Kiriti Pal vs State Of West Bengal

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELALTE JURISDICTION

CRIMINAL APPEAL NO.50/2014

KIRITI PAL ..Appellant Versus STATE OF WEST BENGAL .. Respondent

WITH

CRIMINAL APPEAL NO. 1725/14

DURGA SUTRADHAR ..Appellant Versus STATE OF WEST BENGAL ..Respondent AND

CRIMINAL APPEAL NO.1841/2012

SIDDIQUE MIA & ANR. ..Appellants

Versus

STATE OF WEST BENGAL & ORS. ..Respondents

JUDGMENT

R. BANUMATHI, J.

These appeals by way of special leave arise out of the Signature Not Verified Digitally signed by Shashi Sareen Date: 2015.04.16 09:37:58 IST judgment dated 20.6.2012 passed by the High Court of Calcutta Reason:

in Death Reference No. 3/2011 and Criminal Appeals 2

No.471/2011 and 484/2011 confirming the conviction under

Section 302/120 B IPC and modifying the death sentence as

that of life imprisonment and further confirming the conviction

and sentence imposed on the appellants-accused under Section

25(i)(a) (b) of the Arms Act.

2. Briefly stated, case of the prosecution is that

deceased Anjali Goswami was married to one Karuna Sindhu

Goswami. Her husband used to run a line hotel at Mohd. Bazar

and he died in a road accident in the year 2000. Her daughter

committed suicide in the year 2006 and son also died in a road

accident in the year 2008. Anjali started looking after the

business of line hotel of her husband but subsequently leased

out the same to PW14–Bhagyadhar Dhibar and started a

beauty parlour and a cloth shop at Mohd. Bazar which she

subsequently shifted to Suri in a rented accommodation of

PW10-Manash Chakraborty. Fourth appellant–accused Durga

Sutradhar was engaged by Anjali to run her beauty parlour.

Anjali purchased a house at Nutanpally, Suri and started

residing there. While so residing, first accused Kiriti Pal became

acquainted with Anajli and developed friendship and intimacy

and frequently used to visit Anjali’s residence. 3

3. On the fateful day of 11.11.2008, deceased-Anjali

saying that she has to attend a function at Rajnagar went out

with first accused on his motor cycle and on the following day

i.e. 12.11.2008, she was found dead. On the basis of complaint

lodged by PW1-Swapan Mondal on 12.11.2008, around 9.45

a.m. a case was registered at Sadaipur P.S. Case No.74/2008

under Section 302 IPC on the death of unknown female lying in

a jungle locally called as Babuibona Jungle 25 kms away from

Anjali’s house. Her neck was tied with one end of saree she was

wearing and the other end of the saree was tied with tree

(Sonajahuri) suggesting that the death was homicide. PW37-

Santosh Kumar Ghosh, Sub Inspector of Police, who registered

the F.I.R. had taken up the initial investigation. PW37

inspected the spot and arranged for photographs and made

seizure and recovered material articles from the spot where the

dead body was lying. Dead body was identified as that of Anjali

Goswami by PW8-Arunasish Goswami, nephew of the deceased.

PW37 conducted inquest and sent the dead body for

post-mortem examination. PW29 Dr. Debasis Sarkar

conducted autopsy on the body of Anjali and found lacerated

wounds over parietal area and left frontal area and other 4

injuries on the body of the deceased and issued ext.27

post-mortem certificate opining that the injuries were

ante-mortem in nature and were sufficient to cause death in the

ordinary course of nature. PW29 also opined that injury found

in the labia minora could be caused by forcible sexual

intercourse on a woman.

4. PW38 Ardhendu Sekhar Pahari, Inspector CID taken

up the matter and conducted further investigation. First

accused Kiriti Pal was arrested on 15.1.2009 and based on

his confessional statement, he seized Hero Honda motor cycle

black colour bearing No. WB-54D/8148 and other objects.

