Gauhati High Court
Bisheswar Badri @ Khetrapal vs State Of Assam on 14 June, 2002
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. True it is that a crime must not go unpunished, but in its anxiety to do justice, Court cannot admit inadmissible evidence nor can Court rely on unreliable evidence. This case reminds us of these golden principles of criminal jurisprudence.
2. This appeal arises out of the judgment and order, dated 17,4.2001, passed by learned Sessions Judge, Sibsagar, in Sessions Case No. 15(S-C)/1996, convicting the accused-appellant under section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000 and in default, to undergo rigorous imprisonment for a further period of 3 (three) months.
3. The prosecution's case against the appellant, as unfolded at the trial, may, in brief, be stated as follows :
Deceased Binty Khetrapal was wife of the appellant, namely Bisheswar Baori @ Khetrapal and both of them were employees of Teok Tea Estate. On 16.5.1995, at about 8A.M., while deceased was going to work, she was given blows with a dao (M.Ext. 1) by the appellant seriously injuring her. Since it was the usual time for the employees of the tea Estate to go for their work, some of the female workers of the garden who, too, were proceeding towards their respective places of duty, witnessed the gruesome assault on Binty. On witnessing the occurrence, when the said female workers started screaming, male workers including the appellant's younger brother, Gaurange Khetrapal, reached the place of occurrence. A vehicle was arranged, but while the injured was being shifted to the hospital, she breathed her last. Gouranga Khetrapal aforementioned lodged a written Ejahar (Ext. 1) at Sonari Police Station and treating the same as First Information Report, Sonari P. S. Case No. 75/95 under section 302 IPC was registered against the appellant. Police held inquest over the said dead body and prepared inquest report (Ext. 9). Police also visited the place of occurrence and recorded statements of witnesses. Statements of some of the witnesses were also recorded by the Magistrate under Section 164 Cr. PC. Postmortem examination was conducted on the said dead body. On 19.5.1995, the appellant surrendered at the said Police Station with a dao (M.Ext. 1), whereupon the appellant was arrested and weapon was seized vide seizure list (Ext. 8). On completion of investigation, police laid charge sheet against the appellant under section 302 IPC.
4. During trial, when a charge framed under section 302 IPC was explained to the appellant, he pleaded not guilty thereto.
5. In all, prosecution examined 10 (ten) witnesses including the Investigating Officer. In his examination under section 313 Cr.PC, the appellant denied that he had killed his wife, his case being that of total denial. No evidence was, however, adduced by the defence. On conclusion of the trial, learned Trial Court found the appellant guilty of the charge framed against him. The appellant was accordingly convicted and sentenced as mentioned hereinabove. Hence, this appeal.
6. The moot point, which falls for determination in the present appeal, is this. Whether the finding of guild arrived at by the learned Trial Court is justified on the basis of the evidence on record and the law relevant thereto ?
7. We have carefully perused the record including the impugned judgment and order. We have heared Mr. B.P. Kataky, learned counsel for the appellant, and Mr. P. Bora, learned Additional P.P., Assam.
8. Upon hearing of the appeal and on perusal of record, it transpires that PW 1 (Sri Gauranga Khetrapal), informant of the case, was not an eye witness. PW 3 (Sri Dilip Gosain) is merely a scribe of the FIR, PW2 (Smti Lakhi Pradhan), PW 4 (Muna Ghatowar), PW 5 (Smt. Sobha Bakti) and PW 6 (Jamuna Ghatowar) were all examined as alleged eyewitnesses, but except PW 2, other witnesses were declared hostile and cross-examined by prosecution. PW 7 (Dr. B.C. Saikia) is the doctor, who performed autopsy, PW 8 (Sri L. Hazarika) is the Judicial Magistrate, who recorded the statement of PWs 2, 4, 5 and 6. PW 9 (Shri J.D. Bhuyan) is a witness to the seizure of alleged weapon of offence and PW 10 is the Investigating Officer of this case.
