Calcutta High Court (Appellete Side)
Sk. Kasem Halder vs Unknown on 28 April, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 11 d.
C.R.R. 210 of 2005 In the matter of : Sk. Kasem Halder .......petitioner.
Mr. Tapas Ghosh Mr. Tanmoy Chowdhury .......for the O. P. Nos. 2 to 4.
Mr. Kabita Mukherjee .......for the State.
None appears on repeated calls on behalf of the petitioner. However, Mr. Tapas Ghosh, learned advocate appearing on behalf of the opposite party nos. 2 to 4 is present in court today. Mrs. Kabita Mukherjee, learned advocate learned advocate appearing for the opposite party no. 1, State is also present.
The challenge in this revisional application is to the judgement and order dated 28-09-2004 passed by the Ld. Additional Sessions Judge, 2nd Fast Track Court, Hooghly in Sessions Case No. 262 of 2002 renumbered as Sessions Trial No. 22/03 whereby acquitting the opposite party nos. 1 to 4 from the charge under Section 302/201/120B of the Indian Penal Code.
2Sk. Kasem Halder was lodger of the F. I. R. His brother Sk. Hasem Halder was murdered. In the F. I. R lodged by Sk. Kasem Halder, it was alleged that the marriage of Sk. Hasem Halder with Monija Khatun @ Tusi took place in the year 1998 and in their wedlock, one female child was born. Sk. Hasem had a business of supply of bricks, sand etc. He used to stay outside his house for the sake of his business. Sk. Ismile @ Tuntun, opposite party no. 1 was like his friend and used to visit the Sk. Hasem's house. Sk. Hasem and Sk. Ismile also used to go to different places together. Taking opportunity of that relation, Sk. Ismile picked up relation with Monija @ Tusi. The matrimonial relation between Sk. Hasem and Monija became strained. On 18-08-01, Sk. Hasem together with Sk. Ismile had been to Sk. Ruhul for the purpose of collecting money. They returned back home at 8 p. m. Sk. Hasem and Sk. Ismile were found talking to each other. Since 8.30 p. m., Sk. Hasem was found missing. A towel stained with blood, one short pant and one 'katari' were found by the side of the house inside a drain. Sk. Hasem Halder was not traced out. Sk. Kasem Halder lodged the F. I. R apprehending that Sk. Ismile together with Monija Khatun @ Tusi abducted Sk. Hasem Halder for the purpose of committing murder and that they also in order to disappear the evidence of murder, kept the dead body of Sk. Hasem Halder in a hideous place. On the basis of the said F. I. R, Polba P. S. 3 Case No. 75/01 under Section 364 I. P. C was started against Sk. Isamile and Monija Khatun @ Tusi. In course of investigation, some offending articles with stain of blood were recovered. The accused persons were arrested and on the basis of the statement leading to a discovery of opposite party no. 1, Sk. Ismile, the dead body of Sk. Hasem Halder was recovered from under a heap of ash. The opposite party no. 1 (Sk. Ismile) and opposite party no. 2( Monija Khatun) confessed their guilt also. The investigation of the case was ended in a charge-sheet against Sk. Ismile, Monija Khatoon, Moiram Bibi and Laltu @ Sk. Arshed under section 302/120B I. P. C. Since all the opposite parties as accused persons pleaded not guilty to the charges, the trial commenced. In course of trial, 19 witnesses were examined on behalf of the prosecution. Some documents were admitted into evidence and marked exhibit on behalf of the defence. The accused persons pleaded innocence in course of trial.
The ld. court upon consideration the evidence on record, oral and documentary, found the opposite parties not guilty to the charges and acquitted them.
Sk. Kasem Halder being aggrieved by and dissatisfied with the order of acquittal has filed this application for revision challenging the 4 legality, validity and propriety of the judgement mainly on the grounds that
a) that the learned court failed to appreciate the evidence in its proper perspective ;
b) the ld. trial court failed to appreciate the statement leading to the discovery ;
c) that the ld. trial court erred in not accepting the fact that the dead body recovered was the dead body of none but Sk. Hasem Halder ;
d) that the ld. trial court ought to have believed the confessional statement of the accused persons and recorded conviction of the opposite parties ;
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e) that the ld. trial court failed to follow the principle of "last seen together" ;
f) that the ld. trial court failed to collect the circumstances in order to come to a irresistible conclusion that none but the opposite parties murdered Sk. Hasem Halder in collusion with each other ;
g) that the judgement and order is liable to be set aside and an order of retrial be passed.
