Where the prosecution’s testimony is inadequate to support the charge levied against the perpetrator, the accused’s plea of alibi will not be required to be investigated: Gauhati High Court

Page No.# 1 12 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 63 2020 SRI ANUPAM BARUAH S O SRI JATIN BARUAH R O VILL. GOSSAI PATHAR NO.2 P.O. AND P.S. BIHPURIA DIST. LAKHIMPUR ASSAM PIN 784161 THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR 2:SRI JATIN BORAH S O JOGEN BORAH R O VILL. GOSSAIBARI P.O. AND P.S. NARAYANPUR DIST. LAKHIMPUR PIN 78416 Advocate for the Petitioner : MR. K M HALOI Advocate for the Respondent : MR. M PHUKAN ADDL. PP ASSAM HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI Date : 09 04 2021 M.A. Ali J Page No.# 2 12 Learned counsel Mr. N.J. Das appearing for the appellant and the learned Additional P.P. Mr M. Phukan for the respondent were heard 2. This appeal is directed against the judgment and order dated 26.11.2019 rendered by the learned Additional Sessions Judge Lakhimpur in Sessions Case No. 178(NL) 2016 whereby the appellant was convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 3000 with default stipulation 3. The prosecution case in a nutshell was that the deceased Janmoni Baruah was the wife of the appellant Anupam Baruah. The appellant hacked his wife Janmoni Baruah to death on the night of 19.01.2016. Having come to know about the occurrence the brother of the deceased lodged the FIR Ext.3) with the Bihpuria Police Station on the basis of which police registered Bihpuria P.S. Case No 31 2016 under Section 302 IPC and upon completion of investigation submitted charge sheet against the appellant. 4. During the course of trial learned Sessions Judge framed charge against the appellant under Section 302 IPC which was abjured by him. Prosecution examined 8 witnesses in order to bring home the charge. Upon completion of the prosecution evidence the appellant was examined under Section 313 CrPC wherein the appellant took the plea of innocence and had examined three witnesses in his 5. Appreciating the evidence adduced by both the sides learned Sessions Judge convicted the appellant under Section 302 IPC and awarded sentence as indicated above 6. Aggrieved by the conviction recorded and sentence awarded by the learned Trial Court the appellant has preferred the instant appeal Page No.# 3 12 7. Learned counsel for the appellant submitted that there was no direct evidence and the conviction of the appellant was recorded solely on the basis of circumstantial evidence. The prosecution could neither adduce actionable evidence to establish any of the circumstances conclusively nor could any chain of circumstances capable of drawing an inference unerringly pointing to the guilt of the accused be established and as such the conviction and sentence of the appellant is unsustainable submits Mr Das. Supporting the impugned judgment learned Additional P.P. contended that overwhelming evidence adduced by the prosecution has established the incriminating circumstances pointing to the guilt of the accused. The incriminating circumstances duly established together with the falsity of the defence plea completed the chain so as to bring home the charge against the accused beyond all reasonable doubt and as such the impugned judgment calls for no interference submit Mr. Phukan 8. We have considered the submission made by the learned counsel for both the sides and also meticulously scrutinized the evidence and materials brought on record 9. As revealed from the submission made by the learned counsel there is no direct evidence and the prosecution case is solely based on the circumstantial evidence. On our assessment of the evidence and perusal of the impugned judgment we find that the learned Additional Sessions Judge recorded conviction of the appellant under Section 302 IPC primarily relying on the following circumstances i) The death of the deceased in the mysterious circumstances in the matrimonial home ii) the appellant was with the deceased at the time of occurrence iii) Ill treatment to the victim by the accused appellant since her marriage upon demand of iv) Availability of blood stain in the bed and other places in the house v) Leading to discovery of an axe allegedly used in the commission of the offence under Section 27 of the Evidence Act vi) False explanation given by the appellant Page No.# 4 12 10. Out of the eight prosecution witness PW 1 PW 2 and PW 5 are basically the witnesses to the occurrence. PW 3 PW 4 and PW 6 are formal witnesses to the search and seizure. PW 7 & PW 8 are the Doctor and Investigating Officer respectively. The father of the deceased has been examined as PW 1. He deposed that the appellant married the deceased four years before the occurrence. Since after the marriage the appellant used to torture his daughter under the influence of alcohol and also for non fulfillment of the demand of money. He further stated that the deceased informed about the demand of money and initially he paid Rs. 20 000 . Thereafter again he paid Rs. 20 000 and Rs. 10 000 respectively to meet the demand of the appellant. He also stated that before one day of the incident the appellant had assaulted the victim and therefore the father of the appellant invited him over phone to their house in order to discuss the matter. Accordingly healong with his wife went to the house of the accused. On their arrival the victim informed that the accused would kill her and expressed her reluctance to stay in the matrimonial home. He therefore wanted to take the deceased back home. But the accused had fled taking his two years child with him and therefore PW 1 could not bring the victim with him. He also stated that at about 1.30 AM at night the father of the appellant informed him over phone about the death of the victim. He further stated that having come to know about the death of his daughter he rushed to the house of the accused accompanied with Hiron Saikia Anada Baruah and Ratul Bhuyan and came to know that father and cousin of the accused had taken the victim to Lakhimpur Civil Hospital. This witness