Shyamal Chatterjee vs State of West Bengal

Indira Banerjee, J.—This appeal is against a judgment and order dated 29th September, 2010 passed by the Additional District and Sessions Judge, Fast Track, Court-1, Amta, Howrah in Sessions Trial No. 34/09 arising out of Amta P.S Case No. 47/05 whereby the appellant has been held guilty and convicted of offence under Section 302 of the Indian Penal Code and an order of sentence dated 30th September, 2010 whereby the appellant has been sentenced to imprisonment for life and to fine of Rs. 10,000/- in default whereof he is to suffer rigorous imprisonment for one year more.

On the basis of a First Information Report filed by one Shri Dilip Ghosh, resident of Amta Neogi Para, Amta Police Station Case No. 47/05 dated 24th May, 2005 was started. The contents of the FIR are set out hereinbelow for convenience:

"It is to inform you today on 24/05/2005 at 10 am that after returning at my locality from my duty at 9:30 am, I got to know as I and other people of our locality were told by our neighbor Shamal Chatterjee of Amta Niogi Para, that Shamal''s elder sister Mita Rao aged 42 years, w/o late Sattam Rao, was laid blooded on the floor of her bed room. Then I entered her room and saw that she was laying dead in her room and there was a deep blooded injury mark on her head. One or more than one killed her striking her head with a sharp weapon.

Therefore, I request you to take necessary action and to investigate the incident and oblige."

The case was started as an unnatural death case. After the investigation, however, a charge sheet was issued charging the appellant with murder of his sister, Mita Rao, aged about 42 years with a ''katari'' in her own bedroom in the house where the appellant and the deceased resided, along with other members of the family.

The 1st Prosecution Witness, Dilip Ghosh, who lodged the FIR, stated in his evidence that, the appellant had told him that his sister, Mita Rao was lying dead in a pool of blood in her own bed room in the house of the appellant. On hearing this, this witness went to the house of the appellant and found that Police had already reached there and Mita Rao was lying dead in a pool of blood. This deponent stated that he could not say who had murdered Mita Rao, but added that he had later come to know that the appellant had murdered his sister.

This deponent deposed that Police had seized the "offending katari and the wearing lungi" of the accused person in his presence under a seizure list and he identified the seized ''katari'' and the ''lungi''. This witness did not, however state that the ''katari'' and the ''lungi'' were seized from the room of the appellant. He in fact did not say where exactly the ''katari'' and the ''lungi'' were found. In cross-examination this witness stated that as per the advice of the Police, he had drafted the complaint in the Police Station. He could not say what kind of weapon had been used for the offence. He guessed that it could be ''katari'' or ''sword'' or ''bhojali''.

The 1st Prosecution Witness also stated in cross examination that he had no idea of the particulars of the family members of the deceased. He had never seen the husband of the deceased. He had no knowledge of whom the deceased had married or where he resided. He also stated that the seized ''katari'' did not bear any seal, label or signature and such ''katari'' was available in the open market. The seized ''lungi'' also did not bear any seal, label or signature and the same was available in the open market.

The 2nd Prosecution Witness also stated that the appellant had informed him about the death of his sister after which he saw the deceased lying dead in a pool of blood. She was bleeding profusely. This deponent stated that though the appellant and the deceased were brother and sister, they did not have good relationship with each other. He later came to know that the accused appellant had murdered the deceased. He did not disclose the source of such knowledge. He identified his signature on a seizure list under which pillows, blankets, bed sheets etc. had been seized. This deponent stated in cross-examination that he came to know from the Police that the deceased had been murdered by the accused appellant.

The 3rd Prosecution Witness deposed that the appellant resided with his mother, the deceased, his sister, another sister and the son of the deceased namely, Buo. He stated that there were frequent quarrels amongst the family members. He did not, however specify which of the family members quarrelled. This deponent stated that he had, after the arrest of the appellant, heard from the neighbours that Mita Rao had been murdered by the appellant.

