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2011 DIGILAW 61 (CAL)

Rashid Sk v. STATE OF WEST BENGAL

2011-01-17

KALIDAS MUKHERJEE, M.D.ABDUL GHANI

body2011
JUDGMENT KALIDAS MUKHERJEE, J. 1. THIS appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, 10th Court, Alipore in Sessions Trial No. 1(4) of 2000 sentencing the appellant to suffer imprisonment for life and to pay a fine of Rs.200/- in default to suffer R.I. for one month. 2. THE prosecution case, in short, is that one Mofidul Islam Mollick lodged complaint with the Mograhat P.S. alleging that he was Upa Prodhan of the Gram Panchayat of Dhanuya (South). On 30.6.1996 at about 11.00 hours he got information from Kazi Akbar Ali that the dead body of one unknown lady was lying in the field at Sainberia. On getting such information, he along with some others went to that place and found that a dead body was lying in the field. There were injuries on the dead body. Upon receipt of the complaint, the Mograhat P.S. case No. 77 dated 30.6.1996 was started against unknown persons. After completion of investigation the charge sheet was submitted. The charge was framed by the learned Trial Judge under Section 302 I.P.C. against the appellant. The accused pleaded not guilty and claimed to be tried. 3. THE learned Trial Judge upon consideration of the materials on record passed the sentence as stated above holding that the accused made extrajudicial confession before P.W. 10 and P.W. 11 that he committed the murder of his wife Radha. THE learned Judge held that there was no direct evidence regarding the murder of Radha. THE learned Judge held that P.W. 10 and P.W. 11 had no inimical terms or bias against the accused person. THE learned Judge held that the evidence regarding such extra-judicial confession was also explained to the accused person during the examination under Section 313 Cr.P.C. and the accused only pleaded innocence in general; that the accused did not give any explanation regarding the evidence that they were last seen together. THE learned Trial Judge held that absence of evidence of motive was not material; under Section 313 Cr.P.C., the accused did not offer any explanation consistent with his innocence and the absence of such explanation itself was an additional link which completed the chain of evidence. 4. MR. THE learned Trial Judge held that absence of evidence of motive was not material; under Section 313 Cr.P.C., the accused did not offer any explanation consistent with his innocence and the absence of such explanation itself was an additional link which completed the chain of evidence. 4. MR. Pradip Roy, the learned Counsel appearing for the appellant submits that the appellant has been falsely implicated in this case and there is no direct evidence regarding the commission of the alleged offence. MR. Roy submits that the evidence of P.W. 10 and P.W. 11 regarding the extra judicial confession is not credible, inasmuch as, the appellant remained in the custody of the said P.Ws at the father’s house of the deceased for more than 24 hours. MR. Roy contends that when the extra judicial confession was allegedly made, 200/300 persons remained present there, but, no other person was examined by the prosecution to that effect. MR. Roy contends that the alleged extra judicial confession cannot be relied upon and it cannot form the basis of conviction in absence of other corroborative materials. Mr. Roy contends that nobody could identify the dead body as that of Radha and the brother of the deceased (P.W. 10) did not state that he identified the dead body as that of Radha. Mr. Roy submits that there is no evidence as to when the alleged murder was committed. Mr. Roy has referred to and cited the decisions reported in (2009) 3 SCC (Cri.) 66 [Baldev Singh Vs. State of Punjab]; (2010)3 SCC (Cri) 177 [Niranjan Panja Vs. State of West Bengal] and 2009 Cri.L.J. 948 SC [Baldev Singh Vs. State of Haryana]. 5. MR. Mullick, appearing on behalf of the State submits that there is evidence of P.W. 7 and P.W. 9 that the appellant and Radha went to attend marriage ceremony and it shows that they were last seen together. MR. Mullick submits that the extra judicial confession was made before P.W. 10 and P.W. 11 and there was corroborative evidence. 6. MR. Mullick has referred to the provision contained in Section 106 of the Evidence Act and submits that it was within the special knowledge of the accused as to what happened to his wife. MR. MR. Mullick submits that the extra judicial confession was made before P.W. 10 and P.W. 11 and there was corroborative evidence. 