Calcutta High Court (Appellete Side)
Ismail Kapasi vs The State Of West Bengal on 26 November, 2018
Author: Jay Sengupta
Bench: Md. Mumtaz Khan, Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And
The Hon'ble Justice Jay Sengupta
C.R.A. 40 of 2005
Ismail Kapasi
Versus
The State of West Bengal
For the appellant : Mr. Md. Sabir Ahmed
.......Amicus Curiae
For the State : Mr. Saswata Gopal Mukherjee
.......Public Prosecutor
Mr. Ayan Basu
Mr. Saryati Dutta
.....Advocates
Heard on : 29.06.2018, 02.07.2018, 06.07.2018, 09.07.2018,
10.07.2018, 13.07.2018 and 11.10.2018
Judgment on : 26.11.2018
Jay Sengupta, J.:
1. This appeal is directed against a judgment and order of conviction dated 11th October, 2004 and sentence dated 12th October 2004 passed by the Learned Additional Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Kolkata in Sessions Trial No. 3 (May), 2003: Sessions Case No. 118/2002 thereby convicting the appellant for committing an offence under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5000/-, in default to suffer rigorous imprisonment for three months.
2. On 3rd June, 2000 at about 19:55 hours, PW 3 lodged a First Information Report under Sections 302 and 394 of the Penal Code against unknown accused alleging looting of articles from his brother's flat and murder of his brother's wife Fatema Md. Hossein Burtanwalla. The de facto complainant stated that he along with his family members resided in a flat on the second floor of the house at premises no. 24, Pollock Street, Kolkata- 700001. His elder brothers Md. Hossein and Moiz resided with their respective family members in separate flats on the third floor of the house while his youngest brother Fazlu Hossein Burtanwala resided with his family on the top floor of the house. There were tenants on the ground floor. All the four brothers dealt in crockery business in Kolkata. The victim's married daughter Tahera (PW 20) resided in Maharashtra. The couple had a maid-servant Hafiza Bibi (PW 27) working in their flats for the last fifteen years. The victim could not walk properly due to a physical problem. Usually she used to keep the entrance door of the flat open during day time. PW 17's son Parvez (PW 14) used to work in the shop of the victim's husband. The said Parvez had told the victim's husband that he would not come to work on 3rd June, 2000 as he was to visit his in-laws' house outside Kolkata. Every day all the brothers and their sons used to leave their flats for their shops by 9:00 hours. So was the case on the fateful day. Being a Saturday the de facto complainant and his son, as usual, returned to their flat at about 18:00 hours. At about 19:00 house the daughter-in-law (PW 4) of Muiz Bhai, another brother, came to his flat and reported that she heard sound of water in the bathroom of the victim and feared that if it continued to fall, then on the next morning there would be a scarcity of water. On hearing this, the de facto complainant went to the third floor and saw the entrance door of the victim's flat open. Upon not getting any response after calling, he entered the flat and saw articles lying scattered on the cot of the bedroom as well as on the floor. Almirahs were found ransacked. When he reached the drawing room he saw the victim lying with severe bleeding injuries on her head on the floor and the adjoining bathroom. Her brain matters were found lying scattered. A big iron chopper and a knife both stained with blood were lying in the bathroom. The victim appeared dead as she did not respond to calls. Another blood stained knife was found on the floor of the bedroom. Empty jewellery box, vanity bag, etc. were lying scattered. He immediately came down and raised alarm. He also informed the matter to police through the Additional Commissioner of Police (I) over phone. In the meantime the victim's husband came back. Police too came and started investigation.
3. Mr. P.P. Acharya, the Learned Executive Magistrate, held inquest over the dead body of the victim on 4th June 2000 at 15:30 hours at the police morgue. As per his report (Ext. 25) he found several injuries on the dead body, which are given as under:-
(i) Deep cut injury (fracture) at the left side of head, face, cheek, right side of forehead, chin, lowerlip, right ear, nose, forehead.
ii) Right side cheek left side chin, 13 abrasion marks at left side shoulder left hand (5), one cut mark at left wrist.
iii) 4 cut marks at fingers of left hand, abrasion mark at left thumb, (illegible) abrasion at left palm, left side hip joint.
iv) (8) left side back of the chest, left abdomen, right elbow, cut mark at right wrist, abrasion at left upper arm, cut mark at right fingers, right shoulder abrasion of the back, right side abdomen, right hip joint.
