Calcutta High Court (Appellete Side)
Victor Barua vs The State Of West Bengal on 24 January, 2019
Author: Ravi Krishan Kapur
Bench: Joymalya Bagchi, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Ravi Krishan Kapur
C.R.A. NO.641 of 2013
With
C.R.A. NO.725 of 2014
Victor Barua
-vs-
The State of West Bengal
For the Appellant : Mr. R. Sengupta
in CRA 641/2013
For the Appellant : Mr. Subir Banerjee
in CRA 725/14 Mr. Sandip Bandopadhyay
For the State : Mr. N. Ahmed
Zareen N. Khan
Heard on : 07.01.2019
Judgment on : 24.01.2019
Ravi Krishan Kapur, J.:
1. Both these appeals are directed against the same judgment and order of conviction dated 03.07.2013 and 04.07.2013 passed by the Learned Sessions Judge, 3rd Court, (Special), Jalpaiguri in Sessions Case No.125 of 2005 convicting Victor Barua "the appellant No.1" under 2 Sections 302/34 & 201/34 and Rahul Barua "the appellant No.2"
under Section 201/34 of Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and to pay a fine of Rs.6,000 each and in default, to undergo rigorous imprisonment for a further period of six months each.
2. The case of the prosecution originated in a written complaint lodged by the complainant Manik Dey (PW-1) that on 16.12.2004 at about 7:30 pm, Raju Dey (hereinafter referred to as the victim), his nephew and the son of his eldest brother Amal Dey had gone out of his home to meet someone. He was riding a motor cycle and carrying his mobile telephone bearing no.9832363606 with him. However, since he did not return home and his family members were unable to trace him they were compelled to lodge a missing diary with the police on 17.12.2004.
3. Thereafter, the de-facto complainant had come to learn that the victim had intended to start a business of selling cash cards of Airtel company and for that purpose had also advanced a sum of Rs.10,000/- to the appellant No.1. However, the appellant no.1 was unable to procure the distributorship. Subsequently, the complainant had come to learn from another common friend Rupam Barua that the victim had only been repaid a sum of Rs.2,000/- out of Rs.10,000/-. Since, the victim had repeatedly demanded repayment of the balance money, the appellant No.1 had threatened to kill him. The complainant was further informed by Barun Barua, that on 16.12.2004 at about 6:10 pm, the victim had been asked by Victor Barua to visit him. The victim 3 had left the house carrying with him a Samsung Mobile set bearing IMEI No.352348006810960 and a Reliance sim bearing No.98323- 63606 with him. However, since leaving the home there was no trace of the victim. It was further alleged in the complaint that owing to differences between the victim and the appellant no.1, the appellant no.1 along with his companions had hatched a conspiracy whereby they had conspired to kidnap the victim with the ultimate intention of killing him.
4. Upon receipt of the aforesaid complaint, on 28.12.2004, the police initiated Bhaktinagar P.S. Case No.241/2 under Section 364 and 120B of the Indian Penal Code. During the course of investigation further sections i.e. Sections 302/201 and 379 of the Indian Penal Code were added. On completion of the investigation, a charge sheet being No.50/2005 dated 26.03.2005 was submitted under Section - 302/201/375/401 of the Indian Penal Code against the accused persons.
5. In the course of the trial, the prosecution examined as many as eighteen witnesses. The appellants were examined under Section 313 of the Code of Criminal Procedure and claimed to be innocent but declined to adduce any evidence in defence. At the conclusion of the trial, by his judgment and order, the Trial Judge convicted and sentenced the appellant nos.1 and 2 as aforesaid and acquitted the other persons.
6. Hence, the present appeal.
4
7. Mr. Sengupta appearing for the appellant No.1 strenuously argued that in convicting the appellant No.1 the Trial Court committed errors both in law and in the facts and circumstances of the instant case. He submitted that though the victim had gone missing on 16.12.2004, the complaint was lodged only on 28.12.2004. Hence, he submitted that there was an inordinate delay in lodging their complaint. Such delay was highly suspicious and without any explanation whatsoever. He submitted that the entire case of the prosecution was based on inconsistent statements of all the witnesses. He further submitted that the cause of death in the post-mortem report was not disclosed. The medical witnesses who had conducted the post-mortem had given an inferential opinion. In substance, he submitted that the entire case of the prosecution was unnatural, full of improbabilities and, therefore, neither the conviction nor the sentence against the appellant No.1 could be sustained.
8. Mr. Banerjee appearing on behalf of the appellant No.2 submitted that there was no evidence apart from the alleged recovery of a pair of spectacles which was worn by the victim from the appellant no.2. Insofar as the appellant No.2 is concerned, the recovery of the spectacles from the appellant No.2 was highly doubtful and improbable. There was no signature of the appellant No.2 in the seizure list from which it could be inferred that the spectacles had been recovered from the appellant No.2. The evidence of PW-7 who was the independent witness was highly unnatural and improbable. From the 5 evidence on record, it appears that the market was at quite a distance from the place of occurrence. Accordingly, it was submitted on behalf of the appellant No.2 that the entire case of the prosecution was insofar as the appellant no.2 is concerned unbelievable and filled with improbabilities. Thus, neither the conviction nor the sentence of the appellant No.2 could be sustained.
