Tripura High Court
Biswajit Das vs The State Of Tripura on 6 December, 2018
Equivalent citations: AIRONLINE 2018 TRI 318
Author: Sanjay Karol
Bench: Sanjay Karol, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) 03 of 2015
1. Biswajit Das,
son of Shri Santi Bhushan Das
2. Md. Rabiul Hossain,
son of Late Ali Arshab
Both residents of village-Ratandula, Kalshimura,
P.O. & P.S. Kalamchoura, Sub-Division-Sonamura,
District: Sepahijala, Tripura.
----Appellant(s)
Versus
The State of Tripura
----Respondent(s)
BEFORE HON'BLE THE CHIEF JUSTICE MR. SANJAY KAROL HON'BLE MR. JUSTICE ARINDAM LODH For the appellants : Mr. S. Lodh, Advocate.
For the respondent : Mr. Babul Choudhury, P.P. Dates of hearing : 05.12.2018 & 06.12.2018.
Date of judgment : 06.12.2018.
Whether fit for reporting : YES.
Judgment & Order (Oral)
(Sanjay Karol, C.J.)
Accused Biswajit Das and Rabiul Hossain, both residents of district Sepahijala, Tripura stand convicted for having committed an offence punishable under Sections 302/394/449 read with Section 34 and independently under Section 120B of the IPC. Another accused namely, Rakibul Hossain did not face trial and as such was declared as a proclaimed offender, in relation to whom, at this point of time, no other and several action stands taken by the police and we are also not called upon to take view thereupon. Page 2 of 32
2. Undisputedly, with the registration of the FIR on 15.10.2013, police had also suspected complicity of another person, namely, Adhip Das (PW23) who also remained in judicial custody for a long time. It is not the case of the police that he is an approver.
3. In short, it is the case of the prosecution that sometime on 15th/16th October, 2013 the accused namely, Biswajit Das, Rabiul Hossain, Rakibul Hossain & Ramjan Miah trespassed into the house of Smt. Manjurani Sarkar and after murdering her, committed an act of Dacoity by taking away her belongings i.e. two mobile phones, two bangles and one gold chain. Immediately after committing the crime, the accused pawned one mobile phone with Adhip Das(PW23) as payment for buying a bottle of soft drink valuing ₹50/-. Also, eventually, two bangles landed up with a Jeweller, Janardhan Debnath (PW17) only for polishing and not sale. It is also the case of the prosecution that on 14th October, 2013 Shri Shirshendu Sarkar (PW20) on telephone had conversant with his mother i.e. the deceased. Last of such conversation took place in the night of 14th October, 2013 when it was disclosed that accused Biswajit Das had come in the night but she refused to meet him. However, the following day, when his mother did not respond to the telephone calls, he requested the tenant/neighbour Shri Anal Kanti Das(PW1) to inquire about the cause thereof. Resultantly, when this person entered the house of the deceased he found her body lying on the floor. Accordingly, police was informed.
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4. Shri Ranjit Debnath (PW24) (SI), Officer-in-charge of Battala Town Outpost (TOP) reached the spot and carried out necessary investigations. Inquest report was prepared and the dead body sent for post mortem which was got conducted through Dr. Pranab Choudhury(PW19).
5. The Investigating Officer first reached to Adhip Das(PW23) suspecting his hand in the crime and thus arrested him. Further investigation revealed that in fact, the mobile was pawned by the accused on 15th October, 2013. Further, that wife of one of the accused had handed over another stolen property, i.e. the golden bangles to Ramjan Miah, another accused, who in turn handed over the same to the jeweler Faruk Miah(PW16). Investigation revealed the motive of crime to be dacoity. As per medical evidence, it was not a case of suicide and as such, with the completion of investigation, which prima facie revealed complicity of all the accused, challan was presented in the court for trial.
6. Significantly, trial court acquitted one of the accused, namely, Ramjan Miah and the State has not laid any challenge thereto. Even in this appeal, no challenge is laid to such findings of acquittal. As such in this appeal, we are concerned only with the conviction of the present appellants, namely, Biswajit Das and Rabiul Hossain.
7. As the record reveals, the trial court, while convicting the appellants, framed nine points for consideration, being the circumstances against the accused. In brief, they are: [1] Page 4 of 32 Deceased Ms. Manjurani Sarkar was residing alone in her house at Joynagar, Agartala. [2] She owned and possessed two cell phones, one of which was of a famous brand „LG‟ and two bangles made of bronze with gold coating and one Gold chain. [3] One 14th October, 2013 Sri Shirsendu Sarkar (PW20) had spoken with his mother at about 11 p.m., when it was disclosed that one of the accused, namely, Biswajit Das, a close relative had visited her house at about 10.30 p.m. and despite his insistence, she did not open the door but asked him to meet her the following day. [4] On 15th October, 2013 all the accused persons purchased cold drinks valuing ₹50/- when they pawned the mobile phone for they had no money. The understanding being that the same would be returned subject to the accused making payment within two days. [5] After 3/4 days, Adhip Das (PW23) started using the cell phone by inserting his sim card, use thereof, led the police to him for they were tracking and tracing the digital footsteps. This further led to the discloser of identity of the accused, being the perpetrators of crime. [6] Also on 30th October, 2013 accused Rabiul Hossain made a disclosure statement which led to the recovery of two bangles vide Memo (Exhibit-19).