PW 18, the post mortem doctor conducted the examination over the dead body on 4th June 2000 at 15:45 hours. He found about 42 injuries on the dead body. According to him death was due to effects of the injuries, ante mortem and homicidal in nature. After completion of investigation, a charge- sheet was submitted. Charge was framed against the appellant for commission of an offence under Section 302 of the Penal Code. Since the appellant pleaded not guilty, trial commenced. The prosecution examined as many as 28 witnesses to bring home the charge. The defence case was mainly a denial of the prosecution case. In his examination under Section 313 of the Code, the appellant tried to explain a few circumstances appearing against him.
4. After carefully perusing the evidence adduced in this case, it appears that PW 1 was the police photographer. He took 9 photographs. In the cross- examination, he stated that he saw the grill gate of the second floor closed. PW 2 was the police plan-maker. On 05.06.2000, he made a rough sketch map of the place of occurrence and the surroundings (Ext 10) and on the next day, he made the final sketch map at the police station.
5. PW 3 was the de facto complainant of the case and a brother of the husband of the victim/deceased. He supported the facts he had stated in the First Information Report. He deposed that police came to the spot at 20:00 hours. He saw a blood-stained white shirt at the place of occurrence (Ext 12). He identified the iron rod, the shirt and the knives seized. In the cross, he stated that the appellant was a nephew of the victim. The appellant's father used to be a partner in the business. The appellant was ousted from his school for stealing. A police case was also started against him for attempting to rape someone when he was about 16/17 years old. Earlier, they had a case with the appellant's father, which ended in a compromise. A suggestion was given that they had turned the appellant's father mad. PW 3 heard that the police arrested the appellant after 2 days. He also heard that the appellant's father passed away in an asylum. He submitted that the victim had love and affection for the appellant. The appellant used to visit her quite often. PW 3 further deposed that Parvez (PW
14) took leave at 14:00 hours. He stated that the appellant's father had filed a title suit in 1995 claiming that he had not received any share in the business. Tashnin (PW 4) did not complain to the victim directly about overflowing of water as she used to respect the victim. She rang the door bell, but none responded. She did not enter in fear of being scolded as the victim might have been sleeping. PW 3 did not hear the sound of water falling himself. He further deposed that he stood outside to protect the room as asked by the police. The police twice asked everyone to go out.
6. PW 4 was the daughter-in-law of another brother, who had heard the sound water falling in the victim's bathroom and first complained to PW 3. She deposed that they had gone out and returned only at 18:00 hours. She heard the sound of water falling in the victim's bathroom. She deposed that she rang the bell twice. Her mother-in-law suggested that she told this to PW 3. She stated that she went to the ground floor after telling this to PW 3 and within 2 minutes after her coming back, she heard PW 3 shouting.
7. PW 5 was a brother-in-law of the victim and the father-in-law of PW 4. They stayed in the 3rd floor. He was a seizure list witness for the shirt and the iron rod. In his cross, he admitted that the police took out the Mat Ext 1 from inside the flat and said that it was recovered from there.
8. PW 6 was the husband of the victim/deceased. PW 3 told him about the incident. He deposed that the victim was suffering from arthritis and could not walk properly. In the cross-examination, PW 6 admitted that there was a litigation between the brothers and the appellant's father. The appellant's father died, but he did not know whether that happened in an asylum. The appellant's mother also died. Hafiza (PW 27) was the maid servant working in their house. Her son Parvez (PW 14) had left their shop where he was working at 14:00 hours.
9. PW 7 was another brother-in-law of the victim. He was staying in a flat in the fourth floor of the house. He was a seizure list witness for the sample of blood collected by the police. In his cross-examination, he admitted that the sound of water flowing from the victim's flat could not be heard in his flat.
10. PW 8 was a friend of the family of the victim. He went to the house at 21:25/2:30 hours and remained there till 23:00 hours. He did not enter the flat. He was a seizure list witness for the seizure of knife, chopper, blood, pillow cover, etc. In the cross-examination, he admitted that he did not go inside the bedroom. He went to the terrace directly.
