Calcutta High Court (Appellete Side)
Jagadish Chowdhury vs State Of West Bengal on 30 August, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item 113
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. 615 of 2015
Jagadish Chowdhury
-Vs-
State of West Bengal
For the Appellant : Mr. Siladitya Sanyal, Sr. Advocate,
Ms. Susmita Saha Dutta, Advocate,
Mr. Subhrojyoti De, Advocate,
For the State : Mr. Saibal Bapuli, Advocate
Mr. B. Bhattacharya, Advocate
Heard on : 30.08.2018
Judgment on : 30.08.2018
Joymalya Bagchi, J. :-
Appeal is directed against the judgment and order dated 9th July, 2015
passed by the learned Additional Sessions Judge, First Court, Raiganj, Uttar
Dinajpur in Sessions Case No.69 of 1999 in Sessions Trial No.41 of 2000
convicting the appellant for commission of offence punishable under sections
302/201 of the Indian Penal Code and sentencing him to suffer imprisonment for
life and to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for
six months more.
The prosecution case, as alleged against the appellant, is to the effect that
he was married to the victim Fulbanti seven years ago. When Fulbanti was
pregnant, the appellant had left her at the parental home. Two-three months
later, a female child was born. The appellant did not take back his wife and
daughter. Motilal Chowdhury (P.W.2), brother of Fulbanti came to know that the
appellant and his family members were planning to give the appellant in marriage
for the second time. He along with village people went to the house of the
appellant on 12.06.1993. Initially the appellant declined to take his sister back.
A salish in presence of local people was held. According to the design in the
salish, on 13.06.1993 appellant took back his wife and daughter to the
matrimonial home.
On 20.06.1993, Motilal Chowdhury (P.W.2) received a letter from a local
club, Swamiji Sangha. On receiving such letter, he went to the house of the
appellant but could not find the appellant. He enquired of the members of the
club and came to know that a dead body was found at Bamuhaghat on the
eastern bank of river Kulik. He identified the dead body as that of his niece
Chameli, daughter of the appellant. He found clothings of his niece and sister
lying near the dead body. The body of his sister could not be traced. Over the
issue he lodged written complaint with the police station resulting in Raiganj
Police Station Case No. 224 of 1993 dated 22.06.1993 under sections
364/302/201/120B of the Indian Penal Code against the appellant and his family members.
On 25th June, 1993 dead body of Fulbanti was recovered and inquest was held over her body. Postmortem was held over the dead bodies of Fulbanti and her daughter Chameli. In conclusion of investigation, chargesheet was filed against the appellant. The case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, 1st Court, Raigunj, Uttar Dinajpur. Charges were framed under sections 364/302/201 of the Indian Penal Code against the appellant.
In conclusion of trial, prosecution examined 16 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the learned trial Judge by the impugned judgment and order convicted and sentenced the appellant, as aforesaid. Mr. Sanyal, learned Senior Advocate for the appellant submitted that the prosecution has failed to prove the circumstances relied upon to bring home the guilt of the appellant. Evidence of P.W.2 that the appellant had taken his wife along with their daughter from her parental home to his residence is not corroborated by other evidence. P.W.8 does not speak of the date when he saw the appellant taking his wife and daughter. P.W.9 deposed that he saw the couple with their daughter five days prior to the date of submission of letter to P.W.2 i.e. 15/16th June, 1993. In view of such consistencies, in the evidence of prosecution witnesses, the trial Court ought not to have come to a finding that the appellant had taken his wife and daughter back to the matrimonial home prior to the incident. Even the discovery of the body of Chameli is shrouded in mystery. P.W.5, the author of the letter written to P.W.2, in cross-examination disowned the letter produced in Court. It is unclear when P.W.2 had received the letter and there is no explanation as to why he waited for 1/ 2 days thereafter to go to the spot for enquiry. Judicial confession was recorded by the Magistrate on the day the appellant was produced from police custody without remanding him to judicial custody and without giving him sufficient time for reflection. Judicial Magistrate did not assure the appellant that he would not be remanded to police custody if he declined to make confession. The contents of the confession with regard to the manner of commission of offence are not corroborated by medical evidence of P.W.13, the postmortem doctor. He relied on Sarwan Singh Rattan Singh vs The State Of Punjab, AIR 1957 (SC) 637, in support of his contention. On the other hand, Mr. Bhattacharya, learned Advocate for the State argued that the chain of circumstances is complete and unerringly points to the guilt of the appellant. The appellant had inimical relationship with the victim and had left her at matrimonial home. He did not keep contact with her even after the birth of the girl child and there were talks of his second marriage. A salish was held on 12.06.1993 and on the very next day, the appellant took his wife to the matrimonial home along with their child. Thereafter, the dead bodies of the victims were found and medical evidence shows that they suffered homicidal death. The appellant made judicial confession after caution was duly administered to him and had retracted the confession belatedly during his examination under Section 313 CrPC. He relied on Shankaria vs State Of Rajasthan, AIR 1978(3) SCC 435 and Devi Singh vs State of Rajasthan 2005(10) SCC 453 in support of his submission that no fixed time frame for reflection is necessary for recording judicial confession if the Magistrate is satisfied that the confession was made after compliance of legal formalities and mind of the confessor was free from any influence. Hence, the prosecution case is proved beyond reasonable doubt.
