Section 106 of the Indian Evidence Act, 1872 imposes an obligation on the accused to explain as to what happened after they were last seen together



CRIMINAL APPEAL No.130 of 2012

…. Appellant

This Appeal is filed against the judgment dated 22.03.2010 of the
High Court of Judicature at Calcutta in Criminal Appeal No.326 of 2005 by
which the conviction of the Appellant under Section 302 Indian Penal Code,
1860 (hereinafter referred to as the ‘IPC’) and sentence of life
imprisonment by the Additional Sessions Judge, Fast Track 2nd Court,
Siliguri in Sessions Trial No.03/04 dated 11.02.2005 was confirmed.
A decapitated body was found lying in the Chandmuni Tea Estate near
Himachal Behar Abasan Project at 13:15 hours on 03.02.2004. On the basis
of a written complaint made by Bhupendra Nath Singh (PW-12), the
investigation commenced and the Appellant along with Hira Routh and Khogesh
Bansfore were arrested.

During the course of investigation the statements of accused persons were
recorded on 04.02.2004. The accused led the police to Chandmuni Tea Estate
area where the cut head was found wrapped with the wearing apparel of the
deceased Sambhu Mallick son of late Pandi Mallick of Kuli Para, Siliguri.
It was found concealed with soil and dry leaves in a garden drain. The
body and the head of the deceased were identified by his relatives. The
decapitated body and the cut head were sent for post-mortem to the North
Bengal Medical College and Hospital and the seized articles along with
wearing apparel of the deceased were sent to the R.F.S.L., Jalpaiguri. The
weapon used for the commission of offence was also recovered on the basis
of the statement and disclosure made by the accused persons from a
concealed place on 08.02.2004.

Charges under Sections 302/201/34 IPC were framed against all the three
accused persons who pleaded not guilty and claimed to be tried. After a
detailed consideration of the entire evidence on record, the Additional
Sessions Judge, Fast Track 2nd Court, Siliguri found all the accused
persons guilty of committing an offence under Section 302/201/34 IPC and
sentenced them to suffer imprisonment for life. The Trial Court relied
upon the testimonies of PW-3, PW-4 and PW-5 who are the family members of
the deceased – Sambhu Mallick in its detailed discussion of oral evidence.
PW-3, the wife of the deceased deposed that her husband was a sweeper by
profession and at about 02:00 pm on 02.02.2004 the three accused persons
and the father of Dilip Mallick came to their house and asked the deceased
to accompany them for cleaning a safety tank. The Appellant took the cycle
of deceased Sambhu Mallick and carried him on the cycle. As the deceased
did not return home, PW-3 started searching for him in the evening. She
went to the house of the Appellant and was informed by the Appellant’s
father that her husband and the Appellant went to clean a safety tank.
The deceased did not return home that night. She met the Appellant on the
next day morning and enquired about her husband. The Appellant asked her
to go to Matigara Police Station. PW-3 deposed that she went to the Police
Station but did not find him there. On 04.02.2004 she came to know about a
beheaded body near Chandmuni Tea Estate area. It was identified to be that
of her husband by her mother-in-law and sister-in-law from his wearing
apparel. PW-4 and PW-5 are the sister and mother of the deceased
respectively who corroborated the evidence of PW-3.

The post mortem over the beheaded body and the cut head was conducted by
Dr. U.B. Ray Chaudhary (PW-10) at North Bengal Medical College and
Hospital. The post mortem report Exh. 11 which was issued by PW-10 shows
that there were eight stab injuries on the chest, stomach and other vital
parts of the body. It was stated in the post mortem report that proximal
and distal part of the neck fitted snugly with each other and that the head
and the rest of the body belonged to the same individual. PW-14 was the
witness to the seizure list marked as Exh.17 in respect of recovery of an
iron made Khukri used in the crime. It was approximately 13 inches in
length with a wooden butt and was recovered as per the statement and
information of the accused on 08.02.2004.

