Tripura High Court
Smt. Manju Debnath vs The State Of Tripura on 31 October, 2019
Equivalent citations: AIRONLINE 2019 TRI 165, 2020 (1) CRIMES 96 SN
Bench: S. Talapatra, Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) No.28 of 2016 and Crl. A. (J) No.32 of 2016
In Crl. App. (J) No.28 of 2016
Smt. Manju Debnath,
wife of late Sreedam Debnath,
resident of Village - Banerjee Bagan, Jumerdhepa,
at present Village - Thakurpara,
P.S. Melaghar, District-Sepahijala Tripura
------- Appellant(s)
-Versus-
The State of Tripura
represented by the Secretary to the
Government of Tripura, Home Department, Agartala
-------- Respondent(s)
For the Appellant(s) : Mr. R. Datta, Advocate
For the Respondent(s) : Mr. S. Ghosh, Spl. PP
In Crl. App. (J) No.32 of 2016
Sri Sanjoy Datta,
son of late Rabindra Datta,
resident of Village - Bishramganj Bazar,
P.S. Bishramganj, District-Sepahijala Tripura
------- Appellant(s)
-Versus-
The State of Tripura
-------- Respondent(s)
For the Appellant(s) : Mr. Somik Deb, Advocate
For the Respondent(s) : Mr. S. Ghosh, Spl. PP
Page 2 of 34
Date of hearing : 02.08.2019
Date of delivery of Judgment :
& Order
Whether fit for reporting : YES
THE HON'BLE MR. JUSTICE S. TALAPATRA
THE HON'BLE MR. JUSTICE ARINDAM LODH
Judgment and Order
[S. Talapatra, J]
These two appeals being Crl. App. (J) No.28 of 2016 (Sri Manju Debnath vs State of Tripura) and Crl. App. (J) No.32 of 2016 (Sri Sanjoy Datta vs State of Tripura) are clubbed for disposal by a common judgment for the reason that these appeals emerge from the judgment and order dated 22.04.2016 delivered in Case No. Sessions Trial 38(WT/S) of 2012 by the Addl. Sessions Judge, West Tripura District, Sonamura as he then was.
02. The appellants were charged under Section 302 read with Section 34 of the IPC for committing murder of Sridam Debnath on 10.07.2010 at night at North Jhumerdhepa under Melaghar PS. After the regular trial both the appellants were convicted under Section 302 of the IPC and sentenced to suffer RI for life and fine of Rs.10,000/- with default stipulation.
03. The prosecution against the appellants was launched on the basis of a complaint dated 18.07.2010 lodged to the Officer-in-Charge, Melaghar PS revealing that the complainant namely Bimal Debnath, PW- 9, had initially informed the police that his younger brother namely Page 3 of 34 Sridam Debnath committed suicide by consuming poison in his room. But by the complaint (Exbt.6) dated 18.07.2010 he had changed the statement informing that later on, he came to know one Sanjoy Datta (one of the appellants herein) was having an illicit relation with Manju Debnath, wife of his younger brother namely Sridam Debnath (the other appellant) and those appellants by hatching up a conspiracy killed his brother and fled away. Based on the said complaint Melaghar PS case No.79/2010 under Section 302/34 of the IPC was registered and taken up for investigation.
04. On completion of investigation, the final police report was submitted sending up the appellants for facing the trial. The police papers were committed to the jurisdictional sessions court and the Addl. Sessions Judge, West Tripura, Sonamura, hereinafter referred to as the trial judge, framed the charge as stated above, to which the appellants pleaded not guilty and claimed to be tried.
05. To substantiate the charge as many as 22 witnesses including the complainant (PW-9) including the children of the deceased were adduced. That apart, 13 documentary evidence including the post mortem report (Exbt.8) are placed in the evidence. After the prosecution evidence was recorded, the appellants were separately examined under Section 313 of the Cr.P.C. when they again raised the plea of innocence by stating that the incriminating material as emerged in the trial are fabricated.
06. Mr. Somik Deb, learned counsel has appeared for the appellant of Crl. App. (J) No.32 of 2016 namely Sanjoy Datta and Mr. R. Datta, learned counsel has appeared for the appellant of the Crl. App.(J) Page 4 of 34 No.28 of 2016 namely Smt. Manju Debnath. Mr. Deb, learned counsel has submitted, with emphasis, that there is no legal evidence against the appellant, Sanjoy Datta. It is not the case of the prosecution that the said appellant had administered the poison to the deceased. The prosecution case is that at the instance of the said appellant they raided one shop of pesticides and on showing of the said appellant, they had seized one bottle of cypermetharin under brand name of GOLDCYP-10. According to the prosecution since the appellants were in illicit relation they had planned to exterminate the deceased namely Sridam Debnath. The further case of the prosecution is that both the appellants were arrested from Karimganj from a rented house. Mr. Deb, learned counsel has quite succinctly submitted that the showing of the bottle of the pesticide from a shop cannot be the discovery within the meaning of Section 27 of the Evidence Act. As such, the said evidence ought not have been used against the appellant. In this regard, Mr. Deb, learned counsel has relied on a decision of the apex court in Ranganayaki vs State by inspector of police reported in (2004) 12 SCC 521 where the apex court has observed that on analysis of the factual background if it is seen that there is practically no evidence of any abetment to the actual act committed i.e. the murder of the deceased the alleged motive is also not substantive. Some reference to the past incident may have been referred to prove motive. But they do not prove any intention to murder the deceased much less than any instigation therefor. The purported recovery of articles in such circumstances would be of no consequence. If the accused did not „confess‟ that the said article was used for purpose of poisoning the deceased. Mr. Deb, learned counsel has placed his reliance on Navaneethakrishnan vs State by Page 5 of 34 inspector of police reported in (2018)16 SCC 161 to contend that the inculpating statement or the statement which are otherwise inadmissible cannot be brought into the evidence qua Section 27 of the Evidence Act. The material objects which the police has claimed to have recovered (the bottle of pesticide) is commonly available in that shop. The statement inculpating the accused made in the police custody is inadmissible under Section 26 of the Indian Evidence Act. The arrest of the appellant represented by Mr. Deb, learned counsel from a house of Karimganj cannot be used against him as that was a post occurrence incidence, not related to the commission of offence. In Navaneethakrishnan (supra) the apex court has unequivocally observed as follows:
24. In this view, the information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Evidence Act, 1872.
Further, in Selvi (Selvi v. State of Karnataka(2010)7 SCC 263: (2010)3 SCC (Cri) 1 this Court held as under: (SCC p. 383, para 364) "264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872."
