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2006 DIGILAW 492 (CAL)

JALIL ALL MOLLAH v. STATE OF WEST BENGAL

2006-08-08

AMIT TALUKDAR, DIPANKAR DATTA

body2006
DIPANKAR DATTA, J. ( 1 ) THE appellant has been convicted under section 302 of the Indian Penal code for murdering Mrs. Govinda Monga (hereinafter referred to as "the victim") by the learned Additional Sessions Judge, 14th Court, Alipore, South 24-Parganas by his judgment dated 4th July, 2000 and consequently sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 3,000/- only, in default to suffer further rigorous imprisonment for three months. Feeling aggrieved thereby, the present appeal has been filed by him. ( 2 ) A written statement was made by Mrs. Surinderjit Kaur Lamba (P. W. 16)on 12. 3. 1994 (which was treated as formal F. I. R.) alleging that on 12. 3. 1994 at about 14. 40 hours, one Mala (P. W. 5), maid-servant of Mr. Ranjit Singh monga (P. W. 15) of Flat No. 3g, Ajanta Apartments, 10, Gurusaday Dutta road, Kolkata - 700019, had informed P. W. 16, a resident of Flat No. 3h of the same apartments that the victim, her "mem Saheb", was lying in a pool of blood in front of the kitchen of her flat; that hearing such news, the p. W. 16 accompanied by P. W. 5 had reached the interior of Flat No. 3g, and found the victim lying in front of the kitchen; that P. W. 16 rang up Mrs. Tavinder Sethi (P. W. 14), a relative of the P. W. 15 whose telephone number was known to her to inform the P. W. 15 about the incident; that on seeing mr. Gour Ghosh (P. W. ll), a flat owner of the same Apartments, she told him about the incident and requested him to come immediately pursuant whereto he rushed in front of the flat of the victim and thereafter informed the police; that the police arrived within half an hour and removed the victim and admitted her to the hospital at about 15. 50 hours; that she came to learn from her son, Mr. Swaran Pal Singh Lamba (P. W. 4) that the victim had expired in P. G Hospital; and that she believed that the victim had been murdered by an unknown person. ( 3 ) BASED on the aforesaid F. I. R. , Karaya P. S. Case No. 68 of 12. 3. 1994 was registered and investigation was conducted initially by Mr. Swaran Pal Singh Lamba (P. W. 4) that the victim had expired in P. G Hospital; and that she believed that the victim had been murdered by an unknown person. ( 3 ) BASED on the aforesaid F. I. R. , Karaya P. S. Case No. 68 of 12. 3. 1994 was registered and investigation was conducted initially by Mr. Sabyasachi ghosh (E. W. 21) attached to Karaya Police Station as Sub-inspector of Police. P. W. 21 was in-charge of investigation from 12. 3. 1994 to 24. 9. 1994. Thereafter, on and from 24. 9. 1994, Mr. Prabir Kumar Chatterjee (P. W. 22), inspector of Police attached to Detective Department, Lalbazar, was entrusted with the investigation. On 25. 9. 1994 the appellant was arrested, and on the following day was produced in the Court of the learned Sub-Divisional Judicial Magistrate, Alipore, South 24-Parganas. It appears that the appellant in course of investigation had made a statement before the p. W. 22 leading to recovery of a cloth bag containing the weapon of offence and one shirt. It also appears that on the basis of another statement made by the appellant, a gold chain with a locket was recovered from a jewellery shop on Chowringhee Road on 8. 9. 1994. Test Identification Parade was conducted on 3. 11. 94 where the P. W. s 4 and 17 identified the appellant as the person who had been to Flat No. 3g on 12. 3. 94, whereas P. W. s 5 and 7 failed to identify him. The appellant, thereafter, was chargesheeted and ultimately charge was framed against him under sections 302 and 201 of the Indian Penal Code. The appellant pleaded not guilty to the charges and was thereafter tried. ( 4 ) IN order to prove its case the prosecution examined as many as 22 witnesses and exhibited a number of documents and articles. The appellant, however, did not produce any witness in his defence. ( 5 ) UPON consideration of the evidence and the materials on record, the learned Judge returned the finding that based on circumstantial evidence the prosecution was able to prove that the appellant was guilty of the offence under section 302 of the Indian Penal Code. However, the charge under section 201 was held to be not proved. As a consequence, sentence as noted above was awarded. ( 6 ) MR. However, the charge under section 201 was held to be not proved. As a consequence, sentence as noted above was awarded. ( 6 ) MR. Pradip Roy, learned Counsel representing the appellant vehemently urged before this Court that the prosecution had utterly failed to prove its case. ( 7 ) FIRSTLY, it was submitted that the presence of the appellant at the place of occurrence was not proved. Learned Counsel placed before the Court the depositions of the witnesses on this point and sought to urge that there were material discrepancies as to whether the appellant had at all been to flat No. 3g, and based thereon no finding could have been validly returned that the appellant was present at the place of occurrence. He stressed that p. W. 5's failure to identify the appellant as the person who visited Flat No. 3g when she opened the door is of great significance. Presence of the appellant not having been proved, he urged that the conviction is absolutely unsustainable in law. ( 8 ) SECONDLY, it was submitted that recovery of the offending weapon was made in such circumstances which cannot be believed by a person of reasonable prudence. In the present case, the appellant was arrested more than six months after the alleged murder of the victim and the recovery of the offending weapon and the gold chain were effected little before expiry of seven months from the alleged incident. It was highly improbable that for seven months, the boulders under which the cloth bag had been hidden allegedly by the appellant after the murder, would remain as it is without being removed by anyone. The place from where the cloth bag was recovered was a public thoroughfare easily accessible by other people and not from a place which was in the exclusive possession of the appellant and as such it was submitted that no reliance ought to be placed on such recovery. It was further submitted that the fact of intervening monsoon between the date of alleged incident and the date of recovery cannot also be lost sight of. It was further submitted that the fact of intervening monsoon between the date of alleged incident and the date of recovery cannot also be lost sight of. Also, being a resident of Diamond Harbour, it would be beyond comprehension that the appellant after committing murder, if at all, would not take it back home or elsewhere and destroy it but instead would keep it under boulders, at his risk and peril, on Gurusaday Road at a place which is not even half a kilometer away from the place of occurrence. Over and above these, the seizure list witnesses could not be produced in Court. All these taken together, render the prosecution case doubtful and conviction based thereon is bad in law. In this regard he relied on the decision of the Apex Court reported in 2004 SCC (Cri) 958, Maruti Rama Naik vs. State of Maharashtra (para 7 ). ( 9 ) THIRDLY, it is submitted that the fact of recovery of gold chain with locket from the jewellery shop is also shrouded with obscurity. Learned counsel urges that in this case the owner of the jewellery shop was not examined. It would be found from the evidence on record that P. W. 6, the brother of the owner, did not attend the shop regularly. Strangely, the P. W. 6 appears to have been present in the shop only on two occasions, i. e. on 16. 