Mohim Mazumdar vs The State

Ashim Kumar Banerjee, J.—Nobody had seen the victim being murdered. The accused was convicted on the basis of circumstantial evidence. Does the evidence on record justify such conviction, is the question which is posed in this appeal to be decided by us through this judgment?

Facts of the case: One Jagdish Biswas owned substantial plots of land under the Police Station Hut Bay. He was a patient of gastric ulcer, moreover, he was not well-built. He could not manage his own affairs including the act of cultivation. He entrusted this job to one Mohim Mazumdar. Mohim was given a part of the land for cultivation would be enjoyed by Mohim in exchange of his labour given for cultivation of betel leaves. He was also entrusted to look after the cultivation work on the rest part of the land. It was agreed upon by and between them that the usufructs of betel leaves cultivation of the rest of the land. He was also allowed to stay with Jagdish coupled with free food and lodging. When Jagdish came to Port Blair for his treatment, his daughter Sumati was alone in the house. Taking advantage of the situation, Mohim proposed her to marry which Sumati did not agree. After her parents came back from the Hospital, she narrated the incident. Altercation took place between Mohim and Jagdish, Jaghdish asked him to make his own arrangement for stay. According to Mohim, nobody asked him to stay separately. He, of his own, started staying in a hut near the house of Jagdish. Cultivation arrangement, however, continued to remain as it is.

On the fateful day, Mohim had dinner with Jagdish and his family members. After dinner he left for his house. At about 11p.m. he came back and informed Jagdish that a snake entered in his hut. He requested Jagdish to help him to kill the snake. Jagdish followed Mohim to his hut. He was not coming back. His wife Kusum came outside the house to search for Jagdish, when she found that Jagdish was lying dead in the compound outside the house bleeding through his nose. She then raised alarm. She also accused Mohim for killing Jagdish. The Police Station was informed. Police came in the presence of Nirmal, Tarapado, Motilall and one Koya Kutti, residents of the said village. Police arrested Mohim. Police also seized banana leaves near the hut of Mohim having blood stain. Police also seized a Gameha with blood stain found within a drum near the well. Police also seized a Lungi which was worn by Mohim while he was arrested. The Lungi was also having blood stain. Motilal and Koya Kutti became witness to the seizure list.

Evidence on Record:

Altogether 12 witnesses were examined on behalf of the prosecution. No defence witness was produced. Accused in an examination u/s 313 of the Criminal Procedure Code pleaded not guilty.

Kusum:

Kusum (PW 1) was married to Jagdish. She had two sons and two daughters in the wedlock. Her husband was a gastric ulcer patient and could not work smoothly. The children were studying in school. Jagdish engaged Mohim to look after and manage the property for a period of five years. He was also allowed to live in their house and also getting food from the common kitchen. Her daughter Sumati informed her that during their absence Mohim proposed her. for marriage. Same was reported to Jagdish which resulted in an altercation between Mohim and Jagdish. Mohim left the house and constructed a hut about 50 mtrs. away from their house. On the evening of the fateful day Jagdish asked Mohim to bring some turtle meat. Mohim had dinner with them and left for his hut. After some time, Mohim returned to their house and called Jagdish to kill a snake lying in his house. Jagdish left with a lamp and match box. Subsequently hearing some unknown sound, she got up from sleep and went out to search her husband when she found Jagdish lying outside bleeding from his nose. She raised an alarm. The children joined her. Mohim reached there and wanted to know the cause of the death. She accused Mohim for killing her husband. Mohim went out to call the villagers. At about 6-7 a.m. in the morning police came. The body was taken by the police personnel. Her statement was recorded by the police correctly where she put her signature. In cross-examination she stated that they were cultivating vegetable before allowing Mohim to cultivate betel leaves in a portion of their land. Mohim used to enjoy the usufructs in exchange of his labour for cultivation of the remaining land on their behalf. About 2-3 months before the date of occurrence there had been some alteration between Mohim and Jagdish over a bullock cart. She however told police that such occurance happened 5-6 months before his death. On the date of incident it was raining. Mohim used to advance money to the family.

Rupen:

Rupen Bala, was a member of the Panchayat. He knew Jagdish. He did not know whether there had been any enmity between Jagdish and Mohim. He was informed of the incident by Ganesh at about 4-30 to 4-45 a.m. on the next date of occurrence while he was going to catch the bus.

