Full Judgment
.2..The appellant was charged with having committed the .murder of Nanda Sengupta on 7.1.2002 at Tariani Farm .House under Kadam Mouza of North Lakhimpur Police Station .and thereby committing an offence punishable under .Section 302 of the Indian Penal Code. The appellant .pleaded not guilty and claimed trial.
.3..On 8.1.2002, Rekha Dutta filed a First Information .Report to the effect that Nanda Sengupta who worked as a .Chowkidar in her Farm House was killed by some miscreants .by striking him on the head on 7.1.2002. Nanda Sengupta .had been her employee for the last about 10 years and was .aged about 50 years and was a bachelor.
.4..During the course of investigations, the police .authorities arrested the appellant and he was charged for .murder as mentioned above.
.5..In her testimony, PW-1 Rekha Dutta stated that she .came to know from Babul Rajkhowa, one of her employees .that someone had hit the Chowkidar Nanda Sengupta on his .head, causing an injury and subsequent death. She had no .idea who was responsible for the murder. She stated that .she was a panch witness to the seizure made by the police ., that is, a blood strained gunny bag and boulders, one .torchlight, one shawl and a pair of sandals.
.6..PW-2 Robin Bordoloi, PW-3 Rama Kanta Bordoloi and PW-4 .Sashidhar Dutta are relatives of PW-1 Rekha Dutta and .they arrived at the scene of occurrence after receiving .information of the ghastly crime. They had no idea who .had caused the fateful injuries on the deceased. They too .were witnesses to the seizure as mentioned by PW-1 Rekha .Dutta.
.7..According to PW-5 Dr. AK Buragohain, who conducted the .postmortem examination on the body of Nanda Sengupta, the .deceased had multiple fractures of the right temporal and .parietal bone. The brain matter under the fractured bone .was exposed and blood clots were seen inside. Nanda .Sengupta died as a result of the injuries sustained on .the cranium/head.
.8..PW-6 Babul Rajkhowa is an employee of PW-1 Rekha Dutta .and he informed her of the death of the Nanda Sengupta. .According to him, the appellant had joined the services .of PW-1 Rekha Dutta about a week earlier. On the night of .the incident, the appellant along with his elder brother .Thaneswar Rajkhowa and nephew Dilip Rajkhowa informed him .at about 10.00 p.m. that Nanda Sengupta was groaning .beside a fire. They were unaware what had happened. This .witness then went to the place where Nanda Sengupta was .lying and saw him with bloody injuries on the head. The .next day, the police authorities were informed and they .interrogated the appellant. It appears that the appellant .told the police authorities as well as this witness that .he had struck the deceased with an axe and had even shown .the place where he kept the axe. The appellant also .informed that he had taken a sum of `1800/- from the .pocket of the deceased which he kept in the bamboo used .to support the roof of his room. In his cross-examination ., this witness admitted that anyone could enter the .garden by crossing or climbing the fence of the Farm .House.
.9..PW-7 Prem Bahadur Newpani did not contribute anything .to the facts of the case. PW-8 Arun Chandra Gogoi, who .was initially the Investigating Officer in the matter, .stated that one big blood stained boulder weighing about .3/4 Kg, a torchlight, a shawl and a pair of sandals were .seized from the scene of the crime. At this stage, it may .be recalled that according to PW-6 Babul Rajkhowa, the .appellant had admitted to using an axe to kill the .deceased but during investigations the Investigating .Officer, PW-8 Arun Chandra Gogoi seized a big blood .stained boulder as the weapon of offence and not an axe.
.10..The Officer In-charge of the Police Out Post who had .entrusted the investigation to PW-8 Arun Chandra Gogoi, .entered the witness box as PW-9 Indreswar Dihingia. .According to him, the appellant confessed to the crime .and also having taken a sum of `1800/- from the .possession of the deceased. This witness seized the axe .(said to be the weapon of offence) as well as the .currency notes in the presence of some independent .witnesses. Interestingly, none of the independent .witnesses to the seizure entered the witness box to .confirm the seizure. This witness is the only one who .claimed to have seized the axe (the alleged weapon of .offence) but he admitted in his cross examination that .there was no blood mark on the axe and that it was not .sent to the Forensic Science Laboratory for examination.
.11..It is quite clear from the above summary of the .evidence that this is a case of a blind murder with .absolutely no eyewitness. One theory that has come out .from the evidence on record is that a blood stained .boulder weighing about 3/4 kg was used to smash the .cranium/head of the deceased resulting him in his death. .The other theory is that an axe was used to kill Nanda .Sengupta.
.12..Insofar as the use of an axe as the weapon of offence .and the alleged theft of `1800/- from Nanda Sengupta are .concerned, we are not inclined to believe PW-6 Babul .Rajkhowa and PW-9 Indreswar Dihingia in this regard. In .our opinion, both of them have come out with a completely .unsubstantiated theory. There is no corroborative .evidence from any independent witness regarding the .seizure of the axe. It was not recovered from the scene .of the crime but some distance away and a few days later. .On the other hand, it is more probable that the blood .stained boulder was used to kill Nanda Sengupta. It was .recovered immediately and from the scene of the crime. .But, there is nothing on record to suggest that the .boulder was used by the appellant to kill the deceased. .In fact, there is absolutely no evidence against the .appellant linking him to the crime, and as stated by PW-6 .Babul Rajkhowa, anyone could have entered the garden by .crossing or climbing the fence of the Farm House. A total .stranger could have, possibly, committed the crime and .not necessarily the appellant.
.13..In view of our above conclusions, it is not possible .to conclusively say that the murder of Nanda Sengupta was .committed by the appellant only and no one else could .have committed the crime. There does not appear to be any .suspicious circumstance linking the appellant to the .death of Nanda Sengupta except the fact that he had .joined the services of PW-1 Rekha Dutta only a week .earlier. This can hardly be used as evidence to convict .him of such a serious crime as a murder.
.14..Under these circumstances, we set aside the .conviction of the appellant and allow this appeal.
.15..For the services rendered by learned Amicus Curiae, .the Assam State Legal Services Authority is directed to .remunerate him to the extent of `5000/- .
.16..Trial Court records be sent back immediately.