High Court · 2012

5. However, on having found the accused guilty of the offence, which he sto od charged with, the learned trial Court convicted him accordingly and passed se ntence against him as mentioned above. Aggrieved by his conviction and the sente nce passed against him, the accused has preferred this appeal. 6. We have heard Mr. P. Kataki, learned counsel, for the accused-appellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam.

7. Before entering into the discussion of the oral evidence, which has been adduced against the accused-appellant by the prosecution, let us, first, take n ote of the medical evidence on record. We notice, in this regard, that the docto r (PW8), who had, admittedly, conducted, on 14.10.2004, post mortem examination on the dead body of Indra Baruah, found as follows: (cid:28)External appearance: A male body. Rigor mortis present. Wounds : An incised wound on the head on the left frontal region 3 (cid:29)x1 (cid:29) in size in volving the underlying bone. Clotted blood seen on the wound. Cranium & Spinal canal : An incised wound on the head on the left frontal region 3 (cid:29)x1 (cid:29) in size in volving the underlying scalp. Clotted blood seen on the wound. Membrane : Congested. Brain and spinal cord : Congested. Clotted blood found on the brain matt er (left frontal bone). Thorax : Larynx, trachea and lungs were found congested. Heart : Left side was found empty. Right side was found full of clotted blood. Abdomen : Mouth, pharynx and esophagus found congested. Stomach was foun d empty. No smell or alchohol. Other organs were normal. (cid:29) 8. It is in the evidence of the doctor (PW8) that the injuries, found on th e said dead body, were ante mortem in nature and, in the opinion of the doctor ( PW8), death was caused due to coma as a result of the head injury, which the sai d deceased had sustained, the head injury being sufficient to cause death of a p erson in the ordinary course of nature. 9. In his cross-examination, the doctor (PW8) has clarified that as soon as the deceased had sustained the injuries, which had been found on the said dead body, the victim might have entered into coma. This opinion, which the doctor ha s given, clearly shows that it is not necessary that in each and every case, the kind of injuries, which Indra Baruah was found to have sustained, particularly, the injury on his head, would make one enter into coma.

10. Apart from the fact that the finding of the doctor and his opinion with regard to the nature of injuries, which the said deceased had sustained, and the cause of his death were not in dispute at the trial, we, too, do not notice any thing inherently improbable or incorrect in the evidence of the doctor (PW8). We have, therefore, no hesitation in holding that Indra Baruah had sustained an in cised wound on the left frontal region of his scalp, the size of the wound being 3 (cid:29) x 1 (cid:29) and the injury, so sustained, was sufficient to cause death of a person in the ordinary course of nature and though the incised wound, which Indra Baru ah had sustained on his head, could have made Indra Baruah go into coma, it cann ot be, confidently, held that he must have entered into coma, because there is n othing in the evidence on record to show that Indra Baruah was found senseless. 11. Bearing in mind the medical evidence on record, we, first, come to the e vidence of PW3, widow of deceased Indra Baruah. According to the evidence of PW3 , the accused is, in relation, her nephew and their houses are close to each oth er. 12. As regards the occurrence, PW3 has deposed that on the night of the occu rrence, at about 9 pm, accused came to their house and took, along with him, her husband, Indra Baruah, by inviting him to have a cup of tea on the ground that he had received his salary on that day and, believing in what the accused had to ld him, Indra Baruah went with the accused and, after some time, a person, calle d Ruman Baruah, was heard shouting that Bhaiti had assaulted Indra Baruah, the n ame of the accused being Ruman Baruah @ Bhaiti and, on hearing what the said Rum an Baruah had told, both she (PW3) and her son, PW1, rushed to the road and foun d Indra Baruah lying in a pool of blood near the house of one Pramod Baruah. It is in the evidence of PW3 that her husband told that Bhaiti had assau 13. lted him and, then, he could not speak, whereupon they (PW1 and PW3) raised hull ah and many of their neighbours came and they carried, with the help of their ne ighbours, injured Indra Baruah to his house. It is also in the evidence of PW3 t hat as they were collecting money to carry the injured to hospital, her husband died, whereupon police was informed, police came and held inquest over the dead body. 14. It is also important to note that PW3 has deposed that after the occurre nce, the accused disappeared from his house. PW3 has also deposed that before th e occurrence took place, they had a dispute with regard to the boundary of the l and with the accused. 15. In her cross-examination, PW3 has clarified that the house of Pramod Bar uah, near whose house Indra Baruah was found lying injured, is at a distance of about 100 meters from her house. PW3 has also clarified, in her cross-examinatio n, that before the occurrence, they were on talking terms with the accused and t hat after about one hour of her husband having been taken away by the accused, t he said Ruman Baruah informed them that her husband was lying injured on the roa d. PW3 has reiterated, in her evidence, that she saw injury on the head of her h usband and that the night of occurrence was a dark night. In her cross-examinati on, PW3 has reiterated that her husband, Indra Baruah, could not speak after som e time, meaning thereby, Indra Baruah, was able to speak, when PWs 1 and 3 arriv ed at the place, where Indra Baruah was found lying. 16. It is also in the evidence of PW3 that they informed Biman Baruah, who i s own nephew of the deceased. PW3 has conceded, in her evidence, that in their v illage, names of Dipen Baruah’s son is also Bhaiti and that quite a few of her c o-villagers are called Bhaiti. In her cross-examination, PW3 has asserted that a ccused ran away to save himself. The suggestion, offered to PW3 by the defence, was that as the news spread that the accused had killed Indra Baruah, the accuse d, out of fear, ran away. 17. What is extremely important to note, while considering the evidence of P W3, is that the defence has not even denied the fact that the accused came to th eir house at about 9.30 pm and took, along with him, Indra Baruah by inviting hi m to have a cup of tea, at the house of the accused, on the ground that he (accu sed) had received his salary on that very day and, about an hour thereafter, on hearing Ruman Baruah’s shout that Indra Baruah was lying injured, when PW3, acco mpanied by her son (PW1), came running to the road, she (PW3) found her husband lying injured at a distance of about 100 meters from her own house, the place, w here Indra Baruah was lying, being near the house of one Pramod Baruah. 18. Similarly, while cross-examining PW3, the evidence given by PW3 that her husband uttered that Bhaiti had assaulted him has also not been disputed by the defence.

