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2012 DIGILAW 525 (CAL)

In the matter of : Bipta Kharia v. .

2012-06-19

DIPAK SAHA RAY, TAPEN SEN

body2012
JUDGMENT Dipak Saha Ray, J.: The instant appeal arises out of an application under Section 374 CrPC. 2. It is directed against the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Alipurduar on 9.4.2007 in connection with Sessions Case No. 65 of 2001 arising out of Birpara P.S. Case No. 62 of 1996 under Section 302 IPC. 3. The said case was started on the basis of a written complaint filed by one Larry Kharia on 8.8.1996 before the Officer-in-charge of Birpara P.S. The defacto-complainant in his written complaint alleged that on 17.7.96 at about 12 o’clock, Bipta Kharia accompanied by his wife Ganduri, his child and one neighbour namely Mota Orao went to Rath Mela on the day of Rathyatra. On the next day, Bipta Kharia informed the defacto-complainant that his wife Ganduri was missing from Birpara Rathmela and that inspite of search she could not be traced out. He further alleged that 4-5 days before lodging the written complaint, Mota Orao informed him in presence of the local villagers that at about 9 P.M. on the day of Rathyatra, Bipta Kharia killed his wife at Birpara Tea Garden by throttling her and thereafter threw away the dead body of his wife. Accordingly, Bipta Kharia was interrogated by the villagers and at that time Bipta Kharia confessed that on the day of Rathyatra, he killed his wife at Birpara Tea Garden by throttling her. On hearing the above facts, some of the villagers became furious and assaulted him (Bipta); as a result, Bipta Kharia was shifted to hospital for his treatment. 4. It is further contended in the written complainant that subsequently on 22.7.96, the defacto-complainant came to know that the Police of Birpara P.S. recovered one decomposed dead body of a female. On getting such information, he came to the P.S. on 8.8.96 and after seeing the photographs of the deceased, he identified the dead body as Ganduri, the daughter of his brother. On the basis of his written complaint, Birpara P.S. Case No. 62 of 1996 was initiated. 5. The Police after completion of investigation submitted charge-sheet in this case for the offence punishable under Section 302 IPC. 6. On the basis of the aforesaid allegations and other relevant materials, the accused person was tried for the offence under Section 302 IPC. On the basis of his written complaint, Birpara P.S. Case No. 62 of 1996 was initiated. 5. The Police after completion of investigation submitted charge-sheet in this case for the offence punishable under Section 302 IPC. 6. On the basis of the aforesaid allegations and other relevant materials, the accused person was tried for the offence under Section 302 IPC. The accused, however, pleaded not guilty and claimed to be tried when the said charge was read over and explained to the accused person. 7. As against this, the defence case, as it appears from the trend of cross-examination and the statements made during examination of the accused under Section 313 CrPC, was the denial of the prosecution allegations and the plea of innocence. 8. The prosecution in order to discharge the burden of establishing the guilt of the accused person, examined as many as 15 witnesses. 9. After taking into consideration all relevant facts and circumstances and the evidence on record, the learned trial court found the accused person guilty for the offence punishable under Section 302 IPC and the accused person was convicted accordingly. 10. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence, the convict as appellant has preferred the instant appeal. 11. The grievances of the appellant may be capsulated in a few sentences as follows: 12. The learned trial court failed to appreciate the evidence on record on its proper perspective and approached the case from a wrong angle and this has resulted in failure of justice. The learned trial court failed to take note of the fact of other inconsistencies of the evidence on record and as such came to an erroneous decision. 13. After taking into consideration all relevant facts and materials on record and giving due regard to the submissions made by the learned counsels for both the parties, we think that the only point requiring adjudication is whether or not the impugned judgment and order of conviction and sentence passed by the learned trial court are liable to be set aside. 14. Mr. Sabyasachi Banerjee, learned counsel appearing for the appellant has submitted that during trial the prosecution has failed to pinpoint the place wherefrom the dead body said to be the dead body of Ganduri Kharia was recovered as there is contradictory evidence in this regard. 