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2013 DIGILAW 150 (GAU)

Manik Debnath v. State of Tripura

2013-03-05

SUBHASIS TALAPATRA, UTPALENDU BIKAS SAHA

body2013
JUDGMENT Subhasis Talapatra, J. 1. This is an appeal by the convict under Section 374 of the Code of Criminal Procedure against the judgment and order of conviction and sentence dated 09.06.2006 passed by the Sessions Judge, South Tripura, Udaipur in Case No. ST. 77(ST/S) of 2005. The convict has been sentenced by the impugned judgment and order dated 9.6.2006 to suffer rigorous imprisonment for life with a fine of Rs. 2000/- in default, to suffer further imprisonment for one year under Section 302 IPC. The brief fact as may be essential for appreciating the appeal be noted at the outset. One ejahar stating that at about 5 0' clock in the morning on 13.05.2005 the informant, Manindra Debnath (PW-1) was called by Manik Debnath, his elder brother and stated that he had killed their mother Charubala Debi by hacking her with a dao (sharp cutting weapon). In the ejahar it has been stated that Manik Debnath told the same thing to his wife and daughter going in front of his hut. In the preceding night as he did not return to his hut, his wife and daughter fell asleep. Occasionally, Manik Debnath used to come late home at night and sleep in their mother's hut. It is stated that immediately they rushed to their mother's hut and saw their mother's blood smeared body lying with the head severed from the body. Then they raised alarm and the people from the locality rushed in. Their mother was 75 years of age. It reveals that the said FIR was received by the police officer in the place of occurrence as the Manubazar Police Station was informed of the incident over phone by one person from the locality and on the basis of the said ejahar Manubazar P.S. Case No. 18 of 2005 under Section 302 of the IPC was registered on 13.05.2005 whereas the occurrence took place between 00.00 hours to 05.00 hours of 12/13.05.2005. Immediately, the investigation was entrusted with Sri Subrata Debnath (PW-11) one Sub-Inspector of Police of Manubazar Police Station who after completion the investigation submitted the charge sheet against the appellant under Section 302 of the IPC. On taking cognizance the case was committed to the Court of the Sessions Judge, South Tripura, Udaipur for trial as the offence was exclusively friable by the Court of Sessions. On taking cognizance the case was committed to the Court of the Sessions Judge, South Tripura, Udaipur for trial as the offence was exclusively friable by the Court of Sessions. The Sessions Judge, South Tripura, Udaipur framed the charge under Section 302 of the IPC against the appellant to which he pleaded not guilty and claimed to be tried. To substantiate the charge, the prosecution examined as a many as 12 witnesses including the Investigating Officer (PW-12), the informant (PW-1), the Doctor (PW-5) who conducted the post mortem, the forensic scientist (PW-9) and some independent witnesses from the neighbourhood, who hearing hue and cry rushed to the place of occurrence even before the police reached the place. On appreciation of the evidence so led the Sessions Judge, South Tripura, Udaipur returned the finding of the conviction under Section 302 of the IPC, the legality of which is under challenge in this appeal. 2. To appreciate the challenge, it is required that the entire evidences is re-visited. It transpires that, the PW-1 the informant did not support the statement made in the ejahar (Exbt.9) but he stated that the appellant, his elder brother was living with his mother in the same house with his wife and daughter. He woke-up from bed on hearing shouting of the appellant and rushed there and found that the Pradhan (the village head) tied up Manik Debnath with a tree in the mother's house. While he entered into the hut of his mother her head was found separated from the body and he heard that the appellant killed his mother by hacking. He disclosed that he heard the said incident from Santosh Debnath and Abhilash Debnath. However, he categorically stated that he had knowledge that the appellant was sleeping in the hut of his mother and he heard it from the appellant's wife. Thereafter the appellant was taken by the police. He further stated in the Court that the appellant had a shirt and dhuti in his wearing and the said shirt and dhuti were stained with blood. He got the FIR written by one Chandan Debnath (PW-6) and having satisfied that the ejahar had been written properly as per his saying he signed over it He identified the FIR and his signature. He was witness to seizure of the tin, one dhuti and one towel and he signed on the seizure list (Exbt. He got the FIR written by one Chandan Debnath (PW-6) and having satisfied that the ejahar had been written properly as per his saying he signed over it He identified the FIR and his signature. He was witness to seizure of the tin, one dhuti and one towel and he signed on the seizure list (Exbt. 2) and he admitted the seizure list in the evidence. He stated that head of his mother was found inside the tin and the head was wrapped with the towel. He identified those materials as Exbts. M.O.-1, 2 and 3. However, in the cross-examination, he baldly stated that he did not see who killed his mother and denied that the appellant was suffering from unsoundness of mind. However, he stated that he found the room ransacked. He also stated that the appellant's wife maintained an illicit relation with another person but the said statement did not find place in the previous statement as recorded under Section 161 of the Cr.P.C. The said statement was admitted and marked as Exbt. A, subject to confirmation by the Police officer, not following the prescription of law. 3. Shri Santosh Debnath (PW-2) whose name has been referred in the deposition of the PW-1 is the key witness to tear the circumstances to unveil the truth. He has been referred to as the Pradhan of the Village. He stated that on hearing the hue and cry on 13.05.2005 from the house of the appellant which was situated nearby and having stated so by some other persons he rushed to the house' of the appellant and found that the appellant was moving to and fro in his house with a cane in his hand and was uttering some