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2016 DIGILAW 689 (CAL)

Basudeb Nandi @ Sabu v. State of West Bengal

2016-09-01

ANIRUDDHA BOSE, SANKAR ACHARYYA

body2016
JUDGMENT : Sankar Acharyya, J. 1. The appellant was tried by Additional Sessions Judge, 2nd Court, Suri, Birbhum in Sessions Trial No. 5 of February, 2011 under Sections 302 and 201 of the Indian Penal Code (in short I.P.C.) for the murder and disappearance of evidence of murder of Sadeswari @ Sadheswari Das on 30th October, 2008 at village – Amarpur Hazrapara. He was convicted and sentenced of both the charges under Section 302/201, I.P.C. He was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- and in default of payment of fine to suffer further rigorous imprisonment for six months for committing the offence under Section 302, I.P.C. He was also sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.2000/- and to default of payment of fine to suffer rigorous imprisonment for two months for committing the offence under Section 201 of the I.P.C. As per the judgment of conviction and sentence (hereinafter called as impugned judgment) both the sentence will run concurrently. 2. The case which was tried in the trial Court was initiated at Parui police station (in short P.S.) receiving written information lodged by Jashomati Das (PW 1). First Information Report (in short FIR) was drawn at P.S. starting a case against unknown accused on 30.10.2008 under Sections 302/201, I.P.C. Police investigated the case. During investigation firstly police arrested the appellant’s son Prashanta as accused of the crime and on his production in court he remained in judicial custody. Since charge sheet could not be submitted against him by the investigating police officer (in short I.O.) within statutory period he was enlarged on bail. On prayer of I.O. warrant of arrest was issued against the appellant. Subsequently, he surrendered in Court. After remaining in judicial custody for considerable period he was released on bail. Again, he was taken into custody by the trial court finding him guilty of the charges on 21.03.2011 in the impugned judgment. Since that date he is in judicial custody. 3. In the written information in Bengali language the PW 1 complained that her daughter Sadheswari Das (Bayen) wife of Late Sukumar Das used to work in the house of the appellant since after death of her husband and the appellant used to come to the residence of Sadheswari. Since that date he is in judicial custody. 3. In the written information in Bengali language the PW 1 complained that her daughter Sadheswari Das (Bayen) wife of Late Sukumar Das used to work in the house of the appellant since after death of her husband and the appellant used to come to the residence of Sadheswari. Due to unlawful relation between them unpeaceful situation cropped up in the house of appellant a few days before the date of occurrence. Since then the appellant would not come to the residence of Sadheswari. Since before 10/15 days of the date of occurrence Bhola Thakur (PW 6) of village Paharpur had visiting terms in the residence of Sadheswari. Under such circumstances, in the dawn of 30.10.2008 deadbody of Sadheswari was found floating in a pond named ‘Paler Pukur’ as she was murdered and her dead body was thrown into the pond. 4. Sub-inspector Fazle Bin Ahmed (PW 12) as officer-in-charge of Parui P.S. received the written information (exhibit-2) and had drawn formal FIR (exhibit-7). He took up the charge of investigation of the case on the basis of exhibit-2, lodged by PW 1 on 30.10.2008 at 9:45 hrs. PW 12 visited the place of occurrence and prepared rough sketch map with index (exhibit-8). PW 12 found the dead body of Sadheswari (hereinafter called as victim) was floating in a pond and at his instance the dead body was lifted. PW 12 held inquest over that dead body and prepared inquest report (exhibit-1). He despatched the dead body to Suri Sadar Hospital for post mortem examination through constable Nishith Kundu (PW 9) issuing dead body challan (exhibit-4). PW 12 seized blood stained earth and control earth from the bank of the pond under a seizure list (exhibit-5). He examined witnesses and recorded their statements under Section 161, Code of Criminal Procedure (in short Cr.P.C.). He held raid for arresting the appellant but could not arrest him and he made prayer in court for issuing warrant of arrest against the appellant. He seized wearing apparels of the victim under a seizure list (exhibit- 6). Due to his transfer from Parui P.S. he could not complete the investigation. Thereafter sub-inspector Madhab Kumar Mandal (PW 13) took up the charge of investigation of the case on 25.02.2009. He held raid to arrest the appellant but could not succeed. He collected post mortem report (exhibit-3). Due to his transfer from Parui P.S. he could not complete the investigation. Thereafter sub-inspector Madhab Kumar Mandal (PW 13) took up the charge of investigation of the case on 25.02.2009. He held raid to arrest the appellant but could not succeed. He collected post mortem report (exhibit-3). He also could not conclude the investigation due to his transfer. Thereafter sub-inspector Biswajit Chowdhury (PW 10) simply submitted charge-sheet against the appellant only. 5. As per materials collected by PW 12, it appears from exhibit-8, exhibit-1 and exhibit-5 that the victim was murdered on the bank of a pond of village which is an open place where the villagers have free access round the clock. 