IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Debangsu Basak

And

The Hon’ble Justice Md. Shabbar Rashidi

CRA 402 of 2019

With

CRAN 2 of 2020

CRAN 3 of 2020

Md. Mujahid Khan

Vs.

The State of West Bengal

With

CRA 659 of 2019

Md. Chand @ Sahabaj Akhtar @ Shahbaz Akram & Anr.

Vs.

State of West Bengal

With

CRA 85 of 2021

Md. Samim

Vs.

The State of West Bengal

For the appellant in : Mr. Milon Mukherjee, Ld. Sr. Adv.

CRA 402 of 2019 Mr. Biswajit Manna, Adv.

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For the appellants in : Mr. Saryati Datta, Adv.

CRA 659 of 2019

and CRA 85 of 2021

For the State : Mr. Krishnendu Bhattacharjee, Ld. A.P.P.

Ms. Tanushree Kar, Adv.

Hearing concluded on : 13.07.2026

Judgment on : 21.08.2026

Md. Shabbar Rashidi, J.:-

1. These three appeals are taken up together as they emanate out

of the same judgment and order.

2. The appeals arise out of judgment of conviction dated June 27,

2019 and order of sentence dated June 28, 2019 passed in Sessions

Trial No. 10 of 2012 corresponding to Sessions Case No. 187 of 2011. By

the impugned judgment, the appellants were convicted under Sections

302/201/34 of the Indian Penal Code, 1860 (for short, the ‘I.P.C.’).

3. By the impugned order of sentence, the convicts were sentenced

to suffer rigorous imprisonment for life with a fine of Rs. 20,000/- each

for the offence punishable under Sections 302/34 of the I.P.C. In default

of payment of fine, the convicts were directed to undergo further rigorous

imprisonment for two years. They were further sentenced to suffer

rigorous imprisonment for three years each with a fine of Rs. 5,000/-

each for the offence punishable under Sections 201/34 of the I.P.C. In

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default of payment of fine, they were directed to undergo rigorous

imprisonment for a further period of one year each. All the sentences

were directed to run concurrently.

4. It was submitted by learned Senior Advocate for the appellant

that the evidence on record did not justify the conviction of the

appellants and for such reason, the impugned judgment and order is

liable to be set aside. It was also submitted that the impugned judgment

and order was passed on the basis of conjectures and surmises. The

charges labelled against the accused persons were not established at the

trial.

5. Learned Senior Advocate for the appellant further submitted

that prior to lodging of the First Information Report, a GDE was lodged

with the police. However, such GDE did not disclose the facts that were

proved at the trial. In the GDE, there was no allegation to the effect that

the victim was called upon by some person, rather it was stated that the

victim left his house. The chain of circumstances was not proved at the

trial sufficient enough to point to the guilt of the appellant to the

exclusion of all others. The case being based on circumstantial evidence

and as the chain of circumstances has not been proved pointing to the

theory of guilt of the appellants exclusively, the conviction of the

appellants cannot be sustained.

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6. Learned Senior Advocate for the appellant also submitted that as

per the case of the prosecution, the victim was seen in the company of

the appellants on January 27, 2011 whereas his dead body was

recovered on January 30, 2011. According to the evidence of the autopsy

surgeon, victim died 24 to 36 hours prior to the post mortem. The

prosecution has not been able to explain the time gap between the victim

‘last seen in the company of the appellants’ and ‘recovery of his dead

body’. It was submitted that learned Trial Judge did not consider such

facts and passed the impugned judgment and order.

7. Learned Senior Advocate for the appellant further submitted

that there are material contradictions between the testimonies of the

witnesses examined on behalf of the prosecution. It was submitted that

as per the evidence, the victim was called upon by the appellant Sk.

Samim and both of them entered into Khan Marriage Hall. It was also

submitted that there were so many shop rooms around Khan Marriage

Hall. However, no evidence was brought on record by the prosecution

that the family members of the victim enquired from the said shop

owners. The said shop owners have not been examined on behalf of the

prosecution as witnesses. Learned Senior Advocate for the appellants

also submitted that as per the evidence, victim was called upon from his

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house while he was taking lunch, however, autopsy surgeon did not find

any food particles from the body of the victim.

8. Learned Senior Advocate for the appellant also submitted that

the place of occurrence has not been established by the evidence on

behalf of the prosecution. According to the case of the prosecution, the

victim was called upon by one of the appellants and they went into Khan

Marriage Hall whereas PW 11 had stated that the deceased and

appellant, Sk. Samim were talking about going to Janazah Hall.

9. Learned Senior Advocate for the appellant also submitted that a

blood stained lungi said to be belonging to the victim was recovered at

the instance of the appellant, however, serological examination failed to

determine the blood group of the blood stained lungi. Moreover, the

investigating agency seized a blood stained lungi as well as a blood

stained full pant both said to be belonging to the victim. It was

contended on behalf of the appellants that the learned Trial Court did

not appreciate that both lungi and full pant cannot be worn by the victim

at the same time.

10. Besides that, learned Senior Advocate for the Appellant also

submitted that the evidence is solely based on circumstantial evidence

and the prosecution has failed to explain the missing links in the chain

of circumstances which vitiate the prosecution case. Motive of the crime

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has also not been proved at the trial which is necessary in a case based

on circumstantial evidence. Learned Senior Advocate submitted that the

prosecution has not been able to bring home the charges labelled against

the appellants and, as such, prayed for setting aside the impugned

judgment and order.

11. On the other hand, learned Advocate appearing for the State

submitted that the prosecution has proved the charges labelled against

the appellants with the help of convincing evidence led at the trial. It was

further submitted that the prosecution has proved each and every link in

the circumstances which point to the guilt of the appellants. Learned

Advocate for the State submitted that the learned Trial Judge was quite

justified in passing the impugned judgment dated June 27, 2019 and

order of sentence dated June 28, 2019.

12. Learned advocate for the State further submitted that since, the

victim was last seen alive in the company of appellants, the appellant

owed responsibility to explain the circumstances as to when he parted

with such company in terms of the provisions of Section 106 of the

Indian Evidence Act, 1872. In support of such content ion, learned

advocate for the State relied upon 2024 SCC OnLine SC 12 (Perumal

Raja alias Perumal vs. State Rep. by Inspector of Police), (2018) 6

Supreme Court Cases 610 (Satpal vs. State of Haryana), (2023) 5

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Supreme Court Cases 534 (Ram Gopal vs. State of Madhya Pradesh)

and 2015 SCC OnLine Cal 1057 (State of West Bengal vs. Laxmi

Kanta Karmakar).

13. Learned advocate for the State further submitted that the

medical evidence can be considered in aid of material evidence to prove a

case. Such evidence cannot be taken to disprove the case of the

prosecution. In support of such contention, learned advocated for the

State placed reliance upon (1992) 3 Supreme Court Cases 204 (Mada n

Gopal Kakkad vs. Naval Dubey and Another) .

