JUDGMENT Partha Sarathi Sen, J. 1. In this appeal the judgment dated September 30,2004 and the order of sentence dated October 1, 2004 as passed in Sessions Trial No.1(July) 2003 arising out of Sessions Case No. 67 of 2003 by learned Judge, 3rd Bench, City Sessions Court at Calcutta has been assailed. By the impugned judgment learned trial court in the said sessions trial found the present appellant guilty under Section 302 of the Indian Penal Code and thus sentenced him to suffer imprisonment for life and also to pay fine of Rs.5000/- in default to suffer imprisonment for two years more. The appellant felt aggrieved and thus preferred the instant appeal. 2. For effective disposal of the instant appeal the facts leading to initiation of the aforesaid sessions trial is required to be dealt with in a nutshell. 3. One Pradip Kumar Pradhan, son of Nalini Kanta Pradhan of village Beltola, P.O Kalisabhanga, P.S Kanthi, District Purba Midnapur gave an oral statement before the S.I Haridas Ganguly of Kolkata Police which was reduced into writing by the said S.I of police and in his statement the defacto complainant stated that since 1998 he was working as a manager of ‘Hotel Penguin’ (hereinafter referred to as the said hotel) at 18 Jadunath Dey Road, Kolkata where two more managers, two sweepers and five hotel boys were employed. It was his further version that on 06.02.2003 at about 7:50 am when he and his colleague Saibal Jana were working in the reception, two persons entered into the said hotel and asked for a room to which the said employees of the said hotel allotted them room no.102 (hereinafter referred to as the ‘P.O room’). At the time of booking of the said room, one person amongst two having bulky weight and medium complexion wrote his name in the hotel register as ‘ Motilal Saw’ (Shaw) of 42 B Motilal Lane, and also entered the name of the other person as ‘Suman Behari’ in the said register and thereafter both the boarders entered into Room No. 102 of the said hotel and at about 1:30pm both of them went outside and came back soon with a bottle wrapped with newspaper which according to the de facto complainant might be a bottle of liquor. It was the further version of the de3 facto complainant before the SI, Haridas Ganguly that at about 4:30 pm the bulky person i.e. Motilal Saw (Shaw) went out of the hotel and thereafter he did not return. On the next day i.e. 07.02.2003 a boy of the said hotel as usual knocked on the door of the said P.O room but he got no response from the boarders of the said P.O room and when the de facto complainant made an attempt to contact with the boarders of the said P.O room at about 9:30 am through intercom he also got no response. He thereafter sent the hotel boy to knock at the door of the said P.O room but getting no response from inside, the de-facto complainant along with the two other employees of the said hotel entered into the said P.O room by opening the lock of the said room by a duplicate key and found that the said room is in dark while the ceiling fan of the said P.O room was rotating. It has been further stated that after illuminating the lights of the P.O room, he noticed that the thin person viz.; ‘Suman Behari’ was lying on the bed in upside down position and by the side of his head, the white bed sheet had turned red on account of oozing of blood. It has also been stated by the de-facto complainant that he thereafter informed the incident at Bowbazar Police Station. In his version, the de facto complainant expressed his view that Motilal Saw(Shaw) murdered Suman Behari. He thereafter stated that inspite of vigorous search he could not find out the original key of the said P.O room with which one brass plate has been attached on which the name of the said hotel and its room number have been inscripted in English. 4. On the basis of such complaint Bowbazar P.S Case No. 49 dated 07.02.2003 under Section 302 IPC was started. 4. On the basis of such complaint Bowbazar P.S Case No. 49 dated 07.02.2003 under Section 302 IPC was started. Initially the investigation was taken up by the said Haridas Ganguly, the S.I of Bowbazar Police Station of Calcutta Police (PW21) himself, however subsequently the investigation was transferred to the Murder Section, Detective Department of Calcutta Police where the said case has been re-numbered as Section ‘H’ Case No. 49 dated 07.02.2003 under Section 302 IPC and on behalf of the Detective Department PW22 conducted the remaining part of the said investigation and submitted charge sheet under Section 302 IPC as against accused Bapi Mukherjee @ Motilal Saw (Shaw) @ Shyamal Mukhejee (the present appellant herein). 