On conclusion of the trial, the Trial Court convicted the accuse v. Gangula Satya Murthy

On conclusion of the trial, the Trial Court convicted the accuse

#9. Mr. Z. Kamar, learned PP for the State respondent. We have heard learned counsels appearing for the appellants and

#10. Learned counsels for the appellants submitted that there is no e vidence to convict the appellants for commission of offence u/s 302 IPC. Learne d counsels further submitted that in a case based on circumstantial evidence, th e circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and n one else. But in the instant case, even the basic fact that the accused and the deceased were last seen together, was not proved. Though the vehicle was found in the possession of the accused persons but such recovery of the vehicle cannot be a basis of conviction of the accused persons for commission of offence u/s 3 02 IPC.

#11. Learned counsels for the appellants further pointed out that sus picion, however grave, cannot be substituted for proof and the circumstantial ev idence, from which an inference of guilt is sought to be drawn, must be cogently and firmly established and the prosecution must prove the charge by leading cog ent, believable and credible evidence.

#12. Learned Public Prosecutor for the State/respondent on the other hand submitted that the recovery of the vehicle from the possession of the accus ed persons conclusively established that the accused/appellants were the author of the crime since they did not come forward to explain as to how they came into possession of the vehicle, which was in custody of the deceased at the relevant time, when he was alive.

#13. In order to appreciate the submissions of the learned counsel ap pearing for the appellant as well as the learned Public Prosecutor for the State respondent, we would like to examine the prosecution evidence in details:

#14. PW.4, BogeswarKalita is the owner of the vehicle bearing Registr ation No. AS-12-D-1777 and Nabajyoti Bora(deceased) was his driver engaged for d riving the said vehicle. According to PW.4, on 21.1.07, he had sent the vehicle with the driver (deceased) to Tezpur for bringing medicine. In the evening, hi s driver informed him over phone that few persons have taken the vehicle forcibl y to North Lakhimpur. Thereafter, PW.4 did not get any information regarding th e vehicle as the driver did not come back with the vehicle till 22.1.07.Accordin gly, PW.4 informed Mazbat police regarding missing of his car with the driver. On 25.1.07, PW.4 was informed by the Officer-in-Charge, Mazbat police station th at a dead body was recovered by the Dhemaji police and it was kept in DhemajiCiv ilHospital. PW.4 immediately came to DhemajiCivilHospital and identified the de ad body to be of his driver, Nabajyoti Bora, who was the driver of his vehicle a t the relevant time. On 28.1.07, PW.4 came to know that his vehicle was recover ed at Arunachal Pradesh. On 29.1.07, PW.4 came to Arunachal and found his vehic le in the Along Police OutPost.

#15. nation of the deceased found the following injuries on his person: Dr. Paramananda Deori, PW.9, who performed the post-mortem exami (cid:28)External Examination: A young healthy and stout boy of about 25 years old with rigor m ortis, whole body of thick black hair with protruded incisor teeth upper part ja w. Multiple abrasions and bruises are notice over the forehead, left eye on bot h upper and lower orbit and left cheek and maxilla. A rounded to oval shaped br uises noticed over the forehead and its diameter is about 10 to 16 cm.,colour is deep brown. Black eye developed on left eye. Conjunetrivcal congestion (haemo rrhagic) on right eye and skcral bleeding also seen. Multiple abrasion over righ t yet, outer orbit of right side on both alac of nose and base of nose and on bo th lips margin, corner of mouth. Upper incessor teeth is exposed, both eyes are partially opened. An indistinct continuous ligature mark encircling the neck f rom front to back is seen above the oricoid cartilage, slight depressed over the front part. Abrasions and bruises are also seen on the front neck probably of nails and pad of finger. The head can be moved freely just above the thyroid ca rtiledge. Shoes and socks are seen wearing bilateral. Genital area- normal. T he colour of bruises are brown , dry, parchment like. On dissection of the skull, a small haematoma is found over the left frontal lobe of ante mortem in nature. Cervical vertebrae is fractured at the level of 4th , 5th and 6th vertebrae. Other organs are found to be normal. Hyoid bone fractured with cervical vertebrae about the level of 4th, 5th and 6th vertebrae. (cid:29) In the opinion of the doctor, cause of death was sudden asphyxia due to throttling which led to airway obstruction. In cross-examination, PW.9, the Doctor has stated that the post-mortem examination of the dead body was car ried on 24.1.07.

