Calcutta High Court (Appellete Side)
Arfan Ali @ Erfan Ali @ Sannu Sk.& Ors vs The State Of West Bengal on 17 March, 2011
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
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AForm No.J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
THE HON'BLE MR. JUSTICE KALIDAS MUKHERJEE
AND
THE HON'BLE MR. JUSTICE MD. ABDUL GHANI
CRA NO. 180 OF 1993
Arfan Ali @ Erfan Ali @ Sannu Sk.& Ors.
Vs.
The State of West Bengal
For the Appellants : Mr. Sekhar Basu
Mr. Joy Bagchi
For the State : Mr. Subir Ganguly
HEARD ON : 08.03.2011 and 11.03.2011.
JUDGMENT ON : 17.03.2011
KALIDAS MUKHERJEE, J.:
1. This appeal is directed against the judgement of conviction and sentence passed by Learned Additional Sessions Judge, Malda in Sessions Trial No. 9 of 1992 corresponding to Sessions Case No. 52 of 1990 sentencing thereby each of the accused persons to suffer imprisonment for life and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for three months under Section 302, Indian Penal Code and also to suffer rigorous 2 imprisonment for two years and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for three months.
2. The prosecution case, in short, is that one Nausad Ali lodged complaint with the Officer-in-Charge, Kaliachak Police Station alleging that his sister Rohila Khatun was married with Erfan Ali Sekh alias Sannu. On 30.09.1980 at night Erfan Ali Sekh alias Sannu came to the house of the informant and took back his wife to his own house. On the next morning, the informant came to learn that Rohila Khatun died and the family members of Erfan Ali Sekh alias Sannu buried her in the village. The informant subsequently came to learn that it was not a natural death. Rohila Khatun was about 17-18 years old at that time.
3. After the information regarding the death of Rohila Khatun was lodged by Nausad Ali on 02.10.1980, U.D. Case No. 22/1980 dated 02.10.1980 was started. The inquest was held in presence of the Executive Magistrate. Thereafter taking permission of S.D.O. the dead body was lifted from the graveyard. The postmortem examination was done by the Autopsy Surgeon and on the basis of the inquest report, postmortem report and other materials appearing in the C.D. of the U.D. Case, the suo motu F.I.R. was lodged by the O.C. (P.W. - 1) Kaliachak Police Station under Section 302, 201/34, Indian Penal Code being Kaliachak P.S. Case No. 10 dt. 10.10.1980.
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4. After completion of investigation charge sheet was submitted. The Learned Trial Judge framed charges under Section 302/201/34, Indian Penal Code to which the accused persons pleaded not guilty and claimed to be tired.
5. Mr. Basu appearing for the appellants submits that it is a case of circumstantial evidence and in such a case, motive being an important factor, the prosecution could not prove by clinching evidence that appellants were the perpetrators of the crime. Mr. Basu contends that mere suspicion cannot be said to be sufficient to prove the guilt of the accused persons.
6. It is contended that there is no evidence regarding the alleged ill treatment by the husband or members of his family upon the victim. It is contended that there is no evidence regarding the inimical relation of the accused persons with Rohila. It is contended that at the time of burial of the deceased, the villagers were present and till the completion of inquest report there was no specific complaint with the P.S.
7. Mr. Basu contends that the dead body was highly decomposed and Autopsy Surgeon opined that it appeared to be a case of homicide. It is contended that visceras were sent for chemical examination and the opinion of the Autopsy Surgeon was kept pending till the receipt of such 4 report. It is submitted that the report on examination of visceras was not produced and there was no final opinion of the Autopsy Surgeon regarding the nature of death of Rohila. Mr. Basu contends that the Autopsy Surgeon did not record that the injuries were ante mortem.
8. Mr. Basu contends that as regards the appellants other than the husband of the victim, there is no evidence to show that they were in any way involved in the commission of the alleged offence. It is contended that the Autopsy Surgeon did not state that the injuries were sufficient in the ordinary course of nature to cause death.
9. Mr. Basu has referred to the decision reported in 2007 (15) SCC 773 (Suraya Yoganand alias Chitti - Vs - State of Andhra Pradesh); AIR 1983 (SC) 66 (Mayur Panabhai Shah - Vs - State of Gujarat)
10. Mr. Ganguly appearing on behalf of the State submits that the husband of the victim came to the house of the informant and took back Rohila with him to his house. Mr. Ganguly thus contends that there is evidence to show that the deceased was last seen with her husband, that is, Sannu. Mr. Ganguly emphasized on the concept of last seen together. Mr. Ganguly contends that as per opinion of the doctor there was fracture of hyoid bone and it occurs only in case of throttling. Mr. Ganguly submits that the I.O. did not get report on the examination of visceras.
