Gauhati High Court
Page No.# 1/18 vs The State Of Assam on 18 September, 2025
Page No.# 1/18
GAHC010273562019
2025:GAU-AS:12850
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/114/2019
BIKASH DAS
S/O. LT. RAJMOHAN DAS
R/O. CHOWKIDING SASANPARA
P.S. DIBRUGARH
DIST. TINSUKIA
ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP
ASSAM.
------------
Advocate for : MR. A AHMED
AMICUS CURIAE
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HON'BLE THE CHIEF JUSTICE ASHUTOSH KUMAR
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Appellant : Mr. A. Ahmed, Amicus Curiae.
For the Respondents : Ms. B. Bhuyan, Senior Counsel.
Date of Hearing : 01.08.2025
Date of Judgment : 18.09.2025
Page No.# 2/18
JUDGMENT & ORDER (CAV)
A.D.Choudhury, J
1. The present appeal is filed against the judgment and order dated 07.06.2019, passed
by the learned Sessions Judge, Tinsukia, in Sessions Case No. 113(T)/2018, registered
under Sections 302/376 of IPC, corresponding to Mariani GRPS Case No. 14/2018,
whereby the appellant was convicted under Sections 302/376 of IPC and was sentenced
to undergo Rigorous Imprisonment for 10 (ten) years for committing the offence of rape
and to pay a fine of Rs. 50,000/- (Rupees Fifty thousand) and in default of payment of
fine, to undergo imprisonment for another period 6 (six) months and was also to undergo
imprisonment for life for committing the offence of murder and to pay a fine of Rs.
50,000/- and in default of payment of fine, to undergo imprisonment for another period
of 6 (six) months.
2. The prosecution's case in a nutshell is that on 11.07.2018, the deceased Lalima Devi
was heading to the State of Bihar by a train, and her son Jitendra Singh, purchased a
general ticket and took her to the coach which is meant for disabled persons in the
Avadh Assam Express. Her son had given her Rs. 700. The son of the deceased was
expecting a phone call from his mother till 3:00 pm, but, she never called him, and her
phone remained unanswered as well. Subsequently, on the same day, the Officer-in-
Charge of Mariani GRPS informed Jitendra Singh over the phone that his mother had
died. Upon receipt of the said information, Jitendra Singh and his younger brother
Bijendra Singh went to Mariani and witnessed the dead body of their mother. In this
regard, an FIR was lodged by SI Jitu Mipun, Sub-Inspector, Mariani GRPS, before the
Officer-in-Charge of Mariani GRPS and the same was registered as Mariani GRPS Case
No. 14/2018 under Sections 302/376/34 IPC. Later, the case was transferred to GRPS
Tinsukia, as the place of occurrence was outside the jurisdiction of Mariani GRPS, and it
was renumbered as Tinsukia GRPS Case No. 23/2018.
Page No.# 3/18
3. Accordingly, the investigation was initiated by the concerned Investigating Officer and
two persons, i.e., the appellant Bikash Das and the co-accused Bipin Pandey, were
arrested. During the period of investigation, both the accused were sent to the Court of
learned Judicial Magistrate, Jorhat, for recording their confessional statements. Though
the accused Bipin Pandey refused to make any confession, however, the accused Bikash
Das made a confessional statement before the concerned Magistrate admitting that on
11.07.2018 at about 09.:50 am, he boarded the Avadh Assam Train at Banipur Station,
Dibrugarh to Tinsukia and that when the train reached at Panitola TCP, the co-accused
Bipin Pandey boarded the train and accompanied Bikash Das in the coach, which was
meant for disabled persons and the appellant noticed the deceased, who was sitting alone
in the said coach. Thereafter, the appellant pounced upon the deceased and strangulated
her neck with a Gamocha and committed rape upon her. The appellant also stated before
the concerned Magistrate that after committing rape upon the deceased, he, along with
the co-accused, had dragged the deceased to the toilet and trussed her to the water outlet
pipe of the basin and that the co-accused had also committed rape upon the deceased and
snatched away one gold earring and jewellery from the deceased.
