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2011 DIGILAW 336 (CAL)

Prahllad Dutta v. STATE OF WEST BENGAL

2011-03-08

G.C.GUPTA, RAGHUNATH RAY

body2011
JUDGMENT Girish Chandra Gupta, J. 1. THIS appeal is directed against a judgment and order dated 22nd August, and 23rd August, 2002 passed by the learned Additional Sessions Judge, 2nd Court, Bankura, in Sessions Case No. 5(11) of 1998 corresponding to Sessions Trial No. 2(8) of 2001 by which the accused Prahallad Dutta, wife Phelarani Dutta and his daughter Mamoni Dutta were convicted of an offence punishable under section 302 and 201 read with section 34 of the Indian Penal Code. 2. THE learned Trial Court by the judgment dated 23rd August, 2002 held that Tilottmma a young woman aged about 22 years was killed by her parents namely Prahallad and Phelarani aided and assisted by the younger daughter Mamoni. THE learned Trial Court awarded life imprisonment to each of the convicts under section 302 read with section 34 of the Indian Penal Code. No separate punishment was, however, awarded with respect to the alleged offence punishable under section 201 of the Indian Penal Code. The case of the prosecution briefly stated is as follows: On 23rd December. 1994, the victim Tilotomma was assaulted black and blue by her parenrs She thereafter was not seen alive by the villagers. The Prodhan enquired of the accused Prahalad as regards whereabouts of his daughter Tilotomma to which he gave various sorts of answers which made the villagers suspicious. On 2nd January, 1995, the villagers led by the Prodhan allegedly enquired of the accused Prahallad about the whereabouts of his daughter Tilotomma. It is alleged that the accused Prahallad confessed that he along with his wife Phelarani and the daughter Mamoni had killed her and buried her dead body in one of the rooms of his dwelling house. A written complaint proved by the P.W.2 was lodged by the P.W. 1, the Prodhan. Police thereafter is alleged to have been activated. The body was recovered. Inquest was held. All the accused persons were arrested, subsequently charged and convicted. It is against this conviction that the present appeal has been filed by the father, the mother and their daughter. 3. MR. Dandapat, learned advocate, appearing in support of this appeal emphatically submitted that there is no evidence, worth the name on the record, on the basis of which the learned Trial Court could have returned a verdict of conviction. It is against this conviction that the present appeal has been filed by the father, the mother and their daughter. 3. MR. Dandapat, learned advocate, appearing in support of this appeal emphatically submitted that there is no evidence, worth the name on the record, on the basis of which the learned Trial Court could have returned a verdict of conviction. He submitted that the learned Trial Court was over jealous in accepting the fanciful theory propounded by the prosecution, although, there was no evidence before him. Prosecution according to him had even failed to probabilise its case far less proving the same beyond any reasonable doubt. 4. MR. Ghosal, learned advocate, appearing for the State, took time to reconsider the matter and submitted that upon appreciation of the evidence the Court has to come to its own conclusion. The learned Trial Court appears to have been highly inspired by the alleged confession made by the accused Prahallad which would be evident from the fact that the learned Trial Court without discussing the submission of the learned Public Prosecutor observed as follows": "Learned P.P. in- charge submitted that the P.W. 1 Panchayat Pradhan received the information from the villagers, and accordingly due to suspicion he along with other villagers went to the house of Prahallad and asked Prahallad about the whereabouts of his daughter Tilottama @ Putu but Prahlad gave some contradictory statement about his daughter's whereabouts and it is natural that on two occasions that Panchayat Pradhan after getting such information from Prahallad went away but when the villages ultimately found that Putu was not available in his father's house or at village and the villagers requested him and thereafter they asked Prahallad about the whereabouts when Prahallad confessed that his daughter had been murdered and had been buried within the room of his house compound and if the evidences of P.W. 1 is minutely considered with the FIR (exhibit -1) it can safely be said, that P.W. 1 did not try to anyway state before the Court of law any coloured picture of the entire incident." 5. MR. Dandapat, learned advocate, is right in his criticism. MR. Dandapat, learned advocate, is right in his criticism. He drew our attention to the following portion of the written complaint: "When we some villagers asked Prallhad again Pralhad confessed to me and others that he, his wife and his youngest daughter - three persons being combined had murdered Putu on 23.12.94, made a pit on the inside floor towards the south of the house and kept the dead body buried there." 