19. Notwithstanding the fact that there is, according to the evidence of PW3 , more than one person in their village known as Bhaiti, the fact remains that i t was the accused-appellant, who had taken away the said deceased, by inviting h im to have a cup of tea, as deposed to by PW3, and, an hour thereafter, Indra Ba ruah was found lying injured and he uttered the word that Bhaiti had assaulted h im. 20. Considering the fact that the accused-appellant was the one in whose com pany the said deceased was last seen, the evidence of PW3, in the absence any ev idence showing to the contrary, leads one to the lone and only conclusion that i t was the accused-appellant whom the said deceased meant, when he uttered that B haiti had assaulted him. We notice that there is no explanation offered by the a ccused-appellant or discernible from the evidence on record to show that as to w here, when and under what circumstance, he happened to part company with the sai d deceased. 21. Situated thus, there can be no escape from the conclusion, in the light of the evidence of PW3, that it was the accused-appellant, who had assaulted Ind ra Baruah and the injuries, which Indra Baruah had received at the hands of the accused-appellant, became the cause of his death. 22. We may also pause here to point out that the accused had, admittedly, di sappeared on the very night of the occurrence. Had he not been the person not in volved in the occurrence, nothing stopped him from coming either to the place of occurrence or to the house of the deceased, when the house of the accused-appel lant is adjacent to the house of the deceased, and the co-villagers of Indra Bar uah had already come to know about the occurrence on the very night of the occur rence. No doubt, while examining the accused-appellant under Section 313 Cr.PC. 23. , the incriminating circumstance that the accused-appellant was found absconding had not been put to him, the fact remains that this Court made a query from the learned counsel for the appellant if the accused-appellant had any explanation to offer and the explanation offered, consistent with the suggestion, which had been offered by the defence to PW3, was that it was, out of fear, that the accus ed-appellant had absconded. The news that the accused-appellant was the one, wh o had killed Indra Baruah, spread at about 4 pm; whereas Indra Baruah was found lying injured at around 10.30 am, because it is the evidence of the widow of the deceased (PW3) that her husband was found lying injured after about one hour of his leaving home. Between the time, when Indra Baruah was found injured, and th e time, when Indra Baruah died, there is no reason for the accused-appellant to have not made any query about Indra Baruah or any query as to who was involved i n the occurrence, particularly, when the accused-appellant was the one, who had taken Indra Baruah with him from the house of the deceased Indra Baruah by invit ing Indra Baruah to have a cup of tea at his (accused-appellant’s) house. 24. Close on the heels of the evidence of PW3, the evidence of her son, PW1, is that on the day of the occurrence, at about 09.30 p.m., when he was casually lying at his home and his parents were also present at home, the accused came a nd took, along with him, his father, Indra Barua, for a cup of tea on the ground that he had received his salary on that very day and though there was a boundar y dispute between them and the accused, the accused was considered as their own man and that was why, they did not suspect any foul play. PW1 has also deposed t hat after some time, he heard one Ruman Baruah that Indra Baruah had been assaul ted and he also heard from the direction of the house of one Pramod Barua, his f ather’s cry (cid:28)Bhaitiye marile (cid:29)(Bhaiti has assaulted) (cid:29). 25. PW1 has further deposed that on hearing his father’s cries and what Ruma n Baruah had shouted, he (PW1) and his mother (PW3) went to the said place and f ound his father, Indra Barua, in injured condition with blood oozing out, his fa ther was not in a condition to speak and, then, he (PW1), his mother, PW3 and Bi man Barua carried his father home and, on hearing their hue and cry, people from the neighbouring houses came.

