Gauhati High Court
CRL.A(J)/36/2021 on 22 August, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/25
GAHC010165342021
2024:GAU-AS:8734-DB
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL [Jail] no. 36/2021
Abhihud Jajowar, S/o - Late Simon Jajowar, R/o -
Chereli Gohain Gaon, Police Station - Borholla, District -
Jorhat
..................Appellant
-VERSUS-
The State of Assam
...................Respondent
Advocates :
Appellant : Ms. M. Barman, Amicus Curiae
Respondent : Ms. A. Begum, Addl. Public Prosecutor
Date of Hearings and Judgment & Order : 22.08.2024
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER [ORAL]
[Manish Choudhury, J.]
This criminal appeal from Jail under Section 383, Code of Criminal Procedure [CrPC], 1973 ['the Code' or 'the CrPC'] is directed against a Judgment and Order dated Page No. 2/25 04.02.2021 passed by the Court of learned Sessions Judge, Jorhat ['the trial court', for short] in Sessions Case no. 184[J-T] of 2018. By the Judgment and Order dated 04.02.2021, the accused-appellant has been convicted for the offence under Section 300, Indian Penal Code [IPC] and he has been sentenced under Section 302, IPC to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for another one month. It has been further ordered that the period of detention already undergone, would be set off under Section 428, CrPC and the fine amount after realization should be given to the family members of the deceased.
2. The case, Sessions Case no. 184[J-T] of 2018 arose out of Borholla Police Station Case no. 67 of 2018 and corresponding G.R. Case no. 430/2018. The First Information Report [FIR] in connection with Borholla Police Station Case no. 67 of 2018 was lodged before the Officer In-Charge, Borholla Police Station on 20.08.2018 by one Zaru Biyam Jajowar [since deceased] as the informant. In the FIR, the informant had inter alia mentioned that at around mid-night intervening 19.08.2018 and 20.08.2018, he heard groaning from the house of Rabi Jajowar. Going there, the informant [since deceased] found Rabi Jajowar in an unconscious state. The informant suspected that Abhihud Jajowar, that is, the accused had hacked Rabi Jajowar, that is, the deceased to death with sharp weapon. On receipt of the FIR [Ext.-5], the Officer In-Charge, Borholla Police Station registered the same as Borhholla Police Station Case no. 67 of 2018 for the offence under Section 302, IPC and took up the investigation of the case himself.
3. It transpires from the materials on record that prior to lodgment of the FIR, the Officer In-Charge, Borholla Police Station, Debo Jyoti Phukan [P.W.14] received a telephonic information from the Village Defence Party [VDP] personnel of Village - Chereli Gohain Gaon on 19.08.2018 to the effect that some unknown persons had assaulted one person in that village and the injured person was lying in an unconscious state. It was further informed by the VDP personnel that they had informed 108 ambulance to shift the injured person to hospital for medical treatment. On receipt of the said telephonic information, the Officer In-Charge, Borholla Police Station entered the information in the General Diary as General Diary [G.D.] Entry no. 281 dated 19.08.2018. Immediately after registration of the G.D. Entry no. 281 on 19.08.2018, P.W.14, Deba Jyoti Phukan along with his staff proceeded to Village - Chereli Gohain Gaon where the incident had Page No. 3/25 occurred and reached the house compound of the deceased, Rabi Jajowar. Going there, they found Abhihud Jajowar lying unconscious in a pool of blood with cut injuries on his neck. As in the meantime 108 ambulance service arrived at the place of occurrence [P.O.], that is, the house of the deceased, Rabi Jajowar, the injured person, Abhihud Jajowar was shifted to a hospital at Titabar. It has further emerged from the testimony of P.W.14 that when he [P.W.14] entered into the house of Rabi Jajowar, he found Rabi Jajowar [the deceased] lying dead in a pool of blood with cut injury in his neck. The incident was reported to the Superintendent of Police [S.P.], Jorhat and a request was sent by P.W.14 to the Magistrate for holding inquest on the deadbody of the deceased. As P.W.14 was informed that the inquest would be held only in the morning hours on the following day, he made arrangement for guarding the deadbody under the supervision of his staff with the help of the VDP personnel and villagers. It was in the morning hours on the following day, that is, on 20.08.2018, the informant Zaru Biyam Jajowar lodged the FIR [Ext.-5] in the Police Station. The informant, Zaru Biyam Jajowar was a brother of the deceased, Rabi Jajowar. After registration of the FIR [Ext.-5], the investigation was taken up by Deba Jyoti Phukan [P.W.14], the Officer In-Charge, Borholla Police Station himself and the statement of the informant, Zaru Biyam Jajowar was recorded in the Police Station. Thereafter, the Investigating Officer [I.O.] [P.W.14] proceeded to the P.O. When the Executive Magistrate arrived at the P.O., inquest proceeding on the deadbody of the deceased was conducted on 20.08.2018. After completion of the inquest proceeding on the deadbody at around 09-00 p.m. on 20.08.2018, the Executive Magistrate & Circle Officer, Titabar Revenue Circle recorded her findings in an Inquest Report [Ext.-1]. The deadbody was thereafter, sent to the Jorhat Medical College & Hospital [JMC&H] for post-mortem examination. After the arrival of the deadbody in the JMC&H at around 12-00 p.m., the post-mortem examination on the deadbody of the deceased was performed and after completion of the post-mortem examination, the Autopsy Doctor recorded his findings in a Post-Mortem Examination [PME] Report [Ext.- 4].
