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Crl. A.(J). No. 60 of 2011

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Crl. Appeal (J) No. 60 of 2011

Samar Madhua,

S/O—Sri Gopiram Madhua,

Resident of No.3, Lunhsung,

P.O.—Bishmuri,

P.S.—Bishmuri (Kokrajhar),

Dist.—Kokrajhar, B.T.C., Assam.

….Appellant

Versus

The State of Assam

…. Respondent

BEFORE

HON’BLE MR. JUSTICE P. K. SAIKIA AND

HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

For the Appellant : Mr. P. K. Roy Choudhury, Amicus Curiae

For the Respondent : Ms. S. Jahan, Addl. P.P.

Date of hearing : 01.04.2015

Date of judgment : 07.05.2015

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JUDGMENT AND ORDER (CAV)

(P. K. Saikia, J)

This appeal is directed against the judgment and order dated 06.04.2011,

passed by the learned Addl. Sessions Judge, FTC Kokrajhar in sessions Case No.

5/2010, convicting one Samar Madhua of offence u/s 302 IPC and sentencing him

to imprisonment for life and to pay a fine of Rs. 5,000/- i.d., R.I. for another 6 (six)

months for the offence aforesaid.

2. Being aggrieved by and dissatisfied with the aforesaid judgment, the

appellant, namely, Samar Madhua (herein after referred to as the accused person),

has preferred this appeal from jail citing several infirmities in the judgment under

challenge.

3. We have heard Mr. P.K. Roy Choudhury, learned Amicus Curiae appearing

for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., Assam.

4. The facts, projected by the prosecution in the FIR dated 21.08.2009 and in

subsequent trial, in short, are that on 21.08.2009, one Panja Rabha (PW 1) lodged

an FIR with the I/C, Bismuri Police Out Post alleging that his daughter Sushila

Rabha (since deceased), aged about 20 years, got married with the accused Sri

Samar Madhua few months before the incident in question. After their marriage,

they started to live as husband and wife. On 18.08.2009, at about 11 am, accused

person abused his wife (daughter of the informant, PW 1) and killed her thereafter.

5. On the basis of such an FIR, a GD Entry was made by I/C, Bismuri Police

Out Post and forwarded the FIR to the O/C, Kokrajhar Police Station for registering

a case and to take further necessary action against the culprits in accordance with

law. On the receipt of the same, O/C, Kokrajhar Police registered a case, vide

Kokrajhar P.S. Case No. 285/2009, u/s 302/34 IPC and ordered one J. Basumatary,

S.I. of police to investigate the case.

6. Being so entrusted, Sri Basumatary visited the place of occurrence, (in short

PO), conducted inquest on the dead body, sent the same to hospital for post

mortem examination, arrested the accused person, examined the persons, well

acquainted with the facts and circumstances of the case, did other things needful

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and on conclusion of investigation, IO submitted charge sheet u/s 302/34 IPC

against the accused person as well as against his farther Gopi Ram Madhua since

acquitted by the Trial Court under the judgment in question.

7. When the charge sheet was so laid before the jurisdictional Magistrate, he

committed the case to the Court of Session at Kokrajhar since the offence u/s 302

IPC is exclusively triable by the Court of Session. On receipt of the case on

commitment, the learned Sessions Judge, Kokrajhar, transferred the same to the file

of learned Addl. Session Judge, FTC, for disposal in accordance with law.

8. The learned Addl. Sessions Judge, FTC, Kokrajhar on receipt of the case on

transfer and on hearing the learned counsel for the parties, was pleased to frame

charge u/s 302/34 IPC against accused persons and charge, so framed, on being

read over and explained to accused persons, they pleaded not guilty and claimed to

be tried.

9. During trial, the prosecution has examined as many as 8 (eight) witnesses

including the informant, M/O and I/O. The statements of accused persons u/s 313

Cr.P.C. were also recorded. The accused persons pleaded that they were no way

involved with the crime in question. The present appellant further states that on the

fateful morning, he was not in his house since he had to remain away from his

house on the fateful day in order to attend some urgent work. However, on being

required, accused persons declined to adduce any evidence in defence.

10. On conclusion of trial and on hearing the arguments, advanced by the

learned counsel for the parties, learned Trial Court, while acquitting Gopi Ram

Madhua, father of the present appellant, convicted the appellant herein of offence

u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment

which has been assailed in the present appeal.

11. Mr. P.K. Roy Choudhury, learned Amicus Curiae appearing for the accused

person arduously submits that the judgment under challenge cannot be sustained

since it suffers from several infirmities of extremely serious in nature. In that

connection, it has been contended that prosecution case is entirely founded on

circumstantial evidence. Law, on the circumstantial evidence, is well settled by now.

In that connection, he relies on the decision of Hon’ble Apex Court in the case of

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Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in (1984) 4

SCC 116. The relevant part is reproduced below:---

“153:-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 & Anr. v. State of Maharashtra(') 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.”

12. He also relied on the decision of Apex Court in the case of Rumi Nath

Dutta Vs. State of Assam reported in (2013) 7 SCC 417 as well as the decision

in the case of Sabir Singh Vs. State of Punjab reported in 1993 (Supply) 3

SCC 41. The relevant part in Sabir Singh (Supra) is reproduced below:--

“Para 7:- A note of caution has also been struck regarding the role of imagination. In the case of Reg v. Hodge, it was said:

“The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.” It has been impressed that suspicion and conjecture should not take the place of legal proof. It is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path. The existence of a motive is often an enlightening factor in a

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process of presumptive reasoning in cases depending on circumstantial evidence.”

13. According to him, in the present case, the circumstances, established by

prosecution, hardly connect the accused person with crime in question since the

circumstances, established by the prosecution, do not form a chain of events

without any break anywhere leading to irresistible conclusion that the accused, and

none else, was the author of the crime, under consideration.

14. Mr. P.K. Roy Choudhury, learned Amicus Curiae has again pointed out that

as per the FIR, the deceased met her death on 18.08.2009. However, the FIR was

lodged on 21.08.2009. Thus, there was several days delay in lodging the case.

However, such delay occurring in lodging the case involving an offence as serious as

murder has not at all been explained. Non-explanation of such a delay in the case in

hand has raised a serious doubt about the authenticity of the entire prosecution

case.

