Full Judgement
Aloke Nath Dutta & Ors Vs. State of West Bengal [2006] Insc 945 (12 December 2006)
S.B. Sinha & Dalveer Bhandari
W I T H CRIMINAL APPEAL NO.875 OF 2005 S.B. SINHA, J :
INTRODUCTION:
Premise No.2C, a three storied building situate at Beadon Street situated in the town of Kolkata, belonged to one Jagannath Dutta. He transferred the said property in favour of his wife Arunamoyee Dutta on certain terms and conditions wherewith we are not concerned. She had four sons and one daughter. During her life time, two of the sons, namely, Biswanath Dutta (deceased) and Aloke Nath Dutta, (appellant), were residing with her. Biswanath used to stay at the second floor with some tenants occupying some portions thereof; whereas Aloke Nath Dutta used to reside on the first floor. Her daughter Anuradha Das was married and was residing at Jadavpore. Two other sons, namely, Amar Nath Dutta (PW-4) and Samar Nath Dutta (PW-3) were residing in the towns of Chandannagore and Bararast respectively.
Arunamoyee Dutta died intestate in April, 1993. Aloke Nath was working with Kolkata Police, whereas Biswanath was employed in the United Bank of India. Biswanath was a bachelor, whereas Aloke Nath is married. Mamata one of the appellants herein, is Aloke Nath's wife. Sister of Mamata and her husband Shib Sankar Roy @ Gobinda @ Babu Roy were also residing on the first floor.
Appellants herein are alleged to have entered into a conspiracy to commit the murder of Biswanath on 22.01.1994 at the first floor of the said premises, the details whereof, we would deal with hereinafter.
PROSECUTION CASE:
Aloke Nath had many vices. He was a spendthrift. He was a womanizer and spent a lot of money in gambling and horse racing etc. He intended to sell the said house property, wherefor he entered into agreements for sale with one Nandlal Singh as also with one Arunmoy Bose. Arunmoy Bose advanced a sum of Rs.65,000/- to him. Nandlal Singh (PW-15) also had advanced various sums of money to Aloke Nath from time to time. He on the advice of his advocate Bikash Pal (PW-14) refused to advance any further sum till the time he was put in possession of the room of the second floor and the Puja Room; which was promised to be delivered on 23.01.1994.
Prosecution story is that the deceased was not in favour of sale of the said property. The transactions with regard to the sale of the said property, in favour of the said Nandlal Singh and Arunmoy Bose, however, were being conducted, as if Biswanath was a party thereto. Appellant Mrinal Dutta is said to have been impersonating Biswanath and singed several documents in his name.
Aloke Nath absented himself from duty from 7.00 p.m. on 22.01.1994 to 28.01.1994, as disclosed by his colleagues Sahadev Mondal (PW-33), Ananta KumarThanedar (PW-34), and Biman Ghosh Dastidar (PW-35).
Possession of Pooja Room and a room occupied by Biswanath was delivered to Nandlal Singh on 23.01.1994. Nandlal Singh noticed a newly constructed 'bedi' in the said room. He asked him the reasons therefor, and was informed that it was constructed for cooking purpose. He asked him to remove the same; whereto Aloke Nath promised to do so after registration of the sale deed. Nandlal Singh, as advised by his advocate, Bikash Pal, issued an advertisement in the Newspaper 'Ananda Bazar Patrika', a Bengali Daily, on 31.01.1994. Bikash Pal suspected that Aloke Nath might have other brothers and sisters and therefore advised issuance of such advertisement. Amar Nath, Samar Nath and Anuradha Das (PWs. 4, 3 and 5 respectively) informed Bikash Pal that they were also co-owners of the said property and were not agreeable to sell the house.
In view of the aforementioned developments, Samar Nath (PW-3), Amar Nath (PW-4) and Avijit Dutta (PW-6) allegedly visited the Premises No. 2C, Beadon Street on 06.03.1994. They enquired about whereabouts of Biswanath and were informed that he had started living at Barasat. They visited the house the address whereof was furnished by Aloke Nath. They found out the same to be bogus as no person called Biswanath had been residing there. They came back to Premises No.2C, Beadon Street. They insisted upon Aloke Nath to disclose the whereabouts of Biswanath, whereupon Aloke Nath allegedly broke down and made an extra judicial confession before them, as also Nandlal Singh and some tenants, that he had throttled Biswanath to death. While commotion was on, the officer in charge of the police station was informed by some neighbour of Aloke Nath.
While police was coming to the said premises, they met Samar Nath on the way, who was going to inform them about the incident. The police officer came to the said house. Aloke Nath was arrested in the afternoon of 06.03.1994. He was interrogated in the Police Station and was brought back by the police personnel. The other accused were arrested on the next day.
Aloke Nath is said to have made a confession at the police station that he had concealed the dead body in a platform (a kind of cistern made of sand and bricks). He pointed towards the said platform, whereupon two labourers and one mason were sent for; forensic experts were summoned. The said cistern was broken and dismantled. Foul smell came out therefrom and a human skeleton lying beneath the same was seen. The skeleton was said to have been identified to be that of Biswanath by Aloke Nath himself, which was seized and sent to morgue. Cause of the death, according to the autopsy report was asphyxia. Aloke Nath also made a confession leading to recovery of certain articles belonging to the deceased Biswanath from the rented premises which he had been occupying, as also a confession leading to recovery of some of the household articles.
Appellant Mrinal Dutta is also said to have made a statement under Section 164 Cr. P.C. before T. Uddini, Metropolitan Magistrate, 3rd Court Kolkata on 21.03.1994. He, however, retracted therefrom on or about 16.06.1994.
Investigation was conducted by Sub Inspector Sukhendu Barick attached to Burtolla Police Station. However the case was transferred to the Detective Department of Kolkata Police and from 08.03.1994, Sub Inspector Atanu Banerjee (PW-48) took over the investigation of the case.
After having filed the charge-sheet, cognizance of the offence was taken and the case was committed to the Court of Sessions.
