Sujya Kanta Deb and Others Vs State of Tripura

1. This criminal appeal was heard by a Division Bench of this Bench comprising of DN Choudhury and ML Singhal, JJ. Since there was difference of opinion between the two brother Judges, the appeal was laid before me u/s 392, Criminal Procedure Code.

2. The facts briefly are that on 21.12.1992 one Naresh Chandra Das lodged an 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 even after investigation. Accordingly, Bishalgarh PS Case No. 6(12)92 under sections 302 & 201, Indian Penal Code was registered and investigation was carried out. On the basis of police report submitted pursuant to such investigation, learned Sessions Judge, West Tripura, Agartala, framed charges against the appellants under sections 302 & 201, IPC. The appellants denied the charges and the case was tried. At the trial, altogether 15 prosecution witnesses were examined, but there was no eye witness to the incident. On the basis of the circumstantial evidence, the learned Additional Sessions Judge, West Tripura, by the impugned judgment dated 3.9.1996 convicted all the appellants u/s 302, IPC, and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 2,000 each for the said offence punishable u/s 302, IPC, and in default of payment of fine to undergo rigorous imprisonment for another period of six months. The learned Additional Sessions Judge also convicted all the three appellants u/s 201, IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000 each for the offence punishable u/s 201, IPC, and in default of payment of fine to undergo rigorous imprisonment for another period of six months. Both the sentences were to run concurrently. Aggrieved, the appellant filed this appeal u/s 374, Code of Criminal Procedure. The appeal was heard by a Division Bench. While the learned brother DN Choudhury, J, was of the view that the appeal should be allowed and the impugned judgment of the learned Additional Sessions Judge convicting the appellants under sections 302/201, IPC, should be set aside, and all the appellants acquitted of the charged, the learned brother ML Singhal, J. was of the view that the conviction and sentences recorded by the learned Additional Sessions Judge should be affirmed and the appeal should be dismissed.

3, At the hearing, Mr. PK 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-9 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 Vs. State of Orissa, 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 DN Choudhury, J. and ML Singhal, J. held that the recovery of severed head of the deceased did not fall within ambit of section 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 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 chargesheet was filed in court, Mr Biswas submitted that it has been held by the Supreme Court in Raghubir Singh Vs. State of U.P., 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 The Godavari Sugar Mills Ltd. Vs. S.B. Kamble and Others, 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 a dispute relating to wooden file for which Jiban was called by Surjya was not stated by PW-11 in his statement u/s 161, Cr.P.C. and was introduced only in the witness box and this has been believed by Mr. Singhal, J. He cited a decision of the Division Bench of this court in Bapubhai Somabhai Patel decd. thro'' heirs and L.R. Vs. Vithalbhai Somabhai Patel, in which the court held that omission of an important fact implicating the accused in the FIR affected the probability of the case and was relevant u/s 11 of the Evidence Act in judging the veracity of the prosecution case. According to Mr. Biswas, this is not a case where the prosecution had been able to establish beyond reasonable doubt the entire chain of circumstances from which only one hypothesis leading to culpability of the appellants in the crime could be inferred. He cited the decision of the Supreme Court in Mulak Raj and others Vs. State of Haryana, for his submission that unless the entire chain of circumstances leading to the guilt of the accused persons were established beyond reasonable doubt, conviction could not be based on circumstantial evidence. He contended that this is a fit case in which the impugned judgment of the learned Additional Sessions Judge is liable to be set aside, and the appellants are entitled to be acquitted of the charges.

