Calcutta High Court
Upasana Ghosh Alias Bramhachari vs The State on 9 December, 1997
Equivalent citations: (1998)1CALLT363(HC)
JUDGMENT R. Bhattacharyya, J.
1. This criminal appeal is directed against an order of conviction and sentence passed by the learned trial Judge in Session Trial No. 2(7) of 1987 convicting the accused Upasana Ghosh. @ Bramhachary to life imprisonment for having committed offences under sections 302/ 201/34 of the IPC.
2. For the sake of brevity without obscurity and for transparency, the factual exposure of the case will unfold the history of the incident, failing which, it will create not only a dent on the fact but also on law. The law will scorn us if we depart from the procedure, as glaringly available in section 354 of the Code of Criminal Procedure.
3. Now returning to the background of the case, we find that Utpal Chowdhury and his younger brother Ujjal became the disciples of "Shree Tridandi Swamy" shortly before 9 years of the occurrence and the elder brother Uttam Chowdhury @ Uttam Sloko Bramhachary also became the disciple of the said Maharaj some 10 years back and all the three used to put up in the Shree Chaltanya Math at 1/3/12, Dum Dum Road as the place of their abode. Uttam's academic carrier was very much sound who used to occupy the South West Room on the ground floor.
4. It is needless to say that the affairs of the Math were being looked after by Upasana Ghosh about whom we are concerned tn the appeal.
5. As the facts roll by, it reveals that there was outburst of quarrel between Uttam and Upasana over the supply of food. Upasana used to suffer from complex being oblivious of the fact that he was indoctrinated much after Uttam and there was an estrangement of feeling.
6. The fateful occurrence took place in the night of 13/14.10.86 at about 3-00 hours when the informant woke up and went to the room of his brother, Uttam whose absence was conspicuous. He found the household articles there in a state of disarray. Upasana could not furnish any answer about the absent. He saw the floor of the Veranda in a wet condition. In course of making enquiry about him, the unnatural death of Uttam came to light whose body was found in the toilet, although, he was assured by Upasana about his safe return to the Math.
7. Upon lodgement of an information, the investigation terminated which included amongst others the recording of a statements of different witnesses, holding of inquest, receipt of forensic reports and photographs, seizure of alamaths, report of FSL and arrest of the accused who at the material point of time had had no marks of injury.
8. The case was put-up for trial before the learned SDJM who after perusal of the case record came to the conclusion that the case is exclusively triable by a court of Sessions, for which he committed the case and the accused to the court of Sessions to stand trial.
9. In due course, the Session Judge took cognizance of the case under section 193 of the Code of Criminal Procedure and charges were framed against Upasana and Krishna under section 201/34 of the 1PC who pleaded not guilty to the charges and claimed to be tried. The prosecution has examined in this case as many as 20 witnesses but none had been examined on behalf of the accused. The case of the prosecution, as could be gathered from the trend of the cross-examination of the accused under section 313 of the CRPC, is of bare innocence. investigation agency according to the accused, foisted false charges of murder and common intention which became frozen by the assembly of facts.
10. The learned trial court on consideration of evidence on record and upon consideration of other circumstances passed the order of conviction and sentence. Upasana was sentenced to life Imprisonment plus fine in default I/D.R.I. for three months under section 201. All the sentences are to run concurrently. The other accused Krishna was acquitted from the charges.
11. The questions that formulated for decision of the court are as to whether the appellant Upasana is the architect of the crime and whether the circumstantial evidence explored by the learned trial court for basing a conviction could be accepted, according to the recognised lines laid down by all the courts of our country, which included amongst others the apex court.
12. The main stay of the prosecution case is whether the circumstantial evidence which has been relied upon by the learned trial Judge for basing the convicting could be accepted. Our courts have been often tortured and repeatedly lashed by the parties to fix the accused with the crime founded upon circumstantial evidence. The courts were called upon to analyse the mode, manner, nature and character of the circumstantial evidence which could strengthen the hands of the courts to come to the conclusion about the guilt of the accused. The evidence must be clinching.
