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2018 DIGILAW 431 (GAU)

Chakradhar Buragohain v. State of Assam

2018-03-12

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
JUDGMENT : Ajit Borthakur, J. 1. Heard Ms. M.D. Choudhury, learned counsel for the appellant and Mr. K. Konwar, learned Additional Public Prosecutor, Assam. This appeal under Section 374 and 482 of the Cr.P.C. has been preferred against the judgment and order, dated 27.08.2013, passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 280(T)/2012, whereby the appellant has been convicted under Sections 302/201 of the IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/- (Rupees One Thousand only), in default of payment of fine to undergo rigorous imprisonment for a further period of 01 (one) month for the offence under Section 302 of the IPC. The appellant is further sentenced to undergo rigorous imprisonment for 3 (three) years and to pay fine of Rs. 1,000/- (one thousand) only in default to undergo rigorous imprisonment for one month under Section 201 of the IPC. The learned court below directed that the sentences shall run concurrently. 2. The appellant's case, in brief, is that one Shri Manoj Gogoi, S/o. late Kuladhar Gogoi, a resident of Dahotia village lodged an FIR, on 16.08.2012, with the Officer-in-Charge, Bardubi P.S. alleging that on 14.08.2012, his elder brother Tarju Gogoi, aged about 32 years, after returning home from 'Tuesday Market', again went out of house at about 12.00 O'clock, midnight, and had been missing since then. On 16.08.2012, at about 11.00 am, some of the workers of Kehang Tea Estate found a headless dead body at Station No. 9, Laipuli of Kehang Tea Estate and a severed head, a little away there from. Hearing the news of recovery of a headless dead body, he along with other family members went to see the dead body and identified that to be of his elder brother Tarju Gogoi. It was suspected that some unidentified miscreants killed him and concealed the dead body under the culvert of the said tea garden. 3. Based on the above FIR, Bardubi P.S. Case No. 55/2012 under Sections 302/201 of the IPC, dated 16.08.2012, was registered and the Officer-in-Charge SI Monimohan Koch, endorsed the case to S.I Prafulla Kataky for investigation into the case. 4. 3. Based on the above FIR, Bardubi P.S. Case No. 55/2012 under Sections 302/201 of the IPC, dated 16.08.2012, was registered and the Officer-in-Charge SI Monimohan Koch, endorsed the case to S.I Prafulla Kataky for investigation into the case. 4. It is pertinent to mention here that before the aforesaid written FIR was received, on receipt of telephonic information from one Suresh Nayak about the occurrence, Bordubi P.S. G.D. Entry No. 227, dated 16.08.2012, was made and thereupon, the officer in charge entrusted the investigation to S.I Prafulla Kataky and accordingly, he launched investigation. 5. After completion of the investigation, the investigating officer, SI Prafulla Kataky submitted the Charge-Sheet under Sections 120B/302/201/34 of the IPC against the appellant and another namely, Smti. Paranu Gogoi, wife of the deceased Tarju Gogoi. Subsequently, the case was registered as G.R. Case No. 1059/2012, in the court of learned Chief Judicial Magistrate, Tinsukia, Assam. After furnishing copy as required under Section 207 of the Cr.P.C., the case was committed by the learned Judicial Magistrate, First Class, Tinsukia under Section 209 of the Cr.P.C., to the Court of learned Sessions Judge, Tinsukia vide order, dated 08.11.2012, passed in G.R. Case No. 1059/2012. Thereafter, the said case was registered as Sessions Case No. 280(T)/2012 in the Court of learned Sessions Judge, Tinsukia. After perusal of the materials in the case diary and hearing the learned counsel of both the sides, the then learned Sessions Judge framed charges under Sections 302/201/34 of the IPC against both the accused persons vide order, dated 29.11.2012. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 6. In course of trial, the prosecution examined as many as 11 (eleven) witnesses including the investigating officer and the doctor. After closing the evidence of the prosecution side, the learned Sessions Judge, Tinsukia recorded the statements of the accused persons under Section 313 of the Cr.P.C. The accused persons including the present appellant pleaded not guilty. The learned Sessions Judge after hearing the arguments advanced by the learned counsel of both the sides and appreciation of evidence adduced by the prosecution side, convicted and sentenced the appellant, as stated above, and acquitted the co-accused Smti. Paranu Gogoi of the charges. 7. The learned Sessions Judge after hearing the arguments advanced by the learned counsel of both the sides and appreciation of evidence adduced by the prosecution side, convicted and sentenced the appellant, as stated above, and acquitted the co-accused Smti. Paranu Gogoi of the charges. 7. By the above appeal, the appellant has assailed the impugned judgment and order, dated 27.08.2013, passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 280(T)/2012 on the grounds, inter alia, that- (i) The learned Court below failed to appreciate the relevant laws and facts emerged on evidence from proper perspective and acted on the surmises than on sound reasonings; (ii) The learned court below relied upon the statements of the witnesses recorded under Section 161 Cr.P.C.; (iii) The dead body of Tarju Gogoi was found in decomposed condition with head severed, beyond recognition and therefore, the identification of the dead body by his brother on physical appearance without DNA test cannot be a conclusive evidence of identification of the dead body as that of Tarju Gogoi; (iv) The court below has not taken into consideration of the evidence that the deceased was last seen together in the market with the appellant and other persons and whereas the dead body of the deceased as well as some cloths were recovered from different places; and (v) The learned Court below has convicted the appellant without taking into consideration of the prosecution's failure to establish the fact of intention or motive behind commission of the offence of the murder and that his co-accused, wife of the deceased is acquitted. 