Andai Basumatary @ Pradip And 3 Ors vs State Of Assam

,

Mir Alfaz Ali, J",

Heard Mr. B.B. Narzary, learned counsel assisted Mr. S. Chauhan for the appellants in Crl. A. No. 117/2016, Mr. R. M. Choudhury, learned",

Amicus Curiae for the appellant in Crl. A.(J) No. 68/2015 & Mr. A. Choudhury, learned counsel for the appellant in Crl. A. No. 178/2016. Also heard",

Mr. M. Phukan, learned Addl. Public Prosecutor for the State respondent No. 1, Mr. M. Kalita, learned counsel for the respondent No. 2/informant in",

Crl. A.(J) No. 68/2015 and Ms. Meghali Barman, learned Amicus Curiae for the respondent No. 2/informant in both Crl. Appeal Nos. Nos. 117/2016",

and 178/2016.,

All these three appeals arose out of the judgment and order dated 16.05.2015 passed by the learned Sessions Judge, Chirang, in Sessions Case No.",

128(D)/2015. By the said judgment, the learned Sessions Judge convicted the appellants under Sections 302/201 IPC and sentenced them to",

imprisonment for life under Section 302 IPC and rigorous imprisonment for two years under Section 201 IPC. The appellants/accused were also,

sentenced to fine of Rs. 3,000/- each & Rs.1,000/- each u/s 302 and 201 IPC respectively with default stipulation.",

As per the prosecution case, on 06.11.2011, eight accused persons named in the FIR forcibly took away the mother and father of the informant,",

namely, Smt. Bulao Narzary and Raman Narzary respectively. Later on, they were killed by the said accused persons and buried the bodies in the",

cremation ground. An FIR was lodged by PW-1, Amar Narzary, on the basis of which, police registered Dhaligaon P.S. Case No. 141/2011 under",

Sections 143/302/201 IPC and commenced investigation. In course of investigation, the police recovered the bodies of the victims, prepared the",

inquest report, conducted postmortem examination, recorded the statement of the witnesses and on completion of investigation, laid charge sheet",

against the eight accused persons, including the present appellants. Out of the eight accused persons named in the charge sheet, one Gauri Boro was",

declared absconder, as his attendance could not be procured and eventually the present appellants stood trial.",

In course of trial, learned Sessions Judge framed charges against the appellants under Section 302/201 IPC, to which, all the appellants pleaded not",

guilty. In order to prove the charges, prosecution examined 14 witnesses and on appreciation of the evidence, learned Sessions Judge, convicted the",

appellants under Section 302/201 IPC and awarded sentence as indicated above.,

Aggrieved by conviction and sentence, the accused/appellants, have preferred the instant appeal.",

We have considered the submissions made by the learned counsels for the appellants as well as the respondents.,

Apparently there was no direct evidence, as no one has seen the accused persons committing murder of the victims. The learned Sessions Judge,",

primarily relying on the circumstantial evidence, convicted the appellants. Learned counsel for the appellants contended, that the circumstances relied",

by the learned Sessions Judge were not proved beyond doubt, and as such the conviction and sentences of the appellants are not sustainable.",

The law with regard to the nature and standard of circumstantial evidence required for proving the guilt of the accused in a criminal trial is by now,

well settled. In the case of Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343, the Apex Court observed as under:",

“…………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 should 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 should be such as to exclude every hypothesis",

but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a",

conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done,

by the accused. ….â€​,

The Apex Court in the case of Sharad Birdhi Chand Sarda vs State Of Maharashtra reported in (1984) 4 SCC 116 dealing with the standard of,

evidence required to prove a criminal case resting on circumstantial evidence held as follows:,

“153. 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 established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be,

noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a,

grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji,

Sahabrao Bobade & Anr. V. State of Paharashtra where the following observations were made,

Certainly, it is a primary principle that the accused must be and not merely may 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.""",

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be",

explainable on any other 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, and",

(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. 153. These five golden principles, if",

we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.â€​",

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.â€​",

In Md. Arif Vs. State (NCT of Delhi) reported in (2011) 13 SCC 621, the Apex Court held as follows:",

“The law on the circumstantial evidence is, by now, settled. In Sharad Birdhichand Sarda Vs. State of Maharashtra [1984 (4) SCC 116,] this Court",

drew out the following test for relying upon the circumstantial evidence:-,

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.",

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on",

any other 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, and",

(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.""",

The principle of this judgment was thereafter followed in number of decisions, they being Tanviben Pankaj Kumar Divetia Vs. State of Gujarat [1997",

