Calcutta High Court
Surodhani Roy @ Sumitra Roy vs State Of West Bengal on 29 April, 2004
Equivalent citations: 2004(4)CHN205
JUDGMENT G.C. De, J.
1. This jail appeal was filed by the convict Surodhani Roy @ Sumitra Roy through Superintendent of Berhampore Central Jail, District Murshidabad challenging the judgement and order of conviction dated 17.5.96 and the sentence passed on 21.5.96 in Sessions Case No. 4/95 (S.T. No. 8/95) by the learned Sessions Judge, Jalpaiguri. By the said judgement the accused Surodhani Roy @ Sumitra Roy was found guilty of the offence under Section 302/201/381 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 3,000/- i.d. to suffer R.I. for one year under Section 302 of the Indian Penal Code. She was also convicted under Section 201 of the Indian Penal Code and was sentenced to suffer R.I. for two years and to pay a fine of Rs. 500/- i.d. to suffer R.I. for two months. She was further convicted under Section 381 of the Indian Penal Code for which she was sentenced to suffer R.I. for two years and a fine of Rs. 500/- i.d. to suffer R. I. for two months. All the above sentences were directed to run concurrently.
2. Accused Giribala Roy was also found guilty of the offence punishable under Section 411 of the Indian Penal Code and she was convicted thereunder and sentenced to suffer R.L for one year. Direction under Section 428 of the Criminal Procedure Code was also there for setting off the period of detention, undergone in course of the trial, with the substantive imprisonment.
3. Another accused Sri Moni Roy was, however, found not guilty to the charge under Section 411 of the Indian Penal Code and he was acquitted. Be it mentioned here that acquittal of Moni Roy has not been challenged.
4. Prosecution case in brief is that one Surodhani Roy @ Sumitra Roy was appointed as wholetime maidservant to look after Parul Bala, the old mother of Animesh Dutta Roy (PW. 2). The family of Animesh consisted of his wife Molina (PW. 6), the teen aged daughter Sruti (PW. 7) and Parul Bala (victim). On 29.12.92 at about 11.45 a.m. Animesh, Molina and Sruti went out for outing keeping Parul Bala under the care and custody of the maid servant Surodhani. The brother-in-law of Animesh Mr. Adhir Kumar Nag (PW. 11) came to the house at 3.30 p.m. and found that doors were open and Parul Bala lying on her back with burn injuries from her knees upto her waist and clot of blood on the right side of her forehead. The gas oven near the deadbody of Parul Bala was found with one of the burners in burning condition. Adhir (PW. 11) accordingly called a neighbour Sunil Das (PW. 8) who came and put out one of the burners. Thereafter they raised hue and cry when people assembled. The neighbour Chitta Choudhury (PW. 10) informed the police and one A.S.I. N. C. Das (PW. 1) of Kotwali P.S. came to the spot at about 4 p.m. Animesh and his family members returned back at about 6 p.m. on getting information.
5. In the spot it was found that the deadbody was lying in the covered verandah of the house of Animesh which was used as kitchen and the gas oven was resting on the small table, one Aluminium kettle with some water was found placed on the left side burner of the oven and in between two burners a dekchi with some unboiled rice and water was placed. A piece of cloth was found rolled up and pressed into the right side burner of the gas and it was noticed that the said piece of cloth in burnt condition was found connecting the dead body. A cut mark injury with blood clot on the upper side of the left eyebrow of the deceased was found. Two steel almirah was found open and the articles inside the room were found in scattered condition. It was also detected that different articles including one gold neck chain which the deceased used to wear constantly, one Titan wrist watch, one two band Tiger transistor, clothes, family photographs and cash money were found stolen. Surodhani was found missing from the house. It was ascertained that Surodhani was found going away by rickshaw carrying one bag between 3 and 3.30 p.m.
6. PW. 1 started U.D. Case No. 334 of 1992 dated 25.12.92 and after necessary enquiries he wrote a complaint (Ext. 3) which was sent to the Officer-in-Charge of Kotwali P.S., Jalpaiguri on the same date which was treated as FIR and Kotwali P.S. Case No. 501/92 dated 29.12.92 was started under Section 302/201/381 of IPC (Ext. 4). The particulars of the missing articles were handed over to the police in the same night (Ext. 6).
