Calcutta High Court (Appellete Side)
Tapas Das Kabiraj And Ors vs The State Of West Bengal on 16 March, 2026
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Rai Chattopadhyay
CRA 607 OF 2016
With
CRAN/2/2020
Tapas Das Kabiraj and Ors.
Vs.
The State of West Bengal
For the Appellant Nos. 1, 2 & 4: Mr. Apurba Kumar Datta
Ms. Sreemoyee Mukherjee
For the Appellant No.3: Mr. Kallol Mondal, Senior Advocate
Mr. Krishna Ray
Mr. Souvik Das
Mr. Anamitra Banerjee
Mr. Akbar Laskar
Mr. Sreyash Kumar Singh
Ms. Moupiya Chakraborty
For the State: Ms. Rituparna De Ghosh
Ms. Nahid Ahmed
Judgement Reserved on: 12.03. 2026
Judgment on: 16.03.2026
Rajasekhar Mantha, J.:
1. The subject appeal is directed against the judgment of conviction
dated 9th August, 2016 and order of sentence dated 10th August, 2016
passed by the Additional Sessions Judge, Birbhum at Rampurhat in
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Session Trial no.01/ June/2012 arising out of Sessions Case no.50 of
2012.
2. The appellants were sentenced to life imprisonment and also to pay
a fine of Rs.5000/- each for the offence under Section 302 read with
Section 34 of the Indian Penal Code. In default thereof, to further suffer
rigorous imprisonment for period of one year.
3. The appellants were also sentenced to suffer rigorous imprisonment
for seven years each and to pay a fine of Rs. 3000/- for offence punishable
under Section 201 read with Section 34 of the Indian Penal Code. The
sentences were to run concurrently.
THE PROSECUTION CASE AND THE EVIDENCE ON RECORD:-
1. Dulal Das Kabiraj, PW 1, filed a complaint with Margram Police
Station, Birbhum on 16th December, 2011, based on which FIR no.
113/91 was registered. The complainant stated that his nephew Tapas
Das Kabiraj, appellant no.1, had informed him in the morning of 16 th
December, 2011 that the victim Sadananda Das Kabiraj had died. The
complainant, PW 1, also stated in his complaint that he suspects that
his nephew, son of victim, had killed the victim.
2. When PW 1 thereafter went to see the victim at his house he stated in
the complaint that he found the victim lying in the bathroom of the
house with his head cut off. On the arrival of the police at the P.O, they
found that the victim was lying in the toilet of his house with his throat
slit.
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3. Inquest was conducted at the PO between 8:15 a.m. and 9:35 a.m.
on the date of occurrence against the U/D case. The Inquest officer,
PW 13, found the throat of the victim cut and blood stains on his body,
hand, and chest.
4. The inquest witnesses stated that the victim was murdered by his son
(appellant no.1) and daughter-in-law, Kalpana Das Kabiraj. The
appellants including Tapas Das Kabiraj, Kalpana Das Kabiraj and
Uttam Das son-in-law were arrested on the same day. Appellant,
Manasi Das, the daughter of the victim was arrested later.
5. Investigation was completed and charge sheet was filed. Charges were
framed by the trial judge against the two appellants and also against
Kalpana Das Kabiraj, wife of appellant no.1 and Manasi Das, the wife
of appellant no.3 under Sections 302 read with Section 34 and
Sections 201 of the IPC.
6. PW 1 proved the complaint signed by him and stated that it was
scribed by PW16 Moti Sk. He briefly described his family namely his
brothers including the deceased victim and their children and the
relations between the appellants and the victim. He deposed that the
appellant no.1 informed him that the victim cut himself with a boti (a
sharp cutting long blade mounted on a wooden pedestal, used to cut
vegetables common to most kitchens in India), in the neck.
7. PW 2 was Ananda Das Kabiraj, another brother of the victim and an
inquest witness. PW 3 was the paternal cousin of the victim. He was
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a teacher at the local private school. He confirmed for the first time that
there was a dispute between the victim and his daughter and son-in-
law with regard to the sale proceeds of certain land of the victim. The
son and daughter in law of the victim, appellant nos. 1 and 2
supported the demand of money raised by the son in law.
