Calcutta High Court (Appellete Side)
Sk. Shanawaz @ Lakaya @ Md. Shanawaz vs State Of West Bengal on 20 December, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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. 372 of 2015
Sk. Shanawaz @ Lakaya @ Md. Shanawaz
-Vs-
State of West Bengal
For the appellant : Fazlur Rahman
For the State : Mr. Arun Kumar Maiti, learned A.P.P.,
Mr. Sanjoy Bardhan
Heard on : 20.12.2018
Judgment on : 20.12.2018
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated
30.03.2015and 31.03.2015 passed by the learned Additional District & Sessions Judge, Fast Track, 2nd Court, Alipore, South 24 Parganas, in connection with Sessions Trial No. 1(04)08 corresponding to Sessions Case No. 82(01)08 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer 2 rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment for six months and also convicting for committing offence under Sections 363/377/201 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and also pay a fine of Rs.10,000/-, in default, to suffer simple imprisonment for two months more. All the sentences to run concurrently.
Prosecution case:-
The prosecution case as alleged against the appellant is to the effect that on 12.11.2007 the victim, a minor boy aged about seven years had gone out with the appellant and thereafter had returned home at 11.20 a.m. Thereafter, around 11.30 a.m., the child again went out but did not return. Around 1.00 p.m. his mother tried to telephone the appellant from her mobile phone. When she finally contacted the appellant, the latter told her that he had returned the child sometimes earlier. Over this issue, a general diary was lodged at Tiljala Police Station on 12.11.07. Finally on 15.11.2007 at 8.00 a.m. parents received information that dead body of a child was recovered in a bag from the back side of Landmark hotel on E. M. bypass. P.W.1, father of the child and others went and identified the body as that of his son. A written complaint was lodged at Tiljala Police Station resulting in registration of Tiljala Police Station Case No. 356 of 2007 dated 15.11.2007 under Sections 302/201 of the Indian Penal Code 3 for investigation against unknown miscreants. In the course of investigation appellant was arrested and his handwriting was compared with the writings on the visiting cards and a slip of paper which were recovered from the bag containing the body of the victim. Post mortem was conducted over the body of the victim which disclosed penile penetration of his anus.
Proceeding before the trial Court:-
In conclusion of investigation, charge-sheet was filed under Sections 363/302/377/201 of the Indian Penal Code against the appellant and the case, being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of the Additional District & Sessions Judge, Fast Track, 2nd Court, Alipore, South 24 Parganas for trial and disposal. Charges under the aforesaid provisions of law were framed and in the course of trial prosecution examined 18 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order convicted and sentenced the appellant, as aforesaid. Hence, the present appeal.
Arguments at the Bar:-
Learned Counsel appearing for the appellant submitted that the evidence of the prosecution witnesses with regard to the disappearance of 4 the child on 12.11.2007 are inconsistent with one another and contradicted by the F.I.R. lodged by P.W. 1, father of the victim in consultation with his mother, P.W.2. It is submitted that the general diary lodged after the child went missing has not been exhibited in the instant case. Explanation of the appellant that he had left the child at the staircase of the house cannot be taken to be an incriminating circumstance in view of the fact that the child had earlier accompanied him and thereafter had been returned home as would appear from the F.I.R. It is also argued that P.W. 6 is an unreliable as his version is not corroborated by P.W. 1, father of the victim. Hence, the "last seen" theory has not been proved beyond doubt in the instant case. Relating to the recovery of the dead body of the victim he argued that the general diary recorded by P.W. 7 with regard to the discovery of the dead body from the pond has not been exhibited. Prosecution has illegally sought to shift the place of recovery. Inquest report showed that the body was recovered from the pond which is also corroborated by the independent witnesses, P.W. 4, 5 and 6. If that were so, it is highly improbable that the writings on the slip of paper and the visiting cards would be legible for comparison by hand-writing expert. Seizure list was prepared belatedly at the police station as would be evident from the deposition of P.W. 1 who had identified the body at Parama at I.C. and not at the spot. Hence, no 5 credence ought to be attached to the recovery of the visiting cards and slip of paper which is alleged to be in the hand-writing of the appellant.
Opinion of the post mortem doctor is based on mere surmises and cannot be the foundation of guilt of the appellant. As the incriminating circumstances are neither credible nor proved, the appeal is liable to be allowed.
