Form No: J(1)

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Anuj Singh

CRIMINAL APPEAL NO. 169 OF 2012

MalayGhosh and Anr.

v.

State of West Bengal.

For the Appellant No.1 : Mr. Faziur Rahaman

Mr.R. Hahaman

Ms. Sampurna Ghosh

Mr. Saptak Naskar

Ms. Sananda Bhattacharjee

Mr. Debendra Nath Saha

Mr. Debraj Porey

Ms. Sukanya Sahoo

Mr. Parichay Pathak

Ms. Joshika Chatterjee

.......Advocates

For the Appellant No.2 : Mr. Sekhar Basu, Ld. Sr. Adv.

Ms. Munmun Tewary

Mr. Gourav Sarkar

........Advocates

For the State : Mr. Rajendra Banerjee

Mr. Aditya Ratan Tiwari

Mr. Arka Naha

........Advocates

Hearing concluded on : 17.09.2026

Judgment pronounced on: 14.10.2026

ANUJ SINGH, J:.

1. A six and a half year old child stepped out of her home on an

ordinary evening to visit a familiar neighbour. She did not return.

What casually began for her parents as a search for their daughter,

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ended with a discovery that no parent could bear. Next morning,

the child was found dead in a bag under a cotinside the room of

the neighbour, whom she fondly called, „Malay Kaku‟. The primary

question in this appeal is whether the evidence establishes that the

appellants are guilty of murder of the child. The trial Court found

the appellants guilty.

2. The present appeal is preferred against the Judgment dated

January 30, 2012, and the order of sentence dated January 31,

2012, passed in Sessions Trial No. 54 of 2011 in Sessions Case No.

235 of 2011, corresponding to Ragunathpur Police Station Case

No. 64 of 2011, dated July 22, 2011, registered for investigation

into the offences punishable under Section 363/302/201/34 of the

Indian Penal Code (State of West Bengal v. MalayGhosh and

another).

3. By the impugned judgment, the trial court convicted the appellants

for commission of offences punishable under Section 302/34 of the

Indian Penal Code and, sentenced each of them to suffer rigorous

imprisonment for life and to pay a fine of Rs. 10,000/- and in

default, to suffer rigorous imprisonment for further one year. For

the offencespunishable under Sections 201/34, they were

sentenced to rigorous imprisonment for 7 years and to pay a fine of

Rs. 2000/- and in default, to suffer further 6 months of rigorous

imprisonment. The trial court directed that all the sentences of

imprisonment would run concurrently.

I.PROSECUTION CASE

4. Instant case was registered on the basis of a written complaint

lodged by one,MathuranathDeogharia, PW-1 at the Raghunathpur

Police Station on July 22, 2011. The complainant informed the

local Police Station that on July 21, 2011, at about 6.30 pm, his

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daughter, namely Tamalika alias Pupun (hereinafter referred to as

„Tamalika‟), aged about 6 ½ years, told her mother that she was

going to the house of Malay Kaku. Tamalika used to frequently visit

the house of Malay Kaku. After about 10 minutes, the wife of PW-1

namely,MitaliDeogharia, being the PW-10, went searching for

Tamalika. When she reached the house of the appellants, their

room was closed from inside, and Priya Ghosh, the appellant No. 2,

informed PW10 that Tamalika did not come to their house. PW10

then inquired about Tamalika in other houses of the compound,

but she was nowhere to be found. Hence, she returned to the

house of appellants, but was again informed that Tamalika did not

come to their house. Soon thereafter, some children/friends of

Tamalika told the PW-1 that they had seen Tamalika enter the

house of appellant No. 1. On the basis of such complaint,

Raghunathpur PS being GDE No. 903 dated July 21, 2011, was

recorded.

5. Curiously, the appellants did not come to the complainant's

house to inquire about the whereabouts of Tamalika, which created

a reasonable suspicion in their minds. After a night long search,

the police reached the house of the appellants and inside their

room, found the dead body of Tamalika inside a large blue-black

bag lying under their cot. Several persons witnessed the recovery of

the dead body from the residence of the appellants. Upon such

discovery, local people started to assault Malay, but were stopped

by the policemen.

6. Raghunathpur Police Station case no. 64 of 2011, dated July 22,

2011 was registered for investigation into the offences punishable

under Sections 363/ 302/ 201/ 34 of the Indian Penal Code

against the appellants. Upon completion of the investigation, the

police submitted Charge Sheet no. 74 of 2011 dated September 24,

2011 under Sections 363/302/201/34 of the Indian Penal Code

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against the appellants. Thereafter, the case was committed to the

Court of Sessions Judge, Purulia who took cognizance of the

offence on September 30, 2011. In the course of the proceeding,

charges under Section 302/34 and Sections 201/34 of th e Indian

Penal Code were framed against both the appellants, who pleaded

innocence and claimed to be tried.

