Calcutta High Court (Appellete Side)
Ranadip Banerjee @ Rinku vs State Of West Bengal on 4 October, 2024
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Uday Kumar
C.R.A. 479 of 2017
Ranadip Banerjee @ Rinku
Vs.
State of West Bengal
For the Appellants : Mrs. Subhasree Patel, Adv.,
Mr. Soham Banerjee, Adv.,
Ms. Saini Das, Adv.
For the Respondent : Mr. Madhusudan Sur, A.P.P.,
Mr. Manoranjan Mahata, Adv.
Hearing concluded on : 18th September, 2024
Judgment dated : 4th October, 2024
Soumen Sen, J.-
1. The appellant is the younger brother of the victim.
2. Ranadip is convicted of an offence punishable under Section 302 of
the Indian Penal Code by the learned Additional Sessions Judge, 11 th Court at
Alipore by judgment and order of conviction dated 25 th May 2017 and 26th May
2017, in C.G.R No. 1724 of 2015 arising out of Gariahat Police Station Case
No.86 dated 24th April, 2015.
3. Joydeep Banerjee is the cousin brother of the appellant. He has
lodged a complaint on 25th April, 2015 at Gariahat Police Station alleging
murder of his elder cousin brother Sudip Banerjee @ Piklu by the appellant on
23rd April, 2015.
4. The facts narrated in the FIR are stated below.
5. Sudip Banerjee @ Piklu and Ranadip Banerjee @ Rinku are the
cousin brothers of Joydeep. They used to reside at one of their ancestral
houses being 108A Ballygunge Gardens, Kolkata- 700 019 which was a two
storied building. The ground floor was tenanted and the brothers used to
occupy two separate rooms on the first floor with another room remaining
empty and being used as a storeroom. Joydeep used to reside in another
ancestral house at 74 Ballygunge Gardens, Kolkata- 700 029. He used to run a
business of distributorship of Pepsi under the name and style of J.B.
Enterprise from a small shop at 72 Ballygunge Gardens, Kolkata- 700 029.
6. Piklu had some neurological problem due to which he was unable
to stand. He used to drag himself to move from one place to another inside the
house. One full time maid named Champa, was engaged to look after Piklu as
well as to do household work and cooking. Piklu was living in the said house
since 2009 after he separated from his wife and son. They are residing at
Behala Bakultala. His mother and middle brother Sandip @ Tukai also used to
reside in the said premises. However, both of them died in the year 2012 and
2013 respectively.
7. Ranadip @ Rinku is a bachelor and unemployed. The rents
collected from tenants on the ground floor are used for livelihood of the two
brothers. Champa was engaged by Mrs. Rupa Banerjee wife of Piklu, from the
very first day. Joydeep was concerned about the well- being of Piklu and he
used to send one of his friends Subodh Sarkar @ Noa almost on a daily basis to
find out the condition of Piklu and report to him about his condition. The
relationship between Piklu and Rinku was not good and Rinku used to beat
Piklu and demand money from him. On 23 rd April, 2015 at around 11.30 am
Joydeep visited the office of continental caterer opposite to his residence and
asked Noa to look after his shop. At about 12.05 hrs. while he was gossiping
with his friends near Arambagh Food Mart in the same locality one Indrajit of
Amtala, Kakulia informed him that Piklu was seriously injured and sitting on
the common passage in front of the main door of the building. Joydeep rushed
to the said premises and found Piklu had bleeding injuries on right eye brow,
head and leg. Rinku was standing at the landing of the staircase. On seeing
Joydeep, Rinku started abusing him and said that he had assaulted Piklu.
Joydeep was asked not to interfere in their family matters. Joydeep requested
some local men like Suraj, Krishna, Dodan and Indrajit to take Piklu upstairs
and apply first aid on him. Thereafter he left the place to call Dr. Amitava Roy
whose chamber is near to the said house. Dr. Roy sent Shakti, his compounder
to do the needful. Shakti on attending to Piklu advised Joydeep to hospitalize
him immediately. However, Rinku opposed the idea. Champa was not present
at that time. After that Joydeep left at about 1.15 pm. He asked Noa to visit the
house to find out the condition of Piklu. Later in the night of 23 rd April, 2015 at
about 9.15 p.m. Noa called Joydeep and reported that when he went to see
Piklu, Rinku threatened him and made an attempt to assault Piklu in front of
him. However, with Noa's intervention, Rinku was restrained. Noa expressed
his anxiety about the well-being of Piklu and chance of further assault by
Rinku. Thereafter, in the late night at about 1.30 a.m. Noa informed him that
Rinku had once again brutally assaulted Piklu due to which Piklu had become
unconscious and unresponsive. Joydeep rushed to their house and noticed
that the room of Piklu was under lock and key. Piklu was found unconscious
and motionless with severe bleeding injuries all over his body on the floor of the
left side room on the 1st floor and appeared to be dead. Champa and Noa were
present in the said room. Rinku at that time was in his room and on being
confronted with regard to the condition of Piklu and the reason for the room of
Piklu to be under lock and key, Rinku shouted at him and said that whatever
he had done was justified and asked them to leave the place immediately. In
view of such situation Joydeep informed the Gariahat Police Station over
phone. Within a short time, police arrived and started investigation. They asked
Rinku and Champa to open the room of Piklu but they failed to do so due to
unavailability of the key. Police accordingly broke open the lock and found a
blood-stained iron water pipe, some blood on the floor and on the bed. There
were also signs of wiping out the blood stains from the floor.
8. With such narrative Joydeep lodged the complaint that Rinku had
committed murder of his elder brother Piklu in his room and tried to conceal
and suppress his offence.
9. The investigation started.
10. Prosecution had examined 21 witnesses.
Witnesses for the Prosecution:
11. The de facto complainant Joydeep (PW 3) in his chief has almost
narrated the entire facts as stated in the letter of complaint. In his chief in
addition he has stated that when Rinku's mother was alive, he had a habit of
assaulting her too, a fact admitted by the neighbours of the house wherein
Rinku and Piklu used to reside. In the evening of 23 rd April, 2015 he had again
sent Noa with a packet of chips to find out the condition of Piklu. Noa reported
that Piklu was lying in the room of the 1st floor and was not in a position to
chew the chips. Around 10.30 p.m. he went to sleep. Therafter at around 12.05
a.m. in the night Joydeep received a phone call from Noa informing him that he
had received information from Champa, the maid servant, that Rinku had
again assaulted Piklu. Joydeep decided not to interfere and for that reason he
also switched off his mobile. At around 1.45 a.m. he received a phone call on
the mobile number of his wife from Noa who informed him that Piklu was not
alive and requested him to go to the house to Piklu immediately. Joydeep
instantly rushed to their house and found Piklu motionless and stiff on the 1 st
floor. The other statements in the complaint have remained the same.
12. In his cross-examination he has stated that Piklu and Rinku used
to maintain themselves primarily by collecting rent. The wife of Piklu used to
provide some maintenance for Piklu directly to Rinku. He generally switched
off the mobile at noon for rest. Usually he did not switch off his mobile at night
unless circumstances required otherwise. Neither did he instruct Noa nor did
he personally take any measure to shift Piklu to the hospital although there
were many hospitals within a radius of 3-4 kms with AMRI hospital being a 5-7
minutes' walk from Piklu's residence and SSKM hospital about 4-5 kms from
his residence. He did not make any attempt to shift Piklu to any hospital
during the day time as he had arranged for a local doctor/compounder for his
first aid treatment after receiving information about the deceased's injuries.
13. Joydeep has also stated in his cross examination that they had
inherited 80 bighas of land in the district of Burdwan and some portion of it
had been sold to an outsider by him. He stated that he did not know whether
Pinklu and Rinku were aware of such transfer and they had not claimed their
respective shares from the consideration price of the property at Burdwan after
sale.
14. Subodh Sarkar @ Noa is PW 4. He was working under Joydeep in
his shop. J.B. Enterprise since August, 2014. Previously he was working under
Ranadip Banerjee.
15. On 23rd April, 2005 at around 12.30 p.m., one Sonali, owner of a
tea stall adjacent to the premises of the victim informed him that the appellant
had assaulted the deceased and he was lying outside the house in a bleeding
condition. Sonali was looking for the de facto complainant (PW 3) and at the
relevant time PW 3 had gone to Golpark for some work. After sometime two
persons namely Indrajit and Dilip (PW 16) came to the shop on a motorcycle
looking for the de facto complainant. They also reported that the deceased was
lying outside the premises in bleeding condition and was unable to get inside
the house due to his handicapped state.
16. Around 1p.m. during tiffin hours he went to Golpark where PW 3
and one Raja Dasgupta were found gossiping and he narrated the whole
incident to PW3. Joydeep (PW 3) asked him to search for Shaktipada Banerjee
(PW 13), a compounder for dressing the injuries of the victim. PW13 was found
passing and informed him that he would directly go to the residence of Piklu
after visiting the doctor's chambers. At around 1.20 p.m. on the basis of the
instruction of PW 3 he went to see the victim and during such meeting the
victim stated that he was well. Again at around 6.30 p.m. after informing the
PW 3 he again checked the victim and found him lying in his cot in the first
floor room in good condition. After 9 p.m. he left the shop and purchased a
packet of potato chips for the victim and together they ate chips. The appellant
was sleeping in his room and Noa was smoking. At that time the appellant
came out from his room and chased him out of the house. After that when he
was coming out, he heard hot altercations between the brothers and they were
shouting at each other using abusive language.
