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2019 DIGILAW 248 (CAL)

KAJAL HAZRA v. STATE OF WEST BENGAL

2019-02-20

JOYMALYA BAGCHI, MANOJIT MANDAL

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JUDGMENT : Joymalya Bagchi, J. 1. The judgment and order dated 17-05-2013 and 18-05-2013 passed by the learned Additional Session Judge, Fast Track Court, Dubrajpur, Birbhum in Sessions Case No. 43 of 2009 corresponding to Sessions Trial No. 03/March/2009 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for four months has been assailed. 2. The prosecution case, as alleged, against the appellant is to the effect that the appellant had married Shyamali about 18 years ago. Two daughters and one son was born to the couple. Ten years prior to the incident the appellant had sold his house and shifted to a plot which was gifted by his father-in-law adjacent to the residence of his in-laws. Two years prior to the incident, Shamali developed an illicit relation with one Dhulan Sk. of village Sija. Over such issue quarrels took place between the appellant and Shyamali. In the night of 10/11-08-2009 appellant murdered Shyamali by throttling her with a napkin (gamcha). Appellant admitted his guilt in front of the police and villagers. Over the incident, cousin of the victim Madhusudhan Hazra (P.W. 1) lodged FIR resulting in registration of Dubrajpur P.S. Case No. 73/07 dated 11-08-2007 under Section 302 of the Indian Penal Code. In conclusion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, Fast Track Court, Dubrajpur, Birbhum. 3. Charge was framed under Section 302 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried. 4. In the course of trial, the prosecution examined fourteen witnesses and exhibited a number of documents. In conclusion of trial, the trial judge by the impugned judgment and order dated 17-05-2013 and 18-05-2013 convicted and sentenced the appellant, as aforesaid. 5. Mr. Bhattacharyya, learned counsel appearing for the appellant argued that the alleged confessional statement of the appellant before police officer is hit by Section 25/26 of the Evidence Act and is inadmissible in law. Extra judicial confession made before P.W. 5 and 10 is also unreliable. 5. Mr. Bhattacharyya, learned counsel appearing for the appellant argued that the alleged confessional statement of the appellant before police officer is hit by Section 25/26 of the Evidence Act and is inadmissible in law. Extra judicial confession made before P.W. 5 and 10 is also unreliable. The said witnesses were belatedly examined and no circumstance is forthcoming the appellant would repose faith in the said witness and made self-incriminating statement to them. As the aforesaid confessional statements were not proved, the chain of circumstances relied upon by the prosecution has snapped and do not establish the guilt of the appellant. He also argued that the body of the victim had not been found in the room of the appellant but in the courtyard of P.W. 1. Hence, no adverse inference can be drawn against the appellant. Under such circumstances, the appellant is entitled to an order of acquittal. 6. On the other hand, Mr. Maiti, learned counsel appearing for the State submitted that the appellant used to reside with the wife in the first floor of the house. On the fateful night the couple was sleeping together and thereafter her dead body was found in the courtyard of P.W. 1. P.W. 12, the postmortem doctor deposed that the victim had suffered asphyxial death. Immediately after the incident the appellant made confessional statements before the villagers as well as the police. Hence, the prosecution has been able to prove its case beyond reasonable doubt. 7. P.W. 1 is the cousin of the victim Shyamali and the de facto complainant in the instant case. He deposed that the appellant committed murder of the victim by strangulation with a napkin (gamcha). The appellant suspected the character of Shayami. After committing murder the appellant went to the police station and confessed his guilt. Police brought the appellant to the spot in a jeep. He confessed his guilt at the spot. P.W. 1 was directed to lodge FIR by one Bidyut Bag, a neighbour, who scribed the FIR. P.W. 1 put his signature on it. He also signed on the inquest report and on the seizure list relating to the seizure of one mat and gamcha. In cross-examination, he stated Sabitri Hazra, the mother of Shyamali, is his aunt. Their houses are situated in a compact block having same courtyard. The dead body of Shyamali was lying in the courtyard of his father. 8. He also signed on the inquest report and on the seizure list relating to the seizure of one mat and gamcha. In cross-examination, he stated Sabitri Hazra, the mother of Shyamali, is his aunt. Their houses are situated in a compact block having same courtyard. The dead body of Shyamali was lying in the courtyard of his father. 8. P.W. 2 Uttam Hazra is another cousin of Shyamali. He has corroborated the evidence of P.W. 1. 9. P.W. 3 is the mother of the appellant. She was declared hostile. She, however, stated that the couple used to reside in the first floor of the house while she used to reside in the ground floor. She further deposed that the women folk of the house used to go to the pond to answer nature's call. The appellant informed her that on the fateful night victim had gone to the village pond to answer nature's call. Thereafter, she was not found. As a result appellant reported the incident to the police station. 