3. 1994 when the appellant went to the shop with the gold chain and on 8. 10. 1994 when the P. W. 22 took the appellant along with him for recovery of gold chain. Having regard to the fact that no entry was made in the books of accounts of the shop on 16. 3. 1994 for Rs. 1200/- which was allegedly given to the appellant by the P. W. 6, that a plain white paper was used acknowledging the fact of pawning the gold chain instead of any letterhead or paper having the inscription of the name of the jewellery shop, that the jewellery shop although being quite big was not engaged in the business of mortgage of ornaments and that the reason for P. W. 6's presence in the shop on 8. 10. 10. 1994 was unexplained, the entire incident of recovery of gold chain was one engineered by the Investigating Officer (P. W. 22) for implicating the appellant, and consequently no reliance ought to be placed on such, recovery. ( 10 ) LASTLY, it was submitted that the prosecution had utterly failed to ascribe any motive for the murder. The prosecution version that the Mongas owed some money to the appellant on account of painting and other work performed by him in their flat which the appellant failed to recover despite several attempts leading to his committing the murder of the victim and escaping with her gold chain, could hardly be believed. It was submitted that it is on record that the Mongas were quite rich and apart from the gold chain, no other valuables were missing from the flat. If the appellant had any intention of stealing valuables from the flat, he would not rest content by stealing only a gold chain. That apart, the appellant was a contractor under whom 5/6 people worked. It is thus preposterous that only for a gold chain, he would commit murder. Learned Counsel submitted that in case an offence is sought to be proved by circumstantial evidence, motive is of great significance and in the facts of the particular case it could hardly be contended with conviction that the motive for the murder was proved. ( 11 ) ON the basis of the above, learned Counsel contended that all the circumstances were not proved and the findings recorded by the learned judge were absolutely erroneous. Consequently, the sentence is absolutely unwarranted. He accordingly prayed that the conviction and the sentence be set aside and the appellant be acquitted. ( 12 ) MR. Sandipan Ganguly, learned Advocate appearing for the State contended that the prosecution had been successful in driving home the charge framed against the appellant. He submitted that the evidence of p. W. s 3, 4, 5, 6, 15, 17 and 22 are relevant which conclusively prove the guilt of the appellant. He submitted that the prosecution was successful in proving the circumstances that the appellant was known to the victim; that there was demand by the appellant for money; that there was a disclosure to the P. W. 5 by the victim at about 10. 30 a. m. that the painter would come; that the appellant entered the complex at about 10. 30 a. m. that the painter would come; that the appellant entered the complex at about 10. 30/10. 45 a. m. (P. W. 17); that the appellant was present in the flat at 11. 00 a. m. (P. W. 4); that the bag containing the offending weapon and the shirt which was being carried by the appellant (as noticed by P. W. 17) was recovered by P. W. 22 on being led by the appellant; and that the gold chain was also recovered by the P. W. 22 from the jewellery shop to which he was taken by the appellant. The cumulative effect of proof of all the above circumstances, provide the link in the chain of evidence which unhesitatingly point towards the guilt of the appellant. It was submitted that the decision of the learned Judge impugned in the appeal does not suffer from any infirmity and as such ought to be upheld. ( 13 ) IN support of his submissions, Mr. It was submitted that the decision of the learned Judge impugned in the appeal does not suffer from any infirmity and as such ought to be upheld. ( 13 ) IN support of his submissions, Mr. Ganguly relied on the following decisions : (A) 1997 SCC (Cri) 799, Mukund vs. State of M. P. (para 9); (B) 1995 SCC (Cri) 552, Gulab Chand vs. State of M. P. (para 4); for the proposition that if there be recovery of stolen articles from the possession of the accused, it can be presumed that the person in whose possession stolen articles were found committed the offence; (C) 1979 SCC (Cri) 56, Modan Singh vs. State of Rajasthan (para 9); for the proposition that evidence as to recovery need not be rejected even if seizure witnesses do not support the prosecution version; (D) 2002 SCC (Cri ) 897, Jayawant Dattatraya Suryarao vs. State of maharashtra (para 57) for the proposition that where the evidence of witness is cogent, consistent and without motive, it cannot be rejected merely on the ground that the witness having seen the accused for a few minutes, it would be difficult for him to identify the accused; (E) 2003 SCC (Cri) 1362, Thaman Kumar vs. State of Union Territory of chandigarh (para 18); (F) 2003 SCC (Cri) 23, Sardul Singh vs. State of Haryana (para 9); (G) 2003 SCC (Cri) 382, Sahadevan vs. State (para 24); for the proposition that if circumstances relied upon by the prosecution are proved beyond doubt, then absence of motive would not hamper conviction; (H) 2003 SCC (Cri) 32, Gangadhar Behera vs. State of Orissa (para 17); for the proposition that benefit of doubt cannot be claimed on the basis of hypothetical propositions or imaginative doubts; (I) 2005 SCC (Cri) 1938 , A N. Venkatesh vs. State of Karnataka (para 7)for the proposition that even if the disclosure statement is held to be not admissible under section 27 of the Evidence Act, still it is relevant under section 8 thereof. ( 14 ) SINCE there was no direct evidence regarding the murder of the victim, the prosecution relied on circumstantial evidence to prove its case. ( 14 ) SINCE there was no direct evidence regarding the murder of the victim, the prosecution relied on circumstantial evidence to prove its case. ( 15 ) BEFORE delving deep into the contentious issues emanating from the present case, this Court reminds itself of the duty of Court while appreciating circumstantial evidence as laid down in the decision of the Apex Court reported in AIR 1952 SC 343 , Hanumant Govind Nargundkar vs. State of madhya Pradesh, which is to the following effect:"it is well to remember that in cases where the 