Biplab Majumder Alias Maran vs The State Of Tripura
2021 Latest Caselaw 563 Tri

                                  Page 1


                     HIGH COURT OF TRIPURA
                           AGARTALA

                         CRL.A(J) 36 OF 2019

1. Biplab Majumder alias Maran,
S/o Late Kiran Majumder of South Chandrapur,
Ward No.2, Bhuiya Para, PS R.K.Pur,
District-Gomati Tripura.

2. Santa Debnath (Majumder),
W/o Biplab Majumder of South Chandrapur,
Ward No.2, Bhuiya Para, PS R.K. Pur,
District-Gomati Tripura.

                                                          ----Appellant (s)
                                  Versus
The State of Tripura

                                                     ----Respondent(s)

For Appellant (s) : Mr. R.G. Chakraborty, Advocate.

For Respondent(s) : Mr. Sumit Debnath, Additional P.P.

Argument heard on          :      07.03.2021

Judgment & Order delivered on              : 12.05.2021

Whether fit for reporting : Yes

     HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
         HON'BLE MR.JUSTICE ARINDAM LODH


                          Judgment & Order
(Arindam Lodh, J)

This appeal is directed against the judgment and order of

conviction and sentence dated 10.04.2019, passed by learned

Additional Sessions Judge, Udaipur, Gomati District in case No.ST Page 2

32(GT/U) of 2016 (T-1), whereby and whereunder the convict-

appellants were convicted under Section 302 read with Section 34 of

IPC and thereby sentenced to suffer imprisonment for life and to pay a

fine of `10,000/- each and they were further convicted under Section

201 read with Section 34 of IPC and sentenced to suffer rigorous

imprisonment for a period of two years and to pay a fine of `5,000/-

each with default stipulation.

2. Brief facts:

2.1. R.K. Pur PS Case No. 2016RKP059, dated 26.05.2016

was registered by the Officer-in-Charge of R.K.Pur PS under Sections

342/302/201 and 120B of the Indian Penal Code on the basis of a

complaint lodged by one Dulal Das. In the said complaint, he stated

that his wife Baby Das along with one Smt. Manju Das of their village

visited the house of accused Biplab Majumder on 24.05.2016 in the

morning on the plea that one woman residing at the house of said

Biplab was said to be the incarnation of 'Goddess Manasha Devi' [a

Hindu Goddess]. His wife and Manju had been suffering from illness.

But, on that day he had no information about the whereabouts of his

wife. Her mobile phone was not responding as it was found to be

switched off. On the next day i.e. on Wednesday, he went to

Chandrapur and visited the house of the accused persons. After Page 3

making a search over there, he did not get any information about

them. In that situation, he again looked for his wife on Thursday i.e.

on 26.05.2016 at 8 O'clock in the morning. He went to the house of

accused persons and while making a thorough search he observed two

dead bodies in the pond of the accused persons. He could identify the

bodies as one of his wife and another of Manju Das. It was further

stated in the complaint that he had the knowledge that the accused

persons had committed many wrongful acts and both Biplab

Majumder and his wife Smt. Manju Das had killed his wife and

Manju Das and thereafter, drowned them in the pond of their house.

He prayed for proper investigation.

3 Investigation was carried out. The investigating officer

visited the place of occurrence, prepared hand sketch map with index;

examined and recorded the statements of available witnesses;

arranged for recording the statements of the two daughters of the

accused persons under Section 164(5) of CrPC where they have stated

that their parents had killed both Baby Das and Manju Sukla Das.

Biplab Majumder, the appellant No.1 had made disclosure statements.

On the basis of such disclosure statements, the articles and weapons

of offence used for committing the crime as well as the wearing

apparels of the victims were recovered at the instance of the appellant Page 4

No.1; arranged for postmortem examination of the dead bodies and

viscera were sent to State Forensic Science Laboratory for

examination; collected reports and finally, on being prima facie

satisfied with the complicity of the appellants with the crime

submitted charge-sheet against the appellants.

4. Having taken cognizance, the case was committed to the

court of learned Sessions Judge, Gomati District, Udaipur who

transferred the case to the court of learned Additional Sessions Judge

for trial.

5. At the commencement of trial, charges were framed

against the accused persons, namely, Biplab Majumder and Smt.

Santa Majunder under Sections 342/302/201 read with Section 34 of

IPC to which they pleaded not guilty and claimed to be tried.

6. In order to prove the charges, the prosecution examined

as many as 25 witnesses and introduced some material documents and

objects which were marked as exhibits on proof.

7. At the closure of recording evidence, the appellants were

examined under Section 313 CrPC with reference to all the

incriminating evidence and materials brought on record against them Page 5

to which they denied all the accusations levelled against them as false.

However, they refused to adduce any evidence on their behalf.

8. Having heard the learned counsels and on consideration

of the evidence and materials as surfaced from the prosecution

witnesses and exhibited documents, the learned Additional Sessions

Judge had arrived at a finding that the charges levelled against the

accused persons had been proved beyond reasonable doubt and thus

convicted and sentenced them as aforestated.

9. Feeling aggrieved and dissatisfied with the said judgment

and order of conviction and sentence, the convicts have preferred the

instant appeal.

10. We have heard Mr. R.G.Chakraborty, learned counsel

appearing on behalf of the convict-appellants and Mr. S. Debnath,

learned Additional Public Prosecutor appearing on behalf of the State-

respondent.

11. Mr. Chakraborty, learned counsel for the appellants

argued that the oral testimonies as adduced by the prosecution

witnesses suffer from serious infirmities as there were lots of

contradictions. Versions of the prosecution witnesses were found to

be improvised. The disclosure statements being recorded in the Page 6

custody of the police ought not to be considered. The oral testimony

of the two daughters of the convict-appellants namely, Radhika

Majumder [PW-20] and Mahua Majumder [PW-21] should not be

believed at all as it came to light that they were tutored by the police

personnel. Added to it, they being the child witnesses, their statements

ought not to be considered trustworthy. The ocular versions of

videographer [PW-7] and the PLVs [PW-2 & PW-16] should not be

given any importance as they had to be regarded as interested

witnesses for their close relation with the police personnel. According

to learned counsel for the appellants, the learned Additional Sessions

Judge had committed a serious error both on points of facts and law in

convicting the appellants in connection with the alleged offence.

