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2004 DIGILAW 56 (CAL)

SUJIT DOLUI v. STATE OF WEST BENGAL

2004-01-30

ALOK KUMAR BASU, AMIT TALUKDAR

body2004
AMIT TALUKDAR, J. ( 1 ) THIS Criminal Appeal No. 82 of 2002 is directed against the judgment and order dated 14. 2. 2003 passed by the learned Additional sessions Judge, 2nd Court, Birbhum in Sessions Trial No. 2 of August, 2002. The learned Trial Court by its impugned judgment convicted the condemned/ appellant in respect of the charge of section 302/201 of the Indian Penal Code and sentenced him to death. ( 2 ) DEATH Reference No. 2 of 2002 was submitted in respect of the said conviction. ( 3 ) ON the basis of a chargesheet, submitted by P. W. 23, the condemned/ appellant was placed on trial before the learned Additional Sessions Judge to answer the following charges : firstly, "that you, on or about the 9th day of February, 1996 corresponding to 26th Magh, 1402 B. S. at Bhubandanga, within Bolpur P. S. did commit murder by intentionally causing the death of Purnadas Hazra alias Raghu and thereby committed an offence punishable under section 302 of the Indian penal Code, and. . . . . . . . . Secondly, "that you, on or about the same day of at having reason to believe that certain offence, to with murder of Purnadas Hazra alias Raghu, punishable with death or imprisonment for life has been committed, did cause certain evidence of the said offence to disappear, to wit removed some articles with the intention of screening yourself, from the punishment, and thereby committed an offence punishable under section 201 of the Indian penal Code. . . . . " ( 4 ) THE trial proceeded on the basis of his plea of not guilty and resulted in the conviction and sentence which forms the subject-matter of the present appeal. ( 5 ) SHRI Shiladitya Sanyal appearing with Shri Sanjib Dan for the condemned/appellant assailed the conviction on the ground that firstly this was a case based purely on circumstantial evidence and chain of the circumstances was not complete. ( 5 ) SHRI Shiladitya Sanyal appearing with Shri Sanjib Dan for the condemned/appellant assailed the conviction on the ground that firstly this was a case based purely on circumstantial evidence and chain of the circumstances was not complete. Secondly, the purported declaration made before P. W. I, P. W. 2, P. W. 3 and P. W. 5 by deceased Raghu cannot be treated as a dying declaration within the scope of section 32 of sub-clause (1) of the evidence Act as it was the conjecture of P. W. 2 and nobody has seen as to who had actually put the poison in the bottle from which the deceased had consumed the soft drink; as such, the same could not be treated as a formal dying declaration. Thirdly, it was canvassed that the question of motive could not be established by the prosecution which was most vital in the facts of the present case. That the condemned/appellant had no intention of committing the offence was apparent that he simply offered the soft drink since the deceased was suffering from acidity after having a feast and had he actually the intention to murder he could have invited the deceased to his own house. Fourthly, it was submitted that the jar which was seized from the house of the condemned/appellant there was not supporting evidence of the forensic laboratory to show that it contained poison. ( 6 ) AS a part of his submission Shri Sanyal referred to the decision of Bhim singh vs. State of Haryana, 2003 SCO (Cri) 1469 and submitted that as motive could not be established the prosecution case became very weak. ( 7 ) WINDING up his submission Shri Sanyal submitted that the conviction recorded by the learned Trial Court in respect of the charges for which the condemned/appellant has been found guilty could not be sufficiently proved by the prosecution and simply on the basis of suspicion the entire case was based. He prayed for setting aside the conviction as the evidence to connect the condemned/appellant with the charges was not satisfactory. ( 8 ) SHRI Sanyal, on the question of sentence, submitted before this Court that the provisions of section 354, sub-section (4) of the Code of Criminal procedure was not properly adhered to by the learned Trial Court. He prayed for setting aside the conviction as the evidence to connect the condemned/appellant with the charges was not satisfactory. ( 8 ) SHRI Sanyal, on the question of sentence, submitted before this Court that the provisions of section 354, sub-section (4) of the Code of Criminal procedure was not properly adhered to by the learned Trial Court. According to shri Sanyal the present case cannot be termed as a rarest of the rare case