Aparesh Guchhait & Anr vs State Of West Bengal

Joymalya Bagchi, J

Two brothers Aparesh Guchhait and Animesh Guchhait, appellants herein, have been put on trial for a murder of a nine-year old paralytic boy, a distant cousin of theirs.

Genesis of the prosecution case can be traced back on 27.04.2004 when around 6 a.m. P.W. 2, Malati Guchhait, mother of the victim found that her son Chiranjit, who was sitting at the Tulsimancha (a small altar where the sacred 'Tulsi Plant' had been kept in front of the house) had gone missing. Father of the child P.W. 1, Rampada Guchhait was away from home for business purposes. He was informed of the said incident. After he returned home he along with local people started searching for the boy. In the meantime while shuffling through the books of the young boy a letter demanding Rs.2,00,000/- purportedly written by a dacoit Sultan Singh was found. As per the letter P.W. 1 along with his relations and local people proceeded to keep the ransom money at a place behind Mangaldeep lodge at Gadiara, Howrah. They kept watch for sometime but no one came to collect the money. Accordingly they returned home with the money. It is alleged while going to the spot, P.W. 1 and others had requested the brothers to accompany them but they refused to do so and Aparesh had left the spot. On the next day Animesh informed P.W. 2, Malati Guchhait as well as her brother P.W. 3, Deepak Koley @ Manik Koley, maternal uncle of the boy that P.W. 1, Rampada should go alone and keep the ransom money at the spot. After scrutinising the ransom note, doubts occurred in the mind of P.W. 1 and others that it may have been written by Aparesh. On the night of 29th April, 2004 P.W. 1, Rampada lodged First Information Report resulting in registration of Tamluk Police Station Case No.69/04 dated 29.04.2004 under Section 364/364A of the Indian Penal Code. As doubts had cropped up in the mind of the witnesses that the handwriting in the ransom note may be that of Aparesh, exercise books with the handwritings of the said accused were seized. On the next day local people complained that a foul smell was coming from the Godown of Chandi Charan Guchchhait, father of the appellants. Keys to the godown was taken from him and upon opening the godown the body of the deceased was recovered. Aparesh and Animesh were arrested in connection with this case and charged with the offences punishable under Sections 364, 364A, 302, 201 and 34 of the Indian Penal Code. In the course of investigation opinion of the handwriting expert confirmed the suspicion that the ransom note had indeed been written by Aparesh. Charges were framed against the aforesaid accused persons under the aforesaid sections and they pleaded not guilty and claimed to be tried.

In the course of trial prosecution examined 21 witnesses and exhibited a number of documents. In conclusion of trial the Trial Judge by a Judgment and order dated 29.04.2013 and 30.04.2013 convicted the appellants for commission of offence punishable under Sections 364A/34, 302/34 and 201/34 of the Indian Penal Code and directed that they shall suffer life imprisonment and fine of Rs.5,000/-in default imprisonment for two years for commission of offence under Section 364A/34 of the Indian Penal Code and also suffer life imprisonment and fine of Rs.5,000/- in default another imprisonment for the period of two years each for commission of offence under Section 302/34 of the Indian Penal Code and to suffer imprisonment for three years with fine of Rs.1,000/- in default S.I. for six months for commission of offence under Section 201/34 of the Indian Penal Code, all the sentences to run concurrently.

During hearing of the appeal it was strongly contended that the evidence of the handwriting expert P.W. 9, Tarun Kanti Banerjee and his report had not been placed to the appellants during their examination under Section 313 of the Criminal Procedure Code. Accordingly, this court directed further examination of the appellants under Section 313 of the Criminal Procedure Code with regard to the aforesaid incriminating fact. Such examination has been conducted and the report thereof has been placed before this Court.

Mr. Mondal appearing for the appellants argued that the circumstances relied upon by the prosecution have not been proved beyond doubt and do not form a complete chain unerringly pointing to the guilt of the appellants. FIR is bereft of vital facts particularly with regard to keeping of ransom money at Gadiara on the date of the incident i.e. 27.04.2004. Roles of the appellants in the crime are wholly inferential and the opinion of the handwriting expert suffers from various deficiencies. It is also submitted that P.W. 19, Chandi Charan Guchhait from whose godown body of the deceased was recovered turned hostile and did not support the prosecution case. Accordingly, the appellants are entitled to an order of acquittal.