15. In that context, it has been pointed out that in his evidence, I/O states that

he received the FIR on 21.08.2009 and after the receipt of the FIR, he visited the

PO and made the arrangement of conducting an inquest on the dead body through

an Executive Magistrate. Accordingly, Executive Magistrate conducted inquest on

the dead body in response to the request made by the I/O. However, the inquest

report (Ext. 3) reveals that inquest was done, not on 21.08.2009 but on 20.08.2009

instead.

16. How the Executive Magistrate could conduct inquest on the dead body on

20.08.2009 when the I/O made request to the concern authority for sending an

Executive Magistrate to conduct inquest on the dead body only on 21.08.2009

remains totally unexplained. Such a state of affair again raises grave doubt not only

about the authenticity of the claim of the I/O that he made requisition for detailing

an Executive Magistrate to conduct inquest on the dead body but also on the

veracity of the inquest report as well, which was evidently prepared as early as

20.08.2009.

17. Referring to the evidence of Doctor, it has been stated that in his evidence in

chief, the Doctor (PW 7) states that he conducted autopsy on 19.08.2009. However,

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in his cross examination, he states that he conducted autopsy not on 19.08.2009,

but on 21.08.2009 instead. Such inconsistency on a point as vital as date of

conducting autopsy on the body of the deceased, in turn, adds more and more

suspicion to the prosecution case.

18. Learned Amicus Curiae further submits that there are some major

contradictions between the evidence of non official witnesses and the evidence of

the Doctor as regards the cause of death of the wife of the accused. Though the

Doctor had concluded that the death was homicidal in nature, some of the non

official witnesses claim that on their arrival at the PO, they learnt that the wife of

the accused died after consuming poison.

19. According to learned Amicus Curiae, it is established law that when there is

contradiction between the Medical evidence and the evidence, rendered by ocular

witness (es) regarding cause of injury, death etc., the version of ocular witnesses

needs to be accepted if same is found reliable. In that context, our attention has

been drawn to the decision of Apex Court in the case of Gajoo vs State of

Uttarakhand, reported in (2012) 9 SCC 532. The relevant part is reproduced

below:---

“18. We have also noticed that there is no variation between the medical evidence and the ocular evidence, and once they are co-jointly read, it does not falsify either the statement of the witnesses, PW2 and PW3 or the Post-Mortem Report, Ext. Ka-10. In fact, both of them must be read as complimentary to each other. Even if for the sake of argument we assume that there is some variation, still, it would be so immaterial and inconsequential that it would not give any benefit to the accused. It is a settled principle by a series of decisions of this Court that while appreciating the variation between the medical evidence and ocular evidence, primacy is given to the oral evidence of the witnesses. Reference can be made to the judgments of this Court in the case of Kapildeo Mandal and Ors. v. State of Bihar [(2008) 16 SCC 99], State of U.P. v. Krishan Gopal [(1998) 4 SCC 302], Bhajan Lal @ Harbhajan Singh & Ors. v. State of Haryana [(2011) 7 SCC 421].”

20. It is also the case of learned Amicus Curiae that although it has been alleged

that the accused killed his wife subjecting her to brutal assault, the I/O could not

seize any weapon of offence, allegedly used in inflicting the wounds on the

deceased aforementioned. Inability of I/O to seize weapon of offence, purportedly

used in committing the crime in question, has again greatly demolished the very

basis of prosecution case.

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21. Assailing the prosecution case more and more, learned Amicus Curiae again

submits that in a case based on circumstantial evidence, motive plays a pivotal role

although motive may not be that important in a case based on direct evidence. The

case under consideration is entirely based on circumstantial evidence and as such,

the prosecution was under enormous obligation to find out the motive of the

accused persons in committing the crime in question.

22. However, in the case aforesaid, motive of the accused person in committing

such a crime has not been established which to a great extent shattered the very

basis of prosecution case itself, more so, when the prosecution case is also found

suffering from some other serious infirmities. He, therefore, prays to this Court to

acquit the accused person and for setting aside the judgment of the Trial Court.

23. However, Ms. S. Jahan, learned Addl. P.P. strongly contends that the

prosecution has successfully proved the charge u/s 302 IPC against the accused

person beyond all reasonable doubt and in order to bring home such a contention,

she claims that though the prosecution case is entirely premised on circumstantial

evidence, prosecution was successful in establishing several circumstances of

enormously incriminating nature and such circumstances together lead anyone to an

irresistible conclusion that the accused, and none else, was the person responsible

for killing his wife on or about 18.08.2009.

24. In support of such contention, it has been stated that in their evidence, PW

1, PW 2, PW 3 and PW 4 categorically state that when they arrived at the PO, they

found injury marks on the body of the deceased. They also noticed blood oozing out

from the mouth and nostril of wife of the accused person. Such evidence finds

corroboration from the inquest report, prepared by the I/O during the course of

investigation, which was proved as Ext. 3.

25. It has again been contended that the Doctor who conducted post mortem

examination on the deceased noticed injury marks on different parts of the body of

the deceased. More importantly, he also noticed one grievous injury on the skull

which, according to him, occasioned the death of the deceased on the morning in

question.

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26. According to learned Addl. P.P., there is evidence on record to show that the

deceased and the accused lived separately from his other family members in his

house during the time under consideration. There is nothing on record to show that

on the fateful morning or the night which preceded the eventful day, there was any

person, other than the accused and the deceased, in their household. In other

words, all evidence on record suggests that during the time under consideration,

the accused and the deceased were alone in the ill fated household.

27. Such revelation in absence of any explanation from the side of accused

person, again demonstrates that none except accused was the person responsible

for killing his wife on or about 18.08.2009. Since there was no explanation from the

side of accused person, how his wife met her death on or about 18.08.2009 despite

their house being not occupied by any other person or despite there being no

evidence of 3rd party committing the crime in question, it is obligatory on the part of

the Court to hold the accused responsible with the crime he was charged with.

28. The accused fled the scene soon after the incident for which he could not be

arrested immediately after the incident in question which is why he was arrested by

the police after 2 (two) days of aforesaid incident. The abscondance of accused,

soon after the incident aforementioned is one more grounds which again shows that

it was the accused, and none else, who killed his wife on or about 18.08.2009.

