Md.Younus Ali Tarafdar vs The State Of West Bengal on 20 February, 2020


Supreme Court of India

Md.Younus Ali Tarafdar vs The State Of West Bengal on 20 February, 2020

Author: 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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