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Calcutta High Court · body

2015 DIGILAW 12 (CAL)

Amal Biswas v. State of West Bengal

2015-01-09

ASHIM KUMAR ROY, ISHAN CHANDRA DAS

body2015
Judgment Ashim Kumar Roy, J. In a trial held before the Learned Additional Sessions Judge (newly created) Sadar, Cooch Behar, the convicts, Amal Biswas and Nibaran Mondal were charged under Sections 302/34 and under Section 376(2)(g) IPC for allegedly gang raped, the victim, Mamuda Khatoon and then killed her. In the trial, learned judge found both of them guilty of the charges brought against them and, accordingly, passed an order of conviction. Against their conviction under Section 376(2)(g) IPC, the trial court sentenced both of them to suffer imprisonment for life and to pay fine with default clause. Whereas for their conviction under Sections 302/34 IPC while the appellant, Nibaran Mondal was sentenced to life and to pay fine with default clause, however, the appellant, Amal Biswas was sentenced to death. The Death Reference submitted before this court for confirmation of sentence of death passed against Amal Biswas, his appeal and the appeal preferred by the convict, Nibaran Mondal against their conviction and sentences are taken up for hearing together. This is a case entirely rests on circumstantial evidence. The law on the subject is well settled and during the last few decades the Apex Court by its several authoritative pronouncements has laid down the principle. A close analysis of those decisions we find that the following conditions must be fulfilled before an accused is declared to be guilty of commission of any offence based on circumstantial evidence. The circumstances from which the conclusion of guilt is to be drawn should be fully established and the facts so established should be consistent only with the hypothesis of guilt of the accused and there may not be any little scope to explain those circumstances on any other hypothesis except that the accused is guilty. Circumstances must be of conclusive in nature and tendency and should exclude every possible hypothesis except one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show in all human probability the act must have done by the accused and none else. The circumstances relied upon by the prosecution to establish the charges against the appellants are enumerated below,- i) The victim was residing in the same village, where the house of the aunt of the appellant, Amal Biswas is situated and both the appellants, who are friends, used to visit that place regularly. ii) During such visit the appellants picked up and acquaintance with the victim and whenever they met, they used to gossip in front of the shop of PW/10, Anita Sarkar, the aunt of appellant Amal Biswas. iii) The victim was missing on and from November 4, 2010. iv) On November 7, 2010, the appellants and the victim boarded in the hotel of PW/19, Mithun Jaiswal, took two rooms on rent and left the place in the next morning. v) The Hotel Register, Exhibit-11, seized during investigation contains the name of the appellants and according to the prosecution the name of the victim was changed and she was described as Susmita Mondal. vi) The Hotel owner, P.W. 19, Mithun Jaiswal during the trial identified both the appellants as the persons, who came with the girl in their Hotel and stayed for one night on November 7, 2010 taking two rooms on rent. vii) The hotel owner, PW/19 identified the victim from the photograph of the dead body. viii) On November 10, 2010, in the morning the dead body was found on the southern side of a banana garden, on the bank of river “Torsa”, situated within the village Bansdaha Nodibari. ix) The place where the dead body was found was not far away from the residence of the appellants and the victim. x) The dead body was found by the P.W. 4, Niranjan Sarkar, who in turn informed the P.W. 1, Matilal Mondal and others. xi) According to the P.W. 1, Motilal Mondal the neck of the victim was tied with a handkerchief. xii) At the place of occurrence, the various personal belongings of the victim were found scattered and from inside her bag a piece of paper was recovered where the word “Sushmita Majumdar” was written. xiii) The father of the victim, P.W. 6 subsequently identified the dead body as that of his missing daughter Mamuda and also the articles scattered there as that of her. xiii) The father of the victim, P.W. 6 subsequently identified the dead body as that of his missing daughter Mamuda and also the articles scattered there as that of her. xiv) According to the Autopsy Surgeon, PW/21, she was killed by strangulation and signs of sexual assault was found on her dead body. xv) The appellants absconded for nearly three months after the commission of the crime. xvi) After their arrest and on the basis of their statements and led by