9. Before addressing the rival contentions which arise for consideration in the instant appeal it is vital to appreciate the entire evidence of the witnesses in this proceeding.
PW-1 (Manik Dey) is the de facto complainant. He deposed that Raju Dey (the victim), since deceased was his nephew. He deposed that on 16.12.2004 the victim went missing from his house. He searched for the victim in different places but could not trace him out. His elder brother Amal Dey had lodged a missing diary with the Bhaktinagar P.S. on 17.12.2004. He deposed that on 16.12.2004 the victim came to his house and after taking his lunch had gone out in his motor cycle. Whilst leaving the garage this witness had noticed that the victim had carried his Samsung mobile set. He deposed that the victim would generally carry powerless glasses while driving his motor cycle. The victim would usually return home at 10 pm, however, on the day of the incident, he did not return home. This witness had searched for the victim at the home of their relatives and friends and tried to contact him over the telephone through relatives and friends but could not trace him. He further 6 deposed that after 2/4 days of the incident he contacted one Rupam Barua @ Banti a classmate of the victim and asked him about the whereabouts of the victim. The said Rupam Barua had disclosed that he had contacted the victim over his mobile phone on 16.12.2004 when the victim had informed him that one Victor Barua had called him and was going to meet him on 16.12.2004. Rupam Barua also disclosed that Victor Barua had taken Rs.10,000/- from the victim on the pretext that he would assist the victim in obtaining an agency of Airtel. Rupam Barua also disclosed that he had also of his own given 15,000/- to Victor Barua. Thereafter, since no agency was given both Rupam Barua and the victim created pressure on Victor Barua for return of their money since all the persons had got their licence. Rupam Barua also informed this witness that the appellant no.1 had repaid a sum of Rs.2,000/- to the victim. However, the appellant no.1 had failed to pay the balance amount of Rs.8,000/- to the victim. On the day of the incident i.e. 16.12.2004, the victim had informed Rupam Barua, that the appellant no.1 had contacted the victim and requested him to meet him in the evening to take back the balance amount of Rs.8,000/-. This witness identified his signature on the complaint which was marked as Exhibit-1/1. This witness further deposed that on the basis of the complaint he was informed by the police personnel that they had arrested some persons including the appellants who had confessed to their guilt and further stated that 7 they could identify the place where the dead body of the victim was buried. Upon being informed by the police this witness along with the appellant no.1 and other police personnel had gone to Haidarpara as per the directions of the appellant no.1. The appellant no.1 showed them a by-lane and stated that the victim was murdered there. Subsequently, the police personnel along with this witness and the appellant no.1 had gone in a police jeep as per the directions of the appellant no.1 to Ashighar More. Upon reaching Ashighar More, the police had gone along with the appellant no.1 as per directions to the bank of river Sahu. Thereafter, the appellant no.1 showed the place to the police personnel and the witnesses from where the dead body of the victim was recovered. The police personnel thereafter dug out the place and recovered the dead body of the victim. This witness identified the dead body of the victim. The witness identified his signature on the inquest report which was marked Exhibit-2/1. Thereafter, the dead body of the victim was sent to the morgue for post-mortem. Subsequently, the police prepared a seizure list and the witness put his signature on the seizure list which was marked Exhibit-3/1. The witness also identified the mobile set of the victim which was marked Exhibit-II. In cross-examination, the witness deposed that he along with his other brothers including the father of the deceased victim reside in a joint family home. This witness contacted all the relatives after the victim had gone missing. This witness deposed that his elder brother 8 lodged a missing diary and he had accompanied him to lodge the diary. This witness denied the suggestion that the appellant no.1 had not made any statement in front of him.
PW-2 (Sushanta Paul) is a resident of Ashrampara which falls under Siliguri P.S. He deposed that while returning from his father- in-law's house the police personnel at Haidarpara had asked him to stop his scooter. Thereafter, the appellant no.1 was also stopped in front of this witness and upon being searched a mobile set was recovered from the possession of the appellant no.1. This witness identified his signature on the seizure list marked Exhibit-4/1. This witness also identified the mobile set which was found in the possession of the appellant no.1. In cross-examination, the witness denied the suggestion that no mobile set was recovered from the possession of the appellant no.1.
