IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

CRA (DB) 54 of 2024

Sk. Rafijul @ Tutul

Vs.

State of West Bengal

With

CRA (DB) 74 of 2024

With

CRAN 1 of 2024

Ukil Ali @ Akil Ali

Vs.

State of West Bengal

Before: The Hon’ble Justice Arijit Banerjee

&

The Hon’ble Justice Apurba Sinha Ray

For the Appellants in CRA

(DB) 54/24

: Mr. Sudipto Maitra, Sr. Adv,

Mr. Vijay Verma,

Mr. Dwaipayan Biswas

Mr. Anik Bhattacharya

………..Advocates

For the appellants in CRA

(DB) 74/24.

: Mr. Santanu Talukdar

Mr. Monojit Debnath

……….. Advocates

For the State

: Mr. Madhusudan Sur, ld. APP

Mr. Nirupam Dhali

………Advocates

Reserved on : 07.05.2026

Page 2 of 19

Judgment on : 04.08.2026

Apurba Sinha Ray, J.

1. The judgment and order of conviction dated 24.01.2024 and 25.01.2024

passed by the learned Additional Sessions Judge, 2

nd

Court, Tamluk,

Paschim Medinipur in Sessions Trial No. 9(8)16 arising out of POCSO

Case no. 78 of 2014 convicting the appellant under Section s

364/34/302/376D/120B of the Indian Penal Code and also under

Section 6 of the POCSO Act has been challenged on the grounds, inter

alia, that the learned Special Judge has unnecessarily placed reliance

on the alleged last seen theory, that the Court has also misinterpreted

the present law on extra judicial confession, that although several

witnesses improved the version of the prosecution case during trial, the

learned Trial Judge had relied upon those improved version s of the

prosecution witnesses.

2. Mr. Maitra, learned counsel appearing for the appellant Sk. Rafijul @

Tutul has relied upon the following judgments in support of his

contention.

I. Manoj alias Munna vs. State of Chhattisgarh reported

in AIR 2026 SC 241

II. Sharad Birdhichand Sarda vs. State of Maharashtra

reported in 1984 SCC (Cri) 487

III. Smt. Basanti w/o prabhu vs. State of Himachal

Pradesh reported in 1987 3 SCC 227

IV. State of MP through CBI and ors. Vs. Paltan Mallah

and ors. reported in 2005 3 SCC 569

Page 3 of 19

V. Darshan Singh vs. State of Punjab reported in 2024 2

SCC (CRI) 126

VI. Vimal Suresh Kamble vs. Chaluverapinakeo Pal S.P

and anr. Reported in 2003 3 SCC 175

VII. Siddanki Ram Reddy vs. State of Andhra Pradesh

reported in 2010 3 CC.r LR (SC) 28.

VIII. Mahendra Singh & Ors. Vs. State of Madhya Pradesh

reported in 2022 2 Crimes 319 SC

IX. Naresh Anija alias Naresh Kumar Aneja vs. State of

Uttar Pradesh & Anr. Reported in 2025 1 SCC

(CRI)766.

3. The factual matrix of the case is as follows:

‘On 12.10.2014 at 10.35 hrs the de facto complainant of this case

PW-1/father of victim girl, lodged a written complaint before the

Officer-in-charge of Belda P.S. alleging inter-alia that her sixteen-

16 years minor daughter was a friend of ‘S’, another girl of their

village. On 11.10.14 at about 07.00 p.m. ‘S’ called his daughter

over the telephone. Accordingly the victim girl went with her. After

that, his daughter was missing. Thereafter, the local villagers

asked ‘S’ about it. Then she confessed that she forcefully handed

over the victim girl to her boy friend Rafijul @ Sk. Tutul. According

to their prior plan Rafijul came to their village in a maruti car with

his friends and driver of the maruti car and they kidnapped the

victim girl and fled away from that place by the said car.

