- (1.) This criminal appeal has been preferred against the judgment and order dated 28.06.2006 passed by the High Court of Calcutta in C.R.A.No. 229 of 2000, by which it dismissed the appeal of the appellant against the judgment and order of conviction dated 26.5.2000 passed by the Additional Sessions Judge, First Court, Burdwan in Sessions Trial No. 7 of 1999, convicting the appellant under Sections 302 and 201 of the Indian Penal code, 1860 (hereinafter referred to as 'IPC') and appellant has been imposed the sentence to suffer rigorous imprisonment for life under Section 302 IPC and sentence of one year under Section 201 IPC. Both the sentences have been directed to run concurrently.
(2.) The facts and circumstances giving rise to this case are that: (A) On 31.08.1991, Sahanara Khatun, daughter of Abdul Rajak, resident of village Batrish Bigha, PS: Jamalpur, aged 13 years, had gone to pluck jhinga at about 9.30 A.M. from her jhinga field. She did not return till 10.30 A.M., her father Abdul Rajak alongwith Habibur Rahaman and Sirajul Islam went to search her, however, could not trace her in the jhinga field. They looked for her in bamboo grove in nearby graveyard and found a freshly dug earth, thus, they removed the soil and found the dead body of Sahanara Khatun. (B) Imdad Ali (PW.1) lodged the FIR on the same day at 12.05 hours under Sections 302 and 201 IPC at Police Station Jamalpur, District Burdwan at a distance of 8 kilometres from the place of occurrence, wherein the appellant was named as accused on the suspicion that appellant was seen by Abdul Rashid (PW.5) and Swapan Murmu catching fish in the canal adjoining his jhinga field and was also seen talking with deceased. The appellant was having a spade in his hand, when it is inquired from the appellant, he replied that he had gone to catch the fish near railway track. Subsequently, the appellant absconded. In the FIR, it had already been mentioned before committing the murder, Yusuf, the appellant tried to commit rape and on being resisted by the deceased, the appellant assaulted her on her head with spade and murdered and buried her in the graveyard. Thus, investigation ensued. The appellant was arrested on 7.9.1991 by the villagers in the paddy fields near Batrish Bigha and handed over to the police. It was on his disclosure that an old spade, one ghuni and one enamel thala (plate) were recovered. After completing the investigation, chargesheet was filed against the appellant. He denied his involvement in the crime pleading not guilty. Thus, he was put to trial. The prosecution examined 19 witnesses to prove its case. (C) After conclusion of the trial, the Additional Sessions Judge, Burdwan, vide judgment and order dated 26.5.2000 found the appellant guilty of offences punishable under Sections 302 and 201 IPC and sentenced him to life imprisonment and fine of Rs.1,000/- under Section 302 IPC and further sentenced to one year rigorous imprisonment and fine of Rs.500/- under Section 201 IPC. (D) Being aggrieved from the aforesaid judgment, the appellant preferred Criminal Appeal No. 229 of 2000 in the High Court of Calcutta which has been dismissed vide judgment and order dated 28.6.2006. Hence, this appeal.
(3.) Shri R.K. Gupta, learned Amicus Curiae, has submitted that it is a case of circumstantial evidence. There is no evidence on record that Sahanara Khatun, deceased, was seen with the appellant at the place of occurrence. The spade recovered by the Investigating Officer during investigation had not been sent for chemical analysis. The trial court as well as the High Court placed a very heavy reliance upon extra-judicial confession allegedly made by the appellant before Nurul Islam (PW.11) and Ali Hossain (PW.13) and others though there was no such confession. Nurul Islam is the brother-in-law of Abdul Rajak (PW.2), father of the deceased. Ali Hossain (PW.13) is a resident of the village of Nurul Islam (PW.11). He did not support the version of extra-judicial confession put forward by Nurul Islam (PW.11). There are contradictory statements regarding catching hold of the appellant at Jamalpur after one week of the incidence. There is no evidence of sexual assault on the deceased. Dr. Samudra Chakraborty (PW.18), who conducted the post-mortem on the body of Sahanara Khatun (deceased) did not mention in his report that any sexual assault was made on the deceased prior to her death. Thus, the appeal deserves to be allowed.;