Calcutta High Court (Appellete Side)
Bechuram Bag vs The State Of West Bengal on 22 February, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Bivas Pattanayak
C.R.A. 108 of 2018
Bechuram Bag
-Vs-
The State of West Bengal
For the Appellant : Mr. Subir Ganguly, Adv.
Mr. Sumanta Ganguly, Adv.
Mr. D. Sardar, Adv.
For the State : Mr. Sudip Ghosh, Adv.
Mr. Apurba Kumar Datta, Adv.
Mr. Bitasok Banerjee, Adv.
Heard on : 04.04.2022, 08.04.2022, 12.04.2022,
20.04.2022, 17.05.2022, 06.01.2023,
& 19.01.2023.
Judgment on : 22.02.2023
Joymalya Bagchi, J.:-
1.
This appeal is directed against the judgment and order dated
20.12.2017 and 21.12.2017 passed by learned Additional Sessions
Judge, Fast Track Court, Serampore, in Sessions Trial No. 05 of 2013
arising out of Sessions Case no. 205 of 2012 convicting the appellant
for commission of offences punishable under sections 302/376/201 of
the Indian Penal Code and sentencing him to suffer rigorous
imprisonment for life and also to pay a fine of Rs.10,000/, in default, to
suffer simple imprisonment for a further period of two years for the
offence punishable under section 302 IPC and to suffer rigorous
imprisonment for seven years and also to pay a fine of Rs. 5000/, in
default, to suffer simple imprisonment for a further period of two years
for the offence punishable under section 376 IPC and to suffer rigorous
imprisonment for a period of five years and also to pay a fine of Rs.
2,000/-, in default, to suffer simple imprisonment for a further period of
one year for the offence punishable under section 201 IPC. All the
sentences to run concurrently.
Prosecution case:-
2. The victim Keya was a 22-year old girl. On 03.01.2012 around
3:30 PM she left her residence. She told her mother she is going to
Teliamore. Till 7:00 PM she did not return home. This disturbed her
parents and other relations. They started searching for Keya. Around
7:00 PM her paternal aunt Ashima Patra (P.W. 17) received a phone
call. A male voice told her he had married Mana (Keya's nickname) and
they were residing at Santipur. On the next day i.e. 04.01.2012, father
of Keya (P.W. 13) lodged missing diary.
3. On 05.01.2012 around 4/4:30 PM one Kesto Malick (P.W. 1),
a resident of Baidyabati Chawk went to wash himself at a big pond
situated beside Bank Colony. He found the dead body of an unknown
girl floating in the pond. She was wearing only a kameez and a panty.
He noticed a deep wound on her neck. He lodged written complaint at
Serampore Police Station which was scribed by one Soumen Ghosh
(P.W. 3). This resulted in registration of Serampore Police Station case
no. 07/12 dated 05.01.2012 under sections 302/201/34 IPC against
unknown person.
4. On 07.01.2012 Haladhar Patra (P.W. 13) read a news item
regarding recovery of dead body of an unknown female. He along with
others went to Sheoraphuli Phari. On seeing the photograph he
identified the body as that of his daughter. Thereafter, he identified the
body of his daughter at the morgue. Post mortem was conducted over
the body by P.W. 25, Dr. Debaprasad Ghosh. In addition to the cut
injury on her throat, post mortem doctor noted injuries in the private
parts. He opined victim had been subjected to forcible sexual
assault/rape and was murdered.
5. In the course of investigation, Debanjan Bhattacharjee, the
investigating officer (P.W. 26) interrogated the relations as well as one
Rimpa Patra (P.W. 6), friend of the deceased. It transpired that appellant
was working as a mason in the house of Haladhar and his relations.
Keya, the deceased, fell in love with the appellant. Appellant had
suppressed that he was a married man and had a daughter.
6. On suspicion, appellant was arrested in the case on
10.01.2012. On 12.01.2012 he made a disclosure statement (Exhibit
20). Pursuant to the disclosure statement, the certificate of the
deceased, her purse, handkerchief and a plastic packet were recovered.
On 13.01.2012, appellant made another disclosure statement (Exhibit
21). Pursuant thereto, the weapon of offence katari and cardigan of the
deceased were also recovered. FSL report (Exhibit 22) showed there was
blood on the katari but its origin could not be detected. Call Detail
Records (CDRs) of mobile Nos. 8017481635 (standing in the name of
Nilima Patra, mother of the deceased) and 9051738821 (standing in the
name of the appellant) were collected. Subscriber Detail Records (SDRs)
Exhibits 19, 19/1 show there were a number of telephonic
conversations between the aforesaid numbers. On 03.01.2012 two
phone calls were made from the mobile phone of Nilima Patra to that of
the appellant around 16:03 hours and 16:08 hours and a phone call
was made from the mobile number of the appellant to that of Nilima
Patra at 17:14 hours. No further phone call was made or received on the
number of Nilima Patra. Base Transceiver Station (BTS) of both the
mobile phones were same when the aforesaid phone calls were made.
