Calcutta High Court (Appellete Side)
Tarak Dey @ Dani vs The State Of West Bengal on 6 August, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
With
The Hon'ble Mr. Justice Jay Sengupta.
CRA No. 368 of 2002
Tarak Dey @ Dani
Vs.
The State of West Bengal.
For the appellant
: Mrs. Chandreyee Alam,
Mr. Subir Banerjee
For the State : Ms. Ayantika Roy.
Heard on : 04.05.2018 & 02.05.2018
Judgment on : 06.08.2018
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment and order of conviction and sentence dated May 8, 2002 and May 10, 2002 respectively, passed by the learned Sessions Judge IV Court, Nadia in Sessions Trial No. VII of May, 2001 arising out of Sessions Case No. 4 of April, 2001. By the impugned judgment, the appellant was convicted for commission of the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) and was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/- in default to suffer rigorous imprisonment for six months.
The prosecution case, in brief, is that on November 7, 2001, in the morning PW-1 received an information from the masons and other labourers that Tentul Ghosh, the victim, engaged by him as guard to look after his under construction house at holding No. 79/4 of Ward No. 3 at Sarkarpara, Nabadwip had been murdered. He then rushed to that place and found the victim lying dead on a cot beneath the staircase with fatal injuries and one blood-stained "sabol' was also found by the side of the said cot.
P.W.1 then went to the Nabadwip P.S. and lodged a written complaint (Ext.1) stating therein that on November 7, 2000 at night some building materials such as iron rods, bamboos, wooden planks were stolen away from the site of his said under construction building and on 10.11.2000 those materials were recovered from the house of appellant. In order to prevent repetition of any theft, he then engaged the victim as guard and due to his constant watch, the appellant's repeated attempts to commit theft of the building materials failed and for this the appellant used filthy languages towards the victim and also threatened him of dire consequences in presence of masons. So, he was of the firm belief that appellant had killed the victim as his repeated attempts of theft of the building materials were restricted by the victim.
On the basis of the above written complaint PW-18 started Nabadwip P.S. Case No. 4/2001 dated January 8, 2001 under Section 302 IPC against the appellant and the case was endorsed to PW 20 for investigation who then investigated the case and on completion of investigation submitted charge sheet being no. 31 dated 02.04.2001 under Section 302 IPC against the appellant.
On May 24, 2001 charge under Section 302 IPC was framed against the appellant and on denial of his involvement in the crime, trial commenced.
In order to prove the case, prosecution examined 20 witnesses and also produced and proved the written complaint, FIR, seizure list, rough sketch map, inquest report, postmortem examination report,FSL report and in addition to that one 'sabol', cot, bed, pillow etc. and thereafter on completion of trial and after examination of the appellant under section 313 of the Code of Criminal Procedure( hereinafter referred to as Cr.P.C.), the impugned judgment was passed.
It was submitted by Mrs. Chandrayee Alam, learned Advocate appearing for the appellant that there was no eye witness to the incident in question and the entire case is based on circumstantial evidence but the chain of circumstances on which conclusion of guilt was drawn was not complete and the alleged extra-judicial confession reportedly relied on by the prosecution is not admissible in evidence nor the alleged recovery of stolen articles of the complainant from the possession of the appellant was proved by any cogent evidence. According to Mrs. Alam prosecution has failed to prove the charge of murder against the appellant beyond all reasonable doubts.
It was submitted by Mr. Subir Banerjee, learned Advocate appearing for the State that the appellant was in the habit of stealing construction materials from the under construction building of the complainant and once stolen building materials of the complainant was recovered from his possession for which he gave an undertaking not to do such act in future but he did not reform. He also submitted that in order to prevent such theft complainant then engaged the victim as guard which the appellant did not like and started threating the victim as also the laboures of the complainant who were working there and ultimately committed murder of the victim which he also confessed before P.W.8 and P.W.9.According to Mr. Banerjee, prosecution had been able to complete the chain of circumstances which established the guilt of the appellant in causing the death of the victim.
We have considered the submissions advanced by learned counsels appearing for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses and the materials on record for examining the propriety of the impugned judgement.