Learned counsel prayed for acquittal of the appellants setting aside the

judgment and order of conviction and sentence passed by the learned

Addl. Sessions Judge.

12. To counter the submissions of the learned counsel for the

appellants, Mr. Debnath, learned Addl. P.P. contended that all the

prosecution witnesses were found to be reliable and trustworthy since

all of them had to be regarded as independent witnesses. Learned

Addl. P.P. emphasized that the prosecution had been able to prove

that both Baby and Manju were last seen at the house of the appellants Page 7

and the 'principle of last seen together' would be applicable to

connect the appellants with the crime. Learned Addl. P.P. strongly

argued that there was no reason to discard the evidence let in by PW-

20 and PW-21 simply because of the fact that they stood against their

parents to reveal the truth. He added that to a question put forth by the

court itself, both PW-20 and PW-21 answered that they were not

tutored by anybody. Learned Addl. P.P. submitted that the

postmortem report as well as the evidence of Doctor wholly

corroborated the injuries found in the persons of both the deceased

women. More importantly, according to learned Addl. P.P., the

articles used in committing the crime were discovered from the pond

and other places at the instance of the appellant No.1. Disclosure

statements were recorded in presence of the Executive Magistrate

[PW-10] and further, pointing out memorandum was also prepared in

presence of PW-10 and others. Proceeding further, learned Addl. P.P.

submitted that there was no reason to distrust the evidence of PLVs as

they were the authorized persons by the State Legal Services

Authority to assist the victims of crime in ventilating their grievance

before the police officials.

Page 8

Lastly, learned Addl. P.P. urged to uphold the judgment

of conviction and order of sentence as imposed upon the appellants by

the learned Addl. Sessions Judge.

13. We have given our thoughtful consideration to the

submissions advanced by the learned counsels appearing for the

respective parties. We have perused the evidence let in by the

prosecution witnesses which are necessarily to be discussed by us

being the court of first appeal. On careful scrutiny of the records, for

convenience, we may divide and classify the prosecution witnesses

into the following categories:

(I) Relative witnesses: PW-1, PW-13 and PW-14.

PW-1, PW-13 and P.W-14 are the signatories in inquest

reports conducted upon both the deceaseds'. Further, PW-13 is the

informant.

(II) PLVs, the seizure witnesses relating to seizure of

articles at the pointing of accused as well as witnesses of disclosure

statement : PW-2 and PW-16.

(III) Witnesses stating the character of accused: PW.3,

PW-4, PW-5 and PW-6.

Page 9

(IV) Witness who conducted videography at the time of

disclosure and pointing, recovery of the alleged weapon of offences:

PW-7.

(V) Seizure witness relating to seizure of saree and

blouse: PW-8 and PW-9.

(VI) Executive Magistrate [PW-10].

(VII) Seizure witness of seizure of Identity Cards of both

the UTPs : PW-11.

(VIII) Witness who recorded statement under Section

164 CrPC: PW-12.

(IX) Witness who conducted postmortem: PW-17 and

PW-25.

(X) Witness regarding seizure of postmortem reports:

PW-18.

(XI) Witness regarding seizure of viscera: PW-19.

(XII) Witness who were allegedly, present at the time of

occurrence : PW-20 and PW-21.

(XIII) Investigation Officers: PW-22 and PW-23.

Page 10

(XIV) GD Officer: PW-24.

14. Evidence:

14.1 PW.1, Shri Dipankar Das deposed that deceased Baby

Rani Das was his mother and on 24.05.2016 at about 9.00 am in the

morning Manju Sukla Das came to his house and then, both Manju

Sukla Das and his mother went to the house of accused Biplab

Majumder, who was an 'Ojha' by profession. He further deposed that

at about 12.00 hours (noon) Ramu Sukladas (P.W.14), son of Manju

Sukla Das, came to his house and asked not to go out of home as

'Puja' in the house of accused Biplab Majumder had started and his

mother Manju Sukla Das had given instruction, on mobile, not to go

out of home and accordingly, all of his family members stayed inside

the house. He also deposed that in the evening when they tried to

contact his mother, as well as, Manju Sukla Das, their mobiles were

found to be switched off, but they did not go out in search of them,

and on the following day in the evening he and P.W.14, Ramu Sukla

Das when went to the house of accused Biplab, none was found

available in spite of repeated calls. But, one Muslim neighbour told

them that there was an incident of fight on the previous day in the

house of Biplab Majumder and returning therefrom they informed the

matter to the village Pradhan who assured them that he would visit the Page 11

house of accused Biplab next morning and on the next morning he

along with P.W.14, village Pradhan and other persons went to the

house of Biplab Majumder, but no one was found and on search two

dead bodies were found floating in the pond inside the homestead

campus of accused Biplab, and someone from the visiting members

informed the matter to police who reached after some time and dead

bodies were taken out of the pond and were identified as his mother

and Manju Sukla Das who suffered cut injuries in their persons. The

said witness further deposed that police prepared two separate inquest

reports relating to the dead bodies where he put his signatures as a

witness in the two reports and also identified his signatures thereon.

In cross-examination, he stated that there was a motor-

able road in front of the house of accused Biplab and there was a foot

track connecting the houses of accused Biplab and his elder brother.

14.2 PW.13, Shri Dulal Das, the informant, deposed that

deceased Baby Das was his wife and deceased Manju Das was also

known to him. On 24.05.2016 at about 9.00 am his wife and Manju

Das had left for the house of Biplab Majumder and Santa Majumder

at Chandrapur for their own treatment, but, none of them returned

back and on the following morning. He along with his son (P.W.-1)

and son of Manju Das (P.W.-14) went to the house of Biplab Page 12

Majumder, but, did not find anyone there and the house was locked

from outside and on the following day, i.e., on 26.05.2016, he along

with Pradhan, Members of Gao Sabha and others again went to the

house of Biplab Majumder where dead bodies of two women were

found floating in the pond and the dead bodies were taken out and

they identified both of them as Baby Das and Manju Das, but, the

bodies were found in swelling conditions with several cut injuries.

Deposing further, PW-13 stated that Darogababu prepared two inquest

reports where he put his signatures and on being identified these

reports were marked as Exbt.1/1 and Exbt. 2/1. The complaint lodged

by him was also identified as Exbt.21.