7. Charge-sheet was filed against the appellant and charges were
framed under sections 302/201/376 IPC. Appellant pleaded not guilty
and claimed to be tried.
8. In the course of trial, prosecution examined 26 witnesses.
Number of documents including the SDRs and CDRs of the aforesaid
mobile numbers were exhibited.
9. In the course of arguments, appellant raised objection to the
admissibility of the SDRs i.e. electronic records without proof of
certificate under section 65(4) of the Evidence Act. Overruling such
objection, the trial Judge upon considering the entire evidence on
record including the electronic records came to a finding of guilt against
the appellant. Hence, the present appeal.
Prosecution evidence:-
10. To prove its case the prosecution has led the following
evidence:-
(i) Relations:-
11. P.W. 5, Kamalesh Patra is the brother of the victim. On
03.01.2012, he was not at his residence when Keya left. He returned
around 7:30 PM and heard about the incident from his mother. He rang
his sister's mobile number which was found switched off. He stated that
the mobile number used by his sister stood in the name of his mother.
He further deposed he heard that his Jathaima i.e. Ashima Patra (P.W.
17) had received a phone call where a person in a male voice stated he
had married Mana i.e. Keya and were residing at Santipur. On the next
day, he lodged missing diary. A police officer from Chanditala Police
Station made enquiry into the matter. Upon enquiry the officer told
them that the phone call had come from a public telephone booth at
Baidyabati station area.
12. He further deposed one Satyam Chowdhury @ Jhantu (P.W. 7)
a mason used to reside at Baidyabati and had done marble flooring in
their house three years ago. Appellant was a labour employed under
Jhantu. He had worked at their house. Keya used to talk with the
appellant regularly over phone. He suspected Keya and the appellant
had developed a relationship. He informed the police officer of
Chanditala Police Station about such fact. Rimpa, a friend of Keya told
him that Keya had developed affection for the appellant who was a
married man with a daughter. Appellant knew the nickname of Keya as
Mana. He also knew the telephone number of his Jathaima, Ashima
Patra. On 07.01.2012, they read a news item that an unidentified dead
body of a female was recovered from Baidyabati area. They went to
Sheoraphuli Police Station and identified the body.
13. Haladhar and Nilima, parents of the deceased, were examined
as P.Ws. 13 and 18 respectively. P.W. 18 was present in the house on
03.01.2012 when Keya went out. She was wearing a Ghee coloured
Churidar and a red-orange and black coloured sweater. She told her
mother she was going to Teliamore. She did not return. They searched
for her in vain. Around 9:00 PM her sister-in-law, Ashima Patra (P.W.
17) disclosed about the phone call. On the next morning her husband
lodged general diary. She further deposed appellant worked in their
house for three months. He used to call her daughter over mobile. She
suspected that he had killed her daughter.
14. Haladhar Patra (P.W. 13) corroborated his son Kamalesh (P.W.
5) and his wife Nilima Patra (P.W. 18). He also suspected appellant had
murdered his daughter.
15. P.W. 16, Biswajit Chalki is the maternal uncle. He also
deposed that Keya was missing from 03.01.2012. In the night they
searched for Keya. Ashima Patra told them she received a phone call
wherein a male voice claimed he had married Keya and was staying at
Santipur. He tried to ring back but the phone was switched off.
16. P.W. 17, Ashima Patra stated on 03.01.2012 she saw Keya
going out. She was wearing ghee coloured churidar and an orange white
coloured sweater. She stated she was going to Teliamore. She did not
return. At 9:30 PM she received a phone call in a male voice stating
"Ami Mana ke biye korechi. Amra bhalo achi bole deben". (I have married
Mana. We are happy. Please convey this news). Appellant used to work
in the house of her devar Haladhar and also in her house for six
months as a mason. She informed Haladhar about the phone call.
17. P.W. 14, Shyam Sundar Patra is a cousin of Keya. He stated
he saw Keya at Teliamore around 4:30/5:00 PM. He stated she had
come to eat fuchka (snacks).
