Amitava Banerjee @
Amit @ Bappa Banerjee Vs. State of West Bengal
J U D G M E N T
T.S. THAKUR, J.
appeal by special leave arises out of an order passed by the High Court of Judicature
at Calcutta whereby the conviction of the appellant for offences punishable under
Sections 302, 364 and 201 of the IPC and the sentence of life imprisonment awarded
to him have been affirmed. Briefly stated the prosecution case is as under:
Kumar Mondal, Sub-Inspector of Police was at the relevant point of time attached
to Jhargram Court. His family comprised his wife and a son named Snehasish
Mondal @ Babusona aged about 10/12 years residing at `B' Block of Thana Quarters'
Complex at Ghoradhara, Jhargram. In the same complex, lived the appellant,
whose father was also working as a Sub-Inspector of Police and was at the relevant
time posted at Beliabera Police Station.
According to the
prosecution, the deceased Snehasish Mondal was friendly with the younger brother
of the appellant and would usually play cricket with him in a park situate
behind the residential quarters and by the side of the BDO office. A few days
before the incident in question, the deceased is alleged to have come to the
house of the appellant to collect a cricket bat and ball for play in the park mentioned
above and seen the appellant in a compromising position with Mangala Deloi, PW10
aged about 20 years who was then working as a maid servant in the house of the appellant.
The prosecution case is that the appellant apprehended loss of face in the locality
on account of a possible disclosure of his involvement with his maid-servant
which according to the prosecution was the motive for silencing the innocent
boy for all times by killing him in cold blood.
12th of July, 1998, the deceased as usual went to play in the park but did not
return home by the evening. The parents of the deceased panicked and started a
search for the deceased which went fruitless. Asit Mondal, PW1 then lodged a
missing report at the Jhargram Police Station who announced the disappearance of
the boy in the locality on the public address system. According to Asit Mondal,
in the course of the search for the missing boy he came to know that he was seen
talking to the appellant and then going with him towards Kanchan Oil Mill on the
latter's bicycle. When the appellant returned to his quarter at 9.00 p.m. without
his bicycle he was questioned about the whereabouts of the deceased and the fact
that he was seen taking the boy towards the Kanchan Oil Mill but the appellant
denied the same. About the bicycle the appellant stated that he had handed the
same over to one of his friends.
July 13, 1998, Jhargram Police Station received information about a freshly dug
ditch filled up with a heap of loose earth in Sitaldihi jungle close to Kanchan
Oil Mill. The police on receipt of this information rushed to the spot and
found that a freshly dug ditch had indeed been filled up with loose earth and
that a black coloured Hero bicycle was parked against one of the trees at some
distance. The Executive Magistrate of the area was summoned to the spot by the
police and the earth heaped over the ditch got removed only to discover the
dead body of the deceased Snehasish Mondal with his hands tied at the back and a
handkerchief stuffed into its mouth. Recovery of the dead body of the deceased
and conduct of an inquest by the Executive Magistrate led to the registration
of FIR No.91 of 1998 for the commission of an offence under Sections 364, 302 and
201 of the IPC on 4the basis of a written complaint made to the above effect by
Asit Kumar Mondal father of the deceased Babusona.
police seized the bicycle from Sitaldihi jungle besides a cap which the appellant
was allegedly wearing on the date of the incident. Post-mortem examination
conducted by Dr. Rajat Kanti Satpati, PW 15 proved that the deceased had died
as a result of asphyxia because of throattling/strangulation which was ante-mortem
and homicidal in nature. In the course of investigation the police also seized a
spade which the appellant had allegedly borrowed from Jadunath Das, PW 6 and which
the appellant had on the fateful day left with Rukshmini Yadav, PW 11.
Statements of witnesses who had last seen the deceased, in the company of the
appellant, in the park and later going towards the Kanchan Oil Mill and inside
the Sitaldihi jungle were also recorded. Suffice it to say that on the
completion of the investigation a charge-sheet was filed against the appellant
before the Court of SDJM Jhargram who committed the case to the Court of
Sessions at Midnapore. The Sessions Judge in turn 5transferred the same to the
5th Additional Sessions Judge Midnapore, for trial and disposal.
the trial the prosecution examined as many as 22 witnesses in support of its case
including Asit Mondal, PW1 and his wife Smt. Chhanda Mondal, PW 14, who
supported the prosecution case. Gurupada Mondal, PW 2, who reported the
presence of the bicycle and the ditch in Sitaldihi jungle to the police, Sunil Deloi,
PW 5 who had seen the appellant coming out of the Sitaldihi jungle on 13th July,
1998 at 5.30-6.00 a.m., Jadunath Das, PW 6 who deposed about the borrowing of the
spade by the appellant on 12th July, 1998 in the morning, Rajib Roy Chowdhary,
PW 7, and Jiten Sen, PW 8 both of whom saw Babusona talking to the appellant in
the park and then going towards Sitaldihi jungle on the latter's bicycle.