17. On the very same day after returning home around 11:45 p.m. he
was informed by Champa (PW 5) that the condition of the victim had worsened.
After hearing the incident he went to the house of the victim where he found
that the victim was lying on a mattress on the floor with painful bleeding
injuries. Blood was oozing out of his head and corner of one eye and he was
found to be restless due to his pain. On being asked, Piklu stated that he was
assaulted by Rinku. He also found the appellant sleeping in his own room. He
took a pillow from Rinku's room, arranged it under the head of Piklu and also
narrated the whole incident to Joydeep (PW 3) over telephone. Noa stayed in
the next room of the appellant being requested by Champa (PW 5), as she was
feeling nervous about managing the situation. He stayed in the appellant's
room and after a while Champa (PW 5) told him that the victim was not
responding. Thereafter he rushed to the room of the victim, called him twice by
his name but the deceased did not respond. He instantly tried to contact PW 3
over phone and found his phone switched off. Failing to contact even the sister
of PW 3, he contacted the wife of PW 3 and narrated about the incident to PW 3
at around 2 a.m. After a while PW 3 came followed by police personnel from
Gariahat Police Station.
18. In his presence police recovered a blood clotted iron made water
pipe, blood clotted pillow, bed sheet and control blood scattered on the floor
after breaking open the lock on Piklu's room. They also seized a mattress, jeans
trousers, pyjama, pillow and a white colour electric wire from the room where
the dead body of Piklu was found. Each article was retained inside the packet
and label was fixed on each packet. He along with one Biswajit Dey (PW 6) put
their signature on each label of the packets. The signature of the witness on
the seizure list dated 24th April, 2015 was marked as Exbt. 5/1 collectively and
the signature of the witness on the seizure list dated 24 th April, 2015 by which
the iron made water pipe and other articles were seized was marked exbt.6/1.
19. During his cross-examination he has stated that he used to reside
at Kakulia Railway quarter. When he first heard from local people that Piklu
was lying injured outside his house, neither did he visit the house nor did he
inform Joydeep. Prior to informing Joydeep, he did not make any attempt to
hospitalize Piklu when he first saw him in an injured condition at night. On the
first half of the night he had left Piklu's house at 9.30 p.m.
20. Smt. Alpana Mallick, (PW5) in her deposition has stated that she
used to work as an "aya" (care-giver) to look after Piklu as he was a paralytic
patient since April 2012. After the death of the mother and middle-brother of
the victim Tukai, the wife of the victim discharged her from the job. Thereafter
the appellant engaged her with a monthly salary of Rupees 5000/- for looking
after the deceased and for cooking. Her duty hours was from 10 pm to 10 am.
She knew PW 4, who used to work with PW 3. She has also stated that PW 4
used to visit the said house to find out the condition of the victim as per
direction of PW 3. The witness described premises no. 108/A, Ballygunge
Gardens to be a two storied building of which the ground floor was occupied by
tenants and the first floor, consisted of 3 rooms, out of which the right side
room was occupied by the deceased, second room was occupied by the
appellant, the left hand room of the staircase was used as a store room, the
veranda was used as kitchen and the bathroom was situated at the corner of
the kitchen. On 23rd April, 2015 at around 11.45 a.m. she went to visit her
daughter suffering from cancer at Jadavpur KPC Medical College and Hospital
and thereafter returned to the house of the deceased at around 1:30 p.m. at
noon. She found the left side of the forehead of the victim had a cut injury
mark. When she asked the victim about the injury he pointed his finger
towards the room of the appellant. At the time of his bath she found another
line of wound marks on his back and again the victim told her that the
appellant assaulted him with a stick, which he used to beat dog and she
dressed the wounds initially. Thereafter Shakti, the compounder (PW 13) came
to attend the victim and suggested stitching the wounds and hospitalisation.
The appellant however prevented the victim from being hospitalised and told
Champa to apply "Nevasal powder". She applied the medicine as suggested and
made Piklu lie down on the cot. Thereafter after taking lunch and offering puja,
she left the house at 8:00 p.m. She again returned at around 10:30 p.m. and
found the victim sitting down outside the door of his room, which was locked,
with bleeding injuries on his face. When she asked him the reason for such a
condition, he pointed out finger towards the room of the appellant. She took
the deceased to the other room on the left-hand side of the 1st floor from the
staircase and dressed his injuries with Nevasal powder and laid him down on
the mattress of the floor. At around 11.45 p.m. at night she saw the victim
shivering and groaning in pain and being afraid she called PW 4 over phone.
PW 4 came to the spot and talked with PW 3 over phone. At around 1.00 a.m.
PW 4 intended to leave the house but on her request he remained in the house
and she arranged for his sleep in the room of the appellant. When she was
arranging to take her food, she found that the victim was not responding. She
instantly called PW 4 to check on the deceased. PW 4 came down to the ground
floor of the house talking with PW 3 over phone and told her that the PW 3 had
informed the police and asked her not to touch any articles lying around. At
that time the appellant was sleeping in his own room.
21. In her cross-examination she has stated that she found Piklu
whom she addressed as 'Barda' in a serious condition at night for which she
called Noa over phone informing him about the condition of Borda. Throughout
the night she remained present beside the room of Barda near the staircase but
did not attempt to take him to the hospital early next morning. She was
temporarily terminated from her job at the instigation of the wife of Piklu and
thereafter she was again appointed by Ranadip Banerjee the appellant.
22. Sri Biswajit Dey, (PW 6) is a broker and seizure witness. He stated
that he is a friend of PW3 and he received phone call from PW3 at around
2/2.15 a.m. informing him that the victim had died. He has stated that on
entering the house, he found a police vehicle stationed there and found Piklu
lying dead on the floor in a room on the first floor, covered in blood. In his
presence the police collected one checkered trousers, one jeans, one mat, one
blood stained pillow, one blood clotted white colour plastic pipe and portion of
blood from floor through a cotton.
23. All the seized articles were packed and sealed in envelopes with
labels affixed on the same and he signed on the labels as well as on the seizure
list.
24. Sri Samiran Shome @ Rana Shome (PW 7) is a childhood friend of
the appellant and the seizure list witness. He was asked by the Police to
accompany them for search and seizure. They followed the appellant who
pointed towards a lane going towards the railway quarters.
25. At the instance of the appellant a white colour plastic bag tied with
a rope was recovered which contained a maroon colour piece of cloth, a brick
colour handkerchief, a red and white coloured torn curtain, a lathi broken in
three pieces and a key was seized in his presence and he signed the seizure list
prepared at the place of recovery.
26. Sri Susanta Roy @ Babua (PW 8) is a neighbour. He stated that
from his drawing room the verandah of Piklu's house was well visible and that
he had witnessed Rinku quarrelling with and assaulting Piklu, which he had
reported to Joydeep. He had also attempted to restrict Rinku when he used to
quarrel with his mother, a cardiac patient having pacemaker. He has also
stated that on the day of the incident, when he woke up in the middle of the
night to use the bathroom, he saw a crowd in front of the house of the victim.
He also saw lights of their house turned on. He saw two police vans waiting in
front of their house when he went enquiring about the happenings. On the next
morning, he heard that the appellant had murdered the deceased.
27. Sri Partha Sadhukhan (PW 9) is the seizure list witness. He is a
friend of PW 7. He has stated that on 2nd May, 2015 at around 9.00 am PW 7
came to his shop and thereafter he accompanied PW-7 towards his home on a
motorcycle. On reaching near the Kankulia Road rail gate they saw some police
personnel present there. Thereafter, they came to know from police personnel
that the appellant had taken them there to find out some hidden articles by
which he had assaulted his elder brother (the deceased). He and PW 7 agreed
to become witnesses of search and seizure. Thereafter, they proceeded beside
the rail quarter towards a bush and as shown by the appellant, a white colour
plastic packet tied with a rope was taken out from the bush by the police. After
opening the plastic packet which contained a maroon colour piece of cloth, a
brick colour handkerchief, a red and white coloured torn curtain, a lathi
broken in three pieces and a key, the seized articles were sealed inside packets,
labelled and he put his signature thereon.
28. Sri Abhirup Roy Chowdhury (PW10) is a friend of PW 4. He has
stated that on 23rd April, 2015 at around 10 p.m. when he was returning
home by driving, he saw the appellant, who was coming towards the right hand
side rail quarter near Kakulia rail gate, holding a white colour polythene bag in
his hand. On the next day he heard from PW 4 that the appellant had
murdered the deceased the night before. Later he came to know from PW 4 that
police had recovered some articles from that rail quarter as shown by the
appellant after the incident. Hearing about it from PW 4, he informed PW 3 that
once he had also seen the appellant proceeding towards the rail quarter beside
Kakulia rail gate holding a bag on 23.04.2015 at around 10 p.m.
29. Tapan Kumar Mondal (PW 11) is the ASI who prepared the inquest
report. He examined the dead body of the victim and prepared the inquest
report in the presence of PW 3 and PW 15.
30. Sri Suraj Singh (PW12) is the husband of a tea stall owner who ran
the shop adjacent to the house of the appellant at 79, Ballygunge Gardens. He
has stated that on the day of the incident, on returning to his tea stall at
around 12-12:30 pm he found his wife absent there. Thereafter, he found that
many people had assembled in front of the house of the appellant and his wife
was also present there. There he found that the victim was seriously injured, in
a bleeding condition and was sitting in the ground floor near the staircase of
their house. He stated that PW 3 was present there and on being asked by PW-
3 as to how the victim was injured, the appellant stated that he had assaulted
the victim. PW 3 asked him to take the victim to the 1st floor but he declined.
