Calcutta High Court (Appellete Side)
Sk. Jahangir Khan vs The State Of West Bengal on 21 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item no. 434
Sanjib/RP/SB & PA
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 259 of 1997
SK. Jahangir Khan
Versus
The State of West Bengal
Amicus Curiae : Mr. Arun Kr. Maity, Ld. Addl. P.P.
For the State : Ms. Zareen N. Khan
Heard on : 21.11.2017
Judgement on : 21.11.2017
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 15th July, 1997 passed by the learned Additional Sessions Judge, Second Court, Suri, Birbhum, in Sessions Trial No. 2 of July, 1996 arising out of Sessions Case No. 60 convicting the appellant for commission of offence punishable under Section 302/201 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs.2000/-in default, to suffer rigorous imprisonment for two years more for the offence punishable under Section 302 IPC and to suffer further rigorous imprisonment for five years and to pay a fine of Rs.2000/- in default to suffer rigorous imprisonment for two years more, both the sentences to run concurrently.
The prosecution case, as alleged, against the appellant is to the effect that on 26-10-1990, the appellant was found throwing boulders into a well by the local villagers who had come to collect drinking water from the said well. On query the appellant stated that he was throwing boulders to catch fish. The local people became suspicious and asked him to draw out the water from the well which he refused to do. Thereupon, the local people detained the appellant and started draining out the well and noticed a dead body of a lady. Chowkider was informed of the matter who in turn informed the local police station. Such information was diarised as General Entry No. 699 dated 26-10-1990 (Ext. 5) and P.W. 14, namely, Chandan Mukherjee, Officer-in-Charge of Md. Bazar P.S. along with S.I. Avas Nandi, P.W. 15, proceeded to the place of occurrence. It is alleged that in the meantime the appellant made an extra judicial confession before the local people that he along with the co-accused Meherun Bibi had killed Chabi Murmu with hensua in the bamboo grove. As the husband of Meher, namely, Faraz was having an affair with the said victim. Thereafter, he along with Meher and her father Salem Sk. (who absconded) put the body into the well. When police arrived, the dead body of the victim was recovered from the well and Aynal Haque Molla, one of the local villagers (P.W. 1) lodged a written complaint further a First Information Report was drawn up. P.W. 15 recorded the statement of the appellant under Section 161 of the Cr.P.C. and pursuant to such statement police seized a hensua, the weapon of offence from his house. FIR was registered against the appellant, Mehrun Bibi and Salem Sk under Section 302/201/34 IPC and in conclusion of investigation a charge-sheet was filed under the aforesaid sections against the appellant and the two other accused persons.
The case was committed to the court of sessions and transferred to the court of Additional Sessions Judge, Second Court, Suri, Birbhum for trial and disposal. As Salem Sk absconded, charges were framed under Sections 302/34 IPC and Sections 201/34 IPC against the appellant and Mehrun Bibi. They pleaded not guilty and claimed to be tried.
In course of trial, the prosecution examined P.W.19 and exhibited a number of documents. The defence of the appellant was one of innocence and false implication.
It was his specific defence that nobody has seen him with the victim prior to her death. There was no enmity between the appellant and the victim. There is also no evidence to show that the appellant had met the co-accused persons, namely, Mehrun Bibi and Salem Sk. The extra judicial confession relied upon in the instant case is highly dubious and the recovery of the hensua was not at his behest.
However, in conclusion of trial, the trial Judge by the impugned judgement and order dated 15th July, 1997 convicted and sentenced the appellant, as aforesaid. By the self-same judgment and order, Mehrun Bibi, however, was acquitted from the charges leveled against her.
Nobody appeared for the appellant. Mr. Arun Kr. Maiti was requested to assist the Court as amicus curiae.
Mr. Arun Kr. Maiti as amicus curiae submitted that the circumstances proved against the appellant do not complete a chain which unerringly points to his guilt. The extra judicial confession was procured under coercion after the appellant was detained by local villagers in the presence of a Chowkider and even the Officer-in-Charge, P.W. 14 was present in or about the time of recording of such confession. Hence, it cannot be said that the appellant was a free agent and have voluntarily made such confession. Save and except such confession there is nothing to connect the appellant with the alleged crime. There is nothing on record to show that the appellant had any enmity with the victim. There was also no reliable evidence led by the prosecution to establish that there was an illicit affair between the victim and Faraz, the husband of acquitted accused, Mehrun Bibi, which is touted as the motive of crime. Recovery of hensua from the residence of the appellant is also not an incriminating circumstance as the said instrument was not sent for FSL examination. He accordingly prayed for acquittal.
