REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITION
CRIMINAL APPEAL NO.1939 OF 2008
Amitava Banerjee @ Amit
@ Bappa Banerjee
...Appellant
Versus
State of West Bengal ...Respondent
J U D G M E N T
T.S. THAKUR, J.
1. This appeal by special leave arises out of an order
passed by the High Court of Judicature at Calcutta
whereby the conviction of the appellant for offences
punishable under Sections 302, 364 and 201 of the IPC
and the sentence of life imprisonment awarded to him
have been affirmed. Briefly stated the prosecution case is
as under:
2. Asit Kumar Mondal, Sub-Inspector of Police was at
the relevant point of time attached to Jhargram Court. His
family comprised his wife and a son named Snehasish
Mondal @ Babusona aged about 10/12 years residing at
`B' Block of Thana Quarters' Complex at Ghoradhara,
Jhargram. In the same complex, lived the appellant,
whose father was also working as a Sub-Inspector of
Police and was at the relevant time posted at Beliabera
Police Station. According to the prosecution, the deceased
Snehasish Mondal was friendly with the younger brother
of the appellant and would usually play cricket with him in
a park situate behind the residential quarters and by the
side of the BDO office. A few days before the incident in
question, the deceased is alleged to have come to the
house of the appellant to collect a cricket bat and ball for
play in the park mentioned above and seen the appellant
in a compromising position with Mangala Deloi, PW10
aged about 20 years who was then working as a maid-
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servant in the house of the appellant. The prosecution
case is that the appellant apprehended loss of face in the
locality on account of a possible disclosure of his
involvement with his maid-servant which according to the
prosecution was the motive for silencing the innocent boy
for all times by killing him in cold blood.
3. On 12th of July, 1998, the deceased as usual went to
play in the park but did not return home by the evening.
The parents of the deceased panicked and started a
search for the deceased which went fruitless. Asit Mondal,
PW1 then lodged a missing report at the Jhargram Police
Station who announced the disappearance of the boy in
the locality on the public address system. According to
Asit Mondal, in the course of the search for the missing
boy he came to know that he was seen talking to the
appellant and then going with him towards Kanchan Oil
Mill on the latter's bicycle. When the appellant returned to
his quarter at 9.00 p.m. without his bicycle he was
questioned about the whereabouts of the deceased and
the fact that he was seen taking the boy towards the
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Kanchan Oil Mill but the appellant denied the same. About
the bicycle the appellant stated that he had handed the
same over to one of his friends.
4. On July 13, 1998, Jhargram Police Station received
information about a freshly dug ditch filled up with a heap
of loose earth in Sitaldihi jungle close to Kanchan Oil Mill.
The police on receipt of this information rushed to the
spot and found that a freshly dug ditch had indeed been
filled up with loose earth and that a black coloured Hero
bicycle was parked against one of the trees at some
distance. The Executive Magistrate of the area was
summoned to the spot by the police and the earth heaped
over the ditch got removed only to discover the dead body
of the deceased Snehasish Mondal with his hands tied at
the back and a handkerchief stuffed into its mouth.
Recovery of the dead body of the deceased and conduct of
an inquest by the Executive Magistrate led to the
registration of FIR No.91 of 1998 for the commission of an
offence under Sections 364, 302 and 201 of the IPC on
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the basis of a written complaint made to the above effect
by Asit Kumar Mondal father of the deceased Babusona.
5. The police seized the bicycle from Sitaldihi jungle
besides a cap which the appellant was allegedly wearing
on the date of the incident. Post-mortem examination
conducted by Dr. Rajat Kanti Satpati, PW 15 proved that
the deceased had died as a result of asphyxia because of
throattling/strangulation which was ante-mortem and
homicidal in nature. In the course of investigation the
police also seized a spade which the appellant had
allegedly borrowed from Jadunath Das, PW 6 and which
the appellant had on the fateful day left with Rukshmini
Yadav, PW 11. Statements of witnesses who had last seen
the deceased, in the company of the appellant, in the park
and later going towards the Kanchan Oil Mill and inside
the Sitaldihi jungle were also recorded. Suffice it to say
that on the completion of the investigation a charge-sheet
was filed against the appellant before the Court of SDJM
Jhargram who committed the case to the Court of
Sessions at Midnapore. The Sessions Judge in turn
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transferred the same to the 5th Additional Sessions Judge
Midnapore, for trial and disposal.
6. At the trial the prosecution examined as many as 22
witnesses in support of its case including Asit Mondal,
PW1 and his wife Smt. Chhanda Mondal, PW 14, who
supported the prosecution case. Gurupada Mondal, PW 2,
who reported the presence of the bicycle and the ditch in
Sitaldihi jungle to the police, Sunil Deloi, PW 5 who had
seen the appellant coming out of the Sitaldihi jungle on
13th July, 1998 at 5.30-6.00 a.m., Jadunath Das, PW 6
who deposed about the borrowing of the spade by the
appellant on 12th July, 1998 in the morning, Rajib Roy
Chowdhary, PW 7, and Jiten Sen, PW 8 both of whom saw
Babusona talking to the appellant in the park and then
going towards Sitaldihi jungle on the latter's bicycle.
