Gauhati High Court
Page No.# 1/23 vs Rajen Doley on 18 September, 2025
Page No.# 1/23
GAHC010073542020
2025:GAU-AS:12853
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Death Sentence Ref./1/2020
THE STATE OF ASSAM
REP. BY THE P.P., ASSAM.
VERSUS
RAJEN DOLEY
JORHAT, ASSAM.
Advocate for the Petitioner : PP, ASSAM,
Advocate for the Respondent : MR. A K DAS(AMICUS CURIAE),
Linked Case : Crl.A./153/2020
SRI ANIL DOLEY AND 9 ORS
S/O SHRI TARA DOLEY
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
MAJULI
DIST. JORHAT
ASSAM.
2: ATUL DOLEY
S/O SHRI KALU DOLEY
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
Page No.# 2/23
MAJULI
DIST. JORHAT
ASSAM.
3: BISWA PATIR
S/O SHRI SARU PATIR
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
MAJULI
DIST. JORHAT
ASSAM.
4: BAKU DOELY
S/O SHRI BABULAL DOLEY
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
MAJULI
DIST. JORHAT
ASSAM.
5: BIMAL PATIR @ BIRINCHI
S/O SHRI INDRESWAR PATIR
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
MAJULI
DIST. JORHAT
ASSAM.
6: BAMUN DOLEY
S/O SHRI NANDIRAM DOLEY
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
MAJULI
DIST. JORHAT
ASSAM.
7: RAJU DOLEY
S/O SHRI PHULESWAR DOLEY
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
MAJULI
DIST. JORHAT
ASSAM.
8: LAKHINDRA PATIR @ LOTIKAI
S/O SHRI DILIP PATIR
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
Page No.# 3/23
MAJULI
DIST. JORHAT
ASSAM.
9: JAN DOLEY
S/O SHRI JAMUNA DOLEY
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
MAJULI
DIST. JORHAT
ASSAM.
10: JANMA DOLEY
S/O LATE TEREM DOLEY
R/O BORDUA LUHIT CHAPARI
P.S. GARMUR
MAJULI
DIST. JORHAT
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY PP
ASSAM.
2:SANTAUN DOLEY
S/O LATE RAJKUMAR DOLEY
R/O VILL. KUMARBARI GAON
JANGRAIMUKH
P.S. JANGRAIMUKH
MAJULI
DIST. JORHAT
ASSAM
PIN 785105
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Advocate for : MR J PAYENG Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR Linked Case : Crl.A./152/2020 RAJEN DOLEY S/O SHRI BABU DOLEY R/O BORDUA LUHIT CHAPARI P.S. GARMUR MAJULI Page No.# 4/23 DIST. JORHAT ASSAM.
VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP ASSAM.
2:SANTAUN DOLEY S/O LATE RAJKUMAR DOLEY R/O VILL. KUMARBARI GAON JANGRAIMUKH P.S. JANGRAIMUKH MAJULI DIST. JORHAT ASSAM PIN 785105
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Advocate for : MR J PAYENG Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR BEFORE HONOURABLE THE CHIEF JUSTICE ASHUTOSH KUMAR HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY JUDGMENT & ORDER (CAV) Date : 18-09-2025 A.D.Choudhury, J
1. The Death Sentence Reference No. 1/2020 and Criminal Appeal No. 152/2020 & Criminal Appeal No. 153/2020 have been heard together and are being disposed of by this common judgment & order.
2. By the impugned judgment dated 12.03.2020 passed by the learned Additional Sessions Judge, Jorhat in Sessions Case No. 41/2013, corresponding to G.R. Case No. 125/2012 registered under Sections 302/143/201/364 of IPC, the appellants were convicted under Sections 302/143/201/364 of IPC and in Crl.A. No. 152/2020, the appellant, Shri Rajen Doley was Page No.# 5/23 sentenced to death for committing the offence under Section 302 of IPC and to pay a fine of Rs. 10,000/- (Rupees ten thousand) and in default of payment of fine, to undergo simple imprisonment for a period of one month and in Crl.A. No.153/2020, the appellants, namely, (i) Shri Atul Doley
(ii) Shri Biswa Patir (iii) Shri Baku Doley (iv) Shri Bimal Patir@ Birinchi (v) Shri Bamun Doley
(vi) Shri Raju Doley (vii) Shri Lakhindra Patir Lotikai (viii) Shri Jan Doley (ix) Shri Janma Doley and (x) Shri Anil Doley, were sentenced to imprisonment for life under Section 302 IPC and to pay fine of Rs. 10,000/- (Rupees Ten thousand) each and in default of payment of fine, to undergo simple imprisonment for a period of one month. The remaining two accused, who faced trial, Shri Pulin Doley died during the trial, and Shri Limai @ Nimai Doley, though convicted under Section 302 IPC and sentenced to imprisonment for life, has not preferred any appeal. The accused persons were also convicted for the commission of an offence under Section 364 IPC and were sentenced to undergo Rigorous Imprisonment for 10 (ten) years and fine of Rs. 5,000/- each, and in default to undergo simple imprisonment for one month. The accused were also convicted for committing an offence under Section 201 of IPC and were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- (Rupees five thousand) only each. In default of payment of the fine, to undergo simple imprisonment for one month. For committing the offence under Section 143 of IPC, the accused were sentenced to undergo imprisonment for six months and to pay a fine of Rs. 1,000/- (Rupees one thousand) only each. In default of payment of the fine, to undergo simple imprisonment for one month. The sentences were to run concurrently.
