Non-Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal  Appeal No  119 of 2010

Md. Younus Ali Tarafdar     .... Appellant(s)

Versus   

The State of West Bengal ….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. The  present  Criminal  Appeal  arises  from  the

judgment  of  the High Court  of  Calcutta  by which  the

conviction of the Appellant under Section 302 read with

Section 34 and Section 201 read with Section 34 of the

Indian Penal Code (hereinafter referred to as ‘the IPC’)

was affirmed.   

2. On  20.03.1984,  a  phone  call  was  received  from

Bhaskar Gupta, PW 6 by Rajarhat Police Station that a

dead body was found in a well inside the garden. The

Investigating  Officer  PW  20,  reached  the  place  of

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occurrence at 6.05 p.m. and saw a body floating in the

well.  The dead body could not be taken out as it was

dark by then.  A First Information Report was registered

and the sketch map of place of incident was prepared.

The body was brought out of the well the next day.   

3. PW 18 Dr.  Santosh  Kumar  Biswas  conducted  the

post-mortem of the body on 21.03.1984.  He found the

following injuries:  

“1. One circular ligature mark on the neck at

the  level  of  hyoid  bone.   The  width  of  the

ligature mark was 2”.  On dissection I found

that  below,  above and beneath  the ligature

mark all the soft tissues were damaged and I

also noticed fracture of hyoid bone.

  2. Two ligature marks on both the wrist joints

of  the deceased.   There was no damage of

soft tissues in this region.  

3.  Two circular  ligature  marks  were seen  in

both the ankle joints of the deceased.”   

According  to  the  Doctor,  the  body  was  partially

decomposed.   The cause of  death  was mentioned as

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Asphyxia  as  a  result  of  injury  No.1  which  was  ante-

mortem and  homicidal  in  nature  which  was  done  by

strangulation.               The Doctor deposed in Court and

stated  that  the  larynx  and  trachea  were  highly

congested and hyoid bone was fractured.

4. During the course of investigation, the apparels on

the body were seized.   The photographs of  the body

were taken and cremation of the body was done as it

was  already  in  a  decomposed  state.   One  Kenaram

Dhara along with his mother appeared at Rajarhat Police

Station on 25.03.1984 and complained that Becharam

Dhara  @ Ashok was missing since 16.03.1984.  When

they were shown the apparels and photographs of the

body which was already buried, they identified that the

body was of Becharam Dhara.   

5. On  information  received  during  the  course  of

investigation, the Appellant was arrested.  Pursuant to

the confession made by the Appellant, an Anglo-Swiss

watch was seized from A.C. Watch Company situated at

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Aswini Nagar, Baguihati.  The case of the prosecution is

that the wrist watch belongs to Kenaram Dhara PW 12

who is the brother of the deceased, Becharam Dhara.

He stated before the Court that he gave his wrist watch

to his brother when he left the house on 15.03.1984.    

6. On completion of  the investigation,  the Appellant

along with three others were charged with committing

the  murder  of  Becharam  Dhara  and  concealing  the

body.   The  trial  court  convicted  the  Appellant  for

offences under  Section 302 read with Section 34 and

Section 201 read with Section 34 of the IPC.  The other

accused were  acquitted as  the trial  court  was  of  the

opinion  that  the  prosecution  could  not  establish  their

guilt.  The Appellant was sentenced to undergo rigorous

imprisonment for life for the offence under Section 302

read with Section 34 and rigorous imprisonment for nine

months for offence under Section 201 read with Section

34  of  the  IPC.  The  appeal  of  the  Appellant  was

dismissed by the High Court and judgment of the trial

court was affirmed.   

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7. On appreciation of the evidence on record, the trial

court  concluded that  there  was sufficient  evidence to

point to the guilt of the Appellant.  The deceased and

the Appellant were friends.  The Appellant used to visit

the house of the deceased.  PW 11, Astomi Dhara, who

was the sister of the deceased, deposed in Court that

the deceased left the house by telling her that he was

going to visit the Appellant.  The evidence of PW 12 who

was  the  brother  of  the  deceased  was  similar  to  the

effect  that  the  deceased,  Becharam  Dhara,  informed

him that he was going to Atghara where the Appellant

resides.  PW 16 Ganga Rani, a relative of the deceased,

deposed that the deceased visited her house at 10.30

a.m. on 15.03.1984.  He left around 2.30 p.m. on that

day  informing  her  that  he  was  going  to  meet  the

Appellant.  According to PW 4 the proprietor of the A.C.

