{"id":166206,"date":"2011-06-14T00:00:00","date_gmt":"2011-06-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sk-yusuf-vs-state-of-west-bengal-on-14-june-2011"},"modified":"2015-05-05T00:21:23","modified_gmt":"2015-05-04T18:51:23","slug":"sk-yusuf-vs-state-of-west-bengal-on-14-june-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sk-yusuf-vs-state-of-west-bengal-on-14-june-2011","title":{"rendered":"Sk. Yusuf vs State Of West Bengal on 14 June, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sk. Yusuf vs State Of West Bengal on 14 June, 2011<\/div>\n
Author: . B Chauhan<\/div>\n
Bench: B.S. Chauhan, Swatanter Kumar<\/div>\n
                                                                           REPORTABLE\n\n\n\n\n                IN THE SUPREME COURT OF INDIA\n\n              CRIMINAL APPELLATE JURISDICTION\n\n\n                 CRIMINAL APPEAL NO. 831 of 2007\n\n\n\n\nSK. Yusuf                                                                ...Appellant\n\n\n                                      Versus\n\n\nState of West Bengal                                                      ...Respondent\n\n\n\n\n\n                               J U D G M E N T\n<\/pre>\n
Dr. B.S. CHAUHAN, J.\n<\/p>\n
1.            This criminal appeal has been preferred against the judgment <\/p>\n
and order dated 28.06.2006 passed by the High Court of Calcutta in <\/p>\n
C.R.A.No.   229   of   2000,   by   which   it   dismissed   the   appeal   of   the <\/p>\n
appellant   against   the   judgment   and   order   of   conviction   dated <\/p>\n
26.5.2000   passed   by   the   Additional   Sessions   Judge,   First   Court, <\/p>\n
Burdwan   in   Sessions   Trial   No.   7   of   1999,   convicting   the   appellant <\/p>\n
under   Sections   302   and   201   of   the   Indian   Penal   code,   1860 <\/p>\n
(hereinafter referred to as `IPC’) and appellant has been imposed the <\/p>\n
sentence   to   suffer   rigorous   imprisonment   for   life   under   Section   302 <\/p>\n
IPC   and   sentence   of   one   year   under   Section   201   IPC.     Both   the <\/p>\n
sentences have been directed to run concurrently.\n<\/p>\n
2.     The facts and circumstances giving rise to this case are that:\n<\/p>\n
(A)    On   31.08.1991,   Sahanara   Khatun,   daughter   of   Abdul   Rajak, <\/p>\n
resident   of   village   Batrish   Bigha,   PS:   Jamalpur,   aged   13   years,   had <\/p>\n
gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did <\/p>\n
not return till 10.30 A.M., her father Abdul Rajak alongwith Habibur <\/p>\n
Rahaman   and   Sirajul   Islam   went   to   search   her,   however,   could   not <\/p>\n
trace her in the jhinga field. They looked for her in bamboo grove  in <\/p>\n
nearby graveyard and found a freshly dug earth, thus, they removed <\/p>\n
the soil and found the dead body of Sahanara Khatun.\n<\/p>\n
(B)    Imdad   Ali   (PW.1)   lodged   the   FIR   on   the   same   day   at     12.05 <\/p>\n
hours   under   Sections   302   and   201   IPC   at   Police   Station   Jamalpur, <\/p>\n
District   Burdwan   at   a   distance   of   8   kilometres   from   the   place   of <\/p>\n
occurrence,   wherein   the   appellant   was   named   as   accused   on   the <\/p>\n
suspicion   that   appellant   was   seen   by   Abdul   Rashid   (PW.5)   and <\/p>\n
Swapan  Murmu catching  fish in  the canal  adjoining   his  jhinga  field <\/p>\n
and was also seen talking with deceased.  The appellant was having a <\/p>\n
spade in his hand, when it is inquired from the appellant, he replied <\/p>\n
that he had gone to catch the fish near railway track.   Subsequently, <\/p>\n
                                                                                    2<\/span><\/p>\n
the   appellant   absconded.   In   the   FIR,   it   had   already   been   mentioned <\/p>\n
before   committing   the   murder,  Yusuf,   the   appellant   tried   to   commit <\/p>\n
rape and on being resisted by the deceased, the appellant assaulted her <\/p>\n
on her head with spade and murdered and buried her in the graveyard.\n<\/p>\n
Thus, investigation ensued. The appellant was arrested on 7.9.1991 by <\/p>\n
the villagers in the paddy fields near Batrish Bigha and handed over to <\/p>\n
the police. It was on his disclosure that an old spade, one ghuni and <\/p>\n
one   enamel   thala   (plate)   were   recovered.     After   completing   the <\/p>\n
investigation, chargesheet was filed against the appellant. He denied <\/p>\n
his involvement in the crime pleading not guilty. Thus, he was put to <\/p>\n
trial.  The prosecution examined 19 witnesses to prove its case.\n<\/p>\n
(C)    After   conclusion   of   the   trial,   the   Additional   Sessions   Judge, <\/p>\n
Burdwan,   vide   judgment   and   order   dated   26.5.2000   found   the <\/p>\n
appellant   guilty   of   offences   punishable   under   Sections   302   and   201 <\/p>\n
IPC   and   sentenced   him   to   life   imprisonment   and   fine   of   Rs.1,000\/-\n<\/p>\n
under   Section   302   IPC   and   further   sentenced   to   one   year   rigorous <\/p>\n