25. In Madhu vs. State of Kerala (2012) 2 SCC 399, this Court while discussing the mandate of Section 27 of the Evidence Act held as under: (SCC p.416, para 49) "49. As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if Page 6 of 34 the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited "... as relates distinctly to the fact thereby discovered....". The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act."
26. Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered. In the case at hand, the Yashika Camera which was recovered at the instance of Accused No. 3 was not identified by the father as well as the mother of the deceased. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased-John Bosco. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased-John Bosco or to PW-8 as the same was not purchased in their name. Further, the prosecution failed to examine the person on whose name the cell phone was purchased to show that it originally belongs to PW-8 to prove the theory of PW-8 that he had purchased and given it to the deceased John-Bosco. Further, the material objects, viz., Nokia phone and Motor Bike do not have any bearing on the case itself. The Nokia phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and similarly the motor cycle so recovered was of the father of Accused No. 3 and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. In fact, none of the witnesses have identified the camera or stated the belongings of John Bosco. The said statements are inadmissible in spite of the mandate contained in Section 27 for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police. Hence, in the absence of any connecting link between the crime and the things recovered, there recovery on the behest of accused will not have any material bearing on the facts of the case."
[Emphasis added]
07. Mr. R. Datta, learned counsel appearing for the appellant of the Crl. A. (J) No.28 of 2016 namely Manju Debnath has stated that there is no evidence in respect of the illicit relation between the appellants. The trial judge having accepted the statements of the Page 7 of 34 children (PWs.16 and 17) has committed grave error. According to Mr. Datta, learned counsel that if the evidence is appreciated following the established canons it would be apparent that the trial judge has not appreciated the evidence properly. If there was evidence of illicit relation, the complaint would not have been filed against the appellants on 18.07.2010 after a week from the said occurrence. At first instance, there was information from the elder brother of the deceased to the police (Exbt.4) that the deceased had committed suicide. The trial judge has accepted the testimonies of witnesses which are fraught with improved version and contradiction. Thus, the finding of guilt as returned by the trial judge is on mere surmise. There is no legal evidence against the said appellant. Mr. Datta, learned counsel has continued to submit that the testimony of PW-20 is not relevant for purpose of incriminating the appellants. Mr. Datta, learned counsel has further submitted that based on the illicit relation, strong motive can be deduced but cannot be incriminated for committing the offence. The motive has to be associated with the culpable act. The prosecution has admitted that no one has seen the appellants to overtly act to cause the murder or to instigate the same. PW-2 has introduced a new story in the prosecution case by stating that the appellant Manju Debnath fled away with the appellant Sanjoy Datta on two occasions and returned after a considerable time (about six months). Mr. Datta, learned counsel has further submitted that the story of illicit relation has not been proved by the legal evidence. The testimony of PW6 cannot be relied inasmuch as Manju Debnath (the appellant) used to work in the hotel of the other appellant namely Sanjoy Datta and they had close proximity. The latter part of the testimony of PW-16 is based on surmise and on strong suspicion. Page 8 of 34 According to Mr. Datta, learned counsel out of frustration, the deceased committed suicide and against the appellant namely Manju Debnath the culpable act cannot be attributed. There is evidence related to the common intention for causing murder. To buttress his contention, Mr. Datta, learned counsel has relied on a few decisions of the apex court and this court.
08. In Krishnan vs State represented by Inspector of Police reported in (2008)15 SCC 430 the apex court while dealing with a case where there was no direct evidence to prove connivance, but the finding of conviction was returned on assumption of illicit relation between the two accused persons has observed as follows:
"15. Before adverting to the above-stated arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offences and the prosecution case entirely rests on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii) 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
(iv) 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. [See Gambhir v. State of Maharashtra (1982) 2 SCC 351 : (AIR 1982 SC 1157)] See also Rama Nand v. State of Himachal Pradesh (1981) 1 SCC 511 : (AIR 1981 SC
738), Prem Thakur v. State of Punjab, (1982) 3 SCC 462 : (AIR 1983 SC 61), Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 : (AIR 1983 SC 446), Gian Singh v. State of Punjab, 1986 Suppl. SCC 676 : (AIR 1987 SC Page 9 of 34 1921), Balvinder Singh v. State of Punjab (1987) 1 SCC 1 :
(AIR 1987 SC 350).
16. As far back as in 1952 in Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 3443], it was observed thus:
"10. ......It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 : (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are (SCC pp. 185, para 153) :
(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) the circumstances should be of a conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
18. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp.206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be Page 10 of 34 conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
In Sashi Jena & Ors. v. Khadal Swain & Anr. [(2004) 4 SCC 236], this Court again reiterated the well-settled principle of law on circumstantial evidence."
