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CALCUTTA HIGH COURT
Nishita Mhatre and Samapti Chatterjee, JJ.
Mohan Singh and Ors. —Appellants
versus
State of West Bengal and Ors. —Respondents
C.R.A. No. 138 of 2008 with C.R.R. No.844 of 2008
Decided on 26.11.2014
For the Appellants:Mr. Sekhar Bose, Sr. Advocate, Mr. Sudipto Moitra, Mr. Souvik Mitter, Mr. Ashok Das, Mr. Biplab Das and Vijay Verma, Advocates
For the Respondents/State:Mr. Manjit Singh, Public Prosecutor, Mr. Pawan Kumar Gupta, Advocate
IMPORTANT POINT
Conviction based on isolated circumstances cannot lead to inevitable conclusion regarding guilt of accused.
Headnote:(A) Indian Penal Code, 1860—Sections 302/34 and 364/34—Kidnapping and murder—Screening of evidence—Common intention—Appeal against conviction—Case rests entirely on circumstantial evidence and is based on theory of “last seen together’’—Mutilated body and head of a man were found in train—If theory of last seen together is to be accepted then there should be no other persons in company of accused and victim when they are seen together for last time—It was not just appellants who were last seen together with deceased—Evidence on record merely suggests that there was litigation pending between appellants and absconding accused—There are far too many missing links in this chain and it does not lead to inevitable conclusion that it is appellants who killed deceased—Theory of last seen together has not been proved to hilt—This being a case of circumstantial evidence investigating agency ought to have left no stone unturned in order to bring home charge against appellants—Prosecution has made no efforts to recover firearms used to shoot victim—Chain of circumstantial evidence is not complete and conviction based on isolated circumstances cannot lead to inevitable conclusion regarding guilt of accused—Appellants acquitted. (Paras 17, 20, 23, 25, 27, 30, 31 and 32)
(B) Criminal Procedure Code, 1973—Section 164—Statement of accused— Statement recorded under Section 164 of Cr.P.C. cannot be used as substantive evidence—It can be used to contradict or corroborate a witness who has made statement—Maker of such statement may be cross-examined by using statement made by him under Section 164 of Cr.P.C. to demonstrate that evidence of witness is false—Credibility of prosecution witness can be impeached with aid of statement under Section 164 of Cr.P.C. (Para 24)
Result: Appeal allowed and CRR dismissed.
JUDGMENT
Nishita Mhatre, J.—A headless body of a male was found in a train at Sealdah station on 7th July, 2004 at about 10.15 p.m. The hands of the person killed were tied behind his back with a white shirt; his lower limbs had been severed from the body. The head of a man was found in a polythene bag beside the body. At about 11.50 p.m. an FIR was lodged by the In-charge, Sealdah GR.P.S. mentioning the discovery of the dead body of an unknown person in the Jammu Tawai Express which arrived at Sealdah about 8 p.m. that evening. Accordingly, a case under Sections 302 and 201 of the IPC was registered against an unknown person.
2. On the same day i.e. on 7th July, 2004 a complaint was lodged in Faizabad by Prayag Dutt Tiwari, the son of Jagadish Prasad Tiwari, complaining that his father had not returned home after leaving for work as usual at about 8.45 a.m. on 6th July, 2004. It was also mentioned that despite searching for Jagadish Prasad Tiwari over a long period of time there was no trace of him. The complaint was registered as G.D. No.24 on 7th July, 2004 at 10.30 a.m.
3. On investigation, the police found photographs in the pocket of the shirt which was used to tie the hands of the deceased. These photos were found in an envelope on which the name of Mohit Studio, Faizabad was printed. The police then went to Faizabad, U.P. to investigate further. They were informed at the studio that photographs were those of one Jagadish Prasad Tiwari. The body and the head found in the train were photographed separately and after placing the head on the body appropriately. The photographs were taken to Faizabad where the police learnt from the sons of Jagadish Prasad Tiwari that the dead body was that of their father. On further investigation it was learnt that Jagadish Prasad was last seen together with the appellants and one Marutendar Pratap Singh on 6th July, 2004 at about 10.15 a.m. travelling in a jeep. On the basis of the information received and the investigation conducted, the police arrested the appellants and Marutendar Pratap Singh who later absconded and the case against him has been filed. The appellants claimed to be tried and accordingly the case was committed to the Court of the Additional Sessions Judge, Fast Track 3rd Court being Sessions Trial No. 3(11)2006 arising out of G.R.P.S. case No.81 of 2004 dated 7th July, 2004. The appellants have been convicted after the testimony of 37 witnesses was recorded. They have been convicted under Sections 364, 302, 201 and 34 of the IPC. Each of them has been sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000 (Rupees five thousand only) and in default of payment of fine, to suffer simple imprisonment for six months for the offence committed under Section 302 read with Section 34 of the IPC. In respect of the offence punishable under Section 364 read with Section 34 of the IPC, they have been sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000 (Rupees five thousand only) each; and in default of payment of fine, to suffer simple imprisonment for six months. They have also been sentenced to suffer rigorous imprisonment for three years and have been fined Rs.5,000 (Rupees five thousand only), each in default of payment of such fine, to suffer rigorous imprisonment for six months for the offence punishable under Section 201 read with Section 34 of the IPC. All the sentences have been directed to run concurrently.
4. The learned Counsel for the appellants has argued that the case rests entirely on circumstantial evidence and is based on the theory of “last seen together”. He has pointed out that the prosecution has relied on the testimony of PWs 15 and 16 to establish the theory in this case. He submitted that a strange practice was adopted by the trial Court of allowing the prosecution to plug the loopholes in the evidence by reexamining the witnesses after its own arguments were concluded and those of the defence were partly
