THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. THE CENTRAL BUREAU OF INVESTIGATION & Ors.

prosecution has failed to prove the case. According to Mr. Bhattacahrjee, the explanation furnished by the accused is liable to be accepted. Mr. Bhattacharyya Page No.# 19/198 further submits that the fouler the crime, stricter is the proof and, therefore, unless the prosecution succeeds in proving the charge beyond reasonable doubt, the accused persons are liable to be acquitted. In support of the above argument the learned counsel has relied upon Lakshmi Singh Vs. State of Bihar reported in (1976) 4 SCC 394.

By referring to the decision in the case of Vadivelu Thewar Vs. State of Madras reported in AIR 1957 SC 614 as well as in the case of Harbans Singh Bhan Vs. The State of Punjab reported in AIR 1957 SC 637 and Nachhhattar Singh and others Vs. State of Punjab reported in (1976) 1 SCC 750, the learned senior counsel for the appellants has argued that the prosecution case must be proved and it cannot be “may be true or probably true”, if the witnesses relied upon by the prosecution is found to be unreliable, wholly unreliable or neither wholly reliable nor unreliable for prosecuting the accused persons. By referring to the decision of Devi Lal and another Vs. State of Rajasthan and others reported in (1971) 3 SCC 471 as well as Mohinder Singh Vs. State reported in AIR 1953 SC 415, Mr. Bhattacharyya has argued that the prosecution must have a definite and positive case and the same must be proved in terms of the allegations brought against the accused. He submits that it is the cardinal principle of criminal jurisprudence that the prosecution not only has a definite and positive case but it succeeds in proving the entire case. By relying upon the decision of Ganga Sahai and others Vs. State of U.P. reported in (1974) 4 SCC 186, the learned senior counsel has further argued that in a criminal case, the fate of the proceedings cannot be left at the hands of the parties alone.

Contending that holding a witness “implicitly reliable” leads to denial of justice Page No.# 20/198 leading to infirmities in the prosecution case, Mr. Bhattacharyya has also referred to the decision in the case of Hallu and others Vs. The State of Madhya Pradesh and others reported in (1974) 4 SCC 300 as well as Kailash Gour and others Vs. State of Assam reported in (2012) 2 SCC 34, to submit that charge brought against the accused in a criminal case must be established by leading evidence that is acceptable by the standards of criminal jurisprudence.

In so far the e-mails of the accused appellant Ranjan Daimari is concerned, Mr. Bhattacharyya has argued that the e-mails exhibited by PW-499 and PW-502 numbering 64 in total as Exts-417(i) to Exts-417(xxiii) and Ext-427 were inadmissible in evidence since those were not accompanied by a certificate issued under Section 65(B) of the Indian Evidence Act, 1872. Moreover, submits Mr. Bhattacharyya, such electronic evidences have also not been put to the accused persons while recording their statements under Sections 313 Cr.P.C. In support of his above argument, Mr. Bhattacharyya has referred to and relied upon the decision of the Supreme Court in the case of Anvar P.V. Vs. P.K. Basheer and others reported in (2014) 10 SCC 473.

By referring to the decision in the case of Kali Ram Vs. State of Himachal Pradesh reported in (1973) 2 SCC 808, Chandigarh Administration Vs. Dharma Singh reported in (1985) Suppl. SCC 266, Anil Kumar Singh Vs. State of Bihar reported in (2003) 9 SCC 67 and State of Uttar Pradesh Vs. Wasif Haider reported in (2019) 2 SCC 303, the learned senior counsel has further submitted that on the basis of evidence available on record, if two views are possible, than the one favourable to the accused persons is required to be adopted by the court and the accused persons Page No.# 21/198 must be acquitted by giving them the benefit of doubt. In a criminal case, submits Mr. Bhattacharyya, mere suspicion or moral conviction cannot take the place of proof.

By referring to the impugned judgement passed by the learned Special Judge, Mr. Bhattacharyya has argued that the learned Court below has failed to correctly appreciate the evidence adduced by the prosecution in holding that the charge of criminal conspiracy under Section 120B of the IPC read with Section 18 of the Unlawful Activities (Prevention) Act has been proved by failing to consider that there is no evidence to connect the accused with the alleged conspiracy theory. In support of his above argument, Mr. Bhattacharyya has relied upon and referred to the decision of the Supreme Court rendered in the case of Tapan Das Vs. State of Bombay, reported in AIR 1956 SC 33 and Jetsur Surangabhai Vs. State of Gujarat reported in (1984) Suppl SCC 207 as well as Paramhans Yadav and another Vs. State of Bihar and others reported in (1987) 2 SCC 197 and B.H. Narasimha Rao vs. Government of A.P. reported in (1995) Suppl. 4 SCC 704.

