Calcutta High Court (Appellete Side)
Ranjana Tamang vs The State Of West Bengal on 19 May, 2023
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate side
PRESENT:
HON'BLE JUSTICE CHITTA RANJAN DASH
AND
HON'BLE JUSTICE PARTHA SARATHI SEN
CRA 653 OF 2009
Ranjana Tamang
Vs.
The State of West Bengal
with
CRA 672 of 2009
Madan Thakur
Vs.
The State of West Bengal
For the Appellant : Mr. Ranjan Ray, Adv.
Mr. Ajay Debnath, Adv.
Mr. Pradip Kar, Adv.
Mr. Sujit Saha, Adv.
Mr. Devranjan Das, Adv.
Mrs. Swagata Datta, Adv.
For the State in : Mr. Saswata Gopal Mukherji, PP
CRA 653 of 2009 Ms. Faria Hossain, Adv.
Ms. Sujata Das, Adv.
For the State in : Ms. Zareen N. Khan, Adv.
CRA 672 of 2009 Mr. Ashok Das, Adv.
Heard on : 21.11.2022, 23.11.2022, 20.12.2022,
14.03.2023 & 24.03.2023.
Judgment on : 19.05.2023
CHITTA RANJAN DASH, J.:-
1.
Both these appeals arise out of the Judgement dated 31.07.2009 and order
of sentence dated 01.08.2009 passed by Additional Sessions Judge, Fast Track,
First Court, Siliguri in Sessions Trial No. 13/07 arising out of Sessions Case No.
23(5)07 convicting both the appellants under Section 302, 201 and 34 IPC and
sentencing them thereunder.
2. The spot village is Gyan Jote under Kharibari P.S. in the district of Siliguri.
Ranjana Tamang appellant in CRA 653 of 2009 is the widow of deceased Uddiman
Tamang. Madan Thakur appellant in CRA 672 of 2009 who is a resident of Arjun
Mahal, hamlet of Gyan Jote under Kharibari P.S. is alleged to have extramarital
relationship with Ranjana Tamang and both of them are alleged to have committed
murder of Uddiman Tamang and buried the dead body in the house of Uddiman
Tamang two and half feet below the surface of the room.
2.1. P.W.15, the Inspector of Police attached to Kharibari P.S. is the informant.
On 05.03.2004 he had come to Arjun Mahal in connection with enquiry into
Kharibari P.S. G.D.E. No. 157 dated 04.03.2004 (Exhibit 15) lodged by Madan
Thakur. In course of such enquiry, Chandrika Shah (P.W.10) informed him
(P.W.15) that Uddiman Tamang is missing since about three months and she
(P.W.10) suspects that his (Uddiman's) wife, Ranjana Tamang and Madan Thakur
might have murdered him.
2.2. P.W.15 went to the house of Madan Thakur. He was not there. But Ranjana
Tamang was there in Madan Thakur's house. P.W.15 enquired from her (Ranjana
Tamang) about missing of her husband, Uddiman Tamang and asked her to take
him (P.W.15) and other police officials accompanying him to the place where
Uddiman Tamang (deceased) was residing.
2.3. Ranjana Tamang took them to the spot house. Local villagers also assembled
there. On reaching the spot house at Gyan Jote, P.W.15 smelt foul odour coming
from the room. They entered into the room by opening bamboo door (as described
in the FIR about the door of the spot house). They found surface of the floor to be
uneven and suspected some foul play. On being interrogated by P.W.15, Ranjana
Tamang disclosed that she and Madan Thakur murdered Uddiman Tamang and
buried his dead body in the room below the earth.
2.4. P.W.15 made arrangement for spade etc. from the house of Mangal Bhagat
(P.W.1). The floor was dug and a dead body was found. P.W.15 then informed
S.D.O., Siliguri requesting him to send an Executive Magistrate to be present at
the time of exhuming the dead body. Accordingly, B.D.O. Naxalbari (P.W.14)
reached the spot and the dead body was exhumed. The dead body was identified
by Ranjana Tamang to be that of her husband Uddiman Tamang. Thereafter
P.W.15 prepared the written complaint and sent the same to O.C in charge of
Kharibari P.S. to lodge FIR against the accused persons under Sections 302, 201
and 34 IPC. The written complaint was sent through constable, Biswajit Das (not
examined). P.W.15 thereafter directed S.I., Bijoy Tamang, P.W.16 to take up
investigation of the case.
3. On the basis of the report lodged by P.W.15, at first U.D. Case No.7 of 2004
was registered and thereafter Kharibari P.S. Case No. 18 of 2004 under Sections
302, 201 and 34 IPC was registered. P.W.16 on the instruction of P.W.15 took up
investigation.
3.1. In course of investigation he (P.W.16) examined the witnesses, made
incriminating seizures including the hammer (the alleged weapon of offence),
controlled earth and wearing apparel of the deceased etc. sent the dead body for
post-mortem through P.W.2 (Constable) and also seized the visra etc. after post-
mortem on production by P.W.2.
