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2012 DIGILAW 133 (CAL)

Charua Munda v. STATE OF WEST BENGAL

2012-02-13

GIRISH CHANDRA GUPTA, INDIRA BANERJEE

body2012
JUDGMENT Girish Chandra Gupta, J. 1. THIS appeal is directed against a judgment and order dated 8th October, 2004 by which the learned Additional Sessions Judge, Fast Track Court, Alipurduar in Sessions Trial No. 31 of 2004 connected with Sessions Case No. 76 of 2004 {State v. Charua Munda) convicted the sole accused of an offence punishable under Section 304 of the Indian Penal Code and sentenced him to imprisonment for life as also to pay a sum of Rs.5,000/- by way of fine, in default to undergo further imprisonment for a year. The reasoning adopted by the learned trial Court for the purpose of convicting the accused is as follows:- " in the instant case the evidence like calling the victim from his house by the accused and the accused and the victim last seen together within 2 hours from the death of the deceased and the victim going away from his house and hiding himself for about 10 days soon after the incident and also he himself being caught by the local people and he is surrendered to the P. S and also he himself offering no explanation or rather he gave false explanation at the relevant time that he was engaged in work and also during the period of absence he went out for work and such false explanation of the accused is added as an additional link to the chain of the event presented by the prosecution before this court and further this court is satisfied from proved circumstances here from which inference of guilt of the accused could be drawn only and thus, the circumstance unerringly point to the guilt of the accused and, further, all these circumstances when taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused and also those circumstances being consistent and conclusive in nature exclude the possibility of guilt of any other person than the accused." 2. MR. Kallol Mondal, learned Counsel appearing for the appellant, engaged by the Court, submitted that there is absolutely no evidence on the basis of which the appellant could have been convicted of the offence punishable under section 304 IPC. 3. MR. Sanyal assisted by MR. MR. Kallol Mondal, learned Counsel appearing for the appellant, engaged by the Court, submitted that there is absolutely no evidence on the basis of which the appellant could have been convicted of the offence punishable under section 304 IPC. 3. MR. Sanyal assisted by MR. Dey appearing for the state submitted that this Court has to reassess the evidence, although he did not dispute the fact that there is no evidence on the record to establish that the deceased was last seen with the accused at any material point of time. We, therefore, propose to look into the evidence adduced by the prosecution. 4. THE dead body of the deceased was found between 8-9 p.m. of 19th April, 2004 by witnesses which we shall presently discuss. THE written complaint was lodged by Smt. Falo Nagasia, daughter in law of the deceased, on 20th April, 2004 at about 10.05 hrs. in the morning alleging that the accused at around 6 pm. on 19th April, 2004 invited the deceased at his house to perform puja. At 9 p.m. she was informed by the villagers that her father-in-law had been killed. THE complainant suspected that the said accused had called her father-in-law with the object of killing him and ultimately the victim was killed by a blunt heavy weapon. THE written complaint was marked ext.5. From the sketch map, prepared by the I.O., it appears that the dead body of the deceased was found on the Kaccha road leading towards Baniyabasra river in between the houses of the accused and one Etwa Oraon. From the postmortem report, marked ext. 8, it appears that the death was due to the injuries which were ante mortem and homicidal in nature caused by some blunt weapon. From the place of occurrence that is to say where the dead body was found a black color stick, bloodstained and controlled earth amongst others were seized vide ext.2. THE inquest was conducted at 10.55 hrs. on 20th April, 2004 and the injuries appeared to have been inflicted by a blunt weapon on the right eye, right side of the neck and on the scalp. Upon primary investigation by the I.O., identical information as those appearing from the written complaint were elicited. 5. 11 WITNESSES were examined by the prosecution and none on behalf of the defence. P.W. 1 is the complainant herself. Upon primary investigation by the I.O., identical information as those appearing from the written complaint were elicited. 5. 11 WITNESSES were examined by the prosecution and none on behalf of the defence. P.W. 1 is the complainant herself. She during her examination- in-chief reiterated the information furnished in the written complaint. She however added that the dead body was found in front of the house of the accused. She also added that it is the accused who had assaulted and killed her father-in-law. During the cross-examination she admitted that she did not see the commission of the act of assault. She also admitted that she was informed by the villagers that the dead body of her father-in-law was lying in the road. She also admitted in her cross-examination that "near the place of occurrence there was house of Etwa Oraon and the dead body was lying in front of the house." Therefore, the two significant additions, which she made during her examination-in-chief were eliminated in the cross-examination. She no more stuck to her stand that the dead body was found in front of the house of the accused or that the accused had killed her father-in-law. Therefore the original version that she suspected that the accused might have killed her father-in-law remained. During cross- examination she admitted that she was a follower of Congress party. On behalf of the defence it was suggested that the accused was a follower of CPI(M) party. She was suggested during cross-examination on behalf of the defence that neither the accused invited the deceased at his house nor did the deceased go to his house for worshiping as alleged by her nor did the accused kill the victim. It was also suggested that the victim had been implicated due to political rivalry. The suggestions were however denied. 6. P.Ws. 2, 3 and 4 are the witnesses, who had found the dead body lying on the road. All the three had gone to work and were returning home together in their respective bicycle. P.W.2 deposed as follows:- " It was about 8 p.m in the night. All on a sudden my cycle got obstructed by the leg of a man in front of the house of Charua Munda. I then and then got down from my cycle and found the man who caught hold of a lathi in his hand. P.W.2 deposed as follows:- " It was about 8 p.m in the night. All on a sudden my cycle got obstructed by the leg of a man in front of the house of Charua Munda. I then and then got down from my cycle and found the man who caught hold of a lathi in his hand. As it was darkness so we could not see his face but seeing the lathi we could identify that he was none other than Madho Nagasia of our village. Then and then I went to his house and called his daughter-in-law i.e. Mahendra's wife who came to the P.O with a lamp in her hand. Seeing the man in the light of the lamp we could ascertain that he was Madho Nagasia who sustained bleeding cut injuries on the back side of neck and on face. Madho Nagasis was an old man. She told me that someone called Madho Nagasis from his house." 7. P.W. 3 was accompanying the P.W. 2 when the dead body was recovered. He in his examination-in-chief deposed that "Mahendra's wife Falo did not tell us anything as to how the old man died." During his cross-examination he also deposed that the dead body was lying neither in front of the house of the accused nor in front of the house of Etowa Oraon. 8. P.W.4 another companion of P.Ws.2 and 3 deposed that seeing the dead body he straightaway went home. He, however, added that the dead body was. lying in front of the house of the Charua Munda the accused. 9. FROM the evidence of the P.Ws.2, 3 and 4 it appears that the defacto complainant (P.W.1) though was informed by the P.W.2 and the P.w.3 as regards the dead body she did not divulge to the P.W.2 that it is the accused who had invited the deceased at his house. She on the contrary allegedly told the P.W. 2 that someone had called the deceased. Whereas the evidence of the P.W. 3 is that the P.W. 1 did not tell them anything as to how did the old man die. Therefore, the story that it is the accused who had invited the deceased at the house of the former for the purpose of performing Puja was not supported by P.W. 2 or 3. Whereas the evidence of the P.W. 3 is that the P.W. 1 did not tell them anything as to how did the old man die. Therefore, the story that it is the accused who had invited the deceased at the house of the former for the purpose of performing Puja was not supported by P.W. 2 or 3. As regards the location where the body of the deceased was found the P.W. 2 deposed in his examination-in-chief that the body was on the road in front of the house of the accused but in the cross- examination he deposed that the dead body was lying on the kacha road whereas the version of the P.W. 3 is that the dead body was lying neither in front of the house of the accused nor in front of the house of Etowa Oran. P.W.4 during his cross-examination admitted that the body was lying in front of house of the Etowa Oran. P.W. 5 during his examination-in-chief deposed that the body was lying in front of the house of the accused. But during his cross-examination he deposed that the dead body was lying in front of the house of the Etowa Oran. P.W. 6 the son of the deceased and the husband of the P.W. 1 deposed that he was not at home on the fateful day and in the morning when he came back he found the dead body of his father lying on the road in between the houses of the accused and Etowa Oran. The same is also the evidence of P.W. 7, P.W. 8, a constable, deposed that he had found the dead body in front of the house of the accused which however is contrary to the inquest report according to which the body was found in between the houses of the accused and Etowa Oran. 10. PREPONDERANCE of the evidence is not in favour of the proposition that the dead body was lying in front of the house of the accused. The body was lying on the Katcha road, may be in between the house of the accused and the house of Etowa Oran. Had the body been found lying in front of the house of the accused, this fact would have been indicated by the defacto complainant in her written complaint which she did not. 11. The body was lying on the Katcha road, may be in between the house of the accused and the house of Etowa Oran. Had the body been found lying in front of the house of the accused, this fact would have been indicated by the defacto complainant in her written complaint which she did not. 11. AS regards the other important fact as to whether the accused had called the deceased to perform a Puja at his house, we already have indicated the divergent version of the complainant made before the P.Ws. 2 and 3. P.W. 6. The husband of the P.W.1, however, deposed that he had been able to ascertain from his wife that the accused had called his father for the purpose of performing puja at his house. He however admitted during his cross examination that "prior to the incident my father did not do any Puja in anybody's house". P.W. 7 another co-villager deposed that "I have not seen Madho Nagasia worshiping in the house of Charua Munda but I saw him worshiping in his own house. P.W. 7 also disclosed that the deceased used to perform the job of an "Ojha" (exorcist) . 12. FROM the evidence discussed above we are inclined to believe that the deceased was an Ojha (exorcist). We are also inclined to believe 'that the accused may have requested the deceased to come to his house. The reason why we believe so is that there is dependable evidence to indicate that soon after the death of the deceased the accused disappeared from the village. This also gives the requisite assurance as to the fact that he invited the deceased to come to his house and within hours he died. But the difficulty arises from the fact that there is no information whatsoever as to when did the victim leave his house and where did he go. 13. P.W. 11 is the autopsy surgeon. He deposed as regards the examination conducted by him as follows: - "On examination I found large lacerated wound over right eye, another lacerated wound on right occipital temporal region, another lacerated wound over occipital region. In my opinion the cause of death was due to above mentioned injuries which was ante mortem and homicidal in nature caused by blunt weapon. This is the P.M report prepared and signed by me already marked Ext.-8. In my opinion the cause of death was due to above mentioned injuries which was ante mortem and homicidal in nature caused by blunt weapon. This is the P.M report prepared and signed by me already marked Ext.-8. The wearing apparels and P.M blood of the deceased were handed over to C/No. 125 Jamini Kanta Barman. (To Court) by bleeding + I mean discharge of blood stained fluid from the injury." 14. P.W. 8 and P.W. 9 are the official witnesses. P.W. 8 is the constable and P.W.9 is the Sub-Inspector. P.W. 10 is the local MLA. He deposed that he did not know how did the deceased die. There is no other witnesses nor is there any other documentary evidence. 15. FROM the evidence, discussed above, following points are established. A. The accused invited the deceased to come to his house for the purpose of performing some Puja. B. The dead body of the victim was found on the road in between the houses of the accused and Etowa Oraon. The distance between the place where the dead body was lying and the house of accused was 20 to 25 ft. as would appear from the evidence of P.W.7. C. The accused made himself scarce from the date of the incident and was ultimately seen hiding in the jungle by the children and thereafter the elders were informed. The accused was caught, detained and ultimately made over to the Police as would appear from the evidence the P.Ws 6,7,9 and 10. The fact that the accused had absconded after the death was also admitted by him during his examination under section 313 of the Code of Criminal Procedure. In answer to question No. 14 he stated as follows :- "After the death of the old man I was not at my home as because I went to do job." 16. IN answer to question No. 34 the accused stated as follows :- "I did not kill that old man. I am not guilty. On the day of occurrence I returned my home at 9 p.m. I did not see any dead body. Police had involved me in this false case. I was not in my house after the occurrence as because I went to my place of job." 17. I am not guilty. On the day of occurrence I returned my home at 9 p.m. I did not see any dead body. Police had involved me in this false case. I was not in my house after the occurrence as because I went to my place of job." 17. THERE is no evidence to suggest that the deceased had in fact gone to the house of the accused nor did any one see them together. It cannot be therefore said by any stretch of imagination that the victim was last seen together with the accused. It is, therefore, not for the accused to account for the death of the deceased. In the case of Rahman v. State of U.P. reported in 1972 (4) SCC (Notes) 6 it was held that "Absconding by itself is not conclusive either of guilt or of a guilty conscience. For a person may abscond on account of fear of being involved in the offence or for any other allied reason." We are, as such, unable to hold him guilty. 18. THE appeal in the result succeeds and is allowed. THE appellant is discharged of the bail bond furnished by him. 19. LOWER Court Records with a copy of this judgment be sent down to the learned trial Court forthwith. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible. Appeal allowed.