Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 1296 (GAU)

Sibu Das @ Bappa v. State of Tripura

2012-11-27

S.C.DAS, S.TALAPATRA

body2012
JUDGMENT S.C. Das 1. Vide judgment and order dated 15.12.2007, passed by learned Additional Sessions Judge, Dharmanagar, North Tripura, in Sessions Trial case No. 23(NT/D) 2007, the appellant named above, was found guilty of the charges framed against him under Sections 392, 302 and 201 of IPC. And vide order dated 17.12.2007, he was sentenced to suffer R.I. for 5 years and to pay a fine of Rs. 5000/- in default of payment to suffer further R.I. for 1 (one) year under Section 392 of IPC and also he was sentenced to suffer imprisonment for life and to pay a fine of Rs. 5000/- in default of payment to suffer further R.I. for 1 (one) year for commission of offence punishable under Section 302 of IPC and again to suffer imprisonment for 5 years and to pay a fine of Rs. 5000/- in default of payment to suffer further R.I. for 1 (one) year for commission of offence punishable under Section 201 of IPC and directed that the sentences shall run consecutively. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence, this appeal is preferred by the convict appellant under Section 374 of Cr. P.C. 2. Heard learned counsel, Mr. R. Dutta for the appellant and learned P.P., Mr. D. Sarkar for the State respondent. 3. Facts, in short, so far noticed in the evidence and materials and record, summarized thus:- 3.1. Mainul Haque (deceased/victim), aged about 22/23 years, a resident of Alopur, P.S. Patharkandi, District Karimganj, Assam, was a driver by profession. He was engaged and was working as driver of Maruti Van vehicle No. AS11B-5586, belonged to Suhabuddin (P.W. 15). On 21.10.2006, the day of Kali-puja, at about 6 a.m. he took the vehicle from the house of the owner (P.W. 15) and went out for trip. He did not return on that day and on the following night. Ainul Haque (P.W. 14) brother of Mainul, went to the house of P.W. 15 to search for Mainul and thereafter both of them (Ainul and Suhabuddin), to find out where about of Mainul, went to Asimganj Motorstand at Kanaibazar and got information from Jafrul Haque (P.W. 16) that Mainul went towards Luaipua with trip of the vehicle. Since Mainul did not return, they lodged missing information with the police of Patharkandi P.S. on 22.10.2006. 3.2. Since Mainul did not return, they lodged missing information with the police of Patharkandi P.S. on 22.10.2006. 3.2. On 26.10.2006 Bhula Halam, P.W. 21 (informant of the case) and some other villagers, found a dead body of an unknown person whose hands and legs were tied with a nylon rope, lying near a culvert and cremation ground at Bhalukcherra by the side of Tilthai-Damcherra road. 3.3. On the same day. Inspector, Hiralal Paul (P.W. 7), O.C. of Panisagar Police Station (for short, PNS PS), on receipt of a telephone call from O.C., Damcherra P.S. came to know about such abandoned dead body and he, at once, after making PNS PS G.D. entry No. 1347 dated 26.10.2006 along with S.I. M.L. Dey (P.W. 19) and staff left for spot and recovered the dead body of an unknown male person. On the spot, P.W. 21 Bhula Halam lodged a written FIR. O.C., PNS PS received the FIR and on the spot directed S.I. M.L. Dey (P.W. 19) to investigate the case. Accordingly, S.I. Dey (for short, I.O.) started investigation. He prepared inquest report over the dead body (Exbt. 5) in presence of witnesses and also seized the nylon rope (with which hands and legs of the dead body was found tied), pant, shirt and a waist belt of the deceased by preparing a seizure list (Exbt. 6) in presence of witnesses. He also forwarded the dead body to Panisagar Hospital for postmortem examination, with a dead body challan Since the dead body was highly decomposed and nobody appeared to claim it, after postmortem examination, the body was: buried near Panisagar Hospital Morgue. 3.4. On 28.10.2006 at 05-25 hours, S.I. Sanjib Laskar of Dharmanagar P.S. (P.W. 8) in connection with Dharmanagar P.S. G.D. Entry No. 1403 dated 27.10.2006 and 1414 dated 28.10.2006 seized a steel colour Maruti Suzuki Van with a number plate TR02-A-0176 from the house complex of one Nishi Malakar, S/o. Narendra Malakar of Dewanpasa, P.S. Dharmanagar by preparing seizure list (Exbt. 2) in presence of PWs 2 and 3. 