Crl.A./141/2016
2022 Latest Caselaw 3581 Gua

GAHC010005532016




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

                                        CRIMINAL APPEAL No. 141/2016


                           Indira Chetry,
                           W/O Tara Bahadur Chetry,
                           Resident of New Labar Ghari,
                           PS-Chariduar, District-Sonitpur, Assam.
                                                                                ......Appellant.
                                 -Versus-
                   1.      The State of Assam.
                   2.      Shri Amit Gurung,
                           S/O Chitra Gurung,
                           R/o Labar Ghari,
                           Pin-784102.
                   3.      Heman Thapa,
                           S/O Hetalal Gurung,
                           R/o Chariduar,
                           Pin-784102.
                   4.      Saman Thapa,
                           S/O Umesh Thapa,
                           R/o New Labarghari,
                           Pin-784102.
                   5.      Dinesh Pradhan,
                           S/O Kut Prasad Pradhan,
                           R/o 1 Gormara,
                           Pin-784102.
                   6.      Lakhyajyoti Baruah,
                           S/o Hemanta Baruah,
                           R/o Bhubula Gaon, Chariduar,
                           Pin-784102.
                           All are under Chariduar P.S.,
                           District-Sonitpur, Assam.
                                                                             ......Respondents.

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

For the Appellant: Mr. D. Borah, Mr. P.K. Das, Mr. A. Choudhury, Mr. R. Ali. ......Advocates.

             For the Respondents:            Ms. S. Jahan, Addl. PP, Assam,
                                             Mr. P. Sundi,
                                             Mr. B. Nath,
                                             Mr. M.R. Adhikari,
                                             Ms. G. Borah.              ......Advocates.


             Date of Hearing & Judgment      :       24th August, 2022



                                  JUDGMENT AND ORDER (ORAL)

             [N. Kotiswar Singh, J.]

Heard Mr. D. Borah, learned counsel for the appellant. Also heard Ms.

S. Jahan, learned Additional Public Prosecutor, Assam, appearing for the

respondent No.1; Mr. P. Sundi, learned counsel appearing for respondent

Nos.2 - 4 and Mr. M.R. Adhikari, learned counsel appearing for respondent

Nos.5 and 6.

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

acquittal dated 18.01.2016 of the present respondent Nos.2, 3, 4, 5 and 6,

who were charged of committing offence under Section 302 of IPC. The

learned Trial Court had acquitted all the accused on the ground that the

prosecution has failed to prove the case against them beyond reasonable

doubt.

3. Learned counsel for the appellant, however, submits that there are

sufficient circumstantial evidences to show that the accused private

respondents were indeed involved in the death of the appellant's son.

However, the said evidences have not been properly appreciated by the

learned Trial Court.

4. In order to appreciate the above contention, we refer to the

background facts and evidences.

5. The criminal case was launched against the present private respondent

Nos.2--6 after an FIR was filed by the present appellant to the effect that the

accused had called his son, namely, Dambar Bahadur Chetry to join them in a

picnic at Sonai Nepali Bharali river. However, he did not return home till 6

p.m. and when she asked these accused as to what happened to her son, they

said that they do not know anything and accordingly, suspecting that the

accused had killed her son, the said complaint was lodged which was

registered as Rangapara P.S. Case No.196/2011 under Section 302/201/34

IPC.

6. On the basis of the said FIR, investigation was launched and after

completion of the investigation, the prosecution filed the charge-sheet against

the present private respondent Nos.2--6 and accordingly, charges were

framed and they were tried before the Court of Additional Sessions Judge

No.2, Sonitpur, Tezpur, under Section 302/201 read with Section 34 of the

IPC, which read as follows:

―Firstly: That you on, about or before 4.9.2011 at Sonali Nepali River under Rangapara PS, in furtherance of common intention committed murder, intentionally or knowingly, causing the death of Dombor Bahadur Chetry and thereby committed an offence punishable under section 302 read with section 34 of Indian Penal Code, and within cognizance of the Court of Session.

Secondly: That you on, about or before 4.9.2011 at Sonali Nepali River under Rangapara PS, in furtherance of common intention, knowing or having reason to believe that the offence of murder, punishable with death has been committed, caused certain evidence connected with the said offence, namely, the dead body of Dombor Bahadur Chetry to disappear or knowingly gave false information, with intention to screen the offender from legal punishment, and thereby committed an offence punishable under section 201 read with section 34 of Indian Penal Code, and within cognizance of the Court of Session.‖

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

as 11(eleven) witnesses and exhibited a number of documents including the

statements of the PW-10 and PW-4 recorded under Section 164 Cr.P.C.