7. In course of investigation one half-sleeved 'T' shirt and one Medi Frock, stained with blood, were seized on 29.12.92 in presence of witnesses from the courtyard of the house of Animesh (Ext. 5). Police also searched on 30.12.92 the house of Giribala Roy, the mother of the accused Surodhani and different stolen articles were recovered and seized in presence of witnesses on the basis of seizure list (Ext. 12).
8. Meanwhile police prepared a sketch map of the locals and also sent the deadbody for post-mortem examination. Accused Surodhani was arrested on 1.1.93 and she made a statement before police on the basis of which grinding stone was recovered from the house of Animesh under a seizure list in presence of witnesses. Surodhani was also produced before the SDJM on 2.1.93 with a prayer for recording her confessional statement. She was sent to the Jail Custody for reflection and actually her confession was recorded by the Judicial Magistrate, 2nd Court (PW. 5) on 4.1.93. After closing of investigation police submitted a chargesheet against Surodhani, her mother Giribala and Moni Roy from whom a few family photographs of Animesh and cash of Rs. 600/-were recovered.
9. The seized blood-stained wearing apparel and grinding stone along with sample of blood collected after post-mortem examination were sent for serological test. On receipt of the report from the serologist and after collecting post-mortem report, chargesheet was submitted against Surodhani, Giribala and Moni Roy. The case was committed to the Court of Sessions on 13.1.95, Charges under Section 381/302/201 IPC were framed against accused Surodhani @ Sumitra Roy. Separate charge under Section 411 of the IPC were framed against Giribala Roy and Moni Roy. All the three accused pleaded not guilty of the charge and accordingly prosecution examined twenty-seven witnesses to prove the charge levelled against all the accused persons.
10. Be it mentioned here that no defence witness was examined and the defence case as can be ascertained from the suggestion given to PWs. in course of cross-examination and also from the answers given by the accused persons in course of their examination under Section 313 Cr. PC is complete innocence. It is claimed by the accused Surodhani Roy that she was allowed three days leave by her employer Animesh for which she left the house of Animesh in the early morning of 29.12.92. Accused Giribala Roy, however, claimed that recovery of the alleged articles was not done in her presence and that she was arrested from the field where she was grazing cattle and from that field she was taken to the police station. Accused Moni Roy of course pleaded absolute innocence about the alleged incident. On the basis of the evidence on record the learned Sessions Judge found the accused Surodhani Roy guilty of the charges levelled against her and convicted and sentenced her in the manner indicated hereinabove. Similarly the accused Giribala Roy was found guilty under Section 411 of IPC and she was also convicted and sentenced in the manner indicated hereinabove.
11. The learned Sessions Judge, however, found no material against accused Moni Roy for which he was found guilty of the charge under Section 411 of the IPC and accordingly he was acquitted.
12. In course of hearing of this appeal Mr. Partha Sarathi Bhattacharyya, learned Counsel appearing on behalf of the appellant Surodhani Roy scanning the evidence on record pointed out that there is no material to justify the conviction of accused Surodhani under Section 302 IPC. Mr. Bhattacharyya clarified that there was no evidence as regards the murder of the victim at the hand of Surodhani and there are noticeable gaps in the circumstantial evidence for which doubt has to be expressed as regards the actual murder at the hand of accused Surodhani.
13. Mr. Bhattacharyya also pointed out that the alleged recovery of the grinding stone at the instance of the accused Surodhani is not to be relied upon inasmuch as there is nothing on record to show or indicate that the said recovery was on the basis of the statement made by accused Surodhani within the meaning of Section 27 of the Indian Evidence Act. Mr. Bhattacharyya further contended that confessional statement as recorded by the learned Magistrate (PW. 5) cannot be construed to be voluntarily made inasmuch as all the requirement of Section 164 of the Code were not taken care of. In this context he placed reliance in the decision of Devendra Prasad Tiwari v. State of Uttar Pradesh, , Chandran v. State of Madras, , Shivappa v. State of Karnataka, reported in 1995 Supreme Court Cases (Cri) 323, Tulsi Singh v. State of Punjab, , Preetam v. State of Madhya Pradesh, reported in AIR 1996 SC W 3829. Mr. Bhattacharyya also placed reliance on a Division Bench judgement of this Court in State v. Prasenjit Tapadar and Anr., reported in 1991 C Cr LR (Cal) 121 and also in an unreported decision of another Division Bench of this Court in which one of us (G. C. De, J.) was a party in Criminal Appeal No. 144 of 1996, Raghunath De v. State, decided on 20.8.2003.