(ii) Friends and neighbour:-
18. P.W. 6, Rimpa Patra is a friend of Keya. She deposed Keya was
missing. Subsequently, reading the newspaper she came to know Keya
had died. She further deposed she had told the investigating officer that
she came to know from Keya that a love affair had developed between
Keya and the appellant. She also disclosed such fact to police. She had
not divulged such fact to the parents of Keya earlier.
19. P.W. 15, Bibhas Sur a neighbour has corroborated P.W. 14,
Shyam Sundar Patra, cousin of Keya that she saw her eating fuchka
(snacks) at Teliamore around 4:30/5:00 PM on 03.01.2012.
(iii) Employer and co-workers of appellant:-
20. P.W. 7, Satyam Chowdhury @ Jhantu was the employer of the
appellant. He deposed he worked at the house of Haladhar for setting
marble. He provided masons. Appellant was one of them. The work went
on for one and half months. They became familiar with the family
members of Haladhar. He also worked at the house of Haladhar's elder
brother. On 02.01.2012, there was celebration in his house in relation
to his son's birthday. All the workers were invited. On the next day i.e.
03.01.2012 appellant and other workers also came to his house to
attend a feast. They left around 2:00 PM. Appellant again returned to
his house at 9/9:15 PM and left after 15 minutes. On the next day,
appellant went to work at Janai. Janai is situated at a distance of 4-5
kilometers from the village of Haladhar. On that day, he received news
from Haladhar that his daughter was missing and he suspected that
she had left with the appellant. He went to Janai and found appellant
was working there. He informed Haladhar accordingly.
21. P.W. 12, Chandranath Hazra is a co-worker. He corroborated
P.W. 7 that appellant worked under him. On 03.01.2012, they had gone
to P.W. 7's residence for a feast and left his residence around 2:30 PM.
(iv) Witnesses to recovery of dead body and registration of
F.I.R.:-
22. P.W. 1, Kesto Malick deposed on 05.01.2012 at around 4/4:30
PM he had gone to wash his hands and feet at a big pond situated
beside the Bank Colony. He saw the dead body of an unknown female in
the pond. He found she was wearing only a kameez and a panty. There
was a cut mark on her throat. He lodged written complaint (Exhibit - 1)
which was scribed by Soumen Ghosh. He was a signatory to the inquest
prepared by police.
23. P.W. 3, Soumen Ghosh is the scribe though he is declared
hostile. He proved the written complaint (Exhibit - 1).
24. P.W. 8, Amit Ghosh is the owner of the pond from where the
body was recovered.
25. P.W. 20, Tathagata Pandey was posted as I.C., Serampore
Police Station. He received written complaint from P.W. 1.
(v) Medical witness:-
26. P.W. 25, Debaprasad Ghosh is the post mortem doctor. He
examined the body of the deceased on 06.01.2012. He held post mortem
examination on 06.01.2012. He found the following injuries:-
(1) "Two separate incised wounds in left shoulder No. (a)
3" X 2" X 1" (b) 2" X 1" X 1";
(2) Another incised wound in right palm 4" X 1" X 1";
(3) One Big cut throat wound in neck below the laryngeal
prominence - 14" X 4" X extending upto deeper
structure. The wound extends from one sterno - cleido
mastoid to another. Internal Jugular vein, carotid
artery and vagus nerve of both sides injured.
Tracheal rings cut. Injury to larynx and thyroid
cartilage;
(4) Bruise in abdomen, medial part of thigh;
(5) Crescentic shape nail mark abrasion in thigh,
abdomen and inguinal area and injury No. - 1 and 2
are suggestive of defence wound. Brain, lungs, heart,
kidney, liver-pale, stomach - empty.
Genital findings - blood in vagina, injury to cervix of
uteres, injury to vaginal wall and fourschette. These
features are suggestive of sexual assault."
He deposed the time of death was within 36 hours of autopsy. He
opined cause of death was shock due to haemorrhage arising from cut
throat injury, ante mortem and homicidal in nature. He opined injury
No. 3 in the report was caused by a sharp cutting weapon.
(vi) Police and other witnesses:-
27. P.W. 26, Debanjan Bhattacharjee is the investigating officer.
He deposed after receiving F.I.R. he went to Baidyabati Bank Colony. He
held inquest and took photograph of the deceased. He sent the body for
post mortem examination. He proved the inquest report (Exhibit - 2/2).
He prepared rough sketch map with index. He examined the owner of
the pond. P.W. 4, Constable Dibeyendu Chaklanabish collected the
wearing apparels and other body parts of the deceased from post
mortem doctor. P.W. 2, A.S.I. Debashis Banerjee seized the said articles.
