Selim S.K. vs The State of West Bengal

Nadira Patherya, J.—This appeal has been filed against the judgment and order of conviction and sentence dated 26th April, 1999 passed by the learned Judge, Special Court (E.C. Act) and Additional District and Sessions Judge, South 24-Parganas, Alipore in Sessions Trial No. 3(8)98 arising out of Sessions Case No. 20(6)98. By the said order the appellant was sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/- in default to suffer further R.I. for six months u/s 302 IPC. The case of the prosecution is that the victim was married to Selim Sk. The victim gave birth to four children and of late the appellant fell in love with another woman as a result of which he did not maintain the victim and children well. The appellant worked at a tea stall at Ekbalpur, Kolkata and the victim went to bring money from the appellant to maintain her family. On 27th March, 1994 she informed her parents that she was going to meet the appellant at the road side. The victim did not return home and on search being made her dead body was found. An FIR was filed on 28th March, 1994, P.S. Case No. 121 dated 28th March, 1994 was started by the Bishnupur Police Station.

On completion of investigation charge sheet u/s 302 IPC was filed. Following commitment case was transferred. Charge u/s 302 IPC framed against the appellant and the same was read over and explained to the appellant who pleaded "not guilty" and claimed to be tried. Trial started before the Additional District and Sessions Judge, Alipore and 13 witnesses were examined by the prosecution and statement u/s 313 CrPC of the appellant was also recorded. On consideration of the oral and documentary evidence the order of conviction and sentence dated 26th April, 1999 was passed u/s 302 IPC.

Being aggrieved by the said judgment and order of conviction and sentence this appeal has been filed.

Counsel for the appellant submits that the evidence given was by interested witnesses. PW 1 the defacto complainant and PW 2 (mother) are the only witnesses who have stated about the illicit relation of the appellant. No other witness has stated about such relation. The father of the victim being PW 3 has not mentioned about any illicit relation of the appellant but shifted the place of occurrence from Duttabagan to Burirpole. No sketch map of the place of occurrence was prepared nor was it found in the C.D., therefore the same was not exhibited.

PW 7 the brother of the victim has stated that when the accused returned to the house at night and called for the victim his mother replied that she had left home to meet him. Therefore the evidence of PW 7 is nothing but hearsay. PW 13 is the I.O., who has specifically stated that the dead body of the victim was recovered from the Bagan of Anil Punja. No attempt was made by the prosecution to examine Anil Punja. PW 1 and PW 2 have stated about the illicit relation between the appellant and another woman and although a panchayat saalish was held with regard to the dispute between the victim and the appellant, no member of the panchayat has been examined. PW 2 mother in her evidence has stated that at night the appellant returned home and called the victim and thereafter he searched for the victim in the surrounding area and also informed her that the victim may have gone to his sister''s house. The appellant had left the house at dawn stating that he would return at 10 a.m.

From the aforesaid conduct of the appellant it shows not only concern for the victim but also what the husband would do in normal circumstance i.e. search for his missing wife. The evidence of PW 1 the FIR maker is nothing but hearsay. This will appear from the cross-examination of PW 1 where he states that he learnt about the incident from the parents of the victim. According to PW 1 the place of occurrence was Duttabagan and according to PW 3 the place of occurrence was Burirpole.

The day and date of the occurrence has not been fixed. PW 2 in her evidence has stated that the appellant came to her house "one day". No specific date of the visit has been given and it would be on any day and her evidence can be termed as nothing but formal. PW 6 in her evidence has stated that on the date before death the victim met her husband i.e. on 26th March, 1994 while PW 10 has stated that two days before her death she met her husband i.e. on 25th March, 1994. PW 7 has stated of "one day", which could mean any date.

As regards the search PW 1 has stated in his chief that he searched for the victim along with the appellant but in the cross-examination has stated that it is only after the recovery of the victim''s dead body that PW 1 came to know of the incident. Therefore there is inconsistency in the evidence of PW 1 and cannot be relied on. PW 2 has stated that the appellant informed her that the victim may be at his sister''s house but no attempt was made to search for the victim at the sister''s house of the appellant. The evidence of PW 3 is not relevant as he was not a member of the search party. PW 6 stated that search was made at night for the victim and that the appellant also went to his sister''s house to bring back the victim. PW 6 has stated that she went to search the victim in the night along with her husband and that the appellant also accompanied them in the search till 3 pm. PW 7 the brother of the victim has also stated that the appellant made a search for the victim along with them. Therefore the appellant has made a search for the victim.

No reliance can be placed on the extra judicial confession made by the appellant as it was made under public pressure as will be borne out from the evidence of PW 8, who has categorically stated that at Bibirhat More a confessional statement was made by the appellant after pressure by the public. PW 6 and PW 7 have also stated about the confessional statement but the same cannot be relied upon in view of the statement of PW 8 and as the extra judicial confession was not made voluntarily.

