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Judgment
[Dr. T. Amarnath Goud, J]
This appeal is filed under Section 374(2) of Cr.P.C. corresponding to Section 415(2) of BNSS for setting aside and acquittal against the judgment and conviction dated 04.07.2025 passed by Learned District & Session Judge, North Tripura, Dharmanagar in case No.ST(T-1) 08/2020. By the said judgment and order of conviction and sentence Learned Trial Court has found the appellant to be convicted under Section 302 of IPC for imprisonment for life and also to pay fine of Rs.10,000/- i.d. to suffer imprisonment for 6 months and also convicting under Section 380 of IPC to suffer R.I. for 7 years and also to pay fine of Rs.5,000/- in default to suffer imprisonment for 3 months and both the sentences shall run concurrently.
Heard Learned Senior Counsel Mr. S. Sarkar assisted by Learned Counsel Mr. S. Sarkar appearing for the accused appellant in custody and also hearing Learned P.P. appearing on behalf of the State.
Taking part in the hearing Learned Senior Counsel for the appellant in custody first of all drawn the attention of the Court that in this case the Learned Trial Court has found the appellant to commit the guilty of offence for the alleged commission of offence punishable under Section 302/380 of IPC but there is no eye witness of the prosecution who has seen to commit the murder of the deceased victim by the accused in custody save and except the evidence of recovery of golden ear ring from the possession of the appellant in custody. So according to Learned Senior Counsel this case is entirely based upon the circumstantial evidence on record. It was further submitted by Learned Senior Counsel that regarding recovery of alleged ear ring of the deceased prosecution witnesses gave two versions. PW-4 stated that the ear ring was seized from the jewellery shop on the other hand PW-9 stated that the same was seized directly from the possession of the accused in the police canteen. Said PW-4 was not declared hostile by the prosecution in this case. So in such a situation there was no scope on the part of the Trial Court to convict the accused. It was also submitted by Learned Senior Counsel that the alleged disclosure statement made by the accused during the custody of police has got no evidentiary value, so there is no scope to place any reliance upon the statement in view of the Section-25 of Indian Evidence Act. It was also submitted that even the evidence of the prosecution suffers from infirmities and the prosecution at the time of hearing has failed to explain those infirmities that has surfaced from the evidence on record.
Lastly in support of his contention Learned Senior Counsel relied upon a few citations. In Thammaraya & Anr. v. State of Karnataka reported in (2025) 3 SCC 590, wherein in para No.25, Hon’ble the Apex Court observed as under:
“25.Furthermore, another very crucial missing link in the prosecution case that it failed to conduct the test identification parade (TI Parade) of the recovered articles, thereby, bringing the identification of the material objects in Court for the first time, is under a cloud of doubt. It is a case of sheer negligence and dereliction of duty on the part of the investigating agency and the Public Prosecutor for not conducting test identification parade (TI Parade). This Court shed light on the purpose of test identification parade (TI Parade) in Ramkishan Mithanlal Sharma v. State of Bombay [Ramkishan Mithanlal Sharma v. State of Bombay, (1954) 2 SCC 516] , wherein it held as follows : (SCC p. 532, para 20)
“20.… These parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject-matter of the offence or to identify the persons who are concerned in the offence. … the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject-matter of the offence or the persons who are concerned in the offence.” (emphasis supplied)”
In Mukhtiar Ahmed Ansari v. State (NCT of Delhi) reported in (2005) 5 SCC 258, wherein in para No.13, Hon’ble the Apex Court observed as under:
“So far as proceedings under TADA are concerned, in our opinion, the learned counsel for the appellant is right in submitting that the proceedings could not have been initiated in view of sub-section (1) of Section 20A of TADA. The said provision reads thus :
"20A. Cognizance of offence - (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (emphasis supplied)
In Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622, wherein in para Nos.150, 151 and 152, Hon’ble the Apex Court observed as under:
“150.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.
151.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 [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] . 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 : 1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] . It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] :
“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.”
152.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 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
“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.”
