Supreme Court of India
AMITAVA BANERJEE @ AMIT @ BAPPA BANERJEEversusSTATE OF WEST BENGAL
- Citation
- 2011 INSC 584
- Decided
- 17 August 2011
- Disposal
- Dismissed
- Bench
- V S SIRPURKAR
Holding
A conviction based on circumstantial evidence is sustainable even without a proved motive, provided the evidence forms a complete, exclusive chain pointing to the accused’s guilt.
Summary
The appellant, Amitava Banerjee, was accused of strangling and killing a ten‑year‑old boy, Snehasish Mondal, and burying the body in a jungle. The prosecution relied on a series of circumstantial facts – the victim’s last sighting with the accused, the accused’s bicycle and cap recovered near the burial site, a spade tied with newspaper and sutli that the accused had borrowed, and forensic evidence of homicidal strangulation. Although the motive (the accused’s alleged fear of losing face) was not proved, the trial and High Courts convicted him under IPC s.302, s.364 and s.201, sentencing him to life imprisonment. On appeal, the Supreme Court examined whether the lack of motive defeats a conviction based on circumstantial evidence and whether the prosecution’s facts satisfied the established tests for such evidence. The Court held that motive, while relevant, is not fatal to conviction if the circumstantial evidence forms a complete, unbroken chain that points exclusively to the accused’s guilt. Consequently, the conviction and sentence were upheld.
Issues considered
- The absence of proved motive can defeat a conviction based solely on circumstantial evidence.
- Whether the prosecution established a complete chain of circumstantial evidence satisfying the legal tests for conviction.
- Whether any procedural irregularities or miscarriage of justice occurred in the investigation and trial.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 164
- Indian Penal Code, 1860s. 201, s. 302, s. 364
Subjects
circumstantial evidencemotivemurderIPC s.302chain of evidencelife imprisonmentappealcriminal law
Judgment
[2011] 12 S.C.R. 160
A AMITAVA BANERJEE @ AMIT @ BAPPA BANERJEE
v.
STATE OF WEST BENGAL
(Criminal Appeal No.1939 of 2008)
AUGUST 17, 2011
B
[V.S. SIRPURKAR AND T.S. THAKUR, JJ.]
PENAL CODE, 1860: s. 302 - Conviction under -
Allegation against the accused that he strangulated and killed
c the victim and buried his dead body - Trial court convicted
the accused holding that although motive was not proved but
circumstantial evidence was so strong and so unerringly
pointed towards the guilt of the appellant that the absence of
a motive did not make much of a difference - High Court
0 upheld the order of the trial court - On appeal, held: There
were number of incriminating circumstances pointing towards
the guilt of the accused viz. the deposition of mother of the
victim that the victim wanted to go with th_e accused to fetch
parrots as promised by the accused; victim having been last
E seen with the accused near the place of incident around the
time he was killed; recovery of cap worn by accused and his
bicycle from near the place where dead body of the victim was
buried; deposition of PW6 that the accused had borrowed the
spade, tied it with 'Sutli' after wrapping the wooden part of the
spade with the newspaper; presence of the newspaper near
F the ditch where the victim was buried and the recovery of the
'Sutli' from around the neck of the victim where it had left a
ligature mark were also telling circumstances which were
explainable only on the hypothesis that the accused was the
author of the crime - The circumstances were not only
G established, but they formed a complete chain, that left no
manner of doubt, that the crime with which the accused stood
charged was committed by him and no one else - Conviction
upheld.
H 160
AMITAVA BANERJEE @AMIT @ BAPPA BANERJEE 161
v. STATE OF WEST BENGAL
CRIMINAL LAW· Motive - Significance of, and effect of A
·its absence - Discussed.
The prosecution case was that the appellant
strangulated the victim-deceased to death and buried his
dead body in jungle. The trial court convicted the B
appellant under s.ection 302 IPC. It held that although
prosecution failed to prove the motive for murder of the
victim, however, circumstantial evidence available on
record was so strong and so unerringly pointed towards
the guilt of the appellant that the absence of a motive did C
not make much of a difference. The High Court upheld
the order of the trial court. The instant appeal was filed
challenging the order of the High Court.
Dismissing the appeal, the Court
D
. HELD: 1. Motive for the commission of an offence,
no doubt, assumes greater importance in cases resting
on circumstantial evidence than those in which direct
evidence regarding commission of the offence is
available. Yet failure to prove motive in cases resting on
E
circumstantial evidence is not fatal by itself. All that the
absence of motive for the commission of the offence
results in is that the court shall have to be more careful
and circumspect in scrutinizing the evidence to ensure
that suspicion does not take the place of proof while
finding the accused guilty. Absence of motive in a case F
depending entirely on circumstantial evidence is a factor
that shall no doubt weigh in favour of the accused, but
what the Courts need to remember is that motive is a
matter which is primarily known to the accused and
which the prosecution may at times find difficult to G
explain or establish by substantive evidence. Human
nature being what it is, it is often difficult to fathom the
real motivation behind the commission of a crime. [Para
27] [180-D-G] .
H
162 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Dhananjoy Chatterjee alias Dhana v. State of WB. 1994
(2) SCC 220: 1995 (4) Suppl. SCC 498; Surinder Pal Jain
v. Delhi Administration 1993 Suppl. (3) SCC 91: 1993 (1)
SCR 260; Tarseem Kumar v. Delhi Administration 1994
Suppl. (3) SCC 367: 1994 (2) Suppl. SCR 740; Jagdish v.
s State of M.P. 2009 (12) Scale 580; Mulakh Raj and Ors v.
Satish Kumar and Ors. 1992 (3) SCC 43: 1992 (2) SCR 484
- relied on.
2. The deposition of the mother of the deceased, that
the deceased wanted to go to the appellant to fetch two
C parrots which the latter had promised, that after returning
from the drawing tuition he went go to the appellant on
getting a signal from him, sets the stage for drawing the
deceased out of the house. He was shortly thereafter
seen talking to the appellant who called out for him in the
D park and carried him away on his bicycle towards
Kanchan Oil Mill which fact was proved by two witnesses
whose deposition did not suffer from any embellishment
or contradiction. The fact that the deceased and the
appellant were seen together in Sitaldihi jungle around
E 6.00/6.30 p.m. on 12th July, 1998 was a highly
incriminating circumstance, especially when according to
the medical evidence the time of death of the deceased
was also around the same time. The deceased having
been last seen with the appellant around the time he was
F killed was a circumstance which together with other
circumstances proved in the case, were explainable only
on one hypothesis that the appellant was guilty of killing
the deceased. The fact that the appellant had borrowed
the spade, tide it with 'Sutli' after wrapping the wooden
G part with the newspaper was fully established by the
statement of PW6. So also the deposit of the spade on
12th July, 1998 in the evening with PW11 stood
established beyond any doubt whatsoever. The presence
of the newspaper near the ditch where the deceased was
H burried and the recovery of the 'Sutli' from around the
AMITAVA BANERJEE @ AMIT @ SAPPA BANERJEE 163
v. STATE OF WEST BENGAL
neck of the deceased where it had left a ligature mark A
were also telling circumstances which were explainable .
