Calcutta High Court (Appellete Side)
Nantu Roy @ Kalyan Roy vs The State Of West Bengal on 4 December, 2013
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Ashim Kumar Roy
And
The Hon'ble Justice Subal Baidya
C.R.A. No. 522 of 2003
Nantu Roy @ Kalyan Roy
Versus
The State of West Bengal
with
C.R.A. No. 525 of 2003
Smt. Aparajita Bose @ Munmun
versus
The State of West Bengal
For Appellant : Mr. Jayanta Narayan Chatterjee,
Mr. Shatarup Purkayastha,
Mrs. Paramita Mukhopadhyay,
Ms. Debapriya Mukherjee,
Mr. Dwaipayan Biswas,
Mr. Apalak Basu.
(for the appellant in CRA No. 525/2003)
For State : Mr. Manjit Singh, P.P.,
Mr. Syed Shamser Ali
For the appellant : Mr. Tarique Quasimuddin,
Mrs. Zainab Tahur.
(for the appellant in CRA No. 522/2003
For Anuradha Bose,
mother of the deceased,
Kunal Bose : Mr. Abhisekh Sinha.
Mrs. Anasuya Sinha
Heard On : 4.4.2013, 5.4.2013, 8.4.2013, 9.4.2013,
17.4.2013, 24.4.2013, 25.4.2013, 26.4.2013, 3.5.2013, 7.5.2013,
8.5.2013, 13.5.2013, 15.5.2013 and 16.5.2013.
Judgement On : 04.12.2013.
ASHIM KUMAR ROY, J.:
In a joint trial held before a Sessions Court the appellant Nantu Roy @ Kalyan Roy was found guilty on two counts, firstly, for committing offence punishable under Section 302/120B IPC and then for the offence punishable under Section 302/34 IPC and was sentenced to suffer imprisonment for life and to pay fine with default clause on both counts. Whereas the accused Aparajita Bose @ Munmun was found guilty under Section 302/120B of the Indian Penal Code and thereunder sentenced to suffer imprisonment for life and to pay fine with default clause.
The convict Nantu Roy @ Kalyan Roy in C.R.A. No. 522 of 2003 challenged his conviction and sentence and after admission of appeal, a Division Bench of this Court on August 17, 2005 suspended his sentence and released him on bail pending hearing of the appeal.
Similarly, the convict Aparajita Bose @ Munmun challenged her conviction and sentence in C.R.A. No. 525 of 2003. The said appeal was admitted, but on 11th of November, 2005 a Coordinate Bench turned down her prayer for suspension of sentence. Finally, on 10.4.2013 her sentence was suspended by this High Court and she was released on bail as there was no progress in the appeal and after her detention in custody for more than 12 ½ years and on the background the co-convict the principal accused was on bail.
2. In gist the prosecution case goes like this;
"On May 26, 2000 at around 9.30 p.m. some passers-by while crossing Khanaberia village within the Police Station Tiljala, on hearing human screaming rushed towards that direction and found a person lying on the road with bleeding injuries. When the injured appealed to them to save his life and told that he had his wife and two minor children and it was one Kalyan Roy @ Nantu Roy with accused Gautam assaulted him and caused those injuries at the instigation of his wife Aparajita Bose @ Munmun, who developed an extra-marital affairs with the accused Kalyan Roy. Thereafter, those passers-by called a police patrol van and removed the injured to the hospital in the said van. However, at the hospital the injured was declared brought dead.
3. During investigation police examined the said passers-by and the police personnels who removed him to the hospital in a police vehicle. Since the dead body was cremated before identification, the victim was identified by his mother from the photograph of the dead body, as her son Kunal and from his personal belongings seized from his person and the place of occurrence. In the meantime, there was wide publications about the incident, in print as well as in electronic media that the victim was allegedly killed by the appellant Kalyan Roy with the help of one Gautam at the instigation of his wife Aparajita Bose @ Munmun who developed a love affairs with the accused Kalyan and wanted to get rid of him. Before her arrest the accused Aparajita Bose @ Munmun allegedly confessed her guilt before her mother-in-law and others. Police also recovered a written document appears to be the purported last Will of the victim from his office drawer.
After conclusion of investigation police submitted charge sheet against the appellants showing the co-accused Gautam as absconder.
4. In the trial the prosecution to prove its case completely relied on circumstantial evidence and to prove those circumstances examined as many as 41 witnesses. Whereas no witness was examined in his defence by the convict Nantu Roy @ Kalyan Roy, however, the convict Aparajita Bose @ Munmun examined herself as DW/1 and her brother was examined as a Court witness.
5. The following are the circumstances relied upon by the prosecution to prove its case against the appellants.
a) The evidence of the Autopsy Surgeon that Kunal suffered a homicidal death and due to the ante mortem injuries found in his person.
b) Identification of the dead body as that of the victim Kunal and his belongings.
c) The dying declaration of the victim Kunal made to the passers-by and the police personnel when they were removing him to the hospital in an injured condition in the police vehicle and recovery of one document in the nature of a Will from the office drawer of deceased Kunal, Ext.-5 in which Kunal disclosed his apprehension that he might be murdered by the appellant Nantu.
d) Before leaving his house on the fateful evening at around 6 p.m. the deceased Kunal told his mother in presence of another that he was going to meet appellant Nantu at Gariahat and since Kunal did not return home, after two days on 28th of May, 2000 his mother lodged a missing diary with the police.
e) The appellant Munmun left her matrimonial home before missing of Kunal and returned on 31st May, 2000 even though was allegedly informed about the missing of Kunal.
f) Munmun visited the office of the deceased Kunal before he was traced out, to collect information whether Kunal had any LIC policy or a widow would get a job in place of her husband.
g) The relation between deceased Kunal and the appellant Munmun got strained due to her closeness with appellant Nantu.
h) Extra judicial confession of appellant Aparajita @ Munmun before her arrest.
i) Telecast in Door Darshan about the incident of murder of Kunal.
j) Seizure of Ambassador Car of Nantu with foot-mat and on forensic examination the foot-mat was found to be blood -stained.
k) Recovery of the offending weapon at the behest of the appellant Nantu.
l) On 2nd of June, 2000 appellant Nantu had been to Parama Investigation Centre in search of missing Kunal, at that time he was shown the photographs of Kunal and his belongings, but he denied that those were of deceased Kunal and he misled the police by giving wrong description of Kunal.