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11. The Learned Judge passed the impugned judgement holding that the accused persons completed the act of burial of the dead body of Rohila hurriedly without informing the father of Rohila. The Learned Judge held that the facts and circumstances of the case spoke unmistakably that the accused persons knew that Rohila was murdered by them and they intentionally buried the dead body of Rohila hurriedly in order to remove the evidence of murder. The Learned Judge further held that the evidence on record indicated that up to the time of 'salish' P.W. 2, P.W. 3, P.W. 6 and P.W. 7 were in suspicion as to unnatural death of Rohila and they suspected the accused Sannu and his family members for murder of Rohila as they were not allowed to see the dead body of Rohila. The Learned Judge under the circumstances held that there was no unnatural element in the holding of 'Salish'. The Learned Judge thus held on the basis of evidence on record that accused persons caused the murder of Rohila Khatun by way of throttling and after committing murder they threw the dead body of Rohila in the water of Jenala Purti.
12. P.W. 1 who lodged the First Information Report has stated that on receipt of the post mortem report and on perusal of the opinion of the medical officer that death in question was homicidal in nature, he registered a suo motu case being P.S. case No. 10 dated 10.10.1980 under Section 302/201, Indian Penal Code against the accused persons. 6
13. P.W. 2, Nausad Ali, brother of the deceased, has stated that before marrying Rohila Khatun , accused Sannu married another girl Atu, but, he divorced her; after divorcing Atu, accused Sannu married Rohila Khatun. It is in his evidence that his sister Rohila and accused Sannu were in good relation for about two months of their marriage, but, thereafter accused Sannu was found leaning towards his divorced wife again.
14. P.W. 2 has stated that some days before her death Rohila came to his house and stated that she was not pulling well with her husband; Sannu was called and P.W. 2 tried for settling the matter between them. P.W. 2 has further stated that he entertained Sannu in his house and thereafter Sannu left his house with Rohila at night on the previous day of the death of Rohila. It is in his evidence that on the following day he was informed that the body of a woman was found floating in the tank named Jenala Purti, but he did not go there to see the floating body.
15. P.W. 2 has further stated that he came to know afterwards that his sister Rohila was murdered and he called a 'salish', but, the accused persons did not attend the same; subsequently he reported the matter to the police station and thereafter the dead body was lifted from graveyard and he identified the dead body as that of Rohila. It is in his cross examination that he went to his work and returned therefrom at about 12 noon / 1 P.M. 7 and thereafter he came to learn that dead body of Rohila was buried by many people of the village. It is in his cross examination that when the accused persons did not attend the 'salish' he suspected the accused persons for the death of Rohila.
16. It is significant to note that P.W. 2 wanted to establish that at the time of recovery of the dead body from the tank and subsequent burial he was not present. But he has stated in cross examination that he saw the accused persons from a distance of 8/9 'rahis' to get the dead body of his sister buried. In this connection P.W. 7 has stated that Rohila went to the house of her husband on 30.09.1980 at night and on the next morning he came to learn from Nausad, (P.W. 2) brother of Rohila that the dead body of Rohila was floating in the water of Jenala Purti ; hearing this he went to his school as usual; returning home at about 1 P.M. he came to learn that accused Sannu and the members of his family buried the dead body of Rohila. It is, therefore, clear that on 01.10.1980 in the morning Nausad was well aware of the death of Rohila and he informed P.W. 7 regarding the death of his sister.
17. It is in the evidence of P.W. 5 and P.W. 8 before being declared hostile that Sannu and his mother also came to the tank hearing the news that the dead body of Rohila was found floating in the tank.
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18. P.W. 6 has stated that on the next day at about noon after returning home from work he was informed by Nausad Ali that Rohila was murdered and she was buried. Hearing this he went to the house of accused Sannu, but, none was found there except his mother. In the cross-examination he has stated that it was their impression that the accused persons committed murder of Rohila.
19. P.W. 7 has stated that there was a 'salish' in the village on 01.10.1980 in the evening and in that 'salish' he, the accused persons, and many others of the village were present; a proposal was there in the 'Salish' to the accused persons to give one bigha of land to the father of Rohila, but, this proposal was not accepted finally. It is worth mentioning here that P.W. 2 has stated that the accused did not attend the 'salish', but, P.W. 7 has stated that accused persons and many others were present in the said 'salish'. The evidence of P.W. 7 about the proposal to transfer one bigha of land by the accused persons to the father of Rohila indicates that the accused persons were put under threat and they were pressurized for the transfer of one bigha of land in favour of the father of Rohila. This conduct on the part of the informant and his family members casts a serious doubt in regard to the veracity of the prosecution case.