PW-3 (Ratan Kumar Roy) is a resident of Ashrampara under Siliguri P.S. He deposed that on 27.12.2004 or 29.12.2004 he had visited Ashighar More situated at Jalpaiguri to see the land with his assistant. Upon reaching the said location, he found a police van standing there. He deposed that the police personnel had informed him that the accused person showed them where the dead body of the victim was buried. He further deposed that the appellant no.1 had also divulged that he had buried one Raju Dey after murdering him on 16.12.2004. The appellant no.1 identified the place to the police where the dead body was buried. The recovery of the dead 9 body was made in front of him. This witness had put his signature on the inquest report. He identified the signature in the inquest report marked Exhibit-2/2. The police seized wearing apparels of the deceased under a seizure list and this witness put his signature therein. In cross-examination, the witness denied the suggestion that the appellant no.1 had not stated in his presence that he had buried the dead body of the victim after murdering him. PW-4 (Raju Chowdhury). He deposed that on 29.12.2004 he and PW-3 had gone to see land situated at Ashighar More. During his visit he found a police van and police personnel standing at a distance. Thereafter, the police personnel had requested him to accompany them to the place where a dead body had been buried. He along with his friend had accompanied the police personnel to the shore of the Sahu river where the appellant no.1 identified the place where the dead body of the victim had been buried. Thereafter, the police recovered the dead body. He deposed that the police held an inquest over the dead body and prepared an inquest report. He identified his signature on the inquest report. He also deposed that the police had seized the wearing apparels of the deceased and prepared a seizure list. He identified the signature on the seizure list as one of the witnesses. In cross-examination, this witness deposed that he could not remember whether he had signed on any paper or document. The witness also denied the suggestion that the appellant no.1 did not say where the dead body of the victim had been kept. 10 PW-5 (Dulal Roy). He deposed that he was a resident of Telepara under Bhaktinagar P.S. On 29.12.2004 he had gone to the field with his cows. Upon seeing the police personnel and other persons he had gone to the place of occurrence. He deposed that in front of him a decomposed dead body was recovered from the shore of river Sahu. The police also held an inquest and prepared a report where this witness had put his left thumb impression. This witness was not cross-examined.
PW-6 (Rupam Barua). He deposed that he was a resident of Ashrampara, Siliguri. He deposed that the victim was his friend. He deposed that to do business both he and the victim had given an aggregate a sum of Rs.15,000/- to Victor Barua to obtain a licence of Airtel. He further deposed that a further sum of Rs.15,000/- was paid by the victim to the appellant no.1. However, no distributorship was given either to him or to the deceased victim. He further deposed that he had repeatedly gone to the appellant no.1 and demanded return of their money. He deposed that the appellant no.1 had on repeated occasions requested for time to repay back the money but failed to pay the entire sum. He deposed that the appellant no.1 had finally given an old computer in lieu of sum of Rs.15,000/- repayable to this witness. He deposed that the appellant no.1 had promised to pay the deceased victim a sum of Rs.10,000/- but on various false pretexts had delayed payment of said sum. He deposed that on 11/12 December the appellant no.1 11 had paid a sum of Rs.2,000/- to the victim. He deposed that the appellant no.1 had informed the victim that he would pay the victim as and when it was possible. He deposed that on 16.12.2004 he had called the victim at around 6.20 pm. On being asked the victim had informed this witness that Victor Barua had called him over the telephone and had requested him to meet him at 7 pm to repay back the money. He deposed that from the night of 16.12.2004 the deceased victim had gone missing and had not returned home. He deposed that after 2/3 days he had met the de-facto complainant and had informed him that for the purposes of obtaining a distributorship of Airtel company they had given money to the said Victor Barua. He deposed that the victim had informed him that he would be visiting the appellant no.1 to obtain the balance sum of money. He had also come to learn that the appellant no.1 along with his associates had buried the dead body of the victim on the bank of the river Sahu. He identified the appellant no.1 who was present in the Court today. He deposed that he had given his statement before the learned Magistrate. In cross-examination, he deposed that he had recorded his statement under Section 164 of the Cr.P.C. PW-7 (Shyamal Dutta). He is a resident of Punjabipara, Siliguri. He deposed that on 02.01.2005 he was at his office situated at City Plaza Building at Sevoke Raod, Siliguri. He deposed that at around 11-11.30 am a police van stopped in front of his office and the police personnel had informed him that Rahul Barua who is in the police 12 van would hand over a pair of spectacles to the police which belonged to the victim. He deposed that the said Rahul Barua along with one Barun Das had taken the spectacles and handed over the same to Rahul Barua to keep the spectacles at his home. He deposed that the said Rahul Barua had informed the police that if they took him to the house he would return the spectacles to him. This witness along with the police personnel and Rahul Barua had gone to the home of Rahul Barua where the appellant no.2 handed over the spectacles to the police in front of this witness. The police seized the spectacles under the seizure list and put his signature on the seizure list. He identified his signature in the seizure list. He identified Rahul Barua who was present in the Court. In cross- examination, he deposed that his shop was situated at a distance of 2 ½ to 3 kilometres from the Bhaktinagar P.S. He deposed that he was parking his motor bike in front of his office when the police van came and picked him up. He deposed that he was not interrogated by the police in connection with this case. He deposed that he did not know the victim.
