Dhiren Tanti vs The State Of Assam And Anr
2022 Latest Caselaw 756 Gua

                                                                    Page No.# 1/21

GAHC010190362020




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

                                Case No. : CRL.A(J)/103/2020

            DHIREN TANTI
            SONITPUR, ASSAM.


            VERSUS

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


Advocate for the Petitioner    : MR. A AHMED, AMICUS CURIAE

Advocate for the Respondent : MRS. R D BHUYAN, LEGAL AID COUNSEL

BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MR. JUSTICE ROBIN PHUKAN

Date of hearing : 03.03.2022 & 04.03.2022.

Date of judgment :            04.03.2022.


                                 JUDGMENT & ORDER (Oral)

(Suman Shyam, J)

Heard Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant. We

have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, Page No.# 2/21

appearing for the State. None has appeared for the informant.

2. This appeal is directed against the judgment and order dated 11.02.2020

passed by the learned Sessions Judge, Sonitpur, Tezpur in connection with Special

POCSO Case No.67/2017 convicting the sole appellant under Section 302/201 of the

Indian Penal Code (IPC) and sentencing him to undergo rigorous imprisonment for life

and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for further

six months, for the offence under Section 302 of the IPC. The appellant was also

sentenced to undergo rigorous imprisonment for five years and to pay fine of

Rs.5000/- with default stipulation for committing the offence under section 201 of the

IPC. Both the sentences were to run concurrently.

3. This is yet another unfortunate case where an 11 years old girl child was found

dead under mysterious circumstances with her body partially buried under the soil.

The prosecution case, as unfolded from the materials available on record, is to the

effect that on 01.11.2017 at around 2.30 p.m. the victim had gone to the "bagan"

(garden) at Block No.3 of Malijan Tea Estate along with the accused Dhiren Tanti

looking for firewood. Subsequently, the victim was raped and murdered and her

body was dragged and buried in a drain of the garden by the accused. On

01.11.2017, at about 7.10 p.m., the Officer-in-Charge of Salonibar Policei Outpost,

coming under Tezpur Police Station, had received an information over phone from

the Welfare Officer of Malijan Tea Estate informing him that one minor girl has been

murdered and her body concealed under the ground. Accordingly, Salonibari

Outpost G.D. Entry No.11 dated 01.11.2017 was made and the police went to the Page No.# 3/21

place of occurrence, arrested the accused person, conducted videography of

recovery of the dead body allegedly, on being led by the accused. On 02.11.2017 an

F.I.R. was lodged by the PW-3 i.e. the uncle of the victim based on which, Salonibari

O.P. G.D. Entry No.29 dated 02.11.2017 was made and the same was forwarded to

the Tezpur Police Station for registering a proper case. Based on the F.I.R. dated

02.11.2017, Tezpur P.S. Case No.2253/2017 was registered under Sections 302/201 of

the IPC r/w Section 4 of the POCSO Act and the matter was taken up for

investigation. S.I. Aminul Islam i.e. the PW-8 was entrusted with the task of carrying out

investigation in the case. The PW-8 had conducted investigation but before he could

submit charge-sheet he was transferred, as a result of which, the charge-sheet in this

case had to be submitted by the PW-11. Based on the charge-sheet, charges were

framed against the accused/appellant under Sections 302/201 of the IPC read with

Section 8 of the POCSO Act, 2012 and the same was read over and explained to him.

However, since the accused had pleaded not guilty the matter went up for trial.

4. In order to bring home the charges, the prosecution side had examined as

many as 11 witnesses out of which PWs-7, 8, 9, 10 and 11 were the official witnesses.

Upon recording of evidence of the prosecution side the statement of the accused

person was recorded under Section 313 of the Cr.P.C. wherein he had denied all the

incriminating circumstances put to him. The accused, however, did not adduce any

evidence in his defence. Upon conclusion of trial and on evaluation of the materials

on record the learned trial court had found that the charges brought against the

accused under Sections 302/201 of the IPC were fully established on the basis of

circumstantial evidence brought on record. The accused was, however, acquitted in Page No.# 4/21

respect of the charge brought under Section 8 of the POCSO Act due to want of

sufficient evidence. The conviction of the appellant/accused in this case is based on

the "last seen together" circumstances which, according to the learned Sessions

Judge, completed the chain of circumstances so as to conclusively prove the

charges brought against the accused person under Sections 302/201 of the IPC.

