Supreme Court of India
DURGA BURMAN (ROY)versusSTATE OF SIKKIM
- Citation
- 2014 INSC 511
- Decided
- 31 July 2014
- Disposal
- Appeal(s) allowed
- Bench
- MADAN B LOKUR
Holding
The prosecution failed to prove the appellant's guilt beyond reasonable doubt, and the conviction under Sections 302 and 380 IPC is set aside.
Summary
The appellant Durga Burman (Roy) was charged with the murder of Manorama Devi by strangulation and the theft of a wrist‑watch and cash, together with co‑accused Ranjit Roy. The trial court convicted both under IPC ss.302, 380 and 34; the High Court acquitted Ranjit Roy but upheld Durga Roy's conviction. On appeal, the Supreme Court examined whether the circumstantial evidence—chiefly the recovery of the watch from the appellant's mother—established the appellant’s guilt beyond reasonable doubt and whether a complete chain of circumstances existed. The Court held that the prosecution failed to lay a foundation for an effective case, the chain of circumstances was broken, and the recovery of the watch was procedurally defective and unreliable. Consequently, the conviction under ss.302 and 380 IPC was set aside and the appellant was released.
Issues considered
- The adequacy of circumstantial evidence to sustain a conviction for murder and theft.
- Whether the chain of circumstances was complete and pointed exclusively to the appellant.
- The admissibility and reliability of the wrist‑watch recovery under Section 27 of the Evidence Act.
- Whether common intention under Section 34 IPC can be proved after the acquittal of the co‑accused.
- Whether the prosecution proved the appellant's guilt beyond reasonable doubt.
Legislation cited
- Indian Evidence Act, 1872s. 27
- Indian Penal Code, 1860s. 302, s. 34, s. 380
Subjects
murdercircumstantial evidencecommon intentionSection 34 IPCSection 302 IPCSection 380 IPCevidence admissibilityrecovery of stolen propertyacquittal of co‑accusedburden of proof
Judgment
[2014] 8 S.C.R. 311
DURGA BURMAN (ROY)
v.
STATE OF SIKKIM
(Criminal Appeal No.1010 of 2004)
JULY 31, 2014
[MADAN B. LOKUR AND KURIAN JOSEPH, JJ.]
Penal Code, 1860 - ss.302, 380 rlw s. 34 - Murder -
Caused due to strangulation by ligature - Wrist watch stolen
from the house of deceased - Case set up only on
circumstantial evidence - Two accused including the
appellant - Trial Court convicted both the accused - High
Court upheld conviction of appellant but acquitted the other
accused - On appeal, held: The prosecution failed to lay
foundation for effective prosecution and it was not proved
beyond doubt that appellant had committed the murder - 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 was not the situation in this case -
The chain was also not complete - The other accused, who
according to the prosecution was perpetrator of the offence
u/s.302 /PC, had been acquitted by the High Court- The State
did not file appeal against the acquittal - The only piece of
shaky evidence against the appellant was of recovery of the
wrist watch of PW1 from and through the mother of the
appellant - She was not examined - No explanation as to how
despite the availability of appellant, the recovery was effected
through his mother - No explanation for delay of about ten
days in effecting recovery - Witnesses did not support the
disclosure statement or the seizure - Owner of the ,wrist watch-
PW1 (husband of deceased) did not have a case that his· wrist
watch had been stolen by the appellant- That version not also
supported by children of the deceased - They had no case
311
312 SUPREME COURT REPORTS [2014] 8 S.C.R.
A of theft of wrist watch or cash - Prosecution miserably failed
in proving case against the appellant - Conviction of appellant
u/ss.3021380 /PC therefore set aside.
The prosecution case was that in furtherance of their
common intention, the appellant along with one other
8
accused 'R' murdered a woman by putting a strip of cloth
around her neck and then strangulating her; and that
thereafter they stole a wrist watch and some cash from
the house of the deceased. The Sessions Court
convicted both the accused under Section 3021380134
C IPC. In appeal, the High Court acquitted 'R' but upheld the
conviction of appellant. Hence the present appeal.
