Calcutta High Court
Jitu Sk., Jhantu Sk. And Mansoor Barajee vs State Of West Bengal [Alognwith C.R.A. ... on 3 August, 2005
Equivalent citations: 2006(1)CHN337
Author: Pranab Kumar Deb
Bench: Pranab Kumar Deb
JUDGMENT Alok Kumar Basu, J.
1. In a case of rape with murder, Munsi Abdul Kasem @ Paltu, Jitu Sk., Jhantu Sk. and Mansoor Barajee were convicted both under Section 376(g) and Section 302/34 of the Indian Penal Code and all of them were sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/- each both under Section 376(g) and under Section 302/34 of the Indian Penal Code by the learned Additional Sessions Judge, 3rd Court, Murshidabad in connection, with Sessions Trial No. 1st May, ,2003 corresponding to Sessions Case No. 231 of 2002.
2. Jitu Sk., Jhantu Sk., and Mansoor Barajee preferred Criminal Appeal No. 502 of 2003 from jail while Munsi Abdul Kasem @ Paltu preferred Criminal Appeal No. 5 of 2004 from jail and since both the appeals are directed against a common judgment, we have taken both the appeals together for hearing and disposal.
3. The fact of the prosecution case in brief was that on 20th October, 2001 daughter of Khodeja Bibi of village Patikabari under P. S. Nawda in the district of Murshidabad had left her house at 3.30 p.m. in the afternoon for the purpose of getting some old garments stitched by appellant Munsi Abdul Kasem who was a tailor by occupation with the knowledge of her mother. The said daughter of Khodeja Bibi did not come back to her residence within a reasonable time which prompted her mother and other relatives and neighbours to inquire regarding the whereabouts of the said daughter coming at the residence of Munsi Abdul Kasem. Munsi Abdul Kasem evaded positive reply to the quarries of the mother and other relatives and the whereabouts of the girl could not be traced out in course of search and subsequently, on the next morning, a neighbour informed the mother that deadbody of the girl was found in a plantain garden near the house of Munsi Abdul Kasem.
4. On discovery of the deadbody of her daughter, Khodeja Bibi lodged the written complaint at the local P. S. narrating the relevant fact and pointing out her finger of suspicion towards the appellant Munsi Abdul Kasem.
5. On receipt of the written complaint from the mother of the victim, the police started investigation and in course of investigation, inquest was held over the deadbody and it was prima facie established that the victim girl was ravished before murder through strangulation by a scarf. Arrangement was also made for post-mortem examination of the deadbody. Investigating Officer examined the mother of the victim girl along with other available witnesses and made seizure of some articles from the place of occurrence.
6. Munsi Abdul Kasem was arrested from his residence and following him confessional statement the other three appellants were also arrested and on completion of investigation, chargesheet was submitted against all the appellants under Section 376(g) and under Section 302/34 of the Indian Penal Code.
7. The prosecution side, during trial, produced eighteen witnesses to substantiate the charges against the appellants and those witnesses included mother of the victim girl, some relatives, neighbours, one Judicial Magistrate and the Investigating Officer. It is pertinent to mention that the doctor who conducted post-mortem examination was not examined and a carbon copy of the post-mortem examination report was produced by the I.O. during trial.
8. The learned Trial Judge, after considering the prosecution evidence and after considering submission of the prosecution and the defence Counsel, found all the appellants guilty of both the charge of gang rape as well as the murder of the victim girl and he accordingly, recorded his order of conviction and sentence.
9. On perusal of the judgment of the learned Trial Judge, it appears that the learned Trial Judge accepted the prosecution case on the ground that a complete chain of circumstances was fully established from the evidence-on-record which taken together unerringly proved the guilt of the appellants. The learned Judge placed his reliance on the testimony of mother of the victim girl and other relatives and neighbours to hold conclusively that the victim girl went to the resident of Munsi Abdul Kasem and subsequently she was found murdered and ravished. The learned Judge, from the inquest report and also from other evidence available through the statement of witnesses concluded that since the deadbody was found adjacent to the house of Munsi Abdul Kasem and since it was available from evidence that Munsi Abdul Kasem was alone in his house at the relevant time and since the victim girl had gone to the house in connection with stitching of her old garments, in all probability, it was Munsi Abdul Kasem who finding the victim girl alone along with others, committed rape on her and thereafter murdered her by strangulation.