PW 3 then called other persons namely Dodon and Krishna who washed the
blood from the face of the victim and then the deceased dragged himself
towards the 1st floor. He also accompanied them to the 1st floor when PW 3
was arranging to call a doctor. After a while he left the house with Dodon and
Krishna, while PW 3 left to arrange a doctor for treatment of the victim. On the
next day at around 7 am when he came to open his tea stall, he found that many
people had assembled in front of the house of the appellant along with police
personnel and thereby he came to know that the appellant had murdered the
deceased.
31. Sri Shaktipada Banerjee (PW13) is an employee of Dr. Dasgupta's
Clinical Laboratory, wherein he is a para-medical staff and works as a
compounder. He has stated that on 23rd April, 2015 at around 12:45 pm, PW
3 called him over phone and asked him to dress the wound of Piklu at his
house as he was assaulted by the appellant. As he was leaving Golpark he saw
PW 3 gossiping with his friend near Mouchak sweet shop. PW-3 asked him
whether he attended for dressing the wound to which he replied that after
finishing the rest of his work he would attend to the victim. On the same day at
around 2:30 p.m. he went to the house of the deceased and found him sitting
on the floor. The appellant was in another room in the same house. From a
close distance he found that the deceased had received a deep cut injury over
his left eyebrow. He advised the appellant to hospitalise Piklu for stitching his
wounds as the same was not a minor cut that can be healed by dressing.
However the appellant did not agree to that. PW 5 Champa came out from the
bathroom and told him that she would arrange for dressing. Thereafter he
came and consulted Dr. Amitava Roy over phone narrating the nature of injury.
On the next morning, he heard that the deceased had passed away. Police
came to his chamber after 2 to 3 days after the incident in the evening at
around 7:30/7:45 p.m. and interrogated him.
32. Sri Hiralal Ghosh @ Kaltu (PW14) is a labourer who does
construction work and almost every day he used to assemble with his friends
near Ghosh Medical, which is close to Kankulia gate. After 10 days of the said
incident police came to him and showed a photograph, which he identified as
the deceased. He also stated to the police that on the date of the said incident
he had seen the appellant along with a white colour plastic bag proceeding
towards Kankulia level crossing at around 9.30-10 pm on the date of the
incident in April, 2015. After a while he had also seen the appellant returning
from the said place empty handed. He had called him twice to which the
appellant did not answer. On the next morning he came to know that appellant
had murdered the victim.
33. Smt. Rupa Banerjee (PW 15) is the wife of the deceased and the
inquest report witness. She was married to the deceased in the year 1988 and
their son was born in the year 1993. In the year 1994 she shifted with her
husband to a rented accommodation at Jadavpur and in the year 1997 they
shifted to Behala to her paternal home. Due to some neurological problems the
deceased had to be hospitalized on several occasions and for that reason it was
decided by her mother-in-law that the victim would reside with them. Finally
her husband shifted to their residence at Ballygunge in the year of 2012 and
since then they were separated. She stayed along with her son at her paternal
home at Behala. As it was not possible for her to take care of her husband
being a working lady, she decided to leave the deceased at his parental home
under the care and custody of his family at the behest of his mother.
Subsequently, his mother and brother-in-law (Sandip Banerjee @ Tukai)
passed away. She used to bear her husband's attendant's charges and
medicine costs. After the death of Sandip she stopped making payments to her
husband after learning that her husband and his surviving brother were
earning well from tenants. On 24th April, 2015 in the morning she got the news
about her husband's death from her sister-in-law Papai via messages.
Thereafter, when she called her sister-in-law, she came to know that her
husband was murdered by the appellant. Inquest report was prepared before
her and PW-3 at the police station.
34. Dilip Dey (PW 16) is a cleaner of vehicles. He has stated that on
23rd April, 2015 at around 12:15/12:30 p.m. when he was cleaning vehicles in
front of Dr. Amitava's chamber he was called by PW-3 for going to the house of
the victim. After reaching there along with two others namely Krishna (not
examined) and Suraj (PW 12) he found the victim with bleeding injuries from
his forehead and other parts of the body. As per instruction of PW-3 he along
with Krishna cleaned blood from the body of the victim and thereafter they left
the house. The appellant was present at their home during such incident. On
the next morning, he heard that the victim had died. He was interrogated by
the police after 3 days from the date of the incident.
35. Dr. Swapan Kumar Mondal (PW 17) is a Medical Officer and he
prepared an injury report. He has stated on that day at about 6:45 a.m. he
examined the dead body of the deceased. On examination he found multiple
lacerated injuries on the face and head, on the left shoulder and right leg. On
24th April, 2015, after examining the dead body he made the injury report.
36. Dr. Tapan Kanti Roy (PW 18) is the Forensic Doctor who performed
the medical examination of the appellant. He has stated in his Chief that on
27th April, 2015 he examined the appellant. On examination he found following
injuries:
a. a bruise with abrasion on the right leg close to right knee joint
10 cm away from the knee.
b. another abrasion reddish brown coloured found on his left
dorso of the foot.
c. 2 small infected spots were seen on the right wrist.
37. He opined that above mentioned injuries were sustained at motion
and the age of the injury was about 84 to 92 hours before examination at 4.00
p.m. on 27th April, 2015. He stated that the reason of the injury was most
probably due to a movable object of heavy weight and low velocity like pulling
and pushing a heavy and blunt object.
38. Dr. Biswanath Saren (PW 19) the post mortem examiner in his
chief has stated that on 24/04/2015 he examined the dead body the deceased.
On examination he found 26 injuries on the dead body of the deceased. He
opined that injuries sustained may be caused by iron rod and this type of iron
rod can cause both bruises as well a fracture injuries. He stated that
haematoma on the scalp tissue which he found may be caused due to fall from
the stair case. He also stated that the injuries which were detected by him on
the dead body may be caused by iron rod and stick which had been noted as
ante mortem injuries and homicidal in nature in P.M report and these sorts of
injuries which he has noted are sufficient to cause death in ordinary course of
events.
39. Sri Subhra Chandra Shee (PW 20) is the first investigating officer.
He has stated in his Chief that on the midnight of 23 rd April, 2015 and 24th
April, 2015 at around 2:15 hrs, he received information from PW 3 that the
deceased was lying injured and motionless on the 1st floor of the place of
occurrence (P.O.). They reached the P.O at 2:35 hrs and raced to the 1" floor
where they found a gathering of 4-5 people in a room on the left side of the
staircase. PW 3 pointed towards a person lying on the floor of the room heading
towards east with profuse bleeding injury on his head. He seized some articles
from the room where the body of the victim was lying. After breaking open the
lock of the room he seized some articles from there. He recorded the statement
of PW 3, 4 and 6. After registration of the case on the basis of the statement of
PW 3, he detained the appellant as per instruction of his superior officer.
40. Sri Bireswar Roy (PW21) is the 2nd Investigating Officer. He took up
the investigation of the case from PW20 under the instruction of additional O.C
of Gariahat Police Station on 20th April, 2015. He has stated during the post
mortem examination, as per the instruction of the autopsy surgeon, the seized
iron made water pipe was produced before him in sealed and packed condition
which is reflected on the backside of the P.M. report. He interrogated the
appellant but at the time of interrogation he remained silent. When he was
examining the appellant, he found some cut marks on the back side of the
right palm, left leg and foot and one abrasion mark on his right leg and the
marks of the injury were properly noted down in the inspection memo. During
Police custody the appellant was interrogated again and there he stated before
him that if he was taken to Kankulia gate, he would assist to recover a plastic
bag containing wooden stick, key, blood stained clothes, handkerchief and
curtains which were used by him during commission of offence. To verify the
statement of the appellant, they reached Kankulia gate and recovered white
colour plastic bag tied by a rope was recovered which contained a maroon
colour piece of cloth, a brick colour handkerchief, a red and white coloured
torn curtain, a lathi broken in three pieces and a key and the same were
seized. On 24.04.2015, the appellant was produced before Dr. T.K. Roy
ACMOH, who made a forensic examination of the injuries of the appellant. He
recorded the statement of seizure list witnesses. He collected the forensic report
and he submitted the chargesheet no: -108/15 dated 22 nd July, 2015.
Submissions on behalf of the Appellant
41. The learned Counsel for the appellant has submitted that there are
several discrepancies and inconsistencies in the evidence of the witnesses. It is
submitted that the material evidence on record coupled with the statement
rendered by the accused under Section 313 of the Cr.P.C. would clearly
indicate that the de facto complainant, the first informant is the real culprit
and he had carefully selected witnesses in order to inculpate the accused
appellant.
42. The version of PW 3 and PW 4 are not in consonance regarding the
morning incident of assault of the deceased.
