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2002 DIGILAW 402 (CAL)

Amir Bachar v. State of West Bengal

2002-06-20

Amit Talukdar, ARUNABHA BARUA

body2002
JUDGMENT Amit Talukdar, J. Pursuant to a charge-sheet submitted by P.W.12, Raghupati Biswas against the accused/ appellant and one Dilip Mondal (since absconding) and Prafulla Sikdar, Kalachand Biswas and Ranjit Roy (who have since been acquitted) they were arrayed in Sessions Trial No. 3 of July, 1992 (Sessions Case No. 129 of 1988) before the learned Additional Sessions Judge, 2nd Court, Suri, Birbhum to answer the following charge : "That you along with others on or about the 11th day of April, 1987, corresponding to 27th Chaitra, 1393 B.S. at Nimpur Charakdanga Majhipara within P.S. Bolpur, in furtherance of the common intention of you all did commit murder by intentionally causing the death of Kartick Bayen and thereby committed an offence punishable under section 302 read with section 34 of the Indian Penal Code................." Alternatively- "That you along with others on or about the 11th day of April, 1987 corresponding to 27th Chatira, 1393 B.S. at Nurpur Ambagan, within P.S. Bolpur in furtherance of the common intention of you all, abducted Kartick Bayen in order that the said Kartick Bayen might be induced and thereby committed an offence punishable under section 364 read with section 34 of the Indian Penal Code, and within the cognizance of this Court of Sessions." 2. They having pleaded not guilty, were put on trial and the prosecution in order to prove its case examined as many as thirteen (13) witnesses of whom P.W.1 was the Mother of the deceased Kartick before whom the deceased made a dying declaration and implicating the appellant and Dilip Mondal who assaulted him with a knife. She also deposed that they had called his son from the house just before the incident. She found bleeding injury below the right rib of her son P.W.2 a neighbour also corroborated with regard to the statement made by the victim implicating the appellant and Dilip. In his presence the police seized the blood-stained clothes and napkin under the Seizure List (Ext. 1.). P.W.3 was also a witness to the Seizure List. P.Ws. 4, 5 and 8 turned hostile. 3. P.W.6 was the Autopsy Surgeon P.W.7 carried the dead-body and identified it to the doctor P.W.9 signed on the Seizure List in connection with the seizure of controlled earth and blood-stained earth from the place of occurrence. P.W.10 was also another witness to the seizure of the blood-stained clothes of the deceased Kartick. 4, 5 and 8 turned hostile. 3. P.W.6 was the Autopsy Surgeon P.W.7 carried the dead-body and identified it to the doctor P.W.9 signed on the Seizure List in connection with the seizure of controlled earth and blood-stained earth from the place of occurrence. P.W.10 was also another witness to the seizure of the blood-stained clothes of the deceased Kartick. P.W.11 brought the General Diary Register from the Bolpur Police Station. P.W.12 submitted the charge sheet and P.W.13 investigated the case. 4. The case of the defence was one of false implication and simple denial. 5. The learned Trial Court by its judgment and order dated 23.7.92 found that the charge against the accused/appellant under section 302, IPC has been proved and he was sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/- i. d. to suffer further Rigorous Imprisonment for 6 months and directed that fine, if realised, be paid to the P.W.1. However, the appellant was absolved of the charge of sections 364/34 of IPC. 6. The learned Senior Advocate appearing for the appellant has taken us through the evidence and submitted that the entire prosecution case is based on two aspects i.e., the question of last-seen-together and the surrender of the appellant before the Police Station and the statement made before the police (Ext. 4) and deposit of the weapon. 7. The learned Senior Advocate for the appellant submitted that the evidence with regard to the appellant surrendering at the Police Station and making a confession which was reduced in writing (Ext. 4) is not admissible under section 25 of the Evidence Act (for brevity, 'the said Act') and the deposit of the weapon also cannot be cured by the aid of section 27 of the said Act. He has relied on a decision of the Supreme Court in Prabhoo vs. State of U.P., AIR 1963 SC 1113 , in support of his aforesaid proposition and has prayed for excluding the said statement and the deposit of the weapon. 8. The learned Senior Advocate appearing on behalf of the appellant further submitted that the Inquest Report cannot go into evidence apart from the fact the same was not exhibited. It has no basis for formation of an opinion to arrive at the guilt of the appellant. He further submitted that since the author of the FIR (Ext. 8. The learned Senior Advocate appearing on behalf of the appellant further submitted that the Inquest Report cannot go into evidence apart from the fact the same was not exhibited. It has no basis for formation of an opinion to arrive at the guilt of the appellant. He further submitted that since the author of the FIR (Ext. 2/1) Haren Bayen died before he could be examined, the same could not be used in evidence as contents of the FIR can only be used for contradicting or supporting the version of the maker thereon. 