B.P. Katakey, J.
1. This appeal by the convicts from jail is directed against the judgment of conviction dated 01.11.2001 recorded by the learned Addl. Sessions Judge-2, Tinsukia in Sessions Case No. 175(CH)/2000 convicting the appellants Under Section 302/34 IPC and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each, in default, to undergo simple imprisonment for three months each.
2. The prosecution case in brief is that on 20.2.2000 around 2.00 P.M., the Officer-in-Charge of Dholla Police Station, Sri Rukumuddin Hazarika (PW14) along with his police party went to Dhola Ajokhowa Gaon in connection with operation against a banned organization, namely ULFA. During the course of operation, they were informed about a dead body, which was lying in the field. Thereafter, they went to the place where such dead body was lying and found the same to be of Kuntil Sonowal. On the same day, an FIR was also lodged by the wife of Kuntil Sonowal, namely Smti. Khiroda Sonowal (Appellant No. 2), alleging that on 19.2.2000 around 11.00 P.M., somebody called her husband and when she opened the door, a person entered into their house and dragged her husband out of the house and that though there were other persons present outside, she went to the place of Sukur, a co-villager, with her son and after about an hour when she came back with other members of her family, she saw the dead body of her husband lying naked in the nearby field bearing cut injuries inflicted by means of a sharp weapon. On the basis of this FIR, the police registered a case, being Dholla P.S. Case No. 9/2000 Under Section 302/34 IPC and the investigation was set in motion. On completion of the investigation, charge sheet was filed against the present appellants and another, namely Palas Sonowal Under Section 302/34 IPC. The case being a Session Triable case, they were committed to the learned Sessions Judge, Tinsukia who on 13.2.2001, framed charge against all the three accused persons Under Section 302/34 IPC. The charge was read over and explained to them to which they pleaded not guilty and claimed to be tried and hence, trial commenced.
3. During the course of trial, the prosecution in order to prove the charges against the accused persons, examined 15 witnesses which includes the investigating officer as well as the doctor who conducted the post mortem examination on the dead body of the deceased. The defence declined to adduce any evidence. The statements of the accused persons were recorded Under Section 313 CrPC. Thereafter, the learned Sessions Judge, on the basis of the evidence available on record, by the impugned judgment convicted the appellants on the basis of the circumstantial evidence as there was no witness to the occurrence, however, acquitted Palas Sonowal from the charges levelled against him.
4. We have heard Mr. S.K. Medhi, learned amicus curiae appearing on behalf of the accused-appellants as well as Mr. K.C. Mahanta, learned P. P., Assam.
5. Mr. Medhi, learned amicus curiae has submitted that the judgment of conviction has been recorded by the learned trial court solely on the basis of P. Ext. 1 i.e. the letter written by PW7 Smti. Birulata Sonowal allegedly as per instruction of the accused-appellant No. 2, the wife of the deceased, the original of which though was seized vide Ext. 6, could not be produced before the court and hence no conviction can be recorded on the basis of the copy of such document. It has been further submitted that when there is no statement from the side of the prosecution as to what has happened to the original document, photocopy of the same (P. Ext. 1) is not admissible in evidence which also does not bear the signature of any of the accused persons and that was also not addressed to the appellant No. 1. Therefore, Mr. Medhi has submitted that no conviction can be recorded as has been done in the instant case by the learned trial court. Referring to the decision of the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, : 1984CriLJ1738 , Mr. Medhi has contended that admittedly there being no witness to the occurrence, a conviction on the basis of circumstantial evidence can be recorded only when the chain of evidence is complete which points to the guilt of the accused persons only and there is no scope for any doubt relating to the guilt of the accused and in the instant case, according to Shri Medhi, there is absolutely no circumstance against the appellants and the prosecution has failed to prove any circumstances against the present appellants and hence, the appellants cannot be convicted.
6. Mr. K.C. Mahanta, learned P. P. supporting the conviction recorded by the learned Sessions Judge has contended that the learned trial court has rightly recorded the conviction of the appellants Under Section 302/34 IPC on the basis of the P. Ext. 1 as within 3 days from the date of writing such letter, the husband of the appellant No. 2 was found to be murdered. It has further been contended that it is the appellant No. 2 who had pointed out the dead body of her husband to the other members of the family. Therefore, according to Sri Mahanta, the judgment of conviction recorded by the learned trial court needs no interference.
7. Dr. Rituraj Chaliha (PW12) who conducted the post mortem examination on the dead body of the deceased found the following injuries:
1) An incised wound over the left parital region measuring 10 x 1 cm. cutting bone.
2) An incised wound over the left forehead measuring 4 x 1 cm. and cutting bone.
3) An incised wound over the back of the neck starting from below the right ear measuring 12 x 2 cm.
4) An incised wound over the front of the neck measuring 18 x 6 cm. cutting the trachiea oesiphegus and second cervical vertibra.
5) An incised wound over the lower neck measuring 5 x 1 cm. cutting the trachea.
6) An incised wound over the chin on the left side cutting the mendible measuring 6 x 1 c.m.
