Sanatan Ghosh @ Sona and ors - Appellants @HASH The State of West Bengal

Ashim Kumar Roy, J. - Total 7 appellants, Sanatan Ghosh @ Sona, Bapi Das, Ram Ghosh, Swapan Debnath, Choton Das, Tarak Naskar and Indrajit Ghosh @ Indu were convicted under section 302/201/34 IPC and sentenced to suffer imprisonment for life and rigorous imprisonment for two years and to pay fine with default clause, in a sessions trial held before the learned Additional Sessions Judge, 4th Court, Nadia, whereas two others, Sanjay Ghosh and Tarak Sanyal were acquitted.

In this appeal, the said order of conviction and sentence is challenged by those 7 convicts.

The First Information Report (Ext.-1), which gave rise to the above sessions trial and ended in conviction of 7 appellants was registered on a written complaint made to the Officer-in-charge, Santipur Police Station by Tumpa Biswas (PW/1), the wife of one of the victim Subrata Biswas. According to the prosecution case, in the self-same incident one Durjadhan Ghosh was also killed.

In the FIR, however, only the appellant no. 1 Sanatan Ghosh @ Sona, appellant no. 2 Bapi Das, appellant no. 3 Ram Ghosh, one Sanjay Ghosh (acquitted) and one Tarak were named as the alleged assailants. But police charge sheeted total 9 accuseds including two Tarak, namely, Tarak Naskar and Tarak Sanyal, Swapan Debnath, Choton Das and Indrajit Ghosh @ Indu. However, FIR named accused Sanjay Ghosh and charge sheeted accused Tarak Sanyal were acquitted. The accused although not named in the FIR but charge sheeted, Swapan Debnath, Choton Das and Indrajit Ghosh @ Indu were convicted in the trial.

The order of acquittal of the accuseds Sanjay Ghosh and Tarak Sanyal has not been challenged either by the State or by the de facto complainant and same has reached its finality.

It was the case of the de facto complainant (PW/1), in the FIR, on September 12, 2007 at around 5 p.m., her husband victim Subrata Biswas accompanied by another victim Durjadhan Ghosh left their house and after about 15 minutes, her husband returned home and again left in his cycle taking Rs. 3000/- with him. It was her further case on being asked she was told by her husband that he and Durjadhan was going for a picnic with Sanjay, Bapi Das, Sona Ghosh, Tarak and Ram and there will be a talk of compromise relates one matter. However, on that night her husband did not return and on the next morning different places were searched but he could not be traced out. Thereafter, at about 9.30 a.m., Gopal Sardar (PW/7), who was the caretaker of their land and garden came and reported her that two cycles, two pairs of sandals, a few bottles of wine and earthen cups stained with blood and marks of blood were found in their garden. The PW/1 along with other family members rushed to the spot and found that those two bicycles and the pair of sandals lying there were that of her husband and the other victim Durjadhan. Immediately, search began once again and the dead body of her husband and Durjadhan Ghosh were discovered by the side of mango garden of Nanda Khan behind the petrol pump near Santipur Babla Bypass. The bodies were found submerged in water with marks of strangulation. It was her further case that her husband and the victim Durjadhan were partners and engaged in dealing with landed properties and doing business in fruits taking gardens on lease. It was alleged prior to the incident she was told by her husband that Bapi Das, Sanjay and Sona Ghosh were threatening to kill him over a dispute relates to lease of a garden, when she cautioned her husband and asked him to be careful and not to move with them. According to her on the pretext of feast and settling of dispute on the fateful night her husband and Durjadhan Ghosh both were killed by Sanjay, Bapi Das, Sona Ghosh, Tarak, Ram and their associates and dead bodies were thrown in the pond to conceal the evidence of murder.

There was no eye witness to the actual crime in which victim Subrata Debnath and Durjadhan Ghosh were killed and the prosecution case rests entirely on circumstantial evidence.

The prosecution to prove its case during trial examined total 22 witnesses but defence examined none and the accuseds pleaded not guilty and claimed to have been implicated falsely.

The death of both the victims was due to asphyxia resulting from strangulation, which was ante mortem and homicidal in nature was proved by the prosecution, examining Dr. Ashit Kumar Biswas (PW/19) and his opinion remain unchallenged and not disputed during his cross-examination by the defence. The opinion of the PW/19 as to the cause of death was also not challenged before us. We have no reason to take a different stand.

