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2005 DIGILAW 716 (CAL)

Sital Gupta v. STATE OF WEST BENGAL

2005-11-28

AMIT TALUKDAR, SANKAR PRASAD MITRA

body2005
Judgment : SANKAR PRASAD MITRA (1.) This appeal is directed against the judgment and order of conviction dated 20th April, 2001 and sentence dated 23rd April, 2001 passed by the learned Session Judge, Second Court at Siliguri, District Darjeeling in connection with Sessions Case No. 73(S) of 1999 arising out of Siliguri P.S. Case No. 429 dated 15th November, 1990. By the said judgment appellant was convicted and sentenced under Section 304 Part I of Indian Penal Code to undergo rigorous imprisonment for a period of 10 years and also to pay a fine of Rs. 1,000/- (one thousand) in default to undergo imprisonment for a period of 4 months with a direction to set off the period of detention undergone by him during the enquiry and trial. The learned Judge in arriving at the conclusion as to the guilt of the appellant heavily relied upon the circumstantial evidence and ultimately convicted him and passed sentence indicated above. (2.) Being aggrieved by the said order this appeal has been preferred by the appellant with a prayer to set aside the order of conviction and sentence. (3.) The prosecution case stated in brief is that on 15th November, 1990 in between 9.30 and 10.00 a. m. the accused Sital Gupta had an altercation with his brother Kamal Gupta followed by assault inside their own house and in the process Sital Gupta stuck a blow with a sharpened weapon on the person of Kamal Gupta and flew away from the place. Kamal Gupta, the victim was lying in the said house in a pool of blood. On hearing hue and cry initiates of the house and local people assembled there and on hearing about the incident in the market the de-facto complainant Amal Gupta rushed to the house and with the help of local people removed the victim Kamal Gupta to hospital where doctor after examining Kamal Gupta declared him dead. On the basis of this complain Siliguri P. S. started Case No. 429 of 1990 dated 15th November, 1990. The I.C. endorsed the case to Debobrata Ojha, S.I., Police for causing investigation. The inquest of the dead body of the victim, Kamal Gupta was held by the S. I., Hem Chandra Roy at Siliguri hospital and the dead body was sent to North Bengal Medical College and Hospital for post mortem examination. The I.C. endorsed the case to Debobrata Ojha, S.I., Police for causing investigation. The inquest of the dead body of the victim, Kamal Gupta was held by the S. I., Hem Chandra Roy at Siliguri hospital and the dead body was sent to North Bengal Medical College and Hospital for post mortem examination. The I. O. during the course of investigation visited the P. O., recorded the statement of witnesses, seized articles under three seizure lists and collected report of chemical examiner etc. and thereafter he made over the case to I. C. on receiving the transfer order and ultimately S.I. Srimanta Barman submitted charge-sheet against the accused under Section 302 of I. P. C. (4.) The accused (appellant) stand charged under Section 302 of I.PC. but ultimately he was convicted and sentenced under Section 304 Part I of I.P.C. (5.) In the instant case the Court below had examined 14 witnesses and exhibited some documents vide (Exhibit 1 to 11).The defence took the plea of innocence and adduced no evidence from his side. (6.) Point for consideration. (i) Can we sustain the order of conviction and sentence imposed upon the appellant? (7.) In this case the learned Judge while arriving at a conclusion as to the guilt of the appellant heavily relied upon the circumstantial evidence. According to him the chain of circumstances is so much solid pointing guilt of the accused there is no scope to think otherwise. But in the judgment the learned Judge did not spell out the circumstance in detail showing conclusively the involvement of the accused with the alleged offence. (8.) It is well-settled that when a case is based on circumstantial evidence, such evidence must satisfy at least the following tests. (i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) These circumstances, should have definite tendency unerringly pointing towards the guilt of the accused; (iii) These circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none-else. (9.) Circumstantial evidence should not only be consistent with the guilt of the accused, but should also be inconsistent with his innocence. Such circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. (9.) Circumstantial evidence should not only be consistent with the guilt of the accused, but should also be inconsistent