Calcutta High Court (Appellete Side)
Dr. Subrata Das & Ors vs The State Of West Bengal on 17 May, 2013
Author: Indira Banerjee
Bench: Indira Banerjee, Kanchan Chakraborty
IN THE HIGH COURT AT CALCUTTA
(CRIMINAL APPELLATE JURISDICTION)
(APPELLATE SIDE)
C.R.A. No. 323 of 2008
In the matter of
DR. SUBRATA DAS & ORS.
Vs.
THE STATE OF WEST BENGAL
With
C.R.A. No. 324 of 2008
In the matter of
ADITI KANJILAL
Vs.
THE STATE OF WEST BENGAL
With
C.R.A. No. 354 of 2008
In the matter of
DR. KOUSHIK CHAKRABORTY & ANR.
Vs.
THE STATE OF WEST BENGAL
BEFORE:
The Hon'ble Justice INDIRA BANERJEE
AND
The Hon'ble Justice KANCHAN CHAKRABORTY
For the Petitioner : Mr. Sekhar Basu.
Mr. Milon Mukherjee.
Mr. Y.Z. Dastoor,
Mr. K Mukherjee,
Mr. K. Gupta,
Mr. S. Datta,
Mr. S. Santra,
Mr. S. Bhagat
For the State : Mr. Manjit Singh,
Mr. Arijit Ganguly
Heard on : 18.03.2013, 19.03.2013, 20.03.2013
Judgment on : 17.05.2013
INDIRA BANERJEE, J. : These three appeals are against the
judgement and order dated 9th April, 2008 passed by the learned
Additional Sessions Judge, Bankura, convicting all the appellants in
these appeals under Sections 302, 201 and 34 of the Indian Penal Code
for murder of Dr. Swapan Kanjilal, hereinafter referred to as 'the
deceased', and causing disappearance of evidence, in furtherance of a
common intention. The appellants have each been sentenced to suffer
rigorous imprisonment for life, and to pay fine of Rs.10,000/-.
On or about 16th September, 1990 at about 2:35 p.m., the
deceased, his wife Smt. Aditi Kanjilal, being the appellant in C.R.A.
No.324 of 2008, Dr. Subrata Das, his wife Smt. Sanghasree Das and
his brother-in-law Sri Pritibrata Tarafder (wife's brother) being the
Appellant Nos. 1, 2 and 3 respectively in C.R.A. No. 323 of 2008
accompanied by Sangita Das, the seven/eight year old minor daughter
of Dr. Subrata Das and Smt. Sanghasree Das and the appellants in
C.R.A. No.354 of 2008, Dr. Koushik Chakraborty and his friend Pulak
Roy went to Pareshnath Ferry Ghat under Ranibandh Police Station
near Mukutmonipur for an outing, after crossing the Kanshabati Dam
in a boat. The deceased and some of the appellants consumed alcohol.
Except for Pulak Roy, i.e. appellant No.2 in C.R.A. 354 of 2008,
who stayed back at the bank with seven/eight year old Sangeeta,
because of a bandaged leg, as he had had an operation, all the
appellants were enjoying themselves in knee deep water. The deceased
was, however, swimming in the dam some distance away from the
appellants.
It was reported that at about 15:00 Hours (03:00 p.m.) the
deceased, Dr. Swapan Kanjilal had drowned in the dam water. The
body of Dr. Kanjilal was recovered on 19th September, 1990 at about
10:45 a.m. from the very place where he was reported to have drowned.
The deceased was a surgeon attached to the Bankura Sadar
Medical College and Hospital, hereinafter referred to as 'BSMCH'. The
evidence on record reveals that a lot of people were present at the time
when the body was brought out of the water, including doctors of
BSMCH. Immediately after the body was recovered, an inquest was
conducted. After the inquest, garlands and flowers were placed on the
body of the deceased.
In the evening a post mortem was conducted. On the next day,
i.e., 20th September, 1990 one Gangaprasad Sil, Sub Inspector, Officer-
in-Charge, Ranibandh Police Station, lodged a First Information Report
alleging that the autopsy surgeon Dr. J.N. Das, Professor and Head of
the Department, Forensic Science and Medicine of BSMCH had opined
that the death of the deceased was due to manual strangulation, ante
mortem and homicidal in nature.
In the First Information Report it was alleged that the respective
appellants in these three appeals had jointly murdered the deceased
and thrown his body into the dam, causing disappearance of evidence,
but shouted for help to give the impression that this was a case of
drowning.
The inquest was conducted by the Officer-in-Charge, Ranibandh
Police Station at Pareshnath Ghat. From the Inquest Report, it appears
that the dead body of the deceased was recovered from the dam waters,
about 70 ft. to the north-east of an island. The inquest report reveals
that there were some abrasions on the skin but no injury marks. The
deceased had his spectacles on, when he was brought out.
The investigation was taken over by the Criminal Investigation
Department. The charge sheet was submitted charging these
appellants inter alia under Sections147, 149, 302, 201, 34 of the
Indian Penal Code with inter alia murder of the deceased and causing
disappearance of evidence in furtherance of common intent, and trial
commenced. In course of trial, 47 witnesses were examined on behalf
of the prosecution of whom 10 were declared hostile. Amongst the
Prosecution Witnesses there were doctors of BSMCH, including doctors
present at the time of the post mortem, the autopsy surgeon who
conducted the post mortem, boatmen and local inhabitants of the area
where the incident took place, two of the divers who fished out the
body of the deceased, two maid servants, one whom had worked for the
deceased and the other for Dr. Subrata Das and his family and
different policemen.
On behalf of the defendants, 3 witnesses were examined. The
accused appellants were all examined under Section 313 of the
Criminal Procedure Code. The accused appellants all denied their guilt.
On the fateful day on which Dr. Kanjilal died, he was scheduled
to assist Dr. Debarata Dey, his superior at the BSMCH, in an operation
at the Memorial Nursing Home. It was thus the case of the prosecution
in the trial, that the deceased must have been forcibly taken to the
Kangshabati Dam area, against his wishes, with a view to kill him, by
making his death appear accidental, because the deceased could not,
have agreed to go for an outing, when he had a professional
commitment on that very day, in the afternoon. Accordingly, before the
Trial Court, the prosecution argued that the appellants, with the
assistance of the wife of the deceased, Mrs. Aditi Kanjilal, (appellant in
C.R.A. 324 of 2008) motivatedly compelled the deceased to go for the
outing, with common intent to kill him.
Dr. Debabrata De gave oral evidence as the first Prosecution
Witness (P.W. 1). The P.W. 1 has deposed that the deceased was a
Basic Teacher at the Department of Surgery, BSMCH, i.e. the same
department in which the P.W.1 was attached and that he assisted the
P.W. 1 in his private cases, most of which were at the Memorial
Nursing Home. The deceased was to assist the PW1 in an operation
on 16th September, 1990 in the afternoon. While the petitioner was
waiting for the deceased, he got the message that the police had
telephoned his residence to inform him that Dr. Subrata Das, the
Appellant No.1 in C.R.A. 323 of 2008 was trying to contact him to
convey the message that the deceased had drowned.
Nothing further has emerged from the evidence of this witness,
except that this witness was present at the time when the body of the
deceased was recovered and that the deceased was wearing briefs and
still had his spectacles on.
There is nothing in the evidence of P.W. 1 or any other witnesses
to support the case of the prosecution that the appellants had forced
the deceased to go to the Kangshabati Dam area with them on the
fateful day when the deceased lost his life. A careful scrutiny of the
evidence on record including the evidence of P.W. 1 Dr. Dey indicates
that the operation which the deceased had to assist was scheduled for
the late afternoon i.e. 04:00 o'clock or so. The outing to Pareshnath
Ghat was planned in such a way, that the deceased could have
reported to the Memorial Nursing Home at around 4:00 p.m. if not
earlier, but for the unfortunate incident.
The deceased and the appellants had planned to leave the dam
area by 3:40 p.m. latest and had accordingly obtained permission to
remain in the dam area only till 3:40 p.m.. The travelling time from the
dam project area to Bankura was about 15 minutes by car, as
indicated in the evidence of P.W. 27, the photographer, who had been
requisitioned to take photographs of the dead body of the deceased at
Pareshnath Ferry Ghat. But for the unfortunate incident the deceased
might have left the dam area at 3:35 - 3:40 p.m. and arrived at the
Memorial Nursing Home well in time.
The evidence on record reveals that the incident of drowning took
place at around 3:00 - 3:15 p.m. The news of the drowning must have
taken some time to travel to the P.W. 1. The documentary and oral
evidence indicates that the deceased was expected at the Memorial
Nursing Home at around 4:00 p.m..
The evidence of the P.W. 1 does not show that he waited for the
deceased for an unusually long time. It may, thus, reasonably be
inferred that, soon after the P.W. 1 had started waiting for the
deceased, he heard that the deceased had drowned.
P.W. 2 Shukla Das and P.W. 3 Chinta Das, maidservants
working for Dr. Subrata Das and the deceased respectively, have been
examined by the Prosecution in an attempt to make out a case of a love
affair between Mrs. Aditi Kanjilal and Dr. Subrata Das with a view to
bring out a motive for murder of the deceased and also to establish that
the deceased was reluctant to go out with the appellants. Both these
witnesses were declared hostile. Nothing significant has emerged from
the evidence of these two witnesses.
In cross-examination by the learned Public Prosecutor, P.W. 2 a
part-time domestic help working at the residence of Dr. Subrata Das,
only admitted that she had told the Investigating Officer that the
deceased and his wife often visited the house of Dr. Subrata Das
(appellant No.1 in C.R.A. 323 of 2008) and that Mrs. Aditi Kanjilal
(appellant in C.R.A. 324 of 2008) visited the residence of the Dr.
Subrata Das more often than the deceased. In cross-examination by
the defence, this witness deposed that she was only a part-time help at
the residence of Dr. Das. As part-time help she left at about 10 - 10:30
a.m. in the morning after completing her work and then again worked
from about 5 - 5:30 p.m.. She could not say anything about what her
master and his wife did during her absence.