Ms. Khan, learned counsel appearing for the State submitted that the conduct of the appellant in throwing boulders into the well from where the villagers used to collect drinking water was most suspicious. Accordingly, the villagers asked the appellant to remove the boulders which he refused to do and upon draining the water the villagers found a dead body. On interrogation, the appellant made an extra judicial confession admitting his guilt which in the aforesaid circumstances is most natural and, therefore, was rightly relied upon by the trial court. Soon thereafter, on his leading statement the weapon of offence, namely, hensua was recovered. Medical evidence has also supported the aforesaid circumstances. Hence, the appeal is liable to be dismissed.
An analysis of the evidence on record would show that the case of the prosecution is based on circumstantial evidence. The prosecution has essentially relied on the following circumstances to bring upon the guilt of the appellant:
a) On 26-10-1990 in the morning, the appellant was found throwing boulders into a well from where the local villagers used to collect drinking water;
b) The local villagers who had assembled to collect drinking water opposed the appellant in fouling the water by throwing boulders and asked him to remove the bounders;
c) The appellant refused to do so and thereupon he was detained;
d) The local people drained the water and found the dead body of a lady.
e) This fact was informed to the local Chowkider who in turn intimated the local police station over the incident.
f) In the meantime, the appellant made an extra judicial confession stating that he along with Mehrun Bibi (acquitted accused) had killed Chabi with a hensua in a bamboo grove over the issue of illicit relation between Faraz, the husband of Mehrun Bibi and the victim. Thereafter, the dead body was put into the well by the aforesaid accused persons and Salem Sk. and he was throwing boulders to conceal the body.
g) The police arrived at the spot and the body of the victim was brought out from the well. The dead body was identified as that of Chabi.
h) Police recorded the confessional statement of the appellant and pursuant to his statement a hensua was seized from his house.
i) Medical evidence showed that the victim died due to a cut incised injury on throat which may have been caused by a hensua.
It is trite law that in order to bring home a conviction based on circumstantial evidence the following parameters are to be met:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as to not leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
[See Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 (Para 153)] These circumstances throw serious doubts as to the voluntariness of the so-called extra-judicial confession of the appellant and it would be highly risky to rely on it in the absence of corroborative evidence to come to a finding of guilt against the appellant.
Let me examine whether the circumstances, as enumerated above, satisfy the aforesaid legal parameters of proving the guilty of the appellant beyond reasonable doubt.
PW 1 is a local resident and the de facto complainant in the instant case. He deposed that there is a stone quarry of Arun Babu by the side of the village. He works in the said stone quarry. There is a big well by the side of the said stone quarry. All the villagers used the said well for collecting water. On 26.10.1990 he along with others was working in the said quarry. When they had gone to collect drinking water from the said well they found the appellant Jahangir Sk. throwing boulder in the said well. They raised protest and asked him why he was throwing boulders. He stated that he was throwing boulders to catch fish. They became suspicious and found a bloodstained boulder in the well. They asked the appellant to pull out the boulders. He refused to do so. He was detained and the villagers dried the well and found the dead body of the victim, Chabi Murmu. They informed the chowkidar who later informed the police. Upon questioning, the appellant stated that he along with Meherun Bibi murdered Chabi Murmu with a hensua in the bamboo grove and threw the dead body in the well. He stated that Chabi had a love affair with Farad, who is the husband of Meherun Bibi. The appellant thereafter stated that he along with Meherun Bibi and one Salam Sk. took the dead body from the nearby field and threw it in the well. The appellant was throwing boulders in order to conceal the dead body. The Police thereafter arrived at the spot. He wrote a written complaint which was signed by him (Exbt.1/1). The dead body was taken out from the well. Mother of Chabi, her brother and sister identified the dead body. Police held inquest over the dead body. He signed on the inquest report (Exbt.2/1). Daroga Babu took all of them to the bamboo grove, seized bloodstained earth and controlled earth (Exbt.3/1). Police arrested Jahangir and Meher Bibi and took them into custody. Next morning at about 10/10.30 a.m. police arrived at the village with Jahangir and recovered one Hensua from the house of one Salam Sk. He identified the Hensua (Mat Exbt.4/1) and put his signature on the seizure list (Exbt.4/1). In cross-examination, he stated that he never saw Chabi roaming with Jahangir on earlier occasions. Jahangir is jamai by para relation. He accompanied the police since the recovery of dead body.
