Tripura High Court
Convict vs The State Of Tripura on 15 June, 2020
Author: Arindam Lodh
Bench: Akil Kureshi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) NO.29 OF 2018
Sri Sajal Sarkar,
S/O Sri Arun Sarkar,
Resident of Durbasakhala, P.S. Nepaltilla,
District: Dhalai, Tripura.
----Convict-appellant(s)
Versus
The State of Tripura, represented by the
Secretary, Home Department,
Government of Tripura.
----Respondent(s)
For appellant(s) : Mr. Raju Datta, Advocate
For respondent(s) : Mr. Sumit Debnath, Addl. P.P.
Date of hearing : 09.06.2020
Date of delivery of
Judgment & Order : 15.06.2020
Whether fit for reporting : YES
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER
(Arindam Lodh, J)
The instant appeal assails the correctness of the
judgment dated 02.03.2012, passed by the learned Sessions
Judge, North Tripura, Kailashahar in case No. Sessions Trial
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58(NT/K) of 2011, convicting the appellant for the offence
punishable under Sections 376(1) and 302 of IPC and
sentencing him to suffer imprisonment for life and to pay a fine
of Rs.10,000/- for the offence under Section 302 of IPC and
also sentencing him to suffer imprisonment for 10(ten) years
for commission of offence under Section 376(1) of IPC and to
pay a fine of Rs.10,000/- with default stipulation and it was
directed that both the sentences shall run concurrently.
2. FIR No.10 of 2011 dated 08.07.2011 was registered
by the Officer-In-Charge of Nepaltilla Police Station on the basis
of a complaint lodged by one Sankar Sinha, father of the
deceased, inter alia, stating that on 08.07.2011, he along with
his family members went to Jagannath Temple, and at that time
none but his elder daughter was alone in the house. Someone
raped her and killed her by strangulating her neck with
synthetic napkin and left her on the bed in naked condition.
2.1. On the basis of the said information the investigation
was proceeded. In course of investigation, the appellant was
arrested. The police seized the wearing apparels of the
deceased-daughter of the informant(PW1). The bed-sheet, the
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blanket, the napkin and other articles were also seized by the
police. Inquest was prepared, post-mortem was conducted, the
vaginal swab, saliva and all the seized articles, including the
wearing apparels of the deceased, were sent to the State
Forensic Science Laboratory(SFSL) for report.
2.3. After conclusion of investigation, the investigating
officer, being satisfied with the evidence and materials on
record submitted charge-sheet before the Court of learned
Judicial Magistrate, 1st Class, who committed the case to the
Court of learned Sessions Judge for the purpose of trial.
2.4. Being committed, the learned Sessions Judge framed
charges against the appellant under Sections 448/376(1)/302
of IPC.
The appellant pleaded not guilty and claimed to be
tried.
2.5. To establish the charges, the prosecution examined
17 witnesses and introduced some documents, including the
medical examination report of the victim-girl and the Forensic
Laboratory test report.
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2.6. After the conclusion of recording of evidence, the
accused was examined under Section 313 of CrPC, where he
was noticed in regard to all the incriminating evidence and
materials revealed against him to which he claimed to be
innocent. However, he did not adduce any evidence in his
defence.
2.7. Having heard the learned counsels and on perusal of
the records, the learned Sessions Judge found the appellant
guilty of committing offence under Sections 376(1) and 302 of
IPC and sentenced the appellant as afore-stated.
However, the appellant was acquitted from the
charge under Section 448 of IPC.
2.8. Being aggrieved, the appellant has preferred the
instant appeal before this Court.
3. We have heard Mr. Raju Datta, learned counsel
appearing for the appellant as well as Mr. Sumit Debnath,
learned Addl. P.P. appearing for the State respondent.
4. Mr. Datta, learned counsel for the appellant
contended that the prosecution has failed to establish the case
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of rape and murder as levelled against the appellant. He
assiduously argued that from a bare reading of the prosecution
evidence it would be revealed that the statements of the
witnesses were unworthy and without any credence. There are
lots of improvements in narrating the incident, involving the
appellant in connection with the crime and many statements
were made for the first time in course of adducing evidence
before the trial Court.
