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2012 DIGILAW 536 (CAL)

State of West Bengal v. Kiriti Pal

2012-06-20

Ashim Kumar Roy, Asim Kumar Ray

body2012
Judgment : Ray, J. : The Death Reference for confirmation of sentence of death passed against the convicts Kiriti Pal, Siddique Mia and Mustaque Mia and the criminal appeals by the said convicts and Durga Sutradhar against their conviction and sentence arise out of a judgement and order passed in Sessions Trial No.5 of November, 2009 corresponding to Sessions Case No. 170 of 2009 by learned Sessions Judge, Birbhum on 26.07.2011 and 29.07.2011 and for charges under Sections 302/34/376(g) of the Indian Penal Code, under Section 25(i)(a)(b)/35 of the Arms Act and under Section 120B of the Indian Penal Code. 2. Filtering out unnecessary details the prosecution case emerging from the records runs as follows:- One Swapan Mondal (P.W.1) lodged a complaint with Sadaipur Police Station on 12.11.2008 around 9.45 hours stating therein that at about 7 a.m. on hearing from others that a dead body of an unknown female was lying at Babuibona Jungle, he went to the spot around 7.30 a.m. and found that a dead body of an unknown female was lying there with marks of injury on the forehead, eyes and face. The neck of the dead body was tied with the Saree and the other end of the Saree was tied to a Sonajhuri tree. On the basis of such complaint Sadaipur P.S. Case No. 74 dated 12.11.2008 under Section 302 was registered for investigation. Subsequently, the investigation was taken over by the C.I.D, West Bengal. On completion of the investigation charge-sheet under Sections 302/120B/34/376(2)(g) of the IPC read with Section 25/27/35 of the Arms Act was submitted against appellants, namely, Kiriti Pal, Siddique Mia, Mustaque Mia and Durga Sutradhar. 3. The case was committed to the learned Court of Sessions after observing all the statutory formalities. Charge under Section 120B of the IPC was framed against four convicts/appellants. Charge under Sections 302/34 and Section 376(2)(g) of the IPC and under Section 25(i)(a)(b)/35 of the Arms Act were framed against convicts/appellants Kiriti Pal, Siddique Mia and Mustaque Mia. 4. In order to prove the case, the prosecution examined as many as 38 witnesses while the defence adduced no witness on its behalf. Apart from oral evidence prosecution relied upon documents and other materials which were exhibited as documentary evidence. 4. In order to prove the case, the prosecution examined as many as 38 witnesses while the defence adduced no witness on its behalf. Apart from oral evidence prosecution relied upon documents and other materials which were exhibited as documentary evidence. After recording of evidence of the prosecution witnesses, the learned Sessions Judge explained to the convicts/appellants the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statement as required under Section 313 of Cr.P.C. 5. The specific case of the defence was that of false implication and innocence and denial of the allegations so levelled against the appellants. 6. On appreciation of the evidence adduced by the prosecution and documents brought on record the learned Sessions Judge found and held that the prosecution has been able to bring home the charge under Section 120B of IPC against all the four appellants/convicts, the prosecution has been able to bring home the charge under Section 376(2)(g) of IPC and under Section 302 of IPC against Kiriti Pal, Siddique Mia and Mustaque Mia and has further been able to prove the charge under Section 25(i)(a)(b) of the Arms Act against accuseds/appellants/convicts Kiriti Pal, Siddique Mia and Mustaque Mia. They were found guilty. Kiriti Pal, Siddique Mia and Mustaque Mia were sentenced to death for conviction under Section 302 of the IPC. They were sentenced to suffer imprisonment for life for conviction under Section 376(2)(g) of the IPC and to pay a fine of Rs. 5,000/- each in default to suffer R.I. for a further period of six months. Kiriti Pal, Siddique Mia, Mustaque Mia and Durga Sutradhar were sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- each in default to suffer R.I. for a further period of six months for conviction under Section 120B of the IPC. Kiriti Pal, Siddique Mia and Mustaque Mia were also sentenced to suffer R.I. for three years and to pay fine of Rs. 5,000/- each in default to suffer R.I. for a further period of six months for the conviction under Section 25(i)(a)(b) of the Arms Act. 7. Feeling aggrieved by the said judgment and order of conviction and sentence Kiriti Pal, Siddique Mia and Mustaque Mia filed criminal appeal No. 471 of 2011 while Durga Sutradhar filed criminal appeal No. 484 of 2011. 7. Feeling aggrieved by the said judgment and order of conviction and sentence Kiriti Pal, Siddique Mia and Mustaque Mia filed criminal appeal No. 471 of 2011 while Durga Sutradhar filed criminal appeal No. 484 of 2011. The death sentence imposed upon Kiriti Pal, Siddique Mia and Mustaque Mia was also referred to this Court for confirmation under Death Reference case No.3 of 2011. 8. Mr. Sekhar Basu, learned Senior Counsel appearing on behalf of the appellants Kiriti Pal, Siddique Mia and Mustaque Mia has contended that the evidence of prosecution witness No.6 Anju Maji cannot be accepted if the same is taken for consideration on a careful reading of evidence of PW. 7, PW. 37 and P.W. 38 conjointly. Prosecution witness No. 37 Sub-Inspector Santosh Kumar Ghosh, the first I.O. of the case examined prosecution witness No.6 at the first possible opportunity and at that time PW.6 did not divulge that the deceased left her residence by the motorcycle of appellant No.1 Kiriti Pal. She has stated so at the time of her examination by prosecution witness No. 38, CID Officer. Such conduct on the part of PW. 6 renders her evidence unworthy of acceptance. 9. He has contended that the deceased had received numerous phone calls and some of those phone calls were made even from Suri P.S. but no investigation was conducted in respect of the same. This case is based on circumstantial evidence and in such a case motive assumes much importance but the prosecution has failed to bring out any motive which would indicate any reason to show that Kiriti Pal & others have committed the alleged crime. 10. He has contended further that a pair of gents chappal and a belt along with other articles were recovered from the place of occurrence but there is no evidence to prove the presence of the appellants at the seen of crime as no effort was made to collect the foot prints of the appellants. The forensic report regarding the seized chappal and belt drew blank and nothing incriminating could be detected. Mere recovery of the wearing apparel and voter identity card per se without connecting the same with the offence as alleged renders the recovery completely meaningless and is a fruitless exercise where it is an admitted and accepted fact that Kiriti Pal was known to the victim and they shared relationship between themselves. Mere recovery of the wearing apparel and voter identity card per se without connecting the same with the offence as alleged renders the recovery completely meaningless and is a fruitless exercise where it is an admitted and accepted fact that Kiriti Pal was known to the victim and they shared relationship between themselves. Thus, it is not unnatural that personal belongings of Kiriti Pal would be found in the room of deceased. 11. The recovery of wooden butts alleged to be the parts of improvise fire arms from beneath the rocks of Chandrabhaga river (pursuant to the statement made by the Appellants while in custody) does not improve the case of the prosecution as no effort was made by the Investigating Officer to prove that wooden butts were indeed a part of the fire arms which was seized. The wearing apparel of the victims purportedly were stained with marks of blood. But the blood group could not be detected to ascertain the blood group of either of the deceased or the accused persons. The evidence of P.W. 29, Autopsy Surgeon has been taken as the only evidence of gang rape though the inquest report negates the story of rape as a sanitary napkin was found over the private parts of the victim which indicates that at the relevant point of time the victim was on menstrual cycle. The evidence of medical expert is only opinion evidence and the same is to be considered like any other evidence of witnesses. 