Gauhati High Court
Sri Dipak Gogoi vs The State Of Assam And Anr on 9 May, 2024
Author: K.R.Surana
Bench: Kalyan Rai Surana
Page No.# 1/20
GAHC010143382018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./252/2018
SRI DIPAK GOGOI
S/O RUDRESWAR GOGOI, VILL.KACHARI PATHAR GAON, P.S.
SILAPATHAR, DIST. DHEMAJI.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY PP, ASSAM.
2:SRI TUNIRAM DOLEY
S/O LATE PADESWAR DOLEY
VILL. MEDHI PAMUA GAON
P.S. SILAPATHAR
DIST. DHEMAJI
PI
Advocate for the Petitioner : MR. M KALITA
Advocate for the Respondent : PP, ASSAM
Linked Case : Crl.A./184/2018
NUMAL GOGOI
S/O SRI PUTUKAN GOGOI
R/O VILLAGE KACHARI PATHAR GAON
PS SILPATHAR
PO AKAJAN
DISTRICT DHEMAJI(ASSAM)
Page No.# 2/20
787110
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY PP ASSAM
2:SRI TUNIRAM DOLEY
S/O LATE PADESWAR DOLEY
R/O MEDHI PAMUAWA GAON
PS SILAPATHAR
PO BURICHUTI
DISTRICT DHEMAJI (ASSAM)
787110
------------
Advocate for : MR. M BISWAS
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
For appellants in Crl.A. 184/2018 : Mr. M. Biswas, Advocate.
For appellants in Crl.A. 252/2018 : Mr. A. Ahmed, Advocate.
For State respondent : Ms. S.H. Bora, Addl. P.P.
For respondent no.2 : None.
Date of hearing : 01.02.2024
Date of judgment : 09.05.2024
JUDGMENT AND ORDER
(CAV)
(K.R.Surana, J)
Heard Mr. M. Biswas, learned counsel for the appellant in Crl.
Appeal No. 184/2018 and Mr. A. Ahmed, learned counsel for the appellant in Crl.
Appeal No. 252/2018. Also heard Ms. S.H. Bora, learned Addl. P.P. for the State.
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There is no representation from the respondent no.2.
2) By filing these two separate appeals under section 374(2)
Cr.P.C., the two appellants herein have assailed the judgment dated 25.04.2018,
passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 165
(DH)/2012, and sentence vide order dated 02.05.2018, thereby the appellants
were convicted of committing offence punishable under section 302/34 and
section 376(2)(g) IPC, and both were sentenced to undergo rigorous
imprisonment for life and to pay fine of Rs.5,000/- (Rupees Five thousand only)
each in default to undergo rigorous imprisonment for another 6 (six) months
each under section 302 IPC. The appellants were also convicted for committing
offence punishable under section 376(2)(g) IPC and both were sentenced to
undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs.2,000/-
each, in default to undergo rigorous imprisonment for 2 (two) months. Both
sentences was ordered to run concurrently.
3) In this order the name of the deceased victim and the informant
are masked and they are hereinafter referred to as 'X' and 'Y' respectively to
avoid disclosure of their identity.
Prosecution case:
4) In brief, the prosecution case is that on 24.03.2012, 'Y' lodged
an FIR with the Sisiborgaon Police Outpost under Silapathar P.S. alleging that on
23.03.2012 at about 7.00 p.m., the victim 'X' had gone missing while enjoying
cultural programmes organized at Kulajan Tiniali to celebrate Ali Aye Ligang
festival. On the following day, the Lot Gaonbura of Gelua Adarsha Gaon
informed that a dead body was lying on the national highway at Gelua area. It
was suspected that the victim 'X' was murdered. Accordingly, Silapathar P.S.
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Case No. 88/2012 under section 302 IPC was registered.