8. The trial court found the prosecution to have fully established its case against the present two appellants through the testimony of 24 witnesses.
9. Noticeably, in the charges framed against the accused as also in the statement under Section 313 CrPC both the accused denied their complicity in the crime. Page 5 of 32
10. In convicting the accused, what weighted with the court was the alleged unrebutted testimony of the investigating officer, PW24 and independent witnesses both with regard to the recovery of the mobile phone and the stolen bangles.
11. We are dealing with a case where indisputably prosecution has not examined any eye witness to the crime. In fact there is none, for it is not the prosecution case that homicide took place in the presence of anyone.
12. The prosecution case being that of circumstantial in nature, primarily rests upon two facts which can be summed up to have been proven by the respective witnesses as under:
a) Recovery of the cell phone(L. G. Brand) allegedly owned by the deceased and stolen by the accused. In establishing such fact, prosecution relies upon the testimonies of Sri Nirmal Chandra Debbarma (PW6), Sri Dipak Dey (PW7),Sri Rajib Roy(PW8), Sri Biswajit Debbarma (PW9), Sri Pranesh Sarkar (PW10), Prabirul Alam(PW15), Sri Adhip Das(PW23) and Sri Ranjit Debnath (S.I)(PW24).
b) In so far as the other circumstance, that of the bangles being stolen and entrusted to the jeweller is concerned, such fact stands purportedly established through the testimony of Faruk Miah (PW16), Sri Janardhan Debnath (PW17), Harun Miah (PW18), Sri Shirsendu Sarkar (PW20) and Smt. Suchitra Sarkar (PW21).
13. Before we appreciate their respective testimonies, at this stage, we must, with observations, notice certain facts:
a) The identity of the deceased is not in dispute;Page 6 of 32
b) That it was not a case of natural death stands established through the testimony of PW19, Dr. Pranab Choudhury who indisputably, through ocular and documentary evidence, being the postmortem report( Exhibit-13) has proven the deceased to have died as a result of head injury and strangulation. This witness states that on the head there was injury which could have been caused with a blunt object and strangulation could have been as a result of use of soft material.
c) It be only observed that prosecution has not proven the weapons used in the commission of crime.
A frail attempt is made, through the testimony of Shri Pranab Sarkar (PW5) to establish that it was a wooden stand of the cot which was used for committing the crime. But then, the witness himself states that neither were there only blood stains on the said article(s) nor does the seizure memos thereof, bear his signature or any identification mark. That apart, there is no other scientific evidence linking the object so recovered, in the presence of witness Shri Pranab Sarkar (PW5) with the crime.
d) Recovery of the dead body from the house of the deceased is not disputed.
e) Initially, police never suspected complicity of accused Biswajit in the crime, though the son of the deceased had disclosed about the incident of the 14th night.
f) Through the testimony of Shri Anal Kanti Das(PW1) and Smt. Mita Das alis Mita(PW2) it has also come on record that there were persons residing in the neighbourhood. It is not the prosecution case that anyone of the neighbours either heard the cries of Page 7 of 32 the deceased or saw anyone of the accused near or at the place of crime.
g) Yet another fact which needs to be noticed is the absence of any scientific evidence in the shape of fingerprints, etc., linking the accused with the dead body; alleged weapon of offence; the place of occurrence of the crime; mobile phones; or the bangles so recovered during the course of investigation.
h) Here we may also observe that it is not the case of the prosecution that the accused ever endeavoured to destroy any such evidence.
14. There is yet another undisputed fact which has emerged on record. And that being Shri Adhip Das (PW23), himself being the suspect, who though was initially detained by the police but then there is no evidence on record establishing, as to how the investigating officer, Shri Ranjit Debnath (PW24) concluded innocence or ruled out complicity of this person in the crime.
15. Noticing the aforesaid unrefutable facts, we now proceed to discuss the evidence led by the prosecution, establishing the guilt of the accused.
16. We may notice that we are dealing with a case of circumstantial evidence and the law being that accused is presumed to be innocent, till such time prosecution is able to establish its case, beyond reasonable doubt and with the only hypothesis, solely pointing the guilt of the accused and none else.