09. On analyzing the circumstantial evidence, in Krishnan (supra), trial Judge has returned the finding of conviction that the murder had been committed in connivance, since there had been an illicit relation. Having re-appreciated the evidence the apex court had observed as follows:
"27. The learned trail Judge observed that even though there was no direct evidence to prove that A-1, in connivance with A-2, committed the murder of Rashita Begum, but since A-1 had illicit relations with A-2 and on the day of incident of murder, after A-3 had left his house, A-1 was seen by the deceased going to the house of A-2 and out of curiosity, the deceased went to the house of A-2 where she was jointly killed by A-1 and A-2. This finding of the learned trial Judge and as accepted by the High Court, in our view, is wholly untenable and cannot be sustained. There is absolutely no evidence appearing on the record to establish that A-1 had illicit relations with A-2 and in the absence of any cogent, believable and satisfactory evidence, A-1 could not be held guilty of the murder of the deceased only on hypothesis and suspicion. If the entire incident was narrated by PW-4 to her brother PW-1 before lodging a complaint (Ext. P-1) by him, it was but natural for PW-1 to have disclosed the name of A-1 in the complaint as an assailant, on the basis of which FIR (Ext. P-14) was registered by PW-18. The evidence of P.W.-3, P.W.-4 and P.W.-5 regarding removing of jewellery from the dead body of Rasitha Begum by A-1 and A-2 coupled with the version of P.Ws.-14 and 18 and the confessional statement allegedly made by A-1, was not found believable and reliable by the learned trial Judge and accordingly they were acquitted of the charge under Section 380, IPC. On the same set of evidence, no acceptable evidence was found against A-3 for holding him guilty of offence under Section 414, IPC, and he has been given benefit of doubt.
28. On independent analysis of the entire evidence on record, we find that the prosecution has failed to prove the charge of murder of Rasitha Begum against A-1 beyond reasonable doubt. As noticed in the earlier part of the judgment, we find material discrepancies, inconsistency and vital improvements in the testimony of P.Ws.-1, 3, 4 and 5 in regard to the presence of A-1 at the house of A-2 Page 11 of 34 and A-3 at the relevant time on the day of occurrence. Having given our careful consideration to the submissions made by the learned counsel for the parties and in the light of the evidence discussed above and tested in the light of principles of law highlighted above, it must be held that the evaluation of the findings recorded by the trial court and affirmed by the High Court suffers from manifest error and improper appreciation of evidence on record. Thus, on the basis of the evidence appearing on record, two views are possible, A-1 is entitled to the benefit of doubt."
[Emphasis added]
10. The reference has further been made to Kailash Gour and Ors. vs State of Assam reported in (2012)2 SCC 34 to contend that one of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he is proved guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between the accused "may have committed the offence" and "must have committed the offence" which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognized as a human right which cannot be wished away see Narendra Singh vs State of M.P.(2004)10 SCC 699 : 2004 SCC (Cri) 1893) and Ranjitsing Brahmajeetsing Sharma vs State of Maharashtra : (2005)5 SCC 294 : 2005 SCC (Cri)1057. It has been observed in Kailash Gour (supra) as follows:
"To the same effect is the decision of this Court in Ganesan v. Rama S. Raghuraman and Ors. (2011) 2 SCC 83 where this Court observed:
"39. Every accused is presumed to be innocent unless his guilt is proved. The Presumption of innocence is human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India."
The above views were reiterated by this Court in State of U.P. v. Naresh and Ors. (2011) 4 SCC 324. SCC p.335, para
34."
Page 12 of 34
11. In Kailash Gour (supra), to repel the previous view taken on reliance on the report of the Commission of Inquiry and to justify departure from the rule of evidence or the fundamental tenets of the criminal justice, it has been held as under:
"That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-a-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice."
12. Mr. Datta, learned counsel for the appellant [in Crl. A.(J) No.28 of 2016] has placed his further reliance on Sujit Biswas vs State of Assam reported in (2013)12 SCC 406 to contend that in Sharad Birdhi Chand Sarda vs State of Maharashtra reported in (1984)4 SCC 116) it has been observed that the standard of proof should be greater if the crime is graver. An accused may appear guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt of the accused is sought to be established by circumstantial evidence. There is no doubt that in a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from the established facts, as the circumstances lead to particular inference. The court must draw an inference with respect to whether the chain of circumstances is complete, and when the Page 13 of 34 circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime. All the circumstances so established must be of conclusive nature, and consistent only with the hypothesis of the guilt. A passage from Babu vs State of Kerala reported in (2010)9 SCC 189 has been approvingly reproduced in Sujit Biswas (supra). The said passage reads as under:
"27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact.
28. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution."
13. It is well settled that the circumstances which incriminate the accused are to be put to him during his examination under Section 313 Cr.P.C. else those can not be used against him and should stand excluded from consideration. Adverse inference can be drawn against the accused only and only if the incriminating materials stand fully Page 14 of 34 established, and the accused is not able to furnish any explanation for the same.
14. The apex court in Niranjan Panja vs State of West Bengal reported in (2010) 6 SCC 525 has underscored that for effecting a discovery, a statement has to be recorded on the part of the accused showing his readiness to produce the material object and it is only the part of his statement which is incriminating and leads to discovery becomes admissible. If the evidence of the witness does not inspire confidence then such evidence will be of any use. In Niranjan Panja (supra) it has been on the aspect of motive observed as follows:
"15. On this backdrop, we will first go to the question of motive which has not been considered by the High Court at all. The so- called motive as deposed by, PW-1, Tapan Kumar was that the accused Niranjan Panja used to speak against his father after his father stopped looking after his litigation. It appears that the deceased used to look after the litigation of number of persons and that was probably his profession. We do not think that merely because the deceased had stopped looking after the litigation of the accused, the accused had any strong motive much less to commit murder of the deceased. Motive is an important circumstance in the prosecution which is based on circumstantial evidence. However, we do not see any such strong motive on the part of the appellant. We, therefore, reject the theory that there was any motive much less any strong motive on the part of the accused so as to commit the murder of the deceased."
[Emphasis added]
15. In Digamber Vaishnav and Anr. vs State of Chhattisgarh reported in (2019) 4 SCC 522 the apex court has reiterated the law in respect of admissibility of fact as stated by the accused leading to the discovery. It is not the discovery of every fact that is admissible but the discovery of relevant fact is alone admissible. Relevance is nothing but the connection or the link between the facts discovered with the crime.
