Shyamal Ghosh vs State Of West Bengal

5. Now, we may refer to the case of the prosecution which has resulted in filing of the present appeals. In the present case, the First Information Report (FIR), Exhibit 12, was lodged at P.S. Khardah on 1st October, 2003 by one Apu @ Sukalyan Mukherjee, PW15, wherein he stated that on 30th September, 2003 at around 10.00 p.m., he had seen two gunny bags containing severed head and other mutilated body parts of a human body opposite Tapan Santra’s garden near Dangadingla Electric Tower at Patulia Barabagan by the side of Barrakpore Dum Dum Highway. Since he suspected some foul play, he reported the matter and requested for investigation thereof in accordance with law. On the basis of this information, a case being case No.332/03 under Sections 302/201/34 IPC was registered against unknown miscreants and the Investigating Officer, S.I. Bholanath Dey, PW28 started the investigation and rushed to the spot where the said gunny bags had been noticed. He completed the inquest over the mutilated dead body in presence of the witnesses. On 1st October, 2003 itself, wife of the deceased Smt. Lily Bhattarcharjee, PW4, and elder brother of the deceased, Arindam Bhattacharjee, PW6, came to the police station and identified the mutilated dead body to be that of Archideb Bhattacharjee who was stated to have been missing since 29th September, 2003.

7. Since Archideb Bhattacharjee did not return to his home after visiting Chandan Dey on the night of 29th September, 2003, his wife and elder brother had gone to the house of Chandan Dey at Ghola where they came to know that at about 11.00 p.m. he had left for his own home after collecting the money from him. Having come to know of that fact, the wife and brother of the deceased went to the Police Station and lodged a missing diary report being G.D. No.1163 dated 30th September, 2003 whereafter, as already noticed, they were called to the Police Station for identifying the dead body of Archideb Bhattarcharjee on 1st October, 2003. During the course of investigation, it was also revealed that before the date of occurrence, the eight accused persons led by Uttam Das, Panchanan and Mou @ Dipak had demanded Rs.40,000/- from Archideb Bhattarcharjee towards ‘Tola Mastani Salami’ in relation to construction of six shop rooms on his own land for letting the same. Archideb had refused to succumb to this illegal demand. The accused persons had then threatened him with dire consequences. Archideb Bhattarcharjee was once called to the premises of the local East Bengal Bayam Samiti Club also where he was threatened. The accused persons had also visited the house of Archideb several times for demanding money and, lastly, they had come to the house of Archideb on 27th September, 2003 and threatened that if their demand of Rs.40,000/- was not fulfilled within one day, they would murder him.

8. On 1st October, 2003, the driver of the Maruti Van, namely, Manik Das was arrested by the Police on the basis of a telephonic information that dead body of the deceased was carried in the said Maruti Van. Manik Das then made a statement to the Police and the Maruti Van was recovered on 13th October, 2003 from the car parking place of Sushil Chakraborty at Kalitala Ghosh Para. The said Manik Das also made a statement under Section 164 of the Code of Criminal Procedure, 1973 (for short, the ‘CrPC) before the Court of competent jurisdiction. Accused Uttam Das, Dipak Das @ Mou and Manoranjan Debnath @ Behari, who were absconding were apprehended at Delhi with the help of the Police at Tilak Marg Police Station. These three accused persons were brought to Calcutta by the Investigating Officer and upon being produced before the Court on 16th October, 2003, they were remanded to police custody by the Court. During their custody and at their statement, the Avon Cycle which was driven by the deceased, was recovered from an abandoned place near Agarpara Railway Station. On 4th November, 2003, accused Bishu Saha was arrested by the police from Highland, Sodhpur and produced before the Court. He was taken into custody. Later on, even the other accused, namely, Shyamal Ghosh and Satyajit Das were arrested from Sodhpur. However, despite its best efforts, the Police was not able to arrest accused Ganesh Das and Panchanan Tarafdar @ Chotka and declared them absconders. Charge sheet against all other six accused was filed. However, at a subsequent stage, even the said two absconding accused were arrested by the Police and produced before the Court and they also were charged with the same offences.

9. Thus, all the accused were charged with the afore-stated offences and subjected to face trial before the Court of competent jurisdiction. After evidence of the prosecution was closed, the incriminating material was put to the accused and their statements under Section 313 of the Cr.P.C. were recorded. As already noticed, thereafter, the accused were convicted by the Trial Court and upon appeal before the High Court, they were acquitted of the offence under Section 379 IPC but sentenced to life imprisonment for the offence under Section 302 read with Section 34 IPC and were also sentenced for other offences, as indicated supra.

