Subut Saikia vs The State Of Assam & Anr.

(Shamima Jahan, J)

Heard Mr. U. Choudhury, learned Legal Aid Counsel for the appellant. Also heard Ms. A. Begum, learned Additional Public Prosecutor for the State.

This is a criminal appeal filed by the convict appellant under Section 374(2) of the Cr.P.C., 1973 challenging the judgment and order dated 12.05.2022 passed by the learned Sessions Judge, Charaideo in Sessions (CHA) Case No. 74/2018. By the said judgment and order, the appellant was convicted under Section 302 of the I.P.C. and was sentenced to undergo imprisonment for life with a fine of Rs. 10,000/- and in default of the payment of fine, he was further directed to undergo simple imprisonment for a period of one month.

The present case started with lodging of the First Information Report on 17.07.2017 by the father of the deceased before the Officer-In-Charge, Sapekhati Police Station stating inter alia that on 16.07.2017 i.e. a day prior at about 04:30 pm, his daughter i.e. the deceased and his son in law along with their six months old child came to his house and had spent the night in his house. The informant further stated that on the next day at around 08:00 am, he and his wife left for their work leaving his daughter and son in law in their house and that taking advantage of his and his wife's absence, at around 10:30 am, his son in law i.e. the appellant killed his daughter by hacking her on the neck and face with a sharp weapon. He also stated that the appellant after committing the offence, fled away from his house by taking his minor son. The informant, thereafter stated that the local people informed him about the incident and that he came to his house and found the dead body of his daughter. On completion of the investigation, the Investigating Officer submitted charge sheet against the appellant on 31.10.2017 under Section 302 I.P.C. Thereafter, on completion of the necessary procedures of law, the Trial Court framed charge against the appellant on 04.12.2018 under Section 302 I.P.C. During the trial, the prosecution examined seven numbers of witnesses including the Investigating Officer and the medical doctor. Thereafter, the appellant was examined under Section 313 of the Cr.P.C., after which the Trial Court on hearing the arguments on behalf of the State and the appellant passed the judgment and order dated 12.05.2022 convicting the appellant and sentencing him as mentioned above. The Trial Court had convicted the appellant on the circumstances mentioned here-in-below:

the appellant, the deceased and their minor child was in the house on the day of occurrence without the presence of anyone else as it was discerned from the evidence of PW1 and PW2 i.e. the informant and his wife.

ii) the parents of the deceased returned on receiving the information that their daughter was killed.

iii) On reaching the place of occurrence, the parents of the victim did not find the appellant.

iv) The evidence of PW4 also demonstrated that upon hearing hue and cry when he reached the place of occurrence, he saw the dead body of the informant's daughter and the appellant was found fleeing away from the scene of the crime.

It was also in the evidence of PW6 that the appellant fled by taking his child.

vi) No explanation was given by the appellant regarding his absence after his wife was killed.

On the basis of the aforesaid circumstances, the learned Trial Court convicted the appellant and sentenced him for life imprisonment under Section 302 I.P.C.

The informant was examined as PW1 and he stated before the Trial Court that at the time of the incident, he was at his shop and that at around 11:00 am, he was informed that something has happened in his house. He further stated that the appellant along with his wife and their minor seven month old son was at his house at the time of incident. He also stated that on receiving the information at 11:00 am, he rushed to his house and saw his daughter lying dead with her neck almost severed, with a dao lying nearby. This witness thereafter stated that he did not find the appellant and his grand child and that he was informed that the appellant had surrendered at the Police Station by the Police and further that the appellant had confessed his guilt.

The informant was cross-examined and he stated that he came out at 09:00 am and that he does not know about any visitors after he left and further that his wife also came out after his departure. He was further cross-examined and therein he made two contrary statement to the effect that he came out at 09:00 am from his house after his wife left and again he stated that he came out at 09:30 am/10:00 am. He further stated that one of his sister in law informed that something had happened in his house and that he was the first one to see the dead body of his daughter, although he saw 15-20 persons gathered at his place. He further reiterated that he does not know if anyone had come after he left his place.

