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2014 DIGILAW 237 (CAL)

Rajjak Mian alias Ali v. State of West Bengal

2014-03-19

SHIB SADHAN SADHU, SUBHRO KAMAL MUKHERJEE

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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 17.01.2002/18.01.2002 passed by the Learned Additional District & Sessions Judge, 2nd Court, Balurghat, Dakshin Dinajpur in S.T. Case No.27 of 2001 (S.C. No.127 of 2001) convicting him under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default to undergo rigorous imprisonment for one month for the offence Under Section 302 IPC. 2) Put in a short frame, the prosecution case runs as under:- On 18.06.1994 in the noon hours, the de-facto complainant Shyamal Das of Harirampur came to learn from the people of the locality that a dead body of a person was lying in Choto Jagua Pukur in throat slit condition. He then went to that pond and saw that a young man aged about 25/26 years was lying dead inside the water of the pond in throat slit condition. It appeared to him that the incident took place in the preceding night. He, accordingly, lodged a written complaint before the Officer-in-Charge, Harirampur Police Station on the basis of which Harirampore P.S. Case No. 45 of 1994 dated 18.06.1994 u/s 302/201 I.P.C. was registered. That case was investigated into and on completion of investigation; charge sheet was submitted u/s 302/201/392 IPC against the present appellant and other two absconding accused against whom the case was filed for the present. Thereafter, the case was placed for trial before the Ld. Addl. Sessions Judge, 2nd Court, Balurghat, Dakshin Dinajpur who framed charge u/s 302 IPC against the present appellant and after conclusion of the trial, she held the appellant guilty and convicted him as aforesaid. 3) Prosecution examined in all 13 witnesses in its support. Thereafter, the case was placed for trial before the Ld. Addl. Sessions Judge, 2nd Court, Balurghat, Dakshin Dinajpur who framed charge u/s 302 IPC against the present appellant and after conclusion of the trial, she held the appellant guilty and convicted him as aforesaid. 3) Prosecution examined in all 13 witnesses in its support. Out of those witnesses, Prosecution Witness No.1, Shyamal Das is the de-facto complainant, P.W.2 Mahiruddin Sarkar and P.W.8 Sayed Waresh Ali are the witnesses to the inquest, P.W.3 Mahatab Uddin Sarkar, P.W.5 Mokbul Hossain and P.W.9 Mortuja Rahaman Chowdhury are the seizure witnesses, P.W.4 Ferdousi Bewa is the wife of the deceased Mokshed Ali, P.W.6 Ainuddin is the brother-in-law of the deceased, P.W.7 Moyzuddin Mian is the maternal-uncle of the deceased, P.W.10 Sharab Ali is a resident of East Bishnupur, P.W.11 is the police constable No.853 Bhabendranath Karmakar who carried the dead body of the deceased from the P.O. to Raiganj Hospital for post mortem examination, P.W.12 S.I. of Police Narendranath Bagchhi is the Investigating Officer of this case and P.W.13 is S.I. of Police Asit Kumar Kundu, who submitted the charge sheet. 4) We have heard Mr. P.S.Bhattacharyya, learned Counsel appearing on behalf of the appellant while the respondent State has been represented by the learned Public Prosecutor, Mr. Manjit Singh. We have perused the records and proceedings. We have, also, meticulously scrutinized the evidence – both oral and documentary, broughton record by the prosecution. 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. 5) In a plethora of decisions, the Supreme Court of India 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 Supreme Court of India 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. 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. 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.” 6) There can be no dispute that the deceased Mokshed Ali had died a homicidal death. The question is whether the prosecution has been able to connect the present appellant with the alleged crime? 7) Let us now assess the evidence on record in the perspective of the aforesaid guidelines of the Supreme Court of India. The question is whether the prosecution has been able to connect the present appellant with the alleged crime? 7) Let us now assess the evidence on record in the perspective of the aforesaid guidelines of the Supreme Court of India. 8) 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 recovery of the offending weapon. This being the position, we think it better and profitable to have a look into the relevant provisions of the Law of Evidence. 9) 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.” 10) 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.” 11) P.W.4 and P.W.10 although claimed that they had been to the house of the accused after 3 days to search for the deceased and the accused confessed that he had murdered the deceased Mokshed by slitting his throat. But, we find that P.W.12 S.I. N.N.Bagchi (I.O.) being confronted with the statements of P.W.4 and P.W.10 disclosed that those two witnesses did not narrate such incident to him. Hence, these are material omissions and therefore, no reliance can be placed on the evidence of P.W.4 and P.W.10. That apart, had it been a fact, that the accused had made the extrajudicial confession to P.W.4 and P.W.10 they would have disclosed it to others and must have lodged a first information report immediately thereafter. This is not consistent with the ordinary human conduct. As such the alleged extra-judicial confession is unreliable and cannot be taken into account at all. This is not consistent with the ordinary human conduct. As such the alleged extra-judicial confession is unreliable and cannot be taken into account at all. 12) Let us now dwell upon the most trumpeted and heavily banked upon clinching circumstance e.g. recovery of the offending weapon 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 date or signature of the I.O. or the accused in such statement. The I.O. P.W.12 admitted such facts during his cross-examination. Not only that he made the situation more worse by disowning the authorship of Ext.10 by stating that the statement is not recorded by him and most specifically he stated that Ext.10 was not written by him. He also did not utter the exact words used by the appellant. Therefore, the story of recovery becomes inconsequential and a meaningless exercise. 13) Examining the evidence on record regarding the alleged discovery we find that P.W.9 stated that the accused was taken from Harirampur P.S. to near Jogua Pukur accompanied by a police officer and the accused handed over a razor (Khur) handle of which was of white colour and the razor was rusted, to the police near Jogua Pukur. In cross-examination, he failed to say whether that type of razor was available in open market. He further admitted that there was no mark of identification of that razor. From the relevant seizure list (Ext.8) it appears that the razor was seized at Chota Jogua Pond as shown by the accused. From the alleged disclosure statement (Ext.10) it appears that the razor was left beside the Matipukur. P.W.12 stated that the razor was recovered from the pond. Therefore, it is not clear as to from which exact place the razor was recovered specially when there is no iota of evidence on record to show that Jogua Pukur and Matipukur are the same and identical places. It is equally mysterious how P.W.10 could identify the said alleged weapon of offence e.g. the razor when it bore no mark of identification. Further P.W.12 stated that on 19.06.1994 he again visited the P.O. and searched the surrounding area. So it remains a wonder as to how he could not find out the razor on the date of his second visit to P.O. on 19.06.1994. Further P.W.12 stated that on 19.06.1994 he again visited the P.O. and searched the surrounding area. So it remains a wonder as to how he could not find out the razor on the date of his second visit to P.O. on 19.06.1994. Be that as it may, want of explanation as to why the seized razor was not sealed and labelled and why it was not sent for FSL examination to ascertain whether it contained any human blood stain 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 type of farcical discovery. 14) In the facts and circumstance of this case, the recording of confessional statement from the appellant and the recovery of the offending weapon based on his information appears to be a fairy tale and when especially the credibility of the independent witnesses are doubted, the Section 27 of the Indian Evidence Act recoveries pressed into service is required to be brushed aside. 15) 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. 16) 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. The appellant Rajjak Mian (Ali) is in jail and he shall be released and be set at liberty forthwith unless wanted in any other case. 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 (Shib Sadhan Sadhu, J.) I agree.