Tripura High Court
Sri Shibu Deb vs The State Of Tripura on 2 August, 2019
Equivalent citations: AIRONLINE 2019 TRI 145
Bench: S. Talapatra, Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J)66 of 2015
1. Sri Shibu Deb,
son of Sri Sadhan Deb
2. Smt. Gita Deb,
wife of Sri Shibu Deb
-both of village: Madhya Dukli,
P.S. West Agartala,
District: West Tripura
3. Smt. Papiya Deb (Datta),
wife of Sri Bipul Datta
4. Sri Bipul Datta,
son of late Binoy Datta
-both of village: Nabinpalli (Shiltila),
P.S. East Agartala,
District: West Tripura
----Appellant(s)
Versus
The State of Tripura
---- Respondent(s)
For Appellant(s) : Mr. Ratan Datta, Adv.
For Respondent(s) : Mr. B. Choudhury, P.P.
Date of hearing : 31.05.2019
Date of delivery of
Judgment & Order : 02.08.2019
Whether fit for
reporting : YES
BEFORE
HON‟BLE MR. JUSTICE S. TALAPATRA
HON‟BLE Mr. JUSTICE ARINDAM LODH
Judgment & Order
[S. Talapatra, J.]
The appellants were charged under Sections 120B and 302 read with Section 34 of the IPC separately for Page 2 of 50 committing murder of Lila Datta by hatching up conspiracy to do the said illegal act of murder. After a regular trial the appellants were convicted. The appellant No.1 (Shibu Deb), the appellant No.2 (Gita Deb) and the appellant No.3 (Priya Deb) were convicted under Section 302 read with Section 34 of the IPC. Again those appellants along with the appellant No.4 (Bipul Datta) was convicted separately under Section 120B read with Section 302 of the IPC. As consequence of the said conviction the appellants were sentenced to suffer rigorous imprisonment for life and fine of Rs.5,000/- with default stipulation. The appellants No.1, 2 & 3 were further sentenced to suffer rigorous imprisonment for life and to pay a file of Rs.10,000/- with default stipulation. But it was ordered that the sentences shall run concurrently and the period of detention the appellants had suffered during the investigation of the trial shall be set off from the substantive sentence of imprisonment under Section 428 of the Cr.P.C. The said judgment and order of conviction and sentence dated 25.03.2015 delivered in S.T.(Type-1) 36 of 2014 by the Addl. Sessions Judge, West Tripura, Agartala, Court No.5 (the fast track court) are challenged in this appeal.
02. The prosecution against the appellants was launched based on the complaint [Exbt.1] filed by one Subhas Das [PW-1] disclosing that on 12.02.2014 at about 6 p.m. the appellant No.1, father-in-law of the appellant No.4, the appellant No.2, wife of the appellant No.1 and mother-in-law Page 3 of 50 of the appellant No.4, the appellant No.3, wife of the appellant No.4 and daughter of the appellants No.1 & 2 had poured kerosene on the informant's sister and set her ablaze in order to commit murder to achieve their nefarious object. On 12.02.2014, according to the informant, all the appellants come to the house of his sister and initially started torturing her mentally and physically and thereafter, committed the murder in terms of the premeditated design.
03. On the basis of the said complaint dated 12.02.2014, East Agartala P.S. Case No.22 of 2014 under Sections 302/120(B)/341 of the IPC was registered and taken up for investigation by the police. On completion of the investigation, the final report was filed sending up the appellants for facing up the trial for committing offence punishable under Sections 120B and 302 read with Section 34 of the IPC. Since those offences are exclusively triable by the court of sessions the police papers were committed to that court. The Sessions Judge, West Tripura, Agartala had in the course of the time transferred the said case to the court of the Addl. Sessions Judge, Court No.5 (the fast track court) for trial in accordance with law. The said Addl. Sessions Judge or the trial court having taken the cognizance of the offence and on appreciation of the materials available in the final report framed the charge against the appellants as stated above. The appellants denied the charge and pleaded innocence. Thus the trial commenced.
Page 4 of 50
04. In order to substantiate the charge, the prosecution adduced as many as 25(twenty five) witnesses and introduced 14(fourteen) documentary evidence including the post-mortem examination report [Exbt.7] and the SFSL report [Exbt.6]. After recording the evidence as led by the prosecution each of the appellants were separately examined under Section 313 of the Cr.P.C. for having their response in respect of the incriminating materials those surfaced in the evidence. All the appellants except the appellant No.4 reiterated their plea of innocence but the appellant No.4 had categorically stated that it was his father-in-law [the appellant No.1], the mother-in-law [the appellant No.2] and his wife [the appellant No.3] poured kerosene oil on the person of his mother and set her on fire on 12.02.2014. At about 6.40/6.45 p.m. his father-in-law called him over his phone and informed him that his mother had badly confronted them. As such, he gave a fist blow on her person and as impact of that blow, his mother lost sense. The appellant No.1 had further informed him that he thought that his mother had died. So his wife and of his daughter Priya, the wife of the appellant No.4 took the body of his mother under a Haritaki tree. Thereafter his wife (the appellant No.2) poured kerosene oil from her jerrican and set fire on her. According to the appellant No.4, his father-in-law requested him to save them. Then he had rushed to his house. On Page 5 of 50 appreciation of the evidence the trial court had returned the conviction as stated above.
05. Mr. R. Datta, learned counsel appearing for the appellants has submitted that the evidence as brought in the record by the prosecution are bereft of coherence, mutually destructive and the statement of the few witnesses in respect of the pre-event and the post-event are extremely exaggerated and fabricated. The relation between the deceased and the appellants had been used as the apparent fact for fabrication of the stories. The evidence as such cannot be treated as adequate to return the finding of conviction but that has been done by the trial court.
06. Mr. R. Datta, learned counsel appearing for the appellants at the outset has submitted that presence of the appellants No.1 & 2 at the place of occurrence, at the time of occurrence cannot be believed by this court, if the statement of PW-15 is believed. Admittedly the distance between the place of occurrence and where the appellants No.1 and 2 were located as 'fleeing' would be proximately 1.5 k.m. The time gap for covering the distance would be more if the appellants No.1 & 2 were likely to be found on that place where PW-15 had seen them. Similarly, there is no evidence, in respect of the criminal conspiracy between the appellants No.1, 2 and 3 and the appellant No.4. But the trial court for this purpose utilized the evidence of PW-14, Dilip Bhowmik. From reading Page 6 of 50 of the statement of PW-14 it appears that he was the owner of the chemist shop under name and style of 'New Pioneer Medical Store' at Old Motor Stand, Agartala and the appellant No.4 had been working there. The appellant No.4 used to report for his duty in that store at 11 am and would return home at 9.30/10 pm. On the fateful day of 12.02.2014, the appellant came at the medical store at belated hours and he appeared 'restless and unmindful' in his work. He was found to be busy with attending the calls on his cell phone again and again. At about 6/7 p.m., the appellant No.4 told PW-14 that his mother sustained burn injuries. Saying this he went away. According to Mr. Datta, learned counsel, solely based on this testimony, someone cannot be brought in the web of crime when despite the seizure of Call Details Records (CDR) that was not introduced in the evidence. As this CDR has been withheld, adverse inference had to be drawn against the prosecution that the CDR did not inculpate the appellant No.4 or the other appellants.
