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Friday, August 19, 2011

lost seen theory- circumstantial evidence- 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 3 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.

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

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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

1

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

1

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-

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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

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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

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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

2

(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."

2

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.

3

(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

4

August 17, 2011

4

Thursday, August 18, 2011

how to appreciate evidence- the discrepancy of the murder weapon was not properly proved and Shaik Gouse (PW-17) was a stock witness who was a criminal. We also do not propose to believe the evidence of discovery for the reasons given by the Courts below; however, that would not give any benefit to the accused whose presence on the spot and whose act of hacking the deceased has been fully proved by the evidence of Heeramani (PW-1). It was tried to be argued by Shri Dey, learned defence counsel, that the prosecution did not examine the two child witnesses. We do not think that that could be viewed against the prosecution.

1

"Reportable"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1849 OF 2008

Maloth Somaraju ... Appellant

Versus

State of A.P. ... Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. Appellant Maloth Somaraju challenges the judgment of

the High Court whereby the High Court allowed the State

appeal challenging the acquittal by the Trial Court. He

was tried for the offence punishable under Section 302, IPC

on the allegation that on 15.05.1999 at about 2 a.m. at

night he committed the murder of his elder brother Maloth

Krishna (hereafter referred to as "deceased" for short) by

causing his death with an axe injuring his temporal region,

nose and face which ultimately resulted in his death.

The prosecution story in short conspectus

2

Deceased was a worker in Singereni Collaries. He used

to go for his duty at about 12.30 p.m. at night every day.

On the fateful day, he did not go for his duty. At the

time when the incident happened, he was sleeping on his cot

along with one son. It is the prosecution case that

besides him was another cot on which his wife Heeramani

(PW-1) was sleeping along with another son. Besides these

two cots, there was another cot on which was one Haridas

(PW-9) who was the cousin of Heeramani (PW-1) was sleeping.

2. It is the case of the prosecution that at that time

suddenly the appellant came and assaulted Krishna which

incident was seen by Heeramani (PW-1) who raised cry which

attracted the neighbours who were mostly the relatives of

her husband including his parents, his brother, his sister-

in-law and cousins of the deceased. All his relatives are

Banjara by caste. The deceased was immediately carried in

an auto rickshaw to Singereni hospital where he was

declared as brought dead. On that Maloth Heeramani (PW-1)

had lodged a report before Kothagudem Police Station.

Since she was illiterate, Heeramani (PW-1) got scribed the

report by Rayala Sathyanarayana (PW-14) and submitted it to

Kothagudem police station at 6.30 in the morning. It has

come on record that the report was immediately forwarded to

3

the concerned Magistrate who received it at 7.30 in the

morning. In this report Heeramani (PW-1) complained that

in the midnight she woke up her husband for answering the

call of nature. After that, she and her husband slept. As

they were talking to each other, her brother-in-law Maloth

Somaraju, the accused-appellant came from behind the house

with a sickle (Kota Kathi) and attacked her husband on his

left temporal, nose and under the nose due to which there

was heavy bleeding. She further suggested that she raised

cry and on hearing her cries, her father-in-law Balunayak

(PW-2), her mother-in-law, Maloth Bhikri (PW-3), elder

brother in law Amar Singh (PW-4), his wife Kausalya (PW-5),

her second brother in law Phool Singh (PW-6), his wife

Maloth Dwali (PW-7) came there. On seeing them, accused

Somaraju fled away. After that her husband was shifted in

the auto of Mohan Rao to Company Singereni main hospital.

However, the doctors there told that her husband was dead.

She then narrated that accused/appellant was addicted to

drinking and used to come to house and beat her in-laws and

was harassing them for which her husband had to pacify them

and about fifteen days back when the accused bit her in-

laws, her husband had beaten the accused and it was because

of this that he bore grudge against her husband and axed

her husband. The offence was registered and the

4

investigating officer rushed to the spot, got executed

inquest Panchnama as also got drawn the map of the spot and

sent the body for autopsy. Autopsy was conducted by M.