Tarapada Mahato, PW 9 who saw the appellant and the deceased inside the
Sitaldihi jungle on 12th July, 1998 in the evening, Rukshmini Yadav, PW 11 who
testified to the appellant leaving a spade at her house on 12th July, 1998 in
the evening, Tarun Banerjee, PW13 who saw the bicycle 6in the Sitaldihi jungle and
identified it as that of the appellant. Dr. Rajat Kanti Satpati, PW 15 who
conducted the post-mortem examination, Dipak Kumar Sarkar, PW-16, Executive Magistrate,
who conducted the inquest, Tapan Kumar Chatterjee, PW17 who made an entry in
the General Diary under S.No.463 regarding the presence of a cycle and the ditch
in the jungle and Swapan Kumar Mohanti, PW20, Judicial Magistrate, who conducted
the test identification parade were also examined by the prosecution apart from
the Investigating Officer Shri Kushal Mitra, PW22.
a thorough and careful appreciation of the evidence adduced before it the Trial
Court concluded that the prosecution had failed to establish the motive for the
murder of the deceased as alleged by it. The Court held that Mangala Deloi,
PW10 who was the star witness of the prosecution to prove the alleged motive had
not supported the prosecution case in the Court. The witness had no doubt been
examined even under Section 164 of Cr.P.C. where she had supported the theory
underlying the alleged motive but that version had been disowned by her at the trial.
Since, however, the statement of the witness under Section 164 Cr.P.C. did not constitute
substantive evidence the same could not be relied upon for convicting the appellant
even when the witness had admitted that she had made a statement before the
Magistrate. The Court all the same held that the circumstantial evidence
available on record was so strong and so unerringly pointed towards the guilt of
the appellant that the absence of a motive did not make much of a difference. In
paras 68 and 69 of the judgment the Trial Court summarised the incriminating circumstances
that were in its opinion firmly established and that formed a complete chain proving
the guilt of the appellant. The Court observed: "
the present case, accused Amitava was seen on 12.7.98 at about 5.30 pm at Ghoradhara
park, Jhargram to take deceased Babusona therefrom by his cycle towards Kanchan
Oil Mill. He was again seen at Sitaldihi jungle with Babusona and the cycle. On
the same date he took the spade from the house of Jadunath. At that time he covered
the handle of the spade with a piece of newspaper and tied the spade with the
cycle with the help of Sutli. He kept the spade at the garden of Rukmini Yadab,
PW11 at about 7/7.30 pm on the same day.
He was seen in that
night without his cycle. On the following day i.e. On 13.7.98 at the very morning
he was seen coming out from Sitaldihi jungle without his cycle in a suspicious
and frightening manner as discussed earlier. At the material point of time when
the accused went to Sitaldihi jungle on 12.7.98 with deceased Babusona, the accused
was wearing a chocolate coloured full pant white half genji and one reddish cap
and deceased Babusona was wearing yellow-orange coloured shirt, blue half pant
and slipper. At the time when the accused was found coming out of Sitaldihi
jungle in the morning of 13.7.98, he was seen wearing a chocolate coloured full
pant and white genji, but without the cap.
The accused is
identified by several witnesses. His pant and genji were also seized by the
police from his house, which are also identified by the witnesses, who saw him
on 12.7.98 at the afternoon and also in the morning of 13.7.98. On 13.7.98 as
per information of the witnesses police had been to Sitaldihi jungle and there
discovered the place where the dead body of Babusona was kept under the earth. The
S.D.P.O, S.D.O and the Id. Executive Magistrate were called along with a photographer.
In their presence the dead body was recovered from the ditch after unearthing
the same. The cycle of Amitava, two pieces of newspaper and hawai chappal of
Babusona were recovered nearby the said ditch. Those are produced in court and
identified the witnesses. The dead body was identified by PW1, father of deceased
Babusona, as that of his son-Babusona. He lodged the FIR at that spot. Inquest
was held over the dead body of Babusona in presence of the witnesses - both by
the police and also by the Executive Magistrate. The hands and legs of deceased
Babusona were found to be tied with electric wire and his mouth was gagged with
handkerchief. Those articles were seized and produced in court and duly identified
by the seizure witnesses. Thereafter the dead body of Babusona was sent to
Jhargram S.D. Hospital where post mortem examination was held by the medical Board,
including the medical officer, PW15.
The post mortem examination
was held at 6.45 pm on 13.7.98 and the doctors' opinion is that the death of
Babusona took place about 24 hours back due to throttling/strangulation, which was
homicidal in nature. After recording the statements of several witnesses, I.O. (PW22)
arrested the accused and as shown by the accused the spade was recovered from
the premises of Rukmini Yadab (PW11). That spade is produced in court and identified
both Jadunath, PW 6, and Rukmini, PW 11, and that spade is produced in court and
identified by both Jadunath and Rukmini. Subsequently, on 15.7.98 as per the statement
of the accused his reddish cap and sandle were recovered from the bush within
Sitaldihi jungle in presence of the witnesses.
