Page No.# 1/7 GAHC010258542013 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./208/2013 MONI GOGOI, S/O SRI DADU GOGOI, R/O TENGANI GOLAI GAON, P.S. BORPATHAR, DIST. GOLAGHAT, ASSAM. VERSUS THE STATE OF ASSAM, Advocate for the Petitioner : MR.S SHAH, MR.R S MISHRA,MR.K BARUAH,MR.P J SAIKIA Advocate for the Respondent : MR.T J MAHANTA, PP, ASSAM,MR.A BHATTACHARYA,MS.P BHATTACHARYA BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA HONOURABLE MR. JUSTICE RAJESH MAZUMDAR ORDER 15/07/2026 (Michael Zothankhuma, J) 1. Heard Mr. P. Bordoloi, learned Counsel for the Appellant/informant. Also heard Mr. T. J. Mahanta, learned Senior Counsel assisted by Mr. P.P. Dutta, learned counsel for the respondent no. 2 and Mr. R. R. Kaushik, learned APP, Assam, Page No.# 2/7 appearing for the State. 2. This is an appeal filed by the informant against the acquittal of the respondent no. 2 from the charge framed against him under the section 302/201 IPC, vide the impugned judgment dated 08/04/2013, passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 123/2007. 3. The appellant's counsel submits that the acquittal of the respondent no. 2 from the charge under section 302/201 IPC by the learned Trial Court has been made without the learned Trial Court having referred to and discussed the evidence of PW-5 and PW-7, which is to the effect that the wet clothes of the deceased had been found in the house of the respondent no. 2 one day after the dead body of the deceased had been recovered near the banks of the pond, which was in the enclosed yard of the property of the respondent no. 2. He submits that the dead body of the deceased had been covered with garbage on 17/08/2007 and was recovered near the pond of the respondent no. 2, while wearing only an underwear. Further, the Investigating Officer (PW-13) had clearly stated in his evidence that on interrogating the respondent no. 2, the respondent no. 2 had stated that he had kept the clothes of the deceased and Rs. 7,200/-, in a rat hole of the kitchen of his house. The clothes of the respondent no. 2 had thereafter been taken out from the rat hole by the respondent no. 2 on 18/08/2007, which was witnessed by PW-5. Further, PW-7 in his evidence, had also stated that on 18/08/2007, the Police had recovered Rs 7,200/-, one trouser, one shirt and one gamocha from the residence of the respondent no. 2. As such, when the clothes of the deceased had been recovered from the house of the respondent no. 2 and the dead body of the deceased, wearing only an underwear, had been recovered from the enclosed yard of the respondent no. 2, the finding of the learned Trial Court that there was no evidence that the recovered clothes belonged to the deceased, was perverse. The learned counsel for the appellant also submits that the evidence of PW- 3 shows that the deceased was last seen entering the house of the respondent no. 2 Page No.# 3/7 on 16/08/2007 and no one had seen the deceased alive thereafter. As such, the last seen theory should have been applied by the learned Trial Court, as the deceased's body had been found the next day i.e. on 17/08/2007. 4. Mr. T. J. Mahanta, the learned senior counsel for the respondent no. 2 submits that when the learned Trial Court has made a finding on facts, any other view taken by this Court should not override the view of the learned Trial Court just because there are two views possible on the facts of the case. He further submits that the Prosecution had not been able to establish any motive for the respondent no. 2 to have murdered the deceased. He also submits that though there were five seizure witnesses and the charge sheet listed out 19 Prosecution Witnesses, the prosecution had examined only 2 seizure witnesses and 13 Prosecution Witnesses in all. As vital witnesses were not examined by the Prosecution, the innocence of the respondent no. 2 could not have been shown in a more clearer light. He also submits that the evidence leading to the discovery of the wet clothes of the deceased was not proved. He, accordingly submits that the appeal should be dismissed. 5. Mr. R. R. Kaushik, learned APP submits that as the “last seen theory” applied to the respondent no. 2 and the dead body of the deceased had been found the day after the respondent no. 2 was last seen with the deceased, Section 106 of the Evidence Act required the respondent no. 2 to explain the special knowledge with regard to how the deceased had died and as to what had happened to the deceased. Further, the clothes of the deceased were recovered from the house of the respondent no. 2 on 18/08/2007. He also submits that when the PW-5 has given evidence to the effect that the clothes of the deceased had been found in the house of the respondent no. 2, the said evidence should have been discussed by the learned Trial Court and the same should also have been put across to the respondent no. 2 during his examination under Section 313 Cr.P.C, to enable the respondent no. 2 to explain the incriminating evidence adduced against him. The same was, however, not done by the Page No.# 4/7 learned Trial Court. 6. On the other hand, the learned Trial Court kept silent with regard to the evidence adduced by the PW-5 & PW-7 and has not made any discussion with regard to the evidence of PW-5 and PW-7. He accordingly submits that the circumstantial evidence only points to the guilt of the respondent no. 2, which led to the death of the deceased and as such, the appeal should be allowed and the respondent no. 2 should be convicted under section 302/201 IPC. 7. We have heard the learned counsels for the parties. 8. The brief facts of the case is that the deceased and the respondent no. 2 were apparently business partners and they had apparently gone to a market on 16/08/2007 for selling cattle. PW-3 had reportedly seen the deceased and the respondent no. 2 returning from the market on 16/08/2007 and they both entered the house of the respondent no. 2. However, prior to that, PW-3 had seen the deceased and the respondent no. 2 entering one Bubu Bora's house for consuming alcohol, which led them to be in an intoxicated condition. PW-3 also stated that he later heard that the deceased had died due to drowning. 