1. The present criminal appeal under Section 415, Bharatiya Nagarik Suraksha
Sanhita [BNNS], 2023 is directed against a Judgment dated 12.12.2024 and
an Order on Sentence dated 19.12.2024 passed by the Court of learned
Sessions Judge, Charaideo at Sonari in Sessions [S-C] Case no. 12/2014.
Three accused persons faced the trial in Sessions [S-C] Case no. 12/2014 and
they were : [i] Sanjib Paul [hereinafter referred to as 'A-1', at places, for easy
reference]; [ii] Sahabuddin Ahmed @ Jun Ahmed [hereinafter referred to as
'A-2' or 'the appellant no. 1', at places, for easy reference]; and [iii]
Rakibuddin Ahmed @ Bhaiti Ahmed [hereinafter referred to as 'A-3' of 'the
appellant no. 2', at places, for easy reference].
2. By the Judgment and the Order on Sentence, all the three accused persons
have been convicted for the offence under Section 302, Indian Penal Code
[IPC] read with Section 34, IPC. They have also been convicted for the
offence under Section 201, IPC read with Section 34, IPC. After hearing the
convicts on the point of sentence, the two appellants have been sentenced to
undergo imprisonment for life and to pay a fine of Rs. 10,000/- each, in
default of payment of fine each, to undergo simple imprisonment for another
three months each under Section 302, IPC read with Section 34, IPC. It has
been ordered that out of the period of sentence of life imprisonment, ten
years shall be rigorous imprisonment and rest of the sentence period, shall be
simple imprisonment. For the offence under Section 201, IPC read with
Section 34, IPC, the two appellants have been sentenced to undergo
imprisonment for three years. It has been ordered that both the sentences
shall run concurrently.
3. We have heard Mr. P. Kataki, learned counsel for the appellants and Ms. B.
Bhuyan, learned Senior Counsel & Additional Public Prosecutor, Assam
assisted by Ms. P. Das, learned counsel for the respondent State.
4. Mr. Kataki, learned counsel appearing for the two appellants has submitted
that in order to bring home the charges against the two appellants, A-2 and
A-3 and the other accused, A-1, the prosecution side examined twenty-one
nos. of witnesses and exhibited seventeen nos. of documents. It is apparent
from the prosecution evidence that the case of the prosecution is based on
circumstantial evidence. The learned Sessions Judge, Charaideo at Sonari
['the Trial Court', for short] in Paragraph 40 of the impugned Judgment,
enumerated the circumstances which, according to it, had been established
by the prosecution to hold that the chain of circumstances was complete to
bring home the charges against the appellants.
4.1. The Trial Court has placed reliance in a statement of a person, exhibited as
Ext.- P-8, by holding that the said statement recorded under Section 164,
Code of Criminal Procedure, 1973 ['the CrPC' or 'the Code', for short] is
admissible in evidence. Mr. Kataki has submitted that the learned Trial Court
had erred in holding that the circumstances indicated in Paragraph 40 of the
impugned Judgment had been established. He has submitted that the
conclusion of guilt drawn by the Trial Court was based on inadmissible
evidence. Moreover, the statement of the person recorded under Section 164,
CrPC cannot be made admissible on the premise that the person had died
during the pendency of the trial. The rule of evidence contained in Section 33
of the Evidence Act requires that the adverse party should have the right and
the opportunity to cross-examine such a witness.
4.2. It is his further submission that the Trial Court relied on the testimony of a
nos. of witnesses in clear ignorance of the prohibition contained in Section 25
and Section 26 of the Evidence Act. There was no discovery on the basis of
any disclosure statement and as such, Section 27 of the Evidence Act is
clearly not applicable in the case in hand. He has, thus, submitted that the
Judgment and Order on conviction and sentence passed against the two
appellants is unsustainable in law.
5. The learned Additional Public Prosecutor appearing for the State has
supported the Judgment and Order on conviction and sentence passed by the
Trial Court. It is submitted that there is evidence on record that the vehicle
where the deceased was taken prior to her alleged murder was seized during
the investigation. The informant - son of the deceased had testified about the
fact that the deceased and the accused, A-1 were last seen together leaving
for Guwahati. It was thereafter, the deceased met her death.
5.1. The fact that the deceased and the accused, A-1 was in a relationship is
borne out from the evidence on record and the appellants herein were hired
by the said accused, A-1 to assist him in order to kill the deceased.
Therefore, the two appellants are equally liable as they were partners in the
crime. Ms. Bhuyan has submitted that in the above fact situation obtaining in
the case, no interference is called for and the present appeal deserves to be
dismissed.
6. We have duly considered the submissions of the learned counsel for the
parties and have also gone through the evidence/materials available in the
case records of Sessions [S-C] Case no. 12/2024, in original.
7. In so far as the prosecution case is concerned, the First Information Report
[FIR] came to be lodged before the Officer In-Charge, Sonari Police Station
by one Ananta Gowala [P.W.9] on 04.09.2008. The informant, Ananta Gowala
in the FIR had inter-alia alleged that on 23.08.2008, his mother, Jonaki
Gowala left their home in order to go to the house of the accused, A-1, a
resident of Ward no. 9, Sonari Nagar. The informant mentioned that while
leaving, his mother informed him that she was going to Guwahati with A-1 for
some works. It was mentioned that Jonaki Gowala had been working as a
house-help in the house of A-1 for a period of time and it was well-known
among the neighbours that Jonaki Gowala had an illicit relationship with A-1.
