K. Lahiri, J.
1. The case is entirely dependant on 'Circumstantial evidence' as opposed to what is styled as 'direct evidence'. 'Circumstantial evidence' ordinarily means a fact from which some other fact is inferred, whereas, 'direct evidence' means testimony given by a person as to what he has himself perceived by his own senses. All evidence is either 'direct' or 'circumstantial'. It will be noticed that direct evidence means 'direct assertion' whereas 'circumstantial evidence' means a fact on which an inference is to be founded. Direct evidence is the testimony of a witness to the existence or non-existence of a fact or facts in issue. By circumstantial evidence is meant the testimony of a witness to other facts i. e.. facts other than those in issue which are of course relevent facts from which the fact in issue may be inferred. As to the admissibility both forms of evidence stand, generally speaking, on the same footing, and the testimony, whether the 'factum probandum' or the 'facta probantia' is equally as original and direct. In the abstract sense, direct evidence is of superior cogency in so far as it contains only one source of error, fallibility of testimony, whereas in addition, circumstantial evidence may suffer from fallibility of inference. But when circumstances connect themselves closely with each other, when they form a large and strong body, so as to carry conviction to the mind of a Judge, it may be proof of a mere 'satisfactory sort' than that which is direct. When the proof arises from the irresistible force of a number of circumstances which we cannot conceive to be fraudulently brought together to bear up one point that is less fallible than under some circumstances direct evidence may be. It is often said 'facts cannot lie' but men can. When we derive knowledge of a fact through the medium of a witness, the truth of the facts depends upon the honesty and truthfulness of the witness. Therefore, evidence which proves or tends to prove the factum probandum indirectly, by means of certain inferences or deduction to be drawn from its existence and its connection with other 'facta probantia', it is called circumstantial evidence. The force of the evidence does not depend merely on the credit attached to the 'factum prbbandam' but to the result which by a process of Reasoning it indirectly establishes in the mind of the Judge. It is sometimes styled as collateral evidence or presumptive evidence. When we infer or presume things from the collateral circumstance the nature of the evidence is styled as collateral evidence.
2. It is a common fallacy to assert that circumstantial evidence is of an inferior and less safe quality than direct evidence. Of course, if direct, evidence is credible it is superior to any other class and more satisfactory to the judicial mind. However, it must be borne in mind how very easy it is to fabricate direct evidence, how simple a matter it is for a witness to swear falsely ''I saw 'X' dealing the fatal blow'. On the contrary a connected and consistent chain of circumstantial evidence can with difficulty be concocted: and the concurrence of many minute facts is often far more cogent than the oral testimony of a host of personal witnes- ses. It is often stated that circumstances cannot lie. It is also equally fallacious, as appears from every day's experience. Circumstances do lie most cruelly. The innocent often succumbs to the unfounded suspicions from circumstances which appear to tell strongly against him the true bearing which the accused has neither the opportunity, nor often the means to explain. The truth is that either kind of the evidence has its peculiar excellencies and defects. For the purpose of the case I enumerate the following rules governing admissibility and use of circumstantial evidence :
Rule 1 : The facts alleged as the basis of any legal inference must be clearly proved and indubitably connected with the 'factum probandum'.
Rule 2 : The burden of proof is always on the party which asserts the existence of any fact which infers legal accountability.
Rule 3 : In all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits.
Rule 4 : In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt
Rule 5 : If there be. any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
3. In the instant case the fact in issue is whether the deceased was murdered by the accused. The fact in issue is wught to be established from the following circumstances.
(a) the accused was seen standing by the dead body of Baijnath with a lathi in hand around 8 A, M, by P. W, 2 Baturam and P. W. 3 Luthu Orang (b) the accused made unvocalized gesture to P, W. 2 Baturam as if not to raise any noise: and. (c) 'the lathi' had bloodstains, All these elements if coalesced together make a chain, which in the ordinary course of nature, would justify an inference of guilt against the accused. The inculpatory facts are incompatible with the innocence of the accused and incapable of any other explanation upon any other reasonable hypothesis than that of his guilt. In the instant case barring denial we do not find any explanation emanating from the accused. Amongst the three elements the last element (c) is fatal. The first two elements (a) and (b) by themselves might not have established the guilt of the accused beyond reasonable doubt. The conclusion of guilt is primarily dependent on the third element. Proof of the fact that the staff which the accused had with him was stained with blood belonging to the same group as that of the deceased could have clinched the issue that it was the weapon of assault, If, on the other hand, it is established that the staff had no trace of human blood or flesh, the natural conclusion must be that the lathi had nothing to do with the offence. In that event the result will be that the accused though seen with a lathi and signallina something was in fact carrying an instrument which had nothing to do with the offence in question. Standing by the side of the deceased but holding an inculp-able lathi cannot be treated as a fatal circumstance, In view of the nature of the bleeding injury on the deceased and the absence of bloodstains on the lathi establish that (a) the lathi was not the weapon of assault, and (b) the accused was not the killer.
