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

2. Briefly stated, case of the prosecution is that deceased Anjali Goswami was married to one Karuna Sindhu Goswami. Her husband used to run a line hotel at Mohd. Bazar and he died in a road accident in the year 2000. Her daughter committed suicide in the year 2006 and son also died in a road accident in the year 2008. Anjali started looking after the business of line hotel of her husband but subsequently leased out the same to PW14-Bhagyadhar Dhibar and started a beauty parlour and a cloth shop at Mohd. Bazar which she subsequently shifted to Suri in a rented accommodation of PW10-Manash Chakraborty. Fourth appellant-accused Durga Sutradhar was engaged by Anjali to run her beauty parlour. Anjali purchased a house at Nutanpally, Suri and started residing there. While so residing, first accused Kiriti Pal became acquainted with Anajli and developed friendship and intimacy and frequently used to visit Anjalis residence.3. On the fateful day of 11.11.2008, deceased-Anjali saying that she has to attend a function at Rajnagar went out with first accused on his motor cycle and on the following day i.e. 12.11.2008, she was found dead. On the basis of complaint lodged by PW1-Swapan Mondal on 12.11.2008, around 9.45 a.m. a case was registered at Sadaipur P.S. Case No.74/2008 under Section 302 IPC on the death of unknown female lying in a jungle locally called as Babuibona Jungle 25 kms away from Anjalis house. Her neck was tied with one end of saree she was wearing and the other end of the saree was tied with tree (Sonajahuri) suggesting that the death was homicide. PW37-Santosh Kumar Ghosh, Sub Inspector of Police, who registered the F.I.R. had taken up the initial investigation. PW37 inspected the spot and arranged for photographs and made seizure and recovered material articles from the spot where the dead body was lying. Dead body was identified as that of Anjali Goswami by PW8-Arunasish Goswami, nephew of the deceased. PW37 conducted inquest and sent the dead body for post-mortem examination. PW29 Dr. Debasis Sarkar conducted autopsy on the body of Anjali and found lacerated wounds over parietal area and left frontal area and other injuries on the body of the deceased and issued ext.27 post-mortem certificate opining that the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. PW29 also opined that injury found in the labia minora could be caused by forcible sexual intercourse on a woman.4. PW38 Ardhendu Sekhar Pahari, Inspector CID taken up the matter and conducted further investigation. First accused Kiriti Pal was arrested on 15.1.2009 and based on his confessional statement, he seized Hero Honda motor cycle black colour bearing No. WB-54D/8148 and other objects. Based on his statement, A-4 Durga Sutradhar was also arrested on 15.1.2009. Based on his confessional statement, second accused Siddique Mia and third accused Mustaque Mia were arrested on 16.1.2009. Pursuant to the statement of Siddiquie Mia PW38 seized one TVS Fiero red colour motor cycle bearing No. WB-54B/8245 with its key and mobile nokia handset marked as seizure list Ext/17/3. Pursuant to statement of A-2, A3 Mustaque Mia led to the recovery of one nokia mobile handset, one gold finger ring with inscription of letters `Anjali, one silver made chain with one amethyst and red coral fitted with it were seized under Ext.18/3. During the course of investigation, PW38 collected the call details of the accused and also the phone of Saraswati Pal wife of Kiriti Pal-first accused. Investigation revealed that the murder was a result of conspiracy between all the four accused. After completion of investigation, charge sheet was filed against three accused, A1 to A3 under Section 302/120B/34/376(2)(g) IPC and Sections 25, 27, 35 of the Arms Act. Fourth accused Durga Sutradhar was charged under Section 120B read with Section 302 IPC.5. The accused were committed to the sessions court where the charges were framed against the accused and the appellants-accused pleaded not guilty. To bring home the guilt of the accused, the prosecution has examined 38 witnesses and exhibited number of documents and material objects. Upon appreciation of evidence, the learned Sessions Court vide its judgment dated 26.7.2011 and 29.7.2011 convicted the appellants A1 to A3 for offences under Section 302 IPC and sentenced them to death. Appellants A1 to A3 were also convicted for the offence under Section 376(2)(g) IPC and each of them were sentenced to undergo life imprisonment with fine of Rs.5,000/- each with default clause. For conviction under Section 120B-criminal conspiracy to commit the murder, all the appellants-accused were sentenced to imprisonment for life with fine of Rs.5,000/-each with default clause. For the conviction under Section 25(1)(a)(b) of the Arms Act, appellants 1 to 3 were sentenced to undergo imprisonment for three years and to pay a fine of Rs.5,000/- each with default clause.6. For confirmation of death sentence imposed on the appellants 1 to 3, State preferred Death Reference No.3/2011 before the Calcutta High Court. Assailing the correctness of their conviction and sentence, accused 1 to 3 preferred criminal appeal 471/2011 and fourth accused preferred criminal appeal 484/2011. The High Court partly allowed the appeal by setting aside the conviction under Section 376(2)(g) IPC and for the conviction under Section 302 IPC modified the sentence of death to life imprisonment. High Court confirmed the conviction of fourth accused Durga Sutradhar under Section 120B IPC and sentence of life imprisonment imposed on her. In these appeals, the appellants-accused 1 to 4 assail the correctness of the impugned judgment of the High