Gauhati High Court
Crl.A./229/2018 on 3 May, 2024
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page 1 of 35
GAHC010143432018
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Criminal Appeal No.229/2018
1. Sri Punya Mazumdar,
S/o Babul Mazumdar,
Village- Uttar Puthimari,
P.S.-Boko, District -Kamrup,(Assam)
2. Sri Govinda Mandal,
S/o Biren Mandal,
Village-Kahibari,
P.S.-Boko, District-Kamrup, (Assam)
.....Appellants
-Versus-
1. The State of Assam,
Represented through the Public Prosecutor,
Assam
2. Hanu Mohan Sakharu,
S/o Late Jaru Sakharu, Village-Kahibari,
District -Kamrup, (Assam) 78112
.....Respondents
For Appellant(s) : Mr. A. Ahmed, Advocate
For Respondent(s) : Ms. B. Bhuyan, Additional Public Prosecutor,
Mr. J. Das, Advocate, (R-1)
Mr. M. Mahanta, Advocate, (R-2)
Date of Judgment : 03.05.2024
Criminal Appeal No. 229 of 2018 Page 1
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BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(Mridul Kumar Kalita, J)
1. Heard Mr. A. Ahmed, learned counsel for the appellants. Also
heard Ms. B. Bhuyan, learned Additional Public Prosecutor, for
the State of Assam and Mr. M. Mahanta, learned counsel for the
respondent No. 2.
2. This Appeal under Section 374(2) of the Code of Criminal
Procedure, 1973, has been filed by the appellants, namely,
Punya Mazumdar and Govinda Mandal, impugning the
judgment and order dated 08.05.2018, passed by the learned
Sessions Judge, Amingaon in Sessions Case No. 163/2014,
whereby the appellants were convicted under Section 302/34 of
the Indian Penal Code and were sentenced to undergo rigorous
imprisonment for life and to pay a fine of Rs. 2,000/- (Rupees
Two Thousand only) each and in default of payment of fine to
suffer rigorous imprisonment for 2(two) months each.
3. The facts relevant for consideration of the instant appeal, in
brief, are as follows:-
i. That on 01.03.2007, one Hanu Mohan Sakharu
lodged an FIR before the In-Charge of Chamaria
Criminal Appeal No. 229 of 2018 Page 2
Police Patrolling Post under Boko Police Station,
inter-alia, alleging that on the day prior to lodging
of the FIR, at about 8:00 PM, the accused persons,
namely, Punya Mazumdar and Govinda Mandal
(present appellants) called the nephew of the first
informant, namely, Sri Amrit Sakharu from his
house saying that they had some works and
thereafter, they killed him at Kahibari College Road
and threw his body into the nearby drain. It is also
alleged in the FIR that when some local people saw
it and made a hue and cry, many people assembled
at the place of occurrence and the accused persons
fled away from that place.
ii. On receipt of the said FIR, the In-Charge of
Chamaria Police Patrolling Post made a G.D. Entry
No. 3 dated 01.03.2007 and forwarded the said FIR
to the Officer-In-Charge of Boko Police Station for
registering a case. Accordingly, Boko P.S. Case No.
35/2007 was registered under Section 302 of the
Indian Penal Code and Shri N. Sharma, S.I. of Police
was entrusted to conduct the investigation.
iii. During the investigation, the Investigating Officer
visited the place of occurrence, examined the
witnesses and prepared a sketch-map of the place
Criminal Appeal No. 229 of 2018 Page 3
of occurrence. He also conducted an inquest over
the dead body. The Investigating Officer also seized
two bicycles and sent the dead body of the
deceased for post-mortem examination. The
Investigating Officer, Sadananda Sarma was
transferred during the course of the investigation
and thereafter, he handed over the case diary to
one Gauri Kanta Lahkar, who laid the charge-sheet
against both the appellants, under Section 302 of
the Indian Penal Code.
iv. The appellants faced the trial remaining on bail. On
11.08.2011, after hearing the learned counsel for
both sides as well as after considering the materials
available on records, the learned Sessions Judge,
Kamrup, Amingaon framed the charges under
Section 302/34 of the Indian Penal Code against
both the above-named appellants. When the said
charges were read over and explained to the
appellants, they pleaded not guilty to the said
charges and claimed to be tried.
v. On the basis of the charges framed against the
present appellants, the Trial Court framed the
following points for determination: -
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"Whether the accused persons, on 28.02.2027, at
about 8.00 PM, at Kahibari, within the jurisdiction of
Boko P. S., in furtherance of their common intention,
committed murder with an intention to cause the
death of Amrit Sakharu and thereby committed an
offence punishable under Section 302/34 of the Indian
Penal Code."
vi. During the course of the trial, the prosecution side
examined as many as 12 prosecution witnesses and
exhibited 10 documents, which were marked as
Exhibit-1 to Exhibit-10.
vii. Both the above named appellants were examined
under Section 313 of the Code of Criminal
Procedure, 1973, during which they denied the
truthfulness of the evidence of the prosecution
witnesses and pleaded their innocence. Both the
appellants declined to adduce any evidence in their
defence.
viii. However, by the judgment and order, which has
been impugned in this appeal both the appellants
were convicted and sentenced in the manner
already described in Paragraph No. 2 hereinbefore.