The 4th Prosecution Witness more or less reiterated what the Third Prosecution Witness had stated. This deponent stated, in evidence that his house was close to the appellant''s house but he did not say exactly how close. This deponent stated that there used to be general family quarrels and except that there were general family quarrels, this deponent had no knowledge of the family affairs of the accused appellant.

The 5th Prosecution Witness was the witness to seizure of wearing apparel, samples of nail, hair of the deceased and post mortem blood of the deceased etc. The 7th Prosecution Witness was witness to the seizure of the blood stained pillows, one blanket, one blood stained bed sheet and a lock (six lever) of Biki Company. The evidence of these witnesses is of no relevance to the issue of whether the appellant is guilty of the offence.

The 6th Prosecution Witness stated that the police had seized a blood stained ''katari'' with wooden butt measuring about 14" including the butt, one blood stained green check cotton ''lungi'' of Shyamal Chatterjee under a seizure list on which he put his signature. This witness did not say that the items were seized in his presence. He did not state where the items were found. He did not say that the items were seized in the presence of the appellant.

The 8th Prosecution Witness, an ASI of Amta Police Station deposed that police seized some articles as per seizure list dated 25th May, 2005 (Exhibit 6) and he put his signature thereon. In cross-examination he stated that the seizure list was made at the Police Station.

The 9th Prosecution Witness, also an ASI of Police at Amta Police Station, only took custody of still photographs of the dead body with negatives under a seizure list on which he identified his signature. The 10th Prosecution Witness, a driver of the Police Station also identified his signature in the seizure list in respect of the said still photographs and negatives. Nothing more could be known from him. The evidence of these three witnesses is not relevant to the issue of whether the appellant is guilty of the offence of which he has been charged.

The 11th Prosecution Witness, a Senior Scientific Officer of the Forensic Science Laboratory where the ''Katari'', the blood stained ''lungi'' and post mortem blood sample of the deceased were sent for examination, stated that the ''katari'' blade and the wooden butt in the sealed parcel marked ''A'', bore dark brown stains. Scrapings and swab in cotton wool were collected from the ''Katari'' blade for serological tests. He stated that the card board box marked ''B'' contained brown based black white checked partly torn unstitched ''lungi'' bearing dark brown stains at many places said to be blood stained ''lungi'' of the appellant. Significantly, the PW No. 6 stated in his evidence that the ''lungi'' which was seized in his presence was green with checks. The cardboard box marked ''C'' contained a jar with substance stated to be the post mortem blood of the deceased Mita Rao.

The 12th Prosecution Witness was the doctor who held the post mortem examination over the dead body of the deceased. He had found injuries from a sharp cutting edge over the left cheek, forehead and parietal bones. He opined that the death was due to shock, haemorrhage and multiple injuries which were ante mortem and homicidal in nature. Such injury could be found if a blow was given by a ''katari'' and was sufficient to cause death. His evidence only establishes that the death of the deceased was homicidal.

The 13th Prosecution Witness, ASI of Police, recorded the FIR and started Amta Police Station Case No. 47/05 dated 24.05.2005. The 14th Prosecution Witness who was the investigating officer stated that he collected the Forensic Serological Report and after completion of investigation submitted charge-sheet against the accused appellant. This witness did not examine anyone. He only submitted the charge sheet.

The 15th Prosecution Witness, a Sub-Inspector of Police, stated that he had investigated the case. In course of investigation, he visited the place of occurrence, recorded the statements of witnesses, prepared rough sketch map with index and held inquest over the dead body.

From the evidence of this witness, it transpires that this officer seized various articles from the room of the deceased. This deponent stated that he seized a blood stained ''katari'' with wooden butt measuring about 14 inches and also recovered one ''lungi'' of the appellant from the appellant''s room. He stated that the ''katari'' was recovered from a shelf of the room of the accused appellant, where it was concealed. He stated that he recovered the seized article in terms of the statement of the accused appellant just after his arrest but before his production in Court. He stated that the articles were recovered as per identification of the accused appellant. He stated that he prepared the seizure list in the presence of the accused and other witnesses. He also stated that he had seized some articles at Amta Police Station as produced by constable Ajit Kumar Jana after the post mortem examination. He did not, however, state that he seized the ''katari'' in the presence of the accused appellant. None of the witnesses have stated that the ''katari'' was seized in the presence of the appellant from the spot shown by the appellant.

