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Judgment
S.K. Sen, J.—This is a Reference u/s 374 of the Code of Criminal Procedure for confirmation of the sentence of death passed on the prisoner Sisir Kumar Chatterjee ailias Dalu, u/s 302 of the Indian Penal Code, for the murder of his sister-in-law, Mira Chatterjee. There is also an appeal by the prisoner which has been heard along with the reference.
The prosecution case is briefly as follows:
The deceased Mira Chatterjee aged about 20, was the wife of Sunil Chatterjee alias Baru, a twin brother of the prisoner Sisir Chatterjee alias Dalu but born a few minutes earlier.
Sunil Chatterjee used normally to reside at the house of his father Jagadish Chatterjee at (Baguihati, Police Station Rajarhat, near Barasat in 24-Parganas district. On the date of occurrence, April 17, 1960, which was an Easter Sunday, Sunil Chatterjee, husband of Mira Chatterjee, was not at home having gone with some friends on a motoring expedition to Darjeeling side. The prisoner Sisir Chatterjee used: to serve as a constable of the Calcutta'' Police, and at the relevant time was attached as a member of the Dock Police at Kidderpore his number in the force being 315. On the date of occurrence at mid-day, after taking their meals, Mira Chatterjee and her sister-in-law Bani Chatterjee (sister of Sunil Chatterjee and Sisir Chatterjee) aged about 23 went to a tube well situated within the compound of the house of Jagadish Chatterjee in order to wash utensils. When cashing of utensils was over, Bani Chatterjee took the utensils with her and stacked them at the proper place in a covered verandah. Mira Chatterjee was then washing two napkins to which washing soda had been applied. After stacking the utensils at the proper place, (Bani Chatterjee took a "Patrika" from a table of her father''s room and went to her mother''s room for reading'' the "Patrika". She noticed in her father''s time piece that it was then 1-25 p.m. When she started reading the "Patrika" there was suddenly a loud scream by Mira Chatterjee, and she then rushed to the verandah and found Mira Chatterjee coming from the northern side, and she came and clasped Bani who got some blood-stains on her Sari. Bani asked Mira what, was the matter, Mira could not say anything, but pointed towards the backside with her finger. Following the direction indicated. Bani noticed that the northern door towards the garden of the house was open and heard a sound from the yard and noticed through the window that a tall man was hurriedly going out by the back door of the courtyard. Thinking that some thief had entered and not having realised that (Mira had been severely stabbed, she pursued the man crying, "Catch him, Catch him". Biva, Chatterjee, widow of the elder brother of Sunil Chatterjee, was then in the house, and she also joined the chase of the man who was seen running - away. One Pankaj Ganguli of the" neighbourhood also picked up the chase and outstripped the ladies Bani and Biva Chatterjee. None of them could catch hold of the man who was running away. At a certain distance, near file house of P.W. 2 Ranibala Das, wife of Baren Das, the man was seen to drop something. This was picked up by Bani Dhatterjee and the thing was found to be a pair of wollen gloves. At that time. Bani''s mother was heard shouting, "Come and see, "what has happened to ''Mira," and then Biva and Bani Chatterjee both ran back to their house. Tinder the direction of the mother Bani Chatterjee called a doctor P.W. 6, Dr. M.N. Gupta, but P.W. 6 when he arrived, found that Mira Chatterjee was already dead At the post mortem examination which was held next-day by P.W. 19 Dr. A.C. Chakravarti, Medical Officer of Bjjrasat Sadar Hospital, the injury found was an incised gaping wound 11 3/4 x 3/4" on the back, situated 2 1/2" to the left of middle line, and on dissection, the injury was found to have cut through the pleura and the lower lobe of the left lung, and perforated the diaphragm to the extent of about 1" and there was about half pint of fluid blood collected in the chest cavity, while the abdominal cavity contained about one pint of fluid blood and clots. The stomach was found full of undigested rice and other food materials, thus corroborating the story given by Bani Chatterjee that the stabbing took place just after she and Mira had finished their mid-day meal and done some washing of utensils. Before the arrival of the doctor, Biva splashed water on the head and face of Mira, and in taking water from a bucket which was near the tube-well, found a blood stained dagger (Ext. II) in the bucket. Bani when she returned with the doctor found a piece of black cloth (Ext. III) with holes for eyes and nose, on the courtyard near the place for stacking coal.
Information was taken to the thana by a neighbour P.W. 1 Anil Kumar Basu, whose evidence is that he was at a local club known as "Netaji Jubak Sangha" and at about 1-45 p.m. when, he and some other members of the club were listening to the Radio Programme known as "Anurodher Asar", i.e., selected record music a, boy named Kumud Roy, aged 12 or 13, came there and gave the information that Baruda''s wife, i.e., the wife of Sunil Chatterjee, had been murdered, and then the witness Anil Kumar Basu went to Sunil Chatterjee''s house and saw a number of people collected there and he was requested by the people present to run to the police station and lodge an information, as no male member was then at the house except the old master Jagadish Chatterjee, and therefore, the witness wont to the thana and lodged the information which was recorded at the Rajarhat Police Station at 3-25 p.m.