4. Mr. H. Sarkar, learned Additional Public Prosecutor, State of Triprua, on the other hand, submitted that u/s 5 of the Indian Evidence Act, the statement of PW-8 that he had last seen the deceased with the appellants was relevant, and yet this statement of PW-8 has been discarded by DN Choudhury, J as an omnibus statement. He further argued that besides PW-8, PWs-10, 11 and 12 have also stated that the deceased was last seen together with the appellants. Hence, the argument of Mr. Biswas that only PW-8 had stated that he had last seen the deceased in the company of the appellants, and no other witness had stated similarly, is not correct. Mr. Sarkar submitted that the evidence of PW-11 cannot be discarded merely because of omission in his statement recorded by the police. He pointed out that while the Explanation to section 162, Cr.PC, provides that an omission to state a fact or circumstances in the statement referred in sub-sec. (1) of section 162 may amount to contradiction, there is no such explanation in section 161, Cr.PC under which the police can orally examine any person supposed to be acquainted with the facts and circumstance of the case. According to Mr. Sarkar, therefore, the evidence of PW-11 who had a chamber at the tea stall of the deceased Jiban Das at Chelikhola market that the appellant Surjya called Jiban from the tea stall at about 6.30 PM and Jiban went out of the shop and talked with accused Surjya, and Jiban told him (witness) that he was going to settle up a dispute regarding wooden file and that Jiban went out of the shop at about 6.30 PM cannot be discarded merely because there were omissions of some of the aforesaid facts in his statement before the police. Mr. Sarkar cited the decision of the Supreme Court in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, in support of his aforesaid argument. Regarding discovery of severed head of the deceased Jiban Das on the showing of the appellant Surjya, Mr. Sarkar argued that this was a very important circumstance to establish the guilt of the appellant Surjya. He submitted that on the basis of the statement to the police by PW-8 that he had seen the deceased Jiban last with the appellants, Surjya had been arrested and after his arrest Surjya furnished Information to the Investigating Officer, PW-15 that he knew where the severed head of the deceased Jiban and such information led to the recovery of the severed head of the deceased. This information of Surjya to the police has been proved by the Investigating Officer, PW-15 in his oral testimony and is admissible u/s 27 of the Evidence Act. In support of his contention he relied on the decision of the Supreme Court in State of Maharashtra v. Damu Gopinath Shinde AIR 2000 SC 1691. Mr. Sarkar further argued that it will appear from the judgment of DN Choudhury, J. that he has taken a view that in the absence of proof of motive of the appellants to commit the offence conviction of the appellants could not be sustained. He submitted that motive be a relevant factor, but difficult to prove because motive is in the mind of the accused persons. Hence if other circumstances proved beyond reasonable doubt that the accused persons have committed the offence, they cannot be acquitted merely on the ground that the motive of the accused for committing the offence has not been proved by the prosecution. In support of this argument, he cited the decision of the Supreme Court in State of UP v, Babu Ram AIR 2000 SC 1735, Mr. Sarkar''finally argued that the appellant Surjya in any case cannot escape conviction on the basis of the circumstantial evidence on record.

5. In Sajjan Singh Vs. State of Madhya Pradesh, the Supreme Court dealt at length the duties of a third Judge when an appeal is referred to him u/s 392, Cr.PC. on account of difference of opinion between the two Judges of the Division Bench who had heard the appeal originally, and the Supreme Court held that third Judge is required to examine the whole of the case independently, and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising in the Division Bench where, there is no difference and as a matter of fact the third Judge is not bound by any such opinion of the Division Bench. Hence, in this reference u/s 392, Cr.PC, I will have to examine whole of the case of the appellants independent of the opinions of the brother Judges DN Coudhury, J. and ML Singhal, J.

6. On an examination o the evidence of the prosecution witnesses, I find that on 19.12.1992 the deceased Jiban did not return home in the night. This has been stated by PW-10 and PW-12, the father and the elder brother of the deceased Jiban. PWs-10 and 12 have further stated that the next day, on 20.12.1992 they went to the tea stall of deceased Jiban and met PW-11, a quack who had his chamber in the tea stall of deceased Jiban at Chelikhola Market, and PW-11 told both PWs-10 and 12 that on the previous day he saw Surjya calling Jiban from outside the tea stall, and Jiban came out of the tea stall and met Surjya. Hence, the evidence of PW-11 is very material, and is to the following effect:

"I am a Pharmacist. My registration No. Is D/87(T). I practise privately. I am a village flopathic ''quack'' doctor. My chamber is at Chehkhoia market, My chamber was at deceased jiban''s tea stall at Chelikhola market. From 1990 to ''921 used to practise in Jiban''s tea stall. Jiban was murdered in 1992. Accused Surjya Deb called him (Jiban) from the tea stall at about 6.30 P. Jiban went out of the shop and talked with accused Surjya. I cannot say about which they talked. Jiban told me that he was going to settle up a dispute regarding wooden file. I advised him not to go at night. He told me that with him accused Surjya, Nitya Hari and Gostha would also go. After this Jiban went out of the shop at about 6.30 p.m. I closed the door of the tea stall by putting shekal of the door from outside and went away home. Next morning Jiban''s elder brother Madhab came to the tea stall of Jiban and met me there and enquired of Jiban. I told him that accused Surjya called him and he (Jiban) went to attend a meeting regarding settling up a dispute .in connection with wooden file. Next day the dead body of Jiban was taken by the police through Chelikhola market and I saw the dead body in the market....." .

It would be clear from the evidence of PW-11 that on 19.12.1992 the deceased Jiban went to his tea stall at Chelikhola market and at 6.30. p.m. Surjya called him from outside the tea stall and Jiban came out of the shop and talked with Surjya and thereafter Jiban went out of the shop, and PW-11 closed the door of the shop and went away home. :

7. Two days thereafter, i.e. 21.12.1992 the dead body of Jiban without his head was recovered. This has been stated by PW-15, Investigating Officer. He has stated that information was received on 21.12.1992 that the dead body of the deceased was found at Chelikhola under Bishalgarh Police Station, and at 1500 Hrs., he along with others reached at Katakhali with staff and after arrival he saw many people assembled there around the dead body of Jiban and the police party guarded the dead body. He has stated that Naresh Chandra Das of village Durganagar appeared before him and the witness recorded his oral statement which was subsequently treated as First Information Report and Bishalgarh PS Case No.6(12)92 under sections 302/201. IPC, was registered. The recorded statement of Naresh Chandra Das has been-marked Ext.P-5/1, and the endorsement and the signature pf PW-15 have been marked Ext.P-5/2. The dead body of Jiban was be-headed and there were multiple injuries found on his body and blood stains were found nearby the dead body. He has further stated that the place where the dead body was found was a ''dung'' (ditch land) of Prabhat Debbarma. He has further stated that he has prepared the inquest report of the be headed dead body as identified by Sri Naresh Chandra Das in presence of the witnesses and the inquest report has been marked Ext.P-6/4 and his signature has been marked Ext.P-6/5. Thereafter, he sent the dead body from Katakhali to Bishalgarh CHC for postmortem examination with dead body challan marked Ext. P-13. Naresh Chandra Das has been examined as PW-4, and he stated that in the year 1992 one day when he was working in the paddy field in the noon time, he heard hue and cry; and he rushed towards house but did not enter the house as he learnt from the people assembled there that the dead body of Jiban had been found in some place. He followed the persons who were running towards the ditch land of Shanti Debburma, and after reaching there he saw the dead body of Jiban without head in the ditch of Shanti Debburma and a full pant was worn by him and a shirt was lying by the side of the dead body. PW- 5 who appears to be present when the headless dead body was recovered has also stated that in the ditch of Katakhali he saw the headless dead body of Jiban and Daroga Babu prepared an inquest report in respect of the dead body of Jiban and he put his signature in the said inquest report which has been marked Ext.P-G/1. PW-7 wh''o was present when the headless dead body of Jiban was recovered has also stated that Daroga Babu prepared inquest report in his presence and he put his signature there and his signature has been marked Ext.P-6/3. He has also stated that Daroga Babu prepared a seizure list of one shirt and one pant and obtained his signature there. His signature has been marked Ext.P-7/1. He also stated that the shirt was seized in his presence and he identified Ext.MO-I. PW- 6 who was also present at the time of recovery Of the dead body of Jiban has stated that the dead body of Jiban was found in the ditch which was without head and Daroga Babu prepared the inquest report and obtained his signature in the said inquest report which has been marked Ext.P-6/2. PW-13 is the Doctor who was the In-charge of Bishalgarh CHC on 22.12.1992, and he has stated that the dead body of Jiban being identified by a constable was examined by him on 22.12.1992 at 1.00 PM, and he has submitted a postmortem examination report and as per his opinion the death was caused due to multiple stab wounds over the body as well as deception of head from the body leading to massive circulatory failure, and that the wounds were homicidal in nature and caused by sharp cutting penetrating object. The post-mortem examination report has been marked Ext.P-8.

