Crl. A./1/2003 of Ranjit Roy Vs State Of Sikkim on 15 December 2003

JUDGMENT

A. K. pArRA

This appeal filed on behalf of the two appellants isdirected against the judgment dated 31St December, 2002 of the

i.®..,

1eamed Sessions Judge (E & N) Sikkim at Gangtok in CriminalCase No. 31 of 2001 convicting them under section 302/380/34IPC. Both of them have been sentenced to undergo rigorousimprisonment for life and to pay a fine of Rs.2,000/- (Rupeestwo thousand) each under section 302/34 IPC. They have alsobeen sentenced to undergo rigorous imprisonment for two yearsand to pay a fine of Rs.1,000/-(Rupees one thousand) each forthe offence under section 380/34 IPC. Both the sentences are torun concurrently.

2. The prosecution case is as follows:-

At the relevant time Monorama Devi (hereinafter referredto as the `deceased) was residing near Metro Point, Gangtok in arented house with her husband Lalan Prasad Pwl and two sonsRanjit PW2 and Raju PW3. In June, 2001 the deceased sub-letone room to Shibu PW4. The said room was being sharedbetween Shibu PW4 and appellant no.2 Durga Roy. In the latterpart of June, the appellant no.2 Durga Roy went to NewJalpaiguri and came back on 2nd July, 2001 with the appellantno.1 Ranjit Roy who started living in the same room withappellant no.2 Durga Roy as his guest. Both the appellantsused to take food in Hotel Diamond, Lall Market, Gangtok. On5th July, 2001 appellant no.1 Ranjit Roy received a telephonicmessage to the effect that his mother was seriously ill and heshould return home immediately. He could not go home as hehad no money. On the next day, i.e., 6th July, 2001 both theappellants in pursuance of their common intention entered theroom of the dec`eased and caused her death by strangulating her neck using a strip of cloth as a weapon of offence. They alsocommitted theft of a Sitco wrist watch belonging to Lalan PrasadPwl and cash of Rs.2,300/- and fled away to New LJalpaiguriwhere both of them arrested.

3. The plea of the appellants was one of denial.

4. The prosecution examined 16 witnesses in supportof its case. There is no eye-witness to the occurrence. Theprosecution relied on only circumstantial evidence.of its case. There is no eye-witness to the occurrence. Theprosecution relied on only circumstantial evidence.

5. The learned Sessions LJudge on the basis of thefollowing circumstances held the appellants guilty under section302/380/34 IPC :-

(i) Appellant no.2 Durga Roy brought appellant no.1Ranjit Roy from New Jalpaiguri and put him up as hisguest in the adjoining room of the deceased which waslet out to him and both of them were staying in thesame room.Ranjit Roy from New Jalpaiguri and put him up as hisguest in the adjoining room of the deceased which waslet out to him and both of them were staying in thesame room.

(ii) In the morning of the incident, both of them werepresent in the room. The dead body of the deceasedwas found lying strangulated in her room with a pieceof cloth tied around her neck. The said piece of clothwas brought by Shibu PW4 for tiding betel leaves andwas kept in the same room where he (PW4) andappellant no.2 Durga Roy were staying.present in the room. The dead body of the deceasedwas found lying strangulated in her room with a pieceof cloth tied around her neck. The said piece of clothwas brought by Shibu PW4 for tiding betel leaves andwas kept in the same room where he (PW4) andappellant no.2 Durga Roy were staying.

(iii) The Sitco wrist watch (exhibit IX) and cash ofRs.2,300/- were found missing from the room of thedeceased after the incident and the said wrist watchRs.2,300/- were found missing from the room of thedeceased after the incident and the said wrist watch was recovered from the house of appellant no.2 DurgaRoy at New Jalpaiguri at his instance.

6. PW14 is the doctor who conducted the autopsy onthe dead body of the deceased. He found the following externalinjury:

"(1) Deep grooved ligature mark 1.5 cm. wide at thelower boarder of the thyroid cartilage placedhorizontally, completely encircling the neck coveredby the two rounds of twisted ligature material."