On 07.01.2012 Kamalesh, brother of the deceased came to the police
station. He stated he had made general diary at Chanditala Police
Station being G.D. Entry No. 198 dated 04.01.2012. He identified the
wearing apparels. Thereafter, body of the deceased was handed over to
her brother.
28. In the course of investigation, he arrested the appellant on
10.01.2012. On 12.01.2012, appellant made a disclosure statement
(Exhibit - 20) leading to the recovery of certificates, purse and
handkerchief of the deceased. Recovery was made in the presence of
local witnesses, namely, P.Ws. 9, 10 and 11 and a police officer, P.W.
19. On the next day, appellant made another disclosure statement
(Exhibit - 21) resulting in the recovery of a katari and cardigan of the
deceased. Recovery was made in presence of a police officer, P.W. 21
and independent witnesses, P.Ws. 22 and 23.
29. P.W. 24, Mohan Karmakar deposed police had brought the
appellant to his shop. Appellant stated he had sharpened the katari in
his shop.
30. P.W. 26, investigating officer also obtained CDRs and SDRs
with regard to mobile Nos. 8017481635 and 9051738821. CDRs of the
mobile phones were exhibited as Exhibits - 19, 19/1. He opined from
the CDRs it appears that the cell tower location of the two phones were
the same. Hence, appellant and the deceased were at the same place.
He collected FSL report and submitted charge-sheet.
Principles governing cases based on circumstantial evidence:-
31. The prosecution case is based on circumstantial evidence. In
Sharad Birdhichand Sarda vs. State of Maharashtra1 the Apex Court
enunciated five golden principles governing proof in cases involving
circumstantial evidence as follows:-
"153. ... (1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not "may be"
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
(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. Let me examine whether the prosecution has been able to
discharge the onus as per the parameters laid down in Sarda (supra).
a) Last seen together:-
33. The main plank of the prosecution case is that around 5:00
PM on 03.01.2012 the appellant met Keya. Thereafter, she had been
murdered. To prove this circumstance, the prosecution case has
essentially relied on electronic records i.e. CDRs of the mobile Nos.
8017481635 and 9051738821, SDRs of the said mobile numbers were
also placed on record. In addition thereto, prosecution also relied on the
(1984) 4 SCC 116
oral evidence of P.W. 5, brother of Keya that mobile No. 8017481635
which stood in the name of her mother was used by Keya.
34. P.W. 26 investigating officer deposed upon obtaining
permission from Superintendent of Police, he had obtained the SDRs
and CDRs of the said mobile numbers. Referring to the CDRs he
deposed on three occasions conversation took place between the
appellant and Keya. From the tower location, it reveals they were at the
same place. Admittedly, no certificate under section 65(4) of the
Evidence Act was placed before the Court. During trial, this issue was
raised on behalf of the defence. Trial Judge negated the argument with
reference to the responses made by the appellant during his
examination under section 313 Cr.P.C. He also held as defence did not
put any objection when CDRs and SDRs were exhibited the appellant
has "virtually admitted", he had made conversations with the user of
the other phone.
35. I have gone through the answers given by the appellant in his
examination under section 313 Cr.P.C. Relevant questions and his
responses are as follows:-
"Q. This witness further deposed that her sister had a Vodafone
number which was issued in the name of his mother, Nilima
Patra and that they obtained call details of last five months and
on seeing the said call details they found that except three
numbers to which calls were made from said mobile used by his
sister was the number of your mobile phone. What would you
say?
A. As I worked in the house of Haladhar Patra I used to talk
to the owner of that house concerning worked or information
relating to new work. But, I never called Keya Patra over
telephone at any point of time.
Q. He further deposed that on 14.01.2012 he collected S.D.R.
and C.D.R. of mobile phone No. 8017481365 & 9051738821
and came to learn that the first number belongs to one Nilima
Patra, jathaima of Keya Patra and the second number belongs
to you and that on three occasions conversations were made
between you and Keya Patra and when the last call is made the
tower location of both the cell phones were same which means
both the persons were at the same place. Will you say anything
on this?
A. I have got nothing to say."
36. Responses of the appellant to the aforesaid questions by no
stretch of imagination can be said to be an admission that he had
telephonic conversations with the victim earlier on the fateful day. He
merely stated he had worked at the house of Haladhar and used to talk
to the owner of the house concerning work or information regarding new
work. With regard to the questions put to him regarding the SDR and
CDR, he replied he had nothing to say.
