Gauhati High Court
CRL.A(J)/9/2017 on 29 June, 2022
Author: Malasri Nandi
Bench: Suman Shyam, Malasri Nandi
Page No.# 1/20
GAHC010119682017
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Case No: CRL. A(J) 9 of 2017
Sunil Barman
.................................. Appellant/accused
Versus
State of Assam
..........................................Respondent
:: BEFORE ::
HONOURABLE MR. JUSTICE SUMAN SHYAM
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellants/Petitioners : Mr. Z. Hussain
For the Respondents : Ms. B. Bhuyan
Date of Hearing : 02.06.2022
Date of delivery of
Judgment and Order : 29.06.2022
Page No.# 2/20
JUDGMENT & ORDER (CAV)
Malasri Nandi, J.
1. Heard Mr. Z. Hussain, learned amicus curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned senior counsel (Addl. P.P., Assam) assisted by Mr. J. Das, learned counsel appearing on behalf of the State.
2. This appeal has been preferred by the sole appellant Sunil Barman challenging the Judgment and order of conviction dated 21/12/2016 passed by the learned Sessions Judge, Chirang, Kajalgaon in Sessions case no 14(D) of 2015 convicting the accused/appellant u/s 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- in default a further term of simple imprisonment for one year.
3. The prosecution case, in brief, is that the informant Ranjit Das lodged an Ejahar before the Officer In-charge Dhaligaon PS on 01/06/2007 stating inter alia that on 22/05/2007 Sunil Barman called his younger brother Bhutu Das to Hatiputa village from the labour camp at Kukurmari where he was residing. Since then his younger brother was missing. When he visited Dhaligaon PS to enquire about the matter in the evening of 22/05/2007, he came to know that one dead body had been recovered at village Vhiran on the bank of river Aye. One photograph of the dead body was kept in the police station. Having seen the photograph he could identify the dead body to be of his brother Bhutu Das. It is alleged that Sunil Barman killed his brother in a pre planned manner and left his body on the bank of river aye.
4. On the basis of the complaint, a case was registered vide Dhaligaon PS case Page No.# 3/20 no 49/07 u/s 302 IPC and police started investigation thereof. During investigation, the investigating officer visited the place of occurrence, recorded the statement of the witnesses, drew the sketch map of the place of occurrence, inquest on the dead body was conducted and thereafter sent the dead body for post mortem examination. After completion of the investigation charge sheet was filed u/s 302/201 IPC against the accused/appellant in the court of learned Additional CJM, Bongaigaon. After furnishing of the necessary copies to the accused/appellant on production of the accused before the court of Additional CJM, Bongaigaon and the case being exclusively triable by the court of sessions, the case was committed to the Trial court. Accordingly charge was framed u/s 302 IPC which was read over and explained to the accused/appellant to which he pleaded not guilty and claimed to be tried.
5. To prove the guilt of the accused, prosecution side examined thirteen (13) witnesses and marked five exhibits. However, the defence side did not adduce any evidence. The plea of the defence was of total denial.
6. After conclusion of the trial, the Learned Sessions Judge, Chirang found the appellant guilty of offence punishable u/s 302 IPC vide judgment and order dated 21/12/2016 as aforesaid.
7. Being highly aggrieved and dissatisfied with the impugned judgment, the appellant has preferred this appeal challenging the order of conviction.
8. Mr. Z. Hussain, Learned Amicus Curie, appearing for the appellant has submitted that it is a case of circumstantial evidence. There is no evidence on record Page No.# 4/20 that the deceased was seen together with the appellant at the place of occurrence. The Trial court has placed heavy reliance upon extra judicial confession allegedly made by the appellant before P.W-1 Ranjit Das, P.W-2 Kamal Basumatary, and P.W-4 Ukil Barman.
9. Learned counsel for the appellant also argued that the time gap between the point of time when the accused/appellant was last seen with the deceased and when the deceased was found dead is of long duration and therefore the said circumstance is to be ignored.
10. Another contention raised by learned counsel for the accused/appellant is that the incident occurred on 22/05/2007 but the Ejahar was lodged on 01/06/2007 and there is no explanation regarding delay in lodging the FIR which is fatal to the prosecution case.