Page 15 of 34
16. A decision of the Gauhati High Court in Milan Debnath vs. State of Tripura reported in (2010)4 GLR 1 has been pressed to service but this court finds that a species of circumstantial evidence viz. the last seen together has been elaborately discussed in the said report. It has been held that the circumstantial evidence relating to „last seen together‟ must be of such nature that the entire chain of events is established and there is no room for any amount of suspicion. The suspicion may howsoever be grave cannot lead to conviction unless the offence alleged against the accused is found to be established beyond all reasonable doubt. Finally Mr. Datta, learned counsel has placed his reliance on a decision of this court in Bhusan Tripura vs State of Tripura reported in (2017)2 TLR 593 where it has been enunciated that in every case based upon the circumstantial evidence the question that needs to be responded to is whether the circumstances as relied upon by the prosecution are proved by reliable and cogent evidence and whether all the circumstances so relied have formed a chain so complete so as to rule out the hypothesis of innocence of the accused (para-18 of the report)
17. Let us for appreciating the challenge revisit the evidence in a meaningful manner to ascertain whether the finding of conviction is based on legal evidence or not. PW-1 and PW-9 (the complainant) have testified that on 11.07.2010 they had rushed to the house of their brother, Sridam Debnath (the deceased) getting information that he was lying dead on his bed. At that time, his wife Manju Debnath, one of the appellants was found absent in his house. Their children were residing somewhere else. There was none in the house. One Sahid Miah (not examined in the trial) informed PW-9 that his brother was lying on his Page 16 of 34 bed and his hut was found open. On his complaint (Exbt.6) the police launched the prosecution against the appellants. PW-9 has stated that before filing of the complaint (Exbt.6) he lodged one information in respect of the death of his brother (Exbt.4). One container (Exbt.MO1) and towel (Exbt.MO2) were seized in his presence. He has further stated as follows:
"On 18.07.2010 I lodged the written Ejahar against the accused Sanjoy Datta and Manju Debnath (Das). Sanjoy Datta is a resident of Bishramganj. I came to know that Sanjoy Datta was having an illicit relation with Manju Debnath (Das) and thereby I had suspicion they might have hatched up a conspiracy to kill of my brother at the time of incident my sister-in-law Manju Debnath (Das) were not present in the house but subsequently she was arrested from Karimganj with the accused Sanjoy Datta and taken o Melaghar PS."
In the cross-examination, PW-9 has clearly admitted that he never heard about the illicit relation of his sister-in-law (Manju Debnath) with the other accused person before the death of his brother.
PW-2, Raju Sukla Das and PW-3, Priyalal Das are witnesses from the neighbourhood. PW-2 has stated that one person came to him and told that the door of the hut of Sridam Debnath was open, but nobody was responding on his call. Then he rushed to the house of Sridam Debnath and found him lying dead on the bed. He called the local people including the Pradhan. The Pradhan informed the police station. In his presence, the inquest over the dead body of Sridam Debnath was done and he put his signature on the inquest report (Exbt.1). At that time, the wife (Manju Debnath) was not present in his house. He has categorically stated as under:
"We saw the relationship between Manju Debnath and her husband was not normal. We know there was an illicit relationship between Manju Debnath and Sanjoy Datta of Page 17 of 34 Bishramganj. Before the death of Sreedam Debnath, about two months back, once Manju fled away with Sanjoy Datta. Regarding this there was a meeting and I was present in the meeting and matter was compromised. Sreedam Debnath (now deceased) was partially paralyzed. Accused persons are identified in the dock."
The suggestions contrary to what PW-2 has stated in the examination-in-chief are all denied.
PW-3 has in addition to his appearing in the place of occurrence has stated that in the evening of 10.07.2010 he found both the appellants consulting and proceeding to the house of Sreedam Debnath. He told him to inform his brothers. Manju Debnath (wife of Sreedam Debnath) fled away with Sanjoy Datta and stayed away for about six months, but such dispute was settled by them. PW3 has also stated that 10/15 days before his death, Sreedam came to his house and told him that Sanjoy and Manju (the appellants) were conspiring to kill him but such statement was not found in the previous statement when the attention was drawn during the cross-examination.
PW-4, Pranadip Debnath did not state anything of material importance.
PW-5, Narayan Debnath is the seizure witness of towel. PW-6, Manik Miah has stated that on 25.07.2010 at about 12 noon the police brought the accused Sanjoy Datta in front of a shop of fertilizer and pesticides etc. situated at Melaghar bazaar. PW-6 has further stated thus : "the accused confessed in my presence that he purchased pesticides from that shop" but he could not disclose the name of the accused.
Page 18 of 34
PW-7, Badal Bhowmik is the owner of the pesticide shop but he failed to identify the accused, Sanjoy Datta.
Even in the cross-examination he failed to say when he sold the pesticides to Sanjoy Datta, as perceived, one of the appellants. He has stated that he did not mention the name of the accused person to the police.
PW-8, Pintu Das was the cook in the hotel of Sanjoy Datta, one of the appellants situated at Bishramganj bazaar. He was declared hostile and cross-examined by the prosecution. Nothing material has come out from his deposition.
PW-10, Smt. Sumati Debnath has stated that on 11.07.2010 they got the information that her brother-in-law „consumed poison‟. Immediately she with her husband rushed to his house. One container of poison was found besides him. Two days before the death of his father the son of the deceased went to the matrimonial uncle and he had been staying there. He has stated that Sanjoy Datta was known to her and he used to be seen in the house of Sreedam Debnath.
PW-11, Smt. Malati Debnath has stated that when Sreedam Debnath was found lying dead in his bed, she went to his house. The daughter of her brother was living with her elder brother. She found her brother lying in a tilted condition and a container of poison was lying beside him. Thereafter, PW-11 has stated as follows:
"Sanjoy Datta had illicit relation with my sister-in-law for quite some time before the death of my younger brother. I also warned my sister-in-law on many occasion but she did not care."Page 19 of 34
She has also stated that her sister-in-law fled away with the accused Sanjoy Datta. She has also stated that PW-11 had removed all her ornaments.
In the cross-examination PW-11 has admitted that she did not state to the police that she warned her about her illicit relation on many occasions. She even has admitted that she did not state to the police that Manju Debnath (Das) had taken away all ornaments. She has categorically stated as follows:
"I cannot say exactly who is responsible for the death of my brother.
I cannot say whether my brother consumed poison by someone else."
PW-12, Jiban Debnath did not state anything of material importance.
