Calcutta High Court
Jharu Mondal And Anr. vs State on 21 April, 2005
Equivalent citations: 2005(4)CHN568
JUDGMENT Amit Talukdar, J.
1. In this appeal the conviction of the appellants in respect of the charges of Sections 302 and 364 of the Indian Penal Code forms the subject-matter of consideration, which has been passed by the learned Fast Track, Second Court, Krishnanagar in Sessions Trial No. 2(7)2002 on 28.3.2003 thereby sentencing both the appellants in respect of the charge under Section 302 of the Indian Penal Code to suffer imprisonment for life and to pay a fine of Rs. 3,000/- in default, to suffer further rigorous imprisonment for six months. No separate sentence in respect of the charge of Section 364 of the Indian Penal Code was however passed.
2. Pursuant to a chargesheet, submitted by P.W.10 the Investigating Officer the appellants were directed to answer the following charges :
"Firstly, That in furtherance of common intention all of you, on or about the 20th day of March, 2000 at 00 hours of night at Ramnagar P.S.--Tehatta, Nadia, kidnapped Nandarani Mondal in order that the said Nandarani Mondal might be murdered and thereby committed an offence punishable under Section 364/34 of the Indian Penal Code,...."
"Secondly, That in furtherance of common intention all of you, on or about the 20th day of March, 2000 at 00 hours P.S. Tehatta, Nadia, did commit murder by intentionally causing the death of Nandarani Mondal and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code,...."
3. Having pleaded not guilty the appellants were put up on trial which saw the prosecution examining 10 witnesses in its support.
4. The first phase of the prosecution case relates to the evidence of P.W. 4, child witness, who was sleeping by his grandmother, deceased Nandarani on the fateful night of 20.3.2000 when the appellants came and kidnapped Nandarani and she having remained untraced until her deadbody was found. That P.W.4 the child witness used to sleep to his grandmother deceased Nandarani has been spoken by P.Ws. 1, 3 and 5. It relates to the charge in respect of Section 364 of the Indian Penal Code.
5. The second phase of the prosecution case in relation to the charge of Section 302 of the Indian Penal Code relates to the evidence of P.W.1 the daughter-in-law of the deceased Nandarani who deposed that she was sleeping inside the room with her child, who was unwell; while Nandarani and P.W. 4 were sleeping on the varandah. She stated that she heard from P.W. 4 in the morning that the appellants had kidnapped Nandarani. She deposed that her husband, Manick (not examined) and the appellant No. 1 used to catch fish together and as the fishing net of the appellant No. 1 was missing he blamed Manick and both the appellants chased her husband. In the same night the appellant No. 2 came to their house and asked for Manick and he threatened them with murder by way of setting fire in the room. She further stated that the deadbody of deceased Nandarani was found two days thereafter in a jackfruit and mango garden. She narrated the incident to the police station. P.W.8 scribed her version (Ext.3), which was treated as a formal FIR (Ext. 4) by P.W.9.
6. P.W. 3 another daughter-in-law (elder) of the deceased Nandarani and mother of P.W. 4 signed on the Inquest Report (Ext. 6). She also heard from P.W. 4 that the appellants had kidnapped Nandarani and committed murder. She saw the deadbody and deposed that she had heard that eight days before the incident there was a quarrel between Manick and the appellants over the missing fishing net. Nandarani was visually impaired and P.W.4 was staying in the house of P.W. 1 and he knew both the appellants as they were from the same village. Next morning P.W. 4 came to her house and told about the incident of kidnap of Nandarani by the appellants.
7. This is another phase of the prosecution case supplemented by the evidence of PW. 2 a co-villager, who turned hostile, found the deadbody in the garden while he was going to the field. P.W. 5, younger brother of Nandarani also turned hostile, heard from P.W. 4 in the next morning that he and Nandarani were in the same bed on the night of occurrence. He deposed that Nandarani could not be found in the morning after the incident; though search was made, she could not be traced out. P.W.6, another co-villager, was also declared hostile. He signed on the inquest report and saw the deadbody of Nandarani. He knew P.W. 4.
