Calcutta High Court (Appellete Side)
Arjun Tudu & Ors vs State Of West Bengal on 30 March, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Mr. Joymalya Bagchi.
C.R.A. 33 of 1999
Arjun Tudu & ors.
Versus
State of West Bengal
Mr. Ayan Basu: Amicus curiae.
Ms. Anasua Sinha: For the State.
Heard on : March 30, 2017.
Judgment on: March 30, 2017.
Joymalya Bagchi, J.
The appeal is directed against the judgement and order dated 13.01.1999 passed by the learned Additional Sessions Judge, Malda in Sessions Case No.45/90 and Sessions Trial No.21/97 convicting the appellants for commission of offence punishable under Section 304 Part II of the Indian Penal Code and sentencing them to suffer R.I. for two years.
Prosecution case, as levelled, against the appellant is to the effect that on 7.3.1989 at around 7/7.30 P.M. victim Jitu Hembram came to the residence of his divorced wife Swami Tudu who had married for the second time with one Marang Tudu in order to take away his son. When Swami refused to hand over the child, an altercation began between them. Thereupon, the said Swami Tudu, Marang Tudu, his brother Arjun Tudu and one Pele Mardi assaulted the victim with various weapons resulting in severe injuries on his person and finally the victim succumbed to his injuries. Over this incident, one Nagendra Nath Mondal 2 lodged written complaint resulting in Gazole P.S. Case No.29 dated 7.3.1989 under Section 302/34 of IPC. In conclusion of investigation, charge sheet was submitted under Section 302/34 of IPC and the case was committed to the Court of Sessions and transferred to the court of the Additional Sessions Judge, Malda for trial and disposal. Charge was framed under Section 302/34 of IPC and the same was read over and explained to them. The appellants pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined 15 witnesses to prove its case. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial court by the impugned judgement and order dated 13.01.1999 convicted and sentenced the appellants as aforesaid.
Nobody appears on behalf of the appellants.
Mr. Ayan Bose, learned counsel amicus curiae submits that none of the prosecution witnesses who claim to be eyewitnesses had, in fact, witnessed the incident. It is also submitted that the place from where the dead body of the victim was recovered has not been established. Accordingly, he prays for acquittal of the appellants.
On the other hand, Ms. Anasua Sinha, learned counsel for the State, submits that the victim had estranged relationship with appellant Swami Tudu. He had come to the residence of Marang and Swami to take away his son and his dead body was found at the courtyard of the appellants which is adjacent to the road. The appellants had confessed before the witnesses that they had murdered the victim and accordingly the conviction of the appellants is liable to be upheld.
P.W.1 to P.W.3, P.W.8 and P.W.10 to 12 claim to be the eyewitnesses of the instant case.
P.W.1, Dangu Kisku, deposed that the victim was a person of unsound mind. Swami Tudu used to reside of the house of Marang Mardi whom she had married. Victim went to the house of Marang to bring his son. Swami refused to give his son. Over the issue the victim was assaulted by Marang with lathi, Arjun assaulted him with yoke, Pele assaulted him by lathi and Swami manhandled him. The incident took place 8 years ago at 7/7.30 P.M. in the house of Marang. As a result Jitu died. He had seen the incident of assault. Various people assembled in the house of Marang Mardi. The accused persons confessed their guilt before Nagen Babu and other villagers. They informed the incident to police station and filed written complaint at the P.S. The complaint was written by Nagen Mondal. He put his signature thereon.
In cross-examination, he stated that he could not say that what is written in the written complaint. He found Jitu lying in dead condition by the side of the road.
P.W.2, Shiba Mardi, deposed that Jitu had come to the house of Marang and the appellants had assaulted him as he wanted to take away the son of Swami Tudu. He, however, admitted that he had not seen the incident but had seen the dead body of the victim was in the house of the appellants. He deposed that the accused persons have confessed their guilt. Nagen Babu asked Dangua to go to P.S. They kept the dead body at the courtyard. Dangua went to the P.S. as per direction of Nagen Babu. Daroga Babu prepared inquest report. He put his LTI thereon.
3P.W.3, Baha Soren, deposed that hearing hue and cry she went to the spot and found Jitu lying in dead condition and the appellants had admitted that they had killed Jitu. Many persons were present at the place of occurrence.
