Ashok Kumar Roy vs The State of West Bengal

R.K. Bag, J.—This criminal appeal arises out of judgment and order dated 17th March, 2005 and 18th March, 2005 respectively passed by Learned Additional Sessions Judge, 7th Court, Alipore, South 24-Parganas in S.C. Case No. 48(6) 2002 corresponding to S.T. No. 1(8) of 2002, whereby Learned Judge of the trial court convicted the appellants for commission of the offence u/s 302/34 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Rs. 5,000/-, in default to suffer simple imprisonment for 6 months more.

The prosecution case, in a nutshell, is that one Mahinder Rajbhar was found missing since 24.02.2001. On 24.02.2001 at about 3:30 p.m. Mahinder Rajbhar was seen along with the accused Matabadal Rajbhar and Ashok Kumar and others at the crossing of Remount Road and Diamond Harbour Road for the last time. One missing diary was lodged at Watgunj Police Station being G.D. Entry No. 2670 dated 25.02.2001. On 26.02.2001 Smt. Usha Devi Rajbhar, wife of Mahinder Rajbhar received telephonic message from Alamgunj Police Station, Patna, Bihar to the effect that one male person was recovered from under the Mahatma Gandhi Bridge, Patna and shifted to Nalanda Medical College and Hospital, Patna. As the description of the injured person recovered under Mahatma Gandhi Bridge matched with the appearance of Mahinder Rajbhar, the relatives of Mahinder Rajbhar rushed to Patna and identified the dead body of Mahinder Rajbhar. One unnatural death case was started by the police of Alamgunj Police Station. The inquest on the dead body was held and the post-mortem examination of the dead body was also held. However, the specific criminal case was started at South Port Police Station on 06.11.2001 on the basis of written complaint submitted by the wife of Mahinder Rajbhar before the Officer-in-charge of South Port Police Station. The police investigated the case and submitted charge sheet. The court framed charge against the appellants on the allegation of committing offence u/s 364/34 of the Indian Penal Code and u/s 302/34 of the Indian Penal Code. Ultimately, the trial court convicted the appellants for commission of the offence u/s 302/34 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life and to pay fine of Rs. 5,000/-, in default to suffer simple imprisonment for 6 months more.

The defence case culled out from the trend of cross-examination of the prosecution witnesses and from the examination of the accused persons u/s 313 of the Code of Criminal Procedure is that they are innocent and that they have been implicated in this case on false allegation.

The appellants have challenged the judgment and order passed by Learned Judge of the court below on the grounds, inter alia, that the circumstances relied on by the Learned court below for holding the appellants guilty of the charge have not been proved beyond reasonable doubt, that the motive of the appellant for committing the murder is not established, that the inordinate delay of more than 8 months in lodging the F.I.R. has not been explained satisfactorily and that there are many missing links in the chain of circumstances pointing out the innocence of the appellants. Accordingly, the points for consideration in this appeal are: i) whether the appellants are guilty of the charge u/s 302/34 of the Indian Penal Code and ii) whether the judgment and order passed by Learned Judge of the court below is liable to be set aside.

Admittedly, this is a case based on circumstantial evidence. The proposition of law laid down by the apex court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, and in the case of Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, is that to prove the guilt of the accused persons by way of circumstantial evidence the following tests are to be satisfied: i) the circumstances from which conclusion is drawn must be fully proved and established, ii) the facts established must be consistent with the hypothesis of the guilt of the accused and inconsistent with the innocence of the accused, iii) the circumstances must be of conclusive nature and tendency, so that the established facts exclude every possible hypothesis except the guilt of the accused and iv) the established facts will indicate chain of events so complete as not to leave any doubt for the conclusion that in all human probability the crime could have been committed by the accused and no one else. Let us now scan the evidence to find out whether the above tests are satisfied in the instant case based on circumstantial evidence.