14. Relying upon (1985) 4 Supreme Court Cases 80 (Pattipati

Venkaiah vs. State of Andhra Pradesh) , learned advocate for the State

further submitted that delay in lodging the FIR was properly explained in

the written complaint. There was no inordinate delay to doubt the

veracity of the prosecution case.

15. Learned advocate for the State also submitted that relative

witnesses examined in the case are reliable and conviction based on

such evidence cannot be doubted. In support of his contention, learned

advocate for the State cited (2012) 4 Supreme Court Cases 79 (Mano

Dutt and Another vs. State of Uttar Pradesh).

16. The brother of the victim lodged a written complaint with

Bhadreswar Police Station on January 30, 2011 on 3:45 hours. It was

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stated in the written complaint that the brother of the de -facto

complainant, namely, Javed Ali @ Jahid went missing at about 1:00 p.m.

on January 27, 2011. He did not return to his house. On January 29,

2011, father of the de-facto complainant lodged a missing diary in this

regard. Later on, the de-facto complainant came to know from one Md.

Samim that he had taken his brother Javed Ali to play Carrom inside

Khan Marriage Hall. The written complaint also stated that he came to

know further that, at that time, Md. Chand, Md. Iktear @ Sagar, Md.

Mujahid Khan and Md. Gazi Khan were also present with the brother of

the de-facto complainant. The de-facto complainant also disclosed that

many more persons were involved. He later came to know that Javed Ali

was killed and his dead body was concealed somewhere.

17. On the basis of such written complaint, Bhadraswer Police

Station Case No. 12 of 2011 dated January 30, 2011 under Sections

302/201/34 of the I.P.C. was started against five F.I.R. named accused

persons. Police took up investigation of the case and on completion of

such investigation submitted charge-sheet against four accused persons.

The offence being exclusively triable by the Court of Sessions, the case

was committed to the Court of Sessions for trial. Accordingly, on the

basis of materials in the case diary, charges under Sections 302/201/34

of the I.P.C. were framed against the four accused persons. Charges were

9

duly read over and explained to the accused persons to which , they

pleaded not guilty and claimed to be tired.

18. In order to prove the charges, prosecution examined as many as

18 ocular witnesses. Besides that, prosecution also relied upon certain

documentary as well as material evidence which were admitted in

evidence at the trial.

19. The de-facto complainant himself deposed as PW 1. He stated

that he was a resident of Telinipara. The victim was his third brother

who was murdered. He further stated that at the time of the incident, all

his four brothers including the victim and his father used to reside in a

common house. His victim brother Javed Ali used to work in

Shyamnagar Jute Mill. There was a Khan Marriage Hall situated at

Akbari Road in front of his house. PW 1 further stated that on January

27, 2011 at about 12:45/1:00 p.m., while PW 1 and other family

members were taking mill, appellant Samim came and called the victim

to Khan Marriage Hall for playing Carrom. At that time, all his four

brothers and father were present in the house. He also stated that when

Samim took his brother from his house, Sagar and Chand were standing

on the road in front of the door of his house whereas Mujahid and Gazi

were standing at the door of the office of Khan Marriage Hall. The

aforesaid persons took the victim brother of PW 1 inside Khan Marriage

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Hall and went upstairs. When the victim was going with the accused

persons, PW 1 was also going outside the door of his house for his duty

at Bhadreswar Mill. PW 1 further stated that Khan Marriage Hall was a

two-storied building. On the first floor, there was a reception hall

whereas on the ground floor, there was about 10/11 shops alongwith the

office of Khan Marriage Hall. The cooking place and septic tank were also

situated on the ground floor. Appellant Mujahid Khan was in-charge of

Khan Marriage Hall dealing with the bookings etc. of such hall.

20. PW 1 further stated that on his return from duty at 5:00 p.m.,

PW 1 found that his brother had not returned. The victim used to do

overtime duty often and PW 1 was informed that he went for overtime but

the victim did not return even in the night and on the following morning.

PW 1 and others tried to trace the victim at several places. Father of PW

1 lodged a missing diary on January 29, 2011. Later on, PW 1 asked the

appellant Samim about the whereabouts of the victim but he d id not

respond properly. Thereafter, PW 1 went to Bhadreswar Police Station

and lodged a written complaint on January 30, 2011 scribed by one Md.

Rejaullah. Such written complaint was read over to him and, thereafter,

he signed on it. He proved his signatu re on the written complaint

(Exhibit-1)

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21. PW 1 further stated that police visited Khan Marriage Hall after

lodging of the written complaint. PW 1 along with Daud, Fakru, Julfikar

Ali Bhutto accompanied the police to Khan Marriage Hall. Police

recovered the beheaded dead body of the brother of PW 1 from inside the

septic tank. There was a cut injury on the left side of the jaw and the

head was severed from the body. Police conducted inquest over the dead

body in his presence.

22. PW 1 also proved his signature in the inquest report (Exhibit-2).

Subsequently, the dead body was sent for post mortem examination. PW

1 further stated that he along with others accompanied the police to the

first floor of Khan Marriage Hall when the appellant Samim took out a

dragger (bhojali) from a room in the western side of Khan Marriage Hall

and handed over the same to the police in presence of PW 1. Police seized

the bhojali under a seizure list. PW 1 as well as 3 and 4 others signed on

such seizure list. He proved his signature on the seizure list (Exhibit-3).

PW 1 also identified the bhojali in Court (Mat Exhibit-I).

23. PW 1 further stated that the appellant Chand also took out a

hansua from the ground floor of hall which was seized by police in

presence of PW 1 and others. PW 1 proved his signature on such seizure

list (Exhibit-4) as well as hansua (Mat Exhibit-II). Appellant Mujahid took

out a blood stained lungi under a water tank on the first floor of Khan

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Marriage Hall in presence of PW 1 which was seized by police under a

seizure list. PW 1 proved his signature on such seizure list (Exhibit-5).

PW 1 also identified the seized blood stained lungi and Carrom board

(Mat Exhibits-III and IV).

24. PW 1 also stated that after two days, he along with Reajuddin,

Julfikar and Sagar accompanied the police to the house of Sagar. Sagar

took out a nepala from under his bed in his house which was seized by

police under a seizure list. PW 1 proved his signature on such seizure list

dated February 4, 2011 (Exhibit-6). The seized nepala was also identified

by him as Mat Exhibit-V. PW 1 identified the appellants in Court. In his

cross-examination, PW 1 admitted that the appellants had cordial

relations with his brother. PW 1 also stated in his cross-examination that

he along with others went to the police station on January 29, 2011 and

stated before police that his brother was called upon by Samim and his

brother went with Samim, Sagar and Chand to Khan Marriage Hall.

