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CASE NO.: Appeal (crl.)  687 of 2007

PETITIONER: Dinesh Borthakur

RESPONDENT: State of Assam

DATE OF JUDGMENT: 13/03/2008

BENCH: S.B. SINHA & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.687 OF 2007

S.B. Sinha, J.          1.      Appellant was convicted and sentenced to undergo rigorous  imprisonment for life on the charge of murder of his wife Mala Borthakur  and adopted daughter Munni @ Mayuri.   He was residing with the first  deceased at Sibnath Bhattacharya Lane, Chiring Chapari in the town of  Dibrugarh.    2.      He is an Engineer by profession.  At about 4.00/5.00 p.m. on  25.5.1999, when he returned from his place of work, he allegedly knocked  the main door of the house.  There was no response.  He called his  immediate neighbour Pranab Kumar Borah (PW1).   3.      PW1, whose house is separated only by a wall, opened the window  and asked him as to what had happened.  To that the appellant allegedly  replied "they are not opening the door".  He responded thereto saying that  "they are perhaps sleeping".   He went to the rear side of the premises.   He  found the same open.    4.      He was heard shouting loudly calling the name of his daughter Munni  and wife Mala several times.   He found his wife and daughter lying dead on  separate beds.   After a few minutes, Appellant called PW1 again shouting  "Boruah!  Boruah!".  On his query as to what had happened, he asked him to  come and have a look.   PW1 found the wife of the deceased lying on the  bed with her face down.   He also saw the lower part of her legs looking  pale.   His attention was also drawn by the appellant to the corpse of Munni.    The leg of the girl was shaken by the appellant stating, "look, she is also not  moving".   Appellant remarked, "Mala should not have done this".     5.      PW1, thereafter, asked somebody (whose name has not been  disclosed) to inform the police.  As the said request was not complied, he  himself informed the officer-in-charge of the police station about the  incident.    6.      For the purpose of investigation, a sniffer dog was brought into  service.   The dog was taken near the dead bodies.   It allegedly went close to  the appellant only and no one else when he was inside the house. 7.      PW1, in his deposition before the Court opined ’that even though such  a shocking incident had taken place, Borthakur did not show any reaction as  he should have’.  He, however, in his cross-examination stated ’having seen  the occurrence, I had lost my senses.  He too might have been out of his  mind to some extent.  Reactions vary with people.  As the deceased were  accused person’s wife and daughter respectively, his reaction should have  been more acute.  Reaction of the accused person that I had noticed might  have been for the unexpected turn of event.  He was repeatedly going near  the dead body of his daughter but not that of his wife.’    8.      Apart from PW1, his wife Purnima Devi examined herself as PW-2.    According to her, at about 10.10 A.M. when she had been going to her  office, the daughter of the accused, Munni, had been crying.  On being asked

