REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.1939 OF 2008

Amitava Banerjee @ Amit  @ Bappa Banerjee      

                                   …Appellant

Versus

State of West Bengal                                   …Respondent

J U D G M E N T

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  

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  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 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 BDO office. A few days before the 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-

2

servant  in  the  house  of  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.

3. On 12th of July, 1998, the deceased as usual went to  

play in the park but did not return home by the evening.  

The  parents  of  the  deceased  panicked  and  started  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  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  

questioned about the whereabouts  of  the deceased and  

the  fact  that  he  was  seen  taking  the  boy  towards  the  

3

Kanchan Oil Mill but the appellant denied the same. About  

the bicycle the appellant stated that he had handed the  

same over to one of his friends.

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 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 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  

4

the 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  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  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  

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  

5

transferred the same to the 5th 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 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  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 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  

6

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, PW-

16,  Executive  Magistrate,  who  conducted  the  inquest,  

Tapan Kumar Chatterjee, PW17 who made an entry in the  

General Diary under S.No.463 regarding the presence of a  

cycle  and  the  ditch  in  the  jungle  and  Swapan  Kumar  

Mohanti,  PW20,  Judicial  Magistrate,  who  conducted  the  

test  identification  parade  were  also  examined  by  the  

prosecution  apart  from  the  Investigating  Officer  Shri  

Kushal Mitra, PW22.          

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  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  

7

the alleged motive but that version had been disowned by  

her  at  the  trial.  Since,  however,  the  statement  of  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 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 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 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  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  

8

his cycle. On the following day i.e. On 13.7.98 at the  very  morning  he was seen 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 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 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 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 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 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. Those articles were seized and produced  in court  and duly identified by the seizure witnesses.  Thereafter  the  dead  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 place about 24 hours back  due to throttling/strangulation, which was homicidal in  nature.  After  recording  the  statements  of  several  witnesses,  I.O.  (PW22)  arrested  the  accused  and  as  shown by the accused the spade was recovered from  the premises of Rukmini Yadab (PW11). That spade is  

9

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  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 to such discovery is also brought  into evidence. The statements of witnesses, Rajib, Jiten,  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.

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  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 of the accused. In the  present case, there 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 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  

1

the appellant for the offences 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 impugned in this appeal affirmed the  

conviction  and  sentence  awarded  to  the  appellant  and  

dismissed the appeal. The High Court has while doing so  

re-appraised  the  evidence  on  record  held  that  the  

circumstances proved at the trial were explainable on no  

other  hypothesis  except  the  guilt  of  the  appellant.  The  

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 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 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  custody  of  the  

1

deceased  before  his  murder  and  the  entire  circumstances establishes and proves that the appellant  was the murderer.”

10. The  present  appeal  by  special  leave  assails  the  

correctness  of  the view taken by the courts  below. We  

have 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  

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 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  

1

upset  the  opinion  of  the  Courts  below,  so  long  as  the  

same  is  a  reasonably  possible  view.  Perversity  in  the  

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 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  

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  

of the depositions of the witnesses examined at the trial.  

In his deposition Asit Kumar Mondal, PW1, stated that he  

1

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 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 BDO 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 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 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.

1

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, the deceased instead went 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  later  was  standing.  Sometime  later  the  

appellant and Babusona were both seen 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 Babusona sitting on a Bench at about 5.00-5.30 p.m.  

on 12th July, 1998 when the appellant came there, called  

out  to  Babusona and took him away on his  bicycle  by  

making him sit on the front rod of the cycle. The witness  

admitted that he was examined under Section 164 of the  

1

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  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  

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 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  

1

the 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 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 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. 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  

1

witness  identified  the  spade  seized  by  the  police  and  

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.  

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 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.10 was also prepared on  

which the witness had affixed her signature.

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  

1

the appellant coming out of the Sitaldihi jungle on the 13th  

July, 1998 early in the morning.  At the trial this witness  

has partly supported the prosecution.  He has stated that  

about 2½ 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  

appellant coming out of the Sitaldihi jungle in the morning  

of 13th July, 1998. The witness was declared hostile and  

was  cross-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  difference  having  regard to  the  

fact  that  Gurupada  Mondal,  PW2  has  supported  the  

prosecution  and  stated  in  his  deposition  that  a  black  

colour  bicycle  and  the  ditch  which  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.   

1

20. Tarun  Banerjee,  PW13  was  occupying  the  ground  

floor 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-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  

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 also 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  nothing  has  been  extracted  

from him that  could  shake  his  credibility.  In  his  cross-

examination the witness has stated that the appellant had  

2

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 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:

“External Injuries:

(1) Homatoma 1” x 1” over the occipital region of the  scalp and ½” x ½” on the front and back of right  pinna.

(2) Scratch 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. (5) Old hemorrhagic mark both upper and lower jaw.   (6) Eccymosis 10” 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  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  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.

In our  opinion  of  death is  asphyxia  as  a result  of  throattling/strangulation  which  is  antemortem  and  homicidal in nature.”

2

22. The witness further stated that injury no.4 could be  

caused  due  to  tying  of  the  neck  with  a  substance  like  

‘Sutli’. 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.

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  

Pal,  PW18  are  police  witnesses.  While  the  former  has  

proved the GD No.438 dated 12th July, 1998 lodged by  

Asit Kumar 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  Kumar  

Mondal  and  which  has  been  marked  Ext.1.  In  cross-

examination the witness stated that as soon as the dead-

2

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, PW1.  

