Calcutta High Court (Appellete Side)
Dibakar Mondal vs Unknown on 16 December, 2022
16.12.2022 CRA 636 of 2007
S/L. 26
Court No.12 In the matter of: Dibakar Mondal
Suvayan/
Sourav
....Appellant.
Mr. Navanil De
Mr. Rajeshwar Chakraborty
Mr. Srinjan Ghosh
Mr. Subhrajit Dey
Ms. Monami Mukherjee
...for the appellant.
Mr. Saswata Gopal Mukherjee, Ld. PP
Mr. Narayan Prasad Agarwala
Mr. Ashok Das
Mr. Protik Bose
...for the State.
1.
Heard Mr. Navanil De, learned amicus curiae appearing for the
appellant and Mr. Saswata Gopal Mukherjee, learned Public
Prosecutor appearing for the State.
2. This appeal arises against the judgment of conviction and
order of sentence passed by learned Additional Sessions
Judge, Basirhat, North 24 Parganas in Sessions Trial No. 3 (1)
of 2006 convicting the appellant under Sections 302/201 of
the IPC and sentencing the appellant thereunder as recorded
in the order of sentence.
3. This is a case of uxoricide. The deceased is the first wife of the
present appellant. During subsistence of the first marriage,
the appellant married for the second time. It is alleged that as
the deceased became unable to bear any child even after eight
years of their marriage, the appellant married for the second
time and, thereafter, the deceased came to live in the house of
her father in the same village. It is alleged that the appellant
and her parents used to torture the deceased physically and
mentally before the occurrence. Before the date of occurrence,
the deceased had gone to nearby hospital for checkup of her
teeth. When she did not return, a missing report was filed by
father of the deceased (P.W. 1). In course of the investigation
in that case, it came to the knowledge of the police that the
deceased was buried in the embankment of the pond
belonging to the family of the appellant. On coming to know of
such fact, the charge under Sections 302/201/34 IPC was
added and investigation was taken up by the I.O. (P.W. 19) on
the basis of written report lodged by the P.W. 1, father of the
deceased.
4. In course of investigation, the I.O. (P.W. 19) examined the
witnesses, made incriminating seizures, held inquest over the
dead body after it was exhumed form the place where it was
buried, challaned the dead body for postmortem, seized the
wearing apparels, etc. of the deceased and made other
incriminating seizures and after completion of investigation
filed charge-sheet under Sections 302/201/34 of the IPC
against the appellant and his father.
5. The prosecution has examined as many as 20 witnesses in
order to bring to home the charge against the appellant.
The defence plea is one of complete denial and false
implication.
6. It is fairly submitted at the Bar that the case is based entirely
on substantial evidence and there is no eyewitness to the
occurrence.
7. Perusal of the impugned judgment shows that learned Court
below has returned the finding of guilt under Sections
302/201 IPC against the appellant on the basis of following
circumstances while acquitting the father of the appellant.
i) The appellant was last seen together in the
company of the deceased prior to the occurrence
(proved by P.W.s 6 and 7).
ii) The dead body was recovered at the instance of the
appellant from the land belonging to his family
and inquest was held over the dead body after it
was exhumed (proved by P.W.s 10, 11, 12, 14,
etc.).
8. Mr. De, learned amicus curiae strenuously submits that both
the aforesaid circumstances have not been proved to the hilt
inasmuch as P.W. 6 is inimically disposed of towards the
appellant for pending litigation between the appellant and him
and P.W. 7 is testified to have seen the appellant in the
company of the deceased from the other side of the river
amongst 70 to 80 persons ferrying in the boat. So far as the
second circumstance is concerned, it is submitted by Mr. De,
learned amicus curiae that there are both private and official
witnesses to prove this circumstance and there are
discrepancies in the evidence of the witnesses so far as this
circumstance is concerned. According to Mr. De, some of the
private witnesses have testified that the dead body was
exhumed by the police, seized by them and inquest was held
over the dead body. Some of them have stated that it was the
appellant who showed the place of burial. One of the witness
has testified that the appellant showed to a place, the earth
was dug there, nothing was found and on digging of another
place the dead body was found. In view of such discrepancies
which strikes at the very root of the prosecution case so far as
the recovery of dead body at the instance of the appellant is
concerned, this circumstance cannot also be held to have been
proved.
9. Mr. Agarwala, learned Counsel for the State on the other hand
submits that learned Trial Court on a thorough scrutiny of the
evidence on record has believed the evidence of P.W.s 6 and 7
so far as the circumstance of "last seen together" is concerned
and having believed the evidence on the point of recovery of
the dead body at the instance of the appellant, the conviction
awarded by the Trial Court should be affirmed and the appeal
be dismissed.
10. We in our wisdom, feel it appropriate to discuss the aforesaid
two circumstances only eschewing the unnecessary evidence
adduced by the prosecution case. It is an admitted fact that
except the aforesaid two circumstances, there is no other
circumstance to implicate the appellant. On perusal of the
impugned judgment, we also found that learned Trial Court
has heavily relied on the aforesaid two circumstances.
11. P.W. 6 is the witness who had seen the appellant together in
the company of the deceased on the 3rd day of Sravan of 2006
at about 11.30 a.m. (though wrongly recorded as p.m.).
Appellant is the nephew of P.W. 6, appellant's father being his
cousin. In the cross-examination, this witness has specifically
testified that he has brought two complaint cases against the
appellant, one Giren Mondal and others. Those two cases are
testified to be still pending. This witness further testified that
he also initiated proceeding under Section 144 Cr.P.C. against
the aforesaid persons including the appellant and that
proceeding was decided against him (P.W.6). It is common
knowledge that litigation is a great ego issue for rustic people
irrespective of the extent of the land it involves or meagerness
of property it involves. This witness has contradicted himself
in the cross-examination so far as the date on which he saw
the appellant in the company of the deceased is concerned. In
his evidence, P.W. 6 has further testified that he had seen the
appellant in the Police Station at the time when he was
examined at Hingalganj P.S. and after about 18 days, he came
to learn that dead body of the deceased was recovered from the
courtyard of the accused Giren Mondal (father of the
appellant, since acquitted). Pendency of the litigation between
the appellant and P.W. 6 is enough evidence to show that he is
inimically disposed towards the appellant and his family. So
far as P.W. 7 is concerned, he has fairly submitted that he saw
the appellant in the company of the deceased from the other
side of the river i.e., from the side of Parhasnabad when they
were ferrying at the boat from the side of Kedarchak. He has
further testified that 70 to 80 persons were present in the
boat. Identification is such a situation from a distance
amongst 70 to 80 persons is difficult even persons are known.
12. Even if, we accept the evidence of P.W.s. 6 and 7 to have been
proved, then also their evidence has no credence inasmuch as
there is no proximity between the time when appellant was
seen last in the company of the deceased and the death of the
deceased, in as much as P.W. 6 himself has testified that 18
days after he saw the appellant in the Police Station, he came
to learn about recovery of dead body of the deceased from the
courtyard of the appellant.
13. So far as the second circumstance is concerned, having
perused the evidence of the witnesses described (Supra), we
find that there are discrepancies in the evidence as submitted
by Mr. De, learned amicus curiae. Some of the witnesses have
testified that they saw the police exhumed the dead body,
seizure of the dead body was made in their presence and
inquest was held. Some of the witnesses have testified that
the appellant showed the place where the dead body was
buried. One of the witness has testified that the appellant
showed to some place which was dug but noting was found
and on digging another spot the dead body was exhumed. If
all the aforesaid discrepancies are taken into consideration,
those discrepancies strike at the root of the prosecution case
so far as recovery of the dead body at the instance of the
appellant is concerned and it cannot be held that the
requirement of Section 27 of the Evidence Act has been
satisfied. At best, the entire evidence, even if, accepted may
point out to conduct of the appellant relevant under Section 8
of the Evidence Act and a person cannot be convicted on the
basis of conduct only.
14. The non-examination of the medical officer who held post
mortem also stairs at the face of the prosecution regarding
cause of death. Even if, we accept both the circumstances to
have been proved i.e., i) the appellant was seen last in the
company of the deceased some days prior to the occurrence
not alone but amongst other people; and ii) the appellant
pointed out to the place from where dead body was exhumed
indicative of his conduct under Section 8 of the Evidence Act,
there cannot be completeness of chain to point out to the guilt
of the appellant and none else.
15. In view of our discussion (Supra) and the materials on record,
we set aside the impugned judgment of conviction and order of
sentence passed by the learned Additional Sessions Judge,
Basirhat, North 24 Parganas in Sessions Trial No. 3 (1) of
2006.
16. The appeal is allowed.
17. The appellant being stated to be on bail, he be discharged of
the bail bond.
17. Accordingly, the appeal being CRA 636 of 2007 is disposed of.
18. The L.C.R. be sent down to the Trial Court.
(Chitta Ranjan Dash, J.)
(Partha Sarathi Sen, J.)
