Sri Pradip Bharali vs State Of Assam And Anr
2022 Latest Caselaw 4467 Gua

                                                                                  Page No.# 1/14

GAHC010122012016




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

                                  Case No. : Crl.A./297/2016

            SRI PRADIP BHARALI
            S/O LATE PHANIDHAR BHARALI, R/O BHAKAT PAMUWA GAON, P.S.
            PULIBAR, DIST. JORHAT, ASSAM, PIN 785001


            VERSUS

            STATE OF ASSAM and ANR

            2:DINESWAR BHARALI
             S/O LATE GAUTAM BHARALI
             R/O SATIYA GAON
             P.S PULIBAR
             DIST. JORHAT
             PIN 78500

Advocate for the Petitioner    : MR.J ALI

Advocate for the Respondent :

::BEFORE::

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

              For the appellant             :      Mr. H. Gupta, Amicus Curiae.

              For the respondents           :      Mr. D. Das,
                                                   Addl. P.P., Assam

             Date of Hearing                :    15.11.2022

             Date of Judgment               :    15.11.2022
                                                                            Page No.# 2/14



                         JUDGMENT & ORDER (ORAL)
      (N. Kotiswar Singh, J)

Heard Mr. H. Gupta, learned amicus curiae. Also heard Mr. D. Das, learned

Additional Public Prosecutor, Assam.

2. In this appeal, the appellant has challenged the judgment dated 17.03.2016

passed by the learned Sessions Judge, Jorhat in Sessions Case No.111 (J-J)/2011 by

which the appellant has been convicted under Section 302 IPC and sentenced him to

undergo RI for life and pay a fine of Rs.10,000/-, in default, to suffer further RI for

one year. The appellant has also been convicted under Section 201 IPC and sentenced

to undergo RI for a period of five years and to pay a fine of Rs.10,000/-, in default, to

suffer further RI for six months. Both the sentences were directed to run concurrently.

3. The learned amicus curiae submits that the conviction of the appellant is

primarily based on circumstantial evidence. Though there are evidences leading to the

guilt of the appellant, unfortunately, the same fall short of legal requirement for

conviction of the appellant.

4. Before we deal with the submission so advanced, we would like to briefly refer to

the facts of the case.

5. A First Information Report was lodged on 18.07.2011 by one Dineswar Bharali,

who was examined as PW1, before the Pulibor Police Station alleging inter alia that on

17.07.2011 a headless dead body was recovered from Dholi River which was identified Page No.# 3/14

as that of Arup Bharali, son of the elder brother of the complainant. It was also stated

that he learnt from reliable sources that on 14.07.2011, the deceased had a quarrel

with Pradip Bharali (the appellant herein) and one Manoj Bharali in the night and both

of them murdered him and threw the dead body in the river after cutting his head.

On the basis of the said information, Pulibor Police Station Case No.195/2011

under Sections 302/34 IPC was registered.

On completion of investigation, charge-sheet was filed against the present

appellant. Since the other accused, Manoj Bharali, was found to be a juvenile, he was

proceeded before the concerned Juvenile Justice Board with which we are not

concerned in this appeal.

6. In support of its case, the prosecution examined as many as 11 witnesses and

also proved the documentary evidences including the post mortem report. The

appellant was also examined under Section 313 Cr.PC where he denied the allegations

levelled against him.

7. The learned Trial Court, after considering the evidences on record, convicted the

appellant under Section 301 as well as 201 IPC and sentenced him as mentioned

above.

8. As mentioned above, the conviction of the appellant is based on circumstantial

evidences, which can be clearly ascertained from the observation of the learned Trial

Court made in paragraph 23, which is reproduced below:-

Page No.# 4/14

"23). From the aforesaid discussions the following circumstances have been found to be established by the prosecution:

a) Accused and the deceased stayed together in the same compound although in different houses.

b) Accused and the deceased had a quarrel on the night of 15/07/2011.

c) After the quarrel the deceased was not found and he was found to have been disappeared.

d) There is no intimation about his disappearance by the accused and his family members including his son Manoj Bharali and they did not even search for the deceased Arup Bharali.

e) The dead body of Arup Bharali was found from Dholi river in a decomposed state with his head being severed.

