Calcutta High Court (Appellete Side)
Ananda Gopal Nandy vs State on 22 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
&
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 98 of 2003
ANANDA GOPAL NANDY
Vs.
STATE
Amicus Curiae : Mr. Moinak Bakshi, Advocate
For the Opposite Party/State : Mr. Neguive Ahmed , Advocate
Mrs. Kakali Chatterjee, Advocate
Heard on : November 22, 2017
Judgement on : November 22, 2017
Joymalya Bagchi, J. :
Judgment and order dated 18.01.2003 passed by the learned Additional Sessions Judge, 2nd Court, Asansol, Burdwan in ST 63 of 2001 arising out of SC 58/2000 convicting the appellant for committing offences punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous life imprisonment and to pay a fine of Rs.10,000/-, in default to suffer further rigorous imprisonment for two years has been assailed.
Prosecution case as alleged against the appellant is to the effect that on 12.04.1995 the Officer-in-Charge of South Asansol Police Station (PW 14) recorded the statement of the appellant wherein the appellant claimed that on that day at around 7.30 P.M. three persons had come to his residence at Sripalli, Asansol and expressed their desire to place an order of construction of a pandal. As they seated themselves inside the house of the appellant, his wife could identify the said persons; they gave Rs.500/- to the appellant as an advance for the pandal. Thereafter, his wife went to the kitchen for making tea for them. At this juncture, one of them sat beside the appellant while the other two went inside the kitchen and committed rape and murdered his wife. Thereafter, the aforesaid persons took away the advance of Rs.500/- and a further sum of Rs.200/- from the appellant. They also took the key of the almirah from the appellant, opened the almirah and after tying his hands from behind they fled away with ornaments and clothes. In the course of their conversation the appellant had come to know the name of one of the miscreants as Tapash. The aforesaid statement was recorded by PW 14 and on that basis Asansol South PS Case No.85 of 1995 dated 12.04.1995 was registered for investigation against one Tapash and two others for commission of offenced punishable under Sections 376/302/379/34 IPC. Investigation of the case was entrusted to PW 12 who held inquest over the dead body of the victim and sent her body for postmortem examination. Police seized wearing apparels of the victim and a tuft of hair from the palm of the victim and bloodstained mud from the place of occurrence which were sent for FSL examination. In the course of investigation, it appeared that although dacoity was alleged to have been committed at 19.30 hrs but the police was informed belatedly around 22.30 p.m.; postmortem examination of the victim revealed that there was no rape on her and nail scratch marks were noticed on the neck of the appellant. In the light of the aforesaid circumstances, suspicion arose as to the involvement of the appellant in the alleged crime and he was arrested on 16.04.1995. Thereafter, stolen properties were recovered from a jewellry shop at the instance of the appellant. The appellant also admitted before the Medical Officer (PW 7) that the nail scratch marks on his person were due to scuffle with his wife. In conclusion of investigation, charge sheet was filed against the appellant under Section 302/201 of IPC. The case being a sessions triable one, was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Asansol, Burdwan for trial and disposal. Charges were framed under Section 302/201 IPC. The appellant pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 14 witnesses and exhibited a number of documents.
The defence of the appellant was that around 9.30 p.m. in the night of 12.04.1995 three persons had come to his house in order to place an order for construction of a pandal and had given a sum of Rs.500/- to him in advance. Among those persons, one Tapash was known to his wife. Suddenly these persons attacked him with a revolver and tied him with a piece of cloth and opened the almirah and took money, gold ornaments and other important papers. By this time one of them held his wife and pushed her inside the room. He shouted 'dacoits dacoits'. Neighbouring people came there running. His wife caught one of them. In the meantime PW 2 informed the police over telephone. Police came and interrogated the local people. Police took him to the police station and asked him to sign on blank papers. He put his signature. He was kept inside the police station for 4/5 days and thereafter sent to the Court. He denied that he made statement to PW 14 which had been purportedly treated as first information report. Hence, he prayed for acquittal. He however did not examine any defense witness to establish his defense but sought to cross- examine the prosecution witnesses to probabilise his case.
