Gauhati High Court
Page No.# 1/12 vs The State Of Assam on 13 February, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/12
GAHC010282062019
2025:GAU-AS:1451
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/106/2019
RADHA MOHAN HAJONG
BAKSA, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MS B SARMA, AMICUS CURIAE,
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE KAKHETO SEMA
For the Appellant : Ms. B. Sarma, Amicus Curiae.
For the Respondent : Ms. A. Begum, Addl. P.P, Assam.
Date of Hearing : 29.01.2025
Date of Judgment : 13.02.2025
Page No.# 2/12
JUDGMENT & ORDER
(S.K. Medhi, J)
The instant appeal has been preferred from jail against the judgment dated
12.04.2019 passed by the learned Sessions Judge, Baksa, in Sessions Case No.
52/2018 (Old No. 46/2017), whereby, the appellant was convicted and
sentenced to undergo Rigorous Imprisonment (RI) for life with a fine of Rs.
5,000/- (Five Thousand), in default, to undergo Simple Imprisonment (SI) for
six months under Section 302 IPC.
2. The same involves the death/killing of the wife of the appellant, who was
accused of such offence.
3. The criminal law was set into motion by lodging of an Ejahar on 25.09.2016
by PW-3, who is the brother of the deceased. It has been stated that at about
3.40 pm on that day when his younger sister was working in the house, the
appellant had suddenly hacked her on her neck by means of a Dao as a result
of which she fell on the ground and died on the spot. It was stated that he
came to know about the same when the neighbours immediately came there
and the accused went to the Police Station taking along the Dao. Based on the
aforesaid Ejahar, the formal F.I.R. was registered and investigation was done
leading to laying of a charge-sheet. The charges were accordingly framed by the
learned Court under Section 302 of the IPC and on its denial, the trial had
begun.
4. The prosecution had adduced evidence through 9 (nine) numbers of PWs
and subsequent to filing of this appeal, evidence of 2 (two) CWs have also been
Page No.# 3/12
recorded.
5. PW-1 is a person of the locality who had deposed of hearing that the
accused had killed his wife. He had also heard that the accused was seen
running with a Dao.
6. PW-2, similarly, deposed that he heard from one Dipak, who was his
brother regarding the incident. It may be mentioned that initially Dipak was not
examined, who was only examined as a Court Witness, later as per orders
passed by this Court in this proceeding.
7. PW-3 is the brother of the deceased who is also the informant. He deposed
of witnessing the appellant coming with a Dao to the highway. He also deposed
of hearing the accused shouting that he had killed a person. In his cross-
examination, however, he had clarified that he had not seen the occurrence.
8. PW-4 had deposed of hearing from local people about the incident. He is a
Seizure Witness and the Seizure List was proved as Exhibit-1. He had, however,
clarified that the Seizure List was signed by him at the Police Station.
9. PW-5 is the informant, who had stated that while coming home from
market, some villagers reported that the appellant was proceeding on road
shouting that he had killed a person. He had deposed that his niece Gita Hajong
had told him about the incident. It may be mentioned that Gita Hajong was
initially not examined by the prosecution and has been done consequently upon
orders passed by this Court.
10. PW-6 is the Doctor who had conducted the post-mortem on the dead body.
As per his opinion, the death was caused by a sharp cut wound on the neck.
Page No.# 4/12
11. PW-7 had deposed that he saw the appellant proceeding on road shouting
that he had killed his wife. He had also deposed about informing the Gaonbura,
who had, accordingly reported the matter to the Police.
12. PW-8 had deposed that he had seen the appellant coming to the Police
Station and he was himself present in the Police Station. In the cross-
examination, however, he had clarified that he had not seen from whom the
Dao was seized.
13. PW-9 is the I.O., who had deposed that one local journalist had informed
him about the incident, for which, a GD entry was registered and thereafter, he
had gone to the place of occurrence. On way, he had found the appellant. He
had also stated about preparing the Sketch-Map which was proved as Exhibit-3.
The F.I.R. was proved as Exhibit-5. He had also submitted that Executive
Magistrate, Shri Aditya Gogoi had conducted the inquest, which was proved as
Exhibit-4. The Charge-sheet was proved as Exhibit-6.
14. As mentioned above, this Court had directed examination of Dipak Hajong
and Gita Hajong, who were found to be material witness. And, accordingly
Dipak Hajong was examined as CW-1 on 10.06.2023. He had deposed that he
heard that the appellant had killed the deceased. He had also heard from people
regarding the appellant proceeding by the road. He had, however, clarified that
his residence was about 300 meters from the residence of the appellant and
there was a river in between. He had also clarified that he cannot say from
whom he had heard about the incident.
15. CW-2 is the daughter of the appellant, Gita Hajong. She had deposed that
the appellant had chased her for which she fled away. Thereafter, she heard
Page No.# 5/12
that the appellant had killed her mother. Based on the aforesaid depositions and
materials, the same were placed before the appellant in his examination under
Section 313 of the Cr.P.C., wherein, the appellant has denied his involvement.
16. After consideration of the materials on record, the learned Judge has
passed the impugned order of conviction, which is the subject matter of
challenge.
