Amit Singh @ Amit And Others vs State Of West Bengal

,

Joymalya Bagchi, J",

The case may be aptly titled: “The Mystery Of The Missing Ringâ€​.,

Shyam Prasad Roy, a lawyer by profession, used to reside alone in the second floor of his ancestral house situated at 24A, Park Side Road, Kolkata",

700026. In the afternoon of 14.08.2007 a neighbour (P.W. 4) heard him calling 4/5 youths upstairs to his second floor residence. In the morning of,

16th August, 2007 local people complained to police that foul smell was coming from the said flat. P.W. 21, police officer attached to Tollygunge",

Police Station went to the spot. Salil Prasad Roy, elder brother of Shyam Prasad Roy, had also arrived there. On entering second floor room occupied",

by Shyam Prasad Roy, he found the door of the room open and noticed a heap covered with a mat on the cot. On removing of the mat he saw the",

body of Shyam Prasad in a kneeling position with his hands and legs tied with a rope from behind. His mouth was gagged. His body was sent to,

S.S.K.M Hospital where he was declared dead. P.W. 21 recorded the statement of Salil Prasad Roy who stated Shyam Prasad Roy used to reside,

alone as he was estranged from his wife and the latter was residing with her child at her parental home. A divorce proceeding was pending between,

them. Statement of Salil Prasad Roy was treated as First Information Report and Tollygunge P.S. case no.222 dated 16.08.2007 under section,

302/120B IPC was registered for investigation against unknown accused persons. Post-mortem of the body revealed Shyam Prasad had suffered,

homicidal death which occurred 66 to 70 hours ago that is, between 6.00 p.m. to 10.00 p.m. on 14.08.2007.",

During investigation it came to light Shyam Prasad used to attend races. At the race course he had met one Biplab Ghosh (P.W. 18) to whom he,

claimed he possessed various rare items including an antique ring. He showed Biplab the ring once or twice. Shyam Prasad also got acquainted to,

Amlan at the race course. He expressed his desire to sell the ring to Amlan. Accordingly, Amlan and his associates namely Badal, Bijoy, Sanjoy and",

Arindam alias Babla brought a customer to him. Subsequently, in the first week of August, 2007 Amlan and Arindam alias Babla asked him not to sell",

the ring through anyone except themselves failing which the consequences would not be good. This negotiation is alleged to have taken place in the,

presence of one Arindam Mallick, P.W. 3, an old school friend of Amlan. On the 14th of August, 2007 Amlan is alleged to have talked to Arindam",

over phone requesting him to accompany them to the house of Shyam Prasad for negotiations regarding the ring. Arindam declined to do so. In the,

afternoon of the same day P.W. 4, a neighbour of Shyam Prasad heard the latter call 4/5 boys upstairs to his residence. Thereafter Shyam Prasad",

was not seen by anyone. On the next day it is alleged the appellants had shown the antique ring to P.W. 5, Arit Kumar Roy, a gym instructor attached",

to Simla Bayam Samiti and a friend of Arindam alias Babla. P.W. 20, supplier of building materials residing at Chetla, while going to fetch his daughter",

from Carmel school noticed a black santro car standing in front of the house of Shyam Prasad and the appellants (except Sanjay) entering the,

residence of Shyam Prasad. Investigation also revealed Amlan had hired a santro vehicle bearing no.WB-02T/9299 from P.W. 16 which was driven,

by Ram Mondal. It was also revealed during investigation, soon after the incident Sanjay had secreted himself in a hotel named Crown lodge under the",

pseudo name, Monojit Chatterjee and was arrested from that hotel.",

In conclusion of investigation, charge-sheet was filed against the appellants and charges were framed 120B/302 IPC. In the course of trial prosecution",

examined 22 witnesses and exhibited a number of documents. Defence of the appellants was one of innocence and false implication. During,

examination of Sanjay under section 313 Cr.P.C. he stated that on 14.08.2007 he along with other appellants had come to the residence of the,

deceased. Other appellants had entered the house while he remained in the car. Around 5.15/5.20 p.m. they returned. Amlan gave him Rs.500/- and,

asked him go elsewhere and meet him after 2/3 days. He had sent the statement from correctional home and was brutally assaulted for making the,

