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Monday, August 4, 2014

Sec. 302, 308 r/w 34 of I.P.C. -Circumstantial Evidence not proved - Sec.27 of Evidence Act recovery at the instance of accused not proved- Abscond not proved- common intention not established - two accused - trial court convicted both accused - Appellant court acquitted Accused No.1 and convicted only Accused No.2 as the wrist watch was collected from his house - Apex court held that theory of theft for committing murder - not the case of Prosecution witnesses as no body complained about theft - it is only case of I.O. -all the gold ornaments are not removed from the body of deceased - so theory of theft is false one- mere left for their native village does not amounts to abscond as admittedly the accused were arrested in their village - mere presence in the morning in a rented house , there is nothing to disclose who killed the deceased in a house after all left for their respective duties - Recovery of wrist watch after 10 days at the instance of accused No.2 is also wrong procedure adopted as the wrist watch was handed over by the mother of the accused No.2 but not from any hidden place - non- examination of mother of accused - hostile of seizer witnesses and another witness who alleged that the accused left for some other village - No chain proved - Acquitted the accused and allowed the appeal = CRIMINAL APPEAL NO. 1010 OF 2004 Durga Burman (Roy) … Appellant (s) Versus State of Sikkim … Respondent (s) = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41798

       Sec. 302, 308 r/w 34 of I.P.C. -Circumstantial Evidence not proved - Sec.27 of Evidence Act recovery at the instance of accused not proved- Abscond not proved- common intention not established -   two accused - trial court convicted both accused - Appellant court acquitted Accused No.1 and convicted only Accused No.2 as the wrist watch was collected from his house -  Apex court held that theory of theft for committing murder - not the case of Prosecution witnesses as no body complained about theft - it is only case of I.O. -all the gold ornaments are not removed from the body of deceased - so theory of theft is false one-  mere left for their native village does not amounts to abscond as admittedly the accused were arrested in their village -  mere presence in the morning  in a rented house , there is nothing to disclose who killed the deceased in a house after all left for their respective duties - Recovery of wrist watch after 10 days at the instance of accused No.2 is also wrong procedure adopted as the wrist watch was handed over by the mother of the accused No.2 but not from any hidden place - non- examination of mother of accused - hostile of seizer witnesses and another witness who alleged that the accused left for some other village - No chain proved - Acquitted the accused and allowed the appeal = 

     In  appeal,  the  High  Court  of  Sikkim,  by  judgment  dated  15.12.2003,
acquitted the first accused Ranjit Roy for the following reasons:

“12.  At this stage, it is  relevant  to  state  that  the  appellants  were
charged under section 302/34 IPC and have been found guilty  thereunder.
 To
invoke the aid of section 34 IPC, it is  necessary  that  the  criminal  act
complained against was done in furtherance of the common  intention  of  all
the accused persons. 
The common intention implies prior meeting of mind.  It
can also be formed suddenly at the spot. The prosecution has  not  laid  any
evidence on this score.

      So far as  appellant  no.1  Ranjit  Roy  is  concerned,  there  is  no
evidence against him except that in the morning on the  date  of  occurrence
he was present in the house of the deceased and  remain  absconded  till  he
was arrested on 8th July, 2001 at New Jalpaiguri.
An act  of  absconding  is
no doubt a relevant piece of evidence but the said act does  not  by  itself
lead to a conclusion that he is guilty.
There  is  no  other  incriminating material against him to connect with  the  offence.
The  suspicion  however strong be cannot take the place of proof.
 For  reasons  aforesaid,  we  are
inclined to hold that the prosecution has not been able to  prove  its  case
against  appellant  no.1  Ranjit  Roy  beyond  reasonable  doubt.
He   is,
therefore, entitled to be acquitted on the benefit of doubt.”
                                                         (Emphasis supplied)





However, in the case of second accused-appellant herein, it was held by  the
court as follows:

“13.  In the present  case,  the  charge  against  both  the  appellants  is
specific in the sense that in furtherance of  their  common  intention  they
committed the murder of the deceased.
With the acquittal of  appellant  no.1
Ranjit Roy the charge  of  sharing  common  intention  fails.  
It  does  not
however mean that appellant no. 2  Durga  Roy  can  also  secure  acquittal.
There is no legal bar to convict him under the substantive provision  if  on
the basis of evidence it could be held that he was the author of the  crime.


