Page 1 of 30

CAUSE TITLESessions Case No. 137/12

Informant: Sri Bishal Lakra, S/o- Sri Agustin Lakra,R/o- Kendugiri Tea Estate,Garah Line,PS- Tingkhong,District- Dibrugarh.

Accused: Sri Raju Kujur, S/o- Late Krishna Kujur,R/o- Thekeragiri, PS- Tingkhong,District- Dibrugarh.

ADVOCATES:-For the State: Mrs. Runumi Devi, learned Public Prosecutor.

For the Defence: Mr. A Rob, learned legal aid counsel.

IN THE COURT OF THE SESSIONS JUDGE: DIBRUGARH

Page 2 of 30

Present: Shri S.K. Sharma, AJS,Sessions Judge,Dibrugarh.

Sessions Case No. 137/12G.R. Case No. 2519/11

State of Assam

-Vs-

Sri Raju Kujur

Charges: under Sections 376/302/34 IPC.

Date of evidence on : 26-11-12, 20-12-12, 13-02-13, 21-05-13, 08-08-13, 12-11-13, 09-12-13, 24-02-15, 23-11-15 & 19-05-16.Date of argument : 16-06-16.Date of Judgment : 30-06-16.

JUDGMENT

1) Prosecution case is that on 11-12-11, during the day time, the

deceased Krishna Lakra had gone along with two small girls, Pinki

and Rashmi to collect fire wood from a drain inside Kenduguri Tea

Estate. There, they encountered the accused persons Sri Raju Kujur

& Sri Rabin Aind (absconder) who were also cutting firewood. They

told the girls to leave and threatened to cut them if they did not

listen to. The two little girls Pinki and Rashmi left, but the deceased

Karishma Lakra remained. Subsequently, her dead body was found

with cut injuries upon it. Prosecution seeks to prove that the

accused persons killed the deceased after committing of rape upon

her.

2) The informant Sri Bishal Lakra, brother of the deceased lodged the

First Information Report at Rajgarh Police Outpost and investigation

commenced. In course of such investigation, the Investigating

Officer visited the place of occurrence, recorded the statement of

witnesses, sent the body for post-mortem examination, prepared

Sketch-Map and on completion of investigation, filed the Charge-

Sheet under Sections 376/302/34 IPC.

3) In course of the trial, accused Sri Rabin Aind absconded and was

declared proclaimed offender. The case was split up and proceed

Page 3 of 30

against the present accused Sri Raju Kujur.

4) Upon committal, my learned predecessor framed charges under

Sections 376/302/34 IPC against the accused persons and the

charges were read over and explained to the accused persons to

which they pleaded not guilty and claimed to be tried.

5) In course of trial, prosecution examined fifteen witnesses and on

conclusion thereof, the accused person was examined under

Section 313 CrPC wherein the accused person took the plea of

denial.

6) Heard Smti. R Devi, learned PP for the State and Mr. Rob, learned

legal aid counsel for the defence.

POINTS FOR DETERMINATION

1. Whether the deceased died as a result of the injuries

sustained by her?

2. Whether the accused person committed rape upon her?

3. Whether the accused persons in furtherance of their common

intention caused the death of the deceased? If so, whether

such death was caused with such intention or knowledge so

as to amount to murder?

DECISION AND REASONS THEREOF

Point No. 1:

7) PW-13 Dr. SJ Deka stated that on 12-12-11, he conducted post-

mortem examination on the body of the deceased Karishma Lakra

on police requisition and found the following injuries:

1. Incised wound of 3 cm x 1 cm muscle deep over left

maxilla, vertically placed 2 cm from the left ear,

reddish in colour;

2. Incised wound of 1 cm x 1 cm muscle deep over the

left face 3 cm from injury No. 1 obliquely placed;

3. Incised wound of 6 cm x 3 cm obliquely placed over left

chin and 0.4 cm from injury No. 2 reddish in colour;

4. Incised wound over left side of front of neck muscle

deep of 6 cm x 4 cm, carotidsheath completely clean

cut, horizontally placed 3 cm below left mandible and 2

cm from midline in the front;

5. Incised wound of 10 cm x 7 cm over right of the neck 2

Page 4 of 30

cm below the mandible, clean cut muscle skin,

carotidsheath, nick on C3 horizontally placed, 4 cm

below chin.

As per medical opinion, death was due to haemorrhagic shock as a

result of injuries sustained as described. All the injuries were ante

mortem and caused by sharp cutting weapon, homicidal in nature. All

the injuries can collectively cause death in the ordinary course of

nature and injuries No. 4 & 5 can cause death individually. Time since

death was 24-36 hours. Hence, it is established that the deceased died

as a result of the injuries sustained by her.

Point No. 2:

8) No medical investigation was carried out to ascertain the presence

of any injury to the private parts of the deceased. As per the

inquest report also, there is no injury to the private parts. The

forensic evidence adduced by PW-15, Sr. Scientific Assistant,

Serology Division, Directorate of Forensic Science, Kahilipara,

Guwahati indicates presence of blood only on the pink coloured

underwear sent for examination, but no semen. No witness has

deposed to the commission of rape either. Hence, there is no

evidence to establish the charge of rape.

Point No. 3:

9) PW-2 Smti. Pinki Kharia stated that on the day of occurrence, at

around 1:00 pm, she had gone with Rashmi and Karishma to collect

firewood and when they were near the drain of the tea garden, both

of the accused threatened to kill them if they did not leave.

Thereafter, they (Pinki and Rashmi) came out of the drain, but

Karishma was in the drain and did not go with them. At that time,

both of the accused were armed with ‘dao’ and ‘katari’ and both of

them cut Karishma and threw her into the drain and at that time,

there were no other persons near the drain except the two accused.

