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2014 DIGILAW 1079 (CAL)

Bablu Mallick v. State of West Bengal

2014-11-19

NISHITA MHATRE, SAMAPTI CHATTERJEE

body2014
Judgment Nishita Mhatre, J. 1. The appeal is directed against the decision of the Judge, Special Court cum- Additional Sessions Judge, Burdwan in Sessions Case No. 27 of 2003 dated 21st February, 2004. The appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to suffer imprisonment for life and to pay a fine of Rs.2000/-(Rupees Two Thousand only); in default of payment of fine the appellant has been directed to suffer rigorous imprisonment for six months. 2. A complaint was lodged on 13th March, 2001 by Uttam Mallick stating that his brother Khokon Mallick had been killed while he was sleeping in the paddy field on 12th March, 2001. The complainant mentions that Khokon and Binode Roy used to water the paddy field and at night they slept in a hut on the field. At 2.00 a.m. on 13th March, 2001, Binode found that Khokon was not present in the hut. He then went near the shallow pump near the hut and saw Khokon lying there with his throat slit. Binode Roy then called out to Motilal Hembram who resided on the other bank of the pond. Motilal Hembram and Binode then informed the members of the family of Khokon about his death. The complaint was sent on 20th March, 2001 to the SDJM, seven days after the FIR was registered. 3. The appellant was arrested about six months after the death of Khokan although he was not named in the complaint as the assailant. The inquest was conducted on the same day at about 9.00 a.m. The description of the dead body and the injuries sustained have been mentioned in the inquest report. From a primary investigation it was mentioned that the body was found lying near the shallow machine which belonged to Chittaranjan Ghosh. The preliminary investigation did not indicate that the appellant was the assailant. 4. The prosecution has attempted to prove its case by examining 12 witnesses. PW 2 Binode Roy has stated that he found Khokon absent in the hut at about 2.30 a.m. on 13th March, when he awoke. He searched for him and found him lying near the shallow machine. He claimed that he called out to the appellant who resided a short distance away from the shallow pump because the appellant Bablu was the brother-in-law of the deceased. He searched for him and found him lying near the shallow machine. He claimed that he called out to the appellant who resided a short distance away from the shallow pump because the appellant Bablu was the brother-in-law of the deceased. Bablu was not present and his house was locked. The witness states that he informed Motilal Hembram about the death of Khokon. PW 3, Motilal Kenbram has corroborated the version of PW 2. Both PWs 2 and 3 then informed PW 1, Khokon’s brother of the incident. 5. PW 4 is a villager residing in the same village. He was informed by Motilal Hembram, PW 3, about the death of Khokon. He claims to have reached the place of occurrence and then searched for Bablu, the appellant herein. He speaks of Bablu’s house being locked. According to this witness, there was a dispute over landed property between Bablu and Khokon. He was a witness to the recovery of Bagi, allegedly at the instance of the appellant which was used to slit the victim’s throat. It was found in the Asapasa Pukur (pond). According to this witness, the recovery was made at about 9 p.m. when he saw the appellant being taken towards the village after his arrest. 6. PW 8 is also a witness to the seizure of the Bagi. 7. PW 5, a vegetable vendor claims that he used to sell vegetables at Saspur market and he met Bablu there. According to him, Bablu had a house there. The witness claimed that Bablu revealed to him that he had murdered his brother-in-law and that the police were searching for him. This witness conceded that he had not informed the police about the extra-judicial confession allegedly made by Bablu to him and that he had mentioned this fact for the first time in Court. 8. PW 6 has been declared hostile although he had stated initially that he found the dead body of Khokon lying near the pump machine. 9. PW 7 is the wife of the deceased and the sister of the appellant. She has not spoken of any enmity between her husband and her brother. However, she has stated that Bablu was not found in the village after the death of her husband. 10. PW 9 is the victim’s father. He deposed that Bablu used to threaten his son. She has not spoken of any enmity between her husband and her brother. However, she has stated that Bablu was not found in the village after the death of her husband. 10. PW 9 is the victim’s father. He deposed that Bablu used to threaten his son. Bablu’s father had assured Khokon’s family that he would pay sum of Rs.60,000/-(Rupees Sixty Thousand only) to them but he gave them land instead of money. However, he refused to register the land on the ground that Bablu had threatened to kill both him and Khokon. PW 9 has witnessed the recovery of the Bagi from the Asapasa pond at about 12 mid-night. The witness has conceded in his cross-examination that despite the threats to Khokon no complaint was registered against Bablu. 