Gopal Swamy (PW-16). Autopsy report is Exhibit P-19. The

autopsy was conducted at 11 a.m. in the morning. According

to the doctors, the approximate time of death was 8 to 10

hours before the autopsy. After the completion of the

investigation, the charge-sheet was filed. At the trial,

the prosecution examined as many as 20 witnesses and marked

31 documents. In his defence, the plea of accused is of

total deny. There was no defence evidence tendered by him.

The Sessions Judge acquitted the accused which acquittal

was challenged by the State by filing an appeal which

appeal was allowed convicting the accused of the offence

under Section 302, IPC and awarding sentence of life

imprisonment.

3. Shri Anand Dey, learned counsel appearing on behalf of

the appellant contended before us that the High Court had

committed an error in upsetting the verdict of acquittal

given by the trial Court. The learned counsel urged that

the Sessions Judge had taken a possible view and merely

because another view could be taken of the matter, the High

Court could not have converted the verdict of acquittal

5

into that of conviction. The learned counsel strenuously

and painstakingly took us through all the evidence and

contended that Heeramani (PW-1) was the sole eye witness

and it was impossible for her to identify the accused as

admittedly she as well as the deceased were sleeping in the

courtyard and that was a new moon night and thereby there

was complete darkness. Learned counsel further argued that

there were number of suspicious circumstances in the matter

inasmuch as though her own cousin was sleeping on the third

cot, he did not support the prosecution when he was

examined as PW-8. In fact the learned counsel was at pains

to suggest that Heeramani (PW-1) had a definite motive to

falsely implicate the accused inasmuch as the sister of her

husband had married her brother and both her brother as

well as his wife had died unnatural death because of which

the relations between her family and the family of her

husband were strained. It was further argued that the

whole investigation was slipshod and casual inasmuch as the

investigating officer had not even sent the blood stained

clothes of the only eye witness for examination. He did not

even send the clothes which were blood stained. Learned

counsel pointed out from the record that though it was the

version of the witness that there were three cots in the

courtyard, when the investigating officer went there, only

6

one cot was found. The investigating officer did not even

bother to seize the cot which was blood stained. That

apart, the learned counsel pointed out that there were

serious discrepancies in the matter as the scribe of the

FIR, Rayala Sathyanarayana (PW-14) had suggested that he

had written the report at about 9-9.30 a.m. According to

the learned counsel, by then, her relations and, more

particularly, Bhukya Dhalsingh (PW-13) had come and,

therefore, there was every possibility that the relatives

had persuaded her to falsely implicate the accused on

account of the strained relations. The learned counsel

also pointed out that it had come in the evidence that the

Heeramani (PW-10) was in fact sleeping inside the house and

outer door was chained from outside and in fact it was only

after the said door was opened by her father in law, who

come immediately after the assault, that she came out and,

therefore, it was impossible for her to see the accused.

In the FIR, she had never referred to any bulb and that she

had made the improvement regarding existence of a bulb/

source of light only in her cross-examination. Learned

counsel, therefore, urged that if all these suspicious

circumstances were viewed in favour of the verdict of

acquittal, the High court should not have upset the verdict

merely because some other view favouring the conviction was

7

possible.

