Calcutta High Court (Appellete Side)
Fatik @ Nasiruddin Sk vs The State Of West Bengal on 13 January, 2017
Author: Siddhartha Chattopadhyay
Bench: Sanjib Banerjee, Siddhartha Chattopadhyay
0IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
C.R.A No. 346 of 2006
Fatik @ Nasiruddin Sk.
-Vs.-
The State of West Bengal
Present :
The Hon'ble Justice Sanjib Banerjee
&
The Hon'ble Justice Siddhartha Chattopadhyay
For the Appellant: : Mr. Partha Sarathi Bhattacharyya, Adv.
For the State: : Mr. Subir Banerjee, Adv.,
Mrs. Kakali Chatterjee, Adv.,
Mr. Pratik Bose, Adv.
Heard concluded on : January 11, 2017.
Judgment on : January 13, 2017.
Siddhartha Chattopadhyay, J.:
The appellant calls in question the validity and legality of a judgment and order dated 28.02.2006 and 01.03.2006 passed by the Additional Sessions Judge, 2nd Fast Track Court, Jangipur, Murshidabad in Sessions Trial No. 8(4)04. The grievance of the appellant is that the learned Trial Court could not appreciate the evidence in its proper perspective and there are many omissions and contradictions in the testimonies of the witnesses, which have been lost sight of by the learned Trial Court. According to him, the impugned judgment is not sustainable in law or on facts. Learned Counsel appearing on behalf of the State has submitted that the learned Trial Court has considered all these aspects and after appreciating the evidence he has passed the judgment which does not require any interference.
2. The key factual aspects need to be revisited. Shorn of unnecessary details, the prosecution case in a capsulated form is that there was a love affair between the accused and the victim and they established a physical relationship. As a result, the victim conceived. The parents inquired from the victim and came to know that she had been impregnated by the accused. The accused was asked about the veracity of her statement and he admitted that the victim conceived due to such physical relationship. The parents asked the accused to marry the victim and the accused acceded to such proposal. Thereafter, the marriage took place and a Kabilnama was executed through a lawyer at Berhampur Court, but the victim was not accepted by her in-laws. So she had to reside in her parents' house. From time to time the accused came there and stayed with her. On 14.08.2003 she delivered a female child. The victim was abused by her in-laws and they hatched a criminal conspiracy to kill her. On 06.09.2003 the accused came to the house of the victim and had dinner there. They were seen together till 11 pm. In the night, the mother of the victim woke up hearing the child crying and she went to the room of the victim and could not find her daughter. In the early morning, she found the dead body of the victim near the bamboo bush of one Foroj Mondal and body was lying in a naked condition and there were marks of injuries on her neck and chest. Disclosing this ill-episode, the de facto complainant lodged the F.I.R. and set the law into motion.
3. In course of the investigation, Investigating Officer recorded the statement of the available witnesses under Section 161 Cr.P.C., collected the inquest report, prepared a rough sketch map with index, collected the post- mortem report and, after completion of the investigation, submitted a charge-sheet under Sections 302/120B of I.P.C. The learned Trial Court framed the charges under the aforesaid sections and the said charges were read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. It appears from the L.C.R. that the learned Trial Court recorded the deposition of the prosecution witnesses, examined the accused under Section 313 Cr.P.C. and, after hearing the arguments of both sides, convicted the accused under Section 302 of I.P.C.
4. At the time of argument, learned Counsel appearing on behalf of the appellant contended that the entire fate of the case rests on circumstantial evidence and particularly on the issue of 'last seen together'. There is no direct witness in this case. Therefore, it is the onerous duty of this Court to scrutinise the evidence very meticulously and to see if the entire chain of circumstances is established.
5. P.W. 1 in his evidence stated that on the relevant day the victim and the accused were seen in the house of the victim up to 11.30 pm. He also found the dead body of the victim, which was lying by the side of a bamboo bush. As a witness to the inquest and as the de facto complainant, he proved his signatures. In his evidence he never stated that the house of the victim was visible from his house. A sketch-map with index was prepared by the Investigating Officer but there was no mention of the names of the persons who reside in the vicinity of the house of the victim. Therefore, it was supposed to be established by the prosecution that this witness actually had the occasion to see the victim and the accused in the late night i.e. at 11.30 pm. In course of cross-examination, he stated that his house was adjacent to the residence of the mother of the victim. He also stated that there was a passage at the western side of the house of the mother of victim Saira. But the rough sketch map does not say so.
