Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 564 OF 2005

Niranjan Panja … Appellant

Versus

State of West Bengal     … Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. The appellant by this appeal challenges his conviction ordered  

by the Trial Court and confirmed by the High Court.  He was tried for  

offence under Section 302, Indian Penal Code on the allegation that  

he had committed the murder of one Haripada Samanta on the night  

between 12-13th December, 1988 at Village Ghagra, Police Station  

Mahisadal at Sarberia. Charges were framed under Section 302 read  

with  Section  201,  IPC  against  Niranjan  Panja  and  one  Narayani  

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Parua.  Eventually, the second accused was acquitted of the offence  

under  Section  302  read  with  Section  201,  Indian  Penal  Code.  

However, accused Niranjan Panja alone came to be convicted by the  

Trial  Court  under  Section  302,  Indian Penal  Code and his  appeal  

having failed, he is before us.

2. A report came to be filed before the concerned Police Station  

by  one  Tapan  Kumar  Samanta,  who  was  the  son  of  the  victim,  

Haripada Samanta, that his father was killed and his body was lying  

in the narrow Khal.   He reported that he found number of injuries  

caused by a heavy sharp cutting instrument on various parts of his  

body including head and neck.  It was stated that in the morning of  

13.12.1988 at about 7 a.m. he got the information about his father’s  

dead body lying in a narrow Khal.  He stated that on the previous day  

in the morning his father had gone to Midnapore to look after the case  

of one Narayan Adhikari of their village and in the evening on that day  

he  himself  had  talked  to  his  father  at  Mahisadal.   At  that  time,  

Niranjan  Panja,  Narayan  Adhikari,  Sudhir  Maity  and Nirode  Kanta  

Bera were with him.  It was claimed that he came to know that on the  

previous  night  at  about  9  p.m.  his  father  consumed  liquor  with  

accused Niranjan Panja and Narayan Adhikari in the liquor shop of  

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one  Bholanath  Pal  and,  thereafter,  the  said  three  persons  came  

through the village pathway and while Narayan Adhikari went towards  

his house, his father and Niranjan Panja went back to their homes.  

However, Haripad Samanta did not return home.  On the basis of this  

complaint,  investigation was taken up by the In-charge of the said  

Police Station, Shri T.K. Tas, Sub-Inspector of Police.

3. The police also came to know during the investigation that there  

was some rivalry between the deceased and the accused Niranjan  

Panja  as  the  deceased  had  stopped  looking  after  the  cases  of  

Niranjan Panja for the last 5-6 months on which Niranjan Panja used  

to speak against the deceased.  The prosecution case is that it was  

on account of this that the accused had committed the murder.  The  

prosecution examined number of witnesses including the complainant  

son.  They were Ram Chand Bar (PW-2), Narayan Das Adhikari (PW-

3), Ranjit Samanta (PW-4), Sunil Kumar Samanta (PW-5), Kanai Lal  

Das (PW-6), Paresh Das Adhikari (PW-7), Smt. Sita Samanta (PW-

8), Rabindra Rana (PW-9), Amarendra Seth (PW-10), Dr. Ardhendu  

Bikas (PW-11) the medical officer, Hare Krishna Pramanik (PW-12)  

and Shri Tarun Kumar Das (PW-13).  The case proceeded only on  

the  circumstantial  evidence  as  there  was  no  eye  witness.   The  

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defence was that of denial.  The defence pointed out that there were  

major  discrepancies in  the  prosecution evidence like the  so-called  

weapon  Siuli  Katari was never produced before the Court  and the  

necessary witnesses were also not examined.   

4. Ms. Ranjana Narayan, the Amicus Curiae pointed out that the  

evidence in this case was extremely brittle.  She invited our attention  

to the findings of the High Court where the High Court had culled out  

ten circumstances.  She pointed out that out of these ten so-called  

circumstances, majority of them could not be viewed as incriminating  

circumstances.  By reference to the evidence of the witnesses, she  

pointed  out  that  the  most  substantial  circumstance  was  that  the  

deceased was last seen in the company of the accused.  She pointed  

out that, that circumstance was also not established and could not be  

viewed  as  an  incriminating  circumstance  inspite  of  the  so-called  

discovery  of  the  weapon  of  murder  which  was  neither  produced  

before the Court nor was identified by any of the witnesses.  She also  

pointed  out  that  the  so-called  blood  stained  Siuli  Katari was  not  

discovered by the accused.  Learned Counsel urged that non-existing  

circumstances were taken into consideration, for example, the report  

of the Serologist showed that the  Katari was blood stained but the  

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origin of that blood could not be detected nor was that weapon ever  

produced before the Court.

