TMI Blog2003 (8) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... herein preferred appeals before the High Court at Calcutta while State preferred a separate appeal against the acquittal of Deepak Rajak. A Division Bench of the High Court as per it judgment dated 24.5.2001 dismissed the appeal of the appeals while it allowed the State appeal, and convicted Deepak Rajak also, for offences for which these appellants were sentenced. 2. Against the said judgment of the High Court the appellants have preferred the above noted criminal appeals. Deepak Rajak who was convicted by the judgment of the High Court did prefer and SLP before this Court but since he did not surrender, as required under the Supreme Court Rules, his appeals came to be dismissed for default. Therefore it is only accused Nos. 1, 2, 4 and 5 who are before us in these appeals. 3. Brief facts necessary for disposal of these appeals are as follows: 4. One of the deceased Pritam Chakraborty who was aged about 16-17 years was a student of Vivekananda Institution, Howrah. He was staying with his widowed mother Purnima Chakraborty (PW-6) at Mouza 5/2/1, Katapukur 3rd bylane, Kadamtala, Howrah. The second deceased Rudra Parui who was of the same age as Pritam, was his classmate and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antra Police Station and gave a verbal information about the missing of the boys to the Police Officer there. It is further stated that PWs.1, 9 and others went to the Howrah Station and searched for them on Howrah Bridge and even told the personnel of Government Railway Police Station (G.R.P.S.) about the missing boys and also gave them the description of the boys, PW-1, PW-9 and others continued the search for the boys even on 2.12.1998 morning and being unsuccessful in their efforts, went to Bantra Police Station and lodged a missing Diary. Thereafter, they went to their house. It is the case of the prosecution that on 2.12.1998 at about 10-11 a.m. Debasish Sarkar (PW-2) and Arun Polley (PW-3) came to the house of PW-9 and informed him that they had seen Pritam and Rudra in the company of accused near the Howrah Bridge on the night of 1.12.1998. After listening to PWs.2 and 3, PW-9 with his relatives went to PW-1's house and told him about the information he got from PWs.2 and 3, According to PW-1, after getting the information about PWs.2 and 3, he along with PW-9 and others searched for the boys and unable to trace them he went to Bantra P.S. and again reminded them of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-15 further says that out of curiosity he asked the tall boy what would happen on that day to which the tall boy replied that the matter related to his friends Pritam and Mousam. AT that point of time this tall boy also made a gesture of moving his right hand horizontally indicating the nature of act. On further investigation the Police came to know that PWs.23 and 24 who were Duty Constables on the Howrah Bridge had come to known from some passersby that 2 persons; either a boy and a girl or 2 boys had jumped into the Ganges from the bride. this was at about 9 or 9.05 p.m. When these Constables proceeded to the place of incident they noticed about 200-300 persons there therefore PW-23 sent PW-25 to the Police Station to inform the duty Officer and he started clearing the crowd. This witness also witnessed a cycle near Post No. 12 of Howrah Bridge and therefore he took possession of the same. This witness also says when he was there, 2 Constables from Post No. 12 visited the place of incident. It is based on these facts the appellants were charged and found guilty of the offences, as stated above. 7. Mr. P.K. Ghosh, learned senior counsel appearing for the appellants, submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upported by her neighbour PW-7. He also pointed out that the contents of the letter recovered from the house of Vikky (A-5) showed the diabolical plan of Mousam (A-1) to eliminate Pritam with a view to prevent him from being a thorn in his love life which fact is further supported by the evidence of PW-15 who overhead the conversation of Mousam with his tall friend who was subsequently identified as Vikky (A-5). He also argued that none of the witnesses who have supported the prosecution had any motive whatsoever to falsely implicate these accused persons. He also pointed out the two courts below after considering the material on record having come to the concurrent finding of guilt of the appellants there should be no reason why this Court should interfere with such a finding of the courts below. 9. In the course of his arguments, learned counsel for the appellants have also submitted that the courts below were more influenced by the poignant nature of the prosecution case than the legal nature of the evidence led by the prosecution. It is in this context, he relied on a judgment of this Court in the case of Hanumant Govind Nargundkar and Anr. v. State of M.P. 1953CriLJ129 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d had asked the deceased to meet him at the Howrah Bridge later in the night at about 9 p.m. as spoken by PW-1; (ii) Appellant Mousam was angry with Pritam because he was also friendly with Reshma Gupta which was considered as a hurdle by the said accused in the way of his love affair with said Reshma, as spoken to by PWs.1, 6 and 7; (iii) PW-15 had overhead on 1.12.1998 the plan of A-1 and A-5 to eliminate Pritam; (iv) Deceased and the accused persons were seen together at the power-house in the late evening of 1.12.1998 by PWs.2 and 3; (v) Accused were seen having an altercation with 2 unknown boys at