Indian Penal Code, 1860 – Section 120B, 302, 323 – Explosive Substances Act, 1908 – Section 3(a) and 4(b)(i) – Unlawful Activities (Prevention ) Act, 1967 – Section 10(b)(i) and 13(1)(a) – Bomb Blast – Conviction set aside – Bomb Blast killing 13 persons including 10 children on the spot, while grievously injuring 19 to 20 persons – Appeal against conviction – Circumstantial evidence not formed complete chain – No certificate with regard to the call records – Retracted confessional statement – Held: Prosecution has not been able to conclusively prove the guilt of the appellants, as there is no continuous chain of circumstantial evidence, with regard to the hypothesis that the appellants had hatched a conspiracy and had blasted the bomb on the fateful day. Conviction of appellants set aside. (Para 81, 93, 99, 101)
In this case, the circumstantial evidence do not form an unbroken chain that leads to the only possible inference that the appellants are guilty of the crime. In fact, there is no evidence at all, except the statements made under Section 164 Cr.PC, which are not supported/corroborated by evidence. Further, the Judicial Officer recording the same, has not given reasons for believing the same were made voluntary, as required in law. (Para 81)
The evidence recorded by the learned Trial Court does not show that Hemen Gogoi had voluntarily given shelter to any ULFA member in his house, inasmuch as, the evidence of PW-30, who is the sister-in-law of Hemen Gogoi is to the effect that some four or five boys had gone to their house and threatened her that if food was not given to them, she would face consequences. (Para 89)
In the present case, there being no certificate with regard to the call records allegedly made by the appellants with their mobile phones, there is no proof with regard to who they had called and the CDR, if any, is accordingly inadmissible in evidence. Further, there is nothing to show as to what they had stated in their conversation, connecting them in any manner to the bomb blast that had occurred. As there is no certificate in terms of Section 65-B, any secondary evidence pertaining to the said electronic record is in-admissible in evidence. (Para 93)
In the present case, the prosecution has not been able to establish a prima facie case against the accused persons in the first instance and the retracted confessional statement of Jatin Dowari only gives rise to a suspicion and it is by no means an establishment of any fact pointing towards the guilt of the accused Jatin Dowari having any knowledge that a bomb would have been planted in the Dhemaji College field. (Para 99)
In the present case, the prosecution has not been able to conclusively prove the guilt of the appellants, as there is no continuous chain of circumstantial evidence, with regard to the hypothesis that the appellants had hatched a conspiracy and had blasted the bomb on the fateful day in the Dhemaji College Field. (Para 100)
GAUHATI HIGH COURT
2023 STPL(Web) 55 Gauhati
[GAHC010183732019]
Smt. Dipanjali Borgohain And 2 Ors. Vs. State Of Assam
Crl.A. 311 of 2019 ; Crl.A. 305 of 2019 and Crl.A. 365 of 2019-Decided on 24-8-2023
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