Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 495 (CAL)

Abdul Rahaman v. State of West Bengal

2016-06-21

RAJIV SHARMA, SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. This instant criminal appeal emanates from the judgment and order of conviction dated 07.08.2007 and 09.08.2007 passed by the Additional District and Sessions Judge, Fast Track Court, Khatra, Bankura in Sessions Trial No. 4(4) of 2003. By filing the appeal, the convict appellants has submitted that the learned Trial Court failed to appreciate the evidence on record and failed to consider the circumstantial evidence in its proper perspectives. 2. According to them, from the framing of charge to the order of conviction, learned Court below was all along persuaded himself by emotion and passion and than that of reason. There are various infirmities, omissions, contradictions and discrepancies in the evidence of the prosecution witnesses and in spite of that order of conviction was recorded against them. 3. Learned Counsel appearing on behalf of the state has lent support to the judgment contending inter alia that the case has been established by way of circumstantial evidence, which does not call for any interference. 4. After hearing rival submissions of the parties, we feel it necessary to relook to the factual aspect of the case. On 28.03.1989 the F.I.R. was lodged by one Sk. Mukshed Hossain contending inter alia that the marriage of his niece Manjuara Khatoon took place with a person and on the date of Fulsajya, husband of Manjuara came to realize at that time the victim was pregnant for about five to six months. On being asked, he came to know that Manjuara, while she was a spinster, had some illicit affairs with Sk. Jamiruddin and for which she has become pregnant. A salishi was held in the said village and thereafter the appellant Abdul Rahaman in collusion with Sk. Jamiruddin took the victim to Durgapur and since then there is no trace of the victim. After a considerable period they asked Abdul Rahaman as to whereabouts of the victim but he could not give any satisfactory answer. Ventilating his such grievances, he has lodged the F.I.R. and set the law into motion. 5. On the basis of the F.I.R., investigating agency came to operation. During the course of investigation, the first Investigation Officer (Kartick Chandra Mahuri) received the written F.I.R. and put his endorsement on the written complaint, formal F.I.R. was drawn by him and he also put his signature. 5. On the basis of the F.I.R., investigating agency came to operation. During the course of investigation, the first Investigation Officer (Kartick Chandra Mahuri) received the written F.I.R. and put his endorsement on the written complaint, formal F.I.R. was drawn by him and he also put his signature. On 30.03.1989 he went to Village-Hatadoba in Police Station-Faridpur, and seized some articles from a place as shown by the appellant and on the strength of seizure list, seized some articles. Investigating Officer and the convict appellant Abdul Rahaman also accompanied him. He made contact with O.C. Faridpur for search and seized alamat from that place. He has seized some bones and U/D case was started by Faridpur Police Station. Sri Ardhendu Sekhar Patra, second Investigating Officer, had visited the place of occurrence prepared rough sketch map with index, interrogated Investigating Officers recorded statement under Section 161 Cr.P.C. took the accused to the concerned place of village Hatadoba and recovered some bones and wearing apparels from there. He has recorded the statement and received the FSL report. Investigating Officer has also recorded statement of some witnesses and he had sent the challan which contained once skull, bones and hairs which is said to be of woman. Third Investigating Officer has just submitted the charge-sheet. 6. Pursuant to the said charge-sheet, the learned Trial Court has framed the charges under Section 364/302/201 of the Indian Penal Code against the convict appellants. The said charges were read over and explained to them to which they pleaded not guilty and claimed to be tried. 7. The defence case, as it appears to me from the trend of cross-examination and examination of the convict/appellants under Section 313 of the Criminal Procedure Code is their innocence. 8. Since the witnesses are the eyes and ears of justice so we should listen to them. P.W. 1 is the F.I.R. maker. In his evidence he has stated that marriage of the victim was held with a person of Midnapore District and in the night of Fulsajya, the husband of the victim came to know that Manjuara was pregnant for five to six months and on query he came to know that she became pregnant by the convict appellant Sk. Jamiruddin. A meeting took place in the village and the villagers put pressure upon the Sk. Jamiruddin for a settlement. Jamiruddin. A meeting took place in the village and the villagers put pressure upon the Sk. Jamiruddin for a settlement. In the meantime, one Rijia Khatoon proposed that the villagers of Nargasole were thinking about the problem and to take a decision. But in the meantime, convict appellant Abdul Rahaman and Sk. Jamiruddin made conspiracy with each other and took the victim to Durgapur on 1st March, 1989. Since then there was no trace of Manjuara. After a few days, on query of the villagers, the appellant Abdul Rahaman could not give