5) On completion of investigation, charge-sheet no. 177/2012
dated 31.10.2012, was submitted in the case and the appellants were sent-up
for trial. In the committal proceeding, the case was found exclusively triable by
Court of Sessions. Accordingly, Sessions Case No. 165(DH)/2012 under section
376(2)(g)/302/34 was registered. On 21.12.2012, charges under section 376(2)
(g) and 302/34 were read over and explained to the appellants. The appellants
had denied the charges and claimed to be tried.
6) The prosecution had examined 17 (seventeen) PWs during trial,
being Tuniram Doley (complainant) (PW-1); Prafulla Doley (PW-2); Umesh Pegu
(PW-3); Smt. Jyotirekha Doley (PW-4); Binod Kuli (PW-5); Smt. Sabita Doley
(PW-6); Sourav Doley (PW-7); Dibyadhar Kardong (PW-8); Manik Tamuli (PW-
9); Dr. Paramananda Deuri (PW-10); Kandarpa Tamuly (PW-11); Babu Ali (PW-
12); Rubul Ali (PW-13); Mustafa Ali (PW-14); Lila Kanta Chutia, I/O (PW-15);
Bimal Konwar (Scientific Officer) (PW-16); and Smt. Renu Bora Handique
(Scientific Officer) (PW-17) and exhibited the following, viz., ejahar (Ext.1);
signatures of complainant -Tuniram Doley [Ext.1(1)]; inquest report (Ext.2);
signature of witness-Tuniram Doley [Ext.2(1)]; seizure list (Ext.3); signatures of
Tuniram Doley [Ext.3(1)]; seizure list (Ext.4); signature of Dibyadhar Kardong
[Ext.4(1)]; signature of witness Babu Ali [Ext.4(2)]; seizure list (Ext.5);
signature of Manik Tamuly [Ext.5(1)]; signature of Kandarpa Tamuly [Ext.5(2)];
post mortem report (Ext.6); signature of Dr. P.N. Deuri [Ext.6(1)]; signature of
Dr. R.N. Pegu, Jt. Director of Health Services, Dhemaji [Ext.6(2)]; sketch map
(Ext.7), signature of Lila Kt. Chutia, I.O. [Ext.7(1)]; charge-sheet (Ext.8);
signature of Lila Kt. Chutia, I.O. [Ext.8(1)]; seized mobile (M. Ext.1); seized
socks (M.Ext.2); and seized SIM card (M.Ext.3). The defence (i.e. appellants)
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did not examine any witness.
7) The learned Trial Court, upon appreciating the evidence on
record arrived at a conclusion that there was no eye witness in the case and
that there were several circumstantial evidence which had all connected links in
the chain, which was coupled with the evidence that the victim was last seen in
the company of the appellants.
8) The circumstantial evidence appearing against the appellants
were summarized by the learned trial Court as follows:-
"(1) On 23-03-2012 the victim/deceased along with PWs-6, PW-7 and others went
to Kulajan to enjoy cultural function on the occasion of Aili-Aie-Ligang Festival.
(2) The witnesses PW-6 and PW-7 (in their evidence during trial) stated that while
they were enjoying the function at the relevant time they saw the victim and the
accused Dipak Gogoi going away from the place of function on a motorcycle.
(3) PW-5 was present at the function venue and he stated that he saw the
victim/deceased going away from the function venue with accused Dipak Gogoi and
Numal Gogoi on a motorcycle.
(4) PW-5 in his statement u/s 164 Cr.PC. stated that he gave his motor cycle to
accused Dipak Gogoi.
(5) The dead body was found lying on the road in injured condition.
(6) As per inquest report injury marks were seen on back and head of the victim.
(7) PM report submitted by Medical Officer (PW-10) after examination of the
victim/deceased shows that the cause of death was due to neurogenic shock
following injury to the vital organ i.e. brain. The injuries were ante-mortem in
nature and within 24 hours at the time of examination.
(8) As per report of PW17/scientific officer, examination of semen stain on the panty
worn by the victim and vaginal swab gave positive test for human spermatozoa.
