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2014 DIGILAW 632 (CAL)

Monoj Kumar Srivastava v. State of West Bengal

2014-07-16

SHIB SADHAN SADHU, SUBHRO KAMAL MUKHERJEE

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Judgment Shib Sadhan Sadhu, J. 1) In the instant appeal the appellants have challenged the judgment of conviction and order of sentence dated 02.05.2005/03.05.05 passed by the Learned Additional District & Sessions Judge, Fast Track Court-VI, Alipore, District: South 24-Parganas in S.T. No.04(02)04/S.C. No.43(02)04 convicting them under Section 302 of the Indian Penal Code read with Section 34 of the said code and sentencing them to undergo imprisonment for life each and to pay a fine of Rs.2,000/- (Two thousand) each, in default to undergo Simple Imprisonment for 3 months each for the said offence. They were further convicted under Section 201 of the Indian Penal Code read with Section 34 of the said Code and were sentenced to undergo Simple Imprisonment for 5 years each and to pay a fine of Rs.1,000(one thousand) each, in default to undergo Simple Imprisonment for one month each for the said offence. However, both the sentences would run concurrently. 2) Put in a short frame, the prosecution case runs as under:- On 26.09.2003 at about 09.50 hours a telephonic information was lodged in Alipore Police Station that an unknown dead body was floating in Tollynalah in front of the premises No.69/1/A, Chetla Road. Such information was diarised being Alipore P.S. G.D. Entry No.2841 dated 26.09.2003 (Exbt.23). On receipt of such information police of Alipore P.S. being led by S.I. Mantu Gopal Mondal had been to 69/1/A, Chetla Road and found a dead body was floating in Tollynalah water. The said S.I. brought out the dead body from the water to the eastern shore of Tollynalah with the help of the local people and examined the dead body thoroughly and found the dead body was decomposed. Photographers came and took photographs of the dead body. Thereafter, the said S.I. held inquest in presence of local witnesses and prepared an Inquest Report duly attested by the witnesses. On search of the wearing apparels, a black coloured purse containing xerox copy of driving licence in the name of Santosh Gore with his father’s name and address and his photograph and some other papers were recovered from the back pocket of the trouser. The said S.I. seized those articles under a seizure list duly attested by the witnesses. Thereafter, he sent the dead body to Kantapukur Police Morgue for post mortem examination. The said S.I. seized those articles under a seizure list duly attested by the witnesses. Thereafter, he sent the dead body to Kantapukur Police Morgue for post mortem examination. Thereafter, he along with other officers and force went to 6, Dilarjan Road in order to fix up the identity of the dead body. There they contacted with one Uma Sankar Singh who gave them the address of the premises of the deceased Santosh Gore. Accordingly, they went to that premises and met with Mithai Lal Gore, father of the deceased Santosh Gore and he was taken to the police morgue where he identified the recovered dead body as that of his son Santosh Gore. Thereafter, on returning to P.S. the said S.I. Mantu Gopal Mondal entered the facts including the action taken by him in a G.D. Entry being G.D. Entry No.2888 dated 26.09.2003 and started a suo-moto case treating the said G.D. entry as First Information Report of the case. On the basis of such G.D. Entry, Alipore P.S. Case No.140 of 2003 dated 26.09.2003 under Section 302 of the Indian Penal Code was registered. That case was investigated into and on completion of investigation charge sheet was submitted under Sections 302/201/34 I.P.C. against the present appellants. Thereafter, the case was placed for trial before the Learned Additional District & Sessions Judge, Fast Track Court-VI, Alipore who framed charges under Section 302 read with Section 34 I.P.C. and under Section 201 read with Section 34 of the I.P.C. against the present appellants and after conclusion of trial, he held the appellants guilty and convicted them as aforesaid. 3) Prosecution examined as many as 26 witnesses in order to prove the charge levelled against the appellants. On the other hand, the defence adduce no evidence. 4) Mr. Sekhar Kumar Basu, Learned Senior Counsel appearing for the appellants has advanced the following arguments while impugning the judgment under appeal:- i) It is the bounden duty of the prosecution to prove that the incident alleged happened at the time, in the place and under the precise circumstances narrated on behalf of the prosecution. But in the instant case the prosecution has miserably failed to discharge such burden. ii) In the present case there is neither any eye witness nor the prosecution has proved the complete chain of circumstances. But in the instant case the prosecution has miserably failed to discharge such burden. ii) In the present case there is neither any eye witness nor the prosecution has proved the complete chain of circumstances. The Trial Court has erred in applying the theory of last seen together to arrive at the finding of conviction against the accused. There being no direct evidence of involvement of the appellants in the commission of crime, the theory of last seen together could not be of any assistance to the prosecution. iii) The alleged witnesses of last seen together namely P.W.3 Mithai Lal Gore, P.W.4 Mrinal Kanti Saha and P.W.5 Joydeb Dubey identified the appellants in Test Identification Parade (henceforth mentioned as T.I. Parade) held on 06.11.2003, that is after a very long period of about one month five days. The Investigating Officer P.W.26, S.I. of Calcutta Police, Uttam Kumar Mukherjee admitted that he made prayer for