B.A.L.L.B (HONS.

SEMESTER – V

LAW OF EVIDENCE

2BL520

CASE ANALYSIS OF

ANJAN KUMAR SARMA AND OTHERS

STATE OF ASSAM

SUBMITTED BY - SECTION B

MANYA ANJARIA – 17BAL088

NIKUNJ MAHESHWARI- 17BAL093

REHA MOHAN – 17BAL101

SHALINI MISHRA – 17BAL107

YASH DADHICH – 17BAL120

 TABLE OF CONTENT

FACTS........................................................................................ 1

CHARGES FRAMED BY SESSION JUDGE.................................................2

MEDICAL REPORT..........................................................................2

TRIAL COURT AND HIGH COURT.........................................................3

JUDGMENTS REFERRED....................................................................4

PRINCIPLE PROPOUNDED.................................................................7

GROUP OBSERVATIONS...................................................................7
-Anjan Kumar Sarma v. State of Assam- - Justice L. Nageswara Rao-

FACTS

Appellants 1, 2 and Jit Kakati worked as assistant mangers in Gotanga tea estate. Appellant 4
was working as the assistant manager in Sangsua tea estate. Jit Kakati and Anjan Kumar
Sharma resided at bungalow no.17 in Gotanga tea estate. Jit Kakati lived in bungalow no 17
in Sangsua tea estate prior to his transfer to Gotanga tea estate, but still had the possession of
the former bungalow.Rekha Dutta (deceased) resided near the director’s estate in Sangsua tea
estate. Jit Kakati developed intimacy with Rekha Dutta.

On 27-12-1992, Rekha Dutta went to director’s bungalow to fetch water, seeing this Jit
Kakati called Rekha into his own house. Rekha Dutta stayed in Jit Kakati’s home for a
considerable amount of time. This raised suspicion among other people, chowkidar at
Sangsua tea estate sent his sister (PW 2) to go and look in the house of Jit Kakati for Rekha
Dutta. Meanwhile he called Sarumai Halwai ( PW 1) sent for Rekha Dutta’s brother, Jibon
Dutta (PW 20) and told him that his sister was spending considerable amount of time in Jit
Kakati’s house. On the basis of this information Jibon Dutta went into Jit Kakati’s house to
question the conduct of Jit Kakati Jit Kakati informed Jibon that he proposes to marry Rekha
Dutta. Jibon sent for his relatives as that were required to take this decision. In the meantime
all the accused along with Rekha Dutta left Sangsua bungalow and went to Gotanga
bungalow on two motorcycles.

Rekha Dutta was last seen in Gotanga tea estate bungalow till 9 pm on evening of 27-12-1992
by Fulu Turi and Bhai Turi. As the whereabouts of Rekha dutta was not known the family
made inquiries on their own on 28-12-1992. As they could not locate Rekha, Jibon
approached the nearest police station (Pulibar Police Station, District Jorhat) and submitted
first information statement. FIR was registered at 10.15 am on 29-12-1992.

The investigating team commenced investigation, at about 1.50 pm the officer received
information about dead body lying in the railway tracks. The inquest was conducted on the
body which was severed by train. Several body parts were found lying within the area of 40ft
of the railway track. The body was identified as of Rekha Dutta on the basis of clothes she
was wearing. The appellants and Jit Kakati surrendered before the police. Pursuant to the
disclosure statement of Jit Kakati on 31-12-1992, a khukhri was discovered from the
wardrobe of Jit Kakati at bungalow no 17,Gotanga tea estate.

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-Anjan Kumar Sarma v. State of Assam- - Justice L. Nageswara Rao-

CHARGES FRAMED BY SESSION JUDGE

The Session Judge, Jorhat framed following charges:

Firstly- That the accused on or about 27/12/1992 at Sangsua Tea Estate committed Gang
Rape on Smt. Rekha Dutta in furtherance of common intention. Thereby committed offence
punishable under Section 376(2)(g) read with Section 34 of Indian Penal Code.

Secondly- That the accused at the same day committed murder of Smt. Rekha Dutta in further
of common intention and thereby committed the offence under Section 302read with Section
34 of Indian Penal Code.

Thirdly- That accused on the same date knowing that offence is punishable by death, made
certain evidence disappear with dead body thrown on railway track with intention of
screening from legal punishment and thereby committed offence under Section 201 of Indian
Penal Code.

The appellants and Jit Kakati were acquitted for all the charges.

However, the HC reversed the acquittal and convicted the Appellants and Jit kakati Under
Sec. 302, 201 r/w 34 sentencing them to life imprisonment. They were acquitted for offence
u/s 376(2)(g) r/w 34. Jit kakati filed a separate criminal appeal which was abated due to his
death and the appellants have approached the SC in the present case for conviction u/s 302
r/w 34 IPC.

MEDICAL REPORT

Post mortem was conducted by Dr. Golap Chnadra Deka (PW11) on 30/12/1992. Medical
report presented before the court stated following injuries:

1. Skull injury with a deep incised wound of size 10cm x 2cm on left side of skull. Frontal,
temporal and parietal portion of skull detached. Brain is not in situ.