Let me examine the evidence on record in the light of the aforesaid submissions on behalf of the parties.
P.W.2 Matilal Chowdhury is the brother of the victim Fulbanti and the informant in the instant case. He deposed that Jagadish was married to Fulbanti 7 years ago. Fulbanti gave birth to a daughter after 6 years of marriage. The baby was born in his house. Fulbanti came to his house while she was carrying for 8 months. Although he informed Jagadish about the birth of the baby he did not turn up. In the month of June, 1993 he went to the house of Jagadish and requested him to take back his wife and baby. He informed the matter to the neighbours in the village on 11th or 12th of June. In presence of local people the appellants assured that he would take his wife along with baby within 1/ 2 days. He sent back his sister and her daughter with the appellant along with several gifts according to customs. On 20.06.1993 he received a letter from 'Swamiji Sangha'. He came to know that the dead body of the baby was found in the bank of river Kulik in Bamuhaghat. He met the members of the club and found that the dead body was that of his niece Chameli. Prafulla Biswas was also there. He found other articles, namely, frock of Chameli, sarees and other wearing apparels of his sister at the spot. He went to Raiganj Police Station with one Prafulla and narrated the incident to the police officer. He came to the place of occurrence after receiving letter on 22.06.1993. On 25.06.1993 he got information about his sister. Thereafter, he proceeded towards Tithi village beside Kulki river. He found the dead body of his sister buried under the earth beside Kulki river with Hematabad Police Station. Officers of Raiganj and Hematabad P.S. came to the place of occurrence. Dead body of his sister was recovered by police upon his identification. Dead body was brought to Raiganj for postmortem examination. His sister was peacefully living with her husband in her matrimonial home prior to coming to his home. The written complaint lodged at Raiganj P.S. was written by Niranjan Malakar. He proved his signature on the written complaint. The dead body of Chameli was recovered by the police and he signed on the inquest report dated 21.06.1993 (Exbt.2). The wearing apparels were seized under the seizure list. He signed the seizure list (Exbt.3). He handed over the letter of Swamiji Sangha to police which was seized under the seizure list and signed on the seizure list (Ext.4). He signed on the inquest report after recovery of the dead body of his sister. In cross-examination, he deposed that he was mentally depressed when the written complaint was drafted.
P.W.3 Prafulla Biswas is a resident of village Kokra. He deposed that on 21.06.1993 in the night he came to know that a dead body of a baby was found in river Kulik and it was initially noted by the children of the locality who were playing at the spot. On 22.06.1993 the villagers were thinking of proceeding to the spot when P.W.1 Dawna Chowdhury and P.W.5 Lokesh Chandra Das, Secretary of local club, met them. All of them went to the bank of the river and P.W.2 identified the body as that of his niece Chameli. Then they went to Raiganj Police Station and thereafter returned to the bank of the river with police. Police recovered the body along with wearing apparels. He signed on the inquest report.
P.W.1 Dawna Chowdhury was also a signatory to the inquest report relating to the dead body of the victim Chameli on 22.06.1993.
