Case: Amitava Banerjee @ Amit @ Bappa Banerjee Vs. State of West Bengal

Asit Kumar Mondal, Sub-Inspector of Police was at the relevant point of time attached to Jhargram Court. His family comprised his wife and a son named Snehasish Mondal @ Babusona aged about 10/12 years residing at `B Block of Thana Quarters Complex at Ghoradhara, Jhargram. In the same complex, lived the appellant, whose father was also working as a Sub-Inspector of Police and was at the relevant time posted at Beliabera Police Station. According to the prosecution, the deceased Snehasish Mondal was friendly with the younger brother of the appellant and would usually play cricket with him in a park situate behind the residential quarters and by the side of the BDO office. A few days before the incident in question, the deceased is alleged to have come to the house of the appellant to collect a cricket bat and ball for play in the park mentioned above and seen the appellant in a compromising position with Mangala Deloi, PW10 aged about 20 years who was then working as a maid-servant in the house of the appellant. The prosecution case is that the appellant apprehended loss of face in the locality on account of a possible disclosure of his involvement with his maid-servant which according to the prosecution was the motive for silencing the innocent boy for all times by killing him in cold blood.3. On 12th of July, 1998, the deceased as usual went to play in the park but did not return home by the evening. The parents of the deceased panicked and started a search for the deceased which went fruitless. Asit Mondal, PW1 then lodged a missing report at the Jhargram Police Station who announced the disappearance of the boy in the locality on the public address system. According to Asit Mondal, in the course of the search for the missing boy he came to know that he was seen talking to the appellant and then going with him towards Kanchan Oil Mill on the latters bicycle. When the appellant returned to his quarter at 9.00 p.m. without his bicycle he was questioned about the whereabouts of the deceased and the fact that he was seen taking the boy towards the Kanchan Oil Mill but the appellant denied the same. About the bicycle the appellant stated that he had handed the same over to one of his friends.4. On July 13, 1998, Jhargram Police Station received information about a freshly dug ditch filled up with a heap of loose earth in Sitaldihi jungle close to Kanchan Oil Mill. The police on receipt of this information rushed to the spot and found that a freshly dug ditch had indeed been filled up with loose earth and that a black coloured Hero bicycle was parked against one of the trees at some distance. The Executive Magistrate of the area was summoned to the spot by the police and the earth heaped over the ditch got removed only to discover the dead body of the deceased Snehasish Mondal with his hands tied at the back and a handkerchief stuffed into its mouth. Recovery of the dead body of the deceased and conduct of an inquest by the Executive Magistrate led to the registration of FIR No.91 of 1998 for the commission of an offence under Sections 364, 302 and 201 of the IPC on the basis of a written complaint made to the above effect by Asit Kumar Mondal father of the deceased Babusona.5. The police seized the bicycle from Sitaldihi jungle besides a cap which the appellant was allegedly wearing on the date of the incident. Post-mortem examination conducted by Dr. Rajat Kanti Satpati, PW 15 proved that the deceased had died as a result of asphyxia because of throattling/strangulation which was ante-mortem and homicidal in nature. In the course of investigation the police also seized a spade which the appellant had allegedly borrowed from Jadunath Das, PW 6 and which the appellant had on the fateful day left with Rukshmini Yadav, PW 11. Statements of witnesses who had last seen the deceased, in the company of the appellant, in the park and later going towards the Kanchan Oil Mill and inside the Sitaldihi jungle were also recorded. Suffice it to say that on the completion of the investigation a charge-sheet was filed against the appellant before the Court of SDJM Jhargram who committed the case to the Court of Sessions at Midnapore. The Sessions Judge in turn transferred the same to the 5th Additional Sessions Judge Midnapore, for trial and disposal.6. At the trial the prosecution examined as many as 22 witnesses in support of its case including Asit Mondal, PW1 and his wife Smt. Chhanda Mondal, PW 14, who supported the prosecution case. Gurupada Mondal, PW 