8. The aforesaid discussion of the evidence led by the prosecution establishes beyond reasonable doubt that the offences under sections 302/201 ,IPC, had been committed of which the deceased Jiban was the victim.

9. The next question is as to whether the prosecution has been able to establish beyond reasonable doubt that the said offences under sections 302/201, IPC, have been committed by all the three appellants, namely, Surjya, Nitya Hari and Gushtha. As indicated above, from the evidence of PWs-10, 11 and 12 it is clear that on 19.12.1992 the deceased Jiban went to his tea stall at Chelikhola market and at 6.30 PM Surjya called him from outside the tea stall and Jiban came out of the shop and talked with Surjya and thereafter Jiban went out of the shop and PW-11 closed the door of the shop and went away home. On these facts, the evidence of PWs. 10 and 12 his hearsay inasmuch as they have heard these facts from PW-11. Hence, the evidence of PWs-10 and 12 on these facts cannot be taken Into consideration. But the evidence of PW-11 on these facts are not hear-say but direct because PW-11 had himself seen that at 6.30 PM Surjya called Jiban from outside the tea stall and Jiban came out of the shop and talked with Surjya and thereafter Jiban went out of the scope and PW-11 closed the door of the tea stall from outside and went away home. I have carefully pursued the entire evidence of PW-11, and I find that there is nothing in the said evidence to disbelieve PW-11 on these facts. In my considered opinion, therefore, the prosecution has been able to establish beyond reasonable doubt that the deceased Jiban was last seen with Surjya. The evidence of PW-11 quoted above would show that PW-11 had not'' himself seen Nitya Hari and Gustha when Surjya came to call Jiban at about 6.30 p.m. PW-11 has stated that Jiban told him that he was going to settle up a dispute regarding the wooden file and he (witness) advised him not to go at night and Jiban told him that with him Surjya, Nitya Hari and Gustha would also go. Thus, the evidence of PW-11 that Nitya Hari and Gustha would also accompany the deceased Jiban and Surjya is hereasy and not direct. Such evidence of PW-11 is therefore of no help to the prosecution to establish that the deceased Jiban was also last seen along with Nitya Hari and Gustha besides Surjya,

10. For establishing that the deceased Jiban was last seen with Surjya, Nitya Hari and Gustha, the prosecution has also relied on the evidence of PW-8 which is to the following effect:

"Jiban Das was murdered about 4/5 years ago.

I was coming to the market from my house. In the middle part of the road I met Jiban Das, Surjya (accused), Nitya Hari (accused) and Sadhu @ Gostha (accused), who were proceeding towards north. I cannot say anything further. I cannot say who murdered Jfban Das. The accused persons are present in the court (identified).

Cross-examination:

When I saw them, it was about 7.00 p.m. That time was winter. That was dark day, there was no light. It is not a fact that I did not meet accused and Jiban Das on my way to the market. J did not talk with them."

From the aforesaid evidence of PW-8, it is not clear as to whether PW-8 had been Jiban along with Surjya, Nitya Hari and Gostha a day or two before the body of the deceased Jiban was recovered or several days before the body of the deceased Jiban was recovered. In other words, it is difficult to hold on the basis of the aforesaid evidence of PW-8 that PW-8 met Jiban, Surjya, Nitya Hari and Gostha in the middle of the road on 19.12.1992. PW-8 could have met Jiban, Surjya, Nitya Hari and Gostha several days prior to 19.12.1992. PW-8 could have met Surjya, Nitya Hari and Gostha several days prior to 19.12.1992 as he has only stated that he had seen them at about 7.00 p.m. In winter. The result of the aforesaid discussion of the evidence of PW-11 and PW-8 is that while it has been established beyond reasonable doubt by the prosecution from the evidence of PW-11 that the deceased Jiban was last seen going out with Surjya at 6.30 p.m. on 19.12.1992, it has not been established beyond reasonable doubt by the prosecution that the deceased was last seen also along with Nitya Hari and Gostha. In Jaharlal Das v. State of Orissa, (supra), cited by Mr. BIswas, learned counsel for the appellants, the Supreme Court has held that the circumstance that the deceased was last seen in the company of the accused has to be established beyond reasonable doubt. The circumstance that the deceased Jiban was last seen in the company of Nitya Hari and Gostha having not been established beyond reasonable doubt cannot be taken into consideration. There is no other circumstance proved to implicate "Gostha. There is however a circumstance established against Nitya Hari that he absconded and surrendered only at the time of submission of charge-sheet. But by this circumstance alone, Nitya Hari cannot be convicted for the offences under sections 302/201, IPC.