P.W.5 Lokesh Chandra Das is a resident of Tithi village. He was the secretary of Swamiji Club for the years 1992, 1993 and 1994. He knew the appellant and his family members. He sent a letter in 1993 to Matilal Chowhdury through Amar Chowdhury (P.W.9). Amar Chowdhury was a member of the club. He identified the photocopy of the letter. Matilal met him after receipt of the letter. Matilal found that his sister and child were not in the house. They got information from Bamuhaghat that a dead body of a baby was found there. They proceeded towards Bamuhaghat and found the dead body of the child on the bank of river Kulik. Matilal went there and identified the dead body. Fulbanti was untraceable when the dead body of Chameli was found. He was declared hostile and in cross-examination, he stated that the letter produced in Court is not the original letter written by him. He had not prepared any duplicate of the said letter.
P.W.9 Amar Chowdhury is another member of Swamiji Club. He stated that he carried the letter to Matilal Chowhdury 10/12 years ago. Lokesh Chandra Das, Secretary of the Club, had given him the letter. He identified his signature in the letter (Ext. 4/2). Five days prior to the delivery of the letter, he had gone to Batliopara to visit his daughter when he was proceeding towards his daughter's house, he met Jagadish, his wife and baby on the way.
P.W.8 Suresh Chowdhury deposed that occurrence took place 12 years ago in the last part of the month of Jaistha. On that date he had gone to attend the marriage ceremony in the house of Badan Rajbhar and when he was returning home he met Jagadish, his wife and baby. On query, he stated that he was coming from his in-laws house when he came to know that a dead body of a baby had been recovered. Subsequently, dead body of the wife of the appellant was also recovered. He was a member of the club and he identified his signature of the said letter.
P.W. 7, Ramchandra Chowdhury deposed that Fulbanti was brought to her parent's house when she was carrying. She gave birth to a female baby. Thereafter, Fulbanti was staying at her parent's house and her husband did not take her back to his house for a long period. A salish took place in the village of accused and it was settled that the latter would bring brought back from her parental home. Thereafter, on the next date, the appellant took her back along with the child. Six to seven days later one aged person claiming to a member of Swamiji Sangha Club informed that a dead body of a female baby was found on the bank of a river. On 24.06.1993 they went towards the village Mukundapur and met the club members. On the next day, they went to the bank of the river to search and during search they detected the dead body of Fulbanti in a jungle. Dead body of Fulbanti was recovered after digging the earth with the assistance of police and it was identified by Matilal Chowdhury.
P.W.10, Niranjan Malakar is the scribe of the first information report. He proved the first information report as Ext.-1. He deposed that the dead body of the baby was recovered from Kulik River on the selfsame date of submission of F.I.R. The dead body of the mother was recovered two to three days later. He signed on the inquest report as Ext.-5.
P.W.11, Pran Gobinda Das was a home guard now attached to Raiganj Police Station. On 22.06.1993 he along with S.I. Subhash Pradhan recovered the dead body of a baby which was lying on the river bed of Kulik River at Bamuaghat. He took the dead body to Raiganj Hospital Morgue.
P.W. 12, Birendra Nath Roy is a constable who was attached to Hemtabad Police Station. On 25.06.1993 he along with the then O.C. of Hemtabad Police Station went to the side of Kulik river and recovered the dead body of a female person from a jungle. The dead body was under the earth. He took the dead body of the victim to Raiganj District Hospital Morgue for post mortem examination.
P.W. 14, Sujit Kumar Ghosh deposed that he was posted as O.C., Hemtabad Police Station on 25.06.1993. He was informed that on 13.06.1993 the appellant had taken his wife and daughter from her parental home and since then they had been missing. On 22.06.1993 dead body of the daughter had been recovered from the river bank and a bad smell was coming from the spot. He suspected the dead body of the wife of the appellant may be found there. He communicated the information to I.C. Raiganj and requisitioned deputing of an Executive Magistrate for brining out the dead body. He accompanied Subhash Pradhan (P.W.15) and B.D.O. Hemtabad to the spot. Dead body of a female was brought out and was identified as Fulbanti. Executive Magistrate prepared the inquest report and he signed on the report. The dead body was sent for post mortem examination.
P.W. 13, Rash Behari Ghosh, held post mortem examination on the dead body of Chameli Chowdhury and noted as follows:-
"I found the body was in decomposed state, skull bone was separated, right leg was also separated from the body, one incised wound 4/1" into cavity right side of chest attached to sternum."
He opined that death was due to shock as a result of wounds stated above ante mortem and homicidal in nature. He held post mortem over the dead body aged about 25 years and found multiple ecchymosis on the back of Fulbanti and noted sand particles in the lumen of trachea. He opined death was due to shock and asphyxia as a result of wounds of drowning in muddy water, ante mortem and homicidal death. In cross examination, he did not mention on which side ecchymosis were found. He opined if a body is in water then it may be decomposed after two to three days. Dead body of Chameli was found in decomposed state. Wound was found on the right side of chest of Chameli.
P.W.s 15 and 16 are the investigating officers.
P.W.15, Subhash Pradhan stated that on 22.06.1993 he was posed at Raiganj P.S. He filled up the formal F.I.R. as Ext.-10. He took charge of investigation. He visited the place of occurrence and prepared a rough sketch map with index. He held inquest over the dead body of Chameli (Ext.-2). He seized a red coloured cotton sari with black border, one red coloured printed sari containing rice, one yellow coloured blouse, one black frock, one jangia, one white coloured old saya under a seizure list. On 25.06.1993, another dead body was recovered at Fasidanga under Hemtabad P.S. The dead body was identified as that of Fulbanti by P.W.2. Inquest was done by police of Hemtabad P.S. and the inquest report was prepared by them. Appellant was arrested. He was produced with a prayer for recording his confessional statement. He collected confessional statement. He collected post mortem report of Chameli. He handed over the case diary on 31.03.1995.
In cross-examination, he stated that on 17.07.1993 he forwarded the accused Jagadish Chowdhury for recording confessional statement under Section 164 of the Code of Criminal Procedure. His statement was recorded on 17.07.1993.
P.W. 16, Sukumar Misra, deposed that he arrested Rampujan Chowdhury, whose name was mentioned in the confessional statement of principal accused Jagadish Chowdhury. He collected SCD of Hemtabad P.S. U.D. Case No. 16/93 dated 25.06.1993. He recorded statements of other witnesses and submitted chargesheet against the appellant alone.
It is evident from the materials on record that the prosecution has essentially relied on these two circumstances to establish the guilt of the appellant:-
(a) Appellant had taken his wife and daughter to his home on 13.06.1993 and since then they were missing.
(b) Judicial confession of the appellant recorded on 17.07.1993 immediately after his arrest.
That apart, it has also come on record that on 22.06.1993 the dead body of Chameli, daughter of the appellant was recovered from the bank of the river Kulik and on 25.06.1993 dead body of Fulbanti, wife of the appellant was recovered buried in a jungle at Fasidanga under Hemtabad Police Station. Post mortem of Chameli showed that she died due to an incised wound on the right side of her chest while Fulbanti had died due to shock and asphyxia as a result of ante mortem and homicidal drowning. Ecchymosis on the back of Fulbanti was also noted. Hence, there is no doubt that both Fulbanti and Chameli had suffered homicidal death. In the course of his examination under Section 313 of the Code of Criminal Procedure, appellant had retracted the confessional statement by denying that he had not made any such statement before the learned Magistrate at all. It is settled law that a judicial confession which is voluntary and truthful and recorded upon compliance of all legal formalities can be the sole basis of conviction. I have, therefore, sought to examine the judicial confession from the aforesaid premise. Learned Senior Counsel arguing for the appellant had challenged the confession on the ground that the same was recorded on the day the appellant had been arrested and produced before the learned Judicial Magistrate from police custody. Appellant was neither remanded to judicial custody nor given adequate time for contemplation before recording such confession. On the other hand, in a hurried manner after posing some routine questions to the appellant the learned Judicial Magistrate recorded the confessional statement of the appellant and mechanically endorsed his satisfaction thereto in terms of section 281 of the Code of Criminal Procedure. On a scrutiny of the records of the case, I find that the appellant was arrested in early hours of 17.07.1993. Cross-examination of I.O., P.W.15 shows that the appellant was interrogated between 5.30 to 9.10 a.m. on that date. Immediately, thereafter he was produced from police custody before the learned Magistrate with a prayer for recording his confessional statement. In this backdrop, the appellant was kept segregated for merely 30 minutes and thereafter his confessional statement was recorded after the learned Magistrate. Question which falls for decision is whether in the aforesaid factual matrix it can be safely concluded that the appellant had been given sufficient time for reflection and his mind had been cleansed of any threat or influence which may have existed prior to recording of such confession. No doubt the Magistrate after recording the confession certified that he had explained to the appellant that he was not bound to confess and if he did so, it would be used against him. The learned Magistrate also recorded his satisfaction that the confession was being voluntarily made.