The point to be decided is whether the judgement impugned is sustainable law.
The charge against the opposite party nos. 1 to 4 was framed under Sections 302/201/120B I. P. C for committing murder of Sk. Hasem Halder and causing disappearance of evidence of murder in collusion/in conspiracy with each other. One dead body was allegedly has been recovered on the basis of the statement leading to discovery of the opposite party no. 1, Sk. Ismile @ Tuntun. The dead body was not identified and recognized by any of the closed relations of the deceased 6 even by the de facto complainant/petitioner Sk. Kasem Halder. It was presumed that it was the dead body of Sk. Hasem Halder.
This apart, what I find from the post mortem report (Ext. 21) is that the death of the Sk. Hasem Halder was due to hemorrhage and shock caused by the injuries caused on his body which was anti mortem in nature. The name of Sk. Hasem Halder has been mentioned in the Ext. 21. The doctor, who conducted the post mortem was examined as P. W. 17. In his cross-examination, he stated that no mark of identification has been mentioned in the post mortem report. It is mentioned in the Ext. 23 that the body placed before him for the post mortem examination was completely a de-composed body. P. W. 17 in his cross-examination stated also that the body was completely de composed and whether it was the dead body of Hindu or Muslim could not have been detected. The D.N.A test was not done for the purpose of identification of the body. Neither the said post mortem report shows nor the P. W. 17 stated that the death was homicidal or not. The post mortem report is not containing any note as to the identification mark of the deceased. It is not understood wherefrom the P. W. 17 got the name of Hasem Ali Halder and why he had written the name of the deceased as Hasem Ali Halder. Nowhere he has stated as P. W. 17 that anyone identified the dead body as the dead body of Sk. Hasem Halder. None of the witnesses has stated in court that they could identify the dead body 7 of Sk. Hasem Halder. Sk. Hasem Halder, according to the prosecution case was hit by a 'katari' and thereafter by hard and blunt substance to ensure his death by the appellants. Naturally, it is excepted that at the time of post mortem, the P. W. 17 could have detected some other injuries. But no injuries other than the injury on left lateral aspect of the neck and the fracture of mandible was detected.
The ld. trial court while appreciating the evidence on record has taken note of all the above facts in the page 12 of the judgment. The ld. trial discussed the matter elaborately. The ld. trial court also have taken into consideration the inquest report (Ext. 26) for coming to a right conclusion over the issue. The ld. trial court did not find itself satisfied with the manner in which the dead body has been accepted as the dead body of Sk. Hasem Halder.
The prosecution case before the ld. trial court was that the appellant no. 1 had relation with the wife of Sk. Hasem Halder. On the fateful night at about 8.30 p. m., the appellant no. 1 was found talking to Sk. Hasem Halder in his house and soon thereafter, Sk. Hasem Halder was found missing. It was the case of the prosecution that appellant no. 1 with the help of the appellant nos. 2, 3 & 4 committed murder of Sk. Hasem Halder and hid his dead body under the heap of ash by the side of the brick factory. The ld. trial court did not believe the 8 story the prosecution for obvious reason that none has come forward to establish that the appellant no. 1 had any illicit relation with appellant no. 2. The ld. trial court did not believe the story of the prosecution case. The witnesses stated clearly that the appellant no. 2 had been residing in her paternal house far off the place of occurrence at the relevant period of time. The ld. trial court did not find any evidence to establish that the appellant no. 2 came back to the house of her husband on the fateful night in order to commit the murder.
I have carefully gone through the entire evidence as well as the judgment passed by the ld. trial court and found no illegality, incorrectness and impropriety in the judgment and order.
In a case of murder "corpus delecti" is a must. It has two components ----- death as the result of and criminal agency of another as the means where there is direct proof of the one, the other may be established by circumstantial evidence. The dead body itself is not "corpus delecti" . The expression means that a crime has been committed that is to say, a man is dead and his death has been caused by crime. Conviction requires proof of "corpus delecti" and it has no reference to the corpse. Before seeking to proof that the accused is the author of the crime, it must be established that the crime charged has been committed. 9
The strongest principle of 'corpus delecti' in murder is the dead body of the victim or a vital part of the body which could be identified. In absence of any evidence, direct evidence may also come from the person, who saw the killing or murderer may confess to the crime. In absence of 'corpus delecti', there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and that the accused are persons who committed the murder. Offence of murder can be established even in absence of seizure or recovery of dead body.
