LexJOYDEEP NEOGI @ BUBAI versus STATE OF WEST BENGAL
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... [2009] 8 S.C.R. 291 ..,. JOYDEEP NEOGI @ BUBAI A v. STATE OF WEST BENGAL (Criminal Appeal No. 1285 of 2006) MAY 8, 2009 B [DR. ARIJIT PASAYAT AND ASOK KUMAR " GANGULY, JJ.] ' Penal Gode, 1860: s. 302 - Murder - Missing boy seen last at a particular place - Accused persons also seen there c the whole day - Recovery of dead body of boy - Conviction based on cirqumstantial evidence - (;hal/enged by A 1 and A2 - Held: Presence of accused for whole day in a specific ~ place and misleading prosecution witnesses to search in other place and not allowing them to search at a particular D place destroys the presumption of innocence - Unnatural, abnormal or unusual behaviour of the accused after the offence relevant circumstan<;e against them - Circumstances establishing accusations so far as A-1 is concerned - His conviction is upheld - But circumstances not sufficient to E fasten guilt Of! A-2 - His conviction is set aside - Evidence - \ Circumstantial evidence. I Evidence: Conduct which destroys the presumption of innocence can be considered as relevant and material - Unusual and abnormal conduct on part of accused create F adverse presumption ag§Jinst them. Prosecution case was that on 6.11.2001, son of PW- 1 was playing in the playground. He did not return home ~· after usual hour and his mother started searching for him. G ~ At 1.30 P.M., a telephone call was received by mother of deceased regarding the wrongful detention of deceased. When PW-1 returned home, he also made search for his son but without any result and ultimately he lodged 291 H 292 SUPREME COURT REPORTS [2009] 8 S.C.R. A complaint. The appellants were detained for few hours in connection with the case on the basis of written complaint of PW-1 but later released. On 16.11.2001, dead body of deceased was recovered on the information given by the accused persons. The trial B Court convicted the accused person except A-4 and th~ appellants. High Court upheld the finding of guilt, however modified the order of conviction of appellants under ss.363, 364, 302, 201, r.w. s.34 IPC. A-1 and A-2 filed these appeals. c Allowing the appeal of A-2 and dismissing the appeal of A-1, the Court HELD: 1. From the evidence it is clear that on 6.11.2001, the deceased was last seen in the Uttararmath. D At that time, four accused were also seen there and upon questioning by the witnesses they gave false explanations and misled the witnesses so that they did not go to the western side of the area. This unusual and abnormal conduct on the part of the accused, no doubt E created an adverse presumption against them. P.W.1 went out to search his son in the said math along with other local people and his brother. At that time, they also found the four accused persons in that place. Part of his evidence is corroborated by the evidence of his brother F P.W.7 who st;ited that at about 2.15 P.M. his brother PW- 1 returned home from his office, they narrated the incident to him and then he along with his brother and some other people went to search for the child in the ponds near the Uttararmath and when they were about G to enter the Math area, accused came towards them and asked P.W.7 as to where they were going, to which P.W.7 replied that they were searching for son of PW-1 in the pond. The accused stated that they searched for the child in those ponds but he was not there and after hearing the same, they came back to their house. This was H • ' JOYDEEP NEOG! @ BUBAI v. STATE OF WEST 293 BENGAL ..... corroborated by PW-1, PW-4 and PW-7. [Paras 7 and 8) A [296-G-H; 297 -A-F] 2. From the evidence of P.W.5 it appears that in the rne,.,n ~ime on the same day i.e. on 6.11.2001 at about 1/ 1.30 P.M. there was a telephone call in male voice to his B house and he was asked to call some one from the house of PW-1. This call was attended by P.W.3. From her . ., evidence it appears, while she attended the telephone call I one male person in low voice said that deceased was with them and asked her not to search for him or inform the c police and when she enquired who was speaking and from where, the voice on the telephone stopped. According to PW3, she narrated t~e incident before her husband PW 7, PW4, PW11 and many other persons. All ·~ these PWs. corroborated this part of evidence of PW 3. D [Paras 10) [299-A-D] 3. From the evidence of PW1, PW 2, PW 3, PW 4, PW7, It is clear that
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