7. The prosecution examined as many as 24 witnesses in support of

the prosecution case. Including PW1, the deceased's father, 11

witnesses were examined who saw the recovery of the dead body

from the appellant's room, namely, PW2, PW3, PW4, PW5, PW6,

PW8, PW10, PW12, PW15, and PW20. Significantly, PW7, the

child's friend, was examined as the witness who saw the deceased

enter the house of the appellant. The post mortem was conducted

by Dr. Amal Nath, PW17, who stated that the death was caused by

asphyxia caused by strangulation/throttling and was antemortem

and homicidal in nature.

8. The defense examined no witness.

II.ORAL EVIDENCE

9. PW-1,MathuranathDeogharia, the father of the victim and the de

facto complainant, deposed that he resided as a tenant with his

family in a rented house at Raghunathpur. Both the appellants

were also tenants under the landlord,HaradhanGarain. He stated

that on July 21, 2011, his daughter went to the house of the

appellants after her tuition and did not return. Mitali Deogharia,

mother of the victim, went over to the accused person's house in

search of the daughter and found the door bolted from inside.

Upon calling Priya Ghosh, the appellant No. 2, she replied that she

was changing her dress and Tamalika was not there. PW1 deposed

that despite the frantic searches, with the involvement of

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neighbours, and the fire brigade searching the pond (doba) in their

campus, the child could not be found. Thereafter, announcements

were made through mikes, and the family decided to guard the

campus overnight so that none of the residents could leave. Since

the appellants did not come back to ask about the missing girl, it

raised a suspicion in everyone's mind. PW1 deposed that early next

morning, the appellants tried to flee the compound, but were

intercepted by Mithu Pathak, PW 4 and others who stopped them.

Raghunathpur PS was informed about the incident. Police arrived

at the campus for search. Police directed the appellant no. 1 to go

and unlock his house. The Police party, PW1, and a few other

neighbours entered the house of the appellants, and ultimately a

blue-black bag was found under the appellants cot, containing the

dead body of the child covered under pieces of thermocol. Seeing

this, the neighbours got enraged and assaulted the appellant No. 1.

The police intervened and took the bag with the body of the victim,

along with the appellants, to the police station. PW 6, PW7, PW 8,

and PW 10 have also supported the evidence and have deposed

about the victim‟s disappearance.

10. PW-10, the mother of the victim, in her deposition gave a detailed

description of the incident. She desposedthat Tamalika was 6½

years old and attended nursery school, and that she went for

private tuitions daily. After returning, she usually went out to play,

and how much she was attracted to the aquarium, dolls, and

mobile phones at the house of the appellants, which drew her there

frequently. She deposed that Tamalika went to the house of the

appellants after informing her. She deposed that after 10-15

minutes when she knocked on the house of Appellant No. 2, she,

from inside, stated that Tamalika had not come. She narrated how

searches were done throughout the campus, through fire brigade.

She stated that Appellant No. 1 himself accompanied and took PW-

1 to the railway station on the pretext of searching the child. She

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deposed about the appellants attempting to flee away from the

campus in the early hours of the next morning, and how the dead

body of the child was recovered in her presence. She identified her

daughter's wearing apparel, slippers, the bag, and a locket with

black cord. She also exhibited her statement under Section 164

CrPC, recorded on August 11, 2011, which was marked as Exhibit

10.

11. PW4, Mithu Patak is the sister of PW-10. She deposed that she

was informed about the fact that the child went missing and that

she immediately rushed to the house of the complainant. She

specifically deposed that, in the early dawn of July 22, 2011, the

appellants tried to flee the campus, and that she personally

intercepted them. After which the police was informed, and the

appellants were brought to the police station. She also stated that

she was present when the house of the appellants was searched

and the body of the deceased was recovered from the bag under the

cot. She exhibited her statement under Section 164 C rPC dated

August 11, 2011.

12. PW6, Susmita Sarkar, also a resident of the same campus and

whose room was adjacent to PW1's home, deposed that she

overheard Tamalika telling her mother that she was going to the

house of the appellants on the evening of July 21, 2011. She also

deposed about the attempts made by the PW10, the mother of the

victim, about the appellant no. 2 telling PW10 that she was

changing her dress and the night long search. She also deposed

about the attempt of the appellants to run away from the campus

in the early morning of July 22, 2011, and how the appellants were

intercepted by PW4 and about the subsequent police search, which

led to recovery of the dead body. She was examined under Section

164 CrPC, and her statement was marked Exhibit 7.

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13. PW7, Lata Garain, is a child witness aged about 10 years. She was

examined after the Court examined her competence to depose. She

deposed that Tamalika was her dear friend. She deposed that on

the evening of July 21, 2011, while she was playing in the

compound, she saw Tamalika enter the house of the appellants

after she came back from her private tuition. She further deposed

that her dead body was recovered the next day from the house of

the appellants and identified both the accused. She also exhibited

her statement under Section 164 C rPC, which was marked as

Exhibit 8.

14. PW2, Arindam Chakraborty, the PW3, Jitendra Deogharia, and

PW20, Sheikh Mantu individually deposed that they were present

when the police searched the room of the appellants on July 22,

2011. They stated that the appellant No. 1 produced the key,

opened the room, and took out the bag lying under the cot. They

deposed that the child's body was found inside the bag, covered

with pieces of thermocol.

