The High Court allowed the appeal in a murder case. Reviewing circumstantial evidence regarding a fatal assault, the court held that the evidence was inconclusive and failed to exclude reasonable doubt, thereby acquitting the appellant.
The judgment of the learned trial Court is set aside and the appellant is acquitted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010203232018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 82/2018
1:JUNABOR SAIKIA
S/O. LT. BHOKALA SAIKIA, R/O. BALIJAN GAON, P.S. PANITOLA, DIST. TINSUKIA, ASSAM.
VERSUS
1:THE STATE OF ASSAM REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. B BARUAH, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
Date of hearing and Judgment & Order :: 12th of February, 2020.
JUDGMENT & ORDER (Oral)
( H.K. Sarma, J )
This appeal is preferred from jail against the judgment and order dated 05-07-2018, passed by the learned Sessions Judge, Tinsukia, in Sessions Case No. 31(T) of 2017, convicting the accused-appellant, under Section 302 of the Indian Penal Code, and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs.50,000/-, in default, imprisonment for a period of six months.
2 . We have heard Mr. B. Baruah, learned Amicus Curiae appearing on behalf of accusedappellant and Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam.
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3. The case for the prosecution, as unfolded during the trial, is that the PW1, Manoj Saikia, heard shrieks of his younger brother, Diganta Saikia (deceased), at about 8.30 pm on 12-09-2016, while he had gone to sleep after taking dinner. Hearing the shrieks, he immediately rushed to the house of his younger brother, Diganta and found him lying on the verandah in an injured state with blood oozing out from his wounds. PW1 also saw his father standing there holding a dao in his hands. According to him, his father had killed his younger brother, Dignata. Apprehending that he would also be attacked by his father (accused-appellant), he left the place of occurrence.
4 . On the basis of such facts, PW1 lodged the FIR with Panitola Police Outpost, which recorded the same vide GD Entry No. 224, dated 13-09-2016 and forwarded the same to Tinsukia Police Station. Tinsukia Police Station registered a case being No. 1031/2016, under Section 302 of the IPC, took up the investigation, collected evidence and, on completion of investigation, laid the charge-sheet against the accused-appellant, under section 302 of the IPC.
5 . After exhausting all required legal formalities, the case came up before learned Sessions Judge, Tinsukia, for trial. The learned Sessions Judge framed a formal charge against the accused-appellant under Section 302 of the IPC. The accused-appellant pleaded innocence thereto and claimed to be tried. Therefore, the trial commenced.
6. On conclusion of the trial, learned Sessions Judge, Tinsukia found the accusedappellant guilty of offence punishable, under Section 302 of the IPC, and accordingly, convicted and sentenced him as indicated above.
7 . In this case, the prosecution examined as many as 8 witnesses including the Medical Officer and the Investigating Police Officer, whereas the defence examined one witness, i.e., the accused-appellant himself. In his statement, recorded under Section 313 of the Cr.P.C., the accused-appellant denied that he had committed the offence alleged. He has taken the plea that the deceased, Dignata did not stay together with him in the same house and that he got the information from one Nilutpal, over phone, that something had happened to deceased Diganta and then only he went to his house.
8 . We have scanned the evidence of the prosecution witnesses. We have also perused the records of the learned trial Court including the judgment appealed against.
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9. To ascertain as to whether the death of the deceased was homicidal or not, let us, first, scrutinize the evidence of the autopsy doctor, examined as PW3.
10 . PW3, Dr. Nirod Kr. Borah, performed the post mortem examination of the dead body of deceased, Diganta, on 12-09-2016, i.e., on the date of occurrence at Tinsukia Civil Hospital and found as follows:
“ Injuries:
1. An incised wound on right parietal region of size 14cm obliquely. The underlying parietal bone is fractured.
2. One cut wound on the occipital region of size 12cm, obliquely in direction and involved the underlying bone.
3. One incised wound on the front of neck horizontal at the level of thyroid cartilage, which severs thyroid cartilage and laryax.
4. One cut wound on the under border of left forearm of size 2cm obliquely, involving skin muscles and ulner bone.
5. One cut injury on the right wrist joint of size 2cm, horizontal on the dorsal surface.
6. One cut injury on the left side of temporal region of size 1cm, only scalp is involved.
7. One cut injury of the forehead of size 1.5 cm horizontally.
All the injuries were caused by sharp cutting weapon.