It is to be decided in the facts of the case particularly the circumstances in which the confession was made whether the satisfaction of the Magistrate as to voluntariness is tenable in law and in fact.
I have examined the materials on record and I find that the appellant had been produced before the Magistrate on the very day of his arrest i.e. 17th July, 1993. From the questions put by the Magistrate in order to arrive at the satisfaction as to the voluntariness of the confessor, I find that the appellant had not been assured that he would not be remanded to police custody even if he did not make the confession. This assurance, in my estimation, was of pivotal importance to ensure a sense of security in the appellant that he shall not be put into the hands of the police although he chose not to make a confession. Failure to apprise the appellant of such fact was most vital as he was making the confession upon being produced from police custody and there was every likelihood of his remand to the selfsame custody to his utter prejudice. In this factual backdrop, assurance that the appellant would not be put back into the hands of the police ought to have been communicated to the maker of the confession so as to assuage any sense of insecurity in his mind and thereby remove any apprehension under which he may have been labouring at the time of making the confession.
In this regard, I may refer to the ratio in Sarwan Singh Rattan Singh vs. State of Punjab (AIR 1957 SC 637) wherein the Apex Court as a rule of prudence though not as a rule of law had insisted on a reflection of at least 24 hours when an accused is produced from police custody while recording judicial confession. In the said report, the Apex Court observed as follows :-
"There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case.
However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded. In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter."
Although the accused was produced from police custody for the first time before the Magistrate, the latter however, did not consider it prudent to remand him to judicial custody for a day prior to recording of confessional statement. He also did not inform the accused that he would not be remanded to police custody if he had declined to make confession. These two circumstances in the factual matrix of the case strongly weigh against the voluntariness of the confession and I am of the opinion that a mere half an hour reflection and that too in the court premises was not sufficient in the facts of the case to erase out any oppressive influence which may have prevailed in the mind of the appellant while in police custody immediately prior to the making of confession.
The ratio in Shankaria vs. State of Rajasthan [(1978) 3 SCC 435] and Devi Singh vs. State of Rajasthan [(2005) 10 SCC 453] cited on behalf of the State are factually distinguishable.
In Shankaria vs. State of Rajasthan (supra), the accused was in judicial custody from 12th June, 1974 to 14th June, 1974 prior to recording his confession after keeping him in segregation for fifteen minutes the confession was recorded. Under such circumstances, the Apex Court observed as follows :-
"Thus considered, Shankaria had, as a matter of fact, about 38 to 40 hours in judicial custody, immediately preceding the confession and this was rightly considered sufficient to secure freedom from fear or influence of the Police to him (Shankaria)."
No such buffer by way of judicial custody had intervened between the appellant was produced in court and his recording of judicial confession after a mere half an hour contemplation in the instant case.
Similarly, in Devi Singh vs. State of Rajasthan (supra), the appellant was in judicial custody from 31.07.76 to 02.08.76 and thereafter the confessional statement was recorded after a contemplation period of two hours.
The aforesaid authorities are thus of little assistance to the prosecution as in the present case the appellant had been produced from police custody before the Magistrate and without assuring him that he would not be remanded to selfsame custody if he chose not to confess, the confession was recorded in post- haste manner after keeping the appellant in segregation for only half an hour.
I fail to appreciate what prompted the Magistrate to act in such haste when he was called upon to record a judicial confession which, if believed, could be the sole ground to convict the appellant. Apart from the aforesaid procedural infirmities, I find it difficult to rely on the truthfulness of the confessional statement also. Appellant confessed to have committed the crime along with one Ram Pujan Chowdhury who was discharged in the instant case. He stated that Ram Pujan Chowdhury had throttled his daughter while he held her legs. Thereafter, his wife was also throttled to death. Confessional statement is partly exculpatory putting the blame primarily on Ram Pujan Chowdhury in motivating him to participate in the aforesaid crime. That apart, it is claimed that both the victims were killed by throttling. Evidence of post-mortem doctor (PW13) shows that the child died due to an incised injury on the right side of her chest, whereas Fulbanti died due to shock and asphyxia as a result of ante mortem and homicidal drowning. P.W.13 did not find any marks of injury on the throat of either of the victims wholly improbabilising the confessional statement of the appellant.