Based on his statement, A-4 Durga Sutradhar was also arrested

on 15.1.2009. Based on his confessional statement, second

accused Siddique Mia and third accused Mustaque Mia were

arrested on 16.1.2009. Pursuant to the statement of Siddiquie

Mia PW38 seized one TVS Fiero red colour motor cycle bearing

No. WB-54B/8245 with its key and mobile nokia handset

marked as seizure list Ext/17/3. Pursuant to statement of A-2,

A3 Mustaque Mia led to the recovery of one nokia mobile

handset, one gold finger ring with inscription of letters ‘Anjali’,

one silver made chain with one amethyst and red coral fitted 5

with it were seized under Ext.18/3. During the course of

investigation, PW38 collected the call details of the accused

and also the phone of Saraswati Pal wife of Kiriti Pal-first

accused. Investigation revealed that the murder was a result of

conspiracy between all the four accused. After completion of

investigation, charge sheet was filed against three accused, A1

to A3 under Section 302/120B/34/376(2)(g) IPC and Sections

25, 27, 35 of the Arms Act. Fourth accused Durga Sutradhar

was charged under Section 120B read with Section 302 IPC.

5. The accused were committed to the sessions court

where the charges were framed against the accused and the

appellants-accused pleaded not guilty. To bring home the guilt

of the accused, the prosecution has examined 38 witnesses and

exhibited number of documents and material objects. Upon

appreciation of evidence, the learned Sessions Court vide its

judgment dated 26.7.2011 and 29.7.2011 convicted the

appellants A1 to A3 for offences under Section 302 IPC and

sentenced them to death. Appellants A1 to A3 were also

convicted for the offence under Section 376(2)(g) IPC and each of

them were sentenced to undergo life imprisonment with fine of

Rs.5,000/- each with default clause. For conviction under 6

Section 120B-criminal conspiracy to commit the murder, all the

appellants-accused were sentenced to imprisonment for life

with fine of Rs.5,000/-each with default clause. For the

conviction under Section 25(1)(a)(b) of the Arms Act, appellants

1 to 3 were sentenced to undergo imprisonment for three years

and to pay a fine of Rs.5,000/- each with default clause.

6. For confirmation of death sentence imposed on the

appellants 1 to 3, State preferred Death Reference No.3/2011

before the Calcutta High Court. Assailing the correctness of their

conviction and sentence, accused 1 to 3 preferred criminal

appeal 471/2011 and fourth accused preferred criminal appeal

484/2011. The High Court partly allowed the appeal by setting

aside the conviction under Section 376(2)(g) IPC and for the

conviction under Section 302 IPC modified the sentence of

death to life imprisonment. High Court confirmed the

conviction of fourth accused Durga Sutradhar under Section

120B IPC and sentence of life imprisonment imposed on her. In

these appeals, the appellants-accused 1 to 4 assail the

correctness of the impugned judgment of the High Court.

Involvement of A-1 and his conviction:

7. As against Kiriti Pal (A-1) prosecution case is that he 7

hatched criminal conspiracy along with Siddique Mia (A-2),

Mustaque Mia (A-3) and Durga Sutradhar (A-4) to commit the

murder of deceased-Anjali Goswami. Prosecution case is based

on circumstantial evidence. It is well-settled that in cases

where the evidence is purely circumstantial in nature, the

circumstances from which the conclusion of guilt is sought to

be drawn must be fully established beyond any reasonable

doubt and such circumstances must be consistent and must

form a complete chain unerringly point to the guilt of the

accused and the chain of circumstances must be established by

the prosecution. Referring to several earlier decisions of this

Court in Geejaganda Somaiah vs. State of Karnataka, (2007) 9

SCC 315 para 15 it was held as follows:-

“15. Sir Alfred Wills in his admirable book Wills’ Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 8

Same principle was reiterated in Swamy Shraddananda @

Murali Manohar Mishra vs. State of Karnatka (2007) 12 SCC 288;

Gagan Kanojia And Anr. vs. State of Punjab, ( 2006) 13 SCC

516, Mohd. Mannan @ Abdul Mannan vs. State of Bihar (2011) 5

SCC 317; Inspector of Police, Tamil Nadu vs. John David, (2011)

5 SCC 509 and other cases.

8. As against Kiriti Pal, prosecution relied upon the

following incriminating circumstances:

(i) that Kiriti Pal had intimacy with Anjali Goswami;

(ii) deceased Anjali Goswami was last seen alive in the company of Kiriti Pal (A-1);

(iii) there was no satisfactory explanation by the accused as to the death of Anjali Goswami;

(iv) subsequent conduct of Kiriti Pal (A-1) and

(v) recovery at the instance of first appellant.