only on the hypothesis that the appellant was the author
of the crime. Recovery of the cap which according to the
prosecution witnesses was worn by the appellant on the
date of occurrence from Sitaldihi jungle was also a s
circumstance that established that the appellant was in
the jungle on 12th July, 1998 around the place from where
the dead body was recovered. Similarly, the recovery of
the bicycle which the appellant owned from Sitaldihi
jungle, from near the place where the dead body was c
buried was not explainable on any hypothesis except the
guilt of the accused-appellant. The fact that the appellant
had late in the evening on 12th July, 1998 left the spade
at the house of PW11 and entered the flat from the rear
door without his chappals as also the fact that when 0
asked where his bicycle was, he gave a false explanation
' too were incriminating circumstances which were
important links in the chain of the circumstances. These
circumstances were not only established, but they
formed a complete chain, that left no manner of doubt,
that the crime with which the appellant stood charged E
was committed by him and no one else. [Para 34] [188-
B-H; 189-A-C]
Birdhichand Sarda v. State of Maharashtra 1984 (4) sec
116: 1985 (1) SCR 88; Tanviben Pankaj Kumar Divetia v. F
State of Gujarat 1997(7) SCC 156: 1997 (1) Suppl. SCR 96;
State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru 2005
(11) SCC 600: 2005 (2) Suppl. SCR 79; Vikram Singh &
Ors. v. State of Punjab 2010 (3) SCC 56: 2010 (2) SCR 22;
Aftab Ahmad Ansari v. State of Uttaranchal 2010 (2) sec G
583: 2010 (1) SCR 1027 - relied on.
3. The argument that the employee of the Kanchal Oil
Mill, PW9 could not have seen the boys standing in
Sitaldihi jungle from inside Kanchan Oil Mill was not H
164 SUPREME COURT REPORTS [2011] 12 S.C.R.
A acceptable. The witness had clearly stated that he had
seen the boys (appellant and the deceased) while he was
going home by the path which he everyday takes for that
purpose. Nowhere has the witness suggested that he
had seen the boys from the precincts of the Mill. There
B was nothing in the cross-examination of this witness that
warranted rejection of his testimony. The mere fact that
the witness did not volunteer to go to the police to say
that the two boys i.e. the appellant whom he described
as a boy aged 18/19 years old and the deceased whom
c he described as a boy 10/11 years old, were seen by him
together in the Sitaldihi jungle on 12th July, 1998, would
not make the deposition of this witness suspect. The
statement of this witness was recorded when the police
started questioning the employees of the Mill about the
0 incident. Narration of what the witness had seen in the
course of the investigation cannot be said to be so highly
belated or afterthought as to cast a doubt about the
veracity of the witness especially when the witness had
not seen any crime being conrriitted. He was simply a
E witness to a fact which could independent of other
circumstances be a wholly innocent and innocuous
circumstance. The fact that the suspect was kept in a
room separate from the room in which the witness was
made to sit before the T.I. parade proceedings were held
is much too clear from the statement of the magistrate
F who conducted the T.I. parade to call for any adverse
inference. All told the investigation into the unfortunate
incident and the collection of the evidence has been fair
and objective. One reason for such fairness and
objectivity could be the fact that the deceased and the
G appellant were both wards of police officials. There was,
therefore, no room for favouring one over the other. In
the totality of the circumstances, there was neither any
illegality, nor any miscarriage of justice in the judgments
and orders under appeal to call for interference. [Para 35)
H [189-D-H; 190-A-D]
AMITAVA BANERJEE @AMIT@ BAPPA BANERJEE 165
v. STATE OF WEST BENGAL
Radha Mohan Singh alias Lal Saheb and Ors. v. State A
of U.P. AIR 2006 SC 951: 2006 (1) SCR 519; Bhagwan
Singh v. State of Rajasthan AIR 1976 SC 985: 1976 (1) SCC
15; Suresh Kumar Jain v. Shanti Swarup Jain and Ors. AIR
1997 SC 2291; Kirpal Singh v. State of Utter Pradesh AIR
1965 SC 712: 1964 SCR 992 - referred to. B
Case Law Reference:
2006 (1) SCR 519 . referred to Para 11
1976 (1) sec 15 referred to Para 11
c
AIR 1997 SC 2291 referred to Para 11
1964 SCR 992 referred to Para 11
1995 (4) suppl. sec 498 relied on Para 28
D
1993 (1) SCR 260 relied on Para 28
1994 (2) Suppl. SCR 740 relied on Para 28
2009 (f2) Scale 580 relied on Para 28
1992 (2) SCR 484 relied on Para 28 E
1985 (1) SCR 88 relied on Para 31
1997 (1) Suppl. SCR 96 relied on Para 32
2005 (2) S.uppl. SCR 79 relied on Para 32 F
2010 (2) SCR 22 relied on Para 32
2010 (1) SCR 1027 relied ·on Para 32
CRIMINAL APPELLATE JURISDICITION : Criminal
G
Appeal No. 1939 of 2008.
From the Judgment & Order dated 20.12.2006 of the High
Court of Clacutta in CRA No. 143 of 2002.
H
166 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Ranjan Mukherjee, Chanchal Kr. Ganguli, Avrojyoti
Chatterjee for the Appellant.
Pradeep Ghosh, Abhijit Sengupta, B.P. Yadav, Soumitra
G. Choudhari for the Respondent.
B The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. This appeal by special leave arises
out of an order passed by the High Court of Judicature at
Calcutta whereby the conviction of the appellant for offences
c punishable under Sections 302, 364 and 201 of the IPC and
the sentence of life imprisonment awarded to him have been
affirmed. Briefly stated the prosecution case is as under:
2. Asit Kumar Mondal, Sub-Inspector of Police was at the
relevant point of time attached to Jhargram Court. His family
0 comprised his wife and a son named Snehasish Mondal @
Babusona aged about 10/12 years residing at 'B' Block of
Thana Quarters' Complex at Ghoradhara, Jhargram. In the
same complex, lived the appellant whose father was also
working as a Sub-Inspector of Police and was at the relevant
E time posted at Beliabera Police Station. According to the
prosecution, the deceased Snehasish Mondal was friendly with .
the younger brother of the appellant and would usually play
cricket with him in a park situate behind the residential quarters
and by the side of the BOO office. A few days before the
F incident in question, the deceased is alleged.to have come to
the house of the appellant to collect a cricket bat and ball for
play in the park mentioned above and seen the appellant in a
compromising position with Mangala Deloi, PW10 aged about
20 years who was then working as a maid-servant in the house
G bf the appellant. The prosecution case is that the appellant
apprehended loss of face in the locality on account of a
possible disclosure of his involvement with his maid-servant
which according to the prosecution was the motive for silencing
the innocent boy for all times by Killing him in cold blood.
