Aloke Nath Dutta & Ors vs State Of West Bengal

Aloke Nath absented himself from duty from 7.00 p.m. on 22.01.1994 to 28.01.1994, as disclosed by his colleagues Sahadev Mondal (PW-33), Ananta KumarThanedar (PW-34), and Biman Ghosh Dastidar (PW-35).

Possession of Pooja Room and a room occupied by Biswanath was delivered to Nandlal Singh on 23.01.1994. Nandlal Singh noticed a newly constructed 'bedi' in the said room. He asked him the reasons therefor, and was informed that it was constructed for cooking purpose. He asked him to remove the same; whereto Aloke Nath promised to do so after registration of the sale deed. Nandlal Singh, as advised by his advocate, Bikash Pal, issued an advertisement in the Newspaper 'Ananda Bazar Patrika', a Bengali Daily, on 31.01.1994. Bikash Pal suspected that Aloke Nath might have other brothers and sisters and therefore advised issuance of such advertisement. Amar Nath, Samar Nath and Anuradha Das (PWs. 4, 3 and 5 respectively) informed Bikash Pal that they were also co-owners of the said property and were not agreeable to sell the house.

In view of the aforementioned developments, Samar Nath (PW-3), Amar Nath (PW-4) and Avijit Dutta (PW-6) allegedly visited the Premises No. 2C, Beadon Street on 06.03.1994. They enquired about whereabouts of Biswanath and were informed that he had started living at Barasat. They visited the house the address whereof was furnished by Aloke Nath. They found out the same to be bogus as no person called Biswanath had been residing there. They came back to Premises No.2C, Beadon Street. They insisted upon Aloke Nath to disclose the whereabouts of Biswanath, whereupon Aloke Nath allegedly broke down and made an extra judicial confession before them, as also Nandlal Singh and some tenants, that he had throttled Biswanath to death. While commotion was on, the officer in charge of the police station was informed by some neighbour of Aloke Nath. While police was coming to the said premises, they met Samar Nath on the way, who was going to inform them about the incident. The police officer came to the said house. Aloke Nath was arrested in the afternoon of 06.03.1994. He was interrogated in the Police Station and was brought back by the police personnel. The other accused were arrested on the next day.

Aloke Nath is said to have made a confession at the police station that he had concealed the dead body in a platform (a kind of cistern made of sand and bricks). He pointed towards the said platform, whereupon two labourers and one mason were sent for; forensic experts were summoned. The said cistern was broken and dismantled. Foul smell came out therefrom and a human skeleton lying beneath the same was seen. The skeleton was said to have been identified to be that of Biswanath by Aloke Nath himself, which was seized and sent to morgue. Cause of the death, according to the autopsy report was asphyxia. Aloke Nath also made a confession leading to recovery of certain articles belonging to the deceased Biswanath from the rented premises which he had been occupying, as also a confession leading to recovery of some of the household articles.

Investigation was conducted by Sub Inspector Sukhendu Barick attached to Burtolla Police Station. However the case was transferred to the Detective Department of Kolkata Police and from 08.03.1994, Sub Inspector Atanu Banerjee (PW-48) took over the investigation of the case.

After having filed the charge-sheet, cognizance of the offence was taken and the case was committed to the Court of Sessions.

(viii) In his examination under Section 313 of the Code of Criminal Procedure he alleged torture at the hands of PW-44, but PW-44 having not been cross-examined on the said point, the judicial confession was admissible in evidence not only against the maker thereof, but also against the co-accused in terms of Section 30 of the Indian Evidence Act.

16. After delivery of the possession of the first floor of the premises to PW-15, Aloke Nath shifted his residence to the tenanted premises. On the basis of his confessional statement (Ex. 108) and on being identified and pointed out by him, the Investigating Officer on 10.03.1994 recovered and seized the personal belongings of Biswanath. On some articles the name of Biswanath appeared.

In the aforementioned backdrop, the court should give the benefit of doubt to the accused instead of the prosecution. The learned Trial Judge, in our opinion, should not have closed the case. He should have invoked his jurisdiction under Section 311 of the Code of Criminal Procedure in the interest of justice and instead of blaming the defence for non-examination of the Superintendent of Presidency Jail, the court itself should have called upon authorities to produce the document. The presumption raised by the court in this behalf is wholly misconceived.

APPRECIATION OF EVIDENCE :

We, therefore, express our inability, with respect, to agree with this part of the judgment of the learned judge.

DEATH SENTENCE :

Although we are not concerned with such a case, the view taken therein is doubtful.

Hence the sentence was commuted to one for life.

We in the facts and circumstances of this case are also of the opinion that the prosecution having been failed to prove the case of conspiracy against Appellant herein, the case cannot be said to be one constituting rarest of rare cases.

CONCLUSION :