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CASE NO.: Appeal (crl.)  231-234 of 2002

PETITIONER: Mousam Singha Roy & Ors.                 

RESPONDENT: Vs. State of West Bengal                             

DATE OF JUDGMENT: 21/08/2003

BENCH: N Santosh Hegde & B.P. Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       The appellants in these appeals and one Deepak Rajak  were tried in S.T. Case No.V(4) of 1999 by the Additional  District and Sessions Judge for offences punishable under  Section 120-B, 302 read with Section 34 IPC and Section 201  read with Section 34 IPC. Learned Sessions Judge as per his  judgment dated 29.3.2000 while acquitting Deepak Rajak  convicted the other accused under Section 302 read with  Section 34 IPC, and sentenced them to undergo imprisonment  for life with a fine of Rs.2,000; in default to undergo further RI  for one year. He did not award separate sentences for offences  punishable under Section 120-B and 201 read with 34 though  he found them guilty of the said offences also. The appellants  herein preferred appeals before the High Court at Calcutta  while State preferred a separate appeal against the acquittal of  Deepak Rajak. A Division Bench of the High Court as per its  judgment dated 24.5.2001 dismissed the appeal of the  appellants while it allowed the State appeal, and convicted  Deepak Rajak also, for offences for which these appellants were  sentenced.

       Against the said judgment of the High Court the  appellants have preferred the abovenoted criminal appeals.  Deepak Rajak who was convicted by the judgment of the High  Court did prefer an SLP before this Court but since he did not  surrender, as required under the Supreme Court Rules, his  appeals came to be dismissed for default. Therefore it is only  accused Nos.1, 2, 4 and 5 who are before us in these appeals.

       Brief facts necessary for disposal of these appeals are as  follow :

       One of the deceased Pritam Chakraborty who was aged  about 16-17 years was a student of Vivekananda Institution,  Howrah. He was staying with his widowed mother Purnima  Chakraborty (PW-6) at Mouza 5/2/1, Katapukur 3rd bylane,  Kadamtala, Howrah. The second deceased Rudra Parui who  was of the same age as Pritam, was his classmate and a good  friend. He was residing with his father Uttam Kumar Parui  (PW-9) at Mouza 62, Tantipara Lane, P.S. Shibpur, Distt.  Howrah. Apart from going to school together, they also used to  go for tutorial classes together in the evening. It is the  prosecution case that deceased Pritam was having a love affair

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with one Reshma Gupta. It is stated that A-1 Mousam Singha  Roy was also in love with said Reshma. Because of this twist of  love triangle, the prosecution alleges that said accused Mousam  was jealous or angry with deceased Pritam. It is because of this  on 1.12.1998 appellant Mousam allegedly made a telephone  call to Pritam at the residence of latter’s maternal uncle   Sibananda Bhattacharjee (PW-1) with whom Pritam and his  mother PW-6 were residing. The telephone call in question was  received by PW-1 at about 8 a.m. and the caller identified  himself as Mousam, a friend of Pritam who desired to speak to  Pritam. Thereupon PW-1 called Pritam and handed over the  phone to him. During the conversation on the telephone, PW-1  found Pritam perturbed and shaky therefore after the  conversation PW-1 asked Pritam what the matter was. Though  Pritam did not say anything in the beginning, on being rebuked  by PW-1, he replied that Mousam had asked him to come to  Howrah Bridge later in the night for which PW-1 told him not  to go there as desired by Mousam. Pritam then replied that  since his friend Rudra (the other deceased) was going to  accompany him there need be no apprehension. It is the further  case of prosecution that in the evening Pritam did not come  back to his house from the tutorial class even by about 8.45  p.m. which was the normal time for him to return home after  the tutorial class so his mother PW-6 told PW-1 about the non- arrival of Pritam. PW-1 comforted his sister by saying that  Pritam might have gone for xeroxing some of his papers. PW-1  waited till about 9.30 p.m., then went in search of Pritam to the  tutorial school and on the way he met the father of Rudra,  Uttam Kumar Parui (PW-9), and some others. They told PW-1  that even Rudra had not returned from coaching class and they  were searching for him. So all of them together went to the  coaching class where they were told by the Principal of the  Coaching class, Mrinal Mukherjee (PW-14) that the boys had  already left the class. Thereafter at about 11 p.m. PW-1 with  PW-9 and other local people went to the Bantra Police Station  and gave a verbal information about the missing of the boys to  the Police Officer there. It is further stated that PWs.1, 9 and  others went to the Howrah Station and searched for them on  Howrah Bridge and even told the personnel of Government  Railway Police Station (G.R.P.S.) about the missing boys and  also gave them the description of the boys. PW-1, PW-9 and  others continued the search for the boys even on 2.12.1998  morning and  being unsuccessful in their efforts, went to Bantra  Police Station and lodged a missing Diary. Thereafter, they  went to their house. It is the case of the prosecution that on  2.12.1998 at about 10-11 a.m. Debasish Sarkar (PW-2) and  Arun Polley (PW-3) came to the house of PW-9 and informed  him that they had seen Pritam and Rudra in the company of  accused near the Howrah Bridge on the night of 1.12.1998.  After listening to PWs.2 and 3, PW-9 with his relatives went to  PW-1’s house and told him about the information he got from  PWs.2 and 3. According to PW-1, after getting the information  about PWs.2 and 3, he along with PW-9 and others searched for  the boys and unable to trace them he went to Bantra P.S. and  again reminded them of the missing boys but he was told by the  Police since missing diary is recorded only in the morning, he  will have to wait for some more time.           Since even till 3.12.1998 morning no information was  received about the missing boys PW-1 went again to Bantra  P.S. and lodged a written complaint which was signed by him  and marked as Ex.1. In the said complaint names of accused  persons were mentioned. It is the prosecution case that on  4.12.1998 the dead body of Pritam was traced near Hooghly  Dock which was identified by PW-1 and on 7.12.1998 the body  of Rudra was found which was identified by PW-9. In the

