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Arun Kumar Banerjee and anr. Vs. the State - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberRef. No. 5 of 1961 and Criminal Appeal No. 381 of 1961
Reported inAIR1962Cal504
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 154, 162, 297 and 374; ;Indian Penal Code (IPC), 1860 - Sections 300 and 302; ;Evidence Act, 1872 - Sections 3, 8, 21, 45 and 157
AppellantArun Kumar Banerjee and anr.
RespondentThe State
Appellant AdvocateAjit Kumar Dutta and ;Dilip Kumar Dutta, Advs.
Respondent AdvocateS.N. Banerjee and ;Anil Kumar Sen, Advs.
DispositionAppeal dismissed
Cases ReferredStephen Seneviratne v. The King
- p.b. mukharji, j. 1. the two appellants were convicted of murder under section 302 of the indian penal code and sentenced to death by the additional sessions judge, alipore, on the majority verdict of the jury of 7 to 2. there is also a reference for confirmation of death sentence under section 374 of the code of criminal procedure. both the appeal and the reference have been heard together. 2. the charge against the two appellants, arun kumar banerjee and narayan chatterjee was in the following terms: 'that you on or about the 24th day of july, 1960, at dhikirhat baharu p.s. joynagar committed murder by causing the death of sadhana banerjee and thereby committed an offence punishable under section 302 of the indian penal code and within the cognizance of the court of session. and i.....

P.B. Mukharji, J.

1. The two appellants were convicted of murder under Section 302 of the Indian Penal Code and sentenced to death by the Additional Sessions Judge, Alipore, on the majority verdict of the jury of 7 to 2. There is also a Reference for confirmation of death sentence under Section 374 of the Code of Criminal Procedure. Both the appeal and the Reference have been heard together.

2. The charge against the two appellants, Arun Kumar Banerjee and Narayan Chatterjee was in the following terms:

'That you on or about the 24th day of July, 1960, at Dhikirhat Baharu P.S. Joynagar committed murder by causing the death of Sadhana Banerjee and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the Court of Session.

And I hereby direct that you be tried by the said Court on the said charge'.

3. Sadhana Banerjee was the wife of appellant Arun Kumar Banerjee. Appellant Narayan Chatteriee was the cousin (Awn's mother's sister's son) of appellant Arun. At the time of the death of Sadhana Banerjee she was about 19 years old, her husband, appellant Arun, was about 23 years old and appellant Narayan was also about 19 years old.

4. The prosecution case may be stated briefly: Appellant Arun Kumar Banerjee married Sadhana Bose on the 13th May, 1960 after a period of courtship alliance which was supposed to begin from 1958. The marriage was art inter-caste marriage--appellant Arun was a Brahmin and Sadhana was a Kayastha. The marriage was not approved by the members of the family either of Sadhana or of Arun. No family members appear to have attended such marriage ceremony. The marriage took place at a place with the address 6-C, Rani Rashmani Garden Lane, a little north of Chingrighata Road. A gentleman by the name Bholanath Das (P.W. 7), an employee of the National Rubber . and an Assistant Secretary of the Labour Union actually did the sampradan ceremony of the marriage. Appellant Arun was employed as a worker in the factory of the Matronal Rubber . and used to be paid at a weekly rate of Rs. 15.73 nP. The marriage was attended by some of the employees of the Factory. After the marriage Arun and Sadhana are said to have taken up residence at Chingrighata at the address 8/158, Prabhuram Sarkar Lane.

5. After about a month and a half of their stay at Chingrighata Arun and Sadhana came to Seal Colony at Dum Dum, to be more accurate at 105, Dum Dum Road. At this place Sadhana's father and some other members of Sadhana's family used to reside. Arun's father Prangopal Banerjee, ordinarily a resident of Rahara-Kharda brought Arun and Sadhana to 105, Dum Dum Road. The time when this took place was the 30th June, 1960. Since then Arun and Sadhana resided in a portion of the verandah adjoining the room where an elder sister of Sadhana called Shefali then unmarried used to live. That portion: of the verandah was fenced to to make room for Arun and Sadhana. This was at 105, Dum Dum Road.