Those articles are produced
in court and identified by the seizure witnesses. The statement of the accused leading
to such discovery is also brought into evidence. The statements of witnesses,
Rajib, Jiten, Mongala, Rukmini and Jadunath were recorded by the Ld. J.M. Jhargram
u/section 164 Cr.P.C. Excepting Mongala, all other witnesses have given substantive
evidence in court in support of their earlier statement u/section 164 Cr.P.C.
on the basis of the aforesaid evidence, as discussed earlier, the chain of circumstantial
evidence is built up and it is complete one. The standard of proof required to
hold the accused guilty on circumstantial evidence is quite sufficient to establish
the chain of circumstances. In my considered view, it is so complete leaving no
reasonable ground for conclusion consistent with the innocence of the accused. The
circumstances brought before the court is quite sufficient to conclude by
holding the guilt of the accused. In the present case, there is no escape from
the conclusion that within all human probability the crime was committed by the
accused and none else."
On the above findings
the Trial Court found the appellant guilty of offences punishable under Section
302 of the IPC and sentenced him to imprisonment for life and a fine of
Rs.2,000/- in default whereof the appellant was directed to undergo a further imprisonment
for two months. No separate sentence was, however, awarded to 1the appellant for
the offences punishable under Sections 364 and 201 of the IPC though the said offence
held proved.9. Aggrieved by his conviction and sentence the appellant preferred
an appeal before the High Court of Judicature at Calcutta.
The High Court has by
the judgment and order impugned in this appeal affirmed the conviction and sentence
awarded to the appellant and dismissed the appeal. The High Court has while
doing so re-appraised the evidence on record held that the circumstances proved
at the trial were explainable on no other hypothesis except the guilt of the appellant.
The High Court observed: "If we assemble the above stated facts, evidence and
circumstances and consider the same in proper perspective the circumstances and
the evidence clearly lead to us to the only possible hypothesis that the appellant
was the only person who was responsible for the murder of Babusona.
There was no evidence
before the Court to prove that deceased was found in the company of any other person
on 12.7.98 before his murder. The evidence and circumstances clinchingly establishes
that the appellant took away Babusona from Ghoradhara park on his cycle and Babusona
was last seen by PW9 in the company of appellant in the Sitaldihi jungle and
thereafter he did not return and his dead body was recovered on 13.7.98. Besides
the appellant, no other person had the custody of the deceased before his murder
and the entire circumstances establishes and proves that the appellant was the
present appeal by special leave assails the correctness of the view taken by the
courts below. We have heard at considerable length Shri Ranjan Mukherjee
learned counsel for the appellant and Shri Pradeep Ghosh, learned senior counsel
for the respondent both of whom were at pains to take us through the evidence
adduced at the trial.
may at the threshold say that this Court does not ordinarily embark upon a re-appraisal
of the evidence where the courts below have concurrently taken a view on facts
one way or the other. In a long line of decisions this Court has held that an appeal
by special leave is not a regular appeal and that this Court would not
re-appreciate evidence except to find out whether there has been any
illegality, material irregularity or miscarriage of justice merely because a different
view is possible on the evidence adduced at the trial is no ground for the
Court to 1upset the opinion of the Courts below, so long as the same is a reasonably
possible view. Perversity in the findings, illegality or irregularity in the Trial,
causing injustice, or failure to take into consideration an important piece of evidence
have been identified as some of the situation in which this Court would re-appraise
the evidence adduced at the trial and not otherwise. (See: Radha Mohan Singh
alias Lal Saheb and Ors. v. State of U.P. (AIR 2006 SC 951), Bhagwan Singh v. State
of Rajasthan (AIR 1976 SC 985), Suresh Kumar Jain v. Shanti Swarup Jain and Ors.
(AIR 1997 SC 2291) and Kirpal Singh v. State of Utter Pradesh (AIR 1965 SC
is our task now to examine whether the judgment under appeal suffers from any
one or more of the above infirmities, having regard to the quality of the evidence
adduced at the trial.
may with that object in view refer to the essence of the depositions of the
witnesses examined at the trial. In his deposition Asit Kumar Mondal, PW1,
stated that he was residing with his wife and only son Snehasish Mondal in `B' Block
of the Thana Quarters Complex at Ghoradhara, Jhargram. Amit Banerjee resided with
his wife and their three sons in `A' Block opposite to Block `B' in which the witness
resided. On 12th of July, 1998, the deceased had gone to play in Ghoradhara
park situate in front of BDO office but did not return home till evening. He
was, therefore, asked by his wife, PW14 to search for their son. In the course of
the search he came to know from one Rajib Roy Chowdhury, PW7 also a resident of
the same Thana Quarters Complex that he had seen Babusona sitting in the park
at about 5.00-5.30 p.m. and later seen him going with the appellant on his bicycle
toward Kanchan Oil Mill following the western road touching the said park. The witness
also deposed about the missing report lodged by him in Jhargram Police Station
marked Ex.13 comprising G.D. Entry No.438 dated 12th July, 1998. The G.D. Entry
gave the description of the missing boy and the clothes that he was wearing at the
time of his disappearance.
Mondal, PW 14, who happened to be the mother of the deceased, has in her
deposition stated that at about 2 p.m. on 12th July, 1998 Babusona, the
deceased expressed his desire to go out for bringing two parrots promised to
him by the appellant. At the instance of the mother, the deceased instead went
for his drawing classes from where he returned at about 4.45 p.m. Soon
thereafter and following a signal from the appellant he went up to the roof of
the flat occupied by the appellant where the later was standing. Sometime later
the appellant and Babusona were both seen by the witness going towards the
nearby park. The appellant was wearing a cap on his head, one white ganjee and a
chocolate coloured full pant.
