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Smti Bijuli Barman And Anr vs The State Of Assam And Anr on 6 December, 2019

Page No.# 1/14

GAHC010203712016

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A. 91/2016

1:SMTI BIJULI BARMAN and ANR
W/O GUNAJIT BARMAN, R/O BARUAPOTA, P.S. MUKALMUA, DIST.
NALBARI, ASSAM.

2: MONMOHAN BARMAN

S/O LATE JOGENDRA BARMAN
R/O BARUAPOTA
P.S. MUKALMUA
DIST. NALBARI
ASSAM

VERSUS

1:THE STATE OF ASSAM and ANR

2:GUNAJIT BARMAN
S/O LATE JOGENDRA BARMAN
R/O BARUAPOTA
P.S. MUKALMUA
DIST. NALBARI
ASSAM
PIN 78112

Advocate for the Petitioner : MR. B. K. Mahajan,
Advocate for the Respondent : MR. T. MISHRA
Addll. P.P., Assam
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BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE S. HUKATO SWU

Date of hearing : 02-12-2019
Date of Judgment : 06-12-2019

JUDGMENT ORDER
(CAV)
(S.Hukato Swu, J)
The present criminal appeal is directed against the judgment dated 11-03-2016
passed by the learned Sessions Judge, Nalbari in Sessions Case No. 58/2008. The
appellants are represented by Mr. B.K. Mahajan, learned counsel and the State is
represented by Mr. T. Misra, learned Additional Public Prosecutor.

2. Facts

presented before this Court is that on 02-08-2006 at about 5:30 P.M,
accused No.1, Smti Bijuli Barman and accused No.2, Manmohan Barman poured
kerosene upon Smti. Kamini Barman who is the mother of accused No.2. The
accused No.1 is the sister-in-law of accused No.2, Manmohan Barman. The
complainant/informant is Gunajit Barman who is the elder brother of Manmohan
Barman. He is the husband of accused No.1 Smti. Bijuli Barman. The informant and the
accused No.1 are reported to have been living separately after a year of their
marriage in 2005. The deceased victim Kamini Barman succumbed to her injuries on
02-09-2006. An FIR was lodged by the complainant before the Mukalmua Police
Station. Initially, the case was registered under Section 307/Section497/Section493/Section34 IPC under
Case No. 122/06 of Mukalmua Police Station. On the death of the victim, the charges
were changed to 302 SectionIPC/34. P.W.1 lodged FIR on 03-09-2006 explaining the delay
that when he lodged the FIR on 20-08-2006 at concerned Police Station, it was not
accepted because of the delay. Hence, complaint was filed before the Chief
Judicial Magistrate, Nalbari and subsequently, the matter was registered by the
Mukalmua Police Station. The main contents of the FIR is that the accused No.1, who
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is the wife of the complainant came into illicit relationship with accused No.2 who is
the younger brother of the complainant. The deceased victim mother came to know
about the affair and the victim informed the complainant which made the victim
bottleneck for the accused Nos. 1 and 2 to enjoy their illicit relationship. Thus, the
motive was to remove the hindrance in their relationship. The FIR also mentions that
the complainant had personally seen the accused persons with his own eyes on 09-
04-2006 and then on 06-06-2006 of the illicit relationship of the accused persons.
Ultimately, on 02-08-2006, at about 5:30 P.M., the accused No.1 with the help of
accused No.2 poured kerosene and lighted match stick causing grievous injury upon
the victim. The victim went out for help in the street and the neighbours doused the
fire and after scolding the accused persons coaxed them to take the victim to a
nearby hospital. The victim was taken to Mukalmua Primary Health Centre where they
were instructed to shift the victim to GMCH, Guwahati since it was severe burn injuries
and the victim was accordingly shifted to GMCH, Guwahati. The victim subsequently
succumbed to her injuries after treatment at GMCH, Guwahati.

