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2010 DIGILAW 768 (CAL)

Sunil Ganguly v. STATE OF WEST BENGAL

2010-07-08

PRABHAT KUMAR DEY, S.P.TALUKDAR

body2010
JUDGMENT S.P.Talukdar, J. 1. BY judgment dated 4th of July, 2005 and order dated 5th of July, 2005, the learned Trial Court convicted Dr. Subha Ranjan Khanra, Sunil Ganguly and Abbas Ali Karikar for the commission of offences punishable under Sections 302/34 and Sections 302/120B of the Indian Penal Code. They were sentenced to suffer imprisonment for life and to pay fine of Rs. 10,000/-, i.d., to suffer further imprisonment for two years for the offence under Sections 302/34 of I.P.C. and were sentenced to suffer imprisonment for life and to pay fine of Rs. 10,000/-, i.d., to suffer imprisonment for two years for the offence under Section 120B read with Section 302 of I.P.C. Learned Court, however, directed that both the substantive sentences were to run concurrently. 2. LEARNED Trial Court convicted Dr. Rahamat A. Alam for the commission of the offence punishable under Sections 302/120B of the Indian Penal Code and he was sentenced to suffer imprisonment for life and to pay fine of Rs. 10,000/-, i.d., to suffer further imprisonment for two years. Apurba Mohan Sanyal was convicted for the commission of the offence punishable under Section 201 of I.P.C. He was sentenced to suffer imprisonment for five years and to pay fine of Rs. 1,000/-, i.d., to suffer further imprisonment for six months. 3. DR. Subha Ranjan Khanra, Sunil Ganguly, Abbas Ali Karikar and DR. Rahamat A. Alam were acquitted of the charges under Section 201 of the I.P.C. while, the accused persons, namely, DR. Arundhuti Khanra and Goutam Ganguly were acquitted of all the charges, as framed against them. 4. BEING aggrieved by the said judgment and order of conviction and sentence, the instant appeals, being C.R.A. No. 529 of 2005, C.R.A. No. 603 of 2005, C.R.A. No. 496 of 2005, C.R.A. No. 480 of 2005 and C.R.A. No. 619 of 2005 were filed. The backdrop of the case in brief is :- 5. ON 26th February, 2003, a case being Ranaghat P.S. Case No. 80 of 2003 under Sections 302/201/120B of the Indian Penal Code was started. It was on the basis of the following allegations :- ON 26th of February, 2003, Dr. Chandan Sen had been to the house of the Sunil Ganguly, a staff of Ranaghat Hospital, in response to an invitation. Mr and Mrs Khanra, Apurba Mohan Sanyal and a few others were invited on the said occasion. It was on the basis of the following allegations :- ON 26th of February, 2003, Dr. Chandan Sen had been to the house of the Sunil Ganguly, a staff of Ranaghat Hospital, in response to an invitation. Mr and Mrs Khanra, Apurba Mohan Sanyal and a few others were invited on the said occasion. At about 9:30 P.M., dinner was served by the women folk of the family of Sunil Ganguly. The invitees finished the dinner at about 10:20/10:30 P.M. Sunil Ganguly followed by Dr. Chandan Sen washed their hands. Dr. Sen wiped his hands with a towel given by Sunil Ganguly. He went away from there. Thereafter, Dr. Khanra washed and wiped his hands and followed Dr. Sen and Sunil Ganguly. At that point of time, Apurba Mohan Sanyal was in the television room watching the cricket match between India and England. After about 15/20 minutes, Sunil Ganguly came inside the room and informed that Dr. Sen was missing. A thorough search with the help of the local club members was made for tracing, Dr. Sen, out. Finally, his body was found lying in the pond with his face down. Dr. Sen was bodily lifted. He was placed on a cot inside the room of Sunil Ganguly. The body of Dr. Sen was then removed to the Hospital in Dr. Khanra's car accompanied by Sunil Ganguly and Dr. Khanra. Apurba Mohan Sanyal and son-in-law of Sunil Ganguly followed the car in a motorcycle. In the Hospital, it was declared that Dr. Sen had been brought dead. 6. AFTER completion of investigation, the investigating authority submitted charge-sheet on 12th June, 2003 and a supplementary charge-sheet was filed on 27th August, 2003. Learned District and Sessions Judge, Nadia, framed charge against the accused persons under Sections 302/201/120B of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried. 7. THE defence did not examine any witness. It's stand, as could be found from the trend of cross-examination and the statements made during examination under Section 313 of Cr.P.C., is the denial of prosecution allegations and the plea of innocence. 8. PROSECUTION in order to establish the guilt of the accused persons examined as many as 82 witnesses and a number of documents were exhibited. It's stand, as could be found from the trend of cross-examination and the statements made during examination under Section 313 of Cr.P.C., is the denial of prosecution allegations and the plea of innocence. 