      Let us, therefore, examine his case separately.
As already stated,  he
was found  in  the  house  of  deceased  in  the  morning  on  the  date  of
occurrence.
In the said house,  no  other  inmate  was  present  except  the
deceased.
He was a co-tenant along with Shibu PW4 in  respect  of  one  room
belonging to the deceased.
Shibu PW4 deposed that he had gone to  the  house
of the deceased at 2.30 p.m. to 2.45 p.m. to find out if he was  present  in
his room but he did not find him  and  his  room  was  locked.
He  had  not
returned to his room since then and remained absconded till he was  arrested
on 8th July, 2001.
He gave recovery to  the  Sitco  wrist  which  was  found
missing  on  the  date  of  occurrence.
Having   regard   to   the   above
circumstances, we have no hesitation to hold, that he (appellant no.2  Durga
Roy) after committing murder of the deceased also  committed  the  theft  of
the wrist watch exhibit IX.
He is, therefore,  clearly  guilty  of  offences punishable under sections 302 and 380 IPC.
The conviction  recorded  by  the
Sessions Judge under sections 302/380/34 IPC  is  hereby  converted  to  one
under sections 302 and 380 IPC.”
Apex court held that
 The  conviction  of   the
appellant is by placing reliance solely on the recovery of the wrist  watch.
We have already held above that, it is faulty in procedure and,  apart  from
that, the same does not infuse any confidence in the mind of  the  Court  in
the given circumstances, when pitted against the rest of the evidence,  that
the appellant committed the murder with the motive  of  theft.   It  is  not
enough that the circumstances lead to  possibility  or  probability  of  the
involvement of the accused; the circumstances should point all  the  fingers
to the accused and the accused only. That  is  not  the  situation  in  this
case. The circumstances can lead to many  other  inferences.  The  chain  is
also not complete. The first accused, who according to  the  prosecution  is
the perpetrator of the offence under Section 302 IPC,  has  been  acquitted.
The State has not filed an appeal against the acquittal. It  is  a  case  of
Sections 302, 380 read with  Section  34  IPC.   The  whole  theory  of  the
prosecution is that it is the first accused who has been  acquitted  by  the
High Court, who tied the piece of cloth on the  neck  of  the  deceased  and
strangulated her. The only piece of shaky evidence against the appellant  is
of recovery of the wrist watch of PW1 from and through  the  mother  of  the
appellant. She was not examined. There is no explanation as to  how  despite
the availability of the appellant, the  recovery  is  effected  through  his
mother. There is  no  explanation  for  the  delay  of  about  ten  days  in
effecting  recovery.  The  witnesses  have  not  supported  the   disclosure
statement or the seizure. The owner of the wrist watch-PW1 does not  have  a
case that his wrist watch had been stolen by the appellant. That version  is
not also supported by the children of the deceased. They  have  no  case  of
theft of wrist watch or cash.



In  such  circumstances,  we  have  no  hesitation  in  holding   that   the
prosecution has miserably failed in proving the case against  the  appellant
and the appellant is  entitled  to  succeed.  The  appeal  is  allowed.  The
conviction of the appellant under Section  302/380  IPC  is  set  aside.  He
shall be released forthwith in case he is not required  to  be  detained  in
connection with any other case.
    

2014 July. Part – http://judis.nic.in/supremecourt/filename=41798


    IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION


                      CRIMINAL APPEAL NO. 1010 OF 2004


Durga Burman (Roy)                                … Appellant (s)

                                   Versus

State of Sikkim                                   … Respondent (s)


                               J U D G M E N T

KURIAN, J.:


Appellant is the second accused in Criminal Case No. 31 of 2001 on the  file
of the Sessions Judge, Sikkim at Gangtok. He  was  charged  along  with  one
Ranjit Roy under Sections 302, 380 read with Section 34 of the Indian  Penal
Code (45 of 1860) (hereinafter referred to  as  ‘IPC’).   According  to  the
prosecution:

“These two accused persons were already in need of money for their  expenses
as Durga Roy (Burman) had already borrowed much cash from his  master  Sujit
Basak before completing his works and he had nothing to get from his  master
for few days. The money problem became more serious  when  on  5.7.2001  the
accused person received telephonic  call  from  the  father  of  Ranjit  Roy
stating that his mother is seriously ill at home and he should  return  home
immediately. That night both  the  accused  persons  slept  late  discussing
about their monetary problems. Next day  (i.e.  6.7.2001)  in  the  morning,
Ranjit Roy went to the rented room. Shibu Barman had already  left  for  his
job. After some time Durga Roy (Barman) also arrived in the  room.  Both  of
them were under the strong impression that Lalan Prasad had enough money  in
his house as he was engaged in lottery business and both his sons were  also
working. Therefore, the two accused persons made a plan to steal money  from
Lalan Prasad’s house as he was already left for job.

The accused persons had  hot  discussion  with  Raju  Kumar,  elder  son  of
deceased in connection with use of bathing  soap  for  toilet  purposes.  By
0900 hrs, both the sons also left for  their  daily  works.  Then  only  the
deceased Manorama Devi  remained  in  the  house  besides  the  two  accused
persons. The two accused persons decided to kill the deceased Manorama  Devi
in order to steal money from her house as she was the  only  person  present
in the house. Deceased Manorama Devi was inside the room of  her  sons  when
accused Durga Roy (Barman) pretended to talk to her, thereby  diverting  her
mind. At that moment, the other  accused  Ranjit  Roy  came  from  his  room
bringing a strip (sic)  of  cloth  and  quietly  went  behind  the  deceased
Manorama Devi and on getting the opportunity, the accd. Ranjit  Roy  quietly
put the strip round the neck of the deceased and strangulated  her.  As  the
victim became unconscious, he encircled the ligature twice on her  neck  and
tightly made a knot on the back of the neck (sic) as a result  she  died  on
the spot due to strangulation by ligature. Then leaving  the  dead  body  on
the floor, the accused persons searched the house and took  away  one  wrist
watch “SITCO” and cash Rs.2300/- and fled away from P.O. At about 1200  hrs,
the accused persons were seen by one Mrs.  Kakulay  Biswas  w/o.  Parusotham
Biswas, at Tenzing and Tenzing, Gangtok going towards Deorali side.  Accused
Durga Roy, who was known to her, told her that they were  going  home.  Then
they never came back to Gangtok.”

                                                         (Emphasis supplied)





It is thus further case of the prosecution that the  appellant  herein  made
Exhibit P6-disclosure statement while in custody on 12.07.2001:

“My true statement is that on 6/7/01 Friday  that  the  Watch  which  I  had
stolen after murdering the Lottery Seller’s wife, I have kept  the  same  in
NJP. I can hand over the said Watch to Police. I have kept  the  said  Watch
in homes at NJP.
Sd/-
                                                                 (illegible)
                                                           Accused Durga Roy
                                                                     Witness

1)    BRIJ KISHORE PRASAD, S/o. Ram Janam Prasad
      Basantpur Near Police Station
      Dist. Sewan, Bihar,                    Sd/-
      A/P. R.N. Chamling Building Brij Kishore Prasad
      M.G. Marg, gangtok,                    Ext.P-6(a)
      Occupation : Lottery Agent.

2)    TASHI TSHERING BHUTIA
      S/o. Tensang Bhutia                      Sd/-
      Dalep Busty, Kewzing                      SJ (E/N)
      South Sikkim                           Gangtok

A/P   Rajya Sainik Board,
      Palger Stadium Road,                   Sd/-
      Gangtok                                Tashi
      Occupation : Lottery Seller            Ext.P6(b)

                                             Sd/-
                                             SJ (E/N)
                            Recorded by
                                  Sd/-       Ex.P6(c)
                            (P.M. Rai)           Sd/-
                            Police Inspector  SJ (E/N)
                            Sadar P.S.
                            Gangtok”





On the basis of above disclosure made on 12.7.2001, recovery  of  the  watch
was made on 17.07.2001, as per  Annexure-P5  memo.   The  two  witnesses  in
Exhibit P6 are witnesses to the seizure also. The  Sessions  Court,  as  per
judgment  dated  31.12.2002,  convicted  both  the  accused  under   Section
302/380/34 IPC.

