Calcutta High Court (Appellete Side)
Biswajit Jamadar @ Habla vs The State Of West Bengal on 15 July, 2015
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA 671 of 2013
Biswajit Jamadar @ Habla vs. The State of West Bengal
With
CRA 594 of 2014
Kanaiya @ Hukka Yadav vs. The State of West Bengal
For the appellant : Ms. Minati Gomes
For the State : Mr. Manjit Singh
Mr. Pawan Kumar Gupta
Judgment on: 15.07.2015.
Md. Mumtaz Khan, J. :
The above appeals have been preferred by the appellants assailing the judgment and order of conviction and sentence dated May 29th, 2013 passed by Additional District and Sessions Judge, 4th Court, Malda in Sessions Trial No. 42 of 2011 arising out of Sessions Case No. 326 of 2011. By virtue of the impugned judgment appellants have been convicted for the offence punishable U/s. 302/201/34 Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each in default to undergo simple imprisonment for six months for the offence under section 302/34 IPC and to suffer rigorous imprisonment for five years and to pay a fine of Rs. 10,000/- each in default to undergo simple imprisonment for six months each for offence under section 201/34 IPC with a direction that both the sentences will run concurrently. The prosecution case, in brief, as follows:-
On July 4th, 2009 at 09.15 hrs. a written complaint was lodged at the English Bazar P.S.,Malda, by Sailender Mallick,P.W.1, stating therein that on July 3rd, 2009 at about 5 p.m. in the evening his brother Lalit Mallik went out from house and did not return back and on that day (July 4th, 2009) at about 07 a.m. in the morning P.W.2, informed him that someone after killing his brother has left his body in the drain of railway quarter of Barrack Colony. He then went there and found the dead body to be of his brother.
On the basis of the said complaint case started against some unknown miscreants and investigation ensued and after completion of investigation charge sheet and subsequently supplementary charge sheet U/s. 302/34 IPC was filed against the appellants. Charge was framed on November 14th, 2011 against the appellants U/s. 302/34 IPC and when they pleaded not guilty to their involvement in the crime they were put to trial. Prosecution examined 15 witnesses including the complainant, his cousin brothers, uncles, villagers, rickshaw pullar besides the police personnels, doctor and IO and produced FIR, seizure list, inquest report, PM report, FSL and serological test reports etc. and one 'dao' which were marked exhibits 1 to 19 and Mat. Exhibit-I. After completion of trial and after examining the appellants u/s 313 Cr. P.C. learned Additional District & Sessions Judge, Malda, vide judgment and order dated May 29th, 2013 found them guilty of the offence punishable U/s. 302/34 IPC and 201/34 IPC and sentenced them to suffer rigorous imprisonment for life and fine of Rs. 10,000/- in default to undergo simple imprisonment for six months for the offence under section 302/34 IPC and rigorous imprisonment for five years and fine of Rs. 10,000/- in default to undergo simple imprisonment for six months for offence under section 201/34 IPC and the sentence so imposed were directed to run concurrently.
Being aggrieved from the aforesaid judgement, the appellants have preferred the instant appeals and the grounds raised in the appeals is that the Learned Court below did not consider the facts and circumstances of the case and the evidence on record in its proper perspective and made a wrong approach to the whole case and accordingly prayed for setting aside the impugned judgment and order of conviction and sentence.
Ms. Minati Gomes, learned Advocate appearing on behalf of the appellants has submitted that there is no eye witness to the incident in question and the entire case is based on circumstantial evidence and the circumstances from which the conclusion of guilt has been drawn has not been fully established and as such the impugned judgment and order of conviction and sentence passed by Ld. Court below is liable to be set aside. Our attention was drawn to the following facts on the basis of materials on record:-
1. According to the FIR victim went out from his house in the evening of July 3rd, 2009 but there is no evidence on record to show that he was seen in the company of these appellants and/or that they were last seen together.
2. In the case of circumstantial evidence motive has a very important role to play but in the instant case prosecution has failed to prove the motive behind the death of the victim.
3. In the instant case charge was framed against the appellants for the commission of the offence U/s. 302/34 IPC and no such charge was framed for the offence U/s. 201/34 IPC but in spite of that appellants have been convicted for the offence U/s. 201/34 IPC.