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course of postmortem the doctor found certain ante-mortem  injuries on the body of Pritam, he noted that injuries suffered by  said deceased were due to manual strangulation and  smothering, He also recorded that Pritam’s death was due to  pre-mortem strangulation. On the body of Rudra the doctor  found certain bruises and contusions which were ante-mortem  in nature. The doctor opined that his death was due to the effect  of asphyxia as a result of drowning which was ante-mortem and  homicidal in nature.           During the course of investigation the accused persons  were arrested and the Police recovered a letter allegedly written  by A-1 from the house of appellant Bikash Jaiswal @ Vikky  (A-5). Police also recovered an exercise book (Khata) from  which pages were torn for the  purpose of writing the letter  which was found in the house of Mousam (A-1). During the  course of investigation the Police came to know that on  1.12.1998 when PWs.2 and 3 were standing near the power  house on the road leading to Howrah Bridge these witnesses  had noticed the appellants and the deceased going towards the  Howrah Bridge. It is during the course of this investigation on  5.12.1998, one Rajesh Tiwari PW-13 appeared in the Police  Station and told the Investigating Officer that on 1.12.1998 at  about 8.50 p.m. when he was returning from Bara Bazar,  Calcutta to his house after making certain purchases, he had  seen the accused persons engaged in a quarrel with 2 boys on  the footpath of Howrah Bridge. On further investigation it was  found on 1.12.1998 one Dibyendu Shee PW-15 while coming  back from a game of cricket had found Mousam (A-1) and a tall  boy walking ahead of him and he could overhear a conversation  in which Mousam allegedly told the tall boy "together it could  happen on that day". PW-15 further says that out of curiosity he  asked the tall boy what would happen on that day to which the  tall boy replied that the matter related to his friends Pritam and  Mousam. At that point of time this tall boy also made a gesture  of moving his right hand horizontally indicating the nature of  act. On further investigation the Police came to know that  PWs.23 and 24 who were Duty Constables on the Howrah  Bridge had come to know from some passersby that 2 persons;  either a boy and a girl or 2 boys had jumped into the Ganges  from the bridge. This was at about 9 or 9.05 p.m. When these  Constables proceeded to the place of incident they noticed  about 200-300 persons there therefore PW-23 sent PW-25 to  the Police Station to inform the duty Officer and he started  clearing the crowd. This witness also witnessed a cycle near  Post No.12 of Howrah Bridge and therefore he took possession  of the same. This witness also says when he was there, 2  Constables from Post No.12 visited the place of incident. It is  based on these facts the appellants were charged and found  guilty of the offences, as stated above.    

       Mr. P.K. Ghosh, learned senior counsel appearing for the  appellants, submitted that in the absence of any direct evidence  the prosecution had to rely on circumstantial evidence to  establish its case but in this process it has failed to establish  beyond reasonable doubt all the necessary links found in the  chain of circumstances. Therefore, the benefit of that failure  ought to have gone to the appellants. He submitted that the  evidences of so called witnesses who have spoken about seeing  the deceased in the company of accused persons are so artificial  that it is impossible for any prudent person to safely base a  conviction on the said evidence. He further submitted that even  the  presence of these witnesses at the place mentioned by them  at the relevant time apart from being a chance circumstance, it  was also highly improbable. He submitted that the non- mentioning of the names of PWs.2 and 3 in the FIR even

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though by then PW-1 had  come to know of the seeing of the  accused and the deceased by PWs.2 and 3 on 1.12.1998 throws  substantial doubt as to their presence at the sweetmeat stall.  Learned counsel also argued the non-mentioning of the receipt  of telephone call by PW-1 on the night of 1.12.1998 to the  Police or anybody else also creates a doubt as to the receipt of  the said call. Learned counsel very seriously challenged the  seizure of the letter as well as the exercise book, especially on  the ground that the witnesses to the recovery Panchnama had  not supported the recoveries. He also submitted that the  judgments of the courts below are based purely on suspicion  and are influenced by the tragic murders of 2 youngsters and  are not based on legal evidence.

       Mr. Tapash Ray, learned senior counsel appearing for the  State submitted both the courts below have considered the  attack by the defence very minutely and have given good  reasons for rejecting the said attack. He submitted though there  are no eye witnesses to the actual assault on the deceased or  throwing their bodies into the river from the bridge, the chain of  circumstances relied upon by the prosecution starting from the  morning of 1.12.1998 up to the arrest and recoveries made by  the investigating agency clearly shows that it is the accused and  the accused alone who are responsible for this dastardly crime.  He submitted the factum of motive for A-1 to do away with  Pritam is evident from the said accused’s conduct as spoken to  by PW-6, mother of deceased Pritam which is supported by her  neighbour PW-7. He also pointed out that the contents of the  letter recovered from the house of Vikky (A-5) showed the  diabolocal plan of Mousam (A-1) to eliminate Pritam with a  view to prevent him from being a thorn in his lovelife which  fact is further supported by the evidence of PW-15 who  overheard the conversation of Mousam with his tall friend who  was subsequently identified as Vikky (A-5). He also argued that  none of the witnesses who have supported the prosecution had  any motive whatsoever to falsely implicate these accused  persons. He also pointed out the two courts below after  considering the material on record having come to the  concurrent finding of guilt of the appellants there should be no  reason why this Court should interfere with such a finding of  the courts below.

