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2000 DIGILAW 349 (CAL)

Rabi Murmu v. State of West Bengal

2000-07-17

NURE ALAM CHOWDHURY, PRADYOT KUMAR SEN

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JUDGMENT Sen, J. This appeal is at the instance of a convict and is directed against judgment and order of conviction passed by Sri R. D. Kundu, Additional Sessions Judge, Jalpaiguri in Sessions Case No. 27 of 1991. 2. The facts leading to the prosecution of this convict-appellant are that one Suniram Oraon, since deceased was called upon and taken away from his residence by his friends and the present appellant, and they proceeded towards the Shalbari garden. The said Suniram was found missing since then and as he did not come back, searches were made to trace him out, but to no effect. On the next day, this appellant is alleged to have come back alone, but his conduct arose suspicion in the mind of his neighbours and so interrogation commenced by the local people. Ultimately, he admitted that on 25.5.90, he took the deceased by a bicycle to Shalbari. This appellant along with accused Kalia and Mahadeb had made him to consume liquor. Thereafter, the deceased was taken to the northern side of rail crossing at Hatiabari where this appellant along with others killed him by cutting his throat with a 'kukhri' and thereafter, the body was taken into a gunny bag and buried the dead body on the bank of river Dima. The appellant and other accused persons stated that they concealed the weapon and it was brought by the accused Mahadeb. On the basis of the said statement, the appellant Rabi was taken to the Police Station by the villagers and F.I.R. was lodged and the investigation of the case commenced. Further prosecution case is that the appellant Rabi had a transaction of money with the deceased and took a loan of Rs. 8,000/-, ten mds. of paddy from the deceased and when the deceased demanded the refund, he was murdered by the appellant. Upon completion of the investigation, examination of the witnesses under Section 161 Cr. P. C. and after obtaining the P. M. Report, a charge-sheet was submitted against the appellant and others under Sections 302/201 I. P. C. 3. 8,000/-, ten mds. of paddy from the deceased and when the deceased demanded the refund, he was murdered by the appellant. Upon completion of the investigation, examination of the witnesses under Section 161 Cr. P. C. and after obtaining the P. M. Report, a charge-sheet was submitted against the appellant and others under Sections 302/201 I. P. C. 3. At the trial, the prosecution examined 11 witnesses and upon completion of the trial, this appellant namely, Rabi Murmu was found guilty for offence under Sections 302/201/364 I. P. C. and was convicted and sentenced for imprisonment for life and was further convicted to suffer R. I. for two years and a fine of Rs. 1,000/-, in default to suffer R.I. for another six months under Section 201 I.P.C. The convict was further convicted to R. I. for two years and to a fine of Rs. 1,000/- in default to suffer R. I. for another six months more under Section 364 I.P.C. Other accused persons were found not guilty and they were accordingly acquitted. 4. On being aggrieved by this judgment and order of conviction, this appeal has been preferred by the convict Rabi Murmu. The only point for consideration before this Court how far the order of conviction and sentence is maintainable in law. 5. On examination of the evidence and materials-on-record, we find that P. W. 1 is not an eye-witness, who also admitted in cross-examination that he did not see the occurrence and cannot recollect when his brother that is the victim was called upon by the appellant Rabi Murmu. P.W.2 is also not an eye-witness. Be it remembered that it is a case where there is no eye-witness, the case depends purely on circumstantial evidence. It appears from the evidence on record that this appellant along with other accused persons called the victim on the fateful day and took him and since then the victim was found missing and subsequently his dead body was found being buried on the bank of the river Dima. Thus, the only circumstance against the appellant is that the appellant took the victim somewhere and on the next day his dead body was recovered. There is practically no evidence that this appellant or anybody was found killing the victim Suniram Oraon. The prosecution, to a large extent, depends on some extra judicial confession. Thus, the only circumstance against the appellant is that the appellant took the victim somewhere and on the next day his dead body was recovered. There is practically no evidence that this appellant or anybody was found killing the victim Suniram Oraon. The prosecution, to a large extent, depends on some extra judicial confession. Arrest was made on the day next to the date of alleged incident. It is in evident that when on the next day following the day of murder, the appellant was found in some suspicious mood, the villagers began to interrogate him and on close interrogation, he admitted that he had murdered the victim Suniram Oraon. P. W. 7 who happens to be the wife of the victim stated in her examination-in-chief, that after persistence by the villagers, accused Rabi admitted that he had killed her husband and he kept the dead body under the bank of river Dima, but in cross-examination that witness stated that villagers told her about Rabi's admission. This indicates that P. W. 7 had no direct knowledge about the said admission. On perusal of the evidence, We find with regard to admission and/or confession, that the evidence is only hearsay. There is nothing on record that any witness was present when such admission was made by the convict-appellant. Therefore, the story of admission and/or confession fails. Thus on perusal of the entire evidence on record, we do not find anything that the convict appellant had any hand in the murder of Suniram. There is no dispute that Suniram was murdered, but the findings of the trial that Rabi was the author of the said murder cannot be accepted in the absence of any evidence on record. 6. Let us now examine if the prosecution had proved any charge under Section 364 I.P.C. The learned Advocate appearing for the appellant submits that there was no charge under Section 364 I.P.C., but when there is a charge framed under Section 302 I.P.C., we think that the trial cannot be vitiated for absence of any charge under Section 364 I.P.C., since it is a lessor offence and lesser punishment has been provided. 7. P.W.1, P.W.2 and P. W. 4 stated on oath that on 25.5.90 this convict called Suniram and took him to some place and the said Suniram was found missing since then. 7. P.W.1, P.W.2 and P. W. 4 stated on oath that on 25.5.90 this convict called Suniram and took him to some place and the said Suniram was found missing since then. It is in evidence that on 25.4.90, Suniram on being called by the appellant and others went along with them, and on the next day his dead body was found by the side of river Dima which was buried there. Thus, the fact remains that Suniram was last seen with the convict-appellant and others and subsequently, his body was found. The prosecution, as we have already point out, had failed to establish that Suniram was murdered by the appellant. But, what is found from the evidence is that this convict abducted Suniram. In this way the charge under Section 364 I.P.C. can be maintained. But, so far as the charge under Section 201 I.P.C. is concerned, we say that such charge cannot stand as the major charge of murder of Suniram having failed, the question of concealment of evidence that is concealment of the dead body by this convict cannot arise. There is practically no evidence that this appellant had any hand in burying the dead body on the bank of the river Dima. It may be that the dead body was recovered therefrom but no one could see that it was the appellant, who had done the job. 8. At this learned Advocate for the appellant submits that when charge under Sections 302/201 I.P.C. fails, the appellant may be found guilty under Section 364 I.P.C. and be sentenced to the period already undergone. Learned P. P. did not raise any objection to this submission. Thus, upon the consideration of the entire materials and evidence on record, we are of the view that the appeal so far as the charge under Sections 302/201 I.P.C. is concerned it should succeed, but so far as the charge under Section 364 I.P.C. is concerned, the conviction and sentence should remain. It is submitted before us that the appellant has been in custody for more than 8 years, so we reduce the conviction and sentence to the period already undergone. In that circumstance of the above, the appellant should be released forthwith. The copy of the judgment be sent to the trial Court. Thus, the findings in so far as it relates to Sections 302/201 I.P.C. are concerned, it stand set aside. In that circumstance of the above, the appellant should be released forthwith. The copy of the judgment be sent to the trial Court. Thus, the findings in so far as it relates to Sections 302/201 I.P.C. are concerned, it stand set aside. Thus, the appeal is allowed in part and sentence reduced. The judgment and order of conviction are modified accordingly. Chowdhury, J. I agree.