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2013 DIGILAW 961 (CAL)

Jagat Sarkar v. State of West Bengal

2013-12-24

ANIRUDDHA BOSE, SHIB SADHAN SADHU

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Judgment Shib Sadhan Sadhu, J. 1. In the instant appeal the appellant has challenged the judgment of Conviction and order of sentence dated 11.03.2005/15.03.2005 passed by the Learned Additional District & Sessions Judge, Fast Track Court, Howrah in S.T.Case No.391 of 2004 convicting him under Section 302 Indian Penal Code and sentencing him to undergo imprisonment of life and to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for one year for the offence u/s 302 IPC. 2. Put in a short frame, the prosecution case runs as under:- On 14.05.2004 in the early morning at about 05.55 hours, the appellant came to Bally P.S. and stated that in the preceeding night (13.05.2004/14.05.2004) he had committed murder of one Shakti Chakraborty of Dilip Colony near Rajchandrapur Railway Station, P.S. Bally out of previous grudge with the help of wooden stick and sickle and kept the dead body of the deceased in a ditch under the railway culvert near to the Rajchandrapur Railway Station. Accordingly, a G.D. Entry being Bally P.S. G.D.Entry No.922 dated 14.05.2004 was recorded. The Duty Officer Mr. Asit Kumar Sau, Addl. I.C., Bally P.S. informed the I.C. Bally P.S. and thereafter, he along with officers and force left P.S. along with appellant to pursue his statement. Reaching at Rajchandrapur Dilip Colony, he contacted with the family members of the deceased and collected independent witnesses and proceeded to the spot i.e. the ditch under the railway culvert adjacent to the cabin towards Dankuni side and with the help of local people brought out the dead body of the deceased which was duly identified by Smt Lakhi Chakraborty, wife of the deceased and others and mark of injuries were found on the dead body. S.I. Anirban Chakraborty held the inquest and prepared report and sent the dead body of the deceased for post mortem examination. Thereafter, on being shown by the appellant, the offending weapons namely the wooden stick in two pieces one of which was stained with blood and a handkerchief said to be belonging to the deceased were recovered from the cultivated land of Mathur Chandra Pal of Basukathi P.S., Bally, District: Howrah and one pair of Hawai Chappal of the deceased being identified by his wife found on the northern side of ‘Guyer bandh’ and the sickle measuring about 7/8” was brought out from the water of that Bandh by the appellant. The search and recovery of those offending weapons as well as the belongings of the deceased were made in presence of witnesses and were seized under seizure list duly attested by the witnesses and the appellant. 3. After returning to Bally P.S. along with the appellant and the seized articles, Inspector Asit Kumar Sau lodged a suo moto complaint on the basis of which Bally P.S. Case No.127 of 2004 dated 14.05.2004 u/s 302 IPC was registered. That case was investigated into and on completion of investigation; charge sheet was submitted u/s 302 IPC against the present appellant. Thereafter, the case was placed for trial before the Ld. Addl. District & Sessions Judge, Fast Track Court, Howrah who framed charge u/s 302 IPC against the present appellant and after conclusion of the trial, he held the appellant guilty and convicted him as aforesaid. 4. Prosecution examined in all 9 witnesses in its support. Out of those witnesses, P.W.1, Inspector of Police Sri Asit Kumar Sau is the complainant who on receipt of the information from the appellant conducted the search and recovered the dead body of the deceased and the offending weapons and other articles and made seizure under seizure list ; P.W.2 is Balaram BIswas before whom the appellant allegedly made confession. He, however, did not support the prosecution case and he was declared hostile by the prosecution; P.W.3 Madan Bar , P.W.4 Bidyut Dutta and P.W.5 Kartick Samanta are the witnesses to the inquest; P.W.6 Mathur Chandra Bag is a seizure witness; P.W.7 is A.S.I. of police Subodh Chandra Pratihar who received the written complaint from the P.W.1 and registered the case; P.W.8 is Dr. Harekrishna Chandra who held post mortem and P.W.9 S.I. Anirban Chakraborty is the Investigating Officer of the case. 5. Mr. Harekrishna Chandra who held post mortem and P.W.9 S.I. Anirban Chakraborty is the Investigating Officer of the case. 5. Mr. Jayanta Narayan Chatterjee, Learned Counsel for the appellant while advancing his argument drew our attention to the following loopholes in the alleged chain of circumstances pin pointing the guilt of the appellant:- a) Prosecution failed to prove that the appellant came to P.S. and gave any statement; b) The alleged F.I.R. in which the appellant admitted the commission of the murder is not at all believable; c) There is no evidence of enmity between the appellant and the deceased or of any motive; d) No member of the family of the deceased was examined nor any witness is there to prove that the appellant had shown the place of recovery; e) No witness has stated that local people brought out the dead body although it is alleged in the FIR; f) No G.D. Entry was seized, produced or exhibited; g) No explanation was assigned as to how the specific P.S. case number e.g. Bally P.S. Case NO.127/04 dated 14.05.2004 was inserted in the inquest report which was prepared at 9.45 hours while the said P.S. case was registered only at 1.45 PM; h) All the witnesses of seizure namely P.W.3, P.W.4, P.W.5 and P.W.6 did not support the prosecution story of presence of the appellant during the alleged search, recovery and seizure of the dead body and the incriminating articles. i) The seized articles were not sealed, labelled or identified by any witness. Also none of the witnesses put his signature on such articles; j) The alleged weapon of offence i.e. the wooden Batten was not sent for FSL examination and report. 