The informant further mentioned that when the illicit relationship between
the two came to light, A-1 cajoled Jonaki Gowala to keep the affair secret. In
the FIR, it was further mentioned that when the informant on 03.09.2008
went to meet A-1 to enquire about his mother, A-1 abused him and drove
him out. The informant further mentioned that he came to know that his
mother confided before one Chittaranjan Dasgupta, a senior resident of their
village, that A-1 had been trying to kill her. Stating so, the informant
suspected that A-1 had killed his mother somewhere. In the FIR, a
description of Jonaki Gowala was given. It was specifically mentioned that the
name of the accused, A-1 was written in black ink on one hand of Jonaki
Gowala and 'Sri Krishna' was written on her other hand.
8. On receipt of the FIR, the Officer In-Charge, Sonari Police Station registered
the same as Sonari Police Station Case no. 194/2008 under Section 302 and
Section 201, IPC on 04.09.2008 and entrusted the investigation to one Abidur
Rahman, Sub-Inspector of Police [P.W.21] to take up the investigation of the
case.
9. During the course of investigation, the Investigating Officer [I.O.] [P.W.21]
made seizures of a number of articles/objects by preparing Seizure Lists and
recorded the statements of witnesses under Section 161, CrPC. The I.O.
[P.W.21] also recorded the statement of Chittranjan Dasgupta under Section
164, CrPC on 30.10.2008. After completing investigation into the case, a
charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 204/2008
came to be laid on 26.12.2008 finding a prima facie case against the three
accused persons, mentioned hereinabove, for committing the offences under
Section 302, IPC and Section 201, IPC read with Section 34, IPC.
10. During the course of the trial, the following witnesses were examined by the
prosecution side as prosecution witnesses, apart from one witness examined
by the Court as court witness, :-
11. At this juncture, it is relevant to mention about few relevant events which
preceded the institution of the FIR on 04.09.2008, and which were
undertaken during the course of investigation. The events which preceded
institution of the FIR can be noticed from the testimony of the I.O., who
deposed as P.W.21 in the trial, along with few other prosecution witnesses,
who would be referred at the appropriate places.
12. At about 07-00 a.m. on 29.08.2008, one Haren Tanti [P.W.3], a resident of
Aideo Pukhuri and the then Secretary of the Village Defence Party [VDP] of
the concerned area, submitted an application at Sonari Police Station stating
that one deadbody of a female was found in a drain [nola] of Aideo Pukhuri
Tea Estate. In his testimony, P.W.3 deposed that as he was the VDP
Secretary, people informed him that one deadbody of a female was found in
a drain of their Tea Estate. Accordingly, he [P.W.3] informed the Police. On
receipt of the application from P.W.3, the Officer In-Charge, Sonari Police
Station registered a case being U.D. Case no. 27/2008. The investigation of
U.D. Case no. 27/2008 was entrusted to P.W.21.
13. On being so entrusted, P.W.21 proceeded to the place of occurrence, that is,
the drain of Aideo Pukhuri Tea Estate. Going there, P.W.21 found a deadbody
in a drain and he noticed that the lower part of the body was in a
decomposed state. After recovery of the deadbody from the drain, inquest
proceeding was conducted at Section no. 06 of the Aideo Pukhuri Tea Estate
itself by an Executive Magistrate, Charaideo in reference to Sonari Police
Station U.D. Case no. 27/2008. After conducting the inquest proceeding, an
Inquest Report [Ext.-P-3] was prepared wherein it was inter-alia recorded
that the deadbody was found swollen with white coloured worms in the whole
body. It was reported that the skull of the head was with no skin and flesh.
In the right forearm of the deceased, there was a tattoo, 'Sri Krishna' and in
the left forearm, there was another tattoo, 'Sanjib'. It was further recorded
that no external injury could be traced. To find out about the actual cause of
death of the deceased, the Executive Magistrate, Sonari who held the inquest
proceeding, advised the Officer In-Charge, Sonari Police Station to take the
deadbody to the nearest Civil Hospital for post-mortem examination.
14. A sketch-map of the place of occurrence was prepared by the I.O. [P.W.21]
and the same exhibited as Ext.-P-6. The deadbody so recovered, was
dispatched to Sonari Civil Hospital on 29.08.2008, in reference to Sonari
Police Station Case U.D. Case no. 27/2008. The post-mortem examination on
the deadbody of the deceased was performed at Sonari Civil Hospital on
29.08.2008 by Dr. Budhin Saikia, Senior Medical & Health Officer, Sonari Civil
Hospital [P.W.19].
15. In his testimony, P.W.19 deposed that after conducting the post-mortem
examination on the deadbody of one unknown female, he recorded the
following findings in the Post-Mortem Examination [PME] Report [Ext.-P-5] :-
1. Walls, ribs and cartilages : Ribs intact.
2. Pleurae : Process of decomposed.
3. Larnyx and trachea : Process of decomposed.
4. Right lung : Process of decomposed.
5. Left lung : Process of decomposed.
6. Pericardium : Process of decomposed.
7. Heart : Swollen.
8. Vessels : Process of decomposed.
Abdomen :
1. Walls : Process of decomposed.
2. Peritoneum : Process of decomposed.
3. Mouth pharynx, oesophagus : As per column no. 1.
4. Stomach and its contents : Process of decomposed.
5. Small intestine and its contents : Process of decomposed.
6. Large intestine and its content : Process of decomposed.
7. Liver : Swollen.
8. Spleen : Swollen.
9. Kidneys : Swollen.
10. Bladder : Swollen.
11. Organs of genitalia, external and internal : As per column no. 1
Muscles, bones and joints :
1. Injury : As per column no. 1
2. Disease or deformity : As per column no. 1.
3. Fracture : As per column no. 1.
4. Dislocation : As per column no. 1.
In the PME Report [Ext.-P-5], the Autopsy Doctor, P.W.19 had further
recorded that the deadbody of the female was decomposed with full of
maggots. The deadbody had exposed skull bones and facial bones. Incisors
and premolars teeth from both jaws could not be seen. Uterus found absent.