Court.Briefly stated, case of the prosecution is that deceased Anjali Goswami was married to one Karuna Sindhu Goswami. Her husband used to run a line hotel at Mohd. Bazar and he died in a road accident in the year 2000. Her daughter committed suicide in the year 2006 and son also died in a road accident in the year 2008. Anjali started looking after the business of line hotel of her husband but subsequently leased out the same to PW14-Bhagyadhar Dhibar and started a beauty parlour and a cloth shop at Mohd. Bazar which she subsequently shifted to Suri in a rented accommodation of PW10-Manash Chakraborty. Fourth appellant-accused Durga Sutradhar was engaged by Anjali to run her beauty parlour. Anjali purchased a house at Nutanpally, Suri and started residing there. While so residing, first accused Kiriti Pal became acquainted with Anajli and developed friendship and intimacy and frequently used to visit Anjalis residence.3. On the fateful day of 11.11.2008, deceased-Anjali saying that she has to attend a function at Rajnagar went out with first accused on his motor cycle and on the following day i.e. 12.11.2008, she was found dead. On the basis of complaint lodged by PW1-Swapan Mondal on 12.11.2008, around 9.45 a.m. a case was registered at Sadaipur P.S. Case No.74/2008 under Section 302 IPC on the death of unknown female lying in a jungle locally called as Babuibona Jungle 25 kms away from Anjalis house. Her neck was tied with one end of saree she was wearing and the other end of the saree was tied with tree (Sonajahuri) suggesting that the death was homicide. PW37-Santosh Kumar Ghosh, Sub Inspector of Police, who registered the F.I.R. had taken up the initial investigation. PW37 inspected the spot and arranged for photographs and made seizure and recovered material articles from the spot where the dead body was lying. Dead body was identified as that of Anjali Goswami by PW8-Arunasish Goswami, nephew of the deceased. PW37 conducted inquest and sent the dead body for post-mortem examination. PW29 Dr. Debasis Sarkar conducted autopsy on the body of Anjali and found lacerated wounds over parietal area and left frontal area and other injuries on the body of the deceased and issued ext.27 post-mortem certificate opining that the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. PW29 also opined that injury found in the labia minora could be caused by forcible sexual intercourse on a woman.4. PW38 Ardhendu Sekhar Pahari, Inspector CID taken up the matter and conducted further investigation. First accused Kiriti Pal was arrested on 15.1.2009 and based on his confessional statement, he seized Hero Honda motor cycle black colour bearing No. WB-54D/8148 and other objects. Based on his statement, A-4 Durga Sutradhar was also arrested on 15.1.2009. Based on his confessional statement, second accused Siddique Mia and third accused Mustaque Mia were arrested on 16.1.2009. Pursuant to the statement of Siddiquie Mia PW38 seized one TVS Fiero red colour motor cycle bearing No. WB-54B/8245 with its key and mobile nokia handset marked as seizure list Ext/17/3. Pursuant to statement of A-2, A3 Mustaque Mia led to the recovery of one nokia mobile handset, one gold finger ring with inscription of letters `Anjali, one silver made chain with one amethyst and red coral fitted with it were seized under Ext.18/3. During the course of investigation, PW38 collected the call details of the accused and also the phone of Saraswati Pal wife of Kiriti Pal-first accused. Investigation revealed that the murder was a result of conspiracy between all the four accused. After completion of investigation, charge sheet was filed against three accused, A1 to A3 under Section 302/120B/34/376(2)(g) IPC and Sections 25, 27, 35 of the Arms Act. Fourth accused Durga Sutradhar was charged under Section 120B read with Section 302 IPC.5. The accused were committed to the sessions court where the charges were framed against the accused and the appellants-accused pleaded not guilty. To bring home the guilt of the accused, the prosecution has examined 38 witnesses and exhibited number of documents and material objects. Upon appreciation of evidence, the learned Sessions Court vide its judgment dated 26.7.2011 and 29.7.2011 convicted the appellants A1 to A3 for offences under Section 302 IPC and sentenced them to death. Appellants A1 to A3 were also convicted for the offence under Section 376(2)(g) IPC and each of them were sentenced to undergo life imprisonment with fine of Rs.5,000/- each with default clause. For conviction under Section 120B-criminal conspiracy to commit the murder, all the appellants-accused were sentenced to imprisonment for life with fine of Rs.5,000/-each with default clause. For the conviction under Section 25(1)(a)(b) of the Arms Act, appellants 1 to 3 were sentenced to undergo imprisonment for three years and to pay a fine of Rs.5,000/- each with default clause.6. For confirmation of death sentence imposed on the appellants 1 to 3, State preferred Death Reference No.3/2011 before the Calcutta High Court. Assailing the correctness of their conviction and sentence, accused 1 to 3 preferred criminal appeal 471/2011 and fourth accused preferred criminal appeal 484/2011. The High Court partly allowed the appeal by setting aside the conviction under Section 376(2)(g) IPC and for the conviction under Section 302 IPC modified the sentence of death to life imprisonment. High Court confirmed the conviction of fourth accused Durga Sutradhar under Section 120B IPC and sentence of life imprisonment imposed on her. In these appeals, the appellants-accused 1 to 4 assail the correctness of the impugned judgment of the High

Reasoning:
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.