Case: Kiriti Pal &amp; Others Vs. State of West Bengal &amp; Others

9.11.2008. Ext.34 shows Saraswati gave 7 calls to Siddique Mia during the period from 11.11.2008 to 14.11.2008. Documentary evidence indicates that Siddique Mia made 13 calls to Saraswati during the period from 10.11.2008 to 27.11.2008. Ext.35 shows that Saraswati gave 38 calls to Durga Sutradhar during the period from 11.11.2008 to 20.11.2008. Documentary evidence also indicates that all the accused were in contact with one another over the phone. Scrutiny of call details revealed that on 11.11.2008 Saraswati gave 2 calls to Anjali. One call was at 12.55 hours and another call was at 12.58 hours and 4 calls to Siddique Mia, first call was at 9.55 hours and the last call was at 17.20 hrs. Documentary evidence further indicates that on 11.11.2008 Siddique Mia had a telephonic conversation with Mustaque Mia around 19.19 hours and Siddique Mia had also telephonic conversation with Saraswati and the first call was around 9.55 hours and the last call was at 21.42 hours. Saraswati had a telephonic conversation too with Durga Sutradhar on that date and there were six incoming and outgoing calls. The first call was around 10.57 hours and the last call was at 17.57 hours. 25. Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that first accused hatched a conspiracy. There is no evidence to prove as to how the appellants 2 and 3 ( Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence was adduced by the prosecution to establish the conspiracy. 26. Apart from telephonic conversation, prosecution also relied upon recoveries made pursuant to the confessional statement of the appellants 2 and 3 (Siddique Mia and Mustaque Mia). Pursuant to the statement of Siddique Mia one TVS Fiero red colour motor cycle bearing No. WB-54B/8245 with its key and nokia mobile handset (phone No.9932345230) were seized under Ext.17/3. Pursuant to the statement of Mustaque Mia nokia mobile handset having connection No. 9932705533, one gold finger ring in the shape of a flower with inscription of letter `Anjali, and silver made chain with one Amethist and red coral fitted with it were seized under Ext. 18/3. Recoveries made and seizure list were sought to be proved by examination of PW17-Uttam Mondal. PW17 had deposed that he knew deceased Anjali. PW17 was then employed in the hotel run by Bhagyadhar Dhibar which was owned by Anjali. In his evidence PW17 stated that in January 2009, two or three gentlemen came to his hotel and took his signature and that he did not know why his signatures were being taken. Though PW17 identified his signatures in the seizure list, evidence of PW17 no way establishes recoveries being made at the instance of the accused 2 and 3. Evidence of PW17 is far from convincing and is not of much assistance to the prosecution as he has not clearly spoken about the recoveries and the seizure list. The gold ring and silver made chain recovered were also not shown to the other witnesses for being identified as that of Anjali. No other evidence was adduced by the prosecution to substantiate the recovery of objects and the seizure list. 27. Sofar as the complicity of fourth accused-Durga Sutradhar, the prosecution mainly relied upon the call record and judicial confession of Durga recorded by Judicial Magistrate, 2nd Court, Suri, Birbhum (Ext.26). Prosecution relied upon the recovery a notebook seized from the possession of appellant Durga Sutradhar where she has written Kiritis phone number clandestinely coded as `Dadu. Ext. 30 call records of Kiriti Pal phone also revealed that there were number of calls from Kiriti Pal to fourth appellant. Like in the case of appellants No. 2 and 3 (Siddique Mia and Mustaque Mia) apart from telephone calls, no other evidence was adduced by the prosecution to bring home the guilt of fourth accused-Durga Sutradhar. Insofar as the judicial confessional statement recorded under Section 164 Cr.P.C., it is not an inculpatory statement; but it is only to the effect of showing the subsequent conduct of A-1 Kiriti Pal in threatening Durga Sutradhar-fourth appellant not to disclose anything to the police. In our view, neither the telephone calls between the first appellant-Kiriti Pal and Durga Sutradhar-fourth appellant nor her confessional statement by themselves would be sufficient to establish the guilt of fourth appellant. 28. In a case based on circumstantial evidence, the court must adopt a very conscious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the accused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must be consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each and every hypothesis put forward by the accused however farfetched it may be. As discussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against appellants 2 and 3 (Siddique Mia and Mustaque Mia) do not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant-Durga Sutradhar under Section 120B cannot be sustained and is liable to be set aside.

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

Explanation:
0[ds]11.2008 and that at about 10.00/10.30 p.m., first appellant Kiriti Pal came alone. The theory of "last seen alive" comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. On the next day morning at about 9.30 a.m., body of deceased Anjali was found in Babuibona jungle an isolated place which is 25 k.m. away from her residence. The place where the dead body was found was connected with Rajnagar - Suri Road. The time when Anjali left with first appellant-Kiriti Pal and the time she was found dead is so proximate which, in our view, points to the guilt of the first appellant.15. Having regard to the time gap being small, it is for the first appellant to explain the circumstances how and where and in what manner he parted company with Anjali. Thus, on the principle that the person who is last found in the company of another is dead or missing, the person with whom he was last found alive has to explain the circumstances in which he parted the company as pointed out by the trial court and the High Court, first appellant has failed to discharge the onus and failed to offer any explanation as to how, as to when and how and in what manner he parted the company of Anjali, is a strong militating circumstance against the first appellant-Kiriti Pal. There is force in the submission of the learned counsel for the State that the first appellant-Kiriti Pal failed to offer any explanation, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidenceinto consideration the case of prosecution in its entirety and keeping in mind the circumstances precedes and follow the point of having so last seen, "the last seen theory", in our view, is a strong incriminating circumstance in the chain of circumstances that would point to the guilt of the first appellant with someis true that motive is an important factor in cases where the conviction is based on circumstantial evidence but that does not mean in all cases of circumstantial evidence if prosecution is unable to prove the motive satisfactorily, the prosecution must fail. In this case, of course, prosecution has not adduced evidence as to what was the motive for committing murder of Anjali. But it is a matter of common knowledge that murders have been committed without any pro-eminent motive. It is well established that the mere fact that the prosecution has failed to translate the mental disposition of the accused into evidence, that does not mean that no such mental condition existed in the mind of the accused.The circumstances relied upon by the prosecution against the first appellant Kiriti Pal are well established by the prosecution. Upon appreciation of evidence, the trial court and the High Court rightly held that the incriminating circumstances against the first appellant Kiriti Pal are firmly established and form a complete chain pointing to the guilt of the accused and are consistent with the hypothesis of the guilt of the first appellant. We find no substantial ground to interfere with the conviction of the first appellant Kiriti Pal under Section 302 IPC. Insofar as the charge of rape is concerned, we agree with the view of the High Court that there is no positive evidence for sustaining the conviction under Section 376(2)(g) IPC. The conviction of the first appellant Kiriti Pal under Section 25(i)(a) (b) of Arms Act and the sentence imposed on him is confirmed.Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that first accused hatched a conspiracy. There is no evidence to prove as to how the appellants 2 and 3 ( Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence was adduced by the prosecution to establish the conspiracy.In a case based on circumstantial evidence, the court must adopt a very conscious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the accused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must be consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each and every hypothesis put forward by the accused however farfetched it may be. As discussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against appellants 2 and 3 (Siddique Mia and Mustaque Mia) do not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant-Durga Sutradhar under Section 120B cannot be sustained and is liable to be set aside.