#16. PW.1 N. Dutta, was on duty of Soil Conservation of Forest office at Joyrampur. On 23.1.07, in the plantation area of the Joyrampur forest area, PW.1 noticed a dead body in the forest area. PW.1 immediately informed the pol ice about the discovery of the dead body by filing the Exht.1(FIR). The Investi gating Officer (PW.11) deposed that on receiving the information from PW.1, he v isited the place of occurrence and found the dead body of the deceased, which wa s identified to be of Nabajyoti Bora. PW.8, the Executive Magistrate prepared t he inquest report of the dead body vide Exht.10. The dead body was sent accordi ngly for post-mortem examination.

#17. From the evidence of PW.1, 4 and 9, it clearly transpires that t he vehicle belonged to PW.4 and the deceased Nabajyoti Bora was his driver, who was driving the said vehicle at the relevant time. The unshaken testimony of PW .4 clearly reveals that the vehicle was taken away by some boys on 22.1.07 towar ds North Lakhimpur. Thus the vehicle and the driver were missing since 22.1.07. On the next date, i.e., on 23.1.07, the dead body of the deceased was found in the forest plantation area. The vehicle was not with the deceased. The eviden ce of the witnesses coupled with the evidence of Doctor, who carried out the pos t-mortem examination clearly reveals that the death of the deceased was homicida l. Thus, the circumstances leading to the death of the deceased clearly spell o ut that the boys, who took the vehicle towards North Lakhimpur side together wit h the driver may have caused the death of the deceased and dumped his dead body in the remote forest area of Joyrampur.

#18. Sri Tarun Kr. Saikia, PW.11, the Officer-in-Charge of Along Poli ce Station deposed that on 25.1.07 while he was in the police station he got the information that some boys from Assam were roaming suspiciously in a Maruti Car . On suspicion, PW.11 brought the Car along with the boys to the police station . PW.11 came to know from the accused that the vehicle in their possession was a stolen vehicle. PW.11 also recovered registration certificate of the vehicle from the accused persons. Accordingly, PW.11 registered a Non-FIR case being No .3/07 and made correspondences with the Gogamukh police and Dhemaji police. The Investigating Officer of this case seized the vehicle and brought the accused p ersons on arrest upon Production of Warrant issued by the Court. Apparently, th e recovery of the vehicle from the accused persons is not in dispute.

#19. In their statements u/s 313 CrPC, all the accused persons above named did not deny the fact of recovery of the vehicle from their possession and bringing them on arrest to the police station. The accused persons took the st and that they were brought to the police station by Along police suspecting them to be extremists. Thus, prosecution could establish that the vehicle belonging to PW.4, which was driven by the deceased, was found in possession of the accus ed persons.

#20. PW.8, Sri BK Das, the Executive Magistrate in his evidence depos ed that when he along with Circle Inspector of Police visited the Jairampur soil conservator forest on 22.1.07 at about 1:00 PM, the accused/persons confessed b efore him that they had hired the stolen vehicle bearing Registration No. AS-12- D-1777 on 21.1.07, and arrived in the JoyrampurSoil Conservator of Forest office at about 8:00 PM. PW.8 further stated that the accused Saya Brahma and RantuBo rostated to have strangulated the driver Nabajyoti Bora and after killing the dr iver dragged the dead body to the nearby forest area and left it there. Thereaf ter, they straightway went to Jonai and picked up one KailashBasumatary and went to Along, Arunachal Pradesh for selling out the vehicle. According to PW.8, th e accused persons also showed him the place of occurrence and the location, wher e they have kept the dead body. PW.8 also prepared a report Exht. X on the basi s on the basis of the confessional statement made by the accused persons.