2) in presence of PWs 2 and 3. Signature of accused appellant Sibu alias Bappa was also obtained in the seizure list and it was noted on the body of the seizure list that the actual registration No. of the seized vehicle was AS 11 -B-5586 and that accused Sibu Das confessed that he had murdered the driver of the vehicle and thereafter stolen it and changed the number plate. On the same day in connection with same GD. entries at 04-30 hours, S.I. Laskar (P.W. 8) of Dharmanagar P.S. seized one double seater seat of Maruti Van from the house of accused Sibu Das of village Baruakandi, P.S. Dharmanagar by preparing a seizure list (Exbt. 3) in presence of P.Ws 4 and 6 alleging that it was the seat of vehicle No. AS 11 -B-5586. 3.5. On 28.10.2006, Ainul Haque (P.W. 14) and Suhabuddin (P.W.16) with the help and assistance of Police of Patharkandi P.S. arrived at PNS PS and on seeing the seized pant, shirt and waist belt of the deceased, which were found with the dead body (Exbt. 2 series), identified that those pant, shirt and waist belt were of deceased Mainul Haque and that he was wearing those clothes and belt on the date of his missing. Dead body was disinterred from buried place in presence of P.W. 23 (Executive Magistrate) and on seeing the dead body, they identified it as of deceased Mainul Haque. Dead body was handed over to them and they again buried the dead body after observing their religious formalities. In the meantime, on 28.10.2006 itself, I.O. of the case got information from Dharmanagar P.S. that one Maruti Van and two persons were detained and on such information, I.O. along with O.C. of PNS PS went to Dharmanagar P.S. and interrogated the detained person Sibu Das alias Bappa who confessed before them about the theft of vehicle and murder of the driver Mainul Haque with the help of another Sanjit Das of Luaipua. I.O. arrested the accused Sibu Das alias Bappa and another Bijay Das alias Munna who were kept detained by the police at Dharmanagar P.S. and taken them to custody. Both the accused were forwarded to the court of SDJM, Dharmanagar and thereafter were taken to police custody for interrogation. 3.6. In course of investigation, I.O. (S.I. Dey) examined material witnesses and recorded their statements under Section 161, Cr. Both the accused were forwarded to the court of SDJM, Dharmanagar and thereafter were taken to police custody for interrogation. 3.6. In course of investigation, I.O. (S.I. Dey) examined material witnesses and recorded their statements under Section 161, Cr. P.C. On 28.10.2006 at about 08-05 hours he seized a number plate of vehicle bearing No. R02-A-6775 from Sristi Art Studio of Thana Road, Dharmanagar by preparing a seizure list (Exbt. 1) in presence of P.W. 1 alleging that it was the number plate re-written at the instance of the accused after erasing out the original number from the number plate. I.O. also collected the postmortem report and thereafter on his transfer he handed over the case diary to the O.C. of the P.S. who in turn handed over the investigation to S.I. Subhrangshu Bhattacharjee (P.W. 20), In course of his investigation, S.I. Bhattacharjee visited Luaipua, Patharkandi, Assam to find out the accused Sanjit Das but could not detect any such person namely Sanjit Das. Ultimately, on completion of investigation, he submitted charge sheet against accused Sibu Das alias Bappa for commission of offence under Sections 392/302 and 201 of IPC and also prayed for discharging the arrested accused Bijoy Das alias Munna. 3.7. Cognizance was taken on the basis of police report and in due course after commitment of the case, learned Additional Sessions Judge, framed charges against accused Sibu Das alias Bappa for committing offence punishable under Sections 392/302 and 201 of IPC to which he pleaded not guilty and claimed to be tried. 3.8. Prosecution examined 23 witnesses namely:- P.W.1 Shri Bidhu Dhar P.W.2 Shri Sudip Kr. Purkayastha P.W.3 Shri Biju Malakar P.W.4 Smti Bindu Deb P.W.5 Shri Mintu Deb P.W.6 Shri Mintu Deb P.W.7 Shri Hiralal Paul P.W.8 Shri Sanjib Laskar P.W.9 Smti Thangchung Jui Halam P.W.10 Shri Rulaman Halam P.W.11 Md. Siraj Uddin P.W.12 Shri Amal Das P.W.13 Md. Abdul Matlib P.W.14 Md. Ainul Haque P.W.15 Md. Suheb Uddin P.W.16 Md. Jofrul Haque P.W.17 Selim Ahamed P.W.18 Shri Bijoy Debbarma P.W.19 Shri Maniklal Dey P.W.20 Shri Subhrangshu Bhattacharjee P.W.21 Shri Bhula Halam P.W.22 Dr. Sankar Das P.W.23 Shri Dibyendu Chakraborty Out of the above witnesses, PWs 14, 15 and 16 are the vital witnesses of the prosecution and they are residents of Kanai bazaar (Patharkandi), Assam. P.W. 14 is the elder brother of the deceased. Sankar Das P.W.23 Shri Dibyendu Chakraborty Out of the above witnesses, PWs 14, 15 and 16 are the vital witnesses of the prosecution and they are residents of Kanai bazaar (Patharkandi), Assam. P.W. 14 is the elder brother of the deceased. P.W. 15 is the owner of the alleged