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PETITIONER:

STATE OF WEST BENGAL

Vs.

RESPONDENT:

MIR MOHAMMAD OMAR & ORS.

DATE OF JUDGMENT: 29/08/2000

BENCH:

R.P.Sethi, K.T.Thomas

JUDGMENT:

J U D G M E N T THOMAS, J. A young businessman ofCalcutta was abducted and ki

lled. The kingpin of the

abductors and some of his henchmen were later nabbed and

were tried for the offences. The trial court convicted them

under Section 364 read with Section 34 of the Indian Penal

Code, but not for murder, and sentenced them each to

rigorous imprisonment for 10 years. A Division Bench of the

Calcutta High Court rejected the State appeal against the

acquittal for murder and reduced the sentence to a short

term imprisonment restricting it to the period which the

convicted persons had already undergone. The State of West

Bengal as well as the convicted persons filed these appeals

against the said decision of the Calcutta High Court, the

former mainly challenging the acquittal for murder charge

and the latter challenging the very conviction entered

against them.

Narration of material facts of this case, in a brief

manner, is necessary before considering the contentions

raised. The victim of the offence was one Mahesh Kumar

Aggarwal ('Mahesh' for short). He was doing some small

business at Bow Bazar area (Calcutta). He was a bachelor

aged 29 and he was residing with his sister Anushila Devi

(PW-9) in an apartment situated on the Westen Street which

was re-christened as Banbuk Gali. First accused Mir

Mohammad @ Omar and 7th accused Sajid Ali were friends and

associates in many activities indulged in at Bow Bazar area

and the other accused were all the henchmen of Omar.

Sajid Ali (7th accused) wanted Mahesh to part with a

sum of Rs. 50,000/-, almost as a ransom, for allowing him

to deal with his business unobstructed. But the deceased

did not capitulate to the demand and such refusal led to a

dig between the two. It seems Mahesh scored an upper hand

in the dig. The above episode happened about 10-12 days

before the death of Mahesh.

The night of 4.11.1984 became horrendously eventful

for Mahesh. The events started with the gate-crashing made

by some assailants led by A-7 Sajid Ali, into the apartment

of Anushila Devi (PW-9) in search of her brother Mahesh.

Having failed to see him there the assailants left the

apartment after hurling threatening words at the housewife.

About an hour later, Mahesh reached the apartment and was

told by his sister of what happened. Mahesh got frightened

and left the house lest the assailants might come back to

that place.

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By about 11.00 P.M. Mahesh reached the residence of

his friend Abdul Aziz (PW-4) and took asylum therein. But

hardly an hour passed he heard the sound of knocking at the

door and when it was opened they saw one fruit-seller (by

name Moin) standing at the doorstep for conveying a message

that A-1 Omar was waiting outside to see Mahesh. When he

stepped outside he saw A-1 Omar who then asked him to

accompany him. But Mahesh refused to do so. Then A-1 Omar

forcibly took him to a rickshaw to be taken away from that

site, but Mahesh managed to escape therefrom and ran away

towards Giri Babu Lane.

Mahesh reached the place where PW-5 (Mohd. Sayeed)

was residing on Giri Babu Lane and sought asylum therein.

He narrated to PW-5 all what had happened till then. He was

allowed to sleep in that room, and concealed himself beneath

the Chowki of that room.

The time was about 2.30 A.M. when there was knocking

at the door of PW-5's room. He opened the door and found

A-1 and other accused standing just outside. Four of the

accused sneaked into the room and made a prowl for Mahesh

and traced him out in that snoop. The victim was dragged

out of the room. A-1 yelled at the victim: "You escaped

earlier. Now let me see how you would escape again."

