Calcutta High Court (Appellete Side)

Md. Firoz Ala @ Firoj Alam vs State Of West Bengal on 18 May, 2022

Sl. No. 32




               IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL APPELLATE JURISDICTION
                             APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
                 And
The Hon'ble Justice Ananya Bandyopadhyay



                                     C.R.A. 176 of 2019
                                   with
                CRAN 1 of 2019 (Old No. CRAN 1730 of 2019)

                         Md. Firoz Ala @ Firoj Alam
                                    -Vs-
                              State of West Bengal


For the Appellant            :         Mr. Kallol Kumar Basu, Adv.
                                       Md. Jannat Ul Firdous, Adv.
                                       Ms. Tithi Majumder, Adv.


For the State                    :     Mr. Swapan Banerjee, Adv.
                                       Ms. Purnima Ghosh, Adv.


Heard on                     :         13.05.2022 & 18.05.2022


Judgment on                  :         18.05.2022


Joymalya Bagchi, J. :-


        Appeal is directed against the judgment and order dated

15.02.2009

and 16.02.2009 passed by the learned Additional

Sessions Judge, Fast Track Court-II, Tamluk, Purba Medinipur, in

Sessions Trial Case No. 3(8)14 convicting the appellant for

commission of offence punishable under Sections 302 of the Indian

Penal Code and sentencing him to suffer rigorous imprisonment for

life and to pay fine of Rs. 5,000/-, in default of payment of fine to

suffer rigorous imprisonment for six months more for the offence

punishable under Section 302 of the Indian Penal Code.

On 27.12.2013 Sk. Farhad, a 10 year old boy, had gone out to

fly kite with his friends. He did not return home in the evening. His

mother Rasida Begum (P.W.2) became worried and started searching

for him. The boy could not be found. On the next day, that is,

28.12.2013 in the morning, one Sk. Salauddin (P.W.7) found the body

of a boy lying in the canal near Simulhanda Primary School. He

informed his father Sk. Badiruddin (P.W. 8) who in turn informed the

family members of the missing child. Body of the child was identified

by his mother and other relations. It was sent for post mortem

examination. Two days later, father of the boy, Sk. Khalilur Rahaman

(P.W. 1) returned to his native village from his place of work at

Mumbai. He lodged written complaint alleging his son had been

murdered by an unknown person and Panskura P.S. Case No.

392/13 dated 30.12.2013 was registered for investigation. Couple of

days later, Sk. Khalilur Rahaman made statement implicating the

appellant who was the Moulabi of a nearby mosque. It was alleged

that the appellant had illicit relationship with Rasida, mother of the

boy. The child had disclosed the illicit relationship to his father and

accordingly appellant nursed a grudge against him. In course of

investigation, a gunny bag and rope were recovered from an open

spot near the mosque. Appellant absconded and was later arrested on

12.03.2014. Charge sheet was filed against him and charges were

framed under Sections 302/201 of the Indian Penal Code. Appellant

pleaded not guilty and claimed to be tried. Prosecution examined 16

witnesses to prove its case. Defence of the appellant was one of

innocence and false implication. In conclusion of trial, learned trial

Judge by the impugned judgment and order convicted and sentenced

the appellant as aforesaid.

Mr. Basu, learned Counsel appearing for the appellant

submits there is no direct evidence implicating the appellant in the

crime. First Information Report was registered against unknown

accused. Motive to commit the crime has not been proved. There is no

evidence on record that the child was last seen with the appellant

prior to his death. Gunny bag and rope were recovered from an open

space and did not implicate the appellant in any manner whatsoever.

Appellant had gone to his native place in Bihar and was subsequently

arrested at Panskura Railway Station. It cannot be said that he had

absconded. Even so, mere abscondence does not establish guilt of an

accused. Circumstances proved in the instant case do not lead to an

irresistible conclusion of guilt against the appellant. Hence, he is

entitled to an order of acquittal.

Mr. Banerjee, with Ms. Ghosh, learned Counsels for the State

argues appellant had strong motive to commit the crime. The child

had seen the appellant and his mother Rasida in a compromising

position. He reported the matter to his father, Sk. Khalilur Rahaman

who reprimanded the appellant. Hence, he nursed grudge against the

child. Victim suffered ante mortem head injury and died due to

drowning. Appellant had removed his body in a gunny bag tied with a

rope and dumped it in the canal. The said gunny bag and rope were

recovered from a spot behind the mosque. After the incident,

appellant absconded and repeatedly changed his SIM Card to avoid

being detected. Finally, he was arrested on 12.03.2014. These

circumstances clearly establish his guilt and prove the prosecution

case beyond doubt.

From the evidence on record and the submissions at the Bar it

appears the prosecution case is based on circumstantial evidence.

Admittedly, there is no direct evidence that the appellant had

murdered the victim.