4. On completion of the Investigation, finding prima facie involvement of the accused
persons in the commission of offences, the Investigating Officer filed a charge-sheet
vide C.S. No. 7/2018 dated 10.10.2018 against the accused persons under Sections
376/302/34 IPC, to stand trial in the Court.
5. Thereafter, the learned Chief Judicial Magistrate, Tinsukia, committed the case to the
Court of the learned Sessions Judge, Tinsukia, for trial. After receiving the case record
from the committal Court, the case was registered as Sessions Case No.113 (T)/2018
under Sections 376/302 IPC.
6. Thereafter, the learned Sessions Judge, Tinsukia, framed formal charges against the
accused persons under Sections 302/376 IPC. The particulars of the above charges were
read over and explained to the accused persons, to which they pleaded not guilty and
claimed to be tried. Accordingly, the trial commenced.
Page No.# 4/18
7. The prosecution's case is based on circumstantial evidence. To bring home the charges
levelled against the accused persons, the prosecution side examined as many as 21
(twenty-one) witnesses. After completion of the prosecution evidence, the accused were
examined under Section 313 Cr.PC confronting them with all the incriminating
circumstances so that the accused could explain the same. The accused Bipin Pandey
adduced 9 (nine) witnesses in his defence, while the accused Bikash Das declined to
adduce any evidence in support of his defence.
8. Upon conclusion of the trial and on appreciation of the materials available on record,
the learned Trial Court opined that the prosecution had succeeded in establishing the
charges brought against the accused Bikash Das, beyond all reasonable doubt and
accordingly, convicted him in the manner as recorded hereinabove and that the accused
Bipin Pandey was found not guilty of any of the charges and he was acquitted from the
charges.
9. Heard Mr. A. Ahmed, learned Amicus Curiae for the appellant, and Ms. B. Bhuyan,
learned Senior counsel for the respondent.
10. Assailing the impugned judgment and order dated 07.06.2019, passed by the learned
Sessions Judge, Tinsukia, Mr. Bora, learned Senior counsel for the appellant, has argued
that, save and except the alleged disclosure statement and extrajudicial confession, there
is not even an iota of evidence against the accused appellant to prove the charges. The
learned counsel has also argued that, even the disclosure statement leading to the alleged
discovery of the Gamocha used in the commission of the offence is inadmissible in the
absence of any disclosure statement of the accused persons.
11. Mr. Ahmed, learned counsel further contends that the conviction is based on the alleged
extrajudicial confession; however, admittedly, such confessional statements were made
during police custody and, therefore, not admissible in terms of Section 25 and Section
26 of the Indian Evidence Act, 1872. It is further contended by Mr. Ahmed, learned
counsel, that the circumstances based on which the learned Trial Court convicted the
accused, do not even raise any suspicion or hypothesis of guilt of the accused. No chain
Page No.# 5/18
of evidence points guilt only towards the accused; rather, according to him, this is a case
of no evidence.
12. Per contra, Ms. Bhuyan, learned Senior counsel contends that the prosecution has been
able to prove beyond all reasonable doubt, the chain of conclusive circumstances, which
only points that it is the accused and none other who committed the offence and,
therefore, the learned Trial Court was correct in convicting the accused person and
sentencing him.
13. We have considered the arguments advanced at the Bar by the learned counsels for the
contesting parties. We have also carefully gone through the evidence available on record.
Since the basic arguments of the appellant's counsel are to the effect that the evidence
adduced by the prosecution side is wholly insufficient to establish the charges brought
against the accused beyond a reasonable doubt, we propose to briefly analyse the
evidence brought on record.
14. PW-1, Jitu Mipun, Sub-Inspector, Mariani GRPS, was the informant of the case, who
deposed that on the day of the incident, after receipt of the information by the concerned
OC, Mariani GRPS, he, along with the Officer in Charge, went to the coach for disabled
persons of Avadh Assam Express Train and recovered a female corpse. Thereafter, they
made a telephonic communication to the relatives of the recovered female corpse and,
Jitendra Singh, son of the deceased, stated that the name of the deceased was Lalima
Devi. Accordingly, an FIR was lodged before the Officer-in-Charge, Mariani GRPS. At
the time of the inquest, the SI, along with the two sons of the deceased were present.
