Calcutta High Court (Appellete Side)
Md. Farmood vs The State Of West Bengal on 18 May, 2023
In the hIgh Court at CalCutta
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
and
The Hon'ble Justice Md. Shabbar Rashidi
CRA (DB) 65 of 2022
With IA No.: CRAN 1 of 2022
Md. Farmood........ Appellant (in jail)
Versus
The State of West Bengal
For the appellant : Mr. Bibaswan Bhattacharyya,
Ld. Amicus Curiae.
For the State : Ms. Trina Mitra, Adv.
Hearing concluded on : April 20, 2023
Judgment on : May 18, 2023
Md. Shabbar Rashidi, J.
1. The appeal is directed against the judgment of
conviction dated May 26, 2010 and order of sentence dated
May 27, 2010 passed by the learned Additional Sessions
Judge, 2nd Fast Track Court, Alipore, South 24 Parganas in
connection with Sessions Trial No. 2 (7) of 2003 arising out
of Sessions Case No. 45 (3) of 2003.
2. By the impugned judgment of conviction, the
appellant was found guilty and convicted for the offences
punishable under Section 302/394/201 of the Indian
Penal Code. By the impugned order of sentence, he was
sentenced to suffer imprisonment for life and a fine of Rs.
20,000/- and in default of fine to suffer imprisonment for
another two years for the offence punishable under
section 394 of the Indian Penal Code. The appellant was
also sentenced to life imprisonment and a fine of Rs.
25,000/- and in default of payment of fine to undergo
imprisonment for another period of two years for the
offence punishable under Section 302 of the Indian Penal
Code. He was further sentenced to undergo
imprisonment for seven years and to pay a fine of Rs.
10,000/- and in default of payment of fine to undergo
further imprisonment for one year for the offence
punishable under Section 201 of the Indian Penal Code.
3. It may be noted that while undergoing the
sentences so awarded, the unexpired period of sentence
of the appellant was remitted by the State in terms of the
provisions of Section 432 of the Criminal Procedure Code,
1973 and he was released on December 24, 2022 in
terms of the Judicial Department, Government of West
Bengal Order No.731-JL/JDL/16M-22/2022 dated
December 23, 2022.
4. PW 1 lodged a written complaint with the officer in
charge, Tiljala Police Station on September 10, 2002
stating inter alia that on September 9, 2002 at about
10.00 a.m. a phone call from one Farmood of 25/A,
Topsia Road, Calcutta 39 was received at his uncle's
house asking to talk to the cousin of PW 1 namely Md.
Samir who used to live in the same house at 8/A,
Ostagar Lane Kolkata - 14.
5. The written complaint also disclosed that after
having talks with Farmood, Md. Samir left the house to
meet him. When he did not return until late night, PW 1
and others and started looking for, Md. Samir. Having
found no trace of him, PW 1 lodged a GDE at Beniapukur
at about 5.00 a.m. on September 10, 2002. They also
kept on searching for Md. Samir. At about 2.00 p.m. PW
1 received an information that Farmood and his
associates have killed Md. Samir at 25/A, Topsia Road,
Bansbagan under Tiljala PS.
6. On the basis of such written complaint Tiljala PS
Case No. 286 dated September 10, 2002 under Sections
302/201 of the Indian Penal Code was started against
the appellant. The police took up investigation and on
completion of investigation submitted charge sheet under
Sections 302/201/394/411 of the Indian Penal Code on
October 6, 2000. Accordingly, charges under Sections
302/201/394 of the Indian Penal Code were framed on
July 3, 2003. The appellant pleaded not guilty to the
charges and claimed to be tried.
7. In order to prove the charges, the prosecution
examined 40 witnesses. In addition, the prosecution also
relied upon certain documentary as well as material
evidences. On conclusion of the evidence on behalf of the
prosecution, the appellant was examined under Section
313 of the Code of Criminal Procedure. The appellant
claimed innocence in such examination and the
allegations as false.
8. Learned advocate for the appellant submitted that
there is no eyewitness to the occurrence and the case of
the case is purely based on circumstantial evidence. It
has been submitted that the prosecution has failed to
prove the chain of circumstances comprehensive enough
to prove the guilt of the appellant beyond all reasonable
doubts.
9. Learned advocate for the appellant contended that
the prosecution has not been able to prove that it was the
appellant who made the call at the house of the victim
and killed him for the purpose of looting. Nothing was
recovered at the instance of the appellant. It was also
contended that the extra-judicial confession allegedly
made by the appellant was not proved by the prosecution
and the recovery of the dead body and the offending
weapons at the instance of the appellant is doubtful.
10. Learned advocate for the appellant further
submitted that there are exaggeration and
embellishments in the testimony of the prosecution
evidence and as such, a conviction on the basis of such
evidence is not justified.
11. On the other hand, learned advocate for the State
submitted that the prosecution has proved the chain of
circumstances which points to the only proposition of the
guilt of the appellant.
12. It is submitted on behalf of the State that the dead
body and the offending weapons used in the offence were
recovered on the basis of extra judicial confession made
by the appellant. The prosecution has sufficiently proved
with the help of overwhelming evidence beyond doubts
that appellant was involved in the murder of the victim.
Therefore, it is submitted on behalf of the State that
impugned judgment of conviction and order of sentence
are well based on convincing evidence and need not be
interfered.
13. The de facto complainant himself deposed as PW 1.
He stated that the victim was his cousin brother. On
September 9, 2002 his aunt received a phone call from
the appellant who wanted to talk to the victim. There
were conversation between the appellant and the victim.
Thereafter the victim left his house by motorbike and did
not return by 9.00 p.m. PW 1 also stated that his aunt
tried to search her son. PW 1 and his relatives also
searched for the victim but he could not be traced out. At
about 5.00 a.m. they lodged a missing diary with Benia
Pukur police station. He further stated that on
September 10, 2002 at about 2.0 p.m. PW 3 informed
him that he had some information about the victim. He
went to National Club at 25/A Topsia Road, Bansbagan
within the jurisdiction of Tiljala PS and noticed that the
members of the club and detained the appellant. The
appellant stated that he will tell the truth about the
victim if he is released.
14. PW 1 further stated that the appellant disclosed
that he along with his other associates had committed
murder of the victim. Thereafter PW 1 went to Tiljala PS
and lodged the written complaint. The police took the
appellant into custody from 25A, Topsia Road. PW 1
tendered the written complaint which was marked as
Exhibit 1.
