Sec. 302, 308 r/w 34 of I.P.C. -Circumstantial Evidence not proved – Sec.27 of Evidence Act recovery at the instance of accused not proved- Abscond not proved- common intention not established – two accused – trial court convicted both accused – Appellant court acquitted Accused No.1 and convicted only Accused No.2 as the wrist watch was collected from his house – Apex court held that theory of theft for committing murder – not the case of Prosecution witnesses as no body complained about theft – it is only case of I.O. –all the gold ornaments are not removed from the body of deceased – so theory of theft is false one- mere left for their native village does not amounts to abscond as admittedly the accused were arrested in their village – mere presence in the morning in a rented house , there is nothing to disclose who killed the deceased in a house after all left for their respective duties – Recovery of wrist watch after 10 days at the instance of accused No.2 is also wrong procedure adopted as the wrist watch was handed over by the mother of the accused No.2 but not from any hidden place – non- examination of mother of accused – hostile of seizer witnesses and another witness who alleged that the accused left for some other village – No chain proved – Acquitted the accused and allowed the appeal =
In appeal, the High Court of Sikkim, by judgment dated 15.12.2003,
acquitted the first accused Ranjit Roy for the following reasons:
“12. At this stage, it is relevant to state that the appellants were
charged under section 302/34 IPC and have been found guilty thereunder.
To
invoke the aid of section 34 IPC, it is necessary that the criminal act
complained against was done in furtherance of the common intention of all
the accused persons.
The common intention implies prior meeting of mind. It
can also be formed suddenly at the spot. The prosecution has not laid any
evidence on this score.
So far as appellant no.1 Ranjit Roy is concerned, there is no
evidence against him except that in the morning on the date of occurrence
he was present in the house of the deceased and remain absconded till he
was arrested on 8th July, 2001 at New Jalpaiguri.
An act of absconding is
no doubt a relevant piece of evidence but the said act does not by itself
lead to a conclusion that he is guilty.
There is no other incriminating material against him to connect with the offence.
The suspicion however strong be cannot take the place of proof.
For reasons aforesaid, we are
inclined to hold that the prosecution has not been able to prove its case
against appellant no.1 Ranjit Roy beyond reasonable doubt.
He is,
therefore, entitled to be acquitted on the benefit of doubt.”
(Emphasis supplied)
However, in the case of second accused-appellant herein, it was held by the
court as follows:
“13. In the present case, the charge against both the appellants is
specific in the sense that in furtherance of their common intention they
committed the murder of the deceased.
With the acquittal of appellant no.1
Ranjit Roy the charge of sharing common intention fails.
It does not
however mean that appellant no. 2 Durga Roy can also secure acquittal.
There is no legal bar to convict him under the substantive provision if on
the basis of evidence it could be held that he was the author of the crime.
Let us, therefore, examine his case separately.
As already stated, he
was found in the house of deceased in the morning on the date of
occurrence.
In the said house, no other inmate was present except the
deceased.
He was a co-tenant along with Shibu PW4 in respect of one room
belonging to the deceased.
Shibu PW4 deposed that he had gone to the house
of the deceased at 2.30 p.m. to 2.45 p.m. to find out if he was present in
his room but he did not find him and his room was locked.
He had not
returned to his room since then and remained absconded till he was arrested
on 8th July, 2001.
He gave recovery to the Sitco wrist which was found
missing on the date of occurrence.
Having regard to the above
circumstances, we have no hesitation to hold, that he (appellant no.2 Durga
Roy) after committing murder of the deceased also committed the theft of
the wrist watch exhibit IX.
He is, therefore, clearly guilty of offences punishable under sections 302 and 380 IPC.
The conviction recorded by the
Sessions Judge under sections 302/380/34 IPC is hereby converted to one
under sections 302 and 380 IPC.”
Apex court held that
The conviction of the
appellant is by placing reliance solely on the recovery of the wrist watch.
We have already held above that, it is faulty in procedure and, apart from
that, the same does not infuse any confidence in the mind of the Court in
the given circumstances, when pitted against the rest of the evidence, that
the appellant committed the murder with the motive of theft. It is not
enough that the circumstances lead to possibility or probability of the
involvement of the accused; the circumstances should point all the fingers
to the accused and the accused only. That is not the situation in this
case. The circumstances can lead to many other inferences. The chain is
also not complete. The first accused, who according to the prosecution is
the perpetrator of the offence under Section 302 IPC, has been acquitted.
The State has not filed an appeal against the acquittal. It is a case of
Sections 302, 380 read with Section 34 IPC. The whole theory of the
prosecution is that it is the first accused who has been acquitted by the
High Court, who tied the piece of cloth on the neck of the deceased and
strangulated her. The only piece of shaky evidence against the appellant is
of recovery of the wrist watch of PW1 from and through the mother of the
appellant. She was not examined. There is no explanation as to how despite
the availability of the appellant, the recovery is effected through his
mother. There is no explanation for the delay of about ten days in
effecting recovery. The witnesses have not supported the disclosure
statement or the seizure. The owner of the wrist watch-PW1 does not have a
case that his wrist watch had been stolen by the appellant. That version is
not also supported by the children of the deceased. They have no case of
theft of wrist watch or cash.
In such circumstances, we have no hesitation in holding that the
prosecution has miserably failed in proving the case against the appellant
and the appellant is entitled to succeed. The appeal is allowed. The
conviction of the appellant under Section 302/380 IPC is set aside. He
shall be released forthwith in case he is not required to be detained in
connection with any other case.
advocatemmmohan 
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