6. The prosecution case that victim suffered a homicidal death and due to the multiple ante mortem injuries found in his person, was never disputed from the side of the appellant. We also going through the evidence of PW/24 Dr. S. Batabyal, Autopsy Surgeon and the post mortem report Ext.-15, have no reason to take a contrary view.
7. A very crucial question crept up in this matter on the point of identification of the victim that he was Kunal Bose, son of the PW/10 Anuradha Bose, since on June 2, 2000 the dead body was cremated at Dhapa Chulli (burning ghat) before the same was identified as deposed by the Investigating Officer of the case PW/41 Biswanath Halder at pages (394/ 396 of the paper book) and from the evidence of other witnesses. However, during the trial PW/10 Anuradha Bose identified the same as that of the dead body of her son Kunal Bose from his photographs Ext.-8 taken before cremation (page 116 of the paper book). Similarly, the wearing apparels and the personal belongings of Kunal viz., key ring, comb and wrist watch were identified by his mother Pw/10, Anuradha Bose and were marked material Ext. I and II (page 75 of the paper book). Such evidence could not be impeached from the side of the defence. Accordingly, we accept the prosecution case that the victim was Kunal Bose son of the PW/10 Anuradha Bose.
8. The one of the very vital circumstance, the prosecution pitted against the appellants is the unrecorded oral dying declaration of the victim Kunal.
(a) The oral dying declaration is no doubt a very important piece of evidence and there is no legal prohibition to accept the same and make it foundation of conclusion of guilt of an accused when the same is found free from all infirmities. But before such last statement can be acted upon, the court must be satisfied about the credibility of assertion of the witness on the question of such dying declaration and then truthfulness of the same and that the declarant was in a fit condition to make such statement. Out of same it is most important that the witnesses who depose about making of such oral dying declaration by the deceased, must pass the scrutiny of reliability. In this regard reliance may be placed in the following decision of the Apex Court,
(a) Ramsai Versus State of M.P. reported in AIR 1994 SC 464:
(b) Heikrujam Chaoba Singh Versus State of Manipur reported in AIR 2000 SC 59.
(c) State Versus Krishna Master reported in (2010) 12 SCC 324 In this regard the observation of the Apex Court in the case of Paniben Versus State of Gujarat reported in (1992) 2 SCC 474 was as follows:
A dying declaration is entitled to great weight. It is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction on the same without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(b) The prosecution examined PW/1 Dipu Sarder, PW/2 Kesto Mondal, PW/3 Sujit Kumar Mondal, PW/4 Kamal Mondal, PW/5 Haridas Mondal and four other police personnel PW/6 Dinesh Chakraborty, PW/7 Manindranath Biswas, PW/8 Jatindranath Kundu and PW/9 Taraknath Mondal in support of the oral dying declaration of the victim.
However, PW/1, PW/2 and PW/3 were declared hostile during the trial. Accordingly, the learned counsel for the appellant urged no part of their evidence can at all be relied upon to decide the prosecution case against the convicts. However, from the rival side two decisions of the Hon'ble supreme court, one in the case of Bhajju alias Karan Singh versus State of Maharashtra reported in (2012) 4 SCC 327 and another in the case of Haradhan Das versus State of West Bengal reported in (2013) 1 C CR L R (SC) 569 were relied upon and it was contended that the examination-in-chief and cross-examination of a hostile witness can very well be acted upon insofar as that supports the case of the prosecution. It was then submitted the PW/1 was declared hostile since he did not support the prosecution case on the factum of dying declaration, however when was examined with reference to the footage of Khas Khabor, a programme telecast in Door Darshan, the said witness openly admitted that he was told by the injured that he was assaulted by Nantu, therefore, in the light of the ratio of the aforesaid two decisions, it can very well be held the PW/1 supports the prosecution case on that score and his evidence to that extent can be acted upon.
Now when we examined the evidence of PW/1 with reference to his testimony as regards to the question of T.V. footage, we find the said witness corroborated the prosecution case that the injured before his death disclosed to him that he was assaulted by Nantu, but in his next sentence he claimed that he was directed by the police to say so. Then again the said witness while was examined by the learned Public Prosecutor, once again claimed that in his own volition he disclosed in T.V. what he heard from the injured, but in next breath the PW/1 said that he did not make such statement voluntarily. Even though it is well settled merely because a witness has been declared hostile, his entire evidence does not get washed off and there is no legal bar to use his evidence in chief and cross-examination which supports the prosecution case. But at the same time law does not permit to act on that part of the evidence of a hostile witness in respect whereof he made contradictory statements at the different stage of his deposition and claimed to have made such statement at the behest of the police. Then again we find, the appellants were never examined under section 313 CrPC with reference to the evidence of the PW/1, thus, in any event, no part of evidence of the said witness can be taken into consideration against them. There is no force in the submission of the counsels of the respondents and in view of the position as aforesaid, no part of the evidence of PW/1 can at all be taken into consideration against the appellants.
(c) The PW/2 and PW/3 were examined by the prosecution in support of it's case that the victim gave a dying declaration implicating the appellants, which both of them denied and were declared hostile, therefore, evidence of those two witnesses is of no use.
(d) So far as the evidence of PW/4 and PW5 are concerned, we find that according to his own admission in cross-examination, the PW/4 did not visit either Parama Investigation Centre or the Tiljala Police Station after the incident and met the police 5/6 months thereafter and during the said period of 5/6 months neither police examined him nor recorded his statement. Similarly, from the cross-examination of PW/5 we find that after returning home from the place of occurrence he had no occasion to meet the police, but it is not clear from the recording of his depositions by the trial Judge, what was his answer when he was cross- examined by the defence on the point as to when he was examined by the police after the occurrence and the PW/5 also admitted that he did not visit Taljala P.S. or the Parama Investigation Centre on the same night, but on some other days. In the aforesaid background, we are of the opinion it will not be safe to rely upon the PW/4 and PW/5.