4. No such statement of the accused leading to the alleged recovery of the weapon of offence as claimed by the I.O. had been recorded. There are also contradictions relating to the recovery of the weapon of offence in between the statement of seizure witnesses namely P.W.8 and P.W.11. According to P.W.8 police went inside the house of accused Hukka and taken out one dao from his house whereas according to P.W.11, Hukka brought out dao from his quarter.
5. PW12, the rickshaw puller who claims to have last seen together the victim with the appellants but he has nowhere stated the name of the victim and only claimed that he saw one lame person with the appellants. He did not see the dead body or the photograph of the deceased, so how can he say that the person murdered was a lame person or that he had boarded his rickshaw.
It is also submitted by Ms. Minati Gomes, the learned Advocate for the appellant that in the case of circumstantial evidence chain of circumstances must be complete by reliable and clinching evidence and most clearly point out to the guilt of the accused, so as to lead to the conclusion that it is the accused only and no other person should have committed the offence of murder of the deceased.
Mr. Manjit Singh, learned counsel representing the state, fairly submitted that there is no eye witness to the incident and the entire case is based on circumstantial evidence and in the case of circumstantial evidence chain of circumstances must be completed to establish the guilt of the appellants. According to Mr. Singh, learned counsel representing the state, victim was a lame person. He had left his house July 3rd, 2009 in the evening and on the next morning (July 4th, 2009) his mutilated body bearing several sharp cut injuries was found lying in the drain which clearly suggests that he was brutally murdered. He also submitted that before his death victim was last seen together with the appellants by a rickshaw puller, PW12, so the chain is complete. According to learned counsel representing the state weapon of offence was recovered from Hukka, one of the appellants leading to the statements made during interrogation and there is no necessity to record the statement as section 27 of the Indian Evidence Act does not prescribe for recording of any statement of the accused.
We have considered the submissions made by the learned Counsels for the respective parties and have given our thoughtful consideration to the evidence of the prosecution witnesses, the materials on record including the FIR, inquest report, rough sketch map, seizure list, PM report, FSL and serological test report, charge sheet, charge framed amongst other materials for examining propriety of the impugned judgment and order of conviction and sentence.
Admittedly none of the witnesses examined by the prosecution are the witness to the occurrence and the entire case is based on the circumstantial evidence. It is well settled proposition of law that where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstance are found to be incompatible with the innocence of the accused. The chain of circumstance should be of a conclusive nature and must be complete and most clearly point out to the guilt of the accused. Reference may be made to the decision of Hanumant Gobind Nargundkar and another vs. State of Madhya Pradesh reported in A.I.R. 1952 Supreme Court 343 and the relevant portion of the above decision is quoted below:-
"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstance should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
The above proposition of law was also repeated and reiterated by the Hon'ble Supreme Court in the matter of Harishchandra Ladaku Thange v. State of Maharashtra, reported in (2008) 1 Supreme Court Cases (Cri) 755 and the relevant portions of the above decision are quoted below:-
"10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Sukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadroppa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt."
The learned court below took into consideration the evidences of the P.W.15, the doctor who held P.M. examination and found several sharp cut injuries on the person of the victim and opined that death was due to shock and hemorrhage due to the effects of the injuries which were anti-mortem and homicidal in nature, P.W. 8, P.W. 11, witnesses to the alleged recovery of weapon of the offence by the I.O., P.W.14, leading to the statement of the accused from the quarter of accused Hukka and P.W. 12, the rickshaw puller who allegedly last seen together the victim with the appellants to arrive at a conclusion that appellants were the only persons who could have committed the offence and none else.
So the first circumstances alleged against the appellants is that victim was last seen together in the company of the appellants. To prove this the only evidence is that of P.W.12, a rickshaw puller. According to this witness 03 years ago at about 9 P.M. appellants along with one lame person, all in drunken condition, boarded his rickshaw from the station and got down at railway Power House and in the next morning some boys told him that one of the person out of the three who boarded his rickshaw has been murdered. Admittedly he did not see the dead body. It is also his admission that many handicapped persons used to board his rickshaw. He has not disclosed the name of the person who told him about the murder of one of the person out of three who boarded his rickshaw nor any such person has been examined by the prosecution. He has not stated the name of the lame person who reportedly boarded his rickshaw and who was murdered nor he saw the dead body, then how can he say that the victim boarded his rickshaw or that the person murdered was a lame person. He even did not say to the I.O., P.W.14, during investigation that three persons hired his rickshaw from Rly. Station at 9 P.M. and got down at Rly. Power House. In such circumstances no presumption could be drawn on the issue of last seen together merely relying on such statement of P.W.12. That apart there was no other evidence in support of this circumstance. Even P.W.1, brother of the victim has not said with whom his brother went away. That being the position, we are of the view that prosecution has failed to prove the last seen theory against the appellants.