15. A sub- inspector of police deposed as PW 2. He
stated that on September 10, 2002, at about 14.45 hours
he received the written complaint from PW 1 and on the
basis of such written complaint he filled up the formal
First Information Report and started Tiljala PS Case No.
286 dated September 10, 2002 under sections
302/201/34 of the Indian Penal Code against the
appellant and his associates. PW 2 proved the formal first
information report which was marked Exhibit 2 and his
endorsement on the written complaint (Exhibit 1/2). PW
2 also stated that due to inadvertence the date was a
written as August 10, 2002 instead of September 10,
2000.
16. A resident of Topsia Road deposed as PW 3. He
stated that on September 10, 2002 at about 10.00 a.m.
some persons including PW 1 came to his house. He
further stated that PW 1 told him that his brother left his
house with money for purchasing leather and has gone
untraceable. PW3 along with others started searching for
the victim. He further stated that at about 12.30 o'clock
one Ebrar came to the national club where PW 3 was the
game secretary and reported that he used to work under
the appellant in his factory. He also reported that he
wanted to take back his clothes kept in the factory but
the appellant did not open the gate. PW 3 along with
others went to the factory and asked the appellant to
open the gate whereupon he stated that the keys where
lying with one Tenia. Instantly, Tenia was seen coming
towards the factory. Seeing him, the appellant tried to
flee away but he was overpowered by PW3 and others.
The appellant disclosed before him that he had murdered
the victim and his body was thrown in the Corporation
canal near the pumping station. PW 3 also stated that
the appellant further disclosed that the body of the victim
was cut into pieces and was kept in the back. Thereafter
the matter was reported to Tiljala PS. Please came and
recovered the dead body.
17. The person present in the national club was
examined as PW 4. He stated that on September and
2002 he along with PW 3 and others were in the national
club when one Ebrar came there and told that the
appellant was not opening the gate of his factory for
which he was not able to take his clothes. PW 4 also
stated that he along with others went to the factory of the
appellant and demanded its key whereupon he stated
that the key was lying with a boy. The boy referred by the
appellant was seen coming at that point of time
whereupon, the appellant tried to flee away but he was
apprehended by PW4 and others. PW 4 also stated that
on enquiry, the appellant disclosed that he had murdered
the victim and cut his dead body in 10 pieces, It in a
sandbag and thrown in the canal near Chowbhanga.
Thereafter PW 3 informed the matter to Tiljala PS. Police
visited and took the dead body. PW 4 identified the
appellant in court.
18. A resident of Topsia Bansbagan deposed as PW 5.
He has stated that on September 10, 2002 at about 12
o'clock he had been to national club. At that time one
Ebrar came there and reported that the appellant was
not giving the keys of his factory. PW 5, accompanied by
PW3, PW 4 and PW 9 went to the house of the appellant
and asked him to give the keys to Ebrar. The appellant
told them that the key was lying with the Tenia. At that
time Tenia was seen coming towards them. Seeing him,
the appellant tried to flee away but he was apprehended
by PW 5 and others. The appellant disclosed that he had
murdered the victim and his dead body was cut into 10
pieces and was kept in a sandbag thrown in the canal
near Chowbhanga. PW 5 also stated that the matter was
reported to Tiljala PS which recovered the dead body. He
also identified the appellant in court.
19. A local resident deposed as PW6. He stated that on
September 10, 2002 at about 3.00 p.m. he was about to
proceed to his place of work. At that time, he saw some
police and some persons assembled at the pumping
station. He also saw the appellant with the police. He also
stated that the appellant stated that he threw the dead
body of the victim into the canal water in a sandbag. PW6
was asked by the police with that he could swim. He
stated that he along with Bikas, Khokan and Hansha
recovered nine Sandy bags in one jute bag containing
different parts of the body. The jute bag contained the
chest of the body. The father and other family members
identified the dead body of the victim Samir seeing his
face and head. The police took backs containing the parts
of the dead body. PW 6 identified the appellant in court.
20. A resident of the place where the dead body was
found was examined as PW7. He stated that on
September 10, 2002 at about 3.00 p.m. At that time he
saw some persons along with the police personnel
assembled on the bridge at Chowbhanga. The police had
confined the appellant. PW7 also stated he along with
Khokan and Bapi Baidya recovered ten pieces of dead
body of the victim Samir kept in nine sandy bags from
the water at the request of police on the basis of the
statement of the appellant. He identified the photographs
of the dead body which was already marked as Exhibit
X/1 to Exhibit X/6. The bags were opened by the police
and were identified by the relatives of the victim. The
dead body was sent for post mortem examination. The
police seized the bags containing the dead body and some
other articles. PW7 put his left thumb impression on
such seizure list along with other witnesses. He identified
the appellant in court.
21. An acquaintance of PW7 deposed as PW8. He also
stated that on September 10,2002 at about 3.00 pm he
along with Bapi, Khokan and Bikash saw some persons
and the police personnel assembled at the bridge of
Paschim Chowbhanga. The police had detained the
appellant who confessed that he had thrown the dead
body of the victim in the Canal water. He also stated that
leading to such statement and as per identification of the
place by the appellant, PW8 dived into the water and
recovered nine bags and one gunny bag containing
different parts of the body of the victim Samir. The dead
body was identified by the family members of the victim.
Police conducted inquest over the dead body and
thereafter, it was sent for post mortem. The police seized
the bags in presence of PW8. He also identified the
appellant in court.
22. A resident of Topsia Road was examined as PW9. He
stated that on September 10, 2002 at about 12.00
O'clock he was gossiping in the National Club with PW3,
PW4 and PW5. At that time PW23 came there and
complained that the appellant was not giving the key of
the room where he used to work with the appellant. They
went to the building and asked the appellant to open the
padlock. The appellant disclosed that the key was lying
with the Tenia. The appellant tried to flee away when he
saw Tenia coming. He was apprehended by the aforesaid
persons and on enquiry, he confessed that he had
murdered the victim Samir and cut the dead body into
pieces. The appellant also disclosed that he had kept the
parts of the dead body in sandy bags and thrown it into
the Chowbhanga pumping canal. The matter was
reported to police by PW3 and the appellant was handed
over to police. PW9 identified the appellant in court.
