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HIGH COURT OF TRIPURA

AGARTALA

Crl. A.(J) 54/2024

Sri Ritesh Debbarma , son of Shambhuram Debbarma, resident

of Birchandra Thakur Para, P.S. Kalyanpur, District - Khowai,

Tripura;

----Appellant

Versus

The State of Tripura ----Respondent

For the Appellant(s) : Mr. Ratan Datta, Advocate

Mr. A. Baidya, Advocate

Ms. A. Chakma, Advocate

Ms. D. Debroy, Advocate

For the Respondent(s) : Mr. Raju Datta, PP

Date of hearing : 31.03.2026

Date of delivery of judgment

& Order : 07.04.2026

Whether fit for reporting : Yes

BEFORE

HON’BLE JUSTICE DR. T. AMARNATH GOUD

HON’BLE MR. JUSTICE S. DATTA PURKAYASTHA

JUDGMENT

(Dr.T.Amarnath Goud, J)

1. Heard Mr. Ratan Datta, learned counsel appearing for

the appellant. Also heard Mr. Raju Datta, learned Public

Prosecutor, appearing for the respondent-State.

2. The convict-appellant, by means of filing the present

appeal has challenged the judgment and order of conviction and

sentence dated 10.07.2024 passed by the learned Sessions Judge,

Khowai, Tripura, in connection with case No. S.T.(Type-1) 26 of

2018, whereby the appellant was convicted under Sections

376D,302,34 of the IPC and was sentenced to under rigorous

imprisonment for life, which shall mean remainder of his natural

life, and was ordered to pay a fine of Rs.50,000/ - with default

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stipulation, for committing offence punishable under Sections

376D read with section 34 of IPC; and was further sentenced to

undergo rigorous imprisonment for life and to pay a fine of

Rs.50,000/- with default stipulation for committing offence

punishable under Sections 302 read with section 34 of IPC;

wherein both the sentences shall run concurrently.

(3)(a) Facts leading to the present appeal are that, on

10.03.2017, one Sura bala Debbarma (PW -2) lodged an oral

complaint with the Kalyanpur police station to the effect that on

09.03.2017 in the night at about 21.00 hours, she was taking rice

in her house and her daughter, the victim herein, (aged about 18

years), a Madhyamik candidate, on receiving a phone call went out

of the house and since the victim did not return home for quite

sometime, the informant came out of her house and searched for

her daughter in the nearby surrounding and also in the house of

her neighbours, but could not trace her. Subsequently in the next

day morning at around 7 a.m. she came to know from one

Swadesh Debbarma ( (PW-5) that the condition her daughter i.e.

the victim, was serious and was lying on a field at Ganthabil and

on getting the information, she rushed there and found the victim

lying on the field, and on seeing the same, she apprehended that

someone might have raped and then killed her daughter i.e. the

victim. Subsequently, the complaint was registered as Kalyanpur

PS case no. 2017/KLN/006, d ated 10.03.2017 under Sections

376D/302/34 IPC, and the same was endorsed to SI Nidhi Ram

Reang (PW-41) for investigation.

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(3)(b) In course of investigation, the IO visited the PO,

examined material witnesses and recorded their statement under

Section 161 Cr.P.C., arranged for post mortem examination of the

deceased and seized several incriminating materials by preparing

seizure list, collected medical examination reports of the victim

and accused persons as well as SFSL reports of the samples

obtained. In between the investigation, the accused persons,

namely, Dipankar Debbarma, Amrit Debbarma (juvenile in conflict)

and the present appellant, Ritesh Debbarma were arrested. The

I.O. has also arranged for obtaining disclosure statements of the

accused persons. On completion of investigation, charge sheet was

filed. On receipt of the charge sheet, specific case was registered

before the learned trial court. Charge was framed against the

accused persons, namely, Dipankar Debbarma and the present

appellant, to which both of them pleaded not guilty and claimed to

be tried. Accordingly, trial commenced.

(3)(c) In course of trial, prosecution examined as many

as 43 witnesses and exhibited some documents. On closure of

prosecution witnesses, the appellant was examined under Section

313 Cr.P.C. to which he denied all the incrimination materials

brought against him, but denied to adduce any defence witness.

After hearing argument of both sides, learned trial court passed

the judgment and order of conviction and sente nce, as stated

supra. Being aggrieved, the appellant has filed the present appeal

challenging the impugned judgment and order of conviction and

sentence.

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4. Mr. Ratan Datta, learned counsel appearing for the

appellant, has argued that the entire prosecution is based on

circumstantial evidence as there is no eye witness to the alleged

incident. Further, learned counsel has submitted that the

complainant has exaggerated her statement during her deposition

and moreso all the witnesses are hearsay. Mr. Datta, has also

questioned the delay in lodging the FIR. He has also submitted

that though mobile phones of the victim and appellant and other

accused persons are seized but CDR has not been collected, it

cannot be assumed that the appellant had called the vict im over

phone on the relevant date and time and committed the crime.

Learned counsel has also submitted that the medical reports so

collected are very much contradictory and the same do not

establish involvement of the appellant in the alleged commission

of offence.

5. Mr. Datta, has further submitted that the cause of

death of victim is asphyxia which is homicidal in nature. Learned

counsel has also submitted that the questions put to the appellant

in his examination under Section 313 CrPC are self contradictory.

Mr. Datta has submitted that the post mortem report also does not

disclose any evidence so as to ascertain that the appellant is

involved in the alleged commission of rape and murder. Mr. Datta,

has further argued that the conviction has been solely made on

the basis of DNA profiling i.e. collection of anal swap, but as per

deposition of PW-38, the MO of Kalyanpur CHC, she has collected

only the vaginal swap and scalp hair as produced by police after

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seizure, and also argued that the word ‘etc.’ m ade in her

deposition does not mean that she has collected or received the

anal swap under seizure for medical test.

6. He has further submitted that in examination of

accused under section 313 CrPC, detailed question has to be put

to the accused with regard to the findings or results of the medical

examination conducted by the medical officers and, thus, it has

been argued that as per settled provisions of law the accused has

not been given a fair opportunity in that regard. Learned counsel

has also submitted at the time of post mortem the viscera was

collected from the hospital and was handed over to the police

without any acknowledgement, and the same was collected on

10.03.02017 and was handed over on 19.03.2017 and there is no

evidence as to where the same was preserved for a long period.

Learned counsel has also argued that there was no evidence on

record indicating when the DNA samples were collected, how they

were preserved, or in what manner they were forwarded to the

laboratory and in the absence of this evidence, the credibility of

the DNA report stands vitiated and the conviction is bad in law.