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(9) PW-15/IO seized mobile sim card in the name of accused Dipak gogoi and
collected call details and confirmed calls from his sim to the victim on her mobile
vide Ext 3. IO also seized the motor cycle used by the accused persons on being led
and shown by accused Numal Gogoi vide ext.4"
9) Accordingly, by holding that the appellants had failed to
discharge their burden of proof as per section 106 of the Evidence Act, 1872.
On the basis of evidence on record, the learned Trial Court had held that the
appellants had fulfilled their carnal desire and then committed murder of the
victim girl to wipe out the evidence. It was held that the prosecution has been
able to prove the charges under section 302/34 IPC and section 376(2)(g) of
the IPC beyond all reasonable doubt and accordingly, the appellants were
convicted on the said charges and after sentence hearing, both the appellants
were awarded sentence of rigorous imprisonment for life and to pay a fine of
Rs.5,000/- (Rupees Five thousand only) each in default to suffer rigorous
imprisonment for another 6 (six) months under section 302 IPC and both the
accused persons were also sentenced to undergo rigorous imprisonment for 10
years and to pay a fine of Rs.2,000/- (Rupees Two thousand only) each in
default to suffer rigorous imprisonment for another 2 (two) months under
section 376(2)(g) IPC. The substantive sentences were ordered to run
concurrently.
Submissions:
10) While the learned counsel for the appellants had submitted that
there was insufficient evidence to link the appellants with the alleged crime and
that the last seen theory was negated by the prosecution witnesses and
accordingly, it was submitted that there was absence of any evidence to sustain
the conviction and the resultant sentence awarded to the appellants. In support
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of their respective submissions, the learned counsel for both the appellants have
respectively cited the following cases, viz., in Crl.A. 184/2018 - (i) Chotkau v.
State of Uttar Pradesh, (2023) 6 SCC 742 , (ii) Criminal Trials Guidelines
regarding Inadequacies and Deficiencies, In Re Vs. State of Andhra Pradesh &
Ors., (2021) 10 SCC 598 (FB) , (iii) Nizam v. State of Rajasthan, (2016) 1 SCC
550, (iv) Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 , (v) State of
Uttar Pradesh v. Mohd. Iqram & Anr., (2011) 8 SCC 80 , (vi) Rajiv Phukan & Anr.
v. State of Assam, 2009 (2) GLT 414 (FB) . In Crl.A no. 252/2018 - (vii) Indrajit
Das v. The State of Tripura, AIR 2023 SC 1239 , (viii) Rambraksh @ Jalim v.
State of Chhatisgarh, (2016) 12 SCC 251 , (ix) Kanhaiya Lal v. State of
Rajasthan, (2014) 4 SCC 715, (x) Sujit Biswas v. State of Assam, (2013) 12 SCC
406, (xi) Prithipal Singh & Ors. v. State of Punjab & Anr., (2012) 1 SCC 10 , (xii)
Sunil Kumar Sammbhudayal Gupta v. State of Maharashtra, (2010) 13 SCC 657,
(xiii) Arjun Marik & Ors. v. State of Bihar, (1994) Supp (2) SCC 372 , (xiv) Sharad
Birdhichand Sarda v. State of Maharashtra, (1984) 4 SC 116 , (xv) Jiarul Hoque
v. State of Assam & Anr., 2020 (2) GLT 151, (xvi) Koli Trikam Jivraj and Ors. Vs.
The State of Gujarat, (1968) 0 Supreme (Guj) 3, (xvii) Azizul Hoque Vs. The
State of Assam, (2023) 0 Supreme (Gau), 805, (xviii) Sajjadanashin Sayed Md.
B.E. Edr. (D) by Lrs. Vs. Musa Dadabhai Ummer & Ors., (2000) 3 SCC 350 .
11) Per contra, the learned Addl. P.P. has made submissions to justify
the conviction and the sentence awarded by the learned Trial Court. In support
of her submissions, the learned Addl. P.P. has cited the case of Ram Gopal v.
State of Madhya Pradesh, (2023) 0 Supreme(SC) 126.
Point of determination:
12) The only point of determination which arises for determination in
this appeal is whether the evidence on record culled out a complete chain of
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circumstances against the appellants to justify their conviction and sentence?