5. After commitment and transfer learned trial court considered the charge as against the accused on the basis of materials as placed before him and by his order dated July 31, 2003 framed charge under Section 302 IPC as against the said accused. Trial court record reveals further that after bringing home the charges as against the accused, prosecution has examined 22 witnesses in all and a good number of documents and materials have been exhibited on their behalf. Though on behalf of the defence neither any oral or documentary evidence has been adduced but from the cross examination of the prosecution witnesses and the answers as given by the accused in his examination under Section 313 Cr.P.C, it reveals to us that the defence case is based upon false implication and clear denial. 6. For better appreciation of the facts and the evidence as involved in this appeal, we consider it necessary to give a brief description of the prosecution witnesses as well as their role in the manner indicated herein. Private witnesses Government witnesses Police Witnesses i. PW3:- The de-facto complainant…..Manager of the said hotel stated elaborately as to what happened on the relevant day at the said hotel and as to what he had seen at the P.O room…..stated to have identified the accused in T.I Parade. i. PW10-A Judicial Magistrate in whose presence T.I Parade of the accused was conducted ……testified that PW3,PW4 and PW5identified the accused whereas PW6 failed to identify the accused. i. PW10-A Judicial Magistrate in whose presence T.I Parade of the accused was conducted ……testified that PW3,PW4 and PW5identified the accused whereas PW6 failed to identify the accused. i. PW21- The S.I of Police of Bowbazar P.S….stated to have reached the P.O room after obtaining telephonic information and after diarizing the same in the G.D….testified to have perused the dead body at P.O Room on the cot…..recorded the statements of the eye witnesses namely; the employees of the said hotel…..testified to have seized the articles which are found in the P.O room as well as with the person of the dead body…..seized the hotel register and a duplicate metallic key of the P.O room…..being Recording Officer filled up the Formal FIR ….testified to have sent the dead body for post mortem examination….testified to have seized one diary as handed over by the autopsy surgeon….testified to have met one Purna Chandra Das as well as the brother of the deceased Khokan Das(PW9) and took him to the morgue for identification of the dead body and in his presence PW9, Khokan Das identified the dead body as of his elder brother….handed over the case diary to the Registrar of the Detective Department, Lalbazar through his superior. ii. P.W4- Another manager of the said hotel….his version is almost same as PW3….stated to have identified the accused in T.I Parade. ii. PW11-Demonstrator in Forensic Science Medicine Department of Calcutta Medical College….stated to have performed autopsy over the dead body….. submitted post mortem report as well as a supplementary report stating inter alia; that before the homicidal death of the victim, the victim consumed a good amount of alcohol. ii. PW1- S.I of Calcutta Police (Detective Department) and O/C of Photography Section of Detective Department of Lalbazar….testified to have taken photographs of the said hotel and different persons including the P.O room as well as the dead body of the victim on the relevant day and hour. iii. PW5-A waiter of the said hotel…. Testified same thing as PW 3 and PW4. iii. PW13-A scientist of Questioned Documents Examination Bureau…..stated to have examined disputed writings and a specimen writing of the accused….testified that the argument as found in these two writings are not sufficient to fix up the authorship. iii. PW2- A constable of Detective Department of Calcutta Police….. Testified same thing as PW 3 and PW4. iii. PW13-A scientist of Questioned Documents Examination Bureau…..stated to have examined disputed writings and a specimen writing of the accused….testified that the argument as found in these two writings are not sufficient to fix up the authorship. iii. PW2- A constable of Detective Department of Calcutta Police….. testified to have prepared rough sketch map, a final sketch map according to scale and took out the final blue print thereof of the