HIGH COURT OF TRIPURA

AGARTALA

CRL A (J) 51 OF 2024

Sri Suman Das,

S/o Sri Gopal Das,

Resident of Murabari near SDM’s Office,

P.S. Bishalgarh, District-Sepahijala, Tripura.

….Convict-Appellant.

Versus

The State of Tripura

….Respondent.

Present:

For the Appellant

:

Mr. Ratan Datta, Advocate.

Mr. Sourav Debnath, Advocate.

Mr. A.Baidya, Advocate.

Mr. D. Debroy, Advocate.

For the Respondent

Date of hearing

Date of delivery of

judgment & Order

Whether fit for reporting

:

:

:

:

Mr. Raju Datta, P.P.

18.03.2026

31.03.2026

Yes No



HON’BLE JUSTICE DR. T. AMARNATH GOUD

HON’BLE MR.JUSTICE S. DATTA PURKAYASTHA

JUDGMENT & ORDER

[ S. Datta Purkayastha, J]

The judgment and sentence dated 02.09.2023, passed by the

learned Additional Sessions Judge, Bishalgarh, Sepahijala in Case No.

ST(Type-1) 15 of 2020 are under challenge in this appeal whereby the

learned Trial Court convicted the appellant, Suman Das and another

Chandan Das under Sections 302/201 of Indian Penal Code (for short- IPC)

read with Section 34 of the same, and sentenced them to suffer rigorous

imprisonment for life and to pay a fine of Rs.10,000/- (Rupees ten thousand)

each only, and in default of payment of fined, to suffer further R.I. for 1(one)

year under Section 302 of IPC, and also to suffer R.I. for 3(three) years

along with a fine of Rs.5000/- each only, and in default of fine, to suffer

2

further R.I. for 6(six) months for commission of offence punishable under

Section 201 of IPC.

2. The daughter-in-law (wife of the son) of the deceased Krishna

Das lodged the FIR on 27.04.2020 that the deceased, a widow lady would

stay alone in her house and she would work as a Cleaner at Bishalgarh

Municipal Council Office. For a few days i.e. from 23.04.2020 she did not

attend the office. On the previous day of 23.04.2020 she also made a

complaint to the Councillor of Ward No.15 against the convicts alleging that

they would disturb her during the night and used to kick the doors and

windows of her room using abusive languages. Out of suspicion concerning

that incident, a search was carried out on 27.04.2020 to find out the

deceased and when pressure was given to the said two convicts, they

admitted that on 23.04.2020, at around 8:00 pm, in the night they first tide

her neck with a belt, then raped her and later on killed her. They also stated

that afterwards they had left the dead body in a well. Thereafter, both the

convicts were tied up with a rope by the local people and police was

informed. Subsequently, they identified the place where the dead body was

thrown and police recovered the same from the said well.

3. Based on the said FIR, police investigated the case and

submitted the charge sheet against both the convicts under Sections

376(D)/302/201/34 of IPC. Charges against both of them were also framed

under Sections 376(D)/302/201 read with Section 34 of IPC to which they

denied the allegations.

4. The prosecution examined total 25 nos. of witnesses amongst

whom the vital witnesses are PW-1, PW-2, PW-4, PW-5, PW-11, PW-12 and

PW-21 to PW-24.

5. Learned Trial Court after considering the materials as placed in

the evidence held them guilty and finally convicted them in the terms as

stated here-in-above.

6. Learned counsel, Mr. Ratan Datta for the appellant firstly raises

the issue that the examination-in-chief of as many as 17 nos. of witnesses

were recorded by the learned Trial Court in absence of the learned defence

counsel who was at that time detained in a prison, deferring cross-

3

examination of those witnesses on different dates. According to learned

counsel, such process as was adopted by the Ld. Trial Court was illegal and

contrary to the decision of Hon’ble Supreme Court in case of Ekene Godwin

& Anr. vs. State of Tamil Nadu, 2024 SCC OnLine SC 337. In the said

case, while the trial of the case was being proceeded, application for bail of

the accused person was rejected by the High Court. The matter was

challenged before the Hon’ble Supreme Court and during hearing it was

informed to the Court that the Trial Court recorded examination-in-chief of 12

prosecution witnesses one after the other on different dates without

recording their cross-examination. The Trial Court was infact in a hurry to

dispose of the matter as the High Court directed to complete the trial

preferably within four months. The accused persons were though present

during recording of examination in chief of said witnesses, but they were

completely unrepresented as they did not engage any Advocate in that case

on their behalf. In that contexts, Hon’ble Supreme Court observed that Trial

Court ought to have provided a legal aid Advocate to the appellant before it

proceeded for recording the examination-in-chief of the prosecution

witnesses, so that the evidence of prosecution witnesses could have been

recorded in presence of the Advocate representing the appellant-accused. It

was also observed in that context that when the examination-in-chief of a

material prosecution witness was being recorded, the presence of the

Advocate for the accused was required. He had a right to object to a leading

or irrelevant question being asked to the witnesses. If the trial is conducted

in such a manner, an argument of prejudice would be available to the

accused person. It was also observed that the normal rule is that witnesses

shall be examined in the order laid down in Section 138 of the Indian

Evidence Act,1982. Therefore, recording examination-in-chief only of the

witnesses without cross-examination was contrary to the law and to avoid

any argument of prejudice from the side of defence, learned Trial Court was

directed to conduct a de novo trial by examining the prosecution witnesses

again who were already examined.