placing the accused persons in T.I. Parade on 13.10.2003, that is, on the last date of completion of the full term of the Police Remand Period. The accused were produced in Court on several dates. Thus the possibility that the witnesses had seen the accused persons prior to holding of the T.I. Parade cannot be easily ruled out. Moreso, when those witnesses failed to disclose before the Magistrate any special feature or mark of identification of the accused persons or that they had identified the suspects in the light of the cabin of the Trailor. Therefore, the T.I. Parade is vitiated and the evidence of identification on dock becomes doubtful. He also contended that if the evidence of identification of the accused persons becomes doubtful then the theory of last seen together falls flat for want of proper identification. iv) The recoveries alleged to have been made in furtherance to the confessional statements of the accused are inadmissible in evidence and, in any case, the articles recovered have no link with the commission of the alleged crime and as such, it would be impermissible in law to use these recoveries against the accused for sustaining their conviction. v) The Trial Court has abjectly failed to appreciate the medical and other evidence placed on record by the prosecution in its correct perspective. There are serious contradictions in the medical and ocular evidence, as regards the time of death of the deceased. v) The Trial Court has abjectly failed to appreciate the medical and other evidence placed on record by the prosecution in its correct perspective. There are serious contradictions in the medical and ocular evidence, as regards the time of death of the deceased. Once the time of death of the deceased is not established, the whole story of the prosecution is lost in the telling. vi) In a case based on circumstantial evidence, motive has greater relevancy and it assumes great importance and its absence may be fatal. Like any other circumstantial evidence proof of existence of motive is necessary. But in the present case, the prosecution has hopelessly failed to spell out any motive far to speak of establishing the same. He, therefore, emphatically contended that the prosecution has miserably failed to establish the chain of circumstances so as to make it complete and unerringly fixing the appellants with the alleged offence of murder of the deceased Santosh Gore. So the conviction cannot be sustained and the appellants are entitled to an order of acquittal by setting aside the impugned judgment and order. He relied on the decisions reported in AIR 1924 Calcutta 323, 2012(7) SUPREME 465 , (2014)4 SCC715, AIR 1982 Supreme Court 1157, 1993 SCC (Cri.) 1096, 2011(1) Supreme 582 , (2009) 2 C Cr LR (Cal) 95 and 2014(3) Supreme 321 in support of his contention. 5) Mr. Manjit Singh, Learned Counsel for the State on the other hand wholeheartedly supported the impugned judgment and order of conviction. According to him the loopholes highlighted by his Learned Adversary lose significance in view of the fact that the appellants made confession of their guilt and also made disclosure statements in pursuance of which the incriminating articles including the offending weapon were recovered in presence of the witnesses. He further submitted that there is no reason to disbelieve the evidence adduced by P.W.3, P.W.4 and P.W.5 who categorically stated that they saw the victim Santosh Gore for the last time when he was alive in the company of the accused/appellants and they identified the accused in T.I. Parade as well as in Court. He would further contend that the prayer for T.I. Parade was submitted by the I.O., P.W.26 on 13.10.2003 and it was allowed by the Court and the date for holding T.I. Parade was fixed on 04.11.2003. He would further contend that the prayer for T.I. Parade was submitted by the I.O., P.W.26 on 13.10.2003 and it was allowed by the Court and the date for holding T.I. Parade was fixed on 04.11.2003. But on that date due to engagement of the concerned Magistrate in taking police file, he could not hold the T.I. Parade on that date and finally he held the same on 06.11.2003. So the delay, if any, was due to the Court. According to him, mere delay in holding T.I. Parade is not fatal. Therefore, the appellants have no escape for the heinous crime perpetrated by them and the Learned Trial Court has rightly convicted them and passed the appropriate sentence which should be maintained. Mr. Singh finally insisted upon dismissal of the appeal. He cited the decision reported in AIR 1972 SC 2478 (Bharat Singh V State of U.P.) in support of his submission. 6) Having regard to the conflicting assertions advanced by the Learned Counsels in the light of the Rulings placed and on perusal of the record and proceedings, we find that there is no eye witness or direct evidence to the alleged incident of murder and the entire prosecution case rests on circumstantial evidence. 7) In a plethora of decisions, the Supreme Court of India has laid down the guidelines for appreciation of evidence in a case of circumstantial evidence. In the case of Brajendrasingh Vs. State of Madhya Pradesh reported in 2012 Cr.L.J. 1883 the Apex Court observed as follows:-“It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. 8) There can be no dispute that the deceased Santosh Gore had died homicidal death. P.W.16 Dr. Tapan Kanti Roy who held post mortem examination over the dead body of the deceased opined that the death was caused due to the combined effect of the injuries found by him and pressure over the neck which were ante-mortem and homicidal in nature followed by Post Mortem disposal in water. The question is whether the prosecution has been able to connect the present appellants with the alleged crime? 