Arjun Payok vs State Of Assam And Anr

Soumitra Saikia, J

This criminal appeal under Section 374 of Cr. P.C is preferred by the accused/appellantâ€"Sri Arjun Payok (in jail), being aggrieved by the

Judgment dated 20.06.2017 convicting the appellant to undergo Rigorous Imprisonment for Life under Section 302 of Indian Penal Code for causing

culpable homicide amounting to murder of the deceased.

The prosecution case is that an FIR dated 05.06.2007 lodged before the Jakhalabandha Police Station by the informant- Budhuwa Munda to the

effect that on 05.06.2007 at about 8.30 a.m taking advantage of his absence from his house, Sri Arjun Payok, son of-Late Phul Singh Payok of village-

Bamunigaon, Police Station-Jakhalabandha scolded his wife (informant’s wife-Atuwari Munda) from the road. When the wife of the informant

came out of the house, the accused dealt ‘dao’ blows on her head causing instantaneous death. It was stated in the FIR that the neighbours,

Smti. Bilashi Mahato, wife of Gunakanta Mahato and Smti. Deepa Mahato had witnessed the incident. The said neighbours had brought the wife of

the informant inside the house. The informant stated that he received the information regarding the occurrence about half an hour after the incident

took place.

The said FIR was received and registered as Jakhalabandha Police Station case No. 53/2007 under Section 302 of Indian Penal Code.

After receipt of the FIR the Investigation Officer proceeded to the place of the occurrence, held the Inquest and drew the sketch-map. The Inquest

was held in the presence of the Magistrate, Kaliabor. The accused was arrested by the police and the investigations into the offence were conducted

accordingly. After completion of the Investigation the charge-sheet was filed on 29.07.2007 against the accusedâ€"Arjun Payok under Section 302 of

Indian Penal Code. Charge-sheet dated 09.04.2009 was filed under one head bringing the charge against the accused of committing murder of

Atuwari Munda (deceased), wife of Budhuwa Munda (informant) and which offence is punishable under Section 302 of the Indian Penal Code.

Before the trial court the prosecution supported it’s case by as many as 9 (nine) witnesses and Post Mortem Report, Inquest Report and sketch-

map.

P.W.1, the informant- Sri Budhuwa Mura @ Munda, aged about 80 years, son of-Late Farniture Munda, in his deposition stated that Atuwari

Munda was his wife and she was 70 years old at the time of her death. At the time of the incident the informant went to a shop. Two women of the

neighbourhood namely, Bilashi and Bhaleshwari@ Durgeswari were plucking tea leaves near his house. They had come to pluck tea leaves in the

garden near his house. After returning home, he saw his wife being laid on a mat in an injured state. The P.W.1 deposed that the two women brought

his wife and laid her after she was attacked by the accused. The P.W.1 deposed that some people in the neighbourhood namely, Gunua, Bilashi and

Bhaleshwari @ Durgeswari informed that the accused had attacked his wife. He saw the cut injury on the head of his wife and saw her struggling for

breath. After a while she died. He stated that he did not know as to why the accused has killed his wife. He also stated that he did not make any

complaint before the village headman for holding an extra judicial trial as the accused person was absconding after committing the incident.

5.1 In his cross-examination, the P.W.1 stated that there was a maize cultivation in and around his house. The inner part of the house was not visible

due to the height of the maize plants. The house was situated near the tea garden. After returning from shop, he found his wife lying on a bed in an

injured state. He deposed that he was asked to go to the Police Station by his neighbour, Gunua. He denied the suggestion that Bilashi, Durgeswari @

Bhaleshwari and Gunua did not inform him about the incident. He, however, testified that he did not intend to lodge the complaint in connection with

the incident but he did so since the police had asked him to do. He did not to intend to lodge the ejahar or FIR due to financial constraints. He deposed

that the Officer-In-Charge had written the ejahar and he did not know its contents. He denied the suggestion that the accusedâ€"Arjun did not kill his

wife and as he did not intend to lodge the ejahar against him.

P.W.2, Sri Bilashi Mahato deposed in her examination-in-chief that she knew the complainant-Budhuwa Mandal and the accused-Arjun Payok and

they belong to her village. She also knew Atuwari Munda, the deceased. She deposed that at the time of occurrence at about 9.00 a.m she is working

in the tea garden. The complainant’s residence is adjacent to the tea garden. She noticed both the complainant and the accused from a little

distance and both of them were quarrelling. Then she went to the place of occurrence and found Atuwari Munda (deceased) lying in their campus

with the injury on her head. She deposed that she gave water to the deceased but she died. There was no one near the place of occurrence. After the

occurrence, the police had come and enquired with her about the incident, she told the police what she knew. She deposed that she did not see any

weapon in the hands of the accused.

