IN THE COURT OFSESSIONS JUDGE, KAMRUP DISTRICT AT GUWAHATI

PRESENT : Sri Dilip Kumar MahantaSessions Judge, Kamrup District,Guwahati

Sessions Case No. 60 (K-G) of 2010

10-02-2014

By this order I propose to answer the issue as to wheth-

er there are materials on record to frame charge against ac-

cused Ripun Bora and Pulin Phukan.

In short, the relevant facts of the case are as follows :

On the night of 27-09-2000, Daniel Topno, a popular tea

tribe leader of Sonitpur District was murdered on the road

by some unknown persons while he was coming home riding

on his bicycle. Regarding the said incident, on the basis of

the F.I.R. filed on the date of incident itself, by one Sri

Manik Dhara, Gohpur P.S. Case No. 183 of 2000, U/S 302

of I.P.C. was registered. Initially, the case was investigated

by Assam Police but later on, the investigation of the case

was handed over to C.I.D., Assam. Subsequently, the C.I.D.

submitted charge-sheet in respect of the said case in the

Court of S.D.J.M., Biswanath Chariali, against two persons,

namely, Narayan Gour and Uma Kanta Mizar alias Kale Mizar.

In the charge-sheet, the second accused was shown as an ab-

sconder.

While the case was being investigated by C.I.D., San-

tosh Topno [brother of the deceased] filed W.P.(C) No. 6198

of 2000 in the Gauhati High Court, with the prayer to hand

over the investigation of the case to C.B.I. The said petition

was disposed of by the Hon'ble High Court on 17-05-2005 dir-

ecting the C.B.I. to investigate the case. Thereafter, the

State of Assam filed the Review Petition No. 82 of 2005 in

the Hon'ble High Court praying for recalling the order of

C.B.I. investigation on the plea that C.I.D. had already com-

pleted the investigation and submitted charge-sheet against

two persons on 30-10-2004.

The said Review Petition was disposed of on 26-08-2005

and the Hon'ble High Court maintained its earlier order on

the consideration that C.B.I. had already started investiga-

tion of the case as per the order of the Hon'ble High Court.

On the basis of the order of the Hon'ble High Court,

C.B.I. registered the F.I.R. No.RC-5/S-2005-Kolkata and after

completion of the investigation, submitted charge-sheet

against accused Ripun Bora, Kamal Nath alias Ankur Nath and

Pulin Phukan. On the basis of the said charge-sheet, vide or-

der dated 01-09-2012, the Additional Sessions Judge, Kam-

rup, Guwahati, framed charges of murder with conspiracy

against all the three accused, above named.

It appears from record that the said order of framing

charge against them was subsequently challenged in the

Hon'ble High Court by accused Ripun Bora and Pulin Phukan

(Crl. Petition No. 579 of 2012 and Crl. Petition No. 828 of

2012). The said two petitions were disposed of by the

Hon'ble High Court vide order dated 11-06-2013 by which the

impugned order dated 01-09-2012 framing various charges

against the accused petitioners was quashed and the case

was remanded to the trial Court for fresh decision.

The Hon'ble High Court was of the view that the learned

Additional Sessions Judge, Kamrup, framed charges against

the accused persons solely on the basis of the charge-sheet

submitted by the C.B.I. without looking at the merit of the

charge-sheet that was earlier filed by the C.I.D. In the opin-

ion of the Hon'ble High Court, in view of the case of Vinay

Tyagi -Vs- Irshad Ali alias Deepak and Ors. [2013

[ 2 ]

Crl.L.J. 754], it would be proper for the learned Judge to go

through both the charge-sheets filed by C.I.D. and C.B.I. and

to compare the merits and demerits of the case before tak-

ing a decision regarding framing of charges.

As the charges framed against the accused persons was

quashed and the case was remanded for fresh decision, the

Hon'ble High Court also passed order for transfer of the in-

stant case from the Court of Additional Sessions Judge, Kam-

rup, Guwahati, to this Court, so that the case can be re-ex-

amined with an open mind.

Subsequently, vide order dated 13-08-2013, passed in

connection with Crl. M.C. No. 613 of 2013, the record of

G.R. Case No. 458 of 2000, pending in the Court of S.D.J.M.,

Biswanath Chariali, was directed to be transmitted to this

Court for enabling to compare the charge-sheet filed by

C.B.I. with the earlier charge-sheet filed by C.I.D., Assam.

During the course of hearing in this Court, accused

Kamal Nath took the plea that he was a juvenile at the time

of the alleged incident. After going through the evidence of

all the witnesses examined by the aforesaid accused peti-

tioner in respect of his plea of juvenility and also taking into

consideration the report of the Medical Board constituted for

determination of the present age of accused Kamal Nath,

this Court vide order dated 18-12-2013, held that on the

date of incident, i.e. on 27-09-2000, accused Kamal Nath

was a juvenile. Accordingly, he was directed to appear be-

fore the Juvenile Justice Board and the Board was directed

to take up the follow up action as per law in respect of the

said accused.

I have heard submission of learned counsels appearing

for C.B.I. and accused Ripun Bora and Pulin Phukan. I have

also perused the case diary and the connected records in re-

[ 3 ]

spect of charge-sheet filed earlier by C.I.D. including the en-

tire record and documents filed along with the charge-sheet

that has been filed by the C.B.I.

The learned counsel appearing for C.B.I. has referred to

the following cases in support of his submission that there

are materials on record to frame charge under the relevant

Sections of Indian Penal Code against accused Ripun Bora &

Pulin Phukan.

