Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(SC) 1616

2008(8) Supreme 41
SUPREME COURT OF INDIA
(From Calcutta High Court)
Dr. Arijit Pasayat and P. Sathasivam, JJ.
Mohd. Azad @ Samin — Appellant
versus
State of West Bengal — Respondent
Criminal Appeal No. 1729 of 2008
(Arising out of SLP (Crl.) No.4055 of 2006)
(With Criminal Appeal No. 1730 of 2008
@SLP(Crl.) No.5212/2006)
Decided on : 05-11-2008

Advocates appeared:
For the Appellant :S.K. Bhattacharya and Shankar Divate (A.C.), Advocates.
For the Respondent:Altaf Ahmed, Sr. Adv., Tara Chandra Sharma and Ms. Neelam Sharma, Advocates.

IMPORTANT POINT
Conviction can be based solely on circumstantial evidence provided it is tested by the touch-stone of law relating to circumstantial evidence laid down in AIR 1952 SC 343.

Headnote:(a) Criminal Trial – Circumstantial evidence – Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (Para 9)
        AIR 1977 SC 1063; AIR 1956 SC 316; AIR 1983 SC 446; AIR 1985 SC 1224; AIR 1987 SC 350; AIR 1989 SC 1890; (1996) 10 SCC 193; AIR 1990 SC 79; 1992 Crl.LJ 1104 – Relied upon.
        (b) Criminal Trial – Circumstantial evidence – Conviction can be based solely on circumstantial evidence provided it is tested by the touch-stone of law relating to circumstantial evidence laid down in AIR 1952 SC 343. (Para 14)
        AIR 1952 SC 343 – Relied upon.
        (c) Criminal Trial – Circumstantial evidence – Onus was on the prosecution to prove that the chain is complete – The infirmity of lacuna in prosecution cannot be cured by false defence or plea. (Para 16)
        AIR 1984 SC 1622; (2003)8 SCC 180; (2003)11 SCC 261; Cr. A. No.185/2005 – Relied upon.
        (d) Criminal Trial – Last seen theory – The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Para 18)
        (2005)3 SCC 114; (2006)10 SCC 172; (2005)12 SCC 438; Cr. A. No.185/2005 – Relied upon.
        (e) Extra-judicial Confession – Scope, applicability and evidentiary value discussed. (Paras 21 and 22)
       Facts of the case :
        1. On 10.2.1994 one Dead body was found in the south east corner of the Christian cemetery.
        2. On 17.2.94 the Police arrested accused Md. Nadir.
        3. Learned Additional Sessions Judge, Ist Court, Alipore, in the district of 24 Parganas (South) found the appellants guilty, and convicted and sentenced them.
        4. High Court dismissed the appeal filed by the appellants.
       Finding of the Court :
        There is no merit in the appeals.
       Result : Appeals dismissed.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. In these appeals challenge is to the judgment of a Division Bench of the Calcutta High Court dismissing the appeal filed by the appellants. Both the appellants were convicted for offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’). Three persons were accused of the alleged offences. One of them, i.e. Md. Nayeen @ Raju did not face the trial. Learned Additional Sessions Judge, Ist Court, Alipore, in the district of 24 Parganas (South) in Sessions Trial No.1(1) of 1995 found the appellants guilty, and convicted and sentenced them.

3. Prosecution version as unfolded during trial is as follows:

One Tarence Stanley Arland son of late Joseph William Arland serving as the Secretary of the Christian Cemetery located at 184, Acharya Jagadish Chandra Bose Road, Calcutta-17 was working in his office at the said premises on 10.2.1994. At about 3 P.M. on that day one Lakshman Singh a Gardner of the cemetery came to Mr. Arland in his office and informed him that a boy aged about 10/12 had come to him earlier and informed him that a dead body was lying on the south east corner of the said cemetery. On getting such information from Lakshman Singh, Mr. Arland asked Lakshman Singh to go and ascertain as to whether the information of the boy was at all correct. Lakshman Singh left the office and after sometime came back to Mr. Arland and reported that the dead body with a cut mark on the back was lying on its back in a half dug position at the south eastern corner of the cemetery. Having learnt this from Lakshman Singh, Mr. Arland and Lakshman Singh went to the place at which the dead body was lying and found that a person aged about 25/26 years, wearing a blue colored sweater and jeans pantaloon and having gaping wound on the neck was lying at the south east corner of the cemetery. Mr. Arland then called out to the man repeatedly so as to ascertain as to whether the man had any life. But, he did not get any response. Mr. Arland also noticed some quantity of blood on the ground at a distance of about 10 feet to the north of that person lying dead. He could not ascertain the identity of the dead body. Then Mr. Arland came back to his office and informed the Beniapukar police station over phone of the matter being sure that the man was murdered by some unknown persons and was left within the cemetery in a half buried condition. On getting such information from Mr. Arland on phone Beniapukar Police came to the Christian Cemetery within 10 to 15 minutes and Mr. Arland was examined by the police. Mr. Arland gave a statement to the police regarding the said incident and his statement was recorded by the police. Mr. Arland then went through the statement and signed the same. He then went to the spot alongwith two of his employees so as to help in the matter of lifting the dead body from the spot. Mr. Arland then called one Sheo Sagar and another employee so as to help the police. Police then lifted the dead body from the spot with the help of those employees. Police then prepared a report and Mr. Arland signed it. Police also prepared three seizure lists in his presence in regard to many articles like earth stained with blood, some burnt black and greenish plastics stained with blood, some quantity of control earth, one black shoe with one socks inside, one cement slab, one blue jeans and one blue sweater, which the dead body was wearing and another deep brown socks lying under the cement slab. Police found the dead body under the cement slab. The seizure lists as were prepared by the police were signed by Mr. Arland along with other witnesses. Police also labelled the seized articles in presence of Mr. Arland and other witnesses and they also signed such labels. As police left the spot after doing their job, Mr. Arland came back to his office within the cemetery. The statement of Mr. Arland as given to the police and recorded by the police

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2008 Supreme(SC) 1616

IMPORTANT POINT Conviction can be based solely on circumstantial evidence provided it is tested by the touch-stone of law relating to circumstantial evidence laid down in AIR 1952 SC 343.

Cases Referred (18)

IMPORTANT POINT
Conviction can be based solely on circumstantial evidence provided it is tested by the touch-stone of law relating to circumstantial evidence laid down in AIR 1952 SC 343.