5. Assailing the impugned judgment dated 11.02.2020, Mr. A. Ahmed, learned

Amicus Curiae, has argued that the evidence brought on record by the prosecution

side neither establishes the "last seen together" circumstance nor does it prove the

charge brought against the accused under Sections 302/201 of the IPC. The learned

Amicus Curiae submits that even assuming that the accused was last seen together

with the victim, even then, the same alone cannot be the basis to convict the

accused for committing murder. Mr. Ahmed has further argued that the prosecution

has failed to establish the time of death. No evidence could be produced by the

prosecution to connect the accused with the occurrence. Moreover, the statement

of the witnesses relied upon by the prosecution side are full of contradictions and

their statements were also recorded by the I.O. after much delay. Contending that

there is no information provided by the accused leading to the discovery of the dead

body, as claimed by the prosecution side, the learned Amicus Curiae has argued

that the accused/appellant in this case has been convicted merely on suspicion

without there being any cogent evidence available on record so as to prove the

charge brought against him. It is also the submission of Mr. Ahmed that the

prosecution witnesses, who did not support the prosecution case and were not

declared hostile witnesses, their testimony would be binding on the prosecution. From Page No.# 5/21

the testimony of PW-1, it would be established beyond doubt that the charge

brought against the accused/appellant could not be proved on the basis of

evidence available on record. In support of his aforesaid arguments Mr. Ahmed has

relied upon the following decisions :-

1. (2005) 12 SCC 438 [Jaswant Gir vs. State of Punjab]

Paragraph 5

2. 2020 (1) GLT 725 [Sharifa Khatun & Ors. Vs. The State of Assam and Ors]

Paragraphs 20 and 32

3. (2014) 4 SCC 715 [Kanhaiya Lal vs. State of Rajasthan]

Paragraphs 11, 12 & 14.

6. Responding to the above argument, Ms. B. Bhuyan, learned Addl. P.P., Assam,

has argued that PWs-1, 5 and 6 have categorically deposed that they have seen the

accused with the victim around the time of the occurrence and their evidence has

remained unimpeached. PW-1 has also deposed that on the date of the incident, at

around 2.30 p.m. while she was plucking tea leaves in the garden, she had seen the

accused dragging the victim taking her inside the garden. According to the PW-1,

the incident took place at Block No.3 of Malijan Tea Estate which is the place where

the dead body of the victim was found out. Ms. Bhuyan has further submitted that it

has come out from the evidence brought on record that the accused person had

also initially joined the other people in the search for the victim but soon after the

body was found the accused fled from the scene and later on he was apprehended Page No.# 6/21

by the public and handed over to the police. The evidence brought on record to the

above effect, according to the learned Addl. P.P., establishes the chain of

circumstances so as to conclusively prove the charge brought against the accused

under Section 302/201 of the IPC. As such, submits Ms. Bhuyan, the impugned

judgment and order does not call for any interference, particularly keeping in mind,

the heinous nature of the offence.

7. We have bestowed our anxious consideration on the submissions made at the

bar and have also carefully gone through the materials on record.

8. As noticed above, the learned Sessions Judge had acquitted the

accused/appellant of the charge framed under Section 8 of the POCSO Act, 2012

due to want of evidence. The conviction of the appellant as regards the charges

brought under Sections 302/201 of the IPC appears to be entirely based on the "last

seen together" circumstances which is apparent from the findings and conclusions

recorded by the learned Sessions Judge in paragraphs 48 to 51 of the impugned

judgment which are reproduced herein below for ready reference :-

"48. In the present case the totality of the evidence and the circumstance

pressed on record undoubtedly finger towards the accused as author of the

crime and the injuries of abdomen sustained by the little girl indicates that the

accused intentionally caused the death of the deceased perhaps not

succeeding in going to do some illegal acts.

49. In the light of the discussions made above, it reveal that there are series

of incriminating evidence which are consistent with the guilt of the accused Page No.# 7/21

and inconsistent with his innocence. The complete chain of incriminating

circumstance and last seen together the deceased with the accused led to

forming a reasonable link of certainty that the murder of the deceased being

committed by none but the accused and as such I am of the considered view

that charge u/s 302 IPC against the accused stands proved. Accordingly, he is

convicted for offence punishable u/s 302 IPC.