07. Mr. Datta, learned counsel has further stated that none of the witnesses from the neighbourhood has stated that any of them had seen the appellants or any of them had poured kerosene oil on the person of Lila Datta, the sister of the informant or set her ablaze. All the witnesses on the basis of the pre-event activity of the appellants had inferred that the victim was murdered in concert following the criminal conspiracy for grabbing her property. Therefore, these Page 7 of 50 evidences are not to be acted upon by this court. That apart, the evidence of PW-15, Bholanath Das, PW-16, Nikhil Shil and PW-17 Joydeb Saha cannot be believed inasmuch as their testimonies are on the same line. Their version is common in the court. All these witnesses have stated in the trial that they found the appellants No.1 & 2 coming hurriedly towards him but when he asked the reason for that they instead of giving response ran away from there. PW-16 in particular had stated that those appellants were identified by street lights. PW-16 and 17 met the appellant No.4 according to their version in a place nearby the sweet-meat shop at the rail-line bazaar.
08. Mr. Datta, learned counsel has categorically stated that prosecution cannot shift its burden over the accused persons obliging them to disprove the charge framed against them. The prosecution are under the solitary obligation to prove the charge to the hilt on the basis of their evidence. PWs-2, 9, 10, 11, 12 & 13, according to Mr. Datta, learned counsel are also relied by the trial court for returning the finding of conviction against the appellants. PW-2, Soma Debnath had stated that the victim used to be treated with cruelty by her daughter-in-law, the appellant No.3. She did not provide food to the victim properly. On the date of occurrence i.e. 12.02.2014 she found the victim [Lila Datta] in front of her gate. At that time, she was in the company of four other female persons. She found Lila weeping. On their asking she went to her dwelling hut. At that point of time, the Page 8 of 50 appellant No.1 was heard to say that they would arrive at a settlement over the issue on the day itself. After 10 minutes of their meeting with the victim she found the local people running towards the house of the victim. She came to know that the victim was burning. At once she went there and found Lila Datta (the victim) in burnt condition. Some people from the locality were trying to put out the fire. She had identified the appellants during the trial.
09. PW-9, Kartik Majumder has stated in the trial as follows:
"On 12.02.14, at about 5.15 p.m., I was about to go to my Shop. Hearing hue and cry, I came in front of the house of Bipul Datta and found Shibu Deb and his wife at dispute with Lila Datta. Then I asked Lila Datta to go to her Dwelling-hut. At this, Shibu Deb asked me not to interfere with their family matters. I, therefore, left the place. Some other persons including some female persons were also present there at the material time."
10. PW-10, Gopal Saha testified in the trial and stated in the same line as of PW-9. PW-11, Rajesh Shil has stated in the trial as follows:
"On 12.02.2014, at about 6/6.10 pm, I heard the cry „Agun, Agun‟ (i.e., fire, fire). I again rushed to the place of cry and found something burning in the northern bank of their Pond. At that very moment, I found Shibu Deb and Gita Deb running away from the household premises of Lila Datta. I took a water-soaked gunny bag and laid it on the burning body of Lila Datta. She might have died then. Some other persons also tried to pour water on the burning body of Lila Datta. At that very moment, Priya Datta ran into her Dwelling-hut and closed the door of the hut."
He has also categorically affirmed that he heard Shibu Deb [the appellant No.2] saying that 'They would arrive at a final settlement on the issue today.' Page 9 of 50
11. PW-12, Smriti Roy (Bhowmik) is also a witness from the neighbourhood and she has stated that on 12.02.2014 at about 4.30/5 pm Lila Datta told her that her son Bipul and her daughter-in-law Priya kept her in starvation and they would keep her confined in the room under lock and key. On their asking, Lila went home. At about 5.45 p.m., they again heard that Shibu Deb, Gita Deb and Priya Datta were quarrelling with Lila Datta with regard to her landed property. They also heard Lila Datta saying that she was agreeable to their proposal. At that time, she heard Shibu Deb [the appellant No.1] saying that they would arrive at a final settlement on that day itself.
12. Mr. Datta, learned counsel has submitted that based on all the testimonies as referred hereinbefore, the conviction has been returned. Thereafter, Mr. Datta, learned counsel has seriously raised certain questions to show that the impugned judgment is not tenable in law. According to him, even if the presence of the appellants No.1, 2 & 3 is held to be proved by the prosecution, that by itself will not establish that they were the persons who were present at the time of death of the victim. At this juncture, Mr. Datta, learned counsel has brought to the attention of this court to the explanation provided by the appellant No.2, Gita Deb.
Page 10 of 50
13. In reply to the question No.84 during examination under Section 313 of the Cr.P.C. the appellant No.2 has stated as follows:
"I am innocent. I have been falsely implicated in the case. On the date of incident, I got a telephonic information to come to the house of Bipul immediately. Accordingly, I along with my wife came to Bipul‟s house and found Lila Datta dead. At that point of time, police arrested me and my wife. I came to know that Lila Datta committed suicide by setting fire on her person by way of pouring kerosene oil."
14. Mr. Datta, learned counsel has submitted that the explanation is comprehensive and there is no reason to disbelieve the said explanation given by the appellant No.2. Further, Mr. Datta, learned counsel has stated that the trial court did not consider the said explanation at all, which according to Mr. Datta, learned counsel clearly fulfills the requirement of Section 106 of the Indian Evidence Act. The appellant No.1 also given the similar explanation as has been given by the appellant No.2. Therefore, the case of the appellants No.1 & 2 was not appreciated differently as at the time of occurrence, they were not at the place of occurrence and on having a telephone call, they came to the place of occurrence and the police arrested them on suspicion. So far the appellant No.3 is concerned she has denied the allegations against her and explained how the victim had committed suicide. For purpose of reference, her statement in response to question No.84 as was posed to her may gainfully be reproduced:
Page 11 of 50
"The mental health of my mother-in-law was not good. She had a suicidal tendency. When my husband was at his 6 (six) years of his age, my mother-in-law tried to commit suicide by drowning. 2/3 days before the Manasa Puja that took place in the year 2013, she also tried to commit suicide laying her body on the Railway track. In fact, my mother-in-
law did commit suicide on 12.02.2014 by setting fire on her person. We have been falsely implicated in the case."
15. Mr. Datta, learned counsel has therefore contended that the death of the victim is suicidal in nature and the appellants have been framed without any foundation. In support of his contention Mr. Datta, learned counsel has relied on a series of decision. In Kalu vs. State of M.P. reported in 2005 CriLJ 4777, the high court of Madhya Pradesh had occasion to observe that unless there is legal evidence in respect that the accused persons have committed offence, based on conjuncture and surmise or inadmissible evidence the finding of conviction cannot be returned. Even the statement under Section 313 of the Cr.P.C. cannot be used against the accused.