In  appeal,  the  High  Court  of  Sikkim,  by  judgment  dated  15.12.2003,
acquitted the first accused Ranjit Roy for the following reasons:

“12.  At this stage, it is  relevant  to  state  that  the  appellants  were
charged under section 302/34 IPC and have been found guilty  thereunder.  To
invoke the aid of section 34 IPC, it is  necessary  that  the  criminal  act
complained against was done in furtherance of the common  intention  of  all
the accused persons. The common intention implies prior meeting of mind.  It
can also be formed suddenly at the spot. The prosecution has  not  laid  any
evidence on this score.

      So far as  appellant  no.1  Ranjit  Roy  is  concerned,  there  is  no
evidence against him except that in the morning on the  date  of  occurrence
he was present in the house of the deceased and  remain  absconded  till  he
was arrested on 8th July, 2001 at New Jalpaiguri. An act  of  absconding  is
no doubt a relevant piece of evidence but the said act does  not  by  itself
lead to a conclusion that he is guilty.  There  is  no  other  incriminating
material against him to connect with  the  offence.  The  suspicion  however
strong be cannot take the place of proof.  For  reasons  aforesaid,  we  are
inclined to hold that the prosecution has not been able to  prove  its  case
against  appellant  no.1  Ranjit  Roy  beyond  reasonable  doubt.   He   is,
therefore, entitled to be acquitted on the benefit of doubt.”
                                                         (Emphasis supplied)





However, in the case of second accused-appellant herein, it was held by  the
court as follows:

“13.  In the present  case,  the  charge  against  both  the  appellants  is
specific in the sense that in furtherance of  their  common  intention  they
committed the murder of the deceased. With the acquittal of  appellant  no.1
Ranjit Roy the charge  of  sharing  common  intention  fails.  It  does  not
however mean that appellant no. 2  Durga  Roy  can  also  secure  acquittal.
There is no legal bar to convict him under the substantive provision  if  on
the basis of evidence it could be held that he was the author of the  crime.


      Let us, therefore, examine his case separately. As already stated,  he
was found  in  the  house  of  deceased  in  the  morning  on  the  date  of
occurrence. In the said house,  no  other  inmate  was  present  except  the
deceased. He was a co-tenant along with Shibu PW4 in  respect  of  one  room
belonging to the deceased. Shibu PW4 deposed that he had gone to  the  house
of the deceased at 2.30 p.m. to 2.45 p.m. to find out if he was  present  in
his room but he did not find him  and  his  room  was  locked.  He  had  not
returned to his room since then and remained absconded till he was  arrested
on 8th July, 2001. He gave recovery to  the  Sitco  wrist  which  was  found
missing  on  the  date  of  occurrence.   Having   regard   to   the   above
circumstances, we have no hesitation to hold, that he (appellant no.2  Durga
Roy) after committing murder of the deceased also  committed  the  theft  of
the wrist watch exhibit IX. He is, therefore,  clearly  guilty  of  offences
punishable under sections 302 and 380 IPC. The conviction  recorded  by  the
Sessions Judge under sections 302/380/34 IPC  is  hereby  converted  to  one
under sections 302 and 380 IPC.”

                                                         (Emphasis supplied)




Heard learned counsel  appearing  for  the  appellant  and  learned  counsel
appearing for the State of Sikkim.

The basis of maintaining the conviction against the appellant herein who  is
the second accused is:

i.    He was in the house of the deceased in the  morning  on  the  date  of
occurrence.

ii.   No other inmate was present except the deceased.

iii.  The co-tenant had deposed that when  he  went  to  the  house  of  the
deceased between 2.30 – 2.45 p.m. on the same day, he  could  not  find  the
appellant and room was locked.

iv.   He had not returned to his room and remained  absconded  till  he  was
arrested on 8th July, 2001.

v.    He gave recovery of the  wrist  watch  belonging  to  husband  of  the
deceased which was allegedly found missing on the date of occurrence.



On  these  grounds,  it  was  concluded  that  the  appellant/accused  after
committing the murder of the deceased, also committed  theft  of  the  wrist
watch and, hence, he was guilty of offence  punishable  under  Sections  302
and 380 IPC.

