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2019 DIGILAW 85 (CAL)

BANDHAN MUNDA v. STATE OF WEST BENGAL

2019-01-17

JOYMALYA BAGCHI, RAVI KRISHAN KAPUR

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JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against judgment and order dated 16.01.2013 and 08.04.2013 passed by the learned Additional Sessions Judge, 1st Court, Jalpaiguri in Sessions Case No. 23 of 1998 convicting the appellant for commission of offence punishable under Section 302/34 and Section 201 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs. 5,000/- for the commission of offence punishable under Section 302/34 of the Indian Penal Code and further sentencing him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for six months for the offence punishable under Section 201 of the Indian Penal Code, both the sentences to run concurrently. 2. The prosecution case as alleged against the appellant and co-accused Sukhu Munda (juvenile in conflict with law) is to the effect that one Bikash Ekka, son of Rubi Ekka the victim had an affair with Leo Munda, the sister of the appellant and coaccused Sukhu Munda. As a result, she became pregnant and subsequently committed suicide. Being angry, on 08.06.1997 at around 9.00/10.00 a.m., the appellant and Sukhu Munda went to the house of Rubi Ekka to search her son, Bikash Ekka. But they could not find him. Sukhu Munda started assaulting Rubi Ekka in the first floor of the house while the appellant stood in the ground floor. Thereafter, it is alleged that they dragged away the victim from her house. On the next day in the morning dead body of the victim was found at drain no. 6 of Dalim Kote Division of the Tea estate. Over such issue Ketan Ekka (P.W. 13) lodged written complaint with police station resulting in registration of Mal P.S. Case No. 86/97 dated 09.06.1997 under Sections 302/201 of the Indian Penal Code against the appellant and Sukhu Munda. In conclusion of investigation, charge-sheet was filed against the appellant and co-accused under sections 302/201/34 of the Indian Penal Code. As Sukhu Munda was a juvenile in conflict with law, his case was segregated and tried before the Juvenile Justice Board. Charge was framed against the appellant under Section 302/34 and 201 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. 3. As Sukhu Munda was a juvenile in conflict with law, his case was segregated and tried before the Juvenile Justice Board. Charge was framed against the appellant under Section 302/34 and 201 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. 3. In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents to prove its case. The defence of the appellant was one of innocence and false implication. 4. In conclusion of trial the trial judge by judgment and order dated 16.01.2013 and 08.04.2013 convicted and sentenced the appellant, as aforesaid. 5. Mr. Partha Sarathi Bhattacharyya with Ms. Z. N. Khan, learned advocates for the appellant submits that there is no eye witness to the incident. The most vital circumstance that the appellant and Sukhu Munda were seen dragging the victim from her house to the place of occurrence where she was found murdered has not been proved. No witness deposed that the appellant had assaulted the victim even at her residence. Hence, the chain of circumstances pointing to the guilt of the appellant has not been established and he is entitled to an order of acquittal. 6. Ms. Sreyashee Biswas, learned Advocate appearing for the Sate submits that the requisite motive to commit the crime has been established. The appellant and Sukhu Munda entered the house of the victim searching for her son Bikash Ekka. As they could not found him, Sukhu assaulted the victim while appellant stood guard in the ground floor of the house. Thereafter, the victim was dragged from her house and murdered at drain no. 6 of Dalimkote division of the Tea estate. The chain of circumstances has been established beyond doubt and the appeal is liable to be dismissed. 7. Let me analyze the evidence on record in order to test the rival submissions made on behalf of the parties. 8. P.W. 1 Manu Munda, P.W. 2 Subhash Bhujal and P.W. 3 Kancha Chhetry are resident of Dalim Kote Tea estate. All of them deposed that they saw a quarrel between Sukhu and Rubi. Sukhu was beating Rubi in a room in the first floor. P.W. 1 deposed that he tried to intervene whereupon the appellant who was in the ground floor threatened them. All of them deposed that they saw a quarrel between Sukhu and Rubi. Sukhu was beating Rubi in a room in the first floor. P.W. 1 deposed that he tried to intervene whereupon the appellant who was in the ground floor threatened them. All the witnesses were declared hostile as they did not support the prosecution case that the appellant and Sukhu Munda had dragged the victim away from her house. 9. P.W. 4 deposed that the victim had been murdered. He heard that the appellant and Shako Uraon had dragged the victim from her house and her dead body was found at Section no. 6 of the Tea estate. He also deposed that there was a love affair between Bikash Ekka and Leo Munda, the sister of Sukhu Munda. Trouble arose due to such love affair. P.W. 5 has corroborated the evidence of P.W. 4. 10. P.W. 6 is a signatory to the inquest report. She deposed that the dead body of the victim was recovered from a drain in ward no. 6 of the tea estate. She further deposed that she had heard about the incident from P.W.1 Manu Munda. 11. P.W. 8 is the son of the victim and deposed that he had love affairs with Leo Munda. He deposed that Leo Munda committed suicide and as a result the accused persons became angry and murdered his mother. 12. P.W. 9 is the husband of the victim. He deposed that one Badru Uraon told him after he returned home that the appellant and Sukhu Munda murdered his wife. Badru Uraon has not been examined in the instant case. 13. P.W. 13 is the brother in-law of the victim and the informant in the instant case. He deposed that he heard that the appellant and Sukhu Munda assaulted the victim. He went to the house of the victim and did not find her. He proved the written complaint and also his signature marked as Exbt. 5 and 5/1. He signed on the inquest report. He heard from local people that appellant and Sukhu Munda had beaten the victim and dragged her body from her house. 