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2011 DIGILAW 361 (GAU)

State of Tripura v. Biswajit Debnath

2011-04-25

BIPLAB KUMAR SHARMA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Mr. A. Ghosh, learned Addl. Public Prosecutor, Tripura for the Appellant. Also heard Mr. S. Datta, learned Counsel for the accused-Respondent No. 1. We have also perused the entire materials on record. 2. This appeal preferred by the State is against the judgment of acquittal dated 13-9-06 passed by the learned Sessions Judge, South Tripura, Udaipur in ST 47 (ST/S) of 2005. 3. The brief facts leading to initiation of criminal proceeding against the two accused-Respondents are that on 27-5-04, the accused Biswajit Debnath induced the informant's (PW 1) daughter, the victim girl to go with him with the promise to marry her. She was taken to a nearby jungle and at that time, the co-accused Bipul Roy was also with them. When the girl did not return, the PW 1 lodged the FIR dated 01-6-04 stating therein that the accused-Respondent Biswajit Debnath had taken his daughter alluring her to marry and that his friend co-accused Bipul Roy was also with him. In the FIR, it was disclosed that Biswajit had love affairs with the victim for a long time. According to the FIR when the victim girl was taken by Biswajit, the informant along with his wife were working in the field. After return from the field when they could not find their daughter a search was made and after a long search for the whole night, it was the firm belief of the informant that the accused-Respondents had murdered the victim. In the FIR, it was also stated that the dead body was found lying in the jungle and her legs and hands were in fastened condition. 4. On the basis of the aforesaid FIR, the police registered a case as Sabroom PS case No. 30 of 2004 under Section 302 IPC. Later on, Sections 376/34 were also added. On receipt of the FIR, police carried out the investigation. The case being exclusively triable by Sessions court, the same was committed to the said court. The case was registered as ST 47(ST/S) of 2005. 5. During the trial, the prosecution examined as many as 20 witnesses while the accused persons did not examine any witness. However, the statements under Section 313 Code of Criminal Procedure were recorded during which they pleaded not guilty of the charges. The case was registered as ST 47(ST/S) of 2005. 5. During the trial, the prosecution examined as many as 20 witnesses while the accused persons did not examine any witness. However, the statements under Section 313 Code of Criminal Procedure were recorded during which they pleaded not guilty of the charges. The learned trial court by its impugned judgment and order dated 13-9-06 having acquitted the accused-Respondents, the State has preferred this appeal. 6. During the course of hearing, Mr. A. Ghosh, learned Addl. Public Prosecutor, Tripura upon a reference to the grounds of appeal has submitted that the learned trial court ought not to have disbelieved the evidence of P Ws 3, 4, 5 and 6. According to Mr. Ghosh, PW 6 having stated about the presence of the accused-Respondents alongside the deceased girl, applying the test of last seen theory, the learned trial court ought to have convicted the accused-Respondents. He further submits that since in the evidence of P Ws 3, 4 and 5, it appears that the dead body was recovered at the instance of the accused-Respondents, the same was sufficient to hold that it was the accused-Respondents who are responsible for gruesome murder of the victim girl. 7. As against the aforesaid submission made by the learned Addl. Public Prosecutor, Mr. Datta, learned Counsel appearing for the accused-Respondent No. 1 submits that their being absolutely no material to convict the accused-Respondents, the learned trial court has rightly passed the impugned judgment of acquittal. He further submits that mere projection of the theory of last seen together and discovery of the dead body at the instance of the accused, the same cannot lead to conviction of the accused-Respondents. 8. We have considered the rival submissions made by the learned Counsel for the parties. We have also gone through the evidence on record. Although the prosecution examined as many as 20 witnesses, but, as has been observed by the learned trial court, none of the witnesses except stating about the love affairs between the victim and the accused Biswajit could not point out anything as to the involvement of the accused-Respondents in the killing of the victim. Although the prosecution examined as many as 20 witnesses, but, as has been observed by the learned trial court, none of the witnesses except stating about the love affairs between the victim and the accused Biswajit could not point out anything as to the involvement of the accused-Respondents in the killing of the victim. It is true that PW 6 who is the grand mother of the victim in her deposition had stated about seeing the accused persons along with the victim, but that by itself cannot lead to the inference and that too beyond suspicion that it was the accused-Respondents who had killed the victim. This aspect of the matter will have to be considered in the context that victim had love affairs with Biswajit and it was quite natural to have seen them together. 9. P Ws 3, 4 and 5 in their depositions have stated about the fact of discovery of the dead body at the instance of the accused Respondents. Section 27 of the Evidence Act permits so much of information which led to the discovery of a fact to be admitted in evidence. In the instant case, the said P Ws in their depositions had stated that it was at the instance of the accused-Respondent the dead body was recovered. Thus, only that part of the evidence which the accused had allegedly furnished and which led to the discovery of the dead body can be used and not further so as to convict the accused-Respondents on that basis. 10. It is the plea of the learned Addl. Public Prosecutor that although there is no direct evidence to establish the guilt of the accused Respondents, but on the basis of the circumstantial evidence, they are liable to be convicted. Suffice is to say that it has been consistently laid down by the Apex court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In the instant case, except the fact that the victim was seen talking to the accused-Respondents, there is nothing to indicate that the chain of events has been established. In the instant case, except the fact that the victim was seen talking to the accused-Respondents, there is nothing to indicate that the chain of events has been established. Needless to say that the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established and that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. The cumulative effect of all the circumstances 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 AIR 2008 SCW 5600 (Inspector of Police, Tamil Nadu vs. Balaprasanna). 11. Applying the principles relating to establishing the guilt by circumstantial evidence what we find in the instant case is that the circumstances taken cumulatively does not form the chain which can be said to be complete establishing the guilt of the accused-Respondents. 12. In the instant case, the evidence on record cannot be said to be enough to establish the guilt of the accused-Respondents beyond all reasonable doubt. Having regard to the facts and circumstances involved in this case, even if it is argued that another view is possible than that of the one taken by the learned trial court, then also the view taken by the learned trial court in absence of any absurdity in it cannot be interfered with. 13. For all the reasons aforestated, we do not find any merit in this appeal and accordingly, it is dismissed. Appeal dismissed.