Cranium and spinal canal- The membrane contains extradural and subdural collection of blood. Brain was congested with blood.
Opinion:- In my opinion, death is due shock and haemorrhage as a result of injuries sustained. All injuries were homicidal and ante-mortem in nature. Time since death was 12 to 18 hours.
Injury No. 1, 2 and 3 are individually sufficient to cause death of a person in normal course.”
11 . The post mortem examination report has been exhibited as Ext.4. The Investigating Police Officer, examined as PW8, has also exhibited the inquest report as Ext.2. On perusal of the inquest report it reveals that the injuries found on the dead body of the deceased are almost same with that of the injuries recorded in the post mortem examination report. The evidence of the witness of the inquest is also to the effect that the deceased was murdered by somebody with the help of sharp weapon like dao . The opinion of the autopsy doctor is very clear that the deceased died a homicidal death and such opinion also gets reinforced by the witness to inquest report. Therefore, this Court has no hesitation to hold
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that the deceased died a homicidal death.
12 . Now, we have to scrutinize the evidence on record to ascertain as to whether the accused-appellant had killed the deceased.
13 . On examination of the entire evidence on record, it is found that there is no eye witness to the occurrence. The informant, Manoj Saikia, is the son of the accused-appellant as well as the elder brother of the deceased, who lodged the FIR vide Ext.1. He deposed that at about 8.30 pm on the date of occurrence, he heard the deceased screaming and then he came to his house and saw his father holding a dao in his hands and the deceased lying in an injured state on the verandah . He left the place of occurrence seeing his father holding a dao as he suspected that his father could attack him also. He also deposed, in his examination-in-chief that he suspected his father (accused-appellant) to have caused the injuries to his deceased brother. This witness was declared hostile by the prosecution and then he was cross-examined. During his cross-examination by the prosecution, the PW1 deposed that he had stated before the Magistrate that after seeing the dao in the hands of his father, he slipped away as he apprehended that his father could attack him also. He also deposed that his father used to stay with his deceased brother and there used to be quarrel between them on petty domestic matters.
In his cross-examination by the defence, he deposed that he did not state in his FIR that he had seen his father standing in the house of the deceased holding a dao and that the body of the deceased was lying in a pool of blood. He also denied the fact that he had mentioned that some unknown assailants had committed murder of his brother. Ext.3 is the statement made by him before the Magistrate under Section 164 of the Cr.P.C. On perusal of the Ext.3, it is found that the PW1 made a statement to the effect that while he went to the house of the deceased, he saw his father armed with a dao standing near the deceased and witnessing this he got scared and nervous and left the place of occurrence.
14 . PW5, Sri Ananta Saikia, deposed that at about 9.30 pm, on the date of occurrence, while he was informed by one Hiteswar Lohan that Diganta Saikia was attacked by sharp weapon and he died, he immediately came to the house of Diganta and there he met the accused-appellant standing by the side of the dead body in the verandah of the house. Some other villagers were also there. In the meantime, police took away the dead body from the place of occurrence. The PW1 and the accused-appellant also accompanied the
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police while the dead body of Diganta was being removed. Next day, the police recovered the dao, which was suspected to be the weapon of offence. He identified the seized dao to be that of the accused-appellant. He is a witness to the seizure of the dao vide Ext.5. He also exhibited the said dao in the Court.
In his cross-examination, he has admitted that the police had shown him the dao in the house of the deceased and he did not know as to from which place police recovered the dao .
15 . PW2 is the wife of the younger brother of the deceased. Her evidence is to the effect that while she was gossiping with her mother-in-law and sister-in-law Alpana Saikia in their house, she received a telephone call from one Nilutpal Saikia, informing her that an incident had taken place in the house of the deceased. At that time, the accused-appellant had arrived there in her house. At that point of time, Nilutpal asked her whether her father-in-law was in their house or not and she replied that he just arrived in their house. Thereafter, said Nilutpal and her father-in-law, i.e. the accused-appellant had some conversation over phone. Thereafter, PW2 and all others proceeded to the house of deceased Diganta and found him lying dead in a pool of blood in the verandah of his house.
In her cross-examination, she has stated that she did not notice PW1 in the house of the deceased while they arrived there.