with his innocence. Such circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. (10.) Admittedly there is no eye-witness of the incident of murder. In this case the victim is Kamal Gupta brother of Amal Gupta. At the time of occurrence of incident, which took place in the house of the victim there was P. W. 2, Rama Gupta (Boudi) and Shantilata Gupta (Mother) of the victim. Shantilata Gupta, mother of the victim could not be examined in this case as she expired and Rama Gupta, P. W. 2 being declared hostile by the prosecution did not say anything about the involvement of the accused in committing the offence of murder. The F.I.R. maker, Amal Gupta was not admittedly in the house when the actual murder took place, he was then in the market. It is stated by him that he signed the complaint, (Exhibit I) without knowing the contents thereof because it was not read over and explained to him. The evidence does not show that he dictated P.W.10 Dipak Hore Roy to write the complaint. The evidence of P. W. 1 declared hostile of the prosecution does not show that he saw the incident of murder but he took the injured Kamal to hospital for treatment. The testimony of P.W. 10, resident of Hakimpara has admitted in his evidence that in the written complain there was no noting that the complain was read over and explained to P.W. 1, Amal Gupta by him. It is stated by him that about 100 people assembled at the Place of Occurrence, (the house of the victim shown as E in Exhibit 11) and they were passing comments on their own impressions. And it is admitted by him that he did not visit the spot on that date, although, he signed the carbon copy of the inquest report at the place of occurrence, the (Exhibit 8), which had been conducted by P.W. 13, at Siliguri hospital morgue. Therefore presence of Dipak Hore Roy P. W. 10 in the context of evidence adduced by P. W. 1 and P.W. 13 becomes doubtful. Therefore presence of Dipak Hore Roy P. W. 10 in the context of evidence adduced by P. W. 1 and P.W. 13 becomes doubtful. P. W. 1 never dictated P. W. 10 to write the complain therefore the statement of P. W. 10 to the effect that under the dictation of P. W. 1 he wrote the complain when his presence at the P. O. is doubtful becomes a myth. There is nothing in the evidence of P. W. 1 that he lodged the complain at the Police Station and the prosecution could not examine the police officer who recorded the F.I.R. and started the case. It is only P.W. 12, Debobrata Ojha who proved the formal F.I.R. which does not disclose the real state of affairs indicated above. In fact, the evidence of P.W. 1 does not support the contents of the F.I.R. (11.) It is true that the victim Kamal Gupta was killed. The P. M. report, (Exhibit 2) which has been proved by Dr. Saibal Gupta, P. W. 4 shows that he found incised penetrating wounds 1/2" x 1" muscle deep into vessel into bone over left thai front and inner aspect and 4" above left knee joint. The Doctor has opined that the death of the victim was due to the effects of haemorrhagic shock as a result of injury ante mortem and homicidal in nature. The I. O. in course of investigation seized wearing apparel of the deceased, P. M. Blood, blood stained knife etc. under different seizure list on different dates and some of the articles were sent to chemical examiner for examination report and the report was obtained vide (Exhibit 3), proved by P. W. 5 Hari Das Maitra. The oral testimony of P. W. 12 Debobrata Ojha shows that he seized articles on different date vide (Exhibit 4 series, Exhibit 6 series and Exhibit 10). This Exhibit 10 (seizure list) shows that P.W. 12 seized from the possession of the accused some blood-stained cement, floor cement and one blue colour blood stained lungi in presence of Rama Gupta, P.W. 2 and Sumit Das P.W. 11 and it bears the signature of the accused Sital Gupta. Seizure list witnesses in their testimony did not speak a word about seizure of articles from the house of the accused. Seizure list witnesses in their testimony did not speak a word about seizure of articles from the house of the accused. But this seizure list bearing signature of the accused shows that he was present in the house on 15th November, 1990 at 14.25 hrs. On 15th November, 1990 at 22.05 hrs. P. W. 12 also seized at PS. one blood stained chakku having 10" handle in presence of witness Sumit Das P.W. 11 and D.C. Sarkar, Constable No. 1499 P.W. 7. which bears the signature of the accused. The P.W. 11 did not speak anything about seizure of such article at P. S. from the possession of the accused. D. C. Sarkar, RW. 7, however, stated about recovery of one knife from the possession of the accused under