Bikash Koiri VsState of Tripura

U.B. Saha, J.—The accused, appellant herein, faced trial in case No. ST 63 (NT/D)/2005 before the learned Addl. Sessions Judge, North Tripura, Dharmanagar for commission of offence punishable u/s 302 of the Indian Penal Code (for short, "IPC"). The learned Addl. Sessions Judge, North Tripura, Dharmanagar (for short, "trial Judge") after completion of the trial found the accused-appellant guilty for commission of offence u/s 302 , I.P.C. and consequent thereto convicted him under the said Section vide judgment dated 27-3-2006 in the aforesaid ST 63 (NT/D)/2005 and remanded him to custody till 29-3-2006 and by an order passed on 29-3-2006 he was sentenced to life imprisonment with a fine of Rs. 10,000/- in default to make payment of fine money, to suffer further RI for two years. In case the fine money is realized the same shall be paid to the widow/legal heirs of the deceased, Ramnarayan Gowala. We have heard Mr. R. Datta, learned counsel appearing for the appellant/accused and Mr. R.C. Debnath, learned Addl. PP. for the State.

Filtering the unnecessary details, the prosecution case is that on 30-6-2005 on Shyamnarayan Gowala (PW 10) lodged a complaint/ejahar as written by Sri Rajkumar Gowala (PW 14) to the O/C Dharmanagar P.S. that he got information through Sri Badal Panika of South Ganganagar (PW 1) that the accused-appellant had apprehended and brought his younger brother deceased Ramnarayan Gowala from Ganganagar Bazar and then after searching he came to the accused-appellant''s house with the people of the locality and saw his brother Ramanarayan lying dead in the West south corner of the east viti hut of the accused-appellant with bleeding injuries on his mouth, nose and eyes and swelling injuries on the left hand. At that time the accused and his family members were not found in the house. It is also stated in the complaint/ejahar that the accused had killed his brother and fled away.

On the basis of the aforesaid complaint/ejahar of PW 10, brother of the deceased, a specific police case being Dharmanagar P.S. Case No. 72 of 2005 u/s 302 , I.P.C. was registered and consequent thereto investigation was conducted by the investigating authority and finally submitted charge-sheet against the accused-appellant. As the case was exclusively triable by the Court of Sessions the same was committed to the Addl. Sessions Judge, North Tripura, Dharmanagar.

Learned trial Judge, on the basis of the materials on record and after hearing the learned counsel for the parties framed charge against the accused as under:--

That, you on 29-6-2005 at any time after 20.30. hours of the night at South Ganganagar under Dharmanagar Police Station committed murder by intentionally or knowingly causing the death of Ramnarayan Gowala, the brother of the informant and thereby committed an offence punishable u/s 302 of the Indian Penal Code and within the cognizance of this Court of Sessions.

And I hereby direct that you be tried by this Court on the said charge.

As the accused pleaded innocence and false implication and claimed to be tried, the learned trial Judge proceeded with the examination of the prosecution witnesses. The prosecution, in support of its case, examined as many as 14 witnesses and adduced a number of documents including the FIR, inquest report, post-mortem report, seizure list relating to seizure of blood stained earth and weapon of offence (Lathi), etc. which were exhibited. On completion of recording of evidence of the prosecution witnesses, statement of the accused u/s 313 of Cr.P.C. was recorded. The accused made a bold denial of every aspect and gave an explanation that they were out of their house as they were searching for their missing daughter and chose not to adduce any evidence. The learned trial Judge on the basis of the materials brought on record found the accused guilty of the offence for which he was charged and consequent thereto convicted and sentenced, as stated supra.

It is the undisputed position that the death was homicidal in nature and the dead body of the deceased was found in the courtyard and as there was no direct evidence entire prosecution case rests on circumstantial evidence.