11. PW 9 used to know the victim's husband. He reached the house at 21:45 hours and remained there till 1:30 hours in the night. He was a seizure list witness for the seizure of towel, bed sheet, burkha, chopper, knife, rod, etc. The police had brought all the alamats to the verandah.
12. PW 10 was the Sub-Inspection of Police who recorded the GDE about information from Lalbazar. He went with force. He made some seizures including chopper, knife, etc. In the cross, he stated that he had prepared those seizure lists. He left at 2:00 hours in the night. Then PW 28 came. He did not mention in the seizure list about any hole in the upper part of the chopper.
13. PW 11 was another friend of the victim's husband. He was a seizure list witness for some 'balas'. PW 12 too was a seizure list witness for the 'balas'.
14. PW 13 was the owner of a puffed rice shop near the appellant's residence. He deposed that on 06.06.2000 at about 20:05 hours, he saw police entering the appellant's residence along with the arrested appellant. Police recovered a shirt and a pant with blood stains. Upon a request by the police, PW 13 had accompanied them to the third floor of the building. He was a witness to the seizure of the shirt and the pant. In the cross- examination he admitted that he did not have any document to show that he ran the shop or that he was a tenant there. Contrary to the examination-in- chief, he admitted in the cross that he was acquainted with the Investigating Officer. He further deposed that the appellant told him that he had gone to the victim's house on the fateful day. Blood mark was there on the pant, but not on the shirt.
15. PW 14 was the son of the maid-servant of the victim and an employee at a shop owned by one of the brothers in Chandni Chowk. He deposed that he had last gone to the victim's house at 15:00/15:15 hours on the fateful day. When he was going down after meeting the victim he met the appellant. In the cross-examination he admitted that the police had arrested him in connection with the case and he remained at the police station for about five days. He admitted not telling a few things to the police when they had interrogated him including the dress the appellant was wearing and the conversation he had with the appellant. He deposed that his mother PW 27 had been working in the victim's house for the last 15/16 years. He also admitted that the appellant and him both were detained in the same lockup at the police station.
16. PWs 15, 22 and 24 were police constables who had carried certain articles for forensic tests. PW 17 was the constable who carried the dead body of the victim to the morgue for post mortem examination.
17. PW 16 was more of a chance witness. He worked at one M/s Eagle Sales Corporation at Ezra Street. He deposed that on 03.06.2000 at about 15:45/16:00 hours he saw the appellant, in blood stained clothes, was running away from the house in question. He submitted that the Investigating Officer recorded his statements after about 1 ½ months. He did not narrate the incident to the 'Darwan' of the said premises. He submitted that in the night of 03.06.2000, he went to his native place. He could not produce any document to show that he was working at M/s Eagle Corporation at the relevant time.
18. PW 18 was the post-mortem doctor who conducted the post-mortem examination on 04.06.2000 at about 15:45 hours. He detected about 42 injuries on the dead body. In the cross-examination, he admitted that the approximate time of death could not be ascertained. He deposed that the weapons in question could have caused such injuries. The body was not decomposed. In his opinion the involvement of more persons could not be ruled out in committing the offence in question.
19. PW 19 was the doctor under whose guidance the post-mortem examination was done. He examined the appellant on 08.06.2000. PW 19 deposed that the mental state of the appellant was normal, but he was biting nails. He found some injuries on the appellant some of which were marks of scuffle about 4 to 6 days old. He observed that the appellant made a false statement that the injury on the palm of right hand resulted from a fall on the roof of a house. In the cross-examination, PW 19 admitted that his report did not reflect that he had asked the appellant whether the police had tortured him or not.
20. PW 20 was the daughter of the victim was staying in Maharashtra. She submitted that PW 27 worked as a maid-servant. Sometimes, the appellant would visit the victim's place.
21. PW 21 was a scientific expert of the FSL. He deposed that blood of B group was present in some articles. But, to connect the accused with the crime, it was of not much help as the samples collected on the relevant items had disintegrated.
