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Judgment
M.R. Pathak, J
1) The learned Additional Sessions Judge, Fast Track Court, Eastern Zone, Lohit District, Namsai, Arunachal Pradesh by a common judgment dated
26.07.2010 and order dated 10.08.2006 passed in Sessions Case No. 03/2006 arising out of G.R. Case No. 29/2005, corresponding to Namsai Police
Station Case No. 29/2005 convicted the accused Anil Urang under Sections 307/326/302/ 201/34 of the Indian Penal Code (IPC) and the other
accused Suresh Urang under Sections 302/201/34 of the IPC and sentenced both of them to undergo Life Imprisonment for the offence under
Sections 302/34 IPC and also sentenced them to undergo Rigorous Imprisonment 5 (five) years for the offence under Sections 201/34 IPC. In addition
to the above, by the said order dated 10.08.2010 the learned Trial Judge further sentenced the accused Anil Urang to undergo Rigorous Imprisonment
for 7 (seven) years under Sections 307/326 IPC, observing that the said sentence shall run separately.
2) Being aggrieved with said common judgment and order of conviction and sentence, both the accused have preferred the present appeals from jail.
As agreed by the parties, we have taken up both the appeals together for consideration.
3) Prosecution’s case is that on the evening of 14.05.2005 around 06:30 pm an unknown person with severe cut injuries (with dao) on his person,
drenched with blood, appeared in the shop of one Debaru Urang at Village-Jona I (Kuli) who could not speak due to his neck injuries. Seeing the
severely wounded person, the said shop owner informed Boro Sonowal (PW.1), the Gaon Burha (Village Headman) of the village, who immediately
came to that shop and noticing the said unknown injured person, he informed the Namsai Police Station about it. Thereafter, Police personnel from
Namsai Police Station arrived at the concerned place at Jona-I Village, took the said injured person with them and on the night of 14.05.2005 itself,
around 11:30 pm the injured person was admitted in the Namsai Community Health Centre for his medical treatment. Subsequently, on the intervening
night of 14.05.2005 and 15.05.2005, the Gaon Burha of the village Boro Sonowal (PW.1), lodged a written ejahar before the Officer-in-Charge of
Namsai Police Station about the aforesaid incident, stating that the accused person of the case is unknown and requested the police authority to do the
needful. The same was registered and numbered as Namsai Police Station Case No. 29/2005 under Sections 307/326 IPC (Exihibit-1) corresponding
to G.R. Case No. 29/2005. On enquiring into the matter police on 15.05.2005 from the said injured person came to know about his identity that he is
Petuwa Moran, resident of Old Mohong, P.O. - Mohang, P.S. â€" Mahadevpur and from him also came to know about the incident in which he
sustained the injuries as well as the fate of his companion Moton Gowala in the incident. Considering the seriousness of the injuries, doctor at Namsai
CHC referred the said injured person to the Assam Medical College Hospital at Dibrugarh. On 16.05.2005, Police admitted the said injured Petuwa
Moran in St. Lukes Hospital, Tinsukia for his better treatment and on 23.05.2005 he was discharged from that Hospital.
4) The Investigating Officer of the case during investigation, on 16.05.2005, recovered two bicycles, one Hero Royal Bicycle with No. 884308 and
another Hero Jet Bicycle wherein the number was not visible, from a pond (low lying area filled with water) in a paddy field behind the house of one
Suresh Urang as disclosed by him, which were concealed therein, in presence of the witnesses and said Suresh Urang and those were seized by
preparing Seizure List (Exihibit-3). Police also recovered one 29 inch dao with handle (10 inch without handle) from the house of said Suresh Urang in
presence of the witnesses and seized the same by preparing Seizure List (Exihibit-2) (MR No. 20/2005). Thereafter, said Suresh Urang was brought
to the Namsai Police Station and he was arrested on 16.05.2005 itself. On the next day i.e. on 17.05.2005 police made a search on the bank of
Tengapani river at Jona-I (Kuli) Village, i.e. the place of occurrence, in presence of the witnesses during which one blue colour, size-7 hawai sandal
and a gamocha (Assamese Towel) was recovered from that place, which were seized by preparing Seizure List (Exihibit-4). On the same day police
also recovered Rs. 430/- (denomination of Rs. 100/- x 2, Rs. 50/- x 2, Rs. 20/- x 2 and Rs. 10/- x 9) from the house of the arrested person Suresh
Urang in his presence and other witnesses and seized those currencies by preparing Seizure List (Exihibit-8). The Investigating Officer of the case
had drawn the sketch map of said place of occurrence where the alleged incident occurred as well as the place from where the concealed bicycles
were recovered (Exihibit-9). On 17.05.2005 police also arrested another person in the case, namely, Anil Urang, who was brought to the police station
by the villagers.
5) After recording the statements of the witnesses acquainted with the case, including the injured victim, on seizure of the above noted articles and
during investigation, the Investigating Officer of the case found that in the late afternoon on 14.05.2005 both the arrested persons in the case gave dao
blows to the injured person thereby injuring him severely, who was identified to be Petuwa Moran and also killed his companion in the place of
occurrence by assaulting him with dao and then threw his body in the Tengapani river and inspite of search and attempts being made in that river,
neither that person nor his body could be recovered from it and found that the injured Petuwa Moran somehow managed to flee away from those two
accused person, when they were after his companion Moton Gowala. The Investigating Officer of the case vide communication No. NMS/PS-7/05
dated 18.05.2005 wrote to the Judicial Magistrate, First Class Namsai seeking necessary permission to add Sections 302/301/34 IPC in the said
Namsai PS Case No. 29 /2005 that was initially registered under Sections 307/326 IPC. By order dated 01.06.2006, the JMFC, Namsai, Lohit District
allowed the said prayer of the Investigating Officer of said Namsai PS Case No. 29 / 2005.
