Sankari Jana vs State Of West Bengal & Ors.

Joymalya Bagchi, J.

The Appeal is directed against judgment and order dated 15.06.2015 and 16.06.2015 passed by learned Additional Sessions Judge, 1st Court, Contai,

Purba Medinipore in Sessions Trial No. 01 of Dec, 2008 arising out of Sessions Case No. 29/April/2008 convicting the appellant under Section 302 of

the Indian Penal Code and directing him to suffer rigorous imprisonment for life and to pay a fine of Rs.5000/-, in default, to suffer further rigorous

imprisonment for six months.

The prosecution case as alleged against the appellant is the effect that on 01.12.2006 around 5 P.M. one Sushila Jana (PW 3), grandmother of the

victim, Triptesh Jana, could not find the victim and started searching for him. She asked about his whereabouts from the appellant Smt. Sankari Jana,

stepmother of the victim. Sankari initially replied she did not know. Thereafter, other neighbours joined in the search. When the neighbours queried

Sankari she stated that the victim may have fallen in the pond. Neighbours searched the pond but could not trace out the victim. Thereafter, the dead

body of the victim was recovered below the staircase of the house occupied by Sankari. The victim was taken to Kamarda B.P.H.C where he was

declared dead. One Asutosh Jana lodged written complaint resulting in Khejuri PS Case No.61 of 2006 dated 02.12.2006 under Sections 302/201 IPC

against Sankari Jana, the appellant.

In conclusion of investigation charge sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of Additional

Sessions Judge 1st Court, Contai, Purba Medinipore for trial and disposal. Charge was framed under Section 302 IPC. The appellant pleaded not guilty

and claimed to be tried. Prosecution examined fifteen witnesses and exhibited a number of documents. The defence of the appellant was one of

innocence and false implication. In conclusion of trial, the trial Court by judgment and order dated 15.06.2015 and 16.06.2015 convicted and sentenced

the appellant, as aforesaid.

Mr. Basu, along with Mr. Ganguly, learned Senior Advocates appearing for the appellant submitted that none of the prosecution witnesses including

the first informant supported the prosecution case. They submitted that none of the circumstances relied upon by trial Judge to convict the appellant

has not been proved beyond reasonable doubt. Evidence of PW 5 is highly unreliable as he was neither examined in the course of investigation nor his

presence at the place of occurrence has been noted by other witnesses or in the FIR. They, accordingly, prayed for acquittal of the appellant.

Mr. Ahmed, learned Advocate appearing for the State submitted that the evidence of PW 5 clearly establishes the prosecution case beyond

reasonable doubt. His deposition shows that the appellant had given a false explanation with regard to the victim and that the dead body of the victim

was recovered from her house. That apart, she also made a confession and pursuant thereto the rope used to strangulate the victim was recovered.

Accordingly, the appeal is liable to be dismissed. Let me examine the rival versions in the light of the evidence on record.

It appears that none of the prosecution witnesses, apart from PW 5, Balaram Das, has supported the prosecution case. PW 1, Ashutosh Jana

disowned the written complaint treated as first information report and stated that he had signed on a blank paper. He however deposed that the

appellant is the third wife of Dipak. Dipak had a son named Diptesh, from the first wife. Triptesh, another son of Diptesh, was born from his second

wife. Both the wives of Dipak are dead. He also deposed that the appellant resided with Dipak in the house which is a single storied building. There is

a staircase in the house leading to the roof. Dipak, his wife Sankari and his two sons used to live in the said pucca structure. Sankari used to live in the

house alone when Dipak went outside. Dipak’s mother resided in a separate house near Dipak’s house.

PW 2 Sushila Jana, grandmother of the victim, was also declared hostile. She stated that Triptesh used to stay with Dipak and his wife during daytime

and used to come and sleep with her at night. On the date of the incident Dipak was not in the house. She could not say where Triptesh had gone

after returning from school. She was also unable to say where the dead body of Triptesh was found. PWs.3, Prasanta Jana, 4, Biswarup Jana, 6,

Usha Jana, 7, Sonali Jana and 12, Ajit Maity are the co-villagers of the appellant. They did not support the prosecution case. They however admitted

that they had seen the dead body of the victim in the hospital. P.W 3 further stated that he signed on a paper Ext. 3 as per instruction of Police.

PW 5, Balaram Das is the only witness who supported the prosecution case. He deposed that on the day of the incident in the afternoon Triptesh

went missing. His grandmother started searching for him. Co-villagers also joined the search. During such search the appellant asked them to search

in the pond. Subsequently, the victim was recovered below the staircase in the house of Dipak where the appellant used to reside. He was taken to

hospital where he was declared dead. Marks of violence were found on the throat of the victim. The following morning police came. The appellant

was kept confined in the house of Prasanta Jana, an agnate of Dipak. In the presence of police the appellant confessed his guilt. A rope was found

lying on the cot in the house of the appellant. Police seized that rope. He signed on the seizure list (Exbt. 3/1). In cross-examination, he, however,

admitted that he had not been examined by the police. He was the Secretary of the local Krishak Sabha.

PW 8, Dr. Pradip Kr. Pradhan is the post-mortem doctor who conducted post-mortem on the dead body of the victim. He found the following injuries:

1) Ligature mark, continuous without knot over the neck in front of hyoid bone.

