REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1285  OF 2006

Joydeep Neogi @ Bubai   ….Appellant  

Versus

State of West Bengal ....Respondent

(With Crl.A. No. 122 of 2007)

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.  These two appeals are inter linked and are therefore disposed of by a  

common judgment.  Challenge in  these appeals  is  to  the judgment of  the  

Division Bench of the Calcutta High Court upholding the conviction of the  

appellants  except  that  the  order  of  conviction  was  modified  and  the  

appellants  were  convicted  for  offences  punishable  under  Sections

364,302,201 read with Section 34 of the Indian Penal Code, 1860 (in short  

the ‘IPC’).   Seven persons faced trial  before learned Additional  Sessions  

Judge Alipurduar.  Six of them i.e. present appellants were convicted and  

one of them i.e. accused No. 4 was acquitted.  While accused No.2 Joydeep  

Neogi is the appellant in Criminal Appeal No. 1285 of 2006,  Debasish Das-

accused no.1 is the appellant in Criminal Appeal No. 122 of 2007. Accused  

nos. 3 and 6 are proforma respondents in Criminal Appeal No. 122 of 2007.   

2. The prosecution version as unfolded during trial is as follows:

On 6 November, 2001 Ranadip (hereinafter referred to as “deceased”)  

son of Kr. Mallick Gupta was playing on a nearby playground of his house  

and as he did not  return even after  the usual hour,  his mother and other  

relatives started searching for him, but without  any result.  At about 1.30  

P.M., an anonymous telephone call was received by a neighbour wherefrom  

information was gathered about wrongful detention of Ranadip.  When de  

facto complainant returned from his office, he also made a search for his  

son, but, without any result and ultimately the complaint was lodged with  

the local P.S. alleging kidnapping of Ranadip with some dishonest intention.

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It  appears  from  record  that  on  receipt  of  the  FIR  of  de  facto  

complainant, S.I. Laskar of Alipurduar P.S. took up the investigation and on  

6th November, 2001 itself the present appellants were detained for a brief  

period in connection with the case started on the basis of written complaint  

of de facto complainant, but subsequently on the same date the appellants  

were released.

On 16th November, 2001 getting information about locating of dead  

body of Ranadip at a place near Buxer forest on the basis of information  

given by appellant Debasish @ Sona and another accused Raju. On getting  

information about involvement of other persons in the murder of Ranadip  

and removal of his dead body, all the seven persons including the present  

appellants  were  arrested  on  16th  November,  2001  and  thereafter  after  

recording the statement of witnesses, on receipt of post mortem report of  

Ranadip,  recovery  of  certain  incriminating  articles  at  the  instance  of  the  

appellants  and on the  basis  of  confessional  statement  of  accused Choton  

Sarkar, S.l. Laskar being the investigating officer of the case found a strong  

prima  facie  case  against  seven  persons  including  the  appellants  under  

Section 363/364/302/201/34 IPC and on completion of investigation, charge  

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sheet was accordingly submitted against seven persons including the present  

appellants.

3. Accused persons abjured guilt and therefore trial was held.

4. Since  the  case  is  based on circumstantial  evidence,  the  trial  Court  

referred to various circumstances and held that the appellants were guilty  

while directing acquittal of A4.  As noted above,  the judgment of the trial  

court was assailed in appeal before the High Court.  In both appeals the High  

Court, except the modification of the conviction, upheld the finding of guilt  

and dismissed the appeals.

5. Learned counsel for the appellants submitted that the circumstances  

highlighted do not present a complete chain of circumstances and therefore  

the judgments of the trial court and the High Court are not correct.

6. Learned counsel for the respondent-State supported the judgment of  

the trial court as upheld by the High Court.

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7. From the evidence it is clear that on 6.11.2001  Ranadip was last seen  

in the Uttararmath. At that time, these above named four accused were also  

seen  there  and  upon  questioning  by  the  witnesses  they  gave  false  

explanations and misled the witnesses so that they did not go to the western  

side of  the  area.   This  unusual and abnormal  conduct  on the part  of the  

accused, no doubt creates an adverse presumption against them.