Tarapada Mahato, PW 9 who saw the appellant and the
deceased inside the Sitaldihi jungle on 12th July, 1998 in
the evening, Rukshmini Yadav, PW 11 who testified to the
appellant leaving a spade at her house on 12th July, 1998
in the evening, Tarun Banerjee, PW13 who saw the bicycle
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in the Sitaldihi jungle and identified it as that of the
appellant. Dr. Rajat Kanti Satpati, PW 15 who conducted
the post-mortem examination, Dipak Kumar Sarkar, PW-
16, Executive Magistrate, who conducted the inquest,
Tapan Kumar Chatterjee, PW17 who made an entry in the
General Diary under S.No.463 regarding the presence of a
cycle and the ditch in the jungle and Swapan Kumar
Mohanti, PW20, Judicial Magistrate, who conducted the
test identification parade were also examined by the
prosecution apart from the Investigating Officer Shri
Kushal Mitra, PW22.
7. On a thorough and careful appreciation of the
evidence adduced before it the Trial Court concluded that
the prosecution had failed to establish the motive for the
murder of the deceased as alleged by it. The Court held
that Mangala Deloi, PW10 who was the star witness of the
prosecution to prove the alleged motive had not
supported the prosecution case in the Court. The witness
had no doubt been examined even under Section 164 of
Cr.P.C. where she had supported the theory underlying
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the alleged motive but that version had been disowned by
her at the trial. Since, however, the statement of the
witness under Section 164 Cr.P.C. did not constitute
substantive evidence the same could not be relied upon
for convicting the appellant even when the witness had
admitted that she had made a statement before the
Magistrate. The Court all the same held that the
circumstantial evidence available on record was so strong
and so unerringly pointed towards the guilt of the
appellant that the absence of a motive did not make much
of a difference. In paras 68 and 69 of the judgment the
Trial Court summarised the incriminating circumstances
that were in its opinion firmly established and that formed
a complete chain proving the guilt of the appellant. The
Court observed:
"68. In the present case, accused Amitava was seen on
12.7.98 at about 5.30 pm at Ghoradhara park,
Jhargram to take deceased Babusona therefrom by his
cycle towards Kanchan Oil Mill. He was again seen at
Sitaldihi jungle with Babusona and the cycle. On the
same date he took the spade from the house of
Jadunath. At that time he covered the handle of the
spade with a piece of newspaper and tied the spade
with the cycle with the help of Sutli. He kept the spade
at the garden of Rukmini Yadab, PW11 at about 7/7.30
pm on the same day. He was seen in that night without
8
his cycle. On the following day i.e. On 13.7.98 at the
very morning he was seen coming out from Sitaldihi
jungle without his cycle in a suspicious and frightening
manner as discussed earlier. At the material point of
time when the accused went to Sitaldihi jungle on
12.7.98 with deceased Babusona, the accused was
wearing a chocolate coloured full pant white half genji
and one reddish cap and deceased Babusona was
wearing yellow-orange coloured shirt, blue half pant
and slipper. At the time when the accused was found
coming out of Sitaldihi jungle in the morning of 13.7.98,
he was seen wearing a chocolate coloured full pant and
white genji, but without the cap. The accused is
identified by several witnesses. His pant and genji were
also seized by the police from his house, which are also
identified by the witnesses, who saw him on 12.7.98 at
the afternoon and also in the morning of 13.7.98. On
13.7.98 as per information of the witnesses police had
been to Sitaldihi jungle and there discovered the place
where the dead body of Babusona was kept under the
earth. The S.D.P.O, S.D.O and the Id. Executive
Magistrate were called along with a photographer. In
their presence the dead body was recovered from the
ditch after unearthing the same. The cycle of Amitava,
two pieces of newspaper and hawai chappal of
Babusona were recovered nearby the said ditch. Those
are produced in court and identified the witnesses. The
dead body was identified by PW1, father of deceased
Babusona, as that of his son-Babusona. He lodged the
FIR at that spot. Inquest was held over the dead body
of Babusona in presence of the witnesses - both by the
police and also by the Executive Magistrate. The hands
and legs of deceased Babusona were found to be tied
with electric wire and his mouth was gagged with
handkerchief. Those articles were seized and produced
in court and duly identified by the seizure witnesses.
Thereafter the dead body of Babusona was sent to
Jhargram S.D. Hospital where post mortem examination
was held by the medical Board, including the medical
officer, PW15. The post mortem examination was held
at 6.45 pm on 13.7.98 and the doctors' opinion is that
the death of Babusona took place about 24 hours back
due to throttling/strangulation, which was homicidal in
nature. After recording the statements of several
witnesses, I.O. (PW22) arrested the accused and as
shown by the accused the spade was recovered from
the premises of Rukmini Yadab (PW11). That spade is
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produced in court and identified both Jadunath, PW 6,
and Rukmini, PW 11, and that spade is produced in
court and identified by both Jadunath and Rukmini.
Subsequently, on 15.7.98 as per the statement of the
accused his reddish cap and sandle were recovered
from the bush within Sitaldihi jungle in presence of the
witnesses. Those articles are produced in court and
identified by the seizure witnesses. The statement of
the accused leading to such discovery is also brought
into evidence. The statements of witnesses, Rajib, Jiten,
Mongala, Rukmini and Jadunath were recorded by the
Ld. J.M. Jhargram u/section 164 Cr.P.C. Excepting
Mongala, all other witnesses have given substantive
evidence in court in support of their earlier statement
u/section 164 Cr.P.C.