said hotel and the said P.O room. iv. PW6- Another waiter of the said hotel….. testified the same thing as PW3,PW4 and PW5. iv. PW17- Assistant Director, FSL……stated to have examined both the keys i.e. the duplicate key of the P.O room and the seized key along with the seized Godrej lock of the door of the P.O room…..opined that the Godrej lock as seized can be opened by both the keys. iv. PW16- A constable of police …..testified to have handed over the dead body to the autopsy surgeon. v. PW7- A seizure witness of the metallic key fitted with a brass plate having inscription of the name of the said hotel and the number of P.O room in presence of the accused in front of 10 Nirmal Chandra Street. v. PW18- SI of policetestified to have conducted search and seizure at the house of the accused at Jagadal in District North-24- Parganas and sei trouser and shirt of the accused. vi. PW15- A seizure witness of metallic key fitted with a brass plate having inscription of the name of the said hotel and the number of P.O room in presence of the accused in front of 10 Nirmal Chandra Street adduced same line of evidence in his examination-in-chief as PW7. vi. PW19-Assistant of the 2nd I.O (PW22)…. testified to have arrested the accused on the basis of the source information. vii. PW8:- Another seizure witness of a wrist watch in presence of the accused. vii. PW20-SI of Jagadal P.S …..testified to have accompanied PW19 while arresting the accused and also a witness to the seizure. viii. PW9- Brother of the victim and claimed to have identified the dead body in the morgue. viii. PW22- 2nd I.O of the case and the S.I of Murder Section of Detective Department of Calcutta Police…. vii. PW20-SI of Jagadal P.S …..testified to have accompanied PW19 while arresting the accused and also a witness to the seizure. viii. PW9- Brother of the victim and claimed to have identified the dead body in the morgue. viii. PW22- 2nd I.O of the case and the S.I of Murder Section of Detective Department of Calcutta Police…. Took up charge of investigation….testified to have collected the post mortem report…took hand over of the accused from PW19 along with along with a supplementary case diary and forwarded it to court ….testified to have recorded the statement of the accused leading to the discovery of the main key of the P.O room…..testified to have recorded the statement of the accused after recovery of the main key of the P.O room…..seized a wrist watch from PW8….testifed to have again recorded the statement of accused….seized the wearing apparel of the accused and Godrej lock as fitted in the lock of the P.O room…. took steps for T.I Parade of the accused…..took specimen writings of the accused for sending the same to the Director of Questioned Documents Examination Bureau; CID…… collected post mortem report and submitted charge sheet as against the accused….testified to have received viscera report and report from Q.D.E.B. ix. PW12- Stated to be the owner of the house where the deceased during his life time used to stay as his paying guest….. testified that he knew the accused as an acquaintance of the deceased. x. PW14-Brother-in-law of PW12…..adduced same line of evidence as testified by PW12. 7. As discussed above learned trial court after considering the oral evidence of the aforementioned prosecution witnesses and after giving due thought over the exhibited documents came to the conclusion that the charge as framed against the accused has been duly proved and thus passed the impugned judgment of conviction and the order of sentence giving rise to the instant appeal. 8. Mr. Partha Sarathi Bhattacharya, learned Amicus Curiae appearing on behalf of the appellant at the very outset draws attention of this Court to the certified copy of the impugned judgment. Attention of this Court is also drawn to the oral evidence of the prosecution witnesses vis-à-vis. the exhibited documents. It is argued by Mr. 8. Mr. Partha Sarathi Bhattacharya, learned Amicus Curiae appearing on behalf of the appellant at the very outset draws attention of this Court to the certified copy of the impugned judgment. Attention of this Court is also drawn to the oral evidence of the prosecution witnesses vis-à-vis. the exhibited documents. It is argued by Mr. Bhattacharyya that the case as involved in this appeal is purely based on circumstantial evidence and before the learned trial court none of the circumstances have been proved beyond reasonable doubt as against the present appellant. It is further argued by Mr. Bhattacharyya that the assessment of evidence of prosecution witnesses as made by the learned trial court is not justifiable in the eye of law and thus the instant appeal may be allowed by setting aside the impugned judgement. 