3. P.W.1, in his deposition, has stated that on 02-08-2006, he reached home at
6:30 P.M from Guwahati where he works for a living. He was informed by the
neighbours that his mother Late Kamini Barman was set ablaze by the accused
persons and after committing the crime, accused Manmohan Barman fled away and
Bijuli Barman remained in the house. He also learnt that the locality people coaxed
the accused persons to take the victim to the hospital. On the next day of the
occurrence, he went to GMCH and met his mother. His mother told that accused
Manmohan Barman caught hold of her and Bijuli Barman after pouring kerosene set
her ablaze. He also stated that after the occurrence, Manmohan Barman and Bijuli
Barman lived together as husband and wife in the parental house of the accused
Bijuli. They did not visit GMCH to see his mother during her stay there. However, in his
cross-examination, PW 1 stated that after the incident, the accused Bijuli Barman
stayed with her mother at GMCH for 6 to 7 days during her treatment. The police had
also stated to have recovered dowry articles of Bijuli Barman from his residence. Bijuli
Barman obtained order of maintenance against the complainant under Section 125
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Cr.Pc. wherein, the complainant was directed to pay ₹.300/- per month as
maintenance and that he has been living in Guwahati for the last 12 to 13 years. He
has also stated that he did not keep Bijuli Barman with him because of his illicit
relationship with other woman. After 6 (six) months of their marriage, he came to
know that his wife Bijuli Barman who is the accused, has illicit relationship with the
accused Manmohan Barman and he has instituted a divorce case at Family Court,
Guwahati in 2006. The case is still pending.

4. P.W. 2, Ms. Anjana Deka is the elder sister of the accused Manmohan Barman.
She stated that at around 5:00 P.M., she heard hue and cry and came from the field
running where she saw her mother burning. People successfully put off the fire. She
brought a rickshaw to send her mother to the hospital. When she asked her mother
about the incident in front of the public her mother said “When I was sitting at the
verandah, my younger son Manmohan grabbed me as a result of which I fell down.
He poured oil on me and accused Bijuli set fire to me.” She stated that her Mother
was taken to Mukalmua Hospital on a rickshaw. Thereafter, accused Manmohan
Barman took her mother to GMCH for treatment. Her mother died at the GMCH after
a month. Accused Manmohan Barman and accused Bijuli Barman were not present
when cremation was done. In her cross-examination, she stated that Manmohan
was playing cards in the nearby vicinity. Other people have stated that they saw
Manmohan playing cards near the place of occurrence, Bijuli was sleeping. The two
accused persons took my mother to GMCH for treatment. She stated that Gunajit is
her brother. He filed the case against the accused. Bijuli filed several cases against
Gunajit.

5. PW 3 is Komal Deka. He stated that at around 5:00 P.M. after hearing hue and
cry, he found Kamini Barman, the deceased in front of her house. Kamini Barman was
burning and he doused the fire by pouring water and sand. When asked Kamini
Barman about the incident, she told that accused Manmohan Barman had set fire
on her. After the fire was extinguished, a rickshaw was brought and the victim was
taken to medical. Kamini was taken to GMCH from Mukalmua where she was
treated for about a month and ultimately she succumbed to her injuries. In his cross-

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examination, he stated that Gunajit who is the complainant is his maternal uncle. His
maternal uncle married Gunajit’s elder sister. He did not take Kamini to Mukalmua nor
did he go to Guwahati with her. Gunajit told him that he had filed a case against the
accused. Long time after Kamini had caught fire Manmohan came back home.

6. P.W. 5 is Durga Barmon. She stated that Kamini was her “Jaa” (wife of
husband’s brother-Jr.). She stated that the incident took place about three years
ago. Prior to the incident, the daughter-in-law did not provide meal to Kamini for
about 3 to 4 days. She asked her to cook herself. However, Kamini told her that her
daughter-in-law had kept the kitchen locked and did not allow her to eat rice on her
own. Manmohan poured kerosene on Kamini’s person in order to burn and Bijuli set
fire by lightning the match stick. On the day of occurrence, she was at Laupara
which is about 2 mile away from her house. She did not witness the incident of setting
fire on Kamini. Police did not ask him about the incident.

7. P.W. 6 is Sukreswar Deka. Three days before Kamini death, she came to his
house at around 9:00 P.M and told him that Manmohan Barman and Bijuli did not
allow her to stay at home and they did not allow her to eat. Then he took Kamini to
her home which is about 200 metres away. When he called Manmohan, he told him
from inside the house that he had driven her out of the house and he shouted that “I
would kill her by setting her on fire.” Then he left Kamini at her house. The same day at
around 11:30 P.M., Kamini once again came back to his house. He did not allow
Kamini to come to his house. He sent Kamini to Manmohan’s house. Three days after
this incident, the incident of fire took place and he heard hue and cry and learnt that
Gunajit’s mother had caught fire. He sent his son to take stock of the situation. His son
took Kamini to the medical by a rickshaw. His son said that Kamini……..(unintelligible
sentence) that Manmohan and Bijuli had burnt her and that the rickshaw puller had
also heard that (under objection). Kamini’s house is seven houses away from his
house. They are not related to each other and that Manmohan shouting that he
would kill Kamini may not be available in the statement made before the police. He
also stated that he did not remember whether he had told the police about his son
telling him that Kamini had told that her son and daughter-in-law had assaulted her.