however did not state in his previous statement recorded under Section 161 CrPC by police that the appellant being drunk subjected the deceased to torture. He also did not state before police regarding any demand of money or payment thereof by him. He also did not state before police that the accused assaulted the deceased for not fulfilling the demand or that the victim told him that the accused would kill her or that she was reluctant to stay in the matrimonial 11. The informant PW 5 is the brother of the deceased. He stated in his evidence that the victim used to pick up quarrel frequently with the accused and husband and therefore his fatheronce took the victim to their house and the accused brought her back promising not to be engaged in quarrel. In the FIR lodged by this witness there was not even a whisper regarding any ill treatment or demand of money by the appellant. Surprisingly this witness was not even examined by the police under Section 161 CrPC and he deposed for the first time in court. Page No.# 5 12 12. What therefore crystallizes from the oral testimony of PW 1 the father and the PW 5 the brother of the deceased is that for the first time in court both of them have brought the allegation of ill treatment to the deceased for non fulfillment of the demand for money. The omission of such material facts as to ill treatment meted out to the deceased both in the FIR as well as in the previous statement recorded under Section 161 CrPC in our considered view cannot be ignored as insignificant or inconsequential minor omission inasmuch as omission of material facts amounts to contradiction Thus the omission of this material fact in the FIR and also in the previous statement before police certainly affected the credential of the allegations to the effect that the appellant subjected the victim to ill treatment or demand of money as deposed by the PW 1 & PW 5. Once the evidence of PW 1 & PW 5 is discarded the prosecution would be left with no iota of evidence to substantiate the allegation that the victim was ill treated in the matrimonial home for non payment of money. Therefore the circumstance of ill treatment to the victim by the appellant relied by the learned trial court can by no stretch of imagination be held to have been established beyond all reasonable doubt 13. Evidently on the date of the occurrence the deceased was in her matrimonial home. It is in the evidence of PW 1 that he visited the house of the appellant on the previous day of the occurrence and he wanted to take the victim to his house. However the appellant had left the house with his two years old child and therefore hecould not take his daughter to his house. The appellant by examining himself as DW 1 has also deposed that his father in lawand mother in law visited his house on the previous day of the occurrence and on that day the deceased wanted to go to her paternal house and there was an altercation between them on the said issue. He further stated that out of anger he had left the house with his three years old child and spent the night in the house of his friend Uttam Hazarika at Jakaipetua. Uttam Hazarika has been examined as DW 3 who also supported the version of DW 1 that the appellant went to his house with his child and spent the night there and on the next morning he came back having come to know about the death of his wifewanted to take his daughter with him. He also deposed that an altercation took place between the appellant and the deceased over the said matter and the appellant left the house with his son. He further deposed that at about 11 O’clock at night he heard a sound in the room of his daughter in law it has been mentioned that on being led by the appellant Anupam Baruah one rusted axe with bamboo handle having suspected blood stain was recovered by Raju Basfor from the pond in the campus of the accused. Though Raju Basfor was shown as an witness to the seizure listhe has not been examined in court. No evidence has been brought on record to show that there was any disclosure statement as to recovery of the axe vide Ext.2 Even the Investigating Officer has not deposed before court that the appellant made any disclosure as to the axe or the axe was recovered pursuant to such disclosure of the appellant. In absence of any evidence that the accused made any disclosure statement while in custody and the recovery of the axe was made pursuant to such disclosure the recovery of the axe vide Ext.2 shall not come within the purview of Section 27 of the Evidence Act. 22. Section 27 of the Evidence Act is an exception by way of the proviso to Section 25 and 26 which provides that any confession made to police is not admissible. However Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved. Thus the statement pursuant to which any fact is discovered which has a relevance to the offence is made admissible to the extent strictly and distinctly related to the facts discovered for the reasons that the statement is confirmed by the subsequent fact discovered pursuant to the statement made to police Therefore any fact discovered or any statement to the extent of discovery of fact to be admissible it must be within the scope and ambit of Section 27 of the Evidence Act. The Apex Court in Amit Singh Bhikam Singh Thakur Vs. State of Maharastra reported in2 SCC 310 succinctly laid down the requirement of Section 27 of the Evidence Act in paragraph 19 of the judgment where the Apex Court held as under “19. The various requirements of the Section can be summed up as follows Page No.