Mousam Singha Roy & Ors vs State Of West Bengal

were tried in S.T. Case No.V(4) of 1999 by the Additional

District and Sessions Judge for offences punishable under

Section 120-B, 302 read with Section 34 IPC and Section 201

read with Section 34 IPC. Learned Sessions Judge as per his

judgment dated 29.3.2000 while acquitting Deepak Rajak

convicted the other accused under Section 302 read with

Section 34 IPC, and sentenced them to undergo imprisonment

for life with a fine of Rs.2,000; in default to undergo further RI

for one year. He did not award separate sentences for offences

punishable under Section 120-B and 201 read with 34 though

he found them guilty of the said offences also. The appellants

herein preferred appeals before the High Court at Calcutta

while State preferred a separate appeal against the acquittal of

Deepak Rajak. A Division Bench of the High Court as per its

judgment dated 24.5.2001 dismissed the appeal of the

appellants while it allowed the State appeal, and convicted

Deepak Rajak also, for offences for which these appellants were

sentenced.

Against the said judgment of the High Court the

appellants have preferred the abovenoted criminal appeals.

Deepak Rajak who was convicted by the judgment of the High

Court did prefer an SLP before this Court but since he did not

surrender, as required under the Supreme Court Rules, his

appeals came to be dismissed for default. Therefore it is only

accused Nos.1, 2, 4 and 5 who are before us in these appeals.

Brief facts necessary for disposal of these appeals are as

follow :

One of the deceased Pritam Chakraborty who was aged

about 16-17 years was a student of Vivekananda Institution,

Howrah. He was staying with his widowed mother Purnima

Chakraborty (PW-6) at Mouza 5/2/1, Katapukur 3rd bylane,

Kadamtala, Howrah. The second deceased Rudra Parui who

was of the same age as Pritam, was his classmate and a good

friend. He was residing with his father Uttam Kumar Parui

(PW-9) at Mouza 62, Tantipara Lane, P.S. Shibpur, Distt.

Howrah. Apart from going to school together, they also used to

go for tutorial classes together in the evening. It is the

prosecution case that deceased Pritam was having a love affair

with one Reshma Gupta. It is stated that A-1 Mousam Singha

Roy was also in love with said Reshma. Because of this twist of

love triangle, the prosecution alleges that said accused Mousam

was jealous or angry with deceased Pritam. It is because of this

on 1.12.1998 appellant Mousam allegedly made a telephone

call to Pritam at the residence of latter's maternal uncle

Sibananda Bhattacharjee (PW-1) with whom Pritam and his

mother PW-6 were residing. The telephone call in question was

received by PW-1 at about 8 a.m. and the caller identified

himself as Mousam, a friend of Pritam who desired to speak to

Pritam. Thereupon PW-1 called Pritam and handed over the

phone to him. During the conversation on the telephone, PW-1

found Pritam perturbed and shaky therefore after the

conversation PW-1 asked Pritam what the matter was. Though

Pritam did not say anything in the beginning, on being rebuked

by PW-1, he replied that Mousam had asked him to come to

Howrah Bridge later in the night for which PW-1 told him not

to go there as desired by Mousam. Pritam then replied that

since his friend Rudra (the other deceased) was going to

accompany him there need be no apprehension. It is the further

case of prosecution that in the evening Pritam did not come

back to his house from the tutorial class even by about 8.45

p.m. which was the normal time for him to return home after

the tutorial class so his mother PW-6 told PW-1 about the non-

arrival of Pritam. PW-1 comforted his sister by saying that

Pritam might have gone for xeroxing some of his papers. PW-1

waited till about 9.30 p.m., then went in search of Pritam to the

tutorial school and on the way he met the father of Rudra,

Uttam Kumar Parui (PW-9), and some others. They told PW-1

that even Rudra had not returned from coaching class and they

were searching for him. So all of them together went to the

coaching class where they were told by the Principal of the

Coaching class, Mrinal Mukherjee (PW-14) that the boys had

already left the class. Thereafter at about 11 p.m. PW-1 with

PW-9 and other local people went to the Bantra Police Station

and gave a verbal information about the missing of the boys to

the Police Officer there. It is further stated that PWs.1, 9 and

others went to the Howrah Station and searched for them on

Howrah Bridge and even told the personnel of Government

Railway Police Station (G.R.P.S.) about the missing boys and

also gave them the description of the boys. PW-1, PW-9 and

others continued the search for the boys even on 2.12.1998

morning and being unsuccessful in their efforts, went to Bantra

Police Station and lodged a missing Diary. Thereafter, they

went to their house. It is the case of the prosecution that on

2.12.1998 at about 10-11 a.m. Debasish Sarkar (PW-2) and

Arun Polley (PW-3) came to the house of PW-9 and informed

him that they had seen Pritam and Rudra in the company of

accused near the Howrah Bridge on the night of 1.12.1998.

After listening to PWs.2 and 3, PW-9 with his relatives went to

PW-1's house and told him about the information he got from

PWs.2 and 3. According to PW-1, after getting the information

about PWs.2 and 3, he along with PW-9 and others searched for

the boys and unable to trace them he went to Bantra P.S. and

again reminded them of the missing boys but he was told by the

Police since missing diary is recorded only in the morning, he

will have to wait for some more time.

