Gauhati High Court
Appellant vs The State Of Assam on 25 July, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/22
GAHC010175572016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/117/2016
GUGUL MIYAN @ GOPAL
......Appellant
VERSUS
1. THE STATE OF ASSAM.
2:SRI SUKHDEO GARH
SON OF LT. RAM PRASAD GARH
VILLAGE NO.1 NAHARTALI GAON
P.S. MERAPANI,
DISTRICT.-GOLAGHAT
ASSAM.
......Respondents.
Advocate for the Appellant : Ms. R.D. Mzumdar, Amicus Curiae.
For the Respondent No. 1 : Ms. B. Bhuyan (Sr. Adv./Addl. P.P)
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
Date of Hearing & Judgment : 25.07.2022
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.] Heard Ms. R.D. Mazumdar, learned Amicus Curiae appearing for the appellant. Also Page No.# 2/22 heard Ms. B. Bhuyan, learned Senior counsel as well as Additional Public Prosecutor, Assam appearing for the State/respondent No.1.
2. This is an appeal from jail.
3. The present appeal has been preferred against the judgment dated 01.10.2016 passed by the learned Sessions Judge, Golaghat in Sessions Case No.73/2010 by which the appellant was convicted under Section 302 of Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for life with fine of Rs.1,000/- (Rupees one thousand) only, and in default of payment of fine, simple imprisonment for another one month. Further, the appellant was convicted under Section 201 and was sentenced to undergo simple imprisonment for 5(five) years and also to pay fine of Rs.500/- (Rupees five hundred) only, and in default, simple imprisonment for another 15 (fifteen) days.
4. The appellant has been convicted based on circumstantial evidences and primarily on the basis of last seen theory.
5. While the Trial Court convicted the appellant as above, the other accused who was charged along with the appellant had absconded during the trial and as such, the appeal has been preferred by the present appellant only against his conviction.
6. The facts in brief leading to the prosecution and conviction of the appellant are that, an FIR was lodged on 12.02.2007 to the effect that at around 9:00 P.M. of 06.02.2007, the appellant along with another accused Hanu Kerketa had come to the house of the deceased, Chandrasai Garh and forcibly took him away allegedly for treatment of the ailing son of the appellant by means of sorcery. Later on, the dead body of the deceased Chandrasai Garh was found on 11.02.2007 in the waters of Doyang River.
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7. Based on the aforesaid FIR, Merapani P.S. Case No.15/07 under Section 302/201 IPC was registered. Consequent thereupon, necessary investigation was carried out, and on completion of the investigation, charges were framed against the appellant as well as the other accused Hanu Kerketa.
8. Accordingly, the appellant and the accused Hanu Kerketa were charged before the Sessions Court on the following two grounds, Firstly, on the 6th day of February, 2007 at about 9 pm at No.1 Nahartoligaon under Merapani Police Station of Golaghat district, they caused death of one Chandra Sai Paule intentionally, in furtherance of their common intention and thereby committed offence under Section 302/34 IPC.
Secondly, on the same day, time and same place as stated in the foregoing charge, they dropped the dead body of the aforesaid Chandra Sai Paule in the water of Doyang River after causing death with the intention of screening themselves from legal punishment, in furtherance of their common intention and thereby committed offence under Section 201/34 IPC.
9. The prosecution examined as many as 8(eight) witnesses.
10. The Trial Court after considering the evidences adduced before trial and after considering the plea of innocence of the appellant, convicted the appellant under Section 302/201 IPC as mentioned above.
Though both the appellant as well as the other accused Hanu Kerketa absconded during the trial, the appellant was subsequently apprehended and put on trial. Thus, the conviction order was passed against only the present appellant and the other accused has been Page No.# 4/22 remaining absconded till now as per records.
