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Judgment
[Dr. T. Amarnath Goud, J.]
[1] When the case is called, Ms. Ayesha Saha Hirawat, learned counsel appears for the appellant and Mr. Raju Datta, learned P.P. appears for the respondent.
[2] The present appeal has been filed under Section 374 of Cr.P.C., 1973 against the judgment and order of conviction and sentence dated 19.06.2024 and 21.06.2024 respectively passed by the learned Addl. Sessions Judge, Khowai, Tripura in Sessions Trial (T-1) 47 of 2013 whereby the appellant herein was convicted for commission of offence punishable under Section 201 of IPC to suffer rigorous imprisonment for 5 years along with fine of Rs.10,000/- i.d. of payment of fine to suffer S.I. for 3 months only and to suffer rigorous imprisonment for life with fine of Rs.25,000/- under Section 302 of IPC i.d. of payment of fine to suffer simple imprisonment for 6 months only. It was further directed that both the sentences should run concurrently.
[3] The appellant has filed this appeal seeking the following reliefs:
“(i)Admit the appeal,
(ii) Call for the case records of the case No. Sessions Trial (T-1) 47 of 2013 from the Court of the Ld. Addl. Sessions Judge, Khowai, Tripura.
(iii)Stay the execution of sentence, (iv) Notify the Public Prosecutor
AND
(d)After hearing, Your Lordships may be pleased to set aside/quash the impugned judgment and order of conviction and sentence dated 19/06/2024, passed by (Sri. Manabendra Debbarma) the Ld. Addl. Sessions Judge, Khowai, Tripura, in case No. Sessions Trial (T-1) 47 of 2013.”
[4] The prosecution case, as set out in the FIR, is that on 17.06.2001, the informant, namely, Smt. Pratibha Das, wife of Late Anil Das, resident of Uttar Chebri, P.S. Khowai, District Khowai, Tripura, lodged an oral ejahar before the Sub-Inspector of Police, Khowai Police Station, namely, Runu Dey. It was alleged therein that on the preceding day, i.e. on 16.06.2001, at about 6:00 p.m., the informant came to learn from her younger son-in-law, namely, Gourab Das, that her daughter, Jayanti Das, and her husband, Gopal Das, were not traceable at their residence. On the following day, i.e. on 17.06.2001, the informant, accompanied by her younger son, went to the house of her daughter Jayanti Das, situated at Purba Ramchandra Ghat (Battali). Upon reaching there, she found that none of the occupants was present in the house. She thereafter made enquiries from Pramode Das, the elder brother of Gopal Das, and his wife, who were residing at the eastern vitti house. However, according to the informant, they could not furnish any satisfactory explanation regarding the whereabouts of Jayanti Das and Gopal Das. Thereafter, the informant along with Pramode Das, searched the house of her daughter. During such search, they noticed a gunny bag kept underneath a bamboo macha (cot) at the north-eastern corner of the house. With the assistance of Pramode Das and her elder son-in-law, namely, Dipak, the informant took out the said gunny bag and brought it to the porch. Upon opening the gunny bag, they allegedly found therein the dead body of Jayanti Das. The informant further alleged that she strongly believed that her son-in-law, Gopal Das, had killed her daughter Jayanti Das during the night of 14/15.06.2001 and thereafter concealed her dead body inside the gunny bag and fled from the place of occurrence.
[5] The recording officer, namely Runu Das, SI of Police, thereafter forwarded the same to the O/C of Khowai P.S. The In-charge O/C of the said Police Station, namely Ranjit Kalai, received the ejahar at about 1805 hours on 17.06.2001 and registered a case vide Khowai P.S. Case No. 20 of 2001 under Sections 302/201 of the IPC. Thereafter, the O/C of the Police Station, namely Mr. A.K. Datta, endorsed the case to Runu Dey, SI of Police, for investigation.
