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Balai Chandra Biswans Vs. State of W.B [1993] INSC 429 (12 October 1993)

REDDY, K. JAYACHANDRA (J) REDDY, K. JAYACHANDRA (J) VENKATACHALA N. (J) CITATION: 1994 AIR 914 1994 SCC (1) 423 JT 1993 Supl. 148 1993 SCALE (4)214

ACT:

HEADNOTE:

The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- The appellant Balai Chandra Biswas, who is a Doctor by profession, has been found guilty of an attempt to cause disappearance of evidence by issuing a false certificate regarding the cause of death of Smt Sabita Banerjee and is accordingly convicted under Sections 201 read with 511 IPC and sentenced to undergo one year's RI by the trial court. The appeal preferred by him was dismissed by the High Court. Hence the present appeal.

2. Smt Sabita Banerjee was the wife of Pronab Banerjee who was living in a rented house at Purulia where he was posted.

On June 30, 1976 he went to Calcutta where his wife was living who was sick and suffering from chronic illness. She died on July 2, 1976. It is alleged that the accused (sic Pronab Banerjee) met PW 11, an ASI of Police attached to Control Room, Alipore, who was known to him. The accused (sic Pronab Banerjee) is alleged to have told PW 11 that his wife had expired during the previous night and requested PW 11 to come to his flat after the arrival of the Doctor, namely the accused and to help him in getting a death certificate. PW II went to the flat of Pronab Banerjee and he felt suspicious about the cause of death of Smt Sabita Banerjee. However, later the accused also came there as requested and in the presence of PW II, the accused examined her and he just wrote a certificate Ex. P-7 and in that certificate he simply mentioned thus :

+ From the Judgment and Order dated April 15, 1985 of the Calcutta High Court in Crl. Appeal No. 188 of 1979 424 "This is to certify that Smt Sabita Banerjee aged about 35 years wife of Sri Pronab Banerjee of Jadavpur Police Quarter, Calcutta- 32 expired on July 2, 1976. 1 found her dead, the cause of which I cannot say." There was a commotion in the locality and some people in the locality seemed to have taken interest in the case and the dead body was sent for postmortem and 'it was found that the death was due to strangulation. It appears that Pronab Banerjee was tried for the offence of murder and he was convicted. However, we are not concerned with that case.

3. The further case of the prosecution is that during the search of the house of Pronab Banerjee the police recovered another certificate marked as Ex. P-33 which was in the handwriting of the accused and was written on his letterhead and the same reads as follows:

"This is to certify that Smt Sabita Banerjee wife of Pronab Banerjee of Flat No. 1/2/1, Raja S.C. Mullick Road, Calcutta-32, has been suffering from Schizophrenia with nutrition deficiency. She expired at 3.15 a.m. on this date due to respiratory failure. Her age was about 37 years." It may be mentioned here that the Investigating Officer while searching the house of Pronab Banerjee came across Ex. P-7 and Ex. P-33. PW 50, a police officer who was a patient of Dr Biswas and who was familiar with his handwriting, proved both Ex. P-7 and Ex. P-33. There is little dispute that the accused granted Ex. P-7, the certificate. As there was some dispute about Ex. P-33, the same was sent to the handwriting expert along with admitted handwriting of the appellant. PW 55, an expert opined that both Ex. P-7 and Ex. P-33 bore the signatures of the appellant and the same is accepted by both the courts below.

4. Both the courts reached the conclusion that the fact that such a certificate as Ex. P-33 was issued would show that the same was given with a view to facilitate cremation of the dead body of Smt Sabita Banerjee with a view to screen her murder and cause disappearance of evidence and therefore he has committed an offence punishable under Sections 201 read with 511 IPC.

5. It may be mentioned that both the courts below held that the accused first issued Ex. P-7 and later issued Ex. P-33. A perusal of Ex. P-7 would show that the same does not disclose the cause of death and this certificate was given in the presence of PW 11, a police officer, the contents of which would show that there was a doubt about the cause of death thereby suggesting that it could be an unnatural death in which case the police had to take action and it was the duty of the husband also to inform the police. If, as found by both the courts below, Ex. P-7 was given earlier, then we are unable to see as to how the accused gave Ex. P-33 giving the cause of death. In any event there is no material whatsoever to show that Ex. P- 33, which according to the prosecution was issued to facilitate the cremation, was used. The fact remains that the dead body was sent for regular postmortem and a case of murder was also registered against Pronab Banerjee, the husband of 425 the deceased. In such an event, we fail to see as to how, even assuming that Ex. P-33 was issued by the appellant, it would amount to an attempt to commit an offence under Section 201 IPC. There is marked difference between preparation and attempt and in this case it is highly doubtful whether the appellant attempted to commit an offence under Section 201 IPC. According to the prosecution and as held by both the courts below, the appellant issued Ex. P-7 in the first instance and the contents of Ex. P-7 do not in any manner indicate that he intended to facilitate the cremation by issuing such a certificate. On the other hand, the contents of Ex. P-7 which was issued in the presence of the police officer, had in one sense paved the way for further investigation regarding the cause of death.

In such a situation merely because Ex. P-33 was seized from the house of Pronab Banerjee, the same would not fully incriminate the appellant for an offence under Sections 201 read with 511 IPC. At any rate, a reasonable doubt arises about the guilt of the appellant particularly in view of the fact that there is absolutely no material to show whether anybody had seen Ex. P-33 earlier and whether there was any attempt to put the same to use for facilitating the cremation. Accordingly the appeal is allowed. The conviction and sentence awarded to the accused are set aside. If he is on bail, his bail bonds shall stand cancelled.

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