The trial court considered oral testimony of 15 prosecution witnesses and the documents marked Exhibit No. 1 to 9 on behalf of the prosecution and documents marked Exhibit "A" on behalf of the defence. It is relevant to point out the gist of the evidence of the prosecution witnesses before considering the submissions made by Learned Counsels for proper appreciation of the submission.

P.W. 1 (Ram Niwas Gupta) was the Darwan in the garage of the deceased Mahinder Rajbhar. It transpires from the evidence of P.W. 1 that he found the deceased Mahinder Rajbhar along with the accused Matabadal Rajbhar and a few others whose names cannot be recollected by him on 24.02.2001 at about 3:45 p.m. at the crossing of Remount Road and Diamond Harbour Road. This witness was permitted by the court to be cross-examined by the prosecution u/s 154 of the Indian Evidence Act. This witness has stated during cross-examination that Nandlal Ram, Ramchandra Ram and the accused Ashok Kumar were also present on 24.02.2001. This witness has stated during cross-examination that he knew the accused Matabadal and Ashok for last 20 years as they used to come to the place of business of the deceased Mahinder Rajbhar. Simply because this witness has been declared hostile, this witness does not become totally unreliable on that count. It is held by the Supreme Court of India in the case of State of U.P. Vs. Ramesh Prasad Misra and another, that the evidence of a hostile witness should not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. The evidence of this witness to the effect that he saw the accused Matabadal and Ashok along with the deceased Mahinder Rajbhar on 24.02.2001 at about 3:45 p.m. in the crossing of Remount Road and Diamond Harbour Road is consistent with the prosecution story and as such this aspect of his evidence can be accepted as reliable.

P.W. 2 (Hriday Yadav) was an employee of the deceased Mahinder Rajbhar. It appears from the evidence of P.W. 2 that he saw the accused Matabadal and Ashok with the deceased Mahinder Rajbhar in a Tata Sumo in the morning at about 5.00 a.m. on 26.02.2001 at Dalkhola. The cross-examination of this witness reveals that he went to Dalkhola in connection with the repair of Trailer of which he was the driver and the said Trailer belonged to the deceased Mahinder Rajbhar. The cross-examination of this witness also reveals that he did not report to anyone about the fact that the deceased Mahinder Rajbhar was accompanied by the accused Matabadal and Ashok in a Tata Sumo for about two to three months after the incident on the ground that he was suffering from illness on and from 26.02.2001 and lived in his native place at Bihar. This inordinate delay on the part of P.W. 2 to report about the incident of seeing the deceased Mahinder Rajbhar along with the accused persons at Dalkhola raises suspicion about the statement made by this witness and as such we are unable to give any credence to the oral testimony of P.W. 2.

P.W. 3 (Bundi Rajbhar) is the son of paternal aunt of the deceased Mahinder Rajbhar. It is elicited from the evidence of this witness that he saw the deceased Mahinder Rajbhar along with the accused Ashok and Matabadal and some other persons on 24.02.2001 at about 3:00 to 3:13 p.m. at the junction of Diamond Harbour Road and Remount Road. This witness gave information about the missing of the deceased Mahinder Rajbhar to his relative Mahendra Rajbhar at Varanasi over phone. This witness had no knowledge about any dispute between the accused Matabadal and the deceased Mahinder Rajbhar over property at Varanasi. Nothing transpires from cross-examination to disbelieve the evidence of this witness.

P.W. 4 (Mukti Dinda) is an employee of the deceased Mahinder Rajbhar. It appears from the evidence of this witness that on 24.02.2001 at about 3:00 to 3:13 p.m. he dropped the deceased Mahinder Rajbhar in the crossing of Remount Road and Diamond Harbour Road by taking him from the garage by motorcycle. This witness has stated that when he dropped the deceased Mahinder Rajbhar he also saw the accused Matabadal and his brother-in-law Ashok standing on the pavement on the opposite side of the road. This witness has stated that he knew the accused persons as they used to visit the garage of the deceased Mahinder Rajbhar very often. We don''t find any reason to disbelieve the evidence of this witness.

