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2013 DIGILAW 155 (CAL)

Kalipada Manna v. State of West Bengal

2013-03-15

Asim Kumar Ray, Narida Patherya

body2013
JUDGMENT Asim Kumar Ray, J. Being aggrieved by and dissatisfied with the judgment and order of conviction dated 28-9-2005 and sentence dated 30-9-2005 passed in Sessions Trial No. XI/September/2004 by the learned Additional District and Sessions Judge, Fast Track Court, Haldia, Purba Medinipur whereby the appellant Kalipada Manna has been sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/- for the offence punishable under Section 302 of IPC and along with Gostho Behari Manna and Arati Manna to suffer imprisonment for one year and to pay a fine of Rs. 1,000/- in default to suffer R.I. for six months for the offence punishable under Section 498A IPC, this appeal has been preferred by the appellant Kalipada Manna. 2. Concisely stated, the case of the prosecution is that victim Saraswati Manna daughter of Subal Chandra Manna /de facto complainant got married with accused/appellant Kalipada Manna, son of Gosto Behari Manna and Arati Mana on 19th day of Falgun, 1410 B.S. according to Hindu rituals. Since after the marriage the appellant/husband and his parents subjected Saraswati to physical and mental torture. Saraswati reported the said torture on her to her parents during her visit to her father’s place. On 6-4-2005 Kalipada along with Saraswati came to the maternal uncle’s house of Saraswati at Hazrapota village. On 9-4-2004 around 8 a.m. the de facto complainant /father was informed by some people that his daughter Saraswati had died. He arrived at the place of occurrence and found the dead body of his daughter lying by the side of the railway line near village Hazrapota. He lodged FIR at Haldia GRPS on 10.4.2004. 3. On the basis of the FIR Haldia GRPS case No. 1 of 2004 dated 10-4-2004 was started. The case was investigated. On completion of the investigation charge sheet under Section 498A/302/34 of IPC was submitted against the appellant Kalipada Manna, Gostho Behari Manna and Smt. Arati Manna. 4. The case was committed to the learned Sessions Judge, Purba Medinipur and the same was subsequently transferred to the learned Court below for disposal. On receipt of the case the learned Additional Sessions Judge, Fast Track Court, Haldia framed charge against the accused persons under Sections 498A/302/34 IPC. The charge was read over and explained to them to which they pleaded not guilty and claimed to be tried. 5. On receipt of the case the learned Additional Sessions Judge, Fast Track Court, Haldia framed charge against the accused persons under Sections 498A/302/34 IPC. The charge was read over and explained to them to which they pleaded not guilty and claimed to be tried. 5. In course of trial as many as 28 witnesses were examined. Beside oral evidence some documents have been exhibited. On appreciation of the evidence on record the learned Court below passed the impugned judgment and order of conviction and sentence. Hence, this appeal. 6. Learned counsel appearing for the appellant Kalipada Manna has contended that there is no eye witness in this matter. The case is based on circumstantial evidence. The chain of circumstance has not at all taken shape. The alleged extra judicial confession made by the appellant Kalipada Manna is not admissible in the eye of law as it has no evidentiary value. The evidence regarding last seen together is not substantive evidence. This is a case of death of the victim on a railway track. Neither the station master nor the guard of the concerned train was examined. They were not even examined by the I.O. during investigation. The judgment, order of conviction and sentence is erroneous, and be set aside. 7. Learned counsel appearing for the State has contended that the evidence of P.W.1 /father, P.W.11/mamima, P.W.21/neighbour and P.W.24/mother are vital. It is evident from their evidence that the victim was subjected to torture at the instance of the appellant. P.W.11 has stated that the victim was in the company of her husband/appellant Kalipada prior to her death. But at the same time it is submitted by the learned counsel of the State that evidence of torture stated by the P.W.11 has not been corroborated by P.W.2, the husband of P.W.11. P.W.21 has stated about a dispute between husband and wife which does not constitute an offence punishable under Section 498A of IPC. Regarding the evidence of last seen together he has invited our attention to the evidence of P.W.3 and P.W.11 and has submitted that the same cannot be taken as substantive evidence. There is no evidence to show that the death of the victim was homicidal. Accordingly he has submitted that it is upto the Court to decide the fate of the appeal. 8. There is no evidence to show that the death of the victim was homicidal. Accordingly he has submitted that it is upto the Court to decide the fate of the appeal. 8. It is not disputed that the alleged incident of death of the victim was not witnessed by anyone. Therefore, in the absence of any eye witness/ocular evidence the entire case of the prosecution is based on circumstantial evidence. It is a well settled principle that in such type of cases the evidence on record and the materials thereto should connect the accused with the crime and it should point to the conclusion that it was the accused/appellant and the accused/appellant alone who perpetrated the offence and the evidence adduced was incompatible with his innocence. Therefore, the only inference from the proved fact should be that the accused/appellant committed the offence resulting in the death of his wife. In such circumstances, conviction can only be based on such circumstantial evidence and our endeavour is to see the said circumstantial evidence. 