Mr. Datta, has also argued that from the disclosure statement of

the other accused persons it is well established that the appellant

was not present or involved with the alleged commission of

offence.

7. He has also submitted that as per Section 27 of the

Indian Evidence Act, extra-judicial confession of co-accused or

accused before the police at police station is not admissible in law

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and herein this case, the disclosure statement was made at the

police station before Executive Magistrate but not before any

Judicial Magistrate, which is required under the Act. Mr. Datta,

learned counsel rests his submission on the prayer of acquittal of

the appellant.

8. In support of his submission, Mr. Datta, learned counsel

on the issue of DNA profiling, has placed reliance upon the

judgment of the apex court in Kattavellai @ Devakar vs. State

of Tamilnadu , reported in 2025 SCC Online SC 1439 ;

Dashwanth vs. State of Tamil Nadu, reported in 2025 SCc

OnLine SC 2186 ; on the issue of order extra-judicial confession,

placed reliance upon the judgment of the apex court in Bernard

Lyngdoh Phawa vs. State of Meghalaya , reported in 2026 SCC

Online SC 116; on the issue of breach of Section 313 Cr.P.C.,

placed reliance upon the judgment of the apex court in Ramji

Prasad Jaiswal @ Ramjee Prasad Jaiswal and ors , reported in

AIR OnLine 2025 SC 1073 ; on the issue of circumstantial

evidence, placed reliance upon the judgment of the apex court in

Chandrapal vs. State of Chhattisgarh , reported in AIR 2022

SCC 2542.

9. On the other hand, Mr. Raju Datta, learned PP

appearing for the respondent-State at the very inception has

submitted that PW-2, the complainant, in her examination in chief

has specifically stated that the accused persons alongwith the

present appellant over phone called her daughter on the alleged

date and time to which her daughter attended and left the house.

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It has been further submitted that from the deposition of PWs 17

and 18, presence of the accused person at the alleged place of

occurrence has been confirmed.

10. Mr. Datta, learned PP has further submitted that from

the DNA examination report, it is very much evident that the

appellant has actively participated in the alleged commission of

rape and murder of the victim. Learned PP has further submitted

that from the seizure list dated 10.03.2017 (Exbt-1) it is evident

that the anal swab was collected at Kalyanpur CHC morgue in

presence of witnesses and the same was confirmed by PW-38. It

was further submitted that the blood sample of the appellant was

collected on 14.03.2017 at Kalyanpur CHC and the same was

confirmed by PW-21. Further, learned PP has submitted that from

the DNA profiling it is evident that the anal swab of the deceased

matches with the blood sample of the appellant.

11. Learned PP has further submitted that the appellant

during his examination under Section 313 Cr.P.C. declined to

adduce any witness on his behalf. Further the disclosure statement

of the appellant is in corroboration with the disclosure statement

of other accused persons which clearly establishes the prosecution

story. Learned PP has further submitted that the conviction

returned by the learned trial court is based on a thorough and

careful appreciation of the oral and documentary evidences which

is well-reasoned and legally sound and the same requires no

interference.

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12. We have meticulously perused the case records and the

evidences, both oral and documentary, let in by the parties and

also the judgment returned by the learned trial court.

13. To prove the case prosecution has examined as many

as 43 witnesses. PW -2 is the complainant, and as per her

complaint it is stated on 09.03.2017 at around 9 p.m. on attending

a phone call her daughter i.e. the victim went out of the house,

but after elapse of a considerable period when she did not return,

the complaint searched for her whereabout and on 10.03.2017 on

an information she could find dead body of her daughter in a

paddy field of Gantabill and accordingly on 10.03.2017 her

complaint was registered as FIR and subsequently upon

investigation, the appellant was arrested.

14. During examination in chief, PW -2, stated that on

09.03.2017 at night at about 9.00 p.m. Hritesh, the appellant

herein, Dipankar and Amrit called her daughter over phone and

upon attending the same she went out of her house and did not

return home and on next day morning her daughter was found

lying in the paddy field of one Nagendra Debbarma. Though her

statements in examination in chief are found to be exaggerated,

but during her cross examination, except mere denial and

suggestion, defence failed to contradict or discard her such

statement.

15. Further, PWs 3,5,7,8,9,10,16,17,18,23,36, in same line

in their deposition deposed that the place from where the dead

body was recovered was a paddy field at Gantabil.

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16. Further, as per the complainant, the incident occurred

in the night of 09.03.2017 and from the evidence of PW -17 and

PW18 it is found that on 09.03.2017 at night at about 1.00 to 1.30

am (night), when they were returning from a marriage ceremony,

they met the appellant and Amrit (juvenile in conflict)in a bridge at

Phaguabari on a Splendor bike and on the next day they came to

learn that about the incident. The evidence of PW-17 and 18 can

be taken into consideration since the alleged splendor bike was

seized by the police in course of investigation by preparing seizure

list (Exbt.53). From the testimony of PW- 17 and 18, the appellant

and co-accused Amrit were last seen at night at about 1-1.30 am

near a bridge in their area on a Splendor bike.

17. The body of deceased was found in a nearby paddy

field in the morning where both the appellant and co-accused,

Amrit were seen together. In cross-examination, the defence could

not disprove the said circumstance and during examination of the

appellant under Section 313 Cr.P.C. he simply denied but did not

adduce any defence witness in his behalf. Thus, adverse inference

can be drawn that the appellant alongwith other co-accused have

committed the alleged rape and murder.

18. Section 106 of the Evidence Act, 1872, (now

corresponding to Section 109 of the Bharatiya Sakshya Adhiniyam,

2023), comes into play only when the prosecution has successfully

established a prima facie case and a chain of evidence from which

a reasonable inference of guilt can be drawn against the

accused/appellant. It is designed to shift the burden of proof to

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the accused/appellant only for facts that are specifically within

their personal knowledge, which are difficult for the prosecution to

prove. It is a cardinal principle that Section 106 of the Evidence

Act shall apply and the onus to explain would shift on to the

appellant only after the prosecution succeeds in establishing the

facts from which a reasonable inference can be drawn regarding

existence of other facts which are within the knowledge of the

appellant. When the appellant fails to give proper explanation, the

Court can draw an adverse inference against the appellant. In

cases based on circumstantial evidence, the failure on the part of

appellant to provide a reasonable explanation, as required under

Section 106 of the Evidence Act , can complete the chain of

circumstantial evidence. Thus, from the entirety of the facts and

circumstances conjointly with the evidence of PW -17 and 18,

involvement of the appellant in the alleged crime cannot be ruled

out. Had the case been based on circumstantial evidence, the

presence of appellant with the other co -accused, the various

recoveries and the medical evidences, as had been broadly

classified fulfills the basis of conviction. From the disclosure

statement, re-creation of crime scene, pointing of memorandum,

leading to discovery of mobile from the house of co -accused,

Dipankar Debbarma and seizure of motorbike from accused Amrit

Debbarma with whom the appellant was seen by PWs 17 and 18

on the alleged date, proves involvement of the appellant in the

alleged crime. This piece of circumstantial evidence is quite

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specific and is of a crucial nature and undoubtedly connects the

appellant with the crime.

