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CALCUTTA HIGH COURT
Ashim Kumar Roy and Subal Baidya, JJ.
Nantu Roy @ Kalyan Roy —Appellant
versus
State of West Bengal —Respondents
CRA No. 522 of 2003 with CRA No. 525 of 2003
Decided on 4.12.2013
For the Appellant In CRA No. 525 of 2003:Mr. Jayanta Narayan Chatterjee, Mr. Shatarup Purkayastha, Mrs. Paramita Mukhopadhyay, Ms. Debapriya Mukherjee, Mr. Dwaipayan Biswas and Mr. Apalak Basu, Advocates.
For the State:Mr. Manjit Singh, PP, Mr. Syed Shamser Ali, Advocate.
For the Appellant in CRA No. 522 of 2003:Mr. Tarique Quasimuddin and Mrs. Zainab Tahur, Advocates.
For the Respondent/Mother of the deceased:Kunal Bose, Mr. Abhisekh Sinha, Advocates.
IMPORTANT POINT
Acceptance of confession presupposes that confession must be voluntary and free from any threat, inducement or promise and true.
Headnote:(i) Evidence Act, 1872—Section 32(1)—Dying declaration—A dying declaration is entitled to great weight—Dying declaration is a very important piece of evidence and there is no legal prohibition to accept the same and make it foundation of conclusion of guilt of accused when same is found free from all infirmities—But before such last statement can be acted upon, court must be satisfied about credibility of assertion of witness on the question of such dying declaration and then truthfulness of same and that declarant was in a fit condition to make such statement—Out of same it is most important that witnesses who depose about making of such oral dying declaration by deceased, must pass scrutiny of reliability—Once court is satisfied that declaration was true and voluntary, it can base its conviction on the same without any further corroboration—It cannot be laid down as an absolute rule of law that dying declaration cannot form sole basis of conviction unless it is corroborated—Rule requiring corroboration is merely a rule of prudence. (Para 8)
(ii) Criminal Law—Appreciation of evidence—Hostile witness—Merely because a witness has been declared hostile, his entire evidence does not get washed off and there is no legal bar to use his evidence in chief and cross-examination which supports the prosecution case—But at the same time law does not permit to act on that part of the evidence of a hostile witness in respect whereof he made contradictory statements at different stage of his deposition and claimed to have made such statement at behest of police. (Para 8)
(iii) Evidence Act, 1872—Section 32(1)—Dying declaration—Probative value—Any general expression indicating suspicion against a particular individual without attributing any direct role to him in commission of the offence, more particularly when some other contemporaneous materials having stronger probative value disclosed the person who expressed his suspicion subsequently had no occasion to bear any such suspicion, ought to be excluded from consideration. (Para 8)
(iv) Evidence Act, 1872—Section 24—Confession—Confession means an express acknowledged guilt of offence charged, certain and complete in itself, or it must admit substantially all facts which constitute offence—To distinguish a confession from an admission one test would be whether statement confessing guilt is alone sufficient to convict the person charged with commission of offence, if it is, it is a confession—If however, it falls short of a plenary acknowledgment of a guilt but statement is of some incriminating fact or facts which taking alone with other evidence tend to prove his guilt, it is an admission—An admission in terms offence or at any rate substantially all the facts which constitute offence, a statement, either oral or written, whether communicated or not, admitting guilt is a confession—An admission of an incriminating fact is not by itself a confession and all admissions are not confession—In a case an accused is charged with murder, has stated that he had assaulted by mistake—Acceptance of confession presupposes that confession must be voluntary and free from any threat, inducement or promise and true. (Para 14)
(v)Evidence Act, 1872—Sections 8 and 27—Disclosure statement—Even when factum of seizure is not admissible under Section 27 of Evidence Act, still it is relevant under section 8 as conduct of accused. (Para 17)
(vi) Criminal Law—Appreciation of evidence—Circumstantial evidence— Circumstances forming chain must be free from any conclusion that may be consistent with innocence of accused and must be of conclusive character and consistent only with hypothesis of guilt of accused and should not be capable of being explained by any other hypothesis. (Para 19)
JUDGMENT
Ashim Kumar Roy, J.—In a joint trial held before a Sessions Court the appellant Nantu Roy @ Kalyan Roy was found guilty on two counts, firstly, for committing offence punishable under Section 302/120B IPC and then for the offence punishable under Section 302/34 IPC and was sentenced to suffer imprisonment for life and to pay fine with default clause on both counts. Whereas the accused Aparajita Bose @ Munmun was found guilty under Section 302/120B of the Indian Penal Code and thereunder sentenced to suffer imprisonment for life and to pay fine with default clause. The convict Nantu Roy @ Kalyan Roy in C.R.A. No. 522 of 2003 challenged his conviction and sentence and after admission of appeal, a Division Bench of this Court on August 17, 2005 suspended his sentence and released him on bail pending hearing of the appeal. Similarly, the convict Aparajita Bose @ Munmun challenged her conviction and sentence in C.R.A. No. 525 of 2003. The said appeal was admitted, but on 11th of November, 2005 a Coordinate Bench turned down her prayer for suspension of sentence. Finally, on 10.4.2013 her sentence was suspended by this High Court and she was released on bail as there was no progress in the appeal and after her detention in custody for more than 12½ years and on the background the co-convict the principal accused was on bail.
2. In gist the prosecution case goes like this:
“On May 26, 2000 at around 9.30 p.m. some passers-by while crossing Khanaberia village within the Police Station Tiljala, on hearing human screaming rushed towards that direction and found a person lying on the road with bleeding injuries. When the injured appealed to them to save his life and told that he had his wife and two minor children and it was one Kalyan Roy @ Nantu Roy with accused Gautam assaulted him and caused those injuries at the instigation of his wife Aparajita Bose @ Munmun, who developed an extra-marital affairs with the accused Kalyan Roy. Thereafter, those passers-by called a police patrol van and removed the injured to the hospital in the said van. However, at the hospital the injured was declared brought dead.
3. During investigation police examined the said passers-by and the police personnels who removed him to the hospital in a police vehicle. Since the dead body was cremated before identification, the victim was identified by his mother from the photograph of the dead body, as her son Kunal and from his personal belongings seized from his person and the place of occurrence. In the meantime, there was wide publications about the incident, in print as well as in electronic media that the victim was allegedly killed by the appellant Kalyan Roy with the help of one Gautam at the instigation of his wife Aparajita Bose @ Munmun who developed a love affairs with the accused Kalyan and wanted to get rid of him. Before her arrest the accused Aparajita Bose @ Munmun allegedly confessed her guilt before her mother-in-law and others. Police also recovered a written document appears to be the purported last Will of the victim from his office drawer. After conclusion of investigation police submitted charge sheet against the appellants showing the co-accused Gautam as absconder.
4. In the trial the prosecution to prove its case completely relied on circumstantial evidence and to prove those circumstances examined as many as 41 witnesses. Whereas no witness was examined in his defence by the convict Nantu Roy @ Kalyan Roy, however, the convict Aparajita Bose @ Munmun examined herself as DW1 and her brother was examined as a Court witness.
5. The following are the circumstances relied upon by the prosecution to prove its case against the appellants.
(a) The evidence of the Autopsy Surgeon that Kunal suffered a homicidal death and due to the ante mortem injuries found in his person.
(b) Identification of the dead body as that of the victim Kunal and his belongings,
(c) The dying declaration of the victim Kunal made to the passers-by and the po