statement by other accused persons except Ram Kumar Mondal and Amit Singh.,

In conclusion of trial, the trial Judge by judgment and order dated 29.01.2014 convicted and sentenced the appellants under section 302/120B IPC and",

sentenced them to suffer imprisonment for life and pay a fine of Rs.5,000/- (five thousand only) each, in default to suffer simple imprisonment on such",

score.,

Arguments at the Bar,

Learned counsels appearing for the appellants submitted that the case is based on circumstantial evidence. Circumstances relied upon by the,

prosecution have neither been proved beyond doubt nor do they form a complete chain unerringly pointing to the guilt of the appellants. Antique ring,

which is the foundation of the prosecution case was neither recovered nor produced in court. FIR lodged by Salil Prasad Roy, who is not examined",

does not state that the antique ring was missing. On the other hand Sunil Prasad Roy, another brother present at the spot made a statement (Ext.B)",

wherein he suspected the estranged wife of Shyam Prasad for his murder. P.W. 3 is an unreliable witness. He remained silent for eight days and,

disclosed the matter to police only on 23/24 August, 2007 after the arrest of Amlan. The witness himself had a checkered history and had been",

apprehended by police as he tried to stage his own kidnapping. P.W. 5 who claimed appellants had shown him the ring on the next day was examined,

two months after the incident. P.W. 4 had not identified the appellants in Court. Evidence of P.W. 20 the star witness is fraught with inconsistencies,

and/or improbabilities. He is a chance witness and no evidence is forthcoming that his daughter was studying at Carmel School situated near the,

residence of the deceased. He is a pocket witness of the police and had deposed in a number of other criminal cases on their behalf. During his,

examination under section 313 Cr.P.C., Amlan had placed on record copies of several depositions of P.W. 20 in various criminal cases where the said",

witness had deposed on behalf of the prosecution. Plea of P.W. 20 that he had crossed the house of the victim at Park Side Road is highly improbable,

as a shorter and different route is available to reach Carmel School from his residence as would be evident from his cross-examination. Evidence of,

P.W. 16 that Amlan had hired the vehicle and was described as ‘Dada’ in the records maintained by him is highly suspicious. The distance,

covered by the vehicle on that day does not match the distance between Kalakar Street and the place of occurrence. Exculpatory statement of,

appellant Sanjay and the fact that he resided under a pseudo name in ‘Crown Lodge’ soon after the incident cannot form the foundation of guilt,

in the absence of other evidence on record. Hence, the appeals may be allowed.",

Learned counsel appearing for the State argued that the chain of circumstances in the present case is clearly established and point to the guilt of the,

appellants. P.W. 3 and 18 have proved the appellants negotiated with the deceased relating to the sale of the antique ring and had told him not to sell,

the ring through anyone. P.W. 3 stated that he had telephonic conversation with Amlan in the morning of 14.08.2007 when Amlan informed him they,

were going to the residence of the victim for negotiations regarding the ring. Exhibit 10, call chart of the mobile phone owned by father of Amlan",

corroborates the evidence of P.W. 3. P.W. 20 saw the appellants go inside the residence of the deceased in the afternoon of the fateful day. His,

evidence is corroborated by P.W. 4, who heard the victim call 4/5 youths upstairs to his room. P.W. 16, owner of the Santro car, stated that appellant",

Amlan had hired the black Santro vehicle which was driven by Ram Mondal. Soon after the incident, Sanjay who confessed his guilt during trial had",

resided in a hotel under pseudo name. These circumstances along with the evidence of P.W. 15, post-mortem doctor who deposed that the deceased",

suffered homicidal death at his residence between 6.00 p.m. to 10 p.m. on 4.8.2007 establish guilt of the appellants beyond doubt.,

Circumstances relied upon by the prosecution,

The case is based on circumstantial evidence. Circumstances relied upon by the prosecution to establish the guilt are as follows:-,

Time (hours),Duration (second)

