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Non-Reportable  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.130 of 2012

DILIP MALLICK

.... Appellant Versus

STATE OF WEST BENGAL  

….Respondent

J U D G M E N T

L. NAGESWARA RAO, J.

This  Appeal  is  filed  against  the  judgment  dated

22.03.2010 of the High Court of  Judicature at Calcutta in

Criminal Appeal No.326 of 2005 by which the conviction of

the  Appellant  under  Section 302 Indian Penal  Code,  1860

(hereinafter  referred  to  as  the  ‘IPC’)  and  sentence  of  life

imprisonment by the Additional Sessions Judge, Fast Track

2nd Court,  Siliguri  in  Sessions  Trial  No.03/04  dated

11.02.2005 was confirmed.    

2. A decapitated body was found lying in the Chandmuni Tea

Estate  near  Himachal  Behar  Abasan  Project  at  13:15

hours on 03.02.2004.  On the basis of a written complaint

made by Bhupendra Nath Singh (PW-12), the investigation

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commenced and the Appellant along with Hira Routh and

Khogesh Bansfore were arrested.

3. During  the  course  of  investigation  the  statements  of

accused  persons  were  recorded  on  04.02.2004.  The

accused  led  the  police  to  Chandmuni  Tea  Estate  area

where the cut head was found wrapped with the wearing

apparel of the deceased Sambhu Mallick son of late Pandi

Mallick of Kuli Para, Siliguri.  It was found concealed with

soil and dry leaves in a garden drain.  The body and the

head of the deceased were identified by his relatives.   The

decapitated  body  and  the  cut  head  were  sent  for

post-mortem  to  the  North  Bengal  Medical  College  and

Hospital and the seized articles along with wearing apparel

of the deceased were sent to the R.F.S.L., Jalpaiguri.  The

weapon  used  for  the  commission  of  offence  was  also

recovered  on  the  basis  of  the  statement  and  disclosure

made by the accused persons from a concealed place on

08.02.2004.   

4. Charges  under  Sections  302/201/34  IPC  were  framed

against  all  the  three  accused  persons  who  pleaded  not

guilty  and  claimed  to  be  tried.   After  a  detailed

consideration  of  the  entire  evidence  on  record,  the

Additional Sessions Judge, Fast Track 2nd Court, Siliguri

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found  all  the  accused  persons  guilty  of  committing  an

offence  under  Section  302/201/34  IPC  and  sentenced

them to suffer imprisonment for life.  The Trial Court relied

upon the testimonies of PW-3, PW-4 and PW-5 who are the

family members of the deceased – Sambhu Mallick in its

detailed discussion of oral evidence.   PW-3, the wife of the

deceased  deposed  that  her  husband  was  a  sweeper  by

profession and at about 02:00 pm on 02.02.2004 the three

accused persons and the father of Dilip Mallick came to

their house and asked the deceased to accompany them

for cleaning a safety tank.  The Appellant took the cycle of

deceased Sambhu Mallick and carried him on the cycle.

As  the  deceased  did  not  return  home,  PW-3  started

searching for him in the evening.   She went to the house

of  the  Appellant  and  was  informed  by  the  Appellant’s

father that her husband and the Appellant went to clean a

safety  tank.    The  deceased  did  not  return  home  that

night.  She met the Appellant on the next day morning and

enquired about her husband.   The Appellant asked her to

go to Matigara Police Station.  PW-3 deposed that she went

to  the  Police  Station  but  did  not  find  him  there.   On

04.02.2004 she came to know about a beheaded body near

Chandmuni Tea Estate area. It was identified to be that of

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her husband by her mother-in-law and sister-in-law from

his wearing apparel.   PW-4 and PW-5 are the sister and

mother of the deceased respectively who corroborated the

evidence of PW-3.    5. The post mortem over the beheaded body and the cut head

was  conducted  by  Dr.  U.B.  Ray  Chaudhary  (PW-10)  at

North  Bengal  Medical  College  and  Hospital.   The  post

mortem report Exh. 11 which was issued by PW-10 shows

that there were eight stab injuries on the chest, stomach

and other vital parts of the body.  It was stated in the post

mortem report that proximal and distal part of the neck

fitted snugly with each other and that the head and the

rest of the body belonged to the same individual.  PW-14

was the witness to the seizure list marked as Exh.17 in

respect of  recovery of  an iron made Khukri  used in the

crime.  It was approximately 13 inches in length with a

wooden butt and was recovered as per the statement and

information of the accused on 08.02.2004.   6. The Trial Court held that the chain of circumstances was

clearly  established  by  clinching  evidence  which  proved

that the accused persons had committed the offence.  The

Appellant and the other accused Hira Routh and Khogesh

Bansfore challenged their conviction and sentence by filing

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an Appeal before the High Court of Calcutta.  The counsel