(e) Apart from the aforesaid witnesses, the PW/6, PW/7, PW/8 and PW/9 also claimed to have heard from the injured by whom and under what circumstances he was assaulted while the said witnesses were removing the victim to the hospital in a police van. However, the learned counsel for the appellants vehemently contended that those witnesses being police personnel no reliance can be placed on their such evidence without same being corroborated by any independent source. We are unable to accept such contention of the counsel of the appellants. There is no legal impediment to act on the evidence of police personnel and their evidence never stand self-condemned. Furthermore, the police personnel PW/6, PW/7, PW/8 and PW/9 never took part in the investigation and during their routine duty of patrolling in the locality, on being informed by the passers-by that a person was lying injured, they removed the said injured to the hospital. According to the prosecution the injured made his dying declaration on his way to the hospital inside the police vehicle and at the hospital the attending doctor declared him brought dead. In such a situation no other facilities were readily available to record the statement of the victim by a Magistrate or by a doctor. No material was brought to our notice which may suggest that the victim had no capacity to make any statement and the aforesaid four witnesses who were thoroughly cross-examined, were lying on that score. Thus it would not at all be justified to outright reject their evidence simply because they are police personnel.
(f) With reference to the evidence of PW/6, PW/7, PW/8 and PW/9, it was contended by the learned advocate of the appellants that at the behest of the investigating agency they have introduced a false story of dying declaration. The learned advocates then pointed out that according to the prosecution case, the aforesaid four witnesses and PW/1, while removing the injured victim to the hospital in a police van, the victim made such dying declaration and at the hospital after he was declared brought dead, all of them together returned to the police station and the PW/1 lodged the FIR, but there was no mention about such dying declaration in the FIR. In this regard it was vehemently contended, even assuming that PW/1 by mistake did not mention anything about the dying declaration in the FIR, but there was no plausible explanation as to what prevented the said four, either to remind the PW/1 about such dying declaration or to refer the same to the police on their own and this omission clearly falsified the factum of dying declaration.
We find from the evidence on record that the investigating officer of the case PW/41 soon after he returned from the hospital, at dawn, examined all of them and recorded their statements under section 161 CrPC in which factum of dying declaration was very much there. Indisputably, the witnesses shortly after the incident and at their earliest opportunity divulged to the investigating officer about what they heard from the victim Kunal. There is no evidence that when the PW/1 was lodging the FIR either of them was present with him. We, therefore, have no valid reason to disbelieve them.
(g) Next, with reference to the evidence of PW/34 it was contended that injured was brought to the hospital by the PW/6 Dinesh Chakraborty and on his statement the column specified in the injury report for recording the short history of the case was filled up, but there was no mention about the dying declaration. It was further submitted that so far as what has been stated by the victim in his dying declaration, the evidence of four police personnel were not consistent with each other.
It is true that in the injury report Ext. 28, at the space provided for recording short history of the case, nothing has been noted about the dying declaration although that part was filled up on the version of the PW/6, who during the trial deposed about the same. We find during his cross-examination, such omission was brought to the notice of the PW/6 and he admitted the same but there was no further cross-examination on that score to discredit him. In our opinion, mere omission of this nature is not per se fatal and adversely affects the credibility of any witness unless it is shown that subsequent disclosure was the result of due deliberation and motivated and in the present case the witness disclosed such fact to the investigating officer of the case shortly.
(h) Now on the question of acceptability of a dying declaration, we propose to borrow, the observation of a Constitutional Bench of the Apex Court, at paragraph 3 in the of case Laxman versus State of Maharashtra reported in 2002 C Cr L R (SC) 1022, and the same is quoted below:
The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species evidence on account of the existence of any circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identified the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. (para 3) In its aforesaid observation Apex Court sounded a note of caution that while acting on a dying declaration the court has always to be on guard to see that the statement of the deceased was not a result of either of tutoring, or prompting or a product of imagination.
(i) According to the prosecution case, as soon as the witnesses being attracted by the screaming of the injured the PW/1, PW/2 and PW/3 rushed to the spot and called the police patrolling van and removed him to the hospital. Although PW/1, PW/2 and PW/3 were declared hostile, but on that score they never contradicted themselves.
There is no dispute that neither the victim nor the appellants were known to the PW/6, PW/7, PW/8 and PW/9 and the dying statement was made within a short span from his rescue and removal to the hospital, therefore the question of tutoring or prompting can safely be ruled out. Now, coming to the other note of caution sounded by the Hon'ble Apex Court that the court is to satisfy that the dying declaration was not a product of imagination we propose to first see what was the actual statement of the injured before the said witnesses. According to the PW/6, PW/7, PW/8 and PW/9, in his last statement the victim Kunal made direct allegation against the appellant Nantu and Gautam that they had assaulted him, but so far as Munmun is concerned, he disclosed such assault was made at the instigation of Munmun. Therefore, such statement was of two parts, in first part while the appellant Nantu and absconding accused Gautam were directly implicated for causing injuries to the victim, in the next part Munmun has been implicated for instigating them. In this case apart from the oral dying declaration, the prosecution also brought on record a written document Ext.-5. The PW/10 Anuradha Bose, the mother of the victim proved that his son deceased Kunal was the author of the same and her such evidence was never challenged from the side of the defence. On perusal of Ext.-5 we find same is in the nature of last testament of the deceased and also contained his apprehension that he might be killed by the appellant Nantu. The said document also contained some remarks against appellant Munmun and she was described as a great fool and always guided by the others. Although according to the PW/10, the mother of the victim and their maid PW/15 the relation between Kunal and appellant Munmun became strained due to her closeness with Nantu, but when in Ext.-5 Kunal disclosed his apprehension against Nantu and nothing against Munmun of that sort, except describing her a great fool and guided by others, undoubtedly Kunal was not anticipating any threat towards his life from the side of Munmun. It is very pertinent to note that Ext.-5 was written by him on the day before the day of his murder. Thus, in his oral dying declaration, admittedly, the victim made a general expression indicating his suspicion against Munmun without attributing any direct role to her related to the occasion of his death. Any general expression indicating suspicion against a particular individual without attributing any direct role to him in the commission of the offence, more particularly when some other contemporaneous materials having stronger probative value disclosed the person who expressed his suspicion subsequently had no occasion to bear any such suspicion, ought to be excluded from consideration. Although the victim in his dying declaration attributed direct role to the accused Nantu and Gautam for causing injuries which resulted in his death, but against Munmun it was his guess and suspicion that he was assaulted at her behest. Now on the face of the Ext.-5, we are of the opinion the question of implications of Munmun in the offence by the victim in his last statement cannot be ruled out as a product of his imagination. So far as Nantu is concerned, the case is otherwise, and we are of the opinion that the dying declaration of the victim before the PW/6, PW/7, PW/8 and PW/9 can very well be taken into consideration against him, but of course, only as one of the links in the chain of circumstances.
However, the Ext.-5 cannot be used against the appellant Nantu for the simple reason the same was not put to him during his examination under section 313 CrPC.
