Research › Search › Judgment

Calcutta High Court · body

2007 DIGILAW 703 (CAL)

ARUN DEBNATH v. STATE OF WEST BENGAL

2007-09-10

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

body2007
GIRISH CHANDRA GUPTA, J. ( 1 ) ARUN Debnath, son of Shri Panchu Debnath, Shri panchu Debnath, Sanath Debnath, both sons of Shri Harekrishna Debnath and harekrishna Debnath, son of late Rajani debnath, all residents of village-Satghara within territorial jurisdiction of Mathurapur police Station in the district of 24 Parganas (South) were charged under Section 302 read with Section 34 of the Indian Penal Code, for causing death of one Nabin Haider, aged about 17 years, son of Shri Amar Haider, as also under Section 201 read with section 34 of the Indian Penal Code for concealing the body of the deceased in a septic tank, situate at the backside of the house of the accused persons. The learned Special Court (E. C. Act) and Additional District and Sessions Judge, Alipore, 24 Parganas (South)in Sessions Trial No. 2 (2) 2003 by a judgment dated 29th July, 2005 has convicted all the accused persons against both the offences and by an order dated 30th July, 2005 sentenced, under Section 302 read with Section 34 of the Indian Penal Code, the accused persons to life imprisonment as also to pay a sum of Rs. 1,000/- on account of fine and in default, to suffer further six months rigorous imprisonment. The accused persons were also sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 1,000/- each, in default, to undergo further rigorous imprisonment for six months' for the offence under section 201 read with Section 34 of the Indian Penal Code. Both the sentences were directed to run concurrently. The convicts have come up in appeal. ( 2 ) THE appeal was admitted by an order dated 6th September 2005. On 8th February 2006 an order granting bail to Arun debnath and Harekrishna Debnath was passed. The prayer for bail made by Panchu debnath and Sanath Debnath was, however, rejected. On 8th February, 2006 the appellants brought to the notice of a Division bench of this Court that it would appear from the examination made under Section 313 of the Cr. P. C. that the accused Arun debnath at the material point of time was less than 18 years old. Accordingly an order was passed directing the learned trial Court to make an enquiry and to ascertain the age of Arun Debnath, the appellant No, 1, on the date of the incident and to submit a report. P. C. that the accused Arun debnath at the material point of time was less than 18 years old. Accordingly an order was passed directing the learned trial Court to make an enquiry and to ascertain the age of Arun Debnath, the appellant No, 1, on the date of the incident and to submit a report. On the basis of the records of the school Board it was submitted by Mr. Bose, learned Advocate appearing for the appellants that on the date of occurrence the first appellant was a minor and therefore he could not have been directed to undergo imprisonment. We shall consider this point if occasion arises at the appropriate stage. ( 3 ) THE case of the prosecution briefly stated is as follows :- "on 24th August, 2002 Arun called at the house of the de facto complainant who is the father of the victim Nabin. Arun requested Nabin to go to his house. Nabin, however, did not go. At about 7. 45 p. m. Arun once again came and requested Nabin to go to his house. This time Nabin went to his house on the pretext that he was going to bring a khatha from Arun's house. Nabin thereafter did not come back. On 25th August, 2002 a missing diary was lodged. The dead body of Nabin was recovered on 31st august, 2002 from the dug-well tank of a house adjacent to the house of the accused persons. It is alleged that the accused persons in a pre-planned manner committed murder of the minor Nabin "fearing some family secrets of the accused to be divulged" . ( 4 ) THE only point for our consideration is "how far has the prosecution been able to bring home the charges levelled against the accused persons?" ( 5 ) THE post-mortem was held on 2nd september, 2002. The medical opinion is that the death by strangulation must have taken place 10-12 days prior to the date of post-mortem examination, On that basis nabin appears to have died on 24th August 2002. The undisputed fact is that Arun and nabin were classmates and were reading in the same school right from class V. On 24th august, 2002 both Arun and Nabin were the students of class XII. On 25th August, 2002 a missing diary was recorded at 10. The undisputed fact is that Arun and nabin were classmates and were reading in the same school right from class V. On 24th august, 2002 both Arun and Nabin were the students of class XII. On 25th August, 2002 a missing diary was recorded at 10. 