19. From the deposition of PW-2, as per defense, it seems

that PW-2 has made aggregated statements. It is trite law that if

the aggregated statements are inconsistent, contradict each other,

the same can be considered as unreliable, but such aggregated

statement may be admissible, depending on corroboration by

other specific evidence(s). An honest witness can be incorrect

about details, while the aggregation statement of the said witness

can show a broader truth to an incident.

20. Since from the ingredients of offences as were available

before the learned trial court from the materials produced, charge

was framed against the appellant and others specifically under

Section 302, 376-D and 34 of the IPC, but the appellant has totally

failed to present any evidence in his favour either in cross-

examination or in his examination under Section 313 Cr.P.C.,

challenging existence of common intention or commission of gang-

rape and murder.

21. The 313 statement is designed to allow the accused to

personally explain incriminating circumstances against him

subsequent to which the case will be decided based on the

evidence presented by the prosecution and the explanations given

by the accused in his 313 statement. A failure to offer a plausible

explanation for incriminating circumstances in the 313 statement

or to produce defence witnesses allows the court to draw

reasonable and logical inferences against the accused. In the case

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in hand, the defense has miserably failed to fulfill the following

requirement. From the 313 examination, it is found that the

learned trial court has put and disclosed all the facts and

circumstances in details to the appellant, to which he denied and

also denied to adduce any evidence on his behalf. The appellant

was examined under Section 313 Cr.P.C. and all the incriminating

circumstances were put to him. However, in his reply, he simply

denied the allegations by stating that he was innocent and had

been falsely implicated in the instant case. Even, he did not choose

to lead any evidence in his defense. The appellant failed to furnish

any explanation whatsoever in relation to the offence, when he

was examined under Section 313 Cr.P.C. and hence the learned

trial Court was to draw an inference, including an adverse

inference, in accordance with law. Thus, submission of learned

counsel appearing on behalf of the appellant that incriminating

documents which were not put to appellant in his statement

recorded under Section 313 Cr.PC. is rejected being devoid of any

force as this court is of the opinion that learned trial Court has put

all incriminating questions to appellant in the present case.

22. There is no evidence on record in order to prove that

disclosure statement of co -accused and the appellant was

procured under pressure. Disclosure statement of appellant and

co-accused was recorded in accordance with of law and proved by

way of testimony of marginal witness. A disclosure statement must

be made while the accused is in police custody to be admissible

under Section 27 of the Indian Evidence Act and the statement

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must directly lead to the discovery of a material object or fact. The

statement which is admissible under Section 27 is that the

information shall be leading to discovery Thus, what is admissible

being the information, the same has to be proved by discovery, in

other words, the exact information given by the accused while in

custody which led to recovery of the articles has to be proved. It

is, therefore, necessary for the benefit of both the accused and

prosecution that information given should be recorded and proved.

The Hon’ble apex Court in Raja Khan vs. State of Chhattisgarh ,

reported in (2025) 3 SCC 314 , has dealt with the similar where

the exact information given by the accused while in custody which

led to recovery of the article has to be proved and while dealing

with Section 25, 26 and 27 of the Evidence Act opined that

statement whether confessional or not, held, is allowed to be given

in evidence but that portion only which distinctl y relates to

discovery of the fact is admissible and the discovery of fact,

includes the object found, the place from which it is produced and

the knowledge of the appellant as to its existence. In paras 28,

29, 30 and 31, the Hon’ble apex Court has held as under:

“28. Sections 25 and 26 of the Evidence Act stipulate that confession made to a police officer is not admissible.

However, Section 27 is an exception to Sections 25 and 26 and serves as a proviso to both these sections [Delhi

Administration vs. Bal Krishan & Ors., (1972) 4 SCC 659].

29. This Court is of the view that Section 27 lifts the ban, though partially, to the admissibility of confessions.

The removal of the ban is not of such an extent so as to absolutely undo the object of Section 26. As such the

statement whether confessional or not is allowed to be given in evidence but that portion only which

distinctly relates to discovery of the fact is admissible. A discovery of a fact includes the object found, the

place from which it is produced and the knowledge of the Appellant-accused as to its existence (Udai Bhan Vs.

State of Uttar Pradesh, AIR 1962 SC 1116).

30. The essential ingredients of Section 27 of the Evidence Act are three fold:

(i)The information given by the accused must led to the discovery of the fact which is the direct outcome of

such information.

(ii)Only such portion of the information given as is distinctly connected with the said recovery is admissible

against the accused.

(iii) The discovery of the facts must relate to the commission of such offence.

31. The question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused was

considered by this Court in Bodhraj Alias Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45, wherein

it has been held as under: (SCCpp.58-59, para 18)

“18… Section 27 of the Indian Evidence Act, 1872 (in short “Evidence Act”) is by way of proviso to Sections

25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the

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fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this

Court in Delhi Admn v. Balakrishan [(1972) 4 SCC 659] and Mohd. Inayatullah v. State of Maharashtra

*(1976) 1 SCC 828+. The words “so much of such information” as relates distinctly to the fact thereby

discovered, are very important and the whole force of the section concentrates on them. Clearly the extent

of the information admissible must depend on the exact nature of the fact discovered to which such

information is required to relate. The ban as imposed by the preceding sections was presumably inspired by

the fear of the Legislature that a person under police influence might be induced to confess by the exercise

of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information

relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of

the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the

provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the

section could not in consequence of the preceding sections, be admitted in evidence. It would appear that

under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the

information must come from any accused in custody of the police. The requirement of police custody is

productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in

cases where a person, who is subsequently taken in to custody and becomes an accused, after committing a

crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances

of the crime which lead to the discovery of the dead body, weapon or any other material fact, in

consequence of the information thus received from him. This information which is otherwise admissible

becomes inadmissible under Section 27 if the information did not come from a person in the custody of a

police officer or did come from a person not in the custody of a police officer. The statement which is

admissible under Section 27 is the one which is the information leading to discovery. Thus, what is

admissible being the information, the same has to be proved and not the opinion formed on it by the police

officer. In other words, the exact information given by the accused while in custody which led to recovery of

the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution

that information given should be recorded and proved and if not so recorded, the exact information must

be adduced through evidence. 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 as