11. There are, on the other hand, other circumstances established by the prosecution to link Surjya with the commission of the offences under sections 302/201, IPC. PW-15, Investigating Officer, however, has stated that on 24.12.1992 he recorded the statement u/s 161, Cr.PC. of Smti Jyoti Deb, Jagabandhu Das (PW-11), Sadhan Das (PW-10) and Madhab Das (PW-12) and on 25.12.1992 he interrogated the accused Surjya who stated before him that he would be able to discover the cut head of deceased Jiban and he recorded the said statement in the CD and also in the GD. Then he took the accused Surjya and accused Gostha to Katakhali to recover the cut head of Jiban as per the statement of Surjya, and at 6.50 AM on 25.12.1992 at Katakhali on his calls the villagers, namely, Sukhen Saha, Santi Das, Santi Debbarma, Shyama Charan Debbarma and many others arrived in the paddy land of Shanti Debburma. He has further stated that as per the instruction of accused Surjya and as led by him he together with the villagers and accused Surjya arrived in the paddy land of Shanti Debburma wherefrom Surjya recovered in presence of the aforesaid persons the cut head of Jiban. PW-15 has also stated that near the cut head the clothings, namely, one red colour stripe shirt and one white shirt with blood stains were found. He then prepared the inquest report in respect of the cut head of Jiban and arranged for taking snaps of the cut head by the photographer. His signature in the inquest report in respect of cut head has been marked Ext.P-1/2. Sukhen Saha who was also present at the time of recovery of cut head of the deceased Jiban has been examined as PW-1 and he has stated that the accused Surjya recovered the cut head of deceased Jiban from the ''Lunga'' of Shanti Debburma and the cut head was covered by two shirts. He has further stated that inquest report was prepared before him by the police officer and his signature in the inquest report has been marked Ext.P-1. He has also stated that the police seized two shirts, one belonged to deceased Jiban and about the other shirt he could not say to whom it belonged. He signed the seizure list and his signature has been marked Ext.P-2. He identified the two shirts marked Exts-MO-I and MO-H, Shanti Kumar Deb Burma who was also present at the time of recovery of cut head of deceased Jiban has been examined as PW-2. He has stated that in presence of the police officer the accused Surjya recovered the cut head of deceased Jiban which was covered by cloths. He identified the shirts which were recovered from the place where the cut head was recovered and he has stated that the cut head was covered by the shirt. Shanti Das who was also present at the time of recovery of cut head of deceased Jiban has also been examined as PW-3 and he has stated that in his presence the accused Surjya recovered the cut head of the deceased Jiban which was covered by some cloths and the accused Surjya removed the cloths from the cut head and then he saw that it was the cut head of Jiban. He has also signed the inquest report and his signature has been marked Ext.P-1/1 and he has also signed the seizure list and his signature has been marked Ext.P-2/1 and he identified Ext.MO-II. PWs-1,2 and 3 however have stated that the said recovery of cut head of deceased Jiban took place on 21.12.1992 at about 6.30 AM, but the Investigating Officer. FW-15, has stated that the recovery took place on 25.12.1992. Since PWs-1,2 and 3 have put their signatures in the inquest report relating to recovery of cut head of the deceased Jiban on 25.12.1992, the actual date of recovery, of the cut head was 25.12.1992 and not 21.12.1992, and in my opinion this discrepancy with regard to date of recovery of the cut head of the deceased in the evidence of PWs. 1, 2 and 3 is not material.