The conduct of PW 8 is suspicious and although he has stated that he saw the victim with the appellant on the road at 8 PM, he did not participate in the search for the victim. PW 9 is an independent witness and his evidence is nothing but an afterthought. As the chain of circumstances is not complete and last seen together cannot be of any assistance to the prosecution unless it has proved its case the judgment and order of conviction and sentence dated 26th April, 1999 be set aside.

Reliance is placed on the decision reported in Sahadevan and another Vs. State of Tamil Nadu, for the proposition of extra judicial confession and last seen together.

In opposing the said appeal it has been submitted by counsel for the State that the chain of events has been completed and the chain has not been broken in any place. Admittedly the accused and the appellant were married and as borne out from the evidence of PW 2 there was no peace at home as no maintenance was given. This will appear from the evidence of PW 1 and there was no cross-examination on this point therefore the evidence has remained intact. PW 2 and PW 3 have also spoken about the strained relation between the accused and the appellant. That the appellant had an illicit relation with a woman has emerged from the evidence of PW 1 and PW 2. That the victim was to meet the accused on the road is evident from the evidence of PW 2 and PW 6. PW 1''s evidence in this regard is nothing but hearsay as he learnt from the parents of the victim i.e. PW 2 and PW 3 which is not corroborated by the evidence of either PW 2 or PW 3.

The factum of last seen together has been stated not only in the FIR but also in the evidence of PW 8, PW 9, PW 10 and PW 11. PW 11 was named in the FIR and although offered for cross-examination, the same was declined therefore it goes in favour of the prosecution.

The appellant returned home at 11 PM and searched till 3 am. This has been stated by PW 2 and PW 6. He again left at 4 AM this has also been stated by PW 2, PW 6 and PW 7 in their respective evidences and PW 2 and PW 7 on this point were not cross-examined while PW 6 has maintained her evidence even in cross-examination. At 4 AM the appellant left the parental home of the victim but where he went one does not know. That he left at 4 AM is stated by PW 2. He returned at 10 AM by which time the body of the victim had been found. Therefore the chain of circumstances has been completed and the order dated 26th April, 1999 calls for no interference.

Having considered the submissions of the parties there is no eye witness to the murder of the victim. Therefore circumstantial evidence must be relied on and to ascertain whether the chain of circumstances was complete, the chain of events is set-out below.

The accused and the appellant were married and had children. The appellant did not look after his family due to an extra marital affair and he did not maintain the victim properly. He worked at a tea stall in Ekbalpur. He asked the victim to meet him on the road as he would give her some articles purchased. The victim went to the road side to meet the appellant and thereafter did not return home. A search was undertaken till dawn and thereafter accused at about 4 AM left the parental home of the victim and said that he would return at 10 AM. The dead body of the victim was found at Duttabagan. Therefore the chain of events mentioned above is complete and there is no break in the chain of circumstances.

The evidence of PW 1 the FIR maker is nothing but hearsay evidence but PW 2 has stated about the illicit relation of the appellant. PW 3 the father of the victim who though did not go in search of her has stated that the appellant did not supply money to his daughter properly for her maintenance and that in the evening the victim girl went to meet the appellant as per his advice. PW 2, PW 3, PW 6 and PW 7 have all stated that the appellant asked the victim to meet him on the road and as per the evidence of PW 3 on the advice of the appellant the victim went to the road side to collect household articles from the appellant. It is thereafter that the victim did not return and on search the dead body of the victim was found on the next morning at Duttabagan.

The victim was in the company of the appellant, the previous evening at 8 pm. This has been stated by PW 8, PW 9 and PW 10. PW 8 has stated that when he was sitting on the side of the road he found the victim and the appellant proceeding on the road at 8 pm. This is corroborated by the evidence of PW 9 and PW 10. PW 8 is the nephew of the victim and even if he is taken to be an interested witness. PW 9 and PW 10 are independent witness. PW 9 has stated that the appellant was threatening the victim for her late arrival. PW 10 has stated that they were on talking terms. Therefore the victim and the appellant were last seen together and this is an additional link to the prosecution''s case.

The FIR maker in the FIR has also stated about the confession made by the appellant before one Jehangir Mistry (PW 11) and when offered for cross-examination, the defence lawyer declined to cross-examine him. This goes against the defence as there is every possibility that if cross-examined the same would go against the defence.

No attempt was made by the appellant to take the search party to his sister''s house, although PW 2 and PW 6 have stated that the appellant stated that the victim may be at his sister''s house.

As the previous evening the victim was last seen with the appellant, it was incumbent on the appellant to prove the fact which was within his special knowledge with regard to the victim, u/s 106 of the Evidence Act, which burden the appellant has failed to discharge. Therefore in the aforesaid facts the order of conviction and sentence dated 26.4.1999 calls for no interference and the appeal is accordingly dismissed.

Patherya, J.

I agree.