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IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

CRIMINAL APPEAL NO. 1010 OF 2004     

Durga Burman (Roy) … Appellant (s)   

Versus

State of Sikkim … Respondent (s)

J U D G M E N T  

KURIAN, J.:   

1. Appellant is the second accused in Criminal Case No. 31 of 2001  

on the file of the Sessions Judge, Sikkim at Gangtok. He was charged  

along with one Ranjit Roy under Sections 302, 380 read with Section  

34 of the Indian Penal Code (45 of 1860) (hereinafter referred to as  

‘IPC’).  According to the prosecution:

“These two accused persons were already in need of money  for  their  expenses  as  Durga  Roy  (Burman)  had  already  borrowed  much  cash  from  his  master  Sujit  Basak  before  completing  his  works  and  he  had  nothing  to  get  from  his  master  for  few  days.  The  money  problem  became  more  serious  when  on  5.7.2001  the  accused  person  received  telephonic call from the father of Ranjit Roy stating that his  mother  is  seriously  ill  at  home and he should return home  immediately. That night both the accused persons slept late  discussing  about  their  monetary  problems.  Next  day  (i.e.  

REPORTABLE

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6.7.2001) in the morning, Ranjit Roy went to the rented room.  Shibu Barman had already left  for  his  job.  After  some time  Durga Roy (Barman) also arrived in the room. Both of them  were  under  the  strong  impression  that  Lalan  Prasad  had  enough  money  in  his  house  as  he  was  engaged  in  lottery  business and both his sons were also working. Therefore, the  two accused persons made a plan to steal money from Lalan  Prasad’s house as he was already left for job.  

The  accused  persons  had  hot  discussion  with  Raju  Kumar,  elder son of deceased in connection with use of bathing soap  for toilet purposes. By 0900 hrs,  both the sons also left for  their  daily  works.  Then  only  the  deceased  Manorama  Devi  remained in the house besides the two accused persons. The  two accused persons decided to kill the deceased Manorama  Devi in order to steal money from her house as she was the  only person present in the house. Deceased Manorama Devi  was inside  the room of  her  sons when  accused Durga Roy  (Barman) pretended to talk to her, thereby diverting her mind.  At that moment, the other accused Ranjit Roy came from his  room bringing a strip (  sic  ) of cloth and quietly went behind the    deceased Manorama Devi and on getting the opportunity, the  accd. Ranjit  Roy quietly put the strip round the neck of the  deceased  and  strangulated  her.  As  the  victim  became  unconscious, he encircled the ligature twice on her neck and  tightly made a knot on the back of the neck (  sic  ) as a result    she died on the spot due to strangulation by ligature. Then  leaving  the  dead  body  on  the  floor,  the  accused  persons  searched the house and took away one wrist watch “SITCO”  and cash Rs.2300/- and fled away from P.O. At about 1200 hrs,  the accused persons were seen by one Mrs. Kakulay Biswas  w/o.  Parusotham  Biswas,  at  Tenzing  and  Tenzing,  Gangtok  going  towards  Deorali  side.  Accused  Durga  Roy,  who  was  known to her, told her that they were going home. Then they  never came back to Gangtok.”

(Emphasis supplied)

2. It is thus further case of the prosecution that the appellant herein

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made Exhibit P6-disclosure statement while in custody on 12.07.2001:

“My true statement is that on 6/7/01 Friday that the Watch  which I had stolen after murdering the Lottery Seller’s wife, I  have kept the same in NJP. I can hand over the said Watch to  Police. I have kept the said Watch in homes at NJP.

Sd/- (illegible)

Accused Durga Roy Witness

1) BRIJ KISHORE PRASAD, S/o. Ram Janam Prasad Basantpur Near Police Station Dist. Sewan, Bihar, Sd/- A/P. R.N. Chamling Building Brij Kishore Prasad M.G. Marg, gangtok, Ext.P-6(a) Occupation : Lottery Agent.