9. We may, first, deal with the evidence of PW 7 (Dr. B.C. Saikia). According to his evidence, on 16.5.1995 at 4.15 P.M., he performed postmortem examination on the dead body or deceased Binty Khetrapal and found the following injuries :
"(1) One deep cut injury with sharp-cutting weapon in the right cheek-size 7 cms x 1.5 cms.
(2) One deep cut injury with sharp-cutting weapon in the right parietal region of the size-5 cms x 1 cm x .Bone-deep.
(3) One oblique cut injury in the neck from mid-line to the lower border of the mandible of the left side of the size - 7 cm x 1 cm x bone-deep.
(4) Multiple are of cut injury in both the hands.
(5) 2 (two) deep cut injuries in the scapula region on both the sides. The right side injury is of the size of 5 cm x 1 cm x 5 cm and the left side injury is of the size of- 7 cms x 1 cm x 05 cms.
Cranium and Spinal Cannel:
One deem cut injury in the scalp over the right paretal region of the size of 5 cm x 1 cm x Bone-deep."
10. PW 7 aforementioned has also deposed that all the injuries mentioned were ante mortem in nature and the same were caused by sharp cutting weapon, such as, dao (material Ext. 1), PW 7 has opined that the death was caused due to shock and haemorrhage as a result of the injuries sustained by the said deceased. PW 7 has also opined that the injuries were sufficient to cause death of a person in the ordinary course of nature. In his cross-examination, PW 7 has clarified that the death might have been caused instantaneously.
11. We notice that the finding of PW 7 and his opinion with regard to the cause of death and also the nature of weapon, which might have been used in the present case, have remained entirely undisputed. This apart, we notice noting inherently incorrect of untrue in the evidence given by PW 7 and/or the opinions expressed by him. We have, therefore, no hesitation in concluding that injured Binty met with her death as a result of shock and haemorrhage caused due to aforementioned multiple injuries sustained by her with a sharp cutting weapon like dao.
12. Keeping in view the above aspects of the medical evidence on record, we, now, come to the evidence of PW 2 (Lalchi). According to her evidence, she knows the accused, who had married Binty as his second wife.
13. As regards the occurrence, PW 2 has deposed that on the day of occurrence, at about 8 A.M., Binty was hacked near Sections 15 and 17 and that both these sections are separated by Khal (Drain) which was used as path. PW 2 has clarified in her evidence that Binty was hacked on this path. PW 2 has also deposed that at the time of occurrence, she was going to her work along with Sobha (PW 5), Mina (PW 4) and Jamuna (PW 6). Mina and Jamuna were proceeding ahead of her and, suddenly, Mina and Jamuna raised alarm and when she asked them what the matter was they shouted, "MAIKI (BINTY) TUK TAAR MOTA TOYE KEETI LAY", whereupon she saw Binty lying with bleeding injuries, she felt scared and raised alarm, male labourers from section No. 17 came to spot, but Binty was not found in a position to speak. It is in the evidence of PW 2 that Gauranga (PW 1) also came there and Binty was removed to Garden Hospital in a vehicle and sometime thereafter, police came and she was examined by police.
14. Broadly in tune with the evidence of PW 2, PW 4 (Mina Ghatowar) has deposed that she knows the accused, who works in Teok Tea Estate, deceased Binty was wife of the accused, who was killed about a year back and that she knows Lakhi Pradhan (PW 2), Sobha Baku" (PW 5) and Jamuna Ghatowar (PW 6) too.
15. As regards the occurrence, PW 4 has deposed that on the day of occurrence at about 8 A.M., while she was proceeding for plucking tea leaves along with PW 2, PW 5 and PW 6, she saw Binty lying injured on a path near the drain. She also clarified in her evidence that she knew nothing else.
16. Close on the heels of the above evidence of PW 2, and PW 4, PW 5 (Smt. Sobha Bakti) has deposed that the accused person hails from the line in which they also live and though she does not know his name, she knew his wife, Binty, PW 5 has also deposed that she works as a leaf plucker in the tea garden and that Mina (PW 5), Jamuna (PW 6) and Lakshmi (PW 2) also work as leaf pluckers with her and so did late Binty.
