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CALCUTTA HIGH COURT
Nishita Mhatre and Samapti Chatterjee, JJ.
Bablu Mallick —Petitioner
versus
State of West Bengal —Respondent
CRA No. 264 of 2004
Decided on 19.11.2014
Counsel for the Parties:
For the Appellants:Mrs. Anasuya Sinha, Advocate.
For the State:Mr. Pawan Kumar Gupta, Advocate.
IMPORTANT POINTS
(1) Motive to kill is not sufficient to prove the guilt of the accused.
(2) An extra-judicial confession is a weak piece of evidence
(3) The fact that an accused was absconding would be material if in the case of circumstantial evidence the chain of circumstances is completed and points to the guilt of the accused.
Headnote:Indian Penal Code, 1860 —Section 302—Murder by throat slitting of victim in midnight when he was sleeping in hut in his paddy field with PW2—Conviction of appellant on circumstantial evidence—PW9 and PW4 though spoke about property dispute between appellant and deceased which could have been a motive for appellant to kill victim, brother and wife of deceased victim did not say anything regarding any such dispute—It was difficult to accept prosecution version that appellant had motive to kill deceased—Sketch map if accepted it was improbable that PW2 would not have heard any sound when victim throat was slit—Extra judicial confession by appellant before PW5 after six months of incident was unbelievable when there was no evidence if appellant knew PW5 intimately or there was reason for him to divulge that information to him—Recovery of weapon of offence pursuant to information from appellant was not acceptable when information had not been recorded in writing and recovery from a pond after six months of incident was a place accessible to others also—Appellant was absconding as alleged was not duly proved and even otherwise circumstances of abscondance would have helped if other circumstances completed a chain—Conviction was liable to be set aside.
Result: Appeal allowed.
JUDGMENT
Nishita Mhatre, J.— The appeal is directed against the decision of the Judge, Special Court cum-Additional Sessions Judge, Burdwan in Sessions Case No. 27 of 2003 dated 21st February, 2004. The appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000 (Rupees Two Thousand only); in default of payment of fine the appellant has been directed to suffer rigorous imprisonment for six months.
2. A complaint was lodged on 13th March, 2001 by Uttam Mallick stating that his brother Khokon Mallick had been killed while he was sleeping in the paddy field on 12th March, 2001. The complainant mentions that Khokon and Binode Roy used to water the paddy field and at night they slept in a hut on the field. At 2.00 a.m. on 13th March, 2001, Binode found that Khokon was not present in the hut. He then went near the shallow pump near the hut and saw Khokon lying there with his throat slit. Binode Roy then called out to Motilal Hembram who resided on the other bank of the pond. Motilal Hembram and Binode then informed the members of the family of Khokon about his death. The complaint was sent on 20th March, 2001 to the SDJM, seven days after the FIR was registered.
3. The appellant was arrested about six months after the death of Khokan although he was not named in the complaint as the assailant. The inquest was conducted on the same day at about 9.00 a.m. The description of the dead body and the injuries sustained have been mentioned in the inquest report. From a primary investigation it was mentioned that the body was found lying near the shallow machine which belonged to Chittaranjan Ghosh. The preliminary investigation did not indicate that the appellant was the assailant.
4. The prosecution has attempted to prove its case by examining 12 witnesses. PW2 Binode Roy has stated that he found Khokon absent in the hut at about 2.30 a.m. on 13th March, when he awoke. He searched for him and found him lying near the shallow machine. He claimed that he called out to the appellant who resided a short distance away from the shallow pump because the appellant Bablu was the brother-in-law of the deceased. Bablu was not present and his house was locked. The witness states that he informed Motilal Hembram about the death of Khokon. PW3, Motilal Kenbram has corroborated the version of PW2. Both PWs2 and 3 then informed PW1, Khokon’s brother of the incident.
5. PW4 is a villager residing in the same village. He was informed by Motilal Hembram, PW3, about the death of Khokon. He claims to have reached the place of occurrence and then searched for Bablu, the appellant herein. He speaks of Bablu’s house being locked. According to this witness, there was a dispute over landed property between Bablu and Khokon. He was a witness to the recovery of Bagi, allegedly at the instance of the appellant which was used to slit the victim’s throat. It was found in the Asapasa Pukur (pond). According to this witness, the recovery was made at about 9 p.m. when he saw the appellant being taken towards the village after his arrest.
6. PW 8 is also a witness to the seizure of the Bagi.
7. PW 5, a vegetable vendor claims that he used to sell vegetables at Saspur market and he met Bablu there. According to him, Bablu had a house there. The witness claimed that Bablu revealed to him that he had murdered his brother-in-law and that the police were searching for him. This witness conceded that he had not informed the police about the extra-judicial confession allegedly made by Bablu to him and that he had mentioned this fact for the first time in Court.
8. PW6 has been declared hostile although he had stated initially that he found the dead body of Khokon lying near the pump machine.
9. PW7 is the wife of the deceased and the sister of the appellant. She has not spoken of any enmity between her husband and her brother. However, she has stated that Bab