15. PW5,Tumpa Dubey, a co-tenant, deposed about the search for the

missing child and subsequent recovery of her body. PW12 , Mihir

Gope saw the child's mother knocking at the appellant's door on

the previous evening. PW14,Ramatosh Pathak deposed that he

arrived after learning about the disappearance of the child, and

stated that he guarded the compound's gate overnight and

confirmed the recovery of the dead body on the next morning.

16. PW-15, Asubrata Sarkar alias Bapi Sarkar, a tenant under

HaradhanGarain, deposed that in course of the search of the

missing child, the appellant No. 1 himself instructed PW-15 to

search the small pond (doba) for Tamalika, which he did without

any success. He also witnessed the recovery of the dead body from

the house of the appellants and was a seizure witness.

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17. PW16, Binoy Kumar Patkhak, the Additional Chief Judicial

Magistrate, Raghunathpur recorded the statements under Section

164 CrPC of the appellant No. 2 on July 25, 2011, and the

appellant No. 1 on August 23, 2011. He also exhibited the

statements under Section 164 CrPC of Mithun Pathak and

MitaliDeogharia, recorded on 11th August 2011, marked as Exhibit

20 and Exhibit 21, respectively.

18. PW-17, Dr. Amal Nath, the medical officer attached to Purulia

Sadar Hospital, deposed that he conducted the postmortem of the

deceased girl on July 22, 2011. He reiterated his findings stating

that he found rigor mortis, venous congestion of neck, bluish finger

nails, congested eyes, nail bite marks on the neck (1 on the left

side, 2 on the right side, 1 upper, 1 lower), faint transverse finger

mark above the thyroid on both sides of the neck, mild

subcutaneous hematoma on the right side of the neck with an

intact hyoid, a congested brain with intracerebral hemorrhage at

the base, congested trachea with blood in the tracheal lumen,

bilateral moderate hemithorax, congested lungs with hematomas in

both lower lobes, congested internal organs (liver, spleen, kidneys).

He found no signs of sexual assault or extra external injury on the

body of the victim. He finally opined that the cause of the death

was asphyxia due to strangulation, antemortem and homicidal in

nature.

19. PW-11,HaradhanGarain, the landlord of the appellants, deposed

that the victim's family and the appellants' family occupied rooms

under him in the same premises. He deposed about the compound

and the positions of the rooms. PW-13, Madhu Deogharia, proved

her signature on the seizure list relating to seizure of the bag. She

deposed that the seizure documents were prepared at the police

station.

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20. PW18, ASI Subrata Patra, recorded the initial report of the

disappearance of the child as GDE entry no. 903 dated July 21,

2011. PW21, ASI Dilip Kumar Nath received the written complaint

on July 22, 2011 and registered the formal FIR. PW19, Constable

Barimbaran Pan, carried the dead body to the hospital and

identified it before the postmortem and subsequently handed over

the child's clothing to the police under seizure list.

21. PW9, Ranjit Kumar Halder a photographer, deposed about the six

photographs he took of the body of the deceased at the place of

occurrence. PW-22, ASI Sourav Kanti Das, proved the seizure of

the photographs on September 7, 2011.

22. PW-23, SI Chandrashekhar Pyne, being the investigating officer of

the case, gave evidence regarding the place of occurrence ,

preparing the rough sketch map, conducting the inquest over the

body of the deceased, sending the body for postmortem, seizing the

thermocol pieces and the cot from which the bag was recovered. He

deposed that in view of the commotion at the scene/place of

occurrence, he was unable to seize the bag at the place of

occurrence. He stated that as the angry mob assaulted the

appellant, he declared an unlawful assembly and registered a

separate case against 13 persons for the assault. He further

deposed that some police officers were also injured. He deposed

that he seized the bag, hawai chappal, and thermocol pieces at the

police station. He deposed about the arrest of the appellants,

recording of their statements, and production of the appellant No.

2 for a voluntary statement under section 164 CrPC on July23,

2011 and the recording of various witnesses under Section 161

CrPC. He specifically deposed that the appellant No. 1, while in

police custody, made a disclosure statement which led to the

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recovery in the presence of several witnesses of the bag containing

the dead body of the victim.

23. PW-24, CI Priyabrata Bakshi, the Circle Inspector of Police, took

over the further investigation of the case from July 25, 2011. The

said witness deposed about the subsequent stages of investigation,

namely examining Mithu Pathak and Ramtosh Pathak. Since

MitaliDeogharia could not be examined earlier due to her physical

and mental agony and illness following the loss of her only child,

he examined Jitendra and Gobindo Devgharia, and later on Lata

Garain and HaradhanGarain. He also produced witnesses before

Judicial Magistrate for recording statements under section Section

164 CrPC.

III.DOCUMENTARY EXHIBITS

24. The prosecution has exhibited the written complaint to the police

station, the missing person diary entry, the formal FIR, the inquest

report, the postmortem report, the sketch map, the seizure lists,

photographs of the deceased and the place of occurrence, the

statement of witnesses recorded under Section 164 CrPC and the

statements of the two appellants under section 164 CrPC. These

documents were marked Exhibit Nos. 1, 23, 26, 30, 22, 28 and 29,

9, 11, 13 and 25, 20, 21 and 34 to 36, 16 and 18, and 33,

respectively.

