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2018 DIGILAW 908 (CAL)

Ashok Santra @ Khoka v. State of West Bengal

2018-12-10

JAY SENGUPTA, MD.MUMTAZ KHAN

body2018
JUDGMENT : Jay Sengupta, J. The two appeals being C.R.A. No. 827/2006 and C.R.A. No. 07/2007 arise out of the same impugned judgment and order of conviction and sentence and therefore, the two were together taken up for hearing. C.R.A. No. 827/2006 was preferred by two appellants namely Ashok Santra and Chandugopal Koley and C.R.A. No. 07/2007 was preferred by appellant Astam Santra. It may be germane to mention that the appeal being C.R.A. No. 287/2006 had abated as against the appellant Chandugopal Koley as he had passed away on 14th December 2016. The appeals were directed against the judgment and order of conviction dated 3rd November 2006 and sentence dated 4th November 2006 passed by the Learned Additional Sessions Judge, 5th Court, Howrah in Sessions Trial Case No. 684/2005, thereby convicting all the three appellants under Section 302 read with Section 34 of the Penal Code and sentencing them each to suffer imprisonment for life and to pay a fine of Rs. 2000/-, in default to suffer rigorous imprisonment for six months. By the same judgment the accused Madhai Santra was held not guilty of the offence charged with. 2. On 15th June 1993 PW 1 lodged a First Information Report with the Jagatballavpur Police Station against the three appellants and two others under Section 302 read with Section 34 of the Penal Code. PW 1 alleged that her fourth daughter Krishna Jhanj had a love affair with the appellant Astam Santra. About 1 years ago the two got married by registration. But thereafter the appellant Astam Santra became deeply involved with PW 9. On 13th June 1993 at about 21:00 hours the said appellants Astam Santra and the accused Pratima Pal took away the victim for the purpose of a feast. PW 1, in good faith, allowed her daughter to go. At about 21:30 hours PW 1 went to the house of the appellant Astam Santra and found Astam Santra, Madhai Santra, Khoka Santra and Pratima Pal present there. Astam told her that some more time will be required. Next day at about 4:30 hours PW 1 found her daughter lying dead on the bank of a 'doba'. 3. Investigation commenced. At about 21:30 hours PW 1 went to the house of the appellant Astam Santra and found Astam Santra, Madhai Santra, Khoka Santra and Pratima Pal present there. Astam told her that some more time will be required. Next day at about 4:30 hours PW 1 found her daughter lying dead on the bank of a 'doba'. 3. Investigation commenced. PW 15, a Sub Inspector of Police, held the inquest over the dead body of the victim on 14th June 1993 at 11:30 hours in the village near a pond where the body of the deceased was lying. He found the face of the body to be darker than the rest of the body, blood percolated from the nose and froth from the mouth and the tongue came out. On enquiry, PW 15 learnt that the appellant Astam and the victim, although married by way of a registration, were living separately as unmarried. He learnt that in the night of 13th June 1993 the victim was seen sitting on a rock and gossiping with the appellant Astam Santra and the accused Pratima Pal. The victim did not return home that night. PWs 6 and 11 were two of the witnesses to the inquest. On 15th June 1993 at about 15:00 hours, PW 13 conducted post-mortem examination over the dead body of the victim. In his opinion death was due to garrotting by cloth possibly from behind and it was homicidal and ante-mortem in nature. After completion of investigation, the Investigating Agency submitted a chargesheet. On 24th February 2006 charges were framed against the appellants Astam Santra, Ashok Santra, Chandugopal Koley and accused Madhai Santra. It may be pertinent to state that the accused Pratima Pal did not face the trial and passed away during investigation. 4. The prosecution examined as many as fifteen witnesses to establish its case. From the cross-examination of the witnesses by the defence and from the examination under Section 313 of the Code it appears that the defence case was primarily a denial of the prosecution case. 5. From a careful perusal of the evidence on record it appears that, PW 1 was the de facto complainant of the case and the mother of the deceased Krishna Jhanj. She deposed that the victim and the appellant Astam were married to each other both by 'registry' marriage as well as by social ceremony. 