43. PW 3 stated that he was informed by local men about the incident
when he was standing near Arambagh at 12 P.M. but PW 4 stated that on 23 rd
April, 2015 around 12:30 pm, he was informed by one tea stall owner Sonali
that the deceased had been assaulted by the appellant and was lying outside
the house in a bleeding condition and at that time PW-3 was gossiping with
one of his friends at Golpark. Strangely a vital witness like Sonali was not
examined as a witness by the prosecution. PW 3 also claimed to have informed
Dr. Amitava Roy for the check-up of the deceased who in turn sent his
compounder PW 13 to the P.O. However, PW 4 contradicting PW 3 stated that
PW 3 had asked him to search for PW 13 for dressing the injury of Piklu and
PW 13 had told them that he would go to the house of the appellant after
visiting the Doctor's chamber. PW 4 did not mention anywhere in his
deposition that PW 3 went to the P.O. after hearing about the Incident in the
afternoon and claimed to have visited the deceased at around 1:20 pm. PW 3
did not mention in his statement that he instructed PW 4 to visit the spot and
rather deposed that he himself had visited the P.O. and requested PW 13 to do
a check up on the deceased and that PW 13 had asked him to hospitalize the
deceased. PW 3 stated that he had requested Dodon, Krishna and Suraj of the
locality to take Sudip to the first floor and thereafter he had left for Golpark.
PW-12 (Suraj) however, stated that the victim had gone to the first floor by
dragging himself and PW 3 had tried to arrange a doctor. Krishna and Dodon,
who had apparently gone to the P.O. in the morning and witnessed the
deceased in a bleeding condition and had also cleared his blood, were not
examined by the prosecution. PW 4 also stated that one Indrajit and PW 16
also reported the incident to him but strangely Indrajit was also not examined.
Dr. Amitaba Roy who was informed about injury sustained by the appellant in
the morning was also not examined by the prosecution. PW-3 claims to have
been informed by PW 16 and Indrajit about the morning incident while PW-16
states that it was PW-3 who called him to go to the house of the appellant on
that morning.
44. Ms. Patel has submitted that there are apparent contradictions
between the evidence of PW3 and PW4 with regard to the treatment of the
victim after he was reported injured. While PW3 has stated that after being
informed of the incident he had visited the victim and thereafter the doctor's
house but the doctor had sent his compounder Shakti, PW4 the employee of
PW3 has stated that he was asked to find the compounder to dress the injuries
and when he requested the compounder to visit the house of the victim. For
such purpose PW13 (compounder) informed that he would go there after
visiting the doctor's chamber. Moreover, PW3 did not find it necessary to
immediately admit the injured victim although he claimed that he found the
victim severely injured. Being a cousin it would have been the natural and
normal course of conduct to admit the victim to a nearby hospital. The prime
witnesses of the case i.e., PW3, PW4 and PW5 contradicted in respect of certain
factual aspects of the matter.
45. PW 4 stated specifically that he met the deceased again at 6:30
PM. when he was in good condition. On his next visit to the deceased at around
9 pm he offered chips to the appellant and they started having chips together.
However, PW 3 completely reversed the said incident in his own way and
deposed that PW 4 had informed him that the deceased was not in position to
chew clips in the evening.
46. PW 15 stated that she had come to learn about the death of her
husband from her sister-in-law, Papai on 24.04.2015 in the morning. However,
the prosecution deliberately refrained from examining the said Papai who could
have been a vital witness in the case. It is submitted that as per the deposition
of PW 15, after the death of Tukai, she came to learn that there were other
tenants in the house and with rent so collected by the appellant, both the
appellant and the deceased were well maintained and hence she stopped
making payments to her husband. However, the prosecution did not make any
endeavour to adduce even a single tenant as a witness although the tenants
could have been the most vital witnesses in substantiating and/or defending
the prosecution story.
47. The learned Counsel for the appellant submits that there is no
explanation by PW-3 as to what prevented him from taking the victim to the
hospital despite being asked by Shakti to do so. Generally he switched off his
mobile phone at noon for rest but at night he did not usually switch off his
mobile unless required depending on the circumstances. On that fateful night
he could not offer any plausible explanation for switching off his mobile though
he claimed that he was aware of bleeding injuries of Piklu and the disturbance
at the said residence between the brothers. Noa curiously did not inform PW3
after he heard that the victim was lying injured nor did he visit the victim. He
also did not take the victim to hospital. Champa used to receive Rs. 5000/- per
month from the appellant as a domestic help but she had to pay Rs. 520 for
bed charge per day and about Rs. 20,000/- as monthly expenses for her
daughter undergoing cancer treatment. After she found Borda in a serious
condition she did not take any steps for hospitalization of the victim, although
AMRI hospital is situated at a walking distance of 20 minutes from the house
of the appellants.
48. There is nothing on record to prove that death was due to the
injuries sustained in the morning.
49. Ms. Patel has submitted that PW6, Biswajit Dey has been planted
by PW3. His evidence is unreliable as it is hearsay.
50. PW8, from whose drawing room the verandah of the appellant's
house was clearly visible has stated in his cross-examination that he was not
aware of anything that happened in the house of the deceased either in the
morning of 23rd April, 2015 or at night. He did not hear any sound of
altercation during the time of the incident and only came to know about the
incident on the next morning.
51. PW 7 is a search and seizure witness along with PW9 and he also
happened to know the appellant. PW9 in his cross has stated that adjacent to
the rail quarters there is a bush spreading over a large area wherefrom the
hidden articles were recovered by the police on being shown by Ranadip,
however, articles recovered by the police did not bear any special mark. The
kind of articles seized by the P.O. are also available in the market.
52. PW10 is a friend of PW4 and PW3 told him to narrate the whole
incident to police and on the very same day police interrogated him. The
possibility of PW 10 being planted as a witness by the PW 3 cannot be ruled
out in light of the fact that he admitted of being acquainted with PW 3 and PW
4 who apparently informed him about the murder of the deceased on the next
day. PW14 is the labourer and hearsay witness but has stated that on the day
of the incident he saw the appellant along with a white colour plastic bag
proceeding towards Kankulia Level crossing in the morning of April, 2015.
53. PW11 the ASI and maker of inquest report has stated that he
examined the dead body. He did not record the statements of the informant at
the time of preparation of the inquest. PW15 the wife of the deceased has
stated that PW5 used to look after her husband and that appellant had
appointed her to look after the deceased and used to pay her salary for taking
care of the victim. She heard that the paternal property of her husband at
Burdwan has been sold out. PW16 cleaner of the vehicle is the hearsay
witness. On 23rd April, 2015 at around 12/12.30 p.m. when he was cleaning
vehicles in front of Dr. Amitava he was called by PW3 for going to the house of
the victim which clearly contradicts the version of PW3 and PW4. The Medical
Officer PW17 in his cross has stated that he did not find any bruise injury on
the dead body. PW19 is the doctor who conducted the postmortem examination
and stated that the nature of injuries found on the dead body may be caused
by an iron rod. In his cross he has stated that the nature of bruise mark can
also be caused by bamboo like thing.
54. The learned Counsel has submitted that although it is alleged that
the victim was found in the morning sitting on the staircase bleeding and hot
altercations took place between the brothers and they were speaking to each
other using abusive language in the evening, surprisingly neither any tenant
nor any neighbour corroborating such fact was examined. The premises in
question is a two-storied building of which the ground floor was occupied by
tenants. It is improbable that PW5 attended the deceased in the afternoon after
he was assaulted by the appellant as per the prosecution story since the PW5
herself has deposed that her duty hours at the house of the deceased was only
between 10pm and 10am. In such a scenario, the tenants could have been
possibly the best witnesses to the alleged offences but the prosecution in a
motivated way chose to omit the production of such tenants in connection with
the alleged offences. It is also striking that PW3 after reaching the PO at
midnight called his friend PW6 at the PO instead of the tenants who ought to
have been present in the same house, especially when he admittedly had a
cordial relationship.
55. The learned counsel has submitted that it is interesting that all the
witnesses excepting all the prosecution witnesses is somehow connected to
Joydeep. The selection of the witnesses is also interesting as PW7 was picked
up by the police to accompany the appellant in the endeavour to recover the
offending weapon. The said witness happens to be a friend of Joydeep and he
had suddenly found Ranadeep in a police van and he was stopped and
interrogated by the police. Thereafter he accompanied the police to the spot
where the offending weapon was allegedly concealed by the appellant. It is not
quite discernible why the police could not find any witness in and around the
place where the offending weapon was concealed and the witnesses who
accompanied the police and in whose presence such recovery was made are all
chance/interested witnesses close to Joydeep. It is further submitted that all
the recovery witnesses have given different times of having seen the appellant
going near the railway station near Kankulia with a bag in his hand and
returning thereafter. While PW10 had seen the appellant going to the Kankulia
railway station at around night, PW14 had seen the appellant going in the
morning which subsequently he rectified in his cross-examination and stated
that he had seen the appellant at around 9.30/10 pm on the day of incident.
56. According to PW 4, he visited the deceased's house after 9 PM,
where he ate chips with the deceased. PW 10 and PW 14 testified that they saw
the appellant around 9:30-10 PM, heading towards the bush with a plastic
packet in hand. Furthermore, as per PW 4 and PW 5, PW 5 informed PW 4 via
phone at approximately 11:45 PM that the victim's condition had worsened.
The testimonies of PW 4 and PW 5 confirm that the deceased remained alive
until around 1 AM. Given this timeline, it seems improbable that the appellant
could have disposed of part of the evidence while leaving some in the room
accessible and then gone to sleep before the completion of the offence,
especially without knowing the potential outcome of the alleged assault.
Additionally, the time between 9 PM and 10 PM is not so late that any sound
resulting from an assault would go unnoticed and unheard. PW 8 explicitly
stated in his deposition that he could ordinarily hear noises from his house
when quarrel took place at the appellant's house. Even if, for the sake of
argument, it is considered that the appellant assaulted the deceased on that
night, it is highly unlikely that he would have had the foresight to anticipate
the outcome of the assault and then conceal evidence that would implicate him
as the perpetrator which clearly demonstrates the failed attempt of the
prosecution to establish its case and implicate the appellant on poorly linked
circumstances without actual evidences to back the prosecution's claim.