16. In Musheer Khan @ Badshah Khan and Another vs. State of Madhya Pradesh reported in (2010) 2 SCC 748, the apex court had observed that in a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is 'inferential evidence' and proof in such a case is derivable by inference from circumstances. Chief Justice Fletcher Moulton is referred Page 12 of 50 therein for his observation that 'proof does not mean rigid mathematical formula' since 'that is impossible'. However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, is 'like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches' as compared by Lord Coleridge. It was also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence. The first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If the conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such, as not to admit of any inference except that of guilt of the accused [Raghav Prapanna Tripathi vs. State of U.P.: AIR 1963 SC 74]. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused [State of U.P. vs. Dr. Ravindra Prakash Mittal:
(1992) 3 SCC 300]. It has been further observed that while appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali vs. King Emperor: 21 CWN Page 13 of 50 1152 that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis except his guilt. It has been observed thereafter in Musheer Khan (supra) as follows:
"45. When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role. In Nibaran Chandra Roy vs. King Emperor: 11 CWN 1085 it was held the fact that an accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It seems, therefore, to follow that whatever force a presumption arising under Section 106 of the Indian Evidence Act may have in civil or in less serous criminal cases, in a trial for murder it is extremely weak in comparison with the dominant presumption of innocence.
46. The same principles have been followed by the Constitution Bench of this Court in Govinda Reddy vs. State of Mysore: AIR 1960 SC 29 where the learned Judges quoted the principles laid down in Hanumant Govind Nargundkar vs. State of Madhya Pradesh:AIR 1952 SC 343. The ratio in Govind (supra) quoted in paragraph AIR para 5, page 30 of the Report in Govinda Reddy (supra) are:
.....in cases where the evidence of a circumstantial nature, the circumstances which lead to the conclusion of guilt should be in the first instance fully established, and all the facts so established should be consistent only with 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 complete as not to leave any reasonable doubt for a conclusion consistent with the innocence of the accused and it must be shown that within all human probability the act must have been [committed] by the accused.
The same principle has also been followed by this Court in Mohan Lal Pangasa vs. State of U.P.: (1974) 4 SCC 607."
[Emphasis added] Page 14 of 50
17. In Bipin Kumar Mondal vs. State of West Bengal reported in (2010) 12 SCC 91 as relied by Mr. Datta, learned counsel appearing for the appellants, the apex court had occasion to observe that in a case relating to the circumstantial evidence, the motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving one factor an importance which is not due. The motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy [Ujjagar Singh vs. State of Punjab: (2007) 13 SCC 90]. Dealing with the similar issue as referred in Bipin Kumar Mondal (supra), in State of U.P. vs. Kishanpal reported in (2008) 16 SCC 73, the apex court has held that motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. This decision is also been Page 15 of 50 pressed by Mr. Datta, learned counsel for repelling the finding that abscondance of the appellants No.1 & 2 from the place of occurrence is one of the circumstantial evidence as against them. In Bipin Kumar Mondal (supra) the apex court has observed as follows:
"27. In Matru @ Girish Chandra Vs. The 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:
19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not 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.
A similar view has been reiterated by this Court in Rahman Vs. State of U.P.: AIR 1972 SC 110 and State of M.P. Vs. Paltan Mallah & Ors.: (2005) 3 SCC 169."
[Emphasis added]
18. On the aspect of bringing the appellant No.4 in the web of the crime as one of the conspirators, the reference has been made to State of Madhya Pradesh vs. Ramesh and Another reported in (2011) 4 SCC 786 where the apex court has observed that Section 6 of the Evidence Act, 1872 has been explained in Sukhar vs. State of U.P. reported in Page 16 of 50 (1999) 9 SCC 507. It is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, are forming part of res gestae, and those are contemporaneous to the acts or made immediately thereafter. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' that it becomes relevant by itself. Applying the ratio of Sukhar (supra) it can be derived that such statement is admissible under Section 6 of the Evidence Act.
19. As a result, the episode of fleeing from the place of occurrence by the appellants No.1 and 2 or the restlessness of the appellant No.4 during his duty in the shop of PW-14 or his having conversation over the mobile phone are not to be discarded on their face. In Paramjeet Singh vs. State of Uttarakhand reported in 2011 CriLJ 663, the apex court has dealt with motive vis-a-vis the circumstantial evidence. Having referred Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 it has been recorded that if a criminal case rests on circumstantial evidence alone then the burden heavily lies on the prosecution to prove the circumstances for which the conclusion of the guilt has to be drawn and those circumstances shall fully be Page 17 of 50 established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency they should exclude every possible hypothesis except the one to be proved and 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 probabilities the act must have been done by the accused. This view has been followed in State of Uttar Pradesh vs. Satish: (2005) 3 SCC 114, Krishnan vs. State represented by Inspector of Police: (2008) 15 SCC 430, Ramesh Bhai and Anr. vs. State of Rajasthan: (2009) 12 SCC 603, Subramaniam vs. State of Tamil Nadu and Anr.: (2009) 14 SCC 415 and Babu vs. State of Kerala: JT 2010 (8) SC 560. That apart, it has been observed in Matru @ Girish Chandra vs. The State of U.P. reported in AIR 1971 SC 1050 that the abscondence does not 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 Page 18 of 50 absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link and completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.
20. In Shyamal Ghosh vs. State of West Bengal reported in (2012) 7 SCC 646 where it has been observed as follows:
"41. As we are discussing the conduct of the prosecution witnesses, it is important for the Court to notice the conduct of the accused also. The accused persons were absconding immediately after the date of the occurrence and could not be arrested despite various raids by the police authorities. The Investigating Officer had to go to different places, i.e., Sodhpur and Delhi to arrest the accused persons. It is true that merely being away from his residence having an apprehension of being apprehended by the police is not a very unnatural conduct of an accused, so as to be looked upon as absconding per se where the court would draw an adverse inference. Paramjeet Singh v. State of Uttarakhand: (2010) 10 SCC 439 is the judgment relied upon by the learned counsel appearing for the appellant. But we cannot overlook the fact that the present case is not a case where the accused were innocent and had a reasonable excuse for being away from their normal place of residence. In fact, they had left the village and were not available for days together. Absconding in such a manner and for such a long period is a relevant consideration. Even if we assume that absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused because it is not unknown that even innocent persons may run away for fear of being falsely involved in criminal cases, but in the present case, in view of the circumstances which we have discussed in this judgment and which have been established by the prosecution, it is clear that absconding of the accused not only goes with the hypothesis of guilt of the accused but also points a definite finger towards them. This Court in the case of Rabindra Kumar Pal @ Dara Singh v. Republic of India: (2011) 2 SCC 490, held as under:
88. The other circumstance urged by the prosecution was that A- 3 absconded soon after the incident and avoided arrest and this abscondence being a conduct under Section 8 of the Evidence Act, 1872 should be taken into consideration along with other evidence to prove his guilt. The fact remains that he was not available for quite some time till he was arrested which fact has not been disputed by the defence counsel. We are satisfied that before accepting the contents of the two letters and the evidence of PW 23, the trial Judge afforded him the required Page 19 of 50 opportunity and followed the procedure which was rightly accepted by the High Court.