The police of Rajarhat Police Station took up investigation receiving some assistance from, the C.I.D. Police. As the assailant could not be traced on the basis of the evidence which transpired on April 17 and 18, it was decided to make use of a trained police dog named Lucky to trace the assailant. This police dog was brought to the house of Jagadish Chatterjee on April 19, 1960 in the afternoon at about 4-46 p.m., and as a result of an experiment made by the trainer of the police dog; the Investigation Officer arrested the prisoner Sisir Chatterjee alias Dalu who was then present being as already stated the younger twin brother of Sunil Chatterjee the husband of the deceased lady. The police, after completing the investigation, submitted charge sheet against the prisoner in due course u/s 302 of the India Penal Code.
The accused pleaded not guilty, and his defence was that at the time of occurrence he was actually at Kidderpore where he had gone to discharge his duty in the P.P. Section (Prosecution Report Section) of the Dock Police. His further defence was that on that day, there not being much pressure of work, it being ;a Sunday, he went to the quarters of Police Sergeant Anil Sarkar who had acquired a Radio recently, and listened to the musical programme "Anurodher Asar" from 1-40 p.m. to 2-30 p.m. in Sergeant Sarkar''s quarters, and that he went home in the afternoon after the police of Pajarhat had arrived at the scene, and that he had nothing to do with the stabbing of his sister-in-law.
In support of this plea of alibi, two defence witnesses were examined. Evidence in support of the alibi was also obtained from two of the constable examined as prosecution witnesses.. The Jury, however, in view of the evidence led by the prosecution that the prisoner had been seen going to Baguihati by a bus at about the mid-day and had been seen running away from home at Baguihati shortly before the programme of "Anurodher Asar" started rejected the defence alibi and unanimously found the prisoner guilty of the charge u/s 302 of the Indian Penal Code. The learned Judge accepted the verdict and sentenced the prisoner to death.
In connection with the appeal by the prisoner, Mr. A.X. Dutt has urged that the learned Judge admitted inadmissible evidence, in as much as one of the two defence witnesses, namely, Sergeant Anil Sarkar and the court witnesses like Bani Chatterjee and Pankaj Gangully, were permitted to be cross examined with reference to their statements before the Investigating Officer, and their statements before the Investigating Officer were proved. Mr. Dutt has also urged that the accused was prejudiced because although in course of his evidence, the Investigating Officer P.W. 25 S.K. Das was not permitted to give details of how the trained police dog Lucky traced the prisoner as the assailant, still in reply to a question by the foreman, the Sub-Inspector gave we details of that experiment and although that evidence was ultimately disallowed and not recorded on the objection of the defence lawyer, still the jury heard a description of most of the experiment before, the objection was taken and disallowed, and that this prejudiced the accused in his trial. Mr. Dutt has also urged in this connection that when the description of the manner in which the police dog traced the accused as the assailant was inadvertently placed before the jury, the learned Judge ought to have given a caution that the result of the experiment was by no means conclusive but he did not give such a caution.
As regards the first point urged by Mr. Dutt, we must agree that the learned Judge ought not to have allowed the defence witness Sergeant Sarkar to be cross examined with reference to his statement made before the Investigating Officer. Section 162 of the Code of Criminal Procedure provides only that when a witness is called for the prosecution, he may be cross examinee by the defence with reference to his statement before the police and may also be cross examined by the prosecution with the permission of the Court. ''There is, however, no provision for cross examination of a witness with reference to his statement before the police when the witness is examined for the defence or when the witness is examined as Court witness. In this connection we may refer to the decision Bhupal Chandra Naskar v. Emperor'' (1940) 44C.W.N. 451, where it was held that the statement before the police could be used by the defence only to contradict the person who was examined as a witness for the prosecution, but not when lie was examined as a court witness. This decision was given before the amendment of Section 162, Code of Criminal Procedure, by the Act of 1955. Under the present law, the statement made before the Police Officer can be used even by the prosecution with the permission of the court when the witness is examined as a prose cution witness. But the position in respect of a Court witness and in respect of a defence witness remains the same as under the old Section 162. and such witness cannot be cross examined with reference to his statement before the Investigating Officer. A decision on this point under the amended Section 162, Code of Criminal Procedure has been marie by the Andhra Pradesh High Court vide In Re Vajrale Kote Reddi AIR I960 AP 76, where it was held that the witness examined for the court in the interest of justice, could not be said to be witness called for the prosecution and there, was no basis for the fiction that any witness who was in fact not called by the prosecution might be deemed to be a witness for the prosecution and in view of the clear language of Section 162, Code of Criminal Procedure it must be held that a witness when examined by the Court as a Court witness could not be cross examined with reference to his statement before the police. The same position holds with all the greater force in respect of a defence witness. Accordingly it must be held that the learned Judge, in so far as he permitted the defence witness Sergeant Sarkar and the Court witnesses Bani Chatterjee and Pankaj Ganguli to be cross examined with reference to the police statements, followed a wrong procedure and admitted evidence which was inadmissible.
