ASHIM KUMAR ROY, J. - (1.) THIS criminal appeal arises out of a judgement and order passed by the learned Additional Sessions Judge, Raiganj, Uttar Dinajpur in connection with Sessions Trial No. 6/1997 convicting the appellant under Section 302 IPC, under Section 302/34 IPC, under Section 302/107 IPC and under Section 302/120B IPC and sentencing him thereunder to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for one year.
(2.) THE case of the prosecution in short is as follows; On March 23, 1988 at about 7 hours in the morning the son of the complainant Mahasin Ali found a dead body of an unknown female lying at Mahatur Mouza on the northern bank of the ?bill? with throat cut injury. When a FIR was lodged with the local police station which gave rise to Kushmandi Police Station Case No. 6 dated March 23, 1988 under Section 302 of the Indian Penal Code. In course of investigation of the said case the dead body was identified as to be of one Kalo Barmani of Mouza Kulator. When the villagers suspected the appellant?s involvement in the case as he was closely mixing with her and when the appellant was questioned by them he allegedly in presence of the villagers admitted that after the death of her husband he picked up an illicit relationship and intimacy with Kalo Barmani. It is the further case of the prosecution that due to such relation the deceased conceived and gave birth to a child named Kuranu and as the deceased was repeatedly insisting the appellant to admit his paternity, the appellant took out the deceased and her son Kuranu aged about 1? year on the pretext of purchasing some dress materials from Patirajhaat and during dark with the help of absconding accused Bhupen Sarkar first raped her and then killed both the deceased Kalo Barmani and her son. The learned Counsel appearing on behalf of the appellant vehemently contended that this is a case based on circumstantial evidence and except recovery of bloodstained wearing apparels of the accused allegedly at his instance and the extra-judicial confession made by the appellant before his co-villagers under extreme pressure which was never a voluntary one there is no other materials to implicate him in the commission of the offence. He further submitted that the circumstances the prosecution relied upon are too insufficient and feeble to sustain the order of conviction and thus prayed for an acquittal. On the other hand, the learned Counsel on behalf of the State strongly repudiated the above submissions made on behalf of the appellant. According to him that the extra-judicial confession of the appellant before the independent witnesses and recovery of his bloodstained wearing apparels at his instance is sufficient to conclude that the appellant is the perpetrator of the crime. He further submitted that the Trial Court by a well-reasoned judgement found him guilty and the question of interfering with the same does not at all arise. There is no dispute that this is a case based entirely on circumstantial evidence. It is now well-settled in a case based on circumstantial evidence not only the links in the chain of circumstances be proved beyond all reasonable doubts at the same time the circumstances so proved must be compatible with the guilt of the accused and the fact established must rule out likelihood the innocence of the accused.
(3.) DURING the trial the prosecution examined total 14 witnesses. Out of the said witnesses P.W. 1 Hassan Ali is the informant of the case and it appears from his evidence after discovery of the dead body of the victim Kalo Barmani, he informed the police and lodged the report, besides that nothing transpires from his evidence as regards to the incident of murder. The P.W. 2 Dhan Mhamad and P.W. 3 Hafizur Rahaman are the witnesses of inquest over the dead body of deceased Kalo Barmani. The P.W. 4 Chandri Barman is the uncle of the deceased Kalo Barmani. According to him after the death of the husband of Kalo Barmani the appellant regularly visited her and they developed an illicit relation and due to such relation the deceased gave birth to a child named Kuranu. The witness admitted that he had not disclosed to the police that Kalo gave birth to a child by Dhelu. The P.W. 5 Paresh Ch. Roy and P.W. 6 Pasiruddin both turned hostile during trial. The P.W. 7 Sasthi Das is a witness who identified the dead body as that of Kalo Barmani to the police by seeing the photographs of the deceased. So far as the P.W. 8 Binoy Barman is concerned, according to him the date from when Kalo Barmani was found missing in the morning she came to him and took a loan of Rs. 4/- and