13. The Supreme Court in Laxshmiraj Shetty and Others v. State of Tamilnadu AIR 1988 SC 1274 : 1988 Cr LJ 1783 held :--In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hyposthesls of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency that they should be such as to exclude every hypothensls but the one proposed to be proved. It other words, there must be a chain so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
14. The view of the apex court and that of other courts of our country about the Judicial precedents did not suffer any change nor acted in reversible gear when the courts are confronted with the appreciation of evidence. The view is, therefore, uniform.
15. In the backtrain of the above view of the courts of our country, we now induct ourselves to a tempestuous voyage to come to a conclusion about the guilt or otherwise of the accused.
16. In examining the truth of the case of the prosecution, the court is saddled with an obligation that each of the circumstances relied upon by the prosecution must be clearly established. The chain of proved circumstances should be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
17. The learned counsel for the appellant has laboriously researched in her argument that the prosecution proceeded in the case without any tangible evidence on record. The prosecution embarked on an evidence which, however, alone remained in a fluid stage.
18. In the perspective of the above, the conviction of the accused is not only unwarranted but also unwholesome, though rigorously and vigorously disputed by the learned counsel appearing for the State. The entire case of the prosecution, according to her, is out of gear viz. the bickerings over the supply of food and tiffin of which the deceased was in charge of it had not been proved. The story of causing death in the room of the deceased by stabbing had never held the field. The non-examination of Govlnda MaharaJ who, according to the prosecution, was the last one who came to the Ashram and was also made an accused had been subsequently let off. The absence of proof of trail of blood from the room or the premises of the Ashram to the toilet had not been proved, although, the dagger and body were found, underneath the cot the estrangement of feeling between the deceased Uttam and the appellant, not having been corroborated by any material worth the name, nor any enquiry was made by the Ashram authorities that the deceased had gone missing nor the persons residing in an around the Ashram was apprised of such missing nor the injuries sustained by the appellant, as claimed by the prosecution during the occurrrence, had been substantiated by clinching evidence nor any attempt was made by the prosecution to collect the finger prints and palm Impression on the incriminating weapons recovered during the investigation nor any attempt was made that Govinda Moharaj was last "seen with the victim when he opened the main door nor there is any tangible microscopic material that the three brothers namely Uttam. Utpal and Ujjal had any anlmous against the deceased and the contradictions galore having caused the topsyturvy of the prosecution case.
19. In addition to the above, we excavate other circumstances from the record to arrive at a decision that the claim of the prosecution is illusory and unfounded.
20. In the above aspect, we leave on record that there are as many as 20 witnesses who have been examined in this case. However, we set out their names PW-1 Constable, Ablr Banerjee, PW-2 Sanat Kr. Halder, PW-3 Utpal Chowdhury (brother of the deceased), PW-4 Ujjal Krishna Bramhachari (brother of deceased), PW-5 Goutam Mukherjee. PW-6 Slkha Dutta, PW-7 Sfpra Das. PW-8 Ram Gopal Chowdhury. PW-9 Susata Halder. PW-10 Premjlt Mazumdar, PW-11 Hemata Kr. Jana, PW-12 Rebatl Mohan Nath, PW-13 Dr. J.N. Roy (Autopsy Surgeon) PW-14 Haridas Moitra. PW-15 Arun Chakraborty. PW-16 Bimal Sarkar. PW-17 Ashlm Chakrabory, PW-18 Baban Misir, PW-19 Utpalendu Roy and PW-20 Prantosh Ghosh.
21. Now we will begin with the evidence of PW-3 and PW-4 in isolation of inconjunction with each other. Their evidence is of supreme importance as both of them are the brothers of the deceased.