42. Then it was also contended that circumstantial evidence is a very weak evidence and in the present case, the complete chain having not been established, the accused are entitled to acquittal. This argument again does not impress us. Firstly, we have discussed in some details that this is not purely a case of circumstantial evidence. There are eye-witnesses who had seen the scuffling between the deceased and the accused and the strangulation of the deceased by the accused persons and also the loading of the mutilated body parts of the deceased contained in gunny bags into Maruti Van. Evidence establishing the „last seen together‟ theory and the fact that after altercation and strangulation of the deceased which was witnessed by PW8, PW17 and PW19, the body of the deceased was recovered in pieces in presence of the witnesses, have been fully established. To a very limited extent, it is a case of circumstantial evidence and the prosecution has proved the complete chain of events. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body is quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased.
Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard.
43. Even in the cases of circumstantial evidence, the Court has to take caution that it does not rely upon conjectures or suspicion and the same should not be permitted to take the place of legal proof. 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 guilt of the accused. 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. [Ref. Mousam Singha Roy and Others v. State of W.B.:
(2003) 12 SCC 377]."
[Emphasis added]
21. In Shyamal Ghosh (supra) the apex court having referred Nand Kishore vs. State of Madhya Pradesh:
(2011) 12 SCC 120 has dwelled upon on the ambit and scope of Section 34 of the IPC as well as its applicability in the cases. A bare reading of that section shows that the section could be dissected as follows:Page 20 of 50
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused. The third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 of the IPC must be done by several persons. The emphasis in this part of the section is on the word 'done'. It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
22. In Shyamal Ghosh (supra) the apex court has further enunciated the law in the following words: Page 21 of 50
21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22. Section 34 also deals with constructive criminal liability.
It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab.)
23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case, like in the present case Mahavir, all alone and unarmed went to demand money from Mahesh but Mahesh, Dinesh and Nand Kishore got together outside their house and as is evident from the statements of the witnesses, they not only became aggressive but also committed a crime and went to the extent of stabbing him over and over again at most vital parts of the body puncturing both the heart and the lung as well as pelting stones at him even when he fell on the ground. But for their participation and a clear frame of mind to kill the deceased, Dinesh probably would not have been able to kill Mahavir. The role attributable to each one of them, thus, clearly demonstrates common intention and common participation to achieve the object of killing the deceased. In other words, the criminal act was done with the common intention to kill the deceased Mahavir. The trial court has rightly noticed in its judgment that all the accused persons coming together in the night time and giving such serious blows and injuries with active participation shows a common intention to murder the deceased. In these circumstances, the conclusions arrived at by the trial court and the High Court would not call for any interference.
24. The learned counsel appearing for the appellant had relied upon the judgment of this Court in Shivalingappa Kallayanappa v. State of Karnataka to contend that they could not be charged or convicted for an offence under Section 302 with the aid of Section 34 IPC. The said judgment has rightly been distinguished by the High Court in the judgment under appeal. In that case, the Supreme Court had considered the role of each individual and recorded a finding that there was no common object on the part of the accused to commit murder. In that case, the Court was primarily concerned with the common object falling within the ambit of Section 149 IPC. In fact, Section Page 22 of 50 34 IPC has not even been referred to in the aforereferred judgment of this Court.
25. Another case to which attention of this Court was invited is Jai Bhagwan v. State of Haryana. In that case also, the Court had discussed the scope of Section 34 IPC and held that common intention and participation of the accused in commission of the offence are the ingredients which should be satisfied before a person could be convicted with the aid of Section 34 IPC. The Court held as under: (SCC p. 107, para 10)
10. To apply Section 34IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."
[Emphasis added]
23. A decision of this court has also been referred by Mr. Datta, learned counsel in Kajal Datta @ Ujjal vs. State of Tripura reported in 2013 CriLJ 4939 showing that mere quarrel cannot be brought within the scope of instigation as provided under Section 107 of the IPC. It has been observed in Kajal Datta @ Ujjal (supra) that Section 107 of the IPC defined abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word 'instigate' literally means to provoke, incite, urge on or bring about by persuasion to do Page 23 of 50 anything. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section
107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. It has been further observed in terms of Mahinder Singh vs. State of M.P.: AIR 1995 SCW 4570 that in case of the alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide.
24. On the last seen together as the appellants No.1, 2 & 3 were last seen with the victim, the deceased, Mr. Datta, learned counsel has relied on a decision of the apex court in State of Gujrat vs. Kishanbhai and Others reported in (2014) 5 SCC 108 where it has been observed that the last seen together is fundamentally a circumstantial evidence and it requires due corroboration to have the finding of conviction returned.
25. By referring to Shahid Khan vs. State of Rajasthan reported in (2016) 4 SCC 96 Mr. Datta, learned counsel has contended that the delay in recording the statements casts a serious doubt on being eye-witnesses of the relevant part of the occurrence. It has been observed that unexplained silence and delayed statement to the police, in Page 24 of 50 some circumstances make the statements wholly unreliable. There is no corroboration of their evidence from any other independent source, it is therefore unsafe to rely upon their evidence to uphold the conviction and sentence of the appellants. Basic principle of criminal jurisprudence is that accused is to be presumed innocent until his guilt is proved beyond reasonable doubt. In this regard, the reference has been made to Krishnegowda and Others vs. State of Karnataka reported in (2017) 13 SCC 98. It has been further observed that the duty of the court is to consider the trustworthiness of the evidence on record, as said by Banthem that 'witnesses are the eyes and ears of justice'.
26. Finally whether the statement of the appellant No.4 during the examination under Section 313 of the Cr.P.C. can be utilized for returning the conviction? The apex court, this respect, in Surinder Kumar Khanna vs. Intelligence Officer, Directorate of Revenue Intelligence reported in (2018) 8 SCC 271 has observed as under:
"10. In Kashmira Singh v. State of Madhya Pradesh7, this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. The King8 and laid down as under:
8. Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-
accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu vs. R.: 1949 SCC Online PC 12 .....It does not indeed come within the definition of „evidence‟ contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.
Page 25 of 50Their Lordships also point out that it is obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities.
They stated in addition that such a confession cannot be made till foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ?
9. In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty: ILR (1911) 38 Cal 559 where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused "or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan, In re: 1930 SCC Online Mad ...the provision goes no further than this--where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession de- scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence."
10. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
11. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar: (1964) 6 SCR 623 wherein it was observed:
12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge Page 26 of 50 framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this:
....where there is evidence against the co- accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence".
In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that:
.....a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence".
It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30.
The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval."
Page 27 of 50
12. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused.
13. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court.
14. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence."