#21. PW.2,JyotishHazong deposed that PW.8 Executive Magistrate and po lice officers came to the place of occurrence along with the accused persons and they confessed before the Executive Magistrate that they have killed the driver and took away the vehicle. During cross-examination he has stated that at the time of making statement, the Executive Magistrate and the police officers were present. Police also seized a Gamosa vide Exht.3 in his presence. PW.3, Nripen Barman deposed that police officers and Executive 22. Magistrate went to the place of occurrence along with 4 accused persons i.e. San kar Barman @ Ranjit Barman, RantuBoro @ Rahul Boro, SayaBasumatary @ Saya Brahma and Mangal Chandra Bahma @ Bishal. He also arrived there as the VDP secretary. Executive Magistrate took the statements of the accused persons. According to him, accused persons confessed before Executive Magistrate that they have broug ht the vehicle, killed the driver and took away the vehicle. He also stated tha t police seized a ’Gamosa’ from the place of occurrence.

#23. PW.5,DurgaUpadhyay also deposed in the same line that police off icers and Executive Magistrate went with the accused persons and the accused per sons have confessed before them that they took the vehicle after killing the dri ver. During cross examination, PW.5 has stated that confessional statement befor e Executive Magistrate was recorded by a police officer and it was not recorded by Executive Magistrate. PW.6,Bilato Barman also deposed in the same line that on 2nd Feb 24. ruary police went to the SoilConservationForest office, Joyrampuralong with 4 ac cused personsalong with an Executive Magistrate. The accused persons have confe ssed that they killed the driver and took away the vehicle. PW.6 also stated du ring cross-examination that prior to 2ndFebruary, he went to place of occurrence , when the dead body was recovered earlier.

#25. Testimony of PW.7 is that he along with PW.4 and PW.6 saw a dead body at JoyrampurSoilConservationForestoffice on 23.1.07 and the information wa s lodged before the police by PW.1.

#26. Statements of PW.2, PW.3, PW.5 and PW.6 were also recorded by Ju dicial Magistrate u/s 164 CrPC,which have been proved as Exht.2, Exht.6 and Exht .9. These statements recorded u/s 164 CrPC show that PW.2, PW.3, PW.5 and PW.6 have also stated before the Judicial Magistrate regarding confessional statement made by the accused persons, before the Executive Magistrate. PW.12 and PW.13 are the Judicial Magistrates, who have recorded 27. statement u/s 164 CrPC which have been proved vide Exht.2, Exht.6, Exht.8 and Ex ht.9. PW.10,TirenDihingia, Officer-in-Charge of BordoloniOutpost depos 28. ed that on the basis of an Ejahar lodged by one NiranjanDutta on 23.1.07, a GD E ntry was made and the same was sent to GogamukhPolice Station for registering a case and accordingly, the Gogamukh PS Case No.15/07 u/s 302 IPC was registered. On 31.1.07, an information was received from the Police Station that the accuse d persons - Mangal Chandra Brahma ,RantuBoro, KailashBasumatory, Sankar Barman a nd SayaBasumatory were detained by Along police along with a Maruti Car at Along . Accordingly, PW.10 went to the Alongand seized the said vehicle vide Exht.12, seizure list. This witness was not cross examined.