16. P.W.19, the Autopsy Doctor testified that viscera [stomach] in one bottle and
kidney & liver were preserved in another bottle. In the PME Report [Ext.-P-5],
P.W.19 opined the cause of death could not be ascertained and therefore,
viscera was sent for forensic examination to ascertain the cause of death.
17. It was thereafter, on 04.09.2008, Ananta Gowala [P.W.9] lodged the FIR on
receipt of which Sonari Police Station Case no. 194/2008 was registered, as
mentioned above. The statement of the informant, Ananta Gowala [P.W.9]
was recorded by the I.O. [P.W.21] in the Police Station and one colour
photograph of the deceased, Jonaki Gowala as submitted by P.W.9, was
seized vide a Seizure List, Ext.- P.-7. The colour photograph seized vide
Seizure List, Ext.-P-7 was exhibited before the Court as Material Object no. 1
by the I.O. [P.W.21].
18. The I.O. [P.W.21] testified that after interrogating the witnesses and during
the course of investigation, he found that the deceased, Jonaki Gowala used
to work in the house of the accused, A-1 and he also found involvement of A-
1 in the incident. The accused, A-1 was apprehended by the I.O. on
05.09.2008. When he interrogated the accused, A-1, A-1 disclosed about
involvement of the present two appellants, A-2 and A-3. The I.O. [P.W.21]
further testified that as per A-1, both the present appellants assisted him to
kill the deceased, Jonaki Gowala. According to the I.O. [P.W.21], on
23.08.2008, all three of them took a vehicle and met Jonaki Gowala at a
place and finally, they killed Jonaki Gowala by tying a plastic rope around her
neck. The I.O. [P.W.21] testified that it was disclosed to him that the accused
persons threw the plastic rope inside Joboka Tea Estate and the deadbody
was thrown in a drain of Aideo Pukhuri area. I.O. [P.W.21] stated to have
seized a plastic rope, on being shown by the accused, A-1 and he exhibited a
Seizure List, Ext.-P-2 in that connection. A sketch-map of the area at Joboka
Bagan Chariali was prepared and exhibited as Ext.-P-10. On 06.09.2008, in
between 01-00 a.m. to 02-00 a.m., both the present appellants were
apprehended and brought to the Police Station.
19. In the course of the investigation, one scooter [Vespa make] along with the
relevant vehicular documents and one TATA Ace vehicle along with the
relevant vehicular documents were seized vide Seizure Lists - Ext.-P-11, Ext.-
P-3 and Ext.-P-4 - respectively.
20. The two bottles containing the viscera [stomach] in one and kidney & liver in
the other respectively, preserved by the Autopsy Doctor, were forwarded by
the I.O. [P.W.21] to the Forensic Science Laboratory [FSL], Assam at
Guwahati for examination. After examination, the Scientific Officer,
Toxicology Division, Forensic Science Laboratory [FSL], Assam gave a Report
on 03.10.2008 in reference to U.D. Case no. 27/2008 to the I.O. and the I.O.
[P.W.21] exhibited the said FSL Report as Ext.-P-16. In the FSL Report, it was
reported that no traces of poison was found in the stomach, liver and kidney.
21. During the course of investigation, the I.O. [P.W.21] recorded the statement
of Chittaranjan Dasgupta by forwarding him to the Court of Sub-Divisional
Judicial Magistrate [M] at Sonari on 30.10.2008. The statement of
Chittaranjan Dasgupta was recorded by the learned SDJM, Charaideo on
30.10.2008 and the said statement was exhibited as Ext.-P-8 by the I.O.
[P.W.21]. A sketch-map of the house of the deceased was prepared and
exhibited as Ext.-P-9 by the I.O. [P.W.21]
22. As per the testimony of the I.O. [P.W.21], finding sufficient materials against
the three accused persons, he arrested all three of them and forwarded them
to the Court on 06.09.2008. The Arrest Memo and Forwarding Reports were
exhibited as Ext.-P-12, Ext.-P-13, Ext.-P-14 and Ext.-P-15. After going
through the statements of the witnesses and finding sufficient materials
against the three accused persons including the two appellants, the Charge-
Sheet [Ext.-P-17] was submitted.
23. The learned Trial Court in Paragraph 40 of the impugned Judgment, had
found and recorded the following circumstances, which have been found
established by the prosecution, :-
i. Jonaki Gowala used to work in the house of accused, A-1 [P.W.5,
P.W.6, P.W.9 and P.W.20, and Exhibit-P-8].
ii. There was a love affair between Jonaki Gowala and accused, A-
1. [P.W.5, P.W.6, P.W.9 and Exhibit-P-8].
iii. Accused A-1 used to make sex with Jonaki Gowala with the
promise to marry her. [Exhibit-P-8 and P.W.21].
iv. Jonaki Gowala got pregnant and accused A-1 used to get the
pregnancy aborted. [P.W.21 and Exhibit-P-8]
v. Jonaki Gowala persistently urged accused A-1 to marry her;
however, accused A-1 refused to comply. [P.W.21].
vi. Jonaki Gowala used to take advantage like extracting money
from A-1. [P.W.21].
vii. The illicit loveaffair between Jonaki Gowala and accused A-1
became public [P.W.9, P.W.21 and Exhibit-P-8].
viii. Accused A-1 caused abortion of Jonaki Gowala. [P.W.9 and
P.W.21].
ix. Accused A-1 disclosed the matter with accused A-2. [P.W.21].
x. Accused A-2 advised A-1 to kill Jonaki Gowala and also to take
help of another boy [A-3]. [P.W.21].
xi. Accused A-2 hired a TATA Ace vehicle. [Exhibit-P-3].
xii. Jonaki Gowala, A-1 and A-3 went by TATA Ace vehicle on
23.08.2008. [P.W.21 and Exhibit-P-8].
xiii. Accused A-2 followed the TATA Ace by riding a Vespa scooter.