10) During cross-examination, PW-2 stated that she did not go to the

place of occurrence. On the day of occurrence, Karishma went to

the Church wherefrom she came home and thereafter, she went

with PW-2 for collecting firewood. She further stated that she did

not see the accused cutting Karishma and that except the accused

persons, there was no other person in the drain. On the day of

Page 5 of 30

occurrence, Karishma was wearing skirt and shirt, the colour of

which were black. PW-2 further stated that upon calling, when

Karishma did not come out, PW-2 informed the matter to their

house. PW-2 denied the defence suggestion that she deposed as

tutored and that she did not go with Karishma to collect firewood.

11) PW-1 Sri Bishal Lakra deposed that on the day of occurrence, at

about 3/3 ½ in the afternoon, the deceased Karishma went out in

search of firewood along with two girls, namely, Pinki and Rashmi.

After a long time, the two girls who had gone with Karishma in

search of firewood came back, but Karishma did not. Upon asking,

both Pinki and Rashmi told PW-1 that both the accused persons had

killed Karishma and threw her body in the drain. The Garden

Chowkider informed the matter to the Garden Manager. PW-1 went

to the place of occurrence and saw the deceased lying dead with

cut injury on her chick. The lodged the ejahar at the police station.

12) During cross-examination, PW-1 stated that he lodged the First

Information Report on the basis of information given by Pinki and

Rashmi (PWs-2 & 3) who had gone along with the deceased. He also

stated that the two girls had seen the occurrence. But this part of

the testimony of PW-1 is not believable because PW-2 Pinki had

deposed during cross-examination that she did not know the names

of the two accused persons and further she admitted that she did

not see the actual occurrence of killing of the deceased. Therefore,

neither she nor PW-3 could have told the PW-1 that the accused

persons had killed the deceased. He also stated that the First

Information Report was written by one Subhash Singh at the tea

garden and at that time, around 100 people were present. But a

perusal of the Ext. 1 First Information Report shows that it was

written by Sri Aniket Nayak, who was also examined as PW-12. PW-2

also stated that on the day of occurrence, the deceased had gone to

Church for offering prayer and the distance between the Church and

his house is about 4/5 miles and they used to go there on foot. He

further stated that the distance between his house and the place of

occurrence is about 6 miles and he had told police that his sister,

i.e., the deceased was in the Church till 2:00 pm. The accused

persons earlier used to work in the garden, but they left their job for

Page 6 of 30

reasons not known to PW-2. Many people used to cut fire wood from

within the garden without obtaining permission from the authority

and the Manager sometimes used to lodge First Information Report

against such persons. The Manager sometimes obstructed the

accused persons from cutting fuel wood from the tea garden. PW-2

also stated that the Chawkider informed the matter to the Manager

and he saw conversation taking place between the Manager and the

police officer. He denied the defence suggestion that the Manager

had falsely implicated the accused persons.

13) PW-3 Smti. Rashmi Toppo, a girl aged only eight years deposed

that when she had gone to the tea garden to collect firewood along

with Pinki and Karishma, the two accused cut Karishma. But during

cross-examination, she stated that she herself did not see the

accused persons cutting Karishma. People told her that the accused

cut Karishma. She stated that Pinki and Bishal (her maternal uncle)

came with her to the Court and Bishal tutored what she would have

to say before the Court.

14) My learned predecessor noted as follows:

“This witness has been asked some question to testify her

competency. But she is not found to understand question

properly. She is also reluctant to give answer. She seems to have

not attained the maturity to understand the question properly

and to give answers, in as much as, in most of the cases, she

remained silent and did not give answer to some questions put

to her.”

Therefore, it would not be safe to rely upon the evidence of PW-3.

15) PW-4 Smti. Moriam Barah deposed that on the day of

occurrence, while he was going to the traditional doctor (bez), she

saw both the accused persons cutting firewood in the garden, but

upon her return, she did not see the accused there. Arriving at her

house, she came to know that the deceased was not present in the

house and came to know that the deceased had gone along with

Pinki to bring firewood. Pinki returned and informed that both the

accused persons had killed the deceased.

16) During cross-examination, PW-4 stated that name of the said bez

was Joymachi who resides at Thekeraguri Basti. She stated that she

Page 7 of 30

did not state before the police that she saw the accused cutting

firewood. She further stated that at the time of returning from the

house of the said bez, nobody was with her. She denied the defence

suggestion that she did not see anybody in the garden. She further

stated that Pinki did not tell her that both the accused persons had

killed the deceased.

17) What transpires from the above is that the deceased had gone to

collect firewood inside the Tea Estate and entered a drain situated

therein. It is not disputed that the body of the deceased was found

lying in the drain with injuries upon her. The testimony of PW-2

Pinki, though a child, is the most important evidence in this case.

Though she stated that she saw the accused persons cutting the

deceased and throwing her into the drain, she admitted in cross-

examination that she did not herself see the same. However, her

evidence that the accused persons, who were known to her, and

none other were present at the place of occurrence at that time,

i.e., when she left the deceased at the place of occurrence could not

be shaken in any manner. The mere fact that she falsely stated one

aspect of the matter, i.e., seeing the assault, is no reason to discard

her entire testimony. Being a child witness, problems of articulation

may also result in inaccuracies in the deposition. What she meant

as her assumption may get reflected as what she actually saw. This

is what appears to be the case upon a close reading of the cross-

examination of PW-2. Where the grain can be separated from the

chaff, acceptance of the believable part of the testimony presents

little difficulty. In Sucha Singh and Anr. Vs. State of Punjab

[(2003) 7 SCC 643], the Hon'ble Supreme Court held:

“18. ……… It is the duty of Court to separate grain from

chaff. Where chaff can be separated from grain, it would

be open to the Court to convict an accused

notwithstanding the fact that evidence has been found to

be deficient to prove guilt of other accused persons.