Since even till 3.12.1998 morning no information was

received about the missing boys PW-1 went again to Bantra

P.S. and lodged a written complaint which was signed by him

and marked as Ex.1. In the said complaint names of accused

persons were mentioned. It is the prosecution case that on

4.12.1998 the dead body of Pritam was traced near Hooghly

Dock which was identified by PW-1 and on 7.12.1998 the body

of Rudra was found which was identified by PW-9. In the

course of postmortem the doctor found certain ante-mortem

injuries on the body of Pritam, he noted that injuries suffered by

said deceased were due to manual strangulation and

smothering, He also recorded that Pritam's death was due to

pre-mortem strangulation. On the body of Rudra the doctor

found certain bruises and contusions which were ante-mortem

in nature. The doctor opined that his death was due to the effect

of asphyxia as a result of drowning which was ante-mortem and

homicidal in nature.

During the course of investigation the accused persons

were arrested and the Police recovered a letter allegedly written

by A-1 from the house of appellant Bikash Jaiswal @ Vikky

(A-5). Police also recovered an exercise book (Khata) from

which pages were torn for the purpose of writing the letter

which was found in the house of Mousam (A-1). During the

course of investigation the Police came to know that on

1.12.1998 when PWs.2 and 3 were standing near the power

house on the road leading to Howrah Bridge these witnesses

had noticed the appellants and the deceased going towards the

Howrah Bridge. It is during the course of this investigation on

5.12.1998, one Rajesh Tiwari PW-13 appeared in the Police

Station and told the Investigating Officer that on 1.12.1998 at

about 8.50 p.m. when he was returning from Bara Bazar,

Calcutta to his house after making certain purchases, he had

seen the accused persons engaged in a quarrel with 2 boys on

the footpath of Howrah Bridge. On further investigation it was

found on 1.12.1998 one Dibyendu Shee PW-15 while coming

back from a game of cricket had found Mousam (A-1) and a tall

boy walking ahead of him and he could overhear a conversation

in which Mousam allegedly told the tall boy "together it could

happen on that day". PW-15 further says that out of curiosity he

asked the tall boy what would happen on that day to which the

tall boy replied that the matter related to his friends Pritam and

Mousam. At that point of time this tall boy also made a gesture

of moving his right hand horizontally indicating the nature of

act. On further investigation the Police came to know that

PWs.23 and 24 who were Duty Constables on the Howrah

Bridge had come to know from some passersby that 2 persons;

either a boy and a girl or 2 boys had jumped into the Ganges

from the bridge. This was at about 9 or 9.05 p.m. When these

Constables proceeded to the place of incident they noticed

about 200-300 persons there therefore PW-23 sent PW-25 to

the Police Station to inform the duty Officer and he started

clearing the crowd. This witness also witnessed a cycle near

Post No.12 of Howrah Bridge and therefore he took possession

of the same. This witness also says when he was there, 2

Constables from Post No.12 visited the place of incident. It is

based on these facts the appellants were charged and found

guilty of the offences, as stated above.

Mr. P.K. Ghosh, learned senior counsel appearing for the

appellants, submitted that in the absence of any direct evidence

the prosecution had to rely on circumstantial evidence to

establish its case but in this process it has failed to establish

beyond reasonable doubt all the necessary links found in the

chain of circumstances. Therefore, the benefit of that failure

ought to have gone to the appellants. He submitted that the

evidences of so called witnesses who have spoken about seeing

the deceased in the company of accused persons are so artificial

that it is impossible for any prudent person to safely base a

conviction on the said evidence. He further submitted that even

the presence of these witnesses at the place mentioned by them

at the relevant time apart from being a chance circumstance, it

was also highly improbable. He submitted that the non-

mentioning of the names of PWs.2 and 3 in the FIR even

though by then PW-1 had come to know of the seeing of the

accused and the deceased by PWs.2 and 3 on 1.12.1998 throws

substantial doubt as to their presence at the sweetmeat stall.

Learned counsel also argued the non-mentioning of the receipt

of telephone call by PW-1 on the night of 1.12.1998 to the

Police or anybody else also creates a doubt as to the receipt of

the said call. Learned counsel very seriously challenged the

seizure of the letter as well as the exercise book, especially on

the ground that the witnesses to the recovery Panchnama had

not supported the recoveries. He also submitted that the

judgments of the courts below are based purely on suspicion

and are influenced by the tragic murders of 2 youngsters and

are not based on legal evidence.

Mr. Tapash Ray, learned senior counsel appearing for the

State submitted both the courts below have considered the

attack by the defence very minutely and have given good

reasons for rejecting the said attack. He submitted though there

are no eye witnesses to the actual assault on the deceased or

throwing their bodies into the river from the bridge, the chain of

circumstances relied upon by the prosecution starting from the

morning of 1.12.1998 up to the arrest and recoveries made by

the investigating agency clearly shows that it is the accused and

the accused alone who are responsible for this dastardly crime.

He submitted the factum of motive for A-1 to do away with

Pritam is evident from the said accused's conduct as spoken to

by PW-6, mother of deceased Pritam which is supported by her

neighbour PW-7. He also pointed out that the contents of the

letter recovered from the house of Vikky (A-5) showed the

diabolocal plan of Mousam (A-1) to eliminate Pritam with a

view to prevent him from being a thorn in his lovelife which

fact is further supported by the evidence of PW-15 who

overheard the conversation of Mousam with his tall friend who

was subsequently identified as Vikky (A-5). He also argued that

none of the witnesses who have supported the prosecution had

any motive whatsoever to falsely implicate these accused

persons. He also pointed out the two courts below after

considering the material on record having come to the

concurrent finding of guilt of the appellants there should be no

reason why this Court should interfere with such a finding of

the courts below.