6) On 20.05.2005 the Investigating Officer of Namsai PS Case No. 29 /2005 wrote to the Judicial Magistrate, First Class Namsai to record the
statement of the accused persons under Section 164 CrPC (Exihibit-10) and the learned Additional Deputy Commissioner, Lohit District, Namsai by
order dated 25.05.2005 while allowing the same, directed the Judicial Magistrate, Second Class, Namsai to record the statements of the accused
persons of said Namsai PS Case on 04.06.2005, subject to their willingness. On 04.06.2005 though both the accused persons were brought from
judicial custody, but on that day their statements could not be recorded and the Judicial Magistrate, Second Class, Namsai fixed 06.06.2005 for
recording of their statements. On 06.06.2005, both the accused persons were again brought from the judicial custody and were produced before the
JMSC, Namsai in the morning to record their statements. After giving three hours time to them for their reflection, the said Magistrate in the afternoon
on 06.06.2005 recorded the statements of both the accused persons under Section 164 CrPC (Exihibit-12).
7) Zimma of the sized articles in the case, namely, one bicycle, cash amount, hawai sandal and the gamocha were given to Krishna Gowala, the
younger brother of Moton Gowala (Exhibits - 5 & 6). Zimma of the other sized bicycle was given to the injured victim Petuwa Moran. After collecting
the Injury Report of the injured Petuwa Moran from Namsai CHC (Exihibit-7) and on completion of the investigation of the case, finding prima facie
materials regarding their involvement, the concerned Investigating Officer (PW.10), vide No. 57/2005 dated 29.08.2005 filed the Charge Sheet in said
Namsai PS Case No. 29/2005 under Sections 302/307/326/201/34 IPC (Exihibit-11) against both the accused persons in the case.
8) As Section 302/307 IPC are exclusively triable by the Court of Sessions, the learned JMFC, Namsai, Lohit District by his order dated 15.10.2015
committed the said G.R. Case No. 29/2005 to the Court of Sessions at Tezu, Lohit District. But it was placed before the JMFC, Tezu, who in turn on
27.10.2015 again committed the said G.R. Case No. 29/2005 to the Court of Sessions at Tezu. On receipt of the same, it was registered and
numbered as Sessions Case No. 3/2006 in the learned Court of Sessions at Tezu. On 24.09.2007, the Deputy Commissioner, Lohit District, Tezu,
Arunachal Pradesh forwarded the records of said Sessions Case No. 3/2006 to the Court of Additional Sessions Judge, (FTC), Namsai for trials and
necessary orders. The Trial Judge on 11.02.2008 framed charges under Sections 302/307/326/201/34 IPC against the two accused persons, which
were read over and explained to them, to which the accused persons pleaded not guilty and claimed to be tried. Accordingly, the trial of said Sessions
Case commenced.
9) To prove the guilt of both the accused persons, the prosecution examined 12 (twelve) witnesses, including the doctor, who examined the injured
victim Petuwa Moran on the day of the incident; the investigating officer of the case and others. The defence did not adduce any evidence, but cross-
examined the prosecution witnesses. After completion of recording of evidence of prosecution witnesses, the Trial Judge on 09.07.2009 recorded the
statements of the accused persons under Section 313 CrPC, wherein they denied all the accusations made against them by the prosecution witnesses.
However, in his Section 313 CrPC statements, the accused Suresh Urang admitted that he led police to recover two bicycles, but not from a pond, but
from a nallah (water passage/drain), where there were water due to rainy season. On being enquired by the learned Trial Judge, both the accused
persons denied to adduce evidence in the case.
10) Having found the accused persons guilty of the offences under Sections 302/307/326/201/34 IPC, the learned Trial Court by the Judgment of
conviction dated 26.07.2010 and sentence dated 10.08.2010 imposed the impugned punishment against the accused persons as noted above.
Aggrieved by their said convictions and the sentences, imposed upon them by the learned Trial Court, the accused persons have preferred these two
appeals from jail.
11) We have heard Ms. R. Dutta as well as Ms. S. Kanungoe, learned Amicus Curies representing the accused appellants and Mr. N.N.B.
Choudhury, learned Additional Public Prosecutor, Arunachal Pradesh for the respondent State.
12) Ms. Dutta, learned Amicus Curiae for the accused appellant Anil Urang and Ms. S. Kanungoe, learned Amicus Curiae for the accused appellant
Suresh Urang submitted that (i) the prosecution failed to prove the guilt of the appellants beyond all reasonable doubt, (ii) the body of the alleged
deceased Mohan Gowala was not recovered, (iii) there is a possibility that to save himself and/or out of fear, said Moton Gowala might have jumped in
the river Tengapani. Ms. S. Kanungoe, learned Amicus Curiae submitted that prosecution has not succeeded in proving that Mohan Gowala was
murdered by the appellant Suresh Urang at all or that the said accused had hacked the said Mohan Gowala as alleged and that from all the
circumstances of the case, no inference of guilt can be drawn against said Suresh Urang. She also submitted that prosecution could not prove the guilt
of said Suresh Urang on the charge of murder. It is contended by both the Amicus Curiaes that as the corpus delicti of the alleged deceased Mohan
Gowala has not been found, therefore, there is a serious suspicion about his death having taken place at all. It is further stated that in the instant case
there is no corpus delicti and in the absence of there being anything before the Court to show the nature and character of the injuries, the exact
circumstances in which the murder took place so as to assess the murder, whether it was brutal or other etc. and therefore, both the Amicus Curiaes
submitted that the impugned judgment of conviction and sentence should be set aside and quashed and the appellants should be acquitted from all the
charges in the case.
On the other hand, Mr. Choudhury learned Additional Public Prosecutor for the respondent State submitted that the Trial Court on proper appreciation
of evidence adduced by the prosecution passed the impugned judgement of conviction and sentence, which does not call for any interference.
13) It is to be noted herein that the occurrence of the incident as well as the trial of the instant case was held before the separation of judiciary from
executive in the State of Arunachal Pradesh. To ascertain the correctness of the impugned judgment let us briefly go through the evidence on record.