To fix the guilt of the appellants in the commission of murder of both the victims Subrata Biswas and Durjodhon Ghosh, the prosecution relied on the following circumstances,

a) On the fateful night, the victim Subrata Biwas while leaving his house told his wife Tumpa Biwas (PW/1) that he along with Durjodhon Ghosh, the other victim was going to attend a feast with accused Bapi, Tarak, Sanjoy, Sona and Ram and there will also be a talk of compromise and thereafter he never returned home and both of them were found killed.

b) There was dispute between the two deceaseds and the appellants over some landed property.

c) The confessional statement of convict Sanatan Ghosh @ Sona recorded under section 164 CrPC during investigation by the Judicial Magistrate Rabi Ranjan Chakraborty (PW/18).

d) The circumstance of last seen together.

e) The evidence of Probodh Mallick (PW/11), who found on the fateful night convict Bapi Das and Indrajit Ghosh @ Indu with the victim Subrata Biswas purchasing liquor and food from a hotel.

f) The evidence of Dipak Deb (PW/12) on the fateful night at around 9/10 pm while he was going towards the house of his maternal uncle through NH-34, he found 8/9 persons were coming from opposite direction and by the focus of his torch, he recognised 3 of them namely Bapi, Indu and Ram and also noticed 2 persons were sitting in the carriers of two cycles keeping their heads down.

Heard the learned counsel appearing on behalf of the parties. Considered their rival submissions. Perused the evidence and other materials on record.

In this appeal, we are to first consider whether what was told to Tumpa Biswas (PW/1) by her husband, victim Subrata Biswas, while on the fateful night he was going out, would come within the ambit of dying declaration referred to in Section 32 (1) of the Evidence Act and if the answer is in affirmative and then only its probative value is to be gone into.

According to the PW/1 the victim Subrata Biswas on the fateful day around 5 pm went out on being called by the other victim Durjodhon Ghosh. But after about 15 minutes he came back and taking Rs.3,000/- with him again went out with his bicycle. It was the further evidence of PW/1, while was asked by her, her husband (deceased Subrata Biswas) told that he and Durjodhon (another deceased) were going for a feast with Bapi, Tarak, Sanjay, Sona and Ram and there shall be a talk of compromise with them and on the next morning both the victims were found to be killed by strangulation.

Section 32 (1) of the Evidence Act to refers to two kinds of statements viz., any statement made by a person as to cause of his death; and as to any of circumstances of the transactions which resulted in his death. Accordingly, statement of the deceased should either relate to the cause of his death or any of the circumstances of transactions which resulted in his death. It goes without saying the words "resulted in his death" do not mean "caused his death". The act of killing and the circumstances immediately attendant thereon like threats, acts, declaration and incident, which constitute or accompany and explain the fact or transactions in issue are admissible for or against either party in terms of the above provisions of the Evidence Act. The statement relevant to or furnishing an immediate motive shall also be admissible as being a part of the transactions of the death. The latter part of the said provisions is apparently of wider amplitude than the former and in such case direct nexus between circumstances and the death is not needed. However, the circumstances of transactions which resulted in death must have some proximate relation to the actual occurrence. In other words, the statement of deceased relating to the cause of death or the circumstances of transactions which resulted in his death must be sufficiently or closely connected with the actual occurrence.

The statement may be made before the cause of death has arisen, or before the deceased had any reason to anticipate being killed, the circumstances must be circumstances of the transaction. But statement made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused.

It is incumbent on the part of the party relying on such evidence that if such declaration is in writing the scribe must be produced in the court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.

While the former part "a statement made by the victim as to the cause of death" i.e. the statement relating to causing actual injuries resulted in death, if accepted and found to be credible and of intrinsic worth, a conviction could be safely based on it. However, "a statement relates to circumstances of transaction which resulted in death of the maker thereof, the approach should be completely different and such statement independently cannot be the foundation of any conviction but can always be considered to be an important link in the chain of circumstances with the other materials. We are therefore of the opinion the evidence of PW/1 as to what was told to her by her husband (deceased Subrata Biswas) before he left the house is relevant and admissible and can be used with other evidence on record. (Rattan Singh v. State, AIR 1997 SC 768) (Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622).

We do not find any substance in the contention of the counsels of the appellants, since the statement of deceased Subrata Biswas to his wife PW/1 Tumpa Biswas did not relate as to the cause of his death, therefore, is neither admissible nor relevant.

We are, however, of the opinion that the evidence of Protima Ghosh (PW/15), the mother of the deceased Durjodhon Ghosh that her deceased son on the fateful day went to attend a picnic with the appellants will not attract the latter part of the provisions of section 32 of the Evidence Act, for the simple reason that it was not her case that she was informed about the same by her deceased son. In fact she has not disclosed her source of information.

The next circumstance, relied upon by the prosecution against the appellants is the circumstance of "last seen". In this regard, the prosecution examined Probodh Mallick (PW/11) and Dipak Deb (PW/12). According to the PW/11 on the fateful night, he had been to "Sushanta hotel" for purchasing rooti and tarka. While he was waiting there, he found two persons came in a white coloured Yamaha motor cycle. They were Bapi Das (appellant no.2) and Indu (appellant no.7). At that time, he further found Subrata @ Brata was taking wine and rooti, tarka and meat from the said hotel and paid the bill. The witness further claimed, when he asked Subrata @ Brata where he was going, he informed that they were going for a feast and it was Bapi, who paid the money for purchasing those articles.

