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2009 DIGILAW 235 (GAU)

Bipul Chaudhary v. State of Tripura

2009-04-02

C.R.SARMA, T.NANDAKUMAR SINGH

body2009
JUDGMENT T. Nanda Kumar Singh, j. 1. The appellant/accused, Sri Bipul Choudhury, calls in question the legality of the judgment passed by the learned Additional Sessions Judge, South Tripura, Udaipur on 11.11.2002 in S.T. No. 21 (ST/S)/2001 convicting the appellant/accused under Section 302 of the Indian Penal Code (for short 'IPC') and sentencing him to suffer rigorous imprisonment for life land to pay a fine of Rs. 10,000/-, in default, to suffer additional imprisonment for two years. 2. Heard Mr. S. Sarkar, learned Counsel appearing for the appellant and Mr. A. Ghosh, learned additional public prosecutor for the State-respondent. 3. The case of the prosecution is mentioned in details in the impugned judgment dated 11.11.2002 passed by the learned additional Sessions Judge, South Tripura, Udaipur. The prosecution version, in a nutshell, is recapitulated for deciding this criminal appeal.' Sipra Das, the daughter of the informant Sri Birendra Kumar Das (PW No. 1), was given in marriage with Sri Bipul Choudhury (appellant/accused) of West Jalefa according to Hindu Rites, sometime in 1995. After her marriage, Sipra Das was residing in the joint family consisting of her husband Sri Bipul Choudhury (appellant/accused); father-in-law Chitta Ranjan Choudhury; mother-in-law Smti. Usha Rani Choudhury and elder Brother-in-law (elder brother of the appellant/accused) Sri Babul Choudhury. After three months of the marriage, the appellant accused Bipul Choudhary; her mother-in-law Smti. Usha Rani Choudhury and her elder brother-in-law Sri Babul Choudhary demanded further marriage dowry of Rs. 30,000/- alleged to have been deposited in the name of the Sipra Das (Choudhury) in fixed deposit in a nationalized bank, and the order to fulfill the said demand of additional marriage dowry, the appellant/accused Bipul Choudhary; the elder brother-in-law Sri Babul Choudhury and mother-in-law Smti. Usha Rani Choudhury tortured Sipra Das (Choudhury) physically and mentally on different occasions. In order to make the life of Sipra Das (Choudhury) happy and peaceful in the matrimonial home, the father of Sipra Das (Choudhury), Sri Birendra Kumar Das (PW No. 1) gave some articles and money from time to time but he could not satisfied the greed of the in-laws, i.e. the appellant accused Bipul Choudhury; elder brother- in-law Sri Babul Choudhury and mother-in-law Smti. Usha Rani Choudhury. Sipra Das (Choudhury) also narrated her misfortune and the physical and mental tortures to her by the appellant/accused Bipul Choudhury; her elder brother-in-law Sri Babul Choudhury and mother-in-law Smti. Usha Rani Choudhury. Sipra Das (Choudhury) also narrated her misfortune and the physical and mental tortures to her by the appellant/accused Bipul Choudhury; her elder brother-in-law Sri Babul Choudhury and mother-in-law Smti. Usha Rani Choudhury to her father Sri Birendra Kumar Das; her step mother Smti. Chhaon Das (PW No. 17); her aunt Smti. Jayarani Roy (PW No. 3) and one Sri Dipa Choudhury (PW No. 8). Sipra Das (Choudhury); and also sent letters to her father Sri Birendra Kumar Das, standing that she had been subjected to mental and physical tortures by the appellant/accused, her elder brother-in-law Sri Babul Choudhury and mother-in-law Smti. Usha Rani Choudhury for fulfilling their greed and also that she preferred death rather than living in a miserable condition in the family of her in-laws. Three letters of deceased Sipra Das (Choudhury) addressed to her father Sri Birendra Kumar Das (PW No. 1) was exhibited and market Exbt. M.O. 1 (series) during the course of trial. 4. On 14.2.2000 at about 7.30 p.m., Mr. A.R. Banik, the Officer- in-charge of Sabroom Police Station received a written information from, the Sub-Divisional Medical Officer, Sabroom that a dead body of one Sipra Das (Choudhury) was lying in the hospital and he was requested for arranging post-mortem examination. The Officer-in-charge of Sabroom Police Station after registering a case of unnatural death being No. 2/2000 under Section 174 of the Code of Criminal Procedure (for short 'Cr PC) directed Mr. Indrajit Sinha, Sub-Inspector, to enquire into the matter. Sri Indrajit Sinha (PW No. 19) held an inquest of the dead body of Sipra Das (Choudhury) in the Emergency Room of the hospital as identified by Chitta Ranjan Choudhury (father-in- law of the deceased), Tapan Choudhury and Babul Choudhury (elder brother-in-law of the deceased). On 15.2.2000 post-mortem examination of the dead body of deceased Sipra Das (Choudhury) was done by a team of Doctors, namely, Dr. Dipankar Ghosh (PW No. 13), Dr. Bidyut Das (PW No. 14) and Dr. Gautam Majumdar (PW No. 21). 