P.W. 3, a domestic help working with the deceased and his wife,
only deposed that the deceased had gone for a picnic to Mukutmonipur
with Dr. Subrata Das and his family and she later came to know in the
afternoon that the deceased had drowned in an accident. In cross-
examination the P.W. 3 denied having made any statement to the police
that Dr. Subarata Das, the appellant No.1 in C.R.A. 323 of 2008, used
to visit the house of the deceased in his absence and meet his wife
inside a closed room. She also denied having told the Investigating
Officer that Dr. Kanjilal had no intention of going for the picnic.
The two domestic servants have denied having made any
statement to the police as suggested. Statements, if any made to the
police under Section 161 of the Code of Criminal Procedure are, in any
case, not admissible in evidence. Even if it is assumed that any of the
maidservants actually made the statements alleged to have been made
by them, those statements are of no consequence. The statements
would only show that the deceased and his wife knew Dr. Subrata Das
and his family well and they were on visiting terms.
The mere fact that Dr. Subrata Das might have visited the
residence of the deceased in the absence of the deceased or the fact
that Smt. Aditi Kanjilal may have visited the residence of Dr. Subrata
Das unaccompanied by the deceased, can never ever be reason to
assume any special intimacy between Dr. Subrata Das and Smt. Aditi
Kanjilal, and can in no circumstances be a ground of criminal
conviction for murder.
Dr. Subrata Das was a married man with a wife and child at
home. No one has stated that Smt. Aditi Kanjilal visited Dr. Subrata
Das in the absence of his wife and child. The deceased being a busy
doctor, it could not have been possible for him to accompany his wife
wherever she went. It is only to be expected that his wife, Smt. Aditi
Kanjilal would sometimes have to visit neighbours and friends alone.
One of the maidservants, Chinta Das, allegedly told the police
that Dr. Subrata Das also visited the residence of the deceased, when
the deceased was not at home and sometimes the door was closed
when Dr. Subrata Das and Smt. Aditi Kanjilal talked to each other.
In Court, the P.W.3, Chinta Das categorically denied having told
the police that Dr. Subrata Das visited the residence of the deceased in
the absence of the deceased or met his wife Smt. Aditi Kanjilal in a
closed room. She also denied having made any statements to the police
to the effect that the deceased did not want to go for the outing. The
alleged statements under Section 161 of the Criminal Procedure Code
cannot, therefore, be relied upon.
Even assuming, for the sake of argument, that Dr. Subrata Das
visited the residence of the deceased in his absence and spoke to his
wife Smt. Aditi Kanjilal in a closed room, it is preposterous to draw any
inference of criminal conspiracy between Dr. Subrata Das and Smt.
Aditi kanjilal in the absence of anything more. There is not a whisper of
the frequency or duration of the visits allegedly made by Dr. Subrata
Das to the residence of the deceased, in his absence. There is not a
whisper of when Dr. Subrata Das last visited the residence of the
deceased in his absence. Chinta Das, the maid, allegedly stated that
the door was sometimes closed, which suggests that the door was at
other times open.
The purported statement under Section 161 of the Criminal
Procedure Code of Smt. Chinta Das, which was in any event denied in
Court, does not reveal any attempt on the part of the investigating
officer to ascertain the circumstances in which the door was sometimes
closed when Dr. Subrata Das visited the residence of the deceased.
When there are visitors and food is being cooked, doors are often kept
closed to keep out smoke, the pungent choking scent of certain spices
and condiments, the sound of grinding, sizzling, frying, hissing of the
pressure cooker etc. Similarly, doors are also kept closed when utensils
or clothes are washed as otherwise voices can get drowned in the noise
of running water falling into metal and other containers, clanking and
clattering of utensils etc.
There can never be any criminal conviction based on isolated,
truncated, unexplained statements without examining the context in
which the statements were made, more so when the statements were
made in answer to questions by the police at the time of interrogation.
The statements would necessarily have to be construed in the context
of the questions which were answered and not in isolation.
There is not a scrap of evidence to show that the relationship of
the deceased with his wife was strained. On the other hand there is
evidence of normal husband wife relationship. The fact that the
deceased took out an insurance policy making his wife the nominee
shortly before the unfortunate incident, as also letters seized from the
residence of the deceased, which were produced in course of trial show
that the relationship between the deceased and his wife was normal.
There is no evidence at all of any enmity between Dr. Subrata
Das and the deceased or of any special intimacy between Mrs. Aditi
Kanjilal and Dr. Subrata Das, to lend support to the case of the
prosecution that Mrs. Aditi Kanjilal conspired with Dr. Subrata Das
and Dr. Kaushik Chakravarty to kill her own husband.
Moreover, it is incredible, if not preposterous, that Dr. Subrata
Das should in conspiracy with Smt. Aditi Kanjilal, kill her husband in
front of his own wife, his wife's brother and his own seven/eight year
old daughter, who was obviously old enough to perceive that her father
was throttling a man and pushing him into the water. Significantly, the
child was never examined by the Investigating Officer.
P.W. 5, a Havildar posted at BSMCH, was examined on behalf of
the prosecution. However, nothing significant has emerged from his
evidence. He merely deposed that their outpost was situated in front of
the residence of the deceased. This witness stated that he knew the
deceased and his wife, but did not know if any other doctor visited the
residence of the deceased or not. He claimed that he had last seen the
deceased in the morning on 16th September, 1990. On that day four
doctors, including the deceased and some ladies went for a picnic.
The learned Trial Court very rightly found that the proseuction
had not been able to adduce any evidence either documentary or oral
to prove that there was any love affair or even noticeable intimacy
between Smt. Kanjilal and Dr. Subrata Das.
There were no eyewitnesses to the incident, which had occurred
on 16th September, 1990. The prosecution had examined numerous
boatmen and local residents, but none of them have stated anything
that supports the case of the prosecution.
About 12 boatmen or local people were examined as Prosecution
Witnesses. P.W. 4 a boatman who had allegedly been at the Pareshnath
Ferry Ghat at about 3 p.m. has deposed that he found some people
shouting and some boatmen searching for something. There were two
women and a child. They told him that they had come for an outing
and one amongst them, who was swimming in the dam had drowned.
This witness further deposed that the appellants were smelling of liquor
and that this witness noticed that they were in mental agony. This
witness was also declared hostile and subjected to cross-examination.
P.W. 6 denied that he was a boatman but contended that he was
a day labourer. He denied having searched for anyone in the water.
This witness was also declared hostile by the Public Prosecutor. In
cross-examination, he denied having ever been interrogated in
connection with the death of the deceased.
P.W. 7 stated that he was an agricultural labourer, who also
worked as a boatman when he was not engaged in cultivation work.
He, however, denied being present at the ferry ghat on 16th September,
1990 and denied having searched for anyone. He was also declared
hostile. In cross-examination he denied having made any statement to
the police.
P.W. 11, a resident of Pareshnath was also declared hostile and
nothing emerges from his examination or cross-examination. He denied
that he made statements to the police.
P.W. 15, a boatman by profession has deposed that he was a
boatman at Pareshnath Ferry Ghat. He further deposed that on 16th
September, 1990 four men along with two women and a child cried out
to him saying "Oh boatman come sharp and save us". P.W. 15 has
stated that he rushed to that place but did not see anything. The
persons who had shouted for help told him that one of their group had
drowned in the water of the dam. The P.W. 15 along with others
searched for that person but could not trace him. P.W. 15 was not able
to identify the persons who were on the dock. The evidence of P.W. 15,
a boatman who was not declared hostile, does not lend support to the
case of prosecution. Rather this witness supports the case of the
defence.
P.W. 16, Nitai Mudi, another boatman of Pareshnath Ferry Ghat
deposed that on 16th September, 1990 he was there at the Pareshnath
Ferry Ghat. Some persons who had been bathing in the water cried out
that one of them had drowned. He did not see the man drowning as he
was on a different side of the island, but he searched for the deceased.
In cross-examination he deposed that for two days the body could not
be recovered. The body was ultimately recovered from a spot near the
place which the boatmen had searched. He also deposed that the so-
called island was a rocky slope of the hills and there was embankment
on the river-bed.
P.W. 17, another boatman also deposed that some persons from
Dugri island cried out for help, shouting "save us, save us". This
witness along with other boatmen rushed to the island with their boats.
There were men and women. The boatmen reached at about 3 - 3:30
p.m. The persons told the boatmen that one of their group had
drowned. The boatmen then searched for the body, but in vain. This
witness denied having seen any one throw any body into the water.
This witness was also declared hostile.
In cross-examination this witness denied that he was examined
by the Investigation Officer. He also denied having told the police that
he had seen the persons who were crying for help, throw some one into
the water. He deposed that he was not present at the time of recovery
of the dead body. The dead body was recovered three days after the
incident, by divers from Kolkata. This witness also stated that the
boatmen who were searching for the body of the deceased, could not
reach the bottom of the river-bed.
P.W. 18, 19 and 22 who claimed to be boatmen were all declared
hostile. P.W. 18 deposed that it was not possible for him to say whether
he carried any passengers of Bankura in his boat. At this stage he was
declared hostile and cross-examined by the learned Public Prosecutor.
In cross-examination he deposed that when he was waiting along with
his boat at Deer Park Ghat, some persons were shouting for a boat
from the small island to go to Pareshnath Ghat. Hearing them
shouting, he came to that small island from Deer Park. This witness
stated that he had been examined by an officer of Ranibandh Police
Station, but he denied having ever been examined by any C.I.D. officer
from Calcutta. He denied having made the statements as suggested in
cross-examination to the police. Nothing significant has emerged from
the evidence of this witness. P.W. 19 another boatman, who claimed
that he along with Pramatha Nath plied a boat from Pareshnath Ghat
to Deer Park and back from Deer Park to Pareshnath Ghat, stated that
he did not carry any doctors to the small island. He also denied having
been examined by any police officer of Ranibandh Police Station or by
any C.I.D. Officer. P.W. 22 stated that he was not there at the
Pareshnath Ghat on the date of the incident. He stated that he did not
ply his boat on that day. He also denied that he had been examined by
the police. He denied having made any statement to the police.