PW-8 (Arijit Dutta). He was an employee of Reliance Telecom Ltd. However, he is presently employed with Aircel Dishnet Wireless Ltd. He was employed with Reliance Telecom Ltd. between 11.03.2004 to 07.12.2007. He deposed that the police sent him a letter in his official capacity for sending call details of mobile no.9832015106 and another mobile no.9832376999. He deposed 13 that he had sent the call details along with the date and time which was obtained from Central Billing System, Calcutta. Thereafter, the call details were seized by the police under a seizure list in his presence. He identified his signature in the seizure list. He identified the call details which were approximately 11 sheets pertaining to the two mobile numbers which had been sent from the Central Billing System. He identified the seal and signature of the company which was marked Exhibit-8. He identified the sheets of the call details for the period from 1.12.2004 to 16.12.2004 in respect of the mobile no.9832363606. He identified his signature in the seizure list. He identified the signature of the Assistant Vice President of Central Billing System of Reliance Telecom Ltd. He deposed that mobile no.9832363606 was of the victim of Ashrampara, Siliguri. He deposed that the mobile being no.9832376999 was of the appellant no.1. He deposed that the mobile no.9832363606 was last used on 16.12.2004 between 6.35 pm to 6.36 pm. The IMEI number of the mobile no.9832363606 was 352348006810960. He deposed that the mobile set no. 352348006810960 was activated with another sim card bearing no.9832376999. He further deposed that the mobile no.9832363606 was switched off from the evening of 16.12.2004 to 19.12.2004. He deposed that the mobile set in which the aforesaid sim card was inserted and activated on 19.12.2004 at 3.46 pm was with the sim card bearing no.9832376999. In response to the question of the Court, he deposed that the appellant no.1 was the 14 owner of the sim card no.9832376999. In cross-examination, he deposed that there is a system of voice recording in the Central Billing System in Calcutta but there is no such system in Siliguri. PW-9 (Mrinal Kanti Barua). He is a resident of Haidarpara which falls under Bhaktinagar P.S. He deposed that Victor Barua the appellant no.1 is his nephew. He deposed that he had put his signature in the seizure list. He identified his signature on the seizure list. The signature of this witness in the seizure list was marked Exhibit-12/1. He deposed that he did not know the whereabouts of Victor Barua. His cross-examination was declined. PW-10 (Bappa Malakar). He is a resident of Siliguri. He is a photographer by occupation and runs a shop in the name and style of 'New Studio Photo Vision' located at Sevoke Road close to Bhaktinagar P.S. He deposed that on 29.12.2004 he had opened his shop when a police officer by the name of Raj Kumar had come to his studio and asked him to come along with him for taking photographs. He took his camera and had gone to the bank of the river Sahu. Upon reaching the location, he found many police personnel present there. Upon his arrival, he found a person with the police personnel at the location. Subsequently, he came to know that his name was Victor Barua. The appellant no.1 showed a place to the police where the body was located. Thereafter, the police personnel after digging the place found a dead body with wearing apparels. He further deposed that as per the instructions of the O.C 15 of Bhaktinagar P.S he took the photographs of Victor Barua. Thereafter, a dead body was shown to him and he took the photographs. The said photographs along with negatives have been marked as Exhibit-III. He also identified the endorsement made on the rear side of the photographs. He further deposed that he developed the photographs in his studio and the police collected the photographs from his custody. He also identified his signature in the seizure list. In cross-examination, he deposed that besides the seizure list and photographs he did not sign any other paper. PW-11 (Shankar Das). He was posted as an Assistant Sub-Inspector at Bhaktinagar P.S. He deposed that while Rahul Barua was in police custody he had disclosed that the spectacles of the victim could be recovered from his house if the police went to his house. He deposed that Rahul Barua had stated before him that the said spectacles belonged to the victim. He also deposed that Barun had handed over the said spectacles to him taking the same out of the pocket of the deceased. He deposed that he along with Sub- Inspector, Gopal Chhetri I.O of this case, the accused Rahul Barua and one public witness namely Shyamal Dutta had visited the home of said Rahul Barua. He deposed that after reaching the house of the appellant no.2, the appellant no.2 handed over the spectacles found on the table of the house to the Investigating Officer. He identified his signature in the seizure list being Exhibit-6/2. The spectacles have been marked as Exhibit-IV. In cross-examination, 16 he deposed that on the said spectacles a property register number is there which is marked 16/05. On being asked by the Court, he deposed that the appellant no.2 had disclosed to them that he would hand over the spectacles of the victim if the police had taken him to his home.
