Holding

Abnormal and misleading conduct by the accused after the offence creates an adverse presumption and may be treated as relevant evidence, justifying the conviction of A‑1 but not of A‑2 where the circumstantial chain is insufficient.

Summary

The case concerned the murder of a boy who disappeared on 6 November 2001. Four accused were seen at the spot where the child was last seen and were alleged to have misled the search by directing witnesses away from the area and by making a threatening telephone call. The trial court convicted all four based on circumstantial evidence; the High Court modified the convictions but upheld them. On appeal, the Supreme Court examined whether the accused’s abnormal conduct after the offence—remaining at the scene all day, misleading the search, and issuing a threatening call—creates an adverse presumption that can be treated as relevant evidence. The Court held that such conduct destroys the presumption of innocence and may be considered material, thereby upholding the conviction of appellant A‑1 (Debasish Das @ Sona) but finding the circumstantial chain insufficient to fasten guilt on appellant A‑2 (Joydeep Neogi @ Bubai), whose conviction was set aside.

Issues considered

The adequacy of purely circumstantial evidence to sustain a conviction under Sections 302, 363, 364, 201 and 34 IPC.
Whether the accused’s abnormal or unusual conduct after the alleged offence creates an adverse presumption that is relevant and material under the Evidence Act.
The applicability of the presumption of innocence in the context of conduct that misleads investigation.
The propriety of upholding the conviction of A‑1 while acquitting A‑2.

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 201, s. 302, s. 34, s. 363, s. 364

Subjects

murdercircumstantial evidencepresumption of innocenceadverse presumptionabnormal conductIPCEvidence Actcriminal appeal

Judgment

... [2009] 8 S.C.R. 291
..,.
JOYDEEP NEOGI @ BUBAI A
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 1285 of 2006)

MAY 8, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
"' GANGULY, JJ.]

Penal Gode, 1860: s. 302 - Murder - Missing boy seen
last at a particular place - Accused persons also seen there c
the whole day - Recovery of dead body of boy - Conviction
based on cirqumstantial evidence - (;hal/enged by A 1 and
A2 - Held: Presence of accused for whole day in a specific
~
place and misleading prosecution witnesses to search in
other place and not allowing them to search at a particular D
place destroys the presumption of innocence - Unnatural,
abnormal or unusual behaviour of the accused after the
offence relevant circumstan<;e against them - Circumstances
establishing accusations so far as A-1 is concerned - His
conviction is upheld - But circumstances not sufficient to E
fasten guilt Of! A-2 - His conviction is set aside - Evidence -
Circumstantial evidence.
\
I

Evidence: Conduct which destroys the presumption of
innocence can be considered as relevant and material -
Unusual and abnormal conduct on part of accused create F
adverse presumption ag§Jinst them.

Prosecution case was that on 6.11.2001, son of PW-
1 was playing in the playground. He did not return home
~· after usual hour and his mother started searching for him. G
~
At 1.30 P.M., a telephone call was received by mother of
deceased regarding the wrongful detention of deceased.
When PW-1 returned home, he also made search for his
son but without any result and ultimately he lodged
291 H
292 SUPREME COURT REPORTS [2009] 8 S.C.R.

A complaint. The appellants were detained for few hours in
connection with the case on the basis of written
complaint of PW-1 but later released. On 16.11.2001,
dead body of deceased was recovered on the
information given by the accused persons. The trial
B Court convicted the accused person except A-4 and th~
appellants. High Court upheld the finding of guilt,
however modified the order of conviction of appellants
under ss.363, 364, 302, 201, r.w. s.34 IPC. A-1 and A-2 filed •'
these appeals.
c Allowing the appeal of A-2 and dismissing the appeal
of A-1, the Court

