Biren Mali vs The State Of Assam And Anr
2022 Latest Caselaw 3955 Gua

                                                                          Page No.# 1/29

GAHC010042972018




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

                              Case No. : Crl.A./88/2018

         BIREN MALI
         S/O SRI HIREN MALI, R/O VILL. RANGAMATI, UNDER PALASHBARI
         POLICE STATION IN THE DIST. OF KAMRUP (RURAL), ASSAM, PIN 781128



         VERSUS

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

         2:SMTI MINU DAS
         W/O LATE NAREN DAS
          R/O KHATIAMARI
          BAROBARI
          UNDER PALASHBARI POLICE STATION IN THE DIST. OF KAMRUP
         ASSAM
          PIN 78112




          Advocate(s) for the Appellants :   Mr. J. Das, Legal Aid Counsel.


          Advocate(s) for the Respondents : Ms. S. Jahan, Addl. P.P., Assam.

Page No.# 2/29

Before HON'BLE Mr. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

Date of Hearing & Judgment : 21st September, 2022

JUDGMENT AND ORDER (ORAL)

[N. Kotiswar Singh, J.]

Heard Mr. J. Das, legal aid counsel for the appellant. Also heard Ms. S. Jahan, learned

Additional Public Prosecutor, Assam, appearing for the respondent No.1.

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

28.11.2017 passed by the learned Sessions Judge, Kamrup, Amingaon, in Sessions Case

No.196/2014 by which the appellant has been convicted under Section 302 of IPC and

sentenced to undergo imprisonment for life and also to pay a fine of Rs.10,000/- (Rupees ten

thousand only) in default of which to undergo simple imprisonment for a month.

3. The said conviction arose on the basis of a criminal proceeding initiated against

the appellant after an FIR was lodged on 16.03.2011 by one Minu Das, the wife of the

deceased. In the said FIR it was alleged that at around 5.30 a.m. on 16.03.2011 when she

was sleeping, her husband got up from bed and while he was lighting lamp and incense sticks

after completing his morning ablutions and other chores, someone called him away saying

that he was needed for some urgent work and at around 6 a.m., her husband went away

along with that unknown person on his bicycle. Later on, at around 6.40 a.m. she came to Page No.# 3/29

know that some unknown person had cut her husband into two pieces with sharp weapon

and left his body near Hakarapara Bamunpara train line. It was also mentioned in the said

FIR that the day before the incident i.e. on 15.03.2011 at around 7 p.m. and on the day of

the incident i.e. on 16.03.2011, after her husband's departure from his residence, one

Harabilash Das, R./O Kollapara, had threatened over phone to abduct or kill her husband. He

also threatened that if he could not kill her husband, he would kill her son.

On the basis of the said FIR lodged, a police case being Palashbari P.S. Case

No.48/2011 under Sections 120(B)/302/506 of IPC was registered on the basis of which

investigation was launched and on completion of the investigation charge-sheet was filed

before the Court. Accordingly, charges were framed against two persons, namely, (i)

Harabilash Das, who is now acquitted and (ii) Biren Mali, the appellant herein, by the

Sessions Judge, Kamrup, Amingaon, who took cognizance of the said offence as follows:

"1. On 16.03.2011 at about 5.30 a.m. under Palashbari P.S. both Harbilas Das and Biren Mali entered into criminal conspiracy to commit the offence of murder of deceased Naren Das, which is punishable under Section 120(B) of the IPC.

2. On the same day, time and place both of Palashbari P.S. both Harbilas Das and Biren Mali intentionally committed murder causing the death of Naren Das, and thereby committed an offence punishable under Section 302/34 of the IPC."

4. On those charges being denied by both the accused, the trial commenced. The

prosecution examined as many as 8(eight) witnesses. The defence also adduced evidence

and also produced 2(two) witnesses in their defence and they denied the allegations made

against them.

5. The learned Sessions Judge after considering the evidence on record, acquitted

the accused Harbilas Das, but held that the prosecution has been able to prove the charge

against the present appellant Biren Mali under Section 302 of IPC beyond all reasonable

doubts and accordingly, convicted the appellant under Section 302 of IPC.

Page No.# 4/29

6. Before we proceed to consider the grounds taken in this appeal that the

conviction of the appellant is purely based on the circumstantial evidence and there is no

clear linkage established by the prosecution, we will examine the evidence on record.

7. The first witness Smt. Anu Garo was examined as P.W.1. She is the sister-in-law

of the deceased Naren Das. She deposed that she was informed by the son of the deceased

Pranab Das that his father had been killed by the accused persons and was lying dead in

Hakarapara, Bamunpara railway line under Palashbari Police Station and accordingly, she

along with her son, daughter-in-law Jeuti Boro, her sister Bibha Das and her daughter

Sangeeta Boro went to the place of occurrence, where they found the dead body lying at

above mentioned place of occurrence and there were severe cut injuries at the neck and

throat of the deceased. The dead body of the deceased was taken to his house when her

sister i.e. wife of the deceased Naren Das informed that the accused Biren Mali had called

Naren Das (deceased) from his house on early morning and the other accused Harbilas Das

was threatening her husband since 15.03.2011 that either he would kill Naren Das or would

kidnap his son, on the basis of which information the wife of the deceased lodged the FIR.

In the cross-examination on behalf of the accused Harbilas Das, she stated that she

heard about the incident from her sister. She also mentioned that the threat given to her

sister was not made in her presence.

