Crl.A. 160/2004 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B.LOKUR HON’BLE MR JUSTICE A. K. GOSWAMI (MADAN B. LOKUR, CJ) This appeal is by six appellants, including Ajit Boruah (in jail) and Ra jib Boruah (on bail). The other four appellants are Ranjit Boruah (son of Ajit B oruah), Satyajit Boruah, Rajib Bora and Lelai HatiBoruah. Insofar as the last fo ur appellants are concerned they have been found by us to be juveniles on the da te of commission of the offence. By an order dated 23-2-2011 we had required the ir cases to be taken up by the Juvenile Justice Board. We had retained the case records for hearing the appeal of the remaining two appellants but after having heard learned counsel for the parties we are of the opinion that all the appella nts before us ought to be acquitted of the offence. For this reason, we are now of the view that there is no occasion for requiring the cases of the four juveni le appellants to be taken up by the Juvenile Justice Board. 2. On 18-5-2001 a First Information Report (FIR) was lodged to the effect t hat Ajit Boruah, Rajib Bora, Lelai HatiBoruah, Rajib Boruah @ Moniram Boruah, Sa tyajit Boruah and Ranjit Boruah had intercepted Siben Hazarika while he was retu rning home from work at about 7.00 pm. Then, in front of the residence of Indres war Bhuyan, they caused his death by assaulting him with sharp weapons. It was a lso alleged that after having committed the crime Lelai HatiBoruah threatened to kill the informant Bubul Hazarika, the elder brother of Siben Hazarika. On the basis of the FIR, the police conducted investigations and filed a charge-sheet a lleging the commission of an offence under Sections 147/148/ 149/302 of the IPC. 3. The committal Magistrate noted that the case was exclusively triable by the Court of Sessions and accordingly committed the case to the Court of Session s with all documents and materials. On 20-6-2003 the appellants were charged wit h having a common intention of committing the murder of Siben Hazarika and there by an offence punishable under Section 302 read with Section 34 of the IPC was f ramed. The charge was read over and explained to the accused persons and they pl eaded not guilty and claimed trial. 4. Indreswar Bhuyan, in front of whose house the incident is alleged to hav e taken place, entered the witness box as PW-7. According to him he was at home when he heard a hue and cry in the field near the road and on reaching there (at about 7.30 pm) he found the dead body of Siben Hazarika. He also found Siben’s family members crying and weeping. On enquiry about the incident he did not get any reply. The evidence of PW-7 Indreswar Bhuyan does not lead us anywhere at al l. 5. Similarly, the evidence of PW-1 Prafulla Boruah does not advance the cas e of the prosecution. Rather it casts some doubt on whether he actually went to the place of occurence because according to this witness he was told by his brot her (who was not examined) at about 7.15 pm that Siben Hazarika was lying dead. This witness went to the place of occurrence but did not meet any one over there and later he was told that the appellants had caused the murder of Siben Hazari ka. This witness had signed the inquest report but other than that his evidence is of no specific value. 6. PW-5 Dhaneswar Boruah neither knew anything about the incident nor did h e recognise any of the appellants except Dilip Boruah. Similarly, PW-8 Rebakanta Borkotoky also did not advance the case of the prosecution in any manner. 7. The testimony of PW-2 Bubul Hazarika is of some relevance inasmuch as he was the informant. He was not an eye witness to the crime and had reached the p lace of occurence only after the murder had been committed. He too had participa ted in the inquest. The relevance of his evidence is with regard to the recovery of a blood stained axe said to have been used in the murder of Siben. According to this witness, Ranjit Boruah (son of Ajit Boruah) had retrieved the axe from Rajib Bora’s house and produced it before the police. 8. In his cross examination PW-2 Bubul Hazarika says that every household i n his village has an axe like the one retrieved from the house of Rajib Bora. Mo re importantly he says that Ranjit Boruah was taken in handcuffs by the police w hen the recovery of the axe was made. He also says that Ranjit Boruah was physic ally assaulted and the police had actually preceded Ranjit Boruah to the place o f recovery. On the basis of this testimony absolutely no reliance can be placed on the recovery of the axe said to be the weapon of the offence. As regards the axe being blood stained, there is nothing to indicate whether the axe was subjec ted to any forensic examination. 9. The recovery of the axe is also adverted to by PW-6 Bup Hazarika, the Ga on Bura of the village. He too was not an eye witness to the incident but he hea rd some hue and cry on the road from the side of Indreswar Bhuyan’s house and he went there and found the body of Siben Hazarika. He learnt from the public who gathered there that the appellants had killed Siben. He goes on to say that the next day Ranjit Boruah led the police to the house of Rajib Bora from where the axe was recovered and according to Ranjit that was the axe used in the commissio n of the offence. This witness also admits that every household family has an ax e like the one that was produced by Ranjit Boruah but what is of equal importanc e is that Ranjit Boruah had told the police that his father Ajit Boruah had hidd en the axe over there. The remaining evidence of this witness is of no particula r importance since he was not an eye witness to the crime. 