PW-13, Nityananda Saha used to deal in pesticides and fertilizers. According to him one person bought pesticides from their shop.
PW-14, Prasad Das and PW-15 Uttam Debnath have clearly stated that they do not know anything of the case.
PW-16, Smt. Rupali Debnath is the daughter of the deceased and the appellant, namely Manju Debnath (Das). She has stated that she has one brother namely Sourav Debnath. PW-16 has categorically stated that the other appellant namely Sanjoy Datta used to visit their house at Banerjee bagan even in the night, for which the father of PW-16 was annoyed and raised objection. The appellants had assaulted her father severely. On two occasions before death of Sreedam Debnath, the Page 20 of 34 appellant namely Manju Debnath (Das) fled with the other appellant but later on she returned home after about two months. PW-16 has stated inter alia as under:
"2/3 days ahead of the alleged incident, my elder brother Sri Sourav Debnath was sent to the house of our maternal uncle by our mother, Smt. Manju Debnath at Nalchar. So, on the day of occurrence, there was none at our residence except my father and mother. My father was died due to administration of pesticides. Hearing about the death of father, myself visited our house at Banarjee Bagan accompanied by my uncle and aunt and found the dead body of my father. My mother was missing from the house. After expiry a long period from the date of death of my father, one day police arrested my mother Smt. Manju Debnath along with accused Sanjoy Datta from Karimganj, Assam and brought them back to the State. Now, myself and my elder brother are staying at the residence of our uncle Sri Gopal Debnath at Jumerdhepa. After murder of my father, I have no knowledge about the whereabouts of my mother, Smt. Manju Debnath."
In the cross-examination, PW-16 has stated that her mother Manju Debnath used to work in the hotel owned by the accused, Sanjoy Datta or that her mother accompanied by the accused, Sanjoy Datta had sometimes assaulted her father. Hence, their relation was no cordial. She has also stated that her elder brother, Sourav Debnath (PW-17) was sent to the house of her maternal uncle at Nalchar but no such statement could be found in her previous statement as recorded by the police officer. She denied all the suggestions projected during her cross- examination in order to dent her statement. Further, she has stated in the trial that her father had no capacity to earn money. It was her mother who used to bear all expenses of the family by discharging her professions work. She has also stated in her statement in the trial that she did not know whether her mother had to stay outside their residence for a longer period for sake of discharging her professional work as a day Page 21 of 34 labourer or not. She has candidly admitted during the cross-examination as under:
"It is true that at the time of recording of my statement I expressed my opinion to the investigating police officer that my maternal uncle Sri Sunil Datta might be involved to the incident of murder of my father Sridam Debnath."
PW17, Sourav Debnath is the son of the deceased and the appellant, Manju Debnath. He has stated that on the fateful time of occurrence his younger sister Rupali Debnath, PW16 was in the house of her uncle Bimal Debnath, PW9 as she was staying there for prosecuting her studies. He was also a student, residing at the house of his maternal uncle at Nalchar. He has testified in the trial that his father used to earn money by giving private tuition as he was physically-challenged. He had noticed Sanjoy Datta (the other appellant) sleep with his mother (Manju Debnath) on the same cot. His father raised objection several times against such activities of his mother. The appellants out of their annoyance used to assault his father. On two occasions his mother left home with Sanjoy Datta and stayed together outside their residence for a long time on each of the occasions, „for which my uncle Sri Bimal Debnath took my sister Smt. Rupali Debnath to his home at Bairagi Bazar in consideration of bright future of my younger sister‟. [PW9 has stated nothing of that sort, but denied knowledge of illicit relation before death of his father] Two days before the occurrence he was shifted to the residence of his maternal uncle by his mother. When he got the information about killing of his father he had rushed to Melaghar Hospital. He found the dead body of his father there. But he did not find his mother either in the hospital or at their home. Page 22 of 34
In the cross-examination he has stated that they had only one hut on the homestead land having two separate doors. He has admitted that he had stated to the Investigating Officer as follows:
"since my mother had fled away with accused Sanjoy Datta on two occasions, my uncle Sri Bimal Debnath took my younger sister to the house of my house of my uncle permanently in consideration of bright future of my younger sister."
But such statement he could not find out in the previous statement recorded by the police under Section 161 of the Cr.P.C. The suggestions, as projected, contrary to what he has stated in the examination-in-chief were all denied. Without naming the neighbourers from whom he came to know that on the day of occurrence, his mother was present at their home, he has admitted that at the time of making the statement to the police he expressed that his maternal uncle namely Sunil Das might be involved in the murder of his father.
PW18, Sri Bikash Debnath, a constable of police has stated that he was under command along with other constables to go to Karimganj with the Investigating Officer, Balaram Sen. Having reached Karimganj, the team conducted raid in a house in the railway colony, Karimganj. They arrested both the appellants from that house. They seized a passbook of Tripura Gramin Bank, one LICI policy certificate, one mobile set from the possession of Manju Debnath by preparing the seizure list. He identified the seized articles (Exbt.MO3 series) and admitted the seizure list (Exbt.7) in the evidence. They brought both the appellants for production before the Magistrate. But during the cross- examination he failed to give the name of the house owner of the house from where the appellants were arrested and the said articles were seized. He had also failed to give the location of the said house.
PW19, Amrita Sannyashi was the another constable who accompanied during the raid at Karimganj in search of the appellants. He Page 23 of 34 replicated the statement of PW18 but he has further stated that one voter I-card (Exbt.MO4) was also seized from the appellant, Manju Debnath on preparing the seizure list. PW19 has also failed to provide the name of the house owner or the description of location.
PW20, Sanjib Sarkar was the elected member of East Kanishail Gram Panchayat for Ward No.1 under Karimganj District, Assam. Sandhya Datta and Chumki Datta were well known to him as the permanent resident of the said Ward. On 20.07.2010, one Assistant Sub- Inspector of Police of Karimganj PS met him and requested to visit the house of Sandhya Datta. On reaching there, he found a large gathering of local people. He had noticed presence of the police personnel from Melaghar PS, Tripura along with some police officers from Karimganj PS. At that time, Sandhya Datta told him that for last 7/8 days the appellants were staying in her house as tenants. They introduced themselves as husband and wife but she could not give the name of the female in full. In front of the police officers the female had „confessed‟ that she had husband in Tripura and both of them had killed her husband. They fled from Tripura and took shelter in the house of Sandhya Datta. The police officers of Melaghar PS arrested them in his presence.