29. It has been stated that all the incriminating circumstances were notified to

the accused person but he did not offer reasonable explanation to such

incriminating circumstances which stared direct at him. Such conduct on the part of

accused person in giving evasive answer to the questions put to him during his

examination u/s 313 CrPC, provided the prosecution the missing link, if any, in its

case.

30. In support of such contention, learned Addl. P.P., has relied on the decision

rendered by The Apex Court in the case of State of Maharashtra Vs. Suresh

reported in (2000) 1 SCC 471 as well as in Rumi Nath Dutta Vs. State of

Assam reported in (2013) 7 SCC 417. The relevant part in Rumi Nath Dutta

(Supra) is reproduced below:-

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“Para 21: At this juncture, as mentioned earlier we proceed to advert to the issue pertaining to falsehood. In this context we may fruitfully refer to the authority in State of Maharashtra v. Suresh, wherein it has been held that a false answer offered by the accused when his attention is drawn to the circumstances, it renders the circumstances to be of inculpating nature. In such a situation a false answer can also be counted as providing “a missing link” for completing the chain. In the case at hand, the factum of recovery thorough the witness has been proven that the accused persons had led to recovery. When it was put to them they had given an answer in the negative in a nonchalant manner. The incriminating materials were concealed and they were discovered being led by the accused persons.”

31. In view of above, learned Addl. P.P., urges this court to dismiss the present

appeal on affirming the judgment under challenge.

32. We have heard the rival submissions having regard to the evidence on

record. Before we proceed further, we need to consider the evidence of PW 7, Dr.

R.C Debnath, who conducted the autopsy on the body of the deceased at Kokrajhar

Civil Hospital on 19.08.2009. According to him, on the date aforesaid, he conducted

post mortem examination on a female body aged about 20 years and found the

following:--

“An average built, dark coloured female, dead body, aged about 21 years, wearing a black Ganjee type shirt and a lungi type Mekhela. She has black hair 2 ½ ft long. Mouth is open. Tongue is protruded. Body is partially decomposed. Multiple marks of injuries-present over both hands and chest back side and abdomen. A black spot on head on back side. On dissection: there is fracture of 2” x 2” size over skull on the back side of head occipital region with collection of blood. Liver is rupture. There is haemoperitium.

Opinion:- In my opinion death is due to shock and haemorrhage due to head injury as a result of impact by a blunt object which is ante-mortem in nature. Ext. 1 is the P.M. report, Ext 1(1) is my signature and Ext 1(2) is the signature of Joint Director.”

33. In his cross examination, PW 7 deposes that he conducted autopsy on the

dead body not on 19.08.2009 but on 21.08.2009. The evidence of Doctor also

reveals that when he examined the dead body, he found it in a partly decomposed

condition. The evidence of Doctor, however, reveals that the deceased died a

homicidal death sometime before his conducting autopsy on the dead body on

19.08.2009 (21.08.2009 ?). He also opined that the deceased died on sustaining

injuries on her head which was caused by blunt object.

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34. So situated, let us consider the testimonies of witnesses, more particularly,

the evidence of PW 1, Sri Panja Rabha, and PW 4, Smti. Saleswari Rabha, father

and mother of the deceased respectively. According to PW 1, his deceased daughter

was married to the accused person sometime in the month of April/May 2009. One

day, he got information that his daughter died an unnatural death. He immediately

went to the house of accused person.

35. His wife too went to the house of the accused person but she preceded him.

On arriving at the PO, they found the body of the deceased was covered with a

cloth and by removing the same, he found marks of injuries on several parts of her

body which were seemingly caused by blunt object. He heard from the people

gathered at the PO that the accused used to beat his wife quite regularly.

36. Thereafter, he lodged an FIR with I/C Bishumuri Petrol post on 21.08.2009.

In due course, police took the dead body for taking further necessary action.

According to PW 1, Gopiram Madhua, father of the accused, lived separately from

his son during the time under consideration. In his cross examination, he admitted

that the accused came to his house when he and his wife were still in the ill fated

household. The suggestion that his daughter died of taking poison was denied by

him.

37. PW 4, Smti. Saleswari Rabha, deposes in the line, very similar to the

testimonies, rendered by PW 1 since she is found saying that one day at about 4 pm

she got an information that her daughter was no more. Accordingly, she

immediately rushed to the house of the accused person taking Panja and Ranjit

Rabha with her. On arriving at the house of the accused person, she found her

daughter being covered with a cloth and by removing the same, she found her

daughter dead with injuries on her body. She also noticed blood oozing out from the

nostril and mouth.

38. According to her, her son-in-law was not in his house but he was

apprehended next day. In her cross-examination, she further states that on several

occasions her daughter left her matrimonial house on being beaten by her husband.

PW 3, Sri Sukur Singh Rabha, had rendered evidence which is very identical to the

evidence rendered by PW 1 and PW 4. PW 3 further states that one day, he found

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the accused and the deceased at the market. He also saw the accused assaulting

his wife.

39. He, however, persuaded the accused person not to assault his wife and

advised him to return home with his wife. According to him, one day, after coming

to the house of the accused person, he asked the father of the accused person as to

how the deceased met her death. On being so inquired, father of the accused

person told him that his son, the present accused, habitually assaulted his wife

although he could not found the reason of such assault inasmuch as he found his

daughter-in-law to be a nice girl.

40. PW 5, Sri Jitu Tudu and PW 6, Sri Bishnu Mense, who are related to the

accused person, depose that one day, on coming to know that the wife of the

accused person met her death, they came to the PO and learnt from the people

gathered there that the deceased died after consuming poison.

41. In his evidence, PW 8, Sri J. Basumatary states that on 21.08.2009, he was

working as I/C, Bismuri Police Patrol Post. On that day, he received an FIR from PW

1. On receipt of the same, he made a GD Entry and forwarded the FIR to the O/C,

Kokrajhar P.S., for doing further needful. He proved the said FIR as Ext. 2. Since he

was entrusted with the investigation of the case, he visited the PO during the course

of investigation, also requisitioned the service of an Executive Magistrate to conduct

inquest on the dead body.

