Biswajit Hembram & Ors vs The State Of West Bengal
2022 Latest Caselaw 6660 Cal

Sl. No. 44

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL APPELLATE JURISDICTION
                            Appellate Side



Present:

The Hon'ble Justice Joymalya Bagchi

                 And

The Hon'ble Justice Ajay Kumar Gupta



                          C.R.A. 145 of 2011

                       Biswajit Hembram & Ors.
                                    Versus
                       The State of West Bengal



For the appellants          :        Mrs. Manasi Roy




For the State               :        Mr. Saswata Gopal Mukherjee
                                     Ms. Sreyashee Biswas



Heard on                        :    07.09.2022



Judgment on                  :       16.09.2022


Ajay Kumar Gupta, J:

1.

The appeal is directed against the judgment and order dated

22.12.2010 passed by the Learned Additional Sessions Judge, Kalna,

Burdwan in connection with Sessions Trial No. 01 of 2008 arising out of

Sessions Case No. 73 of 2007, thereby convicting the Appellants namely,

Biswajit Hembram, Mithun Murmu and Bhadu Tudu for commission of

offence of committing rape upon the minor victim girl and murdered her

jointly in furtherance of their common intention punishable under Section

376 (2) (f) (g) /302 /34 of the Indian Penal Code and sentencing them to

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

default, to suffer rigorous imprisonment for further 1 year more.

2. The prosecution as alleged against the Appellants/convicts is to the

effect that the father of the victim girl filed a written complaint on

28.05.2007 alleging that his daughter aged about 11 years was found

missing and he searched everywhere but he could not find her. At about 6

p.m, when he again went to search for his daughter, he saw Appellants

Biswajit Hembram, Mithun Murmu and Bhadu Tudu near the jute field of

Nemai Pal, when he enquired about his daughter, all of them fled away. This

raised suspicion in his mind and on going to the jute field of Nemai Pal, he

found his daughter lying in the field with blood oozing from her nose and

private parts, her wearing apparels were torn.

3. On the basis of the written complaint lodged by the father of the

victim at the police station, Officer-in-Charge, Kalna Police Station started

Kalna P.S. Case No. 126/2007 dated 28.05.2007 under Section 376 (2) (f) (g)

/302/34 of the Indian Penal Code and U/D Case No. 93/2007 dated

28.05.2007. After completion of investigation, charge sheet was submitted

against all the Appellants. Accordingly, charges were framed under Section

376 (2) (g) /302/34 of the Indian Penal Code. The appellants pleaded not

guilty and claimed to be tried.

4. In course of trial, prosecution examined 15 witnesses and exhibited

number of documents as Exhibits 1 to 28 respectively.

5. Defence of the Appellants was that they are innocent and have been

falsely implicated. No evidence, however, was led on behalf of the defence.

6. After appreciation of the oral evidence and considering the documents

exhibited by the prosecution, the Trial Judge, by impugned judgment and

order, convicted and sentenced the appellants as mentioned above.

7. Mrs. Manasi Roy, learned counsel, appearing on behalf of the Appellants,

submitted that there is no eye witness. This case is totally based on

circumstantial evidence. Chain of circumstances is not complete to prove

the guilt. As such Trial Court erred in law in convicting the Appellants.

Learned Counsel further pointed out that the Appellants were not last seen

together with the victim. It is further submitted that the Trial Court erred in

law in relying on the confessional statement made before the villager in

presence of the police officer is inadmissible. Evidences of prosecution are

not reliable due to vital contradictions and inconsistencies. Accordingly, the

appellants cannot be held responsible for the rape and murder of the victim.

8. On the other hand, Ms. Sreyashee Biswas, learned advocate,

supported the prosecution case.

9. I have gone through the evidence on record meticulously which reveal

as follows:

P.W. 1 is the father of the minor victim girl. He deposed on 25 th

November, 2009 his daughter had gone to collect paddy stalks in a nearby

field. She did not return. He searched for his daughter from 12 noon when

she went missing but she was not found. Finally at about 6 p.m., he again

went out to search and when he reached on the road near the jute field of

Nemai Pal, he saw a bundle of paddy lying on the ground. At the same time,

he found three persons namely, Mithun and two others. He enquired about

her daughter but they fled away. At that point of time, he also saw some of

the jutes lying broken in the jute field and doubted something was wrong.

He found his daughter lying dead on the ground. Her nose and private parts

were bleeding and her apparels were in torn condition. He knew the

appellants on account of his regular visit to Kashipur. He further stated in

his evidence after apprehension of the accused persons by the Police they

admitted their guilt.

P.W. 2 is a photographer by profession. He proved the photographs

and negatives of the minor victim girl marked as Exhibit 1 series.

P.W. 3, a constable of Kalna P.S. went to the spot with his senior

Allauddin and found the dead body of the minor girl aged about 10/11 years

in the field. Her nose and private parts were bleeding. Alluddin Sk, held

inquest over the dead body and prepared report marked as Exhibit 23. He

took the dead body to Kalna Hospital for post mortem examination. He

collected the viscera and also specimen of blood in a tube and deposited the

same at the P.S. He also collected semen of the accused for test and

collected P.M. report of the deceased.

P.W. 4, Doctor was assigned to hold post mortem examination of the

victim girl. Due to gravity of the case, he formed a medical board and

performed the examination. The Board comprised of forensic doctors and

surgeon who opined rigor mortis was present in both limbs, multiple

abrasions over upper part of chest wall and upper part of abdomen along

with marks of nail scratches. Bruise and recent bleeding were found over

the left arm and neck region and vagina was ruptured. Vaginal swab was

taken and sent to police personnel. The uterus and vaginal swab were

preserved. The cause of death was due to shock from multiple injuries over

the body and due to vaginal rapture and bleeding.

P.W. 5, Dr. Snehangshu Kalna was also a member of the board who

conducted post mortem examination over the dead body of the minor victim

girl along with other two doctors. He deposed report was written by Dr.

Monoranjan Adhya under the supervision of three doctors.

P.W 6, one of the villagers of Kashipur stated that he knew de-facto

complainant (P.W. 1) and submitted that he used to come along with his

family and others for last 7 to 8 years twice in a year once during boro

cultivation and again during sowing of potato seeds. P.W. 1 came in 2007

and the alleged incident occurred on 25.07.2007 at about 12/1 p.m. P.W. 1

informed them that his daughter aged about 10/11 years was missing.

Accordingly, P.W. 6 along with other villagers searched everywhere but did

not find her. At about 4 to 5 p.m, when he went to visit his land, while he

was returning home from his field, he found the Appellants passing through

the land of Nemai Pal at high speed. After 10 minutes he heard hue and cry

and went towards the jute field of Nemai Pal from where hue and cry was

coming. He found the minor victim girl lying dead. Parts of her body were

tied with jute bark. Her frock was torn and lower garment was open and

there was bleeding from her nose, mouth and private parts.

P.Ws. 7, 8, 11 and 13 also stated that they heard the sound of crying

from the jute field of Nemai Pal and when they went they found the dead

body of the victim girl as stated by P.W.6.

P.W. 9 stated that he heard that someone had murdered a girl in the

jute field of Nemai Pal and went to the spot hearing hue and cry there from.

He found that blood was oozing out from the mouth, nose and private part

of the victim. Her hands and legs were tied with jute bark. He further stated

he could understand that she was raped and then murdered. Many people

had gathered at the P.O. The police came on the next day and arrested the

Appellants, who confessed their guilt before the police and villagers.

P.W. 10 stated the facts that on the next day when he went in front of

the school near the village where public were interrogating the Appellants

where they confessed before the public that they had raped the girl and

thereafter, murdered her.

P.W. 12 is a Judicial Magistrate who recorded the statements of the

witnesses namely, 1. Purna Chandra Pal, 2. Madan Soren and 3. Mantu Pal

under Section 164 of the Cr.P.C. The statements were marked as Exhibit 14,

15 and 16 respectively.

P.W. 13 stated on the next morning local villagers searched three

accused persons, brought them and handed them over to police. The

accused persons confessed their guilt before the villagers and the police and

thereafter police took away the accused persons.

P.W. 14, another Judicial Officer recorded the statement of one

Subhas Pal on 17.07.2007, Kusodwhaj Halder on 25.07.2007 and Rasid Sk

on 26.07.2007 under Section 164 Cr.P.C. The statements were marked as

Exhibits 18, 19 and 20 respectively.

P.W. 15, I.O. visited the place of occurrence and prepared rough

sketch map. He also took photographs of the dead body with the help of

expert photographer. He held inquest over the dead body and made seizure

lists. He also seized wearing apparels of the appellants under three separate

seizure lists. He also produced the Appellants for medical examination. He

also collected the semen of the accused for forensic test. He collected semen

of the deceased during investigation and finally after conclusion of

investigation, submitted charge sheet against the accused persons under

Section 376 (2) (f) (g) /302 /34 of the Indian Penal Code.

10. Upon perusal of the evidence and judgment delivered by the trial

Court, I find the trial Court had accepted the extra judicial confessions

made before the villagers in presence of police and also de-facto

complainant. Trial Court contended that confession made before the police

need not be admissible but extra judicial confession made before the public

is admissible in law and being satisfied that it is reliable, trustworthy,

voluntary and beyond reproach and made by the accused in a fit state of

mind can be relied on for conviction on the basis of decisions reported in

2010 Cr.LJ 3247. Trial Court also observed that the confession of the

appellants to the villagers is strong evidence. Such confession requires no

corroboration.

11. It is an admitted fact that the victim was raped and subsequently

murdered but there is no eye witness. The case is totally based on

circumstantial evidence.

12. In the light of above evidence on record, it appears two most vital

circumstances brought on record from the side of prosecution are that the

appellants were seen at the place of occurrence by some of the prosecution

witnesses and that they had made confessional statements before villagers

in presence of police.

What emerges before this Court is whether such evidences are

sufficient to sustain the conviction or not?

13. It is the golden principle of the criminal law that howsoever grievous

or heinous a crime is, an accused shall be presumed to be innocent until the

prosecution case is proved beyond reasonable doubt. Furthermore, it is well

settled that in a case resting on circumstantial evidence, the circumstances

put forward must be satisfactorily proved and they should be consistent

only with the hypothesis of guilt of the accused.

In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh 1, the Apex Court observed:

"It is well to remember that in cases where the evidence is of a

circumstantial nature, the circumstances from which the conclusion of guilt is

to be drawn should be in the first instance be fully established and all the

facts so established should be consistent only with the hypothesis of the guilt

of the accused. Again, the circumstances should be of a conclusive nature and

tendency and they should be such as to exclude every hypothesis but the one

AIR 1952 SC 343

proposed to be proved. In other words, there must be a chain of evidence so

far complete as not to leave any reasonable ground for a conclusion consistent

with the innocence of the accused and it must be such as to show that within

all human probability the act must have been done by the accused."

14. Confession has been categorised in Sections 24, 25 and 26 of the

Evidence Act which read as follows:

"S.24. Confession caused by inducement, threat or promise,

when irrelevant in criminal proceeding.

A confession made by an accused person is irrelevant in a criminal

proceeding, if the making of the confession appears to the Court to have been

caused by any inducement, threat or promise having reference to the charge

against the accused person, proceeding from a person in authority and

sufficient, in the opinion of the Court, to give the accused person grounds

which would appear to him reasonable for supposing that by making it he

would gain any advantage or avoid any evil of a temporal nature in reference

to the proceedings against him.

S.25. Confession to police officer not to be proved.- No confession made

to a police officer, shall be proved as against a person accused of any offence.

S.26. Confession by accused while in custody of police not to be

proved against him.

No confession made by any person whilst he is in the custody of a police

officer, unless it be made in the immediate presence of a Magistrate, shall be

proved as against such person."

15. From the perusal of above provisions, confession must be made to a

person without any inducement, threat or promise or influence. Here the

confessional statement made before the villagers in presence of police falls

under the purview of Sections 25 and 26 of the Evidence Act. In this regard,

I rely on the following authorities. Firstly, in State Of U.P. vs Deoman

Upadhyaya2, the Apex Court held at Para 9 as follows:

"9. On an analysis of ss. 24 to 27 of the Indian Evidence Act, and s. 162 of the Code of Criminal Procedure, the following material propositions emerge :-

(a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence.

(b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate.

(c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence.

(d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person such latter person not being a police officer may be proved if it is otherwise relevant.

(e) A statement made by a person to a police officer in the course of an investigation of an offence under Ch. XIV of the Code of Criminal Procedure, cannot except to the extent permitted by s. 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect

AIR 1960 SC 1125

of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence."

Secondly, in State v. Gangula3, the Hon'ble Court held that:-

"If the accused is within the ken of surveillance of the police and his

movements are restricted then he is in custody. If in such state he made any

statement to any person be he not a Police officer his confession is

inadmissible and hit by section 26 of the Evidence Act."

16. So, considering the above judgments, I do not find the extra judicial

confessional statement made before the villagers under surveillance or

movement restriction of the accused persons from the side of public and

police officer is admissible in law. The Appellants must be free from police

influence or possibility of being under police influence. Furthermore, none of

the Appellants were last seen together with the victim. In addition,

statement made by the de-facto complainant, P.W. 1 is not consistent with

other witnesses. There are vital contradictions about the manner, place as

well as time, where they had seen the appellants and their arrest. This

creates serious doubt in the mind of this Court with regard to the

prosecution case.

17. Evidences of the witnesses that they had seen the appellants near the

place of occurrence is doubtful because their evidence is clearly

contradictory about the place and time when they saw the appellants. The

time and place as stated by P.W. 1 is the jute field of Nemai Pal at about 6

(1997) 1 SCC 272

P.M., by P.W. 6 is after 5 P.M. passing through the land of Nemai Pal at high

speed and P.W. 10 saw them while returning home at about 4/4.30 P.M.

loitering by the side of Nemai Pal's land. P.W. 13 stated he heard P.Ws. 1

and 6 had seen appellants around the jute field at about 12.30/1 P.M.

Even the time and place of arrest is unclear. P.W.1 stated police

arrested the appellants at about 8/9 am on the next day when they were in

the control shop of Mantu Pal. P.W.6 stated on the next day at about 12

noon police went to the village and arrested the appellants with the help of

local villagers.

18. Under such circumstances, I do not find confidence to rely on the

evidence led by the prosecution to prove the appellants being seen at the

place of occurrence.

As discussed earlier, confessional statements of the appellants were

recorded in presence of the police when appellants were not free agents.

Hence, they are inadmissible in law. Accordingly, the vital incriminating

circumstances relied by the prosecution have not been proved. Suspicion,

howsoever high, cannot take the place of proof. Accordingly, appellants are

entitled to the benefit of doubt and ought to be acquitted.

19. The impugned judgment and order of conviction and sentence is,

thus, set aside.

20. The Appellants are acquitted of the charges levelled against them.

21. Accordingly, the appeal is allowed.

22. Appellants shall be set at liberty forthwith if they are not wanted in

any other case, upon execution of a bond to the satisfaction of the Trial

Court which shall remain in force for a period of six months in terms of

Section 437A of the Code of Criminal Procedure.

23. Lower Court records along with a copy of judgment be sent down at

once to the Learned Trial Court for necessary action.

24. Photostat certified copy of this judgment, if applied for, be given to the

parties on priority basis on compliance of all formalities.

I Agree.

(Ajay Kumar Gupta, J)                                       (Joymalya Bagchi, J)




P. Adak (P.A.)