[Exhibit-P-11].
xiv. Jonaki Gowala was killed by a rope at Joboka Tea Estate by all
the accused persons. [Exhibit-P-2 and Exhibit-P-10].
xv. All the accused persons took the deadbody and threw in a nala at
Aideo Pukhuri Tea Estate. [Exhibit-P-4].
xvi. The deadbody was recovered from Aideo Pukhuri Tea Estate.
[P.W.3 and P.W.21].
xvii. The deadbody of Jonaki Gowala was identified by P.W.9,
P.W.20, P.W.21 and Chittaranjan Dasgupta vide Exhibit-P-8].
24. On the basis of the above circumstances, the Trial Court has returned the
finding of guilt of committing murder of Jonaki Gowala pointed against three
accused persons, A-1, A-2 [the appellant no. 1] and A-3 [the appellant no. 2].
25. The Trial Court had also found the statement of Chittranjan Dasgupta [not a
witness in the trial] recorded under Section 164, CrPC and exhibited as Ext.-
P-8 as relevant and admissible in evidence. As the prosecution had proved
that Chittaranja Dasgupa had expired, the Trial Court has observed that the
said fact would be admissible under Section 104 of the Evidence Act. It is not
in dispute and also as testified by the Court witness, C.W.1 that Chittranjan
Dasgupta passed away on 17.11.2011. The Trial Court proceeded to accept
the statement, Ext.-P-8 as relevant and admissible on the basis of the rule of
evidence contained in Section 33 of the Evidence Act.
26. Before entering into any discussion as regards the relevancy and admissibility
of the statement of Chittranjan Dasgupta [since deceased and not a witness
in the trial], we have looked into the contents of the same. Upon perusal, we
find that in the said statement, there is not even a whisper, not to speak of
any allegation of fact, against the present two appellants. In the above view
of the matter, it is apposite to find out whether there can be any relevancy of
the statement, Ext.-P-8 and whether the contents of the said statement, Ext.-
P-8 can be admitted into evidence on the basis of the rule of evidence
embedded in Section 33 of the Evidence Act.
27. Section 33 of the Evidence Act reads as under :-
33. Relevancy of certain evidence for proving, in subsequent
proceeding, the truth of facts therein stated. -
Evidence given by a witness in a judicial proceeding, or before any
person authorised by law to take it, is relevant for the purpose of
proving, in a subsequent judicial proceeding, or in a later stage of the
same judicial proceeding, the truth of the facts which it states, when the
witness is dead or cannot be found, or is incapable of giving evidence,
or is kept out of the way by the adverse party, or if his presence cannot
be obtained without an amount of delay or expense which, under the
circumstances of the case, the Court considers unreasonable :
Provided -
that the proceeding was between the same parties or their
representatives in interest;
that the adverse party in the first proceeding had the right and
opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in
the second proceeding.
Explanation.- A criminal trial or inquiry shall be deemed to be a
proceeding between the prosecutor and the accused within the meaning
of this section.
28. Under Section 33 of the Evidence Act, the evidence given by a witness in a
judicial proceeding or before any person authorised by law to take it, as
admissible for the purpose of proving, in a subsequent proceeding or in a
later stage of the same proceeding, the truth of the facts which it states, in
its evidence given in earlier judicial proceeding or earlier stage of the same
judicial proceeding; but in the proviso to Section 33, there are three pre-
requisites for making the said evidence admissible in subsequent proceeding
or at later stage of the same proceeding and they are - [i] the proceeding
was between the same parties or their representatives in interest; [ii] the
adverse party in the first proceeding had the right and opportunity to cross-
examine; and [iii] the questions in issue were substantially the same in the
first as in the second proceeding. The Explanation to Section 33 states that a
criminal trial or inquiry shall be deemed to be a proceeding between the
prosecutor and the accused within the meaning of Section 33.
29. From the rule of evidence embedded in Section 33 of the Evidence Act, it is
clearly evident that one of the essential pre-requisites is that the adverse
party must have both the right and the opportunity of cross-examining the
witness. At the stage of recording statement, Ext.-P-8, the defence neither
had the right nor had the opportunity to cross-examine the person named
Chittaranjan Dasgupta, who subsequently died on 17.11.2011. The recoding
of the statement of a person under Section 164, CrPC is at the stage of
investigation and the provisions of Section 164, CrPC does not provide for any
right or opportunity to an accused to cross-examine the witness at the stage
of investigation. Therefore, the finding of the Trial court recording relevancy
of the statement, Ext.-P-8 is not acceptable. As the appellants herein neither
had the right nor had the opportunity to cross-examine the person named
Chittaranjan Dasgupta who later on expired, the statement exhibited by the
prosecution as Ext.- P-8 cannot be read into evidence as it is inadmissible in
law.