H
AMITAVA BANERJEE @AMIT@ BAPPA BANERJEE 167
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
3. On 12th of July, 1998, the deceased as usual went to A
play in the park but did not return home by the evening. The
parents of the deceased panicked and s~arted a search for the
deceased which went fruitless. Asit Mondal, PW1 then lodged
a missing report at the Jhargram Police Station who announced
the disappearance of the boy in the locality on the public B
address system. According to Asit Mondal, in the course of the
search for the missing boy he came to know that he was seen
talking to the appellant and then going with him towards
Kanchan Oil Mill on the latter's bicycle. When the appellant
returned to his quarter at 9.00 p.m. without his bicycle he was c
questioned about the whereabouts of the deceased and the
fact that he was seen taking the boy towards the Kanchan Oil
Mill but the appellant denied the same. About the bicycle the
appellant stated that he had handed the same over tb on.e of
his friends. ~
D
4, On July 13, 1998, Jhargram Police Station received
information about a freshly dug ditch filled up with a heap of
loose earth in Sitaldihi jungle, close .to Kanchan Oil Mill. The
· police on receipt of this information rushed to the spot and
found that a freshly dug ditch had indeed been filled up with E
loose earth and that a black coloured Hero bicycle was parked
against one of the trees at some distance. The Executive
Magistrate of the area was summoned to the spot by the police
and. the earth heaped over the ditch got removed only to
discover the dead body of the deceased Snehasish Mondal F
with his hands tied at the back and a handkerchief stuffed into
its mouth. Recovery of the dead body of the deceased and
conduct of an inquest by the Executive Magistrate led to the
registration of FIR No._91 of 1998 for the commission of an
offence under Sections 364, 302 and 201 of the IPC on the G
basis of a written complaint made to the above effect by Asit
Kumar Mondal father of the deceased Babusona. ·
5. The police seized the bicycle from Sitaldihi jungle
besides a cap which the appellant was allegedly wearing on
.H
168 SUPREME COURT REPORTS [2011] 12 S.C.R.
A the date of the incident. Post-mortem examination conducted
by Dr. Rajat Kanti Satpati, PW 15 proved that the deceased
had died as a result of asphyxia because of throattling/
strangulation which was ante-mortem and homicidal in nature.
In the course of investigation the police also seized a spade
B which the appellant had allegedly borrowed from Jadunath Das,
PW 6 and which the appellant had on the fateful day left with
Rukshmini Yadav, PW 11. Statements of witnesses who had
last seen the deceased, in the company of the appellant, in the
park and later going towards the Kanchan Oil Mill and inside
c the Sitaldihi jungle were also recorded. Suffice it to say that on
the completion of the investigation a charge-sheet was filed
against the appellant before the Court of SDJM Jhargram who
committed the case to the Court of Sessions at Midnapore. The
Sessions Judge in turn transferred the same to the 5th
D Additional Sessions Judge Midnapore, for trial and disposal.
6. At the trial the prosecution examined as many as 22
witnesses in support of its case including Asit Mondal, PW1
and his wife Smt. Chhanda Mondal, PW 14, who supported the
prosecution case. Gurupada Mondal, PW 2, who reported the
E presence of the bicycle and the ditch in Sitaldihi jungle to the
police, Sunil Deloi, PW 5 who had seen the appellant coming
out of the Sitaldihi jungle on 13th July, 1998 at 5.30-6.00 a.m.,
Jadunath Das, PW 6 who deposed about the borrowing of the
spade by the appellant on 12th July, 1998 in the morning, Rajib
F Roy Chowdhary, PW 7, and Jiten Sen, PW 8 both of whom saw
Babusona talking to the appellant in the park and then going
towards Sitaldihi jungle on the latter's bicycle. Tarapada
Mahato, PW 9 who saw the appellant and the deceased inside
the Sitaldihi jungle on 12th July, 1998 in the evening, Rukshmini
G Yadav, PW 11 who testified to the appellant leaving a spade
at her house on 12th July, 1998 in the evening, Tarun Banerjee,
PW13 who saw the bicycle in the Sitaldihi jungle and identified
it as that of the appellant. Dr. Rajat Kanti Satpati, PW 15 who
conducted the post-mortem examination, Dipak Kumar Sarkar,
H PW-16, Executive Magistrate, who conducted the inquest,
AMITAVA BANERJEE @AMIT@ BAPPA BANERJEE 16!:.l
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
Tapan Kumar Chatterjee, PW17 who made an entry in the A
General Diary under S.No.463 regarding the presence of a
cycle and the ditch in the jungle and Swapan Kumar Mohanti,
PW20, Judfoial Magistrate, who conducted the test
identification parade were also examined by the prosecution
apart from the lnvestigatin~ Officer Shri Kushal Mitra, PW22. B
7. On a thorough and careful appreciation of the evidence
adduced before it the Trial Court concluded that the prosecution
had failed to establish the motive for the murder of the
deceased as alleged by it, The Court held that Mangala Deloi,
PW10 who was the star witness of the prosecution to prove the C
alleged motive had not supported the prosecution case in the
Court. The witness had no doubt been examined even under
Section 164 of Cr.P.C. where she had supported the theory
underlying the alleged motive bu1 that version had been
disowned by her at the trial. Since, however, the statement of · D
the witness under Section 164 Cr.P.C. did not constitute
substantive evidence the same could not be relied upon for
convicting the appellant even when the witness had admitted
that she had made a statement before the· Magistrate. The
Court all the same held that the circumstantial evidence E
available on record was so strong and so unerringly pointed
towards the guilt of the appellant that the absence of a motive
did not make much of a difference. In paras 68 and 69 of the
judgment the Trial Court summarised the incriminating
circumstances that were in ·its opinion firmly established and F
that formed a complete chain proving the guilt of the appellant.
The Court observed:
"68. In the present case, accused Amitava was seen on
12.7.98 at about 5.30 pm at Ghoradhara park, Jhargram G
to take deceased Babusona therefrom by his cycle
towards Kanchan Oil Mill. He was again seen at Sitaldihi
jungle with Babusona and the cycle. On the same date he
took the spade from the house of Jadunath. At that time
he covered the handle of the spade with a piece of H
170 SUPREME COURT REPORTS [2011] 12 S.C.R.
A newspaper and tied the spade with the cycle with the help
of Sutli. He kept the spade at the garden of Rukmini
Yadab, PW11 at about 7/7.30 pm on the same day. He
was seen in that night without his cycle. On the following
day i.e. On 13.7.98 at the very morning he was seen
B coming out from Sitaldihi jungle without his cycle in a
suspicious and frightening manner as discussed earlier.
At the material point of time when the accused went to
Sitaldihi jungle on 12.7.98 with deceased Babusona, the
accused was wearing a chocolate coloured full pant white
c half genji and one reddish cap and deceased Babusona
was wearing yellow-orange coloured shirt, blue half pant
and slipper. At the time when the accused was found
coming out of Sitaldihi jungle in the morning of 13.7.98, he
was seen wearing a chocolate coloured full pant and white
genji, but without the cap. The accused is identified by
D
several witnesses. His pant and genji were also seized by
the police from his house, which are also identified by the
witnesses, who saw him on 12.7.98.,at the afternoon and
also in the morning of 13.7.98. On-13.7.98 as per
information of the witnesses police had been to Sitaldihi
E jungle and there discovered the place where the dead
body of Babusona was kept under the earth. The S.D.P.O,
S.D.O and the Id. Executive Magistrate were called along
with a photographer. In their presence the dead body was
recovered from the ditch after unearthing the same. The
F cycle of Amitava. two pieces of newspaper and hawai
chappal of Babusona were recovered nearby the said
ditch. Those are produced in court and identified the
witnesses. The dead body was identified by PW1, father
of deceased Babusona, as that of his son-Babusona. He
G lodged the FIR at that spot. Inquest was held over the dead
body of Babusona in presence of the witnesses - both by
the police and also by the Executive Magistrate. The hands
and legs of deceased Babusona were found to be tied with
electric wire and his mouth was gagged with handkerchief.
