Gauhati High Court
Balu Dhan vs The State Of Assam And Anr on 22 February, 2021
Equivalent citations: AIRONLINE 2021 GAU 204
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/21
GAHC010212112019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/77/2019
BALU DHAN
S/O. LT. DEBARU DHAN, R/O. DEOBIL GAON, P.S. TENGAKHAT, DIST.
DIBRUGARH, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.
2:SRI BOGAPANI DHAN
S/O-LATE MANGRU DHAN
VILL-DEOBIL GAON
PS-TENGAKHAT
DIST. DIBRUGARH
ASSAM
Advocate for the Petitioner : MR. N K BARUA, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT AND ORDER (Oral) Page No.# 2/21 Date : 22-02-2021 (Suman Shyam, J) Heard Mr. N. K. Barua, learned Amicus Curiae appearing for the appellant. Also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam, appearing for the State. None has appeared for the informant/ respondent No.2.
2. This appeal from Jail is directed against the judgment and order dated 24.04.2019 passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No.22/2016 convicting the appellant under section 302 of the Indian Penal Code (IPC) for committing murder of his wife Lakhi Dhan and sentenced him to undergo imprisonment for life and also to pay fine of Rs.500/- with default clause.
3. The prosecution case, in brief, is that the accused/appellant Balu Dhan had murdered his wife Lakhi Dhan and buried the dead body in the premises of his house under the old latrine. Since 12.11.2015 Lakhi Dhan was missing. After a frenetic search and on the basis of extra-judicial confession made by the appellant the dead body of the victim was eventually dug out by the police from place where it was buried.
4. On 15.11.2015, an ejahar was lodged with the Officer-in-charge of Tengakhat Police Station by Sri Bogapani Dhan (PW-1) reporting the incident to the police with a request to arrest the accused and investigate the matter. Based on the said ejahar, Tengakhat Police Station Case No.65/15 was registered under Section 302/201 of the Indian Penal Code. The responsibility for carrying out investigation in the police case was entrusted upon S.I. Numal Borah. During the course of investigation the Investigating Officer (I.O.) had conducted inquest on the body and the dead body Page No.# 3/21 was also forwarded for autopsy examination. The I.O. had prepared a sketch map of the place of occurrence, recorded the statements of the witnesses and thereafter, submitted charge-sheet against the accused under Section 302/201 of the IPC. Based on the charge-sheet submitted by the I.O. charge was framed against the appellant under section 302/201 IPC which was read over and explained to the accused but since the accused had pleaded not guilty, the matter was sent up for trial.
5. By the impugned judgment and order dated 24.04.2019, the learned Sessions Judge had convicted the appellant primarily by taking note of the extra-judicial confession made by the appellant admitting to the fact that he had killed his wife and also pointing out the place where the dead body was buried. The learned Sessions Judge was also of the view that the accused was last seen together with his wife i.e. the deceased immediately before her disappearance and therefore, the conviction was also partly based on "last seen together" theory which was held to be proved by the prosecution.
6. In order to establish the charge brought against the accused the prosecution side had examined as many as 11 witnesses. However, the defence side did not adduce any evidence.
7. PW-1 Bogapani Dhan is the informant in this case and in his deposition, the witness had stated that he knew the accused Balu Dhan. The house of the accused is situated in front of his house and there is a road between their houses. According to PW-1, deceased Lakhi Dhan is the wife of the accused. The incident took place Page No.# 4/21 during the Kali Puja of 2015 on which date, Kali Puja was celebrated in front of the house of Balu Dhan but his wife Lakhi Dhan was not seen in the Puja Mandap. On the next day also they did not see Lakhi Dhan. On the 3 rd day one Bishal Oriya (PW-9) had asked the appellant Balu Dhan about his wife and then he had stated before Bishal that he had murdered his wife Lakhi Dhan and buried her in the old latrine of his house. Later on, Bishal had told the PW-1 about the death of Lakhi Dhan and also informed the Gaonburah Buleswar Konwar (PW-2) and one member of "Asha Karmi"
Sri Shyamal Saluk (PW-4). Then the Gaonburah and the Asha Karmi, accompanied by several villagers, went to the house of Balu Dhan and asked about his wife when the accused Balu had showed the latrine of his house where he had buried the deadbody of his wife after killing her. At that time, the PW-1 was also present. PW-1 had also stated that the Gaonburah had informed the police of Tengakhat Police Station and handed over Balu to the police. During investigation, police came to the place of occurrence and recovered the dead body from the latrine where the accused had buried his wife.