Falsity of particular material witness or material

particular would not ruin it from the beginning to

end. The maxim "falsus in uno falsus in omnibus" has no

application in India and the witnesses cannot be branded

Page 8 of 30

as liar. The maxim "falsus in uno falsus in omnibus" has

not received general acceptance nor has this maxim come

to occupy the status of rule of law. It is merely a rule of

caution. All that, it amounts to, is that in such cases

testimony may be disregarded, and not that it must be

disregarded. The doctrine merely involves the question of

weight of evidence which a Court may apply in a given set

of circumstances, but it is not what may be called 'a

mandatory rule of evidence'. (See Nisar Alli v. The State of

Uttar Pradesh MANU/SC/0032/1957 : 1957 CriL J550).

……….. The doctrine is a dangerous one specially in India

for if a whole body of the testimony were to be rejected,

because witness was evidently speaking an untruth in

some aspect, it is to be feared that administration of

criminal justice would come to a dead-stop. Witnesses just

cannot help in giving embroidery to a story, however, true

in the main. Therefore, it has to be appraised in each case

as to what extent the evidence is worthy of acceptance,

and merely because in some respects the Court considers

the same to be insufficient for placing reliance on the

testimony of a witness, it does not necessarily follow as a

matter of law that it must be disregarded in all respects as

well. The evidence has to be shifted with care. The

aforesaid dictum is not a sound rule for the reason that

one hardly comes across a witness whose evidence does

not contain a grain of untruth or at any rate exaggeration,

embroideries or embellishment. (See Sohrab s/o Beli

Nayata and Anr. v. The State of Madhya Pradesh

MANU/SC/0254/1972: 1972CriLJ1302) and Ugar Ahir and

Ors. v. The State of Bihar MANU/SC/0333/1964: AIR 1965

SC 277).”

18) Moreover, the testimony of PW-2 regarding the presence of the

accused persons at the place of occurrence is corroborated by the

evidence of PW-4 who deposed that she saw the accused persons

cutting fuel wood at the place of occurrence, while she was taking

her child to Jaymasi, the bez at about 3:00 pm, which was near to

Page 9 of 30

the time of occurrence. Although she admitted in cross-examination

that she did not state before the police that she saw the accused

persons cutting fire wood, it does not mean that she did not see

them at all. The above is not a material omission and does not

discredit her testimony in any way. Further, in Ext. 1 ejahar lodged

shortly after the discovery of the dead body, it is clearly stated that

PW-2 Pinki had accompanied the deceased to Sector-39 of

Kenduguri Tea Estate to collect fire wood, which also corroborates

the evidence of PW-2. Therefore, the presence of PW-2 at the place

of occurrence shortly before the occurrence cannot be doubted.

What is also stated in the ejahar is that the informant suspected the

accused Raju Kujur of committing the crime. Since the

informant/PW-1 stated that he lodged the ejahar on the basis of

information provided by Pinki, the contents of the ejahar also

corroborate the testimony of PW-2 regarding the presence of the

accused at the place of occurrence.

19) Since the testimony of PW-3 has been discarded, PW-2 remains

the sole witness to the fact whether the accused persons were

present when the PW-2 left the deceased at the place of

occurrence. In Alagupandi @ Alagupandian Vs. State of

Tamil Nadu [(2012 ) 10 SCC 451], the Hon'ble Apex Court

observed:

“12. …… Equally well settled is the proposition of law

that where there is a sole witness to the incident, his

evidence has to be accepted with caution and after

testing it on the touchstone of evidence tendered by

other witnesses or evidence otherwise recorded.”

20) Tested on the touchstone of caution and corroboration, I find

nothing to hold that the evidence of PW-2 cannot be made the

foundation of the prosecution case. It fits in very well with the chain

of events projected by the prosecution, some of which will be

presently discussed. It is not in conflict with the evidence of any

other witness, rather corroborated by them. Therefore, the presence

of PW-2 at the place of occurrence also cannot be doubted. On

consideration of the above, I find the evidence of the PW-2 to be

trustworthy and confidence inspiring.

Page 10 of 30

21) It is true that both PW-2 & 4 are relatives of the deceased. But

that does not necessarily make them interested witnesses. In

Namdeo vs. State of Maharashtra: (2007) 14 SCC 150, the

Hon'ble Supreme Court drew a clear distinction between a chance

witness and a natural witness. Both these witnesses have to be

relied upon subject to their evidence being trustworthy and

admissible in accordance with the law. The Court, in the said

judgment, held as under:

"28. From the aforesaid discussion, it is clear that Indian

legal system does not insist on plurality of witnesses.

Neither the legislature (Section 134 of the Evidence Act,

1872) nor the judiciary mandates that there must be

particular number of witnesses to record an order of

conviction against the accused. Our legal system has

always laid emphasis on value, weight and quality of

evidence rather than on quantity, multiplicity or plurality

of witnesses. It is, therefore, open to a competent court to

fully and completely rely on a solitary witness and record

conviction. Conversely, it may acquit the accused in spite

of testimony of several witnesses if it is not satisfied about

the quality of evidence. The bald contention that no

conviction can be recorded in case of a solitary

eyewitness, therefore, has no force and must be

negatived.

29. It was then contended that the only eyewitness, PW 6

Sopan was none other than the son of the deceased. He

was, therefore, "highly interested" witness and his

deposition should, therefore, be discarded as it has not

been corroborated in material particulars by other

witnesses. We are unable to uphold the contention. In our

judgment, a witness who is a relative of the deceased or

victim of a crime cannot be characterised as "interested".

The term "interested" postulates that the witness has

some direct or indirect "interest" in having the accused

somehow or the other convicted due to animus or for

some other oblique motive.”