Watch Company, the Appellant gave a watch for repair

on 19.03.1984.  There can be no doubt that the dead

body  recovered  from the  well  was  that  of  Becharam

Dhara as identified by the brother and mother from the

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photographs of the dead body and the apparels worn by

the deceased.  Recovery of the watch belonging to PW

12 which was given to the deceased when he left the

house on 15.03.1984 was relied upon by the trial court

as a strong circumstance to prove involvement of the

Appellant in the crime.  The signature of the Appellant

on the counterfoil taken from the watch shop owner was

not denied by the Appellant.  He merely stated that the

signature  was taken forcibly  by the police  during the

course  of  the  investigation.   On  basis  of  the  said

evidence, the trial court concluded that the Appellant is

guilty  of  committing  the  murder  of  Becharam Dhara.

The  High  Court  upheld  the  conviction  after  re-

appreciating the evidence on record.   

8. There  is  no  direct  evidence  regarding  the

involvement of the Appellant in the crime.  The case of

the prosecution is on basis of circumstantial evidence.

Factors to be taken into account in adjudication of cases

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of  circumstantial  evidence as laid down by this  Court

are1 :

“14. Admittedly,  this  is  a  case  of

circumstantial  evidence.  Factors  to  be  taken

into  account  in  adjudication  of  cases  of

circumstantial evidence laid down by this Court

are:

(1)  the  circumstances  from  which  the

conclusion  of  guilt  is  to  be  drawn should  be

fully established. The circumstances concerned

“must”  or  “should”  and  not  “may  be”

established;

(2)  the  facts  so  established  should  be

consistent only with the hypothesis of the guilt

of the accused, that is to say, they should not

be explainable on any other hypothesis except

that the accused is guilty;

(3)  the  circumstances  should  be  of  a

conclusive nature and tendency;

(4)  they  should  exclude  every  possible

hypothesis except the one to be proved; and

1 (2017) 14 SCC 359

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(5)  there  must  be  a  chain  of  evidence  so

complete  as  not  to  leave  any  reasonable

ground for the conclusion consistent with the

innocence of the accused and must show that

in  all  human  probability  the  act  must  have

been  done  by  the  accused.  (See Sharad

Birdhichand  Sarda v. State  of

Maharashtra [Sharad  Birdhichand

Sarda v. State  of  Maharashtra,  (1984)  4  SCC

116 : 1984 SCC (Cri) 487] , SCC p. 185, para

153; M.G.  Agarwal v. State  of

Maharashtra [M.G.  Agarwal v. State  of

Maharashtra, AIR 1963 SC 200 : (1963) 1 Cri LJ

235] , AIR SC para 18.)”

9. We proceed to examine the matter in light of the

factors mentioned above.  It was contended on behalf of

the Appellant  that  the dead body taken out from the

well was completely mutilated and that the body was

beyond  identification.   The  family  members  of  the

deceased were not shown the body as it was cremated

immediately.  It was contended that the identification of

the body was only on the basis of photographs of the

dead body and the apparels found on the body.  As the

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body was eaten by maggots it cannot be believed that

the  body  could  be  identified  on  the  basis  of  the

photographs shown to the mother and brother of  the

deceased.  We  perused  the  photographs  of  the  dead

body from the original record and reject the submission

made on behalf  of  the Appellant  on  this  count.   The

dead  body  which  was  taken  out  of  the  well  was  not

beyond recognition.  On the other hand, it is reasonably

recognizable.   The  next  submission  relating  to  the

identification  on  the  basis  of  apparels  which  were

recovered from the body is also unsustainable.  Taking

into account the social background of the deceased, his

wardrobe can be taken to be consisting of not too many

clothes.  It cannot be said that the mother and brother

could not have identified the clothes of the deceased.

That apart, from the tag of the tailoring shop found on

the apparels, the tailor – PW 8 was examined and he

deposed  that  the  clothes  were  stitched  for  the

deceased.  We have no doubt in approving the findings

recorded by the trial court and the High Court that the

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dead body taken out of the well was that of Becharam

Dhara and the prosecution has established the same by

leading cogent evidence.   

10. It is necessary to examine the circumstances which

have been relied upon for conviction of the Appellant.

The evidence of PW 11, Astomi Dhara who is sister of

the  deceased,  PW  12   Kenaram,  the  brother  of  the

deceased and PW 16 who is the relative of the deceased

was  relied  upon  by  the  prosecution  to  establish  the

connection  between  the  Appellant  and  the  deceased.