In conclusion of trial, by judgment and order dated 18.01.2003 the trial Court convicted and sentenced the appellant, as aforesaid.
Mr. Bakshi, learned Advocate appearing for the appellant submitted that the prosecution case is based on circumstantial evidence and all the circumstances relied on by the prosecution have not been proved beyond reasonable doubt. He further submitted even if the said circumstances were believed to be true they do not form a complete chain and there are other circumstances which clearly improbabilize the prosecution case of the appellant being alone in the room with his wife and, therefore, being responsible for her death. He drew our attention to the opinion of the Forensic Science Laboratory expert (Exbt.9) which unequivocally established that the tuft of hair found in the palm of the victim did not match with that of the victim. Referring to this fact, it was strenuously argued that there was a third person in the room whose presence has not been explained by the prosecution. On the other hand, the defence version of dacoity in the house by outsiders is probabilized by the aforesaid circumstance. It is further submitted that the hands of the appellant were tied from behind which could not have been done but at the behest of another person. He also submitted that there is evidence on record that the appellant had been arrested on the selfsame day i.e. 12.04.1995 and therefore the prosecution case of subsequent arrest of the appellant on 16.04.1995 is clearly belied and renders the prosecution case implausible.
Mr. Ahmed, learned Counsel along with Mrs. Chatterjee, learned Counsel for the State sought to portray a different picture. They claimed that the conduct of the appellant in disowning his own statement to the police and delay in reporting the incident of dacoity which occurred on 7.30 p.m. clearly establish that the appellant did not portray the correct state of affairs as to how the victim was killed in her residence. The plea of rape on his wife was also belied during postmortem examination. It was pointed out that the appellant had admitted before the doctor (PW 7) that the scratch marks on his body were due to scuffling with his wife shortly prior to the incident. Therefore the plea of dacoity and murder of the victim housewife in the course of the such dacoity is rendered improbable.
It was further submitted that the recovery of the jewellery at the instance of the appellant also shows that the appellant had himself removed the said ornaments from the house and the said articles were recovered at his behest. Identity of the miscreant Tapash, who was alleged to have committed dacoity, was never established and rendered the defence version hollow.
In view of the falsity in the defence version and the fact that there is nothing on record to show that there was any other person present at the place of occurrence when the victim suffered homicidal death, it was the appellant who ought to be held responsible for murdering his wife. Hence, the appellant is liable to be dismissed.
The moot point which falls for decision in this appeal is whether the prosecution case based on circumstantial evidence has been proved beyond reasonable doubt.
From an analysis of the prosecution evidence, it appears that the prosecution case is that the appellant was alone with his wife in the night of 12.4.1995 and they had a scuffle soon before the incident resulting scratch injuries on the appellant. Soon thereafter, the wife suffered homicidal death due to a deep incised wound in her neck. As the appellant was alone in the room with the victim, it was he and he alone who could have caused the crime.
In order to camouflage his guilt, the appellant manufactured a false story before the police to the effect that 3 /4 persons had come to his house to place an order of constructing pandal and had paid an advance to him. It appeared that the persons were known to his wife and one of them was referred to as Tapash. His wife went to the kitchen to make tea and at that time one of the miscreants sat with him in the room while two of them went inside and raped and murdered his wife. Thereafter, they took the key of the almirah from the appellant and removed clothes, ornaments from the almirah and left the place after tying his hands behind his back. The prosecution claimed that although such incident had occurred at 7.30 p.m. in the night, the appellant raised a hue and cry much later and the matter was informed by the local people to police station around 10.30 p.m. whereupon the Officer-in-charge, Asansol (South) Police Station recorded the aforesaid statement of the appellant. As the investigation progressed, suspicion arose as to the role of the appellant in the aforesaid murder as the post mortem report of the victim did not speak of rape and the scratch marks were found on the appellant's body. Hence, he was arrested on 16.4.1995 and as shown by him, the investigating officer recovered gold ornaments of his wife from jewellery shop establishing the fact that the alleged dacoity was a mere ruse.
