Calcutta High Court (Appellete Side)
Bamdeb Chakraborty @ Pintu vs The State Of West Bengal on 1 August, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
Item no. 159/RP/Aloke/Suvendu&PA
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Ravi Krishan Kapur
C.R.A. 5 of 2013
Bamdeb Chakraborty @ Pintu
-vs-
The State of West Bengal
For the appellant : Ms. Minoti Gomes, Adv.
Mr. Kalyan Kumar Bhattacharjee, Adv.
Ms. Aasia Khatoon, Adv.
For the State : Mr. Arun Kumar Maiti, ld APP
Mr. Sanjay Bardhan, Adv.
Heard on : 01.08.2018
Judgment on : 01.08.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 27.11.2012 passed by the learned Additional District & Sessions Judge, Fast Track Court, Kakdwip, South 24 Parganas in Sessions Trial No.2(2)08 arising out of Sessions Case No.4(7)07 convicting the appellant for commission of offences punishable under sections 364, 302 and 201 of the Indian Penal Code (IPC) and sentencing him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1000/-, in default to suffer further rigorous imprisonment for 6 months for commission of offence punishable under Section 364 IPC, to suffer rigorous imprisonment for life and pay a fine of Rs.1000/-, in default to suffer further rigorous imprisonment of 6 months for commission of offence punishable under Section 302 IPC and to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.500/-, in default to suffer further rigorous imprisonment for 3 months for commission of offence under Section 201 of the Indian Penal Code. All the sentences to run concurrently.
Prosecution case as alleged against the appellant is to the effect that 3.4.2007 at 7.30 P.M. Swapan Halder, the father of the victim Biswajit Halder was informed by his wife that his son had gone out to play around 4 p.m. and had not returned. Hearing this, Biswajit went out to search for his son and at Sitalatala More a tea stall owner, Kalpana Patra (P.W. 10) told him that she had seen the appellant taking his son in a bicycle towards Gangadharpur at 4.45 P.M. A rickshaw puller, Gourhari Das (P.W. 11) also corroborated such fact. He informed the matter to his brother-in-law Sandip Mondal (P.W. 14). Both of them went to Haribazar. Rampada Manna, a co-student of the victim, informed P.W. 1 the appellant had given Rs.1/- to his son while he was going to school. The appellant did not give any cogent answer when he was queried about the whereabouts of the victim. Written complaint was lodged by P.W. 1 resulting in registration of Kakdwip PS Case No.53 dated 04.04.2007 under Section 364 IPC. The appellant was arrested and upon interrogation he admitted his guilt and stated that he could show where he had thrown the dead body of the victim in the river. On 4.4.2007 the police party along with the appellant and others went to search the river and the dead body of the victim was found floating in the river. On further statement of the appellant a torn piece of saree, wearing apparels of the appellant and a bicycle were recovered from his residence. In conclusion of investigation, charge sheet was filed under Section 364/302/201 of the Indian Penal Code. The case was committed to the Court of Sessions and thereafter to the Court of Additional Sessions Judge, Fast Track Court, Kakdwip, South 24 Parganas. Charges were framed under the aforesaid provisions of law. The appellant pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 26 witnesses and exhibited a number of documents to prove its case.
The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial judge by judgment and order dated 27.11.2012 convicted and sentenced the appellant as aforesaid.
Ms. Gomes, learned Advocate appearing for the appellant argued that the circumstances relied on by the prosecution has not been proved beyond reasonable doubt. She submitted that the motive of crime has not been proved. Evidence of the prosecution witnesses with regard to the fact that the appellant was last seen with the victim suffers from various contradictions and/or inconsistencies. Evidence of P.Ws. 5 and 16 are inconsistent with one another. P.W. 5 does not acknowledge the presence of P.W. 16 at the time when the appellant was seen with the victim on the river bank. Identification of the appellant by the said witnesses in Test Identification Parade as well as in Court by the said witnesses is doubtful. The witnesses had seen the appellant when he had accompanied the police to the river on the next date. Therefore, the identification of the appellant in course of the subsequent test identification parade had little value. There was no light in the riverbed around 6.30 p.m. when P.Ws. 5 and16 claimed to have seen the appellant with the victim. Hence, their identification of the appellant in Court is extremely doubtful. She further submitted that in view of the evidence of P.W. 17 that the dead body was floating on the river which was in public view and that the said witness had shown the dead body to the police party, it is difficult to accept the prosecution case that the body of the victim was recovered pursuant to the leading statement of the appellant. She submitted that other articles recovered from the residence are articles of ordinary use found in every household and cannot be said to be an incriminating circumstance implicating the appellant. Accordingly she prayed for acquittal of the appellant.
On the other hand, Mr. Maity, learned counsel appearing for the State argued that the appellant was last seen carrying the victim in his bicycle towards Gangadharpur around 4.45 p.m. Subsequently they were seen sitting on the river bed at 6.30 p.m. and thereafter the appellant was seen coming back alone from the river bank. On the next day pursuant to the statement of the appellant the body of the victim was recovered from the river. The torn piece of saree, that is, the ligature used for strangulation and other personal articles including the cycle were also recovered pursuant to the leading statement of the appellant. Hence, the prosecution has been able to prove its case beyond reasonable doubt.
From the arguments advanced at the bar it is clear that the case is based on circumstantial evidence. On an analysis of the evidence on record it appears that the prosecution has relied on the following circumstances to bring home the guilt against the appellant:
(a) On 03.04.2007, on the way to school the victim told his friend, Rampal (P.W. 4) that appellant gave him Rs. 1/- and that they would go on a trip in the afternoon;
(b) Around 4.30 p.m. on the same day, the victim had gone out of his residence to play;
(c) Appellant was seen carrying the victim in his bicycle towards Gangadharpur around 4.45 p.m.;
(d) They were seen sitting on the river bed at 6 p.m. Half an hour later the appellant was seen returning from the river bed alone and left in his bicycle;
(e) On queries, by Swapan Halder, father of the victim, appellant did not give cogent reply as to the victim's hereabouts;
(f) In police custody, the appellant made a statement that the he could show the place where he had thrown the dead body;
(g) Pursuant thereto, body of the victim was recovered from the river on 04.04.2007;
(h) Pursuant to further statement of the appellant, a torn piece of saree (the ligature), wearing apparels of the appellant and bicycle were recovered on 05.04.2007;
(i) P.W. 20, post mortem doctor deposed that the victim had died due to strangulation.
Let me examined from the evidence on record where the aforesaid circumstances have been proved and establish the guilt of the appellant or not.
P.W. 1, Swapan Halder is the father of the victim. At around 7.30 p.m. he heard from his wife that his son, Biswajit, had gone missing since 4.30 p.m. He went out in search for his son and was informed by one Kalpana Patra, owner of a Tea stall at Sitala more and one Gourhari Das (P.W. 11), a rickshaw puller that the appellant was seen carrying his son towards Gangadarpur in a bicycle. He was also informed by Rampada Manna who is a fellow student of the victim that in the morning of that day victim had told him that appellant had given Rs.10/- to the victim and that they would go out in a trip in the afternoon. He asked the appellant about the whereabouts of his son but appellant did not give cogent reply as to his whereabouts. He lodged FIR against the appellant on the next date marked as Ext. 1 which was written by Dibendu Pradhan.
P.W. 3, Swapna Halder is the mother of the victim. She deposed around 4/4.30 p.m. her son had gone out to play and did not return. She informed her husband at about 7.10./7.15 a.m. over telephone. She deposed that her son studied at Harbasar Primary School at Class-II. The appellant was the private tutor of his son. Her husband was an employee of a liquor shop. The appellant's father used to consume liquor. The appellant had asked her husband not to supply liquor to his father.
P.W. 4, Rampada Manna is a fellow student of the victim. He deposed that on the date of occurrence at about 10 a.m. he and Biswajit went to School. Biswajit told him that appellant had given one rupee to him and that they would go out for a trip in the afternoon. He made a statement before the Magistrate. He proved his signature on the statement.
P.W. 10, Kalpana Patra is a Tea stall owner at Sitala Mandir. She deposed that 1½ years ago at about 4.45 p.m. she saw that one Tapan Mondal came searching for his grandson. She knew the grandson of Tapan Mondal. He was her neighbour. She told Tapan that she had seen somebody carrying his grandson on a bicycle moving around the road towards east.
P.W. 11, Gourhari Das is a rickshaw van puller. He deposed that he saw the appellant carrying the son of Swapan on a bicycle and they were proceeding towards east at about 4/4.30 p.m. He narrated the matter to Swapan Halder (P.W. 1). In cross-examination, he denied the suggestion that he did not know the accused. He said that there was only one person in the dock. He came to know the name of the son of Swapan on the following day of the incident. He could not say how many cyclists or vehicles he had seen on that day.
P.W. 19, Suman Samanta deposed that he is a student of Class IX. On 03.04.2007 at around 4.30/5 p.m. he was going towards Gobindarampur Natun Bazar with his private tutor Swapan Kumar Jana. He saw Pintu Da take Biswajit on his bicycle towards Gangadharpur. Biswajit was sitting on the carrier of the cycle. Biswajit told him that they were going for a trip. On the next morning he heard from his father that Pintu Da murdered Biswajit on the previous day. The house of his maternal uncle and that of Pintu are in the same locality so he knew Pintu. He recorded his statement before the Magistrate.
P.W. 5, Soma Ghorai stated that she knew Biswajit Halder. He died on 3rd April, 2007. On that day at about 6 p.m, she took her brother Panchugopal Ghorai beside Kalangini river to respond to nature's call. At that time she saw the appellant sitting with Biswajit on the bank of the river. The distance between that place and her house is about 50 feet. Subsequently, she returned home with her brother. 10-15 minutes later she again went to the river and found the appellant was coming from the river wearing a jeans pant and he was rubbing his face. His bicycle was kept on the bank of river. He looked suspiciously and left the place. On the next day the accused was brought under police escort. She saw the accused. She narrated the incident to the Magistrate. In cross-examination, she stated that her house is on the western side of the river. There are houses of 10/15 persons beside her house. While he was responding to nature's call her brother was on the opposite direction of the river. At that time she was looking at the field. Biswajit and accused were sitting on the bank facing the river. There is a single accused on the dock. She denied the suggestion that the father of the deceased had identified the accused to her.
P.W. 16, Somnath Gharai deposed that on 19th Chaitra 1414 B.S. about 6 p.m. while he and his younger sister Soma were gossiping by the side of bank of river Kalnagini they found two boys aged about 19 years and 9/10 respectively on the river bank. An hour later, he saw the older boy come from the side of the river in a bicycle. On the next day he saw police to take the said boy to the side of the river. He saw the boy with police on a motor boat searching something on the river. Around 2 p.m. police recovered the dead body of the minor boy. Subsequently, he heard the name of the boy aged about 19 years as Pintu. He identified Pintu in Court. He also heard the name of the minor boy was Biswajit.
In cross-examination, he stated Soma was his cousin sister. At the relevant time, there was no streetlight by the side of the river. It takes two minutes to go to the house of Soma from his house. He and Soma was gossiping in front of the house of the Soma.
P.W. 12, Shib Sankar Purkait, is a relation of Swapan Halder, P.W. 1. Biswajit Halder, son of Swapan Halder was missing since 03.04.2007. On 04.04.2007 in the morning Swapan communicated the incident to him. He went to Gangadharpur beside the river around 12 noon. He saw the accused being accompanied by the police. At the instance of the police, they boarded a mechanised boat in search of the deadbody of Biswajit. He accompanied the police along with the accused. At 1 p.m., dead body of Biswajit was found in the middle portion of the river. He identified the dead body of Biswajit. Photographs were taken of the dead body of Biswajit. The police performed inquest on the dead body. He put his signature in the inquest report.
P.W. 14, Sandip Mondal is the brother-in-law of Swapan. Swapan told him that Biswajit, his son, was missing. Thereafter, they went to search for Biswajit at Haribasar. Ramapada told him that on previous day Pintu gave one rupee to Biswajit and the latter had told him that they would go on a trip in the afternoon.
P.W. 15, Lakshman Das stated that on 04.04.2007 at 10.30/11 a.m., he heard Bamdeb telling the police that he had placed the body of the victim in the mud of the river ban. Police tried to recover the dead body of the victim by searching the river in a boat. Dead body was recovered from the middle of the river being shown by fishermen. He signed on the inquest report.
P.W. 17, Mangal Halder, deposed that on 19th Chaitra 1414 B.S. at about 12 noon he was catching fishing in the river Kalnagini on a boat. He found police personnel. They were searching for something. The police boat came near his boat and one policeman asked him whether he found any dead body floating on the river. Half and hour later he found the dead body of a person aged about 10/12 years floating in the river and he informed the police. He found the dead body with yellow shirt and blue half-pant. Thereafter the police recovered the dead body and conducted the inquest over the dead body. He signed on the inquest report. Police also took photographs of the said dead body.
