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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO 737 OF 2006

Rumi Bora Dutta ... Appellant

Versus

State of Assam        ...Respondent

CRIMINAL APPEAL NO 738 OF 2006

Probal Dutta ... Appellant

Versus

State of Assam        ...Respondent

J U D G M E N T

Dipak Misra, J.

The factual score from which the present appeals arise has a  

sad and sordid story to tell reflecting the morbid obsession of the  

appellants with lust, abandonment of kernel of all human virtues  

and deep addiction with carnal desires.  The deceased- husband,  

as expected, trusted the wife, Ruma Bora, and such an emotional

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trust has always been regarded as a great complement to any  

person.   The other appellant,  Probal,  nephew of  the deceased,  

was shown affection, a beautiful and sacred sentiment in a human  

being and also charity, the wonder of life without a ceremony, and  

kept at his home to prosecute his studies but, an obnoxious one,  

the  infidelity  of  the  wife  with  incurable  sensuality  and  the  

monstrous ingratitude of the nephew, brought his tragic end.  The  

falsehood  of  both  the  wife  and the  nephew culminated in  the  

murder of the deceased, an Upper Division Clerk in the office of  

the Deputy Superintendent of Schools, Jorhat.  The wife, a teacher  

in the school and the nephew, a student of Class-X, ultimately  

faced trial and being convicted by the learned trial Judge under  

Section 302 read with 34 of Indian Penal Code (for short ‘IPC’) and  

sentenced to undergo rigorous imprisonment of life and to pay a  

fine of Rs.10,000/-, in default of payment of fine, to suffer further  

rigorous  imprisonment  for  three  months,  preferred  Criminal  

Appeal  No.  16  of  2002  before  the  Gauhati  High  Court  which  

affirmed  the  conviction  and  the  sentence.   Hence,  they  have  

preferred the present appeals by special leave.

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2. Shorn of details,  the prosecution case is  that on 4.6.1997  

about 4.30 a.m. the police came to know that at 1.30 a.m.  

one Naren Dutta had been hospitalized on being hit  by a  

bullet by the unknown miscreants.  The police rushed to the  

hospital  and found him dead.   A  general  diary  entry  was  

made on 4.6.1997 and thereafter the police moved to the  

house  of  the  deceased  at  Gajpuria  Village.   When  the  

Investigating  Officer  reached  the  house,  wife  of  the  

deceased  lodged  a  written  FIR,  Ext.-2,  stating  that  about  

1.30 a.m. three unknown persons with their faces covered  

with black clothes had entered into the house, tied her up  

with  the  point  of  pistol  and  while  one  guarded  her,  two  

others  entered their  bed room and after  15 minutes  they  

came out.   As alleged,  they lifted their  child,  Pranjal,  and  

took him out.  When she shouted, her nephew Probal Dutta,  

who  was  inside  the  house,  came  out  and  both  of  them  

looked  for  the  child  first  and  found  him  from  the  road.  

Thereafter,  they  proceeded  to  the  bed  room  where  the  

deceased  was  lying  on  the  bed  and  a  rope  had  been  

fastened  around  his  neck.   They  moved  him  to  the  civil  

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hospital where he was declared brought dead by the doctor.  

The  Investigating  Officer  on  enquiry  found  the  story  

narrated, vide Ext. P-2, to be absolutely false, concocted and  

incredible and,  accordingly,  arrested the accused persons.  

In course of investigation Probal Dutta confessed before the  

police  that  he  along  with  his  aunt  had  strangulated  the  

deceased and he had stabbed him on  his  chest.   Similar  

confession was made by the wife.  Thereafter a case under  

Section 302/34 IPC was registered and during investigation  

Probal Dutta, in pursuance of his disclosure statement, Ext.-

6,  led  to  discovery  of  the  two  pieces  of  handle  of  the  

skipping rope and the knife hidden inside the house.  The  

wife led to the discovery of the skipping rope that was used  

for strangulation.  Thereafter, the investigating agency got  

the  post  mortem  done,  recorded  the  statements  of  the  

witnesses and after completing all the formalities placed the  

charge-sheet  before  the  competent  court  which,  in  turn,  

committed the matter to the court of Session.   

3. The accused persons abjured their guilt and claimed to be  

tried.

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4. The  prosecution,  in  order  to  bring  home  the  charge,  

examined nine witnesses and two witnesses were examined  

as court witnesses.  The defence chose not to adduce any  

evidence.

