2011 Supreme(SC) 781

2011 (5) Supreme 620
SUPREME COURT OF INDIA
V.S. Sirpurkar and T.S. Thakur, JJ.
Amitava Banerjee @ Amit @ Bappa Banerjee — Appellant
versus
State of West Bengal — Respondent
Criminal Appeal No.1939 of 2008
Decided on : 17-8-2011

IMPORTANT POINTS
1. An appeal by special leave is not a regular appeal and Apex Court would not re-appreciate evidence except to find out whether there has been any illegality, material irregularity or miscarriage of justice. Merely because a different view is possible on the evidence adduced at the trial is no ground for the Court to upset the opinion of the Courts below, so long as the same is a reasonably possible view.
2. Failure to prove motive in cases resting on circumstantial evidence is not fatal by itself.

Headnote:Indian Penal Code,1860-Sections 302, 364 and 201 -Death by throttling-Prosecution of appellant for causing death of young boy aged 10/12 years by strangulating him and thereafter burying him in a ditch-Conviction by Trial Court-Appeal-Dismissed by High Court-Appeal-Case was based on circumstantial evidence- Circumstances not only established, but they formed a complete chain, that left no manner of doubt, that crime with which appellant stood charged was committed by him and no one else- The deposition of the mother of the deceased, that deceased wanted to go to appellant to fetch two parrots which the latter had promised, that he did after returning from drawing tuition go to appellant on getting a signal from him, set the stage for drawing deceased out of the house- Deceased was shortly thereafter seen talking to appellant who had carried him away on his bicycle towards Kanchan Oil Mill - The deceased having been last seen with the appellant around the time he was killed was a circumstance was explainable only on one hypothesis that appellant was guilty of killing deceased- The fact that appellant had borrowed the spade, tide it with ‘Sutli’ after wrapping wooden part with newspaper was fully established by statement of PW6. -The presence of newspaper near the ditch where deceased was burried and recovery of ‘Sutli’ from around neck of deceased where it had left a ligature mark were also telling circumstances - Recovery of cap worn by appellant on the date of occurrence and recovery of bicycle which appellant owned from Sitaldihi jungle, from near the place where dead body was burried was not explainable on any hypothesis except guilt of accused-appellant- Neither any illegality, nor any miscarriage of justice found in impugned judgments so as to warrant interference-Appeal dismissed. (Paras 34 to 36)

       Facts of the Case :

        Appellant was prosecuted herein in the instant case for causing death of young boy aged 10/12 years by strangulating him and thereafter burying him in a ditch. Trial Court convicted appellant for said offence. Appeal thereagainst was dismissed by High Court.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Instant Case was based on circumstantial evidence. Circumstances not only established, but they formed a complete chain, that left no manner of doubt, that crime with which appellant stood charged was committed by him and no one else. The deposition of the mother of the deceased, that deceased wanted to go to appellant to fetch two parrots which the latter had promised, that he did after returning from drawing tuition go to appellant on getting a signal from him, set the stage for drawing deceased out of the house. Deceased was shortly thereafter seen talking to appellant who and carried him away on his bicycle towards Kanchan Oil Mill which fact had been proved by two witnesses . The fact that deceased and appellant were seen together in Sitaldihi jungle around 6.00/6.30 p.m. on date of occurrence was a highly incriminating circumstance, especially when according to medical evidence time of death of deceased was also around the same time. The deceased having been last seen with the appellant around the time he was killed was a circumstance which together with other circumstances proved in the case, was explainable only on one hypothesis that appellant was guilty of killing deceased. The fact that appellant had borrowed the spade, tide it with ‘Sutil’ after wrapping wooden part with newspaper was fully established by statement of PW6. The presence of newspaper near the ditch where deceased was burried and recovery of ‘Sutli’ from around neck of deceased where it had left a ligature mark were also telling circumstances explainable only on the hypothesis that appellant was author of crime. Recovery of cap worn by appellant on the date of occurrence and recovery of bicycle which appellant owned from Sitaldihi jungle, from near the place where the dead body was burried was not explainable on any hypothesis except guilt of accused-appellant. Neither any illegality, nor any miscarriage of justice was found in impugned judgments so as to warrant interference. Appeal was Dismissed.