IV.MATERIAL EXHIBITS

25. The prosecution exhibitedthe Bag as Material Exhibit I, the cloth

and locket as Material Exhibit II, the slippers of the child as

Material Exhibit III, the photographs and the negatives as Material

Exhibit IV and V, the thermocol pieces as Material Exhibits XIII,

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the signatures relating to envelope of the photographs, cot and

plywood as Material Exhibits VI and VII.

V.ANALYSIS OF EVIDENCE BY THIS COURT

A.The child's disappearance and entry into the

appellantsroom.

26. PW-10,MitaliDeogharia, in her deposition, has stated about the

victim leaving the house after returning from private tuition, to

play at the house of the appellants. The mother has also deposed

how much the victim girl was attracted to the dolls, aquarium, and

mobile phones at the residence of the appellants. She stated that

on July 21, 2011 at about 6:30 pm, the child left for the house of

the appellants. About 15 minutes thereafter, the mother reached

the house of the appellants and knocked on the door of the

appellants. The appellant No. 2, Priya Ghosh, claimed from inside

that Tamalika had not come to their house and that she was

changing her clothes. PW-10, in her cross-examination, has given

further details of her household routine and specifically denied that

the appellant No. 2 was with them throughout the night searching

for the child. PW7, Lata Garain, who was aged about 10 years,

specifically, deposed before the court that she personally saw

Tamalika enter the house of the appellants in the evening. She

further confirmed that the dead body of the child was recovered

from the house of the appellants the next day. She also exhibited

her statements under Section 164 CrPC, and her evidence

remained unblemished in the course of the cross-examination.

27. PW7, is a crucial eyewitness, who had last seen the Tamalika

entering the house of the appellants. PW6, Susmita Sarkar and PW

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8, Rita Saha, residents of the same campus and whose rooms were

adjacent to the house of PW1, stated that they had heard Tamalika

telling her mother that she was going to the appellants house to

play on the fateful evening. Thus, the direct evidence of PW-10 and

PW-6, PW-7 and PW-8 completely establishes the disappearance of

the child and her entry to the appellant's room.

B.The response of the appellants when inquired about the

child.

28. PW-10, further deposed that soon after Tamalika went to the

house of the appellants, she reached and knocked on the door of

the appellants. The appellant No. 2, Priya Ghosh, did not open the

door and, on the pretext that she was changing clothes, the

appellant No. 2, further denied that Tamalika had visited their

house that evening. PW-10, further deposed how the appellant No.

1 himself led the PW1 to the railway station on the pretext of

searching the missing child. He deposed how the dead body of the

victim girl was recovered the next morning in the presence of police

and neighbours.

29. PW6, in his evidence, has also stated that she heard the appellant

No. 1 say that Tamalika had left. The denial of the appellants

regarding Tamalika visiting their house was ultimately proved false

and unexplained when her dead body was recovered from the same

room the next morning.

C.Search of the child and attempt of the appellants to run

away.

30. PW1, PW 10, PW3, PW 4, PW 5, PW -6, PW 7, PW 8, PW 11, PW12,

PW 14, PW 15, and PW 18 all deposed as to how the search for the

missing child was conducted throughout the evening of July 21,

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2011 and until the morning of July 22, 2011, when the dead body

of the girl was recovered from the room of the appellants. PW4,

Mithu Pathak has deposed that on the early dawn of July 22,

2011, the appellants tried to flee the campus, and that PW-4 had

personally intercepted them and prevented them from running

away.

D.Recovery of the body of the child in the room of the

appellants.

31. PW-23, SI Chandrashekhar Pyne deposed that the appellant No. 1

made statements before the police, which led the police to recover

the dead body of the child from his home. PW3 has made extensive

deposition on how the appellant No. 1 led the police to his room,

opened the same by taking out the key of the room from his pocket

and drawing the bag lying under the cot.

32. There were several eyewitnesses to the recovery of the dead body

from the room of the appellants being, PW1, PW2, PW 3, PW 4, PW

5, PW 6, PW 8, PW10, PW 15 and PW 20. The aforesaid discovery of

the dead body happened after a disclosure under Section 27 of the

Evidence Act. It is pertinent to mention that the appellants have

failed to explain the recovery of the dead body from the room of the

appellants.

E.Reason of death

33. PW-17, Dr. Amal Nath is a medical officer attached to Purulia

Sadar Hospital. PW-17 has categorically deposed on the cause of

death as well as the injury (as stated in paragraph 18 above ) that

the victim suffered before death.