23. A resident of Paschim Chowbhanga deposed as
PW10. He stated that on September 10,2002 at about
3.00 pm he along with PW6, PW7 and PW8 was in front
of Chowbhanga Pumping station. At that time police
brought the appellant who disclosed in presence of the
assembled crowd that he had murdered the victim Samir
and had thrown the dead body in watery portion of the
canal. At the request of the police, PW10 and others
recovered ten gunny bags. Nine bags contained different
parts of the dead body whereas one bag contained
lobister of the victim. The police seized the bags along
with other articles under a seizure list. PW10 proved his
signature on the seizure list (Exhibit Y/1) and identified
the appellant. The dead body parts were sent for post
mortem examination.
24. A businessman of hardware deposed as PW 11. He
stated that he had a hardware business at Kohinoor
market, 14/15, Topsia Road. He further stated that on
September 9, 2002 at about 6:30 PM one person came to
his shop and purchased one Hackshaw frame, 10 pieces
of blades and half kilo sutli. He also purchased one
shopper and one bag. He identified the appellant in court
as the person who had come to purchase the aforesaid
articles. He also proved the Hackshaw frame and the 10
pieces of blades which were marked as Mat Exhibit III.
PW 11 also stated that he identified the appellant in the
Test Identification Parade conducted in jail.
25. A resident of Topsia Road was examined as PW 12.
He has stated that he had a business of supplying
building materials. One person purchased 15 bags of
sand from his shop on September 9, 2002. He identified
the appellant as the purchaser of sands. He also claimed
to have identified the appellant in the Test Identification
Parade.
26. The cousin brother of the victim deposed as PW 13.
PW 13 stated that he saw the appellant and other
persons with the police at Chowbhanga. He further
stated that the appellant identified the place where he
had thrown the dead body of the victim and the police
recovered the dead body with the help of four persons in
10 bags containing different parts of the dead body. PW
13 also stated that he identified the victim seeing the
face. He has also stated that on September 9, 2002 the
victim had gone out of his house by his motorcycle but
he did not return. He along with others conducted search
for him. On September 10, 2002, PW 13 came to know
that the victim was murdered by the appellant. He
identified the appellant in court. He also proved his
signature on the inquest report (Exhibit 3).
27. One acquaintance of the victim deposed as PW 14.
He has stated that on September 9, 2002 of the victim
went out of his house by his motorcycle and did not
return till 8 PM. PW 14 also stated that he along with
others searched for the victim. On September 10, 2002
he came to know that the victim was murdered at
Choebhanga canal and went there. Arriving there, he saw
the appellant with the police personnel. The appellant
identified the place where he had thrown the dead body
of the victim. The police engaged for persons to recover
the body from the water of the canal. 10 gunny bags were
recovered containing different parts of the dead body of
the victim. The police conducted inquest over the dead
body. PW 14 identified his signature on the inquest
report (Exhibit 3/1). He also identified the photographs of
the dead body and the appellant in court.
28. Another acquaintance of the victim deposed as PW
15. He also stated that on September 19, 2002 the victim
went outside his house with money for purchasing
leather but he did not return till the night of September
9, 2002. PW 15 has also stated that on September 10,
2002, he received information that the victim was
murdered. Arriving at Chowbhanga pumping station, he
saw the appellant was detained by police and there was
so many persons assembled there. The appellant
identified the place where he threw the dead body of the
victim. He further stated that 3/4 persons recovered the
dead body of the victim from watery portion of the canal
in 10 gunny bags. The police collected the parts of the
dead body and conducted inquest. PW 15 identified his
signature on the inquest report (Exhibit 3/2).
29. PW 16 is another acquaintance of the victim. He has
also stated that on September 9, 2002, the victim went
out on his motorcycle for purchasing leather but he did
not return till the night. On the following day PW 16
received information, went to Chowbhanga pumping
station and saw the appellant. He further stated that the
police recovered the parts of the dead body with the help
of 4/5 persons from the place identified by the appellant.
PW 16 along with others identified the dead body of the
victim and was interrogated by police. He has proved his
signature on the inquest report (Exhibit 3/3). He also
identified the appellant in court.
30. Another resident of Topsia Road and an employee in
the shop of PW 12 was examined as PW 17. He stated
that on September 9, 2002 he, along with another person
PW17, supplied bags of sand from the shop of PW12 to
the house of the appellant through his van rickshaw. He
identified the appellant in court as the person at whose
house he delivered the sand bags and claimed to have
identified him on the Test Identification Parade.
31. PW18 is the van rickshaw puller who along with
PW17 supplied 20 bags of sand to the house of appellant
on September 9, 2002. He also identified the appellant in
Test Identification Parade.
32. The landlord of the appellant deposed as PW19. He
stated that the appellant was a tenant in his house
situated at 25/A, Topsia Road, on the first floor at a
monthly rental of ₹.800/- per month and the appellant
paid a sum of ₹.15, 000/- as advance. He used to deal in
leather business and PW23 was his employee. He
identified the appellant in court. He also stated that the
tenanted premises was under lock and key and was
stained with blood.
33. Another resident of Topsia Road was examined as
PW 20. He stated that he had a factory by the side of the
factory of the appellant at Topsia Road. On September
10, 2002, he saw that police arrested the appellant in his
tenanted house and the appellant confessed in his
presence that he had murdered the victim Md. Samir. He
further stated that the appellant led the police to recovery
of certain articles which were seized by police under a
seizure list. The police seized the driving license of the
victim which was identified by PW 20 and marked as Mat
Exhibit IV. He also identified the hammer, chop stained
with blood, sharp cutting knife, iron rod, blood stained
napkin, wearing apparel of the victim, slippers, hackshaw
blades having bloodstains, plastic bags and other articles
which were marked as Mat Exhibit V to Exhibit XV. He
also proved the seizure list (Exhibit 4). He identified the
appellant informed
34. Another witness to the seizure list deposed as PW
21. He also stated that the appellant used to reside
besides his residence at 25/A, Topsia Road. He identified
the appellant in court and stated that the appellant had
the business of manufacturing of gunny bags. He further
stated that on September 10, 2002 at about 12 o'clock,
police came to the residence of the appellant with him
and opened his room. Leading to the statement of the
appellant, the police recovered and seized several articles
like hackshaw blades, hammer, driving license and
wearing apparel of the victim and other articles which
were seized under a seizure a list. PW 21 proved his
signature on the seizure list (Exhibit 4/3). He also
identified the seized articles in court.