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. It is now well

settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council

in Palukuri Kotayya v. Emperor [AIR (1947) PC 67], is the most quoted authority of supporting the

interpretation that the “fact discovered” envisaged in the section embraces the place from which the object

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

effect. [See State of Maharashtra v. Dam Gopinath Shirde and Ors, (2000) 6 SCC 269]. No doubt, the

information permitted to be admitted in evidence is confined to that portion of the information which

“distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so

truncated as to make it insensible or incomprehensible. The extent of information admitted should be

consistent with understandability. Mere statement that the accused led the police and the witnesses to the

place where he had concealed the articles is not indicative of the information given.

(emphasis supplied) “

In the case in hand, it is found that PW-9 and PW-10, in their

examination in chief stated that on 15.03.2017 they were called

by police of Kalyanpur PS and at about 12/12.30 p.m. when they

reached at the PS, they alongwith the appellant, Ritesh and

Dipankar were taken to a place where Ritesh and Dipankar gave

statement that after committing rape they murdered the victim

[name withheld] and they also demonstrated in that regard and

those statements were recorded by darogababu in writing. PW -9

deposed that he had videographed the entire episode and after

recording the statement police obtained his signature and his said

deposition was corroborated by PW -10. From the disclosure

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statement(Exbt 6 to 6/4 and 8 to 8/4), it is evident that the co-

accused and the appellant had voluntarily and without any threat,

fear or coercion had disclosed the entire fact which was reduced

into writing by the investigating officer and in the presence and

assistance of the accused and appellant, scene of crime was

constructed and leading to discovery took place and subsequently

the investigating officer prepared the pointing of memorandum

(Exbt.7 to 7.4 and 9/1) in presence of PW-9 and PW-10 and PW-

43(Executive Magistrate).

23. During examination in chief, PW -43 has stated that

both the accused persons, Ritesh Debbarma and Dipankar

Debbarma, under the custody of I.O. at Kalyanpur PS gave their

respective disclosure statement and both of them re -created the

entire crime scene. PW-43 has also identified his signatures on the

exhibited documents. Such immediacy between the disclosure and

discovery adds to the credibility of the prosecution version and

rules out the possibility of fabrication of the case. It is significant

that the discoveries are not of trivial. This goes to the very root of

the case, as the disclosure and discovery coupled with the re-

creation of crime scene at the instance of the appellant and co-

accused, forms a chain which prima facie points to the guilt of the

appellant.

24. From the disclosure statement of accused Dipankar

Debbarma it is evident that on 09.03.2017 Ritesh Debbarma, the

appellant, alongwith Dipankar Debbarma and other drank alcohol

and made call to the victim and thereafter they went to marriage

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ceremony Sonachari by riding motor bike of Amrit Debbarma,

juvenile in conflict, and after return they again called the victim on

her mobile and on her arrival Ritesh and the victim left them and

after long wait they met with Ritesh and the victim on the pitch

road and thereafter at about 10.00 p.m. riding on motorcycle they

went to open paddy field at Ganthabill where he and Amrit

Debbarma raped her repeatedly and murdered the victim by

throttling. He also narrated that at about 11.30 p.m. night after

killing the victim he took the mobile and sim card of the victim to

his house and thrown the sim card of victim into kachcha latrine.

He also has re-created the crime scene and led to discovery. The

disclosure statement of Ritesh Debbarma, the appellant, is in the

same tune to that of other accused Dipankar Debbarma. Ritesh

Debbarma only has further stated that he had sexual relation with

the victim prior to meeting with the co -accused and Amrit

Debbarma on the pitch road. He has also recreated the crime

scene and led to discovery. Thus, it can safely be presumed that

the appellant is involved in the alleged commission of crime.

25. It is evident that anal swab was seized by the police

under a seizure list and PW -1, PW-4 and PW-37 put their

signatures on the said seizure list dated 10.03.2017 marked as

Exbt.1 and the same was collected from the body of the deceased

during post mortem examination, and the same was confirmed by

PW-27 and PW-38. This court has meticulously gone through the

observations made by the learned trial court in the impugned

judgment while dealing with the forensic and postmortem report.

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Needless to say the manner the learned trial court made its

observation in Para 14 of the judgment, while dealing with the

medical evidence, is appropriate depending upon facts and

circumstances of the case.

26. For better appreciation, para 14 of the judgment is

reproduced here-in-below:

“14. Usually, crime like gang-rape and murder are committed in an isolated place.

Hardly, eye-witnesses are available in such Cases and as such, forensic and medical

reports are very important tools for the prosecution to prove its Case. Hence, let us

now analyze the forensic and postmortem reports.

PW21, Dr. Subhankar Nath, is the Dy. Director, DNA Typing Division at the State

Forensic Science laboratory, Narasinghgarh, (in short SFSL), who deposed that on

28.03.2017, his DNA Division received 10 exhibit pieces, marked as A6, A7, A8, A9(i),

A9(ii), A9(iii), C1, B4, C4 and D4 from the Biology/Serology Division. PW21 deposed

that he examined all the 10 exhibits within a period from 01.04.2017 to 11.04.2017

and submitted an inter divisional examination report to the Biology/serology

division. According to PW21, the 10 exhibits are as follows:

1) Exhibit A6-A piece of cotton said to be vaginal swab of the deceased.

2) Exhibit A7 piece of blood stain gauze said to be the blood sample of the

deceased.

3) Exhibit A8 - piece of cotton said to be the anal swab of the deceased.

4) Exhibit A9(i) - Deep blue colour cloth piece said to be the piece of cloth (deep

blue colour top) of wearing apparel of the deceased.

5) Exhibit A9(ii) white colour cloth piece (sky blue-white-green-black colour

printed long pant) of wearing apparel of deceased.

6) Exhibit A9(iii) - white colour cloth piece said to be the piece of cloth (white

colour bra) of wearing apparel of deceased.

7) Exhibit C1 Old white colour cloth piece said to be the piece of cloth (grey

colour cotton Jeans long pant) of wearing apparel of Accused Amrit Debbarma.