17. Regarding the occurrence, PW 5 has deposed that at about 8 A.M., on the day of occurrence, while she (PW 6) along with Lakshmi (PW 2), Mina (PW 4) and Jamuna (PW 6) was going to pluck leaves, she found Binty lying dead in drain No. 15, she saw injuries and blood on Binty's person and having seen her dead she got scared.
18. On coming to the evidence of PW 6 (Jamuna Ghatowar), we notice that she has deposed that at the time of occurrence, she used to pluck leaves in the tea garden, she knows accused, who resides in Line No. 13, where she too resides and she knew Binty, who was wife of the accused.
19. Narrating the occurrence, PW 6 has deposed that at about 8 A.M., on the day of occurrence, when she was going to pluck leaves along with Lakshmi (PW 2), Mina (PW 4) and Sobha (PW 5), she saw Binty's dead body lying in drain number 15 of the garden and, out of fear, she cried out, the menfolk arrived there. She has clarified in her evidence that she did not see she had killed Binty.
20. While dealing with the evidence of PWs 2, 4, 5 and 6, it is important to note that PWs 4, 5 and 6 were declared hostile and cross-examined by prosecution. While PW 2 admitted that the statements attributed to have been made by her to the Investigating Officer (PW 8) and Magistrate (PW 10) were indeed, made by her, the remaining three witnesses, namely, PWs 4, 5 and 6, during cross-examination by prosecution, in tune with each other, denied to have stated before PW 8 and PW 10 what were attributed to them as their statements. Notwithstanding, however, such denial, PW 8, who is a Judicial Magistrate, has proved that on the prayer made by the Investigating Officer (PW 10), he did record, on 16.5.1995, statements of all the witnesses aforementioned under Section 164 Cr.PC and Exts. 2, 3, 6 and 5 are the statements of PWs 2, 4, 5 and 6 respectively.
21. In view of the fact that the above statements have been made, on oath, under Section 164 Cr.PC, and PW 8 has no axe to grind in this case and in view of also of the fact that while PW 8 gave his evidence and produced the statements aforementioned, neither prosecution nor the defence disputed the correctness of the statements attributed to PWs 2, 4, 5 and 6, as reflected from Exts. 2, 3, 6 and 5 respectively, we have no hesitation in concluding that Exts. 2, 3, 6 and 5 do contain statements of PWs. 2, 4, 5 and 6 respectively made under Section 164 Cr.PC before the Magistrate (PW 8).
22. A close look into the above statements made under Section 164 Cr.PC shows that all these witnesses have stated to the effect that on the day of occurrence, at about 8 A.M., when they were going to Line No. 15, they saw the appellant giving blows on his wife, Binty, with dao and Binty falling in Drain No. 13 and, on witnessing the same, they raised hullah and male labourers working nearby arrived at the place of occurrence.
23. We have closely examined the impugned judgment and we find that the learned Trial Court relied on the previous statements of PWs 2, 4, 5 and 6 recorded under Section 164 Cr.PC to base conviction of the appellant under section 302 IPC. Did law permit the learned Trial Court to adopt such a course and rely on such previous statements of all these four alleged eyewitnesses to convict the appellant ? It may be pointed out that neither statement recorded under Section 161 Cr.PC nor the statement recorded under Section 164 Cr.PC can be treated as substantive evidence.
24. While the previous statement recorded under Section 161 Cr.PC can be used only for the purpose of proving contradictions by prosecution, a statement recorded under Section 164 Cr.PC may be used for contradiction as well as, at times, for corroboration. If a witness resiles from his/her previous statement, he or she may be punished for perjury, i.e., for making or giving false evidence on oath before the Magistrate, but, as a corollary, it cannot be held that the statement recorded under Section 164 Cr.PC is the truthful version of the occurrence. Reference maybe made in this regard to (1972) 3 SCC 280 (Ram Kishan Singh v. Harmit Kaur & Another).
25. In the case at hand, PWs 4, 5 and 6 denied that they had stated before the Magistrate what is attributed to them. In the face of such denial, there was no substantive evidence left before the learned Court below to hold that these three women were eye witnesses to the occurrence.
