Paran Kumar Phukan, J. - This appeal is directed against the judgment and order dated 15.12.2011, passed by the learned Addl. Sessions Judge, FTC No. 1, Tinsukia, in Session Case No. 185(M)/2010 convicting the accused appellant Sri Tarun Gogoi, of offence u/s 302 IPC and sentencing him to suffer Rigorous Imprisonment for life and to pay a fine of Rs. 1,000/- in default, to Rigorous Imprisonment for 1 month.
2. The factual aspect of the case sans unnecessary details is that on 17.09.2010, the informant Sri Budha Jyoti Das lodged an FIR with O/C, Pengeree P.S. alleging therein that on 14.09.2010, the accused Sukul Kurmi, Smti. Ganita Gogoi and Sri Tarun Gogoi brutally killed his elder brother Amar Jyoti Das in the house of Ganita Gogoi and then threw the dead body into the pond of Smti. Ganita Gogoi. Police registered the FIR and on conclusion of investigation submitted charge sheet against the three accused namely, Tarun Gogoi, Ganita Gogoi and Sukul Kurmi u/s 302/34 IPC.
3. The case was committed to the court of learned Sessions Judge and it came up for trial before the learned Addl. Sessions Judge, FTC, Tinsukia. The prosecution examined 9 witnesses including the official witnesses to prove the charge against the accused. Defence examined none and took the plea of total denial. No witness has been examined on behalf of defence. On conclusion of trial learned Addl. Sessions Judge found the accused appellant Tarun Gogoi guilty of offence u/s 302 IPC and convicted and sentenced him accordingly. The other two accused were found not guilty and they were acquitted and set at liberty forthwith.
4. Being highly aggrieved and dissatisfied with the judgment Tarun Gogoi has preferred this appeal before this court.
5. We have heard Mr. B.N. Gogoi, learned Amicus Curiae appearing for the appellant and also heard Mr. K.A. Mazumdar, learned Addl. PP, appearing for the respondent. Also perused the evidence on record.
6. Mr. Gogoi, learned Amicus Curiae initiating the argument emphatically submitted that the prosecution having failed to prove the charge against the accused appellant learned trial court was in error in convicting the accused appellant u/s 302 IPC. He further submitted that there was no eye witness to the actual occurrence resulting in the death of the elder brother of the informant, even circumstantial evidence offered by the prosecution was not adequate enough to unerringly prove the complicity of the accused appellant in the commission of the crime. It is further submitted that the seizure of the chappal of the deceased from the house of the accused and recovery of the dead body of the deceased from the pond of the accused appellant would not prove the involvement of the accused appellant in the commission of the crime. Learned Amicus Curiae also argued that there was sufficient delay in lodging the FIR and the same has not been properly explained by the prosecution.
7. In the backdrop of the aforesaid contentions of the learned counsels let us now turn to the evidence on record to ensure whether the murder was committed by the accused appellant.
8. There is no dispute regarding the death of Amar Jyoti Das as a result of the injuries sustained by him. The post mortem on the dead body was conducted by PW 3 Dr. Nirod Kr. Bora and he found the following injuries:-
"i) Cranium and spinal canal-Scalp shows contusion with underlying clotted blood on left parietal region. The area measures 2 cm X 4 cm. There is a linear fracture at the base of the skull of 5 � cm size. Vertebrae normal.
ii) Membrane:- 22 ml of clotted blood is found in the extra dural space. In the sub-dural space carebro spinal fluid is blood stained, left parietal lobe is congested with blood. Ventricles contain blood.
iii) Brain and Spinal cord:- left parietal lobe is congested with blood. Spleen is ruptured. Liver is healthy and other organs are healthy.
iv) Thorax:- Walls ribs and cartilages:- on left side 11 rib is broken. Other organs are healthy.
v) Abdomen:- walls 5 cm X 4 cm size of contused area is seen on the lower abdomen below umbilicus.
Peritoneum:- Distended with gas due to parietal decomposition. Cavity contains about 450 ml of blood.
Mouth, pharynx, oesophagus-congested with blood.
Small intestine and its contents:--contains digested food. Portions of Jejunum and ilium are congested with blood due to contusion."
9. The evidence of doctor (PW 3) coupled with the evidence of other prosecution witnesses established that Amar Jyoti Das died due to the injuries sustained by him and after death his dead body was thrown into the pond.
