Shankar Gautam vs State Of Assam

Michael Zothankhuma, J

Heard Mr. B. Prasad, learned Amicus Curiae for the appellant and Ms. B. Bhuyan, learned Senior counsel and Addl. Public Prosecutor, Assam, assisted by Ms. R. Das, learned counsel.

This appeal has been filed against the impugned judgment dated 06.08.2019, passed by the learned Sessions Judge, Baksa, Mushalpur, in Sessions Case No. 341/2018, by which the appellant has been convicted under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.10,000/-, in default, simple imprisonment for one year.

The prosecution case, in brief, is that an FIR dated 13.05.2018 had been submitted by the informant, who is also the Prosecution Witness No.1. The informant stated that the deceased and the appellant are brothers and were the nephews of the informant. The deceased and the appellant were living in the ancestral home of the informant for many years. On 11.05.2018, after dinner, when they had gone to sleep at about 12 midnight, the appellant Shankar Gautam hit the head of his brother, the deceased Kuldip Gautam, with a bamboo lathi, which resulted in severe head injury and thereafter the appellant fled from the place of occurrence. The deceased was thereafter taken to Dr. Kankan Rabha Nursing Home at Tamulpur. However, the doctors declared him dead.

Pursuant to the FIR dated 13.05.2018, Tamulpur P.S. Case No. 158/2018 under Section 302 of the IPC was registered on 13.05.2018 under GDE No. 191 dated 13.05.2018. The I.O. thereafter started the investigation and on completing the same, filed a charge sheet against the appellant, having found a prima facie case under Section 302 of the IPC against the appellant. The learned Trial Court thereafter examined 11 Prosecution Witnesses and after examining the appellant under Section 313 Cr.P.C., it came to a finding that the appellant had caused the death of his brother. The appellant was accordingly convicted and sentenced under Section 302 of the IPC.

The counsel for the appellant submits that there is no eye witness to the crime and though the evidence of the prosecution witnesses is to the effect that there was an extra judicial confession made by the appellant before the public in Thelamara village and to the villagers where the incident had occurred, no witness had been produced by the prosecution before the learned Trial Court, who had heard the appellant giving any such extra judicial confession.

The appellant’s counsel submits that though the alleged weapon was seized by the police, the same had not been sent to the FSL for examination, to prove that the said seized weapon had been used by the appellant for causing the death of the deceased. He further submits that the FIR dated 13.05.2018 had been registered as GDE No. 191 dated 13.05.2018. However, the Inquest Report dated 12.05.2018 shows that the inquest had been made pursuant to Kumarikata Out-Post GDE No. 172 dated 12.05.2018.

The appellant’s counsel submits that in view of the above, the investigation appears to have commenced on the basis of the GDE No. 172 dated 12.05.2018. However, there is nothing to show as to the basis for making the GDE No. 172 and as such, there could have been an improvement of the GDE No. 172, by way of the subsequent FIR filed on 13.05.2018.

The learned counsel for the appellant submits that there is no evidence linking the appellant to the death of his brother and suspicion by itself, is not sufficient to take the case of proof, as held by the Supreme Court in the case of The State of Punjab vs. Bhajan Singh & Others, reported in (1975) 4 SCC 472. He also submits that in terms of the judgment of the Supreme Court in Kali Ram vs. State of Himachal Pradesh, reported in (1973) 2 SCC 808, if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other his innocence, the view which is favourable to the accused should be adopted. Thus, when a reasonable doubt arises regarding the guilt of the accused, the benefit of that doubt cannot be withheld from the accused. He accordingly submits that the appellant can be convicted, only if there is a certainty with him being guilty and the accused “must be” and not “merely may be” guilty of a crime. He submits that as the present conviction is based purely on circumstantial evidence, the benefit of any two views or doubt has to be adopted in favour of the appellant.

The learned counsel for the appellant further submits that the appellant has taken the plea of alibi in the present case, inasmuch as, he was not at the place of occurrence, when the crime had occurred, but was in the house of the deceased at Thelamara village, which is around 20 km away from where the deceased had died. He also submits that when the case against the appellant is based merely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the appellant or the guilt of any other person. However, in the present case, there is no complete chain of circumstantial evidence pointing to the guilt of the appellant. In this respect, he has relied upon the judgment of the Supreme Court in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116. He also submits that as the prosecution has not been able to establish a link between the bamboo stick that had been recovered with the crime alleged to be done by the appellant, as the same had not been sent to the FSL for examination for trace out of blood which could relate to the deceased, the seized bamboo stick could not be used as a basis for linking the appellant with the crime. In this respect, he has relied upon the judgment of the Supreme Court in the case of Mustkeem @ Sirajudeen vs. State of Rajasthan, reported in (2011) 11 SCC 724. He accordingly submits that when the circumstantial evidence does not implicate the appellant and no motive has been established by the prosecution for the appellant to have killed his brother, the conviction of the appellant by the learned Trial Court was without any basis and erroneous. The impugned judgment should accordingly be set aside.

On the other hand, the learned Additional Public Prosecutor submits that the evidence of the prosecution witnesses shows that the appellant and the deceased lived together in the ancestral home of their mother and uncle (informant). However, the uncle (informant), who is PW-1, did not live in the ancestral house along with the deceased, appellant and his sisters. The learned Additional Public Prosecutor submits that the deceased and the appellant were living in the ground floor, while their mother and sisters were living in the upper floor of the ancestral house. The appellant and the deceased used to sleep together by sharing one bed. She submits that as per the evidence of the mother (PW-7), who stated that on 11.05.2018, PW-7 went to sleep in the 1st floor of the house, while the appellant and the deceased were sleeping on the same bed at about 12 midnight in the ground floor. On hearing a sound, PW-7 woke up and called her sons. Initially no reply came. However, sometime later, the appellant replied to her that he had come out from the house. Thereafter, PW-7 along with Manju went down to the ground floor and saw the deceased was lying near the door with a bleeding head injury. Further, PW-7 saw the appellant fleeing with his baggage. The learned Addl. P.P. submits that the above evidence of the mother (PW-7) clearly gives a lie to the plea of alibi taken by the appellant, that he was not at the place of occurrence at the time the incident had occurred.

The learned Additional Public Prosecutor further submits that the appellant was to have given an explanation, as to what had happened within the secrecy of the four walls of the room that he had been sharing with the deceased, under Section 106 of the Evidence Act. However, the appellant has not only not done the same, but he has also lied that he was not at the place of occurrence at the relevant point of time, which has been proved by PW-7. In support of her submission that the appellant was required to give an explanation with regard to the circumstances that led to the death of the deceased under Section 106 of the Evidence Act, the learned Additional Public Prosecutor has relied upon the judgment of the Supreme Court in the case of Uma & Anr. vs. The State Rep. by the Deputy Superintendent of Police, Crl. A. 757/2015, which was disposed of, vide judgment dated 22.10.2024.

The learned Additional Public Prosecutor further submits that for the plea of alibi succeed, the appellant was to prove the plea of alibi with absolute certainty, so as to exclude the possibility of his presence from the place of occurrence, as required by the law laid down by the Supreme Court in the case of Binay Kumar Singh vs. The State of Bihar, reported in (1997) 1 SCC

However, the same has not been done.

The learned Additional Public Prosecutor submits that as the investigation had apparently started on the basis of the G.D. Entry No.172 dated 12.05.2018, as has been reflected in the Inquest Report, which has been exhibited as Ext.-2, the contents of the FIR dated 13.05.2018, which has been registered as G.D. Entry No.191 dated 13.05.2018, would have to be considered as a Statement made under Section 161 Cr.P.C by the informant (PW-1). She accordingly submits that no prejudice has been caused to the appellant on the investigation having been conducted, on the basis of the G.D. Entry No.172 dated 12.05.2018, as the basis for the G.D. Entry No.172 dated 12.05.2018 is shown in Entry 01 in the Case Diary at 5:30 a.m, where it is recorded as follows:

“Now, I open MCD for the day.

Note: Information received from UBC Pankaj Nath, In-Charge of Kawli Police Patrolling Post that one murder case has been reported to him from Motigaon village by Gaon Burah of the village. Dead body of the deceased is present at the P.O. so I instructed UBC Pankaj Nath to visit the P.O. of the case immediately along with the available staff and I have informed to senior officer and executive Magistrate Tamulpur regarding the case over phone and now going to depart from the outpost to the P.O. of the case.”