5. From a careful perusal of the evidence on record it appears that, PW 1 was the de facto complainant of the case and the mother of the deceased Krishna Jhanj. She deposed that the victim and the appellant Astam were married to each other both by 'registry' marriage as well as by social ceremony. Sometimes the victim would live in her in-laws' place and sometimes in her matrimonial home. PW 1 deposed that the appellant Astam had an extra marital affair and when the victim objected to this, he became angry. The appellant Astam and the accused Pratima took the victim for a feast on the date of occurrence. But, as the victim did not return, PW 1 and PW 3 went to the appellant's house and found the appellants and the accused Pratima present there. The appellant Astam and Pratima said that the feast would continue and that the victim would come back a little later. The dead body of the victim was found on the next morning. The accused Pratima died in the meantime. PW 1 was a seizure list witness as well. She told about the incident to the persons assembled near the place where the dead body was found. PW 2 was the victim's uncle. He deposed that on the previous night before detection of the dead body at about 3 O' clock, he found the appellants and the accused Pratima standing a little away from the place of occurrence. On seeing him they fled away. Sometime later the dead body of the victim was found near the bank of the nearby pond. He stated that the victim had a 'registry' marriage with the appellant Astam. In his cross-examination, he admitted that he did not tell the police that he had seen the appellants last night. He told the police that he returned to his house on the next morning. PW 3 was the victim's sister. She deposed about the marriage between the victim and the appellant Astam. She deposed that the appellant Astam mixed with another lady and used to quarrel with the victim. On the fateful night the appellant Astam and the accused Pratima took the victim for a feast. As the victim did not return, she and PW 1 went to the house of the appellant Astam and found all the accused present there. She deposed that the appellant Astam mixed with another lady and used to quarrel with the victim. On the fateful night the appellant Astam and the accused Pratima took the victim for a feast. As the victim did not return, she and PW 1 went to the house of the appellant Astam and found all the accused present there. The accused told them that the feast would take some more time to complete and that they would send the victim to their house. The victim's dead body was found by PW 1 on the next morning. She deposed that the 'gamcha' which was found with the dead body belonged to the appellant Astam. She scribed the FIR that was lodged by PW 1. She was also a witness to the seizure. In her cross, she admitted that she did not tell the police that the 'gamcha' belonged to appellant Astam. PW 4 was an uncle of the victim. He had seen the accused Pratima on the previous night at the gate of their house. Otherwise he was a post-occurrence witness and saw the dead body. PW 5 was a Gram Panchayat member, a post-occurrence witness and a witness to the seizure. PW 6 was the victim's brother. He deposed about the marriage of the victim and the appellant Astam. The appellant Astam and the accused Pratima took the victim for a feast on the fateful night. At about 22:00 hours, he went to Mahaprobhutala (also known as Harisabhatala) for sleeping there as it was too hot. He noticed all the accused standing near the 'bharar ghor' at Harisabhatala. On seeing them he approached them. The accused Astam told him that as her sister was there he should go away. PW 6 further deposed that at about 12:30 in the night when he woke up for urinating he heard from about 25/30 feet distance the voices of all the appellants and the victim coming from the side of the pond. He thought that they might have gone there for washing hands after attending the feast. On the next morning the dead body of the victim was found on the bank of the pond. Blood was coming out from the nostrils and froth from the mouth. PW 6 noticed scratch injuries on different parts of the dead body. He also found a 'gamcha' lying beneath the dead body of the victim. On the next morning the dead body of the victim was found on the bank of the pond. Blood was coming out from the nostrils and froth from the mouth. PW 6 noticed scratch injuries on different parts of the dead body. He also found a 'gamcha' lying beneath the dead body of the victim. When he went to the houses of accused Astam and Khoka, they were found absent in the respective houses. PW 6 was also a signatory to the inquest. He stated that on that night he did not see the (acquitted) accused