Judgment · High Court · 2012

Learned counsel for the appellant submitted that there is no suf 7. ficient evidence on record to convict the accused for the alleged commission of offence. Learned counsel for the accused further would point out that there were no eye witnesses to the occurrence and the circumstantial evidence is not suffi cient to hold that the accused was the author of the crime.

#8. To appreciate the submissions made on behalf of the respective p arties, we would like to discuss the core of the prosecution evidence.

#8. PW1, Sri Gokul Gogoi, who is the uncle of the accused, deposed t hat on being reported by his brother Jivon Gogoi that the accused had assaulted his wife with a hammer, they rushed to the house of the victim, carted the victi m to the hospital in an injured state, where the victim succumbed to her injurie s next morning. PW1 lodged verbal information to police before taking the victim to the hospital and after the death of the victim, they took the accused with t he hammer to police station and lodged the FIR. In cross, the accused admitted that the pull-cart in which the victim wa s taken to hospital had broken down on the road and the same was repaired by the hammer.

#9. PW2, Mrigendra Nath Gogoi, who is the village headman, deposed t hat on coming to know from some adolescent boys about the incident, he rushed to the house of the accused and saw the victim being carted to OIL hospital in an injured state by the accused and villagers, and then he reported the matter verb ally to police station. According to the witness, on being asked, the accused ha d admitted before the villagers and the police that under the influence of liquo r, he had assaulted his wife with a hammer. No other witness heard the accused c onfessing the guilt before the local persons while they were proceeding towards the police station. From the evidence of PW-2, it appears that the extra-judicia l confession was made by the accused in presence of the Police Officer. More so, the confessional statement made by the accused in presence of the police and vi llagers cannot be held to be admissible in evidence. In cross, the witness belied his own statement to say that he did not se e the incident; nor did he ask anything to the accused.

#10. PW3, Subal Gogoi, deposed that on coming to know about the incident, he came to the house of the accused and saw victim with her body scrambled into blo od-stained clothes being carted in an injured condition by the accused and villa gers, with the accused holding a hammer. In cross, the witness stated that he did not see the incident.

#11. ceased, found the following injuries on the person of the victim: PW4, Dr RK Gogoi, who performed a post-mortem on the dead body of the de (cid:28)1. One lacerated wound measuring 6 x 1 cm with depressed fracture of frontal bo ne, present on middle part of frontal area of the scalp found stitches.

#2. One lacerated wound measuring 5 x 1 cm with depressed fracture of ri ght frontal and temporal bone which are found with stitches.

#3. One lacerated wound measuring 2 x 1 cm muscle deep on right zygomati c area (cid:29). In the opinion of the medical officer, the death was caused due to coma resulting from head injury, and that all injuries were ante-mortem being caused by blunt force impact and homicidal in nature.

#12. PW5, who is the investigating officer of the case, deposed that on receipt of information about the incident from Sri Mrigen Nath Gogoi(PW2), th e officer-in-charge noted it down in the general diary, initiated investigation, arrested the accused, seized the hammer and, on completion of investigation, su bmitted the charge-sheet. In cross, the witness stated that the accused surrendered himself before the police station with the weapon of assault i.e. hammer which was seized by h im. PW-5 belied his above statement by stating in Ext-3 seizure list that the we apon of assault was seized by him on being han ded over by the Gaonbura of the v illage Sri Mrigendra Nath Gogoi but denied that while carrying the victim, the p ush cart was repaired with the help of the hammer that was seized from the posse ssion of the accused.

#13. From the evidence of the prosecution witnesses, it would appear that there had been no eyewitnesses to the occurrence. The victim had been carte d to OIL hospital by the accused and villagers. According to P.W.2 the accused m ade extra judicial confession before the villagers and the police by revealing t hat he had committed the crime under the influence of hooch. However, at the cos t of repetition we would say that such confession made by the accused in presenc e of the police cannot be said to be admissible.