P.W. 35, Gaju Mahato, a boatman deposed that on 16th
September, 1990 when he, Tarani Bagdi and Kartick Singh were sailing
their boat, he heard that a person had drowned. He claimed to have
helped in searching the drowned person. In cross-examination he
deposed that divers dived into the water to search out the body. Some
persons standing on boats, were trying to help in searching for the
body by pushing logs into the water. He could not, however, recall
whether he had told the Investigating Officer that one person was
swimming and others were standing in knee deep water deep splashing
water at each other and that after a while they realized that a person
had drowned. He could not recollect details of the incident. He could
not recollect what exactly he had stated to the police.
P.W. 30, Kartick Singh, also a boatman deposed that he plied a
boat at the Pareshnath Ghat assisted by Gaju and Turani Bagdi. He
further deposed that on 16th September, 1990 when he was returning
after watching a football match, he heard that a doctor had drowned in
the dam. He deposed that the boat of one Gokul Singh had been used
by the doctors to go to the island. Gokul Singh has apparently not been
examined. This witness claims to have witnessed the recovery of the
dead body of the deceased after about three days. This witness was a
signatory to the seizure list. This witness deposed that he was told by
other boatmen that many boatmen had tried to locate the dead body of
the deceased on the day after the incident by using bamboos and
Eucalyptus logs. He opined that it was quite possible that a log might
have slipped from the hands of unskilled persons and fallen into the
dam.
P.W. 8 is a witness to seizure of some documents from Memorial
Nursing Home. Those documents establish nothing except that the
deceased was due to assist Dr. Debabrata De, the P.W. 1 in an
operation at the Memorial Nursing Home. The P.W. 9 is a witness to the
seizure of an empty bottle of whisky with a cap and another separate
cap from the Kangshabati Dam area, which proves nothing but
indicates that the appellants or some of them might have consumed
whisky.
P.W. 12, a police constable only deposed that Dr. Subrata Das
had met him at the outpost and informed him that the deceased had
drowned. P.W. Nos.13 and 14 were produced but neither examined nor
cross-examined.
P.W. 23, Samir Chakraborty, was the diver-in-charge of M/s
ABEE Engineering Corporation. He deposed that pursuant to the
direction of Ambikapada Bhattacharyya, the Managing Director of that
company, the P.W. 23, and three other divers, Nakka Jogi, Prabir
Chandra and Subharanjan Saha came to Bankura from Calcutta in a
police jeep on 17th September, 1990 and they arrived at Mukutmonipur
in the afternoon. At that time there were some local people and some
police personnel at the Mukutmonipur Dam. The local people showed
the divers the spot, where the deceased was stated to have drowned.
Mr. Jogi, Mr. Chandra and Mr. Saha started to search for the body but
they had to come out of the water for want of light after it became dark.
On 18th September, 1990 those three divers again dived into the said
dam to search out the body and after continuous search Mr. Jogi
located the body inside the dam. He came out of the water and another
diver dived in, but could not locate the body. He only found a piece of
wooden log. Finally Mr. Jogi went inside the water of the dam again
with a long nylon rope and fastened the body to the nylon rope. Then
he again came out from inside the water but found the rope floating
partly on the surface of the water. The rope was finally fastened to the
body. The body dragged out of the water by pulling that rope as the
divers sailed towards the bank in their boat. The body was placed on
the bank of the dam by hand.
This witness noticed that the deceased still had his spectacles on
and was wearing an underwear. This witness could not recall the
distance between the point where the dead body was located and the
bank of the dam but the distance was considerable. He deposed that
the length of the rope was about 30 to 40 ft.. The distance from the
bank to the place of occurrence was about 70 ft.. The divers dived
seven or eight times along with oxygen cylinders and then Nakka Jogi
located the dead body. After repeated attempts the dead body was
located. Some persons present at the time of search, tried to help the
divers to locate the spot by pelting stones, after which the divers
searched out the peripheral area.
P.W. 24, Prabir Chanda, another diver has also deposed that the
body was pulled out with a rope while the boat sailed. This witness
corroborated what the P.W. 23 had deposed. He stated that the
deceased had his spectacles on and was in his swimming costume. He
further stated that he did not find any injury mark on the body except
that the face was bluish in colour. In cross-examination this witness
stated that the dead body was located near a small island within
Mukutmonipur Dam. The edge of the island was sloping and slanting.
There were small plants and small trees on the said island. The depth
of the water at the point where the dead body was located was about
10 meters. The place of occurrence was at a distance of about 70 ft.
from the island. In cross-examination he also stated that when the
dead body was brought near the bank of the dam some doctors lifted
the body from the water. This witness has deposed that when the body
was brought out, its face was downwards inside the water and its back
was towards the sky. After the dead body was taken out, it was placed
on its back facing the sky.
P.W. 21, Bipin Mukherjee, a constable posted at Ranibandh
Police Station at the material time, deposed that he had carried the
dead body of the deceased to the morgue in a car. In cross-examination
this witness deposed that the dead body of the deceased was brought
to the morgue of BSMCH in a private car. He deposed that the dead
body was placed at the back of the car and that it was not possible to
place the dead body straight. Parts of the dead body had to be folded.
The doctors who were present at the time of inquest, placed the dead
body in the car. The dead body was taken out from the car and carried
away by the hospital staff. The post mortem was, according to this
witness, completed at about 9 p.m.
P.W. 27 is the owner of a studio who took four snaps of the dead
body and handed over the negatives to the police. This witness deposed
that he went to the island to take snaps of the deceased after crossing
the Mukutmonipur Dam in a boat at about 1:30 - 2 p.m.. The police
brought him to the island for taking photographs of the dead body. It
took this witness about 15 minutes to reach the place of occurrence
and another 5 to 10 minutes to cross the dam water to reach the
island. He could not recollect at what point of time he had taken the
photographs. P.W. 28, Ardhendu Sekhar Patra, Sub-Inspector of police
attached to Khatra Police Station deposed that he handed over the
negatives to the CID. He could not say anything more.
P.W. 29, Swapan Kumar Singh, Sub-Inspector of police at
Bankura deposed that Dr. Kousik Chakraborty had made an
application to the S.D.O., Kangshabati Left Bank Sub-Division for
permission to visit the dam along with his friends in vehicle No. WMB
1393 and the S.D.O. had given permission to be there for an hour from
2:40 to 3:40 p.m.. He tendered the application in Court.
P.W. 31, Syed Abdul Kadir, a Clerk in the office of S.D.O.,
Kangshabati Sub-division No.IV, deposed that three persons, all
doctors of Bankura and a lady from Bankura went to his office and
submitted an applicatiion for permission to enter the dam area in their
car. He stated that he had given permission to them to enter the dam
area in their car. He identified the appliacation in Court. Similar
permission was granted to Dr. Debabrata Dey on 16th September, 1990
to go to the spot where the deceased had drowned.
P.W. 33, Nahabat Bhunia an Upper Division Clerk of the
Kangsabati Project deposed that he put his signature on the
application submitted by a doctor from Bankura to enter into the
Kangsabati Project Dam area in their car. Permission was granted. The
permission was supposed to be shown to the gate man to enter the
dam area by car. He, however, declined knowledge of what the gate
man did.
P.W. 32, Krishnapada Chatterjee, a policeman posted at
Pareshnath Camp of Mukutmanipur Dam deposed that in the
afternoon he was informed that a doctor had drowned and he reported
to the matter to the Mukutmonipur outpost. He did not report the
matter to the Kangsabati Project Officer or to the Khatra Police Station.
In cross-examination he deposed that he was not present at the
checking gate but he was inside the Pareshnath Ghat Camp, when
Sudhir Bagdi informed him that a doctor had drowned, whereupon he
went to the out post, where he saw Pradhan Sahadeb Mahato. He
deposed that 'kheyaghat' was at a distance of half a kilometer from
their camp office.
P.W. 34, Samir Ghosh, an insurance agent residing at in
Calcutta deposed that the deceased had opened an Insurance policy of
25,000/- in the year 1990, making his wife Mrs Aditi Kanjilal as
nominee. He paid only one yearly premium of Rs.1,700/- and died
thereafter.
Apart from the P.W. 1, Dr. Debabrata De some other doctors
were also examined. P.W. 10, Dr. S.P. Chatterjee only deposed in cross-
examination that Dr. Subrata Das and Dr. Kanjilal both were surgeons
and Dr. Kousik Chakraborty was an Orthopedic Surgeon. This witness
said nothing more.
P.W. 20, Ajit Ganguly, the Chairman of the Hospital Monitoring
Management Board of BSMCH has not stated anything significant. He
only deposed that at the time of the incident Dr. Debarata Dey was the
Head of the Surgical Department, the deceased was R.M.O. of Surgical
Department of that Medical College and Dr. Subrata Das was a visiting
surgeon of that department. This witness claimed that after arrival of
the dead body of the deceased, the Principal and the Superintendent
consulted him regarding the holding of the post mortem examination.
He deposed that post mortem was done by Dr. J.N. Dey in the presence
of Dr. Tapas Bose and Dr. Batabyal.
In cross-examination he admitted that he had not entered the
morgue but been waiting near the morgue, in the field. This witness
deposed that after arrival of the dead body of the deceased, the
deceased was honoured with floral tributes including wreaths,
garlands, bouquets and loose flowers. He further stated that he had not
entered the room where the post mortem was conducted. Hence, it was
not possible for him to say what was the arrangement of lighting inside
the post mortem room. He also did not know whether there was any
dispute regarding holding of the post mortem.
P.W. 20 could not recollect whether he saw Dr. Debarata Dey at
the morgue at the time of post mortem. He denied knowledge of who
had accompanied the deceased to Mukutmonipur. He also denied
having made any comment about the liability of any person behind the
death of the deceased. He denied that he had told the police that it was
a case of cardiac arrest as per the opinion of Dr. Debabrata Dey.
