Gauhati High Court
Page No.# 1/17 vs The State Of Assam And Anr on 20 December, 2022
Author: Parthivjyoti Saikia
Bench: Suman Shyam, Parthivjyoti Saikia
Page No.# 1/17
GAHC010305412019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./464/2019
SRI DIPAK DAS AND ANR
S/O- BHOTHO RAM DAS, R/O- VILL.- DAHUDI (SOLMARA), P.S. BELSOR,
DIST.- NALBARI, ASSAM.
2: SRI DIPUL DAS
S/O- BHOTHO RAM DAS
R/O- VILL.- DAHUDI (SOLMARA)
P.S. BELSOR
DIST.- NALBARI
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY P.P., ASSAM.
2:SRI BOTARAM DAS
S/O- LATE NATHORAM DAS
R/O- GHILAJARI (SOLMARA)
P.S. BELSOR
DIST.- NALBARI
ASSAM
PIN- 781338
Advocate for the Petitioner : MR. B K MAHAJAN
Advocate for the Respondent : PP, ASSAM
Page No.# 2/17 :: PRESENT ::
HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA For the Appellants : Mr. N. Mahajan, Advocate.
For the Respondent(s) : Ms. S. Jahan,
Addl. Public Prosecutor,
Assam.
Date of Hearing : 06.12.2022.
Date of Judgment : 20.12.2022.
JUDGMENT AND ORDER (CAV)
(Parthivjyoti Saikia, J)
Heard Mr. N. Mahajan, learned counsel appearing for the appellants. Also heard Ms. S. Jahan, the Addl. Public Prosecutor, Assam representing the State respondent.
2. This appeal is directed against the judgment and order dated 19.11.2019 passed by the learned Sessions Judge, Nalbari in Sessions Case No.34/2009 convicting the appellants under Sections 302/201 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default of payment of fine, they were sentenced to undergo rigorous imprisonment for a period of 6(six) months.
3. At about 7.30 P.M. on 30.04.2008, Bikash Das (PW-1), Manjil Das (PW-
2) were talking to Hemen Das (the deceased) by the side of the road. At that time, the appellant Dipak Das arrived there in his motorcycle. There Page No.# 3/17 was an altercation and after that, Bikash Das and Manjil Das left the place. Thereafter, Dipak Das took Hemen Das to his house and next morning the dead body of Hemen Das was found in a pond owned by Kalyan Das.
4. Sri Butaram Das, the elder brother of the deceased Hemen Das lodged the FIR before police on 01.05.2008 narrating the aforesaid facts. It is also alleged in the FIR that the appellant Dipak Das along with the other appellant Dipul Das, Raben Das, Smti. Batehi Das, Smti. Lobhita Das, Smti. Namita Das, Harinath Das, Smti. Sateli Das and Smti. Ranju Das got together and brutally assaulted Hemen Das causing his death and thereafter thrown his dead body to the pond.
5. The dead body of Hemen Das was subjected to post-mortem examination. The doctor found the following upon the dead body of the deceased-
Injuries :- 1. An ecchymosis is seen over the left forehead 3 cm above eye blow of size 3" X 2" reddish brown in colour.
2. A reddish brown area of abrasion with irregular margin, reddish brown area of hypermaca around the abrasion. It is seen close to over canthus of right eye of size 4 cm X 3 cm.
3. Another area of abrasion of size 3 cm X 2 cm, 5 cm below the wound No.2 is seen.
4. An abrasion of reddish brown colour is seen over the anteromedial aspect of the right elbow close to the medial epicostyle area size 3 cm X 2 cm is seen reddish brown in colour.
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5. Another abrasion is seen anterio medial aspect of the left elbow close to the medial epicostyle area size 3 cm X 2 cm reddish brown in colour.
6. An extensive area of reddish brown colour involving the chest on either side caused by burn in identical pattern causing a butter fly shaped wound is present. On cut section the burn involves deep into the subentanious tissue and muscles. The area of burn extends from 4 th sternocostat margin or either side to the costal margin or either side of size 16 cm X 10 cm. Eyes are congested.
Scalp:- An ecchymoses is seen on the left forehead 5 cm above the Eye brow. On cut open clothed blood is seen in the subentanious tissue. On cut open the front bone subdhural haemorrhage is seen over the area of 6 cm X 5 cm with pressure effect on frontal lobe of the brain with laceration of frontal lobe brain.
Pleurae:- Congested and patechial haemorrhage is seen. Collection of blood is seen around the lung. Specific right side.
Right Lung:- Congested and patechial haemorrhage is seen over the right lung and collection of blood is seen.
Left Lung:- Ruptured lower lobe left lung with collection of blood.
6. The doctor opined that the cause of death of the deceased was due to shock and haemorrhage as a result of injuries to the vital organ, brain and lungs.