CHARGE:
All the accused were put to trial. Three different sets of charges were framed against them, under Sections 120B/302/34 and 201/34 IPC, in the following terms :
"First That you, all in the month of January, 1994 at 2/C, Beadon Street, Calcutta, agreed to do and caused to be done an illegal act, to wit, to cause the death of Biswanath Dutta by murdering him to enable Aloke Dutta to sell the premises no. 2/C, Beadon Street, Calcutta and that such illegal act of murder was committed in pursuance to the agreement and you all thereby committed an offence punishable under Section 120B/302 of the Indian Penal Code, and within the cognizance of this Court of Sessions.
Secondly That you, all on about the night 22nd day of January 1994 at 2/C, Beadon Street, Calcutta, pursuant to the criminal conspiracy mentioned in Court No.1 above and with the common intention of you all, did commit murder by causing the death of Biswanath Dutta, and you are thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within the cognizance of this Court of Sessions.
Thirdly That you, all on or about the night of 22nd day of January 1994, at 2/C, Beadon Street, Calcutta, with the common intention of you all, to cause the evidence of murder to disappear and to screen the offenders, concealed the dead body of Biswanath Dutta after he was murdered, inside the cavity created on the wall shelf of the room of Aloke Dutta and thereafter covered the same by bricks and cements and you all thereby committed an offence punishable under Section 201/34 Indian Penal Code and within the cognizance of this Court of Sessions.
And I hereby direct that you be tried by the said Court on the said charge."
NATURE OF EVIDENCE :
Before the learned Sessions Judge, as many as 48 witnesses were examined on behalf of the prosecution. The brothers of Appellant Aloke Nath, viz. Amar Nath and Samar Nath, and Sister Anuradha examined themselves as PWs. 4, 3 and 5 respectively. Son of Amar Nath, Avijit, was examined as PW-6.
Witnesses examined on behalf of the prosecution can be sub-divided in three categories, namely, (i) Sale of house,
(ii) Tenants at Premises No. 2C, Beadon Street, and
(iii) Witnesses who testified about Aloke's character and conduct as also others like Photographer, labourers, Mason etc.
We would deal with the depositions of the prosecution witnesses hereafter at an appropriate stage.
SESSIONS JUDGE:
The learned Sessions Judge by reason of the judgment of conviction and sentence dated 29.08.2003 convicted Aloke Nath, Mrinal Dutta and Gobinda Roy under Sections 302/120B and 302/34 IPC and sentenced them to death. Mamata Dutta was, however, sentenced to suffer imprisonment for life under Section 302/34 IPC and to pay a fine of Rs.5,000/-, in default to suffer imprisonment of two more years. They were also convicted for commission of offence under Section 201/34 IPC and to pay a fine of Rs.3,000/- each, in default to suffer imprisonment for one more year. No separate sentence was awarded under Section 402/120B IPC.
Appellants preferred appeals before the High Court.
HIGH COURT:
The High Court agreed with the findings of the learned Sessions Judge. It was opined that all Appellants had hatched a conspiracy and the deceased was killed when he was asleep. While considering the quantum of punishment, the High Court sought to draw a balance between aggravating and mitigating circumstances and observed that the case comes within the category of rarest of rare cases. It was observed that the learned Sessions Judge had rightly exercised the option in favour of the capital punishment to Aloke Nath, Mrinal Dutta and Shib Sankar Roy @ Gobinda @ Babu. The High Court refused to differentiate the case of Aloke Nath from that of Mrinal Dutta and Gobinda @ Babu, holding that all the three were part of the conspiracy to execute the pre-planned murder of Biswanath. Upon screening of evidence, the High Court dismissed the appeals preferred by them. The order of conviction and sentence of the learned Trial Judge passed against Mamata was also upheld by the High.
SUBMISSIONS:
Arguments on behalf of Appellants have been advanced principally by Mr. Pradip Ghosh, the learned Senior Counsel appearing on behalf of Mrinal Dutta.
Submissions of the learned Senior Counsel are:
(i) The judgment of conviction being based on circumstantial evidence and there being no eye-witness; the prosecution cannot be said to have proved all the links in the chain so as to prove that Appellants were guilty of commission of the alleged offences.
(ii) Circumstantial evidences brought on records by the prosecution were not sufficient to bring home the charge of conspiracy against Appellants to commit murder of Biswanath.
(iii) The courts below committed a serious error insofar as they failed to distinguish between a larger conspiracy to commit a murder and a relatively smaller conspiracy for impersonation of Biswanath by Mrinal Dutta, committing the offence of forgery or cheating
(iv) As the purported extra judicial confession made by Aloke Nath was confined to acceptance of his own guilt, the courts below could not have convicted all Appellants under Section 302/34 IPC relying on or on the basis thereof.
(v) The purported confession made by Aloke Nath leading to recovery of the dead body and certain articles belonging to Biswanath which had been sold to Gobinda Sarkar (PW-26), did not conclusively lead to the prosecution's case of conspiracy; and no judgment of conviction could have been arrived at solely on the basis thereof, having not been corroborated in any manner whatsoever.
(vi) Confession of an accused, even if accepted, must be considered in its entirety and not in pieces
(vii) The judgment of conviction could not have been arrived at on the basis of judicial confession made by Mrinal Dutta which has since been retracted and was thus of weak evidentiary value, especially when there was no corroboration thereof
(viii) Mrinal Dutta was not put to test identification parade, although Aloke Nath was. His identification in court by the witnesses was of weak evidentiary value and no reliance could have been placed thereupon.
(ix) Judicial confession purported to have been made by Mrinal Dutta disclosed that he had been forced to join Aloke Nath and, thus, the courts below ought to have held that he made confession as a repenter and his being a party to the larger conspiracy was, thus, in serious doubt.
(x) In any view of the matter, extreme punishment of death could not have been awarded having regard to the nature of the evidences led by the prosecution.
Submissions of Mr. Altaf Ahmad, the learned Senior Counsel appearing on behalf of the State, on the other hand, were :
(i) That although there was no direct evidence as against Appellants, the sixteen circumstances enumerated by the learned Trial Judge and affirmed by the High Court, were based on positive evidences led on behalf of the prosecution.
(ii) Evidences, both oral and documentary, led by the prosecution were sufficient to arrive at the finding of guilt as against all the accused.
(iii) Extra judicial confession made by Appellant Aloke Nath having not been retracted and the same having been proved by a large number of witnesses including independent witnesses and it being voluntary in nature was rightly relied upon by the courts below.
