Gauhati High Court
CRL.A(J)/61/2022 on 19 June, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/53
GAHC010106462022
2025:GAU-AS:8814-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.App.[J]. NO. 61/2022
Binu Mahato
.........Appellant
-VERSUS-
The State of Assam
...................Respondent
Advocates :
Appellant : Mr. A. Dhar, Amicus Curiae
Mr. N. Hassan, Advocate
Respondent : Ms. A. Begum,
Additional Public Prosecutor, Assam
Date of Hearing, Judgment & Order : 19.06.2025
Page No.# 2/53
:: BEFORE ::
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER
[M. Choudhury, J]
1. This criminal appeal from Jail under Section 383, Code of Criminal Procedure, 1973 ['the Code' or 'the CrPC', for short] is directed against a Judgment and Order dated 19.05.2016 passed by the Court of learned Sessions Judge, Tinsukia at Tinsukia in Sessions Case no. 46[T]/2010.
2. The two accused persons, namely, [i] Binu Mahato [the present accused- appellant] and [ii] Mania Munda faced the trial in Sessions Case no. 46[T]/2010 for charges framed for the offences under Section 448 and Section 302, read with Section 34, of the Indian Penal Code [IPC]. On conclusion of the trial, the Court of learned Sessions Judge, Tinsukia found both the accused persons guilty of the offence under Section 302, IPC read with Section 34, IPC. The accused persons were acquitted from the charge under Section 448, IPC read with Section 34, IPC on the ground that the said charge was not proved. For finding them guilty for the offences under Section 302, IPC read with Section 34, IPC, the two accused persons including the present appellant, have been sentenced to undergo rigorous imprisonment for life each and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to undergo rigorous imprisonment for six months each. It has been ordered that the period of detention already undergone by the accused persons shall be set-off from the period of Page No.# 3/53 imprisonment in terms of Section 428, CrPC.
3. The First Information Report [FIR] was lodged before the Officer In- Charge, Tinsukia Sadar Police Station on 09.01.2008 by one Dilip Sonowal [P.W.1] stating about an incident which occurred in the house of one Dalima Dutta at Bordoloi Nagar, Tinsukia at around 02-30 p.m. on 09.01.2008. In the FIR, the informant - P.W.1 had inter alia mentioned that at around 02-30 p.m. on 09.01.2008, he came to learn telephonically from neighbours of Dalima Dutta, who was his elder sister, that an untoward incident had taken place in her house. Then, the informant went to the house of Dalima Dutta immediately from his office and going there, he saw a gathering of neighbours of his sister in front of the house of his sister. He saw his elder sister, Dalima Dutta lying in a pool of blood in the verandah of her house. The informant had then taken Dalima Dutta to Tinsukia Civil Hospital, with the assistance of neighbours, wherein she was given preliminary treatment. The doctors at Tinsukia Civil Hospital then referred her to Brahmaputra Nursing Home, Dibrugarh for better treatment. In the meantime, he received information that Dalima Dutta had already breathed her last. The informant stated that a housemaid by the name of Arati used to do cleaning works in the house of his elder sister from 06-00 a.m. to 08-00 a.m., that is, before Dalima Dutta used to go to school. The informant stated that as per the versions of the neighbours, they saw the housemaid in the verandah of the house of the deceased at the time of the incident and he suspected her involvement in the incident.
4. The FIR was received at the place of occurrence [P.O.] itself, that is, the house of the deceased on 09.01.2008 and the same stood forwarded to the Page No.# 4/53 Tinsukia Police Station for registration of a case under proper sections of law. Sashidhar Pasani [P.W.27], the Officer In-Charge of Tinsukia Police Station, had in the meantime, started investigation into the case as its Investigating Officer [I.O.]. On receipt of the FIR, the same was registered as Tinsukia Police Station Case no. 25/2008 under Section 448 and Section 302 of the IPC on 09.01.2008.
5. During the course of investigation, the I.O. suspecting that four accused persons, namely, [i] Arati Tanti, [ii] Ganesh Tanti; [iii] Binu Mahato @ Binoy [the present appellant]; and [iv] Mania Munda; were behind the commission of murder of Dalima Dutta, arrested them. In the course of investigation, the I.O. recorded statements of a nos. of witnesses under Section 161, CrPC. Inquest on the deadbody of the deceased was conducted at Brahmaputra Diagnostic and Hospital, Dibrugarh on 10.01.2008 by an Executive Magistrate-cum-Circle Officer, East Dibrugarh Revenue Circle and an Inquest Report [Ext.-2] was prepared recording findings. The Executive Magistrate in order to ascertain the actual cause of death, observed in the Inquest Report [Ext.-2] that the deadbody should be sent for Post-Mortem examination. The Post-Mortem Examination on the deadbody of the deceased was performed at the Assam Medical College and Hospital [AMCH] on 10.01.2008 and the Autopsy Doctor after performing Post-Mortem Examination, recorded his findings in a Post- Mortem Examination Report [Ext.-12].
6. In the course of investigation, the I.O. made a nos. of seizures vide Seizure Lists, Ext.-3 to Ext.-8, Ext.-10 and Ext.-13. By the said Seizure Lists, the following articles/objects were seized :-
Page No.# 5/53 Exhibits Articles Seized Date of Seizure [i] One yellow colour sari, one cut mark in the saree, having suspected blood stain [ii] One woolen shawl having 4 nos of stain, the saree are Ext.-3 side blow, all are of cm side, maroon colour length, 5.6" 16.01.2008 breadth 2.5' [iii] One blue woolen sweater [ladies] having suspected blood stain on the left hand and back side One C.D. Destiny extra portion layer multi speed. 700 Ext.-4 MB. 80 min. recorded in the CD about the action play 18.01.2008 shown by Arati Tanti at the P.O. One flower printed nighty belonging to deceased Dalima Ext.-5 Dutta. Blood stain present in the nighty marked S.L. 1 to 7 10.01.2008 [green, yellow & white printed] One pair of hawai chappal, old white and blue, right side Ext.-6 09.01.2008 chappal is torn on the top head One sample packets contain suspected blood stain from Ext.-7 the bath room which was on the tiles and collected in a 09.01.2008 cotton and served it by polathin and rubber with paper One iron hammer with bamboo butt. The hammer's long Ext.-8 09.01.2008 about 4" bamboo lead - [Nal] about 14" [fourteen] One light blue half sporting ganji without collar. Having Ext.-10 11.01.2008 some suspected blood like stain front side and back side [i] One dao [iron] long with the bath [wooden] 20" from ring to head 12½", breadth of the dao 2½" having blood stain and hairs on the dao.
Ext.-13 09.01.2008
[ii] Some broken pieces of glass.
[iii] one pair of chappal, left side chappal is having blood stain.
7. The I.O. got the statement of one witness, Rebika Das [P.W.16] recorded under Section 164, CrPC on 17.01.2008 before the learned Judicial Magistrate, Tinsukia. The Sketch Map of the P.O. [Ext.-14] was also prepared by the I.O.
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8. The following material objects, seized by the afore-stated Seizure Lists, were forwarded by the I.O. to the Forensic Science Laboratory [FSL], Assam at Guwahati for serological examination :-
Exhibits Details
Exh. No. Marked as "A". Blood sample of deceased taken by Dr. M. Kakoty
having suspected stain of blood. MR NO. 47/08.
Exh. No. Marked as "B". MR No. 4/08. One dao having blood stain suspected to contain stain of blood. Total length app. 51 cm and its blade 6 cm and breadth 520 cm.
Exh. No. "C" MR NO 5/08. One flowery yellow white multi coloured nighty having stain of suspected blood.
Exh. No. "D' MR NO 9/08. One light blue coloured half sport ganjee having stain of suspected blood.
Exh. No. Marked as "E" MR NO. 16/08. One yellow coloured woolen saree suspected to having stain of blood Exh. No. Marked as "F" MR NO. 16/08. One red and green coloured wooden shawl suspected to having stain of blood.
Exh. No. Marked as "G" MR NO. 16/08. One blue coloured woolen sweater [ladies] having stain of blood.
9. The Forensic Expert forwarded his opinion vide a Report dated 26.02.2008 [Ext.-15]. After completing the investigation into the case, Tinsukia Police Station Case no. 25/2008 [corresponding G.R. Case no. 44/2008], the I.O. [P.W.27] submitted a charge sheet under Section 173[2], CrPC vide Charge Sheet no. 241/2008 on 30.06.2008 finding a prima facie case against all the four accused persons for commission of the offences under Section 448, IPC and Section 302, IPC read with Section 34, IPC.
10. When the Court of learned Chief Judicial Magistrate, Tinsukia sought appearance of the four charge-sheeted accused persons after submission of the Page No.# 7/53 Charge-Sheet, only two accused persons, namely, Mania Munda and Binu Mahato [hereinafter also referred to as 'the appellant', at places, for easy reference] appeared before it on receipt of summons on 07.04.2010. The learned Chief Judicial Magistrate, Tinsukia complied with the formalities as per Section 207, CrPC. As the offence under Section 302, IPC is exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Tinsukia committed the case records of G.R. Case no. 44/2008 by a Commitment Order dated 07.04.2010 to the Court of Sessions, Tinsukia for trial. The learned Additional Public Prosecutor was notified accordingly. As the said two charge- sheeted accused persons were on bail, they were allowed to remain on bail with a direction to them to appear before the Court of Sessions on 07.05.2010.