Discussion and decision:
13) For deciding the point of determination, the evidence available on
record has been examined.
Evidence of the prosecution witnesses:
14) Before considering the submissions made by learned counsel for
both the appellants and the learned Addl. P.P., it would be appropriate to go
through the evidence, which is available on record.
15) The summary of evidence against Numal Gogoi, appellant in Crl.A.
No. 184/2018, are as follows:-
a. The PW nos. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 did
not implicate the appellant. The PW-15 was the Investigating Officer of
the case.
b. PW-5 knows both the appellants. He saw both the appellants along
with the deceased at the site of Ali Aye Lingang function and the victim
had left the site of the function along with both the appellants in a
motor bike. However, in his cross-examination by Numal Gogoi, PW-5
had stated that it is not a fact that he had not seen the appellant going
out with the deceased girl on a motor bike on the day of incident. But
in his cross-examination for Dipak Gogoi, PW-5 had incriminated the
said appellant.
16) The summary of evidence against Dipak Gogoi, appellant in Crl.A.
No. 252/2018, are as follows:-
a. PW-1 is a hearsay witness. He was informed by his three daughters-
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in- law that his victim daughter had left the place by saying that they
need not look for her and they had also informed that the victim had
told them that she had gone to get married to Dipak. In his cross-
examination, he had stated that neither in the FIR nor in his statement
before police he had stated whatever his daughters- in- law had told
him.
b. The PW nos. 2, 3, 4, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17 did not
implicate the appellant. The PW-15 was the Investigating Officer of the
case.
17) PW-5 knows both the appellants. He saw both the appellants
along with the deceased at the site of Ali Aye Lingang function and the girl left
the site of function along with both the appellants in a motor bike. However, in
his cross-examination by Dipak Gogoi, PW-5 had stated that at first Dipak and
victim had gone somewhere on a motor bike but later, both returned. In his
cross-examination for Dipak Gogoi, PW-5 had incriminated the said appellant by
denying the suggestion that the victim had not gone with Dipak again on a
motor bike.
18) PW-6 also knows the appellant Dipak Gogoi but don't know the
appellant Numal Gogoi. He had stated that appellant Dipak called the victim 'X'
away while they were watching the function. Thus PW-6 has not stated that the
victim left with the appellants on two occasions.
Analysis of evidence of PW nos. 1, 6 and 7:
19) PW-1 is the father of the victim. PW-6 is the daughter-in-law of
the complainant and wife of PW-7, who is the son of the complainant. The said
PW nos. 1, 6 and 7 are not the eye witnesses to the incident of murder of the
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victim 'X'. PW-1 is a hearsay witness. PW-1 had stated in his examination- in-
chief that Sneha (sic. should have been 'X') went to Kulajan to watch the Ali Aye
Lingang festival with Anu Doley, Dipti Doley, Sourav Doley and Sabita Doley.
20) PW-1 had stated that 'X' had told Anu Doley, Dipti Doley, Sourav
Doley and Sabita Doley not to look for her as she was going to marry Dipak
Gogoi. The PW-1 had also admitted in his cross-examination that he had neither
stated in his FIR nor did he tell the I.O. whatever his daughter- in- laws had told
him. It appears to be very unusual that the four family members who were
accompanying 'X', the victim, did not make any attempt either to stop the
deceased from eloping or to immediately inform the complainant that 'X' had
eloped with Dipak Gogoi to get married and would not be returning. Thus, the
PW-6 does not state that her husband (PW-7) had seen the victim going out
with the appellants.
21) The PW-7 had stated that he knows Dipak and 'X' was his elder
sister. He had stated that the incident took place about three years ago. He had
also stated in his examination-in-chief that he along with his wife (i.e. PW-6)
and 'X' were watching Ali Aye Lingang festival at Kulajan and Dipak called away
'X' outside and that 'X', by telling them that she was going to marry Dipak, went
away. Thus, the PW-7 had not named Numal Gogoi, the appellant in Crl.A.