8. Learned Trial Court, however, on considering the evidence on record,

both oral and documentary, came to the conclusion that the prosecution has

not been able to prove the charges against the accused beyond reasonable

doubt and accordingly, acquitted them.

9. The accused had taken the plea of total denial and also did not lead

any evidence. Before we examine the judgment acquitting the private

respondents, we ourselves have gone through the evidences and sought to

find out if there is any evidence which would link the present private

respondents with the aforesaid offence.

10. As far as PW-1, namely, Roshal Limbu, a co-villager is concerned, he

stated that he knew all the accused persons as well as the deceased. He

stated that on 04.09.2011 all the accused persons and the deceased had gone

for a picnic near Bharali river and he heard that one person amongst them

had died in the river. After hearing that he along with about 20 people went to

the place and found that the accused were returning from the picnic and when

informed that it was heard that one person had died and as to what had

happened, they stated that no such incident had occurred. However, when

they went near the river, they did not find anything nor the deceased and

after 3 days the dead body of the deceased was recovered from the river

about 1½ km from the picnic spot. In his examination-in-chief, he stated that

he had told the police that he suspected that the accused called the deceased

in the jungle and murdered him and threw the dead body in the nearby

Bharali river and they had repeatedly rang and called the deceased to

participate in the picnic at that spot. However, during the cross-examination

on behalf of the defence for all the accused, he stated that he heard a hulla of

a person being dead at about 6 pm. He also admitted that he did not know

what had happened before that and who had gone for picnic. In the cross-

examination, he also stated that he knew Amit (respondent No.2), as he

belonged to the same village, but he did not know the other accused. He also

stated that he did not know how the deceased died. He also stated in the

cross-examination that it is correct that he had heard from others that the

deceased and the accused had gone for picnic but he did not have any

personal knowledge. He also stated in the cross-examination that he did not

name any person in his statement made before the police during the

investigation and that he had only stated ―hihothe‖ ―hihothe‖ (which means

―they‖). Though he denied the suggestion made to him that he did not state

before the police that the accused persons were returning from the picnic and

when he asked them as to what had happened and that they had heard that

one person had died, they said that no such incident had occurred.

A proper analysis of the said evidence of PW-1 would show that though

in the examination-in-chief he had stated that all the accused persons and

Dambar had gone for picnic near Bharali river, in the cross-examination he

stated that he did not know what had happened before he heard that one

person was dead at around 6 p.m. and who had gone for picnic. Thus, what

he stated in his chief and the cross-examination do not appear to be

consistent. However, there is evidence which implicates the accused when he

stated that the accused persons were returning from picnic and when he

asked them what had happened after being told that he had heard that one

person had died, the accused persons stated that no such incident had

occurred. This piece of evidence would indicate that the accused persons had

denied that any such incident had occurred. It is on record that the death of

Dambar had indeed occurred and as such, it can be said that the accused

persons were not telling the truth or at least were hiding something about the

incident.

11. Coming to the evidence of PW-2, Rohit Pradhan, who is a teacher in the

school, he also stated that he only knew Amit Gurung amongst the accused

and did not know the remaining accused. He also stated that about 2/3 years

ago when he was working in his field, he received a phone call from one

Mohan Rabha, who informed him that an incident had occurred near his

house, but he did not tell him the details. After hearing the information he

rushed near his house and saw many people near the river and he saw many

women asking a group of boys who had come for picnic there as to where the

deceased Dambar Bahadur was. He also stated that he heard Amit Gurung

saying something but did not hear what he said. There was a hulla and

thereafter, the police personnel reached the spot and the accused persons

were taken to the police station and the PW-2 also went to the police station.

