Calcutta High Court (Appellete Side)
Dipak Kumar Das ... Accused/ vs The State on 20 May, 2011
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present :
THE HON'BLE MR. JUSTICE GIRISH CHANDRA GUPTA
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
CRA NO. 245 of 2001
Dipak Kumar Das ... Accused/Appellant
Vs
The State ... Respondent
For the Appellant : Mr. Subhrajit Basu led by Mr. Abhijit Basu
For the State : Ms. Minoti Gomes
Heard on : 15.3.11, 13.4.11 & 18.4.2011
Judgment on : 20.5.2011
RAGHUNATH RAY, J. :
This appeal is directed against the judgment of conviction and sentence passed by the learned Sessions Judge, Murshidabad in Sessions Trial No. 5 of February, 2001 corresponding to Sessions Serial No. 172 of 2000 arising out of Lalgola P.S. Case No. 6/94 dated 21.1.94 under Section 302/201 IPC. By the said judgment impugned the appellant Dipak Kumar Das was convicted under Section 302 IPC and sentenced to suffer R.I. for life thereunder. He was, however, found not guilty of the offence under Section 201 IPC. The prosecution case, in resume, as unfolded in the FIR is as under.
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2. Nani Gopal Das, aged 50 yrs. was allegedly strangulated to death by his eldest son Dipak Kumar Das in his house in the intervening night of 20/21.1.94. He was found dead by his wife in his house at about 4.00 A.M. on 21.1.94. In response to her hue and cry, the para people including her eldest son, the appellant reached there. The mother of the appellant hurled accusation of patricide against her eldest son, the appellant. The deceased refused to allot any share of his properties in favour of his eldest son. It is alleged inter alia that the appellant incurred his father's displeasure since he married a girl of his choice against the will of his father. The victim was also threatened by the appellant on 19.1.94 since he apprehended deprivation of his share in the paternal properties. The deceased contemplated to sell his properties of Jagannathpur village and to settle at Pilki village by purchasing properties there. A biananama was also executed to that effect. The appellant was interrogated by the villagers present there. He confessed his guilt that he throttled his father to death and poured poison to cause disappearance of evidence. He was also slightly assaulted by some of the angry villagers.
3. An FIR was lodged by Sri Bikash Das, the younger son of the deceased on the aforementioned allegation. Lalgola P.S. Case No. 6/94 dated 21.1.94 under Section 302/201 IPC was registered against the appellant for investigation. Inquest of the deceased was also held on 21.1.94 at 9.15 A.M. in connection with the Lalgola U.D. Case No. 1/94 dated 21.1.94 by Rabindranath Chakraborty, S.I. of Police, PW 13 in the presence of several witnesses including the defacto complainant. The postmortem of Nanigopal Das since deceased was held by Dr. N. K. Mondal, PW 11, the then M.O., Lalbagh Sub-division Hospital on 21.1.94. The case was endorsed to Rabindranath Chakraborty, the S.I. of Police for investigation. In course of investigation, bedding materials were seized from the P.O. in the presence of the witnesses. The I.O. also examined several witnesses and recorded their statement under Section 161 CrPC. The accused Dipak Das was arrested on the spot on the very date of incident and one fire arm was also recovered from him and a separate case was further started against him being =3= P.S. Case No. 794 of 1994. On completion of investigation, the charge sheet under Section 302/201 IPC was submitted against the appellant.
4. The case was committed to the Court of Sessions by the learned S.D.J.M., Lalgola. The learned trial judge framed charge under Section 302/201 IPC against the appellant and he was put on trial to answer the following charge:
"Firstly - That you, on or about the 21st day of January, 1994, at about 1.30 a.m. at Jagannathpur, P.S. Lalgola, Dist. Murshidabad, did commit murder by intentionally causing the death of Nanigopal Das.
and thereby committed an offence punishable under Section 302 of the Indian Penal Code, and within the cognizance of the Court of Session.
Secondly - That you, on or about the same day and at the same place, knowing that certain offence, to wit, murder by intentionally causing the death of Nanigopal Das by throttling, which is punishable with death, or imprisonment for life, has been committed, to wit, administering poison in the mouth of Nanigopal Das after his death by throttling, with the intention of disappearance of evidence, with the intention of severing the offender from legal punishment and thereby committed an offence punishable under Section 201 of the Indian Penal Code, and within the cognizance of the Court of Session."