In Cross-examination, he admitted that he did not know

any of the accused persons nor visited their house at any point of time.

He also stated that during the period from 24.05.2016 till recovery of

the dead bodies on 26.05.2016, his brother Jagadish had informed the

matter to the police and accordingly, police had visited their house

and before the morning of 26.05.2016 he had visited the house of

Biplab along with 3 to 4 persons. Being further confronted PW-13

stated that he could not say as to whether on 23.05.2016 and

24.05.2016 both the accused persons were at the parental house of

Santa and on 25.05.2016 and 26.05.2016 they were admitted in TSD Page 13

Hospital, Udaipur. He denied the suggestion that he lodged the case

against the accused persons just on the basis of suspicion only due to

the fact that the dead bodies of his wife and Manju Das were

recovered from the pond of Biplab Das.

14.3 P.W.14, Ramu Sukladas, being the son of Manju Rani

Das deposed that on 24.05.2016 at about 9.00 am his mother along

with Baby Rani Das went to the house of Biplab Majumder at

Chandrapur and at about 11.00 am his mother called him on his

mobile and asked to confine himself and his sister inside the home

and when he asked the reason, his mother said that she was busy and

would answer the question after her return and also told that her

mobile would be switched off for the whole day as there would be a

'Puja' during the day. PW-14 further deposed that subsequently, he

tried to contact his mother but her mobile was responding switched

off and his mother did not return and on the following day, at about

4.00 to 4.30 p.m he along with Dulal Das (P.W.13) and his son

Dipankar Das (PW-1), went to the house of Biplab Majumder, but,

none was found there and his home was locked from outside.

Deposing further, PW-14 stated that on 26.05.2016 the dead bodies of

his mother and Baby Rani Das were recovered from the pond of

Biplab Majumder and he also went there and found many sharp cut Page 14

injuries over both the dead bodies. He deposed that there were Molkos

Miah and Abul Miah who were found there and they told that they

had seen his mother and Baby Rani Das in the house of Biplab

Majumder on preceding Tuesday and also that Biplab and his wife

used to assault the persons who visited their house in connection with

'Puja'. PW-14 also put his signatures in the two inquest reports.

However, in cross-examination he admitted that he

omitted to state to police that Molkos Miah and Abul Miah told that

they had seen his mother and Baby Das in the house of Biplab

Majumder on preceding Tuesday.

14.4 P.W.15, Molkos Miah simply deposed that he went to the

house of accused Biplab in regard to the recovery of the dead bodies

from the pond.

14.5 PW.2, Subal Pal, deposed that on 27.05.2016, he being

attached to RK Pur PS as a Para-Legal Volunteer (PLV) when the

accused Biplab made a disclosure statement to the police at RK Pur

PS in his presence stating that he (accused Biplab) would be able to

show the places, where the articles used in committing the crime were

hidden and such fact of disclosure was video-graphed and was also

reduced into writing. PW-2 identified the said disclosure statement Page 15

along with his signature on the CD and video-graph footage. PW-2

further deposed that after disclosure statement, the SP, Gomati

District and the OC, RK Pur PS, SI Bikash Debbarma, one Executive

Magistrate, he himself and another PLV Goutam Dey (P.W.-16) with

accused Biplab Majumder went to the house of accused Biplab where

Biplab showed one bamboo lathi and thereafter, to a place in the bank

of pond wherefrom an iron chain was seized and on pointing of

accused Biplab, one 'dao' made of iron was recovered by preparing

seizure list and thereafter, accused pointed out a place near his toilet

wherefrom an iron rod was seized and again on the pointing of

accused Biplab, one blouse and petticoat were seized by the police

and again accused Biplab showed a place inside his kitchen room

wherefrom a hurricane was seized and thereafter, on showing a place

by Biplab one lady's money-bag containing some rupees and coins

were seized by the police by preparing seizure list.

PW-2 identified his signature (Exbt.9) and money-bag

(Exbt.MO.2). PW-2 further deposed that accused Biplab showed the

place in his dwelling hut wherefrom a bag was seized.

Being confronted with cross-examination, he stated that

the house of Biplab Majumder was surrounded by other houses and a

motor-able road had passed in front of his house. He also stated that Page 16

there was no identification mark on Exbt.MO1, MO2 and MO 3

series.

14.6 P.W.16, Goutam Dey being another PLV deposed that on

27.05.2016 at about 6.00 to 6.30 pm he went to RK Pur PS on receipt

of a phone call from SI Bikash Debbarma and there he found OC,

DCM (P.W.10)., PLV Subal Paul (P.W.2), accused Biplab and his

wife. OC interrogated Biplab and his wife and they narrated the chain

of incidents in a sequential manner and confessed to have committed

the crime and when being asked they agreed to show the place of

occurrence and accordingly, all the persons including Biplab went to

their residence at South Chandrapur where Biplab mentioned the bank

of the pond where he had kept one plastic rope, a piece of iron rod,

one bamboo stick and also mentioned the place inside the pond where

he had kept one 'bati dao' in the pond mud and the same were

recovered from the mentioned places by police personnel.

Proceeding further, PW-16 deposed that Biplab also had

shown the place inside the room where he had kept one hurricane, one

bag containing one money-bag with money, one small bottle and then

he mentioned the place inside the pond wherefrom one blouse and one

petticoat were recovered and all those articles were seized by police

preparing separate seizure lists where he put his signature as witness.

Page 17

On his identification, the seized blouse with petticoat, nylon rope,

bamboo stick were marked as Exbt. MO.7 series, MO.8 and MO.9

respectively. He also identified 'Bati Dao' as Exbt. MO.6.

In Cross examination he stated that Biplab made the

statement in Bangla language but he could not say as to who

translated the same into English version and he put my signature

thereon being directed by the police officer.