10. Now the pertinent question is how the deceased sustained the injuries and who had thrown the dead body in the pond of the accused appellant. There is no direct evidence to connect the accused appellant with the commission of the crime and none of the witnesses saw him causing any injury to the deceased or throwing the dead body in the pond. The prosecution is relying on the circumstantial evidence to prove guilt of the accused. For conviction of the accused in a case based on circumstantial, evidence prosecution is required to establish that it was only the accused appellant who had committed the crime and no other hypothesis could be drawn. There are catena of decisions of the Apex Court laying down the principles to be followed while convicting an accused on the basis of circumstantial evidence. In the vintage decision of the Apex Court in Hanumant Govind Nargundkar v. State of M.P. reported in AIR 1952 SC 343 the Apex Court observed as under:-
"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 be 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 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."
11. In Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116, the Apex Court discussed regarding the duty of the prosecution and held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must'' or ''should'' and not ''may be'' established; (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 an 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. In Padala Veera Reddy v. State of A.P. reported in 1989 Supp (2) SCC 706, State of U.P. v. Ashok Kumar Srivastava reported in (1992) 2 SCC 86, the Apex Court expressed similar views and needs no repetition.
13. In the present case the circumstances relied upon by the prosecution are (1) circumstances of ''last seen together'' (2) recovery of the dead body from the pond of the accused appellant (3) recovery of the pair of chappal of the deceased from the house of the accused appellant.
14. Now it is to be ascertained whether the circumstances of "last seen together" has been established by the prosecution. The prosecution claims that Amar Jyoti Das went to Pengaree market at 2 pm on 13.09.2010 to sell fish and returned from the market with accused Tarun Gogoi. The evidence of PW 1 Budha Jyoti Das is that on that day Amar Jyoti Das went to Pengaree market and he returned from the market with Tarun Gogoi but he did not return to his house. In his cross examination he admitted that he had not mentioned in the FIR that on that day Amar Jyoti Das went to market at Pengaree with Tarun Gogoi. He had neither seen the deceased going to the market with the accused appellant nor returning to home from the market after selling fish with the accused appellant. The other witnesses PW 2 Sri Nirmal Das, PW 4 Sri Sukuram Sonar and PW 5 Sri Parachan Sonar also could not say anything in this regard and they have not seen the accused appellant in the company of the deceased. According to PW 6 Sri Kamal Tamuly, he saw the deceased with Sukul Kurmi in the market selling fish but he had not seen them returning together to their house. He claims to have seen Sukul Kurmi and the deceased on the previous night by the side of the pond. There is nothing in his evidence to show that he had seen the accused appellant Tarun Gogoi with the deceased on that day in the market or near the pond at night. According to him it was Sukul Kurmi, the accused acquitted in this case, who was with the deceased near the pond on the previous night.
15. On careful scrutiny of the entire evidence on record we have found that none of the witnesses saw the accused appellant in the company of the deceased before his death or on the previous night and consequently the circumstances of "last seen together" could not be established by the prosecution.
16. No serious controversy has been raised regarding recovery of the dead body of the deceased from the pond of the accused appellant Tarun Gogoi, the prosecution witnesses were present at the time of the recovery of the dead body of the deceased from the pond of the accused appellant but none of them saw the accused appellant assaulting him or throwing the dead body into the pond. Mere recovery of the dead body from the pond would not prove the complicity of the accused in the commission of the crime. The evidence on record established beyond doubt that the dead body was recovered from the pond of the accused appellant but on that basis alone he cannot be held liable for committing the crime. The third circumstance relied on by the prosecution is recovery of the chappal of the deceased from the house of the accused appellant. To prove the circumstance prosecution examined PW 2, PW 7 and PW 8 and they were present when the pair of chappal was recovered from the veranda of the house of the accused appellant by police and put their signatures in the seizure. Learned Amicus Curiae vehemently submitted that mere recovery of the chappal from the veranda of the house of the accused appellant it cannot be presumed that he had committed the crime. We find substantial force in the submission. First and foremost duty of the prosecution is to prove the circumstances under which the recovery of the chapel was made from the house of the appellant.
