Papan Sarkar @ Pranab vs State of West Bengal

Held: What assumes significance in placing reliance on the last seen together theory is the gap between the time the accused and the deceased were seen together and the death having occurred – The proximity of the death having occurred within a short time after the accused and the deceased were seen together is most relevant, for the said fact to be taken as an incriminating circumstance against the accused – When the time gap is large then there could be intervening circumstances, which snaps the link and prevents an adverse inference against the accused merely for the reason that the accused does not put forth an explanation as to when he parted company with the deceased – In the present case, the time frame being quite large to term death as proximate, there can be no conviction based on the last seen together theory – Further, the exculpatory statement made by an accused absolving himself and accusing the co-accused, by its very nature is unreliable – It cannot be put against the other accused, for no cross examination being provided to them, of the one who made that statement – It cannot also incriminate the person who made the statement since there is no element of confession in the recital as spoken of by three witnesses, as against one – Extra-judicial confession by its very nature being a weak piece of evidence has not at all been proved in the present case – In any event, the statement is made when the two accused were detained by a mob, on the accusation of murder – Obviously, there is considerable pressure put on the detained persons, who could have spoken, on undue duress or under threat of violence – In fact, the records indicate that after arrest, when A1&2 were taken for medical examination, they had injuries on their body, which again cuts at the root of credibility of the statement made; which anyway has doubtful standing as a confession – Also, the recoveries are of no avail and do not form a clinching incriminating circumstance against the accused – Furthermore, the absence of motive, especially when the murder was brutal, is yet another aspect raising a reasonable doubt – In the totality of the circumstances, each having been examined, none of those projected having qualified as incriminating, links the accused to the murder – Order of conviction by the Trial Court and affirmed by the High Court, reversed. [Paras 6, 7, 10, 11, 17, 18] Circumstantial Evidence – Evidence Act, 1872 – s.27 – Recoveries made, when do not qualify to be one u/s.27 – Recoveries, when do not form clinching incriminating circumstance – Recoveries made allegedly with the aid of the accused- the dead body was found in a field, an open space with free access to anybody; stone and glass piece are said to have been recovered from the place of occurrence itself, albeit with the aid of the accused:

Held: There are serious doubts about the recoveries having the status of a recovery u/s.27, Evidence Act, but it is assumed to be so – A stone, weighing 1-1.5 kg and a glass piece were said to have been recovered, on the showing of the accused, specifically A1 and A2 – The seizure list as seen from the records does not indicate the specific place from which it was recovered other than stating that it is ‘from the PO at the paddy land of JR’ – The State argued that though the paddy field had free access, it was thick with stalks and there could definitely be a concealment; the growth not borne out from the evidence – Though, it is not doubted that there could be concealment even in a public place or in a field with thick vegetation, but there is no statement recorded from the accused as to such a concealment having been effected and then the police having been led to the location and the material object recovered from the place of concealment – Recital in the seizure list is only that ‘on being shown and certified by accused

1 and 2’ – Concealment and its knowledge, revealed from the statement of the accused, is the crucial ingredient of s.27 which can lead to that being used in a criminal trial, any other confession to a police officer being excluded as self-incriminating – Moreover, recovery has no clarity and more importantly the accused pointing out the concealed objects or even their presence at the time was not deposed to by PW5 – There was no statement taken of the accused of a concealment and the recoveries made do not qualify to be one u/s.27 – The stains on the stone found at the place of occurrence and the serology report of it being human blood, hence, is of no consequence – More pertinently, the alleged weapons of assault were not shown to the Doctor to elicit his opinion as to whether the said objects could have caused the injuries found on the dead body – The recoveries are of no avail and do not form a clinching incriminating circumstance against the accused – The discrepancy noticed insofar as the recovery of the alleged weapons of assault, equally applies in the case of the seizure of the motorcycle also – Also, the motorcycle though handed over to PW1 on challan, the same was not produced before Court nor was its registration details proffered to indicate that it belongs to the deceased or PW1, as is the version of PW1 – PW1 was also not asked about the recovery of the motorcycle and handing over by the police. [Paras 12, 14-16]