In cross-examination, she deposed that in between her house and that of Marang house there is a road. She found the dead body on the said road. The appellants had confessed their guilt only once in the presence of police and other persons.
P.W.8, Bhiren Mandal, has declared as hostile. He deposed that he was informed about the incident 9 years ago by Maragn Mardi that Jitu was lying dead in the house of Marang. On going there, he found the dead body with bleeding injuries.
P.W.10, Jetha Tudu, P.W.11, Mohan Mardi and P.W.12, Nemai Hembram, who had claimed to be eyewitnesses and have also been declared hostile and have not deposed anything implicating the appellants.
P.W.4, A.S.I. Pitambar Das, was attached to Gazole P.S. and had prepared the seizure list of wearing apparels and other articles of the deceased.
Prosecution witnesses no. 5, namely, Constable 556 Ajit Kumar Ghosh, accompanied the prosecution witness no. 14, namely, Sub Inspector Nirmal Chandra Bhattacharya to the spot and was a signatory to the inquest report prepared by the said police officer. He carried the dead body of the victim to Malda Hospital for post mortem examination.
Prosecutioin witness no. 7 is a seizure list witness with regard to seizure of articles by the prosecution witness no. 14. He proved his signature in the seizure list being Exhibit-3.
Prosecution witness no. 9, namely, Assistant Sub Inspector of Police Pranatosh Kumar Nag, is also a witness to the seizure of wearing apparels of the victim at the police station.
Prosecution witness no. 13, namely, Badal Chandra Sarkar was a constable at Gazole Police Station at the relevant point of time. He brought Nemai Hembram, who is a witness to the incident, to court for recording his statement under Section 164 of the Code of Criminal Procedure by the learned Magistrate on March 8, 1989.
Prosecution witness no. 14 is the investigating officer in the instant case. He deposed that he was attached to Gazole Police Station as Sub Inspector of police on the date of incident, that is, March 7, 1989. On that date, the defacto complainant submitted a written complaint at the police station and thereafter the officer in-charge, Gazole Police Station endorsed the case to him for investigation after drawing up for formal first information report being Exhibit-5. He proved the written complaint being Exhibit-6 and the signature of the officer in-charge on the written complaint being Exhibit 6/1. He deposed that he went to the place of occurrence, prepared a sketch map with index being Exhibit 7. He also prepared an inquest report of the place of occurrence being Exhibit-4. He sent the dead body of the victim to Malda Sadar Hospital for post mortem examination. On the date of occurrence, he seized from the house of the Marang Mardi one yoke made of bamboo with blood stains, one lathi with blood stains, one flute with blood stains, one dry palm leaf with blood stains and blood stained earth under a seizure list. He arrested the 4 accused persons and forwarded them to court on March 8, 1989. He sent Nemai Hembram, the father of the victim, to court for recording his statement under Section 164 of the Code of Criminal Procedure before the learned Magistrate. Constable Ajit Ghosh produced before him the wearing apparels and post mortem blood which he seized under a seizure list. He received the post mortem report and submitted charge sheet in the instant case.
Prosecution witness no. 6 is the autopsy surgeon, who deposed that death of the victim was due to the effect of injuries. He further deposed that he found the following injuries on the dead body of the victim :-
i) Laceration of head and face with compound fracture;
ii) skull bones and lower jaw in pieces adhered to by lacerated skin; and
iii) ruptured membranes and brain matter drained out.
Prosecution witness no. 6 deposed that the nature of weapons used were hard and of blunt substances. The death of the victim, in his opinion, was due to the effect of injuries, as aforesaid, which were antemortem and homicidal in nature.
From the aforesaid evidence on record, it appears that the victim, Jitu Hembram, suffered a violent death in the morning of March 7, 1989. Prosecution witness no. 6, the autopsy surgeon, has spoken of number of injuries on the person of the victim and it is evident that such injuries were the cause of homicidal death of the victim. The question, therefore, is whether the appellants were the authors of such injuries. Although the prosecution has relied upon number of witnesses who claimed them to be eye witnesses of the incident, analysis of their evidence do not establish beyond doubt that they were present when the victim was assaulted. No doubt, prosecution witness no. 1 claimed to have seen the incident, but in cross examination he admitted that he found Jitu lying dead by the side of the road. Prosecution witness no. 2 categorically deposed that he was not present at the time of incident and prosecution witness no. 3 has also admitted that he was a post occurrence witness. Other prosecution witnesses, namely, prosecution witnesses no. 8, 10, 11 and 12, who claimed themselves to be the eye witnesses of the incident, have been declared hostile. Hence, none of the prosecution witnesses can be relied upon as eye witnesses of the incident.