6.1. The witness P.W.2 was thereafter declared Hostile by the prosecution.

6.2. In the cross-examination by the prosecution, P.W.2 deposed that she did not tell before the Investigating Officer that the accusedâ€"Arjun Payok

abused the deceased and subsequently killed her. She denied the suggestion that she did not state before the Investigating Officer that the accused

forcibly entered into the house of the complainant with a ‘dao’ and the accused hit the wife of the informant twice. She deposed that she saw a

bamboo stick in the hand of the accused. She deposed that she did not tell the Investigating Officer that she saw the occurrence. Further, she deposed

that she saw the head injury of the deceased. She also denied the suggestion that she stated before the Police that she saw the accused hitting

Atuwari Munda and then flee away.

6.3. In the cross-examination by the defence, she stated that the maize plants were about 5 feet high and the person inside the compound could not be

visible properly due to the maize plaints. She stated that she had not seen them (informant and the accused) quarrelling but she heard the sound of hue

and cry. She stated that she was at a distance of 50 feet from the place of occurrence and that she did not see Arjun Payok but has heard the voice

of Arjun Payok. She stated that she went to the place of occurrence after half an hour. She also stated that she did not see Arjun Payok leave the

place of occurrence. She also denied the suggestion that she stated before the police that Arjun Payok killed Atuwari Munda. She stated that she did

not know what the police wrote nor did they read over to her after writing it. She also denied the suggestion that she did not see the occurrence of the

offence.

P.W.3, Smti Deepa Bhumiz deposed in her evidence that she knew both the informant and the accused as they are from the same village. On the

date of the occurrence at about 9.00 a.m she was on the duty of collecting tea plants when she heard hue and cry from the house of the informant-

Budhuwa Munda. Then she rushed there and saw the deceasedâ€"Atuwari Munda lying on the courtyard. She then poured cold water on her mouth

but she did not see any injury on the body. She stated that one little boy, nephew of Budhuwa Munda had called her. Then she and Bilashi went there

again and saw Budhuwa Munda taking his wife in a handcart to the Hospital. The P.W.3 along with her co-worker returned back to their work.

Subsequently, she came to be informed that the deceased had expired.

P.W.4, Gopal Mahato in his examination-in-chief deposed that he knew the deceased, the informant and the accused. He deposed that on the

relevant day after returning from the Jakhalabandha market he came to know that wife of Budhuwa Munda was killed by the accusedâ€"Arjun

Payok. He stated that he came to know about the incident from the village people and he is witnessed to the Inquest report and duly identify the

signature.

8.1. In his cross-examination he stated that police did not ask him about the incident and he being illiterate he does not know what is written in the

exhibit shown as Inquest Report. He also does not know how the deceased died.

P.W.5, Biren Mandal deposed in his examination-in-chief that the accused, informant and his wife were known to him. The incident took place at a

distance situated about 1 km from his house and shop. On the relevant day while he was in the shop, he came to know from the village people that the

accused had killed the wife of the complainant. He then went to the place of occurrence along with the Police and saw the dead body of the deceased

lying in the house.

9.1. In his cross-examination he denied the suggestion that he had falsely stated that he came to know from village people that the accused had killed

the wife of the complainant. He deposed that he did not see the accused in the place of occurrence or any weapon at the place of occurrence.

P.W.6, Gunakanta Mahato in his examination-in-chief deposed that he was also from the same village and he accompanied the police to show the

house of the informant. When he went there, he saw the body of the deceased lying there. He saw head injury of the deceased and blood oozing out

from there. Gathered people there told him that the accused had killed the wife of Budhuwa.

10.1. In his cross-examination, he stated that he did not see who killed the wife of Budhuwa Munda. He denied the suggestion that he had falsely

stated that the gathered people there told him that the accused had killed the wife of Budhuwa. He stated that he put his signature on a blank paper

and he also stated that the Magistrate did not go to the house of the Budhuwa as there was mud on the road. However, he denied the suggestion that

the accused is innocent and that he is not involved in any offence.

P.W.7, Smti Durgeswari Bhumiz did not depose anything. She did not identify the accused nor did she know the informant and the wife of the

informant.

P.W.8 is the Investigating Officer. He deposed that on 05.06.2007 upon receipt of the FIR he visited the place of occurrence. The Inquest over

the dead body was done by the Executive Magistrate in his presence. The dead body was sent to Nagaon B.P. Civil Hospital for Post Mortem

Examination. After his visit to the place of occurrence he prepared a sketch-map of the place of occurrence. He identified the sketch-map and his

signature. He has deposed that after completion of investigation and collecting the Post Mortem Report he submitted the charge-sheet against the

accused under Section 302 of Indian Penal Code. He identified the charge-sheet as well as the signature. He stated that he examined P.W.2 in this

case.