2, who reported the presence of the bicycle and the ditch in Sitaldihi jungle to the police, Sunil Deloi, PW 5 who had seen the appellant coming out of the Sitaldihi jungle on 13th July, 1998 at 5.30-6.00 a.m., Jadunath Das, PW 6 who deposed about the borrowing of the spade by the appellant on 12th July, 1998 in the morning, Rajib Roy Chowdhary, PW 7, and Jiten Sen, PW 8 both of whom saw Babusona talking to the appellant in the park and then going towards Sitaldihi jungle on the latters bicycle. Tarapada Mahato, PW 9 who saw the appellant and the deceased inside the Sitaldihi jungle on 12th July, 1998 in the evening, Rukshmini Yadav, PW 11 who testified to the appellant leaving a spade at her house on 12th July, 1998 in the evening, Tarun Banerjee, PW13 who saw the bicycle in the Sitaldihi jungle and identified it as that of the appellant. Dr. Rajat Kanti Satpati, PW 15 who conducted the post-mortem examination, Dipak Kumar Sarkar, PW-16, Executive Magistrate, who conducted the inquest, Tapan Kumar Chatterjee, PW17 who made an entry in the General Diary under S.No.463 regarding the presence of a cycle and the ditch in the jungle and Swapan Kumar Mohanti, PW20, Judicial Magistrate, who conducted the test identification parade were also examined by the prosecution apart from the Investigating Officer Shri Kushal Mitra, PW22.7. On a thorough and careful appreciation of the evidence adduced before it the Trial Court concluded that the prosecution had failed to establish the motive for the murder of the deceased as alleged by it. The Court held that Mangala Deloi, PW10 who was the star witness of the prosecution to prove the alleged motive had not supported the prosecution case in the Court. The witness had no doubt been examined even under Section 164 of Cr.P.C. where she had supported the theory underlying the alleged motive but that version had been disowned by her at the trial. Since, however, the statement of the witness under Section 164 Cr.P.C. did not constitute substantive evidence the same could not be relied upon for convicting the appellant even when the witness had admitted that she had made a statement before the Magistrate. The Court all the same held that the circumstantial evidence available on record was so strong and so unerringly pointed towards the guilt of the appellant that the absence of a motive did not make much of a difference. In paras 68 and 69 of the judgment the Trial Court summarised the incriminating circumstances that were in its opinion firmly established and that formed a complete chain proving the guilt of the appellant. The CourtIn the present case, accused Amitava was seen on 12.7.98 at about 5.30 pm at Ghoradhara park, Jhargram to take deceased Babusona therefrom by his cycle towards Kanchan Oil Mill. He was again seen at Sitaldihi jungle with Babusona and the cycle. On the same date he took the spade from the house of Jadunath. At that time he covered the handle of the spade with a piece of newspaper and tied the spade with the cycle with the help of Sutli. He kept the spade at the garden of Rukmini Yadab, PW11 at about 7/7.30 pm on the same day. He was seen in that night without his cycle. On the following day i.e. On 13.7.98 at the very morning he was seen coming out from Sitaldihi jungle without his cycle in a suspicious and frightening manner as discussed earlier. At the material point of time when the accused went to Sitaldihi jungle on 12.7.98 with deceased Babusona, the accused was wearing a chocolate coloured full pant white half genji and one reddish cap and deceased Babusona was wearing yellow-orange coloured shirt, blue half pant and slipper. At the time when the accused was found coming out of Sitaldihi jungle in the morning of 13.7.98, he was seen wearing a chocolate coloured full pant and white genji, but without the cap. The accused is identified by several witnesses. His pant and genji were also seized by the police from his house, which are also identified by the witnesses, who saw him on 12.7.98 at the afternoon and also in the morning of 13.7.98. On 13.7.98 as per information of the witnesses police had been to Sitaldihi jungle and there discovered the place where the dead body of Babusona was kept under the earth. The S.D.P.O, S.D.O and the Id. Executive Magistrate were called along with a photographer. In their presence the dead body was recovered from the ditch after unearthing the same. The cycle of Amitava, two pieces of newspaper and hawai chappal of Babusona were recovered nearby the said ditch. Those are produced in court and identified the witnesses. The dead body was identified by PW1, father of deceased Babusona, as that of his son-Babusona. He lodged the FIR at that spot. Inquest was held over the dead body of Babusona in presence of the witnesses - both by the police and also by the Executive Magistrate. The hands and legs of deceased Babusona were found to be tied with electric wire and his mouth was gagged with handkerchief. Those articles were seized and produced in court and duly identified by the seizure witnesses. Thereafter the dead body of Babusona was sent to Jhargram S.D. Hospital where post mortem examination was held by the medical Board, including the medical officer, PW15. The post mortem examination was held at 6.45 pm on 13.7.98 and the doctors opinion is that the death of Babusona took place about 24 hours back due to throttling/strangulation, which was homicidal in nature. After recording the statements of several witnesses, I.O. (PW22) arrested the accused and as shown by the accused the spade was recovered from the premises of Rukmini Yadab (PW11). That spade is produced in court and identified both Jadunath, PW 6, and Rukmini, PW 11, and that spade is produced in court and identified by both Jadunath and Rukmini. Subsequently, on 15.7.98 as per the statement of the accused his reddish cap and sandle were recovered from the bush within Sitaldihi jungle in presence of the witnesses. Those articles are produced in court and identified by the seizure witnesses. The statement of the accused leading to such discovery is also brought into evidence. The statements of witnesses, Rajib, Jiten, Mongala, Rukmini and Jadunath were recorded by the Ld. J.M. Jhargram u/section 164 Cr.P.C. Excepting Mongala, all other witnesses have given substantive evidence in court in support of their earlier statement u/section 164 Cr.P.C.69. Thus, on the basis of the aforesaid evidence, as discussed earlier, the chain of circumstantial evidence is built up and it is complete one. The standard of proof required to hold the accused guilty on circumstantial evidence is quite sufficient to establish the chain of circumstances. In my considered view, it is so complete leaving no reasonable ground for conclusion consistent with the innocence of the accused. The circumstances brought before the court is quite sufficient to conclude by holding the guilt of the accused. In the present case, there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.On the above findings the Trial Court found the appellant guilty of offences punishable under Section 302 of the IPC and sentenced him to imprisonment for life and a fine of Rs.2,000/- in default whereof the appellant was directed to undergo a further imprisonment for two months. No separate sentence was, however, awarded to the appellant for the offences punishable under Sections 364 and 201 of the IPC though the said offence held proved.9. Aggrieved by his conviction and sentence the appellant preferred an appeal before the High Court of Judicature at Calcutta. The High Court has by the judgment and order impugned in this appeal affirmed the conviction and sentence awarded to the appellant and dismissed the appeal. The High Court has while doing so re-appraised the evidence on record held that the circumstances proved at the trial were explainable on no other hypothesis except the guilt of the appellant. The High Courtwe assemble the above stated facts, evidence and circumstances and consider the same in proper perspective the circumstances and the evidence clearly lead to us to the only possible hypothesis that the appellant was the only person who was responsible for the murder of Babusona. There was no evidence before the Court to prove that deceased was found in the company of any other person on 12.7.98 before his murder. The evidence and circumstances clinchingly establishes that the appellant took away Babusona from Ghoradhara park on his cycle and Babusona was last seen by PW9 in the company of appellant in the Sitaldihi jungle and thereafter he did not return and his dead body was recovered on 13.7.98. Besides the appellant, no other person had the custody of the deceased before his murder and the entire circumstances establishes and proves that the appellant was the murderer.The present appeal by special leave assails the correctness of the view taken by the courts below. We have heard at considerable length Shri Ranjan Mukherjee learned counsel for the appellant and Shri Pradeep Ghosh, learned senior counsel for the respondent both of whom were at pains to take us through the evidence adduced at the trial.