35. A rickshaw puller was examined as PW 22. He
stated that at about 6.00 a in the morning he was hired
by the appellant to carry certain articles in at least eight
bags. He further stated that the articles where carried by
him through his rickshaw from the room where the
appellant resided. It was taken to a culvert where the
appellant threw the gunny bags in the water. PW 22
identified the bags he carried (Mat. Exhibit XV).
36. The sub- tenant of the appellant in the premises
where the occurrence took place deposed as PW 23. He
stated that he used to work in a factory of manufacturing
bags situated at 25/A, Topsia Road. He was a sub-
tenant in respect of the aforesaid premises under the
appellant which originally belonged to PW 19. He
identified the appellant in court. He further stated that
on September 8, 2002, the appellant asked him to deliver
vacant possession of the premises to him for two days
which he complied in the morning of September 9, 2002.
The appellant state in the factory in the night and
delivered the samples to PW 23.
37. PW 23 also stated that on September 10, 2002 at
about 11.00 p.m., he returned to the premises and
requested the appellant to hand over the key of the
witnesses which the appellant denied. Thereafter, PW 23
went and complained to the members of National Club.
The members of the club intervened whereupon the
appellant stated that the he was lying with the custody of
Tenia. He also stated that the appellant went on the first
floor of the premises and tried to flee away but he was
apprehended by PW 3 and PW 9. Later on PW 23 came to
know from local people that the appellant had murdered
one person in the said premises. He was interrogated by
police.
38. A motorbike mechanic was examined as PW 24. He
stated that in the year 2002, the appellant gave him a
motorbike for repairing which he brought to his shop. It
was a red coloured Hero Honda motorbike bearing
Registration No. 5084. He further stated that the
appellant told him that he will collect the motorcycle of
the following day but he didn't turn up. PW 24 also
stated that one day thereafter the appellant came to his
repairing shop along with the police and identified the
motorbike. Police seized the said motorbike under a
seizure list. He identified his signature on the seizure list
which was marked as Exhibit 5. PW 24 also identified the
Hero Honda motorbike in court (Mat. Exhibit XVI). He
also identified the appellant in court.
39. A seizure list witness deposed as PW 25. He stated
that he was a resident of 25/A, Topsia Road. On
September 11, 2002 police came to the house of the
appellant and the blood stained plasters from the room.
The police first came to the room of Ashique on the 2nd
floor of the premises and recovered ₹ 90,000 from the
Almira as per the leading statement of the appellant. The
aforesaid articles were seized by police under a seizure
list PW 25 proved his signature on such seizure list dated
September 11, 2002 (Exhibit 6/1). He also stated that the
besides himself, the appellant and one Wadud also
signed on the seizure list. PW 25 also proved his
signature on the seizure list dated September 11, 2002
by which the police seized the blood stained plasters of
the wall (Exhibit 7/1). Besides PW 25, the appellant and
one Jamaluddin also signed such seizure list.
40. PW 25 also stated that on September 13,002 at
about 19.00 hours the police seized blood stained shirt
under a seizure list to which he signed. The appellant
and one Alimuddi also signed on the seizure list. He
proved his signature on the seizure list (Exhibit 8/1) and
the seized blood stained blue/black shirt (Mat. Exhibit
XVII). He also identified his signature on the label
attached to the seized shirt (Exhibit 9/1).
41. One of the seizure list witnesses deposed as PW 26.
He stated that the police seized 10 bags containing
human body cut into pieces. He identified the ninth
sandbags and one chat bag. He also identified his
signature on the seizure list dated September 11, 2002
(Exhibit 10/1).
42. A resident of 25/A, Topsia Road deposed as PW 27.
She identified the appellant in court. She stated that she
used to reside on the second floor of the building whereas
the appellant used to reside on the first floor. The
appellant used to deal in the manufacture of leather bags
and used to take meal at her house for a remuneration of
₹ 200 per week. She further stated that on September 10,
2002 at about 9.30/10.00 p.m. the appellant came to her
and handed over some money and left the house telling
her that he will come back shortly. PW 27 kept the
money in an Almira of her room. On the following day at
about 10.00 am, she heard hue and cry in the locality.
She got scared and left for her parent's house.
43. The husband of PW27 was examined as PW28. He
has corroborated the statement of PW27. He stated that
he used to reside on the 2nd Floor of the premises where
the appellant used to reside on the 1st floor. He identified
the appellant in court. He further stated that at that
time, the appellant used to deal in the business of leather
bags and used to take meals at his house in lieu of Rs.
200/-per week. He further stated that on September 9,
2002 at about 8.00 pm, the appellant asked him to take
him to a shop for purchasing sands whereupon PW28
took him to the shop of PW12. He purchased ten bags of
sand and came back to his residence. PW28 also stated
that on the following morning at about 7/7.30 am the
appellant asked him to bring a van/rickshaw whereupon
he introduced a deaf and dumb rickshaw puller to the
appellant. The rickshaw puller brought the rickshaw at
his house. Thereafter, PW28 left for his duty and
returned at 10.00 am. He again went to his duty and
returned at 1.00/1.30 pm and heard from local people
that the appellant had committed murder. He then left
the place out of fear.
44. The photographer deposed as PW 29. He stated that
on September 10, 2002 at about 2.30/3.00 p.m. police
took him to the premises at 25/A, Topsia Road where he
took some photographs as per the instructions of the
police showing blood stained shoes, sand et cetera. He
tendered the photographs along with its negatives which
were marked as Mat. Exhibit XIX collectively.
45. A witness to the seizure list dated September 11,
2002 was examined as PW 30. He stated that he was a
resident of the premises near the premises of the
appellant. On September 11, 2002, at about 12.30/1.00
in the night, the police visited his locality with the
appellant and recovered some currency notes in the
denomination of Rs. 500, Rs. 100/- and Rs. 50 totaling to
₹ 90,000/- from the Almirah kept in the house of PW 28.
The currency notes were seized by police under a seizure
list where the appellant, PW 25 and PW 30 signed
(Exhibit 6/2). He also identified the appellant in court.
46. The police officer who carried the dead body
deposed as PW31. He stated that on September 11, 2002
he carried a dead body to Medical College & Hospital at
Calcutta for post mortem. He proved the dead body
'challan' (Exhibit 11). PW31 also produced the wearing
apparels of the victim and sand bags which were seized
by the police under a seizure list. He proved his signature
on such seizure list (Exhibit 10/2) and the two gunny
bags as well as nine plastic bags (Mat. Exhibit XX and
Mat. Exhibit I respectively).