During the cross-examination, he admitted that he did not introduce himself as the elected member of the Gram Panchayat, but he denied the suggestion in respect of confession made by the female.
PW21, Dr. Soumitra Mallik being the Medical Officer at Melaghar Sub-Divisional Hospital on 12.07.2010 carried out the post mortem examination over the body of one Sreedam Debnath in Page 24 of 34 connection with Melaghar PS UD Case No.19 of 2010 under Section 174 of the Cr.P.C. He has stated in the trial as follows:
"During the course of the post mortem examination, I found abrasion mark on neck measuring 2 cm X ½ cm, bruise on the back side of left scapula measuring 3 cm X ½ cm. There was no ligature mark over neck of the deceased. The abdomen there was nothing abnormality detected in the walls of the abdomen but the mouth was frothy blood tings saliva was found. In the semi digested food particles with kerosene oil like smell was found in the contents of the stomach. The time of death is 26 to 30 hours from the time of postmortem examination. During post mortem examination, I collected viscera and handed over it to a police officer for chemical examination. I also kept my opinion reserved regarding cause of death till submission of report from TSFSL, Narsingarh."
Having received the forensic report dated 28.08.2010 he gave his final opinion that the cause of death is „pyrethroid‟ poisoning. He has admitted the post mortem report (Exbt.8) in the evidence. But he has candidly stated that he did not mention the age of injuries found on the neck, backside of left scapula.
PW22, Balaram Sen who was posted as the Sub-Inspector of Police at Melaghar PS on 11.07.2010 had identified the signature of Milan Ch. Datta, the Officer-in-Charge of Melaghar PS on the printed form used for registration (Exbt.10) of the said UD Case No.19 of 2010. PW22. He had investigated the said UD Case and arranged for post mortem examination. Before the post mortem, he carried out the inquest over the dead body of Sreedam Debnath in presence of witnesses. The report thereof (Exbt.1) has been admitted in the evidence at his instance. He had also prepared the site map with index (Exbts. 12 and
13). He seized one container of pesticides from the place of occurrence by the seizure list dated 11.07.2010. From the said seizure list, the description of the said seized articles has been noted as follows: Page 25 of 34
"One small container of medicine (pesticide) with CYPERMETHRIN 10% E.C GOLD CYP - 10 is written on it, which was thought to contain pesticide medicine of about 50 gm, which is found by the side of dead body and which is found empty."
After the Melaghar PS case No.79 of 2010 was registered on the complaint of one Bimal Debnath, PW9, he was entrusted with the investigation. Thereafter, he again visited the place of occurrence. He recorded the statements of the persons acquainted with the fact of death of Sridam Debnath under Section 161 of the Cr.P.C.
On 20.07.2010 he received the information from one Beni Madhab Deb, SI of Police, Karimganj PS that both the appellants were living in a rented house at East Kanishail Railway colony at Karimganj. He requested the said police officer to detain both the accused persons (the appellants). Following the due administrative process, he being accompanied by two male constables and two female constables reached Karimganj by his official vehicle. On 20.07.2010 at about 2.30 they reached Karimganj and searched the house of one Sandhya Datta. He interrogated both the accused persons (the appellants) in presence of local people. At that time, they had confessed their guilt. During that time PW22 seized one bank pass book bearing SB A/c. No.505455, one LIC Policy Certificate bearing No.491641964 dated 25.08.2004 „in the name of Sreedam Debnath‟, one voter I-card bearing No.LHH0314989 and one mobile set having one sim of Aircel from the possession of Manju Debnath in presence of witnesses. He identified those articles as Exbt.MO3 and Exbt.MO4 and the seizure list, Exbt.7. According to him Sanjoy Datta (the appellant) during his interrogation confessed the guilt and disclosed the route used by him and the other appellant, Manju Page 26 of 34 Debnath for going to Karimganj from Melaghar. During that interrogation, Sanjoy Datta on 25.07.2010 took him to a shop named and styled as „Krishak Bandhu‟ situated at Melaghar market area. Thereafter, he collected the post mortem examination report and filed the chargesheet under Section 302 read with 34 of the IPC.
During the cross-examination, he has admitted that he examined the witnesses namely Bimal Debnath (PW9), Raju Sukla Das (PW2), Rakhal Debnath (PW1), Smt. Malati Debnath (PW11) and Sri Subhas Debnath [not examined in the trial] on 11.07.2010. Thereafter, he has categorically stated that:
"It is true that those witnesses did not disclose to me that accused Sanjoy Datta had an illicit relationship with accused Smt. Manju Debnath of that village. Out of such relationship both the accused persons committed murder of Sridam Debnath or that the accused persons fled away from Melaghar.
W.V: All those witnesses stated to him that accused Manju Debnath was missing from her matrimonial home after death of her husband Sridam Debnath.
There is no entry in the case diary w.e.f. 12.07.2010 to 17.07.2010 regarding any materials involving accused Sanjoy Datta and Smt. Manju Debnath with murder of Sridam Debnath."
It appears from the testimonies that Raju Sukla Das, PW2, or Priya Das, PW3 even did not tell him that he saw both the accused persons „consulting each other‟ and „proceeding‟ towards the house of Sridam Debnath. A categorical statement has been made by PW22 during his cross-examination.
"On 11.07.2010 I examined witness Raju Sukla Das in connection with UD case. But at that time, he did not state to me that on the earlier day, he saw accused Manju Debnath to talk with accused Sanjoy Datta and thereafter, to proceed towards the house of victim Sridam Debnath. But in Page 27 of 34 his second statement under section 161 of Cr.P.C. on 19.07.2010 witness Sri Raju Sukla Das disclosed the said fact fully to me but he did not tell me that he had narrated the said fact to the informant Sri Bimal Debnath."