6. During trial prosecution examined thirteen witnesses. Among them PW 1 is the mother, PW 2 is the daughter, PW 3 is the son in law and PW 8 is the younger brother of the husband of the victim. PW 4 wrote the information lodged by PW 1 at P.S. and this PW 4 was declared hostile at the instance of prosecution. PW 5 is a co-villager of PW 1 and PW 6 is a co-villager of appellant and both of them were declared hostile at the instance of prosecution. PW 7 was a medical officer of Suri Sadar Hospital and he held post mortem examination over the dead body of victim. PW 9, PW 10, PW 11 and PW 13 are police personnels. 7. There is no eye-witness of the alleged occurrence. Prosecution case is based on circumstantial evidence. PW 7 was a medical officer of Suri Sadar Hospital and he held post mortem examination over the dead body of victim. PW 9, PW 10, PW 11 and PW 13 are police personnels. 7. There is no eye-witness of the alleged occurrence. Prosecution case is based on circumstantial evidence. In the impugned judgment the appellant was found guilty holding that the victim used to work as a labour under the appellant; the appellant used to maintain illicit relation with the victim; he used to visit the residence of the victim and sometimes he would spend night there with her as husband and wife; appellant spent the preceding night before the occurrence with the victim in the house of PW 1; in the early morning of the date of occurrence appellant enquired before PW 1 regarding disappearance of victim stating that she had gone on nature’s call; abscondence of appellant since after such enquiry and his surrender in court on 04.03.2009 in spite of the fact that his son Prashanta was arrested on 03.11.2008; the injuries found on the dead body of victim were not impossible to had been caused by the appellant and the accused/appellant did not give explanation f his abscondence. Said factors have been considered as links to form a complete chain of circumstances. 8. Defence of the appellant in the trial was denial of the allegations made against him and he claimed himself innocent. 9. Learned counsel for the appellant argued that prosecution led evidence in trial going beyond the case of prosecution stated in FIR, but it was not considered in the impugned judgment. He advanced the arguments that PW 1 lodged the FIR at P.S. and she did not claim in her deposition that her true version was not recorded in FIR, or she was compelled by any inducement or something else from any corner for making the FIR suppressing the true state of affairs. Further arguments on behalf of the appellant was that the findings made in the impugned judgment against the appellant relating to appellant’s stay with victim in the preceding night together and appellant’s enquiry before PW 1 in the fateful morning about disappearance of victim are based on evidence of PW 1 and PW 2 but none of them were examined by investigating police officers during investigation and the FIR is conspicuously silent about such allegations. According to learned counsel for the appellant said evidence relied in the impugned judgment is obviously afterthought and concocted story. But in the impugned judgment learned trial Judge has erroneously considered such evidence as major links in the chain of circumstances. He also submitted that the alleged illicit relationship between appellant and victim without repercussion in the locality and without objection of victim’s mother (PW 1) and daughter (PW 2) or any complaint before police or any authority is neither believable nor sustainable in law. According to learned counsel for the appellant, although firstly, Prashanta, the son of appellant was arrested as author of the crime he was not charge sheeted by police. As such, firstly nothing was brought to the notice of investigating agency to raise any suspicion even against the appellant about the alleged crime. He pointed out that although there were multiple injuries on the dead body of the victim but no incriminating weapon was recovered at the instance of the appellant and that mere abscondence of the appellant cannot be a ground for roping him with the crime. 10. Learned counsel for the State cited two decisions of the Hon’ble Supreme Court in Nachhittar Singh Vs. The State of Punjab reported in (1975) 3 SCC 266 and State of U.P. Vs. Dr. Ravindra Prakash Mittal reported in AIR 1992 SC 2045 . Learned counsel for the State submitted that the impugned judgment is full of reasoning and it needs no interference. It was also argued on behalf of the State that the trial Court has very rightly shown the chain of circumstances pointing out the guilt of the appellant and none else about the crime in the impugned judgment. 