Niranjan
Panja Vs. State of West Bengal [2010] INSC 411 (14 May 2010)
Judgment
Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 564 OF 2005 Niranjan Panja ... Appellant Versus State of West Bengal ...
Respondent
V.S.
SIRPURKAR, J.
1. The
appellant by this appeal challenges his conviction ordered by the Trial Court
and confirmed by the High Court. He was tried for offence under Section 302,
Indian Penal Code on the allegation that he had committed the murder of one
Haripada Samanta on the night between 12-13th December, 1988 at Village Ghagra,
Police Station Mahisadal at Sarberia. Charges were framed under Section 302
read with Section 201, IPC against Niranjan Panja and one Narayani 2 Parua.
Eventually, the second accused was acquitted of the offence under Section 302
read with Section 201, Indian Penal Code.
However,
accused Niranjan Panja alone came to be convicted by the Trial Court under
Section 302, Indian Penal Code and his appeal having failed, he is before us.
2. A
report came to be filed before the concerned Police Station by one Tapan Kumar
Samanta, who was the son of the victim, Haripada Samanta, that his father was
killed and his body was lying in the narrow Khal. He reported that he found
number of injuries caused by a heavy sharp cutting instrument on various parts
of his body including head and neck. It was stated that in the morning of
13.12.1988 at about 7 a.m. he got the information about his father's dead body
lying in a narrow Khal. He stated that on the previous day in the morning his
father had gone to Midnapore to look after the case of one Narayan Adhikari of
their village and in the evening on that day he himself had talked to his
father at Mahisadal. At that time, Niranjan Panja, Narayan Adhikari, Sudhir
Maity and Nirode Kanta Bera were with him. It was claimed that he came to know
that on the previous night at about 9 p.m. his father consumed liquor with
accused Niranjan Panja and Narayan Adhikari in the liquor shop of 3 one
Bholanath Pal and, thereafter, the said three persons came through the village
pathway and while Narayan Adhikari went towards his house, his father and
Niranjan Panja went back to their homes.
However,
Haripad Samanta did not return home. On the basis of this complaint,
investigation was taken up by the In-charge of the said Police Station, Shri
T.K. Tas, Sub-Inspector of Police.
3. The
police also came to know during the investigation that there was some rivalry
between the deceased and the accused Niranjan Panja as the deceased had stopped
looking after the cases of Niranjan Panja for the last 5-6 months on which
Niranjan Panja used to speak against the deceased. The prosecution case is that
it was on account of this that the accused had committed the murder. The
prosecution examined number of witnesses including the complainant son. They were
Ram Chand Bar (PW-2), Narayan Das Adhikari (PW- 3), Ranjit Samanta (PW-4),
Sunil Kumar Samanta (PW-5), Kanai Lal Das (PW-6), Paresh Das Adhikari (PW-7),
Smt. Sita Samanta (PW- 8), Rabindra Rana (PW-9), Amarendra Seth (PW-10), Dr.
Ardhendu Bikas (PW-11) the medical officer, Hare Krishna Pramanik (PW-12) and
Shri Tarun Kumar Das (PW-13). The case proceeded only on the circumstantial
evidence as there was no eye witness. The 4 defence was that of denial. The
defence pointed out that there were major discrepancies in the prosecution
evidence like the so-called weapon Siuli Katari was never produced before the
Court and the necessary witnesses were also not examined.
4. Ms.
Ranjana Narayan, the Amicus Curiae pointed out that the evidence in this case
was extremely brittle. She invited our attention to the findings of the High
Court where the High Court had culled out ten circumstances. She pointed out
that out of these ten so-called circumstances, majority of them could not be
viewed as incriminating circumstances. By reference to the evidence of the
witnesses, she pointed out that the most substantial circumstance was that the
deceased was last seen in the company of the accused. She pointed out that,
that circumstance was also not established and could not be viewed as an
incriminating circumstance inspite of the so-called discovery of the weapon of
murder which was neither produced before the Court nor was identified by any of
the witnesses. She also pointed out that the so-called blood stained Siuli
Katari was not discovered by the accused. Learned Counsel urged that
non-existing circumstances were taken into consideration, for example, the
report of the Serologist showed that the Katari was blood stained but the 5
origin of that blood could not be detected nor was that weapon ever produced
before the Court.