about 9 p.m. on the Howrah Bridge on 1.12.1998 by PW-13; (vi) PWs-22 and 25 Constables came to known that either 2 boys or a boy and a girl had jumped from the Howrah Bridge into the river at about 9 p.m. on 1.12.1998 and a cycle belonging to deceased Rudra was recovered near about that place; (vii) The deceased were missing since 1.12.1998 and their bodies were recovered on 4th and 7th December, 1998 and the medical reports showed that they had met with homicidal death; (viii) A letter allegedly written by A-1 Mousam was recovered fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itam told him that since he was going in the company of Rudra (the other deceased) there need be no apprehension. This part of the evidence if proved would establish that A-1 had called Pritam to meet him at the Howrah Bridge which circumstance will be a relevant circumstance in the chain of prosecution case. Therefore, we will now examine whether this part of PW-1's evidence can be accepted as has been done by the two courts below. In the night of 1.12.1998, PW-1 came to known at about 8.45 p.m. from his sister PW-6 that Pritam had not come home from the tutorial class as was the usual practice. At this point of time this witness instead of telling his sister that Pritam had gone to meet A-1 at Howrah Bridge, told her that he may be late because Pritam might have gone to get some papers xeroxed. NO explanation is given by this witness while in witness box why he gave such incorrect excuse to his sister. It is then seen that this witness after waiting for some more time, went in search of Pritam. One the way he met PW-9 father of Rudra with some local people, PW-9 told PW-1 even his son Rudra who accompanied Pritam had not come back therefore both of them went to Bantra Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. As noted above, there is absolutely no explanation who he did not inform anyone between 1.12.1998 and 3.12.1998 about the receipt of telephone call. This omission coupled with the fact that the investigating agency has not made any efforts to verify whether any such telephone call was received by PW-1 on his telephone on 1.12.1998 makes us think that this part of PW-1's evidence cannot be relied upon to link the other evidence led by the prosecution to prove its case against the accused persons. Apart from the receipt of telephone call in the evidence of PW-1, nothing material connecting the accused to the murder is found. He of course says that the deceased were missing from the night of 1.12.1998 and he joined PW-9 and others in search of them and PW-9 told him that PWs.2 and 3 had seen the deceased in the company of the accused but this fact he did not mention in his complaint Ex. P-1. Even then the courts below have chosen to accept the evidence of PW-1 in regard to the receipt of telephone call on its face value without seeking even minimal corroboration. Taking into consideration the fact that PW-1 had repeated opportunities of disclosing the receipt of telephone call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile on 1st and 2nd December, 1998 and that PWs.2 and 3 told him that they had seen the missing boys in the company of the accused on 1.12.1998. Suffice it to state here that this evidence of PW-9 could, at the most, corroborate the prosecution case in regard to the links in the circumstantial chain provided such links have been independently established. 18. Prosecution to establish its case connected with motive has relied on the evidence of PW-15 Dibyendu Shee. His evidence in our opinion makes a very interesting reading tough devoid of any merit. He claims to be a cricketer playing in Tikiapara Railway quarters' ground. He is also a student of Vivekananda Institution where the deceased were studying. On 1.12.1998 afternoon after the game he was going out of the cricket ground on his cycle when he found accused Mousam who he knew, going ahead of him in the company of a tall boy whose identify obviously this witness did not know at that time. This witness then says that he overheard a conversation between accused Mousam and the tall boy to the effect together it could happen on that day . So this witness got curious and asked the tall boy what will happen on that day, to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused persons because they use to play cricket in Dumurjola ground which place this witness used to visit to watch cricket matches, though they were not of the same locality as that of this witness. Both these witnesses PWs.2 and 3 state that on 1.12.1998 at about 8.30 p.m. they were purchasing sweetmeat at a stall opposite the power-house at Kadamtala, at that time PW-2 saw accused persons going towards Howrah Bridge with Rudra and he asked Rudra where he was going in the night, to which Rudra supposedly replied that he was going with his friend towards Howrah. PW-2 also says that he identified the accused persons because he had seen them play cricket. In his evidence he further states on 2.12.1998 he informed PW-9 and some other people of the locality that on 1.12.1998 at 8.30 p.m. he had seen the deceased, the accused and some others proceeding towards Howrah. This witness was cross examined at length suggesting among other things that they could not have been present at that place at that time. Defence also challenged the identification of the accused by this witness. He was also pointedly cross examined in regard to the location of the sweetmeat stall with reference to the ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the I.O. that this witness had not even stated in his statement to the Police that he had known