In the couse of his arguments, learned counsel for the

appellants has also submitted that the courts below were more

influenced by the poignant nature of the prosecution case than

the legal nature of the evidence led by the prosecution. It is in

this context, he relied on a judgment of this Court in the case of

Hanumant Govind Nargundkar & Anr. v. State of M.P. [AIR

1952 SC 343] wherein this Court while dealing with cases of

circumstantial evidence held :

"In dealing with circumstantial evidence the

rules specially applicable to such evidence

must be borne in mind. In such cases there is

always the danger that conjecture or

suspicion may take the place of legal proof.

In cases where the 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, and all the facts so established

should be consistent only with the

hypothesis of the guilt of the accused.

Again, the circumstances should be of a

conclusive nature and tendency and they

should be such as to exclude every

hypothesis but the one proposed to be

proved. In other words, there must be a

chain of evidence so far complete as not to

leave any reasonable ground for a

conclusion consistent with the innocence of

the accused and it must be such as to show

that within all human probability the act

must have been done by the accused."

Apropos what was observed by this Court in the case of

Hanumant Govind (supra), it will be useful to note the warning

addressed by Baron Alderson to the jury in Reg. V. Hodge

[1838 2 Lewin 227] which is also quoted with approval by this

Court in the case of Hanumant Govind (supra) :

"The mind was apt to take a pleasure in

adapting circumstances to one another, and

even in straining them a little, if need be, to

force them to form parts of one connected

whole; and the more ingenious the mind of

the individual, the more likely was it,

considering such matters, to overreach and

mislead itself, to supply some little link that

is wanting, to take for granted some fact

consistent with its previous theories and

necessary to render them complete."

Bearing in mind the above caution delivered by this

Court in appreciating circumstantial evidence as laid down in

Hanumant's case (supra), and the cautious words of Baron

Alderson in regard to the possibility of our mind getting swayed

by the tragic facts of the case and our assessment of evidence

being influenced by our preconceived notions, we will now

analyse the prosecution case.

The prosecution has relied on the following

circumstances to establish its case against the appellants :

(i) Appellant Mousam had made a telephone call on

1.12.1998 to deceased Pritam at the house of PW-1 and

had asked the deceased to meet him at the Howrah

Bridge later in the night at about 9 p.m. as spoken by

PW-1;

(ii) Appellant Mousam was angry with Pritam because he

was also friendly with Reshma Gupta which was

considered as a hurdle by the said accused in the way of

his love affair with said Reshma, as spoken to by PWs.1,

6 and 7.

(iii) PW-15 had overheard on 1.12.1998 the plan of A-1 and

A-5 to eliminate Pritam;

(iv) Deceased and the accused persons were seen together at

the power-house in the late evening of 1.12.1998 by

PWs.2 and 3;

(v) Accused were seen having an altercation with 2 unknown

boys at about 9 p.m. on the Howrah Bridge on 1.12.1998

by PW-13;

(vi) PWs-22 and 25 Constables came to know that either 2

boys or a boy and a girl had jumped from the Howrah

Bridge into the river at about 9 p.m. on 1.12.1998 and a

cycle belonging to deceased Rudra was recovered near

about that place;

(vii) The deceased were missing since 1.12.1998 and their

bodies were recovered on 4th and 7th December, 1998 and

the medical reports showed that they had met with

homicidal death;

(viii) A letter allegedly written by A-1 Mousam was recovered

from the house of A-5 contents of which showed the

intention of A-1 to eliminate deceased Pritam;

(ix) The above letter was written in pages torn from an

exercise book recovered from the house of A-1.

To prove that deceased Pritam and Mousam A-1 were in

love with the same girl Reshma because of which A-1

entertained an ill-will against Pritam, the prosecution relies on

the evidence of PWs.1, 6 and 7. It also strongly relies on letter

allegedly written by A-1 to A-5. So far as PW-1's evidence is

concerned he merely says that he had come to know that there

was a triangular affair between Pritam, Reshma and Mousam.

The source of this information is not mentioned by him,

therefore we do not place much importance on this evidence of

PW-1 in regard to the relationship between Pritam, Reshma and

Mousam. But PW-6 in her evidence states that about a week

prior to 1.12.1998, she had seen a boy cycling in front of her

house. When asked Pritam had told her that the boy's name was

Mousam and he did not tolerate Pritam's friendship with

Reshma for which PW-6 had advised her son not to mix with

Reshma. Her evidence finds corroboration from the evidence of

PW-7 who states that at the instance of PW-6 he did approach

the parents of Reshma in regard to her involvement with

accused Mousam. This part of their evidence would indicate

that there was an ongoing affair between Reshma on one side

and Pritam and Mousam on the other, due to which the

relationship between Pritam and Mousam, at least from the side

of Mousam was not cordial. To this extent, the prosecution case

can be accepted.

