Judgment · High Court · 2012

#2. Heard Mr. RK Paul, learned counsel appearing for the appellant. Also hea rd Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam for the State re spondent.

#3. Briefly stated the prosecution case is that on 03.12.2003, at about 7 PM , the son of the informant Akbar Ali (since deceased) was asked by the accused appellant Ganesh Roy to exhibit CD and TV and accordingly the deceased went to the place alongwith the accused. Since then Akbar Ali did not return and it was revealed that the accused Ganesh Roy and Phul Kumar Roy intentionally caused the death of Akbar Ali and accordingly, the prosecution was launched on the basis o f the First Information Report (’FIR’ for short) lodged on 8.12.2003 by Md. Main al Sheikh, the father of the deceased before the Officer-in-Charge, Golakganj Po lice Station.

#4. On the basis of the FIR so lodged, the police investigated the case and on completion of the investigation submitted charge sheet against the accused pe rsons under Sections 302/201/34 IPC and the case being exclusively triable by th e Sessions Court, the learned Magistrate committed the same to the learned Sess ions Judge, Dhubri wherein the case was registered as Sessions Case No. 177/2004 . The learned Sessions Judge on the basis of the materials available on record a nd after hearing the parties, framed charges under Section 302/201 IPC as well a s under Section 302/201/34 IPC against the accused persons. The charges so frame d being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried.

#5. In order to substantiate the charges leveled against the accused persons , the prosecution has examined 16 (sixteen) witnesses including Medical Officer and Investigating Officer. Defence adduced none. Defence case is of total denial .

#6. The prosecution has examined Anil Kr. Saha as PW 1 who was the writer of FIR, but had no knowledge about the occurrence. PW 1 has proved the FIR, Ext 1 wherein Ext 1(1) is his signature. PW 2 Md. Mainal Sheikh is the father of the deceased who has deposed tha 7. t his son used to work in the video hall of Surya Goswami and he had seen the ac cused Ganesh Roy and Phul Kumar Roy in video hall alongwith his son. On a quer y to his son, his son informed him that he would go for video show. In the nex t morning the accused Ganesh Roy returned the cassettes to the owner of the hall , but his son did not return. On a query being made, the accused Ganesh Roy told him that his son went to Paglahat and would return. But his son did not return and on approach the accused Ganesh Roy told that his son might have gone to Rati a Daha. In this way PW2 searched for his son and accordingly, informed the polic e. The police asked him to come with some villagers and PW 2 saw Ganesh was movi ng ahead followed by police. The accused Ganesh Roy recovered the dead body from the water near a local college and at the time of recovery of the dead body Nur ul Islam and Sudarshan Mazumdar were also present. During cross examination, sug gestions put to PW 2 have been denied.

#8. PW 3 Nurul Islam has deposed that he was near the college when a police van along with the accused Ganesh Roy reached near the college. The accused Gan esh Roy moved into the ditch on the left side of the road. The dead body was tak en out from the water by the accused Ganesh Roy. The dead body was put on a thel a (hand cart) and PW 3 was called to help for lifting the body on the hand cart which he did. The body was identified to be of Akbar Ali. PW 3 was cross-examined at length. But the factum of his presence near the colle ge when the dead body was recovered by the accused Ganesh Roy himself could not be negatived.

#9. PW 4 Suranjan Mazuzmdar has deposed that he was with his helli (pull ca rt) at Golakganj bus stand whereof one Hasildar and PW 2 called him and took him towards Silaroy College and accordingly, he went there and saw a police van whe refrom the accused Ganesh Roy and police got down as the van could not move due to narrowness of the road. PW 4 followed the police and the accused Ganesh Roy when they reached near a ditch, Ganesh got down into the ditch, removed water hyacinth and a dead body was taken out. It was a dead body of a man. PW4 along w ith others and the accused lifted the dead body and placed it on his ’helli’. Th e dead body was of Akbar Ali and the deceased was known to him. During cross-examination, some suggestions were put to him to which he denied.

#10. The prosecution has examined Md. Akbar Ali as PW 5 who did not see the r ecovery of the dead body but deposed that he saw a dead body on the cart of PW 4 and the dead body was taken to the police station. He had also signed in the se izure list, whereby police seized a Television set (Mat. Ext.1).

#11. PW 6 Shri Bappa Dey has deposed that he saw a dead body over the cart and police seized some CD vide Seizure list (Ext.2). He put his signature in th e seizure list.

#12. PW 7 Madan Das has deposed that the deceased Akbar Ali took CD and TV fo r its exhibition and since he did not return even after two days, PW 7 went to his house and got information that Akbar Ali is dead.