1. Soma Chakravarty -vs- State through CBI(2007) 5 Supreme Court Cases 403

2. Rajbir Singh -vs- State of U.P. & Another(2006) 4 Supreme Court Cases 51

3. Yogesh alias Sachin Jagdish Joshi -vs- State of Maharashtra(2008) 10 Supreme Court Cases 394

4. Gagan Kanojia & Another -vs- State of Punjab(2006) 13 Supreme Court Cases 516

5. Suman Sood alias Kamal Jeet Kaur -vs- State of Rajasthan(2007) 5 Supreme Court Cases 634

6. State of M.P. -vs- Bhagwan Singh & Another2002 Cri. L. J. 3169

7. Abdulvahab Abdul Majid Shaikh & Others -vs- State of Gujar-at

(2007) 9 Supreme Court Cases 293

8. Ravidran alias John -vs- Superintendent of Customs(2007) 6 Supreme Court Cases 410

9. State through CBI -vs- Dawood Ibrahim Kaskar & Others(2000) 10 Supreme Court Cases 438

10. State of Orissa -vs- Debendra Nath Padhi(2005) 1 Supreme Court Cases 568

11. Umar Abdul Sakoor Sorathia -vs- Intelligence Officer, Narcot-ic

Control Bureau [(2000)1 SCC 138]

12. Amit Kapoor -vs- Ramesh Chander & Another(2012) 9 SCC 460

13. State of Maharashtra -vs- Damu(2000) 6 Supreme Court Cases 269

[ 4 ]

14. Vasa Chandrasekhar Rao -vs- Ponna Satyanarayana(2000) 6 Supreme Court Cases 286

On the other hand, the defence has relied on the fol-lowing case laws :

(a) Yogesh alias Sachin Jagdish Joshi -vs- State of Maharashtra (2008) 10 Supreme Court Cases 394

(b) Dilawar Balu Kurane -vs- State of Maharashtra(2002) 2 Supreme Court Cases 135

(c) Suresh Budharmal Kalani @ Pappu Kalani -vs- State of Maha-rashtra AIR 1998 SC 3258

(d) Pancho -vs- State of Haryana (2011) 10 Supreme Court Cases 165

(e) Pakala Narayana Swami -vs- Emperor AIR 1939 Privy Council 47

(f) Suresh Chandra Das -Vs- The State of MeghalayaAIR 1971 Assam and Nagaland 146

(f) Haricharan Kurmi –vs- State of BiharAIR 1964 Supreme Court 1184

(h) Balbir Singh –vs- State of Punjab AIR 1957 Supreme Court 216

(i) Palvinder Kaur –vs- State of Punjab AIR 1952 Supreme Court 354

(j) Aghnoo Nagesia –vs- State of Bihar AIR 1966 Supreme Court 119

(k) Ramachandran –vs- Udaykumar & OthersAIR 2008 Supreme Court 3102

(l) Rama Chaudhary –vs- State of Bihar(2009) 6 Supreme Court Cases 346

(m) T.T. Anthony –vs- State of Kerala & OthersAIR 2001 Supreme Court 2637

(n) Punjab And Haryana High Court Bar Assoiation –vs- State of Punjab (1994) 1 Supreme Court Cases 616

(o) Harshendra Kumar D –vs- Rebatilatha Koley(2011) 3 Supreme Court Cases 351

(p) Phulu Goswami –vs- State of Assam & Another2012 (1) GLT 397

(q) State of Madhya Pradesh –vs- Sheetla Sahai & Others(2009) 8 Supreme Court Cases 617

[ 5 ]

(r) Mitthulal & Another –vs- State of Madhya PradeshAIR 1975 Supreme Court 149

The submission of the defence side is that the proper

way to approach a case involving confession of a co-accused

is, first, to marshal the evidence against the accused exclud-

ing the confession altogether from consideration and see

whether, if it is believed, a conviction could safely be based

on it. If it is capable of belief independently of the confes-

sion, then it is not necessary to call the confession in aid.

Cases may arise where the judge is not prepared to act on

the other evidence as it stands even though, if believed, it

would be sufficient to sustain a conviction. In such an event,

the judge may call in aid the confession and use it to lend

assurance to the other evidence and thus fortify himself in

believing what without the aid of the confession, he would

not be prepared to accept.

According to their contention, in the case in hand,

apart from the confession of co-accused Kamal Nath there is

no other evidence connecting the other two accused namely,

Ripun Bora and Pulin Phukan with the charges levelled

against them. The learned defence counsels further urged

that where the only evidence before the Court is the confes-

sion of the co-accused, it will have to be presumed that

there is no legal evidence warranting the framing of charge.

It may be taken notice that in the charge-sheet filed by

C.I.D., out of two accused against whom charge-sheet was

submitted, namely, Narayan Gour and Uma Kanta Mizar alias

Kale Mizar, the relevant record of the Court of S.D.J.M.,

Biswanath Chariali, reveals that due to death of accused

Narayan Gour, the case against him now stands abated.

[ 6 ]

It also appears that the other accused Uma Kanta Mizar,

who was shown as an absconder in the charge sheet filed by

C.I.D. is yet to be arrested and brought to trial. The charge-

sheet of the aforesaid case also divulges that Ripun Bora,

who was arrayed as an accused during investigation of the

case, was however, not sent up for trial.

As per version of the charge-sheet filed by C.B.I., de-

ceased Daniel Topno was a crucial factor in the Assembly

Election from Gohpur Constituency. According to them, in-

vestigation has revealed that Late Daniel Topno was a popu-

lar social figure in the tea garden belt due to his various so-

cial works including establishment / running of Middle Edu-

cation School viz. Uttar Chatrang M.E. School. He was the

Head Master of the school right from the time of its estab-

lishment. He had also unsuccessfully contested the Assembly

Election in 1991 and 1996 as Independent candidate and also

as Congress (Tiwari) candidate. He was in a position to se-

cure large number of votes from the tea garden workers. He

was preparing himself to contest the Assembly Election in

the year 2001 in which, ultimately, Shri Ripun Bora from

Congress Party was elected.