2) TASHI TSHERING BHUTIA S/o. Tensang Bhutia   Sd/- Dalep Busty, Kewzing          SJ (E/N) South Sikkim Gangtok

A/P Rajya Sainik Board, Palger Stadium Road, Sd/- Gangtok Tashi Occupation : Lottery Seller Ext.P6(b)

Sd/- SJ (E/N)

Recorded by Sd/- Ex.P6(c)

(P.M. Rai)     Sd/- Police Inspector  SJ (E/N) Sadar P.S. Gangtok”

3. On the basis of above disclosure made on 12.7.2001, recovery of

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the watch was made on 17.07.2001, as per Annexure-P5 memo.  The  

two witnesses in  Exhibit  P6 are witnesses to  the seizure also.  The  

Sessions Court, as per judgment dated 31.12.2002, convicted both the  

accused under Section 302/380/34 IPC.  

4. In  appeal,  the  High  Court  of  Sikkim,  by  judgment  dated  

15.12.2003, acquitted the first accused Ranjit  Roy for the following  

reasons:

“12. At this stage, it is relevant to state that the appellants  were charged under section 302/34 IPC and have been found  guilty  thereunder.  To  invoke the aid  of  section 34 IPC,  it  is  necessary that the criminal act complained against was done  in  furtherance  of  the  common  intention  of  all  the  accused  persons. The common intention implies prior meeting of mind.  It can also be formed suddenly at the spot. The prosecution  has not laid any evidence on this score.

So far as appellant no.1 Ranjit Roy is concerned, there is  no evidence against him except that in the morning on the  date  of  occurrence  he  was  present  in  the  house  of  the  deceased and remain absconded till  he was arrested on 8  th    July, 2001 at New Jalpaiguri. An act of absconding is no doubt  a relevant piece of evidence but the said act does not by itself  lead  to  a  conclusion  that  he  is  guilty.  There  is  no  other  incriminating  material  against  him  to  connect  with  the  offence.  The  suspicion  however  strong  be  cannot  take  the  place of proof. For reasons aforesaid, we are inclined to hold  that  the  prosecution  has  not  been  able  to  prove  its  case  against  appellant  no.1 Ranjit  Roy beyond reasonable doubt.  He  is,  therefore,  entitled  to  be  acquitted  on  the  benefit  of  doubt.”

(Emphasis supplied)

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5. However, in the case of second accused-appellant herein, it was  

held by the court as follows:

“13. In  the  present  case,  the  charge  against  both  the  appellants is specific in the sense that in furtherance of their  common  intention  they  committed  the  murder  of  the  deceased. With the acquittal of appellant no.1 Ranjit Roy the  charge of sharing common intention fails. It does not however  mean  that  appellant  no.  2  Durga  Roy  can  also  secure  acquittal.  There  is  no  legal  bar  to  convict  him  under  the  substantive provision if on the basis of evidence it could be  held that he was the author of the crime.  

Let us, therefore, examine his case separately. As already  stated, he was found in the house of deceased in the morning  on the date of occurrence. In the said house, no other inmate  was present except the deceased. He was a co-tenant along  with  Shibu  PW4  in  respect  of  one  room  belonging  to  the  deceased. Shibu PW4 deposed that he had gone to the house  of the deceased at 2.30 p.m. to 2.45 p.m. to find out if he was  present in his room but he did not find him and his room was  locked.  He  had  not  returned  to  his  room  since  then  and  remained absconded till he was arrested on 8th July, 2001. He  gave recovery to the Sitco wrist which was found missing on  the  date  of  occurrence.  Having  regard  to  the  above  circumstances,  we  have  no  hesitation  to  hold,  that  he  (appellant  no.2  Durga  Roy)  after  committing  murder  of  the  deceased also committed the theft of the wrist watch exhibit  IX. He is, therefore, clearly guilty of offences punishable under  sections  302  and  380  IPC.  The  conviction  recorded  by  the  Sessions  Judge  under  sections  302/380/34  IPC  is  hereby  converted to one under sections 302 and 380 IPC.”

(Emphasis supplied)

6. Heard learned counsel appearing for the appellant and learned  

counsel appearing for the State of Sikkim.

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7. The  basis  of  maintaining  the  conviction  against  the  appellant  

herein who is the second accused is:

i. He was in the house of the deceased in the morning on the date  of occurrence.

ii. No other inmate was present except the deceased.

iii. The co-tenant had deposed that when he went to the house of  the deceased between 2.30 – 2.45 p.m. on the same day,  he  could not find the appellant and room was locked.

iv. He had not returned to his room and remained absconded till he  was arrested on 8th July, 2001.

v. He gave recovery of the wrist watch belonging to husband of the  deceased  which  was  allegedly  found  missing  on  the  date  of  occurrence.