14. P.W. 11 is the post mortem doctor who found injuries on the body of the victim and deposed that the death was due to shock and haemorrhage which were ante mortem in nature. He proved the post mortem report. 15. 14. P.W. 11 is the post mortem doctor who found injuries on the body of the victim and deposed that the death was due to shock and haemorrhage which were ante mortem in nature. He proved the post mortem report. 15. P.W.14, Ghanashyam Ray is a constable. He accompanied SI K. M. Khan to the spot. Inquest was held by the said officer on the body of the victim. The body was brought to the police station. He took the dead body to the hospital for post mortem examination. Doctor handed over the wearing apparels to him. I.O. seized the wearing apparels. He signed on the seizure list. 16. P.W.15, S.I. K. M. Khan is the investigating officer of the case. He went to the spot, prepared inquest on the dead body of the victim. He proved the inquest report (Ext.1). He sent the dead body for post mortem examination. He seized the wearing apparels of the victim under a seizure list. He also effected seizure from the residence of the victim (Ext.8). He recorded statements of the witnesses, prepared one rough sketch map. He submitted charge sheet. 17. From the evidence on record, it appears that the victim was found murdered in a drain in section 6 of Dalimkote T.E. P.W.11, the post mortem doctor found the number of injuries on the head and body of the victim. He deposed that the victim suffered death to shock and haemorrhage from such ante-mortem injuries. Hence, one can safely conclude that the victim suffered homicidal death due to injuries as noted by P.M. doctor at the drain in section 6 of Dalimkote Division of the Tea Estate. There is no direct evidence as to who assaulted the victim at the spot. There is, however, evidence on record coming from the mouths of hostile witnesses, namely, P.W.1, 2 & 3 that on hearing hue and cry they went to the residence of the victim and found the victim was being assaulted by the co-accused Suku Munda in the first floor and the appellant was standing in the second floor. Appellant had threatened the witnesses at that time. However, the said hostile witnesses did not support the prosecution case that they had seen the appellant and co-accused Sukhu Munda dragging away the victim from her house. Appellant had threatened the witnesses at that time. However, the said hostile witnesses did not support the prosecution case that they had seen the appellant and co-accused Sukhu Munda dragging away the victim from her house. Although there is some evidence of quarrel and assault between the Suku Munda and the victim at her residence, there is no evidence on record to show that the appellant had assisted Sukhu Munda to drag the victim from her house to the spot where she was found murdered. 18. Learned counsel appearing on behalf of the State has argued that there was enmity between the parties over the suicide committed by one Leo Munda, sister of the appellant and co-accused who had been impregnated by the son of the victim, Rubi Ekka. Being enraged the appellant and Suku Munda assaulted the victim at her residence and dragged her away to the spot and murdered her. 19. The case is based on circumstantial evidence. The most vital circumstances connecting the appellant with the alleged offence is that the appellant and Suku Munda had dragged the victim from her residence to the spot i.e. a drain in section 6 of Dalimkote T.E. where she was murdered. In the absence of legally admissible evidence with regard to the dragging of the victim to the place of occurrence by the appellant and Suku Munda, I find it difficult to rely on the sole evidence relating to motive for commission of crime and the skirmish between co-accused Suku Munda and the victim at her residence to come to a firm conclusion that the appellant had assisted Suku Munda to commit the murder of the victim. In a case based on circumstantial evidence, it is trite law that all the circumstance must be established beyond doubt and the said circumstances must unerringly point to the guilt of the accused. As discussed earlier, the most vital circumstance, namely, dragging of the victim from her residence to the spot where she had been murdered has not been established. One of the links in the chain of circumstances has snapped and the nearness of the appellant to the victim when she was found death has not proved beyond reasonable doubt. As discussed earlier, the most vital circumstance, namely, dragging of the victim from her residence to the spot where she had been murdered has not been established. One of the links in the chain of circumstances has snapped and the nearness of the appellant to the victim when she was found death has not proved beyond reasonable doubt. As the circumstance that the appellant had dragged the victim to the spot where she had been murdered has not been proved, there is no question of attracting the reverse burden under section 106 of the Evidence Act to conclude that it is the appellant who had murdered the victim as he had failed to explain the circumstances in which the victim had suffered injuries resulting in her death. None of the witnesses who spoke of the quarrel and assault by Suku Munda at the residence of the victim had deposed that the victim had suffered any injuries due to such assault. Hence, I find it difficult to connect the appellant with the injuries suffered by the victim at the place of occurrence i.e. near the drain in section 6 of Dalimkote T.E. which resulted in her homicidal death. 20. In the light of the aforesaid discussion, I am of the opinion that the appellant is entitled to the benefit of doubt. 21. Accordingly, I set aside the conviction and sentence imposed on the appellant. Appeal is allowed. 22. Appellant shall be forthwith released from custody if he is not wanted in any other cases upon executing a bond to the satisfaction of learned CJM, South 24 Parganas for a period of six months in terms of section 437A Cr.P.C. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 23. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. 24. I agree.