Thereafter, the villagers went to the house of Rafijul at Khandrui

village but Rafijul was not there as he had fled away. On

12.10.14 at about 09.00 a.m he was informed from Pataspur PS

that he should go to Belda PS. After going there, he came to know

Page 4 of 19

that the dead body of his daughter was found beside O.T Road at

Belda. He identified the dead body of his daughter. It is alleged

that according to their criminal conspiracy ‘S’, her boy friend Sk

Rafijul and Ukil Ali kidnapped his minor daughter by maruti car

no. WB 36A/5049. Thereafter they murdered his daughter and

the body was thrown on O.T Road. The driver of the said maruti

car was Bisu Ghorai. It is further alleged that ‘S’ confessed that

the son of the de facto complainant refused to make any

relationship with ‘S’ as such, out of revenge ‘S’ handed over the

victim to the accused.’

4. After the investigation was over and on receipt of the chargesheet, the

appellants along with another accused Bishu Gorai were charged under

Sections 364/34, 376 D, 302/34, 201/34, 120B of IPC and 6 of the

POCSO Act. After recording the deposition of 28 witnesses, the learned

Special Judge has convicted and sentenced the three accused persons

under Sections 364/34/376D/302/34/120B of the IPC and Section 6 of

the POCSO Act. From the records it appears that Sk. Rafijul filed a

criminal appeal being No. CRA (DB) 54 of 2024 whereas another convict

Ukil Ali @ Akil Ali has filed CRA (DB) 74 of 2024.

5. Both the appeals are taken up for disposal by this common judgment.

6. From the impugned judgment it appears that the learned Trial Judge has

relied upon the allegation that the convicts were present at the spot and

the victim was last seen with the convicts. It is further revealed that the

learned Trial Judge has also relied upon the alleged extra judicial

Page 5 of 19

confession of one CCL, that is, ‘S’ who was the friend of the victim ‘T’.

The learned Trial Judge has also relied upon the deposition of PW 2 Sk.

Raimat who allegedly saw the convicts present at the spot wherefrom the

victim was abducted. He also saw the convicts who were waiting in a

Maruti Van. The learned Trial Judge has considered the deposition of PW

5 Nazrul Mallik who saw the convicts on the date of incident at Kharai

bazar when the present appellant Rafijul alongwith other convicts

stepped down from a steel coloured Maruti van. PW 5 has also deposed

that the convicts told him that they were going to the house of ‘S’. The

allegation that the victim’s mobile phone was recovered from the

possession of the appellant Rafijul was also considered by the learned

Special Judge in favour of the prosecution.

7. It appears that learned Trial Judge has endorsed the view of the

prosecution that although no direct evidence is adduced regarding

murder and rape of the victim girl but common intention of the accused

persons can be inferred from facts and circumstances of the case.

Court’s view:

8. After going through the materials on record, it appears that this is a case

of circumstantial evidence and the chain of events may be narrated as

hereunder.

i) Victim ‘T’ received a phone call from her friend ‘S’, as per the

deposition of the mother of the victim and other witnesses.

ii) The victim left her house to meet her friend ‘S’.

Page 6 of 19

iii) According to PW 2 he saw 3 convicts were waiting in a Maruti

Van.

iv) According to the prosecution, PW 2 saw the victim ‘T’ and her

friend ‘S’ were coming towards a stationary Maruti van.

v) The victim did not return to her house for a considerable period

of time.

vi) Her mother became anxious and started searching for her

daughter.

vii) The daughter being not found, the mother of the victim alerted

her neighbours and her husband.

viii) Search for the victim was carried on at the instance of the

parents and neighbours of the victim.

ix) The victim's friend ‘S’ was not found in her house and

subsequently, she was found in the house of her grandmother

which is a few yards away from her house.

x) ‘S’ was interrogated by the parents and other neighbours.

xi) Initially, she did not disclose anything.

xii) Subsequently, she divulged that she handed over the victim to

her boyfriend and the latter's friends who took the victim to an

unknown place in a Maruti van. The father and other

neighbours including ‘S’ went to the house of the appellants at

Khandrui village but neither the convicts nor the victim was

found.

