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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 = CRIMINAL APPEAL NO. 1010 OF 2004 Durga Burman (Roy) … Appellant (s) Versus State of Sikkim … Respondent (s) = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41798

 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.

 

2014 July. Part – http://judis.nic.in/supremecourt/filename=41798

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