8. During his cross-examination, PW-1 had stated that he was not present at the time of recovery of the dead body and that he cannot say wherefrom the dead body was recovered. PW-1 had also stated that the house of Balu Dhan is situated in the field and there is no other house over there. People used to go to the paddy field by the side of the house of Balu Dhan. The witness had also stated that he came to know that the police recovered the dead body, as shown by the Gaonburah and he did not know who killed the deceased person and how she was killed. He lodged the Page No.# 5/21 F.I.R. as per instruction of the Gaonburah. PW-1 had also stated that he heard that the deceased was involved in theft at the neighbouring houses of the village and once the deceased person had sold a cow which was stolen from her neighbour. On several occasions public meetings were held in connection with the theft of the cow.
9. PW-2, Buleswor Konwar is the Gaonburah (village headman) of Deobil village. In his testimony, PW-2 has stated that he knew the accused person and the deceased Lakhi Dhan was the wife of the accused. On 15.11.2015 when he was at his home, at that time PW-1 and Lokhai Dhan (PW-7) came to his house and informed him that Balu Dhan had told that he killed his wife Lakhi Dhan and buried her in the latrine of his house. He then asked them to call the accused Balu Dhan to his house and told that he will be going to Balu Dhan's house within a short time. PW-2 had also stated that, he then went to the house of Balu Dhan along with several other villagers and asked him about his wife. Then the accused Balu Dhan told before him and the villagers present there that he had murdered his wife and buried her in his house compound. He, along with other villagers, showed the place where the accused had buried the dead body and informed the Circle Officer of Tengakhat and Police officer of Tengakhat Police Station. The police from Tengakhat Police Station had asked him to bring the accused person to the Police Station. Accordingly, he took the accused along with two other persons in two bikes to the Tengakhat P.S. and the police took him into custody. The police from the Tengakhat P.S. went to the place of occurrence and he also accompanied them. By the time the Circle Officer had also arrived in the house of Balu Dhan and he, along with the villagers, had shown the police where the deceased was shown to have been buried by Balu Dhan. Police Page No.# 6/21 then recovered the dead body of Lakhi Dhan from the place which was shown by the accused person. After recovery of the dead body, inquest was done over the same by the police where he saw a "gamocha" was wrapped in the neck of the deceased. After inquest, police took the dead body. Ext-3 is the inquest report and Ext-3(1) is his signature. The witness has also stated that during investigation his statement was recorded by the Magistrate under Section 164 Cr.P.C. Ext-4 is the statement bearing his signature.
10. PW-2 also deposed that Bogapani Dhan (PW-1) and Lakhai Dhan (PW-7) had informed him at about 8.00 a.m. of 15.11.2015 but he had not stated before the police about asking them to bring the accused person from his work place. PW-2 had also stated that he had not stated before the Magistrate of having informed the Circle Officer along with Tengakhat Police Station and that at the time of recovery of the dead body, Balu Dhan was not present. During his cross-examination PW-2 also confirmed that he had once held a meeting regarding theft of cow by the deceased in the village.
11. PW-3, Sri Tulaprasad Handique, was the Gaonburah of neighbouring village and in his deposition this witness had stated that on 15.11.2015, the Gaonburah of Deobil village Sri Buleswar Konwar (PW-2) had rang him up and informed about the incident and asked him to come to his village. Accordingly, PW-3 had reached the Deobil Village at about 12 noon. When he reached the place of occurrence he saw that police along with the Magistrate was present there and they were digging out the dead body of Lakhi Dhan from a latrine at the back side of the house of the Page No.# 7/21 accused. PW-3 had stated that he saw the dead body of Lakhi Dhan covering her face with a cloth. There he came to know from the Gaonburah of that village that accused Balu Dhan had killed his wife and buried the body in the latrine at the back side of his residence. After that the police recorded his statement. Later on, his statement was also recorded by a Judicial Magistrate under Section 164 Cr.P.C and Ext-5 is the said statement. During his cross-examination PW-3 had stated that after returning from Police Station, Bogapani Dhan (PW-1) had shown the police the place where the dead body was buried.
