Crl.A. 12/2009 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE C. R. SARMA JUDGMENT & ORDER (Ranjan Gogoi, J.) This appeal is directed against the judgment and order dated 3.12.2008 p assed by the learned Additional Sessions Judge (FTC), Kamrup, Guwahati in Sessio ns Case No.272(K) 2006 by which the accused/appellant have been convicted of the offence under Section 302/34 IPC. They have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/- each. 2. The short case of the prosecution is that PW 4, Smti. Anju Kalita Nath, lodged a F.I.R. in the Noonmati Police Station on 15.11.2005 at about 9.45 P.M. stating that her husband, one Bubul Nath was killed by some unknown persons in t he previous night i.e. on 14.11.2005. According to the first informant, her husb and has been living by himself in a rented house belonging to one Jiban Sarma of Noonmati (Anandanagar). In the F.I.R. filed it was mentioned that the accused/a ppellants had been in the house of the husband of the first informant till late hours of the night of the occurrence and had left him in an injured state. 3. On the basis of the aforesaid F.I.R. Noonmati P.S. Case No.274/2005 unde r Section 302/34, IPC was registered. PWs 11 and 12, who are police officers, ha d conducted the investigation of the case in the course of which PW 11, who was posted in the Noonmati Police Station on the date of occurrence, had made an ent ry in the General Diary of the Police Station (G.D.Entry No.666 dated 15.11.2005 ) on receipt of information of the incident at about 9.00 A.M. in the morning. T hereafter, PW 11 along with a police party visited the place of occurrence, held inquest on the dead body which was sent for post mortem examination. Apart from making seizure of a blanket which was found on the dead body, one gamocha, two numbers of door curtains containing blood stains, 3 numbers of wine bottles and one mobile phone belonging to the deceased, the Investigating Officer also recor ded the statements of several persons acquainted with the occurrence. In the cou rse of the investigation on the next day i.e. 16.11.2005, one knife is alleged t o have been seized from the place of occurrence at the instance of the accused/a ppellant Sewali Das Sarma while the aforesaid accused/appellant was in custody. The aforesaid seizure was made by seizure list (Ext-7). Thereafter at the conclu sion of investigation charge-sheet under Section 302/34, IPC was filed against t he two accused/appellants. The offence alleged being exclusively triable by the Court of Sessions the learned Chief Judicial Magistrate, Kamrup, Guwahati by ord er dated 15.9.2006 committed the case for trial to the Court of Sessions at Guwa hati. 4. In the trial Court charge under Section 302/34, IPC was framed against t he accused/appellants. The same being read over and explained to the accused the y pleaded not guilty and wanted to be tried. In the course of trial 12 witnesses were examined by the prosecution. The prosecution also exhibited certain docume nts including the seizure lists, inquest report, post mortem report as well as t he F.S.L. reports. The defence did not adduce any evidence. However, the stateme nts of both the accused/appellants were recorded under Section 313, Cr.P.C. The reafter, at the conclusion of the trial the accused/appellants have been convict ed and sentenced as aforesaid. 5. It will be necessary at this stage to briefly notice the core of the evi dence tendered by the prosecution witnesses in the present case. 6. PWs 1,2 and 6 having stated that they did not know the circumstances sur rounding the death of the deceased the evidence of the aforesaid three witnesses will not be very material. 7. PW 3, Gautam Nath, is the son of the deceased who was at the relevant po int of time studying in Class-VIII of the Sainik School at Goalpara. According t o PW 3, around 3.00 O’clock in the afternoon of 13.11.2005, his mother (PW 4), g randfather and maternal aunt had come to the hostel of the school to see him as the said day happened to be his birthday. Around 7.30 P.M. of the same day his f ather (deceased), the two accused persons and one Tamer (driver) had also come t o the school to see him. According to PW 3, his father had introduced the two ac cused persons to him and had told him not to inform anybody about the visit. On 15.11.2005 the Headmaster of the School informed him of his father’s death where after he came home. According to PW 3, his uncle, Balen Kalita, informed him tha t a man and a woman whose names were not revealed had killed his father. 