advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, February 15, 2017

Section 106 of the Indian Evidence Act, 1872 imposes an obligation on the accused to explain as to what happened after they were last seen together =There is one circumstance pertaining to recovery which could not be proved by the prosecution beyond reasonable doubt. The High Court held that recovery of the weapon and the severed cut head of the deceased was not corroborated by PW-7 and PW-14 who were seizure list witnesses. The High Court also held that the recorded version of the statement made by the Appellant which led to recovery was not produced by the prosecution. The High Court found that there was no evidence to show as to which particular article was recovered at whose instance pursuant to the joint statement made by the accused. The High Court proceeded to hold that the circumstances relating to recovery was not proved by the prosecution. The High Court concluded that the Appellant was guilty on the basis of other circumstantial evidence. We are in agreement with the conclusion of the High Court that though the recovery was not proved, the other circumstantial evidence is sufficient to prove the guilt of the accused.

                                                              Non-Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.130 of 2012

DILIP MALLICK
                                                              .... Appellant
                                   Versus
STATE OF WEST BENGAL
                                                                ….Respondent

                               J U D G M E N T


L. NAGESWARA RAO, J.
      This Appeal is filed against the  judgment  dated  22.03.2010  of  the
High Court of Judicature at Calcutta in Criminal Appeal No.326  of  2005  by
which the conviction of the Appellant under Section 302 Indian  Penal  Code,
1860  (hereinafter  referred  to  as  the  ‘IPC’)  and  sentence   of   life
imprisonment by  the  Additional  Sessions  Judge,  Fast  Track  2nd  Court,
Siliguri in Sessions Trial No.03/04 dated 11.02.2005 was confirmed.
A decapitated body  was  found  lying  in  the  Chandmuni  Tea  Estate  near
Himachal Behar Abasan Project at 13:15 hours on 03.02.2004.   On  the  basis
of  a  written  complaint  made  by  Bhupendra  Nath  Singh   (PW-12),   the
investigation commenced and the Appellant along with Hira Routh and  Khogesh
Bansfore were arrested.

During the course of investigation the statements of  accused  persons  were
recorded on 04.02.2004. The accused led the police to Chandmuni  Tea  Estate
area where the cut head was found wrapped with the wearing  apparel  of  the
deceased Sambhu Mallick son of late Pandi Mallick of  Kuli  Para,  Siliguri.
It was found concealed with soil and dry leaves  in  a  garden  drain.   The
body and the head of the deceased were identified by  his  relatives.    The
decapitated body and the cut head were sent for  post-mortem  to  the  North
Bengal Medical College and Hospital  and  the  seized  articles  along  with
wearing apparel of the deceased were sent to the R.F.S.L., Jalpaiguri.   The
weapon used for the commission of offence was also recovered  on  the  basis
of the  statement  and  disclosure  made  by  the  accused  persons  from  a
concealed place on 08.02.2004.

Charges under Sections 302/201/34 IPC were  framed  against  all  the  three
accused persons who pleaded not guilty and claimed to  be  tried.   After  a
detailed consideration of the entire  evidence  on  record,  the  Additional
Sessions Judge, Fast  Track  2nd  Court,  Siliguri  found  all  the  accused
persons guilty of committing an offence under  Section  302/201/34  IPC  and
sentenced them to suffer imprisonment for  life.   The  Trial  Court  relied
upon the testimonies of PW-3, PW-4 and PW-5 who are the  family  members  of
the deceased – Sambhu Mallick in its detailed discussion of  oral  evidence.
 PW-3, the wife of the deceased deposed that her husband was  a  sweeper  by
profession and at about 02:00 pm on 02.02.2004  the  three  accused  persons
and the father of Dilip Mallick came to their house and asked  the  deceased
to accompany them for cleaning a safety tank.  The Appellant took the  cycle
of deceased Sambhu Mallick and carried him on the cycle.   As  the  deceased
did not return home, PW-3 started searching for him in  the  evening.    She
went to the house of the Appellant  and  was  informed  by  the  Appellant’s
father that her husband and the Appellant  went  to  clean  a  safety  tank.
The deceased did not return home that night.  She met the Appellant  on  the
next day morning and enquired about her husband.   The Appellant  asked  her
to go to Matigara Police Station.  PW-3 deposed that she went to the  Police
Station but did not find him there.  On 04.02.2004 she came to know about  a
beheaded body near Chandmuni Tea Estate area. It was identified to  be  that
of her husband by her  mother-in-law  and  sister-in-law  from  his  wearing
apparel.   PW-4  and  PW-5  are  the  sister  and  mother  of  the  deceased
respectively who corroborated the evidence of PW-3.

The post mortem over the beheaded body and the cut  head  was  conducted  by
Dr.  U.B.  Ray  Chaudhary  (PW-10)  at  North  Bengal  Medical  College  and
Hospital.  The post mortem report Exh. 11 which was issued  by  PW-10  shows
that there were eight stab injuries on the chest, stomach  and  other  vital
parts of the body.  It was stated in the post mortem  report  that  proximal
and distal part of the neck fitted snugly with each other and that the  head
and the rest of the body belonged to the same  individual.   PW-14  was  the
witness to the seizure list marked as Exh.17 in respect of  recovery  of  an
iron made Khukri used in the crime.   It  was  approximately  13  inches  in
length with a wooden butt  and  was  recovered  as  per  the  statement  and
information of the accused on 08.02.2004.