In the instant case, a dead body was recovered, but it was not identified as the dead body of Sk. Hasem Ali Halder. There is no direct evidence of killing of Sk. Hasem Ali Halder by the appellants. The appellant no. 2 had been residing in her paternal house for a period of two months prior to the date of alleged incident. She was not found at the place of occurrence at the relevant date and time by any of the witnesses. The ld. court did not accept the 'last seen theory' as far as the appellant no. 1 is concerned. No witness has ever uttered the names of other two appellants. The dead body was non-recognizable due to complete decomposition. Although the post mortem report shows that the death of the person undergone post mortem was anti mortem in nature, but nowhere it has been mentioned in the post mortem report nor has stated by the P. W. 17 that it was a homicide. The P. W. 17, on the contrary, expressed his doubt as to whether it was homicidal case or not 10 because that kind of injury which he detected on the dead body might have been caused for any other reasons. In such a case, it is doubtful to accept that the death was homicidal despite the so called 'extra judicial confessions' of the appellants.
The ld. court has dealt with 'extra judicial confessions' of the appellants as well as the statement leading to the discovery of the dead body and offending weapons elaborately. I have also gone through that part of the oral and documentary, evidence. At the outset, I must say that the statement leading to the discovery of the dead body as well as the offending articles recorded under Section 161 Cr. P. C should not have admitted into evidence and marked exhibits. The statement of like nature should not have been recorded in the fashion it has been done. Be that as it may, the ld. trial court considered the documentary evidence as well in order to judge the entire case of the prosecution from each and every angle. Even then, the ld. court did not find itself satisfied with the prosecution case and failed to connect the loose ends in order to form a chain of circumstances leading to irresistible conclusion that none but the appellants committed the murder.
This Court is not supposed to usurp the jurisdiction of an appellant court while exercising its revisional jurisdiction especially in a case of acquittal and invoked by a private complainant. There is no scope 11 for re-appreciation of the evidence and reversal of the order. I have already stated that there is strong doubt in the prosecution as to the identity of the dead body. The involvement of the appellant nos. 2, 3 & 4 in the alleged crime can be ruled out straightway because there is no evidence either direct or circumstantial against them. As far as the case of the appellant no 1 is concerned, I find that there is serious discrepancies in the prosecution case in all respects. When there is no direct evidence on the alleged incident, the prosecution was supposed to establish and prove beyond doubt all the circumstances which together should lead to the irresistible conclusion that no one but the appellant no. 1 committed the murder. There are some circumstances made out by the prosecution which they failed to prove. Again, they failed to connect one circumstance with other circumstances and form a chain of circumstances leading to the irresistible conclusion about the commission of offence by the opposite parties. Therefore, I do not find any illegality, incorrectness and impropriety in the order passed by the ld. trial court.
It is settled principle of law that ordinary High Court should not interfere with the order of acquittal specially when invoked by a private complainant save and except in exceptional cases to prevent gross miscarriage of justice or to set right a patent wrong or error, in law and fact, which would otherwise cause irreparable injury. It has been viewed 12 strongly by the Hon'ble Apex Court that this revisional jurisdiction is not ordinarily be invoked merely because the ld. court has taken a wrong view or misappropriated the evidence.
I have already stated that there is no illegality, incorrectness or impropriety in the judgment under challenge.
The ld. trial court has neither overlooked any material evidence on record nor has given undue importance on immaterial or irrevalent issues while recording acquittal of the opposite parties.
That being the fact, this Court declines to exercise his revisional jurisdiction in order to set aside the judgment and order under challenge and direct for retrial/rehearing by the trial court. In the conspectus of the facts and circumstances above, the revisional application fails. The Judgment impugned is affirmed.
The revisional application is disposed of on merit. Criminal Section is directed to supply urgent photostat copy of this order, if applied for, be given to the parties with usual undertaking.
( Kanchan Chakraborty, J. ) 13