Roy Choudhury, PW 7, deposed that he had seen Babusona sitting on a Bench at
about 5.00-5.30 p.m. on 12th July, 1998 when the appellant came there, called
out to Babusona and took him away on his bicycle by making him sit on the front
rod of the cycle. The witness admitted that he was examined under Section 164
of the Cr.P.C. which statement was exhibited as Ext.7/1. Also relevant at this
stage is the deposition of Jitin Sen, PW 8, who testified that he had seen Babusona
at the Ghoradhara Park when the appellant came there called the deceased and took
him away on his bicycle. The deceased and also the appellant were, according to
the witness, well known to him as both of them were sports lovers.
Mahato, PW9, who was an employee of the Kanchan Oil Mill and a resident of
village Kalinagar, in his deposition stated that on 12th July, 1998 at about 6.00-6.30
p.m. he was returning from his duty from Kanchan Oil Mill following the usual path
he noticed a bicycle standing with the support of a tree inside the Sitaldihi
jungle. He also noticed two boys one about 10-11 years and another 18-19 years
standing at a distance of about 10/12 cubits from the said bicycle.
The witness further
stated that the boys on noticing him proceeded further inside the jungle holding
each other's hands. On the following day i.e. 13th July, 1998, he came to know
about the recovery of a dead body from a ditch inside Sitaldihi jungle. He at
once rushed to the place and saw the dead body of a boy aged 10/12 years lying in
the ditch. He recollected that it was the same boy whom he had seen on the previous
day. Witness further deposed that he identified the 18-19 years boy as the one whom
he had seen on 12th July, 1998 in the Sitaldihi jungle in the test
prosecution has also placed reliance upon the deposition of Jadunath Das, PW 6,
who also happened to be one of the residents of the police complex and knew the
appellant and the deceased. According to this witness on 12th July, 1998 which happened
to be a Sunday, the appellant called him at about 10.30 in the morning and
asked for the spade which the witness owned as the former wanted to plant
flowers. The witness further stated that the appellant took the spade and
wrapped its wooden part with a piece of newspaper and `Sutli' (jute string) and
carried the spade with him tied to his bicycle. The spade was not, however,
returned by the appellant to him. The witness identified the spade seized by the
police and marked Ex.11 to be the one which the appellant had borrowed from him
on the date mentioned above.
of Rukshmini Yadav, PW11 also bears relevance to the spade referred to by
Jadunath Das, PW6. According to this witness, her children also take part in
different sports. The appellant was according to this witness well acquainted
to her and others in the locality. The witness stated that on 12th July at about
7.00-7.30 p.m. the appellant came to her house and called for her and kept one spade
in the garden stating that he would take the same back on the following
morning. The witness further stated that on 13th July, 1998 at about 9.00-9.30
p.m. the appellant accompanied by the police came to her house and the spade
that was left by him was seized at his instance. A seizure memo Ex.10 was also
prepared on which the witness had affixed her signature.
Deloi, PW 12 was examined by the prosecution to prove that he had reported the
presence of a graveyard and a bicycle in the Sitaldihi jungle, and seen 1the
appellant coming out of the Sitaldihi jungle on the 13th July, 1998 early in
the morning. At the trial this witness has partly supported the prosecution. He
has stated that about 2= years ago he had noticed one bicycle and some
newspapers lying near graveyard but denied having reported the matter to the local
police along with Gurupada Mondal, PW 2. He also denied having seen the
appellant coming out of the Sitaldihi jungle in the morning of 13th July, 1998.
The witness was declared
hostile and was cross-examined. He was confronted with the statement made
before the police which was denied. The refusal of the witness to support the
prosecution case has not made any material difference having regard to the fact
that Gurupada Mondal, PW2 has supported the prosecution and stated in his deposition
that a black colour bicycle and the ditch which looked like a fresh graveyard and
a pair of chappal lying nearby besides a newspaper was noticed by him inside the
jungle and reported by him and Aswini Deloi, PW 12 to the police.
Banerjee, PW13 was occupying the ground floor flat in the `B' Block of the
complex and was familiar with the appellant as also the deceased-Babusona.
According to his deposition on 12th July, 1998 when he returned home he learnt
from his wife that Babusona was missing. He rushed to the house of Babusona's
father and asked him whether a report regarding missing had been lodged with
the police. Till mid-night Babusona could not be traced despite efforts made by
police and a public announcement made on a loudspeaker. On the following day he
noticed a gathering of people including police personnel on the Sitaldihi
jungle. Asit Kumar Mondal, PW1 was also present on the spot and was weeping.
A bicycle standing nearby
was also seen by the witness which belonged to the appellant. He recognised the
bicycle, as he too made use of it occasionally. He is also a witness to the
seizure of the clothes which the appellant was wearing on the fateful day.
Although the witness has been cross-examined extensively yet nothing has been extracted
from him that could shake his credibility. In his cross-examination the witness
has stated that the appellant had on 12th July, 1998 at about 9.00/10.00 p.m.
told him that his bicycle had been taken by one of his friends but he failed to
disclose the name of his friend and said that the friend was simply known to
him by name.