imprisonment and fine of Rs.500\/- under Section 201 IPC.\n<\/p>\n
(D)    Being   aggrieved   from   the   aforesaid   judgment,   the   appellant <\/p>\n
preferred   Criminal   Appeal   No.   229   of   2000   in   the   High   Court   of <\/p>\n
Calcutta   which   has   been   dismissed   vide   judgment   and   order   dated <\/p>\n
28.6.2006. Hence, this appeal.\n<\/p>\n
                                                                                   3<\/span><\/p>\n
3.      Shri R.K. Gupta, learned Amicus Curiae, has submitted that it <\/p>\n
is a case of circumstantial evidence.   There is no evidence on record <\/p>\n
that   Sahanara   Khatun,   deceased,   was   seen   with   the   appellant   at   the <\/p>\n
place of occurrence. The spade recovered by the Investigating Officer <\/p>\n
during investigation had not been sent for chemical analysis.  The trial <\/p>\n
court   as   well   as   the   High   Court   placed   a   very   heavy   reliance   upon <\/p>\n
extra-judicial confession allegedly made by the appellant before Nurul <\/p>\n
Islam (PW.11) and Ali Hossain (PW.13) and others though there was <\/p>\n
no such confession.  Nurul Islam is the brother-in-law of Abdul Rajak <\/p>\n
(PW.2), father of the deceased.  Ali Hossain (PW.13) is a resident of <\/p>\n
the village of Nurul Islam (PW.11).  He did not support the version of <\/p>\n
extra-judicial confession put forward by Nurul Islam (PW.11).  There <\/p>\n
are contradictory statements regarding catching hold of the appellant <\/p>\n
at Jamalpur after one week of the incidence.  There is  no evidence of <\/p>\n
sexual   assault   on   the   deceased.   Dr.   Samudra   Chakraborty   (PW.18), <\/p>\n
who   conducted   the   post-mortem   on   the   body   of   Sahanara   Khatun <\/p>\n
(deceased) did not mention in his report that any sexual assault was <\/p>\n
made on the deceased  prior to her death.  Thus, the appeal deserves to <\/p>\n
be allowed.\n<\/p>\n
                                                                                      4<\/span><\/p>\n
4.      On   the   contrary,   Shri   Tara   Chandra   Sharma,   learned   counsel <\/p>\n
appearing   for   the   State,   has   vehemently   opposed   the   appeal <\/p>\n
contending   that   there   are   concurrent   findings   of   fact   which   do   not <\/p>\n
require any interference by this Court.  Undoubtedly, the case is based <\/p>\n
on   circumstantial   evidence   but   chain   is   complete   and   the <\/p>\n
circumstantial evidence is so strong that it unmistakably points to the <\/p>\n
guilt   of   the   appellant   and   that   circumstances   are   incapable   of <\/p>\n
explanation upon any other reasonable hypothesis  that of the guilt of <\/p>\n
the   appellant.     There   have   been   sufficient   material   on   the   basis   of <\/p>\n
which the two courts below have convicted the appellant and the said <\/p>\n
judgments do not require any interference.  The appeal lacks merit and <\/p>\n
is liable to be dismissed.\n<\/p>\n
5.      We   have   considered   the   submissions   made   by   the   learned <\/p>\n
counsel   for   the   parties   and   perused   the   record.       Before   proceeding <\/p>\n
further, it may  be necessary to refer to the findings recorded  by  the <\/p>\n
courts below briefly.\n<\/p>\n
6.      Trial Court’s findings:\n<\/p>\n
I.      It appears  from the evidence  of Nurul  Islam (PW.11)  and Ali <\/p>\n
Hossain (PW.13)  that the accused  made  an extra-judicial  confession <\/p>\n
before   them  and   also   before   other   villagers   when   he  was   caught  by <\/p>\n
                                                                                     5<\/span><\/p>\n
them   about   7   days   after   his   leaving   away   from   his   village   after   the <\/p>\n
date   of  occurrence.     The   court   further   held   that   there   was  no   direct <\/p>\n
evidence and it was a case of circumstantial evidence and there was <\/p>\n
enough evidence on record, particularly, of Imdad Ali (PW.1), Abdul <\/p>\n
Rajak   (PW.2),   Habibar   Rahaman   (PW.3),   Abdul   Majid   Mallick <\/p>\n
(PW.4),   Abdul   Rashid   (PW.5),   Alirul   Rahmal   (PW.6)   and   Abdul <\/p>\n
Salam   Mallick   (PW.7)   that   accused   was   present   near   the   place   of <\/p>\n
occurrence at the relevant time when Sahanara Khatun, deceased went <\/p>\n
to jhinga field and the accused was carrying at that time one spade.\n<\/p>\n
II.     It   appears   from   the   evidence   of   Abdul   Rashid   (PW.5)   and <\/p>\n
Alirul   Rahmal   (PW.6)   that   there   was   no   one   else   at   the   place   of <\/p>\n
occurrence adjacent to jhinga field and the accused was carrying one <\/p>\n
spade   on   the   basis   of   which   the   trial   Court   came   to   the   following <\/p>\n
conclusion:\n<\/p>\n
       “So there may be a reasonable inference that the accused, <\/p>\n
       who   had   one   spade   in   his   hand   and   who   was   engaged   in <\/p>\n