4. In the course of investigation, the I.O. [P.W.14] recorded the statements of witnesses available at the P.O. and prepared a Sketch Map of the P.O. [Ext.-6]. The I.O. seized [i] one yellow and black coloured blood stained torch [the colour of the front and the rear portion of the torch was black; the colour of the middle portion of the torch is yellow and the length was about 7 inches] vide Seizure List, M.R. no. 30/2018 [Ext.-3]; and [ii] one Page No. 4/25 blood stained Kopi dao [fitted to a wooden handle and the length of the dao along with the handle was about 16 inches] vide another Seizure List, M.R. no. 31/2018 [Ext.-2]. The I.O. also seized [i] two wooden piras [a kind of low stool] and [ii] One blood stained Gamocha. As the accused, Abhihud Jajowar was also treated in the JMC&H, the I.O. [P.W.14] collected a Injury Case Report [Ext.-8] from the JMC&H. After collecting the PME Report [Ext.-4] from the JMC&H and completing the investigation into the case, Borholla Police Station Case no. 67 of 2018, the I.O. [P.W.14] submitted a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 52/2018 dated 31.10.2018 [Ext.-7] finding a prima facie case well established against the accused for the offence under Section 302, IPC.
5. On submission of the charge-sheet, the Court of learned Sub-Divisional Judicial Magistrate [M], Titabar secured the appearance of the accused, Abhihud Jajowar from Jail custody on 04.12.2018. Finding that the copies were ready, the same were furnished to the accused in compliance of the provision contained in Section 207, CrPC. As the offence under Section 302, IPC is exclusively triable by the Court of Sessions, the Court of learned Sub-Divisional Judicial Magistrate [M], Titabar, by an Order of Commitment dated 04.12.2018, committed the case records of G.R. Case no. 430/2018 to the Court of Sessions, Jorhat for disposal. The learned Public Prosecutor was notified accordingly. The Jail authorities were directed to produce the accused before the Court of learned Sessions Court, Jorhat on 18.12.2018.
6. On receipt of the case records of G.R. Case no. 430/2018 pursuant the Order of Commitment dated 04.12.2018, the Court of Sessions, Jorhat ['the trial court'] registered the case as Sessions Case no. 184[J-T] of 2018. Upon appearance of the accused from Jail custody on 24.12.2018; and after hearing the learned Public Prosecutor and the defence counsel; and on perusal of the materials on record; the learned trial court, on 24.12.2018, framed the following charge :-
That you on or before 10.09.2018 in the night about 12-30 a.m. at Char-Ali Gohain Gaon under Borholla P.S., you had committed murder by causing the death of your brother Robi Zajowar, and thereby committed an offence punishable under Section 302, IPC within my cognizance.Page No. 5/25
7. When the charge was read over and explained to the accused, the accused pleaded not guilty and claimed to be tried. During the course of the trial, the prosecution side examined fifteen nos. of witnesses and exhibited seven nos. of documents in order to bring home the charge against the accused. The prosecution witnesses examined were -
[i] P.W.1 : Zirimiyan Topno; [ii] P.W.2 : Samuel Topno; [iii] P.W.3 : Ravi Chawtal; [iv] P.W.4 : Augustin Barla; [v] P.W.5 : Matiaz Bhengra; [vi] P.W.6 : Manuel Siddik; [vii] P.W.7 : Elisara Jajowar; [viii] P.W.8 : Sandhiya Jajowar; [ix] P.W.9 : Nowami Jajowar; [x] P.W.10 : Dr. Ved Prakash Gupta; [xi] P.W.11 : Kabita Kakati Konwar; [xii] P.W.12 :
Laban Baruah; [xiii] Satyajit Borah; and [xiv] Debo Jyoti Phukan [I.O.]. The documents exhibited during the trial were - [i] Ext.-1 : Inquest Report; [ii] Ext.-2 : Seizure List, M.R. no. 31/2018; [iii] Ext.-3 : Seizure List, M.R. no. 30/2018; [iv] Ext.-4 : PME Report; [v] Ext.-5 : FIR; [vi] Ext.-6 : Sketch Map of the P.O.; [vii] Ext.-7 : Charge-Sheet; and [viii] Ext.-8 : Injury Case Report of the accused. In addition, prosecution also exhibited two material exhibits and they are [i] Mat. Ext.-1 : two wooden piras; and [ii] Mat. Ext.-2 :
one kopi dao.
8. After closure of the evidence from prosecution side, the accused was examined under Section 313, CrPC providing him the opportunity to explain the circumstances appearing against him in the evidence led by the prosecution. The plea of the accused was denial.
When the accused was asked as to whether he would adduce any evidence in support of his defence, the accused declined to adduce any defence evidence. After hearing the learned counsel for the parties and upon appreciation of the evidence/materials on record, the learned trial court rendered the Judgment and Order dated 04.02.2021, assailed herein.
9. We have heard Ms. M. Barman, learned Amicus Curiae appearing for the accused-
appellant and Ms. A. Begum, learned Additional Public Prosecutor for the respondent State.
10. Ms. Barman, learned Amicus Curiae appearing for the accused-appellant has submitted that the case in hand is one resting on circumstantial evidence as the prosecution had not led any direct evidence. Though there were a number of witnesses who arrived at the place of occurrence [P.O.], that is, the house of the deceased immediately after the Page No. 6/25 occurrence, but nobody had deposed to the effect that they had witnessed any incident of assault. Ms. Barman has further submitted that from the evidence/materials on record, it would emerge that the accused was wrongly implicated as he himself sustained a grievous injury in the alleged incident. The prosecution did not lead any evidence as regards the circumstance in which the accused had sustained the grievous injury. Ms. Barman has further contended that the obligation cast on the prosecution to lead reliable and credible evidence in support of the circumstances was found to have not been properly discharged and as such, there were many missing links leaving the chain of circumstances incomplete. Submitting so, learned Amicus Curiae has contended that the Judgment and Order of conviction and sentence passed by the learned trial court calls for interference and the accused-appellant is entitled to be acquitted.
