LexMOHD. AZAD @ SAMIN versus STATE OF WEST BENGAL
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------..!. [2008] 15 S.C.R. 468 I \;- A MOHD. AZAD @ SAMIN ...... v. r-- ' STATE OF WEST BENGAL (Criminal Appeal No. 1729 of 2008 etc.) B NOVEMBER 5, 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] i. Penal Code, 1860 - ss. 302 and 201 rlw s. 34 - Death -! , caused by two persons - Circumstantial evidence - c Confession of one of the accused - Deceased last seen together with the accused - Recovery of articles at the instance of one of the accused - Conviction by courts below 1?Jll - On appeal, held: Conviction justified - Prosecution case proved - Confessional statement reliable as made in strict D compliance of s. 164 (2) Cr.P.C. and was made voluntarily. Evidence - Circumstantial evidence - Reliance on - r Held: Conviction can be based on such evidence - Condition precedent for reliance before conviction, discussed. ) E Appellants-accused were charged for having caused death of one person. According to prosecution, the ! appellants and the deceased purchased wine from a shop nearby and thereafter they entered into the cemetery after scaling the wall. The case was based on F circumstantial evidence .. Initially case was registered ''!--.. ~ I against unknown persons on the basis of information I- from the Secretary of the Christian Cemetery where the - dead body of the deceased was found by him and the gardener of the cemetery on the information of a boy. The G accused persons were arrested after investigation by the Detective Department. Some articles were recovered at the instance of accused 'N'. Accused 'A' made confessional statement. During trial 34 witnesses were -.I examined who deposed having last seen the accused H 468 -,,. i,o.1 . \ ,,.. MOHD. AZAD@ SAMIN v. STATE OF WEST BENGAL 469 \... and the deceased together and presence of the accused A at the scene of occurrence and about recovery from the accused. Trial court convicted the accused u/s. 302 and 201 r/w. s. 34 IPC. High Court confirmed the conviction. Hence the present appeals. Dismissing the appeals, the Court B HELD: 1.1. If the factual scenario is considered in the background of principles relating to circumstantial evidence and extra judicial confession, the appeals are without merit. According to the prosecution version on c the night of 6.2.1994, the appellants and the deceased purchased wine from a shop nearby and thereafter they entered into the cemetery not from the usual gate but after scaling the wall. The identification of the accused by the workers af the cemetery has also been established D by cogent evidence. In the Test Identification Parade, 1 some of the workers identified appellant 'N' as the man I ~ who went to fetch water. Therefore, the prosecution version in that regard is cogent. The salesman of the wine shop (PW-18) spoke about appellant 'N'. PW-10 one of the workers spoke about the demand by one of the accused E persons for water. To the similar effect is the evidence of PW-12 who spoke about the supply of drinking water. The doctor categorically stated that the stomach ..l. contained 10 gms of fluid with strong smell of alcohol. [Paras 6, 7 and 23] [478-E-H; 479-A-C; 487-E, F] F 1.2. The doctor PW-29 in his opinion before the Investigating Officer on 9.3.1996 affirmed his view that death might have taken place 4/5 days prior to the post mortem examination of the dead body. From the First Information Report as well as the statement of Secretary G of the cemetery who lodged the FIR it is clear that neither );" he nor any of the staff of the cemetery had noticed the dead body but only a child found a dead body and informed one of the staff of the cemetery who in turn informed the informant. It is on record that the child was H 470 SUPREME COURT REPORTS [2008] 15 S.C.R. A in the cemetery for the purpose of flying kite and for playing in the open field and that is how he was moving hither and thither and noticed the dead body was lying in a corner which was a long area. That being so, the plea that the body could have been unnoticed by the B appellants is unacceptable. [Para 5] [477-G, H; 478-A, B] 1.3. The date of occurrence was in the early part of February and the dead body was discovered with full wearing apparels including winter garments, shoes and so.cks. The dead body was lying in half dug manner and C a cement slab was placed on the face of the dead body. According to the High Court, that being the situ
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