3. The prosecution's case in a nutshell is that on 29.08.2012, one Shri Ranjit Patir (PW-5) and Shri Brojen Misong (PW-6), gave information before the Officer-in-Charge, Garmur Police Station, Majuli, that some villagers of Luhit Chapori Village forcefully took Shri Rajkumar Doley, Shri Bornali Doley and their son Shri Jitu Doley to an unknown place and killed them for practising witchcraft. Upon receipt of the said information, GD Entry No. 464/2012 dated 29.08.2012 was made, and the incident was brought to the notice of the Superintendent of Police, Jorhat.
4. Accordingly, the investigation was initiated by the concerned Investigating Officer, who visited the house of the missing victims. He then proceeded to Borghuli Kankur Ghat, where the victim, Rajkumar Doley, was known to go for fishing. The Investigating Officer seized one SIM Card, one Nokia battery, and one Keypad of a Mobile phone in broken condition at the Ghat Page No.# 6/23 situated between the villages of Borguli and Borduwa, in the presence of seizure witnesses Shri Prodip Pegu (PW-1) and Shri Kamal Ch. Tayung (PW-2) and Shri Nilamoni Pegu (PW-3). Thereafter, the Investigating Officer prepared a rough Sketch Map of the area and recorded the statements of the witnesses. The dead bodies of the deceased persons were searched in the river, but the same could not be traced.
5. On the same date, i.e., on 29.08.2012, Shri Santanu Doley (PW-13), son of the victims, Shri Rajkumar Doley & Smt. Bornali Doley, lodged an Ejahar before the Officer-in-Charge of Garmur Police Station, Majuli, alleging that his father and mother and his younger brother, Sri Jitu Doley, have been missing since 10:00 pm of 28.08.2012 and he came to know from a reliable source that on 28.08.2012, at about 10:00 pm, the accused persons Babulal Doley, Anil Doley, Monbang Doley, Nimai Doley, Janma Doley, Rajen Doley, Binuwa Doley and other 10-15 villagers of Luhit Chapori village, Bordawa, in a planned manner, abducted the victims from their house suspecting them to be practicing witchcraft and killed them on the bank of Luhit river and threw them into the river.
6. Based on the aforesaid Ejahar, Garmur P.S. Case No. 38/2012 under Sections 302/201/143 of IPC was registered, and the investigation was started. On completion of the Investigation, finding prima facie involvement of the accused persons in the commission of offences, the Investigating Officer filed a charge-sheet vide C.S. No.35/2012 dated 31.12.2012 against the accused persons under Sections 109/302/201/143 of IPC to stand trial in the Court. However, not all the FIR-named accused persons were sent for trial.
7. Thereafter, the learned Sub-divisional Judicial Magistrate (M), Majuli committed the case to the Court of the learned Sessions Judge, Jorhat for trial. After receiving the case record from the committal Court, the case was registered as Sessions Case No.41/2013.
8. Thereafter, the learned Sessions Judge, Jorhat, framed formal charges against the accused persons under Sections 364/302/201/143/149 of IPC. Particulars of the accusation of the above charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. Thereafter, the case was transferred to the learned Additional Sessions Judge, Jorhat, for disposal, and the trial commenced.
Page No.# 7/23
9. The prosecution's case is based on circumstantial evidence. To bring home the charges against the accused persons, the prosecution side examined as many as 18 (eighteen) witnesses. After completion of the prosecution evidence, the accused were examined under Section 313 Cr.PC confronting them with all the incriminating circumstances so that the accused could explain the same. The accused declined to adduce any defence evidence in support of their defences.
10. Upon conclusion of the trial and on appreciation of the materials available on record, the learned trial Court opined that the prosecution had succeeded in establishing the charges brought against the accused persons beyond all reasonable doubt and accordingly, convicted them in the manner as recorded hereinabove.
11. Heard Mr. J. Payeng, learned Advocate for the appellants in Criminal Appeal No. 152/2020 and Criminal Appeal No. 153/2020, and Ms. B. Bhuyan, learned Senior Advocate/Additional Public Prosecutor, Assam, assisted by Ms. R. Das, learned Advocate for the appellant in Death Sentence Reference No.1/2020. Also heard Mr. A. K. Das, learned Senior Advocate/Amicus Curiae, assisted by Ms. K. V. Thanyu, learned Advocate for the respondent in Death Sentence Reference No. 1/2020 and Ms. B. Bhuyan, learned Senior Advocate/Additional Public Prosecutor, Assam assisted by Ms. R. Das, learned Advocate for the respondents in Criminal Appeal No. 152/2020 and Criminal Appeal No. 153/2020.
12. Assailing the impugned judgment and order dated 12.03.2020 passed by the learned Trial Court, Mr. Payeng, learned counsel for the appellants, has argued that, save and except the alleged disclosure statement and extrajudicial confession, there is not even an iota of evidence against the accused appellants to prove the charges. The learned counsel has also argued that even the disclosure statement leading to the alleged discovery of the weapons used in the commission of the offence is inadmissible in the absence of any disclosure statement of the accused persons.