20. As regards the nature of death of Rohila, P.W. 12, the Autopsy Surgeon, has noted following injuries : -
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"1. Lacerated wounds both ears.
2. Lacerated wound on the tip of the nose.
3. Abrasion on the olecranon process of left elbow.
4. Faint markings seen on the anterior surface of neck.
On dissection hyoid bone seen broken If a man or woman is throttled to death injuries are expected around neck, face and other parts of the head. "
21. P.W. 12 has stated that hyoid bone can be fractured if a man or woman is throttled to death. He has stated that fracture of hyoid bone along with associated injuries mentioned above gave indication or clue of the death having occurred by throttling. He has opined that it appeared to him to be a case of homicide. It is in his evidence that the dead body was highly decomposed and no definite opinion could be given, but suggestive opinion of homicide by throttling was there. He has stated in cross examination that fracture of hyoid bone was not the cause of death because a man could survive with fracture of hyoid bone. He has stated that he did not get the report on examination of visceras of the deceased. From the evidence of P.W. 12 it is clear that his final opinion as to the nature of death was not given. According to P.W. 12 it appeared to be a case of homicide and at the same time because of fracture of hyoid bone there was suggestive opinion of homicide by throttling.
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22. P.W. 12 has stated that before death the victim might have consumed water. The I.O. (P.W. 10) has stated that visceras of the diseased were sent from the hospital and he tried to collect the memo number of the letter under which visceras were sent, but, he could not collect the same. P.W. 10 has further stated that he did not get it clarified from the doctor as to whether the death of Rohila was due to drowning and he made no investigation on the point of drowning. From the evidence it is clear that the dead body was floating in the tank and accused persons were also present there. The members of the family of the deceased had also seen the burial of the dead body in the graveyard. There was no specific complaint till the holding of the inquest. The circumstances, therefore, cumulatively suggest that possibility of death due to drowning cannot be ruled out.
23. It is significant to note that P.W. 2 Nausad Ali lodged the information regarding the death of Rohila on 02.10.1980 on the basis of which the U.D. Case was started. It was alleged in that information that death of Rohila was not under normal circumstances. In that information there was no whisper about the ill relation between Rohila and Sannu or that Rohila was ever subjected to torture in her matrimonial home. There was no specific complaint from the family members of the informant regarding the death of Rohila. After the inquest the post mortem examination was held and after getting the copy of post mortem report, P.W. 1 suo motu lodged the F.I.R. on 10.10.1980. It is in the evidence of P.Ws that they had the impression 11 that the accused persons had committed the murder of Rohila. This impression or suspicion by itself, is not sufficient to substantiate the allegation under Section 302/201/34, Indian Penal Code. The evidence of the P.W.s at the time of trial regarding the ill treatment meted out to Rohila in her matrimonial home, being made for the first time at the time of trial, indicates embellishment and fabrication.
24. The prosecution case rests on the theory of last seen together as submitted by Mr. Ganguly. This hypothesis of last seen together, by itself, in absence of corroborative evidence, in our considered view, is not sufficient to form the basis of conviction. It is found from evidence that from the alleged time of taking the victim by the accused Sannu from her father's house till the time of recovery of the dead body from the tank, there is no link evidence which could point at the guilt of the accused persons. Not only that, from the evidence it is clear that the accused persons and the members of the family of the informant along with other villagers were present at the time of burial, and till the time of inquest there was no specific complaint from anybody. Raisuddin, P.W. 3, although signed the inquest report did not lodge any specific complaint. This abstinence on the part of the informant's family casts serious doubt as to the veracity of the prosecution case.
25. The I.O. P.W. 10 has stated that the information regarding the unnatural death of Rohila given by Nausad was not sufficient to constitute cognizable 12 offence and, as such, no specific case was started against the accused persons. Mere suspicion is not sufficient to bring home the charge against the accused persons The evidence of P.W.s that Rohila was last seen together with Sannu, therefore, in absence of other corroborative and link evidence, would not come in the aid of the prosecution.
26. After considering the submission of the Learned Counsel appearing for the parties and on perusal of evidence on record we are of the considered view that there is no evidence that the accused persons committed murder of Rohila. The Learned Trial Judge was not justified in passing the impugned judgement of conviction and sentence.
27. We, therefore, set aside the impugned judgement. The appellants are acquitted of the charges. The appeal is allowed.
28. Let a copy of this judgment along with the lower court records be sent to the learned Court below immediately.
29. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J. ) Md. Abdul Ghani, J.
I agree, 13 (Md. Abdul Ghani, J. )