8. P.W. 7 the Medical Officer of the District Hospital, Nadia conducted the post-mortem examination on the body of the deceased Nandarani and in his examination (Ext.2), held on 23.3.2000, found that death was due to asphyxia on account of strangulation which was ante-mortem and homicidal in nature. He also found a dhoti from the neck of the deceased. P.Ws. 9 and 10 were the Investigating Officers.
9. This is the substratum of the prosecution case based on the version of the child witness, who saw her grandmother being kidnapped on the night of 20.3.2000 by the appellants and subsequently her body being found, as deposed by P.Ws. 1, 2, 3, 6 and 10 (Investigating Officer) in the garden of Kumaresh Mondal (not examined) on 22.3.2000 at about 10-00 hours.
10. Shri Subir Ganguly, learned Counsel for the appellants (with Shri Kazi Safiuddin Ahmed and Shri Manas Kumar Das) made a number of points in support of his case. Shri Ganguly referred to the evidence of P.Ws. 1 and 3 and submitted that none of the husbands of the said two witnesses were examined although they were very relevant witnesses, who have deposed about the actual cause of the incidence. Shri Ganguly submitted that the failure of the prosecution to examine the husband of P.W.1 Manick was fatal. According to Shri Ganguly an adverse inference under Section 114(g) of the Evidence Act (for short, the said Act) should be drawn against the prosecution as in the event Manick was examined then the cause of quarrel, which was spoken by P.W.1, would have been ascertained. He submitted that since the prosecution has suppressed the genesis of the case the same was liable to be disbelieved. Shri Ganguly further submitted that the appellants were entangled in the matter falsely out of village rivalry.
11. Shri Ganguly, learned Counsel for the appellants showed from the evidence that although Shibbabu figured in course of the deposition of P.W.1 yet, he being a very important witness, was not examined which only shows the inherent weakness of the prosecution case on account of non-examination of vital witnesses. According to Shri Ganguly the case is based on circumstantial evidence and the chain is not complete. He pointed out that although according to the evidence of P.W.4 being corroborated by P.Ws.1 and 3, who spoke with regard to the kidnap of Nandarani, yet no steps were taken pursuant thereof--either to inform the police, or take any effective steps for tracing out the deceased Nandarani. Referring to the evidence of P.Ws. 1, 4 and 5 he submitted that non-examination of the male folk of the family also was a very pointing situation as there was a land dispute existing between the Nandarani and her sons and it could not be conclusively said as to how she died.
12. Referring to the evidence of P.W.4 the child witness Shri Ganguly submitted that the learned Trial Court did not examine the said child witness properly. His faculty was not adequately tested and the satisfaction of the learned Trial Court with regard to his ability to depose was not assessed; as such his evidence should not have been accepted by the learned Trial Court; more so, about the fact of kidnap by the appellants.
13. Winding up his submission Shri Ganguly submitted that P.W. 1, in fact, was not the original FIR maker; the police engineered the FIR against the appellants, who have falsely been implicated. He found that it was extremely surprising that no neighbours were examined and from the entire analysis of the events Shri Ganguly was of the view that it was a fit case where benefit of doubt ought to have been given to the appellants.
14. Learned Additional Public Prosecutor with Khondakar Jalal Ahmed for the State disputed Shri Ganguly's arguments and submitted that it was not only a case of circumstantial evidence but the direct evidence of the child witness (P.W.4) touching on the charge of Section 364 of the Indian Penal Code which stood unrebutted and could not be displaced. He quoted from the evidence that the appellants had a dispute with Manick, husband of P.W.1 and out of anger and not finding Manick in violent reaction thereof kidnapped Nandarani and murdered her, whose body was subsequently found. If the evidence of the child witness (P.W.4), his mother (P.W.3), and his aunt (P.W.1), learned Additional Public Prosecutor submitted, are read together it would show that the deceased Nandarani was kidnapped and subsequently murdered as there was an existing dispute between the appellants and the husband of P.W.1, who not being found all the anger fell on the deceased Nandarani.
