Dasarathi Panda vs The State of West Bengal

Girish Chandra Gupta, J.—This appeal is directed against a judgment dated 9th January, 1990 passed by the learned Metropolitan Magistrate, Calcutta, Juvenile Court, Salt Lake City, Sector-1, Calcutta - 64 in connection with T. R. Case No. 63 of 1982 arising out of section ''M'' Case No. 21 dated 30.1.81 u/s 302/404 of the Indian Penal Code convicting the delinquent appellant of the offence punishable u/s 302 of the Indian Penal Code and sentencing him to simple imprisonment for nine years. The period already undergone was directed to be set off. The delinquent also appears to have been charged u/s 404 of the Indian Penal Code of which he was acquitted.

The facts and circumstances of the case briefly stated are that the appellant, Dasarathi, on 29th January, 1981 came searching for the shop of Brojo and Uma both sons of Kesto Bhuinya. With the help of the local residents, he reached the shop of Brojo which was also the shop of Uma. The dead bodies of Brojo and Uma were found in the morning of 30th January, 1981 in their shoproom and the appellant was nowhere to be found. The appellant was arrested on 12th February, 1981 in the District of Bales war in the State of Orissa by the P.W.21. According to him, he found some injuries on the person of the appellant.

P.W.1 sent the appellant for medical treatment on 13th February, 1981. It appears from the evidence of P.W.18, Assistant Sub-Inspector Subol Chandra Bera, that on 10th February, 1981 he seized a bloodstained shirt together with a sum of Rs. 180/- from the possession of the appellant within the jurisdiction of Chandbali Police Station which is also in Orissa. He also recorded a G.D., which has been marked Exhibit 6, and the seizure list is exhibit 5.

From the G.D. marked exhibit 6 it appears that on 10th February, 1981 the appellant was found loitering in front of a school in a suspicious manner. P.W.18 interrogated the appellant and searched his person whereupon he recovered a sum of Rs. 180/-. The shirt on the person of the appellant was also bloodstained. There is no clear indication as to the further steps taken by Orissa Police. The records reveal that on the basis of a requisition from Calcutta the appellant was arrested on 12th February, 1981 and thereafter the appellant was tagged with the murder of Brojo and Uma and he has been convicted and punished as more fully indicated above.

The records further reveal that the appellant after his arrest on 12th February, 1981 continued to remain in the Presidency Jail upto 22nd April, 1987 when bail was granted. On 11th May, 1987 the bail bond was furnished and the appellant was actually released. On 16th June, 1987 i.e. the date of hearing he failed to appear. The records further reveal that during the Court hours on 16th June, 1987 itself he appeared belatedly along with his father and offered an explanation which was not however accepted by the Court and he was taken into custody then and there. Thereafter he continued in custody till after conviction and bail was granted by the High Court on 9th April 1990 in an application made in the present appeal.

Based on the order of the High Court bail bond was furnished on 20th April, 1990. When the appeal was appearing in the list, no one appeared on behalf of the appellant. We directed the learned Metropolitan Magistrate, Juvenile Court, to take the appellant in custody. He surrendered on 07.2.2009 and thereafter the learned Advocate, for the appellant, appeared before us and prayed for fixation of an early date of hearing and it is on that basis the appeal was fixed for hearing on top priority and has been taken up today.

The learned Trial Judge has recorded that the case is based on circumstantial evidence. The only circumstance proved against the appellant is that the P.W.4, had seen the appellant in the shop of the deceased on 29th January, 1981 between 11.00 P.M. and 11.30 P.M., which is also the evidence of P.Ws. 5. 6. 9 and 11. These witnesses have added that they saw the appellant taking meal together with the deceased. In the following morning the appellant was nowhere to be found and the shop owners namely Brojo and Uma were found dead.

The autopsy surgeon, P.W. 12, who held the post mortem examination of the deceased Uma, found as many as fourteen injuries. The autopsy surgeon, P.W.13, conducted post mortem examination on the dead body of Brojo and found as many as eleven injuries.

A discordant note was however struck by P.W.23, Babaji Charan (sic) stating that on 29th January. 1981 at about 10.00 P.M. the deceased Brojo had come to his shop and informed him that the latter had given some money to the appellant and had also seen him off at the Howrah Railway Station P.W.23, Babaji, was not declared hostile. The evidence of the P.W.23 altogether nullifies the evidence of the witnesses who deposed that they had seen the appellant in the shop of the deceased taking meal with both the deceased persons between 10 p.m. and 11 p.m. on 29th January, 1981.