25 hours in the local police station, the relevant part whereof reads as follows :- "one Amar Haider, son of late Haridas of sathghara, RS. Mathurapur called at P. S, and reported that on 24th August, 2002 at about 19. 45 hours his son namely Nabin haider left his house for bringing khata from the house of Arun Debnath. The complainant searched him all probable places but to no good. . . . . . . . " ( 6 ) A missing diary is also stated to have been lodged with the CID at Bhawani bhawan but that has not been exhibited, ( 7 ) P. W. 1, the father of the victim deposed that Arun came to their house at about 6 p. m. and requested Nabin to go to his house but Nabin did not go although he had agreed to go. At 7. 45 p. m. according to, p. W. 1, Arun once again came. This time nabin accompanied him on the plea that he was going to bring a khatha. In cross-examination, p. W. 1 has admitted that he did not in his statement recorded under Section 161 of cr. P. C. inform the police about arun's calling to the house of Nabin and requesting him to go to the house of the former, ( 8 ) P. W. 2, a cousin of the victim, P. W. 7 and P. W. 9 both uncles of the victim deposed that at about 8. 45 p. m. upon enquiry the inmates of the house of Arun hesitated to give any clear-cut answer. They, as a matter of fact, denied that Nabin had come but at 11 p. m. the female members of the family of Arun told that Nabin had come but he left. ( 9 ) P. W. 8, Neelkamal Mukherjee, an independent witness, deposed that he had seen Nabin and Arun together at about 8. 05 p. m. on 24th August, 2002 in front of a ration shop of Prasanta Roy. ( 9 ) P. W. 8, Neelkamal Mukherjee, an independent witness, deposed that he had seen Nabin and Arun together at about 8. 05 p. m. on 24th August, 2002 in front of a ration shop of Prasanta Roy. P. W, 10, another cousin of the victim, deposed that in the evening of 24th August, 2002 Nabin told him that he was proceeding to Arun's house. ( 10 ) THE evidence of the family members discussed above appears to be mutually destructive of each other. P. W. 10 claims to have seen Nabin in the evening. He further claims to have been told by Nabin that he was going to Arun's house. The evidence of p. W. 1 the father of the victim cannot in that event be believed that at 6 p. m. Arun called at their house and requested Nabin to go with him nor can his further evidence that arun once again came at 7. 45 p. m. to call nabin can be believed because Nabin at that time, according to the evidence of P. W. 10, v/as not at home. The story that Arun came twice to call Nabin on 24th August, 2002 first at 6 p. m. and secondly at 7. 45 p. m. is also not there in the missing diary which we already have noticed. Nor was this disclosed by P. W. 1 in his examination under Section 161, Cr. P. C. ( 11 ) THERE is evidence of P. W. 8, an independent witness, who deposed that at 8. 05 p. m. on 24th August, 2002 he found Nabin and Arun together in front of the ration shop of Prasanta Roy. The evidence of Neelkamal mukhrjee finds corroboration from the evidence of Dilip Haider (P. W. 13) who is an uncle of the victim. He deposed that he met nabin at 8 p. m. on 24th August, 2002. According to him Nabin told him that he was going to Arun's house. It is, therefore, likely that at 7. 45 p. m. as originally stated in the missing diary Nabin left his house. At 8 p. m. he met his uncle (P. W. 13) on the road. At 8. 05 p. m. Arun was seen in the company of nabin by Neelkamal Mukherjee, the P. W. 8. It is, therefore, likely that at 7. 45 p. m. as originally stated in the missing diary Nabin left his house. At 8 p. m. he met his uncle (P. W. 13) on the road. At 8. 05 p. m. Arun was seen in the company of nabin by Neelkamal Mukherjee, the P. W. 8. The deposition of P. W. 1 that Arun had come to their house twice to call Nabin does not appear to be believable. ( 12 ) P. W. 3, Purna Jalani a worker of p. W. 1 has deposed that he along with Sukumar (P. W. 7), Shyamal (P. W. 2) and Prasanta (P. W. 10) went to the house of the accused persons at about midnight but none of the male members was found there. He also has deposed that while he and his companions were coming back they heard a sound emanating from the bamboo garden, situate in front of the house of the accused persons. When torchlight was focused upon them all the four accused persons were found leaving the bamboo garden. They were dressed in dhuti, gamcha, lungi etc. ( 13 ) P. W. 7 Sukumar Haider deposed that he along with others tried to find out the missing boy Nabin and searched all possible places. He deposed to have seen the accused persons proceeding to their house at about 12 p. m. on 24th August, 2002. He said nothing as to how were they dressed. ( 14 ) P. W. 2 Shyamal Haider a cousin of the victim deposed that when he heard that nabin had not come back, he went