[6] During the course of investigation, the I.O. prepared the inquest report over the dead body of Jayanti Das in the presence of independent witnesses and thereafter sent the dead body to Khowai Hospital by issuing a dead body challan. The I.O. also seized the jute bag (basta) in which the dead body was found, along with the sari, petticoat, two bangles, and two gold earrings belonging to the deceased, under a seizure list in the presence of witnesses. The I.O. further prepared a hand-sketch map and index of the place of occurrence, recorded the statements of witnesses under Section 161 of the Cr.P.C., and collected the post-mortem report of the deceased from Khowai Hospital. Upon completion of the investigation, the I.O. submitted a charge-sheet vide Khowai P.S. C/S No. 42(A), dated 31.10.2001, under Sections 302/201 of the IPC against the accused, Gopal Das, showing him as an absconder.
[7] Upon commitment of the case, the learned Addl. Sessions Judge, Khowai, framed charges against the appellant under Sections 302 and 201 of the IPC. In support of its case, the prosecution examined as many as 13 witnesses, including the Investigating Officer (I.O.). After closure of the prosecution evidence, the accused was examined under Section 313 of the Cr.P.C. He declined to adduce any defence evidence and claimed innocence.
[8] On perusal of the evidence on record and after considering the rival submissions advanced by the learned counsel appearing for the parties to the lis, the learned Addl. Sessions Judge held that the prosecution had succeeded in proving the charges for the offences punishable under Sections 302/201 of the IPC against the accused, namely, Gopal Das, beyond reasonable doubt. Accordingly, the accused, Gopal Das, was found guilty and was convicted and sentenced by the learned Addl. Sessions Judge, as stated hereinbefore.
[9] Ms. Ayesha Saha Hirawat, learned counsel appearing for the appellant, submits that, there is no eye witness to the incident and the case is totally based on circumstantial evidence. It is also submitted by her that from the evidence of the Investigating Officer, it emerges that the primary source of information was not examined during the course of investigation. She further contends that no fingerprint evidence could be obtained from the wearing apparels, as the same were not sent for forensic examination to the State Forensic Science Laboratory. Learned counsel submits that these aspects of the investigation have not been duly explained by the prosecution. Learned counsel for the accused-appellant vehemently contends that, in the facts and circumstances of the present case, the prosecution has also failed to establish the “last seen” theory against the accused-appellant. Moreover, learned counsel for the accused-appellant submits that the prosecution has also failed to establish any cogent or credible motive on the part of the accused-appellant for the commission of the alleged offences under Sections 302/201 IPC. It is contended that the absence of proof of motive further weakens the prosecution case, particularly when the case rests upon circumstantial evidence. She further submits that a material witness, namely, Gourab Das, has not been examined by the prosecution. It is further contended by her that the chain of circumstances relied upon by the prosecution remains incomplete. Learned counsel finally submits that the prosecution has failed to rule out the possibility of the involvement of a third person, who could have entered the house and committed the alleged offence. Accordingly, it is contended that the prosecution has failed to establish the case against the appellant beyond reasonable doubt.
[10] In support of her submission, Ms. Saha Hirawat, learned counsel relied on the following decisions:
Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116- In this case, at paragraph Nos.151, 152 and 153, Hon’ble Supreme Court observed the followings:
“151.It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.
152.Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh; AIR 1957 SC 343.
This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh; (1969) 3 SCC 198 and Ramgopal v. State of Maharashtra; (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case; AIR 1957 SC 343:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra; (1973) 2 SCC 793 where the following observations were made:
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3)the circumstances should be of a conclusive nature and tendency,
(4)they should exclude every possible hypothesis except the one to be proved, and
(5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
Kali Ram vs. State of Himachal Pradesh reported in (1973) 2 SCC 808- In this case, the Hon’ble Supreme Court at Paragraph No.25 observed that another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
the State of Odisha vs. Banabihari Mohapatra and another; Special Leave Petition (Crl.) No.1156 of 2021decided on 12.02.2021- Hon’ble Supreme Court in said case observed that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt.