26. It is in the evidence of PW1 that though they looked for a vehicle, they could not arrange any vehicle and, at about 4.30 a.m., his father died. It is a lso in the evidence of PW1 that since after the occurrence, the accused disappea red. It is further in the evidence of PW1 that on coming to know about the occur rence, police arrived at their house and he got an Ejahar written (which is Ext. 1), by Atul Barua and handed over the same to the police. In his cross-examination, PW1 has clarified that their house and the hou 27. se of the accused is adjacent to each other. PW1 has also clarified that it was from Ruman Baruah’s shouts, raised from the direction of the house of Pramod Bar uah, that they came to know that his father had been assaulted and that about ha lf-an-hour after his father had left home, he had heard his father’s voice. 28. When we scrutinize minutely, it becomes clear that PW1’s assertions are two fold, namely, that Ruman Baruah had been heard shouting that someone had ass aulted Indra Barua and it is also clear from the evidence given, both in examina tion-in-chief as well as in cross-examination, by PW1 that he had heard his fath er’s cries, too, saying, Bhaitie marile (cid:29) (i.e., Bhaiti had assaulted). 29. It is, therefore, not impossible that while Ruman Baruah had shouted tha t Indra Barua had been assaulted by someone, PW1 had heard his father’s cry, (cid:28)Bh aitiye marile (cid:29) (Bhaiti has assaulted) too. 30. The undisputed evidence of PW1 is that the wife of the accused was not a t home on the day of the occurrence inasmuch as he had driven away his wife on t he day of the occurrence. In his cross-examination, PW1 has further clarified that on their arriva 31. l at the place of occurrence, his father, Indra Barua, uttered that the accused had assaulted him and, then, he could not speak anymore.

32. The above assertion of PW1 that his father uttered that the accused had assaulted him and, then, he could not speak anymore went wholly unchallenged by the defence. Notwithstanding, therefore, the evidence of PW1 that when they arrived a 33. t the place, where his father was found lying injured and his father was unable to speak, his evidence remains unscathered and we find no reason to disbelieve h is evidence that his father had uttered that the accused had assaulted him and, then, his father became silent. What remains also undisputed by the defence, whi le cross-examining PWs 1 and 3 is that the accused had, indeed, invited Indra Ba ruah to have a cup of tea at the house of the accused at about 9:30 PM and Indra Baruah did go to the house of the accused and within an hour, or may be less th an an hour, Indra Baruah was found lying seriously injured and uttered the name of the accused as his assailant. 34. Four important facts, which clearly emerge from a combined reading of th e evidence of PW1 and PW3, are that (i) the house of the accused is adjacent to their house and, on the day of the occurrence, the wife of the accused was not at home; that (ii) on the day of the occurrence, at about 9.30 p.m., the accused -appellant came to the house of Indra Barua and took Indra Barua along to the ho use of the accused-appellant by inviting him to have a cup of tea and Indra Baru a left his house in the company of the accused; that (iii) between half-an-hour and on hour of his departure from his house, while Ruman Baruah was heard by PW1 and PW3 shouting that someone had assaulted Indra Barua, PW1 had, in fact, hear d even his father, Indra Baruah, crying out (cid:28)Bhaitie marile (cid:29) (i.e., Bhaiti has a ssaulted); and (iv) when PW1 and PW3 went to, and arrived at, the place, where I ndra Barua was lying injured in pool of blood, Indra Barua was not in a position to speak; but, then, he had uttered that Bhaiti had assaulted him and, having m ade this declaration, Indra Barua became silent and remained unable to speak and that Indra Barua was carried home, but he could not be provided with medical tr eatment inasmuch as no vehicle could be arranged and he succumbed to his injurie s by about 4.30 a.m. 35. Before proceeding further, it is also important to note that though the EjaharI (Ext.1), which PW1 had lodged, has been treated as the FIR of this case, the fact remains that the police, on receiving the telephonic information of In dra Barua having been killed had already come to the house of Indra Barua and, t hus, the investigation by police had already commenced before the EjaharI (Ext.1 ) was lodged by PW1. Consequently, the contents of the Ejahar (Ext.1) cannot be treated as FIR and these contents constitute, in law, PW1’s statement made to po lice during the course of investigation. 36. Coming to the evidence of PW2, we notice that his evidence is to the eff ect that on the day of the occurrence, while he was asleep, he heard PW1 and his mother (PW3) shouting that Bhaiti had hacked Indra Barua. It is in the evidence of PW2 that on hearing the cries, he came to the place of occurrence, which hap pened to be close to the house of Pramod Barua, and found Indra Barua lying inju red with a cut injury on his right side of his head and blood was oozing out of the injury and though he spoke to the injured, the injured was unable to reply. In the meanwhile, according to the evidence of PW2, many persons came there and the injured was carried to his house and as they could not arrange any vehicle, the injured could not be taken to the hospital and, on the night of the occurren ce itself, at about 4.30 a.m., Indra Baruah died. It is also in the evidence of PW2 that police were informed by their Gaonburah’s son and police came and held inquest over the dead body of Indra Barua. Even PW2 has deposed that since after the occurrence, the accused had disappeared. In his cross-examination, PW2 has clarified that the distance of the pla

