Indira Banerjee, J@mdashThis appeal is against a judgement and order dated 15th December, 2012, and an order of sentence dated 19th December, 2012, passed by the Additional Sessions Judge, 6th Court, Paschim Medinipur, whereby the accused appellant Sk. Akbar Ali and one Sk. Serif Ali were found guilty and convicted of charges under Sections 302/34 and 382/34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years for offence under Section 382 and rigorous imprisonment for life for offence under Section 302 of the Indian Penal Code.
2. Pursuant to a First Information Report lodged by one Tarun Kumar Roy, a lecturer of Jhargram Polytechnic College, on 1st March, 2012, Kotwali Police Station Case No. 125/2012 dated 1st March, 2012 was started against unknown persons. No one was named in the First Information Report.
3. However, after investigation was completed Charge Sheet No. 246 of 2012 dated 30th April, 2012 was filed under Section 302/382/34 of the Indian Penal Code against the accused appellant, Sk. Serif Ali and Sk. Kazim Ali, who was found to be a juvenile and referred to the Juvenile Justice Board.
4. It is the case of the prosecution that the de facto complainant Tarun Kumar Roy resided with his old mother. On the morning of 27th September, 2012, the de facto complainant left for college, leaving his mother alone at home. At about 5 p.m. in the afternoon, when he was returning home, he received a call on his mobile phone, from some unknown person, informing him that his mother had been murdered.
5. On receiving the phone call the de facto complainant hurried home and found that the door at the back of the house was open and the dead body of his mother was lying on the lower end of the staircase with injuries.
6. The de facto complainant found that furniture and other articles in the ground floor and upper floor rooms were all scattered and the following items were missing from the house:--
"(i) 21" LED Samsung TV.
(ii) Portable LCD TV.
(iii) 500 GB Samsung External Hard Disc.
(iv) One Lakh Rupees Cash.
(v) Gold Ornaments.
(vi) Utensils.
(vii) Plumbing fittings in kitchen and toilet.
(viii) ATM Card (SBI Jhargram)
(ix) One Pair Woodland shoes.
(x) Mobile phone."
7. In his FIR, the de facto complainant has stated that he came to learn that the domestic help had come to work at about 4:30 p.m. in the afternoon and found the door closed. The domestic help called the deceased a number of times. When the deceased did not respondent to her calls, she informed the people of the locality.
8. In the charge-sheet, it was alleged that the accused appellant and Sk. Serif Ali had, along with Sk. Kazim, committed murder of the deceased intentionally and had committed theft of the articles specified above.
9. The charges, as contained in the said charge sheet are set out hereinbelow for convenience.
"I, Sri Subhendu Samanta, 6th Additional Sessions Judge, Paschim Medinipur. Do here by charge you,
1. Sk. Serif Ali.
2. Sk. Akbar Ali
Firstly, as follows :-- That you all along with other accused Sk. Kazim Ali in furtherance of all of your common intention on or about 01.03.12. this day at about in between morning to afternoon at Najarganj, 3 No, pump House, in the house of Tarun Roy within P.S - Kotwali, Midnapore, within the Dist. - Paschim Medinipur and also within the jurisdiction of this Court committed murder intentionally (or knowing) causing the death of Smt. Gita Rani Roy aged about 85 years W/O late Hariprasad Roy and thereby committed an offence punishable under Section 302, read with the Section 34 of the Indian Penal Code, and within the Cognizance of this Sessions Court.
Secondly, that you all along with other accused Sk. Kajim Ali in furtherance of all of your common intention on or about the same date, day, time and place you all committed theft of LED TV, portable LCD TV, External Hard Disc, Cash of Rs. One lakh, Gold ornaments, utensils, plumbing fittings in kitchen and toilet ATM Card (S.B.I- Jhargram), one pair shoes (Woodland), Mobile etc. from the possession of Smt. Gita Rani Roy after your having made preparations for causing death or hurt or restraint to her in order to the committing of such theft or in order to the effecting her retaining of such property stolen and thereby committed an offence punishable U/S 382, read with Section 34 of the Indian Penal Code, and within the Cognizance of this Court.