15. Learned Additional Public Prosecutor discounted the version of Shri Ganguly with regard to the non-examination of two sons of the deceased Nandarani. He submitted both of them live at a distance and non examination of the said two witnesses cannot in any manner discredit the prosecution version.
16. So far as the question of dispute, as raised by Shri Ganguly, is concerned, learned Additional Public Prosecutor submitted that nothing has been done in respect of the same as in ordinary course of nature property would devolve on the two sons. More so, learned Additional Public Prosecutor submitted that Nandarani was dependent, as she was unable to see, on her sons.
17. Learned Additional Public Prosecutor submitted that if the evidence of kidnap matched with the recovery of the deadbody and the motive-quarrel, which is preceded, then there is no difficulty in believing the prosecution case.
18. Lastly, learned Additional Public Prosecutor wondered even if the two sons and Shibbabu were not examined by the prosecution, which, however, did not have any effect on the trial, the defence could have examined them by permission of the Court, which they have not been done and as such their objection in that regard is insustainable.
19. From what we have seen in the foregoing paragraphs if we build up the facts into a compact block we have before us :
The taking away of Nandarani by the appellants, as deposed by P.W.4 the child witness; and Detection of her deadbody in the jackfruit and mango garden two days thereafter, as spoken by P.Ws. 1, 2, 3 and 6.
20. We have very carefully heard the submissions made at the Bar and considered the evidence and other materials-on-record. We find that the gravamen of the prosecution case begins from the point when P.W.4 the child witness found while sleeping with his grandmother deceased Nandarani, the appellants came and kidnapped her by tying a piece of cloth on her mouth. This relates to the charge in respect of Section 364 of the Indian Penal Code.
21. Following this we have the recovery of the deadbody of Nandarani two days thereafter in the jackfruit and mango garden of one Kumaresh Mondal (not examined). The deadbody bore signs of injury and according to the Autopsy Surgeon (P.W.7) death was ante-mortem and homicidal in nature due to asphyxia. Fact of detection of the deadbody two days thereafter (on 22.3.2000) in the jackfruit and mango garden was spoken by P.Ws.1, 2, 3. 6 and the Investigating Officer (P.W. 10), who conducted the inquest on the spot. It is further established that after her kidnap Nandarani remained untraced till her deadbody was found in the manner and circumstances, as seen by us hereinabove.
22. Interspersed between the kidnap and recovery of the deadbody of deceased Nandarani the evidence of P.W.1 has to be read as very vital along with her sister-in-law (P.W.3).
23. P.W.1 has deposed that there was a dispute existing between her husband, Manick (not examined) and the appellant No. 1, who used to catch fish together in a lake, over the issue of missing of a fishing net the appellant No. 1 accused her husband. The appellant Nos. 1 and 2 chased Manick and in the same night of occurrence the appellant No. 2 came to her house and asked her to hand over Manick. He also threatened them with dire consequences of committing murder and setting fire in their room.
24. P.W.3 another daughter-in-law of deceased Nandarani spoke about dispute existing between Manick and the accused persons over missing of a fishing net. She also deposed that Nandarani was visually impaired.
25. With regard to the stay of the child witness (P.W.4) with her grandmother, Nandarani, his mother P.W.3 had categorically stated that the said child used to reside in the house of P.W.1 where Nandarani also resided. P.W.1 states that on the night of occurrence both Nandarani and P.W.4 the child witness slept in the varandah while she along with her baby (aged about two months), who was unwell, slept inside. Presence of P.W.4 in the house thus stands established from the said evidence.
26. Before proceeding further, we would like to discuss about the impact of the evidence of a child witness. Section 118 of the said Act stipulates that all persons would be competent to testify unless the Court considers they are prevented from understanding the questions put to them, or from giving rational answers to those questions by tender years, extremely old age, disease etc.
27. Since the child witness is competent to testify if it can understand the question put to it and give rational answers thereto. In the instant case we have found that the child witness (P.W.4) was properly tested before being examined by the learned Trial Court and his capacity to depose was also considered by the learned Trial Court.
