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2019 DIGILAW 922 (CAL)

Anil Kar v. State of West Bengal

2019-11-08

ARIJIT BANERJEE, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : Arijit Banerjee, J. 1. In this appeal the appellant/accused has challenged the judgment and order of conviction dated 30/08/05 and 31/08/2005 passed by the learned Additional Sessions Judge, 5th Court, Paschim Medinipur, in Sessions Trial Case No. V of October, 2003. By the said order the appellant was convicted for commission of offence under Sections 302 and 201 of the Indian Penal Code, 1860 (in short, "IPC"). The learned Trial Judge sentenced the accused to suffer rigorous imprisonment for life with a fine of Rs. 2000/-, in default to suffer further rigorous imprisonment for one year for commission of offence under Section 302 IPC. The accused was also sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, in default to suffer further rigorous imprisonment for six months for commission of offence under Section 201 IPC. The learned Trial Judge ordered that the sentences shall run concurrently. 2. Bereft of unnecessary details the prosecution case, as it appears from the records, runs as follows. The accused Anil Kar married the deceased Asha Kar about 17 years ago. They lived together as husband and wife for a period of about 3 years. Out of the marriage Asha gave birth to a male child. Soon thereafter the marriage came to an end due to persistent altercations over domestic affairs. Thereafter, Asha met one Bharat Khatua of Balichak whom she subsequently married. For the last 13 years she had been living peacefully with her second husband. On 25.01.03, at about 5.30 P.M., the accused went to the house of Bharat, stated that Asha's mother was critically ill and on that pretext he took her away, ostensibly to Asha's parental house. When Asha did not return even after 3 days, on 28.01.03, Bharat went to Asha's parental house to look for her. Bharat was informed that Asha had not visited her parental home and that Asha's mother was not ill. Thereafter, Bharat along with the first informant Subal Das (victim's brother and PW16) and Sambhu Das (another brother of victim and PW10) went to the house of the accused located at village, Sangar and enquired about Asha. Initially, the accused refused to say anything. Subsequently, Panchayat members namely, Gautam Singh (PW1), Niranjan Dey (PW2), Chandi Charan Dey (PW3) and Laxman Dey (PW17) were informed about Asha's missing status. Initially, the accused refused to say anything. Subsequently, Panchayat members namely, Gautam Singh (PW1), Niranjan Dey (PW2), Chandi Charan Dey (PW3) and Laxman Dey (PW17) were informed about Asha's missing status. Once these persons along with Bharat, Subal and Sambhu confronted the accused, he confessed that on 25/01/2003 he took Asha to Egaramile by a trekker and then she was taken to a plot of land belonging to Gopal Kar of village Sangar, where she was throttled to death by him. Then the accused removed the clothes of the victim, burnt them, threw the dead body of Asha inside a shallow pit and covered the pit with mud. On the basis of information derived from the accused the dead body of the victim was recovered on 30/01/2003. 3. The accused was charged with commission of offence under Sections 302 and 201 IPC. He pleaded not 'guilty' and claimed to be tried. Thus, the trial began. 4. The prosecution examined 21 witnesses to prove its case. The defence examined none. The accused was examined under Section 313 of Cr.P.C. The defence case was one of bare denial. 5. Let us now refer to the depositions of some of the key witnesses. 6. PW 1 Goutam Singh has stated that on 28.01.03 Bharat Chandra Katua (PW 9) went to the house of Subal Chandra Das (PW 16). Then they went to the house of the accused who did not disclose anything to them. Then they came to his house. At that material point of time his neighbours Lakshman Dey (PW 17), Niranjan Dey (PW 2) and Lakshmi Kanta Singh (PW4) were also present. Thereafter he along with his neighbours went to the house of the accused at about 8:00 p.m. on 28.01.03. Upon enquiry the accused confessed his crime. The accused and Asha went to Balichak and thereafter they boarded the bus on the route of Patashpur - Midnapore and they got down at Bus Stop Egaramile. From there the accused and the victim proceeded to the place of occurrence (P.O) where the accused killed the victim. According to his statement when the accused confessed his crime before the police they were present. It was in view of the confession that the police recovered cash money of Rs. From there the accused and the victim proceeded to the place of occurrence (P.O) where the accused killed the victim. According to his statement when the accused confessed his crime before the police they were present. It was in view of the confession that the police recovered cash money of Rs. 300, gold churis (bangles), one gold ring, one gold chain and ear tuff which was kept concealed in the thatched roof of the house of the accused. He identified his signature on the two seizure lists. He stated that he saw the right/left eyebrow of the accused injured. Whether it was left or right this he could not confirm. He also saw red impression around his neck. He also identified his signature on the inquest report. 