9) Let us now assess the evidence on record in the perspective of the aforesaid guidelines of the Supreme Court of India. 10) Giving a close and critical look into the evidence – both oral as well as documentary with meticulous care, we see that the whole prosecution edifice is built of the alleged last seen together theory and confessional statements of the appellants containing the disclosure statements leading to the recovery of the offending weapon and other articles. So let us now proceed to examine the evidence of last seen together. So let us now proceed to examine the evidence of last seen together. 11) P.W.3, Mithai Lal Gore, father of the deceased deposed that on 24.09.2003 his son Santosh was murdered. He further deposed that on 24.09.2003 at No.2, Dilarjan Road, a Trailor with a container was parked since morning. On the same date at about 7.30 p.m. he went to No.2, Dilarjan Road where he found his son Santosh with three others in the cabin of the Trailor. Besides the cabin the Trailor had no other sitting arrangements. The container of the Trailor was closed then. He went in front of the said Trailor to call Santosh. He could identify his son Santosh with three others with the help of light of the cabin of the Trailor. Out of four persons, he found one person sitting in the seat of driver of the said Trailor. His son Santosh was sitting to the left of the seat of the driver and also adjacent to the gate of the Trailor. Two others in the cabin were found sitting on the back side of the seat of his son Santosh. He called Santosh in the cabin of the Trailor when he was gossiping with three others in that cabin. In response to his call, Santosh told him to go back with a further reply that he would come back to home shortly. It was then 7.30 p.m. He then came back home. Again he went in front of the said Trailor at about 8.30 p.m. when he found Santosh with three others in the cabin of the Trailor. He requested Santosh to come home for dinner and Santosh told him to go back and further stated that he would come back home shortly. He then came back home. Again at about 9.30 p.m. he went in front of the said Trailor and on reaching there, he found the said Trailor was going away taking Santosh and three others. He then started calling his son as “Santosh – Santosh – Santosh” from behind. Santosh gave reply in response to P.W.3’s call that he would come back shortly by projecting his hand from the said Trailor. It is the further evidence of P.W.3 that on 26.09.2003 at about evening police from Alipore P.S. came to his residence and showed him xerox copy of driving licence of his son Santosh. Santosh gave reply in response to P.W.3’s call that he would come back shortly by projecting his hand from the said Trailor. It is the further evidence of P.W.3 that on 26.09.2003 at about evening police from Alipore P.S. came to his residence and showed him xerox copy of driving licence of his son Santosh. He could not identify the photograph of his son and as per request of the police officer he went to morgue for identification of his son Santosh and he could identify his son Santosh in the morgue. He identified the photographs of his deceased son Santosh. He also identified the photograph of the said Trailor with container. He further identified the accused Noor Islam as the driver of the said Trailor and the accused Monoj Kumar Srivastava and Dipak Prasad Chowhan whom he found sitting on the back seat of the seat of his deceased son in the cabin of the said Trailor. He deposed yet further that he identified the accused persons in T.I. Parade in jail in presence of Learned Magistrate. In cross-examination P.W.3 admitted not to have stated before the Learned Magistrate that he found his son gossiping with the accused persons on 24.09.2003 at about 7.30 p.m. and 8.30 p.m. and that his son Santosh was sitting in the Trailor on the left side of the driver and other two accused persons were sitting back of the seat of his son Santosh. He, further, claimed to have stated before the Learned Magistrate at the time of T.I. Parade that he could identify the accused persons in the Trailor with his son with the help of light of the cabin. He, further stated that he did not file any complaint personally in police station for unnatural death of his son and that he did not go to police station for giving information of the unnatural death of his son Santosh immediately after returning home with any inmate of his house. He admitted further that he did not state before the Learned Magistrate about the wearing apparels of the accused persons which they wore at the relevant point of time or the role played by them in the Trailor and that when he called his son Santosh, he replied that he would come back home after 10/15 minutes. He admitted further that he did not state before the Learned Magistrate about the wearing apparels of the accused persons which they wore at the relevant point of time or the role played by them in the Trailor and that when he called his son Santosh, he replied that he would come back home after 10/15 minutes. 