14. Mr. Bhattaeharyya also pointed out different contradictions in the evidence of the witnesses only to augment his argument that the circumstantial evidence on the basis of which the conviction rested is practically illusive and accordingly no reliance can be placed on the evidence adduced by these witnesses. So Mr. Bhattacharyya made a forcible argument for acquittal of the convict Surodhani in respect of the charge under Section 302 of IPC.
15. Mr. Bhattacharyya also tried to argue that the evidence on record or the circumstances are not sufficient to justify the conviction of the accused Surodhani under Section 201 as well as under Section 381 of IPC. Mr. Bhattacharyya accordingly concluded his argument praying for acquittal of the accused Surodhani after setting aside the order of conviction and sentence.
16. Mr. Sasanka Ghose, learned Counsel appearing on behalf of the State, however, supported the judgment of the Trial Court by pointing out that the circumstances collected in course of the evidence were appropriately as well as aptly taken care of by the Trial Court and as such, there cannot be any other conclusion rather than confirmation of the conviction and sentence imposed upon the convict Surodhani Roy.
17. Mr. Ghose also placed reliance in the case of Kehar Singh v. State (Delhi Administration), , in support of his contention that when the learned Magistrate (PW. 5) accepted the positive evidence analysing the confession of Surodhani as voluntary, there cannot be any doubt as regards the confession made voluntarily by the convict Surodhani Roy.
18. Mr. Ghose also argued that all the circumstances analysed by the Trial Court lead to the irresistable conclusion that accused Surodhani was rightly found guilty of the charges levelled against her.
At the very outset it is to be pointed out that the conviction of Giribala Roy under Section 411 of the IPC was never challenged before any higher forum and term of her substantial sentence of one year expired long ago. It is also indicated hereinbefore that acquittal of Moni Roy from the charge under Section 411 of IPC was also not challenged by prosecution and as such, that order also reached its finality.
19. Now let us consider how far the charge under Section 302 of IPC has been established by the prosecution against accused Surodhani. Amongst twenty-seven witnesses examined by prosecution in this case, it is to be noted that the case was started on the basis of a written complaint filed by PW. 1 A. S. I. Narayan Chandra Das who on getting information about the unnatural death of an old lady visited the house of Animesh Dutta Roy, started a U. D. case, held inquest on the dead body, made preliminary investigation required under Section 174 of Cr. PC and thereafter being satisfied that a crime was committed under Section 302 IPC and also there were materials to justify the starting of a case under Section 201 as well as under Section 381 of IPC lodged a complaint and sent the same to the police station on the basis of which a formal FIR was drawn and direction was given for investigation of the case.
20. Mr. Bhattacharyya tried to point out that there are certain infirmities as regards collection of materials at the spot at the hand of PW. 1. But it is to be noted that PW. 1 visited the spot for investigation of an unnatural death under Section 174 Cr. PC and as such, infirmities cannot be construed to be very vital and prejudicial to the interest of the accused. The evidence of PW. 1 simply indicates that he noticed a dead body in a burnt condition along with bleeding injuries on the forehead near the eyebrow.
21. The next vital evidence in this case is the post-mortem report which was proved by the autopsy surgeon Dr. R. C. Sahoo (PW. 18). PW. 18 noticed the following injuries in the person of Parul Bala i.e. the victim :
(1) Deep burn of whole abdomen, lower portion of chest, both arms, forearms and hands, face anteriorly and both thighs upto knee joints and upper portion of back;
(2) Lacerated wound of 1 1/2" x 1/4" x bone deep with fracture of left frontal bone;
(3) Haematoma of mid-chest of 2 1/2" diameter with fracture of sternum in the middle;
(4) Fracture of right 3rd rib at costochondrial junction and left 4th rib in the mid-clavicular line. There was blood clot in and around the wounds which resisted washing.
PW. 18 also detected 25 gms of clotted blood on opening brain cavity. He did not notice soot in larynx and trachoea. PW. 18 also found indigested rice inside stomach without any peculiar smell or blood or soot.
PW. 18 clarified as follows :
"The absence of soots in the larynx, trachoea and the stomach contents shows that the burn is post-mortem or in other words, in my opinion, the death was actually not due to the burn but due to the injuries referred to above.