them, the police recovered the mobile set of the victim. xvii) From the call details of the mobile phone of the appellant Nibaran Mondal, it was found, before the disappearance of the victim, there were random calls between the said appellant and the victim. This court on January 6, 2015 directed both the death reference and the appeal preferred by Amal Biswas and the appeal preferred by Nibaran Mondal be tagged and listed for hearing together as the same are arising out of the self-same judgment and order. On that day the court directed the office to supply a copy of the paper book to Mr. Palash Chandra Poddar, the learned counsel for the appellant, Nibaran Mondal in CRA No. 393 of 2014. In terms of such order the copy of the paper book was also supplied to Mr. Poddar. However, when this appeal was taken up for hearing, Mr. Poddar expressed his inability to argue the matter because he was not prepared and prayed for an adjournment. This court in its considered opinion finds no valid reason to adjourn the hearing of a death reference and prayer of Mr. Poddar was rejected. However, the learned counsel for the convict Amal Biswas sentenced to death, with Mr. Pravash Bhattacharjee were present in court and participated in the hearing. Mr. Chatterjee, at the very beginning vehemently argued that his client, who is sentenced to death, is absolutely innocent and has been implicated in the case falsely. He vehemently contended that none of the circumstances relied upon against him has not been proved. He submitted, even if it is admitted the appellant in one hand and the victim in other hand were very close to each other and used to gossip whenever met, still none had seen them leaving the village together on the date from which she was missing nor there is any eyewitness to the commission of crime. He submitted, even if it is admitted the appellant in one hand and the victim in other hand were very close to each other and used to gossip whenever met, still none had seen them leaving the village together on the date from which she was missing nor there is any eyewitness to the commission of crime. He further submitted that mere identification of the victim from the photograph of the dead body by the hotel owner had no evidentiary value, when after its recovery the hotel owner was not brought to identify the victim by her dead body itself. There is no evidence that the place of occurrence wherefrom the dead body was recovered, the appellants were found on or about the time of the occurrence. He vehemently contended that during investigation, the investigating officer made no attempt to collect the finger prints from the dead body or from the wearing apparels of the victim. He further submitted, according to the prosecution case that they left the Hotel on November 8, 2010 and dead body was discovered on November 10, 2010 in between that period there was no material to show that the appellant and the victim were together. He further submitted that it would be evident from the hotel register that no lady Mamuda Khatoon by name was lodged in the hotel with the appellants in Kolkata. He submitted that the hotel register was a manufactured document and police made no attempt to find out whether Susmita and Mamuda were the same lady. He lastly submitted in any event this is not a case where the appellants deserves any punishment for to speak of death sentence. On the other hand, the Learned Public Prosecutor at the very beginning submitted this is a case where admittedly there was no eyewitness to the occurrence and the prosecution proved the guilt of the accused on circumstantial evidence. He further submitted that in a case of this nature, the question of examining of any eyewitness to prove the actual commission of crime does not necessary and if the attending circumstances are proved and those circumstances as a whole points to the guilt of the accused, it cannot be claimed as there was no eyewitness, therefore, his guilt is not proved. He further submitted the identification of the victim from the photograph of the dead body is enough and it is preposterous to suggest that the identity of the victim ought to have been proved by the identification of the dead body itself. He then pointed out that according to the evidence of PW/19, the lady who was with the appellants in the hotel was introduced as Sushmita Mondal before the hotel owner and the piece of paper recovered from her bag where it was found that a name “Sushmita” was written and this clearly established that the victim girl Mamuda was with the appellants in the hotel in the guise of Sushmita. He further submitted from the evidence of the witnesses that it was clearly established that the appellants and the victim had the previous acquaintance and the evidence of the hotel owner, PW/19, the identity of the appellants and the victim