Calcutta High Court (Appellete Side)
Nemai Chatterjee vs State Of West Bengal on 13 September, 2011
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
1
Form J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
THE HON'BLE MR JUSTICE KALIDAS MUKHERJEE
AND
THE HON'BLE MR JUSTICE SYAMAL KANTI CHAKRABARTI
CRA NO. 2 OF 1999
Nemai Chatterjee
Vs.
State of West Bengal
For the Appellant : Mr. Souvik Mitra
Mr. Sourav Chatterjee
Mr. Shiladitya Banerjee
Mr. Debopratim Guha
For the State : Mr. Saswata Gopal Mukherjee
Mr. Rudradipta Nandy
HEARD ON : 28.07.2011, 05.08.2011, 09.08.2011,
10.08.2011 & 16.08.2011 & 17.08.2011
JUDGMENT ON : 13.09.2011
KALIDAS MUKHERJEE, J.:
1. This appeal is directed against the judgment of conviction and sentence passed by Learned Additional Sessions Judge, Alipore, South 24-Parganas 2 in Sessions Trial No. 1(1) 98 arising out of Session Case No. 17(5) 97 sentencing appellant to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for one year under section 376 of the Indian Penal Code and to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year under section 302 of the Indian Penal Code.
2. The prosecution case, in short, is that one Bablu Ghosh lodged a complaint with the Officer - in - charge of the Bishnupur PS alleging that on 01.02.91 the victim, aged about 13/14 years, the eldest daughter of Malati Pal, the resident of Kuleswar, was found lying dead in naked condition in the paddy field of Mahadev Sardar at about 8.00 AM on 01.02.91. The informant's sister-in-law, that is, the mother of the victim, was residing for the last seven months as tenant with her husband alongwith other family members in the house of late Tarapada Chatterjee at Kannyanagar Colony under Bishunupur Police Station. Nemai Chatterjee, the son of the landlord late Tarapada Chatterjee, used to go everyday to the house of proprietor of Weaving Company along with the victim for the last one month to enable the victim to learn the work of weaving. The Informant's sister-in-law was evicted from the house of Tarapada Chatterjee and she came back to Kuleswar. At the time of leaving the rented house, victim was told by the accused to meet him very often on the plea of securing a job for her. On that understanding the victim used to come to the house of the informant 3 at Jayrampore. She came to the house of the informant on Tuesday, that is, 29.01.91. On the next day, that is, Wednesday, in the morning she told the wife of the informant that she was going to the house of Nemai Chatterjee at Kannyanagar on the plea that the accused assured her to secure a job for her. On her return in the evening she told that Nemai had arranged a job of packaging for her at a daily wage of Rs. 15/- in the seeds store at Amtala from the next day. On Thursday, that is, 31.01.91 in the evening at about 4.30 PM the victim left the house of the informant telling that she was going to the house of the accused who assured that he would arranged a job and from house of the accused she would go straight to Kuleswar. On 31.01.91 at about 7/7.30PM Barin Roy and Proshanta Ghosh of his village saw Nemai and the victim proceeding towards Amtala talking together from the colony. Bijoy Ghosh also saw the victim and Nemai together on the edge of the Baidyabagan Math and he told her to return home as quickly as possible and the accused told that he would send her back to her house on time. The informant alleged that Nemai was in free mixing with the victim by giving assurance to her of securing a job and the accused was responsible for the murder of the victim.
3. Upon completion of investigation, charge sheet was submitted. The charges were framed under Sections 376/302 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried.
4. Mr. Souvik Mitra, the Learned Counsel appearing for the appellant submits that the prosecution case is based on circumstantial evidence and evidence 4 adduced by the prosecution on the point of the 'last seen together' is not at all sustainable. It is contended that the chain of circumstances is not complete and the Learned Trial Judge was not justified in relying on the evidence of PWs on the point of 'last seen together.'
5. Mr. Mitra, contends that the confessional statement of the accused recorded by the Learned Judicial Magistrate suffers from non compliance with the mandatory provisions of Section 164 Cr. P.C. It is contended that the Learned Magistrate did not explain to the accused that he would not be sent to the Police Custody and it was not asked to the accused whether there was any threat or inducement behind making such confessional statement. Mr. Mitra has put much stress on the fact that the accused was produced before the Learned Magistrate immediately after arrest and the time for reflection for 3 hours was not sufficient. Mr. Mitra, contends that the accused retracted the confession in answer to the questions put to him under Section 313 Cr. P.C. It is submitted that under such circumstances the confessional statement of the accused cannot be relied upon.