4. Before considering the submissions made by learned counsel
for both the sides, let us go through the evidence, which is
available on record.
Criminal Appeal No. 229 of 2018 Page 5
5. PW-1, Sri Nitai Mandal, has deposed that about four years ago,
the dead body of Amrit Sakharu was found in a pitch in Kahibari
village and at about 8:00 PM, he went to see the dead body.
Then police came and asked him as to whether he had seen
anybody with the deceased on that day and in reply he
informed the police that he saw both the accused persons along
with the deceased in the afternoon. He deposed that two
bicycles were found lying in the place of occurrence and police
seized the same. He exhibited the seizure list as Exhibit-1 and
his signature as Exhibit-1(1).
6. During cross examination, he has stated that he saw the
deceased along with the accused persons at about 4:00 PM. He
deposed that he did not know where they proceeded thereafter.
He has stated that he saw the seized bicycle on the road from
where police seized the same. He has also stated that he does
not know as to who had kept the bicycles there.
7. PW-2, Smt. Chinta Moni Mandal, has deposed that few years
ago, one day when she was sleeping in her house at night, she
heard some sound outside. She has deposed that when she
came out she saw a person was running through her courtyard
and she could identify the person as Govinda. She stated that
on the next day morning, she came to know that deceased
Amrit Sakharu was lying in a pitch. During cross examination,
Criminal Appeal No. 229 of 2018 Page 6
she has stated that she had not seen who ran away through
her courtyard.
8. PW-3, Sri Dipak Kalita, has deposed that Amrit Sakharu had
expired in the year 2007. He deposed that while he was coming
from broiler farm at about 8:30 PM, he saw two bicycles- one
lying on the road and the other lying in the field. He stated that
he called the people and then they saw some foot mark and
after going ahead they saw two persons fled away from the
pitch. He stated that they could not identify the two persons
and in the light of the torch they found the dead body of Amrit
Sakharu. He stated that they saw an injury on the penis of the
deceased and his neck was tied with belt. During cross
examination, he stated that he had not stated before the police
about the injury sustained by the deceased.
9. PW-4, Chakradhar Kalita, has deposed that the place of
occurrence is nearby Basti land. He has deposed that in the
year 2007, on one night, his son Manjit Kalita informed him
after returning home at about 8:00 PM, that he saw two
persons fleeing away from the pitch of their house and one
person was lying dead in the pitch. His cross examination was
declined by the defence side.
10. PW-5, Sri Nagen Karmakar, has deposed that about two years
ago, Amrit Sakharu had expired. He has deposed that his house
is situated at a distance of 1 km. He stated that after hearing
Criminal Appeal No. 229 of 2018 Page 7
hue and cry, he along with some villagers proceeded towards
the place from where sound was coming and they found one
dead body lying in a pitch. He exhibited the inquest report as
Exhibit-2 and his signatures thereon as Exhibit-2(1). He has
also deposed that the police seized two bicycles (old) from the
place of occurrence. He exhibited the seizure list as Exhibit-1
and his signature thereon as Exhibit-1 (1). He has deposed that
he had heard from the villagers that the deceased and the two
accused persons were proceeding on two bicycles on the day of
occurrence.
11. During cross examination, he has deposed that he was reported
by one Nitai Mandal about the fact that the accused persons
went with the deceased in two bicycles.
12. PW-6, Niranjan Das, a co-villager, has deposed that about five
to six years ago, one morning, he came to know that one
person was lying dead at Kahibari, near a college and he did
not know the deceased or how he had died. PW-6 was re-
examined by the prosecution side. During re-examination, he
has stated that he was present while police recorded the
statement of accused Punya Mazumdar in presence of
Executive Magistrate. He had exhibited the statement of the
accused Punya Mazumdar as Exhibit-3 and his signature
thereon as Exhibit-3(1).
Criminal Appeal No. 229 of 2018 Page 8
13. During cross examination, PW-6 has stated that he could not
remember as to who recorded the statement and whether it
was read over to him. He also could not clearly say as to
whether he was present at the time of recording of the
statement.
14. PW-7, Sri Jiten Mandal, has deposed that about four to five
years back, one day, he heard that Amrit Sakharu had been
killed and there was a hue and cry in their village. PW-7 was
declared hostile by the prosecution. During cross examination
by the prosecution side, PW-7 has answered in negative to a
suggestive question that he had stated before the police that
after coming out from his house, he saw Govinda and Punya @
Ranjit run through the cultivation with clay on their body and
pass through one road and after sometime he came to know
that the said two persons had killed Amrit Sakharu.
15. During cross examination by the defence side, PW-7 has
deposed that there was a huge gathering of people in the
village and it was about 8:30 to 9:00 PM when the incident took
place. He had also stated that he knew the village people who
gathered at the place of the incident at that time but he did not
see the accused persons at that time. He has also stated that
he does not know when the police came to the place of
occurrence. He deposed that he had no knowledge about the
Criminal Appeal No. 229 of 2018 Page 9
involvement of the accused persons with the occurrence and he
did not see them.