5. On 16.2.2000 at about 4.30 p.m. Sri Birendra Kumar Das (PW No. 1) filed a written Ejahar to the Officer-in-charge of Sabroom Police Station alleging that his daughter, deceased Sipra Das (Choudhury) was subjected to extreme physical and' mental torture in order to fulfill the demand for further marriage dowry of Rs. Gautam Majumdar (PW No. 21). 5. On 16.2.2000 at about 4.30 p.m. Sri Birendra Kumar Das (PW No. 1) filed a written Ejahar to the Officer-in-charge of Sabroom Police Station alleging that his daughter, deceased Sipra Das (Choudhury) was subjected to extreme physical and' mental torture in order to fulfill the demand for further marriage dowry of Rs. 30,000/-by the appellant/accused Sri Bipul Choudhury; her elder brother-in-law Sri Babul Choudhury and her mother-in-law Smti. Usha Rani Choudhury. On 14.2.2000 he came to learn that his daughter, Sipra Das (Choudhury) had committed suicide but it was not at all true and he had the firm believe that the appellant/accused, her elder brother-in-law Sri Babul Choudhury and her mother-in-law Smti. Usha Rani Choudhury had killed her (Sipra Das [Choudhury]). 6. On receipt of the said written Ejahar, a criminal case being Sabroom P.S. Case No. 11/2000 under Sections 498-A and 304-B of the IPC was registered against the appellant/accused Sri Bipul Choudhury, Sri Babul Choudhury and Smti. Usha Rani Choudhury and Mr. Indrajit Sinha, Sub-Inspector (PW No. 19), who had already taken up the preliminary steps, was directed to continue the investigation and later on the investigation was taken over by one Sri Tushar Kanti Das (PW No. 20), Sub-Divisional Police Officer, Sabroom. After completion of the investigation, Charge-sheet of the said criminal case, i.e. Sabroom PS Case No. 11/2000 was submitted by Sri Tushar Kanti Das (PW No. 20) against the appellant/accused Sri Bipul Choudhury, Sri Babul Choudhury and Smti. Usha Rani Choudhury for the offence punishable under Sections 498-A and 304-B of the IPC. The learned Sub-Divisional Judicial Magistrate, Sabroom committed the case, as the said offences are exclusively triable by the learned Sessions Judge, to the learned Sessions Judge, who after framing the charge against the appellant/accused Sri Bipul Choudhury, Sri Babul Choudhury and Smti. Usha Rani Choudhury, had transferred the case to the learned Additional Sessions Judge, South Tripura, Udaipur for trial and accordingly, the learned Additional Sessions Judge conducted the trial of the S.T. No. 21 (ST/S)/2001. 7. The charge framed against the appellant/accused, Sri Bipul Choudhury, Sri Babul Choudhury and Smti. Usha Rani Choudhury by the learned Sessions Judge, South Tripura, Udaipur reads as follows : "CHARGE I, Sri M.C. Roy, Sessions Judge, South Tripura, Udaipur, do hereby charge you: (1) Sri Bipul Choudhury, (2) Sri Babul Choudhury, (3) Smti. 7. The charge framed against the appellant/accused, Sri Bipul Choudhury, Sri Babul Choudhury and Smti. Usha Rani Choudhury by the learned Sessions Judge, South Tripura, Udaipur reads as follows : "CHARGE I, Sri M.C. Roy, Sessions Judge, South Tripura, Udaipur, do hereby charge you: (1) Sri Bipul Choudhury, (2) Sri Babul Choudhury, (3) Smti. Usha Rani Choudhury, as follows: Firstly : That you being the husband and relatives of the husband of deceased Shipra Choudhury since her marriage with one of you namely Sri Bipul Choudhury and during here stay in your house at West Jalefa, under P.S.-Sabroom, subjected her to cruelty and thereby you have committed an offence punishable under Section 498(A) IPC and within my cognizance. Secondly : That you being the husband and others relatives of the husband of deceased Shipra Choudhury caused her death by airway obstruction (Asphyxia) on 14.2.2000 AD at about 1700 hours within 4 (four) years of her marriage with one of you viz. Sri Bipul Choudhury and that soon before her death you all subjected her to cruelty and harassment for or in connection with demand of dowry, and you have thereby committed an offence punishable under Section 304(B) of IPC and within my cognizance. And I hereby direct that you be tried on the said charges by this Court. 8. In order to bring home the charge framed against the appellant/accused Sri Bipul Choudhury, Sri Babul Choudhury and Smti. Usha Rani Choudhury, the prosecution examined as many as 19 (nineteen) witnesses and tendered 2 (two) witnesses, namely, Smti. Matilal Das and Smti. Sell Lodh. There was no eye-witness and the case of the prosecution was based on circumstantial evidence. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by touchstone of law relating to circumstantial evidence as laid down by the Apex Court in a plethora of cases as far back as in 1952. 9. PW No. 1, Sri Birendra Kumar Das is the father of the deceased and the informant of the case, PW No. 2, Smti. Rekha Das is the maidservant of the neighbors of the appellant/accused, who rushed to the house of the appellant/accused immediately after the incident and saw the post occurrence scene. PW No. 3, Smti. Jayanti Roy is the aunt of the deceased and the neighbour of the informant, PW No. 4, Smti. Rekha Das is the maidservant of the neighbors of the appellant/accused, who rushed to the house of the appellant/accused immediately after the incident and saw the post occurrence scene. PW No. 3, Smti. Jayanti Roy is the aunt of the deceased and the neighbour of the informant, PW No. 4, Smti. Anima Lodh is the next door neighbour of the appellant/accused, who was the second person to visit the house of the appellant/accused to witness the post occurrence. PW No. 5, Sri Promod Ranjan Lodh is the husband of the PW No. 4, a close neighbour of the appellant/accused, who visited the house of the appellant/accused after the occurrence with the PW No. 4, Smti. Anima Lodh. PW No. 6, Sri Uttam Das, is the scribe of the FIR PW No, Sri Sabru Tripura is a colleague and next door neighbour of the informant, PW No. 8, Sri Dipen Choudhury and PW No. 9, Sri Pran Gopal Basak are the seizure witnesses of the articles recovered from the dwelling hut of the appellant/accused, Bipul Choudhury. PW No. 12, Jahindra Marak is a witness to the inquest report. PW No. 13, Dr. Dipankar Ghosh, PW No. 14, Dr. Bidyut Kumar Das and PW No. 21 are the medical experts, who conducted postmortem examination on the dead body of deceased Sipra Das (Choudhury). PW. No. 15, Sri Sudan Chandra Das is a police constable who escorted and guarded the dead body of Sipra Das (Choudhury) in the hospital morgue till the autopsy was done. PW No. 17, Smti. Chhabi Das is the step-mother of the deceased PW No. 18, Sri Debasish Majumder is a photographer, who took the photographs of the deceased in the hospital and at the place of occurrence. PW No. 16, Sri Ranjit Das, PW No. 19, Sri Indrajit Sinha and PW No. 20, Sri Tushar Kanti Das are the investigating officers. 10. It is well settled that under the judicial system since its inception it has been accepted that discovery, vindication and the establishment of truth are the main purposes underlying the existence of the Courts of justice. If the Court acts contrary to the role it is expected to play, it will he destruction of the fundamental edifice on which the justice delivery system stands. If the Court acts contrary to the role it is expected to play, it will he destruction of the fundamental edifice on which the justice delivery system stands. Justice Arijit Pasayat of the Supreme Court observed that: by not acting in the expected manner a Judge exposes himself to unnecessary criticism. At the same time the judge is not to be innovative at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness, as observed by Cardozo in The Nature of Judicial Process. Justice must be rooted in confidence. The perception may be wrong about the Judge's bias, but the Judge concerned must be careful too see that no such impression gains ground. Judges like Caesar's wife should be above suspicion. A trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. It will not be correct to say that it is only that accused who must be fairly dealt with. Victims or their family members and their relatives have an inbuilt right to be dealt with fairly in a criminal trial. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial clam. 11. The paramount duty of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may rise from acquittal of guilt is not less than for the conviction of the innocence. The Supreme Court in Zahira Habullah and Anr. v. State of Gujrat and Ors. reported in (2006) 3 SCC 374 through Mr. Justice Arijit Pasayat observed that: In a criminal case fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong is breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. Interest of society is not to be treated completely with disdain and as persona non grata. Interest of society is not to be treated completely with disdain and as persona non grata. If a Criminal Court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator, a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community is serves. 12. justice G.P. Mathur of the Supreme Court observed in Trimukh Maroti Kirkan v. State of Maharashtra reported in 2007 Crl. LJ 20 (SC) that if an offence takes place inside the privacy of a house and in such circumstance where the assailants have all the opportunity to plan and commit the offence at the time and in circumstance of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. 