It is to be seen that whether the above circumstances from

which conclusion of guilt is sought to be drawn are fully

established and whether the circumstances form a complete

chain pointing to the guilt of the accused and whether the

circumstances are consistent with the hypothesis of guilt of 9

the accused.

9. After death of her husband Karuna Sindhu

Goswami, Anjali was running her husband’s line hotel in Mohd.

Bazar and later she leased out the same to PW 14- Bhagyadhar

Dhibar. After death of her daughter and son, Anjali shifted her

residence to Suri and started running a beauty parlour in a

rented premises owned by PW 10- Manash Chakraborty. It is

brought in evidence that Anjali was looking beautiful and was

interested in acting and she was mixing up with people for

getting chances in the film. Anjali purchased a house at

Nutanpally, Suri and was residing in the first floor. Ground

floor of her house was let out to couple PWs 6 and 7 Anju

Majhi and Biren Majhi.

10. A-1 Kiriti Pal himself a married man posing himself

to be a teacher in a school and bachelor developed friendship

and intimacy with Anjali. Deceased-Anjali trusted A-1 Kiriti Pal

and allowed him to pass nights at her residence at Nutanpally,

Suri. In her cross-examination, PW6 has stated that she saw

first accused Kiriti Pal in the room of Anjali several times.

During his questioning under Section 313 Cr.P.C., A-1 Kiriti Pal

had also admitted his friendship and close intimacy with Anjali. 10

PW3-Tarun Mukherjee, brother-in-law of Anjali and Anjali’s

tenant PWs 6 and 7 (Anju Majhi and Biren Majhi) had spoken

about the intimacy between Anjali and the first accused Kiriti

Pal. It is pertinent to note that PW11-Asit Dey stated that there

was no teacher named Kiriti Pal in their school at any time.

11. Smt. Chameli Banerjee (PW-9) who is the sister of

Anjali had stated that few days prior to the date of incident,

Anjali expressed her desire to stay at Katwa, residence of

PW-9. As per the evidence of PW 3, on 7.11.2008 Anjali had

dropped her mother Pratima Chatterjee at Shibloon for going to

her maternal uncle’s house and thereafter she had gone to

Katwa to her sister’s house. As per the evidence of PW9 on the

evening of 7.11.2008 Anjali received a telephonic call after

which Anjali became restless. On being asked by PW 9, Anjali

replied that she has to attend a cultural programme at Rajnagar

High School and that is why she had leave from the residence

of PW9 at dawn. PW3-Tarun Mukherjee had also corroborated

the said aspect of testimony of PW9.

12. On the fateful evening of 11.11.2008, Anjali came in

the motor cycle of A-1 Kiriti Pal from her beauty parlour. She

went to the room of her house and called PW6 Anju Majhi to 11

help her “wearing saree by holding its kuchi” and thereafter

wearing some gold ornaments, Anjali went with A-1 Kiriti Pal

on his motor cycle. PW6 Anju Majhi tenant in the ground floor

had spoken about deceased-Anjali wearing saree, leaving the

house with A-1 in his motor cycle. In her evidence, PW6

stated that she asked Anjali where she is going and that Anjali

told her that she is going to Rajnagar for attending the

function of Prosenjit and Chiranjib. When PW6 asked Anjali

about the time of her return, Anjali replied saying that she will

come back at night around 9.00-9.30 p.m. PW6 stated that

Anjali did not come back till 10.00-10.30 p.m. On hearing the

horn of motor cycle, she opened the main gate and she saw only

A-1 Kiriti Pal. PW6 further stated that first appellant Kiriti Pal

asked her as to whether key of Anjali’s room is with PW6 and

PW6 answered in negative. PW 6 asked first appellant Kiriti Pal

about Anjali and he told her that “Didi is making a gossip with

one person. He will take her later” and by saying so first

appellant Kiriti Pal left the place.

13. Anjali was last seen in the company of first

appellant is also spoken by PW10- Manas Chakraborty who

deposed that on 11.11.2008 at about 5.35 p.m. when he was 12

entering into his house from office, Anjali was found sitting on

the verandah of the first floor and PW 10 asked her to give rent.

After going inside his house, PW10 while taking tea on the

verandah, Anjali was getting down from the beauty parlour

and again PW10-Manash Chakraborty asked Anjali for rent and

Anjali showing her hand stated that ‘she was coming’. PW10

stated that he saw Anjali going as the pillion rider in the

motor cycle and that the motor cyclist was a man aged 50 years

who was of medium physique, scanty hair on his head.

