Gauhati High Court
Page No.# 1/2 vs The State Of Assam And Anr on 31 July, 2025
Author: S.K. Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/20
GAHC010263192022
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./353/2022
TIBHU TANTI AND ANR.
S/O LATE KAMDEV TANTI,
R/O SOKALATINGA TEA ESTATE, BAHBARI LINE,
P.O.- SOKALATINGA,
P.S.- PULIBOR,
DIST.- JORHAT, ASSAM.
2: MAHESH URIA
S/O LATE GHANA URIA
R/O SOKALATINGA TEA ESTATE
BAHBARI LINE
P.O.- SOKALATINGA
P.S.- PULIBOR
DIST.- JORHAT
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P., ASSAM.
2:POBON BAWRI
S/O LATE LAL BAURI
R/O SOKALATINGA TEA ESTATE
BAHBARI LINE
P.O.- SOKALATINGA
P.S.- PULIBOR
Page No.# 2/20
DIST.- JORHAT
ASSAM
PIN- 785703
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE KARDAK ETE
Advocate for the Appellants : Shri A. Ahmed, Advocate.
Advocates for the respondent : Ms. B. Bhuyan, Sr. Advocate & APP, Assam, assisted by
Ms. R. Das, Advocate.
Date of hearing : 23.07.2025
Date of judgment : 31.07.2025
JUDGMENT & ORDER
(S.K. Medhi, J)
This instant Appeal has been preferred under Section 374(2) of the Code
of Criminal Procedure, 1973 [corresponding to Section 415 of the BNSS] against
the judgment and order dated 05.11.2022 passed by the learned Addl. Sessions
Judge, Jorhat in Sessions Case No. 241/2016 whereby the appellant has been
convicted under Section 302/34 of the IPC [corresponding to Section 103 BNS
and 3(5) BNS] and sentenced to undergo rigorous imprisonment for life and to
pay a fine of Rs.5,000/- (Rupees Five Thousand) i/d to undergo S.I. for 6
Page No.# 3/20
months.
2. The criminal law was set into motion by lodging of an Ejahar on
13.07.2016 by one Pawan Bawri, who is the son of the deceased. It was alleged
inter-alia that on the said date at about 12.15 am as their neighbour Dipanjali
Uria, daughter of Late Kamdev Uria had died out of an ailment, it was suspected
that the said death was because of some incantation of his father. At around
1.30 am, Sri Mahesh Uria, younger brother of Late Kamdev Uria and son of
Ghana Uria, accompanied by a resident of the Bahbari Branch of the Tea Estate,
armed with weapons had trespassed into their house and took his father Shri
Lal Bawri forcibly from their house to the house of the neighbour Tibhu Tanti
where they tied his father to a post of the verandah and then Tibhu Tanti and
Mahesh Uria, in association with the people of the village had brutally killed his
father by assaulting him throughout the night with weapons like rod, hammer,
spike etc. Thereafter, they had dragged the dead body of his father and threw it
in river Kakodonga. It has also been alleged that though he was hearing the
scream of his father when the miscreants were torturing him, they did not allow
him to go near his father. The police had recovered the body of the father from
the river in the morning.
3. Based on the aforesaid Ejahar, the FIR was registered as Pulibor P.S. Case
No. 197/2016 and investigation had begun. In the said investigation, the
statements of the witnesses were recorded, seizure of incriminating materials
made, inquest done, sketch maps prepared and after completion of the
formalities, the charge sheet was laid against four persons including the present
two appellants. On denial of the charges, the trial had begun in which the
prosecution had adduced evidence through 6 nos. of prosecution witnesses.
4. The informant had deposed as PW-1. He had stated that on the relevant
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day, he was at Naharani and at night his mother had told him that Mahesh Uria
had called his father and took him away from their house and thereafter, he was
taken to Tibhu Tanti's house. At 6.00 am, PW-1 had arrived home and found his
mother crying and she told him that his father was killed and thrown into river
Kakodonga. Thereafter, the police brought the dead body of his father to the
house and he saw injuries on his entire body and his frontal teeth were missing.