Injury No. 2 i.e. the lacerated wound on the left frontal bone indicates injury on or above the left eyebrow. Injury Nos. 2 to 3 was individually sufficient in the ordinary course of nature to cause death.
Injury Nos. 2, 3 or 4 could be caused by hard and blunt substance. It could be caused by hard and blunt substance like this grinding stone (Mat Ext. XVIII).
The injuries abovementioned individually or jointly was/were sufficient in the ordinary course of nature to cause the death of the woman.
The presence of undigested food in the stomach shows that the death was caused after she had taken some rice".
22. So from the evidence of the Autopsy Surgeon (PW. 18) and the postmortem report it is sufficiently clear that the victim had taken her meal which included rice before her death as can be ascertained from undigested rice found in her stomach. It is also proved that the burnt injuries on the body of the victim were inflicted after her death for which larynx, trachoea did not contain any soot. It is also established that those burnt injuries were post-mortem after homicidal death of the victim. It is also clarified that fracture of the left frontal bone with fracture of sternum in the middle and fracture of right 3rd rib at costochondrial junction and left 4th rib in the mid-clavicular was the actual cause of death of the victim. So we rule out the possibility of natural or accidental death of the victim. Moreover, the nature of the injuries inflicted due to alleged burnt injuries also rule out the possibility of any suicidal or accidental death. So the only irresistable conclusion is in favour of homicidal death of the victim Parul Bala.
23. Minor burnt injuries appearing in abdomen, lower portion of chest, both arms, forearms and hands, face anteriorly and both thighs upto knee joints and upper portion of back along with materials collected in course of investigation are sufficient to indicate that all out efforts were made for causing disappearance of evidence of such homicide mainly with the purpose of screening the offender. In fact the burning of the right side burner of the gas oven as noticed by PW. 10 and PW. 11 who arrived at the place of occurrence for the first time, and the interlinking of a burnt piece of cloth with the burner of the stove were made for the purpose of giving it a look of accidental death. It is also to be noted that one aluminium kettle half-filled with water and a medium size dekchi with some rice and water kept in between the burners were purposedly done to introduce a story that the lady for the purpose of cooking rice got herself burnt. It is already pointed out that she had taken rice before her death and as such, there was no reason to keep a dekchi for the purpose of preparing the boiled rice.
24. It is also to be noticed from the evidence of the PW. 10 and PW. 11 that they came to the place of occurrence by 3.30 p.m. on 29.12.92 and found one of the burner of the gas oven in burning condition. It is sufficient to indicate that attempt to cause disappearance of the evidence of murder was made at least before 3.30 p.m. It also to be noted from the evidence of PW. 10 Chitta Choudhury, an adjacent neighbour and PW. 11 Adhir Nag who is brother-in-law of Animesh that they did not notice the presence of the accused Surodhani Roy in the house of Animesh when they arrived.
25. It appears from the evidence of Animesh PW. 2, his wife (PW. 6) and their daughter Sruti (PW. 7) that Surodhani was appointed as a whole-time maid-servant to look after the aged Parul Bala. It is also ascertained from their evidence that Surodhani was brought in the house of Animesh by one Bairagi (PW. 15) on 13.11.92. So it is sufficiently established, as is also admitted by the accused Surodhani, that she was appointed as a full time maid-servant in the house of Animesh. The evidence of PW. 2, PW. 6 and PW. 10 is sufficient to establish that on 29.12.92 before going out for outing Surodhani was kept in the house with a direction to look after the victim Parul Bala and not to open the main door of the house and to contact PW. 10 in case of any difficulty. So the evidence on record is sufficient to indicate that after departure of Animesh with his wife and daughter Surodhani was in the house. It is already indicated above from the scanning of evidence of PW. 1, PW. 16 and PW. 17 that at about 3.30 p.m. Surodhani was found absent in the house.