22. Uttam lodged with Chaltanna Gourlo Math at 1/3/12, Dum Dum Road Calcutta-700 002. They used to put in the said Math. All the three bothers are the students of the school. To stir the claim of the prosecution,' it has launched an offensive against the accused appellant on the ground that there was an estrangement of feeling between the accused on the one hand and the deceased on the other. The prosecution has capitalised the estrangement of feeling as one of the circumstances for liquidation of Uttam glossed by denial of food and tiffin to him. The evidence of two brothers is uniform at the same breath but its assurance during the evidence has been drawn to a blank who did not spend a few words to the investigating officer and who recorded their statements. Even the inhabitants of the Ashram were not found to be bold and brave to share the evidence of two brothers over the denial of food and tiffin to Uttam after return of the deceased from the school.
23. PW-6 Sikha and PW-7 Sipra though known to the deceased and his brothers were never apprised of the denial of tiffin resulting in ill feeling between the deceased and Upasana. It gleans from the evidence of PW-6 & PW-7 that they were known to Uttam the deceased but it did not appear from the lanes and by-lanes of their evidence that the deceased or their brothers ever told such a precious and invaluable fact to them. Undoubtedly, it is a specious plea cultivated by the brothers to foist the charge of murder on the appellant purely on surmise.
24. PW-3 Utpal gave a twist in the evidence that Govinda Maharaj told him that Uttam was in his room during the night of occurrence who opened the door by being called by him. This evidence is absolutely a bunkum when the evidence of the investigating officer maintains a silence about that. If we take the face value of the evidence of PW-3, it is manifest that the deceased stayed in the room of Govinda which could not afford any opportunity to the appellant to commit the heinous crime. Govinda was neither examined nor any steps taken to send him to trial. Uttam stayed in the room of Govlnda during the night finds proof. The murderous assault by Upasana on him therefore during the night becomes abortive. This is a bend in the evidence of PW-3 which cannot be reconciled with the case of the prosecution. There is no material on record that both Govlnda and Upasana were hand in gloves with the object of committing the crime.
25. On an enquiry made by two brothers [PW-3 & PW-4), Upasana intimated them about the deceased's departure in the night who would come back for his examination. But when the brothers were examined by PW-19 the investigation Officer Utpalendu Roy, it looms large from his evidence that the particular statement is conspicuously silence. Thercfoie, importing the stranger Upasana is a well conceived plan as the court has already come to the conclusion that the estrangement of feelii.g over non-supply of food to them is a ruse. The Secretary PW-7 who is likely to know the affairs of the same did not spare a few words about the estrangement of feeling. Thus, there is no bedrock of the estrangement of feeling as amplified by the prosecution is an Ignoble attempt to catch the straw before drowning. Further the persons leaving in an around the Ashram including the school teachers were not examined. Though the estrangement of feeling became the domestic affairs of the Ashram, yet none of the persons from the authority even spoke about such estrangement of feeling between the deceased on the one hand, and, Upasana on the other. We have copiously dealt with the estrangement of feeling which by the reason of the evidence becomes an absurdity as it has neither been proved nor corroborated.
26. The prosecution had all along laid emphasis that Upasana is the architect of the crime as he suffered injury during the scuffle between the deceased and Upasana. This is a very vital point which we will answer as we proceed. The prosecution has given a currency that Upasana was the Chief Collaborator of the offence complained of. The entire blame is laid at the door of Upasana. But if we turn to the evidence of the Dr. PW-13, the case of the prosecution becomes ludicrous. There is no shred of obscurity from the evidence of the Doctor who gave a sworn testimony that "several injuries noted by me would have been caused by assault by more than one person using two different weapons. After sustaining injury No. 10, it would have been Impossible for the subject to cry or speak. After death, a body becomes heavier. in my opinion, it will not be possible for a man to carry a dead body in the case wrapping in bedding and gunny bags alone from one place to another".
27. The above evidence shows that there were more than one person and by the act of theirs, Uttam was done to death. This invaluable piece of evidence which is material has been lost sight of by the prosecution.