14) First let us consider the evidence of PW.9, Dr. A.C. Gohain, the concerned Senior Medical Officer of Namsai CHC who on 14.05.2005 at night
around 11:30 pm examined the injured person Petuwa Moran (PW.6), son of Late Khageswar Moran of Village - Old Mohang under Madevpur
Police Station, who was brought by Namsai Police and found the following injuries on his person:
INJURIES
i) 1†x 1/2†sharp cut injury on forehead.
ii) 1½†x 1/3†cut injury over trachea.
iii) 1†x 1†cut injury over right shoulder.
iv) 1†x 1/2†cut injury over right auxiliary regime.
v) 2†x 1/2†sharp cut injury over left scapula regime.
vi) 3†x 1/3†cut injury on right palm.
vii) 1†x 1/2†sharp cut injury over left wrist joint.
viii) 3†x 1/3†sharp cut injury on left palm.
The said doctor (PW.9) deposed that all the injuries were cut injuries by sharp and dangerous weapon. He also deposed that the said injured person
was referred to the Assam Medical College Hospital, Dibrugarh for his better treatment. The said doctor PW.9 proved the Injury Report (Exihibit-4)
of the injured person Petuwa Moran and his signature on it. The defence declined to cross examine the said doctor.
15) It is seen that regarding the grievous injuries sustained by the injured person (PW.6), the findings of the doctor PW.9 and his opinion were not
disputed at the trial. The prosecution as such proved that someone voluntarily caused grievous hurt upon the injured person, PW.6 by means of sharp
cutting and dangerous weapon/instrument.
16) Now let us consider the depositions of the other prosecution witnesses and examine the records so as to find out whether the appellants/accused
persons were involved in the said incident of voluntarily causing grievous injury upon the injured person, PW.6 by means of dangerous sharp cutting
weapon/ instrument or not and also whether they had committed murder of Moton Gowala, the companion of injured person PW.6 on the same
incident or not.
17) PW.1, Boro Sonowal, Gaon Burha of the concerned village and informant of the case, deposed that he lodged the FIR, Exihibit-1 and identified his
signature on it. He also deposed that he found PW.6, Petuwa Moran in a severely injured condition, lying down in front of the shop of Debaru, with
cut injuries on his person including his neck and on his information; police came to that place and carried the injured person with them. He also
deposed that no one told him as to had given cut injury to the injured person and that the said injured person came from somewhere to the front of the
shop. He also identified the accused Suresh, present in the dock, saying that he lives nearby his village.
During his cross examination by the defence, said PW.1 stated that Debaru only informed him that an injured person came to his shop and fell down
and that he did not write the FIR.
18) PW.2 Buduwa Urang, one of the seizure witness of the bicycles deposed that on instruction of police he picked up the bicycles kept in the pond
located in the back side of the house of the accused Suresh Urang and kept them in the police vehicle and stated that he had given his thumb
impression in the seizure memo, Exhibit-1. Said PW.2 identified the concerned seizure memo and his thumb impression therein.
In his cross-examination by the defence said PW.2 stated that he cannot say those bicycles belong to whom.
19) PW.3 Constable D. Sungkurang, another seizure witness identified the accused Anil in the dock and deposed that he along with other police
personnel went to the house of the accused Anil on the day of the incident and recovered two bicycles and a Nishi dao, proved the said Seizure List
Exhibit-1 and his signature on it.
In his cross-examination said PW.3 stated that he does not know as to whose bicycles were those and that the wife of the accused was not made a
signatory to that seizure and he heard that those cycles were used by the accused persons at the time of the crime and that the cycles were not
identified.
20) PW.4, Constable P. Lakhanary, deposed that after getting the information regarding murder, he along with Ronya, S.I. of Police (PW.10) and
other police personnel from Namsai Police station went to Juna village in the afternoon and recovered two bicycles from the back side of the house of
the accused Suresh Urang and also recovered a dao from the house of the said accuse which was in his possession. He further deposed that those
seized materials were brought to the Namsai Police Station and that he did not remember as to whether he had given his signature in the Seizure
Memo, Exhibit-1 or not.
In his cross-examination said PW.4 stated that he does not know the owners of those two bicycles and that S.I. Ronya (PW.10) seized the dao from
the possession of the accused Anil Urang and that he did not see the said seized dao in the Court.
21) PW.5, Debonath Regon deposed that on receipt of information about murder, he along with S.I. Ronya (PW.10) went to the village and saw the
injured person with injuries in his neck and the said injured person was brought to the hospital at Namsai and that on the next day they went to the
house of the accused, where from two bicycles were recovered, which were concealed in a pond in the backside of the house of the accused Anil and
that he had given his signature in the seizure memo, Exhibit-1 in the police station and identified his signature on it.
In his cross-examination said PW.5 stated that he does not know those bicycles belong to whom and that he did not see blood stain in the dao seized in
the case and also stated that he did not see the said dao in the Court.