8. Section 299 of the IPC defines the expression 'culpable homicide' and it consists of in the doing of an act-(a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; or (c) with the knowledge that the act is likely to cause death. Section 300 of the IPC defines what is 'murder', which is an unlawful homicide with malice a fore-thought and satisfies any of the requirements of the 4 (four) circumstances defined therein. 'Culpable homicide' is not murder if the alleged criminal act of the accused proved to have committed under any of the 5 (five) Exceptions to Section 300 of the IPC. 'Culpable homicide' is not murder if the alleged criminal act of the accused proved to have committed under any of the 5 (five) Exceptions to Section 300 of the IPC. On the other hand, when the act of an offence committed by the accused is proved, but he intentionally or knowingly caused disappearance of evidence of such offence in any manner to screen himself from legal punishment, he is punishable under Section 201 of the IPC. 9. In view of the above legal requirements to be proved by evidence under the charges framed against the appellant, let us briefly look at the evidence on record. 10. P.W. 1 Dr. Nirod Kr. Borah is the autopsy surgeon, who performed the postmortem examination on the body of Tarju Gogoi, on 17.08.2012 at about 12.30 pm, at the Civil Hospital, Tinsukia, on being identified by his relative Raju Gogoi (P.W-5) and found as follows; "A male body of average built, brown complexion, hair was 1' long, black wearing a black underwear only. Body was partially decomposed. Rigor mortis was absent. Maggots were seen crawling on the wounds. Head was separated from the body due to incised wounds at the level of 3rd cervical vertebrae. The wound was caused by sharp weapon. There were multiple incised wounds of various sizes and depths on the face and scalp of the head. Total numbers of the wounds were 10 in number. One of the above mentioned injuries caused incised wound on left side of temporal bone and cut deep into the left lobe of cerebrum. All injuries were caused by sharp weapon. I examined both parts of the body i.e. head and trunk and both the parts were matched with each other, which revealed that both the parts were the parts of same and one person". In the opinion of the doctor (P.W-1), the cause of death of the deceased was due to shock and haemorrhage as a result of injuries sustained, which were anti-mortem and homicidal in nature and further, approx. time since death was 48-72 hrs. The doctor has recognised Ext. 1, the post-mortem examination report and Exts. 2, 3 & 4, the inquest reports. In cross-examination, the doctor stated that he has not mentioned that both the body parts were matched before postmortem examination was done and that no request was received from the I.O. for sending the body parts for DNA examination. The doctor has recognised Ext. 1, the post-mortem examination report and Exts. 2, 3 & 4, the inquest reports. In cross-examination, the doctor stated that he has not mentioned that both the body parts were matched before postmortem examination was done and that no request was received from the I.O. for sending the body parts for DNA examination. 11. P.W. 2 Shri. Suresh Nayak is the Secretary of Asom Chah Mazdur Sangh of Kehang Tea Estate chapter. He did not know the deceased Tarju Gogoi. His evidence is that on a day at about 10.00 am, in the month of August, while he was in the Tea Estate factory, he came to know from some of the labourers of Section-8 of Kehang Tea Estate to the effect that a dead body was lying under the culvert in the said Section of the Tea Estate. He rushed to the spot and found a headless dead body lying under the culvert and thereupon, he informed the Bordubi P.S., over phone. Thereafter, the police launched investigation and recovered the severed head amidst the tea bushes of the garden, about half a K.M away in a condition beyond recognition, being infested with maggots. The police, in presence of a Magistrate and many people, matched the dead body with the head which was recovered at a distance. Inquest was held over the dead body and three papers were prepared in his presence vide Exts. 2(5), 3(5) & 4(5) which are his signatures. In cross-examination, he, inter-alia, stated that the dead body was not in decomposed condition. 12. P.W. 3 Shri Tarun Gohain was a co-villager of the deceased Tarju Gogoi. His version is that on 16th August, hearing hue and cry raised by the labourers of Kehang Tea Estate to the effect that a dead body was found lying under the culvert, he along with other villagers went to the place of occurrence. Police came to the place of occurrence. The head of the dead body was found at a distance of about 150 metres from the place, where the dead body was lying, in a condition beyond recognition. The brother of the deceased, nick-named Guti identified the dead body as that of his brother Tarju in his presence. Police prepared some papers at the place and obtained his signatures thereon, vide Exts. 2(6), 3(6) & 4(6) respectively. 13. The brother of the deceased, nick-named Guti identified the dead body as that of his brother Tarju in his presence. Police prepared some papers at the place and obtained his signatures thereon, vide Exts. 2(6), 3(6) & 4(6) respectively. 