12) P.W.4, Mrinal Kanti Saha deposed that on 24th September, 2003 at about 9 p.m. he went to No.2, Dilarjan road for parking his own vehicle. He found a Trailor No.AS14-2875 with a container standing at No.2, Dilarjan road. It was waiting there since morning. He found the same waiting in the morning when he took his vehicle from that place. In the night that Trailor occupied his parking place. He requested the driver of the Trailor to give him space for parking. The driver of the Trailor told him that he would give him space for parking after ‘No entry’ was lifted. He found four persons in the cabin of the said Trailor. He could identify them with the help of light of cabin of the Trailor. He found Santosh, son of P.W.3 among the four persons in the said cabin of the Trailor. He waited for some considerable time and again requested them to leave his space for parking and they requested him to wait for a short while. Five minutes thereafter the Trailor started moving. He found P.W.3 was calling his son Santosh from behind for taking dinner. Santosh replied from the cabin that he would come back shortly and requested P.W.3 to go back home. P.W.4 then parked his vehicle and left place. He further deposed that on 26.09.2003 at about 4.30 pm police came to the residence of P.W.3. He went there and saw police was showing a xerox copy of the photograph of Santosh to P.W.3 but he could not identify the photograph. So police took P.W.3 to morgue for identification of Santosh and he also accompanied them. Both he and P.W.3 identified Santosh seeing his dead body. He identified the accused Noor Islam as driver of the said Trailor and other two accused namely Dipak Prasad Chowhan and Monoj Kumar Srivastava who was sitting on the back seat of the driver’s seat of the cabin of the Trailor. He also identified the photographs of the Trailor and the deceased Santosh. He identified the accused Noor Islam as driver of the said Trailor and other two accused namely Dipak Prasad Chowhan and Monoj Kumar Srivastava who was sitting on the back seat of the driver’s seat of the cabin of the Trailor. He also identified the photographs of the Trailor and the deceased Santosh. In cross-examination P.W.4 stated that from behind the container of the Trailor, the inner portion of the cabin or inside of the cabin was not visible. The cabin is visible as soon as a person reaches close to the window of the cabin. He admitted not to have stated to the Learned Magistrate in T.I. Parade that he could identify accused person with Santosh in the cabin of the Trailor with the help of light of cabin of Trailor and that P.W.3 was calling his son Santosh from behind when the Trailor was about to move and in reply Santosh from the Trailor in motion replied to his father stating that he would come back within 10/15 minutes. 13) P.W.5 Joydeb Dubey is a friend of the deceased Santosh Gore. He deposed that he found Santosh for the last time on 24.09.2003 at about 8/8.30 p.m. in a cabin of a Trailor standing on No.2, Dilarjan road when he went to take bath in a tap situated at that place. He found three others with Santosh at the relevant point of time. He found Santosh Gore sitting on the seat lying to the left of the driver of the said Trailor with the help of light of the cabin of the Trailor. He asked Santosh to come out and to participate with them at the Puja pandal but he refused and stated that he would come back shortly. He then went away for having bath and thereafter went to the puja pandal for joining the “Adda” but Santosh did not join with them. Three days thereafter, he found the dead body of Santosh in their locality. He identified the photographs of Santosh and the Trailor. He attended T.I. Parade in the jail. He identified the accused Noor Islam who was found sitting on the seat of the driver of the Trailor and the accused Dipak Prasad Chowhan and Monoj Kumar Srivastava were found sitting on the back seat of the driver’s seat. He identified the photographs of Santosh and the Trailor. He attended T.I. Parade in the jail. He identified the accused Noor Islam who was found sitting on the seat of the driver of the Trailor and the accused Dipak Prasad Chowhan and Monoj Kumar Srivastava were found sitting on the back seat of the driver’s seat. In cross-examination P.W.5 admitted not to have stated before the Learned Magistrate in T.I. Parade about the wearing apparels of the accused persons which they wore at the relevant point of time. He further claimed to have stated before the Learned Magistrate that he could identify the accused persons with Santosh in the cabin with the help of light of the cabin of the Trailor. 14) Conduct of P.W.3, father of the deceased could not be accepted to be in conformity with the expected normal human behaviour and, in fact, was quite unnatural since he did not intimate anyone about the incident after seeing that his son was taken away by three unknown persons and he kept quiet for about two days till the recovery of his son’s dead body. It defies common sense that the father P.W.3 would not tell his family members about the disappearance of his son Santosh. It is totally contrary to normal behaviour that he would have maintained sphinx –like silence and not inform others. It is also worthy to note that he did not disclose it to anyone for about two days and it has not been explained why he remained tight-lipped over the matter without even informing anyone else in the family or locality or without conducting search for his son or even without going to the police station. Equally it remains a mystery why P.W.3 did not lodge any complaint before the police after seeing the dead body of his son. Similarly, P.W.4 and P.W.5 did not tell anyone else about the incident and they have also not offered any explanation for their mystic silence. It is interesting to note that although P.W.3, P.W.4 and P.W.5 went to the place where the Trailor was parked almost at the same time and saw Santosh to gossip with the accused but none of them had made any reference of each other. The Learned Trial Court has, in our opinion, proceeded more on the basis of suspicion that the appellants might have murdered the deceased Santosh Gore. The Learned Trial Court has, in our opinion, proceeded more on the basis of suspicion that the appellants might have murdered the deceased Santosh Gore. In doing so, he overlooked the fact that there is a long distance between ‘May have’ and ‘Must have’ which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject had already been stated. The essence of the requirements is that not only should the circumstance sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstance form so complete a chain as leaves no option for the court except to hold that the accused is guilty of the offence with which he is charged. The disappearance of deceased Santosh Gore in the present case is not explicable as sought to be projected by the prosecution only on the hypothesis that the appellants killed him near Khidirpur bridge in a manner that is not known or that the appellants disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body might have been dumped into Tollynalah from which it was recovered. In view of such obtaining fact situation, in our considered opinion, the conduct of the said witnesses is unnatural and therefore we feel that it would be absolutely unsafe to convict the accused persons on the basis of their testimony. 15) Looking into another important aspect of the case with regard to the ‘last seen evidence’ we find that P.W.3 Mithai Lal Gore has testified that he saw his son Santosh for the last time in the company of the appellants at about 9.30 p.m. on 24.09.2003. The dead body of the deceased Santosh was found at about 9.50 a.m. on 26.09.03. Therefore, the time lag between the Santosh being last seen alive and his dead body being discovered is considerably long being of 36 hours. Moreover, according to the Doctor, P.W.16, the deceased had died about 60 to 72 hours before performing of the post mortem examination. He deposed that he conducted the post mortem examination upon the deceased on 26.09.03 at about 3.45 p.m. That implies that the deceased would have died sometime during the period from 3.45 p.m. on 23.09.03 to 3.45 a.m. on 24.09.03. He deposed that he conducted the post mortem examination upon the deceased on 26.09.03 at about 3.45 p.m. That implies that the deceased would have died sometime during the period from 3.45 p.m. on 23.09.03 to 3.45 a.m. on 24.09.03. In this context Learned State Counsel argued that P.W.16’s statement that he conducted the post mortem examination on 26.09.2003 can be overlooked on the face of the post mortem report of which he is the author and which bears the date of post mortem examination as 27.09.2003. Mr. Basu, Learned Counsel for the appellants, on the other hand, contended that the statement made by P.W.16 on oath before the Court is substantive evidence and it deserves precedence over the post mortem report which is only a secondary one. Having regard to such rival submissions, we would like to say that a post mortem report is not a substantive piece of evidence and when the Doctor has deposed himself, his evidence should be given more weight. That apart, we find from the Inquest Report (Ext.15) that P.W.25 S.I. Mantu Gopal Mondal who was the first Investigation Officer, held the inquest of the dead body on 26.09.2003 at about 10.20 a.m. and thereafter, the dead body was sent to Kantapukur morgue for holding post mortem examination. P.W.25 also deposed so and further stated that the dead body was then decomposed. P.W.15 Constable No.4044, Kartick Chandra De deposed thaton 26.09.2003 he carried the dead body to Mominpur morgue for post mortem examination and identified the same before the Doctor. The Post Mortem Report (Ext.16) also reflects that the dead body was identified by P.W.15 before post mortem examination. Thus, it becomes established beyond doubt that the dead body was dispatched for post mortem examination on 26.09.2003 after 10.20 hours, i.e., after holding of the inquest. Further confirmation in this regard is found from the evidence of P.W.3 and P.W.4 who stated that they went to the morgue on 26.09.2003 and identified the dead body of deceased Santosh Gore. Therefore, there can have no scope for harbouring any doubt that the post mortem examination was conducted on 26.09.2003 at 3.45 p.m. as has been stated by the Doctor P.W.16. 16) In the case of Bodh Raj @ Bodha & Others Vs. Therefore, there can have no scope for harbouring any doubt that the post mortem examination was conducted on 26.09.2003 at 3.45 p.m. as has been stated by the Doctor P.W.16. 16) In the case of Bodh Raj @ Bodha & Others Vs. State of Jammu and Kashmir reported in (2002) (8 SCC 45 : AIR 2002 SC 3164 the Supreme Court of India held that “The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being 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. 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. Similar view was expressed by the Apex Court in the case of Arjun Marik and Others Vs. State of Bihar reported in 1994 Supp.(2) SCC 372 observing that the solitary circumstance of the accused and victim being last seen together will not complete the chain of circumstance for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused and no conviction on that basis alone can, therefore, be founded. 17) In the last seen theory, an element of identification is an important and strong factor. If either of the party, i.e., culprit or the victim was not identified by a witness of lastly seen saying that they were in the company of each other, the circumstance of last seen fails because in that case it would not be established by the prosecution that who accompanied whom. If in a case based on last seen together the identity of the culprit or the victim is doubtful or is not established beyond reasonable doubt, the circumstance shall not be held to be proved and the conviction based on such circumstance cannot be sustained. If in a case based on last seen together the identity of the culprit or the victim is doubtful or is not established beyond reasonable doubt, the circumstance shall not be held to be proved and the conviction based on such circumstance cannot be sustained. 