Pijush Giri vs The State of West Bengal

Patherya, J—This appeal is directed against the order of conviction and sentence dated 18th May, 2006 and 19th May, 2006 passed by the learned Additional District & Sessions Judge, Fast Track 1st Court, Contai, in Session Trial No. XLVIII (January) 2000, under Section 302 of the Indian Penal Code.

The prosecution''s case is as follows:

The victim girl was murdered by the accused appellant on 3rd December, 1989 and an FIR was filed by a co-villager on 4th December, 1989. An inquest was made wherein it was found that the death of the victim girl was by strangulation. Subsequent to the inquest, body was sent for post mortem and post mortem report submitted. Thereafter, charge-sheet was filed. The first charge-sheet was filed on 30th March, 2000 under Section 302/34 of the Indian Penal Code against Sambhu Giri and Kalicharan Pal. Trial in respect of the aforesaid persons was initiated and by order dated 21st March, 2005, the said persons were acquitted. No appeal has been filed by the State respondents from the said order of acquittal.

On 7th June, 2005, charge-sheet was filed against the accused appellant. Thereafter the case was committed to the Court of Sessions Judge who took cognizance of the offence and transferred the case to the learned Additional District & Sessions Judge, Fast Track, 1st Court Contai. Charges were framed and the same read out and explained to the accused appellant to which the accused appellant pleaded not guilty and sought to be tried.

As many as 14 witnesses were examined on behalf of the prosecution and the accused appellant was also examined under Section 313 of the Code of Criminal Procedure. On the basis of the oral evidence so also the documents exhibited, the Trial Court passed the order of conviction against the accused appellant.

Being aggrieved by the said order, this appeal has been filed by the accused appellant.

Counsel for the appellant submits that there are two trials. The first trial was initiated against Sambhu Giri and Kalicharan Pal, both of whom have been acquitted. The second trial against the accused appellant is based on the charge framed on 7th June, 2005. In all 14 witnesses were examined, out of which, P.W. 1, P.W. 4, P.W. 8 and P.W. 12 have been declared hostile. P.W. 3 and P.W. 10 are formal witnesses. P.W. 2 did not identify the accused. No evidence has surfaced either with regard to the extra-judicial confession by the accused appellant or his presence in the meeting. Evidence of P.W. 2 is nothing but based on suspicion. The evidence of P.W. 5 cannot be believed when compared to his evidence in the first trial. The evidence in the second trial is very elaborate. In fact, the second trial took place much later after a lapse of nearly five years and it is unbelievable that after a lapse of five years human memory will remember events more distinctly than at the time of first trial which is closer to the date of incident. Therefore, the evidence of P.W. 5 ought not to be believed. Similarly, P.W. 7, who is the FIR maker has also very elaborately described the events. His evidence is full of contradictions. Therefore, the same is also not to be relied on. P.W. 9 is a co-villager, who has categorically stated that the accused appellant disclosed the factum of murder of his wife by hired murderer to Kalicharan, who in the second trial was not examined and, in fact, the disclosure to him will not find mention even in the evidence of Kalicharan, who was PW. 9 in the first trial. Therefore, the evidence of P.W. 9 in the second trial ought not to be relied upon. P.W. 9 in the second trial was P.W. 7 in the first trial and his evidence in the first trial is not as elaborate as in the second trial. Therefore, no reliance ought to be placed on it. P.W. 13, post mortem doctor, has opined that the death was due to asphyxia by strangulation with the help of any hard long object, but no offending weapon was seized.

The charge framed is under Section 302 of the Indian Penal Code against the accused appellant, but the prosecution has not been able to prove such charge. Hiring of murderer for Rs. 3000/- has not been proved and although extra-judicial confession has been stressed on but no written document has been exhibited or proved. Atul Bera is the first person who took the accused appellant to the house of P.W. 1, the FIR maker and informed all. It is at this juncture that the accused appellant was detained. Therefore, any statement made by him cannot be termed as voluntary. This case of detention will be evident from the evidence of P.W. 3. There is no eye-witness. Although bad relation has been alleged between the accused appellant and the victim girl but none of the relatives of the victim girl has been cited or examined in support of the said case. As the prosecution has not been able to prove its case and no extra-judicial confession evident the order of conviction be set aside.

Counsel for the State submits admittedly, there is no eye-witness but the circumstantial evidence points to the guilt of the accused appellant. Two cinema tickets were seized and the accused appellant and the victim girl were last seen together. This will shift the burden on the accused appellant to prove the presence of the victim girl. Admittedly, no charge under Section 120B has been framed, but based on the theory of last seen together the order of conviction ought to be upheld.

Having considered the submissions of the parties, in all 14 witnesses were examined by the prosecution. Out of the said, some have been declared hostile, while some are formal witnesses. But the most interesting point in this case is that two trials were conducted and in the first trial, the accused therein were acquitted. At the time of the first trial, the prosecution examined the very same witnesses who were examined at the time of the second trial. Some of the witnesses could not be examined by the prosecution as they had expired in the meantime and the one who had expired in the meantime, is one Kalicharan Sahoo who was P.W. 9 at the time of the first trial. P.W. 9 in the second trial was P.W. 7 in the first trial. P.W. 9 has stated that the accused appellant disclosed certain facts to Kalicharan Sahoo. In fact, in the second trial the evidence of P.W. 5, P.W. 6, P.W. 7 and P.W. 9 is elaborate in comparison to their evidence in the first trial. The time factor cannot be lost sight of. The date of incident is December, 1989 and the first trial was conducted in 2001. The second trial was conducted in 2005 i.e., after a lapse of five years. But what emerges from the evidence of the above mentioned persons is that the evidence in 2001 of all the said witnesses was compact and relevant to the issue but in 2005 the evidence has become elaborate and detailed. Human mind at the time of the incident will remember things with clarity but after a lapse of 12 years memory will fade and after 12+5 years will fade further. Therefore, the detailed account given in the evidence of P.W. 5, P.W. 6, P.W. 7 and P.W. 9 in 2005 is difficult to accept. P.W. 9 in his evidence has stated that the accused appellant disclosed the facts to Kalicharan Sahoo, who by 2005 had expired. No written extra-judicial confession was produced before the Court and even if one is to believe that there was an extra-judicial confession orally, the said was made at a time when the accused appellant was in detention. This will appear from the evidence of P.W. 3 and P.W. 7, both of whom have said that the accused appellant was detained and that the public would have killed the accused appellant at the place of occurrence if P.W. 3 was not present thereat. The hard long object which according to the P.M. doctor may have caused the death of the victim girl has also not been seized. Therefore, the benefit of doubt leans in favour of the accused appellant and for all the said reasons, the order of conviction is set aside. Suspicion cannot give way to prove and to determine the relation between the accused appellant and the victim girl an attempt ought to have been made by the I.O., to cite and examine the relatives of the victim girl in support of the case but the said exercise was also not undertaken. Therefore, this is another reason for not upholding the order of conviction.

Accordingly, the appeal succeeds. The accused appellant be released forthwith on receipt of the operative portion of the certified copy of this judgment.

Let a copy of this judgment passed this day be communicated by the concerned department to the superintendent, Midnapore, Central Correctional Home, where the accused appellant is serving his term. The accused appellant is set at liberty provided his detention is not required in any case.

Criminal Section is directed to supply urgent photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities.

Tapash Mookherjee, J.

I agree.