       catching  fish near  the  P.O.,  suddenly   attacked  the victim-<\/p>\n
       Sahanara when she came to the jhinga field and thereafter <\/p>\n
       attempted to rape her and when he was resisted by her he <\/p>\n
       became violent and murdered Sahanara with the help of his <\/p>\n
       spade.     The   medical   evidence   given   by   Dr.   Samudra <\/p>\n
       Chakraborty   (PW.18)   will   corroborate   that   Sahanara   was <\/p>\n
       murdered   by   Yusuf   with   a   sharp-cutting   weapon,   which <\/p>\n
       may be a spade and also by suffocation. The accused only <\/p>\n
       had the opportunity to assault Sahanara in such a way as he <\/p>\n
       carried   the   spade   with   him   at   that   time   and   there   is   no <\/p>\n
                                                                                         6<\/span><\/p>\n
         evidence   from   any   side   that   except   the   accused   such   a <\/p>\n
         spade was carried at that time by anybody else. Moreover, <\/p>\n
         the   accused   himself   had   admitted   in   his   extra-judicial <\/p>\n
         confession   before     Nurul   Islam   (PW.11)   and   Ali   Hossain <\/p>\n
         (PW.13)   and   others   that   he   murdered   Sahanara   at   the <\/p>\n
         relevant time when he was resisted by her from committing <\/p>\n
         rape upon her at the relevant time”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
III.     Extra-judicial confession came from the mouth of the witnesses <\/p>\n
who   appeared   to   be   unbiased   and   not   even   remotely   inimical   to   the <\/p>\n
accused. Undoubtedly,   Nurul Islam (PW.11) was a maternal uncle of <\/p>\n
the deceased but another witness in this regard i.e. Habibar Rahaman <\/p>\n
(PW.3) had no relationship with the family of the victim. Therefore, his <\/p>\n
evidence to the extent of extra-judicial confession would be legally and <\/p>\n
validly   taken   into   consideration.   The   trial   Court   basically   found   the <\/p>\n
incriminating   circumstance   against   the   appellant   as   he   is   absconding <\/p>\n
and   ultimately   it   found   that   there   was   cogent   evidence   against   the <\/p>\n
appellant.\n<\/p>\n
7.              High Court’s findings:\n<\/p>\n
        The High Court has  accepted  the judgment  of the trial  Court in <\/p>\n
 toto   observing   that   depositions   of   the   witnesses,   particularly,   Abdul <\/p>\n
 Majid Mallick (PW.4) and Abdul Rashid (PW.5) remained unshaken <\/p>\n
 to the extent that at the material time  they found the accused near the <\/p>\n
 place   of   graveyard   with   spade   in   his   hand.   Another   circumstance <\/p>\n
                                                                                     7<\/span><\/p>\n
which swayed with the High Court had been that just after the incident <\/p>\n
the   appellant   ran   away.   The   High   Court     has   accepted   non-\n<\/p>\n
examination of some material witnesses, particularly, Swapan Murmu, <\/p>\n
Rejaul   and   Sirajul,   accepting   the   explanation   furnished   by   Abdul <\/p>\n
Majid Mallick (PW.4) that at the relevant point of leading evidence, <\/p>\n
none   of   these   persons   was   available   in   that   area.   The   extra-judicial <\/p>\n
confession   made   by   the   appellant-accused   before   Nurul   Islam <\/p>\n
(PW.11) and Ali Hossain (PW.13) in presence of others has also been <\/p>\n
accepted.   Further,   the   High   Court   had   accepted   the   explanation <\/p>\n
furnished by the prosecution that in case there has been some laches <\/p>\n
on the part of the Investigating Officer in sending the spade etc. for <\/p>\n
chemical analysis, no adverse presumption can be drawn against the <\/p>\n
prosecution.   The motive had been found as to the possibility of the <\/p>\n
accused   trying   to   commit   sexual   assault.   All   these   factors   had   been <\/p>\n
found by the High Court of the conclusive nature as to exclude every <\/p>\n
other possibility except the accused being guilty of the offence.\n<\/p>\n
8.      The   case   requires   to  be   examined   as   to  whether   the  aforesaid <\/p>\n
findings are sustainable in the eyes of law.\n<\/p>\n
LAST SEEN THEORY:\n<\/p>\n
                                                                                     8<\/span><\/p>\n
9.       The   courts   below   have   concluded   that   there   was   sufficient <\/p>\n
material on record to show that the deceased and the appellant were <\/p>\n
seen   together   at   the   place   of   occurrence.   Abdul   Rashid   (PW.5)   is <\/p>\n
alleged   to   have   stated   in   this   regard.     The   relevant   part   of   his <\/p>\n
statement  reads as under:\n<\/p>\n
       “When  I  was  returning   from  my  field  at  9.00  A.M.,  I  saw <\/p>\n
       Yusuf, appellant, catching fish near the jhinga field adjacent <\/p>\n
       to   the   graveyard.     I   talked   with   him   there   and   thereafter <\/p>\n