Learned counsel had urged to set aside the judgment
of conviction passed by the learned Sessions Judge.
5. On the other hand, Mr. Debnath, learned Addl. P.P.
contended that all the circumstances, as emerged from the
evidence of the prosecution witnesses pointed towards the guilt
of the appellant alone and none else. Relying upon the evidence
of PWs 2, 4, 5 and 14, he contended that the appellant had no
business to ask PWs 2 and 4, who would come to Jagannath
Temple and who would stay in the home.
Next, the learned Addl. P.P. contended that PW5 in
his examination-in-chief deposed that he had seen the accused
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running away from the house of the informant, the father of the
deceased. PW14 deposed that at about 12.00 pm, he noticed
the appellant to enter into the house of his brother, Sankar
Sinha(PW1).
Defending the judgment of the learned trial Judge,
learned Addl. P.P. had urged to maintain the conviction and
sentence, as imposed upon the appellant.
6. In view of the aforesaid submissions of the learned
counsels appearing for the parties, we have perused the
evidence and materials on record to bring home the charges
levelled against the accused-appellant.
6.1. PW1, Sri Sankar Sinha, the father of the deceased-
victim, is the informant of the incident. He deposed that on
08.07.2011, he along with his wife and two daughters went to
Jagannath Temple. His elder daughter, the deceased herein
could not accompany them as she had been suffering from
some ailments. They returned home at about 3.30 pm when he
saw the door was closed from outside. He further deposed that
he was hungry and after opening the door he saw his daughter
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was lying on the cot, but he did not notice her carefully. In the
meanwhile, his second daughter had called the deceased by
touching her body when she found that her body was tied with
hard substance. She called PW1 and when he went there he
saw the throat of the victim was bounded by a gamcha(napkin)
tightly. He noticed bloodstains in her mouth and ears. He also
noticed bloodstains on the bed and when he removed the
blanket he saw her in a naked condition. He found her pachra
was kept in another cot with bloodstain. Her panty was also
seen by the side of her pachra.
Next, he deposed that his daughter was raped and
murdered as he had seen her.
He further deposed that on that fateful day, his
brother Bimal Sinha(PW4) had called the appellant, Sajal Sarkar
in their house to prepare firewood for puja purpose, when Sajal,
the appellant herein, asked his wife who would stay in the
room, and who would go to the puja. He further deposed that
Sajal was seen by the witnesses while moving in the house and
his departure.
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Thereafter, he wrote the ejahar and submitted the
same to the Officer-In-Charge of the police station. He
identified the ejahar and also identified the seized articles, like
pachra, panty, bloodstained bed-sheet, napkin, etc.
In his cross-examination, this witness was
confronted in regard to his statement which he made in his
examination-in-chief that the appellant had enquired in the
morning who would stay in the house and who would go to the
puja. When his attention was drawn to his 161 CrPC statement,
no such statement was found. He admitted that he did not
mention in the ejahar that his younger brother(PW4) had called
the appellant for wood-cutting.
6.2. PW2, Smt. Emai Sinha is the mother of the victim
who deposed that on 08.07.2011 she went with her husband to
Jagannath Temple. The appellant came to her and asked her
who would go to the temple and who would stay in the home.
When she told him that her daughter would stay as she had
been suffering from dysentery and they would go to the temple.
She further deposed that at about 4.00 pm she returned home
and saw the dead body of her daughter-Manika.
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She further stated that her sister-in-law, Rekha
Sinha had seen the appellant to enter into their house. She
further deposed, on that day the appellant came to their house
for wood-cutting as he was called by Bimal Sinha(PW4).
Being confronted with cross-examination, she
admitted that she did not tell darogababu that Rekha(PW14)
had seen the appellant to enter into their house. She also
admitted that she did not tell the Officer-In-Charge that Bimal
Sinha(PW4) had called the appellant for wood-cutting.
6.3. PW3, Sri Rasaraj Singha deposed that he had seen
the dead body of the victim.