26. From the evidence of I.0. PW. 24 it appears that the Investigating Officer went to the house of Giribala Roy in search of Surodhani at Padamatichar where she was not found and on 1.1.93 Surodhani was arrested. From the order-sheet of the learned Judicial Magistrate it appears that Surodhani was produced before the learned Magistrate on 2.1.93 and at that time prayer was made by the Investigating Officer for recording her statement under Section 164 Cr. PC. On that date the learned Magistrate sent her to judicial custody for reflection and on 4.1.93 the confessional statement of Surodhani was recorded by the learned Magistrate (PW. 5). In the statement under Section 161 Cr. PC the accused Surodhani claimed that she along with Sumitra Das killed Parul Bala and thereafter she (Surodhani) took away all the articles for Padamatichar residence. Sumitra Das (PW. 16) claimed that she was called by Surodhani at 2 p.m. but Sumitra did not respond and again at 3.30 p.m. Sumitra saw Surodhani going away in a rickshaw through Race Course Road. Sumitra in her evidence further clarified the fact of seeing Surodhani at 2 p.m. and 3.30 p.m.
27. PW. 17 Debasis Pal, a trainee constable, however claimed that he saw Surodhani near the gate of the house of Animesh at about 2 p.m. So this evidence of PW. 17 is construed to be corroboration of the evidence of Sumitra Das (PW. 16) on the point of availability of Surodhani in the house of Animesh at 2 p.m. there is however no corroboration to the claim of Sumitra Das that she saw Surodhani going by a rickshaw with a bag in her hand at 3.30 p.m. It is also to be noted that PW. 1 though claimed that few of the witnesses disclosed before him as regards going away of Surodhani by a rickshaw at 3.30 p.m. but he could not say who were these witnesses. So it is sufficiently clear that except Sumitra Das (PW. 16), there is no other witness to corroborate the fact that Surodhani was going away by a rickshaw at 3.30 p.m. Of course this statement of Sumitra Das could have been relied upon though not corroborated by other evidence had she not been named as co-accused in the confessional statement of Surodhani.
28. It is already stated above that Mr. Bhattacharyya, appearing on behalf of the appellant argued at length challenging the admissibility of the said confessional statement of Surodhani. In reply Mr. Ghose, however, tried to argue that there is no reason to believe that the said confession was not made voluntarily. If this argument of Mr. Ghose is taken into account then it is to be believed that Surodhani with the help of Sumitra Das (PW. 16) committed murder of Parul Bala. The said confessional statement was made on 4.1.93 and the statement of the witnesses including Sumitra Das was taken by police under Section 161 Cr. PC on 30.12.92. So it can be presumed that before 30.12.92 Sumitra Das made the statement as regards seeing of Surodhani at 2 p.m. and 3.15 p.m. Surprisingly enough immediately after the availability of confessional statement as recorded by the learned Magistrate (PW. 5), the Investigating Officer (PW. 24 S.I. Prasad Pradhan) did not make any attempt for investigation with regard to the veracity of the said confessional statement of Surodhani. At the same time it appears from the evidence of PW. 16 Sumitra Das that she prayed for anticipatory bail before the learned Sessions Judge, Jalpaiguri on 11,1.93. Papers in support of this claim have not been produced in this case. But if any reliance is placed on the said evidence of PW. 16, the only conclusion would be that she got the order of anticipatory bail from the Court and the Investigating Agency did not think it necessary to oppose the bail prayer by pointing out the statement made by accused Surodhani under Section 164 Cr. PC. The evidence of the 1.0. PW. 24 is that he simply collected the statement of the accused Surodhani on 6.1.95 and kept it with the record without making any attempt to interrogate the accused Surodhani after taking her into custody or making any investigation as regards the part played by Sumitra Das in connection with the alleged offence.
29. So if any reliance is placed on the confessional statement of the accused Surodhani, it is required to be concluded that at best some other person helped Surodhani in actual commission of the murder. It can only be presumed that Sumitra might had a role to play in the alleged offence. Since the Investigating Agency did not make any investigation on this point, we must say that this intentional gap was made in the chain of circumstances purposedly or carelessly.
30. It is also to be noted that the alleged statement of the accused Surodhani leading to the recovery of the alleged weapon of offence which is a grinding stone (Mat. Ext. XVIII) has not been proved in this case, nor any attempt was made to get it marked as exhibit. It is simply claimed by the Investigating Officer (PW. 24) that Surodhani made a statement and on its basis she was taken to the house of Animesh and the grinding stone was recovered in presence of witnesses on 1.1.93.