11. Au contraire, Ms. Begum, learned Additional Public Prosecutor appearing for the State has supported the Judgment and Order of conviction and sentence passed by the learned trial court by contending that the learned trial court has returned the finding of guilt after finding the chain of circumstances to be complete. It was the accused who stayed in the house of the deceased on the fateful night and when the deceased sustained the fatal injuries, as recorded in the PME Report [Ext.-4], inside his house, it was the deceased who was the only other inmate in the house and as such, the rule of evidence embodied in Section 106, Evidence Act is clearly applicable in the case in hand. The theory of last seen together is also relevant in the case and in the absence of any proper explanation by the accused in what situation the deceased sustained those injuries on his person, the same is a strong circumstance against the accused and such non-explanation had completed the chain. Ms. Begum has, thus, contended that the Judgment and Order passed by the learned trial court needs no interference.
12. We have given due consideration to the submissions of the learned counsel for the parties. We have also perused the evidence/materials on record including the testimonies of the prosecution witnesses and the documentary evidence, available in the case records of Sessions Case no. 184[J-T] of 2018, in original. We have also considered the decisions cited and found relevant in the facts and circumstances obtaining in the case in hand.
13. As mentioned above, the prosecution had examined fourteen nos. of witnesses to bring home the charge of murder against the accused during the trial. In addition, one witness, Page No. 7/25 Dr. Nizamuddin Khan was examined as a Court Witness, C.W.1. The prosecution witnesses - P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 and P.W.9 - are inhabitants of Village - Chereli Gohain Gaon and close neighours of the deceased. Among them, P.W.7 and P.W.8 are close relatives of the accused and the deceased. P.W.1 is the Autopsy Doctor whereas P.W.11 was the Circle Officer, Titabar Revenue Circle who conducted the inquest proceeding. P.W.12 is the then In-Charge, Borholla Police Out Post, who accompanied the Officer In-Charge, Borholla Police Station [the I.O. - P.W.14] to the P.O. on 20.08.2018. P.W.14 was the Investigating Officer [I.O.] of the case who completed the major part of the investigation and P.W.13 was the subsequent I.O. who after completing the remaining part of the investigation, submitted the Charge-Sheet [Ext.-5]. C.W.1, Dr. Nizamuddin Khan in the capacity of Registrar, ENT Department, Jorhat Medical College & Hospital [JMFC&H] examined the injuries sustained by the accused at the JMC&H on 20.08.2018.
14. From the testimonies of the prosecution witnesses - P.W.1 to P.W.9, it has emerged that P.W.7 and P.W.8 who are close relatives of the accused and the deceased, were the first ones along with the informant, Zaru Biyam Jajowar [since deceased] and one Rohit Tanti [not a witness], to reach the P.O., that is, the house of the deceased. The prosecution witnesses - P.W.3, P.W.4 and P.W.6 - reached the P.O. after P.W.7 and P.W.8, but earlier than the prosecution witnesses - P.W.1, P.W.2 and P.W.5.
15. P.W.7, Elisara Jajowar is the mother of the accused and she knew the deceased also as the deceased was the son of her brother-in-law [Borjona]. P.W.7 also knew the informant, Zaru Biyam Jajowar and in her testimony, P.W.7 stated that the informant had already died. Deposing to the effect that the occurrence took place during the night hours on a day in August, 2018, P.W.7 further deposed that when on that day she was sleeping in her house, she was informed by the informant [since deceased] and Rohit Tanti by coming to her house and waking her up that some incident had occurred in the house of the deceased. Accordingly, she [P.W.7] along with her daughter-in-law [P.W.8] went along with the informant and Rohit Tanti to the P.O. [the house of the deceased]. Going there, she [P.W.7] saw her son [the accused] with a cut injury on his neck. The deceased was found inside his house and she [P.W.7] could see him lying inside the house through a gap in a door of that room. P.W.7 further stated that the injured was taken to hospital in an ambulance. P.W.7 further testified that on the day prior to the Page No. 8/25 incident and on the date of the incident, she saw her son [the accused] in company of the deceased. When cross-examined, P.W.7 stated that she did not know how the deceased died or who was responsible for the death of the deceased.
16. P.W.8, Sandhiya Jajowar who is the sister-in-law of the accused, like P.W.7, deposed that the incident occurred in a night on a day in August, 2018. P.W.8 stated that at the relevant time, she was sleeping in her house along with her mother-in-law [P.W.7]. It was then the informant [since deceased] and Rohit Tanti raised shout from outside of the house and wake them up. Immediately thereafter, she [P.W.8] along with her mother-in- law [P.W.7] went to the P.O. and going there, she [P.W.8] saw the accused at the homestead of the deceased shouting and calling 'maa maa' ['mother mother']. P.W.8 noticed cut injury on the neck of the accused with blood oozing out from it. P.W.8 stated that she saw the deadbody of the deceased from a distance after arrival of the Police personnel at the P.O. In cross-examination, P.W.8 stated that she did not know how the deceased had died.
17. P.W.3, Ravi Chawtal in his testimony, stated that the house of the informant and his deceased brother, Rabi Jajowar were located near his residence. Deposing on the incident, P.W.3 stated that on the relevant day, he heard hue and cry emanating from the house of the deceased. The family members arrived at his house and informed him about the incident. On receipt of the information, P.W.3 went to the house of the deceased and saw the accused lying in the courtyard of the house of the deceased and shouting in pain because of injuries sustained on his neck. It was thereafter, Police personnel arrived at the P.O. and took the injured [the accused] to hospital for medical treatment. P.W.3 further stated that when Police personnel broke open the door of the room of the deceased, he witnessed that the deceased was lying dead in a room of his house. P.W.3 also stated that the deceased used to reside alone in his house and the accused came to the house of the deceased two days prior to the incident for stay. P.W.3 further stated that two wooden piras and a dao were seized vide two Seizure Lists, exhibited by him as Ext.-2 and Ext.-3 respectively, besides identifying his signatures appearing therein. P.W.3 also exhibited the two seized piras as Mat. Ext.-1 and the seized dao as Mat. Ext.-2. During Cross-examination, P.W.3 stated that the accused was lying and shouting in pain in the courtyard of the house of the deceased and he witnessed cut injury on the neck of the accused. P.W.3 also stated that the deceased was Page No. 9/25 in the habit of consuming liquor. P.W.3 also stated that he did not know how the deceased and the accused sustained injuries on their persons and he did not read the contents of the Seizure Lists, Ext.-2 and Ext.-3.