14.7 PW.7 Shri Niranjan Debnath, a photographer, deposed

that on 27.05.2016 he went to RK Pur PS on call of SI Bikash

Debbarma and video-graphed the statement of accused Biplab in

presence of another person from Administrative Department and

thereafter, he along with SI Bikash Debbarma, accused Biplab and

two other persons went to the PO at Chandrapur where the accused

Biplab pointed the places wherefrom dao, lathi, a money-bag, one

plastic rope were recovered and he video-graphed the whole process

and subsequently developed a DVD and delivered to SI Bikash

Debbarma who seized the same by preparing seizure list and also

identified his signature (Exbt.13) and the DVD (Exbt.MO.4) with his

signature (Exbt.14) thereon. He further deposed that he had given a

certificate under Section 65B of the Evidence Act and he also

identified the said certificate (Exbt.15) with his signature.

Page 18

Being confronted with cross-examination, he stated that

when he reached the PS he found the accused in police custody. He

also stated that he did not hand over the handy-cam either to IO or to

Court. He also admitted that he simply signed the certificate which

was reduced to writing by some other person.

14.8 PW.10 Shri Bhabesh Chandra Bhadra, the then DCM,

Killa Revenue Circle, deposed in his evidence that on 26.05.2016 as

per Memorandum issued to him by the SDM., Udaipur he was

directed to perform Magisterial duty in Chandrapur Bhuiya Para to

assist the police and accordingly on 28.05.2016 he went to RK Pur

PS, where in his presence accused Biplab Majumder made disclosure

statement which was recorded by the IO in his presence, SDPO,

Udaipur and two PLVs and he put his signature(Exhibit-11/1) in the

disclosure statement. PW-10 further deposed that accused stated in his

disclosure statement that one day they were performing 'Manasa Puja'

when Baby Rani Das and Manju Rani Sukla Das had arrived there and

at that time, other persons were also present in his house. He further

stated that the accused stated that in course of Puja he along with his

wife murdered the said two ladies by a 'bati dao' and buried them

inside the pond water. The witness also deposed that after completion

of disclosure statement he along with the accused Biplab and police Page 19

personnel went to the house of accused where water of the pond was

drained out and then accused himself took out and produced a 'bati

dao', one lathi and some other articles which were seized by police by

preparing seizure list. PW-10 further deposed that subsequent to

recovery, a pointing memorandum of accused Biplab Majumder was

also recorded in his presence and he put his signature (Exbt.12/1). He

also identified the 'bati dao'(Exbt.MO.6).

During cross-examination, he admitted that at the time of

disclosure statement the accused was in police custody of RK Pur PS.

He also admitted that pointing memorandum was recorded in RK Pur

PS premises after return from the place of occurrence subsequent to

the recovery of articles. He also admitted that personally he had no

conversation with the accused.

14.9 PW-8, Uttam Biswas deposed that on 29.05.2016 at

about 2.00 to 3.00 pm when he was in his shop, he noticed police

personnel taking accused Biplab in a vehicle towards his house and he

also went there where Biplab took out one saree and one blouse with

clay from inside the pond and the same were seized by darogababu by

preparing seizure list wherein he put his signature as a witness and

also identified the same (Exbt.16). PW-8 also identified the seized

saree and blouse (Exbt.MO.5 series).

Page 20

In course of his cross-examination, he stated that he was

not examined by police in connection with this case and except the

day on 29.05.2016 he had no meeting with the IO subsequently.

14.10 PW-9 Iqbal Hossain deposed that on 29.05.2016 at about

2.00 to 3.00 pm he went to the house of Biplab Majumder when he

noticed other persons going there. He deposed that Biplab took out

one saree and one blouse mixed with clay from inside the pond and

the same were seized by darogababu by preparing seizure list wherein

he put his signature as a witness and also identified the same

(Exbt.16/1). He also identified the seized saree and blouse

(Exbt.MO.5 series).

14.11 PW-3 Shri Pranab Kumar Debnath deposed that he heard

about the finding of two dead bodies of women in the pond of Biplab

Majumder on a day, after 24.05.2016.

14.12 PW-4 Rehena Bibi deposed that when she had gone to

the house of Biplab Majumder with her daughter Rajma Begam for

treatment, her eyes were tied with a piece of cloth by Santa Majumder

and then she started beating her with a bamboo stick and when she

along with her daughter was about to return then two girls had arrived.

Page 21

14.13 PW.5, Rajma Begam, deposed that on 24.05.2016 she

went to the house of 'Ojha' (Exorcist), whom she identified in the

dock, along with her mother Rehena Bibi for her treatment and during

Puja the eyes of her mother were tied by piece of cloth and the lady

'Ojha' (exorcist) started beating the persons present there including

her mother with a bamboo stick. She further deposed that when she

about to leave, at that time two ladies had arrived there and she could

know their names as Manju Rani and Baby Rani Das. Deposing

further PW-5 stated that she got introduced to the aforesaid two

ladies, i.e., Manju Rani and Baby Rani Das, on one earlier occasion

when she visited the house of 'Ojha' (exorcist) in connection with her

treatment. The witness further deposed that she came to know that

two ladies were found dead in the house of 'Ojha'.

During her cross-examination, she admitted that she did

not state to IO that she heard that two ladies were found dead in the

house of Ojha.

14.14 PW-6, Smt. Sachi Rani Debnath deposed about her

treatment by the accused Santa Debnath.

14.15 PW.12 Smti. Lopamudra Dasgupta, the then Civil Judge

(Jr.Division)-cum-J.M. 1st Class, Udaipur, Gomati Judicial District Page 22

that on 16.06.2016 she recorded the statement of minor Radhika

Majumder (P.W.20) under Section-164(5) Cr.P.C after satisfying

herself about the ability of the witness to give rational answers and

about her understanding about the duty of telling the truth. She also

deposed that after recording the statement she gave a certificate and

also put her signature. The witness identified the statement (Exhibit-

19) recorded by her along with her signatures (Exhibit-19/1 series).

Deposing further she stated that on the same day she examined

another witness namely, Mahua Majumder (P.W.21) and recorded her

statement under Section 164(5) CrPC and also put her signature

therein. The witness also identified the statement (Exhibit-20) with

her signature (Exhibit-20/1).

During her cross-examination, she stated that she did not

mention in the statement as to who produced the minor witness before

her but she volunteered by saying that she reflected in the order sheet

and she could recollect that the witness was produced by a woman

constable. She also stated that she did not examine the minor witness

as to whether the witness was tutored or convinced by police to say

what was recorded.

