CENTRAL BUREAU OF INVESTIGATION v. ANANTAHARI JAMATIA AND ORS

Court: High Court of Tripura

Bench: HON'BLE MR. JUSTICE S. TALAPATRA,HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

Judgment date: 2020-12-22

Case summary

High Court of Tripura judgment dated 2020-12-22. CENTRAL BUREAU OF INVESTIGATION v. ANANTAHARI JAMATIA AND ORS. Read the judgment and case details on...

Judgment text

HIGH COURT OF TRIPURA AGARTALA CRL. APP 31 of 2017 Central Bureau of Investigation Office of the Head of Branch Anti-Corruption Branch Oakland, Shillong ---- Appellant(s) Versus 1. Sri Anantahari Jamatia, (Rifle Man, GD No-00060158 TSR) son of Sri Ramani Dayal Jamatia Vill: Sankatram Para, PO: Jampuijala, PS: Takarjala, Dist: Sepahijala, Tripura 2. Sri Dipak Tripura, (Rifle Man, GD No-98060452 TSR) son of Sri Bipin Chandra Tripura Vill: Taikumba, PO: Kalacharra Bazar Dist: South Tripura 3. Sri Narayan Ghosh (L/NK, GD No-97040845 TSR) Son of late Bipin Chandra Ghosh Vill: Noabadi, PO+PS: Jirania Dist: West Tripura ---- Respondent(s) For Appellant (s) : Mr. P. Saha, Adv. For Respondent(s) : Mr. S. Kar Bhowmik, Adv. Mr. Raju Datta, Adv. Mr. A. Bhattacharjee, Adv. Date of hearing : 01. 07. 2020 Date of pronouncement : 22. 12. 2020 Whether fit for reporting : YES HON‟BLE MR. JUSTICE S. TALAPATRA HON‟BLE MR. JUSTICE S. G. CHATTOPADHYAY Judgment & Order (S.

Talapatra, J) This is an appeal, by leave, under Section 378(2)(b) of the CrPC challenging the order of acquittal dated 05. 09. 2017 delivered in Case No. ST08(WT/A) of 2013, subsequently renumbered as case No. ST(T-1) 8 of 2013 by the Additional Sessions Judge, Khowai Tripura. [2] By the said judgment and order dated 05. 09. 2016, hereinafter referred to as the order of acquittal or the impugned order, the respondents were acquitted from the charge framed against them under Section 302/376/34 of the IPC. To be precise, the charge under section 302/34 of the IPC was framed against all the respondents for committing murder with common intention or for intentionally causing death of the victim (the name withheld for purpose of protecting her identity). The further specific charge was framed against the respondent No. 1 (Anantahari Jamatia) under Section 376 of the IPC for committing rape of the said victim on 15. 02. 2011, anytime after 2200 hours and before 11.

30/1200 hours at Hadraibari under Champahawar Police Station. The charges were denied by the respondents. They claimed innocence and to be tried in accordance with law. [3] On completion of the trial, the trial court (the court of Additional Sessions Judge) acquitted the respondents on observing inter alia as follows: 16. On my marshaling the above evidence of the prosecution witnesses from the aforesaid four groups I find that the theory of last seen together is not conclusive and is not proved beyond all reasonable doubt by the evidence of PW-1, PW-3, PW-4, PW-6, PW- 14 and PW-23. Now coming to the evidence of group-2 it appears that the Doctors i. e. PWs-10, 11 and 13 gave their opinion in a consensus that the cause of death of Nilima Debbarma was asphyxia following hanging which is suicidal in nature and there was no evidence of violence in and around of the private part of the deceased an no seminal stain or spermatozoa found from labia majora and labia minora. Even Dr. B.

K Mohapatra and Dr. T. D. Dogra affirmed it in their evidence that in his opinion this is a case of hanging which could be suicidal in nature. He further affirmed that the opinion as given in the last part of his report that the investigating agency is to be decide the manner of death after considering all other circumstantial evidence, was a mere suggestion and it was not a medico legal opinion. So having my due consideration to the above facts and circumstances I am of the view that prosecution failed to prove it beyond all reasonable doubt that the death of Nilima was homicidal in nature and the present three accused persons were involved in the commission of her death.

So far the charge under Section 376 IPC against the accused Anantahari Jamaita is concerned the evidence as derived from PW-10 and 13 is relevant because after gone through the SFSL report they opined as victim had vaginal delivery and spermatozoa and seminal stain was found in petticoat of deceased sexual offence cannot be ruled out. The above evidence of PW- 10 also affirmed by PW-13. Now, PW-15 Dr. B. K. Mohapatra who conducted the DNA test after collecting blood sample of the accused persons opined in his report that human semen was detected in Exhibit. D which is the petticoat of the deceased. He opined in his report that the DNA profile of Anantahari Jamatia (source of Exhibit. A bloodstain gauge) is consistent with one set of DNA profile generated from the male fraction DNA obtained from source of Exhibit. D (petticoat). 17. it is in the evidence that the deceased took drinks with accused Anantahari and others and the deceased was unable to take care of herself.

It is not in the evidence that there was any disputes/quarrel in the liquor party rather all were cordial in their party. The deceased was a deserted woman from her husband. She was economically not so solvent and she had her childrens. Over and above the deceased was not a minor. So in such a situation conduct is relevant. From the report of the medical officers it is clear that there was no forceful rape. Only the evidence on record is that semen was detected in the petticoat and it was matched with DNA profile of Anatahari Jamatia. In my considered view based on this DNA test it cannot be said that the prosecution able to establish their charge against accused Anantahari Jamatia for the offence under Section 376 of IPC.

” [4] The said opinion of the trial judge has been challenged by the appellant, Central Bureau of Investigation on the grounds as expressed in the memorandum of appeal viz; the order of acquittal is contrary to the evidence or records inasmuch as the evidence was not properly appreciated by the trial judge. The judgment based on which the order of acquittal has been passed is an outcome of surmise conjuncture and assumptions. [5] It has been asserted that the judgment is also bad for non-application of the circumstantial evidence which has been succinctly established by the prosecution. Thus, the trial judge has failed to appreciate the last seen evidence of two minor boys namely Shibjoy Debbarma (PW-4), Animesh Debbarma (PW-23), Sri Asangka Debbarma (PW-2) and Shila Rani Debbarma, Asangka‟s wife (PW-3). PWs 4 and 23 are the sterling witnesses in the prosecution case. PWs 4 and 23 had seen the respondent No.

1 taking the fully drunk victim by holding her shoulder at the late hours in the night after the liquor party organised in the house of Asangka (PW2) toward the paddy filed, instead of taking her by th4e regular pathway for going to the village of the victim. The respondent No. 3 (Narayan Ghosh) was seen to have been following them. The night was moonlit and therefore PWs 4 and 23 did not have any difficulty in identifying the respondents No. 1 and 3 and the victim. On the instruction of Asangka Debbarma (PW-2) those witnesses PWs 4 and 23 informed the parents of the victim. On search, which was carried out in the immediate hour, the victim was found hanging from a teak tree in the hillock near the paddy field. For purpose of hanging, pachra (the wearing apparel) was used. The major grounds as raised in the memorandum of appeal are that even though the chain of events in respect of last seen together was proved beyond reasonable doubt, the trial court did not rely on that evidence.