13. Mr. Payeng, learned counsel further contends that the conviction is based on the alleged extrajudicial confession; however, admittedly, such confessional statements were made during police custody and therefore, not admissible in terms of Section 25 and Section 26 of the Evidence Act. It is further contended by Mr. Payeng, learned counsel that the circumstances, based on which the learned Trial Court convicted the accused, do not even raise any suspicion or hypothesis of guilt of the accused. There is no chain of evidence that points guilt only towards the accused;
Page No.# 8/23 rather, according to him, this is a case of no evidence.
14. Par contra, Ms. Bhuyan, learned Senior counsel contends that the prosecution has been able to prove beyond all reasonable doubt, the chain of conclusive circumstances, which only points that it is the accused and none other, who committed the offence and therefore, the learned Trial Court was correct in convicting the accused persons and sentencing them.
15. We have considered the arguments advanced at the Bar by the learned counsels for the contesting parties and also the learned Amicus Curiae in the Death Sentence Reference. We have also carefully gone through the evidence available on record. Since the basic arguments of the appellants' counsels are to the effect that the evidence adduced by the prosecution side is wholly insufficient to establish the charges brought against the accused beyond a reasonable doubt, we propose to briefly analyse the evidence brought on record.
16. As noted hereinabove, the First Information of the incident was received by the Police on being reported by PW-5 and PW-6, and subsequently, the formal information was lodged by PW- 13, Santanu Doley, i.e., son of Rajkumar Doley & Barnali Doley, and brother of Jitu Doley. The prosecution projected PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7 & PW-8, who are the villagers, assisted the police during the search for the missing victims and are also seizure witnesses. PW-9 is projected to have witnessed the discovery of the weapons of crime being led by the accused.PW-10, PW-11, PW-12, PW-15 & PW-17 are projected by the prosecution as the witnesses before whom the accused confessed their guilt. PW-13 is the informant, and PW-14 & PW-16 were declared hostile as they did not support the prosecution case. PW-18 is the Investigating Officer.
17. PW-1 deposed that on the subsequent day of the incident, police from Garmur Police Station came to their village in search of the victims, and the police informed him that the victims were missing. This witness accompanied police to the village where the crime was committed; however, only female residents of the village were present at the relevant point of time and during the search for the missing victims, police found one Nokia Battery, one Mobile Keypad near the river bank between the villages Borghuli and Bordawa. He witnessed the seizure of the aforesaid materials. He proved the seizure list as Exhibit-1, his signature in the seizure list as Exhibit 1(i), SIM card as Material Exhibit-1, Nokia Battery as Material Exhibit-2 and Mobile Keypad as Page No.# 9/23 Material Exhibit-3. Similar are the statements of PW-2, PW-3 & PW-4. The defence did not cross- examine these witnesses.
18. PW-5, PW-6, PW-7 & PW-8 also accompanied the police during the search for the missing persons, and they accompanied the police to the residence of the disappeared persons. However, they found nobody in the residence of the missing persons. According to these witnesses, they witnessed the seizure of one piece of paper written by victim Barnali Doley, one exercise book, and one xerox copy of an agreement between Hemanta Doley and Kandarpa Hazarika. These witnesses proved their signatures in the seizure list and the piece of paper written by Barnali Doley (Material Exhibit-4), Exercise Book (Material Exhibit-5) and the Agreement (Material Exhibit-6). They also proved their respective signatures on the seizure list. The defence did not cross-examine these witnesses.
19. PW-9 is the nephew of victims Rajkumar Doley and Barnali Doley. According to this witness, on 28.08.2012, the Officer-in-Charge of Garmur Police Station gave him the information that the victims were missing. After having such information, he went to the house of the victims along with the police and found the door of the house open and the victims were missing. Thereafter, he, along with the police, went to the fishery belonging to the victim Rajkumar Doley and noticed blood stains near the fishery and found one SIM card lying there. According to him, PW-10 also accompanied him to the said place. This witness further deposed that the police informed that the accused persons killed Rajkumar Doley, Bornali Doley and their son. After two days of the incident, this witness was called by the police, and accordingly, he went to the Police Station, and the police asked him to enquire from the accused persons as regards the place where they kept the dead bodies. He further deposed that on being asked, the accused Limai Doley and Anil Doley told him that all of them, cut Rajkumar Doley, Bornali Doley and their son into pieces and threw the same in the river Subansiri. According to this witness, thereafter, the said two accused were taken to the fishery and after reaching the fishery, accused Limai Doley produced one Kopi Dao from near the fishery, in his presence, which was kept by the accused and the said accused also confessed before the police that he, along with accused Anil Doley and Atul Doley, cut Rajkumar Doley, Bornali Doley and their son into pieces and threw their dead bodies into the river. This witness witnessed the seizure of the dao and proved Exhibit-3 as the seizure list and his signature in the seizure list as Exhibit-3(1). He also proved Material Exhibit-7 (Kopi Dao).
