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2014 DIGILAW 979 (CAL)

Prafulla Chandra Das v. State of West Bengal

2014-10-29

ASHIM KUMAR ROY

body2014
JUDGMENT : Ashim Kumar Roy, J. This Criminal Appeal arises out of a judgment and order passed by learned Sessions Judge Raiganj, Uttar Dinajpur convicting the sole appellant Prafulla Das under Section 302/201 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life. The appeal was heard by a Division Bench of this Court and Learned Judges were divided in their opinion as to the conclusion of guilt of the appellant and accordingly the appeal is now placed before this bench for its decision on that score. 2. The prosecution case in short is as follows:- On July 31, 1995 at around 00.15 hrs. the appellant came to the Raigang Police Station and reported that on the previous day i.e. on July 30, 1995 at 1.30 pm, the appellant who was in the service of PWD Department, Government of West Bengal went to his office and his duty hours was from 2 pm to 10 pm. His family comprised of his 3 sons, 2 daughters and his wife. At around 10.30 pm on that day after office hours, when he returned home, his sons and daughters reported that his wife Rekha Rani Das on Saturday i.e., on July 29, 1995 at about 4 pm went to the field for grazing cows and since then she has not returned home and his sons and daughters searched for her but she could not be traced out. On the same night the appellant along with the other members of his family searched in the village for his wife but she could not be traced out. Thereafter his father-in-law and brother-in-law was informed about her missing, who came and joined for searching. After continuous searching the dead body was found floating in a nearby tank. The police came and recovered the dead body and found she appeared to have been killed. 3. Following the lodging of the aforesaid complaint, a FIR under Section 302/201 I.P.C was registered against unknown person. During investigation police found that the appellant is the author of the crime and he was charge sheeted under Section 302/201 I.P.C and placed on trial. 4. The case against the appellant entirely based on circumstantial evidence. In a case rests on circumstantial evidence the prosecution ought to have proved each and every piece of circumstance against the accused beyond all reasonable doubts. 4. The case against the appellant entirely based on circumstantial evidence. In a case rests on circumstantial evidence the prosecution ought to have proved each and every piece of circumstance against the accused beyond all reasonable doubts. The circumstances so relied must be consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis and each and every link in the chain of circumstances must be completed. 5. To prove its case prosecution relied on the following circumstances and examined 19 witnesses. "(i) Admittedly, the victim Rekha Rani Das was the wife of the accused person and she was found missing on 29.7.1995 from afternoon. (ii) On 30/31.7.95 night the victim's behead dead body was found and recovered from the tank (DOBA) near a brickfield and thereafter the appellant lodged the FIR. (iii) According to the postmortem Doctor, PW/14, Dr. Rashbehari Ghosh that victim suffered a homicidal death and she was killed by beheading. (iv) On Saturday, 29.7.95, at about 2/2.30 p.m the victim was found alive for the last time by the PW/11 Nayan Chand Murmu, at the paddy field of the appellant situated at Madhupur. (v) At that time, when she was found by the PW/11 both the appellant and the victim were working in the paddy field. (vi) Subsequently, her beheaded body and cut head were recovered from a pond situated nearby the paddy field. (vii) As per written complaint (Ext.12), the FIR of the case, the appellant tried to hide the date and time of his knowledge about the missing of the victim, his wife. (viii) According to the duty roster admittedly, the appellant was on rest on 29.7.95 i.e. the date of incident. (ix) The accused person did not disclose his presence in the house or where he was on the fateful day, at the relevant time. (x) A Sharp cutting iron spade (Kodal) (Mat. Ext.1) was recovered from the house of the appellant at his instance in presence of the witnesses. (xi) The postmortem Doctor PW/14, in his reply to a suggestion, opined that such decapitation of head is possible with the help of the spade (Mat. Ext.1). (xii) The appellant in the FIR narrated a story to mislead the police. (xiii) Lodging of FIR by the appellant has not been disputed by the defence. 6. (xi) The postmortem Doctor PW/14, in his reply to a suggestion, opined that such decapitation of head is possible with the help of the spade (Mat. Ext.1). (xii) The appellant in the FIR narrated a story to mislead the police. (xiii) Lodging of FIR by the appellant has not been disputed by the defence. 