Exhibit (Ext.)-2 is the Inquest Report.
During cross-examination, he deposed that the ejahar was drafted by him on the
dictation of his superior officers. He did not make any investigation in this case. He did
not call the relatives of the female corpse or the doctors, in this case. He further deposed
that, except for the filing of the ejahar, he did nothing in this case and also that he did
not notice any injury on the body of the deceased.
Page No.# 6/18
15. PW-2, Sanjay Singh, Sub-Inspector, Mariani RPF, is the seizure witness. He deposed
that after receiving information, he, along with ASI Subhan Hazarika and other GRP
Staff of Mariani, headed towards the coach and found a female corpse lying inside the
toilet of the said coach. After examining the body of the female corpse, the Railway
Doctor declared the body to be already dead. He also deposed that SI Biren Kalita seized
some articles, which belonged to the deceased, and accordingly, he prepared the seizure
lists, Exts.-3 & 4. Exts.-3(1) &4(1) are his signatures.
During cross-examination, he deposed that the interpolations and use of whitener in
Ext.4 were made before putting on his signature in the said Ext.4. The interpolation in
Ext.3 was made before putting on his signature. He did not know the contents of Ext.3.
16. PW-3, Suren Tanti, in his examination-in-chief, deposed that , one day at about 4 PM,
he, along with Mridul Saikia (PW-4) was waiting at the Mariani Railway Station for a
train to go to Amguri. At that moment, they saw a crowd at the Mariani GRPS, and
accordingly, they turned up there to see. On reaching there, they saw two persons inside
the said PS, and the O.C. of the said PS was interrogating the said persons. The two
persons admitted before the OC that they committed the offence. The accused persons
confessed their guilt in their presence.
During cross-examination, he deposed that the police did not record his statement,
though his signature was taken. He could not recollect the date on which he was
standing at Platform No. 1 of Mariani Railway Station. He further deposed that he would
not be able to identify the accused persons, if he gets to see them now.
17. PW-4, Mridul Saikia, deposed that on 11.07.2018, at about 5:00 -5:30 AM, he, along
with PW-3, went to Mariani Railway Station to catch the passenger train to Amguri. On
reaching the railway station, they saw a gathering of people at the said station. When
they proceeded towards the gathering, they saw that some police personnel were
interrogating two persons at the platform No. 1 of the railway station near the GRPS.
The said persons were answering "yes, yes" . He saw the two persons demonstrating
how they had committed the crime, and one of them had videotaped the scene.
Page No.# 7/18
During cross-examination, he deposed that the police did not record his statement. He
cannot accurately say whether the two persons acted in the said drama as per the
direction of the police. He did not know anything about the instant case.
18. PW-5 & PW-9, Jitendra Kr. Singh and Bijendra Singh, respectively, i.e., sons of the
deceased, identified the dead body of their mother, Lalima Devi and the jewellery and
other articles belonging to her. The inquest was conducted in their presence. The
statement of PW-5 was recorded under Section 164 CrPC, which is exhibited as Ext.-6.
Police recorded the statement of PW-5 and the seized materials
PW-5, during cross-examination, admitted that one pair of payal and one pair of gold
earrings were shown to him by the IO at Moriani GRPS.
PW-9 further deposed that the seized articles were found in the body of his mother i.e.
the bangles, earrings and a pair of payal.
19. PW-6, Subhan Hazarika, ASI of RPF, is a seizure witness, who accompanied the PW-2
at the time of recovering the dead body of the deceased. He deposed that GRP seized (i)
one vanity bag, two Nos. of mobiles, some cash amounting to Rs. 2,040/-, one side bag
containing 5 Nos. of old sarees, one new side bag, one bangle, one lady umbrella, one
gas lighter, some cosmetic items and medicines (all these are exhibited as material
Ext.1), (ii) one black coloured side bag, one steel Tiffin and one pair of sandal (all these
are exhibited as material Ext.2), (iii) SLR (D) NF 03707 for disabled coach & 15 Nos. of
photograph copy and (iv) one Sony handycam D.V. camera & one DVD Disc. This
witness saw the dead body lying in the toilet of the coach.
