TaxTMI 
TaxTMI 
2000 (8) TMI 1095
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....tion entered against them. Narration of material facts of this case, in a brief manner, is necessary before considering the contentions raised. The victim of the offence was one Mahesh Kumar Aggarwal ('Mahesh' for short). He was doing some small business at Bow Bazar area (Calcutta). He was a bachelor aged 29 and he was residing with his sister Anushila Devi (PW-9) in an apartment situated on the Westen Street which was re-christened as Banbuk Gali. First accused Mir Mohammad @ Omar and 7th accused Sajid Ali were friends and associates in many activities indulged in at Bow Bazar area and the other accused were all the henchmen of Omar. Sajid Ali (7th accused) wanted Mahesh to part with a sum of Rs. 50,000/-, almost as a ransom, for allowing him to deal with his business unobstructed. But the deceased did not capitulate to the demand and such refusal led to a dig between the two. It seems Mahesh scored an upper hand in the dig. The above episode happened about 10-12 days before the death of Mahesh. The night of 4.11.1984 became horrendously eventful for Mahesh. The events started with the gate-crashing made by some assailants led by A-7 Sajid Ali, into the apartment of Anushil....
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....laint. On the next morning PW-9 Anushila Devi (sister of Mahesh) told her nephew Pawan Kumar(PW-29) about the abduction of Mahesh. Sometime later, Pawan Kumar learned that his uncle Mahesh was admitted in Islamia Hospital. So he rushed to that hospital and made inquiries and came across the mangled body of his uncle lying in the hospital with his head tonsured. PW-3 (Dr. Debabrata Chaudhary) a Reader in Forensic Medicine conducted post-mortem examination on the dead body of Mahesh and expressed his opinion that Mahesh was murdered. Subsequently, all the accused were arrested at different times. Some articles were recovered on the strength of the statements elicited from the accused. After conclusion of the investigation final report was laid against the seven accused. The case as against the 7th accused Sajid Ali was split up due to some reasons and hence the trial proceeded as against the remaining accused. There is abundant evidence for showing that Mahesh was abducted by the accused on the night in question. It is unnecessary to dwell upon that aspect in this appeal, particularly since the trial court and the High Court have held that issue in unison and since no serious atte....
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....art of the evidence can be tested from different angles. First is, even in the FIR PW-5 had quoted those words as spoken to by A-1. It must be noted that when FIR was given PW-5 had no reason to believe that Mahesh was not alive. If Mahesh had come back alive it is doubtful whether police would have seriously followed up the FIR. Next is, the temper which the assailants exhibited in the house of the deceased's sister (when she was the sole inmate present therein), is broadly indicative of the truculence of the intruders that they went there with some definite purpose. Mahesh was once caught by them on that night itself by PW-4 and then he was badly handled by them. If their intention was only to inflict some blows on the victim they would have stopped with what they did to him at that stage. But when Mahesh struggled and extricated himself from their clutches and escaped to another place at Giri Babu Lane these accused did not stop and they persisted in prowling for their prey and succeeded in tracing him out from that different area and hauled him out violently. Such repeated chase for Mahesh could, in all probabilities, be for his blood. Thus, all the broad features of this ca....
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....e deceased. On the other side, there is overwhelming evidence to show that the autopsy conducted on the dead body by PW-30 was that of Mahesh. We find little scope even to doubt the possibility of some other dead body being mistakenly treated as that of the deceased while conducting the post- mortem examination. PW-9 (Anushila Devi) sister of Mahesh, said that she saw the dead body of Mahesh before it was cremated and she had absolutely no doubt that it was her brother's. PW-29 (Pawan Kumar Agarwal) a nephew of Mahesh went to Islamia Hospital and it was he who first identified the dead body of his uncle. PW-4 (Abdul Aziz), PW-5 (Mohd. Sayeed), PW.6 (Mohd. Idris) and PW-11 (Mohd. Afjal) saw the same dead body and they had no doubt at all that it was that of Mahesh. The post-mortem report made by PW-30 (Dr. Debabrata Choudhury) shows that the victim was murdered. He noticed as many as 45 injuries on the dead body which included fracture of 5 ribs (2 to 6 ) on he left side towards sternal end, fracture of some of he fingers and extravasaion of blood on he night side of occipital region and also on he situs of the rib fractures. The remaining injuries included a few lacerated wou....
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....ied the dead body of Mahesh to Islamia Hospital and then abandoned it at the Emergency Department." The High Court unfortunately did not deal with this aspect at all. Learned judges made scathing criticism on the flaws incurred in the investigation and without any reference to the evidence confirmed the conviction passed by the trial court. Before we consider the said crucial aspect we have to point out another important circumstance. Sri K.T.S. Tulsi, learned counsel who argued for the State highlighted the said circumstance that when A-1 Omar was interrogated by the Investigating Officer(PW-34) on 12.11.1986 he told the officer that "I have kept it (a full sleeve bush shirt) underneath the mattress on the ground in my club room". Pursuant to the said statement the shirt was recovered therefrom. It is marked as Ext.XV in this case. It is now in a torn condition. The statement attributed to A.1 Omar, and extracted above would fall within the purview of Section 27 of the Evidence Act. If it is believable, it would show that the said shirt was concealed by the said accused. We do not find any reason to disbelieve the evidence of the investigating officer regarding recovery of E....
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....cution has failed to establish the charge of murder against the accused persons beyond any reasonable doubt." The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. In this case, when prosecution succeeded in establishing the afore narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. Whe....
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....t drive the court to draw a different inference. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra vs. The State of Ajmer (1956 SCR 199) the learned Judge has stated the legal principle thus: "This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge." In the present case, the facts which prosecution proved including the proclaimed intention of the accused, when considered in the light of the proximity of time within which the victim sustain....