REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1499 OF 2007

Jiten Besra …. Appellant

Versus

State of West Bengal …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. By this appeal, accused Jiten Besra challenges the judgment of the  

High Court  confirming the judgment of  the Trial  Court  whereby he was  

convicted for the offence under Section 302, IPC and was consequentially  

sentenced  to  suffer  rigorous  imprisonment  for  life.   The  accused  Jiten  

Besra is said to have committed murder of one Nandlal Tudu and Mital  

Bala.  The deceased Nandlal Tudu was none else but the father-in-law of  

the accused, being father of Malati Besra, his wife. It is contended by the  

prosecution that on the fateful day, Malati along with her mother had gone  

to attend ‘Boul Song’ and she was also accompanied by her sister Parbati.  

When they came back at dawn on 21.05.1997, they found that both her  

parents i.e. Nandlal and Mital Bala were dead.

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2. A  written  complaint  was  lodged  by  Malati  in  Boro  Police  Station  

wherein it was alleged that one unknown miscreant might have killed her  

parents out of previous enmity.  The investigation ensued on the basis of  

this  First  Information  Report  and  the  investigating  agency came to  the  

conclusion that it was appellant Jiten Besra who was the perpetrator of the  

crime.  In support of it, the charge-sheet was filed and after the committal  

of  the  case  to  the  Sessions  Judge,  during  the  trial,  the  prosecution  

examined, in all, 15 witnesses which included Malati (PW-1), PWs-2 to 13,  

who were persons from locality, Partha Sarathi Dhar (PW-14), the doctor  

who conducted the postmortem of the bodies of the deceased persons and  

Ram  Narayan  Datta  (PW-15)  who  was  the  Investigating  Officer.   The  

defence of  the appellant  was  that  he was  being falsely  implicated and  

there was no evidence against him whatsoever.   

3. The defence did not prevail and the accused came to be convicted  

by the Trial Court relaying on the evidence of the prosecution witnesses.  

The High Court  dismissed the appeal  and that  is  how the  appellant  is  

before us.   

4. A glance at the High Court and the Trial Court judgments suggests  

that the Trial Court had relied on few circumstances as also the evidence  

of the prosecution witnesses.  The circumstances relied upon are:

(i) the presence of Jiten Besra in the village on the fateful night;

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(ii) strained relationship with his parents-in-law; and

(iii) the blood found on clothes.

The same three circumstances have been relied upon by the High  

Court also.  We must hasten to add that the circumstances on which the  

Trial Court and the High Court have relied upon are not clearly stated nor  

do we find any discussion on one very important aspect that in case of the  

circumstantial evidence the circumstances relied upon must be proved first  

and should not only point towards the guilt of the accused but they should  

be of such nature that no other inference except the guilt of the accused, is  

possible  thereupon.   We  have,  therefore,  to  examine  the  evidence  

ourselves from that angle.

5. Learned  counsel  appearing  on  behalf  of  the  appellant  has  

contended that even if all the three circumstances are taken to be proved,  

such inference of the guilt on the part of the accused is not possible.  The  

contention raised is that both the Courts below have erred firstly, in relying  

upon  the  unproved  circumstances  and  secondly,  even  the  witnesses  

examined including Malati were not sufficient to reach the only conclusion  

regarding the guilt of the accused.

6. The first witness Malati (PW-1) had barely stated about the strained  

relationship of her and her husband i.e. the accused as also between her  

deceased parents and the accused.  This witness was the author of the  

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FIR.  According to her, she had seen her husband to be present after she  

came back and realized that her parents were done to death.  She also  

asserted that his clothes were blood stained at that time.  Very strangely,  

however,  in  the  First  Information  Report  which  she  made  almost  

immediately, she had stated that one unknown person had committed the  

murder of her parents.  She also admitted that the FIR was written in her  

house and a number of persons were present there, including the accused.  

This was a very important piece of evidence, the relevance of which does  

not seem to have been realized by the Courts below.  Even as regards the  

so-called  enmity,  which  is  one  of  the  circumstances  held  against  the  

accused, she admitted that she could not remember any mis-behaviour  

committed by the accused towards her.  From her cross-examination, it is  

clear that the accused was on visiting terms to her.  This does not suggest  

in any manner that there was such a fierce enmity between the accused  

and  the  deceased  persons  or  even  Malati.   The  evidence  of  other  

witnesses like Santosh Baskey (PW-2) is of no consequence.  He is silent  

on the question of any enmity.  In fact he appears to be a scribe of the FIR.  