12. PW 4, Sri Shyamal Saluk, is a neighbour of the deceased Lakhi Dhan and appellant Balu Dhan. In his deposition, the PW-4 had stated that he knew the informant Bogapani Dhan and also knew deceased Lakhi Dhan. The deceased was the wife of the accused. PW-4 has stated that on 15.11.2015, he went to the house of the accused person as the Gaonburah was also present there, at about 8.00 a.m. One Manu Jajo, Dipak Jojo and three other persons were also present. Then the Gaonburah asked the accused person as to the whereabout of his wife. The accused person confessed in front of the Gaonburah that he had killed his wife Lakhi Dhan and that he had buried the dead body in the back side of his residence. PW-4 had stated that he was present when the confession was made by the accused in front of the Gaonburah. However, during his cross-examination PW-4 had stated that he did not clearly hear the discussion between the Gaonburah and accused Balu Dhan. Then he along with the Gaonburah informed the police. When the Gaonburah had called Balu Dhan, he waited for 15 minutes near the place of occurrence as Balu Dhan was not present in his residence. PW-4 had also deposed during his cross-
Page No.# 8/21 examination that he was present when Balu Dhan showed him the place where the dead body was buried.
13. PW-5 is the doctor who was on duty in the Department of Forensic Medicine, Assam Medical College, Dibrugarh on 15.11.2015. PW-5 had carried out post-mortem examination in the dead body of the deceased and thereafter submitted post mortem report i.e. Ext-6. The finding of the post-mortem report are as follows :-
"I- EXTERNAL APPEARANCE :
1. Condition of subject stout emaciated, decomposed etc :
A female dead body wearing a blouj, mekhela and petticoat, body and cloth stained with soil and sand. Face and abdomen bloated. Skin pilled at places. A tuff of synthetic hair (Tarshell) found around the nect (ligature material).
2. Wounds - position and character :
Injuries :-
1. Lacerated injury of size 3 cm x 1 x 3cm over left parietal region of scalp;
2. Contusion of size 5 cm x 4 cm after reflection of the scalp over left parietal region;
3. Bruise Position size and nature :
4. Mark of ligature on neck dissection, etc. Ligature mark : A transverse ligature mark, completely encircling the neck, below the thyroid cartilage found. The base of the mark is grooved, dark brown in colour and parchment like. The area around the ligature mark is contused and abraded. The underlying subcutaneous tissue of the mark is found to the contused. Size of the mark is 30 cm x 2 Page No.# 9/21 cm. Hyoid bone not fractured. The knot the ligature material was single and was present in front of the neck at mid line"
The doctor has opined that the deceased had died due to constriction of the neck by application of ligature material, which was ante mortem and homicidal in nature. All the injuries were ante mortem and caused by blunt force. Approximate time since death was 2 to 3 days.
14. PW-6, Sri Juan Machi Dhan, is another prosecution witness who had deposed that the deceased had died about two years back. On the day of the incident there was Kali Puja in their house and when they did not find Lakhi Dhan they asked the accused about his wife when the accused had replied that he had killed his wife and buried her under the latrine in his house compound. PW-6 has also stated that when the accused had admitted that he had killed his wife, Lakhoy (PW-7) was present. The Gaonburah was informed about the incident and accordingly he came to the place of occurrence. The Gaonburah then informed the police about the incident and the police dug and recovered the dead body. Police had also recorded his statement in this connection.
15. During his cross-examination, PW-6 has stated that he was not present when the dead body was exhumed but he had heard that the body was recovered. The witness had also stated that all the villagers had complaints against Lakhi Dhan for her frequent involvement in thefts in the village. Several meetings had already been held in the village because Lakhi Dhan used to commit thefts. According to PW-6, there is a paddy field behind the accused person's house which adjoins a tea garden and there is a road on the side of accused person's house which is a busy Page No.# 10/21 road. PW-6 has stated that he had not seen as to who had killed the wife of the accused. This witness has, however, denied the suggestion that the villagers had killed Lakhi Dhan as she used to commit theft frequently creating nuisance.
