Case: Mousam Singha Roy @ Mithun  Vs. State Of West Bengal

recovery of the exercise book from the house of Mousam, A-1 as also the letter from the house of Vikky, A-5. A perusal of the evidence of PWs.16 and 17 who were the Panch witnesses for the recovery of the exercise book shows that they have not really seen the place from where this book was recovered by the I.O. From their evidence it is noticed that in the case of the book, the I.O. went inside the house of A-1 and came out with the book. Admittedly , these Panch witnesses have not seen where exactly from the house this book was recovered. They have only spoken about the fact that the I.O. came out of the house with the book and told them that he recovered it from the room of Mousam. A-1. Almost similar is the evidence of PWs. 35 and 36 who were the Panch witnesses for the recovery of the letter from the house of Vikky, A-5. These witnesses have also not seen the actual recovery of the letter. They had only seen the I.O. who told them that the letter was recovered from the house of A-5 and signed the seizure memo. In our opinion this evidence is insufficient to prove the recovery. The very purpose of requiring a Panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found. It is absolutely necessary for these Panch witnesses to see and observe from where exactly these articles were recovered. It is not sufficient if the I.O. produced certain articles and informed the Panch witnesses that he has recovered it from a particular place, unless the actual place of recovery from where the article was recovered is seen by the Panch witnesses. In the absence of the same, their signatures on the recovery Panchnama become useless in proving the recoveries. In the instant case we have noticed that the Panch witnesses who signed the Panchnama for the recovery of the letter and the exercise book, have specifically in their evidence under oath, stated that the I.O. went inside the respective room/ house and came out the articles and told the Panch witnesses that he had recovered them. None of the Panch witnesses had seen the actual recoveries therefore, as contended by the defence, the prosecution has failed to establish the recoveries as required in law. The fact that the mother of Mousam A-1, had signed the recovery Panchnama in regard to the exercise book or mother of A-3 had signed the Panchnama for the recovery of letter from the house of A-5 is of no consequence. They are not the Panch witnesses, their evidence is not before the court. In such a situation we agree with the learned counsel for the appellants that the recoveries are not established in accordance with law hence the same has to be ignored.27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstances this Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab (AIR 1957 SC 637 ) stated thus: " It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." 28. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convicted the accused.29. We are also aware that this Court does not disturb the concurrent findings of the courts below if the same are based on legal evidence merely because another view is possible. Thus, keeping in mind the caution expressed by Baron Alderson (supra) as also the need to respect the concurrent findings of two courts below, we have assessed the evidence in this case very carefully, but in spite of the same we are unable to concur with the findings of the courts below. In our opinion, both the courts below have departed from the rule of prudence while appreciating the evidence led by the prosecution.30. On the above basis, we notice that: "a) The prosecution has not satisfactorily established the receipt of telephone call on 1.12.1998 from Mousam to deceased Pritam as spoken to by PW-1.b) the evidence of PWs.2, 3, 13 and 15 are not creditworthy hence not safe to be relief upon;c) the recoveries of the letter from the house of A-5 and the exercise book from the house of A-1 are not proved as required in law; 31. Therefore, in our opinion the circumstances relied on by the prosecution in this case are neither fully established nor are consistent with the hypothesis of the guilt of the accused. These circumstances do not exclude the hypothesis of innocence of the accused, therefore, the appellants are entitled to the benefit of reasonable doubt. Accordingly, we allow these appeals, set aside the judgments of the courts below and acquit the appellants of the charges framed against them.