Case: MD. YOUNUS ALI TARAFDAR Vs. THE STATE OF WEST BENGAL

taken out of the well was not beyond recognition. On the other hand, it is reasonably recognizable. The next submission relating to the identification on the basis of apparels which were recovered from the body is also unsustainable. T aking into account the social background of the deceased, his wardrobe can be taken to be consisting of not too many clothes. It cannot be said that the mother and brother could not have identified the clothes of the deceased. That apart, from the tag of the tailoring shop found on the apparels, the tailor – PW 8 was examined and he deposed that the clothes were stitched for the deceased. We have no doubt in approving the findings recorded by the trial court and the High Court that the dead body taken out of the well was that of Becharam Dhara and the prosecution has established the same by leading cogent evidence. 10. It is necessary to examine the circumstances which have been relied upon for conviction of the Appellant. The evidence of PW 11, Astomi Dhara who is sister of the deceased, PW 12 Kenaram, the brother of the deceased and PW 16 who is the relative of the deceased was relied upon by the prosecution to establish the connection between the Appellant and the deceased. PW 12 deposed in Court that the deceased left the house on 15.03.1984 stating that he was leaving for Atghara where the Appellant resides. PW 12 gave his Anglo-Swiss watch to the deceased. PW 11 Astomi Dhara stated in Court that the deceased informed her that he was going to meet the Appellant. PW 16 stated in Court that the deceased visited her house at 10.30 a.m. on 15.03.1984 and left at 2.30 p.m. by informing her that he will go back to his house after visiting the Appellant. After referring to the evidence of the above witnesses, it is relevant to mention that in his evidence, the Investigating Officer said that PW 11 Astomi Dhara did not inform him when her statement was initially recorded, that the deceased informed her on 15.03.1984 that he was going to visit the Appellant. From the cross-examination of PW 20- the Investigative Officer, it can be seen that he mentioned about the omission on the part of the PW 12 in his initial statement regarding the watch belonging to PW 12 being taken by the deceased on 15.03.1984. During the trial, PW 12 stated that on 19.03.1984 he and his mama-sasur- Shailendra Nath Shil were going to Baguihati Bazar by boarding a bus from Jangar More. The Appellant was in the same bus and on seeing PW 12 and his mama-sasur, the Appellant started trembling and alighted the bus one stop ahead of Baguihati. During his cross-examination, the Investigating Officer accepted that this is an improvement made by PW 12 as such incidence was not narrated to him in the initial statement made by PW 12 during the course of the investigation. 11. The prosecution strongly relied upon the recovery of the watch from the shop of PW 4. The watch belonged to PW 12 which was with the deceased when he left home on 15.03.1984. PW 4 Amar Das who was the owner of the watch shop deposed in Court that the Appellant gave a watch for repairing. He was shown the receipt given to the Appellant which was seized from the custody of the Appellant. The receipt was issued on 19.03.1984 and the watch had to be delivered on 27.03.1984. The counterfoil of the receipt was identified by PW 4 which was marked as exhibit 3 and the signature of the Appellant on the counterfoil was not denied by him. 12. The conviction of the Appellant is mainly on the basis of the recovery of the watch which was with the deceased pursuant to the confessional statement of the Appellant. According to the prosecution, the receipt issued by PW 4, the owner of the watch shop was seized from the Appellant during the course of investigation. His confessional statement was recorded pursuant to which the receipt was seized from his house. Thereafter, the watch was seized from the shop of PW 4 along with counterfoil of the receipt on which the signature of appellant was found. The contention of the defense is that the Appellant was coerced by the police into signing the counterfoil of the receipt. It was also argued that there the receipt was not seized from the house of the Appellant. 13. PW 12 did not state before the Investigating Officer that he gave his watch to the deceased when he left the house on 15.03.1984. It is clear from the cross- examination of the Investigating Officer that this statement of PW 12 was an improvement. The manner in which the confessional statement of the Appellant was recorded and the seizure of the receipt of the watch was made is not free from doubt. 14. On an overall consideration of the evidence on record, especially the evidence of PWs 11, 12 and 16 would not lead us to believe that the Appellant and the deceased were last seen together. The evidence of PWs 11 and 16 only shows that they were informed by the deceased that he was going to visit the Appellant. There is no evidence on record to show that the Appellant was last seen with the deceased. Section 106 of the Indian Evidence Act, 1872 is not applicable to the facts of the case. It cannot be said that the Appellant failed to explain as to what happened after they were last seen together especially when there is no evidence to show that they were last seen together. 15. A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the Appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the Appellant.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. There is no direct evidence regarding the involvement of the Appellant in the crime. The case of the prosecution is on basis of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence as laid down by this Court are (2017) 14 SCC 359 :14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;(3) the circumstances should be of a conclusive nature and tendency;(4) they should exclude every possible hypothesis except the one to be proved; and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (See Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487 ] , SCC p. 185, para 153; M.G. Agarwal v. State of Maharashtra [M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , AIR SC para 18.)We perused the photographs of the dead body from the original record and reject the submission made on behalf of the Appellant on this count. The dead body which was taken out of the well was not beyond recognition. On the other hand, it is reasonably recognizable. The next submission relating to the identification on the basis of apparels which were recovered from the body is also unsustainable. T aking into account the social background of the deceased, his wardrobe can be taken to be consisting of not too many clothes. It cannot be said that the mother and brother could not have identified the clothes of the deceased. That apart, from the tag of the tailoring shop found on the apparels, the tailor – PW 8 was examined and he deposed that the clothes were stitched for the deceased. We have no doubt in approving the findings recorded by the trial court and the High Court that the dead body taken out of the well was that of Becharam Dhara and the prosecution has established the same by leading cogent evidenceFrom the cross-examination of PW 20- the Investigative Officer, it can be seen that he mentioned about the omission on the part of the PW 12 in his initial statement regarding the watch belonging to PW 12 being taken by the deceased on 15.03.1984. During the trial, PW 12 stated that on 19.03.1984 he and his mama-sasur- Shailendra Nath Shil were going to Baguihati Bazar by boarding a bus from Jangar More. The Appellant was in the same bus and on seeing PW 12 and his mama-sasur, the Appellant started trembling and alighted the bus one stop ahead of Baguihati. During his cross-examination, the Investigating Officer accepted that this is an improvement made by PW 12 as such incidence was not narrated to him in the initial statement made by PW 12 during the course of the investigation12. The conviction of the Appellant is mainly on the basis of the recovery of the watch which was with the deceased pursuant to the confessional statement of the Appellant13. PW 12 did not state before the Investigating Officer that he gave his watch to the deceased when he left the house on 15.03.1984. It is clear from the cross- examination of the Investigating Officer that this statement of PW 12 was an improvement. The manner in which the confessional statement of the Appellant was recorded and the seizure of the receipt of the watch was made is not free from doubt14. On an overall consideration of the evidence on record, especially the evidence of PWs 11, 12 and 16 would not lead us to believe that the Appellant and the deceased were last seen together. The evidence of PWs 11 and 16 only shows that they were informed by the deceased that he was going to visit the Appellant. There is no evidence on record to show that the Appellant was last seen with the deceased. Section 106 of the Indian Evidence Act, 1872 is not applicable to the facts of the case. It cannot be said that the Appellant failed to explain as to what happened after they were last seen together especially when there is no evidence to show that they were last seen together15. A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the Appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the Appellant.