47. The mother of the victim deposed as PW32. He
stated that in the morning of September 9, 2002, he was
present in his house with the wife of his elder son's wife
Rukhsana. At about 10.00 am he received a phone call
from the appellant. He further stated that before
receiving the phone call the victim had left with some
money to meet the appellant by his motorbike. PW32 also
stated that the victim did not return till 10.00/10.30 pm
so he informed the matter to the local people and kept
searching for the victim throughout the night. The eldest
son of PW32 lodged a GDE in this regard. On September
10, 2002, PW32 received information that the victim was
murdered. He tendered the photograph of his victim son
(Exhibit 12).
48. The sister-in-law (brother's wife) of the victim
deposed as PW33. She stated that on September 9, 2002,
at about 9.00 am the victim took some money from his
mother left the house. Shortly thereafter, he returned
and again left the house after taking the papers of his
motorbike. She further stated that at about 10.30/10.45
am, PW33 received a phone call from the appellant in
presence of her mother-in-law. He asked for the victim
whereupon, she informed that he had already left. The
victim did not return on that day. On the following day,
PW33, received information that the victim was murdered
and cut into pieces. She also identified the photograph of
the victim (Exhibit 12) and that of the dead body of the
victim (Exhibit 13 series).
49. A police officer of Beniapukur Police Station
deposed as PW34. He stated that he recorded a GDE
being number 895 dated September 9, 2002 at 5.20 hrs
on the basis of information received from one Md. Sajid.
He proved the GDE which was marked as Exhibit 14.
50. The father of the victim was examined as PW35. He
stated that on September 9, 2002, his son left the house
with cash of ₹. 1, 00,000/- and his motorbike four
purchasing leather. He did not return on that day. His
wife informed PW35 that the appellant had called her
over phone and was asking for the victim. His another
son lodged a missing diary on September 10, 2002. At
about noon, PW35 came to know from Tiljala PS that the
appellant had murdered his victim son, cut the dead
body into pieces and had thrown it into a canal.
51. The Assistant Director of Forensic Science
Laboratory deposed as PW 36. He stated that on
September 17, 2002, his department received 20 paper
packets and five paper covered cardboard cases with
specific markings in connection with Tiljal PS Case No.
286 dated September 10, 2002 through the Sub
divisional Judicial Magistrate, Alipore. PW36 examined
the contents of the said parcels and prepared his report.
He tendered his report which was marked as Exhibit 15.
52. The Senior Scientific Officer, posted in the Physics
Division of Forensic Science Laboratory, Government of
West Bengal was examined as PW37. He has stated that
on September 28, 2002 his department received certain
articles with specific marking from Biological Department
of FSL in connection with Tiljal PS Case No. 286 dated
September 10, 2002. PW37 examined the aforesaid
articles and prepared his report which was marked as
Exhibit 16.
53. The autopsy surgeon deposed as PW38. He stated
that on September 11, 2002, he conducted post mortem
over the dead body of the victim Md. Samir in connection
with Tiljal PS Case No. 286 dated September 10, 2002.
PW38 tendered the post mortem report prepared in his
pen and signature which was marked as Exhibit 17. He
further stated that the dead body was produced before
him in a Jute bag and nine polythene bags which he
examined individually and after matching with the
dismembered parts of body in physico-morphological
appearance and their fittings at their respective site
anatomically and opined that the said parts belonged to
one single human being aged about 25 years. PW38 also
opined that the cause of death was due to the effect of
head injury ante mortem and homicidal in nature.
According to his opinion, the time of death was between
48 to 52 hours prior to the post mortem examination.
54. PW38 also opined that in view of the ante mortem
reactions at the several margins of the neck part it
appeared that severance of the body parts at different
sites were made immediately after the death of the
deceased. The injuries found by PW38 were opined to be
sufficient to cause death in ordinary course of nature. At
the trial, PW38, after being confronted with Iron Chopper
(Mat. Exhibit VI) and hackshaw blade (Mat. Exhibit XII)
opined that the dismemberment of the body could be
done by such weapons. He was also confronted with the
hammer (Mat. Exhibit V) whereupon he opined that the
injury found on the head of the victim could be inflicted
by such weapon.
55. A Judicial Magistrate was examined as PW39. He
stated that on October 10, 2002 he conducted Test
Identification Parade at Alipur Central Correctional Home
in respect of the appellant as suspect. He stated that the
witness PW12 identified the suspect as the person who
purchased 20 bags of sand from him 23/24 days ago.
PW18 identified the suspect as the person whom he saw
purchasing sands from the shop of PW12. He further
stated that PW11 identified the suspect as the person
who purchased hackshaw frame, hackshaw blades, axe,
half kilogram of rope and one gunny bag from his shop
on September 9, 2002. PW 39 also stated that another
witness Sk. Moklai @ Ganga, interpreted by a teacher of
Calcutta Deaf and Dumb School also identified the
suspect as the person who carried few tied bags through
his rickshaw van and threw those bags in the canal and
paid ₹.30/- to him. PW39 prepared a report upon such
Test Identification Parade which he tendered in evidence
and marked as Exhibit 18.
56. Investigating officer of the case deposed as PW40.
He stated that on September 10, 2002 he was posted as
Tiljala PS as Sub-Inspector of Police. At that time
Inspector Subir Chatterjee was the Inspector In-Charge
of the PS. On the same date a written complaint was
lodged by PW1. On the basis of such written complaint,
Tiljala PS case no. 286 dated September 10, 202 under
Sections 302/201 of the Indian Penal Code was started.
He tendered the formal first Information Report which
was marked as Exhibit to and the written complaint
which as marked as Exhibit 1. PW40 also stated that he
was endorsed with the investigation of the case.
57. PW40 also stated that in course of investigation, he
visited the place of occurrence and arrested the appellant
who was detained by PW3, PW4, PW9 and PW5. He
examined the aforesaid witnesses who stated the
appellant had admitted before them that he had
committed murder of the victim in a room on the first
floor of the premises 25/A, Topsia Road. Thereafter,
PW40 identified the appellant in court. He also visited the
said room with the appellant and the aforesaid witnesses
and found the articles therein were scattered. He
discovered bloodstains in different parts of the room and
in the attached bathroom. Heap of sand and some bags
filled with sand were also recovered in the said room.