In this regard reliance may be placed in the case of Saradh Bin Chand Sarda Versus State of Maharashtra reported in 1984 SCC (Cri.) 487 and Nanhar Versus State (2011) 1 SCC (Cri.) 175.
9. (a) The prosecution had also relied on an another crucial circumstance against the appellant Nantu and in this regard prosecution relied on the evidence of PW/10 Anuradha Bose, the mother of deceased Kunal and on the evidence of PW/14 Tarak Das who happened to be a tenant of Kunal having his laundry shop situated in the same premises at the ground floor. According to PW/10, on 26th of May, 2000 at around 6 p.m. Kunal left his house telling her that he was going to meet Nantu who will be waiting for him at Gariahat crossing. This evidence was corroborated by PW/14 Tarak Das who claimed that Kunal was talking with him when his mother PW/10 asked him where he was going and Kunal told her that he was going to meet Nantu, who will be waiting for him at Gariahat crossing. That apart, PW/13 Ketan Sengupta, a friend of deceased Kunal also corroborated such facts and claimed on May 27, 2000 in the morning he received a call over phone from PW/10 Anuradha Bose, the mother of the deceased that Kunal on the previous evening left home, telling her that he was going to meet Nantu at Gariahat crossing.
The aforesaid piece of evidence was thwarted from the side of the appellant with reference to the missing diary lodged on the next day by the PW/10 with Lake Police Station. It was contended in the said missing diary nothing was disclosed about the fact that Kunal while leaving home informed his mother that he was going to meet the appellant Nantu and disclosed that her son left house without telling her where he was going. According to the learned counsels for the appellants, such omission is very vital and makes the prosecution case on that score completely unreliable.
We have very carefully examined the deposition of PW/10 Anuradha Bose and find she all through claimed that before leaving house on the fateful night she was informed by Kunal that he was going to meet Nantu at Gariahat crossing and thereafter he was never returned and found murdered. We also find in her evidence she further claimed on the next day she lodged a missing diary and such missing diary was in writing and signed by her. However, neither the said written complaint about the missing of Kunal was exhibited during the trial nor we have found the same with the records. The Ext.-C is the missing diary with reference to which the counsel for the appellant sought to discredit the PW/10 was very carefully perused. We find that Ext.-C is the part of the general diary entry where the factum of missing of Kunal was recorded on the basis of the statement of his mother, PW/10, but in the said G.D. the signature of PW/10 was not obtained. We further find the police officer who recorded such G.D. was not examined during the trial and we do not find anything from the record as to how the same was brought on record and was exhibited. Although, the PW/10 was very much cross- examined on both the count that she did not mention in the G.D. about the fact that before leaving home Kunal informed her that he was going to meet Nantu at Gariahat and next, on the point that she in the G.D., disclosed that her son left home without telling her where he was going. In reply to the first question she admitting the same, claimed as was requested by Nantu his name was not referred there, but so far second question is concerned, she denied to have mentioned the same in the G.D. We, however, going through the Ext.-C, find while it was not mentioned therein that before leaving house Kunal told her mother that he was going to meet Nantu at Gariahat, but it was noted that Kunal left home without intimating her where he was going. However, having regard to the fact that the concerned police officer who recorded the G.D. was not examined and on the face of repeated claim of the PW/10 that the police was informed about the missing of her son in writing, but when same was not forthcoming and as we do not find any materials to show how the G.D. was exhibited, while we accept the explanation of PW/10 as to why there was no reference about Nantu in the missing diary, but in absence of the written complaint and when the police officer who recorded the missing diary was not examined during trial, we are not inclined to give any importance to the above omission. Now coming to the evidence of PW/14 Tarak Das and PW/13 Ketan Sengupta, we find both of them fully corroborated the PW/10 to the extent that while leaving home Kunal told her that he was going to meet Nantu at Gariahat-Crossing. All the aforesaid three witnesses were cross-examined at length by the defence but nothing emanated from their such cross- examination which may creates any suspicion as to their credibility. We therefore, accept the prosecution case while leaving house on May 26, 2000 at about 6 p.m. Kunal informed her mother that he was going to meet Nantu who will be waiting for him at Gariahat crossing. Such evidence of PW/10 and PW/14 with regard to the statement made by the deceased Kunal is no doubt hearsay, but is admissible under Clause 1 of Section 32 of the Evidence Act, inasmuch as same relates to a circumstance of the transaction which has some proximate relation to the actual occurrence. The victim Kunal left home at 6 p.m. and while leaving home informed PW/10 in presence of PW/14 that he was going to meet the appellant Nantu and around 10.30 at night he was found lying injured in a place situated within an area of Tiljala Police Station and when was removed to the hospital he disclosed to the persons rescued him that it was Nantu who with the help of Gautam assaulted him.
In this regard a three-Judge bench decision of the Apex Court in the case of Kans Raj Versus State of Punjab reported in AIR 2000 Sc 2324 is found to be quite relevant and observation made in para 10 thereof was as follows:
Section 32 of the Evidence Act is admittedly an exception to the general rule of exclusion to the hearsay evidence and the statements of a person, written or verbal, of relevant facts, after his death are admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32, for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words "as to any of the circumstances of the transaction which resulted in his death" appearing in Section 32 must have some proximate relations to the actual occurrence. In other words, the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. The phrase "circumstances of the transaction" were considered and explained in Pakala Narayana Swami v. Emperor, AIR 1939 PC 47 : (1939 (40) Cri LJ 364):
"The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction"
is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence: though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that "the cause of (the declarant's) death comes into question."
From the side of the appellant to impeach the circumstance that Kunal left his house at 6 p.m. on May 26, 2000 much reliance was placed on the evidence of PW/24 the doctor who held the post mortem. It was contended that the PW/24 found undigested food particles in the stomach of Kunal and according to the said witness, it takes 6/7 hours for complete digestion and within 3 hours the food will be partly digested. It is then contended if Kunal left home at 6 p.m., then how at 11 p.m. when he was found dead after 5 hours, undigested food particles would be found in his stomach. In absence of any evidence that after deceased Kunal left home he consumed nothing, we find no merit in the submission of the learned counsel of the appellant and the circumstance the deceased Kunal on May 26, 2000 at about 6 p.m. while leaving house informed his mother in presence of PW/14 that he was going to meet Nantu at Gariahat crossing stands proved.