Allowing the appeal, the Court
0 HELD:1.1. In the in,stant case, none of the
circumstances by itself would lead to the irresistible
conclusion that the appellant is the aut'1or--Of tile crimes
under Sections 302 and 380 IPC. On the basis of the
evidence, it is extremely difficult to hold that the
E prosecution has laid a foundation for an effective
prosecution and has proved beyond doubt that it is the
appellant who committed the murder. This case is set up
only on circumstantial evidence. All the circumstances
should lead to, without breaking the chain, the
involvement of the accused and the accused only. On the
F only ground that the accused was seen with the
deceased in the morning of the date of incident and that
they were not seen in that place for another two days,
cannot, by themselves, lead to the conclusion that it is
the appellant who authored the crime. [Paras 9, 13] [321-
G C; 323-8, C]
1.2. 'To abscond' means, go away secretly or illegally
and hurriedly to escape from custody or avoid arrest. It has
come in evidence that the accused had told others that
H they were going from their place of work at Gangtok to their
DURGA BURMAN (ROY) v. STATE OF SIKKIM 313
home at New Jalpaiguri. They were admittedly taken into A
custody from their respective houses only, at New
Jalpaiguri on the third day of the incident. Therefore, it is
difficult to hold that the accused had been absconding.
Even assuming for argumentsake that they were not seen
at their work place after the alleged incident, it cannot be B
held that by itself an adverse inference is to be drawn
against them. [Para 14) [323-D-F]
1.3. If the motive for the accused in committing the
murder was theft, it is again difficult to understand why
the accused did not remove any ornaments worn by the C
deceased. Hence, the prosecution version regarding the
motive also, is shaken. [Para 15) [324-C-D]
1.4. The evidence available on record would on the
contrary give an indication that theft is a story of the 0
investigation officer only. Neither PW1 whose wrist watch
is said to be stolen nor the sons of the deceased-PWs 2
and 3 have any case of the alleged theft of wrist watch
or cash. The recovery is also doubtful. There is no.
consistent version of the recovery. The person from E
whom the recovery has been effected, viz., the mother of
the appellant, has not .been examined. Despite the
availability of the appellant, the recovery is through his
mother. There is no explanation as to how she got to
watch. [Para 16) [324-E, F]
F
1.5. No doubt, there are only two accused and they
have been charged under Sections 302/380/34 IPC and
one of them has been acquitted. That by itself is not a
ground to acquit the co-accused, in case there is
independent evidence. But in the absence of such G
independent evidence, the accused could succeed on
that ground. [Para 17) [325-C-D]
Sunil Kundu v. State of Jharkhand 2013 (5) SCR 924
H
314 SUPREME COURT REPORTS [2014] 8 S.C.R.
A :(2013) 4 SCC 422 and Madhu v. State of Kera/a 2012 (2)
SCR 986:(2012) 2 sec 399 - relied on.
S.K. Yusuf v. State of WB. 2011 (8) SCR 83: (2011) 11
SCC 754; Krishna Govind Patil v. State of Maharashtra 1964
B SCR 678: AIR 1963 SC 1413; Amrita alias Amritlal v. State
of M.P. (2004) 12 SCC 224 and Raja v. State 2013 (9) SCR
230: (2013) 12 sec 674 - referred to. .
2. In the instant case, the conviction of the appellant
is by placing reliance solely on the recovery of the wrist
C watch. 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
D 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
E 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
F 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
G 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
H
DURGA BURMAN (ROY) v. STATE OF SIKKIM 315
watch-PW1 does not have a case that his wrist watch had A
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, the prosecution has miserably failed in
proving the case against the appellant and the appellant B
is entitled to succeed. The conviction of the appellant
under Section 302/380 IPC is set aside. [Paras 20, 21] [326~
F-G; 327-A-F]
Case Law Reference :
c
2013 (5) SCR 924 relied on Para 14
2011 (8) SCR 83 referred to Para 14
2012 (2) SCR 986 relied on Para 15
D
1964 SCR 678 referred to Para 17
(2004) 12 sec 224 referred to Para 18
2013 (9) SCR 230 referred to Para 19
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal E
No. 1010 of 2004
From the Judgment and Order dated 15.12.2003 in
Criminal ~ppeal No.1 of 2003 of the Division Bench of the High
Court of Sikkim. F
Anand, Rajshree N. Reddy, Sushil Balwada for the
Appellant.
!