It is, therefore, the duty of the prosecution to establish the aforesaid circumstances proposed by them beyond reasonable doubt and show that they create a complete chain and unerringly point to the guilt of the appellant and rule out any possible hypothesis of innocence. Let me analyse the evidence on record in order to ascertain as to whether the prosecution has discharged such task beyond doubt.
P.W.1 is a resident of the locality of the appellant. He stated that on 12.4.1995 at about 7.30 p.m. he along with other members of Nagorik Morcha of ward no.3 were collecting subscriptions. After that, they were taking tea at the house of Mrinal Basu Choudhury at 10.00 p.m. At that time they heard a hue and cry and proceeded to the house of the appellant and found that the appellant was raising a hue and cry and claimed that dacoits had attacked his house. The appellant stated that the dacoits had assaulted him and had also attacked his wife. On receiving such information, P.W.1 was perturbed and in the meantime police came from the police station. They entered the room of the appellant and upon entering it appeared to them that the latter's wife was already dead. Police called some of them into the room. P.W.1, Tusarbabu and others entered the room of the appellant. Upon entering the kitchen they found that the wife of the appellant was lying on the floor with her face upward. They noticed a petty coat by the side of that room. They also noticed that blood was coming out from the neck of the wife of the appellant. They noticed the saree of the wife of the appellant just above her knee. They noticed that the blouse and saree of the wife of the appellant were not in order. At that moment he did not notice any injury on the person of the appellant. Police recovered a bloodstained knife from the kitchen. Police arrested the appellant on the very night and took him away from his house. Police showed them scratch marks on the person of the appellant. They were at the house of the appellant upto 3.00 a.m. Thereafter on 16.4.1995 police brought the appellant to a jewellery shop at S. B. Gorai Road. Police called him and other local people at that time. The appellant told that one pair of ear rings and a ring were given to that jewellery shop. The owner of that jewellery shop brought out one pair of gold ear ring and a ring and the appellant identified those ornaments as that of his wife. Police seized the said ornaments under a seizure list. They put their signatures on the seizure list (Exhibit 1/1).
In cross-examination, he stated that at about 10.00 p.m. the alleged incident had occurred. They entered the house of the appellant 30 /45 minutes after arrival of the police. On 16.4.95 at about 1.30 / 2.00 hours he was called by police to come to the jewellery shop. He had no talk with the police on the way from his house to the jewellery shop. After putting his signature at the jewellery shop he left for his house.
P.W.2 is another resident of the locality. He stated that on 12.4.1995 at about 10.00 p.m. he was in his bed when he heard that three dacoits had committed rape upon the wife of the appellant. He came out of his house and found that the appellant was raising a hue and cry and his hands were tied from behind. At that time para people assembled at the spot. The appellant told him that his wife was raped by the miscreants. P.W.2 asked the appellant regarding his wife. He entered the bedroom and found that the wife of the appellant was lying on the floor. Thereafter he rang Asansol Police Station from his telephone. Police came to the spot. After arrival of police he went inside his house. On 16.4.1995 police called him from his house and took him to the house of the appellant. He found that the appellant was in the custody of the police. Police seized articles under a seizure list. He could not recollect what was seized. From the house of the appellant he was taken to a jewellery shop. He put his signature on the seizure list which was prepared at the said jewellery shop (Exhibit 2/1). At the jewellery shop police seized one pair of gold ear rings and a ring as per identification of the appellant.
In cross-examination, he stated that at the relevant time the appellant used to deal in decorating business. He had no issue. Only the appellant and his wife used to reside in the house.
P.W.6 is a neighbour of the appellant. He stated that the house of the appellant was just behind his house. Suniti, the wife of the appellant, was known to him. The appellant was dealing in decorating business. On 12.4.1995 he was at Sripalli. The appellant and his wife used to reside in their own house. On hearing an alarm he came out of his house between 9.00 and 10.00 p.m. The alarm was raised as "dacoit, dacoit". After ascertaining the direction of the alarm, he went near the house of the appellant. At that time many people were proceeding towards the house of the appellant. He noticed that 2 /3 persons were running away through the passage between the house of the appellant and Tushar Burnwal. The appellant told him that his house was raided and the dacoits murdered his wife. He saw the deadbody of the victim lying in the space between the bedroom and kitchen. He noticed bleeding injuries on the neck of the wife of the appellant. There was no saree on the person of the wife of the appellant while she was lying on the space between her bedroom and the kitchen. He noticed the rope of the petty coat untied. He did not ascertain as to how the wife of the appellant had died. He had good terms with the appellant till date. The matrimonial life between the couple was good. He noticed that the hands of the appellant were tied from behind. On the alleged night of incident the appellant told him that his house was raided by dacoits.
P.W.9 also resided in the same neighbourhood. He deposed that on 12.4.1995 at about 9.30 /10.00 p.m. he heard an alarm "dacoit, dacoit" raised by the appellant and other para people. On hearing the alarm, he rushed to the house of the appellant and found that the appellant was standing bare bodied and his hands were tied from behind. On interrogation the appellant told them that on that day at about 7.30 /8.00 p.m. there was a dacoity in his house and the dacoits had murdered his wife. Thereafter they untied the hands of the appellant and entered inside his room. The appellant used to deal in decorating business. On entering the house of the appellant he found his wife lying without any clothes and there was blood at the place of occurrence. One Dr. Sen of the locality attended the victim and declared her dead. He found that the almirah of the appellant was open and clothing and other things were in scattered condition. At 7.30 p.m., he was not at his house.
These are the local people who have deposed with regard to the fact that around 10.00 p.m. the appellant had raised a hue and cry that dacoits had raided his house, assaulted him, raped and murdered his wife and had stolen away articles from his house. One of them, P.W.2, informed the police who came to the spot and thereafter they entered the house and found the wife of the appellant lying dead in a dishevelled condition with a cut injury on her neck.
P.Ws.3 and 4 are the relations of the victim who have been examined in the instant case.
P.W.3 stated that the victim is his niece and sometime in March/April, 1995 at about 10.00 p.m, he got information about the death of his niece, Suniti. He went to the house of his niece and found her body was lying inside the kitchen. He could not find the appellant in the house. He noticed bleeding injuries on the neck of the victim. Seeing the body of her niece he came out from the house and went to police station. He informed the police about the occurrence. He returned to the house of the appellant and found that police was there. He had no knowledge about her matrimonial life. He did not try to ascertain the cause of death. He put his signature on the inquest report (Exhibit 3/1).
In cross-examination, he stated that the parents of Suniti are alive. Brother of Suniti is also alive. He has good relation with the father of Suniti. He did not have any discussion with the father of Sunit over the incident.
P.W.4 is another uncle of the victim. He stated that on 12.4.1995 a nephew of the appellant came to his house and reported that Suniti had been murdered at the house of the appellant. He also stated that the appellant was present at the house at that time. He came to the house of the appellant in his scooter and found there was a gathering and police was also there. He searched for the appellant and found that the appellant had been taken away by police. He found the body of the victim between the bedroom and the kitchen. There was profuse bleeding from the neck of Suniti. He noticed a bunch of curly hair of a male person in one of her palms. He found a bloodstained knife by the side of the body of Suniti. He noticed a purple colour petty coat stained with blood. He was in the house of the appellant upto 1.00 hours and he did not hear any story of dacoity. He was unaware of the matrimonial life of the appellant and Suniti. He signed on the seizure list.
P.W.5 is a signatory to the inquest. He proved his signature (Exhibit 3/2). P.W.8 is a signatory to the seizure list prepared relating to the seizure of jewellery from the jewellery shop. He proved his signature marked Exhibit 1/3.
P.W.7 is the Medical Officer attached to Asansol S.D. Hospital at the material point of time. He examined the appellant who was produced before him by S.I. Sukumar Sinha and found multiple scratch marks on the neck and over inter scapular region. He found tenderness over left arm. He stated that the appellant was scratched by his wife in the evening on 12.4.1999 in the course of a scuffle. He proved the injury report marked Exhibit 5.
P.W. 13 was the Superintendent of Asansol Sadar Hospital at that material point of time. He conducted the post mortem over the dead body of Sunityrani Nandy and found following injuries:
i) Rigor mortis positive, average built.
ii) Cut throat injury, all structures of the throat were cut by sharp cutting weapon, cause of death, in my opinion, was due to shock & hemorrhage as a result of above injuries which were anti-mortem and homicidal in nature.
He stated that the injuries on the dead body were sufficient for her death. In cross-examination, he stated that the injuries could be caused by one person.
P.W. 14 was the Officer-in-Charge of Asansol South Police Station and deposed that on 12-04-1995 he recorded the statement of Anandagopal Nandi, the appellant who signed the same after the same was read over and explained (Ext. 12). It was written at the place of occurrence and forwarded to the police station. In cross-examination, he admitted that actual location of writing the complaint was not noted by him.
P.W. 11 was an S.I. of Asansol (South) Police Station. He stated that on 12-04-1995 at about 11:40 hours he received a written complaint of Ananda Gopal Nandi, which was forwarded to Officer-in-Charge, Asansol (S) Police Station and he started Asansol (S) P.S. case No. 85 dated 12-04-1995. He filed up the formal FIR under exhibit 7.
P.W. 12 was the investigating officer in the instant case. He stated that he examined the witnesses under section 161 Cr.P.C., visited the place of occurrence, drew up a rough sketch map (Ext. 8). He held the inquest over the dead body (Ext. 2). During inquest, he did not find any sign of rape on the dead body. He seized one petty coat stained with blood, one piece of copper bangle, one piece of iron bangle with gold plate, some hair and some stained mud. He proved the seizure list (Ext. 4). On 16-04-1995 he seized one gold ring with two stones and one pair of gold earrings fitted with one red stone. The above gold rings and pair of gold earrings were seized from New Dukhilal Ayodhya Prosad Jewellery at Rina Complex. The appellant took me to the said jewellery shop. This seizure list was also prepared and signed by me (Ext. 1). On the self same day he seized four pieces of gold coloured bronze churis, two gold coloured silver 'churs', one white printed silk half shirt, one purple colour tericot-full pant, two blue coloured handkerchiefs with white borders and one knife with wooden handle measuring about 8'' with blood stains from the house of appellant. This seizure list was also prepared and signed by him (Ext.
2). On 18-04-1995 he seized some hair of the appellant. He proved the seizure list (Ext. 6). On 13-04-1995 he seized chocolate coloured synthetic sari with blood, one light-rose colour cotton blouse, one white colour bra, two red colour "palas" and two conch shells. This seizure list was prepared and signed by him (Ext. 1). On 17-04-1995, he seized one 10 ft. X 2½ ft. white cloth sheet used in decoration and a hockey stick from the house of the appellant (Ext. 10). On 18-04-1995 he seized one "sita" necklace with locket fitted with red stone from the shop of Dukhila Aydhya Prosad Jewellary and the necklace was produced before him by Ajit Kr. Burnwal (Ext. 11). He collected post mortem report and F.S.L. report. The F.S.L. report is marked as exhibit 12. He identified the gold ornaments and other things seized in the course of investigation. In conclusion of investigation, he submitted charge sheet. In cross-examination, he stated that as no sign of rape was detected during post mortem and as per FIR the incident occurred at19:30 hours while information was received at 22.38 hours and there was no nail scratch marks on the neck of the appellant and the appellant had admitted his guilt before Tusar Barman and that they could not traced the whereabouts of the accused Tapash and no other piece of cloth of decorating business was seen in the room except one by which the hands of the appellant were tied, they suspected involvement of the appellant in the crime. There was no note in the case diary as to when the FIR was sent to the court of S.D.J.M., Asansol. The formal FIR was received by leaned S.D.J.M. on 17-04-1985. On 12-04-1995, he was assigned the case for investigation. On 16-04-1995 at about 12.15 hours he arrested the accused.
An analysis of the aforesaid evidence on record would show that the local people namely, P.Ws. 1, 2, 6 and P.W. 9 heard a hue and cry raised by the appellant that dacoits had attacked his house. On hearing such cries, they rushed to his house and found that the appellant's hands were tied from behind and the appellant told them that he was assaulted and his wife was raped and murdered by the dacoits. He also stated that dacoits had taken away valuable articles after opening the almirah. They found that the dead body of the victim was lying in a disheveled condition between the kitchen and bedroom and had a deep cut injury in her neck. She appeared to be dead. P.W. 2 summoned the police and P.W. 14, Officer-in-Charge of the Asansol (South) PS recorded the statement of the appellant which has been treated as FIR. The prosecution has strongly relied on the statement of the appellant which is said to have been recorded at the place of occurrence and wherein it is claimed that the appellant stated that the dacoity in his house took place at 7.30 PM. We have scanned the evidence of the witnesses, who were present at the spot when the police arrived. None of them claimed that the appellant made such statement to P.W. 14 at the place of occurrence. No one apart from P.W. 9 stated that the appellant had claimed that the dacoity took place at 7.30 PM. In cross-examination, P.W.9 admitted that he was not in the locality at 7.30 PM. On the other hand, evidence of P.W. 6 shows that when he was going towards the house of the appellant after hearing and hue and cry at 10 PM, when he found persons were running away from the house of the appellant through a narrow passage between the said and that of one P.W. 2, Tushar Burnwal. Such fact probabilises the defence theory that dacoity had occurred immediately prior to the raising of alarm by the appellant and did not state P.W. 6 saw the miscreants running away when he proceeded to the place of occurrence at 10 PM. The question, therefore, is whether the statement of the appellant purportedly recorded by P.W. 14 can be relied upon or not. While learned counsel for the prosecution has strongly relied on the said piece of evidence as the earliest version given out by the appellant as to the incident, the learned counsel for the appellant has severely criticized the said statement as an afterthought, which was prepared subsequently when the appellant was in police custody in order to implicate him. He drew out attention to the fact that the appellant has disowned the statement in his examination under Section 313 Cr.P.C. and also to the fact that P.W. 1 deposed that the appellant had been arrested at the spot on the very day i.e. on 12-04-1995. He further drew our attention to the fact that there was an inordinate delay of four days in forwarding the first information report to the jurisdictional Magistrate which was done on 17.4.95 only after the appellant was claimed to be arrested on 12.4.95 raises grave doubt as to when and under what circumstances the purported statement had been recorded.
I have given my anxious considerations to the rival version of the parties. Although, P.W. 14 categorically claimed that he had recorded the statement at the place of occurrence, none of the other prosecution witnesses present at the spot has corroborated such fact. There is also no noting in the said document i.e. exhibit 13 that it had been recorded at the place of occurrence. Furthermore, P.W. 1 unequivocally deposed that the appellant had been arrested from the place of occurrence itself and such evidence is corroborated by the uncles of the victim, P.W. 3 and P.W. 4 that the appellant was not present at the place of occurrence when they arrived at the spot and had been taken away by the police. It is, therefore, clear that the appellant had been detained by on the day of the incident itself and had been shown arrested as late as on 16.4.95 and produced before the Magistrate no 17.4.95 along with the FIR, that is, his purported statement to police, as aforesaid.
In the backdrop, if one examines the aforesaid statement of the appellant which was treated as first information report, there is every likelihood that the said document had been subsequently prepared when the appellant was in police custody and, therefore, I am loath to rely on the contents of the said document as an adverse circumstance against the appellant.