18. P.W.4, Augustin Barla used to know the informant [since deceased], the deceased and the accused as all of them hailed from same village. As regards the incident, P.W.4 testified to the effect that it was at around 10-00/11-00 p.m. the incident took place and at that time, he was in his house. P.W.4 stated that the house of the informant [since deceased] and the deceased were located near his residence. On the relevant day, the informant came to his [P.W.4's] house to inform that there was hue and cry in the house of the deceased and requested him [P.W.4] for going to the house of the deceased. Accordingly, P.W.4 accompanied the informant and on reaching the P.O., he [P.W.4] noticed that the accused was lying and shouting in pain in the courtyard of the house of the deceased with injuries on his neck. It was P.W.3 who informed the Police about the incident. Police personnel arrived at the P.O. after some time and took the injured [the accused] to hospital for medical treatment. P.W.4 stated that he also accompanied the injured [the accused] to the JMC&H. P.W.4 stated that when Police personnel broke open the door of the room of the deceased, he saw that the deceased was lying dead in a room of his residence. P.W.4 further stated that the deceased used to reside alone in his house and it was two days prior to the incident, the accused came to the house of the deceased for stay. Like P.W.3, P.W.4 also exhibited the Seizure List, Ext.-3 and his signature therein as Ext.-3[2]. P.W.4 also exhibited the seized dao as Mat. Ext.-2. During cross-examination, P.W.4 iterated that the accused was shouting in pain lying in the courtyard of the house of the deceased and he witnessed cut injury on the neck of the accused. P.W.4 also stated that the deceased was in the habit of consuming liquor. Like P.W.3, P.W.4 also stated that he did not how the deceased and the accused sustained injuries on their persons.
19. P.W.6, Manuel Siddik was another neighbour of the deceased and he also knew the informant [since deceased] and the accused, who was a related brother of the deceased. In his testimony, P.W.6 deposed that on the date of the incident, the accused came to the house of the deceased and stayed there. Hearing shouts of the neighborhood people, he [P.W.6] came out of his house and saw the accused lying in the courtyard of the house of the deceased with injuries on his person and blood oozing out from the injuries.
Page No. 10/25At that time, the door of the house of the deceased was found closed. In the meantime, Police personnel arrived at the P.O. and opened the door of the house. Then, P.W.6 saw that the deceased was lying dead inside his house with cut injuries on right hand and the right shoulder. P.W.6 stated that on the relevant day, none was present in the house of the deceased except the accused. P.W.6 further stated that he was present when Police personnel seized the wooden piras and one gamocha from the house of the deceased vide Seizure List, Ext.-2 wherein he put his thumb impression. In cross-examination, P.W.6 stated that he could not say if any third person had come to the house of the deceased on the relevant date.
20. From combined reading the testimony of the prosecution witnesses - P.W.3, P.W.4 and P.W.6 - together, it emerges that these three prosecution witnesses had arrived at the P.O. immediately after the prosecution witnesses - P.W.7 and P.W.8. When they arrived at the P.O., they found that the accused was lying in the courtyard of the house of the deceased and he was shouting in pain as he had sustained injuries on his neck. It has further emerged that the Police personnel arrived at the P.O. after these three prosecution witnesses - P.W.3, P.W.4 and P.W.6. It was after arrival of the Police personnel at the P.O., the accused was sent by a 108 ambulance to hospital for treatment of the injuries sustained by him. The door of the house of the deceased was opened by the Police personnel. In their testimony, P.W.3 and P.W.4 stated that the door was broke opened and it was thereafter they witnessed that the deceased was lying dead in a room inside his house. From the testimony of P.W.6 also, it has emerged that the door of the house of the deceased had to break open. It is revealed from the Sketch Map of the P.O. [Ext.-6] that there were only two rooms in the house of the deceased.
21. P.W.1, Zirimiyan Topno is a co-villager of the informant [since deceased], the deceased and the accused. P.W.1 stated that he arrived at the P.O. only in the morning on the following day. P.W.1 stated that when he arrived at the P.O., he did not find the accused there though there were Police personnel. P.W.1 had, however, stated that he noticed cut injuries on the neck and other parts of the person of the deceased when the deadbody of the deceased was kept in the Police Station. P.W.1 stated that the Police held inquest on the deadbody of the deceased and P.W.1 exhibited the Inquest Report, Ext.-1 and his signature therein as Ext.-1[1]. In cross-examination, P.W.1 stated that he did not know anything about the incident.
Page No. 11/2522. P.W.2, Samuel Topno also knew the informant [since deceased], the deceased and the accused as all of them hailed from same village. On the incident, P.W.2 stated that the incident occurred in the night hours and it was the mother of the accused [P.W.7] who telephonically informed him [P.W.2] about the incident and requested him to come to her house. P.W.2 stated that the mother of the accused [P.W.7] stated to him that the accused had done something. Accordingly, P.W.2 visited the P.O. and saw the deadbody of the deceased lying on the ground with injuries on his neck and other parts of his person. Like P.W.1, P.W.2 stated that Police personnel held inquest on the deadbody of the deceased at the P.O. in his presence. P.W.2 exhibited the Inquest Report [Ext.-2] with his signature therein as Ext.-2[1]. In cross-examination, P.W.2 stated that he did not know anything about the incident.
