Supreme Court - Daily Orders
Sk. Kamal vs State Of West Bengal on 26 November, 2015
Bench: Fakkir Mohamed Ibrahim Kalifulla, S.A. Bobde
ITEM NO.101 COURT NO.7 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No. 1185/2008
SK. KAMAL Appellant(s)
VERSUS
STATE OF WEST BENGAL Respondent(s)
(With office report)
Date : 26/11/2015 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
HON'BLE MR. JUSTICE S.A. BOBDE
For Appellant(s) Mr. Vijay Panjwani, A.O.R.
For Respondent(s) Mr. Joydeep Mazumdar, Adv.
Mr. Parijat Sinha, A.O.R.
UPON hearing counsel the Court made the following
O R D E R
For the reasons stated in the signed order, the appeal fails and is dismissed.
[KALYANI GUPTA] [SHARDA KAPOOR]
COURT MASTER COURT MASTER
[SIGNED ORDER IS PLACED ON THE FILE.] Signature Not Verified Digitally signed by Madhu Bala Date: 2015.12.22 15:01:54 IST Reason: IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1185 OF 2008 S.K. KAMAL ….. APPELLANT VERSUS STATE OF WEST BENGAL ….. RESPONDENT O R D E R This appeal is directed against the Division Bench judgment of the High Court at Calcutta dated 12th July, 2006 passed in Criminal Appeal No. 79 of 1996 in and by which the Division Bench finding no merit in the appeal preferred against the conviction and sentence imposed on the appellant for the offence under Sections 302 and 201 IPC dismissed his appeal. The appellant was imposed with a sentence of life along with a fine of Rs. 5,000/- for the offence under Section 302 and imprisonment of two years for the offence under Section 201 and both the sentences were to run concurrently.
Criminal Appeal No. 1185 of 2008
2. The case of the prosecution as portrayed before the courts below was that a complaint was preferred on 29th August, 1990 by P.W.1 Anila Sarkar, the mother of deceased Jitni/Nurjahan at Ratua Police Station alleging that her daughter was married to the appellant 12/13 years ago and that for the past more than 3/4 years he was not able to tolerate her and was torturing her. It was also alleged that the deceased was missing for the past three days prior to the complaint and that the appellant must have been responsible for her disappearance. P.W. 1, while tendering her evidence before the Court, the later part of her allegation was not affirmed and she turned hostile namely, as regards the alleged killing of the deceased by the appellant.
3. Based on the complaint Exhibit P1 preferred by P.W.1, P.W. 16 conducted the investigation and based on the admissible portion of his confession proceeded to a mango grove belonging to one Abdar Ali where the body of the deceased was recovered from an unused well in the presence of P.Ws. 8, 9 and 14 where it was found buried. The Inquest was held on the spot and the body was sent for post-mortem. The Doctor PAGE NO.2 OF 9 Criminal Appeal No. 1185 of 2008 who examined the body of the deceased namely, P.W. 15, carried out the post-mortem on identification by P.W.8 Constable, opined as under: “Probable time of death was within 2/3 hours after intake of night meal before 5-6 days. In myopnion, cause of death was due to the effect of the homicidal throttling”. There was a suggestion put to P.W. 15 that the autopsy held by him was not on the body of Nurjahan but was on some other female corpse which was duly denied by P.W. 15.
4. The trial Court as well as the High Court noted the circumstances which led to the death of the deceased wherein it was found that the appellant and the deceased who was his second wife were living together along with first wife and the children belonging to both the wives, that admittedly the deceased Nurjahan was missing 4/5 days prior to 29 th August, 1990, that there was no complaint at the instance of the appellant nor was there any attempt made by him to search for the whereabouts of his missing wife, namely, the deceased, that based on Exhibit 1 FIR lodged by P.W. 1, P.W. 16 apprehended the appellant and at his instance, and along with PAGE NO.3 OF 9 Criminal Appeal No. 1185 of 2008 P.Ws. 8,9, 10 and 14 went to the mango grove where an unused well was located, that based on the appellant’s further information the exact place of the well was located and the body of the deceased was recovered in the presence of P.Ws. 9, 10 and 14.
5. The Doctor P.W. 15 confirmed the homicidal death of the deceased and in the light of the above circumstances found proved the guilt of the appellant in the killing of the deceased was held as proved. When we perused the judgment of the Courts below, we find that the above sequence of circumstances have been cogently narrated by the Courts below and there was no acceptable contra evidence or explanation from the appellant to dislodge any of the links in the circumstances which were found established against him. He did not examine anyone on his side, though there was a defence put forth on behalf of the appellant that the deceased was living a wayward life, that, she had a husband prior to the marriage of the appellant and that she also had a paramour. In the absence of any such defence evidence placed before the Court, we are also convinced that the circumstances found proved against the appellant PAGE NO.4 OF 9 Criminal Appeal No. 1185 of 2008 formed a chain which had every link leading to the ultimate conclusion establishing the guilt of the accused.
6. The learned counsel for the appellant Mr. Vijay Panjwani, placed reliance upon the decision reported in Bahadul @ Ghanshyam Padhan v. State of Orissa 1979(4) SCC 346, Trimbak v. The State of Madhya Pradesh AIR 1954 SC 39, Mohmed Inayatullah v. The State of Maharashtra (1976) 1 SCC 828 and Abdul Sattar v. Union Territory, Chandigarh 1985 Suppl. SCC 599 to contend that the alleged recovery at the instance of the appellant did not fall within the specific provisions contained under Section 8 or 27 of the Evidence Act and, therefore, reliance placed upon the said circumstances by the Courts below was not justified.
7. In the judgment reported in Bahadul's case (1979) 4 SCC 346, it was held as under in paragraph 4:-
“In these circumstances, therefore, we are not in a position to rely on he judicial confession. As regards the production of the tangia by the accused before the police, the High Court seems to have relied on it as admissible under Section 8 of the Evidence Act. As there is nothing to show that the PAGE NO.5 OF 9 Criminal Appeal No. 1185 of 2008 appellant had made any statement under Section 27 of the Evidence Act relating to the recovery of this weapon hence the factum of recovery thereof cannot be admissible under Section 27 of the Evidence Act. Moreover, what the accused had done was merely to take out the axe from beneath his cot. There is nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it. In these circumstances, the mere production of the tangia would not be sufficient to convict the appellant. For the reasons given above we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. The appeal is, accordingly, allowed, the conviction and sentence imposed on the appellant are set aside and he is acquitted of the charges framed against him. The appellant is directed to be released forthwith.”
8. When we perused the said paragraph, we find that this Court had specifically noted as to how there was nothing to show that accused concealed the weapon in a place which was known to him and no one other than the accused had the knowledge. The facts thus noted in the said judgment is clearly as distinguishable to the facts of this case where we have noted that the body of the deceased was concealed in the spot namely, the unused well in the mango grove and but PAGE NO.6 OF 9 Criminal Appeal No. 1185 of 2008 for the revealing of the said information by the accused appellant, it would have been next to impossible for the prosecution to unearth body from that place. Therefore, the said judgment is of no assistance to the appellant.
9. The next judgment relied upon by the learned counsel was reported in Trimbak's case supra, that was a case regarding the discovery of stolen articles and we find no scope to apply anything stated in the said judgment with reference to Section 411 to the facts of this case. As far as the judgment reported in Mohamed Inayatullah's case, learned counsel relied upon paragraph 16-18 of the said judgment. Here again, it pertains to the concealment of stolen articles and in the facts of that case it was claimed by the prosecution that the accused in that case led the Police party to the Musafirkhana where the stolen drums were lying. Noting the said facts, this Court held that keeping drums in the Musaffirkhana which is an open place where musaffirs that is travellers frequently visit and therefore there was no question of concealment in order to state that it was disclosed at the instance of the PAGE NO.7 OF 9 Criminal Appeal No. 1185 of 2008 appellant. We are, therefore, not able to apply the said decision also to the facts of this case.
10. The last of the judgment relied upon by the learned counsel is Abdul Sattar's case. Reliance was placed upon paragraph 4 wherein again it was noted in the judgment that the place from where the things were recovered was a public place accessible to the people of the locality and that it was very difficult to believe that things were concealed in such a way that it could not have been noticed by anybody else other than the accused. In the light of such specific facts noted in those judgments, this Court held that application of Section 27 was not made out.
11. On the other hand, in the case on hand, the body of the deceased was buried in an unused well in a mango grove and the identification of the location of the said place could not have been made but for the specific information furnished by the appellant. We are, therefore, convinced that the reliance placed upon by the Courts below to rely on the said circumstance which was one of the very vital circumstances in the chain of circumstances to prove PAGE NO.8 OF 9 Criminal Appeal No. 1185 of 2008 the guilt of the appellant was justified. We, therefore, do not find any merit in this appeal. The appeal fails and is dismissed.
…...................................J [FAKKIR MOHAMED IBRAHIM KALIFULLA] …...................................J [S.A. BOBDE] NEW DELHI NOVEMBER 26, 2015.
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