7. On conclusion of police investigation, police filed the charge sheet Page No.# 5/17 against all those 9(nine) persons. On their appearance before the trial court, the charge under Section 302 of the Indian Penal Code read with Section 34 of the said Code and under Section 201 of the IPC were framed against all the accused persons.
8. During the trial of the case, the prosecution side examined 10(ten) witnesses including the police investigating officer and the doctor who had performed post-mortem examination upon the dead body of the deceased.
9. The accused persons did not examine defence witnesses.
10. Finally, on the basis of the evidence on record, the trial court convicted the appellants Dipak Das and Dipul Das under Sections 302 and 201 of the Indian Penal Code read with Section 34 of the said Code. Other accused persons were found not guilty and they were acquitted form this case.
11. We have carefully gone through the prosecution evidence.
12. The first witness to be examined by prosecution is Bikash Das (PW-1). He has stated in his evidence that on the day of occurrence at about 7.30/8 P.M., he along with Manjil Das (PW-2) were talking to Hemen Das and at that time the appellant Dipak Das arrived in his motorcycle. According to Bikash Das, the appellant Dipak Das forcibly took Hemen Das with him and on seeing that, he along with Manjil Das went back to their homes. Bikash Das states that when he reached his house, the mother of Hemen Das arrived there and inquired about the whereabouts of Hemen Das. The witness Bikash Das told the lady that her son Hemen Das was taken away by the appellant Dipak Das. The witness Bikash Das Page No.# 6/17 has stated that next morning, he heard that the dead body of Hemen Das was lying in the pond of Kalyan Das.
13. In his cross-examination, Bikash Das has stated that on the day of occurrence and at the relevant time, he was sitting on a roadside culvert with Manjil Das (PW-2). According to him, it was dark at that time. Bikash Das has stated that the appellant Dipak Das arrived there in a motorcycle and rebuked them. Bikash Das has stated that the appellant Dipak Das walked home while taking Hemen Das with him.
14. The witness Manjil Das (PW-2) has stated in his evidence that on the day of occurrence, he along with Bikash Das were talking to Hemen Das near a culvert and at that time the appellant Dipak Das arrived in his motorcycle. The appellant threatened them and therefore, Manjil Das and Bikash Das left the place. According to Manjil Das, the appellant Dipak Das took Hemen Das with him to his house and on the next morning, the dead body of the deceased was found floating in the pond of Kalyan Das.
15. In his cross-examination, Manjil Das has stated that at the relevant time of occurrence, he and Bikash Das met Hemen Das while he was sitting on a roadside culvert.
16. The third prosecution witness is Butaram Das (PW-3). He is the informant in this case and the elder brother of the deceased Hemen Das. He stated that on the day of occurrence, at about 7.30 P.M., his sister Fultara Das (PW-10) came running to him and informed him that Hemen Das was forcibly taken away by the appellant Dipak Das. Fultara requested this witness to rescue Hemen Das because she apprehended Page No.# 7/17 that he will be killed by the appellants. On hearing that news, Butaram Das immediately went to the house of Dipak Das and saw that Dipak Das and the persons named in the FIR were assaulting Hemen Das. Butaram Das has stated that he had seen that incident with his own eyes because the place was lit by electric light. Butaram Das has stated that Raben Das and a woman called Batahi had chased him away. Thereafter, Butaram Das gathered some neighbours and after half an hour, he along with the neighbours again went to the house of the appellant. Butaram Das has stated that when he reached the house of the appellant, this time there was no light. According to Butaram Das, on seeing them, the appellant Dipak Das told them from inside his house that he had already freed Hemen Das.
17. Butaram Das has stated that his brother Hemen Das was in love with the sister of Dipak Das and that is the reason why Hemen Das was assaulted by the appellants.
18. Butaram Das has further stated in his evidence that he along with the fellow neighbours returned from the house of the appellants and searched for Hemen Das and after 10.30 P.M., he verbally informed police about the disappearance of Hemen Das. But police did not come to the village.
19. Butaram Das has disclosed that next morning, he found the dead body of his brother Hemen Das floating in the fishery of Kalyan Das. That fishery is situated outside the village. Again, police was informed. This time, police came to the village. Butaram Das has stated that he noticed that blood was oozing from the nostrils and arms of Hemen Das. Butaram Page No.# 8/17 Das has further stated that there was a mark of electric iron on the chest of the deceased. He has stated that the private parts of Hemen Das was also damaged.
20. In his cross-examination, Butaram Das has stated that when Fultara Das first informed him about Hemen Das, he has immediately informed Nalini Das (PW-5), Kalyan Das and Dharani Das, but they did not accompany Butaram Das to the house of the appellants. Butaram Das has stated that subsequently, said Dharani had accompanied him to the police station.