22) PW.6, Petuwa Moran, the injured person in the alleged incident and the star witness of the prosecution deposed before the Court that on the day
of the incident he came to know both Anil Urang @ Borbabu and Suresh Urang and that in the morning of the incident he and Moton Gowala went to
Piyong market and in the road his companion Moton Gowala met accused Anil Urang and Suresh Urang, who knew them earlier and introduce them
to him. One Borbabu (Anil Urang) of Hatimorah Beel (big pond/water basin) told them that six numbers of goats are tied in a place that he knows and
that said PW.6 along with his companion Moton Gowala should accompany them to bring those goats. PW.6 stated that said Borbabu also told them
that he and Gowala (deceased) can carry three goats each in their respective bicycles. Considering that he along with Moton Gowala went to Jona
Pothar with said Borbabu. PW.6 also deposed that on reaching Jona Pothar they kept the three bicycles belonging to him, that of Moton Gowala and
said Borbabu in the house of Suresh Urang. As it was not dark, Borbabu told him that as it will be dark soon, they should halt in their house for the
night along with the goats and on the next morning he and Moton Gowala should return to their own village. Said Borbabu told them that they should
proceed to see the goats to the place and accordingly they followed said Borbabu who took them to a jungle and then they saw a river where Borbabu
drank water and he told them that they have to go further to which he replied that it will become dark. But said Borbabu replied that it would not be
dark and shall reach the place within time. PW.6 deposed that he walked in the front followed by said Borbabu (Anil Urang), then said Moton Gowala
and Suresh Urang in the last in a line and while they were walking, he was given dao blow from back and he fell in the front and then he was again
hacked in his forehead. PW.6 further deposed that Moton Gowala then shouted as to why they were assaulting him (PW.6) and then said Gowala
was hacked any he fell into the river and that he heard the sound of it. He deposed that he was hacked 12 times in different parts of his body due to
which his left hand had become permanently handicapped and it got deformed. PW.6 went on deposing that the incident occurred around 04:30 pm, he
heard sound near the river hai dhor dhor (hai catch him) and mar-mar (beat him) and that he somehow crawled and moved in the jungle, hid himself in
it. He deposed that after crawling for some time, he saw light at a distance and reached the spot in Kachari gaon in Juna village, where some people
gathered including the Gaon Burha and that he was taken to Namsai CHC by police wherein he was hospitalised. PW.6 deposed that Borbabu hacked
him at first and said Gowala was hacked by Suresh and that Moton Gowala was no more, who was dead and his body could not be recovered. PW.6
identified the accused Anil Urang and deposed that it is he who hacked him and the other accused hacked his companion Moton Gowala. PW.6
clarified that the bicycles belonging to him, his companion Moton Gowala and that of the accused Anil Urang were kept in the house of the other
person Suresh and that said accused person Suresh led police to recovery of his bicycle that was given to him later by police.
In his cross-examination by the defence PW.6 stated that he went to Piyong market to buy ducks, hen etc. and there were other persons in the market
when they met the accused, but he was not aware whether their conversations were heard by other persons or not. He also stated that he did not visit
Juna Pathar earlier and they were walking in the jungle, by the side of the river Tengapani, led by the accused persons and the accused Anil Urang,
who was walking right behind him hacked him and then he heard Moton shouting to accused Anil as to why he had cut him and then said Moton was
attacked by the accused standing in the doc (Anil Urang) and when he was lying on the ground being injured, he saw accused Anil hacking the
deceased. During his cross examination on being asked, said PW.6 also stated that while they were walking no argument or any altercation took place
between them and they walked peacefully and in the jungle the accused persons suddenly attacked them with dao and that the accused persons
followed said said Moton Gowala to the river Tengapani. He reiterated that it is the accused Anil who had hacked him (PW.6).
23) PW.7, Krisna Gowala, younger brother of the deceased Moton Gowala identified the accused Anil, present in the dock and deposed that he did
not see the incident and his elder brother Moton Gowala died leaving behind two children, a girl of five years and a boy of four years at the time of the
incident. He also the fourth that Moran Kokai (PW.6 Petuwa Moran) [In Assamese language the word Kokai is used by a person to greet a male
person, who is elder to him/her and aged about his/her elder brother] that both of them (his elder brother Moton Gowala and said PW.6 Petuwa
Moran) were taken by the accused standing in the dock (Anil Urang) and that could not be recovered though the villagers search for it till Dhola in
Assam but could not find it. He also deposed that the said accused standing in the dock resides near his house, about less than 1 km. He further
deposed that Exhibit-4 is the zimma for the cycle that belongs to his brother deceased Moton Gowala and identified his signature on it. The defence
declined to cross-examine the said witness.
24) PW.8, Kumblu Majhi, deposed that he was was informed by the Gaon Burha of Old Mohang go to Namsai Police Station and thereafter came to
Jona Pathar from Namsai Police Station along with police personnel and reached the spot being led by the accused Suresh and found one
“Gamocha†and a chappal (sandal) the seized by police vide Exhibit-1 and proved his signature on it. He also deposed that the said accused
Suresh and let them to his house and showed the pond from where the bicycles are recovered and that those cycles were brought to Namsai Police
Station.
In his cross-examination said PW.8 stated that he heard that “Gamocha†belongs to Moran and the chappal belongs to Gowala and that both
Moran and Gowala were known to him.
25) PW.10, G. Ronya, S.I. of Police, the Investigating Officer of the case deposed that after getting the information from Boro Sonowal (PW.1), the
Gaon Burha of Jona-Kachari I, the in-charge of Namsai PS asked him to enquire about the matter and he along with other police personnel on
14.05.2005 around 07:30 pm rushed to the spot which was about 20 kms. away from the police station and reaching the spot they found the victim
Petuwa Moran (PW.6) lying in a pool of blood in the veranda of a shop owned by one Debaru Urang of Jona Kuli village with severe cut marks on his
neck, trunk, both the hands and all over his body. As such he immediately took that the injured person in the police vehicle itself brought him to the
Namsai CHC and admitted him there and on 16.05.2005, said victim was sifted to Tinsukia for his further treatment. Said PW.10 deposed that on
15.05.2005 the injured person Petuwa Moran narrated the incident to them stating that he along with his friend Moton Gowala of Kheroni went
together to Piyong market to sale betel nut plants and to purchase goats, ducks etc. He deposed that PW.6 told them that in the Piyong market, said
friend the deceased introduced PW.6 with Anil Urang, one of the accused and said Anil Urang took them to Juna village stating that his father-in-
law’s house is at Jona-I, where six goats are available at cheap rate. Said PW.6 also told them that in the house of his father-in-law, the accused
Anil Urang told them that the goats are available at Nepali house located near the bank of Tengapani river and then said Anil Urang went to the house
of the accused Suresh Urang, hatched the conspiracy to kill the said injured and his friend Moton Gowala as both of them carried sufficient amount to
buy goats.