Moreover, presence of PWs 4 and 23 has been conclusively proved by PWs 2 and 3 and another witness, namely Atul Debbarma (PW-5). [6] The evidence of last seen together could not be dented by the defence and as such there cannot be any reasonable ground to disbelieve those two witnesses (PWs 4 and 23). Even PW-3, wife of Asangka Debbarma has corroborated PW2 substantively. PW 2 has categorically stated by corroborating PW 4 and 23 that the respondent No. 3 „catching‟ the shoulder of the victim who was drunk and could not properly walk was proceeding towards the paddy field. The opinion in this regard, as formed by the trial court, is grossly against the established canons of appreciation to hold that the theory of last seen together is not conclusive and is not proved beyond all reasonable doubt.

It has been further asserted to challenge the opinion in respect of the rape of the victim, inasmuch as the evidence of PWs 10, 11 and 13, the doctors who carried out the postmortem examination gave the further report by specifying that the cause of death of the victim is due to asphyxia as a result of hanging. The nature of death of hanging is suicidal. [7] In the further report, it was observed by the doctors in the case in hand that it was then in the hand of the agency to decide the nature of death after considering all other circumstantial evidence. It thus implied that the hanging might not be conclusively suicidal, if negated by the other circumstantial evidence. In para 23. 1 of the chargesheet, according to the appellant, the opinion of Dr. Dogra has been reported. According to Dr. Dogra‟s opinion, the head of Department of Forensic Medicine and Toxicology, the death in the case in hand could be due to asphyxia as a result of hanging by ligature.

Hanging is usually suicidal in nature, however, it is the prerogative of investigation to decide the actual nature of death after considering all other circumstantial evidence. The grievance of the appellant is that the trial court failed to appreciate both sets of forensic opinions indicating that the final result would depend on the circumstantial evidence to come to a definite conclusion, whether the death is homicidal or suicidal in nature. The said opinion was not read by the trial court along with the evidence led by the prosecution on the incriminating circumstances, else the trial court would have found the death of the victim by hanging on the teak tree was not suicidal but homicidal and was committed by the respondents. [8] From the evidence, it has been established that presence of the respondents No 1 and 2 has been established by PWs 4 and 23. Form the recovery of the torch light of the respondent No. 2, his involvement in the crime has been established.

“Dupatta” of the victim was recovered in “badly damaged condition” which shows that the victim offered resistance. Even external injury on the neck, thigh or on back of the deceased has been mentioned in the postmortem examination report. The way the wearing apparel has been used, according to the appellant, could not have been done by a person who was totally drunk and was not capable of walking properly. Some other circumstantial evidence, according to the appellant was overlooked by the trial court. Those elements are (a) the button of the victim‟s blouse was fond open and her woolen jacket was unzipped, (b) the recovery of the red torch light from the place of crime is indicative of that the offence was committed in desperation and in a hurried manner. The trial court has failed to question how the victim who was in inebriated condition would climb up the tree to fasten the wearing apparel to use the same for hanging.

Strangely enough, a plea has been raised that since the respondents denied to undergo the polygraph test, the adverse inference was required to be drawn against the respondents. Even though, the appellant has admitted that the apex court has held that no individual should be forcibly subjected to any of the technique in question whether in the context of investigation in criminal cases or otherwise. If done without consent of the person to be tested that will amount to an unwarranted intrusion into personal liberty. From the opinion of the expert of Central Forensic Science Laboratory (PWs 16 and 17) it can be gathered that the height of the tree in which the body of the victim was found hanging suggested that there was no possibility for the decease to hang herself from the said tree. [9] Serious objection has been taken by the appellant for discarding the DNA profiling whereby „sexual intercourse‟ between the respondent No.

1 and the victim who was in an inebriated condition has been proved. From the „material‟ related to the respondent No. 1 and the victim messed there cannot lead to any other finding other than that the sexual intercourse between the male and the female originators had taken place. Whether the rape was forceful or not that can only be determined by the evidence inclusive of the external or internal injuries suffered by the victim or by proving that the victim was not in a position to resist the perpetrator. Thus, the question of consent by the victim may not be of relevance in certain circumstances. If the sequences in the circumstantial chain which have been proved in the case in hand are crossly examined, it has to be inferred that the sexual intercourse was not consensual inasmuch the victim was in inebriated condition and she did not have the alert to resist the perpetrators. The finding acquitting the respondent no.

1 from the charge under section 376(1) of the IPC is grossly perverse and warrants to be interfered with. [10] Genesis of the prosecution case is rooted in the complaint filed by one Krishna Debbarma, the father of the victim on 19. 02. 2011 by disclosing that at about 10 o‟ clock on 18. 02. 2011, a boozing party was arranged in the house of Asangka Debbarma (PW- 2). Two TSR Jawans of TSR camp of Idengkur. J. B. School had gangraped his daughter. Even though the name has been disclosed in the said complaint dated 19. 02. 2011, but her name is withheld for protecting her identity. In the ejahar, it was disclosed that her daughter was missing and for that his wife and he had gheraoed the camp. The police brought her daughter dead from a nearby by jungle and left her in a field. It has been also disclosed that “two minor boys is the eye witnesses of the incident. They had seen by their own eyes while these TSR were taking away his daughter by holding her closely.

Based on the said complaint dated 19. 0. 2011, as is evident from the records Champahawar PS Case No. 7/2011 under Section 376(2)(g)302/301/34 of the IPC was registered and taken up for investigation. At one point of time, the state government transferred the investigation to the Central Bureau of Investigation (CBI). On completion of the investigation, CBI filed an elaborate final report vide the charge sheet No. 5 dated 27. 07. 2011 in the court of the of the Sub-Divisional Judicial Magistrate, Khowai, Tripura, under section 302 of the CrPC for commission of offence under section 34 read with sections 376/511/302 of the IPC and sending up the respondents for facing the trial. As the offence of rape or murder is exclusively triable by the court of sessions, the police papers were committed to the jurisdictional sessions court namely the court of the Additional Sessions Judge, Khowai, Tripura, as it then was.

(for purpose of convenience, the said court is referred to as the trial court hereinafter). [11] As already noted the charge was framed separately under section 302/34 of the IPC against all the respondents and the charge under Section 376 was framed only against the respondent No. 1. The respondents denied the respective charges to face the trial. It is apparent from the records that the prosecution, in order to substantiate the charge, adduced 28 witnesses including the complainant (PW-1) Asangka Debbarma (PW-2), Shila Rani Debbarma (PW 3), Shibjoy Debbarma (PW- 4), Sri Atul Debbarma (PW-5), Sri Animesh Debbarma (PW-23). That apart, 21 documentary evidence (Exbts 1 to 21) and some ancillary evidence (Exbts D1 to D2) have been adduced by the prosecution.