#29. PW.11, Investigating Officer of the case deposed that he had rec eived an Ejahar lodged by NiranjanDutta on 23.1.07 and after making G.D. Entry s ent the same to Gogamukh police station for registering a case. The Officer-in- Charge of GogamukhPolice Station registered the GogamukhPolice Case No.15/07 u/s 302 IPC and entrusted PW.11 with the investigation. PW. 11 visited the place of occurrence, brought the dead body of the deceased and sent it to DhemajiCivil Hospital for post-mortem examination. PW.11 again went to place of occurrence o n 2.2.07 along with the four accused persons and with the Executive Magistrate a nd recorded confessional statement of the accused persons. During cross-examina tion, PW.11 stated the accused Kailash Basumatory was not brought to the place o f occurrence along with the other accused persons. Scrutiny of the evidence of PW.2,PW.3, PW.5, PW.6, PW.8 and the 30. Investigating Officer (PW.11), it transpires that on 2.2.07, PW.11 along with Ci rcle Inspector of police and the Executive Magistrate (PW.8) went to Joyrampur S oil Conservation Forest along with the accused persons where the dead body was f ound and all the accused persons made confessional statement before the Executiv e Magistrate (PW.8). It is apparent that the Executive Magistrate did not recor d the confessional statement. However, he had prepared a report regarding confe ssional statements of PW.2, PW.3, PW.5 and PW.6, who have categorically stated t hat the accused persons have made confession that they have killed the driver- N abajyoti Bora and took away the vehicle. It is apparent from the evidence of PW .11 that the accused persons were taken to police custody for 4 days, on 1.2.07 and thereafter on 2.2.07, PW.11 along with CI of Police and Executive Magistrate went to the place of occurrence along with the accused persons, where the accus ed persons alleged to have made confessional statement before the Executive Magi strate in presence of police officers including Investigating Officer and the ot her witnesses as well as PW.2, PW.3, PW.5 and PW.6. From the evidence of PW.2, PW.3, PW.6, PW.8 and PW.11 , it is abundantly clear that the confessional state ment was made by the accused persons before the Executive Magistrate and police officers, while they were in police custody. The following circumstances are found to have been established beyond al l reasonable doubt: i) Bhugeswar Kalita. ii) That the vehicle bearing Registration No. AS-12-D/1777 belonged to PW.4 The deceased Nabajit Borah was the driver of Bhugeswar Kalita (PW.4) and he was driving the said vehicle on 21.1.2007. On 21.1.2007 the vehicle was taken away along with the driver by some pe iii) rsons. iv) v) r Soil Conservation Forest. vi) -D/1777 was killed by strangulation. vii) ing Registration No. AS-12-D/1777 From 22.1.2007, the vehicle along with driver Nabajit Borah was missing. On 23.1.2007, the dead body of Nabajit Borah was found lying at Joirampu The driver (Nabajit Borah) of the vehicle bearing Registration No. AS-12 On 28.1.2007, the accused persons were found possessing the vehicle bear belonging to Bhugeswar Kalita (PW.4). The fact that the vehicle bearing Registration No. AS-12-D/1777 (Ma ruti Alto) was stolen and the same was found in possession of the accused perso ns . The accused persons in their examination u/s 313 CrPC did not admit the f actum of the vehicle being found in their (accused persons) possession. Accused Kailash Basumatary gave an explanation that they were picked up by police as th ey did not have any Inner Line Permit. According to other 4 accused persons, the y were picked up by CW.1, suspecting them to be extremists. The I.O.(C.W.1) in h is cross examination stated to have recovered the vehicle and detained in the po lice station. There is no independent witness was examined, to prove recovery of the stolen vehicle from the possession of the accused appellants .

#31. IN State of A.P. v. Gangula Satya Murthy, (1997) 1 SCC 272 , the Apex Court observed that confession made to a police officer is inadmissi ble under Section 25 of the Evidence Act and that ban is further stretched throu gh Section 26 of the Evidence Act, to the confession made to any other person al so, if the confessor was then in police custody . It reads as follows: It is true any confession made to a police officer is inadmissible under Section 25 of the Act and that ban is further stretched through Section 26 to the confe ssion made to any other person also if the confessor was then in police custody. Such ’custody’ need not necessarily be post-arrest custody. The word ’custody’ used in Section 26 is to be understood in a pragmatic sense. If any accused is w ithin the ken of surveillance of the police during which his movements are restr icted then it can be regarded as custodial surveillance for the purpose of the s ection. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act.

