MIR ALFAZ ALI,J. -
(1.) The appellant Baikuntha Das was convicted by the learned Addl. Sessions Judge, Jorhat u/s 302 IPC in Sessions Case No. 154(J-J)/2013 and was sentenced to imprisonment for life and a fine of Rs. 5,000/- with default stipulation.
(2.) As per prosecution case, on 4.9.2013, at about 6.30 in the morning, when the victim Nitul Das was going to shop by riding his motorcycle, the appellant Baikuntha Das restrained him in front of his house and assaulted with a sharp weapon causing serious injuries. Having sustained injuries, when the victim fell down, the accused appellant Baikuntha Das left the place by taking away the gold chain and two rings from the victim. Immediately, with the help of the villagers, the victim was shifted to Jorhat Civil Hospital, where he was declared dead. FIR (Ext-1) was lodged by PW1, the younger brother of the deceased, on the basis of which, police registered a case. In course of investigation, police arrested the accused, and seized a dao alleged to be weapon of offence vide Ext. 3, seizure list. Inquest report Ext- 2 was prepared by Executive Magistrate B.D. Das and the dead body was sent for post mortem examination.
(3.) PW 12, Dr. Tapan Das, who conducted the post mortem examination found the following injuries on the body of the victim :-
"1. A chop injury of size 14X 1 cm X brain deep present on the occipital part of the head upper part placed horizontally, 20 cm form the prominence of the 7th cervical spine. The scalp, skull, mennings and brain are found cut. ,
2. A chop injury of size 8 x 1.55 cm x bone deep present on the occipital part of the head. 1 cm below injury no. 1 and parallel to it.
3. A chop injury of size 4 x 8 cm c scalp deep present on the occipital area of the head 7 cm below and parallel to injury No. 1."
4. On completion of investigation charge-sheet (Ext-9) was laid against the appellant u/s 302/379 IPC and eventually the appellant stood trial.
5. During trial, the appellant pleaded innocence and denied charges. The prosecution examined twelve witnesses to substantiate the charge.
6. We have heard Ms. P.B. Bordoloi, learned Amicus Curiae and Mr. P.P. Baruah, learned Public Prosecutor for the State respondent.
7. PW 12, the doctor opined that death of the victim was due to comma resulting from chop injuries sustained over the head, which were ante mortem and caused by heavy sharp cutting weapon and homicidal in nature. The homicidal death of the deceased was, in fact, not disputed. The only question to be decided is, who caused the injuries leading to the death of the deceased Nitul. Apparently, there was no eye witness to the occurrence and the learned trial court relying on the following circumstances recorded the conviction of the appellant :-
(i) After the occurrence the appellant surrendered before the police at the police station and handed over a dao which was allegedly used in the commission of offence.
(ii) The accused made a confession in the police station before PW 9,10, 11 as well as PW 2.
(iii) There was illicit relationship between the victim and the wife of the appellant
(iv) Oral dying declaration made by the deceased before PW 4. 8. It is settled position of law that in a criminal case, resting entirely on circumstantial evidence, all the circumstances are required to be proved solidly beyond reasonable doubt and the chain of circumstances should be such, that there should not be any missing link and it should lead only and only to the conclusion, consistent with the guilt of the accused. The Apex Court in Hanumant Vs.State of Madhya Pradesh reported in AIR 1953 (SC) 343: 1953 Cr.L.J. dealing with the nature of proof required in a criminal case which rests on circumstantial evidence observed as under:
"It is well to remember that in cases where the evidence in 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 consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency 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." 9. The above decision has been uniformly followed and applied by the Apex Court in many other subsequent decisions including Sharad Birdhichand Sara Vs. State of Maharashtra reported in AIR 1984 (SC) 1622, wherein the Apex Court laid down the following five golden principles for proof of a case by circumstantial evidence.