After the prosecution evidence was recorded, the accused persons were separately examined under section 313(1)(b) of the CrPC for having their response in respect of the incriminating materials that surfaced in the evidence as led by the prosecution. Thereafter, having regard to the arguments of the prosecution and the defence, the said order of acquittal has been passed. The said order of acquittal has been challenged in the grounds as briefly narrated hereinbefore. [12] Mr. P. Saha learned special counsel having appeared for the appellant, Central Bureau of Investigation (CBI) has submitted that a short revisit of the evidence would show that the findings of the trial court are grossly perverse as these findings are outcome of non-consideration of relevant evidence placed by prosecution.

Having referred the testimony of PW-1(Krishna Debbarma), father of the victim, he has stated that on the same night when his daughter did not return home till late night, two boys namely Shibjoy (PW-4) and Animesh (PW-23) came to his house and informed his wife that “two TSR jawans took…. (name of he victim withheld) towards jungle/paddy field. Shibjoy and Animesh also told that…. (the victim) who drinks with Asangka and Shila Debbarma. The two boys further informed that …….. (the victim) was drunken when she was taken by one Jawan followed by another”. [13] PW1 has also narrated that when they went to have information about his daughter, suddenly one Dipak Debbarma came out and told him that he could his trace out his daughter, provided he should not be implicated with any blame. PW-1 has further testified that while tracing out his daughter he saw Dipak Debbarma held his daughter from behind and two boys helping him to release his daughter from the lasso, hanging down from a tree.

His wife informed the matter to the Champahawar police Station. [14] PW-2 (Asangka Debbarma) had corroborated that the victim took part in the boozing party in his house. He had testified in the trial that he saw his wife Shila Debbarma (PW-3) and the victim drinking Rum with one TSR personnel, Anantahari Jamatia. On request of the victim, Anantahari Jamatia brought drinks from TSR camp. Another TSR jawan during that time followed him. That TSR jawan belonged to Bengali community. He as well took drink. Amongst other people, one Dipak Debbarma (PW-14) was in the party but after some time he left. PW-2 has confirmed the presence of PWs 4 and 23 at that place. He had asked them to find out whether the victim had reached her home safely. If she had not reached, he had asked PWs 4 and 23 to inform her parents. [15] Mr. Saha, learned counsel has submitted that when his first statement was recorded on 19. 02. 2011, PW2 did not disclose the name of PWs 4 and 23.

But the suggestions during the cross-examination contrary to what he has stated in the examination-in-chief has been squarely denied by him. Mr. Saha learned counsel has contended therefore that this independent witness has substantively proved the episode of the last seen together. [16] PW-3, wife of PW2, as referred by Mr. Saha has stated that the victim took drinks at her house. But as she fell asleep being drunk she did not notice anything more but presence of the victim, the appellants No. 1 and 3 has been corroborated by this witness. As it has been apparent, according to Mr. Saha, PWs-4 and 23 are the sterling witnesses of the prosecution. Mr. Saha, learned counsel has extensively referred from the testimonies of those witnesses. [17] PW-4 has testified that he was playing in the courtyard of Asangka Debbarma. He has stated that on taking drinks Shila (PW-3) became boozed and Anantahari (the respondent no1) catching hold ….. (the victim by name) went out.

After Anantahari departed with the victim, another TSR came and went along them but PW4 could not give the name of that TSR jawan. Then he went to the house of the victim to inquire whether the victim had reached or not. At that time parents of the victim accompanied him and Animesh who was all along with him to search out the victim. They found the dead body of the victim in hanging. Thereafter, he made the following statement: 1. Dipak Debbarma, cook of TSR jawan took us to the dead body of ….. (the victim by name) was drunk while Anantahair has taken her. ” PW4 identified the respondent No. 3. All the suggestions put to him in the cross examination were denied. [18] PW-6 (Smt. Nandarani Debbarma), mother of the victim has stated in the trial that she came to know from PWs 4 and 23 that Anantahari Jamatia (the respondent no. 1 ) and Narayan Ghosh (the responedent NO. 3) has taken her daughter towards jungle. Then along PWs 4 and 23 they started searching for their daughter.

On their way to search, they “noticed another TSR jawan namely Dipak Debbamra came out from the jungle, then Dipak Debbarma told them he could find out my daughter. Said Dipak Debbarma took us to my daughter where I find her in a hanging position. ” She lost her sense at the sight of her daughter hanging from the tree. Later on when she gathered sense she saw the dead body of her daughter which was brought down by Dipak Debbarma. She has stated that her daughter was estranged and she was living separately from her husband. She has also admitted that she did not mention the name of PWs 4 and 23 when her statement was recorded by the state police. She has also admitted that Dipak Debbarma assured them that he could take them to the dead body of her daughter provided he was not implicated in the said case, but the police did arrest him on the very night. Thereafter, she made the statement on which Mr.

Saha learned counsel has submitted that Dipak Debbarma had led them directly to the hillock and climbed up to the top. He did not search for the body in low line areas or paddy fields. On reaching at the top of the hillock, he pointed towards one tree and the body was hanging from that tree. The body was hanged by a red-colour pachra (the wearing clothes) of his daughter. Feet of her daughter were not touching the ground. But in the cross examination, PW-6 has further stated that she had stated to the CBI investigator that she learnt about her daughter being taken away by the respondents No. 1 and 3 from PWs 4 and 23. When she went to the police station may persons accompanied her. According to her, Dipak Debbarma (PW-14) was in uniform with rifle when she was found running. She has admitted that she did not state to the state investigator that on spot one torch was found. [19] PW-8 (Ajit Debbarma) had testified in the trial.

PWs 4 and 23 told him that the victim was accompanied by TSR jawans. He identified the inquest report which was prepared in his presence. [20] Mr. Saha learned counsel has submitted that PW-10 (Dr. Narendra Kumar Barman) has categorically submitted that there was ligature mark, ante mortem in nature, and the age of injury was fresh at the time of death. PW-10 has testified during his examination, inter alia as follows: “We the team of doctors held the PM examination reached in the consensus that in this case, death of …. ( the victim by name) was critical case of death by suicidal hanging. We came to conclusion mentioned in injury no. 1 and 2 and that it was death of suicidal hanging. ” [21] In this regard, Mr. Saha learned counsel has submitted that the trial court has failed to appreciate this evidence in the context of the inebriated condition of the victim. The trial court had similarly failed to appreciate the statement of PW 13, Dr.

Dipankar Kumar Bhowmik in respect of his opinion that there was no violence of in and around private parts and no seminal strain or spermatozoa found in labia majora and labia minora as per SFSL report and sexual offence cannot be ascertained. No juxtaposition with circumstantial has been considered. Mr. Saha learned counsel has submitted that trial court has failed to take note of the statement of PW 13 which reads as under: “As the victim has vaginal delivery, and spermatozoa and seminal stain was found in petticoat of her, sexual offence cannot be ruled out. ” [22] Mr. Saha, learned counsel has, thereafter, referred the testimony of PW-23, Animesh Debbarma who has categorically stated inter alia as follows: “Thereafter Asangka Debbarma also participated in the drinking with them. After finishing of liquor Anatahari Jamatia went to TSR camp and after few minutes he came back in the house of Asangka Debbarma with liquor.