According to C.B.I. version, investigation has also

brought out that Daniel Topno had become a crucial factor

in the Assembly Election from Gohpur Constituency as seen

from the previous election results. Daniel Topno secured

7658 votes in 1991 Assembly Election and 10,661 votes in

1996 Assembly Election from Gohpur Constituency. In 1996

election, Ganesh Kutum (AGP) secured 33,664 votes as

against 31,131 votes secured by Ripun Bora (Congress). It is,

therefore, clear that Daniel Topno by securing of 10,661

votes had tilted the scale in favour of AGP candidate and

had caused the defeat of Ripun Bora. Cornering substantial

number of votes in the 1991 / 1996 Assembly Election by

Daniel Topno has thus tilted the scales in favour of Congress

[ 7 ]

or AGP. Thereby the contesting of Daniel Topno in the As-

sembly Election that was to be held during 2001 would have

been a decisive factor to decide its outcome. Before the As-

sembly Elections of 2001, Daniel Topno was approached by

Ripun Bora, Mani Kumar Subba and others to join the Con-

gress Party. However, prior to his death, Daniel Topno was

in touch with AGP but had not decided anything whereas to

join Congress or any other political party.

After death of Daniel Topno on the night of 27-09-2000,

while the case was being investigated by C.I.D., one local

newspaper namely, ‘Ei Saptaha’ reportedly published a news

report on 09-03-2006 about certain disclosures made by

Kamal Nath about the Daniel Topno murder case and his in-

volvement in the said case. Based on the information pub-

lished in the newspaper, suspect Kamal Nath was accordingly

contacted by the Investigating Officer on 28-06-2006 for the

first time. Subsequently, 29-05-2007, statement of Kamal

Nath was recorded U/S 164 of Cr.P.C. by Smti. M. Dutta,

Special Judicial Magistrate, Guwahati.

In his afore said statement, accused Kamal Nath has

disclosed that during the relevant time, he was engaged as

driver of Krishna Hazarika from the year 1999 to 2002. In the

month of January, 2000, Krishna Hazarika took him to Chil-

arai Hotel situated at Guwahati. In the said hotel, he along-

with Bishnu Saikia and Krishna Hazarika, went to the upstairs

of the said hotel and he was introduced to Ripun Bora and

Mani Kumar Subba by Krishna Hazarika. He was also re-

portedly informed that Ripun Bora would fight Assembly

Election from Gohpur Constituency and Mani Kumar Subba

would fight M.P. Election from Lakhimpur Constituency. He

was present when there was a discussion going on between

Krishna Hazarika and Mani Kumar Subba and Ripun Bora. Dur-

ing that conversation Mani Kumar Subba offered rupees ten

lakh saying that Daniel Topno should be killed. Krishna Haz-

[ 8 ]

arika then told that rupees ten lakh would be a small

amount and then Ripun Bora said that if he wins the elec-

tion, he would pay rupees fifteen lakh but if he loses the

election, then he would pay only rupees seven lakh. Along-

with Mani Kumar Subba, one person in civil dress was

present and he handed over a bag containing rupees twelve

lakh to Krishna Hazarika. At that time, accused Pulin Phukan

was also present at that place. Krishna Hazarika then handed

over the bag to him and thereafter, he alongwith Bishnu

Saikia came out of the hotel room.

After sometime, Krishna Hazarika also came out and

handed over rupees two lakh to him in two bundles. He kept

the money in a VIP suitcase and put the said luggage in the

back seat of the TATA Sumo vehicle. Thereafter, he along-

with Krishna and Bishnu, came to Eden hotel where Bishnu

handed him a bundle of rupees two lakh with instruction to

donate the said money to some religious institutions such as

Kamakhya Mandir, Deosal Mandir and to some orphanage.

The rest of the money was instructed to handover to Smti.

Pinki Hazarika [Wife of Krishna Hazarika]. During his stay in

the said hotel for several months, Krishna Hazarika and Bish-

nu came there several times.

After some months, one day, he alongwith Bishnu Saikia

and Krishna Hazarika went to Gohpur in a TATA Sumo vehicle

and reached Gohpur around 2 a.m. night. At that place,

Krishna Hazarika showed them the residence of Ripun Bora

and Pulin Phukan. They reportedly stayed for the night in

the residence of Pulin Phukan. On the next day afternoon,

he heard Pulin Phukan telling Krishna Hazarika to bring one

or two Siprang (Digging implement made of iron) from the

house of Narayan Gour and to place these instruments at the

place of murder. Bishnu Saikia disclosed that he would kill

Daniel Topno around 4 p.m. On that day, Krishna Hazarika,

Bishnu Saikia and Pulin Phukan reportedly went to Arunachal

[ 9 ]

Pradesh Boarder leaving Kamal Nath in the residence of Pulin

Phukan. During the night, they returned back and instructed

Kamal Nath to sit in the driver’s seat. Pulin Phukan re-

portedly brought one Siprang like instrument and one Khukri

from his residence and boarded the vehicle. During the time,

when he was driving the vehicle, he heard some disagree-

ment amongst Bishnu, Krishna and Pulin regarding murder of

Daniel Topno. All of them thereafter, reportedly came to the

house of Narayan Gour and from the residence of Narayan

Gour, Pulin Phukan reportedly brought one Sandal and there-

after, all of them went near the residence of Daniel Topno.