16. PW-7 i.e. Sri Lokhoi Dhan, is another cousin of the accused and he has deposed that he knew the informant Bogapani who is his uncle and deceased Lakhi Dhan was the wife of the accused. According to PW-7, on the day of the incident, people gathered in the accused person's house at about 12/12.30 p.m. The Gaonburah (PW-2) had asked him to stop. When the Gaonburah asked the accused, he had admitted to killing his wife and the accused had shown the place where he had buried his wife. The accused showed the abandoned latrine to the Gaonburah in his house compound. PW-7 has stated that he was present when the accused had admitted that he had killed his wife before the Gaonburah. When the police came, he had dug the place, where the dead body was buried, as per instruction of the police. He had seen the body of the victim.
17. PW-8, Johan Kerkata, is also resident of the same village, who has deposed that he knew deceased Lakhi Dhan. PW-8 has stated that one morning at about 7.00 a.m. a few days after Durga Puja the accused person's wife (Lakhi Dhan) came running to his house on being pursued by the accused who was wielding a "Khamti Dao" (sharp dao) and chasing her. Lakhi Dhan entered his house through the back door and cried "Bochao... Bochao..." (save me.... save me ...). At that time, PW-8 claims to have dissuaded the accused and then the accused and his wife left for work. After Lakhi Dhan's death, police had called and asked him about the incident.
Page No.# 11/21 During his cross-examination, PW-8 had, however, admitted that he did not state before the police that one morning at about 7.00 a.m. the accused Balu Dhan had chased his wife with a sharp dao and his wife came running to his house crying "Bochao... Bochao..." (save me.... save me ...). PW-8 had also stated that he could not remember from whom he had heard that the accused had killed his wife. This witness has, however, admitted that he had heard that the accused person's wife had the habit of committing theft.
18. PW-9, Sri Bishal Oria, is the witness before whom the accused is stated to have initially confessed his guilt. In his deposition, PW-9 had stated that the accused was working in his house. He noticed that the accused person was depressed and when he asked the reason for his depression the accused had admitted that he had killed his wife and buried her in the backyard of his house. PW-9 has stated that he then informed the student union member Shyamal Saluk (PW -4) and the student leader informed the police. The police later recorded his statement.
19. PW-10, Sri Moon Gogoi, is the Circle Officer of Tengakhat Revenue Circle, in whose presence, the dead body was exhumed from a pit in the backside of the house of Balu Dhan. PW-10 had stated that both the hands of the deceased were tied to the back with a plastic rope and an orange colour shawl and a gamusa was found around the neck. The body was found in the pit with both the legs folded, hands tied to the back. PW-10 had performed the inquest on the dead body and had deposed that he had found injuries on the head and the left eye. No sign of other injuries were apparently noticed on the dead body.
Page No.# 12/21
20. PW-11, Numal Chandra Bora, is the Investigating Officer (I.O.) in this case and he has deposed that after getting the information, the Officer-in-Charge of Tengakhat P.S. registered G.D. Entry No.285 dated 15.11.2015 and the O/C had also informed the Circle Officer, Tengakhat Revenue Circle and asked him to proceed to the place of occurrence. Then he, along with S.I. Biren Baruah and staff, proceeded to Deobil Gaon. On the way to Deobil Gaon, he met the accused Balu Dhan who was being taken by the villagers to the Police Station and he asked them to go to the Police Station. When he reached the place of occurrence, he was shown a pit by Sri Tula Prasad Handique (PW-3), Sri Bogapani Dhan (PW-1) and Sri Buleswar Konwar and others, which was within the premises of the accused person's house. The body was covered by dried branches, twigs and grass and was camouflaged in a manner so as to make the pit appear like normal ground of the premise. PW-11 has also stated that the body was exhumed in his presence, inquest was held by the Circle Officer and the body was identified by Bogapani Dhan and thereafter forwarded for post- mortem examination.