       In the couse of his arguments, learned counsel for the  appellants has also submitted that the courts below were more  influenced by the poignant nature of the prosecution case than  the legal nature of the evidence led by the prosecution. It is in  this context, he relied on a judgment of this Court in the case of  Hanumant Govind Nargundkar & Anr. v. State of M.P. [AIR  1952 SC 343] wherein this Court while dealing with cases of  circumstantial evidence held :  

"In dealing with circumstantial evidence the  rules specially applicable to such evidence  must be borne in mind. In such cases there is  always the danger that conjecture or  suspicion may take the place of legal proof.  In cases where the evidence is of a  circumstantial nature, the circumstances  from which the conclusion of guilt is to be  drawn should in the first instance be fully  established, and all the facts so established  should be consistent only with the  hypothesis of the guilt of the accused.  Again, the circumstances should be of a  conclusive nature and tendency and they

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should be such as to exclude every  hypothesis but the one proposed to be  proved. In other words, there must be a  chain of evidence so far complete as not to  leave any reasonable ground for a  conclusion consistent with the innocence of  the accused and it must be such as to show  that within all human probability the act  must have been done by the accused."

         Apropos what was observed by this Court in the case of  Hanumant Govind (supra), it will be useful to note the warning  addressed by Baron Alderson to the jury in Reg. V. Hodge  [1838 2 Lewin 227] which is also quoted with approval by this  Court in the case of Hanumant Govind (supra) :

"The mind was apt to take a pleasure in  adapting circumstances to one another, and  even in straining them a little, if need be, to  force them to form parts of one connected  whole; and the more ingenious the mind of  the individual, the more likely was it,  considering such matters, to overreach and  mislead itself, to supply some little link that  is wanting, to take for granted some fact  consistent with its previous theories and  necessary to render them complete."

                Bearing in mind the above caution delivered by this  Court in appreciating circumstantial evidence as laid down in  Hanumant’s case (supra), and the cautious words of Baron  Alderson in regard to the possibility of our mind getting swayed  by the tragic facts of the case and our assessment of evidence  being influenced by our preconceived notions, we will now  analyse the prosecution case.  The prosecution has relied on the following  circumstances to establish its case against the appellants :

(i)     Appellant Mousam had made a telephone call on  1.12.1998 to deceased Pritam at the house of PW-1 and  had asked the deceased to meet him at the Howrah  Bridge later in the night at about 9 p.m. as spoken by  PW-1;

(ii)    Appellant Mousam was angry with Pritam because he  was also friendly with Reshma Gupta which was  considered as a hurdle by the said accused in the way of  his love affair with said Reshma,  as spoken to by PWs.1,  6 and 7. (iii)   PW-15 had overheard on 1.12.1998 the plan of A-1 and  A-5 to eliminate Pritam; (iv)    Deceased and the accused persons were seen together at  the power-house in the late evening of 1.12.1998 by  PWs.2 and 3; (v)     Accused were seen having an altercation with 2 unknown  boys at about 9 p.m. on the Howrah Bridge on 1.12.1998  by PW-13; (vi)    PWs-22 and 25 Constables came to know that either 2  boys or a boy and a girl had jumped from the Howrah  Bridge into the river at about 9 p.m. on 1.12.1998 and a  cycle belonging to deceased Rudra was recovered near  about that place;

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(vii)   The deceased were missing since 1.12.1998 and their  bodies were recovered on 4th and 7th December, 1998 and  the medical reports showed that they had met with  homicidal death;  (viii)   A letter allegedly written by A-1 Mousam was recovered  from the house of A-5 contents of which showed the  intention of A-1 to eliminate deceased Pritam;  (ix)    The above letter was written in pages torn from an  exercise book recovered from the house of A-1.