Page No.# 10/23 According to this witness, accused Limai also produced another dao from near the fishery, which was seized by the police. He also proved Exhibit-4 as the seizure list and his signature as Exhibit 4(1) and the Dao as Material Exhibit-8. He had also affirmed seeing the Material Exhibit-8 in the Court. He proved his statement recorded under Section 164 Cr.P.C. as Exhibit-5 and his signature therein as Exhibit-5(1).
During cross-examination, this witness testified that the confession made by the accused persons before him was at the place of occurrence. When the police called him to the Police Station, the accused persons were in the police lockup, and the police asked him to make a query to the accused persons in the Mising language. He also deposed that both the daos, which were produced by two accused persons to the police, were lying in the open near the fishery.
20. PW-10 is a co-villager of the accused Limai Doley and Rajen Doley. He found the accused persons inside the lockup. This witness was also asked by the police to talk to the accused persons and to enquire who killed the missing persons. On being asked, accused Limai told him that all the accused persons had killed the victims, and he concealed the dao. Thereafter, the accused person was taken to the place of occurrence, i.e., the Subansiri river, where a dao was found lying nearby. He re-affirmed during cross-examination that when the police took the accused to the place of occurrence, i.e. near the Subansiri River, he and PW-9 accompanied the police. The dao found near the Subansiri River was seized in their presence. He proved the seizure list as Exhibit-4, his signature as Exhibit-4(1) and the Dao as Material Exhibit-7.
21. PW-11 is the brother of the victim, Bornali Doley. According to this witness, he was informed by police that the victims had been killed and after receiving such information, he went to Garmur Police Station along with PW-9, PW-12 and one Ananda Pegu and thereafter, police personnel from Garmur Police Station went to the residence of the victims, and they accompanied the police. The house of the victims was found open, all the household articles were lying scattered inside the house, locks of the almirahs were open and thereafter, all of them including the police went to the fishery belonging to Rajkumar Doley, which is situated in the backside of the house and they found some blood stains and one SIM Card lying near the fishery. After one week, the witness was called by the police to the Police Station, where he found the accused persons inside the lockup. On being asked by the police to enquire about the incident in Mising language to the Page No.# 11/23 accused, he asked the accused persons how they killed the victims. Accused Limai and four others standing in the dock told him that they killed Bornali, Rajkumar and their son into pieces and threw them into the Subansiri River. Thereafter, police took the accused Limai and one more accused to the Subansiri River. Police was also accompanied by this witness. The accused confessed their guilt to the police, who then found a Mesi dao (Machete) near the Subansiri River. Thereafter, another accused person, whom this witness could not identify in the dock, produced one Kopi dao from his house, which is situated 150 meters from the home of the victim Rajkumar Doley. He further deposed that both the accused persons told police that all the accused persons killed the aforesaid persons with the said Mesi dao and Kopi dao.
During cross-examination, he admitted that when he made the query to the accused persons in their language (Mising Language), at that time, they were in the police lockup and the police were also present there. He affirmed that the dao was seized near the Subansiri river, i.e. Lohit Chapori.
22. PW-12 is another villager who got information from the police about the incident, and accordingly, he went to Garmur Police Station along with PW-9 and PW-11. His evidence was also similar to that of PW-10, that while entering the house of the victim, they found all the articles scattered inside the house. They went to the fishery of Rajkumar Doley, and near the fishery, they noticed some blood stains and one SIM Card lying near the fishery. This witness went to the Police Station along with PW-9 & PW-11 after 8-10 days, i.e. after the arrest of the accused persons. This witness also found the accused persons inside the lockup and, on being asked by the police, they questioned the involvement of the victim in the commission of the offence. Though the accused were initially not willing to answer anything, on being repeatedly asked, the accused Nimai @ Limai and Rajen told them that all the accused persons had killed Raj Kumar Doley, Bornali Doley and their son into pieces and thrown them in the Subansiri River, as they suspected them to be witches. He proved his statement recorded before the Magistrate as Exhibit-7.
During cross-examination, he admitted that when he questioned the accused persons, they were inside the police lockup, where about 10-12 persons, and the police were present.
23. PW-13 is the son of victims Raj kumar Doley & Barnali Doley, and he was the informant. He got the information about the incident from his maternal uncle (PW-11), and on the same day, he, along with PW-11, went to their residence, found the door open, and all the victims were Page No.# 12/23 missing. He discovered that the almirahs were open and all the materials were scattered. According to him, the accused persons killed his family members out of jealousy by falsely alleging them to be witches. The reason for jealousy was that his mother/victim, Bornali Doley, was appointed in an Anganwadi Centre and the accused, namely, Babulal Doley, Rajen Doley, Anil Doley, Janma Doley, Baku Doley, Jan Doley, Atul Doley, Nimai Doley, Pulin Doley, Lakhindra Patir @ Litikai instigated the villagers that his mother was a witch. He proved the FIR and his signature as Exhibits-8 & 8(1), respectively. He also stated that the material listed in Exhibit-4 was seized in his presence, and also the Material Exhibits-5 and 6. He denied all the defence suggestions in this case.
24. PW-14 was projected as a witness who was aware that the accused Nimai, Baku, Biswa, Bamun and Jan were involved in the killing of the victims. However, this witness did not support the prosecution case, and accordingly, he was declared hostile; however, he denied the prosecution suggestion as regards his statement recorded by the police. During cross-examination by the defence, he deposed that he does not know the victims; however, he learnt that somebody killed those persons, but he does not know who killed them.