I
Yusuf Khan, Aruna Mathur (for Arputham Aruna & Co.) for
·the Respondent. G
The Judgment of the Court was delivered by
KURIAN, J.: 1. Appellant is the second accused in
Criminal Case No. 31 of 2001 on the file of the Sessions Judge,
Sikkim at Gangtok. He was charged along with one Ranjit Roy H
316 SUPREME COURT REPORTS [2014) 8 S.C.R.
A under Sections 302, 380 read with Section 34 of the Indian
Penal Code (45 of 1860) (hereinafter referred to as 'IPC').
According to the prosecution:
"These two accused persons were already in need of
money for their expenses as Durga Roy (Burman) had
B already borrowed much cash from his master Sujit Basak
before completing his works and he had nothing to get
from his master for few days. The money problem became
more serious when on 5.7.2001 the accused person
received telephonic call from the father of Ranjit Roy stating
c that his mother is seriously ill at home and he should return
home immediately. That night both the accused persons
slept late discussing about their monetary problems. Next
day (i.e. 6.7.2001) in the morning, Ranjit Roy went to the
rented room. Shibu Barman had already left for his job.
D After some time Durga Roy (Barman) also arrived in the
room. Both of them were under the strong impression that
Lalan Prasad had enough money in his house as he was
engaged in lottery business and both his sons were also
working. Therefore, the two accused persons made a plan
E to steal money from Lalan Prasad's house as he was
already left for job.
The accused persons had hot discussion with Raju Kumar,
elder son of deceased in connection with use of bathing
soap for toilet purposes. By 0900 hrs, both the sons also
F left for their daily works. Then only the deceased
Manorama Devi remained in the house besides the two
accused persons. The two accused persons decided to
kill the deceased Manorama Devi in order to steal money
from her house as she was the only person present in the
G house. Deceased Manorama Devi was inside the room
of her sons when accused Durga Roy (Barman) pretended
to talk to her, thereby diverting her mind. At that moment,
the other accused Ranjit Roy came from his room bringing·
a strip (sic) of cloth and quietly went behind the deceased
H Manorama Devi and on getting the opportunity, the aced.
DURGA BURMAN (ROY) v. STATE OF SIKKIM 317
[KURIAN, J.]
Ranjit Roy quietly put the strip round the neck of the A
deceased and strangulated her. As the victim became
unconscious, he encircled the ligature twice on her neck
and tightly made a knot on the back of the neck (sic) as a
result she died on the spot due to strangulation by ligature.
Then leaving the dead body on the floor, the accused B
persons searched !he house and took away one wrist
watch "SITCO" and cash Rs.2300/- and fled away from
P.O. At about 1200 hrs, the accused persons were seen
by one Mrs. Kakulay Biswas w/o. Parusotham Biswas, at
Tenzing and Tenzing, Gangtok going towards Deorali side. c
Accused Durga Roy, who was known to her, told her that
they were going home. Then they never came back to
Gangtok."
(Emphasis supplied)
D
2. It is thus further case of the prosecution that the appellant
herein made Exhibit P6-disclosure statement while in custody
on 12.07.2001:
"My true statement is that on 6/7/01 Friday that the Watch E
which I had stolen after murdering the Lottery Seller's wife, I have
kept the same in NJP. I can hand over the said Watch to Police.
I have kept the said Watch in homes at NJP.
Sd/-
(illegible) F
Accused Durga Roy
Witness
(1) BRIJ Kl SHORE PRASAD,
S/o. Ram Janam Prasad
Basantpur Near Police G
Station Dist. Sewan, Bihar,
A/P. R.N, Chamling Building Sd/-
M.G. Marg, gangtok, Brij Kishore Prasad
Occupation : Lottery Agent. Ext.P-6(a)
H
318 SUPREME COURT REPORTS [2014] 8 S.C.R.
A (2) TASHI TSHERING BHUTIA
S/o. Tensang Bhutia Sd/-
Dalep Busty, Kewzing SJ (E/N)
South Sikkim Gangtok
B
A/P Rajya Sainik Board,
Palger Stadium Road, Sd/-
Gangtok Tashi
Occupation : Lottery Seller Ext.P6(b)
c
Sd/-
SJ (E/N)
Recorded by
D Sd/- Ex.P6(c)
(P.M. Rai) Sd/-
Police Inspector SJ (E/N)
Sadar P.S.
