Rajasekhar Mantha, J.:

1. The subject appeal is directed against the judgment and order of conviction dated 16th December, 2015 and 17th December, 2015 respectively, passed by the learned Additional District and Sessions Judge, 3rd Court, Barrackpore, North 24 Parganas in Sessions Trial No. 2(7) of 2013 arising out of Sessions Case No. 187 of 2013.

2. The appellant was convicted under Section 302, IPC and was sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 10,000/-. In default thereof, to further undergo a simple imprisonment for three months. He was further convicted for offence under Section 201, IPC and was sentenced to rigorous imprisonment for 3 years and to pay a fine of Rs 10,000. In default thereof, to further undergo a simple imprisonment for 3 months.

THE PROSECUTION CASE AND THE EVIDENCE ON RECORD

3. The body of the victim was found around 5:00 PM on 7th December, 2012 in Nayanjuli (water body) behind a school for the visually challenged at Kalyani Expressway. It is stated that the said body was discovered by some local people, who were removing water hyacinth to catch fish from the said water body.

4. PW 1, was Partha Sarathi Patra. He lodged the criminal complaint with Naihati Police Station under Barrackpore sub-division, upon discovering the dead body of victim. PW 1 has deposed that he found the dead body of the victim having a reddish saree. The body was in the watery bushes in a ditch. He did not know the victim. FIR No. 479 of 2012 dated 7th December, 2012 came to be registered by the Naihati Police Station based on the complaint of PW 1.

5. PW 2-6 reached the spot after coming to know that a dead body of a woman was found. The Prosecution has examined the said witnesses to establish that they have witnessed a dead body at Nayanjuli (water body) behind a school for the visually challenged at Kalyani Expressway. The dead body was of the victim.

6. PW 11, was Dr. Abhijit Ghosal. He conducted post mortem on the dead body of the victim. He found 6 lacerated injuries on the right forehead, left side of the head, upper lip, and on the lower part of the left ear and inside the vagina of the victim. He also found two nail scratched marks on the right and left side of the face of the victim and an abrasion on the neck of the victim. PW 11 has deposed that the said injuries were caused by hard and blunt substance and are homicidal. He further deposed that said the injuries were the result of the physical and sexual assault. He has deposed that he found bleeding from the aforesaid injuries. He deposed that the cause of the death of the victim was due to strangulation on neck.

7. The circumstances leading to the death of the victim emerge from the evidence of PWs 7, 8, 9, and 15. PW 7 was Lipika Datta, she was the ex-sister in law of the victim. She used to visit the parental house of the victim. PW 8, was Taranath Bhattacharya. He was the landlord of the house where the appellant shifted the victim and her son from the parental house of the victim. PW 9 was Sayak Chakraborty. He was a colleague of PW 7 in office. He accompanied PW 7 when she visited house of the victim and the house of PW 8 and other places in connection to the death of the victim. PW 15 was Dipnakar Palit. He was the ex-husband of the victim. He was aware of the events taking place in the life of the victim and his son by virtue of maintaining a cordial relation with the victim even after divorce. The said witnesses are related to each other. Since their evidence is interlinked, the evidence of the said witness is collectively discussed hereinafter.

8. PW 7 has deposed that the victim and her brother, Dipankar Palit, PW 15, was divorced by mutual consent. A son named Somnath, who was 23 years old as on April, 2014 was born out of the said wedlock. PW 7 has deposed after the said divorce, the ex-husband of the victim, PW 15, moved to Chennai and was staying with his father and was under treatment. She deposed she had a cordial relation with the victim even after the divorce of the victim from her brother. PW 15 requested PW 7 to maintain good relations with the victim. PW 7 has deposed that the victim and her son Somnath were staying at the parental house of the victim, at 94, Gorakhyabasi Road, Dumdum. She used to visit the victim and her son thereat. She also deposed that the father and mother of the victim died in 1997 and 2007 respectively. The victim was the only child. The property at 94, Gorakhyabasi Road was transferred to the deceased victim. The victim’s father was the head of the department at law at Calcutta University and the mother was a teacher at Government High School.

9. PW 7 has deposed that initially the appellant was a caretaker in the house of the victim and later started to run a shop selling phenyl from the ground floor of the said house. PW 7 knew and identified the appellant in Court. PW 15 has also confirmed the same. She further deposed that sometime in October, 2010 she went to the house of the victim at Dumdum and found the same was partially demolished. The victim informed PW 7 that house is demolished to be developed by the appellant. PW 8 has also confirmed that the appellant informed him that the house of the victim is under demolition and the appellant will develop the said house. This was conveyed to PW 8 by the appellant as the reason for the renting the house of PW 8 for the victim and her son.

