Joydeep Neogi @ Bubai
Vs. State of West Bengal [2009] INSC 995 (8 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1285 OF 2006
Joydeep Neogi @ Bubai ....Appellant Versus State of West Bengal ....Respondent
(With Crl.A. No. 122 of 2007)
Dr. ARIJIT PASAYAT,
J.
1.
These
two appeals are inter linked and are therefore disposed of by a common
judgment. Challenge in these appeals is to the judgment of the Division Bench
of the Calcutta High Court upholding the conviction of the appellants except
that the order of conviction was modified and the appellants were convicted for
offences punishable under Sections 364,302,201 read with Section 34 of the
Indian Penal Code, 1860 (in short the `IPC'). Seven persons faced trial before
learned Additional Sessions Judge Alipurduar. Six of them i.e. present
appellants were convicted and one of them i.e. accused No. 4 was acquitted.
While accused No.2 Joydeep Neogi is the appellant in Criminal Appeal No. 1285
of 2006, Debasish Das- accused no.1 is the appellant in Criminal Appeal No. 122
of 2007. Accused nos. 3 and 6 are proforma respondents in Criminal Appeal No.
122 of 2007.
2.
The
prosecution version as unfolded during trial is as follows:
On 6 November, 2001
Ranadip (hereinafter referred to as "deceased") son of Kr. Mallick
Gupta was playing on a nearby playground of his house and as he did not return
even after the usual hour, his mother and other relatives started searching for
him, but without any result. At about 1.30 P.M., an anonymous telephone call
was received by a neighbour wherefrom information was gathered about wrongful
detention of Ranadip. When de facto complainant returned from his office, he
also made a search for his son, but, without any result and ultimately the
complaint was lodged with the local P.S. alleging kidnapping of Ranadip with
some dishonest intention.
2 It appears from
record that on receipt of the FIR of de facto complainant, S.I. Laskar of
Alipurduar P.S. took up the investigation and on 6th November, 2001 itself the
present appellants were detained for a brief period in connection with the case
started on the basis of written complaint of de facto complainant, but
subsequently on the same date the appellants were released.
On 16th November,
2001 getting information about locating of dead body of Ranadip at a place near
Buxer forest on the basis of information given by appellant Debasish @ Sona and
another accused Raju. On getting information about involvement of other persons
in the murder of Ranadip and removal of his dead body, all the seven persons
including the present appellants were arrested on 16th November, 2001 and
thereafter after recording the statement of witnesses, on receipt of post
mortem report of Ranadip, recovery of certain incriminating articles at the
instance of the appellants and on the basis of confessional statement of
accused Choton Sarkar, S.l. Laskar being the investigating officer of the case
found a strong prima facie case against seven persons including the appellants
under Section 363/364/302/201/34 IPC and on completion of investigation, charge
sheet was accordingly submitted against seven persons including the present
appellants.
3.
Accused
persons abjured guilt and therefore trial was held.
4.
Since
the case is based on circumstantial evidence, the trial Court referred to
various circumstances and held that the appellants were guilty while directing
acquittal of A4. As noted above, the judgment of the trial court was assailed
in appeal before the High Court. In both appeals the High Court, except the
modification of the conviction, upheld the finding of guilt and dismissed the
appeals.
5.
Learned
counsel for the appellants submitted that the circumstances highlighted do not
present a complete chain of circumstances and therefore the judgments of the
trial court and the High Court are not correct.
6.
Learned
counsel for the respondent-State supported the judgment of the trial court as
upheld by the High Court.
7.
From
the evidence it is clear that on 6.11.2001 Ranadip was last seen in the
Uttararmath. At that time, these above named four accused were also seen there
and upon questioning by the witnesses they gave false explanations and misled
the witnesses so that they did not go to the western side of the area. This
unusual and abnormal conduct on the part of the accused, no doubt creates an
adverse presumption against them.
8.