The Trial Court held that the chain of circumstances was clearly
established by clinching evidence which proved that the accused persons had
committed the offence. The Appellant and the other accused Hira Routh and
Khogesh Bansfore challenged their conviction and sentence by filing an
Appeal before the High Court of Calcutta. The counsel appearing for the
State conceded that the evidence against Hira Routh and Khogesh Bansfore
was not sufficient for their conviction and that she could not support the
judgment of the Trial Court in respect of their conviction and sentence.
The High Court re-appreciated the evidence on record and upheld the
conviction and sentence of the Appellant qua Section 302 IPC. The
Appellant was acquitted of the charge under Section 201 IPC. The other two
accused, Hira Routh and Khogesh Bansfore, were acquitted of all the
charges. The High Court held that there were three circumstances against
the Appellant. The three circumstances relied upon by the High Court are
that the accused and the deceased were last seen together, that the accused
attempted to mislead PW-3 regarding the whereabouts of the deceased and
that the accused did not offer any explanation about the events of
02.02.2004. The High Court held that though the prosecution failed to prove
the recoveries made pursuant to the joint disclosure statement, the other
circumstances clearly pointed to the guilt of the accused.

After hearing the counsel for both the parties, we have examined the oral
and documentary evidence on record and we are of the opinion that the
judgment of the High Court does not warrant any interference. This is a
case of circumstantial evidence. The approach to be adopted in
appreciation of evidence in cases of circumstantial evidence is by now well
settled. The facts in cases of circumstantial evidence should be
consistent only with the hypothesis of guilt of the accused and the
circumstances should be of conclusive nature and tendency. It has been
held by this Court that the chain of evidence should be 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. (See (1984) 4 SCC 116). On the
basis of the above well-settled principles, we proceed to examine whether
the accused can be held to be guilty.

PW-3, PW-4 and PW-5 who are the family members of the deceased were
consistent in their testimonies that the deceased and accused were last
seen together at around 02:00 pm on 02.02.2004. There is a burden on the
accused to give an explanation about what happened after they left the
house of the deceased. No explanation was given about the events of
02.02.2004 after they left from the house of the deceased. In the
examination under Section 313 Cr. P.C. the accused denied any knowledge of
the crime and alleged false implication. Section 106 of the Indian
Evidence Act, 1872 imposes an obligation on the accused to explain as to
what happened after they were last seen together. PW-3 gave evidence to the
effect that the accused was not found in his house in the evening on
02.02.2004 when she went to enquire about her missing husband. She also
stated that when she met the accused on the next day morning, the accused
misled her by saying that she should go to Matigara Police Station in
search of her husband. It is clear that the accused who was with the
deceased on the earlier day did not give a proper answer to PW-3 and asked
her to go to the Matigara Police Station which indicates that he was
suggesting to PW-3 to complain to the police. These are strong
circumstances against the accused.

There is one circumstance pertaining to recovery which could not be proved
by the prosecution beyond reasonable doubt. The High Court held that
recovery of the weapon and the severed cut head of the deceased was not
corroborated by PW-7 and PW-14 who were seizure list witnesses. The High
Court also held that the recorded version of the statement made by the
Appellant which led to recovery was not produced by the prosecution. The
High Court found that there was no evidence to show as to which particular
article was recovered at whose instance pursuant to the joint statement
made by the accused. The High Court proceeded to hold that the
circumstances relating to recovery was not proved by the prosecution. The
High Court concluded that the Appellant was guilty on the basis of other
circumstantial evidence. We are in agreement with the conclusion of the
High Court that though the recovery was not proved, the other
circumstantial evidence is sufficient to prove the guilt of the accused.

We affirm the judgment of the High Court and dismiss the Appeal. The
Appellant was enlarged on bail by this Court vide order dated 05.02.2016 on
the ground of his prolonged incarceration for 11 years. He is directed to
surrender before the jail authorities immediately to undergo the remaining
part of his sentence, failing which the authorities concerned are directed
to proceed in accordance with law.


New Delhi,
February 14, 2017