Mr. Datta, learned counsel while urging for setting aside the judgment of conviction and order of sentence, as impugned, would contend that the learned trial Court mainly based on the evidence of PW 14 for convicting the accused as the said witness deposed in his evidence that he saw the accused call the deceased from Ganganagar market to go with him. The said witness in his cross-examination has stated that he did not disclose the said fact to the IO of the case Sri Samir Roy (PW 12) as he was not asked by the IO to do so. According to Mr. Datta, the deposition of such a witness has wrongly been relied upon by the learned trial Judge though no reliance can be placed on such evidence being the same is an approved version and first time in court.

He has also contended that PW 14 being the scribe of the complaint, which was registered as FIR, had the opportunity to inform regarding the alleged last seen of the deceased with the accused but from the FIR it would be evident that the story of the last seen together as stated in totally missing in the FIR and if the evidence relating to last seen together is kept away, then only evidence remains against the accused is that the discovery of dead body of the deceased from the courtyard of the accused, though admittedly neither the accused nor his family members was found in the house of the accused at the relevant time.

He has again contended that admittedly the daughter of the accused Smt. Bina Koiri was missing from their house and according to the prosecution, she voluntarily left her house with the brother of the deceased on the previous night of the occurrence. Thus, the story of searching his daughter who was missing, as narrated in the statement recorded u/s 313 , Cr.P.C., cannot be ruled out.

Mr. Datta, regarding the evidence of other witnesses would contend that some of them are seizure witnesses relating to seizure of blood stained earth as well as the weapon used in the commission of offence (lathi). He has also contended that neither the seized alleged weapon of offence nor the seized blood stained earth was sent for forensic examination. He has also taken us to the evidence of PW 1, Sri Badal Panikar from whom the informant, brother of the deceased got the information regarding the incident of murder of deceased to show that PW 1 did not corroborate the statement in the complaint, inter alia, that he had given information to PW 10 rather he has stated that when he was in house some people of local garden including Tejnarayan Gowala, the brother of deceased went to his house and told him that the accused detained the deceased in his house but those local people and Tejnarayan was neither examined by the Investigating Officer nor produced before the trial Court. Thus, the evidence of PW 1 is also not reliable. He further submitted that it is the admitted position that when the dead body of the deceased was found in the courtyard of the accused neither the accused nor his family members were in the house. Thus, it cannot be ruled out that in their absence some other person put the dead body of the deceased in his house taking the benefit of his and his family members'' absence so that the family of the deceased and accused become enemy.

He has also contended that the alleged confession of guilt of the accused before PW 12, Shri Samir Roy, IO of the case is not admissible as the same is hit by Sections 25 and 26 of the Evidence Act as admittedly at the time of making alleged confession the accused was in the police custody and the recovery of the weapon of offence, lathi, at the instance of the accused cannot also be believable as the accused was admittedly under handcuff with the police personnel. Thus, the question of showing the weapon of offence (lathi) by him is also doubtful and no such statement u/s 27 was recorded by the IO.

He finally contended that the law requires that the circumstances relied upon in support of the conviction have to be fully established and that the chain of evidences furnished by these circumstances must be complete so as to not leave any reasonable doubt for conclusion consistent with the innocence of the accused. The circumstances from which conclusion of guilt is to be drawn must not only be fully established but also be of conclusive in nature and consistent with the hypothesis of the guilt of the accused and the said circumstances must not be explained by way of any other hypothesis except the guilt of the accused and when all the said circumstances are collectively considered the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. Thus, the accused is liable to be acquitted and the appeal deserves to be allowed, particularly, when the learned trial Judge convicted the accused on wrong appreciation of the evidence of PW 14 regarding the last seen together and the circumstances like alleged recovery of weapon of offence lathi.