28. Law is now well-settled that the testimony of a child witness who on account of his innocence is susceptible to being tutored should be accepted with greater caution and circumspection. But, however, where it is found to be voluntary and spontaneous there is no difficulty in accepting such evidence. Of course, necessary corroboration may be looked for.
29. We, on the basis of our appreciation of the evidence of P.W.4, feel that the learned Trial Court took sufficient precaution in assessing the faculty of the child witness (P.W.4). We have found from his cross-examination that he understood all the questions put to him and he withstood the rigours of detailed cross-examination.
30. We have now to see as to whether such kidnapping of deceased Nandarani was with the intention to commit murder and how far the appellants could the connected in the backdrop of the deposition of P.Ws.1 and 3, who have spoken of enmity and threat meted out by the appellants and the grudge they bore against Manick, the husband of P.W.1, who was not in the house on the relevant night, as seen from the cross-examination of P.W.1.
31. The circumstances relied upon by the learned Trial Court relates to the kidnap of deceased Nandarani; she was not traceable since then till such time her deadbody was recovered; her body was recovered from a garden of Kumaresh Mondal (not examined); that she died a homicidal death which was due to asphyxia as a result of strangulation, as spoken by the Autopsy Surgeon (P.W.7). We have to see whether such circumstances read in the light of the background of enmity, as seen from the evidence of P.Ws. 1 and 3, are sufficient to form an unmistakable link in the chain of circumstances to connect the appellants.
32. Well-settled principle, cemented by several decisions of the Supreme Court and various High Courts of the country lays down that in order to find an accused guilty on the basis of circumstantial evidence the test of the circumstance from which an inference or guilt is sought to be drawn must be cogently and firmly established and those should be of a definite nature unhesitatingly pointing to the guilt of the accused and such circumstances taken as a whole should form a complete chain so that there is no escape from such conclusion that except the accused none else was guilty.
33. Upto the point of kidnap we have the ocular evidence of P.W.4, child witness. We don't discard, as discussed hereinabove, his evidence simpliciter on the ground on his being a child witness. But, on the contrary, we have given sufficient credence to his evidence as he was found to be quite capable to answer the questions. We find that the appellants came on the fateful night and kidnapped his grandmother Nandarani, with whom he was sleeping on the varandah on the night of occurrence, by tying a cloth on her mouth. The cloth was also found by the Autopsy Surgeon (P.W.7) and in the inquest report [Ext. 6] (for whatever evidentiary value it was) the Investigation Officer (P.W.9) also noticed such a cloth on the neck of the deceased. This is a very challenging circumstance.
34. There is equally strong circumstance with regard to the threat given by the appellants on the night while they came to search for Manick, as we see from the evidence of P.W.1, and kidnapped Nandarani after having not found Manick.
35. Obviously the question would arise that if Manick was not found by the appellants why Nandarani was singled out ? From the evidence of the P.W.4 we find that after Nandarani was kidnapped towards dawn he again fell asleep which, however, is quite inconsequential and thereafter in the morning went to the house of P.W.3, his mother.
36. Few things, which have to be taken, note of. P.W.4 at the time of the occurrence he was 8 years old when he found that the appellants came and took away his grandmother and he again fell asleep thereafter. It is quite unusual to note that as to why he neither did raise any alarm nor he instantaneously contacted P.W.1, who was sleeping inside the room, which was very normal and probable human conduct. That apart, when in the morning P.Ws. 1 and 3 were informed about such incident of kidnapping both of them kept quiet nor their men folk, who were away came and lodged any information with the police over the said incident.
37. These are unanswered questions, which keep a hole in the prosecution case. From the cross-examination of P.W.9 we find that he could not detect any previous general diary about the missing of said Nandarani, even if men folk of the household of P.Ws. 1 and 3 were not there. Such a serious incident involving the kidnapping of their mother-in-law was not reported anywhere is rather mysterious.