21. In his statement recorded under Section 313 Cr.P.C. the accused/ appellant denied all the circumstances put to him including the allegation that he had killed his wife. He has stated that his wife was not a woman of good character. She went on the previous night on the pretext of going out for work and may be somebody had killed her and buried her. He claimed to be innocent by stating that he had not killed her. The accused had also stated that the Gaonburah had taken him to the Police Station but he did not know from where, the dead body of his wife was recovered since he was not present at that time.
Page No.# 13/21
22. Upon analysing the evidence available on record, the learned Sessions Judge, Dibrugarh was of the opinion that the extra-judicial confession made by the accused admitting that he had killed his wife and buried the body in the back of his premises stood fully established from the testimony of PWs-1, 2, 4, 6, 7 and 9. Moreover, by taking note of the evidence adduced by the PW-8, the learned trial court has also held that the circumstances of the "last seen together" theory also stood established in this case. However, the accused person had failed to discharge his burden cast under Section 106 of the Evidence Act by failing to explain as to how the dead body of his wife could be found buried in the backyard of his premises. Holding that the prosecution has succeeded in establishing the charge brought against the accused beyond all reasonable doubt based on circumstantial evidence, the appellant was convicted under section 302 IPC and sentenced to undergo imprisonment for life and also to pay fine of Rs.500/- with default clause.
23. Law is well settled that extra-judicial confession is a weak piece of evidence and the same can be relied upon for conviction if it is corroborated by other evidence on record. In the case of Ishwari Lal Yadav and another Vs. State of Chhattisgarh reported in (2019) 10 SCC 437 the Hon'ble Supreme Court has made the following observations :-
"21. The confessional statements made to the police by the appellants, cannot be the basis to prove the guilt of the accused but at the same time there is no reason to discard the confessions made to the independent witnesses at the time when Chirag's body was found, prior to the arrival of police. It is true that extra-judicial confession, is a weak piece of evidence but at the same time if the same is corroborated by Page No.# 14/21 other evidence on record, such confession can be taken into consideration to prove the guilt of the accused. In the case in hand, the evidence from independent witnesses is in one voice and consistent. The medical evidence on record also substantiated the case of the prosecution. In addition to the same, PW 2 and PW 3, who are the parents of the deceased have identified the clothes, which the deceased child was wearing on the date of missing. It is also clear from the evidence that the skeletal remains were removed. They have also found the cloth pieces, attached to skeletal remains. The colour of such cloth pieces was tallied with the description in the missing report lodged by PW 2 earlier on 4-3-2010. As such it is clearly proved beyond any reasonable doubt that the appellants are responsible for the offence alleged against them."
24. Therefore, the issue that would arise for consideration of this Court in the present proceeding is as to whether, the extra-judicial confession stated to have been made by the accused stood corroborated from the other evidence available on record so as to sustain his conviction. We would also be called upon to examine as to whether the finding recorded by the learned trial court to the effect that the victim was last seen together with the accused before going missing has been established by cogent evidence brought on record.
25. Let us now carefully examine the testimony of the witnesses PWs1, 2, 3, 4, 7 and 9 so as to ascertain as to whether there was in fact any extra-judicial confession made by the accused/appellant.
26. PW-1 is the informant in this case and according to this witness, the accused had stated before the PW-9 that he had murdered his wife and buried her in the old Page No.# 15/21 latrine of his house. PW-9 had told him about the death of Lakhi Dhan and also informed the Gaonburah (PW-2) and PW-4. Then the PW-2 and PW-4 and other villagers went to the house of Balu Dhan and asked about his wife. However, PW-2 has stated that it is the PW-1 and PW-7 Lakhoi Dhan who came to his house and informed that Balu Dhan had killed his wife Lakhi Dhan and buried her in the latrine of his house. The PW-2 then asked PWs-1 and 4 to call the accused person to his house but the said fact has neither been mentioned by the PW-1 nor the PW-7. PW-1 has stated that PW-9 had informed the PW-2 and PW-4 about the death of Lakhi Dhan on being confessed by the accused, but the PWs-4 and 9did not say so in their testimony.
27. PW-2 had stated that he had informed the Tengakhat Police Station and the Circle Officer (PW-10) about the incident, more particularly where the body was shown to have been buried but PW-10 in his deposition had stated that on 15.11.2015 he had got the information from the Tengakhat Police Station for performing inquest on a female dead body at Deobil Gaon in the compound of Balu Dhan.
