Calcutta High Court
Arjun Singh vs State Of West Bengal on 18 May, 2005
Equivalent citations: (2006)3CALLT121(HC), 2006(1)CHN600
Author: Vikas Shridhar Sirpurkar
Bench: Vikas Shridhar Sirpurkar
JUDGMENT Amit Talukdar, J.
1. Even in her wildest dream perhaps she could not have imagined that her (P.W.15) little son who went to sleep with her in the house of P.W.3 where she took shelter for the night along with her father (since deceased) and others as reconciliatory steps to rehabilitate her in her husband's (appellant) house proved abortive, as she had a jinxed matrimony, on the night of incident would be snatched from her side at midnight by 4/5 miscreants (read the accused) and his body would be found floating by P.W.5 in the well of P.W.2 on the next morning.
2. This formed the subject-matter in the trial which saw the conviction of the appellant therein and hence this appeal at his behest who feels that he does not deserve the fate suffered by him in the trial.
3. We have now to see whether his fate remains sealed.
4. Pursuant to a chargesheet submitted by P.W.9. Sakti Sankar Singha against the appellant and four others (since acquitted) they were arrayed in Sessions Trial No. 2 of 1990 before the learned Additional Sessions Judge, Purulia to answer the following charges :
Firstly : That you, on or about the 4th day of April, 1989 corresponding to 22nd Chaitra, 1392 B, S. at Barabaket you (Arjun Singh) instigated to do an illegal act to murder your son Kalindar Singh and that you are a party to a criminal conspiracy for committing the said murder which is punishable with death or imprisonment for life etc. and thereby committed an offence punishable under Section 302/120B of the Indian Penal Code,....
Alternatively, "That you, on or about the 4th day of April, 1989, corresponding to 22nd Chaitra, 1395 B.S. at Barabaket you kidnapped Kalindar Singh in order that the said Kalindar Singh might be murdered and thereby committed an offence punishable under Section 364 of the Indian Penal Code,....
5. The appellants were placed on trial which saw, at least, 15 persons in the array of witnesses; of whom P.Ws. 8, 9,12,13 and 14 were the police witnesses. P.W.14 was the then Officer-in-Charge of Jhalda Police Station, who took down the Information lodged by the appellant and reduced it into General Diary Entry No. 148 (Ext. 3) on 4.4.86 noting down the fact that some miscreants had entered into the house of P.W.3 and kidnapped the child of P.W.15. P.W.13 a constable carried the deadbody of the child to the morgue. P.W.12 partly investigated the case. P.W.9 on completion of investigation submitted the chargesheet whilst P.W.8 a head constable accompanied the then Officer-in-Charge of the Jhalda Police Station to Barabaket village and arrested the appellant from the house of Jitu Singh wherefrom a torch light was recovered under a seizure list (Ext. 2).
6. P.W.7 the Medical Officer of the Sadar Hospital, Purulia examined the body of the child on 06.04.86 at 12-00 p.m. and opined that death was due to asphyxia as a result of throttling which was ante-mortem and homicidal in nature and not due to drowning.
7. P.W. 15 was the mother of the deceased child and estranged wife of the appellant from whose side the said child was taken away and ultimately the body of the child was discovered floating in the next morning from a well, owned by P.W.2. P.W.6 was the Chowkidar of the village, who was first reported about the incident and on the next morning after the body was detected, kept guard over the same until the police came. P.Ws.1, 2, 5, 10 including P.W.15 were all declared hostile. P.W.3 a resident of Chhotabaket, who played host to P.W.15 and her father (since deceased) along with some other villagers on the night of occurrence after they went to the house of the appellant and were refused entry. P.W.11 also deposed with regard to strained relationship and the attempt for settlement as also the recovery of the deadbody.
8. The defence was a plea of not guilty.
9. Learned Additional Sessions Judge, Purulia by his judgment and order dated 31.10.95 found that the charge in respect of Section 302/120B of the Indian Penal Code was brought home against the appellant and he was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000/- in default of which he will suffer further rigorous imprisonment for another three years and in the event, the fine is realised the same would be made over to the de facto/complainant (P.W.15) as a token of compensation. However, the other accused, who faced the trial with the present appellant, stood acquitted as the learned Trial Court was of the view : "as there is no evidence even by circumstance against the other accused persons ...." *******
10. Shri Kishore Mukharji, learned Senior Advocate appearing with Shri Ashoke Kumar Biswas, Shrimati Mithu Monda.1 and Shri Partha Sarathi Das for the appellant submitted that the entire prosecution case was based on suspicion and suspicion alone and barring suspicion there is no tangible proof to connect the appellant with the crime. Learned Senior Advocate wondered that on the basis of such weak evidence, which was only based on suspicion, it was extremely unsafe to uphold the conviction of the appellant.