11. On receipt of the case records of G.R. Case no. 44/2008, the Court of Sessions, Tinsukia ['the Trial Court', for short] registered the same as Sessions Case no. 46[T]/2010. Though the Trial Court sought to secure the appearance of the other two charge-sheeted accused persons, Arati Tanti and Ganesh Tanti, they could not be traced out during the trial and the Trial Court ordered to file the case against them after execution of proclamation and attachment order. As the two accused persons Mania Munda and Binu Mahato appeared before the Trial Court, the Trial Court on 31.05.2010 after hearing the learned counsel for the parties; and upon perusal of the materials on record; framed charges under [i] Section 302, IPC read with Section 34, IPC and [ii] Section 448, IPC read with Section 34, IPC; against them while observing that the other two accused persons were absconding. When the charges were read over and explained to the two accused persons, they pleaded not guilty and claimed to be tried.
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12. During the course of the trial, the prosecution side examined the following thirty nos. of prosecution witnesses; and exhibited the following eighteen nos. of documents as documentary evidences and six nos. of material exhibits to bring home the charges against the two accused persons facing the trial :-
Prosecution witnesses P.W.1 Sri Dilip Kr. Sonowal P.W.2 Sri Rajit Dutta P.W.3 Smti Kamini Baruah P.W.4 Smti Pampi Dutta P.W.5 Dr. Puspadhar Chamua P.W.6 Sri Ajit Dutta P.W.7 Smti Bijoya Dutta P.W.8 Smti Malabika Dutta P.W.9 Sri Saiman Das P.W.10 Sri Samar Sekhar Dutta P.W.11 Smti Aruna Dutta P.W.12 Sri Bolo Neog P.W.13 Smti Chunumoni Neog P.W.14 Sri Bhadra Borsaikia P.W.15 Sri Prasanta Gogoi P.W.16 Smti Rebika Das @ Laxmi P.W.17 Md. Julhas Rahman P.W.18 Smti Rosy Bordoloi P.W.19 Sri Santanu Baruah P.W.20 Sri Jayanta Gogoi P.W.21 Smti Jutika Saikia P.W.22 Md. Ahid Ullah P.W.23 Dr. Mridul Gogoi P.W.24 Sri Sunil Gohain P.W.25 Sri Dibyajyoti Mahanta P.W.26 Dr. Netramoni Kakati Page No.# 9/53 P.W.27 Sri Sashidhar Pachani P.W.28 Sri Priyadhar Handique P.W.29 Smti Luna Sonowal P.W.30 Sri Dhojen Buragohain Prosecution Exhibits Ext.-1 Ejahar Ext.-2 Inquest report Ext.-3 Seizure list Ext.-4 Another seizure list Ext.-5 Another seizure list Ext.-6 Another seizure list Ext.-7 Another seizure list Ext.-8 Another seizure list Ext.-9 Statement of PW16 Ext.-10 Another seizure list Ext.-11 Medical Examination Report Ext.-12 Postmortem Report Ext.-13 Photocopy of another seizure list Ext.-14 Sketch map Ext.-15 FSL Report Ext.-16 Report of Finger Print Expert Ext.-17 Certified copy of GDE No. 335 dated 09.01.2008 Ext.-18 Charge-sheet M.Ext.-1 Dao M.Ext.-2 Sandal M.Ext.-3 Hammer M.Ext.-4 C.D. M.Ext.-5 Collarless sporting M.Ext.-6 Broken piece of glass Court Witness CW1 Sri Ajay Kr. Das
13. After closure of evidence from the prosecution side, the two accused Page No.# 10/53 persons were examined under Section 313[1][b], CrPC by placing the incriminating circumstances appearing against them in the prosecution evidence. When the accused persons were asked whether they would adduce evidence in their support, they declined to do so. One more witness was examined as a Court Witness [C.W.1]. After hearing the learned counsel for the parties at the argument stage and upon evaluation of the evidence/materials on record; the Trial Court proceeded to deliver the verdict of guilt against the two accused persons including the appellant, by the Judgment and Order of conviction and sentence, mentioned hereinabove.
14. We have heard Mr. A. Dhar, learned Amicus Curiae along with Mr. N. Hassan, learned counsel for the appellant; and Ms. A. Begum, learned Additional Public Prosecutor for the respondent State.
15. It is submitted on behalf of the appellant that the other convicted accused persons, namely, Mania Munda had preferred an appeal, Crl.App.[J] no. 53/2016 and the said criminal appeal has already been disposed of by a Judgment and Order dated 11.12.2019. It is submitted that Crl.App.[J] no. 53/2016 has been allowed by a coordinate bench of this Court. It has been projected that both the accused persons who faced the trial and convicted by the Trial Court, were similarly circumstanced and therefore, the evidence led in respect of both of them are same. Therefore, the principle of parity would be applicable in the case of the present accused-appellant.
15.1. It has been highlighted that it was the appellant who had gone to the house of the prosecution witnesses, P.W.9 & P.W.16 on the date of the incident Page No.# 11/53 to inform them about the injured condition of Dalima Dutta, who had allegedly sustained injuries on her person inside her house. It is submitted that it was P.W.9 & P.W.16 who came to the P.O. at first and the other prosecution witnesses had arrived at the P.O. subsequently. Thus, the testimonies of P.W.9 & P.W.16 are to be given more importance than the testimony of other post- occurrence prosecution witnesses.
15.2. It is submitted that some of the prosecution witnesses were close relatives of the deceased and there were embellishment and improvements in their testimony. In so far as the evidence against the present appellant is concerned, it is submitted on behalf of the appellant that serological test gave negative report as regards presence of bloodstains on the wearing apparels of the appellant. All the incriminating circumstances point towards the two absconding accused persons. There is lack of evidence to bring in the applicability of Section 34, IPC as there was no common intention. It is further submitted that the presence of the appellant at the P.O. even after commission of the offence is a circumstance which weighs in favour of the appellant as he assisted in breaking the door of the house, which was locked from inside, to rescue the deceased who was then in an injured condition. Even the evidence regarding seizure of hammer is also doubtful.
16. Ms. Begum, learned Additional Public Prosecutor appearing for the State has submitted that none of the contentions advanced on behalf of the appellant can be given favourable consideration. It has been established from the evidence on record that the appellant was present inside the compound of the house from a point of time anterior to the incident of assault on Dalima Dutta. It Page No.# 12/53 has come on record that the appellant along with the other accused person, Mania Munda were employed by the deceased to do some masonry works in her house. Moreover, one of the two absconding accused persons, had pointed towards the involvement of the appellant in the act of assault on the deceased.
16.1. The learned Additional Public Prosecutor has submitted that the medical evidence has clearly established that the deceased met a homicidal death due to a number of injuries inflicted on her person by sharp weapons of assault like dao, etc. Pointing towards the statement given by the appellant during his examination under Section 313[1][b], CrPC, Ms. Begum has sought to distinguish the plea taken by the appellant from the plea taken by the other convicted accused person, Mania Munda who was later on acquitted by the appellate court, at the stage of examination under Section 313[1][b], CrPC. From the circumstance established, according to Ms. Begum, by the prosecution the inference was clearly drawable against the appellant as one of the perpetrators of the crime and as such, the appellant clearly owed an explanation under Section 106 of the Evidence Act. But, the appellant failed to provide an explanation, must less plausible explanation, and as such, the chain of circumstances was complete to draw an irresistible conclusion that it was none other than the appellant, who had participated in the crime. Ms. Begum has further contended that the principle of parity would not be applicable in the case of the appellant.
17. We have given due consideration at the submissions advanced by the learned counsel for the parties and have also gone through the evidence/materials on record including the testimonies of the prosecution Page No.# 13/53 witness and the documentary evidence led in Sessions Case no. 46[T]/2010.
18. There is no dispute to the fact that the deceased was serving as a teacher in a School in Tinsukia and she used to reside in her own house, an RCC building, located at Bordoloi Nagar, Tinsukia. At the time of the incident, the deceased had her husband, one daughter [P.W.4] and one son [P.W.10]. While the husband of the deceased used to reside at Dumduma at the relevant point of time, the daughter of the deceased was at Guwahati on 09.01.2008. The son of the deceased [P.W.10] was at Chennai on 09.01.2008. All three of them had reached Tinsukia only on the next day or thereafter. Though the I.O. recorded the statement of the husband on 10.01.2008, the I.O. [P.W.27] testified that the husband of the deceased expired subsequently and due to his demise, he could not be brought as a witness during the trial.
19. The informant-P.W.1 was a brother-in-law of the deceased. P.W.2 and P.W.6 were younger brothers of the deceased. P.W.7, P.W.8 & P.W.11 were younger sisters of the deceased. P.W.20 was another brother-in-law of the deceased and is the husband of P.W.8. P.W.29 was a niece of the deceased. These prosecution witnesses had arrived at the P.O. after receiving information about the incident from others.
20. The prosecution witnesses - P.W.3, P.W.5, P.W.9, P.W.16, P.W.18, P.W.19 & P.W.21 - were neighbours of the deceased and are inhabitants of Bordoloi Nagar, Tinsukia. The prosecution witness, P.W.12 was a witness to the seizure, who gave his signature in the Seizure List [Ext.-3] and this witness was declared hostile by the prosecution. The prosecution witness - P.W.13 & P.W.14 and Page No.# 14/53 P.W.15 - were witnesses of seizure of various articles. P.W.17 was the then Secretary of Village Defence Party of Guijan Market area, who gave his signature in a Seizure List [Ext.-10]. P.W.22 was a Constable [Traffic] who accompanied the I.O. to the P.O. and was a witness to a Seizure List [Ext.-14] whereby a Compact Disc [CD] was seized. P.W.23 was serving as a Medical & Health Officer at Tinsukia Civil Hospital on 09.01.2008. He examined Dalima Dutta who was brought before him on 09.01.2008 in an injured condition. P.W.25 was a photographer in the CID who prepared the CD [Mat. Ext.-4] seized vide Ext.-4, Seizure List. P.W.26 was serving as a Demonstrator in the Department of Forensic Science at Silchar Medical College & Hospital [SMCH] and he performed the Post-Mortem Examination on the deadbody of the deceased on 10.01.2008. P.W.27 was the I.O. P.W.28 was a Police Constable and he was a witness in the Seizure List, Ext.-4 whereby the CD [Mat. Ext.-4] was seized. P.W.30 was a Dog Master of a sniffer dog in the CID and serving in the DEF, Dibrugarh at the relevant time.