7. PW 2 Niranjan Dey is a neighbour of the accused. According to him Shambhu Das, Subal Das - both brothers of the victim along with Bharat the second husband of the victim had been to his village on 28.1.03. Gautam Singh, Chandi Dey and Tapas Guha were with him. It was Subal who informed him about the incident which we have already narrated above. Thereafter he along with Lakshman, Chandi, Subal, Shambhu and Bharat confronted the accused regarding the whereabouts of the victim Asha. He confessed his crime before them. The next day the police brought the accused to his house. The accused pointed out the place where he had hidden money and gold of the victim. Like PW 1 he too had seen injury marks on the body of the accused. He also signed the inquest report. 8. PW 4 Laxmikanta Singh stated in his deposition that Goutam Singh, Niranjan Dey and Lakshman Dey were gossiping at the market of Sangar. Then Subal Das, Shambhu Das and an old man met them. They had been to the house of the accused. It was Subal who informed him about the incident. When he was proceeding to the house of the accused Gautam Singh, Niranjan Dey and Lakshman Dey informed him about the murder. This witness signed on the inquest report and has identified the same. He has also signed on the seizure list. 9. PW 5 Tapas Guha is another neighbour of the accused. When he was proceeding to the house of the accused Gautam Singh, Niranjan Dey and Lakshman Dey informed him about the murder. This witness signed on the inquest report and has identified the same. He has also signed on the seizure list. 9. PW 5 Tapas Guha is another neighbour of the accused. He was outside the house of the accused when the police seized the materials namely one pair of ear tuffs, one ring, Golden churis 3 pieces, 2 bangles and steel bangle fitted with gold plate as well as cash money of Rs. 300/-. He has identified the materials that Police had seized. According to him Niranjan, Chandi and Gautam also signed the seizure list. 10. PW6 is the owner of a cycle repairing shop at Egaramile bazaar. He was declared hostile. In cross-examination by the prosecution, he denied having told the police that on 25 January, 2003 in the evening one Anil Kar of village Sangar went to his cycle repairing shop at Egaramile and that one woman was with him and that from local whispering he came to learn that the lady was the first wife of Anil Kar and that on completion of pumping of cycle tube, Anil went towards Sangar village along the moram road with that woman. 11. PW 9 Bharat Chandra Katua is the second husband of the victim. He has stated in his deposition that on 25.01.03 at 5:00 - 5:30 p.m., the accused had visited his house. He told them that the victim's mother was seriously ill and on that pretext he took the victim away. 3 days later on 28.01.03 at around 11:00 a.m. Bharat went to the house of his father in law. His brother in law Shambhu (PW 10) informed him that all was well. Thereafter he along with Shambhu and Subal went to the house of the accused. When they questioned the accused regarding the whereabouts of the victim he got furious. Then they went to the house of a local politician, one Gautam Babu. After all of them went to the house of the accused he confessed his crime. He identified the body of the victim at P.O as well as her gold ornaments in the Court. According to the defence, this witness has made a vital self-contradictory statement which appears at page 49 of the paper book. It was a statement that from 20. He identified the body of the victim at P.O as well as her gold ornaments in the Court. According to the defence, this witness has made a vital self-contradictory statement which appears at page 49 of the paper book. It was a statement that from 20. 01. 03 to 27. 01. 03 he stayed at his residence at Ambigeria or Deborah market at his paternal house at Damodarpur. 12. PW 10 Shambhu Nath Das is the brother of the victim. According to him, Bharat came to his house at 11:00 a.m. on 28.1.03. He enquired regarding the whereabouts of Asha. Then he along with Subal and Bharat went to the house of the accused. When they questioned the accused about the victim he was about to assault them. Then they went to Gautam Singh and finally these three people along with Gautam arrived at the house of the accused and there the accused confessed his crime. He has signed on the inquest report. He found injuries on the body of the victim. Her tongue was protruded, her left eyebrow was injured, he also found impression of throttling in the neck and red impression on the chest. According to him it was the accused who had produced the ornaments and money of victim before the police. They were also present there. He identified the seized materials. 13. PW 12 Soumi Biswas was the BDO who held inquest over the dead body of the victim and she has identified her signature on the inquest report. 14. PW 13 SK Abdul Based is another owner of a cycle garage located at Egaramile. It was his statement that on the day of the incident the accused had deposited his cycle in his garage and that in the evening he collected his cycle from the garage and proceeded towards the village Sangar. At that time one woman was also with him. He later found out that she was his ex-wife. But this witness too turned hostile. 