10. PW 7 has deposed that on 4th November, 2012, PW 15, informed her from Chennai that the Dumdum Police Station has informed PW 15 over phone that his son, Somnath, was aimlessly roaming around in the night. PW 7 rushed to Dumdum PS and came to know that the appellant and one Narayan, a property broker, had taken the son of the victim from the PS around 4:00 AM and probably went to an area called Baguihati. PW 15 has confirmed during his examination before the Court that he was indeed called by the Police about the said incident relating to his son and he thereafter called his sister, PW 7, to inform it. .

11. PW 7 has deposed that she went to the parental house of the victim. She did not find anyone thereat. She tried to call the victim over phone but the phone was switched off. She got a call from one Monika Das, a property dealer, that the appellant had grabbed all the money and property of the victim and the victim and the son were penniless. She further deposed that she met with the said Monika Das. Monika Das took her to the house of PW 8, who was one Taranath Bhattacharya. PW 8 was the landlord of the place where the victim and her son stayed until 31st October, 2012. In this regard, PW 8 has deposed that the appellant and his friend one Narayan took his house on rent for the victim and her son to stay threat. PW 8 has deposed that the appellant and Narayan often assaulted the victim and her son and deprived them of any sustenance. PW 7 and 9 have deposed that PW 8 has told them the aforesaid.

12. In this regard, it must be stated PW 9 was Sayak Chakraborty, a colleague of PW 7. PW 9 accompanied PW 7 all along. PW 9 has confirmed the evidence of PW 7 in its entirety. PW 7, PW 8, PW 9 and the said Monika went to the house of Narayan. Narayan informed them that the appellant had taken the victim and her son with him. Narayan took the mobile number of PW 9. On that day, the appellant called PW 9 over his phone and asked them to come to Narayan’s house on 14th November, 2012 after Kali Puja to meet the victim and her son.

13. PW 7 has deposed that on 14th November, 2012, she and PW 9 went to the house of Narayan. They found the victim and her son thereat along with the appellant and her second wife Rani Shaw. PW 7 asked the victim come with her at the former's house. The victim however refused explaining to PW 7 that the appellant owed her money and promised to develop her house and give her a flat thereat. The victim instead requested PW 7 to take her son, Somnath, to her house in Behala at Kolkata. He fell ill thereat.

14. In this regard, PW 15has also deposedhis ex-wife told him that the appellant was pursuing the victim to develop her house property or sell the same to the appellant. He deposed that the victim has told her that that the appellant took money, property and was operating bank accounts of the victim. The appellant rendered the victim bankrupt. The victim told him that the appellant would give her a flat in the newly constructed property after development and a sum of Rs. 1 Crore.

15. PW 7 has deposed that as they were leaving the house of Narayan, Somnath, who was mentally disturbed, repeatedly asked PW 7 to take away the victim or else the appellant would kill her. She further stated that Somnath was admitted at a Rehabilitation Centre in Jadavpur, Kolkata. Thereafter, she did not receive any information about the victim. In this regard, PW 8 has also deposed that he once found Somnath shivering and trembling. On asking, Somnath told him that the appellant would kill his mother for the property in question

16. PW 7 has deposed that Rani Shaw, the wife of the appellant, called PW 9, in the presence of PW 7. Rani Shaw informed them that the appellant had killed the victim and threw her body in a watery ditch near a school for the visually challenged. PW 7 rushed to Dumdum PS to search for the victim. In this regard, PW 15 has also deposed that he spoke to the wife of the appellant Rani Shaw several times on the phone and met her at the police station at Naihati. He was informed by Rani Shaw that the victim was murdered by her husband the appellant.

17. PW 7 has deposed that the Commissioner of Police, Barrackpore, advised her to lodge a complaint with Naihati PS. She was shown the photograph of the body of the deceased victim at the Naihati PS which she identified as her sister-in-law. She was interrogated by the police and recorded her statement under Section 164 of the Cr.P.C. sometime in February, 2013. She identified her signature on the seizure list of a cheque book of United Bank of India issued in the name of the victim. The cheque book was found from the house of the appellant and his wife Rani Shaw at Durganagar. She has deposed that there was a trade license in the name of the appellant at the address of the victim.

18. In this regard, PW 15 has also deposed he also went to Dumdum PS to lodge a complaint but was refused. He along with his sister, PW 7 and PW 9 went to the Barrackpore Police Station and finally lodged a complaint with the Naihati PS where a body of an unknown woman was discovered. The Naihati PS showed him the photograph of the deceased and he identified the victim as his ex-wife. He recorded a statement before the Magistrate under Section 164 of the Cr.P.C. The said statement was exhibited as Exhibit 9.