21. Ajay Kr. Das, a Sub-Inspector of Police attached to Tinsukia Police Station deposed as C.W.1 to exhibit an entry, General Diary Entry no. 335/2008 recorded at 02-45 p.m. in the General Diary of Tinsukia Police Station. From the testimony of C.W.1, it has emerged that at 02-45 p.m. one Dr. M.K. Baruah telephonically informed at the Police Station that near the house of one L.N. Borkataky, Advocate, some miscreants had inflicted cut injuries on a lady and she was lying at the spot. On receipt of this information, General Diary Entry was made and a team of Police personnel led by the Officer In-Charge of Tinsukia & the I.O. [P.W.27] proceeded to the P.O. The General Diary Book of Tinsukia Police Station was exhibited as Mat. Ext.-1 and the General Diary Entry Page No.# 15/53 no. 335 dated 09.01.2008 was exhibited as Mat. Ext.-1[1].
22. From the testimonies of the prosecution witnesses, it is found out that the prosecution witnesses, P.W.9 and P.W.16 received the information regarding the alleged assault on the deceased at first. Therefore, it appears apt to examine their testimonies at first. P.W.9 and P.W.16 are the husband and the wife and their house was located nearby the house of the deceased.
23. In his evidence-in-chief, P.W.9 deposed that he was in his house at the time and date of the incident and at that time, masons were working in the house of Dalima Dutta. One mason working in the house of Dalima Dutta drew his attention by shaking the gate of his house and informed him that Dalima Dutta had a fall. On being so informed by the mason, he came out of his house and reached the front of the house of Dalima Dutta. He found presence of other persons also there. Reaching there, P.W.9 found that the front door of the house of Dalima Dutta was closed from inside. Then, seeing that blood was flowing under the door he tried to open the door. In order to break open the door, he asked the appellant who had gone to inform them, to bring a crowbar. The appellant then brought a crowbar and handed it over to P.W.9. P.W.9 stated that he opened the door by hitting with the crowbar. After breaking open the door, he found that Dalima Dutta was lying in a pool of blood near the door with cut injuries on her head, face, nose and other parts of her body. She was alive at that time and seeing them, she tried to stand up and managed to drag herself out to the verandah. P.W.9 stated that when he enquired, Dalima Dutta replied that she had been assaulted. But she could not utter anything more. The brother-in-law of Dalima Dutta and some other persons arrived at the P.O. Page No.# 16/53 Thereafter and it was decided to take the injured to hospital. P.W.9 testified to have seen Arati Tanti, the housemaid who was then working in the house of Dalima Dutta, there and when Arati Tanti was asked wherefrom she had come out, she had replied that she had come to see Dalima Dutta. P.W.9 stated that Arati Tanti had a bag in her hands at that point of time. Later on, they could not find Arati Tanti at the place. P.W.9 further stated that a hammer and a dao were found inside the house of the deceased. Police personnel went to the house of Arati Tanti and made seizure of clothes from her house wherein he gave his signature. According to P.W.9, blood stained footprints of Arati Tanti were found inside the house.
23.1. During cross-examination, P.W.9 stated that he did not know the names of the masons and he saw four-five masons working in the house of the deceased. He stated that his house was situated at the right side boundary of the house of the deceased. P.W.9 reiterated that when he arrived at the P.O., he found the doors and windows of the house of the deceased closed.
24. P.W.16 is the wife of P.W.9 and she had earlier gave her statement under Section 164, CrPC which she exhibited as Ext.-9 with her signatures therein. In her testimony, P.W.16 stated that at around 01-00/01-30 p.m. on the date of the incident on January, 2008, one mason working in the house of Dalima Dutta came to their house and made sounds on the iron gate of their house pleading them to come out as something had happened to Dalima Dutta. Then, she along with her husband, P.W.9 went to the house of Dalima Dutta and going there, her husband, P.W.9 tried to open the front door of the house of Dalima Dutta as the door was kept locked from inside. Initially, her husband could not Page No.# 17/53 open the door. But later on, with a crowbar, handed over to her husband, her husband opened the door. On breaking open the door, Dalima Dutta was found lying in a pool of blood near the door and Dalima Dutta asked her to give water. P.W.16 stated that after some time, the family members of Dalima Dutta arrived at the P.O. and took injured Dalima Dutta to hospital. P.W.16 further stated that after opening the door by her husband and other persons, she saw the housemaid of the house in the corner of the verandah with a bag in her hand. When Arati Tanti was asked by her as regards Dalima Dutta, Arati Tanti suddenly left the place. P.W.16 like P.W.9, stated that when Dalima Dutta was asked as regards the incident, she replied that she had been assaulted. P.W.16 further stated that at the time of occurrence, construction works were going on, on the first floor of the house of Dalima Dutta.
24.1. When cross-examined, P.W.16 stated that there was a door on the grill in the front verandah and the door used to remain close. She denied the suggestion that she had deposed falsely that she saw the two accused persons working as masons in the house of Dalima Dutta.
25. From the testimony of P.W.1, it can be noticed that he arrived at the P.O. after being informed about the incident telephonically. When he reached the P.O, he found his elder sister, Dalima Dutta lying in the verandah of her house in a pool of blood with injuries on her face, hands, etc. Though Dalima Dutta was alive at that point of time, she was not in a condition to speak. It was with the assistance of P.W.6 and P.W.20, Dalima Dutta was put in his vehicle and he then took her to Tinsukia Civil Hospital at first. After preliminary treatment at Tinsukia Civil Hospital, she was taken to Brahmaputra Nursing Home, Dibrugarh Page No.# 18/53 and P.W.6 & P.W.20 were with her. P.W.1 stated that Dalima Dutta expired on 09.01.2008 itself. He further stated that Dalima Dutta used to stay alone in the house and the housemaid, Arati Tanti used to do works in the house of Dalima Dutta from 06-00 a.m. to 08-00 a.m. He further stated that at the time of occurrence, masons were working in the house of Dalima Dutta. Binu Mahato and Mania Munda were working in the house of Dalima Dutta for plastering works. He found a blood stained dao lying inside the drawing room. P.W.1 suspected the act to be of the masons as, according to him, despite the incident, they were busy with their masonry work. P.W.1 further stated that after sending injured Dalima Dutta to Dibrugarh, he lodged the FIR at Tinsukia Police Station. He exhibited the FIR as Ext.-1 with his signature therein. He also identified the seized dao as Mat. Ext.-1; a pair of seized footwear as Mat. Ext.-2; and a seized hammer as Mat. Ext.-3. He further stated that about use of sniffer dog during the investigation. P.W.1 stated that the house of P.W.16 was to the right side of the house of Dalima Dutta. P.W.5 was another neighbour of Dalima Dutta. P.W.1 further stated that the house of Dalima Dutta was a RCC construction and there were boundary walls around the house with a gate in front of the house. The verandah was protected with grills. He stated about the presence of P.W.3 and P.W.19 at the P.O. at the time after the incident.
26. P.W.2 stated that Binu Mahato and Mania Munda were doing masonry works, at the relevant time in the house of the deceased. The housemaid, Arati Tanti used to work in the house of the deceased and her husband, Ganesh Tanti used to take the deceased to the School and also to bring the deceased back to her house from School. As regards the incident, P.W.2 stated that on being telephonically informed about the incident, he rushed to the house of his elder Page No.# 19/53 sister from his office and reaching there, he found his elder sister lying in a pool of blood in the front verandah of her house. Dalima Dutta was alive at that time and he made arrangement to send her to hospital. There was a large gathering of people and among them, the neighbours, P.W.3 and P.W.19 were present. Dalima Dutta was first taken to Tinsukia Civil Hospital and thereafter, to Brahmaputra Nursing Home, Dibrugarh where she succumbed to the injuries. P.W.2 stated that he informed the incident to Police and Police personnel came thereafter to the P.O. In course of investigation, Police personnel went to the house of Arati Tanti and he also went there. P.W.2 stated that Police personnel found the blood stained nightie of Dalima Dutta in the house of Arati Tanti and the Police seized it. The housemaid, Arati Tanti used to work in the house of Dalima Dutta from 06-00 a.m. to 08-00 a.m. P.W.2 mentioned about seizure of two daos, one with handle and another without handle from the drawing room of the house of his elder sister apart from a pair of footwear. P.W.2 stated that Binu Mahato and Mania Munda were working in the house of Dalima Dutta on the date of the incident and both of them were among the persons gathered there at the place of occurrence. When asked, they informed that they knew nothing.
26.1. During cross-examination, P.W.2 stated that at the time of the incident, Dalima Dutta was alone in the house. Dalima Dutta used to keep the main door under lock and key and she had no tenant. P.W.2 further stated that the extension works above the slab of the first floor were going on for the last six months.