F.Two Statements under Section 164 CrPC by the appellants

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34. PW16, Binoy Kumar Pathak, the Additional Chief Judicial

Magistrate, Raghunathpur deposed as the Magistrate who recorded

the statement of Priya Ghosh, the appellant No. 2, on July 25,

2011, and the statement of Malay Ghosh, the appellant No. 1, on

August 23, 2011 after the Superintendent, Correctional Home,

Purulia was directed to produce him. The Magistrate (PW-16), has

deposed and proved that the confessional statements of the

accused persons were recorded verbatim in Bengali, read

out,explained to, and voluntarily signed by the appellants. The PW-

16, has further deposed that such statements were recorded after

due caution and segregation. The said statements of the appellants

No. 1 and 2 were marked as Exhibits 18 and 16, respectively. It

would be evident from the statements made under Section 164

CrPC that both the appellants admitted that the child was

murdered inside their room. It is significant to note thatwhile the

appellant No. 1 has blamed the appellant No. 2 for murdering

Tamalika, the appellant No. 2, in her statement under Section 164

CrPC, has stated that it was the appellant No. 1 who had murdered

Tamalika. A joint reading of both these statements made under

Section 164 CrPC to the Judicial Magistrate would lead to at least

one disputed admitted inference from the aforementioned two

statements that Tamalika was murdered inside the room of the

appellants.

VI.COMPLETE CHAIN OF CIRCUMSTANCES POINTING

TOWARDS THE GUILT OF THE APPELLANTS

EXCLUDING EVERY REASONABLE HYPOTHESIS OF

INNOCENCE:

35. In order to conclude that the appellants had murdered the victim

girl, the circumstantial evidence must be looked into in light of the

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five golden principles described as the panchseel of proof laid down

in Sharad Birdhichand Sarda v. State of Maharashtra , (1984)

4 SCC 116, paragraph 153 . Each incriminating circumstance

must be fully established, and such events relied upon by the

prosecution must only point towards the guilt of the accused,

excluding every reasonable presumption of innocence. These

principles were reiterated inSantosh @ Rajesh @ Gopal v. State

of Madhya Pradesh , 2024 INSC 723 , paragraphs 9 and 10.

Accordingly, we shall first examine whether the circumstances

relied upon by the prosecution have been proved and thereafter

determine whether, taken together, they establish the guilt of each

appellant beyond any reasonable doubt.

36. On examination of the facts stated above and proved through a

competent witness whose reliability could not be shaken, it is

evident that a strong case against the appellant stands

conclusively established.

37. PW-11 has proved that the victim's family and the appellants lived

in separate rooms in the same premises. PW-10 has deposed that

the child was familiar with the appellants and used to frequently

visit their room. This makes the visit of the child to the residence of

the appellants natural. PW10, whose evidence was corroborated by

PW6 and PW8, deposed that the child informed PW-10 that she

was going to the house of the appellants. The evidence of PW7 is

crucial child witness. She witnessed that the victim child entering

the appellants‟ room. The evidence of PW-7, stood unblemished

and firm even during cross -examination. The above evidence

establishes the entry of the victim girl inside the house of the

appellants on the fateful evening. In considering the evidence of

PW-7, being the child witness, we draw inspirat ion from

Suryanarayana v. State of Karnataka , (2001) 9 SCC 129,

paragraph 5 where the Supreme Court has held that the evidence

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of a child witness must be scrutinized with care to assess its

reliability and exclude the possibility of tutoring. The principles

were reiterated inHari Om Alias Hero v. State of Uttar Pradesh

reported in (2021) 4 SCC 345 . In the instant case, PW7' s

competence to depose before the trial court was duly tested by the

judge. PW-7, deposed that while she was playing in the compound,

she saw the victim girl enter the house of the appellants. Her

evidence must therefore be looked at with particular reliability in

the light of the statements of PW6 and PW10, who heard the child

telling her mother that she was going to the house of the

appellants. The evidence of PW7 completely establishes the child's

entry to the room of the appellants.

38. The entry of the victim girl inside the room of the appellants was

soon followed by the mother, PW10, reaching the room of the

appellants, who found that the door was bolted from inside. On

inquiry, PW10 was told by the Appellant No. 2 that the child had

not come. The evidence of PW-10, read with the discovery of the

dead body from the said room, establishes that the appellants were

hiding the fact that the child was inside the room. The immediate

response of the appellants was false and points only towards the

culpability of the appellants. There cannot be any other inference.

There is no evidence to show that the appellants room had no other

entry or exit. In Mohd. Firoz v. State of Madhya Pradesh , (2022)

7 SCC 443, the Supreme Court has considered the significance of

last seen evidence along with the surrounding circumstances,

referring also toSatpal v. State of Haryana, (2018) 6 SCC 610,

paragraph 6. The aforesaid inference is linked with the proximity

of time, possibility of intervening events, and other links proved by

the prosecution. In the instant case, the evidence of the child's

entry to the appellants‟ room must be considered with the reply to

her mother by the appellant no.2 shortly thereafter, the overnight

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search, and the recovery of the dead body from the room the

following morning.