10. It was also the case of the prosecution that Munmun left her matrimonial home about a week back from the day when Kunal was found missing and although she was informed sometime on May 28, 2000 after lodging of missing diary, she returned home on May 31, 2000. This evidence was brought on record by the prosecution examining PW/10 Anuradha Bose, the mother of the deceased Kunal as also the PW/15 the maid servant and the aunt of deceased Kunal PW/16 Mira Bose. According to PW/10, she sent such information to Munmun at her parents' home through PW/13 Ketan Sengupta, a friend of her son and PW/13 on May 29, 2000 had been to the parental home of Munmun and informed her about the incident, but she returned in the evening of May 31, 2000. However, from the evidence of PW/13 Ketan Sengupta, we find that he never corroborated PW/14 on that score. On the other hand, according to the PW/13, at about 12 noon on May 27, 2000 he had been to the house of deceased Kunal when Kunal's wife and other relations were present and at that time he told them that he suspected Nantu has committed the mischief. Having regard to the above evidence of the PW/13 Ketan Sengupta, the prosecution case that Munmun returned to her matrimonial home only on May 31, 2000 although was informed about the missing of her husband on May 29, 2000 becomes completely unworthy of credit and this circumstance against the appellant Munmun fails.
11. It was also the case of the prosecution that the appellant Munmun left her matrimonial home on May 18, 2000 and although it was known to her that her husband was missing from 26th of May, 2000 still she did not return until May 31, 2000, but in the meanwhile on May 29, 2000 she had been to the office of Kunal accompanied by Nantu to search his office drawer to find out whether he had any LIC Policy and for ascertaining whether a widow of a deceased employee was entitled to a job in his place. This piece of evidence was brought on record so as to establish that killing of her husband was known to Munmun before hand and she was involved in the conspiracy with Nantu. The trial Judge accepted such version of prosecution that Munmun visited the office of her husband on May 29, 2000 on the evidence of PW/10 Anuradha Bose, mother-in-law, PW/15 Puspa Rani Halder, maid servant and PW/16 Mira Bose, aunt of the deceased Kunal, but from their evidence it is clear the witnesses had no direct knowledge as to when Munmun had been to Kunal's office and therefore that part of their evidence is not admissible. We further find, the trial court completely overlooked the evidence of PW/17 Chittaranjan Giri, an office colleague of the deceased Kunal, who was the only witness examined by the prosecution to prove such visit. The PW/17 never supported the evidence of PW/10, PW/15 and PW/16 that Munmun visited Kunal's office on May 29, 2000 and according to him, it was either on May 31, 2000 or June 1, 2000. Admittedly, Munmun returned to her matrimonial home on May 31, 2000. It is pertinent to note in her examination under section 313 CrPC when a question was put to Munmun that she visited the office of Kunal either on 31.5.2000 or on 1.6.2000 to ascertain whether Kunal had any LIC Policy or not and whether a widow is eligible for a job in place of her husband, she admitted that she visited Kunal's office, but for collecting his salary and with the permission of her mother-in-law. In his cross-examination PW/17 Chittaranjan Giri however admitted that before he deposed in court neither he was examined by the police nor his statement was recorded and he came to learn from one Tamal Sarkar, best friend of Kunal that man who accompanied Munmun was Nantu. Therefore, it is an admitted position that Nantu was not known to the PW/17 Chittaranjan Giri and the PW/17 came to know from one Tamal Sarkar that it was Nantu who accompanied Munmun, in such a situation holding of T.I. Parade became essential to fix the identity of Nantu as the person accompanied by Munmun and in absence thereof we are not inclined to accept that Nantu accompanied Munmun to Kunal's office either on 31.5.2000 or on 1.6.2000 except that Munmun had been to his office as admitted by her in her examination under section 313 CrPC. We are also not inclined to put any reliance on the evidence of PW/17 that it was Nantu who accompanied Munmun, on his identification of Nantu nearly 2 and ½ years after, in the dock for the first time when Nantu was not known to PW/17. We are also not inclined to put any reliance on the evidence of PW/17 that Munmun had been to Kunal's office to search his office drawer to ascertain whether Kunal had any LIC Policy or not and whether a widow is eligible for a job in the place of her husband inasmuch as such facts was disclosed by PW/17 for the first time in court 2 and ½ years after the alleged incident. As a result, we while accept the prosecution case that Munmun visited the office of Kunal either on May 31, 2000 or on June 1, 2000, but for the reason as aforesaid, we are not inclined to accept the case of the prosecution that it was Nantu who accompanied Munmun to Kunal's office and for ascertaining Kunal had any LIC Policy or not or a widow is eligible for a job in place of her husband.
12. The next circumstance prosecution relied upon against the appellant the strained relationship that developed between deceased Kunal and appellant Munmun due to her intimacy with Nantu. In this regard prosecution examined PW/10 Anuradha Bose, the mother of the deceased Kunal, their maid servant PW/15 Puspa Rani Halder and PW/16 Mira Bose, sister-in-law of PW/10. So far as PW/16 Mira Bose is concerned, we are not going to rely on her evidence on this score for the reasons, admittedly, she had not spoken to the police about such facts when was examined during investigation. So far as PW/10 is concerned according to her, her daughter-in-law introduced Nantu with Kunal and thereafter Kunal used to visit their house quite frequently and stayed till late night and even during the absence of her son Kunal. They used to chat and gossip closely and when her son protested to that, Munmun picked up quarrel with him. Similarly, PW/15 the maid servant in her evidence deposed that over the visit of Nantu there was frequent quarrel between Kunal and Munmun. Both these witnesses were cross-examined at length, but nothing was transpired therefrom for which they may be doubted on this score and this circumstance, thus, stands proved.
13. We now propose to deal with the circumstance relating to the extra judicial confession of the appellant Munmun, in support whereof the prosecution relied on the evidence of PW/10 Anuradha Bose, PW/13 Ketan Sengupta and to some extent PW/15 Puspa Rani Halder.