Hearing the commotion some of the neighbours woke up

from sleep. PW-6 (Mohd. Idris) went out to see what

happened and then saw some of the assailants (including the

7th accused in this case) forcibly dragging Mahesh towards

the Central Avenue. In the course of such towing A-1 was

showering lathi blows on Mahesh saying "I will beat you and

kill you like a pig". A-7 was heard saying, "As you did not

give the money which we asked for we would finish you

today." They took Mahesh away from the sight and ken of the

residents of that area. Thereafter, Mahesh was not seen

alive by his kith and kin or his friends.

On the same night Mohd. Sayeed (PW5) went to Bow

Bazar Police Station and lodged a complaint regarding the

abduction of Mahesh. An FIR was registered on the strength

of the said complaint. On the next morning PW-9 Anushila

Devi (sister of Mahesh) told her nephew Pawan Kumar(PW-29)

about the abduction of Mahesh. Sometime later, Pawan Kumar

learned that his uncle Mahesh was admitted in Islamia

Hospital. So he rushed to that hospital and made inquiries

and came across the mangled body of his uncle lying in the

hospital with his head tonsured.

PW-3 (Dr. Debabrata Chaudhary) a Reader in Forensic

Medicine conducted post-mortem examination on the dead body

of Mahesh and expressed his opinion that Mahesh was

murdered. Subsequently, all the accused were arrested at

different times. Some articles were recovered on the

strength of the statements elicited from the accused. After

conclusion of the investigation final report was laid

against the seven accused. The case as against the 7th

accused Sajid Ali was split up due to some reasons and hence

the trial proceeded as against the remaining accused.

There is abundant evidence for showing that Mahesh was

abducted by the accused on the night in question. It is

unnecessary to dwell upon that aspect in this appeal,

particularly since the trial court and the High Court have

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held that issue in unison and since no serious attempt was

made before us for disrupting that finding. Sri P.S.

Misra, learned Senior Counsel contended that there would

only be a case of abduction simplicitor, even assuming that

the above position stands unassailable, but such abduction

by itself is not punishable by any provision of the Penal

Code. We are not inclined to consider the said contention

in an academic perspective now, for, prosecution in this

case has put forward a case of abduction for the purpose of

committing murder. It was that case which was found against

the accused by the trial court which finding remained

undisrupted by the High Court.

Abduction takes place when a person is compelled by

force (or such person is induced by any deceitful means) to

go from any place. In this case Mahesh was dragged away by

the accused from two places, first at Chittaranjan Avenue

and when he escaped from the grip of the abductors and

perched himself in a hide out selected by him at Giri Babu

Lane, from there also he was hauled out.

Section 364 IPC says, whoever abducts any person "in

order that such person may be murdered or disposed of as to

be put in danger of being murdered" he commits the offence

punishable under the Section. So the important task of the

prosecution was to demonstrate that abduction of Mahesh was

for murdering him. Even if the murder did not take place,

the offence would be complete if the abduction was completed

with the said objective. Conversely, if there was no such

objective when the abduction was perpetrated, but later the

abductors murdered the victim, Section 364 IPC would not be

attracted, though in such a case the court may have to

consider whether the offence of culpable homicide (amounting

to or not amounting to murder) was committed.

If the words attributed to the abductors can be

believed we have no doubt that the abduction was done for

the purpose of finishing him off. Knowing this position

well, Sri P.S. Misra, learned Senior Counsel made a frontal

criticism on the aforesaid evidence and contended that it is

easy for interested witnesses to put such words in the mouth

of the accused in order to aggravate the dimension of the

offence. No doubt, witnesses can do so. But the question

here is whether the aforesaid version of those witnesses was

a concoction to embroil the abductors into the cobweb of a

serious offence like Section 364 IPC. The reliability of

that part of the evidence can be tested from different

angles.

First is, even in the FIR PW-5 had quoted those words

as spoken to by A-1. It must be noted that when FIR was

given PW-5 had no reason to believe that Mahesh was not

alive. If Mahesh had come back alive it is doubtful whether

police would have seriously followed up the FIR. Next is,

the temper which the assailants exhibited in the house of

the deceased's sister (when she was the sole inmate present

therein), is broadly indicative of the truculence of the

intruders that they went there with some definite purpose.