4. As against this, Shri I. Venkatanarayana, learned

senior counsel appearing on behalf of the State very

strongly supported judgment of the High court and contended

that though the house of the deceased was in the village,

it was right on the road, and therefore, there was a

possibility of the street lights being there. The learned

counsel argued that the evidence of Heeramani (PW-1) is

natural evidence as she could not have been elsewhere when

the incident occurred. Her presence, therefore, was

absolutely natural. He also pointed that her version is

confirmed as she had taken the name of the accused barely

in 3-4 hours after the incident, in her FIR. Considering

that she was an illiterate lady there was no question of

her falsely implicating the accused. The learned counsel

pointed out that her own relations from her father's side

could not have been present at 6.30 a.m. as they are the

residents of the other village. He further pointed that

the investigating officer had given the full explanation as

to why he did not seize her blood stained clothes. As

regards the cots, the explanation given by him was that it

was possible that the cots were removed for being cleaned

as admittedly there was huge amount of blood which was

8

clear from the fact that even the earth became blood

stained. The learned counsel further pointed out that the

version given by her father-in-law about the door being

closed and chained from outside was obviously false as it

was not supported by any other witness and it was clear

that all the hostile witnesses who were the direct

relations of the accused had the sole intention to save the

accused. The learned counsel supported the judgment of the

High Court saying that no other view was possible on the

basis of the evidence led. He pointed out that even

assuming there was darkness, Heeramani (PW-1) could not

have committed mistake in identifying her own brother-in-

law who was barely 2-3 feet from her when the incident

occurred. He pointed out that the prosecution had proved

all the contradictions brought out in the cross-examination

by the Additional Public Prosecutor of the hostile

witnesses. As regards the discrepancy in the FIR regarding

its timing, the learned counsel pointed out that if the

copy of the FIR reached the Magistrate as early as 7.30 in

the morning and it was not expected that an illiterate lady

like Heeramani (PW-1) to have necessary intention to

falsely implicate the accused. It is on the basis of these

conflicting claims that we have to see whether the High

Court was justified in upsetting and convicting the accused

9

for the offence of murder.

5. The law dealing with the judgments of acquittal is now

settled. There can be no two opinions that merely because

the acquittal is found to be wrong and another view can be

taken, the judgment of acquittal cannot be upset. The

appellate Court has more and serious responsibility while

dealing with the judgment of acquittal and unless the

acquittal is found to be perverse or not at all supportable

and where the appellate Court comes to the conclusion that

conviction is a must, the judgment of acquittal cannot be

upset. We have to examine as to whether the High Court,

while upsetting the acquittal, has taken such care and it

is quite clear from the High Court's judgment that the High

Court has certainly taken that care.

6. The High Court has wholly relied on the direct

testimony of Heeramani (PW-1) and has carefully examined

her evidence threadbare. Firstly, the High Court has

correctly found that she had a close relation with the

accused who was her real brother-in-law and she was not

expected to commit any mistake in identifying him. The

High Court has correctly observed that she would certainly

be interested in naming the culprit since she had lost her

husband. The High Court has rightly found that she was a

1

natural witness and her presence in her own household was

also absolutely natural. Her version that she woke up her

husband to attend the call of nature is the most natural

version and that has been specifically stated in the first

information report which was filed barely within 4 - 4=

hours after the incident. The High Court refuted the

defence version that she could not have identified the

accused because of the darkness on the basis of the theory

of the bulb, introduced in the cross-examination. Very

significantly, she had not spoken about her having lighted

the bulb, in her examination-in-chief; however, in her

cross-examination, when it was suggested to her that there

was no power during that night, she specifically refuted

the suggestion and then asserted that she had switched off

the bulb before going to the bed and had switched on the

same after she had awakened to attend the call of nature.

This theory of her switching on the bulb, having been

introduced in the cross-examination, becomes all the more

significant. The High Court, therefore, accepted her

version that she had put on the bulb and had not switched

it off after she and her deceased husband returned to the

bed after answering the call of nature. Therefore,

whatever doubts could have been raised because of the night

being a new moon night and the prevalence of darkness on

1

the spot, were also got dispelled by the defence by its

cross-examination. The High Court has also considered the

contention raised on behalf of the defence that the accused

could not have inflicted the injuries on the face of the

deceased and, more particularly, front part thereof, if

after answering the call of nature, both were talking to

each other, meaning thereby that the deceased was in a

sitting position. The High Court has pointed out through

the evidence of Heeramani (PW-1) that the deceased was in

the lying position and it is on that basis that the High

Court has rejected the defence theory and upheld the

evidence of Heeramani (PW-1). The High Court has also

found that there could not have been any motive on the part

of Heeramani (PW-1) to falsely implicate her husband's

brother. The defence theory was that the sister of the

deceased was married to her brother and her brother had

committed suicide and in fact Heeramani (PW-1) was holding

the accused to be responsible for the suicide. There being

no support to this theory in evidence, the High Court has

chosen to ignore the same and in our opinion, rightly. The

witness was not cross-examined in respect of the

controversy regarding the number of cots. She, in her

evidence, had claimed that there were three cots and she,

her husband and two sons were sleeping on the two cots,

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whereas the third cot was occupied by her cousin. Relying