5. The trial court, appreciating the material brought on record,  

came to hold that death was homicidal in nature; that there  

was no bullet injury on the chest but a stab injury with the  

knife that had been seized; that though the confession made  

before the police officer was not admissible in evidence, yet  

the  statement  that  provided  information  pertaining  to  

recovery  was  admissible;  that  the  recovery  made  by  the  

prosecution  was  absolutely  believable;  that  the  story  put  

forth by the wife being disowned by her was a circumstance  

against the accused to be taken note of; and that there was  

motive as the evidence on record would show existence of  

illicit  relationship  between  the  accused  persons  and,  

accordingly, found them guilty and imposed the sentence as  

has been stated hereinbefore.

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6. On an appeal being preferred the High Court re-appreciated  

the evidence, took note of all the circumstances and opined  

that the prosecution had proven the charge to the hilt and  

consequently  declined  to  interfere  with  the  impugned  

judgment of conviction.  

7. We have heard Ms. Kiran Bhardwaj, learned counsel for the  

appellant,  and  Mr.  Navnit  Kumar,  learned  counsel  for  the  

respondent-State.

8. First we shall refer to the post mortem report conducted by  

Dr. Narayan Bardoloi, PW-6.  The relevant part of the report  

is as follows: -

“(1) The dead body was in stout condition.  One stab  wound on the right side of the chest wall, size 5 c.m.  lateral to the sternum, measuring 1 c.m. in length and  1.5 c.m., in length and 1.5 c.m. in depth.  The wound is  gapping.  Clotted blood seen at the external margin and  at the level of the rib.  Underlying bony cage is intact.

(2) One  transverse,  continuous  ligature  mark  seen  around the neck at the level of thyroid cartel edge.  The  breadth of the mark is about 4 m.m.  The base of the  mark is redid and there is achymosis at the edges of  the  ligature  mark.   On  dissection  –  the  subcutenous  tissue is found acchymosed.

The  head  and  the  facre  are  congested.   The  tongue is swelled.

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The scalp, membrance and brain are all congested

Pleaurae,  lungs,  pericardium  and  heart  are  all  congested (affected)

Paritonium, stomach, intestine are also congested.

The injuries were ante mortem.”

9. In his report he has opined that the cause of death is due to  

asphyxia following strangulation and the same was caused  

with a rope.  It is further opined that the injury on the chest  

of the deceased was caused with some pointed weapon like  

dagger.  Thus, from the post mortem report it is manifest  

that the FIR lodged by the wife was a maladroit attempt to  

save her skin.  It was totally false.  It is interesting to note  

that she in her statement under Section 313 of the Code of  

Criminal  Procedure  has  disowned  the  same.   We  would  

advert to the effect of the same at a later stage.

10. It  is  seemly  to  state  here  that  the  whole  case  of  the  

prosecution  rests  on  the  circumstantial  evidence.   The  

learned trial Judge as well as the High Court has referred to  

certain circumstances.  When a case is totally hinges on the  

circumstantial  evidence, it  is  the duty of the Court to see  

that the circumstances which lead towards the guilt of the  

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accused have been fully established and they must lead to a  

singular conclusion that the accused is guilty of the offence  

and rule out the probabilities which are likely to allow the  

presumption of innocence of the accused.

11. More  than  six  decades  back  this  Court  in  Hanumant  

Govind Nargundkar v. State of M.P.1, had laid down the  

principles as under:-

“It  is  well  to  remember  that  in  cases  where  the  evidence  is  of  a  circumstantial  nature,  the  circumstances from which the conclusion of guilt is to  be  drawn  should  be  in  the  first  instance  be  fully  established, and all the facts so established should be  consistent only with the hypothesis of the guilt of the  accused.   Again,  the  circumstances  should  be  of  a  conclusive  nature  and  tendency  and  they  should  be  such  as  to  exclude  every  hypothesis  but  the  one  proposed to be proved.  In other words, there must be a  chain of evidence so far complete as not to leave any  reasonable ground for a conclusion consistent with the  innocence of  the accused and it  must  be such as to  show  that  within  all  human  probability  the  act  must  have been done by the accused.”

12. In  Sharad  Birdhichand  Sarda  v.  State  of   

Maharashtra2, the five golden principles which have been  

stated to constitute the panchsheel of the proof of the case  

1 AIR 1952 SC 343 2 (1984) 4 SCC 116

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based on circumstantial evidence are  (i) the circumstances  

from which the conclusion of guilt is to be drawn must or  

should be and not merely ‘may be’ fully established, (ii) 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, (iii) the circumstances should be  

of  a  conclusive  nature  and  tendency,  (iv)  they  should  

exclude  every  possible  hypothesis  except  the  one  to  be  

proved,  and  (v)  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.

