Calcutta High Court (Appellete Side)
Jamat Ali Sheikh @ Mondal vs The State Of West Bengal on 6 January, 2011
Author: Kalidas Mukherjee
Bench: Kalidas Mukherjee
1
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
PRESENT:
THE HON'BLE MR. JUSTICE KALIDAS MUKHERJEE
AND
THE HON'BLE MR. JUSTICE Md. Abdul Ghani
CRA NO. 414 OF 2000
Jamat Ali Sheikh @ Mondal
Vs.
The State of West Bengal
For the Appellant: Mr. Subir Ganguly
Mr. Kazi Safiuddin Ahmed
Mr. Manas Kr. Das
For the State : Mr. Tapan Dutta Gupta
Mr. Kallol Mondal
HEARD ON: 20.12.2010 & 21.12.2010
JUDGMENT ON: 06.1.2011.
KALIDAS MUKHERJEE, J.:
1. This appeal arises out of the judgment of conviction and sentence passed by the learned Additional Sessions Judge, 4th Court, Nadia in sessions Trial No. V of March, 2000 corresponding to sessions case No. 21 of May, 1996 convicting the appellant under Section 302 Indian Penal Code and sentencing him to suffer imprisonment for life and also to pay a fine of Rs.5,000/- in default to suffer S.I. for three months.
2. The prosecution case, in short, is that Manjari Bibi was married with Jamat Ali in the month of Chaitra, 1398 B.S. The marriage was registered. After marriage Manjari was subjected to torture in her matrimonial home 2 by her husband, father-in-law and mother-in-law. Thereafter Jamat Ali started living in the father's house of Manjari from the month of Bhadra. On 15.10.1992 at about 12.30 A.M. Jamat Ali took Manjari to the field for attending nature's call, but, they did not come back home on that night. On the next morning the informant and others searched for them. In the afternoon at about 5.30 P.M. the dead body of Manjari was found lying on the paddy field. In absence of Manjari, Jamat Ali used to talk to Kouser Ali and Ubai Ali. The informant expressed his firm belief that Jamat Ali in collusion with Kouser and Ubai caused the murder of Manjari and left her body in the paddy field.
3. After completion of investigation, charge sheet was submitted. The learned Trial Judge framed charge under Section 302/34 I.P.C. to which the appellant pleaded not guilty and claimed to be tried.
4. The learned Trial Judge upon consideration of the materials on record passed the impugned judgment of conviction and sentence holding that from the evidence on record it would be clear that at midnight Jamat Ali took away Manjari for easing towards the field and thereafter Manjari did not come back and subsequently the dead body was recovered from the field. The learned Judge also observed that from the circumstances it was established that Jamat Ali intentionally took away his wife Manjari towards the field and murdered her and thereafter he fled away leaving the dead body in the field and absconded for three months. The learned Judge held that if the accused persons had the intention to commit murder by causing 3 death of Manjari Bibi in that event it would be improbable for them to wait for about 1½ hours after causing murder so that they could be seen by others to flee away. The learned Judge in this regard disbelieved the testimony of P.Ws. The learned Judge held that there was no cogent and reliable evidence on record to implicate the accused Ubai and Kouser in the commission of the alleged offence. The learned Judge acquitted Ubai and Kouser, but, convicted Jamat Ali and passed the sentence under the impugned judgement.
5. Mr. Subir Ganguly, learned Counsel appearing for the appellant submits that in the written information lodged with the P.S. it was mentioned that the incident took place in the night of 15.10.1992, but, the formal F.I.R. shows that the incident took place on 16/17.10.1992 at about 00.30 hours. Mr. Ganguly submits that the information was lodged with the P.S. on 17.10.1992 at 19.45 hours. Mr. Ganguly submits that in the charge framed by the learned Judge there is no mention as to the time of the alleged incident. Mr. Ganguly submits that the F.I.R. was sent by the P.S. to the learned Magistrate on 24.10.92, although the P.S. is 17 K.M. away from the place of occurrence. Mr. Ganguly submits that in view of the discrepancy between the written information lodged with the P.S. and the formal F.I.R. with regard to the date of incident, the non mentioning of time in the charge framed by the learned Trial Judge assumes much importance. Mr. Ganguly submits that as regards the source of identification it is in evidence that the P.Ws tried to search out Manjari at 4 night and with the help of torchlight they could identify the appellant. Mr. Ganguly in this regard submits that the said torch light was not at all handed over to the I.O. and the non seizure of the same raises suspicion as to the alleged identification.
