Bench: Justice Soumen Sen and Justice Arjit Banerjee
Facts:
- Sajida Khan is the wife of the deceased Feroz Khan. Silash Singh is claimed to be the paramour of Sajida Khan.
- Decomposed body of Feroz Khan was discovered in a gunny bag. Subsequently during investigationit was alleged that the accused persons caused the murder of Feroz Khan and dumped the body in the sea.
- Sajida Khan was having extra-marital relationships withthe accused Silash Singh and Feroz Khan having come to know of such illicit relationship raised objections for which Sajida Khan and other accused persons committed murder of Feroz Khan and placed his dead body in a gunny bag along with a heavy stone and then threw it in the sea water with a view to cause disappearance of the dead body.
- Kurban Ali who was a childhood friend of Feroz has stated that Sajida along with her son arrived at his place. Sajida started weeping and confessed her crime. She requested Kurban to take care of the child. Kurban reported the matter to police.
- Sajida and Silash were called to police station for interrogation following the statement made by Kurban to the concerned Police Officer .Both the accused persons were ultimately taken to custody on the same date in the afternoon.
- They were interrogated separately and both of them stated that Ferdeen (Son of the deceased and accused Sajida) was present when Silash killed Feroz.
- The child witness has also independently stated that his father was murdered by Silash in his presence.
- Silash also made a statement as recorded under Section 27 of the Indian Evidence Act that he killed Feroz with a dao and after reaching the house of Sajida he cleaned the dao nicely with surf and kept it in her house.
- Prior to the said statement Sajida in her extra judicial confession had admitted that Feroz was killed with a dao and she could show the place where Feroz was murdered by them and the weapon of offence.
Issue:
Whether conviction based on circumstantial evidence can be upheld and Whether the evidence to support the conviction are sufficient
Background:
The Trial Court on the examination of the evidence and materials on record held that the circumstantial evidence surrounding the commission of the offence clearly connected the accused persons with the offence and it further ordered conviction under offence punishable under 302/201/120-B of Indian Penal Code. Hence, appeal was filed in Calcutta High Court against the order of conviction.
Judgement:
High court while explaining the scope of Section 27 of the Evidence Act held that where no eye witness is available in a murder case and the case is based on circumstantial evidence, recovery of weapon and evidence on the basis of disclosure of the accused alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, the burden lies on the prosecution to establish close link between discovery of the material objects and its use in the commission of the offence and what is admissible under section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.
The court stated that in the present case on the basis of information furnished by Sajida it led to the discovery of the weapon. This in itself is not sufficient to arrive at a conclusion that she has committed or participated in the murder. However, the court highlighted the fact the conviction of Sajida is not solely based on the recovery of the weapon but on other direct and circumstantial evidence discussed earlier.
It was stated that the child in his statement has categorically stated that he has seen the accused persons to inflict blow on his father with dao which has caused the death of his father. There is no presumption that child will not speak the truth. The court without any doubt and hesitation stated that he has spoken the truth. The court also discussed other evidences which wholly corroborate the child testimony.
The court dismissed the appeal and confirmed the sentence passed by trial Judge.