(iv) Extra judicial confession made by Aloke Nath was made to his elder brothers Samar Nath (PW-3) and Amar Nath (PW-4) in the presence of his nephew Avijit Dutta (PW-6), the intending purchaser of the house Nandlal Singh (PW-15) as also two tenants of the premises, namely, Swapan Dutta (PW-18) and Bijoy Sharma (PW19) and their testimonies having not been shaken in cross- examination, the learned Trial Judge as also the High Court committed no error in passing the judgment of conviction and sentence as against all of them.
(v) A free and voluntary confession deserves due credit as it is presumed to flow from the highest sense of guilt.
(vi) Judicial confession might have been retracted, but the learned Trial Judge and the High Court upon analysis of the material brought on records came to the conclusion that the same was true and had been voluntarily made, and there is no reason to interfere with the said findings. It is not a rule of law that a judicial confession must be corroborated in materials produced by independent witnesses.
(vii) Appellant Mrinal Dutta having retracted his confession only at a much later stage without specifying any reason therefor; no importance thereto should be attached.
(viii) In his examination under Section 313 of the Code of Criminal Procedure he alleged torture at the hands of PW-44, but PW-44 having not been cross-examined on the said point, the judicial confession was admissible in evidence not only against the maker thereof, but also against the co-accused in terms of Section 30 of the Indian Evidence Act.
(ix) Enough materials by way of documentary and oral evidences of the witnesses were brought on records to prove criminal conspiracy showing not only that Mrinal Dutta but also Babu Roy and Mamata Dutta signed various documents executed by Aloke Nath.
(x) Judicial confession made by Mrinal Dutta contained vivid description of the manner in which the deceased Biswanath was done to death and his dead body was put in the bedi (platform) in the room occupied by Aloke Nath, the same was sufficient to prove the charge of conspiracy. In any event, involvement of all the accused persons in committing murder of Biswanath and disposing of the dead body has amply been proved.
DISCUSSIONS:
The incident took place on the night of 22.01.1994. Biswanath was last seen alive by some of the tenants, who were examined viz. Swapan Dutta (PW-18), Bijoy Sharma (PW-19), Albela Sukla (PW-20), and Raj Kishore Singh (PW-23). According to PW-18, he had seen Biswanath alive on the said date. He had also allegedly seen Biswanath being called by Appellant Aloke Nath to his own room. He was not heard and seen thereafter.
Analysis of the evidences is required to be done keeping in view the factual matrix involved herein.
Criminal Conspiracy:
Criminal conspiracy, if any, arose out of the greed of Aloke Nath. He needed money to satisfy his bad habits. A situation came to such a pass that he had to negotiate with two persons for sale of the house simultaneously.
He had taken money from both the intending purchasers. Apparently, with a view to extract money from the said two purchasers, he pretended, that he and the deceased were the only owners of the house. The deceased might not have been willing to sell the house, but he might not have also been aware of the transactions. Aloke Nath might have intended to keep him in dark and swallow the entire amount of consideration. His other brothers and sisters had also not been taken into confidence. Indisputably, they were on litigating terms with the deceased and Appellant Aloke Nath. Assistance of Mrinal Dutta in impersonating Biswanath was obtained by Aloke Nath. He was paid a sum of Rs.5,000/- for the same. He was impersonating Biswanath and had been signing, executing documents and posing himself as such at Aloke Nath's instance.
When Nandlal Singh (PW-15) pressurized Aloke Nath to hand over possession of a few rooms to him on the advice of his lawyer Bikash Pal, Aloke Nath apparently became desperate. Whether he hatched a conspiracy with the other Appellants at that point of time to do away with his brother Biswanath and dispose of his dead body so as to get the entire amount of consideration of the sale of the house, is the core question. There is no direct evidence to show that other Appellants also were part of the said conspiracy. Their presence had not been noticed by any of the witnesses.
Nobody saw them together in the house. Nobody saw Mrinal Dutta coming to the house even once. We are not oblivious of the fact that it is difficult to have direct evidence of conspiracy. But to prove conspiracy hatched to commit a heinous crime, circumstantial evidence brought on records must be such which would have no loose ends to tie.
Circumstances:
With the aforementioned principles in mind, we may now notice the various circumstances found to be existing against Appellants as enumerated by the learned Trial Judge and accepted by the High Court.
For the aforementioned purpose we may, at the outset notice, the statements of the witnesses whom we have categorized in Category (i).
PW-7, Shanker Dey is an attesting witness to the agreement for sale of the house in question with Arunmoy Bose (PW-8). He proved passing of an advance amounting to Rs.65,000/- to Aloke Nath. Arunmoy Bose who was the intending purchaser and with whom Aloke Nath had entered into an agreement also proved passing of the said consideration to Aloke Nath.
Both Shanker Dey (PW-7) and Arunmoy Bose (PW-8) also stated in details the negotiations leading to execution of the said agreement for sale.
Sudhakar Singh (PW-10) and Nawratan Singh (PW-16) were brokers.
They were employed by Nandlal Singh (PW-15). They have also deposed as to how the transactions relating to sale of the house by Aloke Nath in favour of Nandlal Singh proceeded. They have also proved passing of the amount of advance from time to time by Nandlal Singh in favour of Aloke Nath.
Bikash Pal, who examined himself as PW-14 is again a witness who was a witness to the said transaction. It was only at his instance Nandlal Singh refused to give further advance to Aloke Nath unless he had been put in possession of a part of the said property. Bikash Pal advised Nandlal Singh to publish an advertisement in the Anand Bazar Patrika as he suspected that there might be other owners of the property. He identified the accused in court. Other witness also identified them. Their evidences taken in entirety however do not lead to the conclusion that they conspired to murder Biswanath. But it is sufficiently clear that they conspired to sell the property.
We would deal with this question a little later at some depth.
We would hereinafter notice the alleged sixteen circumstances enumerated by the learned trial judge in his judgment and the evidences available in regard thereto :
1. Since the death of his mother, Aloke Nath tried to sell the house surreptitiously without informing his other brothers and sister, and as he was not supported by Biswanath, he endeavuored to sell the house secretly.
2. Prior to the said incident, Aloke Nath entered into an agreement with Arunmoy Bose (PW-8) and received a sum of Rs.65,000/- where Aloke Nath had put his signature and Mrinal Dutta had signed as Biswanath.