6. HE then invited us to compare the allegations contained in the written complaint with the evidence adduced by the P.W. 1, the defacto- complainant in Court. HE has taken us through the evidence of the P.W. 1 time and again. Mr. Ghosal, also checked up but not a word about any alleged confession was in fact uttered by the P.W. 1 who had lodged the written complaint. 7. MR. Ghosal, drew our attention to the evidence of P.W.2 in order to show that the accused Prahallad had disclosed to the witnesses that the body of the deceased had been buried in one of the rooms of his dwelling house. 8. MR. Ghosal, submitted that this proves guilty knowledge of the accused Prahallad and lends support to the written complaint wherein it is alleged that Prahallad had confessed before them that all the three had combined to kill the victim Tilotomma. Knowledge, guilty or otherwise is one thing and confession is another. A Person who has seen the dead body being engraved in a room may have the knowledge as to where the dead body is. But that would not as a matter of rule be a guilty knowledge nor would that mean that he is the person who killed the victim. We shall have occasion to deal with this part of the matter in greater detail. At the moment, we are trying to find out the basis of the judgment that the accused Prahallad made any confession. We already have indicated that the maker of the written complaint did not utter a word about the same. P.W.2, did not also utter a word about it. P.W.3, is a witness who was never examined under section 161 Cr PC. P.W.4, did not utter a word about any alleged confession. P.W.6, did not utter a word about any alleged confession. Therefore the case of the prosecution as regards confession caved in. P.W.2, did not also utter a word about it. P.W.3, is a witness who was never examined under section 161 Cr PC. P.W.4, did not utter a word about any alleged confession. P.W.6, did not utter a word about any alleged confession. Therefore the case of the prosecution as regards confession caved in. The second point for consideration is did the accused have any guilty knowledge as regards the place where the dead body of the deceased was hidden? The learned Trial Court in its usual style of discussing the submission of the learned Public Prosecutor has recorded as follows: "The P.O. was identified by Prahallad Dutta and it was shown by the acused persons as the place of concealing the dead body and at that point i.e., at the P.O. point heap of paddy was stacked and heap of paddy was also removed and floor level had been found cleaned with cowdung- mud mixture and that place was dug out and excavated and villagers were also present and the body of Tilottama was unearthed or exhumed from a certain depth after removing the mud and that I.O. has also stated that he seized "Kodal" and 'Shabal' from that room and he prepared seizure list and the articles were produced and shown by Prahallad, the accused of this case and he has proved the seizure list marked as exhibit-7." The learned Trial Court appears to have fallen a prey to forgetfulness when it failed to notice its own observation made earlier which reads as follows: 'This P.W.I has also stated in his evidence .............................. Police Officer and C.I. of Khatra in their presence began to search out inside the house of Prahallad paddy was stacked and police suspected that place and removed the stacked paddy and wet mud was found and then said place was dug out and he has also stated that Putu was healthy girl aged about 20/22 years." 9. WHEN the evidence of the P.W. 1 was that the police started a search for the dead body and on the basis of suspicion excavated a portion of the floor of one of the rooms, how could the learned Trial Court come to the conclusion that the dead body was recovered from a place identified by the accused Prahallad? Now we may take into consideration the submission made by Mr. Now we may take into consideration the submission made by Mr. Ghosal that the P.W.2 talked about the knowledge of the accused Prahallad which reads as follows: "Prahallad disclosed prior to that the body of Putu had been buried in his one room of his house and Prahallad was arrested just prior to arrival of police". 