9. He submitted that in the event the statement of the appellant (Ext. 4) is quashed out of consideration then there is practically no other materials to connect him with the offence; except, the evidence of P.W.1 the Mother of the deceased Kartick and P.W.2 who was spoken about the purported statement which has been disbelieved by the learned Trial Court implicating the appellant and the evidence of P.W.1 with regard to the appellant taking out the deceased just before the incident apart from being uncorroborated, cannot be accepted for the purpose of finding the appellant guilty as it is a very weak piece of evidence. In support of his argument on this point the learned Senior Advocate for the appellant referred to the decisions of:- 1. Eradu vs. State of Hyderabad, AIR 1956 SC 316 ; 2. Padala Veera Reddy vs. State of Andhra Pradesh, AIR 1990 SC 79 . 10. He also referred to the decision of Gambhir vs. State of Maharashtra, (1982) 2 SCC 351 , on the proposition of last seen together and the point of circumstantial evidences and prayed for setting aside the order of conviction and sentence passed by the learned Trial Court. 11. A very stiff opposition was put up from the State by its learned Public Prosecutor who submitted that even if the purported statement (Ext. 11. A very stiff opposition was put up from the State by its learned Public Prosecutor who submitted that even if the purported statement (Ext. 4) of the appellant cannot be treated as a confession as it is hit by section 24 of the said Act, he submitted that the incident took place at about 6-30 p.m. and the FIR was lodged at about 9-15 to 9-30 p.m. i.e., very near to the time of occurrence and as the death took place after the victim was taken out by the appellant and another absconding accused, the said conduct can very much go into evidence under section 8 of the said Act. He has also referred to section 106 of the said Act and cited the decision of State of West Bengal vs. Mir Mohammad Omar and Ors., 2000 CRI. L. J. 4047, in this context. 12. The learned Public Prosecutor quoted from section 6 of the said Act and submitted immediately after the incident the inquest was prepared and accused persons surrendered in the Police Station and these circumstances are res gese. 13. The learned Public Prosecutor further submitted that even though the FIR maker died during the pendency of the trial and he could not be examined; even then the other named witnesses in the trial corroborated his version in their substantive evidence and as it stood endorsed, the FIR cannot be discredited as sought to be made out by the learned Senior Advocate for the appellant. 14. He further submitted that the court should consider delay in the time of deputation since the witnesses came to the Box much after the date of occurrence. It was nothing unusual that there may be minor instances of omission here and there. 15. Lastly, refuting the contention of the learned Senior Advocate for the appellant that the court cannot look into the Inquest Report which has not been exhibited, he submitted that in view of sub-section (2) of section 172 of the Code of Criminal Procedure the Inquest Report is part of the case diary and the court can very much look into the case diary for forming its opinion. 16. The learned Public Prosecutor summed up the entire submission and stated that in view of the section 8 of the said Act i.e., the conduct of the appellant which should be taken into account and the appeal be dismissed. 17. 16. The learned Public Prosecutor summed up the entire submission and stated that in view of the section 8 of the said Act i.e., the conduct of the appellant which should be taken into account and the appeal be dismissed. 17. In reply the learned Senior Advocate for the appellant sought to countermand the forceful submission of the learned Public Prosecutor by submitting that the entire gamut of Ext. 4 with regard to confection and purported deposit of the arms was not only completely affected by the virus of sections 25 and 27 of the said Act; but, although it may be a relevant fact with regard to the nature of the crime but since the same was not an admissible piece of evidence it could not be treated as res gese under section 6 of the said Act. 18. The learned Senior Advocate in re-poly further submitted that the fact must not only be relevant and be duly proved but it has to be admissible, otherwise it has no probative value. He submitted that the knife was not proved nor was it exhibited. The oral explanation of P.W.13 that the same was not sent for Chemical Examination, did not merit any consideration in the absence of any forwarding note to the effect showing that it was sent for chemical examination. He referred to the decision of K. Sukumaran vs. State of Kerala, (2000) 10 SCC 365 . 