14. From the evidence of PWs 6, 7 and 10, prosecution

has thus established that Anjali was last seen alive in the

company of first appellant Kiriti Pal on the evening of

11.11.2008 and that at about 10.00/10.30 p.m., first appellant

Kiriti Pal came alone. The theory of “last seen alive” comes into

play when the time gap between the way the accused and the

deceased were last seen together and the deceased was found

dead was so small, the possibility of any other person

committing the murder becomes impossible. On the next day

morning at about 9.30 a.m., body of deceased Anjali was found

in Babuibona jungle an isolated place which is 25 k.m. away

from her residence. The place where the dead body was found 13

was connected with Rajnagar - Suri Road. The time when

Anjali left with first appellant-Kiriti Pal and the time she was

found dead is so proximate which, in our view, points to the

guilt of the first appellant.

15. Having regard to the time gap being small, it is for

the first appellant to explain the circumstances how and where

and in what manner he parted company with Anjali. Thus, on

the principle that the person who is last found in the company

of another is dead or missing, the person with whom he was

last found alive has to explain the circumstances in which he

parted the company as pointed out by the trial court and the

High Court, first appellant has failed to discharge the onus and

failed to offer any explanation as to how, as to when and how

and in what manner he parted the company of Anjali, is a

strong militating circumstance against the first appellant-Kiriti

Pal. There is force in the submission of the learned counsel for

the State that the first appellant-Kiriti Pal failed to offer any

explanation, it must be held that he failed to discharge the

burden cast upon him by Section 106 of the Evidence Act. In

the case of State of U.P. vs. Satish (2005) 3 SCC 114, this

Court had stated the last seen theory comes into play where the 14

time-gap between the point of time when the accused and the

deceased were last seen alive and when the deceased is found

dead is so small that possibility of any person other than the

accused being the author of the crime becomes impossible. In

State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, in

paragraph 23, this Court has held as under:-

“It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad

218.)”

Taking into consideration the case of prosecution in its entirety

and keeping in mind the circumstances precedes and follow 15

the point of having so last seen, “the last seen theory”, in our

view, is a strong incriminating circumstance in the chain of

circumstances that would point to the guilt of the first

appellant with some certainty.

16. It has come out from the testimony of PW6 that on

the fateful evening of 11.11.2008, Anjali left her home stating

to PW6 that she is going to Rajnagar to attend the function of

Prosenjit and Chiranjib. PW11-Asit Dey is the principle of

Rajnagar High School who has deposed that no function was

scheduled to be held on 11.11.2008 in the school ground either

of Prosenjit or Chiranjib or of any other film artist. The fact that

there was no function scheduled to be held at Rajnagar High

School is yet another incriminating circumstance against the

first accused.

17. PW 38 Inspector Ardhendu Sekhar Pahari of CID

has stated that first appellant Kiriti Pal called the fourth

appellant Durga Sutradhar on 26.12.2008 at 07.47:50 hrs.

from his mobile 9232589186 and threatened her not to

disclose the facts regarding murder of Anjali to CID police.

PW7 Biren Majhi had also spoken about such threat from first

appellant threatening PW7 not to disclose anything to police 16

and asking PW7 to vacate the premises. The subsequent

conduct of first appellant threatening 4 th appellant-accused

Durga Sutradhar and PW7-Biren Majhi is a relevant

circumstance as such conduct of accused indicates his nexus

with the offence.

18. After the arrest of first three accused, and on their

statement one improvised country made single shotter pipe gun

measuring about 10” (approx) having barrel, trigger, firing pin

and iron butt was recovered. In the seizure Mahazar Exs 23/4

and 23/2, it is stated that “From the butt it seems that the

wooden portion has been detached”. From between the rocks

on the bank of Chandra-Bhaga river just beneath the Chandra

Bhaga river bridge near Saluka village under Rajnagar Police

Station, Distt. Birbhum were recovered. As per seizure list

Ext.25/2, on 28.1.2009 PW38 recovered one blood stained part

of wooden butt which seems to be a part of wooden butt of a

shotgun, measuring about 8 cm (approx) with a screw hole in

the middle; one blood stained part of a wooden butt which

seems to be a part of a wooden butt of a shotgun measuring 8

cm (approx) fixed with a iron screw in the middle measuring

about 2.5 cm (approx.) from Babuibona jungle under Karamkal 17

Mouza. PW22 Khalil and PW38 Ardhendu Sekhar Pahari,

investigating officer have spoken about the recovery. PW29

Dr. D. Sarkar who conducted the post-mortem examination

over the dead body of Anjali Goswami stated that injury No.6

could have been caused by a hard blunt substance and it could

also be caused by striking with the butt of a short firearm.