In support of his aforesaid submissions, learned counsel for the appellant has placed reliance on the following case laws -
a. 1995 Supp (4) SCC 259 (Balvinder Singh v. State of Punjab) b. (2019) 4 GLT 854 (Padmamati Mardi v. State of Assam and others) c. (2020) 14 SCC 750 (Shailendra Rajdev Pasvan and others v. State of Gujarat and others)
11. On the contrary, learned counsel appearing for the state has vehemently opposed the appeal contending that there are concurrent findings of fact which do not require any interference by this court. Undoubtedly, the case is based on Page No.# 5/20 circumstantial evidence but chain is complete and the circumstantial evidence is so strong that it unmistakably points to the guilt of the appellant and that circumstances are incapable of explanation upon any other reasonable hypothesis than that of the guilt of the appellant. There have been sufficient materials on the basis of which the trial court had convicted the appellant and the impugned judgment does not require any interference. The appeal lacks merit and is liable to be dismissed. Learned counsel for the state cited one case law in support of her submissions - (2013) 3 SCC 322 (R. Kuppusamy v. State represented by Inspector of police Ambeiligai)
12. We have considered the submissions made by the learned counsel for the parties and perused the records.
13. Before proceeding further it may be necessary to ponder over the evidence of the witnesses recorded by the learned Trial Court.
14. PW-1 is the informant, brother of the deceased. He deposed in his evidence that in the year 2007 he along with 16-17 others came to Dhaligaon for the works of Power Grid. His deceased brother Bhutu Das also came with him. Originally, they were the residents of village Chikliguri under Samuktala P.S. in the state of West Bengal. He knew the accused Sunil Barman. He married the sister in law of his brother Bhutu Das. On 22/05/2007 at about 9 AM Sunil Barman came to their camp and took his brother to his house near the Aye River. His brother did not come back on that day. Thereafter they started searching for his brother but he was traceless. At that time accused Sunil was also not available at his house. After 5-6 days, finding no Page No.# 6/20 alternative he went to Dhaligaon P.S. and reported about his brother going missing. Then police showed one photograph of a dead body which he identified as the dead body of his brother Bhutu Das. Police told him that they found the dead body on 22/05/2007 at night at the bank of river aye. Thereafter, he lodged an FIR against Sunil Barman at Dhaligaon PS vide exhibit 1.
15. This witness also stated that accused Sunil Barman resided in Bengal for a long time. He used to reside in his father in law's house. But later on, his relationship with his wife became strained and the accused suspected his brother Bhutu Das for the reason of their bitter relationship. When he (P.W.-1) reported the incident to his contractor, he managed to capture Sunil Barman. Sunil Barman, confessed in their presence that he had killed his brother Bhutu Das by assaulting him on his head with a stone. Then the contractor handed over the accused before police.
16. In his cross examination, P.W-1 replied that he did not see the occurrence. As Sunil took his brother from the camp, he lodged the FIR against him on suspicion. Though a suggestion was made to PW1 that he did not state before police that the accused had confessed his guilt for causing the murder of his brother by assaulting him on his head with a stone but the said statement was not confirmed by the IO while deposing before the court.
17. P.W-2 is Kamal Basumatary. He was the In-charge of Kukurmari Camp wherein the deceased was working. He deposed in his evidence that the incident took place on 22/05/2007. At that time he along with six other persons were doing electrification work in the National highway in the name of "Mili Brahma Enterprises". They hired 14 Page No.# 7/20 labourers from Kamakhayaguri of Bengal. They made lodging arrangements for the labourers by setting up a camp at Kukurmari near Bengtal Gate. The deceased Bhutu Das also stayed in the said camp as a labour. On 22/05/2007, Sunil Barman (brother in law of Bhutu Das) came to their camp and invited Bhutu Das to pay a social visit and took him away but they did not return back. On the following morning dead body of Bhutu Das was recovered on the bank of river Aye. On being called by the police, they visited the police station and identified the dead body. Sunil also absconded from that day. He was not traced out. Later on, wife of the deceased made a phone call to Sunil Barman and told him that she would marry him and asked him to come to Dangtal Market from Salmara. On arrival of Sunil, they apprehended him and handed him over to police.
