Bimal Krishna Nath vs State Of Assam And Anr
2023 Latest Caselaw 4073 Gua

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GAHC010009012013




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

                                Case No. : Crl.A./200/2013

           BIMAL KRISHNA NATH
           S/O LATE PRITHU RAM NATH, R/O HOUSE NO. 4 BYE LANE NO. 3A,
           GANDHIBASTI, P.O. SILPUKHURI, P.S. CHANDMARI, GUWAHATI 781003,
           DIST. KAMRUP, ASSAM.

           VERSUS

           STATE OF ASSAM and ANR.
           ASSAM

           2:MD.NURUL ISLAM

             S/O MD. SAMSUL HOQUE
             R/O RUPAKUCHI
             P.S. BARPETA
             DIST. BARPETA
            ASSAM
             PIN
Advocate for the Petitioner : MR. N BARMAN

Advocate for the Respondent : MR. P SHARMAH(R-2)

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI

JUDGEMENT AND ORDER (CAV) Date : 03-10-2023 (Malsari Nandi, J)

Heard Mr. A. Bhattacharya, learned counsel for the accused-appellant. Also heard Mrs. B. Bhuyan, learned Additional Public Prosecutor for the State/respondent No. 1 and Mr. J.

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Das, learned counsel for the respondent No. 2.

2. This appeal has been preferred by the appellant Sri Bimal Krishna Nath who is the elder brother of the deceased against the judgment and order dated 28.06.2013 passed by the learned Additional Sessions Judge No.2, Kamrup(M), Guwahati in Sessions Case No. 300(K- G)/2010, whereby the respondent No. 2 Nurul Islam has been acquitted by the trial court.

3. The brief facts of the case is that on 20.04.2010, S.I. of Police Karuna Bora of Latashil P.S. lodged an FIR before the officer in charge of Latashil P.S. stating interlia that on 18.04.2010, the informant Dr. Arun Kumar Bora, professor of Geology, Cotton College, Guwahati lodged an FIR to the effect that his sister-in-law, Dr. Bivadevi, lecturer of the Geology Department, Cotton College, Guwahati, was found dead in her residence at Professor Colony, Flat Number D-3(Cotton College) which appeared as unnatural death. Accordingly, a case was registered vide Latashil P.S. UD Case No. 03/2010 dated 18.04.2010.

4. During investigation, the investigating officer visited the place of occurrence, examined available witnesses and it was found that the accused, namely Raju Ali @ Julhaz Ali, S/o Nurul Islam of Jania Bajar Barpeta and Md. Nurul Islam, S/o Samsul Haque of Rupakuchi of Barpeta Police Station had committed robbery and murder conjointly to the victim/woman on 17/04/2010 at about 5:30 to 06:00 p.m. while deceased Biva Devi was alone in her quarter.

5. In the course of investigation of aforesaid UD case which is a counterpart of murder, it appears that the aforesaid persons committed the robbery and murder. In the course of investigation, the mobile phone of victim bearing IMEI number 35968100024823/100 had been recovered from the possession of the involved accused Raju Ali @ Julhas which was seized accordingly. It is also alleged in the FIR that the apprehended persons also confessed their guilt and led in the process of investigation.

6. On the basis of the complaint, a case was registered vide Latashil P.S. Case No. 73/2010 under Section 394/302 IPC and further investigation was initiated. It also appears that Page No.# 3/14

immediately after the incident, a GD entry was recorded and the inquest was conducted on the dead body of the diseased and subsequently the dead body was forwarded for post- mortem examination. After completion of investigation, charge-sheet was submitted against the accused Raju Ali @ Julhas and Nurul Islam i.e. present respondent No.2 under Section 394/302/34 IPC. As the offence under section 302 IPC is exclusively triable by the court of Sessions, the case was committed accordingly.