stolen vehicle and employer of the deceased. P.W. 16 is a driver by profession and according to the prosecution he is the only witness who had seen the accused appellant hiring the vehicle of the deceased, P.W. 8 is the S.I. of Dharmanagar P.S. who has seized the impugned stolen Maruti Van vehicle from the house of Nishi Malakar by preparing seizure list in presence of P.Ws. 2 and 3 and he has also seized the alleged seat of Maruti Vehicle from the house of accused in presence of P.Ws. 4 and 6. P.W. 1 is a witness to the seizure of number plate seized by the I.O. (P.W. 19). P.Ws. 9, 10, 11, 12 and 13 are the witnesses to the inquest report, prepared over the dead body and the seizure of nylon rope and wearing apparels of the deceased (Exbt. ii series). P.W. 17 was the companion of P.W. 15 at the time of seizure of documents of the seized vehicle. P.W. 18 is the Motor Vehicle Inspector who examined the seized vehicle. P.Ws. 19 and 20 are the police officers of PNS PS who investigated the case. P.W. 21 is the informant who lodged the FIR. P.W. 22 is the Medical Officer who conducted postmortem examination over the dead body. P.W. 23 is the Executive Magistrate who was present at the time of disinterring of the dead body from buried place. P.W. 7 is the O.C. of PNS PS who was present at the time of recovery of the dead body and registered the case on receipt of FIR from P.W. 21. 3.9. Prosecution also proved the seizure list and the seized documents namely the wearing apparels and the nylon rope found with the dead body which were marked as Exbt. II series. The number plate of the vehicle seized from Srishti Art Studio, marked as Exbt. I and photocopies of the documents of the vehicle in the name of P.W. 15 marked as Exbt. III series. II series. The number plate of the vehicle seized from Srishti Art Studio, marked as Exbt. I and photocopies of the documents of the vehicle in the name of P.W. 15 marked as Exbt. III series. Prosecution also proved the FIR, the Motor Vehicle Inspector's report and the verification report of the registration of the vehicle, hand sketch map and index of the place from where the dead body was recovered, postmortem report, dead body challan etc. 3.10 After closure of the prosecution evidence, accused appellant was examined under Section 313, Cr. P.C. and thereafter in his turn accused declined to adduce any defence evidence. Defence case is nothing but denial of the prosecution case. 3.11 At the conclusion of trial, learned Additional Sessions Judge found the accused appellant guilty of the charges and sentenced him as aforesaid. Hence this appeal. 4. Learned counsel, Mr. R. Dutta appearing for the accused appellant has submitted that the instant case is based on circumstantial evidence. The prosecution has failed to prove the chain of circumstances, yet the court below while failed to appreciate the evidence on record in its right perspective, arrived at a wrong and perverse finding and held the accused guilty of the charges framed against him. He, therefore, prayed for setting aside the judgment and order of conviction and sentence. 5. Learned P.P. on the other hand, has submitted that if P.W. 16 is believed, the chain of circumstances starts from the point that accused hired the vehicle from the deceased at Kanaibazar. The vehicle was seized from the house of Nishi Malakar, father-in-law of the accused and it has been proved that the vehicle belonged to P.W. 15 in which the deceased was the driver. The chain of circumstances, therefore, completes and indicates to the guilt of the accused and it is inconsistent with his plea of innocence. Learned P.P. therefore, prayed for maintaining the judgment and order of conviction and sentence. 6. We have meticulously gone through the evidence and materials on record and the impugned judgment passed by the court below. 7. Law is quite settled that the principal fact or factum probandum may be proved by direct evidence or indirectly by means of certain inferences drawn from factum probans that is, the evidentiary facts. 6. We have meticulously gone through the evidence and materials on record and the impugned judgment passed by the court below. 