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2019 DIGILAW 1139 (GAU)

Muhi Gogoi v. State of Assam

2019-10-21

MANISH CHOUDHURY, MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. This appeal is directed against the judgment and order dated 06.06.2017 passed by the learned Additional Sessions Judge, Golaghat, in Sessions Case No. 30/2016. By the said judgment, the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 2000/- with default stipulation. 2. As per the prosecution case, on 16.8.2016, the victim, wife of the informant went out from the house, to attend an interview and she did not return. On the next day, at about 7.30 AM, an youth informed the husband of the victim, that the body of his wife was lying at Kachugaon by the side of the road with multiple injuries. Immediately he arrived at the place of occurrence and found the body of his wife with multiple cut injuries. Police also came and seized the scooter, which was used by the victim. A formal FIR was lodged by PW-1, the husband of the victim, on the basis of which, police registered Golaghat P.S. Case No. 638/2016 under Section 302 IPC and on completion of the investigation, submitted charge sheet against the appellant. 3. In course of trial, charge under Section 302 IPC has framed against the accused, which was abjured by the appellant. In order of bring home the charge, prosecution examined as many as 8 witnesses including the doctor, who conducted the postmortem examination and on appreciation of the evidence, learned Sessions Judge, convicted the appellant under Section 302 IPC and awarded sentence as indicated above. 4. Aggrieved by conviction and sentence, the accused/appellant, has preferred the instant appeal. 5. We have heard Mr. T.J. Mahanta, learned Sr. Counsel, assisted by Ms. P. Bhattacharjee, learned counsel for the appellant and Ms. S. Jahan, learned Addl. P.P., Assam for the respondents. 6. Learned Sr. Counsel, Mr. T.J. Mahanta, assailing the impugned judgment vehemently submits, that though, the learned Sessions Judge convicted the accused/appellant solely relying on the two circumstances, viz. 5. We have heard Mr. T.J. Mahanta, learned Sr. Counsel, assisted by Ms. P. Bhattacharjee, learned counsel for the appellant and Ms. S. Jahan, learned Addl. P.P., Assam for the respondents. 6. Learned Sr. Counsel, Mr. T.J. Mahanta, assailing the impugned judgment vehemently submits, that though, the learned Sessions Judge convicted the accused/appellant solely relying on the two circumstances, viz. enmity and the alleged recovery of the weapon of offence under Section 27 of the Evidence Act, there was no evidence on record to connect the weapon purportedly recovered at the instance of the appellant, with the commission of the offence, more particularly, for the reasons, that the weapon was not sent for chemical examination, which only, could have provided necessary materials to link the weapon with the commission of the offence. To buttress his submission, Mr. Mahanta relies on the following decisions: 2019 (4) SCJ 545 (Kusal Toppo & Ors. Vs. State of Jharkhand) 1996 (3) GLT 533 : 1996 3 GLR 27 (Nasir Ahmed Vs. State of Assam) 2011 (3) GLT 167 (Madan Malakar Vs. State of Tripura) 7. Learned Additional Public Prosecutor contends that the prosecution case cannot be thrown away for the lapses on the part of the investigating officer, in not sending the weapon of offence for chemical examination. We take note of the submissions made by the learned counsels. 8. PW-7, Dr. Bhaskarjyoti Kheria, who conducted the autopsy, found the following injuries on the body of the victim. In the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of injuries sustained by the deceased. "Dead body of a female, fair complexion, eyes and mouth closed. Rigor morris present. External appearance. There were four penetrative wounds:- (i) Wound on left of the abdomen, measuring 2 X 2 X 10 cm, (ii) Wound on right side of the loin region, measuring 2 X 2 X 10 cm, (iii) Wound on the back left scapular region, measuring 4 X 2 X 15 cm, (iv) Neck laceration, measuring 3 X 2 X 2 cm, Bruise on left elbow. Abdomen: Two penetrative wounds piercing the peritoneum and intestine. Blood clot seen over the abdominal cavity. Thorax: Laceration on the left side-back. Other organs were healthy. All the findings were ante mortem in nature. Abdomen: Two penetrative wounds piercing the peritoneum and intestine. Blood clot seen over the abdominal cavity. Thorax: Laceration on the left side-back. Other organs were healthy. All the findings were ante mortem in nature. Time since death was less than 36 hours." In the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of injuries sustained by the deceased. 9. The factum of homicidal death of the deceased has not been disputed in the instant case. The only question, who was the perpetrator of the offence? Evidently, there is no direct evidence or eye witness and the learned Sessions Judge basically relying on the circumstantial evidence, recorded the conviction of the appellant. The two circumstances relied by the learned trial court are the enmity between the parties and the alleged recovery of weapon of offence, learned trial court held asunder: "............In the instant case the circumstances have established enmity and recovery of incriminating weapon at the instance of the accused. I find that all the links in the chain are complete pointing to guilt of the accused." 