26. Similarly, though PW 2 did admit that Ext. 2 was her statement made before the Magistrate, she, nowhere, admitted that the statement so made by her was true or did she admit that what she had stated before the police was true. Far from supporting the truthfulness of her said statement, PW 2 asserted, in no uncertain words, that she had not seen the accused assaulting his wife and fleeing away from the place of occurrence. Thus, even the previous statement of PW 2 recorded under Section 164 Cr.PC can, by no means, be treated as substantive evidence and in the absence of even an iota of substantive evidence on record given by her that she had witnessed the occurrence and/or what she had stated before the Magistrate was true, there remained nothing in the evidence of PW 2 to show that she was an eye witness to the occurrence.
27. We have noticed that the learned Trial Court has referred to AIR 1980 SC 628 (Dhanbal v. State of Tamil Nadu) for wholly relying on the witnesses' statements recorded under Section 164 Cr.PC treating the same as substantive evidence. Reliance so placed by the learned Trial Court on Dhanbal's case (supra) is incorrect. The case, so relied upon, was a case conducted under the old Cr.PC and in this case, statements of witnesses were recorded under Section 164 Cr.PC. In the committal proceeding, the witnesses gave evidence sticking to their said statements. In the trial before the Sessions Court, when the witnesses admitted to have given the evidence, in question, in the committal proceeding, the evidence given by the witnesses in the committal proceeding was transposed in extenso to the record of the Sessions Court under section 288 Cr.PC. This procedure was objected to on the ground that the procedure applied was wrong and it made the evidence anadmissible. The objection riased by the defence becomes clear from the following observations in Dhanabal (supra) :-
"The plea of the learned counsel is that the evidence market under section 288 is inadmissible as it was only read in full to the witnesses and had not been put to them. The procedure that was adopted in the Sessions Court was that when the witnesses started giving a version hostile to the prosecution, he was asked whether he was examined in the Committal Court. The evidence marked as given by him in the Committal Court was read over to the witnesses by the Public Prosecutor. The witnesses admitted that he had given evidence as found in the Exh. And that he had signed it. The evidence given in the Committal Court was transposed to the record of the Sessions Court under section 288 of the Code of Criminal Procedure."
28. Repelling the above objection of the defence, the Apex Court laid down as follows :-
"It is thus clear from the authorities referred to above that the requirements of section 288 would be fully complied with if statements of the witnesses are read in extenso to them and they admit that they have made these statements in the committal Court. The required procedure has been followed in this case and the attack made by the learned counsel has to fall."
29. Dealing with the question as to whether a witness whose statement has been recorded under Section 164 Cr.PC, out of apprehension that he/she might resile from their version, is inherently unreliable, the Apex Court, in Dhanabal (supra), observed as follows :-
"The 164 statement that is recorded has the endorsement of the Magistrate that the statement had been made by the witness. The mere fact that the Police had reasons to suspect that the witnesses might by gained over and that it was expedient to have their statements recorded by the Magistrate, would not make the statements of the witnesses thus, recorded, tainted. If the witness sticks to the statement given by him to the Magistrate under Section 164 Cr.PC no problem arises. If the witness resiles from the statement given by him under Section 164 in the Committal Court, the witness can be cross/ examined on his earlier statement. But, if he sticks to the statement given by him under Section 164 before committal enquiry and resiles from it in the Sessions Court, the procedure prescribed under section 288 Cr.PC, will have to be observed. It is for the Court to consider taking into account all the circumstances including the fact that the witness had resiled In coming to the conclusion as to whether the witness should be believed or not. The fact that the Police had Section 164 statement recorded by the Magistrate, would not by itself make _ his evidence suspect."