69.Thus, on the basis of the aforesaid evidence, as
discussed earlier, the chain of circumstantial
evidence is built up and it is complete one. The
standard of proof required to hold the accused guilty
on circumstantial evidence is quite sufficient to
establish the chain of circumstances. In my
considered view, it is so complete leaving no
reasonable ground for conclusion consistent with the
innocence of the accused. The circumstances
brought before the court is quite sufficient to
conclude by holding the guilt of the accused. In the
present case, there is no escape from the conclusion
that within all human probability the crime was
committed by the accused and none else."
8. On the above findings the Trial Court found the
appellant guilty of offences punishable under Section 302
of the IPC and sentenced him to imprisonment for life and
a fine of Rs.2,000/- in default whereof the appellant was
directed to undergo a further imprisonment for two
months. No separate sentence was, however, awarded to
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the appellant for the offences punishable under Sections
364 and 201 of the IPC though the said offence held
proved.
9. Aggrieved by his conviction and sentence the
appellant preferred an appeal before the High Court of
Judicature at Calcutta. The High Court has by the
judgment and order impugned in this appeal affirmed the
conviction and sentence awarded to the appellant and
dismissed the appeal. The High Court has while doing so
re-appraised the evidence on record held that the
circumstances proved at the trial were explainable on no
other hypothesis except the guilt of the appellant. The
High Court observed:
"If we assemble the above stated facts, evidence and
circumstances and consider the same in proper
perspective the circumstances and the evidence clearly
lead to us to the only possible hypothesis that the
appellant was the only person who was responsible for
the murder of Babusona. There was no evidence before
the Court to prove that deceased was found in the
company of any other person on 12.7.98 before his
murder. The evidence and circumstances clinchingly
establishes that the appellant took away Babusona from
Ghoradhara park on his cycle and Babusona was last
seen by PW9 in the company of appellant in the
Sitaldihi jungle and thereafter he did not return and his
dead body was recovered on 13.7.98. Besides the
appellant, no other person had the custody of the
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deceased before his murder and the entire
circumstances establishes and proves that the appellant
was the murderer."
10. The present appeal by special leave assails the
correctness of the view taken by the courts below. We
have heard at considerable length Shri Ranjan Mukherjee
learned counsel for the appellant and Shri Pradeep Ghosh,
learned senior counsel for the respondent both of whom
were at pains to take us through the evidence adduced at
the trial.
11. We may at the threshold say that this Court does not
ordinarily embark upon a re-appraisal of the evidence
where the courts below have concurrently taken a view on
facts one way or the other. In a long line of decisions this
Court has held that an appeal by special leave is not a
regular appeal and that this Court would not re-appreciate
evidence except to find out whether there has been any
illegality, material irregularity or miscarriage of justice
merely because a different view is possible on the
evidence adduced at the trial is no ground for the Court to
1
upset the opinion of the Courts below, so long as the
same is a reasonably possible view. Perversity in the
findings, illegality or irregularity in the Trial, causing
injustice, or failure to take into consideration an important
piece of evidence have been identified as some of the
situation in which this Court would re-appraise the
evidence adduced at the trial and not otherwise. (See:
Radha Mohan Singh alias Lal Saheb and Ors. v. State
of U.P. (AIR 2006 SC 951), Bhagwan Singh v. State of
Rajasthan (AIR 1976 SC 985), Suresh Kumar Jain v.
Shanti Swarup Jain and Ors. (AIR 1997 SC 2291) and
Kirpal Singh v. State of Utter Pradesh (AIR 1965 SC
712).
12. It is our task now to examine whether the judgment
under appeal suffers from any one or more of the above
infirmities, having regard to the quality of the evidence
adduced at the trial.
13. We may with that object in view refer to the essence
of the depositions of the witnesses examined at the trial.
In his deposition Asit Kumar Mondal, PW1, stated that he
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was residing with his wife and only son Snehasish Mondal
in `B' Block of the Thana Quarters Complex at
Ghoradhara, Jhargram. Amit Banerjee resided with his
wife and their three sons in `A' Block opposite to Block `B'
in which the witness resided. On 12th of July, 1998, the
deceased had gone to play in Ghoradhara park situate in
front of BDO office but did not return home till evening.
He was, therefore, asked by his wife, PW14 to search for
their son. In the course of the search he came to know
from one Rajib Roy Chowdhury, PW7 also a resident of the
same Thana Quarters Complex that he had seen
Babusona sitting in the park at about 5.00-5.30 p.m. and
later seen him going with the appellant on his bicycle
toward Kanchan Oil Mill following the western road
touching the said park. The witness also deposed about
the missing report lodged by him in Jhargram Police
Station marked Ex.13 comprising G.D. Entry No.438 dated
12th July, 1998. The G.D. Entry gave the description of the
missing boy and the clothes that he was wearing at the
time of his disappearance.
1
14. Chhanda Mondal, PW 14, who happened to be the
mother of the deceased, has in her deposition stated that
at about 2 p.m. on 12th July, 1998 Babusona, the
deceased expressed his desire to go out for bringing two
parrots promised to him by the appellant. At the instance
of the mother, the deceased instead went for his drawing
classes from where he returned at about 4.45 p.m. Soon
thereafter and following a signal from the appellant he
went up to the roof of the flat occupied by the appellant
where the later was standing. Sometime later the
appellant and Babusona were both seen by the witness
going towards the nearby park. The appellant was wearing
a cap on his head, one white ganjee and a chocolate
coloured full pant.