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, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused". ( 16 ) KEEPING in mind the above dictum, this Court proceeds to consider the merits of the case for deciding the appeal. ( 17 ) IN the opinion of this Court, the prosecution in the present case was broadly required to prove four circumstances, viz 1) presence of the appellant at the place of occurrence; 2) recovery of the cloth bag containing the weapon of offence and shirt; 3) recovery of gold-chain with locket of the victim from the jewellery shop; and 4) identification of the appellant. It is for this Court to examine as to whether these four circumstances have been conclusively proved or not and if proved, whether the chain of evidence is so linked and/ or connected to one another that it does not admit of any conclusion that the appellant is innocent but unerringly points at the guilt of the appellant. It is for this Court to examine as to whether these four circumstances have been conclusively proved or not and if proved, whether the chain of evidence is so linked and/ or connected to one another that it does not admit of any conclusion that the appellant is innocent but unerringly points at the guilt of the appellant. ( 18 ) AT this stage, it would be profitable to note the versions of some of the prosecution witnesses on the circumstances noted in the preceding paragraph, which would be relevant for the purpose of adjudication of the present appeal and the same are as follows: presence of the appellant at the place of occurrence p. W. 4 (neighbour) - This witness is the occupant of Flat No. 3h. He saw the victim for the last time at about 11. 00 a. m. on 12. 3. 1994. The victim was standing" near the kitchen door of her flat when the witness was leaving his flat for office. The entrance door of Flat No. 3g was open at the time when he saw the victim standing near the kitchen. He saw the victim talking with one person whose complexion was dark, was aged about 26 years and had a slim figure. The person was holding a bag in his hand. The witness had seen the person before as he used to paint Flat no. 3g for above 3/4 consecutive days about a year back from the date of incident. He had been to Presidency Jail to identify the person and had, in fact, identified that person during T. I. Parade. The person identified in the T. I. parade was also identified in Court, being the appellant. In cross-examination, the witness stated that on the fateful day while locking the door he saw the side profile of the person who was talking to the victim. While crossing the front-door of the flat of the victim, he saw that person inside the entrance door of the flat of the victim, who was standing near the kitchen and having conversation with that person. He had been to the Presidency Jail for identification of the appellant, upon receipt of a notice on his own accord without being pressurized by the police. P. W. 5 (Maid-servant) - This witness had been engaged by the victim a year back from the date of the incident. He had been to the Presidency Jail for identification of the appellant, upon receipt of a notice on his own accord without being pressurized by the police. P. W. 5 (Maid-servant) - This witness had been engaged by the victim a year back from the date of the incident. She attended the flat of the victim in two sessions, firstly from 7 a. m. till 10. 30 a. m. and again from 2. 30 p. m. to 4. 30 p. m. On her return to the flat of the victim on 12. 3. 1994 at about 2. 30 p. m. , she found the entrance door of the flat to be in open stage and found the victim lying on the floor in front of the kitchen in a pool of blood. Being frightened she called on P. W. 16, the resident of Flat no. 3h. On the fateful day she had left the flat of the victim at about 10. 30 a. m. when the victim was alive. It was about 10. 15 a. m. that one person came to the flat of the victim. The witness had responded to the call on the bell on being ordered by the victim. The said person told the witness to call the victim whereupon she noticed a conversation between the victim and the said person but did not listen to the conversation that took place just in front of the entrance door of the flat. When the witness left the flat, the victim was alone. The witness did not see the said person at the time she left the flat. The said person who had come to the victim was a young man of slim figure and had a black complexion. The witness did not notice the wearing apparel of that person. While she was leaving the flat at about 10. 30 a. m. , the victim had told her that the painter had come to her flat and that she had a conversation with the painter regarding painting of her verandah and that it would be convenient if the witness cleans the floor after painting. The witness had not seen that person before. In cross-examination, the witness stated that she had raised hue and cry after she observed the victim lying in a pool of blood. The witness had not seen that person before. In cross-examination, the witness stated that she had raised hue and cry after she observed the victim lying in a pool of blood. The person with whom the victim had conversation stood just inside the entrance door of the flat. The witness had been to the Presidency Jail on one occasion to identify that person but could not identify the appellant to be the person who had visited the flat of the victim on the fateful day. She could not also identify the appellant in Court. P. W. 7 - This witness was the lift-man of the Apartments who had duty from 6 a. m. to 2 p. m. on 12. 3. 1994. In between 11. 30 a. m. and 12 noon, he had seen one person coming from the side of Flat No. s 3g and 8h and saw him getting down by the staircase. The witness observed this person from the glass of the lift. The person was wearing a vest and a full pant and was aged about 25/30 years. Due to lapse of time, he was not in a position to identify that person. P. W. 17 - This witness was the Durwan who was performing his duty at the gate of the complex. Generally, he interrogated the new-comers who intended to get entrance into the complex. He had heard about the murder of the victim at about 3 p. m. on 12. 3. 1994. One painter mistri had visited the house of the victim on the date of occurrence at about 10. 30 a. m. to 10. 45 a. m. The painter was interrogated by him while he was trying to enter into the complex who disclosed that he used to serve as painter in the flat of the victim. The painter had a thin physique and black complexion. The witness had noticed the painter to come to the complex on one/two occasions previously. The painter was wearing a white shirt and blue trouser. He was holding one dirty white colour bag in his hand while getting entry into the complex. The witness saw the painter to go out of the complex at about 11. 30 a. m. on that date when he was wearing a vest and a trouser. The painter was wearing a white shirt and blue trouser. He was holding one dirty white colour bag in his hand while getting entry into the complex. The witness saw the painter to go out of the complex at about 11. 