Page 11 of 30

22) It will be useful to make a reference of another judgment of

Hon’ble Court, in the case of Satbir Singh and Ors. v. State of

Uttar Pradesh, MANU/SC/0284/2009 : (2009) 13 SCC 790, where

the Hon’ble Court held as under:

“26. It is now a well-settled principle of law that only

because the witnesses are not independent ones may not

by itself be a ground to discard the prosecution case. If

the prosecution case has been supported by the

witnesses and no cogent reason has been shown to

discredit their statements, a judgment of conviction can

certainly be based thereupon. ………”

23) Again in the case of Balraje @ Trimbak v. State of

Maharashtra MANU/SC/0352/2010: (2010) 6 SCC 673, the Hon’ble

Court stated that when the eyewitnesses are stated to be interested

and inimically disposed towards the accused, it has to be noted that

it would not be proper to conclude that they would shield the real

culprit and rope in innocent persons. The truth or otherwise of the

evidence has to be weighed pragmatically. The Court would be

required to analyse the evidence of related witnesses and those

witnesses who are inimically disposed towards the accused. But if

after careful analysis and scrutiny of their evidence, the version

given by the witnesses appears to be clear, cogent and credible,

there is no reason to discard the same.

24) Suggestions by the defence have been made to the PWs that the

Manager of the Tea Estate was behind the implication of the

accused persons since they unauthorisedly used to cut firewood

from the Estate property. But so do many others, as also stated by

PW-1. How did the two accused persons come to be singled out?

And why would the informant PW-1 do the bidding of the garden

Manager to falsely implicate one of his own? Merely because he was

a Garden Employee? The materials on record do not suggest any

credible answer to the above query. Neither is there any material to

even faintly indicate that the PWs were inimically disposed towards

the accused. For the same reasons, I do not find much substance to

the defence suggestions to the PW-2 that she has been tutored to

depose falsely.

Page 12 of 30

25) The occurrence took place in the afternoon (as per PW-1 & 2)

and the villagers arrived at the spot and discovered the body on the

same day, not very long after the occurrence. From the evidence

discussed above, it is established that on the day of occurrence, the

deceased was last seen together with the accused persons at an

isolated place and her dead body was recovered at the same spot

with cut injuries on her body shortly thereafter. The accused were

also carrying sharp cutting instruments with them, as they were

cutting fire wood.

26) PW-14 SI Jibendra Brahma, the Investigating Officer deposed as

follows:

“From the statement of the accused, Sri Raju Kujur, I came to

know that another person, namely, Sri Robin Aind was also

involved with the incident. Accused Sri Raju Kujur admitted his

guilt before me and on the basis of his statement, I arrested the

another accused Sri Robin Aind. On the basis of their statement,

I seized one dao and one axe on being shown by them which

were used for committing the offence. I recovered the said dao

from a paddy field situated at Thekeraguri. Ext. 6 is the Seizure

List wherein Ext. 6(2) is my signature. Another accused Sri Robin

Aind led and shown me an axe with bamboo handle and I seized

the same from his house. Ext. 2 is the Seizure List wherein Ext.

2(3) is my signature.”

27) In Rajiv Phukan and Anr. Vs. The State of Assam

[MANU/GH/0091/2009], a full Bench of our Hon'ble High Court held

as follows:

“24. Thus, the recording of a statement of a person, under

Section 161, in writing, is optional for the police officer,

who investigates a case. It is not, therefore, statutorily

mandatory for a police officer to reduce into writing the

statement made to him by a person, who may be

acquainted with the facts and circumstances of a given

case. Such a person may be a witness to an offence; such

a person, may also be the one, who has committed the

offence.

26. When none of the provisions of the Code of Criminal

Page 13 of 30

Procedure or of the Evidence Act makes it mandatory for a

police officer to reduce into writing the statement, which

an accused may have made, it is not only difficult, but

also impossible to hold that a 'disclosure statement'

cannot be proved at all if the 'disclosure statement' has

not been recorded, or when the written record of the

'disclosure statement' has not been introduced into

evidence.

27. What needs to be noted is that in the case of a judicial

confession, what an accused might have stated before a

Magistrate is provable by the written record. In the case of

an extra-judicial confession, no such written record may

be available. In such circumstances, the extra-judicial

confession cannot be treated to be wholly inadmissible in

evidence merely because of the fact that the extra-judicial

confession does not stand reduced into writing. Though

prudence demands that a Court, before acting upon an

extra-judicial confession, knows as to what exactly the

accused person had stated, the fact remains that a Court

cannot refuse to bring, on record, an extra-judicial

confession on the ground that no written record, as

regards the exact words used by the accused in his extra-

judicial confession, is available. However, the probative

value of such a confessional statement will be a question

of fact. If, on the basis of the deposition of the witness or

witnesses, the Court is in a position to determine as to

what exactly the accused had stated or confessed to, and,

if the Court believes that the evidence, given as regards

the fact that an extra-judicial confession had been made

by the accused is true, it would not be impermissible for

the Court to make use of such a statement even if such a

statement has not been reduced into writing. Similar is

the situation with regard to a 'disclosure statement'. A

'disclosure statement' is not, as noticed above, statutorily

required to be reduced into writing; but prudence

demands that when a statement has been made by an

Page 14 of 30

accused person, while in the custody of a police officer,

and the investigating officer intends to act upon the

statement, then, the Investigating Officer should record,

at least, that part of the statement, which is likely to lead

to the discovery of a fact so that a contemporaneous

record remains available to prove that the statement, as

claimed by the Investigating Officer, had, in fact, been

made, and the Court knows as to what the accused had

actually stated and what part or portion of his statement

had, or can be said to have, in fact, led to the discovery of

the fact.

………. When the statute has not made it mandatory for a

police officer to reduce into writing the disclosure

statement of an accused person, it would be impossible to

treat the evidence of the co-villagers as inadmissible and

thereby reject the same. The written record of the

disclosure statement is really required for the purpose of

inspiring confidence of the Court that the statement, as

deposed to, had, indeed, been made and such a written

record would further help the Court to know as to what

exactly the accused had stated to the police and what

statement, or which part of a given statement of the

accused, had really led to the discovery of the fact.

29. It is quite possible that, in a given case, no written

record of disclosure statement has been produced, but the

investigating officer's deposition, in the Court, that the

accused had made the statement, which had led to the

discovery of a fact, is found believable or is not even

disputed, would it be possible to discard such statement

of the investigating officer only on the ground that he had

not reduced into writing the said disclosure statement.

