Calcutta High Court (Appellete Side)
The Hon'Ble Court In Its Own Motion vs Raju Wilson @ Moni on 11 January, 2023
1
IN THE HIGH COURT AT CALCUTTA
Criminal Miscellaneous Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
CRR 4064 of 2022
The Hon'ble Court in Its Own Motion
Vs.
Raju Wilson @ Moni
In
CRA 502 of 2012
Raju Wilson @ Moni
Vs.
The State of West Bengal
With
CRA 243 of 2012
With
CRAN 5 of 2015 (Old No: CRAN 2082 of 2015)
With
CRAN 8 of 2021
Sarbar Hossain @ Sheru Ali & Ors
Vs.
The State of West Bengal
For the Appellant : Mr. Habibur Rahman, Adv.
In CRA 502 of 2012
Amicus Curia : Mr. Arnab Chatterjee, Adv.
In CRA 502 of 2012
For the Appellants : Mr. Fazlur Rahaman, Adv.
In CRA 243 of 2012 : Mr. Md. Babul Hussain, Adv.
: Ms. Debjani Roy Chowdhury, Adv.
2
For the State : Mr. Sanjay Banerjee, Adv.
Ms. Pushpita Saha, Adv.
Hearing Concluded on : December 14, 2022
Judgement on : January 11, 2023
DEBANGSU BASAK, J.:-
1.
Two appeals were heard analogously as they emanated
out of the same impugned judgement of conviction and the
order of sentence. By the impugned judgement of conviction
dated February 29, 2012 and the order of sentence dated
March 1, 2012 the appellants were convicted under section
396 of the Indian Penal Code, 1860 and sentenced to life
imprisonment.
2. The case of the prosecution was that on June 9, 2005,
the duty officer of the jurisdictional police station received a
telephonic message from one Deepak Verma who reported that
when he visited flat number 18, third-floor, 6, Bishop Lefroy
Road, Kolkata, he found the main door of the flat ajar and
despite knocking he did not receive any response. The police
responded to such telephonic information and reached the
place of occurrence. Upon entering the flat through the main
door which was open, it was found that the victim was lying
on the floor of the dining room with her hands and feet tied
with from bedsheets. She was identified. Upon inspection of
the flat, the almirahs were found ransacked and various
articles like clothes, antique jewellery boxes and bundles of
cash were found scattered. A cardboard box with the name of
Mr. Sundaram written on it was found.
3. A First Information Report was registered on June 9,
2005 with regard to the incident. On completion of the
investigations, the police submitted a charge sheet against the
appellants and a juvenile. Charges were framed against the
appellants for commission of offences punishable under
section 396 read with section 120 B or alternatively section
302 read with section 120 B of the Indian Penal Code, 1860.
The appellants pleaded not guilty and claimed to be tried.
4. At the trial, the prosecution examined 31 witnesses.
On conclusion of the prosecution evidence, the appellants
were examined under section 313 of the Criminal Procedure
Code where they pleaded to be innocent.
5. CRA number 243 of 2012 was filed by Sarbar Hossain
@ Sheru Ali, Sk. Zahid @ Bapi, and Suresh Nayak. For the
sake of convenience, they are referred to as the first set of
appellants wherever appropriate. CRA 502 of 2012 was filed
by Raju Wilson. For the sake of convenience, he is referred to
as the second appellant wherever appropriate.
6. The second appellant was found absent on various
dates of hearing of the appeals. Consequently, a Rule was
issued against him and amicus curia was appointed. The
second appellant responded to the Rule and was represented
by his advocate subsequently.
7. The first set of appellants and the second appellant
were heard at length. Learned advocates appearing for them
advanced elaborate arguments on their behalf. The amicus
curia was also heard. They were heard on the alternative
charges under Sections 396/120B and 302/120B of the
Indian Penal Code, 1806.
8. Learned advocate appearing for the first set of
appellants submitted that, section 396 of the Indian Penal
Code, 1860 was not attracted in the facts and circumstances
of the present case. He submitted that, in order to attract the
provisions of section 396 of the Indian Penal Code, 1860,
presence of five persons at the time of commission of the
offence was required to be established. In the facts of the
present case, the prosecution failed to establish presence of
five persons at the place of occurrence and at the commission
of the offence. The prosecution failed to establish involvement
of 5 or more persons in the charges alleged. Therefore, section
396 of the Indian Penal Code 1860 was not attracted.
9. That apart, learned advocate appearing for the first set
of appellants contended that, the prosecution failed to
establish the charges beyond reasonable doubt. The
prosecution witnesses were either interested witnesses or
pocket witnesses. No independent witness was examined on
behalf of the prosecution. There was no eyewitness to the
incident. Prosecution did not produce any witness claiming
such witness to be an eyewitness to the incident. Therefore,
no reliance should be placed on the evidence led by the
prosecution at the trial.
10. Referring to the quality of the evidence led by the
prosecution of the trial, learned advocate appearing for the
first set of appellants submitted that, one of the prosecution
witnesses allegedly saw four persons to go up on the lift and
to exit the building through the lift. Such prosecution
witnesses did not describe the distinguishing features of any
of the first set of appellants. Therefore, the so-called
identification of the first set of appellants at the test
identification parade or in the Court was suspect.
11. Referring to the test identification parade of the first
set of appellants, learned advocate appearing for them,
submitted that, although, the date of the incident was of June
9, 2005, the test identification parade was held on July 22,
2005. The delay in holding the test identification parade
vitiated the same.