7) A stab would over the anterior abdominal wall measuring 5 x 2 cm. situated 6 cm. above the umbilicus on the right side.
8) A stab wound over the anterior abdominal wall measuring 1 x 1 cm. situated 4 cm. above the ambilicus on the left side.
9) A stab wound over the left lateral chest wall measuring 6 x 3 cm. situated 12 cm. below the nipple.
10) A stab wound over the left lumber region measuring 4 x 2 cm. situated 8 cm. from the middle of the body and 6 cm. below the inferior angle of the scapula.
11) An incised wound over the left occipital region measuring 5 x 2 cm.
12) An incised wound over the back of the neck on the left side measuring 5 x 1 cm.
13) An incised wound over the back of the left shoulder measuring 2 x 1 cm.
14) A stab wound over the right lateral abdomen measuring 2 x 2 cm. situated 6 cm. above the anterior superior iliac 9 pine.
15) An incised wound over the mikkle of the back measuring 4 x 2 cm.
In the thorax injuries to the walls are already described. Rest of the thorasic organs are pale and healthy. In the abdomen injuries to the wall are already described. Peritoneum punctured. There is blood in the peritoneum cavity. Stomach is punctured and contain rice. Intestine are punctured and empty. Liver is punctured. Rest of the abdomen organ are healthy. In the cranium and spinal canal injury to the scalp and skull is already described. Injuries to the vertebrae already described. Membrance and brains are congested.
8. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of the injuries found which are ante mortem caused by sharp cutting and pointed weapon and are homicidal in nature.
9. In the present case, the death of Kundil Sonowal because of the injuries sustained by him as recorded by the doctor in the post mortem examination is not in dispute. The learned trial court has, therefore, rightly recorded the finding that it is a case of homicidal death. The question which requires our consideration is whether the present appellants are the author or such injuries as found by the doctor while conducting the post mortem examination on the dead body of the deceased.
10. PW 1 Sri Durjyudhana Sonowal has stated in his deposition that he came to know from others that a person was killed and he saw the dead body at a distance of 100 yards from the house of the deceased lying in the paddy field. He is witness to the inquest report (Ext. 1) as well as the seizure memo (Ext. 2). He is not a witness to the occurrence. PW2 Kodam Gogoi is also not a witness to the occurrence. This witness has in his deposition stated that when the police took him to the place of occurrence, near the house of the deceased, he saw the dead body of Kundil Sonowal in a naked condition. He is also a witness to the inquest report (Ext. 1) as well as another seizure memo (Ext. 3), by which 6 Nos. of steel glasses and a bottle were seized. PW 3 Sri Ajit Sonowal is also not a witness to the occurrence. This witness has in his deposition before the court stated that Sunil Sonowal (PW4) informed him that Kundil Sonowal was killed and then came to the place of occurrence. According to this witness, he wrote the FIR (Ext. 4) and put signature on it as a writer. This witness, during cross-examination has, however, revealed that the FIR was written by him as dictated by the Officer-in-Charge of Dholla P. S. and thereafter, obtained the thumb impression of Khiroda Sonowal, appellant No. 2 on the FIR.
11. PW 4 Sri Sunil Sonowal in his deposition has stated that one year ago at about 10.00 P.M. while he was sleeping in his house his sister-in-law Khiroda Sonowal, appellant No. 2, came to him and informed that her husband Kundil Sonowal was taken away by somebody and requested him to accompany her so as to trace her husband out and accordingly, he along with Chandralekha Sonowal (PW6), Nabul Sonowal (PW5) and other villagers went out along with Khiroda Sonowal in search of their brother Kundil Sonowal. This witness has further deposed that while they were searching for the dead body, Khiroda Sonowal showed them the dead body of Kundil Sonowal lying at a distance of 200 mtrs from his house.
12. PW5 Sri Nabul Sonowal in his deposition has stated that one year ago at about 10.00 P.M., Khiroda Sonowal came to his house and reported him that some persons came to her house and abducted her husband Kundil Sonowal and thereafter, he along with others went to the P.O. and there from they went out in search of Kundil Sonowal. While they were searching for Kundil, Khiroda showed them the dead body lying in the paddy field with multiple cut injuries, near the road. This witness has further deposed that the police from Dholla P. S. reported him that the accused Khiroda Sonowal confessed that she along with the accused persons in the docks had committed the murder of the deceased. However, in cross-examination, he could not name the police officer who told him that the appellant No. 2 made the confession that she had killed her husband along with others. PW6 Miss Chandralekha Sonowal in a similar tune has deposed that Khiroda confessed before the police that she had committed the offence along with others. This witness has further deposed that the police showed them a letter written by Smti. Birulata Sonowal as per the dictates of the accused Khiroda Sonowal to kill the deceased Kundil. According to this witness, the said letter was addressed to Phokan Sonowal. During-cross examination, this witness has, however, stated that she was not present when the accused Khiroda confessed before the police about the killing of Kundil. During cross-examination, this witness has deposed that the letter shown by the police was not read over to her and, therefore, she could not say the contents of such letter.