38. Far enough, after two days when the deadbody of Nandarani was recovered P.W.1 lodged the FIR, which contained the name of the two appellants. But, as we have seen the circumstances, which have weighed in the mind of the learned Trial Court whether it would be sufficient to form a complete chain excluding all other reasonable hypothesis inconsistent with the innocence of the appellants. There we find several missing links like the conduct of P.W.4, who kept quiet after the incident of kidnap took place, even if he was traumatized which in all probability he could have been what prevented him from informing P.W.1 after the miscreants have left, remains unanswered. Similarly, even after P.W.1 and P.W.3 came to know about the factum of kidnap of their mother-in-law, deceased Nandarani neither of them nor their men folk took any steps to inform the police or other village elders which is a very clear circumstance by itself and it is only after the detection of the deadbody on 22.3.2000 law was set on motion.
39. The missing link in the set of circumstances snaps the chain. Even if there was strong suspicion in order to find the accused guilty there has to be some legal proof. Suspicion though a ground for scrutiny of evidence at first before the Court it cannot be the basis of a judicial decision.
40. To connect the appellants with the crime with the aid of the evidence of P.Ws.1 and 3 by imputing motive has also been considered by us very carefully. Motive would have gathered additional importance if the evidence had showed the appellant nursing a strong motive committed the crime and all the circumstances proved by the prosecution excluding the reasonable possibility of any one else other than the appellant being the culprits in the chain of evidence, the same can be considered to hold the appellants guilty. However, in the present case on account of absence of clear and cogent evidence pointing to the guilt of the accused persons the proof of motive, however, strong, cannot by itself sustain the conviction.
41. The recovery of the deadbody of the deceased from- the jackfruit and mango garden of Kumaresh Mondal (not examined) on 22:3.2000 at about 10-00 hours which has been deposed by P.Ws. 1, 2, 3 and also P.W. 6, who was witnessed to the inquest and including the Investigating Officer (P.W.9) keeps one point vague i.e. how and who first located the deadbody. Upon a very close discussion of P.W. 1 we find "Thereafter the deadbody of my mother-in-law was found after 2 days thereof in a garden of jackfruit and mango. I found the deadbody of my mother-in-law." This shows that P.W.1 was the first person to detect the deadbody. In the First Information Report (Ext.3) scribed by P.W. 8 lodged after nearly four-and-half hours after the said body was recovered. It reveals : "Today on 22.3.2000 at about 10 a.m. my mother-in-law Nandarani Mondal was found dead in the jackfruit garden of Kumaresh Mondal of Ramnaagar Mathpara." She further stated in the said First Information Report (Ext. 3) that she had "strong determination (read suspicion) is that above accused persons murdered my mother-in-law by suffocating tiding cloth in her neck. Be it noted that she was not found earlier by thorough search."
42. Let us see the evidence of the scribe (P.W.8), which is very vital in the fact situation of this case. He deposed that he did not "know about any incident took place by and between Nandarani Mondal and the accused persons."; although P.W.1 and the accused persons are his co-villagers. He stated in his deposition "I do not remember if any one was present there at the time when I wrote the written complaint. This is the written complaint written and signed by me. The said signature appearing in the written complaint is marked as Ext. 3. The name of Rinku Mondal was written in my pen under the thumb impression appearing in the written complaint. I wrote the name of Rinku Mondal at the instruction of police of Tehatta P.S. who stated me to write the name of Rinku Mondal under said impression." In his cross-examination he admitted that he had no personal knowledge about the incident, which was written in the complaint as per instruction of the police.
43. This evidence gathers serious importance as even though he was a co-villager (and he was not turned hostile) his evidence does not prove anything with regard to the incident, except the circumstances under which the FIR was lodged.
44. A First Information Report can be used to corroborate or contradict the subsequent evidence of the author of the same. P.W.1, who lodged the FIR (Ext. 3) on very salient point, dithered from her earlier version. In her First Information Report she specifically stated :
"He (read appellants) kidnapped my mother-in-law Nandarani Mondal as they did not find my husband. They told that if your husband is not available then your mother-in-law has also will not be available. Saying this, they took away my mother-in-law by binding cloth in her mouth. At the time of going away they threatened us that they will murder us if we sought or said this incident to anybody. I could not lodge complain in fear of my life."
