In CRR 4064 of 2022- CAL HC- Circumstance of last seen together cannot by itself form basis of conviction; Close proximity between time of last seen and recovery of dead body is necessary: Calcutta  HC
Justices Debangsu Basak & Md. Shabbar Rashidi [11-01-2023]

Read Order: THE HON’BLE COURT IN ITS OWN MOTION V. RAJU WILSON @ MONI

Mansimran Kaur

Kolkata, January 12, 2023: The Calcutta High Court has observed that non-explanation by the accused in the statement under Section 313 of the Criminal Procedure Code does not lead to proof of guilt.

The Division Bench of Justice Debansu Basak and Justice Md. Shabbar Rashidi disposed of the instant appeals by observing that the charge of murder as against the appellants stood established at the trial. 

Two appeals were heard analogously as they emanated out of the same impugned judgement of conviction and the order of sentence. By the impugned judgement of conviction the appellants were convicted under section 396 of the Indian Penal Code, 1860 and sentenced to life imprisonment.

The case of the prosecution was that on June 9, 2005, the duty officer of the jurisdictional police station received a telephonic message from one Deepak Verma who reported that when he visited flat number 18, third-floor, 6, Bishop Lefroy Road, Kolkata, he found the main door of the flat ajar and despite knocking he did not receive any response. 

The police responded to such telephonic information and reached the place of occurrence. Upon entering the flat through the main door which was open, it was found that the victim was lying on the floor of the dining room with her hands and feet tied with from bed sheets. She was identified. 

Upon inspection of the flat, the almirahs were found ransacked and various articles like clothes, antique jewellery boxes and bundles of cash were found scattered. A cardboard box with the name of Mr. Sundaram written on it was found.

An FIR was registered with regard to the incident. On completion of the investigations, the police submitted a charge sheet against the appellants and a juvenile. Charges were framed against the appellants for commission of offences punishable under section 396 read with section 120 B or alternatively section 302 read with section 120 B of the Indian Penal Code, 1860. The appellants pleaded not guilty and claimed to be tried.

At the trial, the Judge proceeded to convict the appellants and proceeded to award sentence thereunder by the impugned order of sentence.

After considering the submissions, the Court noted “The circumstance of last seen together cannot by itself form the basis of an order of conviction. In fact, if the last seen evidence does not inspire evidence or is not trustworthy, there cannot be any conviction. In order to constitute the last seen together as an incriminating circumstance, there must be close proximity between the time of last seen and the recovery of the dead body. However, the last seen together circumstance must be coupled with something more to establish the connectivity between the accused and the crime.” 

As per the Bench, the non-explanation by the accused in the statement under Section 313 of the Criminal Procedure Code does not lead to proof of guilt. The circumstances proved must form themselves into a complete chain to unerringly point to the guilt of the accused. The incriminating circumstances must be such as to lead to only one finding that is the guilt of the accused and exclude every possibility of innocence of the accused, the Court further noted. 

The Court noted that the failure of the appellants in explaining their conduct, in their examination under Section 313 of the Criminal Procedure Code was of no consequence. In order to connect the appellants with the crime, the prosecution led evidence as to the recovery of stolen articles belonging to the victim from the possession of the appellants. According to the prosecution, the appellants murdered the victim and stole valuables belonging to her. Both the murder and the stealing by the appellants were established by the prosecution at the trial.

 In the facts and circumstances of the present case, not only articles belonging to the victim were recovered from the possession of the appellants but the appellants were also last seen together with the victim immediately before the victim was found murdered. 

The amalgam of the appellants being of the factual matrix of the last seen together with victim and the recovery of articles belonging to the victim their leading statements negates the hypothesis of innocence, the Court noted. 

Hence, the Court was of the considered view that in such circumstances, it could be safely inferred that, the appellants were last seen together with the victim and were involved in the murder of the victim and that they stole articles belonging to the victim. 

The Court thus noted that alternative charges were framed against the appellants under Section 120B/396 and 120B/302. Since five persons were not involved at least the prosecution failed to establish the same, the question of convicting the appellants under Section 396 of the Indian Penal Code, 1860 did not arise.

However, the charge of murder as against the appellants stood established at the trial in light of the discussions as noted above. In such circumstances, the Court  found the appellants guilty of murder under Section 302/120B and sentenced the appellants to suffer life imprisonment.