         To prove that deceased Pritam and Mousam A-1 were in  love with the same girl Reshma because of which A-1  entertained an ill-will against Pritam, the prosecution relies on  the evidence of PWs.1, 6 and 7. It also strongly relies on letter  allegedly written by A-1 to A-5. So far as PW-1’s evidence is  concerned he merely says that he had come to know that there  was a triangular affair between Pritam, Reshma and Mousam.  The source of this information is not mentioned by him,  therefore we do not place much importance on this evidence of  PW-1 in regard to the relationship between Pritam, Reshma and  Mousam. But PW-6 in her evidence states that about a week  prior to 1.12.1998, she had seen a boy cycling in front of her  house. When asked Pritam had told her that the boy’s name was  Mousam and he did not tolerate Pritam’s friendship with  Reshma for which PW-6 had advised her son not to mix with  Reshma. Her evidence finds corroboration from the evidence of  PW-7  who states that at the instance of PW-6 he did approach  the parents of Reshma in regard to her involvement with  accused Mousam. This part of their evidence would indicate  that there was an ongoing affair between Reshma on one side   and Pritam and Mousam on the other, due to which the  relationship between Pritam and Mousam, at least from the side  of Mousam was not cordial. To this extent, the prosecution case  can be accepted. We will now proceed to examine the other evidence led  by the prosecution keeping in mind that the prosecution has  established a not so cordial relationship between Pritam and  Mousam but the question then is :  would this in any manner  indicate that Mousam entertained an intention to eliminate  Pritam ?  In this regard, the prosecution as a link in its chain of  circumstances has tried to establish this intention of Mousam by  referring to a telephone call allegedly made by him to PW-1’s  house on 1.12.1998 at about 8 a.m. PW-1 states because of this  telephone call he came to know that Pritam was asked by  Mousam to come to Howrah Bridge at about 9 p.m. and Pritam  had become nervous after receiving this call. Seeing this PW-1  advised Pritam not to go to Howrah Bridge but Pritam told him  that since he was going in the company of Rudra (the other  deceased) there need be no apprehension. This part of the  evidence if proved would establish that A-1 had called Pritam  to meet him at the Howrah Bridge which circumstance will be a  relevant circumstance in the chain of prosecution case.  Therefore, we will now examine whether this part of PW-1’s  evidence can be accepted as has been done by the two courts  below. In the night of 1.12.1998, PW-1 came to know at about  8.45 p.m. from his sister PW-6 that Pritam had not come home  from the tutorial class as was the usual practice. At this point of  time this witness instead of telling his sister that Pritam had  gone to meet A-1 at Howrah Bridge, told her that he may be  late because Pritam might have gone to get some papers  xeroxed. No explanation is given by this witness while in  witness box why he gave such incorrect excuse to his sister. It  is then seen that this witness after waiting for some more time,  went in search of Pritam. On the way he met PW-9 father of  Rudra with some local people. PW-9 told PW-1 even his son

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Rudra who accompanied Pritam had not come back therefore  both of them went to Bantra Police Station and orally told the  Police about the missing boys but this information was not  reduced to writing by the Police. Here it is to be noticed that  PW-1 did not tell the Police about the telephone call received  by his nephew earlier in the day nor did he tell either PW-9 or  the Police that Pritam and Rudra could be in the company of A- 1 on the Howrah Bridge.          If we can accept the evidence of PW-1 that he in fact  received a telephone call on the morning of 1.12.1998 from  Mousam, A-1, wanting to talk to deceased Pritam and after the  telephonic conversation Pritam had told PW-1 that he was  going to meet A-1 and his friends  on the Howrah Bridge at 9  p.m. in the company of Rudra then this would be a material  piece of evidence connecting the accused to the crime. Though  the courts below have accepted this part of the evidence of PW- 1 we find it difficult to accept it, primarily because PW-1 did  not tell anybody about the receipt of this telephone call until he  lodged the complaint on 3.12.1998. In this background, if we  peruse the evidence of this witness then it is seen on the night  of 1.12.1998 when he went out in search of Pritam he met PW- 9 father of deceased Rudra who told him that his son was also  missing and together they go to the tutorial school then to  Howrah Station, Howrah Bridge, they meet the personnel of the  GRPS, they thereafter lodged an oral complaint with the Police  about the missing boys but at no point of time PW-1 mentioned  the receipt of the telephone call to anybody. This looks strange  to us because if actually PW-1 had the knowledge that the  deceased were going to meet the accused on the Howrah Bridge  then the first thing any reasonable man would have done is to  share this information with PW-9 or the Police and search for  the known accused instead of going on a wild-goose chase.  Absence to do so without any proper explanation makes the  statement of PW-1 as to the receipt of the telephone call  suspect. Then on 2.12.1998 when again PW-1 and PW-9 in the  company of locals went to search the deceased at various places  and went to Bantra Police Station to lodge a Police Diary of the  missing persons even then PW-1 does not mention about the  receipt of telephone call. For the first time we notice PW-1  comes out with this case of telephone call on 3.12.1998 when  he lodged a complaint Ex. P-1 with the Police as to the missing  of the deceased. As noted above, there is absolutely no  explanation why he did not inform anyone between 1.12.1998  and 3.12.1998 about the receipt of telephone call. This omission  coupled with the fact that  the investigating agency has not  made any efforts to verify whether any such telephone call was  received by PW-1 on his telephone on 1.12.1998 makes us  think that this part of PW-1’s evidence cannot be relied upon to  link the other evidence led by the prosecution to prove its case  against the accused persons. Apart from the receipt of telephone  call in the evidence of PW-1, nothing material connecting the  accused to the murder is found. He of course says that the  deceased were missing from the night of 1.12.1998 and he  joined PW-9 and others in search of them and PW-9 told him  that PWs.2 and 3 had seen the deceased in the company of the  accused but this fact he did not mention in his complaint Ex. P- 1. Even then the courts below have chosen to accept the  evidence of PW-1 in regard to the receipt of telephone call on  its face value without seeking even minimal corroboration.  Taking into consideration the fact that PW-1 had repeated  opportunities of disclosing the receipt of telephone call to  others, as stated above, his failure to do so makes this part of  his evidence unacceptable to us in spite of the fact that the same  has been accepted by two courts below because findings of the  courts below in this regard are contrary to all probabilities and

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reasonableness.  