45. Her evidence in Court on 3.7.2002 (i.e. just after two years three months thirteen days) does not contain these averments.
46. In her First Information Report (Ext.3) she did not speak about the appellant No. 1 and her husband Manick catching fish in a beel and the issue of the missing fishing net, which for the first time she deposed in Court.
47. The evidence of P.W.1 stands contradicted to that extent. But, we have to see whether the same simply would have any effect on the prosecution case, P.W.10 the Investigating Officer in his cross-examination stated that P.W.4 did not tell him that at the time of kidnapping of his grandmother the accused persons showed hansua; neither did he tell him that he had asked the accused persons about the place where they were taking his grandmother. P.W.10 also stated in his cross-examination that P.W.3 did not state before him that eight days before the incident there was a difference between the appellant No. 1 and the husband of P.W.1.
48. These contradictions has to be understood in the backdrop of the circumstances which we have discussed hereinabove.
49. The circumstances which we have seen has to be appreciated in the light of the evidence of P.Ws. 1 and 3, who spoke about previous enmity and the threat given by the appellants. We concentrated on the evidence of the P.W.1 with regard to the same. As we have seen she differed from her version with regard to the mode and nature of threat given by the appellants and the issue over which there was a dispute. The same would simply diminish the thrust of her evidence in this regard. No doubt true that the past conduct as a circumstance can be admitted in evidence under Section 8 of the said Act as a threat constitutes motives and explains the antecedent conduct of an accused. Motive as a circumstance is relevant in a case based purely on circumstantial evidence. The proof of motive only lends additional strength to the prosecution case but it cannot supplement the deficiency of the prosecution case.
50. Before proceeding further we cannot be oblivious of the fact that there is evidence of last seen together, if we have to accept the evidence of P.W.4 the child witness, of deceased Nandarani in the company of the appellants. The last seen together is a piece of circumstance and a conviction can be based on the basis of the same; but, however, it has to be kept in mind that the same is an extremely weak piece of evidence which only can be taken into account if there are other surrounding circumstances lending assurance to the main prosecution case. The mere fact that deceased Nandarani was last seen alive in the company of the appellants together by P.W. 4 in their house prior to her death, two days thereafter when she was kidnapped does not by itself lead to the irresistible inference that the appellants have murdered the deceased in view of such incongruity noticed by us.
51. Similarly the past conduct of an accused, although is a circumstance, and such evidence of threat (as we find from the evidence of P.W.1) is a fact relevant and can be read as res gestae and can link the accused with the crime on the basis of such evidence. But, the past conduct can only be taken into account to form the basis of a foundation of guilt only when the other circumstances bring full proof evidence to connect the appellants.
52. Suspicion, however, strong it may be it cannot take the place of legal proof. There is a lot of difference between legal proof and moral conviction and unless the judicial conscience of the Court is satisfied it would be unsafe to record an order of conviction.
53. We have very carefully considered the evidence and other materials on record notwithstanding we have taken into account grisly nature of the incident where a visually impaired geriatric lady was kidnapped and subsequently found murdered in an orchard; but there has to be legal proof and suspicion, however, strong cannot take place of legal proof. Legal proof and moral conviction are two separate things. The rules of evidence cannot be departed from even if there may be a strong conviction of guilt. Judicial belief, according to our humble view, must be found on very reasonable ground raised upon evidence, irresistible inferences drawn therefrom and nothing else.
54. As we have found there are several grey areas in the prosecution case. Unless there is full proof it would be unsafe to form such a conviction. The Supreme Court in Sudama Pandey and Ors. v. State of Bihar, , held that:
"...the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions."
55. In view of the aforesaid discussion we are of the considered opinion that there is a veritable missing link in the chain of circumstances and the prosecution it cannot be said has been able to prove its case to the hilt against the accused/appellants. They are in our view, entitled to the benefit of doubt.
56. Accordingly, we allow the appeal and set aside the conviction and sentence recorded by the learned Trial Court and direct that the appellants be released forthwith.
57. Appeal allowed.
Sankar Prasad Mitra, J.
58. I agree.