Madhai Santra. He deposed that the appellant Astam used to go to his paramour's house to sleep. In the cross, PW 6 stated that during hot season boys used to sleep at Harisabhatala. He admitted that he did not tell police about the incident of 22:00 hours. But, PW 6 did tell the police about the incident of 12:30 hours at night. PW 7 was a local man admittedly close to the appellant Astam who turned hostile. Although a seizure list witness, he deposed that he had signed on blank paper. PW 8 was a owner of a 'Pan Boroj'. He was a post- occurrence witness who saw the dead body. He was also the brother of the paramour of the appellant Astam and he admitted that the appellant Astam used to sleep in their house. He too was declared hostile. PW 9 was the alleged paramour of the appellant Astam. She deposed that she did not know about the marriage of the victim and the appellant Astam. Although she had given statement before the Learned Magistrate under Section 164 of the Code, she was declared hostile during trial. She alleged that she gave the statement of the Learned Magistrate out of fear. Although PW 10, the mother of the alleged paramour, turned hostile, she did admit that the appellant Astam used to stay in their house. PW 11 was a cousin of the victim girl. In the preceding night, he met the accused in front of the victim's house. He was an inquest report witness. But, he too was declared hostile. PW 12 was a police constable who was a witness to the inquest. PW 13 was the doctor who conducted post-mortem examination over the dead body. In the preceding night, he met the accused in front of the victim's house. He was an inquest report witness. But, he too was declared hostile. PW 12 was a police constable who was a witness to the inquest. PW 13 was the doctor who conducted post-mortem examination over the dead body. He opined that the death was caused due to garrotting by cloth and the injury was homicidal in nature. PW 14 was a clerk at the office of the marriage registrar. He deposed that the marriage between appellant Astam and the victim was registered. PW 15 was the Investigating Officer of the case. He deposed that PW 6 did not tell, in specific words, about the incident of 12:30 hours. In the examination of the appellant Astam under Section 313 of the Code, he denied the factum of any feast or for that matter, the factum of marriage with the victim. He claimed that he was a tenant of PW 9. 6. Mr. Prabir Mitra, the Learned Advocate appearing on behalf of the appellants Ashok Santra in C.R.A. No. 827/2006 and Astam Santra in C.R.A. No. 07/2007, vehemently opposed the judgment and order of conviction and sentence passed against the appellants. He submitted that although the dead body was detected on 14th June 1993 at about 16:30 hours, the same was reported by way of a formal First Information Report only on 15th June 1993 at about 22:20 hours. Hence there was an inordinate delay in lodging the First Information Report. He further submitted that since the inquest was done earlier on the basis of a prior information, the present First Information Report was hit by Section 162 of the Code. The Learned Advocate submitted that much suspicion shrouds the filing of the First Information Report. The time of inquest was nearly 30 hours before lodging of the First Information Report. Even in the inquest everything was not disclosed. PW 1 only said that the victim was seen gossiping with the appellant Astam and others on a rock of a storeroom. He submitted that no photograph of the purported 'gamcha' was available, although froth was seen coming out from the mouth of the victim. Viscera, hair, etc. were not sent to the FSL for examination. According to the Learned Advocate, most of the witnesses who supported the case were either related or interested witnesses. He submitted that no photograph of the purported 'gamcha' was available, although froth was seen coming out from the mouth of the victim. Viscera, hair, etc. were not sent to the FSL for examination. According to the Learned Advocate, most of the witnesses who supported the case were either related or interested witnesses. Several witnesses including the victim's own cousin PW 11 turned hostile. In fact, the hostile witness PW 9 said that police had threatened her to give a statement under Section 164 of the Code. PW 7 was made to sign on blank papers. Yet, several relevant witnesses were not examined like the one who identified the dead body to the police during inquest and the persons at Harisabhatala as named by PW 6. The Learned Advocate submitted that the chain of circumstances appearing against the appellants was not complete. He relied on a compilation of judgments, which is as under On inquest before FIR, AIR 1975 SC, 2002 SCC (Cri) 153, 1994 SCC (5) 1390, 2011(2) CHN (2), 2011 (2) CCLR (2) 143, 1994 CriLJ 280; On non-examination of material independent witness, AIR 1954 SC 51 , 2002 SCC 1352, 2002 SCC (Cri) 1370; On not sending to FSL, AIR 1976 SC 2263 , 2003 SCC (Cri) 801, 2003 SCC (Cri) 1965; On 'resting' on interested witnesses, AIR 1978 SC 59 , 2002 SCC 350 , 2002 SCC 1352; On circumstantial evidence, 2009 (1) SCC (Cri) 104, 2005 SCC (5)1225, 2016 (3) SCC (Cri) 365. 