And I hereby direct that you be tried by the court on the said charge."
10. About 23 witnesses were examined on behalf of the prosecution. The defence did not examine any witnesses. The accused appellant and Sk. Serif Ali were, however, examined under Section 313 of the Criminal Procedure Code.
11. The de facto complainant, Tarun Kumar Roy, deposed as the First Prosecution Witness. He stated that on 1st March, 2012, he had left for college after which his mother locked the door from inside as usual. At about 5 p.m. when he was returning home and had almost reached his house, he received a telephone call from an unknown person informing him that his mother had been murdered and his house had been robbed.
12. When he came near his house, he found that a huge crowed had gathered in the front of his house. On entering the house he found the dead body of his mother lying under the flight of the staircase with blood and several blunt injuries. On seeing the dead body of his mother with injuries and blood, he was so shocked that his neighbours had to hold him.
13. PW1 stated that he entered the rooms to find that utensils and other articles were scattered all over. He found that an LCD TV, utensils, fittings of the kitchen and bathroom, cash amounting to Rs. 1 lakh, an ATM Card, an external hard disc of 500 GB, portable TV, one pair of woodland shoes and three mobile phones were stolen.
14. A student of the de facto complainant, Biswajit Roy, took the de facto complainant to the police station where he narrated what he had seen and also filed a written complaint. The complaint was written out by Biswajit Roy, student of the de facto complainant, in the presence and as per the instructions of the de facto complainant. The de facto complainant identified his signature on the written complaint.
15. This witness (PW1) further deposed that his elder brother Swapan Roy lived separately. This witness also deposed that on receiving notice from the police he had appeared before the T.I. parade and identified the articles and also made a prayer for return of the articles. The articles were returned to him against a bond.
16. This deponent stated that he had a maid-servant, Jayanti Das, who used to work at his house between 6 a.m. and 8:30 a.m. in the morning and again from 4:30 p.m. to 6 p.m. in the afternoon. This witness stated that the house was surrounded by a boundary wall about 4 1/2 ft. in height and there were two gates, of which the small one at the western side, was locked most of the time from inside. The other gate, was the main gate used for egress and ingress. Usually when he left his house his mother locked the gates from inside. This witness was cross-examined at length on behalf of the accused appellant as well as Sk. Serif Ali.
17. The 2nd Prosecution Witness was Smt. Jaya Das, who had worked with the deceased and the de facto complainant as a maid-servant for about six years. She stated that the deceased had been murdered.
18. PW 2 deposed that on the date of the incident she had attended the house of the de facto complainant in the morning and when she left, the deceased, that is, the mother of the de facto complainant, had locked the grill gate from the inside as usual. She again went to the house of the de facto complainant at about 4:30 p.m. and called out to the deceased, but no one answered. She found the grill gate was locked from inside. She thereafter informed one Raju Pandit who lived six/seven houses away from the house of the de facto complainant. On being called this Raju Pandit came and they both started shouting for the deceased.
19. Raju Pandit thereafter jumped over the boundary wall and entered the house from the door at the back, which was closed, but not locked. On entering the house Raju started crying and thereafter he unlocked the grill gate with the key kept on the table in front of the door. Thereafter she (PW2) entered the house through the grill gate and found the dead body of the deceased under the flight of stairs. There was blood and several injuries all over the dead body and Raju Pandit was crying.
20. After entering the house this deponent found the TV, utensils, fittings of bathroom and the other household articles were scattered. The almirah was open. She stated that Raju made a phone call to the de facto complainant and the de facto complainant reached home about 10 minutes after the phone call. She stated that she was at the place of occurrence till about 9/9:30 p.m. The police seized the cover of a mobile phone in her presence and prepared a seizure list which was signed by her as witness.
