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2024 Supreme(Cal) 474
IN THE HIGH COURT AT CALCUTTA
CHITTA RANJAN DASH, PARTHA SARATHI SEN, JJ.
Dipjyoti Dhar @ Joy Dhar - Appellant
Versus
The State of West Bengal & Ors. – Respondents
C.R.A. No. 744 of 2009 with CRAN 1 of 2009 (Old No. CRAN 3017 of 2009)
Decided On : 05-03-2024
For the Appellant : Mr. Navanil De, Amicus Curiae, Adv., Ms. Monami Mukherjee, Adv.
For the State : Mr. Prasun Kumar Dutta, learned App, Mr. Santanu Deb Roy, Adv., Mr. Md. Kuttubuddin, Adv.
The main legal point established is that in a case based on circumstantial evidence, the prosecution must prove the guilt of the accused beyond reasonable doubt.
Headnote:
Last seen theory - Murder - Section 302 IPC, Section 27 of the Evidence Act, Section 8 of the Evidence Act - The court relied on the Last seen theory, extrajudicial confession of the accused, subsequent conduct of the accused under Section 8 of the Evidence Act, and recovery of the alleged offending weapon as per showing of the accused in course of investigation under Section 27 of the Evidence Act.
Fact of the Case:
The appellant was convicted under Section 302 IPC for the murder of his aunt. The prosecution's case was based on circumstantial evidence.
Finding of the Court:
The court found that the prosecution failed to prove the alleged extrajudicial confession and subsequent conduct of the appellant beyond reasonable doubt. It also found a break in the chain of evidence regarding the recovery of the alleged offending weapon.
Issues: The issues revolved around the application of the Last seen theory, extrajudicial confession, subsequent conduct, and recovery of the alleged offending weapon.
Ratio Decidendi: The court held that the prosecution failed to establish the guilt of the accused based on the circumstantial evidence presented.
Final Decision: The appellant was acquitted from the charge under Section 302 IPC.
JUDGMENT :
Partha Sarathi Sen, J.
1. In this appeal the judgement of conviction dated 03.09.2009 and order sentence dated 05.09.2009 as passed in S.T 55(7) of 2007 arising out of S.C 11(5) of 2007 arising out of Khardah P.S Case No. 335 dated 22.12.2006 by the Learned Additional Sessions Judge, Fast Track Court No.III, Barrackpore, District North-24-Parganas has been assailed. By the impugned judgement learned trial court found the present appellant guilty under section 302 IPC and thus sentenced him to suffer R.I for life and to pay fine of Rs.5,000/-i.d to suffer R.I for further two years. The convict felt aggrieved and thus preferred the instant appeal.
2. For effective adjudication of the instant appeal the facts leading to initiation of the aforesaid Sessions Trial is required to be dealt with in a nutshell. One Saroj Kumar Das of Ghoshpara, Tarapukur, Agarpara lodged a written compliant dated 22.02.2006 with the Officer-in-Charge, Khardah Police Station, District North-24-Parganas stating inter alia, that he and his daughter Papia Das, since deceased being an unmarried lady used to reside at a tenanted accommodation in the house of one Dipu Ghosh at Ghoshpara, Tarapukur and at that time his said daughter was carrying on business of mobile. It has further been disclosed in the said written complaint that one Dipjyoti Dhar @ Joy Dhar who happens to be his grandson visited his said tenanted accommodation on 21.12.2006 at about 7:30p.m and after taking his dinner he slept in the room of Papia Das, since deceased who happened to be his aunt (mother’s sister). It has also been disclosed that on 22.12.2006 he went out of his house for morning walk and when he came back at 8 a.m he found that the said Joy Dhar in a perplexed condition and at that time he was wearing a ‘gamcha’ on which he noticed blood stained mark. Thereafter the said Dipjyoti Dhat, who is the appellant before us came out of the room of Papia and when the informant entered into the room of Papia he noticed that Papia was lying in a pool of blood and she was no more. In his written complaint the informant disclosed that he suspected that his said grandson committed the murder of his daughter.
3. On the basis of the said written complaint Khardah P.S Case No.335 of 2006 dated 22.12.2006 under Section 302 IPC was started. Investigation was taken up and on completion of the same charge sheet was submitted under Section 302 IPC against the present appellant. After commitment and transfer the case record of the aforesaid sessions trial was placed in the file of the learned trial court who on 23.07.2007 framed charges under Section 302 IPC against the present appellant after considering the materials before him.
4. Trial court record reveals that in order to bring home the charge as framed against the accused, the prosecution has examined 13 witnesses in all and several documents and some materials have been exhibited on their behalf. Before the learned trial court though no evidence was adduced on behalf of the defence but from the trend of cross-examination and the answers as given by the accused in course of his examination under Section 313 CrPC it reveals to us that the defence case is based on clear denial and false implication. As discussed above learned trial court after considering the prosecution evidence both oral and documentary found the appellant guilty under Section 302 IPC and thus convicted him under Section 235 (2) CrPC.
5. On perusal of the impugned judgement it reveals that the learned trial court while coming to the conclusion of the said sessions trial placed his reliance upon the following principles of Evidence Act namely;
i. Last seen theory;
ii. Extrajudicial confession of the accused;
iii. Subsequent conduct of the accused under Section 8 of the Evidence Act;
iv. Recovery of alleged offending weapon as per showing of the accused in course of investigation under Section 27 of the Evidence Act.
6. In order to arrive at a logical conclusion of th
