Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Gau) 750

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MICHAEL ZOTHANKHUMA, MRIDUL KUMAR KALITA, JJ.
Rejina Karmakar – Appellant
Versus
The State of Assam – Respondent
Crl. Appeal (J) No. 11 of 2021
Decided On : 28-06-2023

Advocates:
Advocate Appeared:
For the Appellant : A. Tewari.
For the Respondent: B. Bhuyan.

Point of Law: It is well settled that in a case of circumstantial evidence, circumstances should be such so as to lead to only one irresistible conclusion, which is incompatible with innocence of accused.

Headnote:
Indian Penal Code, 1860 - Section 302 – Criminal Procedure Code, 1973 - Section 313, 161 - Evidence Act, 1872 - Section 106 - Murder offence – Appeal against conviction - PW-2 stated that seeing injuries on head and other parts of dead body of his uncle, it appeared that appellant had killed his uncle – No motive has been sought to be established by prosecution, for appellant to have committed crime against deceased, especially when there is no eye-witness to crime - Para 30.
Finding of the Court:
Evidence adduced by parties do not establish guilt of appellant, inasmuch as circumstantial evidence does not exclude every possible hypothesis that appellant is guilty of crime - Evidence adduced do not form a complete chain and there are reasonable grounds for concluding innocence of appellant, given fact that investigation and evidence adduced by witnesses is woefully lacking in substance – Court is of view that five golden principles laid down by Hon’ble Apex Court for appreciating evidence against appellant are not conclusive in showing that appellant was perpetrator of crime resulting in death of deceased - No motive has been sought to be established by prosecution, for appellant to have committed crime against deceased, especially when there is no eye-witness to crime – Court is of view that Prosecution/State has not been able to prove guilt of appellant beyond all reasonable doubt - Appellant is accordingly acquitted of charge under Section 302 IPC.
Result: Ordered accordingly.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Mr. A. Tewari, learned counsel for the petitioner. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, appearing for the State of Assam.

2. This appeal has been preferred against the judgment dated 08.07.2020, passed by the court of the learned Additional Sessions Judge, Dibrugarh in Sessions Case No. 184/2018, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for another three months.

3. The prosecution case in brief is that an FIR dated 09.08.2018 was submitted by Prosecution Witness No. 2, (in short PW-2) before the Officer-In-Charge, Moran Police Station, Dibrugarh stating that at around 1:00pm, on 09.08.2018, he saw his uncle, namely, Haradhan Karmakar lying dead in his house. That his uncle had been living with the appellant, who was his live-in partner, as no marriage had been solemnised between them. The FIR also states that PW2 came to know that his uncle and the appellant used to quarrel with each other often and that on the night of 08.08.2018, a quarrel took place between them, whereafter the appellant left the house and stayed in the house of some other person. PW-2 stated that seeing injuries on the head and other parts of the dead body of his uncle, it appeared that the appellant had killed his uncle. Consequent to the FIR, Moran Police Station Case No. 219/2018 under Section 302 IPC was registered.

4. After investigating the case, the Investigating Officer submitted the charge-sheet, wherein he found a prima facie case under Section 302 IPC against the appellant. Charge under Section 302 IPC was framed by the learned Trial Court against the appellant on 05.02.2019, to which the appellant pleaded not guilty and claimed to be tried.

5. Subsequent to the recording of the evidence of the six prosecution witnesses (PWs) and examination of the appellant under Section 313 Cr.PC, the learned Trial Court convicted the appellant under Section 302 IPC and sentenced her to undergo rigorous imprisonment for life with a fine of Rs.1,000/-, in default rigorous imprisonment for another three months.

6. The learned counsel for the appellant submits that a perusal of the time of examination of the body of the deceased by the Doctor (PW1) and his opinion that the death had occurred between 12-18 hours earlier, proved that the death of the deceased could not have occurred during the night of 08.08.2018, as the death would have occurred between 8 p.m of 09.08.2018 to midnight of 09.08.2018. Further, the explanation given by the appellant under Section 313 Cr.PC showed that the appellant was not present in the house of the deceased on the said night, as she had been driven out from the said house by the deceased who had drunk liquor. He also submits that in matters of circumstantial evidence, the conditions laid down by the Apex Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, has to be present, to prove the guilt of the accused on the basis of circumstantial evidence, which is absent in the present case. He also submits that as the appellant has given her explanation with regard to the circumstances under which she had parted company with the deceased on the night of 08.08.2018 in terms of Section 106 of the Evidence Act, the prosecution was required to prove the guilt of the appellant beyond all reasonable doubt, which had not been done. He accordingly submits that as the learned Trial Court has convicted the appellant without there being any circumstantial evidence to prove the guilt of the appellant, the impugned judgment should be set aside.

7. The learned counsel for the appellant submits that the circumstantial evidence relied upon by the learned Trial Court to convict the appellant does not point towards the guilt of the appellant. Further, the last seen together theory is not applicable in the fact