17. We have heard Ms. B. Sarma, learned Amicus Curiae for the appellant as
well as Ms. A. Begum, learned Addl. Public Prosecutor for the State.
18. Ms. Sarma, the learned Amicus Curiae for the appellant, has submitted that
admittedly, the case in hand was not based on any direct evidence but
circumstantial evidence. She has submitted that to come to a conclusion of guilt
in a matter of this nature, there has to be a complete and unbroken chain which
leads to the only conclusion of guilt of the accused person. She has submitted
that the chain was not completed and the prosecution did not make endeavour
to have the links to complete the chain. She has submitted that there are gross
discrepancies on the aspect of seizure of the Dao and also with regard to
preparation of the Seizure List. She has highlighted the aspect that there was no
Forensic Test done on the Dao, so as to connect the same with the appellant
and also that the same was used for commission of the offence. She submits
that Dao is a common instrument found in every household and therefore, the
same cannot be a conclusive material to hold the appellant guilty. She has
highlighted that it is not even clear from whom the Dao was seized. She has
submitted that the possibility that the appellant had gone to the Police Station
to report that the wife was killed by someone else, cannot be totally ruled out.
Page No.# 6/12
19. Coming to the evidence of PW-1, PW-2, PW-3, PW-4, PW-5, PW-7 and PW-
8, she submits that all of the said witnesses are hearsay and their evidence
cannot be taken into consideration. She has submitted that PW-2 had deposed
that he heard about the incident from one Dipak, his brother, who was not
examined. Even when Dipak was examined as CW-1, he also appeared to be a
hearsay witness. She has also highlighted the aspect that the said Dipak could
not have been a reliable witness as, admittedly, his residence was about a
distance of 300 metres from the house of the appellant and there was a river in
between. It, therefore, transpires that by no stretch of imagination, the CW-1
could have heard anything like hue and cry about the incident either from the
daughter or anybody else. In fact, CW-1 had clarified that he cannot say from
whom he had heard about the incident. Similarly, so far as CW-2 is concerned,
the daughter of the appellant, she had deposed that her father had chased her
and out of fear, she had fled away and thereafter, she could hear about the
killing of the mother by the appellant.
20. By drawing the attention to the Sketch-Map, which has been proved as
Exhibit-3, the learned Amicus Curiae has submitted that as per the same, there
is the house of one Ajit Hajong in the vicinity who, however, was not examined.
She submits that all these factors would be relevant and therefore, the
conclusion arrived at by the learned Judge is not correct and the appellant is
liable to be held as not guilty and, accordingly, be acquitted. She had informed
that the appellant has, in the meantime spent about 5 (Five) years 10 (Ten)
months in the jail.
21. Per Contra, Ms. Begum, the learned Addl. Public Prosecutor has submitted
that the chain of events is complete and therefore, the conclusion arrived at by
Page No.# 7/12
the learned Trial Court is in accordance with law. As regards the evidence and
materials on record, the learned APP has submitted that PW-3 had deposed of
witnessing the appellant proceeding by the road with a Dao. She has highlighted
the aspect that there was no explanation forthcoming from the appellant, which
is necessary under Section 106 of the Indian Evidence Act. As regards the
evidence of CW-2, the learned APP has submitted that no daughter would like to
implicate her father falsely and therefore, there is veracity in her deposition
which is required to be accepted. As regards the submission made by the
learned Amicus Curiae raising the possibility of involvement of a third person,
the learned APP has submitted that no defence witness was produced to bring
in the aforesaid aspect of involvement of a third person. The learned APP,
accordingly submits that the present appeal is liable to be dismissed.
22. The rival contentions have been duly considered and the materials on
records, including the LCRs have also been carefully examined.
23. Admittedly, in the instant case, there is no eyewitness and the same is
based on circumstantial evidence. PW-1, PW-2, PW-3, PW-4, PW-5, PW-7, PW-8
and CW-1 & CW-2 had deposed of hearing about the incident. PW-1 even states
that regarding the aspect that the appellant was seen running with a Dao was
also heard by him and not witnessed. Similarly, though PW-3 had deposed of
witnessing the appellant coming out with a Dao to the highway, the said
statement appears to be contradictory to the statement of the I.O. who had
deposed that no such statement was made by PW-3 before him in his
examination under Section 161 of the Cr.P.C. So far as PW-4 is concerned that
he heard from local people regarding the incident and is also a Seizure Witness,
the evidence of the I.O., who had deposed as PW-9, is required to be taken into
Page No.# 8/12
consideration. The I.O. had deposed that no such statement was made by the
PW-4 in his examination under Section 161 of the Cr.P.C. Similar contradiction is
also with PW-5 that while coming home from the market, some villagers had
reported that the appellant was proceeding on road shouting that he had killed
a person. The I.O. has clarified that no such statement was made by the said
PW-5 in his examination made before him. The Doctor who had conducted the
post-mortem was examined as PW-6 and it is only the aspect of use of a sharp
cutting weapon which has been proved. Though a Dao has been seized in this
matter, there is no material as to from whom or where the Dao was seized.