8) Exhibit B4- one yellow paper envelope levelled with case reference and Exbt.

mark B4, blood sample in gauze cloth of Dipankar Debbarma, 26 years/M with

address, one signature of Dr. Rashmi Debbarma, one stamp impression of

emergency medical officer, Kalyanpur CHC, Khowai, inside of which, blood stain

gauze said to be the blood sample of accused Dipankar Debbarma.

9) Exhibit C4 one yellow paper envelope levelled with case reference and exhibit

mark C4, blood sample in gauze cloth of Amrit Debbarma, 19 years/M with

address & one signature of Dr. Rashmi Debbarma without stamp impression,

inside of which, blood stain gauze said to be the blood sample of accused Amrit

Debbarma.

10) Exhibit D4 one yellow paper envelope levelled with case reference and

exhibit mark D4, blood sample in gauze cloth of Ritesh Debbarma, 24 years/M

with address & one signature of Dr. Rashmi Debbarma with one stamp

Page 18

impression of emergency Medical officer, Kalyanpur CHC, Khowai, inside of

which, blood stain gauze said to be the blood sample of accused Ritesh

Debbarma.

PW21 further elaborated the results of his examination, which are as follows:

A) The exhibits marked A7, A9(i), A9(ii), A9(iii), C1, B4, C4 and D4 were examined

in various methods for detection of blood.

B) The exhibit mark A6, A8, A9(i), A9(ii), and A9(iii) were examined in various

methods for detection of seminal stain/spermatozoa of human origin.

RESULT:

I) Blood stain was detected in the exhibits marked as A7, A9 (i), A9(ii),

A9(iii), C1, B4, C4 and D4.

II) Seminal stain/spermatozoa of human origin was detected in the

exhibits marked A6, A8, A9(i) and A9(ii) &

III) Seminal stain spermatozoa of human origin was not detected in the

exhibit marked A9(iii).

The PW21 further deposed that semen stain cotton piece of exhibit A6 (source:

vaginal swab of deceased); blood stain gauze piece of Exhibit A7 (source: blood

sample of the deceased); semen stain of cotton piece of Exhibit A8 (source: Anal

Swab of the deceased); a portion of blood stain cloth piece of Exhibit A9(i) (source:

piece of cloth {deep blue colour top) of wearing apparel of the deceased); a portion

of semen stain cloth piece of Exhibit A9(i) (source: piece of cloth (deep blue colour

top} of wearing apparel of the deceased); a portion of blood stain cloth piece of

Exhibit A9(ii) (source: piece of cloth (sky-blue-white-green-black colour printed long

pant} of wearing apparel of the deceased); a portion of semen stain cloth piece of

exhibit A9(ii) (source: piece of cloth (sky-blue-white-green-black colour printed long

pant} of wearing apparel of the deceased; blood stain cloth piece of exhibit A9(iii)

(source: piece of cloth (white colour bra) of wearing apparel of the deceased: blood

stain cloth piece of exhibit C1 (source: piece of cloth (grey cloour cotton jeans long

pant) of wearing apparel of Amrit Debbarma; a portion of blood stain gauze of

exhibit B4 (source: blood sample of Dipankar Debbarma), a portion of blood stain

gauge of exhibit C4 (source: blood sample of Amrit Debbarma) & a portion of blood

stain gauze of exhibit D4 (source: blood sample of Ritesh Debbarma) were subjected

for DNA isolation by organic extraction method. He stated that the DNA recovered

from the above mentioned exhibits were subjected to various methods and the

resultant allelic distribution for the studied loci in different exhibits is shown in the

table of annexure A of the report.

After applying the above methods, the following observations were made by

PW21, such as -

1) Mixed male genetic profile was generated for exhibit A6 (vaginal swab of

deceased),

2) Female genetic profile was generated for exhibit A7 (blood sample of the

deceased),

3) Mixed male genetic profile generated for exhibit A8 (anal swab of the

deceased),

4) Female genetic profile was generated for exhibit A9(i) (piece of cloth {deep

blue colour top} of wearing apparel of the deceased),

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5) Mixed male genetic profile was generated for exhibit A9(i) (piece of cloth

(deep blue colour top of wearing apparel of the deceased),

6) Mixed male genetic profile was generated for exhibit A9(ii) (piece of cloth

(sky-blue-white-green-black colour printed long pant) of wearing apparel of

deceased),

7) Female genetic profile was generated for exhibit A9(ii) (piece of cloth (sky-

blue-white-green-black colour printed long pant) of wearing apparel of

deceased),

8) Female genetic profile was generated for exhibit A9(iii) (piece of cloth {white

colour bra) of wearing apparel of the deceased),

9) Male genetic profile was generated for exhibit C1 (cloth piece (grey colour

cotton Jeans long pant} of wearing apparel of Amrti Debbarma),

10) Male genetic profile was generated for exhibit B4 (blood sample of Dipankar

Debbarma),

11) Male genetic profile was generated for exhibit C4 (blood sample of Amrit

Debbarma),

12) Male genetic profile was generated for exhibit D4 (blood sample of Ritesh

Debbarma),

13) The alleles of the amplified loci of DNA profile of exhibit A6 (vaginal swab of

the deceased) matches with the alleles of the amplified loci of DNA profile of

exhibit B4 (blood sample of Dipankar Debbarma) and exhibit C4 (blood sample of

Amrit Debbarma),

14) The alleles of the amplified loci of DNA profile of exhibit A8 (anal swab of

deceased) matches with the alleles of the amplified loci of DNA profile of exhibit

C4 (blood sample of Amrit Debbarma) and exhibit D4 (blood sample of Ritesh

Debbarma),

15) The alleles of the amplified loci of DNA profile of exhibit A9(i) (piece of cloth

(deep blue colour top) of wearing apparel of deceased) matches with the alleles

of the amplified loci of DNA profile of exhibit B4 (blood sample of Dipankar

Debbarma) and exhibit C4 (blood sample of Amrit Debbarma),

16) The alleles of the amplified loci of DNA profile of exhibit A9(i) (piece of cloth

(deep blue colour top) of wearing apparel of the deceased) matches with the

alleles of the amplified loci of DNA profile of exhibit A7 (blood sample of the

deceased).