8. PROSECUTION in order to establish the guilt of the accused persons examined as many as 82 witnesses and a number of documents were exhibited. In connection with a criminal reference being No. 32 of 1923, as reported in AIR 1924 Calcutta 323, learned Division Bench of this Court being presided over by Hon'ble Justice Asutosh Mookerjee held that "the evidence must show that the incident alleged happened at the time, in the place and under the precise circumstances narrated on behalf of the prosecution. 9. ALMOST a century has passed since then but the legal complexion virtually remains the same. 10. BEFORE proceeding further, it may be mentioned that the entire prosecution case is based on circumstantial evidence. The circumstances, which appear to have been relied upon by the learned Trial Judge may be encapsulated as follows:- A dinner party was hosted by one Sunil Ganguly in the night of 26th of February, 2003. It was attended by victim, Dr. Chandan Sen, since deceased, Dr. Khanra and others. Dr. Sen after finishing his dinner went out. He was followed by Mr. Sunil Ganguly and then, Dr. Khanra. On their way to the house of Sunil Ganguly, Dr. Khanra and his wife, namely, Arundhuti Khanra, took a paper box containing "Pakora" from the restaurant of P.W. 24. The same was supplied in a 'carry bag'. P.W. 5, Nupur Saha, deposed that Mr. and Mrs. Khanra brought "chilly chicken" in a tiffin box and 'Pakora" in a paper packet. P.W. 16, Nanita Ghosh, deposed that Dr. Khanra brought chilly chiken and pakora in a paper packet and the same were cooked by Mrs. Khanra. Mrs. and Mr. Khanra reached the residence of Sunil Ganguly with a carry bag containing the said chicken preparation. 11. SITARAM Sahani, P.W. 47, was a driver of the car belonging to Dr. Khanra. He deposed that Dr. Khanra carried two carry bags one containing food and the other, gift packet. At about 10 P.M. after the dinner was over, P.W. 47 saw three persons wearing ganjee and shirt (one of them also had a napkin with him). They approached him and enquired about the invitees to the dinner party. Khanra. He deposed that Dr. Khanra carried two carry bags one containing food and the other, gift packet. At about 10 P.M. after the dinner was over, P.W. 47 saw three persons wearing ganjee and shirt (one of them also had a napkin with him). They approached him and enquired about the invitees to the dinner party. He responded to the query and returned to the club for watching the cricket match on T.V. Out of the persons who came near the house of Sunil Ganguly on the night of 26th February, 2003, P.W 47 could identify one of them as Abbas Ali Karikar. 12. WIFE and mother of the victim were examined as P.W. 49 and P.W. 50. In their evidence, they stated that they were told by Dr. Sen, since deceased, about Dr. Alam's inimical disposition towards him. According to them, as told by the victim, this was over misuse of Government fund and professional rivalry. This could be the motive for murder. Dr. Partha Sarathi Saha, who was examined as P.W. 71 found that Dr. Sen was brought dead to the Hospital. He deposed that he was told by Dr. Khanra that they had lifted the victim from the pond and that Dr. Sen vomited on the left shoulder of Dr. Khanra. P.W. 71 stated that he did not find any stain of vomiting on the shoulder of Dr. Khanra. 13. DR. A. K. Gupta conducted the post mortem examination at about 2 P.M. of 28th February, 2003. He found as many as eleven external and four internal injuries. He opined that those injuries in capacitated DR. Sen and thereafter, he was smothered to death by means of plastic bag or similar item. He found most of the injuries in and around the neck and the right arm of DR. Sen. He further opined that in case of a fall into the pond in a state of drunkenness, there could be several injuries all over the body. DR. Gupta further opined that injuries found on the person of DR. Sen were inflicted by hostile hands and could not be due to manhandling of the dead body at the time of transmission from Ranaghat to Calcutta for post mortem examination. According to P.W. 47, the external and internal injuries might have been caused by hard elongated object, by fists and blows. Sen were inflicted by hostile hands and could not be due to manhandling of the dead body at the time of transmission from Ranaghat to Calcutta for post mortem examination. According to P.W. 47, the external and internal injuries might have been caused by hard elongated object, by fists and blows. Referring to injury numbers 14 and 15, he stated that those could be caused by attempt to apply a band or short napkin over the upper part of the neck. When the open or handle part of polythene bag tightened on the upper part of neck, similar injury could occur. He further deposed that the victim suffered injuries as a result of blows and strikes. No poison was detected in the dead body of the victim. 