R. Sreenivasa vs. State of Karnataka; Criminal Appeal No.859 of 2011 decided on 06.09.2023- In this case, the Hon’ble Apex Court relied on another decision of Hon’ble Apex Court in case of Kanhaiya Lal v. State of Rajasthan; (2014) 4 SCC 715 wherein Hon’ble Apex Court noted that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime and there must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, by itself cannot lead to proof of guilt against the appellant.
Guna Mahto vs. State of Jharkhand; Criminal Appeal No.108 of 2012 decided on 16.03.2023- In this case, Hon’ble Supreme Court reiterated the principles as laid down in the decisions of Sharad Birdhichand Sarda (supra) and Shivaji Sahabrao Bobade (supra). Further, observation of the Apex Court in said case is that doubt and suspicion cannot form basis of guilt of the accused. The circumstances linking the accused to the crime are not proven at all, much less beyond reasonable doubt.
[11] Mr. Raju Datta, learned P.P., at the very outset of his submission, draws the attention of this Court to the deposition of Shri Pramode Das (PW-12), who is the brother of the appellant wherein he stated that he had seen his brother in his hut on the day preceding the recovery of the dead body. However, on the very day of the recovery of the dead body, the appellant was conspicuously missing and had fled the house without any plausible explanation and returned only after a lapse of 11/12 years of such incident and the said fact is also established by two defence witnesses namely, Abhijit Namasudra and Nishitabha Das. Mr. Datta, learned P.P. additionally urged that the prosecution has brought home the charges leveled against the appellant, drawing strength from the depositions of the prosecution witnesses, which stand duly corroborated by the medical testimony. Mr. Datta, learned P.P., has also drawn attention of this Court to the provisions of Section 106 of the Evidence Act, 1872, which mandates that when any fact is especially within the knowledge of a person, the burden of proving that fact rests upon him. In furtherance of this submission, learned P.P. has adverted to the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure, 1973, pointing out that the appellant has utterly failed to discharge the onus cast upon him in terms of Section 106 of the Evidence Act. To support his contentions, learned P.P. relies on the following decisions:
Sri Atikul Islam alias Manir Hossain vs. the State of Tripura; Crl. A(J) No.49 of 2018 decided on 23.06.2020- This case is in almost similar line to the present case as submitted by learned P.P. In said case, the Division Bench of this Court at paragraph Nos. 38 to 41 held as under:
“[38] In the aforesaid established circumstances, in our opinion, the failure of the appellant to explain these adverse circumstances is an additional factor which convinced us of his involvement. The appellant has nowhere stated or we have not noticed any suggestion to the effect that the appellant has taken the plea in course of trial that there had been an intruder or trespasser in their hut where they slept at that night.
[39] In Kalu alias Laxminarayan versus State of Madhya Pradesh, reported in (2019) 10 SCC 211 the Supreme Court while dealing with similar situation made reference to various of its earlier decisions commencing from Hanumant versus State of Madhya Pradesh reported in AIR 1952 SC 343 : Cri LJ 129 (AIR pp. 345-46, para 10) observed thus :
“13.In the circumstances, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the matrimonial home as it was a fact specifically and exclusive to his knowledge. It is not the case of the appellant that there had been an intruder in the house at night. In Hanumant vs. State of Madhya Pradesh, AIR 1952 SC 343, it was observed “10. …..It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused….”
14.In Tulshiram Sahadu Suryawanshi vs. State of Maharashtra, (2012) 10 SCC 373, this Court observed: “23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar reported in (2000) SCC 382 (SCC p.393, para 38).
“38.Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambhu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus: (AIR) p.406, para 11.
“11.This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are preeminently or exceptionally within his knowledge.”
15.In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006 (10) SCC 681, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case: (SCC pp 690 - & 694 paras 14, 15 & 22)
“14.If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions — quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.”
15.Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
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22.Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.”
16.In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313, Cr.P.C. with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased.”
