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IN THE HIGH COURT OF GAUHATI
MIR ALFAZ ALI, S. HUKATO SWU, JJ.
Motilal Gorh @ Lity And Anr — Appellant
Versus
State Of Assam And Anr — Respondent
Criminal Appeal No. 258 of 2017
Decided on : 02-12-2019
Indian Penal Code – Section 302 – Criminal Procedure Code – Section 161, 357 A – Evidence Act – Section 25 – Impugned judgment – Guilty – Compensation – This appeal is directed against judgment and order passed by learned Addl – Sessions Judge, Tinsukia in Sessions Case – By said judgment, learned Addl. Sessions Judge convicted appellants under section 302 IPC and sentenced them to imprisonment for life and fine each with default stipulation – Held, It is settled position by now that a criminal case solely resting on circumstantial evidence, prosecution is required to prove solidly and conclusively all circumstances beyond reasonable doubt and circumstances so proved, taken cumulatively must form a complete and unbroken chain of events leading to inescapable conclusion, that it was none but accused/appellant, who committed offence – In other words, chain of circumstances must be consistent only with guilt of accused and inconsistent with his innocence – In facts and circumstances of present case, court is of considered opinion that neither circumstances relied by learned trial court have been proved conclusively beyond reasonable doubt, nor chain of events was complete so as to lead an irresistible conclusion that it was none else, but appellant was perpetrator of offence – Therefore, conviction and sentence of appellants on basis of such circumstantial evidence, where chain was incomplete, cannot be maintained – Appeal Allowed
JUDGMENT :
Mir Alfaz Ali, J.
Heard Mr. S.Islam, learned counsel for the appellants and Mr. M. Phukan, learned Additional Public Prosecutor for the State.
2. This appeal is directed against the judgment and order dated 22-07-2016 passed by the learned Addl. Sessions Judge (FTC), Tinsukia in Sessions Case No.251(M)/2014. By the said judgment, the learned Addl. Sessions Judge convicted the appellants under section 302 IPC and sentenced them to imprisonment for life and fine of Rs.30,000/- each with default stipulation.
3. According to prosecution, on 30-07-2014 at about 10 pm, the appellant Motilal Garh @ Lity killed the deceased Sonam Sherpa by hacking him with a dao and left the body in a cultivation field. Nima Sherpa (PW-1), brother of the deceased lodged the FIR (Ext.-7), on the basis of which, police registered Margherita PS Case No. 186/2014 under sections 302/34 IPC and commenced investigation. In course of investigation, police recorded the statement of the witnesses, prepared inquest report and sent the body for post mortem examination.
4. Dr. Hemen Buragohain (PW-3), who conducted the post mortem examination on the body of the deceased found the following injuries :-
(i) Vault of scalp size 7cm x 3cm x 2 cm. Direction- horizontal bone, membrane underneath is cut.
(ii) Back of scalp size 10cm x 3cm x 4 cm horizontal occipital bone membrane and brain matters are cut.
(iii) Right side of scalp. Direction Anterior posterior bone underneath is cut.
(iv) Back of neck. Horizontal, size 10cm x 5cm x 3cm. 2nd cervical vertebrae and spinal cord are cut.
(v) Right wrist joint size 5cm x 2cm x 1 cm.
(vi) Mid part of forehead size 3cm x 2cm x bone depth.
5. In the opinion of the doctor, cause of death of the deceased was coma as a result of injury No. 4. All the injuries were ante-mortem and caused by sharp weapon. On conclusion of the investigation charge-sheet was laid against both the appellants u/s 302/34 IPC and eventually they stood trial.
6. In course of trial, learned Addl. Sessions Judge framed charge against the appellants under Sections 302/34 IPC, to which they pleaded not guilty. Prosecution examined 9 (nine) witnesses to bring home the charge against the appellants and on appreciation of evidence, the learned Addl. Sessions Judge convicted the appellants and awarded sentence as indicated above.
7. Learned counsel for the appellant submits that there was no eye witness of the occurrence and the circumstances relied by the learned Sessions Judge also could not be proved conclusively and therefore, conviction and sentence of the appellants cannot be sustained.
8. Learned Addl. Public Prosecutor, Mr. M. Phukan supporting the impugned judgment, contends that the time of occurrence as reflected in the medical evidence together with the evidence of PW-1 and PW-5 points to the appellants being the perpetrator of the offence and therefore, the impugned judgment of conviction and sentence of the appellants warrants no interference.
9. We have considered the submission made by the learned counsel for the parties and also meticulously scrutinized the evidence brought on record. Evidently there was no eye witness of the occurrence and the learned Sessions Judge primarily relying on the following circumstances recorded the conviction of the appellants
(ii) On the previous day of the occurrence the appellants came to the house of the victim and took him along with them.
(iii) There was quarrel between the victim and the appellant Motilal Garh and confession made by Motilal.
(iv) Recovery of the weapon of offence on being led by appellant Motilal.
(v) A pair of 'chappal' found in the place of occurrence, which was identified to be of the appellant Sinu Garh.
10. The PW-1, who was also the informant of the case and the brother of the deceased, deposed, that on the day of occurrence both the accused persons came to his house and called his brother (deceased) and took him with them
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