Calcutta High Court (Appellete Side)
Joydeb Sarder vs The State Of West Bengal on 24 August, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Ravi Krishan Kapur
C.R.A. 421 of 2017
JOYDEB SARDER
VS
THE STATE OF WEST BENGAL
With
CRAN 280 of 2018
For the Appellant : Ms. Anusuya Sinha, Advocate
Mr. Avishek Sinha, Advocate
Ms. Eshita Dutta, Advocate
For the State : Ms. Faria Hossain, Advocate
Mr. M.F.A. Begg, Advocate
Heard on : August 24, 2018
Judgment on : August 24, 2018
Joymalya Bagchi, J. :
The appeal is taken up for hearing with the consent of the parties. The appeal is directed against the judgment and order dated 23.11.2016 and 24.11.2016 passed by the learned Additional Sessions Judge, Fast Track Court-II, Bichar Bhawan, Kolkata in Sessions Case No.29 of 2013 arises out of Sessions Trial No. ST No.2(7)/2013 convicting the appellant for commission of offences punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/-, in default to suffer further rigorous imprisonment for one year more.
Prosecution case as alleged against the appellant is to the effect that the victim Maya Biswas was a sex worker. Two months prior to the incident she had started residing on the ground floor of 24, Imam Bux Lane. Prior to that, she was residing at 97, Durgacharan Mitra Street with her sister Mamani Biswas, P.W. 3, the informant, in this case. The victim was married twice. Firstly, she had married one Soumen Biswas and two children were born from the said marriage. Subsequently, she married to one J. Mondal and a son was born from the said wedlock. Two years prior to the incident the victim developed a relationship with the appellant. He was unemployed and used to stay at 97, Durgacharan Mitra Street. He used to extract money from the victim for drinking and there was quarrel between them over such issue. He used to assault the victim also. After the victim had shifted to 24, Imam Box Lane, the appellant used to visit the victim at the said place. On 17th Kartick the victim had come to the residence of her sister Mamani and complained of ill treatment by the appellant over demands of money. She also informed Mamani that the appellant had threatened to kill her. Mamani advised the victim not to mix with the appellant. On 19th Kartick around 8 A.M. a girl, namely Purnima informed Mamani that there is an assemblage of people in front of 24, Imam Box Lane. Hearing this, she went there and found the victim was lying in her room in a dishevelled condition. She found bloodstains on the victim's wearing apparels. Money and mobile phone of the victim could not be traced. Mamani lodged complaint with the police authorities resulting in registration of Battala PS Case No.571dated 5.11.2012 under Section 302 IPC. Post-mortem examination revealed that the victim died due to manual strangulation. Appellant was arrested and upon medical examination marks of injuries were found on the appellant. Charge sheet was filed against the appellant in the instant case. The case was committed to Court of Sessions and transferred to the Court of Additional Sessions Judge, Fast Track Court-II, Bichar Bhawan, Kolkata for trial and disposal. Charge was framed under Section 302 IPC. The appellant pleaded not guilty and claimed to be tried.
In order to prove its case prosecution examined 14 witnesses and exhibited a number of documents.
The defence of the appellant was one of innocence and false implication. The appellant, however, did not examine any witness of his own but through cross-examination sought to improbabilise the prosecution case. In conclusion of trial, the learned Judge by impugned judgment and order convicted and sentenced the appellant, as aforesaid.
Ms. Sinha, learned Advocate for the appellant argued that the prosecution has not been able to prove its case beyond reasonable doubt. There is no direct evidence that the appellant had murdered the victim. There is no evidence that the appellant regularly resided with the victim at 24, Imam Bux Lane. Evidence of P.W. 12 that she had seen the appellant and victim close the door of the room on the fateful night and thereafter, had seen the appellant leave the room in the early hours of the next day, are embellishments which are not worthy of credence. Evidence of P.W. 5 that he had seen the appellant move hurriedly through the street in the morning is also unreliable, as such fact is not corroborated by other witnesses, including his wife Mamani, sister of the victim and informant in the instant case. Accordingly, she prayed for acquittal.
Ms. Hossain, learned Advocate for the State submitted that there are ample evidence that the appellant had inimical relationship with the victim. He used to extract money from her for drinking and when opposed used to assault her. Immediately prior to the incident, P.W. 12 had seen them quarrelling with each other. Evidence of P.Ws. 5, 10 and 11 clearly show that the appellant stayed with the victim on the night of the incident and had failed to explain the circumstances in which the victim died. Hence, the appeal is liable to be dismissed.
From the materials on record it appears that there is no direct evidence that the appellant had murdered the victim.