After shortwhile Narayan Ghosh also arrived the house of Asangka Debbarma. All of them started drinking in the house of Asnagka Debbarma. Witness identified Anantahari Jamatia and Narayan Ghosh in the dock. At night about 10 p. m. after drinking accused Anantahari Jamatia left the house of Asangka Debbarma also with ……(the victim by name) by holding her and hand and another Narayan Ghosh followed them behind. Thereafter they proceeded towards jungle through the paddy field. On that day it was moonlight and I have seen that they proceeded towards jungle through the paddy and at that time Shibjoy was with me. When they are not visible then we informed about them to Asangka Debbarma. Asangka told to us to inform ….. ( the victim‟s) parents. Myself and Shibjoy went to the house of ….. ( the victim‟s) Father and informed them about the occurrence. Thereafter myself and Shibjoy and ….. ( the victim‟s) parents started for searching and proceeded towards jungle side.

During searching we found TSR cook namely Dipak there. Said Dipak also with us for searching ….. (the victim by name). During searching found ….. (the victim by name) hangng on a tree on the tilla. Then we with the help of Dipak (cook TSR camp) brought down the deadbody of ….. (the victim by name) from the tree and brought the deadbody to the field. Thereafter myself and Shibjoy informed about the occurrence to the local person and then came to our house. The witness identified the accused Anantahari Jamatia and Narayan Ghosh. [23] PW-23, in the cross-examination carried out for and on behalf of the respondent No. 3, has stated that on the following day of the occurrence he and Shibjoy were brought to the TSR camp. He has stated that he could identify the jawans involved. He has further stated that he could identify Narayan Ghosh next day in the TSR Camp where they were brought to.

[24] PW-24, Pranesh Kiran Chakma, the Officer-in-Charge, Chamapahawar police station who took charge of the investigation on the very day of occurrence has testified that on the place of occurrence one torch light was recovered from a place five meters away from the dead body by preparing the seizure list (Exbt-60). On the body of the torch light, the word “Dipak Debbarma” was written. But PW 24 being the investigation officer before the CBI took up the investigation has during the cross-examination clarified that Dipak Debbarma (PW14) was initially shown as the accused and forwarded to the Sub-Divisional Judicial Magistrate, Khowai on 21. 02. 2011 having reported that the said TSR jawan namely Dipak Debbarma was found loitering around the place of the occurrence. He has denied the suggestions that on the body of the torch light the name inscribed was not Dipak Debbarma but Dipak Tripura.

[25] PW-25, the investigating officer from the Central Bureau of Investigation has narrated how the investigation was carried out after the case was transferred to the CBI. Mr. Saha, learned counsel has referred the following part from the cross-examination: “I recorded the statement of Animesh Debbarma as per his version. This witness not stated to me that “I told them (parents) that the accused Narayan Ghosh also followed behind of Anatahari and Nilima)”. The witness also not stated that “we have seen Anantahari and Nilima while leaving from the house of Asangka Debbarma on that night accused Narayan Ghosh followed them behind. ” At this stage the witness volunteers that name of Narayan Ghosh was not disclosed by this witness. The witness namely Animesh Debbarma (PW. 4) did not state to me that “next day of the occurrence myself and Shibjoy were brought to TSR camp and shown the jawans involved.

I also told the same to CBI Officer that I could identify accused Narayan Ghosh next day in the TSR camp when we were brought there. ” It is fact that the entire statement u/s 161 CrPC name of Narayan Ghosh was not disclosed by the witness for a single occasion. Witness volunteers but there are some reference except some reference of Bengali. ” Mr. Saha has thereafter has succinctly referred to the PW 27 (Dr. T. D Dogra), Head of the Department of Medicine of Toxicology, All Indian Institute of Medical Science, New Delhi. He has clearly opined in the trial on perusal of post mortem report of the victim, SFSL repots and photographs taken in the place of occurrence that death in this case occurred due to asphyxia as a result of hanging by ligature. He has further opined as follows: “The hanging is usually is suicidal in nature however it is prerogative of investigating agency to decide the manner of death after considering all the other circumstantial evidence.

The viscera report was negative for common poison except ethanol. However, no quantitative estimation has been done. There was no effective cross examination on that aspect. PW28 (N. G Khamramg) took up the later part of the investigation from PW-25. Mr. Saha, learned counsel has relied and referred his assessment and analysis of the evidence which reads as “After proper assessment and analysis of the available evidence both oral and documentary, circumstantial evidence and aforesaid scientific evidence, investigation could established beyond reasonable doubt that the accused Anantahari Jamatia, Narayan Ghosh and Dipak Tripura had attempted to rape the deceased …(the victim by name) and thereafter she was murdered by hanging her body in the teak tree in the hillock nearby the paddy field with her wearing apparels “pachra‟ to make it look like suicide and accordingly the chargesheet dated 27. 07.

2011 was filed by me before this learned court against the aforesaid three accused persons for commission of offences punishable under Section 34 read with section 376/511/302 of IPC. ” [28] Mr. Saha has also referred to the post mortem examination report and the DNA profiling report. From the DNA profiling report Exbt-D, it appears that human semen that was detected on the petticoat was helpful in generating DNA profile. In the report of Central Forensic Science Laboratory CBIO New Delhi it has been unambiguously held that DNA prolife indicated Anantahari Jamatia as the profile that was gathered from source as Exbt-1A (bloodstained gauze) is consistent with DNA profile generated from the „male fraction‟ DNA obtained for source of Exbt-D (Petticoat), forwarded to the laboratory. When the DNA profile created from the blood stained gauze of Dipak Kumar Tripura (the respondent No. 2) and Dipak Debbama (PW14) and Narayan Ghosh [the respondent No.

3] was inconsistent with the DNA profile generated from the male fraction from the source of Exbt. D. Mr. Saha learned counsel, thereafter, referred to the Forensic Psychological Assessment Report prepared by Dr. Asha Srivastava (PW-16). PW16 has admitted the said report in the evidence (Exbt-7) In the said report, PW 16 had recorded their impression that the tree on which the body of the deceased was hanging suggested that there was no possibility for the deceased to hang herself from that tree. [29] In the behavioural assessment of the respondent No. 3 (Narayan Ghosh), PW 16 found the respondent No. 3 cooperative and answering the most critical question satisfactorily, he was not avoiding any conversation regarding the incident. He was very quick and comfortable in replying the question which were asked to him.