5. During trial the prosecution examined as many as 13 witnesses including the postmortem doctor and the I.O. and also relied upon several documents (Ext. 1-series, 2 & 3) in order to prove the guilt of the appellant. The informant being the son of the deceased and his mother, Saudamini Das have been examined as PW 1 and 5 respectively. Bipad Bhajan Das, PW 2, the scribe, who wrote the complaint as per instruction of PW 1 also proved the written complaint (Ext. 1/1). Dipti Das, PW 4 worked as a day-labourer in the field of Gajol Ghosh, PW 7. Both of them were, however, declared hostile. They were also cross-examined by the prosecution. However, their cross-examination on =4= behalf of the defence was declined. Bani Das and Swadesh Das were tendered for cross-examination as PW 6 and PW 10 respectively. Their cross-examination was also declined by the defence. Kalachand Ghosh, PW 8 and Bidhan Chandra Das, PW 9 are the co-villagers who visited the house of the deceased. They have not supported the case of the prosecution but none of them was declared hostile by the prosecution. Dr. N. K. Mondal who conducted the postmortem on the dead body of the deceased and Basudev Das, constable No. 1974 who carried the dead body before the doctor for postmortem examination as per the direction of the I.O. were examined as PWs 11 and 12 respectively. Rabindranath Chakraborty, the I.O. has been examined and cross-examined as PW 13.
6. The case of the defence, as is gathered from the trend of cross- examination and accused's examination under Section 313 CrPC is that of innocence, denial and false implication. None has, however, been examined from the side of the defence to substantiate its plea of innocence, denial and false implication.
7. Upon consideration of the entire evidence both oral and documentary coupled with relevant surrounding circumstances on record the learned trial court convicted the appellant under Section 302 IPC and he was sentenced to suffer R.I. for life while he was found not guilty of the charge under Section 201 IPC.
8. Feeling aggrieved the appellant preferred this appeal challenging the legality/validity of the judgment impugned. The delay in filing appeal was condoned vide this court's order dated 22.6.2001. After condonation of delay, passed in CRAN No. 575 of 2001, the appeal was admitted on 22.6.2001.
9. Appearing for the sole appellant, Mr. Basu assailed the judgment impugned mainly on the ground that the learned trial court has committed gross illegality in placing reliance upon purported extra-judicial confession made by the =5= appellant before the relations of the appellant and co-villagers. It is submitted by him that the proper appreciation of evidence and materials on record would indicate that extra-judicial confession in question was extracted by the interested villagers as also close relations of the victim in order to implicate him falsely in this case. Such extra-judicial confession was made in the presence of Police and as such because of lack of voluntariness on the part of the appellant, the same is not an admissible piece of evidence. It is forcefully argued by him that no admissible evidence has been brought on record to prove the alleged commission of patricide against the appellant. It is further argued by him that even though inquest of the victim was held after the lodgement of FIR, the relevant P.S. case No. had not been incorporated therein. It simply refers to Lalgola P.S. U.D. case no. 194 dated 21.1.94. According to him, this anomaly indicates that the FIR was antedated. It is also submitted by him that the FIR being the basic document which sets the criminal law into motion, the entire prosecution story should be disbelieved since there is every possibility of the appellant being falsely implicated after much deliberation. Thus, the order of conviction and sentence is patently illegal and liable to be set aside.
10. Per contra it is argued by Ms. Gomes learned Counsel for the State that it is significant to note that the appellant tried to escape from the scene of occurrence when the villagers started arriving there. It is further argued that the appellant also did not raise any voice of protest when his mother raised a serious allegation of patricide against him immediately after the incident when the appellant came to his father's house. These are circumstances which do not indicate his innocence. It is next argued by her that extra-judicial confession is a valid piece of evidence and the appellant confessed his guilt before the independent villagers prior to arrival of the Police.
11. True, he was slightly assaulted by the angry villagers present at the scene of occurrence. But it is available from the materials on record that on interrogation when the appellant confessed his guilt before the villagers, some of =6= them expressed resentment and, thereafter, the question of assault arose. Therefore, she argues that it cannot be said in any manner that because of such assault, he confessed his guilt. The actual state of affairs was otherwise. The appellant confessed his guilt voluntarily. There was no use of force by any of the villagers for such confession. The extra-judicial confession which was a voluntary one cannot be discarded on the ground that the appellant was slightly assaulted afterwards. The evidence on record also does not indicate that the appellant confessed his guilt after arrival of the Police. In this context, she has referred to a ruling of the Apex Court reported in 1971 (3) SCC 950 [Bharat vs. State of U.P.] wherein it is ruled that confessions can be acted upon if the court is satisfied that they are voluntary and they are true. Furthermore, it is the most patent piece of evidence against the maker. The learned Trial Court has, therefore, rightly passed the order of conviction after placing much reliance on extra-judicial confession. It is, therefore, submitted by her that the learned trial judge is absolutely justified in convicting the appellant under Section 302 IPC and as such findings of guilt against the appellant should, therefore, be maintained by this appellate court.