HELD: 1. From the evidence it is clear that on
6.11.2001, the deceased was last seen in the Uttararmath.
D At that time, four accused were also seen there and upon
questioning by the witnesses they gave false
explanations and misled the witnesses so that they did
not go to the western side of the area. This unusual and
abnormal conduct on the part of the accused, no doubt
E created an adverse presumption against them. P.W.1
went out to search his son in the said math along with
other local people and his brother. At that time, they also
found the four accused persons in that place. Part of his
evidence is corroborated by the evidence of his brother
F P.W.7 who st;ited that at about 2.15 P.M. his brother PW-
1 returned home from his office, they narrated the
incident to him and then he along with his brother and
some other people went to search for the child in the
ponds near the Uttararmath and when they were about
G to enter the Math area, accused came towards them and
asked P.W.7 as to where they were going, to which P.W.7
replied that they were searching for son of PW-1 in the
pond. The accused stated that they searched for the child
in those ponds but he was not there and after hearing the
same, they came back to their house. This was
H
JOYDEEP NEOG! @ BUBAI v. STATE OF WEST 293
BENGAL
.....
corroborated by PW-1, PW-4 and PW-7. [Paras 7 and 8) A
[296-G-H; 297 -A-F]

2. From the evidence of P.W.5 it appears that in the
rne,.,n ~ime on the same day i.e. on 6.11.2001 at about 1/
1.30 P.M. there was a telephone call in male voice to his
B
house and he was asked to call some one from the house
.,
.
of PW-1. This call was attended by P.W.3. From her
I evidence it appears, while she attended the telephone call
one male person in low voice said that deceased was with
them and asked her not to search for him or inform the
police and when she enquired who was speaking and
c
from where, the voice on the telephone stopped.
According to PW3, she narrated t~e incident before her
husband PW 7, PW4, PW11 and many other persons. All
·~
these PWs. corroborated this part of evidence of PW 3.
[Paras 10) [299-A-D] D

3. From the evidence of PW1, PW 2, PW 3, PW 4, PW7,
It is clear that the four accused were found in the Uttarar
Math since morning of 11 A.M. to 5 P.M. when it was dark.
When a case rests purely on circumstantial evidence, the E
circumstances from which the inference of guilt is sought
to be proved must be cogent and firmly established, and
\
• that should unerringly point towards the guilt of the
accused, and that must make a chain complete to form a
view that the crime was committed by the accused alone
F
and none else. The accused told the P.Ws not to search
in a specific side of the Uttarar Math and asked them to
search deceased on the other sides. The P.Ws i.e. even
the parents and other relatives of the deceased did not

.. suspect anything. They relied upon the accused on good

-
G
faith. A criminal trial is not an enquiry into the conduct of
an accused 'for any purpose other than to determine his
guilt'. It is not disputed that piece of conduct which is not
connected with the guilt of the accused is not relevant.
But at the same time, however, unnatural, abnormal or
H
294 SUPREME COURT REPORTS [2009] 8 S.C.R.

A unusual behaviour of the accused after the offence may
be relev!lnt !=ircumstance against him. Such conduct is
inconsistent with his innocence. So the conduct which
destroys the presumption of innocence can be
considered as relevant and material. So, the presence of
B the accused for a whole day in a specific place and
misleading the P.Ws to search in other place and not
allowing them to search in a specific place certainly
creates a cast iron cloud over the innocence of the "
I

accused persons. [Paras 11, 12 and 13] [299-E-H; 300-A-
C DJ
4. The circumstances clearly establish the
accusations, so far as the appellant A-1 is concerned.
There is no scope for interference in the appeal filed by
him. But the circumstances are not sufficient to fasten
D guilt on A-2. His conviction is set aside and he is acquitted
of the charges. [Para 15] [302-C-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. ·1285 of 2006.
E From the Judgment & Order dated 25.08.2006 of the High
Court of Calcutta at Calcutta in Crl. Appeal No. 149 of 2005.
1
WITH

F Crl. Appeal No. 122/2007.
Surinder Singh, C.K. Sasi, Parthiv Goswami, S.K. Dubey
and Rajiv Mehta for the Appellant.

