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2008 DIGILAW 566 (CAL)

Biren Singh v. STATE OF WEST BENGAL

2008-06-02

G.C.GUPTA, KISHORE KUMAR PRASAD

body2008
Judgment : GIRISH CHANDRA GUPTA, J. (1) THIS appeal is directed against a judgment dated 30th July, 2001 passed by the learned additional sessions Judge, dakshin Dinajpur in sessions Trial No. 9/2000 arising out of sessions Case no. 59/2000 by which the appellant Biren Singh was convicted for an offence punishable under section 302 of the Indian Penal Code. By an order dated 31st July, 2001 the convict was sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for a period of six months. (2) MR. Dutta, the learned Advocate, appearing in support of the appeal, submitted that there is no evidence on the basis of which the appellant could have been convicted. According to him, the learned Trial Judge grossly erred in convicting the appellant on the basis of an extra judicial confession. An extra judicial confession according to him is by itself a weak piece of evidence and cannot be relied upon without an assurance that the same was made voluntarily and was also true. In this case, there is nothing on the record to show that the alleged extra-judicial confession was factually proved. There is no dependable evidence to show that such an extra judicial confession was at all made. There is no eye witness. The case is based on circumstantial evidence and the circumstances appearing from the evidence on record do not point to the guilt of the appellant. He, therefore, submitted that the conviction cannot be allowed to stand. He also submitted that the appellant, according to his instruction, died in jail but he does not have any death certificate with him. He added that even if, the appellant is dead, the stigma arising out of the conviction should be removed and the sentence directing him to pay fine has to be set aside. (3) CONSIDERING the submissions of Mr. Dutta, we would like to examine the evidence in some detail. There are twelve witnesses. None of them is an eyewitness. Three of them were official witnesses. P. W. 10 is the autopsy surgeon. P. W. I 1 is a retired police constable who took the deadbody to the morgue and the P. W. 12 is the I. O. P. Ws. 1 and 2 were declared hostile. There are twelve witnesses. None of them is an eyewitness. Three of them were official witnesses. P. W. 10 is the autopsy surgeon. P. W. I 1 is a retired police constable who took the deadbody to the morgue and the P. W. 12 is the I. O. P. Ws. 1 and 2 were declared hostile. P.W.3, Harinarayan Singha, deposed as follows: "on the date of alleged incident accused Biren Singh with his wife went to the neighbouring hat. After returning from the hat in the right around 10 p. m. , the accused assaulted his wife. Sefali, the daughter of Biren Singh (P. W. 1), went to call Dayal Barman and others including myself. I came to the house of the accused, but I found that the door of the bedroom was closed from inside. We requested Biren Singh to open the door, but he threatened the outsider uttering, who will come inside the room, I shall murder him. Then we returned home and fell asleep. In the morning around 6 a. m. said Sefali again told us that the door of the room of the accused was closed from inside. Then we suspected that there was something happened as the door was closed. Then we, the villagers pushed the younger daughter of the accused named Lalita through the window. That girl then opened the door. Even then the accused did not allow anybody to enter that room. He was armed with a knife in his hand and threatened that who will attempt to enter, he will kill him. " (4) IT is curious to note that the evidence of the P. W. 3 given in Court was not even hinted at by the P. W. 3 during his examination under section 161. The P. W. 12, Investigating Officer, during his cross-examination admitted as follows: "P. W. 3 Hari Narayan Singh stated to me that in the night of the incident no villager came out of their houses and went to the house of the accused. He did not state to me that Sefali, the daughter of Biren Singh called the villagers including himself in the night of incident. He did not state to me that on the following morning Sefali went to them and told that the door was closed from inside and that they suspected otherwise. He did not state to me that Sefali, the daughter of Biren Singh called the villagers including himself in the night of incident. He did not state to me that on the following morning Sefali went to them and told that the door was closed from inside and that they suspected otherwise. He also did not state to me that he went there and again asked Biren to open the door. But he refused and threatened to kill them. He also did not state to me that on the date of alleged incident Biren went to hat with his wife and returning home he assulted his wife at about 10 p. m. He also did not state to me that Lalita opened the door but Biren could allow anybody to enter the room. " (5) THEREFORE, the evidence of the P. W. 3 is open to serious objection and cannot be believed at all. P. W. 4, Provash, deposed as follows : the accused Biren Singh murdered his wife. On the following morning of the fateful night I heard about the expiry of the wife of Biren, I went there. Reaching there I noticed that the children of the accused were crying and shouting that their father murdered their mother. I also saw the deadbody of the victim inside the room of accused Biren. Many villagers like me assembled there. We asked Biren as to why he murdered his wife. He replied, I murdered my wife, what of that to you? (6) HIS evidence was also similarly contradicted by the Investigating Officer, the P. W. 12. P. W. 12 admitted in his cross-examination as follows: "P.W. Provash Barman did not state to me that on the following morning of the incident getting information he went there and saw that the children of the accused were