37. Admission of a fact particularly in a criminal trial must be
clear and unequivocal. An evasive reply during examination under
section 313 Cr.P.C. cannot be construed to be an admission of an
incriminating fact which tends to implicate the appellant. In fact, an
accused does not render himself vulnerable by refusing or evading to
answer a question during examination under section 313 Cr.P.C. Only
when the onus shifts on the accused to explain circumstances within
his "special knowledge" and if he fails to discharge such onus or gives a
false explanation during such examination, his conduct may be treated
as an additional circumstance supporting the prosecution case. No
such situation arises in the present case. The burden wholly lay with
the prosecution to establish that the appellant and the deceased were
together on the fateful day. If the prosecutor is unable to prove such
circumstance beyond doubt, the onus does not shift on the accused. In
such a situation, the Court cannot put the cart before the horse and
rely on an evasive response of the accused to the so-called circumstance
to come to a finding of guilt.
38. This brings us to the more important question:- Have the
electronic records, i.e., Exhibits - 19, 19/1 been proved in accordance
with law?
39. Section 65A of the Evidence Act, inter alia, states the contents
of electronic records may be proved in accordance with the provisions of
65-B of the Evidence Act. In Arjun Panditrao Khotkar vs. Kailash
Kushanrao Gorantyal And Others2 a three-Judge Bench of the Apex
Court reiterated the ratio in Anvar P.V. vs. P.K. Basheer3 and held that
section 65-A and 65-B of the Evidence Act are a complete code in itself.
Proof of a written certificate under section 65-B (4) is a condition
precedent for admission of a copy of the electronic evidence.
40. The Bench held Tomaso Bruno vs. State of U.P.4 and Shafhi
Mohammad vs. State of Himachal Pradesh5 did not lay down the law
(2020) 7 SCC 1
(2014) 10 SCC 473
(2015) 7 SCC 178
(2018) 2 SCC 801
correctly. The Bench, however, carved out two exceptions to the
aforesaid rule. Firstly, when the original electronic records stored in the
computer device is produced in Court. Secondly, when the party who is
not in possession of the certificate takes all efforts within its powers to
obtain the certificate and even on an application before the Court the
party in possession of the certificate does not produce the same. Then
secondary evidence of such electronic records may be adduced without
the certificate.
41. In Arjun Panditrao Khotkar (supra) the stage at which
objection is required to be raised for admitting secondary electronic
evidence did not fall for consideration. Though the Court reiterated that
proof of a certificate is a condition precedent to adduce a copy of the
electronic evidence, the ratio cannot be stretched to mean that copy of
electronic evidence once admitted without objection during trial can be
put into question at a subsequent stage. Ramasubramanian, J. referred
to the 1st proviso of section 136 of the Evidence Act and held proof of
certificate is a condition precedent for admissibility of copy of electronic
evidence. Proof of certificate, therefore, is a mode of admitting secondary
electronic evidence. It has nothing to do with the inherent admissibility
of such evidence. For example, copy of a video recording of a confession
before a police officer would be inherently inadmissible even if a
certificate under section 65-A(4) is proved. On the other hand, absence
of a certificate would not make the copy of the video recording of a
judicial confession inherently inadmissible but would affect the mode of
its proof envisaged in section 136 of the Evidence Act rendering it
inadmissible on such score.
42. No doubt onus to prove the preliminary fact to adduce
secondary electronic evidence i.e. certificate under section 65-A(4) of
Evidence Act is on the prosecution. But when a copy of electronic
evidence without the certificate is tendered and admitted in evidence
without objection from the defence it would mean the defence does not
dispute the preliminary fact and the mode of proof of the secondary
electronic evidence.
43. This issue was addressed by the Apex Court in Sonu vs. State
of Haryana6. In the said report the Apex Court held production of a
certificate under section 65-A(4) of the Evidence Act relates to the
method and mode of proof of secondary electronic records. The Court
held objection to the admissibility of secondary electronic records must
be raised at the time when the secondary electronic evidence is tendered
and proved and not thereafter. It held as follows:-
"32. It is nobody's case that CDRs which are a form of electronic
record are not inherently admissible in evidence. The objection is
that they were marked before the trial court without a certificate
as required by Section 65-B(4). It is clear from the judgments
referred to supra that an objection relating to the mode or method
of proof has to be raised at the time of marking of the document as
an exhibit and not later. The crucial test, as affirmed by this Court,
is whether the defect could have been cured at the stage of
marking the document. Applying this test to the present case, if an
objection was taken to the CDRs being marked without a
certificate, the Court could have given the prosecution an
(2017) 8 SCC 570
opportunity to rectify the deficiency. It is also clear from the above
judgments that objections regarding admissibility of documents
which are per se inadmissible can be taken even at the appellate
stage. Admissibility of a document which is inherently
inadmissible is an issue which can be taken up at the appellate
stage because it is a fundamental issue. The mode or method of
proof is procedural and objections, if not taken at the trial, cannot
be permitted at the appellate stage. If the objections to the mode of
proof are permitted to be taken at the appellate stage by a party,
the other side does not have an opportunity of rectifying the
deficiencies."