50. In this case it is in the evidence of PWs that body of the deceased girl

was found covered with soil in a drain and only from a toe in the midst of the

soil, her body was found. This reveals that the body was buried for causing of

disappearance of evidence with intend to screening himself from punishment

and a such the accused Dhiren Tanti is also found guilty punishable u/s 201 IPC

and convicted accordingly.

51. However there is no evidence that the deceased was sexually assaulted

or raped. Though the PM report suggestive of presence of abrasion over her

breast but only from this it cannot be safely held that with sexual intend she

was caused injury. Therefore, he cannot be held guilty for offence u/s 8 of

POCSO Act. Accordingly he is acquitted from charge of section 8 of POCSO

Act."

9. Since the thrust of the argument advanced by the learned Amicus Curiae is to

the effect that the conviction of the appellant under Section 302/201 of the IPC is

wholly on the basis of "last seen together" circumstance without there being any

other evidence to connect the accused with the occurrence, we deem it Page No.# 8/21

appropriate to briefly examine the evidence adduced on record by the prosecution

witnesses.

10. PW-1, Smti Pinki Karmakar is the aunt of the victim. She has deposed that at the

time of the incident the victim was about 11 years old. The incident took place about

a year back at around 2.30 p.m. At that time she was plucking tea leaves in the

garden. She saw the accused dragging the victim inside the garden. According to

the PW-1, the incident took place in the Block No.3 of Malijan Tea Estate under

Sonabeel Division. In the evening she had seen the mother of the victim searching for

her and then she told her that the victim was seen with the accused who was taking

her forcefully inside the garden. Then the mother of the victim went into the garden

to enquire about her daughter and found one chappal and one 'lathi' (stick) used

for collecting firewood. Thereafter, the mother of the victim recovered the dead

body in a drain of the garden. While the victim's mother was searching for her

daughter she was accompanied by other villagers viz., Castanti Surin and Anil

Ghatowar. The dead body was found covered with earth and the legs were

uncovered and hence, those came out. They raised alarm and on hearing the hullah

local people went to the place of occurrence. Next day police recovered the dead

body. During her cross-examination PW-1 has stated that at the time of the incident

her husband was at home and she had asked the accused Dhiren Tanti to sell their

saucepan (deksi). According to PW-1, the victim was wearing a yellow colour pant

and a white sporting T-shirt while she was being taken away by the accused. She has

further stated that the accused came to their house at about 3.00 p.m. and at that

time she was also present at home. Thereafter, the accused went to "Kherbari" to sell Page No.# 9/21

the saucepan and stayed there. This witness had denied the suggestion that the local

people on suspicion had apprehended the accused and thereafter handed him

over to the police. She has, however, admitted that she had not seen the incident

but has seen the accused forcefully taking the victim (deceased) inside the garden.

11. PW-2, Dr. Mridurupam Gogoi was the Senior Medical & Health Officer on duty

at the Kanaklata Civil Hospital, Tezpur on 02.11.2017 when the dead body of the

victim was brought there for post-mortem examination. PW-2 had conducted the

post-mortem examination. This witness has proved the post-mortem report Ext-1.

According to the evidence adduced by PW-2, the following injuries were found on

the dead body of the victim :-

"Three lacerated injuries present over left cheek, two present at the label

of left eye, size 2 cm x 2cm x 3cm and one present below it, size - 3 cm x 2cm x

2cm. Left eye ball is absent. Neck is tied with a cloth. Knot present at the left

side. One abrasion mark present on right breast, size -1cm x 1cm 1 cm. No

injury marks over genital area. Vaginal swab is sent to FSL examination."

PW-2 has also opined that death had occurred due to haemorrhagic shock due to

abdominal blunt trauma. During his cross-examination, PW-2 has admitted that he

had not mentioned the time since death, in the post-mortem report nor did he

mention about the presence of rigor mortis. Hence, he could not say when the

deceased had died. The doctor had, however, maintained that the deceased had

died due to abdominal injuries.