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the reason therefor, Mala had replied that Munni had been crying because  she had been giving her a bath.    9.      PW3 Binu Bezborauah  was also a neighbour of the appellant.   She  was also a witness to the unusual crying of the girl.   10.     PW4, Sri Manash Borpujari is an employee of the Education  Department.   He is the brother-in-law of the appellant.    11.  According to him, when the appellant having been asked at around  3.30/4.00 PM as to what had happened, he replied "she killed Munni, she  killed herself too".  Reaction of PW4 upon seeing the dead body, however,  was that she had been murdered.   He accepted that the marriage between the  deceased Mala and the appellant took place 16-17 years prior to his date of  deposition and, apparently they had good relations.  According to him, he  had not witnessed any quarrel between them.    12.     PW5, Dr. R.Chaliha conducted the post mortem examination.   13.     PW6, is Rubul Sharma.  He allegedly had seen a skipping rope around  the neck of Mala as also a gold chain.  He also allegedly noticed blood  dipping out from the corners of her lips.  He also found black marks around  the neck of Munni.    14.     The Investigating Officer also found a bottle of poison.    15.     According to PW6, sheets of the bed on which the dead bodies were  found, had neatly been spread.  He also noticed arrival of the police dog.    According to him, after having smelt the dead bodies, the dog did not go out  of the room but stayed inside it near and about the appellant.    16.     PW7, Sri Dhiraj Sarmah, was a neighbour.   He came to the place of  occurrence.   According to him, Manas Barpujari came crying and told him   "Someone has killed Bubli baiden (elder sister) and her daughter Munni and  had left their dead bodies on the bed."   17.     PW8 is Sri Manik Barkakoty.  He was only a witness in regard to the  conduct and/or reaction of the appellant.   Evidence of PW9, Sri Chapan  Sarmah, was confined to the scene of the bed rooms.    18.     PW10, Sri Bijoy Prasad is the owner of a pan shop.   According to  him the accused did not buy any pan from his shop on the date of incident,  i.e., 25.5.1999.    19.     PW11, Sri Ganesh Borthakur is the brother of the accused.   He,  having been informed, visited the place of occurrence.   His evidence is not  very material.   20.     PW12 is Smt.Manjuri Borthakur.  According to her, she found the  accused sobbing and moving hither and thither in the room in which his  daughter had been lying dead.    21.     PW13, Sri Anup Baruah was a resident of a place which was at a  distance of four furlongs from the appellant’s house.  Somebody informed  him about the said deaths whereupon he went there.   22.     PW14, Sri Anupma Dutta also deposed to the same effect.  PW15, Sri  Samudra Baishya is a Chemical Engineer.  According to him the bottle  contained  organophosphorus pesticide which is a kind of insecticide used in  vegetable cultivations.     23.     PW16, Sri Kusheswar Borah  was the officer in-charge of Lakhimpur,  Police Station.  He is the investigating officer in the case.   He admitted that  PW1 Pranab Baruah had not stated before him that ’Mala should not have  done this nor did he inform that the accused had frequently gone near his  daughter but not near his wife’.   Similarly, PW4 Manas Barpujari did not  state before him about the alleged remark of the appellant that ’deceased  Mala had killed Munni and killed herself too and that he had seen scratching  marks on the back of the appellant’.  PW6 Rubul Sharmah did not inform  him that he had seen blood coming out of Mala’s mouth and that some milk  like things had been found in the glass at the scene.    Similarly, PW9  Chandan Sharmah did not state before him that that Mala and Munni had  been found lying on the same bed.   24.     Only on the basis of the aforementioned materials brought on records  by the prosecution, a judgment of conviction against the appellant was  recorded by the learned Trial judge.   The High Court dismissed the appeal  preferred thereagainst.    25.     The fact that Munni suffered a homicidal death is not in dispute.   However, there appears to be some dispute as to whether death of Mala was  homicidal or suicidal in nature.  The dead bodies of both Mala and Munni

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were having ligature marks but the doctor opined that only Munni died of  asphyxia.   No such opinion was rendered in respect of the death of Mala.    However, the result of the chemical examination showed presence of  organophosphorus pesticide, a poison. 26.     In regard to death of Mala, PW5, in his deposition, stated : "Regarding Mala Borthakur, in my post mortem  report, I have not mentioned word "homicide".   Report is/was silent about homicide\005\005..  In the instant case, my opinion is/was silent  regarding Mala Borthkur whether it was suicidal or  homicidal."