37. ce of occurrence from the house of injured Indra Barua is about 150 meter. 38. Closely lending support to the evidence of PW1, PW2 and PW3, PW4 has dep osed that on the night of the occurrence, he woke up and came running to the pla ce, where people had assembled, and found Indra Baruah lying in a pool of blood on the road and he came to know from the son and wife of Indra Baruah that accu sed had come to their house and taken away Indra Baruah with him. 39. It is worth pointing out that though PW1 and PW3 have not deposed that t hey reported either to PW2 or PW4 that the accused had come to their house and t aken Indra Baruah with him for a cup of tea, the fact remains that the assertion s of PW2 and PW4 that they were told by PW1 and PW3 that the accused had taken I ndra Barua to his house were not disputed. This shows that PWs 1 and 3 did promp tly mention to their neighbours the fact of Indra Barua had been taken by the ac cused to his house. 40. While considering the above aspect of the case, it needs to be noted tha t, ordinarily, when PW1 and PW3 have not deposed that they had reported PW2 and PW4 that accused had taken Indra Baruah to the house of the accused to have a cu p of tea, the evidence, given by PW2 and PW4, that PW1 and PW3 had told them tha t Indra Baruah had been taken by the accused for a cup of tea to the house of th e accused cannot be rejected as hearsay and must be held admissible to prove the factum of information.

41. It is of immense importance to note that, in order to exclude a piece of evidence as hearsay, one has to bear in mind the distinction between the factum of information and truthfulness or veracity of such information. If, in a given case, the object is to merely establish that a statement was made by one person to another, it may not be hearsay; but if the object is to prove that what was started was true, then, it may become hearsay. Thus, when ’x’, an eye witness of an occurrence of murder, comes to a police station and reports the occurrence t o a police officer, the evidence given by the police officer, at the trial, in t he absence of the evidence given by the informant, that he was given such an inf ormation is not hearsay if the object is merely to prove that such an informatio n was, indeed, received by the police officer; but if the object is to prove tha t what the police officer had been reported was or was not true, then, the polic e officer’s evidence as to what he was reported by ’x’ would be hearsay unless ’ x’ appears as a witness at the trial and deposes not only that he had so reporte d the occurrence to the police officer, but also that what he had reported was t rue as he had witnessed the occurrence himself. (See Bisheswar Baori @ Khetrapal Vs. State of Assam, reported in 2002 (2) GLT 395).