16. PW-8, Sri Jantu Biswas, another witness from the locality, has
deposed that about five years ago at about 7:00 PM, he was
watering his cultivation, then somebody made hue and cry
"thief, thief" and he saw one person running through his paddy
field. He thought that the person might be a thief and after
coming home, he came to know that one person had died on
the road, namely, Megha @ Amrit. He has also deposed that he
could not identify the person, who ran through the paddy field
and police did not record his statement. PW-8 was also
declared hostile by prosecution side. During cross examination
by the prosecution side, PW-8 had denied that he had stated
before police that two accused persons, namely, Govinda and
Punya came running with mud on the body and arrived in their
courtyard and as he asked them as to why they were running,
they replied that son of Samiran had tried to kill them. PW-8
had also deposed that later on, he came to know from people
that the accused persons had killed Amrit. He also denied that
he had given false evidence out of favour only to save local
boys.
17. During cross examination by defence side, PW-8 had stated
that the police did not take his statement. He also deposed that
at the time of hearing hue and cry, he was not at his home. He
Criminal Appeal No. 229 of 2018 Page 10
has deposed that he could not say from whom he had heard
that the accused persons had killed the deceased.
18. PW-9, Sri Dasarath Das, the Circle Officer, has deposed that on
03.03.2007, he was working as Circle Officer at Chamaria
Revenue Circle and on that day statement of Govinda Mandal,
son of Biren Mandal, was recorded by S.I. Sadananda Sarma at
Chamaria Police Outpost in his presence and he put his
signature on the statement recorded by S.I. Sadananda Sarma.
He exhibited the statement of Govinda Mandal as Exhibit-4 and
his signature thereon as Exhibit-4 (1). He has also deposed that
the statement of another accused Punya Mazumder was also
recorded in his presence. He exhibited the statement of Punya
Mazumder as Exhibit-3 and his signature thereon as Exhibit-3
(1).
19. During cross examination, PW-9 has deposed that Exhibit-3 and
Exhibit-4 were written by S.I. Sadananda Sarma in his office.
He has also deposed that he did not know how to record the
extra judicial confession and he signed on Exhibit-3 and Exhibit-
4 as witness. He has also deposed that there was no signature
of accused Govinda Mandal on Exhibit-4 and he did not
remember whether signature of the appellant was taken in his
presence or not. PW-9 has answered in negative to a
suggestion put by the defence counsel that Exhibit-3 and
Exhibit-4 were not legally admissible.
Criminal Appeal No. 229 of 2018 Page 11
20. PW-10, Hanu Mohan Sakharu, the informant of this case, has
deposed that the deceased was the son of his elder brother and
he died in the year 2007. He stated that at the time of
occurrence he was at his residence. He has deposed that at
about 4:00 PM, on the date of occurrence, both the accused
persons called out Amrit from his house and he was present in
the house at that time. He has also deposed that there is a
college situated away from his house and he heard hue and cry
near the college at about 7:00 PM, on the date of occurrence.
He has also deposed that after hearing hue and cry, he rushed
to the place where the hue and cry was coming, i.e., near the
college and there he heard that Amrit was murdered. He has
deposed that, on being asked by the people gathered there, he
told him that at about 4:00 PM the accused persons were with
the deceased. He has also deposed that the deceased was
found dead by the side of the village road at Kahibari. He has
also deposed that the dead body was in the drain by the side of
the road. He has also deposed that the college and the place
are adjacent. He has also deposed that the villagers searched
for both the accused persons, but could not find them. He has
also deposed that the FIR was lodged by him and the same was
written by one Niranjan Das as per his version and was also
read over to him after which he had put his signature. He has
exhibited the FIR as Exhibit-5, his signatures thereon as
Criminal Appeal No. 229 of 2018 Page 12
Exhibit-5 (1) and the signature of the scribe Niranjan Das as
Exhibit-5 (2) with which he is familiar. He also exhibited the
inquest report as Exhibit-2 and his signature thereon as Exhibit-
2 (2).
21. During cross examination, PW-10 has deposed that he has
studied up to class-VI and has mentioned in the FIR that the
accused persons had called out the deceased at about 8:00 PM
on the date of occurrence. He has also stated that the fact that
the accused persons called out the deceased at 4:00 PM is true.
He also deposed that he did not remember stating to the police
that at 8:00 PM on the date of occurrence, the deceased came
to his house and then he was called out by both the accused
persons. He has also stated that he did not state before police
that after hearing hue and cry, at 7:00 PM, he went to the
place of origin of the hue and cry and on being asked by people
gathered there, he told them that at about 4:00 PM, on that
day, the deceased was called out by the accused persons. He
has also deposed that he did not narrate this fact in the FIR. He
has also deposed that he has not the witnessed the murder of
the deceased. PW-10 has also deposed that his house and that
of the accused was intervened by distance of about 5 bighas of
land. He has also deposed that his wife also knew that the
accused persons had called out the deceased from his house,
however, he did not state this fact to the police. The defence
Criminal Appeal No. 229 of 2018 Page 13
put suggestion that the accused persons did not call out the
deceased from his house which was answered in negative by
PW-10. The defence side also put suggestion that the FIR was
lodged in this case against the accused persons only on
suspicion which was answered in negative by PW-10.