PW-12 (Narayan Pal) is a resident of Haidarpara under P.S. Bhaktinagar. He deposed that on 23.03.2005 as per the instructions of the police he signed the seizure list which was marked Exhibit- 12/2. He identified his signature. During cross-examination, he stated that no document was seized in his presence. PW-13 (Raj Kumar Roy) was the Assistant Sub-Inspector of Bhaktinagar Police Station. He deposed that the Investigating Officer had seized one mobile and one scooter in his presence. He identified his signature in the seizure list which was marked Exhibit-4/2. He also stated that the Officer-in-Charge, Achinta Gupta, seized a call data from the Reliance office situated at Sevoke Road, Siliguri. He had put his signature in the seizure list which was marked Exhibit- 10/2. He identified the signature on the seizure list. He also deposed that certain photographs were seized in his presence and he had put his signature in the seizure list being Exhibit-13/2. He identified the signature and General Diary which was marked Exhibit-14. During cross-examination, he denied the suggestion that he put his signature as per the directions of his superior officer. 17 PW-14 (Dr. Saibal Gupta) is a professor and the Head of the Department of North Bengal Medical College and Hospital. He deposed that since 29.12.2004 he had been posted in the same place in the same capacity. He deposed that on 29.12.2004 the dead body of the victim was brought to the department of his hospital. He deposed that the post-mortem was conducted by Dr. Uday Basu Roy Chowdhury who had since been transferred to Calcutta Medical College as an Associate professor. He concurred with the report. He further stated as per the requisition of the P.S. in respect of the same case he had given an opinion. He stated that in his opinion the death of the victim was anti-mortem and homicidal in nature. He proved his original report which was marked Exhibit-15. In cross- examination, he deposed that he could not recollect at the time of post-mortem whether he was present or not. He deposed that the post-mortem was done in a scientific manner.
PW-15 (Achintya Gupta) is an Inspector of police who was posted with the Bhaktinagar P.S. at the relevant point of time. He deposed that he had received a written complaint from the de-facto complainant. He deposed that on the basis of the complaint he started a case being Bhaktinagar police case no.471/2004. He deposed that he had drawn the First Information Report. He identified his signature in the FIR which was marked Exhibit-17. He had endorsed the case to Gopal Chhetri for investigation. He had submitted a supplementary Case Diary bearing no.1 to 7 dated 18 28.12.2004. He deposed that initially on 17.12.2004 a missing diary was lodged by one Amal Dey. He deposed that the missing diary had been received by Joshep Kujur, a Sub-Inspector of the police in the usual course of business. He identified the missing diary which was marked Exhibit-18. He knew the signature of the Sub-Inspector. He further deposed that he had seized the call data pertaining to mobile no.9832363606 which was produced by Shri Arijit Datta Chowdhury of Reliance Telecom Department Pvt. Ltd. an officer for the period of 01.12.2004 to 16.12.2004 at 18.36 hours which had been marked Exhibit 10. He further deposed that he seized a call data in respect of mobile no.9832015106 for the period from 01.12.2004 to 26.12.2004 and the call data of mobile no.9832376999 for the period of 19.12.2004 to 26.12.2004 under a seizure list being Exhibit-7. His cross-examination was declined. PW-16 (Gopal Chhetri) was the Investigating Officer posted with the Bhaktinagar P.S. on 28.12.2004 i.e. the date of the incident. During investigation he visited the place of occurrence. He recorded the statement of the witnesses under Section 161 of the Cr.P.C. He deposed that the victim had a mobile which had an IMEI number. He deposed that the call received in the mobile of the victim was that of the appellant no.1. He deposed that he spoke to an officer of Reliance to ascertain the details of the call. He deposed that the Reliance Office had stated in writing that the call details reflected that the mobile of the victim was used by the appellant no.1 and the 19 Sim stood in the name of appellant no.1. He deposed that after investigation he had arrested the appellant no.1. He deposed that on the basis of the statement of the appellant no.1, he recovered the dead body of the victim from the river Sahu. He deposed that the body of the victim had recovered at the distance of one kilometre from the village Telepara. He deposed that he recorded the statement of the appellant no.1 and the relevant portion of the statement was marked Exhibit-19. He identified his signature on another seizure list which prepared by him marked Exhibit-3/4. He deposed that a motor cycle and a Samsung mobile were seized from the possession of the appellant no.1. He deposed that the seized mobile had an IMEI no.352348006810961. He deposed that the seized mobile belonged to the victim which was marked Exhibit-4/3. He deposed that he also seized a spectacle of the victim from the possession of the accused Rahul Barua and prepared a seizure list. He identified the seizure list which was marked Exhibit-6/3. Subsequently, he handed over the Case Diary to the Bhaktinagar P.S. on 02.02.2005 upon his being transferred. In cross- examination, he denied the suggestion that he had not recorded the statement of the appellant no.1. He denied the fact that the investigation had been conducted in a perfunctory manner by him. PW-17 (Sanatan Singh). He was a Sub-Inspector of police posted with the Bhaktinagar P.S. on 10.02.2005. He deposed that the instant case was re-endorsed to him. After re-endorsement, he 20 recorded the statements of the witnesses. He deposed that he collected the Supplementary Case Diary from Achinta Gupta and also seized some photographs from New Studio Photo Vision under a seizure list marked Exhibit-13/3. Thereafter, he submitted a charge sheet under Section-364/302/201/379/411/120B against the five accused persons. During cross-examination, he denied the suggestion that he had conducted the investigation in a perfunctory manner.