9.32,9

12.21,170

13.25,13

13.27,164

13.56,20

16.01,77

16.22,8

19.57,52

19.58,39

20.00,17

20.41,31

been murdered, that is, 6 PM to 10 PM of that day. P.W. 3 is completely silent with regard to such communications between himself and Amlan",

presumably. Prosecution has not explained why such phone calls were made to the landline of P.W. 3 and what transpired in the course of such,

telephonic exchanges. In a case based on circumstantial evidence, it is the duty of the prosecution to come with clean hands and establish all",

circumstances emanating from the facts of the case. During his examination under section 313 Cr.P.C trial Court confronted Amlan with the,

telephonic conversation on 19.57 and 19.58 hrs. between mobile no.9903334194 and the landline connection of P.W. 3 as an incriminating,

circumstance. P.W. 5 in his deposition has not spoken of any such conversation and the prosecution has failed to prove the nature of conversation in,

the course of the aforesaid call. Hence, I am constrained to hold P.W. 3 has held back the circumstances in which the aforesaid phone calls were",

made and no evidence is forthcoming on behalf of the prosecution to enlighten the court on such score. In the face of incomplete disclosure by P.W. 3,

relating to numerous telephonic exchanges presumably between himself and Amlan during his belated disclosure to police on 23/24.08.2007,

particularly after arrest of Amlan, it leads to the irresistible conclusion that the said witness is not a truthful one and appears to have suppressed the",

circumstances in which a number of phone calls throughout the day were received on his landline from the mobile phone of Amlan’s father. In,

Court, P.W. 3 gave a completely different narration of a singular telephonic conversation in the morning of the fateful day when he claimed Amlan",

told him that they were going to the residence of the deceased to strike a deal regarding the sale of the antique ring. Hence, evidence of this witness is",

fraught with falsehood and suppression. Under such circumstances, it would be unsafe to rely on the mere ipse dixit of P.W. 3 and come to a",

conclusion that Amlan had informed him of his desire to go to the residence of the deceased on the fateful day. P.W. 4 also is of no real help to the,

prosecution in this regard. He claimed he had heard 4/5 boys calling ‘Raida’ ‘Raida’ from the road and the appellant had asked those,

boys to come upstairs. He has not identified any of the appellants as the persons who were calling the victim by his name. This leaves the entire,

burden of the prosecution case on the shoulder of its star witness, P.W. 20. I have scrutinized the evidence of P.W. 20 in great detail. He is a supplier",

of construction materials and a resident of Chetla. Hence, he is not a neighbour of the deceased. He claims to have known the deceased as the latter",

wanted to sell the roof of his house to him. Even if such explanation is accepted, it is difficult for me to understand how the aforesaid witness came to",

be acquainted with Arindam alias Babla and other appellants. The witness explained he knew Arindam, a resident of Charu Market, from before.",

Admittedly, Arindam and P.W. 20 (a resident of Chetla) are not from the same locality. How and under what circumstances P.W. 20 came to be",

acquainted with Arindam is unclear. No evidence is led by prosecution to show P.W. 20 and Arindam used to socially interact with one another on a,

regular basis and accordingly the witness had got acquainted with his friends i.e. the other appellants. Hence, acquaintance of the said witness with",

Arindam and other appellants appear to be highly artificial and a concocted one. Hence identification of the appellants by this witness in Court ought to,

be taken with a pinch of salt. Furthermore, insinuations have been made by the defence that this witness is a pocket witness of the prosecution.",

Suggestions were made in the course of his cross-examination that he had deposed in other criminal cases on behalf of the police. In the course of his,

examination under section 313 Cr.P.C, Amlan submitted photocopies of the depositions of the said witness in those cases. Materials on record,",

therefore, persuade me to come to conclusion that P.W. 20 is a pocket witness of the police and has been propped up as a chance witness to establish",

the prosecution case. P.W. 20 claimed on 14. 08.2007 he was proceeding towards his daughter’s school situated near the deceased’s,

residence in a motorcycle. This fact also has not been convincingly established. Firstly, no evidence is forthcoming that the daughter of P.W. 20 was",

studying at Carmel school near the residence of the deceased. Secondly, cross-examination of P.W. 20 established beyond doubt that shortest route",

between his residence and Carmel School would not require the witness to cross the residence of the deceased.,

In the light of the aforesaid discussion, I am of the opinion that neither the evidence of P.W. 3 nor that of P.W. 20 are reliable, convincing and",

establish beyond doubt that the appellants had entered the residence of the deceased in the afternoon of 14.08.2007.,