P.W. 20 categorically denied the hospital authorities, particularly
the Principal, the Superintendent or this witness or any other doctors
had any doubts with regard to the ability or competence of Dr. J.N. De.
As the deceased was a doctor, the post mortem was held by three
doctors.
P.W. 25, Dr. Ajit Kumar Pradhan has, in a nutshell, deposed that
he was in the same hospital as the deceased. He was posted as Medical
Officer in-charge of the Blood Bank of BSMCH. He was a neighbour of
the deceased and he knew the deceased well. He occasionally visited
the residence of the deceased. The deceased was a very good swimmer,
and used to swim in the Ganga when he was at Behrampur. Dr.
Pradhan was also a witness to the seizure list of some of the articles
which were seized from the residence of the deceased on 16th January,
1991.
P.W. 36, Dr. J.N. Dey, the Head of the Department of Forensic
and State Medicine, BSMCH, conducted the post mortem examination
of the body of the deceased. P.W. 36 has deposed that as trouble had
cropped up before holding the post mortem and the case was sensitive
he formed a Board along with Dr. T.K. Basu, lecturer of his Department
and Dr. S. Batabyal, a Demonstrator of his department. He deposed
that apart from Dr. T.K. Basu & Dr. Batabyal the then Principal of
BSMCH Dr. Shyamal Banerjee, the then Superintendent of BSMCH Dr.
Satyendranath Dutta, and the then Head of the Department of
Pathology Dr. Yoggeswar Sengupta were also present. P.W. 36 stated
that he conducted the post mortem at 4:45 p.m.. P.W. 36 deposed that
he found the following injuries on the dead body.
"1. An abra-sion 1" x ½" over right side of forehead.
2. An abrasion 2" x ½" over right mallor prominence.
3. An abrasion 1" x ½" over bridge of nose.
4. An abrasion 3" x 1½" over left mallor prominence.
5. A crecintic abrasion .2" x .1" placed obliqely over upper
part of left side of neck, 2" below and 1" to the right of
left angle of mandible.
6. A crecintic abrasion .1" x .1" placed obliquely over left
side of upper part of neck, 1.2" below and ½" to the
right of left angle of mandible.
7. An abrasion .1" x .1" over left side of upper part of
neck, 1" below and ½" to the left on left angle of
mandible, 1.5 to the right of mid line of front.
8. An abrasion .2" x 1" over mid part of right side of front
of neck, ½" to the right of thyroid prominence.
9. An abrasion .1" x .1" over mid part of right side of neck,
1.2 to the right of mid line of front, 2.5" below and ½" to
the left of right angle of mandible.
10. Two small abrasions .1" x .1" over mid part of right side
of neck, ½" below the injury no. 9.
11. An abrasion .2" x .2" just below the thyroid prominence
at mid line.
12. An abrasion .1" x .1" over mid part of right side of neck
3.2" below, 1" to the left of right angle of mandible.
13. An abrasion .1" x .1" over lower part of neck, 2" above
.2" to the right of supersternal notch.
14. An abrasion .2" x .2" at the right side of lower part of
neck, 3" to the right and ½" above to the medial end of
the clavicle.
15. An abrasion .1" x .1" at right side of lower part of neck,
2" to the left and ½" above the acromial end of clavicle.
16. An abrasion .2" x .1" over the upper part of right side of
front of chest over third inter costal space.
17. An abrasion ¾" and ½" over right side of the front of
Chest, 1½" below the acrominal end of clavicle.
18. An abrasion 1" x ½" over upper part of front of chest at
mid line, 2" below the supersternal notch.
19. An abrasion .2" x 1" over mid part of front of chest, 2.2"
below to the right side of front of mid lin 3" below and
2" to the right of acrominal end of clavicle.
20. An abrasion .2" x .2" at fifth intercostal at left and
laternal axillary fold."
On dissection of the dead body the P.W. 36 found twelve internal
injuries as described by him. He found extravagated clotted and liquid
blood had infiltrated the tissues of various parts of the neck, clavicle
area, parts of chest, back, larynx, trachea etc.
P.W. 36 deposed that all the injuries showed signs of vital
reaction. No other injuries could be detected under magnifying lens.
The abrasions were black and/or reddish in colour. At the time of
postmortem P.W. 36 did not find any mud, water or sand in the lower
respiratory tract or stomach.
P.W. 36 opined that the deceased did not drown to death. He
opined that the death was due to manual strangulation ante mortem
and homicidal in nature. He was of the view that the injuries were ante
mortem. He claimed that he found ante mortem nail marks on face and
neck of the deceased. He deposed that further opinion was to be given
after the report of the chemical expert.
Even though the PW 36 opined that the abrasions were due to
fists and blows by hand and not contact with rough and/or rocky or
other blunt objects, he did not mention the nature of the abrasion. He
could not also say whether the neck of the deceased was caught from
the front or from behind.
In cross-examination the P.W. 36 stated that the external and
internal injuries were not caused at the time of searching out the dead
body from inside the water. This witness deposed that the body was in
early stage of decomposition. The vertebrae and skull were intact but
membranes were found decomposed. Brain and spinal cord were found
in early stage of decomposition but spinal cord was intact. Against
column thorax wall, the injuries were as noted in the report. Rib and
cartiledges were intact. Plurae was decomposed. Larynx and trachea
were decomposed. Hyoid bone and cartiledges are found as noted.
Lumen contained no mud and sand and the weight of the right lung
was 400 grm and left lung 300 grm and both were found decomposed
but not edematous. The heart was decomposed. Both sides were found
empty. Vessels were found decomposed. Abdomenal wall was found
decomposed. Peritroium was found decomposed. Mouth, pharynx and
oesophagus were found decomposed. No deformity or disease was
detected on the dead body. No fracture was noted in his evidence.
P.W. 36 deposed that the dead body was received for post
mortem at 4:30 p.m. Post mortem was started at 4:45 p.m. The post
mortem report was completely written in his handwriting and three
copies of post mortem report were prepared at a time, one original and
other two carbon copies. The original copy of the post mortem was
sent to S.P. Bankura. The post mortem which is exhibited is the third
copy and the second copy is in the P.M. book. He has stated that no
one signed the post mortem report.
P.W. 37, Dr. Suddhodhan Batabyal, who was, at the time of the
incident, posted as Head of the Department of FSM, BSMCH, and was
one of the members of the Board conducting the post mortem
examination of the body of the deceased, deposed that Dr. J.N. Dey had
held the post mortem in his presence and in the presence of other
Board Members. This witness stated that Dr. J.N. Dey noted down the
external and internal injuries found on the dead body of the deceased,
after pointing the same out to the Board Members. He further stated
that all the injuries were found ante mortem in nature. After
considering all the injuries found on the dead body of the deceased Dr.
J.N. Dey arrived at an objective finding and opined that the death of
Dr. Swapan Kanjilal was homicidal in nature and the injuries were
ante mortem in nature and caused by manual strangulation. This
witness also concurred with such view.
In cross-examination P.W. 37 stated that he did not sign the
post mortem report as it was not the rule that board members should
sign, if there was a Head of the Department. This witness could not
recollect whether he had received any written order requiring him to
attend the post mortem as Board member. He also could not recollect
how much time was taken to complete the post mortem examination.
He also could not say what type of light was used for holding the post
mortem examination. He, however, denied the suggestion that he was
not actually present at the time of the post mortem.
This witness deposed that while the post mortem examination
was going on Dr. J.N. De was recording his findings in rough paper
and later after the post mortem examination was completed, the report
was prepared on the basis of the notes in the rough papers. He claims
to have compared the notes with the final report. He clearly stated that
there was no fracture noted in the post mortem report.
P.W. 38, Dr. Joggeswar Sengupta deposed that in September,
1990 he was posted at BSMCH as Professor and Head of the
department of Pathology. He stated that he was a member of the Board
constituted for conducting post mortem over the body of the deceased.
P.W. 38 deposed that at the time of holding post mortem internal and
external injuries were found on the body of the deceased. These
injuries were pointed out to him by Dr. J.N. Dey. The then Principal of
BSMCH Dr. Shyamal Banerjee and the then Superintendent of BSMCH
Dr. Satyendranath Dutta were also present at the time of post mortem.
He deposed that after completion of the post mortem of the deceased,
the doctors were satisfied that the injuries were ante mortem in nature,
but no final opinion of death was expressed and the viscera was sent to
the Forensic Department for examination. In cross-examination, he
reiterated that he did not give any final opinion on the cause of the
death of the deceased. He further deposed in cross-examination that
findings of a Medical Board are required to be signed by all the
members of the Board. In this case, all the four members i.e. Dr. J.N.
Dey, Dr. Shyamal Banerjee, Dr. Satyendranath Dutta and this
deponent had signed the post mortem report. However, on perusal of
the post mortem report tendered in Court as Exhibit 9 he stated that
the post mortem report did not bear his signature.
The P.W. 39, Dr. Shyamal Kanti Banerjee, deposed that in
September, 1990 he was posed as Principal, BSMCH and Dr.
Satyendranath Dutta was the Superintendent. The deceased was
posted as surgeon at the same hospital. This deponent deposed that as
per his order a Board was formed, consisting of himself, Dr. Tapas
Bose, Dr. Batabyal, Dr. Yoggeswar Sengupta and Dr. Satyendranath
Dutta, the superintendent of BSMCH for holding the post mortem. In
the presence of the Board Members the autopsy surgeon Dr. J.N. Dey
showed him the external and internal injuries of the deceased. All the
ingredients of homicidal death were found during post mortem.
In cross-examination, P.W. 39 deposed that as per the Rules, the
Board Members signed the report. He stated that he had signed the
post mortem report which was prepared along with two carbon copies
of the original. He further deposed that it was the procedure to sign
when the carbon was in place and he had signed the original copy and
found that his signatures were there in all the copies.