Mr. Debnath, learned Addl. PP for the State while countering the submission of Mr. Datta and supporting the impugned judgment of conviction and order of sentence would contend that the entire prosecution case is admittedly based on circumstantial evidence and particularly, the evidence of PW 14, who has last seen the deceased with the accused at Ganganagar market at 6 p.m. on 29-6-2005 and the said witness also in his deposition told that while he was in the house of his father in law, complainant/informant, PW 10 at about 10.15 p.m., 4/5 persons of Ganganagar Tea Estate told that the accused assaulted and severely injured the deceased as his daughter and the brother of the informant fled away without his consent and also admittedly the dead body was found in the courtyard of the accused. Thus, the circumstantial evidence as adduced by the prosecution has completed the chain for the conclusion that except the accused no other person killed the deceased. Thus, it would not be proper for the court to disbelieve the case of the prosecution and quash the order of conviction and sentence passed by the trial Judge.

As the prosecution case is mainly based on the circumstances, the learned trial Court also convicted the accused considering the circumstances as under:

(i) Deceased Ramnarayan Gowala was last seen with the accused while the deceased was called upon by the accused at Ganganagar market and consequent thereto the deceased proceeded with the accused.

(ii) Dead body of the deceased was found in the courtyard of the accused.

(iii) The accused had confessed before PW 12, Shri Samir Roy, IO of the case that he had killed the deceased namely, Ramnarayan Gowala.

(iv) The lathi which was used for killing the deceased had also been recovered on being shown by the accused.

(v) Nature of the injuries as described by the doctors in the post-mortem report also corroborated the injuries found by the prosecution witnesses on the dead body of the deceased.

(vi) Seizure of weapon is proved.

To prove the aforesaid circumstances and the guilt of the accused prosecution examined 14 witnesses including the official witnesses, who are as under:

PW 1, Badal Panikar is the witness of inquest report and also went to the police station and thereafter in the house of the accused. PW 10, Shyamnarayan Gowala, is the informant and the brother of deceased. PW 14, Rajkumar Gowala, is the scribe of the complaint/ejahar who had last seen the deceased with the accused at Ganganagar market. PW 8, Karuna Roy and PW 9, Md. Irfan Ali, the Special Police Officers and PW 13 Bilu Koiri, co-villager of the accused are the witnesses of seizure of lathi and alleged confession. PW 2, Mangal Gour, PW 5 Bajal Koroi, PW 6 Laxmi Karmakar are the witnesses who went to the police station and thereafter went to the house of the accused and found the dead body of the deceased in the courtyard of the accused. PW 7, Rajkumar Bayama is the witness of seizure of blood stained earth. PW 3 Dr. Dipen Roy, PW 4 Dr. Manindra Kr. Malakar and PW 11, Dr. Bimalendu Deb, are the doctors who conducted the post-mortem examination on the dead body of the deceased and submitted the post-mortem report (Ext. 2). PW 12, Samir Roy is the Investigating Officer.

As admittedly the whole prosecution case is based on the evidence of PW 1, PW 10, PW 14, who have last seen the deceased with the accused before his death, and PW 12, IO of the case, we are of the considered opinion that except these witnesses the evidence of other witnesses, who have not directly or indirectly implicated the accused for commission of the alleged offence, is not required to be discussed. Accordingly, the salient portion of the evidence of PW 1, PW 10, PW 12 and PW 14 are discussed hereunder as that would be profitable for considering the impugned judgment and order.

PW 1, Shri Badal Panikar, in his deposition stated that the deceased Ramnarayan Gowala was murdered and on the night of occurrence when he was in his house at about 10.00 p.m. some people of the local garden including Tejnarayan Gowala, the brother of the deceased came to his house and told him that the accused detained the deceased in his house and then the said witness went to the Manager of the local Tea Garden along with others and the Manager advised them to inform the matter to the police and thereafter they came to Dharmanagar Police Station and informed the matter. Thereafter, they again went to the house of the accused along with the police and found the dead body of the deceased in the courtyard with injury on the forehead. This witness also stated that earlier to the incident they heard that the younger brother of the deceased namely, Dipnarayan Gowala had taken away the daughter of the accused Smt. Bina Koiri against the will of the family.

In cross this witness stated that both the deceased and the accused were the registered labour of the tea garden and while they arrived in the house of the accused on that night, they found none of the family members of the accused including the accused and he heard about missing of the daughter of the accused at about 4 p.m. prior to that night.