23. P.W.5, Matiaz Bhengra also knew the informant [since deceased], the deceased and the accused as they were his co-villagers. P.W.5 stated that he arrived at the P.O. only in the morning hours on the following day. P.W.5 stated to have witnessed the deadbody of the deceased which was lying inside a room inside the house of the deceased. P.W.5 stated that he could know from the villagers that the accused was taken to hospital for medical treatment. P.W.5 further stated that two wooden piras and one gamocha were seized from the house of the deceased vide Seizure List, Ext.-2 where he subscribed his signature as Ext.-2[2]. P.W.5 also exhibited the said two seized wooden piras as Mat. Ext.-1. In his cross-examination, P.W.5 stated that he did not have any personal knowledge about the incident and he did not read the contents of the Seizure List, Ext.-2 where he subscribed his signature.
24. From the testimonies of P.W.1, P.W.2 and P.W.5, it is revealed that they arrived at the P.O. after the accused was taken to hospital for medical treatment of his injuries. When they arrived at the P.O., they saw the deceased lying in a room inside his house with injuries on his neck and other parts on his person. Police personnel arrived at the P.O. prior to arrival of these three prosecution witnesses. When Police personnel seized the objects vide two Seizure List - Ext.-2 and Ext.-3 and held inquest proceeding, P.W.1 and P.W.2 were present at the P.O. Page No. 12/25
25. P.W.9, Nowami Jajowar is the daughter of the informant [since deceased]. The deceased was her paternal uncle and the accused was her related paternal uncle. According to P.W.9, the incident took place at around 11-00 p.m. on 19.08.2018 and she went to the P.O. after about one and half/two hours. In her testimony, P.W.9 stated that she accompanied her father [the informant, since deceased] to the house of the deceased and she noticed that the deceased was lying dead inside a room in pool of blood with cut injuries on his neck. Witnessing the deadbody, she out of fear returned back to her house. P.W.9 deposed to have noticed the accused lying in the courtyard in the house of the deceased with cut injuries on his person. P.W.9 stated that she did not know who had caused injuries on the deceased and the accused or whether any third person had committed the incident.
26. At this juncture, it appears appropriate to turn to the medical evidence which are in the form of the testimony of Autopsy Doctor [P.W.10] and the PME Report [Ext.-4]. Prior to post-mortem examination, inquest proceeding on the deadbody of the deceased was held by the Circle Officer, Titabar Revenue Circle at the P.O at around 09-00 a.m. on 20.08.2018. After completing the inquest proceeding, the Circle Officer, Titabar Revenue Circle recorded her findings in the Inquest Report [Ext.-1] wherein the informant [since deceased], P.W.1 and P.W.2 signed as witnesses. As per the Inquest Report [Ext.-1], there were cut injuries on the neck, shoulder, cheek and head of the deceased.
27. P.W.10, Dr. Ved Prakash Gupta was, on 20.08.2018, serving as Demonstrator, Department of Forensic Medicine at the JMC&H. In his testimony, P.W.10 stated that he performed post-mortem examination on the deadbody of the deceased on that day at around 12 O'clock and after performing the autopsy, he found the following :-
I. External appearance :-
1. Condition of subject stout emaciated, decomposed, etc. - : A male dead body of average built and swarthy complexion, wearing white colour ganjee with half pant. Mouth and eyes are close. Anus, penis serotenum are healthy.
Rigor mortis is present all over the body and post-mortem hyposthesis is present on back of trunk and is fixed earth materials found adherent to the body and garments at places.
Page No. 13/25Injuries -
[1] Chop wound of size 22 cm x 8 cm x trachea deep is present over upper part of left lateral portion of neck, placed horizontally the anterior end is 2 cm below the chin. Skin, soft tissues, nerves vessels [both external and internal earotids] and trachea are all cut.
[2] Chop wound of size 14 cm x 3 cm bone deep is present over left side of face, placed horizontally and is 6 cm above the injishumber.
[3] Incised wound of size 14 cm x 4 cm x muscle deep is present over front and external aspect of left shoulder joint.
[3] Incised wound of size 4 cm x 1 cm x scalp deep is present over left temporal region. Joint below left parietal emivere.
[4] Incised wound of size 3 cm x 1 cm x scalp deep is present over left parietal emivere.
[5] Incised wound of size 1 cm x 0.5 cm x muscle deep is present over mid portion of left thumb.
[6] Incised wound of size 6 cm x 0.5 cm x muscle deep is present over back of right side of chest just below right angle of scapula.
II. Cranium & spinal canal :
Scalp, skull, vertebrae - scalp : As described Skull & vertebrae : Healthy Membrane : Healthy Brain & spinal cord; Brain : Healthy, pale Spinal cord : Not examined Liver : Healthy, pale Spleen : Healthy Kidneys : Both are pale Bladder : Pale and empty
Organs of generation, extema and internal : External as described Internal : Healthy III. Thorax -
1) Walls, ribs and cartilages : All are healthy
2) Pleurae : Healthy
3) Larynx and trachea : As described
Right lung : Pale
Page No. 14/25
Left Lung : Pale
Paricardium : Healthy, pale
Heart : Healthy and chambers are empty
Vessels : Healthy
IV. Abdomen
Walls : Healthy
Peritonoum : Healthy
Mouth, pharynx & oesophagus : All are healthy
Stomach and its contents : Pale and contains partly digested food
particles
Small intestine and its contents: Pale and contains glue like materials
Large intestine and its contents: Pale and contains gaseous and feacal
matter
V. Muscles, Bones and Joints
1. Injury : As described
2. Diseases or deformity : Not detected
3. Fracture : As described
4. Dislocation : Not detected
P.W.10 reported that the death of the deceased was due to haemorragic shock as a result of the injuries sustained over the body, as described. He found all the injuries were ante-mortem in nature and were caused by sharp cutting heavy weapon. He stated that the death was homicidal in nature and approximate time since death was 8-16 hours. According to the Autopsy Doctor, P.W.10, the deceased sustained two chop wounds and five incised wounds on his person and those wounds were caused by sharp cutting weapon. P.W.10 exhibited the PME Report as Ext.-4 and his signature therein as Ext.- 4[1]. P.W.10 also identified the signature of Dr. K.C. Das, Professor & HOD, Department of Forensic Medicine, JMC&H & Police Surgeon, Jorhat, Assam in Ext.-4 as Ext.-4[2]. P.W.10 was not cross-examined by the defence.
