JUDGMENT
I.A. Ansari, J.
1. The judgment and order under challenge was passed, on 12.1.1998, by the learned Sessions Judge, North Lakhimpur, in Sessions Case No. 18(NL) of 1995, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 1,000 and, in default, to suffer rigorous imprisonment for a further period of one month.
2. In a nut-shell, prosecution’s case, as unfolded at the trial, runs as follows:
One Sri Akon Bora of village Rajkhowa gaon lodged a written FIR, on 25.9.1994 at 7 AM, at Panigaon police out post, which falls under North Lakhimpur police station, stating to the effect that on the previous day at about 12 ‘O’ clock at night, while his elder brother, Nabin Chutia, was keeping watch on his ‘Muga’ plantation at his farm house, he was killed by some miscreants by giving blows with ‘dao’ and that at the time of occurrence, Nabin Chutia’s ploughman too was sleeping in Nabin Chutia’s company. Based on the FIR, police registered a case, started investigation and arrested the accused-appellant, namely, Kamal Bora. During his interrogation, the accused allegedly made a statement before the investigating officer that the ‘dao’ used by him in the commission of the offence had been kept concealed and he would be able to recover the ‘dao’. The accused-appellant allegedly led the investigating officer to a place near the said farm house and brought out, in the presence of witnesses, a ‘dao’, which had been kept concealed under the bushes at the said place. On completion of investigation, police laid charge-sheet against the accused-appellant under Section 302 IPC.
3. When the charge framed under Section 302 IPC was read over to the accused-appellant, he pleaded not guilty thereto. The prosecution examined as many as eight witnesses including the investigating officer. The accused-appellant was, then, examined under Section 313 Cr.PC and in his examination aforementioned, he denied that he had committed the offence alleged to have been committed by him, the case of the defence being, briefly stated, thus : No ‘dao’ was recovered at the instance of the accused, On the night of the occurrence, the accused witnessed a video show and on his return from the video show to the farm house, he saw Nabin Chutia lying dead there and, on witnessing the same, the appellant, out of fear, ran away to Nabin Chutia’s house raising hue and cry, but later on, police arrested him and falsely implicated him in the case as the perpetrator of the crime. The trial concluded in the conviction of the accused-appellant and the sentence, as hereinbefore mentioned, was passed against him. Hence, this appeal.
4. We have perused the relevant records. We have heard Mr. B. J. Talukdar, learned Amices Curiae, Mr. P. Bora, learned Public Prosecutor, Assam.
5. It may be noted, at the very out set, that according to PW-6 (Dr. A. S. Talukdar), he performed post mortem examination on the dead body of Nabin Chutia and Ext. 5 is the post mortem report. This report discloses that PW-6 found following injuries on the said dead body :-
“1. One sharp cutting wounds on the left side of the cheek from chin to the angle of mandible size 3″ x 1” bone deep.
2. One sharp cutting in the left side of the neck antere-laterndlly from skin to deep into the cervical vertebra involving the muscles of the neck, all great and small muscles completely cut of trachea and the 3rd cervical vertebra at the site of injury partially cutting of aesophagues size being 3″ x 2″ cervical vertebra”.
6. In the opinion of PW 6, the death was caused due to asphyxia and shock as a result of the haemorrhage from the injuries sustained.
7. From a careful examination of the medical evidence on record, it clearly transpires that the injuries, which, in the opinion of the doctor had led to the death of Nabin Chutia, were caused by some heavy sharp-cutting weapon, such as ‘dao’. In fact, it is not disputed before us that the injuries aforementioned could have been caused by means of ‘dao’ nor is it in dispute that Nabin Chutia died as the result of the injuries aforementioned.
8. We have, therefore, no hesitation in concluding that Nabin Chutia’s death was homicidal in nature.
9. Keeping the above in view, when we come to the evidence of the informant, namely, PW 1, we notice that according to the evidence of this witness, his elder brother, Nabin Chutia, used to live at a distance of about 5 KM from the house of the PW 1, and on 25,9.1994, in the morning, one boy informed him (PW-1) that someone had hacked Nabin and on, receiving this information, PW-1 came to the police station and lodged there the Ejahar, which is marked as Ext-1, and accompanied by police, PW 1 came to the place of occurrence and found Nabin’s dead body lying by the side of sand at Nabin’s farm house with his (Nabin’s) neck having been cut.