We will now proceed to examine the other evidence led

by the prosecution keeping in mind that the prosecution has

established a not so cordial relationship between Pritam and

Mousam but the question then is : would this in any manner

indicate that Mousam entertained an intention to eliminate

Pritam ? In this regard, the prosecution as a link in its chain of

circumstances has tried to establish this intention of Mousam by

referring to a telephone call allegedly made by him to PW-1's

house on 1.12.1998 at about 8 a.m. PW-1 states because of this

telephone call he came to know that Pritam was asked by

Mousam to come to Howrah Bridge at about 9 p.m. and Pritam

had become nervous after receiving this call. Seeing this PW-1

advised Pritam not to go to Howrah Bridge but Pritam told him

that since he was going in the company of Rudra (the other

deceased) there need be no apprehension. This part of the

evidence if proved would establish that A-1 had called Pritam

to meet him at the Howrah Bridge which circumstance will be a

relevant circumstance in the chain of prosecution case.

Therefore, we will now examine whether this part of PW-1's

evidence can be accepted as has been done by the two courts

below. In the night of 1.12.1998, PW-1 came to know at about

8.45 p.m. from his sister PW-6 that Pritam had not come home

from the tutorial class as was the usual practice. At this point of

time this witness instead of telling his sister that Pritam had

gone to meet A-1 at Howrah Bridge, told her that he may be

late because Pritam might have gone to get some papers

xeroxed. No explanation is given by this witness while in

witness box why he gave such incorrect excuse to his sister. It

is then seen that this witness after waiting for some more time,

went in search of Pritam. On the way he met PW-9 father of

Rudra with some local people. PW-9 told PW-1 even his son

Rudra who accompanied Pritam had not come back therefore

both of them went to Bantra Police Station and orally told the

Police about the missing boys but this information was not

reduced to writing by the Police. Here it is to be noticed that

PW-1 did not tell the Police about the telephone call received

by his nephew earlier in the day nor did he tell either PW-9 or

the Police that Pritam and Rudra could be in the company of A-

1 on the Howrah Bridge.

If we can accept the evidence of PW-1 that he in fact

received a telephone call on the morning of 1.12.1998 from

Mousam, A-1, wanting to talk to deceased Pritam and after the

telephonic conversation Pritam had told PW-1 that he was

going to meet A-1 and his friends on the Howrah Bridge at 9

p.m. in the company of Rudra then this would be a material

piece of evidence connecting the accused to the crime. Though

the courts below have accepted this part of the evidence of PW-

1 we find it difficult to accept it, primarily because PW-1 did

not tell anybody about the receipt of this telephone call until he

lodged the complaint on 3.12.1998. In this background, if we

peruse the evidence of this witness then it is seen on the night

of 1.12.1998 when he went out in search of Pritam he met PW-

9 father of deceased Rudra who told him that his son was also

missing and together they go to the tutorial school then to

Howrah Station, Howrah Bridge, they meet the personnel of the

GRPS, they thereafter lodged an oral complaint with the Police

about the missing boys but at no point of time PW-1 mentioned

the receipt of the telephone call to anybody. This looks strange

to us because if actually PW-1 had the knowledge that the

deceased were going to meet the accused on the Howrah Bridge

then the first thing any reasonable man would have done is to

share this information with PW-9 or the Police and search for

the known accused instead of going on a wild-goose chase.

Absence to do so without any proper explanation makes the

statement of PW-1 as to the receipt of the telephone call

suspect. Then on 2.12.1998 when again PW-1 and PW-9 in the

company of locals went to search the deceased at various places

and went to Bantra Police Station to lodge a Police Diary of the

missing persons even then PW-1 does not mention about the

receipt of telephone call. For the first time we notice PW-1

comes out with this case of telephone call on 3.12.1998 when

he lodged a complaint Ex. P-1 with the Police as to the missing

of the deceased. As noted above, there is absolutely no

explanation why he did not inform anyone between 1.12.1998

and 3.12.1998 about the receipt of telephone call. This omission

coupled with the fact that the investigating agency has not

made any efforts to verify whether any such telephone call was

received by PW-1 on his telephone on 1.12.1998 makes us

think that this part of PW-1's evidence cannot be relied upon to

link the other evidence led by the prosecution to prove its case

against the accused persons. Apart from the receipt of telephone

call in the evidence of PW-1, nothing material connecting the

accused to the murder is found. He of course says that the

deceased were missing from the night of 1.12.1998 and he

joined PW-9 and others in search of them and PW-9 told him

that PWs.2 and 3 had seen the deceased in the company of the

accused but this fact he did not mention in his complaint Ex. P-

1. Even then the courts below have chosen to accept the

evidence of PW-1 in regard to the receipt of telephone call on

its face value without seeking even minimal corroboration.

Taking into consideration the fact that PW-1 had repeated

opportunities of disclosing the receipt of telephone call to

others, as stated above, his failure to do so makes this part of

his evidence unacceptable to us in spite of the fact that the same

has been accepted by two courts below because findings of the

courts below in this regard are contrary to all probabilities and

reasonableness.