H Those articles were seized and produced in court and duly
AMITAVA BANERJEE @AMIT@ BAPPA BANERJEE 171
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
identified by the seizure witnesses. Thereafter the dead A ·
body of Babusona was sent to Jhargram S.D. Hospital
where post mortem examination was held by the medical
Board, including the medical officer, PW15. The post
mortem examination was held at 6.45 pm on 13.7.98 and
the doctors' opinion is that the death of Babusona took B
place about 24 hours back due to throttling/strangulation,
which was homicidal in nature. After recording the
statements of several witnesses, 1.0. (PW22) arrested the
accused and as shown by the accused the spade was
recovered from the premises of Rukminf Yadab (PW11 ). c
That spade is produced in court and identified both
Jadunath, PW 6, and Rukmini, PW 11, and that spade is
produced in court and identified by both Jadunath and
Rukmini. Subsequently, on 15.7.98 as per the statement
of the accused his reddish cap and sandle were recovered 0
from the bush within Sitaldihi jungle in presence of the
witnesses. Those articles are produced in court and
identified by the seizure witnesses. The statement of the
accused leading tel'" such discovery is also brought. into
evidence. The statements of witnesses, Rajib, Jiten, E
Mongala, Rukmini and Jadunath were recorded by the Ld.
J.M. Jhargram u/section 164 Cr.P.C. Excepting Mongala,
all other witnesses have given substantive evidence in
court in support of their earlier statement u/section 164
Cr.P.C.
F
69. Thus, on the basis of the aforesaid evidence, as
discussed earlier, the chain of circumstantial evidence is
built up and it is complete one. The standard of proof
required to hold the accused guilty on circumstantial
evidence is quite sufficient to establish the chain of G
circumstances. In my considered view, it is so complete
leaving no reasonable ground for conclusion consistent
with the innocence of the accused. The circumstances
brought before the court is quite sufficient to conclude by
holding the guilt ofthe accused. In the present case, there H
172 SUPREME COURT REPORTS [2011) 12 S.C.R.
A is no escape from the conclusion that within all human
probability the crime was committed by the accused and
none else."
8. On the above findings the Trial Court found the appellant
8 guilty of offences punishable under Section 302 of the IPC and
sentenced him to imprisonment for life and a fine of Rs.2,000/
- in default whereof the appellant was directed to undergo a
further imprisonment for two months. No separate sentence
was, however, awarded to the appellant for the offences
C punishable under Sections 364 and 201 of the IPC though the
said offence held proved.
9. Aggrieved by his conviction and sentence the appellant
preferred an appeal before the High Court of Judicature at
Calcutta. The High Court has by the judgment and order
D impugned in this appeal affirmed the conviction and sentence
awarded to the appellant and dismissec the appeal. The High
Court has while doing so re-appraised the evidence on record
held that the circumst~nces proved at the trial were explainable
on no other hypothesis except the guilt of the appellant. The
E High Court observed:
"If we assemble the above stated facts, evidence and
circumstances and consider the same in proper
perspective the circumstances and the evidence clearly
lead to us to the only possible hypothesis that the appellant
F
was the only person who was responsible for the murder
of Babusona. There was no evidence before the Court to
prove that deceased was found in the company of any
other person on 12.7.98 before his murder. The evidence
and circumstances clinchingly establishes that the
G
appellant took away Babusona from Ghoradhara park on
his cycle and Babusona was last seen by PW9 in the
company of appellant in the Sitaldihi jungle and thereafter
he did not return and his dead body was recovered on
13.7.98. Besides the appellant, no other person had the
H
AMITAVA BANERJEE @ AMIT @ BAPPA BANERJEE 173
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
custody of the deceased before his murder and the entire A
circumstances establishes and proves that the appellant
was the murderer."
10. The present appeal by special· 1eave assails the
correctness of the view taken by the courts below. We have B
heard at considerable length Shri Ranjan Mukherjee learned
counsel for the appellant and Shri Pradeep Ghosh, learned
senior counsel for the respondent both of whom were at pains
to take us through the evidence adduced at the trial.
11. We may at the threshold say that this Court does not C
ordinarily embark upon a re-appraisal of the evidence where
the courts below have concurrently taken a view on facts one
way or the other. In a long line of decisions this Court has held
that an appeal by special leave is not a regular appeal and that
this Court would not re-appreciate evidence except to find out D
whether there has been any illegality, material irregularity or
miscarriage of justice merely because a different view is
possible on the evidence adduced at the trial is no ground for
·the Court to upset the opinion of the Courts below, so long as
the same is a reasonably possible view. Perversity in the E
findings, illegality or irregularity in the Trial, causing injustice,
or failure to take into consideration an important piece of
evidence have been identified as some of the situation in which
this Court would re-appraise the evidence adduced at the trial
and not otherwise. (See: Radha Mohan Singh alias Lal Saheb F
and Ors. v. State of U.P..(AIR 2006 SC 951 ), Bhagwan Singh
v. State of Rajasthan (AIR 1976 SC 985), Suresh Kumar Jain
v. Shanti Swarup Jain and Ors. (AIR 1997 SC 2291) and
Kirpal Singh v. State of Utter Pradesh (AIR 1965 SC 712).
12. It is our task now to examine whether the judgment G
under appeal suffers from any one or more of the above
infirmities, having regard to the quality of the evidence adduced
at the trial.
13. We may with that object in view refer to the essence H
174 SUPREME COURT REPORTS [2011) 12 S.C.R.
A -of the depositions of the witnesses examined at the trial. In his
deposition Asit Kumar Mondal, PW1, stated that he was
residing with his wife and only son Snehasish Mondal in 'B'
Block of the Thana Quarters Complex at Ghoradhara,
Jhargram. Amit Banerjee resided with his wife and their three
B sons in 'A' Block opposite to Block 'B' in which the witness
resided. On 12th of July, 1998, the deceased had gone to play
in Ghoradhara park situate in front of BOO office but did not
return home till evening. He was, therefore, asked by his wife,
PW14 to search for their son. In the course of the search he
c came to know from one Rajib Roy Chowdhury, PW7 also a
resident of the same Thana Quarters Complex that he had seen
Babusona sitting in the park at about 5.00-5.30 p.m. and later
seen him going with the appellant on his bicycle toward Kanchan
Oil Mill following the western road touching the said park. The
D witness also deposed about the missing report lodged by him
in Jhargram Police Station marked Ex.13 comprising G.D.
Entry No.438 dated 12th July, 1998. The G.D. Entry gave the
description of the missing boy and the clothes that he was
wearing at the time of his disappearance.