15. Rajib Roy Choudhury, PW 7, deposed that he had
seen Babusona sitting on a Bench at about 5.00-5.30 p.m.
on 12th July, 1998 when the appellant came there, called
out to Babusona and took him away on his bicycle by
making him sit on the front rod of the cycle. The witness
admitted that he was examined under Section 164 of the
1
Cr.P.C. which statement was exhibited as Ext.7/1. Also
relevant at this stage is the deposition of Jitin Sen, PW 8,
who testified that he had seen Babusona at the
Ghoradhara Park when the appellant came there called
the deceased and took him away on his bicycle. The
deceased and also the appellant were, according to the
witness, well known to him as both of them were sports
lovers.
16. Tarapade Mahato, PW9, who was an employee of the
Kanchan Oil Mill and a resident of village Kalinagar, in his
deposition stated that on 12th July, 1998 at about 6.00-
6.30 p.m. he was returning from his duty from Kanchan
Oil Mill following the usual path he noticed a bicycle
standing with the support of a tree inside the Sitaldihi
jungle. He also noticed two boys one about 10-11 years
and another 18-19 years standing at a distance of about
10/12 cubits from the said bicycle. The witness further
stated that the boys on noticing him proceeded further
inside the jungle holding each other's hands. On the
following day i.e. 13th July, 1998, he came to know about
1
the recovery of a dead body from a ditch inside Sitaldihi
jungle. He at once rushed to the place and saw the dead
body of a boy aged 10/12 years lying in the ditch. He
recollected that it was the same boy whom he had seen
on the previous day. Witness further deposed that he
identified the 18-19 years boy as the one whom he had
seen on 12th July, 1998 in the Sitaldihi jungle in the test
identification parade.
17. The prosecution has also placed reliance upon the
deposition of Jadunath Das, PW 6, who also happened to
be one of the residents of the police complex and knew
the appellant and the deceased. According to this witness
on 12th July, 1998 which happened to be a Sunday, the
appellant called him at about 10.30 in the morning and
asked for the spade which the witness owned as the
former wanted to plant flowers. The witness further stated
that the appellant took the spade and wrapped its wooden
part with a piece of newspaper and `Sutli' (jute string) and
carried the spade with him tied to his bicycle. The spade
was not, however, returned by the appellant to him. The
1
witness identified the spade seized by the police and
marked Ex.11 to be the one which the appellant had
borrowed from him on the date mentioned above.
18. Statement of Rukshmini Yadav, PW11 also bears
relevance to the spade referred to by Jadunath Das, PW6.
According to this witness, her children also take part in
different sports. The appellant was according to this
witness well acquainted to her and others in the locality.
The witness stated that on 12th July at about 7.00-7.30
p.m. the appellant came to her house and called for her
and kept one spade in the garden stating that he would
take the same back on the following morning. The witness
further stated that on 13th July, 1998 at about 9.00-9.30
p.m. the appellant accompanied by the police came to her
house and the spade that was left by him was seized at
his instance. A seizure memo Ex.10 was also prepared on
which the witness had affixed her signature.
19. Aswini Deloi, PW 12 was examined by the
prosecution to prove that he had reported the presence of
a graveyard and a bicycle in the Sitaldihi jungle, and seen
1
the appellant coming out of the Sitaldihi jungle on the 13th
July, 1998 early in the morning. At the trial this witness
has partly supported the prosecution. He has stated that
about 2= years ago he had noticed one bicycle and some
newspapers lying near graveyard but denied having
reported the matter to the local police along with
Gurupada Mondal, PW 2. He also denied having seen the
appellant coming out of the Sitaldihi jungle in the morning
of 13th July, 1998. The witness was declared hostile and
was cross-examined. He was confronted with the
statement made before the police which was denied. The
refusal of the witness to support the prosecution case has
not made any material difference having regard to the
fact that Gurupada Mondal, PW2 has supported the
prosecution and stated in his deposition that a black
colour bicycle and the ditch which looked like a fresh
graveyard and a pair of chappal lying nearby besides a
newspaper was noticed by him inside the jungle and
reported by him and Aswini Deloi, PW 12 to the police.
1
20. Tarun Banerjee, PW13 was occupying the ground
floor flat in the `B' Block of the complex and was familiar
with the appellant as also the deceased-Babusona.
According to his deposition on 12th July, 1998 when he
returned home he learnt from his wife that Babusona was
missing. He rushed to the house of Babusona's father and
asked him whether a report regarding missing had been
lodged with the police. Till mid-night Babusona could not
be traced despite efforts made by police and a public
announcement made on a loudspeaker. On the following
day he noticed a gathering of people including police
personnel on the Sitaldihi jungle. Asit Kumar Mondal, PW1
was also present on the spot and was weeping. A bicycle
standing nearby was also seen by the witness which
belonged to the appellant. He recognised the bicycle, as
he too made use of it occasionally. He is also a witness to
the seizure of the clothes which the appellant was wearing
on the fateful day. Although the witness has been cross-
examined extensively yet nothing has been extracted
from him that could shake his credibility. In his cross-
examination the witness has stated that the appellant had
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on 12th July, 1998 at about 9.00/10.00 p.m. told him that
his bicycle had been taken by one of his friends but he
failed to disclose the name of his friend and said that the
friend was simply known to him by name.