Another circumstances which the prosecution has tried to prove against the appellants is the recovery of the weapon of offence from the possession of one of the appellants. In this regard prosecution has relied on the evidences of P.W.14, the I.O. and P.W. 8 and P.W. 11, witnesses to the alleged recovery and seizure. According to P.W.14, on July 7th, 2009 he went to the P.O., arrested the accused persons/appellants and brought them to the P.S. and interrogated them and in consequence of such interrogation and as per statement of the accused he recovered the offending weapon from the quarter of the Hukka in presence of P.W.5, P.W.8 and P.W.11. He has not specified as per statement of which accused, he recovered the weapon of offence. Even the seizure list on this score is ambiguous. So save and except the solitary verbal claim of P.W.14, the I.O. there is no such statement leading to the reported recovery of weapon of the offence. Even I.O. had admitted that seized dao was not sealed and labelled at the P.O. The G.D.E. in question lodged by him soon after seizure of the weapon of offence was also not produced. Even the factum of recovery of offending weapon from the quarter of Hukka in consequence of interrogation and as per statements of accused was not put to the appellants during their examination u/s 313 Cr.P.C. P.W.5, one of the seizure witness has not at all supported the above claim of recovery of arm in his presence while there are contradictions in between the statement of P.W.8 and P.W.11,the other seizure witnesses. According to P.W.8, police went inside the house of accused Hukka and brought out one dao from his house. Interestingly during investigation he did not say this to the I.O. He has also not whispered about the presence of other appellant at the time of alleged recovery of weapon of offence which the I.O. has claimed. During cross- examination he even pleaded his ignorance about the contents of the seizure list and stated that as police told him that they have recovered the said dao and asked him to put his signature, so he put his signature on that paper standing outside the house. He also admitted that prior to entry into the house of Hukka police did not ask him to search their body. According to P.W.11, police took both the accused persons to the house of Hukka and then Hukka brought out dao from his quarter and at that time he was standing outside the said quarter. He also admitted that prior to entering into the quarter police did not ask him to search their body. In view of the above the claim of recovery of weapon of offence from the possession of appellant appears to be doubtful. Moreover, no inference can be drawn against the appellants by mere recovery of a weapon as a result of a reported disclosure to the police, if no evidence connecting the weapon with the crime alleged to have been committed by the appellants. This is missing in the present case. Even the origin or blood group on the dao could also not been determined as per the FSL and the Serological test reports (exts. 8 & 9). Therefore, this link in the chain of circumstances is also not established by the prosecution. The learned court below did not take into consideration the above fact of this case to apply the settled principle of law.
The other circumstances which the prosecution had tried to prove against the appellants is the motive behind such murder. In this regard prosecution had relied on the evidence of P.W.2,P.W.7 and P.W.8. According to them victim had a chance to get a loan in respect of his handicappedness and as such he was murdered by the appellants. But during cross-examination they have admitted that they have not seen any paper in respect of handicap loan of the victim. P.W.8, even admitted that his cousin brother did not get any handicap loan till his death. Interestingly the claim of above witnesses also does not find support from the complainant, brother of the victim. Admittedly no such paper in connection of any loan by the victim or about his handicappedness was seized by the I.O. nor he has made any investigation in this regard. The above story of loan appears to be guesswork and imaginary, thus not acceptable. More so no such question regarding motive as claimed by prosecution witnesses was put to the appellants during their examination u/s 313 Cr.P.C. In the instant case thus, we find that the circumstances from which the conclusion of guilt is to be drawn have not been fully established. This being the position, we have no option but to hold that the impugned judgement cannot be sustained in law because prosecution had failed to prove this circumstances also.
Learned court below convicted the appellants u/s 302/34 I.P.C. and u/s 201/34I.P.C. for commission of murder and causing disappearance of evidence after appreciating the evidence available on record. It was submitted by the learned Advocate appearing on behalf of the appellants that conviction of the appellants u/s 201/34I.P.C. was not proper as no charge was framed against them u/s 201/34I.P.C.