E Gangtok"
3. On the basis of above disclosure made on 12.7.2001,
recovery of the watch was made on 17.07.2001, as per
Annexure-PS memo. The two witnesses in Exhibit P6 are
witnesses to the seizure also. The Sessions Court, as per
F
judgment dated 31.12.2002, convicted both the accused under
Section 302/380/34 IPC.
4. In appeal, the High Court of Sikkim, by judgment dated
15.12.2003, acquitted the first accused Ranjit Roy for the
G following reasons:
"12. At this stage, it is relevant to state that the appellants
were charged under section 302/34 IPC ana have been
found guilty thereunder. To invoke the aid of sectlon 34 IPC,
H it is necessary that the criminal act complained against was
DURGA BURMAN (ROY) v. STATE OF SIKKIM 319
[KURIAN, J.]
done in furtherance of the common intention of all the A
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 Raniit Roy is concerned. there is
8
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 C
no other incriminating material against him to conned 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 Raniit Roy beyond reasonable D
doubt. He is. therefore. entitled to be acquitted on the
benefit of doubt."
(Emphasis supplied)
E
5. However, in the case of second accused-appellant
hereln, 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 F
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 G
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 H
320 SUPREME COURT REPORTS [2014) 8 S.C.R.
A 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
8 did not find him and his room was locked. H~. 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 m}ssing on the date of
occurrence. Having regard to the above circumstances, we
c 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
D
converted to one under sections 302 and 380 IPC."
(Emphasis supplied)
6. Heard learned counsel appearing for the appellant and
E learned counsel appearing for the State of Sikkim.
7. The basis of maintaining the conviction against the
appellant herein who is the second accused is:
i. He was in the house of the deceased in .the
F morning on the date of occurrence.
ii. No other inmate was present except the deceased.
iii. The co-tenant had deposed that when he went to
the house of the deceased between 2.30 - 2.45
G p.m. on the same day, he could not find the
appellant and room was locked.
iv. He had not returned to his room and remained .
absconded till he was arrested on 8th July, 2001.
H
DURGA BURMAN (ROY) v. STATE OF SIKKIM 321
[KURIAN, J.]
v. -He gave recovery of the wrist watch belonging to A
husband of the deceased which was allegedly found
missing on the date of occurrence.
8. On these grounds, it was concluded that the appellant/
accused after committing the murder of the deceased, also
8
committed theft of the wrist watch and, hence, he was guilty of
offence punishable under Sections 302 and 380 IPC.
9. We are afraid, none of the circumstances by itself would
lead to the irresistible conclusion that the appellant herein is
the author of the crimes under Sections 302 and 380 IPC. It is C
in evidence of PWs 3 and 4 - the key witnesses that apart from
the appellant, one Ranjit Roy was also seen in the house of the
deceased and, according to prosecution also, as noted in their
report, it was Ranjit Roy-accused no.1 "who quietly put a strip
of cloth round the neck of the deceased and strangulated her". D
It is in evidence that both the accused belonged to New
Jalpaiguri. It is the case of the prosecution itself that the first
accused had received a message on the evening of 5.7.2001
that his mother was seriously ill and she was at home. PW-13
Kakulay does not support the case of the prosecution that she E
had seen the accused in the afternoon of 4th July, 2001 as
proceeding to Siliguri. She is specific and c.ategoric of that date
because it was the first death anniversary of her father-in-law.
The accused were in fact not absconding. They had gone to
their native place New Jalpaiguri and they were arrested from F
their respective homes only.
10. The only other ground is that of recovery under Section
27 of the Indian Evidence Act, 1872 (hereinafter referred to as
"Evidence Act"), recovery of the wrist watch which was alleged
to have been stolen by the appellant. From the evidence G
available on record, we find it extremely difficult to place reliance
on that recovery for many reasons. The wrist watch belongs to
PW1, the husband of the deceased. PWs 2 and 3 are the sons
. of the deceased and were staying with PW1 and the
deceased. PWs 1, 2 and 3 do not have a case that the wrist H
322 SUPREME COURT REPORTS [2014] 8 S.C.R.
A watch belonging to PW1 had been stolen by the appellant. They
do not also have a case about the money that has been
allegedly taken by the accused after committing murder. There
is not even a whisper in the evidence of PWs 1, 2 and 3'
regarding the theft of either the wrist watch or the cash except
B for the identification of the wrist watch by PW1 as belonging to
him. There is not even a reference to the alleged missing of
the wrist watch since 06.07.2001 or the loss of cash. It is only
in the evidence of PW16-the investigating officer that the
accused had a motive of committing theft after murdering Smt.
c Manorama Devi and that an amount of Rs.2,300/- and wrist
watch belonging to PW1 had been taken by the accused.