Such an approach to a piece of evidence is not possible to

be accepted as correct, particularly, when the statute has,

in the language used therein, given no such mandatory

indication.”

28) The Investigating Officer did not depose whether he reduced to

Page 15 of 30

writing the above statement of the accused Raju Kujur. A look at the

case diary, as permissible under Section 172(2) CrPC, reveals that

he did so. But the prosecution failed to get it exhibited and the

written account of the disclosure statement of the accused recorded

under Section 161 CrPC therefore cannot be read in evidence. The

Ext. 6 Seizure-List shows that the time and date of seizure as 6:30

pm on 12-12-11 and the place of signature as a paddy field,

Thekeraguri, nearby Thekeraguri Barbil Path (marked R-S) which

location is situated some distance away to the North East of the

place of occurrence, crossing Sector-40 of Kenduguri Tea Estate

(marked ‘Q’) and the Kenduguri Thekaraguri Thekarajuri PWD

Gravel Road (MN), as marked in the Ext. 10 Sketch-Map. The

witness to the Ext. 6 Seizure-List are PW-11 Sri Arjun Bara, Sri Bishal

Kujur and PW-8 Sri Samu Kujur.

29) PW-8 deposed that after the occurrence, police took both the

accused persons to Kenduguri Tea Estate and recovered one dao

and one axe from a nearby field as shown by the accused. But as

per the Investigating Officer, axe was recovered from the house of

Robin Aind. During cross-examination, PW-8 deposed that he did

not know who had kept the dao and axe in the field. He also does

not know about the ownership of the said dao and axe. PW-8 further

stated that the accused persons told before police in his presence

as well as other persons, namely, Samra Mura, Bishal Kujur and

Methew Barak that they had kept the dao and axe at the said place.

Pointing to the accused Raju Kujur, PW-8 stated that he had shown

the dao and axe to the police. PW-8 denied the defence suggestion

that nothing was seized in his presence as shown by the accused.

Therefore, PW-8 corroborated the evidence of the Investigating

Officer regarding recovery of the dao from the paddy field, though

he also mentioned the axe, which was recovered elsewhere. Though

some embellishment on the part of PW-8 cannot be denied, his

evidence otherwise stood firm.

30) The evidence of the PW-8 to the effect that the accused showed

the place to the police where the dao was lying is another

independent circumstance incriminatory of the accused. In

Ghanashyam Das vs. State of Assam: (2005) 13 SCC 387, the

Page 16 of 30

Hon'ble Supreme Court observed:

“5. Another incriminating circumstance which

corroborates the case of the prosecution is that the

appellant led the Investigating Officer PW-12 to

Kharbhanga riverside and pointed out the place where he

had thrown away the Khukri. According to the evidence of

PW-12 the Investigating Officer and PW-6, the khukri was

recovered from the river with the help of a diver. Though

both the courts have eschewed this circumstance from

consideration on the ground that no information was

recorded by PW-12 the Investigating Officer so as to

attract Section 27 of the Evidence Act, we are of the view

that the evidence of PW-12 and PW-6 to the effect that the

accused led them to the spot and pointed out the place

where the khukri was thrown, which fact stands confirmed

by the recovery, ca be looked into the throw light on the

conduct of the accused under Section 8 of the Evidence

Act vide HP Admn. V. Om Prakash.”

31) Further, in State, Govt. of NCT of Delhi v. Sunil and Anr.

[MANU/SC/0735/2000: (2001) 1 SCC 652], the Hon'ble Apex Court

held:

“21. We feel that it is an archaic notion that actions of the

police officer should be approached with initial distrust.

We are aware that such a notion was lavishly entertained

during the British period and policemen also knew about

it. Its hangover persisted during post-independent years

but it is time now to start placing at least initial trust on

the actions and the documents made by the police. At any

rate, the Court cannot start with the presumption that the

police records are untrustworthy. As a proposition of law

the presumption should be the other way around. That

official acts of the police have been regularly performed is

a wise principle of presumption and recognized even by

the legislature. Hence when a police officer gives evidence

in court that a certain article was recovered by him on the

strength of the statement made by the accused it is open

Page 17 of 30

to the court to believe the version to be correct if it is not

otherwise shown to be unreliable. It is for the accused,

through cross-examination of witnesses or through any

other materials, to show that the evidence of the police

officer is either unreliable or at least unsafe to be acted

upon in a particular case. If the court has any good reason

to suspect the truthfulness of such records of the police

the court certainly take into account the fact that no other

independent person was present at the time of recovery.

But it is not a legally approvable procedure to presume

the police action as unreliable to start with, nor to jettison

such action merely for the reason that police did not

collect signatures of independent persons in the

documents made contemporaneous with such actions.”

32) Although the evidence of the Investigating Officer regarding

what the accused Raju Kujur stated before him regarding the

location of the dao is deficient in detail, the evidence of PW-8 as

discussed above indeed lends credence to the inference that the

accused Raju Kujur had in fact disclosed to the Investigating Officer

about the location of the dao, which led to its discovery at the place

mentioned by the Investigating Officer. The evidence that the

accused also led the police to the place, wherefrom the weapon was

recovered leaves no room for any misgiving that the accused Raju

Kujur made the disclosure statement as alluded to by the

Investigating Officer which led to the aforesaid discovery,

particularly when there is no material to indicate that the

Investigating Officer was inimically disposed towards the accused.

In Sumit Tomar V. State of Punjab [(2013) 1 SCC 395], which

was a case under the NDPS Act, the Hon'ble Supreme Court held:

“In a case of this nature, it is better if the prosecution

examines at least one independent witness to corroborate

its case. However, in the absence of any animosity

between the accused and the official witnesses, there is

nothing wrong in relying on their testimonies and

accepting the documents placed for basing conviction.”

