[2010) 3 S.C.R. 271

JITEN BESRA

STATE OF WEST BENGAL (Criminal Appeal No. 1499 of 2007)

MARCH 10, 2010

[V.S. SIRPURKAR AND SURINDER SINGH NIJJAR, JJ.]

Penal Code, 1860 - s.302 - Appellant convicted by Courts below for killing his parents-in-law - On basis of circumstantial evidence viz. i) enmity of appellant with his C parents-in-law; ii) blood stains on clothes of appellant and iii) presence of appellant in the village of deceased on the fateful night - Conviction challenged - Held: Circumstances of the case did not point out towards the guilt of appellant, without any other inference being probable - Evidence of PWs D suggests that appellant was on visiting terms with his parentsin-law, hence, circumstance of enmity cannot be relied upon as an incriminating circumstance - Circumstance of blood stains on clothes of appellant is of no consequence since clothes of appellant or deceased persons were never sent to E Forensic Science Laboratory - Mere presence of appellant in the village also not an incriminating circumstance, particularly, when he was on visiting terms with his parentsin-law - Appellant entitled to get benefit of doubt - Hence, acquitted - Evidence - Circumstantial evidence - F Appreciation of.

According to the prosecution, the appellant killed his parents-in-law. The prosecution examined, in all, 15 witnesses which included PW1 (appellants' wife), PWs 2 to 13(persons from the locality), PW14 (the doctor who G conducted post-mortem of the dead bodies) and PW15 (the Investigating Officer). The trial court convicted appellant by placing reliance upon the evidence of - prosecution witnesses and the circumstantial evidence 271 H

A viz. (i) presence of appellant in the village of deceased on the fateful night; (ii) strained relationship of appellant with his parents-in-law; and (iii) blood stains on the clothes of appellant. The High Court affirmed the conviction of the

appellant. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1. Benefit of doubt is given to the accusedappellant and he is acquitted of all the charges. [Para 9)

[279-E]

2.1. PW-1, the author of the FIR, had barely stated about the strained relationship of her and her husband i.e. the accused-appellant as also between her deceased parents and the accused. According to her, she had seen

0 her husband to be present after she came back and realized that her parents were done to death. She also asserted that his clothes were blood stained at that time.

Very strangely, however, in the FIR which she made almost immediately, PW1 had stated that one unknown person had committed the murder of her parents. She E also admitted that the FIR was written in her house' and a number of persons were present there, including the accused. This was a very important piece of evidence, the relevance of which does not seem to have been realized by the Courts below. Even as regards the so-called F enmity, which is one of the circumstances held against the accused, she admitted that she could not remember any mis-behaviour committed by the accused towards her. From her cross-examination, it is clear that the accuse"<! was on visiting terms to her. This does not G suggest" in any manner that there was such a fierce enmity between the accused and the deceased persons or even PW1. [Para 6) [277-A-E]

2.2. The evidence of other witnesses like PW-2 is of H no consequence. He is silent on the question of any

enmity. In fact he appears to be a scribe of the FIR. He A also admitted that the accused was present when the FIR was being written. However, he did not assert anything regarding the so-called,' enmity of the accused with the deceased persons. All that he has asserted was that the accused had strained relationship with his wife and his B parents-in-law. The evidence of PW-3 only asserted that the clothes of the accused were soaked in blood and the relationship between the accused and his wife and his parents-in-law were strained. To the same extent is the evidence of PWs 4 to 13. Beyond saying that the relations c were strained and further that the clothes of accused were blood stained, all these witnesses have stated nothing more. None of them has, however, stated that the accused was not even on visiting terms. On the other hand, their evidence suggests that the accused was on 0 the visiting terms. Therefore, the first circumstance of enmity relied upon by the Courts below hardly cuts any ice. In fact, that could not have been relied upon as an incriminating circumstance at all. It may be that the accused might be having strained relationship with the wife and her parents but it is clear that he was on visiting terms with them. He was working in some other village which is hardly about 15 kms. away from their village.

Under such circumstances, t~~

1 Courts should have weighed the circumstance as tb whether the strained relationship was of such fierce nature that the accused would go to the extent of committing murder of both the parents-in-law. [Para 6] [277-E-H; 278-A-D]

3. As regards the blood stains on the clothes of the accused, this circumstance is of no consequence for the G simple reason that the clothes

1of the accused were never sent to the Forensic Science Laboratory. That is the fact clearly admitted by PW-15; the Investigating Officer.

Therefore, the origin of the so-called blood allegedly found on the clothes of the accused was not known nor H

A was it established that it was the blood of the deceased that was allegedly found on the Lungi of the accused.