on the sketch (Exhibit P-30) drawn by the investigating

officer as also on the photographs, it was suggested that

only one cot was found. The High Court has rejected this

theory that the sketch (Exhibit P-30) which is the sketch

drawn by the investigating officer was admissible in

evidence. The High Court has found that even if it was

held to be admissible, admittedly, the sketch was drawn by

11.30 am and, therefore, the possibility of the two other

cots, which had no signs of any blood or any other material

evidence having been found, could not be ruled out. Even

before us, Shri Anand Dey, learned counsel appearing on

behalf of the appellant very strenuously argued on the

aspect of the cot as well as the position of the deceased

and the location of the injuries on the face of the

deceased. We are quite satisfied by the reasoning given by

the High Court to reject the claim of the defence in this

behalf. Similar is the situation regarding her clothes

being stained with blood. It is an admitted position that

her clothes which were stained with blood were neither

seized by the investigating agency nor were they sent for

the chemical examination. The High Court accepted the

explanation of Sub Inspector M. Konda Reddy (PW-20) that

her clothes even otherwise could have stained with blood

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because she had carried the deceased in the auto rickshaw

to the hospital and, therefore, the clothes were not

material. We do not see any reason to reject this

reasoning of the High Court. Shri Dey, learned counsel,

very strenuously urged that it was a doubtful circumstance

and that in the absence of the blood-stained clothes, the

version of Heeramani (PW-1) could not be believed by the

High Court and by this Court. We do not see any reason to

accept the argument by the learned counsel.

7. Heeramani (PW-1) was thoroughly cross-examined and

nothing could be brought out in her cross-examination which

would bring her testimony into dark. On the other hand,

the theory of switching on the bulb was introduced by the

defence in her cross-examination. What impresses us most

about the evidence of this witness is the fact that she

lodged the FIR barely within 4-4= hours of the incident.

She is an illiterate lady, which is clear from the thumb

mark on the FIR. It must be noted that after the incident

which took place at 2 O' clock at night, the deceased was

taken by her to the hospital. It has come in the evidence

of this witness that immediately after the incident, her

father-in-law Balunayak (PW-2), her mother-in-law Maloth

Bhikri (PW-3), Phool Singh (PW-6), her other brother-in-law

1

and Dwali (PW-7), wife of Phool Singh (PW-6) had rushed to

the spot and then the deceased was carried to the hospital.

It is obvious that she alone could not have carried her

husband to the hospital and she must have been accompanied

by the relatives on her husband's side. After her husband

was declared dead by the hospital authorities, she

straightaway went to the police station and lodged the FIR

at 6.30 in the morning which is clear from the evidence of

Sub Inspector M. Konda Reddy (PW-20) as also from the FIR

which we have seen ourselves. What impresses this Court

most is the fact that a copy of the FIR was sent to the

Magistrate almost immediately and it was received by the

Magistrate at 7.30 in the morning. It was urged by Shri

Dey, learned counsel, that this FIR was scribed by Rayala

Sathyanarayana (PW-14) as per the dictation of Heeramani

(PW-1) and that the same was scribed near the police

station. The learned counsel invited our attention to the

evidence of this witness where he has claimed that he

scribed the FIR (Exhibit P-1) at about 10 a.m. It has also

come in the evidence of this witness that the distance

between the police station and the hospital is about 2 Kms.

and the distance between the police station and the spot of

occurrence is about 3 Kms. The learned counsel, therefore,

very vehemently argued that the theory that the FIR was

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lodged at 6.30 am has to fall on the ground of evidence of

this witness. The argument is absolutely incorrect. True

it is that the witness had stated that he scribed the FIR

at 10' o clock in the morning; however, Sub Inspector M.

Konda Reddy (PW-20) has claimed that he received the FIR at

6.30 a.m. on 15.5.1999, on the basis of which he took up

the investigation. Men may lie, but the circumstances and

the documents don't. The copy of the FIR is seen by us

which specifically mentions the time of recording of FIR

6.30 a.m. Further, the receipt of this FIR by the

Magistrate at 7.30 a.m. would obviously put an end to the

theory that the FIR was written by Rayala Sathyanarayana

(PW-14) at 10 O' clock in the morning. It has also come in

the evidence that the inquest on the dead body was itself

held between 7 a.m. and 9.30 a.m. in presence of Banothu

Srinivas (PW-15) and M. Gopal Swamy (PW-16). Had the FIR

been written at 10 a.m., the inquest held between 7 a.m.

and 9.30 a.m. would never have been possible. We see no

reason to disbelieve the inquest report (Exhibit P-21).