(7) SCC 156], State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru [2005 (11) SCC 600, ]Vikram Singh & Ors. Vs. State of Punjab [2010 (3)",

SCC 56], Aftab Ahmad Anasari Vs. State of Uttaranchal [2010 (2) SCC 583] etc. It is to be noted that in the last mentioned decision of Aftab Ahmad",

Anasari Vs. State of Uttaranchal (cited supra), the observation made is to the following effect:-",

In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first",

instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the",

proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of all the facts taken together is conclusive in",

establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are",

not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean,

that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the",

accused, howsoever extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground",

for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been",

done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to",

lend assurance to the Court..........."" (Emphasis supplied).â€​",

In Madhu Vs. State of Kerala reported in (2012) 2 SCC 399 held as follows:,

“5.The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only,

circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial,

evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn",

from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to",

the benefit of doubt.â€​,

It is, thus, the settled principle that in a case resting solely on the circumstantial evidence, prosecution must prove each and every circumstance",

conclusively and solidly beyond all reasonable doubt and the circumstances so proved, taken cumulatively must form a complete and unbroken chain of",

events leading to the inescapable conclusion, that it was none but the accused/appellant, who committed the offence. In other words, chain of",

circumstances must be consistent only with the guilt of the accused and inconsistent with his innocence.,

Keeping in mind the above principle, we now proceed to scan the evidence brought on record.",

PW-1, Amar Narzary testified that at about 8 O’clock in the morning, the accused/appellant, Joysing Boro came to his house and asked for",

the ‘Kachani’ (a kind of garland prepared of herbal used for curing illness). When his mother refused to provide the ‘’Kachani’’,",

Joysing remained waiting there and after a little while Bishnu, Rabiram and Rudam Basumatary came there. Bishnu and Rabiram took away his",

mother on their bike. Out of fear, he could not put up any résistance. On the same day, at about 3 PM, again the accused Kantal Patgiri, Sambaru",

Narzary, Annai Basumatary and Magarsing Boro came and took away the father of the informant with them, alleging that they were practicing",

witchcraft. He informed the village headman about the incident, who asked them to remain quiet and on the following day, at about 7 AM, 4/5 ABSU",

members came there and advised him to lodge the FIR. He also stated that the villagers noticed the bodies of the victims in the cremation ground. On,

the next day, having came to know from the villagers that the bodies of their parents were buried in the cremation ground, he lodged the FIR. During",

cross examination of this witness, it was elicited that about 250 persons came to their house on the day of occurrence.",

PW-2, the wife of the PW-1 deposed in the same tune and stated that at about 7 AM in the morning, accused Joysing came and asked for the",

“Kachani†from her mother-in-law, but she refused to give the same. After a little while Rabiram and Bishnu came there and took away his",

mother-in-law. Around 4/5 PM, on the same day, the accused Magar Singh, Andai, Sambaru, Kantal and Rudan took away her father-in-law towards",

the cremation ground. On the next day, ABSU members came to their house and she also came to know that bodies of her parents-in-law were lying",

at the cremation ground. Her brother-in-law Mangal Singh (PW-7) came to see the bodies and after his coming back and confirming the matter, her",

husband lodged the FIR. During cross examination, this witness stated that about 200 to 250 villagers assembled at their house.",

PW-4 Raju Kumar Mushahary deposed, that when the daughter of Joysing Boro fell ill he sought medicine from the deceased Bulao who refused",

to provide medicine, whereupon he had a quarrel with Bulao Narzary. She further stated that prior to the aforementioned quarrel, Jay Singh and some",

others had picked up Bulao and they had killed them in the cremation ground near Kujia river. He further stated that police was informed, who",

exhumed the bodies of the victim from the cremation ground. He also deposed that the accused persons were also present there along with the,

villagers, and showed the place where the dead bodies were buried. According to him, police also seized a hoe fitted with bamboo handle and a",

‘Beki’ dao from the cremation ground. During cross-examination, this witness stated that he had no knowledge as to who picked up Bulao",

Narzary and Raman Narzary from their house. She also stated that about 100 people assembled at the cremation ground, where the accused persons",

were also present and he could not say as to who amongst the people gashed there showed the place where the bodies were buried.,