6.4. PW4, Sri Bimal Sinha, the younger brother of the
informant deposed that he called the appellant to prepare
firewood. He further deposed that the appellant asked him who
would go to Jagannath Temple and who would stay at home.
In his cross-examination, this witness admitted that
he did not tell the investigating officer that the appellant asked
him that who would go to the temple and who would stay in the
house.
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6.5. PW5, Sri Kishore Sinha deposed that on 08.07.2011
at 2-2.15 pm while he was going to market he saw the
appellant running away from the gate of the informant. When
he called him and asked why he was running from the house of
the informant? He further deposed that in reply to his query the
appellant told him that there was none in his house.
6.6. PW6, Sri Kajal Deb Roy is a witness in presence of
whom the appellant had confessed his guilt on 17.07.2011 at
about 12 noon.
6.7. PW7, Sri Mrinal Kanti Sinha is also a witness of the
confessional statement. He deposed that on 15.07.2011 at
about 10-11 am, the confessional statement was made by the
appellant.
6.8. PW8, PW9 and PW10 are not the material witnesses
in relation to the crime.
6.9. PW11, Sri Pranab pal is also a witness to the
confessional statement.
6.10. PW12 is not a material witness.
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6.11. PW13, Sri Sukhomoy Sarkar deposed that on
08.07.2011 at about 2-2.30 pm while he was going to his land
for grazing of cattle, he saw the appellant going towards Laljuri
road very fast. Being asked, the appellant told him that he was
going to search cattle. He further deposed that he found
suspicious movement of the appellant.
6.12. PW14, Mst. Rekha Sinha is the younger sister of the
informant, Sankar Sinha. She deposed that on 08.07.2011 she
was working at the hospital wherefrom the house of her brother
was visible. She further deposed that at about 12.00 pm she
noticed that the appellant was entering into the house of her
brother, but, she did not take it otherwise as the appellant was
their neighbour. Proceeding further, she deposed that while
returning to home she saw the door of the house of her brother
was closed as they all went to Jagannath temple. Further, she
deposed that she noticed a pair of chappal belonging to the
appellant.
In her cross-examination she denied that chappal
was not left by the appellant or that she did not see the chappal
outside. She further revealed in her cross-examination that the
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investigating officer recorded her statement after 4/5 days of
the occurrence.
6.13. PW15 is the police witness.
6.14. PW16, Sri Ratan Debbarma is the investigating
officer of the case. He deposed that after receipt of the
information he went to the place of occurrence, seized the
wearing apparels by preparing seizure list along with blanket,
bed-sheet, prepared site-map and recorded the statements of
one witness, namely Rangsaibati Reang. He arranged for
postmortem of the body of the deceased, arrested the accused
person and also arranged potency test of the accused. He also
seized the wearing apparels of the accused(Exbt.2 series).
He further deposed that during police custody the
accused had confessed his guilt and he recorded the
confessional statement in presence of the witnesses. PW16 also
recorded the statements of the witnesses of the confessional
statement.
He further deposed that he sent the vaginal swab,
the sample of saliva and bloodstained articles to the SFSL. He
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also sent the samples of semen/spermatozoa of the accused to
the SFSL. He received the reports thereafter.
6.15. PW17, Dr. Subhankar Bhattacharjee, the Medical
Officer who conducted the postmortem examination over the
dead body of the victim. He found several injury marks on the
person of the deceased. He opined that before death, sexual
intercourse was done forcibly. As PW18 he further deposed that
one Dr. P.N. Darlong had examined the accused, who was found
to be capable for sexual intercourse.
7. We have carefully examined the reports of the SFSL
where the vaginal swab of the deceased and other seized
articles of the deceased were scientifically examined. It would
be relevant to reproduce the details of the report:
"Details of parcel(s) and exhibits(s) received:
Parcel Description of Exhibit(s)
No.