12. Learned advocate appearing for the first set of
appellant submitted that, when two views are possible, then,
the view which favours the accused should be accepted. In the
facts and circumstances of the present case, the Court should
grant the benefit of doubt to the appellants as, none of the
prosecution witnesses can say with certainty that, any of the
first set of appellants were last seen with the victim.
13. Learned advocate appearing for the first set of
appellant submitted that, there was a delay in discovery of the
dead body. There was considerable time period lapsing
between the time when the first set of appellants allegedly
went to the flat of the victim and the discovery of the dead
body of the victim at the flat. There was the possibility of
others intervening between that time. Therefore, the trial
Court erred in convicting the appellants.
14. Learned advocate appearing for the first set of
appellant submitted that, the author of the First Information
Report (FIR) was not examined. The Court should take adverse
inference with regard to non-examination of the maker of the
First Information Report. Moreover, the benefit of doubt
should be granted to the first set of appellants.
15. Learned advocate appearing for the first set of
appellants submitted that, the first set of appellants were in
custody for 22 years. The period of detention of the first set of
appellants should be taken into consideration also.
16. In support of his contentions, learned advocate
appearing for the first side of appellants relied upon 1983
Volume 2 Supreme Court Cases 65 (Ram Lakhan Vs. State
of U.P), 2008 Volume 11 Supreme Court Cases 709 (Raj
Kumar @ Raju Vs. State of Uttaranchal), 2015 Volume 7
Supreme Court Cases 167 (Manmeet Singh @ Goldie Vs.
State of Punjab), 1993 Supp (2) Supreme Court Cases 697
(Tahir Mohammad Kamad Girendra Singh & Anr. Vs.
State of M.P.), 1995 Supp (4) Supreme Court Cases 448
(Satrughana @ Satrughana Parida Vs. State of Orissa),
1984 Supp Supreme Court Cases 625 (Bali Ahir & Ors.
Vs. State of Bihar), 2003 SCC Online AP 1257 (Rapani
Laxmi and Others Vs. State of A.P), 1995 SCC Online Cal
440 (Islam Molla Vs. State of West Bengal), 2019 Volume
4 SCC 522 (Digamber Vaishnav & Anr. Vs. State of
Chattisgarh), 1977 Volume 2 Supreme Court Cases 210
(Magan Bihari Lal Vs. State of Punjab), 2001 Volume 3
Supreme Court Cases 451 (Kanhai Mishra @ Kanhaiya
Misar Vs. State of Bihar) and 1973 Volume 2 Supreme
Court Cases 808 (Kali Ram Vs. State of Himachal
Pradesh).
17. According to the learned advocate appearing for the
first set of appellants, the prosecution could not establish the
charges beyond reasonable doubt. Therefore, the first set of
appellants should be acquitted.
18. Learned amicus curiae for the second appellant
submitted that, the prosecution witnesses disclosed presence
of four persons at the place of occurrence. He referred to the
definition of dacoity under section 391 of the Indian Penal
Code, 1860. Since five persons were not established to be
present at the place of occurrence, conviction under section
396 of the Indian Penal Code, 1860 was not tenable.
19. Learned amicus curia submitted that, the prosecution
did not produce any eyewitness to the incident. He submitted
that, based on the evidence placed by the prosecution at the
trial, the conviction of the appellants for either murder or
robbery is untenable.
20. Learned amicus curia highlighted the various
discrepancies and embellishments in the testimonies of the
prosecution witnesses. He submitted that, the charges framed
against the appellant suffer from absence of material
particulars. In such circumstances, he submitted that, the
appellants should be acquitted.
21. Learned amicus curia relied upon 1971 Volume 2
Supreme Court Cases 75 (Matru @ Girish Chandra Vs.
State of Uttar Pradesh) in support of his contentions.
22. Learned advocate appearing for the second appellant
submitted that, the case of the prosecution was based upon
circumstantial evidence. The prosecution failed to prove
beyond reasonable doubt each and every chain of the
events/circumstances leading to the guilt of the second
appellant.
23. Learned advocate appearing for the second set of
appellant relied upon 2012 Volume 7 Supreme Court Cases
45 (Brijesh Mavi Vs. State of NCT of Delhi), 2014 Volume 7
Supreme Court Cases 405 (Umakant & Another Vs. State
of Chattisgarh) and 2013 Volume 12 Supreme Court Cases
503 (Tejinder Singh Vs. State of Punjab) in support of his
contentions.
24. Learned advocate appearing for the State submitted
that, though the case was based on circumstantial evidence,
the prosecution succeeded in proving the interaction of events.
The prosecution was able to establish the presence of the four
appellants at the time and place of occurrence along with the
motive behind the murder and robbery. He submitted that,
the recovery of various articles from each of the appellants
which belonged to the victim and identified by the daughter of
the victim, established beyond reasonable doubt, the guilt of
the appellants. He referred to the testimonies of the various
prosecution witnesses. He submitted that, none of the
appellants during the examination under section 313 of the
Criminal Procedure Code, provided any explanation as to how
the articles belonging to the victim came to be recovered from
their possession. He submitted that, five independent
witnesses without any interest in the outcome of the case,
identified the appellants either going to the apartment of the
victim, were speaking to the victim or leaving the building. The
second appellant was identified as the person who carried the
bag on the way out. Two witnesses identified the juvenile who
was seen talking to the first set of appellants 2 to 3 days prior
to the incident.
25. Learned advocate appearing for the State submitted
that, the trial Court framed an alternative charge under
section 302 read with section 120 B of the Indian Penal Code,
1860 against the appellants. Since, the appellants contended
that, conviction under section 396 of the Indian Penal Code,
1860 was untenable, the appeals and the appellants should
be heard on the alternative charge also. He submitted that, all
the appellants were last seen with the victim. The victim was
murdered. Therefore, the charge of murder as against the
appellants stood established at the trial. The appellants at the
basic minimum should be convicted on the charge of murder.