44. It may not be out of place that the Bench in Arjun Panditrao
Khotkar (supra) at paragraph 45 noted the aforesaid observation in
Sonu (Supra) but did not express any opinion on this score:-
"45. Thus, it is clear that the major premise of Shafhi
Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801
that such certificate cannot be secured by persons who are not in
possession of an electronic device is wholly incorrect. An
application can always be made to a Judge for production of such
a certificate from the requisite person under Section 65-B(4) in
cases in which such person refuses to give it."
45. In the present case, no objections were raised when the copies
of CDRs/SDRs were tendered and admitted into evidence. Once the
CDRs/SDRs were admitted into evidence without objection it would lead
to the irresistible conclusion that defence had waived its objection to the
method of proof of the secondary electronic evidence. Having done so it
cannot do a volte face at a later stage of the proceedings. If the defence
is permitted to do so, it would cause prejudice to the prosecution for the
following reason. Had the objection been raised at the time of tendering
the evidence, prosecution would have had the opportunity to rectify the
defect and produce the certificate. Having not done so, it would be
unfair to permit the defence to rake up the issue at a subsequent stage
and spring a surprise on the prosecution.
46. For the aforesaid reasons, I hold CDRs/SDRs were lawfully
read into evidence in the absence of objection by the defence at the time
they were tendered and proved.
47. This leads us to a more serious question - what conclusions
may be drawn from the entries in the aforesaid CDRs/SDRs. The moot
question for consideration is the competence of the investigating officer
to draw a conclusion on the basis the entries in the CDRs that the
appellant and the victim were at the same places as the cell IDs noted
in the CDRs of the two mobile phones were same when telephone calls
were made between 4:00 p.m. and 5:00 p.m.
48. A cellular network is based on four basic components:-
"(i) Base Transceiver Stations (BTSs), known as "cell towers"
and "cell sites";
(ii) Mobile Stations (MS), known as "cell phones" and "mobile
phones";
(iii) Mobile Switching Centre (MSC);
(iv) Public Switched Telephone Network (PSTN), for connection to
wired telephones."7
49. The mobile phone is essentially a wireless telephone which
transmits to and receives from cell tower audio, text and data. In order
to communicate with the service provider's cell tower, the cell phone is
Thomas A. O'Malley, 'Using Historical Cell Sites Analysis Evidence in Criminal Trials' (2011) 59 US
Att'ys Bull 16 [see page 19]
programmed with various channel-access technologies e.g., Code
Division Multiple Access (CDMA) or Global System for Mobile
Communication (GSM).
50. CDRs are the service provider's business records of a
particular mobile phone's location and communication activity over time
within the provider's network. It contains date, time and location
information of the cell phone. Cell tower and cell sector information are
coded in the CDRs as cell ID. Cell ID in the CDRs denotes a unique
number used to identify a BTS or a sector of a BTS from which the
mobile phone receives or sends signals. It contains a code and not
recognisable geographic coordinates. Service providers maintain records
containing the geographical location and orientation of all cell towers
that is BTS in their network. To interpret the cell IDs and identify the
actual geographic coordinates of the cell tower, examination of a
competent person from the end of the service provider is necessary to
identify precise geographical coordinates of the tower.
51. It may not be out of place to note that the range of a cell tower
is dependent on number of variables as follows8:-
"(i) How high the antenna is over the surrounding landscape;
(ii) The frequency of the signal in use;
(iii) The rated power of the transmitter;
Millman National Land Services, 'What is a Cell Tower and How Does a Cell Tower Work?' (12th May,
2020),< https://millmanland.com/company-news/what-is-a-cell-tower-and-how-does-a-cell-tower-work/>
accessed 10th February, 2023
(iv) The directional characteristic of the antenna array on the
site;
(v) Nearby buildings and vegetation absorbing and reflecting
radio energy;
(vi) The local geographical or regulatory factors and weather
conditions."