P.W. 39 admitted that the post mortem report tendered as
Exhibit 9 did not have his signature. He also deposed that when there
was no signature in the report there was no authenticity of the report
as presented. In cross-examination this deponent stated that apart
from the post mortem report which was signed by all the members no
other post mortem report was prepared.
P.W. 39 deposed that the post mortem was completed during
night hours and it was done under the light of three to four pressurized
kerosene lanterns (hazacs) for some time as there was load-shedding.
This witness, however, denied the suggestion that there was any
conspiracy of doctors prior to holding post mortem. He denied that the
post mortem report was falsely prepared by Dr. J.N. De. He also denied
having informed C.I.D. that Dr. Debarata Dey had suggested that the
death of the deceased was suspicious.
The P.W. 40, Dr. Satyendranath Dutta, another member of the
board deposed in cross-examination that it was the rule that all the
members of the board would have to sign the post mortem report. On
being shown Exhibit 9, he admitted that his signature was not there.
He deposed that post mortem report was prepared in triplicate one
original and two carbon copies. The Board Members were required to
sign the post mortem report on all the copies.
P.W. 41, Dr. Satya Ranjan Dey deposed that he was posted as
Medial Officer of BSMCH. He knew the deceased, who was of the same
department. He deposed that he went to see the dead body of deceased
after it was recovered and he noticed that the body was swollen and
there was discolouration near the chest. He deposed that he was
mentally upset to see the body of the deceased which was later brought
to the morgue of BSMCH in a truck. He deposed that he did not find
any prominent injury on the dead body. He also deposed that he had
not seen how the body was removed from the main land to the island.
He could not recollect how he had reached the island from main land
but possibly he had reached their by boat. The P.W. Nos. 42, 43, 44,
45, and 47 were police witnesses who were associated with the
investigation of the case.
P.W. 46, Haladhar Sahu, who had worked at the maternal home
of the deceased, from where the deceased had been educated, and
claimed to have taught the deceased swimming, deposed that the
deceased was a good swimmer. This witness was of the view that
having regard to his swimming skill, the deceased should not have
drowned. This witness was admittedly not present at the time of the
incident. His evidence is, therefore, not of much value since many
experienced swimmers are known to have drowned for various reasons
including sudden illness, physical discomfort, pain or injury caused by
marine creatures, floating objects etc. In fact in his cross-examination
this witness admitted that good swimmers could also drown.
P.W. 26, only deposed that Mrs. Aditi Kanjilal was her daughter
and she was an accused in connection with this case. The learned
Public Prosecutor declined to examine this witness contending that she
had been gained over, for which he did not want to examine her.
The Defence Witness 1 Gobindalal Banerjee appointed as
Executive Engineer and Technical Engineer, later appointed as
Superintendent Engineer of Kanshabati Circle at Mukutmonipur Dam
has given a thorough description of the dam. What emerges from his
evidence is that the water of the said reservoir generally becomes
muddy in September. He, however, denied any personal knowledge of
the incident of the death. He deposed that the embankment is filled
with boulders without mortar.
The Defence Witness 2 Soumitra Kumar Sen deposed that he
had examined the power of the spectacles on the eye of the deceased
being exhibited 4. The power was -9.00 D SPH (Approx) on the right
lens and 7.00 D SPH with -1.00 D Cyn 80o (Approx) on the left lens.
His evidence only shows the condition of the eyes of the deceased, - a
possible reason why the deceased might have had his spectacles on
while he was swimming.
The Defence Witness 3 Dr. Apurba Nandi with specialization in
Forensic Medicine who claimed to have acted as Chairman and
Member of many Medical Boards for post mortem examinations
deposed on the procedure for holding post mortem examination and
also gave his opinion with regard to the characteristics of death by
strangulation, asphyxiation cardiac attacks and/or cardiac failure with
a view to demonstrate that the death of the deceased might not have
been on account of ante mortem manual strangulation.
This deponent had written two books, Principles of Forensic
Medicines and Investigation Cases on Offences on Human Body in the
years 1995 and 1998 respectively. He deposed that generally in case of
strangulation there is protrusion of eye-balls and tongue, which was
not noticed in the case of the deceased upon post mortem. This
deponent stated that the features found on post mortem examination
in case of axphyxial death are similar to the features found in case of
dry drowning. He also deposed that there is possibility of cardiac
arrhythmia due to consumption of alcohol.
After analyzing the evidence the learned Trial Court categorically
held, and in our view, rightly, that there was nothing to establish that
there was any love affair or special intimacy between Smt. Aditi Kanjilal
and Dr. Subrata Das.
The learned Trial Court found that both Smt. Aditi Kanjilal and
Dr. Subrata Das, who was accompanied to the dam by his wife, child
and brother in law (wife's brother) had normal relationship with their
respective spouses.
In the judgment and order of sentence and conviction under
appeal the learned Trial Court noticed differences between P.W. 36, Dr.
J.N. De and some other doctors over the post mortem of the deceased
and accordingly recorded:
"...admittedly, trouble cropped up regarding
P.M.examination of deceased between this p.w. and Dr.
Shyamal Mukherjee, Dr. Debu De, Dr. Arobinda
Bhattacharjee who expressed it as a case of drowning while
this p.w. on examining the dead body would find it a case of
homicide..."
The crux of the reasoning of the learned Trial court that led to
the conviction is set out hereinbelow :
"Admittedly, the accused persons consisting of six
persons with Dr. Swapan Kanjilal and d/o Dr. Subrata Das
& Sanghasree Das went to Mukutmonipur Dam area
specially at the island on 16.09.90 for an excursion by
Ambassador Car W.M.B.1393 with permission from the Dam
Authority within 2.40 - 3.40 and no other excursion party or
person then was present with them on the said island, quite
isolated from the Dam area. Evidences of the witnesses with
their cross-examination went to show that dead body of Dr.
Swapan Kanjilal was at last recovered on 19.09.90 from the
water of the said Dam 20" ft. away from the said island with
decomposition with 20 external injuries and 12 internal
injuries. Accused persons in such a case were obliged either
to give plausible explanation or to own up the responsibility
in respect of such external injuries and internal injuries
following some of the external injuries on the said dead body
of 5' - 10" in hight when weight of the said dead body was
not mentioned in the P.M. report. The Court can legally
presume that in Indian climate in case of male 1'ft. was
equal to 12 kgs. weight, so weight of said deceased doctor
was to some extent 72 kgs. (6'ft'x 12 kg. = 72 kgs) as normal
health. Whether drunken or not Dr. Swapan Kanjilal was as
a member of excursion party at the said island of the said
Dam after the time of his last seen alive. It is presumable to
draw inference regarding culpability of the accused persons
in commission of the offence based on the theory of last seen
together. In the process of analysing the evidences and
coming to the conclusion regarding complicity or innocence of
the accused persons, it is presumable for the court to draw
logical and legal presumption from the proved fact. This
principle is acknowledged in Sec. 114 of Evidence Act which
permits the court to presume the existence of a fact which is
likely to have happened, having regard to the common course
of natural events and human conduct. This theory is an
explanation to the general rule embodied in Sec.60 of the
Evidence Act and oral evidence should be direct. The theory
of last seen together can be legitimately invoked in a case
where the possibility of involvement of stranger can be
excluded and the facts established; lead to the conclusion
that the accd. Persons only are the authors of the crime. The
accused persons in this case simply evading their
responsibility of commission of any offence on the body of Dr.
Swapan Kanjilal taking a plea that some 20' ft. away from
the said island said doctor went swimming wearing a
jangia/panty with spectables on his eye when drunken was
drowned feeling helpless having sudden heart attack."
The learned Trial Court accepted the view of the autopsy surgeon
that the internal and external injuries were ante mortem, and held the
accused appellants responsible for the death of the deceased, since
they offered no explanation for the injuries though they were with the
deceased at the time of his death.
The learned Trial Court noted the differences of opinion between
the autopsy surgeon, Dr. J.N. De (P.W. 36), with various well-known
authors of books on Forensic Medicine including Dr. Reddy as also the
differences of the views of P.W. 36 with those of some other doctors.
The learned Trial Court preferred the opinion of the PW 36 to that of
others on the ground
"...p.w. 36 was cross-examined by ld. Defence lawyer
exhaustibly with citation of opinion of different doctors on
their different books though Dr. J.N. De/p.w. 36 practically
for every time denied those suggestions as an experienced
doctor on dissection of human bodies within his long service
period even after retirement. P.W. 36 rather confirmed the
fact that death of Dr. Swapan Kanjilal happened due to
throttling with 20 external and 12 internal injuries some of
which followed external injuries though the dead body of
said doctor was just decomposing on some parts of its body
as seen after its recovery on 19.09.90. To substantiate the
defence story accused persons took plea that P.M. was fake,
not concurred by other doctors present done during load-
shedding within Bankura morgue area. This matter was also
totally denied by p.w. 36 whose head could not be
purchased by the accused persons specially by two doctors
such as Dr. Subrata Das and Dr. Kousik Chakravorty who
were of anti-party to p.w. 36. From the evidence with cross-
examination of p.w. 36 it is seen that P.M. was done by p.w.
36 on dead body of Dr. Swapan Kanjilal in presence of some
doctors who during their cross-examination took plea about
non-concurring of P.M."
Section 114 of the Evidence Act enables the Court to presume
the existence of any fact which it thinks, is likely to have happened,
having regard to the common course of natural events, human conduct
and public and private business, in their relation to the facts of the
particular case. The Court may, at its discretion, draw certain
presumptions. Whether the Court will draw any presumption or not,
will depend on the facts and circumstances of the case. There is no
hard and fast rule with regard to the circumstances in which any fact
or facts may be presumed to exist. Each case has to be determined
according to its own peculiar facts. There cannot, however be any
missing link in the prosecution case.
There can hardly be any doubt that it was permissible in law for
the learned Court to draw a presumption from a proved fact, taking
into account the common course of natural events and human
conduct. In law, inference of the culpability of an accused might be
drawn by invoking "last seen together theory".