14. DEATH, in the opinion of Dr. Gupta, was due to effect of asphyxia as a result of smothering i.e., closing of mouth and nostril extending to the respiratory orifice by plastic bag or pillow or by hand or by similar object. There was evidence of liquor like smell in the stomach contents. In all probability, Dr. Sen was smothered by means of a plastic bag after he was incapacitated by the injuries inflicted on him. Learned Trial Court took into consideration the fact that the deceased was last seen in the house of Sunil Ganguly that there was ill-relation, professional jealousy, hatred between the accused and Dr. Sen, who again had Godlike image and that few of the accused persons absconded after the death of Dr. Sen. Nokari was a remote village and it was a winter night and there was no passerby outside the room at the dead of night. 15. THE dead body was found at a distance of 11/12 cubits away from the land and water line of the pond. Learned Trial Court considered that the entire circumstances pointed out that the body of Dr. Sen was taken there by some unknown miscreants. THEre is reference that P.W. 15 and P.W. 30 who are local club boys and were watching T.W. in the club room, searched for the victim when the latter was reported to be missing. After thorough search made with the help of Apurba Sanyal, some local boys, Krishna Biswas and Koushik Biswas, the dead body was recovered from the pond. Krishna Biswas and Koushik Biswas did not state that anybody accompanied or followed the victim. After thorough search made with the help of Apurba Sanyal, some local boys, Krishna Biswas and Koushik Biswas, the dead body was recovered from the pond. Krishna Biswas and Koushik Biswas did not state that anybody accompanied or followed the victim. Krishna Biswas deposed that Dr. Sen left the room after taking dinner. 16. AT this stage, it may be mentioned that it is always the burden on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is the settled principle of criminal jurisprudence that more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. The Apex Court in the case between Mousam Singha Roy and Ors. And State of W.B., as reported in (2003) 12 SCC 377 , held that "the Supreme Court is not unaware of the degree of agony and frustration that may be caused to the society in general and the families of the victims in particular, by the fact that a heinous crime like murder goes unpunished, but then the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone." In the case between Prem Thakur And State of Punjab, as reported in AIR 1983 SC 61 , the Apex Court held : "In a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt." 17. IN response to the charge of criminal conspiracy, learned Counsel, Mr. Sekhar Basu, deriving inspiration from the decision of the Apex Court in the case between Girja Shankar Misra And State of U.P., as reported in AIR 1993 SC 2618 , submitted that even serious misunderstandings between the deceased and the accused could at best give rise to the probability of a motive to kill but that by itself cannot be proof of the accused conspiring to get the deceased killed. 18. NO doubt, it is difficult to support the charge of conspiracy with direct evidence in every case. 18. NO doubt, it is difficult to support the charge of conspiracy with direct evidence in every case. But as observed by the Apex Court in the case between Param Hans Yadav and Anr. And State of Bihar and Ors., as reported in AIR 1987 Sc 955 , if the prosecution relies upon circumstantial evidence, a clear link has to be established and the chain has to be completed, otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the basis of such incomplete evidence, the alleged conspiracy cannot be accepted. Moving a step forward, it can also be said that in order to establish a charge on the basis of mere circumstantial evidence, 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. 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. As held by the Apex in the case between Sharad Birdhichand Sarda And State of Maharashtra, as reported in AIR 1984 Sc 1622 , the circumstances should be of a conclusive nature and tendency. Those should exclude every possible hypothesis except the one to be proved, 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. 19. IT was observed : "A case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction." 20. IN this context, it may also be mentioned that where on the evidence two probabilities were available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. This derives support from the Apex Court decision in the case between Vikramjit Singh @ Vicky And State of Punjab, as reported in (2007) 1 SCC (Cri) 732. 21. This derives support from the Apex Court decision in the case between Vikramjit Singh @ Vicky And State of Punjab, as reported in (2007) 1 SCC (Cri) 732. 