(b) Amlan hired black Santro car bearing number WB-02T/9299 driven by Ram Kumar Mondal,

Vehicle allegedly used for commission of crime that is, black santro car bearing no. WB-02T/9299 is said to have been driven by Ram Kumar Mondal",

and was let out to Amlan on that day. Prosecution has relied on the evidence of P.W. 16 to prove these facts. Although P.W. 16 deposed the vehicle,

in question was driven by Ram Kumar Mondal on that day, he appears to have no direct knowledge that the said vehicle had been let out to Amlan",

apart from the version of co-accused Ram Kumar Mondal. Contemporaneous entries in the duty roster (Mat Ext.12) show the vehicle had been let,

out to ‘Ram Dada’. P.W. 16 explained that Amlan has been described as ‘Dada’ in the said document. Such explanation appears to have,

been made for the first time in Court and the said witness had not stated before the Magistrate that Amlan had been described as ‘Dada’ in the,

duty roster. Duty roster showed the vehicle had travelled 21 kilometers on that day. Distance from Kalakar Street to Deshopriyo Park is about 12/13,

kilometer. Hence, the vehicle could not have travelled to and from Kalakar Street and Deshopriyo Park in the event it had travelled 21 kilometer only.",

These circumstances are clearly inconsistent with the prosecution theory and improbabilize its case that the vehicle driven by Ram Kumar Mondal,

was utilized by the other appellants to commit the crime, as alleged.",

(c) Exculpatory Statement by Sanjay and his abscondence,

Reliance has been placed on an exculpatory statement made by appellant Sanjay Banerjee during trial and the fact that he was arrested from a hotel,

under a pseudo name as additional circumstances to prove the guilt of the appellants.,

The statement made by Sanjay Banerjee during his examination under section 313 Cr.P.C. is as follows:-,

“On 14.08.07 Amlan met me at 1.00 p.m. at Race Course. Then, we went to a place in front of his house by hiring a taxi. He had asked me to wait",

in a small stall and went to his house. He came out at around 2.00/2.15 p.m. Then we two came to a show room of Bata near Bhawani cinema on,

foot. At around 3.20/3.25 p.m. one black colour Santro car came there, which was driven by Ram. Then, I was asked to board the said car. I found",

that in the said car all the other accused persons of this case were sitting. Then the said vehicle took a right turn from Rash Behari crossing and,

followed the route of the residence of Shyamaprasad Roy. The said vehicle was parked at the right side of the premises of Shyamaprasad Roy.,

Amlan told me that I have failed to sale the said ring and he also told that he would complete the deal on that day and he had asked me to wait in the,

said car and they all proceeded towards the residence of Shyamaprasad Roy. On their way they met two persons who were in their motor bike. At,

around 5.15.5.20 p.m. they all came back. I noted the time from the watch fixed at the dash board of the said car. Amlan gave me Rs.500/- and had,

asked me to go anywhere and he also told me to meet him 2/3 days after that date.,

I have sent a statement from the Correctional Home to this Court during trial and stated these things in my said statement. I was brutally assaulted by,

these accused persons while I was in J/C except Ram Kr. Mondal & Amit Singh they used to sledge that I was giving evidence in favour of police.â€​,

The aforesaid statement is exculpatory in nature. However, it does not confess the commission of murder by the maker or the other accused persons.",

The statement, therefore, does not amount to a confession at all and is inadmissible in law. In this regard, reference may be made to Palvinder Kaur",

Vs. State of Punjab 1 AIR 1952 SC 354, wherein the court observed as follows:-",

“16. …It was observed by Their Lordships of the Privy Council in Narayanaswami v. Emperor that the word “confession†as,

used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the,

crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An",

admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains",

self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the",

offence alleged to be confessed.â€​,

Judging from this perspective, exculpatory statement of Sanjoy Banerjee admitting a gravely incriminating fact does not disclose the commission of",

murder either by himself or any other accused and, therefore, would not qualify as a confession exculpatory or otherwise and is admissible in law.",

The other circumstance relied by the prosecution is that Sanjay Banerjee had boarded a hotel, namely, Crown Lodge under a pseudo name on",