5. As
against this, Shri Avijit Bhattacharjee supported the judgment by saying that
there was motive inasmuch as there was enmity between the accused and the
deceased and it was the accused who was in the company of the deceased on the
last day of his life i.e. on 12.12.1988 and that there was clinching evidence
to suggest that it was the accused alone who accompanied the deceased back to
his home and, therefore, the accused was bound to explain on the basis of `last
seen together' theory.
6. We
shall consider each of the circumstance relied upon by the High Court. The High
Court has quoted the following ten circumstances:- "A. PW-1 the son of
deceased Haripada Babu came to know that his father has been murdered on the
previous night (12.12.88) and his body was lying on a small canal in Sarberia.
He informed his mother (PW-8), who in turn informed PW-4, Ranjit Samanta his
uncle and some neighbours and was also called by the village Chaukidar (PW-2)
and on reaching the spot he identified the dead body of his father and PW-3 the
Officer-in-Charge of the local Police Station. He signed on the Inquest Report
(Ext.1) and was also witness to the Seizure List (Ext.2) in respect of the
wearing apparels and penned down the complaint (Ext.3).
6 B. PW-1
learned from PW-3 Sudhir Maity (not examined) and others that the Appellant
used to speak against his father since he has stopped tadbirs of his cases.
C. On
12.12.88 morning the father of PW-1 along with PW-3 had gone to Midnapore in
connection with a case instituted by the latter and in the evening he found in
the tea stall of one Gautam Manna (not examined) near Sahid Minar at Mahisadal
bazaar that his father along with PW-3 and the appellant, Sudhir Maity (not
examined), Nirode Kanta Bera (not examined) were taking tea. There he met his
father and on his advice he returned home after marketing.
D. After
the murder of his father he (PW-1) heard from PW-3 that after they were taking
tea, PW-3, the appellant and the deceased went to the liquor shop of Bholanath
Pal (not examined) at Garkamalpur and took liquor and afterwards left that shop
leaving beside Haripada Babu and the appellant together.
E. PW-7
who was returning home in the night at about 9.30 in evening found that
Haripada Babu, father of PW-1 was standing and on his query told him that he
was waiting since the appellant had gone to the house of his uncle (PW-6).
F. The
appellant came to the house of PW-1 after he returned home witnessing the dead
body of his father lying by the side of the canal and advised him to lodge a
complaint against one Haripada Panja and Abinash Panja, which we find
corroborated from the evidence of PW-10 also.
G. The
discovery of the dead body of deceased Haripada Babu by the side of the canal
and the Ext.6 the post-mortem report, prepared by PW-11 show that death 7 was
due to shock and haemorrhage which was homicidal and ante-mortem in nature.
H. The
arrest of the appellant on the very next date of the incident followed by the
statement made by him before PW-13 which led to the recovery of the blood
stained Siuli Katari under a Seizure List (Ext.4) and a green coloured chadar
and a white coloured dhoti under a Seizure List (Ext.5) in presence of PW-5.
I. The
evidence of PW-9 the village blacksmith, who deposed that the appellant came to
his shop and got a Hansua sharpened by him and the day after he had sharpened
the said weapon he heard that a man was murdered and his body was lying on the
side of the small canal of Sarberia. In answer to the Court PW-9 the village
blacksmith said- "Siuli Katari and Hansua are same thing."
J. The
Report of the Serologist (Ext.8) shows blood was detected in the Katari.
However, since it was disintegrated the origin could not be determined."