7. During trial, prosecution examined 26 witnesses and marked 17 exhibits. On the other hand, the defence did not choose to adduce any evidence in support of his case. It is pertinent to say here that prior to committal of the case, a petition was filed before the learned Magistrate that the accused Raju Ali @ Julhas was minor at the relevant time of incident. In support of the fact, a school certificate was submitted before the learned Magistrate. Accordingly, an inquiry was made. After examining probable witnesses and the documents, the learned Magistrate held that Raju Ali @ Julhas Ali was juvenile on the date of occurrence. Accordingly, it was directed to produce Raju Ali @ Julhas Ali before the Juvenile Justice Board, Kamrup. Hence, the respondent No. 2 only faced the trial before the Sessions Court. Accordingly, charge was framed under section 394/302/34 IPC against the respondent No.2 which was read over and explained to him which he pleaded not guilty and claimed to be tried.

8. After completion of trial, the statement of the respondent No. 2 was recorded under Section 313 Cr.P.C. wherein he denied the allegations of any involvement of committing murder of the deceased. In a statement under Section 313 Cr.P.C., the respondent No. 2 stated that Raju was his co-villager so he knew him. On that day, Raju Ali called him over phone. Later, Raju Ali came with police and police arrested him. He knew nothing about the incident. He is a rickshaw puller. He is not a carpenter.

9. After hearing argument advanced by learned counsel for the parties, the learned trial court did not find any such convincing materials to prove that the respondent No. 2 was involved in the killing of the deceased. As per judgment of learned trial court, not a single Page No.# 4/14

witness had ever indicated any such circumstances that may be used to bring home the charge in question against the respondent No.2. It is also specifically mentioned that the respondent No.2 was facing trial only because there was alleged confession before the police which cannot be used in trial against the accused as barred by Section 25 of the Evidence Act. It is also mentioned by learned trial court that there was another aspect against the respondent No.2 was that he had been named by the co-accused which is not sustainable as per section 30 of the Evidence Act.

10. The learned trial court also pointed out that though the curtain as well as other materials were seized but the same had not been sent for serological test and the investigating officer also did not take any initiative to take the fingerprints on the curtain which was used for gagging the mouth of the deceased. Moreover, the investigating officer has also failed to examine the vital witness in the case i.e. the service provider. As the learned trial court did not find any clinching, trustworthy and reliable evidence against the respondent No. 2, he was acquitted accordingly. It is also noted in the judgment that the circumstantial evidence which surfaced from the evidence on record did not form a complete chain leading to irresistible conclusion pointing to the guilt of the accused person.

11. Before we embark on testimony and judgment of the trial court, the contours of interfering in criminal appeals where accused has been held to be not guilty would be required to be discussed. The principles which would govern, regulate the hearing on an appeal by the court against an order of acquittal passed by the trial court have been very succinctly explained by the Apex Court in catena of decisions. In the case of Tota Singh and Anr. Vs. State of Punjab reported in (1987) 2 SCC 529, the Hon'ble Apex Court has observed as under-

"... The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion Page No.# 5/14

recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is therefore liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."

12. In the case of Chandrappa and Ors. Vs. State of Karnataka , reported in 2007 v. (4) SCC 415, the Apex court has observed as under-

"From the above decisions, in our considered view, the following general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal emerged.

(1)An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2)The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3)Various expressions such as 'substantial and compelling reasons' 'good and sufficient grounds' varies from circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive power of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4)An Appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favor of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every Page No.# 6/14

person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirm and strengthened by the trial court.

(5)If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

13. In the case of Sidharth Vasisht @ Mannu Sharma vs. State(NCT of Delhi) reported in 2010 v.6 SCC 1, the Hon'ble Apex Court observed as under-

"The appellate court has all the necessary powers to re-evaluate the evidence led in before the trial court as well as the conclusions reached. It has a duty to specify the compelling and substantial reasons in case it reverses the order of acquittal passed by the trial court. In the case in hand the High Court by adhering all the ingredients and by giving a cogent and adequate reasons reversed the order of acquittal......."

14. In the case of Babu vs. State of Kerala reported in 2010, v.(9) SCC 189, the Hon'ble Apex Court observed as under-

"This court, time and again, has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside the judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with the judgment of acquittal the appellate court has to consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law."