[Emphasis added]
27. Finally, in Reena Hazarika vs. State of Assam reported in AIR 2018 SC 5361 it has been observed that in case of circumstantial evidence the prosecution is required to establish continuity by the links of chain of circumstances, so as to lead to only an inescapable conclusion of the accused being the assailant, inconsistent or incompatible with possibility of any other hypothesis and it is in-compatible with innocence of the accused. Mere invocation of last seen theory, sans the facts and evidence in a case, would not suffice to shift onus upon the accused under Section 106 of the Evidence Act unless the prosecution has established a prima facie case. For purpose of reference, the relevant passages therefrom are extracted:
"It is well established principle of criminal jurisprudence that several Accused may go free, but an innocent person should not be punished. In Anant Chintaman Lagu vs. State Page 28 of 50 of Bombay: (1960) 2 SCR 460 this Court observed as follows:
16. Ordinarily, it is not the practice of this Court to re-
examine the findings of fact reached by the High Court particularly in a case where there is concurrence of opinion between the two Courts below. But the case against the appellant is entirely based on circumstantial evidence, and there is no direct evidence that he administered a poison, and no poison has, in fact been detected by the doctor, who performed the postmortem examination, or by the Chemical Analyser. The inference of guilt having been drawn on an examination of a mass of evidence during which subsidiary findings were given by the two Courts below, we have felt it necessary, in view of the extraordinary nature of this case, to satisfy ourselves whether each conclusion on the separate' aspects of the case, is supported by evidence and is just and proper. Ordinarily, this Court is not required to enter into an elaborate examination of the evidence, but we have departed from this rule in this particular case, in view of the variety of arguments that were addressed to us and the evidence of conduct which the appellant has sought to explain away on hypotheses suggesting innocence. These arguments, as we have stated in brief, covered both the factual as well as the medical aspects of the case, and have necessitated a close examination of the evidence once again, so that we may be in a position to say what are the facts found, on which our decision is rested.
8. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the Accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the Accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the Accused Under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the Accused, and the benefit of doubt will have to be given."
[Emphasis added]
28. Mr. B. Choudhury, learned P.P. appearing for the state has submitted that from the evidence of PW-1, Subhas Das, the brother of the deceased the narrative of existing enmity between the appellant No.4 and the deceased over the Page 29 of 50 property held by her is distinctively available. She was subject to cruelty, both mental and physical, in order to coerce his for transferring the said property which fell in the share of her sister (the deceased) from their ancestral property. On 18.01.2014 his sister, Lila came to his house and told that the appellant No.4 had threatened her on the previous night that he would commit suicide unless that property was transferred in his name. PW-1 tried to convince the appellant No.4 that he would inherit the said property on her death. But he was not happy. Similar threat was also given on 04.02.2014. At that time, he was not at his residence. On his return the deceased informed him the incident. On 12.02.2014 at about 6/6.30 p.m. he heard hue and cry and he came out of his room and noticed 'something' was burning under a tree. A number of people of the locality assembled there. They told him that Shibu Deb, Gita Deb and Priya Datta, the appellants No.1, 2 and 3 respectively, had a quarrel with his sister at about 5/5.30 p.m. and at that time the local people intervened but the appellant No.1 (Shibu Deb) asked them not to interfere with their family matter. When the people of the locality were about to leave the place, they heard Shibu Deb to say that 'they would arrive at a final settlement of that issue on that day itself'. At about 7 p.m., Bipul came over there. He was witness to the inquest procedure and he had filed the ejahar [Exbt.1] to the police station. PW-1 admitted the inquest report [Exbt.2]. In the cross-examination the defence has Page 30 of 50 failed to elicit any material which would demolish the prosecution case.
29. Mr. Choudhury, learned P.P. thereafter has urged this court to go through the evidence of PW-2, Soma Debnath who had corroborated the statement of PW-1 in every respect. But PW-2 is also the witness of the part of the transaction which occurred at about 5/5.30 p.m. on 12.02.2014. She has confirmed that the appellants No.1, 2 & 3 had a quarrel with the deceased (Lila Datta). Being attracted by the said quarrel they went in front of the gate and found the deceased (Lila Datta) weeping. On their request, she went back to her dwelling hut. At that time, the appellant No.1 was heard saying that 'they would arrive at a final settlement over that issue'. He had asked other people to leave that place. Within ten minutes the local people rushed to the place and found Lila Datta was burning. She has given the material description of the place where the burnt body of Lila Datta was located.
30. PW-3, Biplab Kanti Bhowmik scribed the ejahar [Exbt.1]. He had appeared in the place of occurrence later. Mr. Choudhury, learned P.P. has drawn attention of the testimony of PW-4, Chandan Shil who has stated as follows:
"On 12.02.2014, at about 8/8.30 pm, Darogababu seized 1) some burnt pieces of a „Sari‟ made of cotton, 2) some ashes,
3) a piece of burnt drum made of plastic and 4) some burnt soil, by way of preparing Seizure memo in my presence and in presence of one Shyamal Shil. I put my signature in the said Seizure memo. On identification, the signature of the witness is marked Ext. 3/1. On identification, the seized „Alamats‟ are respectively marked Ext. MO.I, MO.II, MO.III & MO.IV."Page 31 of 50
In the cross-examination nothing is elicited from PW-4.
31. PW-5, Shyamal Shil has corroborated the seizure of which was caused by the seizure memo dated 12.02.2014 [Exbt.3]. PW-6, Bhulan Dey is another seizure witness. In his presence the seizure of one black and silver colour mobile phone with dual SIM and a white colour mobile phone with dual SIM, was seized by preparing the seizure list [Exbt.4]. Those were admitted as MO.V and MO.VI respectively. He has identified the accused Bipul and Shibu. He has not stated anything for that matter.
32. PW-7, Sajal Das has made a very important observation as the witness by stating that on 12.02.2014 at about 7/7.30 p.m. the investigating officer entered in the dwelling hut of appellant No.4 (Bipul Datta) and found all his household goods in scattered condition. PW-7 is also the seizure witness of Exbt. MO.V & MO.VI. He has denied the suggestion that the police personnel scattered all the household goods of the dwelling hut.
33. PW-8, Pallab Kanti Bhowmik has in the trial stated that on 04.02.2014 at about 1.30 am he had heard hue and cry from the house of the appellant No.4 (Bipul). He along with his wife Smriti Roy Bhowmik and some other persons of the locality went there and heard Bipul was talking to his mother (the deceased) at the top of his voice. On his asking Page 32 of 50 Bipul responded from inside and stated that he wanted the household properties of his mother be transferred in his name. He has asked him not to interfere in his family matters. They heard Lila Datta (the deceased) saying that she would not transfer her household properties in the name of his son during her lifetime. On 12.02.2014, he came home at about 6 pm and came to know that Lila Datta (the deceased) had been killed by burning. He went to the house of Bipul where he met Bipul in front of the gate and he told him in a normal mood 'finished, finished'. Despite the rigorous cross-examination, PW-8 did not resile from the statement made in the examination-in-chief. There was an attempt to record contradiction in respect of the episode of 04.02.2014 as narrated by PW-8 and the attempt was absolutely unsuccessful. He has stated in the cross-examination that from the local people he came to know that Lila Datta was killed by burning. But he denied that Lila Datta committed suicide on 12.02.2014 by burning herself.