appearing for the State conceded that the evidence against

Hira Routh and Khogesh Bansfore was not sufficient for

their  conviction  and  that  she  could  not  support  the

judgment of the Trial Court in respect of their conviction

and sentence.  The High Court re-appreciated the evidence

on record and upheld the conviction and sentence of the

Appellant  qua Section  302  IPC.    The  Appellant  was

acquitted of the charge under Section 201 IPC.  The other

two  accused,  Hira  Routh  and  Khogesh  Bansfore,  were

acquitted  of  all  the  charges.  The  High  Court  held  that

there were three circumstances against the Appellant. The

three  circumstances  relied  upon by  the  High  Court  are

that the accused and the deceased were last seen together,

that the accused attempted to mislead PW-3 regarding the

whereabouts of the deceased and that the accused did not

offer any explanation about the events of 02.02.2004. The

High  Court  held  that  though  the  prosecution  failed  to

prove the recoveries made pursuant to the joint disclosure

statement, the other circumstances clearly pointed to the

guilt of the accused.    

7. After  hearing  the  counsel  for  both the  parties,  we have

examined the  oral  and documentary  evidence  on record

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and we are of the opinion that the judgment of the High

Court does not warrant any interference.  This is a case of

circumstantial evidence.  The approach to be adopted in

appreciation  of  evidence  in  cases  of  circumstantial

evidence  is  by  now well  settled.   The  facts  in  cases  of

circumstantial evidence should be consistent only with the

hypothesis of guilt of the accused and the circumstances

should be of conclusive nature and tendency.  It has been

held by this Court that the chain of evidence should be

complete as not  to leave any reasonable  ground for  the

conclusion consistent with the innocence of the accused

and must show that in all human probability the act must

have been done by the accused.  (See (1984) 4 SCC 116).

On  the  basis  of  the  above  well-settled  principles,  we

proceed to examine whether the accused can be held to be

guilty.  

8. PW-3, PW-4 and PW-5 who are the family members of the

deceased  were  consistent  in  their  testimonies  that  the

deceased and accused were last seen together at around

02:00  pm  on  02.02.2004.  There  is  a  burden  on  the

accused to give an explanation about what happened after

they left the house of the deceased.  No explanation was

given about the events of 02.02.2004 after they left from

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the  house  of  the  deceased.   In  the  examination  under

Section 313 Cr. P.C. the accused denied any knowledge of

the crime and alleged false implication.  Section 106 of the

Indian Evidence Act, 1872 imposes an obligation on the

accused to explain as to what happened after they were

last seen together. PW-3 gave evidence to the effect that

the accused was not found in his house in the evening on

02.02.2004 when she went to enquire about her missing

husband.   She also stated that when she met the accused

on the next day morning, the accused misled her by saying

that she should go to Matigara Police Station in search of

her husband.   It is clear that the accused who was with

the  deceased  on  the  earlier  day  did  not  give  a  proper

answer to PW-3 and asked her to go to the Matigara Police

Station which indicates that he was suggesting to PW-3 to

complain to the police.  These are strong circumstances

against the accused.   

9. There  is  one  circumstance  pertaining  to  recovery  which

could not be proved by the prosecution beyond reasonable

doubt.  The High Court held that recovery of the weapon

and  the  severed  cut  head  of  the  deceased  was  not

corroborated by  PW-7 and PW-14 who were  seizure  list

witnesses.   The High Court  also  held  that  the  recorded

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version of the statement made by the Appellant which led

to recovery was not produced by the prosecution. The High

Court  found  that  there  was  no  evidence  to  show as  to

which particular article was recovered at whose instance

pursuant to the joint statement made by the accused.  The

High  Court  proceeded  to  hold  that  the  circumstances

relating  to  recovery  was not  proved by  the  prosecution.

The High Court concluded that the Appellant was guilty on

the  basis  of  other  circumstantial  evidence.    We  are  in

agreement  with  the  conclusion  of  the  High  Court  that

though  the  recovery  was  not  proved,  the  other

circumstantial evidence is sufficient to prove the guilt of

the accused.   

10. We affirm the judgment of the High Court and dismiss

the Appeal.  The Appellant was enlarged on bail by this

Court vide order dated 05.02.2016 on the ground of his

prolonged incarceration for  11 years.   He is  directed to

surrender  before  the  jail  authorities  immediately  to

undergo the remaining part of his sentence, failing which

the  authorities  concerned  are  directed  to  proceed  in

accordance with law.     

       ........................................J         [S. A. BOBDE]

                 ..……................................J

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                                          [L. NAGESWARA RAO]

New Delhi, February 14, 2017

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