PW.10 deposed that after hearing the injured Petuwa Moran where he indicated the accused person Anil Urang and Anil Urang’s brother-in-law,
whose name he could not mention (i.e.,Suresh Urang), he went to Jona-Kingham and after enquiring, on being led by said Suresh Urang, two bicycles
belonging to the injured and that of the deceased were seized from a pond located at the back side of the house of said Suresh Urang, which were
unscrewed and were dumped in that pond and also seized the weapon dao from said Suresh Urang and arrested him on the same day. He also
deposed that from the spot where the incident occurred, a blue colour, seven size Hawai chappal and an Assamese towel were seized by preparing
Seizure Memo The PW.10 also stated that an amount of Rs. 450/- with denomination of Rs. 100/- x 2, Rs. 50/- x 2, Rs. 20/- x 2 and Rs. 10/- x 9,
were seized from the house of the accused Suresh Urang preparing necessary Seizure Memo and that the seized bicycle, Hawai chappal, Assamese
towel and the record cash amount were handed over to Krishna Gowala, PW.7, brother of the deceased Moton Gowala by appropriate Zimma nama
on their proper identification. PW.10 identified the Seizure Memos, the corresponding exhibits and his signatures on those. PW.10 also deposed that he
collected the medical report of the injured victim (PW.6), arrested the accused Anil Urang on 17.05.2005 at Namsai Police Station, who were brought
by the villagers and as during the investigation both the accused persons admitted their guilt, he made prayers before the Magistrate to record the
statements of those two accused Exihibt-10, proved the said exhibit and his signature on it. PW.10 deposed that the accused persons during
investigation stated before him that they decided to share the money between them @ Rs. 500/- each as the victim told them that there was an
amount of Rs. 1600/- after selling the betel nut plants .
PW.10 further deposed that the inured (PW.6) stated before him that he was attacked by Anil Urang and he fell down on the ground and that the
deceased was attacked by Suresh Urang. Said PW.6 also stated before him that he heard Suresh shouting to Anil that Moton Gowala (the deceased)
was running away after getting injured and then Anil told not to leave Moton Gowala as he had lots of money and thinking that he (PW.6, the injured)
was dead, Anil also ran towards Suresh and there they had killed Moton Gowala, whose dead body could not be recovered and somehow he (PW.6,
the injured) escaped and reached Jona village from where he was picked up and that the cash amount that he was carrying with him could not be
taken by both the accused persons. PW.10 deposed that finding prime facie materials he filed the charge sheet in the case against both the accused
persons under Section 302/307/326/201/34 IPC. PW.10 clarified that initially the case was registered under sections 307/326 IPC but after the
investigation on coming to know about the death of Moton Gowala, committed by both the accused persons, Sections 302/201/34 IPC were added.
In his cross examination by the defence PW.10 stated that the case was registered after his return from the spot on 15.05.2005 and that he obtained
the thumb impression of the accused Suresh Urang in the relevant Exhibit who led to the discovery of the bicycles as disclosed by the said accused
and after the arrest of the said accused, he disclosed and led to the recovery of the bicycles. As the family members of the deceased and the injured
were not present at the sport during the time of seizure, they were not made seizure witnesses and that he does not know who had cut and gave the
fatal blow to Moton Gowala. He also stated that in the course of investigation when he enquired the accused persons in which part of the body of said
Moton Gowala they had gave cut blows, then the accused Suresh stated that as it was evening he had cut wherever possible. PW.10 stated that he
did not send the seized weapon to the FSL for examination to find out whether it contains blood stain of human stain or not.
26) PW.11, D. Hazarika, Head Constable deposed that in the year 2005 he was posted at Namsai and the victim (PW.6) who was seriously injured,
was admitted in the hospital and he told them that in the Adivasi line, he was given cut blow by two persons and one of his friend was killed by those
two Adivasis. Said PW.11 also deposed that he accompanied the Investigating Officer Ronya (PW.10) to Namsai Hospital and the victim told the
entire incident before them. He further deposed that the victim also told them that the Adivasi family, where they sat had a white pig in their house
and he along with the said I.O. went to the Adivasi line near Jona Village - I and II and spotted the house with white pig tied in it and on enquiring the
said family, they told them that Suresh Urang, whose house is on the last of the line along with his friend brought two fellows and had drank in their
house. On getting the information they went to the house of Suresh Urang and enquired about him and the person whom they met identified himself as
Suresh Urang and during interrogation the said accused admitted his crime and when they enquired about the two bicycles, said accused Suresh
showed them those bicycles which were dumped in water, clarifying that it was not a pond, but a low-lying land, filled with water. Said PW.11 further
deposed that those two bicycles were recovered which are broken into parts and enquired about the dao the said accused brought it out that was
seized in the sport itself. Said PW.11 identified the dao that was seized by police in the case from the house of the accused Suresh Urang vide Exhibit
M.R. No. 20/2005 and produced in the Court. He also stated that seized dao and the bicycles were brought to the Namsai Police Station and he had
given his signature in that police station and that they arrested accused Suresh Urang and on the next day accused Anil Urang was arrested.
27) PW.12, Smti. Kalyani Namchoom, Circle Officer,Namsai who was holding the post of Judicial Magistrate Second Class, Namsai at the relevant
time recorded the statements of both the accused persons under Section 164 CrPC deposed that around 10:00 am on 06.06.2005 both the accused
persons Anil Urang and Suresh Urang were brought before her by police to record their confessional statement and she told them that she is a
Magistrate and not the police person and that if they are willing to confess before her they may do so but she warned them that their confession may
be used as evidence against him and gave him reflection time for about three hours asking them to produce around 01:00 pm. But the accused persons
were produced before her at 01:00 pm and at first the accused Anil Urang gave his confessional statement. PW.12 deposed that said accused Anil
Urang told her that he met both the victims (Moton Gowala and Petuwa Gowala) at Piyong market and they were taken to Jona-Kingham on the
pretext of buying goats at cheap rates and on the way to Tengapani forest he met Suresh Urang and disclosed his intention to him and both of them
took the deceased and his friend to a suitable place and attacked them with dao and in result of that Moton Gowala died on the spot whereas Petuwa
Moran was seriously injured injured. PW.12 also deposed that said accused Anil Urang confessed before her that they also took out Rs. 1,000/- from
the pocket of the deceased and shared amount equally at Rs. 500/- each. PW.12 deposed that the accused Anil Urang gave his thumb impression
before her in the relevant exhibit (Exihibit-), identified the same and also identified her signature on it.