# 10 12 1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact 2) The fact must have been discovered 3) The discovery must have been in consequence of some information received from the accused and not by accused s own act 4) The persons giving the information must be accused of any offence 5) He must be in the custody of a police officer.The discovery of a fact in consequence of information received from an accused in custody must be deposed to 23. Evidently there is no evidence on record oral or documentary that the accused while in custody made any disclosure statement inasmuch as neither the Investigating Officer who seized the axe from the pond nor any witness to the seizure list has deposed in Court as to any disclosure statement made by the accused or that the recovery of the axe was made pursuant to such disclosure made by the accused. The essential requirement for invoking Section 27 of the Evidence Act is that the discovery of fact in consequence of information received from the accused must be deposed in Court. Therefore in absence of any disclosure statement the recovery of the axe cannot be held to be a discovery fact under Section 27 of the Evidence Act 24. The seizure listshows that there was no visible stain of blood in the axe. It was only suspected that there might be stain of blood. The PW 4 though stated in his evidence in chief that the axe contained blood stain during cross examination he has stated that he did not notice the axe properly and according to him it could either be stain of blood or rust. Evidently the axe seized by Ext 2 was not sent for forensic examination and as such there is no evidence to link the axe sized by Ext. 2 with the commission of offence. Therefore the observation of the learned trial court that the blood stained axe used in the crime has been recovered and admitting the same as an incriminating circumstance does not appear to be borne out of evidence on record Page No.# 11 12 25. PW 6 stated in his evidence that he had seen blood stain in the room of the deceased. PW 5 also stated that when he entered the residence of the accused he found blood stained clothes lying on the bed but the deceased was not there and he came to know that she had been taken to Civil Hospital Lakhimpur. PW 3 deposed that police seized blood stained clothes from the place of occurrence in his presence vide seizure listGLT 338 where a co ordinate bench observed as under Page No.# 12 12 “(46) We may also point out that before a Court examines the correctness of the plea of alibi taken by an accused the evidence on record must otherwise be sufficient to bring home the charge against the accused. If the evidence adduced by the prosecution is insufficient to uphold the charge brought against the accused the plea of alibi taken by the accused may not be necessary to be examined. When the prosecution succeeds in proving its case the Court has if the accused has taken the plea of alibi obligation to determine whether the plea of alibi is or is not true. Moreover when the plea of alibi taken by an accused is found to be false it becomes an additional link in the chain of circumstances which may appear against the accused. In other words it is only when the prosecution succeeds in discharging its burden of proving its case against an accused that the evidence given by the accused as regards his plea of alibi can be examined in order to ascertain as to whether the accused has been able to exclude the possibility of his presence at the place and time of the alleged occurrence.” 28. As noticed here in before that the prosecution has not been able to discharge its burden to establish the charge against the accused and as such the court is not even required to examine the plea of alibi in the instant case. Be that as it may the probability of the defence plea to the effect that the injury causing death of the deceased was self inflicted one is sufficient to raise a reasonable doubt on the prosecution case. Therefore we are of the considered opinion that prosecution evidence is grossly inadequate to bring home the charge against the appellant or at least the appellant in the facts and circumstances of the case is entitled to benefit of doubt. Accordingly we set aside the conviction and sentence of the appellant u s 302 IPC and allow the appeal. 29. The appellant if in jail shall be released forthwith if not required in connection with any other JUDGE JUDGE case. 30. Send back the LCR. 

Summary: If the evidence, adduced by the prosecution is insufficient to uphold the charge brought against the accused, the plea of alibi taken by the accused may not be necessary to be examined. The judgment was passed by The High of Court Gauhati in the case of Sri Anupam Baruah Vs the State of Assam and Anr. [Crl.A./63/2020] by Division Bench consisting of Hon’ble Shri Justice Suman Shyam &amp; Mir Alfaz Ali. The prosecution case in a husk was that the deceased Janmoni Baruah was the wife of the appellant Anupam Baruah. The appellant hacked his wife Janmoni Baruah to death. Having come to know about the occurrence, the brother of the deceased lodged the FIR, based on which, police registered Case Section 302 IPC and upon completion of investigation submitted a charge sheet against the appellant. Learned Counsel for the Appellant submitted that there was no direct evidence and the conviction of the appellant was recorded solely based on circumstantial evidence. The prosecution could neither adduce actionable evidence to establish any of the circumstances conclusively, nor could any chain of circumstances capable of drawing an inference unerringly pointing to the guilt of the accused, be established and as such, the conviction and sentence of the appellant are unsustainable. Learned Counsel on the corollary contended that overwhelming evidence adduced by the prosecution has established the incriminating circumstances pointing to the guilt of the accused. The incriminating circumstances duly established together with the falsity of the defence plea completed the chain, to bring home the charge against the accused beyond all reasonable doubt and as such, the impugned judgment calls for no interference. The court relying on this court judgment Narayan Debnath –Vs.- State of Assam, it was held that “We may also point out that before a Court examines the correctness of the plea of alibi taken by an accused, the evidence on record must, otherwise, be sufficient to bring home the charge against the accused. If the evidence, adduced by the prosecution, is insufficient to uphold the charge brought against the accused, the plea of alibi, taken by the accused, may not be necessary to be examined.”