The learned Additional Public Prosecutor submits that even though the motive for the crime has not been established by the prosecution, the fact that the appellant fled from the scene of the crime is relevant to the question of conduct of the appellant, in terms of Section 8 of the Evidence Act. The learned Additional Public Prosecutor thus submits that the appeal should be dismissed.

We have heard the learned counsels for the parties.

With regard to the question as to whether the investigation had been initiated on the basis of the GDE No. 172 dated 12.05.2018 or the GDE No. 191 dated 13.05.2018, we find that GDE No. 172 dated 12.05.2018 has been made the basis for the investigation initiated by the police, inasmuch as, all the documents, like the post-mortem report, seizure memo and arrest memo, all carry the GDE No. 172 dated 12.05.2018. As such, the FIR dated 13.05.2018 would only have to be considered as statement made by the informant (PW-1) under Section 161 Cr.P.C. Further, there is no infirmity with the basis for registration of GDE No: 172 dated 12.05.2018, as can be seen from the contents of the Case Diary. Also, the evidence of the Investigating Officer (I.O) i.e. the PW-11 is to the effect that while being posted at Kumrikata O.P. as in-charge on 12/05/2018, UBC Pankaj Nath of Kawli P.P. informed him over phone at around 5-30 a.m. that Pankaj Nath had been informed by the local Gaonburha regarding a murder that had taken place at Matigaon village. Accordingly, he had registered Kumrikata O.P. GDE No. 172 dated 12/05/2018. The above clearly shows that there was no infirmity with the registration of GDE No. 172 dated 12/05/2018 and that the subsequent FIR which had been registered as GDE No. 191 dated 13/05/2018 could be taken to be a statement made by the informant under section 161 Cr.P.C.

The evidence of PW-1, who is the informant, is to the effect that he had submitted the FIR on the basis of the information received by him through a call, due to which he had rushed to the place of occurrence and found the deceased with severe injuries on his head. The appellant was also found to be absent. PW-1 also stated that he had been informed that the appellant had fled after beating the victim and that the local public of Thelamara village had apprehended the appellant. Further the appellant had admitted his guilt before the public of Thelamara village.

The evidence of PW-2 is to the effect that he had been informed about the incident over phone and that he was a witness to the inquest conducted by the police on the dead body.

The evidence of PW-3 is to the effect that the deceased and the appellant were his nephews. At around 12 midnight of 11.05.2018, while sleeping in his house, he heard a cry by some woman of his neighbourhood. He came out of his house and rushed to his ancestral home and saw the deceased with a bleeding head injury. He also found PW-7, the mother of the appellant and the deceased, who told him that the appellant had assaulted the deceased and run away. PW-3 stated that he did not find the appellant at the place of occurrence. The deceased was thereafter taken to the hospital where the doctor declared the appellant as brought dead. PW-3 stated that the informant then reported the incident to the police and the dead body was sent for post-mortem examination.

PW-3, in his evidence, further stated that, the deceased had purchased a plot of land and house at Thelamara village. PW-3 then stated that, the informant then told the local public of Thelamara to apprehend the appellant, if he came to Thelamara. The public of Thelamara village thereafter apprehended the appellant and handed him over to the police. PW-3 also stated that the appellant confessed his guilt before the public of Thelamara village.

The evidence of PW-4 is to the effect that the appellant had confessed his guilt that he had assaulted the deceased by using a bamboo post. Further he was a seizure witness to the seizure of the bamboo post. Similarly, the evidence of PW-5 is to the effect that the appellant had confessed his guilt regarding the murder of his younger brother before the Police and the public. PW-5 was also an witness to the seizure of the bamboo post.

The evidence of PW-6, who is the aunt of the deceased and the appellant, besides being the sister of PW-7, is to the effect that on the fateful night at around 12 midnight, she heard a sound. Thereafter, PW-6 along with her sister PW-7 went down to the ground floor, where the appellant was sleeping with the deceased. PW-6 saw the deceased lying at the doorstep with head injury. She then brought the deceased to a bed and told PW-1 (informant) to come to the spot. PW-1 then took the injured deceased person to the hospital. The doctor declared the deceased as brought dead. The police was informed. PW-6 also stated that she did not find the appellant in the house at the relevant point of time and despite calling him, she could not find him. PW-6 also stated that the appellant was apprehended by the villagers of Thelamara and that he confessed his guilt before the public and before PW-6. PW-6 also identified the bamboo stick/post used by the appellant.

The evidence of PW-7, who is the mother of the deceased and the appellant, is to the effect that the event occurred on 11.05.2018, while she was sleeping in the 1st floor of the house. On the ground floor, the appellant was sleeping along with the deceased on the same bed. At about 12 midnight, on hearing a sound from the ground floor, PW-7 called her sons to know the origin of the sound. No one replied. However, after some time, the appellant replied to the mother, stating that he had gone out of the house. Thereafter, PW-7 and Manju (PW-6) went down to the ground floor to find out the source of the sound. PW-7 saw the deceased lying near the door with a bleeding head injury. She picked up the deceased to know the reason for the head injury. However, there was no reply. She then called out to the appellant several times, but he did not respond. PW-7 stated that the local public of Thelamara village apprehended the appellant and the appellant confessed his guilt before the public of Thelamara village, stating that he had killed his brother. The public thereafter handed over the appellant to the police.The appellant confessed that he had killed the deceased before the police and he brought out a bamboo stick from the house, with which he had committed the crime.

In her cross-examination, PW-7 stated that she had a suspicion that the appellant had committed the crime, when the appellant had fled away with his baggage.

PW-8 and PW-9 are the seizure witnesses of the bamboo post seized by the Police. PWs-8 & 9 stated in their evidence that the appellant had brought out the offending bamboo post by which he had hit his brother, from inside the house and that they were seizure witnesses for the same.

The evidence of Medical Doctor (PW-10) is to the effect that he conducted the post-mortem examination on the deceased on 12/05/2018 and that he found the following:-

“A male dead body average build, swarthy complexion with black hair lying. Rigor morites- started. Injury:1. laceration to occipital region of head. 2. blood contusion to right side of forehead above right eyelid. Scalp of the occipital region is lacerated. Heamatoma seen in occipital region. Internal hemorrhage also there seen.”

Further, in his opinion, death was due to shock caused by hemorrhage to the brain.

The evidence of the I.O. (PW-11) is to the effect that he had registered th GDE No. 172 dated 12/05/2018 on the basis of an information given by UBC Pankaj Nath of Kowli P.P., who had stated that he had been informed by the local Gaonburha that a murder had taken place at Matigaon village. PW-11 also stated that after he had conducted inquest over the dead body, he sent the dead body for post-mortem examination. He had also examined the witnesses. Further, the appellant had shown PW-11 the bamboo stick, which was used as a weapon. He also stated that he received the FIR submitted by the informant (PW-1) on 13/05/2018 and the same was registered as GDE No. 191 dated 13/05/2018. PW-11 also stated that he submitted an application before the Court to record the confessional statement of the appellant. However the appellant refused to give a confession.

On a perusal of the evidence adduced by the witnesses, it is quite clear that the circumstantial evidence points the finger of blame for the killing of the deceased on the appellant. The appellant and the deceased were sharing the same bed on the ground floor of their ancestral house, while their mother (PW-7) and PW-6 were on the first floor of the same house. PW-7 stated that on hearing a noise, she had called out to her sons. Though, no reply had been given initially, the appellant replied to her call after some time. On going to the ground floor along with Manju (PW-6), they saw the deceased with a bleeding head injury. Further, in her cross examination, PW-7 stated that as the appellant had fled with his baggage, she had a suspicion that the appellant had caused the death of the deceased. The very fact that the appellant had replied to the call of PW-7 at around the time when the sound was heard by PW-7, goes to show that the appellant was present at the place of occurrence, at the time when the incident occurred.

The reply given by the appellant to the questions put to him during his examination under section 313 Cr.P.C. is basically to the effect that the evidence are false and that he did not know anything. Further, in reply to question no.2 regarding the evidence that the appellant had confessed his guilt before the Police, the appellant had taken the plea of alibi that he was at Thelamara. This is, however, proved to be a false statement keeping in view the evidence of PW-7, who stated that the appellant had replied to her call and that the appellant had fled with his baggage.

PW-3 in his evidence has stated that on rushing to his ancestral home, he saw the deceased and PW-7. PW-7 told him that the appellant had assaulted the deceased and fled. Thus, the evidence of PW-3 corroborates the testimony of PW-7. The evidence of PWs 8 & 9 is to the effect that the appellant had brought out the weapon used by the appellant for killing his brother from the house. There is nothing to shake or contradict the said evidence.

In the case of Wazir Khan Vs. State of Uttarakhand [(2023) 11 SCR 39], the Supreme Court has held that a case based on circumstantial evidence where no eye witnesses is available, there is another principle of law which must be kept in mind. The principle is that when incriminating circumstances is put to the accused and the accused offers no explanation or offers an explanation which is found to be untrue, then the same become an additional link in the chain of circumstances to make it complete.

In the case of Trimukh Maroti Kirkan v. State of Maharashtra, [2006] Supp. (7) S.C.R. 156, the Supreme Court had pointed out that there are two important consequences that play out when an offence is said to have taken place in the privacy of a house, where the accused is said to have been present. Firstly, the standard of proof expected to prove such a case based on circumstantial evidence is lesser than other cases of circumstantial evidence. Secondly, the appellant would be under a duty to explain as to the circumstances that led to the death of the deceased. In that sense, there is a limited shifting of the onus of proof. If he remains quiet or offers a false explanation, then such a response would become an additional link in the chain of circumstances. In terms of Section 106 of the Evidence Act, the Appellant has not discharged his burden as to how the injuries were sustained by the deceased, when they both slept on the same bed on the night of the occurrence.

In the case of Vinay Kumar Singh vs. State of Bihar, reported in (1997) 1 SCC 283, the Supreme Court has held that in a criminal case, where the burden on the prosecution is to prove that the accused was present at the scene and had participated in the crime, the plea of alibi could only be considered after the burden had been discharged by the prosecution satisfactorily. When the presence of the accused at the scene of occurrence had been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that the accused was elsewhere when the occurrence occurred. However, if the evidence adduced by the accused is of such a quality and of such a standard that the Court entertains some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would be entitled to the benefit of that reasonable doubt. The Supreme Court thus held that due to the above reason, strict proof was required for establishing the plea of alibi. In the present case, not only has the prosecution succeeded in proving that the appellant was present at the scene of the crime when the incident occurred, but it has also proved the fact that the appellant had fled the place of occurrence. Thus, the plea of alibi taken by the appellant is a lie and as such, we do not accept the plea of alibi taken by the appellant.

In the present case, the evidence does not give any possibility of there being two views. Further, on considering the evidence adduced and reasons given by the learned Trial Court for convicting the appellant, we are of the view that the question of suspicion, as to whether the appellant had killed his brother, is absent, inasmuch as, the circumstantial evidence points to the guilt of the appellant for the death of his brother.

In the case of Sharad Birdhi Chand Sarda (supra), the Supreme Court has laid down 5 golden principles which constitutes the basis for deciding a case on circumstantial evidence, wherein the facts so established should be consistent only with the hypothesis of the guilt of the accused and the circumstances should be of a conclusive nature, wherein they exclude every possible hypothesis except to the fact that the accused was guilty of the crime. In the present case, the fact that the appellant had answered the call of PW-7 at midnight in the ancestral house where he had been living with the deceased and his mother, coupled with the fact that PW-7 had stated that the appellant had run away, proves the fact that the appellant was at the scene of the crime at the relevant point of time when the deceased was found bleeding with a head injury. No explanation has been given by the appellant as to how injury had been caused to the deceased even though he was at the place of crime, in terms of Section 106 of the Evidence Act.

The evidence of PW-8 & PW-9 is to the effect that the appellant had brought out the bamboo (weapon) used for hitting the deceased. Further, the plea of alibi taken by the appellant has been shattered by the prosecution, proving the fact that the appellant was present at the scene of the crime at the relevant point of time. The conduct of the appellant in fleeing the place of crime shows the guilty conscience of the appellant, in terms of Section 8 of the Evidence Act. All the above circumstantial evidences, in our view lead us to point the finger of blame only towards the appellant, as being the person who had murdered his younger brother. In the facts and circumstances of this case, just because the Prosecution could not establish a motive for the crime, does not lead us to believe or doubt the fact that the appellant had killed his brother. Accordingly, we do not find any ground to interfere with the impugned judgment and order passed by the learned Trial Court.

The appeal is accordingly dismissed.

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In appreciation of the assistance provided by the learned Amicus Curiae, his fee should be paid by the Assam State Legal Services authority.