C.R. Sarma, J.— This appeal is directed against the judgment and order, dated 04.04.2007, passed by the learned Sessions Judge, Dibrugarh, in Sessi ons Case No. 124/2006. By the impugned judgment and order, the learned Sessions Judge, Dibrugarh convicted Shri Sunil Kama (hereinafter called the "appellant"), for the offence under Section 302 of the Indian Penal Code (in short, "IPC" and sentenced the appellant to suffer life imprisonment and pay fine of Rs. 5,000/-, in default, suffer simple imprisonment for another 2 (two) months for his conviction under Section 302 IPC. 2. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. 3. We have heard Ms. D. Borgohain, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. We have also perused the materials, on records. 4. Prosecution case, in brief, is that Shri Phulchand Karuah (in short, "deceased") and his nephew i.e. the appellant used to live in the same house. On the morning of 1.1.2006 hearing hue and cry, the deceased's brother i.e. the informant (PW-2) visited the house of the deceased and found the dead body of the deceased, lying in the verandah, with injuries on his body. At the time of detecting the dead body of the deceased, the appellant was not found available in the said house. Accordingly, Shri Mangu Karua (PW 2), brother of the deceased informed the Gaonburah (village headman) and the Gaonburah telephonically informed the police Station. P W 2 lodged also an FIR (Ext. 4) with the police alleging that the deceased was killed by the appellant, by cutting him with a dao. Shri Ramu Gorh (PW 3), Shri Ghanashyam Gorh (PW 5) and Shri Gabbar Singh Munda (PW -6), who also visited the place of occurrence saw the dead body of the deceased, lying in the courtyard. 5. On receipt of the FIR, police registered a case under section 302 IPC and visited the place of occurrence. During the course of investigation, the I.O. prepared the inquest report (Ext. 3) in respect of the dead body of the deceased, a sketch map (Ext. 5), examined the witnesses and forwarded the dead body of the deceased for post-mortem examination.
On receipt of the FIR, police registered a case under section 302 IPC and visited the place of occurrence. During the course of investigation, the I.O. prepared the inquest report (Ext. 3) in respect of the dead body of the deceased, a sketch map (Ext. 5), examined the witnesses and forwarded the dead body of the deceased for post-mortem examination. The appellant, who was found loitering near the Moran Tea Hospital, was arrested by police and on being asked by the police, he confessed his guilt before the police. 6. At the close of investigation, police submitted charge sheet against the appellant, under Section 302 IPC. The offence, being exclusively triable by the court of Sessions, the learned C JM, Dibrugarh committed the case to the Court of Sessions. The learned Sessions Judge, Dibrugarh, framed charge under Section 302 IPC. The charges were read over and explained to the accused, to which he pleaded not guilty. 7. In order to prove their case, prosecution examined, as many as, 7 witnesses, including the medical officer (PW 1), who performed autopsy on the dead body of the deceased and the investigating officer (PW 7). The accused person was examined under Section 313 of the code of Criminal Procedure(in short, 'Cr. PC.'). The accused person denied the allegations, brought against him. He stated that though he used to live with the deceased in the same house, on the date of occurrence, he got admitted in the hospital, wherefrom he was arrested by the police. He also stated that, on being compelled by the police, he stated that he had assaulted the deceased. 8. Having heard the learned counsel for both the parties and considering the circumstantial evidence that both the appellant and the deceased used to live together and the fact that the appellant failed to prove the pea of alibi that he was hospitalized on the date of occurrence, the learned trial Judge came to the findings that the prosecution could establish the case. Accordingly, the learned Sessions Judge, Dibrugarh convicted and sentence the appellant, as indicated herein-above. 9. Mr. R.K. Adhikari, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no legal evidence against the appellant. It is also submitted that none of the prosecution witnesses could state anything regarding involvement of the appellant with the alleged offence.