39. In course of the unsuccessful search of the lost child, the attempt

of Malayto show his concern by taking the father (PW-1) to the

railway station for search of the victim, followed by the attempt to

flee the compound the next morning, before the appellants were

intercepted by PW-4, Mithu Pathak also establishes and

corroborates the chain of events.

40. The eventual recovery of the dead body in the room of the

appellants was proved by a series of witnesses who described that

Malay produced the key, opened the room, and drew out the bag

from beneath the cot. This connects the appellants directly with

the access to the room, knowledge of the concealed bag's location,

and their common statement under section 164 CrPC that the

child was murdered inside the room, establishes murder.

41. After the prosecution established the access of the child, her entry

to the room of the appellants, her presence inside their room, and

eventual recovery of the dead body from the said room demanded a

credible explanation from each of the appellants. The appellants

had special knowledge about the events that happened inside the

room on the fateful evening. Their statement under Section 164

CrPC and their subsequent denial of guilt in the course of

examination under Section 313 Cr PC establish that the appellants

had absolutely no defence in the matter. They did not attempt to

provide any explanation, which is a statutory mandate of Section

106 of the Evidence Act. In TrimukhMarotiKirkan v. State of

Maharashtra, (2006) 10 SCC 681, paragraph 15 , the Supreme

Court has laid down the evidentiary difficulty that arises when an

offence is committed in the secrecy inside a house. The law obliges

the inmates of such a house to explain the facts which lie within

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their special knowledge. If no such explanation is forthcoming, the

inference of guilt stands satisfied. The principle was similarly

considered in SabitriSamantaray v. State of Odisha , Criminal

Appeal No. 988 of 2017, decided on May 20, 2022, paragraphs

15 and 17 to 19. The applicability of Section 106 of the Evidence

Act has been explained in Nagendra Sah v. State of Bihar(2021)

10 SCC 725 Paragraph 22. It is evident therefrom that the

prosecution must establish the facts from which an incriminating

inference may arise, and the accused's failure to explain facts

within special knowledge may then result in giving an additional

link to the prosecution case. Such failure of the accused in itself

does not give that additional link if the prosecution has failed to

discharge its initial burden of proof. In the present case, the

recovery of Tamalika's body from the appellants‟ room clearly

shifted the onus of proof upon the appellants to explain the

circumstances which the appellants failed. A similar factual

scenario existed in Ram Gulam Chaudhary v. State of Bihar ,

(2001) 8 SCC 311, where a boy was seen going inside the room of

the accused and was thereafter never seen alive, leading to

recovery of his dead body. The court held that once the prosecution

had proved that the child went inside the house and never came

alive thereafter, the obligation under Section 106 of the Evidence

Act obliged the accused to explain the circumstances of such

death. Their false denials eventually completed the chain of

circumstantial evidence.

42. In view of the aforesaid, the entry of the victim girl into the room of

the appellants, continued dominion and/or control of the

appellants over the said room, the recovery of the concealed dead

body of the victim from the room of the appellant, the evidence of

PW17 establishing death by stra ngulation and homicidal, the

evidence of the statement of both the appellants under Section 164

CrPC, appellants blaming on each other for killing the child,

19

however, both unequivocally admitting that the child was

murdered inside the room leaves no iota of doubt that the child

was murdered by the appellants.

Cases cited by the appellant’s counsel

43. The Appellants' counsel has cited several judgments in order to

argue that the evidence placed on record is not sufficient to find

the appellants guilty of the offence of murder. It is necessary that

each of such cases is discussed.

44. The Ld. Advocate of the Appellants relied on the decision of the

Hon‟ble Supreme Court in Nandu Singh v. State of Madhya

Pradesh, (2022) 19 SCC 301, paras 9 and 11 , to argue that in

cases involving circumstantial evidence, motive is important to

complete the chain of events. In that case, the prosecution relied

only upon „last-seen‟ theory. In the present case, the conviction

does not solely rely upon the last seen theory. The prosecution has

established an unbreakable chain of events through witnesses, and

the sole testimony of PW-7 was not the basis of the conviction. In

Nandu Singh, the prosecution case suffered from several material

deficiencies, unlike the present case. It is now well settled that if a

chain of circumstances establishes guilt then the same cannot be

weakened just because of absence of motive. (See

DhananjoyChaterjee v. State of West Bengal, (1994) 2 SCC

220). Thus, Nandu Singh (supra), in our considered view, is not

applicable to the present case.

45. The Ld. Advocate of the Appellants then relied on the Hon‟ble

Supreme Court‟s decision in Putai v. State of Uttar Pradesh,

2025 SCC OnLine SC 1827, para 43 , to argue the possibility that

the dead body of the child was planted. Putai (supra) is utterly

20

irrelevant to the facts of the present case as the appellants no. 1

lead the police to his room where the dead body was recovered in

presence of several eye witnesses.All of such eye witnesses to

recovery have deposed before the trial court. Such fact is also

corroborated by their deposition and the statements under Section

164 CrPC statements of multiple witnesses. In Putai (supra), the

deceased was found in an open agricultural field. Putai has no

manner of application in the present case.