E 14. Chhanda Mondal, PW 14, who happened to be the
mother of the deceased, has in her deposition stated that at
about 2 p.m. on 12th July, 1998 Babusona, the deceased
expressed his desire to go out for bringing two parrots
promised to him by the appellant. At the instance of the mother,
F the deceased instead went for his drawing classes fro.m where
he returned at about 4.45 p.m. Soon thereafter and.following a
signal from the appellant he went up to the roof of the flat
occupied by the appellant where the later was standing.
Sometime later the appellant and Babusona were both s~en
G by the witness going towards the nearby park. The appellant
was wearing a cap on his head, one white ganjee and a
chocolate coloured full pant.
15. Rajib Roy Choudhury, PW 7, deposed that he had seen
H Babusona sitting on a Bench at about 5.00-5.30 p.m. on 12th
AMITAVA BANERJEE @ AMIT @ SAPPA BANERJEE 175 .
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
July, 1998 when the appellant came there, called out to A
Babusona and took him away on his bicycle by making him sit
on the front rod of the cycle. The witness admitfed.that he was
. examined under Section 164 ofthe Cr.P.C. which statement
was exhibited as Ext. 7/1. Also relevant at this stage is the
deposition of Jitin Sen, PW 8, who testified that he had seen B
Babusona-at the Ghoradhara Park when the appellant came
there called the deceased and took him away on his bicycle.
The deceased and also the appellant were, according to the
witness, well known to him as both of them were sports lovers.
16. Tarapade Mahato, PW9, who was an employee of the C
Kanchan Oil Mill and a resident of village Kalinagar, in his
deposition stated that on 12th July, 1998 at about 6.00-6.30
p.m. he was returning from his duty from Kanchan Oil Mill
following the usual path he noticed a bicycle standing with the
support of a tree inside the Sitaldihi jungle. He also-noticed two D
boys one about 10-11 years and another 18-19 years standing
at a distance of about 10/12 cubits from the said bicycle. The
witness further stated that the boys on noticing him proceeded
further inside the jungle holding each other's hands. On the
following day i.e. 13th July, 1998, he came to know about the E
recovery of a dead body from a ditch inside Sitaldihi jungle. He
at once rushed to the place and saw the dead body of a boy
aged 10/12 years lying in the ditch. He recollected that it was
the same boy whom he had seen on the previous day. Witness
further deposed that he identified the 18-19 years boy as the F
one whom he had seen on 12th July, 1998 in the Sitaldihi jungle
in the test identification parade.
17. The prosecution has also placed reliance upon the
deposition of Jadunath Das, PW 6, who also happened to be G
one of the residents of the police complex and knew the
appellant and the deceased. According to this witness on 12th
July, 1998 which happened to be a Sunday, the appellant called
him at about 10.30 in the morning and asked for the spade
which the witness owned as the former wanted to plant flowers. H
176 SUPREME COURT REPORTS [2011] 12 S.C.R.
A The witness further stated that the appellant took the spade and
wrapped its wooden part with a piece of newspaper and 'Sutli'
(jute string) and carried the spade with him tied to his bicycle.
The spade was not, however, returned by the appellant to him.
The witness identified the spade seized by the police and
B marked Ex.11 to be the one which the appellant had borrowed
from him on the date mentioned above.
18. Statement of Rukshmini Yadav, PW11 also bears
relevance to the spade referred to by Jadunath Das, PW6.
C According to this witness, her children also take part in different
sports. The appellant was according to this witness well
acquainted to her and others in the locality. The witness stated
that on 12th July at about 7.00-7.30 p.m. the appellant came
to her house and called for her and kept one spade in the
garden stating that he would take the same back on the
D following morning. The witness further stated that on 13th July,
1998 at about 9.00-9.30 p.m. the appellant accompanied by
the police came to her house and the spade that was left by
him was seized at his instance. A seizure memo Ex.1Qwas
also prepared on which the witness had affixed her signature.
E
19. Aswini Deloi, PW 12 was examined by the prosecution
to prove that he had reported the presence of a graveyard and
a bicycle in the Sitaldihi jungle, and seen the appellant coming
out of the Sitaldihi jungle on the 13th July, 1998 early in the
F morning i'.t the trial this witness has partly supported the
prosecution. He has stated that about 2Y2 years ago he had
noticed one bicycle and some newspapers lying near graveyard
but denied having reported the matter to the local police along
with Gurupada Mondal, PW 2. He also denied having seen the
G appellant coming out of the Sitaldihi jungle in the morning of
13th July, 1998. The witness was declared hostile and was
~ross-examined. He was confronted with the statement made
before the police which was denied. The refusal of the witness
to support the prosecution case has not made any material
H difference having regard to the fact that Gurupada Mondal,
PW2 has supported the prosecution and stated in his
AMITAVA BANERJEE @ AMIT @ SAPPA BANERJEE 177
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
deposition that a black colour bicycle and the ditch which A
looked like a fresh graveyard and a pair of chappal lying nearby
besides a newspaper was noticed by him inside the jungle and
reported by him and Aswini Deloi, PW 12 to the police.
20. Tarun Banerjee, PW13 was occupying the ground floor 8
flat in the 'B' Block of the complex and was familiar with the
appellant as also the deceased-Babusona. According to his
deposition on 12th July, 1998 when he returned home he learnt
from his wife that Babusona was missing. He rushed to the
house of Babusona's father and asked him whether a report
regarding missing had been lodged with the police. Till mid- C
night Babusona could not be traced despite efforts made by
police and a public announcement made on a loudspeaker. On
the following day he noticed a gathering of people including
police personnel on the Sitaldihi jungle. Asit Kumar Mondal,
PW1 was also present on the spot and was weeping. A bicycle 0
standing nearby was also seen by the witness which belonged
to the appellant. He recognised the bicycle, as he too made
use of it occasionally. He is C)Jso a witness to the seizure of the
clothes which the appellant was wearing on the fateful day.
Although the witness has been cross-examined extensively yet E
nothing has been extracted from him that could shake his
· credibility. In his cross-examination the witness has stated that
the appellant had on 12th July, 1998 at about 9.00/10.00 p.m.
told him that his bicycle had been taken by one of his friends
but he failed to disclose the name of his friend and said that F
the friend was simply known to him by name.
21. Dr. Rajat Kanti Satpati, PW15 conducted the post-
mortem on the dead body of the deceased and found the
following injuries: G
"External Injuries:
(1) Homatoma 1" x 1" over the occipital region of the
scalp and Yz" x Yz" on the front and back of right
pinna. H
178 SUPREME COURT REPORTS [2011] 12 S.C.R.
A (2) · Scratc~ mark surrounding both the wrist joint.
(3) Abrasion on buccal surface on upper lip.
(4) Continuous horizontal ligature mark around the
lower part of neck.
B
(5) Old hemorrhagic mark both upper and lower jaw.
(6) Eccymosis 1O" x 6" upper part of back of chest and
eccymosis 8" x 6" lower part of back and also
eccymosis both of the axilla and noted. On section
c of the neck below ligature no perchmentization in
the subcantanus tissues. Haemorrhage is noted.
On further dissection caretidartery intinct both sides
intact. Mussels platysma mark and lacerated left laterally
D and haemorrhage in· and around injuries. Fracture of the
hyoid bone on the left side and haemorrhage around
fracture hyoid which is resist to washing. Stomach healthy
contains full particles.