On being cross-examined on behalf of the accused Biren Mali, the appellant herein,

she stated that she was acquainted with accused Biren Mali as he was a friend and relative of

the deceased Naren Das and he used to visit the house of the deceased Naren Das regularly.

She stated that Biren Mali had called the deceased Naren Das and they went out by bicycle Page No.# 5/29

on the day of occurrence. She also mentioned that on the day of the occurrence her sister

informed that she received a phone call from the accused Harbilas Das, who threatened her

to kill her husband and she was weeping and in the meantime, the accused Biren Mali came

and called Naren Das who went out with the said Biren Mali. She stated that on earlier

occasion also Naren Das used to walk with Biren Mali.

8. The next witness examined was Smt. Minu Das as P.W.2, the wife of the

deceased. She deposed that on the day of the incident during the morning hours, the

accused Biren Mali had visited her residence and at that time her husband was taking bath.

She also stated that on the previous evening one person who identified himself as a friend of

her husband made a call to her husband and inquired about him stating that he was calling

from Batarhat. She also stated that on the day of occurrence when Biren Mali, the appellant,

was present in her house, one phone call again came in her mobile phone who identified

himself as Harbilas Das and said that he wanted to meet her husband urgently informing that

he was the one who called her previous day from Batarhat. She stated that thereafter, her

husband left along with the accused Biren Mali and at around 10/11 a.m. one Tapan Das

came to their house and informed them that Naren Das was engaged in a fight with a person

near the railway line. Hearing this, she went near the railway line and saw a gathering of

people at that place and came to know that her husband had been killed. Accordingly, she

suspected that both Harbilas Das and Biren Mali were involved in killing her husband.

During the cross-examination on behalf of both the accused, she mentioned that the

FIR was written by another person in the police station and she did not remember the name

of that person. She stated that she had met that person for the first time in the police station.

She also stated that on the day of occurrence her husband had gone out with Biren Mali from Page No.# 6/29

their residence at around 5 a.m. in the morning and Biren Mali used to visit their house

frequently as he was her husband's distant relative. She also stated that prior to the incident

also, her husband used to go out with Biren Mali to different places and on that day of

occurrence both Biren Mali and her husband went from their residence on their own bicycles

and she received a phone call from Harbilas Das when her husband was leaving the residence

along with Biren Mali. Accordingly, she could not convey the phone call received from Harbilas

Das to her husband. However, she had informed her husband about the phone call received

on the previous day, but she could not mention the name of the person from whom she

received the call. She stated that Harbilas Das and Biren Mali never jointly visited their

residence. She also denied that in her statement recorded by the police she did not mention

that the person who made the call on the previous day of the incident made another call on

the day of the occurrence and he had disclosed his name as Harbilas Das. She also stated

that on the day of occurrence two persons visited her house and inquired about her husband

after his departure along with the accused Biren Mali.

9. The next witness examined was P.W.3 Sri Radhe Shyam Das who deposed that on

the day of occurrence when he was sweeping the front side of his residence, he met Naren

Das and after exchanging pleasantries, he returned home. Then he went to the market to sell

vegetables but when he returned home, his wife informed him that Naren Das has expired.

As the news was shocking, he did not go to see the dead body of Naren Das and he did not

know the cause of death of Naren Das and about the person who might be involved in this

incident.

10. Narayan Das was examined as P.W.4. He deposed that on the day of occurrence

while he was answering call of nature, he saw the deceased Naren Das sitting with the Page No.# 7/29

accused Biren Mali near the railway line and he exchanged pleasantries with Naren Das who

told him that he had come to meet the priest. After attending nature's call he returned home.

He stated that after about half an hour, on hearing a commotion that a person has been killed

in a railway accident, he went near the railway line and found the dead body of Naren Das

lying in that place in an injured condition. However, he did not see the accused Biren Mali at

that place. He was a witness to the seizure of one Bicycle, produced by one Kamal Kalita. His

statement was recorded under Section 164 of the Cr.P.C. before the Judicial Magistrate. He

stated that seeing the appearance of the dead body of Naren Das, he suspected that he had

been killed by some miscreants. However, he stated that he has no knowledge as to who was

the assailant.

11. In the cross-examination on behalf of Biren Mali, he stated that when he met

Naren Das and Biren Mali near the railway line, he noticed the accused Biren Mali, standing

on the railway line while the deceased was sitting in close proximity to the railway line and he

also stated that it is not a fact that he denied that the deceased died due to railway accident.

12. The next witness was Girish Das, P.W.5, who is the elder brother of the deceased.

He stated that in the morning hours of the alleged incident, his brother Naren Das had come

to his residence and paid an amount of Rs.500/- in connection with felling of a coconut tree

and at that time Biren Mali was standing on the road in front of his residence. After paying

the amount Naren Das left his residence with Biren Mali on their respective bicycles. He

stated that after some time two boys came to his house and inquired about Naren Das

whereupon, he informed them that he had left his residence a short while ago. Thereafter,

Girish Das left his residence in connection with his work and on the way he heard from a lady

shopkeeper the dead body of Naren Das was found near the railway line with cut injuries.

Page No.# 8/29

Thereupon, he went to the spot and saw the dead body of his brother lying near the railway

line with cut injury on his chin. He also saw the bicycle of his brother parked near the place.