It is evident from the evidence on record that one Tentul Chosh engaged by P.W.1 to look after his under construction building at premises no. 79/4 of Ward No. 3 at Sarkarpara, Nabadwip died at the said premises on January 7, 2001 and his death was unnatural. From the evidence of the autopsy surgeon (P.W.19) and the PM report (Ext.8), we find that during postmortem examination over the dead body of the victim, Tentul Chosh, P.W.19 found crushed and lacerated injury over right side of scalp of the deceased measuring 5" x 4" x bone deep with right parietal occipital and temporal bone fractured with brain matter coming out and in his opinion death was due to shock and hemorrhage as a result of the said injury which was ante mortem in nature and such injury may be caused by heavy blunt substance like iron rod, sabol etc. However, during cross-examination by the defence he admitted that such injury may be caused if a man falls from high place with the head downwards on a hard substance and did not agree to the suggestion that such injury may be caused only by hammer. He also admitted that he could not give any confirmed opinion as to whether the injury was homicidal or accidental. He also did not agree to the suggestion put to him that such injury may be caused only by iron hammer. Furthermore, from the serological report (Ext.10) it appears that even the origin of the blood-stain found on the sabol or the blood group could not be determined because of disintegration.
Learned court below took into consideration the evidences of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.7, P.W.8, P.W.9, P.W.10, P.W.11, P.W.12, P.W.13 and P.W.14 besides the evidence of the doctor and the investigating officer to arrive at a conclusion that the prosecution has been able to complete the chain of circumstances to establish that it was the appellant who committed murder of the victim and accordingly held him guilty of the offence punishable under Section 302 of the Indian Penal Code and sentenced him.
Admittedly none of the witnesses examined by the prosecution are the witnesss to the occurrence and the entire case is based on the circumstantial evidence. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of the accused. The chain of circumstance should be of a conclusive nature and must be complete and most clearly point to the guilt of the accused.
So the first circumstances alleged against the appellant is that he used to steal building materials from the under construction house of the defacto complainant and once stolen articles were recovered from his possession and he even gave undertaking to that effect and in order to prevent such theft defacto complainant engaged the victim as guard whom appellant used to threat with dire consequences.
According to P.W.1, in December 2000 some articles bamboo, iron rod and wooden plates were stolen from his house for which he lodged diary at the P.S. and thereafter got information that those stolen articles were in the house of Tarak Das, the appellant and then they recovered those articles from his house and the appellant gave a written assurance that he will return the stolen articles and will not do such wrong in future. P.W.2, P.W.3 and P.W.4, who reportedly worked in the house of the P.W.1 as masons, also claimed that the appellant used to steal away bamboo rod, wooden plate etc. from the under construction house of P.W.1 which were subsequently recovered from the house of the appellant and the appellant gave an undertaking to that effect but from their evidence on record it is evident that none of them were witness to the alleged recovery from the house of the appellant nor they were the signatories to the undertaking in question. Interestingly not a single scrap of paper was produced with regard to the reported theft and subsequent recovery of any such stolen articles from the house of the appellant and/or any such undertaking given by the appellant. During cross-examination P.W.1 even could not say the date of alleged theft or number and date of the GDE reportedly lodged at the P.S. nor any document was produced to the effect. Even P.W.15 and P.W.16, the witnesses to the alleged recovery of stolen articles of the complainant from the possession of the appellant and his reported undertaking, did not support the prosecution story.
It is, however, evident from the evidence of above witnesses that victim was engaged by P.W.1 to look after his house under construction. According, to the above witnesses appellant did not like such engagement of guard and as such he used to threaten them as also the victim but admittedly no such complaint was lodged at the P.S. nor the same was reported to any body else. Not a single independent witness of the village was examined by the prosecution to substantiate the allegation of reported threat by the appellant to the victim or anyone else as claimed by the above witnesses. Even date, time and place of alleged threat by the appellant was not disclosed by the witnesses to show it's proximity with the death of the victim. It was also not the case of the prosecution that on the relevant date appellant and the victim were last seen together. That being the position, we are of the view that prosecution has failed to prove the story of giving threat to the victim by the appellant because of his engagement as guard to look after the under construction house of the complainant. Therefore, this link in the chain of circumstances is not established by the prosecution.
The other circumstances which the prosecution has tried to prove against the appellant is the extra judicial confession made by the appellant. In this regard prosecution has relied upon the evidences of P.W.8, P.W.9, P.W.10 and P.W.11.
It is well settled proposition in the matter of acceptability of extra judicial confession that if such extra judicial confession is made voluntarily and in a fit state of mind and the evidence of extra judicial confession is a reliable, trustworthy and beyond reproach and passes touchstone of credibility it can be accepted and can be the basis of a conviction. It is a very weak piece of evidence and requires appreciation with great caution. Appellant had denied making any such extra judicial confession.