Rajat Kanti Satpati, PW15 conducted the post-mortem on the dead body of the
deceased and found the following injuries: "External Injuries:
(1) Homatoma 1" x
1" over the occipital region of the scalp and =" x =" on the front
and back of right pinna.
(2) Scratch mark
surrounding both the wrist joint.
(3) Abrasion on
buccal surface on upper lip.
(4) Continuous horizontal
ligature mark around the lower part of neck.
(5) Old hemorrhagic
mark both upper and lower jaw.
10" x 6" upper part of back of chest and eccymosis 8" x 6" lower
part of back and also eccymosis both of the axilla and noted.
On section of the neck
below ligature no perchmentization in the subcantanus tissues. Haemorrhage is
noted. On further dissection caretidartery intinct both sides intact. Mussels
platysma mark and lacerated left laterally and haemorrhage in and around
injuries. Fracture of the hyoid bone on the left side and haemorrhage around fracture
hyoid which is resist to washing. Stomach healthy contains full particles. In our
opinion of death is asphyxia as a result of throattling/strangulation which is antemortem
and homicidal in nature."
witness further stated that injury no.4 could be caused due to tying of the neck
with a substance like `Sutli'. According to the witness the death of the
deceased had occurred approximately 24 hrs. prior to the post-mortem examination
which was conducted at 6.45 p.m. on 13th July, 1998.
Kumar Sarkar, PW16 is a witness to the recovery of the dead body of deceased
Babusona from the ditch in the jungle and the inquest that followed.
Kumar Chatterjee, PW17 and Swapan Kumar Pal, PW18 are police witnesses. While the
former has proved the GD No.438 dated 12th July, 1998 lodged by Asit Kumar Mondal
regarding the missing report of his son Babusona, the latter is a witness to the
seizure of the bicycle and the recovery of the dead-body from the ditch inside the
Sitaldihi jungle. Dilip Bhattacharyya, PW 19, has scribed the first information
report which he wrote under the instruction of the first informant, Asit Kumar
Mondal and which has been marked Ext.1. In cross-examination the witness stated
that as soon as the dead- body was identified by the father of the deceased the
officer-in-charge instructed him to write down the FIR and he accordingly wrote
the FIR as per the narrative given by Asit Kumar Mondal, PW1.
Kumar Mahanti, PW20, Judicial Magistrate, recorded the statement of Rajib Roy Chowdhury,
PW 7 and Jiten Sen, PW8 under Section 164 of the Cr.P.C. He also recorded the statement
of Jadunath Das, PW6 and Rukshmini Yadav which was marked as Ext.11. Statement
of Tarapada Mahato PW9 is also recorded by the witness. The Magistrate also testified
the holding of a test identification parade on 6th August, 1998 as per the
orders of the Ld. Sub-Divisional Judicial Magistrate, Jhargram.
In his cross-examination
the witness stated that he has administered oath to the witnesses for the statement
recorded by him but the same is not recorded in the order-sheet or the statement.
There was no serious challenge to the test identification parade in the cross-examination
except that undertrial prisoners are produced by the Sub-Jailor and were mixed
with the suspect.
The particulars of the
cases in which the undertrial prisoners were in custody were not, however, recorded
in the proceedings. Tapas Giri, PW21 took the photographs on the spot as per the
instructions of police while Kushal Mitra, PW22 is the Investigating Officer who
in his deposition has proved the various steps that were taken in the course of
investigation including the seizures made, the statement of the witnesses recorded,
the conduct of the inquest, the post-mortem and the test identification parade.
The appellant led no evidence in his defence.
Mukherjee at the very outset argued that in a case based on circumstantial
evidence proof of motive of the commission of offence of murder is extremely
important. He submitted that prosecution had in the present case failed to
prove the motive alleged by it which would break the chain of circumstances and
resultantly benefit the appellant. He urged that even when Mangala Deloi, PW10 had
supported the prosecution version regarding the alleged motive in her statements
under Sections 161 and 164 of the Cr.P.C., the same did not constitute
substantive evidence in the case and could not, therefore, be made use of for
holding the motive to have been proved.
for the commission of an offence no doubt assumes greater importance in cases resting
on circumstantial evidence than those in which direct evidence regarding
commission of the offence is available. And yet failure to prove motive in cases
resting on circumstantial evidence is not fatal by itself. All that the absence
of motive for the commission of the offence results in is that the court shall
have to be more careful and circumspect in scrutinizing the evidence to ensure
that suspicion does not take the place of proof while finding the accused guilty.