30. That in view section of 157 Evidence Act, a statement under Section 164 Cr.PC can be used for corroboration also is clear from the following observation made in Dhanabal (supra) :-
"Section 157 of the Evidence Act makes it clear that the statement recorded under Section 164 of the Cr.PC can be relied on nor corroborating the statements made by the witness in the Committal Court. This Court has expressed its view that though the statements made under Section 164 of the Cr.PC is not evidence, it is corroborative of what has been stated earlier n the Committal Court vide (1971) 1 SCR 56. The High Court was right in relying on the statement of the witnesses under Section 164 as corroborating their subsequent evidence before the Committal Court." (Emphasis is added by us)
31. The Apex Gout has, thus, laid down that the statements made by the witnesses under Section 164 Cr.PC could be used for corroborating their evidence given in the committal proceedings. In other words, there has to be substantive evidence on record to enable the Court to use the previous statements of the witness, recorded under Section 164 Cr.PC, for the purpose of corroboration. The Apex Court nowhere laid down in Dhanabal's case (supra) that statements under Section 164 Cr.PC is substantive evidence. Such haphazard and superficial reading of judicial precedents is highly undesirable.
32. We have noticed-with great anxiety the fact that the learned Sessions Judge has observed in the impugned judgment that a witness's statement under Section 164 Cr.PC needs to be given same importance as is given to a confessional statement of the accused under Section 164 Cr.PC because even retracted confession, recorded under Section 164 Cr.PC, can be made basis for conviction. These observations of the learned Judge are completely inconsistent with the concept of criminal law relating to confession.
33. It is, no doubt, true that judicial confession of accused is recorded under Section 164 Cr.PC. A confession in nothing but admission of guilt by the accused or admission of facts, which constitute the offence. A confession, if voluntary, is made out of repentence and remorse for the act done. In such a mental state, a person will admit only what is true. If a person voluntarily confesses, he has no reason to confess facts, which are untrue or false. Hence, if the confession is found to have streaks of falsehood, then, it is no confession at all. In order to ensure that the confession is wholly voluntary, section 24 of the Evidence Act lays down that if it appears to the Court that the confession has been made out of inducement, threat or promise, such a confession will not be admissible in evidence. Thus, the Court need not look for proof that the confession is involuntary. Even if probabilities exist that the confession is involuntary, the Court is bound to reject the confession as unreliable.
34. To ensure that the confession made is voluntary and true, a Magistrate, who records judicial confession under, Section 164 Cr.PC, is required to take all possible measures to make the accused feel that he is completely free to make or not to make confession and that if he makes a confession, it may be used against him. After a large number of precautions adopted, the Magistrate furnishes a memorandum certifying that according to him, the confession made is voluntary and true. It is only then that the confession, depending, of course, on the facts and attending circumstances of a given case, can be relied upon.
35. On the contrary, when a statement of a witness under Section 164 Cr.PC is recorded, no steps are taken and no query is made by the Magistrate, who records the statement, to ensure that what the witness has come forward to state is voluntary and true.
36. Situated thus, it is wholly incorrect to contend that a witness's statement under Section 164 Cr.PC shall stand on the same footing as does the confession of the accused.
37. What, thus, crystallises from the above discussion is that in their previous statements PWs 2, 4, 5 and 6 described the occurrence of assault on Binty at the hands of the appellant as eye witnesses. However, all these witnesses resiled from their previous statements and asserted in the Court to the effect that they had not witnessed the occurrence, but that they had only seen Binty lying hacked. Though, as indicated hereinabove, what they had stated before the Magistrate might have been true, yet in the absence of any admission on their part that what they had stated before the Magistrate was true and, at the same time, in the absence of any admission on their part, at the trial, that they had witnessed the appellant giving blows on his wife, Binty, it becomes clear that there was no substantive evidence on record before the learned Trial Court to show that these four witnesses were eye witnesses to the occurrence. In the absence of such substantive evidence, question of using their previous statements recorded under Section 164 Cr.PC as sole basis of conviction was wholly illegal. The course so adopted by the learned Trial Court is completely against the provisions of law and consistent judicial pronouncements.
38. Keeping in view the fact that the evidence given by PWs 2, 4, 5 and 6 do not furnish any substantive evidence against the appellant and that the evidence of these four prosecution witnesses given in the Court do not show that they had witnessed the occurrence of assault on Binty at the hands of the appellant, we, now, turn to the evidence of the younger brother of the appellant, namely, Gauranga Khetrapal (PW 1), who is the informant of this case and on the basis of whose information, the prosecution case against the appellant commenced.