words not properly intelligible. He had a shirt in his wearing which was stained with blood. His face was also stained with blood. I asked him as to why the blood stained were there and as to why he was moving to and fro in the house. Without giving reply to my question he took a tin from the hut of his mother and started going out. At this I had a doubt in my mind. Myself and one Nikhil Debnath caught him and tied him with a 'Atafal tree' which was in the house. Without giving reply to my question he took a tin from the hut of his mother and started going out. At this I had a doubt in my mind. Myself and one Nikhil Debnath caught him and tied him with a 'Atafal tree' which was in the house. I saw the tin where I found severed head of my mother wrapped with a towel and kept inside the tin. He further stated that he asked one Tamal to inform the police over phone. They entered into the hut when the police arrived and they found the dead body of the appellant's mother lying beheaded on the floor. The neck was covered with a photo frame. A dao (a sharp cutting weapon) was found near the body. The police officer took the sample of blood from the face of the accused, from the earth and from the dao. The police prepared a seizure list thereafter where he put his signature as the witness. He identified his signature and the seizure list as Exbt. 4 and 4(1). He was also witness to the inquest report Exbt. 3, the dao, one full slim shirt, one ganji from the place of occurrence. He also identified the seizure list of these materials. He also identified Exbt. MO-4, MO-5 and MO-6. He denied the suggestion that it was a mere assumption the appellant killed his mother. He categorically stated that the entire circumstances demonstrated that the appellant killed his mother. He further stated that after talking to the wife of the appellant he found that on the night of the occurrence, the appellant was sleeping with his mother in the same hut However, the statement about talking to the appellant's wife was not found in the previous statement as recorded under Section 161 of the Cr.P.C. He also stated that he did not see who killed the appellant's mother as he was not present at the time of occurrence but he categorically stated that the appellant was physically and mentally sound and he was discharging all works for leading life. 4. 4. The PW-3, Sri Abilash Debnath, an independent witness from the neighbourhood corroborated the PW-2 by stating that he informed the Pradhan (PW-2) and some other persons and when they arrived in the place of occurrence they found the appellant was going out from the house with a tin in his hand and when the PW-2 inquired about the tin and what contained therein, a severed human head was found inside wrapped with a towel. He also stated that the appellant's face and wearing clothes were blood stained. They found that the severed human head was of the appellant's mother. They then entered into the hut of his mother and found the dead body was lying there without head. The appellant was tied with a tree in his house and to their understanding, the appellant killed his mother as his face and wearing clothes were smeared with blood. He stated that demeanour of the appellant indicated to his guilt in the cross-examination he stated that though he was temperamental but he was not a mad. He corroborated that the police officer collected the sample of blood from the face of the appellant but he could not know from where the other sample of blood were collected. However, he denied the suggestion that the appellant was tilting the body of his mother and as a result there was a blood stain on his face and his clothes. He also denied that he did not find the wife and daughter of the appellant at the place of occurrence. 5. The PW-4, Smti Sefali Debnath, the wife of the appellant deposed in the Court that on the previous night appellant went to the shop in the evening but he did not return till they slept. They thought that whenever he would come he would wake them up but the appellant did not call them during the whole night It was his habit coming late and to sleep with his mother. In the early morning, the appellant was knocking their door and shouting but they did not come out as on the previous morning, her husband assaulted her. After sometimes, the people arrived and her husband (the appellant) was tied with a tree. Then she came out from the hut. In the early morning, the appellant was knocking their door and shouting but they did not come out as on the previous morning, her husband assaulted her. After sometimes, the people arrived and her husband (the appellant) was tied with a tree. Then she came out from the hut. She also confirmed that she found appellant's face and clothes were stained with blood and her mother-in-law's body was found in her room but without her head. The severed head was found inside a tin. Thereafter the police on preparing necessary papers took the dead body out of their house and also taken the appellant with them. She stated that she did not see who killed her mother-in-law. 6. Dr. Jayanta Kr. Bhowmik, who conducted post mortem was examined as the PW-5. He stated that on examination it was found that (1) separated head from trunk at the base of neck, edge of wound sharp (2) abrasion over fore-head, (3) Over trunk fracture of right clavicle and 2nd 3rd and 4th ribs recreated injury over sternum and (4) multiple skin tag over margin of injury. According to him the cause of death is cardio-respiratory failure for haemorrhage for complete cut of neck, which is homicidal in nature. However, he stated that the death occurred "within 18 hours of post mortem examination" which was done within a time spell of 1.15 to 2.45 pm on 13.05.2005. He identified the post mortem report (Exbt. 6) and signature thereon. When he was shown the dao and asked whether the said cut could be possible by the weapon of the assault he confirmed it. 7. The PW-6, Chandan Debnath also corroborated that he found the appellant tied in the Atafal tree in his house. He also found the head of Charubala inside a tin wrapped with a towel and the body was lying inside the hut He was also the seizure witness and he identified the seizure list (Exbt. 2). He admitted the seizure list (Exbt. 5) with his signature thereon. He admitted that he wrote the ejaher as per the statement of the PW-1. He stated that one police officer came at about 6 a.m. however, he stated he did not see who killed the mother of the appellant. 