Gauhati High Court
Page No.# 1/19 vs The Stte Of Assam on 28 February, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/19
GAHC010165292021
2025:GAU-AS:2132-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/33/2021
SUMAN TOPPO
UDALGURI, ASSAM.
VERSUS
THE STTE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MS. R D MOZUMDAR, AMICUS CURIAE,
Advocate for the Respondent : PP, ASSAM,
Before
Hon'ble mr. justice Sanjay Kumar Medhi
HON'BLE MRS. JUSTICE MITALI THAKURIA
Advocate for the Appellant : Ms. RD Mozumdar, Amicus Curiae
Advocate for the Respondent : Ms. SH Bora, APP, Assam
Date of hearing : 25.02.2025
Date of Judgment : 28.02.2025
Page No.# 2/19
Judgment & Order
(S.K. Medhi, J.)
The present appeal has been preferred from jail against the judgment
and order of conviction dated 28.01.2021 passed by the learned Sessions
Judge, Udalguri in Sessions Case No. 117/2018 (GR Case No. 05/18) under
Sections 302/448 of the Indian Penal Code, thereby sentencing the
appellant to undergo RI for life and fine of Rs. 10,000/- (Rupees Ten
Thousand) in default further imprisonment for three months under Section
302 Indian Penal Code and also to undergo six months with a fine of Rs.
500/- (Rupees Five Hundred) only in default further imprisonment for 15
days under Section 448 Indian Penal Code.
2. The criminal law was set into motion by lodging of an Ejahar by the
PW1, dated 02.01.2018. As per the same, on the previous night, the
appellant had assaulted the deceased by a branch of tree while he was
sleeping, causing his death. The Ejahar was accordingly registered and the
investigation was conducted leading to laying of the Charge Sheet. The
charges were accordingly framed and on its denial, the trial had begun in
which, the prosecution had adduced evidence through 10 nos. of witnesses.
3. PW1 is the informant, who had deposed that she was informed by
one Basanti (PW2) who was a resident of the same Tea Garden Line
regarding the incident. She had also deposed regarding the surrender of
the appellant before the Police. In the cross-examination, however, she had
stated of not telling before the Police that PW2 had informed her.
4. PW2 - Basanti is a crucial witness who is a neighbour. She had
deposed of hearing halla on the road by the accused appellant that he had
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killed the deceased. In the cross-examination, however, she had admitted
that she was not an eyewitness. She had also stated that the Police did not
record her statement.
5. PW3 is the uncle of the appellant and the deceased was his brother.
He had deposed of hearing from his wife (PW1) regarding the incident. He
had accordingly gone to the house of the deceased and found him lying on
the veranda in a pool of blood, who was accordingly taken to the Badlapara
Bagan Hospital. In the cross-examination, however, he had clarified that he
was not an eyewitness.
6. PW4 is another brother of the deceased who used to stay in the
house of PW3. He had stated that the deceased, who was his brother was
staying separately with his mother in a different house. In the cross-
examination, however, he had reiterated that he was not an eyewitness.
7. PW5 is the Doctor, who had conducted the post-mortem on the
deceased. He had deposed that on 02.01.2018 he had conducted the post-
mortem wherein he had detected fracture of the skull of the deceased. He
had given the following opinion-
"In my opinion death is due to brain injury and haemorrhagic shock
as a result of ante-mortem head injury. Time since death around 10-
16 hrs."
8. PW6 is a resident of the locality and is a seizure witness, so far as
the murder weapon is concerned and he had stated of signing the Seizure
List by which the Lathi (branch of tree) was seized. In the cross-
examination, however, he had clarified that he was not an eyewitness.
9. PW7 is the wife of the appellant, who was also a seizure witness.
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She had stated that at 10 PM of the fateful night, she had an argument
with the appellant and accordingly left for her maternal aunt's home. In the
cross-examination, however, she had stated that she had not seen the
occurrence.
10. PW8 is a neighbor who was also a seizure witness. He had stated
that he was not present at home at the relevant time and at that stage,
PW8 was declared hostile by the prosecution and was accordingly cross-
examined. In his cross-examination, he had stated that he did not see any
fighting.