[40] We already have observed in this judgment that the prosecution has been able to establish that the appellant and his wife were inside the same hut on that fateful night and in that circumstance, the appellant has failed to discharge his obligation to furnish even some explanation under Section 313 Cr.P.C with regard to the circumstances under which his wife met an unnatural/homicidal death inside the same hut where they slept together. His failure to offer any explanation whatsoever, therefore, leaves no doubt to fortify our conclusion of his being the assailant of his deceased wife. As argued by the learned counsel for the appellant with vehemence about the suspicious circumstances, we find no substance in the submission for the reason that there is no room left for us to suspect the circumstance that the appellant and his deceased wife were exclusively at the same hut has been proved beyond reasonable doubt. As such, we do not want to burden this judgment with the authoritative pronouncements by the Supreme Court as relied upon by the learned counsel for the appellant that suspicious howsoever grave cannot take the place of proof. Having viewed thus, we find no merit in the instant appeal filed by the accused appellant.
[41] Accordingly, the judgment and order of conviction and sentence imposed upon the accused-appellant by the learned Sessions Judge, Sepahijala District, Sonamura do not call for any interference. The instant appeal filed by the accused-appellant is dismissed. The judgment of conviction and sentence as returned by the learned Sessions Judge, Sepahijala District, Sonamura dated 26.09.2018 is hereby upheld and affirmed. Send down the LCRs forthwith.”
Ram Gopal S/O Mansharam vs. State of Madhya Pradesh reported in (2023) 5 SCC 534- In said case, Hon’ble Supreme Court observed that once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased. Further the Hon’ble Supreme Court opined it is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. Of course, Section 106 is certainly not intended to relieve the prosecution of its duty to prove the guilt of the accused, nonetheless it is also equally settled legal position that if the accused does not throw any light upon the facts which are proved to be within his special knowledge, in view of Section 106 of the Evidence Act, such failure on the part of the accused may be used against the accused as it may provide an additional link in the chain of circumstances required to be proved against him. In the case based on circumstantial evidence, furnishing or non- furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution was proved against him. Furthermore, the Hon’ble Apex Court observed that if the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence.
State of Rajasthan vs. Kashi Ram reported in (2006) 12 SCC 254-Learned P.P. relies on paragraph No.23 of this decision which is reproduced as under:
“23.It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. AIR 1960 Mad 218.”
Learned P.P. concluded his submissions by urging that the judgment and order of conviction and sentence passed by the learned Trial Court is founded on a meticulous appreciation of evidence and material on record. Lastly, he submitted that the findings arrived at by the learned Trial Court are legally sound, just and proper and therefore, do not warrant any interference by this Court in exercise of its appellate jurisdiction.
[12] Ms. Saha Hirawat, learned counsel in reply to the arguments advanced by learned P.P. submits that the last seen theory will not apply to this case since the time of death of the deceased is not mentioned. Further, she stated that wife of brother of Gopal Das was there in the house but she was never examined. Learned counsel further adds to her submission that the house of Gopal Das where the incident took place was an open house and any third person could have come there and committed the crime. Learned counsel also submits that the statement of PW-12, the brother of Gopal Das that he had seen Gopal in his hut the previous day of the alleged incident but the time when he saw Gopal was also not proved. With regard to the submission of learned P.P. regarding Section 106 of the Evidence Act, Ms. Saha Hirawat, learned counsel has relied on the following decisions:
Manharan Rajwade vs. State of Chhattisgarh; Criminal Appeal No.(s) 818 of 2019 decided on 25.07.2024- In said decision, the Hon’ble Supreme Court while dealing with Section 106 of the Evidence Act has observed as under:
“7.For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5.00 p.m., and the said witness stated that the appellant came back home at 7.00 pm. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has not discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant.” …………………………………. 9. Therefore, the prosecution has miserably failed to prove the only circumstance it relied upon, namely, that the appellant and the deceased were last seen together. Therefore, the prosecution has failed to bring home the charge of the offence of murder punishable under Section 302 of the IPC.”