10. Law is well settled as regards the nature and standard of evidence required for establishing the commission of any offence, which rest solely on the circumstantial evidence. The Apex Court in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 dealing with the requirement of evidence to prove a criminal case resting on circumstantial evidence held as follows: "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 11. In Md. Arif Vs. State (NCT of Delhi) reported in (2011) 13 SCC 621 , held as follows: The law on the circumstantial evidence is, by now, settled. In Sharad Birdhichand Sarda Vs. State of Maharashtra [ 1984 (4) SCC 116 ], this Court drew out the following test for relying upon the circumstantial evidence:- "(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." The principle of this judgment was thereafter followed in number of decisions, they being Tanviben Pankaj Kumar Divetia Vs. State of Gujarat [ 1997 (7) SCC 156 ], State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru [ 2005 (11) SCC 600 ], Vikram Singh & Ors. Vs. State of Punjab [ 2010 (3) SCC 56 ], Aftab Ahmad Anasari Vs. State of Uttaranchal [ 2010 (2) SCC 583 ] etc. It is to be noted that in the last mentioned decision of Aftab Ahmad Anasari Vs. State of Uttaranchal (cited supra), the observation made is to the following effect:- "In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court..........." (Emphasis supplied) 12. In Madhu Vs. State of Kerala reported in (2012) 2 SCC 399 held as follows: "5. The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt." 13. It is therefore, trite law that in a case, which rest solely on the circumstantial evidence, prosecution must prove each and every circumstance independently and solidly beyond all reasonable doubt and the circumstances so proved, taken cumulatively must form a complete and unbroken chain, which leads to the inescapable conclusion, that it was none but the accused/appellant, who has committed the offence. In other words, chain of circumstances must be consistent only with the guilt of the accused and inconsistent with his innocence. 14. Keeping in view the above proposition, we now proceed to travel through the evidence brought on record to evaluate the credential of the circumstantial evidence, in order to ascertain, how far the prosecution has been able to establish the circumstances and the chain thereof. PW-2 Mridul Dowarah, testified, that upon receiving the information, he came to the place of occurrence and found the body of the victim lying near a ditch. PW-2 Mridul Dowarah, testified, that upon receiving the information, he came to the place of occurrence and found the body of the victim lying near a ditch. The police arrested the accused from his residence and on being shown by the accused, police also recovered a knife from the ditch and seized the same in presence of himself and other witnesses vide Ext. 6, the seizure list. During cross examination, it was elicited that he signed the Ext. 6 at the police station. The statement of this witness was also recorded by the Judicial Magistrate under Section 164 Cr.P.C., wherein he stated that on 17.08.2016, police arrived at the place of occurrence at about 11 to 12 O'clock and on the same day the accused was arrested and brought to the place of occurrence, where the body was lying. He further stated, that the police taking along the accused, recovered the knife, which was kept near a bamboo groves. 15. PW-3 deposed that the accused was arrested after two days of the occurrence. According to him, police called 5/6 persons including himself to the police station and asked them to talk to the accused over phone and when he called the accused over phone, the accused/appellant admitted the guilt and thereafter on the following day, police came and arrested the accused and on the basis of the statement made by the accused before police, a knife was recovered from near the bamboo groves. During cross examination, he stated that his signature was obtained in Ext. 6 on the night itself when it was recovered. He further stated that when he went to the police station on the next day on being called by police, they found the accused in the police station. What transpires from the oral testimony of this witness is that his evidence is self contradictory and mutually destructive. In the examination-in-chief he stated that before arrest of the accused they were called to the police station after two days of the occurrence and it was he, who talked to the accused at the instance of police and in the cross examination he stated that on the next day, when he went to the police station, he found the accused there. 16. PW-4 deposed that upon receiving the information, he came to Kachugaon Chariali and found the body of the victim lying there in a ditch. 16. PW-4 deposed that upon receiving the information, he came to Kachugaon Chariali and found the body of the victim lying there in a ditch. Police also arrived there. According to him, police seized the scooty belonging to the victim from under a bamboo groves. Thereafter, police went to the house of the accused and he also accompanied the police. According to him, on being asked by the police, the accused led them to a jungle at Kachugaon and on being shown by the accused, police recovered a knife and seized the same vide Ext. 6. This witness also stated that his signature in Ext. 6 was obtained at the police station. It was also elicited during cross examination that when he was called to the police station, PW-3, PW-4 and PW-6 were also there. 17. PW-6 deposed, that having come to know about the occurrence, he went to the place of occurrence and found the victim, whose leg was tied. According to him, at around 2 AM at night, the body of the victim was found. He came to the police station and found the accused there and police informed him that the accused/appellant was arrested in connection with the offence. After 3/4 days, when he again went to the police station, police showed him a knife and told that the same was used as weapon of offence by the accused. 