12.1. In his cross-examination, he denied the suggestion that P.W.2 did not state before the police about facts which he deposed in the court in the

examination-in-chief. He denied the suggestion that P.W.2 did not state before him that she had seen the occurrence. He denied the suggestion that

P.W.2 stated before him that she heard about the occurrence. He denied the suggestion that the P.W.2 did not state before him when the accused

had left the place of occurrence. He stated in his cross-examination that after he arrived in the place of occurrence he found the dead body kept on a

pull cart (thela). He stated that the dead body was taken first to Dr. Imran Shah and thereafter it was brought again to the place of occurrence. He

deposed that he saw the head of the deceased with grievous injury but it was not split up into two pieces. The weapon used in the alleged offence was

also not recovered. He denied the suggestion that there was no actual incident of occurrence and that the accused is innocent. He stated that the

accused was arrested after one month of the occurrence.

P.W.9, is Dr. Sushil Das, who is a retired Joint Director of Health Services, Government of Assam. P.W.9 conducted the Post Mortem Report

and on examination the following injuries were noticed:-

“A dead body of 70 years female in stout condition. Eyes and mouth were closed. Rigor mortis was Nil.

Incised wound at right parietal region of head. Size-3†X ¼†X ¼†with fracture of both parietal bone with rapture of membrane and

subdural blood clot over parietal half of brain of both sides.

Intracranial blood clot was seen in both parietal brain matters.

In the stomach, partially digested food particles seen.

On cut section of the heart, all chambers of the heart were found empty.

Uterus is normal in size.

More detail description of injury or disease:-

Injuries are ante mortem in nature as blood clot was firmly adherent to injury sitesâ€​.

13.1. After due examination, P.W.9 opined that the injuries are Ante Mortem in nature and that the cause of death was due to shock and

haemorrhage as a result of the injury sustained at the head. He identified Post Mortem Report and his signature.

13.2. In his cross-examination, he deposed that other than the injuries on the head he did not find any other injury in any part of the body. He also

stated that he did not receive any Medical Report from Dr. Imran Hussain from Jakhalabandha PHC.

In his statements under Section 313 Cr. P.C., to as many as 13 (thirteen) questions being put by the Trial Judge, the accused denied the

allegations. In his answer to question No.4 he, however, stated that at the time of the incident he went to the Tea Estate to cut wood. His answers to

all the other questions were denials without any other explanation.

On these evidences being presented before the Trial Judge, the Trial Judge by Judgment and Order dated 20.06.2017 convicted the accused of

committing the offence of murder of the deceasedâ€"Atuwari Munda and convicted the accused under Section- 302 of Indian Penal Code and

sentenced him to undergo Rigorous Imprisonment for Life.

In view of the fact that there was no eye-witness to the offence, the Trial Court on the basis of the evidence adduced being satisfied that the

circumstances described in paragraph 32 of the impugned Judgment being fully established to form a complete chain pointing to the Guilt of the

accused, convicted the accused on basis of the circumstantial evidences, which were presented by the prosecution during the trial.

Learned Amicus Curiae appearing for the Appellant strenuously urged that on the evidences adduced before the trial court, the circumstances

which were presented before the Trial Judge could not be said to have completed the full circle necessary leading to the sole conclusion towards the

guilt of the accused beyond reasonable doubt for being convicted in cases solely based upon circumstantial evidences. The learned Amicus Curiae

strongly argues that the evidences presented before the Trial Court cannot lead to the conclusion of a guilt of the accused beyond reasonable doubt in

order to convict the accused of the offence alleged under Section 302 Indian Penal Code as had been done by the Trial Court.

The Learned Amicus Curiae submits that there is not a single eye witness who had deposed against the accused nor has any weapon alleged to

have been used in the offence been recovered. The learned Amicus Curiae submits that the Trial Court largely relied upon the evidence of P.W.2

(Smti. Bilashi Mahato), which could not have been done in as much as P.W.2 was declared Hostile by the prosecution. Consequently, the evidence

adduced by the P.W.2 only seeks to shake very foundation of the case sought to be projected against the accused by the prosecution. In support of

her contentions the learned Amicus relied upon the Judgment rendered by coordinate Bench of this court in the case of Sikandar Ali â€"Vs- State of

Assam reported in 2010 (3) GLT 538.