PW 10, Shri Shyamnarayan Gowala, brother of the deceased, informant, in his deposition stated that on 29-6-2005 at about 10.00 p.m. some of the villagers of Ganganagar came to his house and told him that the accused took his deceased brother forcibly to his house and killed him there. He also stated that on that day marriage was held between his brother Dipnarayan Gowala and the daughter of the accused Bina Koiri. He further stated that he along with others went to the Manager of the local tea garden who advised them to go to the local police station and accordingly they went to the police station and thereafter to the house of the accused along with the police and found the dead body of his deceased brother Ramnarayan Gowala lying in the courtyard in front of the hut of the accused with bleeding injuries on the forehead and hand and lodged a complaint before the police on the spot after midnight. He has proved his signature which is marked as exhibit 5/1. He has also stated that complaint was written by his son in law, PW 14, who is a resident of Murticherra Tea Garden and came to his house on the night of occurrence along with his daughter.

In cross, he specifically stated that he did not write in his written FIR that love marriage was held between the daughter of the accused and his younger brother and his brother Ramnarayan Gowala was killed. He has also stated in cross that he does not know where and at what time the daughter of the accused and his younger brother performed love marriage and where they were residing at that time.

PW 12, Shri Samir Roy, IO of the case who received the complaint/FIR from PW 10, brother of the deceased, in his statement corroborated the evidence of PWs 1, 2, 5, 6 and 7 to the extent that they have stated that on 29-6-2005 they went to the house of accused and found the dead body of the deceased in the courtyard of his house. This witness also stated in his evidence that he had seized some blood stained earth from the place of occurrence and prepared the inquest report and thereafter on 2-7-2005 conducted raid for the arrest of the accused and consequent thereto arrested the accused who confessed his guilt that he had killed the deceased Ramnarayan Gowala by a wooden lathi and had kept the said lathi nearby his courtyard and also told that he would be able to show and find out the said lathi and accordingly on that day in the afternoon on being shown by the accused in presence of PW 8 and PW 9, special police officers and PW 13, Shir Bilu Koiri, a co-villager, the said lathi was seized and forwarded the accused before the court for recording his statement u/s 164 , Cr.P.C. and the accused declined to make any confessional statement.

In his cross, he stated that he did not search the place, i.e. the corner of the courtyard from where the weapon of offence was discovered by the accused and also did not arrange for taking photographs of the dead body and the place where it was lying due to darkness/for want of light. He also stated that on 2-7-2005 at about 1.45 hrs. he had arrested the accused from the village path of Ganganagar while the accused was moving there and he did not record the statement of the accused when he confessed his guilt and expressed his willingness for leading to the discovery of the weapon of offence.

PW 14, Shri Rajkumar Gowala, the star witness of the prosecution, in his evidence stated that he came to the house of the informant, his father in law, on 29-6-2005 as his wife came there earlier and on that day he went to Ganganagar market along with his relatives. At about 6 p.m. the accused called the deceased to go to his house as another person was waiting and accordingly, the deceased proceeded with the accused. He also narrated the story which his father-in-law, PW 10 had earlier narrated, stating that 4/5 persons of the Ganganagar Tea Estate came to his father in law''s house and told that the accused assaulted and severely injured deceased as his daughter and brother of the deceased fled away without their consent and he and his father in law along with other persons went to the Manager of the Garden and as advised by him went to Dharmanagar police station and then with the police went to the house of the accused and found the dead body of the deceased lying in the courtyard of his house, and then his father in law lodged the written complaint which was written by him. This witness also proved exhibit 5, the FIR and his signature as scribe which is marked as exhibit 5/5. He has also stated that the accused was known to him by face prior to the incident but subsequently he came to know him by face and name after the incident and he also identified the accused in the dock. He also stated that at the night of the occurrence, accused and his family members were found missing from their house.

