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IN THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
LANUSUNGKUM JAMIR, MRIDUL KUMAR KALITA, JJ.
Azizul Hoque @ Batchu Dhubri, Assam – Appellant
Versus
The State Of Assam, rep. By PP, Assam – Respondent
Crl. A.(J.) No.69 Of 2019
Decided On : 11-08-2023
Indian Penal Code, 1860 - Section 302, 120B, 392, 201, 34 – Criminal Procedure Code, 1973 - Section 164 - Indian Evidence Act, 1872 - Section 25 and 26 - Constitution of India, 1950 - Article 20(3) - Murder offence – Criminal conspiracy - Appeal against conviction - Appeal has been preferred against judgment and order whereby appellant was convicted – Evidence on record and remaining circumstances which are fully established during trial does not form a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with innocence of appellant. Para 53.
Finding of the Court: Investigating Officer himself failed to categorically state as to who were those villagers who saw appellant carrying deceased in a bicycle, neither any clarification has been given by Investigating Officer as to why those villagers were not enlisted as prosecution witnesses in this case – Court is of opinion that circumstances enumerated of impugned judgment has not been fully established by prosecution side in this case - Impugned judgment, from which conclusion of guilt of appellant has been drawn by learned trial Court, are not fully established - Evidence on record and remaining circumstances which are fully established during trial does not form a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with innocence of appellant - Impugned judgment passed by learned Additional Sessions Judge is hereby set aside.
Result: Appeal allowed.
JUDGMENT :
(Mridul Kumar Kalita, J.)
1. Heard Mr. A. Ahmed, learned counsel for the appellant who is led by Mr. H. R. A. Choudhury, learned Senior Counsel. Also heard Dr. B. N. Gogoi, Amicus Curiae as well as Ms. S. Jahan, learned Additional Public Prosecutor for the State of Assam.
2. This Jail Appeal has been preferred against the judgment and order dated 20.12.2018 passed by the Court of learned Additional Sessions Judge, Bilasipara in Sessions Case No. 02/2018, whereby the present appellant, namely, Azizul Hoque @ Batchu was convicted under Section 392/302/201 of IPC and was sentenced to rigorous imprisonment for life and to pay a fine of Rs. 25,000/-in default to undergo rigorous imprisonment for one year under Section 302 of IPC. He was further sentenced to rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/-in default to undergo another 6 months rigorous imprisonment under Section 392 of IPC. He was also sentenced to undergo rigorous imprisonment for 3 months and to pay a fine of Rs. 2,000/-in default to undergo rigorous imprisonment for 3 months under Section 201 of the IPC. All the sentences were directed to run concurrently.
3. The facts relevant for adjudication of this appeal, in brief are as follows:
4. On receipt of the FIR, the officer in-charge of Sapatgram Police Station registered Sapatgram P. S. Case No. 173/2017 under Section 302/34 of IPC and one Habibur Rahman S. I. of police station was entrusted to conduct the investigation. On completion of investigation, the investigating officer laid charge-sheet against Azizul Hoque @ Batchu (present appellant) and one Mominul Hoque @ Moinul Hoque under Section 120B/392/302/201/34 of the IPC. Both the accused, namely Azizul Hoque @ Batchu (present appellant) and Mominul Hoque @ Moinul Hoque were in custody when the trial was initiated.
5. After hearing learned counsel for both sides and perusal of materials on record, learned Additional Sessions Judge, Bilasipara framed charges under Section 392/302/201/34 IPC against the accused persons, namely Azizul Hoque @ Batchu (present appellant) and Mominul Hoque @ Moinul Hoque and when the charges were read over and explained two accused persons they pleaded not guilty and claim to be tried.
6. It also transpires from the records of Session of Case No. 02/2018 that, on 12.04.2018, accused Mominul Hoque @ Moinul Hoque was allowed to go on bail by learned Additional Sessions Judge on certain conditions. However, after obtaining bail accused Mominul Hoque @ Moinul Hoque was irregular in attending the trial Court and ultimately and he jumped bail and he was declared as an absconder on 30.11.2018 and the trial proceeded only against the present appellant who was in custody.
7. During the course of trial, the prosecution side examined 21 witnesses. On perusal of the impugned judgment it appears that learned trial Court convicted the present appellant on the basis of
Statement made under Section 164 Cr.P.C. is not a substantive piece of evidence, however, it may be used for purpose of corroborating substantive evidence.
Provisions of Section 106 of Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within knowledge of a person, burden of proving that fact is upon him.
Value of evidence as to confession depends on reliability of witness who gives evidence.
It is a settled legal proposition that conviction of a person accused of committing an offence, is generally based solely on evidence that is either oral or documentary, but in exceptional circumstan....
A conviction based on circumstantial evidence requires a complete chain of evidence that excludes every reasonable hypothesis except guilt; suspicion alone is insufficient for conviction.
Circumstantial evidence must establish a continuous chain linking the accused to the crime, and mere suspicion is insufficient for conviction.
The sufficiency of circumstantial evidence to establish guilt beyond reasonable doubt, caution against relying solely on the testimony of a hostile witness, and the absence of conclusive evidence poi....
The importance of proving guilt beyond all reasonable doubt in cases relying on circumstantial evidence.
Point of Law : Offence of Murder - Circumstantial evidence - Prosecution is required not only to prove circumstances but also to complete chain of circumstances on basis of which guilt of accused can....
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