13. The prosecution case as unfolded in the trial was that the deceased Sipra Das (Choudhury) died a homicidal death by strangulation. A team of Doctors, i.e. PW No. 13, Dr. Dipankar Ghosh, PW No. 14, Dr. Bidyut Kumar Das and PW No. 21, Dr. Gautam Majumder, who conducted the postmortem examination on the dead body of Sipra Das (Choudhury), could not give their opinion whether deceased Sipra Das (Choudhury) died a homicidal death. The postmortem examination on the dead body of Sirpra Das (Choudhury) was conducted admittedly by the said three Doctors, namely, PW No. 13, Dr. Dipankar Ghosh, PW No. 14, Dr. Bidyut Kumar Das and PW No. 21, Dr. Gautam Majumder, under the leadership of Dr. Majumder, who is the senior-most Doctor amongst them. Dr. The postmortem examination on the dead body of Sirpra Das (Choudhury) was conducted admittedly by the said three Doctors, namely, PW No. 13, Dr. Dipankar Ghosh, PW No. 14, Dr. Bidyut Kumar Das and PW No. 21, Dr. Gautam Majumder, under the leadership of Dr. Majumder, who is the senior-most Doctor amongst them. Dr. Dipandar Ghosh (PW No. 13) deposed that the death of Sipra Das (Choudhury) was homicidal in nature and also that asphyxial death due to airways obstruction may be caused both by strangulation by ligature and by hanging. He further deposed that the consensus opinion of three Doctors, who conducted the postmortem examination on the dead body of Sipra Das (Choudhury), was that Sipra Das (Choudhury) had asphyxial death (airways obstruction) and also that in the report prepared by them they did not mention that the cause of death of deceased Sipra Das (Choudhury) was due to strangulation and homicidal in nature. The leading Doctor, i.e. Dr. Gautam Majumder (PW N. 21), deposed that they were agreed regarding the findings as to the cause of the death of Sipra Das (Choudhury) and it was due to asphyxia (airways obstruction). In the post mortem report they had not mentioned whether the death was homicidal or suicidal. They had not categorically mentioned it be cause there were some points in favour of homicidal and some points favour of suicidal for which they had avoided the opinion. 14. The learned Additional Sessions Judge by referring to the books, i.e. Medical Jurisprudence and Toxicology. Edited by J.N. Modi, 17th Edition published in 1990 at pages 161 and 162, wherein the learned Author had expressed the symptoms and types of injuries in homicidal death due to strangulation, had come to a finding that the death of Sipra Das (Choudhury) was homicidal in nature and caused by strangulation Neither the learned Additional Sessions Judge not the learned public prosecutor put the said opinion of the learned Author, J.N. Modi regarding the homicidal death due to strangulation to the medical experts, i.e. PW No. 13, Dr. Dipankar Ghosh, PW No. 14, Dr. Bidyut Kumar Das and PW No. 21, Dr. Gautam Majumder for coming to his finding that deceased Sipra Das (Choudhury) died homicidal death. 15. The Apex Court in Sunderlal v. State of Madhay Pradesh reported in AIR 1954 SC 28 and Bhagwan Das and Anr. Dipankar Ghosh, PW No. 14, Dr. Bidyut Kumar Das and PW No. 21, Dr. Gautam Majumder for coming to his finding that deceased Sipra Das (Choudhury) died homicidal death. 15. The Apex Court in Sunderlal v. State of Madhay Pradesh reported in AIR 1954 SC 28 and Bhagwan Das and Anr. v. State of Rajasthan reported in AIR 1957 SC 589 , held that the opinions of the authors expressed in books on Medical Jurisprudence cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in the case at hand, nor is this a satisfactory way of disposing of the evidence of an expensive unless the passages which are sought to discredit his opinion are put to him. In para 13 AIR in Bhagwan Das (supra) reads as follows: (13) The learned Sessions Judge was of the opinion that the evidence of the doctor PW 11 made the story that shivlal Could walk for a little distance up to the Khala of Hukma or was able to talk so as to make a dying declaration, improbable. But the learned Judges of the High Court disposed of this matter by saying that the doctor was comparatively young and that his statement was not in accord with the opinion expressed in books on Medical Jurisprudence by authors like Modi and Lyon. But it cannot be said that the opinion of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us nor is this a satisfactory way of disposing of the evidence of an expert unless the passages which are sought to discredit his opinion are put to him. This Court in Sunderlal v. State of Madhya Pradesh AIR 