8. Now the 2nd phase of this case comes out  from the evidence of P.W.1  

i.e. the defacto complainant. It appears that after returning from his duty and  

being informed regarding the entire matter he  went out to search his son  

Ranadip in the said math along with other local people and his brother. At  

that time, they also found the four accused persons in that place. Part of his  

evidence is corroborated by the evidence of his brother Manik Kr. Mallick  

Gupta i.e. P.W.7 who stated that at about 2.15 P.M. his brother Rabindra  

Mallick Gupta (Defacto complainant) returned home from his office, they  

narrated the incident to him and then he along with his brother and some  

other  people went to search for Ranadip in the ponds near the Uttararmath  

and when they were about to enter the Uttarar Math area,  accused Sona,  

Tuhin, Choton and Bubai came towards them and asked addressing P.W.7 as  

Manik Dan as to where they were going, to which P.W.7 replied that they  

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were going to search for  Ranadip in the pond. The accused named above  

stated that they searched for Ranadip in those ponds but Ranadip was not  

there  and after  hearing  the  same,  they  came back to  their  house.  P.W.4  

corroborated this and stated that after return of Rabindra Mallick Gupta to  

his house from duty at about 2.30 P.M., he along with Rabindra Mallick  

Gupta and many other people went to search for Ranadip in the ponds of  

Uttarar Math and near the same math they saw accused Sona, Bubai, Tuhin  

and  Choton  and  they  stated  to  Rabindra  Mallick  Gupta  that  they  had  

searched for Ranadip in the side of pond and jungle and asked him to search  

for  Ranadip on other sides. The above named four accused persons were  

found present in the Uttarar Math on 6.11.2001 on and from 11.15 A.M. till  

2.30 P.M. On 6.11.2001 failing to find out his son Rabindra Mallick Gupta,  

the defacto complainant at about 3.45 P.M. along with others went to the  

Alipurduar  P.S.  and  lodged  a  written  complain  there.  The  complaint  is  

marked as Ext.1.  It  comes out from the evidence of PW 1 (father of the  

deceased) that after  lodging of the same in the P.S. on 6.11.2001, police  

came to  his  house and asked him and his  neighbours  to  show the place  

where  Ranadip  was  last  seen  playing.   Accordingly,  PW1  accompanied  

police to the ground on the northern side of his house where Ranadip was  

last seen playing.  At that time also they found that these four accused Sona,  

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Tuhin,  Bubai  and Choton  were  present  there  and when police  personnel  

were going to make a search on the western side of the same ground, these  

four accused stated to them that they made search on the said western side  

jungle and there was no necessity to proceed towards that side. Accordingly,  

police did not proceed towards the western side. Thereafter making search  

police went away. This part of the evidence of P.W. 1 is corroborated by  

Ashit  Bose  (P.W.4)  and   Manik  Kr.  Mallick  Gupta  (P.W.7).  From  the  

evidence of P.W.4 it appears at about 5 P.M. in his presence police reached  

the house of Rabindra Mallick Gupta. (P.W.l) and the members of the house  

narrated the incident to police and he also at that time stated to the police  

that on the same date at about 11/11.15 A.M., while he was coming through  

Uttarar  Math,  he  found  accused  Sona,  Bubai,  Tuhin  and  Choton  were  

loitering here and there in the same math and deceased Ranadip, Bittu and  

Sayan were also found playing there.  According to P.W.4 he along with  

Daroga Babu and others went to the same math when it was dark. But at the  

same time they found these four above named accused to be loitering in the  

same Math and they again stated also to Daroga Babu that they had searched  

for Ranadip in jungle and other places but Ranadip was not there.

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9. P.W.7 also corroborated this by stating that towards the evening on  

the same day at about 5.30 P.M. police came to their house and they narrated  

the incident to them and also the incident of Uttarar Math and then they  

along with the police personnel went to Uttarar Math where they again saw  

accused Choton, Sona, Bubai and Tuhin present there.