         Prosecution has relied on the evidence of PW-9 father of  Rudra to show that his son was missing since the night of  1.12.1998 and he was told by PWs.2 and 3 that they had seen  his son in the company of Pritam and other accused persons on  the Howrah Bridge on 1.12.1998 at about 9 p.m. and that he in  the company of PW-1 and other locals had searched these 2  missing boys but did not succeed in that quest. He also supports  PW-1 to the extent that they went to Bantra Police Station to  lodge a missing persons report for the first time orally and for  the second time in writing and that the dead body of his son was  recovered on 7.12.1998 and he also took possession of the cycle  belonging to his son from the Port Police. While discussing the  evidence of PW-1 we have noticed that the fact that PWs.2 and  3 had told PW-9 about the missing persons is not mentioned in  the FIR and PW-1 had not told him about the receipt of  telephone call on 1.12.1998 in the morning.           This witness states that on 2.12.1998 when he came to  know from PWs.2 and 3 about the missing boys being in the  company of the accused persons, he went to the house of PW-1  and told him what was told to him by PWs.2 and 3. He also  states that he gave the addresses of A-2 to A-5 to PW-1 and  further states that together they searched for these accused  persons but could not trace them. PW-1 does not corroborate  this part of the statement as to the mentioning of the names of  the accused persons as also searching for them on 2.12.1998 in  the company of PW-1. We further notice this part of PW-9’s   evidence is not even supported by PW-43, the investigating  officer, who in his evidence states that PW-9 did not tell him at  the time of recording his statement that he went to the house of  the accused persons and they were not traceable. Thus, there is  an attempt on the part of PW-9 to improve his evidence given  in the court. Be that as it may, we do not think the evidence of  PW-9 takes the prosecution case any further than proving the  fact that his son along with Pritam went missing on 1.12.1998  and their search for them proved futile on 1st and 2nd December,  1998 and that PWs.2 and 3 told him that they had seen the  missing boys in the company of the accused on 1.12.1998.  Suffice it to state here that this evidence of PW-9 could, at the  most, corroborate the prosecution case in regard to the links in  the circumstantial chain provided such links have been  independently established.

Prosecution to establish its case connected with motive  has relied on the evidence of PW-15 Dibyendu Shee. His  evidence in our opinion makes a very interesting reading  though devoid of any merit. He claims to be a cricketer playing  in Tikiapara Railway quarters’ ground. He is also a student of  Vivekananda Institution where the deceased were studying. On  1.12.1998 afternoon after the game he was going out of the  cricket ground on his cycle when he found accused Mousam  whom he knew, going ahead of him in the company of a tall  boy whose identity obviously this witness did not know at that  time. This witness then says that he overheard a conversation  between accused Mousam and the tall boy to the effect   "together it could happen on that day". So this witness got  curious and asked the tall boy what will happen on that day, to  which the tall boy is supposed to have answered : "Your friend  Pritam and Mousam are related to this matter". On further  questioning by this witness the tall boy replied by showing his  right hand horizontally (across). This tall boy was identified by  this witness in jail for the first time. This piece of evidence has  been construed by the two courts below as a piece of evidence  for establishing the intention of Mousam to eliminate the

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deceased Pritam in the company of A-5. A reading of this  evidence to our mind shows this evidence is ex facie artificial.  This witness though he knew A-1 did not know Vikky till he  identified him in jail on 6.12.1998 for the first time. He was  examined by the Police for the first time on 6.12.1998. There is  nothing on record to show how the I.O. came to know that this  witness had seen accused Mousam and Vikky together on  1.12.1998. In such circumstances bearing in mind the fact that  if really the 2 accused persons were discussing a plan to  eliminate Pritam it is impossible to believe that the accused  would share this information with a stranger in the manner as  stated by this witness so as to provide some evidence against  their involvement in the crime. But the courts below proceeded  to accept the evidence of this witness and rejected the argument  of the defence that this evidence is incongruous, unusual and  contrary to the course of human conduct solely on the ground  that he had identified A-5 in a test identification parade,  relevance of which for the purpose of rejecting the defence  challenge to PW-15’s evidence we fail to understand. At any  rate we agree with the argument addressed on behalf of the  appellants that the evidence of PW-15 is highly artificial and  opposed to normal human conduct and unworthy of acceptance  by any standard.

       We will now consider the prosecution case in regard to  the accused and the deceased being seen together on the night  of 1.12.1998. For this purpose the prosecution has firstly relied  upon the evidence of PWs.2 and 3.  The evidence of these two  witnesses will be considered by us together. They stated that  both of them resided in Thakur Ramkrishna Lane, Howrah.  PWs-2 and 3 say that they knew the accused persons and the  deceased. They knew deceased Rudra because he was a local  boy of their locality. PW-1 states that he knew Pritam because  he used to visit Rudra, he states that he knew the accused  persons because they use to play cricket in Dumurjola ground   which place this witness used to visit to watch cricket matches,  though they were not of the same locality as that of this witness.  Both these witnesses PWs.2 and 3 state that on 1.12.1998 at  about 8.30 p.m. they were purchasing sweetmeat at a stall  opposite the power-house at Kadamtala, at that time PW-2 saw  accused persons going towards Howrah Bridge with Rudra and  he asked Rudra where he was going in the night, to which  Rudra supposedly replied that he was going with his friend  towards Howrah. PW-2 also says that he identified the accused  persons because he had seen them play cricket. In his evidence  he further states on 2.12.1998 he informed PW-9 and some  other people of the locality that on 1.12.1998 at 8.30 p.m. he  had seen the deceased, the accused and some others proceeding  towards Howrah. This witness was cross examined at length  suggesting among other things that they could not have been  present at that place at that time. Defence also challenged the  identification of the accused by this witness. He was also  pointedly cross examined in regard to the location of the  sweetmeat stall with reference to the road leading from the  tutorial coaching class to Howrah Bridge. It was suggested by  the defence that if one has to go from the tutorial class to  Howrah Bridge the road via the power-house is a longer route  and nobody would normally take such a route to reach the  Howrah Bridge. Of course this witness has denied the same. In  regard to the possibility of this witness identifying the accused  at the cricket ground, the defence has put searching questions  and this witness has admitted that he was not able to say the  names of other boys including those from his locality who  played cricket in that stadium. He has not given any specific  reason for having given the names of only the accused out of