21. IT is settled principle of law that a person can be convicted not only on direct evidence alone but also on the basis of circumstances. IT is trite law that when the evidence against an accused consists only of circumstances and he is charged with a grave offence like murder, the circumstances must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inference but rational deductions which reasonable minds made from the probative force of facts and circumstances. (Ref: Mohan Lal Pangasa, AIR 1974 SC 1144 ). Section 120A defines criminal conspiracy. The same reads : When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy : 22. PROVIDED that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Thus, the ingredients of this offence are : - (1) That there should be an agreement between the persons who are alleged to conspire; and (2) That the agreement should be : (i) for doing of an illegal act, or (ii) for doing by illegal means an act which may not itself be illegal. Privacy and secrecy are more characteristic of a conspiracy than a loud discussion in an elevated place open to public view. In order to constitute a single general conspiracy there must be a common design and a common intention of all to work in furtherance of the common design. It cannot be denied that it is not necessary that a person should be a participant in a conspiracy from start to finish. Conspirators may appear and disappear from stage to stage in the course of a conspiracy. It cannot be denied that it is not necessary that a person should be a participant in a conspiracy from start to finish. Conspirators may appear and disappear from stage to stage in the course of a conspiracy. It also cannot be denied that in considering the question of criminal conspiracy, it is not always possible to give formative evidence about the date of the formation of the conspiracy, about the persons who took part in the formation of the conspiracy, about the object which the conspirators set before themselves as the object of the conspiracy and about the matter in which the object of the conspiracy was to be carried out. All this is a matter of inference. The essence of criminal conspiracy is an agreement to do an illegal act. Such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that there should be express proof of the agreement, but from the acts and conduct of the parties, the agreement can be inferred. But mere suspicion is not enough to frame charges against the accused. But direct evidence to prove conspiracy is rarely available. Therefore circumstances proved before, during and after occurrence have to be considered to decide on the complicity of the accused person. 23. THE question that arises in the present case is how far the prosecution with its witnesses establish that there had been a criminal conspiracy amongst some of the accused persons in order to murder the victim, Dr. Sen. 24. IT may now be pointed out that in order to constitute an offence under Section 201 of I.P.C., the prosecution is required to establish : i. That an offence has been committed; ii. That the accused knew or had reason to believe the commission of such an offence; iii. That with such knowledge or belief ; a) caused any evidence of the commission of that offence to disappear, or b) gave any information relating to that offence which he then knew or believed to be false. iv. That the accused knew or had reason to believe the commission of such an offence; iii. That with such knowledge or belief ; a) caused any evidence of the commission of that offence to disappear, or b) gave any information relating to that offence which he then knew or believed to be false. iv. That he did so as aforesaid with the intention of screening the offender from legal punishment; and v. If the charge be of an aggravated form, it must be further proved that the offence in respect of which the accused did as was punishable with death or imprisonment for life or imprisonment extending to ten years. In order to establish the charge under Section 201 of I.P.C., it is essential to prove that an offence has been committed and that the accused knew or had reason to believe that such offence has been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offence knowing or having reason to believe the same to be false. (Ref: Palvinder Kaur Vs. The State of Punjab, AIR 1952 SC 354 ). 25. A mere wrong statement cannot form the basis of conviction under Section 201 of Indian Penal Code until and unless the same is done wilfully and with the intent to screen an offender. (Ref: Balai Chandra Biswas Vs. State of W.B., 1994 CRI.L.J. 1035). 26. MR. Joymalya Bagchi, appearing as learned Counsel for the convict, Apurba Mohan Sanyal, relying upon the decision of the Apex Court in the case between Raghav Prapanna Tripathi and Ors. And State of U.P., as reported in 1963 (1) Cri. L. J. 70, submitted that it may be that the accused had knowledge of the removal of the dead body but what Section 201 of I.P.C. requires is causing any evidence of the commission of the offence to disappear or giving any information respecting the offence which a person knows or believes to be false. Mr. Milon Mukherjee, appearing as learned Counsel for the appellant in C.R.A. 603 of 2005, echoed the submission made by Mr. Bose as well as Mr. Mr. Milon Mukherjee, appearing as learned Counsel for the appellant in C.R.A. 603 of 2005, echoed the submission made by Mr. Bose as well as Mr. Bagchi by saying that in order to prove a charge on the basis of circumstantial evidence, the circumstances forming evidence must be conclusively established and even when so established, they must form such a complete chain that it is not only consistent with the guilt but is inconsistent with any reasonable hypothesis of innocence. The Apex Court while observing the same in the case between Rahman And The State of U.P., as reported in 1972 CRI. L.J. 23, further held that even subsequent conduct of abscondence by itself is not conclusive either of guilt or of guilty conscience. 