Reasoning:
Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty. Absence of motive in a case depending entirely on circumstantial evidence is a factor that shall no doubt weigh in favour of the accused, but what the Courts need to remember is that motive is a matter which is primarily known to the accused and which the prosecution may at times find difficult to explain or establish by substantive evidence. Human nature being what it is, it is often difficult to fathom the real motivation behind the commission of a crime.The legal position as to the significance of motive and effect of its absence in a given case is fairly well-settled by the decisions of this Court to which we need not refer in detail to avoid burdening this judgmentour opinion, not only established, but they form a complete chain, that leaves no manner of doubt, that the crime with which the appellant stood charged was committed by him and no one else. The deposition of the mother of the deceased, that Babusona wanted to go to the appellant to fetch two parrots which the latter had promised, that he did after returning from the drawing tuition go to the appellant on getting a signal from him, sets the stage for drawing the deceased out of the house. He is shortly thereafter seen talking to the appellant who calls out for him in the park and carries him away on his bicycle towards Kanchan Oil Mill which fact has been proved by two witnesses whose deposition does not suffer from any embellishment or contradiction. The fact that Babusona and the appellant were seen together in Sitaldihi jungle around 6.00/6.30 p.m. on 12th July, 1998 is a highly incriminating circumstance, especially when according to the medical evidence the time of death of the deceased was also around the same time. The deceased having been last seen with the appellant around the time he was killed is a circumstance which together with other circumstances proved in the case, are explainable only on one hypothesis that the appellant was guilty of killing the deceased. The fact that the appellant had borrowed the spade, tide it with `Sutil after wrapping the wooden part with the newspaper is fully established by the statement of Jadunath Das, PW6. So also the deposit of the spade on 12th July, 1998 in the evening with Rukshmini Yadav, PW11 stands established beyond any doubt whatsoever. The presence of the newspaper near the ditch where the deceased was burried and the recovery of the `Sutli from around the neck of the deceased where it had left a ligature mark are also telling circumstances which are explainable only on the hypothesis that the appellant was the author of the crime. Recovery of the cap which according to the prosecution witnesses was worn by the appellant on the date of occurrence from Sitaldihi jungle is also a circumstance that establishes that the appellant was in the jungle on 12th July, 1998 around the place from where the dead body was recovered. Similarly, the recovery of the bicycle which the appellant owned from Sitaldihi jungle, from near the place where the dead body was burried is not explainable on any hypothesis except the guilt of the accused-appellant. The fact that the appellant had late in the evening on 12th July, 1998 left the spade at the house of Rukshmini Yadav, PW11 and entered the flat from the rear door without his chappals as also the fact that when asked where his bicycle was, he gave a false explanation too are incriminating circumstances which are important links in the chain of the circumstances.35. Mr. Mukherjees argument that Tarapada Mahato, PW9 could not have seen the boys standing in Sitaldihi jungle from inside Kanchan Oil Mill, has in our opinion, no merit whatsoever. The witness has clearly stated that he had seen the boys (appellant and the deceased) while he was going home by the path which he everyday takes for that purpose. Nowhere has the witness suggested that he had seen the boys from the precincts of the Mill. So also the argument that Tarapada Mahato, PW9 was a procured witness has not impressed us. There is nothing in the cross-examination of this witness that may warrant rejection of his testimony. The mere fact that the witness did not volunteer to go to the police to say that the two boys i.e. the appellant whom he described as a boy aged 18/19 years old and the deceased whom he described as a boy 10/11 years old, were seen by him together in the Sitaldihi jungle on 12th July, 1998, would not make the deposition of this witness suspect. The statement of this witness was recorded when the police started questioning the employees of the Mill about the incident. Narration of what the witness had seen in the course of the investigation cannot be said to be so highly belated or afterthought as to cast a doubt about the veracity of the witness especially when the witness had not seen any crime being committed. He was simply a witness to a fact which could independent of other circumstances be a wholly innocent and innocuous circumstance. The criticism of the learned counsel against the conduct of the test identification parade is also without any merit. The fact that the suspect was kept in a room separate from the room in which the witness was made to sit before the T.I. parade proceedings were held is much too clear from the statement of the magistrate who conducted the T.I. parade to call for any adverse inference. All told the investigation into the unfortunate incident and the collection of the evidence has been fair and objective. One reason for such fairness and objectivity could be the fact that the deceased and the appellant were both wards of police officials. There was, therefore, no room for favouring one over the other. In the totality of the above circumstances, we see neither any illegality, nor any miscarriage of justice in the judgments and orders under appeal to call for our interference.