Mahesh was once caught by them on that night itself by PW-4

and then he was badly handled by them. If their intention

was only to inflict some blows on the victim they would have

stopped with what they did to him at that stage. But when

Mahesh struggled and extricated himself from their clutches

and escaped to another place at Giri Babu Lane these accused

did not stop and they persisted in prowling for their prey

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and succeeded in tracing him out from that different area

and hauled him out violently. Such repeated chase for

Mahesh could, in all probabilities, be for his blood. Thus,

all the broad features of this case eloquently support the

version of the witnesses to conclude that the words

attributed to the accused were really uttered by them.

For the aforesaid reasons, we have no difficulty to

conclude that all the accused abducted Mahesh in order to

murder him.

Now we have to consider the more serious aspect

whether Mahesh was murdered by the abductors. On this

aspect Sri P.S. Misra led his most vocal contention that

the identity of the corpus delicti has not been established

in this case. In other words, the contention is that the

prosecution failed to establish that the dead body on which

PW-30 (Dr. Debabrata Choudhury) conducted the autopsy could

not have been that of Mahesh.

Learned counsel highlighted two seeming

inconsistencies in the evidence to bolster up his contention

on the above score. First is that PW-8 (Dr. Adhikari) who

saw the dead body first estimated the age as 40, whereas

Mahesh was only 29 according to his own kith and kin.

Second is that Dr. Adhikari had noted that the penis of the

dead body had undergone "religious circumcision".

The argument advanced by Sri P.S. Misra, learned

senior counsel on the above material appeared, at the first

blush, formidable. But on a closer scrutiny the said

contention turned out to be very feeble. It must be pointed

out that the doctor who conducted post-mortem examination

(PW-30 Dr. Debabrata Choudhury) did not find any evidence

of such circumcision on the dead body. That doctor is a

specialist in Forensic Medicine and was a senior person. On

the other hand, PW-28 (Dr. Adhikari) was only a stripling

in the profession who had just completed his internship

after his graduation. He said in his evidence that when he

examined the patient he found "the glands penis exposed;

foreskin was rolled back; thus it appeared to be a case of

early circumcision". We do not think that such a slipshod

observation regarding such a vitally important

identification mark can be taken as a seriously observed

feature, particularly when PW-30, a senior doctor, did not

notice any such thing. Similarly, the age estimated by this

novice medical practitioner without conducting any medical

tests in that regard is hardly sufficient to conclude that

the dead body was that of a person aged 40. Even otherwise

the approximation of the age made by looking at the dead

body is not enough to offset the age spoken to by the kith

and kin of the deceased.

On the other side, there is overwhelming evidence to

show that the autopsy conducted on the dead body by PW-30

was that of Mahesh. We find little scope even to doubt the

possibility of some other dead body being mistakenly treated

as that of the deceased while conducting the post- mortem

examination. PW-9 (Anushila Devi) sister of Mahesh, said

that she saw the dead body of Mahesh before it was cremated

and she had absolutely no doubt that it was her brother's.

PW-29 (Pawan Kumar Agarwal) a nephew of Mahesh went to

Islamia Hospital and it was he who first identified the dead

body of his uncle. PW-4 (Abdul Aziz), PW-5 (Mohd. Sayeed),

PW.6 (Mohd. Idris) and PW-11 (Mohd. Afjal) saw the same

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dead body and they had no doubt at all that it was that of

Mahesh.

The post-mortem report made by PW-30 (Dr. Debabrata

Choudhury) shows that the victim was murdered. He noticed

as many as 45 injuries on the dead body which included

fracture of 5 ribs (2 to 6 ) on he left side towards sternal

end, fracture of some of he fingers and extravasaion of

blood on he night side of occipital region and also on he

situs of the rib fractures. The remaining injuries included

a few lacerated wounds, contustions and aberrations. There

was just one minor incised wound on he left pinna. The

right lung was congested. The doctor opined that death of

that deceased had resulted from multiple injuries and

injuries of vital organs and I was homicidal in naure.