7. Mr. Datta, learned counsel argues that the learned Trial Court

based on the evidence of PW-1, Smt. Lalita Das who is the mother of the

present appellant and who had claimed to have heard her son telling to the

co-accused that he would divulge the fact of murder of the deceased by said

Chandan Das to others. According to learned counsel, neither the appellant

confessed the killing of deceased to his mother directly nor had he

4

confessed such commission of murder by himself. Therefore, the learned

Trial Court misapplied the provisions of Section 60 of the Indian Evidence

Act that such a part of evidence was direct evidence. He also submits that

as per the prosecution case, both the appellant and Chandan Das would

always remain under intoxication and would fight with each other. Therefore,

uttering of such words by any of them regarding murder of deceased was

more suspicious and that the relevant part of the evidence of PW-1 was

hearsay evidence.

8. Learned counsel referring to the evidence of PW-2 submits that

there was slope near the alleged well wherefrom the dead body was

recovered and therefore, possibility of accidental fall by the deceased therein

couldnot be ruled out. Learned counsel, Mr. Datta also argues that in a case

of circumstantial evidence, the circumstance from which the conclusion of

guilt is to be drawn, should be fully established and in a conclusive manner

the chain of evidences should be proved so as to exclude any sort of doubt

regarding complicity of the offender. In this regard, learned counsel, Mr.

Datta relies on a decision of Hon’ble Supreme Court in the case of Sharad

Birdhi Chand Sarda vs State Of Maharashtra, AIR 1984 SC 1622.

9. Learned counsel also argues that common intention of both the

offenders were not proved in the evidence and as per the evidence of the

mother of the present appellant, the present appellant only uttered about

complicity of Chandan Das and not of himself in the alleged crime.

10. Learned counsel, Mr. Ratan Datta further challenges the

propriety and legality of the impugned judgment submitting that Section 27 of

the Indian Evidence Act was not proved in this case as the so called

statements of the appellant was secured under pressure and under the

influence of investigating authority.

11. Mr. Datta, learned counsel also relies on a decision of Hon’ble

Supreme Court in the case of Surinder Kumar Khanna vs. Intelligence

Officer Directorate of Revenue Intelligence, AIR 2018 SC 3574, wherein

at Paragraph Nos. 11 and 12 it was held as follows:-

“11. In Kashmira Singh v. State of Madhya Pradesh,(1952) SCR 526,

this Court relied upon the decision of the Privy Council in Bhuboni

Sahu v. The King, AIR 1949 PC 257 and laid down as under:

5

“Gurubachan's confession has played an important part in

implicating the appellant, and the question at once arises, how far

and in what way the confession of an accused person can be used

against a co-accused? It is evident that it is not evidence in the

ordinary sense of the term because, as the Privy Council say

in Bhuboni Sahu v. The King "It does not indeed come within the

definition of 'evidence' contained in section 3 of the Evidence Act.,

It is not required to be given on oath, nor in the presence of the

accused, and it cannot be tested by cross- examination." Their

Lordships also point out that it is "obviously evidence of a very

weak type......... It is a much weaker type of evidence than the

evidence of an approver, which is not subject to any of those

infirmities."

They stated in addition that such a confession cannot be

made tile foundation of a conviction and can only be used in

"support of other evidence." In view of these remarks it would be

pointless to cover the same ground, but we feel it is necessary to

expound this further as misapprehension still exists. The question

is, in what way can it be used in support of other evidence? Can it

be used to fill in missing gaps? Can it be used to corroborate an

accomplice or, as in the present case, a witness who, though not an

accomplice, is placed in the same category regarding credibility

because the judge refuses to believe him except in so far as he is

corroborated ?

In our opinion, the matter was put succinctly by Sir

'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty [1911]

I.L.R.38 CAL.559 at 588 where he said that such a confession can

only be used to "lend assurance to other evidence against a co-

accused "or, to put it in another way, as Reilly J. did in In re

Periyaswami Moopan [1931] I.L.R.54 Mad.75 at 77 "the provision

goes no further than this--where there is evidence against the co-

accused sufficient, if believed, to support his conviction, then the

kind of confession de- scribed in section 30 may be thrown into the

scale as an additional reason for believing that evidence."

Translating these observations into concrete terms they

come to this. The proper way to approach a case of this kind is,

first, to marshal the evidence against the accused excluding the

confession altogether from consideration and see whether, if it is

believed, a conviction could safely be based on it. If it is capable of

belief independently of the confession, then of course it is not

necessary to call the confession in aid. But cases may arise where

the judge is not prepared to act on the other evidence as it stands

even though, if believed, it would be sufficient to sustain a

conviction. In such an event the judge may call in aid the

confession and use it to lend assurance to the other evidence and

thus fortify himself in believing what without the aid of the

confession he would not be prepared to accept.”

12. The law laid down in Kashmira Singh (supra) was approved by a

Constitution Bench of this Court in Hari Charan Kurmi and Jogia

Hajam v. State of Bihar, AIR 1964 SC 1184 at P.1188 wherein it was

observed:

6

“As we have already indicated, this question has been

considered on several occasions by judicial decisions and it has

been consistently held that a confession cannot be treated as

evidence which is substantive evidence against a co -accused

person. In dealing with a criminal case where the prosecution relies

upon the confession of one accused person against another

accused person the proper approach to adopt is to consider the

other evidence against such an accused person, and if the said

evidence appears to be satisfactory and the court is inclined to hold

that the said evidence may sustain the charge framed against the

said accused person, the court turns to the confession with a view

to assure itself that the conclusion which it is inclined to draw from

the other evidence is right. As was observed by Sir Lawrence

Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can

only be used to “lend assurance to other evidence against a co-

accused”. In re Periyaswami Moopan (AIR 1931 Mad 177) Reilly. J.,

observed that the provision of Section 30 goes not further than this:

“where there is evidence against the co-accused sufficient, if

believed, to support his conviction, then the kind of confession

described in Section 30 may be thrown into the scale as an

additional reason for believing that evidence”. In Bhuboni Sahu v.