22. PW 25 was a hawker of puffed rice (muri) near the victim's house. He deposed that he had seen the appellant go inside the house at about 15:00/15:30 hours and to come out from there after about 1 ½ hours. He further deposed that the appellant frequently visited the victim. There was also another nightguard for the said house. He contradicted PW 3 as regards the duty time of the nightguard. PW 25 did not say anything about the blood stains on the garments worn the appellant.
23. PW 26 was the staff of 'Coroner' Court where Sri P.P. Acharya, the Executive Magistrate who held the inquest over the dead body of the victim was posted. He proved the inquest report (Ext. 25) prepared and signed by the Executive Magistrate Mr. P.P. Acharya.
24. PW 27 was the maid-servant of the victim and the mother of PW 14. She deposed that she had left the house at 14:30 hours. She further deposed that the victim used to give money to the appellant. But, on the fateful day the victim offered the appellant some rice, etc. instead. Then the appellant left giving threats to the victim. She deposed that the chopper and the knives found in the house in fact belonged to the house. In her cross, PW 27 submitted that PW 14 told her that he would bring his wife although PW 14 deposed that he was going to attend a marriage.
25. PW 28 was the Investigating Officer of the case. He had fingerprints and footprints taken from the place of occurrence. But the reports were negative. He said that the statements of the Bir Bahadur (PW 25), was taken on 04.06.2000 itself. He deposed that initially he did not take the appellant to the doctor as his injuries were not fresh. But, later he took him to a doctor. In his cross-examination PW 28 stated that he did not hear the sound of tap water falling when he entered the flat. He learnt that the tap was closed before his arrival. On 05.06.2000 a white shirt was seized. He submitted that there was a collapsible gate between the first and second floors that remained opened between 8:00 and 20:00 hours. PW 28 said that he interrogated Rajendra Parasad Singh (PW 16) on 01.05.2001 i.e., after about 2 years from the date of occurrence although PW 16 deposed that he was examined by PW 28 only after about 1 ½ months of the incident. The FSL Report was obtained after filing of charge-sheet. PW 28 admitted that although there were 3 shops on the ground floor, none of the employees of those shops was examined. There was one shop on the first floor as well. PW 28 stated that there was a verandah on the third floor and there were two gates to enter the flat. He found all windows of the flat closed. No blood marks were found on the walls. Footprints were also not clear. PW 28 saw rice and pulses were kept in a tied condition. PW 28 did not pray for collection of the appellant's blood for group matching. The appellant's footprint was also not collected. He admitted exaggeration of facts by some other witnesses. PW 28 personally verified that nothing was looted from the flat. He admitted that the seizure list did not mention about a hole in the chopper. He stated that Shabbir Jalal had gone to Dubai, but there were no papers to support such fact. He recorded a statement of UK Tripathi (PW 13) on 06.06.2000.
26. The examination of the appellant under Section 313 of the Code threw some surprises. It was not a trite and ritualistic exercise. The appellant tried to give some explanations. Some such relevant answers are briefly enumerated here in respect of the questions asked -
3: The appellant had no knowledge about the maid servant. 17: He used to visit the victim. The victim did not pay Rs. 1000/- every month. But, she used to pay money.
19: He did not visit the victim on the date of occurrence, but went there on 01.06.2000.
28: He knew that there were two tenants in the second floor, but did not know whether their houses were closed.
29: PW 25 used to sell puffed rice. The appellant did not know that he was also a watchman.
30: PW 25 used to sell puffed rice by the side of the gate to the house. 38: The appellant denied earlier involvement in a rape case. He admitted that it was a case of 'marpit' and he was kept in the lock up for a day. 53, 54, 55 and 68: He did not go to the flat on the date of occurrence. 56: Parvez (PW 14) was not known to him.
69: The Investigating Officer arrested the appellant and his parents on 04.06.2000. There were injuries on his body.
71: Denied giving any statement leading to recovery.
73: After arresting him, the police did not search anywhere. 74: The appellant did not go to his own place on 06.06.2000. 78: The appellant's signatures were taken at the police station. 80: He did not deny the medical report prepared on him.
84: The doctor treating him lied.
85: The doctor lied about scratches.
86: Injuries on him were 7/8 days old.
92: Admitted that PW 13 sold puffed rice in Sukeas Lane. 100: He had no idea about ringing of bell, etc. 106: Identified photographs, except Ext. D. 182: The charge-sheet was false.