Thereafter, he again went to Bhadreswar Police Station on January 30,

2011 and lodged the written complaint. In his cross-examination, PW 1

also stated that police visited his house at 11:00 p.m. in the night on

January 30, 2011 and got the lock of Khan Marriage Hall opened. PW 1

also accompanied the police. He further stated that at that time police

did not make search thoroughly but with a torch light and at that time

13

the seized articles could not be recovered. The police opened the lid of the

septic tank with the help of dom at 12 in the midnight. He has al so

stated that police visited at 11/11:30 in the night either on January 31,

2011 or February 1, 2011. Seizures of the articles were made at 1/1:30

am.

25. Mother of the victim deposed as PW 2. She stated that on the

27

th day at 1:00 p.m. the victim returned from Bhadreswar Mill. She

served meal to her husband and four sons. While they were taking meal,

appellant Samim came there and called upon the victim to Khan

Marriage Hall where Mujahid was waiting for him to play Carrom. PW 2

also stated that when the victim left with Samim, she saw Sagar and

Chand were standing outside the door and Mujahid and Gazi were

standing in front of the gate of Khan Marriage Hall. Mujahid was the

caretaker of Khan Marriage Hall and Gazi was his brother. PW 2 also saw

Sagar, Chand, Samim, Mujahid and Gazi taking her victim son to the

first floor of Khan Marriage Hall. She waited for the victim till the

evening. Thereafter, a search was conducted throughout the locality. PW

2 further stated that on 29

th day, she asked Samim and Mujahid about

the whereabouts of her son Javed to which they replied that they had no

knowledge. On that day, she along with others went to Bhadreswar Police

Station and lodged the First Information Report (F.I.R.). She further

14

stated that on 30

th day at about 11:30/12:00 at night, police came to

Khan Marriage Hall. PW 1 accompanied the police with other people from

the locality. In the Khan Marriage Hall, the dead body of her son Javed

was recovered from the septic tank in a beheaded condition. Police

arrested Mujahid, Chand, Sagar and Samim. She further stated that she

was interrogated by police in connection with the case. She also recorded

statement under Section 164 of the Code of Criminal Procedure , 1973

(for short, the ‘Cr.P.C.’). In her cross-examination, PW 2 stated that she

did not accompany PW 1 on 30

th day to the police station. In her cross-

examination, PW 2 also stated that 1/1.5 year prior to the incident, her

house was being renovated and at that time her family members resided

in Khan Marriage Hall for about a month. She admitted that Mujahid did

not take any rent for such stay.

26. The other brother of the victim was deposed as PW 3. He stated

that on January 27, 2011 at about 1:00 p.m., he was standing in front of

Khan Marriage Hall. Appellants Mujahid and Gazi were standing at the

gate of Khan Marriage Hall which was situated opposite to his house. At

that time, appellant Samim called his brother from his house.

Incidentally thereafter, PW 3 corrected his statement that his brother

was called by Chand and Sagar also for playing Carrom board in the

Khan Marriage Hall. Thereafter, Samim, Chand, Sagar, Mujahid and Gazi

15

along with his victim brother Javed went inside Khan Marriage Hall. The

victim thereafter returned from Khan Marriage Hall. He could not be

found anywhere. PW 3 also stated that a missing diary was lodged in this

regard with Bhadreswar Police Station by his parents but his brother

could not be found. In the night of January 30, 2011 police came and

after opening the gate of Khan Marriage Hall, the dead body of the victim

was recovered from a septic tank on the ground floor of Khan Marriage

Hall. The dead body was beheaded. PW 3 also found cut injury on the left

side of the face of the severed head. PW 3 also signed on the inquest

report (Exhibit-2/1). PW 3 along with his family members identified the

dead body and, thereafter, it was sent for post mortem examination. He

also identified the appellants in Court. In his cross-examination, PW 3

stated that search for his brother was started from the evening of

January 27, 2011.

27. A neighbour of the victim was examined as PW 4. He stated that

the victim Javed was murdered in Khan Marriage Hall and his dead body

was recovered from the septic tank in the marriage hall in a beheaded

condition. A severed head was also recovered. PW 4 further stated that

on February 1, 2011 police from Bhadreswar Police Station came to him

at about 8/9 at night accompanied by the appellants. They were taken to

Khan Marriage Hall. PW 4 along with Fakruddin, Mainuddin and about

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10-12 persons of the locality also entered into Khan Marriage Hall. From

the western room of Khan Marriage Hall Samim brought out a bhojali

which PW 4 identified in Court. The said bhojali was seized by police

under a seizure list. PW 4 proved his signature on such seizure list. The

appellant Chand also brought out a hansua from the middle room of

Khan Marriage Hall which was also seized. PW 4 proved his signature

thereon. A blood stained lungi from near the water tank on the first floor

of Khan Marriage Hall was recovered as shown by appellant Mujahid

which was also seized by police under a seizure list in presence of PW 4.

He signed on such seizure list. PW 4 identified the seized articles in

Court. He identified the appellants in Court.

28. The autopsy surgeon was examined as PW 5. He stated that on

January 31, 2011 he conducted post mortem examination over the dead

body of the victim. He found the dead body in beheaded condition with

decomposition and appeared marbling. The dead body was stained by

blood, mud and sand particles and foul smelling. The body was wearing

green-white half shirt with full jeans pant mixed with mud, blood and

sand. PW 5 also stated that on examination of the dead body, he found

the following injuries:-

“1) Head was separated from remaining part of the body at the

level anteriorly joined above the hyoid bone and below of 1

st

cervical vertebra posterior with evidence of multiple chop wound

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with verifying length and depth transecting all the structures of

neck at that mentioned level;

2) One in sized would measuring 3” x 0.5” up to muscle depth

over the jaw placed with tailing medially;

3) One in sized would measuring 1” x 1/2” up to muscle depth

over right angle of mandible;

4) One in sized would measuring 1” x 1/2” up to muscle depth

over front of left mastoid placed vertically;

5) In sized would measuring 3” x 1/2” up to muscle depth

transversely supra sternal notch;

6) One in sized would measuring 3” x 1/2” up to muscle depth

transversely over anterior neck 1/2” below previous one;

7) One defence cut over left plum between thumb and middle

finger from obliquely measuring 3” x 1/2” up to muscle depth;

8) Cut fracture of cervical second vertebra on body anteriorly of

full diameters. All injuries show evidence of ante mortem in

nature. W/a, hair, nails and lever viscera are preserved, labelled

and handed over to police for examination of FSL.”