52. Analysis of the CDRs/SDRs show telephone calls were made
between the two mobile numbers as follows:-
i. Calls were made from 8017481635 (belonging to the mother
of the victim) to 9051738821 (belonging to the appellant) at
16:03 hours and 16:08 hours respectively;
ii. One call was made from 9051738821 (belonging to the
appellant) to 8017481635 (belonging to the mother of the
victim) at 17:14 hours and
iii. Identical cell IDs were noted in the CDRs with regard to
each set of phone calls.
53. The data in (iii) leads to the inference that both mobile phones
received signals from the same cell tower i.e. Base Transceiver Station
(BTS) when the phone calls were made. Would this lead to the inference
that the users of both the phones were at the same place? Investigating
officer by no stretch of imagination can be treated to be an expert on
this issue who had specialized knowledge with regard to the range and
other operational factors of the cell towers to opine both the users were
at the same place. It would be extremely dangerous and wholly
unwarranted to rely on his evidence in this regard. Only a competent
person from the service provider could have enlightened the Court
about the range and geographical location on the cell tower which
corresponded to the cell IDs noted in the CDRs and opine whether it
would be reasonable to conclude on such date that the appellant and
the victim were at the same place. In Wilder vs. Maryland9 the Appellate
Court of Maryland labelled detective's testimony regarding location of
cell phone records as lay evidence and not expert testimony. Hence,
Investigating Officer's opinion that the appellant and the victim were at
the same place as the cell IDs in the CDRs matched is mere speculation
of a lay person. In the absence of expert opinion of a competent witness
from the service provider regarding the range, topography and
geographic coordinates of the cell tower/ BTS corresponding to the cell
IDs, no reasonable conclusion that the appellant and the victim were
together could be arrived at. Trial Court relied on mere speculation of a
lay witness to come to the inference that the appellant and the victim
were at the same place in the evening of 03.01.2012.
(b) Call received by Ashima Patra P.W. 17:-
54. Another circumstance relied by the prosecution to connect the
appellant to the rape and murder of the deceased is that Ashima Patra
(P.W. 17), aunt of the deceased received a phone call around 9:30 PM on
the day of the latter's disappearance. A male voice told P.W. 17 he had
191 Md. App. 319, 368-69 (Md. Ct. Spec. App. 2010)
married Mana and they were living happily at Santipur. Apart from the
oral evidence of the relations of the deceased no other corroborative
material is placed on record to prove this fact.
55. On the next day, a missing diary came to be lodged at
Chanditala Police Station. The said missing diary has not been
produced in Court. But P.W. 13, father of the deceased, admitted the
aforesaid vital fact was not disclosed in the missing diary.
56. A police officer of Chanditala Police Station is said to have
made enquiries about the phone call. The said officer was neither
interrogated during investigation nor examined in trial. Mobile phone of
P.W. 17 was not seized during investigation to verify such fact. Failure
to examine the enquiry officer or to verify the call list in the mobile
phone of P.W. 17 amounts to withholding of best evidence which casts a
doubt on the credibility of the aforesaid circumstance.
57. That apart, source of phone call is shrouded in mystery. While
P.W. 5 claimed the enquiry officer told him that the phone call came
from a phone booth near Baidyabati Railway Station, P.W. 16 claimed
that the call had come from a mobile phone and he found the phone
switched off.
58. Even identity of the voice has not been established as that of
the appellant, though it is the prosecution case that he was known to
the relations of the deceased including Ashima and had even worked at
her house.
59. Prosecution argued appellant had worked at the residence of
Ashima (P.W. 17) and Haladhar (P.W. 13), father of the deceased. He
knew the nickname of the deceased as Mana. Hence, it may be inferred
he made the call. This inference is farfetched. Evidence has come on
record that Keya used to go out and work in a jewellery store. She had
many friends and it would be incorrect to presume that her nickname
was known only to the appellant.
60. For the aforesaid reasons I hold prosecution has failed to
prove that it was the appellant who had made a phone call to P.W. 17 at
9:30 PM on 03.01.2012 and claimed that he had married Mana.
(c) Recoveries pursuant to the disclosure statements of
appellant whether reliable?
61. Prosecution has relied on two sets of recoveries:- one on
12.01.12 and the other on 13.01.12. It is contended appellant was
arrested on 10.01.2012 from his residence. He was taken into police
custody. On 12.01.12 he made a disclosure statement that he had
thrown the purse and certificates wrapped in a plastic pouch in a bush
beside the railway track between Sheoraphuli and Baidyabati. To work
out the statement he was taken to a spot on NCM Road opposite the
house of Shyamal Chatterjee P.W. 10. It is claimed on his showing a red
purse, certificates and handkerchief along with plastic pouch were
recovered. Recoveries were witnessed by P.W. 21, Soumitra Ta, a police
officer attached to Sheoraphuli TOP and local witnesses namely, P.Ws.