Ganesh:

Ganesh was a resident of Vivekanandapur, Little Andaman. Sumati informed him that Mohim killed Jagdish. He came to the house and found the dead body and he left the place, informed the other villagers. He informed Rupen, the then Surpanch.

Nirmal:

Nirmal was a resident of the same village. He saw the dead body lying on the verandah outside the room. He also saw police and other Basti people. He found Tarapada and Koya Kutti. He found blood on the mouth of the victim. He put his signature on a written document prepared by the police. At hospital he identified the dead body. Police took one Lungi and one Kantha from the Ghar of Mohim which was a Patta Jhupri and a seizure list was prepared where he put his signature and witness Tarapada also put his signature to the seizure list. Two Lungis were seized by the police, one from the house of Mohim and one from him at the police station having blood stain. The second one was worn by Mohim while at the police station.

Tarapada:

Tarapada was the Pradhan of Panchayat. He also corroborated what Nirmal had said.

Motilal:

Motilal, along with Koya Kutti witnessed the seizure of Gamcha taken out from the Drum kept near the well. Gamcha was having blood stain. In cross-examination Nirmal stated that he reached house of Jagdish at a time when Koya Kutti, Tarapada. Nirmal and other Basti people were there. He went to the police station at about 11/11-30 a.m. He did not sign any document at the police station. The police took Mohim along with Koya Kutti and Nirmal in a Maruti Gypsy to the spot wherefrom Gamcha was recovered.

Sumati:

Sumati, almost corroborated the evidence given by her mother.

Doctor:

P.W. 7 was the doctor who conducted the post mortem.

Police Personnel:

P.W. 9 was the police officer who entered the statement of Rupen Bala in G.D.P.W. 10, R.A. Prasad was a police officer attached to Hut Bay police station. He found swelling on the neck of the dead body and blood coming out from nose and mouth of the victim. S.S. Cherian was also a police officer attached to the Hut Bay police station who filed the charge sheet. K. Deb Das was the SHO of Rangat Police Station. He was posted at Hut Bay police station on the relevant date. He was informed by Rupen Bala about the incident. He went to the place of occurrence and conducted the enquiry. He also took photograph of the dead body before it was sent for post mortem. He collected banana leaves with blood stain. He also seized a pair of slippers of the victim lying in between his house and kitchen which was seized in presence of Motilal and Koya Kutti. Search was conducted by him at the house of Motilal at about 12.20 p.m. in presence of Nirmal and Tarapada where the Lungi was seized. At about 10.30 a.m. he recorded the confessional statement of the accused in the presence of the witnesses and then at about 12 noon he took the accused to his house where his Gamcha was seized.

Analysis of the evidence :

On analysis of evidence, it appears that the accused was entrusted to carry on cultivation work in lieu of free food and lodging. The accused was also given a part of the land for cultivation of betel leaves and the usufracts of such cultivation were allowed to be enjoyed by the accused.

The victim was a sick person and a patient of gastric ulcer. He had undergone surgery, he often used to come to Port Blair for check up. During his absence Mohim proposed Sumati for marriage. Such evidence was, however, not corroborated by any other independent witness. Nobody had seen Jagadish coming out with Mohim at 11p.m. in the night except Kusum. Kusum admitted that Mohim used to lend them money. Hence, Kusum was an interested witness. Time of occurrence did not, however, come out from the evidence. According to Kusum, Jagadish was last seen with Mohim at about 11 p.m. in the night. She did not, however, spell out as to what time she found the dead body outside the room. Sumati in her evidence stated that the dead body was lifted by Mohim and kept in the Varandah. This was also corroborated by Kusum.

Throughout the night no villager came. First Information was received at 4.30 to 4.45 p.m. by Ganesh from Rupen. Rupen also got information at that time. The village witnesses were close to the house of the victim and the accused. They, however, did not come out during the night hours. They all came early in the morning. Some of them came even after police had reached the spot. Why throughout the night the villagers were not called, is a question, answer of which did not come out from the evidence on record. Mohim was getting benefit out of the arrangement of cultivation. The victim, however, refused to get her daughter married with him.

On the issue of exhibit, the main prosecution witness Kusum deposed that it was raining. No sign of mud was found on the dead body. The blood stained banana leaves also did not have any mark of rain, at least not found from the forensic examination. The blood group of the victim also did not match with the sign of blood found on the Lungi. The accused was arrested much after the incident. Why he was wearing the Lungi having blood stained at that time is a doubt which was not satisfactorily removed by the prosecution evidence,

There is also minor discrepancy with regard to the timing of the preparation of the second seizure list.