12. He has contended further that the phone calls details of the Appellants as well as that of Anjali Goswami as produced by the prosecution cannot be of any help as the content of conversation between them has not been proved at all. Alleged diverted phone call of Appellant Durga Sutradhar to the phone of S.I. Aniruddha Chatterjee has not been produced. Mere talking to each other over phones that too, all being people of the same area, cannot be termed incriminating in anyway and cannot per se give rise to an inference of hatching up of a conspiracy between the accused persons. The recovery of ornament from the possession of appellant Nos. Mere talking to each other over phones that too, all being people of the same area, cannot be termed incriminating in anyway and cannot per se give rise to an inference of hatching up of a conspiracy between the accused persons. The recovery of ornament from the possession of appellant Nos. 1 and 3 more than two months later could not satisfactorily prove that the appellant had indeed committed the offence as alleged specially when-such ornaments were also not placed on T.I. parade before the relatives of Anjali Goswami and even in Court the relatives of Anjali Goswami did not identify the said ornaments which were allegedly recovered pursuant to the statement made by the accused persons. 13. Mr. Basu has contended that the life style of the victim would indicate that she used to mix with various people for various reasons and thus after leaving her house she was only in the company of appellant No. 1 and none else cannot be presumed straightway. The 164, Cr.P.C. statement of prosecution witness No. 16 Sarajit Saha was recorded by the learned Judicial Magistrate of Alipur though the statement of other witnesses and accused persons were recorded at Suri, the District of Birbhum. The evidence on record could not establish any act committed by the appellants. The judgment is erroneous and liable to be set aside. There is no evidence on record to show that conspiracy was hatched up at Suri and Md. Bazar. No evidence too to substantiate the charge under Section 302 of IPC. The record reflects no evidence to show the presence of three persons/appellants at the spot so that they may be framed for the charge under Section 376(g) of the IPC. The formal charge displays that the countrymade short firearm was used to culminate the offence but there is no evidence as to who was in possession of short firearm as alleged. There is no charge saying that the butt of the short firearm was used at the time of commission of the offence. 14. Regarding sentence of death Mr. Basu has contended that this case is not the rarest of the rare case that is why death penalty cannot be called for specially because conviction solely rests on circumstantial evidence which is also unworthy to be accepted. 15. Mr. Basu has relied upon the following decisions in support of his contentions. 14. Regarding sentence of death Mr. Basu has contended that this case is not the rarest of the rare case that is why death penalty cannot be called for specially because conviction solely rests on circumstantial evidence which is also unworthy to be accepted. 15. Mr. Basu has relied upon the following decisions in support of his contentions. (i) Indrajit Singh and Another v. State of Punjab, reported in 1991 Cr LJ 2191 (ii) Madhumoy Madhusudan Baul v. State of West Bengal, reported in 1992 SCC (Cri) 909 (iii) Jaswant Gir v. State of Punjab, reported in (2006)1 SCC (Cri) 579 (iv) Ramreddy Rajeshkhanna Reddy v. State of Andhra Pradesh, reported in (2006) 3 SCC (Cri) 512 (v) State of Goa v. Sanjoy Thakur & Ors., reported in (2007) 2 SCC (Cri) 162 (vi) Mayur Panabhai Shah v. State of Gujrat, reported in AIR 1983 SC 66 (vii) AIR 1941 Privy Council 16, reported in (2011) 6 Supreme 173 - Nitinbhai Saevatilal Shah & Anr. (viii) Nilish Dinkar Paradhkzar v. State of Maharashtra, reported in (2011) 2 C CrLR (SC) 269. (ix) Thangaiya v. State of Tamil Nadu, reported in 2005 SCC (Cri) 1284 (x) Jgriti Devi v. State of Himachal Pradesh, reported in (2010) 2 SCC (Cri) 245 (xi) Reported in (2012) 1 SCC (Cri) 359 - Haresh Mohandas Rajput v. State of Maharashtra. 16. Mr. Debasis Roy learned P.P. appearing for the state has contended that the evidence on records particularly the evidence of PW. 6, PW. 7 and PW. 10 speak about the departure of the victim in the company of appellant Kiriti Pal. There is evidence of Autopsy Surgeon/PW. 29 regarding the injury sustained by the victim on her person and the same suggests/proved forcible sexual intercourse. There is evidence too from the Autopsy Surgeon that one of the injuries sustained by the victim could have been caused by hard blunts substance like that of butt of a couritrymade short firearm. There is evidence to the effect that one improvised countrymade single shotter firearms was recovered pursuant to the statement of appellants Kiriti Pal, Siddique Mia and Mustaque Mia. 17. There was conspiracy between the appellants to eliminate Anjali Goswami and as such the absence of proof of ownership of shirt, chappal and belt will not tell upon the prosecution case and thereby the prosecution case cannot collapse. The impugned judgement may not be interfered with. 17. There was conspiracy between the appellants to eliminate Anjali Goswami and as such the absence of proof of ownership of shirt, chappal and belt will not tell upon the prosecution case and thereby the prosecution case cannot collapse. The impugned judgement may not be interfered with. It may be affirmed. 18. It is not disputed that the alleged incident of murder was not witnessed by anyone. The case is based on circumstantial evidence, specially the evidence of last seen. It is well settled principles that in such type of cases the evidence on record and the materials thereto should connect the accused person with the crime and it should point to the conclusion that it was the accused and the accused only who was the perpetrator of the crime and the evidence adduced was in compatible with his innocence. Therefore, the only reasonable inference from the proved fact should be that the accused person has committed the murder. In such circumstances, conviction can only be based on such circumstantial evidence. 19. The victim Anjali Goswami got married with one Karuna Sindhu Goswami of Mohammad bazar. Karuna had a line hotel at Mohammad bazar. He died in a road accident in the year 2000. Their daughter committed suicide in the year 2006 and son met with road accident and died in the year 2008. Anjali started looking after the business of the line hotel of her husband but subsequently leased out the same to one Bhagyadhar Dhibar, prosecution witness No.7. She started a beauty parlour and cloth shop at Md. Bazar which was subsequently shifted to Suri in a rented accommodation of one Swapna Chakraborty, wife of Manas Chakraborty, prosecution witness No.10. Appellant Durga Sutradhar was engaged by Anjali to run her beauty parlour. Anjali purchased a house at Nutan Pally at Suri and started residing there. Appellant Kiriti Pal became acquainted with her, developed intimacy and used to visit Anjali's residence occasionally. 