Seeing the dead body he suspected that his brother had been killed by the appellant Biren

Mali as on that morning he was with him. However, he did not have any personal knowledge

as to who had killed him.

On being cross-examined on behalf of the accused Biren Mali, Girish Das stated that

the deceased had visiting terms with the appellant Biren Mali. However, he did not know

where the appellant and Biren Mali had set out on that morning after they left his residence.

He also stated that he did not know the identity of the two boys who came to inquire about

his brother. He also stated that the said two boys came to his house after 10 to 20 minutes of

the departure of Naren Das with the appellant.

13. The next witness was Dr. Rituraj Chaliha, who was examined as P.W.6. P.W.6

performed the post-mortem examination on the dead body of the deceased on 16.03.2011

and he testified that he found the following injuries:

Injuries

i) An abrasion over the left knee measuring 1 cm x 0.5 cm.

ii) An incised wound over the right of the neck measuring 10 cm x 6 cm x muscle deep.

iii) An incised wound over the left deltoid measuring 4 cm x 2 cm x muscle deep.

iv) An incised wound over the chin on the right side measuring 8 cm x 1 cm and cutting the bone.

v) An incised wound over the back of the next measuring 10 cm x 3 cm slightly cutting the left ear.

vi) An incised wound over the back of the next measuring 6 cm x 3 cm x muscle deep.

Page No.# 9/29

vii) An incised wound over the back of the neck measuring 8 cm x 3 cm x muscle deep.

viii) An incised wound over the back of the neck measuring 15 cm x 2 cm and cutting the 7th cervical vertebrae.

ix) An incised wound over the back of the left arm measuring 8 cm x 3 cm x muscle deep.

As per his opinion death of Naren Das was due to shock and haemorrhage as

described above and these injures were ante-mortem caused by heavy sharp cutting weapon

and homicidal in nature and these injuries were sufficient to cause death in the ordinary

course of nature.

To the query of the Court he stated that in his opinion the injuries sustained by the

victim do not give the impression that the said injuries were caused as a result of railway

accident.

14. The next witness, Bhabesh Talukdar was examined as P.W.7. He is the brother-in-

law of the deceased. He stated that on 16.03.2011 one person called him over telephone and

informed him that his brother-in-law Naren Das had expired. Accordingly, he went to the

residence of his brother-in-law where he was informed by his sister, the wife of the deceased,

that on the previous night some unidentified person had telephoned her and inquired about

her husband Naren Das and the said persons also reportedly threatened her that they would

kidnap her son and Naren Das and when she asked for their indentification, the phone was

disconnected. He also stated that he was informed by some person that Naren Das was seen

talking to the accused Biren Mali at the spot during morning hours.

In the cross-examination on behalf of the accused Harbilas Das he stated that he did

not mention in his statement made before the police that he was told by his elder sister about Page No.# 10/29

the threats given to her by some unidentified person over telephone. The said witness

Bhabesh Talukdar was also cross-examined on behalf of the appellant Biren Mali, who stated

that he was acquainted with the appellant Biren Mali as he used to visit the residence of his

brother-in-law and that his sister Smt. Minu Das had informed him that the accused Harbilas

Das had threatened her through telephone call that he would kill her husband.

15. The next witness examined was Dharani Tamuli, the IO of the case, as PW8, who

stated that on the day of incident at around 8 a.m. the Gaonbura Nikumoni Das informed him

over telephone that one dead body was found lying by the side of the railway track at Village-

Hokorapara. After making a

GD Entry, he along with the Officer-in-Charge of the Palashbari Police Station and other staff

went to the place of occurrence. There, they found a lot of people and the inquest was held

at the spot. Necessary formalities were performed. Evidence of witnesses were recorded and

caused lodging of the ejahar. He also seized the mobile phone from Smt. Minu Das, who

informed him that she was threatened by the accused Harbilas Das over telephone that either

her husband would be taken away or her son would be killed. He also seized a mobile phone

of the accused who was arrested. The IO also seized the bicycle used by deceased on the day

of occurrence and which was lying on the place of occurrence.

16. The accused also led evidence in their defence. The defence examined two

witnesses. The appellant himself was examined as D.W.1 and in his statement he stated that

he had a stationery shop at Bijoynagar. He stated that he knew the deceased Naren Das, who

was a distant relative of his father and had good relationship with him and were on visiting

terms. The deceased used to come to his shop and on the previous day of the incident also,

he had come to his shop at about 4.30 p.m. The deceased told him that on the next day he Page No.# 11/29

was planning to go to meet a priest to collect the list of articles for puja which was supposed

to be held in his house. On the day of the incident the deceased was to collect the puja

articles from the priest. When the deceased asked him to accompany him, he declined to do

so as he was to go to Guwahati to buy some articles for his shop. However, since the

deceased said that they can go together as it was the same road, he agreed to accompany

him. On the day of occurrence, he went to the house of the deceased in the morning at

about 5.35-5.45 a.m. and from there they both started for Hakrapara on their respective

bicycles. On the way they met one or two persons known to the deceased. When they

reached near Hakrapara railway line the deceased met with one person known to the

deceased and the deceased was talking to him and when the said person asked the deceased

as to why he had come, the deceased replied that he had come to meet a priest. Thereafter,

the appellant went ahead towards Guwahati while the deceased remained behind to meet the