30 a. m. on that date when he was wearing a vest and a trouser. The witness had been to the Court at Alipore where he had identified the painter i. e. the appellant over there. In cross-examination this witness stated that there were six durwans including him in the Annexe building where the victim used to live. However, he could not recollect the names of co-durwans. Immediately after stating that the durwans generally verified and checked the person of the outsiders entering the complex, he stated that the durwans do not check the person of the outsiders as well as the articles carried by them while entering the complex. He had challenged the painter having a thin physique and black complexion on the date of occurrence while he was entering into the building but had not checked the bag, which was held by the said painter. The length of the bag of the painter was about 1 1/2 ft. and the width 1 ft. While the painter was coming out of the building, he did not check it. It did not raise any suspicion in his mind as to why the painter was getting out wearing a vest and trouser and not the shirt. He found no blood mark either on the vest or on the trouser as well as the bag which he was holding at the time of his exit. The witness had seen the painter about a year back from 12. 3. 1994 and it was only once, prior to 12. 3. 1994. He denied the suggestion that he did not see the painter to serve as a painter in the flat of the victim on 2/3 previous occasions. Recovery of gold-chain with locket : p. W. 6 - This witness called Lalu Das looked after the goldsmith business of his elder brother, Nirod Kumar Das at 68, Chowringhee Road, Kolkata-700 020. The appellant had come to the witness on 16. 3. 1994 and told him that his family member having been admitted in the hospital, he was in need of money. The appellant had come to the witness on 16. 3. 1994 and told him that his family member having been admitted in the hospital, he was in need of money. He handed over to the witness one gold-chain having a pendant and expressed his predicament. The appellant was weeping. The witness gave Rs. 1200/- to the appellant in lieu of the gold-chain. The appellant told him that he would take back the gold-chain on the following day after refunding the money that was lent. Ext. 5 being a slip which was written by the witness carried the signature of the witness (Ext. 5/1) as also the signature of the appellant (Ext. 5/2) on the front and the signature of the appellant on the backside of the slip which was put by him on 8. 10. 1994 (Ext. 5/3 ). The police officer had brought the appellant to his shop with handcuff and by putting one rope on his waist on 8. 10. 1994. On interrogation made by the police officer as to whether the witness had kept with him the gold-chain with the pendant, he had replied in the affirmative and had brought out the gold-chain and the pendant and produced the same before the police officer from a casket in which it was kept (Mat Ext. VII ). Seizure list was prepared on which he signed (Ext. 6/1 ). An employee of the shop, viz. Sital Das also signed on the seizure list (Ext. 6/2 ). The gold-chain and the pendant which were given to the witness by the appellant bore the inscription 'g. M. '. He had handed over the slip in original to the appellant and had retained the carbon copy of the said slip. He identified the appellant who was present in court. In cross-examination, this witness stated that his elder brother was the proprietor of the jewellery shop. This witness was not a partner in the business. He attended the jewellery shop on 16. 3. 1994 as his elder brother was lying ill on that date. No mortgage license for keeping the mortgaged articles was in existence, business of keeping ornaments and lending money to customers was not carried on from the shop. No entry had been made in the daily accounts book for lending Rs. 1200/- to the appellant on 16. 3. 1994. 3. 1994 as his elder brother was lying ill on that date. No mortgage license for keeping the mortgaged articles was in existence, business of keeping ornaments and lending money to customers was not carried on from the shop. No entry had been made in the daily accounts book for lending Rs. 1200/- to the appellant on 16. 3. 1994. No paper and document could be shown proving that cash money of Rs. 1200/- was lent to the appellant on 16. 3. 1994 save and except the papers produced in Court. He did not hand over any other document/paper to the police showing that he attended the shop on 16. 3. 1994. He saw the appellant for the first time on 16. 3. 1994 and for the second time in police custody on 8. 10. 1994, and on no other occasion. There was no date before signature of the appellant on Ext. 5. He did not get any salary from his elder brother for attending his shop occasionally. Then he volunteered to say that he did not attend the jewellery shop regularly. He admitted that signature of the employee, Sital Das was not there on the part of the slip (Ext. 5) which was written on 16. 3. 1994. The jewellery shop of his brother was a big one and his brother paid income-tax and sales tax. Similar type of gold-chain could be manufactured by any jewellery shop including the locket. He admitted that the slip (Ext. 5) was not a printed paper of the jewellery shop but was written on a white paper. Regarding investigation p. W. 21 - This witness was the first Investigating Officer. After getting telephonic information regarding the assault on the victim, he had entered the information in the General Diary at the police station and had then rushed to the place of occurrence with his force and reached there at 3. 10 p. m. . On entering Flat No. 3g, he found the victim lying on the floor in front of the kitchen and gasping at that point of time. He had then deputed a constable to take the victim to P. G. Hospital in a police vehicle. He had then followed the police vehicle at 3. 30 p. m. and on his arrival at the hospital at 3. 40 p. m. , he learnt that the victim had expired on the way. He had then deputed a constable to take the victim to P. G. Hospital in a police vehicle. He had then followed the police vehicle at 3. 30 p. m. and on his arrival at the hospital at 3. 40 p. m. , he learnt that the victim had expired on the way. Thereafter, he returned back to the place of occurrence at 3. 50 p. m. , interrogated P. W. 11 and P. W. 16 regarding the occurrence, and recorded her statement. Specimen of blood was collected by him on blotting paper along with a nail-cutter, a pair of hawai chappal and a broken bowl made of china clay. Seizure List had been prepared by him in the presence of witnesses. He had, thereafter, examined P. W. 4, p. W. 5, P. W. 7 and other persons and recorded their statements. He had given requisition on 13. 3. 1994 for holding P. M. examination of the deadbody of the victim. He had collected the viscera of the deceased from the morgue and kept it in the Malkhana along with nail-cutting and blood etc. He said that there was a raid in the house of the appellant on the night of 15. 