On the other hand learned counsel for the State submitted that the evidence of P.W 2 that the victim had left the house after informing her that the appellant was standing downstairs and would take him to his residence is corroborated by P.W 6 who had seen the appellant with the victim soon thereafter. FIR cannot be an encyclopedia of all facts and in the present case cannot be used to contradict P.W 2 who is not the informant. It is also submitted P.W 1, father of the victim, was not present at the spot and contradiction between his deposition and that of P.W.2, the mother, cannot be a ground to disbelieve the prosecution case. On the other hand, evidence of P.W 6 an independent witness clearly shows that the appellant was seen in the company of the victim soon before his death and the appellant gave a false explanation that he had returned the victim at the staircase of the house. Dead body of the victim was recovered in a bag with visiting cards and slip of paper containing handwritings of the appellant. Opinion of handwriting expert and the post mortem doctor complete the chain of circumstances and the appeal is liable to be dismissed.
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Evidence on record:-
P.W 1 and 2 are the parents of the victim. P.W 1 deposed that 12.11.2007 was a day of political strike. He was at his residence till 11.30 a.m. Thereafter, he went to gossip with his friends. At about 1.30 p.m. he received a missed call from his wife in his mobile. He returned to his house and his wife told him that the victim had gone out with the appellant at about 12 noon to purchase stove pin and wire for cleaning utensils. Thereafter, he had not returned. His wife had given a missed call to the mobile of the appellant. But there was no reply. After 5/7 minutes his wife again gave a missed call. After some time the appellant came to their house. On query the appellant told her that he had left the victim near the staircase of the house. Thereafter, they started searching for the victim. On 15.11.2007 at about 8 a.m they received information that dead body of a boy in a VIP suitcase was found at Chapannatala (Barapukur) beside Bypass behind Landmark hotel. Hearing this, he along with others went to the spot. Local people informed that the police had taken away the dead body and, accordingly, they went to Parama IC under Tiljala P.S. He identified his son's body. He found a slip of paper wherein the name of his son and his name and address were mentioned. His wife joined him at the police station. She also identified the dead body. Thereafter, he lodged written complaint at the police station which was scribed by Riaj Laskar. He proved his signature on the written complaint (Ext 1). He put is signature on the inquest report (Ext 2). His son was kept in a suitcase wrapped with a black cloth. After opening the black cloth a written slip was found under the vest of his son. Name of his son was written in the slip. There was an 7 endorsement to send the dead body near Lalmasjid. P.W.1's name was also endorsed in the slip. They were written in English alphabets but in Hindi language. Police seized the slip under a seizure list. He proved his signature on the seizure list (Ext.3). Police seized the suitcase, visiting cards and other articles inside the bag. He proved his signature on the seizure list (Ext 4).
P.W 2 is the mother of the victim. She deposed that on 12.11.2017 her son was murdered. On that day at 11 am her son had gone to purchase a stove pin and wire from the grocery shop. Returning home her son told her the appellant was standing in the ground floor and he wanted to go out with the appellant to his house. Since her son did not return till 1.30 p.m, she gave a missed call to the mobile phone of the appellant. He did not reply. 15 minutes' later she again gave a missed call. Thereafter, the appellant came to her house and told her that he had left her son near the staircase of the house. They started searching for her son. In spite of search, he could not be traced out. A missing diary was lodged at the police station. On 15th November they received information from Parama IC that dead body of a boy kept in a suitcase was found near a pond at Chhapannatala. They rushed to the place of occurrence and identified their son's dead body.
P.W 6 deposed at about 11.30 a.m /12 noon when he and one Hanif were proceeding towards Bansbagan, they found the appellant with the victim. On the same day he heard a hue and cry in the locality at about 2.30 p.m. He told P.W 1 that he had seen the victim with the appellant. Few days later on 15.11.2007 dead body of the victim was recovered from a pond situated near Bypass just 8 behind Landmark hotel. After getting information, he along with father of the deceased went to the place of occurrence wherefrom the dead body had been recovered in a blue coloured bag wrapped with cloth from a pond by fishermen using net. The dead body was shifted to police station and thereafter to morgue. Police seized wearing apparels of the accused, visiting cards under a seizure list. He put his signature in the seizure list.
P.W 13 owns a grocery shop. He deposed on 12.11.2007 the appellant had come with one Janu to his shop to purchase stove pin and other utensils. Subsequently he heard that the body of the victim had been recovered in a box.
P.W 16 is the aunt of the victim. She is a reported witness. She deposed that she had heard the incident from P.W 2.
