Arijit Banerjee, J
1. This is an appeal against a judgment and order dated 21.11.2009 and 23.11.2009 passed by the Learned Court of Additional District and Sessions
Judge, Fast Track, 3rd Court, Paschim Medinipur in Sessions Trial Case No. II/June/2008 arising out of Kharagpur (L) P.S. Case No.27/2008 and
G.R. Case No.175/2008 whereby the appellant was held guilty of offence punishable under Section 302 IPC and was sentenced to suffer
imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer imprisonment for five months more.
2. The written complaint was lodged by one Khudu Soren (P.W.1) on 10th February, 2008 at about 10:25 a.m. which was to the effect that on that
day at about 6:30 a.m. he came to know from the people of the village that Hiramoni @ Basanti Hansda (the victim), wife of Chunaram Hansda (the
convict) had died the previous night. On hearing this he went to Chunaram’s house and upon being questioned, Chunaram admitted that at about
1:00 a.m. in the night he had beaten his wife to death with Lathi (stick). The First Information Report was lodged on the same day on the basis of the
written complaint.
3. Investigation ensued and the accused was charged for having committed offence punishable under Section 302 IPC for having knowingly caused
the death of the victim. The contents of the charge-sheet were read over and explained to the accused person in Bengali to which he pleaded ‘not
guilty’ and claimed to be tried. Hence, the trial.
4. The prosecution examined ten witnesses. The defence did not examine any witness. The accused was examined under Section 313 Cr.P.C. His
stand was one of complete denial. However, in answer to Q-9 he stated: “I was not at home on that day. I was intoxicated and was lying on the
road while entering the village. I did not have quarrel with my wife.†In answer to Q-12 he stated: “I was not allowed to take my wife’s dead
body. I was caught from the field where I was lying intoxicated.†Finally, in answer to Q-29 he stated: “One week before the incident 4/5 persons
of the village came to our house and threatened my wife to withdraw the case that she filed. My wife did not withdraw the case. It’s still on. They
beat and assaulted me and my wife, forced us out of the village. We informed the police. They maligned my wife calling her a witch. We filed case as
they had assaulted and fractured the right hand. For this implicated me in the false case. I am innocent. Ram Soren, Rani Das Majhi had assaulted.
Nasi Ram Soren also had assaulted.â€
5. The Learned Trial Judge analysed the evidence adduced by the prosecution witnesses and solely relying on extra judicial confession allegedly made
by the accused before P.W.1, P.W.6 and P.W.8 and also the police, convicted the accused. It is this conviction that falls for scrutiny in this appeal.
6. The key witnesses in this case are P.W.1 (Panchayat member of Keshiasole Gram Panchayat), P.W.3 (the Doctor who conducted Post Mortem
on the dead body of the victim), P.W.4 (a resident of the village), P.W.6 (neighbour of the accused), P.W.8 (resident of the same locality) and P.W.10
(the Investigating Officer).
7. P.W.1 stated in his evidence that he got information that wife of the accused died and hence he went to the house of the accused. At that time, the
accused and his son and daughter were present. He asked the accused how the incident happened. The accused told him that he inflicted lathi blow
on the victim’s head causing death. Thereafter he lodged complaint with the police. In cross-examination he stated that the accused and his wife
used to consume liquor and “they used to fall down in any place under intoxicated stage.†He further stated that on the day of the incident both
the accused and his wife had taken huge quantities of liquor and he saw bottles of liquor in the house of the accused. The police reached the house of
the accused half an hour after he reached that house. The accused also confessed before the police that he caused lathi blow on the head of his wife.
He finally said that he was aware that the victim had lodged a case against Ruidas Majhi for that person having made an allegation against her that
she was a witch and that the case was still pending.
8. P.W.3 is the autopsy doctor. From the Post Mortem report which he proved in Court, as also from his deposition, it appears that he found the
following injuries on the victim:
“(1) Multiple abrasions varring shape and sides from ½†x ¼†to 2†x 1½ †Pl. irregularly over forehead, face, upper part of front of
chest, lower part of back of chest, right gluteal region, lower part of back of right thigh, & front of right leg.
(2) One abrasion 6†x 1½†Pl. transversely over mid part of front of neck equally on both sides extending from 1½†above to S.S. notch.
(3) Bruise 6†x 2†transversely Pl. over mid part of front of neck equally on both sides with fracture of hyoid bone & thyroid cartilage with
extravasation of blood in & around.