       returned home.  I did not see anybody else near that place. <\/p>\n
       At   about   10.45   A.M.,   I   heard   that   the   dead   body   of   the <\/p>\n
       Sahanara Khatun was recovered from the graveyard as  she <\/p>\n
       had   been   murdered   by   someone.     I   went   to   graveyard <\/p>\n
       alongwith   others.     When   the   police   officer  asked   me   as   to <\/p>\n
       who was the person, I told  him that I saw Yusuf, appellant, <\/p>\n
       catching fish in a nala near the graveyard.”(Emphasis added)<\/p>\n<\/blockquote>\n
10.      Another star witness Abdul Majid Mallick (PW.4)  stated :\n<\/p>\n
       “I   alongwith   Rezwan   Ali   went   to   the   house   of   Yusuf, <\/p>\n
       appellant.   We   saw   at   the   time   that   Yusuf,   appellant,   was <\/p>\n
       going to his house with a spade and thala.  Yusuf, appellant <\/p>\n
       reported   to   us   that   he   went   to   catch   fish   beside   the   nala. <\/p>\n
       Rasid and Swapan firmly stated that they saw Yusuf,   near <\/p>\n
       the jhinga field.  I again went to the house of Yusuf, and saw <\/p>\n
       he fled away. Therefore, we could not apprehend Yusuf, in <\/p>\n
       our village.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
11.      Abdul   Majid   Mallick   (PW.4),   a   resident   of   the   same   village <\/p>\n
deposed   that   alongwith   other   persons   particularly   Rezwan   Ali,   he <\/p>\n
went to the house of Yusuf, appellant, and saw that he was going to <\/p>\n
                                                                                            9<\/span><\/p>\n
his house with a spade and thala and Yusuf had told them that he had <\/p>\n
gone to catch fish beside the nala.  He stated as under:\n<\/p>\n
       “I do not know as to why Sahanara Khatun was murdered. <\/p>\n
       Swapan Murmu is not a resident of our village.  I cannot say <\/p>\n
       where he is now residing.   Rejowan Ali is an ailing person. <\/p>\n
       Sirajul is now residing in Punjab. I saw Yusuf coming to his <\/p>\n
       house carrying spade and a plate in his hand.   I heard from <\/p>\n
       Rashid and Swapan that they had seen the accused near the <\/p>\n
       place of occurrence.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
12.      Imdad   Ali   (PW.1),   informant   has   deposed   that   Abdul   Rashid <\/p>\n
(PW.5)   and   Swapan   Murmu   (not   examined)   saw   that   Yusuf   was <\/p>\n
talking   with   the   deceased,   Sahanara   Khatun.     Abdul   Rajak   (PW.2), <\/p>\n
father of the deceased had deposed as under:\n<\/p>\n
              “I came to know that Yusuf murdered my daughter …<\/p>\n
       I   cannot   say   what   was   the   reason   for   murder   of   my <\/p>\n
       daughter”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
13.      The persons particularly Rezwan Ali and Sirajul who had told <\/p>\n
these   witnesses   that   they   had   seen   the   appellant-accused   near   the <\/p>\n
jhinga field at the relevant time had not been examined.   More so, it <\/p>\n
has not been   stated by any of the aforesaid witnesses or persons not <\/p>\n
examined   that   Sahanara   Khatun   (deceased)   was   also   seen   there <\/p>\n
alongwith   Yusuf,   appellant.     It   has   not   been   deposed   by   any   of   the <\/p>\n
witnesses that deceased was seen talking with the appellant at all.\n<\/p>\n
                                                                                     10<\/span><\/p>\n
14.     The   last   seen   theory   comes   into   play   where   the   time   gap <\/p>\n
between the point of time when the accused and deceased were last <\/p>\n
seen   alive   and   when   the   deceased   is   found   dead   is   so   small   that <\/p>\n
possibility  of any  person other  than the accused  being the  author of <\/p>\n
the   crime   becomes   impossible.   (Vide:  Mohd.   Azad  alias   Samin  v.\n<\/p>\n
State of West Bengal, (2008) 15 SCC  449; and  State thr.  Central <\/p>\n
Bureau of Investigation v. Mahender Singh Dahiya,<\/a> (2011) 3 SCC <\/p>\n
109).\n<\/p>\n
15.     From the above, it is evident that neither Abdul Majid Mallick <\/p>\n
(PW.4)  nor Abdul Rashid (PW.5) had stated that either of them  had <\/p>\n
seen Sahanara Khatun (deceased) alongwith Yusuf,  near the place of <\/p>\n
occurrence in close proximity of time.  All the witnesses deposed that <\/p>\n
appellant  alone was seen near the place of occurrence with spade   as <\/p>\n
he had gone there for catching the fish.  Thus, there is no evidence to <\/p>\n
the  extent  that  the  deceased  and   appellant   were  seen   together  at   the <\/p>\n
place of occurrence or nearby the same in close proximity of  time.\n<\/p>\n
16.     While   the   appellant-accused   was   examined   by   the   trial   Court <\/p>\n
under Section 313 of Code of Criminal Procedure, 1973 (hereinafter <\/p>\n
called   as   Cr.P.C.),   he   was   asked   the   question   that   during   that   time <\/p>\n