King (supra) the Privy Council has expressed the same view. Sir

John Beaumont who spoke for the Board, observed that “a

confession of a co-accused is obviously evidence of a very weak

type. It does not indeed come within the definition of “evidence”

contained in Section 3 of the Evidence Act.It is not required to be

given on oath, nor in the presence of the accused, and it cannot be

tested by cross-examination. It is a much weaker type of evidence

than the evidence of an approver, which is not subject to any of

those infirmities. Section 30, however, provides that the court may

take the confession into consideration and thereby, no doubt,

makes it evidence on which the court may act; but the section does

not say that the confession is to amount to proof. Clearly there

must be other evidence. The confession is only one element in the

consideration of all the facts proved the case; it can be put into the

scale and weighed with the other evidence”. It would be noticed that

as a result of the provisions contained in Section 30, the confession

has no doubt to be regarded as amounting to evidence in a general

way, because whatever is considered by the court is evidence;

circumstances which are considered by the court as well as

probabilities do amount to evidence in that generic sense. Thus,

though confession may be regarded as evidence in that generic

sense because of the provisions of Section 30, the fact remains that

it is not evidence as defined by Section 3 of the Act. The result,

therefore, is that in dealing with a case against an accused person,

the court cannot start with the confession of a co-accused person;

it must begin with other evidence adduced by the prosecution and

after it has formed its opinion with regard to the quality and effect of

the said evidence, then it is permissible to turn to the confession in

order to receive assurance to the conclusion of guilt which the

judicial mind is about to reach on the said other evidence. That,

briefly stated, is the effect of the provisions contained in Section 30.

The same view has been expressed by this Court in Kashmira Singh

v. State of Madhya Pradesh where the decision of the Privy Council

in Bhuboni Sahu case has been cited with approval.”

7

12. Learned counsel also relies on a decision of Hon’ble Supreme

Court in the case of Chandrapal vs. State of Chattisgarh, AIR 2022 SC

2542 wherein at Paragraph No.11 it was observed that as per Section 30 of

the Evidence Act, when more persons than one are being tried jointly for the

same offence, and a confession made by one of such persons affecting

himself and some other of such persons is proved, the court may take into

consideration such confession as against such other person as well as

against the person who makes such confession. It is also observed further

that an extra judicial confession is a weak kind of evidence and unless it

inspires confidence or is fully corroborated by some other evidence of

clinching nature, ordinarily conviction for the offence of murder should not be

made only on the evidence of extra judicial confession.

13. He also relies on Nandu Singh vs. State of M.P., (2022) 19

SCC 301, wherein it was observed that absence of proving of motive cannot

be a ground to reject the prosecution case and if motive is proved that would

supply a link in the chain of circumstantial evidence but the absence thereof

cannot be a ground to reject the prosecution case. It was also observed that

absence of motive in a case depending on circumstantial evidence is a

factor that weighs in favour of the accused.

14. Learned counsel, Mr. Ratan Datta further relies on a decision of

Rajendra Singh & Ors. vs. State of Uttaranchal, AIR 2025 SC 4764. In

that case while appreciating the evidences of that case, Hon’ble Supreme

Court observed that the recovery of one of the swords was made from a

garage, and the recovery of another sword and the Kanta was made from

bushes in sugarcane field, which was an open space. The weapons were no

doubt recovered allegedly on the pointing out of the appellants. However, no

effort was made to match the blood on the said weapons with that of the

deceased. The weapons were sent for forensic examination but no report of

the forensic laboratory was produced to establish that the weapons so

recovered were smeared with the blood of the deceased to prove that they

were actually used in the murder of the deceased. This decision was

referred to by Mr. Ratan Datta, learned counsel indicating that the recovery

of the belt from the house of the deceased was not reliable as it was not sent

for forensic examination.

8

15. Learned counsel, Mr. Ratan Datta also argues that the recovery

of the dead body at the instance of the appellant and co-accused/convict as

alleged cannot also termed as leading to discovery as already the general

people gathered there had knowledge that dead body was lying in the well

prior to the arrival of the police there.

16. Mr. Ratan Datta, learned counsel also submits that the evidence

of PWs-2,4,5 and 12 were also similarly of hearsay nature. Learned counsel

further contends that the common intention of committing murder by the co-

accused Chandan Das and the present appellant was also not proved.

When in the post-mortem report, learned counsel, Mr. Datta continues, no

injury was found in the private parts of the deceased and swab analysis

report was also negative, the testimonies of PW-1 and other witnesses that

after committing rape on her, the deceased was murdered does not find

corroborative support with the medical evidence and therefore, the said

witnesses were not reliable. Mr. Datta also argues that there were family

disputes between the PW-1 and his brother Uttam Das on one part and the

appellant on the other part and on several occasions they tried to oust the

appellant from the house and for that purpose, he was falsely implicated in

this case.

17. Learned counsel, Mr. Ratan Datta also contends that extra-

judicial confession was a very weak piece of evidence and in this case such

confession was also not consistent. Moreover, it was a case of

circumstantial evidence but motive of the crime was not proved which is a

decisive factor in the case.