01 One sealed wooden parcel put into a pitch board box
covered with cloth contained the following exhibits:
1 Exhibit- One white paper envelope contained a stick
E7 wrapped with cotton said to contain saliva of
deceased, Manika Sinha
2 Exhibit- One white paper envelope contained a small
E8 piece of hard structure said to be the nail of
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deceased, Manika Sinha
3 Exhibit- One white paper envelope contained some
E9 black strands said to be the hair of deceased,
Manika Sinha
4 Exhibit- One white paper envelope contained a stick
E10 wrapped with cotton said to be the vaginal
swap of deceased, Manika Sinha
5 Exhibit-A One sealed plastic container contained a small
piece of gauze cloth having dark brown stain
said to be the blood sample of accused person,
Sajal Sarkar.
6 Exhibit-B One sealed plastic container contained a small
piece of gauze cloth said to contain semen
sample of the accused person, Sajal Sarkar.
7 Exhibit-C One sealed plastic container contained three
pieces of black strands said to be the public
hair of accused person, Sajal Sarkar.
8 Exhibit-D One sealed plastic container contained some
black strands said to be the plucked public hair
of accused person, Sajal Sarkar.
9 Exhibit- One red color top (ganjee) said to be the
F1 wearing apparel of the deceased, Manika
Sinha.
10 Exhibit- One black-white-red color (check) gamchha
F2 said to be seized from the place of occurrence.
11 Exhibit- One blue color blanket with floral prints
F3 (yellow-orange-red-white) said to be seized
from the place of occurrence.
12 Exhibit- One red-black floral printed light brown color
F4 bed cover said to contain blood stain.
13 Exhibit- One violet color Manipuri Pachhra said to be
F5 seized from the place of occurrence.
14 Exhibit- One ash color pant said to be the wearing
F6 apparel of the deceased, Manika Sinha.
15 Exhibit- One long navy blue jeans pant said to be the
F7 wearing apparel of the accused person, Sajal
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Sarkar
16 Exhibit- One black and white full sleeve ganjee said to
F8 be the wearing apparel of the accused person,
Sajal Sarker.
11. Report No. SFSL. NO. 254/11, BIO/SERO NO. 103/11
Date 29.08.2011.
The exhibits marked E10, B, F1, F3, F4, F5, F6, F7 and
F8 were examined by visual examination under different
light sources, Acid phosphatase test and Microscopic
examination for detection of semen/seminal
stain/spermatozoa of human origin.
The exhibit marked E7 was examined by Starch-Iodine
test for detection of saliva. The exhibits marked E7 and B
were further examined by absorption inhibition test for
detection of blood group from saliva stain and semen
stain respectively.
The exhibits marked E8, A, F1, F2, F3, F4, F5, F6, F7 and
F8 were examined by Tetramethyl Benzidine (TMB) test,
Phenolphthalein test and Takayama test for detection of
blood. The exhibits marked A, F1, F2, F3, F4 and F6 were
further examined by Gel diffusion test and Absorption
elution test for origin and grouping of blood respectively.
The exhibits marked E9, C,D, F2, F3, F4 , F5 and F6 were
examined by visual examination and Microscopic
examination for detection and analysis of hairs.
Based on the examination, the results obtained are given
below:
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1. Seman/seminal stain/spermatozoa of human origin
could not be detected in the exhibits marked E10, F1, F3,
F4, F5, F6, F7 and F8.
2. Spermatozoa of human origin could be detected in the
exhibit marked B.
3. Blood group of the exhibit marked B could not be
determined.
4. Blood stain of human origin could be detected in the
exhibits marked A, F1, F2, F3, F4 and F6.
5. Blood stain could not be detected in he exhibits
marked E8, F5 and F7.
6. Blood group of exhibit marked A could be determined
as O group.
7. Blood group of exhibits marked F1, F2, F3, F4 and F6
could be determined as A group.
8. No hair could not be detected in the exhibits marked
F2, F3, F4, F5 and F6.
9. Human public hair could be detected in the exhibits
marked C and D.
10. Human hair could be detected in the exhibit marked
E9.
11. Saliva could be detected in the exhibit marked E7.
12. Blood group of the exhibit marked E7 could not be
determined."