The question is whether, in the facts and circumstances of this
particular case, having regard to the materials on record, the Court
could have drawn inference of culpability of the accused persons in
commission of the offence based on the theory of "last seen together".
In our view, there is no proved fact which could logically lead to
the presumption of culpability of the accused appellants. The only
proved facts in this case are that the deceased and all the accused
appellants had gone to the dam, the deceased was in the company of
the accused appellants, the deceased had died and the dead body of
the deceased was recovered from under 10 meters of water three days
after the deceased was reported to have drowned.
We are of the view that the judgement and order under appeal is
based on suspicion which arose from the opinion of the autopsy
surgeon Dr. J.N. De in the post mortem report with regard to the cause
of death of the deceased.
The learned Trial Court appears to have been swayed in favour of
the opinion of the autopsy surgeon, by reason of his consistent denial
of suggestions that the deceased might have died as a consequence of
drowning due to fatigue, exhaustion, physical illness, agony, pain or
discomfort, sudden death by reason of cardiac failure or other similar
reasons.
From the oral evidence of PW 36, it is absolutely clear that the
PW 36 has taken a view that is different from the view expressed by Dr.
Reddy and other well known authors in their books and essays on
Forensic Science. This was, not, therefore one of those clear cut cases
where there could be only one conclusion with regard to the cause of
the death. Many of the signs of manual strangulation such as fracture
of hyoid bone, presence of frothy mucus in the larynx and trachea and
protrusion of tongue and eye balls were not found in post mortem.
In cross-examination P.W. 36 inter alia admitted that in case of
strangulation and violent asphyxial death 'turdue' spots are found in
lungs, brain, pericardium etc. but in this case no turdue spots were
found in the body.
P.W. 36 was confronted with the views of different authors in
treatises and textbooks on Forensic Science. The suggestions put to
P.W. 36 in cross-examination were based on books written by reputed
scholars/authors of Forensic Science such as Dr. J.B. Mukherjee, Dr.
Apurba Nandi, Dr. Modi, Dr. Rao, Dr. K.S. Narayan Reddy. This
witness did not agree with many of the observations and views in those
books and denied most of the suggestions without indicating the exact
reasons for his difference, but harping on his vast practical experience
of 34 years in conducting post mortem examinations.
A careful analysis of the oral evidence of the P.W. 36, Dr. J.N. De,
particularly in cross-examination reveals that some of the factors
noticed during the post mortem of the deceased, on which the P.W. 36
relied, to form the opinion of death by manual strangulation and/or
fists and blows, could be found in cases of death by drowning. In cross-
examination, this prosecution witness categorically stated that the
body had decomposed. When the body is decomposed it may not be
possible to definitely distinguish post mortem injuries and abrasions
from ante mortem ones.
P.W. 39, Dr. Shyamal Banerjee, the Principal of BSMCH and Dr.
Satyendra Datta the Superintendent, both deposed that post mortem
was completed during night hours and it was done under the light of
three to four 'hazacs', that is, pressurized kerosene lanterns for
sometime as there had been a power cut in the hospital area.
The learned Trial Court found that the body of the deceased had
been recovered on 19th September, 1990 from the dam at a distance of
about 20 ft. away from the island. The two professional divers, PW 23
and PW 24 had however both deposed that the body had been
recovered about 70 ft. away from the island.
The learned Trial Court accepted the finding of the autopsy
surgeon that there were 20 external injuries and 12 internal injuries on
the body of the deceased and was of the view that in such a case the
appellants were obliged to give a plausible explanation for the injuries
or alternatively to own up their responsibility for such external injuries
and internal injuries. The learned judge drew presumption of
culpability of the accused person on the basis of the 'last seen together'
theory since the appellants were unable to explain the external and
internal injuries.
Observing that Section 114 of the Evidence Act permitted the
Court to presume the existence of a fact which is likely to have taken
place, having regard to the common course of natural events and
human conduct, the learned Trial Court concluded that the theory of
'last seen together' could legitimately be invoked in a case where the
possibility of involvement of stranger could be excluded. The learned
Judge found that the facts established, led to the conclusion that the
accused persons were the only authors of the crime.
The body was admittedly fished out of a rocky area after almost
three days by fastening a rope. The divers have deposed that the body
was pulled with the rope while the boat sailed towards the island.
There is evidence on record to the effect that stones were pelted and
logs were used to search out the body of the deceased. While the divers
dived into the water, persons standing on boats pelted stones to
identify the spot where the deceased was said to have drowned. The
possibility of a sudden natural death or death by drowning and
subsequent post mortem cuts and injuries caused by stones, rocks,
logs, ropes etc. cannot be ruled out.
The learned Trial Court failed to appreciate that there were
missing links and inherent improbabilities in the case of the
prosecution and has adopted a rather contorted and biased approach
to natural course of events and ordinary human conduct, ignoring
some vital evidence on record including the evidence of the professional
divers from Calcutta, P.W. 23 and P.W. 24 which indicate that the body
of the deceased was brought out from under the water, at the place
where the deceased was stated to have drowned, which was about 70
feet away from the island. When a sudden, unexpected incident of
drowning takes place some distance away from the others, who were
having fun amongst themselves at the shallow end of the water, near
the bank, it is hardly possible for them to say what exactly caused the
drowning.
Moreover, scuffle and manual strangulation could not have taken
place at a distance of 60/70 feet away from the island, where the water
was about 10 meters deep. If the deceased had been strangled on the
island, his body would not have been recovered about 70 feet away
from the bank, where he was stated to have drowned. The body of the
deceased could not have been flung 70 odd feet.
There is not a scrap of evidence to show that there was any
enmity between the deceased and Dr. Subrata Das or between the
deceased and Dr. Kaushik Chakravarty. Even assuming that Dr.
Kaushik Chakravarty or Dr. Subrata Das had any enmity towards the
deceased, there is no answer to the question of why the wife of the
deceased, Smt. Aditi Kanjilal should assist the said doctors, or try to
save them at her own peril and risk of conviction. The learned Trial
Court found that there was no proof of any affair between Dr. Subrata
Das and Smt. Aditi Kanjilal.
The next question is, even if there were any romantic
involvement between Dr. Subrata Das and Smt. Aditi Kanjilal, as
suggested by the Prosecution during the Trial, would Dr. Subrata Das,
going by the theory of normal human conduct and natural course of
events, get rid of his paramour's husband in the presence of his own
wife, wife's brother and his own 7/8 year old child, and get his wife and
her brother's support? Would Sm. Sanghasree Das and Sri
Preethubrata Tarafder be so magnanimous that they would risk their
own conviction and jeopardize the future of 7/8 year old Sangeeta, to
support the licentiousness of Dr. Subrata Das? Moreover, why would a
total outsider Pulak Roy or for that matter Dr. Kaushik Chakravarty get
involved? Even if Dr. Subrata Das and Dr. Kaushik Chakravarty had
any common enmity towards the deceased, what motive could Pulak
Roy and Preethubrata Tarafdar have had, in murdering the deceased?
There is no answer to these questions
The Trial Court, however, rejected the submission of Defence
Counsel that the post mortem was done during load-shedding,
observing that this had totally been denied by P.W. 36 "whose head
could not be purchased by the accused persons specially by the two
doctors, Dr. Subrata Das and Dr. Kousik Chakravorty who were of
anti-party to P.W.36". There is no evidence at all showing that these
two doctors tried to purchase any one. Even, P.W. 36 has not stated so
in his evidence.
The learned Court found "From the evidence with cross-
examination of P.W. 36 it is seen that P.M. was done by P.W. 36 on dead
body of Dr. Swapan Kanjilal in presence of some doctors who during
their cross-examination took plea about non-concurring of P.M. though
said doctors were present as death of Dr.Swapan Kanjilal grieved the
hearts of people of Bankura who assembled by the side of Bankura
morgue at the time of dissection of said dead body. Dr.Swapan Kanjilal
was a very familiar doctor of B.S.M.C. & Hospital and also of Bankura
town with his best operation work. Dr. Subrata Das was a ring leader
amongst the accused persons who with the help of other accused
persons even with help of his wife and Aditi Kanjilal did the cruel offence
by throttling Dr. Swapan Kanjilal making him drunken then injuring him
externally, killing him threw' him within water".
The learned court concluded that the appellants Dr. Subrata Das
and Dr. Koushik Chakravorty were the main preceptors of the entire
drama which ended in the death of the appellant Aditi Kanjilal's
husband for "hidden reasons best known to them".
The learned Court assumed that to camouflage this entire
incident Dr. Subrata Das took the plea that the deceased had drowned
when he was swimming in the dam in a drunk condition, due to
sudden cardiac arrest.
As observed hereinbefore there was no eye witness to the
incident. There is no evidence of any enmity of the accused appellants
or any of them with the deceased. It is not understood how the learned
Trial Court could have arrived at the finding that Dr. Subrata Das was
the ringleader amongst the accused appellants or that he committed
the cruel offence of throttling the deceased. The purported findings are
totally conjectural and based on surmises.
The learned Court below held that this was not a case of dry
drowning as had been argued by the defence counsel. Rather, this was
a case of murder by throttling, as nail marks were found on deceased
with external injuries, mostly on the head, nose, neck as well as
internal injuries. Had it been a case of dry drowning, the deceased who
knew swimming would try to save his life till he last breathed and in
that case the spectacles which he wore would not remain on his eyes,
as the said dead body was recovered three days later. The court drew
adverse inference against the appellants since the dead body was
fished out after three days with spectacles on his eyes.
The finding that the learned Trial Court could presume that the
accused persons, as fools, fixed the spectacles on the eyes of the
deceased, with a view to attention is not based on any evidence on
record. The dead body was admittedly recovered by professional divers
from Calcutta after three days. The divers have deposed that when the
deceased was brought out he still had his spectacles on.