13. P.W. 4 Shri Chandra Gohain was another co-villager of the deceased. According to him, on 16th August, hearing about recovery of a dead body in the midst of tea bushes of Kehang Tea Estate, he along with others went to the place of occurrence to see the dead body. He saw the dead body lying under a culvert of the tea garden without head. The head was found lying in a small canal of the tea garden at a distance of about 100 metres from the dead body. At about 11.00-11.30 am, police arrived. The police prepared some papers and obtained his signatures thereon vide Exts. 2(7), 3(7) & 4(7) respectively. The dead body was identified by Guti, brother of the deceased, to be that of his elder brother Tarju Gogoi. 14. P.W. 5 Shri Raju Gogoi was the younger brother of the deceased Tarju Gogoi. According to him, Tarju died on 14.08.2012. On 14.08.2012, Tarju went to the market accompanied by the appellant on a motorcycle and he did not return till evening. He enquired from the appellant about his brother, to which he replied that he had dropped his brother Tarju on the way. He launched search for Tarju, but did not find him. On 16.8.2012, he found the dead body of Tarju without head at Section-9 of Kehang Tea Estate. The severed head was found about 12 ft. away from the place, where the dead body was found. The police came and brought the severed head and matched it with the trunk of the dead body. Three inquest reports were prepared vide Exts. 2, 3 & 4. He put his signatures thereon vide Exts. 2(8),3(8) & 4(8) respectively. The police arrested the appellant on the same day itself. According to him, at the police station, the appellant confessed to the killing of Tarju, in presence of many people. On the following day, the co-accused Smt. Paranu Gogoi was arrested. In cross-examination, he, inter- alia, stated that on the following day of missing of his brother, the appellant had taken him on his motor-cycle to search for Tarju. According to him, at the police station, the appellant confessed to the killing of Tarju, in presence of many people. On the following day, the co-accused Smt. Paranu Gogoi was arrested. In cross-examination, he, inter- alia, stated that on the following day of missing of his brother, the appellant had taken him on his motor-cycle to search for Tarju. In the night of 14.08.2012, the appellant told him that he had left his brother on the way, while coming from the market. He also went to the market and had seen his brother Tarju there. In cross-examination, he, inter-alia, stated that the severed head was beyond recognition and he identified the dead body of his brother observing his physical attributes. The appellant did not make any confession before him. He stated before the police that on the night of 14.8.2012, he had asked Smti. Paranu Gogoi, wife of the deceased, and in reply, she said that after quarrelling with her, her husband Tarju left the house. 15. P.W. 6 Smti. Sushila Gogoi was the aunt of the deceased Tarju and a neighbour. Her evidence is that the appellant used to carry on business jointly with Tarju for the last about one year and used to stay at the house of Tarju. One day, appellant and Tarju went to the market. Appellant returned, but not Tarju. After three days, they heard that the dead body of Tarju was found in a tea garden. She went to see the dead body. The police seized the motorcycle of the deceased from his house. Ext. 5 is the seizure memo, where Ext. 5 (1) is her signature. 16. P.W. 7 Shri Manoj Gogoi was the brother of the deceased Tarju. He, inter-alia, deposed that the appellant used to carry on business jointly with his brother Tarju and also used to stay in his house. He heard that the appellant had confessed to killing of his brother. The police seized one dao on being produced by him, in presence of the appellant. The appellant used the dao in meat selling business at his shop. The police also seized some clothes of the deceased from a pond on being pointed out by the appellant himself. He recognized Ext. 6,' the seizure memo. Police also seized one broken motorcycle top hand brake lever and showed the same to them at the police station. The appellant used the dao in meat selling business at his shop. The police also seized some clothes of the deceased from a pond on being pointed out by the appellant himself. He recognized Ext. 6,' the seizure memo. Police also seized one broken motorcycle top hand brake lever and showed the same to them at the police station. He recognised Ext 7, the seizure memo. He also recognised Ext. 8, the seizure memo, whereby the CD of the police photographer was seized. The cloths were seized by Ext. 9. He lodged the FIR vide Ext. 10. In cross-examination, he, inter-alia, deposed that he identified the dead body as that of his brother on the basis of his external appearance. The appellant and Tarju had their own daos for use in their meat selling business. His brother Tarju had worn one striped sporting. A shop belonging to one Girin Gogoi is located near to the place, wherefrom, the seized clothes were recovered. 17. P.W. 8 Shri Sunit Chutia, inter-alia, deposed that on 14.08.2012, he heard that Tarju was missing from his house. Later on, he heard that his dead body was found in Kehang Tea Estate and his dead body was identified by his wife Smti. Paranu Gogoi. The appellant was the business partner of Tarju and the police arrested him on suspicion. At the police station, the appellant confessed to killing of Tarju, in presence of police personnel and public. Some clothes of the deceased were recovered from a pond on being led by the appellant and seized by the police vide Ext. 9, the seizure memo. Manoj Gogoi produced one dao which was seized by police vide Ext 6, the seizure memo. The police also seized one camera from the police photographer at the police station vide Ext. 11, the seizure memo. The appellant made his confession when he was confined in the police lockup. 