Sunday, 26 June 2016

Whether conduct of accused taking press conference is relevant in his prosecution?

PW-41, the investigating officer of the case has
categorically stated in the trial that:
“In course of my investigation I tried my level best to
examine the accused Sushil Choudhury. But he was
not willing to give statement about the incident
which took place in his complex.”
 On the other hand, the appellant held a press
conference for declaring some ex-gratia payment to the bereaved
family and reward for the person who would trace out the
assailants. The purpose was to dispel the cloud of suspicion
around him. Such post conduct of the appellant is relevant and
admissible under Section 8 of the Evidence Act.
IN THE HIGH COURT OF TRIPURA
A G A R T A L A
CRL.A (J) No.28 of 2014
Sri Sushil Choudhury

– V e r s u s –

The State of Tripura


BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
THE HON’BLE MR. JUSTICE S. TALAPATRA

Date of delivery of : 10.12.2015
Judgment & Order
Citation: 2016 CRLJ(NOC)157 TRI

 This is an appeal by the convict, the appellant
hereinafter, under Section 374(2) of the Cr.P.C. against the
judgment dated 14.07.2014 delivered in Sessions Trial No.164 of
2013 by the Addl. Sessions Judge, No.4, West Tripura, Agartala.
By the said judgment dated 14.07.2014, the appellant has been
convicted under Section 302 read with Sections 120B and 109 of
the I.P.C. The appellant has been further convicted by the same
judgment under Sections 120B/109 read with Section 109 of the
I.P.C, under Section 302 read with Sections 111 and 113 of the
I.P.C and under Section 201 of the I.P.C. As consequence of the
said judgment, by the order dated 17.07.2014, the appellant has
been sentenced to suffer imprisonment for life, meaning the whole
natural life i.e. till his death, for committing the offence
punishable under Section 302 read with Sections 120B and 109 of
the I.P.C. with fine of Rs.50,000/- (Rupees Fifty thousand). The
appellant has been further sentenced to suffer rigorous
imprisonment for a period of 3(three) years for commission of the
offence punishable under Sections 120B, 109 read with Section 34
of the I.P.C. and to pay fine of Rs.5,000/- (Rupees Five
thousand). He has been further sentenced to suffer imprisonment
for life for committing the offence punishable under Section 302
read with Sections 111 and 113 of the I.P.C. with fine of
Rs.10,000/- (Rupees ten thousand). The appellant has been  CRL.A (J) No.28 of 2014 Page 3 of 105
[3]
sentenced to suffer rigorous imprisonment for 2(two) years for
committing the offence punishable under Section 201 of the I.P.C.
with fine of Rs.5,000/-(Rupees five thousand). It has been
directed that the sentences shall run concurrently and the fine if
not realized that shall be leviable in terms of Section 70 of the
I.P.C.
[2] Genesis of the prosecution against the appellant is
rooted in the ejahar filed by Smt. Niyati Deb (Ghosh), PW-40 on
19.05.2013 disclosing that on 19.05.2013 when her daughter
Papiya Ghosh (PW-1) was inside their room, she heard some
sounds from the upstairs of their room. Her daughter also told her
that some sounds were coming from the upstairs of their room
where the office of Ranjit Choudhury was situated. Reacting to
that, she came out from her room and went to the ground floor of
Ganadoot Office and found that ‘one youth (aged around 25-26
years wearing jeans and green coloured ganjee had been stabbing
Sujit Bhattacharjee, Proof Reader with the help of a dagger by
way of felling him down on the floor inside the office, seeing this I
had called my husband, Balaram Ghosh raising alarm then at first
daughter, namely, Papiya came out from our room and seeing the
incident she started crying. In the meantime the accused have
been stabbing Sujit with the help of a dagger. My husband came
out from the room and seeing this incident cried out and
proceeded to resist. Then the said miscreants had stabbed my
husband and my husband fell down on the floor. Just at that time  CRL.A (J) No.28 of 2014 Page 4 of 105
[4]
(I) found another miscreant was coming to the ground floor
through the stair cases from the office room of Ranjit Choudhury
on the upstairs. I found a wire in his hand. His age was also
around 25-26 years. They i.e. 2 (two) miscreants had fled away
after killing two persons on the ground floor with the help of the
dagger and killing another named Ranjit Choudhury, Manager in
the upstairs which I found after going over there. On getting an
information of the said incident, the police personnel came to the
place of the occurrence and sent these 3(three) severely injured
persons to the hospital and a few minutes later (I) came to learn
that my husband and other 2(two) injured persons had
succumbed to the stab injuries caused by this miscreants.’ (As
translated by the translation department of this Court from her
statement as recorded by the police officer at the place of
occurrence, Exbt.19)
[3] Based on the said ejahar, which was received at 17.15
hours of 19.05.2013, West Agartala Police Station Case No.148 of
2013 was registered and taken up for investigation. From the
records as produced, it appears that on 19.05.2013 which was a
Sunday, the ghastly murder of 3(three) persons, namely Ranjit
Choudhury, Sujit Bhattacharjee and Balaram Ghosh had taken
place. Balaram Ghosh was the husband of the informant (PW-40).
It can be estimated from the records that the time of occurrence
was between 1.15 pm. to 3.00 pm. On 19.05.2013 at about 3.25
pm, Sri Sanjoy Biswas (PW-39), Officer-in-Charge of West  CRL.A (J) No.28 of 2014 Page 5 of 105
[5]
Agartala Police Station received a cryptic telephonic information
from the appellant that ‘an havoc incident’ had taken place in the
Ganadoot Patrika Complex. Since PW-39 received the information
from outside the police station, he immediately instructed the
duty officer, namely Sri Arun Chandra Das (PW-21) of his police
station to record the said information, which was reduced in
writing the General Diary, the G.D. in short, against the G.D.
entry No.1088, Exbt.D. PW-21 relayed the said information to Sri
Manash Paul, a Sub-Inspector of Police (PW-41) and PW-41
rushed to the place of occurrence to verify the matter. PW-41
reached the place of occurrence at about 3.30 pm and found one
person sustained serious injuries and he arranged to shift him to
IGM hospital, escorted by his wife and daughter. He found one
person likely to be dead in the ground floor and another person
likely to be dead in the first floor. He made quick arrangement for
shifting them to the GBP Hospital accompanied by the police
personnel. At about 3.40 pm the entire area of the office complex
was cordoned by the police. In the close proximity of time, PW-40
returned from the hospital and about 4 pm her oral ejahar was
recorded by PW-39. At 4.15 pm to 4.30 pm the sniffer dogs were
engaged for finding out the trail. Simultaneously, FSL expert and
the fingerprint expert came to the place of occurrence. PW-41, at
the instruction of PW-39, started the investigation immediately
thereafter. He prepared the hand sketch map, Exbt.21 and took
photographs of the scene of occurrence. The formal registration of  CRL.A (J) No.28 of 2014 Page 6 of 105
[6]
the FIR had taken place at about 5.15 pm. At the direction of the
investigating officer, the FSL expert and the fingerprint expert
seized physical exhibits from the place of occurrence. At 6.20 pm
PW-41 received a requisition from the hospital for sending the
dead bodies for postmortem examination. PW-41 himself took
photographs of the dead bodies before post mortem examination.
At about 8.55 pm. the investigating officer recorded the statement
of Papiya Ghosh (PW-1). On 20.05.2013, on completion of the
postmortem examination, dead bodies were handed over to their
close relatives. The wearing apparels of the dead persons were
seized in the hospital in presence of the witnesses. At about 1.35
pm. on 20.05.2013, PW-41 recorded the statement of Smt. Niyati
Deb (Ghosh), PW-40 and her daughter Papiya Ghosh (PW-1)
again. From the statement of Papiya Ghosh (PW-1), name of one
Satyajit Das (PW-6) revealed as the assailant. In the afternoon,
the investigating officer came in the same complex and recorded
the statement of Maya Choudhury, the wife of the appellant and
one Purnima Banik (PW-5). On 21.05.2013, PW-41 examined two
persons in the office of another newspaper, namely Ajker Fariad.
Those persons were Tapan Chakraborty (PW-26) and Sri Sumit
Choudhury (PW-27) to verify about Satyajit Das (PW-5). He found
PW-5 was working at his own office on the fateful day. On that
day, the appellant by convening a press conference declared
financial assistance of Rs.1,00,000/- (Rupees one lac) for each of
the bereaved families. He had also declared reward of  
[7]
Rs.10,00,000/-(Rupees one lac) if any person could assist to trace
out the assailants. On 23.05.2013, PW-41 received the
postmortem examination report. On 27.05.2013, the seized
materials being duly packed by PW-41 were sent to the State
Forensic Science Laboratory, Narsingarh through the SubDivisional
Police Officer, Sadar. On that day, PW-41 examined
Smt. Jayashree Ghosh (DW-3) and Smt. Purnima Banik (PW-5)
again. On 30.05.2013, PW-41 examined Sri Biswajit
Bhattacharjee (PW-7), brother of the deceased Sujit
Bhattacharjee. On 31.05.2013, PW-41 examined one Prantosh
Acharjee (DW-2) and Ramu Banik. On that day Niyati Deb
(Ghosh), PW-40 was detained for interrogation and later on, she
was arrested in connection with that case. On 01.06.2013, PW-40
was forwarded to the court of the C.J.M and on that day, some
wearing apparels of Sujit Bhattacharjee were recovered from the
room of PW-40. On 03.06.2013, PW-41 again examined Satyajit
Das (PW-6) and one Namita Singha Roy (Ghosh), PW-19. On
04.06.2013, PW-41 examined Smt. Laxmi Rani Das (PW-18) and
on 05.06.2013, PW-41 examined one Bikash Banik (PW-8), Sumit
Barua and Kalpana Choudhury (PW-9). On that day, PW-41
founds some more clues and with the leave granted by the C.J.M,
West Tripura, Agartala, he interrogated PW-40 in the jail custody.
On 07.06.2013, the appellant was arrested and he was forwarded
to the court of the C.J.M., West Tripura on 08.06.2013. The
investigating officer again conducted search in the room of the  CRL.A (J) No.28 of 2014 Page 8 of 105
[8]
appellant and seized one half shirt (of maroon colour, one black
colour half pant which were the wearing apparels of the appellant
on the fateful day). He also seized one clutch wear and one CPU
from the office room of the appellant. PW-41 examined on the
same day one Kamal Barua (PW-28). On 12.06.2013, PW-41
again went to Ganadoot Patrika Bhawan and seized two cheques,
one in the name of PW-40 of Rs.20,000/- and the other in the
name of PW-1 of Rs.80,000/-. Those cheques were sent to the
SFSL for examination on 13.06.2013. On 14.06.2013, PW-41
seized two mobile sets belonging to the appellant from his
residence at Ganadoot complex. On 25.06.2013, PW-41 collected
the SFSL report where it has been opined that no other genetic
profile was found at the place of occurrence other than 3 (three)
deceased persons. On that day i.e. 25.06.2013, PW-40 submitted
a petition before the C.J.M., West Tripura(DW-4) through the
Superintendent, Central Jail, Agartala expressing her willingness
to make a full and true disclosure of the case. The C.J.M directed
the jail authority to produce PW-40 on 26.06.2013 at about 3.00
pm. On 26.06.2013 PW-40 was produced before DW-4 on the
appointed time and she was orally examined. The CJM called for
report from PW-41 against the petition filed by PW-40. On
27.06.2013, I.O submitted his response. In terms thereof and on
his assessment, DW-4 granted pardon to the accused, PW-40 as
per provisions of Section 306(1) of the Cr.P.C. on condition of her
making a full and true disclosure of the whole of the  CRL.A (J) No.28 of 2014 Page 9 of 105
[9]
circumstances of the case within her knowledge relative to the
offence. The statement of PW-40 was recorded under Section
306(4) (a) of the Cr.P.C. after giving due caution to her. The said
statement as recorded by the C.J.M is Exbt.20. On 28.06.2013,
the I.O. received a copy of the statement, Exbt.20, of PW-40. PW-
41 then made a prayer to the C.J.M for adding Sections 120-
B/194 and 195 of the I.P.C. The C.J.M allowed that prayer. On
02.07.2013, PW-41 examined one Dr. Pradip Kr. Roy (PW-17). On
04.07.2013, PW-41 examined one Ali Ahmed (PW-12), Kapil
Ahmed (PW-13) and Muslim Miah (PW-11). On 07.07.2013, PW-
41 examined one Sentu Ranjan Chakraborty, Pijush Chakraborty,
Balaram Dey (PW-15) and Sri Sailen Paul (PW-16). PW-41
examined 18(eighteen) witnesses on 08.07.2013 and 6(six)
witnesses on 19.07.2013. On 23.07.2013, PW-41 submitted the
SR (summary report) to the Superintendent of Police for approval
for submitting the charge sheet. On 24.07.2013, the approval was
received from the Superintendent of Police and PW-41 submitted
the charge sheet bearing CS No.110/2013 dated 24.07.2013
against the appellant under Sections 120-B/302/201/194/195-A
of the I.P.C., against the accused No.2 Balaram Ghosh, since
deceased under Sections 302/120-B and the accused No.3, Smt.
Niyati Deb(Ghosh), PW-40 under Sections 302/201/194 of the
I.P.C. On 23.08.2013 at the instance of the appellant, PW-40, the
approver was cross-examined in the pre-committal stage over her
statement Exbt.20. On 27.11.2013, PW-41 examined some more  CRL.A (J) No.28 of 2014 Page 10 of 105
[10]
witnesses and filed a supplementary chargesheet bearing
No.242/2013. Since the offences were exclusively triable by the
court of Sessions, the C.J.M. West Tripura committed the police
papers to the court of the Sessions Judge, West Tripura, Agartala.
The Sessions Judge, West Tripura, Agartala transferred the case,
renumbered as ST 164 of 2013, to the court of the Addl. Sessions
Judge, No.4, West Tripura, Agartala for disposal in accordance
with law. The said Addl. Sessions Judge, hereinafter referred to as
the trial court, framed the charge against the appellant as under:
“Firstly, that you Sushil Chowdhury, on or about
18.05.2013, or immediately prior thereto, at Dainik
Ganadoot office, Palace Compound, Agartala and
other places within the area of Agartala, had entered
into a criminal conspiracy with Balaram Ghosh,
(subsequently deceased) and had agreed to do an/ or
caused to be done illegal acts further to the common
intention of the same, to wit murder of one Ranjit
Chowdhury on 19.05.2013 between 2.30 and 3.30
pm. and those acts were subsequently committed by
Balaram Ghosh in pursuance of the said agreement,
and you thereby committed an offence punishable
under Sections 120B/34 of the Indian Penal Code,
1860, and within my cognizance;
Alternatively
That you Sushil Chowdhury, on or about 18.05.2013
or immediately prior thereto, had, at Dainik Ganadoot
office, Palace Compound, Agartala and other places
within the area of Agartala, had instigated and
intentionally aided and thereby facilitated to be done,
illegal acts further to the common intention of the
same, to wit murder of one Ranjit Chowdhury on
19.05.2013 between 2.30 and 3.30 pm. by Balaram
Ghosh, and that act was committed with your
abetment by ensuring that the murder could be
committed by Balaram Ghosh without any witnesses
or obstruction thereto, creating the situation for the
offence to be committed, and attempting to ensure
that the same did not subsequently come to the light
and you thereby committed an offence punishable
under Section 109/34 of the Indian Penal Code, 1860
and within my cognizance;
Secondly, that you Sushil Chowdhury, on 19.05.2013,
between 2.30 and 3.30 pm. acting jointly and
severally in pursuance of criminal conspiracy with
one Balaram Ghosh(subsequently deceased), had
facilitated and caused the death of one Ranjit
Chowdhury at Dainik Ganadoot office, Palace  CRL.A (J) No.28 of 2014 Page 11 of 105
[11]
compound, Agartala and thereby committed an
offence punishable under Section 302 read with
Section 120B of the Indian Penal Code, 1860 and
within my cognizance;
Alternatively
That, you Sushil Chowdhury, on 19.05.2013, between
2.30 and 3.30 pm. acting jointly and severally in
pursuance of a criminal conspiracy with one Balaram
Ghosh (subsequently deceased), had facilitated,
caused and abetted the death of one Ranjit
Chowdhury at Dainik Ganadoot office, Palace
Compound, Agartala and thereby committed offences
punishable under Section 302 read with Section 109
of the Indian Penal Code, 1860 and within my
cognizance;
Thirdly, that you Sushil Chowdhury, on 19.05.2013,
between 2.30 and 3.30 pm. acting jointly and
severally in pursuance of a criminal conspiracy with
one Balaram Ghosh (subsequently deceased), had
abetted the said Balaram Ghosh, in causing the death
of one Sujit Bhattacharjee at Dainik Ganadoot office,
Palace Compound, Agartala which act was abetted by
you by ensuring that the murder could be committed
by Balaram Ghosh without any witnesses or
obstruction thereto, creating the situation for the
offence to be committed, and attempting to ensure
that the same did not subsequently come to light and
thereby committed offence of abetment of murder,
punishable under Section 302 read with Sections
110/111/112/113 of the Indian Penal Code, 1860,
and within my cognizance;
Fourthly, that you Sushil Chowdhury on 19.05.2013
and thereafter, had given and fabricated false
evidence, to wit a fabricated and false description of
the unfolding of events surrounding the murders as
charged herein above, and to name a specific
individual namely, one Satyajit, intending thereby to
cause the investigation agency to be misdirected
away from yourself or the true circumstances of the
offence specifically relating to the murder of Sujit
Bhattacharjee and knowing it to be likely that
another person, including but not restricted to one
Satyajit would be convicted of a capital offence with
the mala fide motive of deflection of suspicion and
screening the true offenders including yourself and
had thereby committed offences punishable under
Section 194 read with Section 201 of the Indian Penal
Code, 1860 and within my cognizance;
Fifthly, that you Sushil Chowdhury on 19.05.2013 and
thereafter, at Dainik Ganadoot office and your
residence therein at Palace Compound, Agartala had
instigated one Niyoti (Deb) Ghosh and her minor
daughter, being one Papiya Ghosh to give fabricated
and false evidence with a false description of the
unfolding of events surrounding the murders as
charged herein above, and to name a specific
individual, namely, one Satyajit intending thereby to
cause the investigation agency to be misdirected
away from yourself or the true circumstances of the
offence specifically relating to the murder of Sujit  CRL.A (J) No.28 of 2014 Page 12 of 105
[12]
Bhattacharjee and knowing it to be likely that on the
basis thereof, another person, including but not
restricted to one Satyajit would be convicted of a
capital offence with the mala fide motive of deflection
of suspicion from the true offenders including
yourself and had thereby committed offences
punishable under Section 109 read with Section194
of the Indian Penal Code, 1860 and within my
cognizance;
Sixthly, that your Sushil Chowdhury, on 19.05.2013
and thereafter, at Dainik Ganadoot office and your
residence therein at Palace Compound, Agartala, had
threatened one Niyoti (Deb) Ghosh and her minor
daughter, being one Papiya Ghosh, with injury to
their person, reputation or property or to the person
or reputation of any one in whom that person is
interested, namely, Papiya Ghosh and Niyoti (Deb)
Ghosh in relation to one another, with intent to cause
them to give false evidence with the intention to
deflect suspicion away from yourself and also to
cause misdirection to the investigating agency as to
the true state of affairs relating to the actual incident
regarding the murders as charged hereinabove, and
thereby committed an offence punishable under
Section 195A of the Indian Penal Code, 1860, and
within my cognizance.”
 The appellant pleaded total innocence and claimed to
face the trial.
[4] In order to substantiate the charge, the prosecution
adduced as many as 41(forty one) witnesses, PWs-1 to 41 and
introduced 26 documentary evidence (Exbts.1 to 26) and several
material objects (Exbts.M.O.1 to 11).
 From the defence in order to rebut the prosecution
evidence, 6(six) witnesses DWs-1 to 6 including the C.J.M, West
Tripura, Agartala were examined and 10 (ten) material objects
(Exbts.D/1 to D/10) were placed in the evidence. The documents
which are also available in the records are the dead body challans
of the deceased, copy of the chargesheet dated 24.07.2013 and
copy of the supplementary chargesheet dated 27.11.2013. After  CRL.A (J) No.28 of 2014 Page 13 of 105
[13]
the prosecution evidence was recorded, the appellant was
examined under Section 313 of the Cr.P.C. and the appellant
made an attempt to explain or deny the incriminating
circumstances. On appreciation of the evidence, the trial court
returned the finding of conviction by the impugned judgment
dated 14.07.2014 observing inter alia that the evidence of PW-1 is
well corroborated by PW-40, the approver to whom Balaram
Ghosh, the co-accused and killed in the transaction disclosed that
at the behest of the appellant, he committed the murder of Ranjit
Choudhury. Not only that from the evidence of PW-40, it further
reveals that the appellant directed Balaram to commit murder of
Sujit for causing disappearance of evidence. It has been further
observed that PW-1 witnessed the murder of Ranjit by Balaram.
The trial court discarded the omission and contradiction as laid
bare by the defence observing that:
“…..in the evidence of PW-40, Niyati, I hope that PW-
40 made a true disclosure of the facts and
circumstances of the case leading to the murder of
three persons and her evidence is also corroborated
by other prosecution witnesses in material
particulars. If there are any marginal variations in
the statements of witnesses, it cannot be dubbed as
improvements, as the same may be elaboration of a
statement made by the witness at an earlier stage.
But in the present case, whatever, stated by Niyati to
Police, that was tutored version and she made true
disclosure of the fact before the court as the
approver. So, I find there is no improvement in the
statement of Niyati. As far as the statement of Papia
given to the police is concerned, there may be some
omissions since that witness is a minor and seeing
the incident of murder of three persons who
sustained stabbed injuries. She was under shock and
was not in a good state of mind as revealed from the
evidence of PW-5, Dr. Bikash Roy and those errors
might occur owing to mental disposition and feelings
of shock and horror that existed at the time of
occurrence…….”
  CRL.A (J) No.28 of 2014 Page 14 of 105
[14]
 The trial court has further observed that :
“…..(i) in the instant case, the prosecution does not
rely solely on the eyewitness evidence. Even leaving
aside the eyewitness evidence, the circumstantial
evidence will prove the guilt of the accused, and
corroborate the eyewitness evidence; and (ii) the fact
that the witnesses did not mention the truth out of
fear is not just part of the evidence, but is one of the
basic findings that need to be seen in this case, as a
part of the basic circumstances and a relevant fact in
itself, rather than merely part of the evidence and for
this in fact, a separate charge has been framed
against the accused Sushil Choudhury. Therefore, the
present case stands on a different footings.”
 To question these findings in general, this appeal has
been filed by the appellant.
[5] Mr. P.K. Biswas, learned senior counsel has criticized
the impugned judgment calling it as the testament of passion
taking over the legal evidence and for waiving the fundamental
principles of criminal jurisprudence. He was absolutely acerbic
when he pointed out to the lines undernoted by which the
judgment begins:
“This is a case whereby a person having the mask of
reputed person in the society alleged to have been
involved in a heinous crime causing the diabolical
murder of three persons in a broad day light.”
 Without dwelling upon much on that aspect of the
matter, Mr. Biswas, learned senior counsel has submitted that it is
the undisputed position of fact, revealed from the records that the
appellant informed the Officer-in-Charge of West Agartala Police
Station first about the incident and on his information, the police
officers arrived at the place of occurrence without much delay but
for reasons entirely unexplained, they did not register the FIR at
the first instance suo-motu and they waited for the oral ejahar of  CRL.A (J) No.28 of 2014 Page 15 of 105
[15]
PW-40. When they had direct knowledge of a cognizable offence,
they were under duty to register a case or to record the
statements of witnesses available in the place of occurrence. For
such conduct, adverse inference must be drawn against the
prosecution. The apex court by way of numerous decisions has
enunciated the law that the delay of few hours in recording the
ejahar or the statement under Section 161 of the Cr.P.C., it
creates doubt in the entire warp and woof on the entire
prosecution case. He placed reliance on a decision of the apex
court in Ganesh Bhavan Patel and another vs. State of
Maharashtra, reported in AIR 1979 SC 135, where it has been
held that:
“15. As noted by the Trial Court, one unusual feature
which projects its shadow on the evidence of P.Ws.,
Welji, Pramila and Kuvarbai and casts a serious doubt
about their being eyewitnesses of the occurrence, is
the undue delay on the part of the investigating
officer in recording their statements. Although these
witnesses were or could be available for examination
when the investigating officer visited the scene of
occurrence or soon thereafter, their statements under
Section 161 Cr.P.C. were recorded on the following
day. Welji (P.W. 3) was examined at 8 a.m., Pramila
at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. delay of a
few hours, simpliciter, in recording the statements of
eyewitnesses may not, by itself, amount to a serious
infirmity in the prosecution case. But it may assume
such a character if there are concomitant
circumstances to suggest that the investigator was
deliberately marking time with a view to decide about
the shape to be given to the case and the
eyewitnesses to be introduced. A catena of
circumstances which lend such significance to this
delay, exists in the instant case.
18. In this connection, the second circumstance,
which enhances the potentiality of this delay as a
factor undermining the prosecution case, is the order
of priority or sequence in which the investigating
officer recorded the statements of witnesses.
Normally, in a case where the commission of the
crime is alleged to have been seen by witnesses who
are easily available, a prudent investigator would
give to the examination of such witnesses
precedence over the evidence of other witnesses.
Here, the natural order of priorities seems to have CRL.A (J) No.28 of 2014 Page 16 of 105
[16]
been reversed. The investigating officer first recorded
the statement of Ravji, in all probability, between
12.45 and 3 a.m. on the 30th of Constable Shinde at 4
a.m., and thereafter of Walji, Kanjibhai (P.W.7),
Santukbai (P.W. 6), Pramila, and Kuvarbai, between 8
a.m. and 1 p.m.
27. The most important of these circumstances is the
conduct of S.I. Patil in not recording that ‘first
information’ allegedly given by Shinde and Ravji on
that occasion. S.I. Patil admitted that he did not
record the information given to him by Shinde and
Ravji about the occurrence on that occasion. The
information, which he then received, was about the
commission of a cognizable offence. It was,
therefore, the duty of S.I. Patil (who was incharge of
the Police Station) to record it in accordance with the
provisions of Section 154 Cr.P.C., but he did not do
so. The explanation given by him was that it was the
practice of his Police Station not to record such
information until a message was received from the
Hospital with regard to the condition of the injured
person. This explanation of Patil's failure to do what
was his statutory duty, was mere moonshine and was
rightly repelled by the learned trial Judge.”
[6] He has further relied to buttress the same point on
the apex court’s decision in Kailash Gour and Ors. vs. State of
Assam, reported in 2012 CRI.L.J. 1050, where it has been held
as under:
“27. There can be only two explanations for this kind
of a situation. One could be, that the Investigating
Officer was so stupid, ill-trained, ignorant of the law
and procedure that he did not realise the importance
of getting a crime registered in the police station
concerned before undertaking any investigation
including conduct of an inquest, post mortem etc. The
other explanation could be that since neither the
Investigating Officer had any clue as to who the
perpetrators of the crime were nor did the witnesses
now shown as witnesses of the occurrence had any
idea, the investigations started without any First
Information Report being recorded till late at night
on 15th December, 1992. We are inclined to believe
that the second explanation is more probable of the
two. We say so for reasons that may be summarized
as under:
(i) The Investigating Officer was a Sub
Inspector of Police and the Station House
Officer of Police Station Doboka. It follows that
he had sufficient experience in conducting
investigations especially in cases involving
heinous crimes like murder. We also assume
that the incident having taken place in an area
which was apparently susceptible to communal
violence and widespread disturbances as a  CRL.A (J) No.28 of 2014 Page 17 of 105
[17]
result of the dispute over the demolition of the
mosque, the same would have been reported to
the higher officers in the police administration
who would in turn ensure appropriate action
being taken with suitable care in the matter.
(ii) The least which the Investigating Officer
would do was to record the statement of the
eye witnesses or send the eye witnesses to the
police station for getting the First Information
Report recorded. Interestingly, while the
alleged witnesses to the occurrence were first
sent to the police station, no one ever
questioned them about the incident nor did the
witnesses volunteer to make a statement. It
defies one's imagination how Md. Hanif who
was on the spot and who is alleged to have
seen the occurrence was not questioned by the
Investigating Officer especially when he did not
have any injury much less a serious one
requiring immediate medical care and
attention. Even if the eye witness was injured,
there is no reason why his statement could not
be recorded in the hospital to ensure that an
FIR is registered without undue delay and
those responsible for committing the crime
brought to book. Failure of the prosecution to
provide any explanation much less a plausible
one shows that the investigating agency had no
clue about the perpetrators of the crime at the
time when it reached the spot or soon
thereafter nor did anyone claim to have seen
the assailants, for otherwise there was no
reason why they could not be named and an
FIR registered immediately. This Court in State
of H.P. v. Gian Chand : (2001) 6 SCC 71 dealt
with the effect of failure of prosecution to
satisfactorily explain the delay in the lodging of
the FIR and declared that if the delay is not
satisfactorily explained the same is fatal to the
prosecution. This Court observed:
‘If the prosecution fails to
satisfactorily explain the delay and
there is a possibility of embellishment
in the prosecution version on account
of such delay, the delay would be
fatal to the prosecution. However, if
the delay is explained to the
satisfaction of the court, the delay
cannot by itself be a ground for
disbelieving and discarding the entire
prosecution case.’
To the said effect is the decision of this Court
in Dilawar Singh v. State of Delhi : (2007) 12
SCC 641, where this Court observed:
‘In criminal trial one of the cardinal
principles for the Court is to look for
plausible explanation for the delay in
lodging the report. Delay sometimes
affords opportunity to the
complainant to make deliberation
upon the complaint and to make  CRL.A (J) No.28 of 2014 Page 18 of 105
[18]
embellishment or even make
fabrications. Delay defeats the chance
of the unsoiled and untarnished
version of the case to be presented
before the court at the earliest
instance. That is why if there is delay
in either coming before the police or
before the court, the courts always
view the allegations with suspicion
and look for satisfactory explanation.
If no such satisfaction is formed, the
delay is treated as fatal to the
prosecution case.’
Reference may also be made to the decisions of
this Court in State of Punjab v. Daljit Singh :
(2004) 10 SCC 141 and State of Punjab v.
Ramdev Singh : (2004) 1 SCC 421 which also
reiterated the legal position stated in the
earlier mentioned decisions.
(iii) From the deposition of Mohd. Taheruddin
(PW2), it is clear that the FIR was drawn only
after the Investigating Officer had through this
witness got the people from the locality
gathered. The officer then interrogated them
and after deliberations with the elders of the
community got a report scribed by Abdul
Jabbar (PW5) naming as many as 13 persons
as accused. PW5 has in his deposition clearly
admitted that Mohd. Taheruddin had discussed
in the gathering of the prominent people of the
area the facts to be mentioned in the ejahar.
There was nearly 100/200 people who had
assembled when the ejahar was written by
him. It is difficult to appreciate how a report
prepared after such wide consultation and
deliberations could carry a semblance of
spontaneity to be credible in a criminal trial of
such a serious nature. Even the Investigating
Officer was contributing to the creation of a
report after confabulations with elders of the
area. Mohd. Taheruddin has in this regard
deposed:
‘While ejahar was being written at his
house, he called the village President
Abdul Jabbar and other prominent
persons of the village and upon being
advised by the I.O. Gaji Sahab also
came. xxxxx The Daroga had
interrogated prominent persons
before the writing of ejahar.’
(iv) According to Mohd. Taheruddin (PW2) he
had recognised only four of the accused who
had come looking for him. There is no
explanation as to how were the remaining
accused named when he had not identified
them at the time of the occurrence and at
whose instance especially when according to
the witness his sons were in the hospital when
the ejahar was scribed.  CRL.A (J) No.28 of 2014 Page 19 of 105
[19]
(v) The Investigating Officer having prepared a
site plan of the place of occurrence before the
registration of the case and even before the
statements of the witnesses were recorded
under Section 161 Code of Criminal Procedure.,
did not make any mention about the banana
trees behind which Md. Hanif (PW4) is said to
have hidden himself. If the story regarding
PW4 having had observed the occurrence from
behind the banana trees was correct, the trees
ought to appear in the site plan which is not
the case. Absence of any banana trees in the
area around the house is an indication of the
fact that no implicit reliance can be placed
upon the version of Md. Hanif (PW4).
(vi)According to PW3 and PW4, after they
emerged from their hideouts and after their
father returned to the spot they started looking
for the dead bodies with the help of a torch. If
PW4 was right in his version, then the victims
were hacked in front of the door of the house,
there was no question of searching for the dead
bodies with the help of torch light.
(vii)The use of torch light to look for bodies
shows that there was no source of light. The
night was a foggy, cold December night. The
presence of fog is admitted by PW4 in his
deposition. Assuming that there was
moonlight, the presence of fog was a disabling
factor that made visibility poor for anyone to
observe the occurrence from a distance when a
huge mob of 30-40 people was on the rampage.
(viii) According to Shri B.N. Kalita (PW7) the
Investigating Officer in the case a written
ejahar was presented to him by Taheruddin
when the former reached the spot on 14th