3. 1994 by S. I. , A. Saley and one Mr. P. K. Chatterjee had accompanied him during this raid as per the order of Detective department, Lalbazar, Kolkata. He had handed over the case diary on 25. 9. 1994 along with alamats. In cross-examination he stated that prior to 8. 9. 94 he had recorded the statements of P. W. s 16, 11, 15, 7, 14 etc. but said that it was "not a fact that there was no whisper as against the accused, Jalil Ah Mollah in the statement of the witnesses which were recorded prior to 8. 9. 94". P. W. 22 - This witness was the second Investigating Officer. On 24. 9. 94 he was attached to Detective Department, Lalbazar as Inspector of Police. As per order of D. C. D. D, Lalbazar he took up investigation of the case in question and took over charge of investigation from Officer-in-Charge, homicide Squad, Lalbazar. Immediately thereafter he conducted raid in village Ranganberia under P. S. Mograhat, District South 24-Parganas and arrested the appellant on 25. 9. 94 at about 11. a. m. On 6. 10. As per order of D. C. D. D, Lalbazar he took up investigation of the case in question and took over charge of investigation from Officer-in-Charge, homicide Squad, Lalbazar. Immediately thereafter he conducted raid in village Ranganberia under P. S. Mograhat, District South 24-Parganas and arrested the appellant on 25. 9. 94 at about 11. a. m. On 6. 10. 94, on interrogation the appellant made a statement which was recorded leading to the recovery of a cloth bag containing weapon of offence and one shirt. Pursuant to such statement (marked Ext. 26 with objection from defence)and being led by the appellant, the witness "had been to Gurusaday Road in front of a stacked cemented boulders on the pavement". The place is situated on the northern side boundary wall of CCFC. The appellant had removed the cemented boulders and brought out one old cloth bag containing something. He had then opened the bag in presence of the witnesses. One bhojali, one half sleeve white shirt smeared with brownish stains and marks and some mud were brought out by the appellant from inside the old cloth bag. The witness seized the articles in presence of passers-by witnesses and the appellant and had prepared seizure list on the spot. Out of the two attesting witnesses, one viz. Shibu Roy put his lti while the other one Umesh Chandra Jha put his signature. The appellant had also signed on the seizure list (Ext. 25 ). He identified the bhojali (Mat Ext. 11) which was recovered and the recovered shirt (Mat. Ext. 13 ). Despite sending letters by registered post and radiogram message and despite personally making efforts to produce the witnesses umesh Chandra Jha and Shibu Roy, the witness had failed to contact them. On the basis of a further statement made by the appellant before the witness on 8. 10. 1994, which was recorded (marked Ext. 27 with objection from defence), the witness had been to the shop at Chowringhee road, Kolkata on 8. 10. 94 being led by the appellant. The witness met p. W. 6 who brought out one neck-chain from inside the shop and produced before him. P. W. 6 also handed over one receipt to the witness which was prepared under carbon process (Ext. 5 ). The gold neck-chain and receipt were seized. 10. 94 being led by the appellant. The witness met p. W. 6 who brought out one neck-chain from inside the shop and produced before him. P. W. 6 also handed over one receipt to the witness which was prepared under carbon process (Ext. 5 ). The gold neck-chain and receipt were seized. ( 19 ) WHILE examining the evidence of P. W. s 4, 5, 7 and 17 with regard to alleged presence of the appellant at the place of occurrence on the fateful day, this Court finds that the version of P. W. S on the one hand and those of p. W. s 4, 7 and 17 on the other on one vital aspect although discrepant and thus raises some doubt, can be reconciled by drawing reasonable inferences from the evidence on record. The description of the person who visited Flat no. 3g, as noticed by P. W. s 4, 5 and 17, appear to be identical, i. e. thin physique with black complexion. Versions as regards age of that person more or less tally, as according to P. W. s 4, 5 and 7, he was 26 years, a young man, and 25/30 years respectively. However, the most vital aspect of time of arrival and departure of the said person as stated by P. W. s 4, 5, 7 and 17 appear not to be consistent. While P. W. 5's version is that the said person had called on the victim at 10. 15 a. m. and left by 10. 30 a. m. when she was leaving the flat of the victim, the version of P. W. s 4, 7 and 17 regarding arrival and departure time of the said person fits with one another, -P. W. 17 saw the said person to arrive at 10. 30/45 a. m. , P. W. 4 saw the said person talking to the victim, at 11. 00 a. m. , P. W. 17 saw the said person to depart at about 11. 30 a. m. , and the P. W. 7 also saw the said person going down the staircase in between 11. 30 a. m. and noon. ( 20 ) ANALYSING the above evidence, this Court finds that the two versions are apparently mutually inconsistent. If one version is to be believed, the other cannot stand. But, the two versions can be reconciled. 30 a. m. and noon. ( 20 ) ANALYSING the above evidence, this Court finds that the two versions are apparently mutually inconsistent. If one version is to be believed, the other cannot stand. But, the two versions can be reconciled. ( 21 ) ONE can reasonably assume that the person whom the P. W. s 4, 5 and 17 saw was the appellant, a painter, for reasons recorded hereafter. P. W. 5 had not seen the appellant earlier and thus had no occasion to know the identity of the appellant. But it is seen from the record that the victim had disclosed to the P. W. 5 that the painter had come and it would be convenient if P. W. 5 cleans the floor after the painting work is over. It, therefore, would stand to reason that the person with whom the victim was having a conversation, as witnessed by the P. W. 5, was the appellant. P. W. s 4 and 17 also deposed that they had seen the appellant previously to come to the flat of the Mongas for painting purpose. It is thus proved that the witnesses, at different times, had seen the same person, the appellant. ( 22 ) HOWEVER, it is also on record that while leaving the flat at 10. 30 a. m. , p. W. 5 found that the appellant was not there in the flat and that the victim was alone. It is thus probable that the appellant had left the flat of the victim, after conversation, by 10. 30 a. m. If the appellant had left the flat by 10. 30 a. m. , as stated by the P. W. 5, and the versions of the P. W. s 4, 7 and 17 are to be believed that they saw the appellant between 10. 30 a. m. and noon, the pertinent questions that would arise are (i) whether the appellant had come to the flat of the victim a second time after P. W. 5 left it ? and (ii) whether the P. W. s 4, 7 and 17 had correctly stated the time when they actually saw the appellant? 