42. On being so required, the Executive Magistrate conducted an inquest on the

dead body and prepared a report in that connection, which he proved as Ext. 3.

Thereafter, he sent the dead body to hospital for post mortem examination and did

other things needful and on conclusion of investigation, he submitted charge sheet

u/s 302/34 IPC against the appellant herein as well as his father.

43. In his cross-examination, PW 8 states that during investigation, PW 3 did not

tell him that one day, he found the deceased and the accused at the market and

also found the accused person assaulting his wife. In his cross examination he

admits that Ext. 3, inquest report, shows that the inquest was done on the body of

the deceased on 20.08.2009.

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44. Above being the evidence on record, let us see how far such evidence makes

out the charge, leveled against the accused person. We have carefully considered

the evidence on record having regard to the judgment under challenge as well as

arguments, advanced by learned counsel for the parties. A careful perusal of the

testimonies of PW 1 and PW 2 reveal that on getting the information about the

death of their daughter, they rushed to the house of accused person and found

their daughter lying dead in the house of accused person. Thereafter, PW 1 (father

of the deceased), lodged the FIR with police on 21.08.2009.

45. On perusal of the FIR, it is found that the incident in question occurred on

18.08.2009 but the FIR was lodged with police only on 21.08.2009. Therefore, there

was delay of 3 days in lodging the FIR in the case aforementioned. It is a settled

law that the delay in lodging the case may not always be fatal. But to save the

prosecution case from exposing the charge of being concocted one for delayed

lodging of the case, the informant needs to explain properly the reason which

caused delay in setting criminal law in motion.

46. Coming back to our case, we have already found that there was delay of 3

days in lodging the case involving an offence as serious as murder. However, not a

single word was stated as to why such a delay occurred in lodging the FIR in the

case stated above. In the facts and circumstances of the case in hand, in our

opinion, such delay requires the court to hold that everything was not hunky dory

on the part of informant in not lodging the case soon after the commission of crime

in question.

47. We may note here that in his evidence, I/O (PW 8) states that he got

information about the incident in question for the first time only on 21.08.2009 and

thereafter, on the receipt of the FIR, he made a GD Entry and forwarded the same

to the O/C, Kokrajhar Police Station for registering a case and for doing further

needful. In due course, he was entrusted with the investigation. It is also in his

evidence that on being entrusted with the investigation on 21.08.2009, he sent a

requisition to the concern authority for detailing an Executive Magistrate to conduct

inquest on the dead body and in due course, he obtained the service of an

Executive Magistrate to conduct inquest on the dead body.

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48. The evidence of PW 8 further reveals that on being so required, the

Executive Magistrate conducted inquest on the dead body and prepared a report in

that connection which he proved as Ext 3. We have perused the Ext. 3, inquest

report. A perusal of the Ext 3 reveals that inquest was done, not on 21.08.2009 as

claimed by PW 8 but, it was done only on 20.08.2009 meaning thereby that inquest

was done well before the lodging of the FIR by the informant on 21.08.2009. The

conducting of inquest by Executive Magistrate even before lodging of the FIR again

shows that the prosecution case cannot be believed without a pinch of salt.

49. We have found that in his cross examination, the Doctor claims that he

conducted post mortem examination on 21.08.2009. Such evidence finds supports

from post mortem examination report which was proved as Ext. 1. However, in his

examination-in-chief, he also claims that he conducted post mortem examination,

not on 21.08.2009 but on 19.08.2009. Such evidence of Doctor makes his entire

testimony, including his opinion as to the cause of death of deceased enormously

doubtful.

50. One may notice here that in their evidence, PW 5 and PW 6 had stated that

on arriving at the PO, they heard the people gathered there saying that the

deceased died of consuming poison. It has rightly been contended by the learned

Amicus Curiae that when those PWs were not declared hostile, it needs to be

concluded that those two PWs rendered statements before the I/O during the

course of investigation which is very similar to the evidences rendered by PW 5 and

PW 6 before the Court during trial.

51. In the face of such revelation, there cannot be any escape from the

conclusion that the I/O was duty bound to send the viscera of the deceased to the

Forensic Expert to ascertain if the doubt of people regarding the deceased

committing suicide having consumed poison is true. But same was not done, and

that too, without assaigning any reason whatsoever. Such a failure on the part of

I/O again shows that the contention that the deceased died having consumed

poison cannot be ruled out.

52. As pointed out by learned Amicus Curiae, the evidence of Doctor can be

given preference over the testimonies of ocular witnesses only if the evidence of

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Doctor is found trustworthy. Unfortunately, our forgoing discussion firmly reveals

that the evidence of the Doctor become very suspicious since he is found giving

contradictory evidence on a point as vital as time of conducting post mortem

examination on the dead body and as such, no reliance whatsoever can be placed

on the evidence of Doctor regarding the cause of death of the deceased.

53. The fact that the Executive Magistrate conducted inquest on the dead body

on 20.08.2009 shows that the Executive Magistrate conducted inquest on the body

of the deceased even before lodging of the FIR by the informant on 21.08.2009.

Such serious infirmity in the prosecution case coupled with the fact that there was

delay of 3 days in lodging the FIR in regard to incident under consideration despite

informant’s daughter having died on 18.08.2009 only serve to show that

prosecution case cannot be accepted without good deal of suspicion.

54. It may also be noticed that some witnesses, such as, PW 1, PW 2 and PW 4

deposed that they heard that the accused assaulted his wife. They also claim that

they came to know about such incident from other persons. However, those persons

who reported about the deceased being assaulted by the accused person habitually

were not made witnesses in the case in hand which only makes the evidence of

those witnesses that they heard that the victim being assaulted by the accused

person a hearsay evidence on which no reliance can be placed.

55. Though in his evidence, PW 3 claims that one day, he saw the accused

assaulting his wife at market place and although he claims that he persuaded the

accused not to assault his wife in a public place and requested the parties to go

home, yet, he did not divulge such an important episode to the I/O while he was

being examined u/s 161 CrPC during the course of investigation. Omission to state

such vital information to the I/O during investigation again makes his evidence

doubtful since his evidence too suffers from vice what is commonly called as

contradiction.