9. The last person seen with the deceased was the respondent no.2 in terms of the evidence of PW-3. As the deceased did not return to his house on 16/08/2007, the brothers of the deceased had gone to the house of the respondent no. 2, searching for the deceased. The respondent no. 2 had told them that the deceased had left his house at 6.30 p.m. on 16/08/2007 and that the respondent no. 2 had given the deceased a sum of money amounting to approximately Rs. 9,110/-, as his share of the business proceeds, from the cattle business they had indulged in. The cycle of the deceased was found by the Village Defence Party around 9.15 p.m. on 16/08/2007, which was around 200 metres to 500 metres from the residence of the respondent no. 2. The body of the deceased was however found on 17/08/2007 at around 1.30/2 Page No.# 5/7 p.m, by the side of the pond in the enclosed yard/property of the respondent no. 2. The dead body was wearing only an undergarment and was apparently covered with tree branches as per the evidence of PW-13. PW-13 also stated that there were marks showing that the dead body had been dragged from the north edge of the pond to the east bank of the pond. 10. The wet clothes of the deceased was thereafter apparently found in the house of the respondent no. 2 on 18/08/2007, on the same being taken out by the respondent no. 2 from a rat hole that was by the side of the fireplace of his house. The recovered wet clothes were a trouser, a shirt and an old gamocha with floral designs, as per the evidence of PW-5. The evidence of PW-7 is also to the effect that the Police recovered Rs. 7,200/-, one trouser, one shirt and one gamocha from the house of the respondent no. 2 on 18/08/2007. 11. A bare perusal of the above evidence of PW-5 and PW-7 Prima facie implies that the respondent no. 2 was somehow involved and had the knowledge of the death of the deceased, which has however not been discussed by the learned Trial Court. 12. With regard to the finding of the clothes of the deceased from the house of the respondent no. 2, the learned Trial Court in paragraph 23 of the impugned judgment has stated that the seized clothes, as alleged to have been recovered by the IO, has not been identified by any of the witnesses that those clothes belonged to the deceased person. Paragraph 24 of the impugned judgment further states that the learned Trial Court came to a finding that there was no evidence that the recovered clothes belonged to the deceased, except for the evidence of the Investigating Officer (PW-13). Para 24 of the impugned judgement is reproduced herein below as follows :- “24. From the aforesaid discussions, I find that the dead body was recovered not from the information of the accused person. Except the evidence of I.O. (P.W.13), there is no evidence that the clothes belonging to the deceased were recovered from the rat's hole of the house of the accused person. But, there is evidence that prior to the death of the deceased, the Page No.# 6/7 accused and the deceased consumed liquor and later on, the deceased Reba Gogoi died by drowning.” 13. On considering the above finding of the learned trial court, we find that the learned Trial Court has not at all considered the testimony of PW-5 and PW-7 with regard to the recovery of the wet clothes of the deceased from the house of the respondent no. 2. The relevant extract of the evidence of PW- 5 with regard to the recovery of the wet clothes of the deceased is as follows:- “Police called me and said that Reba Gogoi's clothes were in a rat hole beside the fireplace of his kitchen and there was money in a trunk. Then Robin Chetia took out Reba's wet wearing apparels from a rat hole that was by the side of the fireplace. He (Robin) took out trousers, a shirt and an old Gamocha (Hand woven towel) with floral designs. A ten- rupee currency was recovered from the pocket of his pants. Robin's brother-in law (husband of his elder sister) Jogen Chetia took out a trunk from inside and upon unlocking the trunk, 12 numbers of 500 rupee currency and 12 numbers of 100 rupee currency were recovered. Police seized the said items.” 14. The extract of the evidence of PW-7 with regard to the recovery of the wet clothes is as follows:- “When police came to the house of the accused taking the accused along, I went to his house. Police recovered Rs. 7,200/-, one trouser, one shirt and one Gamocha. After seizing the articles, police took my signature”. 15. We are of the view that as PW-5 had testified that the respondent no. 2 had taken out the wet clothes of the deceased from a rat hole by the side of the fireplace of the respondent no. 2's house, the learned Trial Court should have discussed the issue of whether the clothes recovered therein, belonged to the deceased and as to whether the same could be a link in the circumstantial evidence, pointing to the guilt of the respondent no. 2 in the death of the deceased. The same however not being done, we are of the view that the matter should be remanded back to the learned Trial Court to discuss the testimony of PWs- 5 and 7, with regard to the discovery of Page No.# 7/7 the alleged clothes of the deceased in the house of the respondent no. 2 on 18/08/2007. 16. The above being said, the question of whether section 106 of the Evidence Act would be attracted should also be discussed by the learned Trial Court. Further, the respondent no. 2 should also have been examined under Section 313 Cr.P.C, in relation to the incriminating evidence adduced against him by the PWs- 5 and 7. 17. In view of the reasons stated above, we are of the view that the learned Trial Court has to reconsider whether the circumstantial evidence points to the respondent no. 2 being guilty in relation to the death of the deceased in his compound, while wearing only an undergarment and his wet clothes being allegedly found in the house of the respondent No.2. 18. Accordingly, the case is remanded back to the learned Trial Court to proceed afresh against the respondent no. 2, from the stage of examination of the respondent no. 2 under section 313 Cr.P.C. The impugned judgment dated 08/04/2013 passed by the learned Sessions Judge, Golaghat in Sessions Case no. 123/2007 is accordingly set aside. 19. Send back the TCR. 20. The appeal is accordingly disposed of. JUDGE JUDGE Comparing Assistant