9. Per contra, Ms. Zareen N. Khan, learned advocate duly assisted by Mr. Ashok Das, learned advocate for the State contended that on conjoint perusal of the evidence of the prosecution witnesses, it would reveal that the circumstances as have been proved unerringly point out to the guilt of the accused beyond reasonable doubt. It is further argued that the sequence of events as have been depicted from the deposition of the prosecution witnesses categorically established the charge as framed against the accused. It is further argued on behalf of the State that the deposition of the private witnesses namely; PW3, PW4, PW5 and PW6 gets due corroboration from the deposition of PW11 who conducted autopsy over the dead body of the deceased. Ms. Zareen N. Khan, learned advocate for the State further argued that since the presence of the appellant and the victim on the relevant day and hour at the P.O room of the said hotel had been established, onus under Section 106 of the Evidence Act is cast upon the present appellant to explain as to how homicidal death of the victim occurred in the closed door of the P.O room when the original key of the room was seized at the instance of the appellant. Ms. Zareen N. Khan further submits that learned trial court on the face of the evidence on record is very much justified in passing the impugned judgment of conviction and thus it is a fit case for dismissal of the instant appeal. 10. Ms. Zareen N. Khan further submits that learned trial court on the face of the evidence on record is very much justified in passing the impugned judgment of conviction and thus it is a fit case for dismissal of the instant appeal. 10. We have meticulously gone through the trial court records namely; the charge as framed by the learned trial court, the oral evidence of the prosecution witnesses, the exhibits both documentary and material and the examination of the accused under Section 313 of the Code of Criminal Procedure. We have minutely perused the judgment as passed by the learned trial court which is impugned herein. We have given our due consideration over the submissions of the learned advocates of both the sides. 11. There is no doubt in our mind that the present case is based on circumstantial evidence and on the basis of the materials as available in the trial court record, we find the following circumstances which are very much relevant in the case as involved in this appeal and those circumstances are enumerated as under:- i. On 06.02.2003 at about 7:50 am two persons entered into the said hotel and booked the P.O room by entering their names in the hotel register as Motilal Saw (Shaw) (the appellant herein) and Suman Behari (the deceased) in presence of PW3, PW4, PW5 and PW6. ii. On the self same day at about 1:30 pm the said two boarders left the hotel and after sometime they returned with a newspaper wrapped bottle presumed to be a wine bottle as per the versions of PW3 to PW6 and asked for a bottle opener which was supplied to them by PW6 who at that time found both the boarders inside the P.O room. iii. On the self same day at about 4:25/4:30pm Motilal Saw(Shaw) (the appellant) left the hotel alone which was witnessed by PW3, PW5 and PW6 and did not return thereafter. iv. iii. On the self same day at about 4:25/4:30pm Motilal Saw(Shaw) (the appellant) left the hotel alone which was witnessed by PW3, PW5 and PW6 and did not return thereafter. iv. On the next day i.e. on 7.02.2003, PW5 went to serve tea at the P.O room in the morning but nobody responded to his call and even at 9:30 a.m of the self same day when the boarders of the P.O room were contacted through intercom, no one responded which appeared to be a suspicious circumstance to the employees of the said hotel and accordingly at 10:55 a.m. PW3 to PW6 entered into the P.O room by opening its lock by a duplicate key. v. After opening the door, PW3 to PW6 found the victim lying in dead condition on the cot in a pool of blood and at that time all the windows of the P.O room were closed from inside and the lights were put off prior to their entry in the room. vi. After getting information PW21 being the 1st I.O came to the P.O room and seized the 19 articles out of which one 650 ml brown colour bottle with lebel of ‘Haywards 500 Superior Strong Bear’ containing little amount of liquid and one glass containing little amount of liquor with smell of alcohol were seized. However, the main key of the P.O room as had been handed over to the boarders of the said room on 6.02.2003 was found missing. vii. The autopsy surgeon (PW11) in his post mortem report opined that the death of the victim was due to effect of manual strangulation (throttling), ante mortem and homicidal in nature and he further opined that the viscera of the deceased suggests detection of alcohol and that the deceased was upper throttled after consumption of good amount of alcohol which facilitated the homicide throttle. viii. In T.I Parade the appellant was identified by PW3, PW4 and PW5 as the person who left the P.O room alone on 06.02.2003 at about 1:30 pm. ix. viii. In T.I Parade the appellant was identified by PW3, PW4 and PW5 as the person who left the P.O room alone on 06.02.2003 at about 1:30 pm. ix. PW9 identified the victim as his second elder brother Tapan Das who according to PW3 to PW6 entered into the P.O room of the said hotel by disclosing his name as Suman Behari and PW12 and PW14 led clinching evidence to the effect that the appellant was a close acquaintance of the victim and they have found them together on a number of occasions. x. Oral evidence of PW7 and PW15 vis-à-vis Exhibit 33 (disclosure statement of the accused) establishes that the main key along with brass plate with inscription of the name of the said hotel was recovered and seized as per showing of the accused. xi. The Assistant Director, FSL (PW17) opined that the Godrej lock of the door of the P.O room can be opened both by the original key and the duplicate key. 12. At this juncture we propose to look to the relevant portions of the prosecution witnesses in order to come to a logical conclusion as to how far the prosecution witnesses are able to establish the circumstances as against the accused and to what extent. 13. So far as the circumstance nos. (i) to (v) as enumerated above, we find that PW3 to PW6 being the employees of the said hotel adduced same line of evidence in their respective examination-in-chiefs and in their respective cross-examinations nothing could be elicited to disbelieve their oral testimony. In view of such coherent and corroborative evidence of PW3 to PW6 we find that the circumstance nos. (i) to (v) have been proved beyond reasonable doubt as against the present appellant before the learned trial court. 14. So far as circumstance nos. In view of such coherent and corroborative evidence of PW3 to PW6 we find that the circumstance nos. (i) to (v) have been proved beyond reasonable doubt as against the present appellant before the learned trial court. 14. So far as circumstance nos. (vi) and (vii) are concerned, it appears to us that those two circumstances have also been proved as against the present accused since from the evidence of PW3 to PW6, it would reveal that on the fateful day both the accused and the victim while entering into the P.O room for the second time carried a bottle wrapped with newspaper which was presumed to be a wine bottle according to the said PWs and their anticipation was found to be correct when PW3 to PW6 entered into P.O room on 07.02.2003 after opening the door of the said room by a duplicate key. This part of the evidence in our considered view gets due corroboration from the oral evidence of PW21 (1st IO) who seized the said wine bottle containing little amount of liquid and one glass containing little amount of liquor with smell of alcohol. At this juncture if we once again look to the evidence of PW11 i.e. Autopsy Surgeon it has become crystal clear that on the day of incident the victim consumed alcohol which has been confirmed from his viscera report and since such consumption of alcohol was of good amount it facilitated homicidal throttling by the assailant. In view of such we find that the circumstances covered under (vi) and (vii) have been duly proved. 15. So far as the circumstances nos. (viii) and (ix) are concerned, it reveals from the evidence of the Judicial Magistrate (PW10) that PW3, PW4 and PW5 could identify the accused person who on 06.02.2003 entered into the P.O with the victim however left alone in the afternoon by keeping the door of the P.O room in locked condition. On conjoint perusal of the evidence of PW 12 and PW14 it also appears to us that the learned trial court is very much justified in placing reliance to their evidence since both PW12 and PW14 testified that the victim used to stay in the house of PW12 as his paying guest and both the victim and the accused were in visiting terms which they witnessed. In view of such and in absence of any contradictory evidence, we are of considered view that the circumstance nos. (viii) and (ix) have also been proved as against the accused. 