11. PW9 is a relative of the appellant who had deposed of hearing some
alarm and thought that it was New Year celebration as it was the first day
of the year. He had thereafter heard from the people about the killing.
12. PW10 is the Investigating Officer (I.O.), who had deposed that on
02.01.2018, the appellant had come to the Police Station and informed that
on the previous night, he had assaulted the deceased and had accordingly
surrendered. He had also deposed about preparing the sketch map and
recovering the Lathi which was shown by the wife of the appellant. In the
cross-examination, however, he had admitted that the lathi was not sent for
any forensic examination. He had proved the GD entry as Exhibit 3 in which
it was registered that the appellant had come to the Police Station and
informed about the assault. The Sketch Map was proved as Exhibit 5.
13. The aforesaid evidence and the incriminating materials were placed
before the appellant in his examination under Section 313 of the CrPC.
Based on the aforesaid evidence and materials on record, the impugned
judgment has been passed which is the subject matter of challenge in the
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present appeal.
14. We have heard Ms. R.D. Mozumdar, learned Amicus Curiae appearing
for the appellant. We have also heard Ms. SH Bora, learned Additional
Public Prosecutor, Assam appearing for the State.
15. Ms. Mozumdar, learned Amicus Curiae has submitted that in the
present case, there is no eyewitness and the conviction is based on
circumstantial evidence. It is submitted that for such a conviction on the
basis of circumstantial evidence, the chain of circumstance has to be a
continuous one without any break and the same should lead to only one
conclusion of the guilt of the appellant. She has submitted that in the
instant case, there is no continuous chain to link the appellant with the
offence in question. She has submitted that though, allegedly the appellant
had surrendered before the Police Station on 02.01.2018 and had made an
admission, there was no endeavour by the prosecution to record the
confessional statement in accordance with law. She has submitted that
under Section 25 of the Indian Evidence Act, the admission made at the
time of surrender before the Police would not be relevant. So far as the
evidence is concerned, she has reiterated that none of the witnesses have
claimed to have witnessed the assault or how the death was caused.
16. Ms. Mozumdar has submitted that so far as the informant PW1 is
concerned, she had stated that she was informed by PW2. However, in her
cross-examination, she had clarified that in her statement under Section
161 of the CrPC, she did not state before the Police regarding the fact that
PW2 - Basanti had informed her. As regards the evidence of PW2 Basanti is
concerned, the learned Amicus has submitted that in her cross-
examination, she had clarified that her statement was not even recorded by
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the Police and she had not made any statement of hearing halla before the
Police.
17. So far as PW3 and PW4 are concerned, who are brothers of the
deceased, the learned Amicus Curiae has submitted that admittedly both
the PW3 and PW4 were residing separately and could hear from somebody
else regarding the occurrence and had thereafter come to the place of
occurrence and had taken the appellant to the hospital. Both PW3 and PW4
had clarified of not being eyewitnesses. As regards PW6 and PW7, the
learned Amicus has submitted that they are simply seizure witnesses.
18. As regards PW7, the learned Amicus Curiae has contended that she
was the wife of the appellant and as per her version, on the date of the
occurrence at about 10 PM, the appellant had a quarrel with her for which
she had left for her maternal aunt's place. PW8 was declared hostile, who,
however in his cross-examination had clarified of not witnessing any fight
between the accused and the deceased. As regards the deposition of PW10
is concerned, the learned Amicus has submitted that the Lathi in question
was not sent for any forensic examination and though he had deposed
regarding the surrender and admission by the appellant before him on
02.01.2018, the confession was not recorded in accordance with law.
19. The learned Amicus Curiae has also drawn the attention of this Court
to the Sketch Map (Exhibit 5) and has contended that there were houses
adjacent to the place of occurrence and no inmates of the said houses were
cited as witnesses who would have been natural witnesses if such an
assault would have taken place. She accordingly submits that the conviction
and sentence are not sustainable which are liable to be set aside.
