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2005 DIGILAW 411 (GAU)

Kamal Chakraborty v. State of Assam

2005-05-26

BROJENDRA PRASAD KATAKEY, P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. J.M. Choudhury, learned senior Counsel assisted by Mr. B. M. Choudhury appearing for the accused Appellant and Mr. F.H. Laskar, the learned P.P. 2. This appeal is directed against the Judgment and Order dated 5.10.2001 passed by the Sessions Judge, Goalpara in Sessions Case No. 13 of 1998 whereby the accused Appellant was convicted under Section 302/201, IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- in default further imprisonment for six months under Section 302, IPC. The accused Appellant was also sentenced to imprisonment for five years and to pay a fine of Rs. 1,000/- in default further imprisonment for three months under Section 201, IPC. Both the sentences were ordered to run concurrently. 3. The accused Appellant Kamal Chakravorty, for short, Kamal is the husband of Ranu Devi Chakravorty, a Nurse serving at Silchar Medical College. The couple was married some time in the year 1990 and they were blessed with a daughter Lipika Chakravorty (P.W. 1). Ranu Chakravorty was found missing since 4.6.96/5.6.1996 for which a missing entry was given by the husband. Thereafter on 19.11.1996 Pabitra Kumar Bhagabati (P.W. 3), the brother of Ranu filed a written FIR at Dudhnoi Police Station stating inter alia that on June 4th the couple along with the daughter and maid servant Damayanti Boro @ Dulu (P.W. 2) came to Dudhnoi and stayed at the house of Krishna Kanta Bhattachaiyya to attend the marriage ceremony of Ranu's sister at Simulitola scheduled to be held on 12.6.1996 and since then Ranu was missing. It was further stated in the FIR that it has come to the knowledge of P.W. 1 and P.W. 2 that the accused Kamal with the help of Krishna Bhattacharyya killed Ranu Chakravorty and disposed of the dead body by burying the same. Dudhonoi P.S. Case No. 145 of 1996 was registered and it was investigated by police and although police tried to search and recover the dead body it failed. Thus this is a case of Corpus Delicti. 4. During trial before the Sessions Court, the prosecution examined five witnesses and the defence examined two witnesses. On conclusion of the trial, the learned trial Court convicted the accused Appellant Kamal Chakravorty under Section 302/201, IPC and sentenced to imprisonment as stated above. Hence the present appeal. 5. Thus this is a case of Corpus Delicti. 4. During trial before the Sessions Court, the prosecution examined five witnesses and the defence examined two witnesses. On conclusion of the trial, the learned trial Court convicted the accused Appellant Kamal Chakravorty under Section 302/201, IPC and sentenced to imprisonment as stated above. Hence the present appeal. 5. In the present case as stated above, the dead body has not been recovered or found. The prosecution case is that after killing the deceased, the dead body was buried and although attempt was made to recover the same, it could not be found. The defence plea is that the deceased was suffering from mental illness and she has just disappeared and could not be traced out. The law regarding Corpus Delicti was laid down by the Apex Court in the case of Rama Nand v. State of Himachal Pradesh, reported in AIR 1981 SC 738 wherein the Apex Court held as follows: (i) Where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of any eye-witness, or by circumstantial evidence, or by both. But where the fact of corpus delicti, i.e. homicidal death is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definite character unerringly leading to the inference that the victim concerned has met a homicidal death. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. In the instant case, circumstances in their cumulative effect, are not only inconsistent with the innocence of the Appellant, but ineluctably and rationally compel the conclusion that the victim has died and it is the Appellant who has intentionally caused her death. 6. In the later case of Sevaka Perumal v. State of Tamil Nadu, reported in AIR 1991 SC 1463 the Apex Court observed as follows: In a trial for murder it is not absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. 