5. As  against  this,  Shri  Avijit  Bhattacharjee  supported  the  

judgment by saying that there was motive inasmuch as there was  

enmity  between  the  accused  and  the  deceased  and  it  was  the  

accused who was in the company of the deceased on the last day of  

his life i.e. on 12.12.1988 and that there was clinching evidence to  

suggest  that  it  was  the  accused  alone  who  accompanied  the  

deceased back to his home and, therefore, the accused was bound to  

explain on the basis of ‘last seen together’ theory.

6. We shall consider each of the circumstance relied upon by the  

High  Court.   The  High  Court  has  quoted  the  following  ten  

circumstances:-

“A.  PW-1 the son of deceased Haripada Babu came to  know that his father has been murdered on the previous  night (12.12.88) and his body was lying on a small canal  in Sarberia.  He informed his mother (PW-8), who in turn  informed  PW-4,  Ranjit  Samanta  his  uncle  and  some  neighbours and was also called by the village Chaukidar  (PW-2) and on reaching the spot he identified the dead  body of his father and PW-3 the Officer-in-Charge of the  local  Police Station.   He signed on the Inquest  Report  (Ext.1) and was also witness to the Seizure List (Ext.2) in  respect  of  the  wearing apparels  and penned down the  complaint (Ext.3).

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B. PW-1  learned  from  PW-3  Sudhir  Maity  (not  examined) and others that the Appellant used to speak  against  his  father  since  he  has  stopped  tadbirs  of  his  cases.

C. On 12.12.88 morning the father of PW-1 along with  PW-3 had gone to Midnapore in connection with a case  instituted by the latter and in the evening he found in the  tea  stall  of  one  Gautam  Manna  (not  examined)  near  Sahid  Minar  at  Mahisadal  bazaar  that  his  father  along  with  PW-3  and  the  appellant,  Sudhir  Maity  (not  examined),  Nirode  Kanta  Bera  (not  examined)  were  taking tea.  There he met his father and on his advice he  returned home after marketing.

D. After the murder of his father he (PW-1) heard from  PW-3 that after they were taking tea, PW-3, the appellant  and the deceased went to the liquor shop of Bholanath  Pal (not examined) at Garkamalpur and took liquor and  afterwards left  that  shop leaving beside Haripada Babu  and the appellant together.

E. PW-7 who was returning home in the night at about  9.30 in evening found that Haripada Babu, father of PW-1  was  standing  and  on  his  query  told  him  that  he  was  waiting since the appellant had gone to the house of his  uncle (PW-6).

F. The appellant came to the house of PW-1 after he  returned  home  witnessing  the  dead  body  of  his  father  lying by the side of the canal and advised him to lodge a  complaint  against  one  Haripada  Panja  and  Abinash  Panja, which we find corroborated from the evidence of  PW-10 also.

G. The  discovery  of  the  dead  body  of  deceased  Haripada Babu by the side of the canal and the Ext.6 the  post-mortem report, prepared by PW-11 show that death  

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was due to shock and haemorrhage which was homicidal  and ante-mortem in nature.  

H. The arrest of the appellant on the very next date of  the  incident  followed  by  the  statement  made  by  him  before  PW-13  which  led  to  the  recovery  of  the  blood  stained  Siuli  Katari under  a  Seizure  List  (Ext.4)  and  a  green coloured chadar and a white coloured dhoti under a  Seizure List (Ext.5) in presence of PW-5.

I. The evidence of PW-9 the village blacksmith, who  deposed that the appellant came to his shop and got a  Hansua sharpened  by  him  and  the  day  after  he  had  sharpened the  said  weapon he heard  that  a  man was  murdered and his body was lying on the side of the small  canal  of  Sarberia.   In  answer  to  the  Court  PW-9  the  village blacksmith said-

“Siuli Katari and Hansua are same thing.”

J. The Report  of  the  Serologist  (Ext.8)  shows blood  was  detected  in  the  Katari.   However,  since  it  was  disintegrated the origin could not be determined.”