From the evidence of this witness it transpires that on investigation he came to learn that the deceased had income by lending money. He also ascertained that the accused appellant used to have arguments with the deceased for money but the deceased did not give him money.

According to this witness he also came to know that the appellant had asked the deceased to vacate the room, which was used by the deceased, so that he could open a coaching centre to generate income, but the deceased refused to shift from the room. This witness stated that he did not "get any mens rea". In the inquest report the son of the deceased put his signature. This deponent further deposed that during the investigation he came to know from the son of the deceased that the son of the deceased used to sleep in the same room as his mother, but for two or three days prior to the incident he had not slept in the same room as his mother.

In cross-examination this witness admitted that he did not examine the mother or the younger sister of the appellant and the deceased who resided in the same house with the accused and the deceased.

The evidence of the Prosecution Witness No. 16, a police officer and the Prosecution Witness No. 17 a photographer, who took photographs of the dead body are not relevant to the question of whether the appellant was guilty of the offence.

The accused appellant was examined under Section 313 of the Criminal Procedure Code. He stated that his elder sister Mita Rao resided in his residence along with her son. He denied the suggestion that he was involved in altercation with her over domestic matters and he asserted that this was false. He stated that he used to run the family. He admitted that he had informed neighbours about the death of his sister. He also stated that a few people came to the house and saw his elder sister lying in her room. The appellant categorically denied that he had murdered his sister. He stated that he was totally innocent. The appellant denied having given any statement which led to the recovery of any ''katari'' or blood stained ''lungi''. He stated that his signature had been taken on blank paper.

Question No. 8 is as follows:-

"P.W.-15 also revealed in his statement that he along with you went into your room on 24.05.05 and you brought out a blood - stained 14" long Katari with a wooden handle which was kept hidden in a shelf of your room. Do you want to say anything in this matter?

The appellant answered "I don''t know about any ''Katari''."

Significantly, the Prosecution Witness No. 15 has not in his evidence stated that he went to the room of the accused appellant along with the accused appellant. None of the witnesses have stated that the ''katari'' was seized in the presence of the accused appellant.

In response to question No. 9 in his examination under Section 313 the accused appellant denied having given any ''lungi'' to the police. He stated in reply to question No. 10 that he was made to sign on a blank sheet. In response to question No. 12 he stated that he was completely innocent and that he had been framed. Significantly there is difference in the colour of the ''lungi'' which was seized and the ''lungi'' which was received in the Forensic Science Laboratory for serological examination, as will appear from the evidence of the PW 6, a seizure witness and the PW 11, the Senior Scientific Officer of the Forensic Science Laboratory.

The evidence on record establishes beyond any iota of doubt that the deceased had been killed with a sharp edged cutting object. She was lying in a pool of blood. Bedding and other articles were blood stained.

It transpires that there were no eyewitnesses to the incident. The surathal report reveals that the doors and windows were locked from inside. However, it is apparent that someone had accessed the room and moved out again as otherwise the deceased could not have been killed with a sharp cutting object.

The son of the deceased has not made any allegation against the appellant nor given any evidence in Court. The Investigating Officer (PW 15) as per his own evidence, did not even examine the mother or the sister of the deceased and the appellant who resided in the same house. In the absence of any eyewitness, in the absence of any acceptable evidence of any enmity between the appellant and the deceased, his own sister, in view of the fact that the nephew of the appellant being the son of the deceased has not made any complaint against the appellant or given any evidence in Court, we are of the view that the accused appellant would have to be given the benefit of doubt.

It is true that an accused may be convicted on the basis of circumstantial evidence, but there should be a strong link in the chain of circumstances which leave no room at all for the possibility that the accused might not be guilty of the offence and that some other person may have committed the offence.