#14. The accused, in his statement under section 313 CrPC, stated that when h e came home from tuition, he saw his wife being taken in a push cart by villager s and there he too accompanied the villagers. The deceased being the wife of th e accused is supposed to be in the company of accused before the incident how ever, accused took the plea that the he was not at home when the occurrence to ok place. When he came home, he saw the villager carting his wife to the Hospital in an injured condition. There is no eye witness to the occurrence. The prosecution has to establish the charge against the accused from the circumstantial evidence.

#15. So far as the last seen together aspect is concerned it is necessary to take note of the decisions of this court in State of U.P. v. Satish [2005 (3) SCC 114 in which it was noted as follows: \22. The last seen theory comes into play where the time-gap between the point o f time when the accused and the deceased were seen last alive and when the decea sed is found dead is so small that possibility of any person other than the accu sed being the author of the crime becomes impossible. It would be difficult in s ome cases to positively establish that the deceased was last seen with the accus ed when there is a long gap and possibility of other persons coming in between e xists. In the absence of any other positive evidence to conclude that the accuse d and the deceased were last seen together, it would be hazardous to come to a c onclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in ad dition to the evidence of PW-2.\ 16. In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it w as noted as follows: \27. The last-seen theory, furthermore, comes into play where the time gap betwe en the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a ca se the courts should look for some corroboration\. (See also Bodh Raj v. State o f J&K (2002(8) SCC 45).)\ .

#17. A similar view was also taken in Jaswant Gir v. State of Punjab [2005(12) SCC 438] and Kusuma Ankama Rao’s case (supra).

#18. In Sahadevan alias Sagadeval vs State, (2003) 1 SCC 534, the Apex Court h as held that that in a case of last-seen-together, it is obligatory on the part of the appellant to explain as to when and where he parted the company of the de ceased.

#19. In the case of circumstantial evidence, where evidence of the a ccused and the deceased having been last seen together before the murder is reli ed upon and there is failure of the accused to satisfactorily account for the de ath of the deceased, the circumstance of the deceased having been last seen aliv e in the company of the accused is to be considered as a circumstance of incrimi nating character. But in such cases where accused was last seen with the decease d and the role of accused is not explained by the prosecution, the very circumst ance that the deceased was last seen in the company of the accused ceases to be an incriminating character. In the instant case no conflicting - relationship has been esta 20. blished by the prosecution, in between the deceased and the accused and his pres ence during the occurrence at his house has not been brought on record by the pr osecution in the instant case. As against the statement of the accused that he r eached home after tuition, there no iota of evidence to from the side of the pro secution to show that the accused was at his residence just before the occurrenc e. Even assuming that no one else but the husband might alone be the culprits b ut incriminating acts will have to be attributed to the appellant-accused alone exclusively. This necessarily includes the possibility of the offence having bee n committed by any other person when the accused was not at home. If such a pro bability cannot be ruled out, the circumstance of the accused-appellant having b een with the deceased at the time of the occurrence by itself cannot be termed t o be a clinching circumstance bringing home the guilt to the accused, in the abs ence of efforts on the part of the prosecution to explain the role of the accuse d.

#21. On the nature, character and essential proof required in a criminal ca se which rests on circumstantial evidence alone, the Apex Court has noted in its judgment reported in Sharad Birdhichand Sarda Vs. State of Maharashtra: 1984 Cr iLJ 1738 that the most fundamental and basic decision of the Supreme Court in Ha numant Vs. State of Madhya Pradesh: 1953 CriLJ 129 and that this case has been u niformly followed and applied by the Supreme Court in a large number of latter d ecisions upto date. On close analysis of this decision in Hanumant’s case the Su preme Court then spelt out five golden principles, in their words constituting t he panchasheel of the proof of case based on circumstantial evidence. Sharad Sar da’s case, the Supreme Court then referred to its decision in Deonandan Mishra v . State of Bihar : 1955 CriLJ 1647 and laid down as follows, as to what was hel d by it in Deonandan Mishra’s decision : 22. It will be seen that the Apex Court while taking into account the absen ce of explanation or a false explanation did hold that it will amount to be an a dditional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz. before a false explanation can be us ed as additional link, the following essential conditions must be satisfied : (1) various links in the chain of evidence led by the prosecution have been sati sfactorily proved. (2) the said circumstance point to the guilt of the accused with reasonable defi niteness, and (3) the circumstance is in proximity to the time and situation.