30 a. m. and noon, the pertinent questions that would arise are (i) whether the appellant had come to the flat of the victim a second time after P. W. 5 left it ? and (ii) whether the P. W. s 4, 7 and 17 had correctly stated the time when they actually saw the appellant? ( 23 ) HAVING regard to the fact that the victim had told P. W. 5 to clean the floor of the verandah after the painting work is over, it would not be unreasonable to presume that the painting work was scheduled to be complete on the same day and obviously by the time P. W. 5 leaves after second shift, so that prior to her leaving the flat the cleaning process could be undertaken. Possibility of the victim in course of conversation having requested the appellant to start the painting work after sometime cannot be ruled out in the circumstances, and if that be so, the further circumstance that the appellant returned to the flat of the victim after some time cannot also be ruled out. It might be that the appellant had been waiting outside the flat but went unnoticed by the P. W. 5. Since the P. W. 17, being the durwan, had not seen the appellant to take entry to the complex a second time, this appears to be the only plausible answer to the first question posed above. Section 114 of the Evidence Act contemplates that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in relation to the facts of the particular case. The presumption drawn as above, in the opinion of this Court, is thus in consonance with the provisions of law. However, the time of arrival of the appellant, as said by the P. W. 17 suffers from a minor discrepancy in that P. W. 5 having opened the door on responding to the call given by the appellant at about 10. 15 a. m. , entry of the appellant to the complex could not have been after 10. 30 a. m. , as stated by him. 15 a. m. , entry of the appellant to the complex could not have been after 10. 30 a. m. , as stated by him. But this discrepancy, in the opinion of this Court, is not such so as to shake the basic version of the witness that he did see the appellant to enter the complex in between 10. 30 and 10. 45 a. m. , i. e. about 15 to 30 minutes after the entry of the appellant in the complex, if one chooses to be mathematically accurate going by the version of the P. W. 5. The version of the P. W. 17 in this regard also finds corroboration from the versions of P. W. s 4 and 7. Thus from the analysis of evidence as above, this Court finds that the circumstance of presence of the appellant at the place of occurrence on the fateful date stood proved. ( 24 ) MERE presence of the appellant at the place of occurrence on the fateful day without anything more would not establish that he did commit the offence of murder of the victim. The prosecution, thus, was obliged to prove recovery of the cloth bag with the weapon of offence and the shirt, and the gold-chain with pendant. It is for the Court to examine now, on the basis of the available evidence, how far the prosecution has been able to prove the recovery and link it with the offence alleged to have been committed by the appellant. ( 25 ) RECOVERY of the cloth bag containing the weapon of offence and the blood-stained shirt, as per the prosecution was effected on 6. 10. 94 based on the disclosure made by the appellant in course of investigation. In fact, prosecution case is that the appellant had led the P. W. 22 to the place where the cloth bag had been kept hidden under boulders. This recovery has been criticized by learned Counsel for the appellant on various grounds, as noted above. ( 26 ) THIS Court can well take judicial notice of the fact that Gurusaday road, which is on the fringes of South Kolkata (and moving towards Central kolkata), is a busy thoroughfare flanked on its sides by the boundary walls of a club and a school at the material place from where the recovery was made. ( 26 ) THIS Court can well take judicial notice of the fact that Gurusaday road, which is on the fringes of South Kolkata (and moving towards Central kolkata), is a busy thoroughfare flanked on its sides by the boundary walls of a club and a school at the material place from where the recovery was made. The prosecution version regarding the recovery as has unfurled hardly inspires confidence. Arguments advanced on behalf of the appellant on the point cannot be brushed aside. It is highly improbable that the appellant being a resident of Diamond Harbour would, after committing murder, take the risk of concealing the cloth bag containing the weapon of offence and the blood-stained shirt under cement boulders on the pavement of a busy thoroughfare in broad day light, and thereafter would not make any endeavour to destroy it or conceal it elsewhere even when the police was on his look-out compelling him to file an application for anticipatory bail. It is equally improbable that for almost seven months the cement boulders would remain undisturbed on the pavement of a busy thoroughfare with no one noticing that a cloth bag is concealed under it. Keeping aside the above, the one big consideration that compels this Court to disbelieve the recovery of the cloth bag containing, inter alia, the weapon of offence is that even according to the prosecution such recovery was made from a place not in the exclusive possession of the appellant but from a place which is easily accessible by other people, coupled with the fact that recovery was made nearly seven months after the incident in question and the seizure list witnesses also could not be produced who could have corroborated the seizure. Although it is on record that the P. W. 22 made serious efforts to ensure their presence but in the absence of further acceptable corroboration on the point of recovery of the weapon of offence, this Court finds it unable to agree with the prosecution that this piece of evidence would be sufficient to base a conviction of the appellant in the given facts. This Court is of the view that the decision of the Apex Court in Maruti Rama Naik (supra) involving similar facts, relied on by learned Counsel for the appellant, is quite appropriate and can rightly be applied in the facts of the present case. This Court is of the view that the decision of the Apex Court in Maruti Rama Naik (supra) involving similar facts, relied on by learned Counsel for the appellant, is quite appropriate and can rightly be applied in the facts of the present case. Reference in this connection can also be made to the decision of the Apex court reported in 1986 Cr. LJ 1072, Abdul Sattar vs. Union Territory, chandigarh where in similar circumstances the Court refused to believe the recovery made after three weeks from the date of occurence. The decision in Modan Singh (supra) cited by learned Counsel for the State would not apply in the facts of the case since the recovery in question is not considered sufficient to base conviction of the appellant. ( 27 ) TURNING now to the prosecution case regarding recovery of the victim's gold-chain with pendant from the jewellery shop on Chowringhee Road on being led by the appellant himself, this Court on due consideration of the evidence led on this point is again unable to record its agreement with the prosecution case. The entire episode, as would be indicated hereafter, is suspicious to say the least. It is found that P. W. 6, not being the owner of the shop but an occasional visitor thereto was shown to be present interestingly both on 16. 