8. The PW-7, Nikhil Debnath who according to the PW-2 helped him to tie the appellant with the tree. He admitted that he wrote the ejaher as per the statement of the PW-1. He stated that one police officer came at about 6 a.m. however, he stated he did not see who killed the mother of the appellant. 8. The PW-7, Nikhil Debnath who according to the PW-2 helped him to tie the appellant with the tree. But the said witness was tendered by the prosecution and no cross-examination of the PW-7 was carried out by the defence. 9. The PW-8 namely, Ashok Dutta a neighbourhood witness who appeared in the place of occurrence on hearing hue and cry in the early morning on 13.05.2005 and found the appellant tied with a tree in his house and the severed head of Charubala inside the tin wrapped with a towel. He stated on the Court that he peeped into the hut and saw the body of Charubala was lying in the floor. He corroborated the PW-2 and other witnesses by stating that he found blood stain on the wearing shirt, ganji and face of the appellant. He was also the seizure witness and identified the seizure list, Exbt. 3 and Exbt. 4. 10. Dr. Subhankar Nath was examined as the PW-9 who confirmed that on receipt of some articles through police in connection with Manubazar P.S. Case No. 18 of 2005 he carried out the necessary scientific examination as per requisition and he found that blood stain were detected in all the articles namely, (1) a piece of gauge cloth bearing brown stain said to contain blood collected from the cut neck of the deceased, (2) small gauge cloth pieces bearing brown stain said to contain blood collected from the face of suspected by rubbing, (3) a piece of gauge cloth bearing dark stain said to contain blood collected from the weapon of offence, (4) a hand dao said to be the weapon of offence bearing some stain and suspected to have finger print on it collected from place of occurrence and (5) one sky colour T-shirt of suspect bearing dark brown stain at large areas were human blood of group 'O'. There was a requisition from the police to examine and find out whether there was any finger print on the dao or on its handle. There was a requisition from the police to examine and find out whether there was any finger print on the dao or on its handle. Accordingly, that was referred to the finger print expert Babulal Debnath (PW-10) who had examined the dao and made his opinion that no chance finger print was available in the said exhibit "The sample of finger print was also sent to him but he could not compare because no finger print was available on the dao. He identified that report (Exbt.7) and the report of the finger print expert as Exbt. 8. He explained that: I got the dao wrapped with paper so closely which could generally damage the finger print on the article. The second chance is the dao was washed to remove the finger print before pending it to the expert. 11. The PW-10 namely, Babulal Debnath was the finger print expert. He stated that he could not figure out any finger print on the dao which was sent to him for examination. He confirmed the Exbt. 8. 12. The PW-11, the Investigating Officer stated how he conducted the investigation. After the case having endorsed to him he visited the place of occurrence and prepared the hand-sketched map with index (Exbt. 10). He also prepared the inquest report (Exbt. 3) and seized some articles, such as, one hand-dao, one full sleeve shirt and ganji by preparing the seizure list (Exbt. 5). He identified those materials. He also identified Exbt. 4 seizure list as a whole. He stated that he had also seized one tin, one old torn blood stained dhuti and one towel from the Manubazar police complex. The seizure list of those articles (Exbt. 2) was identified by him. He stated that he completed the substantial part of the investigation and waited for the report from the forensic science laboratory, but before he could file the charge sheet he was transferred. He corroborated that he found the appellant tied with a tree at his courtyard. He confirmed the Exbt. Abut denied the suggestion that the appellant was insane. But he denied he did not examine the PW-4 or that she was stating that her husband was mad. He denied the suggestion that by the seized-dao the injury cannot be done. 13. He corroborated that he found the appellant tied with a tree at his courtyard. He confirmed the Exbt. Abut denied the suggestion that the appellant was insane. But he denied he did not examine the PW-4 or that she was stating that her husband was mad. He denied the suggestion that by the seized-dao the injury cannot be done. 13. The PW-12 namely, Firoj Miah, a Sub-inspector of Police who filed the charge sheet on receipt of the forensic science laboratory report was also examined by the prosecution. 14. Mr. R. Dutta, learned counsel appearing for the appellant severely criticized the judgment of conviction as returned on purported appreciation of the evidence laid by the prosecution stating that no legal evidence would be found available therefrom. Moreover, to establish a chain of circumstantial evidence and to prove guilt of the accused the foremost requirement is to demolish all hypotheses of innocence of the accused. He quite vehemently submitted that no motive has been established or attributed to the appellant for killing his mother. He further submitted that the needle of suspicion as pointed to the appellant was on the basis of the written ejahar that the appellant made an extra-judicial confession to the PW-1, the PW-2 and the PW-4 but those witnesses did riot state of existence of such extra judicial confession while deposing in the Court He further argued that the presence of the appellant in the hut of the mother in the night of 12/13.05.2005 has not been established at all. If by the episodes his staying at his mother's hut at that night is not profoundly established, he cannot be connected with the offence or the circumstances cannot be turned against the appellant. Apart that, he indicated some flaws and missing-links in the evidence. He submitted that the prosecution