The recovery at the instance of first appellant-accused is yet

another incriminating circumstance in the chain which leads to

the conclusion pointing to the guilt of the first appellant.

19. Wooden butts recovered on 28.1.2009 were sent to the

Forensic Science Laboratory. On the seized wooden butts,

blood was detected; but the same was insufficient for

serological test (Ext.56). Detection of blood on the seized

wooden butts cannot be discarded on the ground that it was

insufficient for serological test. There is no legal proposition,

the detection of blood is unworthy of acceptance merely

because it was insufficient for serological test and the case of the

prosecution cannot be doubted on that score.

20. Statement of A-4 Durga Sutradhar recorded under

Section 164 Cr.P.C. is yet another incriminating circumstance

against A-1 Kiriti Pal. A-4 Durga Sutradhar has stated that A-1 18

Kiriti Pal called her over telephone and threatened her not to

disclose anything to police is a strong militating circumstance

against A-1 Kiriti Pal pointing to his guilt.

21. Learned counsel for the first appellant contended

that no motive is attributed to the accused and merely because

the first appellant had developed friendship and intimacy with

Anjali Goswami, in the absence of any motive attributed, the

courts below erred in convicting the first appellant. It is true

that motive is an important factor in cases where the

conviction is based on circumstantial evidence but that does

not mean in all cases of circumstantial evidence if prosecution

is unable to prove the motive satisfactorily, the prosecution

must fail. In this case, of course, prosecution has not adduced

evidence as to what was the motive for committing murder of

Anjali. But it is a matter of common knowledge that murders

have been committed without any pro-eminent motive. It is well

established that the mere fact that the prosecution has failed to

translate the mental disposition of the accused into evidence,

that does not mean that no such mental condition existed in

the mind of the accused. Same view was reiterated in Vivek

Kalra vs. State of Rajasthan, (2014) 12 SCC 439, it was observed 19

thus:-

“17…where prosecution relies on circumstantial evidence only, motive is a relevant fact and can be taken into consideration under Section 8 of the Indian Evidence Act, 1872 but where the chain of other circumstances establishes beyond reasonable doubt that it is the accused and the accused alone who has committed the offence, and this is one such case, the Court cannot hold that in the absence of motive of the accused being established by the prosecution, the accused cannot be held guilty of the offence. In Ujjagar Singh vs. State of Punjab (2007) 13 SCC 90, this Court observed: (SCC P.99 para 17)

“17…..It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliché) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.””

22. The circumstances relied upon by the prosecution

against the first appellant Kiriti Pal are well established by the

prosecution. Upon appreciation of evidence, the trial court and

the High Court rightly held that the incriminating

circumstances against the first appellant Kiriti Pal are firmly

established and form a complete chain pointing to the guilt of

the accused and are consistent with the hypothesis of the guilt

of the first appellant. We find no substantial ground to

interfere with the conviction of the first appellant Kiriti Pal under

Section 302 IPC. Insofar as the charge of rape is concerned, 20

we agree with the view of the High Court that there is no

positive evidence for sustaining the conviction under Section

376(2)(g) IPC. The conviction of the first appellant Kiriti Pal

under Section 25(i)(a) (b) of Arms Act and the sentence imposed

on him is confirmed.

Involvement of A-2, A-3 and A-4 and their conviction.

23. For conviction of appellants A-2, A-3 and A-4, courts

below relied upon two circumstances:- (i) that soon before the

time of incident and after the incident all the accused were in

contact with each other on the phone calls and thus had

conspired in perpetrating the crime; (ii) recovery of

incriminating articles from appellants 2 and 3.

