Chottu Kujur @ Sathu Kujur vs The State of West Bengal

Siddhartha Chattopadhyay, J.—This criminal appeal emanates from the judgment and order dated 23.07.2009 and 24.07.2009 passed by the learned Additional Sessions Judge, 1st Court, Siliguri, Darjeeling in connection with Sessions Case No. 21 (S) of 2005. By the said impugned judgment Additional Sessions Judge was pleased to convict the appellant and sentenced him to suffer imprisonment for life and also to pay fine.

Feeling aggrieved by and dissatisfied with the said finding of the learned Additional Sessions Judge, the appellant wants to assail the said judgment on following counts. According to the appellant, the fate of the case depends entirely on circumstantial evidence and the prosecution is under an obligation to establish the chain of every circumstance in its proper perspectives and there should not be any missing link in the entire chain of circumstances.

Before delving into merit of the appeal this Court wants to unfurl the prosecution case which is as under. Basis for setting the law into motion is the F.I.R. lodged by Parmila Kerketta, the wife of the victim, who had lodged the F.I.R. on 14.10.2004 disclosing that one of her relative Chottu Kujur @ Cathey came to their house on 2.10.2004 and requested her husband go to his house on the occasion of ''Puja'' and ultimately he took away the victim with him. Since then her husband did not turn up. She has searched from pillar to post to find him out but could not. On 05.10.2014 her brother in law Enem Kerketta lodged one missing diary on 05.10.2004. However on 13.10.2004 she got an information that one dead body was found in Champta Jhora river side. After getting such information, she went to medical college and recognised the dead body of her husband by identifying the teeth. Thereafter, she found the accused in her house and asked him why he had taken her husband from her house. According to the defacto-complainant, this time the convict appellant has admitted that he had killed her husband by drowning in the river. Ventilating this story, the F.I.R. was lodged.

It appears from the case record that the inquest report was prepared and post mortem report was obtained by the I.O. He has recorded the statements of the witnesses under Section 161 Cr.P.C., prepared rough sketch map and after completion of the investigation, has submitted charge-sheet under Section 302/201 of IPC. The said charges were read over and explained to the accused to which he pleaded not guilty and claimed to be tried. This gives rise this occasion to the Additional Sessions Judge to adjudicate upon the case.

It appears from the record that the learned Sessions Judge has recorded the evidence of the prosecution witnesses, examined the accused under Section 313 Cr.P.C. and after hearing the parties he has recorded an order of conviction and sentence.

At the time of hearing of argument before this Court, learned Counsel appearing on behalf of the appellant contended that the learned Court below failed to appreciate the evidence of the parties in its proper perspectives. According to him, the evidence of prosecution witnesses are contradictory with each other and if it can be scrutinised meticulously in that event it would show that there is no evidence at all to bring the accused booked.

In the interest of effective adjudication we should listen to the witnesses. Parmila Kerketta, P.W. 1 is the wife of the victim. In her examination in chief she has stated that the convict appellant took the victim forcibly on the date of incident and thereafter he did not turn up even on the next day. Thereafter missing diary was lodged and she had identified the dead body by seeing the teeth of the victim. In examination of chief, she has categorically stated that the convict appellant had insisted the victim to accompany him to his house as there was a ''Puja'' in his house. It is hard to believe that a person can take away another person by force for attending a ''Puja'' in his house. The said application of force was not mentioned in the F.I.R. itself. Missing diary was lodged after two days. The said missing diary was not produced during the course of trial. Now the question is if the victim was really taken away by way of coercion, then why the victims bereaved family, waited for almost three days for lodging the diary. If the victim was taken away forcibly, it is presumed that there would be some sort of resistance either by the victim himself or by his wife or by other family members. There is no explanation as to why the G.D.E. was lodged after three days. In examination in chief this P.W. 1 has stated that the accused confessed his guilt at the P.S. If any accused confessed his guilt at the P.S. i.e. in presence of the police personnel, then it cannot be treated as an extra-judicial confession. Learned Additional Sessions Judge held that the accused had made an extra judicial confession.

It further appears from the F.I.R. itself, that when the defacto complaint came back from medical college after identifying the dead body, he found the accused appellant in her house. They asked the accused appellant why he had taken away to his house, the accused appellant admitted that he had killed her husband. But this part of evidence has not been stated in her examination in chief. Nowhere in her evidence in chief she had stated that the accused appellant confessed his guilt in her house. So there is a contradiction so far as the F.I.R. and statement of P.W. 1, (so far as confessional statement of the accused) is concerned. In her examination in chief she has candidly stated that after recovery of the dead body of her husband, the accused appellant never came to her house, whereas in the F.I.R. she has mentioned that when she came back from the medical college, she found the accused in her house. There is also no whisper in the four corners of her evidence that after committing the offence, the accused appellant had fled away.