6. MR. Mullick has referred to the provision contained in Section 106 of the Evidence Act and submits that it was within the special knowledge of the accused as to what happened to his wife. MR. Mullick submits that no explanation was given by the accused during his examination under Section 313 Cr.P.C. as to the evidence that they were last seen together and as to why Radha did not come back. MR. Mullick submits that from the evidence of the P.Ws it would appear that the appellant came back on the next day, but, Radha did not come back and, under such circumstances, the onus is upon the appellant to explain as to what happened to Radha. Mr. Mullick submits that there is no evidence to show that the extra judicial confession was made under threat, inducement or duress. Mr. Mullick submits that there is no ground to interfere with the judgment of conviction and sentence passed by the learned Trial Judge. 7. THERE are two fold aspects of the prosecution case. One is alleged extrajudicial confession and the other is that deceased and the appellant were last seen together. P.W. 7 Icha Ali Gazi has stated that Radha and Rashid used to reside in his house as a tenant about 5/6 years ago; on Saturday in the afternoon they left the house saying that they were going to attend one marriage ceremony; on the next day Rashid was seen coming back alone and on being asked as to why Radha did not come back, Rashid gave evasive reply. 8. P.W. 9 Shyamal Bhowmick is a tenant in the house of P.W. 7, Icha Ali Gazi. He has stated that Radha was the wife of Rashid. On Saturday in the evening Radha and Rashid left the house giving out that they were going to attend a marriage party. Now it has to be seen whether this evidence of P.W. 7 and P.W. 9 that Radha and Rashid left the house for attending a marriage ceremony is worthy of credence or not. P.W. 7 and P.W. 9 have stated in their cross-examination that they heard about the intention of Radha and Rashid to attend a marriage ceremony. Now it has to be seen whether this evidence of P.W. 7 and P.W. 9 that Radha and Rashid left the house for attending a marriage ceremony is worthy of credence or not. P.W. 7 and P.W. 9 have stated in their cross-examination that they heard about the intention of Radha and Rashid to attend a marriage ceremony. It, therefore, follows that it is not the direct knowledge of P.W. 7 and P.W. 9 that they had seen both of them leaving the house for attending a marriage ceremony. They derived their knowledge in this regard from somebody else whose name they did not disclose. It is, therefore, clear that the evidence of P.W. 7 and P.W. 9 in this regard being hearsay has no evidentiary value. 9. THE other aspect of the case is that there is alleged extra-judicial confession. P.W. 10 in this regard has stated that Radha was married with Rashid who at the relevant time came to him and informed that he committed the murder of his wife Radha; on hearing that news he along with Sudhir Baidya, Joydeb Bhandari including Rashid and several others had been to Bhasa Police camp and from there they went to Mograhat P.S. In the cross-examination P.W. 10 could not say when he for the first time got the news of missing of Radha. P.W. 11 has stated that he along with Rashid and several others had been to Debipur in the house of the father of Radha; in course of conversation about whereabouts of Radha, Rashid gave out in presence of those people that he committed the murder of Radha. 10. P.W. 9 has stated that he, Icha Ali (P.W. 7), Samsuddin (P.W. 8) and Rashid went to Debipur at the house of Radha’s father and then they were all taken to the Bhasa Camp and thereafter to the Mograhat P.S. But it is insignificant to note that P.W. 8 Samsuddin did not state that he accompanied P.W. 7 or Rashid to Debipur. On the contrary, P.W. 8 stated that he did not go to any place. It is, therefore, clear that the evidence of P.W. 7, P.W. 10 and P.W. 11 was not corroborated by P.W. 8. It is, therefore, evident that the alleged visit to the house of Radha’s father was introduced for the purpose of making out a case of extra-judicial confession. It is, therefore, clear that the evidence of P.W. 7, P.W. 10 and P.W. 11 was not corroborated by P.W. 8. It is, therefore, evident that the alleged visit to the house of Radha’s father was introduced for the purpose of making out a case of extra-judicial confession. In the case of Baldev Singh Vs. State of Punjab (Supra) the Hon"ble Apex Court observed in paragraph 26 as follows:- "26. Evidence of extra-judicial confession is generally of a weak nature. No conviction ordinarily can be based solely thereupon unless the same is corroborated in material particulars. Extra-judicial confession must be found to be reliable." 