Govindaraj vs. the Inspector of Police, All Women Police Station, M. Pudupatti Police Station reported in 2026 Supreme (Mad) 1936- In this case, followings were observed by the Madurai Bench of the Madras High Court:
“12.Even according to the case of prosecution there was a scuffle between the appellant and the deceased, since the appellant gave money to his elder daughter Pandiselvi. How these words came to knowledge of the witnesses and who has stated about the said words spoken between the deceased and the appellant is also not clear. These are all major discrepancies and no explanation has been offered in that regard. The trial Court without clinching evidence merely on conjectures and surmises came to conclusion that the charges have been proved as against the appellant. The trial Court failed to consider that there is no evidence of last seen theory, motive and there is no materials available to connect the appellant with the crime. Without proving the last seen theory the Court cannot invoke Section 106 of Indian Evidence Act and there are no evidence that the appellant was seen with the deceased prior to the occurrence and there is no cogent evidence to link the appellant with the crime and the prosecution has failed to prove the charges leveled as against the appellant for the offences under Section 302 and 201 of IPC, therefore the appellant is entitled for acquittal and the conviction and sentence passed by the trial Court is liable to be set aside and the appeal is liable to be allowed.”
[13] Smt. Pratibha Das (PW-1), the informant of this case, in her evidence stated that she was informed by her younger son-in-law, Gaurab Das, that her daughter, Jayanti Das and son-in-law, Gopal Das were missing. She and her younger son then visited the couple's house at Ramchandraghat, Battala, where they found the door open and nobody inside that house. Upon making inquiries, Gopal's elder brother, Promode Das and his wife stated they had no knowledge of the couple's whereabouts. She then entered the hut and discovered a foul-smelling bag beneath the cot (macha) which was retrieved after calling local residents and her elder son-in-law. Convinced that Gopal Das had killed her daughter and concealed the body inside the bag, she filed a complaint on the spot.
In her cross-examination, she denied the defence suggestions that her daughter Jayanti's dead body was never recovered from a bag beneath the cot in Gopal Das's hut. She also denied further suggestion put forward that she did not receive information from Gaurab Das about the couple being untraceable, and that her belief regarding Gopal Das murdering her daughter and concealing the body in the bag.
[14] Smt. Pakriti Das (PW-2), elder sister of the deceased, in his evidence stated that her sister lived near her house with her husband, Gopal Das, who used to frequently torture Jayanti, prompting PW-2 to temporarily shelter her and after 2/3 days Gopal took her back. She further stated that about 12 to 14 years ago, after not seeing Jayanti for 2 or 3 days, she went to her sister Jayanti’s house and found the doors and windows of the hut closed. Upon enquiry, the wife of Gopal's elder brother claimed Jayanti had gone to her mother and prevented PW-2 from entering the premises. PW-2 further deposed that she subsequently sent Gaurab Das (her younger sister's husband) to Agartala, following which their mother arrived and Jayanti's dead body was recovered concealed inside a bag within Gopal Das's hut in her presence.
During cross-examination, PW-2 admitted that her previous statement to the police did not contain her assertions that Gopal Das used to torture her sister or that she had kept Jayanti at her house for 2 to 3 days to protect her from such abuse. She categorically denied the defense suggestion that the wife of Gopal's elder brother had never told her that Jayanti had gone to her mother at Agartala.
[15] Smt. Rani Das (PW-3) is a neighbour of the Gopal Das and Jayanti Das. She stated in her evidence that about 10 to 11 years ago, she witnessed a quarrel between the couple. She also stated that on the following morning, she saw Gopal Das standing in his front door. She further asserted in her evidence that upon speaking with the wife of Gopal's elder brother, she was informed that Gopal and his wife had gone to her father-in-law's house. Furthermore, her evidence revealed that Gaurab Das (husband of Jayanti's sister) subsequently went to Agartala to fetch Jayanti's mother, after which Gaurab and mother of Jayanti discovered Jayanti's dead body inside Gopal Das's hut while Gopal himself was untraceable.