21. Dr. Rajat Kanti Satpati, PW15 conducted the post-
mortem on the dead body of the deceased and found the
following injuries:
"External Injuries:
(1) Homatoma 1" x 1" over the occipital region of the
scalp and =" x =" on the front and back of right
pinna.
(2) Scratch mark surrounding both the wrist joint.
(3) Abrasion on buccal surface on upper lip.
(4) Continuous horizontal ligature mark around the
lower part of neck.
(5) Old hemorrhagic mark both upper and lower jaw.
(6) Eccymosis 10" x 6" upper part of back of chest and
eccymosis 8" x 6" lower part of back and also
eccymosis both of the axilla and noted. On section
of the neck below ligature no perchmentization in
the subcantanus tissues. Haemorrhage is noted.
On further dissection caretidartery intinct both sides
intact. Mussels platysma mark and lacerated left laterally
and haemorrhage in and around injuries. Fracture of the
hyoid bone on the left side and haemorrhage around
fracture hyoid which is resist to washing. Stomach healthy
contains full particles.
In our opinion of death is asphyxia as a result of
throattling/strangulation which is antemortem and
homicidal in nature."
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22. The witness further stated that injury no.4 could be
caused due to tying of the neck with a substance like
`Sutli'. According to the witness the death of the deceased
had occurred approximately 24 hrs. prior to the post-
mortem examination which was conducted at 6.45 p.m.
on 13th July, 1998.
23. Deepak Kumar Sarkar, PW16 is a witness to the
recovery of the dead body of deceased Babusona from the
ditch in the jungle and the inquest that followed.
24. Tapan Kumar Chatterjee, PW17 and Swapan Kumar
Pal, PW18 are police witnesses. While the former has
proved the GD No.438 dated 12th July, 1998 lodged by
Asit Kumar Mondal regarding the missing report of his son
Babusona, the latter is a witness to the seizure of the
bicycle and the recovery of the dead-body from the ditch
inside the Sitaldihi jungle. Dilip Bhattacharyya, PW 19,
has scribed the first information report which he wrote
under the instruction of the first informant, Asit Kumar
Mondal and which has been marked Ext.1. In cross-
examination the witness stated that as soon as the dead-
2
body was identified by the father of the deceased the
officer-in-charge instructed him to write down the FIR and
he accordingly wrote the FIR as per the narrative given by
Asit Kumar Mondal, PW1.
25. Swapan Kumar Mahanti, PW20, Judicial Magistrate,
recorded the statement of Rajib Roy Chowdhury, PW 7
and Jiten Sen, PW8 under Section 164 of the Cr.P.C. He
also recorded the statement of Jadunath Das, PW6 and
Rukshmini Yadav which was marked as Ext.11. Statement
of Tarapada Mahato PW9 is also recorded by the witness.
The Magistrate also testified the holding of a test
identification parade on 6th August, 1998 as per the orders
of the Ld. Sub-Divisional Judicial Magistrate, Jhargram. In
his cross-examination the witness stated that he has
administered oath to the witnesses for the statement
recorded by him but the same is not recorded in the
order-sheet or the statement. There was no serious
challenge to the test identification parade in the cross-
examination except that undertrial prisoners are produced
by the Sub-Jailor and were mixed with the suspect. The
2
particulars of the cases in which the undertrial prisoners
were in custody were not, however, recorded in the
proceedings. Tapas Giri, PW21 took the photographs on
the spot as per the instructions of police while Kushal
Mitra, PW22 is the Investigating Officer who in his
deposition has proved the various steps that were taken in
the course of investigation including the seizures made,
the statement of the witnesses recorded, the conduct of
the inquest, the post-mortem and the test identification
parade. The appellant led no evidence in his defence.
26. Mr. Mukherjee at the very outset argued that in a
case based on circumstantial evidence proof of motive of
the commission of offence of murder is extremely
important. He submitted that prosecution had in the
present case failed to prove the motive alleged by it which
would break the chain of circumstances and resultantly
benefit the appellant. He urged that even when Mangala
Deloi, PW10 had supported the prosecution version
regarding the alleged motive in her statements under
Sections 161 and 164 of the Cr.P.C., the same did not
2
constitute substantive evidence in the case and could not,
therefore, be made use of for holding the motive to have
been proved.
27. Motive for the commission of an offence no doubt
assumes greater importance in cases resting on
circumstantial evidence than those in which direct
evidence regarding commission of the offence is available.
And yet failure to prove motive in cases resting on
circumstantial evidence is not fatal by itself. All that the
absence of motive for the commission of the offence
results in is that the court shall have to be more careful
and circumspect in scrutinizing the evidence to ensure
that suspicion does not take the place of proof while
finding the accused guilty. Absence of motive in a case
depending entirely on circumstantial evidence is a factor
that shall no doubt weigh in favour of the accused, but
what the Courts need to remember is that motive is a
matter which is primarily known to the accused and which
the prosecution may at times find difficult to explain or
establish by substantive evidence. Human nature being
2
what it is, it is often difficult to fathom the real motivation
behind the commission of a crime. And yet experience
about human nature, human conduct and the frailties of
human mind has shown that inducements to crime have
veered around to what Wills has in his book
"Circumstantial Evidence" said:
"The common inducements to crime are the desires
of revenging some real or fancied wrong; of getting rid
of rival or an obnoxious connection; of escaping from
the pressure of pecuniary or other obligation or burden
of obtaining plunder or other coveted object; or
preserving reputation, either that of general character
or the conventional reputation or profession or sex; or
gratifying some other selfish or malignant passion."