18) In the case on hand, although the Learned Counsel for the State sought to rely also upon P.W.6 Wasal Ahmed, husband of the owner of the Trailor in question and P.W.7 Ahmed Hossain @ Dulera who allegedly saw the Trailor was standing on Khidirpur bridge and something was thrown into the water by the accused persons, as last seen witnesses but they were not witnesses of last seen together because P.W.7 had allegedly seen the accused persons alone and he did not see the deceased in their company. Therefore, though identification of the deceased was established, but identification of the accused persons was not established, and thus it was not at all estabhlished that the deceased was lastly seen in the company of the accused persons. Therefore, the circumstance of last seen together fails. 19) P.W.17 is the Learned Judicial Magistrate Prasanta Mukhopadhyay who held the T.I. Parade on 06.11.2003 in Alipore Central Jail. He deposed that P.W.3, P.W.4 and P.W.5 identified the suspects, namely, the accused Deepak Chowhan, Noor Islam and Monoj Kumar Srivastava as the person whom they saw talking with Santosh Gore sitting inside the cabin of the Trailor. He further deposed that after conclusion of the T.I. Parade, suspects told that during their 14 days’ police remand, they were shown to those identifying witnesses at Lalbazar police custody. In cross-examination P.W.17 stated that P.W.3 and P.W.5 did not state before him that they had the privilege of identifying all the suspects in the cabin of the Trailor with the help of the light in the cabin and that P.W.4 did not state before him that victim Santosh was found sitting to the left side of the driver of the Trailor and two others were on the back side of the seat of the driver. 20) The Supreme Court of India in the case of Mulla Vs. 20) The Supreme Court of India in the case of Mulla Vs. State of Uttar Pradesh reported in (2010)3 SCC 508/ A.I.R. 2010 SC 942 has elaborately discussed the law in relation to T.I. Parades, their evidentiary value, the effect of not conducting the T.I. Parades and delay in conducting the T.I. Parades and the principles relating to dock identification. It has been held therein that the necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The identification parades are not primarily meant for the Court and they are meant for investigation purposes. The object of conducting a Test Identification Parade is two-fold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act, 1872. It is desirable that a Test Identification Parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibilities of the accused being shown to the witnesses prior to the Test Identification Parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution. 21) The incident took place on 24.09.2003 and the accused persons were arrested on 29.09.2003 and 30.09.2003. Their recovery statements were recorded on 10.10.2003 and 11.10.2003, although they were produced in Court on 30.09.2003 and they were put in police custody on that very date. They were again produced in Court on 12.10.2003 and on the prayer of the I.O. they were remanded to police custody till 13.10.2003. On 13.10.2003 they were put into judicial custody in Alipore Central Jail. The Test Identification Parade was conducted on 06.11.2003. Thus, the T.I. Parade was conducted after one month and five days. They were again produced in Court on 12.10.2003 and on the prayer of the I.O. they were remanded to police custody till 13.10.2003. On 13.10.2003 they were put into judicial custody in Alipore Central Jail. The Test Identification Parade was conducted on 06.11.2003. Thus, the T.I. Parade was conducted after one month and five days. In the instant case, there is no plausible explanation by the prosecution as to why the T.I. Parade was conducted at such a belated stage. 22) Therefore, there was some room for doubt if the delay was in order to enable the identifying witnesses to see them in jail premises or police lock-up and thus make a note of their features. Moreover, more than one month had elapsed between the date of occurrence and the date of holding T.I. Parades and the accused persons complained before the Learned Magistrate (P.W.17) that during their police remand they were shown to those identifying witnesses in Lalbazar Police Custody. No descriptive particulars of the appellants were given in the G.D.-F.I.R. but while deposing before the Learned Sessions Judge, the witnesses said that the accused Noor Islam was the driver of the Trailor and the accused Monoj Kumar Srivastava and Dipak Prasad Chowhan were sitting on the back seat of the seat of the deceased Santosh in the Trailor. Further they did not disclose before the Learned Magistrate (P.W.17) that they could identify the suspects in the cabin of the Trailor with the help of the light in the cabin of the Trailor. It also does not reveal from the record that while production before the concerned Court and on the way from concerned jail to the Court, the face of the accused persons were covered. Therefore, a possibility of their being seen by the witnesses can also not be fully ruled out. This further makes the T.I. Parades doubtful. Therefore, we do not deem it appropriate to rely on the circumstance that the accused persons were genuinely identified by the witnesses in their T.I. Parades conducted after one month five days of their arrest by the police. Thus, though the aforesaid witnesses P.W.3, P.W.4 and P.W.5 identified the accused persons on dock, but their dock-identification, in the light of their above evidence relating to Test Identification Parades becomes shaky and doubtful and the same cannot be relied on. Thus, though the aforesaid witnesses P.W.3, P.W.4 and P.W.5 identified the accused persons on dock, but their dock-identification, in the light of their above evidence relating to Test Identification Parades becomes shaky and doubtful and the same cannot be relied on. 23) The scope and ambit of Section 27 of the Indian Evidence Act, 1872 were illuminatingly stated long ago by the Judicial Committee of the Privy Council in Pulukuri Kotayya Vs. King Emperor (AIR 1947 PC 67/1947 Cri LJ 533) Recently in Mustkeem alias Sirajudden Vs. State of Rajasthan reported in (2011)3 SCC (Cri.)473/ AIR 2011 SC 2769 the Supreme Court of India observed as under:- “With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.” 