11. Exhibit PS-recovery memo says that the wrist watch
had been handed over to the investigating officer by the mother
of the appellant. However, Exhibit P6-disclosure statement
D recorded on 12.07.2001 which has already been extracted
above, though, not admissible as such, states that the appellant
had kept the wrist watch in his house at New Jalpaiguri and
that he could handover the same to the police. The investigating
officer examined as PW16 states that the wrist watch was
E recovered from the house of the appellant. It is not explained
as to how the mother of the appellant came into custody of the
wrist watch which had been allegedly kept in concealment by
the appellant in his house. She was not examined. Yet another
significant aspect is that the disclosure statement-Exhibit P6
F is made only on 12.07.2001, after five days of the incident and
yet the recovery is effected only on 17.07.2001. The witnesses
to the disclosure statement as well as seizure memo PWs 11
and 12 have very clearly stated in their evidence that their
signatures were obtained on some papers which had already
G been filled up by the police and that no statement had been
given by the appellant in their presence.
12. Another significant aspect in the case is that all
ornaments worn by the deceased were on the body and nothing
had been removed. If the accused had a motive to.commit theft,
H
DURGA BURMAN (ROY) v. STATE OF SIKKIM 323
[KURIAN, J.]
it is only normal that they would lay their hands on the jewellery A
as well.
13. On the basis of the evidence we have discussed
above, we find it extremely difficult to hold that the prosecution
has laid a foundation for an effective prosecution and has proved
8
beyond doubt that it is the appellant who committed the murder
of Manorama Devi. It has to be noted that this case is set up
only on circumstantial evidence. All the circumstances should
lead to, without breaking the chain, the involvement of the
accused and the accused only. On the only ground that the
accused was seen with the deceased in the morning of the C
date of incident and that they were not seen in that place for
another two days, cannot, by themselves, lead to the conclusion
that it is the appellant who authored the crime.
14. 'To abscond' means, go away secretly or illegally and D
hurriedly to escape from custody or avoid arrest. It has come
in evidence that the accused had told others that they were from
their place of work at Gangtok to their home at New Jalpaiguri.
They were admittedly taken into custody from their respective
houses only, at New Jalpaiguri on the third day of the incident. E
Therefore, it is difficult to hold that the accused had been
absconding. Even assuming for argument sake that they were
not seen at their work place after the alleged incident, it cannot
be held that by itself an adverse inference is to be drawn
against them as held by this Court in Sunil Kundu v. State of F
Jharkhand1• To quote paragraph-28:
"28. It was argued that the accused were absconding and,
therefore, adverse inference needs to be drawn against
them. It is well settled that absconding by itself does not
prove the guilt of a person. A person may run away due to G
fear of false implication or arrest. (See: SK. Yusuf v. State
of W B. 2 ) It is also true that the plea of alibi taken by the
1. (2013) 4 sec 422.
2. (2011) 11 sec 754. H
324 SUPREME COURT REPORTS [2014] 8 S.C.R.
A accused has failed. The defence witnesses examined by
them have been disbelieved. It was urged that adverse
inference should be drawn from this. We reject this
submission. When the prosecution is not able to prove its
case beyond reasonable doubt it cannot take advantage
B of the fact that the accused have not been able to
probabilise their defence . .It is well settled that the
prosecution must stand or fall on its own feet. It cannot
draw support from the weakness of the case of the
accused, if it has not proved its case beyond reasonable
c · doubt."