184/2018 as a person with whom 'X' went away. Moreover, PW-7 also did not
state how and when they had left the place. However, in her cross-examination,
PW-6 had admitted that in her statement before the police she had not stated
that Dipak had called 'X' away while she was watching the function.
22) PW-7 did not state in his examination- in- chief either that they
had seen 'X' going out in the company of the appellants or that the deceased
had gone out and came back with the appellants and then brought chana
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(grams) for them to eat. However, PW-1, who is a hearsay witness had stated
that after going out from the place of celebrations, the appellants and the
deceased had returned back and had even gave chana (grams) to her four
family members, including PW-6 and PW-7 to eat. Thus, the PW nos. 1, 6 and 7
did not state in their evidence that they had seen the appellants and the
deceased going out from the place of celebrations on the second occasion.
23) Thus, the last seen theory of the deceased with the appellants is
not found to be culled out from the evidence of PW nos. 1, 6 and 7. Accordingly,
the evidence of PW nos. 1, 6 and 7 are not found to incriminate the two
appellants in any manner whatsoever.
Analysis of evidence of PW-7:
24) PW-7 is the younger brother of the deceased. In his examination-
in-chief, he had stated that he along with his wife and 'X', were watching
function at Kulajan and Dipak called away 'X' outside. He had stated that 'X' by
telling them that she was going to marry Dipak, 'X' went away, leaving us at the
site of the function. He had stated that in the morning of the following day,
finding her sister's dead body lying on the road, when people informed them,
his father and others went to the place of occurrence and they found dead body
of 'X' and his father had lodged a complaint at the police station and the police
had recorded his statement during investigation.
25) His cross-examination is relevant and therefore, his cross-
examination is extracted in verbatim:
"The function was held in Kulajan. It is not a fact that while making statement to
the police, I didn't state that I had gone to watch the function. It is not a fact that
while making statement to the police, I stated that I was at home. While making
statement to the police, I stated that a person with the surname 'Das' had come to
our house on the previous day of the incident; that he had stayed in our house in
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the night; that he had differences with 'X' over some issue and that he had given
'X' Rs.150 (Rupees One hundred fifty) to drink tea etc. in the function. I stated to
police that my elder sister had invited the person with the surname 'Das' to watch
function in the evening. I also stated to police that another boy with the surname
'Das' from Panbari ghat had come to our house. I stated to police that another boy
by the name Rahul Bora had told 'X' that he loved her and would marry her. I
stated to police that I had a suspicion that the two boys with the surname 'Das"
and the boy named Rahul Bora had killed 'X'. It is not a fact that Dipak had not
called away 'X' from the site where function was going on. It is not a fact that I
have adduced false evidence in the court today."
26) Thus, it is seen that while PW-7, the younger brother of the
deceased had stated that he along with his wife (PW-6) and 'X' had gone to
watch the program, PW-1, who is a hearsay witness, had stated that four family
members, namely, Anu Doley, Dipti Doley, Sabita Doley and Sourav Doley went
with 'X' to watch the programme, which appears to be an exaggeration.
27) The PW-7 has stated that he had suspicion that the two boys with
the surname 'Das" of Panbari Ghat and the boy named Rahul Bora had killed 'X'.
However, the prosecution is silent as to the nature of investigation against them.
Evidence of PW nos. 2, 3, 4, 8, 9 and 11 to 14:
28) None of these PW nos. 2 to 9 and 11 to 14 are eye witness to the
murder of 'X', the deceased. They have not implicated the appellants by their
evidence.
Evidence of PW-5:
29) PW-5 had stated in his examination-in-chief that he had seen the
appellants with 'X' at the site of function and that she had left the site with the
two appellants on a motorbike. However, in his cross-examination, he had
stated that at first Dipak and 'X' had gone somewhere on a motorbike. Later,
both had returned and he had denied the suggestion that after returning Dipak
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did not go with the girl again. He had also denied that he did not tell the police
that he had seen Dipak and Numal Gogoi going out with the deceased girl on a
motorcycle.