According to the doctor, the cause of death was asphyxia as aresult of ante-mortem strangulation by ligature. He furtherstated that the deceased died quite sometime after she hadtaken meals as the food particles were in an advanced process ofdigestion and were not identifiable. The time of her death couldbe around about two hours after she took her meals. On his re-examination, the doctor further clarified that it was a case ofstrangulation because -

(1) There was sub-conjunctival haemorrhage which isusually not found in cases of suicidal hanging.

(2) The facewas suffused.

(3) The ligature mark was horizontal.

(4) There were emphysematous bullae on the puralsurfaces of both lungs which are usually found in cases ofstrangulation only.

(5) There was laceration and contusion of the tracheamucosa which is usually found in cases of strangulationonly.

He was categorical that the strangulation was ante-mortem. Healso stated as the knot of the ligature material was placedbehind the neck, the strangulation was carried out from behind.

From the above evidence, there can be no doubt that thedeceased had homicidal death. Shri Rai, learned counsel for theappellants does not dispute this position.

7. In the course of hearing of this appeal, a petitionwas filed under section 391 read with section 482 Cr.P.C. onbehalf of the prosecution praying for taking additional evidence.It was submitted that one Kakuli Biswas was not examinedalthough the prosecution tendered her as a witness to beexamined. In the disclosure statement exhibit P-6 made undersection 27 of the Evidence Act, appellant no.2 Durga Royalthough put his signature, the same was not identified. In viewof his denial in his statement recorded under section 313Cr.P.C., the said signature needs to be identified. Onconsideration of the said prayer, by order dated 19th August,2003 this Court directed the learned Sessions Judge to permitthe prosecution to re-examine Kakuli Biswas and theInvestigating Officer. In obedience to the said direction, thelearned Sessions Judge re-examined Kakuli Biswas and theInvestigating Ofricer and transmitted their evidence to thisCourt.

8. The learned counsel for the appellants vehementlycontended that so-called links forming the chain ofcircumstances have not been established satisfactorily and,therefore, the conviction- of the appellants is vitiated. ShriKhatiwada, learned Public Prosecutor on the other handcontended that the circumstances on the basis of whichconviction has been recorded are well-established.

®.

9. In view of such rival contention, let us now peruseand assess the evidence adduced on behalf of the prosecution.

Lalan Prasad Pwl is the husband of the deceased. Hestated that .on the date of incident (6th LJuly, 2001) when hereturned home around 2.30 p.in. his younger son Ranjit PW2informed him that the deceased was lying on the ground with arope around her neck. He immediately rushed to the house andfound that his wife was lying dead on the ground in one of therooms occupied by him. Thereafter, he lodged FIR exhibit P-1.In the cross-examination, it was brought out that his youngerson Ranjit PW2 had already seen the dead body before hereached the house. He also stated in his cross-examination thatRanjit PW2 and Raju PW3 are the sons from the first husband ofthe deceased. Ranjit PW2 deposed that on the date of incidenthe came home at about 2.30-3.00 p.in. and found that the doorof his mother's room was ajar. He called out his mother butthere was no response. After opening the door, he entered theroom and found that his mother was lying on the floor and herneck was tied with a piece of cloth. He thereafter went out tolook for his elder brother Raju PW3 to whom he met on the way.He informed him that her mother had been killed. In the cross-examination, he stated that Lalan Prasad Pwl is his step-father.His specific evidence is that his mother had sub-let one roomout of the three to Shibu PW4 who was working as a tailor. RajuPW3 is another son of the deceased. He identified both theappellants. He stated that his mother sub-let a room to ShibuPW4 with whom the appellants were residing. He stated that on •,.