3. 94 and 8. 10. 94, the only two days when the appellant allegedly had been there albeit for different purposes, to suit, the prosecution case. Nothing appears on record to establish that the P. W. 6 had attended the shop on other days between 16. 3. 94 and 8. 10. 94, The gold-chain with pendant, as per P. W. 6, had been kept in a casket but no query about its unauthorized retention for about seven months appears to have been raised by anyone connected with the shop. The owner of the shop was not examined and as such vital facts regarding the functioning of the shop as also veracity of the incidents of 16. 3. 94 and 8. 10. 94 could not be elicited. Reason for presence of the P. W. 6 on 8,10. 94 stands undisclosed. The owner of the shop was not examined and as such vital facts regarding the functioning of the shop as also veracity of the incidents of 16. 3. 94 and 8. 10. 94 could not be elicited. Reason for presence of the P. W. 6 on 8,10. 94 stands undisclosed. Having regard to the fact that the shop was a big one but not authorized to mortgage ornaments, it is practically unbelievable that without the consent of the owner a person who occasionally attends the shop would indulge in keeping ornaments in exchange of money from a rank outsider and that too without even trying to ascertain as to whether his possession of the ornament is otherwise legal or not. Over and above these, one finds that no entry with regard to handing over Rs. 1,200/- to the appellant was made in the books of accounts and no receipt as given either on the letter-head of the shop or on any other valid paper pertaining to the shop. Instead what appears to have been used is a plain piece of paper (Ext. 5 ). It is on record that the appellant on being beaten up in police lock-up had been forced to sign on some blank papers (examination of the appellant under section 313 of the Criminal procedure Code) and the possibility of Ext, 5 having been manufactured subsequently to suit the prosecution case by implicating the appellant cannot be ruled out. All these factors taken together cast reasonable doubt on the prosecution case which, in the view of this Court, is sufficient to arrive at a finding that it lacks credibility. Recovery of the victim's gold-chain with pendant, thus, is held not to have been proved beyond reasonable doubt. ( 28 ) SINCE this Court has not believed the plea of recovery of stolen articles, the ratio laid down in the decisions in Mukund and Gulab Chand (supra)cannot have any application in the facts of the present case. ( 29 ) NOW, the point of identification of the appellant by the P. W. s 4 and 17 is taken up for examination. Having held that the appellant was present on the date of incident at Flat 3g, it seems to be unnecessary to further dilate on this point. ( 29 ) NOW, the point of identification of the appellant by the P. W. s 4 and 17 is taken up for examination. Having held that the appellant was present on the date of incident at Flat 3g, it seems to be unnecessary to further dilate on this point. However, this Court on scrutiny of the evidence on record on this point is compelled to observe that conducting of the Test Identification parade for identification by the P. W. s 4 and 17 was redundant since it is on record that they had earlier noticed the appellant to come to the flat of the victim for painting purposes, and therefore had the occasion to know him as a painter. It has been held in the decision reported in 2002 (7) SCC 295 , dana Yadav vs. State of Bihar that it would be a waste of time, and test identification is not called for, if the accused is known to the prosecution witnesses from before. ( 30 ) HAVING found that two vital circumstances in the chain of evidence not having been proved beyond reasonable doubt, this Court ventures to examine some other aspects creating reasonable doubt in the mind of this court in respect of the prosecution case which has remain unexplained, thereby rendering it quite vulnerable. ( 31 ) THE first is related to the victim. As per the prosecution, she was assaulted during the hour preceding noon on. 12. 3. 94. The post-mortem report reveals at least one injury which has been opined as defensive in nature. The Court can presume that the flower vase, which was found in several pieces on the floor, was used for self-defence. It is improbable that in such a situation, she would not scream for help. But nobody heard her scream. However, that could be possible. Other flat-owners might not have heard her. But she was alive at least till 3. 10 p. m. when she was taken to hospital. P. W. 5 had noticed the victim lying in a pool of blood for the first time at 2. But nobody heard her scream. However, that could be possible. Other flat-owners might not have heard her. But she was alive at least till 3. 10 p. m. when she was taken to hospital. P. W. 5 had noticed the victim lying in a pool of blood for the first time at 2. 30 p. m. Accepting that the victim's condition was very serious, it is beyond comprehension as to why none of those present (P. W. s 5 and 16) at the very first instance did not try to elicit from her even once about the identity of her assailant, particularly when none of them said that the victim was not in a position to speak. It is true that P. W. ll from the entrance door of Flat no. 3g called the victim by name but finding no response, he did not enter her flat and that P. W. 15 found the victim to be unconscious while she was being placed in the ponce vehicle, but by that time valuable time was lost during which the victim's condition must have also deteriorated. It is also strange that for all of forty minutes the victim lay on the floor, medical assistance was not provided to her. ( 32 ) THE second relates to the investigation conducted by the P. W. s 21 and 22. It appears that as early as on 15. 3. 94, a raid had been conducted by s. I. A. Saley accompanied by P. K. Chatterjee. The outcome of the raid has not been disclosed. It also appears from the deposition of P. W. 21 extracted above that at least some allegations had been made by the witnesses against the appellant, yet no step was taken to arrest him. The case diary was handed over to the P. W. 22 on 25. 9. 94 and on that day itself, by 11 a. m. , the appellant came to be arrested by the P. W. 22. It is not the prosecution case that the appellant had been absconding. The case diary was handed over to the P. W. 22 on 25. 9. 