10. From the evidence of P.W.5 i.e. one Swapan Roy it appears in the  

mean time on the self same date i.e. on 6.11.2001 at about 1/1.30 P.M. there  

came a telephone call in male voice to his house and he was asked to call  

some one from the house of Mallick Gupta. This call was attended by Sipra  

Mallick Gupta. This Sipra Mallick Gupta is examined as P.W.3 in this case  

and from her evidence it appears, while she attended the telephone call one  

male  person  in  low  voice  saying  “Chela  Amader  Kachaa  Achaa,  Khoja  

Khuji Kariban naa, policea Khabar Deban Naa”, (Ranadip is with us. Do not  

search  for  him.  Do not  inform police)  and when she enquired  who was  

speaking  and  from  where,  at  that  time  the  voice  on  the  telephone  was  

stopped.  According to PW3, she narrated the incident before her husband  

Manik Mallick Gupta, (PW 7), Ashit Bose (PW4), Bhupen Debnath (PW11)  

and many  other  persons.   All  these  PWs.  have  corroborated  this  part  of  

evidence of PW 3.

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11. From the evidence of PW1, PW 2, PW 3, PW 4, PW7 i.e. Rabindra  

Kumar Mallick Gupta, Nupoor Mallick Gupta, Sipra Mallick Gupta, Ashit  

Bose  and Manik  Mallick  Gupta,  it  is  clear  that  the  four  accused  named  

above were found in the Uttarar Math since morning of 11 A.M. to 5 P.M.  

when it was dark. When a case rests purely on circumstantial evidence, the  

circumstances from which the inference of guilt is sought to be proved must  

be cogent and firmly established, and that should unerringly point towards  

the guilt of the accused, and that must make a chain complete to form a view  

that the crime was committed by the accused alone and none else.

12. From the trend of evidence discussed above it can be presumed like  

Ranadip (deceased) all the four accused i.e. Sona, Tuhin, Bubai and Choton  

are the para boys. The accused told the  P.Ws  not to search in a specific side  

of the Uttarar Math and asked them to search Ranadip in other sides. The  

P.Ws i.e. even the parents and other relatives of the deceased did not suspect  

anything. They relied upon the accused on good faith. A criminal trial is not  

an enquiry into the conduct of an accused ‘for any purpose other than to  

determine  his  guilt.  It  is  not  disputed  piece  of  conduct  which  is  not  

connected with the guilt of the accused is not relevant. But at the same time,  

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however, unnatural, abnormal or unusual behaviour of the accused after the  

offence  may  be  relevant  circumstance  against  him.  Such  conduct  is  

inconsistent  with  his  innocence.  So  the  conduct  which  destroys  the  

presumption of innocence can be considered as relevant and material.

13. So, the presence of the accused for a whole day in a specific place and  

misleading the P.Ws to search in other place and not allowing them to search  

in a specific place certainly creates a cast iron cloud over the innocence of  

the accused persons.

14. The circumstances noticed by the trial Court and the High Court are as  

follows:

(1) Debashish Das @ Sona (A-1), Joydeep Neyogi @ Bubai  

(A-2), Choton Sarkar (A-4) and Babban Talukdar @ Tuhin (A-

6) were present in the Uttar-Math at about 11.15 A.M. when the  

deceased along with Saiyan and Bittu were playing there. This  

has been stated by Ashit  Bose (PW-4),  Sudipta Das (PW-9),  

Krishnan Sen Gupta (PW-10) and Bhupin Dev Nath (PW-11).

(2)   At about 11.30  A.M.  Nupur Gupta (PW-2) and Krishna  

Dey  (PW-6)  went  in  search  of  the  deceased  to  Uttar  Math.  