Enem Kerketta, PW. 2 is the brother of the victim. In his evidence in chief he had corroborated the prosecution story to some extent. From his evidence it transpired the accused appellant has taken the victim in his house. He did not say that the accused had taken away the victim by force, which has been stated by the P.W. 1. This witness is also the witness to the inquest report. In course of cross-examination, he had mentioned that he had lodged the missing diary but he failed to the recollect the number of the said diary. P.W. 1 stated that the accused had taken a loan of Rs.400 and since that was not paid there was a strain relation between the victim and the accused appellant. But this P.W. 2 expressed his ignorance about the said loan of Rs.400. This apart, story of giving loan has not been mentioned in the F.I.R. In cross-examination, P.W. 1 admitted that the victim used to take country liquor but the P.W. 2 stated that victim did not take country liquor every day. The evidence P.W. 1 is just opposite. This witness also stated that the accused has confessed his guilt but place of making of such confessional statement has not been specifically stated by this P.W. 2. On the contrary it appears from the evidence of P.W. 1 that it was done at the P.S. Therefore question of voluntariness is lacking and the said so called extra judicial confession cannot be taken into consideration.

P.W. 3 is Raju Oraon. In his evidence he has contended that on 02.10.2004 the accused appellant had taken away the victim from his house forcibly and narrated the prosecution story. In course of cross-examination, he has categorically stated that he has no direct knowledge about the incident but he came to know from some other persons of locality about the incident. Therefore, no reliance can be placed upon this P.W. 3.

P.W. 4 is Mantu Oraon, he has stated that the accused appellant came to the house of the victim and thereafter he murdered him. In course of cross-examination he admitted that the accused appellant went to the house of the victim on 02.10.2004. He had stated to the police that on asking the accused appellant told him that he was coming back from the house of the victim. His evidence does not help anybody. P.W. 5 Cebstina Kerketta, was tendered for cross-examination and the defence declined to cross-examine. P.W. 6 Sabina Oraon, has no direct knowledge regarding the alleged incident. He could not say where the dead body was found. Finally he concluded that he knew nothing about the incident. He also categorically stated that the police officer did not interrogate him. P.W. 7 Rajkumar Oraon, is a co-villager he has proved his signature only and he was not cross-examined. P.W. 8 Bapi Roy, has stated that the O.C. of Sukna P.S. obtained his signature on a paper against his will. P.W. 9 is Binoy Kerketta. In his evidence he has stated that the victim was killed by the accused appellant on 02.10.2004. The accused appellant had taken the victim away from his house on the ground that there was ''Puja'' in his house and since then the victim never turned up. On 12.10.2004 the accused appellant came to the house of the victim and then the village people caught hold of him and at that time the accused appellant had admitted his guilt. But the question is P.W. 1, in whose house the accused has made such confessional statement, did not say so on the contrary, according to her, the accused has given confessional statement at the P.S. Therefore, there is substantial difference between the evidence of the victim''s wife and the other witnesses. However he has admitted his signature in the F.I.R. In cross-examination he admitted that whatever he wrote that was on the basis of hearing from the victim''s wife and that he was not examined by the police. Nirmal Soy deposed nothing and he was tendered for cross-examination but the defence did not cross-examine him. P.W. 11, Sawan Thapa, a constable posted on Sukna outpost, stated on that day a body was recovered and he was one of the signatories of the challan, by which the body was brought to medical college for post mortem. He is not witness to the occurrence. P.W. 12 Alexander Munda, was also tendered for cross-examination and defence declined to cross-examine. Sukumar Guha Neogy (P.W. 13) was the I.O. of this case and according to him after receiving the complaint he went to Champta Jhora river side and inquest report was prepared in the presence of the complainant and other witnesses. In his cross-examination it appears that it was almost dark and with the help of torch light inquest was done. In course of cross-examination, he has admitted that before holding inquest of the dead body he had not given any information to the Executive Magistrate. P.W. 14 Dr. Purni Maitra had conducted the post mortem report and opined that the death of the deceased might be caused by drowning. In cross-examination he has candidly stated that the dead body was so decomposed that there was no possibility to recognise the body. P.W. 15 Shivlan Kerketta, is one of the witnesses to the inquest report. P.W. 16 Ranjit Bala, is I.O. of this case. In his examination in chief he has narrated that he had conducted the investigation. In cross-examination he has stated that on the basis of an information from Md. Khalek the dead body of the deceased was recovered. According to him, the body was totally decomposed. He admitted in cross-examination that he had not submitted any prayer before the Court for D.N.A. test of the deceased. From his examination in chief and cross-examination, we do not find that chain of circumstances has been established. Even if we assume that the victim was taken away by the accused appellant on 02.10.2014 and ultimately did not turn up that does not mean that the accused had killed the victim. Some sort of clinching evidence was required to be shown by the prosecution. The dead body was found after 10 days from the alleged date of missing. There is no explanation as to why missing diary was lodged after two days. Details of the missing diary was not available in the case diary, which has been stated by the I.O. in his cross-examination. There are various contradictions, omissions in the evidence of the parties. In such circumstances, we are of the view that the prosecution hopelessly failed to bring home the charges against the appellant. In our considered view, prosecution failed to establish the entire chain of circumstances in its proper perspectives and accordingly we have no hesitation to set aside the impugned order of conviction and sentence passed by the learned Additional Sessions Judge, 1st Court, Siliguri, Darjeeling. The convict appellant is hereby acquitted of the charges and accordingly he is also discharged from his bail bond.

Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

Rajiv Sharma, J.—I agree.