Calcutta High Court (Appellete Side)
Sudarshan Das @ Lal Thakur @ Kashinath ... vs The State Of West Bengal on 29 September, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Samapti Chatterjee
CRA 46 of 2011
Sudarshan Das @ Lal Thakur @ Kashinath Das & others
... Appellant
vs.
The State of West Bengal
... Respondent
For the Appellants : Mr. Soubhik Mitra
Mrs. Anasuya Sinha
Mr. Avishek Sinha
For the Respondent : Mr. Sanjoy Banerjee
Heard on : 16.09.2014
Judgment on : 29.09.2014
Nishita Mhatre, J.:
1. Being aggrieved by the judgment and order of the Additional Sessions Judge, 1st Fast Track Court, Sealdah, 24 Parganas (South) in Sessions Case No. 12(05)07 the appellants have filed the present appeal. They have been convicted under Section 302 read with Section 34 of the IPC and have been sentenced to undergo imprisonment for life and to pay of ` 5,000/-(Five Thousand only) and in default of payment of such fine a further period of imprisonment for six months.
2. The victim Gokul Panda was a priest, who earned his livelihood by going to various places to offer puja. He was the regular priest in a factory owned by the complainant Subal Chandra Dey Dhara. He was permitted to stay in the factory premises as he had no other place of residence. The victim would leave the premises at 5.00 a.m. and return by 9 O'clock at night. On 29th January, 2007 Subal Chandra Dey Dhara received information from his employee that Gokul Panda was laying under the tin shed of the courtyard of the factory. He was informed that the victim had bleeding injuries on his ears. The police were informed and they came to the spot and removed the victim to the hospital. However, on reaching the hospital the Doctor informed the police that the victim had died. The police then seized some articles which were lying in the factory near the spot where the victim was found, including a wine bottle, two glasses, one kettle, one steel bowl, a napkin and a shawl. The complainant, that is the owner of the factory, lodged the complaint and the First Information Report was registered against the unknown persons. Later during the course of investigation the appellants were arrested. Appellant No. 1 is also a priest who would conduct the puja at various places everyday. Appellant No. 2 is his friend while appellant No. 3 is his brother-in-law. Appellant No. 1 and 3 used to live in the same premises.
3. In order to bring home the charge against the appellants the prosecution examined 20 witnesses. It must be mentioned here that there were no eye-witnesses to the incident and, therefore, the case is based entirely on circumstantial evidence.
4. PW 1, the complainant, has reiterated what is stated in his complaint. According to him, there were many marks on the neck of the victim. He has disclosed in his evidence that a duplicate key to the factory premises was in the custody of the victim and no outsider was allowed to enter the workshop.
5. PW 2 is the landlord of appellant Nos. 1 and 3 has been examined in order to establish that the appellants normally returned home at 8 p.m. while on 28th January, 2007 they returned at mid-night.
6. The case of the prosecution is mainly based on the testimony of PW
3. He was an employee of Nabanna Hotel. He claims to have seen the victim offer puja in their hotel which was usually performed by the appellant No.1. He has spoken about a quarrel occurring between appellant No.1 and the victim. However, he has admitted that since both the appellant No. 1 and the victim were speaking in Oriya, he was not able to understand the words spoken during the altercation. This evidence according to the prosecution establishes the motive of the Appellant No.1 to kill the deceased.
7. PW 4 is the Doctor, who was present when the victim was brought to the NRS Medical College and Hospital on 29th January, 2007. He has stated that the victim was dead when he was brought to the hospital. The witness has conceded that he had neither mentioned any identification marks of the deceased nor injury marks on the body of the victim in his report.
8. PW 5 is a constable who took the body to the autopsy surgeon and identified the same before him.
9. PW 6 is another important witness for the prosecution as it has tried to prove the theory of "last seen together" through this witness. He was a shop-keeper who had engaged the victim to perform the puja every day. He has stated that on 28th January, 2007 at about 8 p.m. the victim was in his shop having tea. At that point of time appellant No. 2 called out to the victim who then left with him, promising to return in half an hour. PW 6 waited for the victim till 10.30 p.m. as they were to attend a wedding. Since he had not returned PW 6 closed his shop and thereafter, he went to the factory to call the victim. However, the factory was also closed. PW 6 claims to have seen the appellants walking out of a lane which was a 3 minute walk away from the factory. He asked them about the victim and they replied that they had no knowledge about his whereabouts.
10. PW 7 has drawn the map of the place of occurrence while PW 8 has conducted the inquest.
11. PW 9, who was an employee from the electric company, has deposed that there was no power cut on the premises of the factory between 8 p.m. on 28th January, 2007 and 1.00 p.m. on 29th January, 2007.