Near the railway line, the vehicle was stopped and all of

them got down from the vehicle. Kamal and Bishnu sat down

on the railway line, and then they heard voice of Krishna

Hazarika and an unknown person.

Later on, he came to know that the voice of the un-

known person was of Daniel Topno. Thereafter, he alongwith

Bishnu went near to the place of occurrence and there he

saw Krishna Hazarika hitting Daniel Topno on his shoulder by

means of a Belcha [shovel]. The blow was intended for the

victim’s head but it hit him on his shoulder. Thereafter,

Daniel Topno was chased down and was beaten by Krishna

Hazarika. As a result, Daniel fell down on the ground.

Krishna Hazarika carried one AK-47 weapon but he did not

use it. Krishna Hazarika then took out two Khukri and gave

several blows on various parts of Daniel Topno. When the

victim started raising hue and cry and the villagers came

running, they all moved away from that place. While Pulin

Phukan ran away from the spot, Kamal Nath, Krishna Haz-

arika and Bishnu Saikia fled away from that place in the

TATA Sumo vehicle and during their return journey, the

Khukri used by Krishna Hazarika was thrown away by him in

the river Brahmaputra. Thereafter, all of them returned to

hotel Eden. In the said hotel Krishna Hazarika offered him

Rs.80,000/- which he refused to accept. The further version

[ 10 ]

of Kamal Nath is that while they were coming back from

Gohpur, Pulin Phukan confirmed the death of Daniel Topno

to Krishna Hazarika over telephone.

The C.B.I. has contended that accused Kamal Nath was

taken under police custody to all the locations mentioned in

his statement and he identified the relevant spots. In his

statement recorded U/S 164 of Cr.P.C. he accurately men-

tioned the wounds inflicted on deceased Daniel Topno and

His description of the injuries and the nature of the weapon

used find corroboration in the post-mortem report. His

statement has further been corroborated by the recovery of

Hawai sandals of Narayan Gour from the place of occur-

rence.

According to C.B.I., while the investigation was in pro-

gress, accused Ripun Bora tried to bribe Rs.10 lakh to the

previous Investigating Officer of the case Shri A.B. Gupta,

Dy. S.P., C.B.I., for cleaning his name from the instant case

and Ripun Bora was accordingly arrested and charge

sheeted. This attempt to bribe the Investigating Officer by

Ripun Bora, according to C.B.I., is one of the incriminating

circumstances to indicate that Ripun Bora was involved in

the killing of Daniel Topno.

The further contention of C.B.I. is that the investigation

conducted by them has, thus, disclosed that accused Ripun

Bora, Kamal Nath, Pulin Phukan, Krishna Hazarika and Bishnu

Saikia entered into a criminal conspiracy to murder Daniel

Topno as he was planning to contest assembly election

against Ripun Bora and if that would have happened, Ripun

Bora’s prospect to win the election would have been dimin-

ished. According to C.B.I., therefore, Ripun Bora hired

Krishna Hazarika and Bishnu Saikia to execute his plan to

eliminate Daniel Topno and accordingly, on 27-09-2000,

Krishna Hazarika, Bishnu Saikia, Pulin Phukan and Kamal

[ 11 ]

Nath killed Daniel Topno. Accused Ripun Bora, Kamal Nath,

Pulin Phukan, Krishna Hazarika and Bishnu Saikia thus com-

mitted the offences punishable U/S 120-B I.P.C. read with

section 302 of I.P.C. Accused Kamal Nath, Pulin Phukan,

Krishna Hazarika and Bishnu Saikia also committed substant-

ive offence punishable under Section 302 of I.P.C.

According to the charge sheet filed by C.B.I., the alleg-

ation against Mani Kumar Subba as narrated in the confes-

sional statement of Kamal Nath could not be substantiated

and therefore, he was not sent up for trial.

Now let me scrutinize the materials on record to find

out whether there are ingredients for framing of charges

against accused Ripun Bora and Pulin Phukan.

It is well settled that at the stage of framing charge the

court is not expected to go deep into the probative value of

the materials on record. If on the basis of materials on re-

cord the court could come to the conclusion that the ac-

cused would have committed the offence the court is ob-

liged to frame the charge and proceed to the trial. [Umar

Abdul Sakoor Sorathia -vs- Intelligence Officer, Narcotic Con-

trol Bureau (2000)1 SCC 138]

If on the basis of materials on record a court could

come to the conclusion that commission of the offence is a

probable consequence, a case for framing of charge exists.

To put it differently if the court were to think that the ac-

cused might have committed the offence it can frame the

charge, though for conviction the conclusion is required to

be that the accused has committed the offence. It is appar-

ent that at the stage of framing of a charge, probative value

of the materials on record cannot be gone into; the materi-

als brought on record by the prosecution has to be accepted

[ 12 ]

as true at that stage. [State of Maharashtra and Ors. -vs- Sow

Nath Thapa and Ors. 1996 Cri. L. J. 2448]

Framing of a charge is an exercise of jurisdiction by the

trial court in terms of Section 228 of the Code, unless the

accused is discharged under Section 227 of the Code. Under

both these provisions, the court is required to consider the

'record of the case' and documents submitted therewith and,

after hearing the parties, may either discharge the accused

or where it appears to the court and in its opinion there is

ground for presuming that the accused has committed an of-

fence, it shall frame the charge. Once the facts and ingredi-

ents of the Section exists, then the Court would be right in

presuming that there is ground to proceed against the ac-

cused and frame the charge accordingly. This presumption is

not a presumption of law as such. The satisfaction of the

court in relation to the existence of constituents of an of-

fence and the facts leading to that offence is a sine qua non

for exercise of such jurisdiction. It may even be weaker than

a prima facie case. There is a fine distinction between the

language of Sections 227 and 228 of the Code. Section 227 is

expression of a definite opinion and judgment of the Court

while Section 228 is tentative. Thus, to say that at the stage

of framing of charge, the Court should form an opinion that

the accused is certainly guilty of committing an offence is an

approach which is impermissible in terms of Section 228 of

the Code.