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17. Law with regard to circumstantial evidence is now well settled. It is a settled proposition of law that when there is no direct evidence of crime, the guilt of the accused can be proved by circumstantial evidence, but then the circumstances from which the conclusion of guilt is to be drawn, should be fully proved and such circumstances must be conclusive in nature, to fully connect the accused with the crime. All the links in the chain of circumstances must be established beyond reasonable doubt, and the proved circumstances should be consistent, only with the hypothesis of guilt of the accused, being totally inconsistent with his innocence. While appreciating the circumstantial evidence, the Court must adopt a very cautious approach and great caution must be taken to evaluate the circumstantial evidence. [See: Pudhu Raja and another Versus State Represented by Inspector of Police, (2012) 11 SCC 196; Madhu Versus State of Kerala, (2012) 2 SCC 399; Dilip Singh Moti Singh versus State of Gujarat, (2010) 15 SCC 622, Mulakh Raj and others Versus Satish Kumar and others, (1992) 3 SCC 43; and Sharad Birdhichand Sarda Versus State of Maharashtra, (1984) 4 SCC 116.].
18. Also, apex Court in Padala Veera Reddy v. State of Andhra Pradesh and others, 1989 Supp (2) SCC 706, Court held that when a case rests upon circumstantial evidence, following tests must be satisfied:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;Page 9 of 32
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(Also see: Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172; Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259; and Harishchandra Ladaku Thange v. State of Maharashtra, (2007) 11 SCC
436).
19. Each case has to be considered on its own merit. Court cannot presume suspicion to be a legal proof. In the absence of an important link in the chain, or the chain of circumstances getting snapped, guilt of the accused cannot be assumed, based on mere conjectures.
20. The apex Court in State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 286, while cautioning the Courts in evaluating circumstantial evidence, held that if the evidence adduced by the prosecution is reasonable, capable of two inferences, the one in favour of the accused must be accepted. This of course must precede the factum of prosecution having proved its case, leading to the guilty of the accused.
21. It is also the settled principle of law that in a first appeal it is the duty of the appellate court to fully examine, appreciate and re-appreciate the evidence led by the prosecution for ascertaining as to whether findings returned by the trial court are just and reasonable.
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22. We will now deal with the evidence led by the prosecution in establishing certain undisputed facts.
(a) Through the testimonies of Smt. Jugamaya Sharma(PW3), Shri Anal Kanti Das (PW1) and Smt. Mita Das @ Mita(PW2) it has come on record that the deceased was residing alone in her house. From the testimony of these witnesses, Shri Anal Kanti Das(PW1) and Smt. Mita Das @ Mita(PW2) it has also come on record that this couple were residing in the immediate neighbourhood, in fact in the same building, as tenants.
(b) Considering the testimonies of Shri Jagadish Biswas(PW4) and Shri Pranab Sarkar(PW5) identity of the deceased stands well established.
23. To establish first of the factual issue/circumstance referred to in para-12(supra), establishing guilt of the accused, prosecution refers to and relies upon the testimony of Shri Nimai Chandra Debbarma(PW6), Shri Dipak Dey(PW7), Shri Rajib Roy(PW8), Shri Biswajit Debbarma(PW9), Shri Pranesh Sarkar(PW10), Prabirul Alam(PW15), Shri Adhip Das (PW23) and Shri Ranjit Debnath(S.I.) (PW24).
24. Conjoint reading of testimonies of these witnesses reveals that two phones allegedly belonging to the deceased were stolen by the accused after committing the crime of murder one of which was deposited with Shri Adhip Das (PW23) as security for payment of ₹50/- for purchase of cold drink by all the three accused persons. Also, Shri Adhip Das (PW23) by inserting his sim used the phone which eventually enabled the police to trace the present accused persons. Page 11 of 32
25. From the testimony of Shri Ranjit Debnath (S.I.) (PW24) it is apparent that two phones of different brands/make were seized by the police. One of Samsung and the other of LG brand. Well there is no evidence on record, even prima facie, establishing as to what happened to one of the phones, i.e. Samsung.
26. With regard to the phone LG, this officer states that on 19th October, 2013 he submitted an application to the superior officers namely, S.P. (S.B), Tripura for providing the Call Details Report (CDR) and Subscriber Details Report (SDR) and also the tower locations of both these phones. On the 21st October, 2013 he received certain information which led him to Adhip Das (PW23) who narrated the entire incident of the accused handing over the phone.
27. Now significantly, the CDR and SDR reports are not on record. Nor is the letter written to the superior officers or receipt of the said reports on record. Also they are not the witnesses. Why it is so? remains unexplained by the Investigating Officer. Not only that, this witness in the cross examination part of his testimony feigns ignorance as to whether the machines/instruments required for tracking, which led to the reports, if any, being prepared and supplied were ever available with the police. Hence, such his version is unbelievable and doubtful.
28. We also notice that there is no other scientific evidence, in the nature of fingerprints, etc., of the accused, Page 12 of 32 found on any one of the mobile handsets. All this itself casts doubt on the prosecution story of the mobile phones being stolen and handed over to Adhip Das who in fact, at some stage was himself a grave suspect. Also there is no proof of the accused having purchased the cold drinks valuing ₹50/-. Save and except, the ocular version, there is no other contemporaneous/corroborative material establishing the presence of the accused in the shop of Adhip Das. This we find it necessary to state for we find testimony of the police officers to be unbelievable and the witness unreliable. To us it appears that he has not spoken the whole truth.
