SK. YUSUF versus STATE OF WEST BENGAL

13. The persons particulariy Rezwan Ali and Sirajul who had told these witnesses that they had seen the appellant- G accused near the jhinga field at the relevant time had not been examined. More so, it has not been stated by any of the aforesaid witnesses or persons not examined that Sahanara Khatun (deceased) was also seen there alongwith Yusuf, appellant. It has not been deposed by any of the witnesses that H deceased was seen talking with the appellant at all. SK. YUSUF v. STATE OF WEST BENGAL [DR. B.S. CHAUHAN, J.]

14. The last seen theory comes into play where the time .gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Vide: Mohd. Azad alias Samin v. State of West Bengal, (2008) 15 SCC 449; and State thr. Central Bureau of Investigation v. Mahender Singh Dahiya, (2011) 3 SCC 109).

15. From the above, it is evident that neither Abdul Majid Mallick (PW.4) nor Abdul Rashid (PW.5) had stated that either of them had seen Sahanara Khatun (deceased) alongwith Yusuf, near the place of occurrence in close proximity of time. All the witnesses deposed that appellant alone was seen near the place of occurrence with spade as he had gone there for catching the fish. Thus, there is no evidence to the extent that the deceased. and appellant were seen together at the place of occurrence or nearby the same in close proximity of time.

16. While the appellant-accused was examined by the trial Court under Section 313 of Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C.), he was asked the question that during that time Abdul Rashid (PW.5) and Swapan Murmu (not examined) had seen him talking with the deceased. The appellant replied that he was innocent.

17. We fail to understand as no witness had deposed seeing Sahanara Khatun, deceased talking with the appellanU accused, how such a question could be put to the accused. EXTRA-JUDICIAL CONFESSION:

18. Nurul Islam (PW.11 ), maternal uncle of the deceased, resident of village Rupsona, is not a witness of incident, rather ·deposed that he was the person who chased and apprehended the appellant after about 7 days of the incident. The relevant . part of his statement reads as under: "After 6-7 days, when I went to Shyamsundar Bazar for my c [2011) 8 S.C.R. business, I saw Yusuf on the roof of a bus. He got down from the bus after seeing me. He told me that he did the. wrong and begged apology for that and pleaded not to assault him but take him to Jamalpur Police Station. I took Yusuf towards Batrish Big ha village by boat and when we crossed the river Damodar, Yusuf started running. I chased him but failed to catch him and then cried for help. Thereafter, public caught Yusuf at Jamalpur Poolmatha. When we took him to the village, Yusuf admitted to him and others that he murdered Sahanara Khatun and, thereafter, he asked the persons to take him to Jamalpur Police Station. Yusuf told them that he attempted to commit rape upon Sahanara Khatun and when she resisted, he assaulted her with the spade on her head and killed her and concealed the dead body in the graveyard". (Emphasis added) In his cross-examination, PW.11 repeated the same about the confession made by Yusuf, appellant before him in presence of other persons of the village.

19. Ali Hossain (PW.13) is a resident of the village of Nurul Islam (PW.11) and deposed: " …… I went to Shyamsundar Bazar for purchasing goats. At that time, we see the accused on the roof of a bus. My friend Nurul Islam who was with me asked the accused to come down and he came down from the roof of the bus and requested us not to assault him and to take him at the Police Station Jamalpur and thereafter Nurul Islam took the accused towards Jamapur Police Station." In the cross examination, his deposition is as under: "I did not state to 1.0. that after crossing the river at Karalaghat the accused ran towards Jamalpur. I did not chase the accused by crying – catch, catch. I did not state to 1.0. that some persons of Jamalp1Jr caught the accused. SK. YUSUF v. STATE OF WEST BENGAL [DR. S.S. CHAUHAN, J.] …. I alone went to Shyamsundar Bazar. Thereafter I purchased goats from Shyamsundar Bazar. I cannot say anything more about the occurrence."