6. Mr. Ganguly submits that the P.Ws have stated that during night they found in the light of the torch that the appellant was fleeing, but, from the cross-examination of the I.O. it would appear that this vital point regarding identification with the help of torch was not specifically stated by the witnesses to the I.O. and this contradiction on material point speaks of embellishment and fabrication. Mr. Ganguly submits that the witnesses stated that this appellant and other accused persons were fleeing away from the field, but the learned Trial Judge held that other accused persons namely Ubai and Kouser were not involved in the commission of the alleged offence. Mr. Ganguly contends that since other accused persons who were allegedly present with Jamat Ali have been acquitted, this appellant also ought to have been acquitted by the learned Trial Judge.
7. Mr. Ganguly submits that Jamat Ali divorced Manjari on 30.4.1992 and Talaknama has been marked Exhibit 'A'. Mr. Ganguly thus contends that when Jamat Ali divorced Manjari long before the date of alleged incident and in absence of any evidence that even after Talaknama Jamat Ali and Manjari lived together in her mother's house, it can never be said that Jamat Ali was present in the mother's house of Manjari and took her away at mid night towards the field to attend the nature's call. Mr. Ganguly 5 submits that in view of the Talaknama this contention of the prosecution that Jamat Ali took away Manjari from her mother's house at mid night is absolutely incredible.
8. Mr. Ganguly submits that Manjari had earlier filed a case under Section 498A against Jamat Ali. It is contended that it would appear from the evidence of P.W. 4 that there were 12 male and female members in the house of P.W. 1, but, the brother and mother of Manjari who were residing in that house were not examined by the prosecution. Mr. Ganguly submits that as per evidence of P.W. 1 Jamat Ali took away Manjari towards the field, but, P.W. 2 stated that she narrated the incident to P.W. 1. Mr. Ganguly has referred to and cited the decisions reported in (2003) 3 SCC 175 [Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. & another] and AIR 1990 SCC 2140 [Kishore Chand Vs. State of Himachal Pradesh].
9. Mr. Tapan Dutta Gupta appearing on behalf of the State submits that it is a case of circumstantial evidence and it is based on the theory of last seen together. Mr. Dutta Gupta put much emphasis on the circumstance of post occurrence abscondance of the accused and in this regard has referred to the provision contained in Section 8 of the Evidence Act. Mr. Dutta Gupta has taken us through the evidence of P.W. 1 to P.W. 4 who have stated that they had seen Jamat Ali to take away Manjari to the field. Mr. Dutta Gupta contends that the evidence of the P.Ws is clear on the point that Manjari and Jamat Ali were last seen together. Mr. Dutta Gupta 6 further contends that no reliance can be placed upon the alleged Talaknama (Exhibit - A), in as much as, the said document was not proved according to law. Mr. Dutta Gupta has referred to and cited the decisions reported in 2010(3) AICLR 711 [Rabu Sk. @ Jainuddin Sk. Vs. State of West Bengal] and (2010) 3 C.Cr.L.R.(SC) 91 [Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi).
10. In the complaint it has been mentioned that the incident occurred on 15.10.92 at about 00.30 hours. The formal F.I.R. shows that the incident occurred on the night of 16/17.10.92 at 00.30 hours and the incident was reported to the P.S. on 17.10.1992 at 19.45 hours which was about 17 K.M. away. The F.I.R. was sent to the learned Magistrate on 24.10.92. As regards the charge framed by the learned Court below there is no mention of the time when the alleged incident took place. The non-mentioning of the time is not in conformity with the provision contained in Section 212 Cr.P.C. It is an infirmity in the framing of the charge.
11. As regards the taking away of Manjari by Jamat the prosecution case rests on the slender evidence of P.W. 1 to P.W. 4 that they saw with the help of torchlight that Jamat and other accused persons were fleeing away from the field. On this point learned Trial Judge held that the statement of P.W. 2, P.W. 3 and P.W. 4 that they saw the accused persons to flee away from the field was definitely introduced for the purpose of this case and the facts and circumstances and the evidence on record did not suggest that they saw the accused persons to flee away and, as such, the learned Judge had 7 no reason to rely upon those statements. The learned Judge further held that the version of the P.Ws that the accused persons murdered the victim Manjari Bibi and waited for about 1½ hours in the field giving an opportunity to others to identify them or to see them on that place was improbable. The learned Judge acquitted the other accused persons namely Ubai and Kouser, but, inspite of that the learned Judge held this appellant guilty and passed the sentence as stated above.
12. It is in the evidence of P.W. 1 that at about 11.30 /12.00 hours Jamat Ali and his wife Manjari were going towards the field behind his house to ease themselves; after 1½ hours from that time the mother of Manjari began to raise hue and cry as to why her daughter did not come back; they searched for them but could not find them out. In the cross-examination he has stated that after coming to mother's house Manjari instituted a case against her parents in-law and her husband and thereafter she did not come back to her husband's house. He has further stated in cross- examination that he only saw Ubai and Kouser to visit and talk to Jamat; by the side of the house of Manjari's mother there were the houses of Ohed, Taher and Techer who were independent persons. But it appears that none of these independent persons has been examined in this case.
13. P.W. 2 has stated that on the date of incident at 10/12 at night Jamat took his wife towards the field on the plea of easing and when they were going, she woke up and since then she did not see her sister Manjari alive. She has further stated that when her sister did not come back then she, her 8 mother and 'Boudi' (P.W. 4) went to the field in search of them taking a torchlight, but they did not find Manjari. She has stated that she saw Jamat, Ubai and Kouser to flee away from the field at that time. In the cross-examination she has stated that before going to the field she stated the fact to Maifal Mondal, but, did he not accompany them; Maifal went to the field in the morning of the following day. So from the evidence of P.W. 2 it is clear that P.W. 1 did not go to the field on that day at night and his evidence to the effect that he saw Jamat fleeing away from the field cannot be relied upon. P.W. 1 derived his knowledge from P.W. 2.
14. P.W. 2 has stated that she saw with the help of torchlight that accused persons were fleeing away.
15. P.W. 3 is the mother of Manjari. She has stated that at about 1.00 A.M. on the date of incident, Jamat called Manjari to accompany him to the field for the purpose of easing and thereafter they did not come back. She has stated that her daughter Bolta (P.W. 2) and daughter-in-law Chhiaron (P.W. 4) went to search for them and found with the help of torchlight that Jamat, Ubai and Kouser were fleeing away from the field. In the cross- examination she has stated that she did not tell the I.O. that P.W. 2 and P.W. 3 went to search for Manjari taking the torchlight.
16. P.W. 4 has stated that on the date of incident at about 11/12 at night Jamat Ali came after witnessing a video show to his mother-in-law's house and at that time Manjari was sleeping; Jamat Ali took her to the field for easing; but they did not come back after 1½ hours; she and Bolta and her 9 mother-in-law went towards the field taking a torchlight and found that Jamat, Kouser and Ubai were fleeing away from the field. In the cross- examination she has stated that her husband Yamin was an accused in many dacoity cases and on the night of incident 10/12 male and female members were residing in the house. In the cross-examination she has stated that they took the torchlight as the night was dark and she did not show the torchlight to the I.O.
17. From the cross-examination of the I.O. (P.W. 8) it would appear that P.W. 2 did not state specifically to the I.O. that they went to search for Manjari and with the help of torchlight found Jamat Ali, Kouser and Ubai to flee away from the field. He has also stated that she did not state before him specifically that she saw Manjari and her husband going towards the field for easing and she did not show him the torchlight. On this point the other P.Ws also stated in the similar manner to the I.O. So on the point of identification by torchlight we find that the torchlight being the means of identification was not handed over to the I.O. The contradiction on the point that they saw the appellant and others to flee away from the field was, therefore, made for the first time at the time of trial. It is speaks of embellishment and fabrication. On this point Mr. Ganguly has referred to the decision reported in (2003)3 SCC 175 (Supra) wherein it was held that witness not stating the particular fact to the police in course of investigation and the prosecution seeks to prove the said fact through that witness, evidence of that witness regarding the said fact was of no 10 significance. In the instant case we find that the point of identification with the help of torchlight to the effect that the appellant and others were found fleeing away from the field was very vital. This is the only circumstantial evidence on which the prosecution case rests. The non- seizure of the torchlight under such circumstances raises suspicion as to the veracity of the prosecution case regarding the said identification. Not only that the learned Trial Judge also disbelieved such case of identification and held that the evidence of the P.Ws that even after committing murder of Manjari, the accused persons remained present in the field for 1½ hours only to give an opportunity to others to she them, was improbable.
18. In view of the evidence discussed above we are unable to accept the contention of Mr. Dutta Gupta that the appellant took away Manjari towards the field and with the help of torchlight he was found fleeing away. We are unable to accept the contention of Mr. Dutta Gupta that the appellant and Manjari were last seen together.
19. Exhibit A is Talaknama and D.W. 1 was examined to that effect. Exhibit A is the certified copy of the Talaknama which shows that Jamat Ali divorced Manjari on 30.4.1992. It was a registered Talaknama. The incident allegedly took place at night on 15.10.92. There is no specific evidence that even after executing the registered Talaknama, Jamat Ali again co- habituated with her. In view of the Talaknama there was no marital tie between them at that point of time. On this point P.W. 1 has stated in 11 cross-examination that after coming to her mother's house Manjari instituted a case against her husband and in-laws. This signifies that after Talaknama was executed and registered, they never lived together in her mother's house. The evidence of the P.Ws that on the date of incident at night Jamat Ali took away Manjari towards the field for attending nature's call, is not credible.
20. P.W. 4 has stated that on the night of incident 10/12 male and female members were residing in the house. But the brother of the deceased was not examined by the prosecution.
21. Mr. Dutta Gupta put much emphasis on the point that after occurrence the appellant was found absconding and he has referred to the decisions stated above. We are of the considered view that when the ocular evidence of fleeing away from the field is not credible and in view of all other infirmities and shortcomings in the prosecution case, this subsequent conduct, ipso facto, cannot form the basis of conviction. It is true that subsequent conduct is also a circumstance which is to be considered in arriving at a logical conclusion, but, we are to look into the totality of the evidence on record. When the alleged identification is found to be incredible and there were non-seizure of the torchlight and there were contradictions on vital point, this subsequent conduct will not come in the aid of the prosecution.
22. Having considered the submissions of the learned Advocates of both sides and after giving anxious consideration to the materials on record, we are of 12 the considered view that when the learned Trial Judge disbelieved the involvement of Ubai and Kouser who were also allegedly found fleeing away with Jamat Ali from the field, the learned Trial Judge ought to have disbelieved the prosecution case so far as the present appellant Jamat Ali is concenred. The evidence on record is not worthy of credence. The learned Judge was not justified in passing the impugned judgment of conviction and sentence. We set aside the impugned judgment. The appellant is acquitted of the charge levelled against him. The appeal is allowed.
23. Let a copy of this judgment along with the lower court records be sent down to the learned Court below immediately.
24. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.
(Kalidas Mukherjee, J.) I agree, (Md. Abdul Ghani, J. )