priest. The appellant stated that he went to Bijoynagar on his bicycle and thereafter, by bus

and reached Machkowa, Guwahati at around 9.30 a.m. and after purchasing his articles, he

returned to Machkowa bus stand at around 11.30 am. At the bus stand, one Paban Thakuria

called him and when he came nearby him, he told him that one dead body was found in the

morning near Hakrapara Railway and asked him whether he knew about the incident. He then

told that he did not know about the incident since he had come out in the morning and asked

him about the name of the deceased person but Paban Thakuria told him that he did not

know the name of the deceased person. He then came to Bijoynagar along with goods he

purchased and after putting the goods in the shop and locking the shop, he was about to go

to the house of Naren Das but at that time, one person told him that the police was searching

for him. Then he got scared and instead of going to deceased's house he went to his own Page No.# 12/29

house. There his family members told him to go to the police station on the next day but he

went to the police station and narrated the incident to the police. The police then arrested

him and forwarded him to the Court.

He was cross-examined by the Public Prosecutor. In the cross-examination he stated

that he did not remember the exact date of the incident, however, on that day he met the

deceased at about 5.30 a.m. and after starting together from his home they reached

Hakrapara Railway line after 10 to 15 minutes. He stated that he did not remember the date

on which the police arrested him. He also stated that it is not a fact that he did not voluntarily

go to the police and it is not a fact that the police arrested him from his house. He denied

that he had conspired with the other accused Harbilas Das to kill the deceased and he also

denied that he had killed the deceased.

17. One Paban Thakuria was examined as DW-2 on behalf of the defence. He deposed

that he knew the accused Biren Mali and he was from his village. But he did not know the

other accused Harbilas Das. He deposed that the incident occurred on 16.03.2011. On that

day at around 8.30 a.m. when he came out from his house to go to Guwahati, near the bus

stop he heard from the villagers that a person was killed near the railway track. He also heard

from the villagers that the deceased was coming along with Biren Mali on that day. After

hearing the incident he came to Guwahati to meet his lawyer because of certain civil case

pending in the Court. On that day, when he arrived at Machkhowa at around 11.30 a.m. he

saw the accused Biren Mali carrying two bags in both the hands and then he immediately told

him that he heard from the villagers that the person who was coming with him in the

morning was lying dead on the railway track and he was not certain whether he was cut by

train or killed by somebody. Thereafter, he rushed to work and did not discuss anything more Page No.# 13/29

to him.

In the cross-examination by the prosecution, he stated that he did not know the name

of the person who had first reported about the incident that a dead body was lying near the

railway track. He stated that he met the accused at around 11.30 a.m. at Machkhowa. He

also stated that he did not know where Biren Mali was before meeting him there. He stated

that he came out from his house around 8.30 a.m. and he took the bus at around 11 a.m. He

denied that he had made false statement to save the appellant.

18. We now briefly refer to the statements of the accused recorded under section 313

of Cr.P.C. As regards the accused Harbilas Das, he denied having any knowledge about

incriminating evidence which was brought on record and he denied that he had threatened

the wife of the deceased as mentioned by the witness Minu Das. Coming to the other

accused, Biren Mali, the appellant herein, he also denied of having any knowledge about the

incident. To the question by the Court about the evidence of PW-1 Smti Anu Garo, about the

deceased and appellant going away together, he answered that on the day of incident the

deceased had gone to meet the priest and they had gone out together. He, however, stated

that Harbilas Das was not known to him. To the question put by the Court about the evidence

of Narayan Das, P.W.4 who stated that on the day of occurrence he met the deceased and

the accused Biren Mali near the railway line and Biren Mali was standing near the railway line

and the deceased was sitting close to the railway line, he answered that on that day Narayan

Das was talking to the deceased and at that time, he and Naren were standing together. To

the other questions put by the Court, he either denied or claimed ignorance.

19. The reasons on which the learned Trial Court had convicted the appellant on the Page No.# 14/29

basis of circumstantial evidence can be ascertained from paragraph 35 of the impugned

judgment. In order to understand the submissions advanced and as to whether such

conclusions arrived by the learned Trial Court are supported by the evidence on record, it may

be appropriate to reproduce the aforesaid paragraph:-

"35) Now to consider the circumstantial evidence as a part of the prosecution story the following are the happenings which has emerged from the testimony of witnesses are as follows-

i. One fine morning one of the accused Biren Mali came to the house of the deceased when deceased was doing his morning bath. After 10-15 minutes the deceased went out from his house along with accused Biren Mali on their respective bicycles.

ii. In the meantime wife of the deceased received a phone call from an unknown caller who have threatened her to kill her husband and kidnapped her son.

iii. Immediately, after 10-20 minutes of departure of the deceased from his house two boys came and enquired about the deceased.

iv. The deceased went to the house of his brother and paid an amount of Rs.500/-

which was payable for felling a coconut tree and that time the accused Biren Mali was seen standing in front of the house of the brother of the deceased by one of the witness.

v. The deceased was seen near the place of occurrence along with accused Biren Mali by one of the witness with whom the deceased talked and said that he is waiting for a priest.

vi. After half an hour the said witness heard about the incident and saw the dead body lying with cut injuries near railway line.

vii. The bicycle of the deceased was recovered from the place of occurrence.

viii. During investigation the accused was arrested on 22.03.2011 from his house after two attempts and after 4 days of the incident."