28. PW-3, Tulaprasad Handique, had deposed that on 15.11.2015 he received a call from the PW-2 informing him about the incident with a request to come to his village and accordingly PW-3 had reached Deobil village at 12 noon. Upon reaching the place of occurrence he saw that the police along with the Magistrate were present and they were digging out the body of Lakhi Dhan from latrine in the backside of the house. There, he came to know from the Gaonburah and other villagers that accused Balu Dhan had killed his wife. However, the I.O. (PW-11) has Page No.# 16/21 deposed that the place of occurrence, was a pit shown by three persons, including PW-3 Tulaprasad Handique. The pit was obviously shown to the police before the process of digging out the body had commenced. Therefore, if PW-3 had reached the place of occurrence at 12 noon and saw that the police and the Magistrate were present and digging out the body, he could not have shown the pit to the police as stated by the PW-11.
29. According to PW-1, the accused had confessed to have killed his wife before the PW-9, Bishal Oria, who had informed the informant (PW-1) but the PW-9 Bishal Oria did not say so in his testimony. According to PW-9, after the accused had confessed to have killed his wife and buried her in the backyard of his house he had informed PW-4 Shyamal Saluk who had then informed the police. However, PW-4, Shyamal Saluk, did not say so in his testimony. Rather, it appears from the evidence on record that the PW-4 had reached the house of the accused at around 8.00 a.m. on 15.11.2015 when he saw that the accused person had confessed in front of the Gaonburah that he had killed his wife and buried the body in the backside of his residence in the old latrine. The testimony of PW-9, therefore, contradicts the evidence adduced by PWs-1, 2 and 4 and presents a completely different picture.
30. PW-6, Johan Kerkata, had stated that the accused had confessed in his presence and in the presence of PW-7 that he had killed his wife and buried the body. However, the PW-7 has given a completely different version where he has not even mentioned about the presence of PW-6 when the accused had allegedly confessed to have killed his wife. On the contrary, as per the version of PW-7, on the Page No.# 17/21 date of the incident at about 12/12.30 p.m. he saw people gathered around the house of the accused person, when the Gaonburah had asked him to stop. The Gaonburah (PW-2) then asked the accused when he admitted that he had killed his wife and the accused also showed the place where he buried his wife. But the PW-2 did not mention about the presence of PW-6 when the accused had allegedly made the confession. Moreover, if the PW-6 had reached the place of occurrence i.e. the house of Balu Dhan at around 12/12.30 p.m. then the accused could not have made the confession in his presence because as per the testimony of PW-3, the digging had started at around 12 noon when he had reached the place of occurrence and before that, the accused was handed over to the police by the PW-2 and the villagers and he was detained in the Police Station.
31. PW-9 has not stated the time and the date on which the accused had allegedly confessed to have killed his wife and buried her in the backyard of his house. However, the statement of PW-9 that he had informed Shyamal Saluk, the student leader, who, in turn, had informed the police clearly contradicts the testimony of PW-10 who stated that he received the information from the Tengakhat Police Station.
32. PW-3 has deposed that PW-1 had shown the police the place where the dead body was buried. But the PW-1 did not say so. Instead, the PW-1 had stated that he did not know wherefrom the dead body was recovered.
33. From the above analysis, it would be established beyond any shadow of doubt that there are major contradictions of serious nature in the testimony of PWs-1, Page No.# 18/21 2, 4, 6, 7 and 9 as regards the manner in which the accused had confessed to killing his wife and each of these witnesses have given a different version which were mutually inconsistent. In other words, the witnesses PWs-1, 2, 4, 6, 7 and 9 did not speak in one voice nor did they corroborate the place, time and manner in which the accused is stated to have confessed to his guilt. Therefore, it is evident that the prosecution has not only failed to prove the extra-judicial confession of the accused but there is also no corroborating evidence to show that the accused had killed his wife.