27. EVIDENCE may direct or circumstantial. Direct evidence is the evidence of witnesses, things or documents, which directly establishes the existence or non-existence of the principal facts. On the other hand, the circumstantial evidence helps the court to infer the existence or non-existence of the principal facts from oral, documentary or physical evidence. So, the inference of facts-in-issue may be drawn from circumstantial evidence. It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. 28. WHILE attempting to establish the charge, prosecution seeks to rely upon circumstantial evidence, all the circumstances relied upon by it must be clearly established. 28. WHILE attempting to establish the charge, prosecution seeks to rely upon circumstantial evidence, all the circumstances relied upon by it must be clearly established. It is held by the Supreme Court that the following tests are to be satisfied when a case rests upon circumstantial evidence : (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused, (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with guilt of the accused but should be inconsistent with his innocence. (Ref: Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 1 SCC (Cri) 1184). 29. MR. Sekhar Basu appearing with MR. Soubhik Mitter, as learned Counsel for the appellant in C.R.A. 480 of 2005, namely, Dr. Subha Ranjan Khanra and also for the appellant, Sunil Ganguly in C.R.A. No. 529 of 2005, first submitted that the prosecution has miserably failed to connect the different events with a common thread. 30. THE very significant aspect of the case is whether the victim was last seen with the accused persons charged for the offence of murder. THE evidence on record in this regard is that the victim along with others had their dinner party at the residence of Sunil Ganguly. But evidence on record indicates that after the dinner was over, Dr. Sen washed his hands and then went out of the room. THEre is nothing to show that he was accompanied by anyone else while leaving the room. Since he did not return for sometime, Sunil Ganguly and others went out in search of Dr. Sen. THEre had been time gap of 10/15 minutes. After some more than time, Sunil Ganguly came back and intimated that Dr. Sen could not be found. This prompted those persons to try to find him out. THE local boys, who were watching cricket match, joined the search. Sen. THEre had been time gap of 10/15 minutes. After some more than time, Sunil Ganguly came back and intimated that Dr. Sen could not be found. This prompted those persons to try to find him out. THE local boys, who were watching cricket match, joined the search. THE two private tutors i.e., P.W. 29 and P.W. 33, who were invitees to the party, also joined them. Some of them got down in the pond adjacent to the house of Sunil Ganguly. THEre the body of Dr. Sen was found lying a little distance away from the embankment of the pond. THEreafter, with the headlight of the car of Dr. Khanra and other light sources as focussed, the body of Dr. Sen was brought out of the water. Having regard to such evidence on record, it cannot be said that Dr. Sen was last seen only in the company of Dr. Khanra and Sunil Ganguly. Mr. Basu, in this context, drew attention of the Court to the evidence of a number of prosecution witnesses like P.Ws 5, 8, 16, 23, 29 and 33. Learned Public Prosecutor, Mr. Goswami, referred to the decision of the Apex Court in the case between Kusuma Ankama Rao And State of Andhra Pradesh, as reported in (2009) 2 SCC (Cri) 298. The Apex Court in the case referred to an earlier decision between Ramreddy Rajesh Khanna Reddy And State of A.P., (2006) 3 SCC (Cri) 512. The Apex Court in the said case observed that "the last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration." 31. IT is doubtful as to how the evidence on record in this case could pass the test of such legal scrutiny. 