22. PW- 11, the Medical Officer, Dr. R. Chaliha, has deposed that
on 01.03.2007 the post-mortem examination was done over the
dead body of deceased, Amrit Sakharu and post-mortem was
done by Dr. Ditiman Nath, a Post Graduate Student on duty,
Department of Forensic Medicine, GMCH along with Dr. Pradip
Thakuria, Medical Officer on duty, Department of Forensic
Medicine, GMCH and he conquered with the opinion. According
to him, the following injuries were found over the dead body-
(i) A transverse continuous ligature mark present around
neck just below the thyroid cartilage 31 x 1.5 cm in size,
base dry and parchments. On dissection, underlying
tissues are pale and glistering. Surrounding tissue
contused. Thyroid bone fractured near right cornu. In the
thorax thoracic organs are congested and the abdomen
organs are healthy. Stomach is congested and empty. No
suspicious smell is detected. In cranium and spinal canal
membrane and brain are congested.
23. As per the opinion of the doctor, the death was due to asphyxia
resulting from ante-mortem ligature strangulation and homicidal
Criminal Appeal No. 229 of 2018 Page 14
in nature. PW-11 has exhibited the post-mortem examination
reports as Exhibit-6, signature of Dr. D. Nath as Exhibit- 6(1),
the signature of Dr. Pradip Thakuria as Exhibit-6(2) and his own
signature as Exhibit-6(3). During cross examination, he has
deposed that he was not present at the time of post-mortem
examination and he had only concurred on the records.
24. PW-12, Gouri Kanta Lahkar, who is the Investigating Officer,
has deposed that on 16.06.2007, he was posted at Chamaria
Outpost and he received the case diary on 16.06.2007 as
endorsed by Officer-In-Charge to complete the investigation.
He has stated that the predecessor Investigating Officer SI
Sadananda Sarma had already been expired. He has deposed
that as per the case diary Sadananda Sarma investigated the
case from the date of occurrence and the FIR was lodged by
one Hanu Mohan Sakharu. He has also deposed that
Sadananda Sarma visited the place of occurrence, examined
the witnesses and prepared a sketch map and did inquest over
the dead body. He has also deposed that during investigation,
accused Punya Mazumdar was produced by former
Investigating Officerbefore Executive Magistrate named
Dasarath Das of Chamaria Revenue Circle where the accused
made Extra Judicial Confessional statement. He has also
deposed that accused Punya Mazumdar signed on the said
confessional statement. He has also deposed that the former
Criminal Appeal No. 229 of 2018 Page 15
Investigating Officerduring investigation seized two numbers of
bicycle and during investigation the former Investigating Officer
sent the dead body for post-mortem examination. He has also
deposed that on transfer of the previous Investigating Officer,
he received the case diary and from the case diary he found
that during investigation the previous Investigating Officer
examined one witness, namely, Jantu Biswas and this witness
made a statement before the earlier Investigating Officerthat
two accused persons, Govinda and Punya came running with
mud on their body and arrived in their courtyard and as he
asked them as to why they were running, then they run though
they replied that some people were chasing them to kill them.
He has also deposed that witness Jantu Biswas has stated
before the earlier Investigating Officer that these two boys had
killed Amrit.
25. During cross examination, PW-12 has deposed that he had not
examined any witness nor he visited the place of occurrence.
He stated that two bicycles were seized by the previous
Investigating Officer, but ownership of the bicycles had not
been ascertained. He stated that apart from the bicycles, no
other articles were seized from the place of occurrence to
substantiate the fact that the accused persons were involved.
He stated that he did not know the distance of the place of
occurrence from the house of the accused persons. He stated
Criminal Appeal No. 229 of 2018 Page 16
that the incident took place on 28.02.2007 and the FIR was
lodged on 01.03.2007. He stated that before receiving the FIR
there was a preliminary enquiry as per MCD (Miscellaneous
case diary). He stated that the time of calling the deceased by
the accused has been recorded as 8:00 PM. He further stated
that the exact time of killing was not recorded in the FIR. He
stated that while PW-10 was examined by the previous
Investigating Officerand he made the same statement that the
deceased was called on by the accused at around 8:00 PM, and
thereafter, he was killed and laid down in a drain near the
college road. He has also deposed that that he did not know
the distance of the residence of PW-2, Cintamoni Mandal from
the place of occurrence and had also no idea about the distance
of residence of PW-4 from the place of occurrence. He admitted
that one person, namely, Niranjan Das was shown as a witness
in the extra judicial confessional statement made by the
accused, but there was no such note on the case diary and as
such he could not say wherefrom he was brought by the
Investigating Officerto put his signature on the statement made
by the accused. He has also deposed that he could not say at
what distance from the place of occurrence the house of PW-7
Jiten Mandal was situated and on the case diary she found no
such note to state that where from this witness was called by
the Investigating Officer to appear as a witness in the
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Confessional Statement. The defence side put suggestion that
the Investigating Officer had not examined PW-6, PW-7 and
PW-8 during the investigation under Section 161 of the Code of
Criminal Procedure, 1973, which is denied by PW-12. He stated
that the extra judicial confessional statement was recorded by
the previous Investigating Officer Sadananda Sarma in
presence of the Executive Magistrate. He admitted that in the
statement recorded on 03.03.2007 had no attesting witness,
buton the statement recorded on 10.03.2007 contains name of
witness Niranjan Das and Mohat Bayan. He has also deposed
that the witness shown on Exhibit-3, namely, Mohat Bayan was
not examined as a witness under Section 161 of the Code of
Criminal Procedure, 1973, as revealed from the case diary. He
has also deposed that no eye witness of the occurrence could
be found during the investigation.