Page 7 of 19

xiii) In the morning the dead body of the victim ‘T’ was found beside

Orissa Trunk Road.

xiv) Subsequently, the 3 convicts were arrested and their mobile

phones were recovered.

xv) It is also alleged that one mobile phone of the victim was

recovered from the possession of the appellant Rafijul.

xvi) One steel coloured Maruti van was seized from one of the

convicts namely Bishu Ghorai.

xvii) It is alleged that blood stains, signs of semen etc. were found in

the seats and footsteps of the said car and the same were sent

for chemical examination.

Extra judicial confession:

9. Needless to mention, a confession made by an accused outside of Court

or to any person other than a Judicial Magistrate is historically viewed as

a weak piece of evidence in Indian criminal jurisprudence, but at the

same time, it can be said that if certain stringent conditions are fulfilled,

such extra judicial confession can be used by the Court with some

supporting corroborative evidence. Neither Indian Evidence Act, 1872 nor

Bharatiya Sakshya Adhiniyam, 2023 explicitly define the term ‘extra

judicial confession’, but its admissibility and evidentiary value emerge

from the general principles governing confessions. For an extra judicial

confession to form the basis of the conviction, the prosecution must

establish three primary conditions.

Page 8 of 19

Firstly, the voluntariness of confession: The confession must be free from

any threat, inducement or promise as prohibited under Section 24 of the

Evidence Act.

Secondly, the truthfulness as well as trustworthiness of such confession:

The Court must be convinced that the statement is true and made by a

person in a sound state of mind without coercion.

Thirdly, the credibility of the witnesses: Since the confession is proved

through the testimony of the person to whom it was made, the credibility

and independence of that witness are paramount. Therefore, the thumb

rule is that as a rule of prudence rather than law, Courts generally seek

corroboration in material particulars from independent evidence before

relying solely on an extra judicial confession.

10. In this case, the situation is quite different. The prosecution has

relied heavily upon the alleged extra judicial confession of the CCL who

was not tried by the learned Trial Judge during the prosecution of the

appellants since the CCL being a juvenile was being tried separately

under the provisions of Juvenile Justice Act. Therefore, there was no

chance to confront the said accused (CCL) over such alleged confession

nor even during examination under Section 313 Cr.P.C., since trials were

different.

11. In this case the learned Public Prosecutor has categorically argued

that the witnesses namely PW 1 father of the victim girl, PW 7, the

mother of the victim girl, PW 2 Sk. Raimat, PW 3 Sk. Sirazuddin, PW 4

Ilius Mallick, PW 6 Sk. Imran Ali, PW 19 Abdul Hakim Mallick, PW 20

Page 9 of 19

Sartaz Hossain, the brother of the victim have deposed before the Court

that the friend of the victim (CCL) confessed before them that she called

the victim ‘T’ over telephone and thereafter, handed over her to the 3

convicts on the relevant date and time. Apart from PW 20 Sartaz

Hossain, the other abovenamed witnesses have stated before the Court

that ‘S’ further confessed before them that as the brother of the victim ‘T’

refused to carry on his love relation with her, she did the same to take

revenge.

12. In Smt. Basanti w/o prabhu (supra), the Hon’ble Apex Court has

been pleased to hold that extra judicial confession of a co -accused

cannot be used against an accused.

13. In the State of MP through CBI and Ors. (supra), the Hon’ble

Apex Court was also pleased to hold that under Section 30 of the

Evidence Act, the extra judicial confession made by a co-accused could

be admitted only as a corroborative piece of evidence. In the absence of

any substantive evidence against the accused persons the extra judicial

confession allegedly made by another accused loses its significance and

there cannot be any conviction based on such extra judicial confession.

In the case in hand, according to prosecution, the FIR as well as the

statements of three witnesses under Section 164 Cr.P. before the Judicial

Magistrate has revealed that the CCL made such a confession at the

relevant point of time when she was continuously interrogated by the

parents and neighbours of the CCL. The question is whether or not such

alleged extra judicial confession can be the sole basis to convict the

Page 10 of 19

accused. It is well settled that such extra judicial confession of a co-

accused is the weakest piece of evidence and there must be some

substantive piece of evidence in support of such extra -judicial

confession.