At the initial stage of framing of a charge, the court is

concerned not with proof but with a strong suspicion that

the accused has committed an offence, which, if put to tri-

al, could prove him guilty. All that the court has to see is

that the material on record and the facts would be compat-

ible with the innocence of the accused or not. The final test

of guilt is not to be applied at that stage. [Amit Kapoor -Vs-

Ramesh Chander and Anr. (2012) 9 SCC 460]

[ 13 ]

Reading the two provisions [Section 227 and Section

228] together in juxtaposition, as they have got to be, it

would be clear that at the beginning and the initial stage of

the trial the truth, veracity and effect of the evidence which

the Prosecutor proposes to adduce are not to be meticu-

lously judged. Nor is any weight to be attached to the prob-

able defence of the accused. It is not obligatory for the

Judge at that stage of the trial to consider in any detail and

weigh in a sensitive balance whether the facts, if proved,

would be incompatible with the innocence of the accused or

not. The standard of test and judgment which is to be finally

applied before recording a finding regarding the guilt or oth-

erwise of the accused is not exactly to be applied at the

stage of deciding the matter under Section 227 or Section

228 of the Code.

At that stage the Court is not to see whether there is

sufficient ground for conviction of the accused or whether

the trial is sure to end in his conviction. Strong suspicion

against the accused, if the matter remains in the region of

suspicion, cannot take the place of proof of his guilt at the

conclusion of the trial. But at the initial stage if there is a

strong suspicion which leads the Court to think that there is

ground for presuming that the accused has committed an of-

fence then it is not open to the Court to say that there is no

sufficient ground for proceeding against the accused.

The presumption of the guilt of the accused which is to

be drawn at the initial stage is not in the sense of the law

governing the trial of criminal cases in France where the ac-

cused is presumed to be guilty unless the contrary is proved.

But it is only for the purpose of deciding prima facie whether

the Court should proceed with the trial or not. It the evid-

ence which the Prosecutor proposes to adduce to prove the

guilt of the accused even if fully accepted before it is chal-

[ 14 ]

lenged in cross-examination or rebutted by the defence

evidence, if any, cannot show that the accused committed

the offence, then there will be no sufficient ground for pro-

ceeding with the trial.

If the scales of pan as to the guilt or innocence of the

accused are something like even, at the conclusion of the

trial, then, on the theory of benefit of doubt the case is to

end in his acquittal. But if, on the other hand, it is so at the

initial stage of making an order under Section 227 or Section

228, then in such a situation ordinarily and generally the or-

der which will have to be made will be one under Section

228 and not under Section 227. [State of Bihar -Vs- Ramesh

Singh (1977) 4 SCC 39

The contention of C.B.I. that accused Ripun Bora was

arrested and charge sheeted when he tried to bribe to

former Investigating Officer of the case to clear his name

from the instant case cannot be taken into consideration to

be an incriminating material against accused Ripun Bora be-

cause of the simple fact that the said charge-sheet and the

proceeding emanating there from has already been quashed

by the Hon’ble Supreme Court vide order dated 7-12-2011

passed in connection with W.P. (CRL) No. 882 of 2009.

The next argument of C.B.I. is that the poll analysis of

Assembly Election of Gohpur Constituency for the year 1991

and 1996 which makes it known that votes polled by Daniel

Topno was the determining factor also cannot be said to be

a correct hypothesis. To take an example, in 1991 election,

Ganesh Kutum who fought as an Independent candidate was

actually a rebel candidate of Assam Gana Parishad Party.

The official AGP candidate Moti Borah and rebel AGP candid-

ate Ganesh Kutum together secured around 16,665 votes and

the Congress candidate Kosheswar Baruah who won the elec-

tion secured 16,891 votes. In the said election Ripun Bora

[ 15 ]

did not contest. Daniel Topno who fought the election as an

Independent candidate got 7,658 votes. It is thus clear that

the Congress candidate could win because of division of

votes between the defeated candidates and especially for

the fact that AGP failed to put up a combined fight.

The contention of C.B.I. that the poll analysis of 1996

Assembly Election of Gohpur Constituency also supports their

contention that deceased Daniel Topno who secured 10,661

votes tilted the scale in favour of A.G.P. candidate Ganesh

Kutum who secured 33,664 votes as against 31,131 votes se-

cured by Congress candidate Ripun Bora, appears to be not a

clear and specific projection because, in the year 1996,

Kosheswar Baruah of the Congress Party fought as an Inde-

pendent candidate and secured around 4,660 votes. Because

of this split of votes between official Congress candidate

Ripun Bora and rebel Congress candidate Kosheswar Baruah,

A.G.P. candidate Ganesh Kutum won the election.

Thus, if Daniel Topno is termed as the crucial factor for

defeat of Ripun Bora in the 1996 Assembly Election of

Gohpur Constituency, the same logic can also be said to be

pertinent for the rebel Congress candidate Kosheswar Baruah

who secured around 4,660 votes. Because, the difference of

votes of the winning candidate Ganesh Kutum and the votes

secured by defeated Congress candidate Ripun Bora in the

1996 Assembly Election of Gohpur Constituency was only

2,533 votes.

