Besra Vs. State of West Bengal  INSC 182 (10 March 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1499
OF 2007 Jiten Besra .... Appellant Versus State of West Bengal .... Respondent
By this appeal, accused Jiten Besra challenges the judgment of the
High Court confirming the judgment of the Trial Court whereby he was convicted
for the offence under Section 302, IPC and was consequentially sentenced to
suffer rigorous imprisonment for life. The accused Jiten Besra is said to have
committed murder of one Nandlal Tudu and Mital Bala. The deceased Nandlal Tudu
was none else but the father-in-law of the accused, being father of Malati
Besra, his wife. It is contended by the prosecution that on the fateful day,
Malati along with her mother had gone to attend `Boul Song' and she was also
accompanied by her sister Parbati.
came back at dawn on 21.05.1997, they found that both her parents i.e. Nandlal
and Mital Bala were dead.
A written complaint was lodged by Malati in Boro Police Station
wherein it was alleged that one unknown miscreant might have killed her parents
out of previous enmity. The investigation ensued on the basis of this First Information
Report and the investigating agency came to the conclusion that it was
appellant Jiten Besra who was the perpetrator of the crime. In support of it,
the charge-sheet was filed and after the committal of the case to the Sessions
Judge, during the trial, the prosecution examined, in all, 15 witnesses which
included Malati (PW-1), PWs-2 to 13, who were persons from locality, Partha
Sarathi Dhar (PW-14), the doctor who conducted the postmortem of the bodies of
the deceased persons and Ram Narayan Datta (PW-15) who was the Investigating
Officer. The defence of the appellant was that he was being falsely implicated
and there was no evidence against him whatsoever.
The defence did not prevail and the accused came to be convicted
by the Trial Court relaying on the evidence of the prosecution witnesses.
Court dismissed the appeal and that is how the appellant is before us.
A glance at the High Court and the Trial Court judgments suggests
that the Trial Court had relied on few circumstances as also the evidence of
the prosecution witnesses. The circumstances relied upon are:
presence of Jiten Besra in the village on the fateful night;
strained relationship with his parents-in-law; and (iii) the blood found on
three circumstances have been relied upon by the High Court also. We must
hasten to add that the circumstances on which the Trial Court and the High
Court have relied upon are not clearly stated nor do we find any discussion on
one very important aspect that in case of the circumstantial evidence the
circumstances relied upon must be proved first and should not only point
towards the guilt of the accused but they should be of such nature that no
other inference except the guilt of the accused, is possible thereupon. We
have, therefore, to examine the evidence ourselves from that angle.
Learned counsel appearing on behalf of the appellant has contended
that even if all the three circumstances are taken to be proved, such inference
of the guilt on the part of the accused is not possible. The contention raised
is that both the Courts below have erred firstly, in relying upon the unproved
circumstances and secondly, even the witnesses examined including Malati were
not sufficient to reach the only conclusion regarding the guilt of the accused.
The first witness Malati (PW-1) had barely stated about the
strained relationship of her and her husband i.e. the accused as also between
her deceased parents and the accused. This witness was the author of the 4 FIR.
According to her, she had seen her husband to be present after she came back
and realized that her parents were done to death. She also asserted that his
clothes were blood stained at that time. Very strangely, however, in the First
Information Report which she made almost immediately, she had stated that one
unknown person had committed the murder of her parents. She also admitted that
the FIR was written in her house and a number of persons were present there,
including the accused.
a very important piece of evidence, the relevance of which does not seem to
have been realized by the Courts below. Even as regards the so-called enmity,
which is one of the circumstances held against the accused, she admitted that
she could not remember any mis-behaviour committed by the accused towards her.
From her cross-examination, it is clear that the accused was on visiting terms
to her. This does not suggest in any manner that there was such a fierce enmity
between the accused and the deceased persons or even Malati. The evidence of
other witnesses like Santosh Baskey (PW-2) is of no consequence. He is silent
on the question of any enmity. In fact he appears to be a scribe of the FIR.
admitted that the accused was present when the FIR was being written. However,
he did not assert anything regarding the so-called enmity of the accused with
the deceased persons. All that he has asserted was that the accused had
strained relationship with his wife and his parents-in-law. The evidence of
Panchanan Baskey (PW-3) only asserted 5 that the clothes of the accused were
soaked in blood and the relationship between the accused and his wife and his
parents-in-law were strained.
same extent is the evidence of Binod Mandy (PW-4), Laxmi Hansda(PW-5), Sarbeswar
Besra (PW-6), Balaram Baskey (PW-7) Haripada Murmu (PW-8), Jagari Tudu (PW-9),
Ukil Tudu (PW-10) Khudiram Hembram (PW-11), Hapan Hembram (PW-12) and
Durgacharan Hansda (PW-13). Beyond saying that the relations were strained and
further that the clothes of accused were blood stained, all these witnesses
have stated nothing more. None of them has, however, stated that the accused
was not even on visiting terms. On the other hand, their evidence suggests that
the accused was on the visiting terms. Therefore, the first circumstance of
enmity relied upon by the Courts below hardly cuts any ice. In fact, that could
not have been relied upon as an incriminating circumstance at all. It may be
that the accused might be having strained relationship with the wife and her
parents but it is clear that he was on visiting terms with them. He was working
in some other village which is hardly about 15 kms. away from their village.
Under such circumstances, the Courts should have weighed the circumstance as to
whether the strained relationship was of such fierce nature that the accused
would go to the extent of committing murder of both the parents-in-law.
As regards the blood stains on the clothes of the accused, this
circumstance is of no consequence for the simple reason that the clothes 6 of
the accused were never sent to the Forensic Science Laboratory. That is the
fact clearly admitted by PW-15, Ram Narayan Datta who was the Investigating
Officer. Therefore, the origin of the so-called blood allegedly found on the clothes
of the accused was not known nor was it established that it was the blood of
the deceased that was allegedly found on the Lungi of the accused. This witness
also admitted that initially Malati (PW-1) did not say anything against the
accused person and it was only subsequently that she amended her statement and
complained against the accused which statement was much later i.e. on
24.05.1997. Once it is established that the clothes of the accused or deceased
persons were never sent to the Forensic Science Laboratory, it is clear that
nobody knew the blood group of the accused or of the deceased persons. Under
such circumstances, that circumstance loses all its significance.
The last circumstance relied upon by the Courts was the presence
of the accused in the house. There is no evidence collected by the prosecution
that the accused alone was present in the hut. On the other hand, it has
clearly come in the cross-examination of the witnesses that his parents-in-law
were not alone in the hut and in fact the younger brother of Malati was also
present there. This is apart from the fact that the mere presence of the
accused in the village by itself cannot amount to an incriminating
circumstance, particularly, when the witnesses have admitted that he was on the
visiting terms with his parents-in-law. At least no 7 witness denied that he
was on the visiting terms. Thus, in this case all the alleged incriminating
circumstances could not be said to have been established. Once that was clear
and once it is found that the circumstances could not point out towards the
guilt of the accused, without any other inference being probable, the accused
must get the benefit of doubt. There is hardly any discussion regarding this
aspect in the judgments of the Trial Court as well as the High Court. Those
judgments, therefore, cannot be sustained.
Accordingly, we allow the appeal giving the benefit of doubt to
the accused and acquit him of all the charges. He be set at liberty forthwith
unless required in any other offence.
........................................J. (V.S. Sirpurkar)
...........................................J. (Surinder Singh
March 10, 2010.