Relying all those citations of the Hon’ble Supreme Court Learned Senior Counsel submitted that since there are two sets of evidence, so in view of the principle of law laid down by the Hon’ble Apex Court the benefit should be granted in favour of the accused and as such the accused in custody may be given benefit of doubt and may be acquitted from the charge of this case and set at liberty.
On the other hand, Learned P.P. strongly countered the submission made by Learned Senior Counsel for the appellant in custody. He submitted that admittedly in this case there is no eye witness of the prosecution who has seen to cause death of the deceased victim by the accused but the ear ring which was possessed by the deceased victim prior to her death was found under the possession of the accused and he could not explain the possession of the same. As such, in view of Section 114A of the Evidence Act Learned Trial Court rightly found the appellant to be guilty of the offence of murder of the deceased victim on the basis of circumstantial evidence on record and there was no infirmity to the judgment delivered by Learned Trial Court.
It was further submitted that the accused before the Learned Trial Court by the style of cross-examination could not discard or raise any doubt to disbelieve the evidence on record of the prosecution. Furthermore Section 106 of the Indian Evidence Act corresponding to Section 109 of BSA strongly held against the accused in custody and the accused in custody before the Learned Trial Court has failed to discharge his burden under the aforesaid provisions of law and in course of his examination under Section 313 of Cr.P.C. save and except denial the accused totally remained silent about the assertions made by the prosecution witnesses to prove his innocence, so there is no scope to presume the appellant to be innocent at this stage and Learned Trial Court considering the materials on record rightly found him guilty and convicted him and there is no infirmity in the judgment delivered by Learned Trial Court and accordingly Learned P.P. finally urged for dismissal of the appeal filed by the appellant in custody.
The prosecution was set into motion on the basis of a telephonic information communicated by one Sushanta Nath on 30.06.2019 at about 17.00 hours to Dharmanagar Women PS the dead body of Kanchan Bala Nath was found in her dwelling house at Gowala Basti, East Hurua. The information was entered in the GD book of the PS and after that a team of police personnel laid by O.C of the police SI Swarna Debbarma went to East Hurua to verify the information and on reaching there they saw the dead body which was lying on the bed and during preliminary inquiry it was revealed that on 30.06.2019 at about 7 a.m. one Uttam Nath who is the son of the deceased called his mother but did not get any response. Thereafter he entered in the room of his mother and called her when also she did not give any response. Thereafter Uttam Nath called his aunt and the neighboring persons and they came therein and found that Kanchan Bala Nath was died. They also found that kanpasa (ear ring) made of gold which the deceased was wearing was found to be missing. In this regard one Biswajit Debnath laid the FIR. On the basis of that Dharmanagar Women PS Case bearing No.22 of 2019 under Section 302 of the IPC was registered and after completion I.O. laid chargeshhet under Section 302/380/511 of IPC before Learned CJM, North Tripura, Dharmanagar and accordingly cognizance was taken. The case was committed and before the Court of Learned Sessions Judge and having prima facie evidence charge was framed under Section 302/380 of IPC against the accused in custody which he pleaded not guilty and claimed to be tried. To substantiate the charge prosecution in total has adduced 20 nos. of witnesses and relied upon certain documents which were marked as exhibits. The accused in custody in course of his examination under Section 313 of Cr.P.C. denied the prosecution case and denied to any witness in support of his defence.
Evidence of the Prosecution:-
As already stated, prosecution adduced 20 nos. of witnesses. PW-1, Gita Rani Nath, PW-2, Madhumala Nath, they are the relatives of the deceased. They went to the residence of the deceased and found injury marks on her body and also found that ear rings of the deceased was found missing. Similarly PW-3 and 7 also deposed in the same manner like PWs-1 and 2. PW-15, Dr. Chaitanya Reang conducted post-mortem over the dead body of the deceased along with Dr. Sudip Sukla Das and Dr. Lipika Paul and according to them the cause of death is due to asphyxia caused by throttling.