28. The legal position as to the significance of motive
and effect of its absence in a given case is fairly well-
settled by the decisions of this Court to which we need not
refer in detail to avoid burdening this judgment
unnecessarily. See Dhananjoy Chatterjee alias Dhana
v. State of W.B. 1994 (2) SCC 220, Surinder Pal Jain
v. Delhi Administration, 1993 Suppl. (3) SCC 91,
Tarseem Kumar v. Delhi Administration, 1994 Suppl.
(3) SCC 367, Jagdish v. State of M.P., 2009 (12) Scale
2
580, Mulakh Raj and Ors. v. Satish Kumar and Ors.
1992 (3) SCC 43.
29. It was next argued by Mr. Mukherjee that the
evidence adduced at the trial does not form a complete
chain and that apart from the improbability of the
prosecution version there were certain gaping holes in the
prosecution story which would render it unsafe for any
Court to pronounce the appellant guilty. He urged that in
a case resting entirely on circumstantial evidence it was
necessary for the prosecution to establish the
circumstances that may be said to be incriminating
against the accused but the said circumstances ought to
be consistent only with the guilt of the accused in order
that the Court may declare him guilty. Both these
requirements had, according to Mr. Mukherjee, failed in
the instant case entitling the appellant to an acquittal.
30. Mr. Ghosh, on the other hand, argued that the
circumstances relied upon by the prosecution had not only
been firmly established but the same form a complete
chain that leaves no room for any conclusion other than
2
the guilt of the appellant. He referred to the findings
recorded by the two Courts below in this regard and
submitted that the appellant had not been able to either
question the evidence that proved the circumstances or
the inference that inevitably flowed from the same.
31. The tests applicable to cases based on circumstantial
evidence are fairly well-known. The decisions of this Court
recognising and applying those tests to varied fact
situation are a legion. Reference to only some of the said
decisions should, however, suffice. In Sharad
Birdhichand Sarda v. State of Maharashtra, 1984 (4)
SCC 116 this Court declared that a case based on
circumstantial evidence must satisfy, the following tests:
"(1) The circumstances from which the conclusion of guilt
is to be drawn should be fully established.
(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
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(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."
32. To the same effect are the decisions of this Court in
Tanviben Pankaj Kumar Divetia v. State of Gujarat
1997(7) SCC 156, State (NCT of Delhi) v. Navjot
Sandhu @ Afsan Guru 2005 (11) SCC 600, Vikram
Singh & Ors. v. State of Punjab, 2010 (3) SCC 56,
Aftab Ahmad Ansari v. State of Uttaranchal, 2010 (2)
SCC 583. In Aftab Ahmad Ansari (supra) this Court
observed:
"In cases where 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. Each fact must be proved individually and
only thereafter the court should consider the total
cumulative effect of all the proved facts, each one of
which reinforces the conclusion of the guilt. If the
combined effect of all the facts taken together is
conclusive in establishing the guilt of the accused, the
conviction would be justified even though it may be that
one or more of these facts, by itself/themselves, is/are
not decisive. The circumstances proved should be such
as to exclude every hypothesis except the one sought
to be proved. But this does not mean that before the
prosecution case succeeds in a case of circumstantial
evidence alone, it must exclude each and every
hypothesis suggested by the accused, howsoever
extravagant and fanciful it might be."
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33. What, therefore, needs to be seen is whether the
prosecution has established the incriminating
circumstances upon which it places reliance and whether
those circumstances constitute a chain so complete as not
to leave any reasonable ground for the appellant to be
found innocent. Both the Courts below have, as seen
earlier, appreciated the evidence adduced in the case and
enumerated the circumstances that have been according
to them established by the prosecution. Having been taken
through the evidence adduced at the trial to which we
have referred in some detail in the earlier part of this
judgment, we have no manner of doubt that the
prosecution has satisfactorily and firmly established the
following circumstances on the basis of the evidence
adduced by it:
(1) That at about 2 p.m. on 12th July, 1998
Babusona, the deceased expressed his desire
to go out for bringing two parrots promised to
him by the appellant. At the instance of his
3
mother, Chhanda Mondal, PW14, the deceased
was instead sent for his drawing classes from
where he returned at about 4.45 p.m. Soon
thereafter and following a signal from the
appellant he went up to the roof of the flat
occupied by the appellant where the latter was
standing. Sometime later the appellant and
Babusona were both seen by Chhanda Mondal,
PW14 going towards the nearby park. The
witness again noticed the appellant proceeding
on his bicycle wearing a cap on his head, one
white ganjee and a chocolate coloured full
pant.
(2) The deceased Babusona did not return home
from the park till evening, whereupon the parents
of the deceased started a search for him.
Deposition of Asit Kumar Mondal, PW1 father and
Smt. Chhanda Mondal, PW 14, mother of the
deceased respectively clearly establish this fact.
3
(3) When the search undertaken by the parents
proved fruitless, Asit Kumar Mondal lodged a
missing report at the Jhargram Police Station,
which report was registered under General Diary
No. 438 dated 12th July, 1998 at 6.55 p.m. marked
as Ext. 13 at the trial. The Jhargram Police Station
on receipt of the report made an announcement
regarding the disappearance of Babusona with the
help of loudspeaker in the area. The deposition of
Asit Kumar Mondal, PW1 and Chhanda Mondal,
PW14 clearly establish this circumstance also.
