Full Judgment Text
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CASE NO.:
Appeal (crl.) 231-234 of 2002
PETITIONER:
Mousam Singha Roy & Ors.
RESPONDENT:
Vs.
State of West Bengal
DATE OF JUDGMENT: 21/08/2003
BENCH:
N Santosh Hegde & B.P. Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE, J.
The appellants in these appeals and one Deepak Rajak
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
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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
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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
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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
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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;
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(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
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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
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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
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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
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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
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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
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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
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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
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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.
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