The learned Amicus Curiae further submits that even in the Medical Report there is no suggestion as to the nature of weapon used for the injuries

seen upon the deceased. The learned Amicus would argue that in the absence of the weapon alleged to have been used in the offence not being

recovered, the mere statement of P.W.1 that the accused had dealt ‘dao’ blows on the deceased cannot be relied on to arrive at the conclusion

leading to the conviction of the accused as had been done by the Trial Court on the basis of circumstantial evidences. The learned Amicus strongly

argues that the sequence of events necessary to point to be guilt of the accused beyond reasonable doubt is not made out in the instant case. Further it

is urged by the learned Amicus Curiae that abscondance of the accused if any also cannot be a circumstance which can be used against him.

Therefore the impugned Judgment dated 20.06.2017 passed by the learned Trial Court should be set aside and quashed and the accused be directed to

set free.

Having heard the learned Amicus Curiae and the learned Additional Public Prosecutor, the evidences adduced by the prosecution witnesses during

the trial are required to be scrutinized from the LCR.

The evidence of P.W.1, Budhuwa Mura @ Munda, who is the husband of the deceasedâ€" Atuwari Munda reveals that he was not present in the

place of occurrence and at the time of occurrence. He deposed that Gunua, Bilashi and Bhaleshwari @ Durgeswari informed him that the accused

had hacked his wife. At the time of the occurrence, he went to a shop. On returning back he was informed by the persons named above about the

incident. He saw the cut injury on the head of his wife. He deposed that he saw her struggling for breath and after while she died. The P.W.1

deposed that he did not know why the accused had killed his wife.

21.1. In the cross-examination, however, he stated that Gunua did not tell him about the incidents. He on the basis of the information received from the

persons in the neighbourhood he approached the Police Station and lodged the FIR. He also admitted that he did not make any complaint to the village

headman. As such it is clear that P.W.1, who is the informant- the husband of the deceased was not an eye-witness. He also did not depose anything

about any personal enmity between him, and/or his deceased wife and the accused. It is also evident from his testimony that there is no mention of the

accused being present in the house with his deceased wife, prior to the informant leaving for the shop. He also did not testify that after returning from

the shop when he saw the cut injury on the head of his wife, the accused being present in the place of occurrence or in it’s vicinity.

As such from the evidence of P.W.1, it is seen that there was an attack on the wife of the P.W.1 and the P.W.1 was not present in the place of

occurrence. When he returned he found the cut injury on the head of his wife. On his returned from shop he found P.W.2 and P.W.3 laying his injured

wife on a mat in his house.

In her evidence P.W.2, Bilashi Mahatu initially deposed that at the time of occurrence which is about 9.00 a.m on the date of occurrence i.e. on

05.06.2007, she was working in the Tea Garden. The house of the informant is adjacent to the Tea Garden. She noticed both the complainant

(informant) and the accused from a little distance and saw them quarrelling. Then she went to the place of occurrence and found the

deceasedâ€"Atuwari Munda lying in the campus with the injury on her head. She gave some water to her but she died. She deposed that there was no

one near the place of occurrence. She also deposed that she did not see any weapon in the hand of the accused.

23.1. At this stage the petitioner being declared Hostile by the prosecution and was cross-examination by both the prosecution and by the defence.

23.2. In the cross-examination by the prosecution, she denied submitting before the Investigating Officer that the accusedâ€"Arjun Payok abuse the

complainant and the deceased and subsequently killed the deceased. She also denied the suggestion that she did not state before the I/O that the

accused forcibly entered into the house of the complainant with a ‘dao’ and hit twice on the head of the deceased. Instead she stated that she

saw a bamboo stick in the hand of the accused. She also denied the suggestion that she told the I/O regarding the occurrence. She also denied the

suggestion that she saw the accused hitting Atuwari Munda, the deceased and flee away.

23.3. In the cross-examination by the defence she stated that there were maize plantations which were about 5 feet in height around the house of the

complainant. She stated that the compound could not be visible properly due to the maize plants. She stated that she did not see them (complainant and

the accused) quarrelling but heard the sound of hue and cry. She was at a distance of about 50 feet from the place of occurrence. She did not see the

accused but heard the voice of Arjun Payok. She stated that she sent to the place of occurrence after half an hour and that she did not see when the

accused left the place of occurrence. She denied the suggestion that she stated before the police that the accused had killed the deceased.