34. PW-9, Kartik Majumder is another witness, testimony of whom has been referred by Mr. Choudhury, learned P.P. as that witness has categorically stated as follows:
"On 12.02.14, at about 5.15 pm, I was about to go to my Shop. Hearing hue and cry, I came in front of the house of Bipul Datta and found Shibu Deb and his wife at dispute with Lila Datta. Then I asked Lila Datta to go to her Dwelling-hut. At this, Shibu Deb asked me not to interfere with their family matters. I, therefore, left the place. Some other persons including some female persons were also present there at the material time."Page 33 of 50
The appellant No.1 according to him is a resident of Madhya Dukli, a place 2 k.m. away from the house of the appellant No.4 where the occurrence took place. On 12.02.2014 at about 6 pm on hearing hue and cry he went to the house of Bipul Datta, the appellant No.4 and found flames of fire under a 'Haritaki' (Myrobalan) tree. The body of Lila Datta was lying there in a burnt condition under the said tree. He at once got a gunny bag soaked with water from the nearby pond and laid it over the person of Lila Datta in order to put out the fire. Some other persons from the locality came forward to put out the fire by throwing water-soaked gunny bag on the burning body. Lila Datta had perhaps expired by then. When he came to the gate of Bipul Datta outside lights of the dwelling hut were put out. The inside electric lights were however illuminating but he did not find Shibu Deb (the appellant No.1) and his wife (the appellant No.2). However, he found Priya Datta (the appellant No.3) standing in the Verandah. He denied the suggestion in the cross-examination in respect of his statement.
35. PW-10, Gopal Saha corroborated the episode that occurred on 04.02.2014. He has also stated in the trial that on 12.02.2014 at about 5 p.m. while he was going to a shop nearby, he met Lila in front of her house. She told him that her son Bipul called his father-in-law and the mother-in-law in his dwelling and all of them conspired something. Thereafter, Page 34 of 50 Lila Datta went to her dwelling hut. At that time they heard Shibu Deb, the appellant No.1 rebuking Lila Datta for her denial to transfer the landed property. He heard Sibu Deb saying that 'they would arrive at a final settlement on the issue that day'. He tried to intervene but Shibu Deb asked him not to interfere with their family matters. He noticed that the outside electric lights of the said house were put out. After half an hour, he heard the cry 'fire, fire'. At that very moment he found the father-in-law of Bipul (the appellant No.1) running away from the house premises of Lila Datta. Then, he went to the place of occurrence and found the body of Lila Datta charred under a tree. He also applied water-soaked gunny bag on her body to put out the fire. He identified the appellants No.1 and 4 in the trial. In the cross-examination, he denied the suggestion in respect of the relation of the deceased and the appellant No.4. Even he denied that the statement what had been uttered by Shibu Deb, the appellant No.1 was not stated by him. He volunteered in the cross-examination that the lights of the outside house were illuminating at that point of time. He also stated that the street lights were as well illuminating.
36. PW-11, Rajesh Shil has stated in the trial that Lila Datta had not been in good terms with his son and daughter- in-law, the appellants No.4 & 3. He has stated to have corroborated the episode of 04.02.2014. PW-11 has rushed to the place of occurrence. He has also corroborated the Page 35 of 50 occurrence of 12.02.2014 at about 5.15 pm when he heard the appellants No.1, 2 & 3 were rebuking Lila Datta, the victim. When they intended to intervene, the appellant No.1 told them not to interfere and they left the place. But he heard Shibu Deb saying that 'they would arrive at a final settlement of the issue today.' On 12.02.2014, at about 6/6.10 pm, he heard the cry 'fire, fire'. He rushed to the place of cry and found something was burning in the northern bank of their pond. At that very moment, he found Shibu Deb and Gita Deb, respectively the appellant No.1 and 2, running away from the residence of Lila Datta. He took a water-soaked gunny bag and laid it on the burning body of Lila Datta. But at that time, perhaps, she was dead. Some other people tried to pour water on the burning body of Lila Datta. At that very moment, Priya ran into her dwelling hut and closed the door from inside. This conduct of Priya Datta, the appellant No.3 as stated was not even questioned but the suggestions put to PW-11, contrary to the statement made in the examination-in-chief, were all denied by him. He denied the suggestion that the appellants did not conspire to grab the property of Lila Datta. He has voluntarily stated that he identified the appellants No.1 & 2 by the street lights which were illuminating at that time.
37. PW-12, Smriti Roy (Bhowmik), wife of PW-8 has corroborated the episode of 04.02.2014 as told by PW-8. He has stated that on 12.02.2014 at about 4.30/5 pm Lila Datta told us that her son Bipul and her daughter-in-law Priya would Page 36 of 50 keep her in starvation and they would also keep her confined in the room under lock and key. On their asking, Lila went home at about 5.45 pm. They heard Shibu Deb, Gita Deb and Priya Datta quarrelling with Lila Datta in regard to her landed property. At that point of time Lila Datta heard to have agreed to their proposal. But Shibu Deb was heard of saying that 'they would arrive at a final settlement of the issue today'. At that time, the outside electric lights of the house were put out. They noticed flames in a place situated in the northern bank of their pond. Neighbouring people tried to put out fire applying water-soaked gunny bags on the person of Lila Datta. She noticed Shibu Deb and his wife Gita Deb running away from the house-premises of Lila Datta. Priya Datta, the appellant No.3 was at her dwelling hut at the material time. At about 7 pm Bipul, the appellant No.4 came home and said in a normal mood 'finished, finished'. She denied all the suggestion and stated in the cross-examination that she could identify the appellants No.1 and 2 with help of street lights. But that part of the statement was not available in her previous statement recorded under Section 161 of the Cr.P.C.
38. PW-13, Amita Majumder is the younger sister of Lila Datta, the victim. She has categorically stated that Bipul and Priya were not in good terms with Lila. Bipul and Priya used to create pressure on Lila for transferring her homestead land in the name of Bipul. Lila told them this fact on 12.02.2014 at about 5/5.30 pm. Thereafter, Lila went home. Page 37 of 50 Immediately thereafter they heard Shibu Deb, Gita Deb and Priya Datta rebuking Lila in respect of transfer of her landed property. They heard Shibu saying that they would arrive at a final settlement on that day. She went to a nearby shop and came to know that her elder sister Lila sustained burn injuries. At once, she went to her house and found Priya Datta standing at the door of her dwelling hut. She lost her sense. She identified the appellants No.1 & 2 in the trial as on the day of her examination, other two appellants were not present in the court. In the cross-examination nothing could be elicited by the defence.
39. PW-14, Dilip Bhowmik, has been extensively referred before as the employer of the appellant No.4 PW-14 has stated that throughout the duty hour, he noticed the appellant No.4 to be restless and talking over his mobile phone quite frequently. At about 6/7 pm he told that his mother had received burn injuries and he left his shop. He denied the suggestion that the appellant No.4 did report his medical store on 12.02.2014 at belated hours.
40. PW-15, 16 and 17 have been extensively referred before and as such, even though Mr. B. Choudhury, learned P.P. has referred their statements in the trial the relevant testimonies are not being reproduced again. All these witnesses had seen the appellants No.1 & 2 'running away' and they saw the appellants No.1 & 2 at a place nearby rail- Page 38 of 50 line bazaar. In the cross-examination the defence could not succeed to elicit any material towards exculpating the appellants.
41. PW-18, Karuna Sarkar had heard the hue and cry in the house of Bipul Datta, the appellant No.4 on 12.02.2014. He went out and found Lila Datta was lying with burn injuries. The local people tried to put out the fire with help of water- soaked gunny bags. He had informed the fact to Maharajganj out-post over his phone. Nothing could be elicited in the cross- examination to support the defence case.