According to PW/10, on June 3, 2000 and on June 4, 2000 she came to learn from the daily news paper Ananda Bazar and Telegraph and from T.V. news telecast in Door Darshan about the illicit relationship between Munmun and Nantu and Munmun committed murder of her husband in connivance with appellant Nantu and Gautam. When PW/10 and her other relations charged Munmun as to how she killed her husband without thinking the future of their two children she did not reply and kept silent. Again on June 4, 2000 at about 1 p.m. the witness asked Munmun as to why she killed her husband to which she replied she committed the offence to live with Nantu and by catching hold her legs she prayed for mercy. At that time PW/13 Ketan Sengupta, a friend of her son deceased Kunal was present there and their maid PW/15 Puspa Rani Halder was cleaning the floor of the adjacent room. On the same day during late evening police came to arrest Munmun when PW/10 asked the police to wait and she went upstairs, where Munmun prayed police be asked not to arrest her, because she committed the offence under emotion to live with Nantu. It is also her evidence at that time when Munmun was praying for mercy catching hold of her two legs she also stated that on May 26, 2000 Nantu informed her that he and Gautam committed murder of Kunal and for that they used a sharp cutting weapon bhojali. The PW/10 in her cross- examination also disclosed that Munmun prayed for mercy after admitting her guilt for the first time on June 4, 2000 and not before that.
During her cross-examination the evidence of the PW/10 as to the extra judicial confession of Munmun was confronted with reference to her statement recorded under section 161 CrPC. The PW/10 Anuradha Bose however asserted that on June 4, 2000 she disclosed to the police that Munmun told her that Nantu informed her on May 26, 2000 that he and Gautam committed murder of Kunal by sharp cutting weapon bhojali and on the same day, at about 8 p.m. in the evening when police came again to their house, she disclosed such facts to the police.
However, when the PW/41 Biswanath Halder, the investigating officer of the case was cross-examined on this point, it transpires from his evidence that on 4.6.2000 at around 4.15 p.m he went to the residence of PW/10 Anuradha Bose, recorded her statement and intimated her that he wanted to arrest her daughter-in-law and then arrested appellant Aparajita Bose @ Munmun. The PW/41 further disclosed on that day on his second visit to the house of PW/10, at 8 p.m. she did not make any statement and her statement was recorded before the arrest of Munmun and no other statement thereafter. The PW/41 then admitted that PW/10 did not state to him that Munmun made a confessional statement to her and on 4.6.2000 at 8 p.m. again when he came to the house of PW/10 Anuradha Bose, she did not make any statement to the effect that Munmun fell at her feet and told her that on 26.5.2000 Nantu informed her that he committed murder of Kunal with the help of Gautam with bhojali.
Now, taking together the evidence-in-chief of the PW/10 Anuradha Bose and what she asserted during her cross- examination and the evidence of PW/41 Biswanath Halder, the investigating officer of the case, we find that PW/10 Anuradha Bose in her statement recorded under section 161 CrPC never disclosed to the investigating officer anything about the extra judicial confession made to her by the appellant Munmun. Undoubtedly, the failure of the PW/10 Anuradha Bose to disclose to the police about making of an extra judicial confession admitting her guilt by Munmun, when she was examined by the police before the arrest of Munmun, is a very vital and material omission touching the credibility of the factum of such alleged extra judicial confession, therefore this circumstance of extra judicial confession ought to be excluded from consideration against both the appellants Munmun and Kunal. This circumstance does not stand proved.
14. Although we have already excluded from our consideration the circumstance of extra judicial confession of Munmun against the appellants, finding the same not safe to be relied upon, still we propose to examine whether what she allegedly stated to the PW/10 Anuradha Bose amounts to confession.
A confession means an express acknowledged guilt of the offence charged, certain and complete in itself, or it must admit substantially all the facts which constitute the offence. To distinguish a confession from an admission one test would be whether the statement confessing guilt is alone sufficient to convict the person charged with the commission of the offence, if it is, it is a confession. If however, it falls short of a plenary acknowledgment of a guilt but the statement is of some incriminating fact or facts which taking alone with other evidence tend to prove his guilt, it is an admission. In other words, an admission in terms the offence or at any rate substantially all the facts which constitute the offence, a statement, either oral or written, whether communicated or not, admitting guilt is a confession. Reference may be made to the decision of the Hon'ble Apex Court in the case of Palvinder Kaur Versus State of Punjab reported in AIR 1952 SC 354 and Om Prakash Versus State of U.P. reported in AIR 1976 SC 1167. An admission of an incriminating fact is not by itself a confession and all admissions are not confession. In a case an accused is charged with murder, has stated that he had assaulted by mistake. Certainly, this is an incriminating fact, but not admission of guilt in terms, therefore, it is not a confession. Every confession must necessarily be an admission, but every admission does not necessarily amount to a confession. In this regard reliance may be placed in the case of State Versus Rajinder reported in (1996) 8 SCC 77 and in the case of State Versus Navjot Sandhu reported in (2005) 11 SCC 600.
In this case according to the prosecution by the following statements the appellant Munmun confessed her guilt before the PW/10.
(i) On hearing this myself and other relations of mine charged Munmun how did she commit such heinous act of committing murder of her husband without thinking for a moment regarding her children. In reply she did not say anything but kept silent.
(ii) On 4th June, 2000 at about 1 p.m. I asked Munmun as to why did she commit such ghastly murder against none but her husband? To which she replied that she committed this offence to live with Nantu away from her husband and she caught hold my legs and prayed for my mercy for that.
(iii) While police was in my drawing room to arrest Munmun and Munmun was praying for mercy, catching hold of my two legs and said that Nantu informed Munmun on 26th of May, 2000 that Nantu and Gautam committed murder of Kunal and they completed such work by sharp cutting bhojali and they completed their job.
We find when Munmun was first charged by PW/10 for committing murder of her husband, she remained silent, therefore there was no confession.
It is settled legal position, acceptance of confession pre- supposes that confession must be voluntary and free from any threat, inducement or promise and true. Now, in the light of the legal position as aforesaid, next two confessions was made by Munmun, when she was charged by PW/10 Anuradha Bose and when police came to their residence to arrest her, cannot be accepted to be voluntary one and not under threat. Therefore, for these reasons also the extra judicial confession of Munmun ought to be kept beyond the zone of consideration.
15. Now, coming to the question what have been telecast in Door Darshan regarding the incident of murder of Kunal in the programme Khas Khabor, we find the prosecution examined PW/22, PW/25 and PW/37 by displaying in court the C.D. of the news which was telecast on June 3, 2000, June 4, 2000 and June 5, 2000.
(a) During the examination of the appellant Munmun, a question was put to her that in Khas Khabor, a news was telecast on 5.6.2000 and in the said news her recorded statement before the camera was displayed in which she stated that she wanted a plain and simple divorce, but Nantu Da has committed this murder.
In reply to that appellant Munmu stated that she was compelled to make such statement after severe mental torture inflicted upon her by the police and at that time she was in police custody.