18. PW-8, the Investigating Officer, deposed that he arrested the accused/appellant on 17.08.2016 at about 7.10 PM and produced him before the Magistrate on the next day i.e. 18.08.2017 and he was given in police custody for two days. During the police custody, on being led by the accused, the knife was recovered. According to the Investigating Officer, on 19.08.2016, during investigation, the accused disclosed that the knife used in the offence was under a bamboo groves near the place of occurrence. Accordingly, he recovered and seized the same vide Ext. 6. 19. On our assessment of the evidence of the PW-2, PW-3, PW-4, PW-6 and PW-8, we noticed that according to PW-8, recovery of the knife was made on 19.08.2016 on the basis of the disclosure statement made by the accused/appellant, whereas, the evidence of PW-2 and PW-4 demonstrates that the weapon was recovered on 17.08.2016 itself. The PW-3 has given a different version regarding the alleged recovery of the weapon. The PW-3 has given a different version regarding the alleged recovery of the weapon. Although, PW-8 deposed that he recovered the knife in presence of the witnesses, namely, PW-2, PW-3 & PW-4 and took their signature in the seizure list (Ext. 6), all these witnesses stated that they signed the seizure list at the police station, which again creates a doubt about the presence of the witnesses at the time of alleged recovery of the weapon. What is therefore transparent from the oral testimony of PW-2, PW-3, PW-4 & PW-8 is that all the attesting witnesses to the seizure list (the Ext. 6) stood contradicted with the PW-8, the Investigating Officer with regard to the date of recovery and seizure of the knife. We also take note of the fact, that the testimony of all these witnesses is not consistent as to the place where from the knife was recovered. In view of the above evidence, the very fact of recovery of the weapon at the instance or on being led by the accused appears to be shrouded under cloud of doubt. Therefore, in our considered opinion the recovery of the alleged weapon of offence, so as to bring it within the purview of Section 27 or Section 8 of the Evidence Act has not been proved beyond reasonable doubt. 20. Evidently, the alleged weapon of offence seized by police was not sent for chemical test. It is no doubt true, that the chemical test of the weapon of offence can provide the best evidence in a particular case, to link the weapon with the commission of the offence. However, failure of the police to send the weapon of offence for chemical examination may not be fatal in each and every case, more particularly, where there are other evidences to bring home the charges. But in a case, which rest solely on the circumstantial evidence and primary circumstance relied by the prosecution is the recovery of weapon, non-examination of the weapon for serological test is obviously fatal, inasmuch as, in absence of such examination, it would be difficult to link the weapon with the commission of the offence, which shall create a gap or break the chain of the circumstance. Therefore, in a case of circumstantial evidence, failure to send the weapon allegedly used in the crime, for chemical examination is fetal, reason being that in absence of such examination, the chain of circumstance would remain incomplete. The Apex Court in S.K. Yusuf Vs. State of West Bengal reported in AIR 2011 (SC) 2283 : (2011) 11 SCC 754 held that in case of circumstantial evidence, not-sending the weapon used, for chemical analysis is fatal for the reason that the circumstantial evidence may not lead to the only irresistible conclusion that the appellant was the perpetrator of the crime and none else and that in absence of any report of serologist as to presence of human blood on the weapon may make the conviction of the accused unsustainable. 21. Therefore, though, non-examination of the weapon by chemical expert for serological test may not be fatal in all cases, in the instant case, resting solely on the circumstantial evidence, where there is no other evidence to link the seized weapon with the commission of offence, non-examination of the weapon by chemical expert is fatal for the prosecution. Because, the failure of the investigating officer to send the weapon of offence for chemical examination deprived the prosecution of the link evidence to connect the seized weapon with the offence and thereby rendered the circumstantial chain broken and incomplete. 22. With regard to the enmity between the victim and the appellant, the evidence brought on record is that there was financial transaction between them and the appellant borrowed Rs. 42000/- from the victim, out of which he repaid Rs. 20,000/- and the relationship between them was strained because of such financial transaction. We find such evidence too fragile, to attribute extreme animosity, so as to prompt a person to commit murder. Be that as it may, even if we assume for the sake of argument, that the relationship between the victim and the accused was strained, that 'per se' without anything more is no sufficient to saddle the appellant with liability of the offence of committing murder. This apart, as already indicated above, the prime circumstances relating to the recovery of weapon relied by the trial Court has fallen through. 23. This apart, as already indicated above, the prime circumstances relating to the recovery of weapon relied by the trial Court has fallen through. 23. In view of the above facts and circumstances, we are of the firm view, that the prosecution evidence is grossly inadequate to prove the chain of circumstances, to enable the Court to come to an inescapable conclusion, that none else, but the accused was the perpetrator of the offence. Situated thus, we are unable to concur with the finding of the learned trial court. Accordingly, we set aside the impugned judgment of conviction and sentence of the appellant. 24. The appeal is allowed. The accused appellant be released and set at liberty forthwith, if not required in any other case. 25. Send down the LCR.