18. This witness also clarified that accused Sunil Barman stated before them that at the time of his marriage he had chosen the wife of Bhutu Das to marry her but she got married to Bhutu Das as he was a local boy. Sunil also confessed before them that in order to solemnize his second marriage with his own sister in law, he had killed Bhutu Das. He told them that after making Bhutu consume liquor he had taken him to the bank of river Aye and killed him by striking with a boulder.
19. In his cross examination, P.W-2 replied that there were 14 labourers in the camp at Kukurmari. They had 30/32 labourers in total. The labourers from Bengal stayed in the camp; there was no dispute/quarrel between the local labourers and the labours from outside. He did not see Sunil taking away Bhutu by inviting him to pay a social visit to his house. He learnt it from other labourers. He did not see Bhutu Page No.# 8/20 being assaulted/ killed. After apprehending Sunil Barman they assaulted him. It was suggested that the accused Sunil Barman did not make any confession before them.
20. P.W-3 is Hem Kanta Brahma who is a contractor by profession. He deposed in his evidence that the deceased Bhutu Das, who stayed in a camp at Dhaligaon, was one of his labourers. The deceased was the resident of Kamakhyaguri. Bhutu Das had gone missing from his camp and on enquiry, he came to know that he was taken away by his brother in law Sunil Barman. The dead body of Bhutu Das was found on the bank of river Aye. He did not see the dead body.
21. In his cross examination, P.W-3 replied that there were 9-12 labourers who used to stay permanently in his Dhaligaon Camp. Two days after Bhutu Das had gone missing he came to know about it. He informed the police immediately after getting the information. He did not know Sunil Barman.
22. P.W-4 is Ukil Barman. From his deposition, it reveals that the deceased Bhutu Das was his elder son in law and accused Sunil Barman is his second son in law. The incident occurred in the year 2007. Bhutu Das did the work of electric line under the contractor Brahma and stayed in a camp at Kukurmari under Dhaligaon P.S. His second son in law Sunil Barman used to consume liquor and torture his daughter Parvati and he had taken her to his house one month prior to the incident. Sunil always made phone call to Parvati and asked her to return back home. Sunil also made phone calls to him asking him to take his daughter to his house but his daughter did not want to go there. After 6-7 days elder brother of Bhutu Das rang him up asking him whether Bhutu Das had come to his house. When he replied in the Page No.# 9/20 negative, then the elder brother of Bhutu Das told him that three days back Bhutu Das had been taken away by his brother-in-law Sunil Barman and he had not come back. After 3-4 days Ranjit Barman, the elder brother of Bhutu Das informed him over phone that the dead body of Bhutu Das was recovered from the bank of river Aye. This witness also stated that the accused Sunil Barman confessed before him that he had killed Bhutu Das.
In his cross examination P.W-4 replied that they apprehended Sunil Barman out of suspicion. Later he made a confession. After Sunil had been apprehended Brahma slapped him. Thereafter, Sunil made his confession.
23. P.W-5 is Kiran Singh Brahma. He deposed in his evidence that one day about 7-8 years back at about 3-4 PM he was playing carom in front of his house at Viran Gaon. Then the SDO Chirang came there and took him to the bank of river Aye in a vehicle. Accused Sunil Barman was also in the vehicle. Showing the place of occurrence in the bank of river Aye, Sunil Barman told that he had killed a person. Though he uttered the name of the person but he did not remember the name.
24. P.W-6 Kharga Mohan, did not say anything about the incident.
25. PW7 is Charubala Barman and PW8 is Bhola Roy, who are the parents of the accused. From their deposition, it reveals that, their son Sunil Barman married a girl from Bengal and they led conjugal life for three years. Police apprehended their son in connection with the murder of Bhutu Das. When their son went to receive a phone call of his wife he was apprehended. P.W-8 stated that he heard that his son Sunil Barman had killed his brother-in-law near the bank of river Aye.