6. Mr. Mitra contends that the incident took place at night on January 31, 1991 and on the next day in the morning the dead body was found. It is contended that there was a long gap of time between the point of last seen together and the commission of death. Mr. Mitra has referred to and cited the decisions reported in AIR 1978 SC 1544 [Davendra Prasad Tiwari vs. State of U.P.]; (2007) 2 SCC (Cri) 162 [State of Goa vs. Sanjay Thakran and Anr.]; (2005) 12 SCC 438 [Jaswant Gir vs. State of Punjab] ; 1991 CRI L.J. 5 2191 [Inderjit Singh and Anr. vs. State of Punjab] ; 2002 SCC (Cri) 1128 [State of Orissa vs. Dibakar Naik and Ors.] ; (2011) 2 SCC 490 [Rabindra Kumar Pal alias Dara Singh vs. Republic of India]; (2007) 1 SCC (Cri) 702 [Babubhai Udesinh Parmar vs State of Gujarat] ; 2003 SCC (Cri) 712 [ Bhagwan Singh and Ors. vs. State of M.P.] ; AIR 1964 SCC 358 [State of U.P. vs. Singhara Singh and Ors.] ; 2002 CRI. L.J. 3301 [Gobardhan Rajbanshi vs. State of Jharkhand]; 1988 SCC (Cri) 711 [Kehar Singh and Ors. vs. State (Delhi Administration)]
7. Mr. Saswata Gopal Mukherjee, appearing for the State submits that although some of the PWs, namely, PW13, PW17 & PW18 were declared hostile, the totality of their evidence would go to show that they had seen the accused with the victim on 31.01.91 in the evening at Amtala, and on the very next morning it was found that victim was lying dead in naked condition.
8. Mr. Mukherjee, submits that the Learned Magistrate gave necessary caution to the accused before recording the confessional statement and also gave him time for reflection as noted in the order sheet and the statement. It is contended that there is no reason to discard the confessional statement recorded by the Learned Judicial Magistrate. Mr. Mukherjee contends that the evidence as to 'last seen together' coupled with the confessional statement would clearly go to show that it was the appellant who committed rape upon victim and thereafter caused her death by throttling. Mr. Mukherjee has referred to and cited the decisions 6 reported in (2003) 7 SCC 643 [Sucha Singh and Anr. vs. State of Punjab]; AIR 1998 SC 260 [Ammini and Ors. vs. State of Kerala]; (2003) 8 SCC 93 [Amit alias Ammu vs. State of Maharashtra].
9. It is clear that the prosecution case is based on circumstantial evidence. In the case of State of Goa vs. Sanjay Thakran & Anr. (supra) it has been held in paragraph 13 as follows :-
"The Prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;
(2) those circumstances should be
of a definite tendency
unerringly pointing towards
guilt of the accused;
(3) the circumstances, taken
cumulatively, should form a
chain so complete that there is
no escape from the conclusion
that within all human
probability the crime was
committed by the accused and
none else; and
(4) the circumstantial evidence in
order to sustain conviction
must be complete and
incapable of explanation of
any other hypothesis than
that of the guilt of the accused
and such evidence should not
only be consistent with the
guilt of the accused but should
7
be inconsistent with his
innocence."
10. PW13, Barin Roy was declared hostile. But during his cross-examination by the prosecution he could not remember if he had seen the victim and Nemai together going along the Amtala Road on January 31, 1991 in the evening.
11. PW17, before being declared hostile has stated that on the previous day of occurrence he had seen the victim and Nemai Chatterjee at Amtala in front of the Cinema Hall; it was about 4/4-30 PM; on the next day in the morning he found the dead body of the victim. He has further stated that he saw her in frock on her person in that afternoon. In the examination -
in - chief he has further stated that he saw the victim in the house of her maternal uncle at Jayrampore. He has also seen the dead body of the victim lying in naked condition in a paddy land.
12. PW 18, Bejoy Ghosh before being declared hostile has stated that on the previous day of occurrence at about 7/7.30 PM he had seen the victim and Nemai going along Amtala Road. In the cross-examination by defence he has stated that the victim used to come to her maternal uncle's house from time to time.
13. PW11, Sankar Pal has stated that he was formerly a weaver under Harendra Nath Basak ; Nemai Chatterjee was also a worker under Harendra Nath Basak; one girl came to call Nemai Chatterjee in the weaving centre.