33) PW-15 Sri Arup Manta stated that on 06-01-12, he was working

Page 18 of 30

as Sr. Scientific Assistant, Serology Division, Directorate of Forensic

Science, Kahilipara, Guwahati. On that day Director cum Chemical

Examiner to the Government of Assam, Directorate of Forensic

Science, Assam received five parcels sent by Messenger in

connection with Tingkhong P.S. Case No. 159/2011 under Sec. 302

IPC. The parcel five numbers of sealed cloth covered cartoon box

consisted of 10 exhibits enclosed with a paper cover which was

sealed with the impression of a seal corresponding the seal in

question forwarded by S.P. Dibrugarh. He deposed as follows:

Description of articles:

1. Ext. marked as ‘A’ Your No. My No.

Contains one bamboo

handled dao with stain of suspected

blood. The blade is moderately rusted.

Total length of the dao is 56.2 cm

Approx. “A” Sero 2932/A.

2. Ext. Marked as B “

Bamboo handled Axe with

stain of suspected blood. The

axe is moderately rusted. Total

length of the axe is 83 cms

approx. “B” Sero 2932/B.

3. Ext. Marked as C contains

one pink colour under wear

with stain of suspected semen. “C” Sero 2932/C.

Result of examination:

1. Ext. No. Sero 2932/D and Sero 2932 E gave positive test for

human blood of “B” group.

2. Ext. No. Sero 2932/A gave positive test for human blood only but

its group could not be ascertained due to rusting of the dao.

3. Ext. No. Sero 2932/C and Sero 2932/F gave positive test for

blood only.

34) From the evidence of PW-15, it appears that he examined the

‘Dao’ with handle (Ext. No. Sero 2932/A), moderately rusted and

found human blood upon it, but the blood group could not be

ascertained.

Page 19 of 30

35) In Dr. Sunil Clifford Daniel Vs. State of Punjab [(2012 ) 11

SCC 205], the Hon'ble Supreme Court observed as follows:

“31. A similar view has been reiterated in a recent judgment of

this Court in Criminal Appeal No. 67 of 2008, Jagroop Singh v.

State of Punjab, decided on 20.7.2012, wherein it was held

that, once the recovery is made in pursuance of a disclosure

statement made by the accused, the matching or non-matching

of blood group (s) loses significance.

32. In John Pandian v. State represented by Inspector of

Police, Tamil Nadu, MANU/SC/1025/2010 : (2010) 14 SCC 129,

this Court held:

The discovery appears to be credible. It has been accepted

by both the courts below and we find no reason to discard it.

This is apart from the fact that this weapon was sent to the

forensic science laboratory (FSL) and it has been found

stained with human blood. Though the blood group could

not be ascertained, as the results were inconclusive, the

accused had to give some explanation as to how the human

blood came on this weapon. He gave none. This discovery

would very positively further the prosecution case.

(Emphasis added)”

36) Considered in the light of the above authorities, the forensic

evidence also corroborates the prosecution case.

37) In a case of circumstantial evidence, motive assumes great

significance and importance, for the reason that the absence of

motive would put the court on its guard and cause it to scrutinize

each piece of evidence very closely in order to ensure that

suspicion, emotion or conjecture do not take the place of proof. [Ref:

Surinder Pal Jain v. Delhi Administration: 1993 Supp (3) SCC

681]. But the Court has not held that in the absence of any motive,

the accused cannot be convicted under Section 302 IPC [Ref:

Lekhraj v. State of Gugrat: 1998 SCC (Crl) 704].

38) Prosecution has projected rape as the motive, which has not

been established. But it cannot be ruled out either, as there was no

medical examination into this aspect. Having regard to the

circumstances in which the deceased was found dead, it appears to

Page 20 of 30

be the most natural inference that it was the necessity for

elimination of the evidence of rape which led to her killing. In

Subedar Tewari v. State of U.P. and Ors. MANU/SC/0516/1988:

AIR 1989 SC 733, the Hon'ble Supreme Court observed as under:

“The evidence regarding existence of motive which

operates in the mind of an assassin is very often than

(sic) not within the reach of others. The motive may

not even be known to the victim of the crime. The

motive may be known to the assassin and no one else

may know what gave birth to the evil thought in the

mind of the assassin.

39) Therefore, while motive can form am important link in the chain

of circumstances, its absence need not necessarily unravel the

chain in every case. Each case must be considered in its own facts.

40) In his examination recorded under Section 313 CrPC, the

accused denied everything and claimed to have been in his house

at the time of occurrence.

41) In State of Maharashtra v. Suresh, MANU/SC/0765/1999:

(2000) 1 SCC 471, the Hon'ble Supreme Court held that, when the

attention of the accused is drawn to such circumstances that

inculpate him in relation to the commission of the crime, and he

fails to offer an appropriate explanation or gives a false answer with

respect to the same, the said act may be counted as providing a

missing link for completing the chain of circumstances.

42) The accused has denied all the circumstances put to him and

stated that he was at his house at that time, which is a plea in the

nature of alibi, assuming that his house was so located that it would

be impossible for him to be at the place of occurrence at the

relevant time. But the burden was upon the accused to establish

such plea, which defence has not discharged in the slightest.

Therefore, the explanation or lack of it in the defence statement of

the accused is an additional circumstance providing a missing link

to complete the chain of circumstance.

43) Reverting to the circumstance of ‘last seen together’ it has been

established that on the day of occurrence, the deceased was last

seen together with the accused persons at an isolated place and

Page 21 of 30

her dead body was recovered at the same spot with cut injuries on

her body shortly thereafter. The accused were also carrying sharp

cutting instruments with them, as they were cutting fire wood.

44) In State of Goa vs. Sanjay Thakran and Anr. [(2007) 3

SCC 755], the Hon'ble Supreme Court observed:

“26. In Jaswant Gir v. State of Punjab

MANU/SC/2585/2005: (2005) 12 SCC 438, it was observed

that:

5. ... In the absence of any other links in the chain of

circumstantial evidence, it is not possible to convict

the appellant solely on the basis of the 'last-seen'

evidence, even if the version of PW 14 in this regard

is believed....