Under such circumstances, I am constrained to conclude not only was the confessional statement recorded in utter disregard of procedural safeguards but the manner and course of commission of crime as stated therein is not corroborated by the medical evidence of post-mortem doctor (P.W.13) as to the cause of death. Hence, I choose not to give any credence to the confession of the appellant.
Apart from the confession, the prosecution has strongly relied on the evidence of P.W.2, brother of the victim to prove that the appellant had taken his wife and daughter to his house on 13th June, 1993 and thereafter they went missing and was finally found dead. Analysis of his evidence shows that the appellant took his wife and daughter from his house to the residence of the appellant on 13th June, 1993. On the other hand, P.W.9 claimed that he saw the appellant taking his wife and daughter to his residence from that of P.W.2 five days prior to the day on which he submitted the letter to P.W.2 i.e. 20th June, 1993. If the version of P.W.9 is to be believed then the appellant had taken his wife and daughter to his residence on 15th June, 1993 and not on 13th June, 1993 as claimed by P.W.2. P.W.8, another witness claiming to support the aforesaid fact is completely silent as to the date on which the appellant was seen with the victims walking down the road from the residence of P.W.2. Even evidence of P.W.7 that the appellant had taken his wife and daughter on the next day of Salish to his home does not inspire confidence as there is nothing on record to show that he was present at the home of P.W.2 when the appellant allegedly took the victims therefrom to his own residence.
Hence, I am unwilling to rely on the sole version of P.W.2, brother of the victim, to come to a firm conclusion that the appellant had taken his wife and daughter from her parental home to the matrimonial home on 13th June, 1993, as alleged.
The letter received by the appellant from P.W.5 has also not been proved beyond doubt. Firstly, a photocopy of the said document was produced. Though P.W.s 9 & 10 admitted their signatures thereon, P.W.5, the author of the said document doubted the copy produced in court and stated no duplicate had been prepared from the original document. It is also doubtful when the said document (Exbt-4) was received by P.W.2. While in FIR he stated that he received the letter on 21st June, 1993, in court he claimed that he had received the letter on 20th June, 1993. There is no whisper of the discovery of the dead body of the child in the contents of Ext-4 and it is unclear why even after receiving the letter either on 20th/21st June, 1993, the appellant waited for one or two days before meeting the members of the club. On the other hand, evidence has come on record from P.W.10 that young children in the locality while playing had discovered the body of Chameli on the bank of Kulik river on 22nd June, 1993. If such evidence is given due credence, the prosecution story that on receiving the letter from P.W.5 suspicion of P.W.2 had been aroused and upon searches the dead bodies were recovered appears to be an afterthought and was concocted only to justify the recovery of the dead body of Chameli which took place fortuitously on 22nd June, 1993 by local children, as aforesaid. Subsequently, on 25th June, 1993 the dead body of the other victim namely, Fulbanti was recovered from a jungle under Hemtabad Police Station at some distance from the place where the body of the child was recovered. These facts, therefore, do not establish beyond doubt exclusive access of the appellant to the victims at or about the time when they suffered homicidal death. In view of such fact, it is not possible to come to a definite conclusion of guilt of the appellant merely on the uncorroborated evidence of P.W.2 that he had taken his wife and daughter to the matrimonial home on 13th June, 1993 and thereafter, their bodies were recovered at different places on 22nd and 25th June 1993 respectively.
It is nobody's case that the victims had been done away within the four corners of the matrimonial home. Time of death of the victims has also not been specifically stated by the post-mortem doctor (P.W.13) and hence, it is wholly unsafe to come to a conclusion that they had been murdered on 13th June, 1993 on their way to the matrimonial home from the residence of P.W.2.
For the aforesaid reasons, I am of the opinion that the conclusion of guilt of the appellant in the aforesaid factual matrix would essentially hinge on a number of surmises and conjectures which needless to mention cannot take the place of proof beyond reasonable doubt in a criminal trial.
Accordingly, I am inclined to extend the benefit of doubt to the appellant. Conviction and sentence of the appellant are set aside.
The appeal is allowed.
The appellant shall forthwith be released from custody upon executing a bond to the satisfaction of the trial court after six months from date in terms of section 437A of the Code of Criminal Procedure.
The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action.
Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.) AB/RP/sdas/akd