24. To arrive at a conclusion that the accused-appellants

have conspired together to commit the offence, courts below

mainly relied upon the phone calls details. Ext.30 is the call

record of mobile No.9232589186 of Kiriti Pal which shows that

Kiriti Pal made 41 calls to A4 Durga Sutradhar from 7.12.2008

to 15.1.2009. Ext.31 is the call record of Siddique Mia. Ext. 31

indicates that 144 calls were made from the mobile phone of

Mustaque Mia to Siddique Mia. Some of the calls were incoming

calls from the mobile of Siddique Mia to Mustaque Mia. Ext.31 21

indicates that there was telephonic conversation between the

accused Musatque Mia and accused Siddique Mia. Ext.32

shows that Kiriti Pal gave 7 calls to Anjali’s mobile from

11.7.2008 to 9.11.2008.

Ext.34 shows Saraswati gave 7 calls to Siddique Mia during the

period from 11.11.2008 to 14.11.2008. Documentary evidence

indicates that Siddique Mia made 13 calls to Saraswati during

the period from 10.11.2008 to 27.11.2008. Ext.35 shows that

Saraswati gave 38 calls to Durga Sutradhar during the period

from 11.11.2008 to 20.11.2008. Documentary evidence also

indicates that all the accused were in contact with one another

over the phone. Scrutiny of call details revealed that on

11.11.2008 Saraswati gave 2 calls to Anjali. One call was at

12.55 hours and another call was at 12.58 hours and 4 calls

to Siddique Mia, first call was at 9.55 hours and the last call

was at 17.20 hrs. Documentary evidence further indicates that

on 11.11.2008 Siddique Mia had a telephonic conversation with

Mustaque Mia around 19.19 hours and Siddique Mia had also

telephonic conversation with Saraswati and the first call was

around 9.55 hours and the last call was at 21.42 hours.

Saraswati had a telephonic conversation too with Durga 22

Sutradhar on that date and there were six incoming and

outgoing calls. The first call was around 10.57 hours and the

last call was at 17.57 hours.

25. Apart from telephonic conversation, no other evidence

was adduced by the prosecution to bring home that first

accused hatched a conspiracy. There is no evidence to prove

as to how the appellants 2 and 3 ( Siddique Mia and Mustaque

Mia) had gone to the place of occurrence and what was their

subsequent conduct. Their presence near the scene of

occurrence could have been established by the prosecution

either by examining some witnesses near and around the place

of occurrence or by proving the location of the calls so as to

establish the proximity of the accused with the scene of

occurrence. Apart from the extract of the call records, no other

evidence was adduced by the prosecution to establish the

conspiracy.

26. Apart from telephonic conversation, prosecution also

relied upon recoveries made pursuant to the confessional

statement of the appellants 2 and 3 (Siddique Mia and

Mustaque Mia). Pursuant to the statement of Siddique Mia one

TVS Fiero red colour motor cycle bearing No. WB-54B/8245 23

with its key and nokia mobile handset (phone No.9932345230)

were seized under Ext.17/3. Pursuant to the statement of

Mustaque Mia nokia mobile handset having connection No.

9932705533, one gold finger ring in the shape of a flower with

inscription of letter ‘Anjali’, and silver made chain with one

Amethist and red coral fitted with it were seized under Ext.

18/3. Recoveries made and seizure list were sought to be

proved by examination of PW17-Uttam Mondal. PW17 had

deposed that he knew deceased Anjali. PW17 was then

employed in the hotel run by Bhagyadhar Dhibar which was

owned by Anjali. In his evidence PW17 stated that in January

2009, two or three gentlemen came to his hotel and took his

signature and that he did not know why his signatures were

being taken. Though PW17 identified his signatures in the

seizure list, evidence of PW17 no way establishes recoveries

being made at the instance of the accused 2 and 3. Evidence of

PW17 is far from convincing and is not of much assistance to

the prosecution as he has not clearly spoken about the

recoveries and the seizure list. The gold ring and silver made

chain recovered were also not shown to the other witnesses for

being identified as that of Anjali. No other evidence was 24

adduced by the prosecution to substantiate the recovery of

objects and the seizure list.

27. Sofar as the complicity of fourth accused-Durga

Sutradhar, the prosecution mainly relied upon the call record

and judicial confession of Durga recorded by Judicial

Magistrate, 2nd Court, Suri, Birbhum (Ext.26). Prosecution

relied upon the recovery a notebook seized from the

possession of appellant Durga Sutradhar where she has

written Kiriti’s phone number clandestinely coded as ‘Dadu’.