11. Learned Senior Advocate submitted that this case is entirely based on circumstances and there is absolutely no eye-witness. He further laid great stress on the fact that the body of the child (Kalindar Singh) was found floating in a well, which was owned by P.W.2, situated in the onion field of P.W.5. According to the learned Senior Advocate since the well was not in the exclusive possession of the appellant it was unsafe to link the recovery of the body of the child, and that too not being at his instance, in the absence of any other clinching materials.
12. Learned Senior Advocate made a selective choice of the pieces of evidence to illustrate his point that either none had seen the appellant to take away the child from the custody of P.W.15 while she was sleeping by her side or the child was done away with by the appellant under any circumstances. More particularly, according to the learned Senior Advocate for the appellant the acquittal of the other accused, who faced the trial along side the present appellant has improved the situation in his favour and he has prayed for allowing the appeal by way of scuttling the conviction and sentence recorded by the learned Trial Court.
13. Shri Lalit Mohan Dutta, learned Senior Counsel with Ms. M. Gomes for the State rebutted the stand of the learned Senior Advocate for the appellant. According to the learned Senior Counsel for the State the very fact that there was a strange relationship between the appellant and his estranged wife (P.W.15) over the issue of the paternity of the child (the deceased) as spoken by P.W.3 which was very strong circumstances against the appellant and very rightly the conviction was recorded by the learned Trial Court for which he did not see any wrong. Shri Dutta further sought to develop his point with regard to the question of denial of paternity of the said child (deceased) by the appellant by way of referring to the evidence of P.W.3 in whose house P.W.15, and her father and others were guests on the fateful night when the child was taken away from the said of P.W.15.
14. Shri Dutta, learned Senior Counsel read out copiously from the evidence of P.W. 12 the Investigating Officer of this case. He submitted that very strong suspicion along side the circumstances, which were revealing, could not be ignored and the Trial Court very rightly found the appellant guilty. Shri Dutta took us to the contents of Ext. 3 i.e., the G.D. Entry No. 148 dated 5.4.88 diarised by P.W. 15 at the behest of the appellant.
15. Shri Dutta on the basis of illustration of the said piece of evidence (Ext. 3), which would be adverted to us later, submitted that it was the very conduct of the appellant in lodging the said report which espoused his culpability and Shri Dutta prayed for dismissing the appeal.
16. From an appreciation of the evidence and materials on record, in the backdrop of the rival contentions of Shri Mukharji, learned Senior Advocate for the appellant and Shri Lalit Mohan Dutta, learned Senior Counsel for the State we find that this is a case based purely on circumstantial evidence,
17. Before embarking on an analysis of the evidence to form an opinion, we feel it appropriate to address ourselves with the hallowed and much emphasized principles relating to circumstantial evidence as crystallized by the galaxy of decisions of the Apex Court. The three-touch-stone, which satisfy the criteria for basing a conviction on circumstantial evidence are :
i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and very firmly established;
ii) The said circumstances should be of such a definite tendency that it unerringly points towards the culpability of the accused and none else; and lastly,
iii) Such circumstances, which if taken as a whole, should be able to form a chain so complete that there is no escape from the conclusion that it was none else but only the accused who can be connected with the crime.
18. The aforesaid principles have been as old as the i ills by virtue of the decisions of the Supreme Court and more particularly, in the recent decision of Anil Kumar Singh v. State of Bihar 2004 SCC (Cri) 1167. A Bench of the Supreme Court consisting of the Hon'ble Mr. Justice R.C. Lahoti (as the Chief Justice of India then was) and the Hon'ble Mr. Justice Brijesh Kumar held:
8. It is well-settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused.
19. More recently we have the decision of Usman Mian and Ors. v. State of Bihar 2005 SCC (Cri) 567, where Arijit Pasayat, J. speaking for the Division Bench of the Hon'ble Mr. Justice Arijit Pasayat and the Hon'ble Mr. Justice C.K. Thakker wrapping up the various decisions on this point since the turn of the Century till the other day held :
...that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused....