56. We have found that incident in question was reported to PW 1 and PW 2 by

some persons for which they rushed to the house of the accused person and found

their daughter lying dead in the house of the accused person. However, persons

from whom they came to know about the incident was not identified by I/O during

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investigation requiring this court to view the prosecution case with suspicion since

non identification and non examination of those persons require this court to draw a

presumption as contemplated in Illustration 114 (g) of the Evidence Act.

57. Learned Addl. P.P., submits that the accused had absconded soon after the

alleged incident for which he could be arrested 2 (two) days after the incident under

consideration. However, such contention is not fully supported by evidence on

record since PW 1 found the accused in his house while PW 1 and PW 2 were still in

the ill fated household. Therefore, the contention that the accused has absconded

soon after the incident is found not wholly reliable.

58. We have already found that I/O has submitted charge sheet u/s 302/34 IPC

against the accused person and his father. Both the accused persons stood charged

of offence u/s 302/34 IPC. However, father of the present accused person was

acquitted by the Trial Court for want of evidence. The acquittal of father of the

present accused person, in the facts and circumstances, detailed here-in-before

clearly shows that judgment under challenge is susceptible to charge of un-

tenability which again further fortify our conclusion that prosecution could not prove

the case beyond all reasonable doubt.

59. Our forgoing discussion reveals the following circumstances: ---

(i) The victim was the wife of accused person, (ii) she was married

by the accused person few months before her death, (iii) she died on

or about 18.08.2009, (iv) her death was unnatural, (v) she died in

the house of accused person, (vi) during the time under

consideration, the accused with his wife and his other family

members lived in same household and (vii) the accused was arrested

during the course of investigation although charge of accused

absconding has not been proved as it is found from our forgoing

discussion.

60. We have already found that the case in hand is a case which is based

entirely on circumstantial evidence where prosecution is required to prove its case

by establishing a chain of events unbreakable anywhere leading to sole and lone

conclusion that the accused and none else was the author of the crime in question.

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Crl. A.(J). No. 60 of 2011

61. The forgoing circumstances though raised a serious doubt about the

complicity of the accused person in the crime in question, yet, such doubt is not

enough to conclude conclusively that the accused, and none else, was the person

responsible for committing the crime in question as required under the law.

62. In this connection, it may be stated that there is a huge gap between the

proof and suspicion since suspicion cannot take place of proof. Unfortunately, in our

present case, the prosecution could not bridge the gap between suspicion and proof

requiring this court to hold that prosecution has not been able to prove the case

beyond all reasonable doubt.

63. In view of our forgoing discussion, prosecution could not establish a chain of

events unbreakable anywhere although circumstances, proved, raise very serious

suspicion about the complicity of the accused person in the crime in question.

64. Resultantly, the judgment under challenge is found unsustainable in law and

same is, therefore, liable to be quashed and set aside.

65. Consequently, appeal is allowed and judgment under challenge is quashed

and set aside and accused is acquitted of offence u/s 302 IPC and he is ordered to

be released, if he not required in connection with any other case.

66. Return the LCR forthwith.

67. We deeply appreciate the assistance rendered by Mr. P. K. Roy Choudhury,

learned Amicus Curiae in disposing the present appeal. We, therefore, direct the

State to pay him an amount of Rs. 7,000/- as being his professional fee. Same

needs to be paid within a period of 3 months from the date of receipt of a certified

copy of this judgment.

JUDGE JUDGE

Rupam

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25. We have heard the rival submissions having regard to the evidence on

record. Before we proceed further, we need to consider the evidence of PW 7, Dr.

R.C Debnath, who conducted the autopsy on the body of the deceased at Kokrajhar

Civil Hospital on 19.08.2009. According to him, on the date aforesaid, he conducted

autopsy on a female body aged about 20 years and found the following:--

“An average built, dark coloured female, dead body, aged about 21 years, wearing a black Ganjee type shirt and a lungi type Mekhela. She has black hair 2 ½ ft long. Mouth is open. Tongue is protruded. Body is partially decomposed. Multiple marks of injuries-present over both hands and chest back side and abdomen. A black spot on head on back side. On dissection: there is fracture of 2” x 2” size over skull on the back side of head occipital region with collection of blood. Liver is rupture. There is haemoperitium.

Opinion:- In my opinion death is due to shock and haemorrhage due to head injury as a result of impact by a blunt object which is ante-mortem in nature. Ext. 1 is the P.M. report, Ext 1(1) is my signature and Ext 1(2) is the signature of Joint Director.”

26. In his cross examination, PW 7 deposes that he conducted autopsy on the

dead body not on 19.08.2009 but on 21.08.2009. The evidence of Doctor also

reveals that when he examined the dead body, he found it in a partly decomposed

condition. The evidence of Doctor, however, reveals that the deceased died a

homicidal death sometime before his examination of the dead body on 19.08.2009

(21.08.2009 ?) on sustaining injuries on her head which was caused by blunt object.

27. So situated, let us consider the evidences of witnesses, more particularly,

the evidence of PW 1, Sri Panja Rabha, and PW 4, Smti. Saleswari Rabha father

and mother of the deceased respectively. According to PW 1, his deceased daughter

was married to the accused person some time back in the month of April/May 2009.

One day, he got information that his daughter died an unnatural death. He

immediately went to the house of accused person.

28. His wife too went to the house of the accused person but she preceded him.

On arriving at the PO, they found the body of the deceased was covered with a

cloth and by removing the same, he found marks of injuries on several parts of her

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Crl. A.(J). No. 60 of 2011

body which were seemingly caused by blunt object. He heard from the people

gathered at the PO that the accused used to beat his wife quite regularly.

29. Thereafter, he lodged an FIR with I/C Bishumuri Petrol post on 21.08.2009.

In due course of time, police took the dead body for taking further necessary action.

According to PW 1, Gopiram Madhua, father of the accused, lives separately from

his son. In his cross examination, he admitted that the accused came to his house

when he and his wife was still in the ill fated household. The suggestion that his

daughter died of taking poison was denied by him.

30. PW 4, Smti. Saleswari Rabha, deposes on the line, very similar to the

testimonies, rendered by PW 1 since she is found saying that one day at about 4

p.m. she got an information that her daughter was no more. Accordingly, she

immediately rushed to the house of the accused person taking Panja and Ranjit

Rabha with her. On arriving at the house of the accused person, she found her

daughter being covered with a cloth and by removing the same, she found her

daughter dead with injuries on her body. She also noticed blood oozing out from the

nostril and mouth.