9, 10 and 11.
62. Prosecution case regarding the recovery suffers from various
incongruities. As per prosecution incident occurred on 03.01.2012.
Recovery was made after 9 days from an open place accessible to all
which does not rule out the possibility of planting.
63. Evidence of the independent witnesses are also not consistent.
PW9 was not present at the time of recovery. Police told her they had
recovered the purse and certificates and, on their statement, she signed
the seizure list.
64. P.W. 10 was unable to identify any of the articles in Court.
Though P.W. 11 identified the articles, he admitted in cross-
examination that the purse did not bear any label. The said purse has
not been identified by any of the relations including the mother and
aunt of Keya. It would be argued that the certificates allegedly recovered
stood in the name of Keya. None of the witnesses, particularly, the
mother (P.W. 18) and aunt (P.W. 17) who saw Keya leave the house
claimed that she was carrying her certificates. The shape and size of the
certificates (Exhibit - 12 series) are such that they could not have been
stuffed into the purse unless folded. I have examined Exhibit - 12
series. The documents do not bear any mark of folding. Keya claimed to
her mother and aunt she was going out to Teliamore. Had she carried
the certificates in her hand the said witnesses would have naturally
noted and enquired about the same. This improbabilises the fact that
Keya had carried the certificates with her when she went out of her
residence. There is another incongruity in the alleged recovery. Police
witnesses claimed that the certificates and purse were kept inside a
plastic bag and thrown into the drain. None of the independent
witnesses corroborate such fact. On the other hand, P.W. 11 claimed
that he had supplied a plastic bag to the police officers though he could
not say whether the said bag was present in Court. This demolishes the
prosecution case that the certificates and purse kept inside a plastic
bag were recovered on the showing of the appellant.
65. The other recovery is equally unconvincing. It is claimed on
13.01.2012 the appellant made further a disclosure statement leading
to recovery of weapon of offence, i.e., katari and a cardigan of the
deceased from a spot near the pond where the body was found. As
discussed earlier, body was recovered on 05.01.2012. Police had
immediately swung into action. P.W. 26 had visited the place of
occurrence. He inspected the site and drew up rough sketch map of the
place of occurrence. He interrogated the owner (P.W. 8). Strangely,
inspite of such efforts he did not notice the katari or cardigan which is
said to have been recovered from a spot beside the place of occurrence
after a week. P.Ws. 22 and 23 were examined as independent witnesses.
During cross-examination, it revealed they are not local people and
pocket witnesses of the police. They had deposed in other police cases
too. One of them (P.W. 22) could not even identify the seized katari and
cardigan in Court. Recovery of the said articles appears to be highly
artificial and do not inspire confidence.
66. Even the deposition of P.W. 24, Mohan Karmakar, a dealer in
scissors, knifes etc. is very vague. He deposed police brought appellant
who stated he had sharpened the katari in his shop. He did not identify
the appellant in Court. In fact, it would be most improbable for the said
witness to have identified the appellant as was not a regular customer.
Even his identification of the katari is suspicious. In cross-examination,
he admitted there was no special identification mark by which he could
have identified the instrument. Purchase of the katari and its recovery
along with the cardigan has not been proved beyond doubt.
67. Under such circumstances, presence of blood on the katari in
question as per FSL report would not implicate the appellant as the
perpetrator of the crime.
Conclusion:-
68. In the light of the aforesaid discussion, I am of the opinion
most of the incriminating circumstances relied upon by the prosecution
are either based on inadmissible evidence or vague surmises which
cannot be the substitute of proof. It is trite that suspicion howsoever
high cannot take the place of proof. One cannot lose sight of the fact
that the incident was a heinous one but graver the crime stricter should
be the proof which the prosecution has failed to discharge.
69. Hence, I am constrained to extend the benefit of doubt to the
appellant. Conviction and sentence of the appellant are set aside.
70. The appeal is accordingly, allowed.
71. The appellant, Bechuram Bag, shall be forthwith released
from custody, if not wanted in any other case, upon execution of a bond
to the satisfaction of the trial Court which shall remain in force for a
period of six months in terms of section 437A of the Code of Criminal
Procedure.
72. Let a copy of this judgment along with the lower court records
be forthwith sent down to the trial Court at once.
73. Photostat certified copy of this judgment, if applied for, shall
be made available to the appellant upon completion of all formalities.
I agree.
(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)
PA