justifying death penalty. Shri Sanyal read out from the sentencing portion of the judgment and submitted that special reasons in support of death sentence was not given by the learned Trial Court and in the facts and circumstances of the case the sentence of death was not justified. ( 9 ) LEARNED Public Prosecutor for the State assisted by Shri Ashim Kumar roy submitted that this is not a case of circumstantial evidence; there was direct evidence against the condemned/appellant on the point of the condemned/ appellant administering poison to the deceased which resulted in his death. Learned Public Prosecutor referred to Ext. Nos. 3 and 4 and submitted that the recovery of the bottle and the tin showed that the question of poison stood proved. He also referred to the medical evidence which according to him supported the prosecution case in respect of the said poison. ( 10 ) WITH regard to the question of motive learned Public Prosecutor showed us from the evidence of P. W. 16 that there was trouble over awarding the contract in the Viswaoharati Canteen which operated as a motive for the murder. ( 11 ) LEARNED Public Prosecutor did not find any reason as to why the conviction should be disturbed. ( 12 ) ON the point of sentence learned Public Prosecutor submitted that the death penalty in the present case in the fact situation was not at all unjustified. A friend was murdered and that too in a cold blooded manner which calls for no sympathy argued the learned Public Prosecutor. He showed from the evidence that taking advantage of the physical uneasiness of the deceased he came forward to give him some relief and on the pretext offered the bottle of Thums up which was mixed with poison; this according to learned Public Prosecutor was a worst type of treachery one can ever imagine. He showed from the evidence that taking advantage of the physical uneasiness of the deceased he came forward to give him some relief and on the pretext offered the bottle of Thums up which was mixed with poison; this according to learned Public Prosecutor was a worst type of treachery one can ever imagine. He has prayed before the court for dismissing the appeal and accepting the reference. ( 13 ) WE have very carefully perused the evidence in the light of the argument made by Shri Sanyal and learned Public Prosecutor. We wish to set out the various circumstances which transpire from the evidence. ( 14 ) PROFILE of the prosecution case, as we have seen, shows-the deceased raghu along with P. W. 2 and P. W. 13 attended a feast hosted by P. W. 8 in the evening of 9. 2. 1996. Thereafter, the deceased Raghu accompanied by P. W. 2 were sitting in the house. At about 11-00 p. m. in the night the condemned/ appellant called them and after sometime P. W. I heard a cry from near the bhubandanga Public Library and saw the deceased who told him that the condemned/appellant had mixed poison with soft drink, on the road. P. W. 2 also fell ill and they were taken to hospital where Raghu died on the next date. We also find that there was a tussle over the job in the Canteen of Viswabharati and that, marks of vomit were found near the place of occurrence. ( 15 ) WE find the question of invitation to the feast, hosted by P. W. 8, comes out from the evidence of P. W. I, P. W. 2, P. W. 3, P. W. 8 and P. W. 13; whereas the condemned/appellant calling the deceased Raghu from the house has been spoken to by P. W. I, P. W. 2 and P. W. 5. That the condemned/appellant offered soft drink to the deceased when he was complaining of acidity has been told by P. W. I, p. W. 2 and P. W. 3. The stains of vomit which was seized by P. W. 22, having been found near the place of occurrence has been deposed to by P. W. I, P. W. 3, P. W. 5, p. W. 6, P. W. 9 and P. W. 13. The stains of vomit which was seized by P. W. 22, having been found near the place of occurrence has been deposed to by P. W. I, P. W. 3, P. W. 5, p. W. 6, P. W. 9 and P. W. 13. We find from the evidence of P. W. 4, P. W. 5, P. W. 6, p. W. 9 and P. W. 13 that the bottle of Thums Up from which the deceased Raghu took drink as a result of which he died and which was thrown away, as stated by p. W. 2 himself who was also a victim, by the condemned/appellant near a pond was recovered by P. W. 22 in the presence of P. W. 4, P. W. 5, P. W. 6, P. W. 9 and pw. 13. The police after the occurrence had seized a container with some powder and a bottle of wine from the house of the condemned/appellant under a seizure list (Ext. 3), has been spoken by P. W. 4, P. W. 5, P. W. 6, P. W. 9 and P. W. 13. ( 16 ) THERE is also the contemporaneous evidence of P. W. I, P. W. 2, P. W. 3 and p. W. 5 about the deceased and P. W. 2 