8. PW 4, Smti. Anju Kalita Nath, is the wife of the deceased. According to PW 4, her husband i.e. the deceased used to live alone in a rented house. PW 4 h ad deposed that on 13.11.2005 she had met her husband in her own quarter at Mali gaon. On that day she had asked her husband to go to Goalpara as the said day wa s the birthday of their son. However, according to PW 4, her husband informed he r that he would not be able to go to Goalpara on account of some work and had as ked her to go to Goalpara. Thereafter, PW 4 along with her father, sister and tw o neighbours had gone to the hostel of her son at Goalpara and returned home in the evening. According to PW 4, at about 10.30 P.M. when she had telephoned her son she was informed that the deceased along with one Sharma uncle had come to meet him. PW 4 had further deposed that she did not met her husband on 14.11.20 05 and around 10.00 A.M. of the next day i.e. 15.11.2005 she was informed by the police personnel of Maligaon Police Station that her husband had met with an ac cident at Noonmati. According to PW 4, she along with her brother and some other persons went to Noonmati but she could not meet her husband and therefore retur ned home. Around 7.00 P.M. the deadbody of her husband was brought home. PW 4 ha d deposed that later she could come to know that her husband had taken on rent a flat belonging to one Jiban Sarma and that he had died there. PW 4 had further deposed that on enquiry she could come to know that on 14.11.2005 her husband celebrated the birthday of their son in flat and he had i nvited the two accused persons. Accordingly, suspecting the involvement of the t wo accused persons, the ejahar (Ext-1) was filed. In her deposition PW 4 had spe cifically stated that her husband used to talk with some girls and that they had quarrels over the said matter. PW 4 had also deposed that in the mobile phone o f her husband the photograph of the accused Sewali Das Sarma, was kept by her hu sband. 9. PW 5, Md. Amir Hussain, is the person who took the deceased and the two accused/appellants to Goalpara in a taxi bearing No.AS-01W-9225. According to PW 5, after reaching Goalpara they went to the hostel of the Sainik School and aft er staying there for about 40 minutes they came back to Guwahati. On reaching Gu wahati PW 5 had dropped all the persons at their respective places. 10. PW 7, Sri Ananta Ram Baishya, who was working as a Sr. Scientific Office r in the Forensic Science Laboratory, Guwahati, at the relevant point of time, h ad deposed that on 16.11.2005 he had received a sealed parcel sent to the Direct or of the Laboratory by the learned Chief Judicial Magistrate, Kamrup, Guwahati in connection with Noonmati P.S. GDE No.666 dated 15.11.2005. He had deposed t hat on opening the parcel he found seven specimens which were analysed by him an d the result of the analysis was negative for common poison. He had proved his r eport as Ext-3 and his signature therein is Ext-3(1). The samples analysed by hi m and result thereof, as deposed by PW 7, is as follows : 1. One plastic jar containing - stomach with its contents marked here as Ex t.No. Tox-658(a 2. One plastic jar containing i. portion of lung. ii. Brain iii. Liver with gall bladder iv. One kidney marked here as Ext.Tox658(b), 658(c), Tox 658(d) Tox 658(e) r espectively. 3. One plastic jar containing 5 ml blood in sodium floride marked as Ext. T ox 658(f). 4. One plastic vial containing 4 ml blood in EDTA - marked here as Ext.Tox 658(g). 5. One plastic bottle containing sample of preservative s.s. of common salt marked as Ext.Tox 658(h). On careful examination of the Exts. I found the following result : The Ext. Tox 658(a), Tox 658(b), 658(c), Tox 658(d) Tox 658(e), Tox 658( f), Tox 658(g) gave negative test for common poison. 11. PW 8, Sri Tanuram Nath, is the father of the deceased. His deposition wo uld be relevant only to the extent that according to PW 8 when he had seen his s on in the cremation ground at Bhutnath he had seen a chest injury suffered by hi s son. 12. PW 9, Balen Baishya, is a friend of the deceased. According to PW 9, the deceased was staying alone in a rented house situated near the FCI at Noonmati. PW 9 had deposed that in the morning of the day of occurrence (15.11.2005) both the accused had telephoned him saying that something had happened to the deceas ed. They had called him immediately. PW 9 had deposed that he came and met the a ccused on the main road and while proceeding to the rented house of the deceased he was informed by the accused persons that on the previous night the deceased, on receipt of a phone call, had injured himself on the chest with a knife. Ther eafter, according to PW 9, at the gate of the house they had met the landlord (P W 10) and requested him to accompany them to the rented house of the deceased. P W 9 had further deposed that all of them went inside the rented house of the dec eased and found him lying on the floor of his bedroom. They then came out, discu ssed the matter and decided to inform the police. According to PW 9, the police personnel came to the place of occurrence along with him and the landlord while both the accused persons were detained in the police station. On going to the pl ace of occurrence, once again, they found the deceased lying dead on the floor. In cross-examination PW 9 had specifically stated that at the time when the dece ased was looking for rented accommodation he had stated to PW 9 that he wanted t o stay alone. According to this witness no member of the family of the deceased had visited the rented house of the deceased. PW 9, in cross-examination, had al so deposed that police found two knives in the kitchen of the house of the decea sed and that he did not notice any knife near the dead body. 13. PW 10, Jiban Chandra Sarma, is the owner of the house/flat which was tak en on rent by the deceased. According to this witness, on 15.11.2005 at about 8. 