57. The learned Counsel was critical about the conduct of PW 3. It is
submitted that despite being informed by PW 4 that the deceased had been
assaulted by the appellant at 12:05 am, instead of visiting the deceased he
switched off his phone on the pretext that he was feeling uneasy in interfering
in their family business. The aforesaid excuse seems to be wholly unreasonable
in light of the fact that he has repeatedly expressed his concern about the
health of the deceased, prior to the incident, for which he used to send PW 4 to
visit the deceased and monitor if he was keeping well.
58. On the contrary the conduct of the appellant specifically concern
for his elder brother is reflected from the statement PW15 who has stated that
PW5 was reappointed by the appellant to look after her husband and the
appellant used to pay her salary. PW5 also corroborated the said fact.
59. The learned Counsel has submitted that the following events are
required to be taken into consideration in deciding the culpability of the
appellant in the commission of the crime.
60. The deceased did not die due to the injuries as alleged in the
morning since as per PW4, around 1.20 p.m., being instructed by Joydeep, he
went to meet Piklu Piklu stated that he was well. Again at 6.30 pm, with
knowledge of Joydeep, he had gone to meet Piklu and found him lying in his
cot in good condition.
61. When PW-4 arrived, the deceased was alive. It is surprising that
PW 4 went to the other room and slept instead of taking the injured to the
hospital. Around 11.45 p.m, PW 5 had informed him that the condition of Piklu
had worsened and he was shivering and groaning out of pain. However, neither
PW 4 nor PW 5 had witnessed Piklu being further beaten up by the appellant.
Appellant was found sleeping in the next room There was no explanation as to
why he did not inform anyone earlier or take him to the hospital or try to wake
up the appellant. It is very strange that PW 5 called upon PW 4 to inform that
the deceased was shivering and groaning in pain instead of informing the
appellant sleeping in the next room.
62. The entire seizure is framed because it is very unlikely that some
materials will be concealed in a bush and the rest kept locked in a room at the
P.O. by the appellant herein. Moreover, if the incident took place prior to 9 p.m,
it is very unlikely that no one heard any cry of the deceased while being beaten
up. The neighbour could hear from his house if anyone talked loudly at the P.O
but did not hear or witness the incident at the time of occurrence.
63. PW-3 claims to have informed about the demise of the deceased to
some neighbours and friends along with the police station but none of the
neighbours and friends who came over seem to have been examined.
Suspiciously, as per the deposition of both PW4 and 5 after being informed that
the victim was not responding, PW3 asked them not to touch any articles
laying around till the police arrived as if already certain that the victim had
died and a police investigation would ensue.
64. The version of PW 4 and PW 5 certainly do not constitute a dying
declaration.
65. The chain of circumstantial evidence misses links post evening
since no one saw or heard about the incident.
66. Hence chain of circumstances is not complete.
67. The chain of circumstances has been fabricated by the police as
per their whims and fancy, in absence of any direct evidence to the commission
of the offence whatsoever.
68. The learned counsel relied on the case of Nagaraj v State1 to
submit that in a similar case wherein there were a number of inconsistencies
in the case of the prosecution with contradictory statements given by
prosecution witnesses, fingerprints not being lifted from the scene, murder
weapon not being recovered, investigation by police being unsatisfactory,
(2015) 4 SCC 739
absence of any credible motive, the Hon'ble Supreme Court had observed that
there was as much opportunity and as much motive for other persons to have
committed the crime which had been tenuously attributed to the accused and
had bestowed the accused with the benefit of doubt considering the failure of
the prosecution to prove its case beyond reasonable doubt.
69. Reliance has also been placed on Abdul Razak and Others v
State of Karnataka2, to establish similarity. It is submitted that in a situation
where the deceased had succumbed to injuries with his hands tied behind his
back, his leg fractured and eyes burning with chilly powder for over 4 hours
the Court acquitting the appellants, had opined that the conduct of the
prosecution witnesses did not inspire confidence since they had firstly left the
deceased to be assaulted without intervening and had also done nothing post
the event to help the unfortunate soul, who was left to die without any succour
coming from any quarter.
70. The learned counsel cited the case of Raja Naykar v State of
Chhattisgarh3, for the proposition that the circumstances should be such that
they exclude every possible hypothesis except the one consistent with the guilt
of the accused and that suspicion, however strong, cannot take the place of
proof beyond reasonable doubt.
71. The learned counsel placed the landmark judgment of Sharad
Birdhichand Sarda v State of Maharashtra 4, to reiterate the five golden
(2015) 6 SCC 282
(2024) 3 SCC 481
(1984) 4 SCC 116
principles to constitute the 'panchsheel' of proof of a case based on
circumstantial evidence and to submit that when there were two views possible
on the evidence on record, one pointing to the guilt of the accused and another
to his innocence, he was entitled to have the benefit of the one favourable to
him.
72. In a case based on circumstance, motive assumes great
significance and complete absence of motive definitely weighs in favour of the
accused is well established by various judgments including the decision of the
Apex Court in Nandu Singh v State of Madhya Pradesh 5,
73. The case of Chhote Lal v Rohtash and Others6 was cited to
buttress the argument that in a case wherein the complainant/appellant, the
sole eyewitness happened to be the most interested witness, his testimony was
to be examined with great caution and in view of the fact that the chain of
circumstances was not complete and presence of eye-witness doubtful, the
benefit of doubt was extended to the accused.
74. The decision in Pardeep Kumar v State of Haryana7 was placed
to demonstrate that when there existed a yawning gap between the charges
against the appellant and evidence adduced by the prosecution which gave rise
to doubts, improbabilities and inconsistencies it shall be held that the
prosecution had failed to establish its case beyond reasonable doubt and
consequently the appellant would be entitled to be acquitted.
2022 SCC OnLine SC 1454
2023 SCC OnLine SC 1675
(2024) 3 SCC 324
75. The counsel for the appellant also cited the case of Nagendra Sah
v State of Bihar8, for the proposition that Section 106 would only be
applicable to those cases wherein the prosecution had succeeded in
establishing facts from which a reasonable explanation could be drawn
regarding the existence of said other facts. However, in a case governed by
circumstantial evidence, if the chain of circumstances which is required to be
established by the prosecution is not established, like in the present case, the
failure of the accused to discharge the burden under Section 106 of the
Evidence Act would not be relevant at all. Hence, when the chain was not
complete, the falsity of the defence was no ground to convict the accused.
Submissions on behalf of the State:
76. Per contra, the prosecution put forth the following contentions on
behalf of the State. Mr. Sur submitted that PW 3, 4, 5, 13 and 15 are the
sterling witnesses of the case.
77. The learned counsel contended that Joydeep Banerjee had
specifically spoken of the acrimonious relationship between the appellant and
the deceased and even stated that incidents of the appellant assaulting the
deceased had been reported to him by the neighbours. On the date of
occurrence, at around 12 noon, on reaching the house of the victim Piklu, PW3
had found him sitting injured on the ground floor and the appellant standing
on the staircase. On enquiring the victim had disclosed that the appellant had
(2021) 10 SCC 725
assaulted him and pushed him down the staircase resulting in him falling
down and getting injured. Thereafter at night around 12.05 am he had received
a call from Noa informing him that the appellant had again assaulted the
victim but feeling uneasy to interfere with their family matters, he had switched
off his phone. Subsequently, at about 1.45 am he had been informed by Noa on
his wife's phone that the victim Piklu had expired.
78. The learned counsel submitted that PW 4 Noa had stated in his
evidence that around 12.30 pm on the date of incident, one Sonali had
informed him that the victim had been assaulted by the appellant and was
lying outside in a bleeding condition. At 1.00 pm, he had informed Joydeep
about the incident. At 6.30 pm and 9.00 pm he had again met the victim and
was chased out by the appellant. While leaving he had allegedly heard hot
altercations between the appellant and the victim. At around 11.40 pm he was
informed by Champa that the condition of the victim had worsened and he had
informed the same to Joydeep.
79. The learned counsel also drew attention the evidence of PW5, the
maid Champa had stated that when she had come back to the house at around
1.30 pm she had found a cut injury mark on the left side of the victim's
forehead and on query, the victim had pointed to the appellant's room. Further,
while bathing him, Champa had noticed a line of wound marks on his back the
cause of which the victim stated was being beaten with a stick by the
appellant. Thereafter, at 10.30 pm she had found the victim sitting outside his
locked room with bleeding injuries on his face and on being asked the reason,
he had again pointed towards the appellant's room. Finding the victim
shivering and groaning in pain at around 11.45 pm she had called Noa who
after his arrival had called Joydeep to inform him of the victim's condition at
around 1 am.
80. Mr. Sur also referenced the evidence of PW13, Shaktipada
Banerjee the compounder who had in his evidence stated that he had visited
the victim's house at around 2.30 pm and told the appellant that the victim
required hospitalisation for stitching his wounds as this was not a case of
simple dressing but his medical advice was not paid heed to.
81. It is contended by the learned counsel that from the aforesaid
evidence, it was established that a bitter relationship existed in between the
two brothers, the appellant used to assault the victim and on the fateful day
the appellant had caused injury to the victim and prevented proper treatment
from being meted out to him. All throughout the day, the appellant had
remained negligent with regard to the treatment of his brother even when it
was suggested by PW-13, the compounder.