26. Learned advocate appearing for the first set of
appellants in reply submitted that, recovery of stolen articles
can raise an inference in view of illustration (a) to section 114
of the Evidence Act that, the appellants were the receivers of
stolen property or were persons who committed the theft. He
relied upon 2012 Volume 2 Supreme Court Cases 584 (
Mohd. Hossain @ Zulfikar Vs. State), 2022 SCC Online SC
1558 (Giressan Nair Vs. State of Kerala), 1952 Volume 2
Supreme Court Cases 641 (Sanwat Khan & Ors. Vs. State
of Rajasthan), 2021 Volume 4 Supreme Court Cases 345
(Hari Om @ Hero Vs. State of UIttar Pradesh), 2018 SCC
Online Cal 16830 (Sk. Shanawaz Vs. State of West
Bengal), and the judgement and order dated February 28,
2022 passed in CRA 380 of 2017 (Iman Ali Mondal @
Tanmoy Halder Vs. State of West Bengal).
27. At the trial, the police personnel who visited the place
of occurrence and took photographs of the place of
occurrence, deposed as PW 1. He deposed as to the manner of
the photographs being taken and tendered the photographs
with the negatives as exhibits at the trial. He was cross-
examined at length on behalf of the defence.
28. The police personnel who drew the sketch plan of the
place of occurrence deposed as PW 2. He stated as to how he
prepared the sketch map and the final map of the place of
occurrence. He described the place of occurrence. He was
cross-examined at length on behalf of the defence.
29. The security guard of the building deposed as PW 3.
He described the nature of his duties. He stated that, on June
9, 2005, he was on duty from about 10:30 AM when, at about
12 noon, one person came to the building. He asked such
person where he wanted to go when such person replied that
he wanted to go to the flat of the victim. He allowed such
person to go forward. Such person came back after an interval
of 5/6 minutes and went away. Thereafter, at about 1:30 PM,
four persons came when again; he asked such four persons
where they wanted to go. Out of the four persons, one person
told him that, they were from a courier service and wanted to
go to the flat of the victim. He allowed them to proceed. At
about 2:30 PM when he was gossiping with the electrician of
the building, who deposed as PW 6, and a motor mechanic,
the four persons who went inside the building at about 1:30
PM, went out of the building. Out of such four persons, he
found one person to be carrying a bag. At about 5:30 PM,
another person came when he asked such person where he
wanted to go, such person said that he wanted to visit the flat
of the victim whereupon, he allowed such person to proceed.
Such person returned hurriedly and told him that, such
person used the calling bell of the flat of the victim and
knocked on the door but no reply was received from inside
although the door of the flat was open. Such person went
away by saying that he wanted to inform the police.
30. PW 3 described the four persons who entered the
building to be aged below 30 years, one of them being black in
complexion while the complexions of the others were medium.
They were in pant and shirt. He identified the four persons as
Sarbar Hossain, Raju Wilson, Suresh Nayek and Sk. Zahid in
Court. He also identified them in the test identification
parade. He identified Sk. Zahid as the person who carried the
bag while the four persons were leaving the building. He
identified Raju Wilson as the person who talked to him at the
time when the four persons were returning from the building.
31. PW 3 was cross-examined in great detail by the
defence. They could not elicit anything favourable to them
from such cross-examination of PW 3.
32. The lift man of the building deposed as PW 4. He
stated that, on June 9, 2005, he was on duty from 10 AM to 8
PM. At about 11:30 A.M/12 noon, a person of about 30/32
years came to the building and told him that such person
would go to the flat of the victim. He carried such person to
the floor of the flat of the victim. After five minutes, such
person went away. At about 1:30 PM, four persons came and
told him that they would go to the flat of the victim for delivery
of a courier letter. He found a packet in the hands of one of
the four persons. The carrying capacity of the lift of the
building was four persons including the lift man. So he asked
one of the persons to wait for the next trip. However, they
claimed that they were not very heavy and can be
accommodated in the same lift. He took all four persons on
the lift on the same trip. The four persons alighted from the
lift on the floor of the flat of the victim. They pressed the
calling bell of the flat of the victim. At that point of time, he
went down with the lift. He stated that about 2:30 PM, the
four persons got down by using the staircase and went away.
He noticed one of them was with a black complexion carrying
a plastic carry bag. At about 5:30 PM, a person came in front
of the lift gate and told him that he would go to the flat of the
victim. He carried such person by lift, reached the floor of the
flat of the victim and thereafter he got down. After some time,
the security guard of the building told him that the person
who went to the flat of the victim told him that he pressed the
calling bell and knocked on the door of the flat but there was
no response from inside. The door of the flat was open. The
security guard asked him to go to the flat of the victim. As
such, he along with the security guard went to the fourth floor
and called Ranjan Mukherjee and Amar Bhakat. By this time,
the police came. He along with the security guard, Ranjan
Mukherjee and Amar Bhakat entered the flat where they
noticed that the household articles were ransacked and
scattered in a disorderly fashion. The almirahs were open and
the jewelry box was also open. They noticed that the body of
the victim was lying on the floor with mouth, hands and legs
tied by cloth. He stated that, the person who was carrying a
packet was aged about 20 to 30 years. The complexions of the
other persons were medium. They were wearing pant and
shirt. He went to the correctional home wherein a test
identification parade was held and he identified the five
persons in connection with the case. Out of the five persons,
he stated that, one of them was working with Super Fast
Courier Service which was situated on the roof of the building.