10. IT can be pointed out that the aforesaid deposition of the P.W.2 is contradictory or inconsistent with what he had deposed earlier. He, as a matter of fact, deposed earlier that "But subsequently police came in the house of Prahallad on 2/1 /95 and on search police officers found the dead body after digging out mud from mud made floor of a room of the house of Prahallad in our presence." If Prahallad had disclosed to the villagers that he had buried his daughter in one of the rooms of his dwelling house where was the necessity to embark upon a search for the dead body? 11. THE evidence of the P.W. 12, the Investigating Officer, is that all the accused persons had been arrested by him between 12.00 to 13.00 hrs. on 2nd of January, 1995. In that event, Prahallad should have been asked to identify the place where the dead body had been buried by him. THE fact that the police had to undertake a search to find out where the dead body was is only consistent with the proposition that no one knew where the dead body was. THE mere fact that a 'kodal' or a 'gaity' was seized by the police from a household in a village who are farmers basically can by no stretch of imagination provide any link for the purpose of looking at any person with any amount of suspicion. THE P.W.2 during his cross-examination deposed that: "SD.P.O. stated Magistrate that he knew the place where dead body was buried and then as per (illegible) pointing out of SD.PO. place was cleared and then digging work was started and dead body was brought out from (illegible) earth at about 5 to 5/30 P.M." 12. THEREFORE, the evidence of the P.W.2 relied upon by Mr. Ghosal, appears to us to be nothing more than utter falsehood. The evidence of the P.W.2 during his cross-examination noticed above finds corroboration from the evidence of the P.W.4 Tapan Dutta. THEREFORE, the evidence of the P.W.2 relied upon by Mr. Ghosal, appears to us to be nothing more than utter falsehood. The evidence of the P.W.2 during his cross-examination noticed above finds corroboration from the evidence of the P.W.4 Tapan Dutta. "C.I. of police pointed out that place where from dead body of Putu was recovered and police search out enquiry from all of that locality." 13. THE theory of confession and the theory of guilty knowledge have, thus, been excluded. Now the question still remains whether the accused persons can still be found guilty on the basis that the dead body was recovered from one of the rooms of their dwelling house. If the body was indeed lying in one of the rooms of the dwelling house of the accused persons they would in that event have the burden to offer a reasonable explanation as to how did the body find its place in one of the rooms they shared for their dwelling. THE prosecution can in that event contend that this fact was in their special knowledge and they were liable to satisfactorily explain under section 106 of the Indian Evidence Act. Therefore, the first question for determination is " whether the dead body was recovered from one of the rooms of the dwelling house of the accused persons?" 14. THE learned Trial Court appears to have returned a finding in the affirmative when the following views were expressed. "From the evidence of P.Ws. 2, 3, 4, 1 and 6 it is proved that Prahallad used to possess the dwelling house exclusively and Prahallad's dwelling house was within the compact boundary wall having one door for exit and entrance from his dwelling house area to outside. So the fact remains that. Prahallad had his hut or dwelling house within the P.O. land and it had been possessed by Prahallad exclusively and P.O. point is nothing but a room which is a part of the dwelling house of Prahallad. So the defence story that P.O. was subsequently purchased has no place to stand in this regard and to believe that the P.O. point is not within the dwelling house area or compound of Prahallad." As to the exact location of the room in question the importance of a sketch map can hardly be overemphasized. So the defence story that P.O. was subsequently purchased has no place to stand in this regard and to believe that the P.O. point is not within the dwelling house area or compound of Prahallad." As to the exact location of the room in question the importance of a sketch map can hardly be overemphasized. Such an important document, it was deposed by the Investigating Officer, the P.W. 12: "I prepared sketch map and the same is not found in the CD. but it is noted in the C.D." 15. THE suggestion made by the defence during his cross-examination was as follows: "Not a fact that I have not produced the sketch map knowing fully well if the sketch map is produced my case will be proved otherwise." 16. THE learned Trial Court in its zeal to convict the accused persons ignored this important omission. It also deliberately ignored the evidence as regards the ownership of the place of occurrence where the dead body was found. This is what the P.W. 1 deposed in that regard. "Previously the P.O. point land originally belonged to Kalipada, Saktibabu, (illegible) Belarani and Shibani all by surname Dutta and they sold away that plot to the said of Prahallad on 24.2.95." On behalf of the defence the deed of convevance executed by all the aforesaid four owners, of the place of occurrence, deposed to by the P.W. 1 was tendered in evidence and was marked Ext.A. It would appear from Ext.A that the place of occurrence had in fact, subsequent, to the incident in question, been conveyed to the son of the accused. In spite thereof, the learned Trial Court chose to record the following findings: "So it is clear that the P.O. was never sold to the son of Prahallad by the father of P.W.4". 