Accordingly, the Ejahar was lodged which was proved as Ext. 1. In his cross-
examination, he had however stated that he did not know what was written in
the Ejahar and had put his signature as he was asked to do. He had also stated
that accused Mahesh Uria was their neighbour and his father used to
accompany him on outings. He had however denied the suggestion that his
mother did not tell him that his father had been hacked and thrown into the
river. He had however admitted that the mother did not tell him who had killed
him. He had also stated that his father used to consume liquor and denied the
fact that his father had an illness of shivering and that the accused persons
were not involved in the murder of his father.
5. PW-2 is another son of the deceased who is the younger brother of the
informant. He had stated that on the date of the occurrence, he was at home
and a girl, namely, Dipanjali Uria of the neighbourhood had died. At that time,
his father had gone to see the dead body of Dipanjali Uria. After a while, one
Bapu Bawri came to their house and said that his father was kept tied and
asked them not to come out of the house and on the next morning, he found
the dead body of his father. At that stage, the said PW-2 was declared hostile
and was cross-examined by the prosecution. He had however denied that he
had stated before the police that Mahesh Uria accompanied by Tibhu Tanti had
come to their house and had taken away his father and assaulted him in the
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house of the deceased girl. He had also denied the suggestion that he had
heard the scream of his father and that he could not recognize the people as it
was dark and a large number of people were there.
6. PW-3 is the wife of the deceased. She had stated that the accused Mahesh
Uria had come to their house and took away her husband to Tibhu Tanti's house
where he was assaulted. It was also stated that though they had gone to see
him, they were not allowed to do so as one Bapu Bawri had forbade them from
seeing her husband as the accused might assault them also. The husband of
PW-3 was assaulted from 12 midnight in the house of Tibhu Tanti by tying him
up and later the police recovered the dead body of her husband from river
Kakodonga. She had also deposed that the husband was assaulted alleging that
he was dainee (witch) and Tibhu Tanti's daughter, Dipanjali had died before this
incident.
In the cross-examination, she had however stated that she had not come
out of the house and that prior to the incident her husband had good
relationship with Mahesh and the other accused persons. She had stated that
she was not aware as to who had tied her husband and assaulted since she was
at home. She had also stated that at that time, the entire area was submerged
by flood. She had stated that she was not aware as to how many people had
gathered in the night.
7. PW-4 is the Doctor who had conducted the post-mortem on the deceased.
In the opinion of the Doctor, the death was due to coma as a result of head
injury and all the injuries were ante mortem caused by blunt weapon.
For ready reference, the findings are given herein below.
"Injuries:-
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1) Lacerated injury of size 4 cm x 1cm x scalp deep over occipital region
underneath adjacent areas of scalp are contused.
2) Abraded contusion of size 3 cm x 2 cm over left size of forehead.
3) Patterned abrasion with contusion 7 cm x 2 cm over front of chest,
underneath fracture of sternum bone present.
4) Patterned abrasion with contusion of size 8cm x 1cm over left side of chest
and abdomen.
5) Patterned abrasion with contusion of size 7cm x 1cm over left side of chest
and abdomen situated 1.5 cm below injury No.4.
6) Patterned abrasion with contusion of size 6 cm x 2cm over back of left
shoulder joint.
7) Patterned abrasion with contusion of size 6cm x 2cm over outer aspect of left
forearm.
8) Patterned abrasion with contusion of size 6cm x 2cm over front of left leg
middle third.
N.B. Above mentioned injuries contain adherent blood clots over wound
margins which resist washing by running water.
MARKS OF LIGATURE ON NECK DISSECTION ETC.
No ligature mark around the neck. On dissection neck tissues as
described in injury No. 1.
SCALP, -As described,
SKULL-healthy
VERTEBRAE- healthy.
MEMBRANE-Congested, subdural haemorrhage over both cerebral hemispheres
of the brain.
BRAIN AND SPINAL CORD - brain- congested
Spinal cord-Not examined.
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LIVER, SPLEEN, Kidney and bladder - all healthy
WALLS, -As described
RIBS & CARTILAGE - As described
ORGANS OF GENERATION, EXTEMA & INTERNAL - All healthy.