He identified four persons out of the five persons involved in
Court. He identified Sarbar Hossain, Sk. Zahid, Suresh Naik
and Raju Wilson in Court. He identified Sk. Zahid as the
person who carried the packet to the flat of the victim. He
identified Raju Wilson as the person who carried the black
carry bag in his hand.
33. PW 4 was cross-examined at great length on behalf of
the defence. They could not elicit anything favourable to them
in such cross-examination.
34. The sweeper of the building was examined as PW 5 at
the trial. He stated that, on June 9, 2005, at about 1/1:30
PM, his employer gave him Rs. 50 for bringing cold drinks. He
got down from the fourth floor to the ground floor. When he
got down, he found that four persons were standing in front of
the gate of the flat belonging to the victim. Such four persons
were talking to the victim. The victim talked with them by
opening the main door of the flat to some extent. He asked
them to give him passage when they looked at him and gave
him passage. After purchasing the cold drinks, during his
return to the fourth floor, 7/8 minutes after he got down from
the fourth floor, he noticed that none of the four persons
including the victim were present and that the door of the flat
of the victim was closed. He subsequently received news from
the lift man and the security guard at about 6:30 PM that the
victim was murdered. He described that out of the four
persons, one was black in complexion while the remaining
three were medium in complexion. They were aged about 24 to
30 years and wearing pant and shirt. He identified the four
persons at the correctional home during the test identification
parade. He identified Suresh Nayek, Raju Wilson, Sk. Zahid
and Sarbar Hossain as the four persons involved who were
standing in front of the flat of the victim and talking to the
victim. He was cross-examined at great length on behalf of the
defence. However, the defence could not elicit anything
favourable to them during such cross-examination.
35. The electrician deposed as PW 6. He stated that, he
resided at the same building. He worked as an electrician of
such building. He was working there for about 12/15 years.
On June 9, 2005, at about 9:30/10 A.M, he went to a different
place for electric repairing work and returned from there at
about 12:15 PM. Just after returning, he asked PW 3 as to
whether there was any enquiry for electric work from the
occupants of the building. The mechanic who was also
residing in the same premises came before PW 3. PW 3 replied
that no call in respect of electric work was made. While, he,
the security guard and the mechanic who were talking in front
of the main gate, they noticed that four persons left the
building. He described one of such person to be of black
complexion and carrying a black polythene bag in his hand.
PW 3 enquired of the four persons as to whether, they met the
victim. The black complexion person replied in the affirmative.
He identified the four persons involved to be Sk. Zahid, Raju
Wilson, Suresh Nayek and Sarbar Hossain. He identified the
person carrying the black polythene bag as Raju Wilson. He
was also cross-examined at great length by the defence.
However, they could not elicit anything favourable during
such cross-examination. In fact, during cross-examination, he
narrated as to how, the test identification parade was carried
out. He denied talking to any of the other persons present
during the test identification parade.
36. The brother of Sarbar Hossain deposed as PW 7. He
identified his signature on Exhibit 2. He was declared hostile
by the prosecution. He identified his signature on the label
pasted on the envelope marked as Exhibit 3.
37. Another brother of Sarbar Hossain deposed as PW 8.
He did not add any substance to the case either of the
prosecution or the defence.
38. A witness to the seizure made on June 30, 2005 from
the house of Sk. Zahid deposed as PW 9. He identified his
signature on such seizure list which was marked as Exhibit
4/1. He stated that, Sk. Zahid was arrested on such date and
that, the articles listed in Exhibit 4/1 were seized from the
arrested person. He identified the arrested person in Court. He
identified his signature on the label of the seat cover which
was marked as Exhibit 5/1. He also identified his signature
on Exhibit 6/1, 7/1, 8/1, 9/1, 10/1 and 11/1. He stated that,
the room of Raju Wilson was also raided. He identified Raju
Wilson in Court.
39. PW 10 stated that, on June 25, 2005, Sarbar Hossain
came to the shop to exchange US$ 1200. PW 10 was asked by
such accused to keep the money till he got appropriate papers
for exchange. On June 30, 2005, at about 8 PM, police came
along with the accused person whereupon; he produced the
envelope containing the US$ 1200. The US dollars were
seized. He identified his signature on Exhibit 13/1 as also on
Exhibit 14/1.
40. A jewellery shop owner deposed as PW 11. He stated
that on June 11, 2005 at about 12 noon, Suresh Nayek came
to the shop and kept the gold bangles at mortgage and
obtained a sum of Rs. 10,000 from him. On June 13, 2005,
Anup Jadav came to the shop and obtained Rs. 5000 on
mortgage of one gold chain stating that Suresh Nayak sent
him. Police seized the gold bangles and the gold chain. He
identified the same in court. He identified various exhibits
also.
41. PW 12 witnessed the seizure made on July 3, 2005
and marked as Exhibit 23/1. He identified Albert Perier as the
person who was with the police.
42. PW 13 witnessed the seizure made on July 13, 2005.
He identified his signatures on the exhibits and also identified
the articles seized. He identified the accused as Albert Perier.
43. PW 14 witnessed the seizure made on July 7, 2005. He
identified his signature on the seizure list as Exhibit 26/1. He
disclosed that, the seizure was made in presence of Suresh
Nayek.
44. The judicial magistrate in whose presence, the test
identification parade was held on July 14, 2005 deposed as
PW 15. The judicial magistrate in presence of whom, the
signature of the four appellants was taken on July 6, 2005
deposed as PW 16.