While the I.O., who had deposed as PW-9, has stated that while going to the
place of occurrence on being informed by a local journalist and registering a GD
entry, he could find the appellant on the way. He does not say anything
regarding any seizure of a Dao which was found on the hands of the accused.
24. The Seizure List which has been exhibited as Exhibit-1 has, on the other
hand, mentioned that the time of seizure of the Dao was 7.30 pm. The materials
on record, including the F.I.R., clearly shows that the incident was between 3 to
4 pm and therefore, there is no explanation as to why the seizure was done at
7.30 pm, which does not even state that the Dao was seized from the hands of
the appellant or from his residence. The Seizure Witness, PW-4 had also
deposed that he had signed the Seizure List in the Police Station. All these
aspects raise a serious doubt on the seizure of the Dao. In this regard, the
Seizure List, which has been proved as Exhibit-1, reflects that there were 3
(three) Seizure Witnesses. The deposition of the 3 (three) Seizure Witnesses,
namely,(i) Narayan Rabha (PW-8), (ii) LTI of Uttam Hajong (PW-5) and (iii) Shri
Giren Rabha (PW-4) would show that none of them supports the prosecution
case.
Page No.# 9/12
Seizure Witness No. 1 i.e. the PW-8, namely, Narayan Rabha, in his
deposition has stated as follows:
"...The police seized the dao from the accused vide Ex-1. Ex-1 (2) is my
signature. The police inquired about the incident from me.
xxx
I have not seen the seized dao today in the court. I saw the sized dao at about
7.30 p.m. at the police station. I have not seen from whom the police seized the
dao."
Seizure Witness No. 2 i.e. the PW-5, namely, Shri Uttam Hajong, in his deposition,
has not stated anything in that regard.
Seizure Witness No. 3 i.e. PW-4, namely, Shri Giren Rabha, has deposed as
follows:
"...The police seized the dao from the accused vide Ex- 1. Ex-1 (1) is my
signature. The police inquired about the incident from me.
xxx
I signed the Ex-1 at the police station. I have not seen the sized dao in the
court today. I along with Uttam Hajong and Naresh Hjong went to the police
station."
25. It appears that the only material which was against the appellant was
moving by the highway with a Dao and shouting that he had killed a person.
The said aspect is also not proved beyond all reasonable doubt by the
witnesses. However, even assuming that the said aspect was proved that by
itself, would not be sufficient to come to a conclusion that it is the appellant,
who had caused the death of the deceased.
26. The Hon'ble Supreme Court in this landmark case of Sharda Birdhichand
Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116, has laid down
Page No.# 10/12
as follows:
"...153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be said
to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established.-
It may be noted here that this Court indicated that the circumstances
concerned 'must or should' and not 'may be' established. There is not
only a grammatical but a legal distinction between 'may be proved' and
"must be or should be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra where the following
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.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence."
27. In the case of Sujit Biswas Vs. State of Assam, reported in (2013) 12
SCC 406, the Hon'ble Supreme Court has laid down that suspicion how strong it
may be, cannot replace the requirement of proof beyond all reasonable doubt.
Page No.# 11/12
The following excerpts would be relevant for the purpose:
"13. Suspicion, however grave it may be, cannot take the place of proof,
and there is a large difference between something that `may be' proved,
and something that `will be proved'. In a criminal trial, suspicion no
matter how strong, cannot and must not be permitted to take place of
proof. This is for the reason that the mental distance between `may be'
and `must be' is quite large, and divides vague conjectures from sure
conclusions. In a criminal case, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal proof. The large
distance between `may be' true and `must be' true, must be covered by
way of clear, cogent and unimpeachable evidence produced by the
prosecution, before an accused is condemned as a convict, and the basic
and golden rule must be applied. In such cases, while keeping in mind
the distance between `may be' true and `must be' true, the court must
maintain the vital distance between mere conjectures and sure
conclusions to be arrived at, on the touchstone of dispassionate judicial
scrutiny, based upon a complete and comprehensive appreciation of all
features of the case, as well as the quality and credibility of the evidence
brought on record. The court must ensure, that miscarriage of justice is
avoided, and if the facts and circumstances of a case so demand, then
the benefit of doubt must be given to the accused, keeping in mind that a
reasonable doubt is not an imaginary, trivial or a merely probable doubt,
but a fair doubt that is based upon reason and common sense."
28. In view of the aforesaid discussions and the law holding the field, we are of
the unhesitant opinion that the materials on record would not be sufficient to
come to a conclusion of guilt of the appellant.
Page No.# 12/12
29. We, accordingly, interfere with the judgment dated 12.04.2019, passed by
the learned Sessions Judge, Baksa in Sessions Case No. 52/2018 (Old No.
46/2017) and acquit the appellant by giving the benefit of doubt.
30. The appellant is, accordingly directed to be released forthwith, unless he is
wanted in any other case.
31. The appeal stands allowed. Send back the LCR with the judgment.
32. Before parting, we wish to record our appreciation for the assistance
rendered by the learned Amicus Curiae and she will be entitled to the prescribed
fee.
JUDGE JUDGE
Comparing Assistant