32. REFERRING to the injuries found on the body of the victim by the autopsy surgeon, Mr. Basu submitted that the attack on the victim, if any, took some time and during such time, it was most natural for the victim to have shouted for help. 32. REFERRING to the injuries found on the body of the victim by the autopsy surgeon, Mr. Basu submitted that the attack on the victim, if any, took some time and during such time, it was most natural for the victim to have shouted for help. REFERRING to the evidence on record, he submitted that none of the local persons, who were watching a cricket match on TV in a local club or even P.W. 47 (Sitaram Sahani), who was outside the house, had heard any cries/screams of the victim. According to Mr. Basu, state of facts cannot be reconciled with the medical and other circumstantial evidence as brought on record. Mr. Basu, in this context, further referred to the evidence of P.W. 71, who deposed that the victim was alive for sometime when he was taken to the hospital and life saving drugs were administered to him, but he did not survive. No doubt, the Doctor conducting post mortem examination stated that death was due to effect of asphyxia as a result of smothering i.e., closing of mouth and nostril extending to the respiratory orifice by plastic bag or pillow or by hand or by similar object. The prosecution sought to establish that the polythene carry bag was used to smother Dr. Sen. But no such carry bag could be found out in course of investigation. Seizure of a carry bag from the restaurant of P.W. 24 and the opinion of the forensic expert does not improve the prosecution case. On behalf of the appellants, it was further submitted that P.W. 24 never mentioned about supplying chilly chicken in a polythene carry bag while his statement was recorded under Section 161 of Cr.P.C. This naturally creates a further wound in the prosecution case. Prosecution had alleged ill-relation, professional jealousy and hatred between the accused persons and the victim. There is, however, evidence on record that the deceased was the teacher of Dr. Khanra at Bankura Sammilani Medical College. The landlord and the landlady of the rented house of Dr. Sen stated that the relation between them was cordial. The professional field of Dr. Sen and that of Dr. Khanra were totally different. Mr. Basu submitted that Dr. Khanra and Dr. Sen was so close that they even decided that in the event of Mrs. The landlord and the landlady of the rented house of Dr. Sen stated that the relation between them was cordial. The professional field of Dr. Sen and that of Dr. Khanra were totally different. Mr. Basu submitted that Dr. Khanra and Dr. Sen was so close that they even decided that in the event of Mrs. Khanra's giving birth to a female child, she would be given in marriage to the son of Dr. Sen. The evidence in order to establish that there had been any enmity or bad relation between Dr. Khanra and Dr. Sen, does not appear to be inspiring at all. 33. LEARNED Trial Court appears to have laid emphasis on alleged abscondence of the accused persons. In this context, learned Counsel for the appellant refers to the evidence on record while submitting that Dr. Khanra and Mrs. Khanra were arrested by police from their rented house at Kalyani on 16.3.2003 and the instant case was registered on that date itself. The appellant, Sunil Ganguly, was arrested on 13.4.2004 and his son, Goutam Ganguly, was arrested on 16.3.2003. Thus, there were hardly any satisfactory evidence in support of the contention that abscondence of some of the accused persons could further establish their involvement in the crime. 34. REFERRING to the evidence that after lifting the body of Dr. Sen from the pond, attempts were made by Dr. Khanra and Sunil Ganguly to revive him. There was a massage with hot oil. In absence of any positive result, the victim was taken to Ranaghat Hospital in the car of Dr. Khanra. Mr. Basu then contended that if judged on the anvil of human conduct and probability, all these facts would indicate that the appellants could not have culpable mental state for committing the crime. On the contrary, they had tried their level best to resuscitate the victim. Mr. Basu raised a technical point while submitting that the FIR was registered in this case on 16th March, 2003. Since on the very next date of the alleged incident, P.W. 40 lodged a written complaint over the death of Dr. Chandan Sen that by itself makes the FIR inadmissible. Referring to the medical evidence, as mentioned earlier, Mr. Basu submitted that the death of the victim could have been the direct result of the deceased condition of the vessels of the heart. Chandan Sen that by itself makes the FIR inadmissible. Referring to the medical evidence, as mentioned earlier, Mr. Basu submitted that the death of the victim could have been the direct result of the deceased condition of the vessels of the heart. Referring to the evidence of P.W. 71, learned Counsel for the appellant submitted that the prosecution evidence in regard to the exact time of death of the victim suffers from inherent inconsistency. Attention of the Court was invited to the evidence on record to the effect that P.W. 71 while finding the victim lying on the trolley in the Male Surgical Ward, one male attendant was giving him external cardiac massage and oxygen was being administered. He stated that one Dr. Biswas tried to push intravenous saline but he failed. P.W. 71 claimed that he tried to put saline but without any success. He further deposed that Dr. Biswas pushed some saving drugs and P.W. 71 tried to administer intra cardiac adrenaline but failed. Thus, there is serious doubt as to whether the death of the victim had been caused immediately by smothering. 