29. Upon examination, PW 5 opined that death was caused due to

the effects of aforementioned injuries which were ante mortem and

homicidal in nature which could be caused by sharp cutting weapons

like bhojali, hansua and nepala. In his cross-examination, PW 5 stated

that he conducted the post mortem examination at 2:20 p.m. on January

31, 2011 and he found evidence of early decomposition in the whole body

which indicated that the death was caused about 24/36 hours prior to

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the post mortem examination. He also found vital reaction in respect of

injury No. 7 which suggested that the victim tried to resist.

30. Another neighbour of the victim deposed as PW 6. He stated that

house of the victim was situated just opposite to Khan Marriage Hall. On

January 27, 2011 in the evening, the parents of the victim came to him

and told her son Jahid was missing since noon. They requested PW 6 to

search for their son. PW 6 also stated that the mother of the victim told

him that while Jahid was taking meal, Chand, Samim and Sagar came to

her house and called the victim to play Carrom at Khan Marriage Hall.

PW 6 advised them to lodge a missing diary to the police station. He also

searched for the victim at various places.

31. PW 6 also stated that on January 30, 2011 at about 12 am in

the midnight, he heard hue and crying in front of Khan Marriage Hall

and went there. He saw police personnel had entered in Khan Marriage

Hall. He accompanied the police into the Khan Marriage Hall. One

Mujahid was the caretaker of the said marriage hall. Police at first went

on the first floor of the hall but victim was not found there. Thereafter,

they came down to the ground floor. There was a septic tank near the

kitchen from where the dead body of the victim was recovered. The dead

body was found in a beheaded condition. The severed head was also

taken out from the septic tank. PW 6 signed on the inquest report

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conducted over the dead body. PW 6 also stated that on February 4,

2011 police again came to Khan Marriage Hall with accused Sagar.

Thereafter, he accompanied police to the house of Sagar where Sagar

brought a nepala from under his bed which was seized by police under a

seizure list. PW 6 signed on such seizure list. He proved his signature

under seizure list and identified the recovered nepala. PW 6 identified

accused Sagar in Court. In his cross-examination, PW 6 stated that when

the dead body was taken out from the septic tank, there were wearing

apparels on the body and the severed head had a cut mark on one side of

the head. The beheaded head was under a bag.

32. A shop owner in front of Khan Marriage Hall and cousin brother of

the victim was examined as PW 7. He stated that he had a betel shop

just in front of the Marriage hall. The house of victim Javed was situated

opposite the Khan Marriage hall. He further stated that on January 27,

2011 at about 1:30 p.m., he saw Chand, Samin and Sagar taking along

the victim Javed towards Khan Marriage hall from his house. He also

saw Mujahid Khan and Gazi Khan on the gate of marriage hall. They took

Javed to the first floor. At about 10/11 hours in the night, mother of

Javed came to PW 7 and told that Javed was taken by Chand, Samin and

Sagar to marriage hall for playing carom but he did not return. Hearing

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this, PW 7 started searching for Javed in the night as well as in the

following morning.

33. PW 7 also stated that brother of Javed lodged a missing diary with

Bhadreswar P.S. on January 30, 2011. Thereafter, the family members of

the de facto PW 1 were interrogated. On the basis of statement of PW 1,

police conducted search and recovered beheaded dead body of the victim

from the septic tank on the ground floor of the marriage hall. The severed

head had a cut injury on its left side. Inquest was conducted over the

dead body. PW 7 proved his signature on the inquest report. He further

stated that on February 1, 2011, at about 1:30/2:00 p.m. police came to

Khan Marriage Hall accompanied by the appellants Mujahid Khan,

Chand and Samim and 10/12 persons including the PW1 and PW 7.

Appellant Samim took out a bhojali from western room which was seized.

He proved his signature on the seizure list and identified the recovered

bhojali. Appellant Chand also took out a hansua from the adjoining

room. A blood stained lungi was also recovered from under the water

tank on the roof of marriage hall, as shown by the appellants. The

aforesaid articles along with carom board etc. were seized by police. PW7

was interrogated by police and he also recorded his statement under

Section 164 of the Cr.P.C.

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34. A professional photographer deposed as PW 8. He took some

photographs of the dead body of the victim at 3:30/4:00 a.m. on January

30, 2011, as per the instructions of police. He proved the photographs

and his signature on the seizure list through which, the photographs

were seized. Defense declined to cross-examine PW 8.

35. A local resident deposed as PW 9. He stated that Javed Ali @

Jahid was murdered on January 26, 2011. He further stated that in the

night of January 30, 2011 after about 1:00 a.m. police came and entered

the marriage hall. PW 9 also stated that he heard in the locality that

there was a murder in the marriage hall. From the septic tank of the

marriage hall, one beheaded dead body and severed head of Javed were

recovered. He further stated that on February 4, 2011 police again visited

the place. He heard that Sagar took out a blood stained nepala from his

house from under his beddings. It was seized by police under a seizure

list. PW 9 signed on the seizure list. He proved his signature and

identified the recovered nepala. He identified the appellant Sagar in

Court.

36. The Judicial Magistrate examined as PW 10. He recorded the

statement of witness Sahidan Bibi (PW 2) on February 7, 2011 and on

February 9, 2011 he recorded the statement of witnesses Fakruddin,

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Nazila Khatun and Daud Hussain under Section 164 of the Cr.P.C. He

proved such statements (Exhibits-7/3, 9/4, 11 and 12).

37. A local resident who recorded statement under Section 164 of

the Cr.P.C. was examined as PW 11. She stated that her house was

situated intervened by one house from Khan Marriage Hall. Mujahid

Khan was the caretaker of such marriage hall. She further stated that

she knew Javed Ali who was murdered. She saw Javed last on January

17, 2011 at about 1/1:15 p.m. At that time, she was standing near her

door. Mujahid, Gazi, Chand, Sagar and Samim were standing near the

door of the staircase of the marriage hall. Javed was called by Samim

and, thereafter, all the aforesaid persons went into the marriage hall.

Since then, PW 11 did not see Javed. PW 11 also stated that in the said

night, PW 2 came to her house and wanted to know about Javed to

which PW 11 replied that Javed was with the appellants and will return

back. On the following morning, PW 2 again came to PW 11 asking for

Javed whereupon PW 2 asked Mujahid who was sitting near the marriage

hall. On such query, Mujahid became frightened. Thereafter, PWs 2, 11

and other people of the locality went to the house of Samim in search of

Javed. The mother of Samim told that Samim had gone to work. On

January 29, 2011 a missing diary was lodged. PW 11 further stated that

on January 30, 2011 police came and entered into Khan Marriage Hall

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with para people and PW 1. The dead body of Javed was recovered from

the septic tank of Khan Marriage Hall in a beheaded condition. On

February 1, 2011 police again came to Khan Marriage Hall along with

Samim and others. She also stated that she recorded statement before

learned Magistrate. She identified the appellants in Court. In her cross-

examination, PW 11 stated that although her house and Khan Marriage

Hall were situated in the same row, but it was visible from her house.