The wife of the informant was examined as PW2 and she stated that at around 10:30 am, on the day of occurrence, she was at a different place taking a patient to the hospital and that during the said time, her daughter, the appellant and her grand child was at home. She further stated that she was called to her house by her husband by calling her over telephone and when she reached near her house, a lady informed her that appellant had killed her daughter and that upon entering her house, she saw her daughter lying dead with injuries on her body. She also stated that police was informed and that they came and informed her that the appellant had surrendered.

This witness was cross-examined and she stated that she came out from her house on the day of occurrence at 09:00 am and that her husband called her up at 11:30 am. She also stated that she is not aware as to whether appellant went out from her house after she left and also that if someone else had come to her house at that time.

PW3 is the shopkeeper in whose shop, it is claimed that the appellant was working and this witness stated before the Trial Court that the appellant, on the day of occurrence was in his shop and that at around 10:00 am on that day, the appellant went to his house by informing him that something had happened in his house. This witness thereafter stated that after half an hour, the appellant came back and informed him that someone had killed his wife and that on being apprised, this witness went to the house of the informant wherein he was further informed that appellant had killed the deceased.

This witness was cross-examined. He stated that he did not tell the police that the appellant over phone told him that someone had cut his wife and also that he did not tell before the police that he heard about the incident that it was the appellant, who had killed the deceased.

PW4 is a neighbour and he stated that he heard hue and cry in the house of the informant and when he reached the said house, he was told that appellant had killed his wife. During cross-examination, this witness stated that he did not tell the police that seized weapon was given to police by the informant.

The doctor, who conducted the autopsy on the body of the deceased was examined as PW5 and he deposed before the Trial Court that he conducted the post-mortem examination on the body of the deceased on 18.07.2017 at around 04:00 pm and found cut injuries over larynx deep into external carotid artery and thyroid cartilage. The doctor opined that death was due to syncope as a result of bleeding from major vessels.

Another co-villager was examined as PW6 and he stated that the appellant had surrendered before the Court and during his cross-examination, he deposed that appellant and the deceased had a love marriage and that on the day of occurrence, he heard that appellant took away is child.

The Investigating Officer was examined as PW7 and he stated before the Trial Court that information with regard to killing of the deceased was given by the village headman over telephone that daughter of one Chandra Konwar was killed by her husband i.e. the appellant. This witness thereafter stated that on receipt of the information and by entering the same in the general diary as GDE No. 285, he went to the place of occurrence and conducted the investigation. The Investigating Officer further stated that the appellant surrendered before the Court and the written F.I.R was lodged. He thereafter stated that he collected the post-mortem report as well as he had sent the seized weapon to the FSL and that on joining of another Officer-In-Charge, he handed over the Case Diary and that subsequently, charge sheet was submitted.

During the cross-examination, this witness stated that he received the first information at 11:00 am and that he reached the place of occurrence at 11:30 am, wherein he seized the weapon of offence produced before him by the informant. This witness also stated that PW3 did not tell before the police that appellant informed him about the matter. This witness also stated that PW2 also did not tell before the police that her husband informed about the case by using the phone of another person.

These are the evidences produced by the prosecution. Thereafter the appellant was examined under Section 313 Cr.P.C. and during the said examination, the appellant had denied all the incriminating materials put to him and in answer to the query as to whether, he would like to say something in the case, he said that he has nothing to reply. The appellant had also not produced any defence witness to defend his cause.

Mr. U. Choudhury, learned Legal Aid Counsel appearing for the appellant submitted that the time gap between leaving of the parents of the deceased and the information given to the father of the deceased was too short so as to bring home the fact that it was the appellant, who had killed the deceased. He further submits that PW3 had stated in clear terms that appellant was at his shop on the day of occurrence in the morning hours and that the appellant at around 10:00 am went to his house informing him that something has happened and that after half an hour time, the appellant informed the said witness that someone has killed his wife, at which this witness went to the house of the informant wherein he was further informed that appellant had killed his wife. The learned Counsel therefore submits that the informant had stated that he had left his house at 09:30 am/10:00 am and the appellant came from the shop of PW3 at around 10:00 am. As such, he submits that the time shown by the statements of the witnesses demonstrated that there is no possibility that appellant had killed his wife. He further submits that there is no evidence on record that appellant came to his in laws house on 16.07.2017 and stayed there for the entire night. He also submits that the last seen theory is not applicable in the instant case in view of the fact that appellant was stated to have been working in the shop of PW3 and there is every possibility of someone else coming in the house of the informant during the time, after which the informant and his wife left their house. The learned Counsel also submits that although the weapon of offence was left at the place of occurrence and was seized and the same had blood stain but the said weapon was not connected with the offence at hand. He also submits that had it been the appellant who had committed the offence, he would not have left the weapon with blood stain at the place of occurrence. To substantiate his argument, he has referred to the following judgments:

ii) Manoj @ Munna Vs. State of Chhattisgarh Reported in (2025) SCC online SC 2858 by which the Apex Court had observed that only that when the prosecution establishes the case against the accused person, the burden would shift to the said accused person to explain the circumstances leading to the death of the deceased under Section 106 of the Evidence Act.

iii) Must.Suriya Khatun Vs. State of Assam delivered in Criminal Appeal No.289/2012, by which this Court had held that in case of circumstantial evidence, the chain of circumstances should be well established against the accused person.

iv) Matru @ Girish Chandra Vs. State of Uttar Pradesh Reported in (1971) 2 SCC 75, by which the Hon’ble Apex Court had held that absconding of the accused person cannot lead to the conclusion that he is guilty of the offence.

On the other hand, Ms. A. Begum, learned Additional Public Prosecutor for the State submits that the incident had occurred at 10:30 am on the day of occurrence. She stated that before 10:30 am, the parents of the deceased had left their place and that at 10:00 clock, the appellant came to the house of the informant and that the deceased was killed after that, which shows that appellant is the perpetrator of the offence. She further submits that if the appellant had not committed the offence and he saw his wife being killed upon reaching the place of occurrence, it was the duty on his part to inform the parents at the very first instance. According to her, not informing the parents of the deceased was a conduct to be taken in favour of the prosecution. She submits that the appellant was present with this wife, when his wife was alive and that he fled with the minor child without informing the parents and his surrendering before the police coupled with no explanation given by the appellant are circumstances, which are relevant in the present case. She as such submits that the appellant had killed his wife and the judgment and order was correctly pronounced. She has relied on a judgment rendered by the Hon’ble Supreme Court in Harjinder Singh @ Kala Vs. State of Punjab Reported in (2025) SCC OnLine SC 3242 by which the Apex Court had observed that the chain of circumstances coupled with non-explanation by the accused person is enough to bring him the guilt of the said accused person.

These are the submissions of the learned Counsels appearing for both the parties.

The present case rest on circumstantial evidence and it is a settled position of law that circumstances appearing against the accused person should make a chain without any breaking elements so as to establish that there can be no other conclusion but to the conclusion that the accused person had committed the offence. In Sharad Birdhi Chand Sarda Vs. State of Maharashtra Reported in (1984) 4 SCC 116, the Hon’ble Apex Court had observed that circumstances from which the conclusion of guilt is to be drawn should be fully established without their being any gap in it. The Hon’ble Supreme Court had formulated five golden principles and had ascribed them as Panchsheel for proof in a case based on circumstantial evidence. The relevant portion in the said judgment is quoted here-in-below:

By considering the requirements set out by the Hon’ble Apex Court, it is the duty of this Court to look into the circumstances available in the instant case with circumspection and also to see whether they are fully established without any break in between.

At the very first instance, it is imperative on us to consider the evidence of PW1 and PW2 in whose house, the appellant was stated to have stayed on the previous night as well as on the day of occurrence. The informant i.e. father of the deceased deposed before the Trial Court that while he was at his shop, he was informed at around 11:00 am that something has happened at his house. He then stated that at that juncture the appellant, his wife i.e. his daughter and seven month old son of the appellant were present. He also stated that upon receiving the information, he ran towards his house and he saw his daughter with a cut on her neck. He also stated that he saw a machete lying near the body of the deceased and further that he did not find the appellant or his grandson.

In his examination in chief, he however did not state at what time on the day of occurrence, he came out of his house. He, however, stated during his cross-examination that he came out from his house at 09:00 am on the day of occurrence. He also stated that after he went out of his house, his wife also came out and that his wife told him that she came out at 10:00 am. However, during his further cross-examination, he stated in clear terms that he came out at 09:30 am/10:00 am along with the statement at the same stretch that he came out at 09:00 am with another statement that he left after his wife left the house. Further there is another discrepancy to the effect that during his further cross-examination, he stated that at 11:30 am, his sister in law had informed over telephone that something has happened in his house. There is also a further statement that this witness thinks that at 09:30 am/10:00 am, the incident had occurred.