23.4. From the evidence of P.W.2 although she is declared Hostile by the prosecution, it is seen that she had deposed regarding the presence of the

accused although her testimony as an eye-witness to the presence of the accused is under the cloud because of her being declared Hostile and she

making contrary statements. However, she stood by her testimony regarding the presence of the accused in the house of the complainant at the time

of the occurrence. At the same time her testimony does not reveal that she was an eye witness to the accused being present at the place of

occurrence or that the accused was seen quarrelling with the complainant and the deceased. Further the presence of the accused in the place of

occurrence as testified by P.W.2 was based on voice recognition that from a distance of 50 feet.

23.5. In the cross-examination by the Defence she even stated that she did not see the accused but heard the voice as there were maize plants

surrounding the house of the complainant. She was also at a distance of approximately 50 feet from the place of occurrence and there is no deposition

regarding the nature of conversation between the complainant and the accused from which the guilt of the accused can be suspected. She also

deposed regarding the presence of the informant and the hue and cry coming from the place of occurrence. Without any other corroborating evidence

to suggest any previous animosity between the complainant, the deceased and the accused relying upon the testimony of the P.W.2 regarding the

presence of the accused in the house of the complainant will not be sufficient to point to the guilt of the accused beyond reasonable doubt that too,

where his presence was not seen, but she recognized him from his voice. She also deposed that there were some people working in the garden with

her but she does not name those persons nor narrate about their behavior after the occurrence. From the deposition of P.W.2 it is not clear as to

whether she saw the accused in the place of occurrence alone with the deceased prior to the occurrence. In her deposition she testified the presence

of both the complainant and the accused and that to by identifying the accused from his voice from a distance of approximately 50 feet. Such

testimony without any further corroboration or any other evidences does not solely pointed to the guilt of the accused for the offence alleged. Her

testimony does not complete the chain of circumstance and will not be safe to only upon to point solely to the guilt of the accused beyond reasonable

doubt.

P.W.3, Deepa Bhumiz in her testimony deposed that on the date of occurrence at about 9.00 a.m she was in her duty of collecting tea leaves from

the Tea Garden (which is adjacent to the house of the complainant). She heard hue and cry from the house of the complainantâ€" Budhuwa Munda.

When she rushed there she saw the wife (deceased) of the complainant lying on her courtyard. Then she poured some water in her mouth but she did

not see any injury on her body. Thereafter, she went to her work and subsequently the nephew of the complainant called her again. Then she and

Bilashi Mahato (P.W.2) again went to the house of the complainant and then there she saw the complainant taking his wife in a handcart to the

hospital. Subsequently, she came to learn that she expired. She deposed that she does not know how the deceased expired.

24.1. In the cross-examination by the defence she stated that when the police asked her about the incident she stated like what she stated before the

court.

24.2. This witness is put up by the prosecution and her testimony remains that she went to the house of the complainant twice. First upon hearing hue

and cry and found the wife of the complainant lying on the courtyard. Subsequently on being called by the nephew of the complainant she and the

P.W.2 went again. In the evidence of P.W.3 it is seen that there is no statement regarding the presence of the accused at the time of occurrence and

on the place of occurrence. This witness also does not explain the cause as to why the wife of the complainant was lying on the floor on the

courtyard. However, she testified that there was no injury seen by her on the body of the deceased. As such, the testimony of this witness also does

not support the theory of the presence of the accused at the place of occurrence and at the time of occurrence. From the evidence of P.W.3 it is also

seen that both she and P.W.2 were working in the garden adjacent to the courtyard of the complainant. The P.W.2 and P.W.3 together went to the

house of the complainant twice. Since the P.W.3 was not declared Hostile or cross-examined in detail, her evidence-in-chief will have to be taken as

un-rebutted. If P.W.3’s evidence is juxtaposed with that of P.W.2, the evidence of P.W.2 will have to be viewed with some suspicion as regards

her testimony that she was in the place of occurrence alone or that she went to the place of occurrence by herself. From P.W.3’s evidence it is

seen that both P.W.3 and P.W.2 went to the place of occurrence, but the presence of the accused is not reflected in the evidence of P.W.3.

P.W.4, P.W.5 and P.W.6 were not present at or near the place of occurrence and at the time of occurrence. They were not the eye-witnesses

and hence their evidences were admittedly â€​hearsayâ€​.

P.W.7 declined to identify the accused. She also denied that she knew the informant or his deceased wife and she did not adduce any evidence for

the prosecution to rely upon.

P.W.8 is the Investigating officer deposed that as per the allegation in the FIR the accused had killed the wife of the complainant namely, Atuwari

Munda by striking with a ‘dao’. In his evidence he stated that he had examined P.W.2 in respect of this case and in her previous statement

P.W.2 stated that she had seen the accused forcibly entering into the house of the complainant with a ‘dao’ and hit twice on the head of

Atuwari Munda and that the accused fled away thereafter. The Investigating Officer further stated that the P.W.2 had stated before him that she had

also seen a bamboo stick in the hand of the accused and the head injury on the deceased.