27.     What has been noticed hereinbefore clearly demonstrates that the  prosecution led only circumstantial evidence before the learned Trial Judge.   The learned Trial Judge, apart from the statements made by the prosecution  witnesses in regard to the conduct of the appellant, also took into  consideration the fact that he had not informed the police in regard to the  death of ’his own wife and adopted daughter’.  It was furthermore opined  that the appellant had failed to establish his own innocence.  An adverse  inference was drawn against the accused in regard to his failure to inform  about the death of his wife and adopted daughter till the arrival of the police  party to his house.   The learned Trial Judge also noticed that the sniffer dog had gone near  the appellant only and nobody else when he had been inside the house.   According to the learned Trial Judge, the behaviour of the accused was  abnormal as he had neither wept nor cried nor shown any sign of shock or  being upset at the scene of death of ’his own wife and adopted daughter’.   Emphasis was also laid on the fact that when the appellant was being  interrogated by the Investigating Officer, allegedly, he had told him that he  was feeling hungry and had bought some food from a line hotel.   28.     In his judgment, the learned Trial Judge referred to the statements of  the appellant in his examination under Section 313 of the Code of Criminal  Procedure in great details.  Statements of PW1 was also quoted in extenso.   29.     The learned Trial Judge, however, in our opinion, failed to analyse the  evidence of the prosecution witnesses in a proper and effective manner.   Although opining that he had no motive to kill his wife and the adopted  daughter, the effect thereof was not considered keeping in view the fact that  the prosecution rested its case only on circumstantial evidence.  The learned  Trial Judge, although took notice of the statements of PW13 that the  spectacles of the appellants were found lying on a book of Munni, drew no  inference therefrom.  He also did not make any attempt to determine the  relevance of the said evidence.  We, however, do not find the said evidence  having any relevance to the prosecution case.  The learned Trial Judge  furthermore placed on record that according to PW13, marks of blood on the  nails of the deceased having been noticed, the Investigating Officer got the  shirt removed from the body of the appellant and found two nail marks on  his back. 30.     The learned Trial judge accepted that there was no evidence brought  on record to show that the accused was seen at the place of the occurrence of  crime during the period between 11.30 A.M. in the morning hours and at  about 4.00/5.00 P.M. in the afternoon, so as to enable it to infer that he could  forcibly administer poison to the deceased or strangulate them or to do the  both so as to cause their deaths.   He further recorded that PW6 admitted in  his evidence that the nail scrapping taken from the two deceased did not  correspond to the skin scrapping taken from the body of the accused.   Thus,  there was no evidence of any mark of struggle by and between the two  deceased with the accused.    31.     The purported absence of any reaction on the apart of the appellant in  regard to the death of two deceased was for all intent and purpose made the  sole basis for his conviction by the learned Trial Judge of the offence.  It was  concluded : "So, taking the gamut of all the circumstances  analyzed  in para No.19, 24, 25, 31, 33, 37, 38, 43,  46, 47 and 54 above in particulars and the case- laws mentioned in para no. 55 above in entirety, I

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am very much persuaded to presume that it was the  present accused Dinesh Borthakur, and none else  who had intentionally caused the death of his wife  Mala Borthakur and his adopted daughter in a cold  blooded manner to eliminate them from this earth  with some motive best known to himself.   The  evidence on record of this instant case relating to  circumstances and conduct of the accused  sufficiently and clearly established all the links in  the chain of circumstances leading to the guilt of  present accused and no reasonable ground was left  for consideration consistent with his innocence." (Emphasis supplied)