WALLS, PERITONEUM, MOUTH, PHARYNX AND OESOPHAGUS - Healthy
STOMACH AND ITS CONTENTS - healthy, empty.
SMALL INTESTINE AND ITS CONTENTS - Healthy, contain fluidy matter
LARGE INTESTINE AND ITS CONTENTS - healthy, contains gases and faecal
matters.
PLEURAE -healthy
RIGHT AND LEFT LUNG-healthy
HEART- healthy, full.
VESSELS-healthy.
INJURY - As described
DISEASE OR DEFORMITY. Not detected.
FIACTURE - As described
DISLOCATION - Not detected.
MORE DETAILED DESCRIPTION OF INJURY OR DISEASE - Nil.
Opinion: As to the cause of death, death was due to coma as a result of head
injury. All injuries were ante mortem caused by blunt weapon which was
homicidal in nature.
Approximately time since death 12 to 18 hours.
8. PW-5 is the VDP Secretary who had stated of having come to know about
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the incident in the morning. He had stated that on the earlier day at about 7.30
pm, he along with one Sunny had visited the house of Tibhu Tanti to enquire
about the health of his sister who was suffering from tuberculosis and upon
reaching there, pharmacist of the Bahbari Tea Estate Sunny, who had
accompanied him had declared her dead. On the next morning, the Secretary of
the Tea Estate, Bapu Uria, (since deceased) informed that a crowd had killed Lal
Bawri and had asked him to come to the place of occurrence. However, he did
not go to the place of occurrence and had called the Pulibor Police Station and
informed them about the incident and thereafter, the police had come to
investigate the case. He was an inquest witness, the report of which was proved
as Ext. 2. In the cross examination, PW-5 had stated that Bapu Uria did not tell
him that the accused persons were involved in the physical assault or killing of
Lal Bawri.
9. PW-6 is the I.O. who had done the investigation of the instant case. He
had deposed regarding the steps taken pursuant to the lodging of the Ejahar.
He had proved the sketch map prepared as Ext. P4, the inquest report as Ext.
P2 and the charge sheet submitted as Ext. P5. In his cross examination, he had
denied the fact that PW2 did not state before him that accused Mahesh Uria
came along with Tibhu Tanti and visited their house and took away his father
with him and that he had heard the cries of his father.
10. Upon completion of the prosecution witness, the incriminating materials
were put to the accused in his examination under Section 313 of the Cr.P.C.
[corresponding to Section 351 of the BNSS] and the veracity and truthfulness of
the materials were denied by the appellants.
11. Based on the aforesaid materials including the response of the appellants,
the impugned judgment has been passed which is the subject matter of
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challenge in the present appeal. It may be mentioned that though four persons
were charged and tried, two were acquitted and the present appellants were
convicted and sentenced.
12. We have heard Shri A. Ahmed, learned counsel for the appellants. We
have also heard Ms. B. Bhuyan, learned Senior Counsel and Addl. Public
Prosecutor, Assam assisted by Mr. R. Das, learned counsel.
13. The learned counsel for the appellants has submitted that there is no
eyewitness in the incident and the evidence are circumstantial in nature and
therefore, there is a heavy burden cast upon the prosecution to prove beyond
all reasonable doubt the circumstances which are linked and unbroken which
lead to only one conclusion i.e., of the guilt of the appellants and no other
hypothesis is available.
14. By drawing the attention of this Court to the impugned judgment, more
specifically, paragraph 46 wherein the circumstances which were taken into
consideration by the learned Trial Judge, the learned counsel for the appellants
has submitted that the circumstances (a) to (h) do not pinpoint towards the
appellants alone and the involvement of other persons cannot be ruled out. He
has submitted that in a matter which involves circumstantial evidence, any other
hypothesis or involvement of any other person has to be totally ruled out and
the circumstances has to be such that it is only the appellants who appear to be
guilty of the offence in question.
15. The learned counsel has also been critical of the impugned judgment
wherein the aspect of Section 106 of the Indian Evidence Act [corresponding to
Section 103 of the BSA] has been taken into consideration. He has submitted
that the aforesaid provision will not be applicable at all in the facts and
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circumstances of the case as it would relate only to an incident which happens
in secrecy. It is submitted that the incident was admittedly in front of a
gathering wherein there would be no special knowledge which can be attributed
to the appellants requiring them for an explanation under the aforesaid
provision of law.