4. Therefore, let me concentrate on the following : Whether (i) 'the lathi' was seized by the prosecution; (ii) it was in the possession of the police; (iii) it was produced and exhibited in Court; (iv) the lathi was sent to an expert for examination to establish that it was stained with human blood or blood. The indubitable prosecution case is that the lathi was seized from the accused, taken possession by the police and exhibited in court. However, the prosecution never made an effort to produce any evidence to establish that the staff was stained with blood and/or human blood. When the prosecution seized the lathi, had it in its possession but failed to prove that it had traces of human blood on it, the reasonable deduction is that the prosecution has failed to discharge its burden of proving the circumstances, which was entirely and exclusively upon it. It was obliged to establish that the lathi was the weapon of assault. The nature of the injury has been deposed by P. W. 1 Dr. N, C. Pegu. It appears from his evidence that the facial bones were fractured at several places by a crushing blow with a heavy weapon; left maxilla was fractured into two pieces which covered an area measuring 3' x 5' x 1 1/2', the nasal bone was fractured and left mandible was broken to pieces. That the injuries inflicted would have certainly left traces on the weapon of assault is beyond any doubt. On proof of the circumstance with the aid of the two elements the guilt of the accused would have been proved to the hilt. On the other hand, failure or neglect to prove the third element by the prosecution creates a void and the entire chain snaps. It is hardly possible, to draw a conclusion of guilt. The default of the prosecution can be said to be intentional and it must be held that the prosecution has kept back or withheld vital evidence. It is a vital omission on the Part of the prosecution from which a reasonable conclusion can be drawn that if the staff was sent to an expert, the result would have been in favour of the accused. I draw the conclusion that the failure of the prosecution to prove that there were traces of blood, hair or skin on the lathi, which the prosecution could have with a slightest effort established is a vital lacuna, destructive of the first two circumstances. It establishes that the lathi was innocuous and was not the weapon of assault. Therefore, the entire chain of circumstances is snapped and the conclusion of guilt of the accused cannot be brought home. The maxim 'res ipsa loquitur' (the thing speaks for itself) is directly applicable In the instant case. The circumstance that the accused was found immediately after the incident by the side of the accused (deceased ?) carrying a lathi which had no bloodstains speaks for itself that the lathi was not the weapon of assault. This fact negatives the culpability of the accused. The circumstance turns in favour of the accused. Standing at the place of occurrence with a lathi which was not the weapon of assault clearly establishes the fact that the accused did not deal the blow but someone did it with another weapon.
5. Let me now turn to the first two elements. These were sought to be proved by P. Ws. 2 and 3 Baturam and Luthuram respectively. To pin implicit faith on their testimony is difficult. The incident occurred near their house; they were themselves suspects. Admittedly the relation of the deceased Keshab Singh came to the place of occurrence as will be noticed from the inquest re- port (Ext. 2). The said Keshab has not been examined to corroborate the evidence of P. Ws. 2 and 3. The circumstantial evidence that the accused was seen near the dead body was sought to be established by the uncorroborated testimony of two personal witnesses. They are brothers, Both of them were under cloud. P. W. 3 was declared hostile. Further, prosecution gave two versions about the time of occurrence. P. W. J. N. Gogoi, the police officer proved that the incident happened at 6 A. M. whereas P. Ws. 2 and 3 stated that they saw the accused standing by the side of the dead body around 8 A. M. It clearly shows that the accussed was seen by P. Ws. 2 and 3 about two hours after the murder. There is another interesting fact destructive of the entire circumstantial evidence. The police got the information, went to the place of occurrennce, made local enquiry and held inquest, prepared an inquest report wherein P. W. 3 Luthu was shown as a witness, thereafter, the police officer lodged an eiahar Ext. 4. In the ejahar there is no indication of P. W. 2 or P. W. 3 saw the accused standing with a lathi or the said witnesses made any statement to the first informant about the said incident. For a matter of that the names of these two witnesses do not find a place in the eithar as witnesses of any occurrence. It follows, therefore, that even during the enquiry made thy the police, P. Ws. 2 and 3 did not make any statement about the circumstances (a) and (b). In view of these circumstances I have no hesitation in coming to the conclusion that the prosecution has hopelessly failed to prove circumstances (a), (b) and (0.