PB-18 (Joseph Kujur) was a Sub-Inspector of police posted with the Bhaktinagar P.S. on 17.12.2004. He deposed that while he was performing the general diary duty, one gentleman came to lodge a missing diary at the police station about his son. He diarised the said information vide G.D entry no.862 dated 17.12.2004. He identified the extract copy of the said G.D entry which was marked Exhibit-20. On being asked by the Court he named the missing person recorded in the diary entry as Raju Dey.
10. Besides the aforesaid oral evidence, the prosecution had adduced diverse documentary evidence. The prosecution also adduced material exhibits in the form of wearing clothes of the deceased victim, mobile set and spectacles.
11. Though an opportunity was given to the defence but the defence refused to adduce any evidence. The defence had claimed in the statements recorded under Section 313 Cr.P.C that they were innocent and all the charges framed against them are false.
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12. It is an indisputable fact that the death of the victim was homicidal in nature and the case of the prosecution rests primarily on circumstantial evidence. Moreover, in this case undoubtedly, there are no eye-witnesses and the prosecution has sought to establish the case against the appellants from circumstantial evidence. The law regarding the nature and character of proof of circumstantial evidence has been repeatedly reiterated by different Courts including the Hon'ble Supreme Court of India. For the sake of convenience, certain well-settled principles pertaining to the law of circumstantial evidence are reiterated hereinbelow:
(a) In Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500] the Hon'ble Supreme Court defined circumstantial evidence to mean as follows:
"Circumstantial evidence in this context means, a combination of facts creating a network through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt."
(b) In the classic case of Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343] it was observed as follows:
'10. ... It is well to remember that 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 22 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.'
(c) Thereafter, in Charan Singh v. State of Uttar Pradesh [AIR 1967 SC 520] the Hon'ble Supreme Court expounded the proposition laid down in Hanumant Case (supra), and observed as under:
It is well-established that 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 the circumstances so established should be consistent only with the hypothesis of the guilt of the accused person; that is, the circumstances should be of such a nature as to reasonably exclude every hypothesis but the one proposed to be proved. To put it in other words, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person.
(d) In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;23
(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."
(e) In Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC 706 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-
11, para 10) '(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.'
(f) In C. Chenga Reddy v. State of A.P. [(1996) 10 SCC 193] it has been observed as follows: (SCC pp. 206-07, at para 21) '21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances 24 should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.'
(g) In Asraf Sheikh v. State of W.B. [(2008) 15 SCC 597] at page 600
9. "It has been consistently laid down by the Hon'ble Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka , State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab [AIR 1954 SC 621] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
(h) In a recent Supreme Court decision Suresh and Another Vs. State of Haryana [AIR 2018 SC 4045] it was held as follows:
39. Circumstantial evidence are those facts, which the Court may infer further. There is a stark contrast between direct evidence and circumstantial evidence. In cases of circumstantial evidence, the Courts are called upon to make inferences from the available evidences, which may lead to the accused's guilt. In majority of cases, the inference of guilt is usually drawn by establishing the case from its initiation to the point of commission wherein each factual link is ultimately based on evidence of fact or an inference thereof.
Therefore, the Courts have to identify the facts in the first place so as to fit the case within the parameters of 'chain link theory' and then see whether the case is made out beyond reasonable doubt.
25
13. A significant feature of the case of the prosecution in the instant case was that the body of the victim was recovered as per the information of the appellant no.1. In this connection, the evidence of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 and PW-16 was cogent, credible and duly corroborated. All these witnesses deposed that the appellant no.1 had made a statement stating that he would show the police officials where the dead body of the victim was buried. In fact, the appellant no.1 had taken the police personnel to the bank of the river Sahu and exactly pointed out where the dead body of the victim was buried. Subsequently, the body of the victim was recovered at the instance of the appellant no.1. The appellant no.1 also narrated where he had killed the victim. These were all facts with the special knowledge of the appellant no.1. Hence, the doctrine of confirmation by subsequent events is attracted and I have no hesitation in holding that discovery and recovery of the dead body is a relevant fact or material which has been correctly and justifiably relied on by the Trial Court. In State of Maharashtra Vs. Damu reported in (2000) 6 SCC 269 it has been held as follows:
"35. ........It is now well settled that recovery of an object is not discovery of a fact as envisaged in [Section 27 of the Evidence Act, 1872]. The decision of the Privy Council in Pulukuri Kotayya Vs. King Emperor reported in (1946-47) 74 IA 65 is the most quoted authority for supporting the interpretation that the 'fact discovered' envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as it, but the information given must relate distinctly to that effect."26
I also find that there are sufficient materials on record which has been duly corroborated and show that the appellant no.1 had taken the Investigating Officer (PW-16) to the spot and pointed out the place where the dead body was buried. This has been correctly and rightfully treated by the Trial Court as an admissible piece of evidence under Section 27 of the Evidence Act to show the conduct of the accused.