He stated that he heard that the deceased Dambar had not returned from the

picnic and his mother was crying uncontrollably. At that stage, PW-2 was

declared hostile at the instance of the prosecution and on being cross-

examined by the prosecution after being declared hostile, he denied the

suggestion made that he had stated before the police that ―as per my

knowledge, 9 boys had gone to Jiya Bharalu river for picnic‖. On being cross-

examined by the defence, he stated that it is correct that he did not know who

had gone for picnic and what had happened. From our analysis of the

evidence of PW-2, what we can observe is that he received the information

from one Mohan Rabha, but we have been informed that the said Mohan

Rabha was not examined by the prosecution. However, from the statement

recorded under Section 164 Cr.P.C. of the said witness (PW-2), he mentioned

that one Mohan Thapa had informed him over phone about the incident and

said Mohan Thapa has been examined as PW-3. However, on perusal of the

evidence of PW-3, we do not see any reference being made to Rohit Pradhan

(PW-2) of being informed by the said Mohan Thapa. Be that as it may, what

we have noted from the evidence of PW-2 is that while he mentions that he

saw many women asking the group of boys who had gone for the picnic there

as to where Dambar Bahadur was, he did not identify the group of boys.

However, he makes a mention of Amit Gurung, who he heard saying

something but as to what the said Amit Gurung had said, PW-2 also did not

state anything. In other words, there is no specific evidence of the PW-2

making any specific reference about the involvement of the private

respondents. While he had heard Amit Gurung, who was part of the group of

boys, saying something, he stated that he did not hear what he had said.

Therefore, from the evidence of PW-2 nothing concrete can be attributed as

regards any role played by the private respondents even if these respondents

were part of the group of boys who the women had made queries about

Dambar Bahadur, the deceased.

12. Coming to the evidence of PW-3, Mohan Thapa, he stated that while he

was sitting at Jirani Sarai at Labarghari Chariali along with others, one Dulen

received a phone call and the said Dulen informed them that some boys had

gone for a picnic and one person had gone missing. Accordingly, the said PW-

3 rang up Ratul Koch (PW-4) as his house was situated near the river. Then

the said Ratul, who was examined as PW-4, informed him that he did not

know anything about any such occurrence. He, however, in his evidence

stated that thereafter, he and others saw the accused persons coming

towards the Chariali while they were returning from the picnic and when they

asked them whether any person had gone missing in their group, Amit Gurung

(respondent No.2) had informed them that one person by the name of

Dambar Bahadur had gone missing. Thereafter, PW-3 advised them to inform

the guardian, as it would be a police case. He stated that thereafter, he went

along with Ratul Koch to the river side but did not find anything and

thereafter, rang up Lihang Limbu, the President of Gaon Panchayat, who was

examined as PW-5, about the incident.

The said witness PW-3 was also declared hostile at the instance of the

prosecution and he denied the suggestion made by the prosecution that he

had stated before the police that ―today on 5.9.2011, on seeing the place of

occurrence, I doubt that may be the boy by the name Dambar Bahadur was

killed and thrown in the river by his compatriots‖. In the cross-examination by

the defence, he stated that except for Suman Thapa (respondent No.4) and

Amit Gurung (respondent No.2), who were co-villagers, he did not know the

other persons. He also stated that it is correct that he did not state before the

police that he was sitting at Labarghari Chariali and that Dulen Koch was

sitting with him and that he received a phone call about a missing boy and

then he called Ratul Koch and the accused persons came to the centre and

the accused Amit said that Dambar had gone missing and thereafter, he

advised him to go and inform the guardian and then he called up Lilang Limbu

who informed the police. He stated that it is correct that for the first time he

had stated the above facts before the Court. From the evidence of PW-3, we

also note that the said PW-3 had seen the accused coming towards the

Chariali while they were returning from the picnic and when the accused

persons were asked if any person had gone missing from their group, Amit

Gurung (respondent No.2) informed that one person by the name of Dambar

Bahadur had gone missing. Thus, what we find is that there is some evidence

through the mouth of the PW-3 that the accused persons were returning from

picnic and when asked, Amit (respondent No.2) stated that a person namely,

Dambar Bahadur had gone missing.