24) The evidence of P.W.26, S.I. Uttam Kumar Mukherjee, the Investigation Officer who recorded the confessional statements of the accused has also been recorded by the Learned Additional Sessions Judge, on similar line. It is surprising to see that in recording the evidence for the purpose of Section 27, Evidence Act, the Learned Additional Sessions Judge instead of admitting exculpatory portion in the confessional statement, had recorded inculpatory/incriminating part in the confessional statement of the accused. This is not in accordance with Section 27 of the Evidence Act. What the Learned Judge has to do is to dissect the exculpatory portion from the inculpatory portion in the confessional statement and admit only the non-culpatory portion in evidence. 25) Now, let us separate the non-culpatory portion in Ext.25 and Ext.26 and see whether based on such non-culpatory information any material has been recovered, whether such information and discovery of the fact have been proved, whether they have any connection with accusation made against the accused persons. 25) Now, let us separate the non-culpatory portion in Ext.25 and Ext.26 and see whether based on such non-culpatory information any material has been recovered, whether such information and discovery of the fact have been proved, whether they have any connection with accusation made against the accused persons. 26) It is the evidence of P.W.26, S.I. Uttam Kumar Mukherjee, Investigation Officer, that he arrested the accused Dipak Prasad Chowhan on 29.09.2003 and on 30.09.2003 he took up charge of other two accused Noor Islam and Monoj Kumar Srivastava. He stated that after prolonged interrogation on 29.09.2003 accused Dipak Prasad Chowhan made disclosure before him. He, however, did not mention any date of such interrogation in respect of the other two accused. It appears from the prayer submitted by him before the Learned SDJM, Alipore on 30.09.2003 that the accused persons were being closely interrogated and they were making statements which required verification but there was no mention in such prayer that the accused Dipak Prasad Chowhan made any disclosure on 29.09.2003. From the statement of Dipak Prasad Chowhan it appears that it was recorded on 10.10.2003. It is not understood as to why P.W.26 recorded the statement of Dipak Prasad Chowhan on 10.10.2003 when he made disclosure on 29.09.2003. It further appears that the date appending to the signature of the I.O. was initially put as 11.10.2003 but the digit 11 has been over-written and the date has been changed to 10.10.2003. From the statement of accused Monoj Kumar Srivastava it appears that the same was recorded on 11.10.2003. It is very much interesting to see that in the first page of the seizure list (Ext.12) which relates to the recovery of articles in pursuance of statement made by accused Monoj Kumar Srivastava the witnesses put signatures and date as 11.10.2003 but in the second page the witness Md. Alauddin put the date 10.10.2003 below his signature. It further appears that in the bottom of the second page the I.O. over-wrote the date below his signature and made it 11.10.2003 after writing it as 12.10.2003. It is yet more surprising to see that in the statement of Monoj Kumar Srivastava (Ext.26) the portion “I shall be able to locate the place if I am taken there” is written in different ink. It is yet more surprising to see that in the statement of Monoj Kumar Srivastava (Ext.26) the portion “I shall be able to locate the place if I am taken there” is written in different ink. In the same different ink the item No.(c) of the articles seized in the seizure list (Ext.12) the recovery of one old and used razor has been written. Also the column No.2 of the seizure list (Ext.12) and the endorsement made by the I.O. at the bottom of the page 2 of that seizure list are also in different ink which is again similar to that of the aforesaid statement. All these being considered together tend to indicate that the I.O. interpolated the statement and the seizure list. It is further seen that in page 2 of the seizure list (Ext.12), it is mentioned that the seized articles were moist with water, those were dried and were packed, sealed and labelled. But the seizure list (Ext.11) does not bear such remark although those articles were also in wet condition and one of the articles was stained with mud. It is not at all understood and also no explanation is offered why such differential treatment was made in respect of those two seizures. The witnesses to the seizure list (Ext.11) namely, P.W.10 Parshu Ram Jena and P.W.11 Ramasankar Rajbanshi and P.W.12 Md. Alauddin who is witness to the seizure list (Ext.12) also did not state that the seized articles were sealed and labelled after seizure on the spot. Both P.W.10 and P.W.11 further stated that the seized garments did not bear their signatures. P.W.10 admitted that the seized garments were abundantly available in market. P.W.12 also admitted that the seized razor is available in open market and that there is no label with his signature pasted upon the seized razor or upon the seized garments. Remarkably there is no note in both the seizure lists (Ext.11 and Ext.12) as to who identified those articles and to whom those belonged. Although the seized trousers and shirts were found to be stained with ‘B’-group blood but the blood group of the stains on the seized half pant, ganji and the razor could not be determined for insufficiency of the blood stain. Be that as it may, there is no report that the blood stains found on those articles were of the blood group of the deceased. Be that as it may, there is no report that the blood stains found on those articles were of the blood group of the deceased. Therefore, in absence of origin and group test of the blood stains found over the seized articles, the same cannot be held to be much incriminating. It is, therefore, obvious that the alleged discovery is farcical and a meaningless exercise. 