13. In C. Chenga Reddy and others v. State of A.P.3, it has  

been held that in a case based on circumstantial evidence,  

the settled law is  that  the circumstances from which the  

conclusion of guilt is drawn should be fully proved and such  

circumstances must be conclusive in nature.  Moreover, all  

3 (1996) 10 SCC 193

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the circumstances should be complete and there should be  

no gap left in the chain of evidence.  Further, the proved  

circumstances must be consistent only with the hypothesis  

of the guilt of the accused and totally inconsistent with his  

innocence.   

14. Keeping the aforesaid principles in view the circumstances  

that have been established in the present case are required  

to be scrutinized.

15. The principal criticism advanced against the analysis in the  

impugned judgments by the learned counsel, appearing for  

the appellant, is that the trial court and the High Court have  

misdirected themselves in accepting the factum of recovery  

as admissible in evidence.  It is her further submission that  

the recovery part being a part of the confession before a  

police officer should have been discarded and once the said  

fact  is  kept  out  of  consideration,  the  dents  into  other  

circumstances  would  be  manifest  and  the  chain  of  

circumstances would be incomplete to establish the charge  

against the accused-appellants.   

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16. In this context,  we may refer with profit  to the ruling  in  

State of Maharashtra  v.  Damu S/o Gopinath Shinde  

and others4 wherein it has been observed that the basic  

idea  embedded in  Section  27 of  the  Evidence Act  is  the  

doctrine of confirmation by subsequent events. The doctrine  

is founded on the principle that if any fact is discovered in a  

search made on the strength of any information obtained  

from a prisoner, such a discovery is a guarantee that the  

information supplied by the prisoner is true. The information  

might be confessional or non-inculpatory in nature, but if it  

results  in  discovery  of  a  fact  it  becomes  a  reliable  

information.  Hence,  the  legislature  has  permitted  such  

information  to  be  used  as  evidence  by  restricting  the  

admissible  portion  to  the  minimum.   Thereafter,  the  two  

learned Judges proceeded to state as follows: -

“It is now well settled that recovery of an object is not  discovery  of  a  fact  as  envisaged  in  the  section.  The  decision  of  the  Privy  Council  in  Pulukuri  Kottaya v.  Emperor5 is  the most quoted authority for  supporting  the interpretation that the “fact discovered” envisaged  in the section embraces the place from which the object  

4 (2000) 6 SCC 269 5 AIR 1947 PC 67

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was produced, the knowledge of the accused as to it,  but the information given must relate distinctly to that  effect.”

17. In State of Punjab v. Gurnam Kaur and others6, it has  

been laid down that if by reason of statements made by an  

accused some facts have been discovered, the same would  

be  admissible  against  the  person  who  had  made  the  

statement in terms of Section 27 of the Evidence Act.

18. In Aftab Ahmad Anasari v. State of Uttaranchal7, after  

referring to earlier decision in Pulukuri Kotayya (supra), a  

two-Judge Bench opined in the context of the said case that  

when the accused was ready to show the place where he  

had concealed the clothes of the deceased, the same was  

clearly  admissible  under  Section  27  of  the  Evidence  Act  

because the same related distinctly to the discovery of the  

clothes of the deceased from that very place.

19. In Bhagwan Dass v. State (NCT) of Delhi8, relying on the  

decisions  in  Aftab  Ahmad  Anasari (supra)  and  Manu  

6 (2009) 11 SCC 225 7 (2010) 2 SCC 583 8 AIR 2011 SC 1863

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Sharma v. State9, the Court opined that when the accused  

had  given  a  statement  that  related  to  discovery  of  an  

electric wire by which the crime was committed, the said  

disclosure statement was admissible as evidence.

20. In the case at hand, both the accused have led to discovery  

of the knife and the skipping rope used in the crime.  It was  

within  their  special  knowledge.   The  medical  evidence  

corroborates  the  fact  that  the  deceased died  because  of  

strangulation  and  further  there  was  a  stab  injury  on  his  

chest.  Thus, the weapon and the other articles have direct  

nexus with the injuries found in the post mortem report.   

21. At this juncture, as mentioned earlier we proceed to advert  

to the issue pertaining to falsehood.   In this context we may  

fruitfully refer to the authority in State of Maharashtra v.  