When they reached the municipal  road, they  saw Sona (A-1)  

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coming on a cycle from  the northern side of the ground. He  

asked them as to what had happened. He was informed that the  

deceased was not being found.  Sona stated that the deceased,  

Bittu and Saiyan were playing on the ground.  However, when  

Saiyan's father took away Saiyan, Bittu and the deceased also  

went away. At that time, Bubai (A-2), Choton (A-3) and Tuhir  

(A-6) were standing under a tree on the southern side of the  

ground;

(3) When Ravindra Gupta (PW-1) and other persons of the  

locality  went in search of the deceased, the accused diverted  

their  search  from the  western  side  of  the  ground.  Similarly,  

when the police went in search of the deceased, these accused  

diverted the search from the western side of the field. This has  

been stated by Ravindra Gupta PW- 1, Ashit Bose PW-4 and  

Manik Gupta-PW7;

(4) On the same day at about 6.30 p.m. Sona (A-1) was seen  

driving a motorcycle towards Alipur Duar junction. Raju (A-5)  

was riding on the pillion and was carrying a bundle (bochka).  

This has been stated by Debabrata Dhar (P W-12).

(5) On the same day at about 6.30 P.M. Sona (A-1) made an  

extra judicial confession to Sudipta Das (PW-9) outside the tea  

stall of one Malay. At that time Bubai (A-2) and Choton (A-3)  

were  inside  the  tea  stall  taking  tea.  This  has  been stated  by  

Sudipta Das (PW-9).

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(6) On 16.11.2001 Sona (A-1) was arrested at 1:15P.M. Bubai  

(A-2) at 1:45 P.M., Chotan (A-3) at 1:25 P.M. and Tuhin (A-6)  

at  1:05  P.M.  They  were  confined  at  P.S.  Alipur  Duar.  

Proshanta Sen Gupta (PW-15) and Subrata Sen Gupta (PW-16)  

met them in the lock up. The four accused made extra judicial  

confessions before them.

(7) On 16.11.2001 Sona (A-1) and Tony (A-7) made disclosure  

statements  under Section 27 of Evidence Act and discovered  

the dead body of the deceased. This has been stated by B.K.  

Laskar  I.0  (PW-25).  In  consequence  to  the  information  

furnished by these two accused, the body of the deceased was  

discovered near the tonal training office. This has been stated  

by Proshanta Sen Gupta (PW-15), Subrata Sen Gupta (PW16),  

Provesh  Biswas  (PW-18),  Atual  Das  (PW-19),  Pranav  Roy  

(PW-23), B.K.Laskar I.0 (PW-25) and Sanjeev Basu (PW-26).  

A seizure memo exhibit P-9 and the inquest exhibit P-12 were  

prepared.

(8) On 19.11.2007 B.K. Laskar (PW-25) took Sona (A-1),  

Bubai (A-2) and Raju (A-5) to the western side of the Uttar-

Math, from there a pair of hawai chappals and a length of nylon  

rope  were  seized  vide  exhibit-2/2.  This  has  been  stated  by  

Ravindra Gupta (PW-1), Ashid Bose (PW-4) and B.K. Laskar  

(PW-25). The hawai slippers were identified by Ravindra Gupta  

(PW-1)  and  Nupur  Gupta  (PW-2)  as  belongings  to  the  

deceased.  

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15. The  circumstances  clearly  establish  the  accusations,  so  far  as  the  

appellant Debasis Das (A-1) is concerned. There is no scope for interference  

in  the  appeal  filed  by  him.  (i.e.  Criminal  Appeal  No.122  of  2007)  is  

concerned.   But  the  circumstances  are  not  sufficient  to  fasten  guilt  on  

Joydeep (A-2) appellant in Criminal Appeal No.1285 of 2006 is concerned.  

His conviction is set aside and he is acquitted of the charges.  His appeal is  

allowed.  He  be  released  from  custody  forthwith  unless  required  in  

connection with any other case.   

              …….…..……………….……….J. (Dr. ARIJIT PASAYAT)

…….…………….……………….J. (ASOK KUMAR GANGULY)

New Delhi, May 08, 2009

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