8. PW 3 was also witness to the recovery of the ‘boti’, the weapon used in
the offence. He identified the ‘boti’ and the label thereon. He further
deposed that son of the deceased (the appellant no.1) supported the
demands of his sister and brother-in-law (the appellant no.2) against
the father.
9. In cross-examination, PW 3 confirmed the discord between the victim
and the appellants with regard to the money of the former obtained
from the sale of his land and a sum received from the local cooperative
society, namely Rampurhat Co-operative Bank.
10. PW 3 further deposed in his cross-examination that the relations
between the victim and the son-in-law and daughter were cordial
during the initial stage of marriage but soured in connection with the
demand for sale proceeds of land. He also deposed that his house was
a stone’s throw distance from the house of the victim. He heard from
PW 4 that the appellant no. 3 and his wife (appellant no. 4) had come
to the house of the victim on the previous night (15.12.2011) around
9:30 p.m. He was also a witness to the seizure of a torch light and a
mug from the PO.
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11. PW4 (Parimal Sarkar), PW5 (Sridhar Dalal), PW6 (Bamkim Das)
and PW8 (Haradhan Das) were the neighbors of the victim. Each of
them deposed that when they were having a casual conversation in the
verandah of the house of PW-4, when they saw the appellant no.3 and
his wife going towards the house of the victim at about 9:30 p.m. in the
night of 15.12.2011.
12. The said witnesses further confirmed that they were aware of the
discord between the appellants and the victim in connection with the
money in the hands of the victim being sale proceeds of the land and
money derived from other sources.
13. The statements of the PW 4, 5, 6, 8 were recorded before the
Magistrate under Section 164 of the CrPC. During the Trial, they had
identified their signatures thereon. The said statement was proved by
the Magistrate being PW 24. They were all interrogated by the police.
14. PW 7, Sandhya Das, was the younger sister of the deceased. She
confirmed, to a question put by the trial Court that the victim informed
her that the appellant no.3 and 4 were demanding money from the
victim, which the victim has obtained from the sale proceeds of land
and money from the cooperative bank.
15. PW 9 was Bappa Simalandi. He was the seizure witness of the
torch light and mug along with PW 10, Utpal Das Kabiraj, nephew of
the victim. PW 12, Balaram Prasad Das, was a friend of the deceased.
16. PW 13, PW 14 and PW15 were police constables. They took the
body of the victim for post mortem and also took the garments and
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viscera of the victim to the FSL for analysis. They identified the cloths
of the victim seized by the police.
17. PW 16 Ash Mohammed @ Moti Sk was the scribe of the complaint
filed with the said PS. He also recovered the weapon from a local pond
called Etelghora. At the request of the IO of the case, he went inside the
pond and recovered the boti (the instrument used in the kitchen for
cutting vegetables). He further confirmed the presence of the two male
appellants (nos. 1 and 3) at the time of the recovery of the weapon. The
evidence of PW 3 confirms that leading statements were given by the
appellants for recovery of the weapon along with their admission of the
guilt before the police. Such admission of guilt before the police is
however is not admissible in evidence.
18. PW 17, Hemendra Kumar Ghosh Mondal, was an LIC Agent. He
confirmed that the victim had a joint account with his son, the
appellant no.1. He deposed that the victim has bought an insurance
policy, the maturity value whereof was Rs. 1 lac. The son was the
nominee in the policy. He further deposed that the victim had bought
several Kisan Vikas Patras.
19. PW 18 was the doctor, Dr. Subhas Chandra Poddar, who
performed postmortem examination on the deceased. He observed as
follows:-
“i)…..on examination of the dead body I found one spindle shaped
sharp cutting injury measuring 5″ X 21/2″ X 1” deep placed over
neck in horizontal direction just above adams apple. The wound
is wider and deeper at the middle of injury and taper of both
ends. Each extended up to the sternocledo mastoid muscle of
either side. The injury cuts the skin, soft tissue, carotid vessles,
7nerves and muscle and finally he cut the larynx trachea lumen
was blocked by blood and blood clots. No other injury was
detected.
ii) In my opinion death was due to effect of above noted injury
which is antemortem and homicidal in nature. This is the P.M
report prepared by me in my own hand writing and thereafter I
signed on it with office seal. The P.M report is marked as Exbt.12.
iii) The injury which I have mentioned in my P.M report was
caused by single struck and the said injury was caused by the
maker with pressure. The injury that I found on the dead body of
the deceased must be caused with confidence and without any
resistance.”