She further stated that Mujahid and her family members belong ed to a

political party and they had campaigned against her husband.

38. The recording officer was examined as PW 12. He stated that on

January 30, 2011 he was posted at Bhadreswar Police Station as Officer-

in-Charge. On such day, he received a written complaint from PW 1 and

registered the specific case. The written complaint was forwarded by S.I.

Madhumangal Das posted at Telinipara T.O.P. He knew his handwriting.

PW 12 proved the endorsement made by S.I. Madhumangal Das and

himself on the written complaint. PW 12 also proved the formal F.I.R. In

his cross-examination, PW 12 could not say if any missing diary was

lodged relating to the instant case. He further stated that before receiving

the written complaint, he had information that there was a trouble in the

area.

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39. The scribe of the written complaint deposed as PW 13. He stated

that he wrote the written complain as per dictation of Md. Mainuddin

(PW 1). After writing, he read over the same to PW 1 and, thereafter, PW

1 signed on it in his presence. He proved the written complaint (Exhibit-

1/3).

40. An Assistant Sub-Inspector of Police was examined as PW 14. He

stated that on January 29. 2011 he was posted at Bhadreswar Police

Station and on the said day, he had written G.D. Entry No. 1577 dated

January 29, 2011. He proved the true copy of said G.D.E. (Exhibit-14).

41. An officer from Biology Division of Forensic Science Laboratory,

Kolkata deposed as PW 15. He stated that on August 25, 2011, he was

posted as Assistant Director of Biology Division, FSL, Government of

West Bengal, Kolkata. He proved FSL report dated August 25, 2011 in

connection with Bhadreswar Police Station Case No. 12 of 2011 dated

January 30, 2011 under Sections 302/201/34 of the I.P.C. He further

stated that his office received nine seal packed parcels forwarded by

learned Additional Chief Judicial Magistrate, Chandernagore, Hooghly.

Upon examination, he found that,

“Blood, insufficient for Serological tests was detected in the

scabbard contained, in the item marked G and on the handle of

the ‘Bhojali’ contained in the item marked H. Blood was detected

on the contents of the items marked A (brown stains of the

25

blotting paper). B (brown stains of the blotting paper), C (scalp

hair), D (nail out things), F (wearing apparels), G (‘nepala’ blade).

H (bhojali-blade) and J (lungi). Regarding the origin and group of

blood on each of those items. The report of the Serologist, Govt. of

India, 3 Kyd Street, Kolkata-16, bearing No. 251 MLR dt.

28.07.11 is enclosed.”

He proved his report (Exhibit-15). In his cross-examination, PW 15 stated

that blood insufficient for Serological test was detected in the scribe

report contained in item No. G and on the handle of the Bhojali contained

in the item marked H. He further stated that he did not conduct any

Serological tests and, as such, he was not in a position to prove whether

the blood was of human, bird or any kind of animal. He referred the

received item to the Serologist, Government of India.

42. Another officer from FSL was examined as PW 16. He stated that

on June 24, 2011 he was posted as Senior Scientific Officer (Toxicology),

FSL, Kolkata. On the said date, he prepared a report after examination of

one glass jar and found that no poison could be detected in the viscera

said to be of Javed Ali @ Jahid. He proved his report (Exhibit-15/1).

43. The Serologist was examined as PW 17. He stated that on July

28, 2011 he was posted at Institute of Serology, Government of India. On

the said day, the Director of FSL, Government of West Bengal forwarded

ten numbers of exhibits in connection with Bhadreswar Police Station

26

Case No. 12 of 2011 which were re-numbered as Serial Nos. 1 to 10 in

his office which are as follows:-

“Serial No. 1 was Blood soak blotting paper marked as Ext.A;

Serial No. 2. Blood soak blotting paper marked as Ext.B;

Serial No. 3. Hair marked as Ext.C;

Serial No. 4. Nail cuttings market as Ext.D;

Serial No. 5. Full pant cuttings marked as Ext.F;

Serial No. 6. Jangia cutting marked as Ext.F;

Serial No. 7. Half sleeve shirt cutting marked as Ext.F;

Serial No. 8. Nepala blade swab in cotton wool marked as Ext.G;

Serial No. 9. Vojali blade swab in cotton wool marked as Ext.H;

Serial No. 10. Lungi cuttings marked as Ext.J.”

44. After examination, he found item Nos. 2 to 4 stand with human

blood. Item Nos. 1, 3, 5, 6, 7, 8, 9 and 10 were disintegrated and that is

why the origin could not be detected. He further stated that the blood

group of the stains on item Nos. 2 to 4 could not be determined because

the exhibits were not sufficient for test. Rest of the items could not be

determined because blood stains were disintegrated. PW 17 proved the

report prepared in his pen and signature (Exhibit-15/2).

45. The investigating officer of the case was examined as PW 18. He

stated that on January 30, 2011 he received a written complaint from

PW 1 and forwarded the same to Officer-in-Charge, Bhadreswar Police

Station. Later on, he was endorsed with the investigation of the case. He

27

further stated that on January 27, 2011 at about 13.00 h ours, one

Nejamuddin lodged a GDE informing that his son Md. Javed Ali @ Jahid

was missing from his house. The GDE was registered as No. 1577 dated

January 29, 2011. Following such GDE, PW 18 accompanied by police

force, tried to search out the missing person but could not find him. He

further stated that on January 30, 2011 at 3:00 a.m., PW 1 informed

him on January 27, 2011 at 13:00 hours, Md. Samim, Chand and Sagar

called his brother at Khan Marriage Hall for playing carom. Mujahid

Khan and Md. Gazi Khan were also present there. PW1 also informed PW

18 that he suspected that the aforesaid persons murdered Javed. On the

basis of such written complaint, search for the missing person was

conducted and, ultimately, dead body was found at 3:15 hours from

inside the septic tank of Khan Marriage Hall. The beheaded dead body

was identified by PW 1 and other local people as that of Javed Ali. PW 18

conducted inquest over the dead body and prepared report which he

proved. Thereafter, the dead body was sent for post mortem examination

under a dead body challan (Exhibit-16).

46. In his deposition, PW 18 described the various steps taken by

him during investigation. He visited the place of occurrence and prepared

rough sketch map with index thereof. He also examined av ailable

witnesses and recorded their statement. He also forwarded the accused

28

persons to Court and obtained their police custody. On January 31,

2011, PW 18 also collected the wearing apparels of the victim after post

mortem examination. He also examined the accused persons on

February 1, 2011 and went to Khan Marriage Hall with the accused

persons. Accused Md. Samim made a statement in presence of local

people that on January 27, 2011 at about 1:00 hours they murdered

Javed Ali @ Jahid. As per the statement of Md. Samim, a bhojali was

recovered from western room on the first floor of Khan Marriage Hall. He

proved the seizure list and identified the recovered bhojali. PW 18 further

stated that as per leading statement of accused Shahbaz Akram @ Md.