8
14. PW12, Bholanath Guha, has also stated that he is a weaver under Harendra Nath Basak; Nemai and Sankar also used to work in the weaving machine of Harendra Nath Basak; he knew the victim who shifted to Jayrampore and she previously used to reside in the house of the accused as tenant.
15. PW14, Mamata Ghosh has stated that the victim was the daughter of her sister Malati; the victim used to reside in the house of Nemai Chatterjee as tenant for 4/5 months; and thereafter she was evicted and she shifted to her parent's house at Kuleswar. PW14 has further stated that the victim was in search of a job and she used to come to Nemai for securing a job. It is also in her evidence that the victim used to tell her that Nemai assured her to secure a job for her and on Tuesday she came to her house in order to meet Nemai for securing a job; on Wednesday the victim went to the house of Nemai and came back to her house in the afternoon and told that Nemai had asked her to come to him on Thursday for getting the job finalised; on Thursday at 4/4.30 PM the victim left her house. She has further stated that the victim was in black coloured frock & blue coloured 'Chadar'; On Friday, morning he heard hue and cry and after going to the paddy land found that the victim was lying dead in naked condition.
16. PW3, Bablu Ghosh, the informant has stated that the victim was the daughter of his sister-in-law who was a tenant in the house of Nemai Chatterjee, the accused; following a quarrel with the landlord, victim's father was evicted and he then shifted to his native place at Kuleswar. He 9 has further stated that Nemai used to ask the victim to see him frequently on the ground of arranging a job for her; on Thursday the victim left his house at 4 PM; before leaving the house she told that she was going to the house of Nemai Chatterjee in connection with getting a job and thereafter she would return to her own house at Kuleswar. In the morning of Friday there was a hue and cry around Jarampore field and after going to the field he found the victim lying dead in naked condition. He has stated that there were marks of bleeding injuries in the lower parts of her body; her pant was found torn and lying by the side of the dead body; her other wearing apparels, namely, black coloured frock, Shawl and Sweater were also lying by the side of her dead body. He has stated that police seized the frock, chappal, shawal etc. from the field.
17. From the evidence as discussed above it is clear that victim's father was a tenant in the house of the accused and following a quarrel her father was evicted and he went back to his native place at Kuleswar. It is also clear from the evidence that PW11 & PW12 used to work with the accused in the weaving machine of Bholanath Guha. It is also found that the victim used to go to that weaving centre of Bholanath to call Nemai. From the evidence of PWs 13, 17 &18, although they were declared hostile, it would appear from the totality of their evidence that they had seen the victim on Thrusday in the evening at Amtala Road. There is no reason to discard such evidence of PWs on the point of 'last seen together'. Although they were declared hostile, it is also clear from the evidence that the victim had 10 gone to the house of Bablu Ghosh (PW3) wherefrom she went to the house of the accused stating that the accused had arranged a job for her. There is no reason to discard the evidence of PWs that the victim went to the house of accused on Thursday and they were last seen together at Amtala. From the evidence of PWs it is also clear that the accused had assured her of arranging a job for her. The evidence of PWs is cogent and unimpeachable.
18. Mr. Mitra has cited the case of Jaswant Gir vs. State of Punjab (supra) on the point of a long gap of time between the point of 'last seen together' and the commission of death. It is contended that the long gap of time would be the sufficient ground to discard the evidence adduced by the prosecution on the point of 'last seen together'. It is clear that the deceased was last seen with the accused on 31.01.91 at about 7/7.30 PM and on the next morning, the dead body was found lying in the field in naked condition.
19. The Autopsy Surgeon (PW19) has stated that he held post mortem examination on 02.02.91 at 03.15 PM. In the cross-examination he has stated that the time of death was 24 to 36 hours prior to holding of post mortem examination. Such being the position, the time of death occurring 36 hours prior to the time of holding the post mortem examination, clearly indicates that death was caused in the night of 31.01.91. The gap of time indicating proximity depends on the circumstances of each case. In the case of State of Goa vs. Sanjay Thakran (supra) it has been held in paragraph 34 as follows :-
".......But, in all cases, it cannot be said that the evidence of last seen together is 11 to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances, in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime in the intervening period, the proof of last seen together would be relevant evidence."
20. Here, in the instant case it is clear that on 31st January 1991 the appellant was in the company of the deceased and from the confessional statement it is clear that after committing rape upon victim and causing her death he came straight to his house. Therefore, it is clear that in the intervening period there was no possibility of any other person meeting the deceased at the night in the field. The theory of last seen together, tallies with the confessional statement and it finds corroboration from the 12 evidence of PWs. Mr. Mukherjee rightly submits that the point of last seen together having been established by the prosecution, no explanation is forthcoming from the side of the accused as to how the death was caused.
