Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 88

IN THE HIGH COURT AT CALCUTTA
Joymalya Bagchi, Ajay Kumar Gupta, JJ.
Bhim Hazra - Appellant
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 345 of 2019, 343 of 2021
Decided On : 16-01-2023

Advocates appeared:
Jyoti Prakash Chatterjee, Advocate, Kusal Kumar Mukherjee, Advocate, Parthapratim Das, Advocate, Zareen N. Khan, Advocate, Manasi Roy, Advocate

In a case based on circumstantial evidence, the circumstances must be fully established, consistent only with the hypothesis of the guilt of the accused, of a conclusive nature, excluding every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused.

Headnote:
CRIMINAL APPEAL - MURDER - SECTION 302/34 IPC - Based on circumstantial evidence - Last seen theory - Extra-judicial confessions - Held: Evidence insufficient to prove beyond reasonable doubt - Appellants entitled to benefit of doubt.
Fact of the Case:

Appellants were convicted for the murder of Toton Chandra based on circumstantial evidence, including last seen theory and extra-judicial confessions. The prosecution alleged that the appellants, along with others, called Toton from his residence to attend a fair, and his dead body was later found near a pump house. The appellants confessed their guilt before the villagers and police.
Finding of the Court:

The court found that the evidence on record did not establish the case against the appellants beyond a reasonable doubt. The court held that the last seen theory was not sufficient to establish the appellants' presence at the time of the murder, and the extra-judicial confessions were inadmissible as they were made in the presence of a police officer.
Issues: 1. Whether the prosecution proved the case against the appellants beyond a reasonable doubt based on circumstantial evidence. 2. Whether the last seen theory established the appellants' presence at the time of the murder. 3. Whether the extra-judicial confessions were admissible.
Ratio Decidendi: 1. The court held that the circumstances relied upon by the prosecution, including the last seen theory and extra-judicial confessions, had not been proved beyond doubt. 2. The court found that the evidence on record did not establish a close nexus between the last seen circumstance and the homicidal death of the victim, and mere last seen circumstance without anything more cannot be the foundation of guilt. 3. The court held that the extra-judicial confessions were inadmissible as they were made in the presence of a police officer, which rendered them inadmissible under Section 25 of the Evidence Act.
Final Decision: The court allowed the appellants' appeal and set aside their conviction and sentence. The appellants were ordered to be released from custody forthwith, if not wanted in any other case.

JUDGMENT

Joymalya Bagchi, J. - Appeals being CRA 343 of 2021 and CRA 345 of 2019 have been preferred against judgment and order dated 16.03.2019 & 18.03.2019 passed by learned Additional Sessions Judge, Kalna, Purba Bardhaman in Sessions Case No. 135 of 2006 (S.T. No. 07 of 2012) convicting the appellants viz. Raju Tudu and Bhim Hazra for commission of offence punishable under Sections 302/34 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs.5,000/- each, in default, to suffer simple imprisonment for six months more.

2. CRA 345 of 2019 was preferred by both the appellants viz. Raju Tudu and Bhim Hazra. Subsequently, appellant viz. Bhim Hazra preferred another appeal being CRA 343 of 2021. Hence, appeal being CRA 343 of 2021 preferred by appellant viz. Bhim Hazra is dismissed as not maintainable.

3. Prosecution case as levelled against the appellants is as follows :-Toton Chandra, the deceased, used to work as a mason under one Ganesh Khatua at Liluah. Appellants along with Palash Santra and Sanjay Das also worked under the same employer. A quarrel ensued amongst them with regard to financial matters. Toton left his employment and returned to the village. Thereafter, Palash threatened Toton with dire consequences. He even went to his house and tried to throttle Toton. On 26.05.2006 around 4:30 P.M. appellants along with Palash Santra and Sanjay Das called Toton to accompany them to a fair held in connection with 'Siddheswari puja' at Simlon village. Toton left with Palash, Sanjay and the appellants. Around 8:30-9:00 P.M., villagers saw them dancing near Siddheswari temple. On the next morning, dead body of Toton was recovered beside the PHE pump station at Simlon village. Police came to the spot. Appellants confessed their guilt before the villagers and police.

Proceedings leading to the appeal:-

4. On the written complaint of Pintu Chandra, brother of the deceased (PW1), Kalna Police Station Case No.83 of 2006 dated 27.05.2006 under Sections 120B/302/34 of the Indian Penal Code was registered. Pursuant to the disclosure statement of Palash, a belt used as ligature to strangulate the deceased was recovered from a pond. Charge-sheet was filed. In the meantime, Sanjay absconded. Charges were framed against the appellants and Palash under Sections 302/34/120B of the Indian Penal Code. Accused persons pleaded not guilty and claimed to be tried.

5. In course of trial prosecution examined 14 witnesses and exhibited a number of documents. During trial, Palash absconded.

6. In conclusion of trial, learned trial Judge by the impugned judgment and order dated 16.03.2019 & 18.03.2019 convicted and sentenced the appellants, as aforesaid.

Evidence on record:-

7. PW1 (Pintu Chandra) is the de-facto complainant and brother of the deceased. He deposed in the evening of the fateful day, Palash and Raju had taken his brother from the house to see 'Siddheswari puja' at Simlon more. They consumed liquor and were dancing in the puja pandal. On the next morning, his brother's dead body was recovered near the pump house of PHE at Simlon village. He came to the spot. Police also arrived at the spot. On being interrogated by police, Bhim Hazra stated that they had murdered his brother. He was a signatory to the inquest. He proved the FIR.

8. PWs.8 & 9 are the parents of the deceased.

9. PW8 (Laxmi Chandra) is the mother of the deceased. She deposed appellants and Toton used to work under the same employer. They had financial problems. Toton returned to the village. Thereafter, appellants threatened to kill him. On occasion of 'Siddheswari puja', they called Toton from his residence. Next day his dead body was recovered beside PHE pump station at Simlon. PW8 came to the spot. Appellants disclosed they had killed Toton. In cross-examination, she admitted police was present at the spot when she arrived.

10. PW9 (Uttam Chandra) is the father of the deceased. He deposed Palash had threatened the deceased and tried to t