8. On these grounds, it was concluded that the appellant/accused  

after committing the murder of the deceased, also committed theft of  

the wrist watch and, hence, he was guilty of offence punishable under  

Sections 302 and 380 IPC.  

9. We are afraid, none of the circumstances by itself would lead to  

the irresistible conclusion that the appellant herein is the author of the  

crimes under Sections 302 and 380 IPC.  It is in evidence of PWs 3 and  

4 - the key witnesses that apart from the appellant, one Ranjit Roy

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was  also  seen  in  the  house  of  the  deceased  and,  according  to  

prosecution also, as noted in their report, it was Ranjit Roy-accused  

no.1 “who quietly put a strip of cloth round the neck of the deceased  

and  strangulated  her”.  It  is  in  evidence  that  both  the  accused  

belonged to New Jalpaiguri.  It is the case of the prosecution itself that  

the first accused had received a message on the evening of 5.7.2001  

that his mother was seriously ill and she was at home.  PW-13 Kakulay  

does not support the case of the prosecution that she had seen the  

accused in the afternoon of 4th July, 2001 as proceeding to Siliguri.  

She is  specific  and categoric  of  that  date because it  was the first  

death anniversary of her father-in-law. The accused were in fact not  

absconding. They had gone to their native place New Jalpaiguri and  

they were arrested from their respective homes only.  

10. The only other ground is that of recovery under Section 27 of the  

Indian Evidence Act, 1872 (hereinafter referred to as “Evidence Act”),  

recovery of the wrist watch which was alleged to have been stolen by  

the  appellant.  From  the  evidence  available  on  record,  we  find  it  

extremely  difficult  to  place  reliance  on  that  recovery  for  many  

reasons.  The  wrist  watch  belongs  to  PW1,  the  husband  of  the  

deceased.   PWs  2  and  3  are  the  sons  of  the  deceased  and  were

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staying with PW1 and the deceased. PWs 1, 2 and 3 do not have a  

case that the wrist watch belonging to PW1 had been stolen by the  

appellant. They do not also have a case about the money that has  

been allegedly taken by the accused after committing murder. There  

is not even a whisper in the evidence of PWs 1, 2 and 3 regarding the  

theft of either the wrist watch or the cash except for the identification  

of the wrist watch by PW1 as belonging to him. There is not even a  

reference to the alleged missing of the wrist watch since 06.07.2001  

or the loss of cash. It is only in the evidence of PW16-the investigating  

officer  that  the  accused  had  a  motive  of  committing  theft  after  

murdering Smt. Manorama Devi and that an amount of Rs.2,300/- and  

wrist watch belonging to PW1 had been taken by the accused.  

11. Exhibit P5-recovery memo says that the wrist watch had been  

handed  over  to  the  investigating  officer  by  the  mother  of  the  

appellant.  However,  Exhibit  P6-disclosure  statement  recorded  on  

12.07.2001  which  has  already  been  extracted  above,  though,  not  

admissible as such, states that the appellant had kept the wrist watch  

in his house at New Jalpaiguri and that he could handover the same to  

the police.  The investigating officer examined as PW16 states that  

the wrist watch was recovered from the house of the appellant. It is

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not  explained  as  to  how  the  mother  of  the  appellant  came  into  

custody  of  the  wrist  watch  which  had  been  allegedly  kept  in  

concealment by the appellant in his house. She was not examined. Yet  

another significant aspect is that the disclosure statement-Exhibit P6  

is made only on 12.07.2001, after five days of the incident and yet the  

recovery  is  effected  only  on  17.07.2001.  The  witnesses  to  the  

disclosure statement as well as seizure memo PWs 11 and 12 have  

very  clearly  stated  in  their  evidence  that  their  signatures  were  

obtained on some papers which had already been filled up by the  

police and that no statement had been given by the appellant in their  

presence.

12. Another significant aspect in the case is that all ornaments worn  

by the deceased were on the body and nothing had been removed. If  

the accused had a motive to commit theft, it is only normal that they  

would lay their hands on the jewellery as well.  

