Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 178 (CAL)

SASTI MOHANTA v. STATE OF WEST BENGAL

2005-03-15

ALOK KUMAR BASU, P.K.DEB

body2005
ALOK KUMAR BASU, J. ( 1 ) THIS criminal appeal is at the instance of one Sasti mohanta who had sufferred the sentence of imprisonment for life under section 302 of the IPC pursuant to a judgment and order recorded by the Id. Additional sessions Judge, First Court, Dakshin Dinajpore at Balurghat in connection with Sessions Trial No. 10 of 1998 corresponding to Sessions Case No. 23 of 1998. ( 2 ) THE prosecution case, as appears from the FIR of one Lakshman Murmu dated 3rd August, 1995, is that on 2nd August, 1995 night one Daiba Mohanta, wife of the appellant, Sasti Mohanta was murdered by strangulation and on the next morning at about 7 a. m. being attracted with the sound of alarm coming from the house of the appellant, neighbours including the FIR maker rushed to the spot and noticed the deadbody of Daiba. It was disclosed in the FIR of lakshman Murmu that the neighbours had strong suspicion about the involvement of the appellant behind the commission of murder of his wife. ( 3 ) ON the basis of the FIR of Lakshman Murmu, police instituted the case and after examination of relevant witnesses, collection of P. M. report, police finally submitted chargesheet against the appellant under section 302 of the ipc. ( 4 ) THE Id. Additional Sessions Judge after framing charge against the appellant under section 302 of the IPC recorded the statement of prosecution witnesses numbering seven in all including three neighbours of the appellant, the doctor who conducted the P. M. examination, two police officers, who performed the work of investigation and finally the FIR maker, who was cited as witness in the chargesheet, but, who was examined as Court witness. ( 5 ) THE Id. Additional Sessions Judge after considering the prosecution witness and after hearing the submissions of both the prosecution and the defence, finally held the appellant guilty under section 302 of the IPC holding inter alia that from the circumstances presented through the evidence of prosecution, it could be reasonably accepted that since the appellant was present in the room where his wife was murdered, there was only possibility to raise finger towards the appellant who happened to be the husband and with whom the deceased had no cordial relation. ( 6 ) THE Id. ( 6 ) THE Id. Judge to arrive at his conclusion regarding the guilt of the appellant mainly relied on the P. M. report wherefrom it was available that the victim died a hiomicidal death and that death was caused due to manual strangulation. The Id. Judge also relied on the testimony of P. W. Nos. 1 to 3 to hold conclusively that on the night of 2nd August, 1995 the appellant was very much present inside the room where the appellant and the victim slept together and spent the fateful night. ( 7 ) APPEARING for the present appellant Mr. Subir Ganguly, has taken us through the entire evidence on record and also the FIR which was an exhibited document before the Id. Trial Court. Mr. Ganguly has first of all drawn our attention to the testimony of the police officer, the P. W. 6, who accepted the fir at the police station and submits that there is no evidence who actually drafted the FIR fixing the point of suspicion towards the appellant and he also submits that when the framing of the FIR itself is doubtful, the prosecution cases suffered a big jolt which could not be repaired through the evidence on record. ( 8 ) MR. Ganguly contends that P. W. Nos. 1 to 3 who are the neighbours of the appellant, did not utter a single word that they have had any knowledge, whether direct or indirect, regarding the presence of the appellant at relevant night with the deceased. P. W. Nos. 1 to 3 also did not utter a single word regarding their knowledge of any strained relation between the appellant and his wife. ( 9 ) MR. Ganguly submits that although the P. M. doctor on dissection of the deeclbody of the victim opined that death was caused due to strangulation but to hold the appellant squarely guilty under section 302 of the IPC, the prosecution must come forward with convincing evidence indicating the involvement of the appellant and mere conjecture and surmise cannot take the place of legal proof. ( 10 ) MR. Ganguly contends that on clear analysis of the judgment and order of the Id. Trial Court it would appear that the Id. Trial Court was more guided by conjecture and surmise than acting on legal proof. Mr. ( 10 ) MR. Ganguly contends that on clear analysis of the judgment and order of the Id. Trial Court it would appear that the Id. Trial Court was more guided by conjecture and surmise than acting on legal proof. Mr. Ganguly submits that it is the established principle of law upheld by the Apex Court of the land through plethora of decisions that in a case where prosecution wants to rely on circumstantial evidence alone and when the Id. Trial Court in its turn wants to accept such circumstantial evidence, it is the duty of the Id. Trial Court