18. P.W. 9 is Shri Niren Baruah. His evidence is that on 16th of August, he came to know that Tarju died and his dead body was thrown under the bridge No. 9 of Kehang Tea Estate. On receipt of the said information, he went to the house of the deceased. He enquired about the incident from the deceased's wife Smt. Paranu Gogoi. His evidence is that on 16th of August, he came to know that Tarju died and his dead body was thrown under the bridge No. 9 of Kehang Tea Estate. On receipt of the said information, he went to the house of the deceased. He enquired about the incident from the deceased's wife Smt. Paranu Gogoi. In reply, Paranu stated that on 14.08.2012, Tarju had come back from the market along with some meat which remained unsold and then he sent the meat to his brother's house. Thereafter, Tarju assaulted her, broke off the gas burner and then left home with a dao in hand. At around 7.00-7.30 pm, the police of Bordubi PS came and took away the appellant to the police station for interrogation. On 17th August, they took back the dead body after post-mortem examination and performed the last rites of the deceased. The appellant confessed to the commission of murder of Tarju before the police and thereafter, police put him in the lock-up. Police seized a dao by Ext. 6, the seizure memo; and some clothes by Ext. 9, another seizure memo; and also one mini DVD by Ext. 8, the seizure memo. The police seized one broken hand brake of motor cycle by Ext. 7, the seizure memo. In cross-examination, he, inter-alia, stated that at the time of making the confession by the appellant, the police personnel were on uniform at the police station and the appellant was in the lock up. The dao was seized from the brother of the deceased namely, Manoj. 19. P.W. 10 Shri Dibyajyoti Mahanta is the photographer, who took the photographs of the dead body and the process of seizure of the articles. His version is that one accused person had accompanied him and others and led to recovery of one trouser and one sporting (T-shirt) from the bank of a pond which he photographed. The CD of the camera was seized by the police by Ext. 8, the seizure memo. He recognised Mat. Ext. 1, the sealed cover containing one mini DVD cassette and Mat.Ext. 3, the seized jeans pant. 20. P.W. 11, S.I. Prafulla Kataky is the investigating officer. The CD of the camera was seized by the police by Ext. 8, the seizure memo. He recognised Mat. Ext. 1, the sealed cover containing one mini DVD cassette and Mat.Ext. 3, the seized jeans pant. 20. P.W. 11, S.I. Prafulla Kataky is the investigating officer. His evidence is that on receipt of a telephonic message from one Suresh Nayak, on 16.08.2012, to the effect that a headless dead body of a male person was found in Kehang Tea Estate, Bordubi P.S., G.D. Entry No. 227, dated 16.08.2012, was made and the Officer-In-Charge accompanied by him rushed to the place of occurrence for investigation. At the place of occurrence, he prepared three inquest reports vide Exts. 2, 3 & 4 and also prepared Ext. 12, the sketch map of the place of occurrence and then forwarded the dead body to the Civil Hospital, Tinsukia, for post-mortem examination. On the same day, at around 6.00 pm, Manoj Gogoi lodged the written FIR vide Ext. 10. In course of investigation, he seized one motorcycle by Ext. 5, the seizure memo and one dao, on being produced by Manoj Gogoi. He also arrested the appellant and the deceased's wife. Further, I.O seized one broken hand brake by Ext. 7, the seizure memo. The appellant confessed to killing of the deceased. He recorded the leading to discovery statement of the appellant vide Ext. 13. He recognised Ext. 14, the statement of the appellant pertaining to the recovery, at the instance of the appellant. After completion of investigation, he laid the charge-sheet vide Ext. 15. 21. In cross-examination, the I.O., inter-alia, deposed that no DNA test was performed regarding the dead body of the deceased as the head of the dead body was in decomposed condition. The dead body was identified by the deceased's brother Manoj Gogoi and his wife Smti. Paranu Gogoi. He admitted the defence suggestion that since the appellant refused to confess, he was not forwarded to the court to get his confessional statement recorded. He did not make any attempt to ascertain the registered ownership of the seized motorcycle. 22. The dead body was identified by the deceased's brother Manoj Gogoi and his wife Smti. Paranu Gogoi. He admitted the defence suggestion that since the appellant refused to confess, he was not forwarded to the court to get his confessional statement recorded. He did not make any attempt to ascertain the registered ownership of the seized motorcycle. 22. The learned court below appreciating the evidence led by the prosecution found sufficient incriminating circumstances as recorded in Para.-27 of the impugned judgment, against the appellant, which are herein below extracted; "(i) while the accused Chakradhar was in custody of the police after his arrest, he made a confession that he had killed the deceased Tarju Gogoi. This confession was made in presence of police and a crowd of persons. The fact regarding the confession made by the accused Chakradhar in the Police Station has been deposed to by PW-5, PW-7, PW-8, PW-9 & PW-11. (ii) P.W-5 Sri Raju Gogoi in his deposition stated that on 14.08.2012, his elder brother Tarju Gogoi had gone out with Chakradhar and when he did not return, he asked Chakradhar and Chakradhar told him that he had left his brother on the way. P.W-6 Smt. Sushila Gogoi also deposed that both Tarju and Chakradhar had gone to the market and while Chakradhar returned, Tarju did not. (iii) Vide Ext. 6, the police had seized one dao which was given by the brother of the deceased Manoj Gogoi. This dao was earlier given to Manoj Gogoi by the accused Chakradhar. The dao was seized in the presence of Sri Manoj Gogoi (P.W-7) and Sri Sunit Chutia(P. W-8). (iv) Vide Ext. 9, the police recovered a T-shirt and a pant from near a pond upon showing by the accused Chakradhar. The seizure was made in the presence of Manoj Gogoi (P.W-7), Sunit Chutia (P.W-8) and Niren Borah (P.W-9)." 