39. As regards the occurrence, PW 1 has deposed that on the day of occurrence at about 8 A.M., when he was going to his work in section No. 17 of Teok Tea Estate along with others, they heard hull raised by female labourers working in Section No. 15, whereupon he along with other male labourers came running to Section 15 and, on arriving there, found Binty lying seriously injured and bleeding on the path leading to Section 15. It is the evidence of PW 1 that female labourers working with Binty were shouting that her husband had fled away after hacking her.
40. PW 1 has also deposed that he, then, went to garden office, brought a vehicle and when they were carrying Binty to garden hospital, Binty died. PW 1 has clarified that when he found Binty lying injured, she was not in a position to speak. He has also clarified that Binty used to work in the said Tea Estate.
41. PW 1 has further deposed that he, then, came to one Dilip Gahain, got one Ejahar written, Ext. 1 being the Ejahar, police took up investigation, they took the charge of the dead body and forwarded the same to Sibsagar for post-mortem examination.
42. It is in the evidence of PW 1 that Binty was the second wife of the accused and that at the time of occurrence, first wife of the accused used to live separately.
43. In his cross-examination, PW 1 has clarified that he had found the accused and Binty having good relation. In his further cross-examination, PW 1 has candidly admitted that he can not say the names of women folks, who told him that it was accused, who had cut Binty.
44. PW 1 has also clarified, in his cross-examination, that the place, where Binty was found lying, was not visible from Section 15 or Section 17.
45. While considering the evidence of PW 1, it is important to note that learned Trial Court has observed that notwithstanding the fact that the female labourers working with Binty have not supported the claim of PW 1 that they were shouting that Binty's husband had fled away after cutting (hacking) her, evidence given by PW 1 as to what he had been told by these witnesses is not hearsay.
46. It needs to be carefully noted that while dealing with a piece of evidence, which is regarded as hearsay, the Courts must bear in mind that there is a difference between factum of an information and truthfulness/veracity of such information. In a given case, if the object is to merely establish that a statement was made, it may not be hearsay, but if the object is to prove that what was started was true, then, it may become be hearsay. Thus, when "x", an eye witness of an occurrence of murder, comes to a Police Station and reports the occurrence to a police office, the evidence given by the police officer, at the trial, that he was given such an information is not hearsay if the object is merely to prove that such a report was, indeed, received by the police officer, but if the object is to prove that what the police officer was reported was true, then, the police officer's evidence as to what he was reported by "x" would be hearsay unless "x" appears as a witness at the trial and deposes not only that he had so reported the occurrence to the police officer, but also that what he had reported was true as he had witnessed the occurrence himself. Reference may be made to AIR 1961 MP 45, AIR 1983 All 87 and 1983 CrLJ 127 (SC) in this regard.
47. The evidence given by PW 1 that female workers were shouting that Binty's husband had cut her may not be hearsay, if the Court is to determine if PW 1 had heard such utterances, but if the Court is required to determine as to whether what PW 1 had heard was true or not, then, the evidence given by PW 1 is hearsay and ought to have been held as hearsay inasmuch as he has no personal knowledge if the accused had really hacked Binty and for proving that his information is correct, PW 1 depend on the evidence of the female workers, none of whom have come forward to say that they had witnessed the occurrence of assault on Binty at the hands of the appellant and/or that they had reported the occurrence to PW 1.
48. In short, thus, the evidence of PW 1 does not enable the Court to hold, on the basis of what he had heard at the scene of occurrence, that the appellant was the one, who had killed Binty.
49. As far as the remaining witnesses are concerned, their evidence does not help.the case of the prosecution at all inasmuch as PW 3 is merely a scribe of the FIR and PW 9 is a rickshaw-puller, whose evidence is that he knew the appellant, he heard from people of his line that the appellant had killed his wife, Binty, by hacking her and as he learn that the appellant had gone to the Police Station, he went to Sonari Police Station and saw the appellant, where the police took his signature on a paper, but he did not know whether police had seized the Dao (Katari). This witness too was declared hostile and in his cross-examination by prosecution through PW 9 denied, Investigation Officer (PW 10) has proved that PW 9 stated before him, on 16.5.1995, while pulling rickshaw, he saw a gathering and, then, he came to police station and could learn from them that his neighbour Bisweshwar Bawri (i.e., the appellant) had killed his wife and fled away and that when he went to the police station, accompanied by one Guno, he saw the appellant entering into the police station with a Dao (Katari) in his hand, he and the said Guno, on being asked by police, put their signatures on papers, but the contents were not read over the them.