P.W 9 a neighbour claimed on 12.11.2007 the victim was missing and the appellant stated that he had left the victim at the downstairs of the house.
P.W 10 another neighbour deposed that the victim was missing from 12.11.2007 and subsequently his dead body was recovered.
P.W 4 and 5 deposed 3/4 years back police recovered blue coloured suitcase from the pond situated at the backside of the primary school in the village. After opening the bag dead body of a boy was recovered. They signed on the seizure list marked EXT 4/1 & 4/2 respectively.
P.W 3 carried the body of the victim for post mortem examination. He proved his signature on the dead body challan.
P.W 8 conducted post mortem examination over the body. He proved the post mortem report. (Ext 7). He also answered queries from the I.O and deposed 9 that death of the victim was between 72 hours to 48 hours before post mortem examination and within 4/6 hours of taking meal. Injuries in the post mortem report are sufficient to cause death in the ordinary course of nature. The injury in and around the anus are the indicative of anal intercourse prior to death.
P.W 17 and 18 are the investigating officers in the instant case. P.W 17 deposed on 15.11.2007 at 7.15 am he received an information from duty officer while he was on RT van duty that local people found a locked box stained with blood by the side of tank at EM Bypass under Tiljala P.S. He lodged a general diary being no. 1044 to that effect. He went to the spot and with the help of the local people he opened the box and found a male dead body aged about 7 years tied with iron chain. One person named Sk. Janu identified the dead body as his son who was missing since 11.12.2007. Janu went to the police station and lodged written complaint. He took up investigation in the instant case. He held inquest over the body of the victim (Ext 13). He seized one slip of paper written in English attached to the vest of the dead body under seizure list (Ext 3) and blue colour suitcase, some visiting cards kept inside the suitcase under another seizure list (Ext 4/3). He identified the suit case (Mat Ext 1). He sent the dead body for post mortem examination, visited place of occurrence, prepared rough sketch map with index, examined witnesses, arrested the appellant and subsequently handed over the charge of investigation to S.I. Subir Kr. Dhali (P.W
18) as per direction of Officer in Charge. In cross examination, he stated information was given by an unknown person over telephone to duty officer at 10 7.15 am. On the basis of general diary he had gone to the spot. FIR was lodged in the P.S between 8 a.m to 9.55 a.m. P.W 18 concluded the investigation in the instant case. He identified the articles which were seized in the course of investigation. He collected post mortem report. He made further queries to the autopsy surgeon after getting post mortem report. He sent the viscera and other alamats of the deceased to FSL department for chemical examination and collected FSL report (Ext 16) which was exhibited in the instant case under 294 Cr.P.C. He sent the specimen signature/hand writing and question documents for hand writing verification. He collected report of the handwriting expert (Ext. 11 and 11/1). He submitted charge sheet.
P.W 11 is the examiner of questioned document attached to QDB, CID, Government of West Bengal. He examined the questioned documents and the specimen hand writings and proved his report (Ext. 11 and 11/1). Findings:-
The most vital circumstance relied by the prosecution to bring home the guilt of the appellant is that the victim had left his residence with the appellant on 12.11.2007 around 11.30 a.m. and thereafter had not returned. This is coupled with an alleged false explanation of the appellant that he had returned the victim at the staircase of his house.
Let me examine whether the aforesaid circumstances have been proved beyond reasonable doubt in the light of the evidence on record. FIR in the instant 11 case was lodged on 15.11.2007 by P.W 1 after the recovery of the dead body of the victim. Immediately after the disappearance of the victim on 12.11.2007, a general diary being GD no 848 dated 12.11.2007 was registered. Prosecution did not produce the said general diary in the course of trial which would have unraveled the facts disclosed therein. However, in the FIR which was subsequently registered it was stated that the appellant had taken the victim out at 11 a.m and thereafter had returned him to his home at 11.20 a.m. Subsequently, the victim again left his residence and went missing. When queried by his mother, the appellant informed that he had already returned the victim earlier. If the explanation of the appellant is read in the backdrop of the case disclosed in the FIR, such explanation cannot, in my estimation, be treated as an incriminating one as the appellant had in fact returned the victim at 11.20 a.m. after having taken him out of his house. However, the prosecution case as depicted in the FIR has been given a complete go-by by P.W 2 in the course of her deposition. She claimed that on 12.11.2007 at 11 a.m. the victim had gone downstairs to buy grocery items alone and upon returning had left the house again stating that the appellant was waiting for him downstairs and he would accompany the appellant to the latter's residence. Such deposition is in clear contradiction to the first information report lodged by her husband P.W.1 in consultation with her after three days of the incident. In the first information report, there is no whisper of the child going to the grocery shop. On the other hand, it is alleged the child went out with the appellant and thereafter returned at 11.20 a.m. Subsequently, he again went downstairs and did not return. The 12 vital fact that the child had told her mother (P.W.2) while going out for the second time that the appellant was waiting for him downstairs is significantly absent in the first information report. That apart, the version of P.W.2 is wholly contradicted by her husband, P.W.1. P.W.1 deposed after he had left his residence at 11.30 a.m., his wife telephoned to inform him that their son was missing. When he returned home, his wife (P.W.1) told him their son had gone with the appellant to bring grocery items but had not returned. The appellant on query had claimed that he had returned their son at the staircase of their house. P.W.13, the owner of grocery shop, however, did not corroborate the version of P.W.1 & 2 and claimed that the child had come to the grocery shop with his father, P.W.1. Hence, the versions of the aforesaid prosecution witnesses with regard to the circumstances in which the child had left the house and had gone missing are contradictory to one another and wholly inconsistent with the version stated in the first information report. Learned counsel appearing on behalf of the State submitted that P.W.1 is the best witness with regard to the circumstances in which the child had left the residence and ought to be believed. She is not the F.I.R. maker and her version cannot be contradicted with the said document. In the factual matrix of the case, I find it difficult to accept the contentions advanced by the learned counsel appearing on behalf of the prosecution. It is admitted by P.W.2 that immediately after the incident she informed her husband, P.W.1 about the incident. However, version of P.W.1 with regard to the incident is clearly in contradiction to that stated by his wife in court. P.W.1 lodged the F.I.R. based on information which he derived from his wife. In this backdrop, 13 contradiction between the events narrated in the F.I.R. and the version of P.W.2 in court is a serious lacuna in the prosecution case and such inconsistency is relevant in terms of Section 11 of the Evidence Act as held in Ram Kumar Pande Vs. State of M.P., 1975 (3) SCC 815 (para 8 & 9).
In the face of such inconsistencies in the prosecution evidence relating to the disappearance of the child from his residence on 12.11.2007, the only evidence left with the prosecution to show that the appellant was last seen with the victim is that of P.W.6. P.W.6 deposed he had seen the victim with the appellant at Bansbagan at 11.30/12 noon. He also claimed at 2.30 P.M. there was hue and cry and he had joined the searched for the child. At that time, he narrated such fact to P.W.1. P.W.6's version, however, is not corroborated by P.W.1. That apart, we find from the evidence of P.W.1 & 2 that the appellant had participated in the search of the victim. If P.W.6 had seen the appellant with the victim, he would have definitely confronted the appellant with such fact which is singularly absent in his deposition. Hence, I find that the version of P.W.6 is most artificial and not corroborated by P.W.1. Accordingly, I consider it unsafe to rely on his evidence to come to the conclusion that the appellant was last seen with the victim. On the other hand, the conduct of the appellant in not running away from the place of occurrence but to join the search with the parents to find out the victim does not fit the prosecution case that he had kidnapped and sexually violated and killed the child. It has been contended that the appellant had held out a false explanation and thereafter wanting to cover his misdeeds he participated in the search of the victim. Ordinarily, such contention of the 14 prosecution may have been acceptable, however, in the facts and circumstances of the case, particularly from the sequence of events as narrated in the F.I.R. it appears that the appellant had taken out the victim around 11 A.M. on the fateful day and thereafter had returned him to his residence. In this backdrop, his stance that he had already returned the child is a plausible one unless it is proved that he again left with the child - a fact which is significantly absent in the F.I.R. and adduced for the first time in court by P.W.2. When a set of facts yield to two possible interpretations, one in favour of the accused is to be accepted and it cannot be said that the chain of circumstances unerringly point to the guilt to the appellant. In the light of the aforesaid discussion, I am of the opinion that the prosecution has not been able to prove beyond doubt that appellant was last seen with the victim immediately before the occurrence.