the accused persons from before. Therefore the evidence of these witnesses in the court in regard to their presence at the sweetmeat stall becomes an improvement. In regard to PW-3, their is also an improvement in regard to the identification of accused by him. Thus, in the background of the fact that they are chance witnesses, in our opinion we think it not safe to reply on the evidence of these witnesses because their names are not mentioned in the FIR, they did not tell the I.O. about their presence at the sweetmeat stall and PW-3 improved his statement in regard to the identification of the accused. The courts below while accepting the evidence of all these witnesses rejected the plea of defence to discard their evidence solely because they were independent witnesses. The High Court also observed that the omission of their names in the FIR is not fatal because all details need not be mentioned in the FIR. Thus certain glaring contradictions/omissions in the evidence of PWs.2 and 3 and absence of their names in the FIR has been very lightly discarded by the courts below. 21. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine his evidence we notice the timing of his presence on the Howrah Bridge is too far-fetched a coincidence to accept coupled with the fact that his brother was involved in a pending murder case and of all the witnesses, this witness volunteered to go to the Police Station after 4 days to inform them of what he noticed on 1.12.1998 would make his evidence highly artificial for acceptance by any reasonable person. 23. In such circumstances we think the High Court ought to have been more cautions in accepting the evidence of this witness. 24. For all the above reasons, the evidence of PWs.2, 3, 13 and 15 to which we have referred to hereinabove in our opinion does not inspire confidence in us so as to accept the same for the purpose of basing a conviction. 25. The prosecution then relies on the evidence of PWs.22 and 25 to establish the fact that on 1.12.1998 at about 9 p.m. an incident had taken place on the Howrah Bridge in which 2 youngsters allegedly jumped into the river. These two witnesses were the Beat Constables on duty at the Howrah Bridge on that day. PW-22 in his evidence states on 1.12.1998 he was posted at North Port Police Station as a Constable and he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asional supervision by the higher officers. It is also clear from the evidence of this witness that at the time of the alleged incident, there were hundreds of people present on the bridge. In this background, if really an incident as stated by the prosecution has taken place near Goomty No. 12 which is hardly 20 to 30 cubits from the place of the incident, could these accused persons have escaped the said place after the murder of the deceased without being either noticed or chased by the Police at least ? The incident as described by the prosecution shows that 5 accused persons assaulted at least one of the deceased and physically threw both of them over the bridge. If it is really true, it does not appeal to ordinary commonsense that neither the Police nor anyone out of the onlookers in the crowd either tried to prevent the incident in question or prevent the accused from fleeing the place of incident or at least would not have raised an alarm which would have attracted the otherwise complacent policemen on duty on the bridge. These are not circumstances which could be easily discarded on the specious plea that of late independent witnesses do not get involved in preventing crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses for the recovery of the exercise book shows that they have not really seen the place from where this book was recovered by the I.O.. From their evidence it is noticed that in the case of the book the I.O. went inside the house of A-1 and came out with the book. Admittedly, these Panch witnesses have not seen where exactly from the house this book was recovered. They have only spoken about the fact that the I.O. came out of the house with the book and told them that he recovered it from the room of Mousam. A-1. Almost similar is the evidence of PWs.35 and 36 who were the Panch witnesses for the recovery of the letter from the house of Vikky, A-5. These witnesses have also not seen the actual recovery of the letter. They had only seen the I.O. who told them that the letter was recovered from the house of A-5 and signed the seizure memo. In our opinion this evidence is insufficient to prove the recovery. The very purpose of requiring a Panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found it is absolutely necessary for these Panch witnesses to see and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 29. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. 30. We are also aware that this Court does not disturb the concurrent findings of the courts below if the same are based on legal evidence merely because another view is possible. Thus, keeping in mind the caution expressed by Baron Alderson (supra) as also the need to respect the concurrent findings of two courts below, we have assessed the evidence in this case very carefully, but in spite of the same we are unable to concur with the findings of the courts below. In our opinion, both the courts below have departed from the rule of prudence while appreciating the evidence led by the prosecution. 31. On the above basis, we notice that : (a) the prosecution has not satisfactorily established the receipt of telephone call on 1.12.1998 from Mousam to deceased Pritam as spoken to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