17) The alleles of the amplified loci of DNA profile of exhibit A9(ii) (piece of cloth

{sky blue-white-green-black colour printed long pant} of wearing apparel of

deceased) matches with the alleles of the amplified loci of DNA profile of exhibit

B4 (blood sample of Dipankar Debbarma) and exhibit C4 (blood sample of Amrit

Debbarma),

18) The alleles of the amplified loci of DNA profile of exhibit A9(ii) (piece of cloth

(sky blue-white-green-black colour printed long pant} of wearing apparel of

deceased) matches with the alleles of the amplified loci of DNA profile of exhibit

A7 (blood sample of the deceased),

19) The alleles of the amplified loci of DNA profile of exhibit A9(iii) (piece of cloth

{white colour bra} of wearing apparel of the deceased) matches with the alleles

of the amplified loci of DNA profile of exhibit A7 (blood sample of the deceased),

Page 20

20) The alleles of the amplified loci of DNA profile of exhibit C1 (cloth piece said

to be {grey colour cotton Jeans long pant) of wearing apparel of Amrit

Debbarma) matches with the alleles of the amplified loci of DNA profile of

exhibit C4 (blood sample of Amrit Debbarma).

On the basis of the above examination, results and findings, PW21 placed his

conclusion as follows:

1) the semen stain detected in exhibit A6 (vaginal swab of deceased) originated

from two different sources, i.e. exhibit B4 (blood sample of accused Dipankar

Debbarma) and exhibit C4 (blood sample of accused Amrit Debbarma),

2) The semen stain detected in exhibit A8 (anal swab of deceased) originated

from two different sources, i.e. exhibit C4 (blood sample of accused Amrit

Debbarma) and exhibit D4 (blood sample of accused Ritesh Debbarma),

3) The semen stain detected in exhibit A9(i) (piece of cloth of wearing apparel of

deceased) originated from two different sources, i.e. exhibit B4 (blood sample of

accused Dipankar Debbarma) and exhibit C4 (blood sample of accused Amrit

Debbarma),

4) The blood stain detected in exhibit A9(i) (wearing apparel of deceased)

originated from single source exhibit A7, i.e. blood sample of deceased.

5) The semen stain detected in exhibit A9(ii) (wearing apparel of deceased)

originated from two sources, i.e. exhibit B4 (blood sample of accused Dipankar

Debbarma) and exhibit C4 (blood sample of accused Amrit Debbarma),

6) The blood stain detected in exhibit A9(ii) (wearing apparel of deceased)

originated from single source exhibit A7 (blood sample of deceased),

7) The blood stain detected in exhibit A9(iii) (wearing apparel of deceased)

originated from single source exhibit A7 (blood sample of deceased),

8) The blood stain detected in exhibit C1 (wearing apparel of accused Amrit

Debbarma) originated from single source exhibit C4 (blood sample of accused

Amrit Debbarma).

PW21 further identified his report in 13 sheets (including the allelic distribution

table), which is marked from Exbt-12/1 to Exbt-12/13 and all his signatures from

Exbt-12A to Exbt-12M.

PW21 was also cross-examined by Ld. Counsels for the accused persons, during

he only denied the suggestion that his report was prepared mechanically.

The forensic expert (PW21) gave a very comprehensive report and from the said

report, it is established that DNA of semen stain of deceased victim was matching

with the DNA of blood samples of the accused person namely, Dipankar Debbarma,

Ritesh Debbarma and another. Such a matching can only be the result of sexual

intercourse/activity done by the accused persons with the victim. These results are

scientific evidence proving the involvement of the accused persons in the gang-rape

and murder of the victim. The forensic report was brought to the knowledge of the

accused persons, but they did not furnish any explanation in their statement at the

time of their examination U/S-313 of the Cr.P.C. During cross-examination of PW21,

the accused side put only one suggestion to him that PW21 submitted his report

mechanically, which he denied.

Ld. Counsel for the accused persons arguing much alleging improper collection,

sampling, labeling, etc. of the samples in this Case, specially in DNA analysis, but

there is no proof that DNA evidence was not properly collected, packaged,

Page 21

preserved, examined and documented. Ld. PP also submitted in his argument that

there is no statutory provision which prescribes any particular mode for such

packing, etc. He further submitted that when the DNA test report conclusively

proves the involvement of the accused persons, even if the oral evidence is weak,

conviction can be recorded.

PW22, Smt. Monika Debbarma, in her deposition stated that on 21.03.2017, she

was posted as Sr. Scientific Officer-cum-ACE at the State Forensic Science

Laboratory, Narsinghar and on that day a sealed parcel was received by her office in

connection with Kalyanpur PS Case No.06 of 2017 dated 10.03.2017 with the

impression of SDPO, Teliamura and inside, there were five exhibits containing liver

with gall bladder, stomach and small intestine, kidney and urine, which were

collected from the body of the deceased victim at the time of conducting her

postmortem examination. PW22 also added that on examination, ethyl alcohol was

detected in the viscera sample of the victim and thereafter she prepared her report

(Ext.13/1 and 13/2) which bears her signatures (Ext. 13A and 13B). From the

aforementioned forensic report, intake of alcohol by the victim, is very much clear.

PW42, Dr. Reshmi Debbarma in her deposition submitted that on 14.03.2017 she

was posted as Medical Officer at Kalyanpur CHC and on that day a per requisition of

Police, she conducted potency test of the accused Dipankar Debbarma, aged about

26 years and also Ritesh Debbarma, aged about 24 years. On examination, she

stated to have found their genital organs to be normal and potent and that they

were capable of sexual intercourse. She prepared her report in this regard (Exbt.54

and Exbt.55) with her signatures (Exbt.54/1 and Exbt.55/1).

PW27, is Dr. Sandip Chakraborty and PW38, Dr. Sutapa Das, who conducted

postmortem examination on the body of the deceased victim, stated in their

deposition that on the basis of their examination and the SFSL report, they gave

their final report (Exbt.17) that there are signs suggestive of forceful vaginal and anal

intercourse upon the victim under the influence of ethyl alcohol and cause of her

death was due to asphyxia, as a result of manual strangulation, which is homicidal in

nature. PW27 and PW38, who were a team along with another to conduct

postmortem examination on the body of the victim, gave the same version. They

unequivocally opined that cause of death was due to asphyxia as a result of manual

strangulation, which is homicidal in nature. Defence side could not rebut the

postmortem report (Ext.17).

From the aforementioned opinion of both the doctors, there is no doubt that the

victim had been forcefully gang-raped and there-after suffered homicidal death due

to manual strangulation. The forensic report (Exbt. 12/1 to Exbt.12/13) coupled with

the medical report (Exbt.17) given by PW27, Dr. Sandip Chakraborty & PW38, Dr.

Sutapa Das, makes it clear that accused persons namely, Dipankar Debbarma and

Ritesh Debbarma along with another are the persons, who were responsible for the

gang-rape and murder of the victim.

