Calcutta High Court (Appellete Side)
Ashis Chatterjee @ Asish Chatterjee vs State Of West Bengal on 18 December, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 175 of 2013
Ashis Chatterjee @ Asish Chatterjee
-Vs-
State of West Bengal
For the appellant : Md. Ashraf Ali,
Ms. Sabnam Laskar
For the State : Mr. Arun Kumar Maity, ld. A.P.P.,
Mr. Sanjoy Bardhan
For the Defacto
Complainant : Mr. Sanjay Banerjee,
Mr. Bitashok Banerjee
Heard on : 22.11.2018 & 13.12.2018
Judgment on : 18.12.2018
Joymalya Bagchi, J.:-
The appeal is directed against the judgment and order dated
27.02.2013and 28.02.2013 passed by the learned Additional District and Sessions Judge, Fast Track, 3rd Court, Rampurhat, Birbhum, Sessions Trial No. 5(2) of 2010 arising out of in Sessions Case No. 127 of 2009 convicting the appellant for commission of offence punishable under Section 302 of the 2 Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.20,000/-, in default, to suffer rigorous imprisonment for one year more.
The prosecution case as alleged against the appellant is to the effect that on 02.07.2009 at 5.30P.M. Prosanta Sarkar (P.W.1), brother of the victim Mollika Sen lodged a written complaint that his elder sister Mollika used to reside alone in the first floor of the premises named and styled as 'Maa Tara Anusthan Bhaban' situated at Rampurhat, Birbhum. He heard over telephone from his nephew Tapas Sarkar, P.W. 6, that his elder sister Mollika was strangulated by an unknown person. After reaching the place of occurrence he came to know that at 3 P.M. his elder sister had cried out in an unnatural voice "Babli". On hearing the noise, Hrisikesh Dutta P.W. 20, a neighbour told his son Somnath Dutta P.W. 17 and others who used to reside in the ground floor of his house to enquire into the matter. Somnath went upstairs to the room of the victim and found her door locked from inside. Thereafter he saw a person coming out of the house. The said person was aged around 30 to 40 years, fair complexioned and about 5 feet 5 inches tall. He hurriedly left the spot in his bicycle say "my aunt is ill and I am going to bring medicine". P.W. 1, further alleged that his sister ordinarily did not open the door to any unknown persons. Hence, he suspected that his sister had been murdered by someone who was known to her. On the written complaint of P.W. 1, Rampurhat P.S. Case No. 111 of 2009 dated 02.07.2009 under Section 302 of the Indian Penal Code was registered for investigation. In the course of investigation the appellant was arrested and incriminating articles including some nylon ropes used to tie 3 cattle were recovered from his premise pursuant to his leading statement. Forensic report with regard to seized articles was obtained and charge-sheet was filed against the appellant.
The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Fast Track, 3rd Court, Rampurhat, Birbhum for trial and disposal.
Charge was framed under Section 302 of the Indian Penal Code and the appellant pleaded not guilty and claimed to be tried.
In course of the trial, prosecution examined 26 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication.
In conclusion of trial, learned trial judge by the impugned judgment and order dated 27.02.2013 and 28.02.2013 convicted and sentenced the appellant, as aforesaid.