42. In Subramaniam Vs. Public Prosecutor, reported in [1956] 1 WLR 965, the Privy Council, distinguishing the factum of statement from the factum of truth, observed and held that the state of mind of a man, charged with possessing ammun ition contrary to certain regulations, could be proved by what had been told to him by certain terrorists into whose hands he had come. Referring to the observa tions, so made by the Privy Council in Subramaniam (supra), Lord Parker, Chief J ustice, in Regina -vs- Wills [1960] 1 WLR 55, observed, (cid:28)Mr. de Silva, giving the advice of the Board, said: In ruling out peremptorily the evidence of conversation between the terrorists and the appellant, the trial judge was in error. Evidence of a statement made to a witness by a person, who is not himself called as a witness, may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible, when it is p roposed to establish, by the evidence, not the truth of the statement, but the f act that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct there after of the witness or of some other person in whose presence the statement was made. (Emphasis is added) In the opinion of this Court, that statement of the law is applicable to the pre sent case. It is true that the Board were there considering the state of mind an d conduct of the defendant at the time of the commission of the offence, but pro vided the evidence as to his state of mind and conduct is relevant, it matters n ot whether it was in regard to the conduct at the time of the commission of the offence or, as here, at a subsequent time, to explain his answers to the police and his conduct, when charged. Accordingly, that evidence, in the present case, was wrongly excluded. (cid:29) 43. In Sudip @ Tultul Choudhury, reported in 2010 (2) GLT 870, the question, which arose, was: When an informant or the person, who informs the Officer-in-C harge of a police station as regards commission of a cognizable offence, is not examined as a witness at the trial, because of the fact that his identity is not Thus, the evidence, given in the present case, by PW12 (Investigating Of known, whether the evidence, given by the Officer-in-Charge of the police stati on concerned, as to what information he had received would or would not be hears ay ? Pointing out the distinction between the factum of information and truth 44. fulness or veracity of such information, a Division Bench of this Court, in Sudi p @ Tultul Choudhury (supra), observed, at paragraph 19 and 20, as under: (cid:28)19. ficer) that he had received an information telephonically, at his police station , that Anil Gan of Central Road Extension had been murdered and that his dead bo dy was lying, in his courtyard, is not wholly inadmissible in evidence in order to show as to what information PW12 had telephonically received, which prompted him to visit the place of occurrence, though the informant’s identity had not be en determined and the informant was not examined. By proving as to what had prom pted the police machinery to move into motion, what the evidence of PW12 does is that it tells the Court as to what information he had received telephonically a t his police station and why and how he happened to come to the place, where Ani l Gan’s dead-body was found lying. To the extent, therefore, as to what PW12 had been told on telephone or to the extent as to what information PW12 had telepho nically received at his police station, the evidence, given by PW12, is not inad missible evidence even though the caller remains unidentified till date. With th e limited use of the evidence given by PW12, what is proved, in the absence of e xamination of the person, who had made the said telephone call, is the factum of information, namely, as to what information PW12 had telephonically received. I t does not, however, prove that the information, which PW12 had received, was tr ue. If the factum of truth of the information so given is required to be determi ned by the Court, then, the evidence given by PW12, as to what he had been told, telephonically, by the caller, would be hearsay and inadmissible evidence. The Court has to, therefore, remain alive at the trial as to when a statement, attri buted to any person, who is not examined as a witness, can be brought on record as a factum of statement made and not as proof of the truth of the statement mad e. 20. Thus, the evidence, given by PW12, as to what he had been told by the te lephone caller is, in the absence of the evidence of the caller, not inadmissibl e if the Court has to rely on the evidence of PW12 to hold that PW12 had receive d a telephone call to the effect that Anil Gan had been murdered. But the inform ation, that Anil Gan had been murdered as aforesaid, is quite different from the question as to whether Anil Gan had, as a matter of fact, been murdered or not. When the information, so received by PW12, made the police machinery move into motion and in order to ascertain the truth and also to investigate as to who was the offender, when the police proceeded from the said police station, arrived a t the place of occurrence, examined the dead body of Anil Gan and held inquest t hereon, investigation into the case must be held to have already commenced. Any information given thereafter, whether in writing or orally, to PW12 by PW1, as r egards the occurrence, was nothing, but his (PW1’s) statement made to the police during investigation and such a statement stands on the same footing as does a statement of a witness under Section 161 Cr.PC. Such a statement is not substant ive evidence nor can it be treated, or could have been treated, as FIR. (cid:29) 45. Thus, the evidence of PW2 and PW4, too, in the present case, same as in the case of Sudip @ Tultul (supra), have to be divided into two parts, namely, factum of information and truthfulness or veracity of the information. The pros ecution has clearly proved the factum of information inasmuch as the evidence of PW2 and PW4 stands well proved, for, we see no reason to disbelieve the evidenc e of PW2 and PW4. Logically, therefore, there is no difficulty in concluding tha t PW2 and PW4 were, indeed, reported by PW1 and PW3 what PW2 and PW4 claimed to have been reported to them by PW1 and PW3. Whether the information, so given to them by PW1 and PW3, was or was not true, would depend on the credibility of th e evidence of PW1 and PW3. Situated thus, what is admissible from the evidence of PW2 and PW4 is th 46. at they were, indeed, informed by PW1 and PW3 that the accused had taken, along with him, Indra Baruah to the house of the accused-appellant for having a cup of tea. The evidence, so given by PW2 and PW4, cannot be treated as the evidence o f truth; but, in the face of the fact that the evidence of PW2 and PW4 is found by us to be believable, we see no reason to disbelieve PW2 and PW4 merely becaus e PW1 and PW3 did not claim, in their evidence, that they had reported to PW2 an d PW4 what PW2 and PW4 claimed to have been reported as regards the accused-appe llant having taken, along with him, Indra Baruah to the house of the accused-app ellant for a cup of tea. What PW1 and PW3 reported to PW2 and PW4 were or were n ot true can be answered depending upon the veracity of the evidence of PW1 and P W3. 47. Proceeding further with this judgment, we must point out that same as th e other witnesses, PW4, too, has deposed that due to non-availability of vehicle , Indra Baruah could not be taken to hospital and he died, police came and held inquest over the said dead body and prepared inquest report, which is Ext. 3. 48. In his cross-examination, PW4 has clarified that when he reached the pla ce of occurrence, Indra Barua was not in a position to speak. The evidence, so g iven by PW4, does not take away the value of undisputed evidence of PWs 1 and 3 that before Indra Barua became silent, he did utter that Bhaiti had assaulted hi m. Similarly, while considering the evidence of PW2 that when he spoke to the in jured, the injured was unable to reply, it is important to bear in mind that the evidence, so given by PW2, cannot be taken to have reduced the value of the und isputed evidence of PWs 1 and 3 that before Indra Baruah fell silent, he did utt er that Bhaiti had assaulted him. 49. The evidence of PW5 is not of much value inasmuch as he came to the plac e of occurrence on the next day morning except that even he has asserted that PW 3 had told him that on the previous night, the accused had come and taken away w ith him the deceased and though they went in search of the accused, they could n ot find him out. 50. According to the evidence of PW7, who is the Sarkari Gaonburah, (i.e., v illage headman and who lives in the vicinity of the house of Indra Baruah), on t he night of the occurrence, PW1 and PW3 came to his house, woke him up and told him that Indra Barua had been hacked by Bhaiti near Pramod Barua’s house, whereu pon he, immediately, went to the place of occurrence and found Indra Baruah lyin g injured in a pool of blood and Indra Baruah was unable to speak and, then, Ind ra Baruah was carried home, but due to non-availability of vehicle, Indra Baruah could not be carried to the hospital.