Abdul Rashid  (PW.5)  and Swapan Murmu (not  examined)  had seen <\/p>\n
                                                                                     11<\/span><\/p>\n
him   talking   with   the   deceased.     The   appellant   replied   that   he   was <\/p>\n
innocent.\n<\/p>\n
17.       We   fail   to   understand   as   no   witness   had   deposed   seeing <\/p>\n
Sahanara   Khatun,   deceased   talking   with   the   appellant\/accused,   how <\/p>\n
such a question could be put to the accused.\n<\/p>\n
EXTRA-JUDICIAL CONFESSION:\n<\/p>\n
18.       Nurul Islam (PW.11), maternal uncle of the deceased, resident <\/p>\n
of village Rupsona, is not a witness of incident, rather deposed that he <\/p>\n
was the person who chased and apprehended the appellant after about <\/p>\n
7   days   of   the   incident.   The   relevant   part   of   his   statement   reads   as <\/p>\n
under:\n<\/p>\n
           “After 6-7 days, when I went to Shyamsundar Bazar for <\/p>\n
           my business, I saw Yusuf on the roof of a bus.   He got <\/p>\n
           down from the bus after seeing me.   He told me that he <\/p>\n
           did   the   wrong   and   begged   apology   for   that  and <\/p>\n
           pleaded   not   to   assault   him   but   take   him   to   Jamalpur <\/p>\n
           Police   Station.   I     took   Yusuf   towards   Batrish   Bigha <\/p>\n
           village by boat and when we  crossed the river Damodar, <\/p>\n
           Yusuf   started   running.   I   chased   him   but   failed   to   catch <\/p>\n
           him   and   then   cried   for   help.     Thereafter,   public   caught <\/p>\n
           Yusuf   at   Jamalpur   Poolmatha.    When   we   took   him   to <\/p>\n
           the village, Yusuf admitted to him and others that he <\/p>\n
           murdered Sahanara Khatun and, thereafter, he asked <\/p>\n
           the   persons   to   take   him   to   Jamalpur   Police   Station. <\/p>\n
           Yusuf   told  them  that  he   attempted   to   commit   rape <\/p>\n
           upon   Sahanara   Khatun  and   when   she   resisted,   he <\/p>\n
           assaulted  her with the spade on her head and killed  her <\/p>\n
           and concealed the dead body in the graveyard”.           <\/p><\/blockquote>\n
                                                                         (Emphasis added) <\/p>\n
                                                                                              12<\/span><\/p>\n
            In his cross-examination, PW.11 repeated the same about the <\/p>\n
confession made by Yusuf, appellant before him in presence of other <\/p>\n
persons of the village.\n<\/p>\n
19.      Ali Hossain (PW.13) is a resident of the village of Nurul Islam <\/p>\n
(PW.11) and deposed :\n<\/p>\n
        “……I   went   to   Shyamsundar   Bazar   for   purchasing   goats. <\/p>\n
        At that time, we see the accused on the roof of a bus.  My <\/p>\n
        friend Nurul Islam who was with me asked the accused to <\/p>\n
        come down and he came down from the roof of the bus and <\/p>\n
        requested us not to assault him and to take him at the Police <\/p>\n
        Station   Jamalpur   and   thereafter   Nurul   Islam   took   the <\/p>\n
        accused towards Jamapur Police Station.”<\/p>\n<\/blockquote>\n
 In the cross examination, his deposition is as under:\n<\/p>\n
       “I   did   not   state   to   I.O.   that   after   crossing   the   river   at <\/p>\n
       Karalaghat   the   accused   ran   towards   Jamalpur.     I   did   not <\/p>\n
       chase the accused by crying – catch, catch. I did not state to <\/p>\n
       I.O. that some persons of Jamalpur caught the accused. ….  I <\/p>\n
       alone went to Shyamsundar Bazar.   Thereafter I purchased <\/p>\n
       goats from Shyamsundar Bazar. I cannot say anything more <\/p>\n
       about the occurrence.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
20.      By  comparison of the statements  of Nurul Islam (PW.11) and <\/p>\n
Ali Hossain, (PW.13), it is evident that Nurul Islam (PW.11) did not <\/p>\n
state   anywhere   in   his   statement   in   the   court   that   at   the   time   of <\/p>\n
apprehending the accused, Ali Hossian (PW.13) was also with him.  It <\/p>\n
                                                                                           13<\/span><\/p>\n
is  only  Ali  Hossain  (PW.13)  who  stated  that  his   friend  Nurul  Islam <\/p>\n
(PW.11) was with him.  He further stated that it was Nurul Islam who <\/p>\n
asked   the   accused   to   come   down   from   the   roof   of   the   bus   and   the <\/p>\n
accused   came   down.     The   statement   of     Nurul   Islam   (PW.11)   is <\/p>\n
otherwise that he saw Yusuf, appellant, on the roof of the bus. Yusuf, <\/p>\n
appellant, got down from the bus after seeing him and told him that he <\/p>\n
did the wrong and begged apology for that.  Ali Hossain (PW.13) did <\/p>\n
not speak anywhere regarding any confession, though stated that the <\/p>\n
accused   requested   them   not   to   assault,   rather   to   take   him   to   police <\/p>\n
station.       The   material   contradictions   are   there   in   respect   of   the <\/p>\n
manner   in   which   the   appellant   had   been   apprehended.     Ali   Hossain <\/p>\n
(PW.13) did not state that appellant made an attempt to runaway after <\/p>\n
making the said witness.\n<\/p>\n
21.     Digambar   Mondal   (PW.19),   the   Investigating   Officer   has <\/p>\n
deposed   that   he   had   noticed   the   marks   of   injury   on   the   cheek, <\/p>\n
forehead and head of the deceased. The wearing apparels of the victim <\/p>\n
were   not   soaked   with   blood.   He   only   sent   the   wearing   pant   of   the <\/p>\n
victim for chemical examination. He seized spade but did not sent it <\/p>\n
for chemical analysis. In his cross-examination he has stated as under:\n<\/p>\n
              “The   witness   Nurul   Islam   stated   to   me   that   the <\/p>\n
       accused   was   caught   by   some   persons   at   Jamalpur   Pool-<\/p>\n
                                                                                     14<\/span><\/p>\n
       matha   and   thereafter   police   came   and   at   that   time   the <\/p>\n
       accused   stated  before   those   persons   and   police  that   he <\/p>\n
       tried to commit rape Sahanara on 31.8.1998 and when she <\/p>\n
       resisted the accused hit her with a spade and thereafter  hid <\/p>\n
       her body in the court-yard by digging some earth there”. <\/p>\n<\/blockquote>\n
                                                                          (Emphasis added) <\/p>\n<\/blockquote>\n
22.     Both,   Nurul   Islam   (PW.11)   and   Ali   Hossain   (PW.13)     are <\/p>\n
chance witnesses as they alleged to be in Shyamsundar Bazar on that <\/p>\n
date   for   marketing   and   none   of   them   had   regular   business   in   that <\/p>\n
bazar.   The Court while dealing with a circumstance of extra-judicial <\/p>\n
confession must keep in mind that it is a very weak type of evidence <\/p>\n
and require appreciation with great caution.\n<\/p>\n
              Extra-judicial confession must be established to be true and <\/p>\n
made voluntarily and in a fit state of mind.  The words of the witness <\/p>\n
must   be   clear,   unambiguous   and   clearly   convey   that   accused   is   the <\/p>\n
perpetrator   of   the   crime.     The   “extra-judicial   confession   can   be <\/p>\n
accepted and can be the basis of a conviction if it passes the test of <\/p>\n
credibility”.  (See:  State   of  Rajasthan   v.  Raja  Ram,<\/a>  (2003)  8  SCC <\/p>\n
180;   and  Kulvinder   Singh   &   Anr.   v.   State   of   Haryana,<\/a>   (2011)   5 <\/p>\n
SCC 258).\n<\/p>\n
23.     Nurul Islam (PW.11) who is maternal uncle of the deceased had <\/p>\n
deposed   about   extra-judicial   confession   made   by   the   accused   in <\/p>\n
presence of  others,  though he was not able to explain who were the <\/p>\n
                                                                                               15<\/span><\/p>\n
other  persons as  no  other  person  has  been  examined   in this  respect.\n<\/p>\n
Digambar   Mondal   (PW.19)   had   deposed   that   Nurul   Islam   (PW.11) <\/p>\n
had told him about the confession by the accused in presence of other <\/p>\n
persons and police personnel. The accused had told him also that dead <\/p>\n
body was buried in the courtyard.  Thus, the theory of extra-judicial <\/p>\n
confession   revealed   by   Nurul   Islam   (PW.11)   does   not   get <\/p>\n
corroboration from the statement of Ali Hossain (PW.13) or any other <\/p>\n
independent witness or police personnel. Nor the body of the deceased <\/p>\n
was   recovered   from   the  courtyard.   While   considering   the   material <\/p>\n
contradictions   in   the   statement   of   Nurul   Islam   (PW.11)   and   Ali <\/p>\n
Hossain (PW.13), we do not consider that it would be safe to accept <\/p>\n
his version in this respect.\n<\/p>\n
24.      Dr. Samudra Chakraborty (PW.18), who conducted the autopsy <\/p>\n
on the body of Sahanara Khatun found the following injuries:\n<\/p>\n
       i)      One incised wound 4″ x 0.2″ x scalp deep over middle <\/p>\n
               3rd  of   left   parietal   region   (vault   of   the   scalp)   cutting <\/p>\n
               through   the   skin,   pussa,   muscle,   vessel   and   nerve   and <\/p>\n
               being placed 1.2″ left on mid-line of the body;<\/p>\n<\/blockquote>\n
       ii)     Bruises over 1″ x 0.6″ x over left side of forehead and <\/p>\n
               being placed 0.5″ left of mid-line of the body;<\/p>\n
                                                                                    16<\/span><\/p>\n<\/blockquote>\n
                 iii)      One lacerated wound 0.6″ x 0.4″ muscle and bone deep <\/p>\n
                           over left molar region with extra-vesation of blood and <\/p>\n
                           blood-clot in around the wound;\n<\/p><\/blockquote>\n
<\/blockquote>\n