7. Law is quite settled that the principal fact or factum probandum may be proved by direct evidence or indirectly by means of certain inferences drawn from factum probans that is, the evidentiary facts. Circumstantial evidence means communication of facts creating a network from which there is no escape for the accused because the facts taken as a whole do not admit of any inference except the guilt of the accused. The circumstances from which a conclusion is drawn should be fully proved. The circumstances should be conclusive in nature. All the facts so established should be consistent with the hypothesis of guilt and inconsistent with the plea of innocence of the accused. The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than that of the accused. In the case of Chauna Orang vs. State of Assam reported in 1981 Cr. L.J. 1661 this court has observed certain principles governing admissibility and use of circumstantial evidence, thus:- (i) facts for a legal inference must be clearly proved and indubitably connected with the factum probandum,(ii) burden is on party asserting existence of fact, (iii) best evidence to be adduced, (iv) inculpatory fact must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis, (v) acquittal in case of reasonable doubt. 8. Prosecution case is based on the following circumstances on which evidence has been adduced:- (i) On 21.10.2006 the day of Kali-puja, the deceased Mainul Haque, driver of Maruti Van vehicle No. AS 11 B-5586, belonged to P.W. 15, took the vehicle from the house of the owner and went to Asimganj Motorstand at Kanaibazar as a matter of routine for giving trip. The accused hired the vehicle of Mainul Haque for a journey to Luaipua. (ii) The vehicle was seized on 28.10.2006 at 05-25 hours from the house of Nishi Malakar (father-in law of the accused appellant) of Dewanpasa, P.S. Dharmanagar and the accused was present at the time of seizure. (iii) A double seater back seat of a Maruti Vehicle was also seized from the house of the accused. (iv) A number plate of Vehicle bearing No. R02-A-6775 was seized from Srishti Art Studio, Dharmanagar, Thana Road which was written erasing some earlier number. 9. (iii) A double seater back seat of a Maruti Vehicle was also seized from the house of the accused. (iv) A number plate of Vehicle bearing No. R02-A-6775 was seized from Srishti Art Studio, Dharmanagar, Thana Road which was written erasing some earlier number. 9. This is a case of robbery and murder. It is a settled law that where punishment prescribed for the offence alleged is severe, standard of care must be high and strict in respect of the evidence in such case. It is further settled that standard of proof should be commensurate with the gravity of the crime. In the case of State of U.P. vs. Harimohan & other reported in (2000) 8 SCC 598 , the Apex Court in a case based on circumstantial evidence has laid down the principles to be followed while appreciating the evidence in such cases thus:- Admittedly, there is no direct evidence connecting any of the accused with the commission of the crime. The case of the prosecution is based upon circumstantial evidence. It is often said that witnesses may lie but the circumstances cannot. To convict a person on the basis of circumstantial evidence all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused. Medical evidence in such a case may be an important circumstance giving assurance to the existence of the other circumstances alleged against the culprit. This court has consistently held that when the evidence against the accused, particularly when he is charged with grave offence like murder consists of only circumstances, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of facts and circumstances. 10. Let us now see how far the prosecution has been able to prove the case against the accused. 10. Let us now see how far the prosecution has been able to prove the case against the accused. It is proved with overwhelming evidence that dead body of Mainul Haque was found with hands and legs tied with rope at Bhalukcherra near culvert and burning-ghat by the side of Damcherra road in the jungle and he died a homicidal death, Exbt. 13, the postmortem report and the evidence of P.W. 22 made it clear that death of the deceased was due to mechanical asphyxia as a result of strangulation. 10.1. It is also proved with overwhelming evidence on record that the deceased Mainul Haque was a driver by profession and he was engaged by P.W. 15 as a driver of Maruti Van vehicle No. AS 11B-5586 and on 21.10.2006 in the morning the deceased went out with the vehicle as a matter of routine and went to Asimganj Motorstand, Kanaibazar for giving trips. 