11. We will now discuss the evidences on record.
PW1, Dr. Mukul Chandra Gogoi, is the Doctor who conducted the post mortem examination on the dead body of the deceased who found the conditions of the dead body as follows, "I- External Appearance
1. Condition of Subject stout emaciated, decomposed etc. Partially decomposed body of aged male person.
Mud present over some parts of the body.
Both legs and both forearms are tied behind. Mouth tied and closed with cloth. ......................................
II- CRANUM AND SPINAL CANAL
1. Scalp, skull, vertebrae : Hematoma scalp over frontal region.
2. Membrane : Congested.
3. Brain and spinal cord : Clotted blood present over frontal lobe of the brain. ...................................
III- THORAX
1. Walis ribs and cartilages : Healthy.
2. Pleurae : Congested.
3. Laryanx and trach ere : Congested, no water seen.
4. Right lung : Congested, no fluid or water on cut section.
5. Left lung : Congested, no fluid or water on cut section.
6. Pericar (dium) : Congested.
7. Heart :
8. Vessels : Healthy.
....................................."
PW1 stated the head injury mentioned about was ante-mortem and drowning is post mortem and accordingly, he gave the opinion that the death is due to haemorrhage and Page No.# 5/22 shock as a result of head injury sustained by the deceased.
12. PW2, Shri Sukdeo Garh, is the informant and the nephew of the victim who stated that about 4/5 years back, he saw the dead body of the deceased Chandrasai. PW2 stated that on that day, the wife of the deceased told him that in the evening hours, two days before the death of the deceased, the two accused had called the deceased from his house and thereafter, the deceased had not returned home. PW2 also stated that the wife of the deceased told him that the two accused had asked the deceased to perform a puja and later the dead body was found the Doyang River.
13. PW3, Smt. Dolment Powle is the wife of the deceased who stated that at around 9 P.M. one day during in the winter season, about 4 (four) years ago, she along with her husband Chandrasai Paule and children were sleeping in their house. At that time, the two accused awakened her husband and called him out. She also then came out and saw the two accused persons. They told her husband to accompany them and when her husband refused to go out, the two accused forcibly took him away. While she tried to resist them, they defied her resistance and thereafter, her husband did not return. After a week of the incident, she came to know from her neighbor one Sri Laxmi Kol that the dead body of her husband was recovered in Doyang River. On receiving the news, she went to the place of occurrence and saw the dead body of her husband lying in the waters of Doyang River.
In the cross-examination, PW3 stated that her husband used to practice sorcery and provided medicine and treated the people suffering from illness and people used to call her husband at night often for treatment of ailing persons. Sometimes he would be away from home for 3/4 days. However, she stated that she did not state before the police that while Page No.# 6/22 coming out from inside the house, she had seen the two accused though she denied that she had falsely deposed that the accused had forcibly taken her husband. She also mentioned that no information was lodged with the Police Station in connection with the incident of missing of her husband.
14. The other witness, Smt. Rumila Powel was the daughter of the deceased who was examined as PW4 who stated that at around 9 P.M., about 4 years ago, while she was sleeping in her house, the accused Hanu called out her father from outside of their house. Then her mother, father and she herself got up and went outside. The accused Haru Kerketa asked her father to go with him to see the ailing son of the appellant. The appellant was also present. When her father expressed inability to go with him, the other accused Hanu held her father by his hands and pulled him away forcibly. When she started to follow her father, the accused threatened her because of which she did not go further. PW4 also stated that in the night of the incident itself she along with her elder sister Sakuntala, her father-in-law Kamala Koya and Sakuntala's husband Kahar Koay had gone to the house of the appellant in search of her father but they did not find their father there. They were also informed by the appellant's wife that no one was sick in their house. After a week of the incident, the dead body of her father was found in Doyang River. She was informed by her brother-in-law Kahar Koya that the hands and legs of her father were tied.