He has categorically stated in respect of the testimony of PW16 (Rupali Debnah) as follows:
"Witness Miss Rupali Debnath at the time of recording her statement did not tell me that her mother Manju Debnath used to work in a hotel owned by accused Sanjoy Datta and that her mother accompanied by accused Sanjoy Datta also used to assault Sridam Debnath physically and that her father Sridam Debnath was physically handicapped and that Sridam Debnath was a private tutor by profession.
It is not a fact that none of the FIR named accused persons confessed their guilt at the time of investigation."
There emerged a confusion in respect of the LIC policy, Exbt.MO3 whether the policy was in the name of the deceased or not. For this purpose, we physically inspected the seized material (alamats) in the proceeding on 02.08.2009 and we have taken the following note:
1. Voter Identity Card (Exbt.MO4) issued by Election Commission of India under No.LHH0314989 (MO4 marked on 07.05.2015) is found in the name of Manju Debnath (Das), wife of Shridam Debnath.
2. One LIC certificate (Exbt.MO3) under New Janraksha Plan with Profits (with Accident Benefit) issued by Life Insurance Corporation of India, Branch No.II under policy No.491641964 dated 25.08.2004 which was opened by Manju Rani Das (Debnath) W/o Sridam Debnath. Sridam Debnath is only the nominee of the said policy.
3. One mobile phone (AC) of BYOND and the pass book (Exbt.MO3) of Tripura Gramin Bank, in the name of Manju Debnath (Das) under A/C No.50545, Showing the last balance at Rs.1,128/-.
4. The empty bottle of CYPERMETHRIN (Exbt.MO1) under brand name GOLDCYP-10 which was collected from the place of occurrence and marked by the SFSL as „sample B‟, whereas the other empty bottle of viscera of Sridam Debnath, marked as „sample A‟, were the alamats, those are opened by this court.Page 28 of 34
5. The towel (Exbt.MO2) belonging to the deceased have also been sent before this court under Exhibit No.2.
The circumstances those were used against the appellants are (1) missing of Manju Debnath, the appellant from the house on 11.07.2010 from the house of Sridam Debnath, the deceased, (2) apprehension of the deceased that the appellants hatched up a conspiracy to kill him as stated to PW9. The appellants were seen to have been consulting each other and proceeding towards the house of Sridam Debnath by PW3, (3) illicit relation between the appellants as the probable motive to cause murder, (4) confession made by Sanjoy Datta before the shop of pesticides in presence of PW6, (5) the purchase of pesticides by Sanjoy Datta, the appellant, (6) shifting of PW17 to the house of his maternal uncle 2/3 days prior to the occurrence, (7) arrest of the appellants from Karimganj when they were residing in a rented house as husband and wife, (8) confession made in the house of Sandhya Datta on 20.07.2010 in presence of local people, (9) confession made by Sanjoy Datta during his interrogation and (10) the abrasion marks on the neck and bruise on the back side of scapula.
Apart that, the trial court has taken another circumstances for consideration is that if victim Sridam Debnath had committed suicide, there was no reason for accused Smt. Manju Debnath (Das) to carry with her the LIC certificate of victim Sridam Debnath when accused Smt. Manju Debnath (Das) along with accused Sanjoy Datta had been living in a rented house at Karimganj introducing themselves as husband and wife. It may be noted here that the trial judge has misread the LIC policy. The LIC policy is in the name of Manju Debnath and the deceased was the nominee. According to the trial judge the conduct of the accused Page 29 of 34 persons destroyed the presumption of innocence. Thus, their plea that they were implicated falsely cannot survive inasmuch as the circumstantial evidence, adduced by the prosecution has established a complete chain leaving no reasonable ground to infer their innocence.
Let us now appreciate the evidence for exploring whether each of the circumstances is substantiated or whether the circumstances so established have created a chain consistent with the guilt of the accused persons in total exclusion of hypothesis of their innocence. Missing of the appellant, Manju Debnath There is no evidence that Manju Debnath stayed with her husband in the same hut in the night of 10.07.2010. Even the witness from the neighbourhood, PW2 and PW3 did not state anything about stay of Manju Debnath in the night in the same room with the deceased. However, PW3 has stated in the trial that in the evening of 10.07.2010 he found Manju Debnath and Sanjoy Datta consulting and proceeding to the house of Sridam Debnath. Even though he had appeared in the place of occurrence in the morning on 11.07.2010, but he did not disclose that fact to anyone at least no witness has come forward to corroborate such statement being made to him by PW3. Even though the police officer (PW22), appeared in the place of occurrence where PW3 was also available, but he did not disclose the said fact to the police officer. The police officer has clearly stated that no one had stated to him about the illicit relation between the appellants till 17.07.2010. Thus, the episode of missing away cannot be treated as incriminating to the appellants or Manju Debnath alone. The testimony of PW3 cannot be relied for disclosing the fact after a week when the information of murder was Page 30 of 34 lodged to the police station and the police was in search of the evidence. While making this observation we have taken notice of arrest of the appellants on 20.07.2010.
Apprehension of the deceased that the appellants hatched up a conspiracy to kill him as stated to PW9. The appellants were seen to have been consulting each other and proceeding towards the house of Sridam Debnath by PW3.
PW3 and PW9 are the witnesses who stated in the trial that the deceased, 10/15 days before the day of occurrence, told him that he might be killed by his wife and Sanjoy Datta. PW9 had also stated in the same line but he in the cross-examination stated that his sister-in-law (Manju Debnath) used to remain absent from their house for earning livelihood for a considerable period. In sequel, he has stated that „before the container of my brother never I heard about any illicit relation with the accused person. Thereafter, he made the following statement in the cross-examination.
„It is a fact simply I lodged this case on suspicion. I cannot say whereabouts of my sister-in-law at the time of my brother‟s death‟. Both PW3 and PW9 cannot be relied for drawing any adverse inference against the appellants for the same reason of belated disclosure and improvement as made, as no such suspicion was expressed having referred to the purported apprehension of the deceased in the complaint (Exbt.4) filed by PW9 on 11.07.2010.