19. Further, in reply to the argument of the learned Public Prosecutor the learned Senior Advocate for the appellant submitted that in view of sub-section (2) of section 172 of the Cr. P. C., which he read out, the Inquest Report cannot go into evidence and the same cannot be used to fill in the gap by aid of section 172(2), Cr. P.C., on this point he referred to the decision of the Supreme Court in Pandurang & Ors. vs. State of Hyderabad, AIR 1955 SC 216 . 20. Reiterating his earlier stand he submitted that as there are no cogent circumstances forming a conclusive chain and the gapping hole in the fabric of the entire prosecution case it was only probable that the conviction should be set aside. 21. vs. State of Hyderabad, AIR 1955 SC 216 . 20. Reiterating his earlier stand he submitted that as there are no cogent circumstances forming a conclusive chain and the gapping hole in the fabric of the entire prosecution case it was only probable that the conviction should be set aside. 21. The learned Senior Advocate for the appellant took exception to the argument of the learned Public Prosecutor with regard to the admissibility of the contents of the FIR which sought to be found favour in the evidence of P.W.1 as according to him only the said FIR can be used under section 145 of the said Act. But referring to sections 145 and 157 of the said Act and submitted that Ext. ½ stood totally washed out. 22. Expanding his scope of reply and refuting the submission of the learned Public Prosecutor that the conduct of the appellant could be taken into evidence in view of the Ext. 4 and the dying declaration made before the P.Ws. 1 and 2 the learned Senior Advocate submitted that non-examination of Debasish who gave information with regard to the deceased Kartick sustaining injuries which led to P.Ws. 1 and 2 and other witnesses including the Late Author of the FIR (Ext. ½) to proceed to the place of occurrence along with the list of hostile witnesses (P.Ws. 4, 5 and 8) totally weakens the case and if the said circumstance is read in conjunction with the evidence of the Autopsy Surgeon (P.W.6) that injury may be caused by several persons whereas the purported dying declaration only spoke of stab injury and has no food particle was found from the Post-mortem Report; although, it was in the evidence of P.W.1 that the deceased Kartick was taking his meal; while he was taking away; then the said circumstance could not be matched with each other and as there was absence of opinion with regard to time of death and the evidence of P.W.1 being corroborated by the other circumstances, it was unsafe to pass an order of conviction. 23. From the Bar the rival contentions made and the decisions cited have been closely considered by us. 23. From the Bar the rival contentions made and the decisions cited have been closely considered by us. We have taken into account the entire span of the prosecution case and find as rightly pointed out by the learned Senior Advocate for the appellant the same is circumscribed two basic features- a) The question of taking away of deceased Kartick as deposed by P.W.1 and stated in the FIR (Ext. ½) and the percept of last seen together and b) Appearance of the appellant and the accused Dilip Mondal (since absconding) before the Bolpur Police Station and making a statement which was reduced into writing (Ext. 4) by S.I., Shir Kanai Lal Chakrobroty of the said Police Station (not examined) into a G.D. Entry which was produced by P.W.11. 24. The other part of the prosecution case with regard to the statement of deceased Kartick before his death implicating the appellant and the accused Dilip Mondal (since absconding) who have assaulted him with knife has of course been disbelieved by the learned Trial Court on the ground that P.Ws. 4 and 8 deposed that deceased Kartick was unconscious at the time of incident and although, P.W.1 named the persons who have since been acquitted in the array of the persons who had assaulted Kartick, which was not corroborated by P.W.2 and other hostile witnesses there was reason to disbelieve the same and accordingly, it was not accepted. 25. Before proceeding any further we have ourselves assessed the tenor of the evidence of P.Ws. 1 and 2 in this regard and although on an independent assessment we could have disagreed with the learned Trial Court and accepted the said declaration but yet we find from the surrounding circumstances and other perforating holes in the prosecution case it would be unsafe to place any reliance thereof. 26. 1 and 2 in this regard and although on an independent assessment we could have disagreed with the learned Trial Court and accepted the said declaration but yet we find from the surrounding circumstances and other perforating holes in the prosecution case it would be unsafe to place any reliance thereof. 