The learned Court below should have appreciated that the onus
was on the prosecution to prove the accused appellants guilty beyond
all reasonable doubt. It was not for the accused appellants to prove
themselves innocent. The learned Court below erred in concluding that
the injuries were ante mortem and homicidal injuries inflicted by the
accused appellants, just because the accused appellants could not
prove that the external injuries were inflicted by rocks, fish or any
other marine creatures.
From the judgement and/or order of conviction and sentence
under appeal it appears that the suspicion of the Court was aroused
since it was not clear why the deceased should have gone for an outing
in stead of discharging his duty at the Memorial Nursing Home of Dr.
Deborata Dey, when he had fixed operation on 16th September, 1990.
The learned Court could not find any answer to the question why
the deceased attended the picnic along with the accused appellant in
stead of discharging his duty of performing an operation at the
Memorial Nursing Home where he was scheduled to assist Dr. Dey. The
Court, therefore, assumed that the deceased was not at all willing to go
for the outing. The appellants conspired with each other to compel the
attendance of the deceased doctor.
The learned Court also drew adverse inference against Smt. Aditi
Kanjilal for not being present at the time when her husband's body was
brought out of the water, observing that "it was within her knowledge
that the said body would be recovered by divers of Calcutta on 19th
September, 1990". The learned Court found this "action of Smt. Aditi
Kanjilal was totally suspicious".
It is not understood how the learned Court below arrived at the
conclusion that Smt. Aditi Kanjilal knew that the body of her husband
would be recovered by divers on 19th September, 1990. It is a matter of
record that the alleged drowning took place on 16th September, 1990.
Divers from Calcutta arrived on 17th September, 1990. They started
search for the body on 17th September, 1990, searched the whole day
on 18th September, 1990 and ultimately succeeded in bringing out the
body from the water at about 10:45 a.m. on 19th September, 1990.
There is not a scrap of evidence to show that Smt. Aditi Kanjilal was
informed of the possibility of the recovery of the body of the deceased
on 19th September, 1990.
With the greatest of respect, the learned Court below drew an
inference which was not only wrong but bordered on absurdity. It is
ridiculous to expect a young wife who had lost her husband only three
days ago, in tragic circumstances, to go and stand at the bank of the
river/dam in anticipation of recovery of her husband's dead body, the
condition of which was not known.
There is no evidence with regard to the mental state of Smt. Aditi
Kanjilal during that period. It is only to be expected, having regard to
the common course of natural events that Smt. Aditi Kanjilal should
have been in a state of mental shock and stupor. The adverse
inference drawn against Smt. Aditi Kanjilal for not being at the bank of
the river/dam at the time of recovery of her husband's body is, in our
view, perverse.
Aditi Kanjilal was never questioned why she was not there when
the body of the deceased was fished out. There is no evidence showing
that Smt. Aditi Kanjilal was totally unaffected by the death of her
husband. May be, as in almost all cases of death of a husband, Aditi
Kanjilal, was advised by friends, relatives and well-wishers to stay at
home. May be she was given sedatives. Moreover no question was
asked either to Aditi Kanjilal or to any of the other appellants or to
anyone else to ascertain whether Aditi Kanjilal went to see her
husband after the body was recovered.
The learned judge concluded that there was no evidence on
record that the deceased committed suicide. Rather, it was a case of
homicide, not a case of any accident. The conclusion of homicide is
apparently based on the last seen together theory coupled with the
opinion of the P.W. 36 in the post mortem report.
There are serious discrepancies in the oral evidence given by the
doctors who constituted the Board for post mortem examination of the
body of the deceased. The autopsy surgeon P.W. 36 deposed that the
original post mortem report was signed by all the doctors present at the
time of post mortem. The carbon copies were not signed by them.
P.W. 37 deposed that he did not sign the post mortem report, as
there was no rule that all the members of the Board should also sign
the report when the Head of the Department was there P.W. 38
however deposed that findings of a Medical Board were required to be
signed by all the members of the Board, and in this case all the
members had signed the post mortem report.
P.W. 39, the Principal of BSMCH under whose orders the Medical
Board was constituted, deposed that as per the Rules, the Board
members were all required to sign the report along with carbon copies
while the carbon was in place and this was done. He stated that his
signature was there in all the copies. P.W. 40, the superintendent of
the hospital and a member of the Board also stated that the Board
members were required to sign all the copies of the post mortem report.
The post mortem report tendered in Court as Exhibit 9 was only signed
by P.W. 36, but not the other doctors who constituted the Medical
Board.
The submission of learned counsel, appearing on behalf of the
respective appellants, that the opinion expressed in the post mortem
report was motivated, deliberately distorted and prompted by animosity
of Dr. J.N. Dey with Dr. Subrata Das and Dr. Koushik Chakraborty is
difficult to accept. Just as there is no evidence of any enmity between
the deceased and Dr. Subrata Das or the deceased and Dr. Koushik
Chakraborty or any other appellants. There is no evidence of any
enmity between Dr. J.N. Dey and Dr. Subrata Das or between Dr. J.N.
Dey and Dr. Koushik Chakraborty. Even assuming that the accused
doctors and the autopsy surgeon belonged to different associations or
had any professional rivalry, there was no reason to assume that the
post mortem was tailored just to implicate the two accused doctors in
charge of murder.
A careful analysis of the evidence would show that the
respondent No.37 concurred in the opinion of P.W. 36 that the injuries
were ante mortem and homicidal in nature. P.W. 38 who deposed that he did not give any final opinion on the death of the deceased deposed that all the members of the Board were satisfied that the injuries were ante mortem in nature, but did not form any final opinion on the cause of the death. P.W. 39 the Principal of BSMCH who fairly admitted that there was load-shedding for sometime while the post mortem was in progress and the post mortem was done under the light of pressurized kerosene lanterns (hazacs) also deposed that all the ingredients of homicidal death were found during post mortem. This witness also denied that there was any conspiracy among doctors.
The opinion on the cause of the death of the deceased, given in the post mortem report was not final but subject to the report of chemical examination of the viscera which was not produced at the trial. P.W. 37 a member of the Medical Board deposed that on post mortem examination of the body of the deceased all the members of the board were satisfied that the injuries were ante mortem in nature, but no final opinion was given as the viscera had been sent for examination.
The evidence adduced and in particular the evidence of the autopsy surgeon himself reveals that the body had decomposed. Once decomposition of the body sets in, many of the features found in certain types of death may not be visible. Moreover the Principal and the Superintendent of the Hospital who were members of the Medical Board have both deposed that for some time post mortem examination had to be done under three or four pressurized kerosene lanterns (hazacs) since there was power cut in the hospital area.
The opinion of a team of doctors with regard to the cause of the death of the deceased, upon post mortem examination is only an opinion based on the study of certain features noticed in the dead body. The opinion cannot conclusively establish the cause of the death, and more so in a case like this, where there are views of experts including renowned authors of Forensic Science suggesting that the features found in the dead body in case of asphyxial death are similar to the features found in the dead body in case of dry drowning, that consumption of alcohol can lead to cardiac arrhythmia and sudden death.
The finding of the learned Court that the accused appellants managed the investigating officer to prepare an inquest report in their favour, overlooking the external injuries is also not based on any evidence on record. On the other hand, not only some of the doctors present at the time of recovery of the dead body but also two of the divers who brought out the dead body deposed that there was no external injury.
The learned Trial Court committed serious error in holding that there was hyoid bone fracture. Even the autopsy surgeon Dr. J.N. Dey, P.W. 36 did not state that hyoid bone was fractured. On the other hand there is specific evidence of P.W. 37 that there was no fracture detected. The post mortem report reveals there was no fracture.
The aforesaid factual error committed by the learned Court below is, in our view, a vital error since fracture of the hyoid bone generally takes place in case of death by strangulation. The hyoid bone being intact, there is a strong possibility that the death was not caused by manual strangulation.
The finding of the learned Trial Court that Dr. Subrata Das and Dr. Koushik Chakraborty were the "main preceptors of the entire drama" is not based on any materials/evidence.
Purportedly on careful consideration on the entire evidence on record the learned Trial Court found that the charges under Section 147/149/302/207/34 of the Indian Penal Code, as framed against the accused appellants were proved and they had jointly, as members of a unlawful assembly with common object, committed murder of Dr. Swapan Kanjilal/the deceased at Mukutmonipur Dam and thrown the dead body within the dam water.
The learned Trial Court overlooked the plethora of evidence that the body was brought out exactly from the point where the deceased was stated to have drowned and this was about 70 ft. away from the island. Even the divers had to travel to the point from which the body was recovered in boats. There is no evidence to show that the appellants had any empty boat in their control which could have been used to throw the dead body into the dam water. The body of the deceased could not have been flung 70 feet, as observed above.
The learned Court also drew adverse inference from the fact that the appellant Aditi Kanjilal had not filed any complaint before the police authority making any kind of allegation in relation to the death of her husband, observing that it was natural that she should file a written complaint against the real culprits who caused the death of her husband. That Smt. Aditi Kanjilal had kept mum over the entire episode, was in the view of the learned judge a matter of acute suspicion.
The learned Court erred in law and facts in drawing adverse inference against Smt. Aditi Kanjilal for not filing any complaint in writing before the police making allegations in relation to the death of her husband. This, in our view, was no cause for suspicion. This Court fails to understand what complaint the wife could possibly, make if she saw her husband drowning and she was aware that the police had been informed.
It appears that the learned public prosecutor had argued that when there was no explanation given by the accused appellants as to what happened to the deceased after he had been abducted by them, the Court should draw the presumption that the accused appellants murdered the deceased. The accused appellants were liable to be convicted under Section 302 of the Indian Penal Code.
The deceased was in the company of the accused appellants on 16th September, 1990. The submission of the learned Public Prosecutor that the deceased was in custody of the accused persons had no basis whatsoever. There is, however, not a scrap of evidence to show that the deceased was abducted. There is no reason to presume that the deceased was abducted.