27. P.W.3 was a witness who did not know any of the two accused persons.
Page No.# 20/53 On the date of the incident, P.W.3 came to the house of Dalima Dutta seeing the gathering. P.W.3 stated that when he peeped through the window, he found Dalima Dutta lying in front of the door inside with bleeding injuries on her person. P.W.3 acknowledged the presence of P.W.16 and P.W.19 at the place of occurrence.
27.1. When cross-examined, P.W.3 denied a suggestion that she had stated that the masons were working in the house of Dalima Dutta.
28. P.W.4, the daughter of the deceased, stated that on 09.01.2008, she was in Guwahati and hearing the news of death of her mother, she reached their house on 10.01.2008. P.W.4 stated that she used to know Arati Tanti and Mania Munda, who used to do household chores in the morning hours and construction works of the house respectively. P.W.4 further stated that at the relevant time, her father was alive and he was at Dumduma. P.W.4 further stated that a nightie of her mother was found in the house of Arati Tanti.
29. The testimony of P.W.5 is in the nature of hearsay.
30. P.W.6 identified, during his testimony, the two accused persons who used to do masonry works in the house of his elder sister. He further stated that the housemaid, Arati Tanti used to do works in the house of his elder sister. He further stated that hearing the news that someone had cut his elder sister, he came to the P.O. By that time, large number of people gathered there but nobody went close to his sister thinking that somebody might be inside the house. He saw his elder sister with bleeding injury at the place connecting the Page No.# 21/53 verandah and the first room of the house. Then, he went and held his sister and he along with his brother-in-law, P.W.20 lifted Dalima Dutta to take her to Tinsukia Civil Hospital at first and thereafter to Dibrugarh. But Dalima Dutta succumbed to the injuries after a while. P.W.6 stated that he noticed injuries on the head, back and many other parts of the body of his elder sister. He stated that Police obtained his signature on a sheet of paper and exhibited it as Ext.-2 with his signature therein as Ext.-2[1]. Ext.-2 is the Inquest Report. P.W.6 further stated that Police apprehended Arati Tanti and she showed to the Police how she along with the masons committed the crime.
30.1. During cross-examination, P.W.6 stated that he gave his signature in Ext.- 2 at the Police Station.
31. P.W.7, in his testimony-in-chief, stated that he came to the house of his elder sister after the incident had taken place. There he saw both Binu Mahato and Mania Munda at the house of his elder sister for the first time. It was P.W.19 who telephonically informed him that someone had assaulted his elder sister. By the time he reached the house of his elder sister, the injured Dalima Dutta was already taken to the hospital. He saw the presence of a large gathering of people in the house of his elder sister. Unlike the other prosecution witnesses, P.W.7 deposed to the effect that he saw the two accused person on the slab of the house of his elder sister. P.W.7 testified to have seen the housemaid, Arati Tanti once and he heard that her husband used to pull rickshaw.
31.1. During cross-examination, P.W.7 denied a suggestion that he had falsely Page No.# 22/53 stated that he saw the accused persons on the slab of the house.
32. P.W.8 came to the house of Dalima Dutta after being informed telephonically about the incident by one Kalyan Bora. By the time he reached the house, there was already a gathering of large number of persons. The injured, Dalima Dutta was already taken to hospital. Then, he went to Tinsukia Civil Hospital wherein he saw Dalima Dutta for a while. P.W.8 stated that his elder sister though thereafter was taken to Dibrugarh, she succumbed to the injuries there. Then he came back to the house of Dalima Dutta and at that time, he saw the Police arresting the two accused persons.
33. P.W.10 stated that at the relevant time, he was studying in Chennai. Learning about the incident on phone, he along with his younger sister who was also studying in Chennai, came back home and saw the deadbody of his mother. Later on, he came to learn from his aunts that it was Binu Mahato and Arati Tanti who had killed Dalima Dutta. P.W.10 further stated that Arati Tanti stated to Police how she killed Dalima Dutta and he was present at that time.
33.1. During cross-examination, P.W.10 stated that he stated to Police that Arati Tanti told them that she in collaboration with Binu Mahato hacked Dalima Dutta with a dao.
34. P.W.11 deposed that hearing about the untoward incident, she along with her husband, came to the house of Dalima Dutta on 09.01.2008. By the time they reached the house of Dalima Dutta, Dalima Dutta was already taken to Dibrugarh. P.W.11 further stated that Police apprehended Arati Tanti, the Page No.# 23/53 housemaid and Arati Tanti, in turn, narrated before them how she with the help of Binu Mahato and Mania Munda killed Dalima Dutta.
35. P.W.12, in his examination-in-chief, stated that he did not know the two accused persons facing the trial and the deceased, Dalima Dutta. He stated that he used to reside as a tenant in the house of one Kamal Bhatta at Bordoloi Nagar. About three years earlier, few Police personnel came to his rented house searching for Ganesh Tanti who also used to reside as a tenant under the same landlord. The landlord was not available at that time and the Police personnel took his signature on a piece of paper as a proof of their visit. P.W.12 stated that he did not see the Police personnel seizing any article. He did not know if the Police personnel made a search of the house of Ganesh Tanti to seize any clothes. He pleaded ignorance about the writing in the Seizure List [Ext.-3] though he identified his signature therein.
35.1. P.W.12 was declared hostile by the prosecution and on being granted leave, P.W.12 was cross-examined by the prosecution. During cross-examination by the prosecution, he denied the suggestions put to him by the prosecution.
36. P.W.13 is the wife of P.W.12. P.W.13 stated that Police personnel made a search in the house of a woman tenant under their landlord and seized a number of wearing apparels from her house. The Police personnel also took the women away with them. P.W.13 stated that she did not know the name of the woman. She stated that the Police obtained her signature on a piece of paper and without exhibiting the piece of paper, P.W.13 identified her signature there as Ext.-3[2].
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37. P.W.14 was another seizure witness. P.W.14 stated that during Magh Bihu in the month of January, 2008, he was called to the Police Station by the Officer In-Charge, Tinsukia Police Station, I.O. [P.W.27] to show a Compact Disc in connection with a murder case and his signature was taken in a Seizure List [Ext.-4] whereby the Compact Disc was seized. He exhibited his signature in Ext.-4 as Ext.-4[1]. He further stated that the Compact Disc was not played to him and he did not know whether Mat. Ext.-1 was the said compact disc. In cross-examination, P.W.14 stated that he did not know about the incident.
38. P.W.15 stated that after knowing about the untoward incident, he went to the house of Dalima Dutta. Dalima Dutta was already taken to Dibrugarh. He saw presence of a large gathering along with Police personnel in the house of Dalima Dutta. P.W.15 further stated that the Police personnel collected samples of footprints found in blood in the bathroom of Dalima Dutta. He stated that the Police personnel going to the house of Arati Tanti, seized a bloodstained nightie from her house. He gave his signature in the Seizure List [Ext.-5]. He was also a witness to the Seizure List [Ext.-6] whereby footwear was seized. P.W.15 further stated that blood samples from the bathroom of the house of Dalima Dutta were collected and thereafter, prepared a Seizure List [Ext.-7] wherein, he gave his signature. He further stated that he was a witness to the seizure of a dao vide Ext.-8, Seizure List.
39. P.W.17 was the then Secretary of the Village Defence Party of Guijan Market area. In his testimony, he stated that on a particular day, he visited the Police Station for some works and the Police personnel asked his signature in a Page No.# 25/53 Seizure List [Ext.-10] wherein he gave his signature. He identified his signature in Ext.-10 as Ext.-10[1]. He stated that he did not know what materials were seized by the Seizure List.
40. In examination-in-chief, P.W.18 stated that she did not know the two accused persons. She stated that she knew Dalima Dutta as Dalima Dutta was her neighbour. As regards the incident, P.W.18 stated that she heard hue and cry on the road whereupon she came out and saw a gathering of people on the road looking towards the house of Dalima Dutta. But, she did not go to the house of Dalima Dutta. Later on, she heard that someone had killed Dalima Dutta. She further stated that Dalima Dutta had a housemaid in her house but she did not know her name. Later on, she recollected the name of the housemaid as Arati and stated that Arati's husband used to pull rickshaw. It was Arati's husband who used to take Dalima Dutta to School and also to bring her back to her house from School.
41. P.W.19, in his examination-in-chief, stated that Dalima Dutta was his neighbour and she worked as a Head Mistress in a School. In respect of the incident, P.W.19 stated that on that day, hearing hue and cry in front of the house of Dalima Dutta, he made a phone call to P.W.7, a sister of Dalima Dutta to inform her about the untoward incident occurred in the house of Dalima Dutta. He sent his brother to inform Aruna Dutta, another sister of Dalima Dutta. P.W.19 stated that initially, he did not go to the house of Dalima Dutta. Later on, he saw that the door of the house of Dalima Dutta was broken and Dalima Dutta was lying in a pool of blood. He saw Dalima Dutta uttering something but he could not understand what she had said. P.W.19 further Page No.# 26/53 stated that masons were working in the house of Dalima Dutta at that time. A housemaid named Arati also used to work in the house of Dalima Dutta. P.W.19 also mentioned about Police taking the assistance of Police dog.
41.1. In cross-examination, P.W.19 stated that he had forgotten about signing in the Seizure List [Ext.-8] and stated that he was not aware why the Police took his signature in the said Seizure List.