In a reference u/s 374 of the Code of Criminal Procedure, we have to go into the evidence and the evidence must be considered after eliminating the inadmissible portions. It is not necessary for this reason to send the case back for a retrial. It may be added that Mr. Dutt, appearing for the condemned prisoner does not seek a retrial.
As regards the other point urged by Mr. Dutt the Investigating officer was permitted to describe the mode in which the police dog Lucky traced the assailant, when a question on the point was put by the foreman, although that evidence was not actually recorded in view of the objection of the defence, there is nothing in the record to show this, but there is a petition on the record of the learned Additional Sessions Judge to show that in reply to a question by the foreman, the Investigating Officer was permitted to describe the experiment by the Police dog in part before the said was finally ruled as inadmissible. The learned D.L.R. appearing for the State, has urged that the evidence as to the mode in which the police dog Lucky traced the assailant was not really inadmissible, and that the learned Judge made a mistake in disallowing the evidence on the objection of the defence. It is a matter of common knowledge that certain species of dogs like Hounds and Alsatians can trace people by following their scent. Recourse is, therefore, taken to the services of trained dogs from time to time in order to trace the assailant when something has been left behind by the assailant from which his peculiar scent can be brought to the notice of the trained dog. Where a trained dog in the circumstances traces an assailant by following the scent it cannot be said that the evidence is inadmissible. In my opinion this would be admissible u/s 11(2) of the Indian Evidence Act, under which facts which are not otherwise relevant, are relevant if by themselves or in connection with other facts they make existence or nonexistence of any fact in issue or relevant fact highly probable or improbable. Thus if a trained dog by following the scent of the assailant from any article left behind by the assailant traces the assailant it may be said that it is probable that the man so traced is the assailant, but the evidence is by no means conclusive because the trained dog may make a mistake or there may be a defect in bringing the scent to the notice of the dog. It would be desirable therefore that the details of the process by which the trained dog traced the assailant he brought before the court and the trainer of the dog under whose direction the experiment was performed be subjected to cross examination. In the present case this course was not followed and the learned D.L.R. has, therefore, suggested that we should direct additional evidence to be taken on the point u/s 374 of the Code of Criminal Procedure, if the High Court thinks that further inquiry should be made into or additional evidence taken upon any point bearing upon the i guilt or innocence of the convicted person, it may make such inquiry or take such evidence or direct it to be made or taken, by the court of Sessions.
It is no doubt true that we could have given such direction u/s 375, Code of Criminal Procedure, on the learned Additional Sessions Judge to record the evidence as to the mode in which the police dog traced the assailant, but as already indicated, in our opinion, tracing of the assailant by the police dog would be only one item of circumstantial evidence against the accused, and by itself it would by no means be conclusive, this evidence would require to be corroborated by other independent evidence. In the present case in view of the state of other evidence which will be presently discussed, we do not think that any useful purpose would be served by giving a direction u/s 375, Code of Criminal Procedure, for recording the mode in which the police dog Lucky traced the assailant from the scent of the black cloth mask found in the courtyard near a coal stack or the scent of the pair of gloves dropped by the assailant.
Since the evidence as to the mode in which the police dog Lucky traced the assailant was not ultimately admitted, hat ruled as inadmissible in the presence of the Jury, necessarily the learned Judge did not think it necessary to give any warning to the Jury that the evidence of tracing of the prisoner by the police dog was by no means a conclusive evidence. The learned Judge in his charge did not deal with this item of circumstantial evidence at all. He dealt with the other evidence in the case. Accordingly, we cannot say that there was a misdirection in this respect in the charge of the learned Judge.
The only material defect in the mode of conducting the trial by the learned Additional Sessions Judge was the admission of the police statements of two of the court, witnesses and one defence witness. As we have already indicated for that reason alone we do not think it necessary, to order a retrial because we have to consider the evidence for ourselves in any case, and we can easily eliminate the inadmissible portion of the evidence.