9. Mr. R.K. Adhikari, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no legal evidence against the appellant. It is also submitted that none of the prosecution witnesses could state anything regarding involvement of the appellant with the alleged offence. The learned arnicas curie has also submitted that absence of the appellant, from the house, where he used to live with the deceased and the finding of the dead body of the deceased on the verandah of their house, cannot be sufficient and substantive evidence, leading to the irresistible conclusion that none other than the appellant had caused the death of the deceased. It is also submitted that the appellant has categorically stated, in his statement made under Section 313 CrPC, that he was hospitalized on the date of occurrence and that he was arrested from the hospital. It is also submitted that the arrest of the appellant from around the Moran Hospital, does substantially indicate that he had committed the said crime. In view of the above, the learned amicus curiae has submitted that prosecution failed to prove the case against the appellant, beyond all reasonable doubt and as such, the appellant is entitled to be acquitted. 10. Resisting the said argument, advanced by the learned Amicus Curiae, Mr. D. Das, learned Addl. Public Prosecutor, Assam, appearing for the State respondent has submitted that both the appellant and the deceased used to live in the same house and that the finding of dead body of the deceased on the verandah of their house coupled with the absence of the appellant, sufficiently indicates that the appellant had the knowledge as to how and in what manner the deceased sustained injuries, resulting his death. Therefore, it is submitted that failure of the appellant to properly explain the circumstance under which the deceased sustained fatal injuries clearly indicates that the appellant was involved with the alleged crime. Referring to the provision of Section 106 of the Indian Evidence Act, the learned Addl. P.P. has submitted that the appellant failed to discharge his burden and as such he has been rightly convicted and sentenced by the learned trial Judge.
Referring to the provision of Section 106 of the Indian Evidence Act, the learned Addl. P.P. has submitted that the appellant failed to discharge his burden and as such he has been rightly convicted and sentenced by the learned trial Judge. It is also submitted that though the appellant had taken the plea of alibi by saying that he was hospitalized on the date of occurrence, he failed to adduce any reliable evidence to substantiate the said plea. It is submitted, by the learned Addl. Public Prosecutor, that there is strong circumstantial evidence about the involvement of the appellant and that the prosecution could successfully prove the case, beyond all reasonable doubt. In view of the above, the learned Addl. Public Prosecutor has submitted that the leaned Sessions Judge committed no error by recording the conviction and the sentence, as indicated above. 11. In the present case, PW 1 (Dr. R.K. Gogoi) was the medical officer, who performed the autopsy of the dead body of the deceased. He found the following injuries: " 1) An incised wound 25 x 8 cm back of the leg in upper third directed downward and medially which incised the left tibia and fibula bone. 2) An incised wound measuring 5 x 0.4 cm skin deep on the back of left chest wall directed downward and medially". The said medical officer opined that the cause of death was shock and haemorrhage, resulting from injuries sustained by the deceased. He also opined that the all injuries were ante mortem and caused by sharp cutting weapon and homicidal in nature. 12. PW- 7 was the I.O. who investigated the case, PWs 2, 3, 5 and 6 are non-official witnesses. PW 4 Shri Budna Karuah is the son of the deceased. On the fateful night, he was sleeping in the house of his paternal aunt. He stated that on the night of occurrence, after taking meal he went out to sleep in his paternal aunt's house and that no body was there at the house. He also stated that he did not know where his father i.e. the deceased and the appellant had gone. He further stated that, on the following morning, he came to know that his father was killed. According to this witness, he returned to their house after the post-mortem examination was done.
He also stated that he did not know where his father i.e. the deceased and the appellant had gone. He further stated that, on the following morning, he came to know that his father was killed. According to this witness, he returned to their house after the post-mortem examination was done. From the evidence of PW 4, it is found that he left the house after taking meal at night and that neither the deceased nor the appellant were there in the house. Therefore, it cannot be held that the appellant was last seen in the company of the deceased. 13. Shri Mangu Karua (P W-2), Shri Ramu Garh (PW-3), Shri Ghanashyam Gorh (PW-5) and Shri Gabbar Singh Munda (PW-6) visited the place of occurrence and they had no personal knowledge about the involvement of the appellant. PW 3, Shri Ramu Garh stated that the police had brought the appellant and the appellant had produced a knife i.e. Material Ext. 1 from the hedge of the orchard behind his house. He was a witness to the seizure of the said knife. Ext. 1 is the seizure list and Ext. 2(1) is his signature. This witness stated that there was blood stain in the knife i.e. Material Ext. 1. Except PW 3, none of the independent witnesses, including the informant, who was the brother of the deceased had stated about seizure of blood stained dagger, on being produced by the appellant. 14. Of course, the I.O. Shri Mrinal Kr. Das, deposing as PW 7, stated that the appellant had shown a dao, which was kept hidden. The I.O. also stated that the seized dao contained blood stain; but no chemical examination was done in order to ascertain as to whether the said seized dao had contained human blood. The fact of seizure of the blood stain weapon, on being led by the accused person, cannot be treated as substantive evidence with regard to involvement of the appellant with the alleged crime. 15. In the case of SK Yusuf Vs. State of West Bengal, reported in (2011) 11SCC 754 at paragraph 34, the Supreme Court has observed that: "the nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 of the Evidence Act, 1872 is very limited.