21. In cross-examination PW2 stated that she did not find any broken door or broken padlock. She admitted that it was not possible for her to read the entire seizure list. She stated that she had put her signature over the seizure list as per the instruction of the police. She could not have ascertained the truth of the version of the police.
22. The 3rd Prosecution Witness, Raj Kumar Pandit, confirmed that he lived 5/6 houses away from the house of the de facto complainant and he often visited the house of the de facto complainant, which was two storied. This deponent stated that the de facto complainant had been residing at the house of the deceased, his mother. The de facto complainant was unmarried. The de facto complainant''s mother was murdered on 1st March, 2012. This deponent deposed that he was an electrician. On the date of the incident he had returned home from work at about 4/4:30 p.m.. After a while someone called from outside and when he came out he found the maid-servant of the de facto complainant Jayanti Das, who told her that the de facto complainant''s mother was not responding to her calls.
23. PW3 stated that he went to the house of the de facto complainant along with the maid-servant and shouted out for the de facto complainant''s mother, but there was no response. He, thereafter, jumped over the boundary wall and found the door at the back was not locked from inside. He entered the house from that door. After entering the house he again called the mother of the de facto complainant but no one responded.
24. This deponent stated that he found two tube lights on in the computer room. The room was in a mess but the de facto complainant''s mother was not there. He came out of the room and found the de facto complainant''s mother under the landing of the staircase, with several injuries on her body including her ears. He also found bloodstains on the body of the deceased.
25. This deponent stated that he touched the de facto complainant''s mother and asked her what had happened. When he touched the de facto complainant''s mother, her hands just slipped down whereupon he started screaming that the de facto complainant''s mother was not responding.
26. This deponent stated that the maid-servant told this deponent to open the front gate. He opened the grill gate with the key which was on the table. The maid-servant entered the house and also called the de facto complainant''s mother but she did not respond.
27. Thereafter, the maid-servant said that everything in the house had been stolen. The de facto complainant''s mother had been murdered. This deponent came out of the house and made a phone call to the de facto complainant. The people of the locality came over. The de facto complainant came about 15 minutes after the phone call.
28. This deponent was also cross-examined at length on behalf of the accused appellant as well as Sk. Serif Ali. What has emerged from the evidence of this witness is that the de facto complainant''s mother was found dead with injuries over her body.
29. The 4th Prosecution Witness, Samir Kr. Senapati, deposed that he knew the de facto complainant. On receiving a phone call from the Raj Kumar Pandit informing him that someone had murdered the de facto complainant''s mother, he went to the house of the de facto complainant at about 5:30/6 p.m. and found that about 100 people had gathered there. He entered the house of the de facto complainant and found the de facto complainant''s mother sitting under the landing of the staircase and leaning backwards.
30. He also found that household articles were scattered all over. Thereafter, he along with some others, who had gathered at the place of occurrence went to the first floor and found a mess on the first floor as well. This deponent informed the Kotwali Police Station of the incident over telephone. The police, however, informed him that as there was no police vehicle available it would not be possible for the police to come immediately.
31. This deponent claimed that he went to the police station along with the de facto complainant, Biswajit Roy and Raj Kumar Pandit and narrated what had happened to the Inspector-in-Charge. The Inspector-in-Charge required a written complaint from the de facto complainant. As the de facto complainant was mentally disturbed by reason of the incident, Biswajit Roy wrote the written complainant as per the instruction of the de facto complainant and in the presence of this deponent. Thereafter the police arrived at the place of occurrence.
32. The 5th Prosecution Witness, Biswajit Roy, deposed that he knew the de facto complainant who used to give him engineering lessons as a student. On the date of the incident, he got a phone call at about 5/5:30 p.m. from a person who informed him of the incident. On entering into the house he found the de facto complainant''s mother under the landing of the staircase in a half lying position. He stated that Samir Senapati telephoned the Kotwali Police Station and informed the police of the incident but was told that the police could not come immediately due to shortage of policemen. Thereafter, this deponent accompanied the de facto complainant to the police station along with Samir Senapati and Raju Pandit. As the de facto complainant was in a disturbed state of mind, the de facto complainant requested this deponent to write the complaint and accordingly this deponent wrote the complaint on the instructions of the de facto complainant.
33. This deponent deposed that after receiving the written complaint, the police came to the place of occurrence and searched the entire house and also seized some articles in his presence. This witness signed the seizure list as a witness. In cross-examination he stated that the articles seized were, a bloodstained, rolled calendar, a bloodstained piece of thermocol and a bloodstained handkerchief.
34. The 6th Prosecution Witness, Sk. Rafique Hossain @ Munna, deposed that on 1st March, 2012 the de facto complainant telephoned him at about 5:30 p.m., whereupon he went to the house of the de facto complainant. After entering the house, he found the de facto complainant''s mother lying under the staircase. The household articles were scattered. This deponent claimed that he had been interrogated by the police.
35. The 7th Prosecution Witness, Smt. Swastika Chatterjee, deposed that the de facto complainant was her younger brother and the deceased was her mother. She stated that her mother had been murdered on 1st March, 2012. At that time she was at her office at Kharagpur. Rajaram Pandit informed her of the incident over telephone. Later the de facto complainant also phoned her. She stated that the police seized the cover of a Micromax mobile from the place of occurrence, in her presence, after preparing a proper seizure list. She identified her signature on the seizure list.
36. The 8th, 9th, 10th, 11th and 12th Prosecution Witnesses are different seizure witnesses of whom witness Nos. 10 and 12 had to be declared hostile. The 9th Prosecution Witness, Joydeb Das, who did catering work, deposed that about six months ago, the police had seized a Nokia mobile phone and one Airtel Sim card in his presence. He had signed the seizure list. He identified the mobile phone seized by the police in his presence. He further deposed that on 24th March, 2012 at about 12:30/1 a.m. at night a wooden ''piri'' was seized in his presence which was shown by one of the accused who standing on the dock, that is Sk. Serif. He stated that he had put his signature on that list as well. Nothing was seized from the accused appellant or from the residence of the accused appellant in the presence of this witness.
37. The 10th Prosecution Witness, Sk. Aritul Ali, a plumber, deposed that he could not say whether the police had seized any articles from the house of Sk. Serif Ali on 22nd March, 2012. However, on being shown the seizure list he admitted and identified his signature thereon. He stated that on the instructions of the police he had put his signature on the seizure list. The seizure list has nothing to do with the accused appellant.
38. The 11th Prosecution Witness, Sk. Kazim, denied having put his signature on the seizure list at the time of seizure of articles from the house of Sk. Serif Ali on 22nd March, 2012. On being shown the seizure list this witness admitted and identified his signature. He, however, stated that he had gone to the police station along with Ariful over a dispute and he as well as Ariful put their signature on the seizure list on the instruction of the police. This seizure list also has nothing to do with the accused appellant.
39. The 12th Prosecution Witness, Sk. Maitab Ali, was the witness who, according to the prosecution, was present when the police seized some articles from the house of the accused appellant. In Court, however, PW12 stated that he was not present when the police seized articles from the house of the accused appellant. In cross-examination he denied that he was present on 24th March, 2015 between 2:15/2:45 hours when the police seized one 500 G.B. red colour Samsung external hard disc, one 7" LCD monitor and one DVD player from the possession of the accused appellant from his house at Hosnabad.
40. The 13th Prosecution Witness, Rajesh Chandra Kar, an Assistant Sub-Inspector of Police, who was apparently posted at Kotwali Police Station, Midnapore as an Assistant Sub-Inspector, deposed that he had accompanied Sub-inspector, Sudip Ghosal along with accused Sk. Serif Ali, when a wooden ''piri'' was seized in his presence by preparation of a proper seizure list. The seizure if any, does not involve the accused appellant.
41. The 14th Prosecution Witness, Tarok Nath Sen, a seizure witness, denied his presence at the time of seizure of articles from the house of the accused Sk. Serif Ali. This deponent also deposed in cross-examination that he had put his signature over the seizure list at the police station, at the request of the police.