Mr. Ali, learned Counsel appearing for the appellant submitted that the prosecution has not been able to prove all the circumstances beyond doubt and the said circumstances do not form a complete chain unerringly pointing to the guilt of the appellant. He stated identification of the appellant as the person who was seen coming out of the house of the victim immediately after the occurrence has not been established. P.W. 17 knew the appellant by name but claimed that he had seen an unknown person coming out of the house at the time of occurrence. In contrast to such version of P.W. 17, P.W. 12, P.W. 20 and P.W. 23 claimed that P.W. 17 had accosted the appellant who was coming out of the house of the victim at the time of occurrence. Not only are the versions of the aforesaid witnesses are 4 at cross purpose with P.W. 17 but their depositions appear to be highly improbable as the name of the appellant does not transpire in the F.I.R. which was recorded by P.W. 1 after he had consulted with the local people including P.W. 17. Evidence of other witnesses who had seen the appellant at the place of occurrence viz. P.W. 3 and P.W. 5 also do not inspire confidence. P.W. 3 did not claim that he divulged the name of the appellant to other witnesses immediately after the incident thereby improbabilising the claims of P.W. 2 and P.W. 4 in that regard. He was belatedly examined by the police on 30.08.2009 much after the arrest of the appellant in the instant case. Similarly P.W. 5, a chance witness was interrogated by the police on 30.08.2009 and his version ought to be taken with a pinch of salt as no contemporaneous document supporting his stay at Maya Lodge has been proved in the instant case. It is submitted that the recoveries of nylon ropes from the house of the appellant has not been supported by any independent witness. The evidence on record does not establish a live link between the ligature used to murder the victim and the articles which were examined by the FSL expert, P.W. 22. Ligature mark was kept in a packet which was labelled and signed by P.W.s 14 and 18, while P.W. 22 received it in a card box marked 'S'. Length of the ligature as described in the seizure list do not match with the articles which were examined by the expert. Statement of the appellant was signed and is inadmissible under Section 162 of the C.P.C. Hence, the chain of circumstances have not been firmly established to prove the guilt of the appellant beyond doubt.
Mr. Maity, learned Additional Public Prosecutor appearing for the State submitted that the appellant had approached the victim for sale of 5 land and was regularly visiting her on such score. Hence, he had easy access to her room. He had been seen going into the room of the victim by P.W. 3 prior to the occurrence and thereafter P.W.s 5, 12, 15, 17 and 23 had seen him coming out of the house and hurriedly go away in a bicycle on the excuse of bringing medicine for his aunt. P.W. 5 identified him in court as well as in T.I. Parade. Recovery of nylon ropes pursuant to the leading statement of the appellant has been established and the opinion of the expert, P.W. 22, clearly proved similarity between the ropes seized from the possession of the appellant and the ligature mark. Evidence of the postmortem doctor established that the victim was murdered by strangulating her with a nylon rope. The aforesaid circumstances, therefore, establish the guilt of the appellant beyond doubt.
Learned lawyer for the de-facto complainant adopted the submissions on behalf of the State and submitted that the appeal may be dismissed.
As the case is based on circumstantial evidence, it may be profitable to recount the circumstances which have been relied upon by the prosecution to prove the guilt of the appellant:
(a) appellant was acquainted to the victim as he had approached her for purchase of land;
(b) He regularly visited the victim and had easy access to her room.
(c) P.W. 3 saw the appellant to go upstairs to the room of the victim immediately prior to the occurrence; He narrated such fact to P.W. 2 and 4.6
(d) Hearing the cries of the victim, P.W. 15 and 17 went to her room and found her door closed from inside;
(e) Thereafter, they saw a person leaving the house and when the latter was confronted by P.W. 17, he left hurriedly in a bicycle stating he is going to bring medicine for his aunt. P.W.s 5, 12, 20 and 23 also witnessed this incident. P.W. 5 identified the appellant in T.I. Parade
(f) P.W. 13, Post-mortem doctor deposed that the victim died due to strangulation by a nylon rope as ligature.
(g) P.W. 25 (I.O.) recovered nylon ropes and other articles including title deed of the victim from the residence of the appellant pursuant to his leading statement.
(h) Forensic examination of the ligature and the nylon ropes established that one of the nylon ropes was similar to the ligature used to murder the victim.
Evidence led by the prosecution to prove the aforesaid circumstances are as follows: -
P.W. 1, Prasanta Sarkar, is the brother of the victim Mollika and the de-facto complainant in the instant case. He received information of the incident on 2/7/2009 at 04.00 p.m. from his nephew Tapas Sarkar (P.W.6). He rushed to the house of Mollika and saw some persons standing in the ground floor. When he went to the first floor he saw his sister lying strangulated on the floor with a rope round her neck. He found Somnath Dutta (P.W.17) and other students at the 7 place of occurrence. He heard the incident from the said persons. He went to the police station and lodged written complaint (Ext.1).