14. The next circumstance which according to me is a clinching factor is the recovery and the details of the mobile phone and the number of the victim as well as the appellant no.1. I find from the evidence that it is evident that the appellant no.1 had gained access to the mobile set being IMEI no.352348006810960 which belonged to the victim. From a letter, which was marked Exhibit-11, issued by Reliance Telecom Ltd. dated 28.01.2005 as well as from the evidence of PW-8 it is evident that the mobile no.9832363606 belonged to that of the victim and mobile no.9832376999 belonged to that appellant no.1. It is further evident from the call data of the mobile phone numbers of the aforesaid two phones that the phone number which belonged to that of the victim being 9832363606 was last used on 16.12.2004 between 6.35 pm to 6.36 pm. The mobile set of the victim having mobile no.9832363606 had an IMEI number being 3523480010960. The mobile set bearing IMEI no. 3523480010960 had been activated with another sim card being no.9832376999 on 19.12.2004 at 3.46 pm. From the evidence of PW-8, it further appears that this sim card i.e. no.9832376999 belonged to the appellant no.1. It also appears from the call register 27 that the mobile no.9832363606 which belonged to the victim had been switched off from the evening of 16.12.2004 to 19.12.2004. In the aforesaid factual matrix, it is evident that, the appellant no.1 had in his possession the mobile set of the victim from 16.12.2004 to 19.12.2004. I am of the opinion that both the documentary and the oral evidence adduced by the prosecution on this aspect were clear, cogent and without any inconsistencies.
15. Thirdly, the evidence of Rupam Barua (PW-6) clearly brings out the aspect of the motive which in a case based on circumstantial evidence assumes great significance inasmuch as its existence in an enlightening factor in a process of presumptive reasoning. The evidence of PW-16 was clear and categorical. He deposed that there were financial transactions between the appellant no.1, the victim and himself. The victim had paid money to the appellant no.1 in order to obtain a distributorship. The victim was repeatedly demanding return of the money from the appellant no.1. The appellant no.1 was unable or unwilling to repay the money to the victim. The evidence on this aspect was also duly corroborated, cogent, creditworthy, believable and there are no reasons whatsoever to reject or doubt the same.
16. Another facet which is required to be addressed is that though all the incriminating circumstances which point to the guilt of the appellant no.1 had been put to him yet he chose not to give any explanation under Section 313 of the Cr.P.C excepting choosing the mode of denial. It is well-settled law when the attention of the accused 28 is drawn to the said circumstances that inculpated him in the crime and he fails to offer an appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances State of Maharastra Vs. Suresh reported in (2001) 1SCC 471. In the instant case though a number of circumstances were put to the appellant no.1 yet he made a bald denial and did not proffer any explanation whatsoever. Accordingly, this is an additional link that goes against the appellant no.1.
17. It was contended on behalf of the appellant no.1 that there was delay in filing the FIR. It has been submitted on behalf of the appellant no.1 that though the victim had gone missing on 16.12.2004 the complaint was lodged on 28.12.2004. As a proposition of law, it is well settled, that it is obligatory on the part of the Court to consider whether there was any delay in lodging the FIR and whether this adversely affects the case of the prosecution which would depend upon the appreciation of the evidence in its totality. In State of H.P. Vs. Gian Chand [(2001) 6 SCC 71], it has been held that the delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay. If the explanation offered is satisfactory and there is no possibility of embellishment the delay ought not to be treated as fatal to the case of the prosecution.
18. On this aspect of the case, I find from the evidence of PW-1, PW-6, PW-13 and PW-18 that, it has been sufficiently proved that the family 29 of the victim had filed a General Diary on 17.12.2004 with the Bhaktinagar P.S case which was marked as G.D entry no.862 dated 17.12.2004 being Exhibit-20. The evidence of PW-1 cogently and satisfactorily proves the fact that after the victim had gone missing on 16.12.2004 a General Diary was filed by the family on 17.12.2004 and upon making sufficient and reasonable enquiries the first information report came to be filed on 28.12.2004. Accordingly, it scrutinised on the anvil of the aforesaid enunciated principles of law in the given facts and circumstances of the instant case, I am of the view that there is no embellishment in the FIR nor could there have been any possibility of any embellishment. The explanation offered pertaining to the steps taken by the family of the victim between 16.12.2004 to 29.12.2004 have been given credence to by the Trial Court and in my opinion adjudging the entire scenario of the prosecution case the same deserves to be accepted. Hence, this submission made on behalf of the appellant no.1 is rejected.