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15. The Hon'ble Apex Court recently in Jayaswami vs. State of Karnataka reported in 2018 v.(7) SCC 219 has laid down the principles for laying down the powers of appellate court in re-appreciating the evidence in a case where the state has preferred an appeal against acquittal, which reads as follows-

"It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the trial court's acquittal, if the Appellate Court does not find substantial and compelling reasons for doing so. If the trial court's conclusion with regard to the facts is palpably wrong; if the trial court's decision was based on erroneous view of law; if the trial court's judgment is likely to result in great miscarriage of justice; if the entire approach of the trial court in dealing with the evidence was patently illegal; if the trial court judgment was manifestly unjust and unreasonable and if the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in order of acquittal. However, if the view taken by the trial court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in absence of the aforesaid factors."

16. Thus the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment and order is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

17. By applying the aforesaid principles and the evidence on record, in the case at hand, we Page No.# 8/14

are of the considered view that having regard to the material contradiction which we have noticed in the evidence of the witnesses and also as referred to in the trial court judgment, it can be said that acquittal is a possible view. By applying the ratio as laid down by the Hon'ble Supreme Court in the judgments which is stated above, even assuming another view is possible, the same is no ground to interfere with the judgment of acquittal and to convict the respondent No.2 for the offence as alleged. Admittedly, in the instant case, there is no eyewitness to the incident. The other witnesses examined by the prosecution came to the spot after the incident.

18. P.W.1 is the informant who is the brother-in-law of the deceased. According to him, she was unmarried and residing alone in the official quarter at Professor Colony. She died on 17.04.2010 at her residence. One Dr. Ramen Kalita informed him over phone on that day at about 08:30 p.m. that the deceased was lying in unconscious position in her residence. He immediately rushed to the place of occurrence and found that the deceased was lying on the floor and her mouth was gagged with curtain. He noticed injury on the backside of her head. This witness also stated that no valuable article has been stolen from the place of occurrence. According to him, one carpenter was working in the house of the deceased at the relevant time.

19. P.W.3 stated that she came to know that Police recovered the mobile phone of the deceased from Raju Ali and Nazrul Islam. She knew that one carpenter was working in the house of the deceased on previous days for making bookshelf and they were working and they came on that night for taking payment of their dues. When she refused to give mobile, they killed her.

20. P.W.4, P.W.5 & P.W.6 are the adjacent neighbour of the deceased. At the relevant time, they were residing at Cotton College Professor Colony. According to them, on the next day morning, they noticed through the gap of the curtain that the deceased was lying on the floor in the second room. Then they called 108 ambulance and informed police. According to P.W.6, he heard that previous day at evening, two boys came to her residence for making Page No.# 9/14

almirah.

21. The learned counsel for the appellant has submitted that P.W.6 has specifically stated that he personally knew about the fact that two persons came to the house of the deceased on previous night of the incident. The learned counsel also pointed out that P.W.7 stated that her deceased aunt told his uncle that some carpenter came to the residence of the deceased to take measurement of her bookshelf. On 17.04.2010, her mother called her aunt from Tawang at 5:00 P.M. and her aunt told that carpenter was coming to her home for measurement. Police seized the mobile cover.

22. P.W.9 is the sister of the deceased. She deposed in her evidence that on 18.04.2010, while she was returning from Tawang towards Guwahati, she received a phone call from one Anjan Sharma regarding death of her sister. On 17.04.2010 at about 05:00 p.m., she talked with the deceased and she told her that one Raju Ali with one helper was coming to her residence for taking measurement of making almirah. On 19.04.2010, while they reached in their parental residence at Gandhibasti, she saw the dead body of the deceased. She noticed some injuries on her body.

23. The learned counsel for the appellant further argued that the judgment and order passed by the learned Additional Sessions Judge, No.2, Kamrup is against the evidence on record and provision of law. The learned Additional Sessions Judge, No. 2 has not appreciated and accepted the medical evidence which is corroborated by the version of the witnesses examined by the trial court. The learned Additional Sessions Judge No. 2 has also not appreciated the evidence of the investigating officer in its true and correct perspective. It is further submitted that learned Additional Sessions Judge, No. 2 has committed a grave error in not believing the deposition of the witnesses examined by the prosecution. It is further contended that the learned Additional Sessions Judge, No. 2 has erred in acquitting the respondent No. 2 from the charges level against him. It is further argued that the prosecution has proved that the respondent No. 2 has committed the offence under section 302/394 IPC.