13. Coming to the evidence of PW-4, Ratul Koch, he categorically stated

that he did not know the accused persons in the dock and neither he knew the

deceased. He, however, stated that Mohan Thapa (PW-3) had rung him up

and enquired as to whether he knew any person had died in the river, and

then he informed him that he did not know anything. He stated that he and

Mohan Thapa had gone to the river, and there he enquired whether any

person had died in the river, they got a negative response and thereafter, he

returned. At that stage, the said witness was declared hostile at the instance

of the prosecution. On being cross-examined by the prosecution he denied the

suggestion of the prosecution that he had stated before the police that ― on

4.9.2011 some boys, 9 boys I heard, had gone for picnic near Jiya Bharalu

river. In the evening at 6.30 PM some of the said boys came and informed

that one boy amongst them had gone missing at about 1.30 PM. I doubt that

may be the other boys have killed the said boy and thrown him in the Jiya

Bharalu river. I also heard that they had consumed alcohol. I heard that they

had also swum in the river‖. In the cross-examination by the defence, he

stated that he did not know who had gone for picnic and who had died and

how he died and he stated that there were only 2/3 small children near the

river when he went there with Mohan. He also denied the suggestion that he

had stated before the police that ―today on 5.9.2011, on seeing the place of

occurrence, I doubt that may be the boy by the name Dambar Bahadur was

killed and thrown in the river by his compatriots‖. What we can see from the

evidence of PW-4 is that he was declared hostile and he did not say anything

specific attributing any wrong doing on the part of any of the accused persons

and he also stated that he did not know any of the accused persons.

14. Coming to the evidence of PW-5, Lihang Limbu, we also have noticed

that he was also declared hostile. He also stated in his deposition that he did

not know any of the accused persons in the dock nor the deceased. He stated

that he also denied the suggestion that he had stated before the police that

he had handed over 6 boys to the police. In the cross-examination by the

defence, he stated that it was dark and he did not recognize the boys taken

away by the police and he also stated that he did not have any knowledge as

to who had died and who had gone to the picnic.

15. PW-6 is the doctor who conducted post-mortem over the body of the

deceased. The findings in the post-mortem are as follows:-

―External appearance:

Rigor Mortis present.

There was decomposition of the skin and sub cutaneous tissue. Decomposition had already started.

Eyes were protruded out and partially decomposed. Sign of terror is present.

Mouth is open and correction of blood inside the mouth. There were multiple aberrations present over back of the body and chin and both hands are fisted.

No definite ligature mark was seen over the neck. There was collection of blood in the larynx and tracea. Left and Right Lung: In the right lung there was multiple area of congestion. There was no fluid in the lung.

Pericardium was congested.

Heart was partially full.

Great vessels were intact.

Abdomen was dissented. Walls were intact. Mouth and Pharyx and Oesephagus: There was collection of blood. Stomach was dissented with gas but no fluid was found. No food product was seen.

Small bowels and large bowels were dissented with gas. The scalp: Haematoma over the left frontal area of scalp measuring about 10 x 10 cm.

Scull and Vertebrae was intact.

Brain and spinal chord intact and healthy. Approximate time of death was more than 48 hours from time of conducting the PM, that is 9.30 AM.

Death is not due to drowning or hanging but may be due to some sort of respiratory obstruction.

Following viscera was preserved for sending the same to FSL:

                     (i)     Stomach with content
                    (ii)    Right kidney
                    (iii)   Piece of liver
                    Post Mortem was conducted by me and Dr G.M. Das.

In our opinion no definite cause of death could be ascertained till the forensic report of viscera is available.‖ He stated that death was not due to drowning or hanging but may be

due to some sort of respiratory obstruction and he stated that definite cause

of death could be ascertained after receipt of the forensic report of the

viscera.

PW-6 was examined after receipt of the forensic report, which was

exhibited as Exbt.-14. On the basis of the said FSL report, the PW-6 on re-

examination stated that he along with Dr. G.M. Das, SDMO, Kanaklata Civil

Hospital, gave their final opinion after a clinical analysis of viscera, that the

cause of death of Dambar Bahadur Chetry was due to acute respiratory failure

by throttling suffered by the deceased. Though he was cross-examined by the

defence to the effect that if a person falls in extreme cold water, he may

suffer from respiratory blockage as a result of dry drowning, he stated that

respiratory blockage can happen by falling in extreme cold but no external

ligature mark can occur. He also stated to the question by the Court that no

external injury was found on the neck. From the evidence of PW-6 what we

can observe is that the death of Dambar Bahadur Chetry was not due to

drowning but appears to have been homicidal in nature.

16. Coming to the evidence of PW-7, Prem Bahadur Bhujal, who is a

cultivator, he stated that he did not know the five accused persons in the dock

and he also stated that he did not know the deceased. However, he stated

that when he was going to feed his cattle he heard a hulla near Jiya Bharali.