31. According to her, her son-in-law was not in his house but he was

apprehended next day. In her cross-examination, she further states that on several

occasions her daughter left her matrimonial house on being beaten by her husband.

PW 3, Sri Sukur Singh Rabha, had rendered evidence which is very identical to the

evidence rendered by PW 1 and PW 4. PW 3 further states that one day, he found

the accused and the deceased at market. He also found that the accused assaulting

his wife.

32. He, however, persuaded the accused person not to assault his wife and

advised him to return home with his wife. According to him, one day, after coming

to the house of the accused person, he asked the father of the accused person as to

how the deceased met her death. On being so inquired, father of the accused

person told him that his son, the present accused, habitually assaulted his wife

although he could not found the reason of such assault inasmuch as, he found his

daughter-in-law to be a nice girl.

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Crl. A.(J). No. 60 of 2011

33. PW 5, Sri Jitu Tudu and PW 6, Sri Bishnu Mense, who are related to the

accused person, depose that one day, on coming to know that the wife of the

accused person met her death, they came to the PO and learnt from the people

gathered there that the deceased died after consuming poison.

34. In his evidence, PW 8, Sri J. Basumatary states that on 21.08.2009, he was

working as I/C, Bismuri Police Patrol Post. On that day, he received an FIR from PW

1. On receipt of the same, he made a GD Entry and forwarded the FIR to the O/C,

Kokrajhar P.S., for doing further needful. He proved the said FIR as Ext. 2. Since he

was entrusted with the investigation of the case, he visited the PO during the course

of investigation, also requisitioned the service of an Executive Magistrate to conduct

inquest on the dead body.

34. On being so required, the Executive Magistrate conducted an inquest on the

dead body and prepared a report in that connection, which he proved as Ext. 3.

Thereafter, he sent the dead body to hospital for post mortem examination and did

other things needful and on conclusion of investigation, he submitted charge sheet

u/s 302/34 IPC against the accused person herein as well as his father.

35. In his cross-examination, he states that PW 3 did not tell him during

investigation that one day, he found the deceased and accused at market and also

found the accused person assaulting his wife. Ext. 3, inquest report, reveals that the

inquest was done on the body of the deceased on 20.08.2009.

36. Above being the evidence on record, let us see how far such evidence makes

out the charge, leveled against the accused person. It is worth noting here that

though PWs, particularly, PW 1, PW 2, PW 3 and PW 4 were subjected to detailed

cross examination, yet, nothing did emerge there-from to conclude that what they

have stated before the court during trial cannot be accepted for any reason

whatsoever.

37. On reading the evidence of aforesaid PWs, particularly the evidence of PW 1,

PW 2 PW 3 and PW 4, we have found that prosecution has proved the following

circumstances beyond all reasonable doubt.

(i) The accused had married the deceased sometime in April/May 2009,

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Crl. A.(J). No. 60 of 2011

(ii) The relationship between the accused and the deceased was far from cordial

during the time of consideration and such evidence is found evident from the

testimonies of PW 1, PW 2 and PW 4,

(iii) All the non official witnesses saw the injury marks on the body of the deceased

on their arrival at the PO.

(iv) Some of the PWs , viz., PW 1, PW 2, PW 3 and PW 4 also noticed blood oozing

out from the nostrils and mouth of the deceased.

(v) The inquest done on the dead body also reveals that deceased sustained several

injuries before her death.

(vi) The Doctor who conducted autopsy on the dead body firmly opined that death

was homicidal in nature.

(vii) Though PW 5 and PW 6, who happen to be the relatives of the accused

person, claim that deceased died of taking poison, such evidence is found to be

without any substance.

(viii) During the time under consideration the accused and the deceased live

separately from his other family members.

(ix) There was no evidence on record to show that any person other than the

accused and the deceased occupied the household in question on or about

18.09.2009.

38. When all these circumstances are read together, it would appear more than

clear that those circumstances form a chain of events, without any break anywhere,

which leads to irresistible conclusion that the accused person, and none else, had

committed the crime under consideration.

39. On the perusal of the record it is found that the accused fled the scene soon

after the incident in question for which he was required to be arrested by the I/O 2

(two) days after the incident. The fleeing of the accused from the scene for a

23

Crl. A.(J). No. 60 of 2011

considerable period after the incident in question strongly suggests that the accused

had a role which resulted in homicidal death of his wife.

40. It may be noticed here that all the incriminating circumstances which stared

direct at the accused person, were notified that the accused while he was being

examined u/s 313 CrPC. But instead of giving reasonable explanations to those

incriminating circumstances, he gave evasive replies.

41. It is a settled law if the accused fails to explain the incriminating

circumstances while such circumstances are brought to his notice while being

examined u/s 313 Cr.P.C., such failure may provide the prosecution side missing link

if any, in the prosecution case.

42. In our considered view, since the accused did not explained some very

incriminating circumstances having serious adverse implications on the defence plea

of innocence, it needs to be concluded that the accused could not reply those

incriminating circumstances appearing against him since he was clearly involved

with the crime in question.

43. It may be stated that the Doctor who conducted autopsy on the dead body

on 21.08.2009, found the body in semi decomposed condition. Though he did not

give opinion regarding the time of death of the deceased, yet, it may be concluded

that the victim died long before the Doctor’s conducting autopsy on the dead body.

This clearly suggests that the deceased might have died on or around 18.08.2009.

44. But the averments made in the FIR reveals that the death of the deceased

was communicated to the parents only on 21.08.2009. Such extremely unnatural

conduct on the part of the accused person does not augur well to advance the plea

of innocence of the accused person. Rather it provides one more seal of approval to

the clam if the prosecution that the accused had assaulted and killed his wife on or

around 18.08.2009.

45. We have found that the relationship between the deceased and the accused

person was far from cordial at all the material points of time. The evidence of

several PWs including PW 3, who learnt from father of the accused, shows that the

accused habitually ill-treated his wife. Such evidence, rendered by PW 3, remains

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Crl. A.(J). No. 60 of 2011

without being challenged. Such unchallenged evidence also shows the motive of the

accused in liquidating the life of his wife.

