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 and 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. 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. 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.
(3.) 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. 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. 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 MAMFRU CHOWDHURY v. KING -EMPEROR, 1924 AIR(Cal) 323, BALIYA @ BAL KISHAN v. STATE OF M P, 2012 7 SUPREME 465, KANHAIYA LAL v. STATE OF RAJASTHAN, 2014 4 SCC 715, GAMBHIR v. STATE OF MAHARASHTRA, 1982 AIR(SC) 1157, SURINDER PAL JAIN v. DELHI ADMINISTRATION, 1993 SCC(Cri) 1096, STATE THROUGH C B I v. MAHENDER SINGH DAHIYA, 2011 1 Supreme 582, (2009) 2 C Cr LR (Cal) 95 and 2014 3 Supreme 321 in support of his contention. ;