Calcutta High Court (Appellete Side)
Ujjal Mandal & Ors vs State Of West Bengal on 4 May, 2011
Author: Ashim Kumar Roy
Bench: J. N. Patel, Ashim Kumar Roy
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Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Chief Justice Mr. J. N. Patel
And
The Hon'ble Mr. Justice Ashim Kumar Roy
C.R.A. NO. 202 of 2007
Ujjal Mandal & Ors.
Versus
State of West Bengal
For the Appellants : Mr. Joymalya Bagchi
Mr. Deep Chaim Kabir
Ms. Rupa bandopadhyay
For the State : Mr. S. K. Mahato
Heard on: March 22nd, March 23rd, & March 28th, 2011.
Judgment on: 04-05-2011
ASHIM KUMAR ROY, J.:
This appeal has been preferred before us by five convicts, viz., Ujjal Mandal, Shanti Ghosal @ Seno, Gurupada Mandal, Ranjan Bagdi and Bhakta Majhi, who in a sessions trial held before the learned Additional District and Sessions Judge, Fast Track Court, Bishnupur, were convicted under Sections 302/201/34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs. 2,000/- each, in default to suffer imprisonment for 2 one year for their conviction under Sections 302/34 of the Indian Penal Code and to suffer imprisonment for 2 years and to pay a fine of Rs. 2,000/- each in default to suffer further imprisonment for six months for a charge under Sections 201/34 of the Indian Penal Code. Both the sentences were directed to run concurrently.
2. The prosecution case which led to the conviction of the appellants in a nutshell are as follows;
On September 10, 2005 in the evening the deceased Samsul Haque Mondal left his house with a torch and radio set, as he did not return home even after the late night his son Badsha Alam Mondal, the informant started searching for him and came to learn from one Kausor Mondal that at about 10 p.m. at night on that day he found the appellants were fighting with him at Hattola. Upon receipt of such information when the informant contacted the appellants they denied their knowledge about his father and told that he has gone to the house of his relative. On the next day the whereabouts of the deceased could not be ascertained. However, on September 12, 2005 in the early morning his son got an information that a dead body was floating in the pond of one Saroj Mondal of their village. He immediately rushed to the spot and with the help of some neighbours lifted the dead body from water and found the same was of his father.
After discovery of the dead body the police was informed and inquest was held at about 7.15 hours on September 12, 2005 and then on the selfsame day, i.e., September 12, 2005 at about 17.15 hours a FIR was lodged against 3 these appellants. After conclusion of investigation of the said case police submitted charge-sheet for the selfsame offences for which FIR was registered.
The appellants were then placed on trial before the learned Additional District and Sessions Judge, Fast Track Court, Bishnupur to answer charges under Sections 302/201/34 of the Indian Penal Code.
3. We have heard the learned Counsel appearing on behalf of the parties. Perused the deposition of the witnesses, other materials on record as well as the impugned judgement.
4. This is a case where there was no eyewitness as to how the victim was allegedly killed and in the trial the prosecution proposed to rely on the circumstantial evidence to establish the charge against the appellants. The circumstances relied upon the prosecution against the appellants are enumerated below :-
(a) Before his disappearance, the deceased left home with a torchlight and a transistor radio set and informing the inmates of his house that he was going to attend a feast with the appellants at Hattala.
(b) On the fateful day, i.e. on September 10, 2005 at about 8.30 p.m. the P.W. 4 Kausor Mondal while was returning home with his daughter from the house of her private tutor, he found near Hattala in front of the shop of Sarat Tewari, P.W. 11 that the appellants were assaulting the deceased.
(c) According to the P.W. 4 at that time he saw one red colour torchlight and one small transistor radio were lying there. 4
(d) The informant Badsha Alam Mondal after having heard the P.W. 4 Kausor Mondal, went to the house of the appellants to enquire about his father but they expressed their ignorance as to his whereabouts and told him that his father might have gone to their relatives house.
(e) The owner of the said sweetmeat shop in front of whose shop the deceased was allegedly assaulted by the appellants, was examined as P.W.
11.
(f) After their arrest, the appellants, were closely interrogated by the police, when the appellant Ujjal Mandal made a statement and led the police to recover the torch of the deceased from his house, which according to the said accused, was concealed there by another accused Gurupada Mandal.
(g) Similarly, accused Shanti Ghosal @ Seno made a statement to the police and led them to recover the transistor radio of the deceased from his house, which was concealed at the thatched roof of his kitchen.
5. The learned Counsel Mr. Joymalya Bagchi duly assisted by Mr. Deep Chaim Kabir vehemently repudiated the impugned order of conviction and submitted the prosecution has failed to prove its case. According to them the evidence the P.W. 1 Badsha Alam Mondal, P.W. 2 Kubadali Mondal and P.W. 5 Ibadali Mondal are purely hearsay in nature, since none of those witnesses had any direct knowledge about the fact that the deceased was last seen alive in the company of the appellants, when they were altercating and in course of such altercation the appellants assaulted him and all that they have deposed, they have heard from the P.W. 4 Kausor Mondal, thus such evidence ought to be kept 5 beyond the zone of consideration being purely inadmissible in evidence. He further submitted that in this case long before lodging of FIR, the inquest was held and the informant happened to be one of the witness to the inquest, still during inquest no allegation has been made against the present appellants although by that time, the P.W. 4 has informed him about everything. He further submitted that no missing diary was lodged and the unusual and inordinate delay in lodging First Information Report has never been explained, which is a serious lacuna in the prosecution case. He further contended the recovery of the articles, viz., one torchlight and one transistor radio set allegedly at the instance of some of the appellants have been illegally admitted into evidence with the aid of Section 27 of the Evidence Act, although the basic requirement of the said provision has never been followed by the Investigating Officer. According to the prosecution the deceased was found to be assaulted by the appellants at the early evening at a market place but none from there was examined. Mr. Bagchi submitted the theory of "last seen" in this case is of no significance as the dead body was recovered long after his missing. According to Mr. Bagchi this is a fit case where the appellants are entitled to an acquittal.
On the other hand, the learned Public Prosecutor supporting the impugned judgement, vehemently urged all the circumstances relied upon by the prosecution against the appellants being proved beyond all reasonable doubts the question of interference with the order of conviction does not at all arises. He further submitted the defence has not been able to demolish the prosecution evidence that the deceased was last found alive in the company of the appellants 6 and at that time he was being assaulted by them over the issue of non-payment of some loan and then he was taken to some unknown place and two days thereafter his dead body was discovered. According to him when the defence has not been able to explain as to what happened in between the time the deceased was found alive in the company of them and his dead body was recovered that leads to only inference the appellants are responsible for his death which was found to be homicidal in nature. Moreover, this is a case where taking recourse to Section 27 of the Evidence Act the police recovered some of the articles which were with the deceased when he was last seen alive and that was also a strong circumstance fixing the appellants in the commission of the crime. Accordingly, he submits that the order of conviction is to be sustained.
6. There is no controversy that the victim Samsul Haque Mondal suffered a homicidal death but now the question is whether the case has been proved against the appellants beyond all shadow of doubts and they are the real culprits?
7. Admittedly, the case of the prosecution is entirely based on circumstantial evidence. It is the cardinal principle of criminal jurisprudence the cases depending on circumstantial evidence, in the first instances the circumstances from which the conclusion of guilt is to be drawn should be fully established and all the facts so established should be consistent only with the hypothesis of guilt of the accused. Again, the circumstances should be of conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, the chain of 7 evidence must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
8. Now, in the light of aforesaid well-settled principle of criminal jurisprudence and in our efforts to answer the question raised before us by the parties, we find the impugned order of conviction and sentence is the culmination of a FIR lodged with the Patrasayer Police Station by the P.W. 1 Badsha Alam Mondal, the son of the victim Samsul Haque Mondal. According to P.W. 1 on September 10, 2005 in the evening when his father left home he took with him a torchlight and a transistor radio, and told them that he was going to attend a feast with the appellants at Hattala. Since his father did not return home till late night, the P.W. 1 went out for his search and came to learn from P.W. 4 Kausor Mondal that at about 8.30 p.m. his father was found at Hattala altercating with the appellants. He was also informed by the P.W. 4 that in course of such altercation his father was also assaulted by the appellants and his torch and transistor radio were found lying on the road. According to the said witness being accompanied by P.W. 4 he at once contacted the appellants but they expressed their ignorance as to the whereabouts of his father and gave evasive answers. It is also the evidence of the P.W. 1 on the next day at about 7 a.m. in the morning he again went to Hattala to search for his father, where he met P.W. 11 Sarat Tewari, who having his sweetmeat shop situated at Hattala, and came to learn from him on the previous evening in front of his shop some altercation took place between his father and the appellants over some money 8 matters and during such altercation his father was assaulted by the appellants and then they took him towards Sukhsayer Para.
Now, before entering into further details, we must say, we are unable to agree with the contention of the learned advocate of the appellants that the aforesaid evidence of P.W. 1 Badsha Alam Mondal is to be excluded from our consideration, as the same were purely hearsay in nature, for the simple reason the P.W. 4 Kausor Mondal in his evidence claimed to have stated those facts to the P.W. 1, the evidence of P.W. 1 Badsha Alam Mondal can very well be taken into consideration to corroborate the evidence of P.W. 4 in Court. However, no part of the evidence of the P.W. 1 Badsha Alam Mondal, can at all be admitted into evidence so far that relates to what he had heard from the P.W. 11 Sarat Tewari, who turned hostile during the trial and denied his knowledge about any assault upon the deceased by the appellants at Hattala.
On the other hand, we are very much confronting with a question and it is beyond our comprehension as to why a son, whose father is not traceable for two days, in spite of knowing, soon before his disappearance his father was last found alive with the appellants and at that time in course of exchange of hot words the appellants assaulted him and took him to some unknown destination and when the son met the appellants they gave evasive answers as regards to the whereabouts of his father, still not reported anything to the police and remain silent for two days. We are also surprised to note a very unnatural conduct of the P.W. 1, when after two days, i.e. on September 12, 2005 in the early morning, the dead body of his father was found floating in a 9 village tank and having noticed some injuries on the person of the deceased and suspecting some foul play behind his death, he claimed for postmortem still for the reasons best known to him made no complaint to the police against the appellants and the FIR was lodged nearly after 11 hours after the discovery of the dead body against the appellants just reproducing what he allegedly heard from the P.W. 4 Kausor Mondal about three days back as to how his father was assaulted by the appellants at Hattala followed by an altercation.
It is true that whole object of inquest is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death and it is no longer necessary to incorporate the details as to how and under what circumstances the person was done to death and by whom, still it is of considerable significance not to state to the police at the time of inquest, who may be responsible for causing his death, although such facts was known to the witness of inquest.
In our opinion, in the given facts and circumstances of the case non- reporting to the police anything against the appellants during inquest, coupled with the facts there was an inordinate and unusual delay in lodging the First Information Report to the police, more particularly when the facts reported to the police, admittedly were well within the knowledge of the informant, certainly shattered the prosecution case.
We cannot also overlook that one of the key witness of the prosecution P.W. 11, Sarat Tewari completely disowned the prosecution case that in front of his sweetmeat shop there was some altercation between the deceased 10 and the appellants and in course of such altercation the appellants assaulted the deceased and took him to some unknown destination and accordingly he was declared hostile.
Scanning the evidence of the prosecution witnesses, we find the place where the alleged altercation took place between the deceased and the appellants over some money matters and the deceased was assaulted by the appellant, is a busy public place "Hattala" and surrounded by many shops, still the prosecution has made no attempt to examine a single witness, in support of its case, which is one more significant circumstance goes against it.
9. Coming to the next question as regards to the recovery under Section 27 of the Evidence Act, of a torchlight and a transistor radio belonging to the deceased, which he carried with him while leaving home on the fateful evening, at the instance of the appellants Ujjal Mandal and Shanti Ghosal @ Seno from their respective houses, we find no statement pursuant to which they led the police to discover those articles was exhibited during the trial. Therefore, such recovery cannot be admitted into evidence under the coverage of the provision of Section 27 of the Evidence Act, but however the seizure of those articles at their instance is relevant as a conduct under Section 8 of the Evidence Act. Now, coming to the question as to the credibility of such seizure we find according to the P.W. 1 Badsha Ali Mondal after seizure, articles were packed together by a newspaper dated February 21, 2006 and according to the P.W. 3 Romjan Ali Mondal a label was affixed on the paper by which both the said articles were wrapped. The P.W. 14 Golam Ali is also one of the witness of seizure. According to the said witness 11 after the seizure of torch the police told that now a radio will be seized from the house of Shanti Ghosal. It was also admitted by him that his signature was not taken on the label. In view of above, we are not also inclined to place much reliance on the alleged seizure of torch and the transistor radio from the house of the appellants Ujjal Mandal and Shanti Ghosal.
10. So far as the rest of the witnesses are concerned after going through their evidence we find that none of them have any direct knowledge about the incident and are not very material for this case.
11. Now, having regards to the facts the prosecution case entirely depends on circumstantial evidence and it is the key circumstance that the victim Samsul Haque Mondal was last seen together with the appellants at a place called Hattala where he was found to be assaulted by the appellants over some loan dispute does not create confidence in our mind because of the reason that the only witness to such incident, the P.W. 4 Kausor Mondal although informed the P.W. 1 Badsha Ali Mondal, the son of the deceased about such incident on September 10, 2005 at about 10 p.m., while P.W. 1 was searching for his father as he did not return home till late night and when according to the P.W. 1 on the very next day, i.e. on September 11, 2005 at about 7.30 in the morning he was also again informed about such incident by the P.W. 11 Sarat Tewari, still nothing was reported to the police and top of everything even when in the early morning of September 12, 2005 after the dead body of the victim was found floating in a village tank and the P.W. 1 claimed to have noticed marks of injury on his person and although police was informed and inquest was held but 12 still nothing against the appellants were reported to the police and only at the late evening, i.e. after about 9/10 hours from the time of discovery of dead body, the FIR was lodged against the appellants on the basis of the information which the P.W. 1 received about two days back. Moreover, it is well settled that the circumstance of last seen together is a very weak piece of evidence and by itself is not enough to record any conviction in absence of any other corroborative materials. In this case the prosecution has not been able to bring out any other circumstance in support of its case and one of its key witness the P.W. 11 Sarat Tewari, the sweetmeat shop owner has also turned hostile during the trial. In this case only other circumstance the prosecution has brought on record was the recovery of some of the belongings of the deceased at the instance of appellants Ujjal Mandal and Shanti Ghosal @ Seno from their respective houses, since the seizure of those articles does not appear to be very authentic we are not also inclined to put much reliance on the same.
Thus, in our considered opinion the case against the appellants has not been proved beyond all reasonable doubt and accordingly the impugned order of conviction and sentence cannot be sustained. In the result the appeal stands allowed and the impugned order of conviction and sentence is set aside.
The appellants, who are now in jail be released forthwith, unless wanted in connection with any other case.
The office is directed to communicate this order to the Learned Court below and to send down the Lower Court Records forthwith.
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Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.
I agree
(J. N. Patel, C.J.) (Ashim Kumar Roy, J.)