10. The recovery of the axe also forms a part of the testimony of PW-9 Dilip Boruah. He says that at about 7.30 pm on the fateful day he heard some hue and cry and he came out of the house and found the dead body of Siben Hazarika. The next day the police brought Ranjit Boruah to Rajib Bora’s house from where an ax e was produced. According to him Rajib Bora’s mother informed the police that Aj it Boruah had kept the axe at that place in the morning. 11. The entire story of the recovery of the axe seems to us to be full of do ubts. It is not at all clear why it was kept at Rajib Bora’s house and not in an y other place. It is also not at all clear why Rajib Bora’s mother should allow Ajit Boruah to keep a blood stained axe in her house. All this seems a bit unnat ural. 12. The actual recovery of the axe is itself tainted inasmuch as Ranjit Boru ah was taken to the place of recovery with handcuffs after a physical assault by the police, who had preceded him to the house of Rajib Bora. Assuming for the s ake of argument that an axe was used as the weapon of offence, there is nothing to show that the recovered axe was the very same that was used. The blood stains stated to be on the axe were not examined in any forensic laboratory and as adm itted by almost all witnesses, such an axe was common in every household in that particular village. 13. Under the circumstances, we are not prepared to accept the version of th e prosecution that the axe said to have been recovered from the house of Rajib B ora was used as the weapon of offence in the killing of Siben Hazarika. 14. We are left with the evidence of only two other important witnesses, nam ely, PW-3 Pradip Bora and PW-4 Smti Rupa Hazarika, the cousin of the deceased. 15. Insofar as PW-3 Pradip Bora is concerned he was not aware at all of the incident since he was not an eye witness but his guess was that Ajit Boruah had killed Siben Hazarika. His guess was based on the allegation that on the day of the incident Ajit Boruah was shouting in front of his house that he would finish someone from Bubul Hazarika’s family and coincidentally that same night Siben H azarika was killed. This witness admitted in his cross examination that this was disclosed by him for the first time only in the witness box and was not disclos ed even at the time of his examination under Section 161 of the CrPC. We are not inclined to give any credence to the testimony of this witness since it is base d entirely on a guess made by him and it appears to be a complete after thought. In any event this testimony is totally insufficient to convict any of the appel lants. 16. The testimony of PW-4 Rupa Hazarika is equally untrustworthy. Sh e says that she was at home at about 8.30 pm when Lelai HatiBoruah informed her that he and the others had killed Siben Hazarika and that they would kill her hu sband (Bubul Hazarika) also. It is rather unnatural that Lelai HatiBoruah, a juv enile at that time, would visit the house of Rupa Hazarika soon after having all egedly committed a murder, with a view to threaten her husband. But, be that as it may, according to this witness she went to the place of occurrence after that (that is, after 8.30 pm) and she saw the dead body of Siben Hazarika and a larg e number of people weeping and crying. They were shouting that Ajit Boruah had k illed Siben Hazarika. 17. In her cross examination PW-4 Rupa Hazarika stated that she actually lea rnt of the incident at about 7.30 pm. That being so, it is very unlikely that sh e would have remained at her residence for about one house when Lelai HatiBoruah is said to have come and met her at about 8.30 pm. Even assuming an error in t he time noted, this witness stated that she went to the place of occurrence at a bout 7.30 pm and stayed there for about 1 ‰ or 2 hours and reached home at 10 pm while in her examination in chief she says that Lelai HatiBoruah came to her re sident at about 8.30 pm. We find this testimony of this witness to be inherently contradictory. She also stated that she met Ajit Boruah on the road, apparently while she was going to the place of occurrence (and before she came to know tha t he had killed Siben Hazarika) but she did not talk to him. 18. The testimony of PW-4 Rupa Hazarika is really based on what she heard at the place of occurrence and that apart, there are some inherent contrad ictions in her testimony which cannot be reconciled with the events that took pl ace on the fateful day. We are unable to rely on the testimony of this witness f or the purpose of supporting the case of the prosecution. 19. PW-10 is the doctor who conducted the post mortem examination on Siben Hazarika and PW-11 is the officer who filed the charge-sheet while PW-12 is the Investigating Officer. It is not necessary for us to discuss their testim ony because the prime witnesses from the public, that is, PW-1 to PW-9 did not s ee the commission of the offence of murder of Siben Hazarika by any of the appel lants before us. We cannot proceed on hearsay and surmises to convict any of the appellants for the murder of Siben Hazarika. 20. On an overall consideration of the materials before us, we have more tha n a reasonable doubt about the involvement of the appellants in the murder of Si ben Hazarika. Under the circumstances, there is no option but to allow the appea l and acquit all the appellants of the alleged offence of the murder of Siben Ha zarika. 21. A free copy of this judgment be made available to the appellants. The ba il bonds of all the appellants on bail are discharged. 22. The Trial Court records be sent back immediately.