31. PW. 2 Animesh also claimed that police came to his house on 1,1,93 with the accused Surodhani and on her identification police seized grinding stone from the kitchen. In cross-examination PW. 2 further stated that there was some kind of reddish stain in the said grinding stone and it was presumed to be blood. In the Chemical Examiner's report also it was indicated to be blood, but it appears from the evidence of Chemical Examiner Mrs. K. Pal PW. 25 as well as from the report that blood group or identification of the blood could not be established. Of course it is further indicated that hair of eyebrow was noticed there. It is interesting to note that identity of the eyebrow has not been established. It is argued that as the scar mark near the eyebrow of the victim Parul Bala was noticed it must be presumed that the eyebrow was of victim Parul Bala. But without any definite proof of it we fail to accept this argument. Similarly it is not possible to come to a conclusion that the alleged stains on the grinding stone was from the blood of victim Parul Bala.
32. In this connection it would not be out of place to mention that though PW. 18 i.e. the Autopsy Surgeon claimed that injuries inflicted on the victim Parul Bala can be caused by any hard and blunt substance like grinding stone (Mat. Ext. XVIII). But there is no evidence with regard to the fracture caused to the rib and sternum. It is also to be noted that there is also no evidence that haematoma and other fracture on the ribs and sternum were caused by grinding stone. In the confessional statement it is stated that the victim died as a result of strangulation but from the evidence on record it can simply be concluded that this part has not been established due to the absence of ligature mark in the neck or fracture on any of the portion of the neck, The nature of the injuries cannot rule out the possibility of fall on a hard and blunt substance or coming in contact with such hard substance. Under Section 164 Cr. PC a confessional statement was made but it is not indicated therein that a grinding stone was used as weapon of the offence. So the nature of injuries cannot be justified from the confessional statement of accused Surodhani nor it is possible to infer from the confessional statement of accused Surodhani that the grinding stone was used for killing the victim Parul Bala.
33. Thus, the simple recovery of the grinding stone has not been able to connect it with the alleged offence. A single statement of PW. 16 Sumitra Das who could have been a co-accused but made a witness in this case cannot be relied upon as regards going away of accused Surodhani by a rickshaw, without any corroboration. In this connection it is also to be noted from the evidence of PW. 2 that Animesh with Debasis Pal (PW. 17) claimed before him that he saw the accused Surodhani going out of his house with a bag in her hand in a rickshaw at about 3.30 p.m. It is already discussed above that PW. 17 Debasis Pal claimed that he saw accused Surodhani standing in the front door of the house of Animesh at 2 p.m. At best it can be concluded that the accused Surodhani was found in the house of Animesh at 2 p.m. There is no convincing evidence that she was going away by a rickshaw carrying a bag at 3.30 p.m.
34. It is already indicated above that the Investigating Officer wilfully or erroneously did not investigate on the point of involvement of Sumitra Das (PW. 16) with the alleged offence. Similarly, the I.O. did not make any investigation as regards the involvement of other person in the alleged offence, especially when he noticed that six sarees were lying near the back side fencing of the house. It is also to be noted that time of actual killing of the victim has not been established in this case either in the post-mortem report or by the evidence of the autopsy surgeon. So mere presence of accused Surodhani at 2 p.m. near the gate of the house of Animesh cannot prove her direct involvement in the murder of Parul Bala. The possibility of her absence at the time of alleged murder cannot be ruled out altogether. So from the circumstances we cannot rule out the possibility of murder of Parul Bala at the hands of some other person beside the accused Surodhani. Since the investigation was not made on this score, we must say that the I.O. committed grave error in not making any investigation regarding involvement of Sumitra Das or any other person with the alleged offence. On the other hand, the conduct of the I.O. divulged an intentional protection given to Sumitra Das for the reason best known to him. In this connection it is also to be noted that the I.O. though examined Kishori Das (PW. 22) for the corroboration of her claim of noticing Surodhani at 2 p.m. and 3.30 p.m. the Kajal Kakima in whose house Sumitra was working was not examined for giving a corroboration that Sumitra had left that house at 2 p.m. and returned back at 3.30 p.m. So the conduct of Sumitra is shrouded in mystery and so is the investigation part of the I.O. on this score.
