Chunda Murmu Vs State
of West Bengal
[Criminal Appeal No.
1357 of 2008]
J U D G M E N T
RANJAN GOGOI, J.
1.
This
appeal, by special leave, is directed against the judgment dated 10.04.2006
passed by the High Court of Calcutta affirming the conviction of the
accused-appellant as recorded by the learned trial court under Sections 302,
364 and 201 of the Indian Penal Code (IPC). The accused-appellant, Chunda
Murmu, has been sentenced to undergo rigorous imprisonment for life under
Section 302 of IPC whereas under Sections 364and 201 of IPC each, he has been
sentenced to suffer rigorous imprisonment for seven years along with fine. All
the sentences have been directed to run concurrently.
2.
The
case of the prosecution, in short, inter-alia, is that on15.03.1990, one Anil
Mardi, P.W.7, lodged a complaint in the Habibpur Police Station to the effect
that his sister Kamla, who was married to the accused appellant for about six
years, had been missing since10.03.1990. It had been further stated, in the complaint
filed, that though the complainant had searched for his sister, her whereabouts
were not known and that the complainant suspected that she was murdered by her husband,
namely, the accused-appellant.
3.
On
the basis of the aforesaid complaint, P.W.16 P.K. Dutta, Sub-Inspector of
Police, filed the formal FIR Ex.6 on the basis of which Habibpur P.S. Case No.
17/90 was registered. In the course of investigation, the accused-appellant was
arrested on 15.3.1990 at Palashdanga, where after, he was brought to Habibpur Police
Station. According to the prosecution, the accused-appellant, while in custody,
had made a statement that he had murdered his wife and had kept the dead body concealed
in the khuti ghar of his father at village Horegram. Furthermore, according to
the prosecution, on the basis of the aforesaid statement made by the accused, the
dead body of deceased Kamla was recovered from the khuti ghar of one Charan Murmu,
the father of the accused-appellant, in the presence of seven witnesses
including the Block Development Officer, Shri Manas Kumar Mandal, P.W.15. Thereafter
in quest was held on the dead body which was sent for postmortem examination. In
the report of the post mortem, the cause of death was mentioned by the Doctor
as homicidal throttling. In the course of investigation, the I.O. PW 16, also
seized some mud stained hay from the Kuthighar, some earth etc. in the presence
of witnesses vide Seizure List Ex.5. The wearing apparels of the deceased, i.e.
mud stained green check saree, mud stained green petty coat, black blouse
stained with mud were also seized in the presence of witnesses vide Seizure
List Ex.3. Thereafter, at the conclusion of the investigation, charge sheet was
submitted against the appellant-accused and his father Charan Murmu under Sections302/364/201/34
of IPC. The father of accused-appellant died and charges under the aforesaid
Sections of the IPC were framed against the accusedappellant.
4.
The
accused-appellant pleaded not guilty to the charges framed and claimed to be tried.
In the course of the trial, 16 witnesses were examined by the prosecution and
none by the defence. However, the accused appellant was examined under Section
313 Cr.P.C. in the course of which he had stated that he had been falsely
implicated in the case. Thereafter, at the conclusion of the trial, the
accused-appellant had been convicted and sentenced as aforesaid.
5.
We
have been elaborately taken through the entire evidence on record by the
learned counsel for the appellant. A consideration of the evidence of the
prosecution witnesses examined in the case would go to show that there are no
eye witnesses to the occurrence and the prosecution has sought to bring home the
charges levelled on the basis of certain circumstances that have been unfolded
by the witnesses examined. Having considered the evidence on record, we are of
the view that in the present case the prosecution relies on the following circumstances
to establish the guilt of the accused: (1) The accused-appellant and the
deceased were married for about 6 years and that there were frequent quarrels
between the two. (2) A salish (meeting) was held to resolve the disputes
between the husband and the wife which, however, was not attended by the accused
and his deceased father. (3) The deceased had left the matrimonial home and went
to reside with PW 6 Bishu Murmu. (4) The accused had brought back his wife to
his home from where she had gone missing from 10.03.1990. (5) Despite a vigorous
search to locate the deceased, her whereabouts could not be known. (6) That the
accused was arrested on 15.03.1990 from Palashdanga and while in police custody
he had made a statement that he had killed his wife and kept the body hidden in
the kuthi ghar of his father. (7) On the basis of the aforesaid statement the dead
body was recovered from the place pointed out by the accused in the presence of
PW 15- Block Development Officer and other witnesses including PW 5 - Subhas
Soren and PW 6 Bishu Murmu, who had dug out the dead body, as directed by the
police.
6.