was proved beyond all reasonable doubt that they together stayed in their hotel on the night of November 7, 2010. He added during the lengthy cross-examination of PW/19, the defence has not been able to discredit him. He then relied on the hotel register Exhibit-11 and submitted that the recovery of the mobile phone of the victim, on being led by the accused persons is a very strong circumstance to show their involvement in the commission of the crime. He also added that the call records were certainly another strong circumstances towards their guilt. So far as the Death Sentence awarded against Amal Biswas, the Learned Public Prosecutor submitted that might be reduced to imprisonment for life. Heard the learned counsel appearing on behalf of the parties and considered their respective submissions. Perused the evidence and other materials on record. The first two circumstances relied upon by the prosecution against the appellants are taken up for consideration together. The PW/6, Kajimuddin Mia, PW/10, Anita Sarkar, PW/11, Islam Haque and PW/13, Sushila Majumdar were examined by the prosecution to prove the circumstances. The PW/6, Kajimuddin Mia although deposed about the visiting of the appellants to their village together and loitering there but he did not state anything about their gossips with his daughter Mamuda. The PW/10, Anita Sarkar was declared hostile as she did not support the prosecution case. The PW/6, Kajimuddin Mia although deposed about the visiting of the appellants to their village together and loitering there but he did not state anything about their gossips with his daughter Mamuda. The PW/10, Anita Sarkar was declared hostile as she did not support the prosecution case. The PW/11, Islam Hoque although claimed in his chief that he found the appellant gossiping with the victim girl in front of the shop of PW/10 and in his cross-examination asserted that such facts were told to the investigating officer of the case but according to the investigating officer of the case PW/23 such fact was not stated to him by the PW/10. Therefore, the evidence of PW/10 on the circumstances under consideration is excluded as there was an omission to mention a vital fact which he deposed in court to the investigating officer of the case. However, the evidence of PW/13, Sushila Majumdar clearly proves the said circumstances and her evidence on this score could not be shaken during her cross-examination. Therefore, those circumstances stand proved. The circumstance the victim was missing from November 4, 2010 as deposed by her father PW/6 has not been challenged from the side of the defence and we have no reason to doubt the same, accordingly the same stands proved. Now, the circumstances no. (iv), (v), (vi) and (vii) are taken up for consideration together. It is claimed by the learned Public Prosecutor that the identity of the appellants as the persons who stayed in the hotel at Calcutta with the victim girl two days before she was found dead has been proved by the evidence of the hotel owner PW/19 and from the hotel register. While the learned counsel for the appellants claimed that the proof of identity of the victim from the photograph of the dead body has no evidentiary value, considering the evidence of the PW/19, the hotel owner, we find that in his cross-examination that he saw the appellants first time in the hotel in the evening of November 7, 2010 when they came there and then for the second time in the court. We further find that this is a case, where admittedly no Test Identification Parade was held after the arrest of the appellants on January 7, 2011 and the appellants, unknown to the witness PW/19, were identified in the dock where they two were alone, during the trial nearly 2 and ½ years after the witness (PW/19) saw them for first and last. The evidence of PW/19 does not enlighten anything which make it possible for him to remember them after such a long period. It is true that the Test Identification Parade is a step in investigation and a corroborative piece of evidence and identification in dock during the trial is substantive evidence, but in a case where the accused persons are not known to the witness and the witness had only one single opportunity to see him. To re-assure that the person brought before the court, was the real person involved in the commission of the crime, the importance of T.I. Parade is essential to reach to a just decision in the trial. Since, there was no T.I. Parade after the arrest of the appellants and when the witness PW/19 in his statement before the police has not disclosed any identification marks, the stature of the accused persons whether fat or thin, fair or black, whom he saw when they came to his hotel and there was no other evidence to show that they were the persons who on that particular day accompanied the victim girl in