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the large number of boys playing in the stadium. But what is  important to notice in regard to the evidence of PW-2 is that  though he did mention to PW-9 on 2.12.1998 that he had seen  the accused and the deceased together on 1.12.1998, and the  said information  was conveyed to PW-1 in their presence, the  same was not recorded in the FIR which is a glaring omission  creating doubt as to this witness having told PW-9 about they  having seen and identified the accused and deceased at the time  and date mentioned by them.

       Similar is the evidence of PW-3. He in his examination in  chief had stated that while he was paying the price of the  sweetmeat, he saw PW-2 talking to Rudra, Vikky, Tikky,  Rabindra, Deepak and Mousam. He also stated that Rudra had  his cycle with him and thereafter these boys proceeded towards  Howrah maidan and when PW-2 questioned Rudra, he told him  that he was going with his friends to that side. He also states on  2.12.1998 he informed PW-9 what he had seen on 1.12.1998.  This witness also has been cross examined by the defence as to  their chance presence at the place of incident and their  possibility of having seen and identifying the accused persons  at that point of time. This witness has admitted that there were a  large number of people moving on the road at that point of time  and he has not given any specific reasons for recognising these  accused persons on that date. Apart from the fact that names of  PWs.2 and 3 are not mentioned in the FIR, they have also not  told the I.O. in their statement recorded under Section 161  Cr.P.C. that they had gone to the sweetmeat shop on that day.  So far as PW-3 is concerned it is seen from the evidence of  PW-43 Rupak Sarkar, the I.O. that this witness had not even  stated in his statement to the Police that he had known the  accused persons from before. Therefore the evidence of these  witnesses in the court in regard to their presence at the  sweetmeat stall becomes an improvement. In regard to PW-3,  there is also an improvement in regard to the identification of  accused by him. Thus, in the background of the fact that they  are chance witnesses, in our opinion we think it not safe to rely  on the evidence of these witnesses because their names are not  mentioned in the FIR, they did not tell the I.O. about their  presence at the sweetmeat stall and PW-3 improved his  statement in regard to the identification of the accused. The  courts below while accepting the evidence of all these witnesses   rejected the plea of defence to discard their evidence solely  because they were independent witnesses. The High Court also  observed that the omission of their names in the FIR is not fatal  because all details need not be mentioned in the FIR. Thus  certain glaring contradictions/omissions in the evidence of  PWs.2 and 3 and the absence of their names in the FIR has been  very lightly discarded by the courts below.

       The next witness relied by the prosecution to show the  presence of the accused and the deceased near Howrah Bridge  is PW-13 Rajesh Tiwari. This witness in his evidence states he  is a resident of M.S.P.C. Lane, Howrah. He had gone to Bara  Bazar in Calcutta to purchase 2 mirrors  and while returning by  foot he purchased a windsheeter on the way and ate some  Singharas. At about 8.50 p.m. he was proceeding on the right  side footpath of the Howrah Bridge when he noticed the  accused persons having an altercation with 2 boys whose names  he did not know inspite of knowing the identity, he did not  intervene in the altercation. He submits when he came to know  2 boys had been murdered on the Howrah Bridge on 1.12.1998,  he went to the Police Station on 5.12.1998 to inform  them  voluntarily about he having witnessed the accused and the  deceased on the Howrah Bridge on 1.12.1998. This witness has

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admitted that his brother was involved in a murder case  registered in Bantra Police Station which was investigating the  case of the murders of Pritam and Rudra also. To a question  asked by the defence as to the involvement of his brother in a  murder case as stated above, this witness answered thus :

                   "XXmn. for accd. Ramkrishna.

       x x x Jitendra Tiwari is my elder  brother. I do not know whether my elder  brother is an accd. of murder case or not in  Bantra P.S. Case No.78/1998 dated  2.10.1998. In this case my elder brother was  arrested."                       