26. As already stated herein above, the appellants, during their
examination under Section 313 of the Code of Criminal
Procedure, 1973, have pleaded their innocence and have
denied the truthfulness of the testimony of prosecution
witnesses. However, they did not adduce any evidence in their
defence.
27. Mr. A. Ahmed, learned counsel for the appellants has
submitted that in the instant case, there is no eyewitness to
support the prosecution's case and entire edifice of the
Criminal Appeal No. 229 of 2018 Page 18
prosecution case is built on circumstantial evidence. Learned
counsel for the appellants has submitted that when a case is
entirely based on circumstantial evidence, the circumstances
from which the conclusion of guilt is to be drawn should be fully
established. However, the prosecution side has failed to fully
establish the circumstances from which the conclusion of the
guilt of the present appellants has been drawn by the Trial
Court. To fortify his submission, learned counsel for the
appellants has cited a ruling of the Apex Court in the case of
"Sharad Birdhichand Sarda Vs. State of Maharashtra" reported in
(1984) 4 SCC 116.
28. Learned counsel for the appellants has also submitted that the
Trial Court has enumerated the circumstances, in Paragraph No.
41 of the impugned judgment, on the basis of which, it arrived
at the finding of guilt of the present appellants. However,
learned counsel for the appellants has submitted that the said
circumstances are not fully established and moreover, they are
not consistent only with the hypothesis of the guilt of the
present appellants.
29. Learned counsel for the appellants has also submitted that the
Trial Court has heavily relied on last seen theory to come to the
conclusion of guilt of the present appellants. He has submitted
that the evidence of PW-1 shows that the deceased was seen
along with the appellants at about 4.00 PM, whereas, in the FIR,
Criminal Appeal No. 229 of 2018 Page 19
which is exhibited as Exhibit-5, by the PW-10, it has been
mentioned that the deceased was called by the accused
persons at 8.00 PM only, hence, if the deceased was alive at
8.00 PM, and if he was in his residence at that time, the fact
that the appellants were seen with him at 4.00 PM is not of any
relevance. He has submitted that there is no evidence on
record to suggest that the appellants were seen with the
deceased at 8.00 PM. He has also submitted that though, PW-
10 has deposed before the Court that the fact that the
appellants called the deceased at 4.00 PM is true, however,
PW-12, who is the Investigating Officer has stated in his cross
examination that when PW-10 was examined by the previous
Investigating Officer, he made a statement that the deceased
was called by the appellants at around 8.00 PM. It is, therefore,
submitted by the learned counsel for the appellants that the
testimony of PW-10 being contradicted by his previous
statement given before the Investigating Officer is not reliable
and as from the FIR (Exhibit-5) as well as from the testimony of
PW-12, it appears that the deceased was alive when he was
called by the appellants in the evening, hence, the fact that the
appellants were seen with the deceased at 4.00 PM on that day,
lose its relevance.
30. Learned counsel for the appellant has also submitted that even
if it is assumed that the appellants were seen with the
Criminal Appeal No. 229 of 2018 Page 20
deceased at 4.00 PM, however, mere seeing the appellants with
the deceased is not sufficient to convict them for his murder
unless there is something more than that which unmistakably
points towards the guilt of the present appellants. Learned
counsel for the appellants has submitted that in the instant
case, the prosecution side has failed to establish any other fact,
which is consistent only with the hypothesis of the guilt of the
appellants. To fortify the submission, learned counsel for the
appellants has cited a ruling of the Apex Court in the case of
"Rambraksh Vs. State of Chhattisgarh", reported in (2016) 12
SCC 251. He has also cited the ruling of a Division Bench of this
Court in the case of "Jiarul Haque Vs. State of Assam and
Another", reported in 2020 (2) GLT 151.
31. Learned counsel for the appellants has also submitted that
though police has seized two bicycles from near the place
where the dead body was found, however, there is no evidence
to show that the seized bicycles belongs to any of the appellant.
He has also submitted that there is no admissible evidence on
record to the effect that the appellants were seen on bicycle.
Learned counsel for the appellants has also submitted that the
evidence of PW-5 to that effect that he had heard from villagers
that the deceased and the two appellants were proceeding on
that day on two bicycles is hearsay evidence only, which is not
admissible and which cannot be relied upon.