6. Within a period of about three weeks from thearrival of Arun and Sadhana at 105, Dum Dum Road, infact on the 24th July, 1960, the appellant Narayan withArun's younger brother Pota came to visit them and thethree, the two appellants and Pota left together at aboutmid-day on the 24th July, 1960. In the after-noon atabout 4.30 p.m. Sadhana also left 105, Dum Dum Road.Her father Kalish Chandra Bose observed Sadhana on theDum Dum Road and when he enquired he was told bySadhana that she was going to Sealdah as instructed byher husband Arun. An hour thereafter at about 5.30 p.m.on the same day Sadhana's friend, one Maya Kundu, alsonoticed Sadhana and the two appellants proceeding towards, the South Station, Sealdah. After about a period ofthree hours at about 8-30 p.m. at night .Madhab Paramanik(P.W. 4), a resident of Baharu, P. S. Joynagar noticed thetwo appellants with Sadhana getting down at Baharu Railway Station from the last train of that evening at thatplace.

7. To proceed with the prosecution case it is necessary to mention here that Baharu and more particularly Dhibirhat in Baharu was the usual place of residence of the appellant Narayan. Madhab who. noticed them at Baharu Railway Station also saw the two appellants and Sadhana proceeding together from the Station towards the south. There is a burning ground at Dhibirhat, Baharu towards the south of the Railway Station. At. about 9 or 9.30 p.m. of the same night on the 24th July, 1960, four persons, Abdul Latif Gazi (P.W. 40), his father SolemanGazi (P.W. 43), Mansur Ali Sk. (P.W. 39), and Mahendra Math Mistry (P.W. 42), all residents of Baharu noticed and observed their co-villager appellant Narayan and another young man coming from the Dhibirhat burning ground in quick speed and going away towards the house of the appellant Narayan. Three of these persons subsequently identified appellant Arun as Narayan's companion at the Test Identification Parade but one failed to do so. A few minutes later on two of these witnesses noticed again the two appellants coming from the direction of Narayan's house and going away by road.

8. On the 25th July, 1960, early in the morning, the people of Baharu and the locality noticed the dead body of a Hindu married woman lying at the Dhibirhat burning ground in Baharu. No one could identify the dead body. One of the villagers, Sakat Ali Sk. went to Joynagar thana and lodged an information about the dead body. The police thereupon took up the matter as an unnatural death case and commenced enquiry on the 25th July, 1960. Sub-Inspector Hrishikesh Paul took up the investigation and caused the dead body to be photographed with the aid of a local photographer. The photographs are exhibited in the case. Sub-Inspector Hrishikesh Paul held an inquest on the dead body. He noticed a swelling and Scratch marks on the neck and some scratch marks on certain other parts of the body. After the inquest he sent the dead body to Mominpur Morgue for post mortem examination. Dr. Chakravarti who held the post mortem examination found the dead body in highly decomposed condition and could not form any definite opinion as to the cause of the death. Sub-Inspector Hrishikesh Paul with the help of a local resident, Bechulal Banerjee (P.W. 23), had the photograph of the dead body published in the newspaper for establishment of the identity of the dead woman. A photo of this dead body was accordingly published in the newspaper 'Swadhinata' in its issue of 3rd August, 1960.

9. With the publication of the photograph in the newspaper on the 3rd August, 1960, the matter moved swiftly towards identification. On seeing the photograph in the 'Swadhinata' members of Sadhana's family at 105,Dum Dum Road, Seal Colony had no doubt in their mind that this was the body of Sadhana. They had made some unsuccessful searches for Sadhana in the meantime but to no effect. On the 28th July, within four days after Sadhana left for the last time Shefali went in search for her to Rahara in Kharda. She first visited her eldest sister Chameli who lived with her husband. From there she proceed ed to the house of Prangopal Banerjee, the father of the appellant Arun. There she found appellant Arun but not Sadhana. The prosecution case is that appellant Arun pleaded ignorance about the whereabouts of Sadhana and offered to go with her in search for Sadhana. Thereupon Shefali and the appellant Arun went to Konnagar, the residence of Sadhana's eldest brother Himangshu. Sadhana was not found there. Then Shefali and Arun returned next morning to 105, Dum Dum Road Seat Colony but Arun left within a few minutes of his stay. On the 1st August, 1960, two General Diary entries, in the nature of missing reports must be noticed. The first in point of time is the one by the appellant Arun at about 9.10 a.m. This is Exhibit 15-G. D. entry No. 23 dated 1st August, 1960, at Dum Dum Police. Station. In this is recorded:

'Arun Kumar Banerjee, son of Shri Pran Gopal Banerjee of 105, Dum Dum Road, Sil Colony and of Rahara, Khardah C/o. Pran Gopal Banerjee came to P. S. and reported that his wife of the following description has gone away from his home on last Thursday from Sil Colony.'