11. IT is in the evidence of P.W. 10 that on hearing the extra-judicial confession made by Rashid to him he, along with Sudhir Bhandari, Joydeb Bhowmick including Rashid Sk. and several others had been to Bhasa Police camp and from there they went to Magrahat P.S. But P.W. 11 has stated that he along with Rashid Sk. and several others had been to Debipur where Rashid allegedly made extra-judicial confession. Here there is a contradiction between P.W. 10 and P.W. 11. According to P.W. 10 they went straightway to Bhasa police camp and thereafter they went to Mograhat P.S. But P.W. 11 has stated that he including P.W. 10 and others went to Debipur at the house of Radha’s father and from there they went to Bhasa police camp and then to Mograhat P.S. That apart, there is another contradiction in the evidence of the P.Ws regarding the presence of Rashid in the house of the father of Radha. P.W. 7 has stated that he along with Shyamal Bhowmick (P.W. 9) and Samsuddin Mullick (P.W. 8) went to the paternal house of Radha where Rashid was already present there. But according to P.W. 11, Rashid arrived at the father"s house of Radha at about 4.00 P.M. and they for the first time went to Bhasa police camp in the evening on the next day. This point of contradiction regarding the presence of Rashid at the father"s house of Radha raises serious doubt as to the veracity of the alleged extra-judicial confession made by the appellant. According to P.W. 10, Rashid confessed before him only. But, according to P.W. 11, Rashid made such confession in the father"s house of Radha at Debipur in presence of so many people of Debipur. According to P.W. 10, Rashid confessed before him only. But, according to P.W. 11, Rashid made such confession in the father"s house of Radha at Debipur in presence of so many people of Debipur. Not only that, according to P.W. 11 Rashid came at Debipur at about 4.00 P.M. and on the next day in the evening they went to the Bhasa police camp. This long detention for more than 24 hours at Debipur in the house of Radha’s father, if to be believed, goes to show that the appellant Rashid was kept under detention in the house of Radha’s father and the possibility of inducement, threat etc. cannot be ruled out. IT is also significant to note that the appellant Rashid was available after the occurrence and he did not flee away. This presence of the appellant after the occurrence is consistent with his innocence. 12. HAVING heard the learned Counsel for the parties and on the basis of materials on record we are of the considered view that no evidentiary value could be attached to the evidence of P.W. 7 and P.W. 9 and the evidence of P.W. 10 and P.W. 11 regarding extra-judicial confession is also not worthy of credence. No other corroborative evidence is forthcoming from the side of the prosecution and we find that the evidence on record is not sufficient to form the basis of conviction. Section 106 of the Evidence Act is attracted only when the prosecution succeeds in making out its own case. In the instant case the prosecution has failed to prove that the appellant made extra-judicial confession before P.W. 10, P.W. 11 and others. Under such circumstances the provision of Section 106 of the Evidence Act is not attracted and we are, therefore, unable to accept the contention of Mr. Mullick in this regard. 13. ANOTHER important aspect of this case is that prosecution could not prove the corpus delicti. The P.M. report (Exhibit - 3) itself shows that the dead body was unidentified. The brother (P.W. 10) of the deceased could not also identify the dead body as that of his sister. The learned Trial Judge was not justified in convicting the appellant and passing the sentence under the impugned judgment. We set aside the impugned judgment. The appellant is found not guilty of the charge levelled against him. The appellant is acquitted of the charge. The learned Trial Judge was not justified in convicting the appellant and passing the sentence under the impugned judgment. We set aside the impugned judgment. The appellant is found not guilty of the charge levelled against him. The appellant is acquitted of the charge. The appeal is allowed. 14. LET a copy of this order along with the lower court records be sent to the learned Court below immediately. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.