20. The aforesaid factum stands proved by the evidence on record of the prosecution witness No.3. Prosecution witness No.3 Tarun Mukherjee is the brother-in-law/Jamaibabu of Anjali. He has stated about the marriage of Anjali, death of Karunasindhu, about the line hotel and so on as narrated in the last para. Appellant Kiriti Pal has stated in course of his examination under Section 313 of Cr. P. C. vide answer to question Nos. Prosecution witness No.3 Tarun Mukherjee is the brother-in-law/Jamaibabu of Anjali. He has stated about the marriage of Anjali, death of Karunasindhu, about the line hotel and so on as narrated in the last para. Appellant Kiriti Pal has stated in course of his examination under Section 313 of Cr. P. C. vide answer to question Nos. 37,38,39,40 and 42 about the marriage of Anjali with Karuna Sindhu of Md. Bazar, death of Karuna Sindhu and about the line hotel business. He has also stated about his knowledge that the said line hotel was leased out to Bhagyadhar Dhibar. He has also admitted in his examination under Section 313 of Cr. P.C. that Anjali had a beauty parlour in the house of Swapna Chakraborty and Durga Sutradhar used to work at the beauty parlour. There is specific answer of appellant Kiriti saying that Anjali purchased house at Nutan Pally, Suri and started residing there and he used to visit Anjali's house. Kiriti has further stated in his examination under Section 313 of Cr. P. C. vide answer to question No. 264 that "Anjali Goswami was a beautiful lady. I had a good and sweet relation with her. I had also physical relation with her". 21. It is the case of the prosecution that Anjali Goswami, victim left her residence on 11.11.2008 with accused/appellant No.1 Kiriti Pal by his motorcycle for the last time. We are to see as to what is the evidence on record covering the said case of the prosecution. Prosecution witness No.6 Anju Maji, a tenant of Anjali Goswami has stated in her evidence. "Anjali Goswami is no more in the world. On 11.11.2008 she was murdered. As usual our landlady - Anjali Goswami went out of her house for opening her cloth shop in the morning and on that day in the afternoon she came back with the accused Kiriti Pal by his motor cycle. At that time I was sitting outside of our rented room. Didi-Anjali Goswami called me at her room in the first floor. Accordingly, I went to her room. I helped her for wearing Sari by holding kunchi. She used to like 'dressing'. She wore' her gold ornaments. Thereafter she came down from her room. At that time I was sitting outside of our rented room. Didi-Anjali Goswami called me at her room in the first floor. Accordingly, I went to her room. I helped her for wearing Sari by holding kunchi. She used to like 'dressing'. She wore' her gold ornaments. Thereafter she came down from her room. Then, I asked Didi "where are you going?" In reply - Didi Anjali Goswami told me "she will go to Rajnagar Sishal Farm for attending the function of Prosenjit and Chiranjeet". Then, I asked about her time of return and she told me "she will come back at night around 9/9-30 p.m." I had no talk with her thereafter, Didi (Anjali Goswami) left her house with Kiriti Pal by her motorcycle. In that night Didi - Anjali Goswami did not come back but hearing the horn of motorcycle at about 10/10-30 p.m. I came out of my room with a view to open our main gate. Didi Anjali Goswami was not found but the accused Kiriti Pal asked me as to whether the key of my Didi's room is with us. I answered in the negative and asked the accused Kiriti Pal about my Didi - Anjali Goswami. Then Kiriti Pal told me "Didi is making a gossip with one person. He will take her later." By saying it the accused Kiriti Pal left the place." 22. Prosecution witness No.6 Anju Maji was cross - examined from the side of the defence and in course of cross - examination she has stated that she saw accused Kiriti Pal in the room of Anjali Goswami several times. Kiriti Pal used to stay in the room/house of Anjali Goswami very cordially. Kiriti Pal used to visit Anjali's house by driving his motorcycle. He used to keep his motorcycle beneath the staircase leading to the first floor. She followed Anjali from the first floor while she left her house at the fateful night. Accused Kiriti Pal was also found with her. She was behind Anjali and closed the entrance gate of her portion by bolting the same from inside. She has not seen any other man except Kiriti Pal in the house of Anjali during her lifetime. In the night of 11.11.2008 accused Kiriti Pal called me as he found the entrance door of Anjali bolted from inside. She was behind Anjali and closed the entrance gate of her portion by bolting the same from inside. She has not seen any other man except Kiriti Pal in the house of Anjali during her lifetime. In the night of 11.11.2008 accused Kiriti Pal called me as he found the entrance door of Anjali bolted from inside. She was called by accused Kiriti Pal for opening the entrance door leading to the upstairs of Anjali's portion. She told the accused Kiriti Pal since Anjali is not on the upstair so she shall not be able to open the entrance gate. Thereafter accused Kiriti Pal left the place. She has not seen accused Kiriti Pal on and from 12.11.2008. She has also stated in her cross - examination that she knows the place Raj Nagar. Police take her to Rajnagar School for identifying the accused Kiriti Pal. She went to teacher's room of the school and at that time 5/6 teachers were present. The police officer who took her to Rajnagar School 3 days after the incident, as alleged inspected the register and other papers of that school in presence of all the 6 teachers and on that day it came to light that there was no teacher named Kiriti Pal in the said school. 23. Prosecution witness No. 10, Manas Chakraborty has stated in her evidence that on 11.11.2008 at about 5-30 p.m. he found Anjali sitting on the veranda of the first floor of his house and he demanded rent from her and then she got down from her beauty parlour. He has stated further in his evidence that when he asked for payment of rent", Anjali Goswami, by showing her hand, stated that she was coming and thereafter found the victim as the pillion rider of the motorcycle which was standing near the shop of Kolkata Bazar. He has also stated that the motorcyclist was a man of medium physique, scanty hair on head aged below 56 years. 24. On analysis of the evidence of prosecution witness No. 10 we find that Anjali Goswami, left her beauty parlour in the company of a person at 5-30 p.m. that is around evening and that part of evidence stands as it is. We find from the evidence of PW. 24. On analysis of the evidence of prosecution witness No. 10 we find that Anjali Goswami, left her beauty parlour in the company of a person at 5-30 p.m. that is around evening and that part of evidence stands as it is. We find from the evidence of PW. 6 on its close scrutiny that on 11.11.2008 in the afternoon she was sitting outside of their rented accommodation and found her landlady Anjali Goswami to arrive with accused Kiriti Pal by his motorcycle. PW. 6 has stated that Anjali Goswami went out of her house for opening of her cloth shop in the morning and came back with accused Kiriti Pal on the date of incident in the afternoon by his motor cycle. We further find that Anjali and Kiriti went upstairs that is the residence of Anjali and Anjali called PW. 6 for helping her for wearing Saree and after wearing some gold ornaments Anjali went out with Kiriti by his motorcycle after stating that she was going to attend a function of Prosenjit and Chiranjeet at Rajnagar Sishal Farm. Therefore, we find unambiguous evidence of PW. 6, a tenant of victim, who saw the victim in the company of accused Kiriti Pal, in and around 6-30 p.m. on 11.11.2008. 