12. Admittedly, the prosecution case rests on extra-judicial confession and the learned trial judge has also stated so in course of his evaluation of materials on record. It is observed by him that the instant case does not stand on witnesses of the occurrence and it is also not a case of circumstantial evidence. Accordingly, the entire case solely rests upon the confession of the accused made extra judicially the witnesses (page 4 of the judgment).
13. It is well settled that it is an imperative duty of the court to satisfy judicial conscience prior to placing any reliance upon extra-judicial confession made by the accused. The governing principles relating to evidentiary value of extra-judicial confession are that such confession must be made voluntarily and must reflect true state of affairs. It is not in dispute that the confession made by a person is irrelevant in criminal proceedings if making of such confession =7= appears to the court to have been caused by any inducement, threat or promise. It, therefore, follows that a confession would be voluntary and such confession must be made by the accused in a fit state of mind. It is also an admitted position that whether or not the confession was voluntary, would depend upon the facts and circumstances of each case. It is to be borne in mind that if on a meticulous analysis of the surrounding evidence and circumstances on record it appears that there exists any reasonable ground to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the same even if it is admissible in evidence. It is also equally true that a free and voluntary confession deserves the highest credit because it is presumed to flow from the highest sense of guilt.
14. Keeping in view the aforementioned governing principles, it can safely be said that such confession can be relied on and conviction can also be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that they may have a motive of attributing an untruthful statement to the accused.
15. It would, therefore, be convenient to assess the ocular evidence of PW 1, the FIR maker, Bikash Ch. Das, the youngest son of the deceased together with that of PW 3, Saudamini Das, the widow of the deceased, PW 5, Bipad Bhajan Das, PW 2, a co-villager who were present at the P.O. immediately after the incident and before whom extra-judicial confession was purportedly made in presence of some other witnesses.
16. Turning to the basic document which sets the criminal law in motion, it appears that in its concluding portion the FIR, (Ext. 1) speaks about extra-judicial confession of the appellant and the same may be reproduced as under:
=8= "...Then my elder brother tried to flee away, but the people present there caught hold my elder brother and questioned him. On interrogation my elder brother confessed his guilt in presence of all and said- In the night at 1-30 I have murdered my father by throttling after sitting upon the chest of my father and to abolish evidence I have applied poison on the mouth of my father. At that moment excited villagers assaulted to some extent to my elder brother... "
17. Strangely enough, the informant himself as PW 1 made no whisper about such extra-judicial confession within the four corners of his examination- in-chief. At the outset of his cross-examination, however, it is stated by him that he did not see the incident. His elder brother confessed that he murdered his father. They had also suspicion against their elder brother. The defence suggestion that his elder brother never stated that he had murdered his father is denied by him. It is, however, not clear to us as to why he did not corroborate the contents of FIR in his examination-in-chief before the court.
18. Coming to the testimony of Bipad Bhajan Das, PW 2, the scribe of the FIR, it is found that he testifies before the court that accused Dipak confessed before the villagers in presence of others that he murdered his father by throttling. It is also elicited from his cross-examination that the Police came to the spot and prepared the inquest report on the dead body of Nanigopal Das and he put his signature on the inquest report (Ext 2). It transpires from his cross-examination that he had been to the house of the deceased at about 5.00 A.M. and at that material point of time, he found about 200 persons there and the police came there at about 8.30 A.M. He did not go to the police station. He has, however, denied the defence suggestion that the accused confessed before the Police that he alone murdered his father. His evidence taken as a whole, however, does not inspire confidence because it does not throw any light as to whether such confession was made before or after the arrival of the police.
19. PW 3, however, deposes that after his arrival on the spot early morning, he found some persons there. After sometime, he found some 4/5 boys =9= who dragged the appellant to the spot after assault. They challenged the accused as to why he did commit this crime. The deponent, however, asked them not to assault the accused and advised them to wait for the police. He further advised them to keep the appellant in their custody so that he could not flee away and then he left the place.