Criminal Appeal No. 229 of 2018 Page 21
32. Learned counsel for the appellants has also submitted that the
extra judicial confession of the appellants which has been
exhibited as Exhibit-3 and Exhibit-4 have rightly been discarded
by the Trial Court, as the same were recorded by the S.I. of
Police and thus, hit by Section 25 and Section 26 of the Indian
Evidence Act. Learned counsel for the appellants has also
submitted that in the instant case, the confessional statement
was recorded by police in presence of the Circle Officer-cum-
Executive Magistrate, however, the reference to the word
"Magistrate" in Section 26 of the Indian Evidence Act refers to a
Judicial Magistrate only and not an Executive Magistrate. To
fortify his submission learned counsel for the appellants has
cited a ruling of a full bench of this Court in the case of "Kartik
Chakraborty Vs. State of Assam" reported in 2017 (5) GLT 144.
33. Learned counsel for the appellants has also submitted that
there is also no evidence on record to show that the appellants
were seen at the place of occurrence or anywhere near that
place. He has submitted that though, the PW-2 had deposed,
during his examination-in-chief, that on hearing sound outside
his residence when he came out he found one person running
to his courtyard, who he identified as Govinda (Appellant No.2),
however, during his cross examination, he had stated that he
has not seen as to who ran away through his courtyard. He has
therefore, submitted that the testimony of PW-2 is not reliable.
Criminal Appeal No. 229 of 2018 Page 22
Learned counsel for the appellants has also submitted that
there is no other evidence on record to suggest that the
appellants were seen at the place of occurrence.
34. Learned counsel for the appellants has also submitted that in a
case based entirely on circumstantial evidence, motive has
important role to play and it is an important link in the chain of
the incriminating circumstances. It is submitted by the learned
counsel for the appellant that failure to prove motive would be
a missing link in the chain of circumstances, however, in the
instant case, the prosecution side has not alleged or prove any
motive for killing of the deceased by the appellants. To fortify
his submission, he has cited a ruling of the Apex Court in the
case of "Indrajit Das Vs. The State of Tripura", reported in 2023
Live Law (SC) 152.
35. Learned counsel for the appellants has also submitted that as
there is no eye witness to the commission of the crime in the
instant case, the circumstances by which the prosecution
intends to prove its case should be of definite tendency
unerringly pointing towards the guilt of the appellants. 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
appellants and that such circumstances should be incapable of
any explanation on any hypothesis other than the guilt of the
Criminal Appeal No. 229 of 2018 Page 23
appellants and inconsistent with their innocence. However, it is
submitted by learned counsel for the appellants that in the
instant case, the circumstances enumerated by the Trial Court
for arriving at the guilt of the appellants are not fully
established and they do not form a chain so complete which
only points towards guilt of the appellants. He has submitted
that the prosecution side has failed to prove the guilt of the
appellants beyond all reasonable doubt and they are thus,
entitled to get benefit of doubt and acquitted of charge under
Section 302/34 of the Indian Penal Code.
36. On the other hand, Ms. B. Bhuyan, has submitted that the Trial
Court has correctly arrived at the finding of guilt of the present
appellants on the basis of evidence available on record,
therefore, the impugned judgment is not liable to be interfered
with and this appeal may be dismissed.
37. Learned Additional Public Prosecutor has submitted that in the
instant case, though there is no eye witness to the commission
of the alleged offence, however, the testimony of PW-11 (Dr. R.
Chaliha) as well as from Exhibit-6, i.e., the post-mortem
examination report shows that the death of the deceased was
due to asphyxia resulting from ante mortem ligature
strangulation and is homicidal in nature. She submits that the
death of the deceased being homicidal in nature, and the
evidence on record shows that the appellants were last seen
Criminal Appeal No. 229 of 2018 Page 24
with the deceased when he was alive, the burden is cast on the
appellants to show as to where they were, after they were seen
with the deceased till the dead body of the deceased was
recovered. She has also submitted that the appellants have
confessed to their guilt before an Executive Magistrate and this
should also be treated as an incriminating circumstance against
them for arriving at the finding of the guilt. She has also
submitted that the appellants were seen riding two bicycles
which were recovered of the place of occurrence. She has also
submitted that PW-2 has seen the appellant No. 1 running
through their courtyard, when he came out of his house on
hearing hue and cry. She has also submitted that PW-3 also
saw two persons fleeing away from the place where the dead
body was found. Learned Additional Public Prosecutor has
submitted that the aforesaid circumstances only indicate
towards the guilt of the present appellants and hence, the
impugned judgment should not be interfered with.
38. Mr. M. Mahanta, learned counsel for the respondent no. 2 made
submissions on similar lines to that of learned Additional Public
Prosecutor. He has submitted that the circumstantial evidence
against the present appellants, on record, forms a complete
chain of evidence which unerringly points only towards the guilt
of the present appellants and therefore, the impugned
Criminal Appeal No. 229 of 2018 Page 25
judgment should not be interfered with and the conviction and
sentence imposed on the appellants should be upheld.
39. We have considered the rival submissions made by the learned
counsel for both the sides. We have also gone through the
materials available on record meticulously, as well as the rulings
cited by the learned counsel for both the sides.
40. For arriving at a finding of guilt of the present appellants under
Section 302/34 of the Indian Penal Code, there has to be
admissible as well as reliable evidence on record to arrive at
such a finding.