32.     Judgment of the High Court with respect is no different. 33.     A finding of guilt cannot be based on a presumption.  Before arriving at  an inference that the appellant has committed an offence, existence of  materials therefor ought to have been found.  No motive for committing the  crime was identified which, in the facts and circumstances of the case, was  relevant.  How the links in the chain of the circumstances led to only one  conclusion that the appellant and the appellant alone was guilty of  commission of the offence has not been spelt out by the learned Trial Judge. 34.     The courts below did not record any finding on the basis of any material  brought on record by the prosecution that the appellant was seen at the place  of occurrence of crime between 11.30 am to 4/5.00 pm.  The least the  prosecution, in this behalf, could do was to examine the co-employees of the  appellant who had been working in his office to find out as to when he had  reached his office or whether he had left his office at any time prior to 4.00  pm.  No evidence was also led to bring on record the distance between the  house of the appellant and his office.  No witness also deposed in regard to the  mode of his travelling.  He had been seen going out of his house for his place  of work by the prosecution witnesses.  PW1 found him calling the name of his  wife and the adopted daughter for opening of the main door.  He went to the  backside of the premises only when PW1 expressed his opinion that they  might have been sleeping. 35.     The time lag between the appellant’s calling PW1 for the first time and  the second time was a few minutes.  The prosecution did not suggest nor any  finding has been arrived at that the offence could have been committed during  the said interval.   36.     PW1 on seeing the deceased Mala lying on the bed gathered an  impression that the matter was not normal.  Further, PW1 in his evidence  states that the accused shook the leg of the child ’Munni’ stating that she  was also not moving.  It is the admitted case of the prosecution that the  accused had asked PW1 to come and have a look PW1 himself was  uncertain as to whether Mala and child Munni were already dead or not.   The conduct of the appellant, so far his initial reaction to the occurrence is  concerned, appears to be most natural as he suspected that something was  wrong but was unsure thereabout at the same time.  In any view of the  matter, it does not give rise to an inference which is consistent with the  hypothesis of guilt.   37.     At this juncture, we may place on record that PW6, in his evidence, in  no uncertain terms, admitted that the scraping of nails taken from the two  deceased did not correspond to the scrapping of skin taken from the body of  the appellant.  The prosecution, therefore, did not bring on record any material  to show that the deceased had put up any resistance when the appellant had  allegedly tried to commit the crime.  Medical evidence brought on record also  does not conclusively show that Mala Borthakur suffered a homicidal death as  is evident from the autopsy report, which we have noticed hereinbefore.   38.     The mainstay of the prosecution case is the evidence of PW6, PW8,  PW9 and PW13 who testified about the sniffer dog’s staying near the accused  and the reaction of the accused was not natural as he did not exhibit his  emotion or sadness despite the fact that a shocking incident had occurred.   So far as the evidence relating to the reaction of sniffer dog is  concerned, this Court in Abdul Rajak Murtaja Dafedar v.  State of

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Maharashtra [(1969 (2) SCC 234 stated the law, thus : "There are three objections which are usually  advanced against reception of the evidence of dog  tracking.  First since it is manifest that the dog  cannot go into the box and give his evidence on  oath and consequently submit himself to cross- examination, the dog’s human companion must go  into the box and the report the dog’s evidence and  this is clearly herarsay.  Secondly, there is a  feeling that in criminal cases the life and liberty of  a human being should not be dependent on canine  inference\005\005."

       Yet again in Gade Lakshmi Mangaraju alias Ramesh v. State of A.P  [2001 (6) SCC 205], this Court opined : "There are inherent frailties in the evidence based  on sniffer or tracker dog.  The possibility of an  error on the part of the dog or its master is the first  among them\005\005\005..  The possibility of a  misrepresentation or a wrong inference from the  behaviour of the dog could not be ruled out.  Last,  but not the least, is the fact that from scientific  point of view, there is little knowledge and much  uncertainty as to the precise faculties which enable  police dogs to track and identify criminals\005\005\005.   Investigation exercises can afford to make attempts  or forays with the help of canine faculties but  judicial exercise can ill afford them."