16. In support of his submission, the learned counsel for the appellants has
relied upon the following case laws:
(i) AIR 2025 SC 2538 [Padman Bibhar vs. State of Odisha]
(ii) AIR ONLINE 2025 GAU 386 [Moni Kakati @ Bhupen Ch. Kakati vs.
State of Assam]
(iii) AIR Online 2000 SC 474 [Raja Ram vs. State of Rajasthan]
(iv) AIR 2018 SC 5361 [Reena Hazarika vs. State of Assam]
17. The case of Padman Bibhar (supra) has been cited on the aspect of last
seen theory. For ready reference, the relevant observations made by the Hon'ble
Supreme Court are extracted herein below:
"21. Similarly, this Court in Rambraksh alias Jalim v. State of Chhattisgarh
has reiterated above legal position in the following words in paras 12 and
13:
"12. It is trite law that a conviction cannot be recorded against the
accused merely on the ground that the accused was last seen with
the deceased. In other words, a conviction cannot be based on the
only circumstance of last seen together. Normally, last seen theory
comes into play where the time gap, between the point of time
when the accused and the deceased were seen last alive and when
the deceased is found dead, is so small that possibility of any person
other than the accused being the perpetrator of the crime becomes
impossible. To record a conviction, the last seen together itself
would not be sufficient and the prosecution has to complete the
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chain of circumstances to bring home the guilt of the accused.
...
22. This Court in Bodhraj v. State of J and K. (2002) 8 SCC 45: (AIR 2002
SC 3164) held that: (SCC p. 63, para 31)
31. The last seen theory comes into play where the time gap
between the point of time when the accused and the deceased were
last seen alive and when the deceased is found dead is so small that
possibility of any person other than the accused being the author of
the crime becomes impossible.’
It will be hazardous to come to a conclusion of guilt in cases where
there is no other positive evidence to conclude that the accused and
the deceased were last seen together.”
18. The case of Moni Kakati (supra) has been cited to bring in the aspect as
to how circumstantial evidence are to be assessed in a criminal trial. The aspect
of the requirement of conclusive proof and not merely suspicion have also been
highlighted. In the said case, this Court took the aid of the land mark case of
Sharad Birdhichand Sarda and the case of Sujit Biswas. For ready
reference, the relevant observations are extracted herein below:
“39. The Hon’ble Supreme Court in the landmark case of Sharad
Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116:
(AIR 1984 SC 1622) has laid down the five golden principles to be
followed in cases of circumstantial evidence. For ready reference, the
relevant portion is extracted hereinbelow-
“151. Before discussing the cases relied upon by the High Court we would
like to cite a few decisions on the nature, character and essential proof
required in a criminal case which rests on circumstantial evidence alone.
The most fundamental and basic decision of this Court is Hanumant v.
State of Madhya Pradesh, 1952 SCR 1091: (AIR 1952 SC 343). This case
has been uniformly followed and applied by this Court in a large number
of later decisions up-to-date, for instance, the cases of Tufail v. State of
Uttar Pradesh, (1969) 3 SCC 198 (AIROnline 1969 SC 191) and Ramgopal
v State of Maharashtra, AIR 1972 SC 656. It may be useful to extract
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what Mahajan, J. has laid down in Hanumant‘s case (at pp. 345-46 of
AIR) (supra)
“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of
guilt is to be drawn should in the first instance be fully established and all
the facts so established should be consisent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability
the act must have been done by the accused.”
7. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be said
to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned ‘must or should and not ‘may be established. There is not only
a grammatical but a legal distinction between ‘may be proved’ and ‘must
be or should be proved’ as was held by this Court in Shivaji Sahebrao
Bobade v. State of Maharashtra, (1973) 2 SCC 793 (AIR 1973 SC 2622)
where the following observations were made:
“certainly, it is a primary principle that the accused must be and not
merely may be guilty before a Court can convict and the mental distance
between ‘may be’ and ‘must be’ is long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be consistent only with the hypothesis
of the guilt of the accused, that is to say, they should not be explainable
on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be
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proved, and
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all haman probability the act must have
been done by the accused.
8. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence.”
41. In the case of Sujit Biswas v. State of Assam reported in (2013) 2 SCC
406: (AIR 2013 SC 3817), the aspect of suspicion vis-à-vis the
requirement of proof beyond all reasonable doubt in a criminal case has
also been laid down which reads as follows:
6. Suspicion, however grave it may be, cannot take the place of proof, and
there is a large difference between something that ‘may be’ proved, and
something that ‘will be proved’. In a criminal trial, suspicion no matter
how strong, cannot and must not be permitted to take place of proof. This
is for the reason that the mental distance between ‘may be’ and ‘must be’
is quite large, and divides vague conjectures from sure conclusions. In a
criminal case, the court has a duty to ensure that mere conjectures or
suspicion do not take the place of legal proof. The large distance between
‘may be’ true and ‘must be’ true, must be covered by way of clear, cogent
and unimpeachable evidence produced by the prosecution, before an
accused is condemned as a convict, and the basic and golden rule must
be applied. In such cases, while keeping in mind the distance between
‘may be’ true and ‘must be’ true, the court must maintain the vital
distance between mere conjectures and sure conclusions to be arrived at,
on the touchstone of dispassionate judicial scrutiny, based upon a
complete and comprehensive appreciation of all features of the case, as
well as the quality and credibility of the evidence brought on record. The
court must ensure, that miscarriage of justice is avoided, and if the facts
and circumstances of a case so demand, then the benefit of doubt must
be given to the accused, keeping in mind that a reasonable doubt is not
an imaginary, trivial or a merely probable doubt, but a fair doubt that is
based upon reason and common sense.”
19. The case of Raja Ram (supra) has been cited to bring home the
Page No.# 14/20contention that the prosecution is bound by its own witnesses unless declared
hostile. For ready reference, the relevant observations are extracted herein
below:
“9.But the testimony of PW-8- Dr. Sukhdev Singh, who is another
neighbour, cannot easily be surmounted by the prosecution. He has
testified in very clear terms that he saw PW-5 making the deceased
believe that unless she puts the blame on the Appellant and his parent
she would have to face the consequences like prosecution proceedings. It
did not occur to the public prosecutor in the trial court to seek permission
of the court to hear PW-8 as a hostile witness for reasons only known to
him. Now, as it is, the evidence of PW-8 is binding on the prosecution.
Absolutely no reason, much less any good reason, has been stated by the
Division Bench of the High Court as to how PW-8’s testimony can be side-
lined.”
20. The case of Reena Hazarika (supra) has been cited wherein the Hon’ble
Supreme Court had dealt with the application of Section 106 of the Indian
Evidence Act. For ready reference, the relevant observations are extracted
herein below:
“3. The deceased resided along with the appellant and his minor daughter
CWI, Miss Puja Hazarika, aged about 9 years, in the tenanted premises
belonging to PWI Manoj Kumar Deka, PW2 Dipen Deka and PW3
Bhrigumoni Deka, who are brothers. The appellant is stated to have
assaulted the deceased in the intervening night of
10.05.2013/11.05.2013. PWs. 1, 2 and 3 are stated to have heard noises
and on going there, found the deceased with head injury attributed to a
fall, but that the deceased was otherwise alright. They were unable to
Page No.# 15/20take him to the hospital because of rains and the unavailability of an
ambulance. According to the postmortem report proved by PW6, Dr. Ritu
Raj Chaliha the deceased had the following injuries on his person:
…
4. The Trial Court and the High Court held that the present was a case of
circumstantial evidence. The last seen theory establishes the presence of
the appellant with the deceased at night. Her unnatural conduct because
she was not crying, she was the assailant of the deceased.