7. The first circumstance ‘A’ that Tapan Kumar Samanta (PW-1)  

came to know about the death of his father and that his dead body  

was lying near the small canal in Sarberia can hardly be said to be an  

incriminating  circumstance  vis-à-vis  the  accused.   The  second  

circumstance  ‘B’  too  cannot  be  considered  as  an  incriminating  

circumstance as Tapan Kumar Samanta (PW-1) had never heard the  

appellant speaking against his father and he claimed that he came to  

know about  that  from Narayan  Adhikari  (PW-3)  and  Sudhir  Maity  

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(who  was  not  even  examined).   Therefore,  that  circumstance  too  

would go out of consideration.  Insofar as the third circumstance to  

the effect that the accused was seen in the company of the deceased  

at  Midnapore  can  hardly  be  said  to  be  a  circumstance  worth  the  

name.  It is alleged that the accused was seen taking tea with the  

deceased at Mahisadal bazar in the company of Sudhir  Maity and  

Nirode Kanta Bera and these persons have not been examined at all.  

Therefore, even if it is presumed that the deceased was taking tea  

with them in the evening, that would be of no consequence.  Insofar  

as the fourth circumstance ‘D’ is concerned, again, it is based on the  

hearsay evidence of Tapan Kumar Samanta (PW-1) that he heard it  

from Narayan Das Adhikari (PW-3) that afterwards the appellant and  

the  deceased  went  to  the  liquor  shop  of  Bholanath  Pal  at  

Garkamalpur  and  took  liquor  and afterwards left  the  shop leaving  

Haripada Samanta and the appellant together.  This circumstance, in  

our  opinion,  could  be  somewhat  relevant  as  it  established  the  

presence of the accused along with the deceased in the evening and  

the fact that he was in the company of the deceased.  However, we  

must point out here that the said liquor shop owner Bholanath Pal  

was  never  examined.   The  circumstance  ‘E’  is  also  of  no  

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consequence  as  Paresh  Das  Adhikari  (PW-7)  merely  saw  the  

deceased standing alone by the side of courtyard in front of his house  

at about 9.30 p.m. in the evening.  On his inquiry as to why he was  

standing there, the deceased is supposed to have answered him that  

he was waiting for Niranjan Panja since he had gone to the house of  

his  uncle,  Kanai  Lal  Das  (PW-6).   In  fact,  Kanai  Lal  Das  (PW-6)  

denied this fact that the accused had come to his place.  Therefore,  

even that circumstance is extremely suspicious.  As regards the sixth  

circumstance ‘F’, that the accused had gone to the house of Tapan  

Kumar Samant (PW-1) on 13.12.1988 and told him about his father  

lying  by  the  side of  canal  and advising  him to  lodge  a  complaint  

against  one  against  Haripada  Panja  and  Abinash  Panja,  we  will  

consider this circumstance later on when we examine the evidence in  

detail.  The circumstance at ‘G’ is the discovery of the dead body by  

the side of the canal.  That cannot be viewed against the accused  

unless  the  accused  is  connected  with  the  death.   The  next  

circumstance ‘H’ is that the accused was arrested on the next day  

and his arrest led to the recovery and blood stained Siuli Katari under  

a Seizure List (Ext.4) along with two other clothes, namely, a green  

coloured  chadar and a white coloured  dhoti.  Unfortunately, for the  

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prosecution this Siuli Katari was never brought before the Court.  It is  

said to have been lost and has never seen the light of the day before  

the Court.  This is apart from the fact that the proof of discoveries  

itself is doubtful.  The circumstance at ‘I’ is extremely strange.  Under  

that  Rabindra Rana (PW-9),  the village blacksmith is said to have  

seen the accused sharpening a  Hansua on the earlier  day of  the  

incident.   Neither  that  Hansua nor  the  said  Siuli  Katari had  been  

presented before the Court.  This witness also did not even see or  

identify the same.  The last circumstance ‘J’ is about the report of the  

Serologist showing that the Siuli Katari was having blood.  However,  

it is clear that the report does not say that it was human blood.  On  

the other hand, it was reported that the blood was disintegrated and  

the origin of the same could not be determined. Therefore, even this  

circumstance has to go out of consideration.   