11. It is undisputed fact that the death of the victim was homicidal and her dead body was found floating in a pond named ‘Paler Pukur’ in the morning of 30.10.2008. The victim was murdered on the bank of the pond as per inquest report (exhibit-1), sketch map (exhibit-8) and seizure list (exhibit-5) and the said place of murder is an open place having access of the villagers. It is also not disputed that during life time the victim worked as a labour under the appellant and that some days before the occurrence there was a dispute between victim and the wife of appellant for which the work of the victim under appellant was discontinued. It is also not disputed that during life time the victim worked as a labour under the appellant and that some days before the occurrence there was a dispute between victim and the wife of appellant for which the work of the victim under appellant was discontinued. There is no eyewitness of the occurrence. 12. Exhibit-2 (FIR) speaks about work of victim in the house of appellant and visiting terms of appellant in the residence of the victim for which peace in the house of appellant was disturbed. Since after that appellant would not visit the residence of victim. There is no whispering in exhibit-2 that the appellant stayed with the victim in her residence in the preceding night of the occurrence which was the last night in life of the victim. There is no explanation in the deposition of PW 1, that is the author of the exhibit-2 as to why such vital aspect was not mentioned in the exhibit-2. 13. In her deposition PW 1 stated – “There has been love affairs between Sabu and Sadeswari and they used to live together as husband and wife. Sabu used to spend his night with my daughter in my house. The accused Sabu used to quarrel with my daughter. Sadeswari has one daughter, namely, Purnima from her husband Sukumar, Purnima had come to my house for delivery of her baby. Purnima delivered her baby at my house. On 12th Kartick about two years ago Sabu came to my house in the evening. He took his dinner at my house. Sabu was with my daughter Sadeswari in one room and I was with my grand-daughter Purnina alongwith one day baby in another room. Sabu and my daughter closed the door of that room. Four fire bricks were placed at the gate of my room so that I could not come out of that room. In the morning at 6 am Sabu called me and asked me whereabouts of Sadeswari requested him to open the door of my room. The door was opened and I came out of the room”. 14. Aforesaid statements of PW 1 made in deposition are totally absent in the FIR (exhibit- 2). During cross-examination PW 1 stated, “For the first time I am stating that Sabu came to my room and asked about whereabouts of Sadeswari”. 15. The door was opened and I came out of the room”. 14. Aforesaid statements of PW 1 made in deposition are totally absent in the FIR (exhibit- 2). During cross-examination PW 1 stated, “For the first time I am stating that Sabu came to my room and asked about whereabouts of Sadeswari”. 15. It is matter of consideration as to whether absence of the substance of aforesaid statements of PW 1 in exhibit- 2 is to be treated as omission or contradiction and whether such evidence of PW 1 appearing in her deposition should be considered trustworthy. The investigating police officer (PW 12) stated in his cross-examination that he had not further examined the complainant (PW 1) and he did not get any evidence in course of investigation that Sabu before the date of occurrence stayed at the house of Jasamati (PW 1) and took his dinner. Other investigating police officers also did not examine PW 1. 16. Having considered the exhibit-2 and the depositions of PW 1 and of investigating police officers we find and hold that the absence of the statements or substance of the deposition of PW 1 in exhibit-2 regarding appellant’s stay with victim together after taking dinner in the preceding night in a room in the house of PW 1 and appellant’s asking the PW 1 in the following early morning at 6 am which is the date of occurrence regarding whereabouts of the victim is not a negligible omission but a serious contradiction which is fatal for the prosecution. Necessarily, we like to mention that succinct averment in the written FIR (exhibit-2) which was made by PW 1 soon after the occurrence is that the appellant did not visit the residence of victim since before some dates of the occurrence. PW 1 deposed contradicting said averment and claimed presence of appellant in victim’s residence in the preceding night of the occurrence. Another significant factor is that the murder of the victim did not take place in the room where the victim stayed in the last night of her life. 17. PW 1 stated that Purnima (PW 2) had come to the house of PW 1 for delivery of her baby and she delivered her baby in house of PW 1. Another significant factor is that the murder of the victim did not take place in the room where the victim stayed in the last night of her life. 17. PW 1 stated that Purnima (PW 2) had come to the house of PW 1 for delivery of her baby and she delivered her baby in house of PW 1. It is also her evidence that in the preceding night of occurrence PW 1 and PW 2 alongwith the one day old baby were in a room in the house of PW 1. The PW 2 stated that one month before the death of her mother she came to the house of her grandmother PW 1 for delivery