On the other hand the PW 31 has deposed that three doctors and a lady went to his office for permission to enter the dam area. The third doctor had to be the deceased. The evidence indicates that the deceased participated in the outing with enthusiasm. Moreover, it is not uncommon for the busiest professionals to indulge in outings with family and friends once in a while. The learned Trial Court held "On a careful consideration of the entire evidences on record this court finds that the charges U/Ss. 147/149/302/201/34 of I.P.C. dt. 10.03.98 as framed against the accused persons were proved and they jointly as members of an unlawful assembly with common object committed murder of Dr. Swapan Kanjilal at Mukutmonipur Dam on said isolated island on 16.09.90, then they threw the said dead body within Dam water. This action of murder by the accused persons was heinous as accused persons were all literate and sophisticated persons in the society. They should not be shown any kind of mercy under the law for their such heinous crime on said doctor, an innocent person. So they should be punished as they are found guilty for the offences u/ss. 147/149/302/201/34 of I.P.C. as they did murder of Dr. Swapan Kanjilal jointly."
In the judgment under appeal, the learned Trial court referred to the murder of a model Jessica Lal at Tamarind Court in Delhi by Manu Sharma, the son of a former Minister who was acquitted for absence of proof, as eye witnesses present at the time of the incident did not identify Manu Sharma. Jessica Lal was shot. There can be no comparison of the instant case with the case of Jessica Lal, who was shot. Reference by the learned Court to the facts of the aforesaid case is in our view wholly irrelevant and in any case misconceived. In disregard of the evidence on record the learned Court proceeded on the basis that the deceased had died when he "was near to the touch and custody of this group of accused persons including his wife". If the body of the deceased was recovered from the place where he was stated to have drowned, which was about 70 feet away from the island, it could not be said that the deceased was within touching distance from the accused appellants.
The finding of the Court below that the appellants Dr. Subrata Das and Dr. Koushik Chakravorty being influential doctors tried to influence many of the witnesses some of whom had to be declared hostile is wholly conjectural and based on suspicion. This is apparent from the observation of the learned Trial Court that Dr. Subrata Das and Dr. Koushik Chakravorty influenced witnesses who became hostile and other witnesses by money or by putting pressure. The learned Trial Court was not certain whether the witnesses were influenced by money or by exertion of pressure. As observed above, there is no evidence to show that any influence was exerted on the witnesses.
The finding of the learned Trial Court that the accused persons having influence even tried to purchase brain of police and investigating officers, who casually did not mention about any external injury on the body of the deceased is wholly conjectural and unsupported by materials on record. The learned Trial Court found that there was no evidence as to the length of time for which the deceased had been swimming but concluded that the defence plea that the deceased became tired and exhausted when he was swimming. The observation of the learned Trial Court that there was no evidence that the deceased has previously suffered cardiae pain or cardiac arrest after consuming liquor, is meaningless since death is known to have taken place in case of persons without previous history of cardiac ailments.
The learned Trial Court also found that there was no evidence of the quantity of liquor the deceased had consumed before he breathed his last and concluded that "the entire defence story is a got up case created later for the purpose of trial by brain of learned defence lawyer in collusion with Dr. Subrata Das and Dr. Koushik Chakravorty, the preceptors of the entire defence drama." Significantly even P.W. 36 deposed that he found undigested food mixed with alcohol in the stomach of the deceased during the post mortem examination.
In criminal jurisprudence, as prevailing in this country, a person is presumed to be innocent, unless he/she is proved guilty beyond all reasonable doubt. The evidence on record does not at all prove the guilt of the accused appellants and in any case not beyond reasonable doubt.
Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty, except in accordance with the procedure established by law. Apart from the right to life, the right to personal liberty is also a precious fundamental right guaranteed by our constitution.
In a case where the accused are charged under Section 302 of the Indian Penal Code, the Trial Court is cast with the paramount duty of careful analysis and scrutiny of the evidence on record, since conviction under Section 302 exposes the accused to the extreme punishment of deprivation of life or deprivation of person liberty for life.
The procedure contemplated in Article 21 must meet the test of reasonableness. A wrong appreciation of evidence resulting in unjust and illegal conviction of an accused results in gross violation of his/her fundamental right under Article 21 of the Constitution of India.
Before a person can be accused of grave crime, dispassionate honest investigation must lead to the conclusion that none other than the person suspected could have committed the crime. Mere suspicion cannot discredit a witness. When conviction is based on circumstantial evidence, the incriminating circumstances against the accused must form an unbroken chain, pointing to the guilt of the accused.
The conviction, in this case, is based entirely on the post mortem report, having regard to the opinion of the autopsy surgeon that the cause of the death of the deceased was manual strangulation ante mortem and homicidal in nature. The learned Court invoked the last seen together theory and took recourse to presumption under Section 114 of the Evidence Act.
The conviction of all the six accused appellants, in the three appeals before us, is based on the preliminary opinion of the autopsy surgeon, as given in the post mortem report that the cause of the death was manual strangulation, homicidal and ante mortem in nature. As pointed out by the learned Public Prosecutor Mr. Manjeet Singh in exemplary fairness, the final opinion was to be given upon receipt of the report of the viscera examination. The report of the viscera examination, if any, was never considered.
Whether the opinion in a post mortem report is preliminary or final, the opinion of the autopsy surgeon in a post mortem report cannot be conclusive a with regard to the cause of the death. Even if the opinion is a genuine bona fide opinion based on analysis of various factors, an opinion being an opinion, it cannot be the basis of criminal conviction, in the absence of any corroborating evidence. After all, if even the most renowned doctors can go wrong in diagnosis of ailments and diseases, can their opinion on the cause of death be sacrosanct. The answer, in our view, has to be in the negative.
In this case, some legitimate questions have been raised with regard to the opinion of the death which is based on standard texts. Dry drowning is not unknown. In fact in cross-examination, the autopsy surgeon has himself admitted that there might be case of dry drowning, but asserted that this was not such a case.
In this case, it is a matter of record that the body of the deceased was fished out from underneath 10 meters of water, in a rocky area. They body was fished out with the help of a long nylon rope which was looped to the body. Logs and bamboos were used from the water surface to locate the body. The possibility of strangulation marks and injury during lifting of the body of the deceased cannot be ruled out altogether, as observed above.
In this case the original post mortem report was not produced in Court as admitted by the autopsy surgeon P.W. 36. It is doubtful whether even the carbon copy was produced since the copy tendered in Court as exhibit 9 did not bear the signatures of all the Members of the Board present at the time of post mortem.
In this context, it would perhaps not being out of context to note that P.W. 39, the Principal of BSMCH, during the material time as also other Members of the Board categorically deposed that as per the rules all the Board Members present during the post mortem were suppose to sign the report and they actually signed the report. The P.W. 39 who had formed the Board and was himself present during post mortem categorically stated that no other report was prepared except for the original and the two carbon copies which were duly signed by them.
It would be essential to note that Dr. Joggeswar Sengupta, P.W. 38 who was one of the Members of the Board deposed that exhibit 9 was not the original post mortem report since the original post mortem report was signed by him and also the other members were present. The testimony of this doctor could not have been ignored. This doctor also stated that he could not pass any final opinion with regard to the cause of death of the deceased (page 147 of the Paper Book).
The Principal of BSMCH who was the Chairman of the Board also deposed that when his signature was not there in the post mortem report being exhibit 9 there was no authenticity of that post mortem report. He also stated that after completion of the post mortem report final opinion regarding the cause of death was kept reserved till receipt of the report of the Forensic Department.
The learned Court below ignored the fact that at the time of inquest P.W. 41, Satya Ranjan Dey who was present did not find any major injury except for the discolouration near the chest and swollen of the dead body of the deceased.
The finding of the learned Court below that Dr. Kaushik Chakravary and Dr. Subrata Das belong to "anti party" of P.W. 36 whose "head they could not purchased" is totally perverse and not based on any evidence of record. There is nothing to show that there was any attempt on the part of Dr. Kaushik Chakravarty and Dr. Subrata Das to purchase anyone. Nor there was any material to show that there was any enmity either between Dr. Kaushik Chakravarty and Dr. Subrata Das, either with P.W. 36 or with the deceased.
As observed and held above, the judgment and order under appeal is based on suspicion. In no circumstances can a conviction be passed on suspicion.
To establish the charges levelled against the accused appellants, the prosecution was required to prove that the deceased had died otherwise than in normal circumstances, the death was not suicidal or accidental, the death was caused by and/or as a consequence of the death of the accused, the accused had no legal excuse or defence for causing such injury and the accused did the act with the intention of causing death, or such bodily injury as the accused knew it likely to cause death. In the instant case all that has been proved beyond doubt is that the deceased died and that he died in course of an outing in the Kangshabati Dam area along with the accused appellants.
In Surajit Sarkar Vs. State of West Bengal reported in (2013 (1) AICLR 13 the Supreme Court held as follows:-
".... If the investigation results in the real culprit of an offence not being identified, then acquittal of the accused must follow. It would not be permissible to ignore the defects in an investigation and hold an innocent person guilty of an offence which he has not committed. The investigation must be precise and focused and must lead to the inevitable conclusion that the accused has committed the crime. If the investigating officer leaves glaring loopholes in the investigation, the defence would be fully entitled to exploit the lacunae. In such a situation, it would not be correct for the prosecution to argue that the Court should gloss over the gaps and find the accused person guilty. If this were permitted in law, the prosecution could have an innocent person put behind bars on trumped up charges. Clearly, this is impermissible and this is not what this Court has said."
The appeals are allowed. The judgement and order of conviction and sentence passed by the learned Court below are set aside. The accused appellants shall be set free. Bail bonds, if any, shall stand discharged.
(INDIRA BANERJEE, J.) (KANCHAN CHAKRABORTY, J.) LATER An advance copy of the operative part of the order be communicated to the concerned Correctional Home by the department concerned through Special Messenger at the cost to be deposited by the appellants.
Criminal Section is directed to supply urgent photostat certified copies of this order to the parties, if applied for, upon compliance of necessary formalities.
(INDIRA BANERJEE, J.) (KANCHAN CHAKRABORTY, J.)