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

3. Brief facts necessary for disposal of these appeals are as follows:One of the deceased Pritam Chakraborty who was aged aboutyears, was a student of Vivekananda Institution, Howrah. He was staying with his widowed mother Purnima Chakrabortyat Mouza 5/2/1, Katapukar 3rd bylane, Kadamtala, Howrah. The second deceased Rudra Parui who was of the same age as Pritam, was his classmate and a good friend. He was residing with is father Uttam Kumar Paruiat Mouza 62, Tantipara Lane, P.S. Shibpur, Distt. Howrah Apart from going to school together, they also used to go for tutorial classes together in the evening. It is the prosecution case that deceased Pritam was having a love affair with one Reshma Gupta. It is stated thatMousam Singha Roy was also in love with said Reshma. Because of this twist of love triangle, the prosecution alleges that said accused Mousam was jealous or angry with deceased Pritam. It is because of this on 1.12.1998 appellant Mousam allegedly made a telephone call to Pritam at the residence of latters maternal uncle Sibananda Bhattacharjeewith whom Pritam and his motherwere residing. The telephone call in question was received byat about 8 a.m. and the caller identified himself as Mousam, a friend of Pritam who desired to speak to Pritam. Thereuponcalled Pritam and handed over the phone to him. During the conversation on the telephone,found Pritam perturbed and shaky therefore after the conversationasked Pritam what the matter was. Though Pritam did not say anything in the beginning on being rebuked byhe replied that Mousam had asked him to come to Howrah Bridge later in the night for whichtold him not to go there as desired by Mousam, Pritam then replied that since his friend Rudra (the other deceased) was going to accompany him there need be no apprehension. It is the further case of prosecution that in the evening Pritam did not come back to his house from the tutorial class even by about 8.45 p.m. which was the normal time for him to return home after the tutorial class so his motherabout thecomforted his sister by saying that Pritam might have gone by xeroxing some of his papers.waited till about 9.30 p.m., then went in search of Pritam to the tutorial school and on the way he met the father of Rudra, Uttam Kumar Parui (and some others. They toldthat even Rudra had not returned from coaching class and they were searching for him. So all of them together went to the coaching class were they were told by the Principal of the Coaching class, Mrinal Mukherjeethat the boys had already left the class. Thereafter at about 11p.m.and other local people went to the Bantra Police Station and gave a verbal informationthe missing of theboys to the Police Officer there. It is further stated that PWs, 1, 9 and others went to the Howrah Station and searched for them on Howrah Bridge and even told the personnel of Government Railway Police Station (GRPS)the missing boysand also gave them the description of the boys.9 and others continued the search the search for the boys even on 2.12.1998 morning and being unsuccessful in their efforts, went to Bantra Police Station and lodged a missing Diary. Thereafter, they went to their house. It is the case of the prosecution that on 2.12.1998 at abouta.m. Debasish Sarkarand Arun Polleycame to the house ofand informed him that they had seen Pritam and Rudra in the company of accused near the Howrah Bridge on the night of 1.12.1998. After listening to PWs2. and 3,with his relatives went tohouse and told himon he got from PWs. 2 and 3. According toafter getting the information about PWs. 2 and 3, he along withand others searched for the boys and unable to trace them he went to Bantra P.S. and again reminded them ofthe missing boysbut he was told by the Police since missing diary is recorded only in the morning, he will have to wait for some more time.4. Since even till 3.12.1998 morning no information was receivedthe missing boyswent again to Bantra PS. and lodged a written complaint which was signed by him and marked as Ex.1. In the said complaint names of accused persons were mentioned. It is the prosecution case that on 4.12.1998 the dead body of Pritam was traced near Hooghly Dock which was identified byand on 7.12.1998 the body of Rudra was found which was identified byIn the course of postmortem the doctor found certaininjuries on the body of Pritam, he noted that injuries suffered by said deceased were due to manual strangulation and something. He also recorded that Pritams death was due tostrangulation. On the body of Rudra the doctor found certain bruises and contusions which werein nature. The doctor opined that his death was due to the effect of asphyxia as a result of drowning which wasand homicidal in nature.5. During the course of investigation the accused persons were arrested and the police recovered a latter allegedly written byfrom the house of appellant Bikash Jaiswal @ VikkyPolice also recovered an exercise book (khata) from which pages were torn for the purpose of writing the letter which was found in the house of MousamDuring the course of investigation the Police came to know that on 1.12.1998 when PWs. 2 and 3 were standing near the power house on the road leading to Howrah Bridge these witnesses had noticed the appellants and the deceased going towards the Howrah Bridge. It is during the course of this investigation on 5.12.1998, one Rajesh Tiwariappeared in the Police Station and told the Investigating Officer that on 1.12.1998 at about 8.50 p.m. when he was returning from Bara Bazar, Calcutta to his house after making certain purchases, he had seen the accused persons engaged in a quarrel with 2 boys on the footpath of Howrah Bridge. On further investigation it was found on 1.12.1998 one Dibyendu Sheewhile coming back from a game of cricket had found Mousamand a tall boy walking ahead of him and he could overhear a conversation in which Mousam allegedly told the tally boy together it could happen on that day".further says that out of curiosity he asked the tall boy what would happen on that day to which the tall boy replied that the matter related to his friends Pritam and Mousam. At that point of time this tall boy also made a gesture of moving his right hand horizontally indicating the nature of act. On further investigation the Police came to know that PWs.23 and 24 who were Duty Constables on the Howrah Bridge had come to know from some passerby that 2 persons, either a boy and a girl or 2 boys had jumped into the Ganges from the bridge. This was at about 9 or 9.05 p.m. When these Constables proceeded to the place of incident they noticed aboutpersons there therefore25 to the Police Station to inform the duty officer and he started clearing the crowd. This witness also witnessed a cycle near Post No.12 of Howrah Bridge and therefore he took possession of the same. This witness also says when he was there, 2 Constables from Post No.12 visited the place of incident. It is based on these facts the appellants were charged and found guilty of the offences, as stated above.

Reasoning:
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.