P.W.2, Subrata Mandal, is the brother of Tapas Sinha (P.W.4), the son-in-law of Mollika. On 2/7/2009 around 08.00 p.m. he heard from Tapas Singha that Mollika had been murdered. On the next day, that is, 3/7/2009 in the morning he went to Rampurhat S.D hospital. Prodyut Kumar Mandal (P.W.3), informed him that on 2/7/2009 at 03.15 p.m. he had gone to the house of Mollika. When he left the house he saw the appellant going towards the first floor. Appellant was on visiting terms with Mollika regarding sale of land. In cross-
examination, he admitted that he did not tell police that Prodyut had informed he had seen the appellant go to the first floor of the house of Mollika.
Mollika was the maternal sister of Prodyut Mandal (P.W.3). He deposed on 2/7/2009 that he had gone to the house of Mollika at 3/3.05 p.m. When he was going out of the house, Mollika bolted the door from inside. He saw Asish Chatterjee going up to the first floor of the house. After receiving information of the death of Mollika he along with his wife went to Rampurhat S.D hospital at night. He could not see Mollika. On the next day he again went to the hospital and saw the dead body of Mollika. He went to the crematorium and after cremation he returned home. He visited sradh ceremony of Mollika. He was interrogated by police on 30/8/2009.
P.W.4, Tapas Kumar Singha, is the son-in-law of Mollika. He deposed Tapas Sarkar (P.W.6) telephoned and informed him that his 8 mother-in-law had died due to strangulation. He along with his wife Kakali and others came to the house of Mollika. Tapas Sarkar and others told him that they had seen Asish Chatterjee leave the house after the incident. On the next day in the hospital he heard the name of Asish Chatterjee from Prodyut Mandal.
P.W.5, Ranjit Das, is a chance witness. He deposed that on the occasion of 'Ulto Rath' he had stayed at Maya Lodge as he wished to offer puja at Tarapith. When he came out of the lodge he saw a person in a bicycle was gheraoed by 5/6 individuals. The said person stated that he wanted to purchase medicine as someone was ill and left the place. Two months later he again went to Maya Lodge for the purpose of offering puja. He was interrogated by police and he narrated the incident to them. He identified the appellant in T.I. parade.
P.W.6, Tapas Sarkar, deposed Mollika was his maternal aunt. Her house is at a 7/8 minutes walking distance from his house. On 2/7/2009 at around 04.00 p.m. he received phone call from Shasthi Majhi, a tenant in the house of Mollika, that an accident had occurred. Subsequently, he received another phone call stating that his aunt has been murdered. He rushed to the spot and found a number of persons had gathered there. He informed P.W.1 and 4. Mollika never opened the door without ascertaining the identity of the person. Local people had detained a person who had come out from the house immediately after the incident and had left the place on the excuse of bringing medicine. The name of the person was Asish 9 Chatterjee. Police seized articles from the house of Mollika. He signed on the seizure list. He identified the said articles.
P.W.17, Somnath Dutta, was a resident of a house adjacent to that of Mollika. He deposed Mollika resided in the first floor of his house. Suresh Chandra Mal (P.W.15), was a student who resided in the ground floor of his house. On 2/7/2009 at 03.30-03.45 p.m. P.W. 17 and his father heard cries 'Babli-Babli' from the house of Mollika. His father told him to enquire into the matter. He along with Suresh Mal (P.W. 15) went to the house of Mollika. A tenant of Mollika was named Babli. They found a cycle and a pair of shoes at the entrance of the house of Mollika. They went upstairs and found the door was closed from inside. They called for her but there was no response. Thereafter, they went downstairs. Subsequently, a person came down from the first floor. When he was interrogated the said person, the latter stated that he was going to bring medicine for his aunt. Subsequently, he and Suresh Mal went upstairs and found Mollika was lying dead on the floor of her bedroom with a rope round her neck. They shouted for help. The person who left the house soon after the incident was Asish Chatterjee. He used to visit the house of Mollika and the latter used to refer to him as 'Asish'. He was a land broker and had business of rod, sand, bricks, etc. P.W.15, Suresh Chandra Mal, had substantially corroborated the evidence of Somnath (P.W.17). He further disclosed Somnath told him that he had seen the person who left the house immediately after the occurrence.