18. Learned P.P., on the other hand argues that in the FIR itself the

motive of the crime was indicated that both the appellant and the co-accused

would disturb the deceased in the night and would kick her doors and

windows of the room and even would use abusive languages towards her

and in this regard, she also lodged one complaint to the Councillor of BMC

No.15 just on the previous day of the incident, therefore to meet the grudge,

the deceased was murdered.

19. Learned P.P. also relies on the evidence of PW-2 as discussed

earlier. Further he submits that the belt of the appellant was recovered from

the house of the deceased at the instance of the appellant which is a strong

9

circumstance against him. Moreover, PW-12, Pintulal Das also corroborated

with the prosecution case materially in his evidence.

20. Learned P.P. also relies on a decision of the Hon’ble Supreme

Court in the case of Vinod Kumar vs. State of Punjab, (2015) 3 SCC 220

in respect of Section 309 of CrPC. It was observed by the Hon’ble Supreme

Court in the said case that the cross-examination of prosecution witnesses

took place after one year and 8 months allowing ample time to pressurize

the witness by adopting all kinds of tactics. In that context, it is was further

observed that there was no cavil over the proposition that there had to be a

fair and proper trial but the duty of the court while conducting the trial was to

be guided by the mandate of the law and the conceptual fairness and above

all bearing in mind its sacrosanct duty to arrive at the truth on the basis of

the material brought on record. If an accused for his benefit takes the trial on

the path of total mockery, it cannot be countenanced and If adjournments

are granted in this manner it would tantamount to violation of rule of law and

eventually turn such trials to a farce. It was also observed that the trial courts

are expected in law to follow the command of the procedure relating to trial

and not yield to the request of the counsel to grant adjournment for non-

acceptable reasons. It was further observed that it is not all appreciable to

call a witness for cross-examination after such a long span of time and It is

imperative if the examination-in-chief is over, the cross-examination should

be completed on the same day. If the examination of a witness continues till

late hours the trial can be adjourned to the next day for cross-examination. It

is inconceivable in law that the cross-examination should be deferred for

such a long time and it is anathema to the concept of proper and fair trial.

21. To appreciate the contentions raised by the parties, the relevant

portions of the evidences of the vital witnesses are required to be examined

first.

22. PW-1, Smt. Lalita Das states that the appellant is her son and

Chandan Das is the friend of her son. Six months prior to the said incident,

Chandan Das started staying in her house along with the appellant and they

would take some intoxicated drugs and whenever they would not be allowed

to stay in the said house they would stay here and there. On 26.06.2020, in

the night after she went to sleep, she heard quarrel between the appellant

and Chandan and at that time, Chandan called her out and she found that

10

the quarrel was going on between them regarding one mobile phone.

Chandan was telling Suman to return his mobile phone as he wanted to go

to his house and the appellant was telling him that he had broken down his

mobile phone and therefore, he would not return the same. Then the

appellant also told Chandan that if Chandan would leave their house to go to

his house back, then he would go out to the road and tell everybody that he

had killed the deceased. The witness also found Chandan to tie the mouth of

Suman by a ‘gamcha’ (napkin). Thereafter Chandan told her that the

appellant had killed the deceased. Thereafter on the following morning she

went to the house of Ex-Councillor Basana Das (PW-5) and told her

everything. Thereafter, the present Councillor Amar Sarkar (PW-4), met her

in the house of Basana Das and other two persons, namely, Pintu Das (PW-

12) and Samarjit Ghosh (PW-2) also came there and she narrated the entire

incident to them. Thereafter, they came to her house and local people

detained Chandan and Suman thereafter and handed over them to the

police. She also stated that the deceased would stay alone in her house. Her

cross-examination mainly consists of denials.

23. PW-5, Smt. Basana Das, the Ex-Councillor of that Ward

corroborating with PW-1 stated that on 27.04.2020, at about 7:00 am, PW-1

came to her house and informed that Suman Das and Chandan Das had

killed the deceased and that Suman Das had told her about the said fact on

the previous night. Meanwhile, Amar Sarkar along with two others also came

there and thereafter PW-1 also told them that Suman Das and Chandan Das

were sleeping in her house at that time. Thereafter, Amar Sarkar and others

along with PW-1 went to her house and later on, she came to know that

Suman Das and Chandan Das were detained and dead body of the

deceased was recovered. In her cross-examination, she admits that Amar

Sarkar is her relative and the appellant Suman Das is her neighbour. She

also admits that the deceased was her cousin, but she did not have any

visiting relation or any conversation with the deceased prior to her death.

24. PW-4, Amar Sarkar, the present Councillor of Ward No.15

wherein the deceased would reside states that from 23.04.2020 the

deceased was absent from her duty in the office and she was stated to be

missing. On 27.04.2020, the elder brother of the present appellant informed

him over phone that on the previous night, the appellant was heard crying

and telling that they had murdered the deceased. Thereafter, he called

11

Pintulal Das (PW-12) and Samarjit Ghosh (PW-2) who were the Booth

Presidents and along with them some other youths of the locality came to

the house of Basana Das where they found PW-1. PW-1 told them that the

appellant along with his friend Chandan Das had killed the deceased and

she came to know the said fact on the previous night from the appellant.