"152. 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 Sahabrao Bobade and Anr. V. State of Paharashtra 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 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 human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 10. Keeping in view the above proposition of law, let us now see whether circumstances relied by the learned trial court were proved solidly beyond doubt. PW 2 testified, that the accused appellant arrived at the police station with a dao in his hand and told that "he had finished Bipul (I have finished Bipul today)". Police seized the said dao vide Ext. 3 seizure list. According to PW 9, an Assistant Sub-Inspector of Police and PW 11, Investigating Officer, the accused came with a dao in his hand and told that he had cut his wife Runjun Das and one Nitul Das. According to PW 10, a police constable, the accused appeared with a dao and told that he has cut his wife and one person with the said dao. PW 11 also proved Ext. 7, the GD Entry made with regard to the appearance of the accused in the police station with a dao. 11. During cross-examination, PW 11 admitted that he arrested the accused on 06.09.13 and produced him before the Magistrate on the same day. He also admitted, that while producing the accused before the Magistrate, neither the seizure list, whereby the dao' was seized, nor the seized dao' was produced before the Magistrate, though law requires that the seizure shall be forthwith reported to the Magistrate having jurisdiction. The weapon of offence, i.e., the said dao' allegedly seized from the accused was also not sent for forensic examination. 12. PW 4, mother of the deceased stated, that hearing hue and cry, she went to the place of occurrence, which was near the courtyard of the appellant, and found that the deceased was lying with injuries and bleeding profusely. Immediately, he took the deceased on his lap and the deceased said that Baikuntha Das assaulted him and immediately, thereafter, he became senseless. From the cross-examination of PW 4 and the testimony of PW 11, Investigating Officer, it is revealed that PW 4 did not state in her previous statement u/s 161 Cr PC regarding the oral dying declaration made by the victim, as deposed by her before the court. 13. PW 1, the elder brother of the deceased stated, that hearing hue and cry, he arrived at the place of occurrence and found the victim lying in a pool of blood. Immediately, he shifted the victim to hospital, where he was declared dead by the doctor. 14. PW 3 deposed that he arrived at the place of occurrence following PW 4 and found the victim lying in a senseless condition with injury and bleeding profusely. PW 5, 6 and PW 7 also deposed in the same tune, that hearing hue and cry, they arrived at the place of occurrence and found the victim lying with injuries. Evidently, PW 3 and PW 4 arrived at the place of occurrence almost at the same time. However, PW 3 did not state about any oral dying declaration made by the victim. It was also revealed from the testimony of PW 1, PW 3, PW 5, PW 6 and PW 7 that the deceased was lying at the place of occurrence in a pool of blood and he was in a senseless condition and not in a position to speak. 15. Therefore, the evidence of PW 1, PW 3, PW 5, PW 6 and PW 7 tend to belie the evidence of PW 4, as to the oral dying declaration made by the victim. Evidently, she did not state anything about the dying declaration in her previous statement u/s 161 Cr PC. We are not oblivious of the proposition of law that all omissions during previous statement u/s 161 Cr PC cannot be considered as contradiction. However, omission of the material facts during previous statement u/s 161 Cr PC and stating such fact for the first time in court during trial would certainly be fatal for prosecution, inasmuch as, the omission to state a material fact, which goes to the root of prosecution case, cannot be brushed aside as insignificant, more particularly when such statement is apparently an improvement of the previous statement in view of the oral testimony of PW 1, PW 3, PW 5, PW 6 and PW 7. The testimony of PW 4 for the first time in court as to the oral dying declaration of the accused is hardly worthy of trust. Therefore, no credibility can be attached to the so called dying declaration. 16. Learned trial court heavily relied on the oral testimony of PW 2, PW, 9, PW 10 and PW 11 that the accused arrived at the police station with a dao in his hand and made a confession that he had cut his wife Runjun Das and Nitul Das. It needs no mention that the extra judicial confession of the accused in the police station, as deposed by PW 2, PW 9, PW 10 and PW 11 is inadmissible under Section 25 of the Evidence Act. Evidently, neither the dao allegedly seized from the accused, nor the seizure list was produced before the Magistrate, when the accused was produced. From Ext. 3, the seizure list transpires that the same was shown to Chief Judicial Magistrate on 27.9.2013 i.e., after 22 days of the alleged seizure, though the law requires that such seizure shall be forthwith reported to the Magistrate having jurisdiction. Inordinate delay in sending the seizure list to the Magistrate, though accused was produced on the next day itself, creates a doubt as to the credibility of Ext. 3. Admittedly, the 'dao' allegedly seized from the accused was not sent for forensic examination. 