13. On the basis of the evidence we have discussed above, we find it  

extremely difficult to hold that the prosecution has laid a foundation  

for an effective prosecution and has proved beyond doubt that it is the  

appellant who committed the murder of Manorama Devi. It has to be  

noted that this case is set up only on circumstantial evidence. All the

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circumstances  should  lead  to,  without  breaking  the  chain,  the  

involvement of the accused and the accused only. On the only ground  

that the accused was seen with the deceased in the morning of the  

date of incident and that they were not seen in that place for another  

two days, cannot, by themselves, lead to the conclusion that it is the  

appellant who authored the crime.   

14. ‘To abscond’ means, go away secretly or illegally and hurriedly to  

escape from custody or avoid arrest. It has come in evidence that the  

accused had told others that they were from their place of work at  

Gangtok to their home at New Jalpaiguri. They were admittedly taken  

into custody from their respective houses only, at New Jalpaiguri on  

the third day of the incident. Therefore, it is difficult to hold that the  

accused had been absconding. Even assuming for argument sake that  

they were not seen at their work place after the alleged incident, it  

cannot  be held  that  by itself  an adverse inference is  to  be drawn  

against  them  as  held  by  this  Court  in  Sunil  Kundu v.  State  of  

Jharkhand1. To quote paragraph-28:

“28.  It  was argued that the accused were absconding and,  therefore, adverse inference needs to be drawn against them.  It is well settled that absconding by itself does not prove the  guilt of a person. A person may run away due to fear of false  

1  (2013) 4 SCC 422

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implication or arrest. (See: SK. Yusuf v. State of W.B.2) It is  also true that the plea of alibi taken by the accused has failed.  The  defence  witnesses  examined  by  them  have  been  disbelieved.  It  was  urged  that  adverse  inference should  be  drawn  from  this.  We  reject  this  submission.  When  the  prosecution is not able to prove its case beyond reasonable  doubt it  cannot take advantage of the fact that the accused  have  not  been  able  to  probabilise  their  defence.  It  is  well  settled that the prosecution must stand or fall on its own feet.  It cannot draw support from the weakness of the case of the  accused,  if  it  has  not  proved  its  case  beyond  reasonable  doubt.”

15. If  the  motive  for  the  accused  in  committing  the  murder  of  

Manorama Devi was theft, it is again difficult to understand why the  

accused  did  not  remove  any  ornaments  worn  by  the  deceased.  

Hence, the prosecution version regarding the motive also, is shaken.  

(Please see the decision of this Court in Madhu v. State of Kerala3)

16. The evidence available on record would on the contrary give an  

indication that theft is a story of the investigation officer only. Neither  

PW1  whose  wrist  watch  is  said  to  be  stolen  nor  the  sons  of  the  

deceased-PWs 2 and 3 have any case of the alleged theft  of  wrist  

watch or cash. The recovery is also doubtful. There is no consistent  

version of the recovery.  The person from whom the recovery has been  

effected, viz., the mother of the appellant, has not been examined.  

2  (2011) 11 SCC 754 3  (2012) 2 SCC 399

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Despite the availability of the appellant, the recovery is through his  

mother.  There is no explanation as to how she got to watch.  This  

could also be the reason why the trial court in the judgment dated  

31.12.2012 held that “Technically speaking there is no compliance of  

Section  27  Evidence  Act.  Though  the  wrist  watch  Ext.  IX  was  

recovered from the house of accused Durga Roy but the record reveals  

that the said wrist watch was handed over to the Police by the mother  

of the accused Durga Roy”.  It has to be noted that recovery of the  

wrist  watch from the house of the appellant is  the only ground on  

which the High Court has maintained the conviction of the appellant.  

17. It has been argued by the learned counsel for the appellant that  

the accused no.1 Ranjit Roy on whom the overt act of strangulation is  

alleged, having been acquitted by the High Court, the conviction of  

the appellant cannot be maintained. It is further contended that by  

the  acquittal  of  the  main  accused,  the  whole  theory  of  common  

intention  has  been  shattered  and  that  the  appellant  is  entitled  to  

succeed  on  that  ground.  We  are  afraid,  the  contention  cannot  be  

appreciated.  No  doubt,  there  are only  two accused and they  have  

been charged under Sections 302/380/34 IPC and one of them has  

been acquitted. That by itself is not a ground to acquit the co-accused,

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in case there is independent evidence. Of course in the absence of  