But apart from that, he did not make any statement which would implicate the

accused. When PW-7 was asked by Mohan Thapa where the boys were

enjoying picnic, he replied that he heard a hulla near the Pipal tree which was

about 1 km away from his house and he did not go to the place and after 3/4

days the said Mohan Thapa informed him that the dead body of the deceased

was found. He also stated that he did not go to see the dead body. Thus, from

the evidence of PW-7 nothing much can be derived except for the evidence

that he heard a hulla near Jiya Bharali.

17. PW-8, Smt. Indira Chetry, is the mother of the deceased, who stated

that at about 8/8.30 AM on the day of incident, his son, who was sleeping at

that time, received 4/5 phone calls and as a result, he woke up from his sleep.

Thereafter, her son spoke over the phone. On being asked, who was calling

him, he informed that his friends had called and they had asked him to come

for picnic. Thereupon, she asked him not to go. Again there were more phone

calls and when she asked who was ringing, her son replied that his friends

were sitting in Bhanu Chawk and they were calling him. In spite of her advice

not to go, her son said that he will go and meet his friends and return. But her

son did not return after he went. PW-8 also stated that some boys came at

about 6 PM on that day and informed that Dambar was missing and Dambar

had gone towards the jungle at about 1/1.30 PM from the picnic and he did

not return. Then she rang up her husband, who asked her to inform the

police. She stated that Lilang Limbu, Lohit Pradhan and others were there

near her when she told them that her husband had asked her to inform the

police. The police was duly informed and they caught some boys and took

them away. She stated that the accused persons have conspired and called

her son to the picnic and they beat him and they killed her son.

In the cross-examination, PW-8 admitted that she did not see the

occurrence. She also stated that she did not see who her son had met and

where he had gone from their house. She also stated that she did not know

who had telephoned her son. She also stated that in the FIR she had

mentioned the accused persons on suspicion. She also admitted that on the

day of occurrence she did not know with whom her son had gone for picnic

though she knew that her son had gone with some friends.

From the evidence of PW-8 what comes out is that the deceased

apparently had gone out on the invitation of some friends for a picnic and

after he had gone for the picnic, he did not return. However, there is no

evidence that it was any of these accused who had called her son. Thus, there

is no evidence implicating any of the accused from the mouth of the PW-8, the

mother of the deceased. Though she also stated that some boys had came at

about 6 p.m. and informed her that her son Dambar was missing, she did not

mention as to who these boys were. In other words, the mother of the

deceased did not mention the identity of any of the boys with whom her son

had allegedly gone for picnic and also did not give any identification of the

boys who had apparently informed her that her son Dambar was missing and

that he had gone towards the jungle at about 1/1.30 PM from the picnic and

he did not return.

18. Coming to the evidence of PW-9, Tara Bahadur Chetry, the father of

the deceased, we are of the view that it may not be of much relevance in as

much as he was not present in the village on the day of occurrence and what

he stated was on the basis of the information given to him by his wife (PW-8).

19. Coming to the evidence of PW-10, Santa Bahadur Subba, the boatman,

he stated that while he was taking passengers in his boat, he heard a hulla

and also heard the shouting of ―mar-mar‖, but he did not mention anything

about the presence of the accused except for hearing the hulla. He also stated

that he did not know any of the accused persons in the dock. In the cross-

examination, he also stated that he did not see the persons who were doing

hulla. Thus, though the evidence of PW-10 would indicate some quarrel which

had taken place in the nearby place, he did not see who were those persons

involved in the quarrel and he did not see the accused and he also stated that

he did not know the accused persons in the dock and as such, the evidence of

PW-10 cannot be used to implicate the private respondents.

20. We will now examine the evidence of PW-11, one Dhanmoni Timung,

who is the I.O. of the case. He mentions about the arrest of Rajan @

Lakhyajeet Baruah (respondent No.6) and surrender of Dinesh Pradhan

(respondent No.5). He testified about what the witnesses Rohit Pradhan (PW-

2), Mohan Thapa (PW-3), Ratul Koch (PW-4) and Lilhang Limbu (PW-5) had

stated before him during the investigation. However, in the cross-examination

he stated that it is correct that no one had informed him that one boy was

murdered when many boys had gone for picnic. It was said that one boy was

missing.