December, 1992. If that were so, the least
which the officer would have done was to take
that ejahar as the first information report
regarding the occurrence and register a case of
murder against those named in it. This
admittedly was not done. In cross- examination
the witness said that a written ejahar was
presented to him by Taheruddin on 15th

December, 1992 at 12.10 p.m. Now, even if
that were true, there is no explanation why the
officer delayed registration of the FIR till 11.00
p.m. on that day. The delay in the lodging of
the FIR and the circumstances in which the
ejahar was written, cast a serious doubt about
the whole prosecution case especially when
there is no explanation whatsoever for the
failure of the Investigating Officer to record the
report based on the alleged eye witness
account immediately after he reached the spot.
(ix) The non-examination of Zakir, injured
witness at the trial is also inexplicable. Zakir
was allegedly taken out of the house by the
accused persons and assaulted. The best
person to say who the persons responsible
were for the assault was this witness himself.
The failure of the prosecution to put him in the  CRL.A (J) No.28 of 2014 Page 20 of 105
[20]
witness box, in support of its version is also an
important circumstance that cannot be legally
brushed aside. The prosecution has failed to
examine other inmates who were inside the
house and who had escaped unhurt in the
occurrence.
(x) The medical evidence adduced in the case
also does not support the prosecution version.
According to Dr. Madhusudhan Dev Goswami
(PW1), who conducted the post-mortem
examination on the dead bodies of the victims
had deposed that the death had occurred 48 to
72 hours prior to the examination. If the
prosecution version as given by alleged eye
witnesses is accepted the victims had died
within 12 hours of the post- mortem
examination. This inconsistency in the medical
evidence and the ocular evidence assumes
importance rendering the version given by the
prosecution witnesses suspicious.
(xi) According to Mohd. Taheruddin (PW2) the
appellant had shot an arrow towards him which
missed the target but hurt the witness in his
hand. There is no corroborative medical
evidence to suggest that Taheruddin has
sustained any injury on the hand or any other
part of his body.
(xii) Even regarding the motive for commission
of the crime the prosecution case is that the
incident had its genesis in the demolition of the
mosque and the large scale disturbances that
followed. While it is evident that large scale
disturbances had indeed taken place in the area
including an incident of a house being set on
fire in the neighbourhood of the place of
occurrence, the previous enmity between some
of the appellants and Taheruddin on account of
a land dispute between them could be a
possible reason for Taheruddin naming
appellants and Ors. close to him as assailants.
Enmity between complainant party and the
accused being a double-edged weapon there
could be motive on either side for the
commission of offence as also for false
implication.
* * * * *
31. We are conscious of the fact that three innocent
persons including two young children have been done
to death in the incident in question which needs to be
deprecated in the strongest terms but unless proved
to be the perpetrators of the crime beyond a
reasonable doubt, the appellants cannot be convicted
and sentenced for the same. We accordingly allow
this appeal and acquit the appellants giving them the
benefit of doubt. They shall be set free forthwith
unless required in connection with any other case.”
[Emphasis supplied]  CRL.A (J) No.28 of 2014 Page 21 of 105
[21]
[7] Mr. Biswas, learned senior counsel has also drawn
notice of this Court to the law as enunciated by the apex court in
Lalita Kumari vs. State of Uttar Pradesh and others,
reported in (2014) 2 SCC 1, where the Constitutional Bench has
decided as under:
“87. The term ‘inquiry’ as per Section 2(g) of the
Code reads as under:
‘2(g) – ‘inquiry’ means every inquiry,
other than a trial, conducted under this
Code by a Magistrate or Court.’
Hence, it is clear that inquiry under the Code is
relatable to a judicial act and not to the steps taken
by the Police which are either investigation after the
stage of Section 154 of the Code or termed as
'Preliminary Inquiry' and which are prior to the
registration of FIR, even though, no entry in the
General Diary/Station Diary/Daily Diary has been
made.
88. Though there is reference to the term
'preliminary inquiry' and 'inquiry' under
Sections 159 and Sections 202 and 340 of the Code,
that is a judicial exercise undertaken by the Court
and not by the Police and is not relevant for the
purpose of the present reference.
89. Besides, learned senior counsel relied on the
special procedures prescribed under the CBI manual
to be read into Section 154. It is true that the concept
of ‘preliminary inquiry’ is contained in Chapter IX of
the Crime Manual of the CBI. However, this Crime
Manual is not a statute and has not been enacted by
the legislature. It is a set of administrative orders
issued for internal guidance of the CBI officers. It
cannot supersede the Code. Moreover, in the absence
of any indication to the contrary in the Code itself,
the provisions of the CBI Crime Manual cannot be
relied upon to import the concept of holding of
preliminary inquiry in the scheme of the Code of
Criminal Procedure. At this juncture, it is also
pertinent to submit that the CBI is constituted under
a Special Act, namely, the Delhi Special Police
Establishment Act, 1946 and it derive its power to
investigate from this Act.”
[8] Mr. Biswas, learned senior counsel has taken serious
objection to the finding returned by the impugned judgment that
having persuaded by the police officer, the appellant did not make
any statement about the gruesome murder taken place in his  CRL.A (J) No.28 of 2014 Page 22 of 105
[22]
premises. The appellant reported the incident immediately after
the occurrence to PW-39 over phone. That position of fact has
been admitted by PW-39, the Officer-in-Charge of the West
Agartala P.S and PW-41, the investigating officer arrived at the
place of occurrence without much delay. Mr. Biswas, learned
senior counsel has further emphasized that admittedly there is no
record or entry in the case diary that the appellant refused to
make any statement or to allow his statement recorded. Mr.
Biswas, learned senior counsel thereafter, while dealing with the
development that PW-40, Smt. Niyati Deb (Ghosh) and PW-1,
Miss. Papiya Ghosh did not make the true disclosure in the ejahar
or in the statement recorded under Section 161 of the Cr.P.C.
being threatened by the appellant has submitted that plea has
fallen apart for the reason that just after the occurrence she had
disclosed to the persons including the witnesses. On being asked
by them she stated that her husband and others were killed by
the miscreants. She did not say that her husband and the
appellant committed the murder of Ranjit Choudhury. The oral
ejahar was recorded immediately after her arriving to the place of
occurrence from the hospital at 4 pm in the afternoon. The same
has also been admitted by PW-40 in her statement recorded
under Section 306 of the Cr.P.C. that before making the oral
ejahar on the day of occurrence, PW-40 had met with the
appellant twice but the appellant did not say anything about the
incident to her. In view of such evidence on record, it cannot be  CRL.A (J) No.28 of 2014 Page 23 of 105
[23]
accepted that the FIR and the statement made under Section 161
of the Cr.P.C. were made being threatened or tutored by the
appellant. That apart, in view of the statement made by PWs-
5,18,19 and 1, it evinces that before making the oral ejahar to
PW-41, there was no conversation between PW-40 and PW-1.

[9] Mr. Biswas, learned senior counsel has submitted
with sufficient vehemence that PW-40 Niyati Deb (Ghosh) cannot
be an approver within the meaning of Section 306 of the Cr.P.C.
which provides that with a view obtaining the evidence of any
person supposed to have been directly or indirectly concerned in
or privy to an offence to which this section applies, the Chief
Judicial Magistrate or a Metropolitan Magistrate at any stage of
the investigation or inquiry into, or the trial of, the offence, and
the Magistrate of the first Class inquiring into or trying the
offence, at any condition any stage of the inquiry or trial may
tender a pardon to such person on condition of his making full an
true disclosure of the whole of the circumstances within his
knowledge relative to the offence and to every persons concerns,
whether principal or abettor in the commission thereof.