20. As regards the findings of the learned Trial Court that one fine morning one of the

accused Biren Mali had come to the house of the deceased when the deceased was taking his Page No.# 15/29

morning bath and after 10-15 minutes the deceased went out from his house along with the

accused Biren Mali on their respective bicycles, these facts are not in dispute. In fact, there is

sufficient ample evidence on record to show that the deceased had gone out from his house

along with the appellant Biren Mali in the morning of the fateful day.

21. As regards the next fact which was taken into account by the learned Sessions

Judge that in the meantime, the wife of the deceased received a phone call from an unknown

caller who had threatened to kill her husband and kidnap her son, this fact though was

categorically stated by the PW-2, the wife of the deceased, we find it difficult to accept the

same to have been proved. A careful reading of the evidence of the PW-2 Smt. Minu Das,

would show that she had categorically stated that on the day of occurrence while Biren Mali

was present in their house, one phone call again came to her mobile phone and the person

identified himself as Harbilas Das and he said that he wanted to meet her husband urgently.

She goes on to testify that the caller also stated that he was the person who had called her

on the previous day from Batarhat. PW-2 continues to depose that thereafter, her husband

left along with accused Biren Mali. The said testimony of the PW-2 would therefore indicate

that she knew about the phone call made by one Harbilas Das from Batarhat, but she did not

inform her husband. As regards the phone call as mentioned in the FIR it is regarding certain

threat issued to her husband and her son. In our view, if such a threat was indeed conveyed

to her by the said Harbilas Das, we fail to understand why such a threatening call was not

conveyed to her husband. From the testimony of PW-2 before the Trial Court, there is nothing

to indicate that she had conveyed the said threatening call to her husband which we find it

difficult to accept in as much as under normal circumstances when any such threatening

message is received by a member of a family specially to a wife, it would have been conveyed Page No.# 16/29

to her husband at the earliest opportunity. There is nothing in the testimony of PW-2 before

the Trial Court to indicate that she had passed on the threatening message to her husband,

though as per the testimony of PW-2 her husband left the house after she received the said

threatening message.

22. Under such circumstances, we are unable to hold that the wife of the deceased

received phone call from an unknown caller threatening to kill her husband and kidnap her

son as this allegation does not appear to be corroborated by evidence on record.

23. The other circumstance which has been relied upon by the learned Sessions Judge

is that immediately after 10-20 minutes of departure of the deceased from his house, two

boys came and enquired about the deceased. The said statement was made by PW-5, the

elder brother of the deceased. However, the identity of these two boys has not been

disclosed, nor allegations were made to find out and examine them, either during the

investigation or the trial. Under the circumstances, it will be difficult to accept the statement

made by PW-5 that two boys had come and enquired about the deceased to be credible.

The other circumstance, which has been relied upon by the learned Sessions Judge is

that the deceased had gone to the house of his brother and paid an amount of Rs.500/-

which was payable for felling a coconut tree and that time the accused Biren Mali was seen

standing in front of the house of the brother of the deceased by one of the witness. As far as

this aspect is concerned the said statement merely corroborates the prosecution case that the

deceased was seen along with the appellant before the incident occurred. Apart from that,

this statement does not show any act on the part of the appellant which is incriminatory in

nature to him.

Page No.# 17/29

24. The other evidence which has been referred to by the learned Sessions Judge is

that after half an hour, PW-4 heard about the incident and he saw the dead body lying with

cut injuries near the railway lines. This is the evidence by which the learned Trial Court

sought to show that the difference in time when the deceased was seen last together with

the appellant, and the death of the deceased was very less to rule out involvement of these

persons in the incident. As regards this evidence, we are of the view that this aspect has to

be examined with reference to the other evidences which came on record. It is true that PW-

4 saw the deceased sitting along with the appellant near the railway line when he had gone

to attend nature's call, where he exchanged pleasantries with the deceased and thereafter,

after attending nature's call, he returned home. He stated that after about half an hour, he

heard a commotion that a person had been killed in a railway accident. From the above

evidence of PW-4, it appears that he had heard about the commotion after half an hour of his

returning home, but before he returned home he had to attend nature's call and before that

he met the deceased and the appellant. As to when and how long the PW-4 took to attend

the nature's call has not been indicated. Assuming it may take 15 to 20 minutes, certainly it

would have taken some more time for him to return home. Reading of the evidence of PW-4

would indicate that after about half an hour of returning home he heard the commotion. We

will accordingly assume that the last time he saw the deceased along with the appellant and

when he heard the commotion may be around one hour or so. On the other hand, there is

also evidence as per the testimony of PW-2 that around 10/11 a.m. in the morning one

person Tapan Das had come to the residence and informed her that the deceased was

engaged in a fight with another person near the railway line. In the FIR it is mentioned by the

said witness that at around 6.40 a.m. she came to know that some unknown person had cut Page No.# 18/29

her husband into two pieces with sharp weapon and left the body near Hakarapara

Bamunpara train line, though in her deposition before the Court she stated that at around

10/11 a.m. she was informed by Tapan Das that her husband was engaged in a fight with

another person near the railway line. If we have to accept the deposition of the PW-2 as

correct, then the incident happened at around 10/11 a.m. and not before that and if we

accept the timing given in the FIR, it happened around 6.40 a.m. However, if we consider the

evidence of PW-4 except for a gap of about one hour, as mentioned above, we are also not

able to ascertain the approximate time when the PW-4 heard the commotion that a person

had been killed. PW-4 had stated that after about half an hour of returning home, he heard

about the incident and saw the dead body lying with cut injuries and this evidence does not

appear to be consistent with the testimony of PW2. Thus, this evidence which had been relied

upon by the learned Sessions Judge that after about half an hour the PW-4 heard about the

incident and saw the dead body lying with cut injuries near railway line does not appear to be

fully corroborated.