On the other hand Mr. Sur with Mr. Mahata argued that the appellants are distant relations of P.W. 1, Rampada Guchhait, a successful businessman. Aparesh was in financial crisis and had demanded a loan from P.W. 1, father of the deceased child. On the date of the incident i.e. 27.04.2004 the appellants kidnapped the young boy and Aparesh had written a ransom note purportedly in the name of a dacoit Sultan Singh demanding money. They did not accompany the search party who went with P.W.1 to keep the ransom behind Mangaldeep lodge and appellant no. 2, Animesh, on the next date asked Malati, P.W. 2 and Deepak Koley @ Manik Koley, P.W. 3, uncle of the victim, to tell P.W.1 to go alone with the ransom money. Two days later the body of the victim was recovered from a godown which was under the control and custody of the family of the appellants. Opinion of hand-writing expert, P.W.9 proves the ransom note to be in the hand-writing of appellant no.1. Hence, chain of circumstances is complete and establishes the guilt of the appellants beyond doubt.

I have gone through the evidence on record.

P.W. 1, Rampada. Guchhait, is the father of the victim and the defacto complainant in the instant case. He was not present at the house when his son went missing. On 27.04.2004 he was informed about the incident and started searching for his son. A ransom note was recovered from the exercise books of the child purportedly from one dacoit, Sultan Singh. P.W.1 and others proceeded to the proposed site i.e. behind Mangaldeep Lodge at Gadiara, Howrah to keep the ransom as demanded. Animesh, however, did not accompany them to the spot. In fact, Aparesh hurriedly left the place. No one came to collect the money and so they returned home with the money. On 29.04.2004 P.W.1 lodged complaint with the police. He suspected that the hand-writing in the ransom note was that of Aparesh and the exercise books containing the hand-writings of the said accused were seized. On 30.04.2004 body of the victim was recovered from the godown of the appellants. P.W.19, father of the appellants handed over the key to the godown.

P.W. 2, Malati Guchhait, mother of the deceased deposed that the child, a nine year old paralytic boy, was sitting at the Tulsi Mancha in front of the house on the morning of 27.04.2004. Suddenly he went missing from the said spot. She searched for the boy at various places but failed to trace him. Her husband was away from home due to business purposes. He was informed of the incident and returned home. She recovered the ransom note while scuffling through the books of the child. She corroborated her husband, P.W. 1, with regard to keeping of the ransom money at Gadiara. She further deposed on 28.04.2004 Animesh told her to tell her husband to go alone with the ransom money. She also deposed regarding the recovery of the dead body of the child from the godown of the appellants.

P.W. 3 and P.W. 6 are the maternal aunt and uncle respectively of the child. They have corroborated the evidence of P.Ws. 1 and 2. They further deposed on 28.04.2004 Animesh had come to their house and told them that P.W.1 should go alone with the ransom money. They had informed such fact to P.W. 2.

Other relations of the deceased viz. P.W. 7, Joydeb Samanta (uncle), P.W. 8, Ranjit Guchhait, P.W. 10, S. N. Guchhait, (both cousins) and P.W. 11, Subrata Guchhait, another relation of the victim have corroborated the evidence of the parents of the victim relating to the missing of the deceased on 27.04.2004, keeping of ransom money at Gadiara as well as the recovery of the dead body from the godown of the appellants. Local witnesses viz. P.W. 4, Pulin Hazra, P.W. 5, Ratan Chandra Mallick, Prodhan of the village and P.W. 15, Kashinath Guchhait, member of the Panchayet have deposed with regard to the recovery of the dead body from the godown of Chandi Charan Guchhait, father of the appellants. P.W. 5, Panchayet Pradhan, claimed that Chandi Charan Guchhait handed over the key of the said godown.

P.W. 19, Chandi Charan Guchhait, father of the appellants was examined in the instant case. He was declared hostile. Nonetheless, he corroborated the prosecution case with regard to the recovery of the dead body from their godown. He admitted Panchayet Pradhan (P.W.5) had asked him to bring the key of the godown. He, however, denied that the hand-writing in the ransom note was that of his son, Aparesh was declared hostile.

P.W.13, Babul Aich, was an S.I. of police attached to Tamluk Police Station. He recorded the information that a foul smell was coming from the house of Chandi Guchhait as G.D. Entry No. 1783 dated 30.04.2004 as well as G.D. Entry No. 1783 dated 30.04.2004. He registered Tamluk P.S. U/D Case No. 149 of 2004 dated 30.04.2004 and conducted investigation in the said case. He proved his signature on the inquest report marked as exhibit-12. He seized various articles including the lock and key of the said godown under seizure list marked as exhibit-5.

P.W16, Niranjan Kumar Gantait, Magistrate held inquest over he body of the victim. He proved the inquest report.

P.W. 12, Dr. Pradip Kumar Das, held post mortem report over the body of the deceased, Chiranjit Guchhait, and opined that cause of death was asphyxia resulting from throttling, which was ante mortem in nature. He proved the post mortem report marked as exhibit-8. In cross-examination, he deposed that he did not state when the deceased had expired.

