Crl.A. 182/2007 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY AND THE HON’BLE MR. JUSTICE H. BARUAH Being dissatisfied with and aggrieved by their conviction and sentence recorded in the judgment and order dated 23.08.2007 passed by the Addl. Sessions Judge ( FTC) No.4 Kamrup, Guwahati rendered in Sessions Case No.248 (K)/2006, the appell ants are in appeal for redress. 01. We have heard Mr. D.K. Das, Senior Advocate assisted by Ms. M. B oro, Advocate for the accused-appellants and Mr. K.A. Mazumdar, learned Public P rosecutor, Assam. 02. The prosecution case opens with the FIR dated 07.09.2009, lodged by Smt. Jatila Kalita with the Officer-in-Charge, Hajo Police Station (Kamrup) complaining that on 06.09.2003 her husband Ganesh Kalita (since deceased) alongw ith the accused-appellants had arranged a feast for the night and that according ly at about 9 P.M. the accused-appellants No.2 and 3 called him away from home i n connection therewith. The informant alleged that the accused-appellants then killed her husband and left his dead body near Abhayapur Kali Mandir. The pol ice registered a case on the said FIR and at the end of the investigation, laid a charge-sheet against the accused-appellants U/s.302/34 of the Indian Penal Cod e (hereinafter for short referred to as the Code). 03. The case was committed to the court of learned Addl. Sessions Ju dge (FTC) No.4, Kamrup, Guwahati for trial. Charge was framed against the accuse d-appellants under the aforementioned provision of the Code. They denied the sam e and claimed to be tried. The prosecution then examined 9 witnesses, which i ncluded the two investigating officers in succession, the doctor who performed t he post-mortem examination on the dead body, as well as the Scientific Officer o f the Forensic Science Laboratory, Kahilipara, Guwahati. The statements of the accused-appellants were recorded U/s.313 Cr.P.C. They also adduced defence evid ence by examining one witness. At the conclusion of the trial, the learned cour t below by the impugned judgment and order convicted the accused-appellants for the offence charged and sentenced them to suffer imprisonment for life and also to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for ano ther 6(Six) months. 04. Mr. Das has argued that not only the prosecution case suffers fr om inherent improbabilities, vis-à-vis the accused-appellants, in absence of any eyewitness to the incident, the charge by no means against them can be said to have been proved. Referring to the post-mortem report, the learned Senior Couns el has argued that having regard to the possible time of the death, even assumin g that the testimony of PW-1 is accepted on its face value, due to the appreciab le time lag between the departure of the deceased with the accused-appellants fo r the feast and the time of death as referred to in the post-mortem examination, the principle of last seen together is inapplicable. Mr. Das, has therefore, argued that there being no conceivable nexus between the accused-appellants and the cause of the death of the deceased, they ought to be exonerated of the char ge. This, he submits is also in view of the admitted absence of previous animos ity between the deceased and the accused-appellants. In this regard the learned Senior Counsel has referred to Section 53 of the Indian Evidence Act, 1872, whi ch makes the character of the accused-appellants relevant in a criminal proceedi ng. According to him, having regard to the place where the dead body was found, the investigation ought to have been focused to collect materials by way of evi dence from its vicinity. He has also dismissed the evidence of PW-2 to PW-5 wit h regard to the purported extra-judicial confession made by the accused-appellan ts contending the same is wholly inadmissible, as the same was made in the prese nce of the investigating officer. To reinforce his arguments, Mr. Das has place d reliance on the decisions of the Apex Court in AIR 1954 SC 51 (Vol. 41, C. N. 18) (Habeeb Mohammad v. State of Hyderabad) and (2007) 3 SCC 755(STATE OF GOA Ve rsus SANJAY THAKRAN AND ANOTHER). 05. In reply, Mr. Mazumdar has argued that it being apparent from th e evidence of PW-1 that the deceased, as well as the accused-appellants had gone out together after 9 P.M. in the night on the date of occurrence, whereafter hi s (deceased’s) whereabouts was not known till his body was recovered in the morn ing, it is more than apparent that they (accused-appellants) had been the perpet rators of the crime and that therefore, their conviction and sentence is valid. According to him, the demeanour of the accused-appellant No.1 when approached b y the PW-1, the wife of the deceased in the night of the incident to enquire a bout the whereabouts of her husband is a certain indicator of his complicity in the offence. He has further stated that the findings of the FSL report, as well as the post-mortem report amply support the prosecution case, as it is evident therefrom that the deceased had succumbed to multiple injuries caused by blunt o bject. According to him, as the injuries could have been caused only due to a j oint attack by the accused-appellants on a cumulative consideration of all relev ant materials, the impugned judgment and order is valid and does not merit any i nterference of this Court. The evidence adduced by the parties, in short, will have to be noticed. 