50. In view of the fact that PW 9 resiled from his said previous statement recorded under Section 161 Cr.PC, it is clear that his said statement is neither substantive evidence nor can his said previous statement be used for corroboration (Reference may be made to Remeshwar Singh v. State of J&K (AIR 1972 SC 102). The evidence, thus, of PW 9 does not help the case of the prosecution.
51. So far as the Investigating Officer (PW 10) is concerned, he has deposed that on 19.5.1995 at about 8 P.M., accused surrendered before Sonari Police Station with a "Kalam Katari" (a sharp edged weapon), he (PW 10) arrested the accused and seized the said Kalam Katari in presence of witnesses as per Ext. 8.
52. Apart from the fact that the evidence of PW 9 does not show that the said Kalam Katari was seized from the possession of the accused, there is not even an iota of evidence on record to show that it was the said Kalam Katari with which Binty was hacked.
53. Thus, in the absence of any substantive and credible evidence on record that the accused had hacked Binty, mere seizure of the said Kalam Katari (Mat. Ext. 1) can be of no avail to the prosecution, particularly, when evidence on, record does not prove that the said Kalam Katari was the weapon of offence.
54. There is, yet, another circumstance which, to our mind, needs to be dealt with. We have noticed with great concern that the learned Trial Court fixed the following two points for determination at the trial :-
(i) Whether the death of Binty Khetrapal was an act of culpable homicide ? If so, whether it amounted to murder ? and,
(ii) Whether offence was committed by the accused ?
55. The learned Trial Court, while dealing with point No. (i) observed and held as follows :-
"It is not a case of inflicting a single blow in the midst of quarrel or out of provocation. I do not find any iota of evidence attracting any of the Exceptions of section 300 IPC. On the other hand, the accused had not explained as to why he was carrying a weapon in the early morning when all the labourers were going for work. Besides this, the assailant had also committed the offence deep inside the tea garden so that he can flee away from the scene without being noticed by anyone. All these facts are sufficient to hold that the assailant had definite intention of committing the offence of murder. As such, I hold that the offence squarely falls under clause firstly to section 300 and the said offence is punishable u/s 302 of the Indian Penal Code."
56. We are constrained to observe that while fixing the points for determination, learned Trial Court put the cart before the horse inasmuch as after determining as to whether Binty's death was an act of culpable homicide, the learned Trial Court moved forward to determine whether the accused had committed the offence. Not merely this, the learned Trial Court, in fact, while dealing with point No. 1 (i) itself, concluded that the appellant had killed Binty without any justification. If it were so, the question of discussing and answering point No. (ii) did not arise at all, whereas without answering the point No. (ii) in the affirmative, the learned Trial Court could not have really held that the appellant had killed Binty without justification.
57. In fact, the learned Trial Court ought to have, first, determined if Binty's death was homicidal in nature and if so, whether the accused was responsible for her death and if the learned Trial Court had found that the accused-appellant had killed Binty, then, it could have determined if the act of killing Binty amounted to murder.
58. Because of what have been discussed above and upon full and complete appraisal of the evidence on record, we are firmly of the view that though some suspicious circumstances exist pointing to the possibility of the appellant being perpetrator of the crime, there is really no substantive and clinching evidence on record to prove that the appellant had killed Binty. Situated thus, we have no hesitation in holding that the learned Trial Court seriously erred in convicting the appellant.
59. In the result and for the reasons discussed above, this appeal succeeds and is accordingly allowed. The impugned judgment and order shall stands set aside. The appellant is held not guilty of the charge framed against him and is accordingly acquitted of the same.
60. Let the appellant be set at liberty forthwith unless he is required to be detained in connection with any other case.
61. Send back the LCR with a copy of this judgment and order.