The learned Trial Judge in holding the appellant guilty advanced the following reasons:

Regarding first argument of the learned defence Advocate I find that the seized ''Da'' is not a blunt weapon and opinion of the medical officers is that the injuries found by them may be caused by this weapon. In that view of the matter I refuse to accept the argument of the learned defence advocate that the injuries found on the persons of the victims cannot be caused by the seized ''Da''. Secondly I am at one with the views of the learned defence advocate that it is very difficult to overpower both the victims by this juvenile accused but the task becomes very easy if the injury was caused when both the victims were lying asleep. Here the circumstance clearly leads to infer that the offence was committed when both the victims were sleeping after taking their night meals. No doubt the motive of the accused for committing the murders have not been unearthed during investigation and so it was not proved during trial. But the fact remains that two persons were found lying murdered with multiple injuries on their persons. Absence of the proof of motive cannot be sole ground to throw away the prosecution case entirely. Lastly, I find that Babaji Charan Bal in his evidence has stated that on 29.1.81 that Brojo disclosed to him that he gave some money to Dasharathi while he accompanied him to Railway Station. He has further stated on 29.1.81 at 10.00 or 10.30 P.M. Brojo Bhuinya came to him and disclosed that he took Dasharathi at Howrah Station on that date as Dasharathi was weeping before him. Brojo Bhuinya from whom this P.W. Babaji Charan Bal came to learn that child accused was boarded in a train at Howrah Railway Station is no more in the world. In absence, of Brojo Bhuinya it is not possible to verify the evidence of this P.W. Babaji Charan Bal. If I am to believe this witness the evidence of the witnesses who saw the child accused at 10/10.30 p.m. in the night in the shop of the victim persons is to be disbelieved. I find that the P.W. Babaji Charan Bal is an Oria and the victims and the child accused are also Oria and all of them hail from the same native village of Orissa. From the above facts it is clear that this P.W. Babaji Charan Bal is a highly interested witness for the defence. It is therefore apparently clear that this witness tried to save the child accused who is his co-villager. No doubt it was the duty of the prosecution to declare this witness hostile while he supported the defence version. It is only the prosecution who knows very well why the witness was not declared hostile. But for this lacuna for the prosecution, I refuse to act upon the sole testimony of the interested witness P.W. Babaji Charan Bal. On the other hand a large number of witnesses some of whom are neighbours and some of whom are shopkeepers of the locality have stated categorically that they found the child accused in the shop of the victims till at night 10.30 when they closed the shop from inside the shop after taking night meals. The evidences of the local people to the effect that they saw the child accused. The evidence of the local people to the effect that they saw the child accused inside the shop in the night and they also saw him to take his night meal with them and to remain inside the shop closing the door at about 10.30 in the night have not been shakened during their cross-examination. I find no reasonable ground to disbelieve the evidence of P.W. Suprokash Mondal, Nemai Mondal, Uttam Kumar Mondal, Chanchal Bhabak, Subal Chandra Mondal, Samita Mondal and Narayan Mondal and others.

The witnesses identified the child accused in T.I. parade before the learned Magistrate. Almost all these witnesses examined in this case identified the child accused as the person who during day time on 29.1.81 was found to search the shop of victims and thereafter he was found inside the shop. Brojo Bhuinya introduced the child accused to those witnesses a boy of his native village who has come in search of a job. The P.W.8 Goutam Das has stated before the Court that he found the victim Uma was engaged in selling cigarette and other articles and at that time this child accused was found sitting inside the shop of Brojo. He has further deposed that he asked Brojo who was the said man namely the accused and to that Brojo replied that accused was his neighbour and had come there in search of a job and the accused would stay with them for 3/4 days and Brojo asked him to provide the accused with a job in their factory. He has also deposed that he found them to talk amongst themselves in Oria languages. The evidence of P.W.5 Uttam Kumar Mondal is that on 29.1.81 at about 11.00 P.M. Brojo, Uma and this accused went to sleep inside the shop of Brojo by closing the shop. His further evidence is that at 10/or 10.30 P.M. Brojo, Uma and this took their night meal inside the shop.

Evidences of the public witnesses is that on the next morning they found the door of the shop was locked from outside and peeping through the door they found Brojo and Uma were lying in pool of blood. Police was informed and thereafter the police and the public entered the shop breaking open the padlock and it was seen that both Brojo and Uma were lying dead with multiple injuries on their persons.

From the other evidences on record it is amply clear that both the victim brothers took their night meal along with the child accused inside the shop as usual and thereafter all these persons went to sleep after closing the door. But in the next morning the room was found locked and it was detected that the child accused was not inside the shop. The child accused who was scheduled to stay the shop for three/four days in search of job. But the accused has taken an alibi that he was taken to Howrah Railway Station by Brojo on the same night and he was boarded in a train which left Howrah Station at about 8.00 P.M.

Defence adduced no evidence to support the alibi taken by the accused None was examined by the defence to support that the child accused was seen at 8.00 P.M. in the Howrah Station or he was found travelling in the train which carried him to Bhadrak on the same night. I failed to understand what compelled the accused to leave the shop of the victim on the same night when he came to that shop on the same day and it was scheduled that he would stay there for 3/4 days and the local people was approached to provide him with a job. On the next morning the wearing apparels of the child accused i.e. Dhuti, Chaddar and Sweater were recovered from a nearby pond. Public witnesses examined in this case in chorus voice identified those apparels which were found on the person of child accused.