25. PW-15 is another witness, who went to the Police Station and was asked by the police to translate the statements made by the accused in their language. According to him, he found the accused persons in lockup, where the Officer-in-Charge was asking questions. They were answering in Mising language, and this witness translated the answers of the persons kept inside the lockup to Assamese language.
This witness was also declared hostile, and the prosecution cross-examined this witness. He denied the suggestion of the prosecution that the accused persons told him in Mising language that they cut Bornali Doley, Rajkumar Doley and their son into pieces and threw them into the Luhit river, suspecting them to be witches.
During cross-examination by the defence, he deposed that he could not identify the persons whom he saw inside the police lockup.
26. PW-16 deposed that he was brought to the Police Station in connection with the case of witch hunting, and the police asked whether he could identify the accused; however, he could not Page No.# 13/23 identify any of the accused persons. This witness was also declared hostile.
27. He denied the prosecution suggestion that after getting the information about the incident on television news, he went to the Police Station to see the persons, and he saw the police interrogating Nimai Doley, Pulin Doley, Atul Doley, Jan Doley, Baku Doley, Dinesh Doley, Monesh Doley, Bamun Doley, Ghana Kanta Doley and Raju Doley.
During cross-examination by the defence, he deposed that he got the information about the incident from the newspaper and television, and his residence is about 26/27 KM away from the place of occurrence.
28. PW-17 is an Executive Magistrate who accompanied the police to Luhit Chapori, and the police officer prepared a Sketch Map in his presence. He proved the Sketch Map as Exhibit-9 and his signature as Exhibit-9(1). According to him, the accused Biswa Patir stated that the place mentioned in the Sketch Map is the place where the accused Biswa, along with other accused persons, threw away the dead bodies of the persons whom they killed.
During cross-examination by the defence, he stated that he was not accompanied by any villagers when the Sketch Map was drawn, and when the Sketch Map was drawn, some villagers were present at a distance. He also deposed that he could not remember the place from where the accused Biswa Patir was taken along with the Police to the place of occurrence.
29. PW-18 is the Investigating Officer, who deposed that on 29.08.2012, he received verbal information from PW-5 & PW-6 that some villagers, by apprehending the victims to be witches, took them to an unknown place and killed them. He exhibited the extract copy of GD Entry No. 464/2012 dated 29.08.2012, along with his signature on the extract copy. According to him, though he and the police personnel went to the house of the victim, Rajkumar Doley, no search could be made as it was late at night. After learning from the villagers that the victim, Rajkumar Doley, used to go to Borghuli Kankur Ghat to catch fish, the witness went to that place. He discovered blood stains and the material exhibits, which he seized in the presence of PW-1, PW-2 & PW-3. He then exhibited the seizure list and the Sketch map that he prepared at the scene as Exhibit-11. According to him, from the statements of the witnesses, he could learn that the victims were killed by the accused by taking them near the Luhit River bank, and he also came to know Page No.# 14/23 that after killing the victims, the dead bodies were cut into pieces and thrown into the Luhit River. Though the dead bodies were searched, they could not found the same. He also testified to the factum of PW-13 lodging the FIR. According to him, on 30.09.2012, he again visited the house of the victims and seized the Material Exhibits-4, 5 & 6. He exhibited the Sketch Map prepared in the house of the victims as Exhibit-11.
On 30.08.2012, he arrested accused Kambor Patir, Supply Patir and Barisha Patir from near the house of the deceased persons and accused Nimai, Pulin, Atul, Janma, Baku, Dinesh, Bamun, and Raju were arrested at the Police Station as the villagers brought the accused persons to the Police Station.
According to this witness, on 06.09.2012, the accused Atul took them to Luhit Chapori and confessed that he, along with other accused, threw the dead bodies of the deceased persons after cutting them into pieces. He further deposed that based on the information received from accused Atul and Nimai that the said accused had hidden the daos used in the crime and he, along with such accused, went to their residences on 06.09.2012 and recovered one dao from the house of accused Nimai Doley in the presence of PW-9, PW-10 & PW-11. Another dao was recovered and seized from the house of the accused, Atul.
This witness further testified that on 04.11.2012, accused Biswa brought him (Investigating Officer) along with PW-17 (Executive Magistrate), to the bank of the river Luhit and confessed that they had cut the deceased persons into pieces and thrown them into the Luhit River. Accordingly, a Sketch Map was prepared as shown by the accused Biswa, and the accused Biswa put his signature on the Sketch Map.
He further deposed that PW-14, PW-15, and PW-16 stated before him that the accused had confessed their guilt, and he exhibited the statements of such witnesses recorded under Section 161 CrPC as Exhibit-14, Exhibit-15 & Exhibit-16 respectively. During cross-examination, he stated that when he searched on 30.09.2012, he did not find any dao in Luhit Chapori village. He further deposed that after about one week of the incident, accused Atul and Nimai led the discovery of the daos. He also admitted that the dao was recovered in the presence of PWs-9 to 11. During cross- examination, he deposed that he had not seized any dao from the bank of the river Luhit. He denied the suggestion that the house of the victims was not searched and that nothing was seized.