The PW.12 further deposed that she had also recorded the confession of the accused Suresh Urang who deposed before her that around 05:00 pm
while he was returning from his field, on the way he met Anil Urang who told him about the murder and asked him to help him to throw the dead body
in the river.
In her cross-examination by the defence PW.12 stated that she recorded the confessional statements of the accused persons one by one and that she
recorded confessional statement of the accused Anil Urang at first confessed before her saying that he murdered Moton Gowala since seven years
back they had quarrelled and he was planning to take revenge for that quarrel and for that he brought the two persons, i.e., Petuwa Moran and Moton
Gowala. Said PW.12 in her cross-examination also stated that before her the accused Suresh Urang did not confess about the murder but he
confessed before her that he helped the accused Anil Urang to throw the dead body in Tengapani river.
PW.12 identified the thumb impression accused Suresh Urang that he had given before her in the relevant exhibit and also identified her signature on
it.
28) It is well settled that in a case of murder where neither the body of the victim/deceased nor any trace of it is found, then also conviction can still
be maintained on the basis of the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. A three Judges Bench of the
Hon’ble Supreme Court in the case of Ram Chandra -Vs- State of U.P., reported in AIR 1957 SC 381 have held that â€
“It is true that in law a conviction for an offence does not necessarily depend upon the corpus delecti being found. There may be reliable evidence,
direct or circumstantial, of the commission of the murder though the corpus delecti are not traceable.â€
29) In the case of Ramanand and Others -Vs- State of Himachal Pradesh, reported in (1981) 1 SCC 51 1with regard to a case, where the dead body
of the victim was not found, the Hon’ble Apex Court have held that â€
“27) …………….. It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is
that the accused “caused the death†of the person alleged to have been killed.
28) This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been
caused. Ordinarily, the “recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death
of the victim. There was a time when under the old English law, the finding of the body of the deceased was held to be essential before a person was
convicted of committing his culpable homicide. “I would never convict,†said Sir Mathew Hale, “a person of murder or manslaughter unless
the facts were proved to be done, or at least the body was found dead.†This was merely a rule of caution, and not of law. But in those times when
execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim
bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases
are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old “body†doctrine would open the door wide
open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim.
In the context of our law, Sir Hale’s enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a
murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof
may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. “homicidal
death†is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly
leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring
absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3 of the
Evidence Act, a fact is said to be “provedâ€, if the court considering the matters before it, considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death,
therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim
has been murdered by the accused concerned. ................................â€
30) The Hon’ble Apex Court in the case of Sevaka Perumal and Another -Vs- State of Tamil Nadu, reported in (1991) 3 SCC 471 have held that
â€
“In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be
established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was
committed and the dead body was thrown into flowing tidal river or stream or burnt out. It is unlikely that the dead body may be recovered. If
recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead
body is destroyed etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is
proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the
offence of murder, like any other factum of death was committed and it must be proved by direct or circumstantial evidence, although the dead body
may not be traced.â€
31) The Hon’ble Supreme Court in the case of Mani Kumar Thapa -Vs- State of Sikkim, reported in (2002) 7 SCC 15 7referring its earlier
decision in the case of Sevaka Perumal (supra) have held that â€
“Therefore, the argument that in the absence of corpus delicti the prosecution case should be rejected, cannot be accepted. Similar fate will follow
the argument that in the absence of any specific motive there can be no conviction.â€
32) In the case of Prithipal Singh -Vs- State of Punjab and Another, reported in (2012) 1 SCC 10, where the body of the person murdered could not
be recovered, the Hon’ble Apex Court, citing its earlier decisions in the cases of Mani Kumar Thapa (supra), Ram Chandra (supra),A shok
Laxman Sohoni -Vs- State of Maharashtra, reported in (1977) 2 SCC 103 and Ramanand (supra), have held that â€
“Therefore, in a murder case, it is not necessary that the dead body of the victim should be found and identified i.e. conviction for the offence of
murder does not necessarily depend upon corpus delicti being found. The corpus delicti in a murder case has two components â€" death as result, and
criminal agency of another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidenceâ€.
33) PW.1, Boro Sonowal, Gaon Burha of the village and the informant of the case, deposed that he found PW.6, Petuwa Moran in severe injured
condition, lying down in front of the shop of Debaru, with cut injury on his neck and other and that on his information police personnel from Namsai
Police Station came to said place and took away the said injured person. PW.10, G. Ronya, S.I. of Police, the Investigating Officer of the case
deposed that after getting the information from Boro Sonowal (PW.1), the Gaon Burha of Jona-Kachari I, he along with other police personnel of
Namsai Police Station on 14.05.2005 around 07:30 pm rushed to the spot which was about 20 kms away from the said police station and reaching the
spot they found the victim Petuwa Moran (PW.6) lying in a pool of blood in the veranda of a shop owned by one Debaru Urang of Jona Kuli village
with severe cut injuries on his neck, trunk, both the hands and all over his body and the said injured person (PW.6) was immediately taken to the
Namsai CHC in the police vehicle itself. PW.9, Dr. A.C. Gohain, who was the Senior Medical Officer of Namsai CHC at relevant time, on
14.05.2005 around 11:30 pm examined the injured victim PW.6, Petuwa Moran when he was brought by Namsai Police and on the person of the said
injured victim he found i) sharp cut injury on forehead, ii) cut injury over trachea, iii) cut injury over right shoulder, iv) cut injury over right auxiliary
regime, v) sharp cut injury over left scapula regime, vi) cut injury on right palm, vii) sharp cut injury over left wrist joint and viii) sharp cut injury on left
palm, which were caused by sharp and dangerous weapon and the said Doctor, PW.9 proved the injury report of the said victim.