25. The evidence of prosecution witness No.10, if read taking the same by the side of the evidence of prosecution witness No.6 then a clear and non-distorted picture comes out. We find that the man in the company of whom the victim left her beauty parlour by motorbike as a pillion-rider was none but Kiriti Pal. She arrived at her house with Kiriti Pal by motorbike soon after her departure from beauty parlour. She dressed herself with the assistance of PW. 6 and left with Kiriti Pal by that motorbike saying she was going to attend a function at Rajnagar Sishal Farm. She was seen last alive in the company of Kiriti Pal. 26. The evidence of prosecution witness No.6 reflects that Kiriti Pal came back alone around 10/10-30 p.m. on 11.11.2008 to the house of victim and has asked prosecution witness No.6 as to whether she had the key of the room of victim when PW. She was seen last alive in the company of Kiriti Pal. 26. The evidence of prosecution witness No.6 reflects that Kiriti Pal came back alone around 10/10-30 p.m. on 11.11.2008 to the house of victim and has asked prosecution witness No.6 as to whether she had the key of the room of victim when PW. 6 replied in the negative and at the same time he asked Kiriti Pal about the where about of Anjali Goswami when Kiriti Pal told her that she was making gossip with one person and he would take her later and thereafter left the place. 27. We may now go through the evidence of PW. 9 Chameli Banerjee, elder sister of victim. Chameli has stated in her evidence that Anjali was her younger sister and she used to perform musical programmes as a singer. On 7.11.2008 Anjali went to her house at Katwa and around 10-30 p.m. received a phone call and became restless and to her query told that she will have to leave Katwa in the early morning for attending a musical programme at Rajnagar High School. 28. The incident happened on 11.11.2008. Sadaipur Police Station took up investigations immediately on receipt of the FIR lodged by prosecution witness No.1, Swapan Mondal on 12.11.2008 at about 9-45 hours. The investigation of the case was taken over by CID for obvious reason on 03.12.2008. The statement of prosecution witness No.6 was recorded by the police officer of Sadaipur Police Station that is first Investigation Officer PW. 37 on 12.11.2008 and it has been contended by the learned Counsel of the appellants that at the time of such recording PW. 6 has not stated that the victim left her house with Kiriti Pal by his motorcycle around evening. PW. 6 was cross examined touching the said point and the same may be quoted here under: "Not a fact that the statement made before the police on 12.11.2008 does not contain that accused Kiriti Pal came in the evening and Didi called me and Didi left her house with accused Kiriti Pal by motorcycle in the evening." On plain reading of the aforequoted evidence of PW. 6 it appears that the attention of PW. 6 it appears that the attention of PW. 6 was not drawn for the purpose of contradictions in view of the provisions laid down of Section 145 of the Indian Evidence Act, 1872 and in the manner prescribed under Section 162 of Cr. P.C. 29. We may look the relevant part of the evidence of prosecution witness No. 37 Sub-Inspector Santosh Kumar Ghosh, the first Investigation Officer. The said portions of the evidence is as follows : "Witness Anju Maji (PW.6) stated to me that many unknown men folk used to visit Anjali Goswami (Objected to by prosecution). The witness also stated to me that to her query regarding name and phone Number of a person visiting her that the same was not known to her (objected to by prosecution). The witness also stated to me that she had not notice the complexion, stature of a person (objected to by prosecution)." 30. On close look of the above - noted evidence on record it appears that nothing was asked to prosecution witness No. 37 at the time of his cross-examination on behalf of appellants Kiriti Pal and others as to whether prosecution witness No.6 stated to him that she had found victim going out with accused Kiriti Pal by his motorcycle around evening on 11.11.2008. So we are not in a position to come to an agreement with the argument advanced by Mr. Basu touching the aforesaid point. On the contrary, we find that prosecution witness No.6 at the time of her cross examination has stated further that she had not seen any person except the relative of the victim, accused Kiriti Pal and two maid servants in her house during the tenure of two and half years. On close scrutiny of the evidence of PW. 6, we find it judicious to express that the same inspires confidence and worthy to be accepted. We get convincing evidence from the record that Kiriti Pal took the victim from her residence by his .motorcycle around evening on 11.11.2008, which covers the winter season of the year. 31. The dead body was recovered in the early hour in an around 7 A.M. on 12.11.2008 from a jungle locally called as Babuibona Jungle, 25 kms. away from victim's house. The sketch map of the place of occurrence (Exbt. 31. The dead body was recovered in the early hour in an around 7 A.M. on 12.11.2008 from a jungle locally called as Babuibona Jungle, 25 kms. away from victim's house. The sketch map of the place of occurrence (Exbt. 41) shows that there is motorable road through the jungle and the same is connected with Rajnagar - Suri Road. It is an isolated place. It is hardly possible to cover such distance from the house of victim overnight except with the help of vehicle. Therefore, we find it probable that the victim was taken to the place of occurrence by motorcycle. There is evidence that the victim was murdered sometime between 7.00 P.M. to 10.00 P.M. in that night. On overall scrutiny of the evidence on record it is thus apparent that the victim was last seen alive with Kiriti Pal and as such, it was incumbent on the part of Kiriti Pal to provide an explanation as to what happened to the victim and how he had parted company. However, Kiriti Pal had provided no such explanation and he remained silent over the matter. 32. There is specific evidence to show close relationship between Kiriti Pal and victim. The evidence of prosecution witness No. 20 and prosecution witness No. 21 who are witnesses to the seizure of wearing apparel, voter identity card etc. of Kiriti Pal from the living room of the victim. Appellant Kiriti Pal has not provided any explanation as to how such article of daily use belonged to him had been found in the living room of the victim and in the absence of any such explanation the only presumption arises that there had a close relationship between the victim and accused Kiriti Pal. Furthermore, it appears from the record that Kiriti Pal in course of his examination under Section 313 of Cr. P.C. in response to question Nos. 95 and 96 has admitted intimacy with the victim. The same has been stated by him categorically to answer question No. 264. However, in response to question No. 47, Kiriti Pal has stated that he had not gone to the house of Anjali Goswami in the evening of 11.11.2008. The said statement is contrary to the evidence of PW. 6 however it would be found that on cross-examination the evidence of PW. However, in response to question No. 47, Kiriti Pal has stated that he had not gone to the house of Anjali Goswami in the evening of 11.11.2008. The said statement is contrary to the evidence of PW. 6 however it would be found that on cross-examination the evidence of PW. 6 could not be shaken and in such circumstances, it is apparent that Kiriti Pal has taken a false plea. This plea taken by Kiriti Pal be treated to be as additional links to complete the chain of circumstantial evidence. 33. The victims appear to have stout built and healthy physique which we find from the inquest report (Ext. 2) and photographs (Exts. 7 & 8). She was 5'3" in height vide post mortem report (Ext. 27). Her neck was tied with her Saree and the other end of the Saree was tied with an Eucalyptus tree. It is highly improbable that appellant Kiriti alone was able to over power the victim and tied her neck with her own Saree. It is highly unlikely that a single person not only forcibly dragged her to the place of occurrence from the road, assaulted her on her face by hard blunt substance and at the same time tied her neck with her own Saree and the other end of the Saree tied with the tree. Therefore, the questions automatically comes in as to who were those other persons to assist the accused Kiriti to culminate the murder of the victim. 