19. PW 8 has deposed that the appellant used to pay rent to PW 8 on behalf of the victim and her son. He has deposed that he and his wife often voluntarily served food to the victim and her son. The victim and her son were in a financial crunch. He has deposed that the appellant took away the victim and her son from his house on 31st October, 2012 and never returned. He was informed that the appellant would take the victim and her son to Kalyani for a better place. He identified the pictures of the dead body of the victim and was interrogated by police.

20. PW 8 has deposed that he sought for the payment of the rent from the appellant. The appellant was not paying the rent for the month of October, 2012. The appellant informed that the victim and his son will be shifted to a better rented accommodation. The due rent amount will be paid at the time of check out. They were shifted on 31st October, 2012. He further confirmed that the appellant removed all the belongings of the victim from his house two days after the 31st October, 2012. He also deposed that the appellant kept the victim in starvation and deprived them of money. The appellant and the victim had severe altercation on the question of payment of money. The appellant also assaulted Somnath the son of the victim when he demanded money. He also deposed that his wife used to give food to the victim and her son out of mercy. The only conclusion that is possible in the facts is that the appellant had not given the said sum of Rs. 30 Lacs paid as advance for development of their house.

21. PW 9 hasconfirmed the evidence of PW 7 and PW 8 in its entirety. He recorded his statement under Section 164 of the Cr.P.C before the learned Magistrate. His statement was exhibited in Court. He was also a seizure witness to the cheque book referred to by PW 7 from the house of the appellant and signed on the seizure list. He further confirmed that on 15th February, 2013 the police seized a Maruti Wagonr and other documents from a Baguihati garage in the presence of the appellant and Rani Shaw and was a witness to the seizure of the vehicle. He identified the seizure list and a signature thereon.

22. PW 10 was Parag Neogi, who was a Judicial Magistrate and recorded the statement of PW 7, 8 and 9.

23. PW 12 was Bishal Mangrati, was a Judicial Magistrate. He recorded the statement of Rani Shaw under Section 164 of the Cr.P.C. In the said statement, Rani Shaw had stated that she knew the victim and called her didi. She further deposed that the appellant used to work as a caretaker in the house of the victim and later ran a business of phenyl marketing from the said house. She confirmed that the appellant convinced the victim to develop her property through a promoter called one Chanchal. She further deposed that after living in the tenanted premises, the victim and her son came to live in her house to which she agreed.

24. She further stated that in the evening of 3rd December, 2012 the victim went along with her husband, the appellant. Later in the night and early in the morning when the victim returned home alone, Rani Shaw stated that the expression on her husband’s face was abnormal and pale. Wearing apparels of the appellant was covered in dust and clay.

25. She further stated that the victim who used to regularly call the appellant did not call him from that day. She became suspicious and asked her husband about the victim and was told that she was fine. She later said that after sometime her husband was arrested by the police. She was shown photograph of the victim and identified her. She suspected that the victim was murdered by her husband.

26. The statement recorded by PW 12 of Rani Shaw, was read over to her to confirm the same and put a signature on that, the statement was marked as exhibit 7 without any objection. The defines in the cross-examination of PW 12 asked who identified Rani Shaw before him to which PW 12 stated that Rani Shaw was identified by one home guard, Anuva Halder.

27. PW 13 was Gyanamoy Manna, who was an ASI of police. He received the complaint from PW 1 and drew up a former FIR. He collected the body and conducted the inquest on her at the hospital at Naihati and initially registered an UD Case No. 82 of 2012. He sent the body to Barrackpore PS for post mortem after inquest.

28. PW 14 was Dr. Suman Mohan Ghosh of the Naihati State General Hospital, who examined the appellant. He deposed that the appellant was capable of having sexual relations and he came to know that the appellant was a father of two children.

29. PW 15 was Dipankar Das, the ex-husband of the deceased victim. He deposed that he was married to the victim on 20th April, 1989. They resided as husband and wife and had a son named Somnath who was born on 30th May, 1991. He obtained a divorce by mutual consent with his wife on December 1, 1994. He identified the photograph of the deceased victim as his ex-wife. He confirmed that his son was under rehabilitation in a place at Jadavpur, Kolkata and that he was maintaining his son. He has deposed that the doctors, treating his son, opined that the latter was not capable of deposing in Court. His evidence could not be seriously shaken in crossexamination. He was in Chennai when on 10th December, 2012 when Rani Shaw informed him of the murder and death of the victim.

