Calcutta High Court (Appellete Side)
Anita Banerjee @ Rita Banerjee vs The State Of West Bengal on 19 September, 2008
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Debiprasad Sengupta
And
The Hon'ble Justice Pranab Kumar Deb
C.R.A. No. 364 of 2001
With
C.R.A. No. 411 of 2001
ANITA BANERJEE @ RITA BANERJEE
Versus
THE STATE OF WEST BENGAL
With
SUMAN BANERJEE
Versus
THE STATE OF WEST BENGAL
For the Appellants : Mr. Partha Sarathi Bhattacharya,
Mr. Ranjit Kumar Sanyal,
For the State : Mr. Asimesh Goswami, P.P.,
Mr. K. J. Ahmed,
Mr. Kalyan Moitra,
Heard on : 25.3.08, 26.3.08, 1.4.08, 2.4.08, 4.4.08, 7.4.08 & 8.4.08
Judgement on : 19.09.2008
DEBIPRASAD SENGUPTA, J. :
The aforesaid two appeals were preferred against the judgment and order of conviction and sentence dated 27.07.2001 passed by the learned Additional Sessions Judge, Jangipur, Murshidabad in Sessions Case No. 16 of 2001 (Sessions Trial No. 7 of March, 2001) thereby convicting the accused appellants under Section 302 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life. They were also convicted under Section 201 IPC and were sentenced to suffer rigorous imprisonment for 7 years. Both the sentences were directed to run concurrently.
The prosecution case, in short, is as follows :
On the basis of an information lodged by one Mritunjoy Banerjee (P.W. 1), a case was registered with Sagardeghi Police Station and it was alleged in the said compliant that the elder brother of the informant namely, Indradeb Banerjee @ Biman Banerjee married one Anita @ Rita Banerjee and they used to live in a rented house of one Raj Kumar Bhakat. Rita Banerjee used to go to the house of the complainant's uncle Rabindranath Banerjee for watching TV. It was alleged that once Rita Banerjee went to watch TV in the house of Rabindranath Banerjee and when Biman Banerjee in search of his wife went to the house of Rabindranath Banerjee, he found his wife Rita Banerjee in a compromising position with the accused Suman Banerjee, son of Rabindranath Banerjee. Biman Banerjee (deceased) brought back his wife, Anita @ Rita Banerjee and after this incident the relation between the husband and wife became strained and Biman Banerjee shifted his residence to a rented house of one Ram Charan Bhakat. On 11.10.2000 at about 21.00 Hours the informant got an information that his brother, Indradeb Banerjee @ Biman Banerjee, was lying dead in a pool of blood with cut injuries on his throat.
The informant suspected that Anita Banerjee and Suman Banerjee committed the murder of his brother. Information was lodged with the police and the case was registered accordingly.
To prove its case, the prosecution examined as many as 21 witnesses and none was examined on behalf of the defence. From the trend of cross-examination and also from the examination of the accused under Section 313 Cr. P.C. it appears that the defence was denial of offence with a plea of innocence.
P.W. 1, Mritunjoy Banerjee, the brother of the deceased, was the informant. He stated in his evidence that about one and half months prior to the incident his elder brother's wife, Rita Banerjee went to the house of his uncle Rabindranath Banerjee to watch TV and his elder brother in search of his wife went to the house of his uncle and found accused Suman Banerjee and Rita Banerjee in a compromising position. P.W. 1 further stated that his elder brother (deceased) took her back and after this incident the relation between his elder brother and his wife became strained. His elder brother shifted his place of residence to the house of one Ram Charan Bhakat. This witness further stated that he saw his brother in a pool of blood with cut injuries on his throat. He also stated that his elder brother was murdered by his wife, Rita Banerjee, and Suman Banerjee.
P.W. 2 stated in chief that she went to the place of Biman Banerjee and found him dead with cut throat injuries.
P.W. 3 stated in his evidence that on 11.10.2000 he saw victim Indradeb Banerjee @ Biman Banerjee returning to his house at about 7.00 P.M. and he also saw accused Suman Banerjee entering into the house of Indradeb Banerjee before 8 P.M. He also saw Suman Banerjee coming out from the residence of Indradeb Banerjee after sometime. P.W. 3 further deposed that he learnt about the death of Biman Banerjee and rushed to the place of occurrence and found Biman Banerjee with cut throat injuries. He suspected that it was not a case of suicide but a planned murder and he further added that accused Suman Banerjee had an illicit relation with the wife of Biman Banerjee.