any reasonable answer. In such circumstances, the F.I.R. was lodged on 28.03.1989. Referring this part, learned Counsel appearing on behalf of the appellant, has submitted that if victim was taken away on 1st March, 1989 what prevented them from lodging the F.I.R. not at its earliest opportunity. According to them, there is no explanation for not lodging the F.I.R. after 27 days. He also contended that a missing diary was not lodged even after a considerable period, which goes to show that there are some embellishments in the F.I.R. itself, only to tag these convicts/ appellants. P.W. 1 deposed in this case. In examination in chief he has supported the prosecution to some extent but there are some improvement in his examination in chief. He categorically that he was present in the salishi along with youngest sister of Sk. Jamiruddin, Sk. Allauddin, Sk. Abdul Lotiff. But none of them deposed in this case to substantiate that a salishi was held at the relevant point of time. In the F.I.R. he never mentioned that the victim was taken to Durgapur for medical treatment and this was stated to him by the appellant Sk. Jamiruddin. After arrest of the appellant, certain articles were recovered namely wearing apparels, hairband, bones and skull, and the police produced the same before him and he identified those articles. In his cross-examination he has mentioned that he had never gone to Manjuara’s in laws house. He could not say the date, year and month of victim’s marriage. Regarding salishi he has stated that salishi took place at the instance of the convict appellant Sk. Abdul Rahaman and at the time of his deposition those articles were not produced before the Court. He could not say the date, year and month of victim’s marriage. Regarding salishi he has stated that salishi took place at the instance of the convict appellant Sk. Abdul Rahaman and at the time of his deposition those articles were not produced before the Court. It is admitted position that the F.I.R. was lodged after a long delay and there is no explanation either in the F.I.R. itself or by any evidence about the reason of delay. 9. P.W. 2, is Sk. Sirajuddin. He has made a new story in his examination in chief that husband of Manjuara told that abortion would be done and thereafter he would lead conjugal life with Manjuara. This was not stated by P.W. 1, nor it was even mentioned in the F.I.R. itself. He has also tried to make an improvement by saying that it was decided that all the medical expenses for the purpose of abortion will be incurred by Sk. Jamiruddin to which Sk. Jamiruddin agreed on 1st March, 1989. Sk. Jamiruddin and Abdul Rahaman (convicts/appellants) took Manjuara to a place and since then she has no trace. He came to know about the departure of Manjuara from Sk. Abdul Rashid, who happens to be his cousin. In course of cross-examination, he has stated that no case was started against Sk. Jamiruddin as it was compromised through village salish. Therefore, if we read his entire evidence, we would find that he has tried to improve the prosecution case by saying something, which is neither mentioned in the F.I.R. nor disclosed by the P.W. 1, P.W. 3. The P.W. 4 told nothing about the incident. P.W. 5 is Sk. Md. Zulkar. In his evidence he has stated that a village salishi was called over the dispute and attended the said salishi. In the said salishi, Sk. Jamiruddin was requested to marry victim but he refused. After a few days he saw the convict appellants with Manjuara at a bus stand. After six to seven days, he found that Manjuara wearing pink coloured saree (golapi). His evidence is also full of embellishment on the ground that neither in the F.I.R. nor in the evidence of P.W.s 1 and 2, that on the basis of resolution of the salishi, the convict appellant Sk. Jamiruddin was asked to marry the victim, and that he saw the victim along with the appellant at the bus stand. His evidence is also full of embellishment on the ground that neither in the F.I.R. nor in the evidence of P.W.s 1 and 2, that on the basis of resolution of the salishi, the convict appellant Sk. Jamiruddin was asked to marry the victim, and that he saw the victim along with the appellant at the bus stand. It has not been corroborated by other witnesses. He also stated in cross-examination that some parts of the resolution of the salishi were reduced to writing. P.W.s 1 and 2 never stated that resolution was reduced to writing, even if at all such resolution was taken, it was the duty of the Investigating Officer to collect or seize the said resolution but that has not been done by the Investigating Officer. P.W. 6 is a hostile witness and her evidence cannot be believed. P.W. 7 is hearsay evidence he came to know from the O.C. concerned that the wearing apparels which was seized by the police was of Manjuara. The P.W. 8 is Abdul Sattar, who stated that he was present in thevillage salish, where the victim disclosed that she became pregnant by Sk. Jamiruddin. He categorically stated that resolution of so called salish was not reduced to writing, whereas P.W. 5 stated about the written resolution. So we cannot place any reliance on the evidence of this P.W. 8. The P.W. 9 is the scribe and he had written the F.I.R. as per dictation of P.W. 1. Regarding salish, he told that he was present in the said salishi and Manjuara disclosed that she became pregnant by Sk. Jamiruddin. He