Now having regard to the fact such statement was made by Munmun before the T.V. camera when she was in police custody, same is completely inadmissible in evidence, furthermore, in her such statement she never admitted her guilt.
(b) When the appellant Nantu was examined under section 313 CrPC, a question was put to him that he stated before the T.V. camera that he knew Kunal was murdered but how could he tell who had done this. During trial the news telecast in Door Darshan on 3.6.2000 was displayed in the court room and shown to the PW/25 the cameraman of that T.V. channel who identified the person made such statement resembled to appellant Nantu and that man at that time was escorted by two police personnel. Since such statement was made by the accused while in police custody ought to have been excluded from consideration. Moreover, what have been stated by Nantu before the T.V. Camera does not amount to any admission far less a confession.
(c) Besides above, the statement of the PW/41 Biswanath Halder, the investigating officer of the case, made before the T.V. camera, was displayed during the trial. In his statement the investigating officer stated "it is clear case of murder. Medical report will prove that. It will be more clear after we will get the post mortem report. Police is connecting the wife of Kunal Bose." .. "Kunal's wife has admitted that she had physical relation with Nantu and also with his driver."
This statement of the investigating officer of the case, i.e. information he collected during investigation is not admissible in evidence in a criminal trial. No part of such evidence was also put the appellants during their examination under section 313 CrPC.
(d) The PW/25 the cameraman who videographed all the aforesaid news items telecast in Door Darshan on June 3, 2000, June 4, 2000 and June 5,2000 was recalled by the defence for further cross- examination. During such cross-examination it transpires that all the aforesaid statement before the T.V. camera was recorded in presence of a person whose appearance resembles with the appearance of the investigating officer of the case, who was then brought inside the court room. This is another reason for which we discard whatever has been transpired from telecasting. Nothing incriminating has been proved against the appellants on the aforesaid circumstance, except that whatever appellants stated before T.V. camera, was stated while they were in police custody.
16. During the investigation the police seized the ambassador car with foot-mat admittedly owned by the appellant Nantu from the garage of PW/31 Bikash Chandra Saha. The factum of seizure was not disputed from the side of the appellants. It is also the case of the prosecution that PW/33 Dr. (Smt.) S. Chakraborty, Asstt. Serologist and Chemical examiner, Institute of Serology found the foot-mat was stained with human blood. It was also the report of forensic expert PW/33 that blood group found in the foot-mat matched with the blood group of the blood which was preserved from the body of the deceased during post mortem, which were group-B. Accordingly, the trial court came to the conclusion that Kunal was first assaulted inside the car of Nantu and multiple injuries were caused to him and then was thrown out at the spot, wherefrom he was rescued in an injured condition. However, during the examination of appellant Nantu under section 313 CrPC, no question was put to him as regards the same. Therefore, no question arises to act on that circumstance against the appellant.
17. The next circumstance is recovery of the offending weapon bhojali at the behest of the appellant Nantu. According to the investigating officer of the case PW/41 Biswanath Halder on 7.6.2000 he took Nantu to the spot where the injured was found for verification of his statement made to the police. Where from a bhutta field Nantu brought out a bhojali in presence of the witness PW/1 Dipu Halder and PW/3 Sujit Mondal. During the trial both PW/1 and PW/3 were declared hostile. Although they admitted their signatures in the seizure list, but denied the factum of recovery of bhojali at the behest of the appellant Nantu. Going through the seizure list Ext.-4, we find same contained also the signature of the appellant Nantu. In this case no recorded statement of Nantu was exhibited during the trial following which he led to recovery of the offending weapon and therefore the learned counsel for the appellant vehemently urged in such a situation and when the seizure witness did not support the prosecution case, the factum of recovery has to be excluded from consideration. Even when the factum of seizure is not admissible under section 27 of the Evidence Act, still it is relevant under section 8 as conduct of the accused. In this regard reliance may be placed in the case of A N Venkatesh Versus State reported in (2005) 7 SCC 714. In the case of S.C. Bahri Versus State of Bihar reported in 1994 CrLJ 3271 (SC), the Apex Court in a case where disclosure statement of the accused was not recorded nor any independent public witness was examined, still accepted the discovery evidence.
In this connection, in our opinion it would be more apposite to refer one of the observations made by the Hon'ble Apex Court in the case of State of Maharashtra Versus Suresh reported in (2000) 1 SCC 471, which is quoted below:
"Three possibilities are there when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal Court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal Court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal Court that the concealment was made by him........."
18. The only other circumstance the prosecution relied against the appellant Nantu is this that on June 2, 2000 he had been to Parama Investigation Centre in search of missing Kunal, at that time he was shown the photographs of Kunal and his belongings, but he denied that those were of deceased Kunal and he misled the police by giving wrong description of Kunal.
To establish the said circumstance the prosecution examined PW/11 Arun Malakar, PW/12 Anup Mondal and the investigating officer of the case PW/41 Biswanath Halder. According to the PW/41 on 2.6.2000 at about 9.25 p.m. while he was sitting at Parama I.C., a person entered the I.C. and told him that he was searching for his friend during last 6/7 days and asked whether he could help him in this regard. The witness told him that on 26.5.2000 we found one person near Khanaberia. Accordingly we showed some articles which were collected from that person, which were one key-ring with keys along with inscription of a name Kunal, one comb, one wrist watch, one black Regent cigarette packet and he was also told that the said man was healthy. The said man when told the witness that his friend did not possess a good health. The witness again told him that said man had two sons and the said person told him that his friend had only one daughter and those articles did not belong to his friend. The witness then identified Nantu as the said person and told that his name was Kalyan.
Prosecution tried to corroborate the evidence of PW/41 by the evidence PW/11 Arun Malakar who at that time came to the Investigation Centre to serve tea to the PW/41 and PW/12 Anup Mondal who at that time was cleaning the floor of the Investigation Centre. Both PW/11 and PW/12 identified Nantu as the said person who on that day visited Parama I.C. and met the PW/41 and further deposed the said person disclosed his name as Kalyan.
On behalf of the appellant Nantu it was vehemently urged that the evidence of both PW/11 and PW/12 ought to be rejected for the simple reason that although Kunal was not known to them, but no T.I. Parade was held to fix his identity as the person who visited the Parama Investigation Centre at that relevant time. We find non-holding of T.I. Parade is of no consequence inasmuch as while according to the PW/11 sometime after he found that PW/41 was bringing the said person to the Investigation Centre, similarly according to the PW/12, after about 2/3 hours Nantu again came to the Investigation Centre and was arrested. We find both the witnesses were examined at length but nothing could be brought out which may discredit their credibility.