From the principle laid down by this Court, the

circumstance of last-seen together would normally be

taken into consideration for finding the accused

guilty of the offence charged with when it is

established by the prosecution that the time gap

between the point of time when the accused and the

deceased were found together alive and when the

deceased was found dead is so small that possibility

of any other person being with the deceased could

completely be ruled out. The time gap between the

accused persons seen in the company of the

deceased and the detection of the crime would be a

material consideration for appreciation of the

evidence and placing reliance on it as a circumstance

against the accused. But, in all cases, it cannot be

said that the evidence of last seen together is to be

rejected merely because the time gap between the

accused persons and the deceased last seen

together and the crime coming to light is after a

considerable long duration. There can be no fixed

Page 22 of 30

or straight jacket formula for the duration of

time gap in this regard and it would depend

upon the evidence led by the prosecution to

remove the possibility of any other person

meeting the deceased in the intervening

period, that is to say, if the prosecution is able

to lead such an evidence that likelihood of any

person other than the accused, being the

author the crime, becomes impossible, then

the evidence of circumstance of last seen

together, although there is long duration of

time, can be considered as one of the

circumstances in the chain of circumstances to

prove the guilt against such accused persons

(Emphasis added). Hence, if the prosecution

proves that in the light of the facts and

circumstances of the case, there was no possibility of

any other person meeting or approaching the

deceased at the place of incident or before the

commission of the crime, in the intervening period,

the proof of last seen together would be relevant

evidence. For instance, if it can be demonstrated by

showing that the accused persons were in exclusive

possession of the place where the incident occurred

or where they were last seen together with the

deceased, and there was no possibility of any

intrusion to that place by any third party, then a

relatively wider time gap would not affect the

prosecution case.”

45) As per the Post-mortem Report Ext. 8, the post-mortem

examination was conducted on 12-12-11 at 3:30 pm and time since

death has been deposed to as 24-36 hours. Therefore, it appears

that the death of the deceased occurred no later than 3:30 pm on

11-12-11. The PW-2 had deposed that they had gone to the place of

Page 23 of 30

occurrence at around 1:00 pm on that day. But PW-1 deposed

during cross-examination that the deceased was in Church till 2:00

pm on that day and that the distance between the Church and his

house is about 4-5 miles and therefrom to the place of occurrence is

about 6 miles. It is improbable that the deceased travelled the

distance of 10-11 miles on foot on that day. Nevertheless, even if

she used some means of transport, she would have arrived at the

place of occurrence at least half an hour after 2:00 pm. Therefore,

the deceased was killed in less than an hour after been last seen

together. The place of occurrence was a deep drain situated inside a

tea estate, not frequented by the public and no garden labourer was

in sight when PW-2 left. The time was late afternoon in the month of

December and dusk was approaching. Under these circumstances,

it appears extremely improbable that after PW-2 & 3 left, the

accused persons also left and the deceased remained alone

whereafter some other person, armed with sharp weapons arrived

there and killed the deceased within that time span. The evidence

of PW-2 that the accused persons compelled the PW-2 & 3 (Rashmi)

to leave the place of occurrence, leaving the deceased behind

renders such a possibility quite impossible. In fact, this by itself is

an independent incriminating circumstance against the accused.

46) What therefore follows is that the theory of last seen together is

squarely attracted in the present case, and taken together with the

other proved circumstances establishes an unbroken chain of

circumstances pointing towards the guilt of the accused.

47) In Pawan Kumar and Ors. Vs. State of Uttar Pradesh and

Ors. [(2015) 7 SCC 148], the Hon'ble Supreme Court held as

follows:

“33. In cases where the direct evidence is scarce, the

burden of proving the case of prosecution is bestowed

upon motive and circumstantial evidence. It is the chain of

events that acquires prime importance in such cases.

Before analysing factual aspects it may be stated that for

a crime to be proved it is not necessary that the crime

must be seen to have been committed and must, in all

circumstances be proved by direct ocular evidence by

Page 24 of 30

examining before the court those persons who had seen

its commission. The offence can be proved by

circumstantial evidence also. The principal fact or factum

probandum may be proved indirectly by means of certain

inferences drawn from factum probans, that is, the

evidentiary facts. To put it differently, circumstantial

evidence is not direct to the point in issue but consists of

evidence of various other facts which are so closely

associated with the fact in issue that taken together they

form a chain of circumstances from which the existence of

the principal fact can be legally inferred or presumed.”

48) The factum probans or the circumstances established against

the accused Raju Kujur may be thus summarized:

(i) On the day of occurrence, the deceased was last

seen together with the accused persons at an

isolated place and her dead body was recovered at

the same spot with cut injuries on her body shortly

thereafter. The accused were also carrying sharp

cutting instruments with them, as they were

cutting fire wood;

(ii) The accused persons compelled the PW-2 & 3

(Rashmi) to leave the place of occurrence, leaving

the deceased behind;

(iii) Possibility of any third person having access to the

deceased during the above period can safely be

excluded;

(iv) The accused made disclosure statement on the

basis of which the murder weapon (dao) was

discovered, on being led and shown by the

accused;

(v) The forensic evidence confirmed the presence of

human blood on the dao so recovered;

(vi) As per the medical evidence, the injuries found

upon the deceased were caused by sharp cutting

weapon which can be dao;

(vii) The accused failed to offer any acceptable

Page 25 of 30

explanation to the incriminating circumstances

brought out against him and failed also to establish

any alibi.

49) Each of the aforesaid circumstances have been cogently

established. The circumstances so established form a complete

chain pointing unerringly towards the guilt of the accused and are

incapable of explanation by any other hypothesis, except that of the

guilt of the accused persons. Therefore, it is established that the

accused persons caused the death of the deceased in furtherance

of their common intention [Ref: Sharad Birdhichand Sarda vs.