In cross, he stated that he did not tell to the Darogababu that he saw the accused who took the accused from Ganganagar market stating that he requires to go to his house as another person was waiting there. This witness gave explanation for non-mentioning the aforesaid fact to the IO as the IO did not ask about the same.

The description of the injuries as available in the post-mortem report prepared by PW 3 Dr. Dipen Roy and signed by PW 4, Dr. Manindra Kr. Malakar and PW 11, Dr. Bimalendu Deb, is as follows:--

(1) Lacerated injury over back of the left arm -- 3" x 2" x 1/3". Direction transverse. (2) Haematoma over the forehead including left eye brow and left upper eye lid. Size:--3" radius. (3) Haematoma over forehead above Rt. Eye. 11/2" radius. (4) Clotted blood in left ear and nostrils. (5) Lacerated injury over left occipito-paerital region of the scalp with depressed fracture of skull. Direction-before backwards. Size:-- 61/2" x 3" x 4". (6) Brain:-- Massive laceration left occipito-paerital lobes of Brain along depressed fracture of skull. Clotted bold present. (7) closed fracture-left humerus at junction of upper 2/3rd and lower 1/3rd. (8) Depressed fracture of occipital and parietal bones of skull.

The aforesaid doctors opined that the death of the victim was caused due to massive laceration of the brain that intracranial haemorrhage following head injury which is ante-mortem and homicidal in nature.

It appears from the impugned judgment that the learned trial Judge in his findings noted as under:--

the accused was last seen with the deceased Ramanarayan Gowala as he called him from the Ganganagar market to his house stating that some person is waiting for him in his house. It reveals from the evidence on record that the matter of voluntarily leaving of his daughter Smt. Bina Koiri with the brother of deceased Dipnarayan Gowala happened on the previous day of the night of occurrence and his daughter was left with said Dipanarayan Gowala beyond his consent and the consent of his family members. So, it is probable that deceased Ramnarayan Gowala may go with him in his house to settle the dispute, if any person was awaiting there for that purpose and it was in the evening at about 6 p.m. and subsequently, the deceased Ramnarayan Gowala found in his courtyard at about mid-night, i.e., after about 5/6 houses. So, from the record it reveals that the deceased Ramnarayan Gowala was last seen with the accused Bikash Koiri and as such the last seen theory shall apply which is one of the circumstantial evidence.

The learned trial Judge in his findings also noted as under:--

after arrest by the police during interrogation the accused Bikash Koiri admitted his guilt and also led the Investigating Officer and PWs 8, 9 and 13 to recover the weapon of offence, the wooden lathi, Exhibit-II. So from the said evidence on record, is discussed above, the chain of evidence from taking of the deceased from Ganganagar market up to the finding the dead body of the deceased in the courtyard of the house of the accused, found within a short span of 4/5 hours and the accused could not explain the lying of the dead body in his house and also absconding with his family members from the house when the dead body of the deceased Ramnarayan Gowala was lying in his courtyard. So, the chain of evidence so completed as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must appear that in human probability the act have been done by the accused and non-else.

On careful consideration of the submission of the learned counsel for the parties and on scrutiny of the evidence it is the admitted position that the whole case of the prosecution is based on last seen together theory and the appearance of the dead body in the courtyard of the accused as well as the extra judicial confessional statement of the accused and the recovery of the lathi, alleged weapon used for commission of offence and finally, the nature of injuries available on the dead body of the deceased.

In

Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan (2013 (5) SCC 722 (AIR 2013 SC 3150)

the Apex Court while examining a case of circumstantial evidence observed, as under:--

Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ''may be'' proved and ''will be proved''. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ''may be'' and ''must be'' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ''may be'' true and ''must be'' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ''may be'' true and ''must be'' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.

As the whole case is based on circumstantial evidence, it would be profitable for us to discuss the law laid down by the Apex Court as to how and when an accused can be convicted on the basis of circumstantial evidence.

In

Hanumant Govind Nargundkar v. State of M.P., : AIR 1952 SC 343

, the Apex Court observed as under:--

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.