shouting that their father killed their mother. He also did not state to me that he together with Hari Narayan Singh, Harilal rabidas and many others asked the accused as to why he killed his wife." (7) THE evidence of the P.W. 4 is therefore equally open to objection and can hardly be relied upon. (8) P. W. 5, Affazuddin Sarkar, deposed that when he reached the place of occurrence he found that the children of the accused were crying and that the children were also shouting that their father had assaulted their mother. (8) P. W. 5, Affazuddin Sarkar, deposed that when he reached the place of occurrence he found that the children of the accused were crying and that the children were also shouting that their father had assaulted their mother. (9) THE P. W. 12 in his cross-examination admitted that no such thing was disclosed to him by the P. W. 5 during his examination under section 161. Therefore, the evidence of the P. W. 5 does not inspire any confidence. (10) P. W. 6, the de facto complainant, Harilal, deposed that the daughter and sister of the accused told him that the accused had murdered his wife. The sister of the accused his not been examined. The daughter of the accused has not supported the evidence of the P. W. 6. Therefore, this part of his evidence does not inspire any confidence. The P.W. 6 further deposed that the accused with a knife in his hand was shouting that he would kill anyone who dared to ; enter his house. He also deposed that he had prior thereto called at the house of the accused when the accused was sitting by the side of the dead body of his wife. The accused, according to the P. W. 6, told him that the accused tried to assault his wife and as a result she became senseless. These are two contradictory versions of the P. W. 6. On the one hand, he is alleging that the accused was giving an account of what had happened during last night and on the other hand he is alleging that the accused was shouting with a knife in his hand that he would kill if anyone dared to enter his house. Evidence of the P. W. 6 can hardly be taken into account to ascertain the actual state of affairs. (11) P. W. 7 deposed that in his presence the accused made an extrajudicial confession that he had murdered his wife. The P. W. 7 in his cross-examination deposed as follows : "biren did not utter and shouted saying he murdered his wife, what of that to us." (12) THEREFORE, the evidence given by the P. W. 7 in his examination-in-chief is given a go-by in the cross-examination. (13) P. W. 8, Ramendra deposed that after hearing that the accused had killed his wife, he went to the place of occurrence. (13) P. W. 8, Ramendra deposed that after hearing that the accused had killed his wife, he went to the place of occurrence. He found that large number of villagers had gathered at the place of occurrence. The wife of the accused biren was lying dead with bleeding injuries. Biren was present at the place of occurrence. No one present at the place of occurrence even whispered that biren was the assailant of his wife. The evidence of the P. W. 8 militates against the case of the prosecution. (14) P. W. 9, Omar All, in his examination-in-chief, deposed that a large number of people had collected at the place of occurrence. A portion of such people, who had collected at the place of occurrence, were saying that the dacoits had killed the woman and that some of them were saying that the accused had killed the woman. This part of the evidence of the P. W. 9 that people were contemporaneously talking about the murder having been committed by dacoits finds corroboration from the evidence of P. W. 1 who deposed that dacoits raided their house. Her father, the accused Biren, fled away. The dacoits killed her mother. (15) THE learned Trial Judge has opined that the accused took an alibi during his examination under section 313 that the dacoits had killed the victim. alibi, in fact, means elsewhere. When the accused in his examination under section 313 stated that the dacoits had killed his wife he did not really take an alibi. That was a plea and not alibi taken by the accused. Law is well-settled that the accused has only to probablise the defence taken by him. The defence taken by the accused is supported by the evidence of the P.Ws. 1 and 9. The learned Trial Judge obviously erred in rejecting the defence version. (16) THE innocence of the appellant is further established from the evidence of P. W. 9; material part of which reads as follows:- "the children of the accused were then crying when the accused was arrested by the police. I did not meet Dayal at the house of the accused. Villagers assembled there prior to my arrival. The accused Biren was also crying when the police arrested him. The people assembled there were giving him consolation. I did not meet Dayal at the house of the accused. Villagers assembled there prior to my arrival. The accused Biren was also crying when the police arrested him. The people assembled there were giving him consolation. " (17) IF the accused according to the villagers, had been the culprit, was there any occasion to console the accused? We are convinced that view of the learned Trial Judge is not borne out by the evidence on record. There is no reliable extra-judicial confession either. The circumstantial evidence that (a) the accused was sitting by the deadbody of his wife (b) the accused and his children were crying (c) the villagers were consoling the accused and (d)the murmuring of the villagers that the dacoits had killed the woman point at the innocence of the accused rather than pointing at his guilt. (18) FOR the reasons indicated above, the appeal succeeds. The conviction and sentence are set aside. The appellant, Biren Singh, is acquitted from the charge under section 302 of the Indian Penal Code. He shall be released forthwith if not died in jail as submitted by Mr. Dutta appearing for the appellant. Appeal succeeds.