In the cross-examination, PW4 stated that she did not state before police that accused Hanu Kerketa called her father from outside of their house and she along with her father and mother came outside. She also stated that she did not state before the police that at the night of the incident itself, she along with her elder sister Sakuntala, sister's husband Kahar Koya and her father-in-law Kamala Koya had gone to house of the appellant in search of her Page No.# 7/22 father and that the appellant's wife had informed them that no one is sick in the family. She also stated that she did not state before the police about her brother-in-law Kahar Koya telling her that the hands and legs of her father were tied.
15. The other witness, Sri Romesh Kerkata was examined as PW5 who was the Headman of the Village who deposed that he knew both the appellant and the other accused Hanu Kerkata as well as the deceased and the death had occurred about 5(five) years ago. He deposed that the dead body was found floating on the bank of Doyang River and he went there. He stated that he did not know how the dead body fell in the river nor who had committed the murder.
16. The other witness who was examined was Sri Patrik Kerkata, PW6, another co-villager who deposed that he knew both the appellant and the other accused Hanu Kerkata as well as the deceased. PW6 deposed that he knew nothing about the incident. PW6 identified the dead body in the Doyang River who stated that both hands and legs were tied behind the back. However, he stated that he did not know who had killed the deceased and how.
17. The other witnesses examined were I.Os. of the case, namely, Sri Prafulla Kumar Das, PW7 and Sri Bikul Saikia, PW8.
PW8 stated that on receiving the information of dead body of the deceased Chandrasai Paul floating in the Doyang River who had been missing for last six days, he made the Merapani P.S. G.D. Entry. On that day he recovered the dead body and prepared the inquest report and sent the dead body to the Golaghat Civil Hospital for post mortem examination.
He did not record the statement and examine the witness. However, he mentioned that PW4 Sumila Powel, the daughter of the deceased did not inform him that during the Page No.# 8/22 investigation that she had followed her father whereupon she was threatened and thereafter, she stopped following the accused.
18. As evident from the statements recorded under Section 313 of Cr.P.C., the appellant had denied the allegations made and claimed innocence of all the charges against him.
19. The Trial Court, after considering the evidences on record, convicted the appellant under Section 302/201 of IPC as mentioned above.
20. From the above, it is clear that there was no eye witness as to the death of the deceased. From the evidence, what appears is that the deceased was forcibly taken away from his house by the appellant and another accused Hanu Kerkata.
However, there is no evidence of anybody else seeing the appellant or other accused along with the deceased thereafter. The only other incriminating evidence is abscondance of the appellant and other accused who subsequently surrendered before the Court.
21. The Trial Court, however, on the basis of the aforesaid 2(two) incriminating evidences and other circumstances which came out in course of the trial, held that the prosecution has been able to prove the charge against the appellant beyond reasonable doubt. So, the reasons and conclusions arrived at by the Trial Court which are to be found at para Nos.29, 30, 31, 32 and 34 of the impugned judgment are reproduced hereinbelow for better appreciation.
"29. In the case in hand not only there is last seen circumstance, but also number of facts and circumstances are there on the record which are describes below and militate against the accused and pointed the accusing finger to them:-
(i) Both the accused taken away the victim on 06.02.2007, on the pretext of treating the ailment of the son of the accused Gugul Miyan.
(ii) The pretext of taking the deceased, i.e. for treating the ailment of the son of accused Page No.# 9/22 Gugul Miyan is found to be false, as on that very night, P.W.4 Rumila Paule along with her sister Sakuntala, father-in-law of her sister Kamla Koya and husband of her sister Kohor Koya went to the house of accused Gugul to enquire about her father and they found him absent there and the wife of the accused told them that no member of her family has been suffering from any ailment.
(iii) The accused have intimidated P.W.4 while she followed her father.
(iv) After five days of that occurrence, i.e. on 11.02.2007, the dead body of the deceased was found floating in the river Doyang and post-mortem was conducted on 12.06.2007 at K.K. Civil Hospital.
(v) The limbs of the deceased were found to be tied behind and the mouth was gagged with clothes, which completely ruled out it to be case of suicide.