From the sketch-map drawn by the Investigating Officer it is seen that the description of the place of occurrence and its vicinity doesn’t meet

the description of a place of occurrence and its vicinity as projected by the P.W.1 and P.W.2. The defence did not question the correctness of the

sketch-map during the trial. A perusal of the sketch-map reveals that there is no indication of maize cultivation and maize plants growing up to about 5

feet surrounding the house of the complainant. From the sketch-map it is seen that the Tea garden is adjacent to the land of the complainant

whereupon the dwelling house is also situated. The sketch-map does not indicate any other plantation and/or obstruction between the Tea Garden and

the courtyard of the complainant. The sketch-map thus indicates a raised platform made of bamboo near the place of occurrence. In the sketch-map it

is indicated that the accused took the dao from the said raised platform and dealt blows on the deceased. As such the evidence of P.W.1

namelyâ€"Budhuwa Mura @ Munda and P.W.2 namelyâ€"Bilashi Mahato in their cross-examination deposing that there were maize cultivation

surrounding the house of the complainant and that the maize plants were about 5 feet high is belied by the sketch-map submitted by the police

immediately after the occurrence.

The medical evidence although indicates the incised injuries with fracture on the head and rendering the opinion that the cause of death was due to

shock and haemorrhage as a result of the injury sustained in head, there is no evidence to suggest as to the nature of the weapon used for the injury

sustained which lead to the death of the deceased. Although the medical report reflects ‘incised wound’ which indicates the injuries to have

been sustained by sharp object, however, in the absence of the recovery of the weapon alleged to have been used in the offence, and the absence of

the medical opinion as to the object(s) by which the injuries indicated would have been sustained, the chain of events and circumstances pointing solely

towards the guilt of the accused beyond reasonable doubt is not complete.

Although in the statements of the accused made under Section 313 Cr. P.C., the defence has merely taken a plea of complete denial, such plea of

denial alone will not be sufficient to implicate the accused of the offence alleged unless the prosecution is able to complete the chain of guilt and/or the

sequence of events pointing solely to the guilt of the accused beyond reasonable doubt.

From a perusal of the evidences it is evident that the place of occurrence is in the courtyard of P.W.1 situated in Bamunigaon under Jakhalabanda

Police Station, District-Nagaon. The witnesses presented by the prosecution except the Investigating Officer and the medical expert are all villagers

residing in the same village as the complainant, the deceased and the accused. None of the prosecution witnesses have been able to project any

motive of the accused to commit the offence on the deceased. The evidence of P.W.2 claiming to be the sole eye-witness although later on being

declared Hostile, as well as the evidence of P.W.3 does not establish the presence of the accused within the vicinity of the place of occurrence

beyond reasonable doubt. From the evidences adduced it is also evident that Gunua, Bilashi, Bhaleshwari @ Durgeswari were also present within the

vicinity of the place of occurrence along with some other people who were plucking leaves from the garden.

The evidence of P.W.1, the complainant, the husband of the deceased does not indicate any possible reason as to why the accused might have

killed the deceased. The P.W.1, complainant, was admittedly not available at the place of occurrence during the time of occurrence.

The prosecution case is solely based on circumstantial evidence as no eye witnesses are available. The cardinal principles for conviction of the

accused based solely on circumstantial evidences have long been enunciated by the Apex Court in the Judgment of Sharad Birdhichand Sarda â€"Vs-

State of Maharashtra reported in (1984) 4 SCC 116, which has also been relied upon by the Trial Court below. The principle laid down in the

Judgment is that the circumstances from which the conclusion of the guilt is to be drawn must be and should be not merely “may be†fully

established. And the facts must be consistent to establish the hypothesis of guilt of the accused and not any other hypothesis. This hypothesis must

exclude every other possibility except the one to be proved. The chain of evidences must be so complete as not to leave any reasonable ground for the

conclusion consistent with the innocence of the accused. The Apex Court in this Judgment further held that the prosecution must stand or fall on its

own legs and it cannot derive any strength from the weakness of the defence. It is not the law that where there is any infirmity or lacuna in the

prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court. There is a vital difference

between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion

of the court. These principles have been subsequently reiterated by the Apex Court in several other Judgments. Paramjeet Singh @ Pamma Versus

State of Uttarakhand reported in (2010) 10 SCC 439 has very succinctly culled out the principles regarding conviction based solely on the

circumstantial evidences. Relevant paragraphs are extracted below:-

“13. Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while

deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharashtra

[(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] , this Court observed that it is well settled that the prosecution's case must

stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false

defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in

themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on

circumstantial evidence alone and held as under: (SCC p. 185, para 153)