PW 2 is another local villager. He corroborated the evidence of PW 1. He signed on the seizure list (Exbt. 2/2). In cross-examination, he stated that he is also working in the said stone quarry. He never saw Chabi roaming with Jahangir or Faraz. The well is surrounded by boulders to prevent the possibility of accident. The well was full of water at that time.
PW 3 and PW 5 were also working in the said stone quarry. They corroborated the evidence of PW1 and 2.
PW 4 was tendered for cross-examination.
PW 6 is a local villager who used to work in the said stone quarry. He deposed that the appellant was throwing boulders in the well and on questioning he refused to divulge anything. They drained out the well and found the dead body of Chabi Murmu. Appellant stated that to prevent floating of the dead body he had thrown boulders into the well. He stated that mother of Chabi was searching for her deceased daughter for the last two days. In cross-examination, he stated that 40/60 persons worked in the stone quarry. The water of the well was drained out within 3 to 4 hours. Several local villagers assembled there. Daroga babu arrived when they were draining the water. Daroga babu managed to extricate the dead body with the help of the appellant. They were present at the side of the well. The appellant did not state anything when they began to drain out the water. Chabi's village is one mile from their village.
PW 7 was declared hostile and cross examined.
PW 8 deposed that he knew Chabi. She had illicit relationship with Faraz, husband of Meherun.
PW 9 also deposed that on the fateful day the appellant was found throwing boulders in the well. The appellant stated to him that he was throwing boulder to catch fish. They began to drain out the water of the well. After draining out the water they found the dead body of Chabi. On repeated questioning the appellant admitted his guilt. In cross-examination, he stated that Daroga babu arrived in the afternoon.
PW 10 is the mother of Chabi. She stated that on 24.10.1990 Chabi went to Dolkata ghat at about 2.30 p.m. She was wearing a saya, sari, gamcha and blouse and had gold ornaments like ear ring, gold neckless, nakchabi on her person. She never returned. They searched everywhere. On Friday afternoon some people of Dolkata village informed her that her daughter might have been found in a well near the stone quarry of Arun babu. She proceeded to Dolkata and reached near the stone quarry of Arun babu. At that time daroga babu was also present. The dead body was lying by the side of the well. She identified the dead body of her daughter. The ornaments of the victim were not found on her person. She stated that her son-in-law is dead and her daughter used to work as a daily labourer in different places. She went with some boys while going for work. She did not inform the police about the missing of her daughter.
PW 11 is a resident of Dolkata village. He stated that on 26.10.90 he found Jahangir was surrounded by various people and saw that the local people were draining out the water from the well and a dead body was found in the well. The appellant admitted that he killed Chabi along with Meher and Salem. Local chowkidar was also informed. Police turned up in the evening. Mother of Chabi identified the dead body. Daroga babu questioned Jahangir about the murder weapon and he led them to the residence of Jahangir and picked out the hensua from his thatched roof. Daroga babu seized the same and prepared seizure list (Exbt.4/2). In cross-examination, he stated that Jahangir is not related by blood either to Meherun or to her husband.
PW 12 stated that there was a village salish over the illicit relation of Chabi and Faraz. Faraz accepted to desist from such association. In cross- examination, he stated that he never saw in the house of Faraz.
PW 13 is the owner of stone quarry where the appellant and the other witnesses worked. He stated that there is a well near the stone quarry which was used for collecting drinking water. He further deposed that the stone quarry was closed for 10 years since 1996. He had no knowledge whether the PW 1 was working there.
PW 14 was the officer-in-charge of Suri Police Station at the material point of time. On the date of occurrence at 5.15 P.M., Chowkider of Dolkata village informed him about a dead body at Dolkata village. He diarised the information as General Diary Entry No.699 dated 26.10.1990 (Exbt. 5/1). He along with S.I. Avas Nandi (PW 15) went to the village. PW 1 lodged the written complaint. He reached the village at 19.35 hrs. He sent the FIR to police station through his driver Sannyasi Pal for starting PS case and upon his return he endorsed the case to S.I. A. Nandy. He kept A.S.I Ramapada Ghosh there and left. In cross- examination, he stated that he cannot say the name of the Chowkidar which is also not noted in the General Diary.