17. THE learned Trial Court held that the place of occurrence was always within the possession of the accused Prahallad on the basis of the following reasoning. In spite thereof, the learned Trial Court chose to record the following findings: "So it is clear that the P.O. was never sold to the son of Prahallad by the father of P.W.4". 17. THE learned Trial Court held that the place of occurrence was always within the possession of the accused Prahallad on the basis of the following reasoning. "But learned lawyer for the defence submitted that P.W. 1 has admitted that P.O. point of the land previously belonged to Kalipada, Smt. Shakibala, Smt. Pariskari, Smt. Belarani and Smt. Shibani - all by surname Dutta but that evidence of P.W. 1 can not in any way support the case of the defence on the ground that Bijoy, the brother of Prahallad possesses a compact portion which is surrounded by walls on four sides. So it is proved beyond any manner of doubt that the P.O. is within the compact dwelling house of Prahallad and it was under the possession of Prahallad till the date of recovery of the dead body of his daughter Putu from one room of his dwelling house." 18. THE learned Trial Court has relied on the evidence of the P.W. 6 who is no other than the younger brother of the accused Prahallad. Let us now examine the evidence of P.W.6 his new deposition is reproduced here in below: "Prahallad is my full elder brother. I know the house compound of the house of Prahallad. My house and my elder brother Prahallad's house are (illegible) by continuous wall on four sides but there is a partition wall just mid portion of the entire land and I posses exclusively eastern side and Prahallad possess western side. Putu is my neice, daughter of Prahallad. I was not present on the date of recovery of dead body of Putu. Till the death of Putu in that house my elder brother Prahallad used to reside continuously along with his wife, daughter Putu and another daughter Manimala. I was never examined by police. (Declared hostile by the prosecution and prosecution prays for permitting him to cross. Prayer is allowed)." 19. AFTER declaring him hostile in the cross-examination he was suggested that the accused had not only confessed but also identified the place where she was engraved which he denied. I was never examined by police. (Declared hostile by the prosecution and prosecution prays for permitting him to cross. Prayer is allowed)." 19. AFTER declaring him hostile in the cross-examination he was suggested that the accused had not only confessed but also identified the place where she was engraved which he denied. There is, thus, no dependable evidence adduced by the P.W. 6 on the basis of which the learned Trial Court could have arrived at a finding that the place of occurrence was in the possession of the accused Prahallad. 20. THE next reason assigned by the learned trial Court is even more startling. As regards the statements made by the accused during their examination under section 313, the learned Trial Judge in his usual way of dismissing the submission made by the learned public prosecutor observed as follows: "Learned P.P. in- charge submitted at the time of advancement of argument that the accused persons examined under section 313 Cr PC and all the accused persons have admitted in their evidence that the P.O. house has been possessed by the accused persons." We have checked up the examination of the witnesses under section 313 in that regard which we intend to presently notice in extenso. Q. 16. Witness No.9 on behalf of the prosecution stated that on 2.1.95 he was the Magistrate of Khatra on that day he went to your residence at village Kechanda with the Police Officer and saw in presence of you and your parents that huge paddy was heaped on the floor of a room. What have you got to say? Ans. That room is not of us. It is the room of another person. 