41. As there is no eye witness to the incident of killing of deceased
Amrit Sakharu and as the prosecution case is entirely based on
circumstantial evidence, following observation made by the
Supreme Court of India in the case of "Sharad Birdhichand
Sarda Vs. State of Maharashtra" (supra) becomes very relevant
in the instant case:-
"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
Criminal Appeal No. 229 of 2018 Page 26
distinction between "may be proved" and "must be or
should be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC
793 : 1973 SCC(Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807: SCC (Cri) p.
1047] "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".
42. Thus, it may be seen that the Apex Court has held that the
circumstances from which the conclusion of guilt is to be drawn
should be fully established. It is also held that the said
circumstances "must or should" and not "may be" established.
Criminal Appeal No. 229 of 2018 Page 27
It is also a settled principle of law that however, strong a
suspicion may be, it cannot take place of proof beyond
reasonable doubt in a criminal trial. In light of said principle, let
us examine as to whether the circumstances enumerated by
the learned Trial Court in Paragraph No. 41 of the impugned
judgment are fully established and are of conclusive nature and
tendency and exclude every possible hypothesis except the guilt
of the present appellants.
43. For the sake of convenience, the circumstances enumerated in
Paragraph No. 41 of the impugned judgment are quoted herein
below:
(i) It was around 4 P.M. in the evening, both the
accused came to the house of Sunu Mohan Shakaru,
the uncle of the deceased and called out the
deceased with them. On that day a co-villager saw
both the accused along with the deceased in the
afternoon of the date when the dead body of Amrit
Shakaru was found in a pitch at Kahibari village at
around 8 P.M.
(ii) One of the co-villagers, a woman of the
neighbouring area (P.W. 2) heard noise outside and
saw a person running through her courtyard at the
time of incident and initially claimed that he was
accused Govinda.
(iii) Some of the villagers saw two bi-cycles on that
fateful evening lying on the road and in the field
Criminal Appeal No. 229 of 2018 Page 28
which were seized by police. The villagers detected
the dead body of Amrit Shakaru near the college
from a pitch.
(iv) One of the co-villagers heard from the villagers that
deceased and two accused persons were seen
proceeding on two bicycles on the date of
occurrence which infers that no bicycle was there
with the deceased and he was carrying by the
accused in their bicycle.
(v) The accused persons were produced at the police
station and their statements were recorded by
police in presence of Executive Magistrate and also
in presence of prosecution witness (P.W.6). The
accused persons were arrested.
(vi) The P.M. report of the deceased was collected and
on completion of investigation police submitted
charge sheet against the accused u/s 302/34 IPC.
44. As regards the circumstance enumerated at sub-para (i) of
Paragraph No. 41 of the impugned judgment is concerned, it
appears that PW-10, who is the first informant of the case, has
stated in the FIR which has been exhibited as Exhibit-5 that the
appellants called the deceased at about 8.00 PM on the date of
occurrence of the alleged offence. It also appears that though,
he has stated before the Court while deposing as prosecution
witness, that the appellant called the deceased at 4.00 PM,
however, from the testimony of PW-12, it appears that the PW-
Criminal Appeal No. 229 of 2018 Page 29
10 had stated before the Investigating Officer, during
investigation, that the appellants had called the deceased at
8.00 PM. Thus, it appears that it was for the first time, while
deposing before the Trial Court, the PW-10 mentioned the time,
when the appellants called the deceased, as 4.00 PM, instead of
8.00 PM. It is also pertinent to note that PW-10, in his evidence,
has also deposed that the FIR was written as per his version
and same was read over to him after which he had put his
signature thereon. PW-10 has given no clarification regarding
the discrepancy with regard to the time when the appellants
have called the deceased. It would therefore, not be safe to
rely on that portion of the testimony of PW-10 where he
mentions that the appellants had called the deceased at 4.00
PM on the date of the incident. The assertion of PW-10 to the
effect that the appellants called the deceased at 4.00 PM on the
date of the incident is not established. Only the second part of
the circumstance enumerated at sub-para (i) of Paragraph No.
41 of the impugned judgment is established as PW-1 has
deposed that he had seen the appellants along with the
deceased at 4.00 PM on the date of the incident.
45. As regards the circumstance enumerated at sub-para (ii) of
Paragraph No. 41 of the impugned judgmentis concerned,
though, PW-2 has deposed that he could identify the person
running through his courtyard as Govinda (Appellant No. 2),
Criminal Appeal No. 229 of 2018 Page 30
however, during cross examination, he has deposed that he
had not seen who ran through his courtyard. In view of
demolition of the testimony of PW-2, to the effect that he saw
Govinda running through his courtyard, during his cross
examination, the said circumstance cannot be regarded as fully
established.
46. As regards circumstance enumerated at sub-para (iii) of
Paragraph No. 41 of the impugned judgmentis concerned, the
seizure of two bicycles from near the place of occurrence of
offence, in itself cannot be regarded as an incriminating
circumstance against the appellants, as no material was
produced before the Trial Court to show that the appellants are
the owner of the said bicycles or that the same were used by
the appellants on the date of alleged incident.