7. The first
circumstance `A' that Tapan Kumar Samanta (PW-1) came to know about the death
of his father and that his dead body was lying near the small canal in Sarberia
can hardly be said to be an incriminating circumstance vis-`-vis the accused.
The second circumstance `B' too cannot be considered as an incriminating
circumstance as Tapan Kumar Samanta (PW-1) had never heard the appellant
speaking against his father and he claimed that he came to know about that from
Narayan Adhikari (PW-3) and Sudhir Maity 8 (who was not even examined).
Therefore, that circumstance too would go out of consideration. Insofar as the
third circumstance to the effect that the accused was seen in the company of
the deceased at Midnapore can hardly be said to be a circumstance worth the
name. It is alleged that the accused was seen taking tea with the deceased at
Mahisadal bazar in the company of Sudhir Maity and Nirode Kanta Bera and these
persons have not been examined at all.
Therefore,
even if it is presumed that the deceased was taking tea with them in the
evening, that would be of no consequence. Insofar as the fourth circumstance
`D' is concerned, again, it is based on the hearsay evidence of Tapan Kumar
Samanta (PW-1) that he heard it from Narayan Das Adhikari (PW-3) that afterwards
the appellant and the deceased went to the liquor shop of Bholanath Pal at
Garkamalpur and took liquor and afterwards left the shop leaving Haripada
Samanta and the appellant together. This circumstance, in our opinion, could be
somewhat relevant as it established the presence of the accused along with the
deceased in the evening and the fact that he was in the company of the
deceased. However, we must point out here that the said liquor shop owner
Bholanath Pal was never examined. The circumstance `E' is also of no 9
consequence as Paresh Das Adhikari (PW-7) merely saw the deceased standing
alone by the side of courtyard in front of his house at about 9.30 p.m. in the
evening. On his inquiry as to why he was standing there, the deceased is
supposed to have answered him that he was waiting for Niranjan Panja since he
had gone to the house of his uncle, Kanai Lal Das (PW-6). In fact, Kanai Lal
Das (PW-6) denied this fact that the accused had come to his place. Therefore,
even that circumstance is extremely suspicious. As regards the sixth
circumstance `F', that the accused had gone to the house of Tapan Kumar Samant
(PW-1) on 13.12.1988 and told him about his father lying by the side of canal
and advising him to lodge a complaint against one against Haripada Panja and
Abinash Panja, we will consider this circumstance later on when we examine the
evidence in detail. The circumstance at `G' is the discovery of the dead body
by the side of the canal. That cannot be viewed against the accused unless the
accused is connected with the death. The next circumstance `H' is that the
accused was arrested on the next day and his arrest led to the recovery and
blood stained Siuli Katari under a Seizure List (Ext.4) along with two other
clothes, namely, a green coloured chadar and a white coloured dhoti.
Unfortunately, for the 1 prosecution this Siuli Katari was never brought before
the Court. It is said to have been lost and has never seen the light of the day
before the Court. This is apart from the fact that the proof of discoveries
itself is doubtful. The circumstance at `I' is extremely strange. Under that
Rabindra Rana (PW-9), the village blacksmith is said to have seen the accused
sharpening a Hansua on the earlier day of the incident. Neither that Hansua nor
the said Siuli Katari had been presented before the Court. This witness also
did not even see or identify the same. The last circumstance `J' is about the
report of the Serologist showing that the Siuli Katari was having blood.
However, it is clear that the report does not say that it was human blood. On
the other hand, it was reported that the blood was disintegrated and the origin
of the same could not be determined. Therefore, even this circumstance has to
go out of consideration.
8. The
High Court has accepted the evidence on the recovery of the so-called weapon.
