived and he lodged an ezahar before the police which was proved before

the Court. He also stated that after three days of the occurrence, the appellant

surrendered before the police and thereafter, he was taken to the timber shop

and in his presence the police recovered one Naga dao from his shop

compound which was seized and he put his signature as a seizure witness. He

also stated that the appellant confessed before the police that the said Naga

dao was used by the appellant to commit murder of the deceased.

10. The other important witness is PW-1, Shri Bidyut Hazarika, who stated

that he was also a worker in the timber shop belonging to one Hiren Gogoi

(PW-8). He stated that on the night of occurrence both the appellant and

Abhijit stayed together in the shop belonging to Hiren Gogoi and he came to

the shop after being informed by the brother of Hiren Gogoi and he found the

deceased lying dead in the room where he stayed, which is located inside the

shop of Hiren Gogoi. He also stated that he did not notice the appellant at that

time.

11. The other witnesses appear to be formal witnesses. PW-2, one Rituraj

Gogoi is a witness to the inquest report, so is PW-3, Shri Nityananda Das.

PW-4, Munia Mura is the brother of the deceased, who came to the

place of occurrence after being informed that his brother was killed by

someone. He is not an eye witness. When he went to the place of occurrence,

he was informed that his brother was killed by the appellant and that his

brother and the appellant were sharing a room inside the sawmill campus. He

was present when the inquest was made and he was a witness to the inquest

report.

PW-5, namely, Shri Dulu Gogoi; PW-6, namely, Dharmeswar Das and

PW-7, namely, Amal Chandra Mili are other witnesses who apparently heard

the appellant making confession before the police in the police station when

they were present in the police station for some work. It may be noted that

the so called confessional statement made by the appellant in the police

station in presence of the aforesaid witnesses had been also relied upon by

the learned Sessions Judge in convicting the appellant.

12. The remaining witnesses are official witnesses. PW-9 is the I.O. of the

case, namely, Shri Rafiqul Haque. We will refer to his evidence in detail in

view of the fact that he was responsible for the recovery of the weapon of

crime at the instance of the appellant. He stated that the appellant

surrendered himself in the Court and accordingly, as per order of the Court he

took the appellant under his custody and recorded his statement. He also

stated that the appellant had confessed to have killed the deceased. Later the

appellant led him to the spot wherefrom the dead body had been recovered

and also from there he took out a Naga dao from underwater with which he

had killed the deceased and whereupon the said weapon was seized in

presence of witnesses. In the cross-examination, however, he stated that the

informant and the owner of the sawmill Hiren Gogoi did not tell him that the

appellant had killed the deceased. During cross-examination he also stated

that he did not mention in the seizure list as to the location of the place from

where the appellant had produced the dao.

13. PW-10 is one Dr. Tapan Das, who performed the autopsy upon the

dead body of the deceased. He testified that the following injuries were found

on the dead body:

"1. A chop injury of size 11 cm x 4 cm x chest cavity deep present over the left side of chest extending horizontally from the midline and 2 cm above the left nipple.

On dissection, skin, sub-cutaneous tissues and inter-costal muscles found cut. The 4th rib found cut in its long axis and lateral aspect of sternum at the attachment of the 4th rib found cut. Underlying thoracic cavity contains 250 ml of liquid and clotted blood. Pericardium found cut and pericardial cavity contains 200 ml of liquid and clotted blood. Anterior wall of the right ventricle found cut up-to the cavity.

2. A incised injury of 3 cm x 2 cm x subcutaneous tissue deep present over the left arm, upper part in the medial aspect.

NB:- Blood clot found adherent to the wound margins of above injuries which are resistant to washing with running water."

The doctor thereafter gave his opinion that the cause of death was due

to haemorrhage and shock as a result of injuries sustained and the injuries

were ante-mortem and caused by heavy sharp cutting weapon and homicidal

in nature. He also stated that the head injury can be caused by hitting a hard

substance also and the injury No.2 can be also caused by pushing the head

towards hard substance.

14. The learned Trial Court after considering the aforesaid evidence on

record held that the prosecution has been able to prove the charge against

the appellant beyond reasonable doubt, but on the basis of circumstantial

evidences. The observation/conclusion arrived at by the learned Trial Court

can be seen from paragraph 19 of the judgment, which is reproduced

hereinbelow:-

"19). First of all, let us see what are the important circumstantial evidence which appears in the evidence on record against accused Gobinda Tanti @ Gobin Tanti @ Harpai, showing his involvement in the murder of deceased:

i. The place of occurrence was at the compound of saw mill of informant Sri Hiren Gogoi [PW-8].

ii. Informant Sri Hiren Gogoi [PW-8] instructed both the accused as well as deceased to live in the saw mill for the night on the previous night, on which incident took place.