to the railway Station seeking Nabin but he was not found. At about 11 p. m. in the night of 24th August, 2002 when he was returning home he felt a sound originating from a bamboo bush, situate in front of the house of the accused persons. He enquired as to who were there, to which he got the reply that those persons were searching the missing boy of the Haider family. P. W. 2 claims to have focused his torchlight and saw the accused persons who were leaving the place at that point of time. He enquired as to who were there, to which he got the reply that those persons were searching the missing boy of the Haider family. P. W. 2 claims to have focused his torchlight and saw the accused persons who were leaving the place at that point of time. According to him, on the following day that is 25th August, 2002 at about 6 a. m. when he resumed his quest he found Panchu Debnath, father of Arun, at the self-same place where he had found panchu in company with the other accused persons at 11 p. m. on the last night that is 24th August, 2002. He has added that panchu's being seen at that place at 6 a. m. in the morning was rather unusual. He also added that on seeing him Panchu fled away on the plea that he had to answer the nature's call. ( 15 ) P. W. 10 deposed that on the fateful night he accompanied by the local people searched all possible places to find out nabin. In the midnight he found four persons standing suspiciously near a bamboo bush wearing napkin and lungi. He subsequently added that those four persons were the accused persons. He denied the suggestion that he did not tell the police about the same in his statement. No contradiction was sought to be obtained from P. W. 16, the I. O. in this regard. ( 16 ) P. W. 3 deposed that he along with p. Ws. 2, 7 and 10 together had gone to search the missing boy Nabin. He further deposed that when they were returning from the house of Arun, the accused persons were seen leaving the bamboo garden. Although the party did not find any of the male members at home who could be interrogated about Nabin but strangely enough when they were found according to the P. W. 3 no question as regards Nabin was put to them. Stranger part is that the P. Ws. 2, 7 and 10 did not support the version of the P. W. 3. According to P. W. 2 he alone had gone searching Nabin to the Railway Station and on his return he saw the accused persons in the bamboo garden. The P. W. 16 I. O. wholly contradicted the version of P. W. 2. 2, 7 and 10 did not support the version of the P. W. 3. According to P. W. 2 he alone had gone searching Nabin to the Railway Station and on his return he saw the accused persons in the bamboo garden. The P. W. 16 I. O. wholly contradicted the version of P. W. 2. No such thing was stated by P. W. 2 in his examination under Section 161, Cr. P. C. P. W. 7 deposed that he accompanied by others had gone to search Nabin. Who were the "others" however has not been disclosed by him. He did not include the P. Ws. 2, 3 and 10 amongst the "others". He deposed that he found the accused persons proceeding towards their house at about 12 p. m. but he did not ask them a word about Nabin. He did not also talk about the accused persons having been found near the bamboo garden. In his cross-examination he admitted that he did not go anywhere to find out nabin on the fateful night. We therefore are of the view that the evidence of P. Ws. 3 and 7 on the subject in unreliable. ( 17 ) THE evidence of P. W. 10 however appears to have some grain of truth in it when he deposed that he found four persons, wearing napkin and lungi, standing suspiciously near the bamboo bush in the midnight on the date of occurrence i. e. 24th august, 2002. On that day significance of the bamboo bush was not known to any one. He naturally did not attach any importance to that scene and came back home. On behalf of the defence no contradiction in the evidence of P. W. 10 was sought to be obtained from the I. O. (P. W. 16 ). ( 18 ) AT the first instance P. W. 10 deposed about four persons having been seen by him near the bamboo bush. Subsequently he added that the accused persons were those four persons. If the accused persons were those four persons, it is inconceivable that p. W. 10 would not have asked them about nabin. He knew that Nabin had gone to the house of the accused persons. He was at that time searching Nabin. If he really had met the accused persons he could not have simply come back home without asking them anything about Nabin. He knew that Nabin had gone to the house of the accused persons. He was at that time searching Nabin. If he really had met the accused persons he could not have simply come back home without asking them anything about Nabin. We are, in the circumstances, inclined to hold that P. W. 10 saw or may have seen four