6. He thus emphatically contended that the prosecution has miserably failed to establish the chain of circumstances so as to make it complete and unerringly fixing the appellant with the alleged offence of murder of the deceased Sri Shakti Chakraborty. So the conviction cannot be sustained and the appellant is entitled to an order of acquittal by setting aside the impugned judgment and order. He relied on the decisions reported in 1993 SCC (Cri.) 1053, (2000) 6 SCC 269 , (2001) 6 SCC 181 , (2003) 3 SCC 153 , (2003) 6 SCC 175 , (2003) 5 SCC 499 and (2008) 1 C Cr LR (SC) 862 in support of his contention. 7. Mr. He relied on the decisions reported in 1993 SCC (Cri.) 1053, (2000) 6 SCC 269 , (2001) 6 SCC 181 , (2003) 3 SCC 153 , (2003) 6 SCC 175 , (2003) 5 SCC 499 and (2008) 1 C Cr LR (SC) 862 in support of his contention. 7. Mr. Prasun Kumar Dutta, Learned Counsel for the State on the other hand wholeheartedly supported the impugned judgment and order of conviction. According to him the loopholes highlighted by his Learned Adversary lose significance in view of the fact that it is the appellant who voluntarily visited the P.S. and made confession of his guilt and also made disclosure statement in pursuance of which the dead body of the deceased, the incriminating articles including the offending weapons were recovered in presence of the witnesses. Therefore, the appellant has no escape for the crime perpetrated by him and the Ld. Trial Court has rightly convicted him u/s 302 IPC and passed the appropriate sentence which should be maintained. Mr. Dutta finally insisted upon dismissal of the appeal. 8. Having regard to the conflicting assertions advanced by the Learned Counsels in the light of the Rulings placed and after going through the written note of argument submitted by the Ld. Counsel for the appellant, we find that there is no eye witness or direct evidence to the alleged incident of murder and the entire prosecution case rests on circumstantial evidence. 9. In a plethora of decisions, the Hon’ble Supreme Court has laid down the guidelines for appreciation of evidence in a case of circumstantial evidence. In the case of Brajendrasingh Vs. State of Madhya Pradesh reported in 2012 Cr.L.J. 1883 the Hon’ble Supreme Court observed as follows:- “It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The Circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic canon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. It is a settled rule of law that in a case based on circumstantial evidence, the prosecution must establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility.” 10. There can be no dispute that the deceased Shakti Chakraborty had died homicidal death. The question is whether the prosecution has been able to connect the present appellant with the alleged crime? 11. Let us now assess the evidence on record in the perspective of the aforesaid guidelines of the Hon’ble Supreme Court. 12. There can be no dispute that the deceased Shakti Chakraborty had died homicidal death. The question is whether the prosecution has been able to connect the present appellant with the alleged crime? 11. Let us now assess the evidence on record in the perspective of the aforesaid guidelines of the Hon’ble Supreme Court. 12. Giving a close and critical look into the evidence – both oral as well as documentary with meticulous care we see that the whole prosecution edifice is built of the alleged confessional statement of the appellant containing the disclosure statement leading to the discovery of the dead body of the deceased and recovery of the offending weapons and other articles belonging to the deceased. This being the position, we think it better and profitable to have a look into the relevant provisions of the Law of Evidence. 13. Section 25 of the Indian Evidence Act reads as follows:- “S.25. Confession to police officer not to be proved – No confession made to a police officer shall be proved as against a person accused of any offence.” 14. Section 27 of the Indian Evidence Act reads as follows:- “S.27. How much of information received from accused may be proved – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 15. It is well established position of law that where FIR has been recorded on the basis of confession made by the accused before the police, this amounts to a confession to a police officer and is not admissible in evidence against the accused, by virtue of Section 25 of the Indian Evidence Act {vide 2008 Cr.L.J. 644 (Guj)} . That being so the instant FIR (Ext.1/2) has got no evidentiary value and the prosecution case turns out to be hollow and it subsides. 16. Let us now dwell upon the most trumpeted and heavily banked upon clinching circumstance e.g. recovery of dead body and other incriminating articles in pursuance of disclosure statement made by the appellant. But ironically the prosecution cuts a sorry figure on this score too for absence of any such statement in the FIR (Ext.1/2). 