20. Now let us sec as to whether from amongst the various evidence (P. Ws. 1, 2, 3, 5, 6, 10, 11 and 15) how far the prosecution has been able to prove its case beyond any reasonable doubt.
21. We find that the genesis of the prosecution case rests on the evidence of P.W.15, who is the star witness of the prosecution, although for reasons best known to her she turned hostile. She happens to be the estranged wife of the appellant. She had three issues from the wedlock. The youngest of the issues Kalindar, was born at the house of her father (not examined) where she went two months before the date of her childbirth. After the same she was taken back by the appellant along with his youngest son and we find from her evidence that :
Since then, I used to live with my house there. During my stay there was a quarrel between myself and my husband. For that reason, I went to my father's house. But, Arjun, my husband, did not take me back. Thereafter, 8/9 years ago, my father came to the house of my husband to settle the matter with the Panchayat. But to no effect. Thereafter, on that day, we came to my maternal uncle Bharat Singh's house at Chhotabaket. In the night, we were sleeping on that day. While I was sleeping in the house of my maternal uncle my youngest son was with me. Then suddenly 6/7 persons came to me and snatched away my youngest son. I cannot say who are they. I raised alarm and I became senseless. I could not identify them. On the next morning, my son was not traceable. On the next morning. I came to know that somebody found the deadbody of my son inside the well of Mahato. I was not allowed to see that....
22. This is precisely the profile of the prosecution case.
23. The impact of the evidence of P.W.15, who although turned hostile, has to be seen in the light of the other attending circumstances and conjoint evidence of similarly hostile witnesses (P.Ws. 1,2,5,10 and P.W.6 Chowkidar of the village).
24. Before appreciating the same we feel it would be profitable to see what is the current position with regard to the appreciation of a witness who is permitted to be cross-examined by the person who has called in as witness and in legal parlance is widely known as hostile witness. Law, in relation to the appreciation of such evidence, which is taken care of by virtue of Section 154 of the Indian Evidence Act, has undergone a noticeable and sweeping change. Now, a Court would be extremely slow to discard on a wholesale basis such evidence but is entitled to cull out the relevant portion of such evidence which otherwise fits in with the other evidence and is in tune with the rest.
25. The Supreme Court in a catena of decisions has held that the evidence of a hostile witness is not to be rejected wholesale merely because the witness has turned hostile. In State of Gujarat v. Anirudh Singh . Their Lordships held that duty is cast on the Court to carefully analyse the evidence and reach a conclusion whether that part of the evidence which is consistent with the prosecution is acceptable or otherwise; and merely because a witness is declared hostile by the party calling him as a witness does not make him absolutely unreliable so as to exclude his evidence from consideration altogether (See : Syad Akbar v. State ).
26. Very recently the Supreme Court in Aman Kumar and Anr. v. State of Haryana 2004 SCC (Cri) 1266, has held :
Merely because he was termed as a hostile witness his entire evidence does not get affected.
27. As such, we would be not step slow, one pace forward while appreciating the volume of witnesses who have for some unknown reasons, perhaps known to them, have chosen to attract the wrath of Section 154 of the Evidence Act.
28. Applying the ratio of the aforesaid decisions of the Supreme Court we have appreciated the evidence of the hostile witnesses; but we fear that even if we cull out those pieces of their evidence which is pari materia with the other evidence - hostile and otherwise, it may only sound a common ring tone but does not venture to implicate the appellant for the purpose of forming an opinion with regard to his guilt.
29. P.W. 3 is the witness second in importance, examined by the prosecution although he has been claimed as a maternal uncle by P.W.15, however, P.W.3 flatly denied any such relationship. His evidence is of some interest, which has to be looked into in some details. He knows P.W. 15 and has spoken about the marriage between the appellant and P.W.15. He also deposed that the appellant has children, two of whom resides with at Barabaket while the other son stayed with his maternal uncle along with P.W.15 in the house of Rupam.
30. We feel to get a correct grip over the matter the evidence of P.W.3 should be quoted ;
Kiranbala only visited my house ones and that was on 20th/21st Chaitra about 8/9 years ago. With 2/4 villagers along with Rupam Singh Kiranbala went to the house of Arjun Singh did not permit any of them to enter his house and he also denied the paternity of the child. At this, and at the request of those persons I gave shelter for the said night in my house.