persons standing suspiciously near the bamboo bush. The deposition that those four persons were the accused persons themselves is, however, not believable. ( 19 ) THERE are two letters dated 29th march, 2002 and 25th June, 2002 respectively. They were duly proved by the P. W. 1 under section 47 of the Evidence Act. P. W. 1. deposed that the letters dated 29th March 2002 and 25th June, 2002 were written by arun to Nabin. He further deposed that he was acquainted with the handwriting of Arun which is believable regard being had to the fact that these two boys were classmates, reading in the same school for last 7/8 years and the evidence is that they have been interchanging their notebooks. The learned trial Judge, however, did not mark these letters as exhibits which according to us was an erroneous decision. He marked these documents for identification as 'x1' and 'x2'. Subsequently those letters were referred to the handwriting expert who in his evidence and in his report has stated that both these letters were written by the same person. ( 20 ) THE letter dated 25th June, 2002 is very significant. The contents of this letter suggests that some bitterness had developed between Nabin and Arun which had estranged the friendship. Arun has complained in his said letter that the love of Nabin was dirty. He has also made him responsible for losing the love of the members of his family. Nabin is dubbed, in the letter, a 'papi' in the society. The letter, however, ends with an attempt on the part of Arun to convince nabin that the former is the real friend of the latter. ( 21 ) UNCONTROVERTED evidence on the record is that one and a half months before 24th August, 2002 Nabin was detained in the house of the accused persons and he was ultimately recovered from the room of arun. The letter dated 25th June, 2002 was less than two months old on 24th August, 2002. ( 21 ) UNCONTROVERTED evidence on the record is that one and a half months before 24th August, 2002 Nabin was detained in the house of the accused persons and he was ultimately recovered from the room of arun. The letter dated 25th June, 2002 was less than two months old on 24th August, 2002. Therefore the act of detaining or hiding Nabin followed the letter dated 25th june, 2002 in close succession. ( 22 ) THE de facto complainant, the P. W. 1, who is also the father of the victim in his first information report indicated that Nabin has been killed by the accused persons in order to prevent the family secrets being divulged. What is that secret has not been disclosed. As a matter fact, this aspect was not even touched at the trial. Why was Nabin called a 'papi' by Arun in his letter dated 25th June, 2002 has also remained a mystery. P. W. 9, the aunt of the victim has deposed that Nabin used to spend most of his time in the house of Arun. She, however, did not disclose as to whether there had been any change in the behaviour of Arun and nabin in the recent past. P. Ws. 1 and 10 deposed that there was very good relationship between Arun and Nabin. They also have not indicated as to whether there was any change in their relationship during the last two or more months. This, in our opinion, is an attempt to suppress the truth. Bitterness in the relationship between the friends is self-evident still an erroneous impression was given that their relationship was very good. ( 23 ) IT is not believable that in spite of detention of the victim in the house of the accused persons and ultimate recovery of the victim from the room of Arun, the relationship continued to remain the same. We, therefore, are inclined to believe that the prosecution has not disclosed the complete facts before the Court. They do not appear to have told the truth when they deposed that Arun came twice on 24th August, 2002 to call Nabin. The evidence of P. Ws. 2, 3 and 7, discussed above, we are inclined to think is a concoction. We, therefore, are inclined to believe that the prosecution has not disclosed the complete facts before the Court. They do not appear to have told the truth when they deposed that Arun came twice on 24th August, 2002 to call Nabin. The evidence of P. Ws. 2, 3 and 7, discussed above, we are inclined to think is a concoction. ( 24 ) P. W. 1 has deposed that he owns a video hall on an encroached piece of land belonging to the P. W. D. P. W, 4, Gauranga nasker, an independent witness, has deposed that he heard about a dispute in connection with a video hall of Nabin with the anti-socials. He added in cross-examination that "i know that there was a long pending disputes with the anti-social and the Nabin's family". Therefore, the dispute between the family of the victim and the anti-socials is firmly established. P. W. 1 was suggested in cross-examination that he knew that the anti-socials had committed