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His son and Gunajit are friends. Naren, who is present in the Court, is Gunajit’s
brother-in-law. His son’s name is Pankaj Deka and he would not be able to tell the
name of the rickshaw puller. He stated that Kamini was undergoing treatment in
Guwahati Medical for about a month and that Bijuli had lodged several cases
against Gunajit.

8. P.W.7 states that it was on 2 nd August, 2006 at about 5:30 P.M, while she was
transplanting paddy seedlings at that time, he heard hue and cry. Manmohan came
running to the place where she was transplanting paddy seedlings. When they asked
what had happened, Manmohan wetted his hands with water and left the place
without saying anything. They also heard hue and cry on the road near Manmohan’s
house. Then they saw Manmohan’s mother Kamini on a rickshaw. They asked her how
she caught fire. Kamini told to her “when I was sitting at home Manmohan poured
Kerosene on my person and Bijuli set fire to me.” Later, she succumbed to the burn
injuries. In her cross-examination, she stated that Gunajit is her brother by village
courtesy. Anjana Deka, the woman who has come with her today is the elder sister of
Gunajit. She and Anjana have been married to the same village. She is her ‘Jaa”.

9. P.W.8 is Tukna Ram Deka. He is a rickshaw puller who testifies that he knows
both the accused. It was around 4:00 to 5:00 P.M when he was taking passengers to
Baruaputa village some youths asked him to take an old woman who sustained burn
injury and the accused Bijuli boarded the rickshaw. He brought the rickshaw to
Mukalmua. The old woman was in a critical state but she was able to speak. The old
woman on the rickshaw was saying “why did you set fire to me Bijuli?” She was
writhing in agony. He took her to the medical on his rickshaw and the doctor treated
her. He cannot say the name of the woman but he knew her. He used to address her
as “Aunt”. It is my maternal uncle’s village. He visited Gunajit’s place even once in a
month. The old woman was lifted on rickshaw with Bijuli the accused. He does not
know the name of women assembled there. He was present when the doctor was
dressing the old woman. He stated that he did not tell anyone about the old woman
saying ” Bijuli, Manao and you have burnt me”. He did not even tell this to the doctor.
He stated that he stayed at Gunajit’s house till 1991 by erecting a house. After 1991,
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he left the place.

10. P.W. 9 is Niranjan Kakati. He deposed that on the day of fire incident at about
3:00 P.M., they were playing card at Sapkata Chowk. The accused Nande @
Manmohan was also playing card. He went to Mukalmua at about 6:00 P.M. and he
heard that the mother of Manmohan’s died due to burn injury.

P.W. 10 also stated that on the day of incident, four of their friends were playing card
and in the night, he heard that the mother of Manmohan was burnt by fire and she
was taken to hospital for treatment.

11. P.W. 11 is the Medical Doctor Tarun Kumar Das who conducted post mortem
report. He has opined that the death was caused due to shock resulting from
Dermoepidermal burn as described which was antemortem and involving 45% of
total body surface area. Burn area : Dermo-epidermal burn involving in the body over
lower parts of both sides of the face, whole neck front and back of whole chest wall,
both upper limbs, upper parts of front and back of abdominal wall right side of flunks
of abodomen. Burn area is covered by unhealthy granulation tissue, pus and slough
at places and emits foul smell. Dermo-epidermal burn involving the body 40% of total
surface area.