#13. PW 8, Dipak Roy has deposed that he sells ground nuts at the video hall and in the evening, at 6-30 PM, accused Ganesh Roy and deceased Akbar Ali broug ht cassette and on being asked the accused Ganesh said that they would atten d marriage for exhibition of video.

#14. PW 9 Babu Sarkar has deposed that he was in the Goswami hall when the a ccused Ganesh Roy and Akbar Ali (since deceased) came and took away cassette an d paid the amount. In cross-examination PW 9 was asked what was the cloth he use d or what were the cassettes he handed over to them to which he replied that he could not remember. The prosecution has examined Md. Anowar as PW 10 who has deposed that ab 15. out two years ago, he was in the shop when the accused Ganesh Roy handed over so me cassettes to him.

#16. The Medical Officer, Kochir Ali Ahmed was examined as PW 11 who did t he Post Mortem examination on the person of the deceased and found as follows:-- (cid:28)External Appearance: A partially decomposed male body with closed mouth and eyes and present without rigor mortis in the extremities. There is a cut in jury across the front of neck (5 (cid:29) x 2 (cid:29) x 1 1/2 (cid:29)) near the larynx. Cranium and Spinal Cord: All are healthy. Thorax: Decomposition of the skin started. Larynx is cut opened alongwit h vessels. Right lungs congested and cartotive vessels are cut. (cid:29) Abdomen: Skin is peeling off at placed. Others are healthy muscles, bone s and joint: healthy. Gist of the above description: There is a cut injury across the front of neck near the larynx 5 (cid:29)x2 (cid:29)x1 1/2 (cid:29). The larynx is cut opened along the carrotive vessels on both sides. Both lungs are congested and trachere shows all blood cl ots in its lumen and mucosae are congested. (cid:29) In his opinion, the cause of death was due to shock and haemmorrhage as a result of ante-mortem cut injury across the front of neck along with the divisions of carrotive vessels. PW 11 has proved the report of post mortem examinations as Ext - 3 and Ext - 3 (1) is his signature and Ext 3(2) is the signature of Joint Director of Healt h Services, AK Chakravorty. In cross examination, he has deposed that in winter season the rigor mortis exis ts upto 48 hours. In summer season the rigor mortis exists upto 24 to 36 hours a nd thereafter decomposition starts. The injuries mentioned there are horizontal.

#17. Jibesh Biswas was examined as PW 12 who has deposed that the deceased Ak bar Ali was known to him and he used to visit his shop. Akbar took a TV from his shop but never returned.

#18. PW 13 Bidhan Goswami has deposed that one of his relatives PW 9 Babu Sar kar was in his shop in the evening on that day and he told him that deceased Akb ar Ali took six CDs from the shop and on the following day one boy who accompani ed the deceased returned the CDs.

#19. ege. She put her signature in the seizure list (Ext. 2). PW 14 Shova Dey has deposed that some CDs were seized from near the coll

#20. PW 15 Dulal Chandra Das served as ASO cum Executive Magistrate at Agomon i at the relevant time. He has deposed that being the Executive Magistrate at th e relevant time the accused and the Investigating Office showed him the dead bod y. He has examined the dead body and prepared the inquest report.

#21. The Investigating Officer Chandra Kr. Barua was examined as PW 16 who ha s deposed that he has investigated the case and on interrogating the accused, he led him to the spot and recovered the dead body. The dead body was identified a s the dead body of Akbar Ali. CD and TV were seized. He prepared the sketch map, examined the witnesses and after collection of the post mortem report has submi tted the charge sheet.

#22. After completion of prosecution witnesses, learned trial Court recorded the statements of the accused appellants under Section 313 Cr.P.C wherein they h ave completely denied their involvement in the case

#23. The prosecution witnesses did not implicate the accused Phul Kumar Roy a nd hence the learned trial Court acquitted Phul Kumar Roy on benefit of doubt.

#24. The learned trial Court after going through the evidence of PWs 2, 3 an d 4 who were at the spot when the accused led the police at the place where th e dead body was hidden under the water and the factum of recovery of dead body being fully corroborated by PWs 2, 3 and 4 without any contradictions found the evidence of PWs 2, 3 and 4 cogent and trustworthy. On the other hand, the evide nce of PWs 8, 9 and 10 who are the independent witnesses have clearly proved the fact that the accused Ganesh Roy was all along with the deceased just before hi s missing and the accused even accompanied the deceased to bring cassettes and h e has subsequently returned the cassettes to the shop which were supposed to be deposited by the deceased. Therefore, on the evidence of PWs 2, 3, 4, 8, 9 an d 10, the learned trial Judge has held that the prosecution has proved the guil t of the accused and accordingly convicted the accused Ganesh Roy as indicated h ereinabove,

#25. Criticizing the judgment of conviction Mr. Paul, learned counsel appeari ng for the appellant would urge that in absence of motive, it is unsafe to plac e reliance on the circumstantial evidence adduced by the prosecution, more so, when the said evidence is replete with discrepancies, omissions and improvement s. Mr. Paul has submitted that the evidence of the prosecution witnesses, more p articularly, PWs 2, 3, 4, 8, 9 and 10 are not corroborative and therefore, in a case of circumstantial evidence of this nature it would be dangerous to base a c onviction under Section 302 IPC, thus the impugned judgment under challenge requ ires interference under appellate jurisdiction.