27. The blood sample of appellant , co-accused and the

deceased in a sealed condition reached the Forensic Science

Laboratory. The DNA report dated 11.04.2017 contains a finding

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that sealed packets were received on 28.03.2017, and all the

sealed packets were intact. This report dated 11.04.2017 is

admissible in evidence as per Section 293 of Cr.P.C. Thus, right

from taking the blood sample of appellant, co-accused, deceased,

the swab of deceased till its receipt in the Forensic Science

Laboratory, the purity of the process is beyond any pale of doubt.

As discussed above, the chain of events/circumstances are duly

established by the prosecution before the Court below. Further, as

per observation of PW-21, who had conducted the DNA test, the

semen stain detected in exhibit A8 i.e. anal swab of deceased has

originated from two different sources, i.e. exhibit C4 (blood sample

of accused Amrit Debbarma) and exhibit D4 (blood sample of

accused Ritesh Debbarma). Moreso, as per report of PW-21, DNA

of semen stain of deceased victim was matching with the DNA of

blood samples of the accused person namely, Dipankar Debbarma,

the appellant, Ritesh Debbarma and another. Such a matching can

only be the result of sexual intercourse/activity done by the

accused persons with the victim. These results are scientific

evidence proving the involvement of the accused persons in the

gang-rape and murder of the victim. Further, blood sample and

the swab was indeed taken, sealed and was sent to FSL laboratory

with quite promptitude. The DNA is a scientific report and

conviction can be based on said DNA report.

28. At this juncture, this court is to take into consideration

the argument advanced by learned counsel for the appellant that

PW38 only collected scalp hair, vaginal swap, stomach etc.

Page 23

Learned counsel stressed upon the word etc. and contended that

she did not collect the anal swab. On to this, this court is to

observe that in criminal case, when a doctor or forensic expert

lists specific evidence items viz. blood sample, clothing, bullet and

follows them with "etc." (short for et cetera), it means "and

other similar, related items likely refers to other materials

collected, such as swabs or biological samples. This abbreviation

indicates that the list is not exhaustive and that additional, similar

items were collected and sent for analysis to the forensic

laboratory. Thus, at this stage, this court cannot accept the said

argument as advanced by learned counsel.

29. It is not in dispute that the death of the deceased is

homicidal in nature. Once the death is homicidal in nature, the

burden lies on the prosecution to prove that the death was due to

the act comm itted by the accused with the intention and

knowledge that this act would cause death of the deceased which

would amount to offence of murder. In the present case there is

no direct evidence or any eye witness to the said incident in

question, but the case is based on circumstantial evidence.

Therefore, where the case is based on circumstantial evidence, the

circumstances from which the conclusion of guilt is to be drawn

should be fully established and shall be consistent. Therefore, the

circumstances should be of a conclusive nature. There must be a

chain of evidence .Keeping in mind this cardinal principle, it will

therefore have to be seen from the evidence that has come on

record, whether the circumstances from which the conclusion of

Page 24

guilt is to be drawn are fully established and all the facts so

established are consistent. Considering the evidence of PW 17 and

PW-18 and recovery of the dead body of the deceased in the next

day morning from a nearby paddy, this court came to a conclusion

that the circumstance of last seen together has been cogently

proved by the prosecution. Further, the disclosure statement of

co-accused and the appellant, being of corroborative nature and

subsequently re-creation of crime scene by the co-accused and the

appellant and thereby leading to discovery proves their

commission of offence with a motive to rape and kill the victim.

Consecutively, the medical evidence viz. SFL report and DNA

report, matching of anal swab, blood sample, amplify the

prosecution case leaving no ro om to have any doubt on

involvement of the appellant in the alleged commission of crime or

rape and murder. From the above perspective, the citations, as

relied on by learned counsel for the appellant, are not applicable at

this stage.

30. As per the disclosure statement of the appellant (Ritesh

Debbarma), it is admitted that he had sexual intercourse with the

deceased and later his statement is vague. However, he has stated

as under:

“I Sri Ritesh Debbarma 24 years S/O Sri Shamburam Debbarma Birchana Thakur Para, PS:

Kalyanpur voluntarily disclose without any fear and any pressure. I state that I read upto Class-X

in bengali Medium School at Kunjaban High School. I am unmarried youth. Self state that on

19/03/2017 at about 05:00 PM in front of my house at Birchandra Thakur Para self met Sri

Hideng Debbarma, Sri Amrit Debbarma both of Dulalia and Dipankar Debbarma of Ganthabill.

After that at around 06:00 PM together we drank alcohol at my house. That time I and my friend

Dipankar Debbarma made frequent call to Bithika Debbarma at her Mobile No.8732803890 from

my friend Dipankar Debbarma mobile No. 9402386814. Thereafter, at around 07:30 PM I and all

my friends went in the marriage ceremony at Sonachari in the house of Aku Debbarma S/O Lt

Takhirai Debbarma with a motor bike of Sri Amrit Debbarma of Dulalia being driven by Dipankar

Debbarma and had dinner there. Thereafter, at 8:30 P.M. together went at Baramaidan Bazar

near Church and had two bottles of beer, money for the beer was paid by Dipankar Debbarma.

After consuming beer left for the house of Bithika Debbarma. At 09:00 PM. on arrival near the

Page 25

house of Bithika Debbarma at Baramaidan we called her on her mobile phone to come outside

their dwelling hut. Thereafter, I with Bithika Debbarma left my friends went ourselves behind the

Tower at Baramaidan rubber garden. There I had sexual relationship with Bithika Debbarma.

After sexual relationship I and Bithika Debbarma proceed on the pitch road of Baramaidan-

Kalyanpur road. Thereafter, self along with two friend Dipankar Debbarma, Sri Amrit Debbarma

and Bithika Debbarma went in the open Paddy field at Ganthabill. Self also state that self got

down before TSR camp from the Motor Bike and from the shop self bought two pieces of flakes

and cold drink with cost of Rs 20/-(Rupees twenty) and my friends Dipankar Debbarma, Sri Amrit

Debbarma and Bithika Debbarma going in the open Paddy field of Ganthabill. After buying flakes

and cold drink self went at Ganthabill and met them. Thereafter, self with the motor Bike waiting

them at Fakwa Bari pucca bridge. That time self met Tabal Debbarma and other and asked why I

was at that night time. After long wait Amrit Debbarma came near Fakwa bari bridge and

together with his motor bike left the spot at around 11:30 hrs. I also state that infront of the shop

of Thua Debbarma self taken my bicycle and Sri Amrit Debbama washed his hand. Thereafter,

went to my home. If I am taken to the place will be able to show the places of crime scene”.