12. P.W.12 is Mr. Binoy Kr. Ray, S.I. of Police. He stated that on 03-09-2006, he was
ASI at Mukalmua P.S. and on that day, S.I. Bhupen Bora received an FIR from Gunajit
Barman through the Court. On receipt of the FIR, the O.C., Mukalmua P.S. has
registered a case bearing No. 122/06 under Sections 307/Section497/Section493/Section34 IPC and
endorsed the same to him to investigate. He visited the place of occurrence on 03-
09-2006 and found the dead body of the victim which was taken back from GMCH.
After returning from the place of occurrence, the accused Bijuli was at the Police
Station. She was brought before the Court on 05-09-2006. After getting information
about the accused Manmohan Barman, he was arrested from a rented house at
Survey, Guwahati on 08-09-2006 with the help of police of Bashistha P.S. Originally, the
case was registered under Sections 307/Section497/Section493/Section34 IPC but when the victim
succumbed to the burnt injuries, a prayer was made before the Chief Judicial
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Magistrate for adding Section 302 IPC and was accordingly allowed to be added on
05-09-2006. He completed the investigation and submitted the charge sheet. P.W. 4,
Mahesh Kalita stated before him that he had heard that an old lady was uttering
repeatedly that she was set on fire by her daughter-in-law. P.W. 3 stated before him
that he came to know that in the absence of Gunajit, the accused Manmohan had
illicit relationship with Bijuli. In the cross-examination, he stated that the date of
occurrence as per Exhibit-2 is on 02-09-2006. No information was given to P.S. prior to
lodging of this ejahar. Nothing was found in the place of occurrence and there were
no seized materials. He did not record the statements of any person in the hospital.
He did not know who was attending doctor and nurse. He does not know the name
of landlord of the house wherefrom the accused Manmohan was arrested. He
recorded the statement of witness Kamal Deka on 04-09-2006. He came to know that
somebody had given information to Nande about the burn injury while Nande was
playing card at Sapkata. Manmohan is known as Nande also. P.W. 6, Sukleswar Deka
did not stated before him that he sent his son to get information of the occurrence
and this witness also did not stated before me that his son told him that Kamini had
told his son that Manmohan and Bijuli set fire on Kamini. P.W.7 did not state before me
that the accused persons had set fire on Kamini by pouring kerosene.

13. With the above evidences enumerated, the learned Sessions Judge has
recorded conviction under Section 302/Section34 IPC by her order dated 11-03-2016. From
the reading of the judgment, it is apparent that the learned Sessions Judge has
placed reliance upon the dying declaration that was made by the deceased as
stated by P.W.1, P.W.2, P.W. 3, P.W. 7 and P.W. 8. All these witnesses have at some
point of time stated that the deceased had declared that accused Nos. 1 and 2 had
caused her death by setting her ablaze. Secondly, the learned Sessions Judge
placed reliance upon the circumstantial evidence that have been brought before
the Court as evidence. Challenging the decision of the learned Sessions Judge, the
appellants represented by Mr. B.K. Mahajan (Advocate) has challenged the decision
impugning that both these points considered by the learned Sessions Judge fall short
of the criterion laid by several decisions of Superior Courts to record conviction on the
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basis of dying declaration and circumstantial evidence. Besides, there are many
irregularities in the dying declaration.

14. Several infirmities which have cropped up in the dying declaration have been
pointed by the learned counsel for the appellant. P.W. 1 who filed the complaint
which was registered as the FIR, did not make mention of the dying declaration and
his FIR was also lodged at a belated stage which discredits the reliability of the FIR
itself. It was stated that the FIR was first presented before the Mukalmua Police Station
on 20-08-2006. However, it was not accepted for the delay. This statement is
discredited by the statement of the I.O. himself who appears as P.W. 12. He has
categorically stated that no information was given to the Police Station prior to
lodging of this ejahar which is dated 03-09-2006. Hence, the FIR itself may be an
afterthought to avenge the animosity between P.W. 1 and P.W.2 and the
complainant himself. The animosity between these parties is clearly reflected in the
evidence which shows matrimonial disturbances of illicit relationship. For all the above
facts including the unexplained delay of about a month, sanctity of the F.I.R. is in
doubt.

15. There is also allegation and counter allegation amongst the parties. This being
the position and undeniable facts, the question of motive in the instant criminal case
can be attributed to either of the parties. Hence, the theory of removing the
deceased who remains the bottleneck to the relationship of accused Nos. 1 and 2
may not be accepted without understanding and taking into consideration the
animosity amongst the parties as well. The dying declaration as deposed by P.W.2
who is the sister of the accused and the complainant is that “when she asked her
mother about the incident in front of the public her mother said ‘when I was sitting at
the verandah, my younger son Manmohan grabbed me as a result of which I fell
down. He poured oil on me and accused Bijuli set fire to me.”. It is apparent on the
case record that her mention of the public is conspicuous in the so called dying
declaration supposed to be made by the deceased. None of the public except
partisan witnesses were examined which makes the dying declaration in issue subject
to doubt. P.W. 3 testifies that when he asked Kamini Barman, she told that her
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younger son and Bijuli Barman had set fire to her. This witness is related to Gunajit who
is the complainant and matrimonial uncle to the witness. The statement of the P.W.2
and P.W. 3 are at variation. P.W. 7 stated that we asked her how she caught fire while
she was seated on the rickshaw and she replied “when I was sitting at home
Manmohan poured kerosene on me and Bijuli set fire to me”. The dying declaration
as deposed by P.W. 7 also varies from the one deposed by P.W. 2, who has stated
that his younger son Manmohan grabbed her and as a result of which she fell down.
Hence, there is marked difference between the two dying declarations. This witness is
also related maternally to Gunajit the complainant.