17. It is no doubt true, that failure to get the weapon of offence chemically examined may not be fatal always, if there are other evidence to substantiate the charge. But when the case is based on circumstantial evidence and more particularly when the seizure of weapon is a vital circumstance, relied by the prosecution, such failure is fatal, inasmuch as, without chemical examination, it may not be possible to connect weapon with the commission of offence. The Apex Court, in S.K. Yusuf Vs. State of W.B. reported in AIR 2011 SC 2283 observed that in case of circumstantial evidence, not sending the weapon used in crime for chemical analysis is fatal, reason being that circumstantial evidence may not lead to the only irresistible conclusion, that the appellant alone was the perpetrator of crime and none else and that in absence of any report of serologist as to presence of human blood on the weapon, may make the conviction of the accused unsustainable. 18. Another circumstance relied by the trial court is the relationship between the deceased and the wife of the accused. The wife of the accused was examined as PW 8. The testimony of PW 8 was to the effect that she heard someone shouting, but she did not come out. This witness was however, declared hostile. It is no doubt true, that testimony of a hostile witness does not get washed off, merely because of being declared hostile by the prosecution. If the evidence of such witness is otherwise found to be reliable and supporting, the testimony of other witnesses, there is no bar in relying on the testimony of hostile witness. 19. What is evident is that nothing could be elicited from her cross-examination, except confronting her with the previous statement recorded u/s 161 Cr PC, which was denied by PW 8. In absence of legal evidence, the previous statement recorded u/s 164 or 161 Cr PC cannot be used as evidence. The limited use of the statement u/s 161 Cr PC is to contradict its maker, whereas the statement recorded u/s 164 Cr PC can be used both for corroborating and contradicting the maker of such statement. When there is no legal evidence brought on record, the statement recorded u/s 164 or 161 Cr PC alone cannot be acted upon as evidence. Apparently there was nothing in the evidence of PW 8 to show that she had any illicit relation with the deceased. 20. What, therefore, follows is that the dying declaration as deposed by PW 4 relied by the trial court was not at all worthy of trust to inspire confidence of the court, and as such, no credibility could be attached to the oral testimony of PW 4 as to dying declaration. After discarding the oral dying declaration as well as the alleged relationship between the victim and wife of accused, the only circumstance remained is the conduct of the accused in handing over the dao to the police, inasmuch as, the confession of the accused before police was hit by Section 25 of the Evidence Act. Though, the dao was seized on 05.09.2013, neither the seizure list, nor the seized dao was shown to the CJM forthwith as per mandate of law, raising a doubt as to the seizure of 'dao' itself. In absence of chemical analysis of the seized weapon, there was absolutely no link evidence to connect the dao with the commission of offence. 21. What therefore crystallizes from the above evidence is that, circumstances sought to be relied by the prosecution were not proved beyond doubt, not to speak of proving the chain of evidence for leading to the conclusion consistent only with the hypothesis of the guilt of the accused. The conduct of the accused in appearing in the police station, even if assumed to be correct, that alone, is not sufficient to prove a charge of murder without anything more, and as such, prosecution evidence are found grossly inadequate to prove the charge against the appellant beyond reasonable doubt. Therefore, we are of the considered opinion that the prosecution failed to prove the guilt of the accused beyond reasonable doubt and as such, the conviction and sentence of the appellant cannot be sustained. Accordingly, the conviction and sentence of the appellant are set aside. The appeal succeeds and stands allowed. 22. The appellant be released forthwith, if not required in any other case. 23. Appreciating the assistance rendered by Ms. P. B. Bordoloi, learned Amicus Curiae, we hereby provide that she will be entitled to Rs. 7,000/- as fees, which shall be paid to her by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment. 24. Send a copy of this judgment to the Central Jail, Jorhat for release of the accused appellant immediately. Release order be issued accordingly. 25. Send back the LCR.;