told him that being accompanied by the appellant she would go to haat for purchasing her saries and garments for her child. He also deposed about the intimacy developed between the appellant and the deceased after the death of her husband. The P.W. 9 Suben Deb Sharma only deposed about the fact that he was told by the Kalo Barmani that after the death of her husband that Dhelu has developed an affair with her and her son Kuranu was begotten by the accused. This witness was challenged as to the fact that he did not disclose to the police as to what the deceased told him. The P.W. 10 Balai Chandra Roy is the only witness, who stated that on 20.04.88, a Salish was held in their village over the issue of murder of Kalo Barmani. In the said salish, in presence of other villagers the appellant admitted his guilt for committing the murder of deceased Kalo Barmani and her son. The witness further claimed that the other villagers, viz. Paresh, Binoy, Chandri and others, while during the trial Paresh, P.W. 5 was declared hostile and both the P.W. 4 Chandri Barman and P.W. 8 Binoy Barman were completely silent about any confession made by the appellant admitting that he killed the deceased Kalo Barmani. We have already found admittedly this is a case based on circumstantial evidence and the fact victim died a homicidal death is beyond any dispute and has been proved by the evidence of Dr. Pankaj Das, the P.W. 12. In this case the circumstances relied upon by the prosecution are as follows; (a) On the date from which the deceased was found missing in the morning she told the P.W. 8 Binoy Barman that she would go with the appellant and her child to Harirampur haat for purchasing saries and garments. (b) In a village salish the appellant admit his guilt for killing the deceased Kalo Barmani and her son. (c) Recovery of bloodstained wearing apparels of the appellant from his house, vide Exhibit ? 4/1. So far as the first circumstance is concerned in absence of any other materials showing that actually the appellant and the deceased with her son went to the haat or on the date of her missing they were last seen together, we are not inclined to put any importance on the same. The next circumstance that accused confessed his guilt before the villagers about killing of the deceased and her son by him does not create much confidence to hold him guilty, not only because an extra-judicial confession is a very weak piece of evidence and should not acted upon unless being corroborated by other clinching circumstances but in this case although the P.W. 10 Balai Chandra Roy the only witness who spoke about such extra-judicial confession that such confession was made in presence of P.W. 4 Chandri Barman, P.W. 5 Paresh Ch. Roy and P.W. 8 Binoy Barman but none of the said witnesses lent any support to such claim. While P.W. 5 Paresh Ch. Roy was declared hostile but the prosecution very much relied on the evidence of P.W. 4 Chandri Barman and P.W. 8 Binoy Barman. As the law stands when a witness is silent about a very important fact on which the prosecution case based and still such witness was not declared hostile, in such circumstances the defence can always rely on the evidence of those witnesses to prove his innocence. Although P.W. 10 Balai Chandra Roy claimed that following the murder of the deceased a salish was held on 20.04.1988 in the village, but it appears from the evidence on record that the dead body was discovered only on 23.03.1988. Therefore, the question of holding salish before the discovery of the dead body and before the victim was found missing may not arise. In our opinion it will not at all be safe to rely on the evidence of P.W. 10 as regards to the alleged extra-judicial confession made by the appellant. The last circumstance about the recovery of the bloodstained wearing apparels of the appellant, both the recovery witnesses, viz. P.W. 5 Paresh Chandra Roy and P.W. 6 Md. Pasiruddin were declared hostile, even P.W. 5 was not cross-examined by the prosecution as to the same. Moreover, the recovery of bloodstained wearing apparels of the appellant from his house was not put to the appellant in his examination during the trial under Section 313 of the Code. Although it is the case of the prosecution that the appellant killed both the Kalo Barmani and her son Kuranu but no evidence was led by the prosecution to show as to what happened to Kuranu. In fact there is nothing on record as to whether the Kuranu has at all been murdered or not. In view of above, we are of the clear opinion the prosecution has not been able to prove its case against the appellant.;