3. To earn more money and to grab the property of his brothers, Aloke Nath entered into an agreement with one Nandlal Singh (PW-15). He introduced Mrinal Dutta as Biswanath and delivered possession of the two rooms on the 2nd floor. He was asked to dismantle the kaccha bedi to he replied that the same would be dismantled later on.
Payment of advances was made from time to time.
4. Possession of the first floor was delivered in the month of February 1994, whereupon it was noticed that the 'bedi' had not been dismantled, instead it was made more stronger by fully plastering it with red colour cement.
5. As per advice of Bikash Pal (PW-14) an advertisement was published in Ananda Bazar Patrika for sale of the house.
6. Bikash Pal received three objections (Ex. 24 collectively). He in turn wrote two letters to PWs-3 and 4 (Ex. 25). When he informed thereabout Aloke Nath told that he was trying for settlement with them.
7. Possession of the first floor was delivered to PW-15 on 14.02.1994 by Aloke Nath and he told that Babu Roy would stay in the covered verandah for a couple of days.
8. In the morning of 06.03.1994, PWs-3, 4 and 6 reached the place of occurrence and found PW-15 in occupation. On being asked, Aloke Nath replied that Biswanath had left for Barasat and was staying at 11/1, Jhawtola Lane, near Barasat Chowrasta, whereafter they left for the said place.
9. PWs-3, 4 and 6 returned to Premises 2C, Beadon Street and as they did not find existence of the address, they charged Aloke Nath to speak the truth in presence of tenants, local people etc. Aloke Nath then confessed that he had throttled Biswanath to death in the midnight of 22.01.1994 and kept the dead body concealed inside the hosue.
10. On 06.03.1994, O/c Burtolla Police Station received a telephonic message from an anonymous caller about the disturbance in front of the said premises. Police recorded the statement of PW-3, Samar Nath and arrested Aloke Nath.
11. On the basis of the said confession, the bedi was dismantled by mason and labourers PWs-9, 30 and 31 and a human skeletonized body was found, which was identified by Aloke Nath to be of the deceased Biswanath. This fact has been proved by the PWs-3, 4, 6, 9, 15, 18, 19, 23, 30, 46 and 47.
12. PWs-3, 4 and 6 also disclosed about the special identification mark(s) of Biswanath. The doctor on examination of the skeletonised body opined that the same was homicidal in nature and the death was due to throttling.
13. Skeletonised body had been subjected to the superimposition test conducted by expert PW-41, who opined the examined skeleton to be that of a human male, 5'-6" feet tall, aged 40-50 years.
14. Biswanath was seen alive on 22.01.1994 as he went to the office which has been proved by Ex.64 and 64/1. Accused Mrinal Dutta in his confessional statement which is believable, remarked that Aloke Nath and Biswanath were seen together on 22.01.1994 between 10- 10.30 p.m. at 2C, Beadon Street. Biswanath was goaded to sleep in the verandah on the 1st floor, near Aloke Nath's bedroom on the plea that Biswanath's room on 2nd floor was under repair.
15. Accused Mrinal Dutta came to the premises and found Aloke Nath, Babu Roy, Mamata Dutta and her two daughters present there.
Thereafter, in the midnight of 22.01.1994, Aloke Nath had first entered into the covered verandah where Biswanath was sleeping and having found Biswanath in sound sleep, called Babu Roy, Mrinal Dutta and Mamata Dutta. Mamata gave one blanket to Aloke Nath who then covered the head and face of Biswanath with the blanket, Mrinal Dutta caught hold of the hands of Biswanath and Babu Roy held his legs. The accused Aloke Nath then pressed the neck of Biswanath and killed him.
16. After delivery of the possession of the first floor of the premises to PW-15, Aloke Nath shifted his residence to the tenanted premises. On the basis of his confessional statement (Ex. 108) and on being identified and pointed out by him, the Investigating Officer on 10.03.1994 recovered and seized the personal belongings of Biswanath. On some articles the name of Biswanath appeared.
Evidences accepted by the Trial Judge:
Re: Circumstnaces Nos.1 & 2:
PW-7 Shankar Dey, is the attesting witness to the agreement made by Aloke Nath with Arunmoy Bose to sell the house. He, as noticed hereinbefore, identified Mrinal Dutta as impersonating Biswanath.
Arunmoy Bose (PW-8) has also proved the said fact.
Re: Circumstances Nos. 3 & 4:
Sudhakar Singh (PW-10) and Nawratan Singh (PW-16) who worked as brokers on behalf of Nandlal Singh (PW-15). They were witnesses to the said transaction. Sudhakar Singh, Nawratan Singh and Nandlal Singh allegedly saw the kacha bedi, as also the objection on the part of Nandlal Singh in regard thereto, to which Aloke Nath responded by promising to dismantle the same, when the sale deed was registered.
Re: Circumstances Nos. 5 & 6:
Publication of advertisement in Anand Bazar Patrika on 31.01.1994 in respect of the transfer of Premise No.2C, Beadon Street, Kolkata (Ex.61) has been proved by Bikash Pal (PW-14), Nandlal Singh (PW-15), intending purchaser; as also Bijit Kumar Basu, General Manager (Law), Anand Bazar Patrika (PW-28). Amar Nath (PW-4), brother of Appellant Aloke Nath, in his evidence stated that he with his brother and sister filed objections before Bikash Pal in respect of the proposed sale. From the evidence of Bikash Pal (PW-14), it further appears that he confronted Aloke Nath with objections of his brothers and sister. Aloke Nath allegedly assured that he would settle the matter with them. Bikash Pal in his deposition further stated that according to Aloke Nath, there was a deed of family dispute. He has also proved that on earlier occasion Aloke Nath had mentioned only about his one brother and sister but the sister was never brought in picture; and only having become suspicious as regards correction of the said statement he advised Nandlal Singh for publication of the notice in the said newspaper.