16. Let us now dwell upon the most trumpeted and heavily banked upon clinching circumstance e.g. recovery of dead body and other incriminating articles in pursuance of disclosure statement made by the appellant. But ironically the prosecution cuts a sorry figure on this score too for absence of any such statement in the FIR (Ext.1/2). It bears no reference or whisper that the appellant offered to lead the police party to the discovery of the dead body and other incriminating articles from the places where he had kept those concealed. Such vital missing factor being coupled with the facts that the I.O. (P.W.9) did not record any such disclosure statement of the appellant and that he did not utter the exact words used by the appellant and that there is no independent corroboration make the story of recovery inconsequential and a meaningless exercise. 17. Examining the evidence on record regarding the alleged discovery, we find that P.W.3, P.W.4, P.W.5 and P.W.6 completely disowned the prosecution case that the appellant led those discoveries. All of them stated in unison that they did not see the appellant on the spot at the time of discovery. Confirmation on this score is found from the inquest report (Ext.3) which does not bear the signature of the appellant. It is quite interesting to note that in the written complaint (Ext.1) it is mentioned that the dead body of the deceased was recovered from the ditch under the Railway Culvert adjacent to the Cabin towards Dankuni side but from the Inquest Report (Ext.3) it is reflected that the dead body of the deceased was lying under the brick built Railway Bridge at a distance of about 100 meters West of Rajchandrapur Railway Station Platform. Further it is claimed in the written complaint that the dead body and articles e.g. handkerchief and hawai chappal of the deceased were identified by Smt Lakhi Chakraborty, wife of the deceased but neither the Inquest Report (Ext.3) nor the seizure lists (Exts.4 & 5) concerned bear her reference at all. Also for reasons unexplained she was not examined although she has been cited as a witness in the charge sheet. Also for reasons unexplained she was not examined although she has been cited as a witness in the charge sheet. It remains a wonder as to how the Inquest Report (Ext.3) records the reference of Bally P.S. Case No.127/04 which was started at 1.05 PM when admittedly the Inquest was done at 9.45 A.M. Equally mysterious is the fact that the P.S. Case was started at 1.05 PM i.e. after the lapse of more than 3 hours and still the column NO.9 of the formal FIR does not bear the reference of the seized articles and it is left blank. In this context the candid admission by P.W.9 (I.O.) that he did not seize the G.D.Entry Book of Bally P.S. in this case connection wherein the complaint of public and duty charge are depicted assume significance. 18. Want of explanation as to why those articles were not sent for FSL examination to ascertain whether those contained any human blood- stain and the discovery of the weapons of offence e.g. wooden batten from an open land further shroud the alleged discovery with mystery. It is, therefore, obvious that the alleged discovery is farcical and we are, therefore, unable to accept such kind of farcical discovery. 19. In the facts and circumstance of this case, the recording of confessional statement from the appellant and the recovery of weapons and other articles based on his information appears to be a fairy tale and when especially the very FIR and the credibility of the independent witnesses are doubted, the Section 27 of the Indian Evidence Act recoveries pressed into service are required to be brushed aside. 20. It is trite law that the discovery is a weak kind of evidence and it by itself is subsidiary and cannot sustain a conviction without independent corroboration. We have already held that the prosecution has failed to prove that the alleged discovery was made in pursuance of disclosure statement made by the appellant in presence of independent witnesses. We have further pointed out that the discovery was absolutely farcical. Therefore, since the discovery fails, there would remain literally nothing to support the prosecution case. 21. In the light of the totality the aforesaid discussions, we hold that the prosecution has utterly failed to prove the guilt of the appellant u/s 302 of the IPC. We have further pointed out that the discovery was absolutely farcical. Therefore, since the discovery fails, there would remain literally nothing to support the prosecution case. 21. In the light of the totality the aforesaid discussions, we hold that the prosecution has utterly failed to prove the guilt of the appellant u/s 302 of the IPC. We, therefore, allow this appeal and set aside the impugned judgment and order of conviction and sentence passed by the Ld. Trial Court and acquit the appellant of the said charge. 22. The appellant Jagat Sarkar is in jail and he shall be released and be set at liberty forthwith unless wanted in any other case. 23. Let the Lower Court Record be sent down to the Court below at once. Criminal Section is directed to deliver urgent Photostat copy of this judgment to the parties, if applied for, as earliest as possible. Aniruddha Bose, J. : I agree.