21. In the cross-examination, the accused also had pointed out to him (the

I.O.) that PW-1 Roshan Limbu did not state before him that ―on 4.9.2011 all

the accused persons and Dambar had gone for picnic near Bharalu river/nadi.

The accused persons were returning from the picnic. We asked them what

happened. We told them that we had heard that one person had died. They

said that no such incident had occurred.‖ Thus, the defence wanted to

suggest that what PW-1 stated in his testimony before the Court was not

mentioned by him when he made the statement which was recorded under

Section 161 Cr.P.C.

22. We have also gone through the statements of the accused recorded

under Section 313 Cr.P.C. What we have found is that they have maintained

their stand that they did not know the incident and that the allegations against

them were false. We have also noted that they have not led any evidence.

23. From the analysis of the evidences as discussed above, what comes out

is that while there is some evidence to the effect that when some of the boys

who had apparently come from picnic were confronted by some of the

villagers, they stated that they did not know about the death of the deceased

or that any such incident had occurred. However, as regards the identity of

the boys with whom some of the villagers had confronted, as discussed above,

except for Amit Gurung (respondent No.2) and another person, namely,

Saman Thapa (respondent No.4), the identity of the other boys in the group

could not be ascertained. Even if the identity of the respondent Nos.2 and 4 as

part of the group of boys had been disclosed, yet there is no other evidence to

implicate these two boys, except for an inference to be drawn that they would

be in the knowledge as to what had happened with the deceased after they

had gone together. Yet it cannot be fully established from the evidence also

that the deceased had gone along with these group of boys including the

respondent No.2 and respondent No.4. The mother of the deceased who was

examined as PW-8 has not mentioned the name of any of the accused persons

who either had talked to the deceased over the phone or who had invited him

to join the group for the picnic. Though PW-8, the mother, also states in her

evidence that some boys had come around 6 p.m. on that day and informed

that Dambar was missing and that they also informed that Dambar went

toward jungle at about 1/1.30 p.m. from the picnic and he did not return, yet

she did not mention the identity of any of the boys who had apparently

informed her as mentioned above. As can be seen from above, as many as

4(four) witnesses, namely, PW-2, PW-3, PW-4 and PW-5 have turned hostile.

In other words, nothing much can be derived from their evidence as there is

no specific implication of any of the accused of any wrong doing.

24. The case of the prosecution is that the deceased had gone along with

his friends, a group of boys, for a picnic and there was a fight and the

deceased was killed by his friends and was thrown into the river. In order to

make out the aforesaid case, first of all it has to be clearly established that it

was the accused who had invited the deceased with whom the deceased had

gone to the picnic. As regards this fact, it cannot be said with certainty that it

was the accused who had invited the deceased and the deceased had gone

along with these accused for a picnic. Though there is some reference of this

group of boys being confronted by some of the witnesses, as mentioned

above, yet these witnesses had turned hostile. It is also clearly evident that

there was no eye witness as what exactly had happened to the deceased.

Though the medical evidence clearly suggests that the deceased had suffered

a violent death which was not suicidal in nature and there is some evidence

that he was throttled, yet, the involvement of any of the accused persons has

not come out in clear terms. In this connection, one may refer to the evidence

of the boatman (PW-10) that he heard a hulla and also heard somebody

shouting ―mar-mar‖. It may be also mentioned that the said PW-10 in his

statement recorded under Section 164 Cr.P.C. stated that while he was rowing

a boat, from a little distance he saw about 7/8 boys fighting and later on he

came to know that one of those boys had died and he informed the villagers

and the police about this incident. First of all, he did not reiterate before the

Court in his testimony what he had stated under Section 164 Cr.P.C.

Therefore, the statement recorded under Section 164 Cr.P.C. could not be

used unless he had reiterated the same before the Court. Be that as it may, if

we take into account his statement recorded under Section 164 Cr.P.C., the

said PW-10 did not mention the presence of any of the accused persons. What

he said was that he saw about 7/8 boys, who were fighting without

mentioning as to who those boys were. Thus, the presence of the accused is

not clearly indicated in the evidence of any of the witnesses.