Then follows the name of Sadhana, age given is 19 years, complexion as black, built as thin and wearing as unknown. The information was sent to the Missing Squad, Lalbazar. From this it will appear that the appellant Arun lodged that information stating there that Sadhana had .gone away from his home on the 28th July, 1960, from Seal Colony at 105, Dum Dum Road. About three hours at about 12 noon the father of Sadhana, Kalish Chandra Bose, lodged the information which is marked as Exhibit 16 as General Diary entry No. 37 dated 1st August, 1960 of Dum Dum P. S. In that entry it is recorded:

'Kailash Chandra, Bose, son of late Har Mohan Bose of 105, Dum Dum Road, Sil Colony, came to P. S. and reported that his daughter of the following description has gone away somewhere else from his home on 24-7-1950 (Sandha) evening. Before her going she told that his sen-in-law asked her to go to Sealdah Station and as such she was going. She did not turn up as yet. This is also reported by the informant that she used to go out off and on with her husband for engagement outside.'

The information thereafter contained the name of Sadhana, age as 18 1/2 years, height as medium and wearing sky coloured sari, and blouse, sandal on foot with the further information that she was a student of Second year, Surendra Nath College and knew typewriting. This information was also sent to the Missing Squad, Lalbazar.

10. The next thing that occurs is the arrest of 'Arun on the 4th August, 1960. On that date Sadhana's elder brother Gouri Sankar Bose also a resident of 105, Dum Dum Road-Seal Colony noticed appellant Arun loitering on the road near the Lila Cinema not far away from Seal Colony. Gouri Sankar was responsible for Arun's arrest by the police. The written complaint of Gouri Sankar which is treated as the First Information Report in this case and marked as Exhibit 1 emphasized a number of features in this connection. It records first the deep dissatisfaction in Arun's family for this inter-caste marriage specially because Arun had an unmarried sister of marriageable age at that time. It also records that there was a quarrel between Arun and Sadhana on the 24th July, 1960, at about 9 a.m. It also records that the photograph published In the Swadhinata was the photograph of the dead body of his sister Sadhana. The allegation in the First Information Report is :

'Having noticed the movements of Shri Prangopal Banerjee, Shri Nani Bhusan Chattopadhya and Shri Narayan Chatterjee in the residence of my sister Sadhana at the said Sil Colony I have a grave suspicion that it was they who conspired with the said Arun Banerjee and intentionally took my sister Sadhana out of her house on a false plea and murdered her.'

11. The appellant Narayan, however, remained absconding for several days and the prosecution case is that in spite of searches he could not be found and ultimately after more than a fortnight, on the 20th August, 1960, appellant Narayan surrendered in Court.

12. Two pairs of sandals were found near the dead body of Sadhana at Dhibirhat burning ground at Baharu. One pair was identified to be that of Sadhana's and the other pair was identified as belonging to appellant Arun. Sadhana's sari, blouse and saya (under garments) are also exhibits in this case.

13. This in brief is the prosecution case. A large number of witnesses have been called on behalf of the prosecution. One group of witnesses belongs to the members of Sadhana's family, the second group of witnesses speaks about the place of work of Arun and his marriage the third group of witnesses speaks about the discovery of the dead body at Baharu burning ghat, the fourth group of witnesses speaks about the two appellants in the company of Sadhana at Baharu Railway Station. The last group of witnesses concerns the evidence of the investigating officer and the medical and other reports.

14. The defence of each of the appellants is innocence; each appellant denies that he is in any way connected with the crime. Appellant Arun denied residing at 105, Dum Dum Road, Seal Colony on any occasion and he also denied the photographs to be those of his wife Sadhana. Appellant Narayan denied ever having seen Sadhana at all.

