- (1.) This appeal is directed against the judgment of conviction and sentence passed by Learned Additional Sessions Judge, Alipore, South 24-Parganas in Sessions Trial No. 1(1) 98 arising out of Session Case No. 17(5) 97 sentencing appellant to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- in default to suffer simple imprisonment for one year under section 376 of the Indian Penal Code and to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year under section 302 of the Indian Penal Code.
(2.) The prosecution case, in short, is "that one Bablu Ghosh lodged a complaint with the Officer-in-charge of the Bishnupur PS alleging that on 01.02.91 the victim, aged about 13/14 years, the eldest daughter of Malati Pal, the resident of Kuleswar, was found lying dead in naked condition in the paddy field of Mahadev Sardar at about 8.00 AM on 01.02.91. THE informant's sister-in-law, that is, the mother of the victim, was residing for the last seven months as tenant with her husband alongwith other family members in the house of late Tarapada Chatterjee at Kannyanagar Colony under Bishnupur Police Station. Nemai Chatterjee, the son of the landlord late Tarapada Chatterjee, used to go everyday to the house of proprietor of Weaving Company along with the victim for the last one month to enable the victim to learn the work of weaving. THE Informant's sister-in-law was evicted from the house of Tarapada Chatterjee and she came back to Kuleswar. At the time of leaving the rented house, victim was told by the accused to meet him very often on the plea of securing a job for her. On that understanding the victim used to come to the house of the informant at Jayrampore. She came to the house of the informant on Tuesday, that is, 29.01.91. On the next day, that is, Wednesday, in the morning she told the wife of the informant that she was going to the house of Nemai Chatterjee at Kannyanagar on the plea that the accused assured her to secure a job for her. On her return in the evening she told that Nemai had arranged a job of packaging for her at a daily wage of Rs. 15/- in the seeds store at Amtala from the next day. On Thursday, that is, 31.01.91 in the evening at about 4.30 P.M. the victim left the house of the informant telling that she was going to the house of the accused who assured that he would arranged a job and from house of the accused she would go straight to Kuleswar. On 31.01.91 at about 7/7.30PM Barin Roy and Proshanta Ghosh of his village saw Nemai and the victim proceeding towards Amtala talking together from the colony. Bijoy Ghosh also saw the victim and Nemai together on the edge of the Baidyabagan Math and he told her to return home as quickly as possible and the accused told that he would send her back to her house on time. THE informant alleged that Nemai was in free mixing with the victim by giving assurance to her of securing a job and the accused was responsible for the murder of the victim. Upon completion of investigation, charge sheet was submitted. The charges were framed under sections 376/302 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. Mr. Souvik Mitra, the Learned Counsel appearing for the appellant submits that the prosecution case is based on circumstantial evidence and evidence adduced by the prosecution on the point of the 'last seen together' is not at all sustainable. It is contended that the chain of circumstances is not complete and the Learned Trial Judge was not justified in relying on the evidence of PWs on the point of 'last seen together.'
(3.) Mr. Mitra, contends that the confessional statement of the accused recorded by the Learned Judicial Magistrate suffers from non compliance with the mandatory provisions of section 164 Cr PC. It is contended that the Learned Magistrate did not explain to the accused that he would not be sent to the Police Custody and it was not asked to the accused whether there was any threat or inducement behind making such confessional statement. MR. Mitra, has put much stress on the fact that the accused was produced before the Learned Magistrate immediately after arrest and the time for reflection for 3 hours was not sufficient. MR. Mitra, contends that the accused retraced the confession in answer to the questions put to him under section 313 Cr PC. It is submitted that under such circumstances the confessional statement of the accused cannot be relied upon. Mr. Mitra contends that the incident took place at night on January 31, 1991 and on the next day in the morning the dead body was found. It is contended that there was a long gap of time between the point of last seen together and the commission of death. Mr. Mitra has referred to and cited the decisions [Davendra Prasad Tiwari v. State of U.P., 1978 AIR(SC) 1544]; [State of Goa v. San/ay Thakran and Anr., 2007 2 SCC(Cri) 162]; [Jaswant Gir v. State of Punjab, 2005 12 SCC 438]; [Inderjit Singh and Anr. v. State of Punjab, 1991 CrLJ 2191]; [State of Orissa v. Dibakar Naik and Ors., 2002 SCC(Cri) 1128] ; [Rabindra Kumar Pal alias Dora Singh v. Republic of India, 2011 2 SCC 490]; [Babubhai Udesinh Parmar v. State of Gujarat, 2007 1 SCC(Cri) 702]; [Bhagwan Singh and Ors. v. State of M.P., 2003 SCC(Cri) 712]; [State of U.P. v. Singhara Singh and Ors., 1964 AIR(SC) 358]; [Gobardhan Rajbanshi v. State of Jharkhand, 2002 CrLJ 3301]; [Kehar Singh and Ors. v. State (Delhi Administration), 1988 SCC(Cri) 711];