45. The shop owner from where, the victim purchased a
mobile phone along with a sim card deposed as PW 17. A
witness of the seizure made on July 7, 2005 deposed as PW
18. A person who looked after the victim at the request of his
employer, deposed as PW 19. He stated that, he received a
phone call from his employer with regard to the mishap to the
victim on June 9, 2005. Immediately on receipt of such phone
call, he visited the residence of the victim and found the police
personnel and neighbours to be present there at. He stated
that, the victim used to wear gold ornaments which were
missing on the body of the victim lying on the floor. The police
made certain seizure which was witnessed by him. He stated
that, the victim purchased a mobile phone from the shop in
his presence. The victim also used a camera.
46. The daughter of the victim deposed as PW 20. She
identified various articles that were seized by the police as
those belonging to the victim. She was cross-examined in
great detail on behalf of the defence. The defence could not
elicit anything favourable to them on such cross-examination.
47. The handwriting expert deposed as PW 21. He
tendered his report in evidence which was marked as Exhibit
33. He also attended various Material Exhibits.
48. The doctor who conducted the post-mortem on the
body of the victim deposed as PW 22. He tendered the post-
mortem report of the victim which was marked as Exhibit 34.
He described the various injuries and the distinctive features
that he found on the body of the victim. He opined that, the
death of the victim was due to combined effects of head injury
and smothering. The death was ante-mortem and homicidal in
nature. He stated that, the injuries that he found on the body
of the victim were sufficient for instant death. According to
him, the injury number six described in his report was caused
by a heavy weighty blunt substance. The injury numbers one,
seven and eight were caused due to smothering by the
assailants. Such injuries on the body of the victim indicated
that the assailants were more than one. The post-mortem of
the body of the victim was held on June 10, 2005 at 1 PM. In
all probabilities, the death occurred 24 to 30 hours before the
post-mortem examination.
49. The person who was a witness to the seizure made on
the July 19, 2005 deposed as PW 23. He tendered the
signature on the seizure list as Exhibit 35. He also identified
the cash memo book which was marked as Exhibit 36.
50. The doctor before whom, the victim was first produced
at the hospital deposed as PW 24. She stated that, the victim
was brought dead to the hospital. She stated that, on
examination, she found the victim's both hands, both lower
limbs were tied with tone bedsheet pieces. Expulsion of
denture with injury overturns and lips with bleeding from
there were also found. She did not find any ligature mark over
the neck. One loose scarf over the neck of the victim and part
of the face, a few abrasion over face may be caused by nails
were also found. She referred to the post-mortem report. She
tendered the report which was marked as Exhibit 38.
51. The police personnel who held the inquest on the dead
body of the victim deposed as PW 25. She tendered the
inquest report which was marked as Exhibit 39. She stated
that the inquest of the dead body of the victim was held at the
morgue of the hospital in the presence of two witnesses who
were the son and daughter of the victim.
52. The police personnel who removed the body of the
victim to the hospital deposed as PW 26. He identified the
body of the victim before the doctor. On recall, he stated that,
he got the investigation power of the case on June 10, 2005.
He recorded the statement of witnesses as the investigating
officer and handed over the case diary to the officer in charge
of the police station as investigating officer on June 28, 2005.
53. One of the police personnel who was present on June
9, 2005 at the flat of the victim deposed as PW 27. He stated
that, he seized some articles from the flat of the victim in
presence of witnesses on such date and prepared a seizure list
with regard to the same. He identified the seizure list and the
articles seized.
54. The shop owner who sold a TV set to the victim
deposed as PW 28. He identified the TV set as well as the cash
memo which was issued in favour of Sk. Zahid.
55. A tenant of the victim deposed as PW 29. He stated
that, 2/3 days before June 9, 2005 he noticed that one of his
employees, a juvenile, gossiped with two persons on the top
about 20 cubits away from his office. He called the juvenile
and cautioned him that if the juvenile continued he would be
sacked. He identified the two persons who met the juvenile.
He stated that on June 9, 2005, he came to know that the
victim was murdered. He identified the two persons with
whom the juvenile was talking to be Raju Wilson and Albert
Perier.
56. One of the police personnel who responded to the
telephone call on June 9, 2005 deposed as PW 30. He was the
investigating officer. He deposed as to the manner of the
investigations carried out. He was cross-examined at length
on behalf of the defence. The defence could not elicit anything
favourable from him.
57. The second investigating officer who took over the
investigation on June 28, 2005 deposed as PW 31. He
narrated the conduct of the investigation under him. He spoke
about the arrest and seizure made. He was also cross-
examined at length on behalf of the defence. The defence
could not elicit anything favourable to them.
58. At the trial, the prosecution established particularly
through the evidence of PW 22 and Exhibit 34 that the victim
was murdered. The victim suffered a number of injuries. The
post-mortem doctor opined that, the injuries suffered were
sufficient to cause death. The appellants could not draw the
attention of the court to any material on record to suggest that
the death of the victim was not homicidal in nature.
59. The prosecution did not produce any eyewitnesses to
the murder. The prosecution relied on circumstantial evidence
and the circumstance of last seen together in order to bring
home the charges against the appellants. Moreover, articles
stolen from the possession of the victim were found with the
appellants.
60. On the aspect of the circumstance of last seen together
the Supreme Court in Digamber Vaishnav & Anr. (supra),
observed as follows:-
"40. The prosecution has relied upon the evidence of
PW 8 to show that the accused and victims were last
seen together. It is settled that the circumstance of last
seen together cannot by itself form the basis of holding
accused guilty of offence. If there is any credible
evidence that just before or immediately prior to the
death of the victims, they were last seen along with the
accused at or near about the place of occurrence, the
needle of suspicion would certainly point to the accused
being the culprits and this would be one of the strong
factors or circumstances inculpating them with the
alleged crime purported on the victims. However, if the
last seen evidence does not inspire the confidence or is
not trustworthy, there can be no conviction. To
constitute the last seen together factor as an
incriminating circumstance, there must be close
proximity between the time of seeing and recovery of
dead body.