20. By comparison of the statements of Nurul Islam (PW.11) and Ali Hossain, (PW.13), it is evident that Nurul Islam (PW.11) did not state anywhere in his statement in the court that at the time of apprehending the accused, Ali Hossian (PW.13) was also with him. It is only Ali Hossain (PW.13) who stated that his friend Nurul Islam (PW.11) was .with him. He further stated that it was Nurul Islam who asked the accused to come down from the roof of the bus and the accused came down. The statement of Nurul Islam (PW.11) is otherwise that he saw Yusuf, appellant, on the roof of the bus. Yusuf, appellant, got down from the bus after seeing him and told him that he did the wrong and begged apology for that. Ali Hossain (PW.13) did not speak anywhere regarding any confession, though stated that the accused requested them nqt to assault, rather to take him to police station. The material contradictions are there in respect of the manner in which the appellant had been apprehended. Ali Hossain (PW.13) did not state that appellant made an attempt to runaway after making the said witness.

21. Digambar Mondal (PW.19), the Investigating Officer has deposed that he had noticed the marks of injury on the cheek, forehead and he'ad of the deceased. The wearing apparels of the victim were not soaked with blood. He only sent the wearing pant of the victim for chemical examination. He seized spade but did not sent it for chemical analysis. In his cross-examination he has stated as under: "The witness Nurul Islam stated to me that the accused was caught by some persons at Jamalpur Pool- matha and thereafter police came and at that time the accused stated before those persons and police that he tried to commit rape Sahanara on 31.8.1998 and when she resisted the accused hit her with a spade and thereafter hid her body in the court-yard by digging some earth there''. (Emphasis added)

22. Both, Nurul Islam (PW.11) and Ali Hossain (PW.13) are B chance witnesses as they alleged to be in Shyamsundar Bazar on ,that date for marketing and none of them had regular business in that bazar. The Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and require appreciation with C great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear. unambiguous and clearly convey that D accused is the perpetrator of the crime. The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility". (See: State of Rajasthan v. Raja Ram, (2003) 8 SCC 180; and Kulvinder Singh & Anr. v. State of Haryana, (2011) 5 SCC 258).

23. Nurul Islam (PW.11) wh_o is maternal uncle of the ~ deceased had deposed about extra-judicial confession made by the accused in presence of others, though he was not able to explain who were the other persons as no other person has been examined in this respect. Digambar Monda! (PW.19) had F deposed that Nurul Islam (PW.11) had told him about the confession by the accused in presence of other persons and police personnel. The accused had told him also that dead body was buried in the courtyard. Thus, the theory of extra- judicial confession revealed by Nurul Islam (PW.11) does not G get corroboration from the statement of Ali Hossain (PW.13) or any other independent witness or police personnel. Nor the body of the deceased was recovered from the courtyard. While considering the material contradictions in the statement of Nurul Islam (PW.11) and Ali Hossain (PW.13), we do not consider H that it would be safe to accept his version in this respect.

SK. YUSUF v. STATE OF WEST BENGAL . [DR. B.S. CHAUHAN, J.) 24; Dr. Samudra Chakraborty (PW.18), who conducted A the autopsy on the body ofSahanara Khatun found the following injuries: (i) One incised wound 4" x 0.2" x scalp deep over middle 3rd of left parietal region (vault of the scalp) B cutting through the skin, pussa, muscle, vessel and nerve and being placed 1.2" left on mid-line of the body; (ii) Bruises over 1" x 0.6" x over left side of forehead and being placed 0.5" left of mid~line of the body; C (iii) One lacerated wound 0.6" x 0.4" muscle and bone deep over left molar region with extra-vesation of blood and blood-clot in around the wound; (iv) . Haema toma (red) 3.2" x 1.5" in area over left D temporal parietal region; .. · (v) Subdural haemorrhage of both sides of tempero parietal region of the brain. In the opinion of the doctor, death was due to combine effect of injuries and suffocation.