82. It was also submitted that the appellant ought to have special
knowledge as to how and why his brother had received such physical injuries
and was lying severely injured in his residence. The burden of explaining a
situation, facts and circumstances of which should be within his special
knowledge as per provision of Section 106 of the Indian Evidence Act is on the
accused however, no such explanation was given under Section 313 of Cr.P.C.
Our Observations:
83. The conviction is based on circumstantial evidence.
84. In the landmark judgment rendered in the case of Sharad
Birdichand Sharda v State of Maharashtra 9 the Hon'ble Supreme Court
laid down the five principles for conviction of an accused in a case based on
circumstantial evidence.
"153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. It may be noted here that
this Court indicated that the circumstances concerned 'must or
should' and not 'may be' established. There is not only a
grammatical but a legal distinction between 'may be proved'
and 'must be or should be proved' as was held by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2
SCC 793] where the following observations were made: 19.
..."Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and the
mental distance between 'may be' and 'must be' is long and
divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency,
(1984) 4 SCC 116
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial evidence."
(emphasis supplied)
85. It is a settled principle of criminal jurisprudence that in a case
revolving around circumstantial evidence, the prosecution must prove the guilt
of the accused 'beyond reasonable doubt' and the circumstances relied upon
must point out only towards one hypothesis, that is, the guilt of the accused
alone and none else [See Guna Mahto v State of Jharkhand10]. In the
present case, the prosecution has miserably failed to form a chain of
circumstances leading to the commission of the crime, much less prove it
beyond all reasonable doubt, based on oral and documentary evidence.
86. To the contrary, as rightly pointed out by the learned counsel for
the appellant, there are material contradictions in the evidence led by the most
vital witnesses for the prosecution as discussed hereunder.
87. PW4, Noa had stated that after being informed by Sonali and
thereafter Indrajit and Dilip, he had informed Joydeep of the victim lying in a
bleeding condition at around 1pm when he had gone to Golpark. However, this
contradicts the version of PW3 who had narrated that at around 12 after being
(2023) 6 SCC 817
informed by Indrajit and Dilip he had visited the appellant's house where he
had found him in a bleeding condition and thereafter after arranging for a
compounder, he had left for Golpark.
88. PW5, Champa the attendant had deposed that on returning to the
house at 1.30 pm, and finding a cut injury mark on Piklu's forehead and thereafter
a line of wound marks while bathing him, she had dressed his wounds. She
claimed that on enquiring, Piklu had pointed his finger towards the door of the
appellant and had also stated that the appellant had beaten him with a stick used
to beat dogs. Even after the compounder advised hospitalisation, she had not
taken any steps in persuading Ranadip or informing anyone else to hospitalise him
and had only applied Nevasal powder, as suggested by the appellant. However, the
evidence will show that the victim recovered from the initial trauma by the evening
and he was found gossiping with Noa and was found to be cheerful and had also
eaten chips with Noa.
89. The prosecution has heavily relied upon the evidence of Shaktipada
Banerjee, the compounder who had clinically examined Piklu on 23 rd afternoon at
around 2.30 pm and suggested hospitalization as dressing would not be enough
having regard to the nature of the wound. Shakti has further deposed that
Ranadip had refused to take the victim to the nearby hospital and he instead
suggested dressing of the wound. However prior thereto Champa claimed to
have dressed the wounds with Nevasal powder.
90. Noa had also stated in his evidence that at around 6.30 pm when
he visited the victim he had found him in his cot in the first floor room in good
condition. At 9pm he had purchased a packet of chips and the victim had
shared chips with him. This version also contradicts that of PW3 who had
deposed that when he had sent Noa with a packet of chips in the evening, the
victim was not in a condition to chew chips.
91. The aforesaid evidence is contradictory as to time when the
complainant Joydeep was informed of the victim's condition after the morning
incident- whether he was informed by Dilip and Indrajit at around 12 pm and
therefore he had visited Piklu and then left for Golpark after arranging for
medical attention or whether he was informed by Noa at around 1pm in
Golpark and had asked him to arrange for a compounder. Further, it also
raises the question as to whether the victim was in a good condition at around
9 pm during the visit by Noa or whether he was in such a painful condition
that he was unable to chew chips. The inherent contradictions in the
testimonies of PW3 and PW4 in this regard, despite being essential witnesses
shakes the trust to be reposed in them and raises doubt as to the chain of
circumstances sought to be established. Moreover, the physical assault in the
morning leading to injury of the victim was not the cause of his death.
92. Sonali and Indrajit would have been important witnesses in this
regard to testify as to who had first seen Piklu lying in an injured condition and
who had informed the complainant and Noa. Dilip Dey, PW16 has stated that
he was called by Joydeep and he had gone to Piklu's house along with Krishna
and Suraj but Champa was not present there. He testified that Piklu was found
with injuries over his forehead and body on the first floor and they had cleaned
the injuries as per instruction of Joydeep and had left. He has also notably
stated that they could hear the two brothers quarrel when they cleaned
vehicles near their house. Suraj Singh, PW12 has stated in this regard that he
had seen Piklu sitting on the ground floor with bleeding injuries and on being
asked by Joydeep, Ranadip had stated that he had assaulted him. He has
significantly stated that when he had refused to take the victim to the first
floor, Dodon (not examined) and Krishna (not examined) had cleaned the blood
from his face and Piklu had dragged himself to the first floor on his own.
Though the evidence of Dilip and Suraj corroborates the version of PW3 to
some extent, there are also contradictions as to whether they had informed
Joydeep or were called by him and where they had found the victim.
93. It is also important to note that after returning to the house
around 10.30 pm, Champa had found that Piklu was sitting in front of his
room with the door locked from outside with bleeding injuries, asking for
drinking water but she did not inform Ranadip about it. On asking him the
reason for such a condition he had pointed towards the appellant's room. She
had then given him water, dressed his injuries and laid him down on the
mattress. Finding him shivering and groaning in pain, she informed Noa at
11.45 pm but neither of them took any steps either to inform the tenants or the
neighbours or the police or made any attempt to take the victim to a nearby
hospital or even arrange for a doctor. Curiously the appellant was not informed
as he was found deep asleep when Champa returned to work at night.
94. Contrary to the evidence of Joydeep and PW6, that the victim was
found covered in blood, no pool of blood was found but marks of wounds with
blood oozing were visible from the photographs exhibited. Further, his unusual
conduct of not taking any steps to hospitalise Piklu even after the compounder
and Noa informed him of the victim's condition and switching off his mobile
phone at night knowing well that his cousin brother was injured and lying
bleeding in pain, casts a veil of doubt on his role as a complainant and
evidence adduced. Surprisingly, the first reaction of Joydeep on learning that
his cousin brother was injured and not responding was not to call for medical
help or hospitalisation, but calling the police and asking Noa and Champa to
refrain from touching any items lying around. This creates an impression that
the complainant had already formed the opinion that the victim had no
chances of survival and instead of ascertaining his death first or trying
resuscitation, he informed the police so as to initiate a case.
95. The evidence of Joydeep is also interesting as in the FIR he has
stated that when he arrived at the place of occurrence on the night of incident
he confronted Ranadeep and at that time Ranadeep had stated that "ami ja
korechi besh korechi tora beriye ja" which means "whatever I have done I have
done the correct thing and you must all leave immediately". However, in his
evidence he has stated that Ranadip was asleep when the police arrived and
did not refer to any conversation/confrontation with Ranadip or Ranadip
having said any such thing. The I.O. has also not stated in his evidence of such
exchange of words between the accused and Joydeep in his presence. This
statement is also not corroborated by Noa and Champa who were present at
the relevant time.
96. If Joydeep's version is taken to be true, then he was informed by
Dilip and Indrajit that Piklu was pushed down the staircase in the morning and
resultantly had sustained injuries and a deep cut injury on the left side of his
forehead. Though he was attended to by a compounder, having regard to the
nature of this injuries which was not a simple case of dressing as stated by
PW13, his condition had not improved even by 9 pm as he was prevented from
being hospitalised by Ranadip. However, as Noa was chased out and he felt
uncomfortable interfering in their family matters, the victim was left without
any medical help. Subsequently, as informed by Champa through Noa at
12.05 am, his condition had worsened being assaulted again by the appellant
in the evening and had finally succumbed to his fatal injuries at around 1.45
am at night.
97. However, if Noa's version is to be believed, he had been informed
by the tea-stall owner Sonali (not examined) and subsequently by Dilip and
Indrajit (not examined) that the victim was laying outside the house in an
injured condition. He had not gone to visit Piklu's house immediately but had
informed Joydeep when he went to Golpark at around around 1 pm. When he
visited Piklu around 1.20 pm he stated that he was well. Even at 6.30 pm in
the evening he had found the victim in a good condition and had also shared
chips with him at 9 pm. Noa admitted to have been present till 9.30 until he
claimed to have been chased out by the appellant. The victim by that time had
recovered and was in no discomfort. Subsequently, he was allegedly freshly
assaulted by Ranadip though witnessed by no one and had suffered more
bleeding injuries as a result. On finding the victim with painful bleeding
injuries at 10.30 pm, Champa had dressed his wounds with Navasal powder
and claimed that he had pointed to the appellant's room when asked the
reason for such condition. Noa stated that when he was called at 11.45 pm
and arrived, the victim had told him that Ranadip had assaulted him. The
victim failing to get any professional medical help, had succumbed to his
injuries around 2 am.