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26. P.W-9 is Dr. Nikunja Das who had conducted autopsy on the dead body. He deposed in his evidence that on 23/05/2007 he was posted at R N B Civil Hospital, Kokrajhar. On that day he had performed post mortem examination on an unidentified dead body of about 30 years old, male, on police requisition in connection with Dhaligaon P.S. GDE No- 695 dated 22/05/2007 and on examination he found the following -
a. Rigor Mortis present in both upper and lower limbs. b. Sign of Nasal bleeding and bleeding from mouth present. c. Black eye bilateral present (more on left side). d. Bruises and swelling seen over the face and head. e. Abrasion over the face left side. f. Clotted blood seen beneath the scalp, skin of face. g. Clotted blood seen inside the scalp.
Doctor opined that death was due to shock and haemorrhage following head injury caused by blunt force impact which was homicidal and antemortem in nature.
27. P.W-10 is Sukur Ali Ahmed who performed inquest on the dead body of the deceased. He deposed in his evidence that on 23/05/2007 he was working as an Executive Magistrate at Chirang. On that day he had conducted inquest on one unidentified dead body which was recovered by police in connection with Dhaligaon P.S. GDE no -695 dated 22/05/2007 in presence of the witnesses. The dead body was of a male person. At the time of inquest he had noticed marks of injury on the face and head of the dead body.
In his cross examination, P.W-10 has clarified that in his inquest report he had Page No.# 11/20 mentioned the date of recovery of the dead body as 22/03/2007 which was a bonafide mistake.
28. P.W-11 is Ramesh Chandra Roy who was present when the inquest on the dead body of the deceased was held.
29. P.W-12 is Manjit Sharma, the investigating officer in the case. He deposed in his evidence that on 22/05/2007 he was working as OC of Dhaligaon PS in Chirang District. On that day, at about 6:15 PM one Buddha Dev Mushahari of village Viran Gaon came to the police station and informed verbally that a male dead body was lying on the bank of river Aye. On the basis of the said information he recorded Dhaligaon P.S. GDE no - 695 and entrusted ASI Upendra Nath Barman to take necessary steps for conducting inquest on the dead body and post mortem examination. Accordingly, inquest on the dead body of the deceased was conducted and thereafter, the dead body was sent for post mortem examination. Subsequently, on 01/06/2007 one Ranjit Das lodged an FIR stating that his younger brother Bhutu Das was taken by accused Sunil Barman deceitfully from the labour camp at Kukurmari and thereafter killed. The dead body was recovered on the bank of river Aye. Having seen the photograph of the dead body at the police station, he could identify that it was his missing brother Bhutu Das. On the basis of the said FIR a case was registered vide Dhaligoan P.S. case no- 49/2007 u/s 302 IPC against the accused Sunil Barman and he himself took up the case for investigation. In course of investigation, he had visited the place of occurrence and drew sketch map thereof vide exhibit 4. He had examined the witnesses and recorded their Page No.# 12/20 statements u/s 161 Cr.P.C and then he arrested the accused Sunil Barman in connection with the case. On interrogation Sunil had confessed his guilt that he killed the deceased by assaulting him with a stone and had agreed to show the place where he killed the deceased. Accordingly, he along with the Executive Magistrate, Chirang, Mridul Mahanta went to the place of occurrence, as led by the accused and identified the place of occurrence as shown by the accused. At the time of admitting his guilt at the place of occurrence, Karan Singh Brahma, Kharga Mohan Brahma and Hari Charan Brahma were present and he had also recorded their statements. Thereafter, on his transfer, he had handed over the case diary to his successor.
30. P.W-13 is another investigating officer, Pradip Kumar Bora. He has deposed in his evidence that on 20/11/2011 he was working as officer-in-charge, Dhaligaon PS. On that day, he received the case dairy of this case from his predecessor Manjit Sharma to complete the investigation of the case. During investigation, he collected the post mortem examination report of the deceased and on the basis of the investigation done by his predecessor having found the prima facie case against the accused Sunil Barman, he had submitted charge sheet against the accused u/s 302/201 IPC vide exhibit-5.