In view of the scrutiny depicted above, the submission

of C.B.I. that the probable contest of deceased Daniel Topno

in the Assembly Election of 2001 would have been a decisive

factor to decide its outcome, because by securing substan-

tial number of votes in the 1991 and 1996 Assembly Election

pertaining to Gohpur Constituency by deceased Daniel Topno

[ 16 ]

tilted the scale in favour of the Congress or A.G.P. candid-

ates cannot be said to be a rational conclusion.

Looking from another angle, the said conclusion also

cannot be accepted because of the fact that even if Daniel

Topno is eliminated from the contest, there is no guarantee

that all the votes likely to be polled in favour of Daniel

Topno would have come to the fold of accused Ripun Bora.

The poll analysis projected by C.B.I. is also simply a

presumptive deduction. The supposition that a particular

candidate will win the future election if a particular candid-

ate does not contest the said election is nothing but a pre-

diction based on surmises and conjectures.

The poll analysis of 1991 and 1996 result of the As-

sembly Election that has been taken into consideration by

C.B.I., as pointed out in the foregoing paragraphs, is also ap-

pears to be not a correct proposition if one takes into con-

sideration that not only there were some rebel candidates in

the fray, but a number of other candidates also participated

in the said election resulting division of votes and the votes

secured by those candidates if taken into consideration, will

show that the number of votes polled in favour of Daniel

Topno in the said two elections cannot be strictly said to be

decisive factor which titled the scale in favour of the win-

ning candidate.

In Suresh Budharmal Kalani @ Pappu Kalani -Vs- State

of Maharashtra [AIR 1998 SC 3258], the Hon’ble Supreme

Court has observed that a presumption can be drawn only

from facts - and not from other presumptions - by a process

of probable and logical reasoning.

[ 17 ]

In view of the above discussion, I am of the opinion that

the presumption relied on by the C.B.I. taking into consider-

ation the poll result of 1991 and 1996 poll results to drive

the point that the contest by deceased Daniel Topno would

have been a decisive factor in the election of 2001 is nothing

but a presumption drawn from the other presumptions lack-

ing any probable and logical reasoning and therefore, this

contention cannot be taken into consideration as an incrim-

inating material against accused Ripun Bora that he had

reason to eliminate Daniel Topno to secure his winning in the

Assembly Election of 2001.

Another contention of C.B.I. is that prior to the As-

sembly Election of 2001, Daniel Topno was approached by

Ripun Bora, Mani Kumar Subba and others to join the Con-

gress Party but the deceased, who was in touch with A.G.P.

did not take any decision whether to join the Congress party

or any other party.

This contention, even if is accepted to be correct, in

my considered opinion, cannot be regarded as an incriminat-

ing material to lay the blame on accused Ripun Bora. Simply

making a request to a formidable tea tribe leader of the loc-

ality to join the Congress Party by Ripun Bora, who belongs

to the Congress Party, cannot be said to be an uncalled-for

request.

In this respect, this is also to be kept in mind that there

is nothing on record to suggest that Ripun Bora applied any

pressure tactics or threatened Daniel Topno that if he failed

to accede to their request to join the Congress Party, he

would face dire consequences.

[ 18 ]

In the instant case, it is an admitted fact that none has

witnessed the murder of deceased Daniel Topno. On perusal

of the narration of the charge-sheet filed by the C.B.I. it ap-

pears that the charge-sheeted accused persons have been

sought to be prosecuted primarily on the basis of the ex-

culpatory confessional statement of co-accused Kamal Nath.

It may be mentioned here that the said statement of the co-

accused Kamal Nath recorded by Judicial Magistrate has sub-

sequently been retracted by the accused, above named. It is

also to be taken note that it has now been held that on the

date of the alleged incident, Kamal Nath was a juvenile.

It is found from record that out of the persons named

by Kamal Nath, Mani Kumar Subba was not sent up for trial

since, according to by C.B.I., the allegations against him as

mentioned in the statement of accused Kamal Nath could

not be substantiated. It is also relevant to notice that the

other two accused persons Krishna Hazarika and Bishnu

Saikia are now dead.

It is a settled principle of law that Section 30 of the In-

dian Evidence Act permits only a limited use of the confes-

sion as against a co-accused to whom a major role is

ascribed by the confessor. It is well settled that the confes-

sion made by one accused can be used against the co-ac-

cused even when the other conditions under Section 30 are

satisfied only for the purpose of corroboration of other

evidence.

In the case of Kashmira Singh -Vs- State of Madhya Pra-

desh [AIR 1952 SC 159] the Apex Court on the question as to

how far and in what way the confession of an accused person

can be used against a co-accused has observed that it is not

evidence in the ordinary sense of the term and it does not

indeed come within the definition of 'evidence' contained in

section 3 of the Evidence Act because it is not required to be

[ 19 ]

given on oath, nor in the presence of the accused, and it

cannot be tested by cross examination. Obviously, such evid-

ence is evidence of a very weak type and that it is a much

weaker type of evidence than the evidence of an approver,

which is not subject to any of those infirmities. Such a con-

fession cannot be made the foundation of a conviction and

can only be used in support of other evidence.

In Suresh Chandra Das -Vs- The State of Meghalaya

[AIR 1971 Assam and Nagaland 146 : MANU/GH/0026/1971] the

Hon'ble Gauhati High Court has held that in dealing with a

case against an accused person, the court cannot start

with the confession of a co-accused person ; it must begin

with other evidence adduced by the prosecution and after it

has formed its opinion with regard to the quality and effect

of the said evidence, then it is permissible to turn to the

confession in order to receive assurance to the conclusion of

guilt which the judicial mind is about to reach on the said

other evidence. [Emphasis supplied]

In that case, the Hon'ble Gauhati High Court has also re-

lied upon the judgment rendered in Haricharan Kurmi –vs-

State of Bihar [MANU/SC/0059/1964 : 1964 Cri.L.J. 44] where

it has been held as follows :

“As a result of the provisions contained in Section 30,

Evidence Act, the confession of a co-accused has to be

regarded as amounting to evidence in a general way,

because whatever is considered by the Court is evidence;

circumstances which are considered by the court as well as

probabilities do amount to evidence in that generic sense.