34. Charge under Section 302 of IPC has been framed against accused Kiriti Pal, Siddique Mia and Mustaque Mia. Now, we are in need to see as to what evidence is there on record to connect Siddique Mia and Mustaque Mia. The involvement of Siddique. Mia and Mustaque Mia transpires in course of investigation. They as well as Kiriti were taken to police custody and examined by the Investigating Officer, PW. 38. Their statements were recorded under Section 161 of Cr. P.C. They led Investigation Officer to Chandrabhaga River and from between the rocks on the bank of the said river just beneath the river bridge one improvised countrymade single shorter pipe gun measuring about 10" (approx.) having barrel, trigger, firing pin and iron butt was recovered on 23.01.2009. The wooden portion of the butt was detached (Seizure List is Exbt. 23). The wooden portion of the butt was detached (Seizure List is Exbt. 23). Subsequently, following their further interrogation in police custody and statements, they were taken to the place of occurrence by the Investigating Officer and in pursuance of their statement two blood stained wooden butt of countrymade shot gun were recovered. It is the prosecutions case that the butt of the firearm was used to assault the victim and as a result she sustained injury on her face. 35. With regard to Section 27 of the Indian Evidence Act, 1872 what is important is discovery of the materials object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offences was also committed by the accused. In fact, thereafter burden lodged on the prosecution to establish a close link between discovery of the materials object and its use in the commission of the offences. What is admissible under Section 27 of the act is the information leading to discretionary and not any opinion framed on it by the prosecution Mustakin Sirajul v. State of Rajasthan, 2011 Cri LJ 4920. 36. Prosecution witness No. 23 has stated in his evidence that "on 23.01.2009 I accompanied my senior officer towards village Saluka, near the bridge over Chandrabhaga river a countrymade small firearm was seized under a seizure list which I signed. This is my signature in the seizure list (signature is marked Ext. 23/1). Accused Kiriti Pal, Siddique Mia and Mustaque Mia disclosed that they had thrown out the firearm at that place. They were present at the time of seizure of the firearm from the. place. Signatures of the accused persons were also taken in the seizure list." 37. The seized countrymade firearms was identified by him. He also identified the butt and the accused persons in course of his evidence. Prosecution witness No. 38, the I.O., Inspector Ardhendu Sekhar Pahari has stated that "on 23.1.2009 pursuant to the statement made by accused Kiriti Pal, Siddique Mia and Mustaque Mia and as led by them I went to Chandrabhaga river bridge near village Saluka under Rajnagar P.S. as led by those three accused persons and after conducting search with the help of the villagers I recovered and seized one improvised countrymade single shorter pipe gun measuring about 10" (approx.) having barrel, trigger, firing pin and iron butt. It was found that the wooden portion of the butt was detached. It was properly sealed and labeled in presence of witnesses. This is the seizure list in connection with the recovery and seizure of the aforesaid firearm prepared and signed by me. (Seizure List is marked as Ext. 23/4). This is my signature in the seizure list. (The signature of the witness in the seizure list is marked as Ext. 23/5). Seizure list also bears the signature of witnesses and the three accused persons. This is that seized improvised firearms. (The witness identifies Mat. Ext. XVI)." 38. The Investigating Officer Inspector Pahari has stated in his evidence that "the accused persons were again interrogated by me on 28.1.2009. On 28.1.2009 I again went to the P.O., i.e., Babuibona jungle with the three male accused persons pursuant to statements of accused persons, namely Kiriti Pal, Siddique Mia and Mustaque Mia. They led us to Babuibona jungle under Kormakal Mouza. As shown and identified by them I seized - one blood stained part of a wooden butt which seems to be a part of wooden butt of a shotter pipe gun; another blood stained part of wooden butt of the same nature fixed with an iron screw in presence of witnesses under a Seizure list. This is that seizure list prepared and signed by me. (The seizure list is marked as Ext. 25/2). This is my signature in the seizure list. (The signature of the witness is marked as Ext. 25/3). The seizure list also bears the signatures of the witnesses and three male accused persons. I also examined the seizure witnesses, namely, Salauddin Khan, Sk. Mujibar, Basudeb Chatterjee and A.S.I. Amar Singh Sardar and recorded their statement u/s 161 of Cr. P.C. These are the wooden butts of the firearm seized by me. (The witness identifies Mat. Ext. XVII collectively)." 39. The countrymade firearm and the butt were sent to Forensic Science Laboratory (FSL) for the purpose of examination. Description of the firearm as we find from the FSL report (Exbt. 53) is that : "The packet Z contained one break open, single shot improvised pistol of overall length = 9.8"; barrel length 5.9" and bore diameter at muizzle = 0.33". The firearm, marked here as Exh. z was without its grip-plates. Description of the firearm as we find from the FSL report (Exbt. 53) is that : "The packet Z contained one break open, single shot improvised pistol of overall length = 9.8"; barrel length 5.9" and bore diameter at muizzle = 0.33". The firearm, marked here as Exh. z was without its grip-plates. A fixing pin was found fixed normally at the top rear corner through both the faces of the grip frame. One signed paper label was found attached to its barrel. Each of the envelopes, D-1 and E-1 contained one handgun wooden grip plate of size, 3.2"x1.2". Each had a central hole which were marked here as H1 and H respectively. The hole, H1 was threaded while, H was smooth and wider. Each of D-1 and E-1 had another hole marked here as, h1 and h respectively, which were placed at their top rear corner. One screw of length-1 was found fitted loosely through the hole, H1 the grip plate. E-1. One signed paper label was found inside each envelope, D-1 and E-1." 40. The result of the examination is as follows:- "On assembling the two grip plates, D-1 and E-1 on the right and the left faces of the grip frame, it was found that: The orientations of the two plates matched with those on the respective faces of the frame. The curvatures and the angles of different elements of their contours matched with those on the corresponding elements on either side of the grip. The fixing pins on either side of the grip corresponded to the two holes, h1 and h on the two plates D1 and E 1 all the way through their depths. The Central holes H1 and H on the plates D-1 and E1 corresponded to each other in a position where the screw (1") could be fastened at the threaded hole, H1 of the plate. D-1 all the way through to its depth with the head of the screw perfectly set on its groove on the outersurface of the other plate, E-1, thus, securing the two plates together with the grip frame placed in between. Above observation together with the similarities of wear and tear and presence of characteristic impressions on the corresponding surfaces showed an exact physical matching of the two plates on either side of the frame. The pistol, Exh. Above observation together with the similarities of wear and tear and presence of characteristic impressions on the corresponding surfaces showed an exact physical matching of the two plates on either side of the frame. The pistol, Exh. Z was found designed to fire 315"/8 MM sporting rifle ammunition. Traces of firing were detected inside it. Test Firing: One round of 315"/8 MM sporting rifle ammunition, Exh. C2, received here in connection with a separate case. 3232/08 was fired as test through the pistol, Exh. z in this laboratory firing chamber on 13.3.2009 applying standard methods. On the basis of above examinations and observations, following conclusions were made. The pistol, Exh. z was in working order. It was fired previously. The grip plates, Exh. D-1 and E-1 were originally fitted at the right and the left faces of the grip frame of the pistol, Exh. z. The pistol, Exh. z was a firearm as defined in Arms Act." Blood was detected on the seized wooden butt but the same was insufficient for Serological Test. (Ext. 56) 41. The information leading to the discovery of the countrymade firearms and its butt from the bed of Chandrabhaga River and the place of occurrence respectively have been properly proved and exhibited. The motorcycle of the accused persons Siddique Mia bearing No. WB-54B/8245 and Kiriti Pal bearing No. WB 54D/8148 have been seized and the same have been marked as exhibits (Mat. Ext. XXXVIII and Mat. Ext. XXXIX) respectively. They have not challenged their ownership of the afore-noted seized motorcycles. 