categorically stated Abdul Rasid, Abdul Rahaman, Rabiul Hossain and Abdul Sattar were present. P.W. 10 is Sk. Rabiul Hossain, he did not support the prosecution and for which he was declared hostile by the prosecution. Evidence of P.W. 11, 12, 13 are insignificant on the ground that they weretendered for cross-examination, which were declined by the defence. P.W. 14 is the first Investigating Officer who has conducted the investigation. He has filled up formal F.I.R. and put his endorsement in the written complaint. He has seized alamat i.e. bones and hair and wearing apparels from the place as stated by convict appellant. P.W. 14 is the first Investigating Officer who has conducted the investigation. He has filled up formal F.I.R. and put his endorsement in the written complaint. He has seized alamat i.e. bones and hair and wearing apparels from the place as stated by convict appellant. The said seizure list has been produced before the Court and it appears that the signature of the convict appellant Abdul Rahaman, but there is no statement of the accused that pursuant to his statement the said recovery was done. So called recovery at the instance of the convict appellant does not get support from legal angle. The P.W. 15 is Ardhendu Sekhar Patra who is the second Investigating Officer of this case and he is a witness to the recovery of the wearing apparels. In course of investigation he has seized a medical ticket. The said medical ticket is available in the exhibit list but the learned Court below did not make it exhibited. He also stated that seized hairs were sent to FSL for report. In cross-examination, he stated that they received FSL and did not file any application before the Court below for recording the statement of the convicts/appellants. When seizure list (Exhibit 3) was shown to him, he has stated that it was a green coloured saree which was seized. He candidly submitted that he did not collect the resolution of that so called salishi. P.W. 16 is the last Investigating Officer. He has submitted that U/D case was started by Faridpur Police Station and the said U/D case was forwarded to him for investigation. Accordingly, he has done inquest of skeleton said to be of Manjuara Khatoon, fourteen pieces of bones and skull, some hairs and one pink coloured saree with blood stained etc., and these were sent to learned S.D.M.O Durgapur for report but the said hospital authority returned the same with the opinion that it should be examined by an expert. Thereafter, he had sent those articles with C.D. to Khatra Police Station. The P.W. 17 is Ashok Kumar Mukherjee, he has submitted charge-sheet. In his cross-examination he had admitted that he did not try to collect the post mortem report. 10. Thereafter, he had sent those articles with C.D. to Khatra Police Station. The P.W. 17 is Ashok Kumar Mukherjee, he has submitted charge-sheet. In his cross-examination he had admitted that he did not try to collect the post mortem report. 10. It is trite law that in a case of circumstantial evidence the prosecution is under an obligation to establish all the chain of circumstances in such a way that only conclusion would be that the accused is held responsible for causing the offence. Here we find that enormous omissions, contradictions, improvements and embellishments in the evidence of the prosecution witnesses. There is no explanation as to why the F.I.R. was not lodged since the missing of Manjuara. Post mortem report has not been collected by the Investigating Officer. Since 1st March, 1989, the victim was missing and according to the prosecution witnesses Sk. Jamiruddin (convict appellant) told that he would take her for abortion. In spite of that F.I.R. was lodged long after 27 days from the last journey of the victim. There is no explanation to that effect as to why they waited for a long period. Even there was no missing diary. In a case of last seen together, the last seen and date of death should be within the minimum time and there must be some mitigating circumstances and proximity with each other. Unless and until the same is established by evidence, it would be hard for the prosecution to substantiate the allegation. FSL report is vague. Post mortem report has not been collected, although only bones were available. Leading to the discovery of articles has not been done in accordance with law. 11. In such circumstances, we are of the view that the prosecution could not substantiate the allegation beyond all reasonable doubts and disputes. 12. Therefore, we are of the opinion that the impugned judgment and order of conviction passed by the learned Trial Court be set aside. Accordingly, the convict appellant is hereby acquitted of the charges levelled against them. Accordingly, they are hereby set at liberty at once and also discharged from their respective bail bonds too. 13. Let a copy of this Lower Court Record along with exhibited documents be sent to the learned Court below for his information and taking necessary action in accordance with law. 14. Accordingly, they are hereby set at liberty at once and also discharged from their respective bail bonds too. 13. Let a copy of this Lower Court Record along with exhibited documents be sent to the learned Court below for his information and taking necessary action in accordance with law. 14. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.