The trial court made a fallacious conclusion regarding

the death of the deceased on the premise that the public

prosecutor did not elicit from the doctor as to whether the

injuries were sufficient in the ordinary course of nature to

cause death. The Sessions Judge concluded thus on the said

issue: "There being no evidence on record to show that the

injuries were sufficient in the ordinary course of nature to

cause death, it cannot be said that the injuries noticed by

the autopsy surgeon (PW-30) were responsible for causing the

death of the deceased Mahesh."

No doubt it would have been of advantage to the court

if the public prosecutor had put the said question to the

doctor when he was examined. But mere omission to put that

question is not enough for the court to reach a wrong

conclusion. Though not an expert as PW-30, the Sessions

Judge himself would have been an experienced judicial

officer. Looking at the injuries he himself could have

deduced whether those injuries were sufficient in the

ordinary course of nature to cause death. No sensible man

with some idea regarding the features of homicidal cases

would come to a different conclusion from the injuries

indicated above, the details of which have been stated by

the doctor (PW-30) in his evidence.

We have no doubt that homicidal death of Mahesh had

happened on the same night of his abduction. Now we have to

deal with another crucial issue. Having found that Mahesh

was abducted by the accused in order to murder him and he

was in fact really murdered very soon thereafter can the

accused escape from the penal consequences of such murder.

The trial court has stated on the said crucial issue thus:

"From the discussions made by me in the earlier part of the

judgement it would appear that the accused persons had

forcibly taken away the deceased Mahesh from the premises at

29/2/2A, Giri Babu Lane, Calcutta. There is no iota of

evidence to show that the deceased Mahesh was in the custody

of the accused persons along from 2.30 A.M. to 5.45 A.M.

of 5.11.86.....................There is no evidence worth

the name to show that the accused persons had carried the

dead body of Mahesh to Islamia Hospital and then abandoned

it at the Emergency Department."

The High Court unfortunately did not deal with this

aspect at all. Learned judges made scathing criticism on

the flaws incurred in the investigation and without any

reference to the evidence confirmed the conviction passed by

the trial court.

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Before we consider the said crucial aspect we have to

point out another important circumstance. Sri K.T.S.

Tulsi, learned counsel who argued for the State highlighted

the said circumstance that when A-1 Omar was interrogated by

the Investigating Officer(PW-34) on 12.11.1986 he told the

officer that "I have kept it (a full sleeve bush shirt)

underneath the mattress on the ground in my club room".

Pursuant to the said statement the shirt was recovered

therefrom. It is marked as Ext.XV in this case. It is now

in a torn condition. The statement attributed to A.1 Omar,

and extracted above would fall within the purview of Section

27 of the Evidence Act. If it is believable, it would show

that the said shirt was concealed by the said accused. We

do not find any reason to disbelieve the evidence of the

investigating officer regarding recovery of Ext.XV - shirt.

There are two significant features relating to the

said shirt. One is that PW-5 said that he supplied a shirt

to Mahesh on the same night when he found his wearing

apparels shabby and torn. PW-5 said that when Mahesh was

abducted from his room he was wearing that shirt and PW-5

identified Ext.XV as the said bush shirt. No explanation

whatsoever was offered by A-1 Omar regarding Ext.XV (bush

shirt) except a bare denial regarding it. We have no

difficulty to believe the evidence of PW-34 on that score.

It goes a long way in focussing at the first accused Omar

for the murder of Mahesh.

The other feature has been highlighted by Sri K.T.S.

