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2017 Supreme(Gau) 1006
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
M.R.PATHAK, HITESH KUMAR SARMA, JJ.
Anil Nath, Son of Late Srikanta Nath – Appellant
VERSUS
State of Assam – Respondent
Criminal Appeal (J) No. 15 of 2014
Decided on : 08-01-2017
Advocate Appeared:
For the appellant :Mr. Z Hussain, Amicus Curiae. Advocate
For the Respondent: Mrs. SH Bora, Addl. P.P.
Headnote:
Indian Penal Code, 1860 – Section 302 – Criminal Procedure Code, 1973 – Section 161 and 313 – Evidence Act – Section 106 – Hypothesis Compatible – Circumstantial Evidence – Guilt of accused – Credibility – Prosecution Evidence – Learned Amicus Curiae appearing on behalf of accused-appellant learned Additional Public Prosecutor Assam course of investigation, police visited place of occurrence conducted inquest over dead body of deceased and sent dead body for autopsy examination seized one spear stained with blood from house of accused-appellant along with one bamboo stained with blood collected evidence including statements of witnesses and finally submitted charge sheet against accused/appellant – Held, Accused appellant were seen together time gap between point of time when accused and deceased were last seen alive and when deceased is found dead is considerably large approximately two hours hence possibility of any person other than accused being author of crime cannot be ruled out prosecution’s burden to establish all facts by independent proof cannot be relieved because of non-explanation of any particular circumstance by accused – As laid down in case of Anjan Kumar Sarma it is only in a case where other links have been satisfactorily made out and circumstances point to guilt of accused circumstance of last seen together and absence of explanation would provide an additional link which completes chain absence of proof of other circumstances only circumstance of last seen together and absence of satisfactory explanation cannot be made basis of conviction – Appeal is accordingly allowed.
H.K. Sarma, J
This is an appeal from jail, preferred by accused/appellant, Anil Nath, who has been convicted by judgment and order dated 18-12-2013, passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 31/2008, arising out of GR Case No. 802/2000, under Section 302 of the IPC, to undergo imprisonment for life and also to pay a fine of Rs. 5,000/-, in default, further rigorous imprisonment for 3 (three) months.
2. I have heard Mr. Z Hussain, learned Amicus Curiae, appearing on behalf of accused-appellant, and Mrs. SH Boro, learned Additional Public Prosecutor, Assam.
3. The fact of the case is that on 15-06-2000, at about 9.00 pm, the accused-appellant went to the house of the informant, Niranjan Sarma, and induced his younger brother to go with him to his house, and thereafter, the accused-appellant killed him by causing injuries with sharp weapon.
4. On the above facts, the informant lodged an FIR with the Sarthebari Police Station, which was registered as Sarthebari Police Station Case No. 73 of 2000, under Sections 341/302 of the IPC.
5. During the course of investigation, police visited the place of occurrence, conducted inquest over the dead body of the deceased and sent the dead body for autopsy examination, seized one spear stained with blood from the house of the accused-appellant alongwith one bamboo lathi stained with blood, collected evidence including the statements of the witnesses under Section 161 of the Cr.P.C., and finally, submitted charge sheet against the accused/appellant, under Sections 302 of the IPC.
6. Since the case is exclusively triable by the Court of Sessions, learned trial Court of Chief Judicial Magistrate, Barpeta, committed the case to the Court of learned Sessions Judge, Barpeta. Learned Sessions Judge, Barpeta, having found prima facie case and sufficient materials to proceed against the accused-appellant, framed a formal charge against the accused-appellant, under Section 302 of the IPC, to which the accused-appellant pleaded innocence.
7. During the trial, prosecution examined as many as 10 witnesses and the defence examined none. After closer of prosecution evidence, statement of the accused-appellant was recorded under Section 313 of the Cr.P.C. and in his such statement, he declined to adduce evidence in his defence.
8. When we look into the evidence on record, the evidence of pw 1, Sri Niranjan Sarma is that at about 9 p.m the accused went to his house and called his deceased brother Surjya Sarma who went along with the accused. Thereafter, at about 11 p.m one Bichitra Das, a co-villager informed him that deceased is lying in a drain. Pw 1, thereafter, went to the said place and found his brother dead.
9. Pw 2 Kanak Nath deposed that at about 11 p.m he was informed that a dead body is lying on the drain. He deposed that he had accompanied the Police team to the residence of accused appellant where the accused admitted before the Police of having killed the deceased Surjya Nath. Pw 2 also deposed that Police seized the blood stained spear. He also deposed that he had seen blood stains on the verandah of the residence of the accused.
10. Pw 8, Prafulla Sharma also deposed that he had accompanied the police team to the residence of the accused where the accused admitted that he had killed Surjya Sarma and also produced the spear used in killing the deceased.
11. The evidence of pw 3, Raben Nath, pw 4, Bichitra das, pw 5 Chandra Kanta Sarma, pw 6, Banajait Adhikary, pw 9, Niranjan Nath, pw 10, Arun Das, do not establish any incriminating circumstances against the accused.
12. It may be pointed out here that so far as the alleged admission of guilt by the accused appellant, before pw 2, Kanak Nath and pw 8, Prafulla Sharma is concerned, the same is inadmissible in evidence because it was made in the presence of Police Officer and is accordingly hit by Section 25 of the Evidence Act. The fact, however, that a spear was seized from the residence of the acc
