Page 1 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

Page 2 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.

2

Page 3 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

3

Page 4 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.

4

Page 5 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.

5

Page 6 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.

6

Page 7 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

7

Page 8 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

Maharashtra

2

, 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

8

Page 9 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

9

Page 10 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.

10

Page 11 16.In this context, we may refer with profit to the ruling in

State of Maharashtra v. Damu S/o Gopinath Shinde

and others

4

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.

Emperor

5

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

11

Page 12 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 others

6

, 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 Uttaranchal

7

, 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 Delhi

8

, 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

12

Page 13 Sharma v. State

9

, 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.

Suresh

10

, 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

13

Page 14 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

14

Page 15 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

15

Page 16 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

16

Page 17 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.

17