iii. The dead body of deceased was witnessed by the informant Sri Hiren Gogoi [PW-8] when he arrived at his saw mill in the morning hours. The informant then informed his related brother Sri Bidyut Hazarika [PW-1] about the incident.

iv. The informant as well as his related brother Sri Bidyut Hazarika [PW-

1] did not find the accused in the saw mill after the incident. The accused absconded from the place of incident.

v. This evidence got full corroboration from the evidence of Sri Munia Mura [PW-4] who is the younger brother of deceased Abhijit Mura.

vi. Both the accused as well as deceased were last seen together in the saw mill of informant by the informant himself. The time gap between the death of deceased due to assault and deceased being with the accused is so short that there is no possibility of any third person/ or party causing the death of deceased. As accused and deceased slept in the timber shop of informant [PW-8] so there cannot be any question of committing the murder of deceased by any third party/person in the given circumstances, except the accused.

vii. Accused surrendered on 28/07/2012, i.e., after 7[seven] days of incident which took place on the night of 21/07/2012, voluntarily in the court.

viii. The accused made extra judicial confession before three numbers of independent witnesses namely Dulu Gogoi [PW-5], Sri Dharmeswar

Das [PW-6] and Sri Amar Chandra Mili [PW-7] at police station before police as well as those witnesses and confessed that he had committed murder of deceased on the relevant night of incident.

ix. Recovery of offence of weapon, i.e., one "Naga dao" seized by police vide seizure-list [Exhibit-3] near the place of occurrence as stated and led by accused in presence of informant and other witnesses."

From a perusal of the aforesaid paragraph 19, it is clearly evident that

the learned Trial Court pointed out as many as 9(nine) evidences and

circumstances, which according to the learned Trial Court form the chain of

evidences completing the circumstances to implicate the appellant.

15. However, before we proceed further, since the conviction is based on

circumstantial evidences, we may recall the basic principles governing

conviction by way of circumstantial evidences. In this regard, we may refer to

the decision of the Hon'ble Supreme Court in Sharad Birdhichand Sarda

Vs. State of Maharashtra reported in (1984)4 SCC 116, wherein the

Hon'ble Supreme Court summarized the law in paragraph 153 thereof, which

is reproduced hereinbelow:

"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 & Anr. v. State

of Maharashtra [(1973)2 SCC 793] where the following observations were made:

"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."

16. Keeping the aforesaid principles in mind, we will proceed to examine

the facts in issue as to whether the circumstances can be said to be

established and also whether the chain of link of the evidences had been

properly established so as to exclude every possible hypothesis except the one

to be proved and these are consistent only with the hypothesis of the guilt of

the appellant.

17. Coming to the first evidence in the chain of evidences referred to by the

learned Trial Court, it has been mentioned that the place of occurrence was at

the compound of the saw mill of the informant Sri Hiren Gogoi. As regards this

evidence, there is nothing much to observe except to say that it has not been

stated that compound of the saw mill was enclosed or walled which will

prevent any unauthorized entry into the compound.

18. Coming to the second set of evidences that the informant Sri Hiren

Gogoi (PW-8) instructed both the accused as well as the deceased to live in

the saw mill on the previous night on which the incident took place, we would

like to make the observation that the said evidence does not establish the

factum of the deceased and the appellant staying together on the night of

incident at the place of occurrence. The evidence of PW-8 as already

discussed above, merely shows that he had instructed both the appellant and

the deceased to stay together, but there is no evidence to show in fact the

appellant and the deceased had actually stayed together at the place of

occurrence. Such a fact had not been witnessed by anybody. The said

evidence of PW-8 is of the pre-occurrence stage not followed by any evidence

to show the actual staying together of the appellant and the deceased.

Accordingly, we would like to make the observation that this piece of evidence

of PW-8 does not establish the factum of staying together of the appellant and

the deceased in the night. It is merely an evidence of instruction issued by the

owner of the saw mill to his two employees to stay together which does not

necessarily establish the fact that the appellant and the deceased had actually

stayed together on the night or at the time when the incident occurred.

19. Coming to the third piece of evidence that the dead body of the

deceased was witnessed by the informant Shri Hiren Gogoi when he arrived at

his saw mill in the morning hours and that he informed his related brother

Bidyut Hazarika (PW-1) about the incident again does not indicate much

except for the factum of discovery of the dead body. There is no evidence to

the effect that the appellant was found loitering near the place of occurrence

which could have led to certain kind of inference based on other

circumstances.