(4) At about 8.30 p.m. on 12th July, 1998 the
parents of the deceased Asit Kumar Mondal, PW 1
and Chhanda Mondal, PW14 saw the appellant
entering his (appellant's) residential quarter from
the rear door of the quarter. When PW 1 asked him
about the whereabouts of the deceased the
appellant initially hesitated and showed his
ignorance regarding the whereabouts of Babusona.
The deposition of Asit Kumar Mondal, PW 1
3
establishes that at that time the appellant was
without any chappal on his feet and the cycle that
he owned.
(5) The deceased-Babusona was last seen by
Rajib Roy Chowdhury, PW 7 and Jiten Sen, PW8 in
the park talking to the appellant and shortly
thereafter going with the appellant on his bicycle
towards the Kanchan Oil Mill which is in the same
direction as of Sitaldihi jungle. The deposition of the
said two witnesses has firmly established this fact
especially because nothing has been brought out in
their cross-examination which may discredit their
version or render them unreliable.
(6) The deceased and the appellant were seen in
the Sitaldihi jungle by Tarapada Mahato, PW9 while
the said witness was returning home from Kanchan
Oil Mill. On seeing the witness the appellant and the
deceased proceeded deeper into the Sitaldihi
jungle.
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(7) On the following day i.e. 13th July, 1998
Jhargram Police Station received information about
a newly dug ditch inside the Sitaldihi jungle at
some distance from the residential complex where
the appellant and the deceased used to live. This
information was recorded in Diary No.463 dated
13th July, 1998 marked as Ext.17. The depositions
of Gurupada Mondal, PW2 established this fact. On
receipt of this information the police rushed to the
place inside the Sitaldihi jungle and found a newly
dug ditch covered with loose earth. Executive
Magistrate, Shri Dipak Kumar Sarkar, PW 16 was
also sent for besides a photographer named Tapas
Giri, PW 21. In their presence and the presence of
other witnesses the ditch was dug up and the body
of the deceased recovered from the same. The
deposition of Asit Kumar Mondal, PW 1, Gurupada
Mondal, PW2, Kushal Mitra, PW 22, Sunil Deloi,
PW5, Tarun Banerjee, PW13, Dipak Kumar Sarkar,
PW16, Swapan Kumar Pal, PW18 and Dilip
Bhattacharyya, PW19 firmly establish this fact.
3
(8) At some distance from the place where the
dead body was buried, the police found a pair of
hawai chappal, two leaves of Ananda Bazar Patrika
Newspaper apart from the cycle that was parked
against a tree. Asit Kumar Mondal recognized the
hawai chappal to be that of his son-Babusona and
the cycle to be that of the appellant. The cycle was
also recognised by Tarun Banrejee, PW13 to be that
of the appellant.
(9) Dead body of the Babusona was lying on his
back with hands tied behind. The legs were also
tied with the help of electric wire. One handkerchief
was also stuffed inside the mouth of the deceased
and `Sutli' (jute string) was found around the neck
of the deceased. The depositions of Asit Kumar
Mondal, PW1, Gurupada Mondal, PW2, Dilip
Namata, PW3, Sunil Deloi, PW5, and Kushal Mitra,
PW22 establish this fact apart from establishing
that there were marks of injuries on different parts
of the body including the head.
3
(10) The deceased was found wearing blue
coloured half pant and yellow orange mixed half
shirt. These were the very same clothes the
deceased was wearing when he was last seen alive.
Depositions of Asit Kumar Mondal, PW1, Chhanda
Mondal, PW14, Jiten Sen, PW8, Tarapada Mahato,
PW9 and Kushal Mitra, PW22 establish this fact.
(11) The appellant was identified by the said
Tarapada Mahato, PW9 in T.I. Parade conducted on
6th August, 1998, by Swapan Kumar Mahanti,
Judicial Magistrate, examined at the trial as PW20,
as the same boy whom he had seen inside the
Sitaldihi jungle along with the deceased at about
6.00/6.30 p.m. on 12th July, 1998.
(12) From the Sitaldihi jungle a cap which the
appellant was wearing on the fateful day was also
recovered in the presence of Gurupada Mondal,
PW2 and Dilip Namata, PW3.
3
(13) Apart from leaves of Anand Bazar Patrika, the
`Sutli' found tied around the neck of the deceased
was also seized by the police along with the electric
wire marked M.O. Ext.XIII. Depositions of Asit
Kumar Mondal, PW1, Dilip Namata, PW3, Sunil
Delio PW5, and Kushal Mitra, PW22 establish the
fact.
(14) A spade that was dropped by the appellant in
the evening of the 12th July, 1998 at the house of
Rukshmini Yadav, PW11 telling the said witness
that he would collect it the following day was also
seized by the police at the instance of the
appellant.
(15) The spade had been taken by the appellant on
the morning of 12th July, 1998 from Jadunath Das,
PW6, on the pretext of planting some flowers. The
witness also proved that the appellant had wrapped
the wooden part of the spade with newspaper and
tied it with `Sutli' (jute string) and carried the same
on his bicycle.