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24. It is also submitted that the learned Additional Sessions Judge, No. 2 has acquitted the respondent No.2 merely on some minor contradictions and omissions in the evidence of the witnesses. It is also pointed out that learned Additional Sessions Judge, No. 2 has erred in not believing the evidence of the investigating officer who have no reason to implicate the respondent No.2 falsely in the case.

25. According to learned counsel for the appellant, though the prosecution witnesses have supported the case of the prosecution, either directly or indirectly but the learned Additional Sessions Judge, No. 2 has not believed their evidence and acquitted the respondent No.2 erroneously. Learned counsel has prayed to allow the appeal by convicting the respondent No. 2 in accordance with law.

26. In support of his submissions, the learned counsel for the appellant has placed reliance on the following case laws-

(i) (2001) v. 6 SCC 205 (Gade Lakshmi Mangraju @ Ramesh vs. State of Andhra Pradesh.)

(ii) (2001) v. 10 SCC 340 (Limbaji & Ors. vs. State of Maharashtra.)

(iii) (2019) v. 18 SCC 161 (Samsul Haque vs. The State of Assam.)

27. The learned counsel for the respondent No. 2, on the other hand, has submitted that there is hardly any substance in the submission of the learned counsel for the appellant. There is no evidence on record connecting the respondent No. 2 with the commission of the offense. There are material contradictions and omissions in the evidence of the prosecution witnesses. Apart from that, nothing was recovered from the possession of the respondent No.

2. The only allegation against the respondent No.2 is that on the date of incident, the accused Raju Ali has made a phone call to him. The trial court has rightly appreciated the evidence on record and held that the prosecution has failed to prove the case against the respondent No. 2 beyond reasonable doubt and acquitted him accordingly. The learned counsel has prayed to dismiss the appeal.

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28. We have already discussed some judgments of Hon'ble Supreme Court giving guidelines to proceed with an appeal against an acquittal. The entire case of the prosecution rests on circumstantial evidence. The present case does not fall within the parameters of eye witness account as there is no witness who had seen the commission of the crime by the respondent No.2. As a matter of fact, the deceased was residing in an official quater alone. The allegation so pointed out clearly shows that on the day of the incident, two unknown persons approached the residential quarter of the deceased as one of the witness P.W.15 has stated that she had seen one person coming out from the house of the deceased. According to P.W.9, who is the sister of the deceased deposed in her evidence that prior to the date of incident, she talked with the deceased over phone and she stated that the deceased engaged two persons in her house for making an almiarh. But it is interesting to note that no Test Identification Parade(TIP) was held during the course of investigation. The investigating officer did not take any initiative to identify the two alleged unknown persons who approached the residential quarter of the deceased on the date of incident with the help of TIP. Ultimately, P.W.3 had seen the person coming out from the residential quarter of the deceased but was not identified. Admittedly, the alleged mobile phone of the deceased has been recovered from the possession of the accused Raju Ali but not from the possession of the respondent No. 2. As per statement of accused Raju Ali, the respondent No. 2 was arrested during investigation and accordingly charge-sheet was laid. The learned trial court has meticulously analysed the evidence of the witnesses recorded by the trial court and the other materials pertaining to the alleged offence.

29. Here in this case, it is undisputed that a lady of 48 years working as professor of Zoology Department at Cotton College was found dead in her official residential quarter. The doctor who performed the post-mortem examination of the deceased stated in the evidence that all the contents of the postmodern report which shows that the deceased sustained multiple injuries on her person vide Ext. 6. But regarding cause of death as the viscera was sent for chemical examination as such, the cause of death was kept pending till the receipt of the report of chemical analysis of viscera but the chemical analysis report was not exhibited before the trial court. As the cause of death could not be ascertained in the case as per Page No.# 12/14

evidence of the medical officer but apparently, the evidence of the witnesses and the injuries found on the dead body of the deceased stated to be unnatural and homicidal in nature. Apparently, it could be said that the deceased died of homicidal death.