Thereafter, it has been observed by PW 16 as follows: “Narayan Ghosh was maintaining good eye contact throughout the assessment and his facial expression was relaxed on the issues about the death of …. (the victim by name). Many honest non-verbal behaviors were observed during the interview. He was not found threatened by the assessment interview and he was willing to undergo polygraph test. Narayan claimed that he was totally unaware of the crime under reference. ” [30] Finally, PW 16 has on the basis of forensic psychological assessment and behavioral analysis interview inferred that the statement of the respondent No. 3 regarding the death of victim “appears correct” but the same opinion was not garnered by PW 16 about the respondents No. 1 and 2. For that reason, the relevant part of the behavioural assessment of the respondent No. 1 is reproduced from the Forensic Psychological Report dated 24. 11. 2012 (Exbt-7) 9. 2.

3 Behavioral Assessment The Behavioral Analysis Interview of Anantahari Jamatia was conducted on 11. 04. 2012 at Agartala. During the interview it was observed that his answers were not rational and logical and his thought process was not clear. He was talkative and nervous body movement and facial expressions were noticed. Erratic or evasive or rapid posture change was adopted by the subject during the interview. During the Behavioral Analysis Interview Anantahari Jamatia denied his involvement in the death of ….. (the victim by name) and any knowledge of the crime under reference. He claimed that he had not intimate relation with the deceased. It was observed that Anantahari Jamatia was not cooperative and did not answer satisfactorily to most of the critical questions put to him. He was very nervous and uncomfortable in replying the questions which were asked to him. His attitude towards the interview was negative.

Anantahari Jamatia was not maintaining good eye contact throughout the assessment and he felt agitated on being asked about the death of ….. (the victim by name). He gave short answers and refused to elaborate anything in detail. He was found threatened by the assessment interview and declined to undergo any further scientific test. 9. 2. 4 Conclusion On the basis of Forensic Psychological Assessment and Behavioral Analysis Interview it has been inferred that the statement of Anantahari Jamaita regarding the death of ….. (the victim by name) appears deceptive. Jamatia is hiding the information about his role and knowledge with regard to the death of ……(the victim by name). [31] Let us also reproduce the assessment in respect of one suspect (Dipak Debbarma) and another accused (Dipak Kumar Tripura). Inference drawn by PW 16 in respect of the respondent No. 2 (Dipak Kumar Tripura) has been recorded in the following terms: 9. 3.

3 Behavioral Assessment The Behavioral Analysis Interview of Dipak Kumar Tripura was conducted on 11. 04. 2012. During the interview it was observed that his answers were not rational and logical. He was not found to be cooperative during the Forensic Psychological Assessment . Dipak Kumar Tripura stated the Anantahari Jamatia was taking …(the victim by name) towards jungle. He followed them for a short distance and requested him to return his red torch light but he did not give. He denied his involvement in the death of .. (the victim by name) and any knowledge about the crime under reference. He maintained poor eye contact during the interview. His attitude towards the interview was negative. Some deceptive non-verbal dishonest behaviors were observed during the interview. Frequent swallowing and rapid breathing was observed; and he was repeatedly yawing.

Restless foot and frequent leg movements revealed the subject‟s desire to wind up the interview at the earliest, as he felt threatened by the questioning and interview. He declined to undergo any further scientific test. 9. 3. 4 Conclusion On the basis of Forensic Psychological Assessment and Behavioral Analysis Interview it has been inferred that the statement of Dipak Kumar Tripura regarding the death of…. (the victim by name) appears deceptive. He is holding some information related to the death of …. (the victim by name). Inference drawn by PW 16 in respect of the suspect (Dipak Debbarma), PW-14 has been recorded in the following terms: 9. 4. 3 Behavioral Assessment The Behavioral Analysis Interview of Dipak Debbarma was conducted on 10. 04. 2012 at Agartala. During the interview it was observed that his answers were rational and logical. Dipak Debbarma was found to be cooperative and answered satisfactorily to the most critical questions put to him.

He was comfortable in replying the questions the most critical questions put to him. He was comfortable in replying the questions which were asked and no nervous body movement was noticed. He has actively participated in the interview and spoke clear enough to make understand version. Dipak Debbarma denied his involvement in the death of …(the victim by name) and any knowledge about the crime under reference. He maintained god eye contact and his facial expression were relaxed throughout the assessment. Many honest non-verbal behaviors were observed during the interview. He was not found threatened by the assessment interview and was willing to any further test. 9. 4. 4 Conclusion On the basis of Forensic Psychological Assessment and Behavioral Analysis Interview it has been inferred that the statement of Dipak Debbarma regarding death of …(the victim by name) appears truthful. [32] The testimony of PW 15, Dr. Braja Kishore Mahapatra has been emphatically referred to by Mr.

Saha, learned counsel appearing appellant. PW 15 a senor scientific officer in the Central Forensic Laboratory (CBL) has admitted the biological report (Exbt-5) in the evidence and stated that human semen that was detected on used for creating two different sets of male DNA profiles. The said profiles were preserved for further reference and later on, when from the blood samples of the respondent No. 1, the generated, those profiles were matched with the male DNA profile found on the Exbt-D. Such report (Exbt-6) has been PW-15. The other profiles as created from the bold the respondent No. 2 did not match. Finally, Mr. Saha, learned counsel having referred to the testimony of PW 14 (Dipak Kumar Debbarma) has contended that PW 14 corroborated presence of PWs 4 and 23.

Thereafter, he made the following statement: While I came in the camp at that time, I found one Dipak Tripura talking to Anantahari Jamatia and asking Anantahari whey he has gone far away and now why he has coming by running. Then I went to discharge urine in the side of front gate of the camp and found one old man rushing towards camp and when I asked the reason then the old man stated to me that our TSR people had taken his daughter. Then I also found two boys and one woman were coming. Then as per their request, I accompanied them to search the daughter of that old man then we all found the dad body of a woman in a jungle in a hanging condition in a tree. Then as per request of that lady I lay down the dead body of the hanging lady. Thereafter, I came to the camp and found Anantahari performing sentry duty in the front gate. Then Anantahari told me to change the uniform and wear the civil dress.

After reaching the camp, the camp in-charge take roll calls and during that time I stated all these thing relating to pulling down of a woman from a tree and also relating to arrival of others for the quest of the daughter of old man. Afterwards, Narayan Ghosh asked me what actually happened, I narrate him all the happenings. The two boys who came to search along with the lady and I found them playing in the courtyard of Asanka Debbarma when I first went in the house of Asangka [not filled up]. Debbarma. Following day morning, police arrested me. [33] Finally, Mr. Saha learned counsel has drawn attention to the statements made by the respondents No. 1, 2, and 3 during their separate cross-examination carried out under Section 313 (1)(b) of the CrPC. A rigorous attempt has been made to show that none of the respondents has explained when they left the company of the victim or in what circumstances the victim was hanged. For example, the respondent No.