such  independent  evidence,  the  accused  could  succeed  on  that  

ground as held by this Court in  Krishna Govind Patil v.  State of  

Maharashtra4,  which is a case of Section 302 read with Section 34  

IPC.  To quote,

“8. … While it acquitted Accused 1, 3 and 4 under Section  302,  read  with  Section  34  of  the  Indian  Penal  Code,  it  convicted Accused 2 under Section 302, read with Section 34,  of the said Code, for having committed the offence jointly with  the acquitted persons.  That is  a legally impossible position.  When accused were acquitted either on the ground that the  evidence was not acceptable or by giving benefit of doubt to  them, the result in law would be the same: it would mean that  they  did  not  take  part  in  the  offence.  The  effect  of  the  acquittal of Accused 1, 3 and 4 is that they did not conjointly  act with Accused 2 in committing the murder. If they did not  act conjointly with Accused 2, Accused 2 could not have acted  conjointly with them. …”  

18. In the case before us, the allegation is that after committing the  

murder, the accused committed theft also. As held by this Court in  

Amrita alias Amritlal v. State of M.P.5 at paragraph-8 that:

“8. … Mere acquittal of some of the accused on the same  evidence  by  itself  does  not  lead  to  a  conclusion  that  all  deserve  to  be  acquitted  in  case  appropriate  reasons  have  been  given  on  appreciation  of  evidence  both  in  regard  to  acquittal and conviction of the accused. …”

4  AIR 1963 SC 1413 5  (2004) 12 SCC 224

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19. The same view was followed by this Court in Raja v. State  6  . To  

quote paragraph-12:

“12. … It is also relevant to point out that the High Court  took note of the general principle that if the prosecution case  is the same against all the accused or with regard to some of  the accused on the same set of evidence available on record  with reference to any of the accused, then the Court would not  be committing any mistake in acquitting all the accused and  conversely, if it is possible to do so, namely, to remove the  chaff from the grain, the Court would not be committing any  mistake in sustaining the prosecution case against whom the  evidence is shown to be intact.”

20. Thus, there should be independent evidence.  The conviction of  

the appellant is by placing reliance solely on the recovery of the wrist  

watch. We have already held above that, it is faulty in procedure and,  

apart from that, the same does not infuse any confidence in the mind  

of the Court in the given circumstances, when pitted against the rest  

of the evidence, that the appellant committed the murder with the  

motive  of  theft.   It  is  not  enough  that  the  circumstances  lead  to  

possibility  or  probability  of  the  involvement  of  the  accused;  the  

circumstances  should  point  all  the  fingers  to  the  accused  and  the  

accused only. That is not the situation in this case. The circumstances  

can lead to many other inferences. The chain is also not complete.  

6  (2013) 12 SCC 674

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The first accused, who according to the prosecution is the perpetrator  

of the offence under Section 302 IPC, has been acquitted. The State  

has not filed an appeal against the acquittal. It is a case of Sections  

302,  380  read  with  Section  34  IPC.   The  whole  theory  of  the  

prosecution is that it is the first accused who has been acquitted by  

the  High  Court,  who  tied  the  piece  of  cloth  on  the  neck  of  the  

deceased  and  strangulated  her.  The  only  piece  of  shaky  evidence  

against the appellant is of recovery of the wrist watch of PW1 from  

and  through  the  mother  of  the  appellant.  She  was  not  examined.  

There  is  no  explanation  as  to  how  despite  the  availability  of  the  

appellant,  the recovery is  effected through his mother.  There is  no  

explanation for the delay of about ten days in effecting recovery. The  

witnesses have not supported the disclosure statement or the seizure.  

The owner of the wrist watch-PW1 does not have a case that his wrist  

watch  had  been  stolen  by  the  appellant.  That  version  is  not  also  

supported by the children of the deceased. They have no case of theft  

of wrist watch or cash.  

21. In such circumstances, we have no hesitation in holding that the  

prosecution  has  miserably  failed  in  proving  the  case  against  the

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appellant  and  the  appellant  is  entitled  to  succeed.  The  appeal  is  

allowed. The conviction of the appellant under Section 302/380 IPC is  

set aside. He shall be released forthwith in case he is not required to  

be detained in connection with any other case.

                                               ...…………….……….J.                                         (MADAN B. LOKUR)

                                                    .….……….………...…J.                          (KURIAN JOSEPH)

New Delhi; July 31, 2014.