Sona Rauth and Vs. State of West Bengal - Court Judgment

Alok Kumar Basu, J.

1. Four persons in all namely Joy Prakash Prasad, Sona Rauth, Paresh Mallick and Prem Prakash Prasad faced trial under Section 302/201/34 of the IPC before the learned Additional Sessions Judge, Durgapore in connection with Sessions Trial No. 12 of 1996 corresponding to Sessions Case No. 11 of 1995.

2. After conclusion of trial, the learned Additional Sessions Judge found Sona Rauth and Paresh Mallick guilty of the offence under Section 302/34 of the IPC and accordingly both of them were convicted and sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2,000/- each in default simple imprisonment for further period of three months each. Sona Rauth and Paresh Mallick being aggrieved by and dissatisfied with, the order of conviction and sentence preferred this appeal in the year 1999 from jail.

3. One Ashok Kr. Bose submitted a written complaint with Kanksha P.S. in the district of Burdwan to the effect that on 12th January, 1992 at about 8.00 hour in the morning he found an unknown deadbody by the side of a pond called Majhi Pukur near his hotel and he detected several blackish mark on the throat of the deadbody and a piece of coir rope was also found near the deadbody.

4. After receipt of the complaint from Ashok Kr. Bose, Kanksha P.S. held inquest over the deadbody and also made arrangement for conducting post-mortem over the deadbody. Subsequently, uncle and younger brother of the deceased identified the deadbody to be that of one Monoj @ Munna and they further disclosed before the police officers that on the previous day i.e. on 11th January, 1992 one man came to the shop of deceased Monoj for hiring a video set along with cassettes and at the evening of the same day Monoj in the company of that man along with video set and cassettes left for Panagarh by a rickshaw.

5. Police on getting the identity of the deceased started a specific case under Section 302/201/34 of the IPC and in course of investigation the rickshaw puller was interrogated and through the rickshaw puller identity of appellant Sona Rauth was established and after apprehending Sona Rauth and Paresh Mallick, police also recovered the video cassettes from the house of Joy Prakash Prasad from Baroda Bhaban at Panagarh.

6. During investigation, police arranged for holding TI Parade in respect of appellant Sona Rauth and both the rickshaw puller and youngest brother of the deceased identified Sona Rauth as the person who along with deceased left the shop of the deceased on 11th January, 1992 along with video set and cassettes. During investigation, both Sona and Paresh gave confessional statements before one learned Magistrate. After completion of investigation, police submitted chargesheet against four persons in all as indicted earlier.

7. The learned Additional Sessions Judge framed charge under Section 302/201/34 of the IPC against all the four persons and they pleaded not guilty.

8. Prosecution during trial examined 14 witnesses in all which included P.W.1 Ashok Kr. Bose who lodged the First Information Report regarding the deadbody of the deceased, P.W.4 the rickshaw puller who carried the deceased and Sona Routh along with video set and cassettes on 11th January, 1992, P.W.5 Niranjan, younger brother of the deceased who was present when Sona Rauth and deceased left the shop of the deceased for Panagarh in the evening of 11th January, 1992, P.W.8 and P.W.9 who were witnesses to the seizure of video set and cassettes from the possession of Joy Prakash Prasad, P.W.9 the doctor who conducted post-mortem examination, P.W.11 the learned Magistrate who recorded confessional statements of both Sona and Paresh and who also conducted TI Parade in respect of appellant Sona Rauth, P.W.18 the first Investigating Officer who performed most part of the investigation and P.W.14 who ultimately submitted the chargesheet.

9. The learned Additional Sessions Judge having regard to the confessional statements of both Sona Rauth and Paresh Mallick and getting sufficient corroboration regarding contents of such confessional statements from medical report and other circumstantial evidence, found both Sona and Paresh guilty of the offence of murder of Monoj Munna and accordingly, he recorded an order of conviction against both of them.

10. Appearing for both the appellants who are in jail after conviction, Mr. Pradip Roy has pointed out several infirmities appearing in the impugned judgment and order. Mr. Roy has submitted that identification of Sona by P.W.4, the rickshaw puller and P.W. 5, the younger brother of the deceased was not legal and sufficient so as to sustain an order of conviction. Mr. Roy contends that P.W.4, the rickshaw puller during his cross-examination admitted that Investigating Officer in jail pointed out Sona before him for the identification and there is also contradiction in the statement of P.W.5, the younger brother and his statement given during TI Parade before the Magistrate.

11. Mr. Roy has argued that the framing of charge itself was very much defective, because, no specific time regarding commission of the murder was mentioned in the charge and the time actually mentioned on the charge is absolutely wrong.