Absence of motive in a
case depending entirely on circumstantial evidence is a factor that shall no doubt
weigh in favour of the accused, but what the Courts need to remember is that motive
is a matter which is primarily known to the accused and which the prosecution may
at times find difficult to explain or establish by substantive evidence. Human nature
being what it is, it is often difficult to fathom the real motivation behind the
commission of a crime. And yet experience about human nature, human conduct and
the frailties of human mind has shown that inducements to crime have veered around
to what Wills has in his book "Circumstantial Evidence" said:
inducements to crime are the desires of revenging some real or fancied wrong;
of getting rid of rival or an obnoxious connection; of escaping from the
pressure of pecuniary or other obligation or burden of obtaining plunder or other
coveted object; or preserving reputation, either that of general character or
the conventional reputation or profession or sex; or gratifying some other
selfish or malignant passion."
legal position as to the significance of motive and effect of its absence in a given
case is fairly well-settled by the decisions of this Court to which we need not
refer in detail to avoid burdening this judgment unnecessarily. See Dhananjoy
Chatterjee alias Dhana v. State of W.B. 1994 (2) SCC 220, Surinder Pal Jain v. Delhi
Administration, 1993 Suppl. (3) SCC 91, Tarseem Kumar v. Delhi Administration,
1994 Suppl. (3) SCC 367, Jagdish v. State of M.P., 2009 (12) Scale 2580, Mulakh
Raj and Ors. v. Satish Kumar and Ors. 1992 (3) SCC 43.
was next argued by Mr. Mukherjee that the evidence adduced at the trial does not
form a complete chain and that apart from the improbability of the prosecution
version there were certain gaping holes in the prosecution story which would render
it unsafe for any Court to pronounce the appellant guilty. He urged that in a case
resting entirely on circumstantial evidence it was necessary for the prosecution
to establish the circumstances that may be said to be incriminating against the
accused but the said circumstances ought to be consistent only with the guilt of
the accused in order that the Court may declare him guilty. Both these
requirements had, according to Mr. Mukherjee, failed in the instant case
entitling the appellant to an acquittal.
Ghosh, on the other hand, argued that the circumstances relied upon by the
prosecution had not only been firmly established but the same form a complete
chain that leaves no room for any conclusion other than 2the guilt of the appellant.
He referred to the findings recorded by the two Courts below in this regard and
submitted that the appellant had not been able to either question the evidence that
proved the circumstances or the inference that inevitably flowed from the same.
tests applicable to cases based on circumstantial evidence are fairly
well-known. The decisions of this Court recognising and applying those tests to
varied fact situation are a legion. Reference to only some of the said
decisions should, however, suffice. In Sharad Birdhichand Sarda v. State of
Maharashtra, 1984 (4) SCC 116 this Court declared that a case based on
circumstantial evidence must satisfy, the following tests: "
(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."
the same effect are the decisions of this Court in Tanviben Pankaj Kumar Divetia
v. State of Gujarat 1997(7) SCC 156, State (NCT of Delhi) v. Navjot Sandhu @ Afsan
Guru 2005 (11) SCC 600, Vikram Singh & Ors. v. State of Punjab, 2010 (3) SCC
56, Aftab Ahmad Ansari v. State of Uttaranchal, 2010 (2) SCC 583. In Aftab Ahmad
Ansari (supra) this Court observed:
"In cases where
evidence is of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should, in the first instance, be fully established.
Each fact must be proved individually and only thereafter the court should consider
the total cumulative effect of all the proved facts, each one of which reinforces
the conclusion of the guilt.
If the combined effect
of all the facts taken together is conclusive in establishing the guilt of the
accused, the conviction would be justified even though it may be that one or
more of these facts, by itself/themselves, is/are not decisive. The
circumstances proved should be such as to exclude every hypothesis except the one
sought to be proved. But this does not mean that before the prosecution case succeeds
in a case of circumstantial evidence alone, it must exclude each and every hypothesis
suggested by the accused, howsoever extravagant and fanciful it might be."
What, therefore, needs to be seen is whether the prosecution has established the
incriminating circumstances upon which it places reliance and whether those
circumstances constitute a chain so complete as not to leave any reasonable ground
for the appellant to be found innocent. Both the Courts below have, as seen
earlier, appreciated the evidence adduced in the case and enumerated the circumstances
that have been according to them established by the prosecution.
Having been taken
through the evidence adduced at the trial to which we have referred in some detail
in the earlier part of this judgment, we have no manner of doubt that the
prosecution has satisfactorily and firmly established the following circumstances
on the basis of the evidence adduced by it:
(1) That at about 2 p.m.
on 12th July, 1998 Babusona, the deceased expressed his desire to go out for
bringing two parrots promised to him by the appellant. At the instance of his mother,
Chhanda Mondal, PW14, the deceased was instead sent for his drawing classes
from where he returned at about 4.45 p.m. Soon thereafter and following a signal
from the appellant he went up to the roof of the flat occupied by the appellant
where the latter was standing. Sometime later the appellant and Babusona were
both seen by Chhanda Mondal, PW14 going towards the nearby park. The witness
again noticed the appellant proceeding on his bicycle wearing a cap on his
head, one white ganjee and a chocolate coloured full pant.
(2) The deceased Babusona
did not return home from the park till evening, whereupon the parents of the deceased
started a search for him. Deposition of Asit Kumar Mondal, PW1 father and Smt. Chhanda
Mondal, PW 14, mother of the deceased respectively clearly establish this fact.
(3) When the search undertaken
by the parents proved fruitless, Asit Kumar Mondal lodged a missing report at the
Jhargram Police Station, which report was registered under General Diary No.