31. It is an admitted fact that there is no eyewitness to the incident. The entire case rests on circumstantial evidence. The trial court concluded that there is sufficient material on record to show that the deceased and the appellant were last seen together before the death of the deceased and the accused had made extra Page No.# 13/20 judicial confession after the occurrence before P.W-1, P.W-2 and P.W-4 saying that he had killed the deceased. The circumstances which the prosecution has proved against the accused to implicate him in the alleged occurrence was that he was last seen with the deceased on the morning of the date of occurrence when he came to the camp at Dhaligaon where the deceased Bhutu Das was staying and took the deceased away with him and the accused made extra judicial confession before P.W-1, P.W-2 and P.W-4.
32. There can be no doubt that the present case is one of circumstantial evidence. There is no witness to the commission of the crime. Thus, there is a definite requirement of law that a heavy onus lies upon the prosecution to prove the complete chain of events and circumstances which will establish the offence and would undoubtedly only point towards the guilt of the accused. A case of circumstantial evidence is primarily dependent upon the prosecution story being established by cogent, reliable and admissible evidence. Each circumstance must be proved like any other fact which will upon their composite reading, completely demonstrate how and by whom the offence had been committed.
33. Undoubtedly, conviction can be based solely on circumstantial evidence. However the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstance from which the conclusion of guilt is to be drawn should be fully established. The facts so establish should be consistent Page No.# 14/20 only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstance should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to lead 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. (vide Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 ; Krishan vs. State represented by Inspector of Police, (2008) 15 SCC 430; Wakkar & another vs. State of Uttar Pradesh, (2011) 3 SCC 306).
34. We may also make a reference to a decision of the Hon'ble Supreme Court in the case of C. Changa Reddy vs. State of Andhra Pradesh reported in (1996) 10 SCC 193 wherein it has been observed that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
35. In the case of Trimukh Maroti Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681, it was observed as under -
"In the case in hand, there is no eye witness of the occurrence and the case of prosecution rests on circumstantial evidence. The normal principle in a case based Page No.# 15/20 on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused and that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence"
The same principles were reiterated in Sunil Clifford Danial vs. State of Punjab reported in (2012) 11 SCC 205, Sampath Kumar vs. Inspector of police, Krishnagiri reported in (2012) 4 SCC 124 and Mohammad Arif @ Ashfaq vs. State (NCT of Delhi) reported in (2011) 13 SCC 621 and a number of other decisions.
36. Reverting back to the present case, It is noticeable that the learned Trial court convicted the appellant on the evidence of PW1 that the deceased was last seen with the appellant on 22/05/2007. According to P.W-1, on the date of the incident i.e. on 22/05/2007, at about 9 AM accused Sunil Barman came to Dhaligaon camp where he along with his deceased brother Bhutu Das was staying and took his brother to his house near Aye River. But his brother did not come back on that day. He came to know from police that on the same day they found one dead body on the bank of river Aye. It is seen that there was no cross examination on the point of last seen theory except a suggestion put by the defence that the witness has stated falsely that accused Sunil had taken his brother away on the morning of 22/05/2007. It also Page No.# 16/20 appears from the evidence on record that except P.W-1 no other witness has stated that he had seen the accused Sunil Barman took the deceased away from the camp.
37. Undoubtedly, the last seen theory is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. It is well settled by the Hon'ble Supreme court that it is not prudent to base the conviction solely on last seen theory. Last seen theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
38. In the instant case, admittedly, the dead body of the deceased was recovered on the bank of river aye, which is an open place accessible to all. According to P.W-1 he had seen the accused came to Dhaligaon camp at about 9.00 A.M. in the morning hour on 22.05.2007 and the dead body of the deceased was recovered at night from the bank of river aye. Nobody knows what had happened during the gap of almost 10/12 hours. Unfortunately, the post-mortem report of the deceased shows no light as to wherefrom the probable time of the death of the deceased can be determined.
39. In the case in hand, there is no evidence led by the prosecution to establish that the deceased was murdered around noon time and the deceased was seen with the accused at the place of occurrence. The time gap when PW1 saw the accused came to Dhaligoan camp and took away the deceased and when the dead body of the deceased was recovered was ranging to more than 10 to 12 hours.
Page No.# 17/20 Thus, it cannot be said that the time gap is small and this makes the last seen theory redundant. Thus, the prosecution was failed to prove the circumstances of last seen against the accused/appellant.