In her cross-examination, PW-3 admitted that she had not stated to the police that she had witnessed a quarrel between Gopal Das and Jayanti Das. She categorically denied the defence suggestion that Jayanti's dead body was not recovered from inside Gopal Das's hut.
[16] Shri Pradip Bhattacharjee (PW-4) is also a neighbour of Gopal and Jayanti who stated in his evidence that about 13 to 14 years ago, he heard hue and cry coming from the house of Gopal Das and learned that the dead body of Gopal's wife, Jayanti, had been found. He then proceeded to the house and saw Jayanti's dead body was lying in the courtyard.
[17] Shri Dipak Das (PW-5), brother-in-law of deceased, Jayanti deposed that about 11/12 back, his mother-in-law took him to the house of Jayanti, but neither Jayanti nor her husband Gopal Das was present there. He stated that the door and windows of their hut were closed and upon opening the door, they found a bag beneath the macha (cot). On opening the bag, they discovered the dead body of Jayanti, whereafter the matter was reported to the police station.
In cross-examination, PW-5 stated that the police were informed after they saw the dead body of Jayanti. He further denied the defence suggestion that the doors and windows of the house of Gopal Das were not closed.
[18] Shri Bikash Paul (PW-6) stated in her evidence that about 12/14 years ago, on hearing a hue and cry from the house of Gopal Das, he went there and found the door and windows of the hut closed. Upon opening the door, they found a jute bag beneath the macha (cot) and on opening the bag, the dead body of Jayanti, wife of Gopal Das, was found therein. He further stated that the matter was thereafter informed to the police, who took away the dead body of Jayanti Das.
During cross-examination, he stated that the police was informed after seeing the dead body of Jayanti. He denied the defence suggestion that the doors and windows of the house of Gopal Das were not closed.
[19] Shri Ashutosh Rudra Pal (PW-7) deposed substantially in the same line as PW-6, stating that about 11/12 ago, he went to the house of Gopal Das and came to know that the dead body of Jayanti had been recovered from a jute bag kept beneath the macha (cot) inside the hut of Gopal Das. He further stated that thereafter the police arrived at the spot and took away the dead body.
[20] Shri Badal Dey (PW-8) did not depose to any material fact relevant to the prosecution case. His evidence is confined to stating that about 12/13 years back, he had taken photographs of a deceased woman at Ramchandraghat.
[21] Shri Ranjit Kalai (PW-9), Inspector of Police, deposed that on 17.06.2001, while officiating as Officer-in-Charge of Khowai P.S., he received a complaint at about 18:06 hours of Smt. Pratibha Das, which had been recorded by SI Runu Deb at the Battali police camp. He also identified the acknowledgment on the written complaint as Exbt.1/1 and stated that, on the basis thereof, Khowai P.S. Case No.20 of 2011 was registered under Sections 302/201 IPC against the FIR-named accused Gopal Das. He also identified the printed FIR as Exbt.3 and his signature thereon as Exbt.3/1.
During cross-examination, PW-9 admitted that no explanation for the delay in lodging the complaint was recorded in Column No. 8 of the printed FIR form.
[22] Dr. Purnendu Debnath (PW-10) who was the Medical Officer at Khowai Hospital stated in his evidence that on 18.06.2001 at 12:30 pm, he conducted the post-mortem examination of the deceased, Jayanti Das, in connection with Khowai P.S. GDE No. 651 dated 17.06.2001, and prepared the detailed report in the prescribed form enumerating the details. He opined that the cause of death was cardio-respiratory failure resulting from asphyxia which was caused by obstruction of air passage applying pressure over neck.
In his cross-examination, PW-10 stated that the post-mortem report did not mention the age of death as there was no designated column in the prescribed form, while further clarifying that decomposition of a dead body generally sets in between 24 to 48 hours after death.