Tulsi that the bush shirt was subjected to serological

examination at the Forensic Sciences Laboratory and it was

found stained with human blood (vide Ext.40 series). Sri

Harsh Kumar Puri, learned counsel for the appellants in one

of the appeals filed by the convicted persons, pointed out

in his written submissions that the aforesaid circumstance

(FSL test result on the shirt) was not put to the accused

when they were questioned by the Sessions Judge under

Section 313 of the Code of Criminal Procedure. When we

scrutinised the records we noticed that no question was put

to the accused on that score. Consequently we are disabled

from using that feature on the shirt as a circumstance

against the accused.

Even barring that, the following circumstances have

now been well set against the accused: (1) Mahesh was

abducted around 2.30 A.M. by the abductors proclaiming that

he would be finished off. (2) The abductors took Mahesh out

of the sight of the witnesses. He was then wearing a bush

shirt Ext.XV. (3) Within a couple of hours the murdered

body of Mahesh was found in Islamia Hospital without a

shirt. (4) The bush shirt which Mahesh was wearing at the

time of abduction was concealed by A-1 Omar.

The abductors have not given any explanation as to

what happened to Mahesh after he was abducted by them. But

the learned Sessions Judge after referring to the law on

circumstantial evidence concluded thus: "On a careful

analysis and appreciation of the evidence I think that there

is a missing link in the chain of events after the deceased

was last seen together with the accused persons and the

discovery of the dead body of the deceased at Islamia

Hospital. Therefore, the conclusion seems irresistible that

the prosecution has failed to establish the charge of murder

against the accused persons beyond any reasonable doubt."

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The pristine rule that the burden of proof is on the

prosecution to prove the guilt of the accused should not be

taken as a fossilised doctrine as though it admits no

process of intelligent reasoning. The doctrine of

presumption is not alien to the above rule, nor would it

impair the temper of the rule. On the other hand, if the

traditional rule relating to burden of proof of the

prosecution is allowed to be wrapped in pedantic coverage

the offenders in serious offences would be the major

beneficiaries, and the society would be the casualty.

In this case, when prosecution succeeded in

establishing the afore narrated circumstances, the court has

to presume the existence of certain facts. Presumption is a

course recognised by the law for the court to rely on in

conditions such as this. Presumption of fact is an

inference as to the existence of one fact from the existence

of some other facts, unless the truth of such inference is

disproved. Presumption of fact is a rule in law of evidence

that a fact otherwise doubtful may be inferred from certain

other proved facts. When inferring the existence of a fact

from other set of proved facts, the court exercises a

process of reasoning and reach a logical conclusion as the

most probable position. The above principle has gained

legislative recognition in India when Section 114 is

incorporated in the Evidence Act. It empowers the court to

presume the existence of any fact which it thinks likely to

have happened. In that process court shall have regard to

the common course of natural events, human conduct etc. in

relation to the facts of the case.

When it is proved to the satisfaction of the court

that Mahesh was abducted by the accused and they took him

out of that area, the accused alone knew what happened to

him until he was with them. If he was found murdered within

a short time after the abduction the permitted reasoning

process would enable the court to draw the presumption that

the accused have murdered him. Such inference can be

disrupted if accused would tell the court what else happened

to Mahesh at least until he was in their custody.

During arguments we put a question to learned senior

counsel for the respondents based on a hypothetical

illustration. If a boy is kidnapped from the lawful custody

of his guardian in the sight of his people and the

kidnappers disappeared with the prey, what would be the

normal inference if the mangled dead body of the boy is

recovered within a couple of hours from elsewhere. The

query was made whether upon proof of the above facts an

inference could be drawn that the kidnappers would have

killed the boy. Learned senior counsel finally conceded

that in such a case the inference is reasonably certain that

the boy was killed by the kidnappers unless they explain

otherwise.

In this context we may profitably utilise the legal

principle embodied in Section 106 of the Evidence Act which

reads as follows: "When any fact is especially within the

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

upon him."