12. PW 10 is the photographer posted in the Detective Depart at Lal Bazar.
13. PW 11 is the brother of the owner of the workshop. He has corroborated the statement made by his brother, PW 1. He was also present when the police arrived at the place of occurrence. He has mentioned the names of some of the persons who were present at the spot. PW 11 is also a witness to the seizure of the articles found in the premises near the victim.
14. PW 12 is a witness to the recovery of a black plastic packet which the appellant No. 1 allegedly brought out from a dustbin and handed over to the Police Officer. This recovery was made on 4th February, 2007 in the morning. The plastic packet contained one full-sleeve old shirt with one button missing and one button hole was torn. According to the witness, it was a pink checked shirt with some reddish spots all over the shirt. The witness has identified the shirt which had the third button missing, in the Court.
15. PW 13 is also a priest. He had no personal knowledge about the death of the victim. He claims that on 28th January, 2007 when he was having his meal at Nabanna Hotel, PW 3 informed him that there had been an altercation between the victim and appellant No. 1 in the morning. However, this statement is inadmissible.
16. PW 14 is an employee of the factory owned by PW 1. He has stated that when he reached the factory in the morning at 9 a.m. as usual to open the gate he found the gate was open. He saw the victim lying injured in the tin shed in the factory premises. He is a witness to the seizure of some of the articles which were found in the tin shed which was occupied by the victim in the factory premises. He claims to have seen a mark on the victim's neck and noticed him bleeding from the ear. On 4th February, 2007 he was a witness to the seizure of a pant and a shirt at the instance of appellant No. 1. The witness claims that the shirt was light pink in colour and checked. According to this witness, the seizure was made from a vat at a little distance from the factory.
17. PW 15 is the Autopsy Surgeon. He has mentioned the injuries that he found on the victim as follows:
i) One abrasion 1"x ½" being present over right temporal region just 1" away from the outer angle of the right eye.
ii) One abrasion 2½"x ½" placed over right chin along the lower margin of the ramus of the mandible and just lateral to the mid point of the mandible and just below the right angel of mandible.
iii) One abrasion ½"x ½" being placed over left Ala of the nose.
iv) Multiple linear abrasion reasonably two nail scratch marks present over left side of the neck just below the angel of the mandible, 6 in numbers covering an area of 2½" and the size of the scratch marks varies from 1 ½" mm to 3 mm with negligible breadth.
v) Defused bruise 3"x 2" placed below the left angle of the mandible over the upper part of the neck of the sterno-cleido masteroid muscle.
vi) Multiple linear abrasions 2 in numbers present, reason being nail scratch marks measuring 3mm x 3 ½ mm in size with negligible breadth and placed very closely to each other.
vii) One oval shaped deep bruise 2" x ½" placed just below the right angle of the mandible.
The cause of death given by the Doctor is manual strangulation of the victim. He has opined that the injuries could be caused due to manual strangulation or by finger nails. Death could also have been caused by pushing or falling on a blunt surface. He has conceded that he has not mentioned the approximate time of death of the victim nor had he mentioned the incident of the rigor mortis. He has also opined that no finger marks were seen on the victim.
18. PWs 16, 17 and 18 are all Officers from the Forensic Science Laboratory. PW 16 has stated that no poison could be detected in the viscera of the deceased. There was no presence of alcohol or any toxic substance in the empty glass bottle which was seized from the premises where the victim was found. PW 17 submitted the report regarding the examination of traces of blood on some of the items recovered from the victim's residence. There was insufficient blood and, therefore, it could not be analysed. PW 18 spoke about receiving some articles for analysis including one full-sleeve shirt which had two buttons missing.
19. PW19 is a Serologist. He has stated that the blood-stained clothes sent for analysis indicated that the stains were of 'O' blood group.
20. PW 20 is the Investigating Officer. He has spoken about the recovery of a pink checked full-sleeve shirt wrapped in a black polythene packet from their dilapidated room with an asbestos shed. The third button of the shirt was missing and it had some red stains on it. He has stated that he was not able to find a Doctor immediately in Beliaghata where the victim was found lying injured. In order to give him immediate medical attention, the victim was admitted to the hospital. The witness has admitted that the Dog Squad failed to assist him in his investigation.
21. Considering the evidence on record it is apparent that the prosecution has not been able to prove the chain of circumstances which lead to the unmistakable conclusion that the appellants were responsible for the victim's death. The evidence on record establishes that the victim was permitted to stay in the tin shed in the factory premises of PW 1. He had a duplicate key which had been given to him by PW 1. He routinely entered the premises late at night and left from there early in the morning when the factory was closed. The evidence on record also indicates that no outsiders were permitted into the factory premises. The day the victim was found by PW 14 lying injured in the factory premises, he also discovered that the main gate of the premises was open. There were no signs of a forced entry into the premises. The only inference which one can draw is that it was the victim who had left the gate open.