30. PW 16 was Suryakanta Saren. He was a seizure witness to the wearing apparel of the victim and found the appellant between 2:45 to 3:30 PM when PW 16 was returning home on a cycle. The seized wearing apparel were produced in Court and identified by him. The apparel were seized on a leading statement given by the appellant.

31. PW 17 was Nirmay Tamang, a Judicial Magistrate, who led the TI Parade at Barrackpore sub-correctional home. He deposed that one Sk. Sarafat Hossain, PW 19, identified the appellant. The said Sarafat had given a statement that on the date of the incident and prior thereto he saw the appellant tried to take something or dragged something from a vehicle at Rajendrapur under Nahitai PS.

32. PW 18 was the owner of the garage where the appellant used to park his Maruti WagonR the vehicle was seized from his garage by the police.

33. PW 19 was Sk. Sarafat Hossain who was declared hostile.

34. PW 20 was Ashok Kumar Tiwari, the Investigating Officer. He confirmed that PW 7 and PW 15 identified the body of the victim from a photograph. He collected the viscera of the victim. Her nails and blood on her blouse. He had sent the same for FSL examination. He visited the parental house of the victim and conducted a raid and arrested the appellant from Uttarpara with the help of Uttarpara PS.

35. The arrest memo was signed by Rani Shaw, the appellant’s wife. He confirmed that Rani Shaw had died in course of trial. He confirmed having interrogated the appellant, where he confessed that he had taken the property of the victim. The appellant further confessed that he murdered the victim and threw her body in the drain and was ready to cooperate in the investigation. He confirmed having seized the wearing apparel of the victim and had examined PW 7, PW 9, PW 15 and Rani Shaw. He has sent the said witnesses before the Ld. Magistrate to record their respective statements under Section 164 of the Cr.P.C. He seized the wearing apparel from the house of the appellant and also seized the car from the garage of PW 18.

36. After collecting the inquest and PM report, he made a prayer for addition of Sec. 376, IPC in the FIR. He discharged accused Narayan Chandra Dhar from the charges. His evidence could not be shaken in crossexamination.

37. The investigation was completed. The appellant was arrested from Uttarpara on 14th November, 2013. The memorandum of arrest was exhibited as Exhibit no. 21 before the Trial Court. On completion of investigation, charge-sheet was submitted before the Trial Court. Charges were framed against the appellant under Section 376, 302 and 201 of the IPC.

38. The appellant was examined under Section 313 of the Cr.P.C who denied all the suggestions made to her. The defense examined one Dr. Abhijit Ghosal as DW 1.

39. Based on the evidence on record, the Trial Judge convicted the appellant under Section 302 and 201 of the IPC and sentenced as aforestated. The appellant was acquitted from the charge under Section 376 of the IPC.

ANALYSIS OF THIS COURT

40. The present case is based on circumstantial evidence. Thus, the following circumstances emerging from the evidence on the record need to be examined in light of the decision in Sharad Birdhichand Sharda v. State of Maharashtra reported in (1984) 4 SCC 116, which has laid down five principles in light of which a prosecution case based on circumstantial evidence needs to be examined. In Sharad Birdhichand Sharda decision ( supra) , it was held as follows:-

                    “153…

                    (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

                    (2) 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,

                    (3) the circumstances should be of a conclusive nature and tendency,

                    (4) they should exclude every possible hypothesis except the one to be proved, and

                    (5) 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.

41. The first circumstance in the chain is how the appellant came to know the victim. The evidence on record has established that initially the appellant used to work as a caretaker to the victim and her son in the house of the victim. The appellant thereafter became a tenant of the ground floor of said house. The appellant used to carry out the trade of phenyl marketing from the said ground floor.

42. The second circumstance is the motive of the appellant to kill the victim. The appellant pitched a development plan to the victim that the former would develop the victim's house; the victim will be provided with a flat therein and further a sum of Rs 1 Crore. The appellant, however, did not keep to his word. The house of the victim is stated to have been demolished in that regard. The victim and her son therefore became homeless.

43. The appellant thus arranged the stay of the victim and her son at a rented place. The victim was, however, not content with the said alternate arrangement. She insisted that the appellant shall hand her over a flat and Rs 1 crore, as promised. Therefore, it was in the interest of the appellant that the victim be eliminated. In fact, the victim wrote a letter, where she expressed her apprehension that she may be killed by the appellant. The said document has been marked exhibit 5 without objection from the appellant. The son of the victim also echoed the same apprehension to PW 7. The appellant thus had reasons to remove the victim from his way. On 18th February, 2013 the police seized a declaration by the victim to the effect that:-

                    S.T. 2(7)13/S.C. 187/13

                    I AM GIVING SOME STATEMENTS

                    I am MinakshiPalit, P.S. Dum Dum

                    Respected OC/L.C

                    If I die any day, Shankar Shaw will be responsible for that. None but Shankar. He has constructed flat on my land and he promised me to hand over my flat in October, but he did not. Then he promised to do the same on 10 November but he failed. So, I have no other way but to write this statement. At present I have no residence and I am roaming about here and there. At present Shankar Shaw arranged for a temporary residence for which I am obliged to him and let him rid of this burden.

