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SUPREME COURT OF INDIA
MADAN B. LOKUR, KURIAN JOSEPH, JJ.
Durga Burman (Roy) – Appellant
Vs.
State of Sikkim – Respondent
[Criminal Appeal No. 1010 of 2004]
Decided On : 31-07-2014
(2013) 4 SCC 422 – Relied upon
(b) Criminal trial – Circumstantial evidence – Motive – Accused alleged to have theft of watch and money as motive – All ornaments worn by deceased found on her body – Moreover husband and sons of deceased not alleging any theft – Motive attributed by prosecution falsified. (Para 15, 16)
(2012) 2 SCC 399 – Relied upon
(c) Indian Evidence Act, 1872 – Section 27 – Recovery – Watch alleged to be stolen from mother of accused and not the accused – Factum of recovery doubtful. (Para 16)
(2012) 2 SCC 399 – Relied upon
(d) Criminal trial – In case co-accused are acquitted, the left over accused can still be convicted if there are independent evidence against him – Instantly, out of two accused main accused acquitted – No appeal against such acquittal – Recovery not from accused but from his mother, that too after ten days – Reason not explained – Mother not examined – Witnesses not supporting disclosure statement or seizure – Prosecution miserably failing in establishing case against appellant. (Para 17, 18, 20)
AIR 1963 SC 1413; (2004) 12 SCC 224; (2013) 12 SCC 674 – Relied upon
Facts of the case:
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, 1860.
The Sessions Court convicted both the accused under Section 302/380/34 IPC.
In appeal, the High Court of Sikkim, by judgment dated 15.12.2003, acquitted the first accused Ranjit Roy.
In case of second accused, the appellant, the High Court maintained the conviction but converted it from that under sections 302/380/34 IPC to one under sections 302 and 380 IPC.
Finding of the Court:
Impugned judgment not sustainable.
JUDGMENT
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. 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 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, A/P. R.N. Chamling Building M.G. Marg, gangtok,
Occupation : Lottery Agent. Sd/-
Brij Kishore Prasad
Ext.P-6(a)
2 TASHI TSHERING BHUTIA S/o. Tensang Bhutia Dalep Busty, Kewzing South Sikkim Sd/-
SJ (E/N)
Gangtok
A/P Rajya Sainik Board, Palger Stadium Road, Gangtok Occupation : Lottery Seller Sd/-
Tashi
Ext.P6(b)
Sd/-
SJ (E/N)
Ex.P6(c)
Recorded by
Sd/-
(P.M. Rai)
Police Inspector
Sadar P.S. Gangtok"
Sd/-
SJ (E/N)
3. On the basis of above disclosure made on 12.7.2001, recovery of the watch was made on 17.07.2001, as per Annexure-P5 memo. The two witnesses in Exhibit P6 are witnesses to the seizure also. The Sessions Court, as per judgment dated
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