14. PW 2 in his statement under Section 164 Cr.P.C. has also

indicated that ‘S’ confessed that she sent victim ‘T’ with her friend Tutul.

She has also stated before them that she knew the house of Tutul and

asked the villagers to accompany her so that the victim could be brought

back. He has made more or less same statement in his deposition. The

statement of PW 6, Sk. Imran Ali before the Judicial Magistrate was that

after visiting the house of the victim on the relevant night of occurrence

he came to know that ‘S’ forced the victim to board the car of Tutul. He

did not divulge from whom he came to know such fact. However, in his

deposition before the learned Court he stated that ‘S’ confessed before

them that she handed over the victim to Rafijul and others. So, there is

an improvement of the prosecution case in this regard at the instance of

PW 6.

15. PW 5 Nazrul Mallick has stated before the Judicial Magistrate that

he also came to know that victim ‘T’ was called by ‘S’ and thereafter ‘S’

compelled her to board the Maruti van of the Tutul. In his deposition, he

has made more or less the same statement. So, he did not hear ‘S’ to

confess. No doubt, the deposition of PW 1 , PW 2, PW 7, PW 3 and the

FIR were consistent in showing that there was confession from ‘S’

regarding the complicity of the appellants but such alleged confession of

Page 11 of 19

a co-accused cannot be used against other accused persons unless there

are other materials showing the involvement of the said other accused

persons.

The missing links:

16. In this case, it appears that the prosecution has tried to bring

other materials on record in support of the involvement of the present

appellants in commission of the crime. According to the prosecution, the

mobile phone of the victim/ the mother of the victim was recovered from

the possession of the present appellant Rafijul without sim card. The

seizure list witnesses turned hostile. No effort was taken from the side of

the prosecution to place such mobile phone without sim card for Test

Identification with the help of the parents of the victim. Even during their

examination before the Trial Court the said mobile was not shown to the

parents of the victim to identify the same as mobile phone of the victim

or her mother. The prosecution has relied upon some CDRs but they

have not been marked as Exhibits. Although the prosecution has tried to

show from CDRs that the mobile phone of the mother of the victim

received calls from the phone numbers of other concerned persons, the

same does not prove that the mobile without sim card allegedly recovered

from Rafijul actually belonged to the victim or her mother. Moreover, the

CDR remains unexhibited. This is a serious shortcoming in the case of

the prosecution. Had it been proved beyond doubt that the mobile phone

of the victim or her mother was recovered from the possession of the

Page 12 of 19

appellant Rafijul, it would have given sufficient strength to the

prosecution case against the appellant.

17. Furthermore, the FSL report remains inconclusive. There is no

matching of DNA of the convicts with the vaginal swab of the victim.

Voluntariness of the alleged confession:

18. Another aspect which should not be lost sight of by us is that the

depositions of some of the witnesses are to the effect that initially the

friend of the victim i.e. ‘S’ did not divulge anything but subsequently,

when she was pressurised by her father and PW 3 Sk. Serajuddin, a

member of the then Panchayat, ‘S’ allegedly confessed before them that

she had compelled the victim to board the Maruti van brought by the

appellant and his friends for abduction of the victim. Therefore, the

alleged confession made by ‘S’ cannot be said to be made voluntarily or

made without coercion. In view of the above the alleged extra judicial

confession made by ‘S’ cannot be said to be a legal one and is thus not

acceptable in the eye of law.

Last Seen Together: Improvement of the case during trial

19. Nobody saw the victim with the appellant Rafijul and his friends in

the said Maruti van.

20. In this case, although PW 2 Sk. Raimat has stated before the Court

that he saw three convicts were waiting in a Maruti van at the relevant

point of time and he saw that victim ‘T’ and her friend ‘S’ were coming

towards the Maruti van, PW 2 did not state such thing at the time of his

Page 13 of 19

examination under Section 164 Cr.P.C. If we peruse his statement under

Section 164 Cr.P.C. although he has stated before the Judicial

Magistrate that he saw one Maruti van was standing on the north-

eastern corner of Chaltapukur, he did not mention that he saw three

convicts were waiting in the said Maruti van. This is obviously an

improvement of the prosecution case by the PW 2 during trial.