                    I have voluntarily written this statement. None pressurized me.

                    Yours faithfully,

                    Sd/-MinakshiPalit

                    Translated by:-

                    Mt. Khairul Am

                    Md. KhairulAnam, 10.04.2017

                    Head Clerk cum Translator (in-charge), District Judge's Court,

                    North 24-Parganas, Barasat

44. The aforesaid declaration is admissible in view of the decision reported in Sudhakar v. State of Maharashtra, (2000) 6 SCC 671, wherein it was held as follows:-

                    8. In Rattan Singh v. State of H.P. [(1997) 4 SCC 161 : 1997 SCC (Cri) 525] this Court held that the expression “circumstances of transaction which resulted in his death” means that there need not necessarily be a direct nexus between the circumstances and death. Even distant circumstance can become admissible if it has nexus with the transaction which resulted in death.

                    9. In NajjamFaraghi v. State of W.B. [(1998) 2 SCC 45 : 1998 SCC (Cri) 506] this Court held that the death of the declarant long after making the dying declaration did not mean that such a statement lost its value merely because the person making the statement lived for a longer time than expected. But to make the statement admissible, it has to be shown that the statement made was the cause of the death or with respect to the circumstances of the transaction which resulted in his death.

                    Emphasis Applied

45. The third circumstance is the sequence of events which occurred in close proximity to the death of the victim. The same forms a crucial link between the appellant and the death of the victim.

46. PW 7, the former sister in law of the victim, maintained cordial relation with the victim even after the divorce by. In October, 2010, she visited the house of the victim and found that the said house is partially demolition. The victim told her that the house has been subjected to demolition to be developed by the appellant.

47. PW 8, who was the owner of the property where the victim and her son stayed as tenants after moving out from the house of the victim, also stated that the appellant brought the victim and her son to his house; the appellant used to pay rent on their behalf; the appellant explained to PW 8 that the property is taken on rent for them since he is developing the house of the victim and thus the victim and her son had to be accommodated in a different place.

48. PW 8 has stated that the victim and her son left the rented house on October 31, 2012. On that date, the appellant took away the victim and her son by making the full and final payment of rent to the PW 8. Prior thereto, when the appellant was not paying the rent and PW 8 asked for the rent, he was informed that the victim and her son would soon be shifted to a better accommodation and all dues would be paid at the time of checkout.

49. The event of taking away the victim and her son by the appellant is the first of the two events which establishes that the victim was under the exclusive control of the appellant. They moved in and out as per the direction and will of the appellant.

50. The second event rolled out when PW 15, the former husband of the victim, informed PW 7 that the son of the victim is aimlessly roaming on the street, and the Dumdum police have detained the son. PW 7 and PW 9 thus first rushed to the said PS to be informed there that the son of the victim was released and he left with the appellant. PW 7 and 9 then went to the house of the victim, where the victim and his son were supposed to be found. They did not find anybody there.

51. PW 7 thereafter called the said Manika Das, a property dealer, for the knowing whereabouts of the victim and son. The latter is to keep PW 15 posted about the victim and her son. She informed PW 7 that the appellant has grabbed the property of the victim. He has driven the victim and her son to destitution. She informed that the victim and her son have been staying at the house of PW 8.

52. PW 7 and PW 9 thereafter arrived at the house of PW 8 to be informed that the victim and her son had left on October 31st, 2012, with the appellant and his friend Narayan. PW 7 and 9 were accompanied by PW 8 to the house of Narayan. Narayan informed them that the victim and son are with the appellant. Narayan took the phone number of PW 9.

53. The appellant called PW 9 on that very day to inform that the victim and her son would be brought to the house of Narayan on November 14, 2012. On November 14, 2012, at Narayan's house, the victim and her son were present with the appellant. The son expressed her apprehension that the appellant would kill her mother. The son further implored PW 7 to take his mother with her. The victim, however, requested PW 7 to take her son. She explained that she had to be with the appellant to ensure that she gets money and a flat as promised by the appellant.

54. Thus, the evidence on record has clearly established that the victim and her son were last seen on November 14, 2012, at the house of Narayan. They were brought thereat by the appellant. The above chain of events has established that the victim and son were under the all-pervasive control of the appellant. The burden therefore shifted on the appellant to explain as to what happened with the victim after November 14, 2012.