7. Mr. Sudip Ghosh, the Learned Advocate appearing on behalf of the State, strongly supported the impugned conviction and sentence imposed upon the appellants. He submitted that PW 1, the victim's mother gave a last seen together account. There was no suggestion given about any previous enmity with PW 1. PW 2 found the appellants and some others at about 3 a.m. i.e., immediately after near the place of occurrence. He deposed that on seeing him, the accused fled away. PW 6, the cousin of the victim, saw the victim and the appellants and others at 10 p.m. near Harisabhatala. This may very well be treated as last seen together account of the witnesses. At about 12:30 in the night when he went out for urination, PW 6 heard voices of the appellants and the victim from the side of the pond. This may very well be treated as last seen together account of the witnesses. At about 12:30 in the night when he went out for urination, PW 6 heard voices of the appellants and the victim from the side of the pond. Not stating about the incident of 12:30 at night by PW 6 in specific words to the police cannot render the evidence in Court an improvement. PW 11, a cousin of the victim, last saw the appellant Astam, the accused Pratima and the victim in the previous night. The Learned Advocate submitted that in terms of sequence, PWs 1, 11, 6 and 2 were the witnesses to the pre and post- occurrence events in respect of the murder of the victim. He argued that no explanation was given by the appellants as to what happened after the accused and the victim were last seen together. Even the medical evidence clearly supported the prosecution case. The Learned Advocate submitted that the motive for murder was also present. Although PW 9 turned hostile, she did not deny making a statement under Section 164 of the Code. This statement showed that the appellant desperately wanted to marry PW 9. He submitted that the decisions relied upon by the Learned Advocate of the appellants were totally distinguishable on facts from the present case. 8. We heard the submissions of the Learned Advocates appearing on behalf of the appellants and the State and carefully went through the evidence and other materials on record. 9. The death of the victim was homicidal. She was seen and/or heard to be in the company of some of the accused before the incident. The appellants were also seen near the place of occurrence before and after the incident. The case at hand is thus based purely on circumstantial evidence. So, it would be of prime importance to see whether the chain of circumstances pointing towards the guilt of the accused is complete or not. 10. Motive assumes a great significance in cases based on circumstantial evidence. So, before dealing with the core facts and circumstances constituting the offence, it would be pertinent to delve into the question of motive. Here, despite having a registered marriage effected between the couple, the appellant Astam and the victim Krishna were staying separately. According to PWs 1, 3, 6 and 9, Astam was having an illicit affair with PW 9. So, before dealing with the core facts and circumstances constituting the offence, it would be pertinent to delve into the question of motive. Here, despite having a registered marriage effected between the couple, the appellant Astam and the victim Krishna were staying separately. According to PWs 1, 3, 6 and 9, Astam was having an illicit affair with PW 9. He was often sleeping in the house of PW 9 at night as per evidence of PWs 6, 8 and 9. In fact, although hostile, PW 9 had stated in her statement under Section 164 of the Code that Astam desperately wanted to marry her. Therefore, the appellant Astam's affair with PW 9 and his consequent desire to dump the victim gives a clear inkling of a motive to do away with the victim. 