of her child. During cross-examination PW 2 stated that police did not examine her and she did not make any statement before police. She also did not state the matters to anybody else before deposing in court. She also stated that she did not see the dead body of her mother. She did not state to anyone that hearing the news she came and saw her mother’s body with injury. Contradicting PW 2 the PW 12 claimed that he recorded statement of Purnima Das (PW 2) and that Purnima had come to that village on receiving the news of incident and she stated before PW 12 that she found many marks of injury on the person of her mother. Such contradiction puts a question mark on the reliability of the evidence of PW 2 and PW 12 both. 18. PW 1 and PW 2 both are closely related to the victim and both of them tried to establish during trial that in the preceding night before the fateful morning the appellant went to the house of PW 1 and took dinner and stayed with the victim in a room in that night. PW 12 stated that he did not get any evidence in course of investigation that appellant stayed at the house of PW 1 and took dinner before the date of occurrence. This circumstance strongly supports the arguments of learned counsel for the appellant that PW 1 and PW 2 deposed stating an afterthought concocted story. 19. Be that as it may, we are not satisfied to accept the evidence of PW 1 and PW 2 who are in near and dear relation with the victim as intrinsically reliable or inherently probable. This circumstance strongly supports the arguments of learned counsel for the appellant that PW 1 and PW 2 deposed stating an afterthought concocted story. 19. Be that as it may, we are not satisfied to accept the evidence of PW 1 and PW 2 who are in near and dear relation with the victim as intrinsically reliable or inherently probable. 20. In India, the Latin Maxim – ‘falsus in uno falsus omnibus’ is not applicable. In exhibit- 2 we find a hint of relationship between appellant and victim and discontinuation of such relationship a few days before the fateful day. PW 1 and PW 2 described in their deposition as extramarital relation of the appellant in fact, but instead of deposing about discontinuation of their relationship/connection as stated in exhibit-2, PW 1 and PW 2 claimed that in the preceding night of the occurrence appellant took dinner in their house and stayed with the victim in a room. This is a serious contradiction to affect the prosecution case. Such contradiction invites a reasonable doubt as to whether really the appellant went to the residence of the victim in the preceding night of occurrence or appellant and the victim were last seen together by PW 1 and PW 2 after taking dinner in the house of PW 1. This vital aspect was not taken into consideration in the impugned judgment. On the same analogy truthfulness of PW 1 and PW 2 about appellant’s query to PW 1 in the morning at 6 a.m. regarding whereabouts of victim stating that the victim had gone on nature’s call but did not return does not appear to us free from reasonable doubt. In our opinion, had it been the fact that in the preceding night of occurrence the appellant stayed with victim in a room in house of PW 1 and in the early morning at 6 a.m. of the date of occurrence appellant had enquired about victim before PW 1 such vital fact certainly would have reflection in the written information (complaint which was marked exhibit-2) lodged at P.S. by PW 1 after three hours and forty-five minutes of such alleged conversation between PW1 and appellant. From the evidence of PW 1 and PW 2 read with evidence of PW 3 we may believe that the victim used to work under appellant during her life time and appellant used to maintain extra marital relation spending whole night with the victim till discontinuation of such relation due to disturbance on that issue in the house of appellant. But we do not believe that prosecution was successful to prove that appellant had gone to the house of PW 1 in the preceding night of occurrence and he spent the night with the victim and he enquired before PW 1 in the fateful morning about the victim. 21. In the impugned judgment at pages 32 and 33 learned trial Judge selected nine links putting serial numbers 1 to 9 to form a complete chain of circumstances. In the light of our observations made in foregoing paragraphs we have no hesitation to hold and we hold that out of said nine links two vital links being serial no. 4 and 5 have been selected in the impugned judgment without proof beyond reasonable doubt. Serial numbers 6, 7 and 9 speak about appellant’s conduct of absconding since the date of occurrence (30.10.2008) till his surrender in court on 4.3.2009. In this connection we like to note that initially the case was not started against the appellant and as per evidence of PW 12 prayer was made by him in court on 10.01.2009 for issuing warrant of arrest against the appellant. Within two months of that date the appellant voluntarily surrendered in court and as such it cannot be said that he was deliberately absconding for a long time after the occurrence. In our view, learned trial Judge did not rightly consider that aspect as three links in the chain of circumstances. 