The version of Sub Inspector M. Konda Reddy (PW-20) is also

supported by the fact that he registered the offence and

mentioned in the proforma FIR the time as 6.30 a.m. We

have seen the evidence of Sub Inspector M. Konda Reddy (PW-

20) very closely on this aspect. There is no cross-

1

examination on this aspect excepting the bald suggestion

that the time of the offence and the time of the report

were manipulated to cover up the lapses on the part of the

investigating agency. We do not see any justification to

this bald suggestion, particularly in view of a clear

endorsement by the Magistrate that the FIR reached the

Magistrate at 7.30 a.m. Once this aspect of the timing is

proved, the same must clinch the issue and then it cannot

be imagined that Heeramani (PW-1) who was in the company of

her relatives on her husband's side, would falsely

implicate her own brother-in-law. The theory of false

implication is just not possible as the lady hardly had any

time to think about the false implication of her brother-

in-law. The lady is illiterate. She could not have just

created the theory that it was her brother-in-law who was

the culprit, unless that was the truth. On this backdrop,

when we read the FIR, it completely corroborates her

evidence.

8. The first information report given by this witness is

complete in all the details. She very specifically stated

that on that day her husband did not go for the duty and on

that night she and her husband and her cousin were sleeping

and she woke up her husband to attend the call of nature.

1

Thereafter, she and her husband slept and while they were

talking to each other the accused came from behind and axed

the husband on his temporal, nose and under the nose. She

also spoke about her raising cries and her relatives,

namely, Balunayak (PW-2), her father-in-law, Maloth Bhikri

(PW-3), her mother-in-law, Amar Singh (PW-4), her elder

brother-in-law, his wife Kausalya (PW-5) and the other

brother-in-law Phool Singh (PW-6) and his wife Dwali (PW-7)

having come on the spot. She has also referred to the fact

that on seeing them the accused fled away. She has further

stated that after they brought the husband to the hospital

in the auto of one Mohan Rao, the doctor told them that her

husband was dead. She has also given reasons for the

accused to attack her husband. The name of scribe is also

to be found in the first information report. There were no

contradictions in her evidence. She has supported the

first information report fully.

9. It was stated by the learned defence counsel that the

scribe has given an altogether different time regarding

writing of the first information report and had stated in

the examination-in-chief as well as the cross examination

the totally different timing. Very strangely, it has come

in the cross examination itself by the defence that there

1

was rumour among the people gathered there that the accused

had killed the deceased. The first information report was

scribed by PW-14 Rayala Sathyanarayana who said in his

cross examination that it was at about 10 a.m. that he

scribed the FIR. The learned defence counsel very heavily

relied on this assertion and pointed out that though the

FIR is shown to have been registered at 6.30 a.m., in fact

it was scribed at 10 O' clock. We have seen the evidence

and we are of the firm opinion that his assertion that the

FIR was scribed at 10 O' clock cannot be correct,

particularly, in view of the registration of the offence at

6.30 a.m. in the morning and the copy of the FIR having

reached the Magistrate at 7.30 a.m. It is obvious that the

witness was falsely claiming the time of the FIR to be 10

O' Clock. Bhukya Dhalsingh (PW-13) is a resident of

another village called Jethyathanda. He is related to the

accused as well as Heeramani (PW-1). He could reach the

hospital at about 8 or 9 p.m. He asserted that Heeramani

(PW-1) and others were in the hospital and he was told by

Heeramani (PW-1) that the accused killed her husband. Of

course, this evidence would be of no consequence excepting

to the evidence of judging the behaviour of Heeramani (PW-

1) in revealing the name of the accused in his cross

examination by the defence. He was made to say that there

1

was rumour among the people gathered there that the accused

had killed the deceased. The evidence of M. Jithendar

Reddy (PW-19) completely supports the theory that the FIR

was received at 6.30 a.m. and at the same time was

registered. He has also asserted that he sent the printed

registered FIR to the Additional JFCM, Mothagudem and also

marked the copies to concerned officers. There is

absolutely no cross examination of this witness excepting a

bald suggestion that the time of the report was

manipulated. All this evidence clearly shows that

Heeramani (PW-1) was a truthful witness. She stood her

cross examination extremely well.