42. P.W.20 stated that he knew the two accused persons facing trial. He stated that the two accused persons were masons. He further stated that the deceased, Dalima Dutta had employed a housemaid named Arati Tanti in her house and her husband used to take Dalima Dutta to her School and also to bring her back by his rickshaw. As regards the incident, he stated that at around 02-30 p.m. on that day in January, 2008, he was in his house and he was informed that someone had cut Dalima Dutta. Then, he went to the house of Dalima Dutta. Reaching there, he saw Dalima Dutta lying in a pool of blood and was not in a condition to speak. Then, he informed Dilip Sonowal, P.W.1, who by his car took Dalima Dutta to Tinsukia Civil Hospital. At Tinsukia Civil Hospital, the attending Doctor, Dr. Mridul Gogoi, P.W.23 suggested to take Dalima Dutta to Dibrugarh immediately as her condition was serious. P.W.20 then took Dalima Dutta to Brahmaputra Nursing Home at Dibrugarh for better treatment by an ambulance. But Dalima Dutta breathed her last after about 10 minutes after reaching Brahmaputra Nursing Home. Inquest on the deadbody of Dalima Dutta was performed and he gave his signature in the Inquest Report [Ext.-2]. P.W.20 further stated that Dalima Dutta was not in a position to speak while she was being taken to Dibrugarh by ambulance. P.W.20 further stated that Police Page No.# 27/53 personnel seized dao, rod, etc. apart from seizing saree, nightie and other wearing apparels from the house of Arati Tanti. When P.W.20 exhibited Ext.-5, Seizure List, the defence made an objection. P.W.20 stated he noticed injuries on the back side of head, forehead and other parts on the person of Dalima Dutta. He also learned from Arati when she stated before him that she kept Dalima Dutta holding and the appellant inflicted cuts on her. But, Arati did not tell him why Dalima Dutta was assaulted.
42.1. During cross-examination, P.W.20 stated that he had perhaps given his signature in the Seizure List [Ext.-5] in the Police Station along with P.W.1. P.W.20 stated that he did not recall what was written in Ext.-5 and he did not go through the contents of the Inquest Report [Ext.-2].
43. P.W.21 deposed that a housemaid, Arati was working in the house of Daima Dutta and as a neighbour, she knew about the said fact. As regards the incident, P.W.21 stated that at about 02-00/03-00 p.m. on that day, she hearing hue and cry from the house of Dalima Dutta came out of her house and saw a large number of people gathering there. From them, she could learn that someone had killed Dalima Dutta inside the house. The masons and the housemaid were arrested. After some days, the housemaid and the masons, apprehended by Police, were brought to the house of Dalima Dutta and during that time, the housemaid, Arati Tanti demonstrated how Dalima Dutta was killed. At the time of such demonstration, a mason was present there. Police videographed the entire incident of narration and demonstration of Arati Tanti.
44. P.W.22 was serving as a Constable [Traffic] at the relevant time. P.W.22 Page No.# 28/53 stated that in connection with the death of a female teacher, he accompanied the Officer In-Charge, Tinsukia Police Station to the P.O. A sniffer dog was also called to the P.O. In the course of investigation, the sniffer dog also went to the house of the housemaid, Arati Tanti and in the process, a bloodstained yellow colour saree, a shawl and a sweater were found in the house of Arati Tanti. Those were seized by the I.O. [P.W.27] by preparing a Seizure List [Ext.-3] and he gave his signature in the said Seizure List [Ext.-3]. It was the housemaid, Arati Tanti who showed those wearing apparels. He further stated that the housemaid, Arati Tanti narrated how the entire incident was committed and the narration given by Arati Tanti was videographed. The I.O. seized the C.D. of the said video by a Seizure List [Ext.-4] wherein he gave his signature as Ext.-4[2].
44.1. In cross-examination, P.W.22 stated that he did not know from whom the C.D. was seized and what was written in the Seizure List [Ext.-4]. He stated to have given his signature in the Seizure List [Ext.-3] in the house of Arati Tanti but he was not shown the wearing apparels seized through the Seizure List [Ext.-3] during his testimony in the Court. P.W.22 further stated that at the time he gave his signature in Ext.-3, he did not go through its contents.
45. P.W.23 was serving as a Medical & Health Officer - I at Civil Hospital, Tinsukia on 09.01.2008. In his testimony, P.W.23 stated that it was at about 03- 00 p.m. on 09.01.2008, he examined Dalima Dutta in connection with Tinsukia Police Station Case no. 25/2008. Dalima Dutta was brought and identified by P.W.6 & P.W.20. P.W.23 further stated that on examination of Dalima Dutta, he found the following injuries :
1. One sharp cut injury of size 15 cm X 2 cm X bone depth over right cheek.
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2. One sharp cut injury of size 4 cm X 2 cm X bone depth over nose.
3. One Sharp cut injury of size 6 cm X 1 cm X muscle depth over right parietal region of scalp.
4. One sharp cut injury of size 7 cm X 1 cm over right parietal region of scalp.
5. One sharp cut injury of size 6 cm X 1 cm X muscle depth over right forearm.
6. One sharp cut injury of size 4 cm X 1 cm X muscle depth over left forearm.
7. One sharp cut injury of size 3 cm X 1 cm X muscle depth over left forearm.
8. One sharp cut injury of size 5 cm X 1 cm X muscle depth over right forearm.
Out of the injuries, P.W.23 found injury no. 1 and injury no. 2 grievous in nature. Injury nos. 3 to 8 were found to be simple in nature. P.W.23 opined that all the injuries were caused by sharp cutting object and the age of the injuries were 0 to 1 hour. While exhibiting the Medical Examination Report as Ext.-11, he opined that the patient was in shock due to haemorrhage. He referred the patient to Assam Medical College for further necessary treatment after giving preliminary treatment.
45.1. In cross-examination, he clarified that by a sharp cutting object means any object with sharp edge.
46. P.W.24 was serving as a PSO to the Officer In-Charge, Tinsukia Police Station & I.O. [P.W.27] at the relevant point of time. P.W.24 stated to have accompanied P.W.27 on duty to the P.O. in connection with the murder of Dalima Dutta. A woman accused was also taken along with them. The accused then produced a saree, a shawl and a sweater from her house situated at Development locality and seized by the I.O. [P.W.27] by preparing a Seizure List [Ext.-3] wherein he gave his signature as Ext.-3[4].
Page No.# 30/53 46.1. In cross-examination, P.W.24 stated that in the Seizure List [Ext.-3], he gave his signature in the Police Station. He had forgotten who else had signed the said Seizure List. P.W.24 further stated that he saw the seized materials, but those were not shown to him during his testimony in court.
47. P.W.25 was a Photographer in the CID at the relevant point of time. In his testimony, P.W.25 stated that he did not know the accused persons. He stated that he went to the Development Area at Bordoloi Nagar on a date at the instruction of the I.O. [P.W.27] to take photographs in connection with the death of a female teacher. He stated that he did videography, both audio and visual, of the investigation process. A male person and a female person were apprehended. He came to learn that the woman was serving as a housemaid and the male was working as a mason in the house of the female teacher. The woman confessed that she had committed the incident and showed bloodstained clothes in her dwelling house. The woman also came to the house of the deceased wherein she confessed to have committed the incident. P.W.25 stated that he had forgotten what the woman had shown in the house of the deceased. After completing the recording, he came to the Police Station, prepared the Compact Disc [CD] and inserted the CD into a plastic packet meant for keeping the CD. Then he closed the opening of the packet wherein the I.O. [P.W.27] and he put signatures. The CD was thereafter, inserted in another envelope. The envelope and the packet containing the CD were opened in the Court and P.W.25 identified the CD as Mat. Ext.-4 and the Seizure List, Ext.-4 whereby the I.O. [P.W.27] seized the CD.
Page No.# 31/53 47.1. During cross-examination, P.W.25 stated that he gave his signature in the Seizure List [Ext.-4] at Tinsukia Police Station after it was prepared by the I.O. P.W.25 stated that he did not know Bhadrakanta Barsaikia and other witnesses who signed in the Seizure List [Ext.-4]. He, however, knew Priyadhar Handique [P.W.28], the other witness who signed in Ext.-4.
48. P.W.26, on 10.01.2008, was working as a Demonstrator in the Department of Forensic Medicine at the Assam Medical College & Hospital [AMCH], Dibrugarh. In examination-in-chief, P.W.26 stated that at about 12-30 p.m. on 10.01.2008, he performed Post-Mortem Examination on the deadbody of Dalima Dutta and upon examination, he found the following :-
External appearance :- Female dead body of average built, fair complexion, covered by a white cloth, wearing one blouse, one saree, one petticoat. Eyes and mouth closed, body cold on touch, rigomortis present all over the body Anus, vagina healthy, body looks pale. Old blood stains present all over the body and on wearing clothes at places.
Injuries :-
1. Incised wound of size 8cm X 2cm X brain deep over the right parietal region, placed vertically.
2. Incised wound of size 13cm X 5cm [with four number stitches] to 6cm X 1cm X bone deep over the frontal and right parietal region, placed vertically.
3. Incised wound of size 13cm X 2cm [with five numbers stitches] present on lower 1/3 of the nose in bone deep, placed horizontally.
4. Incised wound of size 4cm X 1.5cm present over the upper lip with upper jaw in bone deep, placed horizontally.
5. Incised wound of size 6cm X 1.5cm to 4.5cm X 1cm present all over the face in bone deep at places.
6. Incised wound of size 5.5cm X 12cm present on lateral aspect of right forearm in the Page No.# 32/53 bone deep.
7. Incised wound of size 8 cm X 1 cm present on dorsal aspect of right palm in bone deep.
8. Incised wound of size 12cm X 4cm present on posterior aspect of upper 1/3 of right forearm in muscle deep.
9. Incised wound of size 4.5cm X 2cm present on posterior middle 1/3 of left forearm in muscle deep.
10. Abrasion of size 13cm X 0.5cm to 5.5cm X 0.5cm present over the right arm.
11. Abrasion of size 3cm X 2cm present over the left arm.
Cranium and Spinal Canal : Scalp and skull - As described. All other organs were normal and healthy.