3, Narayan Ghosh has stated he has been falsely implicated in the case and he has been chargesheeted without proper investigation. The similar stand has been taken by the respondent No. 2 (Dipak Kumar Tripura). The respondent No. 1 (Anantahari Jamatia) had followed the same suit but he has denied his presence in the house of PW-2 (see answer to the question No. 20). Even he has denied that he left in the company of the victim towards jungle when he was asked to respond to such statement made by PW23 (see the answer to the question No. 86). Finally, he has stated that he did not have any idea how the victim died. Even he has denied his semen on the petticoat of the victim when he was asked to respond to the finding of PW28 (see answer to the question no 98). He has alike other respondents, denied involvement in the death of the victim and reiterated his innocence in the matter. [34] Mr.

Saha, learned counsel, in order to buttress his argument as noted above has relied on a few decisions of the apex court which this court would appreciate having regard to the relevance and the context of the case. In Gambhir vs. State of Maharashtra reported in 1982 CRI. L. J. 1243, the apex court has observed that the court has to draw its conclusion on the basis of the materials supplied by the expert opinions, but the court cannot take up the functions of an expert. If the probable time of death is established on evidence and the time when the accused was last seen in the company of the victim is not distanced by a long gap, those pieces of evidence would stand to show the involvement of the accused unless such evidence is rebutted by the positive evidence.

Ordinarily, it is difficult to hold that the accused is guilty of the crime, if there appears a long gap between the accused seen with the victim and the time of death, if three conditions viz; (1) the circumstances form which an inference of guilt is sought to be drawn must be cogently and firmly established, (2) those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused (3) circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that human probability the crime was committed by the accused and none else, are satisfied. The circumstantial evidence can be made the basis of conviction. But the suspicion cannot take place of evidence. The relevant part as referred by Mr Saha learned counsel for the appellant from Gambhir vs. State of Maharashtra (supra) is reproduced hereunder: “9.

It has already been pointed out that there is no direct evidence of eye witness in this case and the cause is based only on circumstantial evidence. The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.

The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the light of the legal position about the circumstantial evidence, we have to examine whether the circumstantial evidence in the instant case satisfies the requirements of law. The circumstantial evidence in the instant case may be broadly classified into three parts; (1) oral evidence to prove that in the absence of Namdeo, the accused used to visit the house of Laxmi regularly and he was seen in the evening of 26th of February, 1975 in the company of Laxmi and her children. He was also seen at about 10. 00 p. m. the same night in the company of Laxmi under a neem tree in the village. At midnight he was again seen going along the way near the house of Babulal, (2) the Various recoveries most of them at the instance of the accused and (3) medical evidence. ” [35] Mr.

Saha, learned counsel has as well placed reliance on decision of the apex court in State of Punjab vs. Gurmit Singh and Others reported in 1996 CRI. L. J 1728 for a very limited purpose as it is well known that the said report has exposited the law relating to the evidentiary value, requirement of corroboration and conventional approach in respect of the testimony of the rape victim. In State of Punjab vs. Gurmit Singh, the apex court had severely criticized the casual approach of the trial court in appreciating the report of the chemical examiner and forsaking the same. It has been held in the said report as follows: “10. The trial court totally ignored the report of the Chemical Examiner Ex. PM, according to which semen had been found on the slides which had been prepared by the lady doctor from the vaginal secretions from the posterior of the vaginal fornix of the prosecutrix. The presence of semen on the slides lent authentic corroboration to the testimony of the prosecutrix.

This vital evidence was foresaken by the trial court and as a result wholly erroneous conclusions were arrived at. Thus, even though no corroboration is necessary to rely upon the testimony of the prosecutrix, yet sufficient corroboration from the medical evidence and the report of the chemical examiner is available on the record. Besides, her statement has been fully supported by the evidence of her father, Tirlok Singh, PW6 and her mother Gurdev Kaur, PW7, to whom she had narrated the occurrence soon after her arrival at her house. Moreover, the unchallenged fact that it was the prosecutrix who had led the investigating officer to the Kotha of the tubewell of Ranjit Singh, where she had been raped, lent a built-in assurance that the charge levied by her was "genuine" rather than "fabricated" because it is no one's case that she knew Ranjit Singh earlier or had ever seen or visited the kotha at his tubewell. The trial court completely overlooked this aspect.

The trial court did not disbelieve that the prosecutrix had been subjected to sexual intercourse but without any sound basis, observed that the prosecutrix might have spent the "night" in the company of some "persons" and concocted the story on being asked by her mother as to where she had spent the night after her maternal uncle, Darshan Singh, came to Nangal-Kalan to enquire about the prosecutrix. There is no basis for the finding that the prosecutrix had spent the night in the company of "some persons" and had indulged in sexual intercourse with them of her own free will. The observations were made on surmises andconjectures - the prosecutrix was condemned unheard. ” [36] B. C. Deva alias Dyava vs. State of Karnataka reported in 2007 AIR SCW 4857 has been relied oon by the counsel for the appellant to get his argument nourished in respect of forceful sexual intercourse vis-‡-vis the absence of marks of external injuries.

It has been held in the said report that the plea that no marks of injuries were either found on the person of the accused or on the person of the prosecutrix does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. The report of gynecologists pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even, in the absence of any corroboration of any medical evidence, the oral testimony of the prosecutrix which is found to be cogent, reliable, convincing and trustworthy [in the case of the report] has to be accepted. Mr. Saha, learned counsel has not failed to refer that on the petticoat (Exbt-D) as marked by FSL there was seminal strain which was proved to be of the respondent No. 1 by DNA profiling. Thus, the said piece of evidence cannot be discarded or forsaken taking a casual approach. [37] Mr.

Saha, learned counsel appearing for the appellant in order to contend that absence of external injury on the person of the victim cannot be inferred as that the incident had taken place with the consent of the victim. He has relied on another decision of the apex court in State of Madhya Pradesh vs. Preetam reported in AIR 2018 SC 4212 where it has been succinctly observed, having restated the law as exposited in B. C. Deva alias Dyava vs. State of Karnataka (supra). For purposed of reference, the following passage is reproduced hereunder: “(9) It is fairly well-settled that in the absence of external injury on the person of the prosecutrix, it cannot be concluded that the incident had taken place with the consent of the prosecutrix. It depends upon the facts and circumstances of each case. In B. C. Deva alias Dyava v.

State of Karnataka, (2007) 12 SCC 122, this Court has held that absence of injury on the person of the victim of rape does not lead to an inference that the accused did not commit forcible sexual intercourse. It was further held that even in the absence of external injury, the oral testimony of the prosecutrix that she was subjected to rape, cannot be ignored. ” [38] Mr. R. Datta, learned counsel appearing for the respondent No. 1 has in order to repel the submission of Mr. Saha, learned counsel appearing for the appellant has, at the outset, submitted that surmise cannot take place of legal evidence. According to Mr. Datta, presence of PWs 4 and 23 in the house of PW-2 is shrouded by suspicion inasmuch as the evidence in that regard has tinge of improvement in the trial and the statement of the witnesses are incongruous. Thus, their testimony in respect of last seen theory in the prosecution case is unreliable. That apart, Mr.