P.W. 5 (Paltan Ray) has stated in his evidence that on 24.02.2001 he saw the deceased Mahinder Rajbhar with the accused Matabadal and Ashok on 24.02.2001 for the last time. Nothing transpires from the cross-examination to disbelieve the evidence of this witness.

P.W. 6 (Kallu Shaw) is an auto rickshaw driver of Patna, who saw someone falling down from Mahatma Gandhi Bridge in the month of February, 2001 at 3:00 p.m. when he attended nature''s call in the river. Since this witness could not disclose the name of either the deceased or the accused person, his evidence does not help either the prosecution or the defence.

P.W. 7 (Mahendra Rajbhar) is a resident of Varanasi. This witness heard about the fact of missing of Mahinder Rajbhar from P.W. 3 on 25.02.2001 and searched for the accused Matabadal and his brother-in-law Ashok at their native place. This witness came to learn that the accused Matabadal and his brother-in-law Ashok were absent from the house about three to four days before the date of receiving information of missing of the deceased Mahinder Rajbhar on 25.02.2001. This witness identified the dead body of the deceased Mahinder Rajbhar at Patna. Nothing transpires from the cross-examination to disbelieve the evidence of this witness.

P.W. 8 (Dr. N.K. Singh) is an Associate Professor of Forensic Medicine at Nalanda Medical College & Hospital, Patna. On 27.02.2001 he held post-mortem examination on the dead body of the deceased Mahinder Rajbhar by showing the name of the deceased as Ashok Kumar in the post-mortem report. This witness found the following injuries after post-mortem examination: i) Rigor mortis present all over the dead body. No decomposition. Plaster applied over right leg. Lacerated wound found over right leg 3" x 2" x bone deep of right foot with fracture dislocation of right ankle. Multiple abrasions involving right leg, forehead measuring 1/2" x 1/2". Fracture of pelvis, abrasion on pubic region, ii) on dissection-all visceras were found pale, heart empty, bladder empty, stomach contains watery fluid, fracture of pelvic bone with blood clots in pelvic cavity. Fracture of tibia and fibula and tarsal and medatarsal bone-skull-no fracture, haematoma subdural bone on occipital region. This witness has given the opinion that the death was due to shock and haemorrhage sustained by above mentioned injuries. This witness has not specifically mentioned in the post-mortem report whether the death was homicidal or suicidal or accidental, but he has specifically mentioned that the deceased died due to the injuries sustained by him and this type of injuries cannot happen due to road accident. Nothing is on record to disbelieve the evidence of this expert witness.

P.W. 9 (Dhananjay Rajbhar) is a resident of UP and brother-in-law of the deceased Mahinder Rajbhar. It appears from the evidence of this witness that on 25.02.2001 he came to know from his sister over phone that the deceased Mahinder Rajbhar was missing. It also appears from his evidence that he went to search the accused persons in their house after getting information of missing of the deceased Mahinder Rajbhar and came to learn that the accused persons were absent from the house for about 3/4 days prior to the incident of missing of the deceased Mahinder Rajbhar. Nothing transpires on record to disbelieve the evidence of this witness.

P.W. 10 (Krishna Singh), this witness accompanied Mahendra Rajbhar (P.W. 7) and two other persons to Patna and identified the dead body of the deceased Mahinder Rajbhar. P.W. 11 (Dr. B.B. Pandey) is the retired professor of surgery of Nalanda Medical College & Hospital, Patna. It is elicited from the evidence of this witness that on 26.02.2001 one unknown person which multiple injuries was admitted to the surgical emergency department of the hospital in unconscious state and he was examined by the junior doctor working under him. It is established from the evidence of this witness that the injured was admitted in the hospital in unconscious state as an unknown person.