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20. Per contra, Ms. Bora, the learned Additional Public Prosecutor has
submitted that the circumstances in the instant case are so complete and
continuous that the involvement of the appellant is proved beyond all
reasonable doubt. By drawing the attention of the Court to the deposition
of PW2, Basanti, the learned APP has submitted that she resides in the
same residential line of the Tea Garden and was a natural witness who had
heard halla by the appellant that he had killed the deceased. She has also
drawn the attention of this Court to the response of the appellant to
question No. 3 in his examination under Section 313 of the CrPC where he
had admitted the aspect of surrendering before the Police. She had also
referred to the response made to question No. 15 under the said
examination wherein he had stated about finding the deceased at his house
with his wife on the said evening whereafter both of them had gone away.
21. The learned Additional Public Prosecutor has submitted that so far as
PW2 is concerned, she is a reliable witness who did not have any previous
animosity with the appellant and her testimony is trustworthy. She has also
submitted that the testimonies of PW3 and PW4 who are brothers are
consistent to each other and are reliable. On the aspect of circumstantial
evidence, the learned APP has relied upon the case of Hanumant G.
Nargundkar Vs. State of Madhya Pradesh reported in AIR 1952 SC
343. She accordingly submits that there is no merit in the present appeal
and the same is liable to be dismissed. The relevant portion of the said case
is extracted hereinbelow-
"10. ... It is well to remember that in cases where the evidence is of
a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be fully
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established, and all the facts so established should be consistent
only with the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable ground for
a conclusion consistent with the innocence of the accused and it
must be such as to show that within all human probability the act
must have been done by the accused. ...."
22. At this stage, we have to mention that in the subsequent case of
The State (Through CBI/ New Delhi) Vs. S.J. Choudhary reported in
AIR 1996 SC 1491, a larger Bench did not approve certain observations
made in the case of Hanumant G. Nargundkar (supra). However, those
observations are not on the aspect of the principles of circumstantial
evidence which are required to be followed. For ready reference, the
relevant portion of the case of S.J. Choudhary (supra) is extracted
hereinbelow-
"4. In Hanumant (supra), while dealing with one of the arguments
advanced therein it was stated thus :
'Next it was argued that the letter was not typed on the office
typewriter that was in those days, viz., article B, and that it
had been typed on the typewriter article A which did not reach
Nagpur till the end of 1946. On this point evidence of certain
experts was led. The High Court rightly held that opinion of
such experts was not admissible under the Indian Evidence
Act as they did not fall within the ambit of Section 45 of the
Page No.# 9/19
Act. This view of the High Court was not contested before us.
It is curious that the learned Judge in the High Court, though
he held that the evidence of the experts was inadmissible,
proceeded nevertheless to discuss it and place some reliance
on it. The trial magistrate and the learned Sessions Judge
used this evidence to arrive at the finding that, as the letter
was typed on article A which had not reached Nagpur till the
end of December, 1946, obviously the letter was antedated,
Their conclusion based on inadmissible evidence has
therefore, to be ignored.'
(Emphasis supplied)
The above passage in that decision is the basis of the view taken
that the opinion of a typewriter expert is not admissible under the
Evidence Act and that it does not fall within the ambit of Section
45 of the Act. It is significant that this view taken by the High
Court in that case was not even contested in this court and
therefore, the decision in Hanumant proceeds on the concession
that the evidence of a typewriter expert is not admissible in
evidence under Section 45 of the Act. In our opinion, the decision
in Hanumant cannot be taken as deciding that point even
though on the basis of that observation the evidence of typewriter
expert was excluded as inadmissible. This question of law has,
therefore, to be answered without any further assistance being
available from the decision in Hanumant."
23. In her rejoinder, Ms. Mozumdar, learned Amicus Curiae has
submitted that the aspect of hearing halla by PW2 was clarified in the
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cross-examination that such statement was not made by her before the
Police. As regards the versions of PW3 and PW4 are concerned, it is
submitted that though their versions match with each other, the same are
hearsay evidence and no definite conclusion can be reached that the
appellant is involved.
24. In support of her submission, the learned Amicus has relied upon the
case of Darshan Singh Vs. State of Punjab reported in 2024 INSC 19
in which it has been laid down that statement not made in the examination
under Section 161 of the CrPC which were later improved cannot be relied
upon. The said case has also dealt with the aspect of circumstantial
evidence and the manner as to how the same is to be examined. She has
also referred to the case of Sujit Biswas Vs. State of Assam reported in
[2013] 3 SCR 830 on the importance of the examination under Section
313 of the CrPC. In the said case, the Hon'ble Supreme Court has also dealt
with the aspect of that suspicion cannot take the place of proof.