10.2. P.W. 16 is the only witness, so far the prosecution has examined, to prove the fact that the accused hired the vehicle of Mainul Haque from Asimganj Motorstand at Kanaibazar for a trip to Luaipua. P.W. 16 in his deposition stated that he knew Mainul Haque as he was also a driver of vehicle plying from Asimganj Motorstand at Kanaibazar. On the day of Kali-puja at about 6/7 p.m. the deceased went out with a trip to Luaipua from Kanaibazar. He has also stated that at the relevant point of time he was waiting with his Maruti Alto car No. AS 10-9316 and at that time a person went to him to hire his vehicle and he demanded Rs. 500/- but the person proposed to pay Rs. 300/- to which he did not agree. Thereafter, he found that person approached Mainul Haque and hired his Maruti Van vehicle. That person who hired the vehicle was not known to him by name but by face he would be able to identify since he saw him during conversation. He identified the accused Sibu Das in the dock as the person who approached him for hiring his vehicle offering Rs. 300/-. 10.3. That person who hired the vehicle was not known to him by name but by face he would be able to identify since he saw him during conversation. He identified the accused Sibu Das in the dock as the person who approached him for hiring his vehicle offering Rs. 300/-. 10.3. P.W. 15 stated that when Mainul Haque did not return with vehicle on 21.10.2006, on the following day he along with P.W. 14 went to Asimganj Motorstand at Kanaibazar and at that time, Jafrul Haque (P.W. 16) told him that Mainul bad gone with a trip to Luaipua towards Tripura on a reserve trip. P.W. 15 stated nothing else to corroborate P.W. 16 that the person who hired the vehicle of Mainul had earlier approached him (P.W. 16) for hiring his vehicle and thereafter he went to Mainul and hired the Maruti Van vehicle of Mainul. P.Ws. 14 and 15, though stated that they went together to enquire about Mainul at Asimganj Motorstand, Kanaibazar, but P.W. 14 stated nothing of the fact what has been stated by P.W. 16. Therefore, the statement made by P.W. 16 that a person approached him at first for hiring his vehicle and when he did not agree the person went to Mainul and hired his vehicle has not been corroborated by any other item of evidence on record. If P.W. 16 was so approached by the person who hired the vehicle of Mainul, he would disclose the fact to P.Ws. 14 and 15 but he never disclosed any such fact to them. He (P.W. 16) also did not disclose anything describing the person of his age, height, figure, complexion etc. to draw an inference that he had carefully noticed that person. 10.4. Admittedly, the accused was totally unknown to P.W. 16. According to him for the first time he saw him at Kanaibazar when the accused approached for hiring his vehicle. Subsequently, he came to Tripura and he found the accused in police custody of PNS PS. In his cross examination, he stated:- On the date of recovery of the Van, I was not present and I did not come with the owner of the Van. After 6/7 days of missing of the deceased, I saw the accused at PNS PS. It shows police arranged the witness to see the accused in the police custody. In his cross examination, he stated:- On the date of recovery of the Van, I was not present and I did not come with the owner of the Van. After 6/7 days of missing of the deceased, I saw the accused at PNS PS. It shows police arranged the witness to see the accused in the police custody. It was the duty of the I.O. to arrange a T.I. parade of the accused by the witness to ascertain as to whether the witness actually found the accused or not at Kanaibazar to hire the vehicle of the deceased. While having such scope to arrange a T.I. parade, the investigating agency did not do so. Therefore, identification of the accused by the witness before the court, in the absence of any other supporting evidence does not inspire confidence, particularly in the circumstances that the witness being a driver in the Motorstand alleged to have seen the accused only once as a passenger in the evening time. 10.5. There is also no other evidence led by the prosecution to show that the accused had visited Kanaibazar, Assam from Tripura at the relevant point of time for any purpose whatsoever to substantiate the case that the accused hired the vehicle of Mainul Haque. The statement of P.W. 16 that he had seen the accused to hire the vehicle of Mainul, in the absence of any other evidence on record, cannot be solely relied on to record an aggravating circumstance against the accused. 