Prosecution has relied on the evidence of PW-9 father of

Rudra to show that his son was missing since the night of

1.12.1998 and he was told by PWs.2 and 3 that they had seen

his son in the company of Pritam and other accused persons on

the Howrah Bridge on 1.12.1998 at about 9 p.m. and that he in

the company of PW-1 and other locals had searched these 2

missing boys but did not succeed in that quest. He also supports

PW-1 to the extent that they went to Bantra Police Station to

lodge a missing persons report for the first time orally and for

the second time in writing and that the dead body of his son was

recovered on 7.12.1998 and he also took possession of the cycle

belonging to his son from the Port Police. While discussing the

evidence of PW-1 we have noticed that the fact that PWs.2 and

3 had told PW-9 about the missing persons is not mentioned in

the FIR and PW-1 had not told him about the receipt of

telephone call on 1.12.1998 in the morning.

This witness states that on 2.12.1998 when he came to

know from PWs.2 and 3 about the missing boys being in the

company of the accused persons, he went to the house of PW-1

and told him what was told to him by PWs.2 and 3. He also

states that he gave the addresses of A-2 to A-5 to PW-1 and

further states that together they searched for these accused

persons but could not trace them. PW-1 does not corroborate

this part of the statement as to the mentioning of the names of

the accused persons as also searching for them on 2.12.1998 in

the company of PW-1. We further notice this part of PW-9's

evidence is not even supported by PW-43, the investigating

officer, who in his evidence states that PW-9 did not tell him at

the time of recording his statement that he went to the house of

the accused persons and they were not traceable. Thus, there is

an attempt on the part of PW-9 to improve his evidence given

in the court. Be that as it may, we do not think the evidence of

PW-9 takes the prosecution case any further than proving the

fact that his son along with Pritam went missing on 1.12.1998

and their search for them proved futile on 1st and 2nd December,

1998 and that PWs.2 and 3 told him that they had seen the

missing boys in the company of the accused on 1.12.1998.

Suffice it to state here that this evidence of PW-9 could, at the

most, corroborate the prosecution case in regard to the links in

the circumstantial chain provided such links have been

independently established.

Prosecution to establish its case connected with motive

has relied on the evidence of PW-15 Dibyendu Shee. His

evidence in our opinion makes a very interesting reading

though devoid of any merit. He claims to be a cricketer playing

in Tikiapara Railway quarters' ground. He is also a student of

Vivekananda Institution where the deceased were studying. On

1.12.1998 afternoon after the game he was going out of the

cricket ground on his cycle when he found accused Mousam

whom he knew, going ahead of him in the company of a tall

boy whose identity obviously this witness did not know at that

time. This witness then says that he overheard a conversation

between accused Mousam and the tall boy to the effect

"together it could happen on that day". So this witness got

curious and asked the tall boy what will happen on that day, to

which the tall boy is supposed to have answered : "Your friend

Pritam and Mousam are related to this matter". On further

questioning by this witness the tall boy replied by showing his

right hand horizontally (across). This tall boy was identified by

this witness in jail for the first time. This piece of evidence has

been construed by the two courts below as a piece of evidence

for establishing the intention of Mousam to eliminate the

deceased Pritam in the company of A-5. A reading of this

evidence to our mind shows this evidence is ex facie artificial.

This witness though he knew A-1 did not know Vikky till he

identified him in jail on 6.12.1998 for the first time. He was

examined by the Police for the first time on 6.12.1998. There is

nothing on record to show how the I.O. came to know that this

witness had seen accused Mousam and Vikky together on

1.12.1998. In such circumstances bearing in mind the fact that

if really the 2 accused persons were discussing a plan to

eliminate Pritam it is impossible to believe that the accused

would share this information with a stranger in the manner as

stated by this witness so as to provide some evidence against

their involvement in the crime. But the courts below proceeded

to accept the evidence of this witness and rejected the argument

of the defence that this evidence is incongruous, unusual and

contrary to the course of human conduct solely on the ground

that he had identified A-5 in a test identification parade,

relevance of which for the purpose of rejecting the defence

challenge to PW-15's evidence we fail to understand. At any

rate we agree with the argument addressed on behalf of the

appellants that the evidence of PW-15 is highly artificial and

opposed to normal human conduct and unworthy of acceptance

by any standard.

We will now consider the prosecution case in regard to

the accused and the deceased being seen together on the night

of 1.12.1998. For this purpose the prosecution has firstly relied

upon the evidence of PWs.2 and 3. The evidence of these two

witnesses will be considered by us together. They stated that

both of them resided in Thakur Ramkrishna Lane, Howrah.

PWs-2 and 3 say that they knew the accused persons and the

deceased. They knew deceased Rudra because he was a local

boy of their locality. PW-1 states that he knew Pritam because

he used to visit Rudra, he states that he knew the accused

persons because they use to play cricket in Dumurjola ground

which place this witness used to visit to watch cricket matches,

though they were not of the same locality as that of this witness.