PW-5 Promod Boro stated that there was a meeting in presence of ABSU members, where the complainant stated about the occurrence.",

According to him, the dead body of Bulao Narzary and Raman Narzary were found in the cremation ground and he also accompanied the police along",

with others, when the dead body was recovered.",

PW-7, the brother of the PW-1, stated that at about 7.30 to 8.00 AM, when he was in his shop, his brother Amar (PW-1) came to his shop and",

told that the accused Joysing Boro, Bishnu Boro, Magarsingh Boro and Rabiram Boro came to their house and sought for the “Kachani†from his",

mother. When she refused, they lifted his mother and took away with them. Immediately, he came home with his brother and again left for his shop.",

In the evening, PW-1 again informed him that accused Kantal Patgiri, Andai Basumatary, Magar Singh and Rudam had come to their house and took",

away his father. He further stated that they were waiting for two nights with the hope that their parents will come back. However, after two nights,",

the accused persons came and told that his parents died and they were already buried in the cremation ground and asked him to perform the funeral,

rites. He further stated, that later on police came and exhumed the bodies from the cremation ground.",

Information given.

Department of the I/C

along with staff.

Ext. 9(1) Sd/- Illegible

Sessions Judge,

Bongaigaon","Shri Jayanta Basumatary, S/o Lt. Tarun Basumatary, a resident of Moinaguri, P.S.- Sidli.

Dist. â€" Chirang and president, ABSU, Chirang inform that on 06/11/11, some people of

Dimakumari village killed a couple on suspicion of practicing black magic and kept their

bodies buried in the crematorium. To that effect, I made a prayer before the O/C, Dhaligaon

for sending the Magistrate and started off to the P.O., i.e., Dimakumari village accompanied

by constable 118 Bedanta Das and ½ Section ASRF Bn. ASI R. Saikia remained in the

charge of the police station.

Ext. 9 (2)

Sd/- Nil

,

Another circumstances relied by the learned Sessions Judge purportedly on the basis of the oral testimony of PW-3, that the daughter of Jaysingh",

died because of some ailment and the witchcraft practiced by the deceased Bulao Narzary and she was held responsible for the death of,

Jaysingh’s daughter. Learned trial court observed that the factum of death of Jaysingh’s daughter because of illness was proved by,

unchallenged oral testimony of the PW-3. We have already mentioned hereinabove that PW-3 was a mere hearsay witnesses, inasmuch as, she",

clearly deposed in her cross-examination, that she could not say as to from whom, she had learnt about the occurrence. Learned trial court was",

perhaps swayed by the examination-in-chief of PW-3, without noticing her cross-examination. The purpose of cross-examination is to test the veracity",

of a witness and therefore, the testimony of a witness has to be considered as a whole and the cross-examination of witness cannot be brushed aside,",

otherwise, the very purpose of cross-examination get frustrated. PW-1 also stated that Jayasingh came to their house and asked for the",

‘kachani’, which the victim Buloa refused to give. Therefore, from the above evidence, the circumstances relied by the learned Sessions Judge,",

that the death of the daughter of the accused Jaysingh was caused, because of practicing witchcraft by Bulao and the finding, that such circumstance",

was proved by the uncontroverted oral testimony of PW-3, does not appear to have borne out of the evidence on record. Therefore, said circumstance",

also cannot be held to have been proved beyond reasonable doubt.,

The learned Sessions Judge also placed reliance on the circumstances of “last seen together†and held that the accused persons took away,

the victims from their house and thereafter their dead bodies were recovered and the accused/appellants failed to provide any explanation, as to who",

caused the death of the victims or how the death was caused. According to PW-1 at about 8 am in the morning initially Jaysingh Boro came and,

asked for the “kachani†from the victim Bulao and on her refusal to give the same, she remained waiting there. Thereafter, Bishnu, Rabiram and",

Rudam (not accused) came and then, Bishnu and Rabiram took away the victim Bulao in a motorcycle and at about 3 O’clock, Kantal, Sambhu,",

Andai and Magar Singh took away the victim Raman. In the FIR lodged by the PW 1, it was stated that Kantal, Jaysingh, Sambhu, Rabi Ram, Andai,",

Magar, Gauri and Bishnu took away the mother and father of PW-1 at 8 am and 3 pm respectively on 06-11-2011.",

PW-2 stated that Rabi Ram and Bishnu took away his mother-in-law on a motorcycle. PW -2, however, did not state anything about Rudam.",