Contending that the statement of the witnesses recorded under Section 164 of the Cr.P.C. is not a substantive piece of evidence and, therefore, the trial Court could not have relied upon the same so as to convict the accused persons, Mr. Bhattacharyya has vociferously argued that the conviction of the accused persons is substantially based on the statement of the witnesses recorded under Section 164 Cr.P.C. In order to drive home the above arguments, the learned senior counsel for the appellants has relied upon the law laid down in the following decisions:- (i) Mamand and others Vs. The Emperor reported in Air 1946 SC 45. Page No.# 22/198 (ii) Ram Kishan Singh Vs. Harmit Kaur reported in (1972( 3 SCC 280. (iii) Utpal Das Vs. State of West Bengal reported in (2010) 6 SCC 493. (iv) Baij Nath Vs. State of Bihar reported in (2010) 6 SCC 736. (v) R. Shaji Vs. State of Kerala reported in (2013) 14 SCC 266. (vi) Bisheswar Baori Vs. State of Assam reported in 2002 (2) GLT 395.

In so far as the confessional statement of the accused persons relied upon in this case is concerned, Mr. Bhattacharyya submits that proper procedure was not followed while recording their confession and at-least 24 hours time for reflection was not given to the accused persons before recording their statements. Contending that confession of co-accused is a weak piece of evidence and, therefore, cannot be wholly relied upon for conviction of the accused, Mr. Bhattacharyya has referred to the law laid down in the case of Sarwan Singh Rattan Singh Vs. State of Punjab reported in AIR 1957 SC 637 and Haricharan Kurmi Vs. State of Bihar reported in AIR 1964 SC 1184. He submits that when confession is the whole basis of conviction, the truthfulness or otherwise of the confession must be ascertained by an independent investigation and based on cogent evidence. In support of the above argument, Mr. Bhattacharyya has relied upon the decision in the case of Padmeshwar Phukan Vs. State of Assam reported in 1971 Cri. L.J. 1595.

By relying upon the decision in the case of Kalawati and another Vs. State of H.P. reported in AIR 1953 SC 131 as well as Aloke Nath Dutta and another Vs. State of Page No.# 23/198 West Bengal reported in (2007) 12 SCC 230, Ram Chandra and another Vs. State of U.P. reported in AIR 1957 SC 381, Dhanajaya Reddy Vs. State of Karnataka reported in (2001) 4 SCC 9 and Kehar Singh & others Vs. State [Delhi Administration] reported in (1988) 3 SCC 609, the learned senior counsel for the appellant has argued that any confession in order to be relied upon by the trial Court, ought to be voluntary and truthful. Such confession must also be recorded by following the due procedure laid down in Section 164/281 of the Cr.P.C. unless the aforesaid process is followed, the confession of the accused persons cannot be relied upon for conviction. Mr. Bhattacharyya has added that in any event, a retracted confession cannot form the basis of conviction.

Referring to the discovery statements relied upon by the prosecution, Mr. Bhattacharyya has argued that the statement of the accused must lead to discovery of facts and not vice-versa. Mr. Bhattacharyya has argued that none of the disclosure statements relied upon by the prosecution side meets the requirement of Section 27 of the Evidence Act. Even the pointing out memos relied upon by the prosecution, according to the learned counsel for the appellant, are of no evidentiary value in this case since the alleged discoveries made by the I.O. on the basis of such disclosure statement and pointing out memos were made subsequently i.e. after the prosecution became aware of the existence of such facts from some other sources. Contending that statements of the witnesses recorded under Section 164 Cr.P.C. cannot be used as substantive evidence for conviction of accused, Mr. Bhattacharyya has argued that those statements could at best, have been used for corroboration and contradiction of the witnesses but not as substantive evidence. Page No.# 24/198

In support of the above argument, Mr. Bhattacharyya has relied upon the decisions rendered in the case of Mohd. Inayatullah Vs. State of Maharastra reported