15. PW 16 Subal Chandra Das is the brother of the victim. According to him on 25.01.03 his brother-in-law Bharat came to his house. Thereafter he, Shambhu and Bharat and some Panchayat members namely Niranjan, Chandi Charan and Gautam went to the house of the accused and confronted him. It was then that the accused confessed his crime before them. 15. PW 16 Subal Chandra Das is the brother of the victim. According to him on 25.01.03 his brother-in-law Bharat came to his house. Thereafter he, Shambhu and Bharat and some Panchayat members namely Niranjan, Chandi Charan and Gautam went to the house of the accused and confronted him. It was then that the accused confessed his crime before them. He has further stated that he signed on the seizure list and has identified his signature. It was his statement that the accused said to him that the victim had bitten him. He also stated that he saw several injury marks on the body of the victim. He also had shown the police a spade. It was he who had lodged the complaint with the police. According to him the accused had made confessional statements before the police in their presence. 16. PW18, Dr. Nalini Kumar Burman is the doctor who conducted medical examination of the accused. His statement is of vital significance. According to him on 29.01.03 he had examined the accused and he found multiple small abrasions stadded on his right thumb, left index and middle fingers. He has identified his signature on the medical report, which is inter alia to the following effect: "I found multiple small abrasions stadded on the right thumb, left index and middle fingers made by teeth bite of his wife when he made attempt to kill her, as stated by the patient (Anil Kar)." 17. PW 20 Dr. Laxmi Kanta Ghosh was the Medical Superintendent and Vice-Principal, Medinipur Medical College. It was he who had conducted post-mortem on the body of the victim. His report dated 4.02.2003 which he proved in evidence, was to the following effect: "I found medium built body of a female subject with decomposition all over body. Scalp hair fallen off, evidence of missing of soft tissues partly from scalp, both eyes, both nose, both ear, both sides of face and perineum due to voracious eating by maggots present over the body, evidence of hardening and stiffening of the body surface as well as neck surface due to adepocere formation partly and irregular on the surface level forming yellowish blackish colour of the body surface. I could not detect any external injury after careful examination. On dissection I detected haematoma over soft tissues of neck particularly over sterno mastoid muscles of both sides of neck. I could not detect any external injury after careful examination. On dissection I detected haematoma over soft tissues of neck particularly over sterno mastoid muscles of both sides of neck. I also detected haematoma over soft tissues of anterior chest wall over sternal area and adjoining areas of either side of chest wall. I found communuted fracture over body of sternum at 4th segment. I also found left mid-clavicular level. There was also communuted fracture over ribs nos. 1 to 10 of right mid-clavicular line. There was haematoma on the posterior surface of both lungs. I detected free fluid blood in both sides of throasic cavity. According to my opinion, death was effect of strangulation in a sequel of thoracic polytrauma, ante-mortem and homicidal in nature." 18. PW 21 Biswajit Biswas was the S.I of the Pingla police station. It was he who examined Goutam Singh and Tapan Das. He also held inquest over the body of the victim. He had prepared the sketch map and seized articles which included bamboo and some earth. He also arrested the accused. It is his deposition that the accused had marks on his body. According to him, "I found teeth bite injury on his right thumb, left index and middle finger." Later he recovered gold and money from the house of the accused. A spade was also recovered from the accused, though it was not sent to Forensic Science Laboratory for examination. He also examined Chandi, Bharat and Subal as well as Debu Samanta. In his cross-examination he admitted that he did not examine any neighbour of Bharat Katua. He did not seize the bicycle that the accused is said to have used. 19. The learned Trial Judge has relied upon the following circumstances to uphold the guilt of the accused namely: 1. Accused taking Asha from the house of Bharat on the plea of illness of her mother. 2. Accused's expression of ignorance about whereabouts of Asha to PWs 1, 2, 10 and 16 when they had been to his house to enquire about Asha and later his confession of crime before them. 3. Recovery of the dead body of Asha from the shallow pit on the basis of information derived from the accused. 4. Accused last seen going to the P.O on a bicycle with the victim. 5. Recovery of victim's ornaments from the house of the accused. 6. 3. Recovery of the dead body of Asha from the shallow pit on the basis of information derived from the accused. 4. Accused last seen going to the P.O on a bicycle with the victim. 5. Recovery of victim's ornaments from the house of the accused. 6. Injuries sustained by the accused as deposed by the doctor examining him as well as by other witnesses who had been to the P.O. 20. The entire case of the prosecution is based on circumstantial evidence. There is no eye-witness. In a recent decision in the case of Devi Lal -vs.