48.1. P.W.26 testified that 10 ml blood was collected, packed and sealed. It was then handed over to a Sub-Inspector, Tinsukia Police Station for further investigation. The Autopsy Doctor further testified that in his opinion, he opined that the death was due to coma resulting from injuries on the head. All the injuries were found to be ante-mortem in nature and caused by sharp cutting heavy weapon, except injury no. 10 and 11 which were due to blunt force impact. The death was homicidal in nature and the approximate time of death was 12 to 24 hours. He further stated that the injury no. 1 was individually sufficient to cause death of a person in normal course. When a dao was exhibited as Mat. Ext.-1, P.W.26 stated that by such type of weapon, injury nos. 1 to 9 could be caused. He further exhibited a hammer as Mat. Ext.-3 and stated that injury nos. 10 and 11 could be caused by Mat. Ext.-3. P.W.26 also exhibited Post-Mortem Examination Report as Ext.-12 and his signature and the signature of the Assistant Professor, AMCH therein.
Page No.# 33/53 48.2. In cross-examination, P.W.26 denied a suggestion that the injury detected on the deadbody could not be caused by Mat. Ext.-1 and Mat. Ext.-3 shown to him.
49. In his testimony, P.W.27 stated that after receiving telephonic information about the incident of assault on a lady, he registered a general diary entry, G.D. Entry no. 335 on 19.01.2008 at 02-45 p.m. Thereafter, he proceeded to the house of Dalima Dutta and there, he came to know that Dalima Dutta was assaulted by a dao in her house and she was lying injured. He came to know that Dalima Dutta was taken to Tinsukia Civil Hospital at first and thereafter, to the AMCH, Dibrugarh. Then, he telephoned the Officer In-Charge of Dibrugarh Police Station. When he entered into the house of Dalima Dutta, he found that clothes inside the room were smeared with bloodstains. He noticed six numbers of footsteps stained with blood on the tiles floor of the room. The footsteps led inside the corridor and footsteps were also found in the bed room of Dalima Dutta. One mechi dao was found near that blood. Then he requisitioned for a sniffer dog from Dibrugarh and also, for a fingerprint expert. The scene of the crime was left undisturbed till the arrival of the sniffer dog at around 06-00 p.m. The sniffer dog was made to sniff the P.O. and the dog thereafter, led them to the house of Arati Tanti, the housemaid. Arati Tanti was found in her house and she was brought to the Police Station. He stated to have seized one dao of 20 inches long with a wooden handle having blood stains and hairs vide a Seizure List [Ext.-13]. He collected samples from the blood found on the tiles of the bathroom vide Seizure List [Ext.-7] and a pair of chappal vide Seizure List [Ext.- 6]. The I.O. stated about preparing a Sketch Map of the P.O. and about the inquest proceeding. He stated about seizing a yellow colour sari and one woolen Page No.# 34/53 shawl from the possession of one Kamal Butta where Arati Tanti was residing vide Seizure Memo [Ext.-3] [under objection]. The I.O. also stated about the seizure of the CD wherein the Police videographer made videography of the P.O. vide a Seizure List [Ext.-4]. The I.O. [P.W.27] further stated that he seized one light blue half sporting without collar, having some bloodstains on it from the possession of the appellant vide Seizure list [Ext.-10] [under objection]. After receipt of the FIR from P.W.1 on 09.01.2008, he registered it and took up the investigation of the case. The accused persons Binu Mahato, Mania Munda and Ganesh Tanti were arrested on 11.01.2008. He forwarded the witness, Rebika Das [P.W.16] to the Court for recording her statement under Section 164, CrPC. The blood samples were forwarded to the Forensic Science Laboratory [FSL] and a Report was received from the Junior Scientific Officer, Serology Department of FSL vide Ext.-15. According to the I.O., the Report gave positive result for human blood in respect of the bloodstains found in M.R. no. 47/08, M.R. no. 4/08 and M.R. no. 5/08. The FSL Report gave negative test in respect of M.R. no. 9/08 and M.R. no. 16/08. The Report from the Finger Print Expert [Ext.-16] was also received and as per the Finger Print Expert's Report, the footprint was a blood clotted left footprint and the said footprint was similar to that of the left footprint of the housemaid, Arati Tanti. It was also indicated in the Report that the person was wearing socks at that time. The material exhibits, Mat. Ext.-1, dao and the Mat. Ext.-3, a hammer were exhibited by the I.O.
49.1. When the I.O. [P.W.27] was cross-examined, he stated he found the verandah of the house of the deceased surrounded by iron grills and apart from one door in the grills, there was another door inside. The dao he had seized was Page No.# 35/53 found lying in the drawing room of the house. When he reached the P.O., he found the door lock of the house broken and the door had a latch from inside. When he reached the P.O., that inside latch of the door was found broken. The I.O. [P.W.27] further stated that the house of P.W.9 was located near the P.O. and he indicated the same in the Sketch Map. The place inside the room where the deceased was lying in an injured condition, was smeared with blood stains. He further stated that he recorded the statement of the husband of the deceased on the next date of the incident. The husband, later on, had expired. The names of the relatives who were examined by him were mentioned. The I.O. [P.W.27] further stated that the process of taking fingerprints and footprints from the P.O. and examining the weapon of assault were entrusted to the CID. The I.O. [P.W.27] further stated that Ext.-8 to seize the hammer was prepared in the house of the deceased. The iron hammer was seized from the roof of the house and he denied that the Seizure List [Ext.-4] was not a genuine document. The I.O. [P.W.27] further stated that the deceased was a teacher and when she used to the school, she used to lock the door from outside putting lock and key and she used to keep the key with her. It was one Ganesh Tanti, one rickshaw puller, who used to take Dalima Dutta to the School and also to bring her back from School daily. P.W.27 also exhibited the extract copy of the G.D. Entry no. 335 dated 09.01.2008 as Ext.-17. He further stated that before his arrival at the P.O., the injured Dalima Dutta was shifted to hospital.
50. P.W.28 was serving as a Constable at Tinsukia Police Station during the relevant point of time. He exhibited Seizure List, Ext.-4 whereby a CD was seized. He stated that the I.O. [P.W.27] seized the CD from the photographer, P.W.25. Before seizure, the CD was played and shown to them and it contained Page No.# 36/53 visuals of the P.O. where a murder had taken place at Bordoloi Nagar, Tinsukia. In cross-examination, he denied a suggestion that the CD was not shown in the Police Station.
51. P.W.29 who was a niece of the deceased, testified that on 09.01.2008, she was coming to Tinsukia by Rajdhani Express and in the train itself she got the message about the untoward incident. It was on 11.01.2008 she reached Tinsukia and she went straightway in the house of Dalima Dutta at 04-00 a.m. P.W.29 stated that on 16.01.2008, the Shradha ceremony was held and on that day, the housemaid, Arati Tanti was also present. During the Shradha ceremony, Arati Tanti had confessed that Dalima Dutta was murdered by all the three accused persons after hatching a conspiracy and the weapon, dao was kept concealed under a show-case type almirah in the drawing room. P.W.29 further stated that one of the three accused persons gagged the mouth of the deceased and the other two killed her. P.W.29 further stated that the confession made by Arati Tanti was videographed. P.W.29 during cross-examination, denied all the suggestions given to her by the defence.
52. P.W.30 was serving as a Dog Instructor of the sniffer dog at the CID, DEF, Dibrugarh. He stated that at the relevant time, there was a sniffer dog squad at DEF, Dibrugarh. He came with one sniffer dog to Tinsukia Police Station and they were taken to the house of the deceased at Bordoloi Nagar. There, he saw a pool of blood and the sniffer dog was made to smell all those things. Thereafter, the sniffer dog led them to a house at a distance of around 1 to 1½ Km where they found one hammer. The hammer was then seized by Police by preparing a Seizure List [Ext.-8] wherein he gave his signature as Ext.-8[4].
Page No.# 37/53 52.1. During cross-examination, P.W.30 stated that the pool of blood was sniffed by the sniffer dog. He further stated that there was no one present in the house at Kokratoli wherefrom the hammer was seized. He did not state before the Police about the names of the persons who accompanied him with the sniffer dog. P.W.30 stated that he gave his signature in the Seizure List [Ext.-8] at Dibrugarh Police Station after being prepared by the I.O. [P.W.27]. P.W.30 stated that he did remember the name of the I.O.
53. After closure of evidence from the prosecution side, the two accused persons facing the trial were examined under Section 313[1][b], CrPC by the trial Court. When the appellant so examined, the plea taken by the appellant was falsity in the prosecution side when each of the adverse circumstances appearing against him from the testimony of each of the prosecution witnesses was put to him. He further stated that he was innocent and he never worked as a mason in the house of deceased and he was falsely implicated in the case.
54. On the other hand, the other accused person who was allegedly employed for the masonry works with the appellant at the house of the deceased, admitted his presence in the house campus of the deceased on the date of the incident. The other accused stated that he was not involved in the murder of Dalima Dutta and the allegations leveled against him were false.
55. On an analysis of the entire testimony and the evidence/materials on record, it is found that there was no eye-witness to the incident of assault on the deceased. Evidently, the case of the prosecution is based on circumstantial Page No.# 38/53 evidence.