When a case is based on circumstantial evidence it is the duty

of the prosecution: -

(a) to prove all the circumstances relied upon against the

appellant, beyond doubt;

(b) the circumstances so proved must form a complete chain

which irresistibly points to the guilt of the accused and rules

out all other possible hypothesis of innocence.

Let me examine whether the aforesaid requirement of law have

been satisfied in the facts of the present case.

P.W. 1(Sk. Khalilur Rahaman) is the father of the victim child

and the first informant. He deposed he used to work at Mumbai. He

had telephoned his wife and wanted to talk with his son. His wife told

him that his son was sleeping. When he wanted to talk with his

daughter, his wife told him that his daughter was not at home. He

heard a male voice in the house. On the next day, he again telephoned

his son who informed him that the appellant had come to the house

and had spent the night there. After two days he returned to his

residence and reprimanded the appellant and told him he should not

come to his house. He again left for Mumbai. After reaching Mumbai

he was informed by his son that the appellant continued to come to

his house. Subsequently, he received information that his son was

missing. Hearing the news, he returned home. He was told, body of

his son was found floating in the canal near the Simulhanda Primary

School. He lodged written complaint at Panskura Police Station

marked as "Exbt.-1". In course of investigation, he informed the police

that he suspected the appellant had murdered his son as he had

disclosed the illicit relationship between the appellant and his wife to

him. Police seized various articles in the course of investigation. He

was a signatory to the seizure list.

His brothers Jaidul Ali and Sk. Safik Ali were examined as P.W.

3 and P.W. 12 respectively.

P.W. 3 (Jaidul Ali) deposed his nephew Sk. Farhad Ali was

missing from 27.12.2013. They searched for him but could not trace

him out. On 28.12.2013 one Badiruddin (P.W. 8) informed them that

the dead body of a boy was lying in a 'khal' near Simulhanda Primary

School. After receiving the news, he along with Rashida, mother of the

missing boy and others went to the spot and identified the child as

Farhad. Subsequently, his brother Khalilur Rahaman (P.W. 1)

returned and lodged F.I.R.

P.W. 12 (Sk. Safik Ali) deposed appellant had illicit relationship

with his brother's wife. He had informed his brother about such

relationship. Farhad saw them in a compromising position. One day

Farhad did not return home. On the next morning, his body was

found in a 'khal' near the Simulhanda Primary School. On the next

day, appellant went missing from the mosque. Police recovered a

polythene bag lying at a spot in the rear side of the mosque. He was

the signatory to the seizure list.

P.W. 2 (Rasida Begum) mother of the victim was examined in

the present case. She deposed her son went missing on 27.12.2013.

On the next day, his body was found in a 'nala' near Simulhanda

Primary School. Police came and interrogated her about the incident.

Her husband returned home and lodged F.I.R. She was declared

hostile.

In the course of cross-examination, she stated after the

incident, appellant had fled from the village.

P.W. 4 (Sk. Saifuddin Ali) and P.W. 9 (Sk. Rijuan Ali) are friends

of Farhad. Both of them deposed in the evening of 27.12.2013. Farhad

was playing with them in a field near Simulhanda Primary School.

Farhad stated he was thirsty and went away to drink water.

Subsequently, he did not return.

P.W. 6 (Sk. Fajlur Rahaman) a local witness had also seen

Farhad flying kite in the field near Simulhanda Primary School. He

further deposed on 30.12.2013, police recovered a gunny bag

containing wearing apparels of Sk. Farhad from the room of the

appellant.

P.W. 7 (Sk. Salauddin) deposed on 28.12.2013 at about 5.00

a.m., he saw the body of a boy lying in a canal near the primary

school. He informed his father, Badiruddin. Badiruddin, on his

return, had informed the family members of the missing boy who

came to the spot and identified the body, as that of Farhad.

P.W. 5 (S.I. Subhendu Pandit) is the police officer who held

inquest over the body of the victim marked as "Exbt.-5".

P.W. 15 (Dr. Pradip Kumar Das) held post mortem examination

over the body of the deceased. He opined cause of death was due to

head injury with symptom of drowning, ante mortem in nature. He

further stated death did not occur just after fall. Victim had taken few

shallow gasps in moribund condition. He proved post mortem report

marked as "Exbt.-10/1".

P.Ws. 13, 14 and 16 are the police witnesses.

P.W. 13 (Biswajit Halder) received the written complaint from

P.W. 1 and drew up F.I.R.

P.W. 14 (Ex. SI Swadesh Majumdar) commenced investigation

in the case. He drew up two rough sketch maps with index. He

collected inquest as well as post mortem reports. He seized a plastic

bag, coconut rope and gunny bag under a seizure list. He examined

witnesses.

P.W. 16 (SI Kamrul Jaman) was the second investigating officer.