PW 15 Abhas Nandi was attached to Md. Bazar P.S. as SI of Police. PW 14 Chandan Mukherjee was officer-in-charge of Md. Bazar P.S. On receipt of information they proceeded to Dolkata village by jeep. On reaching Dolkata village PW 1 lodged a written complaint and the complaint was sent to the police for starting a PS case. The case was endorsed to him for investigation. PW 1 identified the place of occurrence. He prepared the sketch map with index (Exbt.6 and 6/1). The dead body was taken out of the well in his presence by some villagers. He prepared the inquest report in presence of the witnesses (Exbt.2). He collected bloodstained earth and controlled earth from bamboo groove (Exbt.3/2). He arrested the appellant and Meherun. The appellant made statement under Section 161 CrPC (Exbt.7). He recovered a Hensua from the residence of the appellant under a seizure list (exbt.4). He examined the witnesses. He seized wearing apparels of the deceased under a seizure list (Exbt.8). He made the seizure in the Thana. The accused was produced in Court and he sent the dead body for postmortem examination. On his transfer he handed over the charge to Officer-in-Charge. In cross-examination, he stated that he did not examine the chowkidar in the case. There is nothing in the case diary regarding whether the accused persons were present in the place of occurrence. Hensua was not sent for FSL examination. He could not say whether the appellant was a resident under Sikaripara P.S. PW 16 Sannyasi Ch. Paul, was a driver constable attached to Md. Bazar P.S. He took the written complaint from PW 14 to the thana and ASI Ramapati recorded the formal FIR.
PW 17, A.S.I Ramapati Ghosh deposed that on receipt of written complaint from the Officer-in-Charge Chandan Babu he drew up the formal FIR. Thereafter he sent the FIR to Chandan Babu once again through the driver Sannyasi Paul. He entered the General Diary No.702 (Exbt.10).
PW 18 was the second investigating officer who concluded the investigation and filed charge sheet.
PW 19 is the Autopsy Surgeon who found the following injuries:-
1) The body was in highly decomposed condition.
2) He found one incised injury in the mid-region of the neck measuring 4½"X3"X4". No other injuries were found.
3) Larynx and trachea were cut off.
He stated that the injuries were caused by Hensua.
From the aforesaid evidence it appears that on 26.10.1996 PWs.1, 2, 3, 5, 6, 8, 9 and 11 found the appellant throwing boulders into the well when they arrived at the same spot to collect drinking water. All of them claimed that they were working in the stone quarry of PW 13 immediately prior to assembling at the well for collecting water. PW 13, however, claimed that the stone quarry had closed down for the last 10 years since 1996. This dichotomy throws doubt as to their simultaneous presence at the place and time of occurrence. However, all of them have said in unison that they were present there for collecting drinking water and had enquired the appellant as to why he was throwing boulders into the well. The appellant replied that he wanted to catch fish. The witnesses became suspicious and asked him to remove the boulders. When he refused to do so they detained the appellant and started draining the water and ultimately found a dead body in the well. They informed the chowkidar whose identity has neither been established nor has he been examined in the instant case. It is claimed that the said chowkidar, informed Md. Bazar Police Station and such information was diarized as GDE 699 dated 16.10.1990 (Exbt.5). Pursuant thereto PW 14, Officer-in-Charge of the police station and the PW 15, first investigating officer of the case, came to the place of occurrence. It appears from the evidence of PW 6 as well as the Officer-in-Charge (PW 14) that the latter arrived at the spot while the water was being drained out from the well. Thereafter the dead body of the victim was brought out. In the meantime it is claimed that the appellant had made a confessional statement that he along with Meherun Bibi had killed Chabi Murmu with a hensua in the bamboo grove. Thereafter, he along with Meherun Bibi and Salem Sk. had thrown the dead body of the victim in the well and he was throwing boulders in the well in order to conceal the dead body. Prosecution has essentially relied on this piece of evidence, namely, extra-judicial confession of the appellant to establish his guilt. It is, therefore, necessary to see whether the extra-judicial confession made by the appellant is voluntary and truthful so as to form the basis of his conviction. It appears from the evidence of all the witnesses that after discovery of the dead body in the pond they had detained the appellant. Hence, one can safely conclude that the appellant was not a free agent at the time when he made the extra-judicial confession casting serious doubt as to its voluntariness. Apart from that, it appears that the local chowkidar had been informed who intimated the discovery of dead body in the well to the police station. The identity of the chowkidar has not been established. He has