Both these witnesses PWs.2 and 3 state that on 1.12.1998 at

about 8.30 p.m. they were purchasing sweetmeat at a stall

opposite the power-house at Kadamtala, at that time PW-2 saw

accused persons going towards Howrah Bridge with Rudra and

he asked Rudra where he was going in the night, to which

Rudra supposedly replied that he was going with his friend

towards Howrah. PW-2 also says that he identified the accused

persons because he had seen them play cricket. In his evidence

he further states on 2.12.1998 he informed PW-9 and some

other people of the locality that on 1.12.1998 at 8.30 p.m. he

had seen the deceased, the accused and some others proceeding

towards Howrah. This witness was cross examined at length

suggesting among other things that they could not have been

present at that place at that time. Defence also challenged the

identification of the accused by this witness. He was also

pointedly cross examined in regard to the location of the

sweetmeat stall with reference to the road leading from the

tutorial coaching class to Howrah Bridge. It was suggested by

the defence that if one has to go from the tutorial class to

Howrah Bridge the road via the power-house is a longer route

and nobody would normally take such a route to reach the

Howrah Bridge. Of course this witness has denied the same. In

regard to the possibility of this witness identifying the accused

at the cricket ground, the defence has put searching questions

and this witness has admitted that he was not able to say the

names of other boys including those from his locality who

played cricket in that stadium. He has not given any specific

reason for having given the names of only the accused out of

the large number of boys playing in the stadium. But what is

important to notice in regard to the evidence of PW-2 is that

though he did mention to PW-9 on 2.12.1998 that he had seen

the accused and the deceased together on 1.12.1998, and the

said information was conveyed to PW-1 in their presence, the

same was not recorded in the FIR which is a glaring omission

creating doubt as to this witness having told PW-9 about they

having seen and identified the accused and deceased at the time

and date mentioned by them.

Similar is the evidence of PW-3. He in his examination in

chief had stated that while he was paying the price of the

sweetmeat, he saw PW-2 talking to Rudra, Vikky, Tikky,

Rabindra, Deepak and Mousam. He also stated that Rudra had

his cycle with him and thereafter these boys proceeded towards

Howrah maidan and when PW-2 questioned Rudra, he told him

that he was going with his friends to that side. He also states on

2.12.1998 he informed PW-9 what he had seen on 1.12.1998.

This witness also has been cross examined by the defence as to

their chance presence at the place of incident and their

possibility of having seen and identifying the accused persons

at that point of time. This witness has admitted that there were a

large number of people moving on the road at that point of time

and he has not given any specific reasons for recognising these

accused persons on that date. Apart from the fact that names of

PWs.2 and 3 are not mentioned in the FIR, they have also not

told the I.O. in their statement recorded under Section 161

Cr.P.C. that they had gone to the sweetmeat shop on that day.

So far as PW-3 is concerned it is seen from the evidence of

PW-43 Rupak Sarkar, the I.O. that this witness had not even

stated in his statement to the Police that he had known the

accused persons from before. Therefore the evidence of these

witnesses in the court in regard to their presence at the

sweetmeat stall becomes an improvement. In regard to PW-3,

there is also an improvement in regard to the identification of

accused by him. Thus, in the background of the fact that they

are chance witnesses, in our opinion we think it not safe to rely

on the evidence of these witnesses because their names are not

mentioned in the FIR, they did not tell the I.O. about their

presence at the sweetmeat stall and PW-3 improved his

statement in regard to the identification of the accused. The

courts below while accepting the evidence of all these witnesses

rejected the plea of defence to discard their evidence solely

because they were independent witnesses. The High Court also

observed that the omission of their names in the FIR is not fatal

because all details need not be mentioned in the FIR. Thus

certain glaring contradictions/omissions in the evidence of

PWs.2 and 3 and the absence of their names in the FIR has been

very lightly discarded by the courts below.

The next witness relied by the prosecution to show the

presence of the accused and the deceased near Howrah Bridge

is PW-13 Rajesh Tiwari. This witness in his evidence states he

is a resident of M.S.P.C. Lane, Howrah. He had gone to Bara

Bazar in Calcutta to purchase 2 mirrors and while returning by

foot he purchased a windsheeter on the way and ate some

Singharas. At about 8.50 p.m. he was proceeding on the right

side footpath of the Howrah Bridge when he noticed the

accused persons having an altercation with 2 boys whose names

he did not know inspite of knowing the identity, he did not

intervene in the altercation. He submits when he came to know

2 boys had been murdered on the Howrah Bridge on 1.12.1998,

he went to the Police Station on 5.12.1998 to inform them

voluntarily about he having witnessed the accused and the

deceased on the Howrah Bridge on 1.12.1998. This witness has

admitted that his brother was involved in a murder case

registered in Bantra Police Station which was investigating the

case of the murders of Pritam and Rudra also. To a question

asked by the defence as to the involvement of his brother in a

murder case as stated above, this witness answered thus :

"XXmn. for accd. Ramkrishna.

x x x Jitendra Tiwari is my elder

brother. I do not know whether my elder

brother is an accd. of murder case or not in

Bantra P.S. Case No.78/1998 dated

2.10.1998. In this case my elder brother was

arrested."

Suggestion put to this witness was that at the

instance of the Police, because his brother was seeking bail in

the said murder case, he had deposed falsely. This witness of

course has denied that fact but the fact remains his brother was

accused in the murder case. Therefore, we will consider the

evidence of this witness PW-13 in the background of the fact

that his brother was arrested on a charge of murder by the

Bantra Police Station. Admittedly, he has no known source of

income, he is a resident of Howrah, still he goes all the way to

Bara Bazar, Calcutta, to purchase two mirrors, and

coincidentally, he happens to be present at the right spot and at

the right time to see the altercation among these boys. The fact

that he had gone to Bara Bazar to purchase mirrors, was not

mentioned to the Police at the time when his statement was

recorded itself is an elaborate improvement in his evidence

before the court. In this background, if we examine his evidence

we notice the timing of his presence on the Howrah Bridge is

too far-fetched a coincidence to accept coupled with the fact

that his brother was involved in a pending murder case and of

all the witnesses, this witness volunteered to go to the Police

Station after 4 days to inform them of what he noticed on

1.12.1998 would make his evidence highly artificial for

acceptance by any reasonable person.