16. P.W. 8 who is the rickshaw puller and who took the deceased to the hospital
stated that the old woman on the rickshaw was saying “why did you set fire to me
Bijuli”. We can easily see the marked difference between the statements of P.W. 7
and P.W. 8. They were both present near the rickshaw which was carrying the
deceased and both P.W. 7 and P.W. 8 have different version of dying declaration
coming out from the same spot and time which is practically not possible. P.W. 7 nor
P.W. 8 had corroborated the dying declaration made by the deceased to them. We
also must remember that accused Bijuli was seated with the deceased and when
such charges are leveled against her in her very presence, it is logical that she would
say something. But none of the witnesses speaks about this. Hence, from the
evidence that is placed before us, we see that there are marked differences
between the oral dying declarations that is deposed by 5 witnesses on whom the
learned Sessions Judge has relied for recording a conviction. The principle underlying
the acceptance of a dying declaration as an exception to the normal doctrine of
hearsay evidence is that “a man will not die with lies on his lips”. He is not subjected to
cross-examination as he is no more. Hence, appropriate care should be taken to see
that the dying declaration is pure and unconcocted. The person recording the dying
declaration must satisfy himself that the declarant is mentally sound to make a
statement. The dying declaration which was purported to be made to the witnesses
was never recorded before the police under Section 161 Cr.Pc. which is evident from
the statement of the I.O. himself. Statements were never recorded nor any endeavor
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was made to record the dying declaration before the two doctors who treated the
deceased inspite of the long treatment she had in the hospitals. The I.O. also clearly
states that he does not know the doctor nor the nurse who treated the deceased.
Since the statement was never recorded before the I.O. by the witnesses, who
deposed regarding oral dying declaration nor any endeavor was made to get the
dying declaration recorded by doctor or magistrate though the victim survived for
about a month, the reliability of the dying declaration is put to much doubt.

17. Learned counsel for the appellants has appropriately placed reliance on the
case of SectionSanjay-vs-State of Maharashtra, reported in (2007) 9 SCC 148, where the
Court held that in our opinion in view of the different dying declarations, it would not
be safe to uphold the conviction of the appellant and we have to give him the
benefit of doubt. Again, in the case of SectionDalip Singh and Others-vs-State of Punjab,
reported in (1979) 4 SCC 332, the Court has opined that Section 32 of the Indian
Evidence Act in view of the exception provided in sub-section (2) of Section 162 of
the Code of Criminal Porcudure, 1973, it is better to leave such dying declaration out
of consideration until and unless the prosecution satisfies the Court as to why it was
not recorded by a magistrate or by a doctor. In the instant case, the dying
declaration was never recorded by a Magistrate or by a doctor. Furthermore, severity
of the injuries due to burn caused upon the deceased, there is every likelihood of
person uttering uncoordinated statement which cannot be relied upon. In the above
given facts, there is no room to accept the dying declaration recorded by the PWs as
being pure and free from any embellishment and afterthought statements as
recorded by the witnesses.