All these circumstantial evidence taking together lead to infer that die child accused was inside the showroom along with the victims in the night and while the victims fell asleep the child accused committed murder of both the Bhuinya brothers hitting them with the help of ''Da'' which was seized by police from the place of occurrence and thereafter hiding his wearing apparels in the nearby pond he fled away from that shop.

No doubt the motive of the alleged murder has not been proved by the prosecution. The motive of an act is known to him and him alone and prosecution cannot suggest what is or may be the motive. Evidence of motive in my opinion in this case is immaterial as there is sufficient evidence to connect the accused with the offence committed.

The learned Advocate for the defence has urged that there would be scuffling while the alleged incident took place and thereby local people would have gathered at the seen of occurrence. But the fact is that local people did not assemble at the place of occurrence at the point of time while the brutal murder of both the brothers actually took place. This fact leaves no doubt to hold that the accused gave no scope to the victim persons to raise any shout. In this connection Ext. 6 is very important piece of documents which is an extract from the G.D. No. 131 dated 10.3.81 of Arodi Police outpost, Orissa. The said G.D. entry disclosed under which condition a child was arrested by the police of Orissa. It appears from exhibit 6 that he was arrested when his movement appeared to be suspicious to the police and when he could not give any satisfactory explanation to the police. The police noticed out injuries on his person, which were heeling up. It was also noticed a bloodstained shirt was on his person. These cut injuries and bloodstained shirt suggest that the child accused got some resistance while he committed the murder.

The wearing apparel of the child accused were a shirt and a full pant and according to the prosecution this shirt and pant were given to Uma Bhuinya by a man of Satchasi Para Road. The tailor who stitched this shirt identified it seeing the label "Elit" which was fixed by him upon the shirt while tailored by him. I do not attach much importance upon this pant and shirt as those were not shown for identification before the police of Orissa who seized it under seizure list.

Considering the evidence on record I am of the opinion that the prosecution has been able to prove beyond reasonable doubt that the accused person Sri Dasharathi Panda committed murder of Brojo Bhuinya and Uma Bhuinya and therefore he is guilty u/s 302 of the IPC.

Mr. Khan, the learned Advocate appearing for the appellant, submitted that the judgment of the learned Trial Court is wrong both on facts and law. According to him when a case is based on circumstantial evidence the circumstances have to be such so as to leave no doubt in the mind of the Court that except for the accused no one else could have committed the murder. In the present case, the evidence of the prosecution witnesses as regards the very presence of the accused at the place of occurrence is shrouded in uncertainty. The murder of two persons by a child of 16 years with so many injuries is also improbable. Except for the evidence of the witnesses who deposed that they had seen the appellant in the shop of the deceased between 10 and 11 P.M. on 29th January, 1981 there is no evidence before the Court of an incriminating nature against the appellant. He submitted that the evidence of P.W.18 Assistant Sub-Inspector, who came from Orissa to give evidence, is not believable for the simple reason that the doctor to whom the accused was allegedly sent for examination has not been examined. The bloodstained wearing apparels of the accused allegedly seized were not sent to the Forensic Science Laboratory. The evidence of the autopsy surgeons is that some amount of scuffling during the act of murder must have taken place. If there was scuffling the victim would naturally cry for help which would have attracted attention of the neighbours. He, therefore, submitted that it is really a case of no evidence and the learned Trial Judge was utterly wrong in convicting the accused. The unfortunate part, he added, is that the accused, a juvenile, was made to undergo imprisonment for seven long years. He submitted that not only the appeal should be allowed but also damages against the State should be awarded in order to remove the stigma levelled against the appellant.

Mr. Mondal, the learned Advocate, for the State, did not make any attempt to support the judgment. He submitted that there could be no denial of the fact that the case of the prosecution was very weak.

Mr. Mondal further submitted that it is surprising that the evidence of the P.W.18 that the appellant was found to have injuries on his person was not even put to the appellant during his examination u/s 313 of the Code of Criminal Procedure.

Considering the submissions advanced by the learned Advocates, appearing for the parties we are of the view that there is a lot of force in the submission advanced by Mr. Khan. The chain of circumstantial evidence is not complete by any means. As a matter of fact, the involvement of the appellant in the crime is gravely in doubt. We, therefore, have no option but to allow the appeal.

The appeal accordingly succeeds. The judgment and order of conviction and sentence passed by the learned Trial Court are set aside. The appellant accused is acquitted of the charge framed against him. The appellant is now in judicial custody. The appellant Dasarathi Panda should be released at once if his presence is not required in connection with any other case.

It will be open to the appellant to seek appropriate relief claiming damages against the State by independent proceedings.

Criminal section is directed to communicate this judgment along with the lower Court records to the concerned learned Trial Court forthwith for information and necessary action.

Urgent xerox certified copy of this judgment, if applied for, be delivered to the parties upon compliance with all formalities.

Kishore Kumar Prasad, J.

I agree.