20. PW 18 has deposed in his cross-examination as also in his
examination-in-chief that the injury on the victim was caused by sharp
cutting instrument which had severed the carotid vessels and nerves
and cut the larynx and trachea of the victim. He further deposed that
the injuries were ante mortem and homicidal in nature and were
caused with substantial pressure and confidence. The victim did not
offer any resistance..
21. PW 19 Provat Kumar Das, was the photographer. He deposed that
he took photographs of the deceased in the toilet of the house. He also
stated that there were certain illegible writings on the wall of the toilet
where the victim was found.
22. PW 20, Partho Das was a person who borrowed money from the
victim. He ran a lodge at Tarapith, He deposed and was ready to return
the same. He identified the handwriting of the victim.
23. PW 21 and PW 22 were declared hostile. PW 23 was the
investigating officer.
24. The appellants were examined under Section 313 CrPC. They denied
all the incriminating circumstances in the evidence on record that were
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confronted to them. They did not offer any alibi of not being present in the
house of the victim on the date of incident.
25. On behalf of the defence, one Sukhen Das, DW 1 was examined.
He was the Manager of the local cooperative society namely, Rampurhat
Cooperative Bank. He identified the letters written by the victim that were
marked as Exhibits A and B. The said letters were written about 6 months
prior to the incident. The victim had written how his money was to be
used ie amounts to be given to his grand children. The victim also wanted
a plate to be placed in the memory of his late wife and his photograph
placed next to his wife in a frame.
26. Based on the evidence on record the trial judge convicted the
appellants under Section 302 of the Indian Penal Code and sentenced
them as indicated above.
ANALYSIS OF THIS COURT:-
27. Learned counsel for the appellant has pointed out that the FIR was
lodged at 7.45 A.M. on December 16, 2011. The inquest, however,
commenced from 08.15 A.M. of the same day. PW 16, who scribed the
said written complaint, has deposed that it was around 9 A.M. to 10
a.m. that the complainant, PW 1, came to him to get the said written
complaint drafted. Learned counsel would therefore argue that the FIR
is suspect.
28. Section 174 of the CrPC states that when a person has died under
suspicious circumstances, the inquest officer shall ascertain whether
the person in question is a victim of homicidal, suicidal, or accidental
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death. It is based on this, that an FIR is lodged based on applicable
sections. An FIR can be lodged before the commencement of inquest
proceedings when the complaint to the police unambiguously reveals
that the victim has died a homicidal death.
29. In practice however, we see that an inquest is conducted in respect
of unnatural death, regardless of the complaint clearly stating how the
victim has died. The reason is that an inquest report records the
immediate circumstances prevailing at the PO after the receipt of
information of a crime, that to against a case number which is titled
UD (unnatural death).
30. In the present case, the appellant no. 1, the son of the victim, told
PW 1 that the victim had committed suicide by cutting his throat. PW
1 however suspecting foul play, mentioned in the complaint that the
appellants may have killed the victim. He referred to the dispute
between the appellants and victim as regards the cash and assets of
the victim.
31. Therefore, at first blush, it would appear that the victim died under
suspicious circumstances and hence the inquest ought to have
commenced before the lodging of the FIR. However, considering the
nature of the injury indicated by PW 1, a cognizable offence is evident
and hence the Margram PS immediately and rightly registered the FIR.
32. The inquest report itself recorded that the FIR was lodged at 7:45
A.M. Thus, there has been no suppression on the part of the
investigating agency. The inquest commenced 30 minutes after the
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lodging of the FIR that is from 8:15 a.m. Thus, there has been no
substantial time gap between the lodging of the FIR and the
commencement of the inquest. The inquest report is consistent with
the complaint lodged by PW1, and the medical evidence on record.