55. The fourth circumstance is the lie that the appellant gave out to PW 8, namely that the victim and her son were leaving PW 8's house for a better rented accommodation. It has come on evidence that they went to the house of the appellant, instead. The wife of the appellant, Rani Shaw, has stated before the Magistrate under section 164 CrPC, that the appellant brought the victim and son to his house. The appellant therefore lied to PW 8 that he is shifting the victim and son to some other rented accommodation. The said lie indicates that the appellant was unable to pay the rent and further wanted to hide the location of the victim.

56. Equally, there is no cogent evidence on record to indicate that the appellant at all developed the property of the victim. Instead, the evidence on record has established that appellant demolished the house of the victim with a view to develop it. The evidence on record has further established that the appellant did not hand over any flat to the victim. He also did not pay Rs 1 crore to the victim, as promised.

57. The victim thus became a financial burden for the appellant since the latter had to pay for the stay of the victim. It was therefore convenient for the appellant to shift the victim to his house, thereafter move her out at a convenient time and place and then kill her.

58. The intention of the appellant regarding the victim and her house was clear to all, as would be evident from the meeting held at Naryan's house on November 14, 2012. PW 7, PW 8, and PW 9 were present thereat. The said PWs on that day came to witness the control of the appellant over the victim and his son. PW 8, who was a stranger to the family, was also aware of the exploits of the appellant over the victim.

59. The aforesaid witnesses also came to learn that the victim and her son are residing with the appellant. They further witnessed the fear of the son of the victim when the former asked his aunt, PW 7, to take her mother to her home to save the life of the victim. They further witnessed the apprehension of the victim when she refused to go with PW 7 as she thought that the appellant will not keep his promise of providing the flat and money to her if the latter losses the track of the former.

60. The victim, therefore, clearly understood and also made an attempt to make others understand that she would have to be in the continuous and uninterrupted company of the appellant to get the flat and money. She understood that she had to keep the appellant in her sight. In view of the knowledge of the PWs about the intention of the appellant vis-à-vis the victim, it was incumbent for the appellant to withdraw the victim from the view and oversight of the PWs to end the life of the victim.

61. The appellant understood if the victim is killed when she was residing at the house of the appellant, no one would enquire as to where the victim went from the house of the appellant as none would have any trace of the victim. Whereas, if the victim had been killed while she was residing in a rented accommodation, the appellant may not be able to take away victim to kill her without being noticed by the house owner and others. The evidence on record has established that PW 8, being the owner of the house where the victim and son resided, came to notice the torture committed upon the victim and son by the appellant. PW 8 thus emerged as witness against the appellant.

62. The appellant therefore could not afford to commit the same mistake of letting others know about the tumultuous relationship between the victim and appellant. He could not take the risk of anyone noticing that the victim is taken away by him, after which the victim will be found dead.

63. The appellant therefore moved out the victim from the house of PW 8 with a purpose. In this regard, one must note the lie of the appellant given out to PW 8 as regards the place of stay of the victim and her son. The appellant told PW 8 that the victim and her son is shifted to a better rented accommodation. He did not reveal to PW 8 that the victim and her son would be staying in the house of the appellant. An accused lying on a fact which is against him, invites an adverse inference against him. The said lie is one more circumstance pointing towards the guilt of the appellant.

64. Clearly therefore, the appellant wanted to hide the place of stay of the victim. He wanted to disassociate himself from the said place of stay. He was thus conscious that he would be held answerable for the disappearance of the victim, and may further be accused of causing the death of the victim if other persons come to know that the victim was last seen with the appellant. The appellant did not expect that her wife may give any statement against him. The said consciousness of the appellant is typical of a culprit who seeks to insulate him/her from all possible accusations of the crime that he or she is planning to commit.

65. The fifth circumstance relates to the appearance and conduct of the appellant, noticed by his wife, Rani Shaw, after his return to home, after allegedly dropping the victim at the rented accommodation. Rani Shaw has described the said conduct and appearance in her statement recorded under Section 164 CrPC. Rani Shaw, however, died before she could depose before the Court. The fact that she has recorded such a statement has been deposed by the magistrate, PW 12.

66. In view of the above, the evidentiary value of the statement under Section 164 CrPC in the absence of the deposition of the maker thereof needs to be determined.

67. A statement under Section 161, CRPC can be used for contradiction, meaning it can be used to impeach the credibility of a witness. Whereas a statement under Section 164 CRPC is for contradiction as well as for corroboration. The fact that a statement under Section 164, CRPC, also wields a corroborative value means that it can support the case of prosecution or may deny it. Thus, a statement under Sec. 164 CRPC does have some evidentiary value.