At 11.00/12.00 night Kiranbala cried out. Kiranbala disclosed that the baby was missing. We searched for the baby but in vain. We then went for beds. Rasaraj (P.W.1), Chowkidar (P.W.6), Budhu (P.W.4), Baburam (not examined) came to our house in that night.
I was attracted by the shout of one Radhu Mahato (P.W.5). Radhu told me that some deadbody was floating in the well of his field. I noticed that the deadbody of that boy who was given shelter in my house in the night was floating in the water of the said well.
31. A combined reading of the evidence of P.W.3 who hosted P.W.15 at the night when her child was taken away by 5/6 persons, shows that there was a strange relationship between her and the appellant as rightly shown by Shri Lalit Mohan Dutta, learned Senior Counsel for the State and on the fateful night when P.W.15 stayed as a guest of P.W.3 her child was taken away and subsequently his body was found floating in the well on the next morning.
32. About the relationship between the appellant and P.W.15 being strained we have the evidence of P.Ws.3, 11 and 15 and that the child was taken away by some miscreants was heard from P.W.15 immediately after the same has been spoken by, apart from P.W.3 the host of the night, P.Ws. 1, 11 and 15.
33. The recovery of the deadbody from the well of P.W.2 which was first noticed by P.W.5 owner of the onion field where a well was situated and the lifting of the said body has been spoken by P.Ws. 1, 2 3, 5, 6 (the village ChowkidarJ and 11.
34. Upon an assessment of the entire evidence what we find is a haze of pure suspicion and nothing more. We have looked into the evidence - the relevant direct evidence as well as the supporting evidence and do not find that there is even isolatedly any incriminating circumstance to link the appellant with the murder of the little child Kalindar.
35. Even P.W.15 the star witness of the prosecution who has spoken about the denial of paternity of the child as also P.W.3, question of quarrel and being driven away on the fateful night when she had to take refuge in the house of P.W.3 from where her child was taken away has not in so many words implicated the appellant directly with the commission of the murder.
36. Recovery of the deadbody which was first seen by P.W.5 and thereafter by P.Ws. 1,2,3,11 and Chowkidar (P.W.6) cannot even faintly link the appellant with the crime in any way.
37. The appellant was produced before the learned Sub-Divisional Judicial Magistrate, Purulia after his arrest on 7.4.86 along with the other co-accused - Jitu Singh, Krishna Singh, Balia Mahato (since acquitted). From the evidence of P.W.12 the Investigating Officer it appears that on the basis of the statement made by P.W. 15 he forwarded the same to the Jhalda Police Station for starting a case through a home guard. Written statement (Ext. 4) which was filed up by P.W.14. He took up investigation and in course of the same the body was recovered from the well and after he prepared the inquest report he sent the body for post-mortem examination through P.W.13. He also prepared the sketch map (Ext. 6 collectively) then arrested the appellant along with Jitu Singh and Krishna Singh and subsequently arrested Balia Mahato on 6.4.86 along with a tangi from his house.
38. What does this prove ?
39. It is only that the cloud of suspicion has become thicker. Thus far and no further.
40. Motive has been imputed against the appellant to the extent that since he denied the paternity of the child he had the motive to do away with the child, who seems to be a thorn in the flesh in the life of the appellant. Motive becomes inconsequential when there is direct evidence. However, in a case of circumstantial evidence motive has some appeal before the Court for judging the guilt of the accused. The same is relevant under Section 9 of the Evidence Act.
41. In Surinder Pal. Jain v. Delhi Administration , it was held :
In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case.
42. But, absence of motive, as found earlier, would not be relevant when the other evidence is overwhelming. Here even if we exclude for a moment the existence of motive from our mind we do not find any overwhelming circumstance, as indicated earlier, to connect the appellant.
43. Where there is unimpeachable and direct evidence available before the Court obviously motive loses much of its significance but, where motive is established it provides essential material to connect to the chain of circumstances and it can only strengthen the case of the prosecution on a circumstantial evidence. But, motive by itself cannot form the basis of any finding in the absence of other attending evidence in a case of circumstantial evidence, which can only lead assurance to the case and by itself cannot have any impact.
44. The motive that has been imputed here, apart from being very isolated and lean, we do not find that the same has been strengthened by any other circumstances and, as such, we have no hesitation to discard the same.
45. The learned Trial Court found the conduct of the appellant in lodging the G.D. Entry (Ext. 3) intimating the disappearance of his child as a conduct against the appellant. We agree with him that subsequent conduct of the appellant which proceeds to prove a relevant fact under ordinary circumstances it would have been admissible under Section 8 of the Evidence Act to connect the appellant with the crime. But, here again we find that conduct by itself is a very weak piece of evidence. Unless there is connecting circumstances leading to the crime, which would link the accused on the basis of a principle fact, demolishing the presumption of innocence thus leaving aside all other reasonable hypothesis, it not would be safe to proceed on that basis.
46. Even at the cost of repetition we must say that moral conviction and legal proof cannot have the status of twin sisters in a Criminal Court.
47. Experienced by the tenor of the evidence which is purely circumstantial in nature, laced with suspicion we cannot resist the temptation of referring to the decision of the Supreme Court in Sudama Pandey and Ors. v. State of Bihar , quoting with approval the decision of Taniben Pankaj kumar Divetia v. State of Gujarat , held :
...the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions.
48. As we have found the circumstances, which have been read by us very closely, do not even remotely suggest that the appellant can be linked with the commission of murder we are of the firm view that the chain in the circumstances are not complete leaving aside all other reasonable hypothesis inconsistent with the guilt of the appellant.
49. Suspicion ?
50. What is the intrinsic impact of suspicion in management of a criminal trial where the prosecution has its basis on the same without any direct proof?
51. Indeed the offence is gruesome and it revels against the human conscience. A weeping mother (P.W.15) is before us who suffers the distraught pain of losing her child from her side while in sleep. Tears have since replaced sleep in her eyes. We can conceive of the position.
52. But after all, we are the creatures of law, and we have to proceed with the letters of the same.
53. The Court, however, unkind it may be, has to act only on legal evidence and cannot be guided by emotions and ecstasies.
54. Suspicion, however, strong it may be, if cannot replace legal proof and as R.C. Lahoti, J. (as the learned Chief Justice of India then was), speaking for 3-Judge Bench of the Supreme Court in Subhas Chand v. State of Rajasthan , consisting of the Hon'ble the Chief Justice Dr. A.S. Anand The Hon'ble Mr. Justice R.C. Lahoti (as the learned Chief Justice then was) and the Hon'ble Mr. Justice Ashok Bhan held:
24. Thus, none of the pieces of evidence relied on as incriminating, by the Trial Court and the High Court, can be treated as incriminating pieces of circumstantial evidence against the accused.Though the offence is gruesome and revolts and human conscience but as accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. In Shankarlal Gyarasilal Dixist case 2 this Court cautioned - 'human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions' (SCC p. 44, para 33). This Court has held time and again that between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict.
55. In the light of the aforesaid discussion we have found that appellant shared a discordant marital life over the suspected paternity of the child, that he was approached on the said night itself for restoring P.W.15 to her matrimonial home and then there is evidence of P.W. 14 who took down the information given by appellant and diarised the same being G.D.E. No. 148 dated 5.4.86 (Ext. 3) wherein fact of missing of his son and denial of paternity of the child was recorded. Pursuant to the same P.W.14 deputed a constable to go to the village and work out the information with the appellant.
56. These are the circumstances that distinguish the other accused, with the appellant, who had already been acquitted by the learned Trial Court for want of evidence.
57. In other words the appellant stands as of the same footing barring those circumstances.
58. Now as we have seen earlier those are such pieces of circumstances which are extremely weak by itself in the absence of any connecting link with the principal fact beyond an unimpeachable manner.
59. Leaving apart the ruptured matrimonial relationship the two other circumstances - (a) P.W. 15 along with others visiting the house of the appellant on the very day of incident itself and being turned away and (b) lodging of the Diary (Ext. 3) by the appellant.
60. By itself these are the past and subsequent conduct of the appellant which though admissible under Section 8 of the Evidence Act are unsafe to rely upon in the fact situation of the present case.
61. Excluding the same we now find that the appellant shares the same status with the other accused who has since been cleared by the learned Trial Court. We see no worthy reason to differentiate between them.
62. Accordingly, we allow the appeal and set aside the conviction and sentence recorded by the learned Trial Court in respect of the charges against the appellant.
63. The appellant is discharged from his bail bond.
64. Appeel allowed.
Vikas Shridhar Sirpurkar, C.J.
65. I agree.