12. PW-3, Sankar Ghatowar is the informant in this case. He is also the uncle of the Page No.# 10/21

victim. PW-3 has deposed to the effect that the incident occurred on 01.11.2017 and

on that day, at around 2.00 p.m., his niece (victim) along with the accused went to

the 'bagan' (garden) for collecting firewood. At around 7.00 p.m. he had heard that

his niece did not return home. The mother of the victim, along with other villagers,

went out in search for her and found the dead body of the victim in a drain of the

garden covered with soil. Noticing marks of someone being dragged, they had

followed the track and soon found that the toes of the victim were sticking out from

the earth covering the drain and found the dead body. PW-3 has further deposed

that he had lodged F.I.R. Ext-2 and Ext-2(1) was his signature. This witness has further

confirmed that he had seen injury over the head of the deceased and there was

'gamosa' tied in the neck of the deceased. The police had conducted inquest over

the dead body in his presence and Ext-3 was the inquest report. During his cross-

examination, PW-3 has stated that except the recovery of the dead body he knew

nothing about the incident and he had reached the place of occurrence after the

recovery of the dead body. PW-3 has also stated that he had not seen as to when

and how the deceased had gone to the garden. PW-3 has further stated that the

police had recorded his statement after the F.I.R. was lodged. In the F.I.R. he had not

mentioned as to from whom he had heard about the incident. On the day of the

incident many persons were working in the garden from 7.00 a.m. to 12 noon and

after a break of two hours again from 2.00 p.m. to 4.00 p.m.

13. PW-4, Smti Dipmala Topno is the mother of the victim. She has deposed that

the deceased was her daughter aged about 11 years. The incident occurred one

and a half years back. On that day she had gone to work and her husband was at Page No.# 11/21

home due to illness. Her deceased daughter went to the garden along with the

accused so as to collect firewood. In the evening when she returned home, not

finding her daughter home, when she had enquired from her husband about her, he

had replied that the victim went with Dhiren Tanti to the garden. Since her daughter

had not returned home she went in search of her but could not find her. Then she

called her neighbours and some of the people came and joined in the search of her

daughter. They had found one chappal of her daughter and noticed marks of

dragging towards the drain. They followed the drag mark, proceeded towards the

drain and found the dead body of the victim which was covered with earth with one

toe coming out. Seeing the dead body she had raised alarm and then the accused

fled away. Next morning the police along with the villagers had dug up the earth and

brought out the dead body of her daughter. She had seen cut marks over the cheek,

near the eye and both the eye balls had come out. There was a "gamosa" (towel)

tied in her neck. During her cross-examination, PW-4 had denied that her brother-in-

law (PW-3) had lodged the ejahar against the accused out of jealousy since the

accused was a permanent labour but her brother-in-law was not. This witness has also

denied that she had deposed as tutored by the informant but she has clarified that

she had not seen the incident.

14. Smti Dasen Nayak was a resident of the neighbourhood and she had heard

hullah and came to know that the accused had committed rape on the victim and

killed her and thereafter buried the dead body in a drain of the garden. This witness

was examined as PW-5. In her cross-examination, PW-5 had maintained that when

she went to the garden to bring her cattle, except accused Dhiren and the Page No.# 12/21

deceased none was there. On the next day of the incident the police recorded her

statement and after 5 days she was brought before the Magistrate for recording her

statement. She, along with Dipamala (PW-4), Sankar (PW-3), Kundan (PW-6) and Pinki

(PW-1) had come to the court of the Magistrate for recording their statements.

15. PW-6, Sri Kundan Karmakar was playing carom on the day of the incident at

about 2.00 p.m. when he saw accused along with the victim proceeding towards the

garden. In the evening he came to know that the victim did not return. In the

evening the dead body of the victim was recovered from a drain of the bagan. He

had gone there to see the dead body and found that the same was covered with

earth in a drain. He had also noticed injury in the head of the deceased. This witness

has confirmed that his statement was recorded before the Magistrate. During his

cross-examination, this witness could not be shaken. PW-6 had, however, stated that

his statement was recorded before the Magistrate after about a month.

16. PW-7, Sri Sankar Chandra Rabha was the Scientific Officer who had

conducted forensic test in respect of the vaginal smear of the victim and found that

the samples were negative for the test of spermatozoa. The cross-examination of this

witness was declined.

17. PW-8, S.I. Aminul Islam was the Investigating Officer (I.O.) who had conducted

investigation in connection with Tezpur P.S. Case No.2253/2017. PW-8 has deposed

that on receipt of information about the incident over telephone he had made a

G.D. entry and then accompanied by ASI Bijoy Kumar Domai and other staff,

proceeded to the place of occurrence. On reaching the place of occurrence he Page No.# 13/21

was informed that the accused is taking shelter at a nearby village i.e. Kherbari.

