Chunaram Sardar vs State Of West Bengal
2022 Latest Caselaw 648 Cal

IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE

Present:

The Hon'ble Justice Joymalya Bagchi And The Hon'ble Justice Bivas Pattanayak

C.R.A. 415 of 2004 Chunaram Sardar

-Vs-

                                   State of West Bengal


For the Appellant:            Mr. Saryati Datta, Adv.

For the State           :     Mr. Saswata Gopal Mukherjee .. Ld. Public Prosecutor
                              Ms. Amita Gaur, Adv.

Heard on                :     18.02.2022

Judgment on             :     18.02.2022


Joymalya Bagchi, J. :-

The appeal is directed against judgment and order dated 27.11.2003

passed by the learned Additional Sessions Judge, 2nd Court, Bankura in

Sessions Trial No. 5(11) of 2001 arising out of Sessions Case No.12(9) of

2001 convicting the appellant for commission of offence punishable under

Sections 302/201 of the Indian Penal Code and sentencing him to suffer

imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer

simple imprisonment for six months more for the offence punishable

under Sections 302/201 of the Indian Penal Code. No separate sentence

was awarded for the offence punishable under Section 201 IPC.

The prosecution case as alleged against the appellant is to the effect

that on 15.09.1991 the appellant had murdered his elder brother namely,

Arun Sardar with a bonti at his residence. Thereafter, with the aid of his

father they disposed of the dead body in the canal. Immediately after the

incident, the appellant went to the residence of one Gurupada Garai (PW

7) and wanted to stay in his house for the night. When Gurupada

enquired, the appellant stated that he has done a great blunder and on

further questioning divulged that he had murdered his elder brother,

Arun. Consequently, Gurupada was unwilling to give refuge to the

appellant and the latter left the spot after threatening him not to disclose

the incident to anyone. On the next day in the morning, Gurupada

disclosed the incident to local villagers. Thereafter, the local villagers went

to the residence of the appellant and found the courtyard was being

cleaned with mud. When they asked why the courtyard was being cleaned,

father of the appellant did not answer. Then, he stated that there was a

quarrel between his sons and both of them left. Upon being pressurized,

he disclosed that the appellant had murdered his elder brother at 10:00

p.m. on the previous night. Local people requested father of the appellant

to lodge complaint but he lodged a false missing diary being GDE No. 273

dated 17.09.1991. On the next day, an unknown dead body was recovered

from the main canal of Kangshabati at Piralgora. PW 14, Officer-in-charge

of Sarenga Police Station held inquest over the dead body and registered

Sarenga Police Station Case No.16 of 1991 dated 17.09.1991 under

Sections 302/201 of the Indian Penal Code against unknown accused

persons. Subsequently, a local villager, namely, Samir Kumar Panda (PW

10) identified the same as the body of the victim. On 18.09.1991, PW 1

lodged written complaint against the appellant and his father namely,

Rajendra Sardar. Appellant and his father were arrested and on their

showing, a blood stained bonti was recovered in a bush beside the

courtyard. Blood stained gamcha and other articles were also recovered.

FSL report collected in course of investigation show that the articles bore

human blood. Charge-sheet was filed against the appellant, his father

namely, Rajendra Sardar and his mother namely, Mithila Sardar.

Subsequently, Rajendra Sardar expired. Charges were framed against the

appellant and his mother under Sections 302/201/34 of the Indian Penal

Code. Accused persons pleaded not guilty and claimed to be tried. In

course of trial, prosecution examined 22 witnesses and exhibited a

number of documents. Defence of the accused persons was one of

innocence and false implication. In conclusion of trial, the learned trial

Judge by the judgment and order dated 27.11.2003 convicted and

sentenced the appellant, as aforesaid. However, by the selfsame judgment

and order, mother of the appellant namely, Mithila Sardar was acquitted

of the charges levelled against her.

Mr. Saryati Datta, learned Advocate appearing for the appellant

submits that the prosecution case suffers from various lacunae and/or

inconsistencies. Though PW 1 claimed that he came to know that the

appellant had murdered his brother on the very next day i.e. 16.09.1991,

FIR was lodged on 18.09.1991. Such delay militates against the

truthfulness of the prosecution case. Extra-judicial confession made to PW

7 is highly unnatural and does not inspire confidence. Purported

statement made by father of the appellant to witnesses is inadmissible.

There is no evidence how the appellant had carried the dead body from the

place of occurrence to Kangshabati canal. Statement of the appellant

leading to recovery of blood stained bonti has not been proved. Hence, the

appellant is entitled to acquittal.

In reply, Ms. Amita Gaur, learned Advocate appearing for the State

argued extra-judicial confession made by the appellant to PW 7 is most

natural. After committing the crime, appellant wanted to take refuge at the

residence of PW 7 and therefore, disclosed the incident to him. On the very

next day, PW 7 disclosed the incident to other witnesses. Initially, father of

the appellant namely, Rajendra Sardar made false statement but

subsequently he disclosed that the appellant had murdered his brother.

He lodged false missing diary at police station. Blood stained earth was

recovered from the courtyard establishing the place of occurrence. Blood

stained articles including weapon of offence i.e. bonti was recovered on the

showing of the appellant. Hence, the appeal is liable to be dismissed.

PW 7 (Gurupada Garai) is the most vital witness to whom the

appellant made extra-judicial confession. He deposed he was sleeping at

his residence when the appellant came to his residence and wanted to stay

for the night. He wanted to know the reason for the appellant to make

such request. Thereupon the appellant stated that he had made a great

blunder and on further query he stated that he had murdered his elder

brother. Under such circumstances, PW 7 was unwilling to give shelter to

the appellant whereupon he threatened him and left the spot. On the next

day, PW 7 disclosed the incident to other villagers. Thereafter, the villagers

assembled in the village Atchala and in the afternoon went to the house of

the appellant. Father of the appellant initially stated that his sons were

quarrelling and had left the house but on further persuasion divulged that

the appellant had murdered his brother. He further deposed he made

statement before the Magistrate.

The aforesaid extra-judicial confession narrated by PW 7 is

corroborated by other prosecution witnesses.

PW 1 (Amar Sankar Garai) deposed he had heard from local villagers

that the appellant had confessed to Gurupada about the murder.

Thereafter, they went to the house of the appellant and found the

courtyard was being cleaned with cowdung. Appellant's father initially

evaded to come out with the truth but subsequently stated that the

appellant had murdered the victim. PW 1 lodged the written complaint.

PW 2 (Hrishikesh Garai), PW 3 (Krishnapada Garai), PW 4 (Lularam

Murmu), PW 6 (Kartick Garai), PW 8 (Prasanta Murmu) and PW 9 (Arun

Kr. Garai) have stated in unison that they were present on the next day in

the morning when Gurupada stated about the extra-judicial confession.

These prosecution witnesses have also deposed with regard to the

statement made by the father of the appellant with regard to the fact that

the appellant had murdered his brother. Names of some of the witnesses

namely, PWs. 2, 4, 8 & 9 also find place in the FIR as the persons to whom

Gurupada had narrated the extra-judicial confession made by the

appellant.

It is argued the extra-judicial confession is unnatural and does not

inspire confidence. I have analyzed the evidence of PW 7 in the backdrop

of the aforesaid submission. A deeper analysis of his deposition shows the

circumstances in which the appellant had made the extra-judicial

confession. PW 7 was a local villager and of the same age as the appellant.

He was a man in whom the appellant reposed confidence. Hence, it was

natural for the appellant to rush to him after committing the crime. The

tenor of the extra-judicial confession also points to its truthfulness.

Appellant wanted to take shelter in the residence of PW 7. To invoke his

sympathy, appellant stated he had committed a great blunder and on

further query made the extra-judicial confession. As the witness was

unwilling to help the appellant, he left the spot after threatening him. On

that very next day, PW 7 divulged the incident to local villagers who have

been examined in court. The circumstances in which the appellant

reposed trust in the witness and made the extra-judicial confession is

proved beyond doubt. There is no circumstance which points to any

threat, coercion or undue influence on the appellant at the time when he

made such confession. Extra-judicial confession to PW 7 is further

corroborated by the evidence of other witnesses namely, PWs. 1, 2, 3, 4, 6,

8 & 9 who unequivocally stated on the very next day the confession was

conveyed to them by PW 7. Hence, I am of the opinion the extra-judicial

confession made by the appellant is voluntary, reliable and truthful in

nature.

It has been strenuously argued the prosecution case is a concocted

one as no complaint was lodged against the appellant soon after the extra-

judicial confession came to light. If one examines the FIR along with the

deposition of the informant, PW 1 it would be clear that delay has been

duly explained. After the extra-judicial confession came to light, PW 1 and

others confronted the father of the appellant who after initial hesitation

divulged the guilt of his son. Thereupon, they told him to lodge complaint

but he registered a false missing diary. Under such circumstances, local

villagers waited for sometime but when the dead body of the victim was

recovered and identified by PW 10, PW 1 lodged written complaint and set

the law into motion. These circumstances have remained unchallenged in

course of trial and clearly explain why there was delay in lodging the FIR.

Delay had been prompted due to the subterfuge resorted by the father of

the appellant in lodging a missing diary based on incorrect facts.

Accordingly, I am of the opinion delay in the present case has been duly

explained by the prosecution.

With regard to the recovery and identification of the dead body, I

find on 17.09.1991 an unknown dead body was recovered from Piralgora

canal. PW 14, Officer-in-charge of the jurisdictional police station i.e.

Sarenga Police Station held inquest over the dead body and registered

Sarenga Police Station Case No. 16 of 1991 under Sections 302/201 IPC

against unknown persons. Upon hearing the news of recovery of an

unknown dead body in the canal, PW 10, a local villager, went to the

morgue and identified the body as that of the victim. No serious challenge

to the identification of the dead body has been thrown by the defence.

Thus, the recovery of the dead body of the victim from the Piralgora canal

and its identification have duly been proved. Further, upon identification

of the dead body and registration of FIR in the present case, Sarenga

Police Station Case No.16 of 1991 was clubbed with this case.

PW 17, (Dr. J. N. Dey), post-mortem doctor proved the post-mortem

report. He deposed one Dr. Subrata Batabyal, demonstrator of Bankura

Medical College & Hospital had conducted the post mortem examination.

As per report, following injuries were noted :-

As per report abrasion all over the body, injury 1"/1/2" above right shoulder joint, 1/2"/ 1/2" injury over lateral aspect of mid part, 1"/ 3/4" over right anterior abdominal wall upper part at mid clavicular line just below right coastal arch, injury 21/2"/21/2" lateral chest wall 1"/ 1/2" left front of chest. Black shade in colour, non-shaped of the incised wound. Incised wound 10"/1" obliquely over front of neck. Bruise over the body.

One incised wound 11" x 3" x cervical vertebrae obliquely in front of the neck.

One incised wound 101/2" x 10" over cervical vertebrae.

He deposed death was homicidal in nature. He further deposed that

injuries had irregular edges and may be caused by a bonti. Analysis of his

evidence would, therefore, show that the victim had died due to ante

mortem injuries which could have been caused by a bonti.

PW 20 (Binoy Kr. Das), PW 21 (Pranab Kr. Chatterjee) and PW 22

(Chowdhury Nijanur Rahaman) are the Investigating Officers of the case.

PW 20 deposed he commenced investigation upon receipt of FIR. He

went to the place of occurrence and prepared sketch map with index. He

arrested the appellant and his father namely, Rajendra Sardar. On their

showing, one blood stained bonti was seized from a bush 20 cubits from

the courtyard. Blood stained earth was also seized from the courtyard

under a seizure list. One blood stained gamcha and chatai were also seized

on the showing of the appellant and his father. He also collected FSL

report in respect of the seized articles. Subsequent investigation was

conducted by PW 21 and finally PW 22 submitted charge-sheet. Seizure of

blood stained weapon of offence as well as blood stained earth from the

place of occurrence is supported by independent witnesses namely, PWs. 8

& 9 who proved their signatures on the seizure list.

It has been argued that the body had been recovered from the

Piralgora canal which is 6-7 miles away from the village. Nobody saw the

appellant carry the dead body to the said spot. Evidence has come on

record there was a canal in the village itself. The village canal is a

continuous canal of Kangshabati project and a part of the main canal at

Piralgora point. Judged from that perspective, it is evident the appellant

after committing the murder of his brother had thrown his body in the

village canal and the body had floated away into the main canal. After two

days it was recovered at Piralgora point within Sarenga Police Station.

Hence, there is no break in the chain of circumstance with regard to the

murder of the victim and the recovery of the body from the canal at

Piralgora point.

I, however, find substance in the submission of the learned Advocate

for the appellant that the statement made by the father of the appellant

who was an accused but, subsequently died, to the effect the latter had

murdered his brother, cannot be used against him in the trial. However,

other evidence on record clearly establish the following circumstances

unerringly pointing to the guilt of the appellant:

(a) The victim ordinarily used to reside with the appellant in the same

residence.;

(b) On the night of occurrence i.e. 15.09.1991, appellant came to the

residence of his friend (PW 7) and wanted to take shelter for the

night. On being queried he confessed to his friend who, however,

refused to help. Thereafter, the appellant left the spot threatening

him.

(c) On the next day PW 7 informed the incident to local villagers

particularly, PWs. 3, 4, 8 & 9.;

(d) Local villagers went to the residence of the appellant and found

that the courtyard was being cleaned with cowdung.;

(e) On query, father of the appellant gave evasive reply. Thereafter,

he lodged a false missing diary stating that both his sons went

missing from 15.09.1991.;

(f) Appellant was found missing from the village from the night of

15.09.1991 till his arrest on 19.09.1991.;

(g) An unknown dead body was recovered from a canal at Piralgora

point which was suspected to be that of the victim. PW10

identified the unknown dead body of that of the victim.;

(h) Post-mortem report shows incised wounds which post-mortem

doctor (PW 17) deposed could be caused by bonti.

(i) On the showing of the appellant blood stained bonti i.e. weapon of

offence was recovered from a bush near the courtyard. Other

articles like blood stained gamcha, chatai etc. were also recovered

on the identification of the appellant.;

(j) No explanation is offered by the appellant with regard to his

absence from the residence in the night of 15.09.1991 till his

arrest in the present case.

These circumstances have been duly proved and unequivocally establish

the guilt of the appellant.

Conviction and sentence imposed upon the appellant is accordingly,

upheld.

The appeal is accordingly, dismissed.

Appellant has undergone more than 18 years of imprisonment.

Evidence has come on record that the victim was addicted to liquor and

led wayward life. Although there is no evidence of sudden and grave

provocation by the victim which would justify reduction of conviction to

one under Section 304 IPC, the aforesaid extenuating circumstances may

be taken to consideration in the event the appellant files an application for

pre-mature release under Section 433A of Code of Criminal Procedure

however, subject to other relevant considerations including his conduct in

the correctional home.

Lower court records along with a copy of this judgment be sent

down at once to the learned trial court for necessary action.

Photostat certified copy of this order, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I agree.

 (Bivas Pattanayak, J.)                              (Joymalya Bagchi, J.)




tkm/akd/PA (Sohel)