During cross-examination, he deposed that the articles were seized inside the coach, and
he does not know if the articles were retained in the coach or taken into the GRP Post.
20. PW-7, Samir Das, is a resident residing adjacent to Mariani Railway Station. He
deposed that the coach, where the dead body was found, was separated from the train
and was kept at line No.5. According to him, he was not allowed to enter the coach, and
Page No.# 8/18
one police officer told him to put his signature on a paper and therefore he put his
signature on a paper. He identified his signature in Ext. 3 as Ext.3(3).
During cross-examination, he deposed that he didn't went through the contents of Ext. 3
and had put his signature as he was asked.
21. PW-8, Mrinal Kumar Saikia, was associated with the village defence force. Out of
curiosity, he went to Moriani GRPS as he witnessed the presence of a large number of
persons inside Moriani GRPS and thereafter, he saw the two accused persons there.
While he was inside the office of the Officer in Charge, he was told by the police
officials that two accused persons were involved in the murder case, and the two persons
were disclosing OC Biren Kalita how they committed the murder.
During cross-examination, he affirmed that inside the police station, Senior Police
Officers were present in the room of the OC, including Addl. SP, Jorhat, Circle Inspector
Rajen Borah, OC of Moriani Police Station, Revenue Circle Officer, and approximately
40-50 police personnel were present. Except for the police officer, there were no other
persons. And the accused were just saying "yes" "yes" in reply to every question put
forward by the police . The police personnel were armed with weapons, including
bamboo and sticks, and the accused persons were inside the room.
22. PW-10, Siba Kanta Gogoi, ASI of RPF, accompanied PW-2 to the coach, where they
found a female corpse lying inside the toilet of the said coach. He is a seizure witness
and proved Ext.4 seizure list and his signature as Ext.4(2).
23. PW-11, Runu Bikash Sarkar, is a vendor at platform No. 2 of Mariani Railway
Junction. He heard that one dead body was recovered from the toilet of the coach. He
could not enter the railway coach due to the presence of crowd. He is a witness to Ext.7
Seizure List and proved his signature as Ext.7(1); however, according to him, the police
did not show him anything before putting on his signature.
During cross-examination, he testified that when he put on his signature in Ext.7, it was
Page No.# 9/18
a blank document.
24. PW-12, Anupam Gogoi, was on duty as the In-Charge Station Superintendent of
Mariani Junction on 11.07.2018. He is a seizure witness. He deposed that after obtaining
necessary permission from the higher authority, he detached the coach where the female
corpse was found, and he had seen the dead body inside the coach through the window.
When he reached the coach, the police personnel were already there, and he never
entered the coach. OC Biren Kalita seized the coach, and he put his signature on the
Ext.4 Seizure list.
25. PW-13, Subir Dutta, is a videographer. He did the videography of the demonstration
given by the accused persons as to how they had murdered the woman in the Avadh
Assam Express. He videographed the demonstration on 12.07.2018. He prepared the
C.D. (material Ext. 1).
26. PW-14, Pradip Ch. Ray is a hearsay witness who heard that a female corpse was found
inside the coach of the said train, and her neck was strangulated by a Gamocha.
27. PW-15, Subhrajyoti Bhattacharjee, Station Master of Tinsukia Railway Station, was on
duty on the day of the incident. He deposed that the aforesaid train was detained at
Panitola Railway Station for about 33 minutes for signal failure.
28. PW-16, Birendra Namasudra, Station Superintendent of Panitola Railway Station, was
on leave from 10.07.2018 to 20.07.2018 and therefore, he was not aware of the incident.
29. PW-17, Murari Pandey, the younger brother of the accused Bipin Pandey, proved by
exhibiting the CCTV footage that his brother was present on the day of the incident, in
the vehicle stand from where he usually operated.
30. PW-18, Rupanta Charingia Phukan, learned Chief Judicial Magistrate, Jorhat, recorded
the confessional statement of the appellant under Section 164 Cr.P.C, which was
exhibited as Ext. 11. He deposed that he explained to the accused that he was not bound
to make any confession, and if he made any confession, such confession would be used
Page No.# 10/18
against him in the trial.
