Page No.# 1/6 GAHC010055472022 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRL.A(J)/43/2022 AGASTOSH KERKETA UDALGURI, ASSAM. VERSUS THE STATE OF ASSAM REP. BY PP, ASSAM. Advocate for the Petitioner : DR. B N GOGOI, AMICUS CURIAE, Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA HONOURABLE MR. JUSTICE KAKHETO SEMA JUDGMENT AND ORDER Date : 08-04-2025 (P.J. Saikia, J) Heard Dr. B.N. Gogoi, learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Bhuyan, the learned Senior Counsel and the learned Addl. Public Prosecutor, Assam. Page No.# 2/6 2. This is an appeal under Section 374 (2) of the Code of Criminal Procedure (CrPC), 1973 challenging judgment dated 22.12.2021 passed by the learned Sessions Judge, Udalguri in Sessions Case No.95/2017 arising out of Dimakuchi P.S. Case No.32/2016, registered under Section 302 of the Indian Penal Code convicting the appellant Agastosh Kerketa under Section 302 of the Indian Penal Code. 3. On 25.04.2016, Smti. Saru Tigga (PW-1) lodged an FIR before police stating that on the previous day at about 7 P.M. her husband (the deceased) had gone to the house of the present appellant, who is her relative. The PW-1 has alleged that when he reached the house of the appellant, without any reason, the latter had killed him by hitting his head with an axe. 4. The dead body of the deceased was subjected to post-mortem examination. On the next day of the occurrence, the appellant had surrendered before police. 5. After filing of the charge sheet, the trial court framed the charge under Section 302 of the Indian Penal Code, to which the appellant pleaded not guilty. Hence, the trial followed. 6. The PW-1 has stated in her evidence that at the time of occurrence, she was at her home. A person called Barna Tirky (PW-3) came to her house and told her that the appellant had killed her husband. 7. In her cross-examination, she has stated that the distance between her house and that of the appellant, is about 200 meters. In between the two houses, the houses of PW-3 and Jowakin (not examined in this case) are situated. According to this witness, on the day of occurrence, the appellant was alone in his house as his family was not present. 8. Smti. Sunita Tigga is the second prosecution witness (PW-2). She is the sister of the deceased. She has stated in her evidence that at the relevant time of occurrence she was cooking food in her kitchen and at about 7 P.M., she heard that her sister-in- law i.e. the PW-1 was loudly shouting outside. She came to know that PW-1 was Page No.# 3/6 shouting in front of the house of the appellant. PW-2 immediately went there and saw the dead body of her brother and an axe by the side of the dead body. PW-2 has stated that at that time the appellant was not present in his house because he had already ran away. 9. In her cross-examination, she has stated that there are no other houses between her house and the house of the appellant. She has also stated that the house of the PW-3 is situated on the other side of the house of the appellant. According to PW-2, she noticed that the appellant must be cooking his food in the earthen oven inside his kitchen because there was half cooked food over the oven at that time. PW-2 has further stated that the appellant had surrendered before police and confessed his guilt. 10. PW-3 (Barna Tirky) has his house by the side of the appellant. At the relevant time of occurrence, he was present in his house and was enjoying local liquor. According to this witness, the two houses are situated at a distance of about 10 ft. According to PW-2, at about 7 P.M. the appellant asked his wife Nita Tirky (not examined in this case) to bring some cooked vegetables. Accordingly, his wife took some cooked vegetables and about to go to the house of the appellant to hand over the same. 11. The PW-3 has stated in his evidence that at that moment, he and his wife had heard a distorting sound that had come from the house of the appellant. Therefore, both of them rushed to the house of the appellant and they saw that the deceased was lying flat on the ground and he was bleeding from his head and face. By that time, the appellant had already fled from the place. 12. There is nothing relevant in his cross-examination. 13. The fourth prosecution witness (PW-4) is the doctor who had conducted post- mortem examination upon the deceased. He spoke about his findings. 14. The fifth prosecution witness is Badeswar Hazarika (PW-5). He has stated in his Page No.# 4/6 evidence that one day in the month of April, 2016, one boy told him that the deceased was killed by the appellant with an axe. Accordingly, the PW-5 along with some other person went to the house of the appellant and saw the dead body of the deceased. In the meantime, police arrived and seized the blood stained axe. The PW-5 stood as a witness to the said seizure. 