[10] Mr. Biswas, learned senior counsel has submitted that
PW-40 never admitted that she did participate in the alleged
offence or she had a conspiratorial role or she was in league with
the killers. On the contrary, she has clearly admitted in her crossexamination
that she did not participate in the offence and tried to  CRL.A (J) No.28 of 2014 Page 24 of 105
[24]
resist the assailants. Even the Chief Judicial Magistrate, West
Tripura (DW-4) has admitted on being questioned that PW-40
declined to make any confessional statement and she said that
she did not commit any offence and as such, according to Mr.
Biswas, learned senior counsel her statement is of no use and
liable to be discarded for being exculpatory. He has further
submitted that there should be reasonable amount of
corroboration in this regard. To buttress his contention, Mr.
Biswas, learned senior counsel has placed his reliance on a
decision of the apex court in State of Rajasthan vs. Balveer
alias Balli and another, reported in 2014 CRI.L.J. 314 where it
has been held as under:
“15. The first question that we have to decide is
whether the High Court is right in coming to the
conclusion that for being an approver within the
meaning of Section 306 Cr.P.C, a person has to
inculpate himself in the offence and has to be privy to
the crime, otherwise he removes himself from the
category of an accomplice and places himself as an
eyewitness. Section 306 Cr.P.C provides that with a
view to obtaining the evidence of any person
supposed to have been directly or indirectly
concerned in or privy to an offence, the Magistrate
may tender a pardon to such person on condition of
his making a full and true disclosure of the whole
circumstances within his knowledge relative to the
offence and to every other person concerned,
whether as principal or abettor, in the commission
thereof. This Court in the case of Suresh Chandra
Bahri v. State of Bihar : 1995 Supp. (1) SCC 80
explained the object of Section 306 Cr.P.C in the
following words:
‘The object of Section 306 therefore is to
allow pardon in cases where heinous
offence is alleged to have been committed
by several persons so that with the aid of
the evidence of the person granted
pardon the offence may be brought home
to the rest. The basis of the tender of
pardon is not the extent of the culpability
of the person to whom pardon is granted,
but the principle is to prevent the escape
of the offenders from punishment in
heinous offences for lack of evidence.
There can therefore be no objection  CRL.A (J) No.28 of 2014 Page 25 of 105
[25]
against tender of pardon to an accomplice
simply because in his confession, he does
not implicate himself to the same extent
as the other accused because all that
Section 306 requires is that pardon may
be tendered to any person believed to be
involved directly or indirectly in or privy
to an offence.’
Thus, the High Court failed to appreciate that the
extent of culpability of the accomplice in an offence is
not material so long as the magistrate tendering
pardon believes that the accomplice was involved
directly or indirectly in or was privy to the offence.
The High Court also failed to appreciate that
Section 133 of the Indian Evidence Act provides that
an accomplice shall be a competent witness against
an accused person and when the pardon is tendered
to an accomplice under Section 306 Cr.P.C the
accomplice is removed from the category of coaccused
and put into the category of witness and the
evidence of such a witness as an accomplice can be
the basis of conviction as provided in Section 133 of
the Indian Evidence Act.
16. As a rule of prudence, however, as provided in
Illustration (b) to Section 114 of the Indian Evidence
Act, the Court will presume that an accomplice is
unworthy of credit, unless he is corroborated in
material particulars. In Rameshwar s/o Kalyan Singh
v. The State of Rajasthan : AIR 1952 SC 54, this Court
laid down the kind of evidence which should, or
would, be regarded as corroboration of the testimony
of an accomplice and held that it is not necessary that
there should be independent confirmation of every
material circumstance but independent evidence
must not only make it safe to believe that the crime
was committed and must in some way reasonably
connect the accused with the crime. In the language
of this Court in the aforesaid case:
‘All that is necessary is that there should
be independent evidence which will make
it reasonably safe to believe the witness'
story that the accused was the one, or
among those, who committed the
offence.’
In this case, the Court also clarified that
corroboration need not be by direct evidence that the
accused committed the crime and it is sufficient if it
is merely circumstantial evidence of the connection of
the accused with the crime. In the aforesaid case,
this Court also explained that unless the testimony of
an accomplice is treated as evidence, many crimes
which are usually committed between accomplices in
secret, particularly offences with females, could
otherwise never be brought to justice. With these
principles with regard to the testimony of an
accomplice in mind, we may now examine the
testimony of PW-1 and the corroboration of such
testimony by material particulars, if any, so as to
connect Ram Niwas and Balveer in the offences.”
[Emphasis supplied]  CRL.A (J) No.28 of 2014 Page 26 of 105
[26]
[11] He has also relied on the decision of the apex court in
C. M. Sharma v. State of A.P. TH. I.P., reported in AIR 2011
SC 608, where the apex court has restated the law on the
necessity of corroboration thus:
“11. Yet another decision on which reliance is placed
is the decision of this Court in the case of Meena
(Smt) W/O Balwant Hemke v. State of Maharashtra,
(2000) 5 SCC 21: (AIR 2000 SC 3377) in which it held
as follows:
‘The corroboration essential in a case like
this for what actually transpired at the
time of the alleged occurrence and
acceptance of bribe is very much wanting
in this case. Even the other panch
witness, PW 5 categorically admitted that
even as the Inspector of Police, PW 6
arrived, the appellant gave the same
version that PW 1 tried to force into her
hands the currency note which she turned
down by pushing it away, and his
evidence also does not lend credibility to
the case of the prosecution. The
contradictory version of PW 1 of the very
incident when earlier examined in
departmental proceedings renders his
testimony in this case untrustworthy. PW
3, the Head Copyist, seems to be the brain
behind all this and that PW 1 as well as
Jagdish Bokade appear to be working as a
group in this affair and despite the blunt
denial by PW 3, his closeness to PW 1 and
Jagdish Bokade stands well substantiated.
All these relevant aspects of the case
seem to have been completely overlooked
by the courts below.’
We do not find any substance in the submission of
Mr. Rai. The word accomplice has not been defined
under the Evidence Act and therefore presumed to
have been used in the ordinary sense. A person
concerned in the commission of crime, a partner in
crime and associate in guilt is an accomplice. He
takes part in the crime and is privy to the criminal
intent. In our opinion a witness forced to pay on
promise of doing or forbearing to do any official act
by a public servant, is not a partner in crime and
associate in guilt and therefore cannot be said to be
accomplice. It has long been rule of practice, which
has become equivalent to rule of law, that the
evidence of an accomplice is admissible but to be
acted upon, ordinarily requires corroboration.
Contractor who gave bribe, therefore, cannot be said
to an accomplice as the same was extorted from him.
Reference in this connection can be made to a
decision of this Court in the case of Dalpat Singh and
another v. State of Rajasthan, (AIR 1969 SC 17), in
which it has been held as follows:  CRL.A (J) No.28 of 2014 Page 27 of 105
[27]
‘We are unable to accept the contention of
the learned counsel for the appellants
that PWs 1, 2, 3, 4 and 17 and other
prosecution witnesses to whose evidence
we shall presently refer, should be
considered as accomplices and therefore
their evidence is required to be
corroborated in material particulars
before being accepted. On the proved
facts, even those who gave illegal
gratification to the appellants cannot be
considered as accomplices as the same
was extorted from them. Though PWs 1,
2, 4 and 17 can be considered as
interested witnesses as regards their
evidence relating to trap, as a matter of
law, it is not correct to say that their
evidence cannot be accepted without
corroboration, see State of Bihar v.
Basawan Singh 1959 SCR 195 : (AIR 1958
SC 500) (underlining ours).’ ”
[12] The reliance has also been placed for the same
purpose on an apex court decision in Rampal Pithwa Rahidass
and others vs. State of Maharashtra, reported in 1994
CRI.L.J. 2320, where it has been enunciated that:
“9. Section 133 of the Evidence Act expressly
provides that an accomplice is a competent witness
against his co-accused and it renders admissible the
testimony of an accomplice against his co-accused. It
has, however, been a long settled practice of law that
Section 133 of the Evidence Act must be read along
with the provisions of illustration (b) to Section 114
of the Evidence Act. Section 114 of the Evidence Act
empowers the court to presume the existence of
certain facts and illustration (b) in express terms
says that an accomplice is unworthy of credit unless
be is corroborated in material particulars. Thus, it
follows, that whereas law permits the conviction of
an accused person on the basis of the uncorroborated
testimony of an accomplice by virtue of the
provisions of Section 133 who is treated as a
competent witness, the rule of prudence which has
rightly been always accepted by the courts, embodied
in illustration (b) of Section 114 of the Evidence Act,
strikes a note of warning caution to the courts that
an accomplice does not generally deserve to be relied
upon, unless his testimony is corroborated in
material particulars. Thus, as a matter of practice and
prudence the courts have held that the testimony of
an approver may be accepted in evidence for
recording conviction of an accused person provided it
receives corroboration from direct or circumstantial
evidence in material particulars. The courts have
generally looked upon with suspicion the statement
of an approver because he is considered to be a
person of low morals and not a wholly trust worthy
person who for the sake of earning pardon for himself
is willing to let down his erstwhile accomplices and  CRL.A (J) No.28 of 2014 Page 28 of 105
[28]
therefore before recording conviction Courts insist
upon independent corroboration of his testimony. In
Ram Narain v. State of Rajasthan: (1973) 3 SCC 805
at 811 :(AIR 1973 SC 1188 at p. 1192), Dua, J. while
speaking for the Court dealt with the subject and
observed :
‘An approver who is admittedly guilty of
the crime is an accomplice who has
betrayed his associates and has
apparently sought pardon for saving his
own skin. In other words he has
purchased complete immunity for his
prosecution at the expense of his
associates by agreeing to give evidence
against them for the prosecution. He is,
therefore, presumed not to be a man of
high character or a fair witness. His
pardon being conditional to please the
prosecution he may well weave some
false detail into the true details of the
prosecution story and may also falsely
involve some innocent person. There is
thus a real danger of his telling a story
true in general outline but containing
some untruth which he can easily work
into the story. It is for this reason that the
courts as a matter of prudence and
caution anxiously look for some
corroboration to satisfy their conscience
that the approver's testimony which is
clearly admissible is also worthy of belief
credit. One can of course visualise an
accomplice who is genuinely repentant for
the commission of his crime and truly
desires to make a clean breast of the
whole affair by way of penitence. But
even in such cases the court has to
judicially determine the extent to which
his uncorroborated testimony can be
considered as trustworthy by looking to
the other relevant material and the
attending circumstances on the basis of
which the accused can be safely
convicted. The rule which seems to
emerge from the foregoing discussion and
judicial decisions in that the necessity of
corroboration as a matter of prudence
except when it is safe to dispense with
such corroboration must be clearly
present to the mind of the Judge.’
ARREST OF RAMCHARAN AND GRANT OF
PARDON TO HIM:
The above principle has stood the test of
time and it is with this background
present in our minds that we shall
examine the testimony of Ramcharan
approver PW 49. How he came to be
arrested? How did he became a
participant in the crime? What role did he
play in the crime? When and how he
decided to be an approver? These are
some of the questions which we shall
have to consider determining the  CRL.A (J) No.28 of 2014 Page 29 of 105
[29]
creditworthiness of his testimony and the
nature and the extent of corroboration
which is required before his testimony can
be relied upon in support of the
prosecution case.
10. The approver appeared as PW49 at the trial. He
was arrested on 7-7-84 in some other connection and
till his arrest as already noticed, the investigation had
drawn a blank in this case and was being criticized
both by the media and the public alike for not solving
the crime and appears to have been under
tremendous pressure. How did the approver come to
be arrested?
* * * * *
23. Bail was, however, declined and he continued to
remain in custody. According to the prosecution case,
on 1.4.1987, Ramcharan accused suddenly and of his
own decided to become an approver and to make a
disclosure of all facts, about which he had said in his
application dated 17.01.1987 that he knew nothing!
His application dated 01.04.1987 reads:
‘To The District and Session Judge,
Chandrapur.
Sub : Case Under Sections 3 and 397 of
IPC.
Through: The Superintendent, District
Prison , Chandrapur.
Sir,
I, Ramcharan, S/O Ramashraya, prisoner
No. 1803 state as under:
That on 19.7.84, the police imprisoned me
in this jail under Sections 396 and 397 of
IPC. The statement given by me in the
lower court in respect of my case, is true.
The persons against whom the case for
dacoity and murder is filed, are all
responsible for the murder, I was only
looking after their clothes. I had seen the
accused persons committing the murder
of the person. I may be given pardon in
this case. I want to be an approver. My
statement, as given above is true. It has
been read over to me.
Before me,
Sd/- Illegible
Jailor
District prison,
Chandrapur
Yours faithfully,
(T.I.)
Left hand thumb
impression of
Ramchanran
s/o Ramashaya
No. Jud/433/87
Chandrapur District Prison
Chandrapur Dt. 1.4.87 CRL.A (J) No.28 of 2014 Page 30 of 105
[30]
Submitted to the Sessions Judge, Sessions
Court, Chandrapur for necessary further
disposal.
Sd/-
Illegible
Jailor
District Prison
Chandrapur.’
24. The District Judge forwarded the application to
the Addl. Sessions Judge, Chandrapur and the Public
Prosecutor was directed on 23.04.87 to file reply to
the application of Ramcharan. The Public Prosecutor
in the reply stated:
‘The application can be allowed after
some preliminary question provided he
gives evidence on oath sticking upto the
previous statements Under
Section 162 and 164. Cr. P.C.’
Thereafter, an order granting pardon, which reads as
follows, was made on 24.04.1987:
‘Accused No. 1 Ramcharan son of
Ramashray Rahidas is one the accused
persons in a dacoity-cum-murder case
which to place on Chandrapur Ballarshah
road on 03.07.84. He has made a
confession statement before the learned
Judicial Magistrate, 1st Class, Chandrapur
admitting that he and the other accused
are involved in the said offence. He has
now asked to pardon him. The incident
has taken place in the jungle at night.
Proof of guilt of all accused persons is not
forthcoming satisfactorily. It is necessary
to bring the rest of the offenders to
justice. There is prima facie evidence that
the present accused was present on the
spot. He is not a principal offender. He has
agreed to make a true and complete
disclosure of all the facts within his
knowledge I, therefore, feel that the said
accused should be granted pardon on
condition that he will make true and
complete disclosure of all the facts within
his knowledge which he has agreed. I,
therefore, pass the following order:
 ORDER
Accused No. 1, Ramcharan son of
Ramashray Rahidas is tendered pardon
under Section 307 of Cr.P.C. on condition
of him making a true and complete
disclosure of the whole of the
circumstances within his knowledge
relating to the offence and to every other
person concerned whether as principal or
abettor in the commission thereof.
Dt. 24.04.87.  CRL.A (J) No.28 of 2014 Page 31 of 105
[31]
Sd/- F.N. Velati
Addl. Sessions
Judge
 Chandrapur’
* * * * *
26. Indeed Ramcharan was not confronted at the trial
with the statement contained in his bail application
but nonetheless the fact remains that while
considering the credibility of the approver and the
weight to be attached to his statement, the statement
made in the bail application (which is part of the
judicial record) can be looked into by the Courts. The
High Court, in our opinion, did not consider the
significance of this variation in the statement when it
observed that:
‘We do not, therefore, think that the
statement in the bail application, in
anyway, detracts from the credibility of
the evidence which he gave in the Court.’
We cannot subscribe to the view of the High Court.
What made the approver all of a sudden on 1.4.1987
decide to address a letter to the Sessions Judge that
he be granted pardon and be made an approver? The
prosecution as well as Ramcharan are totally silent
on this aspect. Was the approver being harassed or
lured? In this connection it may be relevant to note
that soon after Ramcharan approver had been shifted
to Chandrapur police station on 8.7.84 within 2/3
days the police had got his photograph taken. This
has been admitted by Ramcharan approver in his
cross-examination while appearing as PW49. It is
also borne out from the record that while Ramcharan
approver was in police custody at Chandrapur Police
Station, Murari accused who had also been arrested
and lodged to Chandrapur police station, as an
accused in this case, died while in police custody on
10th July, 1984. It was within a few days after the
death of Murari, that Ramcharan appears to have
made his confessional statement under
Section 164 before the learned Judicial magistrate
but through his application dated 17.1.87, he
reported to the Sessions Judge that he was being
asked to become an eye witness in the dacoity case,
when he knew nothing about that crime. This should
have put the Court as its guard, when it was
considering his application for tender of pardon dated
1.4.1987, but it seems that the Sessions Court did not
apply its mind to that aspect at all. Having already
made the so called voluntary statement under
Section 164, Cr.P.C. on 21.7.1984, why did he
complain in his application dated 17.1.1987, that he
was being forced to become an eye witness though
he did not know anything about the crime? The
prosecution offered no explanation. That the
statement under Section 164, Cr.P.C. was made in
1984 and, therefore, the approver may have
forgotten what he wrote earlier is too feeble an
explanation to be accepted. It appears to us that
Ramcharan approver was throughout under pressure
to become an approver in the case because the
investigation had drawn a blank and admittedly the
District Police of Chandrapur was under constant  CRL.A (J) No.28 of 2014 Page 32 of 105
[32]
attack from the media and the public. The police, with
a view to escape public wrath appears to have
planted Ramcharan as an approver, may be on the
promise, that he would escape punishment and to us
even the first confessional statement does not appear
to be voluntary one.
* * * * *
28. We have already made a reference to the
statement of Ramcharan approver recorded under
Section 164 Cr.P.C. before he made an application for
being tendered pardon. After the tender of pardon,
Ramcharan was examined at the trial not as a first
witness on behalf of the prosecution, which he
ordinarily should have been, but as PW49, almost at
the fag end of the trial after he had the occasion to
know the other evidence led in the case, so that he
could depose accordingly in support of the
prosecution. The statement of Ramcharan as PW49 is
a detailed one and gives in graphic details not only
the manner in which he was arrested; the
circumstances under which he came into contact with
the appellants and others before his arrest but also
the manner in which murders and dacoities were
committed by his co-accused and the part played by
him during the commission of the crime. He also
deposed about the recoveries made pursuant to
disclosure statements made by different appellants
from different places of different articles on different
dates. The minute details given by Ramcharan
approver at the trial, 3 years after the occurrence,
are too good to be believed and exhibit a remarkable
feat of memory. His statement at the trial as PW49 is
much more detailed than the one contained in his
confessional statement recorded under
Section 164 Cr.P.C. within a few days of his arrest.
Some of the statements made as PW49 find no
mention in his earlier confessional statement as for
example, that Babulal told him to accompany them
and offered to pay him Rs. 200 which he declined and
that at that point of time accused Fulchand slapped
him and thereupon he agreed to accompany them and
do whatever they would tell him to do. That apart, he
ascribed no part to himself at all during the entire
occurrence except to take care of an empty bag and
clothes of some of the co-accused. Ramcharan also
deposed at the trial that after dacoity had been
committed, accused persons advised him to run
towards Ballarshah side but he declined to do so and
told them that he will not go anywhere alone and will
only accompany them or sit by the side of the road.
The accused persons then caught hold of him by his
hands and took him towards Ballarshah side by the
side of the road through jungle. The approver then
stated:
‘from the spot of incident we went at a
distance of about one mile and sat.
Accused Babulal lighted a match stick and
I saw accused Fulchand counting the
money. I had seen Rs. 100 denomination
note in his hand at that time. Six accused
persons thereafter went towards
Ballarshah Power House side. Myself,
accused Rampal, accused Ramkishor and  CRL.A (J) No.28 of 2014 Page 33 of 105
[33]
deceased accused Murari went from paper
Mill side to Ballarshah city. We went to
the house of accused Babulal. We reached
the house of accused Babulal at midnight
12 O'clock or 1.00 a.m. At about 2.00 to
2.30 a.m. the rest of six accused persons
also came to the house of accused
Babulal.’
According to the approver, on the next day in the
morning accused Babulal advised him to go to his
home town and told him that ‘they had committed
dacoity and murder, Police were enquiring in the
matter. I am a new person, they would therefore
suspect and interrogate me. I told accused Babulal
that I had no money to go to my home town. The
accused Babulal told me that he had no money and he
cannot give me any money. At about 10 a.m. I started
going. Accused Babulal told me not to tell anybody
about the incidence. I told accused Babulal that if
anybody asks me I will narrate the incident...I came
to Chandarpur on foot. I went to B.N.R. railway
station and went to the platform.’ They gave him no
money.
* * * * *
31. The sequence of events at Ballarshah Road as
detailed by the approver in his statement in the Court
is quite different than the sequence of events as
deposed to by the three injured eye witnesses. The
High Court noticed that there was variation in the
version given by Ramcharan approver and the three
eye witnesses as regards the sequence of events and
the manner of assault but chose to ignore this by
observing:
‘But having regard to the nature of the
incident, the fact that the life of the eye
witnesses was in peril and the horrendous
conditions under which they had to make
their escape, we do not think that the
discrepancies regarding the order in
which the vehicles came and the
directions in which they went can be
reflecting upon the credibility of the eye
witnesses. All this eventually had been
occurring in darkness, and even Ram
Charan's recollection in this respect
cannot but be too hazy because of the
gruesome nature of the incidence. We,
therefore, attach no value to the
discrepancies.’
This approach of the High Court does not appeal to
us. The importance of the discrepancies had to be
considered to test the credibility and trustworthiness
of the approver and the High Court failed to do so.
32. A careful analysis of the statement of the
approver given at the trial coupled with the
circumstances under which he came to be arrested,
the averments in his application for grant of bail and
other circumstances has created an impression on
our minds that the approver was a planted witness
and his testimony is not at all worthy of reliance and
credence. The investigating agency appears to have  CRL.A (J) No.28 of 2014 Page 34 of 105
[34]
created false evidence and fabricated false clues in so
far as the testimony of the approver is concerned.
From all the attendant circumstances, we are
satisfied that the approver Ramcharan is not a
reliable witness; his arrest was intrinsically unnatural
and his self-confessed participation in the crime
without taking any active part in it not acceptable.
The approver has claimed to be a spectator of every
fact and of every moment but asserted that he did
not participate in the assault at any stage and
remained standing at a distance taking care of the
clothes of some of the co-accused. His statement is
almost of an exculpatory nature. His statement as a
whole does not inspire confidence. His story is not
worthy of credence. We find ourselves unable to
place any reliance on his untrustworthy and
unreliable evidence and in that view of the matter,
we refrain even from expressing any opinion about
the effect of the alleged non-compliance with the
provisions of Section 306(4) IPC read with
Section 307 IPC, as admittedly after the grant of
pardon by the order dated 24.4.1987, no statement of
Ramcharan approver was recorded till he appeared at
the trial as PW 49. It is only after the grant of pardon
that the status of an accused is changed into that of a
witness and the law enjoins upon the Courts to
record the statement of the approver immediately
after pardon is granted to him so that he may
consider himself bound by that statement and failure
to do so at the trial would render him liable for
prosecution. That exercise was not performed in this
case.
* * * * *
35. We are conscious that five persons have died
unnatural deaths on the Highway and the crime is
going unpunished. But the Courts have to decide the
cases on the evidence led and not on what ought to
have been led. The manner in which the approver has
been introduced in the case coupled with the alleged
faked recoveries has created an impression on our
minds that the investigating agency failed to
apprehend the real criminals and created false
evidence and fabricated false clues in the present
case to somehow or the other secure the conviction
of the appellants and save its image in the face of the
severe attack about its incapacity to apprehend the
real culprits by the public and the media. It is
unfortunate that the investigating agency should
have resorted to fabricating of evidence and act in
the manner in which it did in this case.
36. ‘The quality of a nation's civilization’, it is said,
‘can be largely measured by the methods it uses in
the enforcement of criminal law’ and going by the
manner in which the investigating agency acted in
this case causes concern to us. In every civilised
society the police force is invested with the powers of
investigation of the crime to secure punishment for
the criminal and it is in the interest of the society that
the investigating agency must act honestly and fairly
and not resort to fabricating false evidence or
creating false clues only with a view to secure
conviction because such acts shake the confidence of
the common man not only in the investigating agency  CRL.A (J) No.28 of 2014 Page 35 of 105
[35]
but in the ultimate analysis in the system of
dispensation of criminal justice. Let no guilty man go
unpunished but let the end not justify the means! The
Courts must remain ever alive to this truism. Proper
results must be obtained by recourse to proper
means - otherwise it would be an invitation to
anarchy.”
[Emphasis supplied]
 On the same point, Mr. Biswas, learned senior counsel
has placed his reliance on a Gauhati High Court decision in
Rakesh Kr. Singh vs. State of Assam, reported in 2003
CRI.L.J. 3206, where it has been held as under:
“9. In Black's Law Dictionary (5th Edition) the word
'accomplice' has been defined as :
‘One who knowingly, voluntarily and with
common intent unites with the principal
offender in the commission of a
crime/One who is in some way concerned
or associated in commission of
crime/partaker of guilt/one who aids or
assists, or is an accessory/Equally
concerned in the commission of crime/An
'accomplice' is one who is guilty of
complicity in crime charged, either by
being present and aiding or abetting in it,
or having advised and encouraged it
though absent from place when it was
committed, though mere presence
acquiescence, or silence in the absence of
a duty to act, is not enough, no matter
how responsible it may be, to constitute
one an accomplice. One is liable as an
accomplice to the crime of another if he
gave assistance or encouragement or
failed to perform a legal duty to prevent it
with the intent thereby to promote or
facilitate commission of the crime.’
10. A bare perusal of the statement of Sikha
Barthakur will show that this witness has nowhere
stated about her involvement in the above crime,
directly or even indirectly. She seems to be another
victim of crime or merely a spectator. Her entire
statement is exculpatory and she has not
incriminated herself in any manner. Learned Public
Prosecutor, however, submitted that at the relevant
time and at the relevant place there were only three
persons, namely the accused appellant, PW 6 and the
deceased. The deceased is no more in this world to
depose as to what had happened and the accused has
a right under the law to remain mum. Hence, PW 6
was the only eye witness left after witnessing the
incident and it was her duty to give information. He
had referred to the provision of Section 39 of the
Cr.PC. In this case, we find that the police  CRL.A (J) No.28 of 2014 Page 36 of 105
[36]
immediately after reaching the place of occurrence
found two persons, namely, the accused appellant
and PW 6 and arrested both of them. Hence the
Constitutional safeguards to remain silent were
available to both the PW 6 and the accused appellant.
Moreover, it cannot be said that as PW 6 had failed to
discharge her responsibility under Section 39 Cr.P.C
as she was an accomplice to the crime of murder. In
the case of A.S.N. Reddy v. State of Hyderabad: AIR
1956 SC 379, the Apex Court had held that a witness
merely accompanying the accused does not satisfy
the requirement of an accomplice. In the case of
State v. Boberts 13 P 896 Col. 15 OR 187 it was
stated that the term 'accomplice' in the case of who
are ‘particeps criminis’, whether consider in a direct
legal sense of the term as principal or accessories
and particular includes any associate in the crime and
or assisting, co-operating or aiding in its commission.
In another case of State v. Western 219 P 180 Col.
109 OR 19 it was held ‘the mere presence of a
terrified onlooker or his failure to report a crime,
does not constitute him an accomplice’.
11. In the present case, we find that PW 6 was a 18
years old young girl staying with her elder sister who
was married to the accused appellant. There is no
other evidence on record except, her own statement,
which shows that not to speak of participation in the
crime, she had no inkling even that the incident may
end in the death of her dear sister. We, therefore,
hold that she was not an accomplice and there is no
question other becoming an approver or giving her
pardon. Pardon is granted or sought when somebody
claims that he has committed a mistake. Learned
counsel for the appellant has submitted that the law
is well settled that the evidence of an accomplice or
approver cannot be accepted unless it corroborated
with the material facts and in the instant case there
is no corroboration whatsoever. In view of what has
been stated above, we, therefore, hold that the PW 6
cannot be termed as an accomplice or approver in
view of exculpatory evidence/materials on record.
12. In this case as stated above, police has submitted
charge-sheet against PW 6 also. Thus, she is a coaccused.
Section 30 of the Evidence Act reads as
follows :
‘Consideration of proved confession
affecting person making it and other
jointly under trial for same offence. -
When more persons than one are being
tried jointly for the same offence, and a
confession made by one of such persons
affecting himself and some other of such
persons is proved, the Court may take into
consideration such confession as against
such other person as well as against the
person who makes such confession.’
* * * * *
14. There is another aspect of the matter also. On
perusal of the record we find that although PW 6 was
arrested on 26.09.1996 and when she was sent to the
Magistrate for recording her confession under  CRL.A (J) No.28 of 2014 Page 37 of 105
[37]
Section 164 Cr.P.C, she declined to confess.
Thereafter, she filed an application seeking pardon
and pardon was granted after recording her
statement on 27.11.1996. Ext. 5 is the said statement
and this seems to be the only statement of PW 6,
besides the evidence given by her before the Court.
Learned Public Prosecutor could not show any
statement of PW 6 recorded by I.O. prior to this date
although police was required to record her statement
soon after her arrest. Thus, we find that after two
months of the incident the witness PW 6 disclosed for
the first time and made a statement implicating the
accused appellant in the above incident. In ASN
Reddy (supra) the Apex Court observed that the
evidence of a person witnessing the occurrence but
not divulging the same to anybody for 2/3 days
should be scanned with much caution. Considering
the facts and circumstances of the case and in
absence of any corroboration whatsoever we hold
that the statement of PW 6 does not inspire much
confidence and cannot be relied on for basing
conviction. As we feel that she has not stated the
whole truth after two months of the incident and
there is something against, her evidence no doubt
cast a strong suspicion regarding the involvement of
the appellant. But in a criminal trial the conviction
cannot be based on the basis of suspicion only.”
[13] Mr. Biswas, learned senior counsel has succinctly
submitted that if the approver ascribed no part of himself/herself
during the entire transaction of offence except to take care, he or
she cannot be said to be an accomplice approver. Reliance has
been placed for this contention on the decision of the apex court
in Suresh Chandra Bahri vs. State of Bihar, reported in AIR
1994 SC 2420, where it has been held that:
“43. The evidence of an approver does not differ from
the evidence of any other witness except that his
evidence is looked upon with great suspicion.
Consequently in the event the suspicion which is
attached to the evidence of an accomplice is not
removed his evidence could not be acted upon unless
corroborated in material particulars. But where the
suspicion is removed and the evidence of an approver
is found to be trustworthy and acceptable then that
evidence may be acted upon even without
corroboration and the conviction may be founded on
such a witness. Here in this connection it would be
appropriate to make reference to the provisions of S.
133 of the Evidence Act which deal with the
testimony of an accomplice. It contemplates that an
accomplice shall be a competent witness against an
accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated
testimony of an accomplice. The first part envisages  CRL.A (J) No.28 of 2014 Page 38 of 105
[38]
that an accomplice, in other words, a guilty
companion in crimes, shall be a competent witness
while the second part states that conviction is not
illegal merely because it is based on the
uncorroborated testimony of an accomplice. But if we
read S. 133 of the Evidence Act with illustration (b) of
S. 114 of the Evidence Act it may lead to certain
amount of confusion and misunderstanding as to the
real and true intention of the Legislature because
quite contrary to what is contained in S. 133
illustration (b) to S. 114 of the Evidence Act lays
down ‘that an accomplice is unworthy of credit,
unless he is corroborated in material particulars’. A
combine reading of the two provisions that is S. 133
and illustration (b) of S. 114 of Evidence Act go to
show that it was considered necessary to place the
law of accomplice evidence on a better footing by
stating in unambiguous terms that according to S.
133 a conviction is ‘not illegal or in other words not
unlawful’ merely because it is founded on the
uncorroborated testimony of an accomplice while
accepting that an accomplice is a competent witness.
But at the same time the Legislature intended to
invite attention to the illustration (b) of S. 114 of the
Evidence Act with a view to emphasis that the rule
contained therein as well as in S. 133 are parts of one
and the same subject and neither can be ignored in
the exercise of judicial discretion except in cases of
very exceptional nature. However, the difficulty in
understanding the combined effect of the
aforementioned two provisions arises largely due to
their placement at two different places of the same
Act. It may be noticed that illustration (b) attached to
S. 114 is placed in Chapter VII of Evidence Act while
S. 133 is inserted in Chapter IX of the Act. The better
course was to insert the illustration (b),to S. 114 as
an explanation or in any case a s a proviso to S. 133
of the Act instead of their insertion at two different
places and that too in different Chapters of Evidence
Act. In any case since an approver is guilty
companion in crime and, therefore, illustration (b) to
S. 114 provides a rule of caution to which the Courts,
should have regard. It is now-well Settled, by a long
series of decisions that except in circumstances of
special nature it is the duty of the Court to raise the
presumption in Sec. 114, illustration (b) and the
Legislature requires that the Courts should make the
natural presumption in that section as would be clear
from the decisions which we shall discuss
hereinafter.
* * * * *
45. Further in Ravinder Singh v. State of Haryana,
AIR 1975 SC 856, this Court while considering the
approver's testimony within the meaning of S. 133 of
the Evidence Act made the following observations
(para 12):
‘An approver is a most unworthy friend, if
at all, and he, having bargained for his
immunity, must prove his worthiness for
credibility in Court. This test is fulfilled,
firstly, if the story he relates involves him
in the crime and appears intrinsically to  CRL.A (J) No.28 of 2014 Page 39 of 105
[39]
be a natural and probable catalogue of
events that had taken place. The story if
given of minute details according with
reality is likely to save it from being
rejected brevi manu. Secondly, once that
hurdle is crossed, the story given by an
approver so far as the accused on trial is
concerned must implicate him in such a
manner as to give rise to a conclusion of
guilt beyond reasonable doubt. In a rare
case, taking into consideration all the
factors, circumstances and situations
governing a particular case, conviction
based on the uncorroborated evidence of
an approver confidently held to be true
and reliable by the Court may be
permissible. Ordinarily, however, an,
approver's statement has to be
corroborated in material particulars
bridging closely the distance between the
crime and the criminal. Certain clinching
features, of involvement disclosed by an
approver appertaining directly to an
accused, if reliable, by the touchstone of
other independent credible evidence,
would give the heeded assurance for
acceptance his testimony on which a
conviction may be based.’
Thus it is clear that a definite rule has been
crystallized to the effect that though a conviction can
be based on uncorroborated evidence of an
accomplice but as a rule of prudence it is unsafe to
place reliance on the uncorroborated testimony of an
approver as required by illustration (b) of S. 114 of
the Evidence Act.”
[Emphasis supplied]