1954 SC 28 (A), disapproved of judges drawing conclusions adverse to the accused by relying upon such passages in the absence of their being put to medical witnesses. The learned Judges of the High Court were, therefore, in error in accepting the testimony of these witnesses in support of the correctness of the two dying declarations nor could the statement of the deceased alleged to have been made in the circumstances of this case be considered sufficient to support the conviction of the accused. The learned Judges of the High Court were, therefore, in error in accepting the testimony of these witnesses in support of the correctness of the two dying declarations nor could the statement of the deceased alleged to have been made in the circumstances of this case be considered sufficient to support the conviction of the accused. The recovery of the kassi is a wholly neutral circumstance because it has not been proved that it belonged to Bhagwandas. 16. The Apex Court in Vadugu Chanti Babu v. State of A.P. reported in (2002) 6 SCC 547 , held that what is stated by the doctor in the cross-examination is not a conclusive opinion but it is only a possibility. In that case it was the case of the prosecution that the deceased was killed and must be by the appellant, Vadugu Chanti Babu, by strangulation. In this case, the doctor, who conducted the postmortem examination on the dead body of deceased Sipra Das (Choudhury) did not give the definite opinion that the deceased died a homicidal death due to strangulation, but one of the doctors, who had conducted the postmortem examination, in his cross-examination stated that the diseased died a homicidal death due to strangulation. The Apex Court in the absence of materials in the postmortem examination report in Vadugu Chanti Babu's case (supra), had not accepted the statements of the doctor in his cross-examination that the cause of death of the deceased is due to strangulation and homicidal in nature. The relevant portion of the judgment in Vadugu Chanti Babu, (supra) read as follows: .... The learned Sessions Judge thought found no support from the evidence of the doctor relied upon his cross- examination wherein he answered thus : "It is true that generally in all cases of throttling marks of violence and injuries cannot be found". From this the learned Judge drew an inference that in a throttling case the external injury is not a necessity. We cannot accepted the inference drawn by the High Court bases on the stray statement of the doctor in his cross- examination. We should note that what is stated by the doctor in the cross-examination is not a conclusive opinion but it is only a possibility. In the case in hand, there is no other material to show that the death in this case had occurred by throttling . We should note that what is stated by the doctor in the cross-examination is not a conclusive opinion but it is only a possibility. In the case in hand, there is no other material to show that the death in this case had occurred by throttling . More so in the background of the medical evidence, the expert evidence and the chemical examiner's opinion, therefore, this stray statement of the doctor could not have been relied upon by the learned Sessions Judge to come to the conclusion that the death was due to strangulation. 17. Keeping in view of the decision of the Apex Court, we are of the considered view that the benefit of doubt as to whether the deceased Sirpa Das (Choudhury) died a homicidal death due to strangulation should go to the appellant/accused, Bipul Choudhury. We are also of the view that serious suspicion of killing deceased Sipra Das (Choudhury) by the appellant/accused by strangulation cannot take the place of proof. The entire case of the prosecution in the present case as stated above, purely rests on circumstance. It has been constantly laid down by the Apex Court that where a case rests squarely on circumstantial evidence inference of the guilt can be justified only when all the incriminating fact and circumstances are found to be incomputable with the innocence of the accused nor the guilt of any other person. 18. In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh reported in AIR 1952 SC 343 , it was observed by the Apex Court thus: 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 be in 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 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. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 . Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence of plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (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 to 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. 