(vi) The post mortem interval was 3-6 days, as per medical evidence which narrowed down the time gap between last seen together and the time since death and with all probability he was killed before 2 A.M. on that very night i.e. 06.02.2007.
(vii) The accused failed to offer any explanation as to how and when he parted company of the deceased which provides additional link in the chain of circumstances proved against him. (see- State of Rajasthan v. Kashi Ram)
30. These facts and circumstances have strengthened the theory of last seen and they form a chain so complete to rule out the hypothesis of innocence of the accused Guglul Miyan. And failing to offer explanation what has happened to be deceased after his taking away from his house provides additional link in the chain of circumstances against him.
31. It is true that the prosecution side could not establish the motive here in this case. But there is no principle or rule law that where prosecution fails to prove motive for commission of crime, it must necessarily be result of acquittal of the accused. We derived authority in holding so from a decision of Hon'ble Supreme Court in Thomon Kumar Vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380.
32. In the present we find and hold that it was the accused Gugul Miyan who along with accused Hanu Kerkatta caused the injuries to the deceased Chandrasai Paule. The prosecution side has been succeeded in establishing the complete chain of circumstances which are sufficient enough to establish beyond all reasonable doubt and the same and incompatible with hypothesis of innocence of the accused. Thus, we find and hold that this a clear case of homicide. It is true that some delay was there in filing the FIR, Ext.2. While the occurrence took place on 06.02.2007 the FIR Ext.2 was lodged on 12.02.2007. The delay of lodging the FIR is not expressly explained. But we find from the evidence of the P.W.3- Smti. Dolemet Paule that sometimes her husband used to remained away from his house for 3/4 days when people called him for treating patients. Thus, the delay stands explained though not expressly but impliedly that they were waiting for his return and when his dead body was recovered the FIR was lodged. They delay so occasioned here in this case failed to spell inveracity to the prosecution version. Mention to be made here that missing of Chandrasai Paule and recovery of Page No.# 10/22 his dead body at Doyang River and his death because of the ante-mortem injuries established beyond all reasonable doubt from the version of the prosecution witnesses.
33.......................................
34. It also appears from the record that the dead body was found floating in the river Doyang. The medical evidence shows that drowning was post mortem and the injuries were ante mortem. This fact established that the after committing murder of the deceased his dead body was thrown into the river so as to the intention of screening themselves from legal punishment. Thus all the basic ingredients of the charge u/s 201 IPC, which are :-
(a) an offence was committed;
(b) that the accused knew or had reason to believe that an offence had been
committed;
(c) that the accused intended to screen the offender, whether that offender be
himself or another person and
(d) that the accused had disposed of or concealed the dead body with such intention.
also well established against the accused. And on the facts and circumstances i.e. in arriving at house of the deceased together and taking the deceased together and threatening the daughter of the deceased together while she followed her father, it becomes apparent that the accused have shared common intention in killing the deceased and in disposing of his dead body."
22. Thus, as can be seen from the above, the Trial Court took into consideration the evidence which came out in course of the trial that both the accused had taken away the deceased on 06.02.2007 on the pretext of treatment of ailing son of the accused Gugul Miyan. The Trial Court also held that the said pretext on which the deceased was taken away i.e. for treatment of the ailing son of the accused/appellant was found to be false in view of the evidence of PW4, Rumila Paule.
23. The Trial Court observed that PW4 had stated that she had followed her father. However, she was prevented. The Trial Court also held that the dead body was found floating after five days of the occurrence of the incident and that the limbs of the deceased were found to be tied behind and the mouth was gagged with clothes which ruled out the case of suicide.
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24. The Trial Court also held that as per the post mortem examination, the interval between the post mortem and the death incident was 3-6 days which indicates the narrowed time gap between the last seen together and the time since the death and as such in all probability the deceased was killed before 2 A.M. on 06.02.2007.
25. The Trial court also observed that the accused failed to offer any explanation as to how and when he parted the company of the deceased which provided additional link in the chain of circumstances proved against him.
26. The Trial Court also observed that the aforesaid circumstances have strengthened the last seen theory and these form a chain so complete to rule out the hypothesis of innocence of the appellant and failure to offer any explanation by the appellant provides the additional link in the chain of circumstances against him.
27. The Trial Court also took into consideration that though the prosecution could not establish the motive for commission of crime, the same can not necessarily lead to acquittal of the accused.
28. The Trial Court also held that the delay in filing the FIR is not of much significance as the same has been explained properly. The Trial Court held that the offence does not come under any of the Exceptions mentioned under Section 300 of IPC and accordingly, it is a clear case of homicide amounting to murder.
29. The Trial Court, on the basis of medical evidence, held that the death was caused due to injuries on his head and drowning was post mortem. It was observed that it establishes the fact that the accused after committing murder of the deceased threw his dead body on the river with the intention of screening themselves from legal punishment and as such, the Page No.# 12/22 ingredients of the offence under Section 201 of IPC were made out, by holding that ,
(a) an offence was committed;
(b) that the accused knew or had reason to believe that an offence had been committed;
(c) that the accused intended to screen the offender, whether that offender be himself or another person and
(d) that the accused had disposed of or concealed the dead body with such intention. Accordingly, for the reasons discussed above, the Trial Court convicted the appellant under Section 302/201/34 of IPC.
30. From the above, it is clear that the conviction of the appellant was based on the circumstantial evidences of which the following were the chain of evidences,
(i) The deceased was seen last with the accused/appellant;
(ii) That the appellant had absconded and subsequently surrendered;
(iii) According to the Trial Court, case of suicide was totally ruled out in view of the evidences that the limbs of the deceased were tied from behind and of course, and there is clear evidence of PW4 to the effect that her father was forcibly taken away on the pretext of treating the sick son of the appellant which was found to be untrue.
31. The law relating to conviction by way of circumstantial evidences has been succinctly put by the Hon'ble Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116.
Page No.# 13/22 In this regard, we may refer to para 153 of Sharad Birdhichand Sarda (supra) wherein the Hon'ble Supreme Court summarized the law, 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 Maharashtra [(1973)2 SCC 793] 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."
32. Thus, what is important to be noted is that in convicting any accused on the basis of circumstantial evidences, each of the circumstances must be proved beyond reasonable doubt and these must be clearly linked. There must not be any gap amongst these chain of evidences and the cumulative effect of circumstances should be consistent on the hypothesis of the guilt of the accused only and they should exclude every possible hypothesis except the Page No.# 14/22 one to be proved that he is guilty and of course, all these circumstances taken together must point to the probability that the act must have been only done by the accused as mentioned above.
33. The Trial Court also relied heavily on the last seen theory. In fact, in our view, the last seen theory is the lynchpin of the prosecution case as well as the basis of the conviction of the appellant.
34. In view of above, we will briefly consider the last seen theory which was applied in the present case.
35. That the deceased was taken away from his house by the appellant and the other co- accused appears to have been established without any doubt by the evidences of PW2 and PW4. However, in what circumstances, he was taken away and for what purposes he was taken away does not appear to be fully established though the case of the prosecution as also finding of the Trial Court is that the deceased was forcibly taken away purportedly to treat the ailing son of the appellant.
Though this has been stated so by PW4, it is to be noted that the aforesaid fact has come under some cloud inasmuch as PW4 had stated in her cross-examination that the fact that after the deceased was forcibly taken away from their home, that she tried to follow, also the fact that she had gone along with other relatives to the house of the appellant to ascertain whether the appellant's son was really sick or not, and also the fact that the appellant and the deceased were not found in the house of the appellant had not stated before the police while recording her statement under Section 161 Cr.P.C.