20. Coming to the fourth piece of evidence that the informant as well as

the related brother Bidyut Hazarika did not find the accused in the saw mill

after the incident and the accused had absconded from the place of incident,

in our view, the conclusion of the Trial Court or for that matter the statement

of any witness that the accused had absconded from the place of incident is

merely a surmise or conjecture. Nobody had seen the appellant going out of

the house. Abscondence in the present context would mean going away or

running away from the place where he was expected to be present. While the

appellant was expected to be present in the place of the stay i.e. the saw mill,

as directed by his employer, there is no evidence to the effect that he actually

had stayed in the saw mill in the night. Therefore, mere absence from the

place of occurrence does not necessarily mean that it was a case of

abscondence. Abscondence in the present context would necessarily involve

certain bad faith or some intention, but mere absence does not necessarily

mean abscondence.

21. Coming to the fifth evidence that the aforesaid evidences get full

corroboration from the evidence of Munia Mura (PW-4), who is the younger

brother of the deceased Abhijit Mura, we are unable to accept the said

observation for the reason that Munia Mura was not at the place of occurrence

when the incident took place. He came to the place of occurrence only after

getting the information about the alleged death at the instance of the

appellant as can be seen from the evidence referred to above. He only says

that when he came to the place of occurrence, he saw the dead body of his

brother, but did not see the appellant. Therefore, his evidence cannot

establish the factum of the abscondence of the appellant or the presence of

the appellant along with the deceased on the night of occurrence.

22. We will now deal with the sixth evidence that both the accused as well

as the deceased were last seen together in the saw mill of the informant by

the informant himself and that the time gap between the death of the

deceased due to assault and the deceased being with the accused was so

short that there is no possibility of any third person/ or party causing the

death of the deceased, and also the finding that as the accused and the

deceased slept in the timber shop of the informant, there cannot be any

question of committing the murder of the deceased by any third party/person

in the given circumstances, except the accused.

As mentioned above, there is no evidence to the effect that the

appellant and the deceased had stayed together in the night in the said shop.

Of course, there is evidence by PW-1 stating that on the night of occurrence

both the appellant and the deceased stayed in the shop belonging to Hiren

Gogoi. However, we are not able to understand how he had the direct

knowledge of the same in as much as he was not staying in the said timber

shop nor was he in the immediate neighbourhood. In his testimony, he says

that his house is located at a distance of 3 KM away from the said shop.

Therefore, we fail to understand that how and in what manner the said PW-1

could have the knowledge, staying 3 KM away from the place of occurrence,

that the appellant and the deceased were staying together in the place of

occurrence. Further, as discussed above, merely because of the fact that the

owner of the house PW-8 stated that he had given instruction to the appellant

and the deceased to stay together does not necessarily mean or establish the

fact that the appellant and the deceased were staying together at the relevant

time. PW-8 did not state that when he left the saw mill, both the deceased

and the appellant were seen to be staying together.

As regards the time gap, if they had been stayed together in the

evening and night and the dead body was found in the morning, there is a

long gap of at least more than 10 hours. There is no evidence to the effect

that there was no possibility of any other outsider or third person being able

to enter the said place of occurrence. There is no evidence to indicate that the

said shop is bounded on all sides by wall which would make it difficult for any

other person other than the inmates in the shop to enter the shop. Had it

been the case that there could not have been any access to the saw mill or

the shop, perhaps a legitimate inference could have been drawn against the

appellant, but there is no such evidence to the effect that the place of

occurrence was beyond the reach of any third person. Therefore, we are also

not able to agree with the finding that there is no possibility of any third

person causing the death of the deceased. The time gap in our view is long

enough which does not rule out the possibility of any other person to enter

the said timber shop.

23. The seventh evidence which had been relied upon by the learned Trial

Court is that the appellant surrendered on 28.07.2012, after 7 days of incident

which took place on the night of 21.07.2012 voluntarily in the Court. It is true

that voluntary surrender in the Court indicates a sense of guilt but that itself

cannot be the basis for conviction which has to be supported by other

circumstantial evidences. As discussed above, the other circumstantial

evidence does not appear to be fully proved.

24. The other evidence which had been taken into consideration by the

learned Trial Court is that the appellant had made extra-judicial confession

before the three independent witnesses, namely, Dulu Gogoi (PW-5),

Dharmeswar Das (PW-6) and Amar Chandra Mili (PW-7) at the police station

before the police as well as before these witnesses and that the appellant had

confessed that he had committed murder of the deceased on the relevant

night of the incident. We are unable to accept the said finding and conclusion

for the simple reason that the said conclusion is contrary to law. There is a

specific bar under Section 26 of the Indian Evidence Act, 1872 that any

confession made while in the custody of the police cannot be proved against

him.

25. Perusal of the evidences of the aforesaid so called independent

witnesses PW-5, PW-6 and PW-7 would show that they were present in the

police station when the appellant allegedly made the confessional statement.