14. Mr. Sabyasachi Banerjee, learned counsel appearing for the appellant has submitted that during trial the prosecution has failed to pinpoint the place wherefrom the dead body said to be the dead body of Ganduri Kharia was recovered as there is contradictory evidence in this regard. He has further submitted that the prosecution case is based on the evidence of PW 1, but his evidence in court contradicts his statement recorded under Section 164 CrPC, and as such the conviction of the appellant mainly on the basis of the said evidence was unsafe. It has also been argued that the prosecution has failed to establish that the dead body in question was actually the dead body of Ganduri Kharia, wife of Bipta Kharia. 15. Mr. Banerjee has also pointed out that the cause of death of the victim has also not been established and as such the conviction based on the basis of erroneous appreciation of the evidence is liable to be set aside. 16. There is no controversy that Ganduri Kharia was the wife of Bipta Kharia, the accused of this case. There does not appear to be any dispute that one highly decomposed dead body was recovered on 22.7.96 and accordingly the instant case was initiated. There is also no dispute that the Inquest and Postmortem examination were held over the said decomposed dead body. 17. The controversy mainly relates to the question as to: i) whether the decomposed dead body recovered on 22.7.96 was the dead body of Ganduri Kharia; ii) whether the said dead body was recovered from the place as mentioned in the rough sketch map marked Ext. 4 and iii) whether the victim was murdered by way of throttling and that it was the accused who committed the said murder. 18. It is the cardinal principle of criminal law that prosecution must establish with the evidence on record that the incident happened at the time, in the place and under the precise circumstances narrated on its behalf. 19. In the instant case, from Ext. 4, the rough sketch map, it appears that the dead body was recovered from Birpara Tea Garden Bush. Now from the evidence of PW 4, Dinesh Ghosh deposed on 6.1.2005, it appears that the said decomposed dead body was recovered from a drain situated inside Birpara Tea Garden. 19. In the instant case, from Ext. 4, the rough sketch map, it appears that the dead body was recovered from Birpara Tea Garden Bush. Now from the evidence of PW 4, Dinesh Ghosh deposed on 6.1.2005, it appears that the said decomposed dead body was recovered from a drain situated inside Birpara Tea Garden. On the other hand, PW 10, Sri Birendanath Pal, A.S.I. of Birpara P.S. who held the Inquest over the said decomposed dead body on 22.7.96, during his cross-examination, has stated that there was no quarter near the place where the dead body was lying as it was a dense forest. So, it is evident that there is contradiction between the evidence of PW 4 and PW 10 with reference to rough sketch map (Ext. 4) as Ext. 4 does not go to show that the said dead body was recovered from the drain of that Tea Garden. 20. The alleged date of occurrence was 17.7.96 and the decomposed dead body was recovered on 22.7.96 and several photographs of the said highly decomposed dead body were taken. Subsequently, on 8.8.96, the defacto-complainant (PW 5) after comparing previous photograph of Ganduri Kharia with the photographs of the deceased’s decomposed dead body recovered on 22.7.96, identified the photographs of decomposed dead body as the dead body of Ganduri Kharia. But it is surprising to note that neither the said photographs of the decomposed dead body which were taken at the spot, nor the photograph of Ganduri Kharia which was said to have been brought by the defacto complainant, has been admitted in evidence. So, it is not established beyond reasonable doubt that there was similarity between the photographs of the highly decomposed dead body taken on the spot on 22.7.96 and the photograph of Ganduri Kharia which was brought from the house. It is not the case of the prosecution that PW 5 identified the said dead body by seeing either the wearing apparels or the ornaments or the special identification marks of the dead body or other physical features. So the alleged identification by way of comparison of the photographs is totally unsafe and unreliable, particularly when the identification of the corpus delicte is at controversy. Accordingly, it appears that the prosecution has failed to prove that the decomposed dead body recovered on 22.7.96 was actually the dead body of Ganduri Kharia. 21. So the alleged identification by way of comparison of the photographs is totally unsafe and unreliable, particularly when the identification of the corpus delicte is at controversy. Accordingly, it appears that the prosecution has failed to prove that the decomposed dead body recovered on 22.7.96 was actually the dead body of Ganduri Kharia. 21. It is settled principle of law that the FIR sets the criminal law in motion and it can be used as a previous statement for the purpose of corroboration or contradiction of its maker. But it is surprising to note that the FIR/written complaint of this case has not been proved. 22. It has already been pointed out that the prosecution case is essentially based on the evidence of PW 6 namely Mota Orao who is said to have witnessed the occurrence. So, we shall analyse and evaluate the testimony of this witness. This witness in his oral evidence in chief before the court has stated that “Bipta Took his wife Gandhari inside Birpara T.G. Thereafter, at 7.00 P.M. Bipta alone came to me and at that time his wife was not with him”. He further stated that “after coming back to me on road from inside the Birpara T.G. Bipta stated to me that he killed his wife”. 23. During cross-examination, this witness has stated that Bipta said to him that he (Bipta) killed his wife. He also stated during his further cross-examination that he did not see “Bipta Kharia to murder his wife Ganduri Kharia by strangulation at her neck”. 24. From the above evidence of PW 6, it appears that he never saw Bipta Kharia to throttle his wife to death. But it is curious to note that this witness during his statement recorded under Section 164 CrPC by the learned Judicial Magistrate (marked as Ext. 9), has stated that he saw at a distance that Bipta throttled his wife in such a way that his wife failed to make any noise. Sometime, thereafter, Bipta came to him and informed that he killed his wife Ganduri Kharia. So, it is evident that there is major inconsistencies and antagonistic contradictions between the evidence made before the court and the statement made before the learned Judicial Magistrate which was recorded under Section 164 CrPC. So, there is infirmity in the evidence of PW 6. 25. So, it is evident that there is major inconsistencies and antagonistic contradictions between the evidence made before the court and the statement made before the learned Judicial Magistrate which was recorded under Section 164 CrPC. So, there is infirmity in the evidence of PW 6. 25. It further appears from the evidence of PW 6 that on the day of occurrence at night he (Mota Orao), Bipta and the daughter of Bipta spent night in the house of Dulu at Jaleswar. The evidence of PW 7, Dulu Kharia corroborates the above facts that Bipta, his daughter and Mota Orao spent night in the house of Dulu Kharia. But at that time, Mota Orao did not disclose the above facts that Bipta committed murder of his wife to anybody. Subsequently, 17/18 days thereafter, he (Mota Orao) disclosed the above matter regarding the murder of Ganduri Kharia to PW 5, the defacto complainant of this case. 26. In the instant case, no explanation whatsoever is forthcoming as to why Mota Orao did not disclose to anybody else that he saw Bipta to murder his wife and why, after long lapse of time i.e., 15/16 days after the occurrence, he decided to disclose the said facts. From the discussion, made above the evidence of PW 6 does not inspire confidence and safe reliance cannot be placed on this testimony. 27. In this case, the cause of death of the person in question (whose dead body was recovered on 22.7.96) has also not been ascertained as the autopsy surgeon failed to do the same on account of the highly decomposed state of the concerned dead body. No concrete evidence is also forthcoming from which it can be established beyond all doubt and dispute, beyond all confusion or controversy that the concerned person was murdered. So, in the absence of specific evidence in this regard, it cannot be concluded that the death was ante-mortem and homicidal in nature to exclude the possibility of the death being suicidal or accidental in nature. 28. After careful consideration of the evidence on record we are inclined to hold that there is inherent inconsistencies and antagonistic contradictions so as to raise doubt as regards the genuineness of the evidence on record. It is well settled that the prosecution is required to prove its case beyond all reasonable doubt. 28. After careful consideration of the evidence on record we are inclined to hold that there is inherent inconsistencies and antagonistic contradictions so as to raise doubt as regards the genuineness of the evidence on record. It is well settled that the prosecution is required to prove its case beyond all reasonable doubt. Unless, the evidence is good enough to warrant a clear finding as to the facts and as to the guilt of the accused, no conviction under this Section can be arrived at. 29. From the above discussion in this case, it appears that the prosecution has failed to establish the guilt of the accused person under Section 302 IPC beyond all reasonable doubt and to the satisfaction of the judicial conscience of the court. So, the impugned judgment and order of conviction and sentence, which has been sought to be assailed call for and deserve, interference. So, the criminal appeal succeeds. 30. The criminal appeal is, accordingly, allowed on contest. The judgment and order of conviction and sentence passed by the learned court below are hereby set aside. The appellant/convict namely Bipta Kharia is found not guilty for the offence punishable under Section 302 IPC. He is acquitted accordingly. He be set at liberty and be released from his bail bond forthwith. 31. Let a copy of this judgment alongwith the LCR be sent to the learned court below at once. 32. Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.