36. In this regard, Ms. R.D. Mazumdar, learned Amicus Curiae has submitted that this Page No.# 15/22 evidence to the fact that the deceased was forcibly taken away for treatment of the appellant's son which turned to be false cannot be said to have been properly established inasmuch as this appears to be improvement and embellishment as it would have, otherwise, found placed in the original statement recorded under Section 161 Cr.P.C.
37. As regards the claim of the prosecution that the deceased was taken away for treatment of the ailing son of the appellant, it has been submitted that this evidence stated before the Court was not stated by the witness while making statement under Section 161 Cr.P.C. It has been submitted that the omission of this crucial fact in the statement recorded under Section 161 Cr.P.C. amounts to contradiction as provided under Explanation (2) to Section 161 Cr.P.C. and as such, cannot be relied upon.
38. It has been submitted that apart from the fact that the deceased was taken away by the appellant and other co-accused Hanu Kerketa on the fateful night, nothing further can be read into the aforesaid incident.
39. Apart from the aforesaid evidence of the deceased being taken away by the appellant, the other incriminating evidence against the appellant is his abscondanc. In this regard, it has been submitted that mere abscondance of an accused cannot be basis of drawing any adverse inference against him as it does not lead to a firm conclusion of his guilty mind as even an innocent man may abscond in order to evade arrest and such an action may be part of natural conduct of an accused.
In order to substantiate this submission, Learned Amicus Curiae has relied on the decision of this Court in Criminal Appeal No.108(J) of 2013 [Shyamal Das Vs. State of Assam, disposed of on 03.02.2017] relying on the decision of Hon'ble Supreme Court in Page No.# 16/22 Paramjeet Singh @ Pamma Vs. State of Uttarakhand, [AIR 2011 SC 200] Relevant portions of aforesaid case in Shyamal Das (supra) reads as follows, "11. The next circumstance against the appellant is that he absconded after the date of occurrence. The record reveals that appellant did abscond and he surrendered after 8 months. It is however well settled that mere abscondance of an accused does not lead to a firm conclusion of his guilty mind, as even an innocent man may abscond in order to evade arrest and such an action may be part of the natural conduct of the accused. (See AIR 2011 SC 200). Thus, the possibility of being falsely framed in connection with the murder of Sunarton compelled the appellant to abscond cannot be ruled out and for this reason alone, he cannot be held guilty.
12. Lastly, it is true that appellant did not offer any explanation of being 'last seen together' with Sunarton. But again the Supreme Court in Kanhaiya Lal vs. State of Rajasthan, (2014) SCC 715 has held that mere non-explanation of being last seen together with deceased person on the part of accused, by itself cannot lead to proof of guilt against him.
13. From the above discussion, it is clear that the circumstance of 'last seen together' with deceased Sunarton is the singular piece of circumstantial evidence available against the appellant. And, in the case of Kanhaiya Lal (supra), the Supreme Court has held that the circumstance of 'last seen together' does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Therefore, merely because the appellant was last seen with Sunarton and he did not offer any explanation of having been last seen, in our considered opinion, cannot lead to proof of guilt against him. This fact assumes more importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the appellant and Sunarton for a long time. Also there is no evidence to show that the appellant was seen with Sunarton at or near the place where his body was found.
14. For these reasons, we are unable to sustain the judgment and sentence. The appeal is allowed and the conviction and sentence imposed on the appellant are set aside. He is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith, unless otherwise required."
40. In para No. 34 of Paramjeet Singh @ Pamma (supra), the Hon'ble Supreme Court observed that abscondance by a person against whom FIR has been lodged does not necessarily lead to the inference that the person is guilty and absconding by itself is not conclusive proof of either of guilt or of a guilty conscience.
Para No.34 of aforesaid Paramjeet Singh @ Pamma (supra) reads as follows, Page No.# 17/22 "34. Asbcondance by a person against whom FIR has been lodged, cannot be said to be unnatural. Thus, mere abscondance by the appellant after commission of the crime and remaining untraceable for a period of six days itself cannot establish his guilt. Absconding by itself is not conclusive proof of either of guilt or of a guilty conscience."