23. The learned court below rejected the confession of the appellant allegedly made at the police station in absence of a Magistrate, being hit by Section 26 of the Evidence Act. The seizure was made in the presence of Manoj Gogoi (P.W-7), Sunit Chutia (P.W-8) and Niren Borah (P.W-9)." 23. The learned court below rejected the confession of the appellant allegedly made at the police station in absence of a Magistrate, being hit by Section 26 of the Evidence Act. Placing reliance on the evidence of P.Ws 5 & 6, the learned court below held the opinion that the Last Seen Together Theory is applicable to the case for the reasons recorded in factual circumstances (ii) above and recovery of the dead body of the deceased, soon after the deceased and the appellant were seen in the market and further, recovery of the dao vide Mat. Ext-4, as well as recovery of clothes at the instance of the appellant, which in the opinion of the learned court below completed the chain of incriminating circumstances unerringly pointing to the guilt of the appellant. 24. Ms. M.D. Choudhury, learned counsel appearing for the appellant vehemently submitted that in the instant case, the chain of circumstantial evidence set up by the prosecution side is completely missing as none of the circumstances so set up has been proved attributing complicity of the appellant in the commission of the murder of Tarju and as such, the impugned judgment and order of the learned Court below convicting the appellant is not sustainable in law. According to Ms. Choudhury, the Last Seen Together Theory is not applicable to the instant case as the time gap between the point of time when the appellant and the deceased were seen last alive in the market and when the deceased was found dead at a different place located at a distance after more than 2 (two) days, the possibility of the appellant as the author of the crime becomes impossible. The aforesaid presumption is strengthened by the fact that the evidence led by the prosecution is overwhelmingly contradictory in their inherent value and the variations being material in nature, the benefit of the same should go to the appellant. According to Ms. Choudhury, the identity of the dead body is also not established beyond doubt as no DNA test was done to establish this material aspect in the prosecution evidence and that when the co-accused, the wife of the deceased is acquitted of the charges, there was no justification to hold the appellant guilty of the charges. 25. Per contra, Mr. Choudhury, the identity of the dead body is also not established beyond doubt as no DNA test was done to establish this material aspect in the prosecution evidence and that when the co-accused, the wife of the deceased is acquitted of the charges, there was no justification to hold the appellant guilty of the charges. 25. Per contra, Mr. K. Konwar, learned Additional Public Prosecutor, submitted that there is ample incriminating evidence on record and particularly in the deposition of P.Ws 7, 8 & 9, which is reinforced by the disclosure statement of the appellant/accused, which clearly establish the complicity of the appellant in the commission of the alleged offence. The aforesaid presumption is further strengthened by the fact that the defence has failed to explain by way of cross-examination of the P.Ws and the appellant/accused in his statement under section 313 Cr.P.C. on this aspect. Mr. Konwar further submitted that the evidence of P.W. 1, the autopsy surgeon and Ext. 1, the post mortem examination report clearly establish the dastardly act of murder of the deceased. According to Mr. Konwar, as there is no material contradictions in the evidence tendered by the prosecution witnesses, their evidence should be relied on to hold that the learned Court below rightly convicted the appellant for intentionally causing the death of Tarju Gogoi, whose corpse was identified by his brothers and wife and when the doctor's (P.W. 1) evidence clearly supported matching of the head with the trunk of the dead body. 26. The FIR dated 16.08.2012 vide Ext. 10, lodged by P.W-7, Manoj Gogoi did not reveal the name of the assailant of the deceased obviously as there was no eye-witness to the occurrence but, simply informed the Bordubi P.S about recovery of a headless body of a human being, which he identified to be of his brother Tarju, who had remained untraced from the night of 14.8.2012. 10, lodged by P.W-7, Manoj Gogoi did not reveal the name of the assailant of the deceased obviously as there was no eye-witness to the occurrence but, simply informed the Bordubi P.S about recovery of a headless body of a human being, which he identified to be of his brother Tarju, who had remained untraced from the night of 14.8.2012. From the evidence of P.W. 2, Suresh Nayak, who is the Secretary of Asom Chah Mazdur Sangh, Kehang Tea Estate Chapter, it appears that after confirming recovery of a headless dead body under the culvert of Section-8 of Kehang Tea Estate, he reported the occurrence to the Bordubi PS, over phone, and accordingly, as stated by P.W. 11, Prafulla Kakoty, the I.O., Bordubi P.S., G.D. Entry No. 227, dated 16.08.2012, was entered as required under Section 154 Cr.P.C before receipt of the written FIR vide Ext. 10 on the same day. The evidence of PW11, the I.O, reveals that based on the GD Entry aforementioned, the police launched the investigation as per requirement of Section 157 Cr.P.C. In Animireddy v. Public Prosecutor, reported in (2008) 5 SCC 368 , the Supreme Court held that where the I.O was informed about commission of a cognizable offence, a report to that effect might be noted in the G.D. but the same may not be treated as FIR in all cases. Therefore, although the prosecution has not exhibited the extract of the aforesaid G.D. Entry, the aforesaid omission shall in no way stand in the prosecution story of the case, when the informant namely, P.W. 2 Suresh Nayak, in his evidence stated about such giving of information to the police, which the defence has not contested in his cross-examination and therefore, in the fact situation, Ext. 10, the FIR can well be relied upon as FIR in the case, because characteristically both the information were same in nature where, the identity of the miscreant was not identified, but disclosed only the commission of the cognizable offence of apparent murder, which turned out to be true immediately in investigation. 27. In the instant case, it appears that the whole prosecution case rests on circumstantial evidence as there was no eye-witness to the occurrence. 27. In the instant case, it appears that the whole prosecution case rests on circumstantial evidence as there was no eye-witness to the occurrence. There is no dispute that Tarzu Gogoi met with culpable homicidal death and that the assailant had hacked him to death severing his head and throwing the head to a canal of the tea garden. The cumulative effect of the oral testimony of the prosecution witnesses inclusive of the medical evidence (P.W.1) and the contents of the inquest reports vide Exts. 2, 3 & 4 prepared by the I.O. (P.W.11), clearly lead to the only inference that the cause of death of Tarju Gogoi was 'culpable homicide', defined in Section 299, which amounted to 'murder' defined in Section 300 and punishable Under Section 302 of the IPC. In the case of the State of U.P v. Dr. Ravindra Prakash Mittal, reported in (1992) 3 SCC 300 , the Supreme Court laid down the essential ingredients to prove guilt of an accused by circumstantial evidence. The Supreme Court observed that to prove guilt of an accused by circumstantial evidence, the prosecution must establish-(i) the circumstances from which the conclusion is drawn should be fully proved; (ii) the circumstances should be conclusive in nature; (iii) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (iv) the circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused. 28. For better appreciation of the circumstantial evidence, delineated through the prosecution witnesses, let us examine each of such circumstances. 28.1. Firstly, the evidence of P.W. 5, Raju Gogoi, brother of the deceased, P.W. 8, Sunit Chutia, P.W. 9, Niren Baruah and P.W. 11, S.I. Prafulla Kakoty, the I.O., as a whole, reveal that the appellant, after his arrest on the night of 16.08.2012, confessed to killing of the deceased Tarju Gogoi, before the police and the people present at Bardubi P.S., while he was kept confined in the police lock-up, inasmuch as he was maintaining illicit relationship with his co-accused Smti. Paranu Gogoi, wife of the deceased (since acquitted). Paranu Gogoi, wife of the deceased (since acquitted). Such a confession made by the accused while in the custody of the police is not admissible under Section 26 of the Evidence Act, and more so, when P.W. 11, the I.O., admitted the defence suggestion that since the appellant refused to confess, he was not forwarded for recording this piece of material circumstantial evidence. Therefore, this circumstance is held not proved beyond reasonable doubt. 28.2. Secondly, P.W. 5 Raju Gogoi, brother of the deceased and P.W. 6 Sushila Gogoi, aunt of the deceased, stated that on 14.08.2012, the deceased Tarju Gogoi accompanied by the appellant went to the market on a motorcycle and the appellant returned, while the deceased did not return home. According to P.W. 5, on enquiry, the appellant said that he had dropped Tarju, on the way. He (P.W. 5) denied the defence suggestion that he did not state in his statement U/S. 161 Cr.P.C. that his brother Tarju and the appellant had gone to the market to sell meat and he did not know, whether they returned home. It is apparent on evidence that both the deceased Tarju and the appellant jointly dealt in meat selling business in the market and the appellant used to stay in the house of the deceased. Therefore, their evidence of going to the market together on 14.8.2012 cannot be an unusual conduct, which is to be looked with suspicion. This entire episode as emerged from their (P.Ws 5 & 6) evidence is completely clouded by the evidence of P.W. 9, Niren Boruah, an independent witness, who stated that on enquiry, the deceased's wife Smti. Paranu Gogoi stated that on 14.08.2012 Tarju came back from the market and thereafter, he assaulted her, broke off the gas burner and left home taking a dao in hand. In view of the aforesaid material contradictions in evidence, the mere abundance of evidence that the dead body of Tarju was recovered on 16.08.2012, after 2(two) days of his missing, on 14.08.2012, with his head severed and sustaining other multiple injuries, in our view, cannot lead to an irresistible conclusion that it was the appellant and no other person, who committed the murder of Tarju. Therefore, in our opinion, the Last Seen Together Theory cannot safely be applied to the facts and circumstances of the instant case and as such, it is held this theory not proved beyond all reasonable doubt. 