The
short question that needs to be answered is whether all or any of the aforesaid
circumstances have been proved and established and if so whether on the basis
of the said circumstances the conviction and sentence of the accused is tenable
in law?
7.
Learned
counsel for the appellant has vehemently contended that the prosecution version
that the accused was arrested on 15.03.1990 and that after his arrest he had
made a statement leading to recovery of the dead body cannot be believed
inasmuch as it is proved and established by the other materials on record that the
appellant was produced before the Magistrate on 17.03.1990 following his arrest
which is claimed to have been made on 15.03.1990. According to the learned
counsel, the very fact that the accused appellant was produced before the Magistrate
on17.03.1990 would go to show that the prosecution version with regard to his
arrest on 15th March and the alleged statements made by him on the said date
are extremely doubtful. It is further urged by the learned counsel that the
alleged statement made by the accused was not in the presence of police
officers but the same was made before the witnesses examined by the
prosecution. It is also contended by the learned counsel that at the time of recovery
of the dead body, PW 15- the Block Development Officer, could not identify the
accused. Learned counsel had further pointed out that in the course of the
examination of the accused under Section 313 Cr.P.C., the recovery of the dead body
and other articles as made by the prosecution had not been put to the accused
so as to enable him to explain the said circumstances appearing against him.
8.
In
reply, learned counsel appearing for the State has contended that all the
proved circumstances give rise to a complete chain of events which unerringly
point to only one direction, i.e., it is the accused and nobody else who had
committed the crime. Learned counsel has also pointed out the evidence of PW 16
the Investigating Officer wherein the reasons for non production of the accused
before the learned Magistrate at any time before 17.03.1990 have been explained.
By referring to the evidence tendered by the same witness, i.e., the
Investigating Officer (PW 16) it has been pointed out that the statement of
accused leading to recovery of the dead body was made while the accused was in
police custody and that the said statement was so made in the presence of the
police officers and as well as the other witnesses examined by the prosecution.
Insofar as the circumstances put to the accused in his examination under
Section 313Cr.P.C. is concerned, learned counsel has pointed out that the
recovery of the dead body was put to the accused in the course of such
examination and there is no lacuna in this regard, as contended on behalf of theappellant.
9.
The
fact that the accused and the deceased were married and that there were
frequent quarrels between the two is not seriously disputed. It is also not in
dispute that the deceased had left her husband and had been residing with PW 6
from whose house she was brought by the accused on10.03.1990. Insofar as the
issue with regard to the arrest of the accused on 15.03.1990 is concerned we
find that, the evidence of PW 16 - the Investigating Officer of the case does contain
an explanation for the production of the accused before the learned Magistrate on
17.03.1990despite his arrest on 15th March. If the said evidence of PW 16 is to
be reasonably read, the prosecution version of the arrest of the accused on15th
of March remains unaffected. From the evidence of Investigating Officer it is
also clear that the statement of the accused leading to the recovery of dead
body was made while he was in custody and the same was in the presence of
police officers, though, at that time some other persons were also present in
the police station. The recovery of the dead body, therefore, is a fact which
is admissible in evidence under Section 27 of the Evidence Act. The absence of
identification of the accused by PW 15at the time of recovery of the dead body,
according to us, will not affect the core of the prosecution case. Insofar as
the alleged defects in the examination of the accused under Section 313 Cr.P.C.
is concerned, having perused the record, we find that all incriminating
circumstances relevant to the case had been put to the accused and no material irregularity
causing any prejudice to the accused can be attributed to the prosecution in
this regard. All the circumstances relied upon by the prosecution, therefore,
can be held to be proved beyond reasonable doubt. The said circumstances, in
our considered view, are more than adequate to enable us to come to the
conclusion that the conviction of the accused so far as the offences under
Sections 302 and 201 IPC is concerned had been correctly made in the facts and
circumstances of the present case. We therefore affirm the aforesaid part of
the order of the High Court.
10.
Insofar
as the offence under Section 364 IPC is concerned, we have considered the
materials on record on the basis of which the aforesaid offence has been held
to be proved. According to us, the action of the accused in bringing back his
wife to the matrimonial home from the house of PW 6 Bishu Murmu cannot
attract the necessary ingredients of either the offence of kidnapping or
abduction so as to attract Section 364 IPC.
11.
Consequently
this appeal is partly allowed. The conviction and sentence under Sections 302 and
201 IPC is maintained whereas the conviction under Section 364 IPC and the
sentence imposed is set aside.
...
J.
[SWATANTER KUMAR]
J.
[RANJAN GOGOI]
New
Delhi,
May
10, 2012
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