41. In Arjun Marik v. State of Bihar [Arjun
Marik v. State of Bihar, 1994 Supp (2) SCC 372 : 1994
SCC (Cri) 1551] , it has been held as under: (SCC p.
385, para 31)
"31. Thus the evidence that the appellant had gone to
Sitaram in the evening of 19-7-1985 and had stayed in
the night at the house of deceased Sitaram is very
shaky and inconclusive. Even if it is accepted that they
were there it would at best amount to be the evidence
of the appellants having been seen last together with
the deceased. But it is settled law that the only
circumstance of last seen will not complete the chain of
circumstances to record the finding that it is consistent
only with the hypothesis of the guilt of the accused
and, therefore, no conviction on that basis alone can be
founded."
42. In Kanhaiya Lal v. State of Rajasthan [Kanhaiya
Lal v. State of Rajasthan, (2014) 4 SCC 715 : (2014) 2
SCC (Cri) 413] , the Court has reiterated that the last
seen together does not by itself lead to the inference
that it was the accused who committed the crime. It is
held thus: (SCC p. 719, para 12)
"12. The circumstance of last seen together does
not by itself and necessarily lead to the inference that it
was the accused who committed the crime. There must
be something more establishing connectivity between
the accused and the crime. Mere non-explanation on
the part of the appellant, in our considered opinion, by
itself cannot lead to proof of guilt against the
appellant.""
61. On circumstantial evidence forming basis of an order
of conviction, Kanhai Mishra @ Kanhaiya Misar (supra)
observed as follows :-
"5. It is a well-established rule in criminal
jurisprudence that circumstantial evidence can be
reasonably made the basis of an accused person's
conviction if it is of such a character that the same is
wholly inconsistent with innocence of the accused and
is consistent only with his guilt. The incriminating
circumstances for being used against the accused must
be such as to lead only to a hypothesis of guilt and
reasonably exclude every possibility of innocence of the
accused. In a case of circumstantial evidence the whole
endeavour and effort of the court should be to find out
whether the crime was committed by the accused and
the circumstances proved form themselves into a
complete chain unerringly pointing to the guilt of the
accused. If the circumstances proved against the
accused in a case are consistent either with the
innocence of the accused or with his guilt, he is entitled
to the benefit of doubt. Reference in this connection
may be made to a Constitution Bench judgment of this
Court in the case of M.G. Agarwal v. State of
Maharashtra [AIR 1963 SC 200 : (1963) 1 Cri LJ 235]
and recent decisions of this Court in the cases
of Ronny v. State of Maharashtra [(1998) 3 SCC 625 :
1998 SCC (Cri) 859] and Joseph v. State of
Kerala [(2000) 5 SCC 197 : 2000 SCC (Cri) 926] ."
62. Brijesh Mavi (supra) observed that, in respect of
establishing a criminal charge on circumstantial evidence, the
prosecution must prove and establish incriminating
circumstances against the accused beyond all reasonable
doubt and such circumstance must give rise to only one
conclusion to the exclusion of all others, namely, that it is the
accused and nobody else who committed the crime.
63. In the facts of the case, in Tejinder Singh (supra) the
Supreme Court found major discrepancies and contradictions
between the statements of one witness and the other. In such
circumstances, the conviction of the accused was not
sustained.
64. The circumstance of last seen together cannot by itself
form the basis of an order of conviction. In fact, if the last seen
evidence does not inspire evidence or is not trustworthy, there
cannot be any conviction. In order to constitute the last seen
together as an incriminating circumstance, there must be
close proximity between the time of last seen and the recovery
of the dead body. However, the last seen together
circumstance must be coupled with something more to
establish the connectivity between the accused and the crime.
Non-explanation by the accused in the statement under
Section 313 of the Criminal Procedure Code does not lead to
proof of guilt. The circumstances proved must form
themselves into a complete chain to unerringly point to the
guilt of the accused. The incriminating circumstances must be
such so as to lead to only one finding that is the guilt of the
accused and exclude every possibility of innocence of the
accused.
65. Keeping such parameters in mind, the evidence at the
trial was evaluated for the purpose of analysing whether the
appellants were guilty of murder of the victim or not.
66. The Security Guard of the building, deposed as PW 3.
He stated that, he saw the appellants in the two appeals to
enter into the building at about 1.30 P.M. He asked the
appellants involved in the two appeals as to where they
wanted to go when, they said that they wanted to go to the flat
of the victim. The lift man of the building deposed as PW 4. He
stated that, at about 1.30 P.M, the appellants involved in the
two appeals told him that they wanted to go to the flat of the
victim for delivery of a courier letter. He found a packet in the
hands of one of the appellants involved. He took the four
persons on the lift. The four appellants alighted from the lift
on the floor of the flat of the victim. PW 4 saw the four
appellants pressing the calling bell of the flat of the victim. At
that point of time he went down with the lift.
67. PW 5 who was the sweeper of the building saw the four
appellants at the gate of the flat of the victim when he was
climbing down the stairs to run an errand for the owner of the
flat upstairs. He saw the four appellants to be talking with the
victim. The main door of the flat of the victim was open to
some extent when the four appellants were talking with the
victim.