Both P.W.8 and P.W.9 have deposed that on the relevant night at about 3.30 a.m. while they had been to Nabadwip bus stand, appellant came there and demanded liquor and told them that he had killed the victim by hitting him on his head by a sabol. According to P.W.8, he drives a hackney carriage and used to carry goods from from Nabadwip bus stand to different places while according to P.W.9 he works as 'kuli' at Nabadwip bus stand and he starts his work at 3.30 a.m. Admittedly, they did not report to the police or to anyone else on getting the news of murder which appears to be very strange. Defence disputed the above claim of these witness by putting suggestion to them that on the relevant date and time they did not go to the Nabadwip bus stand nor appellant went there nor he made any confession before them with regard to killing of the victim and they have deposed falsely. During cross-examination P.W.8 admitted that he has neither any paper nor any licence to show that he has hackney carriage. P.W.9 reportedly gave hazira as 'kuli' there but nothing was produced before court nor anyone of that place was examined to support the above claim of these witnesses that they were at all present at Nababadwip bus stand on the relevant day and time as claimed by them. Even the I.O. admitted that he did not seize any such licence with regard to hackney carriage or hazira khata of 'Kulis'. The above statement of P.W.8 and P.W.9 that appellant made confessional statement before them on the relevant night and that they narrated the same to the I.O. did not find corroboration from P.W.20, the I.O. The presence of P.W.8 and P.W.9 at the Nabadwip bus stand where the appellant reportedly went there at such late hours in the night and reportedly made confession before them find no such mention in the evidence of the I.O. According to the I.O., on January 13, 2001 at 5.05 hours he apprehended the appellant from Sarkarpara more and he was assisted by some rickshaw pullers and during interrogation appellant confessed that he committed the offence of murder. Admittedly, he did not pray for recording of confessional statement of the appellant by any Magistrate nor any explanation was given as to why he did not make any such prayer before the Magistrate for recording such confessional statement knowing fully well that any such confession made to a police officer is not admissible in the eye of law. P.W.10 and P.W.11 claimed to be the rickshaw pullers and witnesses to the alleged confession by the appellant. According to them, about 5/7 days after the death of the victim at about 5 a.m. while they along with P.W.12 were sitting in their rickshaw at Sarkarpara more they saw that police came there and arrested the appellant and during interrogation appellant confessed that he murdered the victim. But such claim of P.W.10 and P.W.11 did not find support from P.W.12. P.W.10 nowhere stated that they assisted police in apprehending the appellant as claimed by the I.O. We also find some material contradictions in the language uttered/spoken by them in respect of the alleged extra-judicial confession made by the appellant. In view of the above we do not consider that it would be safe to accept their version in this respect. Having considered the above evidences before us, we are not satisfied about truthfulness of the above witnesses regarding alleged extra-judicial confession and their evidence leaves an element of doubt. The learned court below did not take into consideration the above facts of this case to apply the settled principle of law.
Another circumstance which the prosecution has tried to prove against the appellant is that he was absconding from his house on the relevant night but mere absconding by itself does not necessarily lead to a firm conclusion of guilt unless corroborated from other circumstances. It is a settled legal position that mere abscondence can not be taken as a circumstance to draw an adverse inference as it would go against the doctrine of innocence. Reference may be made to the decision of Sk. Yusuf vs. State of West Bengal, reported in (2011) 11 Supreme Court Cases 754.
Thus, we find that the circumstances from which the conclusion of guilt is to be drawn have not been fully established.
In view of the foregoing discussions, we find that the prosecution has failed to establish the chain of circumstances which could link the appellant with the crime. In this background we are of the considered opinion that learned court below has fell in error in coming to the conclusion that the prosecution has established its case based on circumstantial evidence beyond all reasonable doubt.
In the result appeal succeeds and is allowed. The appellant is given benefit of doubt and acquitted of the charge of offence punishable under section 302 I.P.C. The judgment, order of conviction and sentence dated May 8, 2002 and May 10.2002 respectively, passed by the learned Additional Sessions Judge IV Court, Nadia in Sessions Trial No. VII of May, 2001 arising out of Sessions Case No. 4 of April, 2001 are hereby set aside. Appellant is in jail. He be released forthwith unless his detention is required in any other case.
Copy of this judgement along with the lower court records be sent down to the trial court immediately by special messenger for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.) I agree.
(Jay Sengupta, J.)