IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1357 OF 2008
Chunda Murmu ….Appellant
Versus
State of West Bengal ….Respondent
J U D G M E N T
RANJAN GOGOI, J.
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 364
and 201 of IPC each, he has been sentenced to suffer rigorous imprisonment
for seven years alongwith fine. All the sentences have been directed to
run concurrently.
2. The case of the prosecution, in short, inter-alia, is that on
15.03.1990, 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 since
10.03.1990. 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, whereafter, 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 inquest
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 Kuthi ghar, 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, chargesheet was submitted against the
appellant-accused and his father Charan Murmu under Sections
302/364/201/34 of IPC. The father of accused-appellant died and charges
under the aforesaid Sections of the IPC were framed against the accused
appellant.
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 on
17.03.1990 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 313
Cr.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 the
appellant.
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 on
10.03.1990. 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 17.03.1990
despite 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 on
15th 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 15
at 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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