also not been examined in the instant case. The examination of chowkidar in the instant case is most vital in order to ascertain as to whether he was present at the spot when the victim made the so-called extra-judicial confessional statement to the villagers. Evidence of PW 6 shows that police arrived there while they were draining water from the well. Under such circumstances, possibility of presence of the police personnel at the time when the so-called extra-judicial confession was made by the appellant cannot be wholly ruled out. The appellant was detained by an agitated mob while they drained water from the well for 3-4 hours. The village chowkidar was present and the police from the local police station who had been informed also arrived at the spot while the water was being drained out of the well. The appellant was, therefore, not a free agent when he purportedly made the confession. The witnesses who had detained him were most hostile and it is possible due to coercion and out of fear he was forced to admit his guilt. Presence of police personnel at the time of making such confession and the fear of immediate reprisal from persons in authority cannot be wholly ruled out in the aforesaid factual matrix. The genesis of the prosecution case shows that the said extra-judicial confession is claimed to have been made after the discovery of the dead body in the well. Soon thereafter, the appellant had been detained by the agitated local people and, in all probability, the extra-judicial confession had been procured under pressure in presence of persons in authority like the chowkidar and local police personnel of the police station who had arrived at the spot while water was being drained out from the well.
In Sasanka Sekhar Kar vs. State of West Bengal, 1990 Cr.L.J. (NOC) 168 (CAL)], a Division bench of this court held that an extra judicial confession made by an accused when surrounded by a large mob cannot be said to be voluntarily.
Coming to the corroborative evidence of recovery of hensua, it appears that such recovery had not been made in that night but on the next morning. PW 15 claimed that he had immediately recorded the confessional statement in writing of the appellant. There was no explanation offered as to why after recording the statement (exbt. 7) of the appellant at the place of occurrence, P.W. 15 took the appellant back to the police station and affected the recovery of the hensua purportedly pursuant to his statement only on the next day. This gap in time and the manner of recovery of hensua throws serious doubt as to whether the said recovery was, in fact, pursuant to the statement of the appellant as claimed by the police. It is also important to note that the hensua had not been sent for forensic examination so as to determine the presence of human blood on the weapon so as to connect it with the alleged crime. Hence, this piece of evidence is highly artificial and does not inspire confidence.
Finally, coming to the issue of motive, I find that there is absolutely no involvement of the appellant in the so-called illicit relationship between Faraz, the husband of the acquitted accused Meherun Bibi and the victim Chabi. Nothing has been placed on record to show that the appellant was aware of such illicit relationship or had expressed any displeasure over such matters. Even the evidence regarding illicit relationship between Faraz and Chabi is most vague and not supported by the mother of the victim (PW 10), the most probable witness in that regard. Failure to establish the motive not only breaks the chain of circumstances pointing to the guilt of the appellant but also throws doubt as to the truthfulness of the aforesaid extra-judicial confession.
In the conspectus of the aforesaid evidence on record particularly, in view of the suspicious circumstances attending the purported extra-judicial confession which was procured from the appellant while he was in detention and where the possibility of presence of police personnel at the spot cannot be wholly ruled out, I am afraid that conviction of the appellant primarily on such piece of evidence is not justified. It is apposite to note that mere vague suspicion cannot take the place of proof and when the prosecution has not been able to show that the appellant had voluntarily made the extra-judicial confession free from any influence or coercion, I am of the opinion that conviction of the appellant essentially founded on such weak piece of witness is liable to be set aside.
Accordingly, I set aside the conviction and sentence imposed on the appellant.
The appeal is accordingly allowed.
I record my appreciation for the able assistance rendered by Mr. Maity as amicus curiae in disposing of the appeal.
An advance order be forthwith sent to the correctional home where the appellant is presently kept and he be released forthwith on execution of bail bond to the satisfaction of the trial Court which shall continue for six months in terms of Section 437A Cr.P.C., if he is not wanted or detained in any other case.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)