13. PW7 Smti. Birulata Sonowal in her deposition has stated that the P. Ext. 1 was written by her as per the instruction given by the accused Khiroda Sonowal and thereafter, the said paper was handed over to Khiroda. This witness has also stated that by P. Ext. 1 Khiroda requested her sister Suwala to ask her husband Phokan, appellant No. 1, to kill her husband. During cross-examination, this witness has stated that the occurrence took place after 3 days of writing such letter i.e. P. Ext. 1. This witness has, however, admitted that the said letter does not contain the name of the senders and from that letter it cannot be said who has in fact written such letter. According to her, Khiroda never assaulted or threatened her to write the letter i.e. P. Ext. 1, but subsequently, she has stated that the said letter was written by her out of fear as Khiroda threatened her with dire consequences.
14. PW8 Sri Bogen Chetia and PW9 Sri Debnahari Tanti are not material witnesses, as they have not deposed anything relating to the occurrence took place. P W10 Sri Numal Sonowal and PW11 Sri Dinesh Sonowal are witness to the seizure of the dao (Ext. 5). PW12 Sri Karuna Sonowal and PW 13 Smti Monima Das are the witness to the letter seized by the police vide Ext. 6, but the said seized letter is not available on record and before the court. The non-availability of the letter seized by the investigating officer (PW14) vide Ext. 6 has also been admitted in his evidence. He has stated that though a letter was seized by Ext. 6 but the same is not available in the case record. None of these witnesses, namely PW4 to PW13, admittedly saw the occurrence. PW 14 Sri Rukumuddin Hazarika, the investigating officer in his cross-examination has also admitted that seized glasses, bottle as well as the dao were not sent for forensic examination and also about non-production of the original letter seized vide Ext. 6, in court.
15. From the narration of the evidence of the aforesaid prosecution witnesses it is evident that the prosecution in order to prove the charges framed Under Section 302/34 IPC against the present appellants rely on a letter which was written by PW7 allegedly as dictated by the appellant No. 2 wherein, according to the prosecution, Phokan Sonowal (appellant No. 1) was requested by the appellant No. 2 to kill her husband. It also appears from the judgment of conviction recorded by the learned Sessions Judge that the conviction was based on such letter which was introduced in evidence by PW7 Smti Birulata Sonowal as P. Ext. 1. It is also in evidence of the witnesses to the seizure memo (Ext. 6) as well as the investigating officer, as discussed above, that the letter which was seized by Ext. 6 is not before the court as the same is not available on record. The document (P. Ext. 1) being a photocopy and there being no explanation from the side of the prosecution as to why original could not be produced, the same is not admissible as secondary evidence, though according to the prosecution, the same was seized by the investigating officer (PW14) during the course of investigation vide Ext. 6. Hence, no conviction can be based on P. Ext. 1.
16. The Apex Court in Sharad Birdhichand Sarda (supra) has observed that though an accused can be convicted on the basis of circumstantial evidence, the 5 golden principles, which have been termed as 'panchsheel', must be proved by the prosecution so as to record the conviction. It has also been observed that 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. The aforesaid 5 golden principles i.e. 'panchsheel' are:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with 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 capability the act must have been done by the accused.
17. In the instant case, from the depositions of PWs as discussed above it is evident that not a single circumstances is appearing against the present appellants. The prosecution though stated to have seized a letter, which is the basis of the prosecution case, the same was not produced before the court. What was produced was a photocopy of a letter. The learned trial court, as it appears from the judgment of conviction, has recorded the conviction on the basis of the photocopy of such letter marked as P. Ext. 1 without going into the admissibility of such document and also without taking into consideration the admitted position that the document i.e. the letter which was seized vide Ext. 6 could not be produced before the court by the prosecution. The other circumstance on which the conviction has been recorded, i.e. the evidence of PW4, PW5 and PW6 that the appellant No. 2 pointed out the dead body of her husband while they were searching for him together. It appears from the deposition of these witnesses that they along with the appellant No. 2 while searching for Kuntil Sonowal, the appellant No. 2 saw the dead body. This does not necessarily mean that appellant No. 2 led those witnesses to recover the dead body. It may be that the appellant No. 2 while searching for Kundil along with those witnesses saw the dead body first and pointed it out. Hence, conviction on the basis of such evidence cannot be sustained.
18. In view of the above, we are of the view that the prosecution has failed to bring home the charges Under Section 302/34 IPC against the present appellants. Hence the judgment of conviction recorded by the learned trial court is set aside. The accused-appellants Phokan Sonowal and Smti. Khiroda Sonowal be set at liberty forthwith, if not wanted in connection with any other case. The appeal stands allowed.
Before parting, we put on record our appreciation to the assistance rendered by Mr. S.K. Medhi, learned amicus curiae as well as Mr. Mahanta, learned P. P. The learned amicus curiae shall be entitled to a sum of Rs. 5,000/- (Rupees five thousand) as professional fee. Mr. Medhi has, however, submitted that the State Government maybe directed to deposit the said amount in the Legal Aid Fund of this Court. We appreciate such submission. Ordered accordingly.