Thereafter they went to the house of PW-1 and found both Suman Das and

Chandan Das there and on being asked, they first did not admit anything but

after some time Chandan Das had confessed that the appellant at first tried

to kill the deceased but Chandan attempted to prevent him, but later on, both

of them raped upon the deceased and then they killed her. They further told

that they had thrown the dead body into a well. Thereafter, PW-4 informed

the police and on arrival of police they along with the police went to the site

of the well led by the convict Chandan Das and found that it was an

abandoned kutcha well and thereafter the dead body was recovered from

there. Police arranged to bring out the dead body from the well. This witness

also states that on the same day police seized a pair of earrings, keys and a

mobile phone of the deceased from the possession of the offenders and he

put his signature in the seizure list. He also further states that on

03.05.2020, in the afternoon, police seized some keys and obtained his

signature in the seizure list. He also identifies those items in the Court. In his

cross-examination, he admitted that witness Basana Das was the mother-in-

law of his daughter and Basana had a bad relation with the appellant on the

issue of falling of ‘Ekasia’ tree of Basana Das over the land of appellant’s

family.

25. PW-12, Pintulal Das states that the Councillor of their Ward

namely, Amar Sarkar informed him over phone that on 27.04.2020 in the

morning that perhaps the deceased was killed and he requested the PW-12

to come to the house of Basana Das. Thereafter he along with Samarjit

Ghosh went there and found Amar Sarkar, Basana Das, Lalita Das were

also present. He also corroborates with PW-4 to have heard the version of

the mother of the appellant and thereafter they went to the house of Lalita

Das and asked both Suman Das and Chandan Das about the deceased and

then they told that 3 days earlier the appellant had tied the neck of the

deceased with a belt and killed her in her house and concealed the dead

body in an unused kutcha well in a rubber garden. Thereafter, Chandan took

them to that well and there they found the dead body of deceased inside the

well. Police were informed and after arrival of the police, they handed over

12

the appellant and his associate to them and the dead body was also

recovered thereafter from the well. There is no material cross-examination of

this witness regarding said part of his evidence.

26. PW-2, Samarjit Ghosh told that on that day as per asking of

Amar Sarkar he went to the house of Basana Das and there Lalita Das told

about a quarrel between the appellant and Chandan Das on the previous

night and during quarrel they were talking about the killing of the deceased.

According to him also, they thereafter detained and pressurised Chandan

Das and the appellant about the deceased, but at first they did not divulge

anything and subsequently, the appellant told them that the deceased could

be found in the rubber garden. Then they took both the appellant and

Chandan Das to that place and they showed a well there wherein the dead

body of the deceased was seen. He also stated that both the offenders

would intake drugs and would disturb the deceased. There is also no

material of the cross-examination on the above said evidence of the witness.

However, in his cross-examination, he stated that the well was situated on

the side of a tilla on a slope.

27. P.W.11, Rakesh Bhadra, a PLV of Sub Divisional Legal

Services Committee, Bishalgarh being a seizure witness states that on

07.05.2020 he went to Bishalgarh P.S. Legal Aid Clinic and on that day at

about 12:05 pm, he went to the dwelling house of the deceased along with

Sub-Inspector of Police, Raju Bhowmik and the appellant was also taken

there and in the said house, the appellant brought out one belt from a room

and said belt was stained with mud and the I.O. thereafter seized the same.

He also identifies the said belt in the Court. His cross-examination contains

only certain denial.

28. PW-23, Dr. Rajib Sarkar is the Autopsy Surgeon and he

deposed that the post-mortem over the dead body of the deceased was

conducted by him with another Dr. Piyali Debbbarma jointly and they found

one brownish colour abrated ligature mark on the side of the neck below the

level of thyroid cartilage and on dissection bruising was also found present in

the muscles of the neck underneath the ligature mark and on the left side of

neck. Epiglottis was congested, however, hyoid bone, thyroid and cricoid

cartilages were found intact. Post-mortem staining could not be ascertained

due to decomposition and no physical injuries were found on the private

13

parts. They opined that the time of the death was 5/6 days prior to the post-

mortem examination and after receipt of SFSL report they finally opined that

there was no associate poisoning or intoxication and though there was

evidence of penetration of vagina by adult penis or penis sized object but

time of penetration could not be ascertained. There was no presence of

spermatozoa/seminal fluid. According to them, the cause of death was as a

result of asphyxia due to strangulation by a ligature and the injuries were

ante-mortem in nature and it was a case of homicidal death. In his cross-

examination, he confirmed that in case of suicidal attempt by jumping into

the well, there would not be any ligature mark like the present case.

29. Now, we first proceed to examine the point as raised by learned

counsel, Mr. Datta that the case is required to be remanded back for de

novo trial from the stage of evidence as the evidence was recorded in

absence of the learned Advocate of the appellant.

30. In this regard, provision of Section 309, CrPC requires a

reference which mandates that in every inquiry or trial, the proceeding shall

be continued on day-to-day basis until all the witnesses in attendance are

examined, and unless the Court finds the adjournment of the same beyond

the following day to be necessary reasons to be recorded. The said

provision also stipulates that when the witnesses are in attendance, no

adjournment or postponement shall be granted, without examining them,

except for special reasons to be recorded in writing, provided further that no

adjournment shall be granted at the request of the party, except where

circumstances are beyond the control of that party. Even, this provision of

section 309, Cr.P.C. also enables the Court to record the statements of

witnesses where a witness is present in the Court but a party or his pleader

are not present or the party or his pleader though present in Court, are not

ready to examine or cross-examine the witness, by dispensing with the

examination-in-chief or cross-examination of the witness, as the case may

be.

31. In the case in hand, we find that the cross-examination was

done at a belated stage almost after one year of the examination-in-chief of

the witnesses but that was so done due to lockdown imposed for Covid-19

pandemic.