10. It is not the quantity but the quality of the evidence

which clinches the issue in the criminal trial of this

type. The quality of the evidence of Heeramani (PW-1) is

very high and her evidence alone is sufficient for the

conviction of the accused. We will, however, consider the

evidence of other witnesses like Balunayak (PW-2), the

father of the deceased who claimed that he was called at 12

midnight or at 1 a.m. by his deceased son that somebody had

hit him and had broken his head. He claimed to have tied

the towel to the head of the deceased and gave him water.

At that time Heeramani (PW-1) and her children were

2

sleeping in the house and the door was bolted from outside.

He claimed to have opened the door and it is then that

Heeramani (PW-1) came out. He was declared hostile and the

whole statement made by him being totally contradictory was

got proved by the Public Prosecutor.

11. He has of course failed to say anything about the

bolted door from outside and about his having woken up his

daughter in law i.e. Heeramani (PW -1) in his statement

before the police. Those are clear omissions. On the

other hand, the story told by him in contradictory portions

of his statement under Section 161, Cr.P.C. suggests that

he is not a truthful witness. This is apart from the fact

that he was extremely interested in saving the life of

accused who is his son and further this part of his

evidence was not supported by another witness including his

wife Maloth Bhikri (PW-3) and the other witness, namely,

Amar Singh (PW-4). Amar Singh (PW-4) significantly enough

deposed that on the night of death of Krishna he heard the

cries of Heeramani (PW-1) at 1.30. a.m. which is the time

told by Heeramani (PW-1) also. He was awakened by the

cries of PW-1 and not by the cries of the deceased as was

claimed by Balunayak (PW-2). That is the corroboration to

the evidence of PW-1 at least in respect of the time. It

2

also wipes out the story of Balunayak (PW-2) that the

deceased had shouted. Significantly enough, no other

witness has stated to have been awakened by the cries of

the deceased. In his cross examination by the defence, it

has come that Heeramani (PW-1) had told him in the hospital

that the accused was the person responsible for the

injuries. Thus, Heeramani (PW-1) had told the name of the

accused even to this witness which is a relevant piece of

evidence. The evidence of Kausalya (PW-5) and Phool Singh

(PW-6) is of no consequence excepting to the extent that he

was present along with Amar Singh (PW-4) and his father

Balunayak (PW-2) in the hospital. He tried to improve upon

his story to the effect that Heeramani (PW-1) had expressed

to him as to who was the assailant. He was also declared

hostile. Therefore, his evidence would be of no

consequence. Similar is the story of Banoth Dwali (PW-7),

Vankudoth Haridas (PW-8), Maloth Haridas (PW-9), Maloth

Badru (PW-10), Maloth Devadas (PW-11) and Banoth Khalu (PW-

12). All these witnesses were declared hostile and their

evidence is of no consequence excepting to the extent

stated earlier. We have already referred to the evidence

of Bhukya Dhalsingh (PW-13) and Rayala Sathyanarayana (PW-

14) in the earlier part of the judgment. The panch

witnesses, namely, Banothu Srinivas (PW-15) and Malothu

2

Balu (PW-16) have also turned hostile. When we compare the

evidence of all these persons who were the relatives of the

deceased, it is significant that it has nowhere come that

Heeramani's (PW-1) paternal relatives were there. In fact

she was surrounded by all the relatives of her husband and

yet she has named her husband's younger brother as the

accused in her FIR. We cannot imagine that she would be

falsely implicating the accused in presence of all the

relatives of her husband's side. Therefore, we are of the

opinion that Heeramani (PW-1) is a completely reliable

witness.

12. It was argued that in this case, the discrepancy of

the murder weapon was not properly proved and Shaik Gouse

(PW-17) was a stock witness who was a criminal. We also do

not propose to believe the evidence of discovery for the

reasons given by the Courts below; however, that would not

give any benefit to the accused whose presence on the spot

and whose act of hacking the deceased has been fully proved

by the evidence of Heeramani (PW-1). It was tried to be

argued by Shri Dey, learned defence counsel, that the

prosecution did not examine the two child witnesses. We do

not think that that could be viewed against the

prosecution. After all, they were of the tender age and to

2

put them in the witness box would have been hazardous.