68. When a witness could not depose before the Court what she stated in her statement under Section 164, CRPC due to her death, the said statement does not, therefore lose its corroborative value. A section 164, CRPC statement, therefore, can be perused to ascertain whether the same corroborates with the other evidence on record. The purpose of a Section 164 CRPC statement is delineated in R. Shaji vs. State of Kerala reported in (2013) 14 SCC 266 wherein it was held as follows;

                    “26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 CrPC can be used only for the purpose of contradiction and statements under Section 164 CrPC can be used for both corroboration and contradiction.

                    …

                    27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is twofold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to tide over immunity from prosecution by the witness under Section 164.

                    Emphasis Applied

69. A statement under section 164 CrPC, therefore, binds its maker. The learned trial judge has referred to Section 32(1) of the Evidence Act to hold that the said Section 164 CRPC statement of Rani Shaw is admissible in evidence. Section 32(1), however, is attracted when the maker of a statement has spoken about the cause of his own death. In the present case, Rani Shaw has spoken about the death of the victim caused by the appellant, her husband. Thus, Section 32 is not attracted to the present case.

70. PW 12, the Ld. judicial magistrate, has deposed that Rani Shaw has stated before him that the behaviour, appearance and conduct of the appellant upon his return to home was abnormal. The wearing apparel of the appellant was mud and clay stained. The evidence on record has indicated that the dead body of the victim was found from a pond. The pond is stated to have mud.

71. When Rani Shaw enquired about the whereabouts of the victim from the appellant, the appellant did not give any clear answer. Rani Shaw further noticed that the appellant is no longer receiving any calls from the victim, which the former used to receive on regular basis from the latter.

72. PW 7 and 9 have deposed that Rani Shaw has related to them about the death of the victim caused by the appellant. Hence, it is not a case where Rani Shaw spoke about the involvement of the appellant in the murder of the victim for the first time in her section 164 CrPC statement

73. Rani Shaw did not have any motive to falsely implicate the appellant. The appellant has admitted in his examination under Section 313, CRPC that Rani Shaw was his wife. Rani Shaw has clarified that she is not certain as to whether appellant has killed the victim. The conduct of the appellant, however, raised doubts in her mind. The case of the prosecution therefore finds corroboration from the statement of Rani Shaw given under Section 164 CRPC.

74. The sixth circumstance has emerged from the post-mortem report of the victim. It has indicated that the victim has been strangled to death. As many as 8 injuries have been found on the person of the victim. Thus, the victim has not died as a result of an accidental fall in the pond. The defence has not put any suggestion that the water level of the pond was such that a person might die as a result of falling into it.

75. The statement under Section 164, CRPC of Rani Shaw has clearly indicated that the appellant accompanied the victim to drop her at the rented accommodation after which the dead body of the victim was found in the pond.

76. The evidence of PW 7, 8, 9, and 12 has clearly established that the Appellant wielded immense dominion over the movements and decisions of the life of the victim. In fact, when PW 7 asked the victim to come to her place, the victim explained her inability by saying that she had to be with the appellant to ensure that she gets one flat and the money that was promised to her. The victim was financially dependent on the appellant, even with respect to her own money, as evident from the recovery of the cheque book, issued by the Union Bank of India in favor of the victim, from the house of the appellant.

77. Therefore, in view of the fact that victim was under the complete and pervasive control of the appellant, it fell within the special knowledge of the appellant as to what happened to the victim after the appellant took the victim and her son with him from the house of PW 8, where the victim and her son were residing on rent, and further as to what the appellant did to the victim, after they left the house of the appellant.

78. The events which have taken place after the departure of the victim from the rented accommodation owned by PW 8 and then when she left with the appellant from the house of the appellant fell within the exclusive knowledge of the appellant. While an accused in a criminal trial has a right to remain silent about a fact appearing against him, the court is not prevented from drawing an adverse inference against the said silence.

79. The present case is one where on the one hand, there is clear proof that the victim was under the exclusive control of the appellant before her dead body was found in the pond. On the other hand, there is no clear proof as to what the appellant, being in the exclusive control of the victim, did to the victim before her death. In such a case, the Court has to arrive at the best possible inference from a comprehensive analysis of the circumstances which have been proved. Reference in this regard may be made to the decision in Vaibhav V. The State Of Maharashtra reported in 2025 INSC 800, wherein it was held was follows:-

                    16. In a case based on circumstantial evidence, answers to such questions are not found on the face of the record. Rather, the truth is found concealed in the layers of incriminating and exonerating facts, and the Court is required to arrive at a judicial finding on the basis of the best possible inference which could be drawn from a comprehensive analysis of the chain of circumstances in a case…..’