In the case of Brajendrasingh Vs. State of Madhya Pradesh, the Hon''ble Supreme Court observed as follows:-

"It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The Circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic canon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial.

It is a settled rule of law that in a case based on circumstantial evidence, the prosecution must establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility."

The learned Sessions Court found that the doctor had confirmed the cause of death. The doctor only opined that the death was homicidal. However, in course of his examination in Court the doctor was not shown the weapon and asked whether the injury suffered by the deceased could be caused by the weapon and whether the weapon could cause death.

The learned Sessions Court found that the evidence of Prosecution Witness No. 1 to 4 revealed that family dispute frequently occurred in the house of the appellant. However, mere family quarrels which are common do not ordinarily lead to gruesome murders specially murder of his own sister.

There is nothing in the evidence of the Prosecution Witness Nos. 1 to 4 from which it can be concluded that there was any serious difference or enmity between the deceased and the appellant. The 1st Prosecution Witness, a neighbour living in the adjacent house did not say anything about any quarrel in the family of the appellant and the deceased.

The 2nd Prosecution Witness made a vague statement that though the appellant and the deceased were brother and sister, they did not have good relationship with each other. This witness stated that he could not say anything about the family affairs of the deceased.

The 3rd Prosecution Witness, also a neighbour living in the house behind the house of the appellant deposed that there was frequent quarrelling between the family members of the appellant. As a neighbour, this deponent heard such quarrels but did not intervene in family affairs. This deponent did not say that the appellant frequently quarrelled with the deceased or vice versa. He stated there were intermittent quarrels amongst the family members. In cross-examination, this witness deposed that the appellant maintained the family. He stated that the appellant was known to be a good man in the locality and used to coach students privately. After the arrest of the accused, the people of the locality told him that the appellant was a murderer.

The 4th Prosecution Witness deposed that except general family quarrelling, he had no knowledge of the family affairs of the appellant. This witness stated that there were quarrels between the appellant and the deceased, but nothing more. This deponent also confirmed that the appellant used to maintain the entire family.

It is rather difficult to conceive how, on the basis of such evidence, the Sessions Court could have held there were such serious disputes between the deceased and the appellant with regard to money or with regard to possession of the room, from which it could be concluded that the accused had a motive for committing murder of the deceased. There is not a whisper in the oral evidence of the Prosecution Witness Nos. 1 to 4 of any demand for money made by the appellant to the deceased or of any demand by the appellant to the respondent to vacate the room occupied by her.

The learned Sessions Court has given emphasis on the evidence of the Investigating Officer, that is, the Prosecution Witness No. 15 that he had ascertained that there was altercation before the incident. However, there is no evidence at all of any altercation just before the incident. Most of the witnesses knew nothing of the incident until they were told about the incident. They stated nothing about the family. Only vague assertions were made of frequent fights, which are common in many houses. The witnesses did not even specifically state that they saw the appellant quarrelling with the deceased or vice versa.

The Prosecution Witness No. 15 also did not state who exactly told him that there was altercation prior to the incident. The person who gave such information to the Investigating Officer was not examined in evidence. In any case, it is well settled that statements if any under Section 161 to the police are inadmissible in evidence and can only be used for contradicting a witness. Reference may be made to State (Delhi Administration) Vs. Laxman Kumar and Others, .

The Sessions Court found that the blade of the ''katari'', cotton swab and ''lungi'' cuttings were stained with human blood and the blood group of the blood in the ''lungi'' was of the ''O'' group but the Serologist did not determine the blood group of the blood on the ''katari'' and other seized articles due to insufficiency of blood.

The Sessions Court concluded that recovery of the blood stained offending weapon and wearing ''lungi'' of the accused with blood stains as per statement of the accused had been proved, or rather, admitted by the defence. However recovery of weapon or any other article is inconsequential in the absence of evidence regarding the disclosure statement. Reference may be made to Bhimappa Jinnappa Naganur Vs. State of Karnataka, . There is no evidence of the statement of the appellant.