19. In respect of the other argument on behalf of the appellant no.1 that there were inconsistent statements of some of the witnesses and a few missing links in the evidence of the witnesses, I am of the view that it is well settled that minor discrepancies and variations in the evidence of witnesses ought not to be a ground to discard otherwise acceptable evidence. As stated hereinbefore, on a holistic approach of the entire evidence adduced by the prosecution I am of the opinion that there were no factors which cast a doubt on the genuineness of the case of 30 the prosecution insofar as the appellant no.1 is concerned. Accordingly, I reject this argument on behalf of the appellant no.1.
20. On behalf of the appellant no.1 reliance has been placed on the decision of the Hon'ble Supreme Court in Bakhshish Singh vs. State of Punjab reported in [(1971)3 SCC 182] for the proposition that mere pointing out the place where the dead body of the deceased have been thrown would not be a conclusive circumstance to satisfactorily establish the guilt of the accused. In that decision, it was conclusively proved that save and except the fact that the accused had pointed out to the place where the dead body of the deceased have been thrown, there was no other circumstance which pointed towards the guilt of the accused. Accordingly, the said decision is clearly distinguishable on facts. As discussed hereinabove, there is a chain of evidence in the instant case which leaves no reasonable ground for a conclusion consistent with the innocence of the appellant no.1. The fact that the appellant no.1 had pointed out where the dead body of the victim was lying is not only a strong suspicion against the appellant no.1 but along with the chain of circumstances as discussed hereinabove conclusively proves towards the guilt of the appellant no.1. The other authority cited on behalf of the appellant no.1 is the decision reported in Jaydeb Patra vs. State of West Bengal 2013 (2) C.Cr.LR (SC) 1. In the facts of the said decision there were inconsistencies and missing links in the forensic reports of the Senior Chemical Examiner as to whether poison had been administered to the deceased or not. Thus, it 31 was held that the prosecution had failed to establish beyond reasonable doubt that poison had been administered to the deceased. This was the very foundation of the case of the prosecution in that decision. I am of the view that the said decision is totally inapplicable and distinguishable in the facts and circumstances of the instant case. Though, there is no quarrel with the proposition of law laid down in the said decision, I find that in the said decision the prosecution had failed to discharge the burden of establishing beyond reasonable doubt the cause of death of the deceased. As discussed morefully hereinabove, there is no doubt in the instant case that the victim had died out of unnatural causes and all the evidence which has been duly corroborated by the witnesses points towards the guilt of the appellant no.1. Hence, the reliance placed on both the decisions is misplaced and unfounded.
21. In the light of the aforesaid circumstances, I am of the opinion that the circumstances from which the guilt of the appellant no.1 have been fully established and are definite, conclusive and convincing. There are no gaps or infirmities in the evidence adduced by the prosecution. The claim or link of the circumstance is clearly established and comprehensively complete. I am of the view that the prosecution has been able to establish and prove its case insofar as the appellant no.1 is concerned beyond reasonable doubt. I am, therefore, minded to uphold the conviction insofar as the appellant no.1 is concerned. 32
22. Insofar as the appellant no.2, in CRA 725/14, is concerned there is no evidence apart from the recovery of the spectacles of the victim from the home of the appellant no.2. It is an admitted position that there was no signature of the appellant no.2 on the seizure list pertaining to the recovery of the spectacles. The evidence of PW-7 in this regard is highly unnatural and improbable. He was picked up from the market place which was located approximately 2 ½ to 3 Kms. away from the place of recovery. There was no statement taken down in writing by the appellant no.2. In fact, even the oral evidence of the witnesses regarding to the recovery of the spectacles from the appellant no.2 was contradictory and irreconcilable. Whereas PW-7, claimed that the recovery of the spectacle was made from the police vehicle, PW-8 deposed that the appellant no.2 had disclosed this fact in the police station. Thus, in view of the deficiency and loose ends pointed out in the case of the prosecution and taking a holistic approach insofar as the appellant no.2 is concerned, I am not inclined to uphold the conviction of the appellant no.2.
23. I am, therefore, of the opinion that the appellant no.2 is certainly entitled to the benefit of doubt. I am of the view that the prosecution has failed to prove the case where the appellant no.2 is concerned beyond reasonable doubt. I, therefore, set aside the order of the appellant no.2 i.e. Rahul Barua under Section 201 and Section 34 of the Indian Penal Code and allow the appeal being CRA No.725/14. The appellant no.2 is acquitted of the charges framed against him. He shall 33 set at liberty if not required to be detained in connection with any other offence.
24. A copy of the judgment along with the Lower Court Records be sent back to the Court below at once. A certified copy of this order, if applied for, be given to the parties on a priority basis upon compliance with all necessary formalities.
I agree.
(Joymalya Bagchi, J.) (Ravi Krishan Kapur, J.)