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]26. At this stage, it will be relevant to discuss the recoveries of a letter and a book by the prosecution which according to the prosecution establishes the further motive for murder. In this regard, the prosecution relies on the evidence ofBarun Polley andSubhro Sen to establish the fact that letter Ex. V allegedly written by accused Mousam to accused Vikky was recovered from the house of Vikky, whileSukamal Dutta andChiranjib Das were examined for the purpose of proving the recovery of exercise book (khata) from the house of accused Mousam. Prosecution has also relied upon the evidence of handwriting experts and the forensic laboratory personnel to establish the fact that the letter was in the handwriting of the accused and the pages on which the said letter was written were removed from the exercise book belonging to Mousam. The defence has seriously challenged the recovery contending that the recoveries were not proved as required in law. That part, the learned counsel for the appellants also attacked the prosecution case as to the handwriting ofin the letter as also the legality of obtaining specimen handwriting by the Police during the investigation. We do not think it is necessary for us to go into all these arguments because after examining the evidence of Panch witnesses to the recoveries, we think the prosecution has not established the recovery of the exercise book from the house of Mousam,as also the letter from the house of Vikky,A perusal of the evidence of PWs.16 and 17 who were the Panch witnesses for the recovery of the exercise book shows that they have not really seen the place from where this book was recovered by the I.O. From their evidence it is noticed that in the case of the book, the I.O. went inside the house ofand came out with the book. Admittedly , these Panch witnesses have not seen where exactly from the house this book was recovered. They have only spokenI.O. came out of the house with the book and told them that he recovered it from the room of Mousam.Almost similar is the evidence of PWs. 35 and 36 who were the Panch witnesses for the recovery of the letter from the house of Vikky,These witnesses have also not seen the actual recovery of the letter. They had only seen the I.O. who told them that the letter was recovered from the house ofand signed the seizure memo. In our opinion this evidence is insufficient to prove the recovery. The very purpose of requiring a Panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found. It is absolutely necessary for these Panch witnesses to see and observe from where exactly these articles were recovered. It is not sufficient if the I.O. produced certain articles and informed the Panch witnesses that he has recovered it from a particular place, unless the actual place of recovery from where the article was recovered is seen by the Panch witnesses. In the absence of the same, their signatures on the recovery Panchnama become useless in proving the recoveries. In the instant case we have noticed that the Panch witnesses who signed the Panchnama for the recovery of the letter and the exercise book, have specifically in their evidence under oath, stated that the I.O. went inside the respective room/ house and came out the articles and told the Panch witnesses that he had recovered them. None of the Panch witnesses had seen the actual recoveries therefore, as contended by the defence, the prosecution has failed to establish the recoveries as required in law. The fact that the mother of Mousamhad signed the recovery Panchnama in regard to the exercise book or mother ofhad signed the Panchnama for the recovery of letter from the house ofis of no consequence. They are not the Panch witnesses, their evidence is not before the court. In such a situation we agree with the learned counsel for the appellants that the recoveries are not established in accordance with law hence the same has to be ignored.27. Before we conclude, we must place on record the fact that we are not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like this goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In a similar circumstances this Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab (AIR 1957 SC 637 ) statedIt is no doubt a matter of regret that a fouland cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convicted the accused.29. We are also aware that this Court does not disturb the concurrent findings of the courts below if the same are based on legal evidence merely because another view is possible. Thus, keeping in mind the caution expressed by Baron Alderson (supra) as also the need to respect the concurrent findings of two courts below, we have assessed the evidence in this case very carefully, but in spite of the same we are unable to concur with the findings of the courts below. In our opinion, both the courts below have departed from the rule of prudence while appreciating the evidence led by the prosecution.30. On the above basis, we noticeThe prosecution has not satisfactorily established the receipt of telephone call on 1.12.1998 from Mousam to deceased Pritam as spoken to bythe evidence of PWs.2, 3, 13 and 15 are not creditworthy hence not safe to be relief upon;c) the recoveries of the letter from the house ofand the exercise book from the house ofare not proved as required inTherefore, in our opinion the circumstances relied on by the prosecution in this case are neither fully established nor are consistent with the hypothesis of the guilt of the accused. These circumstances do not exclude the hypothesis of innocence of the accused, therefore, the appellants are entitled to the benefit of reasonable doubt. Accordingly, we allow these appeals, set aside the judgments of the courts below and acquit the appellants of the charges framed against them.