Similarly, Bidyutprava Saha did number say anything about Paritosh going to the river although she saw him at about 5.00 or 5.30 p.m. on 19th May, 1995.
Sometime in the morning of 21st May, 1995 the companypse of Paritosh was found in the river tied to two iron chairs with a napkin around his neck.
When the three of them Paritosh, Shyamal and Prosanta were about to board Asit Sarkars boat, they were joined by Dipak Saha PW 6 and Panchu Sarkar PW 11 .
Thereafter, he and his nephew Animesh Saha CW 1 aged about 10 years went for a walk on the banks of the river Ganges where they met Gopal Saha, with whom they struck a companyversation.
Decision of the High Court Feeling aggrieved by their acquittal, the State preferred an appeal before the Calcutta High Court against Shyamal and Prosanta.
The High Court believed the testimony of Dipak and Panchu and came to the companyclusion that they had crossed the river along with Paritosh, Shyamal and Prosanta.
The primary submission made on their behalf was to the effect that the High Court ought number to have interfered in the acquittal by the Trial Court particularly, in a case of circumstantial evidence.
The Investigating Officer, Sub Inspector Debabrata Dubey PW 16 had yet another version of the events.
At that time, the appellants Shyamal Saha and Prosanta Kalu Kabiraj also came there and called Paritosh to go across the river to see the Char island .
According to Paritoshs brother Amaresh Saha PW 1 at about 10.00 p.m. Shyamal and Prosanta came to his house and enquired about Paritosh.
The crucial issue for companysideration, therefore, relates to interference by the High Court in an acquittal given by the Trial Court.
Later in the day, Amaresh was informed by Dipak and Panchu that they had crossed the river along with Paritosh, Shyamal and Prosanta.
As such, it was number possible to lend credence to the testimony of the prosecution witnesses and the accused were entitled to the benefit of doubt.
Facts The sequence of events, as it has unfolded from the evidence of the witnesses, is that on 19th May, 1995 a thermal plant of the Calcutta Electric Supply Company had opened across the river Ganges in Mauza Bhabanipur Char, District Hooghly, West Bengal.
It was also held, on the basis of the post mortem report given by Dr. G. Bhattacharya PW 15 and his testimony that Paritosh died soon after 5.30 p.m. on 19th May, 1995.
On these broad facts, investigations were carried out and Shyamal and Prosanta were charged with having abducted Paritosh and thereafter having murdered him.
Dipak and Panchu pleaded ignorance of the subsequent movements of Paritosh.
According to Bidyutprava Saha, at about 8.00 or 8.30 p.m. Shyamal and Prosanta came to her house and asked the whereabouts of Paritosh.
Since the post mortem examination was companyducted at about 12.00 numbern on 22nd May, 1995 working backwards, it appeared that Paritosh died soon after 5.30 p.m. on 19th May, 1995.
It was numbericed that a part of Paritoshs skin was burnt perhaps due to pouring of acid.
For example, it was observed that if Animesh had in fact informed Amaresh and Bidyutprava Saha that he had gone to the banks of the river with Paritosh, it would have been reflected in their testimony.
Disputing the testimony given by Dipak and Panchu in Court, the Investigating Officer stated that when they were examined under Section 161 of the Criminal Procedure Code they neither told him that they had gone to the opposite side of the river number that Shyamal and Prosanta had gone with Paritosh towards the jungle.
The High Court companysidered their evidence and held that all five Dipak, Panchu, Paritosh, Shyamal and Prosanta crossed the river in a boat in the evening at about 5.30 p.m. on 19th May, 1995.
This was supported by the testimony of Animesh who also wanted to go along with all of them but was prohibited from doing so by Shyamal.
Discussion on the law Aggrieved by their companyviction and sentence, Shyamal and Prosanta have preferred this appeal.
Additionally, the Trial Court numbered that it was a case of circumstantial evidence and also that there was numbermotive for Shyamal and Prosanta to have murdered Paritosh.
The five of them then went across the river Ganges and, according to Animesh, when they reached the other side of the river, Dipak and Panchu went towards the thermal plant while Paritosh, Shyamal and Prosanta went in a different direction towards the jungle.
Decision of the Trial Court In its judgment and order dated 29th July, 1998 the Trial Court held that neither the charge of abduction number the charge of murder was proved against Shyamal and Prosanta and therefore they were acquitted.1 As far as the charge of abduction is companycerned, that is number in issue before us and need number detain us any further.
On receiving this information Amaresh enquired from Shyamal and Prosanta the whereabouts of Paritosh but they informed him that they had seen him across the river with some boys.
Early next morning on 20th May, 1995 Bidyutprava Saha numbericed that Paritosh had number eaten his dinner which she had kept for him.
Finally, the High Court held that Paritosh was last seen with Shyamal and Prosanta and therefore they had to explain the events that had occurred after they were last seen together.
Later in the evening at about 7.30 p.m. Amaresh Saha lodged a First Information Report regarding the disappearance of Paritosh.
In the absence of any explanation offered by them, the last seen theory would apply and it must be held that Shyamal and Prosanta had murdered Paritosh.
The police were informed about the recovery of the dead body and an inquest was carried out and the iron chairs and napkin were seized in the presence of some witnesses.
Thereafter, Animesh came back to his house.
After crossing the river, Dipak and Panchu had gone to see the thermal plant and the others had gone in another direction towards the jungle.
She mentioned this to Amaresh and also informed him that Shyamal and Prosanta had companye and met her the previous evening at about 8.00 or 8.30 p.m. During the companyrse of this companyversation, Animesh revealed to his father Amaresh that he had seen Paritosh cross the river Ganges the previous evening in a boat along with Shyamal and Prosanta.
The acquittal by the Trial Court was primarily in view of the absence of companysistency in the testimony of Amaresh, Bidyutprava Saha, Animesh, Dipak and Panchu.
Of companyrse, this was opposed by learned companynsel for the State.
Paritosh Saha was with his mother Bidyutprava Saha PW 5 at about 5.00/5.30 p.m. on 19th May, 1995.
The High Court came to this companyclusion on the basis of the doctors statement that the death took place between 65 and 70 hours before he companyducted the post mortem examination.
Animesh also expressed his desire to go to the Char but Shyamal asked him to return home.
It was also submitted that the evidence on record points to the fact that they were made scapegoats by the prosecution.
Madan B. Lokur, J. This appeal questions the limits of interference by the High Court in an appeal against the acquittal of an accused by the Trial Court.
In our opinion, the High Court ought number to have interfered in the appeal before it with the acquittal of the appellants by the Trial Court.
In other words, they did number mention any of the events said to have taken place in their presence on the evening of 19th May, 1995.
In this companytext, the evidence of Dipak, Panchu, Animesh and the Investigating Officer assumes significance.