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30. In the backdrop of the aforesaid evidence led by the prosecution, this Court is called upon to examine whether the prosecution has succeeded in establishing the charges brought against the accused persons beyond a reasonable doubt.
31. It is clear from the prosecution's case, as presented through their witnesses, that their case is based on circumstantial evidence. It is by now well settled that circumstantial evidences are evidences not based on direct eye-witness accounts, but based on evidence from which the guilt of an accused can be inferred. It consists of a chain of facts and events that, when linked together, point conclusively to the guilt of the accused. Unlike direct evidence, circumstantial evidence requires the Court to draw inferences. It is equally well settled that the prosecution, while relying on circumstantial evidence, must prove its link in the chain of circumstances beyond a reasonable doubt. If any link is weak or missing, the benefit of the doubt must go to the accused. In Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in 1985 SCR (1) 88, the Hon'ble Apex Court laid down five golden principles, which are as follows:
I. The circumstances from which the conclusion of guilt is to be drawn are to be fully established.
II. The fact so established should be consistent only with the hypothesis of guilt of the accused.
III. The circumstances should be of a conclusive nature and tendency.
IV. They should exclude every possible hypothesis except the one to be proved.
V. There must be a complete chain of evidence so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
32. It is also equally well settled that when relying on circumstantial evidence, the prosecution must establish a complete chain of circumstances, consistent with the hypothesis of guilt. Suspicion, however strong, cannot take the place of legal proof.
33. The Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh reported in 1952-2 SCC 71, reminded that in cases, where the evidence is circumstantial, the circumstances which the conclusion of guilt is to be drawn should be in first instance is fully established, and all the facts so established should be consistent only with the hypothesis of guilt of the accused. The chain must Page No.# 16/23 be so complete that it rules out any theory other than the guilt of the accused.
34. In criminal jurisprudence, the circumstantial evidence is admissible and can lead to a conviction, but only if it satisfies a strict standard as recorded hereinabove. The prosecution has the onus to eliminate all reasonable hypotheses except that of the accused' guilt. Any gap in the evidentiary chain mandates acquittal. Such a principle is based on another important principle that the liberty of an individual cannot be curtailed unless guilt is established with absolute certainty, even when relying solely on circumstantial evidence.
35. To summarise, what the prosecution must establish is a complete and unbroken chain of circumstances, which are established and point only to the guilt of the accused, and it excludes every other possible hypotheses. It is seen from the different judicial pronouncements that the Courts in India, while dealing with the circumstantial evidence, follow a conservative and cautious approach, especially in cases involving death sentence or life imprisonment, motive-based prosecution and where scientific and forensic evidence are missing or inconclusive.
36. As would be apparent from the materials on record, the prosecution case is heavily based on extrajudicial confessions made by the accused before PWs-14, 15 & 16. Apart from that, "the recovery of weapons used in the crime" at the instances of the accused is also pressed into service by the prosecution. However, it is to be noted herein that such an extrajudicial confession, allegedly made by the accused, is a weak piece of evidence.
37. Though the prosecution had projected certain circumstances to establish the guilt against the appellants, and the learned Trial Court concluded that such circumstances were duly proved, pointing to one and only hypothesis of guilt of the accused, however, in the considered opinion of this Court, the prosecution has failed to establish any of such circumstances. For brevity, the circumstances which, according to the learned Trial Court, were established beyond a reasonable doubt are quoted herein below:-
a) The villagers of Luhit Chapori Borduwar suspected Raj Kumar Doley, his wife Bornali Doler and their Shantu Boley of praising witchcraft which is the motive for commiting the murder of the deceased persons.
b) Pursuant to the said belief, the accused persons formed an unlawful assembly and abducted Raj Kumar Doley from the place from where he used to catch fish in Borgula Konkur Ghat towards the Luhit river tying his hands Page No.# 17/23 and feet, Bornali Doley and JituDoley from their own house with the intention of causing their murder.
c) The deceased persons Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley were last seen together in the company of the accused persons.
d) After Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley went missing, police seized a sim card in the river bank and found blood stains on the bank of Luhit River which was tried to be washed by pouring water.
e) After arrest of the accused persons, accused Shri Limai Doley and accused Shri Atul Doley made extra-judicial confession before the police admiiting that all the accused persons had killed the deceased Raj Kumar Doley, his wife Bornali Doley and their son Jitu Doley suspecting them of practicing witch-craft pursuant to which their bodies were chopped into pieces and throw in Luhit River.
f) After arrest of the accused persons, accused Shri Limai Doley and accused Shri Atul Doley made extra-judicial confession before the police leading to recovery of two daos which were weapon of offence at their instance and from the place as shown by them;
g) The exhibit-9 sketch map showing the place where the deceased persons were thrown was prepared on the basis of the extra-judicial confession made by accused Shri Biswa Patir before PW-17.
h) The bodies of deceased persons could not be recovered thus proving the case of the prosecution of the accused persons killing Raj Kumar Doley, Bornali Doley and Jitu Doley with daos and after bringing the three dead bodies to the bank of Luhit river chopping them into pieces and throwing them into deep water.
i) The accused persons failed to give a plausible exaplanation to the circumstances appeaing against them in the questions put to them under Section 313 CrPC".