12. The evidence of PW-15, Investigating Officer, Would show that the recovery of the cut head of the deceased Jiban was made on the information furnished by Surjya to the Investigating Officer, PW-15. Section 27 of the Indian Evidence Act states that when any fact is deposed to as discovered in consequence 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. In State of Maharashtra v. Damu Gopinath Shinde (supra), cited by Mr. Sarkar, learned PP. the Supreme Court has held that the basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events and the doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. In the said decision, the Supreme Court has further held that the information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information and the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. In the said decision, however, the Supreme Court has cautioned that the information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered. In the said the Supreme Court has held that the information supplied by the accused No.2, Guruji, that the dad body of Dipak was carried on the motor-cycle upto the particular spot, was admissible in evidence. In the present case, PW-15 has stated that when he interrogated the accused Surjya he stated before him that he would be able to discover the cut head of Jiban and on the basis of such information the cut head of Jiban was recovered. Pursuant to such statement of the accused Surjya to PW-15, the Investigating Officer, the cut head of the deceased Jiban was recovered. Hence, the information furnished by the accused Srujya to the Investigating Officer, PW-15 is admissible only to the extent that Surjya knew where the cut head of Jiban could be found.

13. The fact that Surjya knew as to where the cut head of Jiban could be found has also been independently proved by the evidence of PWs 1, 2 and 3 discussed above. The said PWs.1, 2 and 3 have all said that in presence of PW-15. the accused Surjya recovered the cut head of deceased Jiban. Moreover, the aforesaid prosecution witnesses stated that the cut head of deceased Jiban was covered by shirt/shirts. Accused Surjya therefore could not have seen the cut head of the deceased Jiban as an ordinary person moving around the place. In other words, he know that under the shirts the cut head of Jiban was kept concealed. The circumstance that the cut head of the deceased Jiban was lying concealed under the shirt(s) in a paddy field and was recovered by the accused Surjya in presence of PW-15, PWs- 1, 2 and 3, is a strong circumstance to link the accused Surjya with the commission of the offences under Sections 302/201, IPC.

14. Further, the evidence of PW-11 quoted above would show that Jiban told PW-11 when he left the tea stall at 6.30 p.m. with Surjya that he was going to settle up a dispute regarding the wooden file The said evidence of PW-11 cannot be discarded as hearsay because PW-11 himself heard Jiban telling him that he was going to settle up a dispute regarding the wooden file. It is thus clear from the evidence of PW-11 that there was a dispute between the deceased Jiban and the accused Surjya regarding wooden file and that Jiban went along with Surjya at 6.30 p.m. to settle up the said dispute. There is no eye witness to say as to what happened between deceased Jiban arid accused Surjya while settling up the said dispute regarding wooden file. But the circumstance that there was a dispute regarding wooden file to be settled for which Jiban left along with Surjay at 6.30 p.m. from his tea stall, is relevant to establish the motive for commission of the offences under sections 302/201 IPC, by the accused Surjya. Section 8 of the Indian Evidence Act provides that any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. In State of UP v. Babu Ram (supra), cited by Mr. Sarkar, learned PP, the Supreme Court has held that motive is relevant factor in all criminal cases whether based on testimony of eye witness or circumstantial evidence and if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances.

15. The evidence of PW-11, however, has been disbelieved by DN Choudhury, J. because of the following portion of his statement in the cross-examination :

".... The police interrogated me and recorded my 161 statement. I cannot remember when I told police that on 19.12.1992 in the evening I was treating the patient. Attention of the witness is drawn to his 161 statement and such statement is found and the statement is marked Ext-1-1 (subject to proof by IO). I told the police that Jiban went that evening to settle up a dispute in connection with wooden file as called by accused Surjya. Attention of the witness is drawn to his 161 statement but it is found that there is no such statement."