We fail to follow as to how the said discovery could at all be relied upon in
the absence of the weapon being produced before the Court. Again, the High
Court has also commented upon the medical evidence of Dr. Ardhendu Bikash Das,
the Medical Officer (PW-11) when he spoke about the injuries upon 1 the dead
body being possible by Siuli Katari. In the absence of Siuli Katari being seen
by the doctor in the Court, this evidence should have been discarded. It seems
that the so-called weapon of the offence was lost. The High Court had also
expressed its displeasure and directed that the circumstance under which the
said weapon was lost should be informed to the Court and also as to who was
responsible for the loss of the material weapon. We do not see any traces about
the same. Therefore, the High Court has merely relied upon the said discovery
made in the absence of Siuli Katari and recorded under Section 27, Indian
Evidence Act and the theory of `last seen together'. From this, the High Court
has proceeded to hold that the chain of circumstances was complete against the
accused and the only unmistakable inference of the same was in favour of the
culpability of the accused.
9. We
have already pointed out as to how the so-called circumstances were totally
innocuous or suspicious.
10. On
this backdrop, we will first go to the question of motive which has not been
considered by the High Court at all. The so- called motive as deposed by, PW-1,
Tapan Kumar was that the 1 accused Niranjan Panja used to speak against his
father after his father stopped looking after his litigation. It appears that
the deceased used to look after the litigation of number of persons and that
was probably his profession. We do not think that merely because the deceased
had stopped looking after the litigation of the accused, the accused had any
strong motive much less to commit murder of the deceased. Motive is an
important circumstance in the prosecution which is based on circumstantial
evidence. However, we do not see any such strong motive on the part of the
appellant. We, therefore, reject the theory that there was any motive much less
any strong motive on the part of the accused so as to commit the murder of the
deceased.
11. In
his evidence, PW-1, Tapan Kumar had suggested that on the fateful day in the
evening he saw his father at the tea stall of one Gautam Manna along with
Niranjan Panja (accused), Narayan Adhikari, Sudhir Maity and Nirode Kanta Bera
etc. Most of these witnesses, barring Narayan Adhikari, have not been examined
in this case. Again, it will be very inconsequential even if the accused was in
the company of the deceased as there were number of other persons also who were
having tea. Tapan Kumar Samanta (PW-1) 1 then said that he learnt from Narayan
Adhikari that, thereafter, all of them went to the liquor shop and took liquor.
We do not know as to how this evidence was allowed to be recorded because it is
clearly inadmissible. The claim of Tapan Kumar Samanta that accused Niranjan
Panja had come to his house, and advised him to lodge a complaint against
Haripada Panja and Abinash Panja was also extremely suspicious as there was
hardly any corroboration to this claim. This witness also identified the blood
stained dhoti and gangi baniyan.
12. The
second witness was Ram Chand Bar (PW-2) who was a gate keeper in the Gram
Panchayat. There is hardly anything in his evidence which is incriminating
except that he had seized clothes from the dead body. PW-3, Naryan Das Adhikari
spoke about the deceased, himself and the accused being there and their
consuming liquor at Bholanath Pal's liquor shop. He, however, claimed that at
about 9 p.m. he parted way and proceeded towards left and Haripada and Niranjan
proceeded towards right i.e. towards Sarberia. It means that he was also in the
company of the deceased till 9 p.m. He had not stated about their taking liquor
in his police statement which he had accepted. He admitted that he and Haripada
got down from the 1 bus at Mahisadal on return from Midnapore. He also admitted
that nobody had witnessed that he had parted company from Haripada and Niranjan
at 9 p.m. on 12.12.1988. He could not even tell as to how far Haripada and
Niranjan went together. He admitted that he parted way at a spot in Ghagra
Mouza. He further stated that the house of the deceased was barely five minutes
walk away from that spot while the accused's house was about half a mile. It
was also in the vicinity of the village itself. The evidence of this witness
would be of no consequence, particularly, because the prosecution in this case has
not fixed the time of death and there is no evidence led to that effect. Where
the prosecution depends upon the theory of `last seen together', it is always
necessary that the prosecution should establish the time of death, which the
prosecution has failed to do in this case.