15. If the motive for the accused in committing the murder
of Manorama Devi was theft, it is again difficult to understand
why the accused did not remove any ornaments worn by the
deceased. Hence, the prosecution version regarding the
D motive also, is shaken. (Please see the decision of this Court
in Madhu v. State of Kerafa 3 )
16. The evidence available on record would on the contrary
give an indication that theft is a story of the investigation officer
E only. Neither PW1 whose wrist watch is said to be stolen nor
the sons of the deceased-PWs 2 and 3 have any case of the
alleged theft of wrist watch or cash. The recovery is also
doubtful. There is no consistent version of the recovery. The
person from whom the recovery has been effected, viz., the
F mother of the appellant, has not been examined. Despite the
availability of the appellant, the recovery is through his mother.
There is no explanation as to how she got to watch. This could
also be the reason why the trial court in the judgment dated
31.12.2012 held that "Technically speaking there is no
G compliance of Section 27 Evidence Act. Though the wrist watch
Ext. IX was recovered from the house of accused Durga Roy
but the record reveals that the said wrist watch was handed
over to the Police by the mother of the accused Durga Roy". It
has to be noted that recovery of the wrist watch from the house
H 3. (2Q12) 2 sec 399.
DURGA BURMAN (ROY) v. STATE OF SIKKIM 325
[KURIAN, J.]
of the appellant is the only ground on which the High Court has A
maintained the conviction of the appellant.
17. It has been argued by the learned counsel for the
appellant that the accused no.1 Ranjit Roy on whom the overt
act of strangulation is alleged, having been acquitted by the B
High Court, the conviction of the appellant cannot be maintained.
It is further contended that by the acquittal of the main accused,
the whole theory of common intention has been shattered and
that the appellant is entitled to succeed on that ground. We are
afraid, the contention cannot be appreciated. No doubt, there C
are only two accused and they have been charged under
Sections 302/380/34 IPC and one of them has been acquitted.
That by itself is not a ground to acquit the co-accused, in case
there is independent evidence. Of course in the absence of such
independent evidence, the accused could succeed on that
ground as held by this Court in Krishna Govind Patil v. State D
of Maharashtra 4 , which is a case of Section 302 read with
Section 34 IPC. To quote,
"8 .... While it acquitted Accused 1, 3 and 4 under Section
302, read with Section 34 of the Indian Penal Code, it E
convicted Accused 2 under Section 302, read with Section
34, of the said Code, for having committed the offence
jointly with the acquitted persons. That is a legally
impossible position. When accused were acquitted either
on the ground that the evidence was not acceptable or by F
giving benefit of doubt to them, the result in law would be
the same: it would mean that they did not take part in the
offence. The effect of the acquittal of Accused 1, 3 and 4
is that they did not conjointly act with Accused 2 in
committing the murder. If they did not act conjointly with G
Accused 2, Accused 2 could not have acted conjointly with
them .... "
18. In the case before us, the allegation is that after
4. AIR 1963 SC 1413. H
326 SUPREME COURT REPORTS [2014] 8 S.C.R.
A committing the murder, the accused committed theft also. As
held by this Court in Amrita alias Amritlal v. State of M.P. 5 at
paragraph-8 that:
"8 .... Mere acquittal of some of the accused on the same
B evidence by itself does not lead to, a conclusion that all
deserve to be acquitted in case appropriate reasons have
been given on appreciation of.evidence both in regard to
acquittal and conviction of the accused .... "
19. The same view was followed by this Court in Raja v.
C State 6 . To quote paragraph-12:
"12 .... It is also relevant to point out that the High Court
took note of the general principle that if the prosecution
case is the same against all the accused or with regard to
D some of the accused on the same set of evidence
available on record with reference to any of the accused,
then the Court would not be committing any mistake in
acquitting all the accused and conversely, if it is possible
to do so, namely, to remove the chaff from the grain, the
Court would not be committing any mistake in sustaining
E
the prosecution case against whom the evidence is shown
to be intact."
20. Thus, there should be independent evidence. The
conviction of the appellant is by placing reliance solely on the
F 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
G 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
5. (2004) 12 sec 224.
H a. (2013) 12 sec 674.
DURGA BURMAN (ROY) v. STATE OF SIKKIM 327
[KURIAN, J.]
That is not the situation in this case. The circumstances can lead A
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 8
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 C
. 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 ()f the wrist watch-PW1 does not have 0
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.
21. In such circumstances, we have no hesitation in holding E
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 F
with any other case.
Bibhuti Bhushan Bose Appeal allowed.
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