22. In Nachhittar Singh Vs. State of Punjab (supra) the case was based on eye-witness of the incident of murder of the victim Dan Singh. In the case on our hand there is no eye-witness of the occurrence. As such, the decision in Nachhittar Singh does not fortify the case of the prosecution. 23. In our view, the links as per serial no. 4 and 5 which were mentioned in page – 32 of the impugned judgment are found broken. In the case on our hand there is no eye-witness of the occurrence. As such, the decision in Nachhittar Singh does not fortify the case of the prosecution. 23. In our view, the links as per serial no. 4 and 5 which were mentioned in page – 32 of the impugned judgment are found broken. We find no other evidence of prosecution on record to repair the said broken links to form a complete chain of circumstances in order to bring home the charges under Sections 302/201, I.P.C. against the appellant. In State of U.P. Vs. Dr. Ravindra Prakash Mittal (Supra) it was held as reported in paragraph- 20 of AIR 1992 Supreme Court 2045 – “As pointed out supra, there is no direct evidence to connect the respondent with this offence of murder and the prosecution entirely rests its case only on circumstantial evidence. There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients to prove guilt of an accused person by circumstantial evidence are :- 1. The circumstances from which the conclusion is drawn should be fully proved; 2. The circumstances should be conclusive in nature; 3. All the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; 4. The circumstances should to a moral certainty, exclude the possibility of guilt of any person other than the accused. Vide (1) Rama Nand v. State of Himachal Pradesh , (1981) 1 SCC 511 : ( AIR 1981 SC 738 ); (2) Gambir v. State of Maharashtra, (1982) 2 SCC 351 : ( AIR 1982 SC 1157 ); (3) Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330 : ( AIR 1983 SC 446 ); (4) Ram Avatar v. State of Delhi Administration, 1985 (Supp) SCC 410 : ( AIR 1985 SC 1692 ).” 24. In the case on our hand no conclusion can be drawn that the appellant was last seen together with the victim in the last night before occurrence of murder of the victim and that in the fateful morning appellant enquired about the victim before PW 1. In the case on our hand no conclusion can be drawn that the appellant was last seen together with the victim in the last night before occurrence of murder of the victim and that in the fateful morning appellant enquired about the victim before PW 1. Since no incriminating weapon of the murder was recovered at the instance of appellant and the incident of murder occurred in a public place and no other concrete circumstance to connect the appellant with the murder of the victim is established in the evidence adduced by prosecution in trial it cannot be said that there is any circumstance of conclusive in nature to rope in the appellant in the case of murder of the victim. Even if for the sake of arguments, though not proved, it be believed that prosecution could establish that the appellant was last seen together with victim in the last night and the appellant enquired about victim before PW 1 in the fateful morning stating that the victim went on nature’s call and did not return and thereafter dead body of victim was found floating in a pond at a distant place with signs of murder on the bank of the pond the same also cannot be considered as consistent only with the hypothesis of appellant’s guilt excluding any possibility of guilt of any person other than the appellant. Therefore, the decision in State of U.P. Vs. Dr. Ravindra Prakash Mittal (supra) also cannot improve the prosecution case. 25. In summing up, we find and hold that in the impugned judgment learned trial Judge arrived at an erroneous decision holding the appellant guilty of the charges under Section 302/201, I.P.C. The appellant is found not guilty of the charges under Section 302/201, I.P.C. by us in this judgment and he deserves acquittal. 26. This appeal is, therefore, allowed. Impugned judgment of conviction and sentence of the accused/appellant is set aside. The appellant is acquitted of the charges under Section 302/201, I.P.C. He is set at liberty and be released from custody forthwith if his further detention is not wanted in any other case. 27. A copy of this judgment alongwith LCR be sent from the department to the trial Court for information and implementation of this judgment by compliance passing necessary order and doing the needful in accordance with law. 28. 27. A copy of this judgment alongwith LCR be sent from the department to the trial Court for information and implementation of this judgment by compliance passing necessary order and doing the needful in accordance with law. 28. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record in compliance of usual formalities. I agree. Later on:- Today this appeal was listed “For judgment”. There is an error in describing the appellant in cause title of the appeal in the day’s list. The registration number of the appeal however has been published correctly. As learned counsel of both sides are present, we have delivered the judgment itself. I agree.