185: The appellant claimed that the injuries on him were due to a fall.
27. Mr. Md. Sabir Ahmed, the Learned Amicus appointed by this Court to defend the appellants, strongly opposed the judgement and order of conviction and sentence. He submitted that the case at hand is based purely on circumstantial evidence. But, the circumstances available did not complete the chain so as to unerringly point towards the guilt of the appellant and such circumstances were not totally inconsistent with the proposition of innocence of the appellant. He further submitted that the evidence adduced by the witnesses in this case are full of major inconsistencies and contradictions. The Learned Advocate submitted that PW 3 first reached the place of occurrence at the instance of PW 4. PW 3 deposed that there was blood mark on the wall. But, the Investigating Officer (PW 28) contradicted him stating that there was no blood mark on the wall. PW 3 stated that one Jainuddin was the watchman for the house. But he was not examined. PW 28, the Investigating Officer tried to pass off PW 25 as the watchman. The Learned Advocate contended that PW 6 deposed that the victim was suffering from arthritis and could not walk properly. Therefore, unless she was dragged, blood would not be found in all those places. This according to him gave a clear indication that more than one person were involved in the crime. He submitted that it was surprising that the victim did not raise any hue and cry. PW 14 said that he left the shop to attend a marriage. But his mother (PW 27) said that he was going to bring his wife back. Surprisingly, the neighbours of Pervez (PW 14), although interrogated by the police, were not cited as witnesses. The Learned Advocate submitted that PW 9 deposed that he did not find any hole in the chopper. But, a hole was found to exist. The Investigating Officer (PW 28) too deposed that the hole was not noted in the seizure list. According to the Learned Advocate, this raises a doubt about whether the chopper produced in Court was at all the one purportedly seized from the place of occurrence. PW 25 deposed that the appellant had entered the house at 15:00/15:30 hours and went away after 1/1 ½ hours. But, he did not see him in blood stained condition. This version is doubtful, especially when the regular watchman was not examined. In fact, this story is contradicted by PW 16 who apparently saw blood stained shirt on the victim. PW 16 told the Investigating Officer that he saw the appellant flee in the evening. But in his deposition he stated that the appellant did so at 15:00/15:30 hours. PW 14 allegedly saw the appellant going up. He disclosed this on the 4th June 2000 although the appellant denied having been known to PW14. PW14 could not be trusted as he was himself detained in this case. In order to extricate himself, Pervez (PW 14) and his mother (PW 26) could have tried to falsely implicate the present appellant. The Learned Advocate submitted that someone else must have seen the appellant to either enter or leave the house. But such evidence did not come. He wondered about why Pervez (PW
14) should come to the house at 15:30 hours when his mother (PW 27) used to go out from there at 14:30 hours. PW 27 could not be trusted either as she was clearly trying to save his son PW 14. The Learned Advocate submitted that the time of death was not proved in this case. He further submitted that the fingerprints taken from the spot did not match with those of the appellant. The Investigating Officer admitted that blood was not collected from the appellant for matching. Lastly he submitted that it was the obligation of the prosecution to prove its case, which they failed to do beyond all reasonable doubts.
28. The Learned Advocate appearing on behalf of the State supported the conviction and sentence. He submitted that the case was based on circumstantial evidence. According to him there were seven main circumstances that appeared against the appellant. The same may be enumerated as under:
(i) PW 14 saw the appellant going up and even had a conversion.
(ii) PW 16 saw the appellant flee after the incident.
(iii) PW 25 saw the appellant go in and after sometime leave the said premises.
(iv) PW 27 the maid saw the appellant come at 12:00/12:30 hours, threaten the victim and leave.
(v) Seizure of blood stained wearing apparels from the appellant's house pursuant to the statements under Section 27 of the Evidence Act.
(vi) PW 19, the doctor who examined the appellant on 08.06.2000 refuted the appellant's claim that he received the injuries by falling on a roof.
(vii) PWs 21 and 23 found blood on the shirt. PW 23 deposed that blood disintegrated and that is why the group could not be ascertained.