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P.W.20, Hrisikesh Dutta, is the father of Somnath (P.W.17). He has corroborated his son's version and stated he had seen a person fleeing away from the varanda of his house.
P.W.12, Balaram Ghosh, deposed he is a neighbor of Mollika. He runs a lodge at Rampurhat. On 2/7/2009 at around 03.45 p.m. he was returning with his daughter from school. He heard a noise and found Somnath had caught hold of Asish and the latter told Somnath not to stop him as he was proceeding to bring medicine for his 'kakima'. Thereafter, Asish left the place hurriedly in a bicycle. He knew Asish from before. He went upstairs and saw the dead body of Mollika. He was present when the police came to the place of occurrence. He signed on the seizure list (Ext.2/1). In cross- examination, he stated that a statement regarding list of boarders was deposited to the local police everyday by 8.30 p.m. P.W.23, Debika Chatterjee, deposed that on 2/7/2009 she had returned home and had gone to the roof to collect garments. She heard someone cry 'Babli-Babli' from the house of Mollika. She called Babli (P.W. 24) and asked her to respond. She found Somnath and some of the students of the locality had gone to the house of Mollika. In the meantime a person came out of the house and when he was stopped by Somnath he stated that he was going to bring medicine for aunt and left hurriedly. Subsequently, Somnath stated that the said person was Asish Chatterjee of Murari.
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P.W.24, Babli Majhi, corroborated the evidence of Debika Chatterjee (P.W.23) and stated she had heard Mollika call out her name. Hearing this, she came to the courtyard and cried out 'kakima' but nobody responded. Number of people assembled at the spot and some of them went upstairs and found the door of Mollika was locked from inside. She became frightened and entered her room.
P.W.9 and 10 deposed that they had seen the appellant go to the house of Mollika relating sale of land.
P.W.13, Dr. S.C. Poddar is the autopsy surgeon who held post- mortem on the body of Mollika. He deposed she died due to effects of strangulation by ligature which was ante-mortem and homicidal. He preserved amongst others the ligature material which he explained in a subsequent query to the police was wrongfully described as jute rope instead of nylon rope. He identified the ligature in court (Ext.3).
P.W.14, Netai Chandra Ghosh, was a constable attached to Rampurhat Police Station. He brought the dead body for post-mortem examination. He proved the dead body challan (Ext.5). After post- mortem examination doctor handed over articles including ligature to him which was seized by I.O. which was seized under a seizure list. He put his signature thereon (Ext.- 6). He also put his signature on the label in the packet of the nylon rope (Ext.7). He identified the nylon rope and other articles in court.
P.W.18, Nihar Ranjan Dutta, is another constable who signed on the seizure list prepared with regard to seizure of wearing apparels 12 and the ligature handed over by post-mortem doctor. He proved his signature on the seizure list (Ext.6/1). He signed on the label on the packet containing the nylon rope (Ext.7/1).
P.W.19, S.I. Ashoke Mondal, prepared the aforesaid seizure list relating to seizure of articles of the victim including the ligature (Ext. 6/2).
P.W.21, Binay Kumar Nania, is the Judicial Magistrate who held T.I. parade. He deposed on 3/9/2009 he held T.I. parade where P.W.5 identified the appellant. He proved the T.I. parade report (Ext. 12).