11. PW 10 is the doctor who conducted the post mortem examination of the deceased. He has stated that he had found three injuries on the neck; one on the front of the neck, another on the right side and the third on the back of the neck. There was another chop-injury on the left shoulder. All these injuries, according to the doctor, were sufficient to cause the death of the victim. 12. PW 11 is the Investigating Officer who started the investigation in this case. He conducted the inquest and drew a sketch map which has been exhibited. This witness claimed that PW 3 informed him that there was an altercation between Khokon and Bablu. The latter threatened Khokon and murdered him. However, that is not the version of PW 3. According to the I.O., he searched the house of Bablu but did not seize anything from that place. He did not care to seize blood stained earth from the place of occurrence. The witness has also conceded that he could not ascertain the registration number of the plot on which the dead body was lying. He has denied the suggestion that the appellant had been falsely implicated with the connivance of Chittaranjan Ghosh, on whose plot Khokon was found killed, due to political reasons. 13. PW 12 took charge of the investigation on 25th June, 2001. He arrested Bablu on 24th September, 2001. He has denied the suggestion that the appellant had been falsely implicated with the connivance of Chittaranjan Ghosh, on whose plot Khokon was found killed, due to political reasons. 13. PW 12 took charge of the investigation on 25th June, 2001. He arrested Bablu on 24th September, 2001. According to the I.O. on the basis of the disclosure statement of the accused he took him near the Asapasa Pukur at Naricha Village where the appellant took out the Bagi used to murder the victim from the Asapasa pond. The Investigating Officer has stated that this seizure was made on 25th September, 2001 at 10.15 p.m. in the presence of the seizure witnesses. He claims that he had affixed the label on the Bagi but it was not found when the Bagi was produced in the Court. However, the witness claimed that it was possible to identify the Bagi. The witness has conceded that the clothes of the deceased were not seized by the First Investigating Officer. 14. The learned Counsel for the appellant has submitted that the Trial Court has erred in concluding that the appellant is guilty of the offence for which he was charged. She submits that the prosecution case against the appellant is mainly based on the so-called enmity between Khokon and Bablu. She pointed out that if there was, in fact, any enmity between the two, it would have been mentioned in the FIR. It has not been mentioned in the inquest report either. She drew our attention to the fact that Khokon’s wife, PW 7 has also not spoken of any antagonism between her husband and her brother. Therefore, according to her, this bogey of enmity has been created by the prosecution only in order to ensure a conviction against the appellant. 15. The case is essentially based on circumstantial evidence where the existence of a motive is one of the crucial factors which aid in deducing that the accused is guilty. Let us now examine whether the circumstances before us complete a chain which points to the unmistakable conclusion of the appellant’s guilt. 16. On perusal of the evidence on record it appears that the father of the deceased PW 9 has spoken of the hostility between the appellant and the deceased. PW 4 has also spoken of disputes between the two over landed property. 16. On perusal of the evidence on record it appears that the father of the deceased PW 9 has spoken of the hostility between the appellant and the deceased. PW 4 has also spoken of disputes between the two over landed property. Surprisingly, however, PW 1 the brother of the victim has not mentioned this in his deposition before the Court, nor in the complaint that he lodged, nor has this fact been recorded as the probable cause of death in the inquest report. PW 7, the victim’s wife has also not stated anything about the alleged differences between the appellant and the victim. Therefore, it is difficult to accept the version of the prosecution that the motive to kill the deceased was the previous enmity or rancour between the assailant and the victim. 17. In the case of Ramreddy Rajesh Khanna Reddy & Another vs. State of Andhra Pradesh reported in (2006) 3 SCC (Cri) 512 the Supreme Court has observed that motive to kill is not sufficient to prove the guilt of the accused. It has reiterated its decision in the case of State of Madhya Pradesh vs. Paltan Mallah reported in (2005) 3 SCC 169 . Though we have found that only the father of the victim has spoken about their being any enmity between the appellant and the victim, neither the victim’s brother nor his wife had mentioned this fact in the statements recorded by the police or in Court. 