Avijit Bhattacharjee and Bikas Kar Gupta for the
G Respondent.

The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. These two appeals are inter
-
linked and are therefore disposed of by a common judgment.
H Challenge in these appeals is to the judgment of the Division
JOYDEEP NEOGI @ BUBAI v. STATE OF WEST 295
BENGAL [DR. ARIJIT PASAYAT, J.]
.,.,
Bench of the Calcutta High Court upholding the convictibn of A
the appellants except that the order of conviction was mbaified
and the appellants were convicted for offences punishable
under Sections 364,302,201 read with Section 34 of the Indian
Penal Code, 1860 (in short the 'IPC'). Seven persons faced
trial before learned Additional Sessions Judge Alipurduar. Six B
of them i.e. present appellants were convicted and one of them ·
i.e. accused No. 4 was acquitted. While accused No.2 Joydeep
?
' Neogi is the appellant in Criminal Appeal No. 1285 of 2006,
Debasish Das-accused no.1 is the appellant in Criminal Appeal
No. 122 of 2007. Accused nos. 3 and 6 are proforma c
respondents in Criminal Appeal No. 122 of 2007.

2. The prosecution version as unfolded during trial is as
follows:

On 6 November, 2001 Ranadip (hereinafter referred to as D
"deceased") son of Kr. Mallick Gupta was playing on a nearby
playground of his house and as he did not return even after the
usual hour, his mother and other relatives started searching for
him, but without any result. At about 1.30 P .M., an anonymous
telephone call was received by a neighbour wherefrom E
information was gathered about wrongful detention of Ranadip.
When de facto complainant returned from his office, he also
made a search for his son, but, without any result and ultimately
.._
'' the complaint was lodged with the local P.S. alleging kidnapping
of Ranadip with some dishonest intention. F
It appears from record that on receipt of the FIR of de facto
complainant, S.I. Laskar of Alipurduar P.S. took up the
investigation and on 6th November, 2001 itself the present
appellants were detained for a brief period in connection with
the case started on the basis of written complaint of de facto G
-lo-
complainant, but subsequently on the same date the appellants
were released.

On 16th November, 2001 getting information about
locating of dead body of Ranadip at a place near Buxer forest H
296 SUPREME COURT REPORTS [2009] 8 S.C.R.
....
A on the basis of information given by appellant Debasish @
Sona and another accused Raju. On getting information about
involvement of other persons in the murder of Ranadip and
removal of his dead body, all the seven persons including thE!
present appellants were arrested on 16th November, 2001 and
B thereafter after recording the statemznt of witnesses, on receipt
of post mortem report of Ranadip, recovery of tettain
incriminating articles at the instance of the appellants and on
the basis of confessior.al statement of accused Chaton Sarkar, ''
S.I. Laskar being the investigating officer of the case found a
c strong prima facie case against seven persons including the
appellants under Section 363/364/302/201/34 IPC and on
completion of investigation, charge sheet was accordingly
submitted against seven persons including the present
appellants.
D 3. Accused persons abjured guilt and therefore trial was
held.

4. Since the case is based on circumstantial evidence, the
trial Court referred to various circumstances and held that the
E appellants were guilty while directing acquittal of A4. As noted
above, the judgment of the trial court was assailed in appeal
before the High Court. In both appeals the High Court, except
1
the modification of the conviction, upheld the finding of guilt and '
dismissed the appeals. ·'
F 5. Learned counsel for the appellants submitted that the
circumstances highlighted do not present a complete chain of
circumstances and therefore the judgments of the trial court and
the High Court are not correct.

G 6. Learned counsel for the respondent-State supported the ~
judgment of the trial court as upheld by the High Court.

7. From the evidence it is clear that on 6.11.2001 Ranadip
was last seen in the Uttararmath. At that time, these above
named four accused were also seen there and upon questioning
H
1
;

JOYDEEP NEOGI @ BUBA! v. STATE OF WEST 297
.... BENGAL [DR. ARIJIT PASAYAT, J.]

by the witnesses they gave false explanations and misled the A
t
witnesses so that they did not go to the western side of the
"
~ area. This unusual and abnormal conduct on the part of the
~ accused, no doubt creates an adverse presumption against
them.

i
B
8. Now the 2nd phase of this case comes out from the
., evidence of P.W.1 i.e. the defacto complainant. It appears that
\
after returning from his duty and being informed regarding the
entire matter he went out to search his son Ranadip in the said
math along with other local people and his brother. At that time,
they also found the four accused persons in that place. Part of
c
his evidence is corroborated by the evidence of his brother
Manik Kr. Mallick Gupta i.e. P.W .7 who stated that at about 2.15
P.M. his brother Rabindra Mallick Gupta (Defacto complainant)
f ·+; returned home from his office, they narrated the incident to him
~
and then he along with his brother and some other people went D
to search for Ranadip in the ponds near the Uttararmath and
when they were about to enter the Uttarar Math area, accused
Sona, Tuhin, Chaton and Bubai came towards them and asked.
addressing P.W.7 as Manik Dan as to where they were going,
= to which P.W.7 replied that they were going to search for E
Ranadip in the pond. The accused named above stated that
,.' they searched for Ranadip in those ponds but Ranadip was not
-·' there and after hearing the same, they came back to their house.
Cf
P.W.4 corroborated this and stated that after return of Rabindra
Mallick Gupta to his house from duty at about 2.30 P.M., he F
along with Rabindra Mallick Gupta and many other people went
to search for Ranadip in the ponds of Uttarar Math and near
the same math they saw accused Sona, Bubai, Tuhin and
Chaton and they stated to Rabindra Mallick Gupta that they had
~ searched for Ranadip in the side of pond and jungle and asked G
.. him to search for Ranadip on other sides. The above named
.... four accused persons were found present in the Uttarar Math
on 6.11.2001 on and from 11.15 A.M. till 2.30 P.M. On
6.11.2001 failing to find out his son Rabindra Mallick Gupta,
the defacto complainant at about 3.45 P.M. along with others
H
298 SUPREME COURT REPORTS [2009] 8 ~JC.Ft

A went to the Alipurduar P.S. and lodged a written complain there.
The complaint is marked as Ext.1. It comes out from the
evidence of PW 1 (father of the deceased) that after lodging
of the same in the P.S. on 6.11.2001, police came to his house
and asked him and his neighbours to shbW the place Where
B Ranadip was last seen plc:ying. Accordingly, PW1
accompanied police to the grouna on the northern side of his
house where Ranadip was last seen playing. At that time also
they found that these four accused Sona, luhin, Bubai and '
I

Chaton were present there and when police personnel were
c going to make a search on the western side of the same
ground, these four accused stated to them that they made
search on the said western side jungle and there was no
necessity to proceed towards that side. Accordingly, police did
not proceed towards the western side. !hereafter making
search police went away. This part of the evidence of P.W. 1
0
is corroborated by Ashil Bose (P.W.4) and Mariik Kr. Mallick
Gupta (P.W.7). From the evidence of P.W.4 it appears at about
5 P.M. in his presence police reached the house of Rabindra
Mallick Gupta. (P.W.I) and the members of the house narrated
the incident to police and he also at that time stated to the
E police that on the same date at about 11111.15 A. M., while he
was coming through Uttarar Math, he found accused Sona,
Bubai, Tuhin and Chaton were loitering here and there in the , .....
same math and deceased Ranadip, Bittu and Sayan were also
found playing there. According to P.W.4 he along with Daroga
F Babu and others went to the same math when it was dark. But
at the same time they found these four above named accused
to be loitering in the same Math and they again stated also to
Daroga Babu that they had searched for Ranadip in jungle and
other places but Ranadip was not there.
G
9. P.W.7 also corroborated this by stating that towards the
evening on the same day at about 5.30 P.M. police came to
their house and they narrated the incident to them and also the
incident of Uttarar Math and then they along with the police
-
H
(

-
'

""'-
'
JOYDEEP NEOGI @ BUBAI v. STATE OF WEST
BENGAL [DR. ARIJIT PASAYAT, J.]
personnel went to Uttarar Math where they again saw accused
299

A
Choton, Sona, Bubai and Tuhin present there.

10. From the evidence of P.W.5 i.e. one Swapan Roy it
appears in the mean time on the self same date i.e. on
6.11.2001 at about 1/1.30 P.M. there came a telephone call in
B
rriale voice to his house and he was asked to call some one
frorri the house of Mallick Gupta. This call was attended by
~ Sipra Mallick Gupta. This Sipra Mallick Gupta is examined as
P .W .3 in this case and from her evidence it appears, while she
attended the telephone call one male person in low voice
saying "Chela Amader Kachaa Achaa, Khoja Khuji Kariban
c
naa, policea Khabar Deban Naa", (Ranadip is with us. Do not
search for him. Do not inform police) and when she enquired
who was speaking and from where, at that time the voice on
the telephone was stopped. According to PW3, she narrated
the incident before her husband Manik Mallick Gupta, (PW 7), D
As hit Bose (PW4), Bhupen Oebnath (PW11) and many other
persons. All these PWs. have corroborated this part of evidence
of PW 3.

11. From the evidence of PW1, PW 2, PW 3, PW 4, PW? E
i.e. Rabindra Kumar Mallick Gupta, Nupoor Mallick Gupta,
Sipra Mallick Gupta, Ashil Bose and Manik Mallick Gupta, it is
~
clear that the four accused named above were found in the
,,- Uttarar Math since morning of 11 A.M. to 5 P.M. when it was
-·' dark. When a case rests purely on circumstantial evidence, the F
circumstances from which the inference of guilt is sought to be
proved must be cogent and firmly established, and that should
unerringly point towards the guilt of the accused, and that must
make a chain complete to form a view that the crime was
committed by the accused alone and none else.
G
12. From the trend of evidence discussed above it can be
presumed like Ranadip (deceased) all the four accused i.e.
Sona, Tuhin, Bubai and Choton are the para boys. The
accused told the P.Ws not to search in a specific side of the
H
300 SUPREME COURT REPORTS [2009] 8 S.C.R.

#
-
A Uttarar Math and asked them to search Ranadip in other sides.
The P.Ws i.e. even the parents and other relatives of the
deceased did not suspect anything. They relied upon the
accused on good faith. A criminal trial is not an enquiry into the_
conduct of an accused 'for any purpose other than to determine
B his guilt. It is not disputed piece of conduct which is not
connected with the guilt of the accused is not relevant. But at
the same time, however, unnatural, abnormal or unusual
behaviour of the accused after the offence may be relevant
circumstance against him. Such conduct is inconsistent with his
c innocence. So the conduct which destroys the presumption of
innocence can be considered as relevant and material.

13. So, the presence of the accused for a whole day in a
specific place and misleading the P.Ws to search in other place
and not allowing them to search in a specific place certainly
D creates a cast iron cloud over the innocence of the accused
persons.

14. The circumstances noticed by the trial Court and the
High Court are as follows:
E
(1) Debashish Das @ Sona (A-1), Joydeep Neyogi @
Bubai (A-2), Choton Sarkar (A-4) and Babban Talukdar@
Tuhin (A-6) were present in the Uttar-Math at about 11.15 ~

AM. when the deceased along with Saiyan and Bittu were .,

playing there. This has been stated by Ashit Bose (PW-
F 4), Sudipta Das (P.W-9), Krishnan Sen Gupta (PW-10) and
Bhupin Dev Nath (PW-11 ).