46. We may also note that PW 3 claims that one day, he met the accused and

the deceased at a market. He also saw the accused assaulting his wife. Though PW

3 did not disclosed such episodes to the IO during investigation, yet, in our opinion,

such omission, in the facts and circumstances on the case under consideration,

cannot be regarded as contradictions as contemplated in sec 162 Cr.P.C. Such

revelation again shows the motive of the accused in killing his wife.

47. Those circumstances in our considered opinion, fortify more and more the

claim of prosecution that the accused, and none else, was the person responsible

for killing his wife on or about 18.08.2009.

48. We may noticed here the learned Amicus Curiae submits that prosecution

should not be believed for the reason aforementioned, however, on considering the

evidence on record we find that none of the allegation aforementioned was based

on facts on record and as such, such an allegation needs to be rejected for the

same reason the decision relied on by the learned Amicus Curiae are found

inapplicable to the case in hand.

49. For the reason aforementioned we are of the opinion that prosecution has

successfully proved the charge u/s 302 IPC against the accused person and as such,

we find no reason to interfere with the judgment under challenge.

50. Accordingly, the present appeal is dismissed being found devoid of merit.

JUDGE JUDGE

Rupam

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26

Crl. A.(J). No. 60 of 2011

New ly added portion dictated on 21.04.2015.

Mr. P.K. Roy Choudhury, learned Amicus Curiae has pointed out that as per

the FIR, the deceased met her death on 18.08.2009. However, the FIR was lodged

on 21.08.2009. Thus, there was several days delay in lodging the case. However,

such delay occurring in lodging the case involving an offence as serious as murder

has not been at all been explained. Non-explanation of such a delay in the case in

hand has raised a serious doubt about the authenticity of the entire prosecution

case.

Referring to the evidence of Doctor, it has been stated that in his evidence in

chief, the Doctor (PW 7) states that he conducted autopsy on 19.08.2009. However,

in his cross examination, he states that he conducted autopsy not on 19.08.2009,

but on 21.08.2009 instead. Such inconsistency on a point as vital as date of

conducting autopsy on the body of the deceased in turn makes the evidence of PW

7 very suspicious.

In that context, it has been pointed out that in his evidence, I/O states that

he received the FIR on 21.08.2009 and after the receipt of the FIR, he visited the

PO and made the arrangement of conducting an inquest on the dead body through

an Executive Magistrate. Accordingly, Executive Magistrate conducted inquest on

the dead body in response to the request made by the I/O. However, the inquest

report (Ext. 3) reveals that inquest was done, not on 21.08.2009 but on 20.08.2009

instead.

How could the Executive Magistrate conduct inquest on the dead body on

20.08.2009 when the I/O made request to the concern authority for sending an

Executive Magistrate to conduct inquest on the dead body on 21.08.2009 remains

totally unexplained. Such a state of affairs raise grave doubt not only about the

authenticity of the claim of the I/O that he made requisition for detailing an

Executive Magistrate who conduct inquest on the dead body but also on the veracity

of the inquest report as well which was evidently prepared as early as 20.08.2009.

According to learned Amicus Curiae, it is in the evidence of PW 5 and PW 6

that when they arrived at the PO, they heard people saying that deceased died of

consuming poison. Since those two witnesses were not declared hostile it can be

27

Crl. A.(J). No. 60 of 2011

safely presumed that such a statement was also made to the I/O when the later

examined him during the course of investigation. Such a state of affair again only

requires the I/O to send the vicera of the deceased to Forensic Expert to rule out

the possibility of deceased dying on consuming poison.

Unfortunately, same was not done which again throws the prosecution case

to one more maze of suspicion. Equally unfortunately, it becomes one more

testimony of prosecution case not being proved beyond all reasonable doubt, since

it makes an already doubtful testimony of Doctor more and more unreliable. On all

those counts, learned Amicus Curiae submit this court to acquit the accused person

giving him the benefit of doubt on setting aside the judgment under challenge.

We have carefully considered the evidence on record having regard to the

judgment under challenge as well as argument advanced by learned counsel for the

parties. A careful perusal of the evidence of PW 1 and PW 2 reveals that on getting

the information about the death of their daughter, they rushed to the house of

accused person and found their daughter lying dead in the house of accused

person. Thereafter, PW 1 (father of the deceased), lodged the FIR with police on

21.08.2009.

The statement in the FIR shows that the incident in question occurred on

18.08.2009 but the FIR was lodged on 21.08.2009. Therefore, there is a delay of 3

days in lodging the FIR in the case aforementioned. It may be noticed that when

the Doctor conducted autopsy on the dead body, he found the dead body in a partly

decomposed condition. The incident in question took place in later part of

September, 2009 meaning thereby that the person must have died well before the

Medical Officer conducting post mortem examination on the dead body aforesaid. It

strongly suggests that FIR was lodged after long after the incident in question had

taken place.

It is a settled law that the delay in lodging the case may not always be

fatal. But to save the prosecution case from exposing the charge of being concocted

one for delayed lodging of the case, the informant needs to explain the reason

which caused delay in setting criminal law in motion.

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Crl. A.(J). No. 60 of 2011

Coming back to our case, we have already found that there was delay of 3

days in lodging the case involving an offence as serious as murder. However, not a

single word was stated as to why such a delay occurred in lodging the FIR in the

case stated above. In the facts and circumstances of the case at hand, in our

opinion, such delay requires the court to hold that everything was not hunky dory in

informant not lodging the case soon after the commission of crime in question.

We may note here that that in his evidence, I/O (PW 8) stated that he got

information about the incident in question for the first time only on 21.08.2009 and

thereafter, on the receipt of the FIR, he made a GD Entry and forwarded the same

to the O/C, Kokrajhar Police Station for doing further needful. In due course, he was

entrusted with the investigation. It is also in his evidence that on being entrusted

with the investigation on 21.08.2009, he sent a requisition to the concern authority

for detailing an Executive Magistrate to conduct inquest on the dead body and in

due course he obtained the service of an Executive Magistrate to conduct inquest on

the dead body

The evidence of PW 8 further reveals that on being required, the Executive

Magistrate conducted inquest on the dead body and prepared a report in that

connection which he proved as Ext 3. We have perused the Ext. 3, inquest report. A

perusal of the Ext 3 reveals that inquest was done, not on 21.08.2009, but, it was

done only on 20.08.2009 meaning thereby that inquest was done well before the

lodging of the FIR by the informant on 21.08.2009. The conduct of inquest by

Executive Magistrate even before lodging of the FIR again shows that the

prosecution case cannot be believed without a large grain of salt.