[14] In Sarwan Singh Rattan Singh vs. State of
Punjab, reported in AIR 1957 SC 637, the apex court has held
that:
“7…..It is hardly necessary to deal at length with the
true legal position in this matter. An accomplice is
undoubtedly a competent witness under the Indian
Evidence Act. There can be, however, no doubt that
the very fact that he has participated in the
commission of the offence introduces a serious stain
in his evidence and courts are naturally reluctant to
act on such tainted evidence unless it is corroborated
in material particulars by other independent
evidence.
It would not be right to expect that such independent
corroboration should cover the whole of the
prosecution story or even all the material particulars.
If such a view is adopted it would render the
evidence of the accomplice wholly superfluous. On
the other hand, it would not be safe to act upon such
evidence merely because it is corroborated in minor  CRL.A (J) No.28 of 2014 Page 40 of 105
[40]
particulars or incidental details because, in such a
case, corroboration does not afford the necessary
assurance that the main story disclosed by the
approver can be reasonably and safely accepted as
true.
But it must never be forgotten that before the court
reaches the stage of considering the question of
corroboration and its adequacy or otherwise, the first
initial and essential question to consider is whether
even as an accomplice the approver is a reliable
witness. If the answer to this question is against the
approver then there is an end of the matter, and no
question as to whether his evidence is corroborated
or not falls to be considered.
In other words, the appreciation of an approver's
evidence has to satisfy a double test. His evidence
must show that he is a reliable witness and that is a
test which is common to all witnesses. If this test is
satisfied the second test which still remains to be
applied is that the approver's evidence must receive
sufficient corroboration. This test is special to the
cases of weak or tainted evidence like that of the
approver……”
It has been further held there that:
“8. The argument that the character of the
approver's evidence has not been considered by the
High Court cannot be characterised as merely
academic or theoretical in the present case because,
as we will presently point out, the evidence of the
approver is so thoroughly discrepant that it would be
difficult to resist the conclusion that the approver in
the present case is a wholly unreliable witness.
Indeed it may be legitimate to point out that the
learned Judges of the High Court have themselves
criticised the evidence of the approver in dealing with
the prosecution case against Gurdial Singh and have
ultimately found that the account given by the
approver is unreliable and, though there was
circumstantial evidence which raised an amount of
suspicion against Gurdial Singh, that would not be
enough to sustain his conviction.
It seems to us that if it was found that the approver's
account against one of the accused persons was
wholly discrepant, this finding itself should inevitably
have led the court to scrutinise his evidence in
respect of the other accused persons with greater
caution. Besides, it is somewhat unfortunate that the
attention of the learned Judges of the High Court was
presumably not drawn to the still more serious
discrepancies in the evidence of the approver in
regard to the part assigned to Harbans Singh in the
commission of the offence.
In the evidence given by the approver before the trial
court, he has definitely and unequivocally implicated
Harbans Singh in the commission of the offence. It
has been brought out in the cross-examination that in
the very first statement made by the approver before  CRL.A (J) No.28 of 2014 Page 41 of 105
[41]
the investigating officer on 25th November he had
made statements about Harbans Singh which are
wholly inconsistent with the subsequent story. In this
statement, the approver had definitely stated that
only the three of them were concerned with the
commission of the offence, himself, Sarwan Singh
and Gurdial Singh. He had also stated clearly in the
said statement that Harbans Singh did not join in
murdering Gurdev Singh.
It is remarkable that in regard to almost every
material particular about the part played by Harbans
Singh in the commission of the offence the story
disclosed by the approver at the trial is inconsistent
with his first statement before the police. In his
statement at the trial, the approver assigns Gurdial
Singh the possession of lathi and according to him
Gurdial Singh subsequently took up the kirpan from
Sarwan Singh and murdered Gurdev Singh after
which Harbans Singh himself gave a blow with it at
the neck of the victim. In his statement before the
police, the approver had said that Gurdial Singh had
carried a kirpan.
We are deliberately not referring to the several other
minor discrepancies which have been brought out in
the evidence of the approver in his crossexamination.
In our opinion, the discrepancies
brought out in the evidence of the approver qua the
prosecution case against Gurdial Singh coupled with
the more serious discrepancies in his evidence in the
prosecution case against Harbans Singh lead to only
one conclusion and that is that the approver has no
regard for truth.
It is true that in his second statement recorded on
29th November, the approver substantially changed
his first story and involved Harbans Singh in the
commission of the offence, and in that sense, his
second statement can be said to be consistent with
his evidence at the trial. But we cannot lose sight of
the fact that, within three days after the recording of
his second statement, he was granted pardon and his
statement was recorded under s. 164 of the Code of
Criminal Procedure on the same day.
Therefore it would be legitimate for the accused to
contend that the additions made by the approver in
his subsequent statement may be the result of
promise held out to him that he would be granted
pardon. Apart from this consideration, in view of the
positive statements made by the approver in his first
recorded statement, there can be no doubt that the
subsequent allegations against Harbans Singh are
improvements and are the result of his decision to
involve Harbans Singh in the commission of the
offence.
If this was a case where the statements made by the
approver on subsequent occasions merely added
details which were not included in the first
statement, it may perhaps have been a different
matter. It is true that omissions have not always the
same significance as contradictions; but in the
present case it is patent that the two sets of
statements are wholly inconsistent and irreconcilable  CRL.A (J) No.28 of 2014 Page 42 of 105
[42]
and that obviously leads to a very serious infirmity in
the character of the witness.
It is indeed to be regretted that the attention of the
learned Judges of the High Court was not drawn to
this aspect of the matter and they were not invited to
consider the initial question as to whether the
approver, Banta Singh, was a reliable witness at all.
Every person who is a competent witness is not a
reliable witness and the test of reliability has to be
satisfied by an approver all the more before the
question of corroboration of his evidence is
considered by criminal courts.”
[15] The principle has been developed since long in
Bhuboni Sahu vs. The King, reported in AIR 1949 Privy
Council 257, it has been held that:
“10. In the present case their Lordships are in
complete agreement with the Judges of the High
Court in declining to act upon the evidence of the
approver supported only by the confession of Trinath.
These two persons appear to have been nothing but
hired assassins. They had ample opportunity of
preparing their statements in concert, and in
addition, the approver has sworn to two
contradictory stories, and Trinath has denied that his
confession was true. It is true that no motive is
shown for their falsely implicating the appellant, but
motive is often a matter of conjecture. It may be that
these two men thought it advisable to say falsely that
they were acting on the instigation of another rather
than on their own initiative, or they may have had
reasons of their own for wishing to conceal the name
of the real instigator.”
[16] Mr. Biswas, learned senior counsel thereafter making
a comparative analysis of the statement of the approver (PW-40)
made in different stages and different times has submitted that
she is not only incoherent or inconsistent to her statements but
also deliberately improved those statements only to implicate the
appellant. Such statement is liable to be discarded as those are
not reliable for returning the conviction. He further relied on a
decision of the apex court in this regard in Baldev Singh vs.  CRL.A (J) No.28 of 2014 Page 43 of 105
[43]
State of Punjab, reported in AIR 1979 SC 1280. The relevant
passages of that report are gainfully reproduced hereunder:
“3. 14 witnesses were examined in support of the
prosecution case. Gurmit Kaur (P. W. 6) testified to
having seen her father being taken away by the
accused and Gurmel Singh (P. W. 8) in a tractor and a
trolly on the morning of the 21st July 1969. Fauja
Singh (P. W. 10) also stated that at the bus stand at
village Sadhugarh, Gurbachan Singh accused has got
down from the trolly in which the other travellers
were Baldev Singh, Gurmel Singh (P. W. 8) and the
deceased and which was being towed by a tractor
driven by Hardev Singh accused. The main evidence
against the accused, however, consisted of the
testimony of the approver, namely, Gurmel Singh (P.
W. 8), and of the circumstances of the recovery of the
dead body at the instance of Baldev Singh accused.
* * * * *
7. The very participation of the approver in the
alleged conspiracy and the commission of the
offences of abduction and murder is ex facie
improbable. He is not shown to be connected with the
family of the appellant by ties of blood or marriage.
Besides, he belongs to a different village and it is not
his case that he and the accused were so thick with
each other that he would die for them and they for
him. The only assertion about his relations with them
is that he was on visiting terms with them, which is a
state of affairs such as would not normally prompt
the accused to take him into confidence about such a
serious matter as murder. Nor was he promised any
remuneration. Why then would he put his neck into
the noose? The natural conduct on his part when he
was asked to be a party to the murder at the time of
the alleged conspiracy would be to disclaim all
interest therein or in any case to keep quiet, go back
home and not react favourably to any further attempt
to rope him in. His stand that he was a willing party
to the conspiracy as also to the abduction and murder
appears highly unnatural to us.
And then what part did he actually take in the
abduction and the murder? He says that he was
called by the accused and travelled along with them
in the trolly and all that he did was that he caught
hold of the legs of the deceased after the latter had
received fatal injuries at the hands of the appellant.
Why the legs were so caught is not stated and
appears to be something really funny and incredible.
The third improbability in the approver's evidence
consists of his visit to the police station at Sirhind. He
says that he got frightened by the rumour that he had
been named as one of the culprits who had abducted
and murdered Inder Singh and that, therefore, he
contacted the police in order to find out whether
there was any truth in the rumour. This conduct on
his part is wholly unnatural. The rumour would have
persuaded him to make himself scarce rather than to  CRL.A (J) No.28 of 2014 Page 44 of 105
[44]
go to the police which was the very thing he was
afraid of.
And then it is hard to believe that the deceased
would, for the mere asking, accompany the accused
in their trolly when he had expressed his abhorrence
of their misconduct towards his daughter not only by
declaring his intention to cancel the will but also by
shifting his residence back to his own house.
All these improbabilities relate to important aspects
of the prosecution case and cannot be ignored on the
plea that they do not touch the main fabric of the
story given by the approver.
8. Ex. D. A. is the statement which the approver made
to Assistant Sub-Inspector Dalip Singh (P. W. 11) on
the 4th August 1969. In that statement there is no
mention of the motive part of the prosecution case,
the conspiracy, any part having been taken by the
approver in the occurrence or of any one of the
accused having jumped on the chest of the deceased.
Even in Ex. P. B. which is the statement of the
approver recorded by Shri Amjad Ali Khan (P. W. 3),
the incident in which Gurmit Kaur (P. W. 6) was
abused does not find any place, nor does a reference
appear therein to Baldev Singh accused jumping on
the chest of the deceased. The story in Ex. P. B. is
given in a neat chronological order which appears to
be the handiwork of some brain more clever than that
of the approver himself. It was in his deposition
before the court that the approver for the first time
mentioned that on the day of the liquor party the
three accused and the approver himself had hurled
abuses at the girl. It may be noted that a reference to
the liquor party and the fact that the approver was
present thereat do find a mention of Ex. P. B. Had the
story of the abuses been correct, there is no reason
why he should not have mentioned it in that
document which is a detailed one. The averment that
the appellant had jumped on the chest of the
deceased is also disclosed by him for the first time in
his deposition in court. The fact is of such vital
importance that the approver could not have failed to
disclose it in either of the two documents Exhibits D.
A. and P. B. As it is, we have a strong feeling that the
approver had been improving his story from time to
time in order to give support to the prosecution case
and not because it was the truth. In its main
features, therefore, we cannot accept the story as
trustworthy even in regard to Baldev Singh who must
also be treated at par with his two co-accused except
in relation to the offence covered by Section 201 of
the Indian Penal Code which is established against
him by reason of the approver's deposition coupled
with the very reliable material in proof of the
recovery of the dead body at the instance of the
appellant which is testified to by Pyara Singh (P. W.
9) and Assistant Sub-Inspector Dalip Singh (P. W.
11) both of whom have been believed on the point by
the two courts below and for good reasons which we
need not repeat.”  CRL.A (J) No.28 of 2014 Page 45 of 105
[45]
[17] Thereafter, Mr. Biswas, learned senior counsel has
submitted that the approver’s testimony has not been
corroborated in the material particulars by the reliable witnesses.
He has also submitted that unless the approver implicates himself
or herself, his or her statement does not give rise to a conclusion
of guilt beyond reasonable doubt. He has referred to the decision
of the apex court in Ram Narain vs. State of Rajasthan,
reported in AIR 1973 SC 1188, where it has been held that:
“8. Turning to the second point we may first state the
legal position relating to the testimony of an
approver. Section 133, Indian Evidence Act, which
falls in Ch. IX dealing generally with witnesses,
expressly provides that an accomplice is a competent
witness and the conviction is not illegal merely
because it proceeds on uncorroborated testimony of
an accomplice. In other words, this section renders
admissible such uncorroborated testimony. But this
section has to be read along with illustration (b) to
Section 114 which falls in Ch. VII, dealing with
burden of proof. Section 114 empowers the court to
presume the existence of certain facts and the
illustrations elucidate what the court may presume
and make clear by means of examples as to what
facts the court shall have regard in considering
whether or not the maxims illustrated apply to a
given case before it. Illustration (b) in express terms
says that an accomplice is unworthy of credit unless,
he is corroborated in material particulars : two
examples are also given to further explain this
subject. The statute thus permits the conviction of an
accused person on the basis of uncorroborated
testimony of an accomplice but the rule of prudence
embodied in illustration (b) of Section 114 strikes a
note of warning cautioning the court that an
accomplice does not generally deserve to be believed
unless corroborated in material particulars. This rule
of caution is traceable to the fact that an accomplice
witness from the very nature of his position is a
suspect. This rule is guided by long human
experience and has become a rule of prudence of
general application. The courts, therefore, consider it
prudent to look for corroboration in material
particulars for sustaining the conviction of an
accused person. An approver who is admittedly guilty
of the crime is an accomplice who has betrayed his
associates and has apparently sought pardon for
saving his own skin. In other words he has purchased
complete immunity for his prosecution at the expense
of his associated by agreeing to give evidence against
them for the prosecution. He is, therefore, presumed
not to be a man of high character or a fair witness.
His pardon being conditional, to pleased the  CRL.A (J) No.28 of 2014 Page 46 of 105
[46]
prosecution he may well weave some false detail into
the true details of the prosecution story and may also
falsely involve some innocent person. There is thus a
real danger of his telling a story true in general
outline but containing some untruth which he can
easily work into the story. It is for this reason that
the courts as a matter of prudence and caution
anxiously look for some corroboration to satisfy their
conscience that the approver's testimony which is
clearly admissible is also worthy of belief. One can of
course visualize an accomplice who is genuinely
repentant for the commission of his crime and truly
desires to make a clean breast of the whole affair by
way of penitence. But even in such cases the court
has to judicially determine the extent to which his
uncorroborated testimony can be considered as
trustworthy by looking to the other relevant material
and the attending circumstances on the basis of
which the accused can be safely convicted. The rule
which seems to emerge from the foregoing
discussion and judicial decisions is that the necessity
of corroboration as a matter of prudence except when
it is safe to dispense with such corroboration must be
clearly present to the mind of the judge.
* * * * *
19. We now turn to the charge of criminal conspiracy
under Section 120-B, I.P.C. as a separate and distinct
offence independent of the offence under
Section 467, I.P.C. No doubt in almost every case of
conspiracy it is generally a matter of inference, direct
independent evidence being seldom, if ever,
forthcoming. But inferences are normally deduced
from acts of parties in pursuance of apparent criminal
purpose in common between them. Of such criminal
acts the evidence in the case under appeal has not
been accepted by us. The evidence of the approver
(P.W. 1) who would of course be competent to prove
the substantive charge of conspiracy, which has not
been believed by us with respect to forgery is not
easy to accept with respect to the charge of
conspiracy. His version with regard to it is far from
convincing. Though he claims to have prepared 200
pattas and order sheets, evidence regarding only four
was led and that too not trustworthy. For the first
time he disclosed the story to the police after arrest
in expectation of help from them. On his evidence
uncorroborated as it is, the charge of conspiracy as
framed cannot be sustained. We have, therefore, no
option but to allow this appeal, quash the appellant's
conviction and acquit him.”
For the same principle he has also relied on a decision
of the apex court in Ravinder Singh vs. State of Haryana,
reported in AIR 1975 SC 856, where it has been held that:
“12. An approver is a most unworthy friend, if at all,
and he, having bargained for his immunity, must
prove his worthiness for credibility in court. This test
is fulfilled, firstly, if the story he relates involves him
in the crime and appears intrinsically to be a natural  CRL.A (J) No.28 of 2014 Page 47 of 105
[47]
and probable catalogue of events that had taken
place. The story if given, of minute details according
with reality is likely to save it from being rejected
brevi manu. Secondly, once that hurdle is crossed,
the story given by an approver so far as the accused
on trial is concerned, must implicate him in such a
manner as to give rise to a conclusion of guilt beyond
reasonable doubt. In a rare case taking into
consideration all the factors, circumstances and
situations governing a particular case, conviction
based on the uncorroborated evidence of an approver
confidently held to be true and reliable by the court
may be permissible. Ordinarily, however, an
approver's statement has to be corroborated in
material particulars bridging closely the distance
between the crime and the criminal. Certain clinching
features of involvement disclosed by an approver
appertaining directly to an accused, if reliable, by the
touchstone of other independent credible evidence,
would give the needed assurance for acceptance of
his testimony on which a conviction may be based.”
[18] Mr. Biswas, learned senior counsel while dealing with
the various episodes as narrated by the witnesses whether
forming the circumstances so closely knit to exclude hypothesis of
innocence against the appellant has submitted that it has been
proved that PWs-1 and 40 have stated in their statements
recorded under Section 161 of the Cr.P.C. and in the ejahar
recorded on 19.05.2013 that at the time of alleged occurrence,
Balaram Ghosh was in the bathroom and on being called by PW-
40, he came out to resist the assailants when only he was
attacked by the assailants and in that scuffling one pair of sandal
was left on the place of occurrence. Moreover, in the inquest
report of the deceased, Balaram Ghosh it has been clearly
observed that he was only wearing a short pant and a jangia at
the time of alleged occurrence which according to Mr. Biswas,
learned senior counsel points out Balaram’s being in the bathroom
and that has corroborated the statement made by the approver in  CRL.A (J) No.28 of 2014 Page 48 of 105
[48]
the oral ejahar. As such, the improved version of PW-40 that
Balaram killed Ranjit Choudhury and also in the scuffling with
Sujit Bhattacharjee, both Sujit and Balaram fell victim having
received the fatal injuries cannot be believed by this Court. Mr.
Biswas, learned senior counsel has further submitted that PW-40
has categorically stated that there was profuse bleeding from the
injuries sustained by Balaram Ghosh and Sujit Bhattacharjee. PW-
37, Dr. Ranjit Kr. Das, who conducted the postmortem
examination of the injured deceased has specifically stated that
there was profuse blood or gush of blood from the injury
sustained by the deceased. Both PWs-40 and 41 have admitted
that the distance between the dead body of Balaram and Sujit is
about 3/4 meters and PW-41 specifically admitted in the crossexamination
that he did not find any chain of blood around the
place. According to Mr. Biswas, learned senior counsel, it is a
definite pointer to show that PW-40 did not see the occurrence or
she has suppressed the real fact from the court. Thus, her
evidence cannot be relied for purpose of returning the finding of
conviction. Mr. Biswas, learned senior counsel has relied on a few
decisions of the apex court to nourish his submission in this
regard.
[19] In Karunakaran vs. State of Tamilnadu, reported
in AIR 1976 SC 383, the apex court held that:

“12. Another very serious departure from his earlier
version is that while PW 4 had stated in the first
information report that ‘my elder brother’ (meaning CRL.A (J) No.28 of 2014 Page 49 of 105
[49]
the deceased) was ‘chasing him from behind’ in Court
he has completely given a goby to this statement and
stated that Karunakaran was being chased by PWs 1,
2 and 3. He did not at all refer to the deceased
chasing him. If his statement in court that he saw
PWs 1, 2 and 3 chasing Karunakaran while running
away after the assault is true, it is difficult to
appreciate that he would not mention about this fact
in the first information report. He admitted in the
course of cross-examination that the Sub-Inspector
asked him whether he had any witnesses and that he
‘did not tell them due to excitement.’ It is difficult to
accept this explanation of this witness. Assuming
that his earlier version in the first information report
is true that the deceased chased the accused as the
latter was running away after the assault we would
have expected some evidence of a trial of blood
stains from the place where he was sleeping to the
place where he fell dead. On the other hand we find
that there is a mention about a pool of blood only
where the dead body was found at No. 1 in the site
plan. There were also no blood stains on the bench
where he was said to be sleeping. We further find
from the evidence of PW 4 in cross-examination that
when he went near his deceased elder brother about
hundred persons were there and ‘none of them asked
him as to how it had happened.’ We do not find in
this case a single witness out of that crowd produced
in court for the purpose of corroborating PW 4. If the
statement of PW 4 is to be believed, the crowd had
gathered at the place of occurrence already when he
arrived. It is also conceivable that those persons who
arrived at the place of occurrence a little earlier than
PW 4, did not see the assailants who might have
already escaped. It also stands to reason that those
persons who gathered would not ask PW 4, who
arrived at the place a little later, for information with
regard to the assailants. There is considerable doubt
as to his testimony with regard to seeing the accused
running away from the place of occurrence. When the
accused is going to lose his life in such a serious
charge it is only necessary that the court should be
circumspect and closely scrutinize the evidence to
come to an unhesitating conclusion that he is
absolutely reliable. We are unable to say that the
High Court in this case has made a correct approach
in assessing the quality of the testimony of this
solitary eye-witness. The High Court is not even right
that PW 4 stands wholly corroborate by the contents
of the FIR. On the other hand we have shown that his
version in the FIR stands contradicted by the
testimony in court on a very material point.”
[Emphasis supplied]
 If it is assumed that her earlier version in the ejahar
was true as Balaram was running away after the assault, there
would have been some trail of blood from the place where he was  CRL.A (J) No.28 of 2014 Page 50 of 105
[50]
initially suffered the injury to the place where he fell on the
ground. Some blood was only found where his body was found.
[20] In this regard Mr. Biswas, learned senior counsel has
relied on a decision in Hem Raj and others vs. State of
Haryana, reported in (2005) 10 SCC 614, where it has been
observed as under:
“10. One more aspect which deserves notice is that at
the alleged scene of offence, no blood-stains were
found by the I.O., though he made a search. The
surmise of the High Court that the blood stains at the
public place would have disappeared in view of the
time gap between the incident and the I.O.'s
inspection may not be correct, especially, in view of
the fact that it is a metal road, as shown by PW8 in
the site plan and it was night time. It is difficult to
believe that traces of blood would fade out by the
time of the visit of I.O. This is one of the
circumstances that has to be kept in mind while
appreciating the prosecution case.”
[21] It is difficult to believe according to Mr. Biswas,
learned senior counsel, that trace of blood would disappear by the
time when the investigating officer rushed in the place of
occurrence. It is one of the important circumstances which were
not considered at all by the trial court. In this regard, Mr. Biswas,
learned senior counsel has again placed reliance on a decision of
the apex court in D.V. Shanmugham and another vs. State of
Andhra Pradesh, reported in (1997) 5 SCC 349, where it has
been held that:
“11. It would also appear from the materials on
record that though accordingly to the eye-witnesses
the incident occurred in front of the house of accused
No. 3 where both deceased Mohan and Sekhar were
stabbed by accused No. 2 and while taking the
injured persons Mohan fell down in front of the house
of Prabhakar as a result of which blood fell down in
front of the house of Prabhakar, yet it is difficult to
imagine as to how blood stains were found from the  CRL.A (J) No.28 of 2014 Page 51 of 105
[51]
house of Prabhakar upto the house of Venkat Reddy
and even on the Veranda of the house of Venkat
Reddy as has been stated by PW-2 and PW-22 one of
the investigating officers and according to the said
PW-22 the distance between Prabhakar's house and
Venkat Reddy's house is more than 120 feet. Though
Mohan and Sekhar were stabbed in front of the house
of accused No. 3 as stated by the prosecution
witnesses but blood stains being available upto the
house of Prabhakar is explained from the fact that
the injured persons were carried upto that place but
beyond that it is no body's case that the injured
persons were carried any further and as such no
explanation is forthcoming as to how blood stains
could be found upto the Veranda of the house of
Venkat Reddy and then blood stained stones were
also recovered from the Veranda of said Venkat
Reddy. This feature also indicates that the
prosecution witnesses are not sure as to where the
occurrence took place. It also appeared from the
evidence of PW-2 and PW-8 that there were several
other people who witnessed the occurrence and they
are not the residents of that locality. If such
independent witnesses were available and yet were
not examined by the prosecution and only those
persons who are related to the deceased were
examined then in such a situation the prosecution
case to be scrutinized with more care and caution.
Further Mr. Parasaran is right in his submission that
the witnesses ascribed the role of catching hold of
Mohan by accused No. 1 and role of catching hold of
Sekhar by accused No. 3 and the High Court gave the
benefit to accused No. 3 since the witnesses had not
narrated the same to the police when examination
under Section 161 Cr. PC. took place and therefore
the self same infirmities having crept in when the
prosecution witness stated about catching hold of
Mohan by accused No. 1, the said accused No. 1 is
entitled to the benefit of doubt. In fact as stated
earlier Mrs. Amreshwari, the learned senior counsel
appearing for the State also fairly stated that possibly
it would be difficult to sustain the conviction of
accused No. 1 when the accused No. 3 has got benefit
and has been acquitted and no appeal against the
said order of acquittal has been filed by the State. On
account of such infirmities in the prosecution case as
indicated above and more particularly when the
prosecution has failed to offer any explanation for the
grievous injuries sustained by accused No. 1 on his
head and the High Court has already found that the
said injury was caused in course of the incident, we
have no hesitation to hold that the accused -
appellant No. 1 D.V. Shanmugam is entitled to the
benefit of doubt and we accordingly set aside the
conviction and sentence of the said accused -
appellant No. 1 both under Section 302/34 IPC as
well as under Section 324 IPC and direct that he shall
be set at liberty forthwith if his detention is not
required in any other case.”
[22] On the result of the forensic examination, Mr. Biswas,
learned senior counsel has expressed his serious doubt that  CRL.A (J) No.28 of 2014 Page 52 of 105
[52]
whether such report can at all be relied on inasmuch as that the
date of sealing, date of packing and place of packing were not
mentioned. PW-36, Dr. S. Nath, the forensic expert has
specifically stated in the trial court that the date of sealing, date
of packing and place of packing were not mentioned when he
received the materials for examination. He found on the packet
the specimen signature of SDPO and except the signature of
SDPO, he did not find any other signature on the said parcel or
inside the parcel. He found 19(nineteen) numbers of packets but
there was no mention in those packets where those were packed
or whether those were collected in presence of the witnesses. In
forwarding the report, he did not find any signature except the
signature of the SDPO. Hence, the report of the forensic experts is
of no utility as those articles were not packed or sealed by the
investigating officer at the place of occurrence. Having referred to
the testimony of PW-41, the investigating officer, Mr. Biswas,
learned senior counsel has submitted that the said witnesses
candidly admitted that there is no record to show that the seized
articles were sealed and packed in presence of any witness at the
place of occurrence. Even the photographs as produced by him
also did not show that those were seized in presence of the
witnesses. He placed reliance on the apex court decision in Salim
Akhtar alias Mota vs. State of Uttar Pradesh, reported in AIR
2003 SC 4076, where the apex court held that since the seized
arms alleged to have been recovered at the pointing out of the  CRL.A (J) No.28 of 2014 Page 53 of 105
[53]
appellant was not sealed on the spot coupled with the fact that
neither its number or its make etc. fix its identity to mention in
the recovery memo or in the FIR raises considerable doubt
regarding factum of recovery.
 Another decision of the apex court in Ashok @
Dangra Jaiswal vs. State of Madhya Pradesh, reported in
(2011) 5 SCC 123 has been relied by Mr. Biswas, learned senior
counsel, where it has been enunciated as under:
“10. The seizure of the alleged narcotic substance is
shown to have been made on 08.03.2005, at 11:45 in
the evening. The samples taken from the seized
substance were sent to FSL on 10.03.2005, along
with the draft, Exhibit P.31. The samples sent for
forensic examination were, however, not deposited at
the FSL on that date but those came back to the
police station on 12.03.2205 due to some mistake in
the draft or with some query in respect of the draft.
The samples were sent back to the FSL on 14.03.
2005, after necessary corrections in the draft and/or
giving reply to the query and on that date the
samples were accepted at the FSL. From the time of
the seizure in the late evening of 08.03.2005, till
their deposit in the FSL on 14.03.2005, it is not clear
where the samples were laid or were handled by how
many people and in what ways.
11. The FSL report came on 21.03.2005, and on that
basis the police submitted charge-sheet against the
accused on 31.03.2005, but the alleged narcotic
substance that was seized from the accused,
including the appellant was deposited in the
Malkhana about two months later on 28.05.2005.
There is no explanation where the seized substance
was kept in the meanwhile.”
[23] Mr. Biswas, learned senior counsel has further
submitted that PW-36, the forensic expert has mentioned in the
report that he had collected the swab from the entire knife
(Exbt.M.O.2) and from examination of that swab it appeared to
him that the blood found on the knife was a mix of blood of Sujit
Bhattacharjee, Balaram Ghosh and Ranjit Choudhury. According  CRL.A (J) No.28 of 2014 Page 54 of 105
[54]
to the defence, it shows that by the said knife three persons were
killed but the prosecution did not collect the fingerprints of the
assailants from the handle of the knife. The same has been
omitted to suppress the real fact deliberately. PW-36 has admitted
that the handle of the knife was not examined by the fingerprint
expert. Moreover, PW-41 has admitted that even though he had
instructed the expert to collect the fingerprint and footprint from
the dagger and the chappal, he has admitted that nowhere in the
report it has been observed that the fingerprint and footprint
which are collected were invisible. He has admitted that the result
of the fingerprint examination nor any certificate thereof has been
produced in the trial and as such, for holding back of the result of
the examination by the expert should invoke adverse inference by
the court. Thereafter, Mr. Biswas, learned senior counsel has
submitted that PW-37, Dr. Ranjit Kr. Das has opined that if the
assailants were physically very close to the deceased and in that
event blood from the injuries in all probability would sprinkle on
the body of the assailants. Moreover, from the statement made by
PW-40, it is apparent that the deceased Sujit Bhattacharjee was
lying on the ground and Balaram Ghosh was sitting on his chest.
If that is believed, Balaram’s blood is bound to be found in the
wearing apparels of Sujit Bhattacharjee or the vice versa but the
forensic expert has clearly stated that he did not find any such
blood on the wearing apparels of the deceased. This circumstance
itself indicates that the prosecution’s story as weaved by PW-40 is  CRL.A (J) No.28 of 2014 Page 55 of 105
[55]
untrustworthy. For purpose of establishing motive, the
prosecution has attempted to make out a case against the
appellant is that he was involved with illegal business including
the business of chit fund. PW-40 in her cross-examination has
made a clear statement that she had no knowledge of such illegal
business of the appellant. Even PW-41 has admitted that he failed
to collect any evidence regarding involvement of the appellant
with any illegal business. PW-40 has stated that Balaram Ghosh
disclosed to her that he had committed the murder of Ranjit
Choudhury having directed by Sushil Choudhury. Such statement
has been made by the approver (PW-40) for the first time in the
trial. No such statement is available in the oral ejahar or in her
statement recorded under Section 161 of the Cr.P.C., or in the
statement as recorded under Section 306 (4) of the Cr.P.C.
Another such statement has been made by PW-40 that her
daughter PW-1 disclosed to her that she saw the appellant
catching hold of the hair of Ranjit Choudhury and Balaram
committing the murder by inflicting the dagger injuries having
been directed by Sushil Choudhury, is made for the first time in
the trial. Even no indication in this regard is available in the
statement of the approver as recorded under Section 306(4) of
the Cr.P.C. Clearly these two statements are improved and those
cannot be relied on for purpose of returning the finding of
conviction.  CRL.A (J) No.28 of 2014 Page 56 of 105
[56]
[24] Reliance has been placed on a decision of the apex
court in Tahsildar Singh and Anr. vs. The State of Uttar
Pradesh, reported in AIR 1959 SC 1012, where it has been held
that:
“16. The object of the main section as the history of
its legislation shows and the decided cases indicate is
to impose a general bar against the use of statement
made before the police and the enacting clause in
clear terms says that no statement made by any
person to a police officer or any record thereof, or
any part of such statement or record, be used for any
purpose. The words are clear and unambiguous. The
proviso engrafts an exception on the general
prohibition and that is, the said statement in writing
may be used to contradict a witness in the manner
provided by S.145 of the Evidence Act. We have
already noticed from the history of the section that
the enacting clause was mainly intended to protect
the interests of accused. At the state of investigation,
statements of witnesses are taken in a haphazard
manner. The police-officer in the course of his
investigation finds himself more often in the midst of
an excited crowd and babel of voices raised all round.
In such an atmosphere, unlike that in a Court of Law,
he is expected to hear the statements of witnesses
and record separately the statement of each one of
them. Generally he records only a summary of the
statements which appear to him to be relevant. These
statements are, therefore, only a summary of what a
witness says and very often perfunctory. Indeed, in
view of the aforesaid facts, there is a statutory
prohibition against police officers taking the
signature of the person making the statement,
indicating thereby that the statement is not intended
to be binding on the witness or an assurance by him
that it is a correct statement.
17. At the same time, it being the earliest record of
the statement of a witness soon after the incident,
any contradiction found therein would be of immense
help to an accused to discredit the testimony of a
witness making the statement. The section was,
therefore, conceived in an attempt to find a happy via
media, namely, while it enacts an absolute bar
against the statement made before a police-officer
being used for any purpose whatsoever, it enables
the accused to rely upon it for a limited purpose of
contradicting a witness in the manner provided by
S. 145 of the Evidence Act by drawing his attention to
parts of the statement intended for contradiction. It
cannot be used for corroboration of a prosecution or
a defence witness or even a Court witness. Nor can it
be used for contradicting a defence or a Court
witness. Shortly stated, there is a general bar against
its use subject to a limited exception in the interest
of the accused, and the exception cannot obviously
be used to cross the bar.
18. If the provisions of the section are construed in
the aforesaid background, much of the difficulty  CRL.A (J) No.28 of 2014 Page 57 of 105
[57]
raised disappears. Looking at the express words used
in the section, two sets of words stand out
prominently which afford the key to the intention of
the legislature. They are : ‘statement in writing’, and
‘to contradict’. ‘Statement’ in its dictionary meaning
is the act of stating or reciting. ‘Prima facie’ a
statement cannot take in an omission. A statement
cannot include that which is not stated. But very
often to make a statement sensible or self-consistent,
it becomes necessary to imply words which are not
actually in the statement. Though something is not
expressly stated, it is necessarily implied from what
is directly or expressly stated. To illustrate : 'A' made
a statement previously that he saw 'B' stabbing 'C' to
death; but before the Court he deposed that he saw
'B' and 'D' stabbing 'C' to death : the Court can imply
the word ‘only’ after 'B' in the statement before the
police. Sometimes a positive statement may have a
negative aspect and a negative one a positive aspect.
Take an extreme example: if a witness states that a
man is dark, it also means that he is not fair. Though
the statement made describes positively the colour of
a skin, it is implicit in that statement itself that it is
not of any other colour. Further, there are occasions
when we come across two statements made by the
same person at different times and both of them
cannot stand or co-exist. There is an inherent
repugnancy between the two and, therefore, if one is
true, the other must be false. On one occasion a
person says that when he entered the room, he saw
'A' shooting 'B' dead with a gun; on another occasion
the same person says that when he entered the room
he saw 'C' stabbing 'B' dead; both the statements
obviously cannot stand together, for, if the first
statement is true, the second is false and vice versa.
The doctrine of recital by necessary implication, the
concept of the negative or the positive aspect of the
same recital, and the principle of inherent
repugnancy, may in one sense rest on omissions, but,
by construction, the said omissions must be deemed
to be part of the statement in writing. Such omissions
are not really omissions strictly so called and the
statement must be deemed to contain them by
implication. A statement, therefore, in our view, not
only includes what is expressly stated therein, but
also what is necessarily implied therefrom.
19. ‘Contradict’ according to the Oxford Dictionary
means to affirm to the contrary. Section 145 of the
Evidence At indicates the manner in which
contradiction is brought out. The cross-examining
Counsel shall put the part or parts of the statement
which affirms the contrary to what is stated in
evidence. This indicates that there is something in
writing which can be set against another statement
made in evidence. If the statement before the policeofficer
- in the sense we have indicated - and the
statement in the evidence before the Court are so
inconsistent or irreconcilable with each other that
both of them cannot co-exist, it may be said that one
contradicts the other.
* * * * *
29. Would those two omissions satisfy the test laid
down by us? The witness stated in the Court that
there was a gas-lamp and that some of the  CRL.A (J) No.28 of 2014 Page 58 of 105
[58]
miscreants scrutinized the faces of the dead bodies.
In their statements before the police they did not
mention the said two facts and some of the witnesses
stated that there were lanterns. Taking the gas-lamp
first: the scene of occurrence was not a small room
but one spreadover from the well to Bankey's house.
From that omission in the statement it cannot
necessarily be implied that there was no gas-lamp in
any part of the locality wherein the incident took
place; nor can it be said that, as the witnesses stated
that there were lanterns, they must be deemed to
have stated that there was no gas-lamp, for the word
‘lantern’ is comprehensive enough to take in a gaslantern.
It is also not possible to state that the
statements made before the police and those made
before the Court cannot co-exist, for there is no
repugnancy between the two, as even on the
assumption that lantern excludes a gas-lantern, both
can exist in the scene of occurrence. The same can be
said also about the scrutiny of the faces of the dead
bodies. In the statements before the police, the
movements of the appellants were given. It was
stated that they shot at the people and decamped
with the gun of Bharat Singh. The present evidence
that in the course of their pursuit, they looked at the
faces of two of the dead bodies does not in any way
contradict the previous versions, for the said incident
would fit in with the facts contained in the earlier
statements. The appellants could have shot at the
audience, pursued them, taken the gun of Bharat
Singh and on their way scrutinized the dead bodies.
The alleged omission does not satisfy any of the
principles stated by us.
* * * * *
50. It must not be overlooked that the crossexamination
must be directed to bringing out a
contradiction between the statements and must not
subserve any other purpose. If the cross-examination
does anything else, it will be barred under S. 162,
which permits the use of the earlier statement for
contradicting a witness and nothing else. Taking the
example given above, we do not see why crossexamination
may not be like this:
Q. I put it to you that when you arrived on
the scene X was already running away
and you did not actually see him stab D as
you have deposed today?
A. No. I saw both the events.
Q. If that is so, why is your statement to
the police silent as to stabbing?
A. I stated both the facts to the police.
The witness can then be contradicted with his
previous statement. We need hardly point out that in
the illustration given by us, the evidence of the
witness in Court is direct evidence as opposed to
testimony to a fact suggesting guilt. The statement
before the police can only be called circumstantial
evidence of complicity and not direct evidence in the
strict sense.  CRL.A (J) No.28 of 2014 Page 59 of 105
[59]
* * * * *
59. This brings us to the consideration of the
questions, which were asked and disallowed. These
were put during the cross-examination of Bankey,
P.W. 30. They are:
Q. Did you state to the investigating
officer that the gang rolled the dead
bodies of Nathi, Saktu and Bharat Singh
and scrutinized them, and did you tell him
that the face of Asa Ram resembled that
of the deceased Bharat Singh?
Q. Did you state to the investigating
officer about the presence of the gas
lantern?
These questions were defective, to start with. They
did not set up a contradiction but attempted to obtain
from the witness a version of what he stated to the
police, which is then contradicted. What is needed is
to take the statement of the police as it is, and
establish a contradiction between that statement and
the evidence in Court. To do otherwise is to
transgress the bounds set by S.162 which, by its
absolute prohibition, limits even cross-examination to
contradictions and no more. The cross-examination
cannot even indirectly subserve any other purpose.
In the questions with which we illustrated our
meaning, the witness was not asked what he stated
to the police, but was told what he had stated to the
police and asked to explain the omission. It is to be
borne in mind that the statement made to the police
is 'duly proved' either earlier or even later to
establish what the witness had then stated.”
 [Emphasis supplied]
 In Radha Kumar vs. State of Bihar, reported in
(2005) 10 SCC 216, it has been held by the apex court as
under:
“3. As this appeal is bound to succeed on a short
question, there is no necessity to narrate the facts.
Suffice it to say that the allegation against the
appellant was that he fired two shots which hit one
Salo Devi who succumbed to injuries. The first
information report was lodged by PW 7 who having
not supported the prosecution case in court was
declared hostile. Other witnesses who claimed to be
eyewitnesses are PWs 2, 3, 4 and 6 out of whom PW
3 has been disbelieved by the trial court itself. As
such there remains evidence of PWs 2, 4 and 6. The
occurrence is said to have taken place on 19-3-1993
and these witnesses were examined in the Sessions
Court between 12-8-1994 and 11-1-1995 i.e. after
several months of the date of the alleged occurrence.
Undisputedly, these witnesses have not disclosed
complicity of the appellant in the crime in their
statement made before the police inasmuch as they  CRL.A (J) No.28 of 2014 Page 60 of 105
[60]
have not even disclosed the name of the appellant as
the accused in their statement made before the police
and for the first time in the Sessions Court after
several months they have disclosed complicity of the
appellant in the crime. No reason has been assigned
by the prosecution for non-disclosure of the name of
the appellant before the police by these witnesses.
This being the position, we are of the view that it
would not be safe to place reliance upon the
statement of these witnesses made for the first time
in the Sessions Court after several months of the
alleged occurrence without there being any
reasonable excuse for not naming the accused before
the police especially when the prosecution case has
not been supported by the informant who also
claimed to be an eyewitness.”
[Emphasis supplied]
[25] In response to the prosecution’s assertion that since
the occurrence has taken place in the house of the appellant the
burden shifted on him to prove as to how the death has taken
place. In this regard, Mr. Biswas, learned senior counsel has
submitted that the burden to prove the guilt is always on the
prosecution and when such burden is discharged the accused may
prove or place any particular fact within his special knowledge
under Section 106 of the Evidence Act to establish that he was not
guilty. The basic burden is always with the prosecution. Such
burden is heavier when the crime is more serious. In this regard,
reliance has been placed on a decision of the apex court in
Joydeb Patra and Ors. vs. State of West Bengal, reported in
2013 CRI.L.J. 2729, where it has been held as under:
“7. Learned Counsel for the State, Mr. Bijan Ghosh,
vehemently submitted that since the death took place
in the house of the appellants, burden was on the
appellants to prove as to how the death of the
deceased actually took place. He submitted that the
death of the deceased obviously took place under
very mysterious circumstances and when the medical
facilities were very near to the place of occurrence,
the appellants should have availed the medical
facilities but have not done so and this conduct of the
appellants has given scope to the prosecution to  CRL.A (J) No.28 of 2014 Page 61 of 105
[61]
believe that they were guilty of the offence under
Section 302/34, I.P.C.
8. We are afraid, we cannot accept this submission of
Mr. Ghosh. This Court has repeatedly held that the
burden to prove the guilt of the accused beyond
reasonable doubt is on the prosecution and it is only
when this burden is discharged that the accused
could prove any fact within his special knowledge
under Section 106 of the Indian Evidence Act to
establish that he was not guilty. In Sucha
Singh v. State of Punjab : (2001) 4 SCC 375, this
Court held:
‘We pointed out that Section 106 of the
Evidence Act is not intended to relieve the
prosecution of its burden to prove the
guilt of the accused beyond reasonable
doubt, but the section would apply to
cases where prosecution has succeeded in
proving facts for which a reasonable
inference can be drawn regarding the
existence of certain other facts, unless the
accused by virtue of special knowledge
regarding such facts failed to offer any
explanation which might drive the court
to draw a different inference.’
Similarly, in Vikramjit Singh v. State of Punjab :
(2006) 12 SCC 306, this Court reiterated:
‘Section 106 of the Indian Evidence Act
does not relieve the prosecution to prove
its case beyond all reasonable doubt. Only
when the prosecution case has been
proved the burden in regard to such facts
which was within the special knowledge
of the accused may be shifted to the
accused for explaining the same. Of
course, there are certain exceptions to the
said rule, e.g., where burden of proof may
be imposed upon the accused by reason of
a statute.’
9. As the prosecution has not been able to discharge
its burden of establishing beyond reasonable doubt
that the deceased died due to poisoning, in our view,
the trial court and the High Court could not have held
the appellants guilty just because the appellants have
not been able to explain under what circumstances
the deceased died.”
[Emphasis supplied]