He also admitted that the accused was present when the FIR was being  

written.   However,  he  did  not  assert  anything  regarding  the  so-called  

enmity of the accused with the deceased persons.  All that he has asserted  

was  that  the  accused  had  strained  relationship  with  his  wife  and  his  

parents-in-law.  The evidence of Panchanan Baskey (PW-3) only asserted  

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that the clothes of the accused were soaked in blood and the relationship  

between the accused and his wife and his parents-in–law were strained.  

To  the  same  extent  is  the  evidence  of  Binod  Mandy  (PW-4),  Laxmi  

Hansda(PW-5),  Sarbeswar  Besra  (PW-6),  Balaram  Baskey  (PW-7)  

Haripada  Murmu  (PW-8),  Jagari  Tudu  (PW-9),  Ukil  Tudu  (PW-10)  

Khudiram Hembram (PW-11), Hapan Hembram (PW-12) and Durgacharan  

Hansda  (PW-13).   Beyond  saying  that  the  relations  were  strained  and  

further that the clothes of accused were blood stained, all these witnesses  

have stated nothing more.  None of them has, however, stated that the  

accused was not even on visiting terms.  On the other hand, their evidence  

suggests that the accused was on the visiting terms. Therefore, the first  

circumstance of enmity relied upon by the Courts below hardly cuts any  

ice.   In  fact,  that  could  not  have been relied  upon as an  incriminating  

circumstance at all.  It may be that the accused might be having strained  

relationship with the wife and her parents but it  is clear that he was on  

visiting terms with them.  He was working in some other village which is  

hardly about 15 kms. away from their village.  Under such circumstances,  

the  Courts  should  have  weighed  the  circumstance  as  to  whether  the  

strained relationship was of such fierce nature that the accused would go  

to the extent of committing murder of both the parents-in-law.

7. As  regards  the  blood  stains  on  the  clothes  of  the  accused,  this  

circumstance is of no consequence for the simple reason that the clothes  

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of the accused were never sent to the Forensic Science Laboratory.  That  

is the fact clearly admitted by PW-15, Ram Narayan Datta who was the  

Investigating Officer.  Therefore, the origin of the so-called blood allegedly  

found on the clothes of the accused was not known nor was it established  

that it was the blood of the deceased that was allegedly found on the Lungi  

of the accused.  This witness also admitted that initially Malati (PW-1) did  

not say anything against the accused person and it was only subsequently  

that  she  amended  her  statement  and  complained  against  the  accused  

which statement was much later i.e. on 24.05.1997.  Once it is established  

that the clothes of the accused or deceased persons were never sent to  

the Forensic Science Laboratory, it  is clear that nobody knew the blood  

group  of  the  accused  or  of  the  deceased  persons.   Under  such  

circumstances, that circumstance loses all its significance.  

8. The last circumstance relied upon by the Courts was the presence of  

the  accused  in  the  house.   There  is  no  evidence  collected  by  the  

prosecution that the accused alone was present in the hut.  On the other  

hand, it has clearly come in the cross-examination of the witnesses that his  

parents-in-law were not alone in the hut and in fact the younger brother of  

Malati was also present there.  This is apart from the fact that the mere  

presence  of  the  accused  in  the  village  by  itself  cannot  amount  to  an  

incriminating circumstance, particularly, when the witnesses have admitted  

that  he  was  on  the  visiting  terms with  his  parents-in-law.   At  least  no  

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witness denied that he was on the visiting terms.  Thus, in this case all the  

alleged  incriminating  circumstances  could  not  be  said  to  have  been  

established.   Once  that  was  clear  and  once  it  is  found  that  the  

circumstances could not point out towards the guilt of the accused, without  

any other inference being probable, the accused must get the benefit of  

doubt.   There  is  hardly  any  discussion  regarding  this  aspect  in  the  

judgments of the Trial Court as well as the High Court.  Those judgments,  

therefore, cannot be sustained.

9. Accordingly, we allow the appeal giving the benefit of doubt to the  

accused and acquit him of all the charges.  He be set at liberty forthwith  

unless required in any other offence.   

………………………………….J. (V.S. Sirpurkar)

…………………………………….J. (Surinder Singh Nijjar)

New Delhi; March 10, 2010.  

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