Calcutta High Court (Appellete Side)
Amar Das & Anr vs The State Of West Bengal on 17 January, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 119 of 1999
Amar Das & Anr.
-vs-
The State of West Bengal
Amicus Curiae : Ms. Minoti Gomes
For the State : Mr. Arun Kumar Maiti
Ms. Zareen N. Khan
Heard on: 17.01.2018
Judgement on: 17.01.2018
Joymalya Bagchi, J.:
The appeal is directed against the judgment and order dated 06.03.1999 passed by the learned Additional Sessions Judge, 2nd Court, Hooghly, in Sessions Trial No.122 of 1991 convicting the appellant for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- each in default of fine to suffer R.I. for six months more. No separate sentence was imposed upon the appellants for the commission of offence punishable under Section 201 of the Indian Penal Code.
Prosecution case as levelled against the appellants is to the effect that Chameli @ Basiran Bibi was a tenant under the informant namely Kalpana Adhikary. In the night of 5.7.1988 around 9 P.M. there was a quarrel between Amulya, another tenant and Chameli. Appellant no.1 Amar intervened and abused Chameli and there was an exchange of hot words. On 6.7.1988 around 10 A.M. Kalpana left for Chinsurah Imambara Hospital and on her return she was informed by Lakshmi Debi (P.W.20) that Chameli had vacated the room. Her belongings could not be found in her room. Informant asked Amar Das, an adjacent tenant about the whereabouts of Chameli but he replied that he did not know anything. Subsequently, dead body of Chameli concealed in a gunny bag and her belongings were recovered from a room under the possession and occupation of Amar and it was suspected that Amar and his wife, the appellants herein had murdered Chameli and concealed her dead body. P.W.13 recovered the dead body of Chameli as well as her belongings and on the complaint of P.W.1 first information report being Chinsurah P.S. Case No.9/164 dated 6.7.1988 under Section 302/201/34 of the IPC was registered against the appellants. Charge sheet was filed against the appellants under Sections 302/201/34 of the Indian Penal Code. The case being a sessions trial one was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge for trial and disposal. Charges were framed under Section 302/201/34 of the Indian Penal Code 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 22 witnesses and exhibited a number of documents to prove its case.
The defence of the appellants was that they were not tenants under P.W.1 and the dead body had not been recovered from a room in his exclusive possession.
In conclusion of trial, the trial court by the impugned judgement and order dated 06.03.1999 convicted and sentenced the appellants, as aforesaid.
Nobody appears on behalf of the appellant.
Ms. Minoti Gomes, learned counsel is requested to appear as Amicus Curiae. Ms. Gomes, learned amicus curiae argued that there is no direct evidence connecting the appellants with the alleged crime. Motive of the crime has not been established. Prosecution evidence does not establish beyond reasonable doubt that the appellants were tenants under P.W.1. No rent receipt has been produced to establish the tenancy. P.W.16 did not support the prosecution case that the dead body was recovered from the tenanted room of Amar. None of the appellants were present at the time when the seizures were made. There is nothing on record to show that P.W.3 had broken into the tenanted room of Amar. This facts clearly leads to the irresistible in the place of the recovery of the dead body was accessible to one of all and cannot be said to be in the exclusive possession of the appellants. Hence, the appellants ought to be acquitted of the charges levelled against them.
On the other hand, Mr. Datta along with Ms. Khan, the learned counsels for the State argued that there is ample evidence to show that Amar was the adjacent tenant of the victim and the evidence on record establishes that her personal belongings as well as the dead body was recovered from the said tenanted portion occupied by Amar and his wife. Evidence of P.W.16 is highly improbable and was rightly disbelieved by the trial judge. Accordingly, he prayed for dismissal of the appeal.
There is no direct evidence in the instant case that the case is based on circumstantial evidence. Prosecution has relied on following circumstances to prove the charges levelled against the appellants:-
a) the appellants and the victim Chameli were holding adjacent tenancies in the residence of P.W.1;
b) In the night of 5.7.1988 there was a hot altercation between the appellant no.1 and the victim;
c) Since 6.7.1988 victim could not be seen in her room.
