Girish Chandra Gupta, J. - (1.) This appeal arises out of a judgment and order dated 29th July 1998 passed by Shri A.K. Bhattacharyya, learned Additional Sessions Judge, Hooghly, acquitting the accused-respondents of the charges under section 364 and 302 of the Indian Penal Code read with section 34 thereof in connection with Sessions Trial No. 21/97.
(2.) Briefly stated the case of the prosecution is that on 19th May 1995 in between 5- 5.30 P.M. the deceased Paritosh Saha was abducted with the object of murdering him by the accused Shyamal and Prasanta. The accused persons along with the victim were about to cross the river Ganges (hereinafter referred to as the 'river') when P.Ws.6 and 11 also boarded the boat for the purpose of crossing the river. The deceased was thereafter taken by the accused persons in a lonely place and murdered. F.I.R. was lodged on 20th May 1995 at 7.05 P.M. On 21st May 1995 in the morning dead body of the deceased was found from the opposite side of the river. The accused persons were charged under sections 364 and 302 of the Indian Penal Code read with section 34 thereof. As many as 18 witnesses including one Court Witness were examined. The learned Trial Judge acquitted the accused persons on the basis of the following reasoning:- "The motive of accused is immaterial if the occurrence is proved (AIR 1976 SC 1932). Motiveless malignity militates against the natural human conduct. In cases where only circumstantial evidence is available, at the outset one normally starts looking for the motive and opportunity to commit the crime. If the evidence shows that the accused has a strong enough motive and had the opportunity of committing the crime and the established circumstance of the record along with the explanation if any, of the accused exclude the reasonable possibility of any one-else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all probability the crime must have been committed by the accused and he may safely be convicted on circumstantial evidence (AIR 1972 SC 54). In the case on hand, it is the evidence of P.W.1 that both the accused used to mix with the victim, but they never came to his house earlier. The evidence of P.W.5 in this regard is that the victim had not talking terms with the accused, but after theft of the motor pump they started talking with him which does not appear to be in harmony with the above evidence of P.W.1. Nevertheless, there being no animus or motive of the accused against the victim Paritosh, the story of committing crime by them does not appear to stand. In the premises, in the light of the above discussion, in the absence of cogent and strong circumstantial evidence, the prosecution cannot be said to have brought home the charges against the accused persons beyond all reasonable doubt and as such both the accused are entitled to the benefit of doubt. Accordingly, they are found not guilty."
(3.) It would appear that the learned Trial Judge acquitted the accused/respondents on the ground (a) that the evidence of P.W.1, the elder brother of the deceased, and P.W.5, the mother of the deceased, was inconsistent and (b) there was no motive for perpetrating the crime.;