We are afraid, none of  the  circumstances  by  itself  would  lead  to  the
irresistible conclusion that the appellant  herein  is  the  author  of  the
crimes under Sections 302 and 380 IPC.  It is in evidence of PWs 3 and  4  -
the key witnesses that apart from the appellant, one  Ranjit  Roy  was  also
seen in the house of the deceased and, according  to  prosecution  also,  as
noted in their report, it was Ranjit Roy-accused no.1  “who  quietly  put  a
strip of cloth round the neck of the deceased and strangulated her”.
It  is
in evidence that both the accused belonged to New  Jalpaiguri.
It  is  the
case of the prosecution  itself  that  the  first  accused  had  received  a
message on the evening of 5.7.2001 that his mother  was  seriously  ill  and
she  was  at  home.   
PW-13  Kakulay  does  not  support  the  case  of  the
prosecution that she had seen the accused in  the  afternoon  of  4th  July,
2001 as proceeding to Siliguri.  She is specific and categoric of that  date
because it was  the  first  death  anniversary  of  her  father-in-law.
The
accused were in fact not absconding. They had gone  to  their  native  place
New Jalpaiguri and they were arrested from their respective homes only.

The only other ground is that of recovery under Section  27  of  the  Indian
Evidence Act, 1872 (hereinafter referred to as “Evidence Act”), recovery  of
the wrist watch which was alleged to have  been  stolen  by  the  appellant.
From the evidence available on record, we find  it  extremely  difficult  to
place reliance on that recovery for many reasons.
The  wrist  watch  belongs
to PW1, the husband of the deceased.
PWs 2  and  3  are  the  sons  of  the
deceased and were staying with PW1 and the deceased.
 PWs 1, 2 and 3  do  not
have a case that the wrist watch belonging to PW1 had  been  stolen  by  the
appellant.
They do not also have a  case  about  the  money  that  has  been
allegedly taken by the accused after committing murder.
There is not even  a
whisper in the evidence of PWs 1, 2 and 3 regarding the theft of either  the
wrist watch or the cash except for the identification of the wrist watch  by
PW1 as belonging to him. There is  not  even  a  reference  to  the  alleged
missing of the wrist watch since 06.07.2001 or the loss of cash.
It is  only
in the evidence of PW16-the investigating officer that  the  accused  had  a
motive of committing theft after murdering Smt. Manorama Devi  and  that  an
amount of Rs.2,300/- and wrist watch belonging to PW1 had been taken by  the
accused.

Exhibit P5-recovery memo says that the wrist watch had been handed  over  to
the investigating officer by the mother of the appellant.  However,  Exhibit
P6-disclosure statement  recorded  on  12.07.2001  which  has  already  been
extracted above, though, not admissible as such, states that  the  appellant
had kept the wrist watch in his house at New Jalpaiguri and  that  he  could
handover the same to the police.   The  investigating  officer  examined  as
PW16 states that the wrist  watch  was  recovered  from  the  house  of  the
appellant. It is not explained as to how the mother of  the  appellant  came
into  custody  of  the  wrist  watch  which  had  been  allegedly  kept   in
concealment by the appellant  in  his  house.  She  was  not  examined.  Yet
another significant aspect is that the disclosure  statement-Exhibit  P6  is
made only on 12.07.2001, after  five  days  of  the  incident  and  yet  the
recovery is effected only on 17.07.2001. The  witnesses  to  the  disclosure
statement as well as seizure memo PWs 11 and 12 have very clearly stated  in
their evidence that their signatures were obtained on some papers which  had
already been filled up by the police and that no statement  had  been  given
by the appellant in their presence.

Another significant aspect in the case is that all  ornaments  worn  by  the
deceased were on the body and nothing had been removed. If the  accused  had
a motive to commit theft, it is only normal that they would lay their  hands
on the jewellery as well.

On the basis of the evidence we have discussed above, we find  it  extremely
difficult to hold  that  the  prosecution  has  laid  a  foundation  for  an
effective prosecution and has proved beyond doubt that it is  the  appellant
who committed the murder of Manorama Devi.
It has  to  be  noted  that  this case is set up  only  on  circumstantial  evidence.
All  the  circumstances should lead to, without breaking the chain, the involvement of  the  accused
and the accused only. On the only ground that the accused was seen with  the
deceased in the morning of the date of incident and that they were not  seen
in that place for another two days,  cannot,  by  themselves,  lead  to  the
conclusion that it is the appellant who authored the crime.