16 . The evidence of PW4, Bhaskar Baruah, is to the effect that hearing about the death of Diganta Saikia; he came to the place of occurrence and found him lying dead. He also noticed cut injuries on his back and neck of the deceased. He came to know that the accused-appellant had committed the murder of the deceased.
In his cross-examination, he deposed that he was informed by police that the accusedappellant had committed the murder of the deceased.
17 . PW6, Tonen Saikia, is a witness to the seizure of the dao, allegedly used in the commission of the offence, vide Ext.5 and also exhibited the same in the Court as M. Ext.1. His further evidence is that he went to the house of the accused-appellant due to the commotion emanating from his house and there he saw the deceased lying on the verandah with cut injuries on different parts of his body. Police came to the place of occurrence and removed the dead body of the deceased from there.
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18 . PW7, Dimpal Saikia, deposed that the accused-appellant is the younger brother of his father. On the next day of the occurrence, he received information from his elder brother, Tonen Saikia (PW6) that the accused-appellant had committed murder of his son, Diganta Saikia.
19 . PW8, Puspa Kt. Hazarika, is the Investigating Police Officer of the case. He has narrated, in his evidence, the various stages of investigation of the case from receipt of the FIR till laying of the charge-sheet. He has also deposed that while visiting the place of occurrence again, he searched for the weapon of offence in nearby places and found a dao lying in a pond near the place of occurrence. The dao was buried beneath mud of the pond, which he himself noticed and then recovered. He seized the same vide Ext.5. M. Ext.1 is the dao exhibited in the Court. He also came to know from Ananta Saikia, Taren Saikia and Keshav Moran that the seized dao belonged to the accused-appellant.
20 . It appears from the above evidence of the witnesses that PW1 and PW5 are the witnesses who claimed that on their arrival at the place of occurrence, they had seen the accused-appellant standing by the side of the deceased in his house holding a dao .
21 . The evidence of PW4 is hearsay so far the implication of the accused-appellant is concerned. He was told by police that the accused-appellant had committed the murder of the deceased although there is no evidence on record of any police officer corroborating his such evidence. Therefore, his evidence remains a piece of hearsay evidence only.
22 . The evidence of PW7 is not at all implicating the accused-appellant. He deposed that his elder brother, Tonen Saikia (PW6), informed him about the occurrence. But, PW6 has not corroborated this piece of evidence. Therefore, the evidence of PW7 is also a piece of evidence having no evidentiary value.
23 . The evidence of PW2 also makes it appear that while she got the information about the occurrence, the accused-appellant was in her house and they went together to the place of occurrence, which fact indicates that the accused-appellant was in her house. But, the evidence of PW1 and PW5 is that they had seen the accused-appellant standing by the side of the dead body of the deceased holding a dao in his hands.
24 . The learned trial Court based the conviction of the accused-appellant on circumstantial evidence. As held by the Hon’ble Supreme Court in Jaharlal Das v. State of
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Orissa, reported in (1991) 3 SCC 27 , the cases dependant largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion howsoever strong cannot be allowed to take the place of proof. The court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
25 . The circumstances relied upon by the learned trial Court, on scrutiny of the impugned judgment, are found to be as follows:
(a) The accused-appellant has not denied that he resided at the house of his deceased son, Diganta Saikia, at the relevant time of occurrence.
(b) The accused-appellant had stated in his evidence that he went to the house of the deceased with a dao , and thus PW1 had seen the accused-appellant standing by the side of the dead body of the deceased with a dao in his hands.
(c) PW5 had also seen the accused-appellant by the side of the dead body of the deceased although he did not state that the deceased was holding a dao at that time. He has also taken the police to the place of recovery of the dao , which allegedly belonged to the accused-appellant, and was partially buried beneath mud of the pond, is also one of the circumstances.
26 . The evidence on record, particularly, the statements in the FIR, marked as Ext.1, shows that some unidentified miscreants had killed the brother of the informant (PW1) by hacking him with a dao , but in his examination-in-chief, he deposed that he had seen his father with a dao in his hands inside the house of the deceased and he suspected that his father (accused-appellant) had caused the injury on his deceased brother. He was declared hostile by the prosecution and in his cross-examination, by the prosecution, he deposed that he made a statement before the Magistrate that he had seen his father holding a dao in his hands and then he slipped away apprehending that his father might attack him also.