42. The evidence on record both oral and documentary reflect that mobile phone Bearing No. 9232589186 of accused Kiriti Pal, mobile phone No. 9735862773 of Saraswati Pal, wife of accused Kiriti Pal, mobile phone No. 9932345230 of accused Siddique Mia, mobile phone No. 9932705533 of accused Mustaque Mia and mobile phone No. 9735185359 of accused Durga Sutradhar were seized during investigations. The ownership of the seized mobile phones have not been disputed and challenged by the aforenamed accused persons/appellants. The Evidence on record disclosed that they were the registered allottees of the respective SIM cards of those mobile phones (Ext. 30/regarding Kiriti Pal, Ext. 31/regarding Mustaque Mia and Siddique Mia). 43. Ext. 30 is call details record from 11.11.2008 to 15.1.2009 in respect of mobile phone No. 9232589186. The Evidence on record disclosed that they were the registered allottees of the respective SIM cards of those mobile phones (Ext. 30/regarding Kiriti Pal, Ext. 31/regarding Mustaque Mia and Siddique Mia). 43. Ext. 30 is call details record from 11.11.2008 to 15.1.2009 in respect of mobile phone No. 9232589186. On close look of the call details during the aforesaid period it appears that appellant/Kiriti Pal made 41 calls to Durga Sutradhar in between 7.12.2008 and 15.1.2009. 44. Ext. 31 speaks that 144 calls were made from the mobile phone of Mustaque Mia to Siddique Mia. Some of the afore-noted calls were incoming calls to the mobile phone of Mustaque Mia from Siddique Mia. The call period was for the period from 2.11.2008 to 14.1.2009. Ext. 32 shows that Saraswati gave 7 calls to Anjali starting for the period from 11.07.2008 to 09.11.2008. Exbt. 34 displays that Saraswati gave 7 calls to Siddique Mia during the period from 11.11.2008 to 14.11.2008. The documentary evidence indicates that Siddique Mia made 13 calls to Saraswati during the period from 10.11.2008 to 27.11.2008. Exbt. 35 shows that Saraswati gave 38 calls to Durga Sutradhar during the period from 11.11.2008 to 20.11.2008. 45. The victim Anjali Goswami was seen last alive in the company of appellant Kiriti Pal in. the evening of 11.11.2008 and her dead body was recovered from Babuibona Jungle on the next day morning i.e. on 12.11.2008. On close checking of the phone call details which have been marked as documentary evidence it is attracted to our sight that on 11.11.2008 Saraswati gave 2 calls to Anjali. One call was at 12.55 hours and another call was at 12.58 hours and 4 calls to Siddique Mia, first call was at 9.55 hours and the last call was at 17.20 hours., On that date Siddique Mia had a telephonic conversation with Mustaque Mia around 19.19 hours and Siddique Mia had also telephonic conversation with Saraswati and the first call was around 9.55 hours and the last call was at 21.42 hours. Saraswati had a telephonic conversation too with Durga Sutradhar on that date and there were six incoming and outgoing calls. The first call was around 10.57 hours and the last call was at 17.57 hours. 46. Accused Siddique Mia and Mustaque Mia in course of their examination under Section 313, Cr. Saraswati had a telephonic conversation too with Durga Sutradhar on that date and there were six incoming and outgoing calls. The first call was around 10.57 hours and the last call was at 17.57 hours. 46. Accused Siddique Mia and Mustaque Mia in course of their examination under Section 313, Cr. P .C. have stated that they were not acquainted with Saraswati Pal and, they did not make any contact with her over phone. This part of statement give a substantive stand to the prosecution case that appellant Kiriti Pal, in fact used both the mobile phones, i.e. one standing in his own name and the other in the name of his wife Saraswati Pal. 47. The evidence on record shows that Siddique Mia and Mustaque Mia are the resident of Md. Bazar Police Station whereas appellant Kiriti Pal and Durga Sutradhar are the resident of Suri Police Station. There is nothing on record to show that they had friendly relation between them. There is no evidence further to show that they share such relation so that they were in need to connect with each other on several times on a particular date in the month of November, 2008 i.e. date of murder of victim beside the other dates. It is clear that appellant/Kiriti gave call to Anjali by using the phone of his wife Saraswati and thereafter by giving a call to Durga from the said• phone confirmed the presence of Anjali at her parlour. Appellant/ Kiriti used the said phone of his wife and was in touch with appellant/ Siddique Mia and gave a last call on that date around 5.20 p.m. (17.20 hours). It has come in evidence that Anjali left her beauty parlour in the company of a person as a pillion-rider around 5.30 P.M. (17.30 hours). 48. We have already arrived at a conclusion that the man in whose company the victim left her beauty parlour was none but the appellant/.Kiriti. Appellant/Siddique Mia gave a call to Mustaque Mia around 19.19 hours. We find clear coordination between Kiriti in one hand and Siddique on the other as we locate four phone calls of Kiriti from the phone of, his wife to Siddique on the date of incident. In turn Siddique responded to the calls of Kiriti by making eight calls (incoming and outgoing) to the phone of Saraswati. We find clear coordination between Kiriti in one hand and Siddique on the other as we locate four phone calls of Kiriti from the phone of, his wife to Siddique on the date of incident. In turn Siddique responded to the calls of Kiriti by making eight calls (incoming and outgoing) to the phone of Saraswati. This afore-noted phone calls and the circumstances as well as document are sufficient enough to display that the appellants had agreed to enter into a criminal conspiracy to do away with the life of Anjali Goswami. 49. Learned Counsel of the appellant has argued that appellants being the person of the same area might have talked between themselves. Prosecution has sought to rope in the appellant Siddique Mia and Mustaque Mia in the instant case by tracing their call details with appellant Kiriti Pal but mere calling appellant Kiriti Pal does not level the other two appellants as accomplices to the alleged crime. In fact, the call details of Kiriti Pal will indicate that other many persons used to call the appellant Kiriti Pal even before and after the incident. Therefore, it is his contention that the finding of learned judge with regard to conspiracy has no rational basis and merits consideration. 