This witness also admitted that initially PW-1 did not say anything against the accused person and it was only subsequently that she amended her statement and B complained against the accused which statement was much later. Once it is established that the clothes of the accused or deceased persons were never sent to the Forensic Science Laboratory, it is clear that nobody knew the blood group of the accused or of the deceased c persons. Under such circumstances, that circumstance

loses all its significance. [Para 7) [278-E-H]

4. The last circumstance relied upon by the Courts was th1.. presence of the accused' in the house. There is no evidence collected by the prosecution that the D accused alone was present in the hut. On the other hand, it has clearly come in the cross-examination of the witnesses that his parents-in-law were not alone in the hut and in fact the younger brother of PW1 was also present there. This is apart from the fact that the mere E presence of the accused in the village by itself cannot amount to an incriminating circumstance, particularly, when the witnesses have admitted that he was on the visiting terms with his parents-in-law. At least no witness denied that he was on the visiting terms. Thus, in this F case all the alleged incriminating circumstances could not be said to have been established. Once that was clear and once it is found that the circumstances could not point out towards the guilt of the accused, without any other inference being probable, the accused must get the G benefit of doubt. There is hardly any discussion regarding this aspect in the judgments of the Trial Court as well as the High Court. Those judgments, therefore, cannot be sustained. [Para 8) [279-A-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal H No. 1499 of 2007.

From the Judgment & Order dated 3.1.2007 of the High A Court at Calcutta in C.R.A. No. 287 of 2003.

Dr. Vipin Gupta and Subhadra Chaturvedi (AC.) for the Appellant.

Avijit Bhattacharjee, Subrata Biswas for the Respondent.

The Judgment of the Court was delivered by

V.S. SIRPURKAR, J. 1. By this appeal, accused Jiten Besra challenges the judgment of the High Court confirming the C judgment of the Trial Court whereby he was convicted for the offence under Section 302, IPC and was consequentially sentenced to suffer rigorous imprisonment for life. The accused Jiteh Besra is said to have committed murder of one Nandlal Tudu and Mital Bala. The deceased Nandlal Tudu was none else but the father-in-law of the accused, being father of Malati D Besra, his wife. It is contended by the prosecution that on the fateful day, Malati along with her mother had gone to attend 'Bbul Song' and she was also accompanied by her sister Parbati. When they came back at dawn on 21.05.1997, they found that both her parents i.e. Nandlal and Mital Bala were E dead.

2. A written complaint was lodged by Malati in Baro Police Station wherein it was alleged that one unknown miscreant might have killed her parents out of previous enmity. The F investigation ensued on the basis of this First Information Report and the investigating agency came to the conclusion that it was appellant Jiten Besra who was the perpetrator of the crime. In support of it, the charge-sheet was filed and aftr the committal of the case to the Sessions Judge, during the trial, G the proscution examined, in all, 15 witnesses which included Malati (~W-1), PWs-2 to 13, who were persons from locality, Partha Sarathi Dhar (PW-14), the doctor who conducted the , I postmortem of the bodies of the deceased persons and Ram Narayan Datta (PW-15) who was the Investigating Officer. The H

A defence of the appe.llant was that he was being falsely

implicated and there was no evidence against him whatsoever.

3. The defence did not prevail and the accused came '.to be convicted by the Trial Court relaying on the evidence of ti/le

8 prosecution witnesses. The High Court dismissed the appeal

and that is how the appellant is before us.

4. A glance at the High Court and the Trial Court judgments suggests that the Trial Court had relied on few circumstances as also the evidence of the prosecution witn, esses. The C circumstances relied upon are:

(i) the presence of Jiten Besra in the village on the fateful night;

(ii) strained .relationship with his parents-in-law; and

(iii) the blood found on clothes.

The same three circumstances have been relied upon by the High Court also. We must hasten to add that the E circumstances on which the Trial Court and the High Court have

relied upon are not clearly stated nor do we find any discussion on one very important aspect that in case of the circumstantial evidence the circumstances relied upon must be proved first and should nt only point towards the guilt of the accused but they should-be of suh nature that no other inference except the F guilt of the accused, is possible thereupon. We have, therefore, to examine the evidence ourselves from that angle.

5. Learned counsel appearing on oehalf of the appellant has contended that even if all the three circumstances are taken G to be proved, such inference of the guilt on the part of the accused is not possible. The contention raised is that both the Courts below have erred firstly, in relying upon the unproved circumstances and secondly, even the witnesses examined

including Malati were not sufficient to reach the only conclusion H regarding the guilt of the accused.