Apart from the evidence of the aforesaid witnesses, the prosecution has relied upon a purported extra judicial confession made by the appellants. Prosecution witnesses no. 1, 2 and 3 deposed that when they came to the place of occurrence, the appellants admitted that they had assaulted the victim. Prosecution witness no. 1 deposed that such confession was made in the presence of Nagen Babu, who, however, has not been examined in the instant case. On the other hand, prosecution witness no. 3, in his cross examination, stated that the appellants confessed their guilt only once in the presence of police officer. Hence, the evidence of the prosecution witnesses is inconsistent to each other as to the time and manner when such confession was made. That apart, if the confession has been made before the police officer, such confession is clearly hit by the provision of Section 25 of the Evidence Act and the same cannot be treated as inadmissible evidence.
5In view of such inconsistent and contradictory version as to the time and manner of purported extra judicial confession made by the appellants and that too before police officer, I am unwilling to rely on such inadmissible piece of evidence to come to a finding of guilt against the appellants.
Finally, it has been argued that the victim was found dead in the house of the Swami and Marang Mardi, but no explanation was coming out from them as to how the victim suffered the homicidal injuries.
There is evidence on record that the victim was suffering from an unsound mind and used to roam about here and there. There is also confusion as to the exact place where the dead body of the victim was found. While the prosecution witnesses no. 1 and 3 deposed that they found the victim lying dead on the road beside the house of Marang Mardi, the evidence of prosecution witness no. 5 is that the dead body was lying in the court yeard of the house of Marang Mardi adjacent to the road.
Hence, there is no clarity as to where the dead body of the victim was lying and whether such place was in exclusive control and dominion of the appellants. In order to attract the reverse burden upon the appellants under Section 106 of the Evidence Act, it is necessary for the prosecution to establish that the place where the dead body of the victim, who suffered a homicidal death, was found was wholly within the exclusive control and dominion of the accused persons and, therefore, making it incumbent on the latter to explain away such injuries.
However, in the factual matrix of the instant case, it appears that the prosecution has not been able to prove that the dead body of the victim was found at a place which was within the exclusive control and domain of the appellants. Some of the witnesses stated that the victim was lying dead with the injuries on the road between the house of Marang Mardi and another person whereas others had stated that it was in the courtyard of Marang Mardi adjacent to the road. There is ample evidence on record that the courtyard of Marang Mardi is accessible to general people and the same cannot be said that the victim was found dead in a place which was within the exclusive dominion and control of the accused persons so as to attract the reverse burden under Section 106 of the Evidence Act.
Moreover, evidence has come on record that the victim suffered from mental illness and used to move hither and thither. None of the prosecution witnesses had seen the victim come to the house of the appellants and quarrel with them over the issue of taking away his son. The place of death has also not been proved to be in the exclusive control of the appellants. In the absence of such facts being proved beyond reasonable doubt, I am of the view that it would be unsafe to shift the onus upon the appellants to explain away as to how the victim suffered severe injuries resulting in his death. It is axiomatic that the burden of proof always lies on the prosecution and it is for the prosecution to prove its case beyond reasonable doubt unless the circumstances of a case unerringly create a situation where the cause of death of the victim is exclusively within the special knowledge of the accused persons which necessitates them to discharge onus of explaining away the cause of death under Section 106 of the Evidence Act failing which an adverse inference may be drawn against them.
6In view of the aforesaid discussion, I am of the opinion that it would be prudent to extend the benefit of doubt to the appellants and to acquit them of the charges levelled against them. Accordingly, the appeal is allowed and the judgment and order of conviction and sentence is set aside.
The appellants shall be discharged from their bail bonds after six months in terms of Section 437A of the Code of Criminal Procedure.
Let a copy of the judgment along with the lower court records be sent down to the trial court at once.
I record my appreciation for the able assistance rendered by Mr. Ayan Basu, learned advocate, as amicus curiae in disposing of the appeal.
Photostat certified copy of this order, if applied for, will be made available to the applicant within a week from the date of putting in the requisites.
dns ( Joymalya Bagchi, J. )