In

Sharad Birdhichand Sarda v. State of Maharashtra, : AIR 1984 SC 1622

, the Apex Court taking note of its earlier decision held as under:-

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in

Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 (AIR 1973 SC 2622)

where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.

(2) 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;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

In

Padala Veera Reddy v. State of A.P., : 1989 Supp (2) SCC 706 (AIR 1990 SC 79)

, the Apex Court again opined as under:--

Before adverting to the arguments advanced by the learned counsel, we shall at the threshold point out that in the present case here is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The Apex Court also considered the cases based on circumstantial evidence and reiterated the principle laid down by it earlier as to when an inference can be drawn about the guilt of the accused and consequent thereto order of conviction can be passed. (See

C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 (AIR 1996 SC 3390)

;

Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 19 SCC 172 (AIR 2006 SC 1656)

;

State of Goa v. Pandurang Mohite (2008) 16 SCC 714 (AIR 2009 SC 1066)

;

G. Parshwanath v. State of Karnataka (2010) 8 SCC 593 (AIR 2010 SC 2914)

.

In

Rajkumar Singh (AIR 2013 SC 3150) (supra)

the Apex Court also took note of

Babu v. State of Kerala (2010) 9 SCC 189 (AIR 2011 SC (Cri) 809)

, wherein the Apex Court taking note of its earlier decision observed as under:--

Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction.

In a recent decision in

Majenderan Langeswaran v. State (NCT of Delhi) and another (2013) 7 SCC 192 (AIR 2013 SC 2790)

while considering the judgment of the Delhi High Court convicting the appellant therein, on the basis of circumstantial evidence that while the accused and the deceased were staying in Cabin No. 25, the accused was temporarily shifted from that cabin to Cabin No. 23 due to the above incident of assault and at about 15.10 hrs. the accused allegedly approached IInd Officer Kalyan Singh with a blood stained knife in his hand and his hands smearing in blood and he is alleged to have confessed before him that he had killed L. Shivaraman, the Apex Court set aside the judgment of conviction, acquitting the appellant therein and noted as under:--

27.6 A very relevant piece of evidence which has been noticed by the High Court, but not given due consideration, is that apart from the bloodstained knife (Ext. P-3) and certain other items mentioned in the letter of Investigating Officer, one sealed cardboard parcel containing blue-coloured soaked boiler suit worn by the deceased at the time of incident was also sent to CFSL for examination and opinion. In the said sealed cardboard box, two Exhibits (2-a and 2-b) were found. Ext. 2-a was the dark blue coloured boiler suit and Ext. 2-b was a metallic blade fitted in a wooden handle like a knife. The length of the metallic blade is about 5.5 centimeter with one edge sharp and another blunt having a round tip at one end. None of the prosecution witnesses including the Investigating Officer, stated anything as to how and wherefrom the said knife (Ext. 2-b) was recovered and kept with the boiler suit in the same cardboard box. This knife (Ext. 2-b) also bore human blood-stained matching ''O'' group of the deceased. As per the postmortem report, stab wounds on the neck and chest of the deceased might be by the use of the said weapon Ext. 2-b. The said knife (Ext. 2-b) was not subjected to examination to find out the presence of fingerprints, if any, of the appellant. The said knife (Ext. 2-b) was also not shown to the doctor (PW-19) who conducted the post-mortem examination on the body of the deceased, to seek his opinion if the same could have been possible weapon of offence. Even the opinion of the expert witness (PW 22) was not sought as to whether the cuts on the boiler suit could have been caused by that knife.

27.7 One more important aspect which has not been taken note of by the trial Court and the High Court is that as per the prosecution case, the appellant was the trouble maker and instigated other crew members not to steer the ship manually unless the officers give it in writing about fulfillment of their demand of payment of long overdue overtime. This vital piece of evidence regarding the enmity of the appellant with the higher officials and others has been suppressed: instead, the prosecution tried to show that there was no enmity towards the appellant.