34) From the evidence of the PW.6, the injured victim Petuwa Moran it can be seen that he along with Moton Gowala went to Piyong market on the
date of the incident and in that market they met the accused Anil Urang @ Borbabu and his companion Gowala introduced Borbabu to him and that
said Borbabu told them that he knows a place where six goats are available for sale and as he convinced them, he along with Moton Gowala
accompanied Borbabu to Juna Pothar to purchase those six goats and they kept the three bicycles, that belongs to him, his companion Moton Gowala
and that of Borbabu in the house of Suresh and all of them including himself, followed by Borbabu, then Moton Gowala and Suresh at last, in a line
proceeded to the place for the six goats, as guided by the accused Anil @ Borbabu. On their way they came across a jungle and the river Tengapani
and PW.6 though raised a query that it was already evening and will become dark soon, said Borbabu replied that it won’t be dark and shall reach
the place within time. While they were walking, Borbabu hacked him from the back due to which he fell down and then he was hacked again in his
forehead. Seeing that Moton Gowala shouted as to why Borbabu was assaulting him, then said Moton Gowala was hacked and he fell down in the
river and that he heard said sound and that the said injured victim Petuwa Moran deposed that at first Borbabu hacked him and then the accused
Suresh hacked Moton Gowala and said Moran stated that about 12 cut blows were given on his person in various parts of his body and while he was
lying in the ground, he heard the yell of dhar-dhar (catch him), maar-maar (beat him) near the river and that said Moton Gowala died, whose dead
body did not recover. He also deposed that somehow he crawled in the jungle, saw light at a distance, reached Kachari Gaon within Juna Village,
children of the village saw him and surrounded him, where some senior persons also gathered, where the Gaon Burha of the village also came and he
was brought to the Namsai Police Station was admitted in the Namsai CHC.
35) From the evidence of PWs. 2, 4 and 11 it is clear that the bicycles of injured victim PW.6 Petuwa Moran and the other victim Moton Guwala
were recovered from the backside of the house of the accused Suresh, which were kept concealed under water in a low lying field after dismantling
them, custody of which were subsequently given to the said injured victim PW.6 and the PW.7, brother of said Moton Guwala, which were
corroborated by the PW.10, the investigating officer the case.
36) We have noticed that the statements of the accused persons Anil Urang and Suresh Urang recorded under Section 164 CrPC (Exhibit-10) does
not consist of the queries by the concerned Magistrate as to why they were making such confession, whether on force of police or of their own will
and for that those statements of the accused persons (Exhibit-10) cannot be taken into consideration.
37) However, from the evidence of the prosecution witnesses, more particularly PW.6, the injured witness Petuwa Moran about the injuries sustained
by him in the same incident, being corroborated by the PW.1, the informant of the case as well as the Gaon Burha of the village as narrated by him in
the FIR (Exhibit-1), the evidence of PW.9, concerned doctor of Namsai CHC at the relevant time, corroborating the medical evidence (injury report)
(Exhibit-7) of said injured victim (PW.6), the recovery of the two bicycles, belonging to the injured victim Petuwa Moran and the other victim Moton
Guwala, from the backside of the house of the accused Suresh Urang proved kept concealed under water, after dismantling them establishes the
presence of the accused persons Anil and Suresh in the spot, near the river Tenagapani beyond reasonable doubt, which cannot be discarded.
38) In the case of State of Uttar Pradesh -Vs- Naresh and Others, reported in (2011) 4 SCC 32,4 the Hon’ble Supreme Court, citing its earlier
decisions in the cases of Jarnail Singh -Vs- State of Punjab [(2009) 9 SCC 719,] Balraje -Vs- State of Maharashtra [(2010) 6 SCC 673 ]and Abdul
Sayeed -Vs- State of M.P. [(2010) 10 SCC 259] have held that â€
“The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is
generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The
testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends
support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The
witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.
Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major
contradictions and discrepancies therein. Mere contradictions on trivial matters could not render deposition of such injured witness untrustworthy.â€
39) We found that the defence could not dislodge above noted evidence of the prosecution witnesses, regarding the cut blows given to the PW.6
Petuwa Moran, the injuries sustained by the said victim in the course of same incident, the presence of Moton Guwala, companion of the said injured
victim and the accused persons Anil and Suresh in the place of occurrence near the river Tenagapani and also about the recovery of the bicycles of
said PW.6 and Moton Guwala from back side of the house of accused Suresh Urang, concealed under water by dismantling them. The defence could
not place anything before the Court that the evidence of the injured victim Petuwa Moran, PW.6 suffers from major contradictions and discrepancies
so as to disbelief or discard the same. It is also not the case of the defence that said Moton Guwala is alive or that he has been recovered. The
evidence of the prosecution witnesses, noted above, to that extent remained unshaken and intact.
40) The learned amicus curies have raised an issue that though a dao was seized (Exhibit-2, MR No. 20/2005) from the house of accused Suresh, but
the prosecution has not proved the same to be the weapon of offence nor proved it through proper examination by the FSL. Moreover, it was not
identified. It is to be noted herein that the Hon’ble Supreme Court in the case of Manjit Singh -Vs- State of Punjab, reported in (2013) 12 SCC 746
have held that “when there is ample unimpeachable ocular evidence and the same has received corroboration from the medical evidence, even the
non-recovery of weapon does not affect the prosecution caseâ€. As the ocular evidence of the injured witness PW.6 and his injury report (Exhibit-7)
proved by the concerned doctor PW.9 remained intact. Even though the dao, alleged weapon of offence seized in the case vide Exhibit-2 (MR No.
20/2005) not been examined through FSL, the same will not affect the case of the prosecution.
41) We have noticed that from Piyong market it is the accused Anil Urang @ Borbabu brought both the injured witness PW.6 Petuwa Moran and his
companion Moton Gowala telling them that six goats are available for sale and that place was known to him and they were taken to Junapathar first
and after keeping their three bicycles in the house of Suresh, said Anil along with Suresh lead both of them through a jungle by the side of the rive
Tengapani. Said Anil also advised both the persons they on their return if it becomes dark, then they shall stay in their house for the night with the
goats and can return to their home next morning. It is also seen that when said Anil told them that they have to go further, PW.6 stated that soon it will
become dark, then said Anil ensured them that it would not be dark and they continued to walk further in a line, PW.6 at first, followed by accused
Anil @ Borbabu, then said Moton Gowala and accused Suresh at last and when they reached the place of occurrence, said PW.6 was hacked by
accused Anil with a dao.