39.     The law in this behalf, therefore, is settled that while the services of a  sniffer dog may be taken for the purpose of investigation, its faculties cannot  be taken as evidence for the purpose of establishing the guilt of an accused. 40.     Let us now consider another aspect of the matter viz., the so called  abnormal conduct on the part of the appellant.  PW1 was considered to be  the star witness by the prosecution.  He was in his house upto 11.30 am.  It  can safely be inferred from his deposition that he had come back to his  residence much prior to the appellant.  He had not noticed any abnormality  in the locality.  Other witnesses who were the neighbours of the appellant  and/or the shop owners who have their shops on the other side of the road  were also not aware of any incident before the appellant reached his  residence.   PW1 and PW2, in their deposition, did not notice any unusual conduct  on the part of the appellant or the deceased Mala on that day.   The only unusual thing noticed by  PW1, PW2 and PW3 was the  abnormal crying of Munni in the morning for a long time.  Something,  therefore, must have happened between the mother and the daughter.  It is  difficult to believe that a six year old girl would cry so loudly and that too  for such a long span of time so as to draw the attention of the neighbours  only because the mother was giving her a bath.  Something, therefore, must  have happened which the deceased was trying to hide. 41.     We fail to see any abnormality in the initial reaction of the appellant.   He knocked at the door vigorously.  He called the deceased in a loud voice  which attracted the attention of PW1.  On a query made by the latter, he had  stated that they had not been opening the door and only when PW1 opined  that they must have been sleeping, he went to the rear side of the premises  and discovered the dead bodies lying on the bed and again without any loss  of time called PW1.   PW1, in his cross-examination, admitted that reactions vary from  person to person.  Absence of any exhibition of sadness on the part of the  appellant, according to PW1, was not the conduct of a normal human being.   Manjuri Borthakur’s evidence, however, is otherwise. 42.     We may notice that this Court in Rana Partap and others vs. State of  Haryana reported in [1983 (3) SCC 327] opined :

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"Yet another reason given by the learned Sessions  Judge to doubt the presence of the witnesses was  that their conduct in not going to the rescue of the  deceased when he was in the clutches of the  assailants was unnatural.   We must say that the  comment is most unreal.   Every person who  witnesses a murder reacts in his own way.   Some  are stunned, become speechless and stand rooted   to the spot.   Some become hysteric and start  wailing.   Some start shouting for help.   Others  run away to keep themselves as far removed from  the spot as possible.   Yet others rush to the rescue  of the victim, even going to the extent of  counter- attacking the assailants.   Every one reacts in his  own special way.   There is no set rule of natural  reaction.   To discard the evidence of a witness on  the ground that he did not react in any particular  manner is to appreciate evidence in a wholly  unrealistic and unimaginative way."

{See also Marwadi Kishor Parmanand and Another Vs. State of  Gujarat [1994(4)SCC 549 ] and State of U.P.  Vs.  Devendra Singh [2004  (10) SCC 616)]}. 43.     No hard and fast rule having any universal application with regard to  the reaction of a person in a given circumstance can, thus, be laid down.   One person may lose equilibrium and balance of mind, but, another may  remain a silent spectator till he is able to reconcile himself and then react in  his own way. 44.     Thus, merely because the appellant did not cry or weep on witnessing  the dead bodies of his wife and daughter, cannot be made the basis for  informing his guilt. 45.     If he had gone to his office and come back therefrom between 11.30  am till 4/5.00 pm, the matter might have been different.  If the theory that he  could have committed the murder within a couple of minutes is ruled out, we  fail to see on what basis even a suspicion could have been raised that the  appellant had committed the crime.  It is not the case of the prosecution that  the deceased were last seen in the company of the appellant.  Nobody had  seen him going inside his house or coming out at the time of or near about  the commission of the crime.  The matter might have been different if some  evidence had been introduced to suggest that the offence was committed  sometime between 11.30 am and 4/5.00 pm.  Ordinarily, an accused person  after commission of such a ghastly crime would run away from the scene of  occurrence but he did not do so.  Even if he was to pretend that he did not  know about the said occurrence, he could have stayed back in his office  waiting for the call of his neighbours about the death of his wife and  daughter.   46.     His conduct or reaction (or lack of it) by itself, thus, cannot be a  ground for arriving at a conclusion that he is guilty of commission of crime.   Formation of another opinion is also possible.   It may or may not be that the appellant, in presence of PW1, told  "Mala should not have done that".  The same by itself does not take us  anywhere.  Assuming that he did so, although according to the Investigating  Officer, no such statement was made by PW1 before him, the same merely  indicated that something had happened between the mother and the daughter  in the morning which was not to the liking of the appellant.   47.     We are surprised to notice the introduction of a story by the  prosecution through PW4.  Even if the conduct of the appellant  demonstrated that he had been feeling sorry for the death of his daughter and  not for his wife, it does not take us any further to arrive at one conclusion or  the other. 48.     More surprising is the introduction of the purported incriminating  circumstances through some of the prosecution witnesses in regard to the  location of the dead body and the manner in which things were discovered  by some of the prosecution witnesses, although neither the Investigating  Officer had noticed the same nor his attention was drawn thereto by the said