20. Saudamini Das, PW 5, the widow testifies that after the discovery of her husband's dead body when his eldest son Dipak came to their house, she asked him as to why he killed his father. According to the deponent, instead of replying to his query, he fled away from the place. Thereafter, some village people apprehended him and brought him near the dead body of this father. 4/5 persons went to the Police Station to inform the Police about the incident. Subsequently the police came and arrested his son Dipak. The most important part of his testimony on the veracity of extra-judicial confession is as under:
"...on enquiry by police my son confessed that he had done the mischief. My son Dipak told the police that his father was sleeping when he came to the house. He tied the eye of his father and throttled to death. "
21. It, however, reveals from her cross-examination that they were annoyed when their son married without their consent. Since marriage, his son used to live in a separate place. She has also denied the defence suggestion that his son confessed before the Police that he murdered his father. Turning to the testimony of hostile witnesses, it is found that Dipti Das works as a day-labourer under PW 7. This deponent, however, retracts from his earlier statements made before the I.O. to the effect that while he along with Swadesh Das and Dipak and others was working as day-labourers in the house of Gajol Ghosh, Dipak , the appellant told that his father was going to leave the village in order to live at Pilki village after disposing of the property. It is also denied by him that the appellant told them that within two days he would murder his father so that he could not move to village Pilki. It has been suggested to him from the side of the prosecution that he suppressed the truth as the accused Dipak was his friend = 10 = and they worked together in others' property. Needless to say that such suggestion was denied by him.
22. Similarly, Gajol Ghosh, PW 7, in whose field, PW 4 was working, did not support the prosecution version. This hostile witness in course of the cross- examination by the prosecution deposes that he never gave any statement to the police that the appellant would murder his father within two days so that he could not go to Pilki village. It is also denied by him that he stated to the Police that Dipak was brought to the house of Nanigopal and he confessed in the presence of others that he murdered his father by throttling. It, however, appears from the evidence of I.O. that both Dipti Das, PW 4 and Gajol Ghosh, PW 7 were examined under Section 161 CrPC and both of them told before him that while Dipti was working in the field of Gajol, the appellant told them that he would kill his father since he wanted to leave their village for residing at Pilki after disposing of the property. They also denied that they told the I.O. that the appellant confessed in the presence of the villagers that he murdered his father by throttling.
23. Be that as it may, the fact remains that both these witnesses did not support the prosecution case for the reasons best known to them. Since they have resiled from their earlier statements made before the I.O. in course of investigation, the credibility of these witnesses has seriously been eroded. Therefore, their evidence is of no use to the prosecution.
24. At any rate, even though the hostile witnesses have stated before the I.O. during their examination under Section 161 CrPC that the appellant confessed his guilt, they have denied the same while deposing before the court as already indicated earlier. Even PWs 2, 3 and 5 have given a different version about the manner and mode of making the extra-judicial confession. Bipad Bhajan Das, PW 2 stated that accused Dipak confessed before the Police in the presence of others that he murdered his father by throttling. On the other hand, Brahma Nath Das, PW 3 has not stated anything about the appellant's = 11 = confession either before the villagers or before the Police. He has, however, stated that the accused was assaulted and dragged by 4/5 boys and he simply advised those boys to wait for the arrival of Police and till that time the accused should remain in their custody so that he could not manage to escape. Curiously enough, this retired school teacher, thereafter, left the place and as per his testimony, after the arrival of Police, he was again called on there. He is, however, silent on the material point, as to whether the appellant confessed his guilt before the villagers after arrival of the police, even though he was again called to the P.O. after arrival of the police. As ready discussed earlier, PW 5, the mother of the appellant, however, stated that his son confessed that he did the mischief pursuant to a query made by the police. It is importantly important to note that as per her testimony the police at first arrested his son and, thereafter, they enquired about the incident when his eldest son, the appellant confessed his guilt and also divulged the relevant and necessary particulars about the commission of such a ghastly crime.
25. In this context, it is pertinent to mention that the FIR (Ext. 1) lodged by PW 1 tends to show that the appellant confessed the guilt before the villagers prior to the arrival of Police. As already discussed earlier, the informant, however, himself as PW 1 made no whisper about confession of guilt by his brother within the four corners of examination-in-chief even though it was elicited from his cross-examination that the appellant confessed that he murdered his father. But the moot question as to whether such confession was made before the villagers or the police could not be decided conclusively. The FIR speaks about the assault by the excited villagers. It is, however, deducible only from the recitals of the FIR itself that as soon as such extra-judicial confession came to the light, a few villagers got excited because of such painful disclosure of patricide by the appellant. At any rate, no cogent and consistent version either from the mother and brother of the appellant or from the independent co-villagers is available to indicate that such extra-judicial confession was made by the appellant out of remorse or sense of guilt emanating = 12 = from the core of his heart. That apart, the evidence on record also speaks about assault upon the appellant as also the presence of police when such confession was extracted.
