Circumstantial evidence, including the last-seen principle and failure to explain circumstances of a child's death, uphold conviction under sections 302, 201 of the IPC.

Judgment :

MD. SHABBAR RASHIDI, J.

1. The Death Reference and the two appeals have arisen out of the common impugned judgment of conviction dated February 27, 2024 and the order of sentence dated February 29, 2024 passed by learned Additional Sessions Judge, Fast Track Court - I, Howrah, in Sessions Trial No. 139 of 2016.

2. By the impugned judgment, the appellants were found guilty and were convicted for the offence punishable under Sections 302/201/34 of the Indian Penal Code, 1860. Consequently, by the impugned order of sentence, the appellants were sentenced to death for the offence punishable under Section 302 of the Code of 1860. The appellants were further sentenced to suffer rigorous imprisonment of 5 years with fine of ₹10,000/- each for the offence punishable under Section 201 of the Indian Penal Code. In default of payment of fine, the convicts were to suffer rigorous imprisonment for a further period of one year each.

3. Learned advocate representing the appellant Sk. Vannur Sha submitted that the confession made by a co accused cannot be considered as the primary evidence. It is contended that the prosecution must come up with certain primary evidence in support of its case and only after that, a confession made by a co accused can be considered for proving the case of the prosecution.

4. Learned advocate for such appellant also submitted that the evidence of PW13 cannot be relied upon for the same suffers from material infirmities telling upon its veracity. Timeline stated by such witness does not match with the sequence of events. Referring to the evidence of PW15, it is contended that the person who is said to arrange a rented accommodation for the appellants was not examined by the prosecution.

5. Learned advocate for Sk. Vannur Sha also contended that according to the narration given by PW13, the appellants with the victim child started residing at his house since December 23, 2015 and stayed there for 15 days. In such sequence of events the appellants must have left the house of PW13 around January 6, 2016 to January 8, 2016 whereas, the dead body of the child was recovered at Howrah Station on January 24, 2016. The prosecution has not been able to establish the whereabouts of the appellants between January 8, 2016 and January 23, 2016.

6. It was further submitted by learned advocate for appellant Sk. Vannur Sha that PW13 could not produce any document to establish that the appellants stayed at his house on rent. Besides that, the son of PW13 and his neighbours were not examined by the prosecution, in support of the statement of PW13. For such reason the testimony of PW13 cannot be relied upon. It was also contended that the prosecution has not proved that the victim child was in the company of the appellants in an around the time of his death. Therefore, the appellants cannot be obliged to explain the circumstances of death of the victim based on Section 106 of the Indian Evidence Act, 1872.

7. Learned advocate for such appellant also submitted that the CCTV footage produced on behalf of the prosecution is not supported by a certificate under Section 65B of the evidence Act, and as such, the CCTV footage cannot be relied upon to convict the appellants. It was also submitted that the appellant Sk. Vannur Sha was not confronted with the statement of the co-accused recorded under Section 164 of the Criminal Proced