58. PW40 interrogated the appellant who stated that he
had committed murder of the victim by hitting on his
head by a hammer at 11.00 am on Monday. The
appellant also stated that thereafter, he purchased 20
bags of sand, one frame of hacksaw and some hacksaw
blades. Thereafter, the appellant returned to his room
and cut the dead body into ten pieces. He further
disclosed that he kept the parts of the body in nine half
filled sand bags whereas the middle part of the body was
kept in a gunny bag. Thereafter, in the early morning, he
carried the said bags to a bridge at Chowbhanga
pumping station through the rickshaw van of one deaf
and dumb rickshaw puller. When the rickshaw puller left
the place, he dropped the bags into the water of the
canal. PW40 tendered the portion of the statement of the
appellant recorded under Section 161 of the Code of
Criminal Procedure, leading to recovery, which was
marked as Exhibit 19.
59. PW40 also stated that he along with the Inspector-
in-charge Subir Chatterjee, PW31, PW15, his father,
PW13, PW16, PW14, and four local people namely PW7,
PW10, PW6, and PW8 went to the bridge as per
identification of the appellant. The appellant pointed to
the place where he had dropped the bags. Thereafter,
with the help of PW7, PW10, PW6, and PW8 the nine
bags and one gunny bag was recovered from the water.
The bags were found to contain different parts of the
dead body whereas the gunny bag contained the middle
portion of the dead body. The head of the victim was kept
in a cement bag. The relatives of the victim identified the
dead body.
60. PW40 conducted inquest over the dead body on
September 10, 2002 at 3.25 pm. He tendered the inquest
report which was marked as Exhibit 3/4 which was
signed by the witnesses. He then sent the dead body
through a police constable for post mortem under a dead
body challan (Exhibit 11/1). In course of investigation,
PW40 examined the available witnesses and recorded
their statements under Section 161 of the Code of
Criminal Procedure, seized the sand found in the bags
under seizure list (Exhibit 20).
61. PW40 returned to the place of occurrence i.e. the
tenanted premises of the appellant and prepared rough
sketch map with index (Exhibit 2). He also seized 18
number of articles as shown by the appellant which he
used in commission of the crime under a seizure list
prepared under his dictation, in presence of the appellant
and witnesses (Exhibit 4/4). He also identified and
tendered the Driving License, Hammer, iron chopper, and
other articles (Mat. Exhibits IV to Mat. Exhibits XV).
PW40 also stated that the appellant lead him to a room
on the 2nd floor of the premises and took out ₹. 90, 000/-
from an steel almirah which was seized by him under a
seizure list (Exhibit 6/3) which was later handed over to
the father of the deceased under order from court.
62. PW40 also stated that the appellant lead him to the
garage of PW24 from where the motorbike of the victim
was recovered and seized by him under a seizure list
(Exhibit 5/1). He also examined the owner of the garage
under Section 161 of the Code of Criminal Procedure.
63. PW40 also received nine white and yellow color bags
and portions of two gunny bags containing different part
of the dead body from the Forensic Science Laboratory
and seized the same under a seizure list (Exhibit 10). He
also identified the said bags (Mat. Exhibit I and XX). He
also seized the van rickshaw of Ganga @ Sk. Moktar
PW22, through which the bags were carried from the
place of occurrence to the canal under a seizure list
(Exhibit 22). As shown by the appellant, he also seized
the wearing apparel of the appellant under a separate
seizure list (Exhibit 8) and identified the said wearing
apparel in court (Mat. Exhibit XVII). He arranged for
sending the seized article to Forensic Science Laboratry
and received its report. He also received the post mortem
report on September 18, 2002. PW40 also examined
PW22 and Dilip Kumar Chatterjee and recorded their
statements under Section 161 of the Code of Criminal
Procedure. He also arranged for the Test Identification
Parade of the suspect and collected its report.
64. Thereafter, PW40 submitted charge sheet against
the appellant on October 6, 2002 and after submitting
the charge sheet received the FSL report on October 29,
2002 and submitted a supplementary charge sheet on
November 11, 2002. After that, PW40 examined PW28
under Section 161 of Criminal Procedure Code and
submitted a further supplementary charge sheet on
November 22, 2002.
65. PW40 also proved the GDE Nos. 937, 939 dated
September 10, 2002, GDE No. 965 dated September 11,
2002, GDE No. 1081 dated September 13, 2002, which
were marked as Exhibits 23, 23/1, 23/2 and 23/3
respectively.
66. As noted above, the appellant has been charged
with the offences punishable under Section 302/201 of
the Indian Penal Code for intentionally causing death of
one Md. Samir, the victim and for causing disappearance
of the evidence with regard to such murder. The dead
body of the victim was found in an amputated condition
in ten parts of sand and jute bags each containing
difference parts of the dead body. The dead body was
sent for post-mortem examination. The autopsy surgeon
PW38 conducted post-mortem over the dead body on
September 11, 2002. He stated in his deposition that he
received one jute bag and nine polythene bags containing
the parts of the body. He examined the parts individually
and opined that considering the matching of the
dismembered body part with each other in physio-
morphological appearance and their fitting at their
respective site anatomically it can be said that the parts
were belonging to a single human being aged about 25
years. PW38 also opined after post-mortem examination
of the dead body that the cause of death was due to the
effect of head injury ante-mortem and homicidal in
nature. According to the opinion of PW38, the time of
death was between 48 to 52 hrs. prior to the post-
mortem examination. He further opined that the head
injury found on the dead body was sufficient to cause
death in ordinary course of nature. PW38 tendered and
proved the post-mortem report which was marked as
Exhibit 17. In post-mortem examination, PW38 noted the
injuries on the dead body of the victim at great length.
The injuries worth mentioning have been described as (a)
one lacerated injury line x 0.5 inches x bone deep placed
over lat. x end of left eye bore with evidence of fissure
fracture 1.5 inches long over corresponding frontal bone
and ante-mortem reaction,(b) one lacerated injury 1.5
inch x 0.5 inch into muscle deep placed over right
occipital region , one inch middle and below deep of right
mastoid of the process with evidence of ante-mortem
reaction, (c) one lacerated injury 1 inch x 0.5 inch x
muscle deep placed over right occipital region 0.5 inch
above external occipital perturbance with evidence of
ante-mortem reaction, (d) one lacerated injury 1.5 inches
x 0.5 inch into muscle deep placed over occipital region
0.5 inch below external occipital perturbance with
evidence of ante-mortem reaction, (e) one lacerated injury
3 inches x 1inch into bone deep of the place over right
parietal region 2.6 inches middle to right parietal
eminence with evidence of depressed commuted entry 2.1
inches into 1.7 inches over the corresponding right
parietal bone with that ante mortem reaction. There were
several other injuries noted by PW38 in Exhibit 17. It was
also noted that the body was found in ten parts.