51. The undisputed evidence of PW7 is that after the occurrence, the accused disappeared.

52. Coming to the evidence of the Investigating Officer (PW9), we notice tha t according to his evidence, on 14-10-2004, he was at Amguri Police Station as s econd officer and on that day, he received oral information, over telephone, tha t Indra Baruah was murdered by Ruman Baruah, the information having been given b y Diganta Baruah, whereupon he made General Entry No. 307, dated 14-10-2004, and proceeded to the place of occurrence and, on arriving there, found Indra Barua’ s dead body lying inside his dwelling house. It is in the evidence of PW9 that h e held inquest over the said dead body and, on finding a spade and dao lying in an open area by the side of the road, he seized the spade and dao, in presence o f witnesses, by a seizure list, which is Ext. 2. It is also in the evidence of t he Investigating Officer (PW9) that though he recorded the statement of the witn esses, he did not find the accused as the accused had fled away by locking his d oor and, eventually, the accused was apprehended at the house of his father-in-l aw. 53. The material aspects of the entire evidence of the Investigating Officer (PW9), including his evidence that the accused had disappeared by locking his h ouse and that he was apprehended at the house of his father-in-law, remained unc hallenged by the defence. 54. While considering the present appeal, it needs to be noted that no witne ss has been examined by the prosecution, who claims to have witnessed the accuse d-appellant assaulting and/or killing Indra Baruah. The case of the prosecution, therefore, rests on circumstantial evidence.

55. The standard of proof required, for the purpose of convicting a person, on the basis of circumstantial evidence, has been laid down, with great clarity, in the case of Hanumant Govind Nargundkar v. State of M.P., reported in 1952 SC R 1091, wherein the Court has pointed out that the circumstances, which are reli ed upon, must be fully established and the chain of evidence, furnished by the c ircumstances so established, should make a complete case against the accused and shall not leave any reasonable ground for a conclusion consistent with the inno cence of the accused. The relevant observations, appearing in Hanumant Govind Na rgundkar (supra), read as under: (cid:28)It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn shou ld in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again , the circumstances should be of a conclusive nature and tendency and they shoul d be such as to exclude every hypothesis but the one proposed to be proved. In o ther words, there must be a chain of evidence so far complete as not to leave an y reasonable ground for a conclusion consistent with the innocence of the accuse d and it must be such as to show that within all human probability the act must have been done by the accused. (cid:29) 56. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116, has pointed out that in a case, based on circumstantial evidence, the circumstances from which the conclusion of guilt is required to be drawn shall be fully established and the facts, so established, shall be not only consistent with the hypothesis of guilt of the accused, but shall be in consistent with a ny hypothesis of innocence of the accused. 57. Elaborately dealing with the principles, laid down in Hanumant Govind Na rgundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda (supra), pointe d out, at para 152, thus: (cid:28)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 esta blished: (1) the circumstances from which the conclusion of guilt is to be drawn should b e fully established. It may be noted here that this Court indicated that the circumstances concerned (cid:28)must or should (cid:29) and not (cid:28)may be (cid:29) established. There is not only a grammatical b ut a legal distinction between (cid:28)may be proved (cid:29) and (cid:28)must be or should be proved (cid:29) as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra wh ere the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] (cid:28)Certainly, it is a primary principle that the accused must be and not merely ma y 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. (cid:29) (2) the facts so established should be consistent only with the hypothesis of th e guilt of the accused, that is to say, they should not be explainable on any ot her 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, a (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. (cid:29) Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court has pointed out, in Deonandan Mishra Vs. The State of Bihar ( AIR 1955 SC 801), too, that in a case of circumstantial evidence, not only should the vario us links in the chain of evidence be clearly established, but the completed chai n must be such as to rule out a reasonable likelihood of the innocence of the ac cused. Referring to the facts of Deonandan Mishra (supra), the Supreme Court poi nted out that in a case like this, where various links have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time a nd situation, and when he (accused) offers no explanation, which if accepted, th