35. ON behalf of the appellants, it was submitted that the evidence on record would make it abundantly clear that Dr. Khanra and Mrs. Khanra attended the invitation like any other invitee and there could be no evidence so as to establish that there had been any conspiracy hatched up between the appellants and other persons. Mr. Basu seems to be quite justified in submitting that a Court of Appeal cannot be allowed to stretch its imagination hypothetically in order to fill up the lacuna in the prosecution case. He submitted that hypothetical inference bereft of actual details cannot assume the status of admissible evidence. 36. LEARNED Counsel for the appellants in other cases submitted that there is no evidence worth mentioning with regard to any prior meeting of mind between the appellants and other accused persons in order to hatch up a conspiracy to do away with the life of Dr. Sen. Significantly enough, P.W. 71 claimed that on inspection, he did not find any stain of vomit on the shirt of Dr. S. R. Khanra. Sen. Significantly enough, P.W. 71 claimed that on inspection, he did not find any stain of vomit on the shirt of Dr. S. R. Khanra. Such a statement does not find mention in the statement recorded under Section 161 of Cr.P.C. The evidence of P.W. 79, the autopsy surgeon that the victim was smothered with the help of a plastic carry bag resulting in asphyxia does not seem to be consistent with the evidence of the witnesses who claimed to have lifted the body of the victim from the pond and found him in an unconscious state. These witnesses (P.Ws 29 and 30) further claimed that the body of Dr. Sen was lifted from the pond by catching his collar and in the process there was every possibility of the body being subjected to abrasions in the process of it being lifted from water in the said manner. It was contended that the Courts in India have always sounded a word of caution before accepting expert opinion, which run counter to credible ocular evidence. 37. IT was emphatically submitted on behalf of the appellants that the prosecution stand underwent significant changes at different stages. Starting from a case of throttling, it transformed into a case of smothering by means of a plastic carry bag, as soon as the C.I.D. officers stepped into the picture. 38. MR. Milon Mukherjee, appearing as learned Counsel for the appellant in C.R.A. No. 603 of 2005, submitted that there had been miserable failure on the part of the learned Trial Court to assess the evidence on record. He referred to the evidence on record in support of his contention that Dr. Alam called on repeated occasions by the first investigating Officer, who subsequently handed over charge of the investigation. According to him, Dr. Alam could at best be a witness. He was never arrested and was subsequently implicated in the supplementary charge-sheet. He also sought to assail the impugned judgment on the ground that learned Trial Court did not examine the accused persons in strict compliance with Section 313 of Cr.P.C. While asserting that mere abscondence does not suggest involvement in the crime, reference was made to various decisions of the Apex Court. Mr. Dastoor, appearing as learned Counsel for the appellant in C.R.A. No. 619 of 2005, virtually echoed the submission made by learned Counsel Mr. Basu. Mr. Dastoor, appearing as learned Counsel for the appellant in C.R.A. No. 619 of 2005, virtually echoed the submission made by learned Counsel Mr. Basu. He categorically mentioned that the prosecution evidence is far from convincing and when it seeks to rely upon circumstantial evidence, it cannot afford to have wide gaps here and there in the chain of events. Mr. Jay Sengupta, appearing with Ms. Bandyopadhyay and Mr. Kabir, as learned Counsel for the defacto complainant, referred to the written notes of submission. According to him, minor discrepancies cannot wipe out the otherwise well knit evidence on record. It was further contended that the evidence placed on behalf of the prosecution leaves little scope for any doubt or dispute. According to Mr. Goswami, learned Public Prosecutor, the evidence on record is without any break in the chain and it is so well knit that there is no reason as to why it cannot inspire confidence of the Court. He drew attention of the Court to the sketch map and in response to the submission made by Mr. Basu that the same is hit under Section 162 of the Cr.P.C., he submitted that in the present case sketch map was not drawn on the basis of any recorded statement. 39. THIS by itself, however, does not make any serious impact on the overall evidence on record in this case. It is well settled that credibility of testimony depends on judicial evaluation of the totality and not isolated scrutiny. Marginal mistakes and minor inconsistencies cannot demolish a prosecution case. It cannot be disputed that the proof beyond reasonable doubt is a guideline, not a fetish. Truth may sometime suffer from infirmity when projected through human process. What is required is to ascertain whether the evidence on record can establish the guilt of the accused persons beyond the shadow of reasonable doubt and not beyond all doubt. 