3.2. In course of investigation it also came to light that Baburam Tamang, son of
Uddiman Tamang at about 3:30 P.M. on 12.12.2003 had lodged GDE No. 448
dated 12.12.2003 regarding missing of his father Uddiman Tamang since about 15
days vide Exhibit-13. It also came to light that on 30.11.2003 on the basis of
report of S.I., Srimanta Barman (P.W.9), GDE No. 1163 dated 30.11.2003 was
registered at about 11:35 P.M. on the allegation that Ranjana Tamang and Madan
Thakur were making nuisance by showing their bodies and kissing each other as a
result of which local people were very much annoyed over their activities. GDE No.
157 dated 04.03.2004 vide Exhibit 15 was also lodged by Madan Thakur in
Kharibari P.S. praying for lodging of FIR against one Matla Thapa and it was also
mentioned in the said GD Entry that Madan Thakur and Ranjana Tamang have
married on 24.11.2003 under Hindu Customs & Rites. It also came to light during
investigation that Ranjana Tamang was the second wife of deceased Uddiman
Tamang and Baburam Tamang who had lodged missing report vide Exhibit 13 was
Uddiman's major son through his first wife. In course of investigation both the
appellants were arrested and forwarded to Court in custody. On completion of
investigation P.W.16 filed charge-sheet against both the appellants for offence
under Section 302, 201 and 34 IPC.
4. Prosecution has examined 16 witnesses to prove the charge against the
appellants. As introduced supra P.W.15 is the informant, P.W.s 1, 5, 7, 8 and 13
are co-villagers of deceased Uddiman, P.W.s 6 and 10 are villagers of adjacent
hamlet. P.W.12 is the Vice-President of Siliguri Mahakuma Parishad who on
05.03.2004 was present in course of preparation of inquest report by the
Executive Magistrate as well as by the I.O. (P.W.16). P.W.14 is the Executive
Magistrate i.e. B.D.O., Naxalbari who held inquest over the dead body after it was
exhumed in his presence. P.W.11 is the Demonstrator, department of F.S.M. North
Bengal Medical College and Hospital who held post-mortem over the dead body of
the deceased. P.W.2 is the constable who took the dead body for post-mortem on
being challaned by I.O. (P.W.16). P.W.9 is the S.I. of Police who along with force
had been to the spot village Gyan Jote on a raid on receiving secret information
that a man and a woman were confined by the local people in a house at Gyan
Jote. He lodged the GDE vide Exhibit 14 dated 30.11.2003. P.W.3 is the S.I. of
Police who had lodged the GDE dated 30.11.2003 vide Exhibit 14 and a case
under Section 290 IPC was initiated against Ranjana Tamang and Madan Thakur.
P.W.4 is the S.I. of Police who received the information from Baburam Tamang,
son of deceased Uddiman Tamang about missing of Uddiman Tamang and made
GDE dated 12.12.2003 vide Exhibit 13. P.W.16 is the I.O.
Defence plea is one of complete denial and both the appellants have pleaded
innocence.
5. Learned Court below also framed charge under Section 302, 201 and 34 IPC
against both the appellants and returned the finding of guilt against them on the
basis of circumstantial evidence held to have been proved during trial. The
circumstances on which learned Trial Court has relied on are as follows:
"The case rests entirely on circumstantial evidence and
circumstances relied upon by the prosecution are as
follows:-
(i) That the accused persons had extra marital
relationship.
(ii) That the accused Madan Thakur used to visit the house
of Ranjana Tamang since last four years, prior to the
incident and developed extra marital love affair with
accused Ranjana Tamang.
(iii) Uddiman Tamang one fine morning was found to be
missing from his house.
(iv) Accused Madan Thakur found in obscene and
compromising condition with Ranjana Tamang in her
house just following the missing of Uddiman Tamang.
(v) Madan Thakur caught by the local people in
compromising condition with Ranjana and both of them
were handed over to the police.
vi) Ranjana Tamang told P.W.1. Mangal Bhagat that
Uddiman went to Bhusivita after taking tea from the
house.
(vii) Being interrogated and chased by the villagers, Madan
Thakur gave false information that he would bring back
Uddiman after one week and accused Madan Thakur
vanished in the blue thereafter and came back after
three months in his house in his village.
(viii) Accused Ranjana started living with accused Madan
Thakur going to his house.
(ix) O.C. of Kharibari P.S. went to Arjun Mahal to enquire
into the Kharibari P.S. G.D.E. No. 157 dated 04/03/04.
(x) Chandrika Shah informed him that Uddiman was
missing for about three months and expressed his
suspicion that his wife Ranjana and Madan might have
murdered Uddiman Tamang.
(xi) O.C. of Kharibari met accused Ranjana Tamang in the
house of accused Madan Thakur.