6. In the later case of Sevaka Perumal v. State of Tamil Nadu, reported in AIR 1991 SC 1463 the Apex Court observed as follows: In a trial for murder it is not absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out. It is unlikely that the dead body must be recovered. If recovery of the deal body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed, etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence or murder is proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced. 7. The broad facts of the present case and the relationship between the accused and the deceased are not disputed. On the contrary, these have been admitted by the accused in his statement under Section 313, Code of Criminal Procedure. It is also not disputed that at the relevant period of time, i.e. on 4.6.1996 accused Kamal, his wife Ranu, daughter Lipika (P.W. 1) and the maid servant Damayanti Boro @ Dulu (P.W. 2) stayed in the house of Krishna Bhattachaiyya (since deceased). We also find that Ranu Devi had not been seen since the morning of 5.6.1996. 8. P.W. 1 is a child witness and her age is recorded as seven years at the time of recording of deposition on 21.11.1998. The incident allegedly look place in the month of June, 1998, i.e., two and half years prior to her deposition and at that time she was 4/5 years old as we find that even the marriage of her mother was solemnized in the year 1990 only. P.W. 1 was questioned by the trial Judge before recording her statement. The incident allegedly look place in the month of June, 1998, i.e., two and half years prior to her deposition and at that time she was 4/5 years old as we find that even the marriage of her mother was solemnized in the year 1990 only. P.W. 1 was questioned by the trial Judge before recording her statement. She was a student of Class II at the time of her deposition and she has deposed that while they were at the house of Krishna Bhattacharyya in the evening hours, the said uncle Krishna Bhattacharyya and her father assaulted her mother whereupon the mother requested them not to beat her. The witness further stated that even the maid servant P.W. 2 had assaulted her mother. The witness, however, does not know as to why her mother was beaten and as a result of the beating, her mother died. Later on her mother was taken in a red taxi. 9. Damayanti Boro @ Dulu (P.W. 2) is another girl aged about 18/20 years and she was working in the house of the accused for the last ten years. She was with the couple at Silchar and she came with the couple and P.W. 1 and stayed in the house of D.W. 1. She has deposed that at that time around 8 p.m., when Ranu Baideo and Hiran Bhattacharyya (D.W. 1) returned from shopping, accused Kamal and Krishna Bhattachaiyya were drinking in the drawing room. At that time Ranu was telling something about P.W. 2 before Hiran Baideo (D.W. 1) whereupon accused Kamal and Krishna Bhattacharyya assaulted Ranu Baideo with lathi. Thereafter Kamal gave the lathi to P.W. 2 and asked her to beat Ranu whereupon P.W. 2 gave a stroke. It is stated that the beating went on for an hour and Ranu had bleeding from the head and she died. Thereafter Krishna Bhattacharyya brought a red taxi and put the dead body into it and they carried spade, torches etc. and P.W. 2 also accompanied them in the vehicle. They traveled about one and half miles and at a place like dead channel, they took the body out of the vehicle and sent back the vehicle. The accused Kamal and Krishna Bhattacharyya (since deceased) dug up a pit and buried the dead body. P.W. 2 has also alleged that the accused Kamal used to sexually abuse her since long. 10. The accused Kamal and Krishna Bhattacharyya (since deceased) dug up a pit and buried the dead body. P.W. 2 has also alleged that the accused Kamal used to sexually abuse her since long. 10. Pabitra Kr. Bhagabati (P.W. 3) is the younger brother of Ranu and he is the informant of this case and the FIR was lodged after five months of the incident. Moreover, P.W. 3 had no personal knowledge about the incident. Likewise Bipul Ch. Bhagawati (P.W. 4) is the brother of P.W. 3 and he has also no direct knowledge about the incident and they have deposed about the relationship and the subsequent development and knowledge about the incident from P.W. 1 and P.W. 2. Binoy Kalita (P.W. 5) is the I/O and we find that his evidence is also not of much use. 11. Thus we find that P.W. 1 and P.W. 2 are the two star witnesses of the prosecution and the entire prosecution rests on their testimony, P.W. 1 is a child witness whereas P.W. 2 was around 16/17 years of age when the incident took place. 