E In our opinion of death is asphyxia as a result of
throattling/strangulation which is antemortem and homicidal
in nature."
22. The witness further stated that injury no.4 could be
caused due to tying of the neck with a substance like 'Sutli'.
F According to the witness the death of the deceased had
occurred approximately 24 hrs. prior to the post-mortem
examination which was conducted at 6.45 p.m. on 13th July,
1998. ·,
G 23. Deepak Kumar Sarkar, PW16 is a witness to the
recovery of the dead body of deceased Babusona from the
ditch in the jungle and the inquest that followed.
· 24. Tapan Kumar Chatterjee, PW17 and Swapan Kumar
H Pal, PW18 are police witnesses. While the former has proved
..
AMITAVA BANERJEE @ AMIT @ SAPPA BANERJEE 179
v. STATE OF WEST BENGAL [T.S. THAKUR, J.)
the GD No.438 dated 12th July, 1998 lodged by Asit Kumar A
Mondal regarding the missing report of his son Babusona, the
latter is a witness to the seizure of the bicycle and the recovery
of the dead-body from the ditch inside the Sitaldihi jungle. Dilip
Bhattacharyya, PW 19, has scribed the first information report
which he wrote under the instruction of the first informant, Asit s
Kumar Monda! and which has been marked Ext.1. In cross-
examination the witness stated that as soon as the dead-body
was identified by the father of the deceased the officer-in-
charge instructed him to write down the FIR and he accordingly
wrote the FIR as per the narrative given by Asit Kumar Mondal, c
PW1.
25. Swapan Kumar MahC:lnti; PW20, Judicial' Magistrate,
recorded the statement of Rajib Roy Chowdhury, PW 7 and
Jiten Sen, PW8 under Section 164 of the Cr.P.C. He also
recorded the statement of Jadunath Das, PW6 and Rukshmini D
Yadav which was marked as Ext.11. Statement of Tarapada
Mahato PW9 is also recorded by the witness. The Magistrate
also testified the holding of a test identification parade on 6th
August, 1998 as per the orders of the Ld. Sub-Divisional
Judicial Magistrate, Jhargram. In his cross-examination the E
witness stated that he has administered oath to the witnesses
for the statement recorded by him but the same is not recorded
in the order-sheet or the statement. There was no serious
challenge to the test identification parade in the cross-
examination except that undertrial prisoners are produced by F
the Sub-Jailor and were mixed with the suspect. The particulars
of the cases in which the undertrial prisoners were in custody
were not, however, recorded in the proceedings. Tapas Giri,
PW21 took the photographs on the spot as per the instructions
of police while Kushal Mitra, PW22 is the Investigating Officer G
who in his deposition has proved the various steps that were
taken in the course of investigation including the seizures made,
the statement of the witnesses recorded, the conduct of the
·· inquest, the post-mortem and the test identification parade. The
appellant led no evidence in his defence. H
180 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 26. Mr. Mukherjee at the very outset argued that in a case
based on circumstantial evidence proof of motive of the
commission of offence of murder is extremely important. He
submitted that prosecution had in the present case failed to
prove the motive alleged by it which would break the chain of
B circumstances and resultantly benefit the appellant. He urged
that even when Mang ala Deloi, PW10 had supported the
prosecution version regarding the alleged motive in her
statements under Sections 161 and 164 of the Cr.P.C., the
same did not constitute substantive evidence in the case and
c could not, therefore, be made use of for holding the motive to
have been proved.
27. Motive for the commission of an offence no doubt
assumes greater importance in cases resting on circumstantial
evidence than those in which direct evidence regarding
D commission of the offence is available. And yet failure to prove
motive in cases resting on circumstantial evidence is not fatal
by itself. All that the absence of motive for the commission of
the offence results in is that the ~ourt shall have to be more
careful and circumspect in scrutinizing the evidence to ensure
E that suspicion does not take the place of proof while finding the
accused guilty. Absence of motive in a case depending entirely
on circumstantial evidence is a factor that shall no doubt weigh
in favour of the accused, but what the Courts need to remember
is that motive is a matter which is primarily known to the
F accused and which the prosecution may at times find difficult
to explain or establish by substantive evidence. Human nature
being what it is, it is often difficult to fathom the real motivation
behind the commission of a crime. And yet experience about
human nature, human conduct and the frailties of human mind
G has shown that inducements to crime have veered around to
what Wills has in his book "Circumstantial Evidence" said:
'The common inducements to crime are the desires of
revenging some real or fancied wrong; of getting rid of rival
or an obnoxious connection; of escaping from the pressure
H
AMITAVA BANERJEE @AMIT@ SAPPA BANERJEE 181
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
of pecuniary or other obligation or burden of obtaining A
plunder or other coveted object; or preserving reputation,
either that of general character or the conventional
reputation or profession or sex; or gratifying some other
selfish or malignant passion."
8
28. The legal position as to the significance of motive and
effect of its absence in a given case is fairly well-settled by the
decisions of this Court to which we need not refer in detail to
avoid burdening this judgment unnecessarily. See Dhananjoy
Chatterjee alias Dhana v: State of WB. 1994 (2) SCC 220, C
Surinder Pal Jain v. Delhi Administration, 1993 Suppl. (3)
SCC 91, Tarseem Kumar v. Delhi Administration, 1994 Suppl.
(3) SCC 367, Jagdish v. State of MP., 2009 (12) Scale 580,
Mulakh Raj and Ors. v. Satish Kumar and Ors. 1992 (3) SCC
43.
D
29. It was next argued by Mr. Mukherjee that the evidence
adduced at the trial does not form a complete chain and that
apart from the improbability of the prosecution version there
were certain gaping holes in the prosecution story which would
render it unsafe for any Court to pronounce the appellant guilty. E
He urged that in a case resting entirely on circumstantial
evidence it was necessary for the prosecution to establish the
circumstances that may be said to be incriminating against the
accused but the said circumstances ought to be consistent only
with the guilt of the accused in order that the Court may declare F
him guilty. Both these requirements had, according to Mr.
Mukherjee, failed in the instant case entitling the appellant to
an acquittal.
30. Mr. Ghosh, O(l the other hand, argued that the
circumstances relied upon by the prosecution had not only been G
firmly established but the same form a complete chain that
leaves no room for any conclusion other than the guilt of the
appellant. He referred to the findings recorded by the two Courts
below in this regard and submitted that the appellant had not
H
182 SUPREME COURT REPORTS [2011] 12 S.C.R.
A been able to either question the evidence that proved the
circumstances or the inference that inevitably flowed from the
same.
31. The tests applicable to cases based on circumstantial
evidence are fairly well-known. The decisions of this Court
8
recognising and applying those tests to varied fact situation are
a legion. Reference to only some of the said decisions should,
however, suffice. In Sharad Birdhichand Sarda v. State of
Maharashtra, 1984 (4) SCC 116 this Court declared that a
C case based on circumstantial evidence must satisfy, the
following tests:
"(1) The circumstances from which the conclusion of guilt
is to be drawn should be fully established.
D (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
E and tendency.
(4) They should exclude every possible hypothesis except
the one to be proved, and
(5) There must be a chain of evidence so complete as not
F
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."