8. The High Court has accepted the evidence on the recovery of  

the so-called weapon.  We fail to follow as to how the said discovery  

could  at  all  be  relied  upon  in  the  absence  of  the  weapon  being  

produced  before  the  Court.   Again,  the  High  Court  has  also  

commented upon the medical evidence of Dr. Ardhendu Bikash Das,  

the Medical Officer (PW-11) when he spoke about the injuries upon  

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the dead body being possible by Siuli Katari.  In the absence of Siuli   

Katari being seen by the doctor in the Court,  this evidence should  

have  been discarded.   It  seems that  the so-called  weapon  of  the  

offence was lost.  The High Court had also expressed its displeasure  

and directed that the circumstance under which the said weapon was  

lost  should  be  informed  to  the  Court  and  also  as  to  who  was  

responsible for the loss of the material weapon.  We do not see any  

traces about the same.  Therefore, the High Court has merely relied  

upon  the  said  discovery  made in  the  absence  of  Siuli  Katari and  

recorded under Section 27, Indian Evidence Act and the theory of  

‘last seen together’.  From this, the High Court has proceeded to hold  

that the chain of circumstances was complete against the accused  

and the only unmistakable inference of the same was in favour of the  

culpability of the accused.

9. We  have  already  pointed  out  as  to  how  the  so-called  

circumstances were totally innocuous or suspicious.

10. On  this  backdrop,  we  will  first  go  to  the  question  of  motive  

which has not been considered by the High Court  at all.   The so-

called  motive  as  deposed  by,  PW-1,  Tapan  Kumar  was  that  the  

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accused Niranjan Panja used to speak against  his  father  after  his  

father  stopped  looking  after  his  litigation.   It  appears  that  the  

deceased used to look after the litigation of number of persons and  

that  was  probably  his  profession.   We  do  not  think  that  merely  

because the deceased had stopped looking after the litigation of the  

accused, the accused had any strong motive much less to commit  

murder of the deceased. Motive is an important circumstance in the  

prosecution which is based on circumstantial evidence.  However, we  

do not see any such strong motive on the part of the appellant.  We,  

therefore, reject the theory that there was any motive much less any  

strong motive on the part of the accused so as to commit the murder  

of the deceased.   

11. In his evidence, PW-1, Tapan Kumar had suggested that on the  

fateful day in the evening he saw his father at the tea stall  of one  

Gautam  Manna  along  with  Niranjan  Panja  (accused),   Narayan  

Adhikari,  Sudhir  Maity  and Nirode Kanta Bera etc.   Most  of  these  

witnesses, barring Narayan Adhikari, have not been examined in this  

case.  Again, it will be very inconsequential even if the accused was  

in  the  company  of  the  deceased  as  there  were  number  of  other  

persons also who were having tea.  Tapan Kumar Samanta (PW-1)  

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then said that he learnt from Narayan Adhikari that, thereafter, all of  

them went to the liquor shop and took liquor.  We do not know as to  

how this evidence was allowed to be recorded because it is clearly  

inadmissible.   The  claim  of  Tapan  Kumar  Samanta  that  accused  

Niranjan Panja had come to his house, and advised him to lodge a  

complaint  against  Haripada  Panja  and  Abinash  Panja  was  also  

extremely suspicious as there was hardly any corroboration to this  

claim.  This witness also identified the blood stained dhoti and gangi  

baniyan.

12. The second witness was Ram Chand Bar (PW-2) who was a  

gate keeper in the Gram Panchayat.  There is hardly anything in his  

evidence which  is  incriminating except  that  he  had seized clothes  

from the dead body.  PW-3, Naryan Das Adhikari spoke about the  

deceased, himself and the accused being there and their consuming  

liquor at Bholanath Pal’s liquor shop.  He, however, claimed that at  

about 9 p.m. he parted way and proceeded towards left and Haripada  

and Niranjan proceeded towards right i.e. towards Sarberia.  It means  

that he was also in the company of the deceased till 9 p.m.  He had  

not stated about their taking liquor in his police statement which he  

had accepted.  He admitted that he and Haripada got down from the  

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bus at Mahisadal on return from Midnapore.  He also admitted that  

nobody had witnessed that he had parted company from Haripada  

and Niranjan at 9 p.m. on 12.12.1988.  He could not even tell as to  

how far Haripada and Niranjan went together.  He admitted that he  

parted way at a spot in Ghagra Mouza.  He further stated that the  

house of the deceased was barely five minutes walk away from that  

spot while the accused’s house was about half a mile.  It was also in  

the vicinity of the village itself.  The evidence of this witness would be  

of no consequence, particularly, because the prosecution in this case  

has not fixed the time of death and there is no evidence led to that  

effect.  Where the prosecution depends upon the theory of ‘last seen  

together’, it is always necessary that the prosecution should establish  

the time of death, which the prosecution has failed to do in this case.  