33. The decision in Mohd. Muslim v. State Of Uttar Pradesh,
reported in 2023 7 SCC 350, cited by the appellant, has dealt with
the situation where the police took four days to send the FIR to the
Magistrate. The FIR in the instant case was sent to the magistrate the
very next day of its registration. The said decision in Mohd. Muslim
(Supra) thus is inapplicable to the present case.
34. The case of prosecution was based on circumstantial evidence. The
first link in the chain of circumstances against the appellants is motive
of the appellant to end the life of the victim.
35. The evidence on record has established that the appellants were
unhappy with the victim for not making over money obtained from the
sale proceeds of his land and money received from the Rampurhat
Cooperative Bank of son-in-law and daughter. The appellant nos. 3 and
4 were demanding the money from the victim. The appellant nos. 1 and
2 supported such demand. The victim was not inclined to part with the
same as he had in writing wanted the same to be distributed amongst
his grand children. The son appellant No.1 would have benefitted from
the insurance policy and the proceeds of the joint bank account with
the deceased.
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36. Failure to obtain undue pecuniary benefit is definitely a motive for
crime. In Chunni Bai v. State Of Chhattisgarh, reported in 2025
INSC 577, it was held as follows:-
48. For committing a serious crime like homicide, there could be
various motivating factors……. One may also commit homicide to
gain undue pecuniary benefit or otherwise. One may commit such
a crime out of sheer frustration and dejection with life
channelising through violent acts
Emphasis applied
37. The evidence on record has not suggested that the appellants were
well to do. The wife of the victim predeceased him. Upon the demise of
the victim, the appellants were to succeed his assets including the
cash in the bank, house and insurance policy and investments. It,
therefore, cannot be ruled out that the appellants had an eye on the
lump sum amount of money obtained by the victim from the aforesaid
sources. Exhibit A and B demonstrate that the victim wanted his
money and other assets to be distributed amongst his grandchildren.
This was contrary to the wishes of the appellants. The motive of the
appellants to commit the crime is thus clearly established.
38. The evidence on record has clearly suggests the discord between the
victim and the appellants with regard to the demand of the said sum of
money by the latter. The discord was openly known even to the
neighbors of the victim in whom he must have confided. The discord
between the victim and appellants in the next link in the chain of
circumstances.
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39. The next link in the chain of circumstances is the conduct of the
appellant no. 1 in communicating the death of the victim to the
complainant, PW 1 and also the suppression made by him while
communicating the said information, The appellant no. 1 pretended
that he did not know the cause of the death. This demonstrates the
conduct of the appellant no. 1 just after the commission of the crime.
The said conduct is relevant in view of Section 8 of the Indian Evidence
Act, 1872. Section 8 and substantiates the conduct of the accused
relevant after the commission of the crime. In Vaibhav v. The State
Of Maharashtra reported in 2025 INSC 800, it was held as follows:-
21……. Undoubtedly, in a case based on circumstantial evidence,
facts indicating subsequent conduct are relevant facts under
Section 8 of the Evidence Act…….
40. The appellant no. 1 came to the house of the complainant, PW 1, to inform
that his father, the victim has died. In his evidence during the trial PW-1
deposed that he was informed by the appellant no.1 that the victim cut
himself in the neck with the boti, implying suicide. If that was the case the
weapon would have been found by other witnesses next to his body.
Admittedly the weapon was recovered from a nearby ditch/pond on the
leading statement of the appellants, albeit not brought on record. This is
another link in the chain of circumstances against the appellants. The
argument of the appellants’s counsel that the victim committed suicide is
therefore not supported in the facts of the case. A suicide by cutting one’s
neck by a boti is extremely unusual, apart from being nearly impossible.
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41. The attempt by the appellants to inform family members that the
victim had committed suicide is a relevant fact. The factum of the boti
not being found in the place of occurrence is therefore a relevant fact
and a vital link in the chain of circumstances. PW-1 did not believe the
appellant no.1 and went on to lodge the complaint, naming the
appellants as suspects. This chain of events is natural, logical, and
most likely no other conclusion is possible. It furthers the prosecution
case.