[23] Shri Swapan Dasgupta (PW-11) who was SI of Police at Khowai P.S., deposed that he recorded G.D. Entry bearing No. 651 dated 17.06.2001 on 18.06.2001 at about 12:30 pm, following an anonymous telephonic information regarding a murder in the house of one Gopal Das.
[24] Shri Pramode Das (PW-12) is the younger brother of the appellant herein who stated in his evidence that he and his brother, Gopal resided in separate huts within the same premises, and that about a year after Gopal’s marriage, he left for work one morning after noticing one part of his brother, Gopal’s door open. Upon learning that Gopal's mother-in-law and brother-in-law came to their house, he returned home and found a gathering of local people and in his presence the mother-in-law and brother-in-law of Gopal brought out the dead body of the deceased, Jayanti, contained inside a jute bag, from the hut to the courtyard. PW-12 further testified that he did not observe any injury marks on the body but his brother Gopal, who was seen in his hut the previous day and resided there with his wife was missing from the house since that morning.
During cross-examination, PW-12 deposed that the house premises belonged to their parents and he was residing in a separate house in the same house premises. The PW also stated that in said premises, he and his brother Gopal resided in separate huts facing each other and there was a courtyard measuring about 20 cubits in between said two huts. He further stated that Gopal worked outside the State, including at Agartala prior to his marriage and he had returned home a day before the recovery of his wife's dead body.
[25] Shri Runu Dey (PW-13), the investigating officer, deposed that he was posted as the SI of Police in Khowai P.S. and on 17.06.2001, the Duty Officer namely, Swapan Dasgupta received a telephonic information regarding a murder at the house of Gopal Das at East Ramchandraghat which was recorded vide GDE No. 651 dated 17.06.2001. He then proceeded to the spot along with other staff upon the direction of O/C, Khowai P.S., where he found the dead body of Jayanti Das (wife of Gopal Das) inside a jute bag in the courtyard. He photographed the said jute bag and also came to know that the dead body was lying inside the hut within that jute bag. He also recorded the oral complaint of Smti. Pratibha Das [Ext.5(series)]. As cognizable offence was disclosed from the complaint, he commenced investigation on the spot and forwarded the complaint to the P.S. through a messenger (driver)-leading to the registration of said complaint as Khowai P.S. Case No. 20 of 2001 under Sections 302/201 IPC by In-charge O.C. Ranjit Kalai. The case was endorsed to him for investigation by O/C namely, Mr. A. K. Dutta. In course of investigation, PW-13 prepared the inquest report (Ext.7) in presence of witnesses, dispatched the body to Khowai Hospital for post-mortem vide dead body challan (Ext.8), seized the jute bag where the dead body was found along with the deceased's wearing apparels which includes sari, petticoat and two nos. of gold ear ring vide seizure list (Ext.9). He also prepared the hand-sketch map and index of the place of occurrence (Exts.10 and 11 respectively). During the course of investigation, he recorded statements of ten witnesses under Section 161 Cr.P.C., collected the post-mortem report, and ultimately submitted the charge-sheet under Sections 302/201 IPC against the accused, Gopal Das, showing him as an absconder.
During cross-examination, PW-13 stated that while lodging the oral complaint, Pratibha Das expressed suspicion that the accused, Gopal Das, had killed his wife on the night of 14/15.06.2001. He admitted that he did not record the statement of Gaurab Das during investigation and that no explanation was provided in the Case Diary for this omission. PW-13 specifically denied the defence suggestion that his investigation was perfunctory.
[26] Two defence witnesses, namely Sri Abhijit Namasudra and Sri Nishitabha Das were also examined, both of whom merely stated that Gopal Das had not been available in the locality for the last 10/11 years.
[27] This Court has considered the submission of both sides and perused the materials placed on record.