Suresh10,  wherein  it  has  been  held  that  a  false  answer  

offered by the accused when his attention is drawn to the  

circumstances,  it  renders  the  circumstances  can  be  of  

inculpating nature.  In such a situation a false answer can  

9 AIR 2010 SC 2352 10 (2000) 1 SCC 471

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also be counted as providing “a missing link” for completing  

the  chain.   In  the  case  at  hand,  the  factum of  recovery  

through the witnesses has been proven that the accused-

persons had led to recovery.  When it was put to them they  

had  given  an  answer  in  the  negative  in  a  non-challant  

manner.   The incriminating materials were concealed and  

they were discovered being led by the accused persons.  In  

the case of Suresh (supra) it has been held that there are  

three  possibilities  when  an  accused  points  out  the  place  

where  the  incriminating  material  is  concealed  without  

stating that it was concealed by himself.  Elaborating on the  

three possibilities the Court proceeded to state as follows: -

“One is  that  he himself  would have concealed it.  Second is that he would have seen somebody else  concealing it.  And the third is that he would have  been told by another person that it was concealed  there.   But  if  the  accused  declines  to  tell  the  criminal  court  that  his  knowledge  about  the  concealment was on account of one of the last two  possibilities the criminal court can presume that it  was  concealed  by  the  accused  himself.   This  is  because the accused is  the only  person who can  offer  the  explanation  as  to  how else he  came to  know  of  such  concealment  and  if  he  chooses  to  refrain  from  telling  the  court  as  to  how  else  he  came to know of it, the presumption is well-justified  

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course to be adopted by the criminal court that the  concealment was made by himself”

22.  Tested on the anvil of the aforesaid principle the factum of  

recovery  is  proven  beyond  reasonable  doubt  by  the  

prosecution.

23. Presently  to  the  cumulative  effect  of  the  circumstances  

brought  by  way  of  evidence.   The  prosecution  witnesses  

have clearly deposed that the deceased was lying on the  

bed and they were told about the arrival of the miscreants  

and causing the injury.  It is also brought in evidence that  

apart from the appellants the old mother of the deceased  

was in the house.  The learned trial Judge as well as the  

High  Court  has  rightly  disbelieved  the  attack  by  any  

miscreant.  It is also interesting to note that the child was  

immediately  recovered  by  the  accused  Probal  from  the  

road.   All  probabilities  thought  to  be  covered  by  the  

accused-appellants  gradually melted and their complicity in  

the crime and the criminality of the mind stood revealed.  

On a  studied scrutiny of  the evidence on record,  we are  

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convinced that  the circumstances that  have been proven  

are that (i) occurrence took place about 1.30 a.m.; (ii) the  

deceased was found lying dead on his bed; (iii) the accused  

appellants lived with him in his house and were present at  

the time the incident took place; (iv) accused Probal made a  

statement under Section 27 of the Evidence Act and led the  

police to recover the knife, the weapon of assault and the  

missing handle of the skipping rope; (v) the skipping rope  

was  found  in  the  bed  room  and  was  recovered  at  the  

instance of the wife; (vi) the accused-appellant Rumi Bora  

gave a false information and tried to mislead the police; (vii)  

the  wife  had  disowned  the  information  in  her  statement  

under  Section  313 Cr.P.C;  (viii)  that  the  accused persons  

had not offered any explanation with regard to recovery of  

weapons from their house except making a bald denial; (ix)  

there is evidence on record that the wife had developed an  

illicit relationship with the nephew of the deceased, which  

provides  a  motive;  (x)  nothing  had  been  stated  in  their  

examination  under  Section  313  that  any  one  had  any  

animosity with the deceased; (xi) nothing was stolen from  

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the house; and (xii) the child was immediately found from  

the road.   

24. The  aforesaid  circumstances  clearly  establish  that  the  

prosecution has proved the guilt of the accused-appellants  

and the circumstances are conclusive in nature to exclude  

every hypothesis but the one proposed to be proved.  The  

chain of evidence is absolutely complete.  Thus, we have no  

hesitation in affirming the judgment of conviction and order  

of sentence passed by the learned trial Judge that has been  

given the stamp of approval by the High Court.

25. Consequently,  the  appeals,  being  devoid  of  merit,  stand  

dismissed.

…………………………….J.    [Dr. B.S. Chauhan]

….………………………….J.                                            [Dipak Misra]

New Delhi; May 24, 2013.

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