Chand, a sharp cutting hansua was recovered from the middle room on

the first floor of Khan Marriage Hall which was also seized. Similarly, on

the leading statement of Mujahid Khan, Md. Chand and Md. Samim a

blood stained lungi was recovered. A Carrom board was also seized from

the place of occurrence. He also seized five copies of photographs from

the photographer under a seizure list (Exhibit-10). A nepala was

recovered on the leading statement of appellant Sagar. He also arranged

for recording of statement of witnesses under Section 164 of the Cr.P.C.

and collected copies thereof. He also collected post mortem report and

the viscera and other articles for chemical examination and collected

reports thereof. Upon conclusion of investigation, PW 18 submitted

29

charge-sheet under Sections 302/201/34 of the I.P.C. against five

accused persons.

47. Upon conclusion of the evidence on behalf of prosecution, the

appellants were examined under Section 313 of the Cr.P.C. Such

examination of the appellants as well as the trend of cross examination

of prosecution witnesses goes to show that the appellants claimed

innocence. According to the defense case, the appellants were in no way

connected with the incident. They were falsely implicated in the case.

48. So far as the case of prosecution is concerned, the appellants

were charged and tried for committing murder of victim Md. Javed @

Jahid. According the case of the prosecution, the dead body of the victim

was recovered from the septic tank of Khan Marriage Hall. Police

recovered the dead body and conducted inquest in presence of witnesses.

Thereafter, the dead body was sent for post mortem examination.

Autopsy was conducted by PW 5 and on examination of the dead body,

PW 5 found as many as eight injuries on the body of the victim. Upon

such examination, PW 5 opined that death was caused due to the effects

of the injuries noted in the post mortem examination report, which were

ante mortem and homicidal in nature which could be caused by sharp

cutting weapons like bhojali, hansua and nepala. He also prepared the

post mortem report which he proved as Exhibit-8. Thus, on the basis of

30

testimony of PW 5 as well as Exhibit-8, it is well established that the

victim Md. Javed @ Jahid was murdered.

49. As regards the persons responsible for the murder of victim Md.

Javed @ Jahid, it is the case of the prosecution that the appellants called

upon the victim from his house while he was taking meal. They took the

victim into Khan Marriage Hall for playing Carrom. It has been alleged

that since then, the victim went missing and was never found until his

dead body was recovered. As per the case of the prosecution, since the

victim was last seen together with the appellants, they were responsible

for this murder.

50. According to the case set out in the written complaint lodged by

PW 1, his brother Javed went missing at about 1:00 p.m. on January 27,

2011 and, thereafter, he did not return. His father lodged a GDE on

January 29, 2011 reporting that his son was missing. The written

complaint also stated that PW 1 came to know from appellant Md.

Samim that he took the brother of PW 1 to play Carrom inside Khan

Marriage Hall and, at that time, Md. Chand, Md. Sagar, Md. Mujahid,

Md. Gazi were also present with them.

51. The father of the victim lodged a GDE on January 29, 2011. The

copy of said GDE has been proved as Exhibit-A. The reading of Exhibit-A

goes to show that father of the victim stated in the GDE that his son

31

Javed aged about 17 years was missing since January 27, 2011. It also

stated that the informant continued to search for the missing son until

28

th January, 2011 at the house of relatives and other places but he

could not found.

52. A perusal of Exhibit-A goes to show that although the father of

the victim lodged a missing GDE with the police on January 29, 2011

but such missing diary does not contain any information to the effect

that he was called upon by appellant Md. Samim from his house while he

was taking meal, there is also no averment that while the victim was

called by appellant Md. Samim, other appellants were also present there.

It is categorically stated by PW 1 as well as PW 2 i.e. mother of the victim

that the victim was called by appellant Md. Samim while he was taking

meal at his house at about 1:00 p.m. Both the aforesaid witnesses have

stated in their depositions that when the victim was called upon and

taken alone by appellant Md. Samim, other appellants, namely, Saga r

and Chand were standing on the road and Mujahid and Gazi were

standing on the door of the office of Khan Marriage Hall. PW 3, another

brother of the victim was also present when the victim was called. In his

deposition, PW 3 also stated that the victim was called by Md. Samim as

well as Chand and Sagar also. Such statement of PW 3 is contradictory

to the statements of PWs 1 and 2. Moreover, the case of calling upon the

32

victim and taking along him has not been disclosed in Exhibit-A which

was lodged after two days when the victim went missing. Such case was

first made out in the written complaint lodged by PW 1 on January 30,

2011. There appears no explanation in the case of the prosecution as to

why the written complaint was lodged after three days of the incident. On

January 29

th, 2011, father of the victim lodged a missing diary, not

naming any suspect and even not narrating the incident which was

incorporated in the written complaint lodged one day thereafter.

53. The case of the prosecution also does not offer any explanation

as to why the missing diary was not lodged by the father of the victim

when he lodged a missing diary only one day prior. The written complaint

was lodged by PW 1 on January 30, 2011 at 3:45 hours. Thereafter, the

dead body was recovered from a septic tank of Khan Marriage Hall in the

morning hours of January 30, 2011. An inquest was conducted on the

dead body and, thereafter, the dead body was sent for post mortem

examination. Such post mortem examination was conducted at 2:20 p.m.

at January 31, 2011. The post mortem report as well as testimony of the

autopsy surgeon, PW5, shows that death of the victim occurred within 24

to 36 hours prior to the post mortem examination.

54. If that be so, the death of victim must have occurred within 3-4

hours prior to the recovery of dead body in the wee hours of January 30,

33

2011. Incidentally, according to the testimony of PW12, the police officer

posted at Telinipara T.O.P, he had information of some disturbance in

the locality, though; details of such disturbance were not brought on

record by the prosecution.

55. The circumstances that the prosecution has tried to prove

against the present appellants are that some of the appellants called the

victim from his house at 13.00 hours on January 27, 2011. The ot her

appellants were present there and accompanied the victim into the Khan

Marriage Hall for playing carom. In such way, prosecution has tried to

make out a case that the victim was last seen together alive with the

appellants. However, such circumstances do not appear to be of any

significance for the prosecution. Firstly, the time gap between the last

seen and the recovery of the dead body does not permit to draw an

inference of hypothesis of exclusive guilt of the appellants in the murder

of the victim. Secondly, the victim went missing from the afternoon of

January 27, 2011. He was then allegedly called by one of the appellants

Md. Samim. The victim accompanied the said Md. Samim as well as

other appellants into Khan Marriage Hall. There is no evidence that the

victim and the appellants were seen together after such point of time.