the crime and out of fear he had lodged a false complaint against the accused persons. P. W. 2 was suggested that in order to save the anti-social elements the actual cause of death had been suppressed. Identical suggestion was given to P. Ws. 9, 10 and 16. P. W. 16 was also suggested that the septic tank was not the actual place of occurrence. ( 25 ) THE prosecution has obviously failed to make a fair and frank disclosure of the facts and circumstances of the case. No other conclusion is possible regard being had to the fact that the family secrets referred to in the FIR were not even touched during the trial; in spite of soured relationship between the two families owing to detention of Nabin an impression was sought to be given that there was very good relationship between Arun and Nabin and no attempt whatsoever was made to explain the possible reason why Nabin was called a 'papi' in the letter dated 25th June 2002 and the enmity between the anti-socials and nabin's family was denied by the P. W. 1 which is anything but bona fide. Similarly the defence has also not sought to clarify or to prove the correctness of the suggestions given to the P. Ws. 1, 2, 9, 10 and 16. The defence may have had some justification for the omission but the prosecution had none. Similarly the defence has also not sought to clarify or to prove the correctness of the suggestions given to the P. Ws. 1, 2, 9, 10 and 16. The defence may have had some justification for the omission but the prosecution had none. The result is that the prosecution is pointing the finger at the accused persons whereas the accused persons are pointing the finger at the anti-socials. It is at this stage that the four persons, noticed by the p. W. 10 in the midnight of 24th August, 2002 in the bamboo garden, become material. We already have indicated why those four persons could not be the accused persons. ( 26 ) THERE are thus two sets of basic facts. The first set of the basic facts suggests that the accused may have had a motive to perpetrate the crime. The victim was also found in the company of Arun at 8. 05 p. m. by the p. W. 8. That possibly was the last time when nabin was seen. The second set of basic fact is equally strong which goes to show that there was an animosity between the family of the victim and the anti-socials concerning the video hall erected on an encroached land which is equally potent to furnish the anti-socials with a motive to perpetrate the crime. The four persons seen by P. W. 10 near the bamboo garden in the midnight of 24th august could be those anti-socials. Near the bamboo garden the dug-well tank was situate from where dead body of the victim was found. ( 27 ) IN a case of balanced probabilities like the one in hand we have no option but to give benefit of doubt to the accused persons. We cannot with reasonable certainty hold that the circumstances are wholly consistent with the guilty of the accused persons or that they are wholly inconsistent with the innocence of the accused persons. Reference in this regard may be made to the judgment in the case of Kishore Chand v. State of H. P. reported in 1991 (1) SCC 286 : (1990 Cri LH 2289) para 6) wherein the following view was expressed. "in assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. "in assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The Court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that in all probability the act must have been done by the accused and the accused alone. " ( 28 ) WE are unable to agree with the learned trial Court that Arun came to call nabin on 24th August 2002 or that all the accused persons were found near the bamboo garden or that the accused Panchu debnath was found in the early morning at 6 p. m. on 25th August near the septic tank. We are also disinclined to believe the evidence of p. Ws. 2, 3 and 7 for reasons already discussed. ( 29 ) IN the result the appeal succeeds. The order of conviction and sentence under challenge is set aside. We are also disinclined to believe the evidence of p. Ws. 2, 3 and 7 for reasons already discussed. ( 29 ) IN the result the appeal succeeds. The order of conviction and sentence under challenge is set aside. The accused appellants are acquitted of all the charges framed against them. The appellant Nos. 1 and 4 who are already on bail are discharged from the liability of bail bonds. The appellants No. 2 and 3 who are in jail are ordered to be released forthwith unless required in any other case. ( 30 ) LOWER Court Record with a copy of this judgment to go down forthwith to the learned trial Court for information and necessary action. ( 31 ) URGENT xerox certified copy of this judgment, be delivered to the learned Advocate for the parties, if applied for, on compliance of all formalities. ( 32 ) I agree. Appeal allowed.