(xii) Being interrogated, she accompanied O.C. Bijan Kumar
Dey to the house of Uddiman Tamang.
(xiii) O.C. Found the floor of the room of Uddiman as uneven
and irregular.
(xiv) As per the words of Ranjana, the floor of the room of
Uddiman was dug and the dead body of Uddiman
Tamang was discovered from the earthen floor of his
room.
(xv) That she made extra judicial confession of her guilt
before the villagers and the Police Officer and other
Police forces.
(xvi) Police also seized hammer and other articles from the
P.O.
(xvii) That accused Madan Thakur absconded thereafter.
Holding that the aforesaid circumstances have been proved learned Trial
Court has shifted the onus to the appellants under Section 106 of the Evidence
Act.
6. Mr. Ranjan Ray, learned Counsel for the appellant submits that the
circumstances, relied on by learned Trial Court, do not form a complete chain
unerringly pointing to the guilt of the appellants. Further it is submitted that
appellant Madan Thakur has been implicated only on the basis of alleged
confession of appellant Ranjana Tamang before the police and villagers. It is
vehemently urged that the impugned Judgement and order of sentence be set aside
and the appeal be allowed.
Ms. Faria Hossain being assisted by Ms. Sujata Das, learned Counsel
appearing for the State in one appeal and Ms. Zareen N. Khan being assisted by
Mr. Ashok Das, learned Counses for the State appearing in another appeal on the
other hand supports the impugned Judgement and submits that the appeal being
devoid of any merit be dismissed.
7. Having heard learned Counsel for the parties we propose to make some facts
clear before proceeding to discuss the circumstances relied on by learned Trial
Court. According to P.W.10, Chandrika Shah, deceased Uddiman Tamang came to
reside in Gyan Jote (spot village) about 10 years back (i.e. from the date of his
deposition on 10th February, 2009). According to P.W.6 who is a resident of
adjacent village Telenga Jote, deceased Uddiman Tamang was a 'Pherrywala'
(wandering/roaming vendor selling different items) by avocation. As introduced
supra P.W.1 is neighbour of deceased Uddiman Tamang. P.W.5 is also a neighbour
of deceased Uddiman. P.W. 13 is also a co-villager of deceased Uddiman Tamang.
P.W.s 6 and 10 are villagers of adjacent village. Similarly P.W.7 resides adjacent to
the house of deceased Uddiman Tamang and P.W.8 is also a co-villager of deceased
Uddiman Tamang. None of the aforesaid witness had any knowledge that Uddiman
had a first wife and he had a son named Baburam Tamang from his first wife.
P.W.1 has testified that deceased Uddiman Tamang and appellant Ranjana
Tamang had three children; two of them are sons and one is daughter; the eldest
son was 15/16 years old at the time of occurrence; the second son was 12/13
years old and the youngest daughter was three and half years old at the time of
occurrence. It is his further evidence that all of them were residing in the same
house which has a single room.
7.1. P.W.5 whose house is situated at one quarter kilometre from the house of
deceased Uddiman Tamang in his cross-examination has testified that deceased
Uddiman Tamang has three children. The eldest son is 7 years old; accused
Ranjana Tamang, Uddiman Tamang and three children used to live together in the
spot house. P.W.6 who is a resident of adjacent village Telenga Jote in his cross-
examination has testified that deceased Uddiman Tamang and accused Ranjana
Tamang have three children; the eldest son of Uddiman Tamang was not living
with them at the time of his death. P.W.7 whose house is situated adjacent to the
house of Uddiman Tamang has testified that Uddiman Tamang and Ranjana
Tamang have three children; his eldest son was ten years old; Ranjan Tamang and
Uddiman Tamang and their three children used to reside in the spot house. P.W.8
who is a co-villager of deceased Uddiman Tamang has also testified that Uddiman
Tamang and Ranjana Tamang have three children; Uddiman Tamang, Ranjana
Tamang and their three children used to reside in the same house. P.W.10
Chandrika Shah, on whose report P.W.15 acted in promptitude and recovered the
dead body from the dwelling house of Uddiman Tamang allegedly at the instance of
appellant Ranjana Tamang has also testified that Uddiman Tamang was living in
his house with his wife and children. All the witnesses have also testified that they
have no knowledge how Uddiman died and who committed his murder.
8. From the evidence of the aforesaid witnesses it is clear that none has any
direct knowledge as to how Uddiman Tamang died and who did his death. It is also
clear from the evidence of the aforesaid witnesses that appellant Madan Thakur
was an agent of Sahara and he was going to different houses in different villages
for collection of subscription. P.W.7 has also testified that Madan Thakur was also
coming to her house for collection of subscription. Same stand has been taken by
appellant Madan Thakur in his statement recorded under Section 313 Cr.P.C.
Appellant Ranajana Tamang in her statement recorded under Section 313 Cr.P.C.
has also stated that Madan Thakur was coming to her house for collection of
subscription.
8.1. From the aforesaid prevaricating evidence of the witnesses, it is clear that
none of the witness had any personal and direct knowledge about the family of
deceased Uddiman Tamang except the fact that he was blessed with three children.
None is consistent about the age of the three children. P.W.1 who is a neighbour,
in his cross-examination testified that the eldest son and second child of Uddiman
Tamang and Ranjana Tamang reside elsewhere and P.W.6 has testified that eldest
son of Uddiman Tamang was not living with him at the time of his death.
8.2. The evidence regarding this aspect being inconsistent, we are of the
considered view that none of the witness had any personal knowledge or special
knowledge about the family of deceased Uddiman Tamang or about appellant
Ranjana Tamang.
9. With the aforesaid background in mind and the principle of "Panchsheel" as
enunciated by Hon'ble Supreme Court in the case of Sharad Birdhi Chand Sarda
Vs. State of Maharashtra (AIR 1984 SC 1622) along with the principle of proving
each circumstance relied on by prosecution as primary fact as enunciated in the
case of M.G. Agarwal Vs. State of Maharashtra (AIR 1963 SC 200) we propose to
re-appreciate the circumstances relied on by the prosecution and held to have been
proved by learned Trial Court. We feel persuaded to say here that some of the
circumstances relied on by learned Trial Court are mere repetitions, some are
innocuous and inconsequential and some are supported by no evidence.
9.1. Circumstance nos. (i) and (ii) are taken up together first for consideration.
Those are:
(i) That the accused persons had extra marital
relationship.
(ii) That the accused Madan Thakur used to visit the house
of Ranjana Tamang since last four years, prior to the
incident and developed extra marital love affair with
accused Ranjana Tamang.
So far as the aforesaid circumstances are concerned, it is P.W.1 who alone
has testified that appellant Madan Thakur used to visit the house of Uddiman
Tamang since last four years before the incident. Except the aforesaid bald and
uncorroborated testimony, P.W.1 has not testified to the effect that they had any
relationship either illicit or extra marital. There is nothing on record also to show
that Uddiman Tamang had ever objected to visit of appellant Madan Thakur to his
house. Rather there is evidence of witnesses to the effect that Madan Thakur being
an agent of Sahara was visiting the houses of different persons in the locality
including the house of P.W.7 for collection of subscription and appellant Ranjana
Tamang in her statement under Section 313 Cr.P.C. has also testified that Madan
Thakur was coming to their house for collection of subscription for Sahara. On the
lone testimony of P.W.1 therefore the aforesaid two circumstances cannot be held
to have been proved to the extent that there was extra marital relationship between
both the appellants since four years and for that appellant Madan Thakur used to
visit the house of Ranjana Tamang since last four years. It can only be held that
both the appellants were known to each other before the incident.
9.2. Thereafter circumstance nos. (iv) and (v) are taken together for consideration.
Those are:
(iv) Accused Madan Thakur found in obscene and
compromising condition with Ranjana Tamang in her
house just following the missing of Uddiman Tamang.
(v) Madan Thakur caught by the local people in
compromising condition with Ranjana and both of them
were handed over to the police.
So far as the aforesaid circumstances are concerned all the witnesses namely
P.W.1, P.W.6 and P.W. 8 have testified parrot like that they found appellant Madan
Thakur and appellant Ranjana Tamang in compromising position in the spot house
(house of Uddiman Tamang). P.W.1 has testified that such incident happened after
one day of the missing of Uddiman Tamang. P.W.10 though has not stated
anything about finding appellant Madan Thakur and appellant Ranjana Tamang in
compromising position has testified that on one occasion police arrested Ranjana
Tamang and Madan Thakur at about 8 P.M. after 5 days of the missing of Uddiman
Tamang from his house. P.W.9 is the police officer who along with force had been
to the spot village i.e. Gyan Jote for a raid on receiving secret information that a
man and woman have been confined by the local people at Gyan Jote. P.W.9 has
further testified that he arrested both Ranjana Tamang and Madan Thakur from in
front of the house of Uddiman Tamang and on that day he made GDE vide Exhibit
14. He, however, was not able to say name of any particular person who informed
him about the alleged illicit relationship of Ranjana Tamang and Madan Thakur.
From the evidence of the aforesaid witnesses, it is clear that no one has seen both
Madan Thakur and Ranjana Tamang in objectionable or compromising position.
They suspected something and they confined them in the house and reported the
matter to police. The Police Officer (P.W.9) has clearly testified that he arrested
Ranjana Tamang and Madan Thakur from in front of the house in question being
pressurised by the local people. In the G.D.E. (Exhibit-14), it is clearly mentioned
that two minor children of Ranjana Tamang were also there with her. None of the
witness has testified about presence of the children along with Ranjanan Tamang.
Whatever be the intensity of relationship of a woman with a man, a woman,
especially in a rural area cannot throw all her shames to wind to come to a
compromising position even with her husband to the full sight of her children. The
witnesses examined in the case have testified that after deceased Uddiman went
missing, Ranjana Tamang went to live with Madan Thakur. According to P.W.1 this
incident happened after one day of missing of Uddiman. P.W.10 has testified that
this incident happened after five days of missing of Uddiman. There is however no
definite date when Uddiman went missing and when Ranjana Tamang left the
house of Uddiman and went to live with Madan Thakur.
9.3. We are of the view that it is not good on anybody's part to judge a person by
forming an opinion on some unseen or unheard thing. But in our society and
especially in rural area people have a tendency to be judgemental especially
regarding extra marital relationship or illicit relationship etc. more on hearsay then
direct knowledge. We feel persuaded to say here that one should walk into the life
of another rather softly because some wounds are not visible. Taking into
consideration the discussion supra we are of the view that these circumstances i.e.
circumstance nos. (iv) and (v) are proved to the extent that on the agitation of the
local people as testified by P.W.9 he arrested appellant Madan Thakur and
appellant Ranjana Tamang and made GDE vide Exhibit 14.
9.4. Coming to the circumstance nos. (iii), (vi) and (vii), those are as follows:
(iii) Uddiman Tamang one fine morning was found to be
missing from his house.
(vi) Ranjana Tamang told P.W.1. Mangal Bhagat that
Uddiman went to Bhusivita after taking tea from the
house.
(vii) Being interrogated and chased by the villagers, Madan
Thakur gave false information that he would bring back
Uddiman after one week and accused Madan Thakur
vanished in the blue thereafter and came back after
three months in his house in his village
So far as circumstance nos. (iii), (vi) and (vii) are concerned all are based on
evidence of Mangal Bhagat (P.W.1). It is found from the evidence of P.W.1 that on
the morning of Thursday he asked appellant Ranjana Tamang regarding
whereabouts of Uddiman Tamang and Ranjana Tamang told him that Uddiman
has gone to Bhusivita after taking tea from the house. He (P.W.1) has further
testified that after about one week of handing over Ranjana Tamang and Madan
Thakur to police i.e. P.W.9 again appellant Madan Thakur was charged and they
(villagers) told him to disclose regarding whereabouts of Uddiman Tamang and also
asked him to bring Uddiman Tamang back to his house. Appellant Madan Thakur
took one week time and after that he fled away and came back after three months.
This evidence of P.W.1 is, however, not corroborated by any of the witnesses who
are co-villagers and testified to be known to deceased and the appellants. In view of
such fact these circumstances i.e. circumstance nos. (iii), (vi) and (vii) are held to
be not proved on the basis of uncorroborated testimony of P.W.1, especially in view
of other suspicious features in the prosecution case to be discussed at a later
stage.
9.5. Circumstance nos. (viii) and (xi) are as follows:
(viii) Accused Ranjana started living with accused Madan
Thakur going to his house.
(xi) O.C. of Kharibari met accused Ranjana Tamang in the
house of accused Madan Thakur.
So far as circumstance no. (viii) is concerned, it is the evidence of all the
witnesses that on the date when the dead body was exhumed from the spot house
appellant Ranjana Tamang was there in the house of appellant Madan Thakur. The
witnesses have further testified that after Uddiman went missing, Ranjana Tamang
started living with Madan Thakur. The G.D.E. (Exhibit-15) lodged by Madan
Thakur on 04.03.2004 also shows that Madan Thakur and Ranjana Tamang had
married on 24.11.2003 according to Hindu Rites and Customs. P.W.15 who had
come for enquiry in connection with Kharibari P.S. GDE No. 157 dated 04.03.2004
(Exhibit-15) also met appellant Ranjana Tamang in the house of the appellant
Madan Thakur and at that time Madan Thakur was absent. Circumstance nos.
(viii) and (xi) are accordingly held to have been proved.
9.6. Circumstance nos. (ix) and (x) which are as follows are inconsequential:
(ix) O.C. of Kharibari P.S. went to Arjun Mahal to enquire
into the Kharibari P.S. G.D.E. No. 157 dated 04/03/04.
(x) Chandrika Shah informed him that Uddiman was missing
for about three months and expressed his suspicion that
his wife Ranjana and Madan might have murdered
Uddiman Tamang
9.7. Circumstance nos. (xii) and (xiv) are as follows:
(xii) Being interrogated, she accompanied O.C. Bijan Kumar
Dey to the house of Uddiman Tamang.
(xiv) As per the words of Ranjana, the floor of the room of
Uddiman was dug and the dead body of Uddiman Tamang
was discovered from the earthen floor of his room.
P.W. 15 and 16 have testified that appellant Ranjana Tamang took the police
to the spot house i.e. house of Uddiman Tamang where she was also living earlier
and it is the evidence of the I.O. (P.W.16) and other witnesses that as per the words
of Ranjana Tamang the dead body of Uddiman Tamang was exhumed from one
room of the spot house. So far as circumstance no. (xii) is concerned, P.W.7 has
testified in her cross-examination that she showed the house of Uddiman Tamang
to the police. There is also discrepancy in the evidence of the witnesses to the effect
that at the instance of appellant Ranjana Tamang, the spot where the dead body
had been buried was found and at her instance that spot was dug. From the
evidence of P.W.15 it is found that bad smell was coming from the room and the
surface of the room was uneven creating suspicion in his mind. In view of such fact
we are constrained to hold that circumstance nos. (xii) and (xiv) have been proved
to the extent that appellant Ranjana Tamang accompanied P.W.15 to the spot
house on his (P.W.15's) asking and at the spot house a dead body was dug out
from beneath the earth.
9.8. Circumstance nos. (xiii) and (xvi) are inconsequential as incriminating
circumstance inasmuch as the hammer in question was not sent to the medical
officer who conducted post-mortem nor it was sent for chemical examination or for
finding of finger print of the assailant on its handle. Circumstance no. (xvii) is also
of no avail inasmuch as there is no evidence to show that appellant Madan Thakur
had absconded after recovery of dead body rather there is evidence to show that
P.W.16 arrested Madan Thakur after recovery of the dead body.
9.9. Circumstance no. (xv) is the alleged extra judicial confession of her guilt by
appellant Ranjana Tamang before the villagers and the police officer and other
police officials. P.W.15 has testified that on being interrogated after arrival of the
Magistrate appellant Ranjana Tamang confessed to have killed Uddiman Tamang
along with appellant Madan Thakur and buried the dead body under the floor of
the room. She also confessed that they hit Uddiman Tamang on his head by
hammer and then strangulated him as Uddiman was little drunk. P.W.14 the
Executive Magistrate is, however, completely silent about such extra judicial
confession made by appellant Ranjana Tamang.
To top it all the alleged confession being a confession to a police officer is hit
by Section 25 of the Evidence Act though all the independent witnesses are very
vocal about such confession of appellant Ranjana Tamang before the police.
10. Taking into consideration the aforesaid facts the following circumstances are
had to have been proved:
(i) Appellant Madan Thakur and appellant Ranjana
Tamang were arrested by the police on one occasion
before 05.03.2004 by P.W.9 on being pressurised by
agitating villagers;
(ii) Uddiman Tamang was missing from his house;
(iii) Appellant Ranjana Tamang was living with appellant
Madan Thakur in his house on 05.03.2004 when the
dead body was recovered from the spot house or even
before that;
(iv) Appellant Ranjana Tamang accompanied P.W.15 to the
spot house and a dead body was exhumed from the
room of the spot house.
11. We have to find out whether from the aforesaid proved circumstances
inference of guilt of the appellants can be drawn and whether the aforesaid
circumstances which according to us are proved constitute a complete chain
unerringly pointing to the guilt of the appellants.
12. Before answering the aforesaid questions we feel persuaded to discuss here
some suspicious features in the evidence on record. P.W.s 15 and 16 (I.O.) have
testified that appellant Ranjana Tamang identified the dead body of Uddiman
Tamang after it was dug out from the earth in the spot house. None of the witness
has, however, specifically identified the dead body recovered from the spot house to
be that of Uddiman Tamang. Some of the witnesses have testified that dead body of
Uddiman Tamang was dug out but they have not specifically identified the dead
body with specific marks of identification. Two circumstances had set the minds of
the witnesses to testify without being specific that it was the dead body of
Uddiman, which was dug out. Those circumstances are:
(i) Uddiman was missing;
(ii) Ranjana Tamang was living with Madan Thakur.
These two circumstances had moulded their mind to the extent of a belief
that dead body of Uddiman was dug out and Ranjana Tamang along with Madan
Thakur has committed the murder of Uddiman.
12.1. P.W.1 who is the neighbour of deceased Uddiman Tamang has testified that
he did not see the police digging the floor of the room of Uddiman Tamang; he
however saw the dead body of Uddiman; it was apparent that the dead body was of
Uddiman Tamang, when he saw it. Such evidence of P.W.1 cannot be held to be a
clear identification of the dead body of deceased. He has also not testified that
appellant Ranjana Tamang happened to identify the dead body of Uddiman. P.W.5
beside being a co-villager is a witness to the inquest over the dead body. P.W.5 who
is also a witness to inquest has not testified that appellant Ranajan Tamang
identified the dead body of Uddiman. He has also not testified specifically that the
dead body was that of Uddiman though in his evidence there is mention about
recovery of the dead body of Uddiman. P.W.6 who is also a witness to inquest is
however a chance witness. He was returning from the market and finding
gathering near the house of appellant Ranjana Tamang he went there and was also
present when the dead body was dug out from the room of Ranjana Tamang. He
has also not testified that the dead body was identified by Ranjana Tamang as that
of Uddiman Tamang. He has also not specifically testified that he identified the
dead body as that of Uddiman. He had only made mention about recovery of dead
body of Uddiman. P.W.7 who is neighbour of deceased Uddiman Tamang has also
stated nothing specific about identification of the dead body of Uddiman Tamang in
particular except brushing reference to recovery of dead body of Uddiman Tamang.
She has also not testified to the effect that it was Ranjana Tamang who identified
the dead body of the deceased. P.W.8 who is another co-villager of the deceased is
also silent about identification of the dead body and in his cross-examination he
has specifically testified that he did not go near to the dead body as bad smell was
coming. P.W.13 who is also a co-villager and a witness to inquest has also testified
in his cross-examination that he did not see the dead body. The appellant Ranjana
Tamang in her statement under Section 313 Cr.P.C. in answer to question no.44
has stated that she did not see the dead body as she was taken to the P.S., in
answer to question no.51 she has stated that yes Uddiman's dead body was found.
To the specific question put to her in question no.53 that she identified the dead
body to be that of her husband Uddiman Tamang, she has answered that the dead
body was not recovered in front of her and this allegation is false. P.W.11 the
Medical Officer who conducted post-mortem has testified that the dead body was
identified to him by Constable no. 1544 Gouranga Roy of Kharibari P.S. He has
further testified thus - on P.M. examination, he found the dead body partially
decomposed with adipocere change over the face, neck, chest wall and buttocks
with mummification of abdomen wall, lower limbs dark brown in colour.
The Medical word 'adipocere change' means a waxy substance consisting
chiefly of fatty acids and calcium soaps that is formed during decomposition of
dead body fat in moist or wet anaerobic conditions. In such a stage, when mud
also must be sticking to the dead body as it was dug out from earth, identification
becomes difficult, if the person identifying does not know closely the person whose
dead body is identified.
12.2. From the aforesaid discussion it is found that none of the independent
witness has testified that appellant Ranjana Tamang identified the dead body of
the deceased Uddiman Tamang to be that of Uddiman Tamang. Most of the
independent witnesses have not gone near the dead body for some reason or other.
They only have testified that dead body of Uddiman Tamang was dug out as it was
deep in their mind that it is Uddiman Tamang whose dead body has been buried in
the spot house. The Executive Magistrate (P.W.14) has not whispered a word about
the identification of dead body by appellant Ranjana Tamang. The inquest report,
dead body challan etc. is silent about identification of the dead body by Ranjana
Tamang or any other person. The Medical Officer (P.W.11) has testified that the
dead body was identified to him by Constable No. 1544 Gouranga Roy of Kharibari
P.S. Said Constable Gouranga Roy has been examined as P.W.2. In his cross-
examination P.W.2, Gouranga Roy has testified that he was instructed from the
P.S. to take the dead body from Gyan Jote to the NBMCH. He cannot say whose
dead body it was. The dead body was being dug out from mud. He wrapped it and
took it to the NBMCH. The dead body was decomposed but it was a male dead
body.
12.3. From the aforesaid evidence we are in doubt as to whose dead body was dug
out from the spot house. Was it the dead body of Uddiman Tamang or Uddiman
has the possibility of returning alive even after 30 years, if the dead body was of
any other person. It might have so happened that some person/persons in inimical
terms with Uddiman Tamang might have murdered Uddiman and buried his dead
body in his own house which was found to be abandoned. There being no proper
identification of the dead body at any stage. We are constrained to entertain a
genuine doubt about the fact as to whether the dead body was that of missing
Uddiman Tamang and whether Uddiman Tamang was at all murdered or the dead
body was of any other person.
12.4. We feel persuaded to entertain such a genuine doubt in view of the fact that
the spot house is a thatched house and it is fitted with only a bamboo door as
reflected by P.W.15 in the written complaint. And a room fitted with a bamboo door
can give access to any person who could have come and buried the dead body of
any other person there after Ranjana Tamang left the spot house and it is also the
consistent deposition of the witnesses that Ranjana Tamang went to live with
Madan Thakur after missing of deceased Uddiman Tamang.
13. Another peculiarity of the case is that Baburam Tamang, son of alleged
deceased Uddiman Tamang filed a report vide Exhibit 13 on 12.12.2003 stating
therein that since 15 days his father Uddiman Tamang is missing. Exhibit-13
being a part of record, we perused the same and it is reported therein that his
(Baburam's) step mother left their house with unknown person and after that his
father was missing. Though Exhibit-13 was registered vide GDE No. 448 dated
12.12.2003 no enquiry was conducted thereon. If we calculate 15 days back from
12.12.2003 it goes to show that alleged deceased Uddiman Tamang was missing
from 26/27 of November, 2003. Here comes to light the GDE No. 157 dated
04.03.2004 which was lodged by appellant Madan Thakur in Kharibari P.S.
alleging some overt act in respect of appellant Ranjana Tamang by one Matla
Thapa. In the said entry Madan Thakur has specifically asserted that he married
Ranjana Tamang on 24.11.2003 as per Hindu Customs & Rites. If the aforesaid
GDE No. 157 dated 04.03.2004 (Exhibit-15) is read in conjunction with GDE No.
448 dated 12.12.2003 (Exhibit-13) it is clear that Baburam Tamang son of
Uddiman Tamang is true to the extent that after his step mother left the house
with some unknown person his father was missing.
14. The police has not at all enquired into these two vital GDE vide Exhibit 13
and 15. P.W.s 15 and 16 have also admitted that they have not examined either
first wife of Uddiman Tamang or Baburam Tamang, son of alleged deceased
Uddiman Tamang. Had they been examined some relevant fact might have come on
record. This is also one of suspicious aspect in the prosecution case.
15. With the aforesaid suspicious features in the prosecution case we shall now
proceed to examine the circumstances proved in the case.
16. The circumstances proved in the present case as enumerated in paragraph
10 supra are:
(i) Appellant Madan Thakur and appellant Ranjana
Tamang were arrested by the police on one occasion
before 05.03.2004 by P.W.9 on being pressurised by
agitating villagers;
(ii) Uddiman Tamang was missing from his house;
(iii) Appellant Ranjana Tamang was living with appellant
Madan Thakur in his house on 05.03.2004 when the
dead body was recovered from the spot house or even
before that;
(iv) Appellant Ranjana Tamang accompanied P.W.15 to the
spot house and a dead body was exhumed from the
room of the spot house.
17. We have already discussed in detail circumstance nos. (i) and (iv) supra in
detail. So far as circumstance no.(i) is concerned, P.W.9 had arrested Ranjana
Tamang and Madan Thakur from front of the house of Uddiman Tamang at about
8 p.m. on 30.11.2003 as some villagers had detained them there and put pressure
on P.W.9 to arrest them. There is allegation that both Ranjana Tamang and Madan
Thakur were found in compromising position in the house of Uddiman Tamang.
But such allegation is held to have not been proved. This circumstance therefore,
no more alive to be an incriminating circumstance any more. So far as
circumstance no.(iv) is concerned, on the asking of P.W.15, Ranjana Tamang
accompanied him (P.W.15) where she and Uddiman Tamang were once living.
P.W.7 has testified that she showed the house of Uddiman Tamang to the police.
There is nothing incriminating also in this circumstance inasmuch as no
incriminating behaviour or act has been attributed to Ranjana Tamang so far as
murder of Uddiman is concerned.
17.1. So far as circumstance nos. (ii) and (iii) supra are concerned, it is found on
record from the evidence of witnesses that by the time both Ranjana Tamang and
Madan Thakur were arrested Uddiman Tamang was already missing. It is evident
from the evidence of P.W.1 that appellant Madan Thakur was coming to the house
of appellant Ranjana Tamang since four years. They might have developed some
affair or relationship between them and they might have thought to live together
leaving Uddiman and such practice in rural area is not uncommon. A dead body
was found to have been buried in the spot house where Uddiman Tamang and
Ranjana Tamang were once living. But there is no evidence to the effect that the
dead body was identified to be that of Uddiman Tamang. If we take all the aforesaid
circumstances together and try to infer about the guilt of the appellants, we find
that there are many missing links which rather point towards the innocence of the
appellants than to their guilt.
17.2. Only because appellant Ranjana Tamang and appellant Madan Thakur
decided to marry or live together, Ranjana Tamang leaving her husband Uddiman
Tamang cannot justify any motive on their part to kill Uddiman Tamang inasmuch
as there was no remedy for Uddiman to bring back Ranjana Tamang as it is a
common practice in rural area to leave one spouse to espouse another for some ill-
feeling or misunderstanding between the spouses. Then there is materials to show
that Uddiman Tamang left the house after only Ranjana Tamang eloped with some
unknown person who is none other than appellant Madan Thakur. If Uddiman
Tamang left the house it was none of the business of both the appellants to find
him out, kill him and bury him in the very said house where Uddiman Tamang was
once living.
18. We are, therefore, constrained to hold that in view of the suspicious
circumstances in the prosecution case as discussed supra, the appellants are
entitled to get benefit of doubt. Accordingly, the impugned judgement and order of
sentence are set aside. Each of the appellant in both the appeals are acquitted of
the charge. Both the appeals are accordingly allowed. Both the appellants are
directed to be released forthwith, if their detention is not required in any other
case.
19. The Trial Court record along with a copy of the judgement be sent down to
the Trial Court.
20. Department is directed to send an advance copy of the judgement to
Secretary, District Legal Services Authority, Siliguri to take immediate steps for
release of the appellants from jail by making necessary enquiry regarding the fact,
at present which correctional home they are lodged in.
21. Pronounced in open Court on this day i.e. 19 th day of May, 2023.
I agree.
(Partha Sarathi Sen, J.) (Chitta Ranjan Dash, J.)