17. Looking for an answer we have again turned to the evidence of PW 1. His evidence reveals that when his brother failed to turn up, he went to the house of the accused appellant and questioned him about his brother and he came to know from the appellant that on the previous night he was in the house of Ganita Gogoi and when he asked Ganita Gogoi she informed that she sent Amar Jyoti Das with Sukul Kurmi. This part of his evidence came under serious challenge in this appeal. It is agitated by the learned Amicus Curiae that the FIR which was filed by PW 1 is totally silent regarding returning of Amar Jyoti Das from the market with Tarun and Tarun Gogoi and Ganita Gogoi disclosing before him that he was sent with Sukul Kurmi. It was sought to be proved by the prosecution that recovery of the chappal of the deceased from the veranda of the house shows complicity of the accused appellant in the commission of the crime. From mere recovery of the chappal without substantial corroboration by other evidence it cannot be said that the accused appellant was involved in the commission of the crime. The probability of the deceased leaving the chappal in the veranda of the house of the accused appellant, or the actual culprit leaving the chappal in his veranda also cannot be ruled out.
18. Learned Amicus Curiae also assailed the prosecution case on the ground that there was sufficient delay in lodging the FIR and under the facts and circumstances it should be treated as fatal as the same has not been satisfactorily explained. He further challenged the prosecution case on the ground that there occur serious contradictions in the evidence of PWs. His further argument was that none of the witnesses saw the accused appellant causing death of the deceased and he has been roped in due to suspicion. Mere recovery of a pair of chappal from his veranda would not prove his involvement in his commission of the crime. The deceased might have fallen after consuming alcohol and no motive also could be attributed to the accused appellant for committing the crime.
19. Learned Addl. PP controverting the submissions submitted that on 15.09.2009 on receipt of the telephonic message from one Bhaiti a GD entry No. 301 dated 15.01.2009 was made and PW 9 was entrusted to investigate the case. The dead body was recovered from the pond and it was identified by the informant. He further submits that on 16.09.2010 an FIR was lodged by the informant and one UD Case was registered on the strength of that FIR. Learned Addl. PP strenuously submitted that there was no delay in filing the FIR before police and it was promptly lodged on 15.09.2010 and GD Entry No. 301 dated 15.01.2009 is to be treated as FIR of the case as subsequent written FIR which was filed on 17.09.2010 is hit by section 162 of the Cr.P.C. and can only be used as previous statement.
20. The evidence of PW 9, the IO shows that apart from the telephonic information written FIRs were also filed. In the first FIR there was no mention of name of accused persons and in the subsequent FIR only names were mentioned.
21. Learned Amicus Curiae submitted that when the name of the accused appellant was known to the informant he should have been named him in the very first FIR. Nothing has been mentioned in the first FIR regarding returning of the accused appellant from the market with the deceased and the first FIR ended in FR vide UD Case No. 19/2010 and on the basis of the subsequent FIR only case was registered and charge sheet has been submitted. The IO was totally silent regarding the investigation conducted in pursuance to GD Entry No. 301 dated 15.01.2009. It was made on the basis of telephonic information received from one Bhati Kachari. From the evidence of IO the probability of afterthought cannot be ruled out. Moreover, neither the FIR nor the GD entry made on the basis of that FIR has been produced before the court during trial which also creates a serious doubt regarding the veracity of the prosecution case.
22. Admittedly no one had seen the actual incident and none of them also saw the deceased in the house of accused appellant Tarun Gogoi. Mere recovery of the dead body from the pond of his house with injuries on his head would not prove his involvement with commission of the crime. On perusal of the entire evidence on record we have found that nobody had seen the accused appellant returning to home with the deceased after selling fish in the Pengeree market and none of them also saw the accused appellant causing his death. Moreover, there are marked improvements of the witnesses during trial of the case and material contradictions have been duly proved. In the FIR on the basis of which case has been registered there is nothing to show that accused appellant was returning to home with the deceased. Learned trial court on the basis of recovery of the dead body from the pond of accused appellant and recovery of chappal from the veranda came to the conclusion that accused appellant had committed the crime which in our view was not a correct approach. Section 106 of the Evidence Act cannot come to the aid of prosecution since the prosecution has failed to prove that accused appellant had knowledge that the dead body was floating in his pond.
23. Having heard the learned counsel for both the parties and having regard to the facts and circumstances of the present case and the evidence on record we have found that the judgment under assailment is not legally sustainable and as such liable to be set aside which we accordingly do.
24. The appeal is allowed.
25. The accused appellant is ordered to be released forthwith if he is not required in connection with any other case.
26. Send down the LCR along with a copy of this judgment for information and necessary action to the court below.
27. We deeply appreciate the assistance rendered by Mr. B.N. Gogoi, learned Amicus Curiae in disposing the present appeal. We, therefore, direct the State to pay him an amount of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) as being his professional fee and same needs to be paid within a period of 3 (three) months from the date of receipt of a certified copy of this judgment.