The other circumstances relied in the instant case are the recovery of a slip of the paper and visiting cards from the bag in which the dead body of the victim was found and that the writings in the slip of paper as well as on the visiting cards matched with the specimen handwriting of the appellant. There is discrepancy in the prosecution case with regard to the place from where the body of the victim had been recovered. P.W.17 deposed that the body had been recovered from the bank of the pond which is also reflected in the seizure list (Ext.4/3) prepared by him on 15.11.2017 at 10.35 A.M. However, in the inquest report (Ext.13) prepared by the said witness he has recorded the body of the victim was recovered from the water of the pond. It is important to note that P.W.17 was not an eyewitness to the recovery of the body. He received 15 information from duty officer while he was R.T. van duty relating to the recovery of the body and such information was diarised as Dairy No.1044. In cross- examination, he admitted that the duty officer had received telephonic information regarding recovery of the body from an unknown person. Production of Diary No.1044 is, therefore, most vital to establish the circumstances including the place where the dead body had been found. This general diary had not been produced in the course of trial clearly infracting the chain relating to the recovery of the dead body concealed in a bag. Furthermore, in cross- examination P.W.17 admitted that the seizure list was prepared much later at 10.35 hours after the F.I.R. was registered at the police station at 9.55 hours.
Hence, it is clear that seizure list was not prepared at the place of occurrence but at the police station after registration of the F.I.R. This fact is further reinforced by the evidence of P.W.1 who is a signatory to the seizure list. He deposed when he had gone to the spot the dead body had already been removed from the spot and had been taken to Parama Investigation Centre. The other seizure list witnesses, P.W.4 & 5 claimed that the body was recovered from the pond and not from the bank of the pond. They were signatories to the seizure list(Ex.4/3) relating to the seizure of wearing apparels and other articles from the bag. However, they are completely silent with regard to the recovery of slip of paper from the body of the victim which was seized under a different seizure list (Ext.3). No explanation is forthcoming why the slip of paper and other articles were not seized under a single seizure list. In the light of the aforesaid evidence on record, I am of the opinion that prosecution has not been able to establish with certainty 16 that the body had been recovered from the bank of the pond and not from the water of the pond. Trial judge has relied on the description of the place of recovery in the seizure list (Ext.4/3) which in the light of the aforesaid discussion, I find was belatedly prepared at the police station by P.W.7 who was not an eye-witness to the recovery. Even if one discounts the evidence of P.W.6 who deposed the body was recovered by fishermen from the pond since he came to the spot with P.W.1 after the body had been recovered, one cannot ignore the evidence of local people P.W.s 4 and 5 who deposed that the body was recovered from the pond itself. Inquest report (Ext.13) also endorses such fact. General diary No.1044 recorded at the first instance with regard to the information relating to recovery of the body was withheld by the prosecution. In these circumstances, I am constrained to observe that there is no clear evidence that the body had been recovered from the bank of the pond. On the other hand, evidence on record probabilises the recovery of the body from the pond itself since in the inquest report (Ext.13) it is stated that the body was recovered from the water of the pond and such fact appears to be corroborated by the independent witnesses, P.W.4 & 5. If the bag containing the body and other articles were recovered from the pond, the writings in the slip of paper or visiting cards allegedly found in the bag would not be legible and capable of comparison with specimen writings of the appellant. Furthermore, seizure of the slip of paper attached to the body has not been acknowledged by P.W.4 & 5. These facts create serious doubt in one's mind whether the visiting cards and the slip of paper were at all recovered from the bag containing the dead body, as alleged. When a case 17 is found on circumstantial evidence it is important to test the circumstances on the anvil of normal human conduct. Would an accused who seeks to surreptitiously dispose of a dead body in a bag, keep slip of paper and visiting cards containing his handwritings in the bag and risk his identification? Prosecution case based on such circumstance which is opposed to reasonable human conduct is most improbable and does not inspire confidence.
Hence, I am constrained to observe the prosecution has failed to prove beyond doubt that the body of the victim kept in a bag was recovered from the bank of the pond and that a slip of paper and visiting cards containing suspected handwritings were found inside the said bag. As the chain of circumstances relating to recovery of said documents containing suspected handwritings from the bag concealing the dead body are in serious doubt, I do not give credence to the opinion of the handwriting expert to bring home the guilt of the appellant.
In the light of the aforesaid discussion, I am of the opinion that the appellant is entitled to the benefit of the doubt.
Accordingly, I set aside the conviction and sentence imposed on the appellant.
Appeal is allowed.
Appellant shall be forthwith released from custody if not wanted in any other case, upon executing a bond to the satisfaction of learned CJM, South 24 Parganas which shall remain in force for a period of six months in terms of section 437A Cr.P.C.
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Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
I agree.
(Ravi Krishan Kapur, J.) (Joymalya Bagchi, J.) s.das/rkd/tkm