12. The present case is not a case of circumstantial evidence simpliciter. According to the case of the prosecution, there are eye- witnesses to different events that had taken place. These witnesses are reliable and trustworthy. They are neither tutored nor stalked or interested witnesses. The background of the accused persons, their conduct in absconding immediately after the occurrence and statement of the accused under Section 313 CrPC fully support the case of the prosecution. Even if some witnesses had turned hostile or there existed certain minor defects in the investigation, the accused persons cannot derive any advantage therefrom. According to the learned counsel, defective investigation normally would not prove fatal to the case of the prosecution and even delay in examination of witnesses per se would not render statement of a witness unreliable. Once the entire prosecution evidence is cumulatively examined, the ingredients of Section 34 IPC are fully satisfied.

14. In the present case, the investigative machinery was set into motion by two different facts. Firstly, Exhibit 15, which is the missing diary report lodged by the wife of the deceased Lily Bhattacharjee PW4, and brother of the deceased Arindam Bhattacharjee, PW6 on 30th September, 2003 and secondly, the FIR, Ext. 12, lodged by PW15, Apu @ Sukalyan Mukherjee on 1st October, 2003. No action appears to have been taken on the former while the Investigating Officer commenced his investigation on the basis of the latter.

9.p.m., the deceased went to the house of Chandan Dey at Ghola Gouranganagar by an Avon cycle to collect money in connection with his business. He did not return at night. Therefore, they went to Chandan’s house on the next morning and came to know that the deceased had come there in the night and after collecting money, he had returned therefrom on that very day. This resulted in lodging of the afore-noted missing diary report at the Ghola Police Station by PW6. On 1st October, 2003, PW4 and PW6 both were called to the Police Station to identify the dead body which, as noted above, had been recovered as per the statement of PW15. It may be noticed that according to PW4 the deceased was wearing four rings, HMT watch and was carrying cash and other papers with him on the night of 29th September, 2003. After identifying the body at the Police Station, it was clear that the accused persons had, after murdering the deceased, cut the body of the deceased into pieces and packed the same in gunny bags with an intention to destroy the evidence. PW4 and PW6 both identified the apparels of the deceased as well as the accused persons in Court. PW4 also stated that she had identified the accused persons even at the Police Station.

26. PW-2 Jhantu Dey, the brother-in-law of the deceased also appeared as a witness and stated that his brother-in-law had built six shop rooms on their land which was near to his house. On 15th August, 2003, Uttam, Manoranjan, Ganesh Dipak Das, Shyamal, Chotka, Bisu and Sadhu demanded Rs. 40,000/- from the deceased but the deceased refused. Then Uttam threatened that if the said money was not paid he would not allow Archideb to enjoy and use the said property. PW-2 is also a witness to the recovery of the chopper which was recovered on the statement of accused Bishu who brought out the chopper from the bush in the field and admitted that they had cut the body of the deceased with the chopper. PW-2 proved his signatures on the Seizure List Ext. 1/1 and also identified in the Court the persons who had threatened the deceased.

27. PW1 Sunil Chakraborty and PW3 Mritunjoy Chanda were also witnesses to the recovery of the Chopper and the corresponding seizure memo, Exhibit 1/3. PW1 had signed the seizure memo and admitted his signatures as Exhibit 1. The signatures of PW3 were admitted by him at Exhibit 1/2. Both these witnesses identified the accused persons present in the Court. The Maruti Van, Exhibit 13/2 was recovered in presence of PW23, PW24, PW25 and PW26. Further, the Avon cycle was recovered in presence of PW21 and PW22. PW21 stated that a cycle was seized from a place near Agarpara Railway Station under the seizure list and it was recovered at the instance of three persons who led the police to the place of recovery. He admitted his signatures as Exhibit 4/1. The cycle was exhibited as Mat. Exhibit II. The signatures on the seizure memo attached to the cycle were exhibited as Exhibit 5/1.

32. This is the evidence that completes the chain of events and establishes the case of the prosecution beyond any reasonable doubt. The facts, right from the departure of the deceased from his house to the place of Chandan Dey to recover money upto the recovery of mutilated body of the deceased, have been proved by different witnesses, including some eye- witnesses.

This is the report of post-mortem prepared by me with my handwriting. It bears my signature and seal. This report of post-mortem is marked as Ext.11 the signature is marked s Ext. 11/1.

60. We may notice at this stage that having returned a finding that prosecution has been able to prove its case beyond reasonable doubt on the strength of the oral and documentary evidence produced by the prosecution, without taking into consideration the statement of Manik Das made under Section 164 CrPC., it is not necessary for us to examine whether the statement of Manik Das under Section 164 CrPC is admissible in evidence and what its evidentiary value is. The question of law is whether the statement recorded under Section 164 CrPC can be relied upon by the prosecution in a given case or not. We leave this question open.

22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused — though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor.”

66. For the reasons afore-stated, we see no reason to interfere with the judgment of the High Court either on merits or on the quantum of sentence. Therefore, the appeals are dismissed.