50. It has been contended further. that on the basis of call details the charge of conspiracy is unworthy of any credence specially when the content of conversation between the appellant and others have not been produced in Court to testify what was actually spoken during such conversation. The decision reported in Nilesh Dinkar Paradkar v. State of Maharashtra, (2011) 2 C Cr LR (SC) 269 has been relied on. 51. In Mohan Singh v. State of Bihar reported in (2011) 9 SCC 272 ( AIR 2011 SC 3534 ) the Apex Court has observed: "33..........The first I.O. of the case (PW.6) in his evidence also stated that during investigation mobile No. 9835273765 of Mohan Singh was found and mobile No. 9431428630 of Laxmi Singh was also found. P.W. 8 the other I.O. of the case stated that on 23.7.2005, four calls were made between the mobile phones of Laxmi Singh and Mohan Singh. Then six more calls were made by Laxmi Singh to Mohan Singh on 3.08.2005, i.e. on the day of the incident itself. The printout details of these phone calls were produced before the Court. P.W. 8 the other I.O. of the case stated that on 23.7.2005, four calls were made between the mobile phones of Laxmi Singh and Mohan Singh. Then six more calls were made by Laxmi Singh to Mohan Singh on 3.08.2005, i.e. on the day of the incident itself. The printout details of these phone calls were produced before the Court. So both the trial Court and High Court considered the evidence of PW. 6 and PW. 8 who were the investigating Officers in this case, apart from the evidence of PW. 4, other witnesses and the materials on record before coming to the conclusion. The fact that the name of registered allottees the SIM cards of these mobile phones could not be traced is not relevant in this connection. This Court finds that from para 19 onwards of the judgment by the High Court these aspects have received due consideration. The learned Counsel for the appellant relied on some judgments in support of his contention that in the facts of this case voice identification cannot be accepted. The learned Counsel relied on a judgment of this Court in the case of Nilesh Dinkar Paradkar v. State of Mahatrashtra, reported in (2011)4 SCC 143 : AIR 2011 SC (Cri) 911. In that case the voice in the telephone was tapped and then the voice was recorded in a cassette and the cassette was then played to identify the voice. Therefore, there is a substantial factual difference with the facts in the case of Nilesh (supra) and the facts of the present case. Apart from that in Nilesh (supra), the High Court acquitted A1 to A4 and this Court finds that the evidence against Nilesh was identical. Therefore, this Court held that the conclusion of the High Court in acquitting accused Nos. 1,2,3 and 4 has virtually "destroyed the entire substratum of the prosecution case" (see para 28 of the report). Since that decision was passed on tape recorded version of the voice, the principles decided in that case, even though are unexceptionable, cannot be applied to the present case." 52. This case factually stand on different footing than that of the case of Ntlesh Dinkar Paradkar v. State of Maharashtra (supra) as cited by the learned Counsel of the appellant. Since that decision was passed on tape recorded version of the voice, the principles decided in that case, even though are unexceptionable, cannot be applied to the present case." 52. This case factually stand on different footing than that of the case of Ntlesh Dinkar Paradkar v. State of Maharashtra (supra) as cited by the learned Counsel of the appellant. In this case the voice in the telephone was not tapped and recorded in a cassette and then playing the cassette afterward to identify the voice does not arise. Therefore the production of content of conversation between the appellants and others does not merit consideration. The fact that the names of registered allottees of the SIM cards of those phone Nos. have been substantially surfaced from the evidence on record. Those SIM were allotted to the appellants and victims. The evidence of prosecution witnesses and the documentary evidence regarding phone calls particularly on 11.11.2008 have not been challenged. 53. Conspiracies are not hatched in the open and are always nurtured in secrecy. In such circumstances, direct proof with regard to hatching up of a criminal conspiracy is difficult to be adduced in course of trial. In the case of Yogesh alias Sachin Jagadish Joshi v. State of Maharashtra, reported in (2008) 10 SCC 394 . In paragraph 25 at page 402 : ( AIR 2008 SC 2991 : 2008 AIR SCW 5043) the Hon'ble Apex Court laid down the following principles: "Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement." 54. In Mohd. Khalid v. State of West Bengal, reported in (2002) 7 SCC 334 . The Hon'ble Apex Court in paragraph 24 at page 354 has made the following observation. In Mohd. Khalid v. State of West Bengal, reported in (2002) 7 SCC 334 . The Hon'ble Apex Court in paragraph 24 at page 354 has made the following observation. "Conspiracies are not hatched open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence." 55. In view of the aforesaid principles we are of the opinion that the presence of conspiracy between the accused persons is to be inferred from the circumstance. The prosecution, in order to prove the existence of conspiracy, has produced call details of the appellants which reflect that all the accused persons had been in constant conversation with each other prior to the commission of the offence and subsequent thereto. The same sufficiently reflects existence of criminal conspiracy between the appellants. 56. Prosecution witness No. 29 Dr. Debasis Sarkar held post mortem examination over the dead body of Anjali Goswami. He has stated about the injuries found on the person on the deceased and opined that the death o(the victim was due to the effect of the injuries, which were ante-mortem in nature. He has categorically stated that injury No.6 could be caused by a hard blunt substance and could also be caused by striking with the butt of the short firearms. It has come through the evidence as well as admission of appellant Kiriti Pal that the Kiriti Pal had a very close relation with the deceased. He knew every details of the victim and the victim reposed confidence in him. 57. Prosecution witness No. 29 Dr. Deb'asis Sarkar, Autopsy Surgeon has stated that the, death of Anjali Goswami was due to the effect of the injuries sustained by her were ante-mortem in nature. He has also stated that the injury found in the Labia Minora of the deceased could be caused by forcible sexual intercourse on a woman and the injuries in column No.1,2,3 and 5 could be caused when a woman resist forcible intercourse upon her. He has further opined that injury No.6 could be caused by hard blunt substance and could also be caused by striking with the butt of a countrymade firearms. He has further opined that injury No.6 could be caused by hard blunt substance and could also be caused by striking with the butt of a countrymade firearms. Only relying on the injury found on the person of the victim and in her private parts as opined by doctor, it is not judicious to arrive at a decision that the victim was subjected to forcible sexual intercourse as the evidence of doctor has to be appreciated like that of any other witness. No presumption that doctor is always a witness of truth can be drawn as observed by the Hon'ble Apex Court in the decision Mayur Panabhai Shah, appellant v. State of Gujrat, reported in AIR 1983 Supreme Court 66. The Doctor's evidence of this case regarding rape cannot be taken as convincing evidence, specially when we find from the inquest report (Exbt. 2) that sanitary napkin was found over the private parts of the victim. There is no corroboration of the evidence of rape too. 58. Let us now deal with the citations tabled by the learned Counsel of the appellants. In Indrajit Singh and Another v. State of Punjab reported in 1991 Cr LJ 2191 Hon'ble Supreme Court has held that "it is well settled that in a case pending on circumstantial evidence, the prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubts. In the circumstances so proved must also be consistent only with the guilt of the accused. Among the circumstances relied upon by the prosecution, in the light of these principles we find that except the circumstances No.1, the other circumstances are not incriminating. In number of cases it has been held that the only circumstances namely that the deceased was last seen in the company of the accused by itself is not sufficient to establish the guilt of the accused." 