During cross-examination, this witness stated that the accused, Bikash Das, declined to
confess to the Court at Nazira on 25.07.2018 in connection with Simaluguri PS Case No.
6/2018 and that he was arrested in Moriani GRPS Case No. 14/2018 on 16.07.2018. The
confessional statement was recorded on 03.08.2018.
31. PW-19, Dr. Swaraj Phukan, conducted the post-mortem examination upon the dead
body of the deceased, and he provided his report as Exhibit-12. This witness found the
following injuries:
1. Laceration of size 1cm x 1cm x soft tissue depth present over the left thumb.
2. Abrasion of size 1cm x 0.5cm is present over the right medial maleolus.
3. Abrasions of size 1.5cm x 0.5cm, 1cm x 0.5cm and 1.5cm x .5cm are present over the
back of the waist, middle portion, 1cm apart from each other.
4. A contusion of size 15cm x 12cm is present over the occipital region of the scalp.
5. A contusion of size 10cm x 8 cm is present over the parieto-temporal region of the
scalp on the right side.
6. A contusion of size 5cm x 4 cm is present over the left temporal region of the scalp.
Skull and vertebrae- healthy.
7. A contusion of size 10cm x 6cm is present over the upper chest, middle part.
Ribs and cartilages are healthy.
8. Abrasion of size 1cm x 0.5cm is present over the junction of both labia majora
posteriorly, and the colour is red.
This witness opined that death was due to asphyxia following ligature strangulation and
was homicidal in nature. Injuries described are ante mortem in nature and caused by
Page No.# 11/18
blunt force impact.
32. PW-20, Biren Kalita, Officer-in-Charge of Mariani GRPS, in his examination-in-chief,
deposed that on 11.07.2018, one of his subordinates, Jitu Mipun, had lodged an ejahar
and , after receiving the said ejahar, he had registered a case being Moriani GRPS Case
No. 14/2018 under Section 302/376 of IPC and investigated the case. On the same day,
the Station Master of Moriani Railway Junction called him over the phone and told him
that there was a female corpse in a coach of 15909 down Avadh Assam Express, meant
for the disabled. Thereafter, he, along with PW-1 and his other staff, proceeded towards
the said coach, and thereafter, found that the female corpse was lying inside the toilet of
the coach. He also saw that the lower part of the dead body was devoid of clothes, and
on the upper part, the blouse was open. There was a Gamocha wrapped around the neck
of the dead body, and there was nasal bleeding. Thereafter, he informed his superiors.
Based on the directions of his superiors, he had the coach detached from the train. The
said coach was taken to line No. 5. He found that there were some bags near the seat of
the coach. He opened one of the bags and found a book containing phone numbers. The
phone book contained the telephone number of a person, called Bijendra Singh, and
therefore, he called him over the phone. Thereafter, he told him that his mother was
travelling in the said coach, so the dead body might be that of his mother's. He sent a
photo of the dead body to Bijendra Singh. He told them that the dead body was that of
his mother's. He seized one vanity bag containing two mobile phones with numbers
9101687921 and 9525048801. He also found a cash amount of Rs. 2,040/-, containing
15 notes of 100 rupee denomination, one 200 rupee note, six notes of 50 rupee
denomination, and two notes of 20 rupee denomination. He also seized a side bag
containing five old sarees, one pair of city gold bangles, one old lady's umbrella, one gas
lighter and some cosmetic items and medicines. He also deposed that he seized the
detached disabled coach. Ext.4 was the seizure list, and Ext.4(3) was his signature. He
had the inquest conducted by Circle Officer Rukshana Begum, which was exhibited as
Ext.2 and his signature as Ext.2(4). He also seized one red and white striped Gamocha,
blood-soaked cotton. The CID team took the blood of the deceased with a cotton swab.