Re: Circumstance No.7 :
Sudhakar Singh (PW-10), Nandlal Singh (PW-15) and Nawratan Singh (PW-16) were witnesses to the delivery of possession of the room which had been occupied by Aloke Nath. They stated that Aloke Nath represented that his brother in law and family would stay in the covered verandah, for a couple of days. He further represented that the 'bedi' would be dismantled immediately after registration. The evidence of the said witnesses also show that apparently Aloke Nath had contacted his brothers and sister and only on that basis he had asked Nandlal Singh (PW-15) to be present in the premises at 2C Beadon Street on 10.03.1994, as his elder brothers and nephew PWs 3, 4 and 6 would visit.
Re: Circumstance No.8:
The visit of PWs 3, 4 and 6 at the premises stood proved by their evidences. They further stated that when asked about the whereabouts of Biswanath, they were told that he was staying at 11/1, Jhawtola Lane, near Barasat Chowrasta; whereupon they visited that place and came back after they failed to ascertain the said address.
Re: Circumstance No.9:
Circumstance No.9 has been proved by PWs 3, 4 and 6 as also PWs 15, 18 and 19. The purported confession of Aloke Nath was made in presence of the said witnesses. The purported confession was made when PWs 3, 4 and 6 came back after search of the deceased at Barasat Chowrasta and accosted Aloke Nath with regard to the whereabouts of Biswanath.
Evidently they suspected some foul play. It is at that point of time, Aloke Nath was said to have broken down and made the confession before the said witnesses.
Re: Circumstance No.10:
It would appear from the evidences of Sukhendu Barick, Sub Inspector of Police (PW47) and Samar Nath (PW-3) that when the police, having received information that some untoward incident had happened at 2C, Beadon Street, was going to the said place, Samar Nah met them on the way who was going to the police station to lodge an F.I.R. The police came to the said premises and recorded his statement. Aloke Nath was arrested.
The said circumstance has been proved by Samar Nath (PW-3) and Amar Nath (PW-4), brothers of Appellant Aloke Nath, Avijit Dutta son of Amar Nath (PW-6), Nandlal Singh (PW-15), Swapan Dutta (PW-18) and Bijoy Sharma (PW-19), tenants of the said house. Thereafter Aloke Nath made confession.
Aloke Nath made three confession :
(i) confession stating the manner in which the deceased was killed as also burial of his dead body;
(ii) confession leading to the recovery of the dead body; and
(iii) confession relating to the disposal of the belongings of Biswanath.
Relevant portions of the second confession are as under :
"On the night of 22.01.1994, after strangulating my elder brother Biswanath Dutta to death, I built up kind of a cistern with bricks, sand and cement underneath the cupboard on the southern side of a first floor room of our ancestral home, in which I used to live, and hid the dead body of my elder brother inside it and sealed the cistern, giving it the shape of a masory platform. If I am taken along there I can show that room and the masory platform built inside it.
After having buried the dead body of my elder brother Biswanath Dutta into the cistern. The excess brick, sand and cement had been kept under a cot in our house. If I am taken along, I can show them as well.
Recorded by me, read-over explained and admitted to be correct." "After killing my elder brother Biswanath Dutta, I hid his valuable belongings like record player, tape, radio, wall clock, amplifier, suitcase, shirts, trousers, bag, three trunks etc. and many other articles in my bedroom at my present address at J/F/6/1, Ashwini Nagar, Bidhan Palli, Baguihati, Calcutta-59. If I am taken along there I can show that room and the belongings of my elder brother.
The police interrogated me and recorded my statement.
Recorded by me, read-over explained and admitted to be correct." Relevant portions of the third confession is as under:
"After killing my elder brother Biswanath Dutta,I sold the wooden almirah in his room, mirror and many other articles including our domestic pump set etc. to Gobind Sarkar a resident of Nimtala for seven thousand rupees. If I am taken along, I can identify Gobinda Sarkar, his residence and those articles.
Selling of those articles (partly torn) and I got the money from Gobind Sarkar and give him a receipt for the same.
The police interrogated me and recorded my statement.
Recorded by me, read over, explained and Bengali and admitted to be correct." Re: Circumstance No. 11 :
His confession lead to the recovery of the dead body, PW-3, PW-4, PW-6, PW-9, PW-15, PW-18, PW-19, PW-23, PW-30, PW-46 and PW-47 were witnesses to the said recovery. Sukhendu Barick, Sub-Inspector (PW- 47) allegedly sent for masons for demolishing the Bedi; whereupon Jatin Singh (PW-9) and Gopal Pramanik (PW-30) masons, came and demolished the Bedi. A human body in form of skeleton was noticed, which was taken out and identified to be that of Biswanath. Ashok Kumar Banerjee, Inspector of Kolkata Police (PW-47) is also a witness to the said occurrence.
Re: Circumstances Nos. 12 and 1 :
Circumstances Nos. 12 and 13 relate to the identification of the dead body and its autopsy. Biswanath was to have an extra tooth. It was proved by his brothers PW-3 and PW-4 as also his nephew PW-6. It was found to be an identification mark. The ante-mortem injuries on the dead body and the opinion of Dr. Nandy (PW-39), Autopsy Surgeon ,are as under :
"There was 4" x 3" area of extravasation of blood on the surface of trachea and surrounding soft tissue along with hyoid and thyroid. There was fracture hyoid bone on the right cornue with evidence of extravasation on the margins. Evidence of extravasation on the posterior aspect of oesophaeal 2" x <" size against 3rd, 4th and 5th cordial vert. Extravasation are more on the right side of midline for both trachea and oesophagus and also other tissue. The extravasation were blakish red in colour. No other injury could be detected ever after careful examination. The right femur was 17.8", the 12.3" and the right ulna 11.1". The changes in symphyseal surfact were at part with the mentioned age of 43 years. I preserved stomach with contents both kidneys and liver insaturated solution of common salt. Sample of preservative was preserved. Scalp hair heart were preserved without any preservative, nail cutting preserved tissue from extravagated area preserved. Both preserved. There was no blood of neck for example throttling ante-mortem and homicidal in nature. This is the report which bears my signature." The dead body was also examined by Dr. V.K. Kashyap (PW-41). In his evidence, he opined that the dead body was of a human male, aged about 40-45 years and his height would be around 5' and 6".
Re: Circumstance No.14:
Swapan Dutta (PW-18) was a tenant of the second floor of the premises (pages 109-113). He saw Biswanath at 10-10.30 p.m. on the night of 22.01.1994. According to the said witness, he was taken to the first floor of the house by Aloke Nath on the pretext that his room was under repairs.