did not make any endeavour to explain how the tin, dhoti and towel had been seized from the police station. He stated that PW 2 and 8 the seizure witnesses did not state that the blood sample was collected from the neck of the deceased. That was the only blood sample of the deceased which was compared with the blood stain available on the other articles. As such, the link between the blood stain as purportedly rubbed off from the face of the appellant and from his wearing apparels cannot be relevant to incriminate the appellant Mr. That was the only blood sample of the deceased which was compared with the blood stain available on the other articles. As such, the link between the blood stain as purportedly rubbed off from the face of the appellant and from his wearing apparels cannot be relevant to incriminate the appellant Mr. Dutta, further submitted that in the hand sketched map it has not been indicated from which place the said dao was seized even though where the tin was located that had been marked. There is no witness to the seizure of the tin from the place of occurrence. The PW-1 stated that he was witness of the seizure of the tin but from the seizure list it was found that the tin was seized from the police station. Mr. Dutta, further pointed out that there was no finger print on the dao as seized. Apart that he seriously questioned the way the examination under Section 313 of the Cr.P.C. was carried out. On referring to the question No. 4, 5 and 7 he contended that none of the witnesses stated anything to constitute such question and as such the judgment was premeditated. He also stated that at the time of examination under Section 313 of the Cr.P.C. the weapon that was referred by the prosecution in evidence was not shown to the appellant which is the requirement of law and which is a vital piece of evidence likely to be used against the appellant. 15. Mr. Dutta, learned counsel appearing for the appellant in support of his contention that unless the motive of offence is established by evidence, it cannot be stated that the circumstantial evidence has irresistibly been culminated to indicate the guilt of the accused on demolishing all hypothesis of innocence. He referred a decision of the Apex Court in Badam Singh Vs. State of Madhya Pradesh, as reported in AIR 2004 SC 26 where it has been enunciated as under: 20. We also find that there was no motive for the appellant to kill the deceased. Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case. In this case the brother of the deceased. Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case. In this case the brother of the deceased. PW-7 clearly stated that even though there was some dispute between the appellant and the deceased three years before the occurrence, that dispute was amicably settled and the disputed land was shared half and half by them. Thereafter they continued to cultivate their respective plots of land peacefully and no untoward incident took place whatsoever. We must, therefore, hold that the prosecution has failed to establish any motive for the offence. The fact that the deceased met a violent death is not surprising. He was a history sheeter and he was involved in large number of criminal offences including dacoity, robbery, abduction, kidnapping and attempt to murder etc. The possibility of his having been killed by one of his enemies cannot be ruled out. 16. Mr. Dutta in support of his contention that the examination under Section 313 of the Cr.P.C. is not mere ritualistic, it provides some assurance to the accused for providing the basis of his defence against the charge, referred another decision of the Apex Court in Ranvir Yadav Vs. State of Bihar, as reported in 2009 CRI L.J. 2962 where it held that: 4. The purpose of Section 313 of the Code is set out in its opening words- 'for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.' In Hate Singh, Bhagat Singh Vs. State of Madhya Pradesh: AIR 1953 SC 468 it has been laid down by Bose, J that the statements of accused persons recorded under Section 313 of the Code 'are among the most important matters to be considered at the trial'. It was pointed out that the statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 5. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 6. The word 'generally' in Sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 7. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 17. Mr. Dutta while referring a decision of this Court in Sujit Rudra Paul Vs. State of Tripura, as reported in 2009 CRI L.J. 3291 submitted that the circumstances based on which the trial Court held the case to be of conclusive circumstantial evidence is not put to the accused in the examination under Section 313 Cr.P.C. such circumstances cannot be used against him. In Sujit Rudra Paul (supra) it is held: 23. As regards the statement of the accused appellant under Section 313, Cr. P. C, the learned Additional Sessions Judge has held that both the accused persons failed to offer any kind of explanation regarding death of the deceased. We have carefully gone through the statement of the accused appellant made under Section 313, Cr.P.C. and what we find is that the accused appellant was never informed of the circumstances appearing against him. The circumstances based on which the learned Trial Judge has held the case to be a case of conclusive circumstantial evidence were not put to the accused appellant in his statement under Section 313, Cr.P.C. The accused appellant did not have any chance to explain them. The Apex Court in the case of Hate Singh Bhagat Singh v. State of M.P. reported in AIR 1953 SC 468 held that any circumstance in respect of which an accused was not examined under Section 343 of the then Cr.P.C. cannot be used against him. The Apex Court in the case of Hate Singh Bhagat Singh v. State of M.P. reported in AIR 1953 SC 468 held that any circumstance in respect of which an accused was not examined under Section 343 of the then Cr.P.C. cannot be used against him. Since then, there is a catena of authorities of the Apex Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 of the Old Cr.P.C. (corresponding to Section 313 of the Cr.P.C. 1973), the same cannot be used against them. 24. In the instant case, the prosecution made an attempt to show that