26. The learned trial judge was of the view that there was nothing to show that the accused was brutally assaulted or manhandled and he was thus compelled to make confession. According to him, the forwarding report did not disclose that the accused sustained any injury on his person. He further proceeds to add that even if the witness asked the boys not to assault the appellant, such asking does not necessarily imply that he was assaulted by the public or the boys who brought the accused. It is also observed by him further inter alia that the accused himself did not state anything during examination under Section 313 CrPC indicating the manner of his assault which compelled him to make the extra-judicial confession. We are afraid that the learned trial judge is not factually correct for the simple reason that he did not take into consideration the testimony of PW 3 in its entirety. If the evidence of PW 3 is analysed in its proper perspective, it would be evident that the deponent found that "some 4/5 boys were dragging the accused to the spot after assault". The deponent further testifies that the boys challenged the accused as to why he did the crime. It is quite evident from the testimony of PW 7 that, thereafter, he asked the boys not to assault the accused and advised them to wait for the arrival of police and to keep the accused in their custody till the arrival of the police. The learned trial judge has also ignored the recitals of the FIR wherein it was stated unequivocally that the appellant was assaulted to some extent by the villagers. Even if the appellant's allegation in his examination under Section 313 CrPC made to the effect that he confessed due to torture by the police and his hand was fractured is excluded from our consideration, there are overwhelming materials on record to establish the factum of assault upon the appellant by the local villagers for extracting extra-judicial confession from him. In such a situation, we are unable to concur with the finding of the learned trial judge that = 13 = the confessional statement is not hit under Section 25 of the Evidence Act and the same is admissible.
27. On the question as to whether the victim was throttled to death as contended by the prosecution, we are to asses the medical evidence tendered by Dr. N. K. Mondal, the then medical officer of Lalbagh Medical Hospital. He deposed as PW 11 that he found the evidence of throttling by fingers on throat below sub- medibular area as echymosis and haemorrhagic spots also there. He further found that the right side of hyde bone was fractured. The cause of death in his opinion was due to cardiac respiratory failure in a case of throttling (hyde bone fractured) which is homicidal in nature. Such evidence is, however, not subjected to cross-examination. Only one question was put to him and he replied to the same by saying that he could not get any smell of poisoning in the mouth. Since the entire medical evidence including cause of death remains unchallenged by the defence, there is no impediment in holding that the victim died because of throttling.
28. There is no doubt that the motive of patricide is to some extent on the fore. The wife and the youngest son of the victim have corroborated each other by saying that in view of strained relationship between the deceased and the appellant, the former had a contemplation to move to a distant village after disposing of the properties of Jagannathpur village and a biananama was also executed for purchasing properties at Pilki so that the deceased along with his wife and the youngest son and his family members could shift their residence there. The appellant apprehended that he was likely to be deprived of his share in his father's properties. It was perhaps in his mind that after demise of his father, the ancestral properties would devolve upon his mother and two brothers i.e. the deceased and the informant in equal share. It is also astonishing to note that even though the bianamana was executed, the police did not seize the purported biananama and, in fact, nothing in the shape of documentary evidence has been produced before the court to indicate that the deceased was actually = 14 = making an endeavour to move to a distant village by selling his properties because of threat perception from his eldest son.
29. True, when the appellant was charged with the offence of patricide by his mother immediately after the murder of his father, he tried to flee away without raising any protest against such serious charge. He was also arrested by the police from the P.O. immediately after the incident. Despite these incriminating circumstances, the fact remains that he was forced to confess about the alleged guilt of perpetrating murder of his father. In the absence of sufficiently strong other corroborative materials on record, it is difficult for this court to accept the extra-judicial confession since its voluntary nature has not been proved to the satisfaction of this court. In this context, we would refer to the ruling of the Apex Court reported in 1971 (3) SCC 950 (supra) cited on behalf of the State. It is ruled therein that a true confession made voluntarily may be acted upon with slight evidence to corroborate it. It is further ruled therein that when the voluntary character of the confession and its truth are accepted it is safe to rely on it. Therefore, an extra-judicial confession, if it is voluntary and true, and not made under any inducement, threat or promise, is the potent piece of evidence against the maker.
