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IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Achintya Malla Bujor Barua, Robin Phukan, JJ.
Sirish Basumatary S/o Late Pradip Basumatary – Petitioner
Versus
The State of Assam Rep. by the P.P. and Anr. – Respondents
Crl.A./279 of 2019
Decided On : 20-12-2021
Indian Penal Code, 1860 - Section 302 – Offence of Murder – Appeal - Investigation - Whether offence could have been committed by any other person other than the accused and if yes to do investigation - Ejahar was lodged by (ASI) of Police outpost Officer-in-Charge had verbally informed that a half burnt dead body of an unidentified girl was lying in jungle - Upon receiving such information, the informant immediately proceeded to the place of occurrence and found that the dead body was of a 14/15 years old girl, who was wrapped in dokhona (traditional dress for women of Bodo community) and further that the girl appeared to be belonging to Bodo/Rahba community. In Ejahar it was stated that it is suspected that some miscreant had killed girl and then set her on fire, so that the deceased girl could not be identified.
Finding of the court:
A perusal of the evidence, report and conclusion of the forensic authorities establishes that the saliva contained in the seized cigarette stubs and that of the accused and his blood group matched to the extent that all belonged to group “AB”. Merely because the saliva in the cigarette stubs and that of the accused matched to the extent that all belonged to the Group “AB” cannot by itself be a comprehensive piece of evidence to arrive at a conclusion beyond all reasonable doubt that the saliva contained in the two cigarette stubs contained the matching saliva of the accused - Mere correlation of being of the same group “AB” may be an indication, but it cannot be accepted to be a conclusion that the saliva in the two cigarette stubs and the saliva of the accused did comprehensively match with each other.
Result: Appeal allowed
JUDGMENT :
A.M.Bujor Barua, J.
Heard Mr. S. S. S. Rahman, learned counsel for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor for the State.
2. An Ejahar was lodged by Hafiz Ali Saikia (ASI) of Dhaligaon Police outpost before the Officer-in-Charge of Dhaligaon Police Station on 04.02.2012 inter-alia stating that at around 9:30 am of 04.02.2012 Jengma Basumatary, son of Manik Basumatary, a resident of Palashguri under Dhaligaon Police Station had verbally informed that a half burnt dead body of an unidentified girl was lying in the jungle of Khagrabari Reserve. Upon receiving such information, the informant Hafiz Ali Saikia immediately proceeded to the place of occurrence and found that the dead body was of a 14/15 years old girl, who was wrapped in dokhona (traditional dress for women of Bodo community) and further that the girl appeared to be belonging to Bodo/Rahba community. In the Ejahar it was stated that it is suspected that on 03.02.2012 some miscreant had killed the girl and then set her on fire, so that the deceased girl could not be identified. Upon investigation, the charge-sheet no. 29/2012 was submitted before the learned Chief Judicial Magistrate, Bongaigoan and upon being committed the case to the learned Court of Sessions, the same was registered as Sessions Case No. 75(D)/2012 (Old) at Bongaigaon. Later on, when Chirang district was bifurcated from Bongaigaon, the case was transferred from the Court of learned Sessions Judge, Bongaigaon to the learned Sessions Judge, Chirang and on being transferred, the same was re-numbered as Sessions Case No. 129(D)/2015 under Section 302 of the IPC.
3. In course of the trial, the informant Hafiz Ali Saikia was examined as PW-3 and in the evidence, the witness stated that on being informed by Jengma Basumatary over phone that a dead body of a girl was found lying in the Khagrabari Reserved Forest in a burnt state, the witness after making the necessary G.D. entry, proceeded to the place of occurrence and exhibited the G.D. entry as Ext.3. We noticed that in his deposition the PW-3 stated that he was informed by Jengma Basumatary over phone that a deadbody of a girl was found in the Khagrabari Reserved Forest, but in the exhibited G.D entry, it is recorded that Jengma Basumatary, a resident of Roumari Palasguri arrived at the police outpost and verbally informed that a half burnt dead body of an unidentified girl was lying in the Khagrabari Reserved Forest. The PW-3 further deposed that upon reaching the place of occurrence, he saw that a dead body of a girl was lying in a burnt state and thereupon, informed the Officer-in-Charge of Dhaligaon Police Station, where upon, the Officer-in-Charge reached the place of occurrence immediately and he entrusted another police personnel with the charge of investigation. In course of examination, PW-3 stated that certain whitener eraser is seen to have been applied in the contents of the Ejahar and further deposed that both the hands of the deceased girl were tied up and the rope has got burnt and further that the witness also noticed a mark on the neck of the girl and mark was caused as a result of her neck being fastened with a rope. The inquest on the dead body was done by an Executive Magistrate namely, Sanjeev Kr. Sharma, ACS, who was the Circle Officer of Sidli at that relevant point of time. The inquest report is exhibited as Ext.2 and it shows the time of inquest to be 12:01 p.m. of 04.01.2012 and we have verified the carbon copy of the original in hand writing which also shows the date to be 04.01.2012, although the date of the death in the Ejahar is 03.02.2012. While describing the injury mark as to, if any, on the body, the inquest report provided that the body is half burnt and one rob (sic) is found around the neck. The inquest report provided that in the opinion of the witnesses and the police, the cause of death was because of being burnt forcefully. The Circle Officer who had conducted the inquest report
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