Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 463 (GAU)

Ananta Hazarika v. State of Assam

2019-04-10

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

body2019
JUDGMENT : A.M. Bujorbarua, J. 1. Heard Mr. K.A. Mazumdar, learned amicus curiae for the appellant and Mr. M. Phukan, learned Addl. P.P. for the State of Assam. 2. An ejahar dated 10.02.2014 was lodged by one Manoranjan Bora, son of Bhabesh Bora, stating that at about 11 AM on the given date, his neighbor Bijit Bora had informed over phone that something had happened to his elder sister. Thereafter he went to the house of his elder sister at Kachagoral and saw her dead body lying on the floor of the room. Upon enquiry, the neighborhood people replied that they did not know anything about the incident. In the ejahar, the informant stated that he suspected that his brother-in-law Ananta Hazarika had killed his elder sister. 3. The informant Manoranjan Bora while deposing as PW-1 stated that there were frequent demand of dowry money from the elder sister and she was threatened by the accused/appellant to go an bring money from her parents. It was also deposed that there were frequent quarrels between the accused and the deceased. The witness reiterated the statement made in the ejahar that he came to know about the incident from one Bijit Bora over phone that something had happened to his elder sister and therefore he was required to go there. Upon receiving the information, he along with his father went to the residence of the accused and saw the dead body of his elder sister. It was also deposed that upon enquiry the villager replied that they were ignorant about the matter. The witness stated that he only suspected that the accused brother-in-law had committed the offence. In cross, the witness stated that the accused had visited his residence prior to the occurrence and the accused and his elder sister were seen in the shop premises off and on. He further stated that he had filed the ejahar only on suspicion. 4. PW-2, Anjana Hazarika, who is also a neighbor, stated that the accused had a shop which was looked after both by the accused as well as the deceased. In cross, the said witness also stated that there was a cordial relation between the accused and the deceased and the shop which was located in their compound was looked after by both of them. 5. In cross, the said witness also stated that there was a cordial relation between the accused and the deceased and the shop which was located in their compound was looked after by both of them. 5. PW-4, Ankur Hazarika, the son of the deceased also stated that there was a cordial relationship between his parents, although, off and on for petty incidents quarrel used to take place between them. In cross examination also, PW-4 reiterates that there was cordial relationship between his parents and no quarrel took place between them on the date of the occurrence before he left for his school. 6. Based on the aforesaid evidence, learned Sessions Judge, Jorhat in its judgment dated 25.07.2016 in Sessions Case No. 58 (J-J)/2016 had convicted the accused/appellant under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 10,000/-, in default thereof, a further imprisonment for three months. Learned Sessions Judge relied upon the proposition laid down by the Supreme Court in Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 , wherein in paragraph-12, it was held as follows: "12. In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence." 7. Although, several other decisions had been cited, mainly with regard to circumstantial evidence, but the learned Sessions Judge had not discussed any of the law and it appears to us that the conviction meted to the accused/appellant was based upon the proposition laid down in Trimukh Maroti Kirkan (supra) as it was understood that the accused in ordinary course would have been present with the deceased and therefore the burden shifted to the accused to explain as to under what circumstances the occurrence had taken place. We accordingly, go through the evidence of the prosecution witnesses, but from none of the evidences, we can infer that the accused was present in the house along with the deceased when the occurrence had taken place. We also take note that the time of the occurrence was at 11 AM in the morning and therefore a presumption also cannot be made that in ordinary course, the accused would have been together with the deceased when the occurrence took place. 8. The whole foundation of the principle laid down in Trimukh Maroti Kirkan (supra) is that accused and the deceased were together at the time when the occurrence had taken place and as in the present case the conviction is based solely on the principle laid down in Trimukh Maroti Kirkan (supra), and further as we are unable to find any material to conclude that the accused was along with the deceased at the time when the occurrence had taken place, we are not inclined to accept the finding of the learned Sessions Judge. We also do not find any material on record to indicate that there was any circumstantial evidence against the accused/appellant with a complete chain of event so as to implicate him in the offence of causing death of the deceased. 9. Accordingly, the conviction of the accused/appellant Ananta Hazarika, son of Late Bap Hazarika under Section 302 IPC in the judgment and order dated 25.07.2016 by the learned Sessions Judge, Jorhat in Sessions Case No. 58 (J-J)/2014 is set aside. The accused/appellant is accordingly set at liberty forthwith, provided if not required in any other case. 10. The jail appeal accordingly stands allowed. 11. Appreciating the assistance rendered by Mr. K.A. Mazumdar, learned Amicus Curiae, it is directed that he be paid Rs. 7500/- for the assistance rendered by him, on furnishing of a copy of this judgment. 12. The accused/appellant is accordingly set at liberty forthwith, provided if not required in any other case. 10. The jail appeal accordingly stands allowed. 11. Appreciating the assistance rendered by Mr. K.A. Mazumdar, learned Amicus Curiae, it is directed that he be paid Rs. 7500/- for the assistance rendered by him, on furnishing of a copy of this judgment. 12. Send down the LCR.