f) Arup Bharali was declared to be dead for about 3-7 days by 18/07/2011 by the doctor.

g) Accused Pradip Bharali absconded when the dead body of Arup Bharali was recovered from the Dholi river.

h) The son of the accused namely Manoj Bharali showed the place where the dead body was thrown in the bank of Dholi river and the I.O. drew the Sketch Map with index according to his disclosure statement.

i) Accused was apprehended by Teok P.S. of Jorhat district and he also did showed the place where the dead body was thrown which is the same place as shown by his son and from where the dead body was recovered.

j) The accused stated falsely about the disappearance of his brother Arup Bharali during his statement under Section 313 Cr.P.C. This is also a circumstance giving the missing link additionally."

9. The learned Trial Court held that the aforesaid circumstances have been duly

proved against the appellant on the basis of the evidence adduced by the prosecution Page No.# 5/14

and accordingly convicted him.

10. Before examining the aforesaid finding of the learned Trial Court, we will briefly

refer to the evidences, which have been relied upon by the prosecution.

11. PW1 is Dineswar Bharali, who lodged the FIR and identified the headless body of

deceased, Arup Bharali. He stated that he resides about 1 ½ furlong away from the

house of the accused and the occurrence took place in the night of 15.07.2011. He

stated that on the next day of the occurrence, he heard that a quarrel took place at

the house of the accused on the previous day and, accordingly, he visited the house of

the accused but he did not see the deceased Arup. After two days, a headless body

was found in Dholi river and when he went to the river bank, he noticed that police

dragged out a dead body which he identified as that of his nephew Arup. He also

stated that on the night of the recovery of the dead body, the police brought Manoj,

who is the son of the accused to his house and in his presence, Manoj confessed that

a quarrel took place between his father and the deceased as a result of which the

accused committed murder of the deceased and brought the dead body to Dholi river

where his father chopped off the head of the deceased and threw the same into the

Dholi river after tying bricks at the waist of the dead body. PW1 stated that Manoj

confessed that the bricks were brought by him as instructed by his father, i.e., the

accused.

12. The next witness is Dulon Das (PW2), who was present while the inquest was

held on the dead body. In his cross-examination, he stated that he did not show the Page No.# 6/14

dead body to the police nor he could identify the dead body.

13. One Durlov Das was examined as PW3, who was a witness to the inquest.

14. The next witness was Atul Dutta, who was examined as PW4. He was the

Government Gaonburah, who stated that he attended the Police Station when he was

called there and in the Police Station, he met Manoj Bharali, son of the appellant who

disclosed in his presence that that his father had cut Arup Bharali and threw the dead

body at Dholi river and the weapon of offence was also thrown in the river.

15. One Dilip Bharali was examined as PW5, who was a relative. He was a witness to

the recovery of the dead body. He stated that police apprehended Pradip Bharali's son,

Manoj and he was taken to his house and at his house, Manoj stated that his father

had struck the deceased with a lathi and that he (Manoj) helped him. Thereafter, his

father had taken the dead body to Dholi river where his father had cut the neck of the

dead body and the dead body was thrown in the river. He also stated that the police,

after apprehending Pradip Bharali, took him to the bank of Dholi river where he

showed the place where he had cut Arup and thrown the dead body. However, the

police could not recover the weapon of crime and the head which was thrown in the

river.

16. Nandeswar Bharali, who was examined as PW7, stated that he came to know

that accused Pradip Bharali had a quarrel with his younger brother Arup Bharali and

that Arup Bharali was no more and when he went to the house of Pradip Bharali, he Page No.# 7/14

did not find his brother Arup in his residence and the dead body of Arup was

recovered in Dholi river after about 3/4 days of the incident.

17. PW8, Bipul Das, was a witness to recovery of the headless body.

18. PW9, Dr. Tapan Das, was the person, who performed autopsy on the dead body

of Arup who found the following injuries:-

"Wounds, Position, Size and Character

1. A chop injury present on the neck at the level of the 5 th cervical vertebrae resulting in complete separation of the head from the body. Soft tissues found decomposed. The bone found cut across clearly and adherent blood clots present at the margins of the cut bone.