67. PW38 was confronted with MAT Exhibit V, the
hammer weapon PW38 had opined that the injury found
on the head of the dead body could be caused by such
weapon. He was also confronted with MAT Exhibits VI
and XII (chopper and hack saw blades which according to
PW38, could have been used for severing the parts of the
dead body.
68. Thus, on the basis of the testimony of PW38
together with Exhibit 17, it can be safely held that the
victim Md. Samir died an unnatural death due to certain
injuries inflicted upon him, which were ante mortem,
homicidal in nature and sufficient to cause death in the
ordinary course. Consequently, the prosecution has been
able to establish that the victim was murdered.
69. The evidence on record goes to show that there no
eye-witnesses to the occurrence. The case is based on
circumstantial evidence.
70. The evidence on record goes to show that the victim
went out of his residence in the morning of September 9,
2002 with certain amount of money for the purchase of
leather. He left his house, came back and again left with
his motorcycle. It is the case of the prosecution that at
about 10.00 a.m. on the said date, the relatives of the
victim received a phone call from the appellant. The
appellant was asking for the victim whereupon he was
informed that the victim had already left. Such fact was
testified by PW 32. She has stated that at about 10.30
a.m. she was at her residence with the wife of her elder
son when they received a phone call from the appellant
looking for the victim. She also testified that before
receiving the phone call, the victim had already left with
some money to meet the appellant and such fact was
informed to the appellant over telephone. The daughter in
law of PW 32 has deposed as PW 33. She overrated this
statement of PW 32. She also testified that at about
9.000 a.m. the victim took some money from his mother,
PW 32 and he left the house. Later he came back and
again left after taking the documents of the motorbike. At
about 10.30/10.45 AM, PW 33 received a phone call from
the appellant who asked for the victim. She informed the
appellant that the victim had already left the residence.
71. PW 32, PW 33, PW1 and other witnesses have
stated that after leaving the house in the morning, the
victim did not return till late-night. Thereafter, the
relatives of the victim started searching for the victim.
The search for the victim continued throughout the night
and having failed to trace out the victim, PW1 lodged a
GDE with Beniapukur police station at about 5 AM on
the following day. Exhibit 14 is the GDE lodged by the
brother of the victim.
72. The matter was also brought to the notice of the
local people. PW3 stated that he was informed by PW1
that his brother had left the house with some money for
purchasing leather and he was not traceable. He also
requested PW3 to give the information if PW3 received.
PW3 was the games secretary of the National Club in the
locality. Besides PW3; PW4, PW5 and PW9 were also in
the National Club. At that time, PW23 came there. PW23
was a sub-tenant under the appellant in respect of the
premises where the occurrence took place. PW23 stated
that the appellant was a tenant in respect of the premises
situated at 25/A, Topsia Road under PW19. PW23 took
the said premises from the appellant as sub-tenant for
running a factory. It was stated by PW23 that on
September 08, 2002, the appellant asked for delivery of
the vacant possession of the said premises for two days
and accordingly, he delivered the vacant possession to
the appellant. The appellant stayed in the premises for
two days. On September 10, 2002, PW23 demanded the
key of the premises from the appellant whereupon he
refused to give the keys. Thereafter, PW23 went to the
National Club and reported the matter to PW3, PW4 and
others that the appellant was not giving back the keys.
PW3 has also stated that PW3 and PW9 went to the
premises demanding the key. At first, the appellant told
them that the key is lying with the possession of one
Tenia. Thereafter, the appellant went on the first floor
and tried to flee away but he was apprehended by PW3
and PW9.
73. PW3 has testified such facts that he was reported
by PW23 that the appellant was not giving the keys of the
premises to him. He along with others went to the
appellant and asked him to open the factory. He
disclosed that the keys of the victim were lying with one
Tenia. Incidentally, at that time, the said Tenia was found
going. Seeing the Tenia going, the appellant went to the
first floor and tried to flee away. PW3 along with PW4,
PW9 and PW5 caught hold of the appellant. The
appellant offered money to them for releasing him. On
enquiry, the appellant disclosed before the aforesaid
witnesses that he had murdered the victim and his body
was thrown into the canal of Corporation near Pumping
Station. Such fact has been corroborated by PW4, PW5
AND PW9. Thereafter, the witnesses went to Tiljala PS
arrested the accused, recovered the dead body and sent
the same for post mortem examination. Exhibit s 23 and
23/1 are the GDE which contains the information to the
effect that PW3 along with others reported to the Police
Station that the appellant was caught by them but had
confessed before them that he had murdered the victim.
74. After the appellant was sought, apprehended and
arrested, he was said to have confessed the murder of the
victim and having thrown the dead body after cutting into
pieces into the canal. He was taken by the Police to the
canal near the pumping station as identified by him. As
per the identification by the appellant of the place where
he had thrown the dead body, the Police engaged some
local people who dived into the canal and recovered nine
plastic bags and also jute bags containing different parts
of the body of the victim in such bags. PW6 stated that he
along with PW7, PW8 and PW10 dived into the canal as
per the direction of the Police and recovered ten bags
each containing different parts of the body of a human
being. PW7, PW8 and PW10 have corroborated the
statement of PW6. The aforesaid witnesses have also
stated that the recovery of the dead body from the canal
was made upon the statement of the appellant by the
Police and other witnesses. The recovered articles were
seized by the Police under the proper seizure list.
75. As noted above, the appellant was arrested. He was
interrogated by Police. He made a statement before Police
under Section 161 of the Code of Criminal Procedure and
gave out that he will lead to recover the dead body of the
victim as well as the motor-cycle belong to him. The
relevant portion of the statement of the appellant leading
to recovery of various articles including the dead body
was admitted in evidence (Exhibit 19).
76. Not only that, the motor cycle belonging to the
victim was also recovered pursuant to the statement of
the appellant. The motor cycle was recovered from a
garage as per the leading statement of the appellant.