46. Reliance is then placed on Surendra Koli v. State of Uttar

Pradesh, 2025 SCC OnLine SC 2384, paras 12, 17 and 18 , to

argue that Section 27 of the Evidence Act is not applicable in the

present case since the guilt of the appellants has not been proved

beyond reasonable doubt. In Surendra Koli, the Supreme Court on

analysis of facts of that case found that the requirements of

Section 27 of Evidence Act was not met due to investigative

infirmities, conflict of seizure lists with remand papers, the bones

and other articles already becoming known to the public before the

alleged discovery. To the contrary, in the present case, there exist

no such fault in investigation which can raise any suspicion of the

evidence collected. In Surendra Koli acquittal was primarily due to

investigative lapse and failure of the prosecution to establish the

guilt. Since the present case is not based upon mere suspicion or

conjecture, the decision in Surendra Koli (supra) is not applicable

to the present case.

47. Reliance is also placed on Vinobhaiv. State of Kerala, 2025 SCC

OnLine SC 178, para 8, to argue that in absence of supporting

evidence, mere disclosure evidence is not adequate to direct

conviction. In that case, there were material omissions in the

statements of the two witnesses, resulting in contradictions. The

only incriminating evidence was recovery of knife. The Court held

that there must be supporting evidence to sustain conviction apart

21

from recovery of the weapon. In the present case, there are series of

corroborating and supporting evidence regarding the core

allegations and there are no material contradictions. Thus,

Vinobhai (supra) is not applicable to the present case.

48. The Ld. Advocate of the Appellants then relied on Nazim v. State

of Uttarakhand, 2025 SCC OnLine SC 2117, paras 30 and 40

and Sk. Shanawaz v. State of West Bengal, 2018 SCC OnLine

Cal 16830, para 21, to contend that in cases of circumstantial

evidence, every circumstance must withstand scrutiny and that the

last seen theory is weak evidence. In our considered view, the

factual position of the present case is different, in sense that there

is no such circumstantial evidence which is not properly tested by

cross examination that weakens the prosecution case. Reliance is

then placed on State of Uttar Pradesh v. Wasif Haider, (2019) 2

SCC 303, paras 24 and 25 , andJalikam Khan v. State of U.P.,

(2021) 13 SCC 716, para 70, to argue that benefit of doubt be

given to the Appellants. In the present case, we do not consider

that the appellant deserves any benefit of doubt, as the guilt of the

appellants has been established by a chain of events.

49. Omwati v. Mahendra Singh, (1998) 9 SCC 81, para 9 has been

cited to contend that if there are material infirmities in oral

evidence, no conviction would be ordered based on such

contradictory and/or infirm oral evidence. We find that in Omwati,

apart from inconsistency in oral evidence, there were fingerprints

and bloodstains on weapon which were not checked. There were

overwritings on the panchnamas, etc. In Omwati (supra), the

prosecution case was demolished during cross-examination there

is no factual parity between Omwati and the case at hand, and as

such, a reference to the said decision is distinguishable on facts.

22

50. Reliance is then placed on Sharad Birdhichand Sarda v. State of

Maharashtra, (1984) 4 SCC 116, paras 145 and 153 . Para 153 of

that case lays down the “panchsheel” of circumstantial evidence

and that such tests have not been satisfied. As discussed above,

this court finds that the panchseel principles laid down by the

Supreme Court stand fully satisfied in the instant case.

51. The circumstances unequivocally suggest that the common

intention of both the appellants Nos. 1 and 2, being the husband

and wife, was to commit murder of the victim child and conceal her

dead body inside the room. They initially intended to hide the fact

that the body was lying inside their room, but eventually had no

other option but to lead to the recovery of the dead body of the

victim. The conviction of both the appellants under Section 302

read with Section 34 of the Indian Penal Code stands proved

without any reasonable doubt.

52. In order to prove and sustain a charge under Section 201 IPC the

prosecution must establish, firstly, that the offence has been

committed, secondly, that the accused has caused disappearance

of the evidence regarding the offence so committed or has given

false information regarding the same and thirdly, the accused

persons did so with the intention of screening the offence or the

offender from punishment. See Palvinder Kaur v. State of

Punjab, AIR 1952 SC 354 andSou. Vijaya @ Baby v. State of

Maharashtra, (2003) 8 SCC 296).

53. In the case at hand, the offence of murder has been established

beyond any reasonable doubt. The subsequent act of the

appellants in concealing the dead body of the child was a

calculated and/or desperate attempt to hide the dead body from

being detected. The following acts of the appellants demonstrate

the same. The dead body of the child was hidden inside a

23

blueblack bag. The same was covered with thermocol, possibly with

the sole intent of preventing the odour of the dead body from

coming out. The bag was hidden inside the cot of the appellants.

The room was locked from inside, and when PW-10 inquired about

her child, she was falsely told that the child did not go to the

appellant's house. The appellant No. 1 feigned ignorance a nd

diverted the father to the railway station and directed people to

look for the child in the pond. And lastly, when both the appellants

attempted to run away early morning next day.