28. The prosecution has magnified the injury found on the person of Upasana which according to the prosecution bore the marks of injury sustained by the him during this scuffle. But if we go through the order sheet of the learned trial court, it does not signify from there that he suffered any injury. At least record of the trial court or the record of the Police Station does not suggest for a moment that he waa arrested with the injury.
29. Thus, the injury suffered by him during the assault is worn out thin, if the deceased would have been dragged from the room to the toilet, it would have bear the trail of blood which is latently and patently absent fostering susplclan of his murder inside the Ashram. There is speculation everywhere which does not prove sound the claim of the prosecution case.
30. PW-13 has given an account that there was struggling between the deceased and the offender. But the prosecution could not adduce any evidence of struggling in course of the trial. The injuries suffered by the accused cannot be attributed to the result of the incriminating circumstances. Upasana was the target of macabre assault stands proved by a number of injuries sustained by him about which there cannot be any two opinion, the report of the FSL if read surreptitiously does not remotely prove that the accused is the author of the crime. Several alamaths were seized by the police from the Ashram but they do not have any bearing on the prosecution case. Even the nail cuttings collected by the professor of Forensic and State medicine did not render any result in favour of the prosecution. Even the Serologlcal report cannot fix the accused with the offence complained of for the result of examination. The injuries found on the body of Upasana might be the result of the custodial torture. When the accused was produced before the learned Magistrate immediately after ' his arrest, there is no note of sustaining such injuries by the accused. We can legitimately hold as we hold that the injury is the result of the post worest activities of the prosecution. It really passes all comprehension to believe that the finger prints were not taken of the accused considering the nature and gravity of the case and, in particular, when the incriminating weapons were recovered.
31. Over and above, the contradictions galore in respect of the evidence of all the witnesses which found their room in the evidence of the investigating officer PW-19 some of which, we have already indicated in the early part of our Judgement. The prosecution from its very inception gave a publicity that Upasana used to state to Uttam that either he or Uttam shall live. But this has not been stated by PW-3 while examined by the police. There are enough contradictions in the evidence of the local witnesses which upon consideration cannot but show that they made an attempt to spin out a false case against the accused. Their evidence has no reality with the offence complained of about the involvement of Upasana.
32. It is true, that one may have moral conviction but unless there be any legal evidence behind it, the court would not take into consideration, the moral conviction as suspicion cannot take the place of proof.
33. Therefore, none of the circumstances listed above even if brought to a close could conclusively establish the guilt of the abused. It is well established principle of law as it is a case of circumstantial evidence that the prosecution is obliged to prove or establish each circumstance by independent evidence and the circumstances so established should form a complete chain without giving room to any other hypothesis and should be consistent with the guilt and inconsistent with his innocence. We find the evidence of the witnesses examined namely, the brothers is artificial. The mere recovery of the wrist watch can never be considered to be a clinching evidence to connect the accused with the crime. Nor it could attribute to the fact that the recovery of the watch leads to a hypothesis about the guilt of the accused person and inconsistent with his innocence. In the absence of any formidable evidence on record, the guilt of the accused has not been established.
34. The brothers of the deceased gave an account of the incident, after giving a twist to the fact about which, they are silence before the occurrence suspicion. They have given different account at different stages not corroborated or assured by any evidence worth the name and, accordingly, we reject their testimonies.
35. We have taken into consideration that the statements of the accused persons recorded under section 313 of the CRPC do not afford to give us any unfailing assurance of the case when the evidence of the prosecution suffers from perversity, the statements of the accused recorded under section 313, though a necessity cannot build up the case of the prosecution. In the result, the conviction and sentence awarded to the appellant are set aside and the appellant in jail be set at liberty forthwith. The amicus curie appointed by this court deserves appreciation as she took much pain and labour to render assistance to the court in disposing of this appeal which is commendable.
The appeal is allowed accordingly. Let a copy of the judgment and the LCR go down to the concerned court without any delay.
36. Appeal allowed