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2020 Supreme(Cal) 38
IN THE HIGH COURT OF CALCUTTA
Sahidullah Munshi, Subhasis Dasgupta, JJ.
Nasir Mallick And Another - Appellants
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 319 of 2015, 294 of 2015
Decided On : 17-06-2020
Arnab Chatterjee, Advocate, Sampa Bhadra, Advocate, Vikash Saha, Advocate, Mrishnendu Bhadra, Advocate, Y.Z. Dastoor, Advocate, Prabir Majumder, Advocate, Madhu Sudan Sur, Advocate, Manoranjan Mahato, Advocate, Manoranjan Mahata, Advocate
Headnote:
CRIMINAL APPEAL - CONVICTION AND SENTENCE - SECTION 302/34 OF INDIAN PENAL CODE - MURDER - SECTION 376(2)(G) OF INDIAN PENAL CODE - RAPE - CHARGE FRAMED - EVIDENCE - WITNESSES - POST-MORTEM REPORT - DELAY IN LODGING FIR - MEDICAL EVIDENCE - DEFECTIVE CHARGE - SECTION 164 OF THE CODE OF CRIMINAL PROCEDURE - DELAY IN RECORDING STATEMENTS - IMPROBABILITY OF PROSECUTION CASE - SECTION 11 OF THE INDIAN EVIDENCE ACT - OMISSION OF FACTS IN FIR - SECTION 342 OF THE CODE OF CRIMINAL PROCEDURE - TIME OF DEATH - SECTION 313 OF THE CODE OF CRIMINAL PROCEDURE - STATEMENT OF ACCUSED - CIRCUMSTANTIAL EVIDENCE - CONTRADICTION IN EVIDENCE - INQUEST REPORT - DISCHARGE OF APPELLANTS.
Fact of the Case:
The appellants were convicted and sentenced to life imprisonment for the murder of a minor girl and for raping her. The prosecution case was that the victim was called out of her house by one of the accused, Rafikul, on the evening of 7th June 2009 and did not return. Her body was found the next day in a jute field. The appellants were charged with murder and rape under Sections 302/34 and 376(2)(g) of the Indian Penal Code, respectively.
Finding of the Court:
The court found that the prosecution case was full of contradictions and improbabilities. The post-mortem report indicated that the time of death was between 24 and 36 hours before the examination, which contradicted the prosecution's claim that the victim was killed on the night of 7th June. The medical evidence also did not support the allegation of rape. The court also found that there was a delay in lodging the FIR and that the charge framed against the appellants was defective. The court further held that the delay in recording the statements of two key witnesses under Section 164 of the Code of Criminal Procedure was unexplained and suspicious. The court concluded that the prosecution had failed to prove its case beyond reasonable doubt and acquitted the appellants.
Issues: 1. Whether the prosecution had proved its case beyond reasonable doubt. 2. Whether the charge framed against the appellants was defective. 3. Whether there was a delay in lodging the FIR and recording the statements of witnesses.
Ratio Decidendi: 1. The court held that the prosecution had failed to prove its case beyond reasonable doubt. The post-mortem report contradicted the prosecution's claim about the time of death, and the medical evidence did not support the allegation of rape. The court also found that there were contradictions and improbabilities in the prosecution case. 2. The court held that the charge framed against the appellants was defective. The charge did not specify that the appellants were being charged with murder and rape along with others, which is required under Section 34 of the Indian Penal Code. 3. The court held that there was a delay in lodging the FIR and recording the statements of witnesses. The FIR was lodged more than 44 hours after the discovery of the body, and the statements of two key witnesses were recorded under Section 164 of the Code of Criminal Procedure after a delay of 80 days.
Final Decision: The court allowed the appeals, set aside the convictions and sentences, and acquitted the appellants.
JUDGMENT
Sahidullah Munshi, J. - This appeal is against the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnagar, in Sessions Trial No. VI(VII) of 2014 arising out of Sessions Case no. 23(2) 2010 convicting the appellant Nasir Mallick and Dadu Sk @ Mani Rahaman Sk under Section 302/34 of Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for life and to pay a fine of Rs. 50,000/- each, in default to suffer further rigorous imprisonment for two years each.
2. The present appeal CRA 319 of 2015 has been heard analogously with CRA 294 of 2015. Both these appeals arose from a common judgment of conviction dated 27.03.2015 and order of sentence dated 30.03.2015. Since the judgment of conviction passed by the trial Court arose from the self-same complaint, it is intended to dispose of both these appeals by common judgment.
3. So far CRA 294 of 2015 is concerned the same has been filed by Mabia Bibi and Atabi Mallick challenging self-same judgment and order of conviction dated 27.03.2015 and order of sentence dated 30.03.2015 passed by the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnagar in Sessions Trial No. Vi(VII) 2004 arising out of Sessions Case no 23(2)2010 convicting the appellants under Section 302/34 of Indian Penal Code and sentencing them to rigorous imprisonment for each and to pay a fine of Rs.50,000/- in default to suffer further rigorous imprisonment for two years and also convicting the said accused Mabia Bibi and Atabi Mallick under Section 376(2)(g) of Indian Penal Code.
4. It may be mentioned that the appellant no.1 (Nasir Mallick) in C.R.A. No. 319 of 2015 was convicted under Section 302/34 of the Indian Penal Code and the appellant no.2 (Dadu Sk) was additionally convicted under Section 376(2)(g) of the Indian Penal Code.
5. Present prosecution case as framed by the State is that on 7.06.2009 after 19.30 hours (7.30 pm) at a place in village Tentulberia within the jurisdiction of Nakashipara police station, district Nadia, accused persons Dadu Sk, Asadul Sk, and Rafikul Mallick committed rape on the victim and also these accused persons in furtherance of their common intention murdered the minor victim the self-same day. Investigation carried on, charge-sheet submitted by police against these accused persons under Section 302/34 of Indian Penal Code.
6. The accused persons Rafikul Mallick and Asadul Sk being juvenile in conflict with law, faced trial before the Juvenile Justice Board. Trial By the learned Sessions Court proceeded against four accused persons namely, Dadu Sk and Nasir Mallick appellants in CRA 319 of 2015 and Mabia Bibi and Atabi Mallick appellants in CRA 294 of 2015. Charge was framed under Section 302/34 IPC against all four accused persons and additionally charge was framed under Section 376(2)(g) of the Indian Penal Code, against the accused Dadu Sk, charge was read over to the accused persons to which they pleaded not guilty being innocent and have been falsely implicated.
7. In order to prove its case prosecution has examined as many as 16 witnesses on dock.
8. Before scanning the evidence of the witnesses examined by the prosecution it is, perhaps profitable, to take note of certain dates which will come again and again with its sequence. On 07.06.2009 at 7.30 pm one Rafikul Mallick, a near relation of the victim's mother called the victim girl from her house. Neither Rafikul disclosed the reason for his calling nor the mother of the victim did make any quarry to said Rafikul the reason. On the next day that is, 08.06.2009 at or about 10.00 am dead body of the victim girl was found at the jute field of one Sadar Sk of the same village. On being informed police started case no.39 of 2009 dated 08.06.2009. At 11.35 am on 08.06.2009 itself inquest was conducted and investigation commenced on the self same day. Investigation report under Section 164 Criminal Procedure Code discloses th