P.W. 18, Amalesh Das is the pilot of the vessel used by the police to search the body of the victim in the river. Police recovered the dead body as shown by the public. He signed on the inquest report.
P.W. 20, Dr. Joydipto Chattopadhyay conducted post mortem examination on the victim and opined that the victim died due to strangulation by a ligature. He proved the post mortem report (Ext. 10).
P.W. 21, Tarun Kr. Kaji, is the photographer who took the photographs of the dead body and identified the photographs in Court.
P.W. 24, Chandan Kusum Das, is the investigating officer in the instant case. He deposed that on 04.04.2007 a written complaint from Swapan Halder was received by one S.N. Sarkar ASI of Police attached to Kakdwip Police Station. S.N. Sarkar filled up the formal FIR (Ext. 15). The case was endorsed to him for investigation by O.C. of the Police station. During investigation he went to the house of the complainant. He visited the place of occurrence Prepared rough sketch map (Ext. 16). He examined witnesses. He arrested the appellant. He interrogated and recorded his statement. To verify the statement he took the accused to Gangadharpur No. 1 Ghari near Aterswartala Burning Ghat. O.C., C.I., S.D.P.O. and others accompanied him. During interrogation the appellant made statement that he committed the murder by strangulating the victim with the help of saree and threw the dead body in the Kalnagini river. They searched the dead body in boat along with the accused and others. As per identification of the accused they recovered his dead body of the child which was floating in the river. P.W. 12 identified the dead body of the child. P.W. 21 took photographs of the dead body. He held inquest over the dead body (Ext. 6/5). He made prayer for adding sections 302/201 of I.P.C. in the case. He visited the second place of occurrence and prepared sketch map (Ext. 17). After recovery of body he recorded further statement of the accused. He sent the body for post mortem examination. Pursuant to the statement of the accused a torn piece of saree, his wearing apparels and bicycle were seized under the seizure list. He identified the said articles in Court. He also seized the wearing apparels of the deceased. He submitted charge-sheet.
P.W. 23, constable Ashok Bhattacharjee was present at the time of recovery of the dead body.
With regard to the seizure of torn piece of saree, wearing apparels of the appellant and the bicycle prosecution has relied on the evidence of P.W. 22, constable Mukti Ranjan Deb as well as evidence of P.Ws. 6, 7, 8 and 9, the local witnesses, who proved their signatures on the seizure list.
From the aforesaid evidence on record it appears that the prosecution case primarily rests on the fact that the appellant was last seen carrying the victim on a bicycle towards Gangadharpur around 4.30 p.m. Subsequently, he was seen sitting with the victim on the riverbed at 6 p.m. and half and hour later was seen coming alone from the riverbed and had left the spot in his bicycle.
With regard to the fact that the victim was seen on the bicycle of the appellant at 4.30 p.m. prosecution has relied on evidence of P.Ws. 10, 11 and 19.
Analysis of the evidence of P.W. 10 shows that she did not know the identity of the appellant and had not identified him either in the course of Test Identification Parade or in Court.
P.W. 11, a rickshaw van puller claimed he had seen the appellant with the victim proceeding east in a bicycle around 4.45 p.m. It is, however, unclear how P.W. 11 knew the identity of the appellant as no evidence was led to show that the appellant was known to the witness from before.
However, P.W. 19, Suman Samanta, a student of the school where the victim was reading had deposed that the appellant and the victim were travelling down the road around 4.30 p.m. He knew the appellant as he was a neighbor of his maternal uncle.
Even if one accepts the evidence of P.W. 19 as reliable, I find it difficult to rely on the evidence of P.Ws. 5 and 16 who were pressed into service to prove the presence of the appellant with the victim around 6 p.m. at the river bank P.W. 5 does not appear to be a truthful witness at all. She claimed that she knew the victim. However, in her statement before the Magistrate she categorically stated that she did not know the victim and had come to know of his identity only after his dead body was recovered. That apart, her narrations of the incident before the Magistrate and that in Court are contradictory to one another. While in Court she deposed that she saw the appellant and the victim sitting together, while she had gone to the river bank with her brother to respond to nature's call, before the Magistrate she claimed that she had gone to the river bank alone and witnessed such incident. Even if one glosses over such contradiction, it is highly unlikely that the victim could have identified the appellant on the riverbed as claimed by her.
Firstly, P.W. 5 does not acknowledge in Court that she had identified the appellant in the course of Test Identification Parade. On the other hand, she claimed that she she had seen the appellant on the next day when he came there with the police party. If that is so, then her identification of the appellant in the test identification parade which was subsequently held is of little consequence. The appellant was not known to P.W. 5 and she claims to have seen him in the riverbed at dusk, that is, 6.30 p.m. and there was no street light at the spot as narrated by P.W. 15. She has not narrated any special feature of the appellant either in her previous statement to the police or Magistrate or in Court which would have enabled her to identify the appellant. Furthermore, in cross- examination she admitted that she was looking towards field (not the river) while the appellant and the victim were facing the river. If her version is believed, she was looking in the opposite direction from the one the appellant was facing rendering it impossible for her to see his face in the dusk. Presence of P.W. 16 at the spot is not admitted by P.W. 5, although P.W. 16 claimed he was gossiping with P.W. 5 when he saw the incident. Further, version of P.W. 16 is rendered improbable as in cross-examination he admits that they were gossiping in front of the house of P.W. 5 which is at a distance of 50 feet from the riverbed. If that were so, then it is highly unlikely that in the dusk around 6.30 p.m. neither P.Ws. 5 nor 16 who were gossiping in front of the house of P.W. 5 could have identified the appellant on the riverbed when there was no sufficient light at the spot.
Hence, I find it difficult to accept the evidence of P.Ws. 5 and 16 with regard to identification of the appellant as the person who was sitting with the victim around 6 p.m. on the riverbed and that half and hour later he was seen returning alone from the river and leaving in his bicycle.
Failure to establish the aforesaid circumstance snaps the chain and breaches the nexus between the 'last seen theory' sought to be established by the prosecution and the time of death of the victim. It is also apposite to note here that P.W. 20, the post mortem doctor had not stated about the time of death of the victim rendering it impossible to establish a live link between the time when victim was last seen with the victim and his ultimate death.
Coming to the recovery of the dead body of the victim purportedly on yhe leading statement of the appellant in police custody, I find such version as narrated by P.W. 24 is not supported by other prosecution witnesses and other attending facts and circumstances of the case. Dead body was found floating in the middle of the river and was in public view. That apart, evidence of P.W. 17 unequivocally shows that the said witness identified the dead body to the police party. P.Ws. 15 and 18 also corroborated the fact that the dead body was discovered floating in the middle of the river and was shown to the police party by others and not recovered on the showing of the appellant.
In the light of such evidence on record, I find it difficult to accept the deposition of P.W. 24 that on the showing of the appellant the dead body of the victim was recovered.
Recovery of torn piece saree from the residence of the appellant on 05.04.2007, that is, the day after the recovery of the dead body ought to be taken with a pinch of salt. It is strange why the appellant who is allegedly admitted his guilt on the previous day remained silent on that day that he had secreted the ligature at his residence and came out with such statement on the next day only after the recovery of the dead body.
Moreover, nature of the ligature, that is, a torn piece of Saree is ordinarily available on every household and, therefore, I give little credence to the recovery of the aforesaid article from the residence of the appellant along with his wearing apparels and bicycle, etc. to come to a finding that it was the appellant who had committed the murder of the victim.
Finally, the motive of commission of crime has not been established. Although it has come from the deposition of P.W. 3 that there was some dispute between the appellant and Swapan, the father of the victim, with regard to selling of liquor to the appellant's father, I find it difficult to persuade myself to accept such circumstance as sufficient motive for the appellant to kill the victim, the son of Swapan, who was his student and wholly unconnected to such controversy. Even the evidence of Ramapada (P.W. 4) that the appellant had given one rupee to the victim in the morning of the date of the incident is not supported by P.W. 14 who claimed that such incident had occurred on the previous day.
For the aforesaid reasons, I am constrained to hold that the prosecution has failed to prove the circumstances relied upon by it beyond reasonable doubt and consequently the chain is not complete and does not establish the guilt of the appellant.
Accordingly, I set aside the conviction and sentence imposed upon the appellant. He shall be released from custody forthwith upon execution of a bond upon to the satisfaction of the trial Court which shall remain in force for six months in terms of section 437A of the Code of Criminal Procedure.
The appeal is, thus, disposed of.
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 be given to the parties upon compliance of all legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)