2) On dissection fracture of hyoid bone was noted.

3) Stomach contained 5 ounce of food material, acidic in nature.

4) All the organs were found congested.

He deposed that the death was due to asphyxia as a result of strangulation which is ante mortem and homicidal in nature. He proved the postmortem

report (material exhibit 4). PWs.9, Sasanka Shekar Pramanick and 10, Bikash Maity are the police officers, who signed on the seizure list relating to

seizure of wearing apparels of the victim. PW 11, Sidhanshu Sekhar Layek received the written complaint and drew up the formal FIR (Exbt.6). The

case was endorsed to S.I. Gurupada Pati for investigation.

P.W. 14, Dr. Subrata Hazra conducted the inquest of the victim at the hospital and he proved the inquest report.

P.W. 15, Arbinda Mishra is a civil judge who recorded the statements of Diptesh Jana and Sushila Jana under Section 164 Cr.P.C. Analysis of the

prosecution case shows that the case is based on circumstantial evidence. The trial Judge has relied on the following circumstances to record a finding

of guilt against the appellant:-

(1) The disclosure statement of the accused Sankari before the neighbourssoon after the occurrence in the form of extra-judicial confession to the

effect that she killed Triptesh by strangulation and the body of the deceased Triptesh was found lying below the staircase of the house premises of the

accused.

(2) Mark of violence was detected on the throat of the deceased.

(3) A rope was found on the cot of the accused.

(4) At the relevant point of time there was none besides the accused athome where the incident happened and the deceased was alive in the company

of the accused.

(5) The expert evidence, namely the evidence of the autopsy surgeon hereinPW-8 is very much positive about the cause of death due to asphyxia

resulting from strangulation which is homicidal in nature. It is trite law that in a case based on circumstantial evidence the circumstances relied on by

the prosecution must not only be proved beyond reasonable doubt but they must form a complete chain which unerringly point to the guilt of the

accused and rules out any other probable hypothesis to the contrary [See Sharad Bindichand Sharda vs State of Maharashtra, (1984 SCC (Cri) 487 at

para 153].

Let me apply the aforesaid principle of law to the facts of the instant case. Firstly, I am constrained to hold that circumstance no. 1, namely, the

confessional statement of the appellant relied on by the trial Judge cannot be said to be an admissible piece of evidence and the judge appears to have

incorrectly relied on such circumstance. P.W. 5 stated that after the discovery of the dead body of the victim the appellant had been confined in the

house of a relation of her husband and on the next day she had made a confessional statement in the presence of police officer. It is trite law that a

confessional statement made by an accused in the presence of police is inadmissible in law in view of Sections 25/26 of the Evidence Act. Hence, I

am constrained to hold that reliance on the confessional statement made by the appellant while she was in confinement in the presence of police

officer is clearly impermissible in law and ought not to have been relied upon to bring home the guilt of the appellant.

It has been argued that the weapon of offence namely, a rope was recovered pursuant to the leading statement of the appellant. It is pertinent to note

that the investigating officer in the instant case has not been examined. P.W. 5, who is a signatory to the seizure list, is completely silent with regard to

the seizure of the rope pursuant to the leading statement of the appellant. It is also pertinent to note that the aforesaid circumstance, that is, discovery

of the rope pursuant to the purported leading statement of the appellant has not put to her during her examination under Section 313 Cr.P.C.

Accordingly, I am of the opinion that the said circumstance cannot be utilised to bring home the guilt against the appellant.

Mr. Ahmed, learned counsel for the State strongly relied on the evidence of P.W. 5 that the appellate gave a false statement with regard to the

whereabouts of the victim and thereafter his dead body bearing marks of injury was found under the staircase of the house occupied by the appellant.

He also argued that on the date of occurrence no other adult member was present in the house. Hence, the said circumstances leave no doubt in

one’s mind that the appellant had committed the murder of the victim.

I would have been otherwise persuaded to rely on the said circumstances to come to a finding of guilt of the appellant but for the fact that the

aforesaid circumstances are based on the uncorroborated sole testimony of P.W. 5. It is important to note that no other witness has supported the

aforesaid version coming out from the mouth of P.W. 5. Furthermore, P.W. 5 was not examined during investigation and deposed for the first time in

court. None of the prosecution witnesses have stated about the presence of P.W. 5 at the place of occurrence. Even the first information report

(Exbt. 1) is completely silent as to the presence of P.W. 1 at the spot.

It is trite law that a conviction can be based on the sole testimony of a witness provided it is found to be wholly credible and reliable in the facts of the

case. I am unable to come to such conclusion with regard to the evidence of P.W.1 as the said witness case had not only deposed for the first time in

court but his presence at the place of occurrence is also not noted by the other witnesses or in the first information report. In the light of the aforesaid

discussion, I am inclined to extend the benefit of doubt to the appellant and she is acquitted of the charge levelled against her.

She shall be released from the custody forthwith upon execution of a bail bond to the satisfaction of the trial court which shall continue for six months

in terms of Section 437A of the Code of Criminal Procedure.The appeal is allowed.Copy of this judgment along with the lower court records be sent

down to the trial court at once.Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.