25. The rival submissions have been duly considered and the materials,
including the LCR placed before this Court has been carefully examined.
26. Admittedly, in the instant case, there is no eyewitness and the same
rest upon circumstantial evidence. The version of PW1 who is the informant
is that she heard regarding the incident from Basanti (PW2). She had also
deposed that the appellant had surrendered. In the cross-examination,
however, she had admitted of not stating before the Police regarding the
fact that she heard from Basanti.
27. As observed above, PW2, Basanti is a neighbour who had deposed of
hearing halla on the road that the appellant had killed the deceased.
Page No.# 11/19
Though in her cross-examination, she had stated that her statement was
not recorded by the Police, in the interest of justice, we have checked the
records and found that her statement was indeed recorded by the Police.
However, there was no statement of hearing any halla from the appellant
that he had killed the deceased. PW3 and PW4 are brothers, who are also
the brothers of the appellant. Though their versions are consistent with
each other, they are admittedly not eyewitnesses and simply hearsay
witnesses. PW5 is the Doctor who had conducted the post-mortem on the
deceased. The opinion given by him and the nature of injuries detected no
doubt would be consistent with the use of a branch of a tree or any heavy
object to make the assault on the head of the deceased. It is however
necessary in the trial to connect the involvement of the appellant with the
said offence of assaulting the deceased on his head by the said branch of a
tree which was seized.
28. PW6 and PW7 are seizure witnesses who had clarified that the Lathi
which was seized is also the branch of the tree. While the recovery of the
branch of the tree from the place of occurrence is not disputed, what is to
be seen is that the recovered weapon was not sent for any forensic
examination so as to connect the same with the appellant. No fingerprints
of the appellant was taken and matched with those found with the branch
of the tree.
29. It is also not the case of the prosecution that the said branch was
found stained with blood and that any serological test was done to connect
such stains with that of the deceased. So far as the statement under
Section 313 of the CrPC is concerned, we have seen that so far as question
No. 3 is concerned regarding the evidence of the PW10, I.O., only a vague
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question has been put regarding the investigation. We have found that
there is no specific question put on the aspect of the surrender of the
appellant before the I.O. on 02.01.2018 and having admitted the offence.
In absence of such material put before the accused appellant, we are of the
view that the examination under Section 313 was not in accordance with
law and thereby the appellant -accused was deprived of a reasonable
opportunity to defend himself. We have also noted that in spite of the
testimony of the I.O. that on the very next date of the date of occurrence,
the appellant had come to the Police Station and surrendered himself and
admitted his involvement, there is nothing on record to show that any
endeavour was made to get the confession of the appellant recorded in
accordance with law. The so-called admission made before the Police on
02.01.2018 is not a relevant evidence and is barred by Section 25 of the
Indian Evidence Act.
30. We have also noted that adjacent to the place of occurrence there
were other houses whose inmates were however not made witnesses in the
present case. We have also noticed that the Inquest Report was not proved
and it therefore remains vague as to what was found on the body of the
deceased, more particularly the nature of the injuries.
31. The Hon'ble Supreme Court in the landmark case of Sharad
Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC
116 has laid down the five golden principles to be followed in cases of
circumstantial evidence. For ready reference, the relevant portion is
extracted hereinbelow-
"151. Before discussing the cases relied upon by the High Court we
would like to cite a few decisions on the nature, character and
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essential proof required in a criminal case which rests on
circumstantial evidence alone. The most fundamental and basic
decision of this Court is Hanumant v. State of Madhya Pradesh, 1952
SCR 1091 . This case has been uniformly followed and applied by
this Court in a large number of later decisions up-to-date, for
instance, the cases of Tufail v. State of Uttar Pradesh, (1969) 3 SCC
198 and Ramgopal v State of Maharashtra, AIR 1972 SC 656. It may
be useful to extract what Mahajan, J. has laid down in Hanumant's
case (at pp. 345-46 of AIR) (supra) :
"It is well to remember that in cases where the evidence is of
a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance
be fully established and all the facts so established should be
consisent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and it must be such as to
show that within all human probability the act must have been
done by the accused."