29. At this juncture, we may also observe the admission of the Investigating Officer, of not having obtained any report of the fingerprint expect on any one of the items allegedly stolen by the accused. Noticeably he had in fact submitted requisition to the State Forensic Science Laboratory; the dog squad; and as also the fingerprint expert for rendering assistance during the investigation. In fact, he admits the said authorities to have favourably responded and carried out the investigation on the spot. But where are the reports of such investigation? itself is a shrouded mystery.
30. Further the Investigating Officer admits that he had seized a wooden bed stand in a broken condition; a telephone receiver; a cutting instrument; as also a pillow meant for the sofa but then there is no link evidence, establishing any tell tale signs or marks of the accused or for that matter the deceased, on any of these items. Also there is nothing on record to Page 13 of 32 establish, save and except, for the ocular version of PW20, presence of the accused in the house of the deceased, with which we shall deal hereinafter later on. But in so far as the Investigating Officer is concerned or for that matter scientific investigation is concerned, there is nothing on record establishing presence of anyone of the accused in the house, being the spot of crime.
31. The question which arises for consideration is as to what happened to the said scientific investigation, why is it not placed on record, or for that matter what was really contained therein, its findings and scientific analysis of the Data. Now all these cast a doubt on the prosecution story.
32. When we peruse the testimony of PW23, Adhip Das we notice that he himself was a suspect and was behind the bars for quite some time. It is in this backdrop that we proceed to appreciate his testimony with little circumspection.
33. The witness states that on 15th October, 2013 at about 9-9.30 pm, three "unknown persons" purchased a bottle of cold drink worth ₹50/- but did not pay the amount. When inquired they disclosed their names as Biswajit Das, Rabiul Hossain and Rakibul Hossain of Boxanagar. Thereafter, they requested for credit wherein request was turned down and as such they "pledged" their cell phone for 2/3 days. All this led to an altercation. Seeing the same, the neighbouring shopkeepers came. But who are those shopkeepers he does not disclose. Well what is important is that this witness could not identify the cell Page 14 of 32 phone (MO. V) allegedly handed over by the accused to him as security for payment of money for purchase of a cold drink.
34. The testimonies of Prabirul Alam(PW15), Shri Pranesh Sarkar(PW10), Shri Biswajit Debbarma(PW9), Shri Rajib Roy(PW8), Shri Dipak Dey(PW7) and Shri Nimai Chandra Debbarma (PW6) who are the neighbours and other witnesses is to the similar effect. However, conjoint reading of the same establishes one fact, and that being that save and except for one of them, none were ever associated in carrying out the Test Identification Parade (TIP). Though when we peruse the testimony of Sri Ranjit Debnath (PW24)(SI) we do find such exercise to have been carried out.
35. On this issue, two further points arise for consideration. The first being that save and except for the ocular version of the Investigating Officer, there is no documentary proof with regard thereto and the second as to why weren‟t these witnesses associated for carrying out the TIP, for after all the first link in the chain, identifying the accused was Adhip Das (PW23). It is a matter of record, as is admitted by the very same witness, that at some point of time, both he as also all the accused were in the very same judicial lock up, even then this witness did not reveal the identity of the accused to the police. For the Investigating Officer wants the court to believe that it was only through scientific investigation that he could trace the accused persons.
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36. Here, we may also observe, even though it is not the case of the Investigating Officer, but one amongst such witnesses, namely Shri Pranesh Sarkar (PW10) was in fact associated in the process of TIP. He states that in the Kendriya Sanshodhanagar, Tripura, Agartala, accused were mixed up with 10-15 persons and the exercise of identification was carried out. But then he does not categorically state that the accused were got identified through such process. In any event, where is the report of the Test Identification Parade?
37. That apart, we find that there are material improvements in the testimonies of all these named persons [Shri Dipak Dey (PW7), Shri Rajib Roy (PW8), Shri Biswajit Debbarma (PW9), Shri Pranesh Sarkar (PW10) and Prabirul Alam (PW15)] rendering their testimonies not worthy of credence. As such the prognosis of the accused having bought cold drink from the shop of PW23 is under a grave doubt, in fact, not found to have been established and by no means, beyond reasonable doubt.
38. Even on the issue of recovery of mobile phone by the police we have grave doubt. Such fact is sought to be established through the testimony of independent witnesses, Shri Nimai Chandra Debbarma (PW6) and Ranjit Debanth (PW24) (SI), being the Investigating Officer.
39. Now the independent witness, as we notice, has made several improvements rendering his testimony to be not worthy of any credence and as such cannot be said to be Page 16 of 32 reliable. He admits not to have disclosed to the investigating officer that accused Rabiul Hossain had given the cell phone (Exbt. MO V) to his son in law, Adhip Das (PW23) or to have disclosed the names of the accused. He also admits that his statement was recorded on 22nd October, 2013 whereafter he never met the police. Inferentially, his testimony is also to be examined with circumspection. He admits that one Tajul Islam had signed the document as a witness but we find such person not to have been examined in the court and we cannot forget that this witness is the father in law of the person who himself was behind the bar being a suspect in the very same crime. Most importantly, he feigns ignorance as to whether the cell phone (Exbt. MO V) was packed and sealed or not. If that were so, then the possibility of the said document/article being tampered with has not been ruled out.