The evidence of Ranjit Samanta (PW-4) also is of no consequence.   

13. Sunil  Kumar  Samanta  (PW-5),  however,  was  a  witness  of  

discovery.  He claimed that he went to the house of Niranjan Panja  

along with  the  Panchayat member,  Harekrishna Pramanick,  where  

the seizure of a chadar, a cloth and a side bag made of cotton was  

made.   Accused  Niranjan  Panja  had  himself  brought  out  those  

clothes and then accused led them to the stack of loose earth under  

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the Banana tree by the side of canal and a  Hansua was recovered  

where it was kept concealed.  He had then claimed that a lady had  

brought out the weapon and the villagers informed them that she was  

the second daughter of Niranjan Panja.  He did not even identify that  

lady.  In his cross-examination,  it  was suggested that two articles,  

namely, the clothes were seized from the house of accused Niranjan  

Panja.   He  admitted  that  he  had  gone  to  Thana for  his  personal  

business  at  about  8-9  p.m.  and,  there  he  met  the  Investigating  

Officer.  The accused Niranjan Panja was also there.  Then he along  

with the Investigating Officer and accused Niranjan went to the house  

of  Niranjan.   He admitted that  there was no other  member of  the  

public in the jeep.  He had to admit in his cross-examination that he  

had not said to the Investigating Officer that as per the showing of the  

Niranjan, Hansua was recovered from beneath loose earth under the  

Banana tree.  Therefore, this can hardly be an evidence of discovery.  

For effecting a discovery, a statement has to be recorded on the part  

of the accused showing his readiness to produce the material object  

and it is only the part of the statement which is not incriminating and  

leads to discovery which becomes admissible.  The evidence of this  

witness  does  not  inspire  confidence  and  it  is  of  no  use,  more  

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particularly, because the so-called Hansua allegedly produced by the  

accused never saw the light of the day nor had the witness identified  

the same and the prosecution had also not  given any explanation  

whatsoever about the disappearance of this weapon.   

14. PW-6,  Kanai  Lal  Das  was  declared  hostile.   Paresh  Das  

Adhikari (PW-7) stated that he saw the deceased standing under a  

tree just by the side of the courtyard in front of his house and on  

being asked as to why he was standing there, the deceased said that  

the accused Niranjan had gone to Kanai Lal Das’s house and since  

he was not on talking terms with Kanai Lal, he did not go along with  

the accused.  He claimed that, thereafter, he went for answering the  

nature’s call and when he returned, he did not find Haripada there.  

The evidence of this witness does not inspire any confidence. Kanai  

Lal Das himself said that the accused did not go to meet him and  

nothing of this sort had ever happened.  This witness was declared  

hostile.   

15. The  evidence  of  Smt.  Sita  Samanta  (PW-8)  is  of  no  

consequence  because  she  did  not  know anything.   However,  the  

evidence of Rabindra Rana (PW-9) is very interesting.  He had seen  

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the accused sharpening the Hansua on the previous day.  This could  

hardly be a circumstance to be viewed against the accused as the  

said Hansua has not seen the light of the day.  Dr. Ardhendu Bikas  

Das (PW-11) was the doctor who had neither seen the Siuli Katari nor  

had fixed the time of death in the post-mortem report.  Hare Krishna  

Pramanik (PW-12) refused that anything was seized by police from  

the  house  of  Niranjan  Panja  in  his  presence.   He  was  not  even  

declared hostile.   The Investigating Officer’s  evidence too is of  no  

consequence, particularly, because the so-called theory of discovery  

has been disbelieved by us.   He had not  even executed the spot  

Panchnama from  where  the  so  called  Siuli  Katari was  allegedly  

procured by the accused.

16. In short, there is hardly any evidence in this case much less a  

clinching one to believe the theory that the accused had committed  

the murder.   

17. We are convinced that both the judgments of the Trial Court as  

well as the Appellate Court are incorrect judgments.  In this case, the  

prosecution  has  utterly  failed  to  prove  that  the  accused  had  

committed  the  murder  of  the  deceased,  Haripada Samanta.   We,  

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therefore,  allow  this  appeal  and  set  aside  the  conviction  of  the  

accused.  The accused shall be released forthwith unless required in  

any other offence.

………………………….J.  [V.S. Sirpurkar]

  ..………………………….J.    [Dr. Mukundakam Sharma]

New Delhi; May 14, 2010.

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