- State of Maharashtra, 2019 SCC OnLine SC 39, the Hon'ble Apex Court has reiterated the law relating to circumstantial evidence. Relying on its earlier judgment in the case of Sada -vs- State of Maharashtra, 1984(4) SCC 116 , the Supreme Court, at paragraph 153 of the judgment observed as follows: "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: 1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [ (1973) 2 SCC 793 where the observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, 3. the circumstances should be of a conclusive nature and tendency, 4. they should exclude every possible hypothesis except the one to be proved, and 5. the circumstances should be of a conclusive nature and tendency, 4. they should exclude every possible hypothesis except the one to be proved, and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 21. Even if this Court discards the vital testimony of the second husband of the victim, i.e., Bharat Katua, there is no doubt in our mind that it was the accused who had taken the victim from her house to the place of occurrence. Two witnesses namely PW 6 and PW13, the owners of bicycle repairing shops have stated in their retracted statements that on 25.01.03 they had seen the accused going towards the place of occurrence with a woman. We have already discussed their depositions hereinbefore. The law on hostile witnesses has been well settled by the Hon'ble Apex Court in Bhajju v. State of M.P., (2012) 4 SCC 327 . The Court was categorical in stating that evidence of witnesses turning hostile can be relied upon to the extent it supports the case of the prosecution. When these statements are linked together the only reasonable inference that can be drawn is that it was the accused who took the victim to the place of occurrence. 22. Another piece of evidence that squarely goes against the case of the defence is the recovery of the body of the victim from the P.O. This was on the basis of the extra-judicial confession made by the accused himself. We may not be inclined to rely on the same, but we cannot overlook the fact that based on the confession the police recovered not just the body of the victim but also her ornaments. The same has been proved. PW 9 Bharat Katua, the second husband of the victim, has recognized the ornaments. We may not be inclined to rely on the same, but we cannot overlook the fact that based on the confession the police recovered not just the body of the victim but also her ornaments. The same has been proved. PW 9 Bharat Katua, the second husband of the victim, has recognized the ornaments. The seized materials are admissible under section 27 of the Evidence Act which states as follows: "How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 23. This section is founded on the principle that if the confession of the accused is supported by the discovery of a fact, the same may be admissible under the law. In the present case not just the body but also the ornaments of the victim were discovered. There is no infirmity on this score. We are also satisfied that the requisite provisions of Section 100(4) of Code of Criminal Procedure, 1974 have been complied with. 24. Further the accused was categorically confronted under section 313 of Code of Criminal Procedure as it appears from pp. 105 of the paper book regarding the recovery of the ornaments and all he had to say was, "Do not know anything." 25. In this connection, we may note section 106 of Indian Evidence Act, 1872 which states as follows: "106. Burden of proving fact especially within knowledge--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 26. Upon a reading of the statute it is clear that when any fact is within the knowledge of any person, the burden of proving the same is upon him and him only. An adverse inference may be drawn when he is asked about it and he refuses to answer. The accused could not explain as to how he came in possession of ornaments of the victim. 27. Further, the evidence of the autopsy doctor which has been quoted extensively shows that death was the effect of strangulation in a sequel of thoracic polytrauma, ante-mortem and homicidal in nature. 28. The accused could not explain as to how he came in possession of ornaments of the victim. 27. Further, the evidence of the autopsy doctor which has been quoted extensively shows that death was the effect of strangulation in a sequel of thoracic polytrauma, ante-mortem and homicidal in nature. 28. We have noted above that PW18 the doctor who examined the accused has deposed that the accused told him that the injuries to the fingers of his right hand were caused by the victim's teeth bite when the accused attempted to kill the victim. PW18 is a disinterested witness. Although, this may be an extra judicial confession, other corroborative evidence present in this case makes such confession highly reliable. We have no reason to disbelieve PW18. 29. Upon an overall consideration of the evidence discussed above we are satisfied that the facts and circumstances of the case lead to only one inference and that is of guilt of the accused. 30. There is nothing on record that would persuade us to reverse or alter the impugned judgment and order. 31. The order of conviction and the sentence do not call for any interference. The appeal is dismissed. However, upon the accused serving out the period of 14 years, if an appropriate application is made for remission, the same shall be considered by the statutory authority in accordance with law and will be disposed of as expeditiously as may be convenient. 32. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities. I agree.