The other evidence which has been relied upon is that the recovery of the bicycle from

the place of occurrence. Even if the said fact is held to be proved, it is merely corroborative

evidence that the deceased was at the place of occurrence as it had been stated by several

witnesses that he had gone on his bicycle. This fact, however, does not implicate the

appellant. It is also to be noted that the place of occurrence is a public place accessible to the

general public as appears from the evidence of PW4.

25. The other factum which has been taken into account, which according to the

learned Sessions Judge implicates the appellant, is that during the investigation the accused

was arrested on 23.03.2011 from his house after two attempts by the police to arrest him Page No.# 19/29

and after four days of the incident. Assuming that this fact is also established as an act of

conscious avoidance from the legal process, this Court has to examine as to whether the facts

which were established form a complete chain so as to clearly implicate the appellant.

For this, we ourselves also proceed to examine the evidence on record.

26. As far as the factum of the deceased being last seen together with the appellant is

concerned, there cannot be any doubt, in as much as the appellant in his own evidence as

DW-1 before the Court also admits that he had gone with the deceased. However, this

evidence itself is not sufficient to implicate the appellant in as much as it ought to be followed

by other evidences to show a clear connection of the appellant with the crime, e.g., recovery

of weapon of crime from the appellant or at his instance or that the time gap between the

last seen together and death of the deceased was so short that the involvement of the others

has to be ruled out or the behaviour of the appellant after the incident, the motive, etc. Apart

from the aforesaid evidence of last seen together and the arrest of the appellant on

22.03.2011, there is no other incriminating evidence against the appellant.

In respect of a case based on circumstantial evidences, it is the generally accepted

position of law that motive would play a very important role. Motive for committing a crime

would pale into insignificance if the evidences on record are wholly credible, reliable and

clearly points to the commission of the offence by the accused. For example, in a case where

a person is seen to have stabbed somebody in presence of eye witnesses and if such ocular

evidence is properly established, the intention perhaps may not play a very important role,

but in the present case, there is no eye witness account of manner in which the deceased

was assaulted and killed. Thus, in our view, the motive also requires to be examined. The Page No.# 20/29

evidence on the contrary, however, shows that there is no enmity between the appellant and

the deceased. On the contrary their relationship appears to be cordial in as much as almost

all the witnesses have testified that they were related and the appellant had been regularly

visiting the house of the deceased.

27. On the other hand, there is evidence on the basis of the testimony of

the PW-2 that the other accused Harbilas Das had conveyed the threatening message to the

wife of the deceased that the deceased or her son may be harmed. Thus, there is clear

evidence of animosity of the other accused Harbilas Das with the deceased. But what we

have noted is that the said Harbilas Das has been acquitted by the learned Trial Court on the

ground that there is no conclusive proof against him.

Perusal of the evidence of the PW-2, the wife of the deceased, shows that she was

informed by one person Tapan Das that the deceased was engaged in a fight with another

person near the railway line. From the above, it appears that Tapan Das was familiar to the

said PW-2 Minu Das and the deceased and in all probability would have been familiar with the

appellant also. If the said Tapan Das had stated that Naren Das was engaged in a fight with

another person, in all probability the said other person was not the appellant as otherwise

Tapan Das might have mentioned his name. The fact that the said Tapan Das who is

otherwise familiar with Naren Das and the PW-2, did not mention the name of the appellant,

who is known to be a regular visitor to the deceased, would perhaps indicate that it was not

the appellant with whom the said deceased Naren Das was engaged in a fight.

28. The appellant also has sought to prove that he was not present at the place of

occurrence when the incident occurred and that he was away in Guwahati for purchasing Page No.# 21/29

articles for his shop. In this regard, he examined himself as DW-1 to the effect that he had

reached Guwahati at around 9.30 a.m. and after purchasing his articles he came back to

Machkhowa Bus Stand at around 10.30 a.m. for returning home, where he met with one

Paban Thakuria, who was examined as DW-2. The said Paban Thakuria stated in his evidence

that he had gone to Guwahati to meet a lawyer relating to some civil matter pending in the

court and on that day when he arrived at Machkhowa at around 11.30 a.m., he saw the

appellant carrying two bags in both the hands. There is no suggestion by the prosecution that

the said Paban Thakuria was a planted witness. Perusal of his evidence also does not indicate

that he could be planted by the appellant to fit his case of alibi that the appellant was not

present at the place of occurrence at the time of occurrence though he was present prior to

it.