38. To prove the first two circumstances, the prosecution placed heavy reliance on the testimonies of PW-1 to PW-8. A closure scrutiny of the testimonies of these witnesses goes to show that none of the witnesses have said anything as regards the role of the accused persons in kidnapping the victims and killing them for practicing witchcraft, instead from their testimonies what is established is that police received information from PW-5 & PW-6 as regards kidnapping and killing of some villagers and when police visited the village, these PW-1 to PW-8 Page No.# 18/23 accompanied the police to search the missing persons and to the residence of the missing victims. None of these witnesses had named any of the accused persons in committing the offence.
39. A further scrutiny of the testimonies of the prosecution witnesses, this Court finds no evidence that any of the witnesses saw the victims together in the company of the accused persons, though one of the incriminating circumstances projected was "last seen together".
40. By now, it is well settled that the "last seen together" circumstance is a weak kind of evidence. One of the fundamental tenets of the "last seen together" theory is that there should be very little gap between the time when the accused was last seen with the victim and the recovery of a dead body. However, if the "last seen together' circumstance is established by cogent evidence and is duly corroborated by other evidence available on record, then the said circumstance can be relied upon for convicting the accused persons.
41. In the cases in hand, there are no statement of any of the witnesses testifying that he/she saw the accused last with the victims, even though it is presumed that the victims died, though admittedly, the dead bodies of the victims were never recovered.
42. The circumstances of "recovery of SIM Card" on the river bank and blood stains also do not render any assistance to the prosecution case. PW-1 to PW-8 were the witnesses in the presence of whom the Material Exhibit-1 (SIM Card), Material Exhibit-2 (Nokia Battery) and Material Exhibit-3 (Keypad of Mobile) were recovered. Though from the testimonies of these witnesses, more particularly in the absence of their cross-examination, it can be said that the prosecution has been able to establish beyond a reasonable doubt the recovery of the said exhibits from the river bank; however, there is no corroborative evidence, even to remotely suggest that these material exhibits belonged to the deceased persons. The sample of blood stains allegedly found on the river bank was not even sent for Forensic Examination. Therefore, such circumstances and facts in any manner do not lend any assistance to the prosecution case to link the accused to the commission of the crime.
43. Now, coming to testimonies of PW-14 to PW-16, through whom the prosecution tried to prove the extrajudicial confession made by the accused before them, that the house of the victims was found in a ransacked state on 29.08.2012, i.e., the next day since the victims were found Page No.# 19/23 missing and that the based on confessional statements of the accused Atul & Nimai led to the discovery of the weapons used in the crime. A closure scrutiny of the testimonies of these witnesses, we find that through these witnesses, what the prosecution has been able to establish is that the house of the victims was found in a ransacked condition. However, upon further scrutiny, relating to the confession made by the accused, this Court finds that the alleged confession was made before these witnesses, while the accused were inside the police lockup and the police were present during the confession.
44. The prosecution has placed heavy reliance on such a confessional statement and subsequent recovery of the weapons at the instances of the two accused. Here, we take note of the propositions of law laid down by the Constitution Bench of the Hon'ble Apex Court while dealing with the provisions of Sections 24 to 27 of the Indian Evidence Act and Section 162 CrPC in State of U.P. Vs. Deoman Upadhyaya reported in (1960) SCC online SC 8. The propositions can be culled out in the following manner:-
(i) A confessional statement made by an accused to a police officer or procured by inducement, threat or promise having reference to the charge against him cannot be proved against him in a proceeding in which he is charged with the commission of an offence, whether such statement is made by such person in custody or not.
(ii) A confession made to a person other than a police officer, while in custody of police, cannot be used as evidence against such person in a proceeding in which the said person is charged with the commission of an offence, subject to the condition that such confession is made in the immediate presence of a Magistrate.
(iii) A statement made, whether it is a confession or not, to another person, when the maker of the confession is not in custody, the person before whom such statement is made may be proved if it is otherwise relevant; however, the person before whom such confession is made shall not be a police officer.
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45. In the cases in hand, the prosecution witnesses before whom such confessions were made, unequivocally testified that such confessional statements were made before them, while the accused persons were in police custody inside a lockup, and a police officer was present while making such confessional statements. Therefore, the learned Trial Court committed a serious error of law by relying on confessional statements made by the accused before the prosecution witnesses while in police custody and in the presence of a police officer.
46. Now, coming to the discovery of the weapons used in the commission of crime, law as regards the admissibility of the statements of the accused recorded under Section 27 of the Evidence Act, is well settled since the decision of the Privy Council in Pulukuri Kotayya Vs. King-Emperor reported in (1947) 0 Supreme (SC) 4, wherein it was held that as per Section 27 of the Evidence Act, only the information leading to actual discovery of facts in consequence of such information would be admissible in evidence, but the extent of information admissible must depend upon the exact nature of facts discovered, to which such information is required to be related. In Deoman Upadhyaya (supra), it was held that the part of the information given by a person, whilst in public custody, (whether the information is a confession or otherwise), which distinctly relates to a fact thereby discovered, is only provable in a proceeding in which the person is charged with the commission of an offence.