00 A.M. when he was going out to drop his son in school, at the gate of his hous e he found PW 9 and the accused persons. The accused/appellant Sewali Das Sarma asked him about the whereabouts of the deceased to which he replied that the dec eased was present in the house/flat in the previous night but he could not say w hether he was there at the moment. According to PW 10, thereafter all of them pr oceeded to the flat of the deceased but before reaching the place the accused/ap pellant Harnarayan Sarma told PW 10 that in the previous night an incident took place in the flat and that the deceased had stabbed himself with a knife. Accord ing to PW 10 he had asked the accused/appellants why he was not informed about the incident earlier. However, according to PW 10, they proceeded to the house o f the tenant (deceased) and found the deceased was lying on the ground with face upwards and a blanket over his body. Thereafter, according to PW 10, he came ba ck, dropped his son to school and after coming home he found two of his neighbou rs i.e. one Siben Sarma and one B. Borpujary to whom he narrated the incident. PW 10 had further deposed that along with the accused/appellants and PW 9 he wen t to Noonmati Police Station and reported the incident. Immediately thereafter p olice came to the house but the accused/appellants were detained in the police s tation. Thereafter they found the deceased lying dead. The investigation of the case, according to PW 10, started thereafter. 14. While PW 11 is the police officer who filed the charge-sheet after takin g over the investigation from PW 12, PW 12 had given a vivid description of the different steps taken in the course of investigation of the case. Of particular significance would be the evidence of PW 12 to the effect that he had seized a k nife from the place of occurrence at the instance of accused Sewali Das Sarma vi de seizure-list (Ext-7). In cross-examination this witness i.e. PW 12 had clari fied that though in Ext-7 it was stated that the knife was recovered/seized on 1 5.11.2005 it was actually recovered on 16.11.2005. 15. A close reading of the evidence of the witnesses examined by the prosecu tion would go to show that there are no eye-witnesses to the occurrence and the case of the prosecution rests entirely on circumstantial evidence. To determine the correctness of the conviction of the accused/ appellants it will, therefore, be the duty of the Court to cull out the circumstances which the prosecution ha d succeeded in establishing on the basis of the evidence and materials on record . Thereafter, it has to be found out whether the proved circumstances give rise to a complete chain of events which unerringly point to only one direction, name ly, that it is the accused/appellants and nobody else who could have committed t he crime. Only in that event the conviction of the accused/appellants as made by the learned trial Court can be sustained. 16. The visit of the accused/appellants along with the deceased to the Saini k School at Goalpara on 13.11.2005 as well as the photograph of the accused Sewa li Das Sarma on the mobile phone of the deceased cannot, in any way, connect th e accused/appellants with the crime. However, the presence of the accused/appell ants in the house/flat of the deceased till late hours of the night of 14.11.200 5 (night of occurrence) would, certainly, be an incriminating circumstance. Admi ttedly, nobody saw the deceased alive, thereafter. It would, therefore, be incum bent on the accused/appellants to offer an explanation as to their whereabouts a nd conduct immediately thereafter if they are to avoid any liability for the dea th of the deceased which fact came to be noticed in the morning of the next day. In this regard, the accused/appellants in their statements to PWs 9 and 10 as w ell as in their statement recorded under Section 313, Cr.P.C. had stated that wh ile they were with the deceased in the flat the deceased received a phone call w hereafter he stabbed himself on the chest with a knife. However, the accused/ap pellants did not inform anybody of the incident immediately thereafter and, inst ead, waited till the morning when they first telephoned PW 9 and informed him ab out the said incident which was also reported to PW 10 soon thereafter. Accordin g to the accused/appellants when the incident had occurred they got nervous and left the place of occurrence after covering the deceased with a blanket. The que stion that confronts the Court is whether the aforesaid circumstances, namely, t hat the accused/appellants and the deceased were last seen in the company of eac h other and that they had not informed anybody of the incident which according t o the accused took place in the night of 14.11.2005 would permit an irreversible conclusion that it is the accused/appellants who are responsible for the death of the deceased. 