8.The essentials of circumstantial evidence stand well-established by
precedents and we do not consider it necessary to reiterate the same and
burden the order unnecessarily. Suffice it to observe that in a case of
circumstantial evidence the prosecution is required to establish the
continuity in the links of the chain of circumstances, so as to lead to the
only and inescapable conclusion of the accused being the assailant,
inconsistent or incompatible with the possibility of any other hypothesis
compatible with the innocence of the accused. Mere invocation of the last
seen theory, sans the facts and evidence in a case, will not suffice to shift
the onus upon the accused under Section 106 of the Evidence Act, 1872
unless the prosecution first establishes a prima facie case. If the links in
the chain of circumstances itself are not complete, and the prosecution is
unable to establish a prima facie case, leaving open the possibility that the
occurrence may have taken place in some other manner, the onus will not
shift to the accused, and the benefit of doubt will have to be given.”
21. The learned counsel has submitted that since the date of the judgment,
the appellants are in custody and they are to be released forthwith by allowing
the appeal.
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22. Per contra, Ms. B. Bhuyan, the learned Addl. Public Prosecutor, has
supported the judgment and has submitted that there is no merit in the appeal
which is liable to be dismissed. She has submitted that PW3, who is the wife of
the deceased is a prime witness and her testimony which is corroborated by the
other evidence would be enough to maintain the present conviction. She has
submitted that in the instant case, there would be application of the last seen
theory. She has highlighted the aspect that as per the materials available on
record, the appellant Mahesh Uria had taken out the deceased at 12.15 am from
his home and by referring to the inquest report – Ext.-2, the learned Addl. Public
Prosecutor has submitted that the dead body was recovered at 4 am in the
morning. She has submitted that the proximity of time of recovery of the dead
body would make it a fit case wherein the aforesaid doctrine of last seen would
be applicable.
23. She has also brought in the aspect of motive in causing the present
offence. She has submitted that it is on record that the sister of appellant No. 1
had died and it was suspected that such death was because of the evil practice
of the deceased. It is on record that the deceased was a quack and the sister of
the appellant No.1 was being treated by him who had died just before the
present incident. She has also submitted that in the facts and circumstances of
the instant case, Section 106 of the Indian Evidence Act will apply as it was
incumbent upon the appellants to put forward an explanation regarding the role
and as to how the death had occurred and the body was found in the river. She
has also submitted that the materials on record would suggest that there was
no previous enmity and therefore, there would be no reason to blame the
present appellants.
24. The learned Addl. Public Prosecutor, accordingly submits that the
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impugned judgment is required to be sustained and the appeal be dismissed.
25. The rival submissions have been duly considered and the materials,
including the TCRs placed before this Court have been carefully examined.
26. Admittedly, the present is a case which hinges upon circumstantial
evidence and there is no direct evidence in the form of eyewitness.
27. As regards the contents of the Ejahar lodged on 13.07.2016 by PW-1, it
appears that the contents are wholly inconsistent with the deposition of PW-1.
Whereas, in the Ejahar, the PW-1 had stated that he had heard the shouts from
his father while he was being assaulted, in the dock as a witness he had stated
that on the relevant evening, he was not even in the locality and was at
Naharani and had come back only in the next morning at 6 am when his mother
had narrated the incident. Be that as it may, since an Ejahar is only a
mechanism to put a criminal law into motion and is not a substantive piece of
evidence, we have to stick to the evidence adduced by PW-1 in the dock.
28. PW-1 is not an eyewitness and has rather adduced evidence on the basis
of certain information received. As noted above, PW-1 had arrived home at 6
am on the next morning when his mother had narrated the incident of the death
of the father.