12. Mr. Roy submits that nowhere in the statement of uncle of the deceased as P.W.3 or in the statement of younger brother of the deceased P.W.5 it was found that victim was also known as Munna, but, in the confessional statement both the appellants disclosed the name of the victim as Munna and since there is significant discrepancy regarding actual identity of the deceased, the learned Judge was not justified in recording the order of conviction.

13. Mr. Roy with reference to the statement of the doctor conducting the post-mortem examination submits that the doctor was not certain about the actual cause of death and when the coir rope alleged to have been seized from the place of occurrence was not forwarded for chemical examination, prosecution miserably failed to prove beyond reasonable doubt that the deceased actually died of strangulation using the coir rope as alleged.

14. Mr. Roy has strongly challenged the confessional statements of both Sona Rauth and Paresh Mallick which according to him was the main basis for recording a conviction order by the learned Additional Sessions Judge, Mr. Roy after discussing the statements of the learned Magistrate who recorded the confessional statement submits that the statements were not recorded in accordance with the statutory provision and as such statements were not admissible in law and no conviction order can be made on the basis of such legally defective confessional statements.

15. Mr. Roy contends that from the confessional statements of both the appellants it is available that they were assaulted by police and naturally, it cannot be stated that such confessional statements were voluntarily made and it would be highly risky to sustain an order of conviction on the basis of such defective confessional statements.

16. Mr. Roy finally submits that prosecution did not prove the probable motive behind the commission of the murder of the victim and in a case where prosecution depends mostly on circumstantial evidence, motive always assumes significant role and in this case when there is no evidence to show the probable motive behind commission of the murder, the conviction order cannot be supported.

17. Mr. Asimesh Goswami appearing for the State has supported both the order of conviction and sentence. Mr. Goswami contends that deadbody of the victim was first noticed by P.W.1, a hotel owner and who lodged the complaint with Kanksha P.S. informing the unnatural death of the victim and at that point of time the identity of the victim was neither known to the informant nor to the local P.S. P.W. 1 in his complaint disclosed that deadbody was found by the side of a pond and near the deadbody there was one coir rope and a pair of chappals.

18. The uncle of the deceased P.W.3 and the younger brother of the deceased P.W. 5 without getting any information of the victim since he had left his shop on 11th January, 1992 had been to the Kanksha P.S. wherefrom they came to know about the death of an unknown Hindu male and from the wearing apparels of the victim, they came to learn that victim was Monoj Gupta and at that point of time the younger brother disclosed that on 11th January, 1992 in the evening the victim in the company of one person went to Panagarh for the purpose of giving his video set along with some cassettes on hire.

19. Acting on the information of the younger brother of the victim, P.W.5, Investigating Officer established contact with the rickshaw puller P.W.4 who by his rickshaw brought the victim and Sona Rauth to Panagarh in the house of Joy Prakash.

20. Mr. Goswami contends that from the house of Joy Prakash the video set and the cassettes were recovered and on interrogation from Sona Rauth, complicity of another appellant Paresh Mallick transpired and thereafter both of them out of their own volition gave confessional statements and in their confessional statements they gave details as to how both of them had killed the victim by the side of the pond near the hotel.

21. Mr. Goswami contends that from the confessional statement it came on the surface that Sona Rauth with the help of Paresh Mallick strangulated the victim with the help of a coir rope and this part of the confessional statement was fully corroborated both by the post-mortem report and also by the statement of the doctor P.W. 10.

22. Mr. Goswami contends that undoubtedly confessional statements of both the appellants were the basis of the prosecution case and the learned Additional Sessions Judge mainly banked on such confessional statement to sustain the order of conviction.

23. Mr. Goswami contends that the learned Magistrate P.W. 11 has deposed that both the appellants voluntarily gave the confessional statements and it would appear from the confessional statements that in strict compliance of statutory provisions such statements were recorded.

24. Mr. Goswami submits that there is no denying of the legal position that a conviction order can be based solely on confessional statement provided such statements appear to be genuine, voluntary and recorded strictly in compliance with the statutory provisions. Mr. Goswami submits that rule of prudence requires that Court should ask for corroboration of the confessional statements and in this particular case prosecution through P.W.4 and P.W.5 successfully established that Sona Rauth was last seen with the victim and if this part of the evidence against Sona Rauth is taken together with the confessional statements of both Sona and Paresh, there is no scope to raise any question about the prosecution case. Thus, Mr. Goswami submits that there is no merit in the present appeal.

25. We have carefully perused the prosecution evidence both oral and documentary and we have also considered the points taken by Mr. Roy in support of the present appeal.