11. Now, the incriminating circumstances appearing against the appellants may be enumerated as under - (i) As per PWs 1, 3 and 6, in the evening of 14.06.1993, the appellant Astam and the accused Pratima took the victim Krishna from her house for attending a feast. (ii) According to PW4, on 14.06.1993 in the evening he saw the accused Pratima at the gate of their house. (iii) PW11 deposed that on the same evening, he saw the accused in front of the victim's house. (iv) According to PWs 1 and 3, in the night of 14.06.1993 as the victim did not return, they went to the appellant Astam's house, saw the accused including the appellants present who told them that the victim would return late, after the feast. (v) As per PW6, on 14.06.1993 at about 22.00 hours, he saw all the appellants at Harisabhatala, a little away from the pond. The appellant Astam asked him to leave as his sister was purportedly present there. (vi) PW6 also deposed that on 15.06.1993 at about 0.30 hours, he heard the voices of the appellants and the victim coming from the side of the pond. (vii) According to PW2, on 15.06.1993 at about 3.00 hours he found the appellants and the accused Pratima standing at a little distance away from the place of occurrence. 12. Quite like seeing, hearing too is direct evidence. PW 6 was well aware of the voices of the victim, his sister and her friends, the other accused. (vii) According to PW2, on 15.06.1993 at about 3.00 hours he found the appellants and the accused Pratima standing at a little distance away from the place of occurrence. 12. Quite like seeing, hearing too is direct evidence. PW 6 was well aware of the voices of the victim, his sister and her friends, the other accused. Therefore, PW6's hearing their voices near the pond at 0:30 hours of 15.06.2018 is very significant indeed. 13. The above noted facts and circumstances give an unbroken chain that, without a doubt, points towards the guilt of the appellants. 14. We, however, are not attaching too much importance to the recovery of a 'gamcha' from below the dead body and the identification of it as belonging to the appellant Astam. 15. The non-stating of a fact to the police in the exact words, in respect of a circumstance as alleged, cannot be treated as an improvement during trial. On the contrary, the evidence present in the case as regards the events at 0:30 a.m. as unfolded before PW 6 seems to be quite cogent and convincing. 16. The medical evidence also supports the prosecution case in adequate measure. 17. So far as the decisions relied upon by the Learned Advocate for the appellants are concerned, they lay down well-established principles of law. But, on facts they do not have any special bearing on this case and some are distinguishable on facts. 18. We do not see anything wrong in the inquest preceding the registration of a formal First Information Report in this case where a specific unnatural death case had already been started. 19. Witnesses were examined in sufficient numbers who were indeed the most natural witnesses to the alleged facts and circumstances. But, for instance, a person going to sleep at Harisabhatala would have no reason to remember PW 6 coming there on a particular night. So, citing such a person as a witness would have been futile. 20. Even the witnesses who were related to the victim had no reason to falsely implicate the appellants. There is no evidence of any previous animosity between them and the appellants. Moreover, they would more likely be interested in having the actual guilty punished. 21. So, citing such a person as a witness would have been futile. 20. Even the witnesses who were related to the victim had no reason to falsely implicate the appellants. There is no evidence of any previous animosity between them and the appellants. Moreover, they would more likely be interested in having the actual guilty punished. 21. Furthermore, the absence of any FSL Report, albeit a defect in the investigation of the case, is not fatal to the prosecution case on the present facts and does not efface the abundance of incriminating materials present against the appellants. 22. The existence of a motive behind the murder, the unbroken chain of incriminating circumstances appearing against the appellants and a corroboration by the medical evidence adduced in this case unerringly point towards the guilt of the appellants. 23. In view of the above discussions, we hold that the prosecution case has been proved beyond any reasonable doubt as against the present appellants and hence, the appeals are dismissed and the conviction and sentence are upheld. 24. A copy of the judgment along with the Lower Court Records may be sent down to the learned Trial Court forthwith for information and necessary action. 25. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.