PW  12  deposed  in  Court  that  the  deceased  left  the

house  on  15.03.1984 stating  that  he  was  leaving  for

Atghara where the Appellant resides.  PW 12 gave his

Anglo-Swiss  watch  to  the  deceased.   PW  11  Astomi

Dhara stated in Court that the deceased informed her

that he was going to meet the Appellant.  PW 16 stated

in Court that the deceased visited her house at 10.30

a.m. on 15.03.1984 and left at 2.30 p.m. by informing

her that he will go back to his house after visiting the

Appellant.  After referring to the evidence of the above

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witnesses, it is relevant to mention that in his evidence,

the Investigating Officer said that PW 11 Astomi Dhara

did  not  inform  him  when  her  statement  was  initially

recorded,  that  the  deceased  informed  her  on

15.03.1984  that  he  was  going  to  visit  the  Appellant.

From the cross-examination of PW 20- the Investigative

Officer,  it  can  be  seen  that  he  mentioned  about  the

omission  on  the  part  of  the  PW  12  in  his  initial

statement  regarding  the  watch  belonging  to  PW  12

being taken by the deceased on 15.03.1984.  During the

trial,  PW  12  stated  that  on  19.03.1984  he  and  his

mama-sasur-  Shailendra  Nath  Shil  were  going  to

Baguihati  Bazar by boarding a bus from Jangar More.

The Appellant was in the same bus and on seeing PW 12

and  his  mama-sasur,  the  Appellant  started  trembling

and  alighted  the  bus  one  stop  ahead  of  Baguihati.

During his cross-examination,  the Investigating Officer

accepted that this is an improvement made by PW 12 as

such incidence was not  narrated to  him in  the initial

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statement  made  by  PW 12  during  the  course  of  the

investigation.   

11. The prosecution strongly relied upon the recovery

of  the  watch  from  the  shop  of  PW  4.   The  watch

belonged to PW 12 which was with the deceased when

he left home on 15.03.1984.  PW 4 Amar Das who was

the owner of the watch shop deposed in Court that the

Appellant gave a watch for repairing.  He was shown the

receipt  given to the Appellant  which was seized from

the custody of the Appellant.  The receipt was issued on

19.03.1984  and  the  watch  had  to  be  delivered  on

27.03.1984.   The  counterfoil  of  the  receipt  was

identified by PW 4 which was marked as exhibit 3 and

the signature of the Appellant on the counterfoil was not

denied by him.  

12. The conviction  of  the  Appellant  is  mainly  on the

basis of the recovery of the watch which was with the

deceased pursuant to the confessional statement of the

Appellant.   According  to  the  prosecution,  the  receipt

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issued by PW 4,              the owner of the watch shop

was  seized  from  the  Appellant  during  the  course  of

investigation. His confessional statement was recorded

pursuant  to  which  the  receipt  was  seized  from  his

house.  Thereafter, the watch was seized from the shop

of PW 4 along with counterfoil of the receipt on which

the signature of appellant was found.  The contention of

the defense is that the Appellant was coerced by the

police into signing the counterfoil of the receipt. It was

also argued that there the receipt was not seized from

the house of the Appellant.  

 13. PW 12 did not state before the Investigating Officer

that he gave his watch to the deceased when he left the

house  on  15.03.1984.   It  is  clear  from  the  cross-

examination  of  the  Investigating  Officer  that  this

statement of PW 12 was an improvement.  The manner

in  which  the  confessional  statement  of  the  Appellant

was recorded and the seizure of the receipt of the watch

was made is not free from doubt.   

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14. On  an  overall  consideration  of  the  evidence  on

record, especially the evidence of PWs 11, 12 and 16

would not lead us to believe that the Appellant and the

deceased were last seen together.  The evidence of PWs

11 and 16 only shows that they were informed by the

deceased  that  he  was  going  to  visit  the  Appellant.

There  is  no  evidence  on  record  to  show  that  the

Appellant was last seen with the deceased.  Section 106

of the Indian Evidence Act, 1872 is not applicable to the

facts of the case.  It cannot be said that the Appellant

failed to explain as to what happened after they were

last seen together especially when there is no evidence

to show that they were last seen together.   

15. A close scrutiny  of  the material  on record  would

disclose  that  the  circumstances  relied  upon  by  the

prosecution to prove the guilt of the Appellant were not

complete and do not lead to the conclusion that in all

human  probability  the  murder  must  have  been

committed by the Appellant.  

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16. For  the  aforementioned  reasons,  the  Appeal  is

allowed and the judgment of the High Court is set aside.

The Appellant is acquitted of the charges under Section

302 read  with  Section  34  and Section  201 read  with

Section 34 of the IPC.            

                  ...............................J.                                         [L. NAGESWARA RAO]

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

                                                    [DEEPAK GUPTA]

New Delhi, February 20, 2020.

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