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established,

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be

explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of

the accused and must show that in all human probability the act must have been done by the accused.â€​

A similar view has been reiterated by this Court in State of U.P. v. Satish [(2005) 3 SCC 114 : 2005 SCC (Cri) 642] , Krishnan v. State

[(2008) 15 SCC 430 : (2009) 3 SCC (Cri) 1029] , Ramesh Bhai v. State of Rajasthan [(2009) 12 SCC 603 : (2010) 1 SCC (Cri) 662] ,

Subramaniam v. State of T.N. [(2009) 14 SCC 415 : (2010) 1 SCC (Cri) 1392] and Babu v. State of Kerala [(2010) 9 SCC 189 : (2010) 3

SCC (Cri) 1179 : JT (2010) 8 SC 560] observing that the evidence produced by the prosecution should be of such a nature that it makes the

conviction of the accused sustainableâ€​.

(Emphasis supplied)

The Apex court in the said Judgment has also cautioned regarding the testimony of Hostile witnesses. The deposition of any Hostile witness is to

be examined cautiously to find out to what extent case of the prosecution is supported and to the extent it can be relied upon. Relevant paragraphs are

extracted below:-

“15. In State of Gujarat v. Anirudhsing [(1997) 6 SCC 514 : 1997 SCC (Cri) 946] this Court observed as under: (SCC p. 517, para 3)

“3. Every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability and order in the

society. Every citizen who has knowledge of the commission of cognizable offence has a duty to lay information before the police and

cooperate with the investigating officer who is enjoined to collect the evidence and if necessary summon the witnesses to give evidence. He

is further enjoined to adopt scientific and all fair means to unearth the real offender, lay the charge-sheet before the court competent to

take cognizance of the offence. The charge-sheet needs to contain the facts constituting the offence(s) charged. The accused is entitled to a

fair trial. Every citizen who assists the investigation is further duty-bound to appear before the Court of Session or competent criminal

court, tender his ocular evidence as a dutiful and truthful citizen to unfold the prosecution case as given in his statement. Any betrayal in

that behalf is a step to destabilise social peace, order and progress.â€​

The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness

furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a

witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a

whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a

witness; normally, it should look for corroboration to his testimony. (Vide State of Rajasthan v. Bhawani [(2003) 7 SCC 291 : 2003 SCC

(Cri) 1628] .)

This Court while deciding the issue in Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661] observed as

under: (SCC p. 457, para 7) “7. … It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because

the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed

off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.â€​

In Mahesh v. State of Maharashtra [(2008) 13 SCC 271 : (2009) 3 SCC (Cri) 543] this Court considered the value of the deposition of

a hostile witness and held as under: (SCC p. 289, para 49) “49. … If PW 1 the maker of the complaint has chosen not to corroborate

his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable

reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted

the entire investigation of the case. In these circumstances, we are of the view that PW 1 has tried to conceal the material truth from the

Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could

be given to the appellant for unfavourable conduct of this witness to the prosecution.â€​

In Rajendra v. State of U.P. [(2009) 13 SCC 480 : (2010) 1 SCC (Cri) 1072] this Court observed that merely because a witness deviates

from his statement made in the FIR, his evidence cannot be held to be totally unreliable. This Court reiterated a similar view in Govindappa

v. State of Karnataka [(2010) 6 SCC 533 : (2010) 3 SCC (Cri) 184] observing that the deposition of a hostile witness can be relied upon at

least up to the extent he supported the case of the prosecution.

In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned

hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecutionâ€​.

(Emphasis supplied)

The Apex Court by the said Judgment has also held that mere abscondance by the accused after commission of crime remaining untraceable for a

few days by itself cannot establish his guilt. It is held that abscondance, by itself, is not conclusive prove of either guilt or guilty conscience. Relevant

paragraphs are extracted below:-

“31. In Matru v. State of U.P. [(1971) 2 SCC 75 : 1971 SCC (Cri) 391 : AIR 1971 SC 1050] , this Court repelled the submissions made

by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a

guilty person, observing as under: (SCC p. 84, para 19)

“19. The appellant's conduct in absconding was also relied upon. Now, mere abscondence by itself does not necessarily lead to a firm

conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is

the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence

but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the

act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in

completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In

the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and

he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to

evade justice. It is not inconsistent with his innocence.â€​

A similar view has been reiterated by this Court in Rahman v. State of U.P. [(1972) 4 SCC (N) 6 : AIR 1972 SC 110] , State of M.P. v.