15. Mr. Dutta appearing on behalf of the appellants has challenged the conviction on a number of grounds.

16. His first ground is that there were grave misdirections in the learned Judge's charge to the jury. In the first place he complains that the learned Judge should not have cited cases to formulate points of law before the jury; in the second place he complains that the learned Judge does not state in his charge what exactly were the criticisms of the prosecution witnesses that were made on behalf of the defence but only says that defence criticisms were placed before the jury; his third complaint is that the learned Judge was wrong in letting inadmissible evidence such as the G. D. entry by the appellant Arun, report of hearsay evidence in Kalish Chandra Bose's testimony as well as in Maya Kundu's evidence and wrong statement of facts such as Mahadeb having seen Sadhana for quite a number of days while in fact he saw Sadhana only once for a short while.

17. The question of misdirection to the jury in thiscase is no longer important in our view because the appealalong with the Reference compel us to go on the wholerecord and enter the evidence. See the observations ofShah, J. in Rama Shankar Singh v. State of West Bengalin Criminal Appeal No. 71 of 1961: : AIR1962SC1239 ,in the Supreme Court.

We have gone on the whole record and have examined the entire evidence in this case. It is, however, necessary for us to make certain observations on some of the points urged by Mr. Dutta. It is always prudent for a Judge charging a jury to avoid reference to reported decisions for the simple reason that each decision is so intimately and inseparably connected with the facts of the particular case which it decides. In the absence therefore of the facts of the decisions of particular cases it is always unsafe to rely on stray observations from a reported case as exemplifying any particular point of law. This view has been the accepted view in this Court for over half a century. The earliest decision expressing the same view is in Shyama Charan Chakraverti v. Emperor, 2 Cr LJ 157 (Cal), where Maclean, C. J. at pages 158-59 observed:

'Such a method of charging a jury must often almost invariably, lead to the creation of confusion in their minds. The duty of the Judge in charging a jury in a criminal case is to make up the mind as to what the law is and to tell the jury what it is, as succinctly and clearly as he can. If he turns out to be wrong a higher tribunalcan set him right. But to cite to the jury a large number of cases which the jury cannot possibly understand is calculated to confuse them and to lead to a miscarriage of justice. I have no doubt but that in the present case the learned Judge was only actuated by the most sincere desire to lay, as he thought, everything which was necessary, before the jury, and it is only fair to him to say that there are passages in his charge in which he states, with accuracy and clearness, the law applicable to the case, his mistake is that he has overladen the charge with much confusing and irrelevant matter.'

This view was confirmed in subsequent decisions such as Meher Sardar v. Emperor, 16 Cal WN 46; where a Division Bench of this Court at page 48 expressed the view:

'We notice that he has cited and commented on. a number of rulings of this Court and told the jury that it was for them to say whether any of these rulings .are exactly on all fours with the circumstances of the present case. This is, also a misdirection. No rulings or authorities are ever to be cited to the jury nor are they to be asked to differentiate or form any opinion whatever on any authorities. It is for the Judge and the Judge only to tell the jury what the law is and before he tells them what it is he may consult as many authorities as he pleases and those authorities are no doubt binding upon him. The minds of the jury should never be confused by having a number of conflicting authorities or indeed any authorities laid before them. In this case the Judge not only confused the jury by laying before them a number of conflicting authorities and leaving it to them to choose between them but as we have seen he has misdirected them as to the law of the right of private defence.'

18. In a still further recent decision which went up to the Supreme Court as indicated above a Division Bench of this Court expressed the same view and added:

'On the other hand, it has been held that there is no prohibition against a judge reading out extracts from a law report in order to clarify the explanation of law given by him (vide Emperor v. Nga Tin Gyi, 28 Cr LJ 213 : (AIR 1927 Rang 68) (FB)). What is objectionable is the citing of a number of conflicting decisions and asking the jury to differentiate between them, and to come to their own conclusion, because as already explained the Judge must make up his mind as to the law and then explain the law clearly and in a few words, because the jury are laymen who have no acquaintance with law and they must not be confused with conflicting decisions. In the present case, however, the learned Judge, though he cited a number of decisions, merely referred to them in order to give strength to his statement of law. ********** Although the course adopted by the learned Judge in citing a number of cases cannot be said to be correct, we do not think that any miscarriage of justice resulted from it, because there was no citation of conflicting rulings and there was no responsibility thrown on the jury to deduce the proper law from a number of decisions,'

19. The Supreme Court in Criminal Appeal No. 71 of 1951 : (AIR 1952 SC 1239), did not express any opinion contrary to this view of the Division Bench whose appeal went up to the Supreme Court. The reference to cases in this case by the learned Additional Sessions Judge has not, in our view, led to any miscarriage of justice and the jury was not asked to choose between conflicting views at all.