42. PW-19, Smt. Moushumi Das was posted as Senior Manager of TSECL Ltd. on 25.02.2014 in the region covering the place of occurrence. On that day she made a report of consumption of power on 12.02.2014 from 5.30 pm to 6.30 pm in connection with East Agartala PS Case No.22/2014. She had categorically informed by the report that there had not been any power fault or shedding on 12.02.2014 from 5.30 pm to 6.30 pm at Pratapgarh Feeder covering the place of occurrence. She identified the report [Exbt.5]. In the cross- examination she denied that the report was not correct, but given the explanation that the '3' occurring in 6.30 has been corrected by her with her pen. But other suggestions contrary to that were denied.
43. PW-20, Suman Kumar Chakraborty was the Deputy Director in Tripura State Forensic Science Laboratory, SFSL on Page 39 of 50 28.02.2014. On that day, he received one sealed packet from the Sub-Divisional Police Officer, Sadar in connection with East Agartala PS Case No.22/2014. The sealed packet contained 9(nine) exhibits, 1(one) brown coloured envelop and 4 (four) white coloured envelops marked as A-I. The SFSL gave their respective marks. PW-20 has stated the description of marks vis-a-vis the samples. From the forensic examination, PW-20 has inferred that the death did not occur for consumption of organochloro, organophosphorous and carbamates group of pesticides, but the presence of residues of inflammable oil was there. He was not cross-examined.
44. PW-21, Ranjit Kr. Das is one of the doctors who carried out the post-mortem examination over the dead body of Lila Datta (the deceased) on 13.02.2014. He has stated that post-mortem examination was conducted by him with Dr. Antara Debbarma. The dead body was duly identified by the brother of the deceased. He has stated that burn injuries were found over 94% of the total body surface area. The peeling of skin was present over the various parts. Some portions of the upper part of the front trunk and face were found charred. The sculp-hair, eye brows, eye lashes, auxillary hair, pubic hair were burnt and singed. He has categorically stated that the cause of death is shock as a result of 94% burn of total body surface area. Based on the forensic report, the cause of death was determined, not for any other reason but for burning. He identified the post-mortem examination report [Exbt.7]. Page 40 of 50
45. PW-22, Mamtaj Hasina, Sub-Inspector of police at East Agartala police station, conducted the inquest over the dead body of Lila Datta, the deceased. The dead body was duly identified by one Lokajit Das, the brother of the deceased. He identified the report [Exbt.2].
46. PW-23, Rana Chatterjee was the Officer-in-Charge of Maharajganj bazaar outpost on that day. They received the information, contained in the GD Entries No.236 & 237 dated 12.02.2014 which were entered by Sanjoy Saha, ASI in the station diary. He identified those entries [Exbt.8].
47. PW-24, Partha Nath Bhowmik, one Sub-Inspector of Police having received the information from PW-23 had rushed to the place of occurrence with contingents of police as the information received from the locality was that there might be a serious law and order situation. Having received the complaint at about 1930 hours on 12.02.2014, he was entrusted with the investigation by the Officer-in-Charge, East Agartala police station. He has also directed PW-22 to conduct the inquest over the dead body of the deceased. He has narrated how he had conducted the investigation by preparing the site map, recording the evidence of the witnesses, causing the seizure of various materials [Exbt. MO.I - MO.VI]. He identified those seized materials. Even he had introduced in the evidence, Exbt.13 and Exbt. 14, the two sets of GD Entries. He had arrested Priya Datta, the appellant No.3 on Page 41 of 50 13.02.2014. He had also collected the Call Details Report (CDR) and Subscribers' Details Report (SDR) in respect of the seized SIM cards through SP (DIB). Thereafter he collected the post-mortem examination report and tallied the inquest report. He had also collected the report of the consumption of power from the Senior Manager [PW-19]. Thereafter since he was transferred, he handed over the case-docket to the Officer-in-Charge, East Agartala on 01.03.2014. In the cross- examination, he has stated that Gita Deb, the appellant No.2 was manhandled by her neighbouring people. She had to be admitted in the hospital for her treatment. But he denied that police personnel had assaulted Gita Deb.
48. Mr. Choudhury, learned P.P. has referred to the testimony of Samaresh Das, PW-25 who had conducted the latter part of the investigation. He collected the report from the SFSL and having found the prima facie case was established, he filed the police report.
49. Mr. Choudhury, learned P.P. appreciating the oral evidence in particular has stated that the chain of the circumstantial evidence is unbroken and from the circumstantial evidence, it has been clearly established that the appellants No.1, 2 & 3 had put fire on the body of the Lila Datta, the deceased with a motive to eliminate her in order to grab her property in concert and with shared intention, and in that design PW-4 had conspired equally. The statement of PW- Page 42 of 50 4 under Section 313 which was recorded by the trial court, cannot be treated as the evidence but might give the assurance to the court in respect of the act of the appellants No.1, 2 and 3. The evidence of PW-14 would assure this court that the appellant No.4 was the part of that conspiracy from the very beginning. PW-14 does not have any interest to entangle the appellant No.4 falsely. The explanation that has been given by the appellants No.1 & 2 while they were examined under Section 313 of the Cr.P.C., gave false statements that they were not present at the place of occurrence when Lila Datta was ablaze. There are hard and well-corroborated evidence by the independent witnesses to show that they much present in the place of occurrence and they fled from the place of occurrence leaving their daughter (the appellant No.3) as such, their explanation that having information over telephone they came to the place of occurrence and they got arrested cannot be believed by this court in the face of the overwhelming evidence as discussed. Similarly, Priya Datta's explanation is totally untrustworthy and without any support from the evidence as her case is that of total denial. She has given the explanation that the mental health of her mother-in-law was not sound, and she had suicidal tendency and when her husband was six years of age, she had tried to commit suicide by drowning. Again 2/3 days before the day of occurrence she had tried to commit suicide by laying her body on the railway track. On 12.02.2014, she Page 43 of 50 committed suicide by setting fire on her person. But no evidence has been led in regard of her mental illness and except the appellant No.3, no other person has stated about the suicidal tendency of the deceased. The appellant No.1, Shibu Deb had given a complete denial of the incriminating evidence while examined under Section 313 of the Cr.P.C. He had further stated falsely that on receiving a telephonic information, he had rushed to the place of occurrence with his wife and found Lila Datta dead. At that time police arrested him and his wife. Further he had stated that he came to know that Lila Datta committed suicide by setting fire on her person by pouring kerosene. Strangely, he did not disclose from whom he received the telephone call nor did he disclose who told him that Lila Datta committed suicide. But there is no legal evidence in favour of the defence.