14.16 P.W.20 Miss. Radhika Majumder, aged about 9 years,

who is the daughter of both the accused persons, deposed that her Page 23

mother used to perform 'Manasa Puja' at home and several persons

from the locality as well as outside the locality used to attend the

same. She further deposed that some time back perhaps it was the

Tuesday, an incident took place in their house and that day people had

gathered to attend the 'Manasa Puja' and majority of the visitors had

returned by the evening and in the noon period on that day two ladies

namely, Manju and Baby Rani Das had arrived in their house and she

knew their names as they used to visit their house in connection with

Puja. She also deposed that on that day when all the persons returned

back those two ladies stayed in their house and in the evening her

mother confined her and her sister Mahua Majumder in the kitchen

room which was made up of tin sheet and then she asked her father to

bring those ladies and to tie their hands and legs and accordingly, her

father followed the command and sometimes thereafter they heard

some noise and so she peeped through the holes of the tin sheet wall

and saw that her mother was inflicting 'bati dao' blows on Manju and

Baby on the bank of pond of their house and at that time her Jethu and

Jethi were trying to save them but her mother continued with the

assault. Continuing her deposition, PW-20 stated that her mother

along with her father had wrapped those two ladies in gunny bags and

threw into the pond. She further deposed that before confining them in Page 24

the kitchen, her mother also assaulted them and out of fear they kept

silence. To a question put forth by the court she answered that none

had said anything to her with regard to her deposition which she had

made. It is worthy to mention here that she was asked some questions

by the court to judge her rationality and being satisfied the court

proceeded to record her evidence.

During her cross-examination, once she stated that she

did not know Baby Rani Das and Manju Shukla Das but again on

being asked by the court she stated that one day Baby Rani Das and

Manju Shukla Das, came to their house. She also stated that her

parents took her and her sister to their maternal uncle's house on the

day when Baby Rani Das and Manju Shukla Das came to their house.

14.17 PW-21, Miss Mahua majumder, another daughter of the

accused persons, deposed that on 24.05.2016 she was in her house and

on that day, her mother accused Santa Majumder (Debnath) confined

her and her sister (PW-20) in a room and instructed them not to come

out. She also stated that her sister PW-20 informed her that her

parents killed two ladies and she could recollect the name of one as

Baby Das.

Page 25

In her cross-examination she deposed that her mother

instructed her and her sister to stay in a room. She also stated that she

did not know Baby Das personally and at the relevant day her sister

Radhika was six years old.

14.18 PW-22, SI, Bikas Debbarma, the first IO deposed that in

course of his investigation, he conducted inquest on 26.05.2016 over

the dead bodies of Baby Das and Manju Das; arranged for P.M.

examination; visited PO, prepared hand-sketch map with index; seized

blouse, petticoat, nylon-rope, iron made dao, iron made sickle,

bamboo stick, bag, green colour blouse and green yellow saree from

the pond on the pointing of the accused Biplab and a DVD; also

seized viscera by preparing seizure lists; arranged for production of

P.W.20 and P.W.21 before the Ld. J.M. 1st Class, Udaipur for the

purpose of recording of statement U/S 164(5) CrPC.; recorded

disclosure statement in presence of Executive Magistrate, SDPO,

Udaipur and witnesses; prepared pointing out memorandum of

accused Biplab Mazumder; seized weapon of offences on the basis of

confession by accused leading to discovery; arrested both the accused

persons on 26.05.2016 and 27.05.2016 respectively and produced

before court. PW-22 also identified the aforesaid seized articles such

as Dao (Exbt. MO.6), iron sickle (Exbt.MO.10), nylon rope (Exbt.

Page 26

MO.8), blouse-petticoat (Exbt. MO.7 series), Saree blouse (Exbt.

MO.5 series), bamboo stick (Exbt. MO.9), DVD (Exbt. MO.4),

money-bag(Exbt. MO.2), Currency notes and coins (Exbt. MO.3

series).

In cross-examination the IO stated that accused Santa

was arrested after her discharge from hospital. He again stated that he

did not find any blood stain in the wearing apparels of the accused

persons. Being confronted with the cross-examination he also stated

that he did not collect SFSL report during his part of investigation. He

also stated that he did not investigate as to whether there was any

missing report about the missing of Baby Rani Das and Manju Rani

Das from 24.05.2016.

14.19 PW-23 Dy. SP Smt. Mina Kumari Debbarma, another

IO, deposed that during her investigation she re-examined the

witnesses whose statements were recorded by the previous I/O and on

13.08.2016 she examined and recorded the statement of Arun Sarma

and on 22.08.2016 she prayed for tagging the GDE extract and having

found prima-facie evidence for commission of offence

U/Ss.342/302/201/120B IPC and Section 3 of the SC/ST(Prevention

of Atrocities), Act, 1989 she laid charge-sheet before the court.

Page 27

In her cross-examination she stated that she did not

receive the forensic report in respect of seized articles sent to Forensic

department.

14.20 P.W.24, SI Biswajit Das, deposed that on 26.05.2016, he

was posted as SI of police in RK Pur PS and that day at about 08-20

hours he received a telephonic information from one Arun Sharma,

Upa Pradhan of Village Chandrapur Panchayet with information that

two dead bodies were floating in the pond of Shri Biplab Majumder

and accordingly on receipt of the information he entered the same in

the GD vide GDE No.9 dated 26.05.2016 and informed the matter to

the OC. He also stated that on the same day he also made another

GDE bearing No.10 dated 26.05.2016 that SI Dibyundu Roy, SI Bipin

Debbarma, SI Bikash Debbarma along with staff left PS for South

Chandrapur to verify the matter in connection with RK Pur PS GDE

No.9 dated 26.05.2016. On his identification the certified extract copy

of the aforesaid GD Entries (Nos.9 and 10, dated 26.05.2016) was

marked as Exhibit29.

During his Cross-Examination he stated that IO did not

examine him in connection with this case and he could not say

whether the aforesaid Arun Sharma was cited as witness.

Page 28

14.21 P.W.25 Dr. Manoj Debbarma, who conducted

postmortem over the dead body of deceased Manju Rani Das, found

the following injuries:

"(i) Incised wound over occipital parietal region which is 12 cms x 1 cm x 1 cm."