Search at different places were conducted to trace the victim for two

days. Ultimately, finding no trace of the victim, a missing diary was

34

lodged with the police on January 29, 2011. Astonishingly, such missing

diary did not find mention of the case that the victim, before he went

missing, was called by the appellant(s). No suspicion as against the

appellants was disclosed in such missing diary. Such an omission leaves

the case of prosecution highly doubtful.

56. In Perumal Raja (supra), the Hon’ble Supreme Court, taking

note of an earlier decision, observed that,

“40. This Court in Deonandan Mishra v. State of Bihar31 has

laid down the following principle regarding circumstantial

evidence and the failure of accused to adduce any

explanation:

“It is true that in a case of circumstantial evidence not

only should the various links in the chain of evidence be

clearly established, but the completed chain must be

such as to rule out a reasonable likelihood of the

innocence of the accused. But in a case like this where

the various links as stated above have been

satisfactorily made out and the circumstances point to

the appellant as the probable assailant, with

reasonable definiteness and in proximity to the

deceased as regards time and situation, and he offers

no explanation, which if accepted, though not proved,

would afford a reasonable basis for a conclusion on the

entire case consistent with his innocence, such absence

of explanation or false explanation would itself be an

additional link which completes the chain. We are,

35

therefore, of the opinion that this is a case which

satisfies the standards requisite for conviction on the

basis of circumstantial evidence.”

41. The appellant - Perumal Raja @ Perumal in his statement

under Section 313 of the Criminal Procedure Code, 1973

plainly denied all accusations without furnishing any

explanation regarding his knowledge of the places from which

the dead body was recovered. In this circumstance, the failure

of the appellant - Perumal Raja @ Perumal to present evidence

on his behalf or to offer any cogent explanation regarding the

recovery of the dead body by virtue of his special knowledge

must lead to a reasonable adverse inference, by application of

the principle under Section 106 of the Evidence Act, thus

forming an additional link in the chain of circumstances. The

additional link further affirms the conclusion of guilt as

indicated by the prosecution evidence.”

57. Similarly, in the case of Satpal (supra), the Hon’ble Supreme

Court noted that,

“6. We have considered the respective submissions and the

evidence on record. There is no eyewitness to the occurrence

but only circumstances coupled with the fact of the deceased

having been last seen with the appellant. Criminal

jurisprudence and the plethora of judicial precedents leave

little room for reconsideration of the basic principles for

invocation of the last seen theory as a facet of circumstantial

evidence. Succinctly stated, it may be a weak kind of evidence

by itself to found conviction upon the same singularly. But

when it is coupled with other circumstances such as the time

36

when the deceased was last seen with the accused, and the

recovery of the corpse being in very close proximity of

time, the accused owes an explanation under Section 106 of

the Evidence Act with regard to the circumstances under

which death may have taken place. If the accused offers no

explanation, or furnishes a wrong explanation, absconds,

motive is established, and there is corroborative evidence

available inter alia in the form of recovery or otherwise

forming a chain of circumstances leading to the only inference

for guilt of the accused, incompatible with any possible

hypothesis of innocence, conviction can be based on the same.

If there be any doubt or break in the link of chain of

circumstances, the benefit of doubt must go to the accused.

Each case will therefore have to be examined on its own facts

for invocation of the doctrine.”

[Emphasis supplied]

58. In Ram Gopal (supra) also it was held by the Hon’ble Supreme

Court that,

“6. It may be noted that once the theory of “last seen together”

was established by the prosecution, the accused was

expected to offer some explanation as to when and under

what circumstances he had parted the company of the

deceased. It is true that the burden to prove the guilt of the

accused is always on the prosecution, however in view of

Section 106 of the Evidence Act, when any fact is within the

knowledge of any person, the burden of proving that fact is

upon him. Of course, Section 106 is certainly not intended to

relieve the prosecution of its duty to prove the guilt of the

37

accused, nonetheless it is also equally settled legal position

that if the accused does not throw any light upon the facts

which are proved to be within his special knowledge, in view

of Section 106 of the Evidence Act, such failure on the part of

the accused may be used against the accused as it may

provide an additional link in the chain of circumstances

required to be proved against him. In the case based on

circumstantial evidence, furnishing or non-furnishing of the

explanation by the accused would be a very crucial fact, when

the theory of “last seen together” as propounded by the

prosecution was proved against him.”

59. In Laxmi Kanta Karmakar (supra), a Coordinate Bench of this

Court laid down similar views to the following terms, that’s to say: -

“18. On the findings as above, all the incriminating

circumstances relied upon by the prosecution against the

appellant/convict, undoubtedly stands established. The chain

is complete and taking into consideration all the proved facts

collectively, the same leads to irresistible and inevitable

conclusion that it is none else but the petitioner is the author

of the crime and he concealed the beheaded dead body of the

baby to conceal the disappearance the offence of murder.

19. After the most incriminating circumstance against the

appellant that a truncated head of a new born baby was

found inside his temple and when he was alone there being

proved beyond all reasonable doubt, the provisions of section

106 of the Evidence Act comes into play and the burden shift

on him to explain how that severed head came there, as the

same was within his special knowledge. However, the

appellant/convict having failed to offer any explanation as

38

regards to the same and only claimed his innocence, such

failure can very well be considered as an additional link in the

chain of circumstance pointing his guilt. We are therefore of

the opinion, the conviction of the appellant for the offences

punishable under section 302/201 of the Penal Code, 1860 is

completely justified and same deserves no interference. The

order of conviction and sentence passed against the

appellant/convict by the trial court stands upheld.”

60. However, in the case at hand, the victim was last seen in the

company to the appellants in the afternoon of January 27, 2011

whereas, the dead body was recovered on January 30, 2011. Coupled

with that, a missing diary was lodged by the father of the victim on

January 29, 2011 and such diary does not mention any of the appellant

to be suspected in the incident of victim going missing. Moreover, the

medical evidence showed the death to have occurred within 24 to 36

hours prior to post mortem examination which was conducted on

January 31, 2011. In any case, the time gap between the victim going

missing and recovery of dead body cannot be termed as proximate to

oblige the appellants with an explanation under the provisions of Section

106 of the Indian Evidence Act, 1872.

61. Besides that, PW 11 stated in her deposition that although her

house and Khan Marriage Hall were situated in the same row, but it was

visible from her house. She further stated that Mujahid and her family

39

members belonged to a political party and they had campaigned against

her husband. PW 11 narrated her endeavors in search of the victim with

great details. She stated that when she enquired about the victim from

appellant Mujahid, he became frightened. She did not state such fact in

her statement under Section 164 of the Cr.P.C. Taking into account such

statement of PW 11, coupled with the statement of PW 12 that there was

information of turmoil in the locality, possibility of framing the appellants

for political rivalry cannot be ruled out.