In such circumstances we think the High Court ought to

have been more cautious in accepting the evidence of this

witness.

For all the above reasons, the evidence of PWs.2, 3, 13

and 15 to which we have referred to hereinabove in our opinion

does not inspire confidence in us so as to accept the same for

the purpose of basing a conviction.

The prosecution then relies on the evidence of PWs.22

and 25 to establish the fact that on 1.12.1998 at about 9 p.m. an

incident had taken place on the Howrah Bridge in which 2

youngsters allegedly jumped into the river. These two witnesses

were the Beat Constables on duty at the Howrah Bridge on that

day. PW-22 in his evidence states on 1.12.1998 he was posted

at North Port Police Station as a Constable and he was on duty

on the North side of Howrah Bridge from 8 to 12 p.m. along

with another Constable Hari Sankar Roy, PW-25. While on

duty at about 9 p.m. and when they were proceeding towards

Howrah side from Calcutta on foot and they heard a cry of

someone that a boy and a girl had jumped into the Ganges.

Somebody else told them that 2 boys had jumped into the

Ganges so they proceeded to the place of the incident and they

found 200 to 300 persons present there. Out of the assembled

persons some were saying that a boy and a girl had jumped and

some others were saying 2 boys had jumped into the river. He

then sent his partner to the Police station to inform the Duty

Officer and he started dispersing the crowd. He found a cycle

by the side of Post No.12 of Howrah Bridge. He took the cycle

to the Police Station. He had identified the said cycle which

was later found to be that of deceased Rudra. This evidence of

PW-22 does not take the prosecution case any further than the

fact that on 1.12.1998 at about 9 p.m. he heard that 2 persons

had jumped from the Howrah Bridge. But something material

comes out of his cross examination during which he states there

are Police Goomties in the Howrah Bridge. In each Goomti one

Constable and one Officer remains posted round-the-clock.

There are policemen in civil dress guarding the bridge and

occasionally officers also check the bridge on mobile duty. He

further states that the traffic department controls the traffic on

Howrah Bridge and the incident in question would have taken

place about 20-25 cubits from Post or Goomty No.12.He also

stated that at the time of the incident there were a large number

of people either present at the place of incident or were

travelling on the bridge. He also stated that on being informed

the officers came to the spot and he was asked to take the cycle

to the Police Station. From his evidence it is clear that at all

given times or at least at 9 p.m. on 1.12.1998 on the Howrah

Bridge there were a large number of pedestrians and traffic. It is

also clear from his evidence nearly 200 to 300 persons were

present when or at about the time the incident took place.

From the evidence of this witness, it is also seen that at

any given point of time, there are a number of policemen

guarding the Howrah Bridge; some are stationed in the

Goomties, some patrolling the bridge in civilian clothes, apart

from occasional supervision by the higher officers. It is also

clear from the evidence of this witness that at the time of the

alleged incident, there were hundreds of people present on the

bridge. In this background, if really an incident as stated by the

prosecution has taken place near Goomty No.12 which is hardly

20 to 30 cubits from the place of the incident, could these

accused persons have escaped the said place after the murder of

the deceased without being either noticed or chased by the

Police at least ? The incident as described by the prosecution

shows that 5 accused persons assaulted at least one of the

deceased and physically threw both of them over the bridge. If

it is really true, it does not appeal to ordinary commonsense that

neither the Police nor anyone out of the onlookers in the crowd

either tried to prevent the incident in question or prevent the

accused from fleeing the place of incident or at least would not

have raised an alarm which would have attracted the otherwise

complacent policemen on duty on the bridge. These are not

circumstances which could be easily discarded on the specious

plea that of late independent witnesses do not get involved in

preventing crime or becoming witnesses to such crime. How

then did they get PWs.2, 3, 13 and 15 to give evidence ? To this

extent, we think the explanation of the prosecution as to the

non-availability of an independent witness is contradictory.

There is another major doubt as to the place of incident as

projected by the prosecution which has alleged that the incident

took place at about 9 p.m. on the Howrah Bridge at a time,

according to PWs.3, 13, 22 and 25, there were hundreds of

pedestrians and vehicular traffic, according to PW-22, there

were many police personnel also present on the bridge. Then

will it be reasonable for the court to accept that these accused

chose such a busy place to commit the crime ? We think not. In

our opinion, even this part of the prosecution case is totally

opposed to ordinary human conduct.

At this stage, it will be relevant to discuss the recoveries

of a letter and a book by the prosecution which according to

the prosecution establishes the further motive for murder. In

this regard, the prosecution relies on the evidence of PW-35

Barun Polley and PW-36 Subhro Sen to establish the fact that

letter Ex. V allegedly written by accused Mousam to accused

Vikky was recovered from the house of Vikky, while PW-16

Sukamal Dutta and PW-17 Chiranjib Das were examined for

the purpose of proving the recovery of exercise book (khata)

from the house of accused Mousam. Prosecution has also relied

upon the evidence of handwriting experts and the forensic

laboratory personnel to establish the fact that the letter was in

the handwriting of the accused and the pages on which the said

letter was written were removed from the exercise book

belonging to Mousam. The defence has seriously challenged the

recovery contending that the recoveries were not proved as

required in law. That apart, the learned counsel for the

appellants also attacked the prosecution case as to the

handwriting of A-1 in the letter as also the legality of obtaining

specimen handwriting by the Police during the investigation.