He also stated that other injuries could not be appreciated

due to decomposed body. His opinion as to the cause of death was

"Head injury resulting from the impact of sharp weapon and was anti-

mortem in nature. He also stated that Probable age of death was two

to three days from the time of holding postmortem examination. The

Postmortem Report was marked as Exhibit-30 with his Signature

(Exhibit30/1) on identification.

14.22 PW-17, Dr. Abhijit Datta, who conducted postmortem

over the dead body of deceased Baby Rani Das, found the following

injuries:-

(i) A scalp deep incised wound over occipital parietal region which is 10 cms x 1 cm x ½ cm in diameter.

(ii) Laceration of brain matter and dura was found in the left side of occipital area with a subdural haematoma 3 inch x 3 inch.

(iii) Multiple abrasions and lacerations were found on both shoulders both the forearm and legs.

Page 29

(iv) Multiple lacerations were found on neck, chest and back of trunk.

He also stated that all the other internal organs were in

the stage of decomposition. His opinion as to the cause of death was

"Head injury resulting from the impact of heavy sharp cutting weapon

and all the injuries mentioned in the report were anti-mortem in nature

and manner of death was homicidal. He also stated that Probable age

of death was two to three days before the time of holding postmortem

examination." The Postmortem Report was marked as Exhibit-22 with

his Signature (Exhibit 22/1) on identification. He expressed the

opinion that the injuries observed on the dead body could be inflicted

by MO.6 (dao) if used as a weapon of offence and the lacerations

found on the neck of the dead body could be caused by MO.8 (nylon

rope). He further stated that there was no symptom that the death

might have been caused by drowning.

15. DISCUSSION ON EVIDENCE

15.1 P.W.-13, Dulal Das, the husband of the deceased Baby

Rani Das lodged the FIR. FIR is not a substantive piece of evidence

but can be used for contradiction and corroboration. At the same time,

FIR is not an encyclopedia of the total incident. In the complaint,

P.W.-13 stated that his wife and Manju Sukla Das had been suffering Page 30

from illness and on the belief that one of the accused, namely, Smt.

Santa Debnath (Majumder) being a devotee of "Manasha Devi" ( a

Hindu Goddess) had the power to recover from illness, both of them

went to the house of the accused-persons, the appellants herein. He

tried to contact his wife Smt. Baby Rani Das over mobile phone but,

found it to be switched off. That both the women visited the house of

the accused-persons have been confirmed by P.W.-4, Smt. Rahena

Bibi when she stated in her evidence that she along with her daughter

Rajma Begam went to the house of the appellants for treatment and

when they were about to return, then, she had seen both the women

entering into the house of the appellants. This statement of P.W.-4 has

been supported by her daughter P.W.-5, Miss Rajma Begam when she

stated thus:-

"When we were about to leave that time two ladies arrived there. I know their names as Manju Rani and Beby Rani Das."

P.W.-5 also identified the appellants in the dock.

15.2. What has emerged from this part of evidence is that the

statement made in the complaint that both the women went to the

house of the appellants on 24.05.2016 and they arrived at the house of

the appellants have been confirmed beyond reasonable doubt.

Page 31

16. P.W.-1 and P.W.-14, both being the sons of deceased,

Baby Rani Das and Manju Sukla Das respectively had corroborated

the statement of P.W.-13 that their mother went to the house of the

appellants on 24.05.2016. Both of them were asked by their respective

mothers not to go outside their houses because it would cause harm.

P.W.1 and P.W.14 also have stated that their mothers told them not to

call them because their mobile phones would be switched off. From

the evidence of P.W.1, P.W.13 & P.W.14 it is established that on

24.05.2016 Baby Rani Das and Manju Sukla Das did not return back

to their houses.

17. Next circumstance, is that on the next day, the informant

along with his son, P.W.-1 together with Ramu Sukla Das, the son of

Manju Sukla Das went to the house of the appellants in the evening

but no one was found available in spite of their repeated calls. They

informed the matter to village Pradhan. On the following morning,

i.e., on 26.05.2016, P.W.1 and P.W.14 along with village Pradhan and

other persons went to the house of the appellants but none was found

and they had started searching the house. They had noticed two dead

bodies floating in the pond belonging to the appellants. After a short

while, the police personnel came being informed by someone. Dead

bodies were taken out of the pond when they identified the dead Page 32

bodies as Baby Rani Das and Manju Suklu Das. Police prepared two

separate inquest reports (Exbt-1 & Exbt-2) and both P.W.1 and P.W.2

put their respective signatures in the inquest reports.

18. This circumstance that the dead bodies of the two women

were taken out from the pond had been corroborated by P.W.15,

Molkas Miah when he stated in his evidence that on 26.05.2016 at

about 8.30/9.00 A.M. having heard two dead bodies were found

floating in the pond of the accused-persons, he rushed to that house

and found large gathering including police personnel. At that time,

dead bodies of two women were taken out from the pond. The

statement of Molkos Miah regarding this circumstance was further

corroborated by P.W.24, a Sub-Inspector of Police, when, he stated

that on 26.04.2016 at about 08.20 hours he received a telephonic

information from one Arun Sharma Upa Pradhan of village

Chandrapur panchayet about the floating of two dead bodies in the

pond of the appellants and, accordingly, he entered the same vide

G.D. entry No.9 dated 26.05.2016. He informed the matter to the

officer-in-charge of the police station and vide G.D. entry No.10 dated

26.05.2016 along with other police personnel had rushed to verify the

matter in connection with R.K. Pur G.D. entry 9 dated 26.05.2016.

The extracts copy of G.D. entry was marked as Exbt-29.

Page 33

19. Thus, the second circumstance establishes the fact that

dead bodies of Baby Rani Das and Manju Sukla Das were recovered

from the pond of the appellants.

20. The third episode had began from the lodging of the FIR,

arrest of the appellants followed by recording of disclosure

statements, discovery of articles and weapons used in committing

crime.

21. P.W. 13 lodged the complaint which was registered as

FIR. O/C of the police station endorsed the case to P.W.22, Sri Bikash

Debbarma, S.I. of the Police. On the basis of the FIR, I.O. arrested

Biplab Majumder, the appellant No. 1 on 26.05.2016 and Smt. Santa

(Debnath) Majumder on 27.05.2016. Thereafter, on 28.05.2016, I.O.

recorded the disclosure statement in presence of 2 PLVs [P.W.2,

P.W.16] and P.W.10, the Executive Magistrate. It was video-graphed

by P.W.7.