94 and on that day itself, by 11 a. m. , the appellant came to be arrested by the P. W. 22. It is not the prosecution case that the appellant had been absconding. The questions that naturally arise and which have not been sufficiently answered are - why was the appellant not arrested earlier?, and, how is it that on the day the case diary was handed over to the P. W. 22, he could after perusing the case diary and understanding its contents make arrangements so fast and arrest the appellant from a distant place like Diamond Harbour by 11 a. m. ? ( 33 ) THE other relates to the testimony of the P. W. 17. One discrepancy in the version of the P. W. 17 regarding the time of arrival of the appellant for entering the complex has already been noted, which did not prove fatal for the prosecution case. But other portions of his deposition raise grave doubt in the mind of this Court. He could not name the co-durwans (five in number)who were on duty in the apartments on 12. 3. 94 but could vividly remember, even after lapse of almost three years from the date of incident, that the appellant entered the complex wearing a white shirt but left wearing a vest and that he was carrying a dirty white bag. Regarding checking of the persons of outsiders and the articles carried by them, his answers in cross-examination as noted above are clearly contradictory. Also, though he says he had challenged the appellant while he was seeking to enter the complex, the next moment he says that he did not check the bag of the appellant. The plea of P. W. 17 that the appellant's leaving the apartments wearing a vest (while he had entered he was wearing a shirt) also did not raise any suspicion in his mind, is not worthy of credence to say the least. The plea of P. W. 17 that the appellant's leaving the apartments wearing a vest (while he had entered he was wearing a shirt) also did not raise any suspicion in his mind, is not worthy of credence to say the least. One way of explaining it would be that the P. W. 17 was careless in the discharge of duty; but if that be so, can it believed that while being so careless the P. W. 17 at the same time would be so careful to notice as to what apparel the appellant was wearing while entering in and going out of the apartments, and what was he holding and its size. It would not be an exaggeration if the version of the p. W. 17 is branded as tutored. ( 34 ) THE last relates to the reports of chemical examinations conducted on specimen of blood of the victim collected from the place of occurrence and various seized articles, viz. the bhojali, the blood-stained shirt, the cloth bag, etc. None of the reports which are on record could connect the appellant with the crime in question. ( 35 ) THIS Court is of the considered opinion that while proceeding to arrive at a conclusion with regard to innocence or guilt of an accused on the basis of circumstantial evidence through a process of presumptive reasoning, minor discrepancies in the versions of the witnesses and obscurity here and there in the prosecution case ought not to stand in the way of recording a conviction provided the evidence is cogent, trustworthy and convincing, and unerringly points only to the guilt of the accused. However, this Court is constrained to hold, on meticulous consideration of the materials on record of the present case, that there is substance in the submission of the learned counsel for the appellant that there is sufficient ground to doubt the prosecution case and the appellant is entitled to benefit thereof. ( 36 ) LEARNED Counsel for the appellant having also addressed the Court on 'motive' which was found proved by the learned Trial Judge, this Court would now proceed to dwell upon the same to ascertain its merit. ( 37 ) IT appears difficult for this Court to accept that motive has been proved in this case. It is on record that the appellant had not worked in the flat of the victim after December, 1992. ( 37 ) IT appears difficult for this Court to accept that motive has been proved in this case. It is on record that the appellant had not worked in the flat of the victim after December, 1992. It is also the version of the P. W. 15 that the appellant, while visiting the flat thereafter, had been demanding money due to him and that Rs. 400/- had been paid to him. It appears from a page of the diary of the victim (Mat. Ext. 11) that payment of Rs. 400/- was made on 27. 12. 1992, which was duly recorded therein. Although P. W. 15 said that the appellant had last come to the flat in January, 1994, he did not say anything with regard to the conversation that took place in course of such a visit. To urge the Court to believe that the appellant, in order to recover the money due to him, had come to Flat No. 3g with premeditation to kill the victim and had consequently murdered her is something that appears to the Court to be wholly unbelievable. ( 38 ) THE decisions cited by Mr. Ganguly on the point of "motive" are authorities for the proposition that if the circumstances relied upon by the prosecution are proved beyond doubt and unerringly point towards the guilt of the accused, absence of motive, ipso facto, would not be fatal for the prosecution case and would not warrant an acquittal. The ratio of the cited decisions are inapplicable in the facts of the present case since this Court is of the view that all the circumstances relied upon by the prosecution have not been proved beyond reasonable doubt. ( 39 ) IN the decision reported in 1993 (2) SCC 684 , Kundula Bala subrahmanyam vs. State of Andhra Pradesh, "it has been held that in a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning. " Absence of proof of all circumstances beyond reasonable doubt together with absence of proof of motive, in the present case, has the effect of breaking the link in the chain of evidence, the resultant effect of which is to hold that the prosecution has not been able to prove the charge against the appellant under section 302 of the Indian Penal Code beyond all reasonable doubt. ( 40 ) THIS Court is conscious of the settled position of law that benefit of doubt cannot be claimed on the basis of hypothetical propositions or imaginative doubts and that the rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures and fanciful considerations. Equally, it is settled position of law that there has to be clear evidence of the guilt of the accused and in the absence of that it is not possible to record a finding regarding guilt of the accused. ( 41 ) HOWEVER, in the facts of the present case it has been found that all the circumstances in the chain of evidence which were required to be proved conclusively in order to return a finding consistent only with the guilt of the appellant could not be proved beyond reasonable doubt and as such in the final analysis this Court is compelled to confer the benefit of doubt on the appellant and to hold that the charge framed against the appellant has not been established by the evidence brought on record. ( 42 ) IN the result, the conviction of the appellant is held to be unjustified and consequently the judgment and order of the learned Judge impugned in this appeal are set aside. The appeal stands allowed. The appellant is entitled to an order of acquittal. The appellant be released forthwith if he is not wanted in any other case. Appeal allowed.