68. PW 3, 4 and 6 saw the appellants leave the building at
about 2.30 P.M with a bag. The victim was discovered dead at
around 5.30 P.M of the same day in her flat. No material on
record was drawn to our attention to suggest that the victim
met any other person subsequent to the appellants leaving the
victim. The victim was at her residence.
69. In such circumstances, the prosecution was able to
establish beyond reasonable doubt that, the four appellants
were last seen together with the victim. None of the four
appellants explained their conduct in their examination under
Section 313 of the Criminal Procedure Code.
70. Establishing that the appellants last seen together by
the victim by itself may not be sufficient so as to connect the
appellant with the crime. The failure of the appellants in
explaining their conduct, in their examination under Section
313 of the Criminal Procedure Code was of no consequence. In
order to connect the appellants with the crime, the
prosecution led evidence as to the recovery of stolen articles
belonging to the victim from the possession of the appellants.
According to the prosecution, the appellants murdered the
victim and stole valuables belonging to her. Both the murder
and the stealing by the appellants were established by the
prosecution at the trial.
71. The appellant Sarbar Hossain was arrested from his
residence on June 13, 2005. A mobile phone being Nokia
3310 of the victim was seized from Sarbar Hossain in
presence of witnesses. The Nokia phone of the victim was
identified as belonging to the victim by the daughter of the
victim.
72. The appellant Sarbar Hossain revealed the names of
Sk. Zahid and Raju Wilson during his interrogation. Being
accompanied by Sarbar Hossain, the Investigating Officer, PW
31, arrested Sk. Zahid and Raju Wilson. In terms of the
leading statements of Sk. Zahid, PW 31 seized two cameras
belonging to the victim from the house of Sk. Zahid. The
cameras were identified to be belonging to the victim by the
daughter of the victim.
73. Pursuant to the leading statement made by the
appellant Raju Wilson, PW 31 seized a silver necklace, 2 coins,
5 pieces of U.S dollars, 5 pieces of coins, 3 pieces of Honkong
coins, and one golden purse. These articles were identified by
the daughter of the victim as belonginig to the victim. These
items were recovered, as noted above, on the leading
statement made by Raju Wilson.
74. Raju Wilson revealed the names of Suresh Nayek who
was arrested on June 30, 2005. On interrogation of Suresh
Nayek, the name of Albert Perier came to light. He made a
leading statement being Exhibit 53 on July 3, 2005
whereupon, a Kodak Camera and a wrist watch was recovered
from his room.
75. On July 7, 2005, Suresh Nayek disclosed the
whereabouts of other stolen articles which were pledged for
money. The leading statement was marked as Exhibit 56.
Mortgage receipts were collected from the room of Suresh
Nayek. On the same day Suresh led to PW 11 whereupon 4
pieces of bangles were seized.
76. On July 13, 2005, Albert Perier made a statement
which led to the recovery of a red velvet pouch from his room.
Such pouch contained ornaments like Mangalsutra, gold
necklace, gold bracelet, one Laxmi idol of silver, 7 pieces of
one rupee coins. One life member memento, one silver idol of
Gopal and one memento containing the inscription of "Rotary
Club of Calcutta, Midtown".
77. The articles that were recovered on the leading
statements made by the appellants were identified by the
daughter of the victim in Court as articles belonging to the
victim.
78. Sanwat Khan (supra) dealt with a conviction based
upon recovery of articles at the instance of the accused. It
observed that, no hard and fast rule can be laid down as to
what interference should be drawn from a certain
circumstance. Where, however, the only evidence against an
accused person was the recovery of stolen property and
although the circumstances may indicate that the theft and
the murder were committed at the same time, it was not safe
to draw the inference that the person in possession of the
stolen property was the murderer. Suspicion cannot take
place of proof.
79. In the facts and circumstances of the present case, not
only articles belonging to the victim were recovered from the
possession of the appellants but the appellants were also last
seen together with the victim immediately before the victim
was found murdered. The amalgam of the appellants being of
the factual matrix of the last seen together with victim and the
recovery of articles belonging to the victim their leading
statements negates the hypothesis of the innocence.
80. In such circumstances, it can be safely inferred that,
the appellants were last seen together with the victim and
were involved in the murder of the victim and that they stole
articles belonging to the victim.
81. A juvenile was also involved in the present police case
along with the appellants. The juvenile was sent to the
Juvenile Justice Board to stand trial. Apparently, there was
no progress at the Juvenile Justice Board with regard to the
trial and therefore, the juvenile was discharged.
82. Another person who was charged along with the
appellants as participants in the dacoity with murder was
found to be the receiver of the stolen goods by the Trial Court.
The State did not prefer any appeal from such findings. The
prosecution failed to establish that, there were five persons
involved in the dacoity and murder of the victim.
83. Ram Lakhan (supra), Raj Kumar @ Raju (supra) and
Manmeet Singh @ Goldie (supra), related to police cases
under Section 396 of the Indian Penal Code, 1860. In the facts
and circumstances of the present case, since, the prosecution
failed to establish the case at the trial that five persons were
involved, the question of provisions of Section 396 of the
Indian Penal Code, 1860 being attracted does not arise.
84. In Tahir Mohammad Kamad Girendra Singh &
Anr. (supra), the accused were put on fetters on their legs
connected with an iron rod and mixed up with unfettered
undertrial prisoners. In such circumstances, the test
identification parade and the evidence thereto was held to be
unreliable.
85. In Satrughana @ Satrughana Parida (supra) there
was unexplained delay in holding the test identification
parade. In the facts and circumstances of that case, it was
found that such unexplained delay adversely affected the
value of the evidence of identification.