22. It is no more res integra that the statements made by the

accused in police custody to the investigating agency shall not be

admissible in evidence if it relates to admission of guilt as well as the

manner in which he commits crime. However, it is settled proposition

that the statements made by accused so far it relates to discovery of Page 34

articles or weapons used for committing offence or recovery of other

incriminating substances, shall be admissible in evidence in view of

Section 27 of the Evidence Act.

The discovery of a dead body or cloth wore by the

deceased or a weapon as the result of some information given by the

accused, whether voluntarily or under pressure considered by itself is

not self incriminatory at all. The articles discovered would be relevant

only if they are further proved by other evidence to have been used in

the commission of the offence [Pulukuri Kottaya Vs. R, AIR 1947 PC

67].

23. Keeping in mind the aforesaid principle, we find that the

Investigating Officer had called the Executive Magistrate (PW-10)

and other independent witnesses. In front of them the accused-

appellant No.1, Biplab Majumder made a disclosure statement. In the

disclosure statement he had given a vivid description as to how the

murder of the two women was committed by him and his wife, the

appellant No.2. While describing those chronological events of

murder, the appellant No.1 also disclosed the places where the dead

bodies, wearing apparels of the deceased, the articles and weapons of

offence used by them were hidden. Among the descriptions that the

fact disclosed by him as to how they committed the murder, shall not Page 35

be admissible in evidence as their statements are hit by Section-25 and

Section-26 of the Evidence Act. Only so much of the information

which distinctly relates to the concealment of articles and weapons of

offence shall be admissible in evidence under Section-27 of the

Evidence Act as those statements/information are relevant to the

conduct of the accused under Section-8 of the Evidence Act. Then,

only that portion of the narrative or information, which is the

immediate or proximate cause of the discovery of the fact, shall be

considered to be taken into evidence. The entire disclosure statement

has been reduced into writing in presence of the Executive Magistrate

(PW-10) and other independent witnesses.

24. It is now well settled that Section-27 of the Evidence Act

is an exception by way of the proviso to Section-25 and Section-26,

which contemplates that any confession made to police is not

admissible. Further, Section-27 provides that when any fact is

deposed to as discovered in consequent of information received from

a person accused of any offence, in the custody of a police officer, so

much of such information, whether it amounts to a confession or not,

as relates distinctly to the fact thereby discovered, may be proved.

Thus, the statement pursuant to which any fact is discovered, which

has a direct relevance to the offence is made admissible to the extent Page 36

strictly and distinctly related to the facts discovered for the reasons,

that the statement is confirmed by the subsequent fact of discovered

pursuant to the statement made to the police. Therefore, any fact of

discovery or any statement, to the extent of discovery of fact to be

admissible, it must be within the scope and ambit of Section-27 of the

Evidence Act. The Apex Court in the case of Amitsingh Bhikamsing

Thakur vs. State of Maharashtra, reported in (2007) 2 SCC 310 has

laid down the requirements of Section-27 of the Evidence Act in

paragraph-19 of the judgment, where the Apex Court held as under:

"19. The various requirements of the Section can be summed up as follows:

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.

(4) The persons giving the information must be accused of any offence.

(5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to."

25. Consequent to such disclosure statement, the appellant

No. 1 led the police and all other witnesses to his house where he had Page 37

shown the different places of occurrence. Firstly, the appellant No.1

pointed and had shown the bamboo stick which was found lying in

front of their kitchen door near Jambura tree. The police officer

accordingly had seized it in presence of the witnesses. The appellant

No.1 further moved towards the pondgutla of his elder brother and

pointed and had showed one sickle with wooden handle which was

used for murder of the two women. The police officer accordingly

seized the said sickle. Thereafter, the appellant No.1 led the team of

police official and other witnesses towards their pondgutla and on

being searched, one iron made 'bati dao' inside bottom of their gutla

was recovered and the police seized it. Again, the appellant No.1 led

the team towards their newly made toilet side and had shown the

nylon rope of green colour (21.6 ft. at length) and stated that it was

used for tying the hands and legs of Baby Rani Das and Manju Rani

Sukla Das, then again proceeded towards the pond area wherefrom the

appellant No.1 had recovered the wearing apparels of the two

deceased women. Further, he had pointed out on one blouse of white

colour of Manju Rani Sukla Das and one petticoat of yellow colour

which the appellant No.1 had said to be of Baby Rani Das, police also

seized these articles. Further, the appellant No.1 disclosed that one

sharee which was thrown in the pond water and thereafter, he led the Page 38

police team towards their gutla and had shown one purse saying that it

belonged to either of the two deceased women. Again, the appellant

No.1 led the team towards their dwelling hut saying that one bag

would be available which might be of either of the two deceased

women.

26. Accordingly, all the articles were seized as shown by the

appellant No.1 at the spot where the appellant No.1 had pointed out

and showed in presence of the independent witnesses and the

Executive Magistrate. The seized articles were duly packed and sealed

at the place of occurrence itself. Pointing out memorandum was also

prepared. The aforesaid facts were unearthed based on information as

disclosed by the appellant No.1 who led the police team and other

independent witnesses including the Executive Magistrate, are

relevant to the conduct of the appellant No.1 under Section-8 of the

Evidence Act. Further, this information ultimately resulted the

discovery of the articles and weapons of offence as stated here-in-

above, are admissible in evidence under Section-27 of the Evidence

Act. The conduct of the accused-persons as well as discovery and

subsequent recovery of the articles and weapons of offence which

were seized by the police, have been confirmed by the independent

witnesses including the Executive Magistrate.

Page 39

27. In our considered view, the places where the dead bodies

were concealed and the places where the weapons of offence and

other articles including the wearing apparels were hidden and that

during the process of such discovery and recovery of articles, the

conversation which have taken place between the appellant No.1 and

the police are admissible as proof of conduct under Section-8 of the

Evidence Act. As we said earlier, the discovery statement made by the

appellant No.1 is relevant under both Sections-8 and 27 of the

Evidence Act. [Underlined for emphasis]

28. PWs-1, 2, 10, 13, 14 and 16 have categorically deposed

that they had witnessed the leading to discovery of the articles and

weapons of offence as being informed and shown by the appellant

No.1.