30) However, the I.O. (PW-15), in his cross examination had stated
that Binod Kuli did not state that he had seen 'X' going out with Dipak. Hence,
the defence had brought out the contradiction regarding the statement of PW-5
that he had seen the deceased going out with the appellants. Thus, that part of
the evidence of PW-5 is not reliable.
Evidence of PW-10, Senior Medical & Health Officer, who had conducted post
mortem examination:
31) As per the evidence of the Doctor who had conducted post
mortem examination of the dead body of the victim had recorded in connection
with the external appearance of the dead body that the dead body was of a
stout girl. Rigor mortis was present and an abrasion was present over the 8/9
joint on back. Whole face was stained with blood and clotted blood was also
seen on the nose. In respect of Cranium and spinal canal, it was stated that a
round shaped swelling of size 7 X 5 X 1 cm was present over occipital region.
On dissection of the girl, clotted blood was seen and hematoma was also
present. Both temporal part of right and left bluish was in colour with size 9 x 5
x 1/4 cm on the left side and 9 x 4 x 1/4 cm on the right side of the vertebrae.
After dissection, tear of the membrane on occipital region underneath
haematoma was present. On the occipital region the haematoma was present.
Abrasion was present on the occipital region of the brain which corresponded to
the haematoma. Clotted blood was seen on both hemisphere of brain. Organs of
generation of the girl healthy, vaginal swab was taken and handed over to the
escort i.e. I.O. No vaginal or extra injury was seen in the vagina, vaginal canal
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was code. Viscera such as stomach, kidney, liver and vaginal swap and uterus
was handed over to the I.O. In his opinion, the cause of death is due to
neurogenic shock following injury to the vital organ i.e., brain. The injuries were
ante-mortem in nature and within 24 hours at the time of examination. He had
exhibited the Post-mortem report as Ext.6 his signature was exhibited as
Ext.6(1). He had exhibited the signature of Dr. R.N. Pegu as Ext.6(2), who was
the then Joint Director of Health Services, Dhemaji, whose signature was known
to him. Death was within 24 hours from the time of examination.
32) Thus, from the evidence of PW-10 and the contents of post
mortem report (Ext.6), there is no evidence of sexual assault on the victim.
Evidence of PW-15 i.e. the I.O.:
33) The I.O. did not disclose any material in his examination- in- chief
which implicate the appellants in any manner. Thus, his only cross-examination
was on the evidence given by Binod Kuli (PW-5), to which PW-15 replied that
Binod Kuli did not state that he had seen 'X' going out with accused Dipak.
34) In his examination-in-chief, the PW-15 had stated that it is found
in the investigation that the seized sim card belonged to Dipak Gogoi. In this
regard, it is seen that as per the contents of the seizure list (Ext.3), the said sim
card was seized from the appellant Dipak Gogoi. Therefore, there is no doubt
that the said sim card belonged to the appellant, Dipak Gogoi. However, the said
sim card was not seized from the site where the dead body was found. From the
site of the dead body, another sim card was seized vide Ext.4. Therefore, the
I.O. (PW-15) has not given any evidence that the sim card, which was seized
vide Ext.4 and recovered from the site where dead body was found belong to
Dipak Gogoi. Hence, the seizure of sim card belonging to appellant, Dipak Gogoi
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cannot be said to have evidence regarding commission of any offence by him.
Evidence of PW-16:
35) PW-16 is the Senior Scientific Officer, Toxicology Division in the
Directorate of Forensic Science. As per his FSL Report (Ext.7), no poison was
found in Ext. no. Tox-242(a), Tox-242(b), Tox-242(c) and Tox-242(d), which
were viscera he had examined. His signature was exhibited as Ext.7(1). Thus,
there is nothing in the said report to implicate the appellants.
Evidence of PW-17:
36) PW-17 is the Scientific Officer, Serological Department at FSL,
Khanapara. As per his FSL Report (Ext.8), Ext. no. Sero 2972/A and Sero 2972/B
gave positive test for human spermatozoa. His signature was exhibited as
Ext.8(1). However, there is nothing in his evidence to implicate the appellants.