Relevant extract of the judgment of the Court below:

"61. On scrutiny of evidence by prosecution on the principles laid down by Hon''ble Supreme Court as discussed above, I find that prosecution has succeeded in proving that victim was last seen in the company of accused. He was strangulated to death by using Gamcha. The theory of strangulation has been established by Inquest Report and Postmortem Report and blood stained Gamcha has been recovered from under a Drum kept near a well close to the house of accused Mohim Mazumdar on his statement u/s 27 of the Evidence Act. Apart from that two blood strained Lungis have been recovered and stains of blood was also been found on the outer skin of the stem of Banana plant. Further to this CFSL, report alongwith Serology report establish that Gamcha recovered wider statement of Mohim Mazumdar was containing the stains of luman blood of ''O'' Group. No explanation has come up from the defence side. Though defence is not bound to give any explanation yet such circumstances are passing added advantages and strength of reliability to prosecution version.

Contention of the appellant before us:

Mr. Krishna Rao, learned counsel appearing for the appellant contended before us that the evidence so came on record did not suggest that there was no iota of doubt that the appellant committed the murder. Admittedly, there was no eye witness to the incident. The chain of events did not conclusively suggest that the accused must be held guilty of the offence.

Contention of the prosecution :

Mr. S. K. Mandal, learned counsel appearing for the State contended that the circumstances under which the learned Sessions Judge held the accused guilty of the offence were sufficient to hold as such. Mr. Mondal further contended that since there was no eye witness the sequence of evidence was to be considered as per the guideline framed by the Apex Court in the case of Tarseem Kumar vs. Delhi Administration, reported in 1994 Supp. (3) Supreme Court Cases 367.

The cases cited by the State:

(i) Dileepkumar & Ors. vs. State of Kerala, 1985 Criminal Law Journal 114;

(ii) State of Gujarat vs. Kathi Ramku Aligbhai, 1986 Criminal Law Journal 239;

(iii) Mulakh Raj & Ors. vs. Satish Kumar & Ors., (1992)3 Supreme Court Cases 43;

(iv) State of U. P. vs. Babu Ram, 2000 Criminal Law Journal 2457;

(v) Joseph vs. State of Kerala, 2000 Criminal Law Journal 2467;

(vi) Sujya Kanta Deb & Ors. vs. The State of Tripura, 2001 Criminal Law Journal 3249;

(vii) Tapan Shil vs. State of Tripura, 2006 Criminal Law Journal 3984;

(viii) Tarseem Kumar vs. Delhi Administration, 1994 Supp(3) Supreme Court Cases 367.

Our view:

When there is no eye witness for the occurrence the chain of events is to be taken into account which would conclusively suggest that it was the accused and nobody else who could commit such murder.

The golden rule in Criminal Jurisprudence suggests that to hold the accused guilty of the offence the prosecution must prove involvement of the accused to such an extent where no second opinion could be had meaning thereby the accused could only be implicated with an unimpeachable evidence as against him. Nothing short of such evidence could send him to the gallows.

In this regard the guidelines framed by the Apex Court in the case of Tarseem Kumar (supra) relevant herein is quoted below:

"The case of the prosecution solely rests on circumstantial evidence. As the case is based solely on circumstantial evidence, the Court has to be satisfied that:

(i) The circumstances from which conclusion of guilt is to be drawn has been fully established.

(ii) All the facts so established are consistent only with the hypothesis of guilt of the appellant and they do not exclude any other hypothesis except the one sought to be proved.

(iii) The circumstances on which reliance has been placed are conclusive in nature.

(iv) The chain of the evidence in the present case is such that -there is no scope for any reasonable ground for a conclusion consistent with the innocence of the accused."

Applying the aforesaid guidelines in the instant case, we are of the opinion that although on a sum total of the evidence one might come to a conclusion that possibly the accused was involved in the incident, but those evidence, in our view, could not be treated as unimpeachable evidence as the degree of proof so prescribed by the Apex Court quoted supra would not and did not suggest that the evidence on record herein would lead to such a definite conclusion that the accused committed the murder of the victim.

We are unable to agree with the learned Sessions Judge of the Court below. We are of the opinion that benefit of doubt should go in favour of the accused.

Result:

The appeal succeeds. The order of the learned Sessions Judge holding the accused guilty of the offence and sentence given by the learned Sessions Judge is quashed and set aside. The accused be freed at once.

Dipankar Dutta, J.

I agree.