Now
the 2nd phase of this case comes out from the evidence of P.W.1 i.e. the
defacto complainant. It appears that after returning from his duty and being
informed regarding the entire matter he went out to search his son Ranadip in
the said math along with other local people and his brother. At that time, they
also found the four accused persons in that place. Part of his evidence is
corroborated by the evidence of his brother Manik Kr. Mallick Gupta i.e. P.W.7
who stated that at about 2.15 P.M. his brother Rabindra Mallick Gupta (Defacto
complainant) returned home from his office, they narrated the incident to him
and then he along with his brother and some other people went to search for
Ranadip in the ponds near the Uttararmath and when they were about to enter the
Uttarar Math area, accused Sona, Tuhin, Choton and Bubai came towards them and
asked addressing P.W.7 as Manik Dan as to where they were going, to which P.W.7
replied that they were going to search for Ranadip in the pond. The accused
named above stated that they searched for Ranadip in those ponds but Ranadip
was not there and after hearing the same, they came back to their house. P.W.4
corroborated this and stated that after return of Rabindra Mallick Gupta to his
house from duty at about 2.30 P.M., he along with Rabindra Mallick Gupta and
many other people went to search for Ranadip in the ponds of Uttarar Math and
near the same math they saw accused Sona, Bubai, Tuhin and Choton and they stated
to Rabindra Mallick Gupta that they had searched for Ranadip in the side of
pond and jungle and asked him to search for Ranadip on other sides. The above
named four accused persons were found present in the Uttarar Math on 6.11.2001
on and from 11.15 A.M. till 2.30 P.M. On 6.11.2001 failing to find out his son
Rabindra Mallick Gupta, the defacto complainant at about 3.45 P.M. along with
others went to the Alipurduar P.S. and lodged a written complain there. The
complaint is marked as Ext.1. It comes out from the evidence of PW 1 (father of
the deceased) that after lodging of the same in the P.S. on 6.11.2001, police
came to his house and asked him and his neighbours to show the place where
Ranadip was last seen playing. Accordingly, PW1 accompanied police to the
ground on the northern side of his house where Ranadip was last seen playing.
At that time also they found that these four accused Sona, Tuhin, Bubai and
Choton were present there and when police personnel were going to make a search
on the western side of the same ground, these four accused stated to them that
they made search on the said western side jungle and there was no necessity to
proceed towards that side. Accordingly, police did not proceed towards the
western side. Thereafter making search police went away. This part of the
evidence of P.W. 1 is corroborated by Ashit Bose (P.W.4) and Manik Kr. Mallick
Gupta (P.W.7). From the evidence of P.W.4 it appears at about 5 P.M. in his
presence police reached the house of Rabindra Mallick Gupta. (P.W.l) and the
members of the house narrated the incident to police and he also at that time
stated to the police that on the same date at about 11/11.15 A.M., while he was
coming through Uttarar Math, he found accused Sona, Bubai, Tuhin and Choton
were loitering here and there in the same math and deceased Ranadip, Bittu and
Sayan were also found playing there. According to P.W.4 he along with Daroga
Babu and others went to the same math when it was dark. But at the same time
they found these four above named accused to be loitering in the same Math and
they again stated also to Daroga Babu that they had searched for Ranadip in
jungle and other places but Ranadip was not there.
9.
P.W.7
also corroborated this by stating that towards the evening on the same day at
about 5.30 P.M. police came to their house and they narrated the incident to
them and also the incident of Uttarar Math and then they along with the police
personnel went to Uttarar Math where they again saw accused Choton, Sona, Bubai
and Tuhin present there.
10.
From
the evidence of P.W.5 i.e. one Swapan Roy it appears in the mean time on the
self same date i.e. on 6.11.2001 at about 1/1.30 P.M. there came a telephone
call in male voice to his house and he was asked to call some one from the house
of Mallick Gupta. This call was attended by Sipra Mallick Gupta. This Sipra
Mallick Gupta is examined as P.W.3 in this case and from her evidence it
appears, while she attended the telephone call one male person in low voice
saying "Chela Amader Kachaa Achaa, Khoja Khuji Kariban naa, policea Khabar
Deban Naa", (Ranadip is with us. Do not search for him. Do not inform
police) and when she enquired who was speaking and from where, at that time the
voice on the telephone was stopped. According to PW3, she narrated the incident
before her husband Manik Mallick Gupta, (PW 7), Ashit Bose (PW4), Bhupen
Debnath (PW11) and many other persons. All these PWs. have corroborated this
part of evidence of PW 3.
11.
From
the evidence of PW1, PW 2, PW 3, PW 4, PW7 i.e. Rabindra Kumar Mallick Gupta,
Nupoor Mallick Gupta, Sipra Mallick Gupta, Ashit Bose and Manik Mallick Gupta,
it is clear that the four accused named above were found in the Uttarar Math
since morning of 11 A.M. to 5 P.M.
when it was dark.
When a case rests purely on circumstantial evidence, the circumstances from
which the inference of guilt is sought to be proved must be cogent and firmly
established, and that should unerringly point towards the guilt of the accused,
and that must make a chain complete to form a view that the crime was committed
by the accused alone and none else.
12.
From
the trend of evidence discussed above it can be presumed like Ranadip
(deceased) all the four accused i.e. Sona, Tuhin, Bubai and Choton are the para
boys. The accused told the P.Ws not to search in a specific side of the Uttarar
Math and asked them to search Ranadip in other sides. The P.Ws i.e. even the
parents and other relatives of the deceased did not suspect anything. They
relied upon the accused on good faith. A criminal trial is not an enquiry into
the conduct of an accused `for any purpose other than to determine his guilt.