P.W. 4, Rathindra Nath Chowdhury, stated in his evidence that after receiving the news he went to the house of Ram Charan Bhakat and found Biman Banerjee lying dead with cut throat injuries. He was also a witness to the seizure in respect of blood stained mud, ordinary mud, blood stained 'banti' and a 'nora' (weapon of assault).
P.W. 5 stated that having received the information he went to the house of Ram Charan Bhakat and saw the deadbody of Biman Banerjee and a 'banti' and a 'nora' were lying by the side of the deadbody. This witness further stated that once Biman Banerjee cried before him by stating that his wife Rita Banerjee had an illicit relation with the son of his uncle, namely, Suman Banerjee.
P.W. 6 deposed in his evidence that on 11.10.2000 sometimes after 7.00 P.M. he saw Biman Banerjee (deceased) entering his house and after sometime he also saw his cousin Suman Banerjee entering into the said house and again about half an hour thereafter Suman came out of that house and proceeded towards Sibtala. P.W. 6 after receiving the information rushed to the place and saw Biman Banerjee lying dead and a 'banti' and a 'nora' were lying by the side of the deadbody. He further added that he learnt that Suman Banerjee had illicit connection with the wife of Biman Banerjee.
P.W. 7, Proloy Banerjee, is a neighbour, who also corroborated the evidence of P.Ws. 4 and 5.
P.W. 8, Dhananjoy Banerjee, brother of the deceased, also corroborated the evidence of P.Ws. 4, 5 and 7. This witness also signed the inquest report.
P.W. 9, Falguni Banerjee, stated in his evidence that on receipt of information he went to the house of Ram Charan Bhakat and found the deadbody of Biman Banerjee with cut throat injuries. He further deposed that his brother was physically handicapped and it was not a case of suicide. He further stated that both the accused persons namely, Suman Banerjee and Rita Banerjee, confessed their guilt in presence of the public and police. It was in his evidence that there was an illicit relation between Rita Banerjee and Suman Banerjee and he suspected that it was not a case of suicide, but murder. This witness also deposed that both Rita Banerjee and Suman Banerjee went to Dr. T. K. Naskar for examination and it was learnt that the lady was carrying at that point of time. P.W. 9 was also a witness to the seizure of steel spoon, steel bati, two pieces of nylon ropes, shirt, pant and radio, which were seized from the house of Badal Banerjee and also from the house of Ram Charan Bhakat.
P.W. 10 deposed that after receiving the news from Mritunjoy Banerjee (P.W.1) he rushed to the house of Ram Charan Bhakat where Biman Banerjee was a tenant. He saw the deadbody of Biman Banerjee with cut throat injuries. He further deposed that in presence of police and the villagers, who assembled there, both Suman Banerjee and Rita Banerjee confessed that they murdered Biman Banerjee in a planned way. He further stated that on the previous day i.e. on 10.10.2000 Rita Banerjee went to Dr. T. K. Naskar, who on examination found that she was pregnant and this was also stated by Rita Banerjee in presence of the persons, who assembled there. Both the accused persons, as it is deposed by P.W. 10, disclosed that they hatched up a plan to eliminate Biman Banerjee and for this purpose they collected some sleeping pills from the medical stores and around 7 P.M. on 11.10.2000, when Biman Banerjee returned from his place of work, his wife mixed sleeping pills with 'payes' and offered the same to Biman Banerjee in a steel 'bati' (container). After taking the said 'payes' victim, Biman Banerjee, became senseless. P.W. 10 further stated that the accused confessed that Suman Banerjee at that time brought two pieces of rope and Biman's leg was tied by one rope when the other was used in tying his neck. He further stated that Biman's wife pressed the mouth of Biman with a piece of cloth. Suman sat on the chest of Biman and his wife tied his throat with a rope. It was further stated that Biman fell down from the cot and his wife cut both sides of his throat with a 'bonti'. This witness gave a vivid description of the confessional statements made by the accused persons in presence of the persons, who assembled there. P.W. 10 was also a witness to the seizure of some articles from the place of occurrence.