18. Mrs. Sinha has rightly pointed out that the charge is defective inasmuch as it does not mention the place of occurrence. It only indicates that the appellant committed the alleged murder in a field of village Naricha. It is nobody’s case that there is one field in the village. Therefore, the charge-sheet should have mentioned the exact location of the scene of offence. For the accused to be able to adequately defend himself, he must be made aware of the exact place at which he had allegedly committed the crime or else it would prejudicially affect his defence. The appellant must be informed of the exact time, place and manner in which the crime was allegedly committed by him so that he is able to defend himself effectively. 19. The place of occurrence in the sketch map is shown near the shallow pump. The appellant must be informed of the exact time, place and manner in which the crime was allegedly committed by him so that he is able to defend himself effectively. 19. The place of occurrence in the sketch map is shown near the shallow pump. Witnesses who saw the body have also spoken about it lying near the shallow pump. If the place of occurrence is to be accepted as mentioned by these witnesses and is depicted in the sketch map which is exhibited, it is evident that the body was found lying close to the shallow pump of Chittaranjan Ghosh. The hut in which the victim stayed along with Binode Roy was also in close proximity to the place of occurrence. If the sketch map is to be accepted then it is improbable that Binode Roy did not hear any sound when the victim’s throat was slit. Surprisingly, he did not hear any scuffle or any alarm being raised by Khokon. 20. In the present case, PW 5 has spoken about the appellant disclosed into him that he had killed Khokon. This confession was made in Saspur market about five or six months after the death of Khokon. The extra-judicial confession made to PW 5 has not been corroborated. There is no material to show that the appellant knew PW 5 intimately or that there was any reason for him to divulge such information to this witness. Therefore, it is extremely doubtful as to whether an extra-judicial confession would have been made by the appellant, a vegetable vendor in the market about five or six months before the incident. In any event an extra-judicial confession is a weak piece of evidence and therefore, the testimony of PW 5 does not assist the prosecution. 21. Let us now consider the recovery of the Bagi. The Investigating Officer has claimed that after arresting the appellant on 24th September, 2001 the latter disclosed to him on 25th September, 2001 that he had concealed the Bagi, the weapon used to kill the victim, in the Asapasa pond. According to this witness, the recovery was made pursuant to the statement made by the appellant. However, the record does not disclose any such statement. It was argued by Mrs. According to this witness, the recovery was made pursuant to the statement made by the appellant. However, the record does not disclose any such statement. It was argued by Mrs. Sinha that unless the statement of the accused made while in custody was reduced into writing, the recovery is not admissible under Section 27 of the Indian Evidence Act. She pointed out that even assuming, as suggested by Mr. Gupta, the learned counsel for the State, a recovery could be made pursuant to the oral statement by the accused while in custody there must be a General Diary Entry indicating the purpose for which the appellant was taken out of the police lock-up. Such a General Diary has not been produced in the Court pointed out Mrs. Sinha and, therefore, the recovery is not admissible. The time of the recovery cannot differ from witness to witness. This submission of the learned Counsel deserves to be accepted. Moreover the I.O. has mentioned that the recovery was made on 10.15 p.m. on 25th September, 2001. However, PW 4 has spoken about the I.O. reaching the spot at 9.00 p.m. with the accused. PW 9 has stated that the Bagi was recovered at 12 mid-night on 25th September, 2001. Therefore, the time when the recovery was made is not certain nor does the recovery of the Bagi appear to be genuine. Mr. Gupta then urged that the recovery of the weapon was made due to the specific knowledge of the appellant from an area which was accessible by a few people since, this area was in Chittoranjan Ghosh’s field. No outsiders could have entered the same. The recovery was made from a pond in the field and it was only the accused who knew the Bagi was concealed in the pond. He therefore, urged that the recovery of weapon must be accepted. The Bagi was allegedly recovered from a pond after about six months. The