3
(16) The deposition of Dr. Rajat Kanti Satpati,
PW15 who conducted the post-mortem examination
and opined that the deceased had died within 24
hrs. prior to the post-mortem which supports the
prosecution version that the deceased was done to
death around 6.30 or so in the evening on 12th July,
1998. The death was according to this witness
homicidal and asphyxia caused for throttling and
strangulation which fact is also clearly established
by the prosecution. The doctor also found a ligature
mark around the neck of the deceased which could
be caused by the `Sutli'.
(17) The clothes which the appellant was wearing
according to the witnesses Sunil Deloi, PW5, Rajib
Roy Chowdhury, PW7, Jiten Sen, PW8 and Smt.
Chhanda Mondal, PW14 seized by Kushal Mitra,
PW22 in the presence of Asit Kumar Mondal, PW1,
and Tarun Banerjee PW13 during investigation were
duly identified by them in the Court.
3
34. The above circumstances are, in our opinion, not
only established, but they form a complete chain, that
leaves no manner of doubt, that the crime with which the
appellant stood charged was committed by him and no
one else. The deposition of the mother of the deceased,
that Babusona wanted to go to the appellant to fetch two
parrots which the latter had promised, that he did after
returning from the drawing tuition go to the appellant on
getting a signal from him, sets the stage for drawing the
deceased out of the house. He is shortly thereafter seen
talking to the appellant who calls out for him in the park
and carries him away on his bicycle towards Kanchan Oil
Mill which fact has been proved by two witnesses whose
deposition does not suffer from any embellishment or
contradiction. The fact that Babusona and the appellant
were seen together in Sitaldihi jungle around 6.00/6.30
p.m. on 12th July, 1998 is a highly incriminating
circumstance, especially when according to the medical
evidence the time of death of the deceased was also
around the same time. The deceased having been last
seen with the appellant around the time he was killed is a
3
circumstance which together with other circumstances
proved in the case, are explainable only on one hypothesis
that the appellant was guilty of killing the deceased. The
fact that the appellant had borrowed the spade, tide it
with `Sutil' after wrapping the wooden part with the
newspaper is fully established by the statement of
Jadunath Das, PW6. So also the deposit of the spade on
12th July, 1998 in the evening with Rukshmini Yadav,
PW11 stands established beyond any doubt whatsoever.
The presence of the newspaper near the ditch where the
deceased was burried and the recovery of the `Sutli' from
around the neck of the deceased where it had left a
ligature mark are also telling circumstances which are
explainable only on the hypothesis that the appellant was
the author of the crime. Recovery of the cap which
according to the prosecution witnesses was worn by the
appellant on the date of occurrence from Sitaldihi jungle is
also a circumstance that establishes that the appellant
was in the jungle on 12th July, 1998 around the place from
where the dead body was recovered. Similarly, the
recovery of the bicycle which the appellant owned from
4
Sitaldihi jungle, from near the place where the dead body
was burried is not explainable on any hypothesis except
the guilt of the accused-appellant. The fact that the
appellant had late in the evening on 12th July, 1998 left
the spade at the house of Rukshmini Yadav, PW11 and
entered the flat from the rear door without his chappals as
also the fact that when asked where his bicycle was, he
gave a false explanation too are incriminating
circumstances which are important links in the chain of
the circumstances.
35. Mr. Mukherjee's argument that Tarapada Mahato,
PW9 could not have seen the boys standing in Sitaldihi
jungle from inside Kanchan Oil Mill, has in our opinion, no
merit whatsoever. The witness has clearly stated that he
had seen the boys (appellant and the deceased) while he
was going home by the path which he everyday takes for
that purpose. Nowhere has the witness suggested that he
had seen the boys from the precincts of the Mill. So also
the argument that Tarapada Mahato, PW9 was a procured
witness has not impressed us. There is nothing in the
4
cross-examination of this witness that may warrant
rejection of his testimony. The mere fact that the witness
did not volunteer to go to the police to say that the two
boys i.e. the appellant whom he described as a boy aged
18/19 years old and the deceased whom he described as
a boy 10/11 years old, were seen by him together in the
Sitaldihi jungle on 12th July, 1998, would not make the
deposition of this witness suspect. The statement of this
witness was recorded when the police started questioning
the employees of the Mill about the incident. Narration of
what the witness had seen in the course of the
investigation cannot be said to be so highly belated or
afterthought as to cast a doubt about the veracity of the
witness especially when the witness had not seen any
crime being committed. He was simply a witness to a fact
which could independent of other circumstances be a
wholly innocent and innocuous circumstance. The criticism
of the learned counsel against the conduct of the test
identification parade is also without any merit. The fact
that the suspect was kept in a room separate from the
room in which the witness was made to sit before the T.I.
4
parade proceedings were held is much too clear from the
statement of the magistrate who conducted the T.I.
parade to call for any adverse inference. All told the
investigation into the unfortunate incident and the
collection of the evidence has been fair and objective.
One reason for such fairness and objectivity could be the
fact that the deceased and the appellant were both wards
of police officials. There was, therefore, no room for
favouring one over the other. In the totality of the above
circumstances, we see neither any illegality, nor any
miscarriage of justice in the judgments and orders under
appeal to call for our interference.
36. In the result this appeal fails and is hereby
dismissed.
....................................J.
(V.S. SIRPURKAR)
....................................J.
(T.S. THAKUR)
New Delhi
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August 17, 2011
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