#26. Mr. Paul has further contended that in order to establish the charge und er Section 201 IPC, it is essential to prove that an offence has been committed; mere suspicion that it has been committed is not sufficient and that the accuse d knew or had reason to believe that such offence has been committed and with th e requisite knowledge as well as with the intent to screen the offender from leg al punishment causes the evidence thereof to disappear or gives false informatio n respecting such offences knowing or having reason to believe the same to be fa lse. Mr. Paul would further contend that the ingredients of Section 201 IPC bein g absent in the case, the appellant is entitled to get the benefit of doubt requ iring interference under appeal. In support of his contentions, the learned coun sel has placed reliance on the following decisions: - 1. (2010) 6 SCC 525, (Niranjan Panja -vs- State of West Bengal) 2. (2008) 4 GLT 814, (Bimal Kapali -vs- State of Tripura) Countering the attack Mr. Mazumdar, the learned Additional Public Prosec 27. utor, Assam has led the court through the evidence of PWs 2, 3, 4, 8, 9 and 10 and would contend that the circumstantial evidence as would reveal from those p rosecution witnesses would demonstrate that it is the accused Ganesh Roy, who h as committed the murder of the deceased Akbar Ali and tried to cause disappearan ce of the dead body which is substantiated from the action of the accused who l ed the police to the ditch where the dead body was kept under the water. Police recovered the dead body as shown by the accused in presence of PWs 2, 3 and 4. T here is no missing link in the evidence of the prosecution witnesses and as such no interference is called for.

#28. Heard the arguments advanced by the learned counsel appearing for the pa rties. Perused the materials available on record, more particularly the evidence of PWs 2, 3, 4, 8, 9, 10, 11 and 16, wherein it has been established that the a ccused led the police to the spot where the dead body of the deceased was concea led. The dead body was recovered under the water as shown by the accused in pres ence of PWs 2, 3 and 4. The evidence of PWs 3 and 4 would disclose that the dead body was lifted by PW 3 and placed in the helli (pull cart) of PW 4 and the evi dence of the PWs 3 and 4 could not be shaken by the defence rather they negative d the suggestions put forward to them. Therefore, it is established that it is t he accused who led the discovery of the dead body of Akbar Ali and the witnesses identified the dead body as of Akbar Ali, the son of Mainal Sheikh and therefor e, the conviction of the accused Ganesh Roy cannot be interfered with when he fa iled to explain in what circumstances the accused parted company of the deceased and therefore, the link between chain of circumstances proved beyond doubt.

#29. The prosecution has established by the evidence of PWs 8, 9 and 10 tha t the accused Ganesh Roy and the deceased Akbar Ali were seen in the company nea r the Video Hall and thereafter, CD cassettes and TV were taken from the shop fo r exhibition of CD and the accused came on the next day and returned the casset tes to the owner of the shop but the deceased did not come and his whereabou ts was not explained by the accused. PWs 8, 9 and 10 are all independent witness es and they have clearly proved the fact that the accused Ganesh was all along w ith the deceased just before his missing. He even accompanied the deceased to br ing cassettes which were supposed to be returned by the deceased. The circumstan tial evidence has proved the guilt of the accused which do not require to be int erfered with in the facts and circumstances of the case.

#30. In Niranjan Panja (supra), the Apex Court has held that motive is an imp ortant circumstance in cases where prosecution is based on circumstantial eviden ce, but not essential for conviction when the prosecution case is established be yond all reasonable doubt from other circumstantial evidence that it is the accu sed who has committed the murder and in that case, the absence of motive will no t hamper a safe conviction. Therefore, the decision would not help the appellant in view of the evidence of the prosecution, more particularly PWs 2, 3, 4, 8, 9 , 10 and 16.

#31. Similarly the case of Bimal Kapali (supra) referred to by Mr. Paul would not be applicable in view of the clear evidence led by the prosecution in the i nstant case.

#32. ly dismissed. In the result, we find no merit in this appeal and the same is according

#33. Send down the lower court records.