The
evidence of Ranjit Samanta (PW-4) also is of no consequence.
13. Sunil
Kumar Samanta (PW-5), however, was a witness of discovery. He claimed that he
went to the house of Niranjan Panja along with the Panchayat member, Harekrishna
Pramanick, where the seizure of a chadar, a cloth and a side bag made of cotton
was made. Accused Niranjan Panja had himself brought out those clothes and then
accused led them to the stack of loose earth under 1 the Banana tree by the
side of canal and a Hansua was recovered where it was kept concealed. He had
then claimed that a lady had brought out the weapon and the villagers informed
them that she was the second daughter of Niranjan Panja. He did not even
identify that lady. In his cross-examination, it was suggested that two
articles, namely, the clothes were seized from the house of accused Niranjan
Panja. He admitted that he had gone to Thana for his personal business at about
8-9 p.m. and, there he met the Investigating Officer. The accused Niranjan
Panja was also there. Then he along with the Investigating Officer and accused
Niranjan went to the house of Niranjan. He admitted that there was no other
member of the public in the jeep. He had to admit in his cross-examination that
he had not said to the Investigating Officer that as per the showing of the
Niranjan, Hansua was recovered from beneath loose earth under the Banana tree.
Therefore, this can hardly be an evidence of discovery.
For
effecting a discovery, a statement has to be recorded on the part of the
accused showing his readiness to produce the material object and it is only the
part of the statement which is not incriminating and leads to discovery which
becomes admissible. The evidence of this witness does not inspire confidence
and it is of no use, more 1 particularly, because the so-called Hansua
allegedly produced by the accused never saw the light of the day nor had the
witness identified the same and the prosecution had also not given any
explanation whatsoever about the disappearance of this weapon.
14. PW-6,
Kanai Lal Das was declared hostile. Paresh Das Adhikari (PW-7) stated that he
saw the deceased standing under a tree just by the side of the courtyard in
front of his house and on being asked as to why he was standing there, the
deceased said that the accused Niranjan had gone to Kanai Lal Das's house and
since he was not on talking terms with Kanai Lal, he did not go along with the
accused. He claimed that, thereafter, he went for answering the nature's call
and when he returned, he did not find Haripada there.
The
evidence of this witness does not inspire any confidence. Kanai Lal Das himself
said that the accused did not go to meet him and nothing of this sort had ever
happened. This witness was declared hostile.
15. The evidence
of Smt. Sita Samanta (PW-8) is of no consequence because she did not know
anything. However, the evidence of Rabindra Rana (PW-9) is very interesting. He
had seen 1 the accused sharpening the Hansua on the previous day. This could
hardly be a circumstance to be viewed against the accused as the said Hansua
has not seen the light of the day. Dr. Ardhendu Bikas Das (PW-11) was the
doctor who had neither seen the Siuli Katari nor had fixed the time of death in
the post-mortem report. Hare Krishna Pramanik (PW-12) refused that anything was
seized by police from the house of Niranjan Panja in his presence. He was not
even declared hostile. The Investigating Officer's evidence too is of no
consequence, particularly, because the so-called theory of discovery has been
disbelieved by us. He had not even executed the spot Panchnama from where the
so called Siuli Katari was allegedly procured by the accused.
16. In
short, there is hardly any evidence in this case much less a clinching one to
believe the theory that the accused had committed the murder.
17. We
are convinced that both the judgments of the Trial Court as well as the
Appellate Court are incorrect judgments. In this case, the prosecution has
utterly failed to prove that the accused had committed the murder of the
deceased, Haripada Samanta. We, 1 therefore, allow this appeal and set aside
the conviction of the accused. The accused shall be released forthwith unless
required in any other offence.
...............................J. [V.S. Sirpurkar]
.................................J. [Dr. Mukundakam Sharma]
New Delhi;
May 14, 2010.
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