14

32. In State of U.P. vs. Shambhu Nath Singh & Ors., (2001) 4

SCC 667, at Paragraph No. 12 the Hon’ble Supreme Court held that once

examination of witnesses has started, Court has to continue the trial on day-

to-day basis unless and until all the witnesses in attendance are examined

(except those whom the party has given up), and the Court has to record

reasons for deviating from the said course. Even that is forbidden when

witnesses are present in Court, as the requirement then is that the Court has

to examine them. Only if there are special reasons which reasons should

find a place in the order for adjournment that alone can confer jurisdiction on

the Court to adjourn the case without examination of witnesses who are

present in the Court.

33. Later on, again in Akil alias Javed vs. State of NCT of Delhi,

2013 CRI.L.J.571, the said principle was reiterated. Reference was also

made to the said earlier decision of Shambhu Nath (supra) in that case.

34. We find in the case in hand that when the witnesses appeared

before the learned Trial Court on every date of recording of evidences,

petitions were filed on behalf of the accused persons by different Advocates

stating that their engaged counsel was in custody in connection with one

criminal case and therefore, it was not possible to do the cross-examination

of the witnesses. Thus, prayer was made to adjourn the proceeding.

Maximum of such petitions were filed on the same ground for fixing other

dates for cross-examination of the witnesses who were being examined by

the Court. Nowhere it was stated in the petition that if the examination-in-

chief of the witnesses who were in attendance, is recorded by the Trial

Court, the defence will suffer prejudice or that prosecution will take the

chance of the absence of the learned defence counsel by putting leading

questions, etc. It is also not clear from those petitions since when the

learned defence counsel was in custody and whether the accused persons

got the scope to engage another counsel on their behalf in advance to

represent them in the Court. It also appears to us that when their counsel

was in jail, they were in touch of other Advocates at that time who filed such

petitions for adjourning the cross-examination. Even, most disturbing fact as

come to our notice is that on 21.05.2022, the investigating officer, Sri Raju

Bhowmik appeared as witness in that case, but on that day, the learned

defence counsel was not found present in the Court when the case was first

taken up. Again, after half an hour the matter was taken up by the learned

15

Trial Court but at that time also, the learned defence counsel did not turn up

on call, and thereafter one relative of the learned defence counsel informed

the Presiding Judge that the learned defence counsel had gone to Udaipur.

It is surprising to us as to how an Advocate can left the station when he has

accepted the brief and the date is fixed of recording of evidence of

witnesses. In case, he is required to leave the station, certainly it is his duty

to make necessary arrangement so that witness is not returned without

examination, else on any unanticipated special ground which compels him to

leave the station, he can inform the matter to the court and seek

adjournment. Learned Trial Court on that day observed that as the accused

persons were facing custody trial, it was not wise to defer the case without

examination of the witness present and accordingly, examination-in-chief of

the said witness was recorded on that day with the intimation to the said

relative of the learned defence counsel and waited for the learned defence

counsel on that day if he would appear, but till 4:25 pm on that day, learned

defence counsel did not appear. Thereafter, learned Trial Court fixed

another date on 23.05.2022 at 3:20 pm for recording the cross-examination

of said witness. On the next date i.e. on 23.05.2022, when the investigating

officer again appeared, learned defence counsel submitted one petition

under Section 311 of Cr.P.C for cross-examination of PW-1 and also

submitted that he was not inclined to cross-examine said witness as he had

not received copy of the examination-in-chief of the said witness.

Immediately, the learned Trial Court furnished him the copy of examination-

in-chief and requested the learned defence counsel to take up the cross-

examination after half an hour, but despite the same, again learned defence

counsel denied to cross-examine the said witness on that day. Learned Trial

Court further assured learned defence counsel that if he did the cross

examination and missed anything in such cross-examination, still the same

would be considered later, on his approach but despite the same, learned

defence counsel remained stubborn in his approach by non-cooperating with

the court and did not cross-examine the witness on that day. Such conduct

of the defence counsel is liable to be deprecated. A Court should not give

such indulgence repeatedly by adjourning the case when it is the duty of the

defence counsel to remain present and ready on the date fixed for cross-

examination of a witness. Therefore, we find that learned Trial Court rightly

closed the cross-examination of said investigating officer on that day.

16

35. In the case of Ekene Godwin (supra), the examination-in-chief

of the witnesses were recorded by learned Trial Court on different dates,

when the accused persons even did not engage any Advocate on their

behalf and were totally unrepresented, and in such a situation, the evidence

of witnesses were recorded by the learned Trial Court as because the High

Court directed to complete the trial within the period of four months. In that

contexts, the Hon’ble Supreme Court observed that the Trial Court ought to

have provided a Legal-aid Advocate to the appellants so that the evidence of

the prosecution witnesses could have been recorded in presence of the

Advocate representing the accused and that if the trial is conducted in such

a manner, an argument of prejudice might be available to the accused.

Therefore, ultimately there was an order of direction for de novo trial by

examining the prosecution witnesses again. But in the present case in hand,

situation is otherwise.

36. In the instant case, learned Trial Court duly fixed another date

for examination of the witnesses whose examination-in-chief were recorded

earlier and during that phase, learned defence counsel also cross-examined

the witnesses to the full extent and did not raise any question that recording

of the examination-in-chief of said witnesses in his absence had caused

prejudice to the accused persons. Therefore, in the appellate stage, the

appellant cannot be permitted to argue the same.