58. In Joseph s/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC 197; the fa ough not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explana tion would itself be an additional link, which completes the chain. 59. The case of Joseph Vs. State of Kerala, reported in (2000) 5 SCC 197, is a case, which is relevant, while considering the theory of last seen together. In Joseph (supra), the facts were, as noted by the Supreme Court, in its subsequ ent decision, in State of Rajasthan Vs. Kashi Ram, reported in (2006) 12 SCC 254 , as under: (cid:28)20. cts were that the deceased was an employee of a school. The appellant representi ng himself to be the husband of one of the sisters of Gracy, the deceased, went to the St. Mary’s Convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permi ssion of the Sister in charge of the Convent, PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was a lso found as a fact that the deceased was last seen alive only in his company, a nd that on information furnished by the appellant in the course of investigation , the jewels of the deceased, which were sold to PW-11 by the appellant, were se ized. There was clear evidence to prove that those jewels were worn by the decea sed at the time when she left the Convent with the appellant. When questioned un der Section 313 Cr.P.C., the appellant did not even attempt to explain or clarif y the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In this backdrop, the Cou rt held:- \Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and f alse answers given to court, when questioned, found the missing links to be supp lied by such answers for completing the chain of incriminating circumstances nec essary to connect the person concerned with the crime committed (see State of Ma harashtra Vs. Suresh, (2000) 1 SCC 471). That missing link to connect the accuse d appellant, we find in this case provided by the blunt and outright denial of e very one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accus ed with the death and the cause for the death of Gracy\. From the observations, made above, it becomes clear that when a fact is 60. explainable and within the special knowledge of the accused, facing trial, and t he accused chooses not to offer explanation, it becomes an additional link in th e circumstances in the sense that the omission to explain is a missing link, whi ch may be treated to have been supplied for arriving at the answer, which the ci rcumstantial evidence makes one reach. 61. In Ram Gulam Choudhary and others Vs. State of Bihar, reported in (2001) 8 SCC 311, the Supreme Court has pointed out that it is permissible, in a given case, to draw an inference from the silence of an accused if the answer could b e given by the accused alone even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt inasmuch as Section 106 would apply to cases, wh ere prosecution successfully proves the facts from which a reasonable inference can be drawn. 62. In fact, the case of Sahadevan alias Sagadevan Vs. State, represented by Inspector of Police, Chennai, reported in (2003) 1 SCC 534, is a case, which is closely akin to the case at hand, wherein the deceased was seen in the company of the appellant from the morning of March 5, 1985, till, at least, 5 pm on that day, when he was brought to his house and, thereafter, his dead body was found in the morning of March 6, 1985. In this fact situation, the Supreme Court obser ved: \Therefore, it has become obligatory on the appellants to satisfy the court as t o how, where and in what manner Vadivelu parted company with them. This is on th e principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the ci rcumstances in which they parted company. In the instant case the appellants hav e failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever\. 63. Having taken into consideration the cases of Joseph (supra), Ram Gulam ( supra) and Sahadevan (supra), the Supreme Court has pointed out, in Kashi Ram (s upra), that Section 106 of the Evidence Act makes it clear that when any fact is especially within the knowledge of a person, the burden of proving that fact is on him. It is not necessary to multiply with authorities. The principle is well