6.9.2007 and was arrested therefrom two days later. P.W. 17, manager of the hotel, has identified Sanjay Banerjee in court and P.W.6 handwriting",

expert has also proved his handwriting on the register. However, mere abscondence of Sanjay and that too much after the arrest of other accused",

persons in the instant case cannot be construed as conduct of a conspirator which binds others under section 10 of the Indian Evidence Act. It is also,

relevant to note abscondence simpliciter would not establish the guilt of the appellant in the absence of any cogent evidence connecting him with the,

crime. When the substratum of the case is founded on shaky and unreliable pieces of evidence fact that appellant Sanjay Banerjee absconded and,

took a pseudo name would not, in my opinion, be sufficient to establish the guilt against the appellant.",

Lapses in investigation,

No effort was made to collect fingerprints and footprints from the place of occurrence and compare them with that of the appellants to prove their,

presence at the place of occurrence. Nature of conversation in course of the numerous calls between Amlan and P.W. 3 was not brought on record.,

Although P.W. 21 Investigating Officer, claimed the deceased made his last phone call to P.W. 18 around 4.53 p.m. on 14.08.2007 (as would appear",

from Ext.8), no investigation in this regard was made. On the other hand prosecution based its case on the evidence of P.W. 3 and 20 who appear to",

be highly unreliable and untrustworthy to prove the presence of the appellants at the place of occurrence.,

Elusive ring â€" Motive of crime,

Motive of the crime, that is, theft of the antique ring is also shrouded in mystery. There is no evidence how the deceased had acquired the antique",

ring. Deceased does not appear to have financial strength to purchase a valuable ring. If the ring were a family heirloom, if the ring was a precious",

one, the fact that it was missing would have certainly been noticed by Salil Prasad Roy and noted in FIR. Evidence of P.W. 5 that Amlan showed him",

the ring on the next day is highly unnatural. P.W. 5 is a gym instructor. There is no evidence to show that he is a jeweller and dealt in antique items.,

He also does not have wherewithal to purchase the ring. Hence, it is highly improbable Amlan would confide in such a Reg. Vs. Hodge (1838) 2 Lew",

227 ,person immediately after the crime and show him the tell tale ring for arranging its sale. The ring was never recovered and no charge under",

section 379 IPC was also levelled against the appellants. These gaps in the prosecution case remain unbridged. Though one cannot deny the fact that,

the deceased met his brutal end on the fateful day, poor investigation and unreliable witnesses not only failed to unravel the missing ring but also failed",

to salvage the prosecution case.,

Conclusion,

Courts while trying cases based on circumstantial evidence as the present one ought to be cautious and must ensure that they do not fall prey to the,

urge of making intelligent cases dehors evidentiary foundation in the righteous endeavour to nail the offender. Pursuit of truth in a court of law is,

founded on forensic principles and admissible evidence. Moral inference of guilt cannot be a substitute to a finding of culpability based on lawful,

evidence. Since time immemorial courts have been warned not to base on vague inferences and conjectures howsoever enticing they may appear to,

be. It may be apposite to recount the sagacious warning of Baron Alderson in while dealing with cases based on circumstantial evidence:-,

“The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to",

force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering",

such matters, to over-reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with",

its previous theories and necessary to render them complete.â€​,

Hence, suspicion howsoever high cannot take the place of proof and I am constrained to hold that the appellants are entitled to the benefit of doubt",

and may be acquitted of the charges levelled against them.,

The appeals are, thus, allowed.",

Ram Kumar Mondal (appellant in CRA 247 of 2014) shall be released forthwith from custody upon execution of bond to the satisfaction of the trial,

court which shall continue for six months in terms of section 437A of the Code of Criminal Procedure, if not wanted in any other cases.",

Other appellants, namely, Amit Singh @ Amit, Amlan Dutta, Arindam Ghosh @ Babla, Bijoy Roy @ Bijoy, Sanjay Banerjee and Bijoy Bahadur Singh",

@ Badal shall be discharged from their bail bonds after expiry of six months in terms of section 437A Cr.P.C.,

Copy of the judgment along with L.C.R. be sent down to the trial court at once. Urgent Photostat Certified copy of this order, if applied for, be",

supplied expeditiously after complying with all necessary legal formalities.,

I agree.,