[28] It is evident from the record that the prosecution case rests on circumstantial evidence. PW-12 deposed in his testimony that on the previous day of the recovery of the dead body, he had seen his brother Gopal Das (the appellant), present inside his hut. Corroborating this timeline, Smt. Rani Das (PW-3) testified that on the morning of the incident, she saw the appellant standing in the door of his house. This uncontroverted evidence establishes that the appellant was in the company of the deceased within their living hut before her demise. Immediately following the discovery of the dead body, the appellant was found missing from his house. His sudden disappearance, failure to participate in the funeral rites and also without offering any reasonable explanation for his whereabouts constitute vital subsequent conduct under Section 8 of the Evidence Act. The crime scene was an enclosed hut under the exclusive occupation of the couple. No evidence of forced entry by an external intruder was brought on record during trial. Medical testimony of (PW-10) who conducted the post-mortem examination of the deceased stated in his report that cause of death was cardio-respiratory failure resulting from asphyxia which was caused by obstruction of air passage applying pressure over neck, ruling out accidental or suicidal death.
[29] The principle embedded in Section 106 of the Indian Evidence Act comes into play in situations of this nature. Section 106 of the Indian Evidence Act, 1872 provides that when any fact is specially within the knowledge of any person, the burden of proving that fact lies upon him. When a crime like murder of wife happens inside a private hut where only a husband and wife live, the details of how it took place are known best to the husband. Under the law, since he was there, he has a duty to explain how his wife died. If he suddenly disappears, hides from the police, or stays completely silent instead of explaining what happened, the Court in general is inclined to treat his silence as a sign of guilt. The appellant's sudden and unexplained disappearance from the hut when his wife's body was found inside a gunny bag is not just suspicious behavior; it is a strong piece of evidence that completes the chain of events pointing to his guilt. It is only after about 10/11 years when he returned from the date of such alleged incident and for his prolonged abscondence, the Trial could not move on. When an accused person absconds and successfully evades the process of law for nearly 10/11 years, resulting in a prolonged standstill of the trial, such conduct not only frustrates the speedy dispensation of justice but also reinforces the inference of a guilty conscience. The appellant has also failed to provide any explanation under Section 313 Cr.P.C., as to how his wife died inside their locked home and such non-explanation provides a vital missing link in the chain of circumstantial evidence, entitling the Court to draw an adverse inference.
[30] The Division Bench of this Court in Atikul Islam alias Manir Hossain (supra), in a similar nature of case, relied on another decision of Hon’ble Supreme Court in case of Tulshiram Sahadu Suryawanshi vs. State of Maharashtra; (2012) 10 SCC 373, wherein it was observed in the circumstances of that case, the principles embodied in Section 106 of the Evidence Act can also be utilized and this Section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
[30.1] In said case, the Division Bench finally opined that the prosecution had discharged its burden and had, through cogent evidence, brought relevant circumstances on record. It was proved that the appellant of that case was in the same night when his wife died a homicidal death due to asphyxia. All these circumstances unerringly point to the involvement of the accused. If he had a plausible explanation, he ought to have offered the same. Instead, he chose the line of total denial.
[30.2] In the case in hand as well, the appellant was with his wife when she suffered a homicidal death, as discussed earlier - a circumstance that strongly indicates his involvement. During his examination under Section 313 of Cr.P.C., when given the opportunity to provide an explanation, he offered nothing material and instead chose a flat denial. Moreover, absence of any justifiable explanation from the appellant for such a prolonged evasion of the law for about 10/11 years, this escape serves as strong collateral evidence of a guilty conscience.
[31] In view of above discussions, this Court is of the view that the concurrent findings returned by the learned Trial Court suffer from no perversity or material irregularity warranting interference. Hence, the judgment and order of conviction dated 19.06.2024 and the consequent sentence dated 21.06.2024 passed by the learned Additional Sessions Judge, Khowai, Tripura, in Sessions Trial (T-1) 47 of 2013, are hereby affirmed. Accordingly, this appeal stands dismissed.
Return the lower case records along with a copy of this judgment.
As a sequel, miscellaneous application(s), pending if any, shall also stand closed.