Page No.# 12/18
He seized the said blood-soaked cotton and exhibited it as Ext.5 and put his signature as
Ext. 5(3). He further deposed that the two sons of the deceased also arrived and they
identified the dead body to be that of their mother's. He recorded the statements of PW-5
and PW-9, respectively, the sons of the deceased. Thereafter, he sent the corpse to Jorhat
Medical College for postmortem examination. Thereafter, on 16.07.2018, the OC,
Simuluguri PS, sent him a WT message. He was informed that Simuluguri PS had
detained two persons involved in another murder that was committed in another train,
and those two detained persons had confessed that they had murdered the woman in the
disabled coach of Avadh Assam Express. On 17.07.2018, he went to Simuluguri PS and
interrogated the two persons. The names of those persons are Bipin Pandey and Bikash
Das. He recorded their statements. They admitted that they had murdered the woman in
the Avadh Assam Express while the train was running between Tinsukia Railway Station
and TCP, Panitola. Thereafter, he made a prayer before the Magistrate at Jorhat to show
Bipin Pandey and Bikash Das as arrested in the instant case and also prayed for the
issuance of a production warrant. The court accordingly issued a production warrant.
Then he went to the court at Nazira, under whose jurisdiction, Simuluguri PS falls. He
filed an application in the Court at Nazira for taking those two persons into custody. The
court gave custody of Bipin Pandey only. The other person was not given custody
because he reportedly agreed to confess. On 26.07.2018, he again went to the Nazira
court and took custody of Bikash Das. He took him into police custody based on an
order passed by the Magistrate. On 28.07.2018, he took both the accused to the disabled
coach that was stationed at Line No. 5, and the accused recreated the crime scene. On
31.07.2018, he reproduced both the accused in the court for sending them to judicial
custody and also filed a prayer to record the confessional statement of Bikash Das. On
03.08.2018, Bikash Das made a confessional statement before a Magistrate at Jorhat.
During cross-examination, he deposed that on 06.10.2018, he had received the FSL
report and endorsed the same in his C.D. He made an endorsement in the C.D. to the
effect that there are no materials in the FSL report to connect the accused persons in this
case. He further deposed that while the accused persons were in the police custody, he
Page No.# 13/18
could not collect any incriminating evidence against them. During the period of
investigation, he did not examine any witness to establish the fact that on 10.07.2018
and on 11.07.2018, both the accused persons were present at Dibrugarh Railway
Platform or in Avadh Assam Express or in Rangia Express. Initially, he investigated the
case, but as the place of occurrence was outside of his jurisdiction, he handed over the
case to the appropriate jurisdictional authority.
33. PW-21, Sakan Ram Boro, Sub-Inspector of GRPS Tinsukia, is another I.O. of the case.
On 07.10.2018, he had received the C.D. of this case. From the diary, he found that the
occurrence took place between Tinsukia and TCP Panitola. He had visited Panitola
Railway Station and recorded the statements of the Station Masters. He also prepared a
Sketch map, which is exhibited as Ext. 16. He deposed that based on the investigation
done by PW-20, he filed the Charge-Sheet (Ext.17) in this case. The investigation of this
case has started in relation to Moriani GRPS Case No. 14/2018, and thereafter, Tinsukia
GRPS Case No. 23/2018 was registered.
During cross-examination, he deposed that none of the witnesses had stated that the
accused persons had committed rape and murder of the deceased woman. During his
investigation, he could not find any materials to suggest that the accused had committed
rape upon the deceased. There was no material to the effect in the case diary.
34. The prosecution had projected certain circumstances to establish the guilt against the
appellant, and the learned Trial Court concluded that such circumstances were duly
proved, pointing to one and only hypothesis of guilt of the accused. For brevity, the
circumstances which, according to the learned Trial Court, were established beyond a
reasonable doubt are quoted herein below:-
(i) The accused, Bikash Das, admitted in his statement recorded under
Section 313 CrPC that on 11.07.2018, he travelled in the Avadh Assam
Express from Dibrugarh to Tinsukia, and he had made a confessional
statement before the concerned Magistrate.
Page No.# 14/18
(ii) There are no irregularities committed by the Magistrate, who had
recorded the confessional statement of the accused Bikash Das.
35. It is true that only a judicial confession recorded under Section 164 Cr.P.C., before a
Magistrate, with proper compliance of safeguard can be relied upon. The Hon'ble Apex
Court has consistently held that, even a judicial confession, though it may form the basis
of conviction, requires the court to exercise great caution. It is unsafe to base conviction
solely on a retracted confession unless corroborated by some independent witness. Such
confession must inspire confidence and prudence and demands corroboration. The
confession should be voluntary, truthful and receive general assurance from other
evidence.