42. The 15th Prosecution Witness, Sk. Aitab Ali, another seizure witness, in whose presence articles had allegedly been seized from the house of the accused appellant also denied his presence at the time when police seized those articles. He stated that he had put his signature on the seizure list at the police station at the request of the police when he had been there for getting information with regard to distribution of N.V.F. forms. This witness was declared hostile by the prosecution.
43. The 16th Prosecution Witness, Dr. Samar Sinha Das, was the doctor, who had performed the post mortem examination of the dead body of the mother of the de facto complainant. He opined that the death was due to the effect of injuries, ante mortem and homicidal in nature.
44. In cross-examination he stated that it was not absolutely impossible that the nature of injuries, sustained by the deceased might have been caused due to a fall from the staircase. He stated that a lacerated wound is uncommon in the case of fall from the staircase, but this could happen due to the height of the stairs.
45. The 17th Prosecution Witness, Nirath Baran Mukherjee, an Assistant Sub Inspector, who was on table duty at the Kotwali Police Station, deposed that on the date of the incident he had received a written complaint from the de facto complainant, after which he started Kotwali Police Station Case No. 125 of 2012 dated 1st March, 2012 under Sections 302/382/34 of the Indian Penal Code. He identified his endorsement on the written complaint. He stated that he also filled up the formal portion of the FIR in his own handwriting and he identified the formal FIR.
46. The 18th Prosecution Witness, Sujit Ghosal, Sub-Inspector, was the investigating officer who conducted the investigation of the case. Except that this witness claimed that he seized some articles from the residence of the accused appellant in the presence of the accused appellant and witnesses, there is nothing in the evidence of this witness against the accused appellant. As observed above, both the alleged seizure witnesses contradicted his claim, by stating that they were not present at the time of seizure.
47. As observed by the learned Sessions Court, there was no eye-witness to the incident. The conviction of the accused appellant is based on circumstantial evidence. The question is whether the circumstantial evidence in this case was sufficient for conviction of the accused appellant under Section 302 or under Section 382 of the Indian Penal Code.
48. From the evidence of Prosecution Witness Nos. 1 to 7 what is proved is that the dead body of the deceased, was found underneath the staircase in a half inclined position with cut injuries as well as blood. None of the aforesaid witnesses had a clue of how exactly the deceased died.
49. From the evidence of the Prosecution Witness Nos. 1 and 2, it is proved that there had been a theft in the house of the de facto complainant. Several articles had been stolen including a 21 inch Samsung LCD TV, a portable LCD TV, 500 GB Samsung External Hard Disc, gold ornaments, utensils, plumbing fittings from the kitchen and bathroom, a pair of Woodland shoes, mobile phones, ATM card of SBI, Jhargram and cash of Rs. 1,00,000/-.
50. In this appeal, we are neither concerned with the conviction and punishment of Sk. Serif Ali nor with whether Sk. Kazim Ali was in conflict with law and if so, what action ought to have been taken against him. We are only concerned with the conviction and punishment of the accused appellant. The only evidence against the accused appellant is the evidence of the Investigating Officer (PW18), whose evidence as translated by the Sessions Court is as follows :--
"I seized some articles from the possession/house of accused, Sk. Akbar Ali in presence of witnesses and in presence of accused himself by preparing a proper seizure list. This is the original seizure list, prepared by my own hand and it also bears my signature. From the seizure list, it appears that what was allegedly recovered from the house of the accused appellant was one 500 GB red coloured Samsung External Hard Disc, one 7 inch LCD monitor of Super Company with A.C/D.C Adapter and one DVD player of Pioneer Company.
51. In his examination under Section 313, the accused appellant categorically denied that the seizure was made from his residence or in his presence. The two witnesses to the seizure deposed as Prosecution Witness Nos. 12 and 15 respectively. They both stated that they were not present at the time of the seizure and were both declared hostile by the prosecution. Atleast one of the witness stated that he was made to sign the seizure list at the Police Station at the instance of the police.