40. Coming to the other circumstance that is recovery of the bangles, we notice the same to have been established through the testimonies of Faruk Miah (PW16), Shri Janardhan Debnath (PW17), Harun Miah (PW18), Shri Shirsendu Sarkar (PW20), Smt. Suchitra Sarkar (PW21) and Shri Ranjit Debnath (PW24) (S.I.).
41. Let us examine as to what really is the prosecution case on this circumstance.
According to Shri Ranjit Debnath (SI), (PW24), his investigation revealed that two "golden" bangles were removed by the accused from the body of the deceased, whereafter one Page 17 of 32 of them, namely Rabiul Hossain handed over the same to his wife, who in turn handed over the same to her sister in law, who in turn handed over the same to her husband, namely Ramjan Miah, (brother of the accused Rabiul Hossain) and ultimately, he took the bangles for polishing to the jeweller, Harun Miah (PW18), from whom the police recovered the same in the presence of Faruk Miah (PW16) and Janardhan Debnath (PW17). Later on, these bangles were identified by Shirshendu Sarkar (PW20) and Suchitra Sarkar (PW21).
Well, conjoint reading of testimonies of these witnesses reveals a major contradiction about the metal, as to whether the bangles were of gold or not. Some state it be of gold, whereas others say they were of bronze but with a gold plating.
42. Investigating Officer states that bangles were recovered pursuant to the disclosure statement of Rabiul Hossain (Exhibit-19, dated 01.9.2014). The translated version of such disclosure statement reads as under:
"This time the A/P Rabiul Hossen under police remand confessed during interrogation by me and other officers of West Agt. PS and Senior officers that, on 15.10.2013 A.D. last, Biswajit Das, Raquibul Hussain and I unitedly killed Biswajit Das‟s aunt, an elderly woman at a time between 2 pm and 3 pm near the Jubasamaj Club of Joynagar. (We) did not find any hard cash after the murder of the elderly woman. We removed only two gold bangles from the hands of the dead elderly woman. (We) took that torn gold chain which got torn off at the time of Page 18 of 32 taking from her neck by pulling and two mobile phones - one SAMSUNG (mobile) and 1 LG mobile. Among these I took the two gold bangles. Biswajit took the gold chain and Raquibul Hossain took the SAMSUNG mobile and by giving the custody of the remaining LG mobile we drank spite (SIC.) from the shop of Adhip Das in the Durganagar market. The only reason behind killing the elderly woman is that Biswajit will go to foreign country along with us by killing her and taking (her) money. I gave the bangles, that I had taken, first to my wife and later I took them from her (my wife) and gave them to the wife of my younger brother. Thereafter, I sent (the bangles) through my younger brother (Ramjan Hossain) to a jewellary shop in order to get (them) cleansed. The name of that jewellery shop is „Sahajalal Jewellery‟. My brother Ranjan knows that shop and can find the shop out if you go."
43. We notice that there is no witness to this disclosure statement. Why so? remains unexplained. Well it is not the law that for every disclosure statement there must be an independent witness. But then in a case of this nature, where the suspect of crime was someone else, it was imperative for the police to have associated an independent person and to have recorded such statement in his presence, especially when it was remanded in custody and that too much after the incident and arrest of the accused. This we say, more so for the reason that we do not find the testimony of the investigating officer to be unimpeachable.
44. We have already noticed several flaws in the investigation. Also the Investigating Officer admits not to have Page 19 of 32 submitted the extract copy of the disclosure statement along with the charge sheet. When did he obtain signature of the accused thereupon, is a mystery in itself. All these renders the prosecution story of their disclosure statement itself to be doubtful.
45. Law on disclosure/confessional statement is now well settled. Sections 25, 26 and 27 of the Indian Evidence Act read as under:
"25. Confession to police officer not to be proved.
No confession made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him.
No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
27. How much of information received from accused may be proved.
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
46. It be observed the principle of law as laid down in Pulukuri Kottaya and others v. Emperor, AIR (34) 1947 Privy Council 67, which is reproduced herein under, has been consistently followed by Hon‟ble the Supreme Court of India. Page 20 of 32
"[10] ... ... On normal principles of construction their Lordships think that the proviso to S. 26, added by S. 27, should not be held to nullify the substance of the section. In their Lordships' view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
(Emphasis supplied)
47. In Bodhraj alias Bodha & others vs. State of Jammu and Kashmir, (2002) 8 SCC 45, Hon‟ble Supreme Court of India, held as under:-
"18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short 'the Evidence Act') is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. vs. Bal Krishan, (1972) 4 SCC 659: AIR 1972 SC 3 and Mohd. Inayatullah vs. State of Maharashtra, (1976) 1 SCC 828: AIR 1976 SC 483. The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will Page 21 of 32 prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered"
envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See: State of Maharashtra v. Danu Gopinath Shinde, (2000) 6 SCC 269]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the Page 22 of 32 witnesses to the place where he had concealed the articles is not indicative of the information given."