Prosecution has relied on the following circumstances to establish the guilt of the appellant:-
a) The appellant and the victim were known to each other and the appellant used to extract money from the victim for drinking. He used to assault the victim over such issue.
b) The victim was residing along with the appellant on the ground floor of 24, Imam Bux Lane, Kolkata-700006.
c) On the fateful night i.e. 4.11.2012 the appellant was seen quarrelling with the victim. Thereafter, they entered the room and closed the door.
d) At 4.30 A.M. P.W. 12, the caretaker saw the appellant leave the room after closing the door.
e) P.W. 11, owner of the house, went to collect rent from the tenants including the victim at 7 A.M. on 5.11.2012. He found the victim was not responding.
Upon opening the door he found that the victim was lying unconscious in a dishevelled condition.
f) P.W. 5 saw the appellant leaving the locality in a hurried manner and his hair was disarranged.
g) The victim was taken to Medical College & Hospital where she was declared dead.
h) P.W. 8, post mortem doctor, opined that the victim suffered homicidal death due to manual strangulation.
i) Appellant was arrested and old injury marks were found on his body.
j) Appellant failed to give explanation as to the circumstances in which the victim suffered homicidal death.
Let me examine from the evidence on record as to whether the prosecution has been able to prove the aforesaid circumstances beyond doubt and if so, whether such circumstances unerringly point to the guilt of the appellant or not.
P.W. 3, Mamani Biswas is the sister and informant in the instant case. She deposed that the victim was a sex worker. She used to reside at 97, D. C. Mitra Street. The appellant was her babu. He was unemployed. He used to assault her to extract money from her. The victim narrated the incident to her. Subsequently she shifted to 28, Imam Bux Lane. On 17th Kartick last year the victim informed her that the appellant had threatened he would murder her. She took the victim to Burtala Police Station but the latter was afraid to narrate the incident. On 19th Kartick last year one Purnima informed her and she went to the residence of the victim and found her lying on her bed. Blood was oozing out from her face and mouth. Police came to the spot, interrogated her and she put her LTI on the paper.
In cross-examination, she stated Polu Banerjee is the owner of premises no.28, Imam Bux Lane. It takes 1 and ½ minutes to go to Imam Bux Lane from D. C. Mitra Street. Her sister used to work from 10.00 a.m. to 1.30 p.m. and thereafter from 8.00 p.m. to 12/2 a.m. Earlier they used to work together. Except police station, she did not lodge complaint anywhere. Only the accused used to meet with her sister. Windows of room of her sister were kept open and outsiders could see the room through the window.
P.W. 4 is the mother of the victim. She corroborated the evidence of P.W. 3 with regard to ill treatment of the victim by the appellant. She deposed that all the earnings of the victim were taken by the appellant. Once the appellant snatched the mobile and money from the victim and fled away. When the victim attempted to catch the appellant, he tried to push her under a vehicle. One day in the morning she heard hue and cry. Her other daughter went to the room of the victim. She did not inform about the death of the victim thinking that she would cry.
P.W. 5, Palash Mondal is the husband of P.W. 3. He resided with his wife at 97, D. C. Mitra Street. He deposed that there was dispute between the victim and the appellant over money. Appellant threatened the victim that he would kill her. On 5.11.2012, while he was standing near Sitala Mandir at about 4.30 to 5.00 a.m. he saw appellant passing the place in a hurried manner and his hair was disarranged. When he asked the appellant where he was going, he did not give any reply. The appellant was tense. Subsequently, he heard that the victim was killed. He and his wife went to the house and found the deadbody of the victim.
In cross-examination, he stated to his wife that he saw the appellant prior to the incident.
P.W. 11 is the owner of the house where the victim used to reside. He deposed that the victim used to reside in a room situated under the staircase. Appellant used to stay with her. The victim paid Rs.50 per day as rent. She was residing in that room for the last 5/6 months. On 5.11.2012 he went to the house to collect rents at about 7 a.m. He called the victim two / three times but did not get any response from her. He collected rents from other tenants. As the victim did not respond, he pushed the door and went inside the room. He found the victim lying on the floor. Her clothes were disorganized. All the residents of the house came to the spot. Saliva was dripping from her mouth. He enquired of the caretaker of the building who stated that there was some quarrel between the appellant and the victim at about 11/11.30 p.m. and about 4.30 a.m. / 5 a.m. when she had gone to the toilet, she saw the appellant going out of the house. He stated that police seized articles from the room under a seizure list. He put his signature on the seizure list. He identified the articles in court.
P.W. 12, Chinta Das, caretaker of the house deposed that the victim used to stay in the ground floor of 28, Imam Bux Lane. Room of the victim was in front of her room. Victim was a sex worker and used to work outside and stayed in the house. The appellant used to reside with her. Victim stayed in the said house for 5/6 months. Appellant used to come to the house in drunken condition and forcibly snatched away money from the victim. On 5.11.2012 there was a quarrel between the victim and the appellant. Appellant assaulted the victim. Then the appellant closed the door. She also closed the door and went to sleep. At about 4.30 /5 a.m. when she got up to answer nature's call, she found the appellant coming out from the room of the victim and after closing the door he went away. At about 7.00 a.m. landlord Polu Banerjee came to collect rents from the tenants. He collected rent from everyone except the victim who did not open the door. Subsequently on being pushed the door opened and she saw the victim lying on the floor in her room in half clad condition. Police was informed. Police collected articles from the room under a seizure list. She identified the articles in court. He was cross-examined with regard to his previous statement before the police officer.