12. Now coming to the evidence of P.W. 1, we find that this witness was five years old at the time of the incident and she was seven years of age when she deposed before the Court. She has deposed that on the day of occurrence Krishna Bhattacharyya (since deceased) and her father had beaten her mother and thereafter the maid servant Damayanti Boro @ Dulu (P.W. 2) also assaulted the deceased. The witness also stated that the above incident took place in the house of Krishna Bhattacharyya and she had seen the beating herself and later on her mother was taken in a red taxi and since then she had not seen her mother. The witness has not stated anything about the death of her mother due to the above assault/injuries. In cross-examination the witness stated that her mother had left the place at night while she was sleeping and on the next day, another maid servant in the house of Krishna Bhattacharyya informed her that her mother had boarded a vehicle. 13. Likewise P.W. 2 was a maid servant in the house of the accused Appellant. In cross-examination the witness stated that her mother had left the place at night while she was sleeping and on the next day, another maid servant in the house of Krishna Bhattacharyya informed her that her mother had boarded a vehicle. 13. Likewise P.W. 2 was a maid servant in the house of the accused Appellant. She has deposed that while they were staying in the house of Krishna Bhattacharyya, the accused and the owner of the house Krishna Bhattacharyya (since deceased) were drinking liquor and suddenly they picked up altercation with Ranu Baideo when some reference was made to her and both the accused Appellant and Krishna Bhattacharyya assaulted Ranu Baideo with lathi. Thereafter the accused gave a lathi to her and asked her to beat Ranu Baideo and accordingly P.W. 2 also assaulted the deceased once. According to this witness, the beating went for one hour and Ranu died later on. The dead body of Ranu was put into a vehicle and it was taken away. She was asked to accompany the vehicle and near a dead water channel, the dead body was brought out and the vehicle was sent back. Subsequently the accused and Krishna Bhattacharyya dug up a pit and buried Ranu Baideo's body in her presence and thereafter they came out. The witness has also stated that the accused Appellant used to have sex with her after she attained puberty. She used to reside in the said house of the accused for nearly 10 years. 14. Now coming to the evidence of P.Ws. 1 and 2 we find that according to these two witnesses the incident had taken place some time in the month of June, 1996. These two witnesses remained with the accused for about 5/7 days time and thereafter the accused left for Silchar and these two witnesses were living with the informant Pabitra Kumar Bhagawati. But surprisingly enough they did not say anything or reported anything about the alleged assault or death of Ranu at the hands of the accused. The matter was allegedly disclosed by them before P.W.3 after more than five months of the incident. It is, therefore, submitted that the evidence of the eye-witnesses about disclosing of the tragic incident of murder after lapse of more than five months cannot be accepted as true version. 15. The matter was allegedly disclosed by them before P.W.3 after more than five months of the incident. It is, therefore, submitted that the evidence of the eye-witnesses about disclosing of the tragic incident of murder after lapse of more than five months cannot be accepted as true version. 15. In the case of Sonia Behra v. State of Orissa, reported in AIR 1983 SC 491 the Apex Court observed that the conduct of the witnesses is not tallying with the incident and on the date of the incident also makes their evidence not worthy of acceptance. The above view was interpreted in the case of Dalmia Swarup v. State of T.N. reported in 1986 (SC) 593. In the case of Kehar Singh (Indira Gandhi murder case) reported in AIR 1988 SC 1883 the Apex Court observed that where an occurrence took place on 31.10.1984 and the statement has come from the witnesses for the first time on 21.12.1984, in view of the settled criminal jurisprudence of this country the evidence should have been rejected outright. Likewise in the case of State of Karnataka v. Venkata, the delay of three days has cast a serious doubt about the genuineness of the prosecution case. 16. The law has provided that in case the prosecution comes up with sufficient explanation for non-divulging, the Court may consider the same to appreciate the evidence of such witnesses. 17. In this case, the prosecution has not come up with any explanation as to why P.Ws. 1 and 2 remained mum for long five months. This is not a case where P.Ws. 1 and 2 were under the custody of the accused Appellant or for fear of the accused Appellant they remained mum. The evidence on record clearly shows that during this entire period of five months, both P.Ws. 1 and 2 were residing with the informant and thus there was no question of fear psychosis for non-disclosure on the part of P.Ws. 1 and 2. Admittedly P.W. 1 was a minor girl but the fact remains that all the family members during the period were searching for her mother as she was missing and she used to attend school and P.W. 2 was residing with the informant. 