9. We have already noted above that the prosecution has produced as many as 28 witnesses. Out of those 28 witnesses P.W.1/father/de facto complainant, P.W.11/maima, P.W.21/neighbour, P.W.26/Doctor/Autopsy Surgeon, P.W. 24/mother and P.W.28/I.O. are the vital witnesses. The evidence of the rest witnesses is hearsay evidence. Some witnesses were declared hostile and some are formal witnesses. 10. P.W. 1 is the father who set the prosecution ball in motion by lodging the FIR. He has stated in his evidence that since after the marriage his daughter was subjected to torture both physical and mental by the appellant and others of which he came to know from his daughter at the time of her visit to his place after marriage. He was subjected to cross-examination and in course of his cross-examination he has stated he cannot recollect the date/month/year when his daughter reported to him about the torture on her by the accused person. He has also stated that he has not reported the torture on his daughter by her husband at her matrimonial home either at Nandakumar Thana or at Tamluk P.S. His evidence does not contain the narration of the torture. It is not clear as to what sort of torture his daughter was subjected to. 11. He has also stated that he has not reported the torture on his daughter by her husband at her matrimonial home either at Nandakumar Thana or at Tamluk P.S. His evidence does not contain the narration of the torture. It is not clear as to what sort of torture his daughter was subjected to. 11. P.W. 24 is the mother who has stated in her evidence that accused persons used to assault her daughter over the issue of domestic work which they came to know from her daughter at the time of her visit to their place. She was subjected to cross-examination and in course of cross-examination she has stated that she has not stated to the I.O. that her daughter at the time of her visit to her father’s place stated about torture upon her at the instance of the accused persons for non-performance of household work properly. The evidence of the mother, therefore, suffers from embellishment and has no evidentiary value. 12. P.W. 21 is a neighbour. He has stated in his evidence that during the stay of victim at her matrimonial home he found some dispute between the victim and the accused persons over the issue of household work. There is no evidence that Saraswati was subjected to torture by the accused persons during her stay at her matrimonial home. 13. The evidence of the FIR maker/P.W.1 regarding the torture remains isolated. The evidence of P.W.21 does not lend any corroboration to the evidence of FIR maker. There is no iota of evidence regarding the torture on the victim at the instance of the accused persons/ appellant at her matrimonial home since after her marriage. 14. P.W.11 is the mamima of the victim. She has stated in her evidence that on 25th day of Chaitra, her niece Saraswati, victim along with her husband/Kalipada came to their residence at the time of Sitala Puja. On the date of Sitala Puja her niece along with her husband proceeded towards the nearby railway station for a visit. Sometime after she found some people were chasing the husband of her niece /Kalipada and he was running towards their house. Those people told her that he has murdered her niece and her dead body is lying beside the railway line. Sometime after she found some people were chasing the husband of her niece /Kalipada and he was running towards their house. Those people told her that he has murdered her niece and her dead body is lying beside the railway line. The evidence of P.W.11 is the solitary evidence regarding the fact that she has seen the victim in the company of her husband/Kalipada proceeding towards the railway line. In a case based on circumstantial evidence this isolated solitary evidence is not safe to rely on to record an order of conviction. 15. It is an admitted fact that the body of the victim was lying near the railway line. Inquest of the body was held by the Officer-in-Charge, GRPF, Haldia on the spot. But neither the station master of the nearest railway station nor the guard of the offending train was examined by the I.O. in course of investigation. Naturally they have not been cited in the charge sheet as prosecution witnesses and accordingly they have not been examined from the side of the prosecution. The statement recorded by the Magistrate /P.W.27 reveals that the appellant has given a statement saying that his wife was hit by a running train while he was away for answering nature’s call. 16. This statement is not helpful to the prosecution case and it cannot be said that the statement is a confessional statement. Besides the Officer-in-charge of GRPF, inquest was also conducted by P.W.15 who is an Executive Magistrate. 17. The extra judicial confession is treated to be a very weak piece of evidence when the said statement is made by an accused voluntarily before someone or before the public. In the instant case there is specific evidence that the accused/appellant was chased by a mob. He was confined, tied with rope and even assaulted to extract confession. The extra judicial confession which the appellant has made is valueless and hit by Section 24 of the Indian Evidence Act. 18. So after critical analysis of the evidence and the circumstances coming out therefrom we are of the considered opinion that evidence is very poor and has failed to form a ring of circumstances pointing towards the guilt of the appellant. The judgment, order of conviction and sentence impugned calls for interference and is set aside. 19. In the result, the appeal stands allowed. 20. The judgment, order of conviction and sentence impugned calls for interference and is set aside. 19. In the result, the appeal stands allowed. 20. The appellant /Kalipada Manna be released forthwith and set at liberty, if not wanted in connection with any other case. Urgent Photostat certified copies of judgment, if applied for, be given to the parties on usual undertaking. Patherya, J.: I agree.