28.3. Thirdly, so far the disclosure statement of the appellant before the police leading to discovery of certain incriminating articles vide Ext. 13 is concerned, we feel it apposite to extract the said purported disclosure statement, which reads as follows: "Statement of Accused Statement of accused Sri Chakradhar Buragohain @ Putu S/o. Binod Buragohain of Habichuck Gaon, P.S. Bordugi, Recorded U/S. 161 Cr.P.C. in connection with Bordubi P.S. Case No. 55/12 U/S. 302/201 I.P.C. My name and address are given above. I am aged 20 years. I deal in pork. I reside in the house of Tarju Gogoi of village Dahotia and do the business together with him. I have a love affair with Paranu Gogoi, W/O Tarju Gogoi. Having seen us in bad condition/compromising/illicit condition, Tarzu Gogoi used to beat his wife. Hence, we both had a discussion with regard to killing of Tarju Gogoi. In the morning, on 14.08.2012, Tarju Gogoi and I went to Bahadur Chariali to sell pork. We went by motorcycle having Registration No. AS23D-3342 belonging to Tarju Gogoi. After selling pork we came back to the home at 9:00 PM from he market along the road passing through Kehang Tea Estate. Tarju was riding the motor cycle and I was riding pillion. Sri Manoj Gogoi, brother of Tarju Gogoi also used to sell pork at Bahadur Chariali market. After selling pork, he asked me to bring the dao with which he cut the pork to our house to keep it there and accordingly 1 brought it. When we reached the middle of the tea estate, I said that I had to attend nature's call (urinate) where upon Tarju stopped the motorcycle and I got off the motorcycle and hacked him in his head several times with the dao remaining in my hand. Then Tarju Gogoi fell down on the road from the motorcycle. I immediately cut/severed the head and threw it into Kehang Tea Estate, cut/tore the sporting (Tshirt) and the pair of trousers in which he was clad, with the dao and dragged the remaining part of the body to a pool of the garden and kept it inserted into the pool. I immediately cut/severed the head and threw it into Kehang Tea Estate, cut/tore the sporting (Tshirt) and the pair of trousers in which he was clad, with the dao and dragged the remaining part of the body to a pool of the garden and kept it inserted into the pool. As the motorcycle fell down a part of the brake lever of right side got broken. I brought the motorcycle and the shirt and pant of Tarzu along the Baraipuli road and threw the shirt and pant near a pond beside the road at a distance from the oil pool. I came to the house with the dao. I washed the blood sticking to the dao well and kept it on the raised platform outside the house On 15.8.2012, Manoj Gogoi took away his dao. The dao which Manoj Gogoi has handed over to the P.S. today is the one with which I killed Tarju Gogoi. Upon being interrogated by police in presence of witnesses, I confessed the offence. When I told that I would show the pant and sporting (T-shirt) at the place where I threw them, police told that the witnesses and they would go there as it is night. R.O. & A.C. Sd/- Prafulla Kotoki, S.I. P.S. Bordubi Dated: 17.08.2012" 29. It needs to be borne in mind that no confession made to a police Officer can be legally proved against any person accused of commission of an offence, but this rule is subject to the exception provided in Section 27 of the Evidence Act. To speak it differently, when any fact is deposed to as discovered in consequence of information received from a person accused of commission of any offence in the custody of police, so much of the information, even if it amounts to a confession, as relates distinctly to the facts discovered thereby is legally admissible in evidence. In Lohit Kanshal v. State, reported in (2011) 1 SCC(Cri) 1955, Supreme Court observed that disclosure statement is made to the police and as such, its admissibility is based under Sections 25 and 26 except for its limited use under Section 27 of the Evidence Act and that too, only against the person making the statement. In Lohit Kanshal v. State, reported in (2011) 1 SCC(Cri) 1955, Supreme Court observed that disclosure statement is made to the police and as such, its admissibility is based under Sections 25 and 26 except for its limited use under Section 27 of the Evidence Act and that too, only against the person making the statement. Therefore, in the above purported disclosure statement of the appellant that he would show the pant and sporting (T-shirt) which where concealed is admissible, because the same related to subsequent discovery of clothes of the deceased from that very place allegedly pointed out by the appellant. In appreciating the above disclosure statement of the appellant, we feel it apposite to look at the testimony of the prosecution witnesses. 30. The evidence of P.W. 11, Prafulla Kakoty, the I.O., reveals that the appellant made the above disclosure statement after he was arrested on 17.08.2012, and further, pursuant thereto, on the following day, that is on, 18.08.2012, at around 9:15 am, he (P.W. 11) along with the appellant, P.W. 7, Manoj Gogoi, P.W. 8, Sunit Chutia, P.W. 9, Niren Boruah and PW. 10, Dibyajyoti Mahanta went to the bank of a pond located on the side of the road, leading to Sripuria and Morankhari villages and on being pointed out by the appellant, the police seized one pant (trouser) and one sporting (T-shirt), which belonged to the deceased by Ext. 9, the seizure memo. His (P.W. 11) evidence further reveals that after seizure of the articles, mentioned above, the statement of the appellant vide Ext. 14 was recorded to that effect. P.Ws 7, 8, 9 & 10 have corroborated the aforesaid discovery of fact at the instance of the deceased and he recognised the relevant Exts. 7, 8, & 9, the seizure memos and P.W. 10, the police photographer recognised Mat. Ext. 2 and Mat. Ext. 3, the seized articles namely, the Mini DVD cassette and clothes respectively. The prosecution, however, omitted to exhibit the seized materials to the relevant witnesses, namely, P.W. 7, brother of the deceased, P.W. 8 and P.W. 9 for identification, who could best say, whether