P.W. 18, Gopal Chandra Ghoshal, SI of police posted at Tamluk P.S deposed that written complaint of P.W. 1 was received at P.S on 29.04.2004. He proved the formal F.I.R. He assisted the I.O (P.W.20) in the investigation of the instant case and wrote the seizure lists (Ext. 2 and 3) regarding seizure of ransom note and some exercise books and a book titled Sanchita containing handwritings of Aparesh.

P.W 20, Dipak Sarkar, is the first investigating officer in the instant case. He proceeded to the place of occurrence and prepared a rough sketch map of the place of occurrence marked as exhibits 17 and 17/1. He seized the ransom note as well as exercise books from the house of the appellants. He arrested Aparesh on 01.05.2004 and Animesh on 04.05.2004 from Uttar Usatpur. He recorded statements of witnesses.

P.W. 21, Kaushik Dutta, is the second investigating officer in the instant case. During investigation he sent two documents, letter and specimen hand-writing to CID for opinion. He submitted the charge-sheet.

P.W 17, D. V. Srinivas, is the Magistrate, in whose presence specimen hand-writing of Aparesh Guchhait was taken in four sheets. He proved the documents marked as exhibit-7.

P.W.9, T.K Banerjee, handwriting expert deposed that the disputed writings (B-1 and B-2) matched with the specimen writings (A-1 and A-2). He proved his report (Ext.6).

From the evidence on record particularly that of P.W. 2 it is evident that the deceased went missing in the morning on 27.04.2004 and his dead body was recovered from a godown owned by the family of the appellants on 30.04.2004.

Autopsy surgeon, P.W. 12, opined that the deceased had suffered asphyxial death due to throttling, ante mortem and homicidal in nature. Hence, there is no doubt that the deceased, a 9 year old paralytic boy, had been kidnapped from his house on 27.04.2004 and thereafter had been brutally murdered. Evidence of P.Ws. 1 and 2, parents of the deceased as well as other relations and local people establish that on the date of his kidnap a ransom note was recovered demanding Rs. 2 lakhs as ransom purportedly by a dacoit. On the basis of the said ransom note P.W. 1, father of the deceased, along with other relations and neighbours had gone to Gadiara, Howrah, to keep the ransom money. Appellants, however, refused to accompany them and one of them i.e. Aparesh, left the spot. On 29.04.2004 F.I.R. was registered with regard to kidnapping and demand of ransom. Ransom note was seized in the course of investigation and as per opinion of P.W. 9 hand-writing expert the ransom note matched with the specimen writing of the appellant no. 1, Aparesh. Report has been proved by P.W.9 marked as Ext-6 and his opinion remains unshaken in the course of cross-examination.

Body of the deceased was recovered on 30.04.2004 from a godown in the control and custody of the family of the appellants. Chandi Charan Guchhait, father of the appellants, had handed the key to the godown. P.W.13 seized the lock and key to the godown at the time of recovery of the dead body. The evidence on record, therefore, leaves no doubt in one's mind that the dead body of the deceased was recovered from a place which was in the control and custody of the family members of the appellants. It has been argued that vital facts like keeping of ransom money at Gadiara and suspicion in the mind of P.W.1 that ransom note was in the handwriting of Aparesh are omitted in the F.I.R. One must appreciate that the F.I.R. was lodged by P.W. 1 when he was in a distressed state of mind. His 9 year old son had gone missing and in spite of efforts to recover him, he had failed to do so. Further there was lurking fear in the mind of P.W. 1 that any aggressive step on his part may result in loss of life of his son who was in the clutches of his kidnappers. When one examines the F.I.R. in this backdrop failure to state all particulars of the incident in graphic details is clearly understandable. It is also a settled proposition of law that F.I.R. is not an encyclopedia of all facts and omission of any fact therein cannot ipso facto, affect the credibility of the prosecution case if such fact is otherwise established from the attending facts and circumstances of the case. Keeping of ransom at the Gadiara by P.W.1 in response to the ransom note written by appellant no.1 Aparesh Guchhait has been established not only from the evidence of the parents of P.Ws 1 and 2 but is also corroborated by independent witnesses as well as the opinion of the handwriting expert, P.W.9. Desperate bid of P.W.19 to save his son by claiming that the ransom note was not by his son, Aparesh, cannot be a ground to reject the well-reasoned scientific opinion of P.W. 9. Handwriting expert (P.W.9) has given elaborate reasons for coming to his conclusion that the disputed writings matched with the specimen wrtitings obtained from the appellant no. 1. Cross-examination of P.W. 9 does not discredit such opinion and this Court has taken due care by putting the aforesaid evidence to the appellants particularly appellant no. 1 for his explanation by holding further examination of the accused under Section 313 of the Code of Criminal Procedure in the course of hearing of this appeal in the light of the law laid in the case of State of Punjab vs. Naib Din reported in (2001) 8 SCC 578. Collection of specimen hand-writings of appellant no. 1 for verification with the disputed writings has also been proved by the evidence of the Magistrate (P.W.17) in whose presence the hand-writing of appellant no. 1 was taken. Investigating Officer (P.W.21) deposed the disputed writings and the specimen writing so collected were sent to expert for verification and his opinion (Ext. 6) was exhibited during the trial. The aforesaid evidence on record, therefore, establish beyond doubt the fact that the ransom note was in the hand-writing of the appellant no. 1 and none else. It appears from the evidence of P.W. 1 that he was a successful businessman dealing in mosquito nets. Appellant no. 1 was in need of money and had demanded a loan from him sometime ago. Subsequently, appellant no. 1 kidnapped his child, and demanded ransom of Rs. 2 lakhs from P.W. 1. Upon discovering the ransom note written by appellant no. 1, P.W1 being accompanied by local people and others went with the ransom money at the proposed site i.e. behind Mangaldeep Lodge at Gadiara and kept the money at the spot. Appellant no. 1, however, became afraid and did not go to collect the money. Out of fear he murdered the child and hid his body in the godown which was exclusively in the control and custody of his family members.