40. In the case of Bodhraj vs. State of Jammu and Kashmir (2002) 8 SCC 45, it was observed that -
" the last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is so small that possibility of any person other than the accused being the author of the crime being impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
41. In the case of Lakhan Pal vs. State AIR (1979) SC 1620, it was propounded by the Hon'ble Supreme court that the mere fact that the accused and the deceased were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased.
42. The Hon'ble Supreme Court in the case of Harendra Narayan Singh vs. State of Bihar reported in AIR 1991 SC 1842 observed that if two views are possible on the evidence adduced in the case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the court should adopt the later view favourable to the accused.
43. The Court while dealing with a circumstance of extra-judicial confession must Page No.# 18/20 keep in mind that it is a very weak type of evidence and require appreciation with great caution.
44. In the case of State of Rajasthan Vs. Raja Ram reported in (2003) 8 SCC 180, it was observed that extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction if it passes the test of credibility.
The same principle has been rendered in the case of Kulvinder Singh and another Vs. State of Haryana reported in (2011) 5 SCC 258.
45. Regarding extra judicial confession, P.W-1 has stated that when he reported the incident to his contractor, he managed to capture Sunil Barman and Sunil Barman in front of them confessed that he had killed Bhutu Das by assaulting him on his head with a stone. According to P.W-2, since the day of incident, accused Sunil Barman had also absconded. Later on, wife of the deceased made a phone call to Sunil Barman and told him that she would marry him and asked him to come to Dangtal market from Salmara and when the accused came there, then they apprehended Sunil Barman and handed him over to police.
46. This witness also stated that the accused/appellant has confessed before them that at the time of his marriage he had chosen Bhutu Das's wife to marry but she got married to Bhutu Das as he was a local boy. And in order to solemnize second marriage with his own sister in law, (wife of Bhutu Das) he had killed Bhutu Page No.# 19/20 Das. But from cross examination of P.W-2, it reveals that after apprehending Sunil Barman, they assaulted him. P.W-3 stated that Sunil Barman had confessed before his father in law that he had killed Bhutu Das by striking him with a boulder. P.W-4 i.e. father in law of the deceased also admitted that the appellant confessed before him that he had killed Bhutu Das but subsequently, P.W-4 also replied in his cross examination that they apprehended Sunil Barman out of suspicion but later he made a confession. After Sunil had been apprehended the contractor Brahma slapped him. Thereafter, Sunil made his confession. At this juncture, we should pause for a moment by acknowledging the fact that the extra judicial confession if made at all by the accused/appellant is not a voluntary one.
47. In respect of absconding of the accused/appellant, the trial Court has considered the circumstance of abscondence of the appellant as a circumstance on the basis of which an adverse inference can be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest or harassment (vide Matru @ Girish Chandra Vs. State of U.P. AIR 1971 SC 1050; Paramjeet Singh @ Pramma Vs. State of Uttarakhand AIR 2011 SC 200; and Rabindra Kumar Pal @ Dara Singh Vs. Republic of India (2011) 2 SCC 490).
Thus, in view of the law referred to hereinabove, mere abscondence of the Page No.# 20/20 appellant cannot be taken as a circumstance which give rise to draw an adverse inference against him.
48. On a close look at the impugned Judgment of the trial court, we find that the accused/appellant had been convicted and sentenced on the basis of suspicion. It appears from the materials on records that the appellant and the deceased have been the close relatives and friends.. In the instant case, there can be no doubt that the circumstances raise a serious suspicion against the appellant, but, suspicion, however grave it may be, cannot take the place of proof and that being the position the benefit of doubt must go to the appellant. The prosecution, in our opinion, is not able to establish that the chain of circumstance is complete. The circumstances are not consistent with the hypothesis of the guilt of the appellant and inconsistent with his innocence.
49. In the result, appeal is allowed. The impugned judgment dated 21/12/2016 passed by the learned Sessions Judge, Chirang, Kajalgaon in Sessions Case No. 14(D)/2015 is set aside. The accused/appellant Sunil Barman is acquitted of the charge of offence punishable u/s 302 IPC. The appellant is in jail. He be released forthwith unless his detention is required in any other case.
50. LCR be returned back.
JUDGE JUDGE Comparing Assistant