The Learned Advocate submitted that the appellant could not satisfactorily explain the injuries found on him in his statement under Section 313 of the Code. PW 17 was the signatory to the seizure list. He corroborated that the appellant washed the apparels. The Learned Advocate further submitted that the cross-examination of the Investigating Officer was not in tune with the stand taken by the appellant under Section 313 of the Code. PW 14 saw the appellant going up while he was coming down. PW 16 saw the appellant move in blood stained clothes. But there was no cross-examination of the Investigating Officer on this. The Learned Advocate tried to explain the discrepancy between the evidence of PW 16 and PW 25. He submitted that the appellant came out on his front side. Therefore PW 16 had no time to see the accused. The other witness might have seen it. He could not explain though why PW 16 was approached or interrogated. PW 16 said that he was examined after 1 ½ months but the Investigating Officer ( PW 28) deposed that PW 16 was examined after about 2 years. The Learned Advocate further contended that PW 25, who apparently saw the appellant enter and leave the premises, was not cross-examined as regards the issue of blood stains on the garments of the appellant. He submitted that PW 27 said about the appellant coming at 12 O'clock earlier. PW 25 might have missed it or might have been temporally absent. In any event, there was no specific cross- examination on this point. PW 21, the Serologist deposed that blood was detected from the shirt seized from the appellant. The origin of the blood could not be tested. The appellant had told PW 13 that he had washed it. He submitted that there was no cross-examination on this score. PW 20, the victim's daughter deposed that the appellant used to take money from the victim. The appellant admitted under Section 313 of the Code that he used to take money. As regards non-examination of the regular watchman, the Learned Advocate submitted that no specific question had been put to the Investigating Officer in order to draw an adverse presumption. He relied on a decision of the Hon'ble Apex Court reported in Gulam Sarbar vs. State of Bihar, (2014) 3 SCC 401 on this. The Learned Advocate submitted that delayed examination of witnesses did not necessarily affect the prosecution case and a question had to be put to the Investigating Officer to seek his explanation. On this reliance was placed on a decision of the Hon'ble Supreme Court reported in State of U.P. vs. Satish, 2005 SCC (Cri) 642. The Learned Advocate further submitted that if a witness is alleged to lie, the defence has to specifically cross-examine him in order to derive any benefit. He relied on a decision of the Hon'ble Apex Court reported in Vinod Kumar vs. State of Haryana, (2015) 3 SCC 138 on this issue. The Learned Advocate further submitted that the appellant gave a false explanation in his examination under Section 313 of the Code in respect of seizure and injury on him. This would act as an additional link to the chain of circumstances appears against him. On this, he relied on a decision of the Hon'ble Apex Court reported in Manu Sao vs. State of Bihar, (2010) 12 SCC 310.
29. We have heard the submissions of the Learned Advocates appearing on behalf of the appellant and the State and have carefully perused the evidence and other materials on record to find out whether the impugned judgment and order of conviction and sentence suffer from any illegality or not.
30. As the prosecution case is based on circumstantial evidence, it is necessary to analyse the circumstances appearing against the appellant in order to find out whether the chain of circumstances is complete and the circumstances unerringly point towards the guilt of the appellant to the exclusion of any other possibility.
31. Motive assumes a heightened significance in a case based on circumstantial evidence. It came out from the evidence of relations of the victim that there was a business dispute between the appellant's father and the husband of the victim and his brothers. The appellant's father had filed a suit claiming dues that were not given to him from a partnership business. His grievance was that he was purportedly compelled to settle the dispute. There is more evidence to suggest that the appellant's father possibly had to be sent to a mental asylum afterwards. All these, as per prosecution, give an inkling of an animus between the appellant and the victim's family. However, it has also come in evidence that the victim had love and affection for the appellant, the appellant often visited the victim and the victim used to give him money off and on. The grievances of the appellant's father and the aftermath only signify the suffering of him and his family. Per se this does not provide any motive to the appellant to murder the victim, especially when there is ample evidence to suggest that the victim had an affection for the appellant and would often give him money.