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8. On close scrutiny of the evidence and materials and
having heard the learned counsels appearing for the parties to
the lis, it has become apparent that in the present case there is
no direct evidence to connect the accused with the commission
of offence and the prosecution case entirely rests on
circumstantial evidence.
The Apex Court as well as 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
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innocence.[(Reference Gambhir v. State of Maharashtra
[(1982) 2 SCC 351 : AIR 1982 SC 1157], Rama
Nand v. State of H.P. [(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 Supp SCC 676 : AIR 1987
SC 1921] and Balwinder Singh v. State of Punjab [(1987) 1
SCC 1 : AIR 1987 SC 350]."
9. Looking back to the case of Hanumant Govind
Nargundkar v. State of M.P., AIR 1952 SC 343 we may
profitably take into account the following observations of the
Supreme Court: (AIR pp. 345-46, para 10)
"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."
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10. Again, we may gainfully take note of the celebrated
decision of the Supreme Court in Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC 116, wherein
the Supreme Court while dealing with circumstantial evidence
held that the onus was or the prosecution to prove that the
chain is complete and the infirmity or lacuna in prosecution
cannot be cured by false defence or plea. The Supreme Court in
that case had laid down the following conditions which must be
fully established before convicting a person relating to a case
based on circumstantial evidence:(SCC p. 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
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show that in all human probability the act must have been
done by the accused."
11. A reference may also be made to a decision of the
Apex Court in C. Chenga Reddy v. State of A.P., (1996) 10
SCC 193, wherein it was 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 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."
12. In Trimukh Maroti Kirkan v. State of
Maharashtra, (2006) 10 SCC 681, the Apex Court held as
under: (SCC p.689, para 12)
"12. In the case in hand there is no eyewitness of the
occurrence and the case of the prosecution rests on
circumstantial evidence. The normal principle in a case
based on circumstantial evidence is that the circumstances
from which an inference of guilt is sought to be drawn must
be cogently and firmly established; that those
circumstances should be of a definite tendency unerringly
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pointing towards the guilt of the accused; that 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 they should be incapable of explanation on
any hypothesis other than that of the guilt of the accused
and inconsistent with their innocence.
The same principles were reiterated in Sunil Clifford
Daniel v. State of Punjab, [(2012) 11 SCC 205], Sampath
Kumar v. Inspector of Police, [(2012) 4 SCC 124], and
Mohd. Arif v. State(NCT of Delhi, (2011) 13 SCC 621)] and
a number of other decisions."
13. In Kali Ram v. State of H.P., (1973) 2 SCC 808,
the Supreme Court observed thus: (SCC p.820, para 25)
"25. Another golden thread which runs through the web
of the administration of justice in criminal cases is that if
two views are possible on the evidence adduced in the case,
one pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused
should be adopted. This principle has a special relevance in
cases wherein the guilt of the accused is sought to be
established by circumstantial evidence."
14. It would be apposite to again refer the judgment of
the Apex Court in Sharad Birdhichand Sarda(supra) wherein
the Supreme Court observed thus: (SCC pp.127-28)
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"Graver the crime, greater should be the standard of
proof. An accused may appear to be 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 the 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 or the accused is sought to be established
by circumstantial evidence."
15. Thus, in view of the aforesaid principles laid down by
the Apex Court we may un-hesitantly hold that before
convicting an accused the Court must draw an inference with
respect to whether the chain of circumstances is complete, and
when the circumstances therein are collectively considered, the
same must lead only to the irresistible conclusion, that the
accused alone is the perpetrator of the crime in question. All the
circumstances so established must be of a conclusive nature,
and consistent only with the hypothesis of the guilt of the
accused.
16. Now, keeping in mind the above settled propositions
of law, let us re-examine the evidence of the prosecution
witnesses. While convicting the appellant, the learned Sessions
Judge had arrived at the following findings:
Page 23 of 32
"On scrutiny and evaluation of the evidence on
record some circumstances come out for implicating
the accused.