6. Another piece of evidence was sought to be proved against the accused. It is alleged that the accused made an extrajudicial confession before the I. O., J. N. Gogoi. The alleged confessional statement was said to have been recorded in the General Diary No. 219 but it has not been proved and no explanation offered for its non-production. As such, the secondary evidence is inadmissible. Secondly, this alleged confession to a police officer is inadmissible.
7. These are the reasons for which we allowed the appeal on 21-5-1981, set aside the conviction and sentences, acquitted the appellant and directed that reasoned judgment would follow,
S.M. Ali, J.
8. This appeal arises from the judgment, conviction and sentence passed by Sri N. Das, Sessions Judge, Dibrugarh in Sessions Case No. 70 (D)/ 1975, convicting the accused appellant under Section 302, Indian Penal Code and sentencing him to life imprisonment and to pay a fine of Rs. 100/- in default R. I. for one month.
9. Briefly stated the prosecution case is that in the morning of 12-11-1974 accused appellant Chauna Oran assaulted deceased Baijnath Singh and beat him to death with a bamboo stick. This happened on the Holdibari Road under Moran Police Station. The incident took place at about 6 A. M. and after the incident the accused appellant being accompanied by p. W. 4 Jadev Chandra Lahan appeared at Moran Police Station at about 8.30 A. M. on the same day and informed the Police Officer in charge of the Police Station that he had murdered the deceased with the help of the bamboo stick. While giving this statement the accused appellant handed over the stick to the Police Officer, who seized it. The statement of the accused appellant was entered into the G. D. being Entry No. 219 of the date and then the Police Officer proceeded to the place of occurrence and took necessary steps in connection with the investigation. On the same day after completion of the investigation P. W. 6 Jitendra Nath Gogoi, Officer in charge of the Police Station, drew up a report, Ext, 4 stating that he had 'locally enquired about, the fact and found that Sri Chauna Orang of Maharani Haldhibari assaulted one Baijnath Singh with a lathi on the Haldhibari Road and for which said Baijnath died at the spot.' He therefore wanted the case to be registered under Section 302, I.P.C.
10. At the trial the accused appellant was charged under Section 302, Indian Penal Code. Six P. Ws. were examined and cross examined, the accused being indigent was given legal aid for his defence. The learned Sessions Judge relied on the prosecution evidence and convicted and sentenced the accused appellant as aforesaid.
11. In this appeal it has to be seen whether the conviction and sentence have been passed rightly. At the inception it can be said that the case has 1981 Cri.L.J./lQ5 XI not been proved against the accused beyond reasonable doubt. The learned Sessions Judge appears to have mis-appreciated the evidence on record and convicted the accused. There has been no eye witness to the occurrence. The only piece of evidence, going against the accused is that he was seen by P. W. 2 with a stick in the hand near the fallen body of the deceased on the road. But. even this piece of evidence suffers from infirmity. His evidence is that while he was working in his 'bari'. he suddenly heard a sound like the bleating of a goat. He rushed out on the road and found 'the accused Chuana standing nearby with a lathi in hand'. As the witness saw the accused the latter asked him not to raise a noise. Thereat the witness left for home. He further stated that immediately after he had been to the place of occurrence his elder brother P. W. 3 Luthu Orang also went there and saw the accused near Baijnath who was lying on the road. None of the witnesses raised any alarm out of fear of the accused. Here it is not clear whether the witness ran out of his 'bari1 on hearing the bleating of a real goat or whether he had come out on hearing any cry emanting from the deceased. If it was a bleating of a goat it can be said that the incident was not connected with that sound and that it might have taken place even earlier and not at the time when the sound reached the ears of the witnesses, It is next found that P. W. 3 Luthu Orang does not corroborate P. W. 2 so far as the presence of both the witnesses was there simultaneously. P. W. -2 who was ploughing in the nearby field (about 20 nals away) around 8 A. M. heard the cry in the direction of his house. He ran up to the house and then to the road and saw the body of a man lying by the side, of the road. He did not go in that direction out of fear. It was the body of Baiinath. He did not see anyone near the body. This witness was declared hostile by the prosecution that cross-examined him. His notice was drawn to the statement made by him before the police that on hearing thus he had come to the gate and had seen Chuana Orang leaving the place where Baiinath was lyingf. While P. W. 3 Luthu Oran therefore testified that there was nobody near the body of Baijnath, he was not given any suggestion by the prosecution that along with him P. W. 2 was also there. So, there is no corroboration of the presence of P. W. 2 at the place of occurrence -just after the occurrence. Then P. W. 4 Yadav Lahan does not support prosecution story that he accompanied the accused to the Police