26. It is true that neither the uncle nor the younger brother of the victim mentioned the nickname of the victim as Munna during their statements before the Investigating Officer or before the Court during trial. From the confessional statements of both the appellants we came to know that victim was also known as Munna and from those statements we further get the information that victim was not unknown to both the appellants. Mr. Roy submits that since there is discrepancy between Monoj and Munna, it cannot be stated definitely that deadbody noticed by P.W. 1 and subsequently claimed to be that of Monoj Gupta was the deadbody of Munna as disclosed by the appellants in their confessional statements and in such a situation, there is a doubt as to the identity of the victim.

27. We find from the charge framed against the appellants that the Trial Court while framing charge made it abundantly clear that the deceased was known both as Monoj and Munna and the appellants from the beginning of the trial got the opportunity to know this fact and naturally, at this stage when both P.W.3 and P.W.5 identified the deadbody, there cannot be any doubt about identity of the deadbody which was of that of Monoj @ Munna.

28. We find from the written complaint as well as from the deposition of P.W.1 that initially the deadbody was unknown as because identity of the deadbody was not disclosed, but, subsequently P.W.3 and P.W.5 without getting any information of Monoj came to learn about his unfortunate demise from the P.S. and only then and there they disclosed before police that the deceased had left his shop in the evening of 11th January, 1992 in the company of a person to go to Panagarh for giving his video set on hire.

29. From the post-mortem report and also from the deposition of the doctor we find that victim was murdered within a short time after he took his meal and he was killed by strangulation and from the nature of injury noticed on his throat in all probability the coir rope might have been used and it is the specific prosecution case that the coir rope was lying beside the deadbody and it was noticed both by the informant P.W.1 and also by the I.O. who held inquest over the deadbody.

30. From the confessional statements of both the appellants we find that they also disclosed that victim was killed after he had taken his meal and thus, from the statement of the doctor as well as from the post-mortem report we get sufficient corroboration regarding the material part of the confessional statements.

31. Mr. Hoy tried to convince us that the confessional statements were not voluntary and the appellants after being assaulted by P.S. were compelled to give such statements and in the eye of law such statements had no evidentiary value.

32. From the confessional statements as well as from the statement of the learned Judicial Magistrate we find that appellants were produced from jail custody before recording their statements and as such, it cannot be accepted that immediately before giving the statements they were subjected to assault by P.S., on the contrary, from the statement of the learned Magistrate and also from the confessional statements, we have sufficient reasons to hold that both the appellants out of their own will and without pressure from anybody gave the statements.

33. P.W.4 and P.W.5 identified appellant Sona Rauth as the person who brought the victim to Panagarh along with his video set and during TI Parade also both the witnesses identified the appellant Sona Rauth.

34. Mr. Roy has submitted that identification of the appellant Sona Rauth by P.W.4 and P.W.5 cannot be accepted in law since there are discrepancies in their statements and in addition to that P.W.4 admitted in his cross-examination that the appellant was shown to him by police in jail.

35. We have examined the statement of P.W.4 along with the statement of the learned Magistrate and since there was no suggestion given to the learned Magistrate in this regard, we are not inclined to hold that TI Parade was defective and cannot be acted upon.

36. Thus, from the statement of P.W.4, P.W.5, P.W.10 and P.W.11 along with result of TI Parade, post-mortem report and confessional statements of both the appellants, we are of the view that appellant Sona Rauth was last seen in the company of the deceased Monoj @ Munna and when deceased Monoj came in the house of Joy Prakash Prasad, appellant Sona and Paresh conspired to kill Monoj and with that intention they brought Monoj by the side of the pond near the hotel of P.W.1 and both Sona and Paresh in furtherance of their common intention killed Monoj by strangulation with the help of the coir rope and this entire fact leading to killing of Monoj @ Munna was disclosed by the appellants themselves in their confessional statements and those statements were corroborated both by P.W.4 and P.W.5 and also by the doctor who conducted post-mortem examination over the deadbody of Monoj @ Munna.

37. Thus, after considering the prosecution evidence with special reference to the confessional statements of both the appellants, we are of the view that the learned Additional Sessions Judge rightly placed his reliance on the confessional statements and, that apart, the learned Judge also got sufficient corroboration from circumstantial evidence to hold conclusively that both the appellants were responsible for the homicidal death of Monoj @ Munna.

38. In view of our above discussion and having regard to the submissions of both the sides, we find no merit in the present appeal.

39. The appeal is accordingly dismissed.

40. The order of conviction and sentence passed by the leaned Additional Sessions Judge are hereby confirmed.

41. Send a copy of this judgment and order to the Superintendent of the Jail/Correctional Home where the appellants are detained for their information.

42. Send the LCR at once to the Trial Court along with copy of this judgment.

43. Xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all legal formalities.

Pranab Kumar Deb, J.

44. I agree.