34. Coming to the evidence as regards the circumstances pertaining to the "last seen together" theory, the learned Sessions Judge had held that the accused was last seen together with the deceased when he had chased his wife into the house of PW-8 with a sharp dao. However, PW-8 did not state so before the police while recording the statement under Section 161 Cr.P.C. Therefore, there is improvement in the evidence of PW-8 which makes it wholly unreliable. Save and except the testimony of PW-8, there is no other evidence to even remotely indicate that the accused was "last seen together" with his wife before the incident took place. If that be so, the finding of the learned Sessions Judge that the circumstances of "last seen together" stood established through the prosecution evidence is clearly erroneous and in our view, calls for interference by this Court.
35. It is to be noted herein that the appellant had all along denied the charge brought against him and has stated that his wife was of a doubtful character. There are evidence on record to show that the villagers were annoyed with her for the Page No.# 19/21 various incidence of theft carried out by the deceased wife of the appellant. Moreover, it has also come out from the testimony of PWs-6 and 7 that there is a paddy field behind the house of the accused adjoining the tea garden and there was a busy road giving open access to the villagers to that part of the residential premise of the accused. Therefore, it was necessary for the prosecution side to lead evidence so as to establish those circumstances so as to eliminate the possibility of the deceased having been murdered by some unknown person and her body being buried in the backyard of the appellant's house under the old latrine so as to mislead the police. However, the prosecution has failed to do so in this case.
36. It also appears from the evidence on record that save and except the Gaonburah, none else seems to be clear about the actual version given by the appellant/accused in his the extra-judicial confession is concerned. It has come out from the evidence adduced by the PW-1 that even the FIR was written as per the instruction of the Gaongurah (PW-2). The PW-4, who had deposed regarding the confession made by the accused before the Gaonburah, had later on stated in his cross-examination that he has not clearly heard as to what was the discussion between the Gaonburah and Balu Dhan. As such, there are serious contradictions in the evidence adduced by the PWs-1, 2, 4, 6 and 7. The testimony of PWs-1, 2, 4, 6, 7 and 9 does not at all inspire confidence of this Court, in so far as the plea of extra- judicial confession is concerned.
37. It has also come out from the evidence on record that on 15.11.2015, in the morning hours, before digging of the deadbody was started, the accused was taken Page No.# 20/21 to the Police Station by the Gaonburah and some un-named villagers and thereafter, he was kept in the Police Station. There is no explanation as to why, no attempt was made to record the confessional statement of the accused under Section 164 Cr.P.C. in front of a Magistrate. If the accused had, in fact, confessed to have killed his wife before so many persons, there is no reason for us to presume that he would refuse to record his confessional statement before the Magistrate in accordance with law.
38. In Sharad Birdhichand Sarda Vs. State of Maharastra reported in (1984) 4 SCC 116 the Hon'ble Supreme Court has laid down the cardinal principles for conviction on the basis of circumstantial evidence. It was held that the prosecution must fully establish on circumstantial evidence all facts to exclude every possible hypothesis except the one to be proved and that there must be a chain of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. The prosecution must show that in all human possibility, the act must have been done by the accused. However, as noticed above, such chain of circumstances could not be proved by the prosecution.
39. Having regard to the evidence on record there is considerable doubt as to the culpability of the accused and therefore, as per the salutary principle in criminal jurisprudence the benefit of doubt, if any, must go in favour of the accused.
40. For the reasons stated herein above, we are unable to agree with the opinion expressed by the learned trial court that the charge brought against the accused has been proved beyond all reasonable doubt. Rather, we are of the opinion that the prosecution has failed to establish the charge brought against the appellant beyond Page No.# 21/21 reasonable doubt by leading cogent evidence.
41. In view of the above, the judgment and order dated 24.04.2019 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No.22/2016 is hereby set aside. The conviction of the appellant under Section 302 IPC stands interfered with. The appellant stands acquitted.
We are informed that the appellant is in Jail since his arrest on 15.11.2015. As such, we direct that the appellant be forthwith released from Jail if his detention is not required in connection with any other case.
The appeal stands allowed.
Before parting with the record, we wish to place on record our appreciation for the services rendered by Mr. N. K. Barua, learned Amicus Curiae, by rendering his assistance to the Court for disposal of the appeal and direct the Registry to make available to him, just remuneration, as per the notified rate.
Send back the LCR.
JUDGE JUDGE Comparing Assistant