State of Maharashtra (1984) 4 SCC 116].

50) However, it remains to be determined whether the act of the

accused amounts to murder as defined under Section 300 IPC.

Section 300 IPC provides as follows:

300. Murder.—Except in the cases hereinafter excepted,

culpable homicide is murder, if the act by which the death

is caused is done with the intention of causing death, or—

(Secondly) —If it is done with the intention of causing such

bodily injury as the offender knows to be likely to cause

the death of the person to whom the harm is caused, or—

(Thirdly) —If it is done with the intention of causing bodily

injury to any person and the bodily injury intended to be

inflicted is sufficient in the ordinary course of nature to

cause death, or—

(Fourthly) —If the person committing the act knows that it

is so imminently dangerous that it must, in all probability,

cause death or such bodily injury as is likely to cause

death, and commits such act without any excuse for

incurring the risk of causing death or such injury as

aforesaid. Illustrations

51) The medical evidence discussed above proves that as many as

five injuries were inflicted upon the deceased, all of which were

upon vital parts (head and neck area). The Medical Officer opined

that death was due to haemorrhagic shock following the head

injuries sustained. All injuries were ante mortem, caused by sharp

cutting heavy weapon and homicidal in nature.

Page 26 of 30

52) The weapon of offence was a dao which is a heavy sharp cutting

weapon and therefore, a formidable one and multiple injuries were

inflicted upon the vital parts of the anatomy of the deceased. From

the above, it is abundantly clear that the accused intended to cause

the death of the deceased.

53) Therefore, the act of the accused is squarely covered by the first

clause of Section 300, i.e., an act, that is done with the intention of

causing death.

54) None of the circumstances envisaged in the Exceptions to

Section 300 IPC have materialized in the present case and

therefore, no benefit thereunder would accrue to the accused.

Accordingly, it is established that the accused persons are guilty of

murder. The point is answered accordingly.

55) In the result, I hold that the prosecution has been able to prove

the guilt of the accused persons under Sections 302/34 IPC beyond

reasonable doubt and the accused Raju Kujur is convicted

thereunder.

56) None of the findings given hereinbefore shall be binding on the

absconding accused Robin Aind.

57) Parties will be heard on the question of sentence on 02-07-16.

Given under my hand and seal of this Court on this the 30 th day of

July, 2016.

SessionsJudge,

Dibrugarh

Page 27 of 30

02-07-16:

58) Heard both sides on the question of sentence.

59) Prosecution would submit that the convict has murdered a

defenceless young girl of 15 years only in order to destroy

evidence, after raping her and therefore, deserves capital

punishment.

60) On the other hand, learned defence counsel submits that the

present is not a case falling within the category of ‘rarest of rare’

calling for imposition of the capital punishment. It is further

submitted that the convict is a young man who has the potential to

reform himself. Further, the convict does not have any previous

criminal record and is unlikely to commit similar crimes upon his

release and accordingly prays for leniency.

61) I have considered the submissions made. There is ample

authority for the proposition that in a case based purely on

circumstantial evidence, capital punishment is best avoided,

although it is not a rule of universal application. (Ref: Bishnu

Prasad Sinha and anr. Vs. State of Assam: [(2007) 11 SCC

467]. Moreover, the factum of rape has not been positively

established. Rather, it is a matter of inference. Murder of an

innocent young girl, though reprehensible, is not too rare an

occurrence and the convict has not acted in a particularly unusual

or barbaric manner. I am of the considered view that in the facts

and circumstances of the present case, recourse to capital

punishment would be unwarranted. Therefore, the ends of justice

would be met by imposing the minimum punishment provided by

law.

62) Accordingly, the convict is sentenced to undergo RI for life and to

Page 28 of 30

pay a fine of Rs. 5,000/- each, i.d., RI for six months.

63) Communicate copies of the judgment to the Secretary, DLSA,

Dibrugarh for grant of compensation to the next of kin of the victims

under the Assam Victim Compensation Scheme and to the District

Magistrate, Dibrugarh.

64) Free copy of this judgment be furnished to the convict

immediately.

65) The seized items be disposed of as per law.

Given under my hand and seal of this Court on this the 2nd day of

July, 2016.

Certified that the judgment is typed to my dictation and corrected by meand each page bears my signature.

SessionsJudge,

Dibrugarh

SessionsJudge,

Dibrugarh

Page 29 of 30

APPENDIX

List of witnesses:1. PW-1 Sri Bishal Lakra;2. PW-2 Smti. Pinki Kharia;3. PW-3 Smti. Rashmi Toppo;4. PW-4 Smti. Moriam Barah;5. PW-5 Smti. Kamala Kindu;6. PW-6 Sri Sampra Murah;7. PW-7 Smti Kalpana Minz;8. PW-8 Sri Samu Kujur;9. PW-9 Sri Binud Kujur;10.PW-10 Sri Gopal Koiri;11.PW-11 Sri Arjun Bara;12.PW-12 Sri Aniket Nayak;13.PW-13 Dr. SJ Deka;14.PW-14 SI Jibendra Brahma;15.PW-15 Sri Arup Manta; and 16.CW-1 ASI Nitumoni Lahon.

List of Exhibits:1. Ext. 1 Ejahar & Inquest-Report; 2. Ext. 2 Seizure-List;3. Ext. 3 Search & Seizure List;4. Ext. 4 Seizure-List;5. Ext. 5 Seizure-List;6. Ext. 6 Seizure-List;7. Ext. 7 Seizure-List;8. Ext. 8 Post-mortem Report;9. Ext. 9 Dead Body Challan;10.Ext. 10 Sketch-Map;11.Ext. 11 Letter issued by FSL.12.Ext. 11(A) Report of FSL; and 13.Ext. 12 Charge-Sheet.

Page 30 of 30

List of witnesses and Exhibits for defence- None

Transcribed and typed by:-Bhaskar Jyoti Bora, Steno.

SessionsJudge,

Dibrugarh