Paltan Mallah [(2005) 3 SCC 169 : 2005 SCC (Cri) 674] and Bipin Kumar Mondal v. State of W.B. [(2010) 12 SCC 91 : JT (2010) 7 SC

379]

Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be

said to be unnatural. Thus, mere abscondence by the appellant after commission of the crime and remaining untraceable for a period of six

days itself cannot establish his guilt. Absconding by itself is not conclusive proof of either guilt or of a guilty conscience.

(Emphasis supplied)

In view of the facts and the principles culled out by the Apex Court in the Judgment discussed above, it cannot be said that the circumstances as

described in the Judgment under Appeal, have been held to be established against the accused person. As it is evident from the evidences as

discussed above, there was no eye-witness barring P.W.2 who had initially deposed that she had seen the accused quarrelling with the informant in

the courtyard of the informant. However, she later on altered her deposition to testify that she did not see the accused or the informant rather she

heard the voice of the accused from a distance of about 50 feet and could identify the accused from his voice. The P.W.2 also testified that she and

P.W.3, were both plucking tea leaves in the Tea Garden adjacent to the house of the informant and upon hearing the hue and cry reached the place of

occurrence and found the deceased in an injured state. This portion of the evidence is not completely supported by the evidence of P.W.3. From the

testimony of P.W.3, it is evident that she had visited the place of occurrence twiceâ€"First when she heard hue and cry she found the deceased lying

on the courtyard and she had poured some water on her mouth but she did not notice any injury on the deceased. She did not depose about the

presence of any person there including the accused. Later, upon being called by the nephew of the informant, she and P.W.2 both went to the place of

occurrence and then saw the deceased in an injured state being put in a handcart by the P.W.1â€"the informant and the husband of the deceased. It is

also to be noticed from the evidence presented by the prosecution that there is serious discrepancy in respect of the presence of the informant and the

accused at the place of occurrence. The P.W.1 in his testimony deposed that he was not present at the time of occurrence and that he was informed

about the occurrence only after he reached home and he did not find the accused in the place of occurrence. P.W.3 in her testimony did not see any

person when she went to the courtyard for the first time except for the deceased, who was lying on the floor. But there was no injury noticed. She

also does not depose about any quarrels between the P.W.1 and the accused at the place of occurrence or its vicinity, prior or after the occurrence.

What is left is the evidence of P.W.2, who has been declared Hostile. Even if it is accepted on the basis of the evidence of P.W.2, that the accused

was indeed present around the time of occurrence, in the absence of any other explanation and/or any other corroborating evidence it cannot be said

that the circumstances presented by the prosecution have convincingly satisfied the hypothesis of the guilt of the accused and not any other

hypothesis.

In view of the above discussions we are satisfied that the circumstances presented by the prosecution seeking to establish the hypothesis of the

guilt of the accused cannot be said to have been established beyond reasonable doubt on the basis of the evidences adduced in the Trial. We are

satisfied that the learned Additional Sessions Judge, Nagaon was not justified in convicting the appellant by accepting the hypothesis of guilt of the

accused, solely relying upon the evidence adduced by the P.W.2 and who was also declared Hostile. We hold that the evidences presented by the

prosecution before the Trial Court were not sufficient to come to the sole hypothesis pointing towards the guilt of the accused/appellant beyond

reasonable doubt.

We are conscious of the heinous crime committed leading to the death of the deceased and are equally not oblivious to the pain and suffering of

the relatives of the victims. However, in the absence of conclusive evidences leading solely to the guilt of the accused we have no other option but to

interfere with the conviction of the accused by the Trial Court below. We concur with the ratio laid down by the co-ordinate Bench of this court in

Sikandar Ali â€"Vs- State of Assam reported in 2010 (3) GLT 538 relied on by the learned Amicus to be applicable in this case also.

For all the aforesaid reasons, the conviction of the accused by the learned Sessions Judge, Nagaon vide Judgment and Order dated 20.06.2017

under Section 302 of Indian Penal Code is hereby interfered with, set aside and quashed. Appeal is accordingly allowed.

The accused is directed to be set free forthwith.

Send a copy of this Judgment to the Superintendent, District Jail, Nagaon, who will furnish a copy of the same to the accused.

Send down the LCR with a copy of the Judgment.

Before parting with the case record, we would like to put on record our appreciation of the learned Amicus Curiae, Mr. Azad Ahmed, Advocate

for rendering his valuable assistance to the court during the hearing of the present Criminal Jail Appeal. He may be paid the remuneration as payable

presently by the Assam State Legal Service Authority.