the hotel, in our opinion it would not be proper to rely on the evidence of such witness on the question that they were the persons who accompanied a lady subsequently killed on mere identification of the appellants for the first time in the dock, 2 and ½ years after. In this regard reliance may be placed in the case of Jaspal Singh vs. State of Punjab reported in 1997 SCC (Cri) 358; Ahmed Bin Salam vs. State of Andhra Pradesh reported in 1999 SCC (Cri) 493; C.K. Raveendran vs. State of Kerala reported in 2000 SCC (Cri) 108. In this regard reliance may be placed in the case of Jaspal Singh vs. State of Punjab reported in 1997 SCC (Cri) 358; Ahmed Bin Salam vs. State of Andhra Pradesh reported in 1999 SCC (Cri) 493; C.K. Raveendran vs. State of Kerala reported in 2000 SCC (Cri) 108. In the case of Rameswar Singh vs. State of Jammu and Kashmir, reported in 1971 SCC (Cri) 638, a three-Judges Bench of the Hon’ble Supreme Court at paragraph 6 observed the importance of Test Identification Parade where the accused persons are unknown to the witness and the same is quoted below, Para 6: Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former’s arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in Court. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in Court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness. In this regard it further be noted a few pages of the hotel register which was exhibited during the trial and was marked Exhibit-11. The same was not the original one and mere the Xerox copy. It appears from the said documents there was a column meant for the signature of the person concerned but during the investigation no attempt was made by the police to seize the original hotel register or to send the same for verification of the handwriting to the expert. During the examination of the appellant under section 313 Cr.P.C., no question was put to them with reference to the said hotel register Exhibit- 11. Coming to the question of the identification of the victim girl by the hotel owner PW/19, we find during the trial when the material Exhibit-6, the photograph of the dead body of the victim was shown to him, the witness stated “I cannot say 100% that, the lady and the lady of the picture is the same person.” No question was also put to the appellants during their examination under section 313 Cr.P.C. on the question of identification of the victim lady by the photograph of the dead body by the PW/19. A three-Judges Bench of the Apex Court in the case of Sarad Bridhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 categorically held, ‘any circumstance in respect of which an accused was not examined under section 313 Cr.P.C., the same cannot be used against him and that fact ought to be excluded from consideration.’ Similar is the position so far as the circumstance of identification of the appellants on the dock and the identification of the victim by the photograph of her dead body by the hotel owner PW/19, Mithun Jaiswal. Those circumstances were never put to the appellants in their examination under section 313 Cr.P.C. and accordingly ought to be excluded from consideration. So far as the circumstances no. (viii), (ix), (x), (xi), (xii) and (xiii) are concerned, even if the same are not disputed, those circumstances do not assume much importance unless other circumstances are established. These are the circumstances which would certainly lend supports when remaining circumstances stand established. The factum of seizure of a piece of paper from the hand bag of victim lady containing a writing ‘Sushmita Majumdar’ is concerned such fact was also not brought to the notice of the appellants during their examination under section 313 Cr.P.C. and ought to be excluded from consideration. Furthermore, in respect of the said document no opinion from any handwriting expert was obtained to ascertain who was the author of the same. The evidence of the Autopsy Surgeon that death was due to the ante-mortem injuries in the dead body and homicidal in nature is found to be established. The circumstance of abscondance is a very weak piece of evidence and can only be acted upon as an additional link when a court on the strength of other materials reaches to a conclusion as to the guilt of the accused. This circumstance of abscondance was also not put to the appellants during their examination under section 313 Cr.P.C. and therefore ought to be excluded from consideration. The last circumstance, of course, is a very vital circumstance that is the recovery of the mobile phone belonging to the victim Mamuda pursuant to the statements made by the appellants to the investigating officer of the case PW/24 and led by them. The said mobile was seized vide seizure list Exhibit-5. However, both the seizure witnesses, PW/9 and PW/15 were declared hostile as they did not support the factum of such seizure. The seizure list also does not contain the time of the seizure. We further find according to the PW/20 Sahidul Alam the said mobile phone was belonging to him and he sold the same to the victim girl against valuable consideration vide the sale receipt Ext.