21. PW 5 both at the time of recording his statement under Section

164 Cr.P.C. and also at the time of his examination before the Court has

stated that on the relevant date and time he saw the convicts in a Maruti

van at Kharaibazar and one of them had disclosed that they are going to

the house of ‘S’.

22. In Darshan Singh (supra), the Hon’ble Apex Court was pleased to

observe that if the Prosecution Witnesses had failed to mention in their

statement under Section 161 Cr.P.C. about the involvement of an

accused, their subsequent statements before Court during trial regarding

involvement of that particular accused cannot be relied upon.

23. In Vimal Suresh Kamble (supra), the Hon’ble Apex Court has

reiterated the same principle.

24. It appears that during the recording of his statement under Section

164 Cr.P.C. PW 2 did not say that he saw the 3 convicts waiting in the

Maruti van. From the record it transpires that the said convicts were not

placed in TIP during investigation and PW 2 was not asked to identify

those accused as the persons who were allegedly waiting in the Maruti

van. Although there was no TIP, PW 2 identified the convicts on the dock

Page 14 of 19

after a considerable period of time. Therefore, such evidence of PW 2

cannot be said to be free from blemishes since, it is very much difficult

for any person to identify the accused after a long period of time

particularly when those persons were not known to PW 2. PW 5, has

categorically stated that he saw the three accused coming down from a

steel coloured Maruti van at Kharaibazar. Although the said Maruti van

was seized, the same was not placed for identification with the help of

PW 2 and PW 5.

25. Although, the depositions of PW 2 and PW 6 show that they had

deposed categorically that victim ‘T’ and her friend ‘S’ were last seen

together, no evidence is forthcoming that the victim was seen alongwith

the three convicts at the relevant point of time. It is true that depositions

of some of the witnesses reveal that the alleged place of abduction was a

desolate place and if the abduction of a girl were done therefrom, there

was least chance to witness such abduction. That is a vital point in

favour of the prosecution. But it appears that the prosecution is under a

duty to prove the involvement of the present convicts with the

commission of the crime. It appears that although blood stains and

semen were found in the seats or footsteps of the seized car, the FSL

report remained inconclusive and did not support the prosecution case.

Page 15 of 19

Circumstantial Evidence:

26. Needless to mention that even if there is no direct evidence, a case

can be proved on the basis of circumstantial evidence. The essential

principle of applying circumstantial evidence is well known. However, for

recapitulation, we must say that the chain of events is to be established

in such a way that there cannot be any doubt that no other person apart

from the accused is responsible for the commission of the offence. In this

case, there are circumstances/events, but we have no doubt that the

chain of events is not complete and sometimes we have found that the

chain is broken and therefore, the conviction cannot be upheld on the

basis of such circumstantial evidence. In the case in hand nobody saw

the victim to get into the steel coloured Maruti van. There is no evidence

that the victim was seen lastly with the appellants. The alleged recovery

of the mobile phone of the victim/her mother from the possession of the

appellant Rafijul was not proved beyond doubt; the said mobile phone

was not placed for identification by the parents of the victim to verify that

the said mobile phone belonged to the victim /her mother and the same

was recovered from the possession of the appellant Rafijul without sim

card. The CFSL report does not prove that the alleged blood stain and

sign of semen belonged to the victim and the appellants respectively.

Therefore, we have no doubt that there are missing links and the

prosecution has failed to prove the essential ingredients of foundational

facts.