42. PW 2 has deposed that the appellant no. 3 and 4 used to frequently
visit the house of the victim demanding the said money, which soured
a previously cordial relation. The appellant no. 3 and 4 therefore had a
pre-existing grievance with the victim. The appellant no.1 & 2
supported the other appellants as they themselves would also benefit
from the death of the victim. Unless the victim had died the sum
assured under the insurance policy would not become payable. This
indicates a meeting of the minds and common intention amongst the
appellants as regards the death of the victim causing the same. This is
yet another link in the chain of circumstances against the appellants.
43. The next link in the chain of circumstances is the recovery of
murder weapon at the instance of the two male appellants and its link
with the injuries on the victim. In a case based on circumstantial
evidence, the recovery of the offending weapon and its link with the
accused assumes great significance. The medical evidence in this
regard must be noted. It links the appellants with the murder weapon.
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PW 18, the postmortem doctor, has deposed that the middle portion of
the neck of the victim received the deepest injury. The features of the
weapon by which the injury was caused therefore need to be
appreciated.
44. PW 23, the IO of the case, directed PW 16 to go down to the pond
and see whether there is a Boti. PW 16 has deposed that the male
accused persons were present at the time of the said recovery. Thus,
the appellant no. 1, the son of the victim and the appellant no. 3, the
son-in-law of the victim, were present. PW 2 has confirmed their
presence at the time of recovery.
45. PW 16 found one Boti in the said pond. PW 16 has deposed that
the said two male appellants showed him the place of the Boti in the
pond. PW 16 collected the Boti and handed it over to the IO. The said
two appellants identified the Boti as the murder weapon.
46. The said IO has deposed that the said two appellant nos. 1 and 3
have confessed before him that they have cut the throat of the victim.
The said statement of guilt before the police is not admissible in
evidence. The said two appellants however have spoken beyond the
said statement of guilt. They identified the place where the murder
weapon was kept. The same was witnessed by independent witnesses.
47. PW 16 has unequivocally stated that the appellants have pointed
out the place of boti in the said pond and had identified the Boti as the
murder weapon. The appellants thus were aware of the place where the
weapon was disposed and its use in the murder of the victim. The
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mandate of Section 27 of the Evidence Act is fulfilled. This is yet
another link in the chain of circumstances.
48. The decision in Boby V. State Of Kerala, reported in (2023) 15
SCC 760 thus is inapplicable to present case since the appellant nos.
1 and 3 have distinctly identified the place of the said pond from where
the boti was recovered. They identified the said boti as the murder
weapon. The defense has not introduced any evidence of any past
relation between the police and the PW 16. Thus, PW 16 is not proved
to be a stock witness.
49. The nature of the injury found on the victim indicates that the
throat cut on the victim was caused by a Boti. The middle portion of
the victim’s neck received the deepest cut. The middle portion of a
blade of a Bonti is the sharpest. The reason is that the vegetables are
cut through the middle portion of the Boti. The middle portion of the
boti is most often sharpened by users.
50. Therefore, when the appellant nos. 1 and 3 applied the Boti on the
neck of the victim, the middle portion of the blade of the boti came in
contact with the neck of the victim and caused the deepest cut on
middle of the neck of the victim. The statement of PW 23, the IO,
inspires confidence in view of the fact that he has deposed that only the
male accused persons identified the Boti. In this regard, we note that
the accused women cannot be expected to hide the offending weapon in
the pond. They cannot also be expected to have applied the Bonti on
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the victim in the presence of the appellant nos. 1 and 3. They however
actively participated in crime with the said two male appellants.
51. Had the IO intended to falsely implicate all the appellants, he
could have deposed that all of them were present at the time of
recovery. The IO had the opportunity to weave a story that all the
appellants had identified the boti as the murder weapon. He, however,
did not. His statement before the Trial Court on the identification of the
murder weapon is thus trustworthy.
52. Learned Counsel for the appellant has argued that there was an
absence of common intention amongst the appellants to end the life of
the victim. However, all four appellants were present at the PO on that
fateful night. They remained at the PO after the commission of the
crime. The only witnesses to the murder of the victim thus were the
four appellants.