Similarly, according to the PW/12, a rickshaw puller at the fateful night when he was proceeding towards Bankapar Rasta from her maternal uncle''s home after crossing NH 34 near Kamarpara, he noticed 8/9 persons were coming from the opposite direction and by the focus of torch he recognised three persons Bapi, Indu and Ram, the appellant no. 2, 3 and 7 and also noticed two persons were sitting on the carrier of two cycles with their head downward.

Now, from the above evidence we find the name of Bapi, Indu and Ram has been focused, therefore their evidence assumed no importance as regards to the remaining appellants Sanatan Ghosh appellant no. 1, Swapan Debnath appellant no. 4, Choton Das appellant no. 5 and Tarak Naskar appellant no. 6. Admittedly, two months after the alleged incident, both the witnesses for the first time disclosed about such facts to the Investigating Officer of the case and to none before. Both PW/11 and PW/12 are the co-villagers of the victims and the appellants. The appellant Bapi, Ram and Indu all are FIR named accuseds and according to the Investigating Officer of the case immediately after he took over the charge of investigation, he held several raids for apprehension of the accused persons. We further find from the evidence of the Investigating Officer, both Bapi and Ram were arrested on September 25, 2007 and they were taken to the village for recovery of the alleged weapon of assault. The said two witnesses being the co-villagers of the appellants and the victims must have the knowledge about the murder of both Subrata and Durjadhan and the fact of arrest of the accuseds Bapi, Ram and Indu. Therefore, nondisclosure of the fact noted herein above for long two months touches their credibility and we feel that it would not at all be safe to rely them.

The only two other circumstances left for consideration is the retracted judicial confession of one of the appellants Sanatan Ghosh @ Sona, recorded under section 164 Cr PC and the circumstances of motive which we find from the evidence of PW/1, the wife of the victim Subrata Biswas and the PW/15 Pratima Ghosh, the mother of the victim Durjadhan Ghosh. It is well-settled that the confession of an accused is not an evidence in the ordinary sense as defined in section 3 of the Evidence Act and cannot be made foundation of a conviction and can only be used in support of other evidence. In the case of Kashmira Singh v. State of M.P. reported in AIR 1952 SC 159, the Hon''ble Apex Court elaborately dealt with the issue. In the said decision it was authoritatively held the proper way is, first, to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.

In this regard it would also be apposite to refer the observation of the Apex Court in the case of Aloke Nath Dutta v. State of West Bengal reported in (2008) 2 SCC (Cri) 264 as regards to the question of retracted judicial confession. The relevant observations are in paragraph 139 and 140 thereof and is quoted below;

Para 139 : The expression "the court may take into consideration such confession" is significant. It signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative evidence. In absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra-judicial confession or a judicial confession and least of all on the basis of retracted confession.

Para 140 : What is furthermore required to be considered is that if a retracted confession itself is weak evidence, the question of conviction of a co-accused on the basis thereof would not arise.

A couple of years back Apex Court in the case of Pancho v. State reported in (2011) 10 SCC 165 while confronted with the issue held as follows;

Confession binds the maker. Confession or extra-judicial confession of co-accused is extremely weak evidence. No court can start with the confession of co-accused. The court must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of said evidence, then it is permissible to turn to confession.

Similar was the view taken by the Apex Court in the case of Haricharan Kurmi v. State of Bihar reported in (1964) 6 SCR 623.

Nonetheless, considering the other crucial circumstantial evidence used by the prosecution during trial against the appellants, we have reached to a definite conclusion that those have no independent worth to draw the conclusion of guilt of the appellants and accordingly the said retracted judicial confession cannot be called in any aid still we propose to examine the same, on being vehemently insisted from the side of the State. The said retracted judicial confession of the appellant Sanatan Ghosh was marked Ext.-7 during the trial. We find in his said confession the maker thereof really from the starting point till the end made a conscious effort to put the entire blame on his co-accuseds projecting him as a mere spectator. The maker also tried to make out a case that he attempted to prevent and resist his co-accused but was coerced to remain silent. In this backdrop such judicial confession cannot be at all acted upon.

Coming to the circumstance of motive we find Pratima Ghosh (PW/15) the mother of the victim Durjadhan Ghosh was the witness who attributed the motive behind the murder of his son and another.

However, this witness attributed the motive for killing of her son. According to her, appellant Bapi Das threatened her son to stop kali puja, which was held at Ghosh Para more and Sona Ghosh threatened her son to murder him and her son had some dispute with Ram Ghosh and Indu Ghosh when they were residing at Bagchi Bagan. According to her, there was a quarrel between her said son on one side and Bapi Ghosh and Sona Ghosh and others over the purchase of a garden.

In this regard, it be noted when cross-examined by the defence, PW/15 admitted that such fact was not disclosed to the Investigating Officer of the case during investigation and therefore that evidence also loses its credibility.

We are, therefore, of the opinion that order of conviction was not at all justified and same is set aside. The appellants who are now on bail at once be discharged from their bail bonds.

The appeal is allowed.

Office is directed to send down the LCR to the court below.

Urgent Photostat certified copy of this judgment be given to the parties, if applied for, as early as possible.

Malay Marut Banerjee, J. - I agree,