27) Last of all, we must refer to the absence of any motive for the appellants to commit the alleged murder of deceased Santosh Gore. It is not the case of the prosecution that there existed any enmity between Santosh Gore and the appellants nor is there any evidence to prove any such enmity. Even it has not been surfaced that there was at all any acquaintance of the deceased with the appellants. It is fairly well-settled that while motive does not have a major role to play in cases based on eyewitness account of the incident, it assumes importance in cases that rests entirely on circumstantial evidence (vide 2013 Cr L J 1534 (SC) - Rishi Pal Vs. State of Uttarakhand). Absence of any motive in the present case, therefore, is something which assumes pertinent significance and weakens the prosecution case further. 28) P.W.25 stated in his evidence that he recorded the statements of P.W.3 and P.W.4 and thereafter he returned to police station and entered the G.D. entry No.2888 dated 26.09.2003 and started the case suo-moto. Thus, in natural fitness of things the FIR should have contained the story of last seen of the deceased together with the three unknown persons in the cabin of the Trailor in question giving some details about the time, place, features of the suspects and manner of identification etc. as P.W.3 and P.W.4 have vividly narrated before the Court. But for reasons unexplained the G.D. Entry No.2888 dated 26.09.2003 (FIR) does not bear any such reference. Even it is silent in respect of examination of P.W.3 and P.W.4 and of recording their statements by P.W.25 although it is eloquent on the examination of 11 local witnesses and of recording their statements after recovery of the dead body. More interesting fact is that although P.W.25 held inquest with reference to Alipore police station Inquest No.139 dated 26.09.2003 but the same is not mentioned in Column No.11 of the formal FIR and it is left blank. More interesting fact is that although P.W.25 held inquest with reference to Alipore police station Inquest No.139 dated 26.09.2003 but the same is not mentioned in Column No.11 of the formal FIR and it is left blank. Similarly although he seized some articles from the pocket of trouser of the dead body under a seizure list but he left the Column No.9 of the said FIR blank. Yet another startling fact which arrests our attention is that in Column No.3(b) of the formal FIR, occurrence of offence day is recorded as sometime between 21.00 hours on 24.09.2003 and 09.50 hours on 26.09.2003 while the Place of Occurrence in Column No.5 is shown as Tollynalah water in front of premises No.69/1/A, Chetla Road, Kolkata-27. These two information are totally incongruous. Admittedly there is no such mention of time in the G.D. Entry No.2888 dated 26.09.2003. In the Inquest Report, the time of arrival of P.W.25 on the spot is mentioned as 10.20 hours on 26.09.2003. So a question naturally crops up how such time/date of occurrence is recorded in Column No.3(b) of the formal FIR. But there is no answer to such query reflected either from the FIR or from the evidence of P.W.25. 29) Thus, a threadbare analysis of the prosecution evidence in proper perspective discloses very many inherent infirmities in the prosecution case. None of the circumstances woven by the prosecution against the accused has been proved. The chain of circumstances projected by the prosecution is found broken everywhere. They do not form a complete chain unerringly proceeding towards the accused. They do not exclude hypothesis of innocence in favour of the accused. The charges levelled must be proved by valid and legal evidence. Suspicion and surmises, however, strong may not be substitute for legal evidence to establish the charges. The evidence let in do not substantiate the charges levelled against the accused. The prosecution has not proved its case beyond all reasonable doubts. In this view of the matter, we are of the view that the view of the learned Additional Sessions Judge (Fast Track Court No.VI), Alipore on the evidence adduced is not correct. Consequently, the accused are entitled to be acquitted. 30) In the result, i) The Criminal Appeals are allowed. In this view of the matter, we are of the view that the view of the learned Additional Sessions Judge (Fast Track Court No.VI), Alipore on the evidence adduced is not correct. Consequently, the accused are entitled to be acquitted. 30) In the result, i) The Criminal Appeals are allowed. ii) The conviction recorded and the sentences imposed upon the appellants in S.T.No.04(02)04/S.C.No.43(02)04 by the Learned Additional Sessions Judge, (Fast Track Court No.VI), Alipore on 02.05.2005/03.05.2005 are set aside. iii) Fine amount, if already paid, shall be refunded to them. iv) The Appellants are acquitted of all the charges. They shall be released forthwith from the prison, if their presence is no longer required in connection with any other case/ proceedings. The office is directed to send down Lower Court Records at once. Subhro Kamal Mukherjee, J : I agree.