29. PW-8 has deposed that he from his shop noticed the

police personnel along with appellant No.1 to proceed towards his

house. He also went to the place where the appellant No.1 had led the

police officials and had further witnessed the recovery of the articles

as stated hereinabove.

30. PW-9 is a neighbour of the appellant No.1. He had

noticed that Biplab Majumder leading the police officials and other Page 40

persons to his house. He also accompanied those persons and stated

that he had seen that Biplab Majumder taking out one saree and

blouse in clay from inside the pond and the same was seized by the

Darogababu by preparing seizure list where he put his signature as

witness (Exbt.16/1).

31. The investigating officer has confirmed the disclosure

statement along with the pointing out memorandum and confirmed the

information relating to the concealment of the articles and weapons of

offence in his house and that the appellant No.1 had led the team of

police officials and independent witnesses to his house in front of

whom the articles and weapons of offence were recovered at the

instance of the appellant No.1.

32. Another significant feature is that the evidence of PW-4,

PW-5, the prosecution has been able to establish the guilt of the

appellants on the basis of the "last seen together" theory.

32.1 PW-4 has stated that she had gone to the house of Biplab

Majumder with her daughter PW-5 for treatment and at the time of

their return they had seen two women had arrived at the house of the

appellants. PW-5 also has corroborated the versions of her mother,

PW-4. When this fact has been established, the onus lies upon the Page 41

appellants to come out with a possible and plausible explanation that

the two deceased women had left from the house after a certain period

of time. At the same time, PW-1 and 14 have stated that their

respective mothers had conversed with them over mobile phones and

asked them not to go out of their respective houses because it would

be harmful to them and the mobile phones of their mothers would be

switched off. PWs-1, 13 and 14 visited the house of the appellants and

enquired about the whereabouts of the two women but none of them

was found in the house.

33. From the post-mortem examination as conducted by PW-

17 it reveals that the deceased had multiple cut injuries, abrasions and

lacerations in various parts of her body and finally PW-17 in course of

trial having gone through the post-mortem reports deposed that the

cause of death of the deceased was due to 'head injury' resulting from

the impact of heavy sharp cutting weapons and all the injuries

mentioned in the reports were ante-mortem in nature. Manner of death

was 'homicidal'.

34. At the time of his deposition, Exbt.MO 6 (dao) when

brought to the notice of PW-17, he expressed that the injuries

observed on the dead body could be inflicted by the said 'dao' if used

as a weapon of offence. The witness also opined that lacerations Page 42

found on the neck of the dead body could be caused by MO 8 (nylon

rope). PW-17 is found to be very specific in his statement that there

was no symptom that the death might have been caused by drowning.

35. Another doctor (PW-25) being a participant of the post

mortem examination has also opined that "the cause of death was the

head injury resulting from the impact of sharp weapon and was ante

mortem in nature". Thus, what have been gleaned from the evidence

of PW-17 and PW-25 that the seized weapons as have been

discovered on the basis of information of the appellant No.1, has

caused the injuries as detected in the dead bodies of the two women

which are appear to be the causes of death.

36. In view of this, we have no hesitation to hold that the

injuries sustained by the two deceased women have direct nexus with

the weapons of offence as recovered by the police on the basis of the

information supplied by the appellant No.1, and further corroborates

the ocular testimonies of the independent witnesses who were present

at the same time of discovery and recovery of these articles and

weapons of offence.

37. Even, if we consider the present case is a case based on

circumstantial evidence and keep aside the evidence of PWs-20 and Page 43

21, the eye witnesses according to the prosecution case, who

happened to be the daughters of the appellants, then, also in our

opinion, the charges framed against the appellants have been

established beyond reasonable doubt. The entire chain of events

starting from the circumstance that two deceased women had gone to

the house of the appellants for treatment; they informed PW-1 and

PW-14 being their sons not to go out of their respective houses; the

fact of switching off mobiles and they did not return back to their

houses, have been proved beyond reasonable doubt.

38. Next, immediate circumstance is PWs-1, 13 and 14 had

visited the house of the appellants on the next morning and enquired

about the whereabouts of the two deceased women, but, did not find

anyone in the house; they informed the village Pradhan about the

missing of two ladies in the next morning; PWs-1, 13 and 14 along

with village Pradhan and other local persons found the dead bodies of

the two women floating in the pond of the appellants, have been

proved beyond reasonable doubt. Next circumstance is that the police

was informed about the floating of two dead bodies in the pond of the

appellants, have been proved. When the said information was entered

into G.D Book by GD Entry No. 09 and the police team had left the Page 44

police station vide GD Entry No.10, have been taken into evidence

and marked as Exbt.29.

39. Next circumstance is that the police detained the

appellant No.1 Biplab Majumder and recorded his disclosure

statement in presence of Executive Magistrate and other independent

witnesses, and subsequently, the appellant No.1 led the police team to

his house and discovered the articles and weapons of offence from

different places inside of his house which have also been proved

beyond reasonable doubt. The medical evidence wholly corroborates

the injuries sustained by the two women. As such, we do not want to

burden this judgment discussing the evidence of PWs-20 and 21 and

entering into the dispute as raised by the learned counsel appearing for

the parties to test the credibility of these two witnesses as eye

witnesses as the prosecution has tried to project.

40. In the light of above discussion, in our opinion, on close

scrutiny of the evidence and circumstances as have been elucidated,

inference may be drawn that at no point of time the link of connecting

the appellants with the crime has not been broken in the entire chain

of events, and if those circumstances are juxtaposed cumulatively,

then, it give rise to a irresistible conclusion that it was none, but, the

appellants alone have committed the crime by using the weapons, Page 45

which are recovered from various places of their own house on the

basis of information supplied and pointed out by the appellant No.1.

41. For the aforesaid reasons, as the appeal is devoid of

merits, the same stands dismissed. The judgment and order of

conviction and sentence as returned by the learned Additional

Sessions Judge, Udaipur, Gomati District in Case No.ST 32(GT/U) of

2016 (T-I) stands upheld and affirmed.

42. Send back the LCRs.

            (ARINDAM LODH) J                         (AKIL KURESHI) CJ




Sanjay/suhanjit/anjan