27.8 Admittedly, after the alleged incident, the Master of the ship got the scene of offence cleaned like a vision and nothing was kept intact in and around the cabin where the offence was committed. Even the Investigating Officer failed to inspect the cabin. No site plan was prepared by the Investigating Officer. Before the arrival of the Investigating Agency officials, the place of occurrence including cabin was completely washed and cleaned in such a way as if nothing had happened in the cabin and the place around it.

In

Sharad Birdhichand Sarda (AIR 1984 SC 1622) (supra)

the Apex Court has also discussed how to deal with the evidence of close relatives of victim who are interested either consciously or unconsciously due to love and affection for the deceased to depose against the accused-murderer and noted that the court has to examine such evidence with very great care and caution as those witnesses would be guided by a spirit of revenge or nemesis against the accused person. In the instant case also both the informant PW-10 and his son in law, PW-14 are relative witnesses and to some extent interested and thus their evidence has to be surveyed by us with great caution.

On scrutiny of the deposition of PW-14, particularly his cross, it appears that he did not disclose to anybody else except before the trial Court that he had seen the deceased with the accused at Ganganagar market for the last time before discovery of the dead body. It is also the admitted position that he is the scribe of the FIR and the son-in-law of PW-10 and had met with his father-in-law before going to the house of the accused and also before lodging the FIR. Thus, had he seen the deceased in the Ganganagar market with the accused then he could have disclosed the said fact to the informant and also could have written the said fact of the last seen of the deceased with the accused in the FIR. But admittedly neither he disclosed the said fact to PW-10 nor stated in the FIR in which he was the scribe and even not before the IO who recorded his statement u/s 161 , Cr.P.C. Thus, it can be easily said that the finding of the learned trial Court, as stated supra, is fully based on wrong appreciation of evidence on record and awarded conviction and sentence on mere presumption and probability when such presumption is inconsistent with guilty of the accused and prejudicial to his interest, as according to

Babu Singh ( : AIR 2011 SC (Cri) 809) (supra)

every accused is to be presumed to be innocent unless the guilt is proved being presumption of innocence is a human right.

Not only that, learned trial Judge while discussing the evidence of PW-14 though noted that during cross-examination the said witness did not state the aforesaid fact to the IO and relied upon the explanation given by the said witness that he did not say the same to the IO as because the IO did not ask/inquire the same from him and such statement of this witness is not an exaggeration of his version recorded u/s 161 , Cr.P.C. but purely a defect in the investigation of the case, which we are unable to accept, as such a statement is nothing but approved version first time in the court and the same cannot be relied upon to convict a person unless some other corroborative evidence is available on record. Thus, we find some force in the submission advanced by Mr. Datta.

In a case of circumstantial evidence, when theory of last seen together is one of the circumstances to link the accused with the offence and prove his guilt but the said fact, if disclosed for the first time in the court, should not be accepted as always last seen together itself cannot be a ground for forming an opinion that it is only the accused who has committed the offence. The prosecution has to prove last seen together with the other connecting circumstances that except the accused no other person could commit the offence. In the instant case, it cannot be ruled out that when the accused and his family members were out of their house for searching their missing girl, who had allegedly left with the brother of the deceased, some other persons might have committed the murder of the deceased and kept the dead body in the courtyard of the accused, as contended by Mr. Datta. There is no doubt that every killing of human is a heinous crime and loss to the society but mere heinousness of a crime or killing of a person itself cannot suggest the court for convicting a person being accused unless the prosecution is able to connect the said accused with the commission of offence beyond all reasonable doubt.