11. The next important piece of evidence which the prosecution relied is the recovery and/or seizure of Maruti Van vehicle with the fake registration number plate TR 02-A-0167 from the house of Nishi Malakar of Dewanpasa. It is the case of the prosecution that Nishi Malakar is the father-in-law of the accused appellant The accused appellant is a resident of Baruakandi under Dharmanagar P.S. Admittedly, Dewanpasa, the house of Nishi Malakar and Baruakandi, the house of accused appellant are in different villages. Distance between these two villages has not been brought on record. Seizure of the Maruti Van vehicle from the house of Nishi Malakar has been proved by the oral evidence of P.Ws. 2, 3 and the seizing officer, P.W. 8. On careful examination of the seizure list which is marked as Exbt. Distance between these two villages has not been brought on record. Seizure of the Maruti Van vehicle from the house of Nishi Malakar has been proved by the oral evidence of P.Ws. 2, 3 and the seizing officer, P.W. 8. On careful examination of the seizure list which is marked as Exbt. 2, we find that it was prepared by P.W. 8 on 28.10.2006 at 05-25 hours in the house of Nishi Malakar. Neither Nishi Malakar nor any person from the house of Nishi Malakar has been examined as a witness to prove that the vehicle was brought to the house of Nishi Malakar by the accused. The vehicle subsequently has been released on bail to the custody of P.W. 15. According to prosecution the original number plate of the vehicle was changed with a fake number plate of TR 02-A0176 Signature of accused was also obtained in the seizure list of the vehicle and admittedly at that point of time the accused was not arrested in connection with the case. Signature of the accused in the seizure list has been proved as Exbt. 2/4 by the I.O. P.Ws. 2 and 3 made categorical statement that the vehicle was seized from the house of Nishi Malakar and that accused is the son-in-law of Nishi Malakar. The rest of the statement made by the P.Ws. 2 and 3 are simply hearsay and carries no evidentiary value. There is nothing before us that the vehicle was seized at the instance of the accused to draw an inference of leading to discovery of the fact at the instance of the accused. 11.1. P.W. 8, the seizing officer of the vehicle stated that as per requisition received from G.C., PNS P.S., he seized the vehicle from the house complex of Nishi Malakar at Dewanpasa from the possession of accused Sibu Das alias Bappa Das. But in the seizure list, he has clearly mentioned that the vehicle was seized from the house complex of Nishi Malakar and mere is nothing that it was seized from the possession of the accused. He has simply recorded that the accused made a confession before him that he brought the vehicle after murdering the driver and changed the number plate. Such Statement is not admissible in evidence. He has simply recorded that the accused made a confession before him that he brought the vehicle after murdering the driver and changed the number plate. Such Statement is not admissible in evidence. Though P.W. 8 stated that he seized the vehicle on requisition from O.C., PNS P.S., but O.C., PNS P.S. (P.W. 7) stated nothing that he gave any requisition to Dharmanagar P.S. for seizure of any vehicle. There is not even a whisper in the evidence of P.W. 7 about any such requisition for seizure of the vehicle at Dharmanagar from the house of Nishi Malakar. P.W. 19, the I.O. of the case has stated:- In the meantime, we got information from Dharmanagar P.S. that one Maruti Van and two persons were detained. Then myself and the O.C. of the P.S. came to Dharmanagar P.S. It shows that no requisition was given by I.O. to Dharmanagar P.S. about seizure of any such vehicle. The O.C., PNS PS (P.W. 7) stated nothing that he accompanied I.O. to Dharmanagar P.S. whereas P.W. 19, the I.O. stated that O.C. accompanied him when he went to Dharmanagar P.S. and arrested the accused persons from Dharmanagar P.S. These are material contradictions in the statement of police officers of Dharmanagar P.S. and PNS PS in respect of alleged recovery of the vehicle. 11.2. The seizure list of vehicle shows that in connection with Dharmanagar P.S. G.D. Entry No. 1403 dated 27.10.2006 and No. 1414 dated 28.10.2006 the vehicle was seized. No copy of those G.D. placed in the evidence on record. There is no iota of evidence as to who found the car in the house of Nishi Malakar? Who informed Dharmanagar P.S. about it? What was the basis of those G.D. entries in connection with which the vehicle and the seat were seized. Prosecution kept it a mystery as to what was in those GD. entry of Dharmanagar P.S. on the basis of which P.W. 8 went to the house of Nishi Malakar and seized the vehicle. It is abundantly clear that the vehicle was not seized by P.W. 8 at the instance of PNS PS and it was not seized from the custody of the accused appellant. There is also no evidence on record to show that the accused brought the vehicle and kept it in the house of Nishi Malakar, his father-in-law. It