15. There is nothing relevant in his cross-examination. 16. The sixth prosecution witness is Indra Rajbangshi (PW-6). His evidence is similar to that of PW-5. On the day of occurrence, a person called Madan Paik informed him over phone that the deceased was killed by some unknown person and his dead body was laying in the courtyard of the appellant. PW-6 went there and saw the dead body. In the meantime, police arrived and seized the blood stained axe. The PW-6 also stood as a witness to the said seizure. 17. In his cross-examination, the PW-6 has stated that the dead body of the deceased was laying inside the house of the appellant and the blood stained axe was lying by the side of the dead body. 18. The seventh prosecution witness is Babul Paik (PW-7). On the day of occurrence, he was present in a place which is about 5 km. away from his own house. At about 7/8 P.M., a person called Rimiz Kujur informed him over telephone that the appellant had committed murder of the deceased in his house. This witness had rushed to the house of the appellant and saw the dead body of the deceased that was lying inside the house of the appellant. The dead body had deep cut marks on his neck and head. An axe was lying by the side of the dead body. In the meantime, police arrived and seized the blood stained axe. The PW-7 stood as a witness to the said seizure. 19. His cross-examination is nothing relevant. 20. The eighth prosecution witness is Philimon Tigga (PW-8). He is the younger brother of the deceased. On the day of occurrence, at the relevant time, he heard hue Page No.# 5/6 and cry outside his house. He came out and saw that the people were rushing towards the house of the appellant, which is situated at a distance about 25/30 ft. away. Accordingly, this witness also followed the other people. PW-8 has stated in his evidence that on reaching the house of the appellant, he saw the dead body of the deceased. The head portion of the deceased was lying outside the house and the remaining portion of the dead body was inside the house. This witness had seen a blood stained axe lying by the side of the deceased. PW-8 has stated that at the time of occurrence, the deceased was alone in the house, as his family had resided in a separate house at Badlapara. 21. In the cross-examination portion of his evidence, there is nothing relevant. 22. The ninth prosecution witness is the Police Investigating Officer (PW-9) who spoke about police investigation. In his cross-examination, he had admitted that he did not send the seized axe to the FSL for serological examination. 23. We have carefully gone through the prosecution evidence. No defence witnesses were examined by the appellant. 24. In this case, there are no eye witnesses supporting the prosecution case against the appellant. There is no evidence to prove that at the time of occurrence, both the appellant and the deceased were together inside the house of the appellant. The only incriminating material that is available in this case is that the appellant had surrendered before the police. 25. Does the aforesaid fact is sufficient to hold the appellant guilty of an offence? The answer to this question must be given in negative. It is a cardinal principle of criminal jurisprudence that an offence against an accused must be proved beyond all reasonable doubt. There are no eye witnesses to the occurrence. There are no witnesses to prove that at the relevant time of occurrence, both the deceased and the appellant were together inside the house of the appellant. The seized axe was not sent to the Forensic Science Laboratory for comparing the blood stains available on Page No.# 6/6 the axe with the blood of the deceased. At this stage, there is no evidence to prove that the seized axe was used to kill the deceased. 26. This Court is of the opinion that the learned trial court has erroneously appreciated the evidence and arrived at an incorrect finding. There is a big cloud of doubt hovering over the prosecution story implicating the appellant with the offence. The prosecution failed to prove the offence against the appellant beyond all reasonable doubt. 27. For the aforesaid reasons, the appeal is allowed. The impugned judgment dated 22.12.2021 passed by the learned Sessions Judge, Udalguri in Sessions Case No.95/2017 arising out of Dimakuchi P.S. Case No.32/2016, registered under Section 302 of the Indian Penal Code convicting the appellant Agastosh Kerketa under Section 302 of the Indian Penal Code, is set aside. 28. The appellant Agastosh Kerketa is acquitted from this case. He shall be set at liberty forthwith, if not required in any other case. Send back the LCR. JUDGE JUDGE Comparing Assistant