64. Hence, observes the Supreme Court, in Kashi Ram (supra), that if a perso n is last seen with the deceased, he must offer an explanation as to how and whe n he parted with the company of the deceased. The Supreme Court has, in fact, go ne to the extent of observing that in such a case, the accused must furnish an e xplanation, which appears to the Court to be probable and satisfactory and if th e accused does so, he must be held to have discharged his burden; but if the acc used fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. The Su preme Court has further pointed out, in Kashi Ram (supra), that if, in a case, r esting on circumstantial evidence, the accused fails to offer reasonable explana tion in discharging the burden placed on him by virtue of Section 106, his silen ce is an additional link in the chain of circumstances proved against him. 65. Clarifying the object of Section 106, the Supreme Court has laid down, i n Kashi Ram (supra), that Section 106 does not shift the burden of proof in a cr iminal trial inasmuch as the burden of proof always rests on the prosecution, bu t it lays down the rule that when the accused does not throw any light upon the facts, which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his f ailure to adduce any explanation as an additional link, which completes the chai n. In coming to this conclusion, the Court has referred to Naina Mohamed (AIR 19 60 SC 218). The relevant observations, appearing in Kashi Ram (supra), read as u nder: (cid:28)23. settled. The provisions of Section 106 of the Evidence Act itself are unambiguou s and categoric in laying down that when any fact is especially within the knowl edge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 10 6 of the Evidence Act. In a case resting on circumstantial evidence if the accus ed fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances prove d against him. Section 106 does not shift the burden of proof in a criminal tria l, which is always upon the prosecution. It lays down the rule that when the acc used does not throw any light upon facts which are specially within his knowledg e and which could not support any theory or hypothesis compatiable with his inno cence, the Court can consider his failure to adduce any explanation, as an addit ional link which completes the chain. The principle has been succinctly stated i n Re. Naina Mohd. AIR 1960 Madras, 218. (cid:29) 66. Ordinarily, the circumstance of last seen together would be relevant, wh en it is established by the evidence on record that the time gap between the poi nt of time, when the accused and the deceased were seen together alive, and when the deceased was found dead, is so small that possibility of any other person b eing with the deceased can be completely ruled out. Thus, the time gap between t he accused person having been seen in the company of the deceased and the death of the deceased would be a material consideration for appreciation of evidence i n such matters. What is, however, of paramount importance to note is that it can not be always stated that the evidence of last seen together must be rejected me rely because the time gap between the point of time, when the accused persons we re seen in the company of the deceased, and the coming into light of the offence committed is of a considerable long duration. There is no fixed or straight-jac ket formula in respect of duration of time gap. Obviously, it would depend on th e facts of a given case if the circumstance of the last seen together is so mate rial that it can lead the Court to conclude that none, but the accused was last seen in the company of the deceased and was, therefore, the one, who had caused death of the deceased. Reference, in this regard, may be made to the cases of Bo dhraj v. State of J & K, reported in (2002) 8 SCC 45, State of U.P. v. Satish, r eported in (2005) 3 SCC 114, Ramreddy Rajesh Khanna Reddy v. State of A.P., repo rted in (2006) 10 SCC 172 and Jaswant Gir v. State of Panjab, reported in (2005) 12 SCC 438. The Supreme Court has summarized the theory of last seen together, in State of Goa v. Sanjay Thakran and another, reported in (2007) 3 SCC 755, at Para 34, as follows: (cid:28)From the principle laid down by this Court, the circumstance of last-seen toget her would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the tim e gap between the point of time when the accused and the deceased were found tog ether alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The tim e gap between the accused persons seen in the company of the deceased and the de tection of the crime would be a material consideration for appreciation of the e vidence and placing reliance on it as a circumstance against the accused. But, i n all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the decease d last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of t ime gap in this regard and it would depend upon the evidence led by the prosecut ion to remove the possibility of any other person meeting the deceased in the in tervening period, that is to say, if the prosecution is able to lead such an evi dence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen toget her, although there is long duration of time, can be considered as one of the ci rcumstances in the chain of circumstances to prove the guilt against such accuse d persons. Hence, if the prosecution proves that in the light of the facts and c ircumstances of the case, there was no possibility of any other person meeting o r approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be r elevant evidence. For instance, if it can be demonstrated by showing that the ac cused persons were in exclusive possession of the place where the incident occur red or where they were last seen together with the deceased, and there was no po ssibility of any intrusion to that place by any third party, then a relatively w ider time gap would not affect the prosecution case. (cid:29) 67. In the backdrop of the law, as discussed above, when the facts of the pr esent case are taken into account, it becomes clear that though the deceased, In dra Baruah, was seen last in the company of the accused-appellant, Ruman Baruah, the accused-appellant has not offered any explanation as to where, when and und er what circumstances he happened to part company with Indra Baruah. 68. In the face of the overwhelming evidence on record against the accused-a ppellant pointing to him as the one, who had killed Indra Baruah, the silence of the accused-appellant and his inability to offer any explanation as to when, wh ere and under what circumstances he happened to part company with the deceased w ith whom he had been seen last, has to be considered as additional circumstances against the present accused-appellant. In a situation, as the present one, the omission, on the part of the acc 69. used-appellant to offer any explanation as to when, where and under what circums tances, if we may reiterate, he happened to part company with the deceased, Indr a Baruah, can be treated as the missing link and furnish an additional piece of evidence against the accused-appellant.

70. Because of what have been discussed and pointed out above, we do not fin d that the conviction of the accused-appellant, for the offence of murder, suffe rs from any infirmity, legal or factual. His conviction, therefore, does not ne ed any interference nor does the sentence, which has been passed against him, ca lls for any interference by this Court. 71. In the result and for the reasons discussed above, we uphold the convict ion of the accused-appellant and the sentence passed against him. This appeal a ccordingly fails and the same shall stand dismissed. 72. Send back the LCR.