06. PW-1 Smt. Jatila Kalita, the wife of the deceased stated that t he incident had occurred at about 9 P.M. on 06.09.2003. According to her, in th e evening, all the three accused-appellants accompanied the deceased to his home and had later invited them to partake in a feast. After the deceased had accomp anied the accused-appellants, responding to their invitation, he did not return till late at night. Out of anxiety, she then went to the house of the accused- appellant No.1 Madhab Kalita, which was located nearby, but as she could not met him she returned home. The witness stated that she visited the house of Madhab Kalita again only to be told by him that she would come to know of her husband next morning. According to this witness, in the morning she went out in search of her husband and found him (the deceased) lying dead in a naked state near the Kali Mandir. She proved FIR, Ext-1 with her signature thereon Ext-1(1). This witness, however stated that at the place of occurrence she had noticed the pres ence of accused-appellant No.1, Madhab Kalita. In cross-examination, the defenc e sought to elicit from this witness a subsisting strained relationship between him and his brothers over a dispute in connection with property. She further st ated that Kali Mandir was located about a mile away from her house and that the place was lighted. She denied the suggestion of having falsely testified agains t the accused-appellants. She also denied the suggestion that her brother-in-la ws were the real culprits. She admitted that prior to the incident, the relatio nship between her husband and the accused-appellants was cordial. 07. PW-2 Sri Prabin Chandra Kalita, PW-3 Sri Amrit Chandra Deka, PW- 4 Sri Surjya Kanta Baishya and PW-5 Sri Aghanu Kalita, in essence have only stat ed about the location of the dead body of the deceased, husband of PW-1 near the Kali Mandir. They, however stated about the investigating officer interrogatin g the accused-appellants who admitted about consumption of country liquor in the house of the deceased in the evening of 06.09.2003 and assault on him by them, resulting in his death in front of Abhayapur Kali Mandir. 08. PW-6 Sri Samudra Baishya, Scientific Officer in the Forensic Sci ence Laboratory, Kahilipara, Guwahati, in substance stated that the forensic exa mination of the blood sample of the deceased, gave positive test for ethyl alco hol. 09. PW-7 Dr. Hemanta Kr. Mahanta stated to have found the following injuries on the dead body- Injuries: 1) Abrasion 2 x 1 cm on left forehead, 3 cm from the midline. 2) Contusion of the middle part of the nose, eyelids of both eyes (black ey e) present 12 x 4 cm. The nasal bones fractured. 3) Contusion - 6 x 4 cm of the right side of face molar places. 4) Lacerated wound in the inner side of lower lip 1 x 0.5 cm and 1.5 x 0.5 cm middle part. 5) Lacerated wound 1 x 0.5 x 0.5 cm on chin. 1.5 cm below the left margin ( horizontal). 6) Lacerated wound - 1.5 x 0.5 x 0.5 cm on the inner side of the upper lip. 7) Contusion 3 x 3 cm on left side of chest on 8th, 9th ribs, 16 cm from th e midline. He opined that the injuries were antemortem and caused by blunt force impact and were homicidal in nature. He proved the report as Ext-3 with his signature the reon Ext-3 (1). The post-mortem report reveals, inter alia that the autopsy was conducted at 2.45 PM on 07.09.2003 and disclosed the probable time of death to b e 12-18 hours prior thereto. 10. PW-8 and PW-9 Sri R.P. Singh and Sri Tarun Kalita are the police officers who had conducted the investigation in parts. PW-8, in particular, pr oved the charge-sheet, Ext-4. PW-9 in his evidence stated that he whereas had a rrested accused-appellants No.1 and 3, whereas the accused-appellant No.2 surren dered in the court. He testified to have interrogated them in presence of PW-2, PW-3, PW-4 and PW-5. 