The  Trial  Court  held  that  the  chain  of  circumstances   was   clearly
established by clinching evidence which proved that the accused persons  had
committed the offence.  The Appellant and the other accused Hira  Routh  and
Khogesh Bansfore challenged their  conviction  and  sentence  by  filing  an
Appeal before the High Court of Calcutta.  The  counsel  appearing  for  the
State conceded that the evidence against Hira  Routh  and  Khogesh  Bansfore
was not sufficient for their conviction and that she could not  support  the
judgment of the Trial Court in respect of  their  conviction  and  sentence.
The High  Court  re-appreciated  the  evidence  on  record  and  upheld  the
conviction and  sentence  of  the  Appellant  qua  Section  302  IPC.    The
Appellant was acquitted of the charge under Section 201 IPC.  The other  two
accused, Hira  Routh  and  Khogesh  Bansfore,  were  acquitted  of  all  the
charges. The High Court held that there  were  three  circumstances  against
the Appellant. The three circumstances relied upon by  the  High  Court  are
that the accused and the deceased were last seen together, that the  accused
attempted to mislead PW-3 regarding the  whereabouts  of  the  deceased  and
that the  accused  did  not  offer  any  explanation  about  the  events  of
02.02.2004. The High Court held that though the prosecution failed to  prove
the recoveries made pursuant to the joint disclosure  statement,  the  other
circumstances clearly pointed to the guilt of the accused.

After hearing the counsel for both the parties, we have  examined  the  oral
and documentary evidence on record and  we  are  of  the  opinion  that  the
judgment of the High Court does not warrant any  interference.   This  is  a
case  of  circumstantial  evidence.   The  approach   to   be   adopted   in
appreciation of evidence in cases of circumstantial evidence is by now  well
settled.   The  facts  in  cases  of  circumstantial  evidence   should   be
consistent only with  the  hypothesis  of  guilt  of  the  accused  and  the
circumstances should be of conclusive nature  and  tendency.   It  has  been
held by this Court that the chain of evidence should be 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.  (See (1984) 4  SCC  116).   On  the
basis of the above well-settled principles, we proceed  to  examine  whether
the accused can be held to be guilty.

PW-3, PW-4 and PW-5  who  are  the  family  members  of  the  deceased  were
consistent in their testimonies that the  deceased  and  accused  were  last
seen together at around 02:00 pm on 02.02.2004. There is  a  burden  on  the
accused to give an explanation about  what  happened  after  they  left  the
house of the deceased.   No  explanation  was  given  about  the  events  of
02.02.2004 after  they  left  from  the  house  of  the  deceased.   In  the
examination under Section 313 Cr. P.C. the accused denied any  knowledge  of
the crime  and  alleged  false  implication.   Section  106  of  the  Indian
Evidence Act, 1872 imposes an obligation on the accused  to  explain  as  to
what happened after they were last seen together. PW-3 gave evidence to  the
effect that the accused was not  found  in  his  house  in  the  evening  on
02.02.2004 when she went to enquire about her missing  husband.    She  also
stated that when she met the accused on the next day  morning,  the  accused
misled her by saying that she  should  go  to  Matigara  Police  Station  in
search of her husband.   It is clear that  the  accused  who  was  with  the
deceased on the earlier day did not give a proper answer to PW-3  and  asked
her to go to the  Matigara  Police  Station  which  indicates  that  he  was
suggesting  to  PW-3  to  complain  to  the  police.    These   are   strong
circumstances against the accused.

There is one circumstance pertaining to recovery which could not  be  proved
by the prosecution beyond  reasonable  doubt.   The  High  Court  held  that
recovery of the weapon and the severed cut head  of  the  deceased  was  not
corroborated by PW-7 and PW-14 who were seizure list  witnesses.   The  High
Court also held that the recorded version  of  the  statement  made  by  the
Appellant which led to recovery was not produced  by  the  prosecution.  The
High Court found that there was no evidence to show as to  which  particular
article was recovered at whose instance  pursuant  to  the  joint  statement
made  by  the  accused.   The  High  Court  proceeded  to  hold   that   the
circumstances relating to recovery was not proved by the  prosecution.   The
High Court concluded that the Appellant was guilty on  the  basis  of  other
circumstantial evidence.   We are in agreement with the  conclusion  of  the
High  Court  that  though  the  recovery   was   not   proved,   the   other
circumstantial evidence is sufficient to prove the guilt of the accused.

We affirm the judgment of the  High  Court  and  dismiss  the  Appeal.   The
Appellant was enlarged on bail by this Court vide order dated 05.02.2016  on
the ground of his prolonged incarceration for 11 years.  He is  directed  to
surrender before the jail authorities immediately to undergo  the  remaining
part of his sentence, failing which the authorities concerned  are  directed
to proceed in accordance with law.

........................................J
        [S. A. BOBDE]


                    ..……................................J
                                                   [L. NAGESWARA RAO]

New Delhi,
February 14, 2017











No comments:

Post a Comment

Note: Only a member of this blog may post a comment.