2. The 3rd, 4th and 5th ribs on the right side found fractured in the midclavicular bone.

3. The 3rd, 4th, 5th, 6th and 7th ribs on the left side found fractured in the midclavicular line. Adherent blood clots present at the margins.

Scalp, Skull and Vertebrae

Scalp and skull not present. Vertebrae as described.

Membrane - Not present.

Brain and spinal Cord

Brain - not present.

Spinal Cord - complete transaction at level of C5 vertebrae. Decomposed.

Liver, Spleen, Kidneys and Bladder - decomposed

Walls, Ribs and Cartilage

The 3rd, 4th and 5th ribs on the right side found fractured in the midclavicular bone.

Page No.# 8/14

The 3rd, 4th, 5th, 6th and 7th ribs on the left side found fractured in the midclavicular line. Adherent blood clots present at the margins.

Organs of Generation, Extema & Internal

External - Decomposed, Internal- healthy.

Walls, Peritoneum, Mouth, Pharynx and Oesophagus

Decomposed.

Stomach and its contents

Decomposed, contains 150 ml of dirty coloured fluid material without any smell.

Small Intestine and Its Contents

Decomposed. Contains fluid matter and gases.

Large intestine and its contents

Decomposed. Contains foecal matters and gases."

In his opinion, death was instantaneous resulting from the chop injury to the

neck.

19. PW10 was the Investigating Officer, who stated that the appellant led the police

to the place of occurrence, which was the same place where police recovered the

dead body without the severed head, which was shown to him by the son of the

accused Manoj Bharali on the basis of which the I/O prepared the sketchmap.

20. PW11, Manoj Bharali, is the son of the appellant. He was declared hostile at the

instance of the prosecution.

In his cross-examination, he denied having stated before the police that on

14.07.2011 during the night, a quarrel had taken place between his father and Arup Page No.# 9/14

Bharali and that his father had inflicted lathi blows upon Arup rendering him

unconscious. Thereafter, his dead body was lifted to the bank of Dholi river where his

father had chopped off the head of Arup with a dao and threw the dead body and

severed head to the river. He also denied having stated in presence of Nandeswar

Bharali (PW7) that he would lead the police to the place where the occurrence took

place and where the severed body of Arup had been thrown by his father. He also

denied that his father had confessed before the police that he had killed Arup with a

dao and severed his head.

21. Thus, what is evident is that there was no eye witness to the incident of killing

of the deceased.

22. We have also gone through the statement made by the appellant under Section

313 Cr. PC where he denied the various incriminating materials which were brought on

record during the heat. He stated that he was not present on the day of the

occurrence. He also stated that he did not know the reason why his son deposed

against him falsely. He did not give any further statement except denying the

allegations made against him and stating that he has been falsely implicated. He also

declined to lead any evidence.

23. The learned Trial Court, however, on the basis of the evidence, came to the

conclusion that the appellant and the deceased had quarrelled on the night of

15.07.2011 prior to the occurrence. In fact, this is one of the circumstantial evidences

relied upon by the learned Trial Court in convicting the appellant.

Page No.# 10/14

24. We, are, however, unable to find any evidence to show that there was indeed a

quarrel between the appellant and the deceased on the night of 15.07.2011. What we

have noted is that PW1 stated that on the next day of the occurrence, he heard that a

quarrel had happened at the house of the accused on the previous day. In other

words, this evidence is not a direct evidence of any quarrel between the appellant and

deceased. It has not been clarified as to whether the said PW1 himself had heard the

quarrel between the appellant and deceased. Similarly, though PW7 stated that he

came to know that accused Pradip Bharali had a quarrel with his younger brother Arup

Bharali and that Arup was no more, it is not mentioned as to the source of his

knowledge as to whether it is a direct knowledge having heard or seen the appellant

quarrelling with the deceased.

25. Under the circumstances, we are not able to give too much importance on the

aforesaid evidence to be the basis for the finding by the learned Trial Court that the

accused and the deceased had quarrelled on 15.07.2011.

