Calcutta High Court (Appellete Side)
Bhajan Biswas & Anr vs S T A T E on 13 July, 2011
Author: J. N. Patel
Bench: J. N. Patel
In the High Court at Calcutta
Criminal Appellate Jurisdiction
CRA No. 201 of 1998
In the matter of:- Bhajan Biswas & Anr. appellants
-vs-
S t a t e Respondent.
Mr. Sekhar Kumar Basu,
Mr. Kallol Mondal,
Mr. Siladitya Banerjee,
Mr. Abhijit Ganguly for the appellants
Mr. Debasish Roy, Ld. P.P.,
Mr. Sanjoy Banerjee for the State
Heard on:- 12.07.2011
Judgement on:- 13.07.2011
J. N. Patel, C.J.
Heard the learned Counsel for the parties.
This appeal is directed against the judgement and order dated 29th June, 1998 passed by the Learned Additional Sessions Judge, Nadia in S.T. No. III of January, 1988 which relates to the conviction of the appellants-accused for having committed offence punishable under Sections 376(2)(g)/302 read with Section 34 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for life and a fine of Rs. 5,000/- each, in default to suffer, R.I. for two years, on account of having committed murder and R.I. for ten years and a fine of Rs. 2,000/-, in default, to suffer R.I. for one year for the offence of gang rape. The trial court was pleased to acquit the other co-accused in this case for want of evidence.
The appellants, along with five others, came to be prosecuted on a charge that on 12th July, 1994, between 9/9.30 a.m. to 11 a.m. in village Nazirpur under P.S. Ranaghat, appellants/accused in furtherance of their common intention murdered Ila Roy after committing gang rape on her.
The prosecution case is that Ila Roy, daughter of Gopendra Krishna Roy (PW-9), and Protiva Roy (PW-7) had gone to take tution in the house of Nakul Biswas (PW-13) and she did not return, so they started searching for her. Sushil Kumar Modak (P.W. 4), who is relative of Ila Roy, i.e. uncle of minor girl, has gone to graze his cow which was let off for grazing near the land of one Shymal Biswas and noticed that the appellants accused Bhajan Biswas and Nakul Halder were coming from ail of Shymal Biswas and Radha Ballav Biswas and, therefore, he expressed his suspicion that Bhajan Biswas and Nakul Halder and others must be the persons, who have committed murder of her niece, Ila Roy, whose body was found lying in the awl of Shymal Biswas and Radha Ballav's land in half naked condition with injuries on throat and blood in the mouth. The murder was reported to the police. The police arrived at the place of occurrence and on arrival of the police, a report was handed over by Mihir Kumar Roy (PW-
1), brother of the deceased, addressed to the Officer-in-Charge of Birnagar P.S., District Nadia, (FIR Exhibit-1) that his younger sister Kumari Ila Roy, aged about 18 years, had gone out for studies at the teacher's house at Birnagar. She usually returned home at about 9.30 a.m. but she did not return till 11 a.m. The complainant went out for search in different places and during noon time about 1 p.m., they found her lying dead on the awl of jute field of Nazirpur village with bleeding injury. The police immediately prepared inquest report and on the basis of suspicion expressed by Sushil Kumar Modak (P.W. 4 ) instructed them to keep an eye over the appellants-accused. On the next day the appellants-accused came to be arrested and pursuant to the statement made by the appellant-accused, a kashta, material exhibit-6, came to be discovered. The police, after completing the investigation, filed charge sheet against the appellants-accused.
The appellant-accused, along with three others, were prosecuted for having committed gang rape and murder of Ila Roy. In reply to the charge, they pleaded not guilty and claim to be tried.
In support of their case prosecution examined in all fourteen witnesses. On conclusion of the trial, the court found that the prosecution had established the charge against the appellants-accused, Bhajan Biswas and Nakul Halder, and found them guilty for having committed offence under Sections 376(2)(g)/302 read with Section 34 of the Indian Penal Code but acquitted Sahadeb Pramanick, Jagannath Mondal and Ganesh Modak for want of evidence.
It is contended by the learned Counsel appearing for the appellants- accused, that this is a case of no evidence against the appellants-accused, who have been mainly convicted and sentenced on the basis of suspicion. It is further contended that the medical examination of the victim, Ila Roy, which was performed by the doctor Pralay Kumar Bhattacharjee, (P.W. 12), nothing could be concluded as to whether the victim was raped before her death and was to be confirmed from the report of FSL which was not obtained by the prosecution, as no sample of wearing apparels or any nature of the deceased was forwarded to the Forensic Science Laboratory. It is further submitted that the alleged discovery of the weapon of murder kashta (material exhibit-6) does not establish anything against the appellants-accused, as the prosecution has failed to prove that the said kashta (material exhibit-6) was the weapon used of assaulting victim. It was never sent to the medical officer after it was alleged to have been discovered nor was it sent to the FSL. It is submitted that the only circumstance on which the prosecution placed heavy reliance and unfortunately believed by the trial court was the fact that at some point of time P.W.4, Sushil Kumar Modak, had seen the appellants-accused near the place of occurrence. The fact that they had come to the father of the victim for negotiating about the price of flower plant and they told him that they would come later and then proceeded towards the land having jute plant which is seldom used by persons of the village and normally, while returning from tution, the victim would come through that place and, therefore, no case has been made out against the appellants-accused.
The Learned Public Prosecutor on the other hand made a viable attempt to support the judgement and order of the trial court and submitted that the possibility of the appellants-accused having rapped the victim and committed murder cannot be ruled out and the appellants-accused have failed to offer any explanation for their presence near the place of occurrence and discovery of kastha i.e., the evidence led by the prosecution which would show they are innocent.