Datta, learned counsel has submitted that when the victim was purportedly being taken towards the paddy field/jungle nobody forbade the respondents No. 1 and 3. According to Mr. Datta, the presence of spermatozoa on petticoat of the victim cannot be used as proof in respect of presence of the respondent No. 1 in the place where the handed body of the victim was discovered. Even it is not decisive evidence for coming to finding on rape as defined under Section 375 of the IPC. [39] According to Mr. Datta, learned counsel the trial court has noted categorically and observed that the prosecution has failed to complete the chain beyond all reasonable doubt in respect of last seen theory. It has been further observed if the evidence of PWs 4 and 23 is believed then it has to be believed that the respondent No. 1 and the victim were proceeding towards jungle.

According to him, the dead body of the victim hanging from the tree was discovered by PWs-1, 6, 4 and 23 as per the evidence as recorded. But while appreciating the evidence holistically, the presence of PW-14 nearby the place of occurrence in such wee hour of night was slighted without any reason even though having noted that PW14 was initially booked in the case. [40] Mr. Datta, learned counsel has clearly submitted that there is not eye witness and the case of prosecution rest indisputably on circumstantial evidence. Mr. Datta, learned counsel has further submitted on discussing the evidence briefly that the trial court has corrected conclusion that reached in all human probability the crime cannot be held to have committed by the accused or it is not a case where no other hypothesis other than that of the guilt of the accused can be drawn. Mr.

Datta, has further submitted that even though the trial court has observed that there are some omissions which are extremely vital and as such this amounts to contradiction. ” If these statements are left from the entire statement given by the witnesses in fact there remains no evidence by which the witnesses can be saved to advance the cause of justice. For example from the cross examination, it has been pointed out that PW 2 did not state in his statement recorded by the CBI investigators that he did not state the name of PWs 4 and 23 to them. ” [41] Mr. Datta, learned counsel has referred that the trial court has observed that PW 10 and two others doctors were associated in conducting postmortem of the deceased (PWs 11 and 13).

They have made their observation that cause of death was asphyxia following hanging which is suicidal in nature and as there is no evidence of violence in an around the private part and nor seminal stain of spermatozoa found in the biological sample collected from labia majora as per the SFL report, and hence no sexual offence cannot be ascertained. Thus, Mr. Datta, learned counsel has submitted that appreciation of the evidence has been carried out in the appropriate manner. Further, Mr. Datta, learned counsel while defending the judgment of the trial court has submitted that assumption cannot take place of evidence. Mr. Datta, learned counsel has emphatically stated that no adverse inference can be drawn from denial to undergo polygraph test as the Article 20 of the Constitution of India prohibits self incrimination. [42] To support his contention, Mr. Datta, learned counsel has relied on few decisions of the apex court. In Abinash Chandra Bose vs.

Bimal Krishna Sen and Another reported in (1963) 3 SCR 564 : AIR 1963 SC 316 where it has been held that in an appeal from the order of acquittal, the high court is competent to take a different view on the evidence, if the facts and circumstances placed before it would lead to the conclusion that the appreciation of the evidence by the trial court was so thoroughly erroneous that was wholly unacceptable to the appellate court. The high court in similar circumstances can reverse the judgment and order of acquittal and may pass the judgment of conviction but cannot push the accused “to a second trial on the ground that the prosecution did not adduce all evidence. ” Dattta, learned counsel has further referred to a apex court rendered in State of Goa vs. Sanjay Thakran and Another reported in (2007) 3 SCC 755 for relying on the passages as reproduced hereunder: 14.

By a series of decisions, this Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations of the appellate court, and while dealing with appeal against order of acquittal this Court observed in Tota Singh and Another v. State of Punjab, (1987) 2 SCC 529 as under: "6….. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse.

Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous. " 15. Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225: "7. …This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable.

While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. ” and in State of Rajasthan v. Raja Ram, (2003) 8 SCC 180: "7. ……There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal.

The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re- appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. [See Bhagwan Singh v. State of M. P. , (2002) 4 SCC 85].

The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484. " 16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse.

Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with. ” Reference has been made to Arulvelu and Another vs. reported in (2009) 10 SCC 206 where the apex court has that unless the judgment of the trial court is found perverse, the appellate court would not be justified in substituting its own view and reverse the judgment of acquittal.

Even if, two views favouring the conviction and other favouring the acquittal the trial court judgment of acquittal should not be for the reason that the appellate courts view is more probable. The appellate court would not be justified in setting aside the appellate court judgment of acquittal unless it is either perverse or wholly unsustainable in law. The apex court in Arulvelu (supra) has dwelled on the meaning and contours of perverse finding. It has been observed in Arulvelu (supra) as follows: 24. The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad : (2001) 1 SCC 501 this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity. 25. In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd.

AIR 1966 Cal 31, the Court observed that `perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. CCE : AIR 1994 SC 1341, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. 26. In M. S. Narayanagouda v. Girijamma : AIR 1977 Kant 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. 30. In Moffett v. Gough: (1878) 1 LR 1r 331 the Court observed that a “perverse verdict” may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v.

Godfrey 106 NW 814, the Court defined “perverse” as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. 27. The expression "perverse" has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner's Dictionary of th Current English 6 Edn “Perverse- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 2. Longman Dictionary of Contemporary English - International Edn. Perverse: Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English - 1998 Edition Perverse: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edn. ) Perverse: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. 5.

Stroud's Judicial Dictionary of Words & th Phrases, 4 Edn. Perverse: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. ” 28. In Shailendra Pratap & Another v. State of U. P. (2003) 1 SCC 761, the Court observed thus: “8…. "We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity. " 29. In Kuldeep Singh v.

The Commissioner of Police (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. " 30.

The meaning of `perverse' has been examined in Excise and Taxation Officer-cum- Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, this Court observed as under: "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute.

The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.

" [Emphasis added] Further, it has been observed in Arulvelu (supra) that the high court as the appellate court while examining the judgment of will always give proper weight on consideration to such matters such as (1) the views of the trial judge as the credibility of witnesses (2) the presumption of innocence in favour of the accused, a presumption will certainly not weaken by the fact that he has been acquitted in the trial (3) the right of the accused to any benefit of any doubt (4) the slowness of trial court in disturbing a finding of fact arrived at by a judge who had advantage of seeing the Reference has also been made to another decision of the apex court in Nizam and Another vs. State of Rajasthan reported in (2016) 1 SCC 550 which report deals with last seen theory as the important link in the chain of circumstances. It has been held in the (supra) as under: “14.

The courts below convicted the appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the appellants on 23. 01. 2001. Undoubtedly, last seen theory is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The last seen theory holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on last seen theory. Last seen theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 15. Elaborating the principle of last seen alive in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- 23. It is not necessary to multiply with authorities. The principle is well settled.

The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution.