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witnesses or others.   49.     We have noticed heretobefore that the prosecution witnesses did not  make any statement in regard to the purported reaction of the appellant  before the Investigating Officer.    50.     The prosecution made an attempt to show that the deaths of the  victims were caused by administration of poison and/or strangulation.  The  bottle containing pesticide was found in the wash basin along with a glass  inside the house.  There is nothing on record to show that the appellant had  purchased pesticide or brought it home.  No fingerprint of the appellant was  taken to show that it was he who had used the bottle or the glass for the said  purpose.  No incriminating evidence linking the appellant in regard to  administration of poison/pesticide has been brought on record.   51.     In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC  116], this Court opined that before arriving at the finding as regards the guilt  of the appellant, the following circumstances must be established: (i)     the circumstances from which the  conclusion of guilt is to be drawn should be  fully established; (ii)    the facts so established should be consistent  only with the hypothesis of the guilt of the  accused and should not be explainable on  any other hypothesis except that accused is  guilty; (iii)   the circumstances should be conclusive  nature; (iv)    there must be a chain of evidence so  complete as not to leave any reasonable  ground for the conclusion consistent with  innocence of the accused on preponderance  of probability."

       In that case, it was categorically held that the prosecution in a case of  commission of murder by poisoning must bring in record some evidence  linking the accused therewith, stating : "In the instant case, while two ingredients have  been proved but two have not.  In the first place, it  has no doubt been proved that Manju died of  potassium cyanide and secondly, it has also been  proved that there was an opportunity to administer  the poison.  It has, however, not been proved by  any evidence that the appellant had the poison in  his possession."

It was furthermore observed : "2.     That, at any rate, the evidence clearly shows  that two views are possible \026 one pointing to  the guilt of the accused and the other leading  to his innocence.  It may be very likely that  the appellant may have administered the  poison (potassium Cyanide) to Manju but at  the same time a fair possibility that she  herself committed suicide cannot be safely  excluded or eliminated.  Hence, on this  ground alone the appellant is entitled to the  benefit of doubt resulting in his acquittal. 3.      The prosecution has miserably failed to  prove one of the most essential ingredients  of a case of death caused by administration  of poison, i.e., possession of poison with the  accused (either by direct or circumstantial  evidence) and on this ground alone the  prosecution must fail."

52.     First Information Report might have been lodged by the appellant

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only when the police arrived at the scene of occurrence.  The Investigating  Officer came to the place of occurrence at about 4.45 pm.  PW1  categorically stated that he had asked someone to inform the police.  When  he did not comply therewith, then only he did so.  If, in the aforementioned  situation, the appellant had not informed the officer-in-charge of the police  station, no presumption of adverse inference could be raised against him.   There was no delay on the part of the appellant in informing the police,  particularly, when he had informed PW1 who, in turn, informed the police. 53.     The learned Trial Judge has also relied upon the evidence of PW10,  the owner of a Pan shop, who testified that the appellant had not visited the  Pan shop on that day.  His evidence, in our opinion, is not at all reliable.  He  admitted in his cross-examination that in the forenoon, his brother used to sit  at the shop and, thus, his inference that the appellant used to take Pan  regularly cannot be trustworthy.   54.     We, therefore, are of the firm view that circumstantial evidence  leading to the guilt of the appellant have not been established by the  prosecution, the judgment of the conviction and sentence, therefore, cannot  be sustained.  They are set aside accordingly.  We can only record our  distress that even in a case of this nature, appellant had to remain in custody  for a period of four years.   54.     The appeal is allowed.  The appellant is directed to be set at liberty  forthwith unless wanted in connection with any other case.