21. Smti. Marami Das (PW-4) has stated in her evidence that on the day of occurrence one lady called Poddar (not examined) informed her that Hemen Das was taken away by the appellant Dipak Das. Marami Das has stated that she immediately went to the house of the appellants and she waited under a bamboo tree. Marami Das has stated in her evidence that she saw the appellant Dipul Das was tying Hemen Das with a mango tree and thereafter assaulting him. Marami Das further stated that after a while, the appellant Dipak Das arrived there and took away Hemen Das to the backside of his house. According to Marami Das, she could not see the subsequent events but heard some sounds only and next morning, she found the dead body of Hemen Das floating in the fishery of Kalyan Das.
22. Marami Das has stated in her cross-examination that after witnessing those incidents, she returned home and on the next morning, she discovered the dead body of Hemen Das.
23. The fifth prosecution witness is Nalini Das (PW-5). He has stated that Page No.# 9/17 one day Butaram Das has told him that his brother Hemen das was killed by the appellant Dipak Das the previous day and therefore requested him to come to the police station. Butaram Das reportedly informed this witness that after killing Hemen Das, his dead body was thrown in to a fishery. Nalini Das has stated that he accompanied Butaram Das to the police Station where Butaram Das had lodged an FIR.
24. In his cross-examination, Nalini Das has stated that Butaram Das is his fellow villager.
25. The sixth prosecution witness is Smti. Rina Das (PW-6). She is the mother of the Ranju Das who is named in the FIR as one of the accused. She has stated that she knew nothing about the occurrence.
26. The seventh prosecution witness is Dr. Nripendra Nath Dutta (PW-7). He had conducted post-mortem examination upon the dead body of the deceased and in his evidence he spoke about his findings.
27. The eighth prosecution witness is Dharanidhar Das (PW-8). He is a fellow villager. One day at about 7 A.M., he had heard that some people had beaten somebody to death in the house of the appellants. Dharanidhar Das has stated that on getting the information, he went to the house of the appellants who belonged to the same family and on reaching there, he met police personnel.
28. This witness was not cross-examined by the defence counsel.
29. The ninth prosecution witness is the Police Investigating Officer (PW-
9) who spoke about the investigation.
30. The tenth prosecution witness is Smti. Fultara Das (PW-10). She has Page No.# 10/17 stated in her evidence that on the day of occurrence at about 7.30 P.M., she went to a shop near her house. She noticed that the appellant Dipak Das was dragging Hemen Das towards his house. According to Fultara Das, the deceased Hemen Das was his step brother. On seeing the aforesaid incident, she followed the appellant Dipak Das and the deceased Hemen Das. She also reached the front courtyard of the house of Dipak Das. Fultara Das has disclosed that the appellants Dipak Das and Dipul Das saw her in their forecourt, they tried to assault her and chased her away. Fultara Das has stated that she immediately came to the house of the deceased to inform the family members and accordingly informed the PW-3 Butaram Das. Fultara Das has said that after getting the news from her, Butaram Das immediately went to the house of the appellants.
31. Fultara Das further stated in her evidence that she witnessed the appellants along with Batehi Das tying Hemen Das with a tree. Fultara Das has stated that next morning she came to know that the dead body of the deceased was found in the pond of Kalyan Das.
32. During cross-examination, Fultara Das has stated that she did not go to see the dead body of the deceased while it was discovered in a pond.
33. The appellants did not examine any witnesses. Therefore, on the basis of the evidence of the record, the trial court had arrived at the impugned finding.
34. We have heard the learned counsels of both sides.
35. In the case in hand, Hemen Das died because of the injuries Page No.# 11/17 sustained by him, on the day of occurrence, has not been disputed by the appellants. Therefore, the only question that arises is whether the appellants had caused the death of the deceased.
36. On careful perusal of the prosecution evidence, we find that there are no contradictions and discrepancies in the prosecution evidence. The evidences of the witnesses are found to be reliable and trustworthy and therefore inspired confidence.
37. The prosecution evidence has proved the following points:
A. The deceased Hemen Das was in love with the sister of the appellants.
B. On the day of occurrence at about 7.30 P.M., while the deceased Hemen Das was talking to Bikash Das and Manjil Das, the appellant Dipak Das arrived there and forcibly took away Hemen Das with him.
C. The witness Fultara Das has stated that she had seen the appellant Dipak Das dragging the deceased Hemen Das to their forecourt. When she followed Dipak Das up to the forecourt of his house, the appellants Dipak Das and Dipul Das chased her away. Thereafter, she immediately arrived at the house of Butaram Das and informed him about the said facts.