In this case, there is no doubt that the'' young lady Mira Chatterjee wife of Sunil Chatterjee, was fatally stabbed at about 1-20 or 1-25 p.m. on April 17, 1960, when she was washing napkins at the enclosed tubewell in the compound of her father-in-law''s house at Baguihati. The fact that Mira Chatterjee is dead was proved by all the inmates of the house like P.W. 7 Biva Chatterjee, widow of Sunil Chatterjee, elder brother; C.W. 1 Bani Chatterjee, sister of Sunil Chatterjee, C.W. 3, Subhasini Chatterjee, mother-in-law of the deceased as well as some neighbours who were examined. The body was identified before P.W. 19 Dr. A.C. Chakravarti, Medical Officer, Barasat Sadar Hospital, who held post mortem examination on the body on the following day, April 18, 1960, at 7 p.m. and the death was found to be due to a stab injury on the back as already, described, which perforated the lower lobe of the left lung and also perforated the diaphragm. It is clear, therefore, that the murder of Mira Chatterjee was committed at about 1-20 or 1-25 p.m. on April 17, 1960. by some assailant, by means of a dagger. The question is whether it was the prisoner Sisir Chatterjee, brother in law of the deceased who was responsible for thus causing the death of Mira Chatterjee.
There is no direct evidence on the point. The prosecution has relied chiefly on the evidence of 4 witnesses to indicate that Sisir Chatterjee the prisoner, although he should have been on duty at Kidderpore at the particular time and was, according to his statement on duty at Kidderpore or relaxing himself at Kidderpore, was actually present at Baguihati and was seen running away from the house of his father, just about the time of the occurrence.
These witnesses are P.W. 2, Ranibala Das, wife of Baren Das, P.W. 3, Nandita Roy Choudhury, a school girl of 13 or 14, daughter of Sudhir Kumar Roy Chaudhury, P.W. 4, Narayan Chandra Bbattaeharya and P.W. 9 Kala Chand Basak. Before dealing with the evidence of these witnesses, it would be useful to refer to Ext. 8, a rough sketch map of the place of occurrence as prepared by the Investigating Officer. In this rough sketch map, the track followed by the assailant as he was seen running away by C.W. 1. Bani Chatterjee and P.W. 7, Biva Chatterjee and other witnesses is indicated by a dotted line. The assailant emerged out of the compound of the dwelling house of Jagadish Chatterjee by a Khirki gate in the northern side of the eastern side of the compound wall into the garden, and from the garden he took a northward course and then struck towards the west and reached the eastern bank of the Khal indicated by the letter "Z'''' and running north and south, and then turned eastwards again. The house of Baren Das or Ranibala is to the north of the homestead of Jagadish Chatterjee, and is indicated in the sketch map by the letter K. The house of Nandita or rather her father Sudhir Kumar Roy Chaudhury is also to the north of the track followed by the assailant and is indicated in the rough sketch map by the letter It would, therefore, appear from the topography that P.W. 3 Nandita Roy Chaudhury if they were outside their rooms at about the time of the occurrence, would have opportunity of seeing the assailant running away.
The evidence of P.W. 2, Ranibala Das is that on 17th April, Sunday at about 1 or 1-30 p.m. she was sitting on the southern verandah of her house; that the southern face of the verandah is protected by a brick wall rising to a certain height and by iron railing above the brick wall, but the witness explained in re-examination that there is a door leading into the verandah and the witness was sitting near the door of this verandah and she could see what was happening outside. She stated that she-noticed a man running from the east towards the west, i.e., towards the Khal which is eastwards of her house; that she could see the features of the man and did not know the man from before, that she noticed the man drop down something and that a widow and a girl came running behind him, and they picked up the thing which the man had dropped down; that she asked what the matter was and" that the unmarried girl replied that it was a thief running away. The girl and the woman then went away. Some time later the witness heard a sound of cry coming from the southern side, i.e., from Jagadish Chatterjee''s house, and she went there and saw that a woman was lying murdered and that the woman was Mira Chatterjee. This witness did not know the assailant before. Accordingly, a T.I. parade was arranged-the T.I. parade being conducted by P.W. 24 Shri M. C. Sen Magistrate, 1st Class, Barasat on June 17, I960. At the T.I. parade, Ranibala Dasi indentified the suspect Sisir Chatterjee as the man who was seen running away on the date of murder, i.e., Sunday at about 1-30 p.m. The prisoner was however, arrested by the police on April 19, I960, i.e., after two days, of April 17, 1960. It is, therefore, surprising that the T.I. parade should have been arranged to take place as late as on June 17, 1960, just two months after the murder. The witness explained that on receiving an information about her mother''s illness, she had to go to her father''s house at Natore now in East Pakistan, and that she returned from Natore about a month after she had gone there and a few days after her return she was taken to the T.I. parade. But according to her own evidence she was at home for 15 days after this incident. Within that period, therefore, there was sufficient time to take her to a T.I. parade. Mr. A.K. Dutt has urged that on April 19, I960 when the police dog Lucky was brought to the village for tracing the assailant, there was a great commotion in the village and many people both men and women went to the house of Jagadish Chatterjee to see the experiment with the police dog. The witness Ranibala no doubt stated that she did not go to the house of Jagadish Chatterjee on April 19, 1960. Since the house of Daren Das, husband of Ranibala is very close to the house of Jagadish Chatterjee it is difficult to believe that Baren Das and Ranibala should not have gone to Jagadish Chatterjee''s house at the time when police dog was brought to the village said when there was a great excitement. If the witness had gone to Jagadish Chatterjee''s house at that time, she would have had an opportunity of looking at the prisoner when he was placed under arrest as a result of the experiment with the police dog. In the circumstances it is difficult to place much reliance on the identification of the accused by P.W. 2 Ranibala Dasi.