28. The issue which has, thus, arisen is who had committed the act of homicide and whether the accused was the perpetrator of the crime. From the testimony of the prosecution witnesses - P.W.3, P.W.4, P.W.6, P.W.7 and P.W.8 - it has been established that on the Page No. 15/25 relevant day of the alleged incident, the accused was staying in the house of the deceased. It has further emerged that otherwise, the deceased used to stay alone in his two-room house. The part of the testimony of these prosecution witnesses that on the relevant night the accused was staying with the deceased was asked to the accused when he was examined under Section 313, CrPC. In reply, the accused stated that on that day, he came to the house of the deceased and they dined together. The accused further explained that as it became too late for him to return to his house, the deceased asked him to stay with him in his house. Accordingly, he slept in one of the rooms of the house of the deceased. The accused further stated that at night, the deceased went outside feeling warm. At that time, someone assaulted him [the accused] and he became unconscious. Later on, he found himself in the hospital where he came to know that the deceased was no more. He further stated that he sustained the injury on his neck and gained sense only at the ICU of the JMC&H. The accused claimed ignorance as to how the deceased sustained the injuries while stating that he also sustained injuries and was admitted in the hospital.
29. C.W.1, Dr. Nizamuddin Khan was, on 20.08.2018, posted as Registrar, ENT Department, JMC&H. It was at around 03-05 a.m. on 20.08.2018, he examined the accused and found a cut injury over anterior part of the neck exposing the arytenoids and cricoids cartilage. He had reported that the wound in layers were repaired and tracheotomy was done on the same day. C.W.1 stated that the accused was admitted in the Hospital on 20.08.2018 and was discharged on 17.09.2018. C.W.1 exhibited the Injury Report of the accused as Court Ext.-1 and his signature therein as Court Ext.-1[1]. In cross-examination, C.W.1 stated that the surgery done upon the injured was life saving and had it not been done, the patient would have succumbed to the same.
30. From the evidence of C.W.1, it is demonstrated that the nature of the injuries sustained by the accused were grievous and were caused by sharp weapon. From the testimony of the Autopsy Doctor, P.W.10 and the PME Report [Ext.-4], it can be safely concluded that the death of the deceased was homicidal one. From a cumulative analysis of the entire evidence/materials on record including the testimony of the prosecution witnesses; the explanation provided by the accused during his examination under Section 313, CrPC; and the testimony of C.W.1; the scenario which has visibly emerged is that for the night intervening 19.08.2018 and 20.08.2018, the accused was staying in the house of the Page No. 16/25 deceased. Otherwise, the deceased used to stay alone in his two-room house. From the explanation given by the accused, it is clear that in that night, he came to the house of the deceased and thereafter, both of them had dinner together. It was the version of the accused that as it became too late for him to return to his house, which is otherwise in the same village, he stayed in the house of the deceased at the request of the deceased. From the testimony of C.W.1, the accused was examined by him at the JMC&H at 03-05 a.m. on 20.08.2018. From the evidence/materials on record, it has emerged that the accused was sent from the P.O. to the JMC&H for treatment of his injuries by one 108 ambulance.
31. It is settled law that presumption of fact is a rule in law of evidence that a fact may be inferred from certain other proved facts. An inference about existence of a fact from other set of proved facts is permissible to be drawn by the courts by exercising a process of reasoning and a logical conclusion can be reached as the most probable position. In the process, the courts can have due regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. The principle embodied in Section 106 of the Evidence Act can also be utilized in an appropriate case along with the rule of evidence provided in Section 114 of the Evidence Act. In State of West Bengal vs. Mir Mohammad Omar and others, reported in [2000] 8 SCC 382, the Hon'ble Supreme Court has considered the interplay between the rules embodied in Section 106 and Section 114 of the Evidence Act and has observed in the following manner :-
31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
32. ...... when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the Page No. 17/25 existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this.
33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
The above principle is also applied in Tulshiram Sahadu Suryawanshi vs. State of Maharashtra, [2012] 10 SCC 373.