98. Interestingly, PW8 who happens to a neighbour and a friend of
Joydeep, had deposed that he had witnessed Rinku quarrelling with and
assaulting Piklu on previous occasions and had reported such incident to
Joydeep. However, he did not hear any commotion or quarrel between the
brothers on the date of the incident even though his house is adjacent to the
house where Ranadip and his brother used to reside.
99. It appears from the testimonies discussed hereinabove that Piklu
had sustained a deep cut injury over his left eyebrow in the morning along with
other bruises. As opined by the compounder he required hospitalisation but
was deprived of such urgent professional medical attention. His condition had
deteriorated over time and he had eventually succumbed to his painful
bleeding injuries due to lack of care and attention even from people like his
attendant Champa, regular visitor Noa and cousin brother Joydeep who was
informed of his physical condition and claimed to have taken good care of his
cousin brother.
100. The police found one checkered trousers, one jeans, one mat with
blood-stains, one blood stained pillow, one blood clotted white colour plastic
pipe with electric wiring and portion of blood from floor through a cotton in the
room where the victim was lying. On breaking open the locked door of the
victim, one white iron made water pipe with blood stain, old pillow with blood
stains, white bed cover with blood stains and blood samples collected in cotton
were recovered and seized.
101. The prosecution claims that the blood-stained rod recovered from
the room is the offending weapon but did not take any steps for forensic
examination to ascertain whether the blood found on it matched that of the
victim or whether fingerprints of the accused were present on it. Though PW19,
the post mortem doctor opined that the nature of injuries on the dead body
could be caused by an iron rod which can produce both bruise as well as
fractures and bruise injuries may also be caused by a wooden stick, there is no
evidence that the said weapon was used by the appellant to commit the crime.
Though blood samples were collected from the place of occurrence and
fingerprints of the accused were taken, these were not forensically examined to
ascertain whether the accused had indeed used said iron pipe to assault the
victim.
102. The evidence of all the witnesses who claimed to have seen the
appellant going towards Kankulia railway station with a bag in his hand is
irreconcilable with the evidence of Noa and Champa. The crime is presumed to
have happened between 9.30 and 10.30 pm. That would involve brutally
assaulting Piklu, proceeding towards Kankulia railway gate to hide the
offending weapons and returning within this one hour period. The appellant
was seen to have been walking. PW 10, Abhirup Roy Chowdhury had allegedly
seen Rinku coming towards the right hand side rail quarter near Kankulia rail
gate wearing a grey colour formal pant and grey orange color t-shirt holding a
white colour polythene bag in his hand. He was again a witness close to
Joydeep as would appear from his deposition where he has stated that he had
informed Joydeep that he had seen Ranadip on 23 rd April, 2015 at about 9.30
pm. going towards Kankulia rail gate. PW 14, Hiralal Ghosh had also allegedly
seen the accused proceeding with a white colour bag towards Kankulia level
crossing and returning empty-handed a while later. Significantly none of the
witnesses have described the apparel of Ranadip on the date of incident.
103. One would wonder the incredulity of a proposition that the
accused was reckless enough to keep the offending weapon preserved together
inside a locked room and walk down Kankulia road for hiding a maroon colour
piece of cloth, a brick colour handkerchief, a red and white coloured torn
curtain, a lathi broken in three pieces and a key. None of these offending
materials mentioned above, claimed to have been seized at the instance of the
accused and in the presence of PW7 and 9, were sent for forensic examination.
There is no evidence suggesting that the said materials and objects which are
also commonly found in the marketplace contain the fingerprint of Ranadip or
that they were used in the commission of the offence or were at all connected
with the crime.
104. It is strange that investigating agency had selected PW7 and PW9
who were riding a motorcycle on 2nd May 2014 in the morning as seizure list
witnesses to the recovery of the offending weapon. It is situated near railway
quarters and none of the residents of the quarters were found suitable as
witnesses. It is normally the residents of the locality who are invited as
witnesses and in their presence recovery is made. The manner of selection of
PW7 and PW9 casts enough doubt on the reliability of the witnesses.
105. Several witnesses such as PW3,4,5 and others had seen the victim
after the initial morning incident and no attempt was made to hospitalise the
victim. After the alleged second incident of assault in the evening, which had
no eye-witnesses, Champa and Noa were present in the place of occurrence.
Champa had been making dinner arrangements while Noa had slept in the
same room as that of the appellant while the victim lay writhing in pain,
injured. It is preposterous to shift the burden on the accused to explain away
the circumstances leading to the death of the victim when the conduct of
Champa and Noa shows that there were no signs of urgency shown in calling
any medical professionals or hospitalisation if the victim was indeed so
grievously and fatally injured so as to suddenly his death. Even after his
demise, Joydeep was called followed by the police, instead of neighbours,
tenants, family members or urgent medical help to ascertain his death or
chances of revival.
106. The object of the provision i.e. Section 27 is to provide for the
admission of evidence which but for the existence of the section could not in
consequence of the preceding sections be admitted in evidence. Under Section
27 the evidence leading to discovery of any fact is admissible, provided the
information must emanate from an accused in the custody of the police. The
statement which is admissible under Section 27 is the one which is the
information leading to discovery. This doctrine is founded on the principle that
if any fact is discovered as a result of a search made on the strength of any
information obtained from an under-trial, such a discovery is a guarantee that
the information supplied by the prisoner is true. The information might be
confessional or non-inculpatory in nature but if it results in discovery of a fact,
it becomes a reliable information. [see Salvi & Ors. v. State of Karnataka11
and State of Karnataka v. David Rozario 12.]
107. In Jaffar Hussain Dastagir v. State of Maharashtra 13 in this
case it was succinctly stated that "the essential ingredient of the section is that
the information given by the accused must lead to the discovery of the fact
which is the direct outcome of such information. Secondly, only such portion of
the information given as is distinctly connected with the said recovery is
admissible against the accused. Thirdly, the discovery of the fact must relate to
the commission of some offence."
AIR 2010 SC 1974: 2010 (7) SCC 263
2002 (7) SCC 728: AIR 2002 SC 3272
1969 (2) SCC 872
108. From the aforesaid position of the law, it can be unequivocally
stated that the fact discovered must be related to the crime committed.
Further, mere recovery is not proof of the appellant having committed the
crime. [See Laxman Prasad v State of Madhya Pradesh14] However, in the
present case, even if the evidence adduced by PWs 7 and 9, the seizure
witnesses coupled with the evidence of PWs 10 and 14 who allegedly witnessed
the accused proceeding towards Kankulia rail gate to hide the said objects and
offending weapon is considered to be unimpeachable, the prosecution has not
been able to prove by a single shred of evidence that any of the items recovered
from the bush at the instance of the accused were used at all in the
commission of the offence or how it linked the accused to the crime committed
or whether said objects belonged to the accused or victim. Hence, the
applicability of Section 27 in the present case becomes a nullity.
109. It is extremely surprising if not baffling that the investigating
officer did not record the statement of the immediate neighbours and tenants of
the said premises or any other relative of the appellant to find out the
relationship between the two brothers or whether in the past there was any
attempt by Ranadip to kill his brother or that there were past incidents of any
such physical assault on the victim. The tenants would have been the best
witnesses for the prosecution. It is unbelievable that when such offence is
committed the tenants would not be aware of such assault or quarrel between
the two brothers leading to murder. Champa, Noa and Joydeep have remained
(2023) 6 SCC 399
conspicuously silent about the tenants and all the information Joydeep claimed
to have received are from his known persons. Only one neighbour had come to
depose of quarrel and earlier physical assault and he also claims to be close to
Joydeep. He however, stated that he did not hear any sound or quarrel in and
around the time the victim was assaulted that resulted in his death.
110. The motive behind the murder against the appellant is also not
established. The entire case of the prosecution is based on circumstantial
evidence. It has been held in a catena of decisions that motive is required to be
proved in a case based on circumstantial evidence.
111. In the decision in Sarbir Singh v. State of Punjab 15, the Apex
Court observed, "7. It has been impressed that suspicion and conjecture should
not take the place of legal proof. It is true that the chain of events proved by the
prosecution must show that within all human probability the offence has been
committed by the accused, but the court is expected to consider the total
cumulative effect of all the proved facts along with the motive suggested by the
prosecution which induced the accused to follow a particular path. The existence
of a motive is often an enlightening factor in a process of presumptive reasoning
in cases depending on circumstantial evidence."
112. In Nandu Singh v State of Madhya Pradesh 16, the Court
observed in paragraph 12:
"12. In a case based on substantial evidence, motive assumes great
significance. It is not as if motive alone becomes the crucial link in
1993 SCC (Cri) 860
2022 SCC OnLine SC 1454
the case to be established by the prosecution and in its absence the
case of Prosecution must be discarded. But, at the same time,
complete absence of motive assumes a different complexion and
such absence definitely weighs in favour of the accused."
(emphasis supplied)
113. In the decision in Nandu Singh's case an earlier decision of the
Apex Court in Anwar Ali v. State of Himachal Pradesh17, was quoted with
agreement, thus:--
"24. Now so far as the submission on behalf of the accused that in
the present case the prosecution has failed to establish and prove
the motive and therefore the accused deserves acquittal is
concerned, it is true that the absence of proving the motive cannot be
a ground to reject the prosecution case. It is also true and as held by
this Court in Suresh Chandra Bahri v. State of Bihar (1995 Supp (1)
SCC 80) that if motive is proved that would supply a link in the
chain of circumstantial evidence but the absence thereof cannot be a
ground to reject the prosecution case. However, at the same time, as
observed by this Court in Babu (Babu v. State of Kerala, (2010) 9
SCC 189), absence of motive in a case depending on circumstantial
evidence is a factor that weighs in favour of the accused. In paras
25 and 26, it is observed and held as under: (Babu case, SCC pp.