29. In this regard, we have also considered the submissions advanced by the learned

Additional Public Prosecutor, Assam that there are certain inconsistencies in the statement of

DW-1 and DW-2 as regards the information which was exchanged between them. While DW-

1, the appellant stated that when he went to the bus stand, the DW-2 called him and when

he came nearby him, he told that he was informed that one dead body was found in the

morning near Hakrapara railway line and he asked him whether he knew about the incident,

then DW-1 told him that he did not know since he had come out in the morning and then he

asked him regarding the name of the said deceased person. DW-2 said that he did not know

the deceased. Thus, from the evidence of DW-1 what he is trying to indicate is that he did

not know the identity of the deceased and when DW-2 asked him, DW2 did not inform him of

the identity of the deceased. It is thus projected that as if DW-1 i.e. the appellant did not

know the identity of the deceased. On the other hand, DW-2 says in his evidence that when Page No.# 22/29

he arrived at Machkhowa at around 11 a.m. he saw the appellant carrying two bags and

immediately told him that he heard from the villagers that the person who was coming with

him (DW-1) in the morning was lying near the railway track and he was not certain whether

he was cut by train or he was killed by somebody. Thus, from the evidence of DW-2 it

appears that DW-1 was informed of the identity of the deceased by the DW-2, but DW2

feigned ignorance. As far as this aspect is concerned, we are also of the view that there is

some inconsistency as regards the information relating to the identity of the deceased in the

conversation between DW-1 and DW-2. While DW-1 claimed to have not known the identity

of the deceased, DW-2 mentioned about the identity of the deceased to DW-1 when they

were conversing. This certainly can throw a doubt on the veracity of the evidence of DW-1 as

to whether he was hiding certain facts. But in our opinion, even if DW-1 knew something

about the incident and was not telling the truth, and this can be used against him. Yet, the

fact also remains that the evidence of DW-2 corroborates the evidence of DW-1 that he was

away in Guwahati in the morning at least around 11.30 a.m. Though the learned Trial Court

has held that it is possible that the deceased after committing the crime had left for Guwahati

as mentioned in paragraph 46 of the impugned judgment, that from the morning of 5.30 a.m.

to 11.30 a.m. there was enough time for covering the distance from Bijoynagar to Guwahati

and the probability of his presence at the place of occurrence cannot be ruled out in the

present case. This observation also indicates that there is some element of uncertainty also.

30. However, in our view, such presence must be firmly established but not merely on

probability. We are also of the view that the appellant might have been present in the place

of occurrence, yet the probability that he was not there also cannot be totally ruled out in

view of the evidence of DW-2. In our view, every fact which forms the chain in establishing Page No.# 23/29

the case under circumstantial evidence must be established beyond reasonable doubt. From

the reading and consideration of the evidence of DW-1 and DW-2, it however cannot be said

with certainty that the appellant was present in the place of occurrence at the time when the

incident occurred in as much as there is also probability that he might have left the place of

occurrence before the incident occurred. In fact that is what he claims in his evidence as DW-

1 that he left the place of occurrence after meeting the deceased in the morning after coming

together from his home at Hakrapara.

31. Though the presence of the appellant with the deceased has been proved and the

last seen together can be proved beyond reasonable doubt but what actually happened

thereafter, the evidence is not clear at all.

32. In fact, there is evidence to show that the appellant was in Guwahati at around

11.30 a.m. and he was seen with two bags by the DW-2 which would indicate that he had

completed his shopping, which would normally be presumed to have taken about one hour in

which event, he must have come to Guwahati around 10/10.30 a.m. and for which he must

have started from Bijoynagar at around 9 a.m. Though there is a time gap of about 2/3 hours

between the incident and his departure from the place, yet the presence of the appellant has

not been proved near the place of occurrence. He was not seen with the deceased having

any kind of confrontation or quarrel though PW-2 states in her evidence that Tapan Das had

informed that her husband was engaged in a fight with another person. If the names of the

appellant and deceased had been mentioned by Tapan Das, perhaps that would established

the quarrel between the deceased and the appellant before the incident but there is no such

evidence. Then FIR was lodged soon after the incident, but while mentioning about certain

threatening calls by the other co-accused, there is no allegation about the role of the Page No.# 24/29

appellant in the FIR. In fact, the name of the assailant has not been mentioned at all. It has

been shown to be unknown though in the evidence before the Court, the name of the

appellant has been clearly mentioned.

33. There is also evidence to the effect that the deceased was planning to meet a

priest in connection with certain puja. This factum mentioned by DW-1 that the deceased was

planning to meet the priest has been also substantiated by the evidence of P.W.4.

34. Though the two boys who appear to play certain role, in the whole episode, their

identity has not been found out. The role of two boys also has come up in the evidence. PW-

2, the wife of the deceased mentioned in her cross-examination that on the date of

occurrence two persons visited their residence and enquired about her husband after

departure of her husband from their residence along with the accused appellant Biren Mali.

Similarly, PW-5 also mentions in her evidence that after the deceased had paid an amount of

Rs.500/- in connection with felling of a coconut tree to him the deceased left his residence

along with Biren Mali, the appellant, in their respective bicycles and after sometime two boys

came to his house in two cycles and enquired about the deceased and he informed them that

he had left his residence a short while ago. However, the said two boys had never been

identified nor the prosecution has made an attempt to identify the same in as much as if the

incident happened after the two boys had made enquiry about the deceased, perhaps they

could have given some lead to the actual perpetrators of the crime and if the appellant was

himself involved in the said crime, we wonder how and in what way he would send those two

boys to enquire about them after they left.