                    Emphasis applied

80. There will not emerge any clear answer from the face of the record as to what the appellant did to the victim when they were not in the view of the PWs after they had left the house of the appellant. In such a case as held Vaibhav decision (supra), the Court has to reasonably infer as to what the appellant could do to the victim when the latter was found dead and the appellant was last seen with the victim.

81. The evidence on record has established that the victim was last seen with the appellant. The above chain indicates the appellant could be the only person who had the opportunity to kill the victim. The inference of the guilt of the appellant becomes stronger since there were apprehensions expressed by the victim and family that the appellant may kill the victim. The inference gains greater force when the motive of the appellant stands proved. The post mortem report has established that the victim was strangulated to death and was also physically assaulted. The victim therefore died by human intervention, and the appellant was the only human who was with the victim and also the one who had reasons to kill he victim.

82. The following circumstances having been proved form a complete chain pointing towards the guilt of the Appellant:-

                    A. The appellant was known to the victim. The former was a tenant in the house of the latter. The victim heavily relied on the appellant after the death of her parents.

                    B. The appellant had an interest in the property of the victim. Accordingly, the appellant proposed to the victim that the former may be permitted to develop the property. The appellant promised one flat and Rupees 1 crore in return.

                    C. The appellant got the house of the victim demolished. He however did not provide any flat to the victim and the said money. As a result, the burden of residence of the victim and her son fell on the appellant.

                    D. The victim, however, insisted on giving her a flat and Rupees 1 cr. The appellant attempted to demonstrate his bona fides by arranging a rented accommodation for the victim and his son. He used to pay the rent to PW 8, the owner of the said rented accommodation

                    E. The victim and son were under the pervasive control of the appellant. When the son of the victim was roaming on the street and was detained by the Dum Dum police, the appellant reached the PS to get him released. The appellant therefore represented to the police that he was the guardian of the victim and was able to persuade the police to believe it. It was the appellant who brought the victim and her son to the house of Narayan, the friend of the appellant, upon being asked by PW 7 and 9 to see the victim and her son. The cheque book of the victim was recovered from the house of the appellant.

                    F. The victim and her son told PW 7 and 9 that the appellant would kill the victim. Thus, the victim sensed animosity of the appellant against her.

                    G. The appellant took the victim and her son from the rented accommodation and checked them in at his house. There may be two reasons for the same. The appellant was unable to bear the expenses, or the appellant planned to kill the victim by moving her out of the public eye.

                    H. The appellant told his wife that he was accompanying the victim to the rented accommodation, and on this pretext, the victim was withdrawn from the reach and eye of the wife of the appellant.

                    I. The wife of the appellant has stated that when the appellant returned home on that day, his behavior was unusual. The wearing apparels of the appellant were mud-stained. The same indicates that the appellant may have come in contact with the mud from the pond area where the dead body of the victim was found

                    J. The victim was thereafter found dead in a pond. The medical evidence clearly establishes that the victim died 2 days prior to the post mortem held on the 7th of December 2012. There was rigour mortis on the body. There was little gap between the time when the victim was last seen and when she died.

83. It is therefore evident from the above that the circumstantial evidence based on which the appellant was convicted was complete with motive, last seen theory, and it has been established that appellant had a pervasive and all-encompassing control over the person, property, and bank accounts of victim. The appellant took decisions for the victim. The appellant occupied the ground floor of the house of the victim till the time she was removed therefrom by the appellant and till her death. The decisions of Ramprasad Vs State of Maharashtra reported in (1999) 5 SCC Pg 30, Guruvindapalli Anna Rao Vs State of AP reported in 2003 CriLJ 3253 and Kanhaiyalal Vs State of Rajasthan reported in (2014) 4 SCC Pg 715 and Krishnan @ Ramaswamy Vs State of TN reported in (2014) 12 SCC Pg 279 thus are not applicable to the facts of the case.

84. In so far as the argument that all the circumstance against the appellant have not been put to him in examination under Section 313 of the CrPC, this Court has shown to Counsel for the Appellant all such circumstances in the questions put forth by the Trial Court.

85. For the reasons stated above the CRA 262 of 2016 fails and is hereby dismissed. Consequently connected all pending applications are dismissed.

86. The trial court records along with a copy of this judgement be sent down at once to the learned trial court for necessary action.

87. The appellant, if on bail, shall surrender to the jurisdictional Court. The jurisdictional police shall otherwise take the custody of the appellant forthwith and shall produce the appellant before the jurisdictional Court.

88. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as early as possible.

I agree.

Ajay Kumar Gupta, J.