D. When Butaram Das went to the house of the appellants, he saw that they were assaulting Hemen Das and thereafter two persons namely, Raben and Batehi chased him away. After about half an hour, Butaram Das again visited the house of appellants along with some other villagers and this time, the appellant Dipak Das told him that he Page No.# 12/17 had already freed Hemen Das. Butaram Das also stated in his evidence that because Hemen was in love with the sister of Dipak Das and that is the reason why Dipak Das had assaulted Hemen Das.
E. The witness Marami Das had seen the appellant Dipul Das tying Hemen Das with a mango tree and after that, he was assaulted by the said appellant. Marami Das also noticed that after sometime, the appellant Dipak Das arrived there and took away Hemen Das to the back side of his house.
F. Next morning, the dead body of Hemen Das was found floating in a pond.
38. Now, another question that arises is as to whether the aforesaid facts have created a complete chain of circumstances, without any missing links, to hold that it is none other than the appellants who actually caused the death of Hemen Das.
39. So far as the evaluation, of the evidence in a case resting on circumstantial evidence is concerned, the principles thereof were laid down in the much celebrated pronouncement of the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) are 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 v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made:
Page No.# 13/17 [SCC para 19, p. 807: SCC (Cri) p. 1047] "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.
154. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evidence."
40. The principles on which circumstantial evidence and its probative value has to be tested, stand authoritatively laid down by the Supreme Court in the judgment G. Parshwanath v. State of Karnataka reported in (2010) 8 SCC 593, wherein the Supreme Court laid down as follows:-
"22. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eyewitness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. However, it is not derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not".
23. In cases where evidence is of a circumstantial nature, the circumstances from Page No.# 14/17 which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
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41. Those principles have been again reiterated by the Supreme Court in the pronouncement S.K. Yusuf v. State of West Bengal (2011) 11 SCC 754 wherein it was stated thus:
"32. Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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 that the act must have been done by the accused. (Vide Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] , Krishnan v. State [(2008) 15 SCC 430 : (2009) 3 SCC (Cri) 1029] and Wakkar v. State of U.P. [(2011) 3 SCC 306 : (2011) 1 SCC (Cri) 846]."
42. In Jainoddin S/O Karimbabu Shaikh v. State of Maharashtra, (2012) 12 SCC 127 the Supreme Court held thus:
"12. This case rests squarely on circumstantial evidence. While circumstantial evidence by itself is enough to form the basis of conviction, provided there is no snap in the chain of events; the chain of events must, thus, be complete in such a way so as to point to the guilt of the accused person and none other. Law on this point is well settled. We need not have to labour much on that. In the present case, the trial court and the High Court, after carefully considering the entire case of the prosecution and the evidence on record, have found that the chain of events is well Page No.# 16/17 established and the circumstances are complete and therefore, the appellant is guilty of the offence alleged against them."
43. It is trite that in a case based on circumstantial evidence, motive for committing the crime assumes great importance. It is a relevant factor in such cases. Motive is an enlightening factor in a process of presumptive reasoning. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.
44. What was the motive behind murder of Hemen Das?
45. Butaram Das has stated in his evidence that Hemen Das was in love with the sister of the appellants and that is the reason why Hemen Das was assaulted by them. This fact has not been challenged by the appellants during cross-examination of Butaram Das. Now, this Court has reason to hold that since the appellants did not approve the relationship of their sister with the deceased, they had committed his murder.
46. Apart from that, in a case resting on circumstantial evidence, a false answer offered by the accused when his attention is drawn to the circumstances, it renders the circumstances to be inculpating in nature. In such a situation a false answer can also be counted as providing "a missing link" for completing the chain of circumstances.
47. All the persons including the appellants who are named in the FIR belonged to the same family. The witness Fultara Das has stated in her evidence that Batehi Das was also assaulting the deceased along with the appellants. Similarly, Butaram Das has stated that when he had gone to the courtyard of Dipak Das, the aforesaid Batehi and another person Page No.# 17/17 called Raben Das chased him away.
48. We have already held that the deceased Hamen Das was maintaining love-affair with the sister of the appellants. From the evidence, it is clear that the appellants and their family never approved such a relationship with Hamen Das and therefore, Hamen Das was assaulted and ultimately murdered. It goes to show that the appellants had a common intention to commit murder of Hamen Das and they did it with the said common intention.
49. In the instant case, the chain of circumstances appearing against the appellants is complete without any missing links. The facts so established in this case are consistent only with the hypothesis of guilt of the appellants and they are not explainable on any other hypothesis except that the appellants are guilty.
50. We find that the learned trial court has correctly appreciated the evidence and has arrived at a correct finding. The impugned judgment does not require any interference of this Court. The appeal is found to be devoid of merit and therefore stands dismissed.
Send back the LCR.
JUDGE JUDGE Comparing Assistant