18. On the point of circumstantial evidence which the learned Sessions Judge has
relied upon for conviction in the instant case is that the fact that the accused
Manmohan Barman was playing cards at the relevant point of time of the incident of
setting ablaze the victim is not believable because of the fact of statement made by
P.W. 9, who stated that the accused No. 2 was playing card uptill 3:00 P.M. and the
time of the incident is recorded as 5:00 P.M to 5:30 P.M by other prosecution witness
which disproves the possibility that the accused No. 2 could not be at the place of
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occurrence at the time of incidence. However, on scrutiny of the statement, it shows
that there is no time recorded about the departure of accused No.2. P.W. 9 only
stated that on the day at about 3:30 P.M. we were playing cards at Sapkata Chowk.
To disprove this fault, the learned Sessions Judge has relied on the statement of P.W. 7
who recorded that the accused No. 2 ran through the field without telling her
anything is nothing short of suspicion against the accused. However, in our view, this
reaction of the accused cannot be considered to establish his guilt. There is the
possibility of accused No.2 not departing from the place where he was seen playing
cards. He was seen by at least three witnesses. Anxiety for good or for bad reasons, a
man is capable of not doing something in the natural course such as not replying to a
relative etc. Even the fact that the accused person took the victim to the hospital for
treatment has been considered as a ploy to project themselves as innocent. It may
be conveniently argued that none of the relatives went to the hospital with the victim
but the accused persons alone. If the relatives of the deceased had suspicion upon
the accused person and they had concern for the deceased, they should have
accompanied the victim to the hospital to get assurance that the victim gets best of
treatment. This shows clearly that the other relatives did not have genuine concern
for the deceased and rather took advantage by projecting the persons attending
the victim as offenders. The statement of P.W. 6, Sukreswar Deka who testifies that the
deceased came to his house and complaint before him that she was not provided
food by them prior to the incident is also considered as a chain of event in the
circumstantial evidence. Statement of P.W. 5 and P.W. 6 are also relied upon as
circumstantial evidence. P.W. 5 is a relative of the complainant and she has made
statement on hearsay. She is 80 years old lady who was at her daughter’s place at
Laupara which is about 2 miles away from the place of occurrence. She stated that
she is not an eye witness to the incident. P.W. 6 is a neighbor of the deceased who
states that he sent his son to take stock of the situation and who stated that his son
reported that the deceased had said that the accused Manmohan and the
accused Bijuli had burnt her and that the rickshaw puller too had heard that.
However, his son Pankaj Deka who was sent to take stock of the situation was never
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examined by the prosecution and the statement of the P.W. 6 cannot be relied
upon. He has also stated that the deceased came to his house at around 9:00 P.M
which was three days before the incident of fire and when he took the deceased to
her home which is 200 metres away and called Manmohan, he told him from inside
the house that he had driven her out of the house. He also shouted that he would kill
her by setting her on fire. However, as recorded above, the reliability of this witness is
also in doubt, as he states that he does not remember about telling anything to the
police in connection with the incident. Hence, his statement was not recorded under
Section 161 Cr.Pc. and is put to much doubt.

19. The general principle of criminal jurisprudence is that when two views are
possible, the view that favours the accused should be adopted. In the instant case,
we observe that there is departure from this doctrine. The learned District Judge has
opined that the present accused/appellants taking the victim to hospital was to feign
innocence. The other view which could have been adopted is that the accused
persons did not have the intention to kill the deceased and charges under Section
302 IPC could not be recorded. As discussed earlier, the accused persons were the
ones who took the victim to the hospital and there is no record of other family
members accompanying the deceased to the hospital. P.W. 1 had stated that the
accused persons did not come to the hospital to take care of the victim. However,
on revealing the truth, he had to retract his statement in cross-examination and admit
that the accused had spent 6 to 7 days in the hospital at Guwahati. When this action
of the accused are proved that they had shown concern for the welfare of the
deceased, it is very difficult to prove that they had intention to murder the deceased.

20. The circumstantial evidence as shown in the instant case does not confirm a
chain of events which points finger to the accused person out ruling the rest of the
world for the commission of the offence which is a requirement of the law. The Apex
Court in the case of SectionGambhir-vs-State of Maharashtra, reported in (1982) 2 SCC 351,
has held that when the case rests upon circumstantial evidence such evidence must
satisfy the following test :- (1) the circumstances from which the inference of guilt is
sought to be drawn, must be cogently and firmly established; (2) those circumstances
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should be definite tendency unerringly pointing towards guilt of the accused;(3) the
circumstances, taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime was
committed by the accused and none else; and (4) the circumstantial evidence in
order to sustain conviction must be complete and incapable of explanation of any
other hypothesis than that of the guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but should be inconsistent with his
innocence. On a bare reading of facts, the instant case does not qualify the stand
and as laid down by the Apex Court.

21. For all the reasons recorded above, we are unable to concur with the findings
of the learned Sessions Judge and accordingly set aside the judgment dated 11-03-
2016 passed by the learned Sessions Judge in Sessions Case No. 58/2008.

22. Appeal is allowed.

23. The conviction is set aside and the appellants be released and set at liberty
forthwith, if not required in any other case.

24. There is no record of any order passed by the learned Sessions Judge with
regard to compensation under Section 357 A IPC. It appears from the record that
there is no dependent of the deceased, however, the concerned District Legal
Services Authority shall examine the necessity of providing compensation to the
dependants of the victim, if any.

25. Remit the LCRs to the concerned District Judge for further steps.

JUDGE JUDGE

Comparing Assistant

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