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2009 Supreme(Cal) 932
High Court Of Calcutta
Amit Talukdar & Raghunath Ray, JJ.
Dilip Kumar Dey - Appellants
Vs
State Of West Bengal - Respondents
And
Sristidhar Roy
Vs.
State Of West Bengal
Cr. A. No. 141 and 214 of 2008
Decided on: Dec 22, 2009
Sekhar Basu, Prasun Kumar Dutta, Soubhik Mitra, Debabrata Roy, S.K. Mahato
Sekhar Kr. Basu, Prasun Kr. Dutta, Souvik Mitra, Subhasis Bandyopadhyay, Debabrata Roy for the appellant in C.R.A. No. 141 of 2008 and C.R.A. No. 214 of 2008;
S.K. Mahato for the State in C.R.A. No. 141 of 2008;
Asimesh Goswami, Id. PP, S. K. Mahato, Ratna Ghosh for the State in C.R.A. No. 214 of 2008.
Headnote:
The Court acquitted the accused appellants of the charges of murder and section 201/34 of the Indian Penal Code. The prosecution's case mainly relied on the evidence of two eye-witnesses, the recovery of a saree from the pond pursuant to the confessional statement made by the accused to the police, and the extra-judicial confession made by accused Dilip before P.W. 18.
Fact of the Case:
Chandra Dutta, a housewife, was found murdered near her house on the banks of a local pond known as Lakhpukur. The prosecution alleged that the accused appellants, Dilip Kumar Dey @ Dilip @ Dilu and Sristidhar Roy @ Bhombal @ Hambul, committed the murder by causing the death of Chandra Dutta and thereby committed an offence punishable under section 302 IPC and within the cognizance of this Court of Sessions. That you on or about the 16th day of August, 2006 at about 6 p.m. having reason to believe that the offence under section 302 IPC has been committed, did cause certain evidence of the said evidence to disappear the wearing apparels of the victim Chandra Dutta and thereby committed an offence punishable under section 201 IPC and within the cognizance of this Court of Sessions.
Finding of the Court:
The Court found that the evidence of the eye-witnesses was unreliable as they had not disclosed the incident to anyone for two days after the murder. The Court also found that the extra-judicial confession made by accused Dilip to P.W. 18 was not credible as there was an enmity between P.W. 18 and accused Dilip and the accused had no reason to select P.W. 18 to make such a confession. The Court further found that the recovery of the saree from the pond pursuant to the confessional statement of the accused was not proved beyond reasonable doubt as there were serious contradictions in the evidence of the witnesses to the seizure.
Issues: 1. Whether the evidence of the eye-witnesses was reliable. 2. Whether the extra-judicial confession made by accused Dilip to P.W. 18 was credible. 3. Whether the recovery of the saree from the pond pursuant to the confessional statement of the accused was proved beyond reasonable doubt.
Ratio Decidendi: 1. The Court held that the evidence of the eye-witnesses was unreliable as they had not disclosed the incident to anyone for two days after the murder. The Court relied on the judgments of the Hon'ble Apex Court in the cases of Brahmananda Nanda and Alii Mollah, which held that non-disclosure of an incident by an eye-witness for a considerable period of time is a serious infirmity that destroys the credibility of the evidence. 2. The Court held that the extra-judicial confession made by accused Dilip to P.W. 18 was not credible as there was an enmity between P.W. 18 and accused Dilip and the accused had no reason to select P.W. 18 to make such a confession. The Court relied on the judgments of the Hon'ble Apex Court in the cases of Kishore Chand and Heramba Brahma, which held that extra-judicial confessions must be scrutinized carefully and that the Court must look into the surrounding circumstances to determine whether the confession is voluntary and reliable. 3. The Court held that the recovery of the saree from the pond pursuant to the confessional statement of the accused was not proved beyond reasonable doubt as there were serious contradictions in the evidence of the witnesses to the seizure. The Court found that the evidence of the witnesses was unreliable and that the prosecution had failed to prove its case beyond reasonable doubt.
Final Decision: The appeals were allowed, the judgment and order of conviction and sentence were set aside, and the accused appellants were acquitted of the charges framed against them.
Amit Talukdar, J.
1. ABLUTIONS over, she was preparing to repair for the night when death claimed her in some horrendous circumstances.
2. SINCE her Father-in Law, P.W.2, Bishnupada Dutta grew restive on account of her non-arrival from the pond of Lakhpukur, where she had gone to wash herself, he set on a search along with some co-villagers. The same yielded to the discovery of her mortal remains in a dishevelled condition under a wood apple tree in the vicinity of the said pond with injuries. It is the cause of such death, circumstances leading to it and the role played by these two appellants in the commission of the same, is required to be tracked by us in this appeal so as to appreciate the impact of the finding of the learned Additional Sessions Judge, Second Court, Burdwan in Sessions Trial No.7 of 2007 arrived at on 29.01.2008 whereby the appellants (both the appeals being heard analogously, are being disposed of by this common judgment and the appellant Dilip Kumar Dey @ Dilip @ Dilu in C.R.A. No. 141 of 2008 is referred to as 'A-1' whereas appellant in C.R.A. No. 214 of 2008 Shristidhar Roy @ Bhombal @ Hambul is referred to as 'A- 2') were sentenced to suffer imprisonment for life and to pay rupees six thousand each; in default to suffer rigorous imprisonment for one year more in respect of their conviction for the charge of section 302/34 of the Indian Penal Code.
3. EVEN though both the appellants were found guilty in respect of the charge of section 201/34 of the Indian Penal Code; however, no separate sentence was awarded as already they were directed to cover a life term.
4. BACKGROUND facts leading to the initiation of the present case can be traced back to a monsoon evening of 16.08.2006 when Chandra Dutta @ Khuku the Daughter of P.W.I, Kartick Ch. Roy, who was given in marriage to P.W.4, Maloy Dutta had been to the nearby pond for a wash. But since she did not return till late evening, this persuaded P.W.2, Bishnupada Dutta to conduct a search. The dead-body of deceased Chandra was found with her wearing apparels ajar under a wood apple tree standing near the pond. He took out a written complaint (Ext.3) before P.W. 26, Jugal Chandra Biswas, the Investigating Officer, who directed P.W.20, Md. Ayub Hossain to submit the same to the police station which resulted in registration of the formal FIR (Ext.8) at the instance of the P.W.24, Ajoy Dey, Sub-Inspector of police, who at the relevant date and time was posted as sub inspector of police, Khandaghosh Police Station.
5. ON the same night an inquest (Ext. 1) over the dead body of Deceased Chandra was conducted by P.W.26, Jugal Chandra Biswas, the Investigating Officer of this case in the presence of P.W.I, Kartick Ch. Roy, father of the Deceased her Sister-in-Law, P.W.8, Sabitri Juin, her Father-in-Law, P.W.2, Bishnupada Dutta, P.W. 10, Md. Hanif, P.W. 19, Constable Nepal Chandra Kundu and A-1.
6. THEREAFTER the dead-body was sent through P.W. 19, Constable Nepal Chandra Kundu against a dead-body challan (Ext.5) for the purpose of postmortem Examination which was held by P.W.23, Professor Dr. B.N. Kahali, Professor and Head of the Department of Forensic and State Medicine, Burdwan Medical College and Hospital on 17.08.06, who is now posted as Professor in the Department of Forensic and State Medicine, N.R.S. Medical College and Hospital. In the meanwhile, on 19.08.06 the appellants were produced under arrest before the learned Chief Judicial Magistrate, Burdwan and they were sent on police remand till 26.08.06 in connection with G.R. 1140 of 2006.
7. IN terms of their statement (Ext. 10 and 10/1) recorded by P.W.26, Jugal Chandra Biswas, the Investigating Officer of this case on being pointed out by the appellants the Saree (Mat. Ext.-I) was recovered from the mud of the pond on 21.08.06 in the presence of P.W.5, Provakar Dutta, P.W.7, Suchandra Dutta, Sister-in-Law and the husband of the deceased, P.W.4, Maloy Dutta by P.W. 15, Ajit Santra, P.W.13, Guru Pr