53. No hue and cry was raised from the house of the victim on that
fateful night. No one knew that the victim had been murdered till the
appellant No. 1 informed PW 1 about it. Therefore, none of the inmates
in the house of the victim offered any resistance to the execution of the
murder of the victim. The four appellants were such inmates in
addition to the victim. The medical evidence has established that the
victim did not offer any resistance. There is evidence on record to
indicate that the crime was committed in the bathroom adjacent to the
toilet. The victim was later brought to the toilet and left to bleed
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thereat, allowing the blood to flow directly into the Indian Style
commode.
54. The assailants of the victim therefore intended that the victim gets
murdered without anyone being alarmed. The victim was old and
depressed and hence offered no resistance. He could easily have been
pinned down by three others as one of them was cutting throat. The
murder was made possible by the active participation of all the inmates
of the victim’s house. This indicates that all four appellants acted with
a common intention
55. There was no noise from the house as the victim had not offered any
resistance. This is evident from the arrival of the appellant no. 3 and 4
at the house of the victim on that fateful night. Appellant no. 4 was
the daughter of the victim. She used to reside in her matrimonial
home. She however came to the victim’s house on that fateful night
with her husband, the appellant number 3. They were thus allowed
entry by the appellant nos. 1 and 2. The said fateful night was thus
pre-planned.
56. Appellant Nos. 3 and 4 entered into the house of the victim; all the
appellants then took control of the house, and thereafter executed their
common plan namely the murder of the victim. When a group of
persons assembling at the PO, each member thereof need not inflict
injuries on the victim. Two or three of the appellants overpowered the
old and frail victim. He may have also been gagged. The decision in
Krishan Kumar & Anr v. The State of Haryana, reported in 2023
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INSC 679 is therefore inapplicable since common intention was not
clearly proved in that case.
57. In the present case, the most major link in the chain of
circumstances is the last seen theory. The neighbors of the victim have
deposed that the appellant no. 3 (the son-in-law of the victim) and
appellant no.4 (the daughter of the victim) were walking towards the
house of the victim on that fateful night. The said neighbors have also
found the appellants at the PO when they arrived thereat, upon being
informed about the death of the victim. The argument of Ld counsel for
the appellants that walking towards the house does not mean they
entered the house of the appellant, cannot be accepted. At 9:30 in the
night it is only natural and obvious that the daughter and son-in-law
would go to the house of the victim. They would not be passing by as
they did not reside in the village of the victim. This is another link in
the chain of circumstances against the appellants.
58. The appellants Nos 1 and 2 they lived in the house of the victim in
the ordinary course. There is therefore a presumption that the said
appellants were in the house at the place and time of the murder. The
arguments of ld Counsel for the appellants that the prosecution was
required to prove that they were present the the PO cannot be
accepted. It was upon the appellants to demonstrate that they were
present elsewhere than the PO on the date and time of the incident.
This has not been done.
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59. In fact, the last seen theory in the present case assumes more
significance since in effect, it translates to the theory of last stayed
together. The appellants were not merely last seen with the victim.
They were under the same roof with the victim on that fateful night. In
the State Of Madhya Pradesh v. Balveer Singh 2025 INSC 261, it
was held as follows:-
87. If an offence takes place inside the four walls of a house and in
such circumstances where the accused has all the opportunity to plan
and commit the offence at the time and in the circumstances of its
choice, it will be extremely difficult for the prosecution to lead
direct evidence to establish the guilt of the accused. It is to resolve
such a situation that Section 106 of the Evidence Act exists in the
statute book………..The law does not enjoin a duty on the
prosecution to lead evidence of such character, which is almost
impossible to be led, or at any rate, extremely difficult to be led.
The duty on the prosecution is to lead such evidence, which it is
capable of leading, having regard to the facts and circumstances
of the case.
60. It was impossible for the prosecution to lead evidence as regards
what transpired in the house of the victim on that fateful night. There
was no witness to the murder of the victim. The only eyewitnesses to the
murder of the victim were the appellants in view of their presence with
the victim under the same roof on that fateful night. Thus the events of
that fateful night at the PO fell with the special knowledge of the said
appellants. The appellants have not denied their presenece at the PO on
the date of the incident.
61. A duty was therefore cast on the inmates of the said house to lead
evidence as regards what happened to the victim on that fateful night.
The appellants being the inmates of the house were in an exclusive
20
position to state as to why and how the throat of the victim was cut. The
appellants were unable to demonstrate the same.