17. The accused/appellants and the deceased being in the company of each oth er immediately before the occurrence, by itself, cannot lead to a conclusion tha t it is the accused/ appellants who had killed the deceased. Some more positive evidence must be forthcoming to enable the Court to reach the conclusion that th e prosecution would like to be reached. The conduct of the accused in not report ing the incident that had occurred, as claimed by them, by itself, again, cannot lead to the conclusion that the version offered by the accused/appellants i.e. that the deceased stabbed himself in the chest is false and that it is the accus ed/appellants who are responsible for the death of the deceased. Assuming what i s claimed by the accused/appellants to have actually taken place as correct leav ing the place of occurrence without informing anybody either on account of fear or to avoid the resultant complications is a possible course of conduct of a hum an. Having second thoughts in the matter and deciding to reveal the incident in the following morning is equally possible. Both the possibilities cannot be excl uded by the Court to be outside the realm of normal human conduct and behaviour. The conduct of the accused therefore cannot give rise to the single hypothesis i.e. that the accused had committed the crime which will be necessary to hold th em liable. The information conveyed by the accused to PWs 9 and 10 in the next m orning is a relevant fact that has to be carefully weighed and balanced with the conduct of the accused/appellants of the previous evening/night in not informin g the incident. The totality of the circumstances that have been proved and esta blished in the present case by the evidence on record, namely, that the accused/ appellants and the deceased were together in the night of the occurrence; that t he accused/appellants did not inform anybody that the deceased had stabbed himse lf but had informed the said incident only in the next morning, properly evaluat ed and balanced, in our considered view, cannot lead to the only conclusion that will be necessary to be reached to sustain the conviction of the accused/appell ants, namely, that it is the accused/appellants who had committed the crime. The conduct of the accused/appellants in not informing the incident, as claimed by them, is certainly a suspicious circumstance but the Court cannot allow suspicio n take the place of proof. We, therefore, deem it appropriate to take the view t hat the circumstances proved and established against the accused/appellants do n ot permit as to reach the necessary conclusion beyond all reasonable doubt. 18. The prosecution in the present case did not prove the post mortem report though a post mortem was performed on the deceased. The inquest report which ha s been exhibited as Ext-5 shows the presence of two wounds in the chest of the d eceased apart from an abrasion on the upper part of the chest. In the absence of the post mortem report indicating the opinion of the doctor with regard to caus e of death or any other evidence to clearly establish the cause of death of the deceased it is difficult for the Court to come to any firm conclusion that even if the injuries on the chest of the deceased are hypothetically ascribed to the accused/appellants, the accused/appellants can be held to be responsible for the death of the deceased. 19. The learned Public Prosecutor has vehemently contended that recovery of the knife at the instance of the accused Sewali Das Sarma and seized by Ext-7 is a conclusive circumstance to establish the guilt of the accused/appellants. We do not agree with the learned Public Prosecutor. The knife seized by seizure-lis t (Ext-7) was from the place of occurrence. In any place of human dwelling a kni fe in the kitchen can be found. That the particular knife seized by Ext-7 was th e offending weapon could have been proved by means of a forensic examination of the knife to find out the traces of human blood or the fingerprints of the accus ed thereon. The investigation did not proceed in that line and it would be fanci ful and imaginative on our part to accept the submission of the learned Public P rosecutor that the blood stains or fingerprints on the knife seized must have be en removed by the accused/appellants by cleaning the same. 20. For all the aforesaid reasons we have arrived at the conclusion that the circumstances proved by the prosecution against the accused/appellants, though highly suspicious, do not establish the case against the accused/appellants beyo nd all reasonable doubt. The benefit of our doubt in the matter must, naturally, go in favour of the accused/appellants. We, therefore, allow the appeal, set as ide the judgment and order dated 03.12.2008 passed in Sessions Case No.272(K)/20 06 and acquit the accused/appellants on the benefit of doubt. The accused/appell ants, who are in custody be released forthwith.