32. If the distance between the P.O. at Village - Chereli Gohain Gaon under Borholla Police Station and the JMC&H is considered, it might have taken at least one hour to take the injured [the accused] from the P.O. to the JMC&H. In such scenario, it can be safely presumed that the accused was taken by the 108 ambulance from the P.O. at around 02- 00 a.m. The I.O. [P.W.14] had testified that he received a telephonic information from VDP personnel to the effect that some unknown persons had assaulted one person at Village - Chereli Gohain Gaon and they had already called for 108 ambulance to shift the injured to hospital for medical treatment. The I.O. [P.W.14] further testified that on receipt of the said information, he entered the information in the General Diary of Borholla Police Station as General Diary Entry no. 281 dated 19.08.2018. The I.O. [P.W.14] further stated that after entering the General Diary Entry no. 281 dated 19.08.2018, he immediately went to the P.O. Such visit of the I.O. [P.W.14] and other Police personnel to the P.O. on the night intervening 19.08.2018 and 20.08.2018 Page No. 18/25 received corroboration from the testimony of other prosecution witnesses, who arrived at the P.O. immediately after the occurrence. There is no legal proposition that the evidence of a Police official is not to be accepted and is to be discarded, if not supported by independent witness. From such testimony of I.O. [P.W.14] and the General Diary Entry no. 281 registered on 19.08.2024, it has clearly emerged that the 108 ambulance was called on 19.08.2018, meaning thereby, prior to 12 O'clock on the night intervening 19.08.2018 and 20.08.2018 and the same has clearly established the fact that the incident wherein the deceased and the accused sustained injuries occurred prior to 12 O'clock on the night intervening 19.08.2018 and 20.08.2018. On the other hand, P.W.9 testified to the effect that the incident occurred at around 11-00 p.m. on 19.08.2018. At the cost of repetition, it may be mentioned that the accused himself had stated that in that night, he and the deceased dined together and it became too late thereafter, for him to return to his house. When these facts are considered together, it emerges that the incident wherein both the deceased and the accused sustained the injuries, mentioned above, occurred prior to 12 O'clock on the night intervening 19.08.2018 and 20.08.2018. Therefore, the time-gap between the point of time when the deceased and the accused went to sleep after having dinner together in the house of the deceased and when the deceased was found dead inside a room of his two-room house with the door closed from outside was small and in fact, the occurrence of the said two events were in close proximity to each other.
33. In the above fact situation, the circumstance of last seen together, which is a facet in a case resting on circumstantial evidence, can be appropriately referred to. From the principle laid down by the courts in a long line of decisions, circumstance of last seen together would normally be taken into consideration for identifying the guilt or otherwise of an accused in a case based on circumstantial evidence when it is established by the prosecution that the time-gap between the point of time when the accused and the deceased were seen together with the deceased alive and when the deceased was found to have met homicidal death is so small that possibility of any person other than the accused being with the deceased can be completely ruled out. There is, however, no standard parameter for the duration of time-gap and it depends upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, meaning thereby, if the prosecution is able to lead evidence that likelihood of any person other than the accused being the author of the crime, becomes Page No. 19/25 impossible, then the evidence of circumstance of last seen together can be considered as one strong circumstances in the chain of circumstances to prove the guilt against such accused person. In other words, if it is found out that the accused was at the place where the incident had occurred or where the accused was last seen together with the deceased alive and there was no possibility of presence of any third person, then it becomes a strong circumstance in a case resting on circumstantial evidence.
34. At this juncture, we also find appropriate to refer to the principle governing the applicability of Section 106 of the Evidence Act. As per Section 106 of the Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is true that the ordinary rule that applies in a criminal trial is that the burden always lies on the prosecution to bring home the charge against the accused and the said rule is embodied in Section 101 of the Evidence Act. Section 106 of the Evidence Act is treated as an exception to Section 101 of the Evidence Act. The rule of evidence embodied in Section 106 of the Evidence Act is applicable in certain exceptional cases in which it is impossible or becomes extremely difficult for the prosecution to establish the facts which are especially within the knowledge of the accused and which an accused can prove without difficulty or inconvenience.
35. In Trimukh Maroti Kirkan vs. State of Maharashtra, reported [2006] 10 SCC 681, the Hon'ble Supreme Court while considering a case of homicidal death in the confinement of the house, has observed that if an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the Courts. A criminal trial is not presided over merely to see that no innocent man is punished and it is also presided over to see that a guilty man does not escape. It has further been held that the law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish Page No. 20/25 the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there is a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
36. The purpose of examination of an accused under Section 313, CrPC is to provide the accused a reasonable opportunity to explain the adverse circumstances which have emerged against him during the trial. It is settled law that the statement made by the accused under Section 313, CrPC can be used by the court to the extent it is in line with the case of the prosecution. Such statement, as not made on oath, does not qualify as a piece of evidence under Section 3 of the Evidence Act but the inculpatory aspect which emerges from the statement may be used to lend credence to the case of the prosecution and they can be used to examine the veracity of the prosecution case. When keeping the above parameters into consideration, the evidence led by the prosecution is considered in the facts and circumstances obtaining in the case in hand, we are of the considered view that the prosecution has been able to lead satisfactory evidence on all the aspects, possible for it, to establish that the accused on the relevant night of the incident was in the company of the deceased inside the house of the deceased wherein the deceased sustained the injuries of the nature, mentioned hereinabove. There is no manner of doubt that the prosecution witnesses - P.W.3 P.W.4 and P.W.6 - are independent witnesses. The defence did not elicit anything from these prosecution witnesses to show that these prosecution witnesses were adversely disposed towards the injured. Their testimony are well corroborated by the testimony of the prosecution witnesses, P.W.7 and P.W.8, who are closely related to the deceased and the accused, for that matter, more closely related to the accused than the deceased. P.W.7 is the mother of the accused. From the testimony of these prosecution witnesses, it has emerged that the deceased was found lying with injuries inside a room of his own house and at the same time, the accused was found lying with an injury on the neck in the courtyard outside the house of the deceased. These prosecution witnesses had also testified that the door of the house was found closed from outside. P.W.11, Kabita Kakati Konwar, the Circle Officer who at the P.O. conducted the inquest proceeding on the Page No. 21/25 deadbody of the deceased, deposed to the effect that the door of the house was tied by some rope like substance. The said fact was elicited by the defence during cross- examination of P.W.11.