21. THIS was the statement of the accused Mamoni. The question put to the accused Phelarani in that regard is question No. 23 both the question and answer are set out here in below: "Q.23. All the witnesses including witnesses No. 1 to 5, 7 to 10 and 12 on behalf of the prosecution stated that on 2.1.95 paddy was heaped in a room of your house at village Kechunda. Paddy was removed from that place. The floor of that place was dug. A four feet pit was made and the dead body of Putu (with injuries) was taken out in presence of them and you. What have you got to say? Ans. THIS is false. Paddy was removed from that place. The floor of that place was dug. A four feet pit was made and the dead body of Putu (with injuries) was taken out in presence of them and you. What have you got to say? Ans. THIS is false. And the question put to the accused Prahallad in that regard is question No.23 both the question and the answer thereto are also appended here in below: Q.23 All the witnesses on behalf of the prosecution including witnesses No. 1 to 5, 7 to 10 and 12 stated that on 2.1.95 paddy kept heape in a room of your house at village kechunda was removed, a pit about 4 feet was made and the dead, body of Putu (with injuries) was taken out in presence of your wife and your another daughter Monimala. What have you got to say in this matter? Ans. THIS is false." 22. ANOTHER very surprising reason advanced by the learned Trial Court with respect to the question under consideration is as follows: 'There is no such defence that Prahallad had any other dwelling house but considering another aspect i.e.. Prahallad did not depose before this court to substantiate the fact that the room where from the dead body of her daughter was recovered never belonged to him and it is at a far place from his dwelling house though the defence has put such suggestion that P.O. point where from the dead body of Putu was recovered was outside the boundary wall of Prahallad but that has been turned out down by the witness and in this case it is not required to be proved by the prosecution whether in the dwelling house where Prahallad used to reside at the relevant time, whether Prahallad had any right, title, interest or not where Prahallad used to reside at the relevant time." The accused is a competent witness but he is not under no obligation to enter the witness box. If he stays away from the witness box no inference against him can be drawn. Reference in this regard may be made to sub section 1 of section 315 of the Code of Criminal Procedure which reads as follows: "315. If he stays away from the witness box no inference against him can be drawn. Reference in this regard may be made to sub section 1 of section 315 of the Code of Criminal Procedure which reads as follows: "315. Accused person to be competent witness.- (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that - (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial." 23. THE witnesses of the prosecution were suggested that the room in question from where the dead body was found was 50-60 cu.ft. away from the dwelling house of the accused persons. True it is that they have denied that suggestion. But there is no dependable evidence on the record to show that the room in question was situated within the dwelling house of the accused personss. THE fact that a sketch map was prepared but was not ultimately produced is a telling circumstance and goes a long way to probabilse the story of the defence. There is no witnesses examined on behalf of the prosecution conversant with the Dag No. or plot No. of the room from which the dead body was found. THE learned Trial Court has placed reliance upon the evidence of the P.W.4. THE P.W.4 deposed as follows: "I do not know the plot of the P.O. room. Kalipada Dutta is my father and P.O. room never belonged to my father. Not a fact that my father sold away the plot of P.O. room to (illegible) of Prahallad. My father sold away vacant land to son of Prahallad but I did not see the schedule and content of the deed. I am not able to say the detail of the schedule of the deed. I do not know the plot No. 163 and also do not know how much area of land was sold by my father to son of Prahallad. I am not able to say the detail of the schedule of the deed. I do not know the plot No. 163 and also do not know how much area of land was sold by my father to son of Prahallad. I am not able to say the boundaries of the lands which were sold by my father, and I do not know which land was sold to Prahallad by my father. Not a fact that the P.O. room was outside the compound of the dwelling house of Prahallad and Bijoy. When police came to P.O. prior to that wife of Prahallad took seat in her room after bathing. Not a fact that P.O. room belonged to my father and Prahallad did not possess the said room on the date of recovery or prior to that but Mrityunjoy purchased the plot. I do not know whether two decimals (?) of land of plot No. 163 including hut were sold to Prahallad." 