62. The prosecution is not duty-bound to prove a negative fact. The
negative fact herein is that the appellants did not commit the crime
notwithstanding that they were present under the same roof with the
victim. The appellants were therefore duty-bound to lead positive
evidence regarding their actions or inactions in the said house on that
fateful night. The paragraph nos. 78 and 80 of Balveer Singh (supra)
are of specific importance in this regard, wherein it was held as follows:-
78.: What lies at the bottom of the various rules shifting the evidential
burden or burden of introducing evidence in proof of one’s case as
opposed to the persuasive burden or burden of proof, i.e., of proving
all the issues remaining with the prosecution and which never
shift is the idea that it is impossible for the prosecution to give
wholly convincing evidence on certain issues from its own hand
and it is therefore for the accused to give evidence on them if he
wishes to escape. Positive facts must always be proved by the
prosecution. But the same rule cannot always apply to negative
facts. It is not for the prosecution to anticipate and eliminate all
possible defences or circumstances which may exonerate an
accused. Again, when a person does not act with some intention
other than that which the character and circumstances of the act
suggest, it is not for the prosecution to eliminate all the other
possible intentions.
80. A manifest distinction exists between the burden of proof and the
burden of going forward with the evidence. Generally, the burden of
proof upon any affirmative proposition necessary to be established as
the foundation of an issue does not shift, but the burden of evidence
or the burden of explanation may shift from one side to the other
according to the testimony. Thus, if the prosecution has offered
evidence, which if believed by the court, would convince them of
the accused’s guilt beyond a reasonable doubt, the accused, if in a
position, should go forward with countervailing evidence, if he
has such evidence. When facts are peculiarly within the
knowledge of the accused, the burden is on him to present
evidence of such facts, whether the proposition is an affirmative
or negative one. He is not required to do so even though a prima facie
case has been established, for the court must still find that he is guilty
beyond a reasonable doubt before it can convict. However, the
accused’s failure to present evidence on his behalf may be
21regarded by the court as confirming the conclusion indicated by
the evidence presented by the prosecution or as confirming
presumptions which might arise therefrom. Although not legally
required to produce evidence on his own behalf, the accused may
therefore as a practical matter find it essential to go forward
with proof. This does not alter the burden of proof resting upon the
prosecution
Emphasis applied
63. When the foundational facts have established that it is the accused
only who could have an answer to and lead evidence as regards a
fact(namely who has murdered the victim in his house in the presence
of the accused), the burden to introduce evidence that the accused did
not murder the victim shifts to the accused.
64. The prosecution need not prove that the accused has in fact
committed the murder. The prosecution has to demonstrate that the
accused could only be the person who had the opportunity to kill the
victim in the house since the accused was present with the victim.
65. When the accused fails to prove the said peculiar fact as to who
caused the murder of the victim, the case of the prosecution that it was
the accused only who could have murdered the victim stands
reinforced. In the present case the prosecution has been able to prove
the following foundational facts for the application of section 106 of the
Indian Evidence Act-
A. The appellant no.1 and his wife, the appellant no. 2 resided with
the victim father in the same house at the place and time of
occurrence.
B. The appellant no.3 and his wife, the appellant no.4 joined them
on that fateful night. The entry of the appellant nos. 3 and 4 in
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the house of the victim on that fateful night has been confirmed
and they were identified by PW4, PW5, PW6 and PW8. The said
PWs have deposed that they saw the said two appellants entering
the house of the victim on that fateful night around 9:30pm.
C. The evidence on record has established the walls of the house of
the victim were sufficiently high. Hence, the said walls could not
be easily crossed over by any other person. The door of the house
of the victim was often locked. One can safely infer that the door
of the house to let in the appellant nos.3 and appellant no.4 was
opened by the said appellant nos. 1 and 2.
D. The appellants had a pre-existing dispute with the victim as
regards the transfer of money in favor of the former lying in the
hands of the victim.
E. The victim could not have committed suicide by cutting his own
throat as in such case the boti would have been found at the PO.
F. The evidence led by the appellants before the trial court indicates
that the appellants wrote about 6 months prior to his death,
what could have been a testamentary disposition of his money
contrary to the wishes of the appellants.
