SURJYA KANTA DEB Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This criminal appeal was heard by a Division Bench of this Bench comprising of D. N. Choudhury and M. L. Singhal, JJ. Since there was difference of opinion between the two brother Judges, the appeal was laid before me under S. 392, Criminal Procedure Code.

(2.) The facts briefly are that on 21-12-1992 one Naresh Chandra Das lodged a FIR in the Bishalgarh Police Station stating that since Saturday evening Jiban Das, son of Sri Sadhan Das of village Durjoynagar, was missing. In the said FIR, it was further stated that on 21-12-1992 in the noon he came to the 'Doong' of Prabhat Debbarma of Katakhali along with the people of the village and saw the headless body of Jiban Das and identified it, but his head could not be traced

(3.) At the hearing, Mr. P. K. Biswas, learned counsel for the appellants, submitted that the conviction of the appellants is based on four (4) circumstances - (i) the deceased Jiban Das was last seen in the company of the appellants in the evening on the date he was found missing as per the evidence of PW-8 and PW-11; (ii) head of the deceased Jiban Das was recovered being shown by the appellant Surjya from the jungle on the North of the paddy land of Shanti Deb Burma on 25-12-1992; (iii) the appellant Nitya Hari Das was absconding after the incident; and (iv) there was a dispute relating to wooden file for which Jiban went with Surjya to settle up the same on 19-12-1992. Mr. Biswas submitted that except PW-8 no other witness has stated that he had last seen the deceased with the appellants. But PW-8 cannot be believed because he has not stated the date, month or year when he had last seen the deceased with the appellants. It was for this reason that Choudhury, J. did not rely on the evidence of PW-8 that he had last seen the deceased with the appellants. Mr. Biswas cited the decision of the Supreme Court in Jaharlal Das v. State of Orissa, 1991 Cri LJ 1809 in which it has been held that the circumstance that the deceased was last seen in the company of the accused has to be established beyond reasonable doubt. He vehemently argued that so long as the circumstance that the deceased was last seen in the company of the appellants is not established beyond reasonable doubt, the Court cannot convict the appellants on such circumstances. Regarding the second circumstance that the head of the deceased Jiban Das was recovered being shown by the appellant Surjya from the jungle, Mr. Biswas submitted that both D. N. Choudhury, J. and M.L. Singhal, J. held that the recovery of severed head of the deceased did not fall within the ambit of S. 27 of the Indian Evidence Act. According to Mr. Biswas, therefore, this circumstance of recovery of severed head of the deceased from the jungle on the showing of the appellant Surjya cannot be a basis for conviction of the appellants. On the third circumstance that the appellant Nitya Hari Das absconded soon after the incident and surrendered only after the charge-sheet was filed in Court, Mr. Biswas submitted that it has been held by the Supreme Court in Raghubir Singh v. State of UP, AIR 1971 SC 2156 : (1971 Cri LJ 1468), that the act of absconding, even if proved, is normally considered a somewhat weak link in the chain of circumstances utilized for establishing the guilt of an accused person. He also cited the decision of the Supreme Court in Datar Singh v. The State of Punjab, AIR 1974 SC 1193 : (1974 Cri LJ 908), wherein the Supreme Court has held that the prosecution cannot benefit from merely suspicious circumstances that the accused did not surrender or was not traceable for nearly one year. Mr. Biswas submitted that the story of