the date of occurrence, before his departure from the house at 9a.in., he found appellant no.2 Durga Roy had used his soap aftergoing to the toilet. He asked him as to why he used that soapwhich was meant to be used for bathing. For this mistake,appellant no.2 Durga Roy apologized. At that time, appellantno.1 Ranjit Roy was also present who told him that he mighttake his soap for use. Thereafter, he (PW3) proceeded to hisduty at Jainco Book Store. He returned home just after 3 p.in.and on the way he found his brother Ranjit PW2 who informedhim about the murder of his mother. In the cross-examination,it was brought out that after he left for work at 9 a.in. hisyounger brother Ranjit PW2 also left for his work. He howevercould not say whether or not appellant no.2 Durga Roy stayed inthe house or he also left. He stated that he found out from thetailoring shop where appellant no.2 Durga Roy was working thathe had come to the shop in the morning and thereafter he hadleft. Shibu is PW4 who had taken one of the rooms on rent fromthe deceased along with appellant no.2 Durga Roy. He had keptone key of the room with him whereas appellant no.2 Durga Royhad kept another with him. On or about the first day of July,2001 appellant no.2 Durga Roy came along with appellant no.1Ranjit Roy saying that the latter was his guest. According tohim (PW4) on the date of incident, he went to Sangram Pan Shopat about 2.30-45 p.in. where he met one Dhiraj, a co-tailorworking in the Rainbow Tailoring Shop along with the appellantno.2 Durga Roy. The said Dhiraj enquired from him thewhereabouts of appellant no.2 Durga Roy as the tailor master `®.

`®.

the proved circumsta.nces should be consistent only with thehypothesis of the guilt of the accused and rule out a reasonablelikelihood of the innocence of the accused.

The Court cannot also forget the rule of caution indicatedby Baron Alderson in his charge to the jury in R. V. Hodge,(1938) 2 Law CC 227, where it was said:- "The mind was apt to take a pleasure inadapting circumstances to one another, and even instraining them a little, if need be, to force them toform parts of one connected whole; and the moreingenious the mind of the individual the more likelywas it, considering such matter, to overreach andmislead itself, to supply some little link that iswanting, to take for granted some fact consistentwith its previous theories and necessary to renderthem complete".

ZZ.On a close and careful analysis of the evidence onrecord, the following factual position emerges. On the date ofoccurrence (6th July, 2001) the husband of the deceased LalanPrasad PW1, her two sons Ranjit PW2 and Raju PW3 left leavingbehind the deceased and the appellants in the house around 9a.in. Ranjit PW2 was the first person to reach home around2.30 p.in. who found his mother's dead body strangulated with apiece of cloth exhibit IV around her neck. Therefore, thedeceased must have been done to death after 9 a.in. and before2.30 p.in. What could be the approximate time of the murder?It is in the evidence of Shibu PW4 that he along with one Dhirajcame to the house at about 2.30 p.in. to 2.45 p.in. to find out ifappellant no.2 Durga Roy was present but he found him absentand his room was locked. This witness (Shibu PW4) must havecome prior to the arrival of Ranjit PW2 because had Ranjit PW2

pr

had seen Shibu PW4 coming to their house he would havestated it in his evidence. Of course, the time given by thewitnesses may not be taken in mathematical precision. Thedoctor (PW14) who conducted post-mortem examination of thedeceased stated that time of her death could be a]-ound abouttwo hours after she took her meals.

F`rom the above circumstances at best, it can be held thatthe deceased might have been murdered soon after she took hermeals. As mentioned above, the appellants and the deceasedwere last seen in the house around 9 a.in. but both theappellants were not found in the house thereafter andabsconded till their arrest on 8th |July, 2001 (vide arrest memo)at New Jalpaiguri. Besides this, appellant no.2 Durga Roy ledthe Investigating Officer PW16 to his house at New Jalpaiguri on17th July, 2001 and gave recovery to the Sitco wrist watchexhibit IX which was found missing from the house of thedeceased. The Investigating Officer PW16 stated that theappellant no.2 Durga Roy while in custody disclosed that he hadhidden the wrist watch stolen by him from the house of thedeceased in his residence at New LJalpaiguri. Accordingly, he(appellant no.2 Durga Roy) led the Investigating Officer PW16 on17th LJuly, 2001 to his house and the wrist watch was seized onbeing produced by his mother. In the disclosure statementexhibit P-6 he had put.his signature. The said wrist watchbelonged to the husband of the deceased whose name wasetched on the underside of it both in English and Hindi.Appellant No.2 does not claim the said wrist watch to be his.

