Calcutta High Court (Appellete Side)
Gopeshwar Majhi & Anr vs State Of West Bengal on 13 July, 2023
Item No. 39-40
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. 234 of 2013
Gopeshwar Majhi & Anr.
-Vs-
State of West Bengal
With
C.R.A. 268 of 2013
Nemai Mondal
-Vs-
State of West Bengal
For the Appellants
(CRA 234 of 2013) : Mr. Moinak Bakshi, Adv.
Ms. Roma Roy. Adv.
Ms. Pramita Banerjee, Adv.
For the Appellants
(CRA 268 of 2013) : Mr. Kusal Kumar Mukherjee, Adv.
Ms. Eshita Aich, Adv.
For the State : Mr. Parthapratim Das, Adv.
Ms. Amita Gaur, Adv.
Heard on : 06.07.2023, 13.07.2023
Judgment on : 13.07.2023
2
Joymalya Bagchi, J.:-
1.
Appeals have been filed assailing judgment and order dated
26.07.2013 and 27.07.2013 passed by the learned Additional District
and Sessions Judge, Fast Track Court, Kalna in Sessions Trial No.01 of
2010 arising out of Sessions Case No.01 of 2009 convicting the
appellants for commission of offence punishable under Sections 302/34
and under Sections 201/34 of the Indian Penal Code and sentencing
them to suffer rigorous imprisonment for life and to pay a fine of
Rs.2,000/- each, in default, to suffer rigorous imprisonment for six
months for the offence punishable under Section 302/34 of the Indian
Penal Code and to suffer rigorous imprisonment for three years and to
pay fine of Rs.1,000/- each, in default, to suffer rigorous imprisonment
for three months more for the offence punishable under Sections
201/34 of the Indian Penal Code; both the sentences to run
concurrently.
2. Prosecution case as alleged against the appellants is to the effect
that one Sanjoy Mukherjee, the deceased intended to sell a CD Machine
with boxes to one Becharam @ Becha @ Tapas Majhi. Accordingly, on
14.11.2008 at 8.00 P.M. Sanjoy along with Becha transported the CD
Machine with a box in the rickshaw of one Kajal Biswas @ Kaju (P.W. 9)
to the residence of Becharam. Sanjoy accompanied the CD machine on
his bicycle with Becharam. Sanjoy did not return home till mid-night.
Guru Charan Mukherjee (P.W. 1), father of Sanjoy and his brother Ujjal
Mukherjee @ Tutu went to the house of Kajal @ Kaju and the latter
informed them there was an altercation between Sanjoy and Becharam
over the price of the CD Machine and Becharam told Kajal to return to
his residence assuring that he would escort Sanjoy to his home.
Hearing this, P.W. 1 and others went to the house of Becharam.
Gopeshwar Majhi, father of Becharam told them that Sanjoy had left for
his residence. Believing him they returned. But Sanjoy remained
untraceable. Guru Charan tried to ascertain the whereabouts of Sanjoy
by telephoning his relations. But to no avail. In the morning he and
other villagers again went to the house of Becharam and enquired from
the latter and his father Gopeshwar regarding the whereabouts of
Sanjoy. They gave contradictory and evasive replies. At that juncture,
Guru Charan went to the police station to lodge written complaint
against Becharam and Gopeshwar on the suspicion that they had
abducted his son with the intention to murder him. In the meantime,
other villagers remained at the residence of Becharam. Ujjal (P.W. 11)
suddenly noticed the money bag of his brother Sanjoy lying in their
house. Upon confrontation and on repeated queries Becharam and his
father finally admitted that they had strangulated Sanjoy and thrown
his body into the river Ganges. They also stated that they had been
aided and abetted by their neighbour Nemai Mondal. Soon thereafter
police came to the spot and arrested Becharam and his father,
Gopeshwar. On interrogation they admitted their guilt. CD Machine
with a box, money bag and other articles were recovered from their
residence. On their showing the bicycle of the victim was recovered
from the river. Napkin used to murder the victim was also recovered.
On the next day, body of Sanjoy was found floating in the river and was
recovered. Post mortem doctor (P.W. 13) opined that Sanjoy had been
strangulated to death. Charge-sheet was filed against Becharam and
his father, Gopeshwar and Nemai Mondal.