P.W. 11, who is another brother of the deceased, also corroborated the evidence of P.Ws. 4, 5, 7, 8 and 9 in all vital aspects and he was also one of the witnesses before whom confessional statement was made by the accused persons.
P.W. 12, Ajit Pramanik, was also a post-occurrence witness and he was also a witness to the seizure of the wearing apparels of the accused persons.
P.W. 13 was Rabindranath Sinha and he was also one of the witnesses before whom confessional statement was made. He stated that police arrived and started interrogating the accused persons in the house of Badal Banerjee when the accused persons made their confessional statements before the witnesses, who assembled there. This witness gave a vivid description of the confession made by the accused persons before the villagers and in presence of the police.
P.W. 14 was a witness to the seizure of some papers showing the name of Dr. T. K. Naskar seized from the house of Ram Charan Bhakat as disclosed by the accused, Anita @ Rita Banerjee.
P.W. 15 is also a witness of the seizure of prescription of Dr. T. K. Naskar. P.W. 16 is the doctor, who examined Rita Banerjee and Suman Banerjee on 15.10.2000. He found a small blackish cut mark on the left index and middle fingers of Rita Banerjee. He also found injury on the right thumb of accused Suman Banerjee measuring about 1.5 cm in length with clean-cut margin.
P.W. 19 was the Judicial Magistrate, who recorded the statement of accused Suman Banerjee under Section 164 of the Code of Criminal Procedure on 17.10.2000.
P.W. 20 is the autopsy surgeon, who held post mortem over the deadbody of Biman Banerjee and found the following injuries :
1. A transverse cut wound 8 to 9 cm extending from 2 cm lateral to mid line upto posterior border of S.M. also involving ¾ th circumference of trachaea anteriorly (on right side).
2. Another transverse cut wound on the left side just above ¾th inch of the first injury - 7/8 cm in length involving S.M. and also involving external carotid artery.
3. A small cut injury 3 cm in length over left supra orbital region.
P.W. 20 also opined that the cause of death was due to the above injuries causing shock and haemorrhage, which is ante mortem in nature and homicidal.
P.W. 21 was the Investigating Officer of the case and on completion of investigation he submitted charge-sheet.
In the present case, there is no eyewitness to the incident of murder and the conviction is mainly based on circumstantial evidence as well as substantial evidence adduced by the prosecution witnesses. In the instant case, there is a judicial confession recorded by the Magistrate under Section 164 of the Code of Criminal Procedure. It is argued by the learned Advocate appearing for the appellants that the learned Trial Judge committed an error in relying upon such judicial confession, which was not recorded in accordance with law, but we are unable to accept such contention. We find that such confession of the accused was recorded by the learned Magistrate after observing all the formalities as required under Section 164 Cr.P.C. After the accused was produced before the Magistrate, he was kept in segregation for one day and on the following day his confession was recorded by the learned Magistrate. The accused person before making such confession was given due caution and he was told that he was not bound to make any confession and if he did so, it might be used against him. It was also made clear to him that if he refuses to make any confession, he would not be sent to police custody. It was also ascertained as to whether the accused was in a segregated place in jail and whether anybody created any pressure upon him. The learned Magistrate after being satisfied recorded the confession of the accused person. Such confessional statement was made exhibit and after going through such statement recorded under Section 164 Cr. P.C. we do not find any illegality in such judicial confession.
The learned Advocate of the appellants next argues on extra judicial confession made by the accused person before the witnesses namely, P.Ws. 9 to 13 and submits that the learned Trial Judge should not have relied upon such extra judicial confession in convicting the accused appellants. From the evidence on record we find that P.Ws. 9 to 13, who are the villagers, assembled at the place of occurrence and in presence of such witnesses, the accused persons confessed that they committed the murder. They gave a vivid description how the conspiracy was hatched up to eliminate the victim and how the murder was committed by them. It is true that some of those witnesses have said that when such confessional statement was made before the witnesses, police was present. It is the submission of the learned Advocate of the appellants that such confession made before the police can never be admissible in evidence and can never be relied upon in convicting the accused appellants. In support of his contention the learned Advocate relies upon a judgement of the Hon'ble Apex Court reported in 1997 SCC (Cri) 325 (State of AP Vs Gangula Satya Murthy). In the said judgment it was held by the Hon'ble Apex Court as follows :
"It is true any confession made to a police officer is inadmissible under Section 25 of the Act and that ban is further stretched through Section 26 to the confession made to any other person also if the confessor was then in police custody. Such custody need not necessarily be post-arrest custody. The word 'custody' used in Section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act."