It is not disputed piece of conduct which is not connected with the guilt of
the accused is not relevant. But at the same time, however, unnatural, abnormal
or unusual behaviour of the accused after the offence may be relevant
circumstance against him. Such conduct is inconsistent with his innocence. So
the conduct which destroys the presumption of innocence can be considered as
relevant and material.
13.
So,
the presence of the accused for a whole day in a specific place and misleading
the P.Ws to search in other place and not allowing them to search in a specific
place certainly creates a cast iron cloud over the innocence of the accused
persons.
14.
The
circumstances noticed by the trial Court and the High Court are as follows:
(1) Debashish Das @
Sona (A-1), Joydeep Neyogi @ Bubai (A-2), Choton Sarkar (A-4) and Babban
Talukdar @ Tuhin (A- 6) were present in the Uttar-Math at about 11.15 A.M. when
the deceased along with Saiyan and Bittu were playing there. This has been
stated by Ashit Bose (PW-4), Sudipta Das (PW-9), Krishnan Sen Gupta (PW-10) and
Bhupin Dev Nath (PW-11).
(2) At about 11.30
A.M. Nupur Gupta (PW-2) and Krishna Dey (PW-6) went in search of the deceased
to Uttar Math.
When they reached the
municipal road, they saw Sona (A-1) coming on a cycle from the northern side of
the ground. He asked them as to what had happened. He was informed that the
deceased was not being found. Sona stated that the deceased, Bittu and Saiyan
were playing on the ground. However, when Saiyan's father took away Saiyan,
Bittu and the deceased also went away. At that time, Bubai (A-2), Choton (A-3)
and Tuhir (A-6) were standing under a tree on the southern side of the ground;
(3) When Ravindra
Gupta (PW-1) and other persons of the locality went in search of the deceased,
the accused diverted their search from the western side of the ground.
Similarly, when the police went in search of the deceased, these accused
diverted the search from the western side of the field. This has been stated by
Ravindra Gupta PW- 1, Ashit Bose PW-4 and Manik Gupta-PW7;
(4) On the same day
at about 6.30 p.m. Sona (A-1) was seen driving a motorcycle towards Alipur Duar
junction. Raju (A-5) was riding on the pillion and was carrying a bundle
(bochka).
This has been stated
by Debabrata Dhar (P W-12).
(5) On the same day
at about 6.30 P.M. Sona (A-1) made an extra judicial confession to Sudipta Das
(PW-9) outside the tea stall of one Malay. At that time Bubai (A-2) and Choton
(A-3) were inside the tea stall taking tea. This has been stated by Sudipta Das
(PW-9).
(6) On 16.11.2001
Sona (A-1) was arrested at 1:15P.M. Bubai (A-2) at 1:45 P.M., Chotan (A-3) at
1:25 P.M. and Tuhin (A-6) at 1:05 P.M. They were confined at P.S. Alipur Duar.
Proshanta Sen Gupta
(PW-15) and Subrata Sen Gupta (PW-16) met them in the lock up. The four accused
made extra judicial confessions before them.
(7) On 16.11.2001
Sona (A-1) and Tony (A-7) made disclosure statements under Section 27 of
Evidence Act and discovered the dead body of the deceased. This has been stated
by B.K. Laskar I.0 (PW-25). In consequence to the information furnished by
these two accused, the body of the deceased was discovered near the tonal
training office. This has been stated by Proshanta Sen Gupta (PW-15), Subrata
Sen Gupta (PW16), Provesh Biswas (PW-18), Atual Das (PW-19), Pranav Roy
(PW-23), B.K.Laskar I.0 (PW-25) and Sanjeev Basu (PW-26).
A seizure memo
exhibit P-9 and the inquest exhibit P-12 were prepared.
(8) On 19.11.2007
B.K. Laskar (PW-25) took Sona (A-1), Bubai (A-2) and Raju (A-5) to the western
side of the Uttar- Math, from there a pair of hawai chappals and a length of
nylon rope were seized vide exhibit-2/2. This has been stated by Ravindra Gupta
(PW-1), Ashid Bose (PW-4) and B.K. Laskar (PW-25). The hawai slippers were
identified by Ravindra Gupta (PW-1) and Nupur Gupta (PW-2) as belongings to the
deceased.
15.
The
circumstances clearly establish the accusations, so far as the appellant
Debasis Das (A-1) is concerned. There is no scope for interference in the
appeal filed by him. (i.e. Criminal Appeal No.122 of 2007) is concerned. But
the circumstances are not sufficient to fasten guilt on Joydeep (A-2) appellant
in Criminal Appeal No.1285 of 2006 is concerned.
His conviction is set
aside and he is acquitted of the charges. His appeal is allowed. He be released
from custody forthwith unless required in connection with any other case.
.........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
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