47. As regards circumstance enumerated at sub-para (iv) of
Paragraph No. 41 of the impugned judgmentis concerned, no
prosecution witness has deposed of having seeing the
appellants proceeding on bicycles. Only PW-5 has deposed that
he had heard from villagers that the deceased and the
appellants were proceeding on two bicycles. During cross
examination, PW-5 had stated that he was reported by Nitai
Mondal about the fact that the deceased went along with the
appellants in two bicycles, however, the said Nitai Mondal who
was examined as PW-1 has not deposed that he had seen the
Criminal Appeal No. 229 of 2018 Page 31
appellants and the deceased on two bicycles, therefore, the
testimony of PW-5 is only hearsay evidence, which is not
admissible. The circumstance of the deceased being carried by
the appellants in two bicycles cannot be regarded as fully
established, due to lack of evidence.
48. As regards circumstance enumerated at sub-para (v) of
Paragraph No. 41 of the impugned judgmentis concerned, the
confessional statements of the appellants have been recorded
by the Sub-Inspector of Police, though, in presence of
Executive Magistrate. In the case of "Kartik Chakraborty Vs.
State of Assam" (supra), a Full Bench of this Court while
answering a reference made to it, i.e., "whether the expression
Magistrate appearing in Section 26 of the Evidence Act would
mean a Judicial Magistrate or an Executive Magistrate" has held
that the expression "Magistrate" appearing in Section 26 of the
Evidence Act, would mean only a Judicial Magistrate and not an
Executive Magistrate. As in the instant case, the confessional
statements of the appellants which are exhibited as Exhibit-3
and Exhibit-4 were recorded by the police, while the appellants
were in the custody of police, in presence of an Executive
Magistrate and not a Judicial Magistrate, hence, the said
confessional statements are hit by Section 25 and Section 26 of
the Indian Evidence Act. For the said reasons, the circumstance
enumerated at sub-para (v) of Paragraph No. 41 of the
Criminal Appeal No. 229 of 2018 Page 32
impugned judgmentcannot be regarded as incriminating
circumstance against the present appellants.
49. In the instant case, though, the deceased was killed by
strangulation and though, from the confessional statement
recorded by the Investigating Officer (which is inadmissible in
evidence) it appears that belt of appellant No. 1 which was
stated to have been used for the purpose of strangulating the
deceased, or any other object which was used for strangulating
the deceased was not seized during investigation. Only the
seizure of two bicycles was made, during investigation,
however, the ownership of the same could not be ascertained.
The prosecution side also failed to adduce evidence of any
witness who had seen the appellants using the said bicycles on
the date of incident. None of the prosecution witnesses has
seen the appellants and the deceased going on bicycles. The
only evidence available, in this regard, is the hearsay evidence
of the PW-5 which has already been discussed and discarded in
the foregoing paragraphs. The testimonies of two numbers of
the prosecution witnesses, namely, PW-7 and PW-8 who turned
hostile are of no use as they reveal nothing in favour of
prosecution side even after cross examination by prosecution
side. None of the witnesses or appellants was examined under
Section 164 of the Code of Criminal Procedure, 1973 during the
Criminal Appeal No. 229 of 2018 Page 33
course of investigation, which could have helped the
prosecution side during trial.
50. Moreover, prosecution side has also failed to impute any motive
on the appellants for committing the crime of killing of Amrit
Sakharu. In the case of "Indrajit Das Vs. The State of Tripura"
(supra), the Apex Court has observed as follows:
"In a case of circumstantial evidence, motive has
an important role to play. Motive may also have a
role to play even in a case of direct evidence but it
carries much greater importance in a case of
circumstantial evidence than a case of direct
evidence. It is an important link in the chain of
circumstances."
The failure of the prosecution side to show any motive on
the part of the appellants for committing the alleged offence
which could have been very important link in the chain of
circumstances in the instant case, has certainly weaken the
prosecution's case.
51. Thus, we have seen the circumstances which were enumerated
in Paragraph No. 41 of the impugned judgment and relied upon
by the Trial Court for arriving at the finding of guilt of the
present appellants were not fully established. It also appears
that the circumstances which were established in this case do
not form a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the
innocence of the appellants. The evidence available on record
Criminal Appeal No. 229 of 2018 Page 34
falls miserably short of what is required to conclusively arrive at
the finding of the guilt of the appellants. We are, therefore, of
the considered opinion that the prosecution side has miserably
failed to prove the guilt of the appellants of this case beyond all
reasonable doubt. The appellants are, therefore, entitled to get
benefit of doubt which, under the facts and circumstances of
this case, we hereby give to them. The appellants are
accordingly, acquitted of charge under Section 302/34 of the
Indian Penal Code on getting benefit of doubt.
52. In view of the above discussions and reasons, this appeal is
hereby allowed. The impugned judgment and order dated
08.05.2018, passed by the learned Sessions Judge, Amingaon
in Sessions Case No. 163/2014, is hereby set aside.
53. Let, the appellants be set at liberty forthwith if they are not
required to be detained in connection with any other case.
54. Return back the Trial Court Record.
JUDGE JUDGE
Comparing Assistant
Criminal Appeal No. 229 of 2018 Page 35