24. EXHIBIT 'A' being the deed of conveyance tendered in evidence on behalf of the accused in its schedule contains reference to a mud house or a mud room which also goes to probablise the defence of the accused persons. The evidence of P.W. 1 that the place of occurrence did not belong to the accused persons is a clear admission as regards the case of the defence. P.W.9, a Deputy Magistrate, who conducted inquest on 2nd March, 1995 admitted in his cross-examination is as follows: "In my report it is not noted from Prahallad Dutta's house or room the dead body was recommend (recovered?) and prior to that date I never went to that P.O. house and I did not see Prahallad Dutta prior to that." We are in the circumstances, of the opinion that the finding recorded by the learned Trial Court that the room in question where the dead body of the deceased was lying was in the possession of the accused is without any basis. Only thing which remains to be dealt with is circumstantial evidence staring against the accused persons according to Mr. Ghosal. (a) Admittedly, the deceased during her lifetime was residing with her parents. She went missing but no attempt to trace her out was made nor any information in that regard was given to the police. On the contrary, Mr. Only thing which remains to be dealt with is circumstantial evidence staring against the accused persons according to Mr. Ghosal. (a) Admittedly, the deceased during her lifetime was residing with her parents. She went missing but no attempt to trace her out was made nor any information in that regard was given to the police. On the contrary, Mr. Ghosal, added that misleading information was furnished by the accused Prahallad to the villagers. We are unable to accept this submission. The written complaint lodged by P.W. 1 has been read and re-read by us. 25. WE have also read and re-read his deposition adduced in Court. There is no clear cut statement either in the written complaint or in the deposition itself in Court that the accused Prahallad was interrogated by the villagers including the P.W. 1, over a period of time spread over two or three weeks or even more. But from the trend of questioning of the accused persons under section 313 Cr PC, we find that the learned Trial Court was of the view that such questioning took place over a period of time. (b) The evidence of the P.W. 1 summarized by the learned Trial Court and put to the accused Mamoni in question number 23 reads as follows: "Q.23. Witness No.1 on behalf of the prosecution stated that having heard from the villagers he went to your house in connection with missing of Putu and interrogated your father. Then your father stated that Putu was staying in the house of her elder sister at Bankura and after a few days being interrogated he said that Putu was staying in the house of her aunt in Calcutta. At this they became suspicious. What have you got to say ? Ans. I do not know. 26. EVEN assuming the contents of this question to be true and correct we do not find anything misleading therein. The accused could have been under the impression that during the first period his daughter Putu was at Bankura and during the second period with her aunt at Calcutta. It does not sound absurd to us. It is quite possible that the accused persons were ignorant that their daughter had already been killed and her dead body was lying beneath the earth in the neighbourhood. It does not sound absurd to us. It is quite possible that the accused persons were ignorant that their daughter had already been killed and her dead body was lying beneath the earth in the neighbourhood. Merely because the witnesses thought that the accused persons gave different location the accused persons cannot be found guilty of murder of no other than their own daughter. No motive has been disclosed by any of the witnesses. No reason has been assigned why the parents should become enemies of their child. The written complaints in this case is not only in two inks but is also drafted in two hands. The first part of the FIR is not reconcilable with the last part of the FIR. 27. MR. Ghosal, submitted that this was a document drafted by rustic people. It could have been drafted by rustic people but we are unable to pursuade ourselves to believe that there was no attempt on the part of the witnesses of the prosecution to falsely implicate the accused persons. P.W. 12, has admitted that all the accused persons were arrested on 2nd January, 1995. The records reveal that they were produced before Court on 4th January, 1995. Why was the statutory mandate of producing the accused persons in Court within 24 hours not complied with? There is no explanation. This is a case which according to the evidence of the Investigating Officer was not only started on 2nd January, 1995 but almost the entire thing had been completed on 2nd January, 1995 except for the postmortem which was conducted on 3rd January, 1995. 28. FOR the reasons indicated above, we are of the considered opinion that the Judgment and order under challenge cannot be sustained which are both set aside. The accused persons are discharged of the bail bonds furnished by them. The concerned department of this Court is directed to send down the lower court records with a copy of this judgment to the concerned learned Trial Court forthwith. Appeal allowed.