-12. On perusal of Ext.-12, it is evident that seller was one Sahidul Islam and not Sahidul Alam and the seller also signed as Sahidul Islam. Prosecution has not brought any evidence to show that Sahidul Islam and Sahidul Alam are same person. On perusal of Ext.-12, it is evident that seller was one Sahidul Islam and not Sahidul Alam and the seller also signed as Sahidul Islam. Prosecution has not brought any evidence to show that Sahidul Islam and Sahidul Alam are same person. We further find the said sale transaction was executed and receipt was issued, in presence of one Tirendra Nath Roy, Son of Fanindra Nath Roy, Village-Dhanilapur, P.S.-Phalakata and he also scribed his signature as witness. This Tirendra Nath Roy was examined as PW/7 during the trial. According to the said witness he accompanied PW/6 Kajimuddin Mia to the police station, where they were shown a mobile phone and said Kajimuddin Mia, PW/6 produced some papers and the police seized those papers vide the seizure list Ext.-4. Now, on the perusal of the seizure list Ext.-4, it is found that vide Ext.-4, the police seized the Ext.-12. However, the PW/7 in his deposition nowhere testified that the mobile in question was sold by the PW/20 Sahidul Alam to the victim girl and such sale took place in his presence and he was an witness to the transaction of sale as noted in Ext.-12. We further find another witness to the seizure of the sale receipt (Ext.-12), against Ext.-4 is one Chabibar Rahaman, who was examined during the trial as PW/8 and in his deposition the said witness claimed that the said sale receipt Ext.-12 relating to the mobile phone in question was produced by him to the police and the police seized the same and also identified his signature in the seizure list, Ext.-4/1. It is noteworthy, both the PW/6 and the PW/8 claimed to have given the said receipt to the police, thus who had given the said receipt to the police patently contradictory. The PW/7 and the PW/8 both signed in the seizure list (Ext.-4) as seizure witness but none of them mentioned about the presence of the other. It appears from the deposition of PW/8 Chabibar Rahaman that he is a neighbour of the PW/6 Kajimuddin Mia, the father of the victim girl. No explanation is forthcoming from the side of the prosecution, as to how the said sale receipt, Ext.-12, was in the possession of PW/8 and produced by him. It appears from the deposition of PW/8 Chabibar Rahaman that he is a neighbour of the PW/6 Kajimuddin Mia, the father of the victim girl. No explanation is forthcoming from the side of the prosecution, as to how the said sale receipt, Ext.-12, was in the possession of PW/8 and produced by him. On those infirmities, we are of the opinion that the prosecution has not able to establish Ext.-5, the seizure of the mobile phone and the same was belonging to the victim, which she purchased from the PW/20 Sahidul Alam as also the factum of seizure in the manner as claimed by the prosecution. We further find according to the prosecution case the victim was lying dead on the field, with a handkerchief tied around her neck and her personal belongings were found scattered at the spot. However, no attempt was made by the investigating officer of the case, in a case of this nature, to obtain the chance fingerprints and footprints from the spot and the object, so as to match the same with that of the suspects. This is fatal for the prosecution case. So far as the call details are concerned, we find that same was never exhibited and only marked for identification, therefore, question of putting any reliance on the same does not arise at all. Having regard to above, we conclude the circumstances relied upon by the prosecution against the appellants have not been established beyond any shadow of doubt. Those circumstances are not of such a nature that it can safely be held that same are consistent only with the hypothesis of the guilt of the appellants and not consistent with their innocence and the offence has been committed by the appellants and none else. In the result, we are unable to sustain the order of conviction and sentence. The order of conviction and sentence are set aside. Both the appeals stand allowed and the Death Reference is rejected. The appellant Amal Biswas and Nibaran Mondal both at once be released from the custody, if not they are detained in connection with any other case. Office is directed to send down the LCR to the court below. Urgent xerox certified copy of this order be given to parties, if applied for, as early as possible. Ishan Chandra Das, J. I agree.