29. PW-2 is the younger brother of PW-1 and the son of the deceased, who
however was declared hostile. Though the law relating to hostile witness is clear
that even parts of the deposition of a hostile witness can be taken into support
by the prosecution, here in this case, the deposition of PW-2 does not appear to
support the case of the prosecution even before the aspect of declaring him
hostile had reached. In the regard, one may rely upon the proposition laid down
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by the Hon’ble Supreme Court in the case of State of U.P. Vs. Ramesh
Prasad Mishra reported in (1996) 10 SCC 360 wherein the following
observations have been made:
“7. … It is equally settled law that the evidence of a hostile witness
would not be totally rejected if spoken in favour of the prosecution
or accused, but it can be subjected to close scrutiny and that
portion of the evidence which is consistent with the case of the
prosecution or defence may be accepted. …”
30. The deposition of PW-3, who is the wife of the deceased is of crucial
importance. She has stated that the deceased was taken by Mahesh Uria to the
house of Tibhu Tanti where he was assaulted. However, except for the fact of
witnessing the deceased being taken away by Mahesh Uria to the house of
Tibhu Tanti, the rest of the happenings were not witnessed by PW-3. We have
found that while narrating the aspect of taking away the deceased by Mahesh, it
was not stated that such taking away was by force, and rather in the cross-
examination it appears that the deceased used to occasionally go out with
Mahesh Uria and the relationship was cordial. Nonetheless, though the aforesaid
aspect of taking away the deceased may be treated to be one of the
circumstances in favour of the prosecution, the same cannot constitute the
entire circumstances or a chain of circumstances which would lead to the
conclusion of the guilt of the appellants alone. Therefore, it is required to see if
the other circumstances are so intrinsically linked so as to arrive at only one
conclusion i.e., the guilt of the appellants.
31. PW-4 is the Doctor who had conducted the post-mortem upon the
deceased and it appears that the death was because of coma resulting out of
head injuries. The injuries upon the body of the deceased is proved and it is
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however required on the part of the prosecution to establish that such injuries
were caused by the present appellants.
32. PW-5, who is the VDP secretary, appears to be a hearsay witness. He has
stated that he came to know about the incident in the morning from one Bapu
Uria who had informed that a crowd had killed the deceased and he had
accordingly informed the Pulibor Police Station. It is on record that the aforesaid
Bapu Uria, who would perhaps have been a crucial witness had passed away
during the proceeding. It also appears from the cross-examination of PW-5 that
Bapu Uria did not tell him that the accused persons were involved in the
physical assault or killing of the deceased.
33. PW-6 evidence has been sifted in which he had proved the sketch map,
inquest report and charge sheet and had also confirmed regarding the
statement of PW-2 Raja Bawri. As noted above, PW-2 was declared hostile and
his evidence would otherwise not lend much support to the prosecution case.
34. From the aforesaid evidence, it would not appear that a complete chain of
circumstance have been able to be established by the prosecution beyond all
reasonable doubt which leads to the only conclusion of the involvement of the
present appellants and none else in the commission of the offence in question.
It rather appears that the impugned conviction is based more on suspicion than
on conclusive evidence. The principle on the aforesaid aspect which has been
enunciated by the Hon’ble Supreme Court in the case of Sujit Biswas (supra)
has been reiterated in subsequent decision and in this regard, the observations
made in the case of Rajiv Singh Vs. State of Bihar [(2015) SCC OnLine
1336] may be referred which is as follows:
“60. It is well entrenched principle of criminal jurisprudence that
Page No.# 20/20a charge can be said to be proved only when there is certain and
explicit evidence to warrant legal conviction and that no person
can be held guilty on pure moral conviction. Howsoever grave the
alleged offence may be, otherwise stirring the conscience of any
court, suspicion alone cannot take the place of legal proof. The
well established cannon of criminal justice is “fouler the crime
higher the proof”. In unmistakable terms, it is the mandate of law
that the prosecution in order to succeed in a criminal trial, has to
prove the charge(s) beyond all reasonable doubt.”
35. In view of the aforesaid facts and circumstances, we are of the considered
opinion that the materials in this case would not be sufficient to come to a
conclusion of guilt and that the same has been proved beyond all reasonable
doubt. We are of the opinion that the benefit of doubt is to be given to the
appellant.
36. Accordingly, we set aside the impugned judgment and order dated
05.11.2022 passed by the learned Addl. Sessions Judge, Jorhat in Sessions Case
No. 241/2016 convicting and sentencing the appellant under Section 302/34 of
the IPC and sentenced to undergo rigorous imprisonment for life and to pay a
fine of Rs.5,000/- (Rupees Five Thousand) i/d to undergo S.I. for 6 months and
acquit the appellant. The appellant is accordingly directed to be released
forthwith unless he is wanted in any other case.
37. Send back the TCRs.
JUDGE
Comparing Assistant
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