10. The learned Trial Judge, apart from the circumstantial evidence as available from the statement of different witnesses and inquest report, relied heavily on the confessional statement of Munsi Abdul Kasem and the learned Judge was of the view that the evidence placed before him by the prosecution in the form of statement of witnesses built up a complete chain against the appellant Munsi Abdul Kasem which was again sufficiently corroborated by his confessional statement which was recorded by a learned Judicial Magistrate examined by the prosecution during trial.
11. The learned Judge, relying on the confessional statement of Munsi Abdul Kasem, found no difficulty to come to the conclusion that the other three appellants also participated in the commission of murder and rape and hence, the learned Judge recorded his order of conviction.
12. Appearing for appellant Munsi Abdul Kasem Mr. Ashim Kr. Roy has strongly challenged the order of conviction and sentence contending inter alia that the learned Trial Court had gone beyond the evidence-on-record and recorded the order of conviction merely acting on conjecture and surmises and without looking for legal evidence.
13. Mr. Roy submits that his first point of attack would be that so far evidence-on-record is concerned, in this particular case, there was no evidence at all before the Court to support the prosecution case that the victim girl was either raped or murdered. Mr. Roy contends that undisputedly in this case the victim girl being dead, there could not be any direct and credible evidence regarding the allegation of rape save and except the medical report of the doctor, but, prosecution did not care to examine the doctor who conducted the postmortem examination and who submitted report, although, he was cited as a witness in the chargesheet and although there was no evidence that he was dead or incapable of attending the Court as witness.
14. Mr. Roy submits that even without examining the doctor, the prosecution could have produced an authentic copy of the post-mortem report through a competent man of the hospital, but. in that regard too, prosecution showed total indifference as it is available from record that only an unauthenticated carbon copy was produced by the Investigating Officer and surprisingly enough without looking for the relevant law, the Trial Court got it marked as an exhibited document. Mr. Roy in this connection has drawn our attention to the decision of the Hon'ble Supreme Court reported in the case of Vijendra v. State of Delhi, . Mr. Roy therefore, submits that when there is no evidence regarding the allegation of murder and rape, the very basis of the prosecution case appears to be weak and not acceptable.
15. Mr. Roy in second part of his argument contends that the learned Trial Court heavily relied on the alleged confessional statement of Munsi Abdul Kasem to substantiate his order of conviction, but, on careful examination of the confessional statement itself along with the examination of the learned Judicial Magistrate who recorded the confessional statement, it would appear that the learned Judicial Magistrate failed to comply with the mandatory requirements of Section 164 of the Criminal Procedure Code since he did not assure the deponent while recording his statement that he would not be sent back to police custody even if he declined to make any statement.
16. Mr. Roy submits that the statement of the appellant cannot be called a confessional statement at all since the deponent did not confess the alleged guilt in any way directly or indirectly through his statement and in this regard Mr. Roy also submits that one of the prerequisites of a confessional statement is that it must be voluntary in nature, but, in this case from the surrounding circumstances it appears that the deponent gave a statement only under pressure from police and that being the position, no conclusion can be drawn on the basis of such confessional statement and in this regard Mr. Roy has relied on a decision reported in 1995 Vol. 2 SCC page 323.
17. In his final part of submission, Mr. Roy has argued that undisputedly the prosecution wanted to bank on circumstantial evidence to bring home the charges against the appellant Munsi Abdul Kasem and it is needless to mention that in such a situation, prosecution was duty bound to present such a chain of circumstances which taken together would lead us to only one hypothesis which would be compatible with the guilt of the accused. Mr. Roy submits that there is no convincing evidence to indicate that the victim girl at all met the appellant at his residence on the relevant date and there is no evidence at all that the victim girl was found in the company of the appellant on the relevant date. Mr. Roy contends that from the evidence of the mother and other witnesses it is available that victim girl left the house to go to the house of the appellant, but, there is no evidence that she ultimately reached the destination and since there is a gap in between the journey and the destination, and since it has not been filled up successfully by the prosecution by leading convincing and credible evidence, it cannot be stated that appellant had any involvement either behind the alleged commission of rape or murder.
18. Thus, summing up his submission, Mr. Roy urges that in a case where there is no legal proof about the commission of murder and rape, where there is no evidence to link up the chain of circumstances and where the so-called confessional statement suffers from inherent defect and which was not voluntary at all, there is little scope to record any order of conviction and it is well settled principle of law that a legal conviction can be passed only on legal proof and not on conjecture and surmise.
19. Mr. Ganguly, appearing for the remaining three appellants in connection with Criminal Appeal No. 502 of 2003, in his brief submission has placed before us the relevant evidence relating to his client which is in the form of the alleged confessional statement of appellant Munsi Abdul Kasem. Mr. Ganguly contends that on perusal of the alleged statement of Munsi Abdul Kasem, it is crystal clear that the said statement was an exculpatory confessional statement and naturally, in view of Section 3 and Section 30 of the Indian Evidence Act, 1872, such a self-exculpatory statement can never be used against the co-accused. Mr. Ganguly in this context has relied on the decision of Biswanath Aggarwal v. Meena Gupta and Ors., reported in 2000 CCr LR (SC) page 284. Mr. Ganguly submits that apart from the self-exculpatory confessional statement of Munsi Abdul Kasem, there is no whisper in the entire record implicating any of the appellants.
20. Mr. Goswami appearing for the State respondent submits that the prosecution case presents an unfortunate episode relating to murder of a young girl and that is not all, the young girl before meeting an untimely death in the hand of her assailants was also subjected to the cruel act of the assailants in the form of rape. Mr. Goswami contends that in a case of this nature it is hardly expected that prosecution would come with direct evidence and naturally, the Court is to scan the circumstantial evidence placed before it and if the Court is satisfied from the circumstantial evidence that really a chain of circumstances had been built up with convincing piece of evidence leading to the only conclusion pointing out the guilt of the appellants, there should not be any hesitation to accept the prosecution case and to record the order of conviction. Mr. Goswami contends that the Trial Court acted within the parameter of law and placing reliance on the circumstantial evidence, the Trial Court found no difficulty to accept the chain of circumstances established against the accused persons.
21. Mr. Goswami contends that from the evidence of mother, sister and neighbour it is available that the victim girl left her house to go to the house of Munsi Abdul Kasem. Mr. Goswami contends that it is available from evidence that Munsi Abdul Kasem was alone in his house since his wife was absent. Mr. Goswami contends that the deadbody was found at a place which was in close proximity to the house of Munsi Abdul Kasem. Mr. Goswami submits that Munsi Abdul Kasem gave evasive reply to the quarries made by the relatives of the victim girl regarding the whereabouts of the girl and that apart, Munsi Abdul Kasem was found absent at his house soon after the occurrence. Mr. Goswami contends that these are the complete chain of circumstances established from the evidence pointing out the only hypothesis that Munsi Abdul Kasem was one of the participants in the dastardly act of murder and rape. Mr. Goswami submits that apart from the chain of circumstances established by the prosecution, the prosecution is also equipped with the confessional statement of Munsi Abdul Kasem which clearly indicated that Munsi Abdul Kasem in a company of other appellants committed rape on the victim girl and thereafter to conceal their crime killed the girl by strangulation. Mr. Goswami submits that there may be some technical defects in recording the confessional statement, but, that cannot be the sufficient ground to discard the confessional statement when the learned Judicial Magistrate deposed before Trial Court that the deponent voluntarily gave the statement.
22. Mr. Goswami submits that from the confessional statement of Munsi Abdul Kasem, it is true, there is some clement of self-exculpatory statement, but, considering the fact and evidence as a whole, the Trial Court made no mistake in fact or law in recording his order of conviction against all the appellants and hence, there appears no merit in both the appeals.
23. We are in total agreement with the sentiment and anguish expressed by Mr. Goswami while supporting the order of conviction and sentence keeping in view the unfortunate background of the fact. We are equally aware of the legal position that whatever grave the prosecution charge might be and whatever heinous the crime might appear to be a Court of law can book a culprit only after being satisfied with legal evidence brought against him by the prosecuting agency.
24. We have carefully examined the entire evidence-on-record and we have carefully considered the submissions of both Mr. Roy and Mr. Ganguly as well as Mr. Goswami in the background of fact and evidence on record.
25. We are very much disturbed to notice that in this case no legal evidence was produced to support the basic fact regarding murder and rape of the unfortunate girl. The prosecution side not only failed to produce the doctor who conducted post-mortem examination for his substantive evidence, but, also failed even to produce an authentic copy of the post-mortem report. Naturally, having regard to the ratio of decision reported in the case of Vijendra v. State of Delhi (supra), we are legally bound to lend support to the contention of Mr. Roy that in this case there is no legal proof about the murder and rape.
26. It is true that even in absence of post-mortem report or in absence of substantive evidence of the doctor, a legal conclusion can be drawn about the murder or rape provided there is strong and credible direct evidence. But, in this case so far the allegation of rape is concerned without the help of medical report, we are really perplexed how to support, the prosecution allegation regarding the charge of rape.
27. From the evidence on record we find that mother, sister, brother and a neighbour of the victim girl deposed about departure of the victim girl from the house with the view to reach the house of the appellant Munsi Abdul Kasem, but, we do not get any convincing evidence from the prosecution side to hold that the victim girl actually reached the house of Munsi Abdul Kasem on that relevant date.
28. Since we did not get the benefit of looking at the legal evidence regarding murder of the victim girl, we cannot get any exact time of such murder and naturally, when there is no evidence to indicate when the victim really reached the house of Munsi Abdul Kasem, it is not possible to make any conclusion that since the deadbody was found in the vicinity of the house of Munsi Abdul Kasem, Munsi Abdul Kasem can be made liable for the commission of murder in absence of any credible, direct or circumstantial evidence.
29. The learned Trial Court mainly relied on the confessional statement of Munsi Abdul Kasem to support his order of conviction, but, when we do not get any other supporting evidence, we are to evaluate the confessional statement more critically.
30. From the confessional statement itself we find that it was not recorded in accordance with mandatory legal provision, and that apart, we are really in doubt about its true voluntary nature. Again, on careful examination of the confessional statement, we are also in great doubt whether the said statement can be called really a confessional statement since the deponent did not implicate himself with the commission of the crime.
31. Mr. Goswami submits about the alibi of the appellant Munsi Abdul Kasem and also about his absence from the place of occurrence, but, we find that in this case there was practically no alibi of the appellant Munsi Abdul Kasem and the ground of absence is always a weak piece in the chain of circumstances and without any other substantial evidence neither the alibi nor the ground of absence can substantiate the prosecution charge.
32. Thus, after giving our anxious consideration to the evidence on record, we find that there is no legal document to prove the commission of murder and rape and there is no convincing evidence either to support the prosecution case that Munsi Abdul Kasem was in any way involved with the commission of murder and rape.
33. As regards the other appellants, we find that Mr. Goswami is also in a doubt whether self-exculpatory statement of the appellant Munsi Abdul Kasem can really fix any responsibility on these appellants either behind the commission of murder or rape and in view of clear legal provision contained in Section 30 of the Evidence Act, we are of the view that when there is no iota of evidence against three appellants, the self-exculpatory statement of Munsi Abdul Kasem cannot be of any legal help to the prosecution side to connect these appellants in the commission of the crime.
34. To conclude, having regard to the evidence on record and after considering the submissions of all the learned Advocates, we are of the view that in this particular case prosecution side could not produce any tangible or credible evidence either to prove the charge of gang rape or the charge of murder levelled against the appellants and that being the position, we cannot support the order of conviction and sentence recorded by the learned Trial Court against the appellants.
35. We, therefore, find sufficient merit in both the appeals and we allow both the appeals.
36. The order of conviction and sentence recorded against all the appellants are hereby set aside.
37. All the appellants are, therefore, found not guilty under Section 376(g) and Section 302/34 of the Indian Penal Code and they stand released forthwith if they are not wanted in connection with any other case.
38. Send a copy of this judgment to the Superintendent of Jail/ Correctional Home where the appellants are lodged for their immediate release.
39. Send a copy of this judgment and order to the learned Trial Court at once along with LCR.
Pranab Kumar Deb, J.
I agree.