36. In the case in hand, a closure scrutiny of evidence of the I.O., it is seen that the
accused was arrested on 16.07.2018 in connection with Simaluguri PS Case No. 6/2018
and being informed, he interrogated the accused on 17.07.2018, at Simaluguri Police
Station. The accused refused to give confessional statement before the jurisdictional
Magistrate in connection with the Simaluguri Police Station Case. In the meantime, the
accused was in custody of Simaluguri Police Station and on 26.07.2018, the I.O., took
the custody of the accused in connection with the Moriani Police Station Case No.
14/2018. On 28.07.2018, the crime scene recreation was conducted. On 31.07.2018, the
accused was produced before the jurisdictional Magistrate of Moriani Police Station.
The confession was made on 03.08.2018 i.e. two days after the last custody of Police.
Thus, the accused remained in continuous police custody till the last two days before the
confession and therefore, such a confession following prolonged custody requires
heightened scrutiny to exclude taint, more particularly, when the accused, firstly refused
to give confessional statement on the same fact, which in our view, the learned trial
Court failed and placed heavy reliance on it, on the ground that while recording such
statement, due procedure was followed.
37. Yet, another aspect of the matter is that, for grave offences like murder and rape,
Courts must insist on reliable corroboration. In such a case, where the confession is the
Page No.# 15/18
sole evidence and there is no recovery, no medical link and no surrounding
circumstances to lend assurance, it would be unsafe to convict an accused.
38. Having regard to the facts as recorded hereinabove and also the aforesaid principle, if
we look for corroboration in the present case, we found none.
39. The corroboration on which the prosecution, as well as the learned trial Court placed
reliance, is the extrajudicial confession made by the accused before the police in
presence of PW-3 and PW-4. Before proceeding further, here, we take note of the
propositions of law laid down by the Constitution Bench of the Hon'ble Apex Court
while dealing with the provisions of Sections 24 to 27 of the Indian Evidence Act and
Section 162 CrPC in State of U.P. Vs. Deoman Upadhyaya reported in 1960 SSC
online SC 8. Amongst other, the Hon'ble Apex Court laid down a proposition that a
confession made to a person other than a police officer, while in custody of police,
cannot be used as evidence against such person, in a proceeding in which the said person
is charged with the commission of an offence, subject to the condition that such
confession is made in the immediate presence of a Magistrate. Yet, another principle laid
down is that a statement made, whether it is a confession or not, to another person, when
the maker of the confession is not in custody, the person before whom such statement is
made, may be proved, if it is otherwise relevant; however, the person before whom such
confession is made shall not be a police officer.
40. In the case in hand, the prosecution witness before whom such confessions were made
by the accused, unequivocally testified that when such confessional statements were
made before them, the accused persons were in police custody inside the police station
and the police officers were present. To be more precise, PW-3, stated that the two
accused persons admitted before the Officer-in-Charge that they committed the offence
and this witness was present at that relevant point of time. PW-8 also deposed that the
police officers were asking questions to the accused person inside Moriani Police Station
in presence of senior police officers and the accused was answering in affirmative in
reply to every question. The police personnel were armed with weapons, including
Page No.# 16/18
bamboo and stick. Therefore, in the given facts, it is our unhesitant view that the learned
Trial Court committed a serious error of law by relying on the confessional statement
made by the accused before the aforesaid prosecution witness while in police custody
and in the presence of police officers, to be corroborative evidence and mitigating
circumstances against the accused. We have no hesitation even to hold that such
statements are not extrajudicial confession made to a person other than police officer but
are direct answers to police interrogation.
41. Essentially, the prosecution's case rests on circumstantial evidence. The Hon'ble Apex
Court in Hanumant Vs State of Madhya Pradesh reported in 1952-2 SCC 71, reminded
that, in cases, where the evidence is circumstantial, the circumstances in which the
conclusion of guilt is to be drawn should be, in the first instance, fully established, and
all the facts so established should be consistent only with the hypothesis of guilt of the
accused. The chain must be so complete that it rules out any theory other than the guilt
of the accused.