62. In Madan Gopal Kakkad (supra), the Hon’ble Supreme Court

observed to the following,

“34. A medical witness called in as an expert to assist the

Court is not a witness of fact and the evidence given by the

medical officer is really of an advisory character given on the

basis of the symptoms found on examination. The expert

witness is expected to put before the Court all materials

inclusive of the data which induced him to come to the

conclusion and enlighten the Court on the technical aspect of

the case by explaining the terms of science so that the Court

although, not an expert may form its own judgment on those

materials after giving due regard to the expert's opinion

because once the expert's opinion is accepted, it is not the

opinion of the medical officer but of the Court.”

63. In the case of Pattipati Venkaiah (supra), in the facts of said

case had found that the delay in lodging the First Information Report was

40

properly explained and the argument that there, was considerable delay

in taking the victim to the hospital could not possibly survive. In the case

at hand however, there appears no explanation on the part of the

prosecution as why the first information report was lodged after a delay

of 3 days when the victim went missing. In addition, there is another

circumstance staring at the face of the prosecution case and that is, a

missing diary was lodged by the father of appellant on January 29, 2011.

In such diary, it was never mentioned that the victim was last seen in the

company of the appellants.

64. In Mano Dutt (supra), the Hon’ble Supreme Court laid down

that,

“33. The court can convict an accused on the statement of a

sole witness, even if he was a relative of the deceased and

thus, an interested party. The condition precedent to such an

order is that the statement of such witness should satisfy the

legal parameters stated by this Court in a catena of

judgments. Once those parameters are satisfied and the

statement of the witness is trustworthy, cogent and

corroborated by other evidence produced by the prosecution,

oral or documentary, then the court would not fall in error of

law in relying upon the statement of such witness. It is only

when the courts find that the single eyewitness is a wholly

unreliable witness that his testimony is discarded in toto and

no amount of corroboration can cure its defect. Reference in

this regard can be made to the judgment of this Court, in Anil

41

Phukan v. State of Assam [(1993) 3 SCC 282: 1993 SCC (Cri)

810].”

65. In the present case, no argument has been advanced on behalf

of the appellants to the effect that their conviction was bad for being

based on the testimony of interested witnesses. All that such witnesses

have testified is that the victim was last seen in the company of the

appellants 3 days prior to his death i.e. on January 27, 2011. Such

witnesses testified that the dead body was discovered on January 30,

2011, post mortem was conducted at 2. :20 p.m. on January 31, 2011

and the autopsy surgeon opined that death of the victim might have

occurred within 24 to 36 hours prior to the date and time of autopsy.

Such evidence led at the trial does not inspire confidence in attracting

the theory of last seen together. The time gap of over 72 hours between

the time when the victim was last seen in the company of the appellants

and the recovery of the dead body can, at no stretch of imagination, be

termed as ‘proximate’ to apply the theory of last seen together.

66. Relying upon the principles laid down in Perumal Raja (supra),

a case was made out that since the alleged offending weapons were

recovered on the basis of statement of the appellants, such recovery

should be taken to be one under the provisions of Section 27 of Indian

42

Evidence Act, 1872, the appellants have been rightly convicted by the

learned trial court.

67. The Hon’ble Supreme Court, in Perumal Raja (supra), observed

in relation to Section 27 of the Indian Evidence Act, 1872, to the

following:

“22. However, we must clarify that Section 27 of the Evidence

Act, as held in these judgments, does not lay down the

principle that discovery of a fact is to be equated to the object

produced or found. The discovery of the fact resulting in

recovery of a physical object exhibits knowledge or mental

awareness of the person accused of the offence as to the

existence of the physical object at the particular place.

Accordingly, discovery of a fact includes the object found, the

place from which it was produced and the knowledge of the

accused as to its existence. To this extent, therefore, factum of

discovery combines both the physical object as well as the

mental consciousness of the informant accused in relation

thereto. In Mohmed Inayatullah v. State of Maharashtra,

elucidating on Section 27 of the Evidence Act, it has been held

that the first condition imposed and necessary for bringing the

section into operation is the discovery of a fact which should

be a relevant fact in consequence of information received from

a person accused of an offence. The second is that the

discovery of such a fact must be deposed to. A fact already

known to the police will fall foul and not meet this condition.

The third is that at the time of receipt of the information, the

accused must be in police custody. Lastly, it is only so much

of information which relates distinctly to the fact thereby

43

discovered resulting in recovery of a physical object which is

admissible. Rest of the information is to be excluded. The

word ‘distinctly’ is used to limit and define the scope of the

information and means ‘directly’, ‘indubitably’, ‘strictly’ or

‘unmistakably’. Only that part of the information which is

clear, immediate and a proximate cause of discovery is

admissible.”

68. In the case at hand, PW 18, the investigating officer, stated in

his deposition that he arrested the appellants, recorded their statements

under Section 161 of the Cr.P.C. However, the recovery of alleged

offending weapons, were made on the basis of statement made by the

appellants in presence of the local people, when the appellants were

brought by police to the Khan Marriage Hall. In any case, the relevant

portions of the statement made by the appellants leading to recovery,

which were recorded by PW 18 under Section 161 of the Cr.P.C., were

not proved at the trial. Besides that, the autopsy surgeon was not

confronted with the alleged offending weapons so recovered. PW 5, in his

deposition had opined that the injuries found on the person of the victim

could be caused by sharp cut ting weapon like bhojali, hansua and

nepala. The prosecution also failed to establish at the trial, that the

alleged offending weapons, said to be recovered on the basis of statement

of appellants were actually used in committing murder of the victim. The

44

serological expert witnesses failed to find the origin of blood found on

such weapon.

69. Therefore, on the basis of discussions hereinbefore, we are not in

a position to hold that the prosecution has been able to substantiate the

charges leveled against the appellants with the help of convincing

evidence. In such circumstances, we cannot sustain the conviction and

sentence of the appellants as imposed by the learned Trial Court.

70. The impugned judgment of conviction and order of sentence are

hereby set aside. The appellants are hereby acquitted from all the

charges levelled against them.

71. Consequently, all the appeals being CRA 402 of 2019, CRA 659

of 2019 and CRA 85 of 2021 stand allowed. Connected applications, if

any shall also stand disposed of accordingly.

72. The appellants be set at liberty forthwith, if not wanted in

connection with any other case, subject to bail bond to be executed by

the appellants under Section 437A of the Cr.P.C. corresponding to

Section 481 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

which shall remain valid for a period of six months.

73. Copy of the judgment and order along with the Trial Court

Records be transmitted to the learned Trial Court forthwith.

45

74. Urgent Photostat certified copy of this judgment, if applied for,

be supplied to the parties on priority basis upon compliance of all

formalities.

[MD. SHABBAR RASHIDI, J.]

75. I agree.

[DEBANGSU BASAK, J.]