The incised wound could be caused by a hit of sharp edge of the spade. The haema toma on the victim could be caused by a hit of heavy blunt weapon. This witness did not speak of any sign of sexual assault on the deceased before or after her death. ABSCONDANCE:

25. Both the courts below have considered the circumstance of abscondance of the appellant as a G circumstance on the basis of which an adverse inference could be drawn against him. It is a settled legal proposition that in case a person is absconding after commission of offence of . which he may ·not even be the author, such a circumstance alone may not be enough to draw an adverse inference against H [2011) 8 S.C.R. him as it would go against the doctrine of innocence. It is quite possible that he may be running away merely being suspected, out of fear of police arrest and harassment. (Vide: Matru @ Girish Chandra v. The State of U.P., AIR 1971 SC 1050; Paramjeet Singh@ Pamma v. State of Uttarakhand AIR 2011 SC 200; and Rabindra Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490) Thus, in view of the law referred to hereinabove, mere abscondance of the appellant cannot be taken as a circumstance which give rise to draw an adverse inference C against him.

26. CIRCUMSTANTIAL EVIDENCE: Undoubtedly, conviction can be based solely on · circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own leps and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Vide: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, Krishnan v. State G represented by Inspector of Police, (2008) 15 SCC 430; and Wakkar & Anr. v. State of Uttar Pradesh, (2011) 3 SCC 306).

27. No presumption could be drawn on the issue of last seen together merely on the fact that Abdul Rajak (PW.2), father H of the deceased had stated that Sahanara Khatun had gone SK. YUSUF v. STATE OF WEST BENGAL . [DR. B.S. CHAUHAN, J.] to pluck the jhinga and her dead body was recovered from · there. The witnesses merely stated that the accused was present in the close proximity of that area. That does not itself establish the last seen theory because none of the witnesses said that the accused and deceased were seen together. Most of the witnesses had deposed that the accused was having spade. It may connect the appellant to the factum of digging the earth. A person going for catching fish normally does not take a spade with him. The nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section .27 of C Indian Evidence Act, 1872 is very limited.

If an accused deposes to the police officer the fact as a result of which the weapon with which the crime is committed is di~covered, and as a result of such disclosure, recovery of the weapon is made, no inference can be drawn against the accused, if the~e is no evidence connecting the weapon with the ~ime alleged to have been committed by the accused.· Be that as it may, the spade had not been sent for chemical analysis as admitted by Digambar Mondal (PW.19), 1.0. himself and there was no explanation furnished as for what reason it was not sent. In case of circumstantial evidence, not sending the weapon used in crime for chemical analysis is fatal for the reason that the circumstantial evidence may not lead to the only irresistible conclusion that the appellant was the perpetrator of the crime and none else and that in the absence of any report of Serologist as to the presence of human blood on the weapon may make the conviction of the accused unsustainable.

(Vide: Akhilesh Hajam v. State of Bihar (1995) Supp 3 sec 357). There is no medical evidence or suggestion by any person as to the sexual assault on the deceased. Therefore, it merely remained the guesswork of the people at large. Mere imagination that such thing might have happened is not enough to record conviction.

28. This incident.had occurred in a broad day light at 9.30 a.m. in the month of August in the agricultural field surrounded by agricultural field of others. Therefore, the presence of a large number of persons in the close vicinity of the place of occurrence can be presumed and it is apparent also from the B statement of Aliful Rahmal (PW.6). Thus, had the deceased been with the appellant, somebody could have seen her at the place of occurrence. It cannot be a positive evidence as concluded by the courts below that none other than the appellant could commit her murder because no one else had been there c at the place of occurrence. In fact, nobody had ever seen the deceased at the place of occurrence. Digging the earth by a single person to the extent that a dead body be covered by earth requires a considerable time and there was a possibility that during such period somebody could have seen the person indulged in any of these activities, though no evidence is there to that extent. The circumstances from which the conclusion of guilt is to be drawn in such a case should be fully established. The circumstances concerned "must or should" and "not and may be" established. In the instant case, the circumstances have not been established.

29. In view of the above, we are of the considered opinion that the courts below convicted the appellant on a mere superfluous approach without in depth analysis of the relevant facts.

30. In the facts and circumstances of the case, the appeal succeeds and is allowed. The appellant is given benefit of doubt and acquitted of the charges of offences punishable under Sections 302 and 201 IPC. Appellant is in jail. He be released G forthwith unless his detention is required in any other case. N.J. Appeal allowed.