32. PW 27, the mother of PW 14 and the maid-servant working at the victim's house deposed that about 12/12:30 hours on the date of occurrence, the appellant visited the victim's house and demanded money. The victim this time offered him some food articles instead, which were allegedly found in a tied condition near the spot after the occurrence. First, this as a motive does not go naturally with the relation between the victim and the appellant as portrayed by other evidence. Nor is this in keeping with the composed nature of the appellant as expressed by him in his examination under Section 313 of the Code. Finally, the evidence of PW 27 has to be evaluated carefully as her son PW 14 was the first suspect detained in this case and the evidence and the other materials collected placed PW 14 at the place of occurrence at or about the time of occurrence. PW 27 would be clearly interested in removing any suspicion about PW 14's innocence.
33. PW 25 was another pre-occurrence witness. He was a puffed rice (muri) hawker sitting near the house. He claimed that he saw the appellant go into the house at about 15:00/15:30 hours on the fateful day and come out after 1 ½ hours. He neither saw the appellant come to the house at 12:00/12:30 hours, nor saw PW 14 go there thereafter. He might have missed both. But, quite significantly he remembered the appellant go inside and come out of the house in a gap of about 1 ½ hours. On his post- occurrence account, PW 25 contradicted PW 16 in that while PW 16 saw blood stains on the appellant's shirt, PW 25 did not. Such contradiction will be finally tested while comparing with the evidence of PW 16. That apart, PW 25 admitted in his cross that the owner of that house had allowed him to sell 'muri' by the gate.
34. On the pre-occurrence events, the most vital witness is PW 14, the son of the maid-servant PW 27 and employee of the victim's husband. While he claimed that he took leave for going to attend a marriage, his mother PW 27 stated that PW 14 told her that he was going to bring his wife back. At an extreme, both may be true. More importantly, PW 14 deposed that he went to the victim's house at 15:00/15:15 house for bringing some keys from his mother PW 27 and while coming back, meet the appellant who was going up the stairs. First, there is ample evidence to show that PW 27 used to work at the victim's house till 14:00 hours. Then, one wonders what prompted PW 14 to go there after 15:00 hours. Although PW 14 claimed to have known the appellant from before, the latter denied this in his examination under Section 313 of the Code. The evidence of PW 14 has to be taken with a pinch of salt. Not only no one saw him enter or leave the house at that point, but there is also no independent evidence to show that he and the appellant knew each other from before. Most important of all, PW 14 was the initial suspect in this case and whether guilty or not, would be interested in having the blame put on someone else.
35. It is of utmost importance to assay the bare facts constituting the alleged crime and the crime scene. The main door of the flat was open. So, anybody could have come in. There were even shops in the ground and first floors of the house. Several weapons were used to perpetrate the crime. As per PW 27, those were all available in the said flat. The victim was an aged lady who could not walk properly due to arthritic problems. One wonders why a single assailant would use so many different weapons to murder such an old lady of frail health and remain at the crime scene for so long. PW 18 the Post Mortem doctor could not rule out the involvement of more than one person in the crime. The Investigating Agency seemed to be blissfully ignorant about the possibility of involvement of more than one person in the crime. The windows were found closed. PW 28, the Investigating Officer personally verified that nothing was looted unlike what was initially alleged. This is despite the fact that almirahs were found open and belongings rummaged. Unlike the Investigating Agency, any man of ordinary prudence would have tried to explore the motive behind making the scene look like as if there was a dacoity. Or was it that the assailant/s looked for something particular in the house. Although not impossible, the proposition that the appellant would have carried out the crime, that too alone, taking so much time for the same, take his time and yet, rush out with blood-stained clothes on road, appears to be a little suspect. The story would then need a very strong corroboration from other evidence.
36. Next come the evidence of PWs 16 and 25 who saw the appellant come out of the house after the alleged incident. As discussed earlier, while PW 16 saw the appellant move in a blood-stained shirt, PW 25 did not notice any such blood stains. Another suspicious circumstance as regards the chance witness PW 16 is that although he deposed that he was examined by PW 28 after about 1 ½ months of the incidence, PW 28 deposed that he examined PW 16 after about 2 years. The evidence of PW 16 do not inspire much confidence in view of the above referred anomalies.