]2. At this stage, it is relevant to state that theappellants were charged under section 302/34 IPC and havebeen found guilty thereunder. To invoke the aid of section 34IPC, it is necessary that the criminal act complained against wasdone in furtherance of the common intention of all the accusedpersons. The common intention implies a prior meeting ofmind. It can also be formed suddenly at the spot. Theprosecution has not laid any evidence on this score.

So far as appellant no.1 Ranjit Roy is concerned, there isno evidence against him except that in the moming on the dateof occurrence he was present in the house of the deceased andremain absconded till he was arrested on 8th July, 2001 at NewLJalpaiguri. An act of absconding is no doubt a relevant piece ofevidence but the said act does not by itself lead to a conclusionthat he is guilty. There is no other incriminating materialagainst him to connect with the offence. The suspicion howeverstrong be cannot take the place of proof. For reasons aforesaid,we are inclined to hold that the prosecution has not been able toprove its case against appellant no.1 Ranjit Roy beyondreasonable doubt. He is, therefore, entitled to be acquitted onthe benefit of doubt.

]3. In the present case, the charge against both theappellants is specific in the sense that in furtherance of theircommon intention they Committed the murder of the deceased.With the acquittal of appellant no.1 Ranjit Roy the charge ofsharing common intention falls. It does not however mean thatappellant no.2 Durga Roy can also secure acquittal. There is no `.e.

was looking for him. PW4 told Dhiraj that he might be in hisroom and accordingly took him there and found that he(appellant no.2 Durga Roy) was not there and the room waslocked. He stated that exhibit IV (piece of cloth which was tiedon the neck of the deceased) was brought by him with which hetied one bundle of betel leaves and kept it in the room where hewas staying along with appellant no.2 Durga Roy. He furtherstated that he had seen appellant no.1 Ranjit Roy but he did notactually know him. This witness (PW4) was also arrested inconnection with the case. That is the reason perhaps he statedin his cross-examination that appellant no.2 Durga Roy used tosleep in his tailoring shop and in the night preceding the date ofoccurrence he was not present in the room and he had not methim on the date of occurrence. PW5 deposed that his wifeinformed him that he saw both the appellants going on the roadand they told her that they were going to their home. PWs 6 and7 are witnesses to seizure of certain articles. PW8 is the ownerof a hotel called `Diamond' at Lall Bazar, Gangtok. He identifiedboth the appellants and stated that they had madearrangements with him to eat food in his hotel on a weeklypayment basis. PW9 is also a seizure witness. PWIO is a formalwitness who deposed that he knew the deceased who wasresiding in the floor below his rented accommodation. He alsodeposed about seizure of certain articles. Brijkishore PrasadPWll stated that on the request of Officer-in-charge, SadarPolice Station he accompanied him to New LJalpaiguri.Appellant no.2 Durga Roy also proceeded with them who led