is abundantly clear that the vehicle was not seized by P.W. 8 at the instance of PNS PS and it was not seized from the custody of the accused appellant. There is also no evidence on record to show that the accused brought the vehicle and kept it in the house of Nishi Malakar, his father-in-law. P.W. 3 stated that he happens to be the nephew of Nishi Malakar but there is nothing in his deposition also that he was resident of the same house or that he has found the accused to bring the vehicle in that house. Since it is a case based on circumstantial evidence prosecution was supposed to lead convincing evidence to prove that the accused brought the vehicle and kept it there and at his instance the vehicle was recovered from the house of Nishi Malakar. This circumstance, therefore, cannot be applied against the accused as an incriminating circumstance to record an order of conviction. 12. P.W. 8 also seized a seat (double seater) of Maruti vehicle from the house of accused in presence of P.Ws. 4 and 6. It is the claim of the prosecution that it was the seat of robbed Maruti vehicle No. AS 11 B - 5586. The seizure list is proved as Exbt. 3. P.W. 8 prepared the seizure list in presence of P.Ws. 4 and 6 on 28.10.2006 at 04-30 hours which means the seat was seized before seizure of the Van vehicle. As already indicated above, the-Van vehicle was seized at 05-25 hours. There is no mention in the seizure list of Van vehicle i.e. Exbt. 2 that the back seat of the vehicle was not available when the vehicle was seized from the house complex of Nishi Malakar. Neither P.W. 8 nor P.Ws. 2 and 3 who are the witnesses to the seizure of the Van vehicle stated anything that the vehicle while seized was not having with its back seat and that the seat which was seized from the house of the accused was the seat of that seized vehicle. Further, P.W. 4 stated that on 28.10.2006 at about 4-30 p.m. seat cover of one Maruti Van bearing No. AS 11 B-5586 was seized from the house of the accused whereas the seizure list was prepared on 28.10.2006 at 04-30 hours for a double seater Maruti seat and not seat cover alone. Further, P.W. 4 stated that on 28.10.2006 at about 4-30 p.m. seat cover of one Maruti Van bearing No. AS 11 B-5586 was seized from the house of the accused whereas the seizure list was prepared on 28.10.2006 at 04-30 hours for a double seater Maruti seat and not seat cover alone. P.W. 6 stated that police seized a seat of Maruti Van from the house of the accused. Prosecution did not explain the contradictory version while the witnesses were in the witness box. For the reasons as already indicated above, it is difficult to believe that the seat of the Maruti vehicle alleged to have seized from the house of the accused, who is also a driver by profession, cannot be regarded as an incriminating circumstance against the accused for recording his conviction on the charges framed against him. 13. The last circumstance is the seizure of a number plate by I.O. (P.W. 19) from Srishti Art Studio of Thana road in presence of P.W. 1. Prosecution has failed to connect it as an incriminating material in any manner in respect of the charge framed against the accused. 14. Apparently on a superficial reading of the evidence on record, suspicion may appear in mind that the accused might be involved in the commission of the crime but on careful perusal of the evidence as discussed above, it is abundantly clear that prosecution case is absolutely short of legal and acceptable evidence to prove the charges framed against the accused and the accused is therefore, entitled to get benefit of doubt. It is the settled law that suspicion whatever strong may be, cannot take the place of proof. The Supreme Court in the case of Dasari Siva Prasad Reddy vs. Public Prosecutor, High Court of A.P. reported in (2004) 11 SCC 282 has observed in a case of circumstantial evidence that a strong suspicion, no doubt exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. 15. In view of the discussions made above, we find merit in the appeal and it is accordingly allowed. 16. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Dharmanagar is set aside. 17. The appellant be set at liberty at once if not connected in any other case. 18. 15. In view of the discussions made above, we find merit in the appeal and it is accordingly allowed. 16. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Dharmanagar is set aside. 17. The appellant be set at liberty at once if not connected in any other case. 18. The instant appeal is accordingly disposed of. Send back the L.C. records along with a copy of this judgment.