31. As per the disclosure statement of c o-accused,

Dipankar Debbarma, it is admitted that they have committed the

crime. The disclosure statement of co-accused is hereunder:

“I Sri Dipankar Debbarma, age 26 years S/O Sri Sumendra Debarma @Padrai of Ganthabill, West

Kunjaban, PS: Kalyanpur voluntarily disclose without any fear and any pressure. I state that I read

upto upto Cl-V in Bengali Medium School at Baramaidan H.S School. I have got married with Smt

Rehena Debbarma in the year 2010 and have one daughter namely Miss Liza Debbarma age 4

years. I state that self recognized upon Bithika Debbarma D/O Sri Purna Mohan Debbarma of

Baramaidan Bazar, PS:Kalyanpur. I state that on 09/03/2017 at about 05:00 PM in front of the

house of Sri Ritesh Debbarma at Birchandra Thakur Para self met with Sri Ritesh Debbarma, Sri

Hideng Debbarma, Sri Amrit Debbarma of Dulalia. At 06:00 PM we drank alcohol together in the

house of Sri Ritesh Debbarma. That time I and my friend Sri Ritesh Debbarma made frequent call

to Bithika Debbarma, my cousin sister, at her Mobile No.8732803890 from my mobile No.

9402386814. Thereafter, at around 07:30 PM I and all my friends went in the marriage ceremony

at Sonachari in the house of Aku Debbarma S/O- Lt Takhirai Debbarma by riding a motor Bike of

Sri Amrit Debbarma of Dulalia and had dinner there. Thereafter, at around 08:30 PM together at

Baramaidan Bazar near Church and we had two bottles of beer, money for the beer was paid by

me. After consuming beer at around 09:30 PM night we left for the house of Bithika Debbarma.

On arrival near the house of Bithika Debbarma at Baramaidan called her on her mobile phone to

came outside their dwelling hut. Thereafter, Ritesh Debbarma with Bithika Debbarma left us.

That time my friend Amrit Debbarma and myself search upon Ritesh Debbarma and Bithika

Debbarma. After long wait Ritesh Debbarma and Bithika Debbarma approach to us on the pitch

road of Kalyanpur- Baramaidan road. Thereafter, at around 10:00 PM riding on the motor cycle

along with my two friend namely Sri Amrit Debbarma, Ritesh Debbarma and Bithika Debbarma

we went in the open Paddy field at Ganthabill. In the open Paddy field Sri Amrit Debbarma first

rape on Bithika Debbarma thereafter self repeatedly rape and together with Amrit Debbarma

and murder Bithika Debbarma by throttling. Myself press on the neck of Bithika Debbarma and

Amrit Debbarma closed her mouth. Thereafter, I found my mobile is missing from my pocket and

lastly self made call to my number by Bithika's Mobile and found my started ringing. At around

11:30 PM night after killing Bithika Debbarma self took the mobile set and sim card in my house

at Ganthabill. I also state that I hide Bithika Debbarma mobile in my dwelling hut wrapped with

cloth. I also state that I thrown one sim in the streams and other one in kacha latrine tank. If I am

taken to the place, I will be able to show the places of sim card, Bithika mobile set and other

places of crime scene.”

32. It is to be noted here that if the appellant herein is

having intimacy relation with the deceased then how he can allow

the co-accused to take her (the victim) away and commit the said

heinous crime. This clearly makes this Court to draw an adverse

inference against the conduct of the appellant.

Page 26

33. The disclosure statement of the co-accused, Dipankar

Debbarma and the appellant, Ritesh Debbarma, discloses that they

have made phone call to the victim on the alleged date and time,

receiving which the victim came out of her house subsequent to

which she was raped and murdered. Thus, it can safely be said

that both the accused persons with an intention to commit the

crime had called the victim and thereby the appellant and co -

accused, Dipankar alongwith another had committed the crime.

Therefore, where participation of the appellant in a crime is proved

and the common inte ntion is also established, Section 34 IPC

would come into play.

34. A reading of Section 34 of the IPC reveals that when a

criminal act is done by several persons with a common intention

each of the persons is liable for that act in the same manner as if

it were done by him alone. As reference, Section 34 of the IPC, is

reproduced hereunder:

“34. Acts done by several persons in furtherance of common intention.—

When a criminal act is done by several persons in furtherance of the common intention

of all, each of such persons is liable for that act in the same manner as if it were done by him

alone.”

The Hon’ble apex Court in Krishnamurthy alias Gunodu

and Ors. vs. State of Karnataka , reported in (2022) 7 SCC

521 (para 26), in dealing with Section 34 of IPC, held as under:

“26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on

the principle of joint liability. For Section 34 to apply there should be common intention between

the co-perpetrators, which means that there should be community of purpose and common design

or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any

discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should

be prearranged or hatched for a considerable time before the criminal act is performed. Common

intention can be formed just a minute before the actual act happens. Common intention is

necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence

normally will not be available and in most cases, whether or not there exists a common intention

has to be determined by drawing inference from the facts proved. This requires an inquiry into the

antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence.

The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted,

Page 27

the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the

occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at

a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that

Section 34 IPC comes into operation against the co-perpetrators because they have not committed

the principal or main act, which is undertaken/performed or is attributed to the main culprit or

perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not

necessary as the said perpetrator is himself individually liable for having caused the injury/offence.

A person is liable for his own acts. Section 34 or the principle of common intention is invoked to

implicate and fasten joint liability on other co-participants.”

35. Having regard to the facts and circumstances and

considering the relevant facts that the victim was subjected to

rape and murder at the hands of the appellant, therefore,

sentence of life imprisonment for remainder of natural life imposed

upon on the appellant by the trial Court is just, proper, and

commensurate with the gravity of the offence committed by him.

36. In the result, after having critically appreciated the

entire evidences, both oral and documentary on record, as well as

the judgment of the Court below in great detail, we are in

agreement with the reasons recorded by the trial court while

awarding sentence to the accused-appellant.

37. In our considered view, the judgment and order passed

by the Court below does not suffer from any error whatsoever.

38. Accordingly, the judgment of conviction and sentence

dated 10.07.2024 passed in S.T.(T -1)26 of 2018 is affirmed.

Consequently, the appeal stands dismissed. Send down the LCRs.

S.DATTA PURKAYASTHA,J DR.T. AMARNATH GOUD,J