37. Here, in this case, PW-1, the mother of the appellant disclosed

to other witnesses i.e. PWs 2, 4, 5 and 12 that in the night of 26.04.2020

following a quarrel between the two accused persons, the appellant told the

co-accused that if the co-accused left their house to go to his own house

then he would go to the road and tell everybody that he had killed the

deceased and thereafter, the co-accused tried to stop him by pressing a

napkin on his mouth. Then, on query by PW-1, the co-accused told her that

the appellant had killed the deceased. Therefore, it appears that one was

blaming the other holding responsible for the death of the deceased which is

exculpatory in nature. There was no material cross-examination of the PW.1

on this point.

38. What is further noticeable is that according to PW-4, Amar

Sarkar, after getting information from the mother of the appellant when they

asked the appellant and the co-accused, the co-accused confessed that

17

both of them killed the deceased after committing rape upon her and they

also told them that they had thrown the dead body of the deceased into an

well. Thereafter, on being informed police arrived there and the co-accused

led them and the police to the said well and thereafter the said dead body

was recovered there from. Whereas in dis-corroboration with PW.4, witness

Pintulal Das (PW-12) stated that on their asking, both the appellant as well

as the co-accused told that they had killed the deceased in her house and

concealed the dead body in the unused kutcha well in a rubber garden.

Thereafter, the co-accused took them to the well and the dead body was

found inside the said well and thereafter the police was informed.

39. PW-2, Samarjit Ghosh, a Booth President in his turn stated that

when they pressurized the appellant and the co-accused, they did not

divulge anything first but, later on, the appellant told them that the deceased

could be found in a rubber garden and thereafter they took both of them to

that place and they showed a well in which the dead body of deceased was

seen and then police was informed; whereas, according to PW.12, prior to

arrival of police, the co-accused took them to the well wherein the dead body

was seen. PW.2 further stated that He also stated that both the appellant

and the co-accused would disturb the deceased for which the deceased

complained to them on several occasions against the said accused persons.

40. From the evidence of the I.O. (PW-24) also, it appears that

before his arrival at the spot already the dead body of the deceased was

noticed by the villagers and after arriving there, he only took out the body

from the well and made inquest thereafter. Therefore, it cannot be treated as

a case of leading to discovery in terms of section 27 of the Evidence Act.

41. The I.O. also stated that on arrival on the spot he found that

dwelling hut of the deceased was under lock and key and the said

abandoned well was situated about 50 meters away from the said hut. Both

the accused persons were detained by the police and on personal search he

found two gold earrings of the deceased identified by her daughter-in-law

[informant], four nos. of silver colour keys and black colour Nokia mobile

phone of the deceased from the possession of the co-accused Chandan

Das. Thereafter, by the said keys, he tried to open the lock in the dwelling

hut of the deceased and with the aid of such keys, the lock was opened but

without entering into the hut, he again locked the door. Therefore, according

18

to the prosecution itself, nothing was recovered from the custody of the

appellant at the point of time. PW-3 who identified the earrings and mobile

phone to be of the deceased, also corroborated with the I.O. that those were

recovered from the possession of Chandan Das and she also signed in the

seizure list.

42. According to the I.O., on 28.04.2020 he again visited the place

of occurrence in the dwelling house of the deceased to recover the weapon

of offence if any, but found nothing there, and again on 03.05.2020 he

visited said house of the deceased and seized two nos. of locks of the house

by a seizure list. He did not say that on that day he again locked the door of

that house which means, said hut was kept in unlocked condition having

accessibility to others. According to him, on 07.05.2020 on interrogation, the

appellant disclosed that after committing the murder of the deceased he had

thrown the belt of his waist below the cot of the deceased in her house by

which she was strangulated. He accordingly recorded the disclosure

statement of the appellant and along with Executive Magistrate and the

appellant, he went to the house of the deceased. Thereafter, he opened the

door of the dwelling hut of the deceased and the appellant had shown them

pointing out the belt which was partly seen under the dugout mud and the

appellant brought out the belt from that place. Thereafter, he also seized the

same by preparing seizure list at about 1205 hours. PW-11 and PW-18 are

the witnesses of seizure of the said belt. Both of them stated that the said

belt was brought out from the house of the deceased by the appellant which

was stained with mud.

43. However, in the light of the above said evidences, we are

constrained to observe that the sanctity of recovery at the instance of

appellant has been impaired in this case and it is unsafe to rely upon the

said evidence, inasmuch as prior to recovery of said belt on three occasions

the I.O. visited the house of the deceased and key of the lock of that house

was lying with the investigating officer. He himself stated that during his

second time visit on 28.4.2020, he himself searched the weapon of offence

in that house but did not find anything. Therefore, suddenly recovery of said

belt at the instance of the appellant on 07.05.2020 creates a suspicion as

there was ample scope to keep the said belt in the said room by somebody

else other than the accused.

19

44. Regarding the alleged extrajudicial confession, it came out from

the evidence of PW-2 that they pressurized the accused persons to know

about the deceased and at first the appellant or the co-accused did not

divulge anything but later on, the appellant told that the deceased could be

found in the rubber garden and both of them showed the well to them. On

the other hand, PW-4 who was present at that time on the spot stated that at

first both the accused persons did not tell anything but after sometime

Chandan Das (emphasis laid) confessed about commission of murder by

both of them and that at first Suman Das, the appellant tried to kill her to

which he prevented the appellant from doing so.

45. PW-12 did not specify as to who had told them about the

culpability. According to him, both the accused persons told that the

appellant had tied the neck of the deceased with the belt and killed her and

thereafter they concealed the body in the unused well in the rubber garden

and Chandan Das (emphasis underscored) led them for recovery of the

dead body.