52. The accused appellant stated that he was forcibly detained and made to sign papers in the police station. In the absence of any cogent independent evidence of any seizure from the residence of the accused appellant, we are constrained to hold that the prosecution failed to prove that the Hard Disc, LCD monitor or the DVD player had been seized from the residence of the accused appellant.
53. The Investigating Officer being the PW 18 deposed that on 18th March, 2012, he had seized a Nokia Mobile Phone which seemed to have been made in China, from the possession of Sk. Kazim Ali by preparing a seizure list. The said Sk. Kazim Ali has been referred to the Juvenile Justice Board.
54. From the evidence of the Investigating Officer it appears that the weapon of offence being a wooden ''piri'' was recovered from a bush on the confession of Sk. Serif Ali. Significantly, there is no evidence of disappearance of any ''wooden piri'' from the place of occurrence. A ''piri'' is a low flat piece of furniture, usually made of wood, which is used as a seat for sitting on the floor. It seems preposterous that housebreakers should carry a wooden ''piri'' to the place of occurrence for using the same as a weapon of offence. In any case, recovery of a wooden ''piri'' on the basis of the statement of Sk. Serif Ali does not establish the guilt of the accused appellant.
55. This deponent, that is the investigating officer, further deposed that he had seized a Micromax Phone, one Sony LED TV, a pair of Woodland Shoes from the house of Sk. Serif Ali in the presence of different witnesses and in the presence of the accused Sk. Serif Ali himself by preparation of a seizure list. The seizure of the aforesaid articles at best substantiate the involvement of Sk. Serif Ali, with whom we are not concerned in this appeal. The seizure has nothing to do with the accused appellant.
56. Circumstantial evidence is evidence, affirmed not by directing testimony of an eye witness to the fact to be proved, but testimony which has a bearing on the fact to be proved. It is evidence of various facts other than the facts in issue which are so associated with the fact in issue, that taken together they form a chain of circumstances leading to an inference of presumption of the principal fact. To put it in a different way circumstantial evidence is merely direct evidence indirectly applied.
57. It is well-settled that when a case rests on circumstantial evidence, such evidence must satisfy certain tests. First, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Before the Court records conviction on the basis of circumstantial evidence, it must satisfy itself that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence. Secondly, those circumstances should definitely and unerringly pointing towards the guilt of the accused and thirdly, 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.
58. In cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may taken the place of legal proof. It is well-settled that suspicions, however, strong cannot taken the place of proof as held by the Supreme Court in
59. It is well-settled that when the conviction is based on circumstantial evidence, the circumstantial evidence relying upon must forge such a chain as would lead to the conclusion that it was the accused and none else who committed the murder. The proposition finds support from the judgement of the Supreme Court in
60. In this case, there is no evidence at all against the accused appellant, on the basis of which the accused appellant could have been convicted of charge under Section 282 of the Indian Penal Code, far less of charge under Section 302 of the Indian Penal Code. Even assuming for the sake of argument that two or three articles, which were missing from the house of the de facto complainant were seized from the residence of the accused appellant, in his presence, and in presence of witnesses, which as observed above, has not been substantiated by cogent evidence, even then, the accused appellant could not have been convicted either of charge under Section 282 or of charge under Section 303 of the Indian Penal Code. The accused appellant may, very well have been the receiver of stolen property.
61. In our view, in the absence of any evidence whatsoever against the accused appellant, the conviction of the accused appellant, who stands on a footing entirely different from the accused Sk. Serif Ali, cannot be sustained.
62. The appeal is allowed.
63. The judgement and order under appeal is set aside only to the extent that the accused appellant has been held guilty of charges under Section 302/34 and 382/34 of the Indian Penal Code and penalized. The sentence imposed on the accused appellant is also set aside. The accused appellant may be set free.
64. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
Sahidullah Munshi, J.
I Agree.