86. In Bali Ahir & Ors. (supra) the appellants belonged to
the neighbouring village of the witnesses who came to identify
the appellants. Moreover, the witness who knew one of the
accused from before did not name such accused in the First
Information Report and went to identify him. In such
circumstances, the identification of the accused was found to
be incorrect. The factual situation in the present case is
different.
87. In Rapani Laxmi and Others (supra) the Andhra
Pradesh High Court, in the facts of that case, found that the
test identification parade was not conducted in accordance
with Rule 34 of the Criminal Rules of Practice and Circular
Orders, 1990.
88. Gireesan Nair and Others (supra) dealt with test
identification parade. It observed that, the objective of
conducting a test identification parade is threefold. Firstly, it
is to enable the witnesses to satisfy themselves that the
accused whom they suspect was really the one who was seen
by them in connection with the crime. Secondly, to satisfy the
investigating authority that the suspect was the real person
whom the witnesses saw in connection with the occurrence.
Thirdly, to test the witnesses memory based on first
impression and enable the prosecution to decide whether all
or any of them could be cited as eyewitnesses to the crime.
89. In the facts and circumstances of the present case, the
date of the incident was June 9, 2005. The appellants were
arrested in two of tranches on June 30, 2005 and July 2,
2005. The test identification parade was held on July 22,
2005. In such circumstances, it cannot be said that, there
was undue delay or unexplained delay in holding the test
identification parade. The test identification parade was held
within twenty days from the date of the last arrest which was
affected on July 2, 2005. The accused were not put fetters at
the time of the test identification parade or were identified to
the witnesses prior to the test being held.
90. Mohd. Hussain (supra) dealt with right of under trials
to speedy trial and effective opportunity to defend at such
trial. It discussed the interplay of the two rights. It held that,
right of an accused to proper legal assistance must be
substantial and meaningful. It also observed that, although
speedy trial was desirable, it cannot be at the cost of the right
of the accused to defend oneself properly. In the facts of the
present case, all the accused were defended at the trial as also
during the hearing of the appeal. A number of witnesses were
examined at the trial. Cross examination of prosecution
witnesses were deferred on the prayer made on behalf of the
appellants. During the hearing of the appeals also, the
appellants were found absent on several dates of hearing. Rule
was issued as against the second appellant so as to ensure
that the appeals were heard in presence of the appellants. It
was after much ado that, the appeals were taken up for
hearing. The appellants employed dilatory tactics in delaying
the disposal of the appeals.
91. In Islam Molla (supra) the Division Bench found that
the search and seizure was not made in accordance with the
provisions laid down in the Code of Criminal Procedure.
Consequently, the order of conviction and sentence imposed
was set aside.
92. In Magan Bihari Lal (supra) the Supreme Court
observed that handwriting expert opinion cannot be the sole
basis for conviction, instead corroboration is necessary.
93. In Kali Ram (supra) the Supreme Court observed that
in case of two alternative views the Court should accept the
view favourable to the accused.
94. There was a dying declaration in Umakant & Another
(supra). It dealt with the admissibility of a dying declaration in
evidence. It noted the authorities of the Court on the issue of
dying declaration.
95. In Hari Om @ Hero (supra) the Supreme Court noted
various inconsistencies commissions and discrepancies in the
testimonies of the prosecution witnesses and therefore found
that the accused were entitled to benefit of doubt.
96. Sk. Shanawaz (supra) and Iman Ali Mondal @
Tanmoy Halder (supra) found several inconsistencies in the
witnesses of the prosecution and therefore extended the
benefit of the doubt to the appellants. In the facts and
circumstances of the present case, the prosecution
established the guilt of the appellants beyond reasonable
doubt and therefore the question of extending the benefit of
the doubt to the appellants or any of them does not arise.
97. As noted above, alternative charges were framed as
against the appellants under Section 120B/396 and
120B/302 of the Indian Penal Code, 1860.
98. Since 5 persons were not involved at least the
prosecution failed to establish the same the question of
convicting the appellants under Section 396 of the Indian
Penal Code, 1860 did not arise.
99. The learned Judge proceeded to convict the appellants
under Section 396/120B of the Indian Penal Code, 1860 by
the impugned order of conviction and proceeded to award
sentence thereunder by the impugned order of sentence.
100. However, the charge of murder as against the
appellants stood established at the trial in light of the
discussions as noted above. The appellants were heard on the
charge of murder in these appeals also.
101. In such circumstances, we find the appellants guilty of
murder under Section 302/120B of the Indian Penal Code,
1860 and sentence the appellants to suffer life imprisonment
and to pay a fine of Rs. 5,000/- each in default to undergo
further rigorous imprisonment for a period of six months.
102. Period of detention suffered by the appellants during
investigation, enquiry and trial shall be set off against the
substantive sentence imposed upon them in terms of Section
428 of the Code of Criminal Procedure.
103. The appellants who are on bail during the pendency of
the appeals will surrender within a fortnight from date to
serve the remainder of the sentence. Failing the surrender, the
jurisdictional Court will take appropriate steps.
104. CRR 4064 of 2022 in CRA 502 of 2012 with CRA 243
of 2012 are disposed of accordingly. All connected applications
including CRAN 5 of 2015 (Old No: CRAN 2082 of 2015) and
CRAN 8 of 2021 in CRA 243 of 2012 are also disposed of
accordingly.
105. Trial Court records along with a copy of this judgement
and order be sent down at once to the appropriate Court for
necessary action.
106. Rule issued against Raju Wilson stands discharged.
107. Photostat certified copy of this order, if applied for, be
given to the parties on priority basis on compliance of all
formalities.
[DEBANGSU BASAK, J.]
108. I agree.
[MD. SHABBAR RASHIDI, J]