P.W. 3, Nandita Roy Chaudhury, a school girl of 13 or 14, stated that she used ordinarily to reside at her uncle''s house at Haghbazar as she had to attend school; but that on April 17, which was a sunday she went to her mother''s house at Baguihati and at about 1-30 p.m. or 2 p.m. she was seated on the verandah of her house at Baguihati and saw a man running away and the man had a blue Shirt and a white Paijama on his person. She did not see anybody running after that man. She was also examined by the police on April 18, 1960, but in her case also identification parade was held on June 17, 1960 by P.W. 24. The delay was sought to be explained by eliciting from the witness that some days after the incident she went to Asansole from Calcutta in connection with her Mastato cousin''s marriage and stayed at Asonsole for 8 or 10 days and then returned to Calcutta. This evidence even if true does not really account for the delay of 2 months in taking this girl to the T.I. parade. Mr. Dutt has pointed out that the witness in her enthusiasm stated much more than she could really have seen. For she stated that the man passed her house on the southern side from east to west and then followed the pathway along the Khal for some distance towards the north and again turned east wards. As this witness was on the verandah on the southern part of her house, it was hardly possible for her to see that the man turned towards the east after going north which would be at some distance to the back of the house of the witness. In the circumstances as in the case of P.W. 2, it is not possible to place much reliance on the evidence of P.W. 3, Nandita Roy Chaudhury.
Next we have the evidence of P.W. 4 Narayan Chandra, Bhattacharya, whose house is indicated by the letter W in the sketch map Ext. 8. It is situated on the western bank of the Khal. i.e. from a certain distance. There are. also some other could only have seen the accused running away from across the Khal i.e. from a certain distance., There are also some other houses indicated by the letters P, Q. R, S, T, U and v. on the western bank of the Khal situated north or north-east of the house marked W and when the witness was looking through the gap between the houses U and v. his vision must have been restricted to a short distance only, a fact which was admitted by this witness in cross-examination where he stated that he noticed the man running for about cubit across the meadow till his vision was obstructed. The witness stated that on April 17, 1960 he was sitting on the eastern verandah of his house; that he was sitting there from about 12-30 p.m. and he was still there when the Radio programme Anurodher Asar was played in the drawing room of his house, but he was seated on the verandah outside the drawing room. He stated that sometime before Anurodher Asar programme started, he noticed the accused Sisir Chatterjee. alias Dalu, whom he recognised, hurrying away coming from eastern side and going towards the west across the meadow south of Baren Das''s house and that he noticed Baren Das''s wife-coming out. He also noticed Bani Chatterjee and her widowed sister-in-law running after the accused. He saw them pick up something which had been thrown down there by the accused and then going back. The witness stated that at about 3-00 p.m. that day he heard from Para boys that Sunil Chatterjee''s wife had been murdered and then he went to the house of Jagadish Chatterjee, or Sunil Chatterjee, and some time after his arrival the accused came home and stated that he was coming home from office, and the witness was surprised because he had seen Sisir Chatterjee alias Dalu earlier in the day, and he reported this: to his mother, saying that Dalu was saying that he had just come from Office, but he had seen him earlier in the day hurrying away and that it was curious.
This witness''s mother Rakhal Dasi Dasi was examined as P.W. 5 in order to corroborate the witness. Rahal Dasi Debi stated that she saw Narayan sitting on the verandah when Anurodher Asar programme was on, and her second son and some grandchildren were in the sitting room where the radio was being played and that in the late afternoon of the day her son Narayan told Tier after returning from the Baganbari, i.e., Jagadish Chatterjee''s house, that he had seen Dalu coming out of the house and going across the meadow and then by the bank of the Khal. This witness did not say in Court that her son Narayan told her that Sisir was claiming to have come home just then from office, i.e., at about 4-30 p.m., but that he had seen Dalu before although the witness did say that Narayan had told her that he had seen Dalu coming out of the house and going across the meadow and then running away along the bank of the Khal. This witness was cross-examined with reference: to her statement recorded by a Magistrate. P.W. 24 u/s 164, Code of Criminal Procedure That statement recorded by the Magistrate, P.W. 24 was proved and marked as Ext. C. The Magistrate recorded her statement on June 13, 1960. There Rakhal Dassi stated that when it was learnt that the wife of Baru, alias, Sunil Chatterjee, had been murdered, Narayan told her that when he had been listening the programme Anurodher Asar, he had seen Dalu alias Sisir Chatterjee, coming out from, the house and running, and after returning from that house Narayan said that he had heard that Sisir was not at home, but he had seen him running away after coming out of the house.
That the statement which Rakhal Dasi made before the Magistrate on June 13, 1960, did not quite corroborate the evidence of Narayan Bhattacharya or even the evidence of Rakhal Dassi herself in court.
The more important point is that Narayan Bhattacharya was not examined by the investigating officer until April 23, 1960, i.e., six days after the occurrence. It has already been mentioned that on April 19, 1960, i.e., two days after the occurrence, there was a great deal of excitement in the village, because the police dog Lucky was brought to the village and an experiment was made with the dog by getting it to trace the scent of the things left behind by the assailant. Narayan stated that he did not go to Jagadish Chatterjee''s house at the time when the police dog came and experiment was made with it. It is, however, difficult, to accept that evidence, and once it is held that he had gone to Jagadish Chatterjee''s house at the time when the police dog came and the experiment was made with it, it would be natural to hold that Narayan Bhattacharya would state then and there to the police officer present that he had seen Sisir Chatterjee alias Dalu running away at about 1-15 or. 1-20 p.m. on the date of occurrence. There is, therefore, no explanation why he should not have been examined by the police until April 23, 1960. The discrepancies in the evidence of Narayan and his mother Rakhal Dassi including Ext. C further go to confirm the doubt as to the veracity of Naranyan as to having recognised the accused as the assailant who was running away.
There remains the evidence of P.W. 9 Kala Chand Basak. This witness also belongs to Baguihati, but has his father-in-law''s house at Nilmoni Mitra Street in Calcutta. He stated that on April 17, I960 he took his wife and children at about 7 O''CLOCK in the morning to visit his father-in-law''s house, and leaving his wife and children at his father-in-law''s house at Calcutta he set out again for Baguihati and Boarded a tram car at 11 a.m. at the junction of Grey Street and Jatindra Mohan Avenue and came to, the junction of Indra Biswas Road and got into bus No. 30C from there for Baguihati between 11-30 and 11-40 a.m. that there was a great crowd in the bus, but near the Bharat Colony some passengers got down and he got a seat and after some more passengers had got down he noticed Sisir Chatterjee alias Dalu sitting next to him and he noticed Sisir Chatterjee getting down at the proper stoppage for his home at Baguihati and it was then between 12 and 12-15 p.m. The witness went on to say that he got down a stoppage or two later at the proper place for his own house, and after taking his mid-day meal at home he set out on a cycle for Calcutta between 3-30 or 4 p.m. and at about 8-30 or 9 p.m. he returned home from Calcutta and then he learned about the murder of Sunil Chatterjee''s wife, and that he met Anil Bose next morning and told him about having met Dahi in the bus at mid-day on the previous day, i.e., April 17, 1960, P.W. 1 Anil Kumar Basu corroborated this evidence saying that he met Kala Chand Basak BTL April 18 and that at that time one Prosanta Kannakar was also with him and Kalachand stated that he had boarded a bus No. 300 at the junction of Indra Biswas Road and Belgachia Road, and- that after the bus had passed the Bharat Colony, Kalachand found Dalu.seated beside him in the bus; but P.W. 1 Anil Basu in his statement did not give the time when Kalachand Basak is said to have met Dalu seated next to him in the bus, and this omission, makes the evidence of this witness worthless as corroborating evidence. Prosanta Karmakar mentioned above was tendered as a witness by the prosecution- being P.W. , 10, and he. was cross examined by the defence. He stated that he accompanied Anil Basu when Anil Basu went to the thana for lodging'' the First Information Report. In the course of such cross examination, the witness stated that he was present when Kala Chand Basak talked with Anil Bose and told him that he had seen Dalu in the bus and that Dalu got down from the bus at the appropriate stoppage for his house and that it was then about mid-day. But the witness also admitted in the course of cross, examination that, at about 8 or 9 p.m. in the evening of the day of the occurrence, the witness met Kala Chand Basak on the Khal side where the murder of Jagadish Babu''s daughter-in-law was discussed, and it was stated that Jagadish Babu was an old man and that his sons were not at home and at that time Kala Chand Basak did not say that he had met Dalu in the bus to Baguihati and seen him get down at the appropriate stoppage for home between 12 and 12-15 p.m. It has, therefore, been urged by Mr. Dutt that the evidence of Kala Chand Basak also ought not to be accepted. There is the further circumstances that Kala Chand Basak also was not examined by the Investigating Officer until April 23, 1960. He was examined on the same day as Narayan Bhattaoharjee and his mother Rakhal Dassi Debi were examined. The Investigating Officer stated, that he looked for Kala Chand Basak after examining Anil Kumar Bose on April 18, 1960, but could not then get Kala Chand Basak. Since, however, Kala Chand Basak belong to the locality, Baguihati, and the police officer was at the locality for a very long time both on April 18 and 19. It is difficult to understand why Kala Chand Basak could not be traced before April 23, 1960.