10. Though PW 1 has claimed that the inmates of the house told him that Nabin’s ploughman (i.e., the accused-appellant) had killed Nabin, this piece of evidence is nothing but hearsay inasmuch as none has come forward to state that he/she had told the informant (PW 1) that the appellant had killed Nabin. Hence, we keep the hearsay evidence, so given by PW 1, excluded from the purview of our consideration.
11. In the face of clear evidence on record that PW 1 did not know if the accused was present with Nabin Chutia at the time, when Nabin Chutia was killed, the fact that the FIR names the accused-appellant as the person, who was sleeping with the deceased at the said farm house carries no significance.
12. Similarly, on coming to the evidence of PW 2, we notice that even this witness had, admittedly, no personal knowledge as to who had killed Nabin and/or that when Nabin was put to death, the accused was present at the place of occurrence.
13. What is, however, of some importance to note from the evidence of PW 2 is that according to this witness, deceased Nabin and accused Kamal had been keeping watch on the farm house for the past two days, because ‘bats’ used to eat up the “Muga”. Keeping this piece of evidence given by PW 2, when we turn to the evidence PW 3, we notice that according to the evidence of this witness too, Nabin had been keeping watch on his Muga Plantation along with the accused for the past few days before the occurrence.
14. There are altogether, as unfolded at the trial and correctly noted by the learned trial Court, four different circumstances, which appear against the accused-appellant. These circumstances, according to the learned trial Court, make a complete chain of events pointing to the accused-appellant as the person, who had put to death Nabin Chutia. These circumstances may, in brief, be summarized as follows :
Circumstance No. (i) : The FIR lodged on the following day of the occurrence in the morning, i.e., on 25.5.1994, at 7AM, mentioned that on the night of the occurrence, when Nabin Chutia was killed, his ploughman, i.e., the accused-appellant was present with Nabin Chutia
at his farm house.
Circumstance No. (ii) : The evidence of PW 3 shows that on the very night of the occurrence, on hearing the barking of dogs, when he came out with a torch in his hand, he saw a person running away from the farm house of Nabin Chutia and after two minutes, he heard a person raising hue and cry and though he could not recognize the person, who was so seen by him running away, he could recognize that the voice of the person, who had so raised the hue and cry, was that of accused Kamal Bora.
Circumstance No. (iii) : According to the evidence of PW 1 and PW 2, who are the younger and elder brother respectively of the deceased, the accused had elicit relation with the wife of the deceased.
Circumstance No. (iv) : The accused, upon his arrest, made a statement . before the Investigating Officer that the ‘dao’ used by him in the occurrence had been kept concealed by him and he would be able to recover the ‘dao’. In consequences of this statement, the accused led the police to a place near the place of occurrence and took out the ‘dao’ from near a mound and handed over the same to the police. This ‘dao’ was recognized by witnesses as the ‘dao’ which belonged to Nabin Chutia,
Circumstance No. (v) : Nabin Chutia’s dead body was found with his neck cut. The post mortem report reveals that the wounds, which had led to Nabin Chutia’s death, could have been caused by a heavy sharp-cutting weapon and the ‘dao’ aforementioned (M Ext-1), which was recovered by the police, could have caused Nabin Chutia’s death.
15. Now, the question, which arises for consideration is this : How far could the circumstances, pointed out hereinabove, either individually or collectively be said to have furnished convincing proof of the fact that it was none but the accused, who had put Nabin Chutia to death.
16. We have already pointed out above that though the FIR mentions that on the night of the occurrence, when Nabin Chutia was killed, his ploughman, (i.e., the accused-appellant) was also present with Nabin Chutia at the latter’s farm house, there is, in fact, no direct evidence on record showing either that the appellant was present at the farm house
at the time of occurrence or that the appellant had killed Nabin. The entire case of the prosecution rests, admittedly, on circumstantial evidence.
17. Thus, though a combined reading of evidence of PW 2 and PW 3 shows that Nabin Chutia and his ploughman (i.e., accused Kamal) used to keep watch on the farm house, because bats used to cut Muga, what is of paramount importance to note is that is in the evidence of PW 3 himself that on the night of the occurrence, when Nabin Chutia was proceeding towards his farm house, PW 3 was told by Nabin that he (i.e., Nabin) would have to stay alone at the farm house, because accused Kamal had left for enjoying video show. This video show, according to the evidence on record, was, admittedly, held at the local school and though PW 5 has deposed that on the night of the occurrence, he had gone to watch the video show, which had lasted till about 10:00 PM, and that he had not seen Kamal (i.e., the accused-appellant) there, the fact remains that about 200 people had, according to PW 5, gathered to watch the video show and the mere fact that PW 5 had not noticed the accused-appellant at the said video show, it does not necessarily mean that the accused-appellant was not present at the video show nor does it conclusively establish that the appellant was present at the place of occurrence at the time, when the occurrence took place. In other words, since there is no positive assertion or evidence on record to show that the accused had not gone to see the video show and/or that the accused was not present at the place of video show and/ or that the accused was present at the place of occurrence at the time, when the occurrence took place, it cannot be confidently held that the accused-appellant was present at the place of occurrence, when the occurrence took place.