#32. In view of the decision of the Supreme Court in the case of S tate of A.P. v. Gangula Satya Murthy, (1997) 1 SCC 272, any confession made by t he accused in presence of the Investigating Officer, is not legally admissible e vidence.

#33. It is now well-settled that with a view to base a conviction o n circumstantial evidence, the prosecution must establish all the pieces of incr iminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypot hesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Ku mar Singh v. State of Bihar : (2003)9SCC67 and Reddy Sampath Kumarv. State of A. P.MANU/SC/0559/2005 <javascript:fnOpenGlobalPopUp(’/citation/crosscitations.asp’ ,’MANU/SC/0559/2005’,’1’);> : 2005 CriLJ 4131 ]

#34. The last-seen theory, furthermore, comes into play where the ti me gap between the point of time when the accused persons 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 impossib le. Even in such a case courts should look for some corroboration. 35. However, in the present case, the accused appellants were never seen by any person, whosoever, together with the deceased. The owner of the vehicle stated in his evidence that he had received a call from the deceased regarding t aking away of the vehicle by some persons. There is no direct evidence to hold t hat the accused appellants where the persons who took the vehicle together w ith the deceased. 36. The last-seen theory comes into play where the time-gap betwe en the point of time when the accused and the deceased were last seen alive and when 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons comin g in between exists. In the absence of any other positive evidence to conclude t hat the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is no positi ve evidence that the deceased and the accused were seen together. 37. It is, furthermore, well-known that motive by itself is not sufficient to prove the guilt. [See State of M.P. through CBI and Ors. v. MANU/ SC/0050/2005 :Paltan Mallah and Ors. 2005CriLJ918 .] 38. When there is no eye witness to the occurrence, (i) the circumstan ces from which the conclusion of guilt is to be drawn should be fully establishe d;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that the accused is guilty;(iii) the circumstances should be of a conclus ive nature;(iv) there must be a chain of evidence so complete as not to leave an y reasonable ground for the conclusion consistent with innocence of the accused on preponderance of probability. ( Sharad Birdhichand Sarda Vs. State of Maharas htra reported in (1984) 4 SCC 116)

39.. In the instant case, while it has been proved that the deat h of deceased is homicidal, but nobody witnessed the accused committing the crim e . The facts established by the prosecution are not consistent with the hyp othesis of the guilt of the accused. Hence, on this ground alone the appellants are entitled to the benefit of doubt resulting in his acquittal. After giving thoughtful consideration on the entire gamut of fac 40. ts and circumstances of the case, we are of the view that the prosecution could not establish beyond all reasonable doubt that it was the accused-appellants, w ho had stolen the vehicle and also killed Nabajit Bora , the deceased, as alle ged. Hence, the appeals noted above are allowed and the impugned judgment and or der dated 1st December, 2007, passed by the learned Sessions Judge Dhemaji , in Sessions Case No.39(DH)/2007, is set aside. Consequently, accused-appell ants, namely,(i). Sri Rantu Boro @ Rahul Boro.(ii) Sri Kailash Basumatary @ Babu l, (iii) Sri Sankar Barman @ Ranjit, (iv)Sri Mangal Ch. Brahma @ Suresh @ Bisha l, (v)Sri Sanjaram Basumatary @ Saya, are acquitted and directed to be set a t liberty forthwith, if not wanted in connection with any other case. Before parting with the record, we appreciate the valuable assistance r 41. endered by Mrs , R. Borbora, Mr. SS Goswami and Ms. Kalyani Devi, Amicus Curiae , in the afore noted appeals and direct that they be paid a sum of Rs.3,500 0/-(Rupees three thousand five hundred only) each , as remuneration by High Co urt legal Services Authority . Send back the L.C.R. together with a copy of this judgment.