P.W.22, Dr. Susanta Mukherjee, was posted as Assistant Director, FSL, Calcutta. He received four cardboard cases marked 'S', 'T', 'U', 'V'. He opined that the 203cms. (about 6 ft. 8 inches) yellow colour rope with knots in Ext.T was found similar to yellow colour rope Ext.- S with respect to ply, twist, diameter and presence of blue fibre in one of their three piles. He proved the report (Ext.3). In cross- examination, he stated that when he examined the rope he did not find any seal or signature. There is no annexure in the report showing his conclusion regarding diameter twisting, presence of fibre and plying in the ropes. In the box marked 'S', the rope was made of polythene. In the box marked 'V', there was a nylon rope. He did not mention the constitution of rope in box 'T'.
P.W.25, S.I. Atanu Mondal and P.W.26 S.I. Sougata Ghosh, are the investigating officers. P.W.25 is the first investigating officer. He deposed that he went to the spot and held inquest on the dead body of the victim. He prepared inquest report (Ext.3/2). He seized articles 13 from the place of occurrence under a seizure list (Ext.2/2). He examined witnesses. He informed fingerprint expert and took photographs. S.I. Ashoke Mondal (P.W.19) seized articles which were handed over to constable Netai Chandra Ghosh (P.W.14) by post- mortem doctor. He took charge of the said articles. On 11/7/2009 he seized original deed under a seizure list (Ext.9). On 12/7/2009 pursuant to the statement of the appellant, he seized ash colour trouser, ghee colour full shirt, three nylon ropes of different sizes, a mobile phone and a bicycle. He affixed labels on the said ropes. He collected post-mortem report. Upon transfer he handed over the case diary to I.C. Rampurhat. In cross-examination, he stated that in the seizure list prepared by Ashoke Mondal (P.W.13), colour of the rope has not been mentioned. Tapas Kumar Singha (P.W.4) did not tell that he heard the name of the Asish Chatterjee from Tapas Sarkar (P.W.6), other neighbours or Prodyut Kumar Mondal (P.W.3).
P.W.26, S.I. Sougata Ghosh, is the second investigating officer. He examined two witnesses. He arranged for T.I. parade examination. He sent the exhibits for FSL examination and collected the FSL report. Fingerprint of the appellant was sent for examination. He collected the report of the Fingerprint Bureau (Ext.17). He submitted charge-sheet. In cross-examination, he stated that the statement of Balaram Ghosh does not reveal the names of Dilip Soni and Ranjit Das. No register of the lodge was seized during investigation or placed before the court. The fingerprint was insufficient for giving conclusive opinion. 14
P.W.16, Archana Chatterjee, was declared hostile and she did not support the seizure of articles including nylon ropes from the residence of the appellant.
Analysis of the aforesaid evidence would show that the prosecution has essentially relied on the evidence of local people, namely, P.W.s 12, 15, 17, 20 and 23 to establish that they had seen the appellant leave the house hurriedly after the occurrence on the excuse that he is going to bring medicine for his aunt. Evidence of Somnath Dutta (P.W.17) in this regard is most vital. He claimed on 2/7/2009 around 03.00 p.m. he and his father heard cries coming from the house of the appellant. On instruction from his father, he along with P.W.15 a tenant, went to the house of the appellant. They went upstairs and called for the victim who did not respond. Her door was closed from inside. Subsequently, they came downstairs. Soon thereafter, a person came out of the house and when P.W.17 confronted him, he left hurriedly in his bicycle claiming that he was going to bring medicine for his aunt. P.W.15 and 20 have also corroborated his version. From the tenor of the deposition of the said witnesses it appears that none of them were aware of the identity of the person who had left the house hurriedly in a bicycle after the incident. This fact is further reinforced as P.W.1 lodged First Information Report after consulting P.W.17 and other local people against unknown accused. Hence, one can safely conclude that P.W.17 and other local people were not aware of the identity of the appellant till P.W.1 arrived and lodged F.I.R. However, it cannot be 15 said that the appellant was unknown to P.W.17 and other local people. In fact, P.W.17 in his deposition claimed that he knew the appellant as a person who carried on business in building materials and used to visit the house of Mollika. Mollika used to call him 'Asish'. If that were so, why P.W.17 was unable to identify the person leaving the house of the victim as the appellant .Such inconsistency strongly militates against the prosecution version that P.W.17 had seen the appellant come out of the house of the victim soon after the incident and hurriedly leave the place in a bicycle. In sharp contrast to such evidence of P.W.17, P.W.12 claimed that P.W.17 had confronted the appellant whom he had identified at the spot. Thereafter, P.W.20 went upstairs and found the victim lying dead with the ligature round her neck. He was also found present at the time when the police came at the spot and seized articles. P.W.23 another local witness claimed P.W.17 had informed her at the spot that the person who left the house after the incident was the appellant. P.W.17, however, did not claim to have done so clearly contradicting the version of P.W.24. Furthermore, if P.W.20 had identified the appellant by name at the spot, he would have certainly divulged his name to P.W.15 and 17 and the F.I.R. lodged thereafter by police consultation with local people would not have been registered against unknown accused. Hence, it is amply clear that none of the witnesses had identified the person who had left the spot in a bicycle as the appellant and, therefore, the F.I.R. was registered not against the appellant, but against unknown accused.