30. It is now turn to have a look at the testimony of other prosecution witnesses.
31. P.W.1 though knew the deceased and the accused, A-1, did not know the
informant and the present two appellants. As regards the incident of death of
Jonaki Gowala, P.W.1 stated that he did not know about the incident.
32. P.W.2 knew the deceased and two of the accused persons, but did not know
the informant. P.W.2 did not depose anything relevant about the incident.
33. It was on the basis of the information of P.W.3, the then VDP Secretary of
the concerned area, U.D. Case no. 27/2008 was registered on 29.08.2008. In
his testimony, P.W.3 stated that after giving information to Police by him,
Police personnel came and found the deadbody of a female. As regards the
accused persons committing the crime, P.W.3's testimony was hearsay. P.W.3
stated that he did not see the deadbody closely. Through P.W.3 as one of the
two seizure witnesses in Seizure List, Ext.-P-2, M.R. no. 130/2008 one plastic
rope of about two metres length was shown to be seized on 06.09.2008. But,
Seizure List, Ext.-P-2 was not exhibited by P.W.3.
34. P.W.4 did not know the informant. As regards the incident of death of Jonaki
Gowala, his testimony was hearsay in nature as he stated that he did not
have any personal knowledge.
35. P.W.5 knew the informant and two of the accused persons apart from the
deceased. P.W.5 stated that he knew that the deceased used to work at the
house of A-1 and A-1 was a teacher. Regarding illicit relationship between the
deceased and A-1, the testimony of P.W.5 was hearsay in nature. P.W.5
further stated that he heard that the deadbody of the deceased was found
out under a culvert inside Aideo Tea Estate and later on, he heard that the
accused persons had killed her. He further stated that he did not go to the
place of occurrence and did not go to see the deadbody. He further stated
that he came to know about the incident from television news.
36. P.W.6 was a reporter, who worked for the newspaper, 'Dainik Janambhumi'
at the relevant time. Having heard about the incident, he went to the Police
Station. P.W.6 stated that at the Police Station he heard that the Officer In-
Charge interrogated the accused persons and the accused persons confessed
their guilt. He further heard that the accused persons conspired to kill the
deceased and kept the deadbody at Aideo Pukhuri Tea Estate. P.W.6
admitted that he did not know how and when the incident had occurred and
he did not talk to the accused persons.
37. P.W.7 was another reporter from the newspaper, 'Amar Asom'. Like P.W.6,
P.W.7 having heard about the news, went to the Police Station. Going there,
he found that the accused, A-1 confessed to have murdered the deceased,
who used to work in his house. As regards illicit relationship, P.W.7's
testimony was hearsay in nature. P.W.7 further stated that he knew about
the incident only from the Police personnel and did not know since when the
deceased was missing.
38. A person named Ankit Kumar was examined by the prosecution side on two
occasions, as P.W.8 and P.W.11, on 30.03.2021 and 02.01.2023 respectively.
On both the occasions, Ankit Kumar as P.W.8 and P.W.11, testified that he
had no knowledge about the incident and he neither knew the informant nor
the deceased nor the accused persons.
39. P.W.9 was the informant and the son of the deceased. In his evidence-in-
chief, P.W.9 deposed that the incident took place in the year 2008 and during
the relevant time, his mother used to work in the house of A-1. He heard that
his mother had a love affair with A-1 and A-1 used to take his mother with
him whenever he went outside. P.W.9 stated that one day, A-1 took his
mother to Guwahati. As his mother did not return home even after one day,
P.W.9 went to the house of A-1 searching for his mother. Then, A-1 told him
that he had not taken P.W.9-informant's mother anywhere with him. P.W.9
further stated that a person named Niranjan Das [not a witness] told him that
his mother told Niranjan Das that A-1 had threatened her with death. P.W.9
further stated that Niranjan Das had expired. As P.W.9 failed to trace his
mother, he lodged the FIR. It was after three days of lodging the FIR, the
deadbody of his mother was found under a culvert at Aideobari. But, he could
not see his mother's deadbody. P.W.9 further stated that his maternal uncle
[P.W.20] identified the deadbody. P.W.9 deposed that at the time of the
incident, he was a student of Class-V. P.W.9 exhibited the FIR as Ext.-P-1.
39.1. During cross-examination, P.W.9 stated that he lodged the FIR after recovery
of the deadbody and his mother had gone to Guwahati four days prior to
recovery of the deadbody. He and his mother were only members in their
family. At the time of leaving, his mother told him that she was going to
Guwahati with A-1. P.W.9 stated that he lodged the FIR on the advice of
Niranjan Das [since deceased] and subsequently, he came to know that A-1
had killed his mother which he mentioned in the FIR. He suspected A-1 to be
the person behind the death of his mother.
40. P.W.10, Mintu Gogoi did not know the informant, the deceased and the
accused persons. In his evidence-in-chief, P.W.10 stated that on a particular
day, he saw a gathering beside a drain near Aideo Pukhuri Tea Estate. Seeing
the gathering, he went there and saw a deadbody of a woman lying there.
P.W.10 stated that the deadbody was not in a condition to be identified and
he noticed a pair of sandals lying beside the deadbody. Police found a plastic
rope at the said spot. P.W.10 stated that Police seized the pair of sandals and
took his signature on the Seizure List, Ext.-P-2. He identified his signature in
Ext.-P-2 as Ext.-P-2[1]. P.W.10 also stated that his signature was taken in the
Inquest Report, Ext.-P-3 and he identified his signature therein as Ext.-P-
3[1].
40.1. In cross-examination, P.W.10 stated that the Police personnel were present
when he went to the place of occurrence and he did not know wherefrom the
Police had brought the rope.
41. It is relevant to note that the Seizure List, Ext.-P-2 [M.R. no. 130/2008] was
shown to have been prepared on 06.09.2008 wherein P.W.10 had been
shown as one of the two seizure witnesses.
42. P.W.11 did not know the informant, the deceased and the accused persons
and testified that he did not know anything about the incident.
43. P.W.12 was a cameraman of a television channel, NE TV and at the relevant
time, he was a reporter of another television channel, 'News Live'. In his
testimony, P.W.12 stated that he did not know the informant and the accused
persons. Hearing the news that a woman had been murdered, he went to
the Police Station and going there, he found that three persons were kept
apprehended at the Police Station and the accused persons admitted that
they had murdered and threw the deadbody at Aideo Puhkuri Tea Estate.
P.W.12 stated that the Police took them Aideo Puhkuri Tea Estate where the
accused persons showed them the deadbody in a drain and the Police
recovered the deadbody and took their statements.
43.1. During cross-examination, P.W.12 stated that they recorded videos but did
not hand it over to the Police. He admitted that they were not present there
when the Police interrogated the accused persons and he had deposed on the
basis of what A-1 stated before the Police in their presence.
44. P.W.13 was another journalist who neither knew the informant nor the
accused persons. As regards the incident which occurred in the year 2008,
P.W.13 stated that on receipt of information from the Police Station that a
murder had taken place, he along with four-five other reporters went to the
Police Station. At the Police Station, they found that A-1 had confessed to
have committed the murder before the Police and they recorded the same
through their cameras. A-1 stated that he committed the murder with the
help of A-2 and A-3 and thereafter, threw the deadbody at Aideo Puhkuri Tea
Estate. P.W.13 stated that he did not go at the time of recovery of the
deadbody and the deadbody was recovered by the Police with the help of the
VDP.
44.1. During cross-examination, P.W.13 stated that he did not record anything with
camera and denied a suggestion that accused did not confess his guilt in his
presence.
45. P.W.14 stated that he was an ambulance driver and he used to drive
ambulance in 2008. P.W.14 stated that he did not know anything about the
incident and Police did not question him. The prosecution thereafter, declared
P.W.14 as hostile and sought permission from the court to cross-examine
P.W.14. During cross-examination of P.W.14 by the prosecution, P.W.14
denied to have made statements which the prosecution stated to have been
by P.W.14 in his statement recorded under Section 161, CrPC. The
prosecution had, however, did not bring any previous statement of P.W.14
recorded during the stage of investigation on record.
45.1. During cross-examination by the defence, P.W.14 stated that Police did not
meet him in connection with the incident and he did not know anything about
the murder.
46. P.W.15 stated that he did not know the informant and the deceased. In this
testimony, P.W.15 stated that he had a TATA Ace vehicle which he used to
rent out on hire. At the time of the incident around fifteen years ago, he
engaged a person to drive the said vehicle due to sickness of his regular
driver. P.W.15 failed to recall the name of the person who was engaged by
him to drive the vehicle at that time. P.W.15 stated that he came to know
later on that the vehicle met with an accident and he was informed that the
person who had hired the vehicle had committed a murder. When P.W.15
made a search, he found the vehicle in the house of a person. He stated to
have heard that a murder was committed inside his vehicle and the deadbody
was also carried in that vehicle. P.W.15 stated that he did not know who was
driving the vehicle and who hired it. He failed to recall the name of the driver
of the vehicle at the time of commission of murder. P.W.15 exhibited a
Seizure List, Ext.-P-3 by which his vehicle was seized by Police.
46.1. In cross-examination, P.W.15 stated that the vehicle was seized from his
house. P.W.15 stated that he did not know the name of the person who had
given him the information and he had no personal knowledge about the
incident.
47. P.W.16 is the wife of P.W.15. P.W.16 stated that the vehicle [TATA Ace] was
seized in connection with a murder case but she did not know who had
committed the murder. P.W.16 exhibited the Seizure List, Ext.-P-3 and her
signature therein as Ext.-P-3[2].
47.1. Like P.W.15, P.W.16 reiterated in her cross-examination that the vehicle was
seized by the Police from her house.
48. P.W.17 knew the informant as well as the accused persons. Regarding the
incident occurred in the year 2008, P.W.17 deposed that Police asked him to
accompany them and accordingly, he went with the Police personnel to
Jaboka Tea Estate. The appellants were also present in the Police vehicle and
they confessed that they along with the accused, A-1 had killed the deceased
and the accused persons showed the place where they had killed the
deceased. P.W.17 further deposed that the appellants stated that after killing
the deceased, they took the deadbody to a nearby tea garden at Ratanpur
and threw the deadbody in a drain. Police prepared a Sketch-Map of the
place where the deceased was killed and took his signature in the Sketch-
Map. P.W.17 exhibited the Sketch-Map, Ext.-P-4. P.W.17 further testified that
the appellants also confessed that they had killed the deceased with a rope.
48.1. During cross-examination, P.W.17 stated that Police personnel met him at
Banfera and told him about the incident and asked him to accompany them.
P.W.17 failed to recall in which section of Jobkoka Tea Estate the incident
had occurred. He denied a suggestion that he deposed falsely that the
appellants showed the place of occurrence. He further stated that the Police
personnel did not take them to the place where the deadbody was thrown.
49. P.W.18 deposed that he did not know the informant and the accused persons
other than A-2. P.W.18 did not also know the deceased. P.W.18 stated that in
the year 2008, he was working as a journalist. As regards the incident,
P.W.18 stated that he along with few other persons went to the Police Station
to gather information regarding the murder of the deceased. When they
reached the Police Station, they saw that the Police personnel were
interrogating one person named 'Paul/Maal' regarding the incident. He stated
to have heard that the said person confessed his guilt before the Police but
he could not identify the person in the court.
50. P.W.20 is a maternal uncle of the informant-P.W.9 and was an younger
brother of the deceased. Though P.W.20 knew A-2, he did not recall anything
about the other accused persons. As regards the incident, P.W.20 testified
that his elder sister [deceased] was a regular worker at the house of the
accused, A-1 prior to her death. Prior to the incident, P.W.20 asked his
nephew, P.W.9-informant whereabouts of his mother and in reply, P.W.9-
informant told him that his mother went to Guwahati along with A-1 but did
not tell the reason for her going to Guwahati. P.W.20 further stated that the
elder brother of the accused, A-1 told him that A-1 was not at home for
three-four days. Then, P.W.20 along with P.W.9-informant searched for his
elder sister everywhere but they could not find any flue about her. P.W.20
further deposed that he heard from one sweeper boy that he brought one
deadbody from Aideo Pukhuri to the Police Station as per instruction of the
Police. Then, he suspecting that the recovered deadbody might be of his
elder sister immediately went to the Police Station but could not find the
deadbody in the Police Station. The Police personnel asked him whether there
was any tattoo marks on the hands of Jonaki Gowala and he replied
positively. From that point of time, P.W.20 suspected A-1 to be the person
behind the killing of his elder sister.
50.1. When cross-examined, P.W.20 stated that though he used to see A-2 daily in
the Sonari Town but he did not know how A-2 was linked with the case.
P.W.20 stated that he did not see the two appellants at the time of the
incident in the Police Station. He also did not see the deadbody of his elder
sister either in the Police Station or thereafter. P.W.20 was also not aware
who had done the cremation of the deadbody. P.W.20 further stated that
neither he nor P.W.9-infomant made any report to Police regarding missing of
the deceased as they both were searching for her. P.W.20 also denied
suggestions that Jonaki Gowala [deceased] was a regular worker in the house
of accused, A-1; and that he did not state before the Police that Jonaki
Gowala [deceased] was a regular worker at the house of A-1.
51. From the testimony of the prosecution witnesses - P.W.6, P.W.7, P.W.12,
P.W.13 and P.W.18 - it has emerged that at the relevant point of time, they
were serving as journalists/reporters for newspapers/television channels, etc.
All of them testified that after hearing the news about recovery of a
deadbody of a woman, they went to the Police Station. Going to the Police
Station, they found that the Police personnel were interrogating the persons
who were suspected to have committed the murder of Jonaki Gowala and
according to their testimony, they heard the accused persons of confessing
their guilt before the Police personnel at the Police Station.
52. It is settled that formal arrest of an accused is not sine qua non to bring into
operation the rules of evidence embodied in Section 25, Section 26 and
Section 27 of the Evidence Act. As per Section 25 of the Evidence Act, no
confession made to a Police Officer shall be proved as against a person
accused of any offence. Section 26 of the Evidence Act has provided that no
confession made by any person while he is in the custody of a Police Officer,
unless it be made in the immediate presence of a Magistrate, shall be proved
as against such person. Section 27 of the Evidence Act is an exception to
Section 25 and Section 26 of the Evidence Act. It makes that part of the
statement which distinctly leads to discovery of any fact in consequence of an
information received from a person accused of an offence, in the custody of a
Police Officer, to the extent it distinctly relates to the fact thereby discovered,
admissible in evidence against the accused. The fact which is discovered as a
consequence of the information given is admissible in evidence.
53. The bar under Section 25 of the Evidence Act applies equally whether or not
the person against whom evidence is sought to be led in a criminal trial was
in custody at the time of making the confession. Further, for the ban to be
effective the person need not have been accused of an offence when he
made the confession. The reason is that the expression 'accused person' in
Section 24 and the expression 'a person accused of any offence' in Section 25
and Section 27 have the same connotation, and describe the person against
whom evidence is sought to be led in a criminal proceeding.
54. It has emerged from the testimony of I.O. [P.W.21] that the two appellants
were apprehended on 06.09.2008 and thereafter, they were taken to the
Police Station for custody. Even if the testimony of the afore-mentioned
prosecution witnesses - P.W.6, P.W.7, P.W.12, P.W.13 and P.W.18 -
regarding making of confession by the two appellants before the Police
personnel is accepted to be true, then also such confession is not admissible
in evidence because of the prohibitions contained in Section 25 and Section
26 of the Evidence Act.
55. The prosecution witness, P.W.10 testified to the effect that he was a witness
at the time when the deadbody of the deceased was found lying in a drain
near Aideo Pukhuri Tea Estate. P.W.10 further testified that on that day itself,
the Police personnel found a plastic rope and a pair of sandals beside the
deadbody, which was recovered from drain. P.W.10 further testified that he
did not know wherefrom the Police personnel had brought the rope. If this
part of testimony of P.W.10 is accepted, then the deadbody of the deceased
and the plastic rope were found at the same time at the same place, prior to
institution and registration of the FIR, on 04.09.2008. From the testimony of
the I.O. [P.W.21], it is clear that the deadbody was recovered on 29.08.2008
in connection with U.D. Case no. 27/2008. On the other hand, the Seizure
List, Ext.-P-2 whereby one plastic rope was seized, was prepared on
06.09.2008. As per the said Seizure List, Ext.-P-2, the plastic rope was
recovered on being led and showed by the accused, A-1 which was kept
concealed at Section no. 6, Aideo Pukhuri Tea Estate. Again from the
testimony of the I.O. [P.W.21], it can be found that he apprehended A-1 on
06.09.2008, which was much after recovery of the deadboy and the plastic
rope on 29.08.2008. The Seizure List, Ext.-P-2 bore signature of P.W.10.
Thus, the factum of recovery of the plastic rope has become clouded. When
recovery is made prior to information given by an accused, then the provision
of Section 27 of the Evidence Act is not applicable.
56. When we analyze the testimony of the prosecution witnesses - P.W.1, P.W.2,
P.W.3, P.W.4 and P.W.5 - we find that their testimony is in the nature of
hearsay. They did not know anything about the actual incident. Ankit Kumar
was brought twice by the prosecution to depose evidence and he deposed
twice as P.W.8 as well as P.W.11, testifying that he did not know anything
about the incident. The prosecution witness, P.W.14 was declared hostile by
the prosecution and even after his cross-examination by the prosecution with
the leave of the court, the prosecution could not elicit anything from him
against the present two appellants. The informant - P.W.9 who was the son
of the deceased, had not deposed anything against the present two
appellants. It can, at best, be gathered from the testimony of P.W.9 that it
was the accused, A-1 who was allegedly seen last with the deceased.
57. During the course of investigation, the I.O. [P.W.21] seized a TATA Ace
vehicle from the prosecution witness, P.W.15 by a Seizure List, Ext.-P-3.
P.W.15 was not aware about the person who hired the said vehicle during the
relevant time and was also not aware who was driving the vehicle during the
relevant time. But the vehicle was seized from his house itself by Police and
the said fact has been corroborated by his wife, P.W.16. Thus, the testimony
of P.W.15 and P.W.16 have nothing to connect the alleged homicidal death of
Jonaki Gowala with the present two appellants.
58. There is no iota of evidence on record to hold - [i] that the two appellants
herein were seen with the accused A-1 at any time; and/or [ii] that they were
seen together with the deceased at any point of time; and/or [iii] that they
were seen with A-1 and/or the deceased together at any point of time.
Therefore, there cannot be an occasion for the prosecution to bring in the last
seen theory qua the two appellants herein.
59. Out of the seventeen circumstances which the Trial Court appeared to have
held as established, the circumstances from no. [ix] to no. [xvii] have been
made relatable to the two appellants herein. On analysis of the evidence on
record including the testimony of the prosecution witnesses, we find that
none of those circumstances from no. [ix] to no. [xvii] can be held as
established by the prosecution by cogent, reliable and admissible evidence in
so far as against the two appellants are concerned.
60. It is settled that in a case based on circumstantial evidence, 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 that 'must be
proved'. In a criminal trial, suspicion no matter how strong, cannot and must
not be permitted to take place of proof 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 prosecution has the burden to cover the distance between `may
be true' and `must be true', by way of clear, cogent and unimpeachable
evidence before a verdict of guilt can be returned against an accused and this
burden never shift in view of Section 101 of the Evidence Act. Another golden
principles of criminal administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted.
61. On evaluation of the evidence on record led by the prosecution in this case,
we find that none of the circumstances to complete the chain of
circumstances for arriving at an irresistible conclusion that the two appellants
herein were behind the death of the deceased, has been established by clear,
cogent and reliable evidence. The prosecution has also not been able to
establish that the death of the deceased was a homicidal one. The reason
perhaps may be due to decomposed nature of the deadbody at the time of its
recovery, which was much after the actual death.
62. The offence defined in Section 201, IPC is attracted when one causes
disappearance of evidence of offence or gives false information to screen the
offender. The essential ingredients of the offence under Section 201, IPC are
as follows - [i] an offence has been committed; [ii] the accused knew or had
reason to believe that such offence has been committed; [iii] the accused
caused disappearance of the evidence thereof; [iv] give false information in
respect thereof; [v] knowing or having reasons to believe the same to be
false; and [vi] the accused did so with intention to screen the offender from
legal punishment.
63. In the light of the discussion made above and for the reasons recorded
therein, we are of the unhesitant view that the prosecution has failed to bring
home the charge of murder under Section 302, IPC in aid of Section 34, IPC
against the two appellants. When the evidence/materials available on record
are analysed qua the ingredients of the offence defined in Section 201, IPC,
we find lack of evidence/materials, much less sufficient evidence/materials, to
attract the said offence for roping in the two appellants.
64. Consequently, we find ourselves not in agreement with the finding of guilt
arrived at by the Trial Court on the basis of evidence/materials available on
record, discussed hereinabove. Having held that the prosecution has failed to
prove its case against the two appellants beyond all reasonable doubt by way
of clear, reliable and credible evidence, we find that the Judgment dated
12.12.2024 and the Order on sentence dated 19.12.2024 passed by the
learned Trial Court is not sustainable in law and the same is liable to be set
aside. It is accordingly set aside. Consequently, the instant criminal appeal
stands allowed.
65. The appellants are to be released from custody forthwith if their custody is
not required for any other case or purpose.
66. The records of the Trial Court are to be sent back forthwith.
67. We reiterate the direction by the Trial court for expeditious disbursement of
compensation to the victim, P.W.9 [the son of the victim], if not disbursed in
the meantime.
JUDGE JUDGE
Comparing Assistant