1 and 2. Admittedly P.W. 1 was a minor girl but the fact remains that all the family members during the period were searching for her mother as she was missing and she used to attend school and P.W. 2 was residing with the informant. At this stage, we may recapitulate the observations of the Apex Court in the case of Alii Mollah v. State of W.B. reported in (1996) 5 SCC 369 as follows: That the entire case revolves around and rests on the testimony of P.W. 3 only is not in doubt. It is now well established that conviction can be based on the testimony of a single eye-witness provided the Court finds from the scrutiny of his evidence that he is a wholly reliable witness. Where, however, the Court is of the opinion that the single eye-witness is only partly reliable, prudence requires that corroboration of his testimony in material particulars should be sought before recording conviction. On his own showing P.W. 3 was an employee of the deceased. He was present according to his testimony, when the deceased was assaulted by the Appellants. He admits that after committing the crime the Appellants and their associates fled away. The witness, however, not only did not raise any alarm when his master was being assaulted, he did not go near his employer even after the assailants had fled away to see the condition in which the employer was after having suffered the assault. According to him he got frightened and fled away to his home. He also admitted in his cross-examination that neither at his home nor in the village did he disclose what he had seen in the evening of 4.2.1982. The witness, however, tried to take shelter on the plea that he was frightened and therefore till he appeared before the police, he did not pick up courage to inform anyone either in the village or on the brick-fields regarding the occurrence. This plea does not impress. It is not understandable why the witness who was in the village did not appear before the Investigating Officer, when he was camping in the village throughout the night or even the next morning. No explanation whatsoever has been offered by him. This plea does not impress. It is not understandable why the witness who was in the village did not appear before the Investigating Officer, when he was camping in the village throughout the night or even the next morning. No explanation whatsoever has been offered by him. P.W. 3, in view of his unexplained silence, delayed statement to the police and relationship with the deceased, therefore, does not appear to be a wholly reliable witness. There is no corroboration of his evidence from any other independent source either. In the absence of any corroboration of his testimony, it is unsafe to rely upon the evidence of P.W. 3 only to up hold the conviction and sentence of the Appellants. Consequently, this appeal succeeds and is allowed. The conviction and sentence of the Appellants is hereby set aside. 18. As stated above, the present case is a case of corpus delicti and even the dead body is not before us. Further, we find that the evidence of P.W. 2 stands negated to a great extent from her own evidence as well the evidence of the I.O. P.W. 2 claims that she was present at the site where the dead body was buried and subsequently she led police for recovering the dead body. Police took all efforts and dug up the place but the dead body could not be recovered. Hence, non-recovery of the dead body casts a doubt as regards the reliability of the statement of P.W. 2. 19. It has also been submitted by the learned Counsel for the accused Appellant that this witness P.W. 2 was an accomplice as she herself claims that she also assaulted the deceased with a lathi brought by the accused. It has also been submitted that the witness might have cooked up a story as she had allegedly grievance against the accused Appellant as because she was sexually exploited by the Appellant. We find force in the above submission. 20. So far the missing of Ranu Chakravorty is concerned, the defence has come up with a plea that Ranu was suffering from some mental disorder. We find force in the above submission. 