42) We have seen that in his evidence PW.6, the injured witness Petuwa Moran stated that when he was assaulted by the accused Anil he fell down
in the ground and Moton Gowala objected to such assault on him. PW.6 stated that then accused Suresh hacked Moton Gowala. Being injured while
he was lying on the ground PW.6 heard sound near the river hai dhor dhor (hai catch him) and mar-mar (beat him). PW.6 stated that said Gowala
was hacked, he fell into the river and he heard the sound of it and that and that he (PW.6) somehow crawled and moved in the jungle, hid himself in it.
PW.6 also stated that said Moton Gowala died and his dead body could not be recovered. During his cross-examination, PW.6 stated that the accused
persons followed said Moton Gowala to the river Tengapani.
43) PW.6 was the sole witness to the incident. While he was on the ground being injured he had only heard dhor dhor and mar-mar near the river and
also heard the sound of Moton Gowala falling into the river. Though PW.6 stated that accused persons assaulted Moton Gowala, but he did not state
in which part of his body he was assaulted. It is settled that to base a conviction for an offence of murder, although the dead body may not be traced
or recovered, there should be reliable and acceptable direct or circumstantial evidence about the offence of murder by which death was committed. In
the case in hand what we have noticed from the evidence of PW.6 that he did not see the assault on Moton Gowala by the accused persons except
hearing sound of dhor dhor, mar-mar and sound of falling into the river.
44) In the case in hand the PW.6 Petuwa Moran did not see that the accused persons assaulted Moton Gowala and it is also not the case of the
prosecution that said PW.6 had witnessed the killing of said Petuwa Moran by the accused persons or that those accused persons had brutally
assaulted and caused injuries to vital parts of said Moton Guwala. It is well settled that where the fact of corpus delicti, i.e. ‘homicidal death’ is
sought to be established, the evidence, whether direct or circumstantial, must be of a clinching and definitive character unerringly leading to the
inference that the victim concerned has made with a homicidal death. In the present case, it is not known whether said Moton Gowala jumped into the
river to save himself of being assaulted by the accused persons nor there any evidence that after assaulting said Moton Gowala, the accused persons
threw him in the river. As such we are of the opinion that the prosecution failed to establish completely regarding committing of murder of said Moton
Gowala by the accused persons.
45) PW.9, the concerned Senior Medical Officer who examined the injured Petuwa Moran (PW.6) on the night of 14.05.2005 at of Namsai CHC in
his evidence deposed that someone voluntarily caused grievous hurt upon the injured PW.6 by means of sharp cutting and dangerous
weapon/instrument and the said doctor proved the injury report of the said victim. It is also seen that the defence declined to cross examine the said
doctor. To constitute an offence under Section 307 IPC there should be an act must be done with such intention or knowledge or done under such
circumstances that if death be caused the offence of murder will emerge. There is no evidence of the concerned doctor (PW.9) that injuries sustained
by PW.6 Petuwa Moran was so grave that it would led to his death. The prosecution could not place any evidence that the accused ANIL Orang had
the requisite intention to commit murder of the victim Petuwa Moran, PW.6 and for the said purpose he had done the act of assaulting said PW.6
towards his commission in pursuance of the intention to commit his (PW.6) murder. However, from the evidence of the prosecution witnesses it is
seen that prosecution could prove that the accused Anil Orang had voluntarily caused grievous hurt by dangerous weapon to the victim Petuwa Moran
(PW.6). Therefore, the said accused Anil Orang is liable to be convicted under Section 326 IPC.
46) From the evidence of the prosecution witnesses noted above, we have seen that the bicycles of the victim Petuwa Moran (PW.6) as well as that
of Moton Gowala were dismantle and were kept in a pond concealed under water (low lying area filled with water) in a paddy field behind the house
of one Suresh Urang and those were recovered on discloser of the said accused, in presence of the witnesses and were accordingly seized by
preparing Seizure Memo (Exihibit-3). Therefore, both the accused persons have been rightly charged under Section 201 IPC.
47) On perusal of the evidence on record, hearing the parties, and considering the entire aspect of the matter as well as the legal proposition discussed
above we are of the conclusion that the prosecution failed to prove the charge under Section 302/307 against the accused persons. However, both the
accused persons had committed the offence under Sections 326/201/34 IPC. Accordingly, both of them are sentenced to rigorous imprisonment for 10
(ten) years under Section 326/34 IPC, with a fine of Rs. 1,000/-, in default Simple Imprisonment for a period of 3 (three) months. For the offence
under Section 201 IPC both the accused persons are sentenced to rigorous imprisonment for 3 (three) years with fine of Rs. 1,000/-, in default Simple
Imprisonment for a period of 1 (one) month. It is made clear that both the sentences against the accused appellants, noted above, shall run
concurrently.
48) The Criminal Appeals Nos. 123 (J)/2015 and 124 (J)/2015 are, therefore, allowed to the extent indicated above.
49) We appreciate the valuable assistance rendered by both the learned Amicus Curies Ms. Reetuja Dutta and Ms. Susmita Kanungoe, appearing for
the accused appellants as well as Mr. N.N.B. Choudhury, learned Additional Public Prosecutor, Arunachal Pradesh representing the State. The
Gauhati High Court Legal Services Authority, Guwahati shall pay an amount of Rs. 7,500/- each to Ms. Reetuja Dutta and Ms. Susmita Kanungoe,
learned Amicus Curies towards their professional fee.
50) Registry shall furnish a free copy of this Judgment to each of the accused appellants through the Superintendent of District Jail, Tinsukia, Assam
for their necessary use.
51) If in the meanwhile the appellants of Criminal Appeal Nos. 123 (J) of 2015 and 124 (J) of 2015, named above, have already served out the altered
sentence noted above, they shall be released forthwith, if they are not required in any other case.
52) Registry shall return the records to the Court of learned Additional Sessions Judge, Fast Track Court, Eastern Zone, Lohit District, Namsai,
Arunachal Pradesh along with a copy of this Judgment.