JITEN BESRAversusSTATE OF WEST BENGAL

                         [2010) 3 S.C.R. 271

                            JITEN BESRA                                 A
                                   v.
                     STATE OF WEST BENGAL
                 (Criminal Appeal No. 1499 of 2007)
                          MARCH 10, 2010
                                                                        B
    [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 parents-
    in-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 parents-
    in-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
    272    SUPREME COURT REPORTS                [2010] 3 S.C.R.


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.
B
       Allowing the appeal, the Court

        HELD: 1. Benefit of doubt is given to the accused-
    appellant and he is acquitted of all the charges. [Para 9)
    [279-E]
c
          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
     JITEN BESRA v. STATE OF WEST BENGAL                273

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
                                                               E
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~~ Courts should have
                                    1

weighed the circumstance as tb whether the strained
relationship was of such fierce nature that the accused        F
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
                                1



simple reason that the clothes of 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
    274     SUPREME COURT REPORTS              [2010] 3 S.C.R.


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.
     JITEN BESRA v. STATE OF WEST BENGAL                    275


    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.       B

     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 aft~r the
committal of the case to the Sessions Judge, during the trial,      G
the pros~cution examined, in all, 15 witnesses which included
Malati (~W-1), PWs-2 to 13, who were persons from locality,
Partha Sarathi
        ,
                 Dhar (PW-14),
                            I
                                  the doctor who conducted the
postmortem of the bodies of the deceased persons and Ram
Narayan Datta (PW-15) who was the Investigating Officer. The        H
    276          SUPREME COURT REPORTS                [2010] 3 S.C.R.


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
    prosecution witnesses. The High Court dismissed the appeal
8
    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
D
          (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 n~t only point towards the guilt of the accused but
  they should-be of su~h 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.
     JITEN BESRA v. STATE OF WEST BENGAL                     277
              [VS. SIRPURKAR, J.]
       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     B
 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 $he could not remember any          0
 mis-behaviour committed by the   I
                                      accused towards her. From
 her cross-examination, it is th~ar that the accused was on
visiting terms to her. This doe$ '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          F
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
-       278      SUPREME COURT REPORTS                  [2010] 3 S.C.R.


    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 ,have weighed the circumstance as to whether
                       1




      t~e 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
        t~e 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.
    H
     JITEN BESRA v. STATE OF WEST BENGAL                     279
              [V.S. SIRPURKAR, J.]
     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.


                                                                    F