47. In the cases in hand, so far relating to the discovery of two daos, one Kopi dao (Material Exhibit -7) and one Mesi dao (Material Exhibit-8), what is seen is that, as per PW-9, both were found near the fishery lying in the open. Thus, it cannot be said from this witness that the discovery of Material Exhibits-7 & 8 were led by two accused persons, i.e., Atul & Nimai. The testimony of PW-10, who is also a witness to the discovery, deposed that the daos were found near the Subansiri River. PW-11 also deposed that the accused confessed their guilt before the police, and the police found the Mesi dao near the Subansiri river and the Kopi dao from the house of the accused Nimai. This witness reaffirmed that the Mesi dao was recovered near the Subansiri River. The Investigating Officer, PW-18 testified that Exhibit-7 and Exhibit-8 were recovered from the House of the two accused persons. Thus, from these star witnesses of the prosecution, even a doubt is created as regards the place of recovery of Material Exhibits 7 & 8. One set of witnesses testified that the daos were recovered from near the fishery belonging to the victims, and others testified that the same were recovered from near the Subansiri river and according to the Investigating Page No.# 21/23 Officer from the houses of the Accused. None of these witnesses testified that the discovery of the daos which were led by the accused persons; instead, according to them, it was found near the Subansiri River/near the fishery of the victims. Therefore, it cannot be concluded, based on such evidence, that the information was given by the accused as regards the weapons used in the crime. Accordingly, it was recovered based on such statement. Therefore, we are of the unhesitant view that the prosecution has failed that the discovery of the weapons was in consequence of the information received from the accused and thus, the prosecution has been unable to establish that based on the information given by the accused while in police custody, it had led to the discovery of the weapons, which were distinctly within the knowledge of the accused. On the other hand, according to the prosecution witnesses, the weapons were found in an open place.
48. Above that, from the evidence of the Investigating Officer (PW-18), it is clear that this witness has not brought on record any Panchnama regarding the confessional statements of the accused persons. He has neither testified to the exact statement made by the accused persons before him, nor has he deposed that the accused persons led him to the place of recovery of the objects.
49. To summarise, we are of the unhesitant opinion that the circumstances projected by the prosecution and as recorded by the learned Trial Court and as quoted hereinabove, do not form a complete chain of circumstances, which lead to an irresistible conclusion that the accused had committed the alleged offence. There is no iota of evidence suggesting that the accused and the victims were last seen together. There is also no evidence that the Material Exhibits-7 & 8, were seized/recovered at the instance of the accused. These were simple recoveries/seizures from open, and such recoveries do not help the prosecution's case anyway. The recovery of Material Exhibits- 1 & 3, i.e., SIM Card, Mobile Keypad, respectively, and the blood stain, does not prove any connection of the accused with the alleged offence, for the reason that the blood stain and the other articles were not tested to show any connection between the accused and the alleged offence or that these Material Exhibits belong to the missing victims. The alleged extrajudicial confessions were admittedly made inside police custody and in the presence of police officers, and therefore, such confessions cannot be used against the accused persons. No Panchnama was there suggesting any confessional statement before police or otherwise, based on which the prosecution claimed to have recovered the weapons used in the crime.
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50. Therefore, in the totality of the matter, we are of the unhesitant view that the circumstances do not form a complete chain, which lead to an irresistible conclusion of the guilt of the accused. Instead, it is a case of no legal evidence against the accused. Thus, none of the pieces of evidence relied on as incriminating by the Trial Court can be treated as incriminating pieces of circumstantial evidence against the accused. An accused can be convicted on legal evidence, and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis, except the guilt of the accused. It is by now well settled that between "may be true" and "must be true", there is a long distance to travel, which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned as a convict, which, in this case, is totally absent.
51. Accordingly, for the reasons recorded hereinabove, the judgment and order of conviction dated 12.03.2020 and the order of sentence of the appellants dated 13.03.2020 passed by the learned Additional Sessions Judge, Jorhat in Sessions Case No. 41/2013 corresponding to G.R. Case No. 125/2012, stand set aside and the appellants are acquitted from the charges leveled against them.
52. We have already noted that the accused/convict, Shri Limai @ Nimai Doley has not preferred any appeal against the impugned judgment & order of conviction and the order of sentence. However, in our considered opinion, the evidence produced by the prosecution against all the accused persons is inseparable and indistinguishable and we have already held that the very substratum of prosecution case fails and therefore, though the convict, Limai @ Nimai Doley has not preferred any separate appeal, for the same reasons as recorded hereinabove, for the acquittal of the appellants, must also apply to the said accused and he is also entitled to the same benefit. Accordingly, the said convict also stands acquitted.
53. For the reason that we have acquitted the accused, we need not go into aggravating and mitigating circumstances noted down by the Trial Court for affording the appellant, i.e., Rajen Doley, a 'Death Sentence.' Accordingly, the Death Sentence Reference is also dismissed.
54. The accused are set at liberty forthwith, if not detained or wanted in any other cases. The bail bonds stand discharged. The TCR be returned back to the Trial Court forthwith.
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55. Registry to forward a copy of this judgment and order to the Superintendent of District Jail, Jorhat.
JUDGE CHIEF JUSTICE Comparing Assistant