We do not think it is necessary for us to go into all these

arguments because after examining the evidence of Panch

witnesses to the recoveries, we think the prosecution has not

established the recovery of the exercise book from the house of

Mousam, A-1 as also the letter from the house of Vikky, A-5. A

perusal of the evidence of PWs.16 and 17 who were the Panch

witnesses for the recovery of the exercise book shows that they

have not really seen the place from where this book was

recovered by the I.O.. From their evidence it is noticed that in

the case of the book, the I.O. went inside the house of A-1 and

came out with the book. Admittedly, these Panch witnesses

have not seen where exactly from the house this book was

recovered. They have only spoken about the fact that the I.O.

came out of the house with the book and told them that he

recovered it from the room of Mousam, A-1. Almost similar is

the evidence of PWs.35 and 36 who were the Panch witnesses

for the recovery of the letter from the house of Vikky, A-5.

These witnesses have also not seen the actual recovery of the

letter. They had only seen the I.O. who told them that the letter

was recovered from the house of A-5 and signed the seizure

memo. In our opinion this evidence is insufficient to prove the

recovery. The very purpose of requiring a Panch to witness the

recovery is to see that independent witnesses vouchsafe for the

fact that a particular thing was recovered from a place where

the prosecution alleges it was found. It is absolutely necessary

for these Panch witnesses to see and observe from where

exactly these articles were recovered. It is not sufficient if the

I.O. produced certain articles and informed the Panch witnesses

that he has recovered it from a particular place, unless the actual

place of recovery from where the article was recovered is seen

by the Panch witnesses. In the absence of the same, their

signatures on the recovery Panchnama become useless in

proving the recoveries. In the instant case we have noticed that

the Panch witnesses who signed the Panchnama for the

recovery of the letter and the exercise book, have specifically in

their evidence under oath, stated that the I.O. went inside the

respective room/house and came out with the articles and told

the Panch witnesses that he had recovered them. None of the

Panch witnesses had seen the actual recoveries therefore, as

contended by the defence, the prosecution has failed to establish

the recoveries as required in law. The fact that the mother of

Mousam, A-1 had signed the recovery Panchnama in regard to

the exercise book or mother of A-3 had signed the Panchnama

for the recovery of letter from the house of A-5 is of no

consequence. They are not the Panch witnesses, their evidence

is not before the court. In such a situation we agree with the

learned counsel for the appellants that the recoveries are not

established in accordance with law hence the same has to be

ignored.

Before we conclude, we must place on record the fact

that we are not unaware of the degree of agony and frustration

that may be caused to the society in general and the families of

the victims in particular, by the fact that a heinous crime like

this goes unpunished, but then the law does not permit the

courts to punish the accused on the basis of moral conviction or

on suspicion alone. The burden of proof in a criminal trial never

shifts, and it is always the burden of the prosecution to prove its

case beyond reasonable doubt on the basis of acceptable

evidence. In a similar circumstance this Court in the case of

Sarwan Singh Rattan Singh v. State of Punjab [AIR 1957 SC

637] stated thus :

"It is no doubt a matter of regret that a foul

cold-blooded and cruel murder should go

unpunished. There may also be an element

of truth in the prosecution story against the

accused. Considered as a whole, the

prosecution story may be true; but between

'may be true' and 'must be true' there is

inevitably a long distance to travel and the

whole of this distance must be covered by

the prosecution by legal, reliable and

unimpeachable evidence before an accused

can be convicted."

It is also a settled principle of criminal jurisprudence that

the more serious the offence, the stricter the degree of proof,

since a higher degree of assurance is required to convict the

accused.

We are also aware that this Court does not disturb the

concurrent findings of the courts below if the same are based on

legal evidence merely because another view is possible. Thus,

keeping in mind the caution expressed by Baron Alderson

(supra) as also the need to respect the concurrent findings of

two courts below, we have assessed the evidence in this case

very carefully, but in spite of the same we are unable to concur

with the findings of the courts below. In our opinion, both the

courts below have departed from the rule of prudence while

appreciating the evidence led by the prosecution.

On the above basis, we notice that :

(a) the prosecution has not satisfactorily established the

receipt of telephone call on 1.12.1998 from Mousam to

deceased Pritam as spoken to by PW-1,

(b) the evidence of PWs.2, 3, 13 and 15 are not

creditworthy hence not safe to be relied upon;

(c) the recoveries of the letter from the house of A-5 and

the exercise book from the house of A-1 are not proved as

required in law;

Therefore, in our opinion the circumstances relied on by

the prosecution in this case are neither fully established nor are

consistent with the hypothesis of the guilt of the accused. These

circumstances do not exclude the hypothesis of innocence of

the accused, therefore, the appellants are entitled to the benefit

of reasonable doubt. Accordingly, we allow these appeals, set

aside the judgments of the courts below and acquit the

appellants of the charges framed against them.

The appeals stand allowed. The appellants, if in custody,

shall be released forthwith, if not required in any other case.