We have gone through the said judgement, but we are of the view that the said judgment is not at all applicable in the present case as the facts and circumstances of the present case are quite different. From the evidence on record it appears that when such confessional statement was made before the villagers, the accused persons were not in police custody. Police was present when the accused persons were making confession to the villagers. It is also not in evidence that such confession was obtained by adopting any coercive method. Considering the evidence on record as also the circumstances in which such confessional statement was made by the accused before the villagers, we do not find any reason to reject the same and we are of the view that such confessional statement is acceptable and admissible in evidence. There is nothing in the evidence to show that the P.Ws. 9 to 13, before whom such confessional statement was made, had any enmity with the accused persons and so there was no reason as to why the said witnesses would implicate the accused persons falsely in this case. An extra judicial confession, if it is voluntary, can be relied upon by the Court along with other evidence in convicting the accused persons and the value of the evidence as to confession depends upon the veracity of the witnesses to whom such confession was made. After considering the evidence of P.Ws. 9 to 13, we do not find any reason to disbelieve the said witnesses.
As we have already said that this is a case of circumstantial evidence, we find that the evidence of P.Ws. 3 and 6 is very significant in the present case. P.W. 3 stated that he saw Indradeb @ Biman Banerjee returning to his place around 7 P.M. and he also saw the accused Suman Banerjee entering into the house of Indradeb Banerjee sometime thereafter. P.W. 3 also saw accused Suman Banerjee coming out of the said house of the deceased Biman Banerjee. Thereafter when P.W. 3 received the news of death of Biman Banerjee, he rushed to the place of occurrence and found the victim lying dead with cut injuries. P. W. 6 stated that he along with some other persons saw Biman Banerjee entering into the house of Ram Charan Bhakat, where deceased Biman Banerjee was a tenant, and about half an hour thereafter his cousin brother Suman Banerjee entered into the said house. P.W. 6 further deposed that about half an hour thereafter accused Suman Banerjee came out of that house and proceeded towards Sibtala. P.W. 6 further deposed that he learnt about the death of Biman Banerjee and rushed to the place of occurrence. He saw the victim Biman lying dead with cut injuries on his throat. So, these two witnesses (P.Ws. 3 and 6) saw last Biman Banerjee entering into the house and about half a hour thereafter they saw Suman Banerjee (accused) entering into the said house and coming out from the said house after sometime. Therefore, the evidence of "last seen together" is proved in view of the fact that Rita Banerjee was present at that time inside the house when the victim Biman Banerjee entered into the house and immediately thereafter accused Suman Banerjee also entered into the house.
In the present case, the motive was attributed by the prosecution to the fact that accused Rita Banerjee went to the house of Rabindranath Banerjee for watching TV and there she was found in a compromising position with the other accused Suman Banerjee and both of them were caught red-handed by the victim Biman Banerjee. This incident made the relationship of Biman and Rita strained. In addition to this, because of this illicit relation Rita Banerjee conceived and when Dr. T. K. Naskar (P.W.16) examined Rita Banerjee and found her pregnant, both Suman Banerjee and Rita Banerjee hatched up a conspiracy to eliminate Biman Banerjee from this world. These two aspects in the evidence, as noted above, are sufficient to prove the motive of the accused persons in committing the murder.