21. In the next place, there is one confessional statement made by the accused. Mr. Mitra, appearing for the appellant has referred to the decision in the case of Dara Singh vs. Republic of India (supra)(para 64) as to the conditions to be complied with while recording the confessional statement under section 164 Cr. P.C.
22. PW20, is the Learned Judicial Magistrate, who recorded the confessional statement. It is in his evidence that on 02.02.91 he recorded the confessional statement of the accused Nemai Chatterjee under section 164 Cr. P.C. after observing all the formalities. He has further stated that he ascertained that the accused was going to make statement voluntarily; he warned accused and put questions to him before recording the confessional statement. In the cross-examination he has stated to the accused that he allowed the accused time for reflection, but the word reflection was not mentioned in his report. In the cross-examination he has stated that it was not in his report that after recording the statement he stated to the accused that he would not be sent to the Police Custody. Mr. Mukherjee, on this point has drawn our attention to the order sheet wherefrom it is found that after recording the statement under section 164 Cr. P.C. the accused was sent to the Judicial Custody. 13
23. The accused in his statement under section 164 Cr. P.C. has stated that the victim came to him with the request to arrange a job for her and he took her to Amtala Sweetmeat shop; thereafter he was going with the victim along the field and at that time he got excited and he unrobed her and committed rape upon her ; at that time some persons were coming along that side and in order to prevent the victim from raising alarm he put pressure on her mouth and throat and in the process she died.
24. Having regard to the questions put by the Learned Judicial Magistrate to the accused and the time for reflection given to the accused, we are of the considered view that there is no reason to discard the confessional statement recorded under Section 164 Cr. P.C. It is truthful, deliberate and voluntarily made. The retraction was made by the accused after a long gap of time, that is, at the time of examination under section 313 Cr. P.C. Since there was long gap between making such confessional statement and the retraction made at the time of examination under section 313 Cr. P.C., we are of the considered view that the retraction so made is the outcome of an afterthought.
25. The autopsy surgeon (PW19) has noted the following injuries on the person of the deceased.
"1) Abrasion over the lateral part of right ankle measuring 2" x 1".
2) Abrasion over middle side of both thighs upper part measuring 3" x 2"
each.14
3) One crescentic scar mark over the lateral part of right throat measuring 1/6" x 1/6".
4) Two scratch marks in between two breasts over sternum body crescentic in nature 1/6" x 1/6".
5) Crescentic scratch mark over the upper part of left throat measuring 1" x 1/4".
6) Scratch mark over the upper part of the right side throat measuring 1" x 1/4".
7) Abrasion over the right cheek measuring 1/2" x 1/2".
8) Abrasion over the lateral part of left side of the neck measuring 1½" x ½".
9) Abrasion over the right scapular region middle portion measuring 1" x 1".
10) One abrasion over the lateral part of right scapular region measuring 2" x 1".
11) Abrasion over the back of left arm middle portion measuring 1/2" x 1/2".
12) Abrasion over the right buttock measuring 1 ½" x 1 ½".
13) Abrasion over the lower part of right scapular region measuring 1 ½" x 1".
14) 3 (three) small crescentic scratch marks over the left side of the neck 1 / 4" x 1/4" each covering an area of 3"x1".
15) Abrasion over the right side of the neck measuring 1/2" x 1/2" upper part closed to thyroid cartilage.
15
16) Abrasion over the left side of the neck anteriorly lower part measuring 1 ½" x 1".
17) Abrasion over both lips measuring 1 " x ½".
18) Bruise over the left buttock measuring 6" x 6".
19) Bruise over lumbar region measuring 3" x 3".
20) Bruise over left scapular region measuring 2" x 2".
21) Bruise over right elbow measuring 1" x 1".
22) Bruise over the back of right arm lower part measuring ½" x ½".
23) Bruise over the left side mandibular region measuring 2" x 1".
24) Thick deep red bruise over the neck anteriorly upper part closed to lover border of mandible extending on both sides measuring 4"x 1 ½". All the abrasions are unscabbed with deep red corresponding bruises and having evidence of vital reaction.
Cyanosis - Patoechial Haemorrhagic spot over forehead ear lobes deep of nose and both cheeks.
Lungs - On both sides highly congested with Patoechial haemorrhagic spot in all lobes of the lungs.
Organs of generation - 1 laceracted wound over outer part of right side of vagina externally measuring ½" x ½" into muscle deep with evidence of blood clots.