40. ANALYZING the evidence on record in the context of the aforesaid legal position, we are afraid that in the instant case, there are certain latent wounds, which could not be effectively and properly healed up. It is not that the prosecution is required to dot every 'i' and cut every 't'. But when the prosecution case is entirely based on circumstantial evidence, there is need for caution. It cannot afford to have any gaps. It is not that the prosecution is required to dot every 'i' and cut every 't'. But when the prosecution case is entirely based on circumstantial evidence, there is need for caution. It cannot afford to have any gaps. In the present case, there is no evidence on record that after the victim came out of the room finishing his dinner, he was seen with any of the appellants. Thus, the proposition that two other appellants followed the victim soon after he left the room after finishing his dinner cannot satisfy the judicial conscience of the Court. Mere seizure of a carry bag from a shop and then, getting it examined does not lead to any presumption, far less proof, that the victim was smothered with a similar kind of carry bag. No doubt, there is medical evidence on record, which goes a long way to substantiate the claim that the victim was smothered. But that by itself is not enough. It appears that the learned Division Bench of this Court issued suo motu Rule. Mr. Basu, in this context, submitted that prosecution did not seek to assail the order of acquittal in respect of two accused persons. He categorically submitted that suo motu Rule, directing to show cause on the accused persons does not seem to have any support of law. He submitted that the learned Division Bench did not have any revisional jurisdiction. Referring to the Appellate Side Rules, it was further submitted that such Rules do not empower such issuance of Rule. 41. IN this context, Mr. Basu referred to the decision of the Apex Court in the case between Sabab Singh and Ors. And State of Haryana, as reported in AIR 1990 SC 1188 . The Apex Court in the said case held :- "If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code by issuing notice of enhancement and hearing the convicts on the question of inadequacy of sentence. The Apex Court in the said case held :- "If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code by issuing notice of enhancement and hearing the convicts on the question of inadequacy of sentence. Without following such procedure it was not open to the High Court in the appeal filed by the convicts to enhance the sentence." Referring to the decision of the Apex Court in the case between Madhu Limaye And State of Maharashtra, as reported in AIR 1978 SC 47 , it was submitted that the power under Section 482 is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved person. Division Bench of this Court in the case between Sk. Rahim and Anr. And State of West Bengal, as reported in (2007) (4) CHN 635, observed in the context of such issuance of suo motu Rule that the Division Bench lacked revisional jurisdiction and as such, the same cannot pass the test of legal scrutiny. Considering all such facts and circumstances and having regard to the discussion as made above, we find it difficult to brush aside the grievances, as ventilated on behalf of the appellants. Accordingly, the cases being C.R.A. No. 529 of 2005, C.R.A. No. 603 of 2005, C.R.A. No. 496 of 2005, C.R.A. No. 480 of 2005 and C.R.A. No. 619 of 2005 be allowed. The impugned judgment dated 4th July, 2005 and order dated 5th July, 2005 passed by the learned Trial Court be set aside. 42. IN our opinion, the appellants cannot be denied the benefit of doubt. The appellants, namely, Dr. Subha Ranjan Khanra, Sunil Ganguly and Abbas Ali Karikar be held not guilty of the offences punishable under Sections 302/34 and Sections 302/120B of I.P.C. The appellant, Dr. Rahamat A. Alam, be also held not guilty of the offence punishable under Sections 302/120B of I.P.C. The appellant, Apurba Mohan Sanyal, be also held not guilty of the offence under Section 201 of I.P.C. and be acquitted accordingly. The appellants, accordingly, be released forthwith and if on bail, be released from such bail bonds at once. The case being C.R.R. No. 2201 of 2005 fails and be dismissed. Rule issued be discharged. The appellants, accordingly, be released forthwith and if on bail, be released from such bail bonds at once. The case being C.R.R. No. 2201 of 2005 fails and be dismissed. Rule issued be discharged. This consequently disposes of any pending application. Send a copy of this judgment along with the LCR to the learned Court of District and Sessions Judge, Krishnanagar, Nadia at once. Criminal department is directed to supply certified copy of this judgment, if applied for, on priority basis.