26. The Trial Court also noted that though the appellant and the deceased were

staying together in the same compound although in different houses, there was no

intimation about disappearance of the deceased by the appellant and his family

members including his son and they did not even search for Arup Bharali. Certainly,

the aforesaid act of the appellant and his son cannot be said to be a normal if a

person who is a close member of the family is found missing, yet that cannot be the

basis to implicate them inasmuch as it does not establish any direct knowledge of the Page No.# 11/14

appellant of the fact of missing of the deceased person.

27. The learned Trial Court also observed that the appellant absconded when the

dead body of the deceased was recovered from Dholi river. While this aspect could be

taken into consideration as part of the chain of events, yet we have to examine

whether there are other evidences on record, which form a complete chain of events

leading to the irresistible conclusion that the appellant is the author of the crime.

What we have noted is that apart from such suspicious behaviour of the

appellant, that is, not reporting of missing of the deceased, absconding at the time of

recovery of the dead body or making statement feigning ignorance about

disappearance during his statement recorded under Section 313 Cr. PC as observed by

the learned Trial Court, we are of the view that such acts do not and cannot alone

constitute the basis for conviction as these acts do not form any conclusive evidence

on their own to directly implicate the appellant. In the present case, apart from the

aforesaid suspicious activities of the appellant, there is no other legally acceptable

substantive evidence, which links the appellant with the incident.

28. It is to be noted that the time of recovery of the dead body, the appellant had

no role to play inasmuch as the dead body was not recovered at the instance of the

appellant. There is also no evidence to show that the appellant was seen last together

along with the deceased so as to implicate him. There is also no evidence that any

weapon of crime had been recovered at the instance of the appellant.

Page No.# 12/14

29. Therefore, apart from the aforesaid suspicious activities of the appellant, we do

not find any evidence which would implicate the appellant in the commission of crime.

30. Under the circumstances, we are of the view that the circumstances so relied

upon by the learned Trial Court to convict the appellant are too tenuous to uphold the

conviction inasmuch as it would be merely based on suspicion rather than based on

any established facts and legally sustainable evidences.

31. Of course, the so-called evidence of Manoj Bharali, son of the accused that the

deceased was killed by the appellant and his dead body was thrown in the river is of

no consequence inasmuch these statements were made by Manoj (PW11), in the

presence of PW1 (Dineswar Bharali), PW4 (Atul Dutta) while in the custody of the

police, are inadmissible in law in view of Section 26 of the Indian Evidence Act. As

such, there is no admissible evidence on record to implicate the accused with the

alleged crime.

32. Under the circumstances, we are of the view that except for the strong

suspicion of commission of crime by the appellant, unfortunately, there is dearth of

substantive evidences to sustain the conviction based on circumstantial evidences. The

Hon'ble Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra,

reported in (1984) 4 SCC 116, summarized the law regarding conviction based on

circumstantial evidence in paragraph 153 thereof as under:-

"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 Page No.# 13/14

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."

33. We do not consider that the mere circumstances of his being absent during the

initial stage of the investigation and his silence are sufficient to sustain the conviction

in the absence of any other material which would implicate the appellant.

34. We have also noted that the appellant in his statement under Section 313 Cr. PC

did not make any statement in his defence except for stating that he has been falsely

implicated and he does not know why his son had made any statement against him.

Page No.# 14/14

On close perusal of the statement of his son, Manoj (PW11), we do not see that

his son made any incriminating statement against his father. In fact, he was declared a

hostile witness. We are of the view that mere false statement made by an accused

recorded under Section 313 Cr. PC cannot be a substitute for the substantive evidence

required for conviction for commission of a crime.

35. Under the circumstances, we are of the view that the conclusion arrived at by

the learned Sessions Judge in convicting the appellant cannot be sustained in law.

Consequently, we allow this appeal by setting aside the impugned judgement and

order dated 17.03.2016 passed by the learned Sessions Judge, Jorhat in Sessions Case

No.111(J-J)/2011 and the appellant is set at liberty forthwith. If the appellant is

already on bail, the bail bond and surety etc. shall stand recalled.

36. Mr. Gupta, who has ably assisted this Court as amicus curiae, be paid the

necessary fees as per Rules.

37. Let the LCR be returned forthwith to the concerned Court.

                               JUDGE                            JUDGE




Comparing Assistant