Thus, though confession may be regarded as evidence in that

generic sense because of the provisions of Section 30, the

fact remains that it is not evidence as defined by Section 3

of the Act.

[ 20 ]

The result, therefore, is that in dealing with a case

against an accused person, the court cannot start with the

confession of a co-accused person; it must begin with other

evidence adduced by the prosecution and after it has formed

its opinion with regard to the quality and effect of the said

evidence, then it is permissible to turn to the confession in

order to receive assurance to the conclusion of guilt which

the judicial mind is about to reach on the said other

evidence.”

In Suresh Chandra Das -Vs- The State of Meghalaya (supra)

it was further held as follows:

“The law is, therefore quite settled that although the

confession of a co-accused can be taken into consideration

and can be regarded as evidence, it cannot be treated as

substantive evidence. It can only be looked into so as to

throw light or give assurance to other substantive and inde-

pendent evidence. In other words, there must be substantive

and independent evidence connecting the accused with the

offence charged against him, and only thereafter the confes-

sion of a co-accused can be taken into consideration to

throw light or to aid in the appreciation of such substantive

evidence. Where the only evidence before the learned

magistrate was the confession of a co-accused there

would, in my opinion, be no legal evidence whatsoever

warranting the framing of a charge.” [Emphasis supplied]

In the case of Yogesh alias Sachin Jagdish Joshi - vs-

State of Maharashtra (2008) 10 Supreme Court Cases 394] the

Hon’ble Supreme Court has held as follows :

“It is trite that the words “not sufficient ground for proceeding

against the accused” appearing in Section 227 Cr.P.C. postulate

exercise of judicial mind on the part of the Judge to the facts

of the case in order to determine whether a case for trial has

been made out by the prosecution. However, in assessing this

[ 21 ]

fact, the Judge has the power to sift and weigh the materi-

al for the limit purpose of finding out whether or not a

prima facie case against the accused has been made out.

The test to determine a prima facie case depends upon the

facts of each case and in this regard it is neither feasible nor

desirable to lay down a rule of universal application. By and

large, however, if two views are equally possible and the

Judge is satisfied that the evidence produced before him

give rise to suspicion only as distinguished from grave sus-

picion, he will be fully within his right to discharge the ac-

cused. At this stage, he is not to see as to whether the trial

will end in conviction or not. The broad test to be applied is

whether the materials on record, if unrebutted, make a

conviction reasonably possible.” [Emphasis supplied]

According to C.B.I., from the paper publication dated

9-03-2006, they came to know about the revelation made by

accused Kamal Nath regarding the murder of Daniel Topno.

The said paper publication has however not seized by C.B.I.

It has also come to light from charge-sheet filed by C.B.I.

that the Investigating Agency contacted Kamal Nath on 28-

06-2006 after coming to know about the information pub-

lished in the newspaper regarding the case of murder of

Daniel Topno made by accused Kamal Nath. It is also found

from record that the statement of accused Kamal Nath was

thereafter recorded on 29-05-2007 i.e. more than one year

after the publication of report in the newspaper about the

purported disclosure made by accused Kamal Nath regarding

the case of murder of Daniel Topno. This inordinate delay of

recording the statement made by accused Kamal Nath by Ju-

dicial Magistrate is a point to be noted specifically when the

said statement has now been retracted by the maker.

Now let us consider what the other materials are, apart

from the confessional statement of accused Kamal Nath,

that have been unearthed by the C.I.D. and C.B.I. to indic-

[ 22 ]

ate the complicity of accused Ripun Bora and Pulin Phukan in

respect of murder of Daniel Topno.

In the case diary of Gohpur Police Station, investigated

by C.I.D., none of the witnesses has said anything against ac-

cused Pulin Phukan. In his statement before police, witness

Bakul Tumuli had stated that on being instructed by Ripun

Bora, he met Daniel Topno and requested him to join the

Congress Party. The statement of the said witness reveals

that later on, Daniel Topno came close to Assam Gana Par-

ishad but when he was asked as to whether he had joined

A.G.P., Daniel answered in negative. Likewise, Narayan Gour

(since deceased), who was charge sheeted by C.I.D. dis-

closed in his statement recorded by police that Daniel Topno

revealed before him that on the instruction of Ripun Bora,

he had been approached by Bakul Tamuli and Bodheswar Das

with the proposal to join the Congress party. The other men-

tion about Ripun Bora is found in the statement of Amaren-

dra Kalita. According to his rendition before police, one day,

while he was sitting in the residence of Ripun Bora, he heard

Bakul Tumuli and Ripun Bora engaged in a conversation re-

garding the appeal made to Daniel Topno to join the Con-

gress Party. He could learn from the said discussion that as

directed by Ripun Bora, Bakul Tumuli and Bodheswar Das

met Daniel Topno and requested him to join the Congress

party but he was found to be not so enthusiastic about the

said proposal. The further version of Amarendra Kalita is

that Ripun Bora then reportedly told Bakul Tumuli to make

further effort to bring Daniel Topno to the Congress fold as

this would be quite a crucial factor for his (Ripun Bora) win

in the Gohpur constituency.