Illicit relation between the appellants as the probable motive to cause murder From reading of the evidence, we do not find any cogent, believable and satisfactory evidence. None of the witnesses has stated what was the basis of their inference of illicit relation between the appellants. Bald statement falls in the realm of hypothesis and suspicion. Only PW17 has stated that once he saw Sanjoy Datta to sleep with his Page 31 of 34 mother on the same cot. But in the cross-examination, he stated that there was only one hut. This castes serious doubt in respect of the truthfulness of the statement made by PW17. Even if, it is assumed that there was an intimate relation bordering an illicit relation, but there is no evidence that there was drive to exterminate Sridam Debnath. Even the prosecution has acceded that there is no evidence to demonstrate that there was any sort of conspiracy or overt act to provide the foundation of any strong motive, much less to commit murder of the deceased. There cannot be any amount of doubt that motive is an important circumstance in the prosecution which can be gathered only from the circumstantial evidence. Illicit or intimate relation cannot essentially provide the motive to murder. From the evidence, we cannot gather any motive, much less any strong motive on the part of the accused to commit murder. Confession made by Sanjoy Datta before the shop of pesticides in presence of PW6, (ii) Confession made in the house of Sandhya Datta on 20.07.2010 in presence of local people and (iii) confession made by Sanjoy Datta during his interrogation. The confession as referred above are all hit by Sections 25 and 26 of the Evidence Act as those confessional statements were made to or before the police officer and as such „confession‟ cannot be proved against the appellant or the appellants in view of Section 25 of Evidence Act. In State Of Gujarat vs Anirudh Singhh And Another reported in (1997) 6 SCC 514, the apex court had occasion to observe as follows:
"What impelled the introduction of this provision was the overwhelming evidence which disclose that the powers vested in the police under the code were often issued and abused by police officers investigating crimes for extorting a confessional statement from the accused with a view to earning credit for the prompt solution of the crime and/or to secure himself against allegations of supineness or neglect of duty. It was also realised that once a police officer succeeds in extorting a confession from the person Page 32 of 34 accused of the commission of the crime by threats, inducements, etc. the real offender becomes more or less immune from arrest. Therefore, the purpose of the restriction under Section 25 of the Evidence Act is, broadly speaking, two fold, namely, (i) to protect the person accused of a crime from third degree treatment and, more importantly, (ii) to ensure a proper and scientific investigation of the crime with a view to bringing the real culprit to book.
17. It would, thus, be seen that the object of Section 25 is to ensure that the person accused of the offence would not be induced by threat, coercion or force to make a confessional statement and the officers also would make every effort to collect the evidence of the commission of the crime dehors the confession to be extracted from the accused while they are in the custody of the police."
Section 26 of the Evidence Act has prohibited admission of the confession made by an accused while in the custody of the police. It provides that no confession made by a person whilst he is in the custody of police officer, unless made in the immediate presence of a Magistrate, shall be proved as against such person. Hence, use of confession for returning the finding of conviction is unsustainable in law. Purchase of pesticides by Sanjoy Datta, the appellant Whether Section 27 of the Evidence Act can be applied for discovery of „shop‟ of pesticides in the open market area of Melaghar? The answer must be in the negative as it was known to all that the pesticides were sold from that shop. Hence, it is not a discovery of a new fact for the simple reason that no material object had been recovered from that ship at the instance of Sanjoy Datta, the appellant and the confession is inadmissible. Moreover, purchase of pesticides by Sri Sanjoy Datta (the appellant) has not been proved. PW7 has failed to identify the appellant (Sanjoy Datta) as the person who was brought by the police officer to his shop. Even he did not state in the trial that he sold one bottle of Page 33 of 34 cypermetharin to Sanjoy Datta. Even in the trial the empty container Exbt.MO1 was not shown to him.
'Shifting' of PW17 to the house of his maternal uncle 2/3 days prior to the occurrence PW16 has stated in the trial that her elder brother Sourav Debnath was sent to the house of their maternal uncle 2/3 days prior to the occurrence. Thus, on the night of occurrence, there was none except their parent. PW17 has corroborated the said statement. Even though this episode has generated a strong suspicion but considering the extreme poverty the family faced, it may not be, on the face, accepted as adverse to the appellants unless further materials are placed in the evidence to prove a design.
Arrest of the appellants from Karimganj when they were residing in a rented house as husband and wife This evidence that the appellants were living together in the rented house can also be used in the chain of circumstances. Manju Debnath, the appellant in her statement while examined under sec. 313 Cr.P.C. has stated she went to Karimganj for her treatment, but the fact that the appellants were living as husband and wife is not a legal evidence as it has been hit by Section 60 of the Evidence Act for non-examination of Sandhya Datta. Thus, this episode leads independently nowhere, but again generates strong suspicion.
Abrasion marks on the neck and bruise on the back side of scapula The injuries as referred above cannot make the prosecution case anyway stronger inasmuch as the post-mortem doctor (PW21) has categorically Page 34 of 34 stated that age of injuries found on the neck - backside of left scapula are not mentioned in the post mortem report. Therefore, the story of overpowering the deceased for administering poison could not come out of the shroud.
Even, the investigation did follow the lead given by PWs16 and 17 that their maternal uncle, namely Sri Sunil Datta might have murdered their father [the deceased]. Even the investigation officer (PW22) has clarified what he had done after such revelation.
Having considered all the episodes as stated above, we do not find a chain of episodes has been formed to point out to the guilt of the appellants in exclusion of any hypothesis of innocence. Thus, in the considered opinion of this court, the judgment and order dated 22.04.2016 delivered in Case No. Sessions Trial 38(WT/S) of 2012 by the Addl. Sessions Judge, West Tripura District, Sonamura cannot stand the scrutiny of laws and hence, are set aside and quashed on benefit of doubt. As consequence, the appellants be set at liberty forthwith, if not wanted in any other case.
In the result, these appeals stand allowed.
Send down the LCRs forthwith.
JUDGE JUDGE MB