Culling out the specific roles of the appellants from the aforesaid evidence on record it appears that the prosecution has been able to prove the following circumstances against appellant no. 1 beyond doubt.

1) Appellant no. 1 was in need of money and had demanded a loan from P.W. 1, his relation and a successful businessman.

2) He behaved abnormally at the time when the P.W 1 and others were searching for the victim and refused to go with them to the spot to keep the ransom money. On the other hand, he hurriedly left the spot.

3) Handwriting in the ransom note matched the specimen handwriting of the said appellant

4) Body of the deceased was recovered from the godown which was accessible to appellant no. 1 being in the exclusive control of his family members.

The aforesaid circumstances establish beyond doubt the culpability of the appellant in kidnapping the deceased, making the ransom, demand via the ransom note executed by him and finally murdering and secreting his dead body in his family godown. Prosecution case against appellant no. 1 is, therefore, proved beyond reasonable doubt. Regarding the role of appellant no. 2 I note that the prosecution has relied on the following circumstances :

(a) he did not accompany P.W 1 and others to keep the ransom money at Gadiara as per the ransom note.

(b) on the next date i.e 28.4.2004 he had asked P.W.2 and 3 to tell P.W 1 to go to the spot alone with the ransom money.

I am afraid that the second circumstance has not been established by the prosecution beyond doubt. No doubt, P.Ws 2, 3 and 5 claimed that Animesh had stated such fact to them and P.W 2 further claimed that she informed this fact to P.W 1. P.W 1 however, has not corroborated the aforesaid witnesses with regard to such fact. That apart, evidence of P.W 2, 3 and 5 with regard to disclosure of such fact in court appears to be an embellished version when compared to their earlier statements made to Investigating Officer P.W 20. If the aforesaid circumstance is not believed, the prosecution is left with the only circumstance against appellant no. 2 Animesh that the latter had not accompanied P.W 1 and others to keep the ransom money at Gadiara. I am of the considered view such conduct on the part of appellant no. 2 may be for various reasons and would not by itself point to his guilt at Gadiara. Though, some suspicion may arise against the said appellant as the body of the deceased was found in their family godown but to cast the net of culpability in the present case so wide as to involve all family members in the murder of the deceased merely because the dead body was recovered from their godown would be unwise and accordingly, I am inclined to extend the benefit of doubt to appellant no. 2 and acquit him of the charges levelled against him.

However, as the evidence on record unerringly discloses the role of appellant no. 1 in kidnapping the victim for ransom and subsequently murdering and secreting his dead body in the godown. I hold him guilty for commission of offence punishable under section 364A/302/201 IPC. Conversion of his conviction from 364A/302/201/34 IPC to 364A/302/201 IPC simplicitor in the facts of the present case where his exclusive role is wholly established, does not cause prejudice to him or occasion failure of justice. Accordingly, conviction of appellant no. 1 as aforesaid and sentence imposed upon him on such counts are upheld.

Conviction and sentence of appellant no. 2 are set aside.

The period of detention suffered by appellant no. 1 during investigation, enquiry or trial shall be set off against substantive sentences imposed on him in terms of Section 428 of the Code of Criminal Procedure.

Appellant no. 2 shall be discharged from his bail bond after expiry of six months in terms of 437A of the Code of Criminal Procedure.

The appeal is partly allowed.

Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.

Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

I agree.