6. So far as the first three circumstances are concerned, there is no dispute that the victim is the wife of the appellant and her beheaded dead body was recovered at night between 30/31 July, 1995 from a tank adjacent to a paddy field and after that the appellant lodged the FIR to the police and the story narrated there stands contradicted with other evidence and according to the post mortem doctor she suffered homicidal death and was killed. The post mortem doctor while deposing in court, his attention was drawn to the alleged offending article, spade which was recovered at the behest of the appellant and according to him, the said spade might have been used to behead her. 7. Against the appellant, the next circumstance is, giving a false story while he lodged the FIR, at 00.15 hrs. on July 31, 1995. In the FIR, it was reported on July 30, 1995, Sunday, at around 1.30 p.m., he went to his office and was on duty from 2 p.m. to 10 p.m. and after coming back home, he was informed by his sons and daughters that his wife was missing from 4 p.m. since last Saturday, July 29, 1995 from afternoon. Thereafter, he searched for his wife with his sons and daughters but she could not be traced out and thereafter they again started searching after his brother-in-law came there and discovered the beheaded dead body of his wife floating in a pond. However, according to the evidence of PW/1 the son of the appellant, PW/3 and PW/4 his daughters that on Saturday, July 29, 1995, their mother went to field, since she was not returned till 7 p.m. in the evening, they went to search for their mother but could not able to find her out. At that time, their father, the appellant was sleeping in the house. On the next day, his maternal uncle and other came and on further searched, her dead body was discovered floating in a tank near the Madhupur paddy field. At that time, their father, the appellant was sleeping in the house. On the next day, his maternal uncle and other came and on further searched, her dead body was discovered floating in a tank near the Madhupur paddy field. Therefore, the story given by the appellant to the police appears to be false. Furthermore, during the trial prosecution has established by examining PW/19 Sub-Assistant Engineer, PWD, that the appellant was a Group-D employee and on July 29, 1995, he was on rest and on July 30, 1995, he was on duty. The attendant register was marked as exhibit-9. This circumstance of misleading the investigating agency is a very strong circumstance goes against the appellant. The evidence of the sons and daughters of the appellant that on July 29, 1995, their mother did not return home till 7 p.m. and they went on searching for her, the appellant was sleeping in the house. From the evidence of those witnesses, it is established that the facts of her mother missing from Saturday, July 29, 1995 was known to them and the appellant but on the next day, at about 1.30 p.m., he went to his office and after returning home at 10.30 p.m., joined in searching of his missing wife. The claim of the appellant that he came to learn from his sons and daughters on July 30, 1995, Sunday, about the missing of his wife after returned home around 10.30 p.m., on the face of the evidence of his sons and daughters is not at all acceptable. 8. Furthermore, from the evidence of PW/16, Sub-Inspector of Police attached to the Raigange Police Station the dead by was discovered on July 30, 1995 at about 20.15 hrs. which goes to show the dead body was discovered before the appellant returned home at 10.30 p.m. after his day's duty. 9. The next circumstance against the appellant is this that the victim was seen by the PW/11 at his paddy field at Madhupur with the appellant and thereafter she never returned home. This witness was cross-examined at length but nothing could have been brought out to impeach his credit. Therefore, the victim was last seen alive in the company of the appellant. This witness was cross-examined at length but nothing could have been brought out to impeach his credit. Therefore, the victim was last seen alive in the company of the appellant. The circumstances of 'last seen together' is a very clinching circumstance against an accused when prosecution able to prove that victim was found alive for the last time in the company of the accused and thereafter found dead and when no explanation was forthcoming from the side of the accused as to how the victim suffered a homicidal death. Much has been argued from the side of the appellant to shatter this circumstance of 'last seen together'. The learned Counsel of the appellant invited the attention of this Court to the evidence of PW/1, Rinku Das, son of victim/appellant, according to whom, his mother left home and went towards the field at around 3/4 pm as also to the evidence of PW/3, Chandana Das according to her, her mother went to the field with the cow at the late afternoon. It is then vehemently argued that the evidence of PW/1 and PW/3 completely demolished the evidence of PW/11 that he found both the appellant and deceased by 2.30 p.m. in the paddy field together. It is already noted during the cross-examination of PW/11, nothing could have been brought out by the defence to raise any doubt as to his truthfulness. On the other hand, the evidence of PW/11, PW/1 and PW/3 as to the exact time, when the victim was found with the appellant at the field and when she left home for the field, are minor contradictions in their evidence and assumed no importance. It is not expected from a witness to remember with all precessions the exact time when a particular event happens, more particularly for a rustic person