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Supreme Court of India
Md.Younus Ali Tarafdar vs The State Of West Bengal on 20 February, 2020Author: L. Nageswara Rao
Bench: L. Nageswara Rao, R. Subhash Reddy
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No 119 of 2010
Md. Younus Ali Tarafdar …. Appellant(s)
Versus
The State of West Bengal ….Respondent(s)
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 ‘ the IPC’)
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
[1]
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
[2]
Asphyxia as a result of injury No.1 which was ante-
mortem 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
[3]
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.
[4]
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 Appellant
resides. PW 16 Ganga Rani, a relative of the deceased,
deposed that the deceased visited her house at 10.30
a.m. on 15.03.1984. He left around 2.30 p.m. on that
day informing her that he was going to meet the
Appellant. According to PW 4 the proprietor of the A.C.
Watch Company, the Appellant gave a watch for repair
on 19.03.1984. There can be no doubt that the dead
body recovered from the well was that of Becharam
Dhara as identified by the brother and mother from the
[5]
photographs of the dead body and the apparels worn by
the deceased. Recovery of the watch belonging to PW
12 which was given to the deceased when he left the
house on 15.03.1984 was relied upon by the trial court
as a strong circumstance to prove involvement of the
Appellant in the crime. The signature of the Appellant
on the counterfoil taken from the watch shop owner was
not denied by the Appellant. He merely stated that the
signature was taken forcibly by the police during the
course of the investigation. On basis of the said
evidence, the trial court concluded that the Appellant is
guilty of committing the murder of Becharam Dhara.
The High Court upheld the conviction after re-
appreciating the evidence on record.
8. There is no direct evidence regarding the
involvement of the Appellant in the crime. The case of
the prosecution is on basis of circumstantial evidence.
Factors to be taken into account in adjudication of cases
[6]
of circumstantial evidence as laid down by this Court
are1 :
“14. Admittedly, this is a case of
circumstantial evidence. Factors to be taken
into account in adjudication of cases of
circumstantial evidence laid down by this Court
are:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. The circumstances concerned
“must” or “should” and not “may be”
established;
(2) the facts so established should be
consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not
be explainable on any other hypothesis except
that the accused is guilty;
(3) the circumstances should be of a
conclusive nature and tendency;
(4) they should exclude every possible
hypothesis except the one to be proved; and
1 (2017) 14 SCC 359
[7]
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused. (See Sharad
Birdhichand Sarda v. State of
Maharashtra [Sharad Birdhichand
Sarda v. State of Maharashtra, (1984) 4 SCC
116 : 1984 SCC (Cri) 487] , SCC p. 185, para
153; M.G. Agarwal v. State of
Maharashtra [M.G. Agarwal v. State of
Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ
235] , AIR SC para 18.)”
9. We proceed to examine the matter in light of the
factors mentioned above. It was contended on behalf of
the Appellant that the dead body taken out from the
well was completely mutilated and that the body was
beyond identification. The family members of the
deceased were not shown the body as it was cremated
immediately. It was contended that the identification of
the body was only on the basis of photographs of the
dead body and the apparels found on the body. As the
[8]
body was eaten by maggots it cannot be believed that
the body could be identified on the basis of the
photographs shown to the mother and brother of the
deceased. We perused the photographs of the dead
body from the original record and reject the submission
made on behalf of the Appellant on this count. The
dead body which was taken out of the well was not
beyond recognition. On the other hand, it is reasonably
recognizable. The next submission relating to the
identification on the basis of apparels which were
recovered from the body is also unsustainable. Taking
into account the social background of the deceased, his
wardrobe can be taken to be consisting of not too many
clothes. It cannot be said that the mother and brother
could not have identified the clothes of the deceased.
That apart, from the tag of the tailoring shop found on
the apparels, the tailor – PW 8 was examined and he
deposed that the clothes were stitched for the
deceased. We have no doubt in approving the findings
recorded by the trial court and the High Court that the
[9]
dead body taken out of the well was that of Becharam
Dhara and the prosecution has established the same by
leading cogent evidence.
10. It is necessary to examine the circumstances which
have been relied upon for conviction of the Appellant.