50. Having appreciated the submission made by the learned counsel and scrutinized the records of evidence, this court is of the view that the circumstantial evidence in respect of setting Lila Datta ablaze against the appellants No.1, 2 and 3 have been well established by the prosecution inasmuch as the quarrel immediately before the occurrence were seen, heard and intervened by a good number of witnesses as referred before. Within 10 minutes therefrom the witnesses noticed the flames coming from a part of the house of Lila Datta (the deceased). The witnesses saw the lights, hanging outside the house, were put out and when the witnesses Page 44 of 50 entered nearby the place of occurrence, they saw the appellants No.1 & 2 were fleeing away from the place of occurrence. But they were noticed by many witnesses. Even Priya Datta, the appellant No.3, initially was standing at the verandah, but seeing the people rushing home she entered the hut and locked the room from inside when the local people were trying hard to put out the fire. Neither of the appellant took any initiative saving Lila. Even they did not make any statement in this regard while explaining their conduct. After coming home the appellant No.4 were found quite normal and stating that everything was finished. The impression as gathered by the witnesses is that he was quite contended for what had happened. To entangle, Bipul Datta, the appellant No.4 the charge of criminal conspiracy on the principal offence was framed.
51. In Chandra Prakash vs. State of Rajasthan reported in 2014 AIR (SCW) 3055 the apex court had occasion to hold that while dealing with the facet of criminal conspiracy, it has to be kept in mind that in case of a conspiracy, there cannot be any direct evidence. Express agreement between the parties cannot be proved. Circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Such a conspiracy is never hatched in open and, therefore, evaluation of proved circumstances play a vital role in establishing the criminal conspiracy. In Yogesh alias Page 45 of 50 Sachin Jagdish Joshi vs. State of Maharashtra reported in (2008) 10 SCC 394 the apex court had observed as follows:
"The basic ingredients of the offence of criminal conspiracy are:
(i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Yet, as observed by this Court in Shivnarayan Laxminarayan Joshi & Ors. Vs. State of Maharashtra: (1980) 2 SCC 465 a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators.
Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible."
52. The same principles are expounded in Pratapbhai Hamirbhai Solanki vs. State of Gujrat and Another reported in (2013) 1 SCC 613 and Yakub Abdul Razak Menon vs. The State of Maharashtra, through CBI Bombay reported in 2013(3) SCALE 565. What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. Mere knowledge or discussion or generation of a crime in the mind of the accused, is not sufficient to constitute an offence. The offence takes place with the meeting of minds even if nothing further is done. It is an offence independent of other offences and punishable separately. Thus, the prosecution is required to establish the offence by applying the same legal principles which are Page 46 of 50 otherwise applicable for the purpose of proving criminal misconduct on the part of an accused. Criminal conspiracy is generally hatched in secrecy thus direct evidence is difficult to obtain or to access. The offence can be proved by adducing circumstantial evidence or by necessary implication. Meeting of minds to form a criminal conspiracy has to be proved by adducing substantive evidence in cases where circumstantial evidence is incomplete or vague. The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them between the parties.
53. In Balkar Singh vs. State of Haryana reported in 2015 CRI.L.J. 901 the apex court has observed that while appreciating circumstantial evidence, the Court must adopt a very cautious approach and record a conviction only if all the links in the chain of circumstances are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. It also noted that great care has to be taken in evaluating the circumstances and if the evidence relied upon is reasonably capable of two inferences, the one in favour of the accused must be accepted and the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Similarly, as regards the conspiracy, it is necessary that the prosecution should prove the names of the place or places Page 47 of 50 where it was hatched, names of the persons hatching it and how that agreement was formed has to be placed on the evidence.
As far as the conspiracy is concerned, there is no direct evidence as to who were all the conspirators, where and when the conspiracy was hatched, but the specific purpose of such conspiracy relating to elimination of the deceased has surfaced in the evidence unambiguously. Even the traits of conspiracy has surfaced. In other words, the basic ingredients to support the theory of conspiracy have surfaced in the evidence in the form of material evidence or otherwise against the appellants No.1, 2 and 3 in this case.
54. PW-14 has stated that the appellant No.4 was found restless after reporting the duty and he was found talking over his cell phone on several times. The investigating officer even though had categorically stated that he had collected Call Details Report (CDR) but for the reason best known to the prosecution the Call Details Reports were not introduced in the evidence. If the Call Details Report of the SIM card used by the appellant No.4 were produced in the trial, his involvement with the appellants No.1, 2 & 3, if it was there, would have been proved. Merely on the suspicion from the restless behavior, the conspiracy cannot be held to have hatched up in concert. According to this court, the appellant No.4 is entitled to the benefit even though there is a strong Page 48 of 50 suspicion against him. The witnesses had heard the appellant No.1 saying that, that day itself the matter will be resolved. At that time the appellant No.4 was admittedly not in the house. Therefore, his participation in the conspiracy has not been established beyond reasonable doubt. Accordingly, the appellant No.4 is liable to be acquitted from the charge under Section 120B read with Section 302 of the IPC on benefit of doubt. Accordingly, the judgment of conviction and the order of sentence against him stands set aside. The appellant No.4 shall be set at liberty forthwith, if not wanted in any other case.
55. So far the appellants No.1, 2 & 3 are concerned, the chain of the circumstantial episodes is so closely knit and proved that excludes the hypothesis of innocence of those appellants. On the very day of occurrence on 12.02.2014 at about 4.30/5 p.m., Lila Datta (the deceased) told PW-12 and other witnesses that her son Bipul and daughter-in-law would keep her in starvation. She did not speak of any conspiracy to be in her knowledge, but she was suspicious. But at about 4.30 p.m. PW-12 and other witnesses heard that Shibu Deb, Gita Deb and Priya Datta were quarrelling with Lila even transfer of her landed property. At that time, Lila Datta was resisting such plan. Even at one point, she was agreeable to their proposal, but the appellant No.1 was heard saying that they would arrive at a final settlement over the issue that day itself. It was simultaneously noticed that the outside electricity Page 49 of 50 lights were put out. Within a moment, the flames of fire was located. The neighbouring people locating Lila burning tried to put out the fire on applying water-soaked gunny bags. At that time, the appellants No.1 and 2 were seen leaving away from their household and the appellant No.3 was at her hut. Both the appellants No.1 & 2 did not give any explanation how the occurrence took place except implanting a story of suicide through the appellant No.2. It has been also brought in the evidence that the room where Lila used to stay was found in the scattered condition when the police entered in that room in presence of the witnesses. Moreover, where the dead body was located, no burn on the grass was found. As such, the fire was put on somewhere else and in order to save the life Lila Datta came out and fell down under the Haritaki tree as stated by the witnesses. This circumstance does not point out act of committing suicide by Lila Datta. Moreover, the false explanation given by the appellants No.1, 2 & 3 is a dominating piece of circumstance which can be utilized against the appellants No.1, 2 & 3. Any person against whom circumstances surface to incriminate, may be exculpated by giving an explanation, but in that case, if the explanation is found false, it would be an additional episode in the chain of incriminating circumstances.
56. This court is satisfied that the conviction as returned against the appellants No.1, 2 & 3 has been returned appropriately and no interference is called for from this court. Page 50 of 50
Accordingly, the judgment of conviction against the appellants No.1, 2 and 3 stands affirmed. The appellants No.1, 2 & 3 therefore shall serve out the remaining term of the sentence.
In the result, the appeal filed by the appellants No.1, 2 & 3 is dismissed.
Send down the LCRs forthwith.
JUDGE JUDGE Moumita