It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd. , In Re. (AIR 1960 Mad 218) The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 11 SCC 178. ” [Emphasis added] [47] Mr. S. Kar Bhowmik, learned counsel appearing for the respondents No. 2 and 3 has clearly submitted this appeal against the judgment of acquittal should be thrown out at the threshold inasmuch the appellant has failed to show any ground for interference. The appellant has failed to make out any case to show that appreciation of the evidence is perverse and the acquittal is outcome of such perverse appreciation of evidence. Moreover Mr.

Kar Bhowmik, learned counsel has submitted on appreciation of the evidence that it is apparent that there is no eye witness of the alleged crime nor is there adequate circumstantial evidence forming a chain completely destroying the hypothesis of innocence. The last seen theory, even if is considered relevant but it leads nowhere, as PW-14 was seen loitering around the place of occurrence in suspicious manner. For that reason, he was booked but later on, he was relieved of the criminal liability. But he has been cited and adduced as the prosecution witness to link certain circumstances relating to the alleged occurrence. [48] Mr. Kar Bhowmik, learned counsel in order to dilate his submission has submitted that inadmissible evidence has been placed by the prosecution in order to make out a probable case against the accused person. Mr. Kar Bhowmik, learned counsel has further contended that identification of the respondent No. 3 (Narayan Ghosh) is quite shrouded.

Even PW 2 did not disclose his name to the police before 19. 02. 2011, even he did not identify the respondent No. 3 in the trial. He has categorically stated that PWs 2 and 3 cannot be believed for any purpose as the trial court has correctly discarded their testimonies. [49] According to Mr. Kar Bhowmik, learned counsel, PW 2 did not state any thing against the respondent No. 3 nor had he identified him in the trial. However, PW-23 has stated in the trial that the respondent No. 3 did follow Anantahari and the victim. At the same time he has stated that he saw the respondent No. 1 and the victim leaving the house of PW2. When the attention of PW 23 was drawn to the statement that he made on 10. 09. 2013 to the CBI officer, he could not show any such statement, but he has asserted that he had disclosed the name of respondent No. 3 to the parents of the victim on that night.

PW 25 one of the CBI investigators had confirmed in the trial that PW-23 did not state to him that he told the parents of the victim that the respondent No. 3 did follow the respondent No. 1 and the victim. Even PW 23 did not state to the parents of the victim that he saw the respondent No. 3 following the respondent No. 1 and the victim. Even PW 23 did not state to PW 25 that on the next day of the occurrence he and PW 4 were brought to TSR camp and they had shown the jawans involved in the occurrence. Even he did not state to the PW 25 or to the CBI Officers that he could identify the respondent No. 3 on the next day in the TSR Camp when they were brought there. [50] Mr.

Kar Bhowmik, learned counsel has submitted that the opinion-evidence has sprung surprise inasmuch as the opinion of the team of the doctors even though categorical and there is no different opinion in respect of the cause of death of the victim but the appellant has insisted that the opinion of PW 27 has superseded the opinions of PWs 10 (Ranendra Kumar Barman), PW 11 (Dr. Dhananjoy Reang) and PW 13 (Dr. Dipankar Prasad Bhowmik). At this juncture Mr. Kar Bhomik, learned counsel has referred to this court, the confirmation that has been made by PW 13 by making the following statement: “We had a consensus opinion that the death was a typical cause of death by suicidal hanging” [51] Therefore, the charge in general under section 302 of the IPC cannot sustain but the appellant who had sought to override this definite medico legal opinion has taken materials either from the testimony of PW 27, Dr. TD Dogra. But PW 27 did not also differ with the opinion of PWs 10, 11 and 13.

According to him, that was case of hanging which could be suicidal in nature. But he had added the following opinion. “However it is the prerogative of the investigating agency to decide the manner of death after considering all other circumstantiary evidences. ” [52] According to Mr. Kar Bhowmik, learned counsel appearing for the respondent No. 2 and 3 that was a mere suggestion and it was not a medico legal opinion. Mr. Kar Bhowmik, learned counsel has further submitted that from the testimony of PW 12 it would be apparent that the respondent No. 3 was all through in the camp. He has further stated that in the Aidankur TSR Camp there were 10-12 Bengali jawans. Bengali can not be any definite pointer to establish that none but respondent No. 3 was involved in commission of the alleged crime. PW 14 did not also state anything against the respondent No. 3. Moreover, he has asserted that he did not state that he did not find Narayan Ghosh or the sentry.

Even PW 14 has denied that he had found two boys playing in the courtyard of PW 2. He has denied the presence of the respondent No. 3 in the wine party in the house of PWs 2 and 3. In respect of the opinions of PW 15 (Dr. Dipti Mahaptara), PW 16 (Dr. Asha Srivastav) and PW 17 (Dr. Amod Kumar Singh) it has been stated that those psychological profilings do not form substantive evidence, inasmuch as the assessment that takes place is deeply impacted by the circumstances when such assessment is made. [53] Mr. Kar Bhowmik, learned counsel having referred to the forwarding report, content of which has been reflected in the order dated 31. 07. 2015 in the stage of investigation where it has been recorded that PW 14 was last seen with the victim. Even, Mr. Kar Bhowmik learned counsel did not fail to take this court to the statement of Narayan Ghosh made to PW 16 that he was ready to undergo the polygraph test. Further, Mr. Kar Bhowmik, learned counsel appearing for the respondent No.

2 and 3 has submitted that there is no evidence against the respondent No. 2 at all, even the appellant has failed to focus on any such evidence. Despite that the appeal has been filed against him. When there is no proof againsts the respondent No. 2 and 3, particularly against the respondent No. 2 to the effect that he was last seen with the respondent No. 3. The respondent no. 3 cannot have any onus to provide a reason or explanation as to the cause of death. Since the respondent No. 3 has categorically pleaded that he has no knowledge how the victim died he has no obligation to explain. Therefore, no adverse inference can be drawn against the respondent No. 3. In support of his contention, Mr. Kar Bhowmik learned appearing for the respondents No. 2 and 3 has relied on some decisions of the apex court. From Krishnan vs. State reported (2008) 15 SCC 430 the following passages have been pressed into 15.

Before adverting to the above-stated arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offences and the prosecution case entirely rests on circumstantial evidence.

This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Gambhir v. State of Maharashtra (1982) 2 SCC 351 : See also Rama Nand v.

State of Himachal Pradesh (1981) 1 SCC 511, Prem Thakur v. State of Punjab, (1982) 3 SCC 462, Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, Gian Singh v. State of Punjab, 1986 Suppl. SCC 676, Balvinder Singh v. State of Punjab (1987) 1 SCC 1. 16. As far back as in 1952 in Hanumant Govind Nargundkar v. State of M. P. [AIR 1952 SC 3443], it was observed thus: "10……It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " 17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned must or should and not may be established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 18. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A. P. (1996) 10 SCC 193, wherein it has been observed thus: "21.

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " In Sashi Jena v. Khadal Swain : (2004) 4 SCC 236], this Court again reiterated the well-settled principle of law on circumstantial evidence. ” [Emphasis added] [55] Kailash Gour and Others vs. State of Assam reported in (2012) 2 SCC 34 has been p

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