Whether there is sufficiency of circumstantial evidence against the appellants:
37) The existence of circumstantial evidence against the appellants,
as found by the learned Trial Court can be summarized as under:-
a. It was not in dispute that the appellants were last seen with the
victim.
b. The victim died due to the injury sustained by the victim and the
evidence of rape is also not in dispute.
c. There is leading to discovery of the motorcycle used by the
appellants and that there was clear evidence that as a consequence of
information received from Numal Gogoi, the appellant in Crl.A.
252/2018, the motorcycle was recovered. At the time of revealing the
information, the said appellant was in police custody.
d. From the point when the appellants were last seen with the
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deceased, there is no possibility of any other person meeting the
deceased.
e. Accordingly, it was held that the circumstances brought on record by
the prosecution were consistent with the hypothesis of guilt of the
appellants and they are of conclusive nature and they exclude every
possibility hypothesis except the one that the appellants were involved
in the commission of the alleged offence of rape and murder.
38) Accordingly, on the basis of evidence on record, it was held
by the learned Trial Court that the appellants had committed gang rape within
the meaning of section 376(2)(g) of the IPC. It was further held that the
appellants to fulfill their carnal desire committed rape on the victim to wipe out
the evidence killed her.
39) However, on the analysis of the evidence on record, it is noted
that as per the post- mortem report (Ext.6), the post mortem examination was
conducted on 02.15 pm on 24.03.2012, and the PW-10 had opined that death
was within 24 hours. None of the PWs examined by the prosecution had given
an approximate time when 'X' was seen leaving the programme venue with the
appellants. The positive evidence of PW-1 in his examination- in- chief and of
PW-5 in his cross-examination is to the effect that the appellants and the victim
had left on the motorcycle and then returned to the programme. However, PW-5
had denied the suggestion that after returning Dipak, appellant in Crl.A.
252/2018 did not go out with the victim again on the motor-cycle. Thus, PW-5
does not implicate Numal Gogoi, going out with the victim on the second
occasion.
40) Manik Tamuli (PW-9) is the seizure witness of a motorcycle. The
seizure list was exhibited as Ext.5 and his signature was exhibited as Ext.5(1).
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The said PW-9 had stated that a person named Prafulla Saikia had kept his
motorcycle at his house. In his examination-in chief, he had stated that he does
not know why the motorcycle was seized. The said Prafulla Saikia was not
examined as PW. Moreover, the prosecution had also examined one Kandarpa
Tamuli as PW-11, who was also a witness to the seizure of the motorcycle
whose signature was exhibited as Ext.5(2). In his examination-in-chief, PW-11
had stated that he does not know why the motorcycle was seized. The I.O.,
namely, Lila Kt. Chutia (PW-15) had stated in his examination-in- chief that he
had seized one motorcycle through Ext.5. The registration certificate and/or any
document to show that the appellants were the owners of the seized motorcycle
were not exhibited. None of the PWs have identified that the motorcycle that
was seized vide Ext.5 was the motorcycle by which the appellants and the victim
were going together for the second time. There is no evidence about the time
when the motorcycle was left in the house of PW-9. Therefore, when there is no
positive evidence by any PWs as to the reason why the motorcycle was seized,
and the said seized motorcycle was also neither exhibited nor any evidence was
led to establish that the seized motorcycle was the one that was used by the
appellants to take 'X' away, the prosecution had failed to prove that the victim
was last seen travelling with the appellants on the said seized motorcycle.
41) There is no evidence to show the distance between the place
where the dead body was recovered from the place where Ali Aye Lingang
festival was being celebrated. Thus, in the absence of disclosure of time when
the appellants had purportedly left the place where Ali Aye Lingang festival was
being celebrated, the finding by the learned Trial Court that the appellants were
last seen with the deceased and that there is no possibility of any other person
meeting the deceased is a presumptive finding.