26. Now with regard to the main pillar of the prosecution case with regard to the evidence of P.W.1 that before the incident the deceased Kartick was taken away by the appellant hereinabove and accused Dilip Mondal (since absconding) and information given by P.W.1 Debasish (not examined) who was not cited as a witness under instruction of the Superior Officers as per the evidence of P.W.12 which made P.W.1, her husband (since deceased) as many persons go to the spot "including her minor sons" where deceased "Kartick told that accused Amir and Dilip assaulted him with knife. He also stated that accused Prafulla, Kala and Ranjit were with those miscreants. These three persons were standing by the side when Dilip and Amir assaulted Kartick with knife." 27. P.W.2 who was also a proximate witness having gone to the spot immediately found Kartick lying on the lap of his Mother (P.W.1) with bleeding injury on his right side abdomen and after water was administered to Kartick, opened his eyes and "told us that Dilip Mondal and Amir Bachar assaulted him with knife. He did not state the name of any other persons." P.W.3 who signed on the Seizure List (Ext. 1/1) pertaining to the seizure of a thirteen inch (13") sharp knife with blood stains from the possession of co-accused Dilip Mondal which was also signed by the appellant hereinabove. He also stated that he did not know as to whether Kartick gave out the name of the assailants and he stated "he did not state the name of his assailants before me." and in his cross-examination he gave out that he was standing "outside the police station when I saw Dilip Mondal and Amir Bachar entering inside the P.S.I signed the seizure list and then went away." P. Ws. 5 and 8 resiled from their earlier statements. 28. We agree with the submissions of the learned Senior Advocate for the appellant that the last-seen-together theory is an extremely weak piece of evidence and unless there is substantial corroboration, the same cannot be relied on. 5 and 8 resiled from their earlier statements. 28. We agree with the submissions of the learned Senior Advocate for the appellant that the last-seen-together theory is an extremely weak piece of evidence and unless there is substantial corroboration, the same cannot be relied on. We find that the decision of Gambhir vs. State of Maharashtra (supra) that the circumstance of last-seen-together by itself is not a conclusive piece of evidence unless there are other connecting circumstances linking the accused with the crime is squarely applicable herein. It is now a well settled principle crystallised by the various decisions of the Apex Court that each and every incrimating circumstance must be clearly established by reliable and clinching evidence and the circumstance so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. The very latest decision of the Supreme Court in Sudama Pandey and Ors. vs. State of Bihar, (2002)1 SCC 679 , quoting with approval the decision of Tanviben Pankaj Kumar Divetia vs. State of Gujarat, (1997) 7 SCC 156 , which reads as follows : "45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions." 29. We are tempted to rely on a 3-Judge-Bench decision of the Supreme Court in Subhash Chand vs. State of Rajasthan, (2000) 1 SCC 702, wherein R.C. Lahoti, J. speaking for 3-Judge-Bench of the Hon'ble Chief Justice Dr. A.S. Anand, the Hon'ble Mr. Justice R.C. Lahoti and the Hon'ble Mr. Justice Ashok Bhan held: "24. Thus, none of the pieces of evidence relied on as incriminating, by the trial court and the High Court, can be treated as incriminating pieces of circumstantial evidence against the accused. Though the offence is gruesome and revolts and human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal Dixit case this court cautioned 'human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions' (SCC p. 44, para 33). This court has held time and again that between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict." 30. All the chain of circumstances in this case if taken individually, we are afraid, leads to a perforating hole with which we are unable to forge a conclusive link which rules out any other reasonable hypothesis other than the guilt of the accused. It cannot be brushed aside altogether. The evidence of P.W.1 has to be taken with caution with regard to the question of taking away and the dying declaration. It cannot be brushed aside altogether. The evidence of P.W.1 has to be taken with caution with regard to the question of taking away and the dying declaration. If we see that she was not giving a correct picture then there was a probability of the death could be caused by other circumstances in view the of sundry gaps in the prosecution case. With regard to the opinion of the doctor that assault could be made by several persons whereas the dying declaration speaks only with regard to the stabbing injury by the appellant and the accused Dilip Mondal and that although no food particle was found in the Post-mortem Examination which showed only empty stomach whereas P.W.1 spoke of the deceased taking his meal at the time he was taking out and the string of all hostile