20. So far the missing of Ranu Chakravorty is concerned, the defence has come up with a plea that Ranu was suffering from some mental disorder. On an earlier occasion she had tried to commit suicide and although she came to Dudhnoi along with the accused Appellant she left the house of Krishna Bhattacharyya and Hiran Bhattacharyya (D.W. 1) in the morning of 5.6.1996 and thereafter she did not return back and her whereabouts are not known. In support of the said plea, the defence had examined two witnesses namely Hiran Bhattacharyya (D.W. 1) and Rashmi Nath (D.W. 2). D.W. 2 was working as household worker in the house of D.W. 1 at the relevant point of time. D.W. 1 has deposed that the accused is his elder brother and the deceased accompanied by P.Ws. 1 and 2 came to their house on 4.6.1996 to attend the marriage ceremony of their sister Dipali Chakravorty at Simalitola. It is stated that on 6.6.1996 Ranu who is his sister-in-law being the wife of the accused, left her residence while she was asleep and thereafter she was missing. D.W. 2 has deposed that she was working at the house of D.W. 1 for long 50 years. She used to come at 6 a.m. and leave by 4 p.m. She has deposed that on 6.6.1996 around 6 a.m., she came to the house of D.W. 1 and after finishing her duty she met Ranu, the wife of the accused Appellant on the road and on being asked by Ranu, she helped her to board a bus for Guwahati. Then it was raining and she gave her umbrella to Ranu and on returning home she conveyed this matter to Hiran and his family. 21. P.W. 1 has also deposed about reporting to her by D.W. 2 that her mother had gone to Guwahati by boarding a bus. It is also admitted by D.W. 2 that in her cross-examination she admits that on the next day morning itself she was informed by D.W. 2 about Ranu's boarding a bus for Guwahati. Thus from the evidence of D.W. 1 and D.W. 2 we find that Rasdhmi Nath (D.W. 2) was working as a maid servant and she had informed about the matter to the family members soon after she had escorted Ranu to board a bus. Thus from the evidence of D.W. 1 and D.W. 2 we find that Rasdhmi Nath (D.W. 2) was working as a maid servant and she had informed about the matter to the family members soon after she had escorted Ranu to board a bus. Thus we find absolutely no material to disbelieve the evidence of D.W. 2. The trial Court has discarded the evidence of D.W. 2 by stating that definitely, a maid servant can be easily tutored by the accused. We find that the trial Court has adopted two different standards for appreciating the evidence on record in violation of the settled principles of law. If the above observations are true in respect of D.W. 2, it also squarely applies in case of D.W. 2 who was also a maid servant. The defence plea is that D.W. 2 had reported the matter immediately to all persons including P.W. 1 and P.W. 2 whereas P.W. 2 remained mum for long five months before coming up with a story of assault etc. On comparing the evidence of D.W. 2 and P.W. 2, we find that the evidence of D.W. 2 stands in better footing and is more reliable. At this stage, it will be apt to quote the observations of the Apex Court in the case of Dudh Nath Pandey v. State of U.P. reported in AIR 1981 SC 911 wherein it was observed as follows: Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witness. 22. In the present case, as stated above, the evidence of P.W. 1 as well as P.W. 2 suffers from infirmities as both these witnesses remained mum for more than five months in reporting about the alleged incident of assault. On the other hand, we find that the evidence of D.W. 1 and D.W. 2 does not suffer from any such infirmities. Moreover, the law is well settled that so far the prosecution is concerned, it requires to prove the case from all reasonable doubt. We find that the defence may succeed if it can show that the defence plea or the defence version of the incident is a probable version. Moreover, the law is well settled that so far the prosecution is concerned, it requires to prove the case from all reasonable doubt. We find that the defence may succeed if it can show that the defence plea or the defence version of the incident is a probable version. Hence, we have no hesitation to hold the learned trial Court failed to appreciate the evidence in proper perspective and threw out the defence evidence without any justifiable reasons. Furthermore, in the present case, we find absolutely no corroboration to the testimony of P.W. 1 and P.W. 2 and their evidence cannot be held to be wholly reliable as the wife of the accused is missing. There maybe scope for suspicion and such suspicion cannot take place in convicting the accused Appellant. We find that there is no proof that the accused Appellant had killed his wife and disposed of the dead body. 23. In the result the appeal is allowed. The conviction and sentence entered into by the learned trial Court is set aside. The accused Appellant is acquitted and he is set at liberty forthwith. The accused Appellant shall be released from the jail custody forthwith, if not wanted in connection with any other case. Appeal allowed.