The evidence of PW2 i.e. the wife of the informant also shows certain discrepancies in the time she left the house as well as the time she was informed about the incident. She submits in her examination in chief that at 10:30 am on the day of occurrence, she was at a different place and that at that time, the appellant, her daughter and her grant child were at home. Although it was not specifically stated as to what time she was informed about the incident but it can be deduced from her evidence that her husband informed her at 10:30 am on the day of occurrence. However during her cross-examination, she stated that she went out of the house at 09:00 am and that her husband called her at 11:30 am. Be that as it may, and also due to the fact that some difference in time stated by the witnesses will always not be fatal in a case, however, the fact remains that both the witnesses have stated that the appellant, the deceased and their grand son were at home and that they had left the place in the morning hours on the day of occurrence.

It is also in the evidence of both PW1 and PW2 that they were not aware as to whether there was any visitor in their house and as to whether the appellant had gone out of the house after they left the house. It is further in the evidence of PW3 that on the day of occurrence, the appellant was working in his shop in the morning hours i.e. before 10:00 am on 17.07.2017. It is also in the evidence of the said witness that while the appellant was working at his shop, the appellant told him that something has happened and that at around 10:00 am, he left for his house. This witness also stated that after half an hour, the appellant called him saying that someone has cut his wife i.e. the deceased and on hearing the same, this witness went to the house of the informant and that the informant told him that appellant had killed his daughter.

A contradiction in the statement of the PW3 before the Trial Court and before the police was seen by the defence and on being questioned, this witness stated that he did not tell police that appellant had informed him over telephone that someone has cut his wife. There is also a contradiction to the effect that this witness stated that he did not tell police that he heard that appellant killed the deceased. It is no res integra that in order to prove a contradiction with regard to the statement before the Trial Court and the statement before the police, at first the statement is put to the witness and if the witness accepts the contradiction, then the contradiction stands proved and if it is denied by the witness to the extent that he had stated certain statement before the police then the said statement is placed before the police and if the police denies that it has not been made by the witness, then the contradiction stands proved. In the instant case, PW3 had admitted that he did not tell the police about information given by the appellant to him and also about hearing that appellant had killed the deceased. As much, the contradiction stands proved.

It is noticed that the informant had himself stated in his further cross-examination that he came out of his house at 09:30 am/10:00 am and by seeing the evidence of PW3, it is noticed that at 10:00 am, the appellant on receiving an information came to his house. Furthermore, it is also not stated in clear terms as to whether appellant went to his own house or to the house of his in laws at 10:00 am. Further it is also seen that there is discrepancy in the time at which the informant received the information in as much as in the further cross-examination, the informant stated that he received the information at 11:30 am while in his examination in chief, he stated that he received the information at 11:00 am. It is also in the evidence of both PW1 and PW2 that they are unaware as to whether someone else had come in the house of the informant or whether the appellant had left the house of the informant after they came out. In view of the same, the last seen theory cannot be made applicable in the instant case more so in view of the statement given by the PW3.

The Supreme Court time and again has held that if two views are available, the view which is in favour of the accused person should be accepted.

It is a settled principle of law as stated above that if two views are available, the benefit shall always go to the accused. It will be apposite to refer to the following observations of the Hon’ble Apex Court in the case of Sharad Birdhi Chand Sarda (Supra).

It has further been held by the Apex Court in yet another decision in Devi Lal Vs. State of Rajasthan Reported in (2019) 19 SCC 447 that in case, two views are possible, the one favouring the accused should be accepted. The relevant portion is quoted here-in-below:

In the instant case, it is seen that the appellant had gone from the shop of PW3 at 10:00 am on the day of occurrence to his house without however specifying that whether, he went to the house of his in laws or to his own house and even if considering the argument that he had gone to the house of in laws, the father in law of the appellant i.e. the informant had stated that he left the house at around 10:00 am in the morning. As such, the time factor does not support the prosecution case more so the house of the informant and the shop was situated nearby. The learned Trial Court had held that although PW3 had stated that appellant had left his shop at around 10:00 am, but the evidence of other witnesses that the appellant was not found after the crime was detected is taken as one of the circumstance. However, it is not clear as to whether the appellant had gone to his house or to his in laws house and as such that conclusion cannot be considered as valid in the facts of the instant case. Further non-availability of the accused person in the place of occurrence cannot be a circumstance against the said accused person, without the connecting facts established thereon. It will not be out of context to mention herein that had the deceased called the accused, when he was there in the shop and the accused person had gone on receiving the telephone from his wife, the matter would have been different. It is not in the evidence that the deceased called him, rather it is stated by PW3 that the appellant told him that something has happened and he left for his house. There are in fact two views possible here that the accused went to his in laws house and committed the offence or that the accused went to his own house as is stated before the PW3. In view of the settled position mentioned above, the view which is favourable to the accused has to be considered. Further the appellant leaving the shop at 10:00 am and the informant leaving his house at 11:00 am is also a fact which is favourable to the accused.

The evidence of a prosecution witness comes in favour of the appellant i.e. PW3 and it is not a case that the appellant had placed a defence witness, who had stated that the appellant was in his shop. The circumstance which comes in favour of the appellant had come from the statement of the prosecution witness itself.

It is also considered by the Trial Court that appellant had not explained whatever was in his exclusive knowledge in his examination under Section 313 of the Cr.P.C. However, it is the considered opinion of this Court that it is nowhere established in the instant case that appellant was with the deceased at the relevant point of time barring the bald statement of PW1 and PW2, who again had stated that they were not aware as to whether the appellant left their house, after they left or someone else came to their house before the incident. As such, there is every possibility that there are no facts which are in exclusive knowledge of the appellant related to the incident, which he is mandated to disclose in his examination under Section 313 Cr.P.C.

In the instant case, it is also seen and it has been stated by the witness that a machete was found lying near the body of the deceased and that the same had blood stains, which was handed over by the informant to the police. Although the said machete was sent for FSL examination, but the report of the forensic science examination reveals that there is blood on the machete and the + group of the blood was AB , but then the same was not compared with the blood of the deceased or blood of the appellant and as such, it is not proved that the said weapon was used in the commission of the crime.

As far as the appellant surrendering after the incident is concerned, the same also does not inspire the Court in as much as PW1 and PW2 had stated that the accused surrendered at Police Station. Further PW2 had stated that after the incident, police was informed and that they came and thereafter they informed that the appellant had surrendered before the police. This shows that the appellant surrendered before the police not very long after the incident and it has been held by the Supreme Court that surrendering before the police after the incident does not lead to any incriminating circumstance against the accused person. It is held that for various reasons, an innocent can appear before the police either for informing about the said incident or to save him from the clutches of the public. There is yet another discrepancy in the statements of the witnesses to the effect that although PW1 and PW2 had stated that the appellant had surrendered before the Police, but it is in the statement of PW6 and PW7 that the appellant had surrendered before the Court. It can be a mistake on the part of PW6 to have stated that the appellant surrendered before the Court, but the Investigating Officer arrayed as PW7 had also stated that the appellant surrendered before the Court. As such, it is not clear as to whether the appellant surrendered before the police or before the Court or whether the appellant had at all surrendered.

Further it is a settled position of law that in a case of circumstantial evidence, motive plays an important role. The Hon’ble Supreme Court in Dandu Jaggaraju Vs. State of Andhra Pradesh reported in (2011) 14 SCC 674 had categorically held that in order to prove a case based on circumstantial evidence, motive should be found out. The Apex Court had held as follows:

In the instant case, no motive was established behind the offence. It is nowhere in the evidence from where it can be discerned that the appellant had a motive to kill his wife. In absence of the same, a very important circumstance is missing out in the present case.

In view of the findings recorded above, more so in view of the fact that a complete chain of circumstances against the appellant is lacking, leading to the only conclusion that the appellant is the perpetrator of the offence, this Court finds it fit to interfere with the judgment and order passed by the learned Sessions Judge, Charaideo in Sessions (CHA) Case No. 74/2018. As such, the judgment and order dated 12.05.2022 by which the appellant was convicted under Section 302 I.P.C and sentenced to life imprisonment, is set aside and quashed.

The appellant is acquitted of the charge under Section 302 I.P.C and is directed to be released forthwith, if not required in any other case.

The Appeal is disposed of.

Return the case records.

No order as to costs.