       Suggestion put to this witness was that at the  instance of the Police, because his brother was seeking bail in  the said murder case, he had deposed falsely. This witness of  course has denied that fact but the fact remains his brother was  accused in the murder case. Therefore, we will consider the  evidence of this witness PW-13 in the background of the fact  that his brother was arrested on a charge of murder by the  Bantra Police Station. Admittedly, he has no known source of  income, he is a resident of Howrah, still he goes all the way to  Bara Bazar, Calcutta, to purchase two mirrors, and  coincidentally, he happens to be present at the right spot and at  the right time to see the altercation among these boys. The fact  that he had gone to Bara Bazar to purchase mirrors, was not  mentioned to the Police at the time when his statement was  recorded itself is an elaborate improvement in his evidence  before the court. In this background, if we examine his evidence  we notice the timing of his presence on the Howrah Bridge is  too far-fetched a coincidence to accept coupled with the fact  that his brother was involved in a pending murder case and of  all the witnesses, this witness volunteered to go to the Police  Station after 4 days to inform them of what he noticed on  1.12.1998 would make his evidence highly artificial for  acceptance by any reasonable person.  In such circumstances we think the High Court ought to  have been more cautious in accepting the evidence of this  witness.  For all the above reasons, the evidence of PWs.2, 3, 13  and 15 to which we have referred to hereinabove in our opinion  does not inspire confidence in us so as to accept the same for  the purpose of basing a conviction.                   The prosecution then relies on the evidence of PWs.22  and 25 to establish the fact that on 1.12.1998 at about 9 p.m. an  incident had taken place on the Howrah Bridge in which 2  youngsters allegedly jumped into the river. These two witnesses  were the Beat Constables on duty at the Howrah Bridge on that  day. PW-22 in his evidence states on 1.12.1998 he was posted  at North Port Police Station as a Constable and he was on duty  on the North side of Howrah Bridge from 8 to 12 p.m. along  with another Constable Hari Sankar Roy, PW-25. While on  duty at about 9 p.m. and when they were proceeding towards  Howrah side from Calcutta on foot and they heard a cry of  someone that a boy and a girl had jumped into the Ganges.  Somebody else told them that 2 boys had jumped into the  Ganges so they proceeded to the place of the incident and they  found 200 to 300 persons present there. Out of the assembled  persons some were saying that a boy and a girl had jumped and  some others were saying 2 boys had jumped into the river. He  then sent his partner to the Police station to inform the Duty  Officer and he started dispersing the crowd. He found a cycle

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by the side of Post No.12 of Howrah Bridge. He took the cycle  to the Police Station. He had identified the said cycle which  was later found to be that of deceased Rudra. This evidence of  PW-22 does not take the prosecution case any further than the  fact that on 1.12.1998 at about 9 p.m. he heard that 2 persons  had jumped from the Howrah Bridge. But something material  comes out of his cross examination during which he states there  are Police Goomties in the Howrah Bridge. In each Goomti one  Constable and one Officer remains posted round-the-clock.  There are policemen in civil dress guarding the bridge and  occasionally officers also check the bridge on mobile duty. He  further states that the traffic department controls the traffic on  Howrah Bridge and the incident in question would have taken  place about 20-25 cubits from Post or Goomty No.12.He also  stated that at the time of the incident there were a large number  of people either present at the place of incident or were  travelling on the bridge. He also stated that on being informed  the officers came to the spot and he was asked to take the cycle  to the Police Station. From his evidence it is clear that at all  given times or at least at 9 p.m. on 1.12.1998 on the Howrah  Bridge there were a large number of pedestrians and traffic. It is  also clear from his evidence nearly 200 to 300 persons were  present when or at about the time the incident took place.

         From the evidence of this witness, it is also seen that at  any given point of time, there are a number of policemen  guarding the Howrah Bridge; some are stationed in the  Goomties, some patrolling the bridge in civilian clothes, apart  from occasional supervision by the higher officers. It is also  clear from the evidence of this witness that at the time of the  alleged incident, there were hundreds of people present on the  bridge. In this background, if really an incident as stated by the  prosecution has taken place near Goomty No.12 which is hardly  20 to 30 cubits from the place of the incident, could these  accused persons have escaped the said place after the murder of  the deceased without being either noticed or chased by the  Police at least ? The incident as described by the prosecution  shows that 5 accused persons assaulted at least one of the  deceased and physically threw both of them over the bridge. If  it is really true, it does not appeal to ordinary commonsense that  neither the Police nor anyone out of the onlookers in the crowd  either tried to prevent the incident in question or prevent the  accused from fleeing the place of incident or at least would not  have raised an alarm which would have attracted the otherwise  complacent policemen on duty on the bridge. These are not  circumstances which could be easily discarded on the specious  plea that of late independent witnesses do not get involved in  preventing crime or becoming witnesses to such crime. How  then did they get PWs.2, 3, 13 and 15 to give evidence ? To this  extent, we think the explanation of the prosecution as to the  non-availability of an independent witness is contradictory.  There is another major doubt as to the place of incident as  projected by the prosecution which has alleged that the incident  took place at about 9 p.m. on the Howrah Bridge at a time,  according to PWs.3, 13, 22 and 25, there were hundreds of  pedestrians and vehicular traffic, according to PW-22, there  were many police personnel also present on the bridge. Then  will it be reasonable for the court to accept that these accused  chose such a busy place to commit the crime ? We think not. In  our opinion, even this part of the prosecution case is totally  opposed to ordinary human conduct.