G 32. To the same effect are the decisions of this Court in
Tanviben Pankaj Kumar Divetia v. State of Gujarat 1997(7)
SCC 156, State (NCT of Delhi) v. Navjot Sandhu @ Afsan
Guru 2005 (11) SCC 600, Vikram Singh & Ors. v. State of
Punjab, 2010 (3) SCC 56, Aftab Ahmad Ansari v. State of
H
AMITAVA BANERJEE @ AMIT @ SAPPA BANERJEE 183
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
Uttarancha/, 2010 (2) SCC 583. In Aftab Ahmad Ansari (supra) A
this Court observed:
"In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established.
8
Each fact must be proved individually and only thereafter
the court should consider the total cumulative effect of all
the proved facts, each one of which reinforces the
conclusion of the guilt. If the combined effect of all the facts
taken together is conclusive in~stablishing the guilt of the C
accused, the conviction would be justified even though it
may be that one or more of these facts, by itself/
themselves, is/are not decisive. The circumstances proved
should be such as to exclude every hypothesis except the
one sought to be proved. But this does not mean that
before the prosecution case succeeds in a case of D
circumstantial evidence alone. it must exclude each and
every hypothesis suggested by the accused, howsoever
· o extravagant and fanciful it might be."
33. What, therefore, needs to be seen is whether the E
prosecution has established the incriminating circumstances
upon which it places reliance and whether those circumstances
constitute a chain so complete as not to leave any reasonable
ground for the appellant to be found innocent. Both the Courts
below have, as seen earlier, appreciated the evidence adduced F
in the case and enumerated the circumstances that have been
according to them established by the prosecution. Having been
taken through the evidence adduced at the trial to which we
have referred in some detail in the earlier part of this judgment,
we have no manner of doubt that the prosecution has G
satisfactorily and firmly established the following circumstances
on the basis of the evidence adduced by it:
(1) That at about 2 p.m. on 12th July, 1998 Babusona, the
deceased expressed his desire to go out for bringing two
parrots promised to him by the appellant. At the instance H
184 SUPREME COURT REPORTS [2011] 12 S.C.R.
A of his mother, Chhanda Mondal, PW14, the deceased was
instead sent for his drawing classes from where he
returned at about 4.45 p.m. Soon thereafter and following
a signal from the appellant he went up to the roof of the
flat occupied by the appellant where the latter was
B standing. Sometime later the appellant and .Babusona
were both seen by Chhanda Mondal, PW14 going towards
the nearby park. The witness again noticed the appellant
proceeding on his bicycle wearing a cap on his head, one
white ganjee and a chocolate coloured full pant.
c (2) The deceased Babusona did not return home from the
park till evening, whereupon the parents of the deceased
started a search for him. Deposition of Asit Kumar Mondal,
PW1 father and Smt. Chhanda Monda!, PW 14, mother of
the deceased respectively clearly establish this fact.
D
(3) When the search undertaken by the parents proved
fruitless, Asit Kumar Mondal lodged a missing report at the
Jhargram Police Station, which report was registered
under General Diary No. 438 dated 12th July, 1998 at 6.55
E p.m. marked as Ext. 13 at the trial. The Jhargram Police
Station on receipt of the report made an announcement
regarding the disappearance of Babusona with the help
of loudspeaker in the area. The deposition of Asit Kumar
Mondal, PW1 and Chhanda Monda!, PW14 clearly
F establish this circumstance also.
(4) At about 8.30 p.m. on 12th July, 1998 the parents of
the deceased Asit Kumar Monda!, PW 1 and Chhanda
Mondal, PW14 saw the appellant entering his (appellant's)
residential quarter from the rear door of the quarter. When
G PW 1 asked him about the whereabouts of the deceased
the appellant initially hesitated and showed his ignorance
regarding the whereabouts of Babusona. The deposition
of Asit Kumar Mondal, PW 1 establishes that at that time
the appellant was without any chappal on his feet and the
H cycle that he owned.
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v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
(5) The deceased-Babusona was last seen by Rajib Roy A
Chowdhury, PW 7 and Jiten Sen, PW8 in the park talking
to fhe appellant and shortly thereafter going with the
appellant on his bicycle towards the Kanchan Oil Mill which
is in the same directi.on as of Sitaldihi jungle. The
deposition of the said two witnesses has firmly established B
this fact especially because nothing has been brought out
in their cross-examination which may discredit their
version or render them unreliable.
(6) The deceased and the appellant were seen in the
Sitaldihi jungle by Tarapada Mahato, PW9 while the said C
witness was returning home from Kanchan Oil Mill. On
seeing the witness the appellant and the deceased
proceeded deeper into the Sitaldihi jungle.
(7) On the following day i.e. 13th july, 1998 Jhargram D
Police Station received information about a newly dug ditch
inside the Sitaldihi jungle at some distance from the
residential comp]ex where the appellant and the deceased .
used to live. This information was recorded in Diary No.463
dated 13th July, 1998 marked as Ext.17. The depositions E
of Gurupada Mondal, PW2 established this fact. On receipt
of this information the police rushed to the place inside the
Sitaldihi jungle and found a newly dug ditch covered with
loose earth. Executive Magistrate, Shri Dipak Kumar
Sarkar, PW 16 was also sent for besides a photographer F
named Tapas Giri, PW 21. In their presence and the
presence of other witnesses the ditch was dug up and the
body of the deceased recovered from the same. The
deposition of Asit Kumar Mondal, PW 1, Gurupada
Monda!, PW2, Kushal Mitra, PW 22, Sunil Deloi, PW5, G
Tarun Banerjee, PW13, Dipak Kumar Sarkar, PW16,
Swapan Kumar Pal, PW18 and Dilip Bhattacharyya,
PW19 firmly establish this fact.
(8) At some distance from the place where the dead body
was buried, the police found a pair of hawai chappal, two H
186 SUPREME COURT REPORTS (2011] 12 S.C.R.
A leaves of Ananda Bazar Patrika Newspaper apart from the
cycle that was parked against a tree. Asit Kumar Mondal
recognized the hawai chappal to be that of his son-
Babusona and the cycle to be that of the appellant. The
cycle was also recognised by Tarun Banrejee. PW13 to
B be that of the appellant.
(9) Dead body of the Babusona was lying on his back with
hands tied behind. The legs were also tied with the help
of electric wire. One handkerchief was also stuffed inside
the mouth of the deceased and 'Sutli' uute string) was
c found around the neck of the deceased. The depositions
of Asit Kumar Mondal, PW1, Gurupada Mondal, PW2,
Dilip Namata, PW3, Sunil Deloi, PW5, and Kushal Mitra,
PW22 establish this fact apart from establishing that there
were marks of injuries on different parts of the body
D including the head.
(10) The deceased was found wearing blue coloured half
pant and yellow orange mixed half shirt. These were the
very same clothes the deceased was wearing when he
E was last seen alive. Depositions of Asit Kumar Mondal,
PW1, Chhanda Mondal, PW14, Jiten Sen, PW8,
Tarapada Mahato, PW9 and Kushal Mitra, PW22 establish
this fact.