(2) At about 11.30 AM. Nupur Gupta (PW-2) and Krishna
Dey (PW-6) went in search of the deceased to Uttar Math.
G When they reached the municipal road, they saw Sona (A-
1) coming on a cycle from the northern side of the ground.
H.e asked them as to what had happened. He was informed
that the deceased was not being found. Sona stated that
the deceased, Bittu and Saiyan were playing on the ground.
H However, when Saiyan's father took away Saiyan, Bittu and
'
~·

JOYDEEP NEOGI @ BUBAI v. STATE OF WEST 301
BENGAL [OR. ARIJIT PASAYAT, J.]
.....
the deceased also went away. At that time, Bubai (A-2), A
Choton (A-3) and Tuhir (A-6) were standing under a tree
on the southern side of the ground;

(3) When Ravindra Gupta (PW-1) and other persons of the
locality went in search of the deceased, the accused
B
diverted their search from the western side of the ground.
Similarly, when the police went in search of the deceased,
~
\
these accused diverted the search from the western side
of the field. This has been stated by Ravindra Gupta PW-
1, Ashit Bose PW-4 and Manik Gupta-PW?;
c
.,,.,· (4) On the same day at about 6.30 p.m. Sona (A-1) was
..';
seen driving a motorcycle towards Alipur Ouar junction.
Raju (A-5) was riding on the pillion and was carrying a
bundle (bochka). This has been stated by Debabrata Dhar
·•· (P W-12). D

(5) On the same day at about 6.30 P.M. Sona (A-1) made
an extra judicial confession to Sudipta Das (PW-9) outside
the tea stall of one Malay. At that time Bubai (A-2) and
:,.
Choton (A-3) were inside the tea stall taking tea. This has
E
been stated by Sudipta Das (PW-9).

........... (6) On 16.11.2001 Sona (A-1) was arrested at 1:15P.M .
Bubai (A-2) at 1:45 P.M., Chotan (A-3) at 1:25 P.M. and
Tuhin (A-6) at 1:05 P.M. They were confined at P .S. Alipur
Duar. Proshanta Sen Gupta (PW-15) and Subrata Sen F
Gupta (PW-16) met them in the lock up. The four accused
made extra judicial confessions before them.

(7) On 16.11.2001 Sona (A-1) and Tony (A-7) made
,. disclosure statements under Section 27 of Evidence Act
· and discovered the dead body of the deceased. This has
G

been stated by B.K. Laskar 1.0 (PW-25). In consequence
to the information furnished by these two accused, the body
of the deceased was discovered near the tonal training
office. This has been stated by Proshanta Sen Gupta (PW-
H
"==
302 SUPREME COURT REPORTS [2009] 8 S.C.R. '

A 15), Subrata Sen Gupta (PW16), Provesh Biswas (PW-
18), Atual Das (PW-19), Pranav Roy (PW-23), B.K.Laskar
1.0 (PW-25) and Sanjeev Basu (PW-26). A seizure memo
exhibit P-9 and the inquest exhibit P-12 were prepared.

(8) On 19.11.2007 B.K. Laskar (PW-25) took Sona (A-1),
B
Bubai (A-2) and Raju (A-5) to the western side of the Uttar-.
Math, from there a pair of hawai chappals and a length of
nylon rope were seized vide exhibit-2/2. This has been
.,
stated by Ravindra Gupta (PW-1), Ashid Bose (PW-4) and
B.K. Laskar (PW-25). The hawai slippers were identified
c by Ravindra Gupta (PW-1) and Nupur Gupta (PW-2) as
belongings to the deceased.

15. The circumstances clearly establish the accusations,
so far as the appellant Debasis Das (A-1) is concerned. There·
D is no scope for interference in the appeal filed by him. (i.e.
...
Criminal Appeal No.122 of 2007) 'is concerned. But the
circumstances are not sufficient to fasten guilt on Joydeep (A-
2) appellant in Criminal Appeal No.1285 of 2006 is concerned.
His conviction is set aside and he is acquitted of the charges.
E His appeal is allowed. He be released from custody forthwith
unless required in connection with any other case.

D.G. Appeal disposed of.
-