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SUPREME COURT OF INDIA
L. NAGESWARA RAO, DEEPAK GUPTA, JJ.
Md. Younus Ali Tarafdar - Appellant
Versus
The State of West Bengal - Respondent
Criminal Appeal No 119 of 2010
Decided On : 20-02-2020
Indian Penal Code, 1860 – Sections 302/34 and 201/34 – Indian Evidence Act, 1872 – Section 106 – Murder and disappearance of evidence – Common intention – Conviction and sentence – There is no direct evidence regarding involvement of Appellant in crime – Case of prosecution is on basis of circumstantial evidence – Conviction of Appellant is mainly on the basis of recovery of watch which was with deceased pursuant to confessional statement of Appellant – Manner in which confessional statement of Appellant was recorded and seizure of receipt of watch was made is not free from doubt – There is no evidence on record to show that Appellant was last seen with deceased – Section 106 of Indian Evidence Act, 1872 is not applicable to facts of the case – It cannot be said that Appellant failed to explain as to what happened after they were last seen together especially when there is no evidence to show that they were last seen together – Circumstances relied upon by prosecution to prove guilt of Appellant were not complete and do not lead to conclusion that in all human probability murder must have been committed by Appellant – Judgment of High Court set aside – Appellant acquitted of charges under Section 302 read with Section 34 and Section 201 read with Section 34 of IPC. (Paras 8, 12, 13, 14, 15 and 16)
Facts of the case:
Present Criminal Appeal arises from judgment of the High Court of Calcutta by which conviction of the Appellant under Section 302 read with Section 34 and Section 201 read with Section 34 of IPC.
Findings of the Court:
Close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the Appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the Appellant.
Result : Appeal allowed.
JUDGMENT :
L. NAGESWARA RAO, J.
1. The present Criminal Appeal arises from the judgment of the High Court of Calcutta by which the conviction of the Appellant under Section 302 read with Section 34 and Section 201 read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘theIPC’) was affirmed.
2. On 20.03.1984, a phone call was received from Bhaskar Gupta, PW 6 by Rajarhat Police Station that a dead body was found in a well inside the garden. The Investigating Officer PW 20, reached the place of occurrence at 6.05 p.m. and saw a body floating in the well. The dead body could not be taken out as it was dark by then. A First Information Report was registered and the sketch map of place of incident was prepared. The body was brought out of the well the next day.
3. PW 18 Dr. Santosh Kumar Biswas conducted the post-mortem of the body on 21.03.1984. He found the following injuries:
“1. One circular ligature mark on the neck at the level of hyoid bone. The width of the ligature mark was 2”. On dissection I found that below, above and beneath the ligature mark all the soft tissues were damaged and I also noticed fracture of hyoid bone.
2. Two ligature marks on both the wrist joints of the deceased. There was no damage of soft tissues in this region.
3. Two circular ligature marks were seen in both the ankle joints of the deceased.”
According to the Doctor, the body was partially decomposed. The cause of death was mentioned as Asphyxia as a result of injury No.1 which was antemortem and homicidal in nature which was done by strangulation. The Doctor deposed in Court and stated that the larynx and trachea were highly congested and hyoid bone was fractured.
4. During the course of investigation, the apparels on the body were seized. The photographs of the body were taken and cremation of the body was done as it was already in a decomposed state. One Kenaram Dhara along with his mother appeared at Rajarhat Police Station on 25.03.1984 and complained that Becharam Dhara @ Ashok was missing since 16.03.1984. When they were shown the apparels and photographs of the body which was already buried, they identified that the body was of Becharam Dhara.
5. On information received during the course of investigation, the Appellant was arrested. Pursuant to the confession made by the Appellant, an Anglo-Swiss watch was seized from A.C. Watch Company situated at Aswini Nagar, Baguihati. The case of the prosecution is that the wrist watch belongs to Kenaram Dhara PW 12 who is the brother of the deceased, Becharam Dhara. He stated before the Court that he gave his wrist watch to his brother when he left the house on 15.03.1984.
6. On completion of the investigation, the Appellant along with three others were charged with committing the murder of Becharam Dhara and concealing the body. The trial court convicted the Appellant for offences under Section 302 read with Section 34 and Section 201 read with Section 34 of the IPC. The other accused were acquitted as the trial court was of the opinion that the prosecution could not establish their guilt. The Appellant was sentenced to undergo rigorous imprisonment for life for the offence under Section 302 read with Section 34 and rigorous imprisonment for nine months for offence under Section 201 read with Section 34 of the IPC. The appeal of the Appellant was dismissed by the High Court and judgment of the trial court was affirmed.
7. On appreciation of the evidence on record, the trial court concluded that there was sufficient evidence to point to the guilt of the Appellant. The deceased and the Appellant were friends. The Appellant used to visit the house of the deceased. PW 11, Astomi Dhara, who was the sister of the deceased, deposed in Court that the deceased left the house by telling her that he was going to visit the Appellant. The evidence of PW 12 who was the brother of the deceased was similar to the effect that the deceased, Becharam Dhara, informed him that he was going to Atghara where the
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