(4) Bruise over postero-lateral aspect of each arm & each forearm & dorsum of each hand.
(5) Bruise over back of each thigh, right gluteal region & back of each leg, & back of whole chest.
(6) Bruise 4†x 4†present around mouth.
(7) Scalp hematoma 5†x 2†Pl. antero-posteriorly over mid part of both parietal regions.
(8) Subdural haemorrhage all over both cerebral hemisphere including undersurface of brain bruises were reddish in colour abrasions were fresh &
non-scabbed injuries showed evidence of vital reactions no other injury could be detected even on careful dissection & examination under a hand
lens.â€
He deposed that in his opinion death was due to the effects of injuries associated with strangulation and was anti mortem and homicidal in nature.
In cross-examination he said: “injuries described in the Post Mortem report rarely it is possible to be produced by one individual and commonly by
more than one individual.â€
9. P.W.4 deposed that he knew that the victim had lodged a case in connection with allegation of witch having been made against her and she was
assaulted by Ruidas Majhi and others. The villagers assaulted her and forced her to leave the village and at the instance of police she came back to
the house of the accused.
10. P.W.6 stated in his evidence that being summoned by the Gram Panchayat, the police went to the house of the accused at 9:00 a.m. on
10.02.2008. He was also present at that time. In front of him the police asked the accused about the death of his wife to which the accused stated that
he committed murder of his wife by lathi. In cross-examination he admitted that a criminal case had been instituted at the instance of the victim
against several persons including him and it was pending and that he was on bail. He admitted that he did not see the accused beating his wife with
lathi.
11. The evidence of P.W.8 is similar to that of P.W.6. He deposed that the accused confessed before the police and other villagers including himself,
who were present at that time, that he hit his wife with a lathi. In cross-examination he stated that he heard that the accused confessed before the
police that he hit his wife with a lathi. He stated that the daughter and son of the accused were 11 and 7/8 yrs old approximately. He admitted that he
reached the house of the accused after the police reached that house.
12. The deposition of P.W.10 is important not for the contents thereof but for what is conspicuous by its absence. The Investigating Officer does not
speak of any confession by the accused.
13. As indicated above, the Learned Trial Judge convicted the accused on the basis of the alleged extra judicial confessions allegedly made by the
accused before P.W.1, P.W.6, P.W.8 and the Police. The Learned Trial Judge referred to the decision of the Hon’ble Apex Court in the case of
Gura Singh v. The State of Rajasthan: (2001) 2 SCC 205, in support of his view that extra judicial confession, if true and voluntary, can be relied upon
by the Court to convict the accused for the commission of the crime alleged. We are conscious of such principle of law. The said principle has also
been enunciated by the Hon’ble Supreme Court in Narayan Singh v. State of Madhya Pradesh: (1985) 4 SCC 26 and State of Punjab v. Gurdip
Singh: (1999) 7 SCC 714. Essentially what the Hon’ble Supreme Court has laid down in those cases is that it is not open to the Trial Court to start
with a presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time
when confession is made and the credibility of the witnesses. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot
be ignored when it is shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the
circumstances which tended to support the statement. However, in our opinion, the facts and circumstances of the present case are such that
conviction of the accused solely on the basis of extra judicial confession allegedly made before P.W.1, P.W.6, P.W.8 and the police was not
warranted for the reasons indicated hereainafter.
14. Firstly, on an overall analysis and assessment of the evidence of P.W.1, P.W.6 and P.W.8, which formed the basis of conviction of the accused,
we find the same to be lacking in credibility. Let us take P.W.1 first. He said that he heard that the victim was dead. From whom he heard is not
stated. Such person is not examined. It is rather strange that on a winter February morning at about 6:30 a.m. he visited the house of the accused upon
allegedly hearing that the wife of the accused had died the previous night. He is not related to the accused or the victim in any way. We find his
version difficult to believe. Although the prosecution argued that his statement is corroborated by that of P.W.6 and P.W.8, we are of the considered
view that not much credence can be given to the evidence of P.W.6 and P.W.8. It has come out in evidence that the relationship between P.W.6 on
one hand and the victim and the accused on the other was acrimonious. A criminal case initiated at the instance of the victim was pending on the date
of the incident in which P.W.6 was one of the accused persons. He was out on bail. He cannot be said to be an independent or disinterested witness.