the death of the victim was caused by strangulation. The prosecution in a case of commission of murder by strangulation must bring in record, some evidence linking the accused therewith. Although, the P.W. 9 in his report stated about the finger mark on the neck of the victim, but the same has not been identified to be that of the accused appellant. No fingerprint of the accused appellant was taken to show that it was he who had committed the murder. No incriminating evidence linking the accused appellant in regard to strangulation has been brought on record. A finding of guilt cannot be based on a presumption. Before arriving at an inference that the appellant has committed the offence, existence of materials therefore ought to have been found. The prosecution did not bring on record any material to show that the deceased had put up any resistance when the appellant had allegedly tried to commit the crime. There was no evidence of any mark of struggle by and between the deceased and the accused. 25. As has been held by the Apex Court in Vinay D. Nagar v. State of Rajasthan reported in where the evidence is of a circumstantial nature, circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and the facts, so established, should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. The circumstances should be of a conclusive nature and they should be such as to exclude hypothesis than the one proposed to be proved. In other words, there must be chain of evidence so 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. 26. The learned trial Court has based the conviction on the basis of the evidence of the P.W. 1, P.W. 2 and P.W. 6, who are all interested and partisan witnesses. More significant is the conduct of the said prosecution witnesses. On the day of the alleged crime they did not suspect the appellant in any manner whatsoever. They also did not report to anyone about the alleged maltreatment meted out to the victim by her in-laws and the accused appellant. The fact that the deceased was last seen with the accused appellant should have been specifically disclosed in the FIR. Suspicion was raised about the involvement of the accused appellant along with his parents, much after the first FIR was lodged by the father of the accused appellant. In such a situation, it cannot be said to be a case where an offence is said to have been established on circumstantial evidence alone in which indisputably all the links in the chain must be found to be complete as has been held in Sharad Birdhichand Sarda: 1984 Cri LJ 1738 (supra). 18. Further reliance by Mr. Dutta appearing for the appellant was on the decision of this Court in Bijoy Majhi Vs. State of Assam, reported in 2012 (4) GLT 922 : (2012) 4 GLR 36 where it has been held that: Para 14 Appearance of the appellant with a dao, in the Police Station on the fateful day, cannot be sufficient substantive evidence to hold that he had killed the deceased. This circumstance cannot be the sole basis of conviction, without corroboration on material point. PW-2 in her statement clearly stated that she came out from her house, immediately after the incident and found the deceased lying in the injured condition. She made it clear that she did not see the appellant inflicting the injuries. Learned Trial Judge has observed that this witness (PW2), while giving statement under Section 164, Cr.P.C. implicated the appellant. PW-2 in her statement clearly stated that she came out from her house, immediately after the incident and found the deceased lying in the injured condition. She made it clear that she did not see the appellant inflicting the injuries. Learned Trial Judge has observed that this witness (PW2), while giving statement under Section 164, Cr.P.C. implicated the appellant. The said statement under Section 164, Cr.P.C. has neither been proved nor brought to the notice of PW2, i.e., the maker of the said statement. Law is well settled that statement, made under Section 164 Cr.P.C. is not a substantive evidence. Therefore, in our considered opinion, the learned Trial Judge, committed error by relying on the said statement, made under Section 164, Cr.P.C. which has been denied by PW2 herself. This reliance as it appears has been made to show unless the materials are brought in the evidence in strict compliance to the provisions of law, those cannot be relied by the prosecution to substantiate the charge. 19. Mr. Dutta, learned counsel appearing for the appellant further relied on a decision of the Apex Court in Shingara Singh Vs. State of Haryana & Ors., as reported in 2004 CRI LJ. 828 for nourishment of his submissions, as in Shingara Singh(supra) it has been held: 29. So far as the ladder is concerned, PW-5, Balbir Singh stated that the ladder was in the. same position when the Investigating Officer came to the place of occurrence but he could not explain why it was not shown in the site plan prepared by the police. Even PW-10 the Investigating officer had to admit that in the site plan the position of the ladder was not shown. These features of the prosecution case also support the conclusion reached by the trial Court that the occurrence must have taken place in a manner different than the one deposed to by the alleged eye witnesses. The evidence on record with regard to the existence of cots in the court-yard of Gurdeep Singh, the existence of a bicycle, as also about the existence of a ladder is rather unsatisfactory and creates a serious doubt as to whether the prosecution witnesses are telling the truth. The omission to show them in both the site plans cannot be attributed to a mere lapse on the part of the investigating agency. The omission to show them in both the site plans cannot be attributed to a mere lapse on the part of the investigating agency. In fact so far as the site plans are concerned, the case of the prosecution is that they were prepared in the presence of PW 5 and another witness and on their pointing. However, PW 5 denied that the plans were prepared in his presence. The other witness was not examined. The purpose of referring the Shingara Singh(supra) is obvious that the weapon of assault as stated to have been recovered from the place of the occurrence was not shown in the site map and as such the existence of the weapon of assault in place of occurrence cannot be placed above suspicion. 