10. P.W. 4 is the scribe of the first information report. He proved the first information report. 11. P.W. 9, mother of the victim, deposed the appellant had strangulated his daughter. Mother of the appellant (P.W. 3) informed her about the incident. Although P.W. 9 deposed in chief she found the body of her daughter in the upstairs room, in cross-examination she contradicted herself and deposed when she came to the spot she found the body in courtyard. 12. P.Ws. 5 and 10 are night guards who were employed by local panchayat to guard overhead electric line in the area. They deposed around 3-3.30 a.m. they saw a man walking hurriedly down the road. On questioning, he disclosed his identity as the appellant and stated that he had murdered his wife and was proceeding to the police station. In cross-examination, P.W. 5 admitted that he did not inform the matter to the police station and had been interrogated by the I.O. two months after the incident. 13. In similar line, P.W. 10 admitted in cross-examination that he had stated the incident to Barababu (police) for the first time one year after the incident. 14. P.W. 12 is the postmortem doctor who conducted the postmortem examination over the victim. He proved the postmortem report. 13. In similar line, P.W. 10 admitted in cross-examination that he had stated the incident to Barababu (police) for the first time one year after the incident. 14. P.W. 12 is the postmortem doctor who conducted the postmortem examination over the victim. He proved the postmortem report. He deposed the death of the victim was due to severe asphyxia caused by strangulation, ante mortem in nature. In cross-examination, he stated that in his report he had first written 'hanging' and subsequently he penned through the said word and inserted the word 'strangulation' and put his signature thereon. 15. P.W.S 7 and 11 are police personnel attached to Dubrajpur police station. P.W. 7 deposed on 11-08-2007 he went to village Kalyanpur with Barababu. On reaching the spot he came to know that accused committed murder of his wife by strangulation with the help of gamcha. He took the dead body of the victim for postmortem examination. In cross-examination, he stated he came to know from villagers that accused had committed murder by strangulation. 16. P.W. 11 ASI of police attached to Dubrajpur P.S. stated that on 11-08-2007 the appellant had come to Dubrajpur P.S. and confessed his guilt. Thereafter, they went to the village along with Barababu (P.W. 14). Before the public, the appellant again admitted his guilt. He put his signature on the seizure list. 17. P.W. 14 is the investigating officer in the instant case. He deposed that on 11-08-2007 he was attached to Dubrajpur P.S. On that date in the early morning the appellant came to the police station and stated that he murdered his wife as she had illicit connection with one Dhulan Sk. of vilalge Sija. He entered the said fact in the G.D. book being G.D. entry no. 428 dated 11-08-2007. They found the dead body of the victim lying in the courtyard of the house. He seized pillows and other articles from the room of the appellant. He requested P.W. 1 to lodge written complaint. He forwarded the written complaint to police station and take up investigation. He recorded statement of witnesses under Section 161 Cr.P.C. He prepared inquest report. He seized old napkin and mat which was lying by the side of the dead body. Appellant identified the articles and he admitted that he committed the murder of Shyamali. He produced the appellant to Court. He recorded statement of witnesses under Section 161 Cr.P.C. He prepared inquest report. He seized old napkin and mat which was lying by the side of the dead body. Appellant identified the articles and he admitted that he committed the murder of Shyamali. He produced the appellant to Court. He submitted application for recording judicial confession of the appellant but he refused to do so. He collected P.M. report and FSL report. After completion of investigation he submitted charge-sheet. 18. Prosecution has relied on three extra-judicial confessions allegedly made by the appellant. First of such confession is said to have been made by him at the police station immediately after the incident. PW14 deposed that on 11th August, 2007 in the morning the appellant came to the police station and confessed his guilt which was diarised as Exhibit-10. His deposition is corroborated by PW11, an ASI of Police. However, PW7, a police constable attached to the said police station is silent with regard to the said confession. Apart from the aforesaid omission in the evidence of P.W. 7, such confession made by the appellant before the police officer is inadmissible under Section 25 of the Evidence Act. Thereafter, the appellant was taken to the spot in a police jeep by PW14 and it is claimed that he again confessed his guilt before the villagers namely, PW1, 2 & 4. This confession is also inadmissible in law in view of Section 26 of the Evidence Act as the same was made while the appellant was in the custody of the police officer (PW14). Hence, both the confessions made before the police officer (PW14) as well as before P.W.s 1, 2 & 4 while the appellant was in police