We have gone through the evidence of witnesses and the impugned judgement and order passed by the trial court. We have no hesitation to arrive at a conclusion that the prosecution has miserably failed to prove the case against the appellants-accused. The fact that the victim died homicidal death is not at all in dispute. Doctor Pralay Kumar Bhattacharjee (P.W. 12), who was at the relevant time attached to Ranaghat S.D. Hospital, had conducted the autopsy of the dead body of Ila Roy and found the following injuries:-
(1) Cut injury below thyroid cartilage measuring 3"
X ½" crachea cut open anteriorly.
( 2) Common carotid vessels with profuse excravasacion of blood on left side.
(3) Valval haematona, hymen was formed, Utras non-gravid.
After P.M. dead body & wearing apparel were handed over to the Police. Viginal Swab, Pubic hairs preserved, labeled, sealed & sent to F.S.L. for chemical examination via escort.
Opinion - Death was due to affects of abovementioned injuries which were antemortem & homicidal in nature.
From the injuries of her private parts, it appears that she was raped before her death to be confirmed by Report of F.S.L. I wrote this P.M. report in Carbon process & it is my signature & it is Ext. 5."
The witness was shown the kashta material Exhibit-6 and opined that injury number-1 may be caused by the said exhibit material-6 and injury number-3 noted in Post Mortem column 11 may be caused during rape. The Doctor has in cross- examination stated that the materials Ext. 6 is a kashta and it has got ridged edge and if the injury is caused by ridged instrument the margin will be ridged according to the capacity. He has also stated that there is no mention in his report that the hymen injury is recent or old.
As pointed out to us by the learned Counsel appearing for the appellants- accused, the medical officer was not sure and failed to give any definite opinion on examination of the injuries on the private parts of the victim that whether she was raped before her death as no report of FSL had seen the light of the day. Therefore, the medical evidence led by the prosecution, that the victim was done to death due to injuries found on her body can safely be accepted but cannot be conclusive as to the fact that she was raped before her death and there is no other evidence on record to show that the victim was raped before she was murdered.
The next and most important point which arise for our determination is whether the prosecution has proved that the appellants-accused have committed gang rape and then murdered Ila Roy. The only two circumstances placed on record by the prosecution to show that the appellants-accused are guilty of having committed gang rape and murder of the victim, are that they were seen near the place of occurrence during the time the victim had not reached home from tution and till her dead body was found i.e., between the time 09.30 hrs. - 11.00 hrs. and the next is that the hasua, material Ext. 6 came to be recovered at their instance.
In order to establish the first instance, the prosecution, mainly relies on the evidence on Sushil Kumar Modak (P.W. 4), who claimed to have seen Bhajan Biswas and Nakul Halder, appellants-accused coming from awl of Shymal Biswas and Radhaballav Biswas and they were going to the Banana groves of Shambhu Biswas and this witness has expressed his suspicion that it is the appellants- accused who had committed murder because he thought that no person generally go towards the awl of Shymal Biswas and Radhaballav Biswas but Bhajan Biswas and Nakul Halder came from that side of the land which created suspicion and so he went towards the ail of Shymal Biswas and Radhavallav Biswas and there saw Ila Roy lying in the awl of Shymal & Radhavallav"s land in half naked condition with injuries on her throat and blood in the mouth. He went and informed Gopendra Krishna Roy( P.W. 9),the father of the deceased.
In so far this witness is concerned, not only he expressed his suspicion about the complicity of Bhajan Biswas and Nakul Halder but also three other persons, i.e. the co-accused. This by itself does not lead the prosecution case anyway near the miscreants, more particularly, the appellants-accused. The other evidence as regards the discovery of khasta, material Ext. 6 is concerned, according to the Investigating Officer, on his arresting the appellants-accused and others, he recorded their statements and Bhajan Biswas and others stated to him and disclosed that he kept concealed the weapon of the offence in a place where he can lead and recover it and he also came to know that all the accused persons had knowledge about the concealment of the weapon and that the weapon of offence, i.e. khasta, material Ext. 6 came to be discovered as per leading statement of Bhajan Biswas along with others. The independent witness to the search and seizure have been declared hostile, according to him he had signed the seizure list, Ext. 4 at 1-30 p.m. in Taharpur out post at the instance of uncle of Ila Roy and Investigating Officer, who told him to put his signature on Ext. 4, which is marked as Ext. 4-2, Gour Biswas (P.W. 11). The Investigating Officer has not done nothing, further like sending the alleged weapon of assault discovered at the instance of the appellants-accused to the Forensic Science Laboratory for analysis.
Except for the aforesaid two circumstances, there is no evidence placed on record to show that the appellants-accused have raped and committed murder of Ila Roy. The rest of the evidence relates to the fact that on the fateful day, Ila Roy had gone for tution at the place of her teacher, Nakul Biswas (P.W. 13) and she left her place at 10.15 a.m. along with her friends, Champa Biswas (P.W.
8) and Indra Narayan Roy (P.W. 5) confirm that Ila Roy had come for tution and parted accompany from them at the railway station and Ila Roy proceeded to her house.
We have already observed that the two circumstances which are placed in service to prove the guilt of the appellants-accused do not take the prosecution case anywhere and, therefore, the prosecution has miserably failed to prove the case against the appellants-accused. We, therefore, find that the appellants- accused are not guilty for having committed offence under Sections 302/376(2)(g) read with Section 34 of the Indian Penal Code. They are acquitted of the said charges and their conviction and sentence is set aside.
The appellant-accused, Bhajan Biswas be set at liberty if not required in any other case. The bail bonds of appellant no. 2, Nakul Halder, who is on bail, stands cancelled.
The appeal is allowed.
(J. N. Patel, C.J.) I agree.
(Ashim Kumar Roy, J.) 9