20. Mr. Dutta further referred to a decision of the Apex court in Varun Chaudhary Vs. State of Rajasthan, as reported in AIR 2011 SC 72 where the Apex Court held as under 14. They further submitted that even at the time when the accused were questioned by the Court under the provisions of Section 313 of the Code of Criminal Procedure, the weapon and the blood stained clothes had not been shown to the accused. They relied upon the judgment delivered by this Court in Mohd. Abdul Hafeez v. State of Andhra Pradesh: AIR 1983 SC 367 , to substantiate their case that the articles recovered must be shown to the accused during the trial or at the time when his statement under Section 313 of Cr.P.C. is recorded. 15. They further submitted that no motive was attributed against the accused. They fairly admitted that though motive is not important in each and every case, according to the learned Counsel, even if one relies upon the statement made by the son of the deceased, the deceased might have some enmity with persons dealing in scrap as the deceased had raided premises of some scrap dealers and due to the said fact, some threats had also been received by the deceased from persons dealing in scrap. The accused were neither dealers in scrap nor there was any evidence that at the behest of the scrap dealers, the accused had murdered the deceased. The accused were neither dealers in scrap nor there was any evidence that at the behest of the scrap dealers, the accused had murdered the deceased. According to the learned Counsel, in absence of any motive, in a case which is based only on circumstantial evidence, it would not be just and proper to convict the accused, especially when mere was no material to come to a conclusion that the accused had committed the offence. So as to substantiate the above submission, they relied on the Judgments delivered by this Court in Surinder Pal Jain v. Delhi Administration: 1993 Cri.L.J. 1871 : 1993 SCC (Crl.) 1096 and Tarseem Kumar v. Delhi Administration: 1994 Supp. (3) SCC 367, respectively. **** 21. In our opinion, so called recovery of knife and blood stained clothes would not help the prosecution. Recovery of the motor cycle can not be said to be proved because Bhanwar Singh, PW-9 admitted the fact that he had signed the recovery panchnama in the police station whereas another witness, Madan Lal, P.W.25 could not establish recovery of the knife as he was not present at the time and place from which the knife had been recovered. Moreover, the knife was never produced before the Court and was never shown to the accused and, therefore, in our opinion, the said evidence could not have been relied upon by the Courts below for passing the order of conviction. **** 23. It is also pertinent to note that the prosecution could not establish the purpose for which the deceased was murdered by the accused. Of course, it is not necessary that in every case motive of the accused should be proved. However, in the instant case, where there is no eye witness or where mere is no scientific evidence to connect the accused with the offence, in our opinion, the prosecution ought to have established that mere was some motive behind commission of the offence of murder of the deceased. It was the case of the prosecution that the deceased, an Income Tax Officer had raided the premises belonging to some scrap dealers and, therefore, he had received some threats from such scrap dealers. It is an admitted fact that the accused are not scrap dealers or mere is nothing to show that the accused had been engaged by scrap dealers to commit the offence. It is an admitted fact that the accused are not scrap dealers or mere is nothing to show that the accused had been engaged by scrap dealers to commit the offence. Thus, there was no motive behind the commission of the offence so for as the accused are concerned. In Varun Chaudhary (supra) the Apex Court enunciated that where there is no scientific evidence to connect the accused with the evidence, the prosecution ought to have established there was some motive behind commission of offence. 21. While refuting the submissions of Mr. R. Dutta, learned counsel appearing for the appellant, Mr. D. Sarkar, learned Public Prosecutor, Tripura referring to the statement of the PW-2 and the PW-10 submitted that for some insignificant flaws in the investigation the prosecution case cannot be entirely debased in as much as every episode of the circumstantial chain have been successfully established by the prosecution to establish that none other than the appellant was guilty of the offence and thus all hypotheses of innocence have been demolished to show the appellant had committed the murder of his mother. He further submitted that from the Exbt. 2 (Seizure List) which has been admitted in the evidence following the prescription of law, it is established that the blood sample from the neck of the deceased was collected and seized. The PW-2 and the PW-8 being the seizure witnesses have stated that they were witness to the seizure of the blood samples. Even though they have not categorically narrated regarding the seizure of "blood collected with a piece of gauge from the severed head and neck of the deceased" which is marked as sample No. 1, but they have admitted the seizure list as proof of the seizure. Even the PW-II has stated categorically that be seized those samples by preparing the seizure (Exbt. 2) as such the submission as regards the comparison as has been made between the human blood group as available from the samples collected from the neck of the deceased and the blood sample from the other materials and from the face of the deceased cannot get any consideration. Mr. Sarkar, learned P.P. further submitted that in the cross examination the ocular evidence of the PW-2 was not confronted by the defence as regards the existence of the dao nearby the body of the deceased. Mr. Sarkar, learned P.P. further submitted that in the cross examination the ocular evidence of the PW-2 was not confronted by the defence as regards the existence of the dao nearby the body of the deceased. As such the decision of Shingara Singh (supra) has no relevance in the case in hand. Mr. Sarkar, learned P.P. further stated that even if, framing