REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 831 of 2007

SK. Yusuf

…Appellant

Versus

State of West Bengal

…Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This criminal appeal has been preferred against the judgment

and order dated 28.06.2006 passed by the High Court of Calcutta in

C.R.A.No. 229 of 2000, by which it dismissed the appeal of the

appellant against the judgment and order of conviction dated

26.5.2000 passed by the Additional Sessions Judge, First Court,

Burdwan in Sessions Trial No. 7 of 1999, convicting the appellant

under Sections 302 and 201 of the Indian Penal code, 1860

(hereinafter referred to as `IPC’) and appellant has been imposed the

sentence to suffer rigorous imprisonment for life under Section 302

IPC and sentence of one year under Section 201 IPC. Both the

sentences have been directed to run concurrently.

2.

The facts and circumstances giving rise to this case are that:

(A)

On 31.08.1991, Sahanara Khatun, daughter of Abdul Rajak,

resident of village Batrish Bigha, PS: Jamalpur, aged 13 years, had

gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did

not return till 10.30 A.M., her father Abdul Rajak alongwith Habibur

Rahaman and Sirajul Islam went to search her, however, could not

trace her in the jhinga field. They looked for her in bamboo grove in

nearby graveyard and found a freshly dug earth, thus, they removed

the soil and found the dead body of Sahanara Khatun.

(B)

Imdad Ali (PW.1) lodged the FIR on the same day at 12.05

hours under Sections 302 and 201 IPC at Police Station Jamalpur,

District Burdwan at a distance of 8 kilometres from the place of

occurrence, wherein the appellant was named as accused on the

suspicion that appellant was seen by Abdul Rashid (PW.5) and

Swapan Murmu catching fish in the canal adjoining his jhinga field

and was also seen talking with deceased. The appellant was having a

spade in his hand, when it is inquired from the appellant, he replied

that he had gone to catch the fish near railway track. Subsequently,

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the appellant absconded. In the FIR, it had already been mentioned

before committing the murder, Yusuf, the appellant tried to commit

rape and on being resisted by the deceased, the appellant assaulted her

on her head with spade and murdered and buried her in the graveyard.

Thus, investigation ensued. The appellant was arrested on 7.9.1991 by

the villagers in the paddy fields near Batrish Bigha and handed over to

the police. It was on his disclosure that an old spade, one ghuni and

one enamel thala (plate) were recovered. After completing the

investigation, chargesheet was filed against the appellant. He denied

his involvement in the crime pleading not guilty. Thus, he was put to

trial. The prosecution examined 19 witnesses to prove its case.

(C)

After conclusion of the trial, the Additional Sessions Judge,

Burdwan, vide judgment and order dated 26.5.2000 found the

appellant guilty of offences punishable under Sections 302 and 201

IPC and sentenced him to life imprisonment and fine of Rs.1,000/-

under Section 302 IPC and further sentenced to one year rigorous

imprisonment and fine of Rs.500/- under Section 201 IPC.

(D)

Being aggrieved from the aforesaid judgment, the appellant

preferred Criminal Appeal No. 229 of 2000 in the High Court of

Calcutta which has been dismissed vide judgment and order dated

28.6.2006. Hence, this appeal.

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3.

Shri R.K. Gupta, learned Amicus Curiae, has submitted that it

is a case of circumstantial evidence. There is no evidence on record

that Sahanara Khatun, deceased, was seen with the appellant at the

place of occurrence. The spade recovered by the Investigating Officer

during investigation had not been sent for chemical analysis. The trial

court as well as the High Court place