7. 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 :
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(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 Sahebrao Bobade
v. State of Maharashtra, (1973) 2 SCC 793 where the following
observations were made :
"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.
Page No.# 15/19
8. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence."
32. By following the aforesaid principles, in the instant case we have
found that there are no concrete materials to link the appellant with the
offence and that it was the appellant alone who could be made responsible
for the offence in question. The connection of the appellant to the murder
weapon i.e., the branch of tree has not been established in accordance with
law. As noted above, no fingerprints were taken on the same branch of tree
which were matched with that of the appellant.
33. In the case of Darshan Singh (supra) which has been relied upon
by the learned Amicus, the following has been laid down in the context of
the discrepancy between a statement made under Section 161 of the CrPC
and thereafter in the dock:
"26. If the PWs had failed to mention in their statements u/s 161
CrPC about the involvement of an accused, their subsequent
statement before Court during trial regarding involvement of that
particular accused cannot be relied upon. Prosecution cannot seek
to prove a fact during trial through a witness which such witness
had not stated to police during investigation. The evidence of that
witness regarding the said improved fact is of no significance. ..."
34. In the instant case, we have seen that though PW2 who has been
termed as a star witness had deposed that she could hear halla made by
the appellant on the road that he had killed the deceased, such statement
was not made by her before the Police though her statement was recorded.
Similarly, though the PW9 who is a neighbour and a relative of the
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appellant had stated of hearing alarm, he had clarified that he thought that
the said alarm by the villagers was because of the New Year Celebration. In
any case he had heard about the incident only on the next morning and
had gone to the hospital.
35. As regards the examination under Section 313 of the CrPC, we have
already noticed that the implicating materials, more particularly the one
relating to the surrender and admission by the appellant was not put before
him and a very vague question was put to him against question No. 14
which reads as follows-
"Q14. PW10 SI Maheswar Sarmah had deposed in his evidence that
after completion of investigation, having found sufficient materials
against you, he submitted charge-sheet U/S 448/302 IPC against
you. What do you want to say?
Ans: I am innocent."
36. In the case of Sujit Biswas (supra) relied upon by the learned
Amicus Curiae, the importance of an examination under Section 313 CrPC
has been laid down which reads as follows:
"12. It is a settled legal proposition that in a criminal trial, the
purpose of examining the accused person under Section 313 Cr.P.C.,
is to meet the requirement of the principles of natural justice, i.e.
audi alterum partem. This means that the accused may be asked to
furnish some explanation as regards the incriminating circumstances
associated with him, and the court must take note of such
explanation. In a case of circumstantial evidence, the same is
essential to decide whether or not the chain of circumstances is
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complete. No matter how weak the evidence of the prosecution may
be, it is the duty of the court to examine the accused, and to seek
his explanation as regards the incriminating material that has
surfaced against him. The circumstances which are not put to the
accused in his examination under Section 313 Cr.P.C., cannot be
used against him and must be excluded from consideration. The
said statement cannot be treated as evidence within the meaning
of Section 3 of the Evidence Act, as the accused cannot be cross-
examined with reference to such statement."
In the said case, the aspect of suspicion vis-à-vis the requirement of
proof beyond all reasonable doubt in a criminal case has also been laid
down which reads as follows:
"6. 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
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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. (Vide: Hanumant
Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State
through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017;
and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
37. In view of the aforesaid facts and circumstances, we are of the
considered opinion that the materials in this case would not be sufficient to
come to a conclusion of guilt and that the same has been proved beyond all
reasonable doubt. We are of the opinion that the benefit of doubt is to be
given to the appellant. Accordingly, we set aside the impugned judgment
and order of conviction dated 28.01.2021 passed by the learned Sessions
Judge, Udalguri in Sessions Case No. 117/2018 (GR Case No. 05/18) under
Sections 302/448 Indian Penal Code. The appellant is accordingly directed
to be released forthwith unless he is wanted in any other case.
38. The appeal accordingly stands allowed.
39. Send back the LCRs.
40. For the valuable assistance rendered by Ms. RD Mozumdar, the
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learned Amicus Curiae, we record our appreciation and she would be
entitled to the prescribed fee.
JUDGE JUDGE
Comparing Assistant