30. The other witnesses examined by the prosecution are reported witnesses who came to the spot after the incident and found the deceased lying on the floor of her official quarter. The informant who also came to the spot subsequently and lodged an FIR wherein he did not mention the name of any suspected person to be involved in the case. As such, the evidence of the first informant or the witnesses examined do not throw any light upon the act of the respondent No. 2 in this case. The learned trial court has rightly appreciated the fact that the investigating officer though collected some CDR report but not exhibited/proved before the trial court by adducing any evidence.

31. Considering the entire evidence on record oral as well as documentary, this Court is of the opinion that the prosecution has failed to prove the case against the respondent No.2 by leading cogent and convincing evidence. The judgment delivered by the learned Additional Sessions Judge, No. 2 is sound on the aspect of law and facts. The evidence brought on record by the prosecution before the trial court has been rightly appreciated by the trial court. No apparent error on the face of the record is found from the judgment. The judgment does not suffer any material defects or cannot be said to be contrary to the evidence recorded.

32. It may be noted that as per the settled legal position, when two views are possible, the judgment and order of acquittal passed by the trial court should not be interfered with by the appellate court unless for the special reasons. A beneficial reference of the decision of the Hon'ble Supreme Court in the case of State of Rajasthan vs. Ram Niwas reported in (2010) v. 15 SCC 463 be made in this regard. In the said case, it has been observed as under-

"This Court has held in Kalyan v. State of U.P., (2001) 9 SCC 632 :

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"8. The settled position of law on the powers to be exercised by the High Court in an appeal against an order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is passed, it is equally well settled that the presumption of innocence of the accused persons, as envisaged under the criminal jurisprudence prevalent in our country is further reinforced by his acquittal by the trial court. Normally the views of the trial court, as to the credibility of the witnesses, must be given proper weight and consideration because the trial court is supposed to have watched the demeanour and conduct of the witness and is in a better position to appreciate their testimony. The High Court should be slow in disturbing a finding of fact arrived at by the trial court. In Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808, this Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted........."

33. The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that, it is not possible to record a finding of his guilt was stressed by the Hon'ble Apex Court in the case of Shivaji Sahebrao, reported in 1973 v. (2) SCC 793, as is clear from the following observations:

"Certainly it is a primary principle that the accused must be and not merely, may be guilty before a court, can be convicted and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations.

The High Court while dealing with the appeals against the order of acquittal must keep in mind the following propositions laid down by this Court, namely, (i) the slowness of the appellate court to disturb a finding of fact; (ii) the non-interference with the order of acquittal where it is indeed only a case of taking a view different from the one taken by the High Court."

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34. Considering the aforesaid facts and circumstances of the case and law laid down by the Hon'ble Supreme Court while considering the scope of appeal under Section 378 Cr.P.C., no case is made out to interfere with the impugned judgment and order of acquittal.

35. Moreover, this Court finds that the chain to link the accused while commissioning the crime itself is missing and the evidence so sought to be pressed into service, which includes testimony of the prosecution witness, itself is weak. This Court further finds inability to take a different view from the view so taken by learned trial court as obviously while deciding the present case, which originates in a shape of an appeal from the order of acquittal cannot be stretched too far so as to even take a view once the view taken by the learned trial court is plausible. Nonetheless, presumption of double innocence is already available with the accused and in view of law laid down by Hon'ble Apex Court as referred to above, this Court is not in a position to interfere with the findings so recorded by the learned trial court while acquitting the accused person.

36. In view of the above, present criminal appeal deserves to be dismissed and is accordingly dismissed. The judgment and order passed by the learned Additional Sessions Judge No. 2, Kamrup(M) in Sessions Case No. 300(K-G )/2010 dated 28.06.2013 acquitting the respondent No. 2 from the offence punishable under section 302/394 IPC is hereby affirmed.

37. Send back the LCR.

                                                       JUDGE                       JUDGE




Comparing Assistant