Now let us see the evidence of PW-4 who deposed that the deceased was her aunt. She died on 29.06.2019. She got information over phone and went to her house and found her dead body and also found injury marks on her neck and her ear rings were missing. She put her signature on the surathal report. She further stated that a case was lodged regarding the incident and police arrested the present accused in custody as he was found possession of the ear rings of her ‘mashi’ in a jwellery shop at Dharmanagar. After recovery of her ear rings she got information from PS and accordingly she went to PS with her cousin Shipra Rani Nath when she identified the ear rings of her mashi (aunt) and the same was seized in her presence and she identified her signature on the seizure list marked as Exbt.3/1. She also stated that at about 7 days before the death of her mashi she heard a dispute between Sanjoy Ghosh and her mashi and Sanjoy Ghosh threatened to kill her mashi and after seven days her mashi was found dead. She was cross-examined but nothing material come out.
Now, PW-5 is the FIR maker who also narrated in the same manner and deposed that he went to the residence of the deceased victim and found her dead body and so injury marks on her neck caused by nails and also found injury marks in her ears and her ear rings were missing. He laid the FIR and identified her signature marked Exbt.4.
PW-6, Sri Babul Debnath deposed that on 01.07.2019 he was posted in SP Office North Tripura, Dharmanagar and there was a canteen in the SP office and on that day at about 12 in the noon he was in the canteen and during that time a person came there to sell a gold ear ring and on seeing them he became suspicious and informed Addl. SP and then Addl. SP came and in their presence the person was interrogated when he disclosed that one woman has died and that ear rings belonged to that woman and he has stolen those ear rings. He could not say the name of the accused but identified the accused in the dock. During cross nothing came out relevant.
PW-7, Shipra Rani Nath is another seizure list witness. She also identified her signature on the seizure list in respect of seizure of ear rings marked Exbt.3/2.
PW-8, Kulendra Roy is the canteen owner. He deposed that he has got one canteen in the SP office, North Tripura, Dharmanagar. About 2 years back one day Mani of their locality approached him and told him that one person is in need of money and is trying to sell ear rings but failed. Mani asked him whether he should bring that person or not and accordingly he told him to come on the next day and on the next day Mani along with that person came to the canteen and showed him the ear rings. That time one Babul Nath who was a police personnel present there and some suspicion arose so he called Addl. S.P. then Addl. S.P. came and on interrogation Addl. S.P. took him along with ear rings to the S.P. Office. He also identified the accused in the dock. During cross nothing came out relevant.
PW-9, Sri Shyamal Das is the main material witness of this case. He deposed that he knew Sanjoy Ghosh as he worked with him as a day labourer. One day about four years back he returned back home from work and found the accused in his residence. That time he showed some gold jewellery item and asked him to purchase it. He expressed his inability to purchase it but he told him that he will talk with some other persons to purchase gold items and accordingly he talked with Kulendra Roy i.e. PW-8 who is having one canteen in the S.P. Office who told him to come in the canteen along with Sanjoy Ghosh. Accordingly he went to the canteen and showed the gold items to Kulendra Roy. That time some persons along with police personnel gathered and one person saw the gold items and he said that the said gold item belong to the woman who was murdered. The police staff informed the Addl. S.P. and then Addl. S.P. came and Sanjoy Ghosh was taken to his office. During cross also nothing came out relevant.
PW-10, Sri Dibyendu Das is the DCM in whose presence the statement of the accused was recorded while he was in custody. He also stated that in his presence the accused made the statement. He stated that the accused had a dispute with one woman of his locality and they abused each other. The woman charged him for committing theft. He further stated that on that night he went to the house of that woman and slept her initially and thereafter killed her by strangulation and that woman fell on the bed and he left the house of that woman after the incident and at the time of leaving he took away the ear rings of that woman. He also stated that he went to sell those ear rings near the SP office and there he was detained by some police personnel on suspicion. Later on, those were seized.