Therefore, the fact remains that the appellant had made the confessional

statement while in the police custody. The presence of the so called

independent witnesses even if for their own purposes will not make any

difference so long as the confession is made in the police custody as there is a

statutory bar as provided under Section 26 of the Indian Evidence Act, 1872.

Only such statement made in the police custody in the immediate presence of

a Magistrate may be proved as provided under Section 26 of the Indian

Evidence Act, 1872. But none of the aforesaid witnesses is a Magistrate but

are civilians and as such, the so called extra-judicial confessional statement

made in the police station, even if it made before a civilian will be

inadmissible. Moreover, it is not a case that the appellant had made the

confessional statement to these witnesses. What the evidence shows is that

these witnesses were present when the appellant had made the confessional

statement to the police in the police station. Accordingly, for the aforesaid

reasons, we hold that the so called confessional statement made by the

appellant in the police station in presence of the aforesaid civilian witnesses

would be inadmissible in law and cannot be proved against the appellant.

26. We now come to the ninth evidence that the weapon of crime i.e. one

Naga dao was seized by the police near the place of occurrence which would

implicate the appellant. While this piece of evidence is vital, we have to

examine whether the said seizure has been made properly or not. To implicate

any person on the basis of such seizure, the same has to be strictly construed.

As regards the seizure, the seizure was made at the instance of the appellant

as testified by the I.O. of the case, who was examined as PW-9. As mentioned

above, PW-9 says that the appellant had led the police to the spot from where

the dead body has been recovered and there, he took out the Naga dao with

which he killed the deceased. The PW-9 however continues to say that the

aforesaid dao was recovered from underwater. At the same time, in the cross-

examination he also admitted that he did not mention about the place of

seizure in the sketch map as to the location from where the accused had

produced the dao. Whatever may be the case, perusal of evidence of PW-9

would indicate that the dao was recovered from water. On the other hand,

PW-8 who was the owner of the house from where the said dao was

recovered stated that on being led and shown by the appellant, the police

recovered one Naga dao from his timber shop compound and seized the same

vide seizure list (Exhibit-3) where he put his signature as the seizure witness.

In the cross-examination he states that the Naga dao was brought out by the

police from its hidden place without clarifying the nature of the hidden place.

We are of the view that if it was indeed recovered from water that would have

found place in the evidence of PW-8. PW-8 was the owner of the house from

where the weapon was seized and as such, he knew best the topography of

the place of occurrence/saw mill shop and was the best person to describe the

place properly. Unfortunately, there is no such description of any water or

waterbody from where the PW-9 stated the weapon was recovered.

Therefore, we are in a little bit of doubt as to the manner in which the said

weapon of crime was seized and recovered at the instance of the appellant.

27. Under the circumstances, what we would hold is that the so called

evidences which form the complete chain of evidence to implicate the

appellant do not appear to have been established beyond reasonable doubt.

There are elements of doubt which are reasonable in the facts and

circumstances as narrated above. If that is so, conviction of the appellant on

the ground that he was not found in the place of occurrence and that he

surrendered before the police and that the weapon of crime was recovered at

his instance, does not appear to be based on established facts and hence not

proper. In our view the chain of circumstantial evidences which is required to

be established, does not appear to have been established.

28. Under the circumstances, we are of the view that the conviction of the

appellant cannot be sustained in law and accordingly, the impugned judgment

dated 02.03.2017 passed in Sessions Case No.104(JJ)/2012 is set aside. The

appellant is accordingly, directed to be set at liberty forthwith.

29. We have noted that while convicting the appellant, which we have set

aside by this order, the learned Trial Court did not pass any order for payment

of compensation to the victim or his dependents as contemplated under

Section 357A of the Cr.P.C. We have been also informed that there is a

scheme prepared by the State of Assam under sub-section 9 of Clause 5 of the

Assam Victim Compensation Scheme, 2012 as notified on 05.03.2016 and

which has also been revised on 01.02.2019, if that is so, let the State verify if

the deceased had left any dependent and if so, let the compensation fixed by

the State in terms of the aforesaid notification dated 01.02.2019 be paid to

the dependent(s) of the victim or next of kin after making necessary

verification. The aforesaid exercise will be carried out in association with the

Jorhat District Legal Services Authority at the earliest and preferably within a

period of 3(three) months from the date of receipt of a copy of this order. A

copy of this order be furnished to the Member Secretary, Assam State Legal

Services Authority as well as the Secretary, Jorhat District Legal Services

Authority to assist the State authorities in this regard.

30. LCR be sent back forthwith to the concerned Court.

31. Mr. U.S. Borgohain, learned amicus curiae, who has ably assisted this

Court in conducting this appeal, may be given the honorarium at the rate fixed

as per rules.

                         Sd/- Arun Dev Choudhury                  Sd/- N. Kotiswar Singh
                                   JUDGE                                   JUDGE




             Comparing Assistant