35. So after a careful scrutiny of the evidence on record and the circumstances explained, we are of the view that the conviction of Surodhani under Section 302 IPC cannot be upheld. In this connection it is also to be pointed out that when doubt has been created as regards the identity of the culprit in the actual involvement of killing, the benefit of such doubt must go in favour of the accused. It is also pertinent to mention that at the time of framing of charge no attempt was made to add Section 34 or Section 109 of IPC along with Section 302 of IPC. Relying on Garib Singh's case , it can be said that even though no charge is framed under Section 34 of IPC a conviction with the aid of that section is permissible if the evidence on record connects the accused with the alleged offence. So the absence of charge under Section 34 by itself cannot be said to be fatal unless it is shown that prejudice was caused to the accused. After a careful scrutiny of the evidence on record we accept the argument of Mr. Bhattacharyya that prejudice has been caused to the accused Surodhani Roy for not framing of charge under Section 34 of IPC inasmuch as there is no direct evidence of killing Parul Bala at the hand of accused Surodhani. Since the circumstances do not rule out the possibility of presence of at least another person other than accused Surodhani, we are of the view that prejudice would be caused to the accused Surodhani if charge under Section 302 IPC is not framed with the aid of Section 34 IPC. In a case of this nature the only remedial measure would have been to send the case back on remand for retrial after necessary correction of the charge. Keeping in view the long period elapsed from the date of institution of the proceeding, it would be almost denial of justice to the accused if the case is directed to be sent back on remand at this belated stage.
36. So after a due consideration we come to the conclusion that prosecution has not been able to prove the charge under Section 302 IPC against accused Surodhani.
37. It is already discussed above that there was effective action for causing disappearance of evidence of murder. It is also indicated how the body was burnt in part-for giving it a look of accidental death. All these attempts are sufficient to prove the charge under Section 201 IPC. The facts that accused Surodhani was kept in charge of the lady on 29.12.92 and Surodhani had left the premises of Animesh on that very day after keeping indication of accidental death of Parul Bala, and also her departure without intimating the immediate neighbour Chitta Choudhury (PW. 10) are sufficient to prove that all out efforts were made for causing disappearance of evidence of murder. After a due consideration we hold and conclude that charge under Section 201 IPC has been proved beyond any reasonable doubt against the accused Surodhani.
38. It is also discussed above that Surodhani immediately after the occurrence found missing from the house of Animesh along with valuables. It is also discussed that few of these valuables along with family photographs of Animesh were recovered from the house of her mother Giribala and the absence of the accused Surodhani from the house of Giribala are sufficient to prove that the valuable articles were carried by Surodhani to the house of her mother and she also concealed herself from the house of her mother being fully aware of the alleged offence of causing disappearance of evidence of murder as well as theft of property in possession of her master Animesh so as to bring the offence within the purview of Section 381 of the IPC. We are of the view that the Trial Court rightly found the accused Surodhani guilty under Section 381 of the IPC.
39. From the above analysis we come to the conclusion that the conviction of the accused Surodhani under Sections 201 and 381 of IPC is to be confirmed, but the conviction under Section 302 is to be set aside.
40. As regards the imposition of sentence it is to be noted that the Trial Court imposed sentence of two years along with fine of Rs. 500/- in default to suffer R.I. for two months in both counts under Section 201 and under Section 381 of the IPC. But keeping in view the nature of the case and the responsibility given to the maid-servant, we are of the view that the sentence of R.I. for seven years along with a fine of Rs. 500/- would be just and proper under Section 201 of the IPC. Similarly a sentence of R. I. for five years with fine under Section 381 of IPC is also justified. Moreover, both these sentences are required to run consecutively and that will meet the ends of justice. The appeal is accordingly allowed in part. The conviction and sentence under Section 302 of IPC against the convict Surodhani Roy @ Sumitra Roy is hereby set aside. However, the conviction of the said accused under Sections 201 and 381 of IPC are confirmed and the sentences imposed thereunder are altered.
41. The appellant Surodhani Roy @ Sumitra Roy is sentenced to suffer R.I. for seven years and also to pay a fine of Rs. 500A i.d. to suffer R.I. for two months under Section 201 of the IPC. She is also sentenced to suffer R.I. for five years and also to pay a fine of Rs. 500/- i.d. to suffer R.I. for two months under Section 381 of IPC. The sentences imposed on these two counts shall run consecutively. However, the period of detention undergone by the appellant Surodhani Roy @ Sumitra Roy as under trial prisoner be set off under Section 428 of the Code of Criminal Procedure against the term of substantive sentence. The conviction and sentence under Section 302 of IPC is however set aside and the conviction and sentence is altered in the manner indicated hereinabove. The Trial Court is directed to issue a modified jail warrant accordingly.
Sankar Prosad Mitra, J.
43. I agree.