pond could be accessed by several persons including Chittaranjan Ghosh and Binode Roy. Therefore the evidence regarding the recovery is not credible. Mrs. He therefore, urged that the recovery of weapon must be accepted. The Bagi was allegedly recovered from a pond after about six months. The pond could be accessed by several persons including Chittaranjan Ghosh and Binode Roy. Therefore the evidence regarding the recovery is not credible. Mrs. Sinha, has relied on the Judgment in the case of Varun Chaudhary vs. State of Rajasthan reported in (2012) 1 SCC (Cri) 616 where it has been observed that the article recovered from the scene of offence must be shown to the accused during the trial or at the time in his statement is recorded under Section 313 of the Cr.P.C. She rightly pointed out that this was not done in the present case as is evident from the statement of the appellant recorded under Section 313 of the Cr.P.C. Thus the recovery of the Bagi is neither admissible nor genuine. 22. The time of death of the victim has also not been mentioned in the post mortem report. The doctor has not stated the time in his deposition before the Court. Therefore, the victim could have died at any time before 2.00 a.m. on 13th March, 2001. PW 2 was, in fact, the only person with him at that point of time as revealed from the evidence on record. PW 3 and 6, whom Binode Roy informed after he found Khokon dead, have been declared hostile. Thus, besides Binode Roy’s statement with respect to the body being found, there is no other witness speaking of the same. 23. It appears from the Judgment of the Trial Court that the fact that the appellant was absconding for over six months weighed with the Trial Court and this led to the conclusion that the appellant had caused the death of the victim. The evidence on record shows that the appellant stayed in his matrimonial home in Sarista village. There is no indication in the evidence led that the appellant was found in the Naricha village prior to the incident. Not a single witness has deposed to the fact that the appellant was seen in that village before the incident. It is well-settled that the fact that an accused was absconding would be material if in the case of circumstantial evidence the chain of circumstances is completed and points to the guilt of the accused. 24. In the case of Sunil Kundu & Anr. It is well-settled that the fact that an accused was absconding would be material if in the case of circumstantial evidence the chain of circumstances is completed and points to the guilt of the accused. 24. In the case of Sunil Kundu & Anr. vs. State of Jharkhand reported in (2013) 2 SCC (Cri) 427 the Supreme Court has observed that it was well-settled that the fact that the accused was absconding would not by itself prove that he was guilty. The Court has observed that a person could run away due to fear of false implication for arrest. The Court has also opined that no adverse inference can be drawn because the prosecution must prove its case on its own, beyond reasonable doubt. The trial Court has erred in giving importance to the circumstance that the appellant was allegedly absconding without first ascertaining whether the prosecution had proved a complete chain of circumstances leading to the inevitable conclusion that the accused is guilty beyond all reasonable doubt. The fact that the accused was absconding would have been an additional link in the already completed chain of circumstances. 25. Mr. Pawan Kumar Gupta, the learned Counsel for the State has argued that the prosecution had no reason to falsely implicate the appellant. He pointed out that had been the aim of the prosecution the appellant’s name would have figured in the FIR and in the inquest report. 26. We have no manner of doubt that the prosecution, in the present case, has miserably failed to prove the complicity of the appellant. The Trial Court has erred in concluding that the appellant is guilty as charged. This case is based solely on circumstantial evidence which requires the Court to assess the evidence with circumspection. The evidence does not indicate that there is a chain of circumstances pointing to the guilt of the appellant. There are far too many missing links in the chain. Binode Roy was the person who was last seen together with Khokon. He lived in the same hut as the deceased and it is surprising that the needle of suspicion did not turn to him. 27. Accordingly, the appeal is allowed. The appellant is acquitted. He has to be set free immediately if not required for any other case. 28. Binode Roy was the person who was last seen together with Khokon. He lived in the same hut as the deceased and it is surprising that the needle of suspicion did not turn to him. 27. Accordingly, the appeal is allowed. The appellant is acquitted. He has to be set free immediately if not required for any other case. 28. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.