The first circumstance is the presence of the
accused in the house of the deceased;
The second circumstance is the entry of the
accused in the house of the deceased in the noon time
and departure from that house;
The third circumstance is the suspicious
movement of the accused seen by the witnesses; and
The fourth circumstance is the abscontion of
the accused just after the occurrence.
Apart from this there is evidence of giving
confessional statement by the accused but that
confession though relevant is not admissible as given
before the Police. Further the circumstance that comes
out from the evidence on record it is transpired that
none the else except the accused was responsible for
commission of rape and murder on the victim."
17. In view of the aforesaid findings returned by the
learned trial Judge, firstly, we are to examine whether the
presence of the accused in the house of the deceased or his
entry in the house has been established by cogent evidence.
Page 24 of 32
The statement of PW2 that being called by Bimal
Sinha(PW4) the appellant came to their house for wood-cutting
and that the statement of PW2 that her sister-in-law, Rekha
Sinha(PW14) had seen the appellant to enter into her house
appears to be the first time statement made by her before the
trial Judge. Being confronted with cross-examination she
admitted that these statements are not found in her statements
recorded under Section 161 of CrPC.
17.1. Similarly, the deposition of PW4 that the appellant
wanted to know from him that who would go to the temple and
who would stay in the house is also found to be the first time
statement made by this witness in course of trial.
17.2. The statement of PW5 that while he was going to
market he had seen the accused running away and on being
asked the accused replied that he was running from the house
of the informant as there was none in the house is also found to
be the first time statement made before the trial Judge in
course of trial. When his attention was drawn to his statement
recorded under Section 161 of CrPC it was found to be absent.
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18. In our considered view, the prosecution witnesses as
stated above have made major improvements in their
statements in course of trial, which they did not state in course
of their examination under Section 161 of CrPC. As such, the
presence of the accused in the house of the deceased and the
second circumstance that the accused had entered into the
house of the deceased in the noontime and his departure from
that house have not been established beyond reasonable doubt.
19. The evidence of PW13 deposing that he asked the
accused where he was going and at that time, according to him,
his movement was suspicious.
According to us, on the basis of this statement
without something more, one person cannot be held to be guilty
of commission of such offence, like rape and murder. We are of
the opinion, that it was his own perception when he perceived
the movement of the accused as suspicious.
20. The fourth circumstance as relied upon by the
learned Sessions Judge is that of the abscontion of the accused
just after the occurrence. This is no more res integra that mere
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abscontion of a person from the site of offence after the
incident is not enough to hold that person guilty of committing
offence in absence of other circumstantial corroborating
evidence, linking with the other circumstances prior to the
incident and subsequent to the incident.
This aspect came for consideration before the Apex
Court in the case of Sujit Biswas v. State of Assam, (2013)
12 SCC 406 as relied upon by Mr. Datta, learned counsel for
the appellant. At para 22, the Supreme Court held thus: (SCC
p.415, para 22)
"22. Whether the abscondence of an accused can be taken
as a circumstance against him has been considered by this
Court in Bipin Kumar Mondal v. State of W.B. [(2010) 12
SCC 91] wherein the Court observed: (SCC pp. 98-99,
paras 27-28)
"27. In Matru v. State of U.P. [(1971) 2 SCC 75] this
Court repelled the submissions made by the State that
as after commission of the offence the accused had
been absconding, therefore, the inference can be drawn
that he was a guilty person observing as under: (SCC p.
84, para 19)
„19. The appellant's conduct in absconding was also
relied upon. Now, mere absconding by itself does not
Page 27 of 32
necessarily lead to a firm conclusion of guilty mind.
Even an innocent man may feel panicky and try to
evade arrest when wrongly suspected of a grave crime
such is the instinct of self-preservation. The act of
absconding is no doubt relevant piece of evidence to be
considered along with other evidence but its value
would always depend on the circumstances of each
case. Normally the courts are disinclined to attach
much importance to the act of absconding, treating it
as a very small item in the evidence for sustaining
conviction. It can scarcely be held as a determining link
in completing the chain of circumstantial evidence
which must admit of no other reasonable hypothesis
than that of the guilt of the accused. In the present
case the appellant was with Ram Chandra till the FIR
was lodged. If thereafter he felt that he was being
wrongly suspected and he tried to keep out of the way
we do not think this circumstance can be considered to
be necessarily evidence of a guilty mind attempting to
evade justice. It is not inconsistent with his innocence.‟
***
28. Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjee that mere absconding by the appellant after commission of the crime and remaining untraceable for such a long time itself can establish his Page 28 of 32 guilt. Absconding by itself is not conclusive either of guilt or of guilty conscience."