Death in my opinion was due to the effects of throttling as stated above ante - mortem and homicidal in nature.
16
These injuries might be caused due to scuffling and impact against hard- blunt substances like floor, and rough substance, field, etc. Scuffling would always be in the defence.
Lacerated injury in the vagina might be due to sexual intercourse by force.
All these injuries in the ordinary course of nature were sufficient to cause death."
26. From the evidence of the doctor it appears that the death was caused due to throttling. The confessional statement of the accused that when some persons were coming along that field, he put pressure on the mouth and throat of the victim in order to prevent her from raising alarm is, therefore, consistent with the evidence of the doctor. The doctor has further stated that the injuries were sustained by the deceased due to scuffling and impact against hard-blunt substance, field etc. and such scuffling was in defence. It is also clear from his evidence that the lacerated injury in the vagina was due to sexual intercourse by force.
27. Confessional statement made by the accused that he committed rape upon the victim is consistent with the evidence of the doctor. The abrasions sustained by the victim in different parts of her body clearly indicate that she resisted when she was forcibly subjected to sexual assault and thereafter she was throttled to death. The injuries sustained by the deceased as noted by the doctor are consistent with the confessional statement of the accused. Therefore, there is no doubt that it was the 17 appellant who committed rape upon her and thereafter caused her death by throttling. The chain of circumstances in proof of the guilt of accused beyond reasonable doubt is complete and the circumstances are consistent with the guilt of the accused.
28. Mr. Mitra appearing for the appellant has cited the decision in the case of State of Orissa vs. Dibakar Naik and Ors. and submitted that if the confessional statement is believed to be true and voluntarily made, in that case it may be considered that the appellant did not intend to cause death as he only put pressure on the mouth of the deceased to prevent her from raising any alarm as some other passersby were going along the area. In the case of State of Orissa vs. Dibakar Naik and Ors. (supra) it has been held in para 24 as follows ;-
"Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely, by such act, to cause death, is responsible for the commission of the offence of culpable homicide. Culpable homicide is murder if the act by which the death is caused is done with the intention of causing death and is not covered by any of the exceptions of Section 300 of the Indian Penal Code. As already noticed, in this case there is no evidence to show that the aforesaid accused persons proved to have been involved in the occurrence, had intended to cause the offence of murder within the meaning of Section 300 as punishable under Section 302 of the Indian Penal Code. However, on proof of the commission of offence of gang rape found to have been committed in a violent manner, they are assumed to be having the knowledge that by their action it was likely that the 18 deceased would have died. The aforesaid accused are, therefore, guilty of the offence, punishable under Part II of Section 304 of the Indian Penal Code. While acquitting the other repondents we hold Birabar Mania (A-5), Babaji Mania (A-6) Bhira Behera@ Baba Tanti (A-7) and Madha Tanti @ Madhabananda Parmanik (A-11) guilty for the commission of offences punishable under Section 304 Part II read with Section 34 of the Indian Penal Code besides the commission of offence punishable under Section 376 read with Section 34 of the Indian Penal Code. The conviction and sentence awarded by the trial court to Birabar Mania (A-5), Babaji Mania (A-6) Bhira Behera@ Baba Tanti (A-7) and Madha Tanti @ Madhabananda Parmanik (A-11) under Section 376 of the Indian Penal Code is upheld. On proof of the offence punishable under Section 304 Part II read with Section 34 IPC, the aforesaid accused persons are sentenced to undergo rigorous imprisonment for 10 years. Both the sentences shall run concurrently."
29. Having regard to the nature of injuries sustained by the deceased and relying on the decision in the case of State of Orissa vs. Dibkar Naik & Ors. (supra), we are of the considered view that the appellant did not intend to cause death and it is a fit case where conviction can be altered from Section 302 to Section 304 Part II of the Indian Penal Code.
30. Having regard to the entire materials on record and after giving anxious consideration to the submission made by the learned counsel appearing for the parties we affirm the conviction and sentence recorded by the Learned Trial Judge under section 376 of the Indian Penal Code. But we alter the conviction from section 302 to Section 304 Part II of the Indian Penal Code and the appellant is sentenced to suffer rigorous imprisonment for 10 19 years. Both the sentences shall run concurrently. The impugned Judgment stands modified to the extent stated above.
31. The appeal is allowed in part.
32. Let a copy of this judgment along with the Lower Court Records be sent to the learned court below immediately.
33. A copy of this judgement be also sent to the Correctional Home where the appellant is now detained.
34. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J. ) I Agree, (Syamal Kanti Chakrabarti, J.)