The evidence of PW 11, Astomi Dhara who is sister of
the deceased, PW 12 Kenaram, the brother of the
deceased and PW 16 who is the relative of the deceased
was relied upon by the prosecution to establish the
connection between the Appellant and the deceased.
PW 12 deposed in Court that the deceased left the
house on 15.03.1984 stating that he was leaving for
Atghara where the Appellant resides. PW 12 gave his
Anglo-Swiss watch to the deceased. PW 11 Astomi
Dhara stated in Court that the deceased informed her
that he was going to meet the Appellant. PW 16 stated
in Court that the deceased visited her house at 10.30
a.m. on 15.03.1984 and left at 2.30 p.m. by informing
her that he will go back to his house after visiting the
Appellant. After referring to the evidence of the above
[10]
witnesses, it is relevant to mention that in his evidence,
the Investigating Officer said that PW 11 Astomi Dhara
did not inform him when her statement was initially
recorded, that the deceased informed her on
15.03.1984 that he was going to visit the Appellant.
From the cross-examination of PW 20- the Investigative
Officer, it can be seen that he mentioned about the
omission on the part of the PW 12 in his initial
statement regarding the watch belonging to PW 12
being taken by the deceased on 15.03.1984. During the
trial, PW 12 stated that on 19.03.1984 he and his
mama-sasur- Shailendra Nath Shil were going to
Baguihati Bazar by boarding a bus from Jangar More.
The Appellant was in the same bus and on seeing PW 12
and his mama-sasur, the Appellant started trembling
and alighted the bus one stop ahead of Baguihati.
During his cross-examination, the Investigating Officer
accepted that this is an improvement made by PW 12 as
such incidence was not narrated to him in the initial
[11]
statement made by PW 12 during the course of the
investigation.
11. The prosecution strongly relied upon the recovery
of the watch from the shop of PW 4. The watch
belonged to PW 12 which was with the deceased when
he left home on 15.03.1984. PW 4 Amar Das who was
the owner of the watch shop deposed in Court that the
Appellant gave a watch for repairing. He was shown the
receipt given to the Appellant which was seized from
the custody of the Appellant. The receipt was issued on
19.03.1984 and the watch had to be delivered on
27.03.1984. The counterfoil of the receipt was
identified by PW 4 which was marked as exhibit 3 and
the signature of the Appellant on the counterfoil was not
denied by him.
12. The conviction of the Appellant is mainly on the
basis of the recovery of the watch which was with the
deceased pursuant to the confessional statement of the
Appellant. According to the prosecution, the receipt
[12]
issued by PW 4, the owner of the watch shop
was seized from the Appellant during the course of
investigation. His confessional statement was recorded
pursuant to which the receipt was seized from his
house. Thereafter, the watch was seized from the shop
of PW 4 along with counterfoil of the receipt on which
the signature of appellant was found. The contention of
the defense is that the Appellant was coerced by the
police into signing the counterfoil of the receipt. It was
also argued that there the receipt was not seized from
the house of the Appellant.
13. PW 12 did not state before the Investigating Officer
that he gave his watch to the deceased when he left the
house on 15.03.1984. It is clear from the cross-
examination of the Investigating Officer that this
statement of PW 12 was an improvement. The manner
in which the confessional statement of the Appellant
was recorded and the seizure of the receipt of the watch
was made is not free from doubt.
[13]
14. On an overall consideration of the evidence on
record, especially the evidence of PWs 11, 12 and 16
would not lead us to believe that the Appellant and the
deceased were last seen together. The evidence of PWs
11 and 16 only shows that they were informed by the
deceased that he was going to visit the Appellant.
There is no evidence on record to show that the
Appellant was last seen with the deceased. Section 106
of the Indian Evidence Act, 1872 is not applicable to the
facts of the case. It cannot be said that the 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.
15. A 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.
[14]
16. For the aforementioned reasons, the Appeal is
allowed and the judgment of the High Court is set aside.
The Appellant is acquitted of the charges under Section
302 read with Section 34 and Section 201 read with
Section 34 of the IPC.
………………………….J.
[L. NAGESWARA RAO]
.………………………….J.
[DEEPAK GUPTA]
New Delhi,
February 20, 2020.
[15]
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