2. Area above nose and lip is completely crushed. Right ear is absent and left ear is only
attached with skin.

3. Bruises on forearms, breasts and back of the body.

4. Bruising and swelling in vaginal part of the body.

5. Left arm and right thigh is totally crushed and left leg is detached from the thigh below.

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-Anjan Kumar Sarma v. State of Assam- - Justice L. Nageswara Rao-

6. Multiple fractures on all ribs on both sides of chest.

7. Lacerated injury on right abdominal wall. Ruptured stomach and kidney exposed.

8. No evidence of fresh bleeding.

PW11 on the basis of medical report stated that.

There is evidence of sexual intercourse from the post mortem conducted. Death occurred 24
to 48 hours before post mortem examination due to shock and coma as a result of
craniocerebral injuries.

TRIAL COURT AND HIGH COURT

Prosecution reliance of following Circumstantial Evidence

1. Deceased was seen alive with the company of accused in Bungalow No.17 on the night of
27/12/1992 but not seen alive afterwards.

2. Accused failed to answer the whereabouts of the deceased on the next day i.e. 28/12/1992.

3. The dead body of victim was found on the railway track on 29/12/1992. The said railway
track passes through tea garden where Bungalow No.17 is situated.

4. Rekha was wearing Frock (Ext. 1) when she was last seen with accused and the same has
been found on the dead body when it was discovered from railway tracks.

5. The surgeon (PW11) issuing the medical certificate categorically stated that the death was
caused by ante-mortem incised wound on the skull caused by weapon like Khurki (Ext.3).

6. Recovery of the Khurki (Ext.3) from the bungalow of accused Dhruba Jyoti Bhuyan on
basis of statement made by accused Jit Kakati disclosing the same.

7. Blood stains were found on Khurki and bathroom of Bungalow No.17.

8. Failure of accused to give any explanation on the incriminating circumstances was

considered as missing links for completing chain of circumstances.

The Trial court held that prosecution was unable to prove the charge of 366A IPC against Jit
Kakati as deceased was in company of Jit Kakati of her own volition and after thorough
examination of entire evidence 376(2) (g) was not proved against all accused. The HC
confirmed the findings of the Trial court regarding acquittal under section 366 and 376(2) (g).
The HC held that the onus was of the defence to explain and exculpate when the last seen

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-Anjan Kumar Sarma v. State of Assam- - Justice L. Nageswara Rao-

theory was established and in absence of any such explanation the presumption shall suggest
guilt of the accused. The High Court was conscious of the fact that interference with the
judgment of an acquittal by the Trial Court is unwarranted except when it suffers from the
vice of perversity. There is neither a discussion nor finding recorded by the High Court about
any perversity in the judgment of the Trial Court. The only ground on which the High Court
reversed the judgment of the Trial Court is that the prosecution proved that the accused and
the deceased were last seen together and there was no explanation which led to the
presumption of guilt of the Accused. But it is settled law that the only circumstance of last
seen will not complete the chain of circumstances to record the finding that it is consistent
only with the hypothesis of the guilt of the accused and no conviction on that basis alone can
be founded. The High Court committed an error in holding that in the absence of any
satisfactory explanation by the accused the presumption of guilt of the Accused stood un-
rebutted and the Appellants were liable to be convicted.

JUDGMENTS REFERRED

In Sharad Birdhichand Sarda v. State of Maharashtra1 and M.G. Agarwal v. State of

Maharashtra,2 the court laid down certain factors which are to be taken in account for
circumstantial evidences:

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned 'must' or 'should' and not 'may be' established;

(2) The facts so established should be consistent only with the hypothesis of the guilt of the
accused, that is to say, they should not be explainable on any other hypothesis except that the
Accused is guilty;

(3) The circumstances should be of a conclusive nature and tendency;

(4) They should exclude every possible hypothesis except the one to be proved; and

(5) There must be a chain of evidence so complete as not to leave any reasonable ground for
the conclusion consistent with the innocence of the Accused and must show that in all human
probability the act must have been done by the accused.

1
(1984) 4 S.C.C. 116.
2
A.I.R. 1963 S.C. 200.

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-Anjan Kumar Sarma v. State of Assam- - Justice L. Nageswara Rao-

The state has submitted that the deceased was last seen along with the accused till 9:00 pmon
27.12.1992 and appellant no. 3 when asked by the family said that she is with Jit Kakati
however changed his version later in the day itself.

Further the state submitted that the tea estate was sparsely populated and the railway track is
adjacent, there being no possibility of anybody else committing the crime. Also, the total
denial on part of accused u/s 313 CrPc is a strong circumstance against the accused.

In Jaharlal Das v. State of Orissa,3 the difference between conjuctures from sure conclusions
is of “ may be true” and “must be true”. Therefore, suspicion can not take place of legal
proof.