those articles belonged to the deceased. The pertinent question that arises is whether these seized materials indicate beyond reasonable doubt that the appellant had really killed the deceased? The prosecution, however, omitted to exhibit the seized materials to the relevant witnesses, namely, P.W. 7, brother of the deceased, P.W. 8 and P.W. 9 for identification, who could best say, whether those articles belonged to the deceased. The pertinent question that arises is whether these seized materials indicate beyond reasonable doubt that the appellant had really killed the deceased? In this context, the recovery of those incriminating articles and their evidentiary value have to be considered in the light of the other relevant circumstances as well and the chain of the events suggesting the complicity of the appellant in the offence. Because, in criminal proceeding, burden lies on the prosecution to establish a close link between discovery of the material objects and their relation in the commission of the offence. 31. The learned Court below was of the opinion that the entire process of recovery of clothes on being led and pointed out by the appellant, which was videographed by P.W. 10, the police photographer, was one of the relevant incriminating circumstances against him. However, on close scrutiny of the evidence of the P.Ws, and as observed above, the two other alleged incriminating circumstances set up by the prosecution have not been established beyond reasonable doubt. Surprisingly, the learned Court below did not afford the appellant any opportunity to explain the aforesaid relevant circumstances appearing in evidence against him, yet placed reliance upon these circumstances including the purported disclosure statement of the accused to hold him guilty of the charge of murder, which is not permissible in law. Apart from that, the prosecution has failed to link the disclosure statement to the commission of the offence in as much as there is no evidence ruling out the possibility of any person other than the appellant himself, who really concealed those recovered materials at the place. In such intricate factual situations, the appellant could have offered his explanation to the aforesaid circumstances; however, no opportunity was given to him while recording his statement under Section 313 of the Cr.P.C. On the other hand, P.W. 11, the I.O., in his evidence stated that he did not ascertain during investigation whether those seized clothes were worn by the deceased at the time of his death. The I.O. did not even ascertain who was the owner of the damaged seized motorcycle vide Mat. Ext. 7. Further, the I.O., seized one dao vide Mat. The I.O. did not even ascertain who was the owner of the damaged seized motorcycle vide Mat. Ext. 7. Further, the I.O., seized one dao vide Mat. Ext. 4 allegedly used in the commission of the offence. The evidence on record does not show that those seized allegedly incriminating articles inclusive of the dao were forwarded to the Forensic Science Laboratory (FSL) for chemical examination for the purpose of ascertaining link of those articles to the offence. Therefore, we are of the opinion that none of the aforesaid circumstances and the motive of eliminating the deceased to facilitate any extra-marital relation between his wife and the appellant delineated through prosecution evidence being proved beyond reasonable doubt, the appellant cannot be held guilty of murder of Tarju Gogoi and as such, his conviction cannot be based on the mere circumstance of disclosure statement of the appellant leading to discovery of fact Vide Exts. 13 & 14, without offering opportunity to him to explain those circumstances. 32. Before parting with the record, we are tempted to place our opinion that when the case rests on circumstantial evidence, every piece of circumstantial evidence tending to incriminate the accused should be pointedly brought to his notice by the Court in his statement, recorded under Section 313 of the CrPC, and unless such circumstance appearing in evidence against the accused is brought to his notice, the same cannot be used against him. We have noticed that the appellant was not even asked whether he wanted to examine any witness in his defence, in his statement recorded under Section 313 of the CrPC. The totality of the evidence on record shows that there is no cogent and convincing evidence to infer that the appellant committed murder of Tarju beyond doubt. 33. Further, it is well settled that when two views are possible, one going in favour of the prosecution and another in favour of the accused, the view that goes in favour of the accused should normally be accepted. 34. Be it mentioned that in Asish v. State, reported in (2002) 7 SCC 317 , Supreme Court held that the accused is presumed to be innocent till charges against him are proved beyond doubt. The court ruled that suspicion, howsoever strong it may be, is not sufficient to bring home the guilt of the accused. 35. 34. Be it mentioned that in Asish v. State, reported in (2002) 7 SCC 317 , Supreme Court held that the accused is presumed to be innocent till charges against him are proved beyond doubt. The court ruled that suspicion, howsoever strong it may be, is not sufficient to bring home the guilt of the accused. 35. Consequently, we are of the opinion that the prosecution has miserably failed to prove the charges brought against the appellant under Sections 302/201 of the IPC beyond all reasonable doubt and therefore, the impugned Judgment and order dated 27.8.2013, passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 280(T)/2012 is hereby set aside and accordingly, the appellant is acquitted of the charges and set at liberty forthwith. The appeal stands allowed. Send back the LCR along with a copy of this Judgment and order.