It was suspected she had vacated the tenancy;
d) P.W.1 was informed by P.W.20 that the dead body of the victim was secreted in the tenanted room occupied by the appellants;
e) P.W13, the investigating officer recovered the dead body along with the personal belongings of Chameli from the tenanted room of the appellants.
f) Appellants had absconded soon after the
disappearance of the victim.
It is trite law that to bring home the guilt against the appellants the prosecution must show that each of the circumstances relied upon have been proved beyond reasonable doubt and that the said circumstances form a complete chain unerringly point to the guilt of the appellants and rule out any probable of hypothesis of innocence.
Let me assess the evidence on record in the light of the aforesaid legal premise.
P.W.1, Kalpana Adhikary is the landlady and the defacto complainant in the instant case. P.W.2 is her husband. She deposed that there was an altercation between one Amulya and the victim in the night of 5.7.1988 and appellant no.1 had intervened in the matter. Appellant no.1 and the victim had exchanged abuses. On the next day, P.W.1 had gone to Hooghly Imambara Hospital and on her return, she was informed by P.W.20 that the victim had left the room with her belongings. Soon thereafter P.W.20 again informed her that the dead body of the victim and her belongings were secreted in the room of the appellants. P.W. 13, the officer, was informed that the dead body along with personal belongings of the victim were recovered from the room occupied by the appellants.
P.W.2 has corroborated the evidence of P.W.1.
P.W.20, Laxmi Ghose deposed that there was exchange of hot words on the previous night between the appellant and the victim. Thereafter the victim returned to her room for the night. On the following morning she enquired of Chameli with P.W.1 and found that Chameli had vacated the room with her belongings. On that day at about 5 P.M. she went inside the room of appellant to take some Guraku and found one gunny bag inside the room and she got bad smell coming out from the said gunny bag. The daughter of the accused person had offered her some Guraku and she left the room and reported the matter to the wife of the landlord. In the event she left for a rented house at Hind Motor. She was declared hostile.
In cross-examination, she stated that there were three rooms in a row and five rooms in another row in the said house. There were eight rooms in all in the house. There were tenancies in all the said rooms.
P.W. 4 & P.W. 7 are the parents of the victim. It appears from their deposition that they did not reside with the victim. On being informed that the dead body of their daughter was kept concealed in a room, they came to the place of occurrence and signed on the seizure list relating to the recovery of the dead body of their daughter and her wearing apparels.
P.W.16, was a neighbour who deposed that Chameli was a tenant of P.W.1 and she was murdered 8/9 years ago. He found an assembly of people in front of the house of P.W.1 and found a gunny bag containing something with blood stains in front of the door of the room occupied by Chameli. He heard that Amar had fled away from the place of occurrence. He signed on the seizure list relating to the recovery of the dead body and the belongings of the victim.
P.W.13 is the first investigating officer in the instant case. On being intimated, he came to the house of P.W.1 and effected seizure of the dead body and the wearing apparels of the victim. He deposed that on 6.7.1988 he received information of murder and diarised such information as G.D. No. 308 dated 6.7.88. He visited the place of occurrence. Dead body was recovered from the tenanted room of Amar Das. Other tenants were present. The gunny bag was recovered from the room of Amar Das. Photographs of the dead body was taken. He made inquest over the dead body (Ext.6). The dead body was sent for post mortem examination. He seized the belongings of Chamili from the room of Amar Das. He identified the articles. He sent articles for F.S.L. examination.
In cross-examination, he stated that a sketch map prepared by him. There is no mention of Kalpana Adhikary as the owner of the house. He did not collect any rent receipt from the landlady with regard to the tenancy. He noted the room where the alleged occurrence took place. He did not seize any article belonging to Amar Das or Lila Das from the said room. There is no note in the C.D. that before arrival at the place of occurrence they have brought out the dead body from the gunny bag. There were four rooms in the row in the premises where the dead body was recovered. There is no note in the C.D. as to who resided in the rooms and the amount of rent paid by the tenants. From Material Ext. 8 i.e. Pass Book, it appears that the address of Basiran Bibi is Naldanga Jhupri, Bandel.
P.W.14 is the other investigating officer, who collected the post mortem report and F.S.L. report. He submitted charge sheet.
P.W.9 is the doctor, who conducted the post mortem. He found the following injuries:
1) Lacerated injury on the left parietal region 3" x 1/6 " x muscle x bone.
On dissection he found crack fracture on the upper bone with subdural hemorrhage.
2) Cut laceratioin on the left side of the forehead 2"
x ½" x muscle x bone.
On dissection - the underlined bone was cut.
3) Cut laceration on the left lower eye-lid 1" x ¼"
x 1/3".
In his opinion, death was due to the effect of head injuries as noted above ante mortem and homicidal in nature.
An analysis of the prosecution evidence would show that the most vital circumstance relied by the prosecution is the recovery of the dead body of the personal belongings of the victim from the tenanted room of the appellants. However, apart from the oral versions of the prosecution witnesses, no contemporaneous document i.e. rent receipt was produced to prove the tenancy of the appellants in the said room. Prosecution has relied on the sketch map prepared by the investigating officer during investigation. However, in the course of cross- examination, the said investigating officer admitted that there is no note in the C.D. as to the identities of the tenants and the rents paid by them to P.W 1. It is trite law that a sketch map prepared by an investigating officer is hearsay evidence and cannot be relied upon in the absence of direct evidence with regard to the tenancy in the premises. No contemporaneous documents in the form of rent receipts were proved to establish the claim of P.W.1 and P.W.2 that the appellants and the victim were tenant in adjacent rooms.
Hence, it is difficult for me to come to a firm conclusion that the appellants were tenants in a room which was adjacent to the victim. On the other hand, appellants have raised the defence plea that they lived in a different place and were not tenants under P.W.1.
In view of the aforesaid discussion, I opine that the circumstance that the appellants were tenants in a room under P.W 1 which was adjacent to the victim has not been proved beyond reasonable doubt.
Coming to the seizure of the dead body, I find that there is dichotomy in the prosecution evidence with regard to the place of seizure. While P.W.1 and her tenants state that the place of seizure was a North Western room which was adjacent to the tenancy of the victim, P.W.16 stated that the gunny bag containing the body was found in front of the room of the victim herself. Evidence of P.W 4 and 7 with regard to the room occupied by the victim and the adjacent tenancies are of little relevance that they had never visited the premises of the victim during her lifetime. Hence, it appears that prosecution has relied on the evidence of the landlords namely P.W 1 and 2 and their tenants to establish that the dead body was recovered from a room occupied by the appellants. On the other hand, P.W 16, a neighbour who was present at the time of seizure of the body and had signed o the seizure list deposed that the body was in a gunny bag kept in front of the door of the room occupied by the victim. P.W 16 has not been declared hostile and his version demolishes the precaution case that the body was recovered from the room let out to the appellants. The manner of recovery of the dead body of the victim and her wearing apparels are shrouded in mystery. It is the version of the precaution witnesses that the body was concealed in a gunny bag. However, no gunny bag was seized from the spot. None of the articles seized by P.W 13 as personal belongings of the victim have any identifying marks and are available in any household. Only the passbook seized (Mat Ext. 8) stands in the name of the victim. However, the address noted in the said document is 'Nandanga Jhupri, Bandel' which is not the address of the premises of P.W 1. This circumstance, inconsistent with the prosecution case, has not been explained away. Finally, though it is claimed that the appellants had fled from the place of occurrence, there is no evidence on record that their room was under lock and key. P.W 13 did not enter the room by breaking the door. On the other hand, the room from where the body was claimed to have been recovered appears to be accessible to one and all and it cannot be said that it was under the exclusive control and possession of the appellants alone. This circumstance clearly militates against the prosecution version of recovery of the dead body and the wearing apparels of the victim from a place which was under the exclusive control and custody of the appellants.
In view of the aforesaid discussion, I am constrained to hold that the chain of circumstances as proposed by the prosecution has snapped and it cannot be said that the prosecution case based on circumstantial evidence against the appellants has been proved beyond reasonable doubt.
Accordingly, I set aside the conviction and sentence of the appellants.
Appeal is allowed.
I am informed that the appellant no. 1 is in custody while appellant no. 2 is on bail.
Appellant no. 1 shall be forthwith released from custody upon executing a bond to the satisfaction of learned CJM, Hooghly for a period of six months in terms of section 437A Cr.P.C. if he is not wanted in any other cases.
Appellant no.2 shall be discharged from her bail bond after six months in terms of Section 437A of the Code of Criminal Procedure.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) rkd/tkm