6. The first witness Malati (PW-1) had barely stated about A the strained relationship of her and her husband i.e. the accused as also between her deceased parents and the '0ccused. This witness was the authQJ of the FIR. According to her, she had seen her husband to be present after she came back and realized that her parents were done to death. She also asserted that his clothes were blood stained at that time. Very strangely, however, in the First Information Report which she made almost immediately, she had stated that one unknown person had committed the murder of her parents. She also admitted that

the FIR was written in her house and a number of persons were c present there, including the accused. This was a very important piece of evidence, the '.relevance of which does not seem to have been realized by the Courts below. Even as regards the so-called enmity, which is one of the circumstances held against the accused, she admitted that $he could not remember any 0 mis-behaviour committed by the accused towards her. From

I her cross-examination, it is thar that the accused was on ' visiting terms to her. This doe$ not suggest in any manner that there was such a fierce enmity between the accused and the deceased persons or eve~ Malati. The evidence of other E witnesses like Santosh Baskey (PW-2) is of no consequence.

He is silent on the question of any enmity. In fact he appears to be a scribe of the FIR. He also admitted that the accused was present when the FIR was being written. However, he did not assert anything regarding the so-called enmity of the accused with the deceased persons. All that he has asserted was that the accused had strained relationship with his wife and his parents-in-law. The evidence of Panchanan Baskey (PW-

3) only asserted that the clothes of the accused were soaked in blood and the relationship between the accused and his wife

and his parents-in-law were strained. To the same extent is the G evidence of Binod Mandy (PW-4), Laxmi Hansda (PW-5), Sarbeswar Besra (PW-6), Balaram Baskey (PW-7) Haripada Murmu (PW-8), Jagari Tudu (PW-9), Ukil Tudu (PW-10) Khudiram Hembram (PW~11), Hapan Hembram (PW-12) and H

A Durgacharan Hansda (PW-13). Beyond saying that the relations

were strained and further that the clothes of accused were blood stained, all these witnesses have stated nothing more. None of them has, however, stated that the accused was not even on visiting terms. On the other hand, their evidence suggests B that the accused was on the visiting terms. Therefore, the first circumstance of enmity relied upon by the Courts below hardly cuts any ice. In fact, that could not have been relied upon as an incriminating circumstance at all. It may be that the accused might be, having strained relationship with the wife and her c parents but it is clear that he was on visiting terms with them.

He was workil'lg in some other village which is hardly about 15 kms. away from their village. Under such circumstances, the Courts should 1, have weighed the circumstance as to whether

te strained relationship was of .such fierce nature that the

0 apcused would go to the extent of committing murder of both the parents-in-law.

7. As regards the blood stains on the clothes of the accused, this circumstance is of no consequence for the simple reason that the clothes of the accused were never sent to the E Forensic Science Laboratory. That is the fact clearly admitted by PW-15, Ram Narayan Datta who was the Investigating Officer. Therefore, the origin of the so-called blood allegedly 'found Oh the clothes of the accused was not known nor was it , established that it was the blood of the deceased that was F allegedly found on the Lungi of the accused. This witness also

admitted that initiallyMalati (PW-1) did not say anything against

te acgised person and it was only subsequently that she amended her statement and complained against the accused which statement was much later i.e. on 24.05.1997. Once it is G established that the clothes of the accused or deceased persons were never sent to the Forensic Science Laboratory, it is clear that nobody knew the blood group of the accused or of the deceased persons. Under such circumstances, that circumstance loses all its significance.

8. The last circumstance relied upon by the Courts was the A presence of the accused in the house. There is no evidence collected by the prosecution that the accused alone wa~ present .

in the hut. On the other hand, it has clearly come in the crossr examination of the witnesses that his parents-in-law were not alo.1e in the hut and in fact the younger brother.of Malati was B also present there. This is apart from the fact that the mere presence of the accused in the village by itself cannot amount to an incriminating circumstance, particularly, when the witnesses have admitted that he was on the visitllig terms with his parents-in-law. At least no witness denied that he was on c the visiting terms. Thus, in this case all the alleged incriminating circumstances could not be said to have been established.

Once that was clear and once it is found that the circumstances could not point out towards the guilt of the accused, without any other inference being probable, the accused must get the 0 benefit of doubt. There is hardly any discussion regarding this aspect in the judgments of the Trial Court as well as the High Court. Those judgments, therefore, cannot be sustained.

9. Accordingly, we allow the appeal giving the benefit of doubt to the accused and acquit him of all the charges. He be E set at liberty forthwith unless required in any other offence.

B.B.B.

Appeal allowed.