We find the prosecution by examining PW/11 and PW/12 and PW/41 has able to establish that Nantu on June 2, 2000 visited Parama Investigation Centre in search of Kunal and he tried to mislead the police that the person who was found lying injured at Khanaberia was not his friend Kunal.
19. This is a case entirely based on circumstantial evidence, therefore, the prosecution is, not only obliged to prove beyond all reasonable doubt each piece of circumstance against the accused persons, but at the same time circumstances so proved must form a complete chain and those circumstances in their totality shall unerringly lead to the conclusion that offence was committed by the accused persons and none else. In other words, the circumstances forming the chain must be free from any conclusion that may be consistent with the innocence of the accused and must be of conclusive character and consistent only with the hypothesis of guilt of the accuseds and should not be capable of being explained by any other hypothesis.
20. In the case at hand undoubtedly two circumstances that the victim suffered a homicidal death due to the ante mortem injuries found in his person and he was Kunal Bose, the son of PW/10 Anuradha Bose has been established beyond all reasonable doubt.
So far as the other circumstances are concerned prosecution relied on circumstance 'c', 'f', 'g', 'h', 'i' against both the appellants and the circumstance 'e', against the appellant Munmun @ Aparajita Bose and the remaining circumstances viz., 'd', 'j', 'k' and 'l' against the appellant Nantu Roy @ Kalyan Roy.
21. The circumstance 'c' i.e. the dying declaration of the victim while has been proved against the appellant Kalyan Roy @ Nantu Roy, but it cannot be said that the same has been proved beyond all reasonable doubt against the appellant Munmun @ Aparajita Bose and therefore, same has to be kept out of the zone of consideration so far as she is concerned. We also find that prosecution has been able to prove the circumstance 'd' that the victim Kunal before leaving his house on the date of occurrence in the evening informed his mother that he was going to meet appellant Nantu at Gariahat and thereafter he never returned home alive and on the same day he was rescued by the police in an injured condition from Khanaberia situated at E.M. byepass and when brought to the hospital declared dead, on such proof this circumstance clearly goes against appellant Nantu. The circumstance 'e' that Munmun left her matrimonial home some days before missing of Kunal and returned after about five days from the date of his missing although she had the information that Kunal was missing, has not been proved. The circumstance 'f' that Munmun visited the office of Kunal before he was traced out to collect information whether Kunal had any LIC Policy and whether a widow would be eligible for a job in place of her husband being accompanied by appellant Nantu, we find although prosecution has been able to prove the factum of her visit the office of Kunal, but it has not been proved on that occasion he was accompanied by the appellant Nantu. Thus, while the said circumstance has been proved against the appellant Munmun only with regards to the fact that she visited the office of Kunal either on May 31, 2000 or on June 1, 2000, but it is not proved either against her or against Nantu on that day she was accompanied by Nantu and the same cannot be said to be an incriminating circumstance against her. The circumstance 'g' that the relation with deceased Kunal and the appellant Munmun got strained due to her intimacy with the appellant Nantu has been established from the evidence of PW/10 Anuradha Bose and PW/15 Pusparani Halder. The circumstance 'h' the extra judicial confession of appellant Munmun @ Aparajita Bose has neither been proved either against her or against the appellant Nantu, similar is the position so far that relates circumstance 'i' as regards to telecast in Door Darshan about the incident of murder of Kunal, such circumstance has not been proved against either of the appellant. So far as the circumstance 'j' the seizure of blood stained foot-mat from the ambassador car of Nantu and in chemical analysis same was found to be stained with human blood and the blood-group matched with the blood preserved from the body of the deceased ought to be excluded from consideration because such fact was not put to appellant Nantu during his examination under section 313 CrPC. The next circumstance 'l' that when appellant Nantu visited Parama Investigation Centre, he was shown the belongings of Nantu and the investigating officer also made some enquiry from him about Nantu, he misled the investigating officer also stands proved.
22. Now, taking into account the proved circumstances against the appellant Nantu, we find same are as follows:
i) In his dying declaration made before the PW/6, PW/7, PW/8 and PW/9 Kunal disclosed that he was assaulted by Nantu and Gautam and the same is resulted in his death.
ii) On the date of incident at around 6 p.m. while Kunal leaving his home told his mother he was going to meet Nantu at Gariahat crossing and thereafter he was never returned home alive and was rescued from Khanaberia in an injured condition a place situated at E.M. bypass.
iii) The relation between Kunal and Munmun got strained due to her intimacy with Nantu who used to visit their house regularly.
iv) Accused Nantu on June 2, 2000 when visited the Parama Investigation Centre and met the PW/41 investigating officer of the case, he tried to mislead him.
Now, together with the aforesaid proved circumstances, when we take into consideration the circumstance 'k' the recovery of the offending weapon at the behest of appellant Nantu, we find, not only the chain of circumstances is complete, but the totality of circumstances lead to the conclusion that the offence was committed by Nantu. Therefore, his conviction is fully justified and the same is sustained. So far as the sentence of imprisonment for life for the offence punishable under section 302 IPC is concerned, same is also sustained.
Coming to the case of appellant Munmun, we find the only circumstance that has been proved beyond doubt against her is the circumstance 'g' i.e. her relation with deceased got strained due to her intimacy with the appellant Nantu. Since proof of this circumstance alone cannot lead us to a conclusion that she was guilty of entering into a conspiracy with appellant Nantu to kill her husband, her conviction stands set aside.
23. In the result while the C.R.A. No. 525 of 2003 where the appellant is Aparajita Bose @ Munmun is allowed and her conviction and sentence is set aside, the C.R.A. No. 522 of 2003 where the appellant is Nantu Roy @ Kalyan Roy is concerned, same is dismissed.
The appellant Aparajita Bose @ Munmun who is now on bail at once be discharged from the bail bond and be set at liberty. The bail bond of the appellant Nantu Roy @ Kalyan Roy stands cancelled, he is directed to surrender to serve out the sentence imposed upon him. If not the appellant Nantu Roy surrenders within two weeks from this date, the trial court is directed to take steps for his apprehension.
Department is directed to send down the LCR with this judgment to the trial court at once.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties at once.
(Ashim Kumar Roy, J.) I agree, (Subal Baidya, J.)