Accordingly, he had arrested the accused. Next morning around 7.00 a.m.,

accompanied by the Circle Officer of Chariduar Revenue Circle as well as the

accused, they had proceeded to the place of occurrence, conducted inquest on

the dead body. Before the inquest was held the accused had taken them to the

place where the dead body was dumped. PW-8 has also deposed that the incident

was videographed and he had also prepared a sketch map of the place of

occurrence which shows that the accused had led him to the place where the body

was buried. During his cross-examination, PW-8 has admitted that there is no mention

of the Compact Disc (CD) containing the videography in the charge-sheet nor has

the same been exhibited before the court. The PW-8 had also confirmed that the

statement of the accused regarding information leading to recovery of the dead

body had not been recorded by him. This witness has, however, denied the

suggestion made by the defence side that the accused did not lead the police party

and the Magistrate to the discovery of the dead body. Having denied as above, the

I.O. has admitted that there is no mention about the discovery of the dead body on

being lead by the accused in the Case Diary nor has the Case Diary been paginated

by him. PW-8 has further stated that in this case he had not seized any article.

18. Although PW-8 had conducted the investigation and completed the same but

the charge-sheet was ultimately submitted by PW-11 i.e. S.I. Labanya Bezbaruah since

PW-8 was transferred in the meantime. PW-11 has confirmed that Ext-6 is the charge-

sheet submitted by him and Ext-6(1) was his signature.

Page No.# 14/21

19. PW-9, Dr. S. K. Borah was working as the Circle Officer, Charduar on

02.11.2017 and he has deposed that inquest over the dead body was conducted by

him. Ext-3 is the inquest report and Ext-3(2) was his signature. According to PW-9, the

dead body was shown to him by PW-3 and he had found that the body was lying on

the ground with head injury and blood mark on the left eye. The body was sent to

KCH, Tezpur for post-mortem examination. According to PW-9, a wooden lathi was

found near the dead body and it was suspected to be a murder case as per public

opinion. During cross-examination, PW-9 has confirmed that the inquest report was

prepared by him.

20. PW-10, Ms. Juhi Gogoi was the Judicial Magistrate 1 st Class posted at Sonitpur,

Tezpur, who had recorded the statement of witnesses Pinki Karmakar, Kundan

Karmakar, Dipmala Topno and Dasen Nayak i.e. PWs- 1, 6, 4 and 5 respectively, under

section 164 of the Cr.P.C. PW-10 has stated that the witnesses were escorted and

identified by AHG Bina Bora. PW-10 has proved Exts-8, 9, 10 and 11 which were the

statements of the aforesaid witnesses recorded under Section 164 Cr.P.C. as per her

order dated 06.11.2017 (Ext-12).

21. On a careful reading of the evidence of PW-1 we find that she had claimed to

have seen the accused dragging the victim and taking her inside the garden which is

apparent from her deposition. However, from a reading of the statement of PW-1

recorded under Section 164 Cr.P.C. (Ext-8) we find that no such statement was made

by her before the Magistrate. This witness has also not made such a statement to the

police which was recorded on the next date of the incident. It also deserves mention Page No.# 15/21

herein that if the PW-1 being the aunt of the victim had actually seen the accused

dragging the victim and taking her inside the garden then we did not find any

explanation as to why she had not raised any alarm or made any attempt to stop

him and instead returned back home only to give this information to the mother of

the victim in the evening. Not only that the PW-1 had asked the accused to run an

errand for her at 3.00 p.m. on that day by asking him to sell her saucepan. For the

aforesaid reason, we find that the testimony of PW-1 is full of contradiction and

appears to be wholly untrustworthy. It is, perhaps, for the aforesaid reason that the

learned Sessions Judge had also chosen not to rely upon the evidence of PW-1 so as

to convict the accused.