of the questions on the basis of the evidence as led by the prosecution were not exacted on the incriminatory materials, but those questions did not prejudice the appellant and the appellant had stated whatever he wanted to state before the Court. The appellant explained as regard the blood stain on his wearing clothes and face stating that the blood stains on his wearing clothes and face were there as he embraced his slain mother. But when the appellant was asked whether he had anything more to say he categorically stated that he was not present in the house. At dawn he found his mother in that condition and he was not guilty. Mr. Sarkar submitted that while learned counsel appearing for the appellant questioned about the adequacy of the evidence about the presence of the appellant in the place of occurrence at the relevant point of time and when the appellant stated that he was not present at the relevant point of time it definitely formed a plea of alibi. The law is well crystallised when the accused resorts to the plea of alibi, the burden of proof entirely shifts on him to prove that he was not present in the place of occurrence and he was present somewhere else. It was not possible or probable on his part to be present in the place of occurrence on the relevant point of time. Mr. Sarkar, learned P.P. emphatically state that no evidence whatsoever has been advanced by the defence to prove the plea of alibi, as such the contention of Mr. Dutta, learned counsel for the appellant regarding the presence has to be discarded. The defence has utterly failed to discharge the burden of proof of alibi which squarely lies on him. In Narendra Singh & Anr. Vs. State of M.P. as reported in (2004) 10 SCC 699 the Apex Court enunciates the law as under: 31. Dutta, learned counsel for the appellant regarding the presence has to be discarded. The defence has utterly failed to discharge the burden of proof of alibi which squarely lies on him. In Narendra Singh & Anr. Vs. State of M.P. as reported in (2004) 10 SCC 699 the Apex Court enunciates the law as under: 31. It is also well-known that even in a case where a plea of alibi is raised, the burden of proof remains on prosecution. Presumption of innocence is a human right. Such presumption gets stronger when a judgment of acquittal is passed. This Court in a number of decisions has set out the legal principle for reversing the judgment of acquittal by a higher Court. (See Dhanna Vs. State of M.P. (1996) 10 SCC 79 , Mahabir Singh Vs. State of Haryana (2001) 7 SCC 148 , and Shailendra Pratap & Anr. Vs. State of U.P.: 2003, (2003) 1 SCC 761 ), which had not been adhered to by the High Court. Moreover, the presence of the appellant has been proved by the circumstances in as much as during investigation or during trial no evidence has surfaced to detract by unfolding that the deceased had enmity with any other person. While responding to the question of the motive, when there is no ocular evidence, Mr. Sarkar, learned P.P., Tripura quite emphatically submitted that when there is probabilities of the other episodes the motive may occupy some relevance but when by the circumstantial evidence it has been proved that the accused but none was present in the place of occurrence and the accused was not in a position to explain how the offence took place, it has to be presumed conclusively that it is the accused but none who has committed the offence. Mr. Sarkar also has referred the very decision of the Apex Court in Varun Chaudhary(supra). The Apex Court re-enunciated the golden rule of appreciating the circumstantial evidence thus: 24. It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. The Apex Court re-enunciated the golden rule of appreciating the circumstantial evidence thus: 24. It is a settled legal position that in case of circumstantial evidence, there must be a complete chain of evidence which would lead to a conclusion that the accused was the only person, who could have committed the offence and none else. In the instant case, there is nothing to show that the accused had committed the offence and on the basis of the afore stated material, in our opinion, it would be dangerous to convict the accused. To buttress his submission, Mr. Sarkar, learned P.P. referred a decision of the Apex Court in G Parashwanath Vs. State of Karnataka, as reported in (2010) 8 SCC 593 where it is enunciated that: 24. ***In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved.... 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the Court. 25. In another case of C. Chenga Reddy Vs. State of A.P. reported in (1996) 10 SCC 193 , this Court has held that "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 left in the chain of evidence. Moreover, all the circumstances should be complete and there should be no gap left 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 his innocence". 22. Mr. Sarkar, while refuting the question of motive, further stated that the motive may play a certain role in some cases where absolutely the prosecution case is in a jig and the chain of the circumstantial evidence is not so decisive to establish guilt of the accused person. It is well settled that if by the circumstantial evidence all the hypotheses of innocence against the accused are demolished, the motive can be presumed even has not surfaced in the evidence. 