Station after the occurrence. P. W. 4 was declared hostile by the prosecution and was cross-examined and his attention was drawn to his statement made before the Police Officer that the accused appellant had gone to him and informed him that he had finished Baijnath Singh at 6 A. M, finding him alone on the Haldibari road and that this he did with a lathi. Now, as regards the episode that the accused appellant proceeded to the Police Station after committing the crime and surrendered himself and the weapon of offence to the Police Officer, the prosecution tried to substantiate this by the testimony of P. W. 5 Nabab Firoz Ahmed who says that at about 9 A. M. of a day in 1974 the accused appellant appeared at the Moran Police Station with a bamboo stick in the hand, that the witness followed the accused appellant out of curiosity to the premises of the police station and was a witness to the accused appellant confessing to the Police Officer that he had killed Baijnath Singh with that Lathi and to the seizure of the lathi (M. Ext. 1). In view of the behaviour pattern of the ordinary village people it cannot be comprehended as to why the witness felt the curiosity of following a man to the Police Station who was carrying lathi in the hand which is a common feature of the village life. The police officer himself admits in the evidence that he did not take signature of either the accused or the man accompanying him (P. W. 3), while he took the signature of P. W. 5 in the seizure list of lathi. In his explanation the police officer says that the man accompanying the accused left the Police Station immediately after the accused surrendered himself. This is not corroborated, by- P. W. 5. Again it is found that the occurrence took place according to the prosecution version around about 6 A. M. The police station was about 10 miles away from the place of occurrence, The accused and P. W. Lathu Orang. al- legedly appeared at the Police Station at 8.30 A.M. Taking the pace of walk of these 2 persons at the maximum it is doubtful whether it was possible for them to cover this distance within this short span of time.
12. In this connection what was used at the trial as the first information report is the report made by the investigating officer (p. w. 6) after completion of the investigation (Ex. 4V but clearly enough this cannot be F. I.R. in the case. The F. I.R. is really the G. D. entry made by the Police Officer being No. 219 because that was first in point of time regarding a cognizable offence. But strangely enough this G. D. entry was not produced at the trial. Though F. 1 R. is not substantive evidence, it is an important statement about the incident, being first in point of time mentioning a cognizable offence. So it appears that the very foundation of the case was withheld at the trial.
13. The learned Sessions Judge used some of the statements of the hostile witnesses made before the police as substantive evidence for corroboration of the prosecution story. Secondly he used the alleged G. D. entry No. 219 as corroborating evidence in favour of the prosecution. Thirdly he relied on circumstantial evidence consisting firstly in the evidence of PW 2 who found the accused appellant near the fallen body of Baijnath, secondly the statement of PW 3 made before the police that he saw , the accused appellant leaving the place where Baijnath was lying on the road and thirdly the accused appellant proceeding to the police station and surrendering and making a clean breast of the incident before the Police Officer. But all these are not such as to form a uniform chain of circumstances without break of missing links which can lead to the exclusive inference without any alternative hypothesis that it was none else but the accused appellant who killed the deceased. The circumstantial evidence must be consistent with the guilt of the accused and inconsistent with the innocence of the accused at the same time, in order to establish the guilt of the accused. Here the first .circumstance is doubtful, the second one is inadmissible for the purpose of corroboration and the third one is also doubtful. In this view, the prosecution case has not been established by the circumstantial evidence referred to , above.
14. Turning to the evidence of doctor we find that there were (1) one lacerated wound 2'xi' bone deep in between the nose and upper lip with blood clot present. (2) One lacerated wound 3'xi'x bone deep just below the left side law. (3) bruise over the left cheek 4'x2', found on the dead body of Baijnath at the autopsy. In the opinion of the doctor the person died of shock and haemorrhage as a result of the injuries sustained. But the medical officer did not state the type and nature of the weapon used nor did he say about the age of the injuries.
15. So, it is found that the evidence on record does not bear up the prosecution case that the accused appellant assaulted Baiinath on the road and caused h's death with the help of a lathi. There is no gain-saying the fact that the prosecution case suffers from such infirmities as to give rise to a reasonable doubt about the gulit of the accused. It is therefore found that the accused is entitled to the benefit of reasonable doubt. Hence we .set aside the judgment, conviction and sentence passed by the learned Sessions Judge and acquit the accused by way of benefit of doubt.