In

Gambhir v. State of Maharashtra, (1982) 2 SCC 351 (AIR 1982 SC 1157)

, their Lordships while considering the order of conviction of the appellant therein u/s 302 , I.P.C. passed by the trial Court and affirmed by the Bombay High Court, Nagpur Bench convicting the appellant therein u/s 302 , I.P.C. and sentencing him to death for the murder of deceased Laxmi and her two children, discussed about the circumstantial evidence, particularly, the last seen theory as the appellant was last seen in the company of Laxmi at about 10 p.m. at night on the same day under a Neem tree and thereafter neither Laxmi nor her children were seen alive, and noted in paragraph 19 of the said report as under:--

On scrutiny the only thing established is that the accused and other persons used to visit the house of Laxmi during the absence of her husband and that he was again seen in the company of Laxmi on February, 26 in the night till before dinner time. This single circumstance by itself is too feeble to connect the accused with the murder of Laxmi and her children.

If the evidence relating to last seen together, as stated by PW 14 is taken away from the evidence of the prosecution, then the evidence remains regarding extra-judicial confession and recovery of weapon, lathi, seized by the IO which was alleged to have been used by the accused for committing the offence, on being shown by the accused in presence of PWs-8, 9 and 13.

The extra-judicial confession made by the accused to PW 12 cannot be considered as admissible evidence in view of the decision of the Division Bench of the Gauhati High Court in

State of Assam v. Amman Das, : 2008 Cri LJ 1276

, which reads as under:--

In the light of the above we are of the opinion that the expression "Magistrate" occurring u/s 26 of the Indian Evidence Act can only mean a Judicial Magistrate as the functions of a Magistrate recording a confession of a person in police custody is likely to expose the person making the confession to a punishment. This conclusion of ours gains further support from the very scheme of the provisions of Sections 25 to 27 of the Evidence Act. Section 25 of the Evidence Act makes a declaration in no uncertain terms that a confession made to a police officer shall not be proved against the accused. The rationale behind this declaration is too well settled by a catena of decisions to the effect that in the absence of such provisions the police are likely to extract confession from the accused by unwholesome methods. Section 26 of the Act is a great distinction to Section 25 . While Section 25 prohibits the proof of a confession made to a police officer, Section 26 prohibits the proof of a confession made to any person while the accused is in the custody of police. Obviously, the provisions is made in order to prevent the police from extracting confession from the accused while he is under custody and ingeniously circumventing the prohibition of law contained u/s 25 by making it appear that the confession was not in fact made to a police officer, but somebody else. The scheme of the provisions of Sections 25 to 27 was examined by the Supreme Court in

Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 : 1995 AIR SCW 2126

, wherein at para 16, the Supreme Court held:--

16.........By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression ''accused of any offence'' in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer u/s 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. u/s 164 , Cr.P.C. a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the Section itself and can be relied upon at the trial.

Admittedly, the blood-stained earth as well as the lathi seized by the IO were not sent for forensic examination and not only that the said lathi was also not sent to the fingerprint expert. Whether the blood-stained earth contains the blood of the accused and whether the seized lathi, allegedly shown by the accused, was used in the commission of offence unless proved by prosecution by scientific examination it is very difficult to connect the accused with those materials. If the use of seized lathi by the accused is also disbelieved, which we do in this case then it can be safely said that evidence adduced by the prosecution is not only shaky but also inconclusive and improbable and inconsistent with the guilt of the accused.

By this time it is settled that in case of grave crime, the standard of proof should always be greater and an accused should not be convicted merely on the basis of suspicion and/or probability as they do not amount to legal proof and when from the evidence on record two plausible views are possible and one of which favours the prosecution and the other is in favour of the accused, then the accused is entitled to the benefit of doubt.

In view of the above, we have no hesitation to hold that the prosecution fails to prove the complete chain of circumstantial evidence as required for drawing an inference that the murder of the deceased was committed only by the accused and none else. Thus, we have no other alternative except to provide the benefit of doubt to the accused. Accordingly, we do so. The impugned judgment of conviction and order of sentence passed by the learned trial Judge in ST 63 (NT/D)/2005 is hereby set aside. In the result, the appeal stands allowed. The accused-appellant herein, be set at liberty forthwith, if he is not required in connection with any other case.

Send down the LC records immediately. Appeal allowed.