We have found that in his cross examination, the Doctor claims that he

conducted post mortem examination on 21.08.2009. Such evidence finds supports

from post mortem examination report which was proved as Ext. 1. However, in his

examination-in-chief, he also claims that he conducted post mortem examination,

not on 21.08.2009 but on 19.08.2009. Such evidence of Doctor makes his entire

testimonies, including his opinion regarding the death of deceased enormously

doubtful.

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Crl. A.(J). No. 60 of 2011

One may noticed here that in their evidence, PW 5 and PW 6 had stated that

on arriving at the PO, they heard the people gathered at such place saying that the

deceased died of consuming poison. It has rightly been contended by the learned

Amicus Curiae that when those PWs were not declared hostile, it needs to be

concluded that those two PWs rendered such a statement before the I/O during the

course of investigation.

In the face of such revelation there cannot be any escape from the

conclusion that the I/O was duty bound to send the viscera of the deceased to the

Forensic Expert to ascertain if the doubt of people regarding the deceased

committing suicide having consume poison is true. But same was not done and that

too without assaigning any reason whatsoever. Such a failure on the part of I/O

again shows that the contention that deceased died having consumed poison cannot

be ruled out.

As pointed out by learned Amicus Curiae, the evidence of Doctor can be

given preference over the testimonies of ocular witnesses only if the evidence of

Doctor is found trustworthy. Unfortunately, our forgoing discussion firmly reveals

that the evidence of the Doctor become very suspicious since he is found giving

contradictory evidence on a point as vital as time of conducting post mortem

examination and as such, no reliance whatsoever can be placed on the evidence of

Doctor. The fact that the Executive Magistrate conducted inquest on the dead body

even before lodging of the FIR by the informant on 21.08.2009 and the fact that

that was a delay of 3 days in lodging the FIR in regard to incident under

consideration despite informant’s daughter died on 18.08.2009 makes such a

conclusion inevitable.

It may also be noticed that some witnesses such as PW 1, PW 2 and PW 4

depose that they heard that the accused assaulted his wife . They also claim that

they came to know about such incident from other persons. However, those persons

were not made witnesses in the case in hand which only make the evidence of

those witnesses that they heard victim being assaulted by the accused person only

a hearsay one no reliance can be placed.

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Crl. A.(J). No. 60 of 2011

Though in his evidence, PW 2 claims that one day, he saw the accused

assaulting his wife at market place and although he claims that he persuaded the

accused not to assault his wife in a public place and requested the parties to go

home, yet, he did not divulge such an important episode to the I/O while he was

being examined u/s 161 CrPC during the course of investigation. Omission to state

such a vital information to the I/O during investigation again make his evidence

doubtful since his evidence suffers from vice what is commonly called as

contradiction.

We have found that incident in question was reported to PW 1 and PW 2 by

some persons for which they rushed to the house of the accused person and found

their daughter lying dead in the house of the accused persons. However, persons

from whom they came to know about the incident was not identified by I/O during

investigation requiring this court to view the prosecution case with suspicion since

non identification and non examination of those persons requires this court to draw

a presumption as contemplated in Illustration 114 (g) of the Evidence Act.

Learned Addl. P.P., submits that the accused had absconded soon after the

alleged incident for which he could be arrested 2 (two) days after the incident under

consideration. However, such contention is not fully supported by evidence on

record since PW 1 found the accused in his house while PW 1 was still in the ill

fated household. Therefore, the contention that the accused has absconded soon

after the incident is found not wholly reliable.

Our forgoing discussion reveals the following circumstances

(i) The victim was the wife of accused person. (ii) she was married by

the accused person few months before her death. (iii) she died on

18.08.2009, (iv) her death was unnatural, (v) she died in the house

of accused person, (vi) during the time under consideration accused

with his wife and his other family members lived in same household

and (vii) the accused was arrested during the course of investigation

although charge of accused absconding has not been proved as it is

found from our forgoing discussion.

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Crl. A.(J). No. 60 of 2011

The forgoing circumstances though raised a serious doubt about the

complicity of accused person in the crime in question, yet, such doubt is not enough

to conclude conclusively that the accused and none else was the person responsible

for committing the crime in question as required under the law.

In this connection, it may be stated that there is a huge gap between the

proof and suspicion since suspicion cannot take place of proof. Unfortunately, in our

present case, the prosecution could not bridge the gap between suspicion and proof

requiring this court to hold that prosecution has not been able to prove the case

beyond all reasonable doubt.

We have already found that I/O has submitted charge sheet u/s 302/34 IPC

against the accused person and his father. Both the accused persons stood charged

of offence u/s 302/34 IPC. However, father of the present accused person was

acquitted by the Trial Court for want of evidence. The acquittal of father of the

present accused person, in the facts and circumstances, detailed here-in-before

clearly shows that judgment under challenge is susceptible to charge of un-

tenability which again further fortify the claim of accused person that he is innocent.

We have already found that the case in hand is a case which is based on

circumstantial evidence where prosecution is required to prove its case by

establishing a chain of event unbreakable anywhere leading to sole and lone

conclusion that accused and none else was the author of the crime in question.

Unfortunately, in view of our forgoing discussion prosecution could have

established a chain of events unbreakable anywhere although some very serious

suspicion about the role of the accused person in the crime in question but then

there is gulf of suspicion and unless the gulf is approached, prosecution cannot be

said to have proved the case beyond all reasonable doubt.

Resultantly, the judgment under challenge is found unsustainable in law and

same is quashed and set aside.

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Crl. A.(J). No. 60 of 2011

Consequently, the present appellant is acquitted of offence u/s 302/34 IPC

and he is ordered to be released from jail if he not required in connection with any

other case.

Return the LCR.