#23. The Supreme Court then laid down that if these conditions are fulfilled only then a Court can use a false explanation of a false defence as an addition al link to bend an assurance to the Court and not otherwise. The Court further o bserved that there is a vital difference between an incomplete chain of circumst ances and a circumstance which, after the chain is complete, is added to it mere ly to reinforce the conclusion of the Court. Absence of plausible explanation by the appellant in the instant matter, in the circumstances, is of no use to the prosecution. It is well recognized that conclusion of culpability can be acceptable 24. only where all incriminating facts are found irreconcilable with innocence of ac cused. The instant one is not such a case. 25. e following circumstances clearly show that the accused committed the crime: From the above, we are required to examine whether it be deduced that th The accused, with a hammer in his hand, was seen accompanying the deceas i) ed while she was being carted in to hospital by the villagers. ii) r. iii) The witnesses had heard that the accused assaulted his wife with a hamme The accused, in the presence of police and PW2, confessed that he had co mmitted the crime under the influence of hooch. iv) y PW-2, the gaonbura of the village. with hammer in his hand. v) The death of the deceased was homicidal in nature. The accused appeared in the police station and the hammer was produced b The above circumstances do not clearly spell out that the accused is the author of the crime.

#26. The motive for the occurrence is also not established. There is noth ing on the record to show that there was at any time some kind of dispute with t he accused and his wife. 27. Unfortunately, there is no iota of evidence forthcoming from the prosecution evidence to prima - facie prove that the accused was at his residen ce when the occurrence took place.

#28. It is obligatory on the part of the appellant to explain as to when and where he parted the company of the deceased only when the prosecution p rima -facie establishes that the deceased was last seen in the company of the ac cused. 29. Jivon Gogoi, who initially reported the incident to PW-1 was not examined as witness. The occurrence took place in the evening and not at night. Therefore, viewing the occurrence from the angle of defence plea of the accused not being present at the time of occurrence, apparently two views may be possib le (1) whether favour the accused and the against the accused. In such a situati on also the accused is entitled to benefit of doubt.

#30. There is no corroboration of the facts sought to be established by the prosecution in the prosecution evidence (see Ramreddy Rajeshkhanna Reddy v. State of A.P.(Supra) . From the facts and circumstances established by the prose cution leaves a very wide gap keeping possibility of any other person other than the accused being the author of the crime. 31. On a consideration of the evidence of prosecution witnesses, we fin d that prosecution could not establish beyond all reasonable doubt that it is th e accused that had killed the victim with a hammer. Confusion and suspicion mult iplied by the prosecution cannot replace the requirement to establish the charge beyond all reasonable doubt. 32. It is in this view of the matter; we are not inclined to accept the fin ding recorded by the trial Court as against the accused-appellant. We, therefore , allow this Criminal Appeal filed by the accused-appellant from jail , set as ide the judgment and order of conviction as recorded by the learned Sessions J udge, against the accused as also the sentence imposed upon the appellant-accu sed and acquit the appellant accused of the offence with which he was charged. T he accused is reported to be in jail. He be set at liberty forthwith, if not req uired to any other case. 33. 34. For the assistance rendered by Mr MH Choudhury, learned amicus curiae, h e would be remunerated, which is quantified at Rs 4000/-(Rupees four thousand on ly) by the state. This Appeal consequently stands allowed. Send back the LCR.