To abscond’ means, go away secretly or illegally and  hurriedly  to  escape
from custody or avoid arrest.
It has come in evidence that the  accused  had
told others that they were from their place of  work  at  Gangtok  to  their
home at New Jalpaiguri.
They were admittedly taken into custody  from  their
respective houses only, at New Jalpaiguri on the third day of the  incident.
Therefore, it is difficult to hold that the  accused  had  been  absconding.
Even assuming for argument sake that they were not seen at their work  place
after the alleged incident, it cannot be held  that  by  itself  an  adverse
inference is to be drawn against them as held by this Court in  Sunil  Kundu
v. State of Jharkhand[1]. To quote paragraph-28:
“28. It was argued that the accused were absconding and, therefore,  adverse
inference  needs  to  be  drawn  against  them.  It  is  well  settled  that
absconding by itself does not prove the guilt of a person. A person may  run
away due to fear of false implication or arrest. (See: SK.  Yusuf  v.  State
of W.B.[2]) It is also true that the plea of alibi taken by the accused  has
failed. The defence witnesses examined by them  have  been  disbelieved.  It
was urged that adverse inference should be drawn from this. We  reject  this
submission. When the prosecution is  not  able  to  prove  its  case  beyond
reasonable doubt it [pic]cannot take advantage of the fact that the  accused
have not been able to probabilise their defence. It  is  well  settled  that
the prosecution must stand or fall on its own feet. It cannot  draw  support
from the weakness of the case of the accused, if it has not proved its  case
beyond reasonable doubt.”



If the motive for the accused in committing the murder of Manorama Devi  was
theft, it is again difficult to understand why the accused  did  not  remove
any  ornaments  worn  by  the  deceased.   Hence,  the  prosecution  version
regarding the motive also, is shaken.  (Please  see  the  decision  of  this
Court in Madhu v. State of Kerala[3])

The evidence available on record would on the contrary  give  an  indication
that theft is a story of the investigation officer only. Neither  PW1  whose
wrist watch is said to be stolen nor the sons of the deceased-PWs  2  and  3
have any case of the alleged theft of wrist watch or cash. The  recovery  is
also doubtful. There is no consistent version of the recovery.   The  person
from  whom  the  recovery  has  been  effected,  viz.,  the  mother  of  the
appellant,  has  not  been  examined.   Despite  the  availability  of   the
appellant, the recovery is through his mother.  There is no  explanation  as
to how she got to watch.  This could also be the reason why the trial  court
in the judgment dated 31.12.2012 held that “Technically  speaking  there  is
no compliance of Section 27 Evidence Act. Though the  wrist  watch  Ext.  IX
was recovered from the house of accused Durga Roy  but  the  record  reveals
that the said wrist watch was handed over to the Police  by  the  mother  of
the accused Durga Roy”.  It has to be  noted  that  recovery  of  the  wrist
watch from the house of the appellant is the only ground on which  the  High
Court has maintained the conviction of the appellant.

It has been argued by  the  learned  counsel  for  the  appellant  that  the
accused no.1 Ranjit Roy on whom the overt act of strangulation  is  alleged,
having been acquitted by the High Court, the  conviction  of  the  appellant
cannot be maintained. It is further contended that by the acquittal  of  the
main accused, the whole theory of common intention has  been  shattered  and
that the appellant is entitled to succeed on that  ground.  We  are  afraid,
the contention cannot be appreciated. No doubt, there are only  two  accused
and they have been charged under Sections 302/380/34 IPC  and  one  of  them
has been acquitted. That by itself  is  not  a  ground  to  acquit  the  co-
accused, in case there is independent evidence. Of course in the absence  of
such independent evidence, the accused could succeed on that ground as  held
by this Court in Krishna Govind Patil v. State of Maharashtra[4],  which  is
a case of Section 302 read with Section 34 IPC.  To quote,