16
Apart from the aforesaid evidence on record, prosecution has relied on the evidence of P.W.3 to establish that he had seen the appellant go to the first floor of the house when he was leaving the house after meeting his aunt on the fateful day. P.W.3, however, did not claim that he disclosed such fact to anyone after the incident, although he had come to the hospital and thereafter to the cremation ground. No doubt P.W.2 claimed that P.W.3 had divulged such fact to him in the course of the 'sradh ceremony' but I find it difficult to accept his version as the same is not corroborated by P.W.3. P.W.2 had also not divulged such fact to the police earlier and stated such fact for the first time in court. His desperate attempt to cover up such serious lacunae by putting the onus on the police is not convincing and opposed to normal human conduct of coming out with the most vital clue with regard to the identity of the murder when interrogated by police. Such conduct on his part is most unnatural and it would be unsafe to rely on his evidence. More so, when he was belatedly examined by police on 30/8/2009 much after the appellant had been arrested. Similarly, version of P.W.4 that he had heard of the incident from P.W.2 in the hospital is not corroborated by the latter and loses significance.
Finally, the prosecution has relied on the evidence of a chance witness P.W.5. Like P.W.3, this witness was belatedly examined, that is, two months after the occurrence and after the arrest of the appellant. He claimed that he had boarded in a hotel, namely, Maya Lodge. No register of the said hotel was produced to corroborate his 17 version. He also did not state the features of the appellant during his examination to the police or in his deposition to the court. It is, therefore, highly unsafe to rely on this witness whose presence at the place of occurrence has not been established by production of contemporaneous registers of the hotel where he had put up. T.I. parade examination was held on 3/9/2007, almost 52 days after the arrest of the appellant. In this backdrop, I do not find it prudent to rely on the version of the chance witness to establish the identity of the appellant in the instant case.
In the light of the aforesaid discussion, I am constrained to observe that the prosecution evidence with regard to the fact that the appellant was seen going upstairs to the room of the victim prior to the incident and was seen leaving in a hurried manner after the incident is extremely shaky and cannot form the foundation of proof beyond reasonable doubt. Prosecution has also not been able to establish that it was only the appellant who could have gone inside the room of the victim on the fateful day. In fact, P.W.2 himself claimed that he had visited the victim on that day. It is, therefore, possible that some other person known to the victim but not to P.W.17 and other local people may have visited the appellant. Such a situation is neither in the realm of impossibility or improbability. Finger prints collected from the room was insufficient to come to a conclusive opinion. Hence, it cannot be said with certainty that it was the appellant alone who had visited the victim in her room at the time when she had been strangulated to death.