3. The case was committed to the Court of Sessions and charges
were framed under Sections 364/34, 302/34 and 201/34 of the Indian
Penal Code. Appellant pleaded not guilty and claimed to be tried.
Prosecution examined 17 witnesses and exhibited a number of
documents. Defence of the appellants was one of innocence and false
implication.
4. In conclusion of trial, learned trial Judge by the impugned
judgment and order convicted and sentenced the appellants, as
aforesaid.
5. Mr. Bakshi, learned Counsel for the appellants Becha @ Tapas
Majhi and Gopeshwar submits prosecution has not been able to prove
its case beyond doubt. Last seen theory is founded on the sole
testimony of Kajal @ Kaju (P.W. 9) which is not corroborated by other
witnesses. Becharam and his father were threatened and detained by
local people. So-called extra-judicial confession is not a voluntary one.
On 16.11.2008 dead body was found floating in the river Ganges and
cannot be said to have been recovered pursuant to the leading
statements of the appellants. Chain of circumstances is not complete
and the appellants are entitled to an order of acquittal.
6. Mr. Mukherjee, learned Counsel for the appellant, Nemai
Mondal submits apart from extra-judicial confession of co-accused, no
other evidence was led against his client. Hence, he may be acquitted.
7. Mr. Das and Ms. Gaur, learned Counsels for the State submit
prosecution has established the guilt of the appellants. Rickshaw
puller (PW 9) deposed he accompanied the deceased to the residence of
Becharam. He also stated there was an altercation between them over
the price of the CD Machine. His deposition is corroborated by other
witnesses viz. P.W.s 1, 7 and 11. Becharam and his father, Gopeshwar
gave out contradictory and/or evasive answers regarding whereabouts
of the deceased. Subsequently, they made extra-judicial confession
admitting their guilt. On their showing the bicycle of the victim was
recovered. Extra-judicial confession disclosed the role of Nemai Mondal
in the crime. Aforesaid incriminating circumstances establish their guilt
beyond doubt.
8. Prosecution case is based on circumstantial evidence which may
be broadly categorized in the following manner :-
(i) Last seen theory:-
9. P.W 1 (Guru Charan Mukherjee) is the father of the deceased.
He deposed on 14.11.2008 his son Sanjoy had accompanied Becharam
to his residence along with a CD Machine and box. The CD Machine
and box were carried in the rickshaw of Kajal @ Kaju. Thereafter, the
victim went missing and could not be traced. His deposition is
corroborated by rickshaw puller, Kajal @ Kaju (P.W. 9). P.W. 9 deposed
he had carried the CD Machine and box to the residence of Becharam.
Sanjoy and Becharam accompanied him on Sanjoy's bicycle. At
Becharam's residence there was an altercation between Becharam and
Sanjoy over the price of CD Machine. Becharam asked P.W. 9 to return
home. Accordingly, he went home. At night when P.W. 1 came to his
residence he informed him about the incident. Thereafter, they went to
the residence of Becharam to enquire about Sanjoy.
10. PW 7 (Raju Biswas) brother of Kajal @ Kaju substantially
corroborated the prosecution case that Kajal @ Kaju had carried the CD
Machine with box on his rickshaw to the residence of Becharam.
Sanjoy and Becharam accompanied Kajal @ Kaju. He also stated that
Kajal @ Kaju (PW 9) told him that there was an altercation between
Becharam and Sanjoy over the price of the CD Machine.
11. PW 11 (Ujjal Mukherjee @ Tutu Mukherjee), brother of the victim
has also corroborated the aforesaid facts.
12. Learned Counsels for the appellants submit there are
contradictions in the deposition of Raju and his brother Kajal with
regard to the fact who had called Kajal from his residence. While Raju
stated that Sanjoy had come to their residence and requested Kajal to
carry the CD machine, Kajal claimed that Becharam had come to his
residence and requested him to accompany him. Both witnesses,
however, corroborated the prosecution case that on the fateful night
Kajal had left for his residence and carried the CD Machine with box on
the rickshaw along with Sanjoy and Becharam.
13. In light of the aforesaid corroboration, minor contradiction as to
who requested Kajal to carry the CD Machine is of little consequence.
On the other hand, other witnesses, that is, father and brother of the
deceased and brother of Kajal (P.W. 7) have corroborated the
prosecution case that Kajal carried the CD Machine with box on his
rickshaw along with Sanjoy and Becharam. They also corroborated
Kajal on the account that there was an altercation between Becharam
and the deceased over the price of the CD Machine and Kajal had been
told by Becharam to return home.
14. In the light of the aforesaid discussion, I am of the view that
prosecution has been able to prove beyond doubt that Sanjoy had been
accompanied by Becharam to his residence with the CD machine and
boxes with the intention to sell them. There was an altercation between
them over the price of the CD Machine. Thereafter, the victim went
missing. Hence, prosecution case that the victim was last seen
quarreling with Becharam in the latter's residence in the night of
14.11.2008 is proved.
(ii) Evasive conduct of the appellants and their extra-judicial
confession:-
15. When Sanjoy did not return home till midnight his father and
his brother Ujjal Mukherjee @ Tutu (PW 11) went to the house of Kajal
who informed that he had last seen Sanjoy at the residence of
Becharam. Accordingly, they along with Raju (brother of Kajal) went to
the house of Becharam. Gopeswar, father of Becharam told them that
Sanjoy had left earlier. Believing him, PW1 returned home but Sanjoy
did not return throughout the night. Telephonic calls to relations with
regard to his whereabouts also did not yield any result. In the early
morning of 15.11.2008 PW1 and other villagers went to the residence of
Becharam. They asked Becharam and his father Gopeswar regarding
the whereabouts of Sanjoy. Becharam and his father gave evasive
replies. At that stage PW1 proceeded to the police station to lodge
complaint. Ujjal @ Tutu (PW 11) suddenly noticed the money bag of the
deceased lying in the house of Becharam. This raised further suspicion
and the villagers repeatedly enquired from Becharam and his father
regarding the whereabouts of the victim. Finally, Becharam and his
father admitted that they had strangulated the victim with a napkin
and drowned his body and bicycle in the river.
16. Extra-judicial confession made by Becharam and his father
Gopeswar has been proved by the local villagers namely Alok Kumar
Roy (PW2), Nityananda Gain (PW3), Netai Roy (PW4), Rajashree
Bhattacharjee (PW5), Arup Banerjee (PW8), Kajal Biswas @ Kaju (PW9)
as well as the relations of the deceased i.e. Ujjal Mukherjee @ Tutu (PW
11), Biswanath Roy (PW10) and Debabrata Roy (PW6).
17. Mr. Bakshi has challenged the voluntariness of the extra-
judicial confession. He contended Becharam and his father Gopeswar
had been detained, pressurized and threatened by the said witnesses.
Mr. Bakshi argued the witnesses have stated they 'pressurized',
'threatened' the appellants. He stressed on the aforesaid expressions to
bring home his contention that the confession was not a voluntary one.
18. I have given anxious consideration to his submission. Evidence
of a witness is to be read as a whole in the backdrop of normal human
conduct and attending circumstances of the case. Factual matrix as
narrated by the witnesses show the needle of suspicion pointing
towards the involvement of Becharam and his father Gopeswar in the
disappearance of Sanjoy. On the previous night Sanjoy had gone to the
residence of Becharam to sell the CD machine with box. There was an
altercation between them over the price. Thereafter, he did not return
home. When father of Sanjoy (P.W. 1) went to Becha's residence at
midnight the latter was unavailable. His father Gopeswar told that
Sanjoy had left their residence but Sanjoy was untraceable throughout
the night. In the next morning when P.W. 1 and local villagers again
went to the residence of Becharam, Becharam and his father gave
evasive replies with regard to the whereabouts of Sanjoy. At that
juncture, money bag of Sanjoy was found in their house. This raised
further suspicion and the local villagers repeatedly questioned
Becharam and his father with regard to the whereabouts of the missing
person. Conduct of the villagers to repeatedly question Becharam and
his father with regard to whereabouts of the missing person is most
natural. It cannot by any stretch of imagination be termed as coercive
or oppressive. It is nobody's case that the appellant had been
mishandled. On the other hand, they were merely informed that P.W. 1
had gone to the police station and the matter would be taken over by
police. Realizing that their game was over and the inevitable was nigh,
Becha and his father made extra-judicial confession.
19. If the expressions "pressurized" or "threatened" used by the
witnesses are read in the backdrop of the aforesaid state of affairs, they
lose their sinister connotation and do not render the making of the
extra-judicial confession involuntary or improbable. Reference may be
made to Chattar Singh and Anr. vs. State of Haryana1 wherein it was
held:-
"17. ...It must be borne in mind that every inducement, threat or
promise does not vitiate a confession. Since the object of the rule
is to exclude only those confessions which are testimonially
untrustworthy, the inducement, threat or promise must be such as
is calculated to lead to an untrue confession. On the aforesaid
analysis the court is to determine the absence or presence of an
inducement, promise etc. or its sufficiency and how or in what
measure it worked on the mind of the accused."
20. It is trite law reliability of an extra judicial confession must be
tested in the light of the attending facts and circumstances of the case.
When and under what circumstances and to whom the accused makes
the extra judicial confession is relevant to test its reliability. Becharam
and his father Gopeswar made an extra judicial confession before local
villagers. They are wholly uninterested witnesses and had no reason to
falsely implicate the accused persons. Sanjoy had been last seen at the
residence of Becharam. Thereafter, he was untraceable. Initially,
questioning of Becharam and his father yielded no result. At that
juncture, money bag of the victim was found at their residence. This
prompted the villagers to again quiz Becharam and his father with
regard to the whereabouts of Sanjoy. Conduct of the villagers in making
repeated enquiries appear to be in consonance with normal human
conduct. It cannot be said to be a coercion method to elicit false
confession from the accused. None of the witnesses mishandled the
2009 Cri. L.J. 319
accused. They were merely informed that the matter would be reported
to the police. Intimation to an accused that legal recourse is to be taken
in a matter cannot be considered to be an act of coercion, threat or
undue influence. Police had arrived after the extra judicial confession
had been made to the villagers and other witnesses. It cannot be said
that the confession was made in the presence of police officers or when
the appellants were in their custody or surveillance.
21. On the other hand, the circumstances leading to the extra
judicial confession gives an impression that Becharam and his father
initially resorted to various subterfuges to hide their involvement in the
murder. Ultimately being faced with the inevitable they voluntarily
confessed their guilt.
22. Evidence of witnesses corroborate each other with regard to
contents of the confession. This establishes its truthfulness beyond
doubt.
23. For the aforesaid reasons, I am of the opinion, manner and
circumstances in which the extra judicial confessions was made to
uninterested witnesses lends credence both to their voluntariness and
reliability.
(iii) Extra judicial confession - corroborated:-
24. Extra judicial confession made by the appellants have been
corroborated by other evidence.
25. PW13 post mortem doctor found the following injuries on the
victim:-
"(a)One ligature mark on the neck placed below the level of the thyroid
cartilage running horizontally continuous and completely encircling
the neck. The ligature mark was a dark brown grove with base
dried and hardened. It measure 2" and ½" long as traced and
was ½" wide. The mark could be traced as (i) 3" and ½" below
right angle of jaw. (ii) 4" below chin centrally and 3 ½" below left
angle of jaw and running along nape of neck to completely encircle
the neck. On dissection, the subcutaneous tissue beneath the
ligature mark appeared pale and whitened. Evidence of
extravasations 1" x 1" on right side 3" below the level of jaw and
2" away from the mid line, 1" x ½" on left side over anterior border
of stern mastoid, 3½" above its calvicular end, fracture of hyoid at
junction of left corner and body with evidence of bleeding at site of
fracture. Fracture of greater horn of thyroid cartilage on left side
with extravasation over lateral aspect of the muscles attached to
it;
(b) Bruised area 2" x 1" over mid region of chest 2 ½" below supra
sternal natch;
(c) Bruised 1" x 1" on right side of chest just below midpoint of
clavicle;
(d) Bruised 3" x 2" right forehead 2" above lateral end of the eyebrow;
(e) Bruised 3" x 1" obliquely placed on lateral aspect of right arm and
Bruised 3" x 2" dorsal aspect of right forearm 3" below elbow;
(f) Bruised 1" x 1" left dorsem of hand."
He opined that the victim had died due to strangulation by ligature,
ante mortem and homicidal in nature.
26. Hence, medical evidence has corroborated the extra-judicial
confessions of Becharam and his father Gopeswar in material
particulars.
(iv) Recovery of bicycle and other incriminating articles:-
27. After the arrival of the investigating officer (PW17) at the place of
occurrence Becharam and his father Gopeswar again narrated the
incident to him. On their showing CD machine with box, money bag
were recovered. Pursuant to the statement of Becharam and his father
Gopeswar, bicycle was recovered from the river ganges by P.W. 17.
Recovery was witnessed by P.Ws. 3 and 6. They corroborated P.W. 17
that the recovery was made on the showing of the said accused. On
16.11.2008 dead body of Sanjoy was found floating in the river ganges.
Inquest was held over the body and it was sent for post mortem
examination. Subsequently, a napkin used to commit the murder was
also recovered from the house of Becharam and Gopeswar in the
presence of P.Ws. 4, 5 and 16. The aforesaid evidence on record shows
that immediately after the incident on the showing of appellants the
bicycle of the victim had been recovered from the river. Even if one
discounts the recovery of the dead body on the showing of the
appellants, the aforesaid incriminating circumstances cannot be
washed away.
28. In the light of the aforesaid discussion, I am of the opinion
prosecution has been able to prove the following incriminating
circumstances against Becha and his father Gopeswar:-
(a) On 14.11.2008 at 8 p.m Sanjoy accompanied Becha to his
residence on his bicycle. Kajal @ Kaju, a rickshaw puller also
accompanied them with the CD set and box which were to be
sold to Becha.
(b) Kajol saw Becha quarreling with Sanjoy over the price of
the CD machine. Becha told Kajal to return home. Thereafter
Sanjoy went missing.
(c) At 12 midnight PWs 1, 7, 9 and 11 went to the residence of
Becha. His father Gopeswar stated Sanjoy had left his residence
but Sanjoy was untraceable throughout the night.
(d) On the next morning P.W. 1 and others again went to the
residence of Becha. Becha and his father Gopeswar gave
contradictory and inconsistent explanation with regard to
disappearance of Sanjoy.
(e) At this juncture money bag of Sanjoy was found at the
residence of Becha. Upon questioning, Becha and his father
made extra judicial confession admitting their guilt.
(f) On their showing bicycle of the victim was recovered from
the river.
(g) In the morning of 16.11.2008 dead body of the victim was
found floating in the river. PW13 opined death was due to
strangulation by ligature, ante mortem and homicidal in nature.
Medical evidence corroborates the contents of the extra judicial
confession.
(h) Various incriminating materials like CD with box, money
bag and napkin (weapon of offence) were recovered from the
residence of Becha and his father Gopeshwar.
29. These circumstances have been proved beyond doubt and form
a complete chain unerringly pointing to guilt of the appellants.
30. However, evidence against the appellant Nemai Mondal is most
sketchy. Apart from the extra-judicial confession of Becha and his
father Gopeshwar no other evidence was led by the prosecution to show
that he had played a role in the murder. Confession of a co-accused is
not substantive evidence. It can be used only to corroborate other
incriminating evidence on record. In the absence of independent
incriminating evidence showing involvement of Nemai Monal in the
murder prosecution cannot rest on the uncorroborated confession of a
co-accused to bring home the guilt.
31. Accordingly, we are inclined to acquit Nemai Mondal from the
charges levelled against him.
32. Conviction and sentence of Gopeshwar Majhi and Becha @
Tapas Majhi are upheld.
33. Conviction and sentence of Nemai Mondal is set aside.
34. Period of detention suffered by the appellants-accused
Gopeshwar Majhi and Becha @ Tapas Majhi during investigation,
enquiry and trial shall be set off against the substantive sentence
imposed upon them in terms of Section 428 of the Code of Criminal
Procedure.
35. Appellant Nemai Mondal shall be discharged from bail bonds
after six months in terms of section 437A Cr.P.C.
36. Let a copy of this judgment along with the lower court records be
forthwith sent down to the trial court at once.
37. Photostat certified copy of this judgment, if applied for, shall be
made available to the appellants upon completion of all formalities.
I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)
as/sdas/PA