       At this stage, it will be relevant to discuss the recoveries  of a letter and a book by the prosecution which according to  

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the prosecution establishes the further motive for murder. In  this regard, the prosecution relies on the evidence of PW-35  Barun Polley and PW-36 Subhro Sen to establish the fact that  letter Ex. V allegedly written by accused Mousam to accused  Vikky was recovered from the house of Vikky, while PW-16  Sukamal Dutta  and PW-17 Chiranjib Das were examined for  the purpose of proving the recovery of exercise book (khata)  from the house of accused Mousam. Prosecution has also relied  upon the evidence of handwriting experts and the forensic  laboratory personnel to establish the fact that the letter was in  the handwriting of the accused and the pages on which the said  letter was written were removed from the exercise book  belonging to Mousam. The defence has seriously challenged the  recovery contending that the recoveries were not proved as  required in law. That apart, the learned counsel for the  appellants also attacked the prosecution case as to the  handwriting of A-1 in the letter as also the legality of obtaining  specimen handwriting by the Police during the investigation.  We do not think it is necessary for us to go into all these  arguments because after examining the evidence of Panch  witnesses to the recoveries, we think the prosecution has not  established the recovery of the exercise book from the house of  Mousam, A-1 as also the letter from the house of Vikky, A-5. A  perusal of the evidence of PWs.16 and 17 who were the Panch  witnesses for the recovery of the exercise book shows that they  have not really seen the place from where this book was  recovered by the I.O.. From their evidence it is noticed that in  the case of the book, the I.O. went inside the house of A-1 and  came out with the book. Admittedly, these Panch witnesses  have not seen where exactly from the house this book was  recovered. They have only spoken about the fact that the I.O.  came out of the house with the book and told them that he  recovered it from the room of Mousam, A-1. Almost similar is  the evidence of PWs.35 and 36 who were the Panch witnesses  for the recovery of the letter  from the house of Vikky, A-5.  These witnesses have also not seen the actual recovery of the  letter. They had only seen the I.O. who told them that the letter  was recovered from the house of A-5 and signed the seizure  memo. In  our opinion this evidence is insufficient to prove the  recovery. The very purpose of requiring a Panch to witness the  recovery is to see that independent witnesses vouchsafe for the  fact that a particular thing was recovered from a place where  the prosecution alleges it was found. It is absolutely necessary  for these Panch witnesses to see and observe from where  exactly these articles were recovered. It is not sufficient if the  I.O. produced certain articles and informed the Panch witnesses  that he has recovered it from a particular place, unless the actual  place of recovery from where the article was recovered is seen  by the Panch witnesses. In the absence of the same, their  signatures on the recovery Panchnama become useless in  proving the recoveries. In the instant case we have noticed that  the Panch witnesses who signed the Panchnama for the  recovery of the letter and the exercise book, have specifically in  their evidence under oath, stated that the I.O. went inside the  respective room/house and came out with the articles and told  the Panch witnesses that he had recovered them. None of the  Panch witnesses had seen the actual recoveries therefore, as  contended by the defence, the prosecution has failed to establish  the recoveries as required in law. The fact that the mother of  Mousam, A-1 had signed the recovery Panchnama in regard to  the exercise book or mother of A-3 had signed the Panchnama  for the recovery of letter from the house of A-5 is of no  consequence. They are not the Panch witnesses, their evidence  is not before the court. In such a situation we agree with the  learned counsel for the appellants that the recoveries are not

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established in accordance with law hence the same has to be  ignored.             

       Before we conclude, we must place on record the fact  that we are not unaware of the degree of agony and frustration  that may be caused to the society in general and the families of  the victims in particular, by the fact that a heinous crime like  this goes unpunished, but then the law does not permit the  courts to punish the accused on the basis of moral conviction or  on suspicion alone. The burden of proof in a criminal trial never  shifts, and it is always the burden of the prosecution to prove its  case beyond reasonable doubt on the basis of acceptable  evidence. In a similar circumstance this Court in the case of  Sarwan Singh Rattan Singh v. State of Punjab [AIR 1957 SC  637] stated thus :  "It is no doubt a matter of regret that a foul  cold-blooded and cruel murder should go  unpunished. There may also be an element  of truth in the prosecution story against the  accused. Considered as a whole, the  prosecution story may be true; but between  ’may be true’ and ’must be true’ there is  inevitably a long distance to travel and the  whole of this distance must be covered by  the prosecution by legal, reliable and  unimpeachable evidence before an accused  can be convicted."

It is also a settled principle of criminal jurisprudence that  the more serious the offence, the stricter the degree of proof,  since a higher degree of assurance is required to convict the  accused.  We are also aware that this Court does not disturb the  concurrent findings of the courts below if the same are based on  legal evidence merely because another view is possible. Thus,  keeping in mind the caution expressed by Baron Alderson  (supra) as also the need to respect the concurrent findings of  two courts below, we have assessed the evidence in this case  very carefully, but in spite of the same we are unable to concur  with the findings of the courts below. In our opinion, both the  courts below have departed from the rule of prudence while  appreciating the evidence led by the prosecution.  On the above basis, we notice that :   (a) the prosecution has not satisfactorily established the   receipt of telephone call on 1.12.1998 from Mousam to  deceased Pritam as spoken to by PW-1,   (b) the evidence of PWs.2, 3, 13 and 15 are not  creditworthy hence  not safe to be relied upon;  (c)  the recoveries of the letter from the house of A-5 and  the exercise book from the house of A-1 are not proved as  required in law; Therefore, in our opinion the circumstances relied on by  the prosecution in this case are neither fully established nor are  consistent with the hypothesis of the guilt of the accused. These  circumstances do not exclude the hypothesis of innocence of  the accused, therefore, the appellants are entitled to the benefit  of reasonable doubt. Accordingly, we allow these appeals, set  aside the judgments of the courts below and acquit the  appellants of the charges framed against them.           

       The appeals stand allowed. The appellants, if in custody,  shall be released forthwith, if not required in any other case.

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