The learned Advocate of the appellants next relies upon a judgment of the Hon'ble Apex Court reported in 2007(8) Supreme 705 (Kapildeo Mandal & Ors Vs State of Bihar). Relying upon the said judgment, it is argued by the learned Advocate for the appellants that the witnesses examined by the prosecution in the present case are all interested witnesses and near relatives of the deceased and the learned Trial Judge should not have relied upon such witnesses in convicting the accused appellants. But we are unable to accept such contention as we find from the evidence on record that most of the witnesses examined in the present case are the co-villagers and they do not have any enmity with the accused persons. There cannot be any reason for the said witnesses for implicating the accused persons in the instant case falsely. The credibility of a witnesses cannot be judged merely on the basis of his close relation with the deceased and as such the same cannot be a ground to discard his testimony if the same otherwise inspires confidence and particularly when it is corroborated by the evidence of independent witnesses. In the present case, as we have seen, the prosecution witnesses corroborate each other on vital aspects and we do not find any reason to disbelieve the said witnesses.
So far as the recording of judicial confession under Section 164 Cr.P.C. is concerned, the learned Advocate of the appellants relies upon a judgment of the Hon'ble Supreme Court reported in 1995 SCC (Cri) 323 (Shivappa Vs State of Karnataka). In the said judgement, the Hon'ble Apex Court has laid down the procedure to be followed in recording confessional statement under Section 164 Cr. P.C. We have gone through the said judgement. The principle of law laid down in the said judgement is settled principle of law and in the present case, as we have observed, all the requirements of Section 164 Cr. P.C., were duly complied with. Therefore, the said judgment, in our considered view, is not at all applicable in the present case.
The next argument by the learned Advocate of the appellants is that the evidence of P.W. 6 regarding "last seen together" was not put to the accused in his examination under Section 313 Cr. P.C., but we are unable to accept such contention as we find from question nos. 16 and 34 in the examination under Section 313 of accused Rita Banerjee that such questions were put to the accused. Similarly in examination of accused Suman Banerjee such questions regarding "last seen together" were put to him as it will be evident from question nos. 16 and 34.
The learned Advocate of the appellants next argued that in the present case, P.M. examination was held at 3.15 P.M., but the alleged occurrence took place at 9 P.M. It was the contention of the learned Advocate of the appellants that if the P.M. examination was held at 3.15 P.M. the occurrence could not take place at 9 P.M. On examination of record we find that on 11.10.2000 at about 9 P.M. the incident took place. The inquest was held by the Officer in Charge of Sagardeghi Police Station on 11.10.2000 at about 10.45 P.M. and all papers were sent through the constable for P. M. examination. The post mortem report is marked as Ext. 14 and in the P. M. report reference of U.D. Case No. 20 of 2000 is also given. The doctor also wrote that he prepared the P.M. report on the basis of the inquest report, but unfortunately the doctor mentioned the date as 11.10.2000 in stead of 12.10.2000. Hence, we find that the learned Trial Judge has rightly held that it was really a bona fide mistake on the part of the said doctor. In the present case, we also find that there was no suggestion given by the defence to other witnesses and the doctor or the Investigating Officer specifically that the victim Biman Banerjee died on 11.10.2000 not at 9 P.M. but before 3.15 P.M. P.M. report was prepared on the basis of the inquest report and the evidence on record shows that the death of Biman Banerjee took place on 11.10.2000 around 9 P.M. The report also shows that the inquest was held at 10.45 P.M. on the same date and thereafter deadbody was handed over for P.M. examination, but unfortunately the doctor, who held P. M. examination over the deadbody, wrongly mentioned the date as 11.10.2000 in stead of 12.10.2000. In our considered view, this was a mistake on the part of the doctor, who held P.M. examination and such wrong mentioning of date due to mistake does not affect the prosecution case in any manner.
The learned Advocate appearing for the State / Respondent submits that this is a case in which conviction is mainly based on circumstantial evidence. The prosecution has been able to prove that accused Rita Banerjee developed an illicit relation with the accused Suman Banerjee and on one occasion both of them were caught red handed by the husband of the accused Rita Banerjee when accused Suman and Rita were found in a compromising position. It is also in evidence that accused Rita Banerjee conceived due to such illicit relation and it was at that point of time they hatched up a conspiracy to eliminate the victim i.e. the husband of accused Rita Banerjee. The accused appellants made confessional statements before the villagers namely, P.Ws. 9 to 13, admitted their guilt and gave a vivid description as to how they committed the murder of victim Biman Banerjee. The extra judicial confession made by the accused persons was supported by judicial confession. Judicial confession of the accused was recorded by the learned Magistrate after observing all the formalities and the same does not suffer from any infirmity. The learned Advocate further submits that there is also evidence of "last seen together". P.Ws. 3 and 6 are the witnesses, who saw the victim entering into his house and after half an hour they also saw accused Suman Banerjee entering into the said house. These two witnesses also noticed accused Suman Banerjee coming out of the said house after sometime. Accused Rita Banerjee was inside the said house and accused Suman Banerjee entered into the house and both of them committed the offence. The learned Advocate of the State also points out that some injuries were found on the person of the appellants, which were alleged to have been caused by the deceased. Blood stained articles / cloths were also recovered from the house of the accused persons and those were seized by the police under proper seizure list. It is the contention of the learned Advocate of the State that the learned Trial Judge was justified in relying upon the extra judicial confession before the villagers as also the confessional statements recorded by the learned Magistrate under Section 164 Cr.P.C. in convicting the accused appellants.