Other witnesses PW-11, Sushendra Ch. Nath could not say anything to the prosecution case. PW-12, Smt. Sankari Roy is the police personnel is the seizure list witness. PW-13 Smt. Bishu Rani Debbarma is the seizure list witness. PW-14, Smt. Monica Debbarma is the Sr. Scientific Officer-cum-Assistant Chemical Examiner. On 31.08.2019 he prepared the report No.SFSL 676/19/TOX/217/19 in two sheets of paper and put his signature with official seal and the specimen seal of SFSL, Tripura. He identified his signature marked as Exbt.10.
PW-16, Sri Pantu Shil conducted the video of the statement given by the accused. PW-17, Dr. Subhankar Nath, Deputy Director of TSFSL. PW-18, Sujan Debnath is also a witness of the disclosure statement. PW-19, Smt. Swarna Debbarma is the I.O. who laid the chargesheet against the accused and PW-20, Dr. Anup Goswami who collected the blood sample of the accused.
From the evidence on record it appears to us that none of the witnesses did see to commit the offence by the appellant accused in custody. The accused although made disclosure statement to the DCM in presence of witnesses but that disclosure statement is hit by Section-25 of the Evidence Act as he was in custody and that was not made in presence of any Judicial Magistrate. Now apart from that in course of argument Learned Senior Counsel tried to draw the attention of this Court that there were two sets of evidence of prosecution because PW-4 stated that the seized ear ring was recovered from a jewellery shop but other witnesses stated that ear ring was seized elsewhere i.e. from the canteen of the SP Office in presence of so many persons. Learned Senior Counsel also tried to draw the attention of the Court that prosecution did not declare said PW-4 as hostile in this case. But after going through the evidence on record it appears to us that if we carefully analyze the evidence of said PW-4 it appears that said PW-4 had no direct information from where the ear ring (kanpasha) was seized. She only stated that she heard that the same was seized from a jewellery shop. Admittedly prosecution did not declare this witness as hostile. But from her evidence it cannot be said that in her presence the same was recovered by police rather if we go through the other witnesses like PWs- 8 and 9 it is crystal clear that as to how the gold made ear ring was produced and seized by police personnel. The accused thoroughly cross-examined those material two witnesses PWs 8 and 9. But by way of cross-examination the accused in custody could not raise any single doubt to disbelieve their evidence and other witnesses of the prosecution who are the relatives or the neighbouring persons very categorically stated that they came to the residence to the deceased victim and found the dead body when they found some injury marks on her neck and to her ears and those evidence have been duly corroborated by the evidence of Medical Officer. So the submission of Learned Senior Counsel that there are two sets of evidence regarding recovery cannot be accepted as a valid defence to substantiate that the accused is innocent. As we have already discussed that there is no eye witness of the alleged occurrence of offence but from the conduct and chain of circumstances it is crystal clear that the seized ear ring belonging to the deceased was found under the possession of the accused in custody and he was detained and caught red handed and at the time of disposal to the canteen of SP office in presence of other independent witnesses which is crystal clear from the evidence of PWs-6, 8 and 9. The citations referred by Learned Senior Counsel on behalf of the accused in custody cannot be applied in this case because the facts of those cases are totally different with the present case. Thus after going through the entire evidence on record it appears to us that prosecution has been able to establish the chain of circumstantial evidence showing guilt of the accused in custody with the alleged crime and as such in our considered view Learned Trial Court considering the evidence on record and based on the presumption of Section 114A of the Indian Evidence Act rightly found the accused to be guilty with the alleged offence. Furthermore, to disprove the presumption the accused in custody could not make any reverse burden to disbelieve the evidence on record of the prosecution witnesses specifically the evidence of PWs-6, 8 and 9. Thus it appears to us that there is no merit in the appeal filed by the appellant and there is no scope to interfere and quash the judgment delivered by Learned Trial Court.
In the result, the appeal filed by the accused appellant in custody stands dismissed being devoid of merit. The judgment and order of conviction dated 04.07.2025 passed by Learned District & Session Judge, North Tripura, Dharmanagar in case No.ST(T-1) 08/2020 the appeal filed by the appellant is hereby upheld and affirmed.
Send down the LCRs forthwith along with a copy of this judgment.