22. The prosecution has tried to implicate the appellants by relying on the evidence of PW 3. He was an employee of Nabanna Hotel where appellant No.1 would perform puja. Appellant No. 1 was displaced on 28th January, 2007 by the victim who performed puja in the hotel on that date. PW 3 claims to have heard an altercation between appellant No. 1 and the victim. However, he has candidly admitted that since they spoke in Oriya, he was unable to understand them. The prosecution has tried to suggest that this replacement of appellant No. 1 by the victim was the motive for the former to kill the victim.
23. The next circumstance which the prosecution has relied on to implicate the appellants is that PW 6, had last seen the victim with the Appellant No.2. This witness had a shop near the victim's residence. He had seen appellant No. 2 calling out to the victim while the latter was having tea at his shop. This happened at around 8 p.m. The witness has stated the victim did not return to his shop although he had agreed to do so after half an hour since they were to attend a marriage together. The other circumstance on which the prosecution has relied is that PW 2, the landlord of appellant No.1 and 3, had seen them enter the premises on 28th January, 2007 after mid-night. This was contrary to their usual practice of returning home by 8 p.m.
24. Considering the aforesaid circumstances, in our opinion, there is no unbroken chain which can be deciphered leading to the unmistakable conclusion that it was the appellant who killed the victim. On the other hand, the victim's time of death has not been established. He was found dead in the morning on 29th January by an employee of the factory. Therefore, although PW 6 had seen the victim last together with appellant No. 2 at around 8 p.m., it would not necessarily mean that the appellant No. 2 was responsible for his death. The gap between the time when they were last seen together and the time when the victim was found injured is far too long. Furthermore, the PW 3 had heard the victim and appellant No. 1 quarrel. However, this happened in the morning of 28th January, 2007. If indeed, such a quarrel had taken place, it is unbelievable that appellant No. 1 would have been invited by the victim to his residence as suggested by the prosecution. There is no dispute that it was only the victim who had duplicate key of the premises. There was no evidence of any person breaking in to the premises. Merely because the appellant Nos. 1 and 3 returned home late at night contrary to their normal practice, it cannot lead to the inference that they were responsible for the victim's death.
25. The seizure of the articles also does not strengthen the case of the prosecution. The articles which have been seized from the residence of the victim indicated that they were stained with blood. However, that quantity was not sufficient to ascertain the blood group. The blood group of the bloodstains on the clothes which were recovered has been found to be 'O'. However, there is no material on record to prove that this blood group was of either the victim or the appellants. There is nothing on record to connect the appellants to the crime.
26. It is well-settled that suspicion cannot give rise to a conviction. The learned Counsel for the appellants has relied on the judgments in the case of Hanuman Govind Nargundkar and anr. v. State of Madhya reported in AIR 1952 SC 343 and Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan reported in (2013) 5 SCC 722 to support his submission that the appellants have been wrongly implicated.
27. Mr. Sanjoy Banerjee, learned Counsel appearing for the State, has argued that the motive for killing the victim was that the appellant No.1 had lost his livelihood because the victim had started conducting the puja in the Nabanna Hotel. He has submitted that appellant No. 1 was obviously threatened by the victim and, therefore, had a motive to kill him. We are not able to accept this argument. Pujas are performed daily by most of the people in the Beliaghata area and there is no dearth of places where a priest could attempt to pursue his livelihood. Therefore, merely because the appellant No. 1 was displaced by the victim on one day in Nabanna Hotel, it cannot lead to the inference that this was a sufficient motive to kill the victim.
28. Mr. Banerjee, learned Counsel for the State, has also argued that the injury sustained by the victim suggested that there was more than one person who was responsible for the assault. This argument also cannot be accepted because the Doctor has stated that the death occurred due to strangulation. There is no evidence of any rope being recovered. If the case was one of throttling the victim then there ought to have been finger marks on the neck of the victim. However, the Autopsy Surgeon opined that there was no such finger marks.
29. Thus, it is difficult to accept the case of the prosecution. It is trite that if a conviction to be based on circumstantial evidence, the chain of circumstances must unmistakably lead to the only conclusion that the accused were responsible for the crime. We have found that the circumstances in this case have no connection. There is no link between them and, therefore, they do not establish that the appellants are guilty of the offence.
30. The Judgment and order under appeal is set aside and quashed. The sentence and conviction of the appellants is also set aside. The appellants are acquitted of the offence punishable under Section 302 read with Section 34 of the IPC.
31. They shall be released immediately, if not required to be detained in any other case.
(Samapti Chatterjee, J.) (Nishita Mhatre, J.)