We have heard the learned Advocates of the respective parties. We have also scrutinized the entire evidence on record. As we have discussed above, in the present case, conviction is mainly based on circumstantial evidence as there is no eyewitness to the incident. The extra judicial confession by its very nature is a very weak piece of evidence and it requires appreciation with great care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. Court generally looks for independent reliable corroboration before placing any reliance upon an extra judicial confession before convicting the accused on such confessional statements. What amount of corroboration would be required in such a case, would always be a question of fact to be determined in the light of circumstances of each particular case. It is settled law that in a case of murder, in which the evidence available is only circumstantial in nature, the facts and circumstances from which the conclusion of guilt is required to be drawn by the prosecution, must be fully established beyond all reasonable doubt and the circumstances so established should not only be consistent with the guilt of the accused, but must exclude every reasonable hypothesis consistent with his innocence. In the present case, we find that the extra judicial confession of the accused appellants is well corroborated with other circumstantial evidence and the chain of circumstances is complete to prove the guilt of the accused. We do not find any reason to disbelieve the witnesses namely, P.Ws. 9 to 13, before whom an extra judicial confession was made. We also find that the said witnesses were cross- examined at length, but nothing infirm could be elicited to cast even a slightest doubt on their veracity. It should not be lost sight of that there was no reason as to why the said witnesses would falsely implicate the accused persons. There was no suggestion even of the motive of such false implication.
Although an argument was advanced regarding the acceptability of the confessional statement recorded by the learned Magistrate under Section 164 Cr. P.C., we have already observed that such statement was recorded by the Magistrate after complying with all the formalities, which were required under Section 164 Cr.P.C. The learned Magistrate on being fully satisfied about the desire of voluntary disclosure of guilt of the accused had recorded such confessional statement of the accused and there is nothing on record to show that such recording of confessional statement by the learned Magistrate suffers from any infirmity.
So far as the evidence of "last seen together" is concerned, there is evidence of P.Ws. 3 and 6, who categorically stated in their evidence that they saw the victim entering into his house and sometime thereafter the accused Suman also entered into the said house of the victim. These two witnesses also saw the accused Suman Banerjee to come out from the said house. Accused Rita Banerjee was admittedly the wife of the victim Biman Banerjee and she was inside the house when the incident took place. The deadbody of the deceased was found inside the house. So the accused persons are to explain how the unnatural death of victim Biman was caused. Some injuries were also found on the person of the accused persons allegedly caused by the victim Biman Banerjee. Blood stained articles including cloths were recovered from the house of the accused persons.
After scrutinizing the entire evidence on record, we agree with the conclusion arrived at by the learned Trial Judge. The totality of evidence of the witnesses, coupled with the extra judicial confession, the judicial confession recorded under Section 164 Cr. P.C. as also the medical evidence, makes it clear and sufficient to hold that the accused committed the offence in the manner and at the place as alleged by the prosecution. After appreciating the evidence on record, we agree with the conclusion arrived at by the learned Trial Judge. The judgment and order of conviction and sentence is hereby affirmed. The appeals, accordingly, fail and the same are dismissed.
The accused appellants, who are now in jail custody, will serve out the remaining period of their sentence.
A copy of this judgement along with LCR may be sent down to the court below immediately.
(DEBIPRASAD SENGUPTA, J.) I agree, (PRANAB KUMAR DEB, J.)