PW24 has testified that the motorcycle of the victim was
handed over to him by the appellant for the purpose of
repairing from where it was seized by the police lead by
and in presence of the appellant.
77. The Police also seized a driving license of the victim
along with the offending weapons, plastic bags, some
quantity of sand and other articles from the room of the
appellant under a seizure list (Exhibit 4). Some of the
articles were stained with blood. There appears no
explanation on behalf of the appellant as to how the
personal belongings of the victim came to be recovered
form the room of the appellant. The sand samples
recovered from the room of the appellant along with the
sand in the bags containing the parts of the dead body
recovered from the canal were sent for chemical
examination. The report of the forensic science laboratory
(Exhibit 16) goes to show that the sand samples were
found to be similar in respect of the grain size
distribution.
78. The case submitted by the prosecution appears that
the appellant called upon the victim. The victim went to
the appellant with huge amount of money for the
purchase of leather. The appellant snatched the said
money from the victim and committed his murder. In
order to destroy the evidence of murder, the appellant cut
the dead body of the victim into several pieces, put the
parts in a number of cement bags, carried the said bags
to a canal and thrown such bags into the canal.
79. PW1, PW13, PW33 and PW35 have stated that the
victim left his house with some money for the purchase of
leather. PW35, father of the victim has stated that he left
with sum of Rs.1,00,000/-. Such testimony of the
prosecution witnesses has not been dislodged by the
defence.
80. As noted, the appellant used to reside at the first
floor of the premises at 25/A, Topsia road. He used to
take meal at the house of PW27 and PW28 for a
remuneration of Rs. 2,00/- per week who resided on the
second floor of the same premises. PW27 has stated that
on September 10, 2002, the appellant came to her and
handed over a bulk of money for keeping. He had stated
that he will go back and take the money. She kept the
money in the almirah of her room. The statement of
PW27 has been corroborated by her husband PW28.
Later on, a sum of Rs. 90,000/- was recovered from the
residence belonging to PW 28 and led by the appellant
under a seizure list (Exhibit 6). Exhibit 6 also contains
the signature of the appellant. The Police also recovered
and seized the blood stained plaster from the residence of
the appellant (Exhibit 7) and the blood stained wearing
apparel of the appellant at the time of commission of the
murder (Exhibit 8). Both the seizure lists bear the
signatures of the appellant.
81. The Police seized some bags of sand containing
sand and parts of the dead body of the victim (Exhibit 2).
Nine plastic bags of sand were also recovered and seized
by police from the residence of the victim (Exhibit 4).
82. It is the case of the prosecution that prior to the
alleged incident, the appellant purchased fifteen bags of
sand from a shop belonging to PW12. PW12 has stated in
his deposition that on September 09, 2002, the appellant
purchased fifteen bags of sand from his shop. He
identified the appellant in Court as the purchaser of
sand. He has also stated that after purchasing the sand
bags, he took the same by van/ rickshaw of PW17 and
PW18. PW17 and PW18 have corroborated the statement
of PW12 regarding purchase transportation of the sand
bags. Similarly, PW11 has stated that he dealt hardware
business. On September 09, 2002, the appellant
purchased hacks of frame and hacks of blades from his
shop. He also identified the appellant as the purchaser of
the said article. PW11 also identified the articles (MAT
Exhibit III collectively) as the articles purchased from his
shop. PW22 is another rickshaw/van puller. He has
stated that the appellant brought some bags from his
room and loaded on his rickshaw. The articles were
carried to a calvart where the appellant threw the ganny
bags in the water. He also identified the appellant as the
person hired his rickshaw/ van. He also identified the
bags (MAT Exhibit- XV) in Court.
83. PW11, PW12, PW18, PW17 and PW22 also identified
the appellant put on Test Identification Parade. Exhibit
18 goes to show that PW12 identified the appellant as the
person who purchased twenty bags of sand from his
shop. PW18 identified the appellant as the person whom
he sent to the shop room of PW12 for the purchase of the
sand. PW17 identified the appellant as the person who
purchased sand bags from the shop of PW18. PW11
identified the appellant as the person who purchased
hacks of frame, ten hacks of blades, one axe, half kg rope
and a gunny bag from his shop. PW22 identified the
appellant in such Test Identification Parade as the person
who carried some tied bags from his van rickshaw and
threw the said bags into the canal and paid Rs. 30/- to
him.
84. Therefore, from the evidence so adduced on behalf
of the prosecution, it transpires that the appellant
purchased sand and sand bags, and the offending
weapons which were used for the purpose of amputating
the parts of the dead body. The evidence on record goes
to establish that the victim went to the appellant with
huge amount of money which he carried for the purpose
of purchasing leather. The circumstances establish that
the appellant murdered the victim, cut the dead body into
pieces and tied up them in a bag and threw the bags into
a canal which contained the parts of the dead body. The
alleged time of incident is consistent with the purchase of
the sand bag for disposal of the dead body. In fact, PW22
has testified that the dead body was disposed of by the
appellant. The money carried by the victim was recovered
at the instance of the appellant. The appellant has not
been able to give any explanation for the money kept by
him at the residence of PW27. The appellant has also
failed to give any explanation as to why the driving
license of the victim was found to be recovered from his
residence. The motor-cycle belonging to the victim was
also recovered as per the leading statement of the
appellant. The circumstances brought forth by the
prosecution with the help of the evidence on record are
neatly weaved, which gives rise to the only position with
regard to the guilt of the appellant. There appears to be
no scope of any position leading to his innocence.
85. Therefore, in the light of discussions made
hereinbefore, we are of the view that the impugned
judgment of conviction and order of sentence passed by
the learned trial court are well founded and require no
interference.
86. Accordingly, the appeal being CRA 65 (DB) of 2022
and IA No. CRAN 1 of 2022 are hereby dismissed.
87. Connected applications, if, stands disposed of.
88. Period of detention suffered by the appellant during
investigation, enquiry and trial shall be set off from the
substantive sentence imposed upon the appellant in
terms of Section 428 of the Code of Criminal Procedure.
89. Copy of the judgment along with Trial Court
Records be sent down to the trial court at once for
necessary compliance.
90. Urgent Photostat Certified copy of this order, if
applied for, be supplied expeditiously after complying
with all necessary legal formalities.
[MD. SHABBAR RASHIDI, J.]
91. I agree.
[DEBANGSU BASAK, J.]