37. It is also necessary to discuss the evidence of PWs 3 and 4 about detecting the crime for the first time. PW 4 claimed that she heard water flowing from the victim's bathroom, went and rang the bell, did not enter although the door was open as she did not want to infuriate the victim and then went to PW 3 asking him to look into the matter. PW 3 then went, but did not hear the sound of water himself. He found the dead body and informed the police through an Additional Commissioner. Surprisingly, no one else heard the sound of water flowing either.
38. Investigation of the case started with much fanfare. High ranking police officers visited the place to inspire their subordinates. Yet, the investigators started botching up the investigation from the very inception. Certain important articles were seized from inside the flat after practically sealing off the place. Even prime seizure list witnesses were made to sign on the seizure lists after taking the articles out without such witnesses seeing the actual seizure. Technically, they could possibly get away by inducting one or more police witnesses. But, the process adopted was not a fair one. As discussed earlier, the investigating agency did not explore either the question of more people being involved in the crime or the issue of motive behind the murder. They picked up PW 14 first, did not reflect the reasons for suspecting and then for leaving him and the reason for blind reliance on versions given by PW 14 and his mother PW 27. There is no explanation for the police to chance upon the chance witness PW 16, a vital post-occurrence witness and examining him after 2 years. There is also an allusion that the appellant's parents were detained for no reason.
39. The most debilitating faux pax on the part of the investigating agency was the non-collection of blood from the appellant so that the blood group or the DNA could be matched with those found on the offending weapons, etc. This is a very interesting omission, especially when juxtaposed with their efforts to have fingerprint and footprint experts brought in. In such context, non-collection and non-matching of blood of the appellant amounts to non- production of the best evidence available. The appellant may very well argue that in spite giving painstaking efforts in other fronts, an unexplained failure to match the blood group was done because the investigating agency knew that the same would not match.
40. The chopper that was produced before the Learned Trial Court contained a hole. Neither had the witnesses seen the hole earlier nor was there any mention about it in the seizure list.
41. It may be germane to mention here that neither the fingerprints on offending articles matched with those of the appellant nor were the footprints sufficient to undergo matching.
42. The medical evidence adduced by the Post Mortem doctor PW 18 gives a gory picture of multiple assaults on the victim lady. She was dragged from one place to another and butchered. Significantly, he did not rule out the possibility of the involvement of more than one person in the crime.
43. PW 19, the doctor under whose guidance the post-mortem examination of the victim was done, was the same doctor who examined the appellant for his injuries. According to him, some were marks of scuffle about 4 to 6 days old. He opined that the appellant made a false statement that the injury on the right palm resulted from a fall on the roof of a house. PW 19 ought to have confined his opinion to whether such injury could have been caused by such fall. Going beyond this smacks of a bias possibly arising out of guiding the post mortem examination over the victim's body in the same case. Moreover, PW 19 admitted in his cross that he did not ask the appellant whether the police had tortured him or not. Unlike the earlier circumstances, the purported false or non-explanation of the injuries on the appellant's person could have acted as a major link to the chain of circumstances. But, the evidence on this is also not cogent and convincing.
44. Subsequent purported seizure of a shirt from the appellant's house is also not of much significance as it does not really connect with crime by way of any convincing evidence.
45. As regards the decisions cited by the State, they lay down established principles of law. But, on the particular facts of this case, the decisions do not help the prosecution in removing the doubts about its case or bolstering it in any manner.
46. In a case based purely on circumstantial evidence, the chain of circumstances appearing against the appellant should be complete and should rule out all other possibilities than that of the guilt of the accused. But, in the present case, that has not happened. There are several material contradictions and anomalies in the evidence adduced and materials collected, as discussed above. In such circumstances, it shall not be safe to uphold the judgment and order of conviction and sentence imposed upon the appellant and the appellant should be entitled to a benefit of doubt.
47. In view of the above discussions, we do not think that the prosecution has been able to prove its case beyond all reasonable doubts. We, therefore, set aside and reverse the impugned judgement and order of conviction and sentence passed by the learned Trial Court upon the appellant. The appellant, if in custody, shall be released forthwith if his custody is not required in any other case.
48. A copy of the judgement along with the lower Court records may be sent down to the learned Trial Court by Special Messenger forthwith for information and necessary action.
49. Urgent photostat copies of this judgement may be delivered to the learned Advocates of the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J) I agree (Md. Mumtaz Khan, J)