42. In criminal jurisprudence, the circumstantial evidence is admissible and can lead to a
conviction, but only if it satisfies a strict standard as recorded hereinabove. The
prosecution has the onus to eliminate all reasonable hypotheses except that of the
accused's guilt. Any gap in the evidentiary chain mandates acquittal. Such a principle is
based on another important principle that the liberty of an individual cannot be curtailed
unless guilt is established with absolute certainty, even when relying solely on
circumstantial evidence.
43. To summarise, what the prosecution must establish is a complete and unbroken chain
of circumstances, which are established and points only to the guilt of the accused, and it
excludes every other possible hypothesis. It is seen from the different judicial
pronouncements that the Courts in India, while dealing with the circumstantial evidence,
follow a conservative and cautious approach, especially in cases involving a death
sentence or life imprisonment, motive-based prosecution and where scientific and
forensic evidence are missing or inconclusive.
Page No.# 17/18
44. The other circumstances are the recovery of one pair of gold earrings and one pair of
payal belonging to the victim i.e., the mother of PW-5, who identified those materials to
be of his mother's ; however, there is no evidence in this case that such jewellery was
recovered from the possession of the accused appellant. Neither any seizure list nor any
seizure witness was examined to show that it is the accused appellant from whose
possession the jewellery belonging to the deceased mother was recovered. Therefore,
even though it is held that prosecution has been able to establish that the jewellery
exhibited was of the deceased, there is no material to relate the accused to the recovery
of such jewellery.
45. Now, coming to the evidence of crime scene recreation, the evidentiary value is
circumscribed by Sections 8 and 27 of the Indian Evidence Act, 1872. The conduct of
the accused in pointing out the place or demonstrating the manner of commission of
offence may be relevant under Section 8 of the Indian Evidence Act, 1872. However, if
the reconstruction of crime scene, merely reproduces what is already known to the
investigating agency and does not lead to discovery of any new facts, evidentiary value
of such crime scene recreation's worth is negligible. A mere crime scene demonstration
by the accused without corroboration cannot lend assistance to the prosecution.
46. In the case in hand, a closure scrutiny of evidence of PW 13 and also from the
evidence of the I.O. (PW-20), we are of the unhesitant view that the crime scene
recreation did not result in the recovery of any material object or the discovery of any
new fact, which is unknown to the investigating agency. It only recorded the conduct of
the appellant in enacting the alleged sequence of events based on the information
already gathered by the investigating agency. Such conduct, in law, cannot, by itself,
establish guilt in the absence of corroborative evidence.
47. Therefore, in the totality of the matter, this Court has serious doubt as regards the
truthfulness of the confession made by the accused coupled with the fact that there was
no other corroborative materials and/or circumstances pointing to the guilt of the
accused to satisfy ourselves to convict the accused based only on the confessional
Page No.# 18/18
statement recorded under Section 164 Cr.P.C.
48. In the totality of the matter, this Court is of the unhesitant view that the prosecution
has failed to establish the case against the accused beyond reasonable doubt, more
particularly, when the sole statement of the accused recorded under Section 164 Cr.P.C.,
stands retracted; the crime scene recreation is devoid of discovery or corroboration; no
other circumstances/evidence is having corroborative value, the prosecution case, in our
opinion, rest on no legally admissible foundation. It would thus be unsafe and legally
impermissible to uphold the conviction of the accused on such slender material.
49. For the reasons recorded hereinabove, this Court is of the unhesitant view that the
conviction of the appellant based solely on a retracted confession recorded under Section
164 Cr.P.C., and the crime scene recreation is unsustainable in law. The judgment &
order of conviction and sentence dated 07.06.2019 passed by the learned Sessions Judge,
Tinsukia, in Sessions Case No. 113(T)/2018, is accordingly set aside. The appellant is
acquitted of all the charges, giving him the benefit of doubt, and accordingly, he shall be
released forthwith, if not required and/or is not in custody in connection with any other
case.
JUDGE CHIEF JUSTICE
Comparing Assistant
