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2015 DIGILAW 3 (CAL)

Gobal Kisku v. State of W. B.

2015-01-06

ASHIM KUMAR ROY, ISHAN CHANDRA DAS

body2015
Judgment Ashim Kumar Roy, J. In a Sessions Trial held before the learned Additional Sessions Judge, Fast Track, 2nd Court, Midnapore, while the appellant Laba Hembram was convicted for the offence punishable under Sections 302/34 IPC and under Section 364 IPC, the appellant Gobal Kisku was convicted for the offence punishable under Section 302/34 IPC. They preferred two separate appeals challenging the order of conviction and sentence. When these appeals are taken up for hearing, the learned Counsel for the appellant, Mr. Nandalal Nayak appearing on behalf of the appellant in connection with CRA No. 609/2004, once again renews his prayer for adjournment on the ground that he needs the service of a Senior lawyer and till this date he could not have been able to arrange for the same. Similar prayer was also made yesterday and having regard to the facts that the appeals are of the year 2004 and the same are running in the list for a considerable period (nearly 1-2 months) and the appellant Laba Hembram is in jail, this court is not inclined to allow his prayer. The prayer for adjournment stands rejected. None however appears on behalf of the appellant Gobal Kisku in CRA No. 572 of 2004. However, the learned Junior Public Prosecutor appears on behalf of the State, in both the appeals and makes his submissions. These cases entirely rests on circumstantial evidence. Thus, the circumstances from which conclusion of guilt is to be drawn must always be beyond all reasonable doubts and the same should be consistent only with the hypothesis of the guilt of the accused that none-else other than the appellants committed the offence and those circumstances must not be compatible with their innocence. The case of the prosecution, as it transpires from the FIR lodged by one Tipu Murmu (PW-6), the brother of the victim Bhutu Murmu that on November 14, 1995 at about 6 a.m., he was informed by the wife of the victim, Moti Murmu (PW-7) that the dead body of her husband was found lying in front of the house of one Ishan Murmu (not examined), in a water body on the Nachna and Rakhalgeria road. Having received such information, the informant, accompanied by other villagers, rushed to the spot and removed the dead body from the water and found marks of injury on his neck and chest. Having received such information, the informant, accompanied by other villagers, rushed to the spot and removed the dead body from the water and found marks of injury on his neck and chest. Thereafter, the informant came to learn from Ram Sai Murmu (PW-2) that on the previous day at about 7 p.m., he saw the victim with the appellant in an intoxicated condition and they were passing through the road. The appellant Laba Hembram had previous animosity with the victim. After conclusion of investigation both of them were charge sheeted for facing trial. While Laba Hembram was charged for the commission of offence punishable under Sections 302/34 and 364 IPC, Gobal Kisku was charged only for the offence punishable under Section 302/34 IPC. Following the aforesaid information, police undertook investigation and both the appellants were charge-sheeted. Subsequently, they were placed on trial before the learned Additional Sessions Judge, Fast Track, Second Court, Midnapore. While both the appellants were charge-sheeted under Sections 302/201/34 IPC but appellant Laba Hembram was charged under Section 364 IPC in addition to the above noted charge. The prosecution, to prove its case during trial, examined 11 witnesses altogether but the defence examined none. From the trend of cross-examination of the witnesses on behalf of the appellants and the answers given by them in their examinations in terms of Section 313 CrPC, it appears that their defence was one of complete innocence. The circumstances relied upon by the prosecution against the appellants are follows:- i) Previous animosity between the victim and the appellant Laba Hembram over the incident of his falling on the person of his wife in an intoxicated condition. ii) On the previous afternoon at about 3 p.m. the appellant Laba Hembram forcibly took away the victim from his house. iii) On the day before the day of discovery of the dead body of the victim at around 5 p.m. the victim and the appellants were found scuffling with each other. The prosecution to prove the previous inimical relations between the appellant Laba Hembram and the deceased Bhutu Murmu examined PW/1, PW/2 and PW/9. However PW/1 in his cross-examination admitted that he did not see any quarrel between them but the evidence of the PW/2 and PW/9 that there was a previous quarrel between them remain unshaken. The prosecution to prove the previous inimical relations between the appellant Laba Hembram and the deceased Bhutu Murmu examined PW/1, PW/2 and PW/9. However PW/1 in his cross-examination admitted that he did not see any quarrel between them but the evidence of the PW/2 and PW/9 that there was a previous quarrel between them remain unshaken. Therefore, if this court finally comes to a conclusion that the appellant Laba Hembram had killed the victim then this previous quarrel can very well be accepted as the motive behind. The key witnesses through whom prosecution attempted to prove the next two circumstances are the PW/7 Moti Murmu the wife of the victim and PW/3 Ramsai Mandi. According to the PW/ 7 on the previous day at about 3 p.m., the appellant Laba Hembram forcibly took away her husband (i.e., the victim) from their house and her husband did not return home on that day and on the next day his dead body was found with marks of injury. Although the said witness claimed to have stated such facts to the investigating officer of the case but the investigating officer PW/11 in his cross-examination contradicted her and stated that no such statement was made to him. This is a vital omission and accordingly the claim of the PW/7 that her husband was forcibly taken away by Laba Hembram on the previous day lost its credibility and it would be just and proper to exclude the same from consideration to decide the question of guilt of the appellant. Furthermore, in her cross-examination she admitted that she used to work as a day labourer and returned home at 5/6 p.m. after the day’s work and on the previous day of the fateful date she also went for her work. If that be so, her evidence that in her presence on the previous day at 3 p.m., at her residence while her husband was forcibly taken away by the appellant Laba Hembram cannot be accepted. Coming to the last circumstance, according to PW/3, on the previous day at around 5 p.m. while he was returning home he found scuffling between the appellant and the victim in an intoxicated condition on the road. Coming to the last circumstance, according to PW/3, on the previous day at around 5 p.m. while he was returning home he found scuffling between the appellant and the victim in an intoxicated condition on the road. This witness claimed to have stated such facts to the police during investigation but PW/11, the investigating officer of the case contradicted him (PW/11) and denied making of any such statement to him by the said witness. This omission undoubtedly shattered the credibility of this witness. Both the second and last circumstances do not stand established. For the reasons stated above, we are of the opinion that the prosecution has not been able to establish the guilt of the appellants towards the commission of the alleged offence. In the result, this appeals succeed and stands allowed. The order of conviction and sentence stands set aside. The appellant Laba Hembram who is in custody, be released at once, if his detention is not wanted in connection with any other case. The appellant Gobal Kisku, who is now on bail, shall also be acquitted at once and be discharged from the bail bond. The office is directed to send down the LCR. Urgent xerox certified copy of this order, if applied for, be given to the parties within a week from the date of making such application. Ishan Chandra Das, J. I agree.