seizure list, (Exhibit 6 series) but the said knife was not sealed and labeled in his presence and it was not produced during trial. From his evidence it is found that no blood stained knife was seized. The other seizure list (Exhibit 4 series) proved by P. W. 12 shows seizure of snuff colour blood stained fullpant, one blood-stained white shirt and P.M. blood as produced by Chittoranjan Roy, Constable No. C190 in presence of Subrata Roy and Mantu Paswan not examined in this case. (12.) Now the question is on 15th November, 1990, P. W. 12 at 14.25 hrs. recovered some articles mentioned in the seizure list (Exhibit 10) from the house of the accused when the accused was present who duly signed the seizure list. But on the same date on 22.05 hrs. P.W. 12 recovered one blood stained knife at PS. from the possession of the accused under a seizure list on the (Exhibit 6 series). But the question is when P.W. 12 who was practically investigating the case recovered some articles under seizure list (Exhibit 10 series) duly signed by the accused, what prompted him to seize blood stained knife from the possession of the accused at P.S. on 15th November, 1990 at 22.05 hrs. vide (Exhibit 6) series. A comparative study of Exhibit 6 series and 10 series including the testimony of other witnesses go to show that the accused was present on 15th November, 1990 at 14.25 hrs. in his house and at that time no knife was recovered from the possession of the accused. The evidence of P.W. 12 in this connection remains unexplained. A comparative study of Exhibit 6 series and 10 series including the testimony of other witnesses go to show that the accused was present on 15th November, 1990 at 14.25 hrs. in his house and at that time no knife was recovered from the possession of the accused. The evidence of P.W. 12 in this connection remains unexplained. The seizure of blood stained knife from the possession of the accused at P.S. vide (Exhibit 6) series in the context of evidence adduced by P.W. 11 and P.W. 7 simply show that no blood stained knife was recovered from the possession of the accused. The (Exhibit 6) series prepared by the officer shows interpolation and addition of facts in different ink, which makes the entire seizure doubtful. That apart (Exhibit 3) series proved by P.W. 5 Hari Das Moitra shows that item No. 20 knife scrapings, which according to prosecution case contains blood-stain is disintegrated and their origin cannot be determined. In respect of item No. 19 shirt cuttings, the result of the test is inconclusive. In respect of item No. 18, fullpant cuttings, the result is unstained control not available. In respect of item No. 16 floor scrapings, item No. 17 lungi cuttings, item No. 21, blood soaked in guage, the same was found not sufficient for test. (13.) So the result of the said test does not show that the seized knife contains human blood and in view of the evidence of P.W. 7 D. C. Sarkar no blood stained knife was seized. So the step taken for finding blood stain from the knife was unexpected from the very beginning. There is no explanation how the accused went to P.S. with a knife when he was arrested. There is no explanation in the evidence of P.W. 12 that when he seized the articles under (Exhibit 10) whether he found the accused in the house with the knife. Therefore, doubtful recovery of knife from the possession of the accused and the report of chemical examiner of the said knife do not support the prosecution case that the said knife was used for killing the victim, Kamal Gupta. It is evidently clear that there is no evidence direct or circumstantial to show that the accused killed his brother Kamal Gupta. There is also no proof that the seized knife not produced in the case was used for killing the victim. It is evidently clear that there is no evidence direct or circumstantial to show that the accused killed his brother Kamal Gupta. There is also no proof that the seized knife not produced in the case was used for killing the victim. (14.) Therefore, in this case the prosecution could only prove that the death of Kamal Gupta was homicidal but, the prosecution has failed to prove by adding direct or circumstantial evidence that it is the accused (appellant) who actually killed the victim. (15.) Thus, considering the facts and circumstances of this case we are of the view, that the order of conviction and sentence imposed upon the appellant cannot be sustained and it should be set aside. (16.) The appeal is accordingly allowed. The order of conviction and sentence imposed upon the appellant, convict in C.A. 311 of 2001 is hereby set aside. The appellant be acquitted and set at liberty at once.