15. In the case of SK Yusuf Vs. State of West Bengal, reported in (2011) 11SCC 754 at paragraph 34, the Supreme Court has observed that: "the nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 of the Evidence Act, 1872 is very limited. If an accused deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, and as a result of such disclosure, recovery of the weapon is made, no interference can be drawn against the accused, if there is no evidence connecting the weapon with the crime alleged to have been committed by the accused." 16. In the present case, even if we accept the version of the I.O. regarding leading to the discovery of the seized dao, the seizure of the dao itself cannot be treated as substantive evidence to implicate the accused person, inasmuch as no chemical examination in respect of the seized dao was done to show that the same was used by the appellant in committing the alleged crime. Therefore, in the absence of any corroborating evidence, the seizure of weapon at the instance of the accused person cannot lead to the conclusive findings that the same was used by the appellant in committing the alleged crime. 17. Having heard the learned counsel, appearing for both the parties and carefully perusing the evidence, on record, we find that both the appellant and the deceased used to live in the same house and on the fateful morning, when the dead body of the deceased was found, the appellant was not available in the house. Such absence of the appellant from their house, normally, leads to the presumption about the involvement of the appellant. But the presumption, how so ever high cannot be substitute for legal and substantive evidence. Criminal jurisprudence requires the prosec ution to prove the allegations, brought against the accused person(s), beyond all reasonable doubt by adducing cogent, reliable and substantive evidence. To apply the last seen theory and the provision under Section 106 of the Evidence Act, it must be established that the deceased was seen in the company of the accused, immediately before death.
Criminal jurisprudence requires the prosec ution to prove the allegations, brought against the accused person(s), beyond all reasonable doubt by adducing cogent, reliable and substantive evidence. To apply the last seen theory and the provision under Section 106 of the Evidence Act, it must be established that the deceased was seen in the company of the accused, immediately before death. Hence, the time gap between the period, when the deceased was seen alive in the company of the accused and the time when the dead body was found or the deceased died is important factor. In the present case, there is nothing on record to show that none except the appellant was in the company of the deceased till the latter's death. From the evidence of the son of the deceased i.e. PW 4, who left the home at night, after taking meal it is found that at the time of leaveing their house, both the appellant and the deceased were not there. Hence, the whereabouts of the deceased and the appellant in that night was known. Therefore, the absence of the appellant from his house and finding of the dead body of the deceased in the verandah of their house, cannot be treated as legal and substantive evidence to base the conviction. In fact there is no evidence to show that they were last seen together. 18. In view of the above discussion, considering the entire aspect of the matter, we find no sufficient reliable, cogent and legal evidence to believe that the appellant had caused the death of the deceased. This being the position, we have no hesitation in holding that that the prosecution failed to establish the case, against the appellant, beyond all reason-1 able doubt. Therefore, we find sufficient merit in this appeal requiring interference with the impugned conviction and sentence. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellant is acquitted. He be set at liberty forthwith, if not required in any other case. 19. The death of the deceased was certainly a great loss to the dependent family members, if any. Therefore, the dependents are entitled to get compensation under Section 357-ACr. P.C. 20.
The impugned conviction and sentence are set aside. The appellant is acquitted. He be set at liberty forthwith, if not required in any other case. 19. The death of the deceased was certainly a great loss to the dependent family members, if any. Therefore, the dependents are entitled to get compensation under Section 357-ACr. P.C. 20. For the sake of brevity, without repeat ing the discussions, made in the Criminal Appeal No. 93(J) 72005 (disposed of on 22.12.2011), with regard to the victim comp ensation, as provided by Section 357 A Cr.P.C, we make the following directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs.50,000/- be deposited by the State Government with the District Legal Services Authority of Dibmgarh District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such depend ent(s) or legal representative(s) need any rehabilitation." (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabil itation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs.50,000/-, without delay, in favour of the State Government. 21. We record our appreciation for the services, rendered by Ms. D. Borgohain, as Amicus Curiae and direct that an amount of Rs. 5,000/- be paid to him as his remuner ation, by the State Legal Services Authority. 22. Return the LCR. _____________