25. Swapan Kumar Mahanti,  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 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  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 the Sub-Jailor and were mixed with the suspect.  The  

2

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  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.  

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  circumstances  and resultantly  

benefit the appellant. He urged that even when Mangala  

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  

2

constitute substantive evidence in the case and 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 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 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  

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 explain or  

establish  by  substantive  evidence.  Human nature  being  

2

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 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 of pecuniary or other obligation or burden  of  obtaining  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.”

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 W.B. 1994 (2) SCC 220,  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 M.P., 2009 (12) Scale  

2

580,  Mulakh Raj and Ors.  v.  Satish Kumar and Ors.  

1992 (3) SCC 43.  

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. 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  him  guilty.  Both  these  

requirements had, according to Mr. Mukherjee, failed in  

the instant case entitling the appellant to an acquittal.  

30. Mr.  Ghosh,  on  the  other  hand,  argued  that  the  

circumstances relied upon by the prosecution had not only  

been  firmly  established  but  the  same form a  complete  

chain that leaves no room for any conclusion other than  

2

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 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  

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  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.

(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

2

(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.”

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 Uttaranchal, 2010 (2)  

SCC  583.  In  Aftab  Ahmad  Ansari (supra)  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. 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 establishing the guilt of the 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  circumstantial  evidence  alone,  it  must  exclude  each  and  every  hypothesis  suggested  by  the  accused,  howsoever  extravagant and fanciful it might be.”

2

33. What,  therefore,  needs  to  be  seen  is  whether  the  

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 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  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 of  his  

3

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  

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.

(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  Mondal,  PW  14,  mother  of  the  

deceased respectively clearly establish this fact.

3

(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 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  Mondal,  

PW14 clearly establish this circumstance also.  

(4) At  about  8.30  p.m.  on  12th July,  1998  the  

parents of the deceased Asit Kumar Mondal, PW 1  

and  Chhanda  Mondal,  PW14  saw  the  appellant  

entering  his  (appellant’s)  residential  quarter  from  

the rear door of the quarter. When 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  

3

establishes  that  at  that  time  the  appellant  was  

without any chappal on his feet and the cycle that  

he owned.  

(5) The  deceased-Babusona  was  last  seen  by  

Rajib Roy Chowdhury, PW 7 and Jiten Sen, PW8 in  

the  park  talking  to  the  appellant  and  shortly  

thereafter  going with the appellant  on his  bicycle  

towards the Kanchan Oil Mill which is in the same  

direction as of Sitaldihi jungle. The deposition of the  

said two witnesses has firmly established 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 witness was returning home from Kanchan  

Oil Mill. On seeing the witness the appellant and the  

deceased  proceeded  deeper  into  the  Sitaldihi  

jungle.

3

(7) On  the  following  day  i.e.  13th July,  1998  

Jhargram Police Station received information about  

a  newly  dug  ditch  inside  the  Sitaldihi  jungle  at  

some distance from the residential complex 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  

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 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  

Mondal,  PW2,  Kushal  Mitra,  PW  22,  Sunil  Deloi,  

PW5, Tarun Banerjee, PW13, Dipak Kumar Sarkar,  

PW16,  Swapan  Kumar  Pal,  PW18  and  Dilip  

Bhattacharyya, PW19 firmly establish this fact.

3

(8) At  some  distance  from the  place  where  the  

dead body was buried, the police found a pair of  

hawai chappal, two 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 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’ (jute string) was 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 including the head.

3

(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 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 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.   

(12) From  the  Sitaldihi  jungle  a  cap  which  the  

appellant was wearing on the fateful day was also  

recovered  in  the  presence  of  Gurupada  Mondal,  

PW2 and Dilip Namata, PW3.

3

(13) Apart from leaves of Anand Bazar Patrika, the  

‘Sutli’ 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.  

(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  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 of the spade with newspaper and  

tied it with ‘Sutli’ (jute string) and carried the same  

on his bicycle.   

3

(16) The  deposition  of  Dr.  Rajat  Kanti  Satpati,  

PW15 who conducted the post-mortem examination  

and opined that 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  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  

according to the witnesses Sunil Deloi,  PW5,  Rajib  

Roy  Chowdhury,  PW7,  Jiten  Sen,  PW8  and  Smt.  

Chhanda  Mondal,  PW14  seized  by  Kushal  Mitra,  

PW22 in the presence of Asit Kumar Mondal, PW1,  

and Tarun Banerjee PW13 during investigation were  

duly identified by them in the Court.    

3

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 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 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  

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  having  been last  

seen with the appellant around the time he was killed is a  

3

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  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 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 prosecution witnesses was worn by the  

appellant on the date of occurrence from Sitaldihi jungle is  

also  a  circumstance  that  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  

4

Sitaldihi jungle, from near the place where the dead body  

was burried is 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 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  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 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 Tarapada Mahato, PW9 was a procured  

witness  has  not  impressed  us.  There  is  nothing  in  the  

4

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 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 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 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 from the  

room in which the witness was made to sit before the T.I.  

4

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  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  

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.                                           

……………………..……….J. (V.S. SIRPURKAR)

……………………..……….J. (T.S. THAKUR)

New Delhi

4

August 17, 2011

4