The above statements obviously cannot be regarded as

incriminating material to lay the culpability on accused

Ripun Bora because, making a mere request to a formidable

tea tribe leader of the locality to join his Congress Party,

[ 23 ]

cannot be said to be a request to be looked with jaundiced

eye.

Going through the statements of the witnesses ex-

amined by C.B.I., it is found that none has said anything

against accused Ripun Bora or Pulin Phukan to indicate that

they were involved in the conspiracy and murder of Daniel

Topno. Only police officer Mr. N. Singh has stated before

the Investigating Officer that accused Kale Mizar was picked

up by him during the investigation of the case relating to

murder of Daniel Topno and during his interrogation, Kale

Mizar reportedly stated before Mr. Singh that Ripun Bora had

instructed him to eliminate Daniel Topno since he did not

accept the proposal to join Congress or to refrain to contest

Assembly Election. The further version of this police officer

is that under political pressure, the statement of Kale Mizar

was not recorded and he was allowed to abscond.

The above statement of the police officer cannot be ac-

cepted to be a strong material against accused Ripun Bora,

mainly for the two reasons, the prime being that the confes-

sional statement made before a police officer is inadmiss-

ible.

Secondly, it appears from record that during the relev-

ant time, the said police officer was posted as the Sub Divi-

sional Police Officer of Biswanath Chariali and he was super-

vising the investigation of the case regarding murder of

Daniel Topno. From the record of the case diary of the said

case (Gohpur P.S. Case No. 183 of 2000) it appears that no

where in the case diary or his inspection notes, it has been

mentioned by the said supervising police officer about this

purported disclosure made by accused Kale Mizar. Rather, if

the said statement is believed, it lends credence to the

charge-sheet filed by C.I.D. against accused Narayan Gour

and Kale Mizar.

[ 24 ]

It is also revealed that during the investigation of the

case by Assam Police, the statement of Kale Mizar was recor-

ded but in his said statement, he has not mentioned any-

thing that he was instructed by accused Ripun Bora to elim-

inate Daniel Topno. It may be mentioned here that Kale Miz-

ar who was charge sheeted by C.I.D. was not examined as a

witness by C.B.I. The C.B.I. has mentioned in their charge

sheet that the allegations made against Narayan Gour and

Kale Mizar in the charge-sheet filed by C.I.D. could not be

substantiated by the investigation of C.B.I.

It is a well settled principle of law that at the stage of

framing of charge, if there is no evidence except the confes-

sion of a co-accused, a charge cannot be framed on the

mere probability of the prosecution that at some future

date, the prosecution might produce further evidence sup-

plementing its case. A trial cannot be allowed to proceed on

contingent, hypothetical and anticipatory evidence. [Suresh

Chandra Das -Vs- The State of Meghalaya

(MANU/GH/0026/1971)

In Suresh Budharmal Kalani @ Pappu Kalani -Vs- State

of Maharashtra [AIR 1998 SC 3258] also, it has been held

that while dealing with the question of framing charges, at

that stage the court is required to confine its attention to

only those materials collected during investigation which

can be legally translated into evidence and not upon fur-

ther evidence (de-hors those materials) that the prosecution

may, adduce in the trial. [Emphasis supplied].

Under Section 30 of the Evidence Act a confession of an

accused is relevant and admissible against a co-accused if

both are jointly facing trial for the same offence. In the in-

stant case, it is to be kept in mind that accused Kamal Nath

[ 25 ]

being now declared as a juvenile, he is not tried jointly with

accused Ripun Bora and Pulin Phukan and therefore, his con-

fessional statement, cannot obviously be used under Section

30 of the Evidence Act against the other two co-accused,

above named. [Shivaji Vithal Godse –Vs- State of Maharashtra

2012 Bom CR (Cri) 550]. As a result, if the statement of

Kamal Nath is excluded, then, there are absolutely no ma-

terials on record to set up the accusations against accused

Ripun Bora and Pulin Phukan. The said confessional state-

ment accused Kamal Nath therefore, cannot be called in aid

to frame charges against accused Ripun Bora and Pulin

Phukan in absence of any other evidence to do so.

It was held in Satish Mehra –vs- Delhi Administration

MANU/SC/1580/1996 : (1996)9 SCC 766

“When the Judge is fairly certain that there is no pro-

spect of the case ending in conviction the valuable time of

the court should not be wasted for holding a trial only for

the purpose of formally completing the procedure to pro-

nounce the conclusion on a future date. We are mindful that

most of the Sessions Courts in India are under heavy pressure

of workload. If the Sessions Judge is almost certain that the

trial would only be an exercise in futility or a sheer waste of

time it is advisable to truncate or snip the proceedings at

the stage of Section 227 of the Code itself.”

Likewise, in the case of Soma Chakravarty -Vs- State

(2007) 5 Supreme Court Cases 403 it was observed that be-

fore framing a charge the court must apply its judicial mind

on the material placed on record and must be satisfied that

the commission of offence by the accused was possible.

Charge may although be directed to be framed when there

exists a strong suspicion but it is also trite that the court

must come to a prima facie finding that there exist some

materials therefore. Suspicion alone, without anything

[ 26 ]

more, cannot form the basis therefore or held to be suffi-

cient for framing charge. [Emphasis supplied]

In view of the above discussion it is held that there is

no sufficient ground for proceeding against Ripun Bora and

Pulin Phukan and accordingly both of them are discharged as

per provision of Section 227 of the Code of Criminal Proced-

ure, 1973.

The record of G.R. Case No. 458 of 2000, pertaining to

the Court of S.D.J.M., Biswanath Chariali, may be returned

to the said Court. Sessions Judge Kamrup : : Guwahati

[ 27 ]