[26] In Paramjeet Singh @ Pamma vs. State of
Uttarakhand, in 2011 CRI.L.J. 663, it has been held by the
apex court as under:
“13. Thus, the law on the point may be summarised
to the effect that in a criminal trial involving a serious
offence of a brutal nature, the court should be wary  CRL.A (J) No.28 of 2014 Page 62 of 105
[62]
of the fact that it is human instinct to react adversely
to the commission of the offence and make an effort
to see that such an instinctive reaction does not
prejudice the accused in any way. In a case where
the offence alleged to have been committed is a
serious one, the prosecution must provide greater
assurance to the court that its case has been proved
beyond reasonable doubt.
Circumstantial Evidence:
14. Though a conviction may be based solely on
circumstantial evidence, this is something that the
court must bear in mind while deciding a case
involving the commission of a serious offence in a
gruesome manner. In Sharad Birdhichand Sarda v.
State of Maharashtra : AIR 1984 SC 1622, this Court
observed that it is well settled that the prosecution's
case must stand or fall on its own legs and cannot
derive any strength from the weakness of the
defence put up by the accused. However, a false
defence may be called into aid only to lend assurance
to the court where various links in the chain of
circumstantial evidence are in themselves complete.
This Court also discussed the nature, character and
essential proof required in a criminal case which
rests on circumstantial evidence alone and held as
under:
(1) The circumstances from which the
conclusion of guilt is to be drawn should
be fully established;
(2) The facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is
guilty;
(3) The circumstances should be of a
conclusive nature and tendency;
(4) They should exclude every possible
hypothesis except the one to be proved;
and
(5) There must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must
show that in all human probability the act
must have been done by the accused.”
[Emphasis supplied]
[27] Mr. Biswas, learned senior counsel has submitted that
the trial court is under obligation not be swayed by the public
opinion or his passion. It is the fundamental duty of the court that
its inference must be based on the legal evidence. In this respect,  CRL.A (J) No.28 of 2014 Page 63 of 105
[63]
reliance has been placed on the apex court’s decision in State
through C. B. I. vs. Mahender Singh Dahiya, reported in 2011
AIR SCW 1916, where the apex court has observed as under:
“19.Undoubtedly, this case demonstrates the actions
of a depraved soul. The manner in which the crime
has been committed in this case, demonstrates the
depths to which the human spirit/soul can sink. But
no matter how diabolical the crime, the burden
remains on the prosecution to prove the guilt of the
accused. Given the tendency of human beings to
become emotional and subjective when faced with
crimes of depravity, the Courts have to be extra
cautious not to be swayed by strong sentiments of
repulsion and disgust. It is in such cases that the
Court has to be on its guard and to ensure that the
conclusion reached by it are not influenced by
emotion, but are based on the evidence produced in
the Court. Suspicion no matter how strong cannot,
and should not be permitted to, take the place of
proof. Therefore, in such cases, the Courts are to
ensure a cautious and balanced appraisal of the
intrinsic value of the evidence produced in Court.”
[Emphasis supplied]
[28] Mr. Biswas, learned senior counsel has submitted
further that the statement made by the accused during his
examination under Section 313 of the Cr.P.C., which is not
recorded under oath, cannot be treated as evidence under Section
3 of the Evidence Act. He has to that end, placed reliance on the
apex court decision in Raj Kumar Singh alias Raju alias Batya
vs. State of Rajasthan, reported in 2013 CRI.L.J. 3276, where
the apex court has held that:
“36. In view of the above, the law on the issue can be
summarised to the effect that statement under
Section 313 Cr.P.C is recorded to meet the
requirement of the principles of natural justice as it
requires that an accused may be given an opportunity
to furnish explanation of the incriminating material
which had come against him in the trial. However, his
statement cannot be made a basis for his conviction.
His answers to the questions put to him under  CRL.A (J) No.28 of 2014 Page 64 of 105
[64]
Section 313 Cr.P.C cannot be used to fill up the gaps
left by the prosecution witnesses in their depositions.
Thus, the statement of the accused is not a
substantive piece of evidence and therefore, it can be
used only for appreciating the evidence led by the
prosecution, though it cannot be a substitute for the
evidence of the prosecution. In case the
prosecution's evidence is not found sufficient to
sustain conviction of the accused, the inculpatory
part of his statement cannot be made the sole basis
of his conviction. The statement under
Section 313 Cr.P.C is not recorded after administering
oath to the accused. Therefore, it cannot be treated
as an evidence within the meaning of Section 3 of the
Evidence Act, though the accused has a right if he
chooses to be a witness, and once he makes that
option, he can be administered oath and examined as
a witness in defence as required under
Section 315 Cr.P.C.
An adverse inference can be taken against the
accused only and only if the incriminating material
stood fully established and the accused is not able to
furnish any explanation for the same. However, the
accused has a right to remain silent as he cannot be
forced to become witness against himself.”
[Emphasis supplied]
[29] Similarly, in Nagraj vs. State, represented by
Inspector of Police, Salem Town, Tamil Nadu, reported in
2015 CRI.L.J. 2377, it has been observed by the apex court as
under:
“15. In the context of this aspect of the law it has
been held by this Court in Parsuram Pandey v. State
of Bihar : (2004) 13 SCC 189 that Section 313, Cr.P.C
is imperative to enable an accused to explain away
any incriminating circumstances proved by the
prosecution. It is intended to benefit the accused, its
corollary being to benefit the Court in reaching its
final conclusion; its intention is not to nail the
accused, but to comply with the most salutary and
fundamental principle of natural justice i.e. audi
alteram partem, as explained in Arsaf Ali v. State of
Assam : (2008) 16 SCC 328. In Sher Singh v. State of
Haryana : (2015) 1 SCR 29 this Court has recently
clarified that because of the language employed in
Section 304B of the IPC, which deals with dowry
death, the burden of proving innocence shifts to the
accused which is in stark contrast and dissonance to
a person's right not to incriminate himself. It is only
in the backdrop of Section 304B that an accused must
furnish credible evidence which is indicative of his
innocence, either Under Section 313, Cr.P.C or by
examining himself in the witness box or through
defence witnesses, as he may be best advised.
Having made this clarification, refusal to answer any
question put to the accused by the Court in relation CRL.A (J) No.28 of 2014 Page 65 of 105
[65]
to any evidence that may have been presented
against him by the prosecution or the accused giving
an evasive or unsatisfactory answer, would not
justify the Court to return a finding of guilt on this
score. Even if it is assumed that his statements do
not inspire acceptance, it must not be lost sight of
that the burden is cast on the prosecution to prove its
case beyond reasonable doubt. Once this burden is
met, the Statements under Section 313 assume
significance to the extent that the accused may cast
some incredulity on the prosecution version. It is not
the other way around; in our legal system the
accused is not required to establish his innocence.
We say this because we are unable to subscribe to
the conclusion of the High Court that the substance of
his examination Under Section 313 was indicative of
his guilt. If no explanation is forthcoming, or is
unsatisfactory in quality, the effect will be that the
conclusion that may reasonably be arrived at would
not be dislodged, and would, therefore, subject to the
quality of the defence evidence, seal his guilt.
Article 20(3) of the Constitution declares that no
person accused of any offence shall be compelled to
be a witness against himself. In the case in hand, the
High Court was not correct in drawing an adverse
inference against the Accused because of what he
has stated or what he has failed to state in his
examination under Section 313, Cr.P.C.”
[Emphasis supplied]
[30] Mr. Biswas, learned senior counsel has further
submitted that for silence of the accused no adverse inference can
be drawn against him in view of the decision of the apex court in
State of M.P. vs. Ramesh & Anr., reported in 2011 AIR SCW
1956 to highlight the observation of the apex court which reads
as under:
“27. The cumulative effect of reading the provisions
of Article 20(3) of the Constitution with Sections 161
(2); 313(3); and proviso (b) to Section 315 Code of
Criminal Procedure remains that in India, law
provides for the rule against adverse inference from
silence of the accused.
Statement of the accused made under
Section 313, Cr.P.C can be taken into consideration to
appreciate the truthfulness or otherwise of the
prosecution case. However, as such a statement is
not recorded after administration of oath and the
accused cannot be cross- examined, his statement so
recorded under Section 313, Cr.P.C cannot be treated
to be evidence within the meaning of Section 3 of the
Evidence Act, 1872.  CRL.A (J) No.28 of 2014 Page 66 of 105
[66]
Section 315, Cr.P.C enables an accused to give
evidence on his own behalf to disprove the charges
made against him. However, for such a course, the
accused has to offer in writing to give his evidence in
defence. Thus, the accused becomes ready to enter
into the witness box, to take oath and to be crossexamined
on behalf of the prosecution and/or of the
accomplice, if it is so required. (Vide: Tukaram G.
Gaokar v. R.N. Shukla and Ors. : AIR 1968 SC 1050;
and Dehal Singh v. State of Himachal Pradesh :
(2010) 9 SCC 85.
In such a fact-situation, the accused being a
competent witness, can depose in his defence and his
evidence can be considered and relied upon while
deciding the case.”
[31] The prosecution has to prove their case irrespective of
the case which the defence propounds in the trial. In Daulat Ram
vs. State of Punjab, reported in (1997) 10 SCC 236, the apex
court has reiterated this principle which can be had from the
following passage:
“8. The learned Sessions Judge devoted more than
half of his judgment in critically examining the
defence version as if it required the standard of proof
as that of a prosecution case. The High Court
however avoided pursuing that course and confined
itself to the prosecution case. If holes can be picked
in the defence that doesn't lead to the prosecution
story being automatically proved. The prosecution
has to stand on its own legs and can derive no
advantage from the weakness of the defence.
Keeping that in view, we proceed further.”
[Emphasis supplied]
[32] Mr. Biswas, learned senior counsel has submitted that
despite having the opportunity and despite meeting the police
officials on several times, PWs-8 and 9 at their first encounter did
not disclose the purported ‘materials’ to the investigating officer
or anyone else. For such delayed disclosure those witnesses did
provide any explanation why they failed to disclose such material
facts to the police at the earliest opportunity. The delayed
disclosure carries element of suspicion as held by the apex court  CRL.A (J) No.28 of 2014 Page 67 of 105
[67]
in State of Orissa v. Brahmananda Nanda, reported in AIR
1976 SC 2488, where it has been held that:
“2……... We have carefully gone through the evidence
of this witness, but we do not think we can place any
reliance on it for the purpose of founding the
conviction of the respondent. The evidence suffers
from serious infirmities which have been discussed in
detail by the High Court. It is not necessary to
reiterate them, but it will be sufficient if we refer only
to one infirmity which, in our opinion, is of the most
serious character. Though according to this witness,
she saw the murderous assault on Hrudananda by the
respondent and she also saw the respondent coming
out of the adjoining house of Nityananda where the
rest of the murders were committed, she did not
mention the name of the respondent as the assailant
for a day and a half. The murders were committed in
the night of 13th June, 1969, and yet she did not come
out with the name of the respondent until the
morning of 15th June, 1969. It is not possible to
accept the explanation sought to be given on behalf
of the prosecution that she did not disclose the name
of the respondent as the assailant earlier than 15th

June, 1969, on account of fear of the respondent.
There could be no question of any fear from the
respondent because in the first place, the respondent
was not known to be a gangster or a confirmed
criminal about whom people would be afraid,
secondly, the police had already arrived at the scene
and they were stationed in the Club House which was
just opposite to the house of the witness and thirdly,
A. S. I. Madan Das was her nephew and he had come
to the village in connection with the case and had
also visited her house on 14th June, 1969. It is indeed
difficult to believe that this witness should not have
disclosed the name of the respondent to the police or
even to A. S. I. Madan Das and should have waited till
the morning of 15th June, 1969, for giving out the
name of the respondent. This is a very serious
infirmity which destroys the credibility of the
evidence of this witness. The High Court has also
given various other reasons for rejecting her
testimony and most of these reasons are, in our
opinion, valid and cogent. If the evidence of this
witness is rejected as untrustworthy, nothing
survives of the prosecution case.”
 [Emphasis supplied]
[33] Similar observation of the apex court is available in
State of Karnataka vs. Venkatesh and others, reported in
1992 Supp.(1) SCC 539. It has been observed there that in
absence of long silence by any witness and when no explanation,  CRL.A (J) No.28 of 2014 Page 68 of 105
[68]
much less a satisfactory one, is provided it would not be safe to
place any reliance on the testimony of that witness.

[34] In Vijaybhai Bhanabhai Patel vs. Navnitbhai
Nathubhai Patel and Ors,, reported in (2004) 10 SCC 583, the
law has been restated by the apex court in the following passage:
“4. The learned Counsel for the respondents
submitted that PW 7 and PW 4 who claimed to be
eyewitnesses cannot be believed for various reasons.
It was submitted that the incident happened on
13.11.1985 but these two witnesses were questioned
by the Investigation Officer only on 15.11.1985. No
proper explanation was given by the Investigation
Officer. There is evidence to show that the
Investigation Officer had visited the house of the
deceased on the very next day. It seems that there
was an attempt by the prosecution to show that PW 7
the widow of the deceased was unconscious during
this period and therefore, she could not be
questioned by the Police. But they could have
questioned PW 4, the son of the deceased at least on
the very next day. The delay in questioning these
witnesses by the Investigation Officer is a serious
mistake on the part of the prosecution. We do not
think that the High Court erred in disbelieving these
witnesses.”
[Emphasis supplied]
[35] That apart, Mr. Biswas, learned senior counsel has
contended that from the testimony of PW-5, Purnima Banik it is
apparent that Balaram Ghosh was a lean and thin person. Even
PW-37, the postmortem doctor has also confirmed that feature of
Balaram Ghosh. Thus, it is highly improbable that Balaram would
be able to overpower Ranjit Choudhury. While closing his
submissions, Mr. Biswas, learned senior counsel has submitted
that the defects in the investigation would affect the prosecution
case as held by the apex court in Surajit Sarkar vs. West
Bengal, reported in 2013 CRI.L.J. 1137 in the following words:  CRL.A (J) No.28 of 2014 Page 69 of 105
[69]
“54. We are not prepared to accept as a broad
proposition of law that in no case can defective or
shoddy investigations lead to an acquittal. It would
eventually depend on the defects pointed out. If the
investigation results in the real culprit of an offence
not being identified, then acquittal of the accused
must follow. It would not be permissible to ignore the
defects in an investigation and hold an innocent
person guilty of an offence which he has not
committed. The investigation must be precise and
focused and must lead to the inevitable conclusion
that the accused has committed the crime. If the
investigating officer leaves glaring loopholes in the
investigation, the defence would be fully entitled to
exploit the lacunae. In such a situation, it would not
be correct for the prosecution to argue that the Court
should gloss over the gaps and find the accused
person guilty. If this were permitted in law, the
prosecution could have an innocent person put
behind bars on trumped up charges. Clearly, this is
impermissible and this is not what this Court has
said.”
[Emphasis supplied]
[36] Mr. Biswas, learned senior counsel adding to that
contention has also emphatically asserted that the prosecution
case is blurred and it gives rise to two different versions, one
being Balaram killed Ranjit Choudhury and thereafter, from the
scuffling with knife he and Sujit fell victim of the injuries and the
other being that the two unidentified assailants from outside have
committed the murders and as such, the benefit must go to the
appellant. In Harchand Singh and Anr. vs. State of Haryana,
reported in AIR 1974 SC 344, the apex court has enunciated the
law in no uncertain terms as under:
“9. It cannot be disputed that a murderous assault
was made on Ajaib Singh on the day of occurrence as
a result of which he died. The evidence of Dr.
Shamsher Singh, who examined Ajaib Singh when he
was taken to Khanna hospital as well as the evidence
of Dr. Gurcharan Singh Randhawa who performed
post mortem examination on the dead body, shows
that as many as eighteen injuries were inflicted upon
Ajaib Singh deceased. Out of them, seven had been
caused by sharp-edged weapons. Death, in the
opinion of Dr. Randhawa, was due to shock and
haemorrhage as a result of the cumulative effect of
the injuries. According to the case of the prosecution,  CRL.A (J) No.28 of 2014 Page 70 of 105
[70]
the two appellants joined in the assault on the
deceased as a result of which the latter died. The
prosecution in support of its case examined two sets
of eye witnesses. The evidence of one set consists of
the testimony of Amarjit Singh, Mal Singh and Teja
Singh. So far as these witnesses are concerned, the
trial court came to the conclusion that they were not
present near the scene of occurrence and had not
witnessed the occurrence. The trial court in support
of this conclusion gave reasons which appear to be
cogent and weighty and we find no particular ground
to take a different view. The evidence of Ram Asra,
who according to the prosecution case was with Ajaib
Singh deceased at the time of the occurrence, shows
that Amarjit Singh, Mal Singh and Teja Singh were
not present at the time of occurrence. If Amarjit
Singh, Mal Singh and Teja Singh had been present at
or about the place of occurrence and had actually
seen the occurrence, it is difficult to believe that Ram
Asra would have remained unaware of their
presence. According to Amarjit Singh, Mal Singh and
Teja Singh, they saw the occurrence while they were
coming from their house. They were at a distance of
about 60 karams from the place of occurrence when
they heard alarm being raised and on coming nearer
they saw the six accused inflicting injuries upon Ajaib
Singh deceased. As against, that, the version of Ajaib
Singh deceased in the dying declaration was that the
above mentioned three witnesses were working in
the field nearby when he was assaulted by the
accused. Amarjit Singh, Mal Singh and Teja Singh
claimed that they were proceeding from their house
to the well with Tokras and Kahis for the purpose of
consolidating the new channel with earth filling. If
that was the purpose for which they were going to
the well, they would have gone there before and in
any case not after Ajaib Singh deceased so that they
might prepare the channel before Ajaib Singh started
operation of the Persian wheel at the well. We thus
find that not only the explanation given by Amarjit
Singh, Mal Singh and Teja Singh regarding their
arrival at that time is not convincing, there is
material discrepancy in the version of Ajaib Singh
deceased in his dying declaration and the testimony
of Amarjit Singh, Mal Singh and Teja Singh PWs
regarding the presence of these witnesses at or
about the place of occurrence. On the top of all this
we find that the evidence of Ram Asra, upon which
reliance has been placed by the prosecution shows
that Amarjit Singh, Mal Singh and Teja Singh were
not there and had not witnessed the occurrence.
10. The other eye witness, upon whose testimony
reliance has been placed by the prosecution is Ram
Asra (PW 14). So far as this witness is concerned, we
find that his presence at the scene of occurrence was
not mentioned by Ajaib Singh deceased in the dying
declaration which was recorded by ASI Harbhajan
Singh at Khanna hospital. According to Ram Asra, he
was working with the deceased at the well when the
three accused came there and assaulted the
deceased. If Ram Asra was, in fact, present and
working with Ajaib Singh deceased at the time of the
occurrence, it is not clear as to why the deceased
should fail to mention that fact in the dying
declaration the evidence of Amarjit Singh, Mal Singh  CRL.A (J) No.28 of 2014 Page 71 of 105
[71]
and Teja Singh upon which also the prosecution
placed reliance goes to show that Ram Asra had not
witnessed the occurrence. The name of Ram Asra was
in the very nature of things not mentioned in the first
information report, because the said report was
based upon the dying declaration of Ajaib Singh. It
would thus appear that the eye witness upon whose
testimony the prosecution wants to sustain the
conviction of the appellants is shown to be an
unreliable witness by the other evidence produced by
the prosecution. The present is a case wherein one
set of prosecution evidence condemns the other set
of evidence produced by the prosecution. In the
above state of affairs, we find it difficult to secure a
firm ground upon which to base the conviction of the
accused appellants.”
[Emphasis supplied]
[37] From the other side, Mr. Z. Kamar, learned Special
P.P. appearing for the sole respondent, the State of Tripura in the
outset has submitted that the case in hand is very exceptional
one. There are both direct and circumstantial evidence which are
established by the scientific and medical evidence to show the
complicity and involvement of the appellant. The murders were
well planned and designed meticulously. Their execution was
accurately devised and three persons have lost their lives for the
homicidal murder. The trial court after examining all the evidences
on record oral and documentary, intricately and properly has
rightly convicted the appellant.
[38] Mr. Kamar, learned Special P.P. has continued to
submit that the place of occurrence is the office-cum-residential
place of the appellant and that occurrence took place on
19.05.2013. The day was a Sunday and the time of the
occurrence is somewhere after when both the coil mechanics i.e.
PWs-15 and 16 left the place of occurrence at about 1.15 pm after  CRL.A (J) No.28 of 2014 Page 72 of 105
[72]
taking their labour charges and before arrival of PW-5, Purnima
Banik at about 3 pm in the complex of Ganadoot Patrika office
after having her lunch in the house of her colleague Smt.
Jayashree Ghosh (DW-3). As the day was a Sunday most of the
employees were on weekly holiday, as stated by DW-3. All the
deceased persons viz. Ranjit Choudhury, Manager of Ganadoot
Patrika, Sujit Bhattacharjee, the proof reader, Balaram Ghosh, the
driver, the appellant, Sushil Choudhury, PW-40, Smt. Niyati Deb
(Ghosh), the approver of the case, PW-1 Miss. Papiya Ghosh,
daughter of PW-40, Sri Prantosh Acharjee (DW-2) and Maya
Choudhury, the wife of the appellant were present in the place of
occurrence. The appellant was very much present at his complex
and was working in his office chamber. It is on record, through
the deposition of Purnima Banik (PW-5) that on the day of
incident, the appellant left his chamber in between 2 pm to 2.15
pm though usually the appellant leaves his chamber at about 3
pm to 3.30 pm from his room. Neither any evidence is led by the
defence to show that there was any intrusion or forceful entry by
any outsider and the same has been corroborated by the experts
who came to the place of occurrence immediately after the
occurrence. Thus, it is amply established that the homicidal killing
was the handiwork of the insiders who were present at the time of
occurrence at the office complex of Ganadoot Patrika. The said
fact is also corroborated by the DNA genetic profiling found in
Exbt.M.O.2, the dagger/knife which contained male human blood  CRL.A (J) No.28 of 2014 Page 73 of 105
[73]
of all three deceased persons and also the Exbt. M.O.1, the hawai
chappal belonging to the deceased Balaram Ghosh which was in
his wearing at the time of occurrence and has been identified by
PW-1, Papiya Ghosh that the chappal belonged to her father. Mr.
Kamar, learned Special P.P. has further submitted that the DNA
profile is a record created on the basis of DNA samples made
available to the forensic expert. The matching of the DNA samples
has emerged as a vital tool for linking suspects to specific criminal
acts. Till the arrest of the approver (PW-40) and the appellant the
police was being misled and misdirected to investigate the case in
a different angle by the appellant. Even one innocent person Sri
Satyajit Das (PW-6) who was an employee of Ajker Fariad was
implicated but on investigation, it was found that at the relevant
point of time and the place of occurrence, PW-6 was very much
present and was working at his office. That fact has been amply
proved and corroborated by PWs-6,26,27 and 41. According to Mr.
Kamar, learned Special P.P. PWs-1 and 40 are the most natural
witnesses of the case and they were present at the place of
occurrence and also at the time of occurrence. The said two
witnesses were all along staying at the mercy of the appellant at
his complex. There is no evidence on record to show that PWs-1
and 40 are the planted witnesses or that they had any enmity
with the appellant or they bore any grudge against the appellant
to falsely implicate the appellant in the case. There is also no
evidence or allegation on record to show that PW-1, the child  CRL.A (J) No.28 of 2014 Page 74 of 105
[74]
witness or PW-40, the approver has been tutored and influenced
by the outsider to depose falsely in the case to implicate the
appellant. On the contrary, there are clinching evidence on record
to establish that the fact that the appellant tutored and influenced
both the witnesses for making false statements and he was
exerting all forms of pressure and threats till his arrest.
 PW-40 was arrested by the police on 31.05.2013 and
on 25.06.2013 she voluntarily filed an application before the
C.J.M., West Tripura, Agartala through the Superintendent,
Central Jail, Agartala expressing her willingness to make full and
true disclosure of the whole of the circumstances of the case and
accordingly, the C.J.M, West Tripura on 26.06.2013 after
examining PW-40 orally and being satisfied with her statement,
called for a report from the I.O of the case by his order dated
26.06.2013. I.O. submitted the report on 27.06.2013 and on the
same date, the approver’s statement was recorded. After granting
pardon to the accused, who turned approver (PW-40) all the
procedures for recording such statement were followed. On
23.08.2013, the approver was cross-examined. The said approver
has made categorical statement on oath that she and her
daughter (PW-1) had made false statement to the police about
the incident that occurred in the Ganadoot Patrika complex on
19.05.2013 due to fear of the appellant. Initially the appellant
threatened PW-40 to kill her and her daughter. Out of fear, she
did not disclose the true incident to the police rather she  CRL.A (J) No.28 of 2014 Page 75 of 105
[75]
misdirected the police in all possible manners. In this regard, it
has been submitted that it is on record that PW-40, the approver
could muster the courage to speak the truth only after the arrest
of the accused. Thereafter, she volunteered to make a true
statement before the court and for that she on her free will and
volition filed the application dated 25.06.2013. Mr. Kamar,
learned Special P.P. has submitted that there is clinching evidence
on record to prove that the appellant had fabricated evidence
through PWs-1 and 40 to clear and absolve himself from the
offence. In response to the argument advanced from the defence
that since PW-40 has not inculpated herself in the commission of
the offence and as she has not participated in the offence in any
manner and, she cannot be termed as an approver and her
statement (Exbt.20) given before the C.J.M has got no evidentiary
value and that cannot be used in respect of the offence under
Section 302 read with Section 120-B of the I.P.C. Mr. Kamar,
learned Special P.P. has submitted that this is wholly a misreading
of the fact on the records as well as the misconstruction of the
provisions of Section 306 of the Cr.P.C. A decision of the apex
court in State of Rajasthan vs. Balveer alias Balli and
another, reported in 2014 CRI.L.J. 314 has been referred to
illustrate the requisite for tendering pardon to an accused and
how and to what extent the approver’s testimony can be used. It
has been held in State of Rajasthan vs. Balveer alias Balli
and another that:  CRL.A (J) No.28 of 2014 Page 76 of 105
[76]
“15. The first question that we have to decide is
whether the High Court is right in coming to the
conclusion that for being an approver within the
meaning of Section 306, Cr.P.C., a person has to
inculpate himself in the offence and has to be privy to
the crime, otherwise he removes himself from the
category of an accomplice and places himself as an
eye-witness. Section 306, Cr.P.C. provides that with a
view to obtaining the evidence of any person
supposed to have been directly or indirectly
concerned in or privy to an offence, the Magistrate
may tender pardon to such person on condition of his
making a full and true disclosure of the whole
circumstances within his knowledge relative to the
offence and to every other person concerned,
whether as principal or abettor, in the commission
thereof. This Court in the case of Suresh Chandra
Bahri vs. State of Bihar [1995 Supp. (1) SCC 80]
explained the object of Section 306, Cr.P.C. in the
following words:

 ‘The object of Section 306 therefore is
to allow pardon in cases where heinous
offence is alleged to have been committed
by several persons so that with the aid of
the evidence of the person granted
pardon the offence may be brought home
to the rest. The basis of the tender of
pardon is not the extent of the culpability
of the person to whom pardon is granted,
but the principle is to prevent the escape
of the offenders from punishment in
heinous offences for lack of evidence.
There can therefore be no objection
against the tender of pardon to an
accomplice simply because in his
confession, he does not implicate himself
to the same extent as the other accused
because all that Section 306 requires is
that pardon may be tendered to any
person believed to be involved directly or
indirectly in or privy to an offence.’
Thus, the High Court failed to appreciate that the
extent of culpability of the accomplice in an offence is
not material so long as the Magistrate tendering
pardon believes that he accomplice was involved
directly or indirectly in or was privy to the offence.
The High Court also failed to appreciate that Section
133 of the Indian Evidence Act provides that an
accomplice shall be a competent witness against an
accused person and when the pardon is tendered to
an accomplice under Section 306, Cr.P.C, the
accomplice is removed from the category of coaccused
and put into the category of witness and the
evidence of such a witness as an accomplice can be
the basis of conviction as provided in Section 133 of
the India Evidence Act.
16. As a rule of prudence, however, as provided in
Illustration (b) to Section 114 of the Indian Evidence
Act, the Court will presume that an accomplice is
unworthy of credit, unless he is corroborated in
material particulars. In Rameshwar, s/o Kalyan Singh
vs. The State of Rajasthan (AIR 1959 SC 54) (supra),
this Court laid down the kind of evidence which  CRL.A (J) No.28 of 2014 Page 77 of 105
[77]
should, or would, be regarded as corroboration of the
testimony of an accomplice and held that it is not
necessary that there should be independent
confirmation of every material circumstance but
independent evidence must not only make it safe to
believe that the crime was committed and must in
some way reasonably connect the accused with the
crime. In the language of this Court in the aforesaid
case:
‘All that is necessary is that there should
be independent evidence which will make
it reasonably safe to believe the witness’
story that the accused was the one, or
among those, who committed the
offence.’
In this case, the Court also clarified that
corroboration need not be by direct evidence that the
accused committed the crime and it is sufficient if it
is merely circumstantial evidence of the connection of
the accused with the crime…….”
 The apex court has laid the law unambiguously that
the extent of culpability of accomplice in an offence is not material
for grant of pardon so long as Magistrate tendering pardon
believes that the accomplice was involved directly or indirectly in
or was privy to the offence. When pardon is tendered to an
accomplice under Section 306 Cr.P.C. an accomplice is removed
from the category of co-accused but put into the category of
witness and evidence of such a witness as accomplice can be the
basis of conviction as provided in under Section 133 of the
Evidence Act. It has been further held that as a rule of prudence
as provided in Illustration(b) to Section 114 of the Evidence Act,
the court will presume that accomplice is unworthy of credit,
unless his testimony as corroborated in material particulars. Mr.
Kamar, learned Special P.P. made particular reference to the
following passages of State of Rajasthan vs. Balveer alias
Balli and another, reported in (2013) 16 SCC 321:  CRL.A (J) No.28 of 2014 Page 78 of 105
[78]
“22.The first question that we have to decide is
whether the High Court is right in coming to the
conclusion that for being an approver within the
meaning of Section 306 Cr.P.C. a person has to
inculpate himself in the offence and has to be privy to
the crime, otherwise he removes himself from the
category of an accomplice and places himself as an
eye witness. Section 306 Cr.P.C. provides that with a
view to obtaining the evidence of any person
supposed to have been directly or indirectly
concerned or privy to an offence, the Magistrate may
tender a pardon to such person on condition of his
making a full and true disclosure of the whole
circumstances within his knowledge relative to the
offence and that to every other person concerned,
whether as principal or abettor in the commission
thereof.”
* * * * *
24. Thus, the High Court failed to appreciate that the
extent of culpability of the accomplice in an offence is
not material so long as the magistrate tendering
pardon believes that the accomplice was involved
directly or indirectly in or was privy to the offence.
The High Court also failed to appreciate that
Section 133 of the Evidence Act provides that an
accomplice shall be a competent witness against an
accused person and when the pardon is tendered to
an accomplice under Section 306, Cr.P.C, the
accomplice is removed from the category of coaccused
and put into the category of witness and the
evidence of such a witness as an accomplice can be
the basis of conviction as provided in Section 133 of
the Evidence Act.
* * * * *
27. In this case, the Court also clarified that
corroboration need not be by direct evidence that the
accused committed the crime and it is sufficient if it
is merely circumstantial evidence of the connection of
the accused with the crime. In the aforesaid case,
this Court also explained that unless the testimony of
an accomplice is treated as evidence, many crimes
which are usually committed between accomplices in
secret, particularly offences with females, could
otherwise never be brought to justice. With these
principles with regard to the testimony of an
accomplice in mind, we may now examine the
testimony of PW-1 and the corroboration of such
testimony by material particulars, if any, so as to
connect Ram Niwas and Balveer in the offences.
* * * * *
32. Mr. Upadhyay, learned Counsel appearing for the
Respondent 2, Ram Niwas, was right that there were
some inconsistencies between the evidence of PW-1
and PW5, between the evidence of PW-1 and PW-6
and between the evidence of PW-1 and PW-32 as well
as contradictions in the statement of PW-1 recorded
before the trial by the Magistrate and the evidence of
PW-1 before the Court but these inconsistencies and
contradictions were not material enough to doubt the
story given out by PW-1 that Ram Niwas  CRL.A (J) No.28 of 2014 Page 79 of 105
[79]
and Balveer committed rape on the deceased and
then killed her. Mr. Upadhyay is also right in his
submission that there was intimate relationship
between Ram Niwas and the deceased but if evidence
of PW-1 corroborated in material particulars
established that Ram Niwas did commit rape and
murder of the deceased, we cannot discard the
evidence only on the ground that there was no
necessity for Ram Niwas to commit rape and murder
of the deceased.”

[39] The trial court while relying the testimony of the
approver (PW-40) has held that the basis of tendering pardon is
not confined to the culpability of the person to whom the pardon
is granted but the object to prevent the escape of the offenders
from punishment. On such basis, the process was ratified by the
impugned judgment. According to Mr. Kamar, learned Special P.P.
that the approver had the knowledge that her husband was
involved in the commission of murder of Ranjit Choudhury and the
same was disclosed to her by him. That aspect has been
concealed by the approver misleading the investigation. The
approver’s statement or her testimony has been adequately
corroborated by PW-1. As such, Mr. Kamar, learned Special P.P.
has submitted that analysis made by the trial court is incomplete
harmony and conformity with the decision of State of Rajasthan
vs. Balveer alias Balli and another. Thereafter, Mr. Kamar,
learned Special P.P. has submitted that the conduct of the
appellant after murder is quite astonishing and mischievous. The
appellant was all along present at the spot on the date and time
of the occurrence but he did not categorically inform the police
about it. Even he did not lodge the FIR. Surprisingly, the appellant  CRL.A (J) No.28 of 2014 Page 80 of 105
[80]
informed PW-39 over his mobile at about 3.25 pm by giving very
cryptic information and that did not disclose anything of any
cognizable offence. It was his legal duty to do so and Section 39
of the Cr.P.C. mandates that every person aware of the
commission of any offence is to give information of it. Section
39(v) Cr.P.C. includes Sections 302, 303 and 304 I.P.C. The
purpose of the said section is very obvious that the justice
machinery starts functioning without delay. Having referred to the
depositions of DW-2, Prantosh Acharjee and DW-1, Kamal
Chakraborty when the appellant was asked to respond during his
examination under Section 313 of the Cr.P.C., from the reply
against question Nos.40,199,203 and 221 it would be clearly
established that the appellant after consuming half an hour time
informed the police, PW-39. Mr. Kamar, learned Special P.P. has
elaborated a little bit on that aspect of the matter. The appellant
had stated that he informed the police at about 2.58 pm but
actually he informed the police at 3.25 pm. The exact time is
established from the deposition of DW-1, Sri Kamal Chakraborty,
the Divisional Engineer of BSNL when that witness has made a
categorical statement on oath that from the Mobile
No.9436120346 (of the appellant) to the Mobile No.9436130255
(of PW-39), the first call was made at 3.25 pm It is the duty of
the accused while making statement under Section 313 of the
Cr.P.C. to explain the incriminating circumstances against him. If
the explanation for such circumstances is not made or silence is  CRL.A (J) No.28 of 2014 Page 81 of 105
[81]
maintained it may be treated as additional link in the chain of
circumstances to sustain the charges against the accused. In this
regard, reliance has been placed on Neel Kumar alias Anil
Kumar vs. State of Harayana, reported in (2012) 5 SCC 766
where it has been held that:
“30. It is the duty of the accused to explain the
incriminating circumstance proved against him while
making a statement under Section 313 , Cr.P.C.
Keeping silent and not furnishing any explanation for
such circumstance is an additional link in the chain of
circumstances to sustain the charges against him.
Recovery of incriminating material at his disclosure
statement duly proved is a very positive circumstance
against him. (See also: Aftab Ahmad Anasari v. State
of Uttaranchal : AIR 2010 SC 773).”
[Emphasis supplied]
[40] Mr. Kamar, learned Special P.P. has further submitted
that all the incriminating circumstances appearing against the
appellant pointing to the guilt were put to him during his
examination under Section 313 of the Cr.P.C. but he could not
give any satisfactory explanation, except denial. The
circumstances which were not responded by way of explanation
may provide the missing link for completing the chain of
circumstances. Reliance has been placed on an apex court
decision in Jagroop Singh vs. State of Punjab, reported in
(2012) 11 SCC 768 which has observed thus:
“36. Another aspect is to be taken note of. Though
the incriminating circumstances which point to the
guilt of the accused had been put to the accused, yet
he could not give any explanation Under
Section 313 of the Code of Criminal Procedure except
choosing the mode of denial. In State of Maharashtra
v. Suresh : (2000) 1 SCC 471, it has been held that
when the attention of the accused is drawn to such
circumstances that inculpated him in the crime and
he fails to offer appropriate explanation or gives a
false answer, the same can be counted as providing a
missing link for completing the chain of  
[82]
circumstances. We may hasten to add that we have
referred to the said decision only to highlight that the
accused has not given any explanation whatsoever as
regards the circumstances put to him Under
Section 313 of the Code of Criminal Procedure.”
[41] PW-41, the investigating officer of the case has
categorically stated in the trial that:
“In course of my investigation I tried my level best to
examine the accused Sushil Choudhury. But he was
not willing to give statement about the incident
which took place in his complex.”
 On the other hand, the appellant held a press
conference for declaring some ex-gratia payment to the bereaved
family and reward for the person who would trace out the
assailants. The purpose was to dispel the cloud of suspicion
around him. Such post conduct of the appellant is relevant and
admissible under Section 8 of the Evidence Act. The appellant also
insisted PW-40 to tell the name of Satyajit Das (PW-6) but PW-40
did not tell that name as he was not present at the place of
occurrence. Being infuriated the appellant shouted at her as she
did not tell the police according his instruction. He also threatened
of dire consequences. PW-1, Smt. Papiya Ghosh has stated in the
trial that:
‘On 20.05.2013 I made statement to the police that
accused Sushil Choudhury told me to tell the name of
Satyajit who was the friend of deceased Sujit uncle
and accordingly I told the police that the persons
who appeared at the spot at the relevant time of the
incident as assailant wearing green coloured ganjee
and blue trouser was like that of Satyajit Das. I was
dictated by the accused Sushil Choudhury to say the
said version on the following day of incident i.e.
20.05.2013.”
 This fact has been corroborated by PW-41, the
investigating officer of the case. Thus, it is clearly established that  CRL.A (J) No.28 of 2014 Page 83 of 105
[83]
the appellant was exerting pressure upon PWs-1 and 40 to
implicate an innocent person (PW-6) in the case as a cover up.
[42] While dealing with the objection as to the
improvement Mr. Kamar, learned Special P.P. has contended that
right from lodging of the FIR to giving the statement under
Section 161 of the Cr.P.C. PWs-1 and 40 were under threat and
pressure and under the clutches of the appellant and as such, the
contradiction that is sought to be brought by the defence under
Section 145 of the Evidence Act cannot be allowed on the face of
the statement made by those witnesses that whatever they have
stated to the police during the investigation of the case were all
false. PW-1 has categorically deposed in the trial that:
‘Ultimately, we did not disclose to the police as our
life’s were not saved (sic. safe) due to the action of
the accused Sushil Choudhury. I made two times
statements to the police and out of fear as shown by
the accused Sushil Choudhury, myself could not
disclose the real fact to the police.’
 Similarly PW-40 has deposed in the trial that:
‘since I made false statement to the police in
connection with the incident occurred in the
Ganadoot Patrika office Bhawan on 19.05.2013 I
have been accused in this case. Out of fear of accused
Sushil Choudhury myself and my daughter made false
statements to the police about the case. Initially, the
accused Sushil Choudhury threatened me to commit
murder of myself and my daughter and as such, out
of fear I did not disclose the true incident.”
 PW-40 has stated truthfully that after the arrest of the
appellant, she made the true disclosure of the incident on
27.06.2013.
  CRL.A (J) No.28 of 2014 Page 84 of 105
[84]
[43] Mr. Kamar, learned Special P.P. has further submitted
that if the answers furnished by the appellant to question
Nos.191, 203 and 222 are reconciled and read as a whole, it
would clearly transpire that the appellant has not only given false
answer but also contradicting himself inasmuch as in the answer
to the question No.191, the appellant has stated that he has
informed’ PW-39 at about 2.58 pm over phone that a ‘murder
incident has happened in his office and requested him to send
police to his office complex, but while giving answer to the
question No.203, the appellant has stated that on 19.05.2013
after informing the police (PW-39) over telephone at 2.55 pm he
came down from first floor residence to the ground floor and
asked PW-40 Niyati Ghosh in presence of PWs-1 and 5 and his
wife Maya Choudhury as to how it happened. On the other hand,
the appellant while giving answer to the question No.221 he has
stated that the moment Prantosh (DW-2) called him and knocked
his room, at once he came down and made the first telephone call
to the police (PW-39) at 2.58 pm, if the sequences events
reconciled it would be crystal clear that it could not be possible on
the part of the accused appellant to know about the happening
that had taken place in the office complex situated in the ground
floor before coming down to the ground floor i.e. the place of
occurrence. Furthermore, the depositions of PWs-1,5,40 and DW-
2 on this point if is viewed and scanned it would clearly emerge  CRL.A (J) No.28 of 2014 Page 85 of 105
[85]
that the appellant is stating falsely right from the inception of the
case. PW-1 has categorically stated in the trial that:
‘my mother asked me to call the accused Sushil
Choudhury and his wife and when I proceeded to call
them through the staircase from the chamber of the
accused Sushil Choudhury of Ganadoot Patrika office
room from their room, I found that the wife of the
accused Sushil Choudhury was standing near the
staircase. I told the wife of accused Sushil Choudhury
that my father was murdered by somebody else and
after saying this I hurriedly rushed to my mother.
When I reached near my father, I found that Purnima
aunty (PW-5) was standing near my mother and also
found that the accused Sushil Choudhury came to the
courtyard through the press room and called me and
I met with accused Sushil Choudhury and at that time
accused Sushil Choudhury told me that the police
personnel would come very soon and you and your
mother should tell them that two persons came…..”.
 PW-5, Purnima Banik has deposed that:
 ‘…. I heard crying of Smt. Niyati Ghosh from office
complex of Ganadoot Patrkia after 3 pm. and just
reaching in the complex of Ganadoot Patrika office…..
and….. I came back to Smt. Niyati Ghosh again from
the upstairs and at that time Smt. Niyati Ghosh asked
me to call the accused Sushil Choudhury and his wife
and I reached to the room of the accused Sushil
Choudhury and his wife through the cabin of Patrika
Office and after arrival in their room I did not find
them. Thereafter, I hurriedly came back to the lawn
of the Patrika Office. I found the accused Sushil
Choudhury was talking with the daughter of Smt.
Niyati Ghosh and deceased Balaram Ghosh in the
lawn of Patrika office.”
 PW-40 was deposed that ‘at that time Smt. Maya
Choudhury asked Prantosh to call accused Sushil Choudhury.
Prantosh returned from the room of accused Sushil Choudhury but
at that time accused Sushil Choudhury did not come out and
appear before us. After some time accused Sushil Choudhury
called my daughter to go outside to the place near the garage
room. At that time, I followed that accused Sushil Choudhury was
talking over phone and after some time police came to the spot.’  CRL.A (J) No.28 of 2014 Page 86 of 105
[86]
 DW-2, Prantosh Acharjee as pointed out by Mr.
Kamar, Special P.P. has deposed in the trial that ‘ I was asked by
the wife of the accused Sushil Choudhury to call the accused
Sushil Choudhury, I went to the bedroom of the accused Sushil
Choudhury and found him sleeping. I loudly called him and he
woke up and came to the courtyard with his mobile phone
accompanying me.
[44] Mr. Kamar, learned Special P.P. then submitted that if
all these depositions are taken into account and read as a whole it
will be crystal clear that the appellant came to the ground floor to
the office complex for the first time after 3 pm when PW-40 was
wailing and PW-5 returned after having her lunch in her
colleague’s place clearly goes to establish that the appellant had
prior information about the murders that had taken place in his
Patrika office complex. Else how could he know about the
occurrence at 2.55 pm while he was staying in the upstairs. These
version of PWs-1,5 and 40 have been fortified the version of DW-2
when he deposed in his examination-in-chief that:
‘At that time I also found that hearing the outcry of
Papiya, wife of accused Sushil Choudhury was coming
down from her room and at that time I was asked by
the wife of the accused Sushil Choudhury to call the
accused Sushil Choudhury. I went to the bed room of
accused Sushil Choudhury and found him sleeping. I
loudly called him and he woke up and he came down
to the courtyard with his mobile phone accompanying
me.’
 Mr. Kamar, learned Special P.P. thereafter persuaded
this court to juxtaposed the said statement of DW-2 with the  CRL.A (J) No.28 of 2014 Page 87 of 105
[87]
answer given by the appellant to the question No.221. According
to him, if those statements and the answers are believed, there is
no scope on the part of the appellant to make any telephonic call
to PW-39 on 19.05.2013 at 2.55 pm or 2.58 pm.
 PW-21, Sri Arun Chandra Das, the duty officer of West
Agartala P.S. and PW-41, the investigating officer have
corroborated regarding the exact time of receiving the call. That
fact has been further corroborated by the documentary evidence,
Exbt. 24 introduced by DW-1, Sri Kamal Chakraborty, Divisional
Engineer, BSNL, Tripura
[45] Mr. Kamar, learned Special P.P. thereafter has
emphatically submitted that the circumstances which emerged as
relevant to connect the appellant with the complicity of the
offence and to prove the fact that it is only the appellant and none
else who is responsible and perpetrator of the crime are
encapsulated hereunder for purpose of appreciation:
(1) Mysterious murder of three (3) persons
took place in the premises of the Ganadoot
Patrika Complex wherein the
accused/appellant was all along present in
the complex at the time of the alleged
occurrence.
(2) The accused/appellant was last seen
present in the Ganadoot Patrika Complex
wherein all the 3 deceased persons were  CRL.A (J) No.28 of 2014 Page 88 of 105
[88]
also seen alive and were present in the said
complex, where the occurrence took place.
(3) Non-reporting of the incident to the
Police immediately after coming to know
about the occurrence that occurred on the
fateful day.
(4) Non-filing of any FIR of the case by the
accused/appellant, in spite of the fact that
such a havoc occurrence has taken place in
the complex of the accused/appellant.
(5) Unusual Pre-Conduct & Post Conduct
behaviour of the accused/appellant.
(6) Post-conduct attitude & behavior of the
accused/appellant.
(7) The accused/appellant on 18/05/13, just
one day prior to the occurrence of the case
threatened the deceased Ranjit Choudhury
with dire consequences.
(8) Disliking towards the deceased Ranjit
Chowdhury and motive to eliminate Ranjit
Chowdhury.
(9) The accused/appellant threatened PW-1
and PW-40 and compelled them to conceal
the actual happenings that took place on the
fateful day.  CRL.A (J) No.28 of 2014 Page 89 of 105
[89]
(10) The accused/appellant by exerting
threat and pressure to P.W.-1 and P.W.-40
misdirected the course of investigation as a
result of which, the IO was clueless at the
initial stage of the investigation of the case.
(11) The accused/appellant in order to divert
the course of investigation and as a cover up
through PW-1 falsely implicated an innocent
person i.e. PW-6 Satyajit Das and the
accused/appellant further threatened PW-40
to implicate Satyajit Das PW-6, which
ultimately she refused to do so.
(12) P.W-1 & P.W.-40 were influenced by
the accused/appellant not to disclose the
actual facts of the incident in order to screen
his involvement into the crime.
(13) Soon after the occurrence, the
accused/appellant though he was present at
the complex did not visit the place of
occurrence to take stock of the actual
happenings as the actual plan of murder was
within the knowledge of the
accused/appellant.
(14) On the day of occurrence, the
accused/appellant left his office chamber at
about 2 to 2.15 pm. breaking his normal
routine of 3 to 3.30 p.m.  CRL.A (J) No.28 of 2014 Page 90 of 105
[90]
(15) The accused/appellant insisted PW-5 to
leave office before the occurrence to
facilitate commission of the murder.
(16) The accused/appellant had
administered sleeping pills to the eye
witness PW-1 on 19.05.13 and thereafter
regularly, as a result of which P.W.-1, Papiya
Ghosh became mentally ill and subsequently
she has to be treated upon.
(17) The statement of PW-40 recorded by
the learned CJM (DW-4) under Section
306(4) (a) Cr.P.C about the full and true
disclosure of the incident has clearly proved
the involvement of the accused/appellant
with the offences.
(18) Scientific evidence also established that
no outsider assailant was present at the time
of the occurrence.
(19) Falsity in defence by the
accused/appellant.
[46] Mr. Kamar, learned Special P.P. has further submitted
that how to appreciate the circumstantial evidence has been laid
down in the landmark case of Sharad Birdhi Chand Sarda vs
State Of Maharashtra, AIR 1984 SC 1622 and following the
test of Sharad Birdhi Chand Sarda vs State Of Maharashtra.
The prosecution has proved the charge against the appellant by  CRL.A (J) No.28 of 2014 Page 91 of 105
[91]
excluding any hypothesis of his innocence. He has further
submitted that in this case, the witnesses have proved the substrum
and the core of the prosecution case. Evidence of PW-40 is
also corroborated by the other witnesses in the material
particulars. On the cumulative assessment, Mr. Kamar, learned
Special P.P. has contended that of all relevant aspects, both
factual and legal, the prosecution has been proved the culpability
of the appellant vis-à-vis the charge beyond any reasonable
doubt. This appeal is, therefore, without any merit.
[47] It is apparent from the submission of the learned
counsel appearing for the parties that not all, but the testimonies
of witnesses being PWs-1,5,6,11,12,36,39,40 and 41 and DWs-
1,2 and 4 have been relied for advancing the argument against
the impugned judgment and in defence of it. For purpose of
appreciating the rival contentions a brief survey of those
witnesses appears essential. So far PW-1, Smt. Papiya Ghosh, a
child witness is concerned, in her examination-in-chief, she has
categorically stated that whatever she had stated to the police
was at the dictate of the appellant. As such, her examination-inchief
is entirely a new version vis-à-vis the previous statement as
recorded by the police. The testimony of PW-1 has been
introduced for the first time in the trial after her mother PW-40
turned approver. She has stated in the examination-in-chief that
after hearing a sound, she went to the first floor of the Ganadoot
Patrika office and found that the appellant caught hold of Ranjit  CRL.A (J) No.28 of 2014 Page 92 of 105
[92]
Choudhury by pressing his mouth with his hand and the appellant
also caught hold of the hair of Ranjit Choudhury. Then the
appellant asked her father, Balaram Ghosh to stab Ranjit
Choudhury with a knife. Being afraid, she left that place, came
down and told her mother, PW-40. Initially, she was not believing
her. Her mother asked her not to come out of their room but she
went out. When she heard her mother crying she came out and
found the chappals of her father lying near the door of another
room which is situated adjacent to their room. She had also found
Sujit Bhattacharjee lying near the staircase with bleeding injuries.
She found one knife in the guardroom of Gandaoot Patrika office.
She saw her father lying on the lap of her mother having bleeding
injuries. Her mother was pressing the abdomen of her father with
a local gamcha. Then her mother asked her to call the appellant.
When she was proceeding to call him, she found his wife was
standing in the staircase. When she came back, she found
Purnima Banik (PW-5) standing near her mother. She also found
the appellant came to the courtyard through the press room. The
appellant called her and advised them to tell that two persons
came from outside wearing a green coloured ganjee and jeans
trouser with a wire and another man came to the spot with a
knife. Both of them murdered Ranjit Choudhury, Sujit
Bhattacharjee and her father. Almost on the same breath, Sushil
Choudhury threatened them if they did not carry out his
instructions the consequence would be like that of her father.  CRL.A (J) No.28 of 2014 Page 93 of 105
[93]
After some hours when her maternal aunt, Laxmi came to that
complex, the appellant took her to his room alone. Her mother
was not allowed to accompany her. Both her mother and aunt
returned to the courtyard. Again she repeated the said instruction
to tell the police that two persons from the outside killed those
persons. That time the appellant was told that Satyajit Das (PW-
6) be named as one of the killers. She has stated that for 12/14
days the appellant fed her sleeping pills with milk. The appellant
had shown two numbers of cheque written in the name of her
mother and herself. She has clearly stated that if they would like
to get that amount, they must obey his instruction.