66. The prosecution therefore has been able to establish the presence of
the appellants at the place and time of occurrence. The burden of proof
therefore shifted on the appellants to demonstrate under Section 106 of
the Evidence Act that either they were elsewhere than the P.O or that
there were somebody else also in the P.O on the date and time of
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occurrence. There is absolutely no evidence whatsoever in this regard
brought by the appellants. They have not denied their presence at the
PO.
67. The decision in Krishan Kumar & Anr v. The State of Haryana,
reported in 2023 INSC 679, cited by the appellant, has held that the
evidence on the victim being last seen with the accused should be
established by positive evidence. Evidence on the last seen theory
should not be derived from inference from the other evidence on record.
In the present case, all the appellants were with the victim at the PO as
already demonstrated above. The decision in Krishan Kumar(supra) is
thus inapplicable.
68. The said first link has established the motive of the appellants to kill
the victim. The motive was to lay hands on the money of a reluctant
victim. The second link has established the conduct of the appellant
no. 1 after the commission of the crime. The conduct was one of
suppression of the cause of the death of the victim from PW 1.
69. The third link has established the mental awareness of the
appellant nos. 1 and 3 about the place where the murder weapon was
kept. The medical evidence has established that the said murder
weapon was used to cut the throat of the victim. The nature and extent
of the injury on the neck of the victim has linked the said murder
weapon with the murderous injury on the neck of the victim. The
fourth link has established the exclusive presence of the appellants at
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the house of the victim on that fateful night. The appellants’s motive is
also clearly established as discussed hereinabove.
70. The aforesaid links leads to the irresistible inference and only
conclusion that all the four appellants were ad idem to kill the victim.
They could be the only persons to kill the victim. They were driven and
motivated by the urge to lay hands on the money of the victim. They
thus took the extreme step of ending the life of the victim. In Balveer
Singh (supra), it was held as follows:-
64. In a case of circumstantial evidence, the judgment remains
essentially inferential. The inference is drawn from the established
facts as the circumstances lead to particular inferences. The Court
has to draw an inference with respect to whether the chain of
circumstances is complete, and when the circumstances therein are
collectively considered, the same must lead only to the irresistible
conclusion that the accused alone is the perpetrator of the crime in
question. All the circumstances so established must be of a conclusive
nature, and consistent only with the hypothesis of the guilt of the
accused.
71. In the backdrop of the aforesaid discussion this Court is of the view
that the impugned judgment and order of conviction calls for no
interference of this Court.
72. Insofar as the quantum of sentence imposed on the appellants this
Court is of the view that the appellants had clearly acted with the common
intention and motive to end the life of the victim.
73. The victim was stumbling block standing in their way from receiving
the money of the victim from sale proceeds of his land of about 8 lacs and
Rs.60,000 from the Co-operative bank, and his bank account balance
and value of the Kisan Vikas Patras. The death of the victim would in
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addition to achieving the ends of the appellants would also entitle them to
proceeds of the insurance policies to the tune of Rs.1 lac.
74. The appellants pre-planned the murder. This is evident from the
arrival and presence of the appellant nos. 3 and 4, who were supposed to
at their own home. They however arrived at the house of the victim to take
part in the murder of the victim. The appellants murdered the helpless
victim who was old and weak and already depressed because of the death
of his wife. The appellants were driven by undue pecuniary benefit. The
appellants thus executed a cold blooded murder with all brutality.
CONCLUSION
75. In the light of the above, the sentence of imprisonment for life
under Sections 302 read with Section 34 of the IPC is appropriate and
calls absolutely for no interference. The appellants, if on bail, shall be
immediately taken into custody by the jurisdictional police, and be
produced before the jurisdictional court. The latter shall ensure that the
appellants undergo the punishment imposed by the Trial Court, as stated
above.
76. With the above observations, CRA 607 of 2016 therefore fails and
hereby dismissed. Consequently, all connected applications shall stand
dismissed
77. However there shall be no order as to costs.
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78. All parties shall act on the server copy of this order duly downloaded
from the official website of this Court.
(Rajasekhar Mantha, J.)
I Agree.
(Rai Chattopadyay, J.)
