HAREN KALITA Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS appeal from Jail is directed against the 1udg -ment and order dated 8 -11 -79 passed by the learned Sessions Judge. Kamrup. Gauhati in Sess, Case No. 115 (K -G) of 1977, whereby the appellant was convicted under Section 302. I.P.C. and sentenced to rigorous imprisonment for life.

(2.) A brief narration of the fact leading to the present appeal is that deceased Thaneswar who was originally a man of Urput village shifted to Rongpur village before the date of occurrence. At Rongpur village he purchased a plot of land near the house of his niece. Niroda Kalita (P. W. 8), his sister's daughter married to P. W. 7. Amrit Kalita. as the construction of his house was not complete he stayed with P. W. 7. Amrit Kalita temporarily. On the date of occurrence on 11 -12 -75 he went out for some purpose and it was at about 9 P. M. somebody attacked him with a dagger near his house under construction. On receipt of the iniurv he gave a scream and on hearing cry of distress of the deceased, his niece P. W. 8. Niroda KalHa. who happened to come out at that moment to throw out the kitchen rubbish, raised alarm and also called her husband to come out. At her call her husband P. W. 7 came out but before that P. W. 8 herself went ahead and saw appellant Haren Kalita coming hurriedly from the place from where the cry of her maternal uncle was heard. It is in the allegation of the prosecution case that seeing her the appellant turned towards the west to the paddy field. Then P. Ws. 7 and 8 went near the jniured and at that time the deceased expressed that 'he was finished by accused Haren Kalita'. From the evidence it is found that these are the last words uttered bv the deceased. Thereafter he succumbed to the iniuries at the spot before any aid could be given to him. When he died in the aforesaid manner, his dead bodv was taken to the house of P. W. 7. Amrit Kalita and thereafter on the advice of the people who gathered there, information was given to the she Gaonbura (P. W. 3) to come to the place of occurrence and on his arrival he was apprised of the occurrence and was re -auested to lodge the information to the police. However, that night nothing was done and on the next morning a first information was lodged, by P. W. 3 (Dipu -ram Gaonburah) being accompanied by some others, at the Palasbari Police Station. On receipt of the first information the police started investigation, tried in vain to apprehend the appellant. However the appellant surrendered before the Court at Gauhati. After completion of the investigation a charge -sheet was submitted under Section 302. I.P.C. against the appellant. During trial he was charged under Section 302. I.P.C. which was explained to the appellant to which he denied to have any complicity in the offence.

(3.) IN recording a finding by the learned trial court for basing the conviction, four circumstances were taken into consideration: (1) First is that on hearing the cry of distress from the deceased. P. W. 8, Niroda Kalita. rushed to the spot and while doing so she saw accused Haren running away from the place of occurrence. (2) The second is that in presence of both P. W. 7, Amrit Kalita and P. W. 8. Smt. Niroda Kalita, the deceased made a dying declaration that he was finished by accused Haren. (3) The third is that a muffler was found lying near the iniured person and that it is alleged that the muffler belonged to the accused and (4) the fourth that came for consideration before the trial court is that after the occurrence the accused led the police for recovery of a dagger which he used against the deceased and the same was found from inside the haystack. The last two points which came up for consideration before the trial Court have been outright reiected by the trial Court itself because of the inherent improbability and undependability of the existence of these two circumstances. Hence the trial Court mainly based the conviction only on two circumstances, namely. No. (1) and No. (2) as indicated above. It is true that there is no ocular evidence to testify as to who inflicted the injuries on the deceased. The entire case is based on circumstantial evidence. The law as to the circumstantial evidence for the purpose of basing the conviction is no longer res integra. If the conviction is to be based on circumstantial evidence, the circumstance must be such that it is the appellant and none else could have committed the offence. It must be categorically shown from the evidence that the circumstances lead to the irresistible conclusion that it was the appellant and none else who was responsible for causing the death of the deceased. In Govinda Reddy v. State of Mysore. : AIR1960SC29 AIR 1960 SC 29 : 1960 Cri LJ 137, while considering the test for evaluation of circumstantial evidence, the Court relied on the observation made in Hanumant v. State of Madhya Pradesh : 1953CriLJ129 , which reads (at page 138 of Cri LJ) 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 in the first instance be fully establised, 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.