He had testified that Biswanath was not seen thereafter. Kartick Chandra Sinha, (PW-29) who was the Chief Manager of the United Bank of India, also proved that from 23rd January, 1994 onwards Biswanath did not attend his office.
Re: Circumstance No.15:
There is no independent witness to prove the said fact except the purported confessional statement of the accused Mrinal Dutta. His purported confession before the Magistrate is as under:
"My wife's brother Gobindo Roy used to stay on rent at the house of Alok Nath Dutta at (2/C) Beadon Street, I was introduced to Alok through Gobindo. Alok and me used to visit each other's house. Alok did not bear a good character. He used to have stakes in horses, Satta (a sort of numbers game played for gambling) and also used to go to at prostitutes. Alok's elder brother Biswanath Dutta also used to stay at the same house.
They did not have good relation among them. Alok told me during the Puja of 1993 that he would sell his house and also tried hard for that. On the last November he told me that he wanted to sell the house but since his elder brother was not agree to sign, I had to sign in the name of Biswanath Dutta. At first I did not agree. Then he told that he would give me money. "You sign it". I was in need of money, so I agreed with that. Then he took my signature in the name of Biswanath Dutta in quite a few sheets of paper. He gave me Rs.5000/- (five thousand rupees only) in instalments. After that he told me to sign in a quite a few sheets of papers. In date 19/20 on the last January month of 1994 he came to my house and said, I think the house cannot be sold "Dada" (Elder brother) is not agreeing to put his signature. It is better to eliminate 'dada' (elder brother). He said, "I am thinking of murdering my 'Dada' (Elder brother)". I said him, "I cannot do this". He said, 'You had put fake signature. So, if we get caught, we will not spare you either." Mamata Dutta is the wife of Alok Dutta.
Gobinda Roy signed some of the papers while Mamata signed some others. Gobindo is the brother of my wife.
He is also the husband of my wife's sister. He left after we stopped and on the following I went to Alok's place.
He told me further that he would pay me Rs.10,000/- more. I said, if I am spared for this, then I am agree to do this". I found Gobindo, Alok, Mamnata the three were sitting at his house. They closed the door after they took me to the room at first floor. Then he, Gobindo, Alok and Mamata said to me, on 22nd January, at night, you will come. Gobindo and Alok will make all the arrangements". While leaving they said, if you don't come, we shall harm you". As usual I came to Alok's house on 22nd January at 10.00 p.m. and saw that Alok, Gobindo, Mamata and two daughters of Alok talking.
As I went they let me in and shut the door. As I entered in the room I saw that there was a little brick wall under the cupboard (wall Almirah). There were some cement, sand and bricks on the floor. Just at 10.30 p.m.
Biswanath Dutta came to the house. Alok said to Biswanath, the work is going on at the room of second floor. "You lie down on the wooden cot at the veranda on the first floor". Biswanath lied down on the veranda.
We were sitting inside the room. At about 12/12.30 p.m. two daughters of Aloke were slept. Then Alok came outside. After some time came inside the room and said, Dada (elder brother) had slept. Then Mamata gave Alok a rug. Gobindo, Alok and I came outside. At once Gobinda held two legs of Biswanath. I held two hands.
Alok suffocated Biswanath on placing the rug on his face and neck, after 7/8 minutes Alok took the rug from the face of Biswanath. Then he pulled the hairs of Biswanath and on turning the eye lids he saw and said, "the work has been done. Immediately four of us took the dead body inside the room and laid the dead body inside the brick-structure after folding two legs. Then all of us filled up the rest of the sand and bricks which were kept aside over the dead body. Mamata handed down the water and the bricks. By the time we finished it had dawned. After that at about 5.30/6 Alok left for his own home, while going Alok said "you have to come again at noon-time." Again at noon time I came to his house. He then told me to sign in a paper. After signing that I went to my house. > days after that I met Alok at his place.
He said, "I cannot give you any money now". I will see it after some time. I could not sleep well after returning home. I used to move in fear I stayed outside from my house for some days. On the last 07.03.1994 (Eng) police arrested me from my house." T. Uddini (PW-43) was the Magistrate, before whom the purported confession was made by Mrinal Dutta. He had issued a certificate as is required under Section 164 of the Code of Criminal Procedure . He testified that he had satisfied himself that confession made by Mrinal Dutta was voluntary.
Re: Circumstance No. 16:
Subhas Mazumdar (PW-11) and Nripen Chandra Das (PW-12) are witnesses to Aloke Nath's entering into an agreement of tenancy and shifting to Premises at JF-6/1, Aswini Nagar, Bidhan Pally, Baguihati and recovery of goods. Atanu Banerjee, Sub Inspector of Police (PW-48), also testified as regards recovery of goods from the said premises.
FINDINGS:
We may now consider the evidences available on records for analyzing the reasonings of the courts below vis-`-vis involvement of each of Appellants before us.
Aloke Nath :
Title in respect of the property in question is not in dispute. The fact that Aloke Nath and his three brothers and one sister inherited the said property from their mother also stands admitted. A faint attempt has been made by the learned counsel appearing on behalf of Appellants to convey the possibility of the brothers of Aloke Nath implicating him owing to the property, but we can safely ignore the same.
The events began from November 1993. It was only Aloke Nath who had asked Mrinal Dutta to sign some blank papers impersonating Biswanath.
He was paid a sum of Rs.5,000/- therefor. On the basis thereof, agreements for sale were executed by and between Aloke Nath and Biswanath with Nandlal Singh. Out of the agreed amount of consideration of Rs.2,60,000/-, a sum of Rs.60,000/- was paid to him. A sum amounting to Rs.30,000/-, Rs.20,000/- and Rs.10,000/- were paid on 11.11.1993, 12.12.1993 and 25.12.1993 respectively by Nandlal Singh to him. Although Aloke Nath received a substantial amount, his greed did not end there. He, as noticed hereinbefore, entered into another agreement for sale with Arunmoy Bose (PW-8) who had also paid a sum of Rs.65,000/- by cheque. He must have spent the entire amount or at least a substantial part of it.