being taken to the hospital where the deceased Raghu died on the next date, inquest report (Ext. 2), which has been signed by P. W. 7, P. W. 10, P. W. ll, P. W. 12, P. W. 14 and P. W. 15, was prepared by P. W. 22. ( 17 ) THAT apart there is the medical evidence of P. W. 19, who conducted the post-mortem examination (his report was marked as Ext. 8) on the body of the deceased Raghu and he opined on the basis of the chemical examination report (Ext. 7) that the deceased Raghu died on account of consumption of the poison which we find tallies with the one found in the container in the house of the condemned/appellant seized under a seizure list (Ext. 3 ). We have also the evidence of P. W. 18, who treated P. W. 2 who was himself a victim of the poison mixed by the condemned/appellant in the soft drink which was offered to the deceased raghu and also to P. W. 2. 3 ). We have also the evidence of P. W. 18, who treated P. W. 2 who was himself a victim of the poison mixed by the condemned/appellant in the soft drink which was offered to the deceased raghu and also to P. W. 2. We find the supporting evidence of P. W. 3, who was also offered the same ; but he declined as he had already taken his meal. ( 18 ) ALTHOUGH it is apparent from the evidence of P. W. I, P. W. 7, P. W. 9 and p. W. 16 that there was a dispute existing over the running of the canteen of viswabharati between the condemned/appellant and the deceased Raghu, who was supporting one particular candidate and this has been formed the basis of a motive for the murder. We, however, feel that even if we exclude the said circumstance the other surrounding circumstances and the evidence, particularly of P. W. I and P. W. 2, in our view, fortifies the prosecution case. That the deceased Raghu was complaining of acidity after he had taken a meal in the house of P. W. 8, was spoken of by P. W. 1 and P. W. 2 and he was called by the condemned/appellant in the night and after they had assembled near a bedi in the vicinit. y of Bhubandanga Public Library the condemned/ appellant offered the deceased Raghu Thums Up which he had brought from his house and immediately after consuming the same the deceased fell ill and he vomited along with P. W. 2 who was medically treated by P. W. 18. There are galaxy of evidence with regard to the seizure of the bottle and the container on this point and as such, we find that the prosecution has been able to bring home the charge of section 302 of the Indian Penal Code against the condemned/appellant beyond any reasonable doubt. ( 19 ) THE charge in respect of section 201 of the Indian Penal Code against the condemned/appellant, in our view, has also been proved from the evidence of P. W. 2 as immediately after the occurrence the condemned/appellant had thrown away the bottle near the tank in the place of occurrence which was recovered by P. W. 22 in the presence of P. W. 4, P. W. 5, P. W. 6, P. W. 9 and P. W. 13. However, although no separate sentence was passed by the learned Trial court in respect of the said charge, we feel that already for a higher charge the condemned/appellant was sentenced to DEATH no separate sentence in respect of the said charge need by recorded at this stage. ( 20 ) AS such, the conviction, recorded by the learned Trial Court against the condemned/appellant, cannot be interfered with. ( 21 ) NOW this brings us to the question of sentence. ( 22 ) WE have to see as to whether the capital sentence imposed by the learned trial Court can be upheld. ( 23 ) FROM a discussion which we have held hereinabove, no doubt the act of the condemned/appellant be speaks of a worst form of treachery as submitted by learned Public Prosecutor as a friend who administered poison on the context oi giving him some relief while he was complaining of acidity after having taken a feast. But, in our view, this cannot be said to be a rarest of the rare case and we feel that the crime is not of such a proportion that the condemned/appellant can be deemed to be a menace in the society having lost his right to live and the only apposite sentence would be that of death. ( 24 ) WE feel that the sentence of death cannot be sustained on the contrary, we convert the same to that of imprisonment for life with a fine of Rs. 1,000/-, in default, to suffer further rigorous imprisonment for three months. ( 25 ) IN view of our foregoing discussion we dismiss the appeal preferred by the condemned/appellant with the modification that the sentence of death is substituted by the sentence of imprisonment for life. ( 26 ) DEATH Reference No. 2 of 2002 is not accepted. Appeal accordingly disposed of. Appeal disposed of with modification in sentence.