37. We now turn again to the explanation provided by the accused during his examination under Section 313, CrPC. The accused stated that on the relevant day, he came to the house of the deceased and they dined together. As by that time it became too late for him to return home and the deceased requested him to stay in his house, he [the accused] stayed in the house of the deceased in one of the rooms in the two-room house of the deceased. The accused further stated that at night, the deceased went outside feeling warm and at that time, someone assaulted him [the accused] and he became unconscious. Later on, he [the accused] came to know at hospital that the deceased had already died. It is true that the accused had sustained an injury on his neck in the night of the incident, as testified by the prosecution witnesses and C.W.1, and as demonstrated by the Injury Case Report [Ext.-8]. The accused did not provide any explanation on the point when he was assaulted inside the house of the accused how he was found lying in the courtyard of the house of the deceased. The accused had replied that he after being assaulted, became unconscious. The said explanation of the accused is contrary to the testimony of the prosecution witnesses - P.W.3, P.W.4, P.W.6, P.W.7 and P.W.8, who testified categorically that when they reached the P.O. almost immediately after the occurrence they found that the accused was found lying in the courtyard of the house of the deceased with an injury on his neck and he was found shouting. The reply of the accused regarding his loss of consciousness turns out to be a false one in the face of the reliable and credible contrary evidence that he was found shouting in the courtyard of the house of the deceased. The accused did not also provide any explanation as to how the deceased was found lying inside his room with so many brutal injuries on his person when, according to the accused, the deceased went out of his room feeling warm; and as to how the door of the house of the deceased was found closed from outside. The explanation provided by the accused, thus, turns out to be not a truthful one and it is clear that the accused withhold information which was especially within his knowledge.
38. In the above fact situation obtaining in the case, it was expected from the accused to render proper explanation for the injury sustained by him as well as for the injuries Page No. 22/25 sustained by the deceased; and also for the fact that why the door of the house of the deceased was found closed from outside. The accused was found opting to provide no explanation as regards the injuries sustained by the deceased and had opted to name no one for the injury sustained by him. It is a settled proposition that if the accused gives incorrect or false answers during the course of his statement under Section 313, CrPC, the court can draw an adverse inference against him. Failure on the part of the accused to give an explanation or giving of a false explanation is to be treated as an additional circumstance against the accused. In such fact situation, as obtaining in the case, such a false answer can also be counted as a link for completing the chain.
39. In the above facts and circumstances obtaining in the case in hand, the matter of not giving a proper explanation or of giving a false explanation is of considerable relevance and pertinence. In this connection, the following observations made in the three-Judge decision in Deonandan Mishra vs. the State of Bihar, AIR 1955 SC 801, made in the backdrop of failure on the part of the accused to offer any explanation for circumstances appearing in evidence against him in a case resting on circumstantial evidence, can be appropriately referred to :-
9. ...... It is true that in a case of circumstantial evidence not only, should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved would afford a reasonable basis, for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain.
39.1. In Kalu @ Laxminarayan vs. State of Madhya Pradesh, [2019] 10 SCC 211, after a discussion on the rule of evidence embodied in Section 106 of the Evidence Act and the Page No. 23/25 failure to offer any explanation by the accused, the following observations have been made :-
16. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.
39.2. In Wazir Khan vs. State of Uttarakhand, [2023] 8 SCC 597, the Hon'ble Supreme Court has, in a similar situation like the case on hand, has observed in the following manner :-
24. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show, like in the present case, that shortly before the commission of the crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not dispute his presence at home at the relevant time and does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.
40. It is true that in a case like murder, non-explanation of the injuries sustained by the accused at about the time of the occurrence is considered to be an important circumstance from which an inference, adverse to the prosecution, can be drawn. However, there may be cases where non-explanation of the injuries by the prosecution may not affect the prosecution case. The second principle applies to cases where the Page No. 24/25 evidence is so clear and cogent, independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [Ref : Lakshmi Singh and others vs. State of Bihar, [1976] 4 SCC 394]. After giving our anxious consideration, we find that the present one is a case where the second proposition is found applicable with all force. Such view of ours also stems from the fact that the accused did not provide any explanation whatsoever as to how the deceased had sustained so many grievous injuries on his person prior to his death.
41. It needs to be kept in mind that motive is a matter which is primarily known to the accused and at times, it becomes difficult or impossible for the prosecution to explain the motive by substantive evidence. In a case relating to circumstantial evidence motive assumes importance but just on the ground that the prosecution has failed to prove the motive the entire prosecution story, resting on circumstantial evidence, if it is pointing convincingly towards the accused as the author of the crime, cannot be dislodged. Mere absence of proof of motive cannot be a ground suggestive of innocence of an accused if the involvement of the accused is otherwise convincingly established.
42. Having considered all the evidence/materials on record in its entirety, we find ourselves reaching at an unhesitant view that the prosecution has been able to prove all the circumstances by reliable and credible evidence pointing towards the accused as the assailant and non-explanation on the part of the accused as regards the injuries sustained by the deceased and the injury sustained by him; and his false explanation as regards the entire incident of assault leading to the homicidal death of the deceased; have completed chain of circumstances to indicate that only he was responsible for commission of the crime of murder. As a result, we find no reason to arrive at a view other than the view reached by the learned trial court as regards the guilt of the accused and, thus, find no reason to interfere with the Judgment and Order of conviction and sentence passed by the learned trial court against the accused-appellant. As a result, the appeal is found not merited. Consequently, we affirm the Judgment and Order dated 04.02.2021 of conviction and sentence passed the learned trial court. The present appeal is accordingly, dismissed.
Page No. 25/2543. We reiterate the direction given by the learned trial court as regards disbursement of adequate compensation to the family members left behind by the deceased in terms of the provisions contained in Section 357A, CrPC and the extant Victim Compensation Scheme, 2012 framed thereunder.
44. Before parting with the record, we wish to place our appreciation on record as regards the service rendered by Ms. M. Barman, learned Amicus Curiae appearing for the accused- appellant and direct the Registry to make available to her just remuneration as per the notified fee structure applicable to the Amicus Curiae.
45. The records of the trial court are to be sent back forthwith.
JUDGE JUDGE
Comparing Assistant