438 dated 12th July, 1998 at 6.55 p.m. marked as Ext. 13 at the trial. The
Jhargram Police Station on receipt of the report made an announcement regarding
the disappearance of Babusona with the help of loudspeaker in the area. The deposition
of Asit Kumar Mondal, PW1 and Chhanda Mondal, PW14 clearly establish this
(4) At about 8.30 p.m.
on 12th July, 1998 the parents of the deceased Asit Kumar Mondal, PW 1 and Chhanda
Mondal, PW14 saw the appellant entering his (appellant's) residential quarter from
the rear door of the quarter. When PW 1 asked him about the whereabouts of the deceased
the appellant initially hesitated and showed his ignorance regarding the whereabouts
of Babusona. The deposition of Asit Kumar Mondal, PW 1 3establishes that at that
time the appellant was without any chappal on his feet and the cycle that he
(5) The deceased-Babusona
was last seen by Rajib Roy Chowdhury, PW 7 and Jiten Sen, PW8 in the park talking
to the appellant and shortly thereafter going with the appellant on his bicycle
towards the Kanchan Oil Mill which is in the same direction as of Sitaldihi
jungle. The deposition of the said two witnesses has firmly established this fact
especially because nothing has been brought out in their cross-examination which
may discredit their version or render them unreliable.
(6) The deceased and the
appellant were seen in the Sitaldihi jungle by Tarapada Mahato, PW9 while the
said witness was returning home from Kanchan Oil Mill. On seeing the witness
the appellant and the deceased proceeded deeper into the Sitaldihi jungle.
(7) On the following day
i.e. 13th July, 1998 Jhargram Police Station received information about a newly
dug ditch inside the Sitaldihi jungle at some distance from the residential complex
where the appellant and the deceased used to live. This information was recorded
in Diary No.463 dated 13th July, 1998 marked as Ext.17. The depositions of
Gurupada Mondal, PW2 established this fact. On receipt of this information the
police rushed to the place inside the Sitaldihi jungle and found a newly dug ditch
covered with loose earth. Executive Magistrate, Shri Dipak Kumar Sarkar, PW 16 was
also sent for besides a photographer named Tapas Giri, PW 21. In their presence
and the presence of other witnesses the ditch was dug up and the body of the deceased
recovered from the same. The deposition of Asit Kumar Mondal, PW 1, Gurupada
Mondal, PW2, Kushal Mitra, PW 22, Sunil Deloi, PW5, Tarun Banerjee, PW13, Dipak
Kumar Sarkar, PW16, Swapan Kumar Pal, PW18 and Dilip Bhattacharyya, PW19 firmly
establish this fact.
(8) At some distance from
the place where the dead body was buried, the police found a pair of hawai
chappal, two leaves of Ananda Bazar Patrika Newspaper apart from the cycle that
was parked against a tree. Asit Kumar Mondal recognized the hawai chappal to be
that of his son-Babusona and the cycle to be that of the appellant. The cycle
was also recognised by Tarun Banrejee, PW13 to be that of the appellant.
(9) Dead body of the Babusona
was lying on his back with hands tied behind. The legs were also tied with the
help of electric wire. One handkerchief was also stuffed inside the mouth of
the deceased and `Sutli' (jute string) was found around the neck of the deceased.
The depositions of Asit Kumar Mondal, PW1, Gurupada Mondal, PW2, Dilip Namata,
PW3, Sunil Deloi, PW5, and Kushal Mitra, PW22 establish this fact apart from establishing
that there were marks of injuries on different parts of the body including the
(10) The deceased was
found wearing blue coloured half pant and yellow orange mixed half shirt. These
were the very same clothes the deceased was wearing when he was last seen
alive. Depositions of Asit Kumar Mondal, PW1, Chhanda Mondal, PW14, Jiten Sen, PW8,
Tarapada Mahato, PW9 and Kushal Mitra, PW22 establish this fact.
(11) The appellant was
identified by the said Tarapada Mahato, PW9 in T.I. Parade conducted on 6th August,
1998, by Swapan Kumar Mahanti, Judicial Magistrate, examined at the trial as
PW20, as the same boy whom he had seen inside the Sitaldihi jungle along with the
deceased at about 6.00/6.30 p.m. on 12th July, 1998.
(12) From the Sitaldihi
jungle a cap which the appellant was wearing on the fateful day was also
recovered in the presence of Gurupada Mondal, PW2 and Dilip Namata, PW3. 3(13)
Apart from leaves of Anand Bazar Patrika, the `Sutli' found tied around the
neck of the deceased was also seized by the police along with the electric wire
marked M.O. Ext.XIII. Depositions of Asit Kumar Mondal, PW1, Dilip Namata, PW3,
Sunil Delio PW5, and Kushal Mitra, PW22 establish the fact.
(14) A spade that was
dropped by the appellant in the evening of the 12th July, 1998 at the house of
Rukshmini Yadav, PW11 telling the said witness that he would collect it the
following day was also seized by the police at the instance of the appellant.
(15) The spade had
been taken by the appellant on the morning of 12th July, 1998 from Jadunath
Das, PW6, on the pretext of planting some flowers. The witness also proved that
the appellant had wrapped the wooden part of the spade with newspaper and tied
it with `Sutli' (jute string) and carried the same on his bicycle.