Biswanath was allegedly killed on 22.01.1994. The second floor of the house which was in occupation of Biswanath was handed over to Nandlal Singh on 23.01.1994 upon receipt of further advance. The first floor was handed over on 14.02.1994, after Aloke Nath shifted to his new residence. So far as Aloke Nath is concerned, having regard to the charges framed, both the circumstantial evidence as also the extra judicial confession made by him are relevant. His further statements leading to the recovery of the dead body as also recovery of articles belonging to Biswanath are also relevant. It has also been proved that he sold some of the articles belonging to the deceased.
It is, however, disturbing to note that a confession has not been brought on records in a manner contemplated by law. Law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together.
We intend to point out that only that part of confession which is admissible would be leading to the recovery of dead body and/or recovery of articles of Biswanath, the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have been done. It may influence the mind of the court.
[See State of Maharashtra v. Damu S/o Gopinath Shinde & Others (2000) 6 SCC 269 at p. 282 para 35] In Anter Singh v. State of Rajasthan [(2004) 10 SCC 657], it was stated:
"11. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya v. Emperor in the following words, which have become locus classicus: (AIR p. 70, para 10) "It is fallacious to treat the fact discovered within the section as equivalent to the object produced;
the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."" [But see Dhananjoy Chatterjee @ Dhana v. State of West Bengal [(1994) 2 SCC 220 at p.234-235] Therefore, we would take note of only that portion of the confession which is admissible in evidence.
Apart from raising a contention that the extra judicial confession had not been recorded in the exact words of the maker thereof, no serious argument has been advanced with regard to its truthfulness or otherwise thereof. It was an oral confession. Evidently, the two brothers of Appellant Aloke Nath, namely, Samar Nath (PW-3) and Amar Nath (PW-4) as well as his nephew Avijit Dutta (PW-6) became highly agitated after being misled by Aloke Nath as he had made wrong statements as regards the whereabouts of Bishwanath. They were also perturbed as the house property was sought to be sold without taking them into confidence.
In this context, it is important to revisit the events which took place on and after 31.01.94. Before meeting further demands of Aloke Nath, Nandlal on advice of his advocate Bikash Pal published an advertisement in Anand Bazar Patrika on 31.01.94 inviting objections against the proposed registration of the property.
In response to said advertisement, Aloke Nath's two elder brothers, Amar Nath and Samar Nath with sister Anuradha raised objections. Aloke Nath wanted to settle the matter with his co-owners. Presumably with that end in view he thought to invite his brothers for discussion at the premises No. 2C, Beadon Street on 06.03.1994.
The incident which had taken place on that day may be divided in two parts:
(i) the manner in which PWs 3, 4 and 6 visited the place whereabout they were wrongly informed as regards Biswanath's new address; and
(ii) when they came back after a futile search and confronted Aloke Nath as to why they were misled and again demanded information in regard thereto.
Identification of the dead body has not been seriously disputed before us. Although in a given situation, the court might have scrutinized the issue more closely, in view of the overwhelming evidence, it is not necessary for us to do so. Identification of the skeleton as that of Biswanath by Aloke Nath has not been disputed. It is accepted that he had an extra tooth is also not in question. The height of the deceased and his age again has also not been disputed.
The fact that a platform was newly constructed is amply borne out from the materials on record. Nandlal Singh (PW-15), his brothers PW-3 and PW-4 and the brokers PW-17 and PW-18 stated, in no uncertain terms, that not only despite having been asked Aloke Nath did not dismantle the same, but in fact the same was re-enforced and painted with red colour.
Evidence as regards Aloke Nath's reply to the query regarding the construction of 'bedi' that the same was meant for cooking purpose, is also not in much dispute.
The fact that Aloke Nath had disposed of the belongings of the deceased and other household materials is also not in much dispute. It is not necessary for us to notice evidences of other witnesses who had testified about his character and misconduct, namely, Biswanth Basak (PW-21), Soumitra Nayak (PW-22), Subir Mullick (PW-25), Gobinda Sarkar (PWs- 26) and Bebashish Kar (PW-27). The circumstances enumerated by the learned Trial Judge in the light of the evidences brought on record and the extra judicial confession made by Aloke Nath, in our opinion, lead to only one conclusion that the dead body recovered was that of Biswanath and it was Aloke Nath who was responsible for his death.
He does not dispute that he was a party to the transactions with Nandlal Singh and Arunmoy Bose. His many vices are amply borne out from the materials. His absence from duty 11.01.1994 to 28.01.1994 has also been proved by his colleagues PW-33, PW-34 and PW-35.
EXTRA JUDICIAL CONFESSION:
If the prosecution witnesses are to be believed that Aloke Nath made an extra judicial confession and furthermore in view of the evidences on record, it has to be held that the same was voluntary in nature. The same having been spontaneous in the form of natural response to a stressful stimulus made at the spur of the moment, we, for the reasons stated hereinafter, do not see as to why the same should be discarded. He was understandably reeling under a great mental strain. He might have killed his own brother, with a view to satisfy his greed of money, but the circumstances clearly demonstrate that he had been pushed to the wall. He knew that his brothers and sister would definitely ask for an explanation as to why without consulting them he tried to sell the house. A 'bedi' was constructed in his own bedroom which one day or the other, was bound to be dismantled and the fact that a dead body buried therein would come out.
He had delivered possession of bedroom which was occupied by his brother Biswanath, as also the premises which was in his occupation. He, therefore, was not in a position to dismantle the bedi and remove the dead body clandestinely. It is not that he was under any threat even by his brothers. He was required to give a satisfactory explanation and he made a false statement on the morning of 06.03.1994 as regards the address of Biswanath. He was caught on the wrong foot. Events which took place immediately thereafter also assume great significance. His confession was made before a large number of persons. Each one of them would not have been able to remember the words used by him in his confession. But then there was absolutely no reason as to why the tenants of the premises would tell a lie.
PW-18 and PW-19, were tenants of the premises. It had not been suggested, that they were in any way inimically disposed towards him.
Aloke Nath made extra judicial confession not only in presence of his own elder brothers PW-3 and PW-4 but also in the presence of his nephew (PW-6), the intending purchaser of the house (PW-15) as also the two tenants of the premises PW-18 and PW-19. The evidences of these witnesses are consistent and we do not see any reason as to why we should disagree with findings of the courts below in this behalf.