(Emphasis supplied)
48. In Harivadan Babubhai Patel vs. State of Gujarat, (2013) 7 SCC 45, Hon‟ble Supreme Court of India, held that:-
"17. In this context, we may usefully refer to A.N. Venkatesh and another v. State of Karnataka [(2005) 7 SCC 714] wherein it has been ruled that:
"By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer the place where the dead body of the kidnapped boy was found ... would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. ..."
In the said decision, reliance was placed on the principle laid down in Prakash Chand v. State (Delhi Admin) [(1979) 3 SCC 90: AIR 1979 SC 400]. It is worth noting that in the said case, there was material on record that the accused had taken the Investigating Officer to the spot and pointed out the place where the dead body was buried and this Court treated the same as admissible piece of evidence under Section 8 as the conduct of the accused.
18. In State of Maharashtra v. Damu [(2000) 6 SCC 269], it has been held as follows: -
"35. ... It is now well settled that recovery of an object is not discovery of a fact as envisaged in Section 27 of the Evidence Act, 1872. The decision of the Privy Council in Pulukuri Kottaya v. King Emperor [AIR 1947 PC 67] is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect."
19. The same principle has been laid down in State of Maharashtra v. Suresh [(2000) 1 SCC 471], State of Punjab v. Gurnam Kaur and others [(2009) 11 SCC 225], Aftab Ahmad Anasari v. State of Uttaranchal [(2010) 2 SCC 583], Bhagwan Dass v. State (NCT) of Delhi [(2011) 6 SCC 396: AIR 2011 SC 1863], Manu Sharma v. State Page 23 of 32 [(2010) 6 SCC 1: AIR 2010 SC 2352] and Rumi Bora Dutta v. State of Assam [(2013) 7 SCC 417]."
49. As such confessional statement made to the police officials cannot be used against the accused, in view of the aforesaid statement of law.
50. Now when we peruse the testimony of the jeweller as also the witnesses to the recovery of the bangles, we notice that recovery took place on 30th October, 2013, the day when it was a weekly holiday and the shops were closed. Purportedly, police asked the jeweller to open the shop. But then this is not the deposed case of the Investigating Officer and who asked the jeweller to open the shop remains undisclosed.
51. Be that as it may, the witness states that the bangles were of bronze though gold plated whereas it is the case of the prosecution that the bangles stolen by the accused were actually that of gold and not bronze. Not only that, the jeweller categorically admits not to have maintained any books of accounts. Specifically, he does not state that the accused handed over the bangles to him. He only sates that Ramjan Miah (brother of the accused) handed over the bangles to him but then to complete the link in the chain, of the bangles being stolen by the accused and handed over through the family members of the accused, remain unproven on record. This is the most important circumstance of the case and the prosecution forgot to examine the family members of the accused though at some stage of investigation their statements under Section 164 Cr.P.C. were got recorded.
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52. Also the jeweller admits not to have mentioned the recovered property in the kacha register maintained by him. The signatures of Ramjan Miah were also not obtained by him and most importantly, this kacha register has not seen the light of the day. But what totally demolishing the prosecution case is the seizure memo which records the time of seizure to be 2 p.m. whereas as deposed by the jeweller, the Darogababu i.e. the investigating officer left his shop at 5/5.30 p.m. What was Darogababu doing there for more than three hours after effecting recovery of the stolen property remains unexplained, for on this issue, we notice that Shirshendu Sarkar (PW20) and Suchitra Sarkar (PW21), son and daughter of the deceased, are categorical that golden bangles, two in number, were got identified by the police at 2.15 p.m. and that too at police station West Agartala. Also the witness admits that the document was prepared much prior to the identification. It is in this backdrop, the contradiction being material with regard to the nature of the metal; the manner and mode of recovery and process of identification, we find this circumstance not to have been proven on record, beyond reasonable doubt. Also the stolen gold chain was never got identified in Court.
53. The Hon‟ble Supreme Court of India in Prabhoo v. The State of Uttar Pradesh, AIR 1963 SC 1113, has observed as under:
"9. The main difficulty in the case is that the evidence regarding the recovery of blood stained axe and blood stained shirt and dhoti is not very satisfactory and the courts below were wrong in admitting certain statement alleged have been made by the appellant in connection Page 25 of 32 with that recovery. According to the recovery memo the two witness who were present when the aforesaid articles were produced by the appellant were Lal Bahadur Singh and Wali Mohammad. Lal Bahadur Singh was examined as prosecution witness No.4. He did give evidence about the production of blood stained articles from his house by the appellant. The witness said that the appellant produced the articles from a tub on the eastern side of the house. The witness did not, however, say that the appellant made any statements relating to the recovery. Wali Mohammad was not examined at all. One other witness Debi Baksh Singh was examined as prosecution witness No 3. This witness said that a little before the recovery the Sub-Inspector of Police took the appellant into custody and interrogated him; then the appellant gave out that the axe with which the murdered been committed and his blood stained shirt and dhoti were in the house and the appellant was prepared to produce them. These statements to which Debi Baksh (P.W. 3) deposed were not admissible in evidence. They were incriminating statements made to a police officer and were hit by Ss. 25 and 26 of the Indian Evidence Act. The statement that the axe was one with which the murder had been committed was not a statement which led to any discovery within the meaning of S. 27 of the Evidence Act. Nor was the alleged statement of the appellant that the blood stained shirt and dhoti belonged to him a statement which led to any discovery within the meaning of S. 27. Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. In Pulukuri Kotayya v. Emperor, 74 Ind App 65: (AIR 1947 PC 67), the Privy Council considered the true interpretation of S. 27 and said:
"It is fallacious to treat the 'fact discovered' within the Section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A'., these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
(p. 77 of Ind App): (at p.70 of AIR).
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We are, therefore, of the opinion that the courts' below were wrong in admitting in evidence the alleged statement of the appellant that the axe had been used to commit murder or the statement that the blood stained shirt and dhoti were his. If these statements are excluded and we think that they must be excluded, then the only evidence which remains is that the appellant produced from the house is blood stained axe and some blood stained clothes. The prosecution gave no evidence to establish whether the axe belonged to the appellant or the blood stained clothes were his."
54. In a case where the incriminating articles were recovered from the house of the accused after 23 days of commission of crime of murder, the Hon‟ble Supreme Court of India, in Chandran v. State of Madras, (1978) 4 SCC 90, expressed its doubt with regard to the prosecution case.
55. In Narsinbhai Haribhai Prajapati v. Chhatrasinh and others, AIR 1977 SC 1753, the Hon‟ble Supreme Court of India, held as under:
"2. We are prepared to assume in favour of the prosecution that the evidence in regard to the incident of the 23rd near the pond and the evidence in regard to the incident which took place near the Ota of the Pir shows that the respondents had some motive for committing the crime. We may also accept that blood-stained shirt and dhoti were seized from the person of respondent No.1 and dharias were seized from the houses of respondents 1 and 3. But those circumstances are in our opinion wholly insufficient for sustaining the charge of murder of which the respondents are accused."
56. Hon‟ble the Supreme Court of India, in Vijay Thakur v. State of Himachal Pradesh, (2014) 14 SCC 609, held as under:
"13. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial Page 27 of 32 evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries.
14. In Mani v. State of Tamil Nadu, 2008 1 SCR 228, this Court made following pertinent observation on this very aspect:
"21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case...." "
57. In Musheer Khan @ Badshah Khan v. State of M.P., (2010) 2 SCC 748, the apex Court, held as under:
"65. Therefore, reliability of the materials discovered pursuant to the facts deposed by the accused in police custody depends on the facts of each case. If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code.
66. The reason is that Section 100 falls under Chapter VII of the Code which deals with processes initiated to compel the production of things on a search. Therefore the entire gamut of proceedings under Chapter VII of the Code is based on compulsion whereas the very basis of facts deposed by an accused in custody is voluntary and pursuant thereto discovery takes place. Thus, they operate in totally different situations. Therefore, the safeguards in search proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed.
67. Section 27 starts with the word 'provided'. Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [See State of Bombay vs. Kathi Kalu Oghad, 1961 AIR(SC) 1808].Page 28 of 32
68. The Privy Counsel in Pulukori Kottaya vs. King Emperor, 1947 PC 67 held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. However, the extent of discovery admissible pursuant to the facts deposed by accused depends only to the nature of the facts discovered to which the information precisely relates.
69. The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused."
58. In Babboo v. State of M.P., (1979) 4 SCC 74, the Hon‟ble Supreme Court of India, held as under:
"13. The learned Additional Sessions Judge has also referred to the recovery of Katarnas on the information given by accused Nos.1,3 and 5. These recoveries hardly have any probative value in the facts and circumstances of this case. If there is no substantive evidence worth the name the recovery of Katarnas would hardly advance the prosecution case against the accused. Katarnas appear to have been stained with human blood........."
59. What also renders the prosecution case to be doubtful is the manner in which the General Diary (GD) book is maintained by the police. Both Uttam Kr. Das, PW13 and Narayan Debnath, PW25 admit that there are several places where entries have not been made. The diary is left blank and at several places it stands filled up not by the Investigating Officer but by someone else being a third person, who at no point of time was ever associated with the investigation. However, we notice, that an attempt has been made to interpolate the diary by inserting certain facts, which if the diary had been maintained in a normal course, wouldn‟t have been in Page 29 of 32 a different handwriting, type and style. We notice that at entry 813, 814, 876, and 883 there are either blanks, insertions or entries in different hands. Also at one place, material fact i.e. particulars of one of the accused Rabiul Hossain is written below the signatures of the Investigating Officer. With caution we state that it is not a case of faulty investigation but that of an interpolation perhaps leading to the possibility of false implication of the accused persons.
60. At this juncture, we may notice that the learned trial judge has delivered a lengthy judgment. It runs into 30 pages. We find him to have referred to and reproduced several decisions of the Hon‟ble Supreme Court. Appreciation of evidence and the findings thereupon starts from para 16 to 29 comprising of nine pages. In our considered view, the learned trial judge, though correctly noticing the settled principles of law as laid down by the Apex Court in Sanatan Naskar vs. State of W.B., (2010) 8 SCC 249; Dhan Raj alias Dhand vs.State of Haryana, 2014 AIR SCW 2803; Geejaganda Somaiah vs. State of Karnataka, (2007) 9 SCC 315; Sharad vs. State of Maharashtra, AIR 1984 SC 1622; Chinnammal vs. State of Tamil Nadu, (1997) 1 SCC 145; State of Maharashtra vs. Suresh, (2000) 1 SCC 471; State of U.P. vs. Mohd. Iqram, 2011 AIR SCW 3844 failed to apply the same to the attending facts and circumstances. There is complete misreading and mis-appreciation of evidence; as also misapplication of law. The court presupposed the guilt of the Page 30 of 32 accused and by adopting such an approach, appreciated and evaluated the evidence, rendering such findings to be perverse.
61. It is here we find the findings returned by the trial court, holding the accused guilty of having committed an offence punishable under Section 120B, 302 read with Section 34, 394 and 449, all under IPC to be bordering perversity. He notices the contradiction in the testimonies witnessing the mobile phone handed over to Adhip Das (PW23) but then states that they are not material enough to cast a doubt about the veracity of their statements. He forgot that witnesses, Prabirul Alam (PW15) and Shirshendu Sarkar (PW20) deposed for the first time in court, without any previous statement having been recorded by the Investigating Officer. Also he forgot that it is the settled principle of law that electronic evidence is required to be proven in the manner prescribed under the provision of Section 65A and 65 B of the Evidence Act, 1872. His findings of the accused not having explained the circumstance in his statement as recorded under section 313 CrPC is totally mis- application and mis-reading of law.
62. In the instant case, no article belonging to the accused was recovered by the police. Also there was no admission of any fact by the accused and as such the accused furnishing any explanation with regard to the "missing link"
would not have arisen. It is the prosecution which is required to establish its case beyond reasonable doubt, pointing only and only to the guilt of the accused, excluding implication of anyone and everyone else, in the alleged crime. The neighbour and the Page 31 of 32 maid had access to the accused. Possibility of their involvement is not ruled out. The motive of crime appears to be none. The recovered bangles were not of gold. Phones are not linked to the deceased and above all, nothing else was stolen or missing. It is not that in every case of murder, motive has to be there. But here this is what the prosecution has so propounded. There is no prior animosity between the accused and the deceased. Also the hypothesis of the accused buying a cold drink immediately after committing a heinous crime of murder is unfathomable, in the attending facts and circumstances.
63. Trial Judge notices that statement under Section 164 CrPC, disclosure statement (Exbt.19) is not a substantive piece of evidence, yet he relies upon the same for establishing the charge of dacoity.
64. Noticeably, he does not explain as to why on the very same evidence, he convicted only two of the accused and acquitted the third. The evidence when read cumulatively, would have resulted into either the acquittal or conviction of each one of the accused persons. Also we notice that there are no findings as to how Section 120 B of IPC stands applied to the facts narrated by the witnesses on oath. There is no evidence worth its name, establishing the charge of conspiracy. The time, the place, the manner in which such alleged conspiracy took place remains a shrouded mystery, as secret, as perhaps the accused concerted, the manner in which the Police wants the Court to presume.
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65. There is no evidence, worth its name, of commission of crime for which the accused stands convicted under Section 449 IPC. Also, prosecution has not been able to establish the charge of murder.
66. In the instant case, the witnesses examined by the prosecution cannot be said to be reliable and their testimonies believable or worthy of credence. Also, it cannot be said that the circumstances from which the conclusion of the guilt is to be drawn stands fully established consistent only with the guilt of the accused, being the only hypothesis and the possibility of none else being involved in the crime.
67. Hence, for the aforesaid reasons, we quash the judgment and order of conviction and sentence dated 03.01.2015 and 08.01.2015 respectively, rendered in Case No.S.T. 6 of 2014 titled as State of Tripura vs. Rabiul Hossain & others passed by the learned Additional Sessions Judge, Court No.5, West Tripura, Agartala arising out of FIR No.328/2013 dated 15.10.2013 registered at P.S. West Agartala and direct that the accused persons, who are in custody, be set at liberty forthwith, save and except, if they are not required to be detained in connection with any other case.
(ARINDAM LODH), J (SANJAY KAROL), CJ. lodh