witnesses and non-examination of Debasish we find that it would be unsafe to rest the conviction of the appellant on the piece of such dying declaration and the question of taking away. While we find that the decision of Padala Veera Reddy vs. State of Andhra Pradesh (supra) and Eradu vs. State of Hyderabed (supra) are quite applicable in the fact situation of the instant case. We, with utmost respect, are unable to apply the ratio of the decision of State of West Bengal vs. Mir Mohammad Omar (supra) in view of the fact that the fact situation of the said case is not only quite distinguishable from the present case we are dealing with; but, there was other direct incriminating evidence with regard to taking away of the deceased before he was done to death. 31. As such, with utmost respect we are unable to apply the said decision cited on behalf of the State. 32. If the question of dying declaration which has been disbelieved by the learned Trial Court and the question of taking away is disbelieved by us and the circumstantial evidence being not conclusive, the other aspect of the matter with regard to Ext. 4 being admissible remains for our consideration. 32. If the question of dying declaration which has been disbelieved by the learned Trial Court and the question of taking away is disbelieved by us and the circumstantial evidence being not conclusive, the other aspect of the matter with regard to Ext. 4 being admissible remains for our consideration. While there is absolutely no doubt that the purported statement made by the accused Dilip Mondal in company of the appellant before us with regard to the offence in question and the deposit of the weapon with blood-stain cannot either be admissible as the statement was made before the police officer in course of the investigation which is hit by section 25 of the said Act and the deposit of the arms cannot also be termed as a seizure under section 27 of the said Act as reflected from Ext. 1/1. There is no dispute with regard to the said position and we are in absolute agreement with the learned Senior Advocate for the appellant in this regard. We find the decision of Prabhoo vs. State of U.P.(supra) much applicable herein. 33. The issue could have ended there in a straight-jacket formula. 34. But it requires some further probe, as it has been very strenuously pointed out by the learned Public Prosecutor, who, we must say, has argued his case with admirable sincerity and great focus, that the conduct of the accused in depositing the arms before the police station and the statement are relevant and can be treated as res gese under section 6 of the said Act being a fact which is not in issue but so connected with the confession (Ext. 4) even if it may not be admissible but their conduct in coming to the P.S. can be treated as subsequent conduct under section 8 of the said Act and can be accepted and even though Ext. 4 is hit by sections 25 and 27 of the said Act, but is definitely admissible under section 8 of the said Act and that immediately after the incident the Inquest Report being prepared and surrender of the accused in the Police Station are all res gese within the meaning of section 6 of the said Act. 35. 4 is hit by sections 25 and 27 of the said Act, but is definitely admissible under section 8 of the said Act and that immediately after the incident the Inquest Report being prepared and surrender of the accused in the Police Station are all res gese within the meaning of section 6 of the said Act. 35. We have given our anxious consideration to the same and we find that although prima facie there may be some appeal in the said submission of the learned Public Prosecutor but on a further analysis we find that since the relevant fact cannot be proved into evidence as not being admissible the said piece of evidence cannot be treated as res gese as suggested by the learned Public Prosecutor. We could have very well taken into account the question of surrender and deposit of the arms. If it was proved by other surrounding circumstances and although the fact of reducing Ext. 4 in writing may be relevant but the same being inadmissible in evidence cannot be covered by the question of res gese being applicable. 36. In view of the fact that both the question of last-seen-together and the circumstantial evidence not being clinching to relate the appellant with the crime and as also the Ext. 4 being inadmissible the conviction based on the basis of the said piece of evidence is unsustainable and has to be set aside. 37. Since we find that the conviction cannot be sustained on the above two grounds we feel it redundant to advert to other circumstances as has been raised at the Bar. 38. We accordingly allow the appeal and set aside the conviction and as also the sentence recorded by the learned Trial Court and direct that the appellant be discharged from his Bail Bond. 39. Appeal is allowed. Urgent certified copy of this judgment be supplied to the learned counsel for the parties. Arunava Barua, J.: I agree. Appeal allowed.