P.W. 9, Dipankar Saha is the doctor who was posted as Emergency Medical Officer at Medical College and Hospital. On 5.11.2012 he examined Maya Biswas, the victim, in connection with G.D. No. 194 dated 5.11.2012 and declared that she was brought dead. The dead body was sent for post mortem examination.
P.W. 8 conducted post mortem over the dead body of the victim and opined that the death was due to manual strangulation.
P.W. 10, Partha Sarathi Pal examined the appellant and found abrasion and scab injuries on the posterior aspect of left shoulder, right arm lateral aspect of right arm and right shoulder tip 6" from the right elbow bend. He opined that the injuries were 5/7 days old.
P.W. 14 is the investigating officer of the case. He deposed that he was posted as S.I. of Burtala Police Station on 5.12.2012. On that day in the morning at 9.00 a.m. while on duty, Constable Tarakeswar Rai informed that a lady was lying unconscious in a room at 28, Imum Bux Lane. He diarized the information as G.D. Entry no.385 dated 5.11.2012 (Ext.13) and left for the spot. On arrival at the spot he found many people had assembled in front of the building. He identified the owner of the building. He went into the room on the ground floor and found a lady named Maya Biswas lying unconscious. Her wearing apparels were in a disorganized state. Saliva and blood were coming out from her mouth and there were some scratch marks on her body. He informed the matter to O.C. Burtalla Police Station. O.C. came to the spot. It appeared that the victim had died. Matter was reported to Lalbazar and photographer and plan maker came from Lalbazar within 30/40 minutes. O.C. directed him to investigate the case. He told the photographer to take photographs of the deadbody. He identified the photographs which had been proved by P.W. 2, the photographer. He also identified the sketch map which had been prepared by the plan maker (P.W. 1) (Ext.1/a). Saliva and blood of the victim were collected on a cotton bandage. Control sample from the floor was also collected. He seized green coloured plastic bottle under a seizure list (Ext.6/a). He identified the articles in court. He recorded the statement of P.W. 3 (Ext.14). He returned to the police station and recorded G.D. Entry No. 422 dated 5.11.2012 (Ext.15). He drew up formal first information report (Ext.16). He arrested the accused near the fly over of Ultadanga and seized a mobile phone. He sent the accused for medical examination and collected the medical report (Ext.17). The accused was examined by expert of Forensic and State Medicine. He kept the seized articles in the Malkhana. He proved the seized mobile phone in court. Articles were sent for FSL. He identified the serology report (Ext.11) and submitted charge sheet against the appellant.
In cross-examination, he stated that he did not collect the tower location of the mobile on 05.11.2012. He did not collect call details in between the accused person and the deceased. He did not find any belonging of the accused person or identity proof at the time of searching the room of the victim. She did not institute any case against the owner of the premises to carry out illegal prostitution. One Chinta Das did not specifically state to her "Thereafter both of them closed the door of their room and I also closed my door and went to sleep". Chinta did not state to her that at about 4.30/5 a.m. he got up to answer the nature's call and while going towards bathroom he saw Chitta Roy coming out of the room of Maya Biswas after opening the door.
P.W. 13 is the serologist who proved her report.
From the aforesaid evidence it appears there was inimical relation between the appellant and the victim who were known to each other. Evidence has also come on record that the appellant used to extort money from the victim and assaulted her over such issue. P.W. 3, sister of the victim, claimed that two days prior to the incident the victim had complained that the appellant had threatened to murder her. In cross-examination she stated that except lodging complaint at Police Station she did not make any complaint to anyone. Even if one accepts that there was inimical relationship between the appellant and the victim establishing the motive of crime, it is the duty of the prosecution in a case based on circumstantial evidence to show that the circumstances relied upon by it are proved beyond doubt and unerringly point to the guilt of the appellant and rule out any other probable hypothesis militating against such conclusion. In Sharad Birdhichand Sarda vs State of Maharashta 1984 SCC (Cri) 487, the Apex Court held as follows:-
"The following conditions must be fulfilled before a case against an accused can be said to be fuly established on circumstantial evidence:
(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Applying the aforesaid ratio to the facts of this case, I consider it incumbent on the prosecution to show that it was the appellant alone who had access to the victim on the fateful night i.e. on 04.11.2012 when she suffered homicidal death so as to come to the irresistible conclusion he had committed the murder. In order to establish such state of affairs, prosecution has relied on the evidence of P.Ws. 5, 11 and 12. P.W. 11 is the owner of the house and P.W. 12 is the care taker. Both of them deposed that the appellant and the victim used to stay together in the ground floor of premises no. 28, Imum Bux Lane, Kolkata-
6. However, in the charge-sheet the address of the appellant has been shown as Haridaspur, P.S. Bongaon, P.O. Kalitpur, Dist. 24 Parganas (N) and in the FIR, P.W. 3 the sister of the victim, stated that the appellant was residing at Durgacharan Street. Furthermore, P.W. 14 in the course of investigation did not find any personal articles of the appellant in the room where the victim was found dead.