59. In Madhumoy Madhusudan Boul v. State of West Bengal, reported in 1992 SCC (Cri) 909, the Hon'ble Supreme Court made specific observation as to why testimony of sole eye witness was unreliable. The conduct of the witness was highly unnatural and suspicious and his testimony was also contradicted by medical evidence. In Madhumoy Madhusudan Boul v. State of West Bengal, reported in 1992 SCC (Cri) 909, the Hon'ble Supreme Court made specific observation as to why testimony of sole eye witness was unreliable. The conduct of the witness was highly unnatural and suspicious and his testimony was also contradicted by medical evidence. Apart from such direct evidence the only incriminating circumstance was that deceased was last seen in the company of the accused was not considered to be sufficient to convict the accused under Section 302 of IPC. 60. In Jaswant Gir v. State of Punjab, reported in (2006) 1 SCC (Cri) 579 the Hon'ble Supreme Court held that "the evidence of last seen by itself is not sufficient to fasten guilt and the case was that the deceased was last seen by the P.W. in the company of accused/appellant. Version of P.W. about deceased having taken a lift in the vehicle of the appellant doubtful as appellant was going in a direction different from the destination of deceased and prima facie there was no apparent reason why deceased should have chosen to go in the vehicle which was proceeding in some other direction. The Court has held further that this circumstance by itself does not lead to irresistible conclusion that the appellant and his companion had killed the deceased and thrown the body in a culvert wherefrom the body was recovered. There being a considerable time gap between the deceased boarding appellant's vehicle and the time the dead body was found. In the absence any other links in the chain of circumstances appellant cannot be convicted solely on the basis of last seen together evidence even if version of P.W. in this regard is believed." 61. In Ramreddy Rajesh Khanna Reddy and Another v. State of A.P. reported in (2006) 3. SCC (Cri) 512, the Hon'ble Apex Court held that "last-seen theory 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." 62. In State of Goa v. Sanjay Thakran and Another, reported in (2007) 2 SCC (Cri) 162, the Hon'ble Apex Court held that "considerable time gap between the person seen together and the proximate time of crime the circumstance of last seen together would not be taken into account to fasten the guilt of the accused." 63. The incident happened during winter season 25 kms. away from the residence of the victim in an isolated place a jungle. The victim was last seen in the company of one of the appellants around 6-30 p.m. and the time of the murder which is coming out from the evidence on record was between 7 p.m. to 10 p.m. The dead body was recovered in the early hour of the morning of the next day. If all these backgrounds are taken together then the hypothesis that the victim was in the company of other person but not in the company of one of the appellants does not at all appears to be probable and sound. There was no considerable time gap also between the deceased boarding the motorcycle of one of the appellant's and the time when the dead body of the victim was recovered. The case in hand is not based on evidence of last seen only. There is connecting evidence of recovery of wearing apparel and voter identification card of one of the appellants from the residence of victim, recovery of motorcycles which were used in connection with the case, recovery of offending weapon and phone calls details of the appellants divulging consistent co-ordination between the appellants before and after the commission of the offence i.e. murder of the victim Anjali Goswami. 64. In view of the aforesaid principles laid down by the Hon'ble Supreme Court and the quality of evidence on record this Court finds that no assistance can be drawn from the aforesaid decisions placed from the side of the appellants. 65. 64. In view of the aforesaid principles laid down by the Hon'ble Supreme Court and the quality of evidence on record this Court finds that no assistance can be drawn from the aforesaid decisions placed from the side of the appellants. 65. In the aforesaid circumstances we have meticulously analysed the evidence on record. In our considered opinion the following circumstances form a chain of circumstances which can safely be relied upon : (i) Victim Anjali Goswami became widow and childless following tragic incidents, (ii) She became acquainted with appellant Kiriti Pal and reposed confidence on him. (iii) Kiriti Pal used to visit Anjali's residence frequently, stay and spent night there in her company though he was married and father of two children. (iv) Kiriti gave phone calls to Anjali when she was at Katwa, her sister's house. (v) Anjali left Katwa saying she was to attend a programme at Rajnagar. (vi) Kiriti gave phone call to Durga on 11.11.2008 and confirm the presence of Anjali at beauty parlour. (vii) He gave phone calls to Siddique on 11.11.2008. The last call was at 5.20 p.m. (viii)Anjali left her beauty parlour with Kiriti at 5.30 p.m. and arrived at her residence immediately thereafter by the motorcycle of Kiriti. (ix) She left her residence around evening on 11.11.2008 with Kiriti by his motorcycle saying she was going to Rajnagar to attend a function. (x) Siddique gave phone call to Mustaque at 7.19 p.m. (xi) The dead body of Anjali Goswami was recovered on the following morning in a jungle on the way to Rajnagar. (xii) Offending weapons recovered at the instance of Kiriti Pal, Siddique Mia and Mustaque Mia. (xiii) Phone calls details of the appellant display the co-ordination between them. (xiv) Appellants' failure to discharge their respective obligation during examination under Section 313, Cr.P.C. by offering plausible explanation how the victim was parted with the company of Kiriti and murdered. 66. Taking all the facts and circumstances together into account we find reason and ample reasons to opine that the same are consistent only with the hypothesis of the guilt of the appellants Kiriti Pal, Siddique Mia and Mustaque Mia for the offence punishable under Section 302 of Indian Penal Code and 25(1)(a)/27 of Arms Act and appellants Kiriti, Siddique, Mustaque and Durga for the offence punishable under Section 120B of the IPC. We, therefore, concur with the finding of the learned trial Court for the said offence. But we fail to concur with the finding of the learned Sessions Judge for the offence punishable under Section 376(2) (g) and conviction thereto. 67. For the reasons discussed above, we set aside the order of conviction and sentence passed against appellants Kiriti Pal. Siddique Mia and Mustaque Mia under Section 376(2)(g) of the Indian Penal Code. We do affirm the conviction of appellants Kiriti Pal, Siddique Mia and Mustaque Mia under Section 302 of IPC but modify the sentence of death to life imprisonment as this is not a case of rarest and rare in nature and charge under Section 376(2)(g) of IPC has not been substantiated. We do not find reason to interfere with the finding of the learned Sessions Judge regarding conviction and sentence passed against the appellants Kiriti Pal, Siddique Mia, Mustaque Mia, Durga Sutradhar under Section 120B of IPC and against Kiriti Pal, Siddique Mia and Mustaque Mia under Section 25(i)(a)/27 of Arms Act. The appeal being C.R.A. No. 471 of 2011 is, thus, allowed in part. The appeal being C.R.A. No. 484 of 2011 is dismissed and Death Reference Case No.3 of 2011 is rejected. Roy, J. : I agree.