The finding of the learned Sessions Court that recovery of the ''katari'' or the ''lungi'' on the basis of the statement of the appellant had been admitted is not only without basis, but contrary to the materials on record. In the examination under Section 313 of the Criminal Procedure Code the appellant categorically denied that any recovery was made on the basis of his statement. He denied knowledge of recovery of any ''katari'' and he stated that his signature had been obtained on blank paper.

The learned Sessions Court itself found from the documents and evidence on record that the blood group of the blood on the ''katari'' could not be determined for insufficiency of blood. If the same ''katari'' had been used for killing the deceased there would possibly have been more blood on the ''katari''. This indicates that if there was any blood on the ''Katari'' that was negligible.

If the appellant had concealed the ''katari'' because he had used it for killing his sister he would in all likelihood washed and have cleaned the ''katari'' before concealing it. If the ''katari'' had been washed there would be no blood at all on the ''katari''.

Analysing the evidence, we find that the whole prosecution edifice is built on the alleged statement of the appellant leading to the recovery of the alleged offending weapon and other articles.

Section 25 to 27 of the Indian Evidence Act provides:-

"25. Confession to police officer not to be proved - No confession made to a police officer shall be proved as against a person accused of any offence."

Confession by accused while in custody of police not to be proved against him. - No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

As held by the Supreme Court in Sk. Yusuf Vs. State of West Bengal, , the Court while dealing with a circumstance of extra-judicial confession must keep in mind that it is a very weak type of evidence and requires appreciation with great caution. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witness must be clear, unambiguous and clearly convey that the accused is the perpetrator of the crime.

The "extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility" as held by the Supreme Court in State of Rajasthan Vs. Raja Ram, and Kulvinder Singh and Another Vs. State of Haryana, .

As observed above, there is no evidence at all that the ''katari'' was recovered from the place shown by the appellant. The independent witnesses who were signatories to the seizure list prepared at the time of seizure of the ''katari'' did not state that the accused appellant was brought to the place where the ''katari'' or the ''lungi'' were found. Nor did they state that the ''katari'' and the ''lungi'' were seized in presence of the appellant, from the place shown by the appellant.

As observed above, comparative analysis of the evidence of the seizure witness (PW 6) and the Senior Scientific Officer of the Forensic Laboratory (PW 11) reveals difference between the colour of the ''lungi'' that was seized and the ''lungi'' sent for serological examination. While the independent witness and signatory to the seizure list stated that the ''lungi'' was a green checked one, the witness from the Forensic Laboratory stated that he had received a brown, black and white checked ''lungi'' which had been sent for serological test to the laboratory. Furthermore, there is no evidence which establishes that the blood on the ''lungi'' was the blood of the deceased.

From the evidence of the Investigating Officer being the Prosecution Witness No. 15 it transpires that he had in course of investigation been informed that there were frequent fights with regard to money between the appellant and the deceased. This necessarily gives rise to the inference that the deceased had income.

There is a suggestion that the deceased had money-lending business. The Investigating Officer also said so in his evidence. The deceased was a single lady separated from her husband. There is a strong possibility that the offence may have been committed by the appellant, but it is well-settled that suspicion, however, strong cannot be substitute for strict proof. The possibility that the deceased might have been killed by some outsider, may be a creditor, or a borrower, or a business associate or out of jealousy or revenge, cannot altogether be ruled out.

The judgment and order is patently based on conjectures and surmises. The reasoning in the judgment and order under appeal for holding that the chain of circumstances had been completed is patently misconceived. Save and except evidence of Prosecution Witness No. 15 based on alleged information gathered by him, there is no evidence of any quarrel between the accused appellant and the deceased regarding money. Moreover, the Investigating Officer has not stated the source of his information. In any case, statements under Section 161 are neither admissible in evidence nor can lead to conviction for an offence.

We hold that the evidence on record does not prove the guilt of the accused appellant beyond reasonable doubt. We have no option but to hold that the accused appellant is entitled to the benefit of doubt.

The judgment and order of conviction and the sentence cannot be sustained and the same is set aside. The appellant shall be entitled to benefit of doubt.

Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.