Now before dealing with the matter let us refer the relevant provisions of law under the Code of Criminal Procedure.
Section 221 : Where it is doubtful what offence has been committed. - (1) If a single act of series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once ; or he may be charged in alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
So from the above it is apparent that section 221(2) Cr.P.C. permits conviction without framing a separate charge.
Reference may be made to the decision of Sm. Kalawati and another vs. The State of Himachal Pradesh reported in A.I.R. 1953 Supreme Court 131 ( Vol.40,C.N.35 ) and the relevant paragraph of the above decision is quoted below:-
" 22. ............... Section 201 is not restricted to the case of a person who screens the actual offender, it can be applied even to a person guilty of the main offence, though as a matter of practice a Court will not convict a person both of the main offence and under S. 201. The Judicial Commissioner acquitted Kalawati of the offence under S. 201 for which she was convicted by the Sessions judge only because he thought that the main offence itself, namely, murder, was brought home to her. But if we think for the reasons given above that it would not be safe to convict her of the main offence the acquittal is no legal impediment to her conviction under S. 201. It was held by the Privy Council in Bengu v. Emperor, 52 Ind App 191 (P.C.) that in a charge of murder under S. 302 a conviction under S. 201 without a further charge being made was warranted by the provisions of S. 237, Criminal P.C. If Kalawati had been acquitted of an offence under S. 201 independently of the charge of murder against her, it would have been a different matter. But as her acquittal is so intimately related to the charge of the main offence, and as it took place only for the reason that she was held guilty of murder, there is no bar to the restoration of the conviction under S. 201."
Reference may be made to another decision in the matter of Anil Alias Raju Namdev Patil V. Administration of Daman & Diu, Daman and another reported in (2006) 13 Supreme Court Cases 36 and the relevant paragraphs of the above decision are as follows:-
"53. The question came up for consideration in Harjit Singh v. State of Punjab wherein, however, it was held: (SCC p. 471, paras 23-25) "23. Faced with this situation, the learned counsel appearing on behalf of the State relies upon a judgment of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao wherein an observation was made in the peculiar facts and circumstances of that case that even if the accused is not found guilty for commission of an offence under Sections 304 and 304-B of the Penal Code, he can still be convicted under Section 306 IPC thereof.
24. Omission to frame charges under Section 306 in terms of Section 215 of the Code of Criminal Procedure may or may not result in failure of justice, or prejudice the accused.
"25. It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on rerecord are such which would establish the said charge against the accused."
54. The propositions of law which can be culled out from the aforementioned judgments are:
(i) The appellant should not suffer any prejudice by reason of misjoinder of charges.
(ii) A conviction for lesser offence is permissible.
(iii) It should not result in failure of justice.
(iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges."
Reference may also be made to another decision in the matter of Bhimanna v. State of Karnataka, reported in (2012) 9 Supreme Court Cases 650 and the relevant paragraphs of the above decision are as follows:-
"28. The court must endeavour to find the truth. There would be "failure of justice" not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. "Prejudice", is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the court. (Vide Nageshwar Shri Krishna Ghobe v. State of Maharashtra, State v. T. Venkatesh Murthy, Rafiq Ahmad v. State of U.P. and Rattiram v. State of M.P.)"
Now the instant case is required to be examined in the light of the aforesaid settled legal positions.
It is admittedly a case of circumstantial evidence and thus, the evidence has to be examined in that context. On critical analysis of the evidence of the prosecution witnesses on record we do not find any such evidence to the effect that the appellants in order to screen themselves from legal punishment caused disappearance of the evidence of offence. Moreover no such question to that effect was even put to the appellants during their examination u/s 313 Cr.P.C. Learned court below has also omitted to record any reason towards conviction of the appellants u/s 201/34 I.P.C.
In view of the foregoing discussions, we hold that the prosecution has failed to establish the chain of circumstances which could link the appellants with the crime. The court below convicted the appellants on a mere superfluous approach without in depth analysis of the relevant facts.
Accordingly, both the appeals are allowed. The judgment and order of conviction and sentence dated 29.5.2013 passed by Additional District and Sessions Judge, 4th Court, Malda in Sessions Trial No. 42 of 2011 arising out of Sessions Case No. 326 of 2011 are hereby set aside.
Copy of this judgement along with the lower court records be sent down to the trial court for information and taking necessary action. Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan,J.) (Debasish Kar Gupta, J.)