11. On a plain analysis of the evidence on record, it would be appar ent that there is no eyewitness to the incident. The evidence of PW-2, PW-3, PW -4 and PW-5 is also of no relevance and/or significance, vis-à-vis the involveme nt of the accused-appellants in the offence. The so-called extra-judicial confe ssion made by the accused-appellants herein, to the investigating officer is cle arly inadmissible in law and thus cannot be acted upon. The evidence of PW-1 wh en considered alongwith FIR, Ext-1 lays the preface to the ultimate end of the d eceased. From the evidence of this witness, it can be gathered that the accused -appellants and the deceased had enjoyed drinks in his (deceased’s) house in the evening on the date of the occurrence. Thereafter, the accused-appellants invi ted him (deceased) for a feast and he obliged them. His dead body was found ne xt morning near the Abhayapur Kali Mandir located about one mile away from his h ouse. From the approximate time of his death as is revealed by the post-mortem report, it must have occurred between 8 P.M. of 06.09.2003 and 2.45 A.M. of 07.0 9.2003. Though, from the evidence of PW-1 it is apparent that at least for some time after 8 P.M. of 06.09.2003 the deceased was in the company of the accused-a ppellants having regard to the time lag therefrom and the detection of his dead body, it is difficult to conclusively hold that the principle of last seen toge ther can be drawn in the facts of the instant case. The evidence of PW-1 to th e effect that she having gone to enquire about her husband, the accused-appellan t No.1 had brusquely asked her to wait till the next morning to be aware of the same though according to us, is an unusual conduct of a friend who had spent the same evening with the deceased, it per se, according to our estimation is insuf ficient having regard to the rigour of the standard of proof required in a crimi nal proceeding to nail him to the charge. The involvement of the other accused- appellants, in clear terms, is also not discernible, except that they had also a ccompanied the deceased alongwith the accused-appellant No.1 for the feast in th e fateful evening. The detection of alcohol in the blood of the deceased only l ends support to the evidence of PW-1 to the effect that he along with the accuse d-appellants had drinks that evening. Though, the injuries detected on the dead body clearly suggest of violent manhandling of the deceased by fists and blows o r may be by other blunt weapons, which did not result in any bleeding injury but spelt death for him, the facts and circumstances are not enough to unerringly e stablish the complicity of the accused-appellants in the offence. In the above view of the matter, we are constrained to hold that the accused-appellants, in t he above backdrop of the materials on record are entitled to the benefit of doub t. The impugned judgment and order, in this premise, is therefore interfered with. 12. Before we part, we wish to record our deep anguish and distress at the manner in which the investigation in the case has been conducted. The pr esent appeal has left us with the feeling that the investigating officers in the instant case are either ignorant of the basics of law and procedure pertaining to the investigation of a criminal offence or have deliberately omitted to take the very essential steps to unearth the culprits. It passes our comprehension i nter alia, as to how, if, in fact, the accused-appellants had admitted their inv olvement in the offence before the investigating officers, no step was taken by them to have their confessions recorded in accordance with law in a case where n o eyewitness was available. We notice as well that the inquest report has not been proved. This is a vital document, which reflects the state of a dead body at the earliest point of time on its detection and most of the time throw a lea ding light to the ultimate conclusions, vis-à-vis the offence committed. We have no hesitation to record that the benefit of doubt to the accused-appellants has been due to such botched up and faulty investigation which has done a great dis service to the society besides causing hindrance to the cause of administration of justice. We convincingly assert that the authorities of the department should pay attention to this indispensable fundamentals of good investigation if at al l it is desired to be of any required utility in bringing the real offenders to the fore. 13. A copy of this judgment and order would be forwarded to the Dire ctor General of Police, as well as the Inspector General of Police (Prosecution) , Assam for their acquaintance with the ongoing state-of-affairs in their depart ment, as well as level of the efficiency and competence being displayed by their officers. We would, further insist upon a report being submitted with the Regi stry of this Court about the steps taken in this regard within two months from t he date of receipt of this order. 14. Notwithstanding the above, as we hold that the charge against th e accused-appellants has remained unproved in accordance with law and that we ha ve extended the benefit of doubt to them, the appeal is allowed. The accused-app ellants, as a result, would be set at liberty forthwith.