46. Generally, the extrajudicial confession are treated as weak

piece of evidence and in the instant case under pressure of the villagers

such facts were divulged by the accused persons subsequently and there

are also dis-corroborations amongst the said above three witnesses in this

regard and it is not the appellant rather the co-accused who led the villagers

to the well.

47. Now, if we summarize the entire evidences as discussed above,

it appears that both the accused persons would stay in the house of the

deceased prior to the alleged incident and they would disturb the deceased

often for which the deceased lodged complaint against them to the local

leaders. According to the complainant, accused Chandan Das told her that

the appellant had killed the deceased and the appellant blamed Chandan for

the same. So, it was not direct extrajudicial confession of the appellant to his

mother implicating him in the commission of crime.

48. As per the evidences of PW.4 and PW-12, the co-accused led

them to the well wherein the dead body was found and not the present

appellant. The keys of the house of the deceased and her ornaments were

also found from the possession of the co-accused and not from the

20

appellant. The recovery of the belt at the instance of the appellant has also

become doubtful. Therefore, according to us benefit of doubt ought to have

been given to the appellant in absence of satisfactory chain link beyond

reasonable shadow of doubt and also regarding common intention of both

the convicts as well as the complicity of the present appellant in committing

murder of the deceased.

49. An extrajudicial confession, if voluntary and true and is made in

a fit state of mind, same can be relied upon by the Court to base conviction,

however same shall have to be proved like other facts. It depends upon the

reliability of the witness to whom it is made and who gives the evidence. At

any cost such confession should be voluntary and rule of caution is also

required to be applied. It should pass the taste of Section 24 of the Evidence

Act,1872.

50. In S. Arul Raja v. State of T.N., (2010) 8 SCC 233, the Apex

Court held as follows:

“55. In view of the above case law, it is made clear that

an extra-judicial confession is a weak piece of evidence.

Though it can be made the basis of conviction, due care and

caution must be exercised by the courts to ascertain the

truthfulness of the confession. Rules of caution must be

applied before accepting an extra-judicial confession. Before

the court proceeds to act on the basis of an extra-judicial

confession, the circumstances under which it is made, the

manner in which it is made and the persons to whom it is made

must be considered along with the two rules of caution: first,

whether the evidence of confession is reliable and second,

whether it finds corroboration.”

51. In Nikhil Chandra Mondal v. State of West Bengal, [2023] 2

S.C.R. 20, the following observations were made by the Apex Court at

paragraph no.15:

15. It is a settled principle of law that extra-judicial

confession is a weak piece of evidence. It has been held that

where an extra-judicial confession is surrounded by suspicious

circumstances, its credibility becomes doubtful and it loses its

importance. It has further been held that it is well-settled that it

is a rule of caution where the court would generally look for an

independent reliable corroboration before placing any reliance

upon such extra-judicial confession. It has been held that there

is no doubt that conviction can be based on extra-judicial

confession, but in the very nature of things, it is a weak piece

of evidence. Reliance in this respect could be placed on the

judgment of this Court in the case of Sahadevan and Another v.

State of Tamil Nadu. This Court, in the said case, after referring

to various earlier judgments on the point, observed thus:

“16. Upon a proper analysis of the above

referred judgments of this Court, it will be appropriate

21

to state the principles which would make an extra-

judicial confession an admissible piece of evidence

capable of forming the basis of conviction of an

accused. These precepts would guide the judicial mind

while dealing with the veracity of cases where the

prosecution heavily relies upon an extra -judicial

confession alleged to have been made by the accused:

(i) The extra-judicial confession is a weak

evidence by itself. It has to be examined by the court

with greater care and caution.

(ii) It should be made voluntarily and should

be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains

greater credibility and evidentiary value if it is

supported 2 (2012) 6 SCC 403 by a chain of cogent

circumstances and is further corroborated by other

prosecution evidence.

(v) For an extra-judicial confession to be the

basis of conviction, it should not suffer from any

material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be

proved like any other fact and in accordance with

law.”

52. In Union of India & Ors. Vs. Major R. Metri No.08585N, Criminal

Appeal Nos. 537-538 of 2017, decided on 04.04.2022, it was again reiterated by

Hon’ble Supreme Court that extrajudicial confession is a weak piece of evidence.

Unless such a confession is found to be voluntary, trustworthy and reliable, the

conviction solely on the basis of the same, without corroboration, would not be

justified.

53. In the instant case, as per the prosecution witnesses, the extra-

judicial confession was not voluntary. Such confession was made when the

alleged offenders were put under pressure by the locals. Learned Trial Court

on the basis of evidence of PW-1 held that both the accused persons were

friend of each other. They used to stay in the house of PW-1 most of the

time and they were talking about the death of the deceased with each other

which was not known to anybody else. Consequently, it was observed by

learned Trial Court that prima facie there were common intention in

commission of the murder of the deceased and then again held that both of

them had committed murder of the deceased. Learned trial Court committed

serious error in holding guilty of the crime based on such prima facie

observation. The knowledge of the appellant that his friend had committed

murder is not sufficient enough to draw the presumption of common intention

of both of them in commission of crime just because they were close friends

and often would stay together.

22

54. Considering thus, it is held that the appellant is entitled to get

benefit of doubt. Accordingly, the appeal succeeds. The impugned judgment

and order of sentence as passed in respect of the present appellant is

hereby set aside, however, this decision will have no bearing in the matter of

conviction and sentence passed against convict Chandan Das as he is not in

appeal before us.

The appellant be set at liberty forthwith. Issue release warrant.

Return the LC records along with a copy of this judgment.

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

sanjay