Ext. 30 call records of Kiriti Pal phone also revealed that there

were number of calls from Kiriti Pal to fourth appellant. Like

in the case of appellants No. 2 and 3 (Siddique Mia and

Mustaque Mia) apart from telephone calls, no other evidence

was adduced by the prosecution to bring home the guilt of

fourth accused-Durga Sutradhar. Insofar as the judicial

confessional statement recorded under Section 164 Cr.P.C., it

is not an inculpatory statement; but it is only to the effect of

showing the subsequent conduct of A-1 Kiriti Pal in

threatening Durga Sutradhar–fourth appellant not to disclose

anything to the police. In our view, neither the telephone calls

between the first appellant-Kiriti Pal and Durga 25

Sutradhar-fourth appellant nor her confessional statement by

themselves would be sufficient to establish the guilt of fourth

appellant.

28. In a case based on circumstantial evidence, the court

must adopt a very conscious approach and should record

conviction only if all the links in the chain are complete pointing

to the guilt of the accused. All the links forming complete

chain must be firmly established by the prosecution. Each link

taken separately may just suggest suspicion but such

suspicion itself may not take the place of proof and not

sufficient to convict the accused. All the circumstances must

be firmly established and must be consistent only with the

hypothesis of the guilt. But that is not to say that the

prosecution must meet each and every hypothesis put forward

by the accused however farfetched it may be. As discussed

earlier, the telephonic calls and the recovery may raise

suspicion against the accused but mere suspicion itself cannot

take the place of proof. In our view, evidence adduced by the

prosecution against appellants 2 and 3 (Siddique Mia and

Mustaque Mia) do not form a complete chain connecting the

accused with the crime and the conviction of the appellants 26

under Section 302 IPC read with Section 120B IPC cannot be

sustained and deserves to be set aside. Likewise, conviction of

fourth appellant-Durga Sutradhar under Section 120B cannot

be sustained and is liable to be set aside.

29. In the result, criminal appeal No.50/2014 filed by

accused Kiriti Pal is dismissed and the conviction and sentence

under Section 302 IPC and 120B IPC and under Section 25(i)(a)

(b) of the Arms Act imposed on the first appellant-Kiriti Pal by

the High Court is confirmed. Criminal Appeal No.1841/2012

filed by accused Siddique Mia and Mustaque Mia and criminal

appeal No.1725/2014 filed by Durga Sutradhar are allowed.

Appellants 2 to 4 (Siddique Mia, Mustaq Mia and Durga

Sutradhar) are acquitted of all the offences and they are directed

to be set at liberty forthwith if not required in any other case.

………………………..J. (T.S. Thakur)

………………………..J. (R. Banumathi)

New Delhi;

April 16, 2015 27

ITEM No. 1A Court No. 2 SECTION (For Judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 50 of 2014

KIRTI PAL Appellant(s)

VERSUS

STATE OF WEST BENGAL Respondent(s)

with

Crl. A No. 1725 of 2014, 1841 of 2012

Date : 16.04.2015 These appeals were called on for judgment today.

For Appellant(s) Ms. E.R.Sumathy, Adv.

Mr.Sunil Kuamr Jain, Adv.

For Respondent(s) Mr. Anip Sachthey, Adv.

Mr. Chanchal Kumar Ganguly, Adv.

UPON hearing the counsel the Court made the following O R D E R

Hon'ble Mrs. Justice R.Banumathi pronounced Judgment of the Bench comprising Hon'ble Mr. Justice T.S.Thakur and Hon'ble Mrs. Justice R.Banumathi.

In the result, criminal appeal No.50/2014 filed by accused Kiriti Pal is dismissed and the conviction and sentence under Section 302 IPC and 120B IPC and under Section 25(i)(a)(b) of the Arms Act imposed on the first appellant-Kiriti Pal by the High Court is confirmed. Criminal Appeal No.1841/2012 filed by accused Siddique Mia and 28

Mustaque Mia and criminal appeal No.1725/2014 filed by Durga Sutradhar are allowed. Appellants 2 to 4 (Siddique Mia, Mustaq Mia and Durga Sutradhar) are acquitted of all the offences and they are directed to be set at liberty forthwith if not required in any other case.

(Shashi Sareen) (Veena Khera) Court Master Court Master

(Signed reportable judgment is placed on the file)