Prosecution has also relied on the evidence of P.W. 7, the Doctor, who treated the appellant to explain the genesis of the injuries on his person. P.W. 7 stated that the appellant told him during the medical examination that he had suffered the injuries due to scuffling with his wife on the date of the incident. On the other hand, P.W. 1 stated that when he met the appellant, the latter had claimed that he had been assaulted by the dacoits. One cannot lose sight of the fact that the medical examination of the appellant before P.W. 7 was done while he was in police custody and there is evidence on record that one S.I. Sukumar Sinha was present during such examination.
In view of the fact that the appellant had claimed to the local witnesses particularly P.W. 1 that he had been assaulted by the dacoits immediately after the incident, his incriminating explanation of the injuries before the doctor (PW 7) while he was in police custody and that too in the presence of police must be taken with a pinch of salt and ought not be relied upon.
Coming to the issue of recovery of gold jewellery of the deceased wife of the appellant from the jewellery shop, I find the circumstance that the appellant had led the investigating agency to such recovery is on very shaky ground. Although the appellant had been in custody and interrogated at length by the investigating officer, namely, P.W. 12, no leading statement of the appellant has been exhibited in the instant case. I am not unconscious that in appropriate cases oral statement of a person in custody may be admissible under Section 8 read with Section 27 of the Evidence Act, if it results in discovery of a fact pursuant to such statement. Even on such score, the prosecution evidence as to whether the appellant had made an oral statement leading to the seizure of gold ornaments, the ocular evidence is not consistent. P.W. 2 and P.W. 8 who are seizure list witnesses of the articles in the jewellery shop did not depose that on the showing of the appellant the police officer seized the gold ornaments. In view of such inconsistency in the evidence of the witnesses relating to the recovery of the gold ornaments pursuant to the statement of the appellant, I am loath to hold that the prosecution has been able to prove that the seizure of the jewelleries of the victim from the jewellery shop were pursuant to the leading statement of the appellant.
Finally, the death blow to the prosecution case is dealt by the recovery of a tuft of human hair recovered from the palm of the victim which did not match that of the appellant. It is the prosecution case that the appellant and the victim were alone in the house at the time of commission of the offence. However, in the course of investigation a tuft of hair was seized from the palm of the deceased. Hair was also seized from the appellant and forensic report (Ext. 9) showed that the hair seized from the palm of the deceased did not match with that of the appellant. Such evidence probabilises the presence of another person in the room apart from the appellant whose hair was recovered from the hand of the deceased immediately after the occurrence. This piece of evidence clearly breaches the chain of circumstances and the failure of the prosecution to explain away this circumstance which is irreconcilable with the prosecution version compels me to conclude that the chain of circumstances in the instant case is not complete and does not unerringly point to the guilt of the appellant.
It is also pertinent to note that the appellant was found with his hands tied from the back and there is no cogent evidence as to how and under what circumstances his hands were tied in that manner. Vague surmises that it is possible for a man to tie his hands from the back cannot be the foundation to absolutely rule out the possibility of the presence of a third person in the room at the time of commission of offence who had tied up the hands of the appellant in that manner.
It is trite law of prosecution has to stand on its own legs and cannot rely on the weaknesses in the in the defence version to establish its case. It is the prosecution case that the appellant was alone in the house and had murdered his wife. Presence of tuft of hair in the palm of the deceased wife which did not match with that of the appellant clearly throws a spanner to the prosecution version and rendering it wholly incompatible to an irevertible conclusion of guilt.
In view of the aforesaid discussion, I am inclined to extend the benefit of doubt to the appellant and acquit him of the charges levelled against him. The conviction and sentence imposed on the appellant is accordingly set aside.
The appeal is, allowed.
The appellant shall be forthwith released from the custody at once upon executing a bond to the satisfaction of learned Additional Chief Judicial Magistrate, Asansol, Burdwan for a period of six months in terms of the Section 437A Cr.P.C. Advance copy be sent to the Central Correctional Home at Medinipur city.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) Item no. 469 Raja/Apurba/Sanjib/Aloke