56. On perusal of the Judgment and Order of the learned Trial Court, we find that the Trial Court has taken the following circumstances to be conclusively established :-
[i] Deceased Dalimi Dutta died inside her house;
[ii] Death is homicidal in nature;
[iii] At the relevant time, construction work was going on in the house of the deceased and accused Binu Mahato was working as mason in the house of the deceased and accused Mania Munda was his helper;
[iv] Accused Mania Munda at the time of recording his statement under Section 313, CrPC admitted that at the time of occurrence, he and accused Binu Mahato were working in the house of the deceased.
[v] P.W.1, 2, 9, 16 and 20 had seen Binu Mahato and Mania Munda working in the house of the deceased on the date of incident. After the incident, on being asked, they replied that they did not know how the incident took place.
[vi] No explanation of the circumstances offered by the accused persons, in which they were present in the house of the deceased at the relevant time of occurrence and even they did not make any whisper that they had seen any person to enter in to the house of the deceased to commit such offence.
57. Upon analysis of the entire evidence/materials on record including medical evidence and testimony of P.W.23 and P.W.26, we find ourselves in agreement with the Trial Court as regards the first three circumstances enumerated above.
58. The fourth circumstance is with regard to the examination of the two Page No.# 39/53 accused persons under Section 313[1][b], CrPC. On perusal of the statements given by the two accused persons who faced the trial, it is noticed that the accused, Mania Munda admitted in his statement under Section 313[1][b], CrPC to the extent that he and the appellant were working in the house of the deceased, Dalima Dutta for masonry works. When the same incriminatory circumstance as regards presence of both the accused persons in the house compound of the deceased on the date of the incident was put to the appellant at the stage of his examination under Section 313[1][b], CrPC, the response given by the appellant was not similar to the one given by the other accused, Mania Munda. The appellant herein in his reply to the circumstance that both he and Mania Munda were working in the house of the deceased, Dalima Dutta on the date of the incident, denied the same with a plea of falsity in the prosecution case.
59. The fifth circumstance referred to by the Trial Court is found to be as per the testimony of the prosecution witness, referred therein.
60. The sixth circumstance, that is, non-explanation on the part of the appellant was considered by the Trial Court as an additional circumstance in the chain of circumstance and the Trial Court treated it as the circumstance completing the chain pointing towards the involvement of the appellant in the crime committed.
61. We now turn to the circumstances, which, according to the prosecution, are found incriminatory to the appellant. According to the prosecution, the adverse circumstance are, firstly, there was seizure of a hammer; secondly, Page No.# 40/53 there was seizure of a wearing apparel of the appellant, that is, one light blue half sporting ganji without collar with suspected blood stains; thirdly, the appellant was found to be present at the P.O., that is, the house compound of the deceased since before the incident; fourthly, the absconding accused, Arati Tanti had confessed regarding her involvement as well as the involvement of the appellant in the crime; and fifthly, the appellant failed to provide a plausible explanation in his statement recorded under Section 313[1][b], CrPC. According to the prosecution, when the first four circumstances established have pointed towards the involvement of the appellant in the crime, the appellant owed an explanation under Section 106, Evidence Act to disclose the facts which were especially within his knowledge and such failure in the form of fifth circumstance has provided the additional link to complete the chain of circumstances.
62. P.W.6 stated that Police apprehended the housemaid, Arati Tanti and it was she who showed the Police personnel how she along with the two accused persons who faced the trial, had committed the incident. P.W.10 stated that it was Arati Tanti who told them about the manner in which she with the help of the appellant hacked the deceased with a dao. P.W.11 testified to the effect that Police apprehended the accused person, Arati Tanti and thereafter, Arati Tanti narrated before her how she with the assistance of the two masons killed Dalima Dutta. As per P.W.20, he came to learn from the accused, Arati Tanti as she stated before him that at the time of committing the act, Dalima Dutta was held by her and it was the appellant who inflicted the cuts on her.
62.1. As per the testimony of P.W.21, Police apprehended the housemaid- accused, Arati Tanti and a mason. Few days after apprehending them, Police Page No.# 41/53 brought them to the house of the deceased and on that day, the accused, Arati Tanti gave a demonstration as to how Dalima Dutta was killed and Police video recorded the entire incident of narration and demonstration given by Arati Tanti. P.W.21 stated that at the time of such narration and demonstration given by Arati Tanti, large numbers of persons including all the neighbours, were present.
62.2. P.W.22, the Police Constable, stated that the accused, Arati Tanti narrated how the entire incident was committed and the narration made by the said accused person was video recorded. The said video recording was captured in a CD, Mat. Ext.-4, which was seized vide Seizure list [Ext.-4]. P.W.25, the Photographer of the CID deposed to the effect that he recorded the investigation in both audio and video form, after two accused persons, one male and one female, were apprehended. As per his testimony, the woman was serving as a housemaid and the male person was working as a mason in the house of the deceased. The woman had confessed that she had committed the act of murder. As per the testimony of P.W.29, the Shradha ceremony was on 16.01.2008 and it was on that day, Arati Tanti confessed regarding the incident and the manner in which Dalima Dutta was murdered by three of them after hatching a conspiracy. P.W.29 had further stated that the confession of Arati Tanti was videographed.
63. One nightie belonging to the deceased with suspected blood stains was stated to have been seized at 11-00 a.m. on 10.01.2008 on being led and shown by the accused person, Arati Tanti during a search in the house of the deceased. As per the Seizure List, the nightie was kept concealed in the garment stand. In his testimony, the I.O. [P.W.27] stated that after arrest of Page No.# 42/53 Arati Tanti, the I.O. arrested the three accused persons, namely, [i] Binu Mahato, [ii] Mania Munda and [iii] Ganesh Tanti in connection with the case on 11.01.2008.
64. As per Section 25 of the Evidence Act, no confession made to a Police Officer shall be proved against a person accused of any offense. The rule of evidence contained in Section 26 of the Evidence Act is to the effect that no confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. Section 27 of the Evidence Act is an exception to Section 26 of the Evidence Act. It has been consistently held that Section 25 and Section 26 have been enacted not because the law presumes the statements to be untrue, but having regard to the tainted nature of the sources of the evidence, they are prohibited from being received from evidence. Therefore, any admission made to a Police Officer is inadmissible under Section 25 of the Evidence act and that ban is extended also through Section 26 to the confession made to any other person also if the confessor was then in Police custody. Such custody need not necessarily be post-arrest custody. The custody used in Section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the Police during which his/her movements are restricted, then it can be regarded as custodial surveillance for the purpose of the section. If he or she makes any confession during that period to any person be he not a Police Officer, such confession could also be hedged within the band contours outlined in Section 26 of the Evidence Act [Ref : State of Andhra Pradesh vs. Gangula Satya Murthy, [1997] 1 SCC 272].
Page No.# 43/53
65. With such principle of law as regards admissibility or otherwise of a confession made by a person within the ken of surveillance of a Police Officer, the fact regarding re-enacting the crime scene by the accused person, Arati Tanti which is stated to be videographed, is clearly inadmissible in law in view of the bar contained in Section 25 and 26 of the Evidence Act. As a corollary, any confession made by the said accused person implicating the appellant herein is also to be disregarded being inadmissible in law.
66. There is evidence as regards recovery of the hammer. As per the testimony of the I.O. [P.W.27], one iron hammer was seized from the roof of the house of the deceased vide Seizure List [Ext.-8]. He stated that an iron hammer with a bamboo butt was found in the concrete roof of the RCC house of the deceased with the assistance of the sniffer dog of the CID in presence of witnesses - P.W.15, P.W.19 & P.W.30. P.W.30 was a master of the sniffer dog. In his testimony, P.W.30 stated that the sniffer dog was made to smell all the things in the house of the deceased at first and thereafter, the sniffer dog led them to a house at a distance of about 1 to 1½ Km and it was in that house, one hammer was seized by Police vide Seizure List [Ext.-8] where he gave his signature as Ext.-8[4]. P.W.30 further testified that the house was at Kokratoli wherein the hammer was found and at that time, there was no one in the house. P.W.19 mentioned about the sniffer dog and the Seizure List [Ext.-8]. He stated that he had forgotten where he put his signature, Ext.-8[2] in the Seizure List. He failed to name the persons who, apart from him, put signatures in the Seizure List [Ext.-8]. P.W.19, however, stated that he could not say whether the Seizure List [Ext.-8] was written or not when his signature was taken by Police. P.W.19 further stated that he could not say why Police obtained his signature in Page No.# 44/53 the Seizure List, Ext.-8. P.W.15 stated that he exhibited the Seizure List as Ext.-8 whereby a dao was seized. In view of such inconsistent testimony as regards the place of seizure and the manner of seizure of the iron hammer, Mat. Ext.-3, the entire evidence regarding the hammer is found to be clouded and doubtful.
67. It is noticed that by the Seizure List [Ext.-10], the I.O. [P.W.27] had shown seizure of one light blue half sporting ganji without collar with suspected blood stains from the possession of the appellant in connection with the case and in presence of the witnesses mentioned therein. The place of seizure was shown as Tinsukia Police Station.
68. Vide a Seizure List [Ext.-10], one light blue half sporting ganji without collar with suspected blood stains was seized from the possession of the appellant at 11-30 a.m. on 11.01.2008 in presence of three witnesses - Julhas Rahman [P.W.17], Mihir Bardhan [not a witness] and Bhadra Barsaikia [P.W.14]. While P.W.17 testified to the effect that he appended his signature in Ext.-10, Seizure List but he did not know what was seized vide the Seizure List. On the other hand, when P.W.14 gave his testimony, the Seizure List [Ext.-10] was not shown to him. Meaning thereby, Ext.-10 [Seizure List] was not exhibited through P.W.14.