While deciding the said case, a large number of earlier judgments were also taken into consideration by the Court, including Matru [(1971) 2 SCC 75] and State of M.P. v. Paltan Mallah [(2005) 3 SCC 169]."
Having held so, the Supreme Court in Sujit Biswas(supra) further observed thus: (SCC p.416, para 23) "23. Thus, in a case of this nature, the mere abscondence of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Abscondence is in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor item in evidence for sustaining conviction. (See Paramjeet Singh v. State of Uttarakhand [(2010) 10 SCC 439 : AIR 2011 SC 200] and Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754 : AIR 2011 SC 2283]"
Further, the abscontion of an accused cannot form the sole basis of conviction to an accused.
21. In the instant case what has transpired that the investigating officer has recorded the statement of PW14 after Page 29 of 32 five days of the incident. The prosecution has failed to provide any satisfactory explanation as to why her statement was recorded after five days of the incident, when according to her she had seen the accused entering into the house of the deceased. She could divulge the said fact immediately after the incident when the investigating officer had visited the place of offence at the house of the informant(PW1).
21.1. From the deposition of PW14, it is revealed that she came to the house of her brother-informant(PW1) and saw the dead body of the victim. We have noticed her further statement that she told all of her relatives present there that the crime was committed by none else than the appellant. According to us, this statement made by PW14 should not be believed for the reason that if she would have made such statement at that instance, then, there was no reason to lodge the FIR against the unknown assailants. It could be revealed in the complaint itself. In view of this, this statement of PW14 lacks credence. The delay of recording her statement, in our opinion had opened enough space to concoct and fabricate the story. More so, if PW14 would have made this statement, then, PWs 1, 2 Page 30 of 32 and 4 must have divulged this fact to the investigating officer while their statements were recorded under Section 161 of CrPC.
21.2. More importantly, the striking feature of the instant case is that from the postmortem and medical examination of the victim-girl, it is abundantly substantiated that before murder, the victim was forcibly raped. There are so many injuries found on the person of the victim. Her hymen along with labia majora and minora were found to be ruptured and there were multiple tears found on the vaginal mucosa and other parts in and around the vagina. It is revealed that substantial bleeding was seen on the vagina. There are biting marks found in her breasts.
22. As we said earlier that the investigating officer had seized all wearing apparels of the victim just after the commission of offence. He also seized the bloodstained bed- sheet and blanket, and also arranged for collection of sample of vaginal swab and saliva of the victim for forensic test. The sample of semen/spermatozoa also was collected by the investigating officer. But, during scientific examination, the Page 31 of 32 doctor did not find the semen/spermatozoa of the appellant mixed with the vaginal swab of the victim. Further, the blood sample taken out from the appellant did not match the bloodstains found in the wearing apparels of the victim as well as the bed-sheet and blanket which were seized from the cot where the body of the victim was lying.
23. In our independent analysis of the evidence on record, according to us, the circumstances as projected by the prosecution to establish the charges against the appellant, if taken cumulatively, are found to be deficient to draw an inference towards the guilt of the accused beyond reasonable doubt, and in other words, the circumstances are found to be inconsistent to draw the exclusive hypothesis of guilt of the accused-appellant.
24. Accordingly, the judgment of conviction and sentence as afore-stated, passed by the learned Sessions Judge cannot sustain and the same are hereby set aside. Page 32 of 32
25. In the result, the instant appeal stands allowed and the appellant is acquitted from the charges levelled against him and he be set at liberty forthwith.
Issue release order accordingly.
Send down the LCRs.
(ARINDAM LODH, J) (AKIL KURESHI, CJ)