them to his house at New Jalapigui.i. I-[e stated that when theywere standing outside his house, his mother brought the wristwatch (exhibit IX) and handed over the same to the Ofricer-in-charge. He (PWll) was also a witness to disclosure statementexhibit P6 said to have been made by appcllant. no.2 Durga Royunder section 27 of the Evidence Act. In his cross-examination,he admitted that he could not say whether the woman who cameout of the house and handed over the wrist watch was themother of appellant no.2 Durga Roy. He further stated that thesaid appellant did not disclose anything or gave any statementincluding exhibit P6 in his presence. PW12 is another suchwitness who accompanied the Officer-in-charge to NewJalpaiguri. He stated about the production of the wrist watchexhibit lx by the mother of appellant no.2 Durga Roy. He was awitness to disclosure statement exhibit P6 prepared by theInvestigating Ofl-leer. He also stated that appellant no.2 DurgaRoy did not make any statement in his presence. Kakuli BiswasPW13 was in coiirsc of trial was tendered by the prosecution butshe was not examined. As already stated, on the prayer madeby the prosecution before us for taking additional evidence, shecame to be examined. She in her re-examination stated thatshe knew appellant no.2 Durga Roy. She stated that herhusband works as a tailor in one of the tailoring shops at LallBazar, Gangtok where app€llanl no.2 Durga Roy was alsoworking. She also identifi.ed a.ppellant no.1 Ranjit Roy as hevisited her residence along with appellant no.2 Durga Roy butshe did not know his name. She ful.ther stated that about two -®.

and half years back when she was standing at the top of thebuilding and looking down, she found both the appellants going.They told her that they were proceeding to their house at NewJalpaiguri. In the cross-examination, she stated that day was4th of July. She asserted that she remembered that day becauseon that day she performed the puja in her residence tocommemorate the annual death anniversary of her father-in-law. This being her evidence, it is of no use to the prosecutioninasmttch the occurrence took place not on 4th July, 2001 but on6th July, 2001. PW14 is the doctor who conducted the post-mortem examination on the dead body of the deceased. PW15 isthe owner of Rainbow Tailoring Shop at Lall Bazar, Gangtok. Hedeposed that appellant no.2 Durga Roy was working as a tailorin his shop. He stated that in 2001 he had gone to his house atNew Jalpaiguri on leave and returned after a week. After joiningthe duty for one day he did not report for duty from the next dayonwards. PW16 is the Investigating Ofricer. This witness wasre-examined on the direction of this Court who identified thesignature of appellant no.2 Durga Roy in the disclosurestatement exhibit P6.

]0. Admittedly, there is no eye witness to theoccurrence. The conviction of the appellants is based purely oncircumstantial evidence. It is now well-settled that in a casefounded on solely circinmstantial evidence each and everyincriminating circumstance should be clearly proved by reliableand clinching evidence and all the circumstances so establishedshould form a chain of events without leaving any gap. Further, ©

legal bar to convict him under the substantive provision if on thebasis of evidence it could be held that he was the author of thecrime.

Let us, therefore, examine his case separately. As alreadystated, he was found in the house of the deceased in themorning on the date of occurrence. In the said house, no otherinmate was present except the deceased. He was a co-tenantalong with Shibu PW4 in respect of one room belonging to thedeceased. Shibu PW4 deposed that he had gone to the house ofthe deceased at 2.30 p.in. to 2.45 p.in. to find out if he waspresent in his room but he did not find him and his room waslocked. He had not returned to his room since then andremained absconded till he was arrested on 8th LJuly, 2001. Hegave recovery to the Sitco wrist watch which was found missingon the date of occurrence. Having regard to the abovecircumstances, we have no hesitation to hold that he (appellantno.2 Durga Roy) after committing the murder of the deceasedalso committed the theft of the wrist watch exhibit IX. He is,therefore, clearly guilty of offences punishable under sections302 and 380 IPC. The conviction recorded by the learnedSessions Judge under sections 302/380/34 IPC is herebyconverted to one under sections 302 and 380 IPC.

]4. In the result, the conviction and sentence of theappellant no.1 Ranjit Roy under sections 302/380/34 IPC arehereby set aside. He is acquitted of the charges. He may be setat liberty forthwith if his detention is not required in any othercase. Appellant no.2 Durga Roy is hereby convicted under I

fa'

sections 302 and 380 IPC. The sentences imposed against him by the learned Sessions Judge on both the counts stand confirmed. The appeal is thus allowed in part.

N.+`cifeTTiN."SUE:[_E-]manl Stngh )Jfedge15.12.2008

( R. K.[i::ic,l^]Chiof ±1ce15.12.ZOOS