25. Now we will examine the judgment. We have noted that the learned

Trial Court has exhaustively dealt with the evidences of the witnesses and

thereafter, gave the opinion in paragraphs 36, 37, 38 and 39 thereof. The

learned Trial Court held that on analysis of the evidences, there is nothing to

establish that either of the accused persons had called the deceased Dambar

and pressurized him to go and join the picnic and that the deceased had

actually gone to the picnic with the accused persons on 04.09.2011 and that

the deceased was last seen with them on the day of occurrence. The learned

Trial Court also has made the observation that the only circumstance which

has been sought to be brought into play was that the accused persons were

seen coming towards Bhanu Chowk from the picnic on their return and they

were confronted by PW-1 and others regarding the whereabouts of the

deceased. According to the learned Trial Court, the said circumstance in itself

does not help the prosecution and it was observed that even if for the sake of

argument it is accepted that the deceased Dambar did accompany the

accused persons to the picnic, the prosecution has not led any evidence which

would remotely suggest what transpired at the picnic spot leading to the

disappearance of the deceased and subsequent recovery of the dead body

from the river. The learned Trial Court also observed that in the FSL report

there were multiple aberrations noted. However, there was no definite ligature

mark found on the neck. Though the death had been attributed to throttling

there is nothing to indicate that it was the accused persons who had actually

caused such an injury on the deceased resulting in respiratory obstruction,

ultimately to his death.

26. We, having considered the evidence as discussed above, do not find

any irregularity in such a conclusion arrived at by the learned Trial Court. As

discussed above, having considered the materials on record, we do not find

any evidence to link the accused persons with the crime. The only evidence

which can be said to have emerged is that when the accused were returning

from the picnic and were confronted about the fact of missing of the

deceased, they feigned ignorance of any such incident. In our opinion, that

single piece of evidence would not be sufficient to establish the case against

the accused in as much as there are many other gaps in the prosecution case

which have not been established beyond reasonable doubt. In a case based

on circumstantial evidence, the law is very clear, which has been succinctly

put by 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.‖

27. In the present case, what we find is that except for the aforesaid

evidence of some of the accused returning from picnic and feigning ignorance

of the whereabouts of the deceased, there does not appear to be any other

evidence to link the accused with the crime. There is no evidence that the

deceased had gone with the accused or that the deceased was last seen with

them or that the accused were seen fighting with the deceased. As such, we

are of the view that the said sole evidence itself is not sufficient to sustain any

prosecution for committing offence under Section 302 of IPC.

28. Accordingly, in our view, the judgment of acquittal passed by the

learned Trial Court on appreciation of evidence does not warrant any

interference from our side. While doing so we have also kept in mind the

sound principle which has evolved in due course as noted by the Hon'ble

Supreme Court in Ghurey Lal Vs. State of Uttar Pradesh reported in

(2008)10 SCC 450, that while the Appellate Court has every jurisdiction to

overturn an acquittal, but it must be done only when it contains very

substantial and compelling reasons, which in the present case we do not find

to be present. Relevant paragraphs of the aforesaid decision of the Hon'ble

Supreme Court in Ghurey Lal (supra) are as follows

―69. The following principles emerge from the cases above :

1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

70. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's Judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's Judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.‖

29. While we decline to interfere with the acquittal of the accused, there

are certain aspects which have disturbed us. There is clear evidence on record

that the deceased son of the appellant was heard conversing over the mobile

phone with some of his friends who apparently had goaded him to join the

picnic. Though there is also evidence on record that the mobile phone was not

recovered or seized by the prosecution, we fail to understand why the

prosecution failed to take any lead from the mobile conversations which could

have been very easily ascertained from the Call Data Record (CDR) through

the concerned service provider. If the I.O. had made some attempt to find out

who the persons were who had called the deceased in the morning of the

incident, that could have given the appropriate lead and also could have

helped to identify the person(s) and if it was found that call had been indeed

made by one of the accused that could have been another evidence to

support the prosecution case. Unfortunately that vital lead does not appear to

have been seriously pursued by the I.O. Further, it is also equally unfortunate

that as many as 4(four) co-villagers who apparently seem to have known the

deceased and the potential offenders have turned hostile during the trial

which perhaps poorly reflects on our society that when an unnatural death

had occurred, the society failed to discharge the social obligation at least to

render necessary assistance to the criminal justice system.

30. With the above observations, we close this appeal as being devoid of

merit.

                       Sd/- Susmita Phukan Khaund              Sd/- N. Kotiswar Singh
                                   JUDGE                                JUDGE



             Comparing Assistant