custody, in my considered opinion, are inadmissible in law and cannot be relied upon. 19. This leaves the prosecution with the other extra-judicial confession which is purportedly made before the night watchmen of the village namely, PW5 & 10. Both the witnesses deposed that they had noticed the appellant walking down the road in a hurried manner in the early hours of 11th August, 2007. On query, the appellant had confessed his guilt and stated that he was going to the police station. In cross-examination, both the witnesses stated that they did not divulge the incident to the police personnel who came to the spot. 20. On query, the appellant had confessed his guilt and stated that he was going to the police station. In cross-examination, both the witnesses stated that they did not divulge the incident to the police personnel who came to the spot. 20. On the other hand, it has come on record while PW5 was examined two months after the incident, PW10 had been examined one year from the incident. The conduct of PW5 & 10 in keeping mum with regard to the extra-judicial confession made to them by the appellant and not divulging such fact to the police when they arrived at the spot gives rise to serious doubt as to their credit worthiness. It is also relevant to note that the said witnesses had been belatedly examined by the Investigating Agency and it has also come out during cross-examination that they used to receive remuneration from the concerned police station through the local panchayat. 21. In the backdrop of the aforesaid facts, I am of the view the versions of the aforesaid witnesses with regard to the appellant making extra-judicial confession to them are untrustworthy. Hence, I am of the opinion that the extra-judicial confessions relied by the prosecution are either inadmissible in law or have not been proved beyond reasonable doubt. 22. In the face of such infirmities in the prosecution case Mr. Maity, learned Additional Public Prosecutor has strongly relied on the circumstance that the appellant and the victim used to reside in the first floor of the room and on the fateful night the victim had been murdered by the appellant in the said room by strangulation. Appellant had failed to give any cogent explanation how the victim suffered homicidal death and hence, adverse inference ought to be drawn against her. 23. I would have otherwise accepted such contention of the learned Additional Public Prosecutor but for the fact that there is no evidence on record that the body of the victim had been recovered from the room which was occupied by the appellant and the victim. On the other hand, the body of the victim had been recovered from a courtyard in front of the house of PW1 (cousin of the victim). On the other hand, the body of the victim had been recovered from a courtyard in front of the house of PW1 (cousin of the victim). Although PW9, mother of the victim deposed that she had seen the dead body of the victim in the room of the appellant, in cross-examination, she admitted when she was called to the spot the body of her daughter was lying in the courtyard of Madhu (PW1). Hence, there is no clear evidence that the dead body of the victim was found in the first floor room where the couple resided. 24. On the other hand, evidence has come on record that the women folk of the house including the victim used to go out to ease themselves in the nearby pond. In view of the aforesaid evidence on record, the possibility of the victim going at night prior to her death out of the bed room to answer nature's call cannot be ruled out. It is the duty of the prosecution to prove its case beyond reasonable doubt. Only when all the circumstances proved by the prosecution create a state of affairs wherein the cause of death is within the special knowledge of the accused, does the onus shift on the latter and it becomes incumbent on him to explain the circumstances leading to the homicidal death of the victim. 25. As discussed above, possibility of the victim moving out of the room occupied by herself and the appellant at night to answer nature's call cannot be wholly ruled out. 26. In the aforesaid factual backdrop, it would be incorrect to come to a conclusion that the prosecution has been able to prove that the victim suffered homicidal death in the room occupied by the appellant and herself. As the prosecution has failed to prove such fact beyond reasonable doubt, it would be hazardous to convict the appellant by drawing an adverse inference against him as he had failed to explain the circumstances in which the victim had suffered homicidal death. 27. In the light of the aforesaid discussion, I am inclined to extend the benefit of doubt to the appellant and acquit him of the charges levelled against him. 28. Conviction and sentence of the appellant is set aside. 29. The appeal is accordingly, allowed. 30. 27. In the light of the aforesaid discussion, I am inclined to extend the benefit of doubt to the appellant and acquit him of the charges levelled against him. 28. Conviction and sentence of the appellant is set aside. 29. The appeal is accordingly, allowed. 30. The appellant shall be released from custody forthwith, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure. 31. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 32. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree.