Calcutta High Court (Appellete Side)
State Of West Bengal vs Avik Ghosh on 16 March, 2017
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J(1) IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:
The Hon'ble Justice Ashim Kumar Roy And The Hon'ble Justice Malay Marut Banerjee DEATH REFERENCE No.04 of 2015 State of West Bengal Vs. Avik Ghosh In Connection With CRA 418 of 2015 Avik Ghosh vs. State of West Bengal And CRA No. 361 of 2015 Somnath Tanti vs. State of West Bengal For the Appellant/Condemn Prisoner in CRA 418/2015 : Mr. Sudipto Moitra, Mr. Tapan Dutta Gupta, Ms. Sreyashee Biswas, Mr. Monoranjan Mahato For the appellant in CRA 361/2015 : Mr. Debasish Roy, Mrs. Sonali Das, Mr. Soumyajit Das Mahapatra.
For the State : Mr. Pawan Gupta.
Heard on : 23.09.2015, 24.09.2015, 04.12.2015,
07.12.2015, 01.03.2016, 02.03.2016,
04.03.2016, 12.12.2016, 16.02.2017
Judgment on : 16.03.2017
Ashim Kumar Roy, J:-
In a sessions trial held before the learned Additional Sessions Judge, 8th Court, Alipore, South 24 Parganas five accused namely, Avik Ghosh, Somnath Tanti, Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju and Sk. Israfil @ Suman were charged under two heads. One under Section 396/120B IPC and another under Section 302/120B IPC.
The said charges were framed on April 24, 2012 and read as follows, Firstly, That you, on or about the 27th day of September, 2010 at 21.00 hrs. within P.S. Thakurpukur agreed to commit an offence of dacoity of the Premises No. P-19A, Oxy Town, P.S. Thakurpukur and that act was done in pursuance of your agreement, and on the same date you committed dacoity and that in the commission of such dacoity, murders of Mousumi Ghosh and Parul Bala Ghosh by one or more of you and thereby committed an offence punishable under Section 396/120B of the Indian Penal Code and within the cognizance of the Court of Session, Secondly, That you, on or about the 27th day of September, 2010 at 21 hours within the P.S. Thakurpukur agreed to commit an offence of dacoity at the premises of P-19A Oxy Town, P.S. Thakurpukur and the same act was done in pursuance of your agreement and on the same date about the same time, within that P.S. - Thakurpukur, in the dist. of 24 Parganas (S) committed the murder by intentionally causing death of Mousumi Ghosh and Parul Bala Ghosh and thereby committed an offence punishable under Section 302/120B of the Indian Penal Code, and within the cognizance of the Court of Sessions.
2. However, after the argument was over and on May 19, 2015, the date fixed for delivery of the judgment, the learned court altered the charges against all the aforesaid accused and fresh charges were framed.
3. Following the alteration of charges, the accused Somnath Tanti, Safique Ahmed Khan @ Khokon, Sadab Parvez @ Raju and Sk. Israfil @ Suman were charged together under two heads, one under Section 396 IPC and another under Section 120B IPC and the same are read as follows, Firstly, that all of you on 27.09.2010 at about 21.00 hrs. at P/19A, Oxytown, P.S. - Thakurpukur, committed dacoity and that in the commission of such dacoity murder of Mousumi Ghosh and Parul Bala Ghosh was committed by one or more of your number and that you thereby committed an offence punishable under Section 396 of the Indian Penal Code and within the cognizance of this court.
Secondly, that all of you on the same date or before at the same place and time agreed with each other and with Avik Ghosh to do an illegal act to wit to commit dacoity at P/19A, Oxytown, P.S. - Thakurpukur and in the commission of such offence murdered Mousumi Ghosh and Parul Bala Ghosh and the said act is not legal or by illegal means done in pursuance of the agreement and that you thereby committed an offence punishable under Section 120B of IPC and within the cognizance of this court.
Simultaneously, accused Avik Ghosh was separately charged under two heads, one under Section 120B IPC and another under Sections 109/302 IPC. The charges against him are read as follows, Firstly, that you on 27.09.2010 at about 21.00 hrs or prior agreed with (1) Somnath Tanti, (2) Safique Ahmed Khan @ Khokon, (3) Sadab Parvez @ Raju and (4) Sk. Israfil @ Suman to do an illegal act to wit to commit dacoity at P/19A, Oxytown, P.S. - Thakurpukur i.e., in your own house and in the said commission of dacoity you have conspired with them to murder Mousumi Ghosh i.e. your wife and Parul Bala Ghosh, i.e. your maid-servant the said act is not legal or by illegal means done in pursuance of the agreement and that you thereby committed an offence punishable u/s 120B of IPC and within the cognizance of this court.
Secondly, that (1) Somnath Tanti, (2) Safique Ahmed Khan @ Khokon, (3) Sadab Parvez @ Raju and (4) Sk. Israfil @ Suman on the same date and time at P/19A, Oxytown, P.S. - Thakurpukur, i.e. your own house committed an offence of dacoity and in the said commission of dacoity murdered Mousumi Ghosh and Parul Bala Ghosh and that you abetted in the commission of the said offence of dacoity with murder which was committed in connection with abetment and that you abetted the said (1) Somnath Tanti, (2) Safique Ahmed Khan @ Khokan, (3) Sadab Parvez @ Raju and (4) Sk. Israfil @ Suman and you thereby committed an offence punishable u/s 109 read with Sec. 302 of IPC and which is within the cognizance of this court.
4. In the formal charge framed on April 24, 2012 and the relevant order sheet relating to that day it was recorded by the trial court .....
"substance of accusations are read over and explained to the accused persons to which they plead not guilty and claimed to be tried and their respective pleas of innocence are accepted".
5. On May 19, 2015 when charge was altered, the same was also read over and explained to the accused persons to which they plead not guilty and claimed to be tried.
At the same time the trial court called upon the prosecution for production of its witnesses for their further examination, however the prosecution was not inclined to re-examine those witnesses and adopted their evidence already on record. Similar stand was taken by the defence, they declined to cross-examine the witnesses and adopted earlier cross- examination on record.
6. Finally, in the said trial accused Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju and Sk. Israfil @ Suman were found not guilty and acquitted.
Whereas the accused Avik Ghosh was found guilty under Sections 302/109 IPC and Somnath Tanti under Section 396 IPC and both of them were found guilty under Sections 396/120B IPC.
Thereunder convict Avik Ghosh was sentenced to death for having committed the offence punishable under Sections 302/109 IPC and convict Somnath Tanti was sentenced to imprisonment for life and to pay fine with default clause.
Both of them for their conviction under Sections 396/120B IPC, sentenced to suffer imprisonment for life and to pay fine with default clause.
7. Following the imposition of sentence of death, the trial court referred the proceeding before this court for confirmation of sentence of death in terms of Section 366 CrPC, which gave rise to Death Reference No. 4 of 2015.
At the same time, the convict Avik Ghosh and Somnath Tanti challenged their conviction and sentence in CRA No. 418 of 2015 and CRA No. 361 of 2015.
However, the order of acquittal passed in favour of Safique Ahmed Khan @ Khokon, Sadab Parvez @ Raju and Sk. Israfil @ Suman on June 9, 2015 was never challenged either by the State or by the victim (as defined in section 2(w)(a), CrPC) or by the de facto complainant and the same has reached its finality.
8. Since the Death Reference and both the appeals are arising out of the self-same judgment and order, those are taken up for hearing together and are disposed of by this common judgment.
9. The prosecution case, which gave rise to these Criminal Appeals and the Death Reference, are as follows, One Swapan Kumar Chowdhury, who happens to be the brother-in- law of the convict Avik Ghosh and examined as PW/4 during the trial, on September 28, 2010 lodged a report with the Thakurpukur police station that on previous night at around 9 pm he got an information from his mother-in-law that Mousumi Ghosh (wife of Avik Ghosh) and their maid Parul Bala Ghosh were found killed inside their flat PIG A Oxytown by some unknown persons and the almirah of the house was ransacked and valuables were looted away.
The aforesaid information gave rise to FIR being Thakurpukur P.S. Case No. 476 of 2010 under Section 396 IPC. Later on September 28, 2010 Sankar Dutta, the father of the victim Mousumi Ghosh, gave a statement to the police alleging that soon after the marriage of her daughter with convict Avik Ghosh, she was both mentally and physically ill-treated for demand of more dowry. She was also mercilessly assaulted and driven out from her matrimonial home when the local boys rescued her and the incident was informed to the Mahila Samiti. Subsequently, the accused gave a written undertaking and took her back. It was further alleged that just one day before the incident, the convict Avik Ghosh telephoned him and the uncles of the victim in the morning that at next night Mousumi will be eliminated.
During investigation on November 28, 2010 accused Avik Ghosh, the husband of the victim, was arrested. Thereafter on November 30, 2010 accused Somnath Tanti, Sadab Parvez @ Raju, Safique Ahmed Khan @ Khokan and finally on December 1, 2010 accused Sk. Israfil @ Suman were arrested by the police.
According to the case of the prosecution, after arrest the accused persons were interrogated and pursuant to the statement and led by Somnath Tanti, the stolen cheque books of the accused Avik Ghosh were recovered. The stolen gold ornaments and the alleged weapon of assault then were recovered pursuant to the statement of accused Sadab Parvez and Safiq Ahmed Khan and being led by them.
10. Going through the impugned judgment and the depositions of the witnesses, we find the case of the prosecution is entirely based on circumstantial evidence and total 31 witnesses were examined to establish the charge.
However, defence examined none and it appears from the trend of cross-examination and answers to the questions put to the accused during their examination under section 313 CrPC, the defence case is one of innocence and false implications.
11. It be noted that both the victims suffered homicidal death has not been disputed from the side of the defence.
12. The learned counsel appearing on behalf of the appellants Avik Ghosh and Somnath Tanti vehemently contended,
a) The appellant has suffered serious prejudice because after initially facing trial on a charge framed on two heads on April 24, 2012 against him and four others under Section 396/120B IPC and under Section 302/120B IPC, at the stage of delivery of judgment the charge was altered on May 19, 2015, when while four other co-accused were charged under Section 396 IPC for committing dacoity and under Section 120B IPC simplicitor, the appellant was charged under Section 302 with the aid of Section 109 IPC and under Section 120B simplicitor. However, such alteration of charge was not in accordance with Sub-Section (3) of Section 216 CrPC and immediately after alteration of charge, the appellant and others were called upon to participate in the trial.
b) Although the co-accused were charged under Section 396 IPC but total number of accused charged thereunder were less than 5 and then again out of those four accused, three were finally acquitted.
c) Therefore, conviction of the appellant Avik Ghosh and Somnath Tanti under Section 396/120B IPC and conviction of Avik Ghosh under Section 302/109 IPC and Somnath Tanti under Section 396 IPC cannot be sustained.
d) The charge of conspiracy against the appellant based on the confessional statement of the co-accused Somnath, while he was in police custody and not admissible in evidence.
e) The charge of conspiracy must fail because three other co- accused Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju, Sk. Israfil @ Suman, who are also charged as a party to the conspiracy along with the appellant and another were all acquitted.
f) According to the prosecution, after receiving the news of murder of his daughter and the maid, the father of the deceased Mousumi (PW/1) lodged another complaint, in which he in detail disclosed how she was ill-treated during her stay with the accused Avik during her lifetime and stay with the accused Avik.
The said document was illegally exhibited during the trial inasmuch as before lodging of the same already there was a specific FIR registered against the incident of murder and police started investigation. The said complaint is completely inadmissible in evidence. Furthermore, the same does not bear any seal or stamp of the local police station and was manufactured and introduced to make out a case against the appellants.
g) Allegation, Avik used to torture the victim Mousumi physically came to light from the evidence of PW/1, PW/3, PW/4, PW/6, PW/9, PW/12 and PW/25, but their such evidence is omnibus in nature and no incident of torture has been specified.
h) PW/2, the mother of the deceased Mousumi, however, admitted that there was a good relation between the appellant and the victim.
i) It was also the case of the prosecution, a G.D. was lodged against the appellant Avik informing the police about his ill- treatment towards deceased Mousumi and Avik also submitted a written apology. However, both the G.D. and the written apology were never exhibited during the trial. Therefore, such facts cannot be taken into consideration in reaching to the conclusion of the guilt of the accused persons.
j) Although it was alleged that soon before her murder, many relatives of deceased Mousumi received threat calls over phone from the appellant Avik that she would be killed and it was quite natural that those relatives should caution the victim but there was no such claim and the conduct of those witnesses are not only quite un-natural but also suspicious.
k) It was claimed by PW/3, the brother of the victim Mousumi that the appellant Avik Ghosh was seen to handover a packet to the co-convict Somnath. Even if such evidence is accepted to be true that proves nothing far less involvement of the appellant in the commission of the offence.
l) Admittedly, the appellant Somnath Tanti was not known to Bappaditya Dutta (PW/3), the brother-in-law of the appellant Avik. The said accused Somnath Tanti was arrested on November 25, 2010 nearly two months after the incident (occurrence September 27, 2010) and T.I Parade was held on February 17, 2011 about three months after his arrest. Therefore, this T.I. Parade Identification, if any, is totally un- worthy of credence.
m) The attention of the court was drawn to the cross- examination of the Bappaditya Dutta (PW/3).
n) The recovery of the cheque books at the behest of the co- convict Somnath is not admissible in evidence since same was not in accordance with section 27 of the Evidence Act.
o) Seizure of bank record has not been proved in accordance with law.
p) Since call lists did not bear any seal or signature of the competent officer from whose custody the same was seized, nor he was being examined during the trial such seizure has no evidentiary value.
q) Although it is claimed by the Investigating Officer (PW/31) that the Material Ext.-21 Knife was seized pursuant to the statement of Safique Ahmed Khan @ Khokan (acquitted) and on being led by him, but the seizure list shows that same was seized at the behest of Sadab Parvez @ Raju (acquitted) and the said Safique Ahmed Khan @ Khokan.
r) The offending weapon, the knife was shown to the PW/24, post mortem Doctor, during his examination in court and he being cross-examined by the defence admitted that no blood was found either on the handle or on the blade and further admitted, even if the weapon was thoroughly tested then also in serological test, blood must be detected.
s) The offending knife was not sent for chemical examination report, as have been admitted by the Investigating Officer of the case (PW/31).
t) During the examination of the Autopsy Surgeon, offending knife was shown to him and in his cross-examination, the witness admitted if any victim was cut by throat, there will be excessive oozing out of blood and blood will also bulge out and the wearing apparels of such person would also be stained with blood. Therefore, it was absolutely impossible for the accused/assailants to leave the spot, which is a crowded one, after committing the crime, un-noticed by the members of the public.
u) The statements of the witnesses PW/1, PW/2, PW/4, PW/5 and PW/6 were recorded nearly 5 days after the alleged incident.
v) The allegations made by the witnesses PW/1, PW/2, PW/4 and PW/6 in their statements recorded under section 164 CrPC, were not there, in their statement recorded under section 161 CrPC.
w) Twice inquest was held, once by the police and then by the Magistrate. The PW/1 and his other relations were very much present at that time but they did not disclose that the victim and the appellant had a strain relation.
x) It is an admitted position that on the date of occurrence, the appellant was at his place of employment at Munger. y) There is no evidence that the victim was killed by the co- convict, therefore, the charge the appellant abetted all the four accused persons placed on the trial to commit the crime cannot be sustained and conviction under Sections 302/109 IPC is completely illegal.
z) Admittedly, the place of occurrence was surrounded by many houses but no attempt has been made to examine anyone of such neighbours.
aa) Conviction of Somnath Tanti under Section 396 IPC without any findings there were other accused, who took part in the crime, is absolutely illegal and cannot be sustained. bb) The case of the prosecution is not beyond all reasonable doubt and accordingly, he is entitled to acquittal.
13. The learned Public Prosecutor at the very outset of his submissions strenuously contended that investigation was done in a perfunctory way and because of the lapses of the Investigating Agency, some lacunaes have crept in. However, it is well settled that because of faulty investigation, the prosecution case cannot be thrown out. He submitted it is true three accused were acquitted, who were charged for committing the substantive offence of dacoity with murder and for entering into a conspiracy with the accused Avik Ghosh, the kingpin of the case. It is also true pursuant to the statement made to the police by those three accused and on being led by them the stolen gold ornaments and offending knife were recovered and State has not challenged their order of acquittal. But their acquittal has no consequences on the conviction of the appellants when there are sufficient evidence against them. He further submitted even assuming framing and alteration of charge is highly defective, still at this stage, defence cannot be permitted to complain because during the trial, not only the alteration of charge was not opposed but at the same time, the defence declined to once again cross-examine the witnesses, although opportunity was given to them by the trial court. He further contended the evidence of Bappaditya Dutta (PW/3) that he saw a few days before the occurrence the convict Avik Ghosh to handover a packet and he identified the accused Somnath both in T.I. Parade and in court and said "Somnath takata bujhe niyecho to". Then he added that the convict Somnath was also identified by the father of the victim (PW/1) as the person, who was working as mason with his father, at the house of the appellant Avik. He was also identified by the mother of the victim as the person who saw him in one day at around 11.30 p.m. at the matrimonial home of his deceased daughter.
Lastly, he contended these are sufficient circumstances to bring home charges against the appellants. However, he did not address this court on the question of death sentence.
14. The learned counsel appearing on behalf of the de facto complainant adopted the submissions made by the learned Public Prosecutor and only added that the case against the appellants has been proved beyond shadow of doubt, although there may be some lapses in investigation here and there.
15. Heard the learned counsel appearing on behalf of the parties. Considered their respective submissions. Perused the impugned judgment, the depositions of the witnesses and the materials on record.
16. This is a case based entirely on circumstantial evidence. Both the victims suffered homicidal death has not been disputed from the side of the defence. The circumstances relied upon by the prosecution against the appellants to prove the charges are as follows, Firstly, during her life time victim Mousumi was ill-treated by her husband at her matrimonial home as deposed by the witnesses.
Secondly, on the date of occurrence in the morning some of the witnesses received threat calls from the convict Avik Ghosh that her daughter would be eliminated. According to PW/3 Bappaditya Dutta, about 10 days before, he found the appellant Avik to handover to the convict Somnath Tanti saying "Somnath takata bujhe niyecho to".
Thirdly, during police custody, accused Somnath confessed his guilt of hatching up conspiracy with the accused Avik Ghosh and other co- accused to murder the deceased Mousumi and the maid.
Fourthly, the bank papers of the accused Avik Ghosh were recovered by the police at the behest of Somnath Tanti.
Fifthly, According to the autopsy surgeon both the victims suffered homicidal death.
So far as the first circumstance is concerned, that the victim was tortured regularly during her lifetime at her matrimonial home, it first be noted no charge was framed for the offence punishable under Section 498A IPC. The complaint, which was allegedly lodged by the father of the deceased, was illegally marked as Ext.-1 although such complaint was made to the police after the registration of the regular FIR of the case and commencement of investigation being hit by Sub-Section (1) of Section 162 CrPC. The witnesses, who deposed about the ill-treatment meted out to the victim by the appellant Avik Ghosh made no definite statement and it is true the same were omnibus in nature. It was claimed during the trial over the incident of ill-treatment G.D was lodged but same were not exhibited during the trial. It was further claimed that Avik in writing tendered his apology and assured such ill-treatment will never be repeated but same was not exhibited during the trial. According to the PW/1 over such ill-treatment complaint was lodged to the local Mahila Samiti but none was examined during the trial. Therefore, not only because no charge under Section 498A IPC was framed but also for the reason as above, we are not inclined to put any reliance on the same.
Coming to the next circumstance, that PW/3 claimed to have found convict Avik Ghosh to handover a packet to convict Somnath Tanti about 10 days before the alleged incident and while handing over the said packet, the witness allegedly asked convict "Somnath takata bujhe niyecho to", we find, this witness disclosed the aforesaid facts to the police on October 2, 2010, (date of occurrence September 27, 2010) after about five days and then prayer was made for recording of his statement under Section 164 CrPC on December 9, 2010. Somnath Tanti was arrested on November 25, 2011 and the T.I. Parade of the said accused was held on February 17, 2011. Not only that there is inordinate delay of arresting the accused Somnath Tanti even after recording of statement of Bappaditya Dutta (PW/3) by the police and such delay has never been explained, the T.I. Parade of the accused was held nearly 3 months after his arrest, undoubtedly, same is fatal to the prosecution case. In this regard, reliance be placed on the decision of the Apex Court in the case of Soni vs. State of Uttar Pradesh reported in (1982) 3 SCC 368; Shabad Pulla Reddy and Ors. vs. State of AP reported in (1997) 8 SCC 495.
Furthermore, on the question of identification Bappaditya Dutta (PW/3) was cross-examined at length and from his cross-examination following facts were enlightened (see page-173 of the paper book filed in the High Court) "I cannot remember whether I was interrogated by the I.O. I never gave any description to the police about the person whom I saw on Behala Chowrashta talking with my brother-in-law. I did not also give description of the wearing apparel of the said person to the police. I also did not give description of the wearing apparel of the said person before the Magistrate. I do not know what was in the packet, that was handed over by my brother-in-law, accused Avik to that person on Behala Chowrashta. I identified the said person as accused Somnath in the jail before the Magistrate, but I cannot remember the date. I have deposed before this court that I have witnessed the said accused person Somnath on 17th September as I had remembered the same. I have also stated before the Magistrate that I have witnessed the accused Somnath on 17th September at Behala Chowrashta.
I cannot remember the time or date when I stated before the Magistrate that I witnessed the accused Somnath on 17th September."
The PW/1, father of the victim Mousumi also claimed that he saw the accused Somnath Tanti working in the house of convict Avik Ghosh as mason and helping his father. We find that the investigating officer (PW/31) of the case Joydip Banerjee in his cross-examination categorically admitted that during investigation it revealed that Taraknath Tanti, father of accused Somnath Tanti used to work in the house of the accused Avik Ghosh as mason but accused Somnath did not work as mason there. It is also not known whether accused Somnath used to work as labour with his father.
In this regard, the cross-examination of PW/1 is also quite relevant, which is quoted below (see page-146 of the paper book filed in the High Court), "I can't state exactly for how many times, I had attended my son-in-law's house. Approximately for 20 times, I had attended my son-in-law's house. This assessment is by guess.
There was Construction work at my son-in-law's house as I noted. There was construction of the first floor of the house of my son- in-law. Some persons were engaged for that purpose. I can't state their exact figure. I can't state the names of all those persons. One of them was accd. Somnath Tanti, I could ascertain that.
I and the said accd. had no communication in between us at the time of his performing masonary work. I could identify him at the P.S. on his apprehension in connection with this case.
I could come to know his name from the police as Somnath Tanti. When I had given statement to the police I didn't conceal anything. I had stated to the police all that. I could recollect at that time.
I hadn't stated to the police any point over the issue of Construction work in the house of the accd. Avik Ghosh.
I hadn't stated to the police that some persons were working in my son-in-law's house for Construction work on out of those workers I could only identify accd. Somnath Tanti."
Now, it is evident that the witness PW/1 could identify him at the police station after his apprehension in connection with this case and came to learn his name from the police and he did not state to the police any point over the issue of construction work in the house of accused Avik Ghosh. He did not state to the police that some persons were working in his son-in- law's house for construction work and out of those workers he could only identify accused Somnath Tanti.
Having regard to the above facts and the state of evidence, we are of the opinion, the above circumstance is not free of reasonable doubt and accordingly, we exclude the same from our consideration.
17. This is a case, where after alteration of charge the convict Somnath Tanti and three others viz., Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju and Sk. Israfil @ Suman were charged under Section 396 IPC simplicitor for having committed dacoity with murder of two ladies. According to the provisions of Section 391 IPC read with Section 396 IPC, for constituting an offence of dacoity with murder, involvement of minimum five persons is required. However, in this case, not only total four persons were charged but at the conclusion of the trial, all the three other accused viz., Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju and Sk. Israfil @ Suman were acquitted, except Somnath Tanti. It be noted, there is no allegation nor any evidence forthcoming that any other persons though not placed on trial were concerned with the crime. Therefore, his conviction under Section 396 IPC cannot be sustained.
Reliance may be placed in the case of Manmeet Singh @ Goldie vs. State of Punjab reported in (2015) 7 SCC 167; Raj Kumar @ Raju vs. State of Uttaranchal reported in (2008) 3 SCC (Cri) 888.
18. The convict Avik Ghosh was simultaneously charged under Section 120B IPC for entering into a conspiracy with the accused Somnath Tanti, Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju and Sk. Israfil @ Suman for committing dacoity at his own house and to murder his wife and the maid servant as also under Section 109 read with Section 302 IPC with those four accused persons for abetting commission of dacoity in his own house and murdering his wife Mousumi Ghosh and maid Parul Bala Ghosh. However, in this case the accused Somnath Tanti was alone convicted under Section 396 IPC and we have noted the reasons as to why his conviction is liable to fail.
None of the co-accused Somnath Tanti, Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju and Sk. Israfil @ Suman was convicted under Section 302 IPC.
However, Avik Ghosh was convicted under Sections 302/109 IPC but none of the co-accused, whom he allegedly abetted to commit murder of his wife Mousumi Ghosh and the maid Parul Bala Ghosh was found to be guilty for committing such murder. There is no other evidence forthcoming which would connect him with the murder. Therefore, his conviction under Sections 302/109 IPC cannot also be sustained and is liable to fail.
Both the accused Somnath Tanti and Avik Ghosh were found guilty under Section 120B IPC by the trial court. Somnath Tanti was charged for entering into conspiracy with three other co-accused Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju and Sk. Israfil @ Suman and Avik Ghosh to commit dacoity at P 19A, Oxytown, Police Station - Thakurpukur (residential house of Avik Ghosh) and in the commission of such offence, to murder Mousumi Ghosh and Parul Bala Ghosh. The said accused Somnath Tanti was not convicted under Section 302 IPC and his conviction under Section 396 IPC has been set aside by this court.
Similarly, accused Avik Ghosh was charged under Section 120B IPC for entering into conspiracy with Somnath Tanti and three other co-accused Safique Ahmed Khan @ Khokan, Sadab Parvez @ Raju and Sk. Israfil @ Suman for committing dacoity at his house at P 19A, Oxytown, Police Station - Thakurpukur and to murder his wife Mousumi Ghosh and maid servant Parul Bala Ghosh. But he was not found guilty for the offence under Section 396 IPC and also no evidence was found which may link him with the commission of offence of murder.
Accordingly, aforesaid charge under Section 120B IPC against both of them is also liable to be set aside.
19. In this case, the alleged offending weapon, a knife, was seized pursuant to the statement of Sadab Parvez @ Raju and Safique Ahmed Khan @ Khokan (seizure list, Ext.-21). The said knife was not sent to the FSL for determining whether the same contains any blood. The knife was shown to the Autopsy Surgeon (PW/24), Dr. Bikash Mukherjee during the trial who admitted the injury found can be caused by that weapon. At the same time, he also admitted that even if the said offending weapon was thoroughly cleaned and washed, still in serological examination stress of blood can very well be detected. Similarly, the stolen gold ornaments (Ext.-14) of deceased Mousumi Ghosh was recovered pursuant to the statement and on being led by Sadab Parvez @ Raju and Safique Ahmed Khan @ Khokan. However, both the accused Sadab Parvez @ Raju and Safique Ahmed Khan @ Khokan were acquitted in the trial and against their acquittal, neither the State nor the victim (2wa) has preferred any appeal till date.
We find, the learned Trial Judge also relied on the alleged confessional statement of the convict Somnath Tanti allegedly made while in police custody, although the same is inadmissible in evidence according to the provisions of Section 25 of the Evidence Act.
20. In view of above, the conviction of the appellant Somnath Tanti under Section 396 IPC and conviction of the appellant Avik Ghosh under Sections 302/109 IPC and their conviction under Section 120B IPC is set aside. The sentence imposed against them for their conviction as above is also set aside.
Accordingly, the Death Reference No. 4 of 2015 stand rejected and both the appeals CRA No.418 of 2015 and CRA No.361 of 2015 stand allowed.
The appellants, who are now in custody, shall at once be released, if not detained there or wanted in connection with any other case.
The office is directed to take necessary steps.
Urgent xerox certified copy of this order be given to parties, if applied for, as early as possible.
(Ashim Kumar Roy, J.) I agree.
(Malay Marut Banerjee, J.)