27 . The specific statement of PW1 in the FIR is that some unknown persons had committed the crime and his subsequent evidence, on oath, before the Court is that he suspected his father (accused-appellant) to have committed the crime is completely
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unrealistic and unworthy of credence because it is not believable that a son will fail to identify his father if he had seen him at the place of occurrence.
28 . The FIR was lodged by the PW1 on 13-09-2016, i.e., after one day of the date of occurrence. PW1 had admitted, in his evidence, that he had seen his father in the house of the deceased holding a dao immediately after the alleged occurrence when he visited the place of occurrence. But, inspite of such fact, he referred to some unidentified person as assailants of his deceased brother in the FIR. He had even not suspected his father at that stage; therefore, such evidence of PW1 cannot be relied upon. The evidence of PW5 also does not appear to be implicating the accused-appellant as he deposed that he had only seen the accused-appellant in the house of the deceased while he visited the place of occurrence. `
29 . PW2 deposed that she came to the place of occurrence along with the accusedappellant. The evidence of PW2 is not believed by the learned Court below for the reason that PW1 and PW5 had seen the accused-appellant by the side of the dead body of the deceased immediately after the occurrence. But, there is evidence of PW2 that the accused-appellant was at her house at the relevant time of the occurrence and on hearing about the incident, they all come to the place of occurrence. PW2 has not been crossexamined by the defence on this aspect and as such, her evidence on this count remained unassailed. Thus, there is no reason to disbelieve such unassailed evidence of PW2.
30 . PW5 and PW6 are the witnesses to the seizure of the dao allegedly used in commission of the offence. The evidence of the Investigating Police Officer (PW8) shows that the PW5, PW6 and one Keshav Moran told him that the seized dao belonged to the accused-appellant. Keshav Moran has not been produced and examined by the prosecution as witness. The evidence of PW5 is to the effect that the dao seized vide Ext.5 was recovered by the Investigating Police Officer on the next day before he arrived there suspecting the same to be the weapon of offence. The police had shown him the said dao , which he identified to be that of the accused-appellant. Such evidence of PW5 clearly shows that the dao was not seized in his presence and he was not aware as to from which place it was seized. On the other hand, PW6 deposed that the dao was seized in his presence from a pond. But there is no evidence to connect the seized dao with the commission of the alleged offence. Therefore, it is unsafe to hold that the accused-
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appellant had committed the alleged crime with the seized dao . The other circumstances relied upon by the learned trial Court is that the accused-appellant had resided in the house of the deceased. Such fact does not necessarily mean that the accused-appellant had committed the crime for the reason that there is no evidence that none, except the accused-appellant resided in the house of the deceased at the relevant time of occurrence.
31 . It appears from the entire evidence discussed above and taking an overall view of the matter that there is no such circumstantial evidence which unerringly points to the guilt of the accused-appellant and is consistent only with the hypothesis of his guilt. As such, the circumstances are not conclusive in nature.
32 . In view of the above discussions, we are of the view that the order of conviction recorded by the learned trial Court is not based on correct appreciation of the evidence on record. Therefore, the judgment of the learned trial Court requires interference by this Court.
33 . Accordingly, the judgment of the learned trial Court is set aside and the appellant is acquitted.
34 . The appeal is, accordingly, allowed.
35 . Send down the LCR with a copy of this judgment and order.
36 . Also send a copy of the judgment to the Superintendent of Jail, Tinsukia, for furnishing to the accused appellant.
37 . This Court records its appreciation for the assistance rendered by learned Amicus Curiae, Mr. B. Baruah. Learned Amicus Curiae be paid an amount of Rs. 7,500/-, as remuneration.
JUDGE JUDGE
Comparing Assistant
2 issues framed by the court
Whether the judgment of conviction relying on circumstantial evidence satisfies the High Court test requiring a chain that excludes reasonable doubt.
Whether the accused-appellant had committed the homicidal death of his deceased son.
Colour shows how this judgement treated each authority
Jaharlal Das v. State of OrissaReferred¶24
Jaharlal Das v. State of Orissa
2 provisions across 1 enactments
Junabor Saikia
The State of Assam
Suman Shyam
Hitesh Kumar Sarma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