19. The Apex Court in C. Chenga Reddy and Ors. v. State of A.P. reported in 1996 10 SCC 193 , has observed thus: In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap lift in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with the innocence... 20. In Padala Veera Reddy v. State of A.P. and Ors. Moreover, all the circumstances should be complete and there should be no gap lift in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with the innocence... 20. In Padala Veera Reddy v. State of A.P. and Ors. reported in AIR 1990 SC 79 , it was laid down by the Apex Court 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 circumstance should be of a definite tendency unerringly pointing toward guilt of the accused; (3) the circumstance, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within the 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 land and evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 21. In State of U.P. v. Ashok Kumar Srivastava reported in 1992 Cri LJ 1104, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that 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. 22. Vide impugned judgment and order dated 11.11.2002, the learned Trial Court after appreciation of the statement of the PWs for proving the case of the prosecution basing on the circumstantial evidences had come to a finding that the circumstantial evidence against the accused Babul Choudhury and Smt. Usha Rani Choudhury, who were charged along with the appellant/accused Bipul Choudhury of the same offence were not sufficient enough to pass the test for conviction solely of circumstantial evidence and accordingly, acquitted them. 23. 23. PW No. 1, Sri Birendra Kumar Das (informant) deposed that deceased Sipra Das (Choudhury) on many occasions said to him that she had been tortured by the appellant/accused Bipul Choudhury, accused Babul Choudhury and accused Smti. Usha Rani Choudhury to fulfill their greed of further marriage dowry of Rs. 30,000/- and she also sent setters, some of which were exhibited as Exbt.-MO 1 (series), to him narrating the physical and mental tortures to her by the accused. He further deposed that on 14.2.2000 at about 6.30 a.m. he left for Udaipur for official work and in the next following day he returned to his house and he was told by his wife (PW No. 17) that his daughter Sipra Das (Choudhury) died and her body was lying in the Sabroom Sub-Division Hospital. He also stated that there was a rumour that his daughter committed suicide by hanging but he did not believe that said rumour/story. Only on 16.2.2000, he lodged an Ejahar with the Officer-in-charge of Sabroom Police Station, which was written by Uttam Das (PW No. 16) on his dictation. PW No. 2, Smti. Rekha Das, stated that while she was working in the house of Promod Ranjan Lodh (PW No. 5), adjacent to the house of the appellant-accused Bipul Choudhury of Jalefa, at about 5/5.30 p.m. she heard hue and cry in the house of the appellant/accused, i.e. the house of Chitta Ranjan Choudhury (father of the appellant/accused) and at once she rushed to that house and she saw that the accused Smti. Usha Rani Choudhury, i.e. the mother of the appellant/accused Bipul Choudhury, was running towards the hut of the appellant/accused Bipul Choudhury, She further stated that she saw one Benarasi Saree lying on the floor of the hut and the appellant/accused Bipul Choudhury was laying Sipra Das (Choudhury) on a cot. She called the deceased Sipra Das (Choudhury) to which she did not respond. At that time the appellant/accused Bipul Choudhury got fainted remarking that "Hai Sipra what you have done?" In the meantime, the accused Smti. Usha Rani Choudhury brought one pullcart and requested her to put the body of Sipra on that pull cart. The accused Smti. Usha Rani Choudhury caught the head of Sipra while Chitta Ranjan Choudhury held middle portion and she herself held lower portion of Sipra and in this way the body of Sipra was boarded in the pullcart. Usha Rani Choudhury brought one pullcart and requested her to put the body of Sipra on that pull cart. The accused Smti. Usha Rani Choudhury caught the head of Sipra while Chitta Ranjan Choudhury held middle portion and she herself held lower portion of Sipra and in this way the body of Sipra was boarded in the pullcart. She noticed scattered stool in the wearing apparels of Sipra, some of which also got smeared on her hands. In her cross-examination she stated that she saw a Saree was hanging from the beam of the hut and just below it there was a table on the floor. PW No. 4, Smti. Anima Lodh deposed that in her house Smti. Rekha Das (PW No. 2) was working as maidservant. On 14.2.2002 at about 5.30 