Further, in Sujit Biswas v. State of Assam,4 it was held that inferences drawn by the court
have to be on the basis of established facts and not on conjectures. The HC in the present
matter inferred that death was caused on 28.12.1992 within the time of 48 hrs as mentioned in
the post mortem report, which is not correct. As the post mortem was conducted on
30.12.1992 at 12:00 noon and the medical expect said that death occurred 24-48 hours prior
to examination, when the maximum time of 48 hours is also taken it would be 12 noon of
28.12.1992. However, the deceased was in company of accused until 9 pm on 27.12.1992.
The inference of the HC that deceased was killed in the night time of 28.12.1992 was not
based on any proved facts. The trial court was correct in holding that there is no proof of
deceased being in captivity of accused after 12noon of 28.12.1992.

Furthermore, the khukri recovered was not supported by any independent witness, the blood
found from the weapon also did not match.

Therefore the court deliberated on whether the last seen theory can be applied or not.

The Supreme Court in the present judgement upheld that the ‘circumstances of last seen
together’ (hereinafter referred as the theory) cannot be the sole basis of holding the accused
guilty of any offence, as there may be number of circumstances and reasons which would
prove otherwise and show divergence from the hypothesis of guilt.

The Apex Court to support this stance have cited various precedents, which has created doubt
over the concept of ‘circumstances of last seen together’. The Supreme Court in the
judgement of Kanhaiya Lal v. State of Rajasthan,5 held that the theory is not sufficient by
3
(1991) 3 S.C.C. 27.
4
(2013) 12 S.C.C. 406.
5
(2014) 4 S.C.C. 715.

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-Anjan Kumar Sarma v. State of Assam- - Justice L. Nageswara Rao-

itself to lead to the conclusion of conviction, there must be something more strong to
establish the connectivity between accused and the crime. Mere suspicion, however strong it
may be and non-explanation on the part of accused cannot maintain conviction against him.

In the another judgment, Arjun Marik v. State of Bihar,6 delivered by the same Court, the
Court held that it is a settled law that the circumstances of last seen will not complete the
chain of circumstances and will be at its best an evidence of the accused having been seen
last together with the deceased and therefore no conviction can be based solely on this basis.

The Court in the judgement of Bharat v. State of Madhya Pradesh,7 discussed that the mere
failure of the accused to offer any explanation on his statement under section 313 of CrPC
alone was not sufficient to establish the charge against the accused.

The Court while accepting the submissions of the defendant has also taken into consideration
the case of Deonandan Mishra v. State of Bihar,8 where the Court held that when sufficient
links have been satisfactorily made out and the circumstances point to the guilt of the
accused, the circumstances of last seen together and absence of explanation would act as an
additional strong links which would help in completing the chain of events.

Also in the case of State of Goa v. Sanjay Thakran,9 the Court held that the circumstances of
last seen together would be a relevant circumstances in a case where there was no possibility
of any other person meeting or approaching the deceased at the place of incident or before the
commission of crime in the intervening period. The time gap between the accused person
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 circumstances
against the accused, and though no straight-jacket formula can be suggested to specify the
time gap it will completely depend upon the given circumstances.

Nonetheless, the Court in the present judgement denied the allegations levied by the
defendants and said that in the wake of present circumstances where sufficient allegations
have not been established sufficiently and satisfactorily the submissions by the defendants
will not be accepted and circumstances of last seen together will not act as the sole ground for
upholding the conviction of the accused.

Therefore, the accused will be given benefit of doubt and his conviction will be set aside.
6
1994 Supp. (2) S.C.C. 372.
7
(2003) 2 S.C.R. 570.
8
(1995) 2 S.C.R. 570.
9
(2007) 3 S.C.C. 755.

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-Anjan Kumar Sarma v. State of Assam- - Justice L. Nageswara Rao-

PRINCIPLE PROPOUNDED

The last seen theory shall be applied in a case when other links have been satisfactorily made
out and circumstances point to the guilt of the accused, the circumstance of last seen together
and absence of explanation would provide an additional link which completes the chain. In
absence of proof of other circumstances, the only circumstance of last seen together and
absence of satisfactory explanation cannot be made the basis of conviction.

GROUP OBSERVATIONS

About judgement –

The High Court committed an error in holding that in the absence of any satisfactory
explanation by the accused the presumption of guilt of the Accused stood un-rebutted and the
Appellants were liable to be convicted. But it is settled law that the only circumstance of last
seen will not complete the chain of circumstances to record the finding that it is consistent
only with the hypothesis of the guilt of the accused and no conviction on that basis alone can
be founded.

About ‘Last Seen Theory’-

1. Time gap should be such as to rule out possibility of somebody else committing the
crime.
2. The circumstance of last seen together is by itself not sufficient for the inference that
the accused has committed the murder.
3. The fact of last seen would be an additional evidence to complete the chain of
circumstances.
4. When the presence of accused is proved, it is his burden to explain the circumstances.
On non-explanation but other evidence being against him a presumption can be
drawn.
5. According to section 106 of IEA, any fact is especially with the knowledge of a
person the burden of proving that fact is upon him. Therefore, the accused has to
explain the circumstance and if unable to do so the court can consider it as additional
link which completes the chain.
6. ‘Last seen together’ is a weak evidence by itself and has to be corroborated with other
evidences.

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