26 May 2020


Judgments

High Court of Gauhati

Baikuntha Das Vs. The State of Assam and Ors.

MANU/GH/0654/2018

20.07.2018

Criminal

In a criminal case, resting entirely on circumstantial evidence, all circumstances are required to be proved solidly beyond reasonable doubt

The Appellant was convicted by the Additional Sessions Judge, under Section 302 of Indian Penal Code, 1860 (IPC) in Sessions Case and was sentenced to imprisonment for life and a fine of Rs. 5,000 with default stipulation. Issue involved in present case is whether circumstances relied by the learned trial Court were proved solidly beyond doubt.

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 v. State of Madhya Pradesh. observed 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."

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. 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 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.

Failure to get the weapon of offence chemically examined may not be always fatal, 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, as, without chemical examination, it may not be possible to connect weapon with the commission of offence.

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. 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.

When there is no legal evidence brought on record, the statement recorded u/s. 164 or 161 Cr.P.C. 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. Further, 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.

Circumstances sought to be relied by the prosecution were not proved beyond doubt. 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, the prosecution failed to prove the guilt of the accused beyond reasonable doubt and as such, the conviction and sentence of the Appellant are set aside. The appeal allowed.

Relevant

Hanumant v. State of Madhya Pradesh reported in MANU/SC/0037/1952
: AIR 1953 (SC) 343 : 1953 Cr.L.J

Tags : Conviction Circumstantial evidence Credibility

Share :