Page 16 of 19

27. In Manoj @ Munna (supra) the Hon’ble Supreme Court has

discussed the landmark judgment of Sharad Birdhichand Sarda

(supra). In Sharad Birdhichand Sarda (supra), the Hon’ble Supreme

Court has been pleased to lay down the basic principle to the effect that

“it is well settled that the prosecution must stand or fall on its own legs

and it cannot derive any strength from the weakness of the defence.” For

the proper understanding of the principle laid down in the aforesaid

case, the paragraphs 153 and 154 of the said decision are quoted

hereinbelow:-

“153. A close analysis of this decision would show that the

following conditions must be fulfilled before a case against

an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to

be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may be”

established. There is not only a grammatical but a legal

distinction between “may be proved” and “must be or should

be proved” as was held by this Court in Shivaji Sahabrao

Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973

SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations

were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

“Certainly, it is a primary principle that the accused must be

and not merely may be guilty before a court can convict and

the mental distance between ‘may be’ and ‘must be’ is long

and divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they

Page 17 of 19

should not be explainable on any other hypothesis except

that the accused is guilty,

(3) the circumstances should be of a conclusive nature and

tendency,

(4) they should exclude every possible hypothesis except the

one to be proved, and

(5) there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent

with the innocence of the accused and must show that in all

human probability the act must have been done by the

accused.

154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based on

circumstantial evidence.”

28. In the case in hand the said five golden principles as referred to

above are not satisfied.

29. In view of the above we have no hesitation to point out that the

above discrepancies found in the prosecution case were not properly

considered and appreciated by the learned trial judge who relied upon

the extra judicial confession of a co-accused, last seen together theory

and recovery of the alleged mobile phone of the victim from the

possession of the appellant Rafijul without scrutinising that such

available materials are unacceptable in the eye of law as clinching

evidence against the convicts.

Page 18 of 19

Juvenility of the appellant Ukil Ali:

30. During pendency of this appeal the plea of juvenility of another

appellant Ukil Ali was taken and this Court directed the learned Chief

Judicial Magistrate to make an enquiry regarding the plea of juvenility in

accordance with law. By a report dated 20.12.2025 the learned Chief

Judicial Magistrate has categorically stated that the appellant Ukil Ali

was minor at the time of occurrence as per report of the concerned

school where he studied for sometime. We have considered the said

report and we have found that such enquiry was done on the basis of

cogent materials and we have no different opinion as to the juvenility of

the appellant Ukil Ali at the relevant point of time. In the said report the

mother of the appellant Ukil Ali disclosed that she was unable to produce

relevant documents concerning the age of the appellant Ukil Ali before

the learned Trial Judge and obviously the plea of juvenility was not taken

up by the said appellant properly before the learned Trial Judge.

However, as it appears that the appellant Ukil Ali was a minor at the

time of the alleged commission of offence, the trial and the judgment of

conviction and order of sentence dated 24.01.2024 and 25.01.2024

against the appellant Ukil Ali cannot be sustained under the law since

the trial was conducted by the learned Additional Sessions Judge, 2

nd

Court, Tamluk, Paschim Medinipur without having any jurisdiction to try

the juvenile and accordingly the judgment of conviction and order of

sentence dated 24.01.2024 and 25.01.2024 so far as regards the

appellant Ukil Ali is set aside. The appellant Ukil Ali has already been

Page 19 of 19

released on bail on executing personal bond. His personal bond is

discharged.

31. Accordingly, CRA (DB) 54 of 2024 and CRA (DB) 74 of 2024 are

hereby allowed on contest. The judgment and order of conviction dated

24.01.2024 and 25.01.2024 passed by the learned Additional Sessions

Judge, 2

nd

Court, Tamluk, Paschim Medinipur in Sessions Trial No.

9(8)16 arising out of the POCSO Case no. 78 of 2014 convicting the

appellant Rafijul @ Tutul and Ukil Ali are hereby set aside. They are

acquitted from the charges. The appellants be released from their

custody immediately, if not already released, unless they are required to

be in custody in connection with any other case.

32. Accordingly, CRA (DB) 54 of 2024 and CRA (DB) 74 of 2024 with

connected applications, if any, are hereby disposed of.

33. Urgent photostat certified copies of this judgment, if applied for,

be supplied to the parties on compliance of all necessary formalities.

I Agree.

(ARIJIT BANERJEE, J.) (APURBA SINHA RAY, J.)