Page No.# 18/20
42) As per the opinion of the doctor (PW-10), who had conducted the
post mortem examination, the organs of generation of the girl was healthy and
there was no vaginal or extra injury present in the vagina. The prosecution has
failed to convincingly demonstrate how it was possible to sustain the theory of
gang rape when the vagina did not have any external or internal injuries. The
post-mortem report, sadly, is silent as to the status of hymen of the victim,
which could have thrown some light.
43) The Scientific Officer, Serological Department at FSL, Khanapara
was examined as PW-17. Although as per his FSL Report (Ext.8), Ext. no. Sero
2972/A and Sero 2972/B gave positive test for human spermatozoa, but the
prosecution had failed to match the said specimen with the blood and/or DNA of
the appellants. Thus, the Court is inclined to hold that there in nothing in the
evidence of PW-17 to implicate the appellants.
44) The prosecution did not have the appellants examined by the
doctor to find out that if there were any tell-tale signs of the appellants raping
the victim like strains of blood or semen, marks of scratches, etc. on their body.
45) Thus, on the analysis of the evidence of PW-10 and the post-
mortem report (Ext.6), there was no injury on/or in the periphery region of the
private part of the victim.
46) The I.O. had seized one mobile SIM card, some broken parts of a
G-Five mobile phone and a pair of chocolate colour socks vide seizure list
(Ext.4). However, Babu Ali (PW-12), who was a seizure witness and whose
signature was exhibited as Ext.4(1), had stated in his examination-in-chief as
well as in his cross-examination that he did not get to see the seized item and
what item was seized by the police. The I.O. had not sent the mobile and SIM
Page No.# 19/20
card for forensic analysis of its memory and/or contents. The call detail record
of last few calls made by the deceased or received by the deceased, which was
very vital because the PW nos. 1, 6 and 7 had stated that the victim told PW-6
and 7 that she was intended to run away with Dipak, appellant in Crl.A.
252/2018.
47) Moreover, the PW-7 had introduced the names of three other
suspects. The names of those three persons are entered in the charge-sheet
(Ext.6) as persons who were not sent up for trial. There is no statement in the
charge-sheet regarding the said three non-charge-sheeted accused persons.
48) Thus, from the evidence of the PWs, the finding of the learned
Trial Court that the circumstantial evidence brought on record by the
prosecution were consistent with the hypothesis of guilt of the appellants and
they are of conclusive nature and they exclude every possible hypothesis except
the one that the appellants were involved in the commission of the alleged
offences of rape and murder is not found sustainable on facts.
49) In light of the discussions above, the Court does not find that in
this case the chain of circumstantial evidence is complete. The links of various
chains of events are found to be disconnected. This is not a case where the
circumstances from which inference as to the guilt of the appellants is drawn
could not be proved beyond reasonable doubt. The point of determination is
answered accordingly.
50) In the case of Indrajit Das (supra), it was held by the Supreme
Court of India to the effect that the basic links in the chain of circumstances
starts with motive; then move on to last seen theory; recovery of medical
evidence; expert opinion, if any; other additional link, if any. Such a chain has
Page No.# 20/20
not been established in this case in hand.
51) In the case of Arjun Marik (supra), the Supreme Court of India
has held that the conviction cannot be based only on the circumstance of last
seen together. In the absence of evidence by the PWs about the time when the
appellants were last seen together was not matched by the prosecution with the
time of death of the victim. This was a relevant factor because of the positive
evidence by PW-1 and PW-5 that the victim and the appellants had left together
and came back and as per PW-1, the victim had given chana (grams) to her four
family members to eat, who went with her to attend the function.
52) Therefore, the Court is of the considered opinion that the
prosecution has not been able to make out a chain of circumstances beyond
reasonable doubt and therefore, both the appellants are entitled to be given the
benefit of doubt and they are thus, found entitled to be acquitted on being
given the benefit of doubt. Accordingly, the appellants are both acquitted.
53) Resultantly, the appellants are entitled to be released forthwith, if
not wanted in any other case.
54) Let the TCR be returned.
JUDGE JUDGE
Comparing Assistant
