Calcutta High Court (Appellete Side)
Bimal @ Bimalendu Mondal vs The State Of West Bengal on 6 August, 2018
Author: Md. Mumtaz Khan
Bench: Md. Mumtaz Khan
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And.
The Hon'ble Justice Jay Sengupta
CRA No. 640 of 2004
Bimal @ Bimalendu Mondal.
Vs.
The State of West Bengal
For the petitioners : Mr. Apalak Basu, Amicus Curiae
: Mr. N.P. Agarwal
For the State
Mr. Subham Bhakat
Heard on : 29.06.2018.
Judgment on : 06.08.2018
Md. Mumtaz Khan, J. :
This appeal has been preferred by the appellant assailing the judgment and order of conviction dated September 23, 2004 and sentence dated September 24, 2004, passed by the learned Additional Sessions Judge, 3rd Court, Bankura in Sessions Trial No. 1(2) 2004 arising out of Sessions Case No. 3(9) of 2003. By virtue of the impugned judgment, the appellant was convicted for the commission of the offense punishable under Sections 302/201 of the Indian Penal Code (hereinafter referred to as the IPC) and was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 2000/- in default to suffer rigorous imprisonment for one year for the offence under Section 302 IPC and sentenced to suffer rigorous imprisonment for 4 years and pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for three months for the offence punishable under Section 201 IPC with a direction that both the sentences will run concurrently.
The case of the prosecution, in brief, is as follows:
On August 13, 2002 at about 03.00 p.m. dead body of the victim, Anima Mandal, was found floating in the pond of village Karakberia. The villagers then lifted the dead body from the pond and informed the matter to the Kotulpur Police Station. PW-1, brother of the deceased was also informed by P.W.13. On getting such information P.W.1 arrived there and found the dead body of his sister by the side of the pond. PW-14, Officer-in-charge, Kotulpur P.S. on the basis of the information received from one Ardhendu Mondal at about 22.45 hrs. started UD Case being No. 23/2002 dated August 13, 2002 and reached at the spot at 22.55 hrs. He held inquest over the dead body of the victim on the same day in presence of PW-1,PW- 8,PW-9 and Sridhar Ghosh and prepared a report ( Ext.6 ) and thereafter sent the dead body for postmortem examination at Bishnupur Sub-Divisional Hospital. On August 14 2002 at 12.30 p.m., PW-11 held postmortem examination over the dead body of the victim and during examination he found Haematoma (pale blood clot) over the muscle of right chest, all over the scalp, over the brain matter, submecuous hemorrhage over the inner wall of stomach and opined that death was due to shock in case of head injury, ante mortem and homicidal in nature with features of unknown poisoning.
On August 16, 2002, PW 1, lodged a written complaint (Ext.1) at Kotulpur Police Station alleging that appellant being lazy man in spite of having land did not like to do any cultivation work and whenever his sister, the wife of the appellant asked him to work he used to assault her. Like previous year, this year also on 16th Sravan P.W.1 visited his sister's house and gave her Rs. 1000/- asking her to get paddy planted in their land by engaging laborers. There was a heavy rain in the night of August 11/12, 2002, and as such in the morning of August 12, 2002 he visited his sister's house to see what the appellant was doing towards plantation of paddy. On seeing him, his crying sister reported that she had requested para people to see that her husband get the paddy planted in their land in time and accordingly para people told him to get rid of his laziness and plant paddy in his land through labourers and for this reason he assaulted her by fists and blows telling her why she reported the family matters to the villagers. P.W.1 then asked his sister to come to his house to which she refused and asked him not to say anymore to her husband in the matter of plantation of paddy. On hearing this P.W.1 left the house of his sister without taking any food. On the next day i.e. on August 13, 2002 P.W.1 got the news of floating of the dead body of his sister in the nearby tank and it was his firm belief that the appellant whom his sister used to asked to do the work of cultivation, after murdering her, threw her dead body in the tank. There was a delay in lodging the complaint due to shock and grief over the death of his sister.
On the basis of the above complaint, Kotulpur Police Station Case No. 35 dated August 16, 2002 was started by P.W.14 against the appellant under Section 302/ 201 of the IPC and he himself took over investigation of this case and thereafter on completion of investigation submitted charge sheet against the appellant on November 27, 2002 under Sections 302/201 IPC.
On February 11, 2004 charge under Sections 302/201 IPC was framed against the appellant and after he denied his involvement in the crime, trial commenced.
In order to prove the case, prosecution examined 14 witnesses and also produced and proved FIR, seizure list, rough sketch map, inquest report, postmortem report, etc. and thereafter on completion of trial and after examination of appellant under Section 313 of the Criminal Procedure Code (hereinafter in short as Cr.P.C.) and taking into account one document marked Ext. A on behalf of the defence, learned trial judge passed the impugned judgment.
It was submitted by Mr. Apalak Basu, learned Amicus Curiae engaged by this court that the impugned judgment, order of conviction and sentence are not sustainable in law for the following reasons:
1. There was no eyewitness to the occurrence and the entire case is based on circumstantial evidence but the prosecution has failed to complete the chain of circumstances to fasten the guilt of the appellant.
2. There was a delay of four days in lodging the complaint and such a delay has not been properly explained.
3. The name of the appellant surfaced in the FIR which was lodged only after four days of death of the victim. Although the inquest was held in presence of the de-facto complainant, but no such allegation was made at the time of holding inquest towards the involvement of the appellant in the death of his wife nor was there any such complaint against the appellant either to the police station or to the villagers towards the purported ill treatment of the appellant to his wife as claimed by the de-facto complainant.
4. The time of death or the cause of death of the victim was not established as the doctor himself was not sure whether the death of the victim was due to the effects of the injuries or due to poison.
Even the viscera of the victim was neither preserved nor was sent for forensic test.
5. No one saw the appellant with his wife just prior to her death whereas on the other hand PW-3 has clearly stated that 6/ 7 days prior to the incident appellant was not in the house.
6. The evidence of PW12, child witness was not reliable as he has nowhere stated that he saw the incident. Furthermore, during his examination under Section 164 Cr. P.C. on July 22, 2002, the learned Magistrate found his competency to be inadequate and accordingly did not take into account the evidence of PW12.
7. The entire case is based on the sole evidence of the interested witness and not a single independent villager has supported the prosecution case.
Reliance is placed by Mr. Basu upon the decisions of Javed Masood & Anr. V. State of Rajasthan reported in (2010), 2 C. Cr. LR. (SC) 44, Kanhaiya Lal v. State of Rajasthan reported in (2014) 2 C.Cr. LR (SC) 233, Tomaso Bruno & Anr. V. State of U.P. reported in (2015) 3 C Cr LR (SC) 34 and Machindra v. Sajjan Galfa Rankhamb reported in (2018) 1 SCC (Cri) 381 in support of his submissions.
Mr. N.P. Agarwal, learned Advocate appearing for the State, submitted that PW1, the brother of the victim fully corroborated the FIR and it was he who had last seen together the appellant and the victim on the previous day. According to Mr. Agarwal, the evidence of child witness, P.W.12, is very vital as he saw the incident and the defence had failed to impeach his credibility. According to Mr. Agarwal, death of the victim was due to the head injury which was ante mortem and homicidal in nature which proves the prosecution's allegation that the victim was assaulted by the appellant and thereafter her dead body was thrown in the pond. According to Mr. Agarwal, chain of circumstances leading to the death of the victim has been proved by the prosecution and the learned Trial Judge was quite justified in passing the impugned judgment.
We have given our thoughtful consideration to the submissions of the Ld. Counsel appearing for the respective parties and gone through the evidence of the prosecution witnesses and other materials on record for examining the propriety of the impugned judgement, order of conviction and sentence passed by the learned court below.
Learned trial Judge took into consideration the evidence of PW- 1 together with the evidence of Autopsy Surgeon to arrive at the conclusion that the circumstances established beyond reasonable doubt that the appellant murdered his wife namely the victim in his house and thereafter threw the dead body in the water tank near to his house in order to screen himself from the offence and accordingly passed the impugned judgment and order of conviction.
It was not in dispute that on August 13, 2002 dead body of the victim was found floating in a village pond and during postmortem examination on August 14, 2002 Autopsy Surgeon (P.W.11) found haematoma over the muscle of right chest, all over the scalp, over the brain matter, subcutaneous hemorrhage over the inner wall of stomach and opined that death was due to shock in case of head injury, ante mortem and homicidal in nature with features of unknown poisoning. According to him head injury might be caused by a 'lathi'. But during cross-examination he admitted that it would not be possible for him to say whether the death was caused due to head injury or poisoning but went on to say that it was homicidal in nature.
In the case at hand the witnesses examined by the prosecution are the brother of the victim (P.W.1) who is also the complainant, minor son of the victim (P.W.12), villagers and relations of the appellant namely mother and cousin brothers who all turned hostile besides the doctor and the investigating officer.
From the evidence of P.W.12, the minor child of the victim, it appears that he was projected as eye witness but the learned trial judge did not rely on his evidence as immediately after the incident when he was taken before the Magistrate for recording his statements under section 164 Cr.P.C. he failed to state any thing and his competency was also found to be lacking by the learned Magistrate (Ext.A). At the relevant time he was 7 years old. During his examination before court he has deposed that his father namely the appellant murdered his mother in the night by a 'lathi' and threw the dead body in the water tank. His evidence is totally silent as to how he came to know about this incident. Admittedly he is staying with his maternal uncle, P.W.1, and on that date also he came to court to depose with him. So the possibility of tutoring cannot be ruled out. Moreover, at the very initial stage he did not say so to the Magistrate nor there is any iota of evidence to show whatever he deposed before court was stated to any one else or even to the investigating officer or that on the relevant night he was with his mother. On the other hand, it is reflected from Ext.1 that he was all along brought up by P.W.1 in his house. Under the circumstances, we do not find any fault in the decision making process of the learned court below in ignoring the evidence of P.W.12.
The prosecution case, now it seems, hinges on the circumstantial evidence. The circumstances which the prosecution has tried to prove against the appellant was that on the previous day when P.W.1 visited the house of the appellant he saw marks of injury on the back of the victim and on being asked she told him that she was assaulted by the appellant and on the next day dead body of the victim was found floating in the nearby pond having injuries on her head.
It is the settled proposition of law that when the 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 compatible with the offence of the accused. The chain of circumstances should be of a conclusive nature and must be completed and must clearly point out the guilt of the accused.
PW-1 is the brother of the victim who lodged complaint against the appellant. He has deposed that on August 12, 2002 when he visited his sister's house, he found some marks of injuries on her back and on being asked, the victim told him that the appellant assaulted her as she had asked him to plant paddy in their land and on the next day i.e. on August 13, 2002 he was informed by PW13 about floating of the dead body of his sister in the pond having injuries on her head. So it was presumed that the appellant had murdered her and had thrown the dead body in the water of the tank. On being challenged by the defence he admitted that he did not lodge any complaint either to the police station or to the 'Panchyat' nor made any arrangement for treatment of his sister. He also admitted that he was present at the time of holding of inquest over the dead body of the victim held on that very date and did not make any complaint to the Police at the time of holding inquest.
On perusal of the evidences of independent witnesses namely PW2; adjoining house owner, PW3; neighbor, PW 4, P.W.5, P.W.7 and P.W.10, co-villagers, we find that none of them has supported the case of the prosecution. PW-3 was merely tendered by the prosecution for cross examination by the defence and during cross examination he specifically stated that accused left his house 5/ 6 days prior to death of the victim. PW2, PW 4,P.W.5, P.W.7and P.W.10 did not support the case of the prosecution which they were declared hostile by the prosecution and were challenged that during investigation they stated to the investigating officer that on the relevant night there was quarrel between appellant and the victim over plantation of paddy to which they denied. From the evidence of PW6, mother of the appellant, PW8,P.W.9 and PW13 cousin brothers of the appellant also we find that they too did not support the case of the prosecution for which they were also declared hostile by the prosecution and were cross examined by the prosecution but without any success.
It is true that according to settled proposition of law, the entire evidence of a hostile witness cannot be washed away from the record. Rather it is permissible to use the examination in chief as well as cross examination of those witnesses in so far as it supports the case of the prosecution and there is no bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. It has already been found out that PW 2, P.W.3, PW4, PW5, PW6, PW7, PW8, PW9 PW10 and PW13 have not stated anything during their examination in court towards the involvement of the appellant in commission of the offence alleged against him. But from the evidence of the investigating officer, PW 14, it appears that during investigation they stated before him about the frequent quarrels between the victim and the appellant on the issue of plantation of paddy and that the appellant used to assault the victim and for this reason also there was altercation and appellant assaulted the victim as a result of which the victim died. So from the above it can be safely concluded that the above witnesses have not revealed the truth before court. Moreover their statements before the I.O. was silent as to how they learnt that appellant assaulted his wife which resulted in her death.
Admittedly, P.W.14, on the basis of the information received from Ardhendu Mondal started UD case No. 23/2002 dated August 13, 2002 and went to the place of occurrence. P.W.14 also admitted that before 12.15 hrs. of August 16, 2002 there was no information that the victim was murdered. So, admittedly prior to the lodging of the complaint there was no allegation with regard to commission of murder of the victim by her husband namely the appellant. Even during the inquest P.W.1 though was present there did not make any complaint of murder of his sister by the appellant or about any such quarrel or assault upon the victim by the appellant nor any complaint was made by PW-8 or PW-9 who were present at the time of inquest. The allegation against the appellant towards ill treatment of his wife and causing her death surfaced only for the first time on August 16,2002 in the complaint lodged by P.W.1 after four days of the death of the victim. Even if we accept that due to shock and grief P.W.1 could not submit a written complaint against the appellant but we fail to understand the logic behind not complaining to the police when P.W.1 saw them at the place where dead body was found or at the time of holding inquest or immediately thereafter. Moreover, it reveals from the evidence of P.W.1that during his examination before court he did not fully corroborate the allegations made in his complainant (Ext.1). Ext1 is silent with regard to detection of marks of injury by P.W.1 on the back of the victim though there was allegation of assault. The claim of P.W.1 that on August 12, 2002 appellant was present in the house does not find support from Ext.1. Save and except P.W.1 none has supported his claim that on August 12, 2002 he visited the house of the victim. On the other hand P.W.3 deposed that 5/6 days prior to death of the victim appellant had gone out of his house and he was not even declared hostile by the prosecution for the reason best known to the prosecution. So there was no bar in relying on his evidence by the defence.
There was, however, no evidence on record that victim was last seen together with the appellant on the relevant night and/or just before her death. Even assuming that P.W.1 saw the appellant on August 12,2002 at his house and that victim had reported him that appellant assaulted her as she had asked him for plantation of paddy but this circumstance by itself does not lead to the irresistible conclusion that the appellant had killed the victim and thrown the dead body in the tank. It can not be presumed that the appellant was responsible for the murder, though grave suspicion arises against him. Save and except P.W.1 nothing was brought on record to show that there was no cordial relationship in between the appellant and the victim-wife. Moreover, circumstances of last seen together does not by itself necessarily lead to the inference that it was the appellant who committed the crime. Reference may be made to the decision of Kanhaiyalal vs. State of Rajasthan, reported in (2014) 4 Supreme Court Cases 715 and the relevant portions of the above decision are quoted below:-
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
15. The theory of last seen--the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan."
Furthermore, from the evidence of Autopsy Surgeon it appears that doctor was not sure about the cause of death as he detected some features of unknown poisoning besides head injuries. He clearly admitted during cross examination that it was not possible for him to say whether the death was caused due to head injury or by poisoning. He also admitted that those injuries found on the person of the victim might be caused by falling. There is nothing on record to show that viscera was preserved and was sent to the FSL for examination to ascertain the cause of death. The dead body of the victim was found floating in pond away from the house of the appellant. No evidence was produced how and when victim went there and/or her body was taken there. Presence of the appellant in the house on the relevant night was not proved conclusively either by direct or surrounding circumstances.
In such circumstances no presumption could be drawn on the issue of last seen together merely relying on such sole statement of P.W.1 only. Learned court below completely overlooked the above aspect. Thus, we find that the circumstance from which the conclusion of guilt is to be drawn has not been fully established. As such the decision of the learned court below on this score is not sustainable in law.
Learned court below convicted the appellant u/s 302/201 I.P.C. for commission of murder and causing disappearance of evidence after appreciating the evidence available on record. On critical analysis of the evidence of the prosecution witnesses on record we do not find any such evidence to the effect that the appellant in order to screen himself from legal punishment caused disappearance of the evidence of offence.
In view of the foregoing discussions, we find that the prosecution has failed to establish the chain of circumstances which could link the appellant with the crime. In this background we are of the considered opinion that learned court below has fallen in error in coming to the conclusion that the prosecution has established its case based on circumstantial evidence beyond all reasonable doubts. As such the judgment, order of conviction and sentence passed by the learned court below are liable to be set aside.
In the result appeal succeeds and is allowed. The appellant is given benefit of doubt and acquitted of the charge of offence punishable under section 302/201 I.P.C. The judgment and order of conviction dated September 23, 2004 and sentence dated September 24, 2004, passed by the learned Additional Sessions Judge, 3rd Court, Bankura in Sessions Trial No. 1(2) 2004 arising out of Sessions Case No. 3(9) of 2003 are hereby set aside. Appellant is, therefore, acquitted and set at liberty from this case. Appellant is in jail. He shall be released forthwith unless his detention is required in any other case.
Copy of this judgement along with the lower court records be sent down to the trial court immediately by special messenger for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard.
(Md. Mumtaz Khan, J.) I agree (Jay Sengupta, J.)