Our attention has been drawn to a decision of this Court in Heramba Brahma and Another v. State of Assam [AIR 1982 SC 1595], wherein this Court opined:
"18. We are at a loss to understand how the High Court accepted the evidence of this extra-judicial confession without examining the credentials of PW 2 Bistiram; without ascertaining the words used; without referring to the decision of this Court to be presently mentioned wherein it is succinctly stated that extra- judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed" The said decision was rendered on its own facts. A purported confession was made by the Appellant therein to another undertrial prisoner in jail. They were not known to each other. There had been no previous association between the witness and the other accused person. The court in the said factual backdrop, opined that it was highly improbable that such confession would be made. Heramba Brahma (supra) is not an authority for the proposition that extra judicial confession must pass the test of reproduction of the exact words. The tests laid therein are cumulative in nature. What is necessary for the court is to arrive at the conclusion as to whether such confession has been retracted or not. No suggestion had been given to the witnesses that confession had not been made. No circumstances had been brought out in cross-examination or by examination of independent witnesses that the statements of witnesses proving such confession are not correct.
In State of Rajasthan v. Raja Ram [(2003) 8 SCC 180], it was held:
"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
It was further observed:
"20. If the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned counsel for the respondent-accused, is a matter of prudence and not an invariable rule of law" In the case of Gagan Kanojia and Anr. v. State of Punjab [Criminal Appeal Nos. 561-62 and 563 of 2005, decided on 24.11.2006, this Court opined :
"Extra-judicial confession, as is well-known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration.
Extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved can be relied upon by the courts." In Nazir Khan & Others v. State of Delhi [(2003) 8 SCC 461], this Court held:
"A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilty" [See also Ram Khilari v. State of Rajasthan (1999) 9 SCC 89; and Namala Subba Rao v. State of A.P. 2006 (10) SCALE 253].
It will also be relevant to consider State of Rajasthan v. Kashi Ram [2006 (11) SCALE 440], wherein this court observed:
"There was nothing to show that he had reasons to confide in them. The evidence appeared to be unnatural and unbelievable.
The High Court observed that evidence of extra-judicial confession is a weak piece of evidence and though it is possible to base a conviction on the basis of an extra- judicial confession, the confessional evidence must be proved like any other fact and the value thereof depended upon the veracity of the witnesses to whom it was made." Recently, this Court held in the case of Kulwinder Singh v. State of Punjab [Criminal Appeal No. 675 of 2006], decided on 05.12.2006, this Court held:
"the evidentiary value of an extra-judicial confession must be judged in the fact situation obtaining in each case. It would depend not only on the nature of the circumstances but also the time when the confession had been made and the credibility of the witness who testifies thereto." In his confession Aloke Nath takes the entire blame on himself. We are not persuaded to hold that the courts below erred in opining that extra judicial confession of Aloke Nath is in any way doubtful.
On the aforementioned evidence, the involvement of Aloke Nath, in our opinion, is proved beyond any shadow of doubt.
We, therefore, hold that he has rightly been convicted of charges leveled against him.
OTHER APPELLANTS:
Circumstantial Evidence:
We have analyzed the evidences adduced by the prosecution to establish sixteen purported circumstances which had been relied upon by the prosecution in order to bring home the guilt of the other Appellants herein.
Circumstances Nos. 14 and 15 enumerated by the learned Trial Judge directly relate to the manner in which Biswanath was allegedly murdered.
We will hereafter proceed on the basis that Circumstance No. 1 to 13 had also been proved against them also. The question which would, however, arise is as to whether the circumstances leading to establishment of the guilt of the murder of Biswanath can be said to have been proved by reason of the purported circumstantial evidence as also the retracted confession of Mrinal Dutta and extra judicial confession of Aloke Nath. So far as extra judicial confession of Aloke Nath is concerned, he implicated only himself and did not implicate any other person in the conspiracy.
Circumstances nos. 1 to 13 are considered to be part of the same transactions but Circumstances nos. 14 to 16 relate to distinct and different charges. Appellants other than Aloke Nath, had not been seen by anybody else immediately before or after the alleged occurrence. In fact there is no eye-witness to the alleged occurrence. The neighbours were also not examined to show that any untoward incident had taken place. There is furthermore no evidence on record to show that any of Appellants had even taken part in concealment of the dead body. The prosecution did not examine any witness to establish the case as to how the other Appellants had helped Aloke Nath in procuring bricks and cement or whether any other person had helped him in concealment of the dead body.
As Aloke Nath had taken the entire blame on himself and did not speak anything in regard to involvement of the other appellants, there is no evidence in regard to the meeting of mind with reference to the plot of murder. Aloke Nath evidently was in a desperate situation. He required money. Others did not. Motive on the part of other Appellants is not explicit. Therefore, others cannot be treated to be his accomplice. Even the statements made by him, leading to recovery of the dead body or other articles belonging to the deceased, do not implicate the other Appellants in any manner whatsoever.
We may assume that other Appellants conspired with Aloke Nath for selling the house. Mrinal Dutta evidently had signed the blank papers. He purported to have executed some documents impersonating Biswanath. But the question which must be posed and answered would be as to whether they were parties to a bigger conspiracy of murder. Signing of certain documents, impersonation of Biswanath by Mrinal Dutta or the other Appellants' signing the said documents as witnesses, per se would not lead to the conclusion that at any point of time they had agreed with Aloke Nath that Biswanath should be eliminated.
There is no eye-witness to the occurrence. Nobody has noticed any suspicious conduct on part of the Appellants indicating their role in committing murder or disposing the dead body. While dealing with a case of grave nature like the present one, there is always a danger that conjectures and suspicion may take the place of legal truth. This court has laid down guidelines from time to time in regard to a finding of guilt solely on the basis of circumstantial evidence in a number of cases. The process started with Hanumant Govind Nargundkar and Another v. State of Madhya Pradesh [AIR 1952 SC 343] wherein the law was laid down in the following terms :
"It is well to remember that 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 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. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P-3-A or outside and we are constrained to observe that the courts below have just fallen into the error against which warning was uttered by Baron Alderson in the above mentioned case." Yet again in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 = (1984) 4 SCC 116], this Court laid down the law in the following terms :
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidenc
