Calcutta High Court (Appellete Side)
Moinuddin Sk & Anr vs State Of West Bengal on 22 September, 2023
Item No. 57
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 Gupa
C.R.A. 234 of 2001
Moinuddin Sk & Anr.
Vs.
State of West Bengal
For the Appellant : Mr. Dipankar Dhar, Advocate
Mr. Rudra Dhar, Advocate
Amicus Curiae : Mr. Bibaswan Bhattacharya, Advocate
For the State : Mr. Sudip Ghosh, Advocate
Mr. Bitasok Banerjee, Advocate
Heard on : 21.9.2023 and 22.9.2023.
Judgment on : 22.9.2023.
Joymalya Bagchi, J.:-
1.
Appellants have assailed the judgment and order dated
31.01.2001 and 02.04.2001 passed by the learned Additional Sessions
Judge 2nd Court, Murshidabad in Sessions Trial No. 8 of August of 2000
arising out of Sessions Serial No. 130 of 2000 convicting the appellants for
commission of offence punishable under Sections 302/201/34 of the
Indian Penal Code and sentencing them to suffer imprisonment for life for
the offence punishable under Sections 302/34 IPC and to suffer rigorous
imprisonment for seven years and to pay a fine of Rs. 5,000/- each, in
default, to suffer rigorous imprisonment for one year more for the offence
punishable under Section 201 IPC; both the sentences to run
concurrently.
Prosecution case:-
2. Prosecution case, as alleged, against the appellants and one
Kalam Sk. is to the effect that one Sufera Khatoon (the deceased) was
married to Abdul Kalam on 3rd Jaistha i.e. 18th May 1986. On 28th Sravan
i.e. 14th August, 1986, Sufera came to her father-in-law's house to
celebrate Eid. Her husband Kalam was also invited. On 3rd Bhadra i.e. 20th
August, 1986 Kalam and his wife left in the evening. Thereafter, Sufera
was missing. Her father Abdus Sattar (PW 1) searched for his daughter
everywhere but could not find her.
3. He lodged missing diary. On 12th Bhadra i.e. 29th August, 1986
in the morning Raugila Bibi (PW 6) saw a female body floating in the water.
The body was identified as that of Sufera. An unnatural death case was
initiated.
4. On 16th Bhadra i.e 3rd September, 1986, Baidujjaman (PW 3) and
Nurul Seikh (PW 8) disclosed they had seen the couple along with the
appellants moving through the road towards the field. They were carrying
torch light. On query they stated they were going for a cinema. Thereafter,
the villagers assembled and a salish was held. In the salish Kalam as well
as the appellants admitted their guilt. On the next day, written complaint
was lodged by PW 1 resulting in registration of Bhagawangola Police
Station Case no. 02 of 1986 dated 04.09.1986 under sections 302/201/34
IPC.
5. During investigation Moinuddin made an exculpatory confession
before the Judicial Magistrate (PW 12) implicating Kalam and Najimuddin
in the murder.
6. In conclusion of investigation, charge sheet was filed against the
appellants and the said Kalam.
7. During the pendency of the proceeding Kalam died and charges
were framed against the appellants under Sections 302/201/34 IPC. In
course of trial, prosecution examined 13 witnesses and exhibited a number
of documents to prove its case. Defence of the appellants was one of
innocence and false implication.
8. In conclusion of trial, learned trial Judge by the judgment and
order dated 31.01.2001 and 02.04.2001 convicted and sentenced the
appellants, as aforesaid.
Evidence on record:-
9. PW 1 (Abdus Sattar) is the father of the victim and the de-facto
complainant. He stated his daughter was married to Abdul Kalam. After
two months he brought her back to his house. In the month of Bhadra,
Kamal came to their house. He stayed for the night. In the evening on the
next day around 7 P.M. the couple left to see a movie. Thereafter his
daughter went missing. Nurul (PW 8) and Baidujjaman (PW 3) stated they
had seen his daughter and son-in-law on the road. He lodged general
diary. A co-villager (PW 6) noticed the dead body of a lady lying at Bar
Pukur. She went there and identified the body. Police brought out the body
from the pond. He lodged written complaint scribed by PW 2. He put LTI on
the written complaint.
10. PW 3 (Baidujjaman) disclosed one night at 8/9 P.M. Sufera and
her husband were going down the road. On enquiry Kalam stated that they
were going to see a movie. After sometime he had also seen the appellants.
They also stated they were going to see a movie. Subsequently the dead
body was recovered. A salish was held and he disclosed these facts in the
salish. During cross-examination, he stated he had seen the appellants
2/3 minutes after Kalam and his wife had gone down the road.
11. PW 6 (Raugila Bibi) deposed she saw dead body of a lady wearing
a green coloured saree floating in the pond at Bar pukur. She became
frightened and called for help. Police came and recovered the body. The
body was that of Sufera.
12. PW 4 (Nurshed Ali), PW 5 (Samsur Ali) and PW 7 (Entaj Sk.) are
villagers. They stated the body of the victim was recovered from Bar pukur.
Nurul Seikh and Baidujjaman stated they had seen the appellants with the
lady. On that day in the evening Abdul Kalam stated he had killed his wife
with the help of the appellants. Thereafter the appellants also confessed
their guilt.
13. During investigation Moinuddin made a confessional statement
before the Judicial Magistrate (PW 12). The Magistrate proved the
statement (Ext 9).
14. PW 8 (Nurul Seikh) deposed dead body of a girl was recovered
from a pond. He signed the inquest report. He did not depose in Court he
had seen the appellants with the couple on the fateful night.
15. PW 9 (Dr. J N Chatterjee) is the post mortem doctor. He deposed
on 29.08.1986 he held post mortem over the dead body. He found the body
was highly decomposed. He could not opine with regard to the cause of
death as the body was highly decomposed. He proved the viscera report.
16. PW 13 (Gopal Ch. Dey) deposed he had gone to the village and
lifted the body of Sufera. He prepared inquest report (Ext 2). He conducted
investigation over the unnatural death case.
17. PW 10 (Palan Chandra Maity) and PW 11 (Sunil Kumar Paul) are
the investigating officers of the case. PW 11 submitted charge sheet.
Findings of the Court:-
18. Analysis of the evidence would show that prosecution case is
based on circumstantial evidence. Prosecution has relied on the following
incriminating circumstances to prove the guilt :-
(i) 'Last seen' theory;
(ii) Extra judicial confession &
(iii) Judicial confession of Moinuddin Sk.
(i) 'Last seen' theory:-
19. PW 3 stated in the evening around 8/9 P.M. he had seen the
couple proceeding down the road. When queried they stated they are going
to see a movie. 2-3 minutes later appellants were seen going down the
same road. They also stated they were going to see a movie. Even if the
aforesaid version of PW 3 is believed, it does not give an impression that he
had seen the appellants with the couple. At its height it shows few minutes
after the couple had travelled down the road, appellants were seen
travelling down the same road and had claimed they were going to see a
movie.
20. As this circumstance is sought to be proved through PW 3, it is
incumbent to test whether this witness is unimpeachable and finds
support from other materials on record.
21. Father of the victim (PW 1) stated the victim had left her
residence with her husband Kalam in the evening of 20.08.1986.
Thereafter, she did not return. On the next day, PW1 started searching for
his daughter. He stated he enquired from various persons in the village
including Baidujjaman (PW 3). Bodiujjaman (PW 3) told PW 1 he had seen
the couple travelling down the road in the evening. He did not state that
couple was accompanied or followed by the appellants. Thus, PW 1 does
not corroborate PW 3 that the latter had seen the appellants follow the
couple down the road on the fateful evening.
22. Mr. Sudip Ghosh drew our attention to the FIR where PW 1
claimed that on 16th Bhadra i.e. 02.09.1986, Baidujjaman (PW 3) and
Nurul Seikh (PW 8) had disclosed appellants were with the couple on the
night of occurrence. But the evidence of PW 1 with regard to the so-called
disclosure is otherwise. As discussed earlier, PW 1 stated PW 3 told him he
had seen the couple together. He did not mention the appellants. Nurul
Seikh (PW 8) is also silent with regard to the 'last seen' circumstance in
Court.
23. Even the day when PW 3 disclosed this circumstance is unclear.
In FIR it is stated four days after the discovery of dead body, PWs 3 and 8
disclosed this circumstance to the de facto complainant, father of the
deceased.
24. Contrary to the case made out in the FIR, PW 3 claimed in Court
he disclosed the incident to villagers on the day the dead body was
recovered. Prosecution case with regard to the 'last seen' theory is in
disarray. Baidujjaman's (PW 3) version does not find corroboration from
Nurul Seikh (PW 8). As per FIR, PW 3 disclosed the incident four days after
the discovery of the dead body. But in court the de-facto complainant is
completely silent with regard to such disclosure to him and PW 3 claims
the disclosure was made on the very day the body was recovered.
25. For these reasons, I do not consider it safe to rely on the version
of the sole witness PW 3 that the appellants were seen travelling down the
same road 2-3 minutes after the couple had gone down that path. 'Last
seen' theory is based on shaky evidence and cannot be said to have been
proved.
(ii) Extra Judicial confession:-
26. Another incriminating circumstance is the extra judicial
confession made by the appellants. PWs. 4 to 6 are villagers. They deposed
the dead body of the victim was recovered on 29.08.1986. On that day,
Baidujjaman and Nurul Seikh disclosed they had seen the appellants with
the couple. Thereafter a salish was held. Kalam, husband of the victim
admitted he had murdered the victim with the help of the appellants.
Appellants were summoned to the salish and also admitted their guilt.
27. The aforesaid evidence is not corroborated by the contents of FIR
and other attending circumstances. In the FIR, it is stated Baidujjaman
and Nurul Seikh disclosed they had seen the appellants with the couple
four days after the recovery of the body. Thereafter, salish was held where
Kalam and the appellants admitted their guilt. In Court, the maker of the
FIR (PW 1) is completely silent with regard to the so-called extra judicial
confession.
28. I am conscious that the First Information Report being a previous
statement of the complainant may not be used to contradict other
witnesses. But the evidence of other witnesses with regard to extra judicial
confession on the day of recovery of dead body i.e. on 29.08.1986 must be
tested on the anvil of broad probabilities and normal human conduct. Had
such disclosure been made on the day of recovery, it is inexplicable why
the First Information Report came to be registered four days later i.e. on
04.09.1986 stating the so-called confessions were made a day before i.e.
on 03.09.1986. This inconsistency strikes at the root of the prosecution
case that Kalam and the appellants had made an extra judicial confession
on the day of recovery of the dead body. It is also apposite to note that the
extra judicial confession is said to have been made in the course of a
salish. The salishnama has not been produced in Court to corroborate the
deposition of witnesses regarding the salish.
29. In view of the contradictory stances emanating from FIR and the
mouths of prosecution witnesses with regard to the date on which the
extra judicial confession was made and other attending circumstances like
lack of corroboration from PW 1 and non-production of salishnama, I am of
the opinion the extra judicial confession of the appellants during salish
has not been proved beyond doubt.
(iii) Judicial Confession of Moinuddin Sk.:-
30. PW 12 proved the judicial confession (Ext.9) of Moinuddin Sk.
Contents of the said confession (Ext.9) show it is an exculpatory one. In
the confession Moinuddin Sk. stated Kalam suspected the fidelity of his
wife. He approached the appellants to murder her and offered money.
Najimuddin Sk. accepted the offer. Thereafter, on the ruse of going for a
movie, Kalam took his wife to a field. Kalam and Najimuddin ushed Sufera
into the room. Thereafter, Najimuddin raped her and both of them
strangulated her with a napkin. When the victim died Najimuddin took her
body near the pond. He was asked to bring bricks. Then Najimuddin and
Kalam tied bricks to the body and threw her into the pond. Thereafter,
Najimuddin threatened him not to disclose the incident to anyone.
31. A plain reading of Ext.9 would show the confession is an
exculpatory one. Moinuddin Sk. has not implicated himself in the murder.
He blames Najimuddin and Kalam for the murder. At its height he only
admits after the murder he supplied bricks to the co-accused to assist
them to sink the body in the pond. The aforesaid statement cannot be
treated to be a confession by Moinuddin Sk. with regard to the murder.
Exculpatory confession of an accused cannot be used against another.
32. I have already discussed the other incriminating circumstances
against the appellants i.e. 'last seen' theory and the extra judicial
confession have not been proved. In their absence, exculpatory confession
of Moinuddin Sk. cannot form the foundation of guilt against the other
accused i.e. Najimuddin. The confession to the extent it is exculpatory can
be used to convict its maker i.e. Moinuddin Sk. for commission of offence
punishable under Section 201 IPC and not murder.
Conclusion:-
33. In the light of the aforesaid discussion, I acquit Najimuddin Sk.
of the charges levelled against him.
34. Accordingly, appellant no.2, Najimuddin Sk., shall be discharged
from his bail bond after expiry of six months in terms of Section 437A of
the Code of Criminal Procedure.
35. Appellant no.1, Moinuddin Sk., is acquitted of the charge under
Section 302 IPC. He is convicted of the charge under Section 201 IPC.
36. With regard to punishment, it appears the appellant has been in
custody for about a year. Even if one believes the judicial confession, his
role in the occurrence is marginal. Incident occurred four decades ago.
37. Under such circumstances, I modify the sentence imposed upon
the appellant viz. Moinuddin Sk. and direct that he shall suffer rigorous
imprisonment for the period already undergone and pay a fine of
Rs.5000/-, in default, to suffer rigorous imprisonment for one year more.
38. Appeal is allowed to the aforesaid extent.
39. Period of detention suffered by the appellant viz., Moinuddin Sk.
during investigation, enquiry and trial shall be set of from the substantive
substance imposed upon him in terms of Section 428 of the Code of
Criminal Procedure.
40. I express my appreciation for the able assistance rendered by Mr.
Bibaswan Bhattacharya, Amicus Curiae in disposing of the appeal.
41. Lower court records along with a copy of this judgment be sent
down at once to the learned trial Court for necessary action.
42. 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.)
as//tkm/PA