20. The prosecution case rests entirely in circumstantial evidence. There is no eye-witness to the murder. We cannot accept the broad proposition urged for the appellants that there can be no conviction on a charge of murder on circumstantial evidence. Circumstantial evidence, when legal evidence, can be the basis of a conviction. The Supreme Court in the case of Anant Chintaman Lagu v. State of Bombay 0043/1959 : 1960CriLJ682 , lays down the guiding principle that circumstantial evidence must be a combination of facts creating a network through which there is no escape for the accused because the facts taken las a whole do not admit of any inference but of his guilt. In a recent decision of the English Courts m Reg v. Onufrejczyk, (1955) 1 QB 388, Lord Goddard, C. J. of England lays down the principle that in a trial for murder, the fact of death can be proved by circumstantial evidence provided that the jury are warned that the evidence must lead to one conclusion only, and, that of the guilt of the accused. The teamed Lord Chief Justice of England lays down the further principle that notwithstanding that there is no body, or trace of a body, or any direct evidence as to the manner of death of a victim, the corpus delicti may be proved by such circumstances as render the commission of the crime certain and leave the, jury with no degree of reasonable doubt. That, in our view, presents the correct proposition and we respectfully agree with that statement of the taw.

21. The question now is to examine the circumstantial evidence in this case and to see whether it satisfies the tests stated above. Three essential objects must be borne in mind. The prosecution has. to prove first that Sadhana met a violent death; secondly, that the dead body must be identified as that of Sadhana; thirdly, that the two appellants murdered Sadhana.

22. The evidence on record leaves no room for doubt that Sadhana met a violent death and that it was a case of homicide. (After discussing the evidence His Lordship concluded:)

23. Taking an ever-all picture of the evidence on the point we have no doubt (eft that the prosecution has established that Sadhana met a violent death and that it was a case of homicide.

24. The next question is the identification of the dead body as that of Sadhana. (After discussing the evidence His Lordship concluded that it was established beyond all reasonable doubt that the photograph was the photograph of the dead body of Sadhana.)

25. The third question in the chain of circumstances is how far the evidence establishes that the two appellants murdered Sadhana.

26. Some of the outstanding features and circumstances must be mentioned at the outset. In doing so it will be desirable to keep separate the cases of the two appellants Arun and Narayan.

27. The incriminating circumstances against appellant Arun may first be analysed. The first incriminating circumstance is that his foot-wear or sandal was found m the burning ghat at Baharu near the dead body of Sadhana. It was recovered from the burning ground at Bahara. These sandals were exhibited at the trial. P.W. 2 Gouri Sankar identifies the sandals to be those of Arun; so does P.W. 8 Shefali. Arun's sandals were also identified by P. W. 5 Bharati. It is a man's sandal as distinguished from a woman's sandal. No doubt it is true that appellant Arun in his statement under Section 342, Cr. P. C. has denied that this pair of sandals belonged to him. But we see no reason why the evidence identifying his sandal, which could only be given by the members of the family where he lived, should be discarded on the ground that they were interested persons.

28. The second incriminating circumstance against Arun is the statement that he made to Bhota Nath after the photograph was published in Swadhinata. In his deposition P.W. 7 Bhota Nath Das says that on or about the 3rd or 4th of August Arun was the first to speak to him about the photograph appearing in the Swadhinata and Arun was supposed to have told him 'people are saying that the photograph in the Swadhinata is that of Sadhana, please go and see.' Bhola Nath also says that when Arun spoke to him Arun appeared to be in a disturbed state of mind and he tried to go away taking leave. Mr. Dutta realised the damaging character of this evidence against his client. He therefore contended that this statement is hit by Section