Chandan Boyra @ Chandan Baira vs State Of West Bengal
2021 Latest Caselaw 5969 Cal

Item No.13




               IN THE HIGH COURT AT CALCUTTA
              CRIMINAL APPELLATE JURISDICTION
                         APPELLATE SIDE

Present:
The Hon'ble Justice Joymalya Bagchi
              And
The Hon'ble Justice Krishna Rao



                              C.R.A. 624 of 2015

                      Chandan Boyra @ Chandan Baira
                                   -Vs-
                           State of West Bengal



For the Appellant :           Mr. N. K. Ghosh, Adv.
                              Mr. J. I. Hossain, Adv.
                              Mr. Sujoy Sarkar, Adv.



For the State :               Ms. Zareen N. Khan, Adv.
                              Ms. Amita Gaur, Adv.



Heard on :                    01.12.2021


Judgment on:                  01.12.2021



Joymalya Bagchi, J. :-

       The appeal is directed against the judgment and order dated

14.08.2015

and 17.08.2015 passed by the learned Additional District and

Sessions Judge, Bolpur, Birbhum, in connection with Sessions Trial No.

2(June)/2015 corresponding to Sessions Case No. 23 of 2015 convicting the

appellant for commission of offence punishable under Section 302 of the

Indian Penal Code and sentencing him to suffer imprisonment for life and to

pay a fine of Rs.10,000/-.

Prosecution case was set into motion on the basis of a written

complaint lodged by Binayak Chandra Das (P.W. 1) with the police alleging

that the appellant who was a married man had developed an amorous

relation with his unmarried sister Rina Das @ Baby. He had struck a

friendship with Rina Das @ Baby on the promise of marriage and they used

to mix freely. On 23.10.2013 at about 5.30p.m. Rina Das @ Baby had left

with the appellant in a motorcycle. Subsequently, he received information

that his sister had been murdered. Dead body had been recovered by the

police and had been taken to Bolpur SD Hospital. On the basis of the

aforesaid written complaint, Bolpur Police Station Case No. 373 of 2013

dated 24.10.2013 was registered against the appellant. It may be pertinent

to note that in the night of 23.10.2013 the appellant had also been admitted

to Bolpur SD Hospital after having ingested poison. At the time of

admission, the appellant informed the attending doctor Dr. Bhavaranjan

Sikdar that he had killed Rina Das @ Baby with a knife. In the course of

investigation, investigating officer arrested the appellant and on his showing

seized the offending knife and submitted charge-sheet. Charge was framed

against the appellant under Section 302 of the Indian Penal Code. Appellant

pleaded not guilty and claimed to be tried. In the course of trial, prosecution

examined ten witnesses. In order to arrive a just decision in the case, trial

court invoked its power under Section 311 of the Code of Criminal Procedure

and examined the doctor Dr. Bhavaranjan Sikdar as C.W. 01 to prove the

extra-judicial confession of the appellant and ASI, Dipak Banerjee as C.W.

02 in order to exhibit the general diary regarding the recovery of the victim

from the place of occurrence. Defence of the appellant was of innocence and

false implication. It was his specific defence that upon consuming poison he

was unconscious in the hospital and did not make any confession to the

doctor. Upon analysis of the aforesaid evidence on record, learned trial

judge by the impugned judgment and order convicted and sentenced the

appellant, as aforesaid.

Mr. Hossain, learned Counsel appearing with Mr. Sarkar, argues that

there is no direct evidence that the appellant had murdered the deceased.

Last seen theory has not been proved. Seizure of the offending weapon is not

supported by the independent witnesses. The said weapon was also not

produced before the Court and the finger prints on the seizure knife were

compared with that of the appellant. It is also argued that the appellant was

unconscious and the so-called extra-judicial confession is a concocted one.

It is further argued that the appellant had been arrested in the hospital even

prior to the information lodged by P.W. 1. Hence, such information cannot

be treated as first information report in the present case. Thus, the

appellant is entitled to an order of acquittal.

Ms. Khan, learned Counsel appearing for the State argues that the

evidence of P.W. 1 shows that the appellant and the victim had left together

in the evening of 23.10.2013 in a motorcycle and soon thereafter her dead

body of the victim was recovered behind the administrative building at

Purvapally in Santiniketan. It is further argued that the confession made by

the appellant before the doctor (C.W. 01) clearly establishes that he had

murdered the victim and thereafter consumed poison. Thus, the appeal may

be dismissed.

P.W. 1 is the brother of the deceased and first informant in the present

case. He deposed that on 23.10.2013 at 5.30p.m. his sister Rina Das @

Baby had left the house with the appellant in his motorcycle. At 6.30p.m. he

received a phone call from Bikash Dutta, who stated that he was informed

by the police that his sister met with an accident. He asked Bikash to talk

with the appellant. Bikash, thereafter, told him that the appellant had

disclosed that he committed murder of Rina Das @ Baby as she was

insisting Bikash to marry her. Thereafter he went to Bolpur SD Hospital. At

the hospital he came to know that Rina Das @ Baby had been murdered. On

the next day, he lodged F.I.R. which was scribed by Shir Himadri Sekhar

Singh. He put his signature on the paper (Exhibit-1). He signed on the

inquest report. He also made statement before the learned Magistrate. He

was extensively cross-examined but his evidence remained unshaken with

regard to the fact that his sister had left the residence with the appellant on

a motorcycle on the fateful day at about 5.30p.m. Other witnesses viz. P.W.

5 and P.W. 7 who made statements before police that the victim leaving with

the appellant in a motorcycle in the evening of the fateful day, however,

turned hostile and rescinded from their earlier statements in court. Hence,

they appear to be unreliable witnesses.

Even if their evidence does not come to the aid of the prosecution, I am

of the opinion P.W. 1 is the most natural witness with regard to the

circumstances that the victim left her residence in a motorcycle with the

appellant in the evening of 23.10.2013. His evidence is reliable and inspires

confidence. Evidence has also come on record from the deposition of P.W.1

as well as the other witnesses viz., P.Ws.5, 6 and 7 that the victim was

known to the appellant and used to move around together. This fact

probabilise the version of PW 1 that she had left with the appellant on the

evening of 23.10.2013. Hence, I am of the opinion, aforesaid circumstance

has been proved by the prosecution beyond doubt.

Soon thereafter the dead body of the victim was recovered from a place

behind the administrative building at Purvapally in Santiniketan.

This fact is proved through the evidence of C.W.2, ASI, Dipak

Banerjee who produced the General Diary Entry No.649 which was recorded

at the police station on 23.10.2013 at 20.05 hours. In the G.D. it is noted

that information has been received from a passerby that an injured lady was

lying with blood behind the Administrative Building of Purvapally. The

General Diary was marked as Ext.II.

P. W. 8, Dr. Swati Mukherjee who has attached to Bolpur S.D.

Hospital conducted post mortem examination on the body of the deceased

and found multiple external and internal injuries on her body particularly

one cut injury below right angle of mandible measuring about 2 ½ inch X 1

inch X 4 inch (depth). He opined that the death was due to effect of blood

loss and haemorrhage along with injury to the vital structures of the neck

resulting from cut injury of the neck which was ante mortem and homicidal

in nature. He further opined that the injuries on the structure of neck was

sufficient to cause death. He proved the post mortem report.

From the aforesaid evidence, it is clear that the victim had left with

the appellant in the evening of 23.10.2013 and soon thereafter met an

untimely with a cut throat injury which was ante mortem and homicidal in

nature.

In addition to the aforesaid circumstances, evidence has come on

record that in the night of 23.10.2013, the appellant had been admitted at

Bolpur S. D. Hospital after ingesting pesticide.

C.W.1, Dr. Bhavaranjan Sikdar had treated him in the emergency

department while P.W.10, Dr. Debashis Sarkar treated him after admission.

C.W.1 deposed on 23.10.2013 at 8.35 P.M. the appellant had come to the

emergency department while he was discharging duty as Medical Officer in

the emergency department with history of insecticide poisoning as narrated

by him. The appellant confessed that he had killed Baby Das with a knife.

C.W. 1 proved the emergency ticket, Ext.I wherein the aforesaid confession

of the appellant is endorsed.

P.W.10, Dr. Debashis Sarkar treated the appellant upon admission

and proved the bed head ticket, Ext.8. He stated that the patient was

conscious and oriented when he examined him at 10.59 p.m. on

23.10.2013. On the next day, he was referred to a Surgeon. He was finally

discharged on 27.10.2013.

In cross-examination, he stated that during his treatment he never

found the patient in a state of hallucination, restlessness or loss of self-

control.

Evidence of the aforesaid Doctors viz., C.W.1, Dr. Bhavaranjan

Sikdar and P.W.10, Dr. Debashis Sarkar prove that the appellant had come

to the hospital in a conscious and oriented state and was not suffering from

any hallucination or loss of sense. In a fit and competent state of mind, he

had made statement before the emergency Doctor, C.W.1 that he killed the

victim with a knife. The statement was contemporaneously recorded by

C.W.1 in the emergency ticket marked ext.1 and, therefore, it may be treated

as confession of the appellant of his guilt. It is trite law that a truthful

confession voluntarily made by an accused in a fit state of mind can be the

sole basis of conviction.

In the present case, both the doctors deposed that the patient was

conscious and fit to make a statement. They are independent medical

witnesses and their opinion with regard to the fit state of mind of the

appellant, in my opinion, is unimpeachable. The witnesses also do not have

any enmity or hostility towards the appellant which may prompt them to

falsely implicate him in the crime. Moreover, no coercion or threat or

intimidation is evident from the facts of the case which may give an

impression that the confession is an in-voluntary one. The sole defence

taken by the appellant to improbabilise the confession is that he was

unconscious after ingestion of poison and came to the senses on the next

day. The evidence of medical witnesses wholly ruled out such possibility and

render the defence improbable.

Thus, I am inclined to hold the confession recorded by C.W.1 in

Ext.1 is a voluntary and truthful one. Appellant was fit to make such

confession which clearly establishes his guilt. Truthfulness of the confession

is further fortified by the corroboration it receives from the post mortem

doctor who stated that the victim died due to a cut throat injury. Hence,

confession recorded in the present case does not suffer from any infirmity

and may be safely relied upon.

The other issues which have been argued before this Court with

regard to the arrest of the appellant prior to registration of First Information

Report, failure to prove the recovery of the offending weapon also do not

affect the truthfulness of the prosecution case. In his deposition, the

Investigating Officer (P.W.9) explained away the anomaly with regard to

arrest and stated that the arrest of the appellant was made on 24.10.2013.

His earlier statement with regard to arrest on 23.10.2013 at 8.35 p.m.

appears to be a slip of tongue as the appellant had been admitted to the

hospital at that time and was arrested on the next day i.e. on 24.10.2013

after the registration of the First Information Report. P.W.9 further deposed

that the appellant was released from the hospital on 26.10.2013 and

thereafter produced before the Court and remanded to police custody.

Pursuant to interrogation in police custody, on 28.10.2013 the appellant led

the IO to Purvapally, Santiniketan and showed him the offending knife

which seized in presence of witnesses. The seized knife was sent for SFSL,

Calcutta. However, P.Ws. 2 and 3, witnesses of the seizure of the knife,

though admitting the signatures on the seizure list have not supported the

prosecution case. Neither the knife nor any FSL report has been produced in

Court.

In view of the overwhelming evidence on record, lack of support of

the independent witnesses to the seizure of the knife or the remissness of

the investigating officer to collect the FSL or take finger prints from the knife

would not affect the truthfulness of the prosecution case.

The case is substantially proved through the other evidence on

record on the basis of the following circumstances;

1) There was a close relationship between the appellant and the

victim. They used to move around together;

2) On the fateful evening at around 5.30 p.m., the victim left with

the appellant in a motor cycle;

3) At 8.05 p.m., information was received by police that the victim

was lying with injuries on the lane behind the administrative

building at Purvapally, Santiniketan;

4) P.W.8 conducted post mortem over the body of the victim and

held that she suffered from cut throat injury which is ante

mortem and homicidal in nature;

5) On 23.10.2013 at 8.35 p.m., the appellant was admitted at

Bolpur S. D. Hospital after having ingested poison. He confessed

before the doctor (C.W. 1) that he murdered the victim with a

knife;

6) The appellant was arrested on 24.10.2013 and upon his release

from the hospital on 26.10.2013, he was taken into police

custody;

The aforesaid circumstances, particularly, the confession made by

the appellant unerringly point to the guilt of the appellant. Thus, conviction

and sentence of the appellant is upheld.

Accordingly, the appeal is dismissed.

From the evidence on record, it appears immediately after

commission of the offence, the appellant out of remorse ingested poison and

confessed his guilt.

In view of the aforesaid fact, I opine that in the event the appellant

makes an application for pre-mature release under Section 433A of the Code

of Criminal Procedure upon completion of 14 years of actual imprisonment,

the appropriate authorities shall consider such application in the light of the

aforesaid circumstances and other attending factors including the conduct

of the appellant in the correctional home.

Let a copy of this judgment along with the lower court records be

forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be made

available to the appellant within a week from the date of putting in the

requisites.

I agree.

(Krishna Rao, J.)                                      (Joymalya Bagchi, J.)




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