30. In such circumstances, judging by the aforementioned yardstick laid down by the Apex Court it would not be safe and prudent to base the conviction solely on the basis of such extra-judicial confession. There is no doubt that the needle of suspicion is strongly fixed upon the appellant and there may be corroborative circumstances to cast a grave suspicion upon the appellant. However, it is settled position of law that suspicion, however, strong and formidable cannot take the place of proof.
31. The FIR (Ext. 1/1) evinces that the same was received by the duty officer at 8.15 A.M. on 21.1.94 and accordingly, P.S. Case No. 694 dated 21.1.94 under section 302/201 IPC was registered. The inquest report (Ext. 2) was = 15 = prepared at 9.15 A.M. on 21.1.94. It appears from the inquest report that the said inquest was held in connection with Lalgola P.S. U.D. No. 694 dated 21.1.94. The relevant P.S. case was not referred to therein. The learned counsel for the appellant has, therefore, sought to make out a case that the FIR was antedated. True, inquest was held at the interval of one hour after the lodgement of FIR. However, the P.S. Case No. does not figure therein. There is also nothing on record to indicate that such omission was deliberate one. The police officer prepared the inquest report and also received the FIR. The broad facts narrated in the FIR and inquest report are identical. There is no embellishment found in the FIR. Normally, whenever an FIR is antedated, it becomes tainted and embellishment including false implication of innocent persons is done after much deliberation. But, in the present case, it cannot be said that the relevant P.S. Case No. was not incorporated in the inquest report with an ulterior motive. That apart, whenever inquest had been held in connection with the U.D. Case no. 1/94 dated 21.1.94 there is no point in raising objection as to why P.S. case no. was not mentioned therein. We, therefore, do not find much substance in the objection raised on behalf of the appellant on that score.
32. Having regard to the backdrop of such factual scenario coupled with the judicial principles of law governing acceptability of extra-judicial confession, we are of the opinion that the voluntary character of extra-judicial confession has not been established in the present case. After subjecting the evidence of those witnesses before whom extra-judicial confession was purportedly made to a rigorous test on the touchstone of credibility, we have no hesitation in holding that those witnesses have miserably failed to pass the test and the extra-judicial confession should not, therefore, be relied upon. It is well settled that " if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and conviction can be founded thereon". In such circumstances, we are of the considered view that the entire approach of the learned trial court appears to be fallacious for the simple reason that the = 16 = conviction of the appellant is solely based upon an extra-judicial confession which is neither voluntary nor true. On the contrary, evidence on record clearly indicates that extra-judicial confession was extracted from the appellant by using force in the presence of police. That apart, PW 5, the wife of the deceased told the I.O. as also the Court that after the execution of biananama for the property of their village as well as for the property of village Pilki, her son threatened her husband three days before the incident that his father would not be allowed to leave the village without giving his share in the property. But, as discussed earlier, the I.O. did not care to seize the said biananama which appears to be the genesis of the tragic incident. Such callous attitude on the part of the I.O. has also undoubtedly weakened the prosecution case.
33. At any rate, it is also settled position of law that when two views are possible, one which enures to the benefit of the accused should always be accepted. Therefore, the appellant is entitled to get the benefit of doubt [vide (2004) 9 SCC 310 (State of U.P. vs. Ram Bahadur Singh), (2001) 14 SCC 667 (State through SPE & CBI, A.P. vs. M. Krishnamohan) and (2008) 10 SCC 450 (Ghureylal vs. State of U.P.)].
34. In the light of foregoing discussion, we cannot but hold that the conviction of the appellant is not based on proper appreciation of evidence on record and, as such, the order of conviction is not legally sustainable. But, the learned Trial court's finding, that the prosecution has failed to prove beyond reasonable doubt that the appellant committed any offence under Section 201 IPC, deserves no interference and as such the said finding stands affirmed. We are, however, unable to uphold the conviction of the appellant under Section 302 IPC. Accordingly, the impugned order of conviction and sentence is set aside. and the appellant be set at liberty forthwith. He also be discharged from bail bonds.
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35. Accordingly, the appeal succeeds and the appellant be acquitted of the charge under Section 302 IPC on the benefit of doubt.
36. Let a copy of this order together with the LCR be sent back to the learned court below for information and necessary compliance.
37. Let a Plain copy of this order, if applied for, be supplied to the parties.
I agree. (Girish Chandra Gupta, J.)
(Raghunath Ray, J.)