P.W. 12 (Usha Rajbhar) is the wife of the deceased Mahinder Rajbhar. It appears from the evidence of this witness that on 26.02.2001 she received telephonic call from Alamgunj Police Station, Bihar in respect of an unknown dead body and on 27.02.2001 Krishna Singh (P.W. 10), Mahendra Rajbhar (P.W. 7) and two other persons rushed to Alamgunj Police Station and identified the dead body of her husband Mahinder Rajbhar in the hospital at Patna. This witness lodged the F.I.R. after lapse of more than 8 months of the incident of murder of her husband. The explanation given by P.W. 12 with regard to the inordinate delay in lodging the F.I.R. is that she was completely mentally upset and that she was under the impression that Alamgunj Police Station which recovered the dead body would initiate the criminal case. This explanation given by P.W. 12 for the delay of more than 8 months in lodging the F.I.R. is not at all satisfactory. This inordinate delay of more than 8 months in lodging the F.I.R. by P.W. 12 is no doubt fatal to the prosecution. This witness has made unsuccessful attempt to establish the motive on the part of the accused persons to commit the murder. She has stated in the evidence that there was dispute between the deceased Mahinder Rajbhar and the accused Matabadal over property affairs. This evidence is not sufficient to establish any motive on the part of the accused persons to commit the murder of the deceased Mahinder Rajbhar.

P.W. 13 (Sub-Inspector Shamim Akhtar) had held inquest of the dead body of the deceased and enquired into unnatural death case of the deceased. The statement of this witness with regard to the name of the deceased and the incident of falling down of the deceased from the Mahatma Gandhi Bridge will go down as hearsay evidence, because this witness got the above information from A.S.I. Sitaram Ram through wireless. This witness has specifically stated in his evidence that the dead body of the injured was identified subsequently by his relatives as the dead body of Mahinder Rajbhar. This witness has also admitted about the application submitted by P.W. 7 claiming the dead body to be of the deceased Mahinder Rajbhar and the said document is marked Exhibit-5. On close scrutiny of the evidence of this witness it appears that whatsoever he has stated about the identity of the deceased at the initial stage of recovery of the injured and admission in the hospital was on the basis of information given by one Dharamraj Roy and A.S.I. Sitaram Ram and as such his evidence with regard to identity of the injured at the initial stage of the incident must be discarded as hearsay evidence, though in the latter part of the incident he came to know about the identity of the dead body to be of the deceased Mahinder Rajbhar when the dead body of Mahinder Rajbhar was identified by P.W. 7 and P.W. 10 and handed over to them.

P.W. 14 (A.S.I. Sitaram Ram) has stated in evidence that on 26.02.2001 while he was on duty at Gaighat, he received information that someone had fallen from the Mahatma Gandhi Bridge and he rushed to the spot and recovered the injured. This witness came to learn from the injured that one Ashok Kumar had pushed him from bridge and thereby he fell down. The cross-examination of this witness reveals that the injured was not admitted in the hospital by name Ashok Kumar, because the injured specifically stated that he was pushed down from the bridge by one Ashok Kumar. It is clear from the evidence of this witness that the deceased Mahinder Rajbhar made one oral dying declaration before this witness to the effect that he was pushed down from Mahatma Gandhi Bridge by one Ashok Kumar. However, this witness was not examined by P.W. 13 who investigated the unnatural death case and thereby the facts have become hazy before the court and thereby the oral dying declaration of the deceased Mahinder Rajbhar cannot be relied upon as trustworthy.

P.W. 15 (S.I. Prasenjit Bhattacharjee) investigated the case and submitted charge sheet. The evidence of this witness is not material to prove the incident as he investigated the case after long lapse of time when the F.I.R. was registered.