Therefore, there is no evidence at all to prove, that the accused Jaysingh was involved in taking away the victims, inasmuch as, evidently Jaysingh was",

waiting in the house of the victims and she also did not come along with the other accuseds. PW-1 and PW-2 deposed that the accused persons took,

away their parents on 06-11-2011, whereas, according to PW-7, who is also one of the son of the victims, the victims were abducted on 05-11-2011,",

inasmuch as, PW-7 categorically stated, that after abduction of their parents they were waiting for two nights with the hope that the victims may come",

back and thereafter, police was informed. Evidently police was informed on 07-11-2011. If his evidence is believed, then the occurrence of abduction",

of the victims from their house took place on 05-11-2011 and not on 06-11-2011 as deposed by PW-1 & PW-2. It is also in the evidence of PW-7, that",

PW-1 informed him in the morning that Jaysingh Boro, Bishnu Boro, Magarsingh Boro and Rabiram Boro came in the morning and took away his",

mother. Therefore, what we notice in the testimony of PW-1 is that he is not consistent in his version. In the FIR, he stated that initially all the eight",

accused persons came together and took away his mother and then their father, at 8 am and 3 pm respectively. While deposing in court, he stated that",

three persons, namely, Bishnu, Rabiram and Rudam (not accused) came, out of whom, Bishnu & Rabiram took away his mother It was also in the",

evidence of by PW-1 & PW-2. that at the time of occurrence about 200/250 people assembled and no resistance was given out of fear. Therefore, at",

least there was absolutely no evidence on record to show, that accused Jaysingh was involved in abducting the victims.",

Having regard to the inconsistency in the testimony of the PW-1 at different stages with regard to the involvement of all the accused persons in,

taking away the victims forcibly and the evidence of PW-7 as well as PW-1 & PW-2 regarding the date of abduction, coupled with the facts that",

about 200/250 persons assembled at the time of occurrence, we are of the considered opinion, that the circumstances of taking away the victims by",

the appellants also cannot be held to have been conclusively proved beyond all reasonable doubt. Because it is the settled principle that the suspicion,",

howsoever strong may be, cannot substitute the proof beyond doubt. This apart, even if it is assumed for the sake of argument, that some of the",

accused were involved in taking away the victims from their house, from the evidence of PW-7, it is apparent that incident of purported abduction of",

the victims took place on 05/11/11, though, PW-1 & PW-2 tried to project that it was on 06/11/2011 and the bodies were recovered after two days.",

Apparently there is nothing in the medical evidence, as to the time of death of the victims, and as such, there is also no material on record to show,",

that death of the victim was caused immediately after the abduction or there was close proximity of time of death and the taking away of the victims.,

What therefore, apparent is that that there was long gap of time in between the taking away of the victims and when the victims were found dead.",

Therefore, even if it is assumed for the sake of argument, that some of the appellants might be involved in abducting the victims (nor proved",

conclusively), in view of the evidence, that about 200/250 people came, the possibility of somebody else intruding in the intervening time and causing",

the death of the victims, cannot also be ruled out. It has been consistently held by the Apex Court in a catena of decisions that “last seen theoryâ€",

comes into play, where the time gap between 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.,

In the above facts and circumstances, we are of the considered opinion that neither the circumstances relied by the learned trial court have been",

proved conclusively beyond reasonable doubt, nor the chain of events was complete so as to lead to the irresistible conclusion that it was none else,",

but the appellants, were the perpetrator of the offence. Therefore, the impugned judgment of the learned trial court recording conviction and awarding",

sentence u/s 302/201 IPC cannot be maintained. Accordingly, we set aside the conviction and sentence of the appellants and allow the appeals.",

The appellants be set at liberty forthwith, if not required in any other case.",

Before parting, we appreciate the assistance rendered by Mr. R.M. Choudhury, learned Amicus Curiae for the appellant in Crl. Appeal (J)",

No.68/2015 and Ms. Meghali Barman, Amicus Curiae for the respondent No. 2/informant in both Crl. Appeal Nos. 117/2016 and 178/2016 and hereby",

provide that they will be paid Rs. 7,500/- each as their professional fees. Upon production of a copy of this judgment, the Gauhati High Court Legal",

Services Committee, Guwahati shall pay the said fee to the learned Amicus Curiae, Mr. R.M. Choudhury and Ms. Meghali Barman.",

Send back the LCRs.,