p.m. when she heard a noise at the house of Chitta Ranjan Choudhury, she went to their house and entered into the dwelling hut of appellant/accused Bipul Choudhury where she saw the body of Sipra on the cot facing upwards. She stated that she saw Chitta Ranjan Choudhury, Smti. Usha Rani Choudhury and Bipul Choudhury in the room, who were observing if Sipra was alive or not. After sometime the body of Sipra was taken to hospital by means of a pullcart and she returned to her own house. She also stated in her cross-examination that Bipul Choudhury was lying in the courtyard in unconscious stage and he was shifted to hospital by his brother Babul Choudhury and his father Chitta Ranjan Choudhury. PW No. 5, Shri Promod Ranjan Lodh, deposed that on hearing hue and cry he rushed to the courtyard of the house of Chitta Ranjan Choudhary on 14.2.2000 at about 5.15 p.m. and he was told that the wife of Bipul committed suicide by hanging. After sometime he saw that the body of Sipra was taken to hospital. In his cross-examination he stated that he noticed the appellant/accused Sri Bipul Choudhury was crying. Other witnesses neither come to the house of the appellant/accused Bipul Choudhury in the evening of 14.2.2000 nor before the occurrence. 24. The appellant/accused also produced one defence witness, i.e., Sri Niranjan Debnath as DW No. 1. Shri Niranjan Debnath stated that the deceased Sipra Das (Choudhury) died by hanging at about 5.30 p.m. on the first day of Falgun. Other witnesses neither come to the house of the appellant/accused Bipul Choudhury in the evening of 14.2.2000 nor before the occurrence. 24. The appellant/accused also produced one defence witness, i.e., Sri Niranjan Debnath as DW No. 1. Shri Niranjan Debnath stated that the deceased Sipra Das (Choudhury) died by hanging at about 5.30 p.m. on the first day of Falgun. While he was returning home from his paddy field, which was situated at a distance of about 10/12 kanis (1 kani = 100 cubits) along the read which runs by the front side of the house of Chitta Ranjan Choudhury, he heard some noise at the house and out of curiosity he entered into the courtyard and saw Bipul Choudhury, i.e. appellant/accused breaking open the wooden door of his dwelling hut. At the time of kicking the door, the appellant accused was calling the name of his wife 'Sipra'. He also advanced to the door and pipped inside the hut and saw that the body of Sipra hanging and Bipul Choudhury woke up the body of Sipra by embracing. The body of Sipra was in kneel down position and appellant/accused Bipul Choudhury united the rope which was around the neck of Sipra and laid down the body of Sipra on a cot. 25. It is clear on careful appreciation of the statement of the PWs that the prosecution had miserably failed to prove that the appellant/accused Bipul Choudhury had killed his wife Sipra Das (Choudhury) by strangulation. It is also quite natural in the course of the human conduct that husband (appellant/accused) fainted on seeing his fife (the deceased Sipra Das) committing suicide by hanging. 26. We are of the considered view that the circumstantial evidences produced by the prosecution are not sufficient enough for coming to an inference of guilt of the accused after testing it by touchstone of law relating the circumstantial evidence laid down by the Apex Court in the cases discussed above. Over and above, the conviction of the appellant/accused Bipul Choudhury by the learned Additional Sessions judge is based on many surmises, conjectures and probabilities of committing the offence by the appellant/accused Bipul Choudhury and, as such the impugned judgment and sentence dated 11.11.2002 passed by the learned Additional Sessions Judge, South Tripura, Udaipur requires to be interfered with. Over and above, the conviction of the appellant/accused Bipul Choudhury by the learned Additional Sessions judge is based on many surmises, conjectures and probabilities of committing the offence by the appellant/accused Bipul Choudhury and, as such the impugned judgment and sentence dated 11.11.2002 passed by the learned Additional Sessions Judge, South Tripura, Udaipur requires to be interfered with. We may refer to the decision of the Apex Court in Malleshappa v. State of Karnataka reported in 2007 (4) Crimes 112 (SC), wherein justice B. Sudershan Reddy observed that no conviction can be based on surmises and conjectures. 27. For the reasons discussed above, the impugned judgment and sentence dated 11.11.2002 passed by the learned Additional Sessions Judge, South Tripura, Udaipur in S.T. No. 21 (ST/S)/2001 is set aside. The appellant Bipul Choudhury is set at liberty. His personal bond and surety bond are discharged.