22. As noted above, it has come out from the evidence of PWs-5 and 6 that the

accused was last seen in company of the victim on the date of occurrence. The

assertion made by these two witnesses to the above effect has also not been

specifically challenged by the defence side during their cross-examination. However,

it will be significant to note herein that there is variance in the version of these

witnesses as regards the time and circumstances under which the accused was last

seen with the victim. According to PW-5, the victim was last seen together with the

accused at about 3.30 p.m. She has also stated that there was none other than the

deceased and the accused at the "bagan" when she had seen them. However, in

the following sentence this witness has stated that there were labourers plucking tea

leaves and she had seen the accused and the deceased from a distance of 10 to 15

meters. She had also seen the accused with a lathi in his hand. According to PW-6, he

had seen the victim accompany the accused at about 2.00 p.m. What, therefore, Page No.# 16/21

transpires from the evidence of PWs-1, 5 and 6 is that the accused was seen in the

company of the victim at 2.00 p.m. and again at 2.30 p.m. on the day of the

occurrence but at 3.00 p.m. on the same day, he had come to the house of PW-1.

Again at 3.30 p.m. the accused was seen in the garden in the company of the victim.

If the version of PW-1 is to be believed, then at that time the accused had gone to

the Kherbari village in his attempt to sell the saucepan. From the testimony of the

prosecution witnesses, as noted herein above, it would also clearly transpire that the

victim though seen in the company of the accused, was alive until 3.30 p.m. What

happened thereafter is, however, not discernible.

23. In the above context, it would be significant to mention herein that as per the

evidence of the mother of the victim i.e. PW-4, she was plucking tea leaves in the

garden in Line No.4 between 7.00 a.m. to 4.00 p.m. along with 400/500 other

labourers. As per PW-3, there were about 100 labourers working in Line No.3 between

2.00 p.m. to 4.00 p.m. What is surprising is the fact that none of the other labourers

had seen the victim drag or use any force or for that matter display any unnatural

behavior towards the victim. Therefore, while it may be correct to argue that there is

evidence on record to show that on the date of the occurrence the victim was seen

in the company of the accused between 2.00 p.m. to 3.30 p.m. there is nothing on

record to connect the accused with the offence. The aforesaid aspect of the matter

assumes great significance on account of the fact that the place of occurrence is a

part of the tea garden where hundreds of other labourers were engaged in plucking

tea leaves on the date of the occurrence and therefore, the place was accessable

to all.

Page No.# 17/21

24. In the case of Leela Ram vs. State of Haryana reported in (1999) 9 SCC 525 the

Hon'ble Supreme Court has held that the circumstance of "last seen together" is a

weak kind of evidence.

25. In the case of Kanhaiya Lal vs. State of Rajasthan reported in (2014) 4 SCC 715

the Apex Court has held that the circumstance of last seen together does not, by

itself, lead to the inference that the accused had committed the crime. There must

be something more establishing the connectivity between the accused and the

crime. Similar view has been expressed in the case of Ashok vs. State of Maharashtra

reported in (2015) 4 SCC 939 whereby the Apex Court has observed that in a case of

"last seen together" the prosecution would be relieved from proving the exact

happenings of the incident as it is the accused who would have special knowledge

of the incident. However, the burden of proving the charge by adducing sufficient

evidence pointing towards the guilt of the accused would always be on the

prosecution. It has further been held that "last seen together" itself is not a conclusive

proof but along with other circumstances surrounding the incident, the same may

lead to presumption of guilt, more so if the accused person fails to offer reasonable

explanation discharging the burden under Section 106 of the Evidence Act.

26. What follows from the aforesaid decisions of the Hon'ble Supreme Court is that

it would be wholly unsafe to base the conviction of the accused only on the

circumstance of "last seen together" and the prosecution must adduce evidence to

prove the other links in the chain of circumstances so as to prove the guilt of the

accused. It is only when such burden is discharged by the prosecution that the failure Page No.# 18/21

on the part of the accused to offer reasonable explanation based on the

circumstances of "last seen together" that it would amount to an additional link in the

chain of circumstances which would go against the accused.

27. In the above context, it deserves mention herein that the prosecution story

proceeded on the basis that the accused/appellant had committed rape on the

victim by taking her to a secluded place and thereafter, killed her and buried the

body so as to destroy evidence. However, as mentioned above, the accused has

been acquitted in respect of the charge framed under Section 8 of the POCSO Act.

The State has not preferred any appeal against the judgment of acquittal. If that be

so, there can hardly be any doubt about the fact that in this case there is no

evidence to establish the motive on the part of the accused to commit the murder of

the victim. This would naturally impel us to assume that failure to establish the motive

has further weakened the prosecution case.