The section is not intended to relieve the prosecution

of its burden to prove the guilt of the accused beyond

reasonable doubt. But the Section would apply to cases

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where the prosecution has succeeded in proving facts from

which a reasonable inference can be drawn regarding the

existence of certain other facts, unless the accused by

virtue of his special knowledge regarding such facts, failed

to offer any explanation which might drive the court to draw

a different inference.

Vivian Bose, J., had observed that Section 106 of the

Evidence Act is designed to meet certain exceptional cases

in which it would be impossible for the prosecution to

establish certain facts which are particularly within the

knowledge of the accused. In Shambu Nath Mehra vs. The

State of Ajmer (1956 SCR 199) the learned Judge has stated

the legal principle thus: "This lays down the general rule

that in a criminal case the burden of proof is on the

prosecution and section 106 is certainly not intended to

relieve it of that duty. On the contrary, it is designed to

meet certain exceptional cases in which it would be

impossible, or at any rate disproportionately difficult for

the prosecution to establish facts which are 'especially'

within the knowledge of the accused and which he could prove

without difficulty or inconvenience. The word 'especially'

stresses that. It means facts that are pre-eminently or

exceptionally within his knowledge."

In the present case, the facts which prosecution

proved including the proclaimed intention of the accused,

when considered in the light of the proximity of time within

which the victim sustained fatal injuries and the proximity

of the place within which the dead body was found are enough

to draw an inference that victim's death was caused by the

same abductors. If any deviation from the aforesaid course

would have been factually correct only the abductors would

know about it, because such deviation would have been

especially within their knowledge. As they refused to state

such facts the inference would stand undisturbed.

The Division Bench of the High Court instead of

dealing with the circumstances of the case and issues

involved made only some general comments and after

castigating the investigating officers in severe language

reached the final part of its judgment upholding the

conviction under Section 364/34 IPC and reduced the sentence

to the period which the convict had already undergone. The

Division Bench used unkind remarks against the investigating

officer saying "investigation of the case was perfunctory

and suffered from serious lacuna and irregularity". Learned

Judges of the Division Bench did not make any reference to

any particular omission or lacuna in the investigation.

Castigation of investigation unfortunately seems to be a

regular practice when the trial courts acquit accused in

criminal cases. In our perception it is almost impossible

to come across a single case wherein the investigation was

conducted completely flawless or absolutely foolproof. The

function of the criminal courts should not be wasted in

picking out the lapses in investigation and by expressing

unsavoury criticism against investigating officers. If

offenders are acquitted only on account of flaws or defects

in investigation, the cause of criminal justice becomes the

victim. Effort should be made by courts to see that

criminal justice is salvaged despite such defects in

investigation. Courts should bear in mind the time

constraints of the police officers in the present system,

the ill-equipped machinery they have to cope with, and the

traditional apathy of respectable persons to come forward

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for giving evidence in criminal cases which are realities

the police force have to confront with while conducting

investigation in almost every case. Before an investigating

officer is imputed with castigating remarks the courts

should not overlook the fact that usually such an officer is

not heard in respect of such remarks made against them. In

our view the court need make such deprecatory remarks only

when it is absolutely necessary in a particular case, and

that too by keeping in mind the broad realities indicated

above.

In the present case we have not come across any such

serious flaw in the investigation which had affected the

case or which would have impaired the core of the

prosecution case justifying or warranting the pejorative

remarks made by the Division Bench of the High Court against

the investigating officers. In the result, we allow the

appeal filed by the State and dismiss the appeals filed by

the convicted persons. While maintaining the conviction of

the offence under Section 364/34 IPC and restoring the

sentence passed by the trial court on the accused we also

convict the six appellants/accused of the offence under

Section 302 read with Section 34 of IPC and impose a

sentence of imprisonment for life on each of them. The

sentences under all counts will run concurrently. We direct

the Sessions Judge, Calcutta City, to take immediate steps

for putting the convicted persons back in jail for

undergoing the remaining portions of the sentences imposed

by this judgement.