16. So far as circumstance no. (x) and (xi) are concerned, we find no reason to disbelieve the oral evidence of PW21 (1st I.O), PW7 and PW15 (Seizure Witnesses to the metallic key fitted with a brass plate having inscription of the name of the said hotel) to the effect that the main key of the said P.O room was recovered as per showing of the accused from a plastic sheet which was attached to a banyan tree at the height of 8 to 10 ft from the ground on the western side of the footpath of Nirmal Chandra Street. At this juncture, if we look to the oral evidence of PW17 i.e. Assistant Director of FSL we also find that the said seized key duly matches with the duplicate key of the P.O room and by the said seized key the Godrej lock as fitted on the door of the P.O room could be operated. In view of such and in absence of any contrary material either in the evidence of PW7 or PW15 or PW22 or PW17 we have no hesitation to hold that the circumstance nos. (x) and (xi) have been duly proved. 17. As discussed above, before the learned trial court the prosecution is successful in proving the death of the victim as homicidal one as is evident from the evidence of PW11 and it has also been established that except the accused, no one had any access to the P.O room where the victim was found in dead condition on the relevant day. As rightly pointed out by Ms. Zareen N. Khan, learned advocate for the State in course of her argument that the accused had every opportunity to explain such incriminating circumstances in course of his examination under Section 313 Cr.P.C and in failing to do so, the accused before the learned trial court had miserably failed to discharge his onus within the meaning of Section 106 of the Evidence Act. 18. In our considered view, learned trial court while passing the impugned judgment rightly came to a conclusion that there is no missing link in the chain of circumstances as have been proved against the accused. 18. In our considered view, learned trial court while passing the impugned judgment rightly came to a conclusion that there is no missing link in the chain of circumstances as have been proved against the accused. We thus hold that the five golden principles for proving a case based on circumstantial evidence namely; “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” as enunciated in reported decisions of:- i. State of Rajasthan vs. Rajaram reported in (2003) 8 SCC 180 ; ii. Sarad Birdhichand Sarda vs. State of Maharastra reported in AIR 1984 SC 1622 ; iii. State of Haryana vs. Jaglir Singh reported in (2003) 11 SCC 261 have been clearly established as against the present accused. 19. We thus hold that the instant appeal is devoid of any merit and is hereby dismissed. The judgment dated September 30,2004 and the order of sentence dated October 1, 2004 as passed in Sessions Trial No.1(July 2003) arising out of Sessions Case no. 67 of 2003 by Learned Judge, 3rd Bench, City Sessions Court at Calcutta is hereby affirmed. 20. Since Shri Partha Sarathi Bhattacharya, learned advocate has taken burden to argue the case on behalf of the appellant as per our request, we direct the Secretary of Calcutta High Court Legal Services Committee to disburse honorarium to Mr. Partha Sarathi Bhattacharya, learned advocate as per scale keeping in mind that Mr. Bhattacharyya is fairly a senior advocate practicing in this Hon’ble Court. 21. Department is directed to send down the LCR along with a copy of this judgment at the earliest. 22. Partha Sarathi Bhattacharya, learned advocate as per scale keeping in mind that Mr. Bhattacharyya is fairly a senior advocate practicing in this Hon’ble Court. 21. Department is directed to send down the LCR along with a copy of this judgment at the earliest. 22. Department is further directed to forward a copy of this judgment to the Secretary, Calcutta High Court Legal Services Committee for doing the needful at his/her end directed above. 23. Urgent Photostat Certified copy of this judgment, if applied for, be supplied to the parties expeditiously after complying with all necessary legal formalities. Chitta Ranjan Dash, J. I agree.