and the children. It cannot also be ignored that those witnesses were deposing in Court 6 years after the alleged incident and on the fateful day as usual their mother left for grazing cow and thus there was no valid reason for them to note down the exact time because it was beyond their anticipation that thereafter their mother will never return alive. Therefore, these contradictions as to the time can very safely be ignored. Therefore, these contradictions as to the time can very safely be ignored. This court is of the opinion that the prosecution has been able to establish that the victim was, for the last time, found alive in the company of the appellant. Since appellant has not come out with any explanations as to how she was killed thereafter, these circumstances clearly goes against the appellant, pointing his guilt towards the commission of crime. 10. The only other circumstance against the appellant is the recovery of the offending weapon, a sharp cutting spade from his house on being led by him. So far as recovery is concerned, during the cross-examination of the witnesses to such recovery, the defence has not been able to impeach their credit. Furthermore, when the post mortem doctor PW/14 was examined in court, the said offending weapon was shown to him and the witness unhesitatingly admitted that the victim might have been killed by the said spade. This circumstance also goes against the appellant and points towards his guilt. 11. The following are the circumstances which have been proved against the appellant by the prosecution against all reasonable doubt, (a) The beheaded dead body of the victim was recovered from a tank near to the paddy field of the appellant. (b) According to the post mortem doctor, victim suffered a homicidal death and was killed. (c) Following the recovery of the dead body, the appellant lodged the FIR and gave out a false story to mislead the investigation. (d) In the FIR it is claimed by the appellant, he came to learn about the missing of his wife from his sons and daughters, when he returned home after his day's duty at 10.30 p.m., Sunday, on July 30, 1995, and he went to join his duty on that day around 1.30 p.m. Whereas according to his sons and daughters, since their mother did not return home on Saturday, July 29, 1995 till 7 p.m., they started searching for their mother and at that time their father, the appellant herein, was in the house and was sleeping. Therefore, it cannot be accepted that the appellant was not aware about the missing of his wife until July 30, 1995 till he returned from his office. Therefore, it cannot be accepted that the appellant was not aware about the missing of his wife until July 30, 1995 till he returned from his office. (e) The appellant not only was sleeping when his sons and daughters were searching for their mother, who did not return home from field till 7 p.m. but he did not take part in searching although was at home till 1.30 p.m. on the next day when he went to his office and claimed to have learnt about her missing on that day after he returned from his duty at 10.30 p.m. (f) Soon before her missing on Saturday, July 29, 1995, the victim was found alive for the last time in the company of the appellant, working in their paddy field and such fact has been proved beyond all reasonable doubt by the PW/11. (g) The dead body was recovered from a tank closed to that paddy field where the victim was last found alive in the company of the appellant. (h) The offending weapon, a sharp cutting spade was recovered from the house of the appellant at his behest. (i) The post mortem doctor deposed that the said spade might have been used to kill her. (j) Although it is claimed in the FIR by the appellant that the dead body was recovered after he came home from duty, on July 30, 1995, after 10.30 p.m. but admittedly dead body was recovered around 8.30 p.m. much before that time from a pond. (k) Saturday, July 29, 1995 was the rest day of the appellant and on the next day on July 30, 1995, he was very much in his office. Now, the cumulative effect of all the circumstances as aforesaid clearly points out the guilt of the appellant and undoubtedly prosecution has been able to prove, it is none else but the appellant is the person who killed his wife. Therefore, this court is of the opinion that the appellant is very rightly convicted under section 302/201, IPC and sentenced to suffer imprisonment for life is fully justified. The appeal stands dismissed and consequently, the bail of the appellant stands cancelled and the appellant is directed to surrender in the court within a week from this day. 12. The learned trial Judge is directed, if not the appellant surrenders, the steps must be taken to take him into custody. 13. The appeal stands dismissed and consequently, the bail of the appellant stands cancelled and the appellant is directed to surrender in the court within a week from this day. 12. The learned trial Judge is directed, if not the appellant surrenders, the steps must be taken to take him into custody. 13. The records of the case now be placed before the Hon'ble Chief Justice. 14. Photostat certified copy of this judgment, if applied for, be given to the parties at an early date. 15. Let the LCR be sent down.