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.
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
-----------------------
REPORTABLE
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.
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[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