 In the cross-examination, in the previous statement
recorded under Section 161 of the Cr.P.C. all these statements
were found omitting and she has admitted that the version she
has stated was never told to the police officer earlier.

[48] PW-40, Niyati Deb (Ghosh) has also brought a new
version, diametrically opposite to the previous version, she
introduced in the oral ejahar, Exbt.19 and her statement recorded
under Section 161 of the Cr.P.C. The version she initially changed
at the time of making statement under Section 306(4) of the
Cr.P.C., Exbt.20 series. Exbt.20 series does also include crossexamination
of the approver, PW-40 in the pre-committal phase.
In that statement, she stated about the relation of the deceasedhusband
with the appellant as the driver and also with her as the  CRL.A (J) No.28 of 2014 Page 94 of 105
[94]
casual worker in Ganadoot Patrika office. She has stated that her
daughter PW-1 told her that Ranjit Choudhury was killed. She did
not take it seriously. When she went outside she saw her husband
and Sujit Bhattacharjee had been scuffling between them. Sujit
was found lying under her husband as her husband overpowered
Sujit. When she asked why he was assaulting Sujit then her
husband dashed her and she fell over the ground. Then she tried
to call Prantosh Acharjee (DW-2), but Prantosh did not respond.
In the meanwhile, Balaram fell on the ground with bleeding
injuries. She took his head over her lap and started crying. The
blood was gushing out from the right side of her husband’s
abdomen. She asked PW-1 to inform the appellant and his wife.
At that time PW-5 came back when she stated to her that Balaram
had been killed. She asked Purnima find out what happened to
Sujit Bhattacharjee and Ranjit Choudhury. Within 4-5 minutes her
daughter came back. But she noticed at that time that the
appellant was talking to someone. Within few minutes police
came. Sujit Bhattacharjee and Ranjit Choudhury were taken by
the police vehicle. Her husband was also taken to the hospital.
She followed by another vehicle. She also stated that her mother
and sister came at the place of occurrence. At that time her
daughter was taken to the upstairs of the appellant. Her daughter
whispered that the appellant had instructed her to tell everyone
that two persons coming from outside killed her father and other
two persons. She was also accordingly instructed. She was also  CRL.A (J) No.28 of 2014 Page 95 of 105
[95]
communicated by her daughter that if that instruction was not
complied they would face serious consequence. Thereafter, she
narrated how she was duped by the sleeping pills. Whatever she
had stated to the police on that night was at the dictate of the
appellant. She had also stated that Ranjit was having serious
problem with the appellant over certain deals of the appellant.
Once her husband told her that the appellant stated to him that
Ranjit Choudhury was trying to take a job in another newspaper
and the same was stated to him by the appellant. The appellant
was apprehending that he would divulge all the secrets of that
organization. She has given some illustration of some activities
which were not in accordance with law. She was cross-examined
but she denied all those suggestions and gave her own version on
admitting that ‘on coming back to the house I found many police
personnel there. Later on, I along with my mother as well as
sister had gone to the room of Sushil Choudhury. Subsequently,
after coming to the ground floor from the upstairs, I have lodged
the complaint to the police.’ She met the appellant twice before
making such statement. She has also admitted that after her
arrest, the police had gone to the jail on several times and she
was interrogated. Her statements were recorded on the khata, the
police note book. She has further admitted that in respect of the
illegal activities as stated no complaint against the appellant was
filed. In the examination-in-chief, she has further improved the
version and admitted that she applied for being approver through  CRL.A (J) No.28 of 2014 Page 96 of 105
[96]
the Superintendent of Central Jail and pardon was tendered to
her. Her statement, Exbt.26 in series was recorded. She was
cross-examined. She reiterated her statements as noted. But she
stated further in the trial that she came out from room keeping
her said daughter inside the room. She saw in the ground floor
near stair case her husband and Sujit was scuffling. When she
tried to resist her husband, she was dashed back. As a result, she
fell down on the ground. She tried to call Prantosh Acharjee (PW-
2), but there was no response. When she came to that spot she
found, her husband bleeding. She took his head on her lap and
started crying. She has categorically stated that ‘while I was
nursing my husband he told me that with the help of accused
Sushil Choudhury he murdered Ranjit and in quick succession
accused Sushil Choudhury directed my husband to commit murder
of Sujit for disappearance of evidence.’ She sent her daughter for
calling Sushil Choudhury and his wife. At that point of time,
Purnima Banik came back to the Patrika office premises and she
told her that Balaram was murdered. She asked her to find out
the condition of Ranjit Choudhury. She has also stated that when
Sushil Choudhury appeared, she stated that her husband had
been killed but the appellant, Sushil Choudhury assured that he
would look after them since her husband was like his son. She has
also stated in the trial that:
“(i) in the evening time my daughter Papiya came
down from the grip of accused Sushil Choudhury and
in our room my daughter told that if we do not
narrate the incident as directed by the accused Sushil
Choudhury, myself and my daughter will be murdered  CRL.A (J) No.28 of 2014 Page 97 of 105
[97]
and accused Sushil Choudhury also directed us to tell
that there was two unknown assailants who
committed murder of my husband, Ranjit and Sujit
and initially, we narrated the incident to the police as
directed by accused Sushil Choudhury.
 * * * *
(ii) While I was coming down from the upstairs
accused Sushil Choudhury again called me and
accordingly, I returned to upstairs and met him in his
dining room and at that time, accused Sushil
Choudhury told me that as per version of Papiya
whether I have stated to the police or other person.
In reply, I told him that I have stated to the police
and other persons accordingly. accused Sushil
Choudhury also asked me whether I have stated the
name of Satyajit as assailant of this case and in reply
I told him that I did not tell the name of Satyajit
since Satyajit was not present at the scene of
occurrence and at that time accused Sushil
Choudhury told me that I was shouting much and
also pressurized me to say the name of Satyajit as
assailant of this case failing which myself and my
daughter will be murdered.”
 She has also stated how accused Sushil Choudhury
duped her and her daughter by sleeping pills.
 In the cross-examination, she has admitted that her
earlier version in the FIR and in the previous statement recorded
under Section 161 of the Cr.P.C. were dictated by the appellant.
She has admitted that no part of the new version was stated to
the police officer but she had stated so in her statement recorded
under Section 306 (4) of the Cr.P.C. However, she has admitted
in the course of cross-examination that:
“I made no statement to the Scribe of my Ejahar or in
my 161 Cr.P.C. statement or my statement recorded
under Section 306 of Cr.P.C. that while was nursing
my husband, he told me that with the help of the
accused Sushil Choudhury, he murdered Ranjit
Choudhury and in quick succession accused Sushil
Choudhury directed my husband to commit murder of
Sujit Bhattacharjee for disappearance of evidence
and while I enquired further about the incident from
my husband, my husband was not in a position to say
anything more.”
 [Emphasis supplied]  CRL.A (J) No.28 of 2014 Page 98 of 105
[98]
 She has also admitted that the appellant did not
directly ask her to make statement in the manner he directed to
make through PW-1. She has made another strange statement
that on 19.05.2013 during night hours at about 9/9.30 pm the
police personnel recorded her statement but according to the
recording officer, the oral ejahar as reduced in the writing was
received on 5.15 pm. Such recording is part of Exbt.6. Beyond
such admission, the approver has placed her version quite
elaborately.
[49] Apart other statements about what she saw or what
she said to the police or what had been the interaction with the
appellant, PW-40 has stated that ‘I made no statement to
Darogababu that accused Sushil Choudhury took my daughter
Papiya upstairs and she came down at night about 03.00 hours.
Attention of the witness is drawn to her 161 Cr.P.C. statement by
the defence. On perusal of the same it was found, though the
witness has flatly denied to have made such statement. Let the
portion of the statement marked as Exbt.D/8 subject to proof by
the investigating officer.”
[50] PW-41, Sri Manash Paul, the investigating officer of
the case has admitted that Exbt.D/8 is the statement of PW-40
recorded by him. PW-41 has introduced some material objects
and documents. He has briefly stated how he had conducted the
investigation including sending the physical exhibits to the SFSL.  CRL.A (J) No.28 of 2014 Page 99 of 105
[99]
[51] PW-5, Purnima Banik has consistently stated that she
was invited by DW-3 for lunch. She left the patrika premises for
lunch and came back at about 3 pm when she found seriously
injured Balaram’s head lying in the lap of PW-40. She has stated
that ‘I also found that Niyati Ghosh did not allow Balaram Ghosh
to talk with anybody and after that I feel that the incident was
happened by the complex inmates but not by the outsiders.’ When
she came back to the place of occurrence, Sujit Bhattacharjee was
mumbling but he was not in a position to speak out. She also
found the appellant was talking to PW-1. She also told to the
media persons that two outsiders were found while leaving from
the Ganadoot Patrika office at the relevant point of time.
 Satyajit Das (PW-6) did not make any statement of
material importance.
[52] PW-7, Biswajit Bhattacharjee has stated in the trial
that when he reached the place of occurrence on getting the
information he found there thronged a huge crowd.
[53] PW-36, Dr. Subhankar Nath, the forensic scientist,
has stated that the DNA test is the conclusive opinion and 100%
accurate based on scientific examination and technology. He has
stated that he collected the genetic profiles from various sources
at the place of occurrence. After examination of all those exhibits
including hawai chappal and knife he did not find any extra DNA
profile of any other person. But at the same time he has stated  CRL.A (J) No.28 of 2014 Page 100 of 105
[100]
that the sealing resin on the packets sent for examination did not
bear any signature other than of the Sub-Divisional Police Officer.
He has also admitted that no fingerprint examination of the
handle of the knife was carried out for matching the finger prints
of the suspects.
[54] PWs-11 and 12 are the driver of one Scorpio vehicle
owned by Sharda but the appellant tried to take control of that
vehicle unlawfully. The other witnesses are the seizure witnesses,
recording police officers, the formal witnesses or the coil mechanic
who visited just before the occurrence took place or the employee
of another newspaper, namely Ajker Fariad or the relatives of the
deceased or the staff of the appellant’s newspaper or the bank’s
manager. None of them witnessed any part of the transaction.
They were cited for laying evidence on conduct etc.
[55] PW-39, Sanjoy Biswas, who received the first
information from the appellant has admitted by aid of his phone
that the phone call was received from the appellant’s end at about
3.25 pm.
 In the interest of the brevity, their testimonies are not
visited inasmuch as even the arguing counsel did not make any
reference to those testimonies considering those peripheral to the
central issue.  CRL.A (J) No.28 of 2014 Page 101 of 105
[101]
[56] Now the pertinent questions which arise for response
are that whether PW-40, the approver can be trusted or whether
her statement in the trial has been corroborated by other
witnesses on the material particulars? Or whether PW-1 can be
trusted considering her total departure from her previous
statement? Whether PW-40 has been tendered pardon lawfully in
terms of section 306 of the Cr.P.C as she denied to have
participated in the commission of offence.
[57] The law is well settled that in view of Section 133 of
the Evidence Act read with Section 114 with Illustration (b) of the
Evidence Act that the approver’s testimony has to be presumed
suspect unless it is substantially corroborated in the material
particulars. In Bhubon Sahu vs. The King, reported in AIR
1949 PC 257, it has been observed by the privy council that:
“Reading these two enactments, together the Courts
in India have held that whilst it is not illegal to act
upon the uncorroborated evidence of an accomplice it
is a rule of prudence so universally followed as to
amount almost to a rule of law that it is unsafe to act
upon the evidence of an accomplice unless it is
corroborated in material respects so as to implicate
the accused and further that the evidence of one
accomplice cannot be used to corroborate the
evidence of another accomplice. The law in India,
therefore, is substantially the same on the subject as
the law in England, though the rule of prudence may
be said to be based upon the interpretation placed by
the Courts on the phrase ‘corroborated in material
particulars’.
 The word ‘corroboration’ means not mere evidence
tending to confirm other evidence. In DPP vs. Hester, reported
in (1972) 2 ALL ER 1056, Lord Moriss said:  CRL.A (J) No.28 of 2014 Page 102 of 105
[102]
“The purpose of corroboration is not to give validity
or credence to evidence which is deficient or suspect
or incredible but only to confirm and support that
which as evidence is sufficient and satisfactory and
credible; and corroborative evidence will only fill its
role if it itself is completely credible.”
[58] The test, therefore, is of the credibility and
confirmation by the independent witnesses to the material
particulars as the independent witness makes it safe to believe
the testimony of the usual suspect. The independent witnesses for
purpose of confirmation are PWs-1,5 and 36. On the face of the
improved version, inasmuch as when PW-40 was tendered
pardon, PW-1 was not further examined by the police in the
perspective of new disclosure but she was straightway produced
in the trial and bare reading of her testimony would show that she
did ‘a fine tuning’ with the testimony of PW-40, cannot be treated
as trustworthy in view of the further test that the child witness is
always prone to tutoring. Even waiving the objection as to the
integrity of the seizure, the finding of the SFSL would be lost in
the lurch unless those are jointed by other evidence for identifying
the real offender. PW-5 was the first witness who confronted PW-
40. It is not the version of PW-40 that when she talked to PW-5
she was under threat from the appellant. But PW-40 did not state
anything about the incident. However, PW-5 has stated that she
felt Balaram Ghosh was not being allowed to speak out and she
assumed that someone from inside was involved in the crime. On
the touchstone of presumption on the natural action, after PW-1’s
statement to PW-40 that she saw the appellant and Balaram  CRL.A (J) No.28 of 2014 Page 103 of 105
[103]
Ghosh killing Ranjit Choudhury, sending PW-1 to the appellant by
PW-40 is unnatural and cannot be believed by a prudent person.
It may be so that the police for giving a credible version for
protecting their image in the estimation of the general public has
managed to introduce the new version. How can it be stated with
certainty? But it is not unusual. As such, even though from the
analysis of the conduct of the appellant in the pre-murder and
post-murder circumstances, a thick suspicion chased him but
suspicion no matter how strong it is, cannot and must not be
permitted to take place of proof. It is very difficult to place trust
on PWs-1 and 40. Hence, we have been persuaded to interfere
with the finding of conviction and set aside the impugned
judgment and order as the prosecution according to us has failed
to prove the charge beyond reasonable doubt, not only by direct
evidence but also by the circumstantial evidence. The
circumstances as placed before us for consideration with all
humility cannot complete the chain. These are the circumstances
which may rouse strong suspicion but does not exclude the
hypothesis of innocence totally.

[59] Before parting with the records, we reiterate our
annoyance in respect of recording of the first information report.
In this case, even after disclosure of a cognizable offence to the
police they waited for oral ejahar to be filed by PW-40. In Lalita
Kumari vs. State of Uttar Pradesh and others, the
Constitution Bench of the apex court has observed that when a  CRL.A (J) No.28 of 2014 Page 104 of 105
[104]
cognizable offence is disclosed no inquiry or no other action is
contemplated in the Cr.P.C. but to record the first information
report for taking up investigation forthwith. If in future, such lapse
is noticed by us, we would not hesitate to take action against the
erring police officer.
 The other objection as raised in respect of tendering
pardon to PW-4, we are of the view that the procedure as adopted
by the Chief Judicial Magistrate, West Tripura, Agartala (DW-4)
suffers from no infirmity as in Suresh Chandra Bahri v. State of
Bihar, the apex court has culled out the law that pardon may be
tendered to any person believed to be involved directly or
indirectly in or privy to an offence. Therefore, it is a question of
belief at the relevant phase whether the person who is to be
tendered pardon is involved directly or indirectly in or privy to an
offence.

[60] The interpretation from the sole respondent as made
in respect of response of the accused person during his
examination under Section 313 of the Cr.P.C. cannot be
sustained. When the guilt is established by direct evidence or by
circumstantial evidence in terms of the principles as laid down in
Sharad Birdhi Chand Sarda vs State Of Maharashtra then the
accused has right or under obligation to explain or expose the
special knowledge for purpose of proving his innocence. In that
event, if silence is maintained or cogent explanation is not given,
that can be used as the missing link in the chain of circumstances.  CRL.A (J) No.28 of 2014 Page 105 of 105
[105]
Otherwise, any statement or part thereof, made during
examination under Section 313 of the Cr.P.C. cannot be used
against the accused, as such statement is not recorded on oath
and thus, those cannot be evidence within the meaning of Section
3 of the Evidence Act. What has surfaced is that the approver has
no regard for truth and her conduct has not persuaded us to place
trust in her testimony. We have given our reasons which have
dissuaded us from relying the testimony of PW-1, used for
corroborating the approver’s statement to sustain the finding of
conviction. It is well settled that appreciation of an approver’s
evidence has to satisfy a double test. His or her evidence must
show that he is a reliable witness. If this test is satisfied, the
second test which still remains to be applied is that the approver’s
evidence must receive sufficient corroboration [Saravanabhavan
vs. State of Madras: AIR 1966 SC 1273, Lachhi Ram vs.
State of Punjab: AIR 1967 SC 792, Piara Singh vs. State of
Punjab: AIR 1969 SC 961]. Both the tests in this case have
failed.
 In the result, the appeal stands allowed. The appellant
be released forthwith, if not required in any other case.
 Send down the LCRs.
 JUDGE CHIEF JUSTICE


Sujay 
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