He tried to trace out the whereabouts of the appellant. He went to

Bihar to arrest the appellant but failed. He tried to locate the tower

location of the mobile phone of the appellant. He collected SDR and

CDR of the mobile phone of the appellant. He finally arrested the

appellant on 12.03.2014. at Panskura Railway Station. He submitted

charge-sheet.

From the aforesaid evidence on record it appeared that the

victim boy namely Sk. Farhad had gone missing from his residence in

the evening of 27.12.2013. He had left his residence for flying kite

with his friends in a field near Simulhanda Primary School. P.Ws. 4

and 9, his friends deposed on the fateful evening, Farhad was playing

with them in the field. He felt thirsty and left the field in search of a

glass of water. Thereafter he went missing. His relations searched for

him throughout the night but failed. Around 5 a.m on 28.12.2013 his

body was recovered in a canal near the primary school by one Sk.

Salauddin (PW 7). After two days his father lodged FIR against

unknown accused. Involvement of the appellant in the murder arose

out of suspicion as his father (PW 1) and uncle (PW 12) suspected that

the appellant nursed grudge against the victim because the latter had

seen the appellant in a compromising position with his mother and

divulged such fact to PW 1.

Mr. Banejee has strenuously contended this constitutes

sufficient motive for the appellant to commit murder.

P.Ws. 1 and 12 i.e father and uncle of Farhad have spoken

about the illicit relationship between the appellant and Rasida, wife of

PW 1.

PW 12 stated victim had seen his mother in a compromising

position with the appellant. PW 1 stated his son informed him over

telephone that the appellant spent night at his residence. However,

another brother of PW 1 namely Jaidul Ali (PW 3) is completely silent

with regard to such illicit association between the appellant and his

sister-in-law, Rasida. Evidence of PW 12 with regard to child seeing

the appellant and her mother in a compromising position ought to be

taken with a pinch of salt. In cross-examination, he admitted he

resides in a different house and had heard about such incident.

Further analysis of the evidence on record would show apart from the

victim, PW 12 had also informed PW 1 about the illicit relationship

between the appellant and Rashida, wife of PW 1.

Thus, it cannot be said that the intimacy between appellant and

her mother Rashida was divulged to PW 1 only by Farhad. PW 12,

uncle of Farhad, had also informed his brother about such

relationship.

In such view of the matter it is difficult for me to understand

why the appellant would nurse grudge against the minor son of his

lover and not against other relations of Khalilur (PW 1) like PW 12

who had also informed the former about his illicit relationship. Hence,

motive to commit the crime does not appear to be convincing.

Coming to the other circumstance, namely, recovery of gunny

bag and rope from the backside of the mosque of the appellant, I note

that the articles were recovered from an open space which is

accessible to all. Moreover, there is nothing on record to show that the

gunny bag or rope so recovered were used to murder the victim or

dispose of the body in the canal. No forensic report is placed on record

to establish presence of blood or other bodily fluids in the seized

articles. Evidence of PW 6 that the wearing apparels of the deceased

were found inside the gunny bag is an exaggeration and not

corroborated by the evidence of the investigating officer Kamrul

Jaman (PW 16), or other evidence on record. Hence, recovery of the

gunny bag and rope from a place near the mosque does not in the

absence of any forensic report establish a live link between the

recovered articles and murder of the victim.

From the evidence on record it appears that the victim was last

seen in a field which is adjoining the primary school. His body was

also recovered from a canal adjoining the school. The mosque is

situated at a considerable distance from the place where the victim

was last seen alive or where his dead body was found. No evidence is

forthcoming that on the fateful evening or immediately prior to the

death of the victim, appellant was last seen with the child. Absence of

this vital incriminating circumstance results in a clear snap in the

chain which cannot be said to be complete to clinch the culpability of

the appellant.

Faced with this predicament Mr. Banerjee has strongly relied on

the abscondence of the appellant immediately after the incident.

Referring to the evidences of PWs 3 and 12 he submits appellant went

missing from the mosque immediately after the incident and did not

return to the village. Second investigating officer (PW 16) was unable

to arrest him in spite of raiding his native village in Bihar. He was

finally arrested on 12.3.2014 at Panskura railway station. It is settled

law abscondence of an accused by itself does not establish his guilt.

In Sk. Yusuf Vs. State of West Bengal1, the Apex Court held as

follows:-

"31. ... It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected, out of fear of police arrest and harassment."

The aforesaid proposition of law wholly applies to the facts of

the present case. Evidence on record shows apart from vague

suspicion owing to a hunch that the appellant may have nursed

grudge against the child for divulging his illicit association with her

mother, no evidence was led to show that the appellant had clear

access to the child soon before his death so as to complete the chain

of circumstances pointing to his guilt. It may be apposite to note even

PW 1 did not lodge FIR against the appellant in the first instance.

After a couple of days out of suspicion the appellant was implicated in

the instant case.

Under such circumstance, it is likely out of fear and

apprehension of false implication and harassment the appellant may