35. In view of the foregoing discussions it is held that the appellant was convicted Page No.# 25/29

squarely on the plank of the last seen theory. The circumstances allegedly appearing against

the appellant, taken cumulatively does not form a complete chain. The missing links snaps

the chain of circumstances described by the Trial Court. A time gap surfaces in the evidence

relating to the time when the appellant was last seen with the deceased vis-à-vis the time

when the lifeless body of the deceased was found near a railway track at the place of

occurrence. With regard to the last seen theory it has been observed by the Hon'ble Supreme

Court in Shailendra Rajdev Pasvan and Others v. State of Gujarat , reported in (2020)

14 SCC 750 wherein it has been held as hereunder:

"13. Thus, the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements:-

(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

14. This court in the case of Trimukh Maroti Kirkan v/s State of Maharashtra has enunciated the aforesaid principle as under:-

"12.....The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence".

15. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of Page No.# 26/29

any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir, Rambraksh v/s State of Chhattisgarh, Anjan Kumar Sharma v/s State of Assam following principle of law, in this regard, has been enunciated:-

"16.......The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".

36. In the case at hand, considering the time gap when the appellant was last seen

with the deceased qua the death of the deceased, it will be unsafe to hold the appellant liable

for the death of the deceased. It has already been held in the foregoing discussions that the

evidence of PW-4 depicts that after he met the deceased near the railway line, he went to

attend nature's call and then he returned home. After returning home he heard about the

incident after half an hour. It is apparent that after more than half an hour PW-4 learnt about

the death of the deceased. Thus it is held that the appellant cannot be hypothetically saddled

with the guilt of eliminating the deceased. The probability of someone else's culpability

cannot be ruled out.

37. It is pertinent to mention at this juncture that motive is an important factor to be

established in cases of circumstantial evidence. No instances of animosity between the

deceased and the appellant which may have led the appellant to do away with the deceased

could be affirmed by the prosecution. Rather the evidence reveals friendship between the

appellant and the deceased and the appellant used to visit the deceased frequently. With Page No.# 27/29

regard to "motive" it has been held by the Hon'ble Supreme Court in Shivaji Chintappa

Patil v. State of Maharashtra, reported in (2021) 5 SCC 626 that :-

"30. It will be relevant to refer to a recent judgment of this Court in the case of Anwar Ali and Another v. State of Himachal Pradesh:-

"24. Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in Babu [Babu v. State of Kerala, (2010) 9 SCC 189, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paras 25 and 26, it is observed and held as under: [Babu v. State of Kerala, (2010) 9 SCC 189], SCC pp. 200-01) '25. In State of U.P. v. Kishanpal, (2008) 16 SCC 73, this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, paras 38-39) '38. ... the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.

39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.'

26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. (Vide Pannayar v. State of T.N., (2009) 9 SCC 152."

The appellant Shivaji Chintappa Patil, who was convicted on the basis of

circumstantial evidence, was acquitted of all the charges.

38. As regards the applicability of Section 106 of the Indian Evidence Act, 1872 in such Page No.# 28/29

cases it is well settled that the standard of proof is the preponderance of probability and not

proof beyond reasonable doubt as in the case of prosecution to establish. In the present

case, in view of the evidence which have been brought on record by DW-1 through the

mouth of DW-1 and DW-2 that the probability that the appellant was not at the place of

occurrence at the time when the incident occurred cannot be also ruled out. In a case based

on circumstantial evidence, all the circumstances must be consistent pointing only towards

the guilt of the accused. But in the present case, it cannot be said that except for the last

seen, other circumstances which have been brought on record certainly points to the guilt of

the accused and it cannot be said that other circumstances points to the guilt of the accused.

As mentioned above, we also noted that the cause of death was because of the 8 injuries

received by the deceased which were all caused by sharp weapon, but no such sharp weapon

has been recovered from the place of occurrence or at the instance of the appellant also. In

our view, non-seizure of the weapon of crime in cases relating to circumstantial evidence

would be much vital so as to link the use of the said weapon with the appellant.

39. Thus, we find a number of gaps in the evidences so adduced by the prosecution

and it cannot be said that there is a clear link in the chain of circumstances which have been

brought on record by the prosecution. In absence of other cogent evidence on record, the

last seen theory cannot be the sole basis of the conviction of the appellant in the present

case. Accordingly, for the reasons discussed above, we are of the view that the conviction of

the appellant cannot be sustained in law and as such, the same is set aside. Consequently,

the impugned judgment is also set aside. The appellant would be set at liberty forthwith.

40. We have noted that while convicting the appellant, which we have set aside by this

order, the learned Trial Court did not pass any order for payment of compensation to the Page No.# 29/29

victim or his dependents as contemplated under Section 357A of the Cr.P.C. We have been

also informed that there is a scheme prepared by the State of Assam under sub-section 9 of

Clause 5 of the Assam Victim Compensation Scheme, 2012 as notified on 05.03.2016 and

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

had left any dependent and if so, let the compensation fixed by the State in terms of the

aforesaid notification dated 01.02.2019 be paid to the dependent(s) of the victim or next of

kin after making necessary verification. The aforesaid exercise will be carried out in

association with the Kamrup District Legal Services Authority at the earliest and preferably

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

this order be furnished to the Member Secretary, Assam State Legal Services Authority as well

as the Secretary, Kamrup District Legal Services Authority to assist the State authorities in this

regard.

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

42. Necessary remuneration be paid to Mr. J. Das, legal aid counsel for the appellant

appointed by the Court, as per rules.

                                   JUDGE                                     JUDGE


Comparing Assistant