200- 01).
"25. In State of U.P. v. Kishanpal (2008) 16 SCC 73), this Court
examined the importance of motive in cases of circumstantial
evidence and observed : (SCC pp. 87-88, paras 38- 39)
'38. ... the motive is a thing which is primarily known to the
accused themselves and it is not possible for the prosecution to
(2020) 10 SCC 166
explain what actually promoted or excited them to commit the
particular crime.
39. The motive may be considered as a circumstance which is
relevant for assessing the evidence but if the evidence is clear
and unambiguous and the circumstances prove the guilt of the
accused, the same is not weakened even if the motive is not a
very strong one. It is also settled law that the motive loses all
its importance in a case where direct evidence of eyewitnesses
is available, because even if there may be a very strong motive
for the accused persons to commit a particular crime, they
cannot be convicted if the evidence of eyewitnesses is not
convincing. In the same way, even if there may not be an
apparent motive but if the evidence of the eyewitnesses is clear
and reliable, the absence or inadequacy of motive cannot stand
in the way of conviction.'
26. This Court has also held that the absence of motive in a case
depending on circumstantial evidence is a factor that weighs in
favour of the accused. (Vide Pannayar v. State of T.N. (2009) 9 SCC
152)". (emphasis supplied)
114. In the decision in Shivaji Chintappa Patil v. State of
Maharashtra18, after referring to the decision in Anwar Ali's case
(supra), Supreme Court observed thus:--
"27. Though in a case of direct evidence, motive would not be
relevant, in a case of circumstantial evidence, motive plays an
important link to complete the chain of circumstances."
(2021) 5 SCC 626
115. Though several witnesses have testified that the two brothers used
to have a bitter relationship and Ranadip used to allegedly assault Piklu, no
such incident was ever narrated to any of them by the victim. Champa did not
say that she had seen Ranadip assaulting the victim at earlier points in time.
Noa who used to visit regularly as he claimed did not say that he had seen
Ranadip assaulting Piklu earlier or that Piklu had reported any such incident
of physical assault to him. On the date of the occurrence, neither any tenant
nor any neighbour testified to having seen or heard of any commotion or
assault. Even Joydeep, Noa and Champa had not witnessed the appellant
physically assaulting the victim. Further, even on the consideration that such
was true, no motive has been assigned to the appellant at all for such assaults.
No possible reason either has been advanced to support the theory that he
used to physically assault his elder, handicapped brother without any rhyme or
reason.
116. In the present case, Ranadip had taken care of his brother as is
evident from the deposition of PW 4,5 and 13. He was paying salary to Champa
of Rs. 5000/- per month. Champa had more requirement as her daughter was
undergoing cancer treatment and it cannot be ruled out that Joydeep was
providing the financial support. Two important witnesses namely Champa and
Noa appear to be under the control of Joydeep. Noa was a past employee of the
appellant and he was dismissed from service. Noa is fully dependent upon
Joydeep, financially or otherwise. Although no evidence has come for the
financial dependency of Champa on Joydeep, the fact remains that she used to
work in the house from 10pm to 10am and her daughter required treatment for
cancer and it is not possible for Champa to have a decent living with such
salary. According to Champa the treatment of her daughter cost Rs. 520 for
bed charge per day and about Rs. 20,000/- as monthly expenses. Champa did
not inform the health condition of the victim to his wife on the date of incident.
117. PW3, the complainant Joydeep Banerjee has notably stated in his
cross-examination that he had transferred some portion of their ancestral
property in Burdwan district to an outsider without the appellant or the
deceased having claimed their shares from the consideration price. He also
testified that he had not visited the house of Piklu for the last six months prior
to his demise and had also not stated to the police that there was an ongoing
conversation between him and the brothers concerning the partition of the
entire property. Such evidence coupled with the evidence of the appellant in his
statement under Section 313 regarding Joydeep's intentions to hand over the
residence to promoters raises suspicions regarding the intentions of the
complainant in relation to the ancestral property that he jointly owned with the
two brothers.
118. It would evince from the statement of the accused appellant
Ranadip, under Section 313 of the Cr.P.C. that he used to look after Piklu, his
older brother and pay for the attendant Champa who took care of him. Further
that Noa used to come to the appellant's house for drinking and Ranadip used
to raise objections to it. The accused has also stated that Noa and Joydeep
maintained a cordial relationship with the tenants living downstairs and they
used to come upstairs to collect water. Joydeep also had an intention of
handing over the ancestral house to a promoter.
119. In the instant case there is no eye witness. There are missing links
to connect the appellant with the crime. There are major discrepancies and
inconsistencies going to the root of the matter. We cannot completely disregard
the submission made on behalf of the appellant that having regard to the
choice of witnesses and selling of joint ancestral property the motive behind the
murder by a third person could not be completely ruled out. We are not
expressing any definite opinion in this regard but this much is clear to us that
the appellant is not the perpetrator of the crime. It seems that the prosecution
has also allowed itself to be guided by Joydeep both with regard to the
investigation and choice of witnesses, albeit unintentionally.
120. The Hon'ble Supreme Court in Nagendra Sah v. State of
Bihar,19 has observed as under:
"22. Thus, Section 106 of the Evidence Act will apply to those cases
where the prosecution has succeeded in establishing the facts from
which a reasonable inference can be drawn regarding the existence
of certain other facts which are within the special knowledge of the
Accused. When the Accused fails to offer proper explanation about
the existence of said other facts, the Court can always draw an
appropriate inference.
23. When a case is resting on circumstantial evidence, if the Accused
fails to offer a reasonable explanation in discharge of burden placed
on him by virtue of Section 106 of the Evidence Act, such a failure
may provide an additional link to the chain of circumstances. In a
2021 (10) SCC 725
case governed by circumstantial evidence, if the chain of
circumstances which is required to be established by the prosecution
is not established, the failure of the Accused to discharge the burden
Under Section 106 of the Evidence Act is not relevant at all. When
the chain is not complete, falsity of the defence is no ground to
convict the Accused."
121. Matters pre-eminently or exceptionally within the knowledge of the
accused were lucidly stated by Justice Vivian Bose in Shambu Nath Mehra v.
The State of Ajmer,20 paragraph 11 which is reproduced below:
"11. ......The word "especially" stresses that it means facts that are
pre-eminently or exceptionally within his knowledge. If the Section
were to be interpreted otherwise, it would lead to the very startling
conclusion that in a murder case the burden lies on the accused to
prove that he did not commit the murder because who could know
better than he whether he did or did not." (emphasis supplied)
122. The conviction is predicated on circumstantial evidence alone.
While circumstantial evidence is sufficient to return a conviction, this is
possible if it contains all the links that connect the accused to the incident. The
court can ignore extremely trivial and insignificant inconsistencies. However,
material contradictions are fatal and demolishes a case based on
circumstantial evidence due to failure to establish the links. As observed in
Nagaraj (supra):
"13. The conviction is predicated on circumstantial evidence alone.
Fingerprints have not been lifted from the scene, the murder weapon
AIR 1956 SC 404
has not been recovered, and any credible motive is absent. It cannot
even be contended that the accused was the last person to be seen
with the deceased since several persons including the Manager, PW
1, and the guests in the adjoining rooms could have accessed the
room where the deceased was eventually found. While
circumstantial evidence is sufficient to return a conviction, this is
possible if it contains all the links that connect the accused to the
incident, and the inconsistencies are extremely trivial in character.
Furthermore, motive assumes great significance where a conviction
is sought to be predicated on circumstantial evidence alone, and its
absence can tilt the scales in favour of the accused where all links
are not avowedly present. We think that the High Court erred in
concluding that the complicity of the accused in the murder of the
deceased had been proved beyond reasonable doubt."
123. The principles that emanate from the decided cases of
interpretation of Section 106 of the Evidence Act is that the said section is
designed to meet certain exceptional cases in which it would be impossible for
the prosecution to establish certain facts which are particularly within the
knowledge of the accused. The said Section is not intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable
doubt but it would apply to cases where the prosecution had succeeded in
proving facts for which the reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue of special
knowledge regarding such fact failed to offer any explanation which might
persuade the court to arrive at a different inference.
124. It is only after the prosecution discharges its duty of proving the
case beyond all reasonable doubt that the false-explanation or non-explanation
of the accused could be taken into consideration. In a case based on
circumstantial evidence, the non-explanation or false explanation of the
accused under Section 313 of the Cr.P.C. cannot be used as an additional link
to complete the chain of circumstances. It can only be used to fortify the
conclusion of guilt already arrived at on the basis of other proven
circumstances. [See Raja Naykar v State of Chhattisgarh 21]
125. Thus, the benefit of Section 106 can only be bestowed upon the
prosecution in a case where it has successfully proved its case beyond
reasonable doubt and offers an additional link to the chain of circumstances
aimed to be established. This provision cannot come to the aid of the
prosecution in the present case where it has failed to form and link the chain of
circumstances, even in the slightest.
126. In light of the aforesaid findings, the impugned judgment is set
aside.
127. The conviction of the appellant is quashed. The appellant should
be released forthwith.
I agree (Soumen Sen, J.)
(Uday Kumar, J.)
(2024) 3 SCC 481