23. On giving an anxious consideration of the rival contentions as projected by the counsel for the parties as well as on a meticulous scrutiny of the evidence both oral and documentary as placed on the records it appears that there is no dispute or ambiguity that the demeanour of the appellant when he was first found was highly indicative. Moreover, the severed head was being taken out by him from the hut of the deceased and he tried to go out of the house but was resisted by the PW-2 and on his first appearance the witnesses saw the sprinkled blood on the face of the appellant and over his wearing clothes. When the PW-2 and other witnesses entered into the hut they found the trunk without head and they found the head inside a tin wrapped in a towel. The statement of the PW-2 in the Court is of paramount importance where he stated that the appellant was moving to and fro in his house with a cane in his hand and was uttering some words not properly intelligible. He had a shirt in his wearing which was stained with blood and his face was also stained with blood. He also stated that he found a dao near the dead body when he entered into the hut of the deceased. Apart that, the PW-4, the wife of the appellant has categorically stated that on the fateful night the appellant did not sleep with them in that hut and he was away from the hut throughout the night and in the dawn the appellant was knocking the door but they did not open out of fear. Apart that, the PW-4, the wife of the appellant has categorically stated that on the fateful night the appellant did not sleep with them in that hut and he was away from the hut throughout the night and in the dawn the appellant was knocking the door but they did not open out of fear. She also stated in no uncertain terms that the appellant used to sleep in the hut of his mother whenever he did return late at right. The sprinkled blood on the face of the accused and on the wearing apparels and his staying away of his hut at that night would conclusively establish that he committed the offence. The inference becomes more consolidated when the appellant foiled to prove by adducing any evidence that he returned at dawn and found her mother dead in her hut and he embraced her. From empiricism, it can be stated that when the body is beheaded even if someone embraced that body, the blood cannot sprinkle on his face. 24. On the contrary, the presumption would be due to hold that if someone is hacked, the blood would instantaneously sprinkle on his face and the body and thus staining the wearing clothes. So, availability of the blood stain of the same blood group of the deceased on the face of the appellant and on his wearing clothes it is bound to establish that he hacked his mother. Having the same human blood group over the weapon of assault, it has further condensed that the said weapon was used even though there was no finger print available on the handle or on the dao. It has been also established that the appellant was highly eccentric which is definitely not unsoundness of mind, as such the probability of hacking the mother on the tip of momentous rage cannot be ruled out But this aspect is not required in as much as his presence at the relevant time of the murder has been established by the unrebutted circumstantial evidence forming the chain of events complete, without leaving any gap. The circumstances are consistent only with the guilt on demolishing the hypotheses of innocence in as much as the plea of the defence that the appellant was not present in the hut on that night and he only appeared in the place of occurrence at dawn has not been established by the evidence, as the burden of proving alibi squarely lies on the defence in view of Narendra Singh (supra). 25. In the course of the argument Mr. Dutta learned counsel appearing for the appellant raised a plea that the time of death as could be gathered from the statement of the doctor was 18 hours prior to the post mortem that is about 1800 to 1900 hours of the night of 12.05.2005. What Mr. Datta tried to extend is that at that time the PW 4 was awake but she disclosed nothing in this regard and as such, this would also dent the chain in the circumstantial evidence. Mr. Dutta, learned counsel perhaps has not properly observed the statement of the post mortem doctor (PW-5). What he stated is that the death occurred "within 18 hours from time of post mortem". Thus it includes any time between 12 to 5 dawn of 12/13.05.2005. As regards the seizure of the blood sample from the neck, no doubt the PW-2 did not state categorically the blood sample was collected by the Investigating Officer from the neck of the deceased and that sample was seized by the seizure list (Exbt. 2), but he had vouched the seizure of the articles as catalogued in the Exbt. 2. The accidental slip or non-mention definitely would not take away the whole content of the documentary evidence which is a document created by the PW-11 who had categorically stated that he seized the blood samples by way of Exbt. 2. Moreover, the defence did not confront that aspect of the matter at the time of cross-examination. The submission of Mr. D. Sarkar, learned P.P. Tripura as regards the examination under Section 313 of the Cr.P.C. quite reasonable and as such it cannot be held that the appellant suffered any prejudice for the lackadaisical conduct of the trial Court while examining the appellant under Section 313 of the Cr.P.C. Finally, the question of the motive as raised by Mr. Dutta requires some dilation. 26. Dutta requires some dilation. 26. In Badam Singh (supra) the Apex Court held that: Even though existence of motive loses significance when there is reliable ocular testimony in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case. This enunciation cannot be interpreted as if the motive was not established the circumstantial evidence whereby all hypotheses of innocence against the accused have been demolished has to be discarded, rather it denotes that when the ocular testimony becomes suspect, the motive turns to be one of the elements to gather assurance from. But it does not suggest that in absence of any proof as to the motive, the entire circumstantial evidence as set up has to be discarded. The submission of Mr. D. Sarkar, learned P.P. is wholly justified that if by the evidence every episode of the circumstantial chain is proved to the hilt to form it complete, then the motive can be presumed even if not proved. Ranvir Yadav (supra) has emphasized the same principle. The cumulative effect of the circumstantial evidence that has been laid by the prosecution has destroyed all hypotheses of the innocence of the appellant as his presence in the nick of time has been well founded and probability of presence of any other person but the appellant has been completely excluded by the evidence. The blood-stain found on his face and on the wearing clothes has further established that he hacked his mother. Thus despite the dexterity as unsheathed by Mr. R. Dutta, learned counsel for defending the appellant, no infirmity has surfaced in the finding of conviction as returned by the impugned judgment and order. As corollary to this, this appeal stands dismissed. LCRs be returned forthwith.