to be sure that the prosecution has shown such circumstances which taken together would build up a complete chain of evidence indicating thereby the only one and irresistible conclusion towards the guilt of the accused and there will not be any alternative hypothesis pointing out the innocence of the accused. Mr. Ganguly contends that having regard to the evidence on record it can be safely concluded that the prosecution did not succeed to build up any chain of circumstances leading to the only conclusion of the guilt of the appellant and for this reason the Id. Trial Judge was not justified in sustaining his conviction on the basis of the evidence on record. ( 11 ) MISS Gomes, appearing for the State respondent, has strongly supported the judgment and order impugned in this appeal contending inter alia that the id. Judge was quite justified in placing his reliance on the P. M. report and on the testimony of the doctor conducting the P. M. examination wherefrom it was available that the victim suffered a homicidal death and that the death was due to manual strangulation. ( 12 ) MISS Gomes submits that in this case there is no other possibility of committing the murder of the victim by other than the appellant since the victim being the wife of the appellant was under his custody at the relevant point of time and the alibi taken by the appellant has not been proved by producing any cogent evidence. ( 13 ) MISS Gomes submits that although in this case the prosecution should have examined the daughter of the victim to throw light about the prosecution case but the omission to examine that witness cannot be considered to be fatal point of the prosecution since other witnesses have sufficiently proved that the appellant alone was present in the room where the victim suffered the homicidal death. ( 14 ) WE have perused the entire evidence on record along with the FIR and other exhibited documents on records including the P. M. report. We have also considered the submissions of Mr. Ganguly and Miss Gomes. ( 15 ) UNDOUBTEDLY, from the trend of the prosecution evidence we find that in this case to bring home the charge of murder against the appellant prosecution relied on circumstantial evidence in the form of PWs. 1 to 3 and p. W. 4. ( 16 ) FROM the evidence of PWs. 1 to 3 we do not get a single word to support the prosecution case that at the relevant night the appellant was present in the room where the victim was murdered. Coming to the evidence of P. W. 4, who is the alleged FIR maker, we have strong doubt whether the FIR was scribed by any independent witness or it was the brain-child of the police officer. ( 17 ) THUS, after taking into consideration the statement of P. Ws. 1 to 3 and p. W. 4 we notice that although the deadbody of the victim was found by all of them at the courtyard of the appellant's house, none of them uttered a single word about any quarrel between the appellant and the victim or about the presence of the appellant in the room at the relevant time. ( 18 ) IT is also available both from the FIR as well as from the statement of p. W. 7 that the P. W. 7 had no direct knowledge about the quarrel taken place between the appellant and the victim and he had also no direct knowledge about possible involvement of the appellant behind the commission of the murder of the victim. ( 19 ) IT is true that, according to the P. M. doctor, the death of the victim was due to strangulation but the prosecution must come with clinching evidence to show that it was the appellant alone who was responsible for the death of the victim and the P. M. report itself cannot fix the responsibility of the appellant behind the murder of the victim. ( 20 ) THUS, having regard to the entire facts and the evidence on record, we are convinced that the prosecution miserably failed to build up any chain of circumstances which in its totality would point out the guilt of the appellant and considering this aspect alone, we are further convinced to hold that the learned Judge totally misdirected himself in the matter of appreciation of evidence and this wrong appreciation of evidence led him to hold that the appellant was guilty of murder of his wife. As we cannot subscribe to the view of the Id. Judge having regard to the evidence on record, we cannot support either his order of conviction or the consequential order of sentence. ( 21 ) THUS, we find sufficient merit in the present appeal and we allow the same. ( 22 ) THE order of conviction and sentence passed by the Id. Additional Sessions judge against the present appellant are, therefore, set aside. ( 23 ) LET the appellant be released from his detention in connection with this case and he be released forthwith if he is not wanted in connection with any other case. ( 24 ) INFORM the Superintendent of Baharampore Central Jail/correctional home for immediate release of the appellant by sending a copy of this order forthwith, ( 25 ) SEND a copy of this judgment and order along with the LCR to the Trial court forthwith. Pranab Kumar Deb, J. : I agree. Appeal allowed.