(16) The deposition of
Dr. Rajat Kanti Satpati, PW15 who conducted the post-mortem examination and opined
that the deceased had died within 24 hrs. prior to the post-mortem which supports
the prosecution version that the deceased was done to death around 6.30 or so
in the evening on 12th July, 1998. The death was according to this witness
homicidal and asphyxia caused for throttling and strangulation which fact is also
clearly established by the prosecution. The doctor also found a ligature mark
around the neck of the deceased which could be caused by the `Sutli'.
(17) The clothes which
the appellant was wearing according to the witnesses Sunil Deloi, PW5, Rajib
Roy Chowdhury, PW7, Jiten Sen, PW8 and Smt. Chhanda Mondal, PW14 seized by Kushal
Mitra, PW22 in the presence of Asit Kumar Mondal, PW1, and Tarun Banerjee PW13
during investigation were duly identified by them in the Court.
above circumstances are, in our opinion, not only established, but they form a complete
chain, that leaves no manner of doubt, that the crime with which the appellant stood
charged was committed by him and no one else. The deposition of the mother of
the deceased, that Babusona wanted to go to the appellant to fetch two parrots which
the latter had promised, that he did after returning from the drawing tuition
go to the appellant on getting a signal from him, sets the stage for drawing
the deceased out of the house.
He is shortly
thereafter seen talking to the appellant who calls out for him in the park and
carries him away on his bicycle towards Kanchan Oil Mill which fact has been
proved by two witnesses whose deposition does not suffer from any embellishment
or contradiction. The fact that Babusona and the appellant were seen together in
Sitaldihi jungle around 6.00/6.30 p.m. on 12th July, 1998 is a highly incriminating
circumstance, especially when according to the medical evidence the time of death
of the deceased was also around the same time.
The deceased having been
last seen with the appellant around the time he was killed is a circumstance which
together with other circumstances proved in the case, are explainable only on
one hypothesis that the appellant was guilty of killing the deceased. The fact that
the appellant had borrowed the spade, tide it with `Sutil' after wrapping the wooden
part with the newspaper is fully established by the statement of Jadunath Das,
PW6. So also the deposit of the spade on 12th July, 1998 in the evening with Rukshmini
Yadav, PW11 stands established beyond any doubt whatsoever.
The presence of the
newspaper near the ditch where the deceased was burried and the recovery of the
`Sutli' from around the neck of the deceased where it had left a ligature mark are
also telling circumstances which are explainable only on the hypothesis that
the appellant was the author of the crime. Recovery of the cap which according to
the prosecution witnesses was worn by the appellant on the date of occurrence
from Sitaldihi jungle is also a circumstance that establishes that the appellant
was in the jungle on 12th July, 1998 around the place from where the dead body was
recovered. Similarly, the recovery of the bicycle which the appellant owned from
Sitaldihi jungle, from near the place where the dead body was burried is not explainable
on any hypothesis except the guilt of the accused-appellant.
The fact that the
appellant had late in the evening on 12th July, 1998 left the spade at the house
of Rukshmini Yadav, PW11 and entered the flat from the rear door without his
chappals as also the fact that when asked where his bicycle was, he gave a false
explanation too are incriminating circumstances which are important links in the
chain of the circumstances.
Mukherjee's argument that Tarapada Mahato, PW9 could not have seen the boys standing
in Sitaldihi jungle from inside Kanchan Oil Mill, has in our opinion, no merit
whatsoever. The witness has clearly stated that he had seen the boys (appellant
and the deceased) while he was going home by the path which he everyday takes
for that purpose. Nowhere has the witness suggested that he had seen the boys
from the precincts of the Mill. So also the argument that Tarapada Mahato, PW9
was a procured witness has not impressed us.
There is nothing in the
cross-examination of this witness that may warrant rejection of his testimony. The
mere fact that the witness did not volunteer to go to the police to say that
the two boys i.e. the appellant whom he described as a boy aged 18/19 years old
and the deceased whom he described as a boy 10/11 years old, were seen by him
together in the Sitaldihi jungle on 12th July, 1998, would not make the
deposition of this witness suspect. The statement of this witness was recorded
when the police started questioning the employees of the Mill about the
Narration of what the
witness had seen in the course of the investigation cannot be said to be so highly
belated or afterthought as to cast a doubt about the veracity of the witness especially
when the witness had not seen any crime being committed. He was simply a
witness to a fact which could independent of other circumstances be a wholly
innocent and innocuous circumstance. The criticism of the learned counsel against
the conduct of the test identification parade is also without any merit.
The fact that the suspect
was kept in a room separate from the room in which the witness was made to sit
before the T.I. 4parade proceedings were held is much too clear from the
statement of the magistrate who conducted the T.I. parade to call for any adverse
inference. All told the investigation into the unfortunate incident and the
collection of the evidence has been fair and objective. One reason for such
fairness and objectivity could be the fact that the deceased and the appellant
were both wards of police officials. There was, therefore, no room for
favouring one over the other. In the totality of the above circumstances, we see
neither any illegality, nor any miscarriage of justice in the judgments and
orders under appeal to call for our interference.
the result this appeal fails and is hereby dismissed.