41. As regards the observation by the Trial Court that since the limbs of the deceased were tied, suicide is ruled out, in our view it is not relevant inasmuch as even if there is clear inference that it was homicidal, yet, that itself does not prove any link with the appellant which is required to be established in case of conviction based on circumstantial evidences.
42. We have also noted that there appears to be certain ambiguity about the time when the deceased met his death. PW1, the Doctor who had conducted the post mortem examination himself stated that the death could have occurred between 3-6 days of the conduct of the post mortem. Therefore, it is not a case that the death ensued soon after the deceased was taken away and last seen together with the appellant and the other accused. Thus, from the above, what we have noted is that apart from the fact that the deceased was seen last together with the appellant and another accused, having been taken away from his residence at the night of 06.02.2007, apparently no other convincing material evidences appear which form and complete the chain of the circumstantial evidences to categorically and unambiguously indicate that in all probability the act must have been done by the appellant and the other co-accused and none else.
43. Under the circumstances, we are unable to agree with the reasons and conclusions arrived at by the Trial Court in holding that the prosecution has been able to establish the circumstantial evidences beyond reasonable doubt.
44. Accordingly, we allow this appeal by setting aside the conviction of the appellant and Page No.# 18/22 set aside the impugned judgment dated 01.10.2016 passed by the learned Sessions Judge, Golaghat in Sessions Case No.73/2010.
In the result, the appellant is acquitted from the charges of conviction under Section 302 of IPC.
45. We have held that the charge against the appellant under Section 302 of IPC has not been proved beyond reasonable doubt and as a natural consequence, the question of convicting the appellant under Section 201 of IPC does not arise inasmuch since the appellant has not been found to be responsible for the death, the question of concealing of evidences by the appellant does not arise. Thus, the conviction under Section 201 IPC is also set aside.
46. Under the circumstances, we direct that the appellant be released from custody forthwith.
47. While disposing this appeal, what we have noted is that the Trial Court has not passed any order regarding grant of compensation to the victim or his dependents/kith and kin as contemplated under Section 357A of the Cr.P.C. whereunder the victims or his/her dependents who have suffered loss of life or injury are entitled to be provided with certain compensation. Sub-Section 2 of Section 357A provides that where Court recommends for payment of compensation, the District Legal Services Authority or the State Legal Services Authority shall decide the quantum of compensation to be awarded under the Scheme prepared by the State Governments under sub-Section 1 of Section 357A.
48. In this regard, it has been submitted at the Bar that the Government of Assam has already prepared a scheme known as the Assam Victim Compensation Scheme, 2012 in exercise of powers conferred by Section 357-A of the Code of Criminal Procedure, 1973 in co-
Page No.# 19/22 ordination with the Central Government which was notified on 18.10.2012.
Para 5 of the aforesaid Scheme, 2012 provides as follows, "5. Procedure for Grant of Compensation -
1. Whenever a recommendation is made by the Court or an application is made by any victim or his dependents under sub-section (2) of Section 357-A of the Act, to the State Legal Services Authority or the District Legal Services Authority, as the case may be, the said Authorities respectively shall examine the case and verify the contents of the claim with regard to the loss or injury caused to victim and arising out of the reported criminal activity and may call for any other relevant information necessary in order to determine genuineness. After verifying the claim, the District Legal Service Authority or the State Legal Services Authority, as the case may be, shall, after due Inquiry, award compensation within two months, in accordance with provisions of this Scheme.
2. Compensation under this Scheme shall be paid subject to the condition that if the trial court while passing judgment at later date, orders the accused person to pay any amount by way of compensation under sub-section (1)(b) of Section 357 of the Act, the victim/dependents shall remit an amount of compensation, or the amount ordered equal to the amount of compensation or the amount ordered to be paid under sub-section (3) of Section 357 of the Act, whichever is less. An undertaking to this effect shall be given by the victim/dependents before the disbursal of the compensation amount.
3. The District Legal Services Authority shall decide the quantum of compensation to be awarded to the victim or these dependents on the basis of loss caused to the victim, medical expenses to be incurred on treatment, minimum sustenance amount required for rehabilitation including such incidental charges as funeral expenses etc. The Compensation may vary from case to case depending on facts and circumstances of each case.
4. According to the Schedule of this Scheme, the quantum of compensation to be awarded under the Scheme shall be disbursed to the victim or his dependents, as the case may be, from the Fund.
5. Compensation received by the victim from the Central Government, State Government, Insurance Company or any other institution in relation to the crime in question namely, insurance, ex-gratia and/or payment received under any other Act or State-run-scheme, shall Page No.# 20/22 be considered as part of the compensation amount under this scheme and if the eligible compensation amount exceeds the payments received by the victim from collateral sources mentioned above, the balance shall be paid out of the Fund.
6. In fixing the quantum of compensation, regard must be had to the minimum wages and schedule to motor vehicle act, 1998.
7. The State or the District Legal Services Authority, to alleviate the suffering of the victim, may order for immediate first aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the police station or Magistrate of the area concerned or any other interim relief as it may deem fit.
8. The compensation to the victim under this scheme shall not exceed the maximum amount prescribed in the Schedule.
9. State Government may review the maximum limit of compensation indicated in the Schedule by issuing official notification from time to time." As far as the quantum of amount to be paid, the maximum limit of compensation has been fixed as Rs.2,00,000/- (Rupees two lakh) only in respect of death as provided under the Schedule of the said Scheme.
The quantum of compensation to be paid under the aforesaid Scheme has been revised from time to time.
As per the last Notification issued, i.e. 01.02.2019, in respect of death the minimum amount has been fixed as Rs.5,00,000/- (Rupees five lakh) only and the same amount of Rs.5,00,000/- (Rupees five lakh) only as the maximum amount also.
Thus, as per the aforesaid Notification, dated 01.02.2019, in respect of death, a sum of Rs.5,00,000/- (Rupees five lakh) only would be payable to the legal heir(s) of the victim.
Para 2(f) of the Assam Victim Compensation Scheme, 2012 defines "victim" as a Page No.# 21/22 person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal hair.
49. We are of view that in terms of the aforesaid Notification dated 01.02.2019 issued by the Government of Assam under the Assam Victim Compensation Scheme, 2012, legal heirs of the deceased would be entitled to Rs.5,00,000/- (Rupees five lakh) only.
50. Accordingly, we direct the Golaghat District Legal Services Authority to conduct an inquiry to ascertain the legal heirs of the deceased so that the legal heirs of the deceased Chandrasai Garh can be granted the aforesaid compensation of Rs.5,00,000/- (Rupees five lakh) only for which the State Government would release the necessary fund for payment to the legal heirs of the victim in which regard the Golaghat District Legal Services Authority will render all necessary assistance.
51. Since the incident had occurred in the year 2007, the aforesaid victim compensation amount of Rs.5,00,000/- (Rupees five lakhs) fixed by the State in terms of the aforesaid notification dated 01.02.2019 shall be paid to the legal heirs of the victim after making necessary verification as directed above at the earliest, preferably within a period of 3(three) months from the date of receipt of a certified copy of this order.
52. A copy of this order be furnished to the Member Secretary, Assam State Legal Services Authority as well as the Secretary, Golaghat District Legal Services Authority for doing the needful.
53. LCR be remitted immediately to the concerned Court.
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54. We have noted the able assistance rendered to this Court by Ms. R.D. Mazumdar, learned Amicus Curiae in conducting this jail appeal who may be given the honorarium at the rate fixed under the Rules.
JUDGE JUDGE Comparing Assistant