Besides the prosecution had put all the witnesses in the

witness box who had rushed on hearing the shrieks by

Heeramani (PW-1) and initially all those witnesses had

allegedly seen the appellant/accused. It is a different

affair that all of them turned hostile, obviously in order

to save the appellant/accused who was their own kith and

kin. We, therefore, do not view this to be a suspicious

circumstance.

13. The learned defence counsel Shri Dey also argued that

the weapon was different. While in the FIR, Heeramani (PW-

1) had said the weapon to be Kota Kathi (hunting sickle),

the learned defence counsel pointed out that the weapon

which was seized was an axe. We do not attach much

importance to this insignificant discrepancy as it may be

that Heeramani (PW-1) could not differentiate between the

hunting sickle and the axe, both of which are fitted with a

wooden handle. We have also some suspicious circumstances

mentioned in the judgment of the trial Court. The first is

regarding existence of bulb. The trial Court held that the

time of incident was not mentioned in the FIR (Exhibit P-

1), but ignored the fact that the subject of bulb was

brought in the cross-examination by the defence. The

2

second circumstance is about Heeramani (PW-1) sitting on

the cot and talking with her husband and not mentioning

that the husband was also lying on the cot. In our

opinion, this circumstance is absolutely insignificant as

it has been shown that her husband was actually lying on

the cot as per her version in the Court. Third

circumstance is the possibility of their not talking. That

is absolutely insignificant and has to be ignored. It is

nothing unnatural. Fourth circumstance is the account of

darkness. We have already explained that circumstance that

even in the light that was available, it was quite possible

for Heeramani (PW-1) to identify, which identification was

further corroborated by her immediately naming the accused.

Fifth circumstance is about the position of the deceased

which we have already explained. This circumstance could

not be availed by the trial Court. Sixth circumstance is

about existence of only one cot near the fence at some

distance which was seen in photos. We have already

explained this circumstance to be insignificant as there

was possibility of removing the cots since the panchnama

took place at about 11 O' clock in the morning. Seventh

circumstance is about blood stained clothes of Heeramani

(PW-1) not being seized to establish her presence. We have

explained this circumstance that there was very good

2

explanation given by the investigating officer. Eighth

circumstance is obviously incorrect, that being the delay

in giving the report. Ninth circumstance is the cousin of

Heeramani (PW-1) not supporting the prosecution. That by

itself cannot be a suspicious circumstance, particularly,

on the backdrop of the FIR having been registered at 6.30

a.m. and the same having been received by the Magistrate at

7.30 a.m. Tenth circumstance is about the relatives

completely turning hostile and not supporting the version.

This could not be held to be a suspicious circumstance for

the simple reason that they were all interested in the

accused. Eleventh circumstance is that there was no strong

motive to kill. The motive looses all its significance in

the wake of eye-witness's account. Twelfth circumstance is

that there were possibilities of some other persons

attacking the deceased. There is absolutely no basis for

this wild imagination. We have already referred to the

thirteenth circumstance about bill book and held it to be

not a suspicious circumstance. Fourteenth circumstance is

merely inferential. Fifteenth circumstance is that

Heeramani (PW-1) did not try to obstruct the deceased to

give him blow after first blow. That circumstance depends

upon the individual reaction. We do not attach any

importance to such a circumstance. Last circumstance is

2

again about the cot. We do not think that that is any

relevant circumstance. Therefore, it is clear that the

trial court got swayed away by the so-called irrelevant

suspicious circumstances which resulted into the acquittal

of the appellant. The High Court has, in its judgment,

dealt with all the other aspects in detail and has also

considered the evidence without being influenced by all

these irrelevant and imaginary suspicious circumstances.

We wholly approve of the judgment of the High Court and

confirm the same. In the result, the appeal has no merits

and it is dismissed.

..............................J.

[V.S. Sirpurkar]

..............................J.

[T.S. Thakur]

August 17, 2011;

New Delhi.

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