69. As per P.W.17, his signature was obtained in the Seizure List [Ext.-10] when he visited the Police Station on a particular day. But he did not know what kind of material was seized by the Seizure List [Ext.-10]. The wearing apparel of the appellant, seized vide Ext.-10, was sent for examination to the FSL for serological examination. The Scientific Officer, FSL submitted a Report dated Page No.# 45/53 26.02.2008 [Ext.-15] after its serological examination. As per the result of the serological examination, the wearing apparel of the appellant seized vide Seizure List [Ext.-10] gave negative test for presence of blood stains.
70. It is contended that the appellant could not have been convicted for the offence under Section 302, IPC and Section 34, IPC, in view of acquittal of the other accused person. It is submitted on behalf of the appellant that the set of evidence against the two accused persons who faced the trial were same and in view of the acquittal of the other accused person, Mania Munda, the case of the appellant is required to be examined on the principle of parity. It has been apprised that the order of acquittal passed in favour of the other accused person, Mania Munda has become final as no appeal has been preferred by the State challenging the Judgment dated 11.12.2019 passed in Crl.App.[J] no. 53/2016 [Mania Munda vs. State of Assam] by a Coordinate Bench of this Court. On the other hand, it is contended on behalf of the State that merely because the State did not file any appeal against the Order of acquittal of Mania Munda, this court can go for appreciation of the evidence on record on its own notwithstanding the order of acquittal of the other accused person.
71. The power of the appellate court in dealing with an appeal, as defined under Section 386[1][b], CrPC against an order of conviction and appreciation of evidence is as wide as that of the trial court and it has full power to review the whole evidence. The appellate court is entitled to go into the entire evidence and all the relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused person. In Sundar Singh vs. State of Punjab, reported in AIR [1962] SC 1211, it has been held that the appellate provision in Page No.# 46/53 the Code do not create a bar against the appellate court from considering indirectly and incidentally a case against the person who was acquitted, if that becomes necessary when dealing with the case in the appeal presented on behalf of the other accused who is convicted. In considering the evidence as a whole, the appellate court may come to the conclusion that the evidence against the person acquitted was also good and need not have been discarded. When several persons were alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate court to find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State. The effect of such a finding is not to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality.
72. In the present appeal, the situation is not exactly similar to the case in Sundar Singh [supra] as we are not in appeal in connection with the Judgment and Order rendered by a coordinate bench of equal strength in Crl.App.[J] no. 53/2016 [Mania Munda vs. State of Assam]. The appellant herein has preferred the present criminal appeal separately assailing the same Judgment and Order 11.12.2019 of the Trial Court. The co-accused person has been acquitted by the Judgment and Order dated 11.12.2019. It is settled that a Judgment of a coordinate bench of equal strength is to be respected, meaning thereby, a coordinate bench of the same Court is not to embark on an exercise of re- appreciation of the evidence in respect of the acquitted co-accused person, like an appellate court to find out as to whether the co-accused person has been Page No.# 47/53 wrongly acquitted by the coordinate bench of equal strength, more particularly, when such order of acquittal of the co-accused person passed by the coordinate bench of equal strength has not been taken to appeal and the coordinate bench of equal strength on appreciation of the evidence has acquitted the co-accused person. Yet at the same time, we are tasked to appreciate the evidence on record to find out, notwithstanding the acquittal of the co-accused person, whether on the same set of evidence the case of the appellant stands on similar footing or on a different footing.
73. The law is also settled that when there is similar or identical evidence of witness against two accused by ascribing them the same or similar rule, the Court cannot convict one and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. Elucidating the principle, the Hon'ble Supreme Court in Javed Shaukat Ali Qureshi vs. the State of Gujarat, [2023] 9 SCC 164, has observed that the principle means that the criminal court should decide like cases alike, and in such cases, the court cannot make a distinction between the two accused, which will amount to discrimination.
74. It is noticeable in the present case, as has emerged from the evidence on record, that it was the appellant who, according to P.W.9, brought a crowbar and handed it over to him when it was found that Dalima Dutta was lying inside her house apparently in an injured condition with the door locked from inside. It was with the crowbar handed over to P.W.9 by the appellant, P.W.9 in presence of a gathering of persons at the P.O. broke open the locked door. Thereafter, Dalima Dutta crawled from inside to the verandah of the house. It has further Page No.# 48/53 emerged from the testimony of the prosecution witnesses that the appellant along with the other co-accused was working in the house of the deceased from a period anterior to the incident. It has also emerged that the appellant and the co-accused person were also present in the house compound of the deceased along with the other persons, who gathered there on hearing the information about the untoward incident. The appellant and the co-accused person were also present subsequent to breaking open the door till the time the injured was taken to treatment.
75. In a case based on circumstantial evidence, the previous, attending or subsequent conduct of a person is relevant under Section 8 of the Evidence Act. Ordinarily, the natural conduct for a person when there is any incident is to get away from the scene of the crime in order to save oneself, where there is strong possibility to suspect him as the perpetrator. It does, not at the same time, mean that if a person stays at the scene of the crime along with other people, it is a circumstance from which an irresistible conclusion can be drawn as regards his innocence. However, the conduct of the appellant being present during the time preceding, attending and succeeding the incident along with his act of informing the neighbours, P.W.9 and P.W.16, and helping P.W.9 with a crowbar to recover the injured are circumstances which weigh in his favour.
76. The law regarding the burden on the prosecution to establish the case on the basis of circumstantial evidence has been expounded by a three-Judge Bench of the Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra, [1984] 4 SCC 116, which has attained the status of locus classicus. In view of the rule of evidence in Section 101 of the Evidence Act, it is Page No.# 49/53 always the burden of the prosecution to prove its case. The prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. It is also held to be not the law that where there is any infirmity or lacunae in the prosecution case, the same can be cured or supplied by a false defence or a false plea.
76.1. The Hon'ble Supreme Court has observed in the following manner :-
152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail [Alias] Simmi v.
State of Uttar Pradesh [(1969) 3 SCC 198] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
[1] the circumstances from which the conclusion of guilt is to be drawn should be fully Page No.# 50/53 established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri LJ 1783] where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
[2] The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, [3] the circumstances should be of a conclusive nature and tendency, [4] they should exclude every possible hypothesis except the one to be proved, and [5] there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
77. The above five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence.
78. The Hon'ble Supreme Court has gone on to observe that absence of explanation or false explanation will not amount to an additional link to complete the chain. Before a false explanation can be used as additional link, three essential conditions must be satisfied :-
159. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the Page No.# 51/53 chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
[1] various links in the chain of evidence led by the prosecution have been satisfactorily proved, [2] the said circumstance points to the guilt of the accused with reasonable definiteness, and [3] the circumstance is in proximity to the time and situation.
79. It is only when the above three essential conditions are fulfilled a court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. It is also a settled proposition that if an accused fails to or does not throw any light explaining the circumstances by exercising his right to keep silent, court would not draw an adverse inference against the accused, unless the situation is such that the rule of evidence entrenched in Section 106 of the Evidence Act gets operational.
80. On an overall and wholesome analysis of the evidence/materials on record and taking into account the entire facts and circumstances obtaining in the case, we are of the considered opinion that the prosecution has not been able to prove all the circumstances by cogent, credible and reliable evidence to complete the chain of circumstantial evidence. There were many missing links in the chain in the case of the prosecution on the basis of which a conviction can be permitted. Though it can be said that the evidence/materials on record raises a needle of suspicion to the two accused persons who faced the trial, there is apparently failure on the part of the prosecution to establish and raise the case from the level of 'may be true' to 'must be true', which is indispensably required Page No.# 52/53 to return a finding of guilt and to order conviction. It is only when the prosecution establishes its case to the level from which a reasonable inference is drawable to the effect that it is only the accused, none else, is the perpetrator of the crime, the onus shifts to the accused under Section 106 of the Evidence Act to provide an explanation inconsistent with the case of the prosecution. On a thorough analysis of the evidence/materials on record, we are not persuaded to reach a view that the prosecution has made out a case to shift the onus to the appellant here to provide any explanation under Section 106 of the Evidence Act. In such view of the matter, his statement given at the stage of Section 313[1][b], CrPC cannot be held to be an additional link to support the case of the prosecution.
81. It is settled that suspension, however strong it may be, cannot take the place of proof. In a criminal trial, suspicion, no matter how strong cannot and must not be permitted to take the place of proof. The distance between 'may be true' and 'must be true' must be covered by way of cogent, reliable and credible evidence produced by the prosecution before an accused can be held guilty. It is well settled principle of criminal jurisprudence that if two views are possible on the evidence/materials of the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by a circumstantial evidence.
82. In view of the discussion made above wherefrom a number of missing links in the chain of circumstantial evidence have emerged, we find that the Judgment and Order of conviction and sentence passed against the appellant is Page No.# 53/53 unsustainable in law. Such view is also fortified by the Judgment and Order of acquittal passed by the coordinate bench of equal strength whereby the co-
accused, more or less, similarly circumstanced has been acquitted. Resultantly, the instant criminal appeal has been allowed. The Judgment and Order of conviction and sentence passed against the appellant by the trial court is set aside.
83. Consequently, the instant criminal appeal stands allowed. The appellant is to be released from custody forthwith if his custody is not required for any other case or purpose.
84. Before parting with the record, we wish to place our appreciation on record as regards the service rendered by Mr. A. Dhar, learned Amicus Curiae appearing for the appellant and direct the Registry to make available to him just remuneration as per the notified fee structure applicable to the Amicus Curiae.
JUDGE JUDGE Comparing Assistant