18. Coupled with the above, it is also of immense importance to note that it is in the evidence of PW 3 that on the night of the occurrence, he woke up on hearing the dogs barking, he came out with a torch and when he flashed the torch towards the direction of Nabin Chutia’s ‘Somani’ (i.e., the farm house for ‘Muga’ plantation) he saw a man running from the direction of the Somani towards Nabin’s dwelling house arid he, then, heard a man raising hue and cry and recognized the voice of the person, who had so raised hue and cry, as that of accused Kamal.
19. When the above evidence given by PW 3 is considered in the light of the evidence of PW 3 himself that on the night of the occurrence, he (PW 3) had been told by Nabin himself that he would be keeping watch on his ‘Somani’ alone as Kamal (i.e., the accused-appellant) would be going to the video show and when there is no positive evidence on record to show that at the time when Nabin Chutia was put to death, the accused was present at the said farm house, the possibility that accused returned to the place of occurrence after the video show and found the dead body of Nabin Chutia lying there and on witnessing the same, the accused went running to the house of Nabin Chutia arid raised hue and cry there cannot be boldly and completely ruled out.
20. Situated thus, it is, in the other words, well-high impossible to confidently hold that the accused was present at the place of occurrence, when the occurrence took place,
21. With regard to the allegation of the accused having illicit relationship with the wife of the deceased, suffice it to mention here that though PWs 1 and 2 have deposed that the accused had illicit relationship with the wife of the deceased, none of the two witnesses have asserted that they had personal knowledge of such illicit relationship existing between the accused and the wife of the deceased ; more so, when PWs 1 and 2 used to live in the houses different from the one in which Nabin Chutia lived. Thus, the evidence of illicit relationship so given by PWs 1 and 2 is nothing but hearsay and the learned trial court ought to have kept the evidence regarding alleged illicit relationship excluded from the purview of its consideration.
22. So far as the evidence leading to the alleged discovery of dao is concerned, it is worth noticing that no statement, reduced into writing, and leading to such discovery, was proved by the investigating officer. In the absence of any contemporaneous record showing that any such statement, as alleged by the investigating officer, was made by the accused-appellant, we find it wholly unsafe to place reliance on the mere oral testimony of the investigating officer regarding the alleged statement of the accused-appellant leading to the alleged discovery of the ‘dao’. This apart, the alleged production of ‘dao’ by the accused-appellant can, at the most, lead to the inference that the accused knew where the ‘dao’ was kept concealed, but this fact alone, in the absence of any other incriminating evidence on record, cannot lead one to the lone and only conclusion that it was none but the accused-appellant, who had killed Nabin Chutia. The fact that the wounds found on the dead body of the deceased could have been caused by the said dao (M. Ext. 1) does not improve the case of the prosecution in establishing that it was the accused, who had killed Nabin Chutia.
23. It is well settled that for basing conviction on circumstantial evidence, the Court must fell convinced that the chain of various circumstances leading to the conclusion of the guilt of accused is complete and that these circumstances are not only consistent with the guilt of the accused but are also inconsistent with his innocence.
24. A cool and dispassionate scrutiny of the evidence on record does not, as already indicated hereinabove, prove beyond all reasonable doubt that it was none but the accused-appellant, who had put Nabin Chutia to death.
25. Situated thus, we are of the firm view that in the facts and circumstances of the case at hand , the accused-appellant deserved to be given the benefit of doubt.
26. In the result and for the reason discussed above, this appeal succeeds. The impugned judgment and order convicting the accused-appellant and sentencing him to imprisonment and fine, as hereinbefore described, shall stand set aside. The accused-appellant is held not guilty of the charge framed against him and he is acquitted of the same under benefit of doubt.
27. Let the accused be set at liberty forthwith unless he is required to be detained in connection with any other case.
28. Let the Superintendent of the District Jail, Lakhimpur, Sessions Judge, North Lakhimpur and Chief Judicial Magistrate, North Lakhimpur, be informed accordingly.
29. Send down the L.C.Rs.