“8. … While it acquitted Accused 1, 3 and 4 under  Section  302,  read  with
Section 34 of the Indian Penal Code, it convicted Accused  2  under  Section
302, read with Section 34, of  the  said  Code,  for  having  committed  the
offence jointly with the acquitted persons. That  is  a  legally  impossible
position. When  accused  were  acquitted  either  on  the  ground  that  the
evidence was not acceptable or by giving  benefit  of  doubt  to  them,  the
result in law would be the same: it would mean that they did not  take  part
in the offence. The effect of the acquittal of Accused 1, 3 and  4  is  that
they did not conjointly act with Accused 2  in  committing  the  murder.  If
they did not act conjointly with Accused 2, Accused 2 could not  have  acted
conjointly with them. …”


In the case before us, the allegation is that after committing  the  murder,
the accused committed theft also. As held by  this  Court  in  Amrita  alias
Amritlal v. State of M.P.[5] at paragraph-8 that:

“8. … Mere acquittal of some of the accused on the same evidence  by  itself
does not lead to a conclusion that all  deserve  to  be  acquitted  in  case
appropriate reasons have been given on  appreciation  of  evidence  both  in
regard to acquittal and conviction of the accused. …”


The same view was followed by this Court  in  Raja  v.  State[6].  To  quote
paragraph-12:

“12. … It is also relevant to point out that the High  Court  took  note  of
the general principle that if the prosecution case is the same  against  all
the accused or with regard to some  of  the  accused  on  the  same  set  of
evidence available on record with reference to any of the accused, then  the
Court would not be committing any mistake in acquitting all the accused  and
conversely, if it is possible to do so, namely, to  remove  the  chaff  from
the grain, the Court would not be committing any mistake in  sustaining  the
prosecution case against whom the evidence is shown to be intact.”



Thus,  there  should  be  independent  evidence.   The  conviction  of   the
appellant is by placing reliance solely on the recovery of the wrist  watch.
We have already held above that, it is faulty in procedure and,  apart  from
that, the same does not infuse any confidence in the mind of  the  Court  in
the given circumstances, when pitted against the rest of the evidence,  that
the appellant committed the murder with the motive  of  theft.   It  is  not
enough that the circumstances lead to  possibility  or  probability  of  the
involvement of the accused; the circumstances should point all  the  fingers
to the accused and the accused only. That  is  not  the  situation  in  this
case. The circumstances can lead to many  other  inferences.  The  chain  is
also not complete. The first accused, who according to  the  prosecution  is
the perpetrator of the offence under Section 302 IPC,  has  been  acquitted.
The State has not filed an appeal against the acquittal. It  is  a  case  of
Sections 302, 380 read with  Section  34  IPC.   The  whole  theory  of  the
prosecution is that it is the first accused who has been  acquitted  by  the
High Court, who tied the piece of cloth on the  neck  of  the  deceased  and
strangulated her. The only piece of shaky evidence against the appellant  is
of recovery of the wrist watch of PW1 from and through  the  mother  of  the
appellant. She was not examined. There is no explanation as to  how  despite
the availability of the appellant, the  recovery  is  effected  through  his
mother. There is  no  explanation  for  the  delay  of  about  ten  days  in
effecting  recovery.  The  witnesses  have  not  supported  the   disclosure
statement or the seizure. The owner of the wrist watch-PW1 does not  have  a
case that his wrist watch had been stolen by the appellant. That version  is
not also supported by the children of the deceased. They  have  no  case  of
theft of wrist watch or cash.



In  such  circumstances,  we  have  no  hesitation  in  holding   that   the
prosecution has miserably failed in proving the case against  the  appellant
and the appellant is  entitled  to  succeed.  The  appeal  is  allowed.  The
conviction of the appellant under Section  302/380  IPC  is  set  aside.  He
shall be released forthwith in case he is not required  to  be  detained  in
connection with any other case.




                                                             ...…………….……….J.
                                        (MADAN B. LOKUR)


                                                            .….……….………...…J.
                         (KURIAN JOSEPH)
New Delhi;
July 31, 2014.
-----------------------
[1]    (2013) 4 SCC 422
[2]    (2011) 11 SCC 754
[3]    (2012) 2 SCC 399
[4]    AIR 1963 SC 1413
[5]    (2004) 12 SCC 224
[6]    (2013) 12 SCC 674

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                                                                  REPORTABLE


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