It will be clear from the aforesaid portion of the statement of PW-11 in his cross-examination that when he was asked as to whether he told the police that Jiban went that evening to settle up a dispute relating to wooden file as called by accused Surjya, he affirmed that he had told the police that Jiban had gone that evening to settle up a dispute in connection with wooden file as called for the accused Surjya, and he did not admit that he did not say all these to the police. His attention however was drawn to his statement u/s 161, Cr.PC. and the learned trial Judge has thereafter recorded that it was found that there was no such statement. For these reasons, DN Choudhury, J. took the view that PW-11 cannot be relied on. When PW-11 did not admit in the witness box that he had not told the police that Jiban went that evening to settle up a dispute in connection with wooden file as called by the accused Surjya, the only way the accused could make use of the contradiction in the statement of PW-11 before the police u/s 161, Cr.PC and in his statement before the court is by proving that part of the statement of PW-11. The proviso to sub-section (1) of section 162, Cr.PC, makes it clear that any part of the statement of a witness called for by the prosecution in a trial reduced into writing may be used by the accused to contradict such witness in the manner provided by section 145, Indian Evidence Act if it is duly proved, Section 145, Indian Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing or reduced Into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but if it is Intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Interpreting the said provisions of section 162,Cr.PC. and section 145, Indian Evidence Act, the Supreme Court held in Tahsildar Singh v. State of UP, (supra), cited by Mr. Sarkar :

"The proviso to S. 162 of the Code of Criminal Procedure only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S. 145 of the Evidence Act. Nor are we impressed by the argument that it would not be possible to invoke the second part of S. 145 of the Evidence Act without putting relevant questions under the first part thereof. The difficulty is more imaginary than real. The second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer..."

The explanation to section 162, Cr.PC., states that an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Hence, it is not every omission in a statement made by a witness to a police officer reduced into writing that amounts to contradiction. The context of the statement of the witness reduced into writing in which the omission occurs has to be examined for the purpose of coming to the conclusion as to whether such omission amounts to a contradiction in the particular context. Unless, therefore, the part of the statement of the witness reduced into writing in which omission occurs is proved it is difficult for the court to hold that such omission in the statement of the witness reduced into writing by the police officer contradicts the statement of such witness in the witness box. Assuming, therefore, PW-11 had omitted to state before the Investigating Officer u/s 161, Cr.PC. that Jiban went that evening along with Surjya to settle up a dispute relating to wooden file as to whether such omission amounts to a contradiction with his statement in the court could only be decided if that part of the statement was proved before the court. Since the previous statement ofPW-11 u/s 161, Cr.PC before the Investigating Officer, PW-15 has not been proved, the court cannot discard the evidence of PW-11 that he told the police that Jiban went that evening to settle up a dispute in connection with wooden file as called by the accused Surjya.

16. Thus, the prosecution has been able to establish beyond reasonable doubt the following circumstances - (f) on 19.12,1992 at about 6.30 PM when Jiban was in his tea stall, he was called by accused Surjya; (ii) Jiban went with Surjya in that evening for settling up a dispute relating to wooden file; (iii) Jiban did not return home that night; (iv) On 21.12.1992 the dead body of Jiban was found with his head severed in the ditch of Prabhat Deb Burma and the body wore a full pant; (v) on 24.12.1992, PW-11 was examined by the Investigating Officer, PW-15, when PW-11 told the Investigating Officer that Jiban went along with accused Surjya from the tea stall; and (vi) on 25.12.1992 on information furnished by accused Surjya, and on being shown by Surjya, the severed head of the deceased Jiban lying concealed under shirt(s) was recovered. From these chain of circumstances, only one hypothesis is possible and that is accused Surjya committed the offences under sections 302/201, IPC. In Mulak Raj v. State of Haryana (supra) cited by Mr. Biswas, the Supreme Court found that the chain of circumstantial evidence in that case did not lead to culpability of the accused and the prosecution had not been able to establish by such chain of circumstantial evidence that there was no other hypothesis save and except the guilt of the accused and the conviction could not be based on strong suspicion without legal proof. But in the present case, only one hypothesis is possible on the aforesaid chain of circumstances and that is accused Surjya had committed the offences under sections 302/201, IPC, and such chain of circumstances have been established by legal proof.

17. In the result, the conviction and sentence in respect of accused-appellant Surjya in the impugned judgment and order dated 3.9.1996 of the learned Additional Sessions Judge, West Tripura. Agartala, in Sessions Trial No. 31(WT/A)/94 is affirmed. The conviction and sentences in respect of appellants Nitya Hari and Gosthalal are set aside, and they are acquitted of the charges and they be set at liberty forthwith, if in custody. The appeal of the appellant Surjya is dismissed, and the appeals of appellants Nitya Hari and Gosthalal are allowed.