18
The other circumstance which has been heavily relied upon by the prosecution is the similarity between the ligature seized from the body of the victim and one of the nylon ropes which was seized from the residence of the appellant pursuant to his statement. Learned lawyer for the appellant severely criticized such evidence on the score that the purported leading statement of the appellant is a signed one which is impermissible under section 162 Cr.P.C. It is also submitted the colour of the ligature is not stated in seizure list (Ext.6/2) prepared by P.W.19. P.W.22, FSL expert found the ligature in a card board marked 'S' while P.W.14 and 18 claimed that the ligature was put into a packet on which a label was pasted and signed by them. P.W. 25 claimed that he put labels on the ropes seized from the residence of the appellant but P.W.22 did not notice any label on the ropes sent to him. There is a snap in the link since no evidence is forthcoming as to who transferred the ligature kept in a packet duly labelled and signed by P.W.14 and 18 to a cardboard box marked 'S' which was examined by P.W.22. Labels on the nylon rope seized from the house of the appellant were also not noted by the FSL expert. It is also pertinent to note that the length of the ligature, that is, 6 ft as noted in the seizure list (Ext.6/2) does not tally with the length of the rope, that is, 203 cms (about 6ft 8 inches) found in the cardboard box marked 'S'. Opinion of P.W.22 (Ext.13) is not supported by any data relating to diameter, twisting and plying of fibres in the ropes. On the other hand, P.W.22 admitted that he had not mentioned the constitution of the rope in box 'T' while he noted that the rope in box 19 'S' was made of polythene. It is true that the ligature produced in court were identified by the witnesses. However, it is difficult to rely on such identification when the chain evidence with regard to labelling and preservation of such article have snapped. Ligature produced by P.W.14 to I.O. was kept in a packet which was labelled and signed by him and P.W.18. No evidence is forthcoming connecting the said ligature kept in a labelled packet to the one which was despatched in a cardboard box marked 'S' to P.W.22. Snap in the chain of custody is, therefore, palpable. Length of the ligature as noted in the seizure list (Ext.6/2) and the ropes kept in cardboard box marked 'S' are not exactly the same. Hence, the chain evidence connecting the ligature with the article produced before P.W.22 is not established. Opinion of P.W.22 is not supplemented by data and he claimed that he did not find any label or mark on the ropes produced before him in stark contrast to the evidence of P.W. 25 who claimed that the seized ropes had been labelled. He also could not state the constitution of the rope which was kept in cardboard box marked 'T'. Lastly, P.W.22 had opined that the two ropes were similar but not the same. It is common knowledge that similar ropes are ordinarily available in the market. Therefore, it cannot be said to have been proved that the ligature recovered from the victim was a part of one of the ropes seized from the house of the appellant as claimed by the prosecution. Snap of the aforesaid links in the chain of circumstances are telling and strike at the very root of the prosecution case.
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I am of the view none of the prosecution witnesses including the neighbours and relatives of the victim had identified the appellant as the person going to or leaving the house of the victim on or about the time of occurrence. Had it been so, they would have disclosed his identity to P.W.1 who consulted them prior to lodging of F.I.R. Registration of F.I.R. against unknown accused, therefore strikes at the root of the prosecution case renders the version of prosecution witnesses P.W.s 12, 15, 17 and 23 vulnerable regarding identification of the appellant. Similarly, belated examination of P.W. 3 and 5 by police much after the arrest of the appellant and failure to produce contemporaneous registers of Maya Lodge supporting the presence of the chance witness (P.W. 5) make it unsafe to rely on their depositions in court. Evidence of P.W. 2 and 4 relating to disclosure by P.W. 3 with regard to presence of the appellant at the place of occurrence is not corresponded by P.W. 3 himself and lose all significance. Finally, live link between the ligature produced by P.W.14 and the one examined by P.W.2 and as well as the hollowness of his opinion ring a death knell to the prosecution case.
Accordingly, I am of the opinion that the appellant is entitled to benefit of the doubt and his conviction and sentence are liable to be set aside.
Appeal is allowed and the appellant is to be forthwith released from jail custody, if not wanted in any other case, upon executing a bond to the satisfaction of the trial court which shall remain in force 21 for six months in terms of Section 437A of the Code of Criminal Procedure.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
I agree.
(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.)