In the light of the aforesaid materials on record, it is debatable as to whether the appellant was ordinarily residing with the victim at the aforesaid premises as claimed by P.Ws. 11 and 12. It may be true that the appellant used to visit the victim off and on but it cannot be said with certainty that they were residing together as live-in partners in the said room.
In the backdrop of the aforesaid fact, a heavy duty is cast upon the prosecution to establish beyond doubt that on the fateful night the appellant had, in fact, resided with the victim. P.W. 12, the caretaker of the house claimed that she had seen the appellant and the victim quarrel on 04.11.2012 around 11/11.30 p.m. Thereafter they went inside the room and closed the door. On the next morning at about 4.30/5 a.m. appellant was seen in coming out of the room and went away. Deeper analysis of her evidence, however, reveals that the aforesaid circumstances, namely, the appellant and the victim after quarrel had gone into the room and closed the room and that the appellant was seen coming out of the room in the early hours of the next morning were stated by the witnesses for the first time in Court and are material omissions when compared with her earlier statement to the police. Hence, I consider it unsafe to rely on such embellished evidence of P.W. 12 to come to a finding that the appellant was with the victim in the room on the fateful night. P.W. 11 was reported of such facts by P.W. 12 and had no independent knowledge of such events. Hence, his version suffers from the vice of hearsay.
Apart from the aforesaid embellished version of P.W. 12, prosecution has also relied on the evidence of P.W. 5 who stated that around 4.30 to 5 a.m. he had seen the appellant on the road walking in hurried manner and his hair was dis-organized. I choose not to give much credence to the aforesaid evidence of P.W. 5 as the same is not corroborated by other prosecution witnesses including his own wife (P.W. 3), the informant in the instant case. Although P.W. 5 claimed that he had talk with P.W. 3 and informed her about the fact that he had seen the appellant in such manner, such circumstance is significantly absent in the FIR which was lodged by P.W. 3 soon thereafter as well as in her deposition in Court. No independent witness of the locality has also corroborated the version of P.W. 5 of having seen the appellant moving in a disheveled state in the locality in the earlier hours of 05.11.2012.
In the light of the aforesaid discussion, I find it unsafe to rely on the embellished version of P.W. 12 and the uncorroborated deposition of P.W. 5 to come to a finding that the appellant and the victim had been together on the fateful night in the room in the ground floor of 28, Imum Bux Lane and in the early hours of 05.11.2012 appellant had gone out of the room and was seen by P.Ws. 5 and 12, as aforesaid.
Hence, I am of the opinion that the most vital circumstance that the appellant and the victim were together on the fateful night when she suffered homicidal death has not been proved beyond reasonable doubt. Failure to prove this vital link in the chain of circumstances spells a death knell to the prosecution case as the chain stands snapped. In the absence of cogent evidence to establish exclusive access of the appellant to the victim in the fateful night when she suffered homicidal death, there is no scope of holding the appellant guilty of murder on the premise that he was unable to explain the circumstances in which the victim had suffered homicidal death.
The other circumstance, namely, old injuries on the body of the appellant cannot give rise to a definitive conclusion that the appellant was responsible for the murder of the victim and had suffered the injuries in the course of the incident.
Prosecution in the instant case has failed to prove beyond doubt that appellant and the victim were in the room alone on the night of 04.11.2012 when the latter suffered homicidal death and the appellant had left the said room on the early morning of the next day. Under such circumstances, I am constrained to hold the prosecution has not been able to prove beyond reasonable doubt the chain of circumstances relied upon by it to establish the guild of the appellant. Hence, the appellant is entitled to the benefit of the doubt.
In view of the aforesaid discussion, the conviction and sentence of the appellant is set aside. He is acquitted of the charge levelled against him. He shall forthwith be released from jail custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain be in force for six months in terms of Section 437A of Criminal Procedure Code.
The appeal is, thus, allowed. As the appeal is allowed, the application being CRAN 280 of 2018 is disposed of as infructuous.
Copy of the judgment along with lower court records be sent down to the court below at once for necessary compliance.
Photostat certified copy of this judgment, if applied for, be given to the parties on priority basis on compliance of all formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)