                 iv)       Haema toma (red) 3.2″ x 1.5″ in area over left temporal <\/p>\n
                           parietal region;\n<\/p><\/blockquote>\n
<\/blockquote>\n
                 v)        Subdural haemorrhage of both sides of tempero parietal <\/p>\n
                           region of the brain.\n<\/p><\/blockquote>\n
\n
                         In   the   opinion   of   the   doctor,   death   was   due   to   combine <\/p>\n
      effect of injuries and suffocation. The incised wound could be caused <\/p>\n
      by   a   hit   of   sharp   edge   of   the   spade.   The   haema   toma   on   the   victim <\/p>\n
      could be caused by a hit of  heavy blunt weapon.  This witness did not <\/p>\n
      speak of any sign of sexual assault on the deceased  before or after her <\/p>\n
      death.\n<\/p><\/blockquote>\n
\n
      ABSCONDANCE:<\/p><\/blockquote>\n
      25.     Both   the   courts   below   have   considered   the   circumstance   of <\/p>\n
      abscondance of the appellant as a circumstance on the basis of which <\/p>\n
      an adverse inference could be drawn against him. It is a settled legal <\/p>\n
      proposition   that   in   case   a   person   is   absconding   after   commission   of <\/p>\n
      offence of which he may not even be the author, such a circumstance <\/p>\n
      alone may not be enough to draw an adverse inference against him as it <\/p>\n
      would go against the doctrine of innocence.  It is quite possible that he <\/p>\n
      may   be   running   away   merely   being   suspected,   out   of   fear   of   police <\/p>\n
                                                                                               17<\/span><\/p>\n
arrest   and   harassment.     (Vide:  Matru   @   Girish   Chandra   v.     The <\/p>\n
State   of   U.P.,   AIR   1971   SC   1050;  Paramjeet   Singh  @   Pamma  v.\n<\/p>\n
State of Uttarakhand  AIR 2011 SC 200; and  Rabindra Kumar Pal <\/p>\n
@ Dara Singh v. Republic of India,<\/a> (2011) 2 SCC 490)<\/p>\n
               Thus,   in   view   of   the   law   referred   to   hereinabove,   mere <\/p>\n
abscondance of the appellant cannot be taken as a circumstance which <\/p>\n
give rise to draw an adverse inference against him.\n<\/p>\n
26.    CIRCUMSTANTIAL EVIDENCE:\n<\/p>\n
               Undoubtedly,   conviction   can   be   based   solely   on <\/p>\n
circumstantial  evidence. However, the court must bear in mind while <\/p>\n
deciding  the  case  involving   the  commission   of serious   offence   based <\/p>\n
on circumstantial evidence that the prosecution case must stand or fall <\/p>\n
on its own legs and cannot derive any strength from the weakness of <\/p>\n
the   defence   case.     The   circumstances   from   which   the   conclusion   of <\/p>\n
guilt is to be drawn should be fully established. The facts so established <\/p>\n
should   be   consistent   only   with   the   hypothesis   of   the   guilt   of   the <\/p>\n
accused   and   they   should   not   be   explainable   on   any   other   hypothesis <\/p>\n
except   that   the   accused   is   guilty.   The   circumstances   should   be   of   a <\/p>\n
                                                                                     18<\/span><\/p>\n
conclusive nature and tendency. There must be a chain of evidence so <\/p>\n
complete   as   not   to   leave   any   reasonable   ground   for   the   conclusion <\/p>\n
consistent with the innocence of the accused and must show that in all <\/p>\n
human probability the act must have been done by the accused. (Vide:\n<\/p>\n
Sharad Birdhichand Sarda  v.  State of Maharashtra, AIR<\/a> 1984 SC <\/p>\n
1622,  Krishnan  v.  State represented by Inspector of Police, (2008) <\/p>\n
15 SCC 430; and  Wakkar & Anr. v. State of Uttar Pradesh, (2011) <\/p>\n
3 SCC 306).\n<\/p>\n
27.         No   presumption   could   be   drawn   on   the   issue   of   last   seen <\/p>\n
together     merely   on   the   fact   that   Abdul   Rajak   (PW.2),   father   of   the <\/p>\n
deceased had stated that Sahanara Khatun had gone to pluck the jhinga <\/p>\n
and her dead body was recovered from there. The witnesses     merely <\/p>\n
stated that the accused was present in the close proximity of that area.\n<\/p>\n
That does not itself establish the last seen theory because none of the <\/p>\n
witnesses said that the accused and deceased were seen together.  Most <\/p>\n
of the witnesses had deposed that   the accused was having spade.   It <\/p>\n
may connect the appellant to the factum of digging the earth. A person <\/p>\n
going for catching fish normally does not take a spade with him.\n<\/p>\n
        The nature of the admissibility of the facts discovered pursuant <\/p>\n
to  the   statement   of  the   accused   under   Section   27   of  Indian   Evidence <\/p>\n
                                                                                      19<\/span><\/p>\n
Act, 1872 is very limited. If an accused deposes to the police officer <\/p>\n
the   fact   as   a   result   of   which   the   weapon   with   which   the   crime   is <\/p>\n
committed is discovered, and as a result of such disclosure, recovery of <\/p>\n
the weapon is made, no inference can be drawn against the accused, if <\/p>\n
there is no evidence connecting the weapon with the crime alleged to <\/p>\n
have been committed by the accused.\n<\/p>\n
        Be   that   as   it   may,   the   spade   had   not   been   sent   for   chemical <\/p>\n
analysis as  admitted by Digambar Mondal (PW.19), I.O. himself and <\/p>\n
there was no explanation furnished as for what reason it was not sent.\n<\/p>\n
In   case   of   circumstantial   evidence,   not   sending   the   weapon   used   in <\/p>\n
crime   for   chemical   analysis   is   fatal   for   the   reason   that   the <\/p>\n
circumstantial evidence may not lead to the only irresistible conclusion <\/p>\n
that the appellant was the perpetrator  of the crime and none else and <\/p>\n
that   in   the   absence   of   any   report   of   Serologist   as   to   the   presence   of <\/p>\n
human blood on the weapon may make the conviction of the accused <\/p>\n
unsustainable. (Vide:  Akhilesh Hajam v. State of Bihar<\/a>  (1995) Supp <\/p>\n
3 SCC 357).\n<\/p>\n
        There is no medical evidence or suggestion by any person as to <\/p>\n
the sexual assault on the deceased. Therefore, it merely remained the <\/p>\n
guesswork   of   the   people   at   large.   Mere   imagination   that   such   thing <\/p>\n
might have happened is not enough to record conviction.\n<\/p>\n
                                                                                           20<\/span><\/p>\n
28.     This incident had occurred in a broad day light at 9.30 a.m. in <\/p>\n
the month of August in the agricultural field surrounded by agricultural <\/p>\n
field of others. Therefore,  the presence of a large number of persons in <\/p>\n
the close vicinity of the place of occurrence can be presumed and it is <\/p>\n
apparent also from the statement of Aliful Rahmal (PW.6). Thus,  had <\/p>\n
the deceased been with the appellant, somebody could have seen her at <\/p>\n
the place of occurrence. It cannot be a positive evidence as concluded <\/p>\n
by  the  courts  below that  none other   than  the  appellant  could  commit <\/p>\n
her   murder   because   no   one   else   had   been   there   at   the   place   of <\/p>\n
occurrence. In fact, nobody had ever seen the deceased at the place of <\/p>\n
occurrence.   Digging   the  earth   by   a   single   person   to   the   extent  that   a <\/p>\n
dead body be covered by earth requires a considerable time and there <\/p>\n
was a possibility that during such period somebody could have seen the <\/p>\n
person indulged in any of these activities, though no evidence is there <\/p>\n
to that extent.  The circumstances from which the conclusion of guilt is <\/p>\n
to   be   drawn   in   such   a   case   should   be   fully   established.   The <\/p>\n
circumstances   concerned   “must   or   should”   and   “not   and   may   be”\n<\/p>\n
established.   In   the   instant   case,   the   circumstances   have   not   been <\/p>\n
established.\n<\/p>\n
                                                                                       21<\/span><\/p>\n
29.      In view of the above, we are of the considered opinion that the <\/p>\n
courts below convicted the appellant on a mere superfluous approach <\/p>\n
without in depth analysis of the relevant facts.\n<\/p>\n
30.      In the facts and circumstances of the case, the appeal succeeds <\/p>\n
and is allowed. The appellant is given benefit of doubt and acquitted of <\/p>\n
the   charges   of   offences   punishable   under   Sections   302   and   201   IPC.\n<\/p>\n
Appellant   is  in  jail.    He  be   released  forthwith  unless  his   detention   is <\/p>\n
required in any other case.\n<\/p>\n
                                                                ………………………………J.\n<\/p>\n
                                                      (Dr. B.S. CHAUHAN)<\/p>\n
                                                              ……………………………….\n<\/p>\n
 J.\n<\/p>\n
                                                      (SWATANTER KUMAR) <\/p>\n
 New Delhi,              <\/p>\n
 June 14, 2011               <\/p>\n
                                                                                                22<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sk. Yusuf vs State Of West Bengal on 14 June, 2011 Author: . B Chauhan Bench: B.S. Chauhan, Swatanter Kumar REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 831 of 2007 SK. Yusuf …Appellant Versus State of West Bengal …Respondent J U D G M E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-166206","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSk. Yusuf vs State Of West Bengal on 14 June, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sk-yusuf-vs-state-of-west-bengal-on-14-june-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sk. 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