He had clear motive to give false evidence against the accused. As regards P.W.8, in his examination-in-chief, he stated that the accused confessed
before “all of us including police officers that he hit with a lathi on the head of his wife.†However, in cross-examination he said: “I heard that
Chunaram confessed before the police that he hit his wife with a lathi.†Credibility of this witness is also suspect. In our opinion, it will not be safe to
base conviction on the strength of evidence adduced by P.W.6 and P.W.8. What follows is that the evidence of P.W.1 remains uncorroborated and
even otherwise is of doubtful credibility as indicated above. Most importantly, P.W.1, P.W.6 and P.W.8, all of them deposed that the accused, in their
presence, confessed to the police of having caused the death of his wife. However, it is not a little surprising that P.W.10 i.e. Investigating Officer in
his deposition does not refer to any confession by the accused. All these facts taken together raise a serious doubt in our mind as regards the reliability
and acceptability of the evidence of P.W.1, P.W.6 and P.W.8 which is the fulcrum of the prosecution case and relied upon by the Learned Trial
Judge.
15. Secondly, we have noted the injuries that the autopsy doctor noticed on the victim’s body. We are of the considered opinion that it is highly
unlikely that one person with a lathi could inflict all the said injuries. The autopsy doctor is himself of the opinion that the extent and nature of injuries
are such that is it more likely that more than one person inflicted the same on the victim.
16. Thirdly, it emerges from the deposition of P.W.1, P.W.6 and P.W.8 that when they went to the house of the accused having heard of the incident,
and when the police came, the daughter and son of the accused and the victim were present. It has come out in the evidence of P.W.8 that the
daughter and son were aged 11 and 7/8 yrs approximately. However, they were not examined. This is also quite surprising. They were present in the
house and they would have been vital witnesses.
17. Fourthly, it surfaces from the evidence on record that there was enmity between the residents of the village in question and the accused and the
victim. The victim had been christened as a witch by the villagers and was made to leave the village. She could come back to the house of the
accused only with police intervention and thereafter at her instance a criminal case was instituted in which P.W.6 was an accused party. It also
emerges from the evidence recorded that both the accused and the victim were high consumers of alcohol. It is not impossible that taking advantage
of the highly intoxicated state of the accused and the victim some other people in the village who had a grudge on the victim committed the crime in
question and framed the accused as the culprit and perpetrator of the crime.
18. From a careful reading and analysis of the evidence on record, we are of the view that it cannot be ruled out that the accused has been falsely
implicated. On an overall assessment of the evidence on record and considering the totality of the facts and circumstances of the case, we are of the
opinion that it cannot be said beyond reasonable doubt that the perpetrator of the act causing death of the victim was the accused/appellant. This is not
such a case where one can say that the death of the victim cannot be explained excepting by imputing guilt to the accused.
19. It is a fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of reasonable doubt. It is up to the prosecution
to adduce convincing evidence to establish the charges brought against the accused. In our administration of criminal justice an accused is presumed
to be innocent unless such a presumption is rebutted by the prosecution by producing evidence to show that he is guilty of the offence with which he is
charged. The accused need not prove his innocence. He has a right to remain silent. Only in exceptional cases is he required to speak out and offer an
explanation in support of his innocence i.e., where no other theory excepting the guilt of the accused can explain the commission of the concerned
offence. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. These propositions of law are so well
established that one need not cite authorities to support the same. However, if one wants, one may refer to the decision of the Hon’ble Apex
Court in the case reported in (2008) 10 SCC 450 [Ghurey Lal v. State of U.P].
20. Keeping in mind the above salutary principles of criminal jurisprudence, we are unable to agree with the judgment and order of the Learned Trial
Judge. The facts and circumstances of the case discussed above coupled with the loop-holes and inconsistencies in the prosecution evidence leave a
lurking doubt in our mind as regards the guilt of the accused as the perpetrator of the crime in question. We are of the considered view that this is a fit
case where benefit of doubt should be given to the accused.
21. In the result, the appeal succeeds. The judgment and order of conviction of the Learned Trial Judge is set aside. By our order dated 15th January,
2020 we had already suspended the sentence imposed on the appellant and had granted him bail on condition of furnishing a personal bond to the
satisfaction of the convicting Court. In the event, the appellant is still in the Correctional Home (Lalgola Open Air Correctional Home, P.O. Lalgola,
Dist.- Murshidabad), the appellant shall be released forthwith unless he is wanted in custody in connection with some other case. Let the records of
this case be forthwith sent back to the Learned Trial Court for necessary orders being passed by the Learned Trial Judge.
22. CRA 28 of 2010 is accordingly disposed of.
23. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
I agree.