6. P.W. 2 corroborated the P.W. 1 to the extent that the accused off and on came to the house of the victim and on that day he was in the house of the victim till midnight. In his examination-in-chief he stated that he saw the accused taking his dinner and was gossiping with the victim till midnight. He was informed by the mother of the victim that dead body of the victim was lying inside a mango bush. As per P.W. 1 dead body was found in a bamboo bush and not in a mango bush. However, he was a witness to the inquest. He also could not establish as to how he could see the victim and the accused gossiping with each other.
7. P.W. 3 in her evidence stated that the accused took his dinner at 10 pm. and thereafter was he gossiping with the victim. In the early morning, the mother of the victim called her and one Firdousi. They found the dead body in a bamboo bush of one Foroj Mondal. In course of cross-examination she stated that she took dinner at or about 8 pm. According to her, she used to go to bed between 10 pm. and 11 pm. In her cross-examination she categorically stated that "it is fact that Saira was in love with Foroj Mondal." The name of the accused is Fatik @ Nasiruddin Sk. The prosecution never stated that Fatik @ Nasiruddin Sk is also known as Foroj Mondal. She further admitted that Fatik (accused) was all along residing in their village. She clarified her stand stating "I saw Fatik at the house of the victim up to 6 pm. for the last time." If we consider such evidence then her evidence-in- chief that she found the accused Fatik to take his dinner at 10 pm. does not hold.
8. P.W. 4 and also stated that she found the victim and the accused taking dinner and gossiping with each other up to 11 pm. From her evidence it does not transpire that she resides in the vicinity of the house of the victim. We have already stated that the rough sketch-map with index does not suggest that this witness was an immediate neighbour of the victim.
9. P.W. 5 was declared hostile. After being declared hostile, the prosecution had given him such suggestions which he turned down except the fact that the victim gave birth of a female child. In his cross-examination he stated that his house was about 50 cubits from the house of the victim. He found the victim gossiping with the accused at 8:30 P.M. The prosecution failed to encash any dividend from his such evidence.
10. P.W. 6 stated that at or about 2.30 am. he heard the mother of the victim was calling Asia and Firdousi. He came to know about the fact in the early morning that the victim and the accused were missing.
11. P.W. 7 is the mother of the victim. According to her, the accused took the baby from her and went to bed in a separate room. It was then 11 pm. Between midnight and 1 am, she heard the child crying and she went to the bedroom of the victim where she could not find the victim or the accused. So, according to her, it was between 12 midnight and 1 am that the victim was found missing. So far as the other witnesses are concerned, they claimed that the accused and the victim were found gossiping till or about 11 pm.
12. P.W. 8 also stated about the alleged gossiping of the accused and the victim up to 11 pm. She found the dead body at 4 pm. In course of her cross-examination, she stated that she did not tell the Investigating Officer that the accused had a love affair with the victim.
13. P.W. 9, P.W. 10 were not witnesses to the occurrence. P.W. 11 received the written F.I.R. by putting his endorsement. In course of his evidence, he stated that the Investigating Officer was dead. P.W. 18 had got the information over telephone from one Sish Md. and that dead body of his niece was found in the bamboo grove of one Hazarat Ali. The prosecution case is that the body was found in the bamboo bush of Foroj Mondal. There is nothing on record to show that Hazarat Ali is also known as Foroj Mondal. P.W. 15 was not a witness to the occurrence.
14. After analysing their such evidence, we find that there are enormous discrepancies in the evidence so far as the time is concerned. The post mortem report which is marked Ext. 5 speaks that the autopsy surgeon found rice like food material in the victim's stomach. Ordinarily, it takes about 4 to 6 hours to digest the food and thereafter it goes from the stomach to the intestine. But rice like food materials found in the stomach goes to suggest that the murder took place within 2 to 3 hours from the time of dinner. If they would have taken their dinner 9 pm. and they were found gossiping up to 11 pm, it was unlikely that rice like food would be available in the stomach of the victim. Some witnesses stated that at 10 am. the victim's mother came to know that victim and the accused were missing. Some of the witnesses stated that it was at or about 4 am, they found the dead body. Another witness stated that at 2.30 am. the mother of the victim reported the incident to them. In our considered view, the entire chain of circumstances has not been established beyond all reasonable doubt. The 'last-seen theory' can be applied only when there is minimum time gap between 'last seen together' and the probable time of death. If we consider all these aspects in their proper perspective, the only logical conclusion would be that the prosecution could not establish the chain of circumstances to the best judicial conscience.
15. Accordingly, we have no option but to reverse the conviction. The impugned judgment and order of conviction passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Jangipur, Murshidabad, is set aside. The appellant is set at liberty at once.
16. Let a copy of this judgment and the L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law.
17. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Siddhartha Chattopadhyay, J.) I Agree.
(Sanjib Banerjee, J.)