(11) The appellant was identified by the said Tarapada
F Mahato, PW9 in T.I. Parade conducted on 6th August,
1998, by Swapan Kumar Mahanti, Judicial Magistrate,
examined at the trial as PW20, as the same boy whom
he had seen inside the Sitaldihi jungle along with the
deceased at about 6.00/6.30 p.m. on 12th July, 1998.
G
(12) From the Sitaldihi jungle a cap which the appellant
was wearing on the fateful day was also recovered in the
presence of Gurupada Monda!, PW2 and Dilip Namata,
PW3.
H
AMl}AVA BANERJEE @ AMIT @ SAPPA BANERJEE 187
v. STATE OF WEST BENGAL [T.S. THAKUR, J.]
(13) Apart from leaves of Anand Bazar Patrika, the 'Sutli' A
found tied around the neck of the deceased was also
seized by the police along with the electric wire marked
M.O. Ext.XIII. Depositions of Asit Kumar Mondal, PW1,
Dilip Namata, PW3, Sunil Delio PW5, and Kushal Mitra,
PW22 establish the fact. B
(14) A spade that was dropped by the appellant in the
· evening of the 12th July, 1998 at the house of Rukshmini
Yadav, PW11 telling the said witness that he would collect
it the following day was also seized by the police at the C
instance of the appellant.
(15) The spade had been taken by the appellant on the
morning of 12th July, 1998 from Jadunath Das, PW6, on
the pretext of planting some flowers. The witness also
proved that the appellant had wrapped the wooden part D
of the spade with newspaper and tied it with 'Sutli' Gute
string) and carried the same on his bicycle.
(16) The deposition of Dr. Rajat Kanti Satpati, PW15 who
conducted the post-mortem examination and opined that E
the deceased had died within 24 hrs. prior to the post- .
mortem which supports the prosecution version that the
deceased was done to death around 6.30 or so in the
evening on 12th July, 1998. The death was according to
this witness homicidal and asphyxia caused for throttling F
and strangulation which fact is also clearly established by
the prosecution. The doctor also found a ligature mark
around the neck of the deceased which could be caused
by the 'Sutli'.
(17) The clothes which the appellant was wearing G
according to the witnesses Sunil Deloi, PW5, Rajib Roy
Chowdhury, PW7, Jiten Sen, PW8 and Smt. Chhanda
Mondal, PW14 seized by Kushal Mitra, PW22 inthe
presence of Asit Kumar Mondal, PW1, and Tarun Bane~ee
H
188 SUPREME COURT REPORTS [2011] 12 S.C.R.
A PW13 during investigation were duly identified by them in
the Court.
34. The above circumstances are, in our opinion, not only
established, but they form a complete chain, that leaves no
manner of doubt, that the crime with which the appellant stood
8
charged was committed by him and no one else. The
deposition of the mother of the deceased, that Babusona
wanted to go to the appellant to fetch two parrots which the
latter had promised, that he did after returning from the drawing
C tuition go to the appellant on getting a signal from him, sets the
stage for drawing the deceased out of the house. He is shortly
thereafter seen talking to the appellant who calls out for him in
the park and carries him away on his bicycle towards Kanchan
Oil Mill which fact has been proved by two witnesses whose
deposition does not suffer from any embellishment or
D contradiction. The fact that Babusona and the appellant were
seen together in Sitaldihi jungle around 6.00/6.30 p.m. on 12th
July, 1998 is a highly incriminating circumstance, especially
when according to the medical evidence the time of death of
the deceased was also around the same time. The deceased
E having been last seen with the appellant around the time he was
killed is a circumstance which together with other circumstances
proved in the case, are explainable only on one hypothesis that
the appellant was guilty of killing the deceased. The fact that
the appellant had borrowed the spade, tide it with 'Sutil' after
F wrapping the wooden part with the newspaper is fully
established by the statement of Jadunath Das, PW6. So also
the deposit of the spade on 12th July, 1998 in the evening with
Rukshmini Yadav, PW11 stands established beyond any doubt
whatsoever. The presence of the newspaper near the ditch
G where the deceased was burried and the recovery of the 'Sutli'
from around the neck of the deceased where it had left a
ligature mark are also telling circumstances which are
explainable only on the hypothesis that the appellant was the
author of the crime. Recovery of the cap which according to the
H prosecution witnesses was worn by the appellant on the date
AMITAVA BANERJEE @ AMIT @ BAPPA BANERJEE 189
v. STATE OF WEST ~ENGAL [T.S. THAKUR, J.]
of occurrence from Sitaldihi jungle is also a circumstance that A
establishes that the appellant was in the jungle on 12th July,
1998 around the place from where the dead body was
recovered. Similarly, the recovery of the bicycle which the
appellant owned from Sitaldihi jungle, from near the place
where the dead body was burried is not explainable on any B
hypothesis except the guilt of the accused-appellant. The fact
that the appellant had late in the evening on 12th July, 1998
left the spade at the house of Rukshmini Yadav, PW11 and
entered the flat from the rear door without his chappals as also
the fact that when asked where his bicycle was, he gave a false c
explanation too are incriminating circumstances which are
important links in the chain of the circumstances.
35. Mr. Mukherjee's argument that Tarapada Mahato,
PW9 could not have seen the boys standing in Sitaldihi jungle
from inside Kanchan Oil Mill, has in our opinion, no merit D
whatsoever. The witness has clearly stated that he had seen
the boys (appellant and the deceased) while he was going
home by the path which he everyday takes for that purpose.
Nowhere has the witness suggested that he had seen the boys
from the precincts of the Mill. So also the argument that E
Tarapada Mahato, PW9 was a procured witness has not
impressed us. There is nothing in the cross-examination of this
witness that may warrant rejection of his testimony. The mere
fact that the witness did not volunteer to go to the police to say
that the two boys i.e. the appellant whom he described as a F
boy aged 18/19 years old and the deceased whom he
described as a boy 10/11 years old, were seen by him together
in the Sitaldihi jungle on 12th July, 1998, would not make the
deposition of this Witness suspect. The statement of this
witness was recorded when the police started questioning the G
employees of the Mill about the incident. Narration of what the
witness had seen in the course of the investigation cannot be
said to be so highly belated or afterthought as to cast a doubt
about the veracity of the witness especially when the witness
had not seen any crime being committed. He was simply a H
190 SUPREME COURT REPORTS [2011] 12 S.C.R.
A witness to a fact which could independent of other
circumstances be a wholly innocent and innocuous
circumstance. The criticism of the learned counsel against the
conduct of the test identification parade is also without any
merit. The fact that the suspect was kept in a room separate
B from the room in which the witness was made to sit before the
T.I. parade proceedings were held is much too clear from the
statement of the magistrate who conducted the T.I. parade to
call for any adverse inference. All told the investigation into the
unfortunate incident and the collection of the evidence has been
c fair and objective. One reason for such fairness and objectivity
could be the fact that the deceased and the appellant were both
wards of police officials. There was, therefore, no room for
favouring one over the other. In the totality of the above
circumstances, we see neither any illegality, nor any
0 miscarriage of justice in the judgments and orders under appeal
to call for our interference.
36. In the result this appeal fails and is hereby dismissed.
D.G. Appeal dismissed.
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