54. All the above acts were not passive. Instead, they were deliberate

and positive steps to conceal or hide the dead body, misdirect the

parents, and conceal their act of murder.

Conclusion and findings of this court

55. The trial court has found that Tamalika entered the room of the

appellants and was never seen alive thereafter. After she was last

seen entering the house of the appellant, a dead body was

recovered the next morning inside a bag hidden inside the bed of

the appellant. PW-1, 2, 10, and 20, amongst others, specifically

deposed that Malayproduced the key, opened the room, and drew

out the bag containing the dead body of the child. The knowledge

of the appellant No. 1 regarding the location of the dead body of the

child is fully established by direct evidence of eyewitnesses. The

recovery of the dead body was pursuant to the statements under

Section 27 of the Evidence Act. The above evidence, read with the

postmortem doctors' evidence that the death occurred because of

strangulation.Further, it is pertinent to note the well-settled position of

law that Section 164 CrPC statements are not substantive evidence in

itself, and can be used by trial courts for corroboration or contradiction.

In the present case as well, the trial court used the Section 164

24

statements of both the accused persons to corroborate the statements

made by the witnesses at the previous stage and come to the conclusion.

The statements under Section 164 CrPC made by both the accused

admitting the death inside the room , corroborated the other

evidence and assisted in completing chain of circumstance tharled

the trial court to an irresistible conclusion that the appellants Nos.

1 and 2 jointly committed murder of the victim.

56. It is necessary to emphasise that the conviction of the appellants

rests upon the basic chain of circumstances which the prosecution

has proved through the witnesses examined before the trial court,

each link of which has withstood cross-examination. Firstly, the

child, a regular visitor to the appellants‟ room, told her mother that

she was going there, and PW-7 saw her enter the room on the

evening of July 21, 2011. Secondly, within a few minutes, PW-10

found the door bolted from inside and was told by the appellant No.

2 that the child had not come, which answer was false. Thirdly,

there is no evidence that the appellants room had any other entry

or exit and that the same was in the exclusive occupation of the

appellants. Fourthly, at dawn the next morning the appellants

attempted to leave the compound and were intercepted by PW -4.

Fifthly, the appellant No. 1 produced the key, opened the locked

room and drew out the bag from beneath the cot, in which the

body of the child lay concealed under pieces of thermocol. Sixthly,

PW-17 proved that the death was homicidal, caused by asphyxia

due to strangulation. Each of these circumstances has been fully

established, and taken together they form a chain so complete that

it is consistent only with the guilt of the appellants.

57. Against this proved chain, what happened inside the room

between the entry of the child in the evening and the recovery of

her body the next morning was a fact especially within the

knowledge of the appellants. Section 106 of the Evidence Act

25

required them to explain it. They did not explain whatsoever. They

examined no witness, and in their examination under Section 313

CrPC they merely denied the incriminating circumstances put to

them. They did not explain how the child came to be inside their

room when they had denied her presence, how she came to die

there, or how her body came to be packed in a bag beneath their

cot. Instead, they gave a false answer to the child‟s mother,

misdirected the search, and attempted to flee. The statements of

the appellants under Section 164 CrPC, in which neither of them

disputes that the child died inside the room, only establishes the

prosecution‟s case.

58. We therefore hold that both the appellants knowingly and

intentionally concealed the dead body of Tamalika to hide or screen

their offenceof murder.

59. In the result, we hold that the prosecution has proved the charges

under Section 302/34 and Section 201/34 of the Indian Penal

Code against both the appellants beyond all reasonable doubt. The

chain of circumstances of evidence leading to such a conclusion is

complete and does not reasonably substantiate any conclusion

other than the guilt of the appellants. Consequently, the judgment

of conviction dated January 30, 2012, and the order of sentence

dated January 31, 2012, passed by the learned Sessions Judge,

Purulia, in Sessions Trial No. 54 of 2011 arising out of Sessions

Case No. 235 of 2011, are hereby affirmed in their entirety.

60. Criminal Appeal No. 169 of 2012 is accordingly dismissed.

61. If any of the appellants are currently on bail, their bail bond shall

stand forfeited and/or cancelled forthwith. The appellants are

directed to surrender before the learned Sessions Judge, Purulia,

within a period of 3 weeks from date, to serve out the remaining

26

period of their sentence,failing which, the learned Sessions Judge

shall take immediate steps, including issuing a non -bailable

warrant of arrest, to secure custody of the convicts in accordance

with law.

62. In the event the appellants/appellant are already in a correctional

home, they shall continue to serve their sentence as directed by the

trial court. The appellant herein shall be entitled to the set-off

under Section 428 C rPC for the period of custody alr eady

undergone during investigation or trial of the case.

63. Let a copy of the judgment and order, along with the lower court

records, be sent back to the learned Sessions Judge, Purulia, for

information and necessary compliance.

64. Urgent certified copy of the judgment, if applied for, be supplied to

the parties upon compliance of all requisite formalities.

I agree,

(Rajasekhar Mantha, J.) (Anuj Singh, J.)