In view of the above circumstances, there must be some hesitation in accepting Kala Chand Basak''s evidence also as true and reliable. The circumstances indicated above are not sufficient for coming to the conclusion that Kala Chand Basak is altogether unworthy of credit. In this case, however, there is a body of evidence in support of the plea of alibi of the prisoner, which evidence will be presently discussed, and it is not possible to accept the evidence of Kala Chand Basak in preference to all that evidence of alibi.
The prisoner was arrested by the Investigating Officer at about 4-45 p.m. or 5 p.m. on April 19, 1960 after the experiment with the police dog Lucky. It appears that then and there the prisoner was questioned and there is evidence to show that Sergeant Sarkar, D.W. 2 was examined by the Investigating Officer on April 20, 1960 in consequence of the statement made by the prisoner, and D.W. 1, Inspector MacDonald, was examined also on April 20, 1960 by the Additional Superintendent of Police, 24-Parganas. It would appear, therefore, that the prisoner had given a story of alibi as soon as he had been arrested and that is why these two officers were examined on April 20. D.W. 1, Inspector MacDonald stated that he was then attached to Kidderpore Dock Police and that the prisoner was a constable under him; that the Inspector came to duty on April 17, 1960,and left his office for his quarter at 1 p.m.-and did not thereafter return to office, and that when he was waiting at a bus stop outside the office he saw the prisoner between 1 and 1-30 p.m. and spoke to him saying that while the Inspector had to work on Easter Sunday the prisoner was enjoying Easter Sunday. He explained this in reply to a ''question by the Court, by saying that Sisir Chatterjee looked happy and gay when walking along the road and that is why the witness stated to him that he was enjoying Easter Sunday while the Inspector himself had to work. The witness further stated that at about 11 a.m. of April 17, Sisir Chatterjee had come to his room in the office and wished him good morning. Thus this witness claimed to have seen Sisir Chatterjee at Kidderpore at the Dock Police Office and just outside the Dock Police Office at 11 a.m. and 1 to 1-10 p.m. respectively. If that evidence is true it would make the presence of Sisir Chatterjee at Baguihati between 1-15 and 1-30 p.m. very unlikely. The distance between Kidderpore Dock Police Office and Baguihati was stated by the Investigating Officer, P.W. 25. He stated that the distance between Shyambazar to Esplanade via Chittaranjan Avenue would be 4 or 5 miles, and the distance from Dharamtola crossing at Esplanade to Kiddepore Bridge along the maidan would be 2 or 2 1/2 miles, and that the Office of the Dock police is near Satyendra Bose Road in Kidderpore at a small distance from the Kidderpore Bridge. P.W. 25 further stated that there was a bus stand at Kajipara, northwest of the house of Jagadish Babu and situated about 10 or 12 minutes'' walk from there, and the buses run from Kajipara to Shyambazar and that it, takes 15 or 20 minutes by bus to come from Kajipara to Shyambazar. Thus in going from the house at Baguihati to the Dock Police office. at Kidderpore the accused would have to walk 10 or 12 minutes to go to Kajipara bus stop and then after getting a bus it would take him 15 or 20 minutes more to reach Shyambazar, and then he has to come by tram or bus to Esplanade Dharamtola junction and then again proceed by bus or tram to Kidderpore, and even if one took a taxi from Shyambazar it would fake, according to the witness, 15 or 20 minutes from Shyambazar to Kidderpore Dock Police Office. In actual fact, if there is traffic obstruction, it might take even 25 minutes or half an hour. In the circumstances it would take not less than one hour under the best conditions to travel from the Dock Police Office at Kidderpore to Jagadish Chatterjee''s house in Baguihati and vice versa. Accordingly, if the evidence of Inspector Macdonald be accepted that he saw the accused at 11 a.m. at the Dock Police Office, and then at 1 or 1-10 p.m. again on the road outside the Dock Police Office, it would not have been possible for the accused to be present at Baguihati between 1-20 p.m.. and 1-30 p.m. when the stabbing took place according to the evidence of Bani Chatterjee and other witnesses. There was no doubt suggestion that Inspector MacDonald might be stating falsely to save the life of a constable working under him, but there appears to be ho particular reason why this Inspector should do so. D.W. 2, Sergeant Sarkar stated that he had purchased a radio few weeks before April 17, I960, and that on April 17, 1960 the accused