Mr. Souvik Mitter Learned Counsel for the appellants submits that the identity of the deceased was not established as Mahinder Rajbhar, because i) inquest report (Exhibit-A) discloses the name of the deceased as Ashok Kumar, son of Ram Swarup, ii) post-mortem report (Exhibit-1) discloses the name of the deceased as Ashok Kumar aged about 40 to 45 years, son of Ram Swarup, and iii) the photo copy of the bed-head tickets (Exhibit-2) also discloses the name of the injured as Ashok Kumar, son of Ram Swarup. The G.D. Entry No. 2670 dated 25.02.2001 (Exhibit-10) discloses that one Mahinder Rajbhar aged about 32 years, son of late Rambali Ram was missing from 24.02.2001 at 3:30 p.m. Moreover, the specific prosecution case is that Mahinder Rajbhar was abducted and murdered by the accused persons. To appreciate the submission of learned counsel for the appellants, it is necessary to point out the circumstances under which the name of Ashok Kumar, son of Ram Swarup was incorporated in the inquest report (Exhibit-A), post-mortem report (Exhibit-1) and photo copy of the bed head tickets (Exhibit-2) of the deceased. On close scrutiny of the oral testimony of Sub-Inspector Shamim Akhtar (P.W. 13), we find that he received information from A.S.I. Sitaram Ram (P.W. 14) over wireless to the effect that one injured recovered from under the Mahatma Gandhi Bridge expired and accordingly, he conducted the inquest and started the unnatural death case no. 3/2001 at Alamgunj Police Station and also sent the dead body for post-mortem examination. Naturally the incorporation of the name of the injured in the inquest report (Exhibit-A), in the PM report (Exhibit-1) and in the photo copy of the bed-head tickets (Exhibit-2) was done on the instruction of P.W. 13 who had no direct knowledge about the identity of the injured. P.W. 13 has specifically stated that one Dharamraj Roy saw one person falling from the bridge, but Dharamraj Roy was not examined as prosecution witness. The carbon copy of the statement of Dharamraj Roy marked Exhibit-8 cannot be considered as evidence, because the said statement recorded u/s 161 of the Code of Criminal Procedure can be used only for the purpose of contradicting the evidence of Dharamraj Roy given in the court. The cross-examination of P.W. 13 clearly reveals that the name of the deceased was unknown when he started the unnatural death case. However, this witness has made all arrangements for handing over the dead body as that of Mahinder Rajbhar after identification of the dead body by P.W. 7 and P.W. 10. This witness also issued instruction to the hospital authority for making over the dead body to the relatives of the deceased by disclosing the name of the deceased as Mahinder Rajbhar as reflected in the document marked Exhibit-6. The dead body challan prepared by this witness marked Exhibit-7 also discloses the name of the deceased as Mahinder Rajbhar. Even the bed-head ticket of the deceased (Exhibit-2) indicates that the patient was unknown and unconscious and thereafter the name of Ashok Kumar, son of Ram Swarup appears. I have already discussed the evidence of P.W. 14 (A.S.I. Sitaram Ram) who recovered the unknown injured from under Mahatma Gandhi Bridge and came to learn from the injured that one Ashok Kumar pushed him from the bridge and thereby he fell down. I have also observed that P.W. 10 (Krishna Singh) and P.W. 7 (Mahendra Rajbhar) identified the deceased as Mahinder Rajbhar in the Nalanda Medical College and Hospital at Patna and the application given by P.W. 10 in this regard is marked Exhibit-5. The oral testimony of P.W. 7 and P.W. 10 is corroborated by the documentary evidence marked Exhibit-4, 5, 6 and 7 which unerringly point out that the dead body of the deceased was that of Mahinder Rajbhar. The Court will not construe the evidence in a piecemeal manner. When the evidence of the above prosecution witnesses and the documents pointed out hereinabove are considered as a whole, the identity of the deceased as Mahinder Rajbhar is established beyond reasonable shadow of doubt.

The next submission made by Mr. Mitter is that there is inordinate delay of more than 8 months in lodging the F.I.R. and this delay has not been explained to the satisfaction of the court. Mr. Mitter also submits that there was no motive on the part of the appellants for committing murder of the deceased Mahinder Rajbhar. On scrutiny of the evidence we accept the above submission made by Mr. Mitter as we have found that the delay of more than 8 months in lodging the F.I.R. has not been explained to our satisfaction. It is also true that the prosecution has failed to establish the motive of the appellants in committing the murder of the deceased Mahinder Rajbhar. The last submission made by Mr. Mitter is that there are many missing links in the chain of circumstantial evidence relied on by the prosecution and as such the appellants are entitled to get the benefit of doubt.

On close scrutiny of the entire evidence on record we find that the following circumstances have been established to prove the charge against the appellants: i) The deceased Mahinder Rajbhar was last seen with the accused Matabadal and Ashok Kumar on 24.02.2001 in between 3:00 p.m. and 3:45 p.m. at the crossing of Diamond Harbour Road and Remount Road. This fact has been established beyond doubt from the evidence of P.W. 1, P.W. 3, P.W. 4 and P.W. 5. ii) The absence of the accused Matabadal and Ashok Kumar from the house about 3/4 days before the date of receiving information about missing of Mahinder Rajbhar. This fact has been established from evidence of P.W. 7 and P.W. 9 who are residents of UP and got the information about the missing of deceased Mahinder Rajbhar on 25.02.2001. However, we find that the prosecution has failed to establish the following circumstances to complete the chain in order to bring home the charge levelled against the appellants: i) The oral dying declaration of the deceased Mahinder Rajbhar is sought to be proved by P.W. 14 to the effect that the deceased Mahinder Rajbhar was pushed down from Mahatma Gandhi Bridge by the accused Ashok Kumar on 26.02.2001. The statement of P.W. 14 is not consistent with the statement of P.W. 13 who conducted investigation of unnatural death case. Since P.W. 14 was not examined by P.W. 13 as witness in the unnatural death case and since the witness Dharamraj Roy who saw the deceased falling down from the bridge, was not examined by the prosecution, we are unable to give much credence to the evidence of P.W. 14 who heard from the deceased that he was pushed down from the bridge by the accused Ashok Kumar. So, the dying declaration of the deceased Mahinder Rajbhar cannot be relied upon as trustworthy. ii) The homicidal death of the deceased has not been established from the evidence of the autopsy surgeon (P.W. 8). However, P.W. 8 has given opinion that the deceased died due to shock and haemorrhage resulting from the injuries sustained by him. In the absence of specific proof that the deceased was pushed down from the Mahatma Gandhi Bridge by someone for causing death, the homicidal death of the deceased Mahinder Rajbhar cannot be held to be established from evidence on record. iii) The motive for murder of the deceased by the appellant has not been established from the evidence on record, iv) The inordinate delay of more than 8 months in lodging the F.I.R. has not been explained to the satisfaction of the court. v) The Tata Sumo vehicle alleged to have been used for abducting the deceased from Calcutta to Patna is not traced out and the driver of the said vehicle has not been identified and interrogated by the investigating agency. vi) Dharamraj Roy who saw the deceased being pushed down by someone from Mahatma Gandhi Bridge is the most vital witness of this case, but this witness has not been examined by the prosecution without cogent explanation. In view of our above findings, we are constrained to hold that there are many missing links in the chain of circumstances sought to be established by the prosecution to bring home the charge against the appellants. The natural corollary is that the appellants are entitled to get the benefit of acquittal.

The criminal appeal is, thus, allowed. The judgment and order dated 17.03.2005 and 18.03.2005 respectively passed by Learned Additional Sessions Judge, 7th Court, Alipore, South 24-Parganas in Sessions Case No. 48(6) of 2002 corresponding to Sessions Trial No. 8 of 2008 is set aside and the appellants are set at liberty. The appellant detained in correctional home may be released forthwith. The CRAN No. 203 of 2014 is, also disposed of. The department is directed to send down a copy of this judgment along with lower court records to the learned Court below for favour of information and necessary action.

Urgent Xerox certified copy of this judgment, if applied for, be given to the parties expeditiously after compliance with all necessary formalities.

Subhro Kamal Mukherjee, J.

I agree