28. During his deposition the PW-8 has made a tacit attempt to project that the

dead body of the victim was recovered on the basis of information received from the

accused and on being led by him. However, we have already noted herein above

that there is no such statement of the accused leading to discovery of the dead

body. As a matter of fact, the PW-4 has stated in her deposition that when she went

out in search of her daughter accompanied by some villagers, she found the dead

body covered in earth in a drain inside the garden. According to the testimony of

PW-4, the dead body was found out in the evening hours of 01.11.2017 and we find

from the evidence of PW-8 that the accused was arrested on 02.11.2017 at about Page No.# 19/21

5.00 p.m. Under the circumstances, there cannot be any question of information

received from the accused leading to discovery which could be proved by the

prosecution within the meaning of Section 27 of the Evidence Act, 1872 so as to

implicate the accused.

29. Coming to the last limb of submission of the learned Addl. P.P. pertaining to

the accused having fled from the place of occurrence immediately after the

discovery of the dead body as one of the adverse circumstance which could be

taken note of by the court so as to convict the accused, here also we find the

aforesaid submission to be wholly unacceptable. If the accused was really guilty then

we fail to understand as to why he should have accompanied the search team and

wait till the body was recovered so as to flee the place. If the accused did have any

real intention to flee the scene, he could have either refused to accompany the

search team or fled even before the body was recovered. It has come out from the

evidence of PW-1 herself that the accused had gone to Kherbari village to sell a

saucepan to Asmat Ali. The PW-8 has also stated that after visiting the place of

occurrence he came to know that the accused was taking shelter in Kherbari village

and went there and apprehended the accused. Therefore, it is established from the

evidence of the prosecution witnesses themselves that the accused had gone to

Kherbari village so as to sell the saucepan of the PW-1 in the afternoon of the date of

occurrence and this, in our opinion, would amount to explanation as to the

whereabouts of the accused at the time of occurrence.

30. It has come out from the evidence on record that the stick used by the victim Page No.# 20/21

to collect firewood was found near the place of recovery of the dead body. But that

stick was neither seized by the I.O. nor was it sent to the FSL. The stick was not even

shown to the doctor conducting the post-mortem examination so as to make an

assessment as to whether the injury in the body of the victim could be possibly

caused by it. There is no other evidence collected by the I.O. to connect the

accused with the commission of the offence.

31. On a cumulative assessment of the evidence brought on record by the

prosecution side we find that the prosecution can at best be said to have established

the "last seen together" circumstance but no further. But that alone, in our view,

would not be sufficient to convict the appellant under Sections 302/201 of the IPC for

committing the murder of the victim. The tea garden being an open field, the

involvement of any other person in committing the offence cannot be ruled out in this

case. Ms. Bhuyan, learned Addl. P.P., has relied upon the recent decision of the Apex

Court in the case of Arvind Singh vs. State of Maharashtra reported in 2020 SCC

Online SC 400 to contend that if the accused fails to offer reasonable explanation in

case of last seen together circumstances then in that event conviction of the

accused would be justified. However, after perusal of the said decision we find that

the decision was rendered by taking note of the facts and circumstances of that

case. Arvind Singh (supra) does not in any manner relieve the prosecution of its

burden to prove the charge brought against the accused beyond reasonable doubt

by leading evidence. In the facts of the case the evidence suggesting that the

accused was seen in the company of the deceased on the date of occurrence, in

our opinion, can at best raise grave suspicion about his involvement but the same Page No.# 21/21

obviously cannot take the place of proof. There is serious doubt about the

involvement of the accused and benefit of such doubt must go in favour of the

accused.

32. For the aforesaid reason, the impugned judgment dated 11.02.2020 is held to

be unsustainable in law. The same is accordingly set aside.

We are informed that since his arrest on 01.11.2017 the accused in is jail. We,

therefore, direct that the accused/appellant be forthwith released from jail if his

custodial detention is not required in connection with any other case.

The appeal stands allowed.

Before parting with the record, we extend our appreciation to the services

rendered by Mr. A. Ahmed, learned Amicus Curiae and recommend that the Registry

may make arrangement for payment of necessary remuneration to the learned

Amicus Curiae as per the existing norms.

Send back the LCR.

                                     JUDGE                       JUDGE

T U Choudhury




Comparing Assistant