came to his quarters at about 1-10 to 1-15 p.m., his quarters being at 87C Garden Reach Road, arid that he was there as long as the programme Anuradher Asar was going on, that is, until 2-30 p.m. The evidence of this witness fits in with the evidence of Inspector MacDonald and also with the evidence of a constable P.W. 16, Sudhir Dutta, whose evidence will presently be referred to. Accordingly, even though it has been suggested that Sergeant Sarkar, D.W. 2 might also be giving false evidence as to the time in order to save a constable, it is difficult to accept that suggestion. P.W. 16, Sudhir Dutta is a constable of the Dock Police Office. According to his evidence, on the April 17, 1960 he was on telephone duty at Bankshal Guards where the constables of the Dock Police come for rest, between 2 and 10 p.m. and that he saw the accused Sisir Chatterjee who came to the Guards house at about 2-30 p.m. and said that he would lie down and rest there, and requested P.W. 16 to call him at 3-30 p.m. and the witness did so and the accused thereafter went away at 3-44 p.m. He admitted that he did not see Sisir Chatterjee that day at any time before 2-30 p.m. but he added that he asked Sisir Chatterjee at 2-30 p.m. where he was coming from and the witness replied that he had been listening to the programme Anurodher Asar at Sergeant Sarkar''s quarter. This witness being also a constable of the Dock Police might be sympathetic towards the accused and interested in saving his life by false evidence, if necessary, but in view of the fact that the evidence tallies with the evidence of Sergeant Sarkar and Inspector MacDonald, it is difficult to accept the case that these witnesses were all speaking falsely. The other constable supporting the accused''s defence is P.W. 13, Kalipada Kusari, also a constable of the Dock Police. He stated that Sisir Chatterjee usually used to work in the P.R. Section (Piosecution Report Section). In examination-in-chief he stated that he did not know on what day in April 1960 Sisir Chatterjee came to do his duty at the P.R. Section in the Dock Police Office at Kidderpore and on what days he did not come, but in reply to a question by the Foreman he stated that he saw Sisir Chatterjee that day at about 9-30 or 9-45 p.m. in his office and that he saw him again at 12-45 or 1 p.m. at Bankshal Guards and then he spoke to Sergeant Das enquiring whether he would go to listen to Anurodher Asar at Sergeant Sarkar''s place. This witness was not sure whether that day was Saturday or Sunday and when he" stated in reply to the question of the Foreman that he saw Sisir Chatterjee at about 9-30 and 9-45 a.m. "that day", it was not clear what day he was referring to. The reference to listening ito the programme of "Anurodher Asar" at Sergeant Sarkar''s house tends to show that the witness mean April 17, Sunday, but the programme "Anurodher Asar" is on Saturdays also. Hence even if the evidence ofi this witness is left out of consideration, there remains the evidence of a constable, P.W. 16, Sudhir Dutta, and the evidence of D.W. 1, Inspector MacDonald and D.W. 2, Sergeant Sarkar, whoso evidence is consistent with one another, and whose evidence if accepted, clearly goes to show that the accused Sisir Chatterjee could not have been present at Baguihati at the time when the murder took place. It is no doubt true that all these witnesses being Police constable or Police Officer might be interested in saving the accused who is a constable at the Dock Police Office, but there appears to be no indication that they were deliberately giving false evidence, and as against the evidence of these three witnesses it is not possible to accept the evidence of P.W. 4, Narayan Chandra Bhattacharjee, and P.W. 9, Kala Chand Basak, both of whom were examined by the Investigating Officer on April 23, 1960, that is, six days after the occurrence and whose evidence contains certain doubtful features.
That being the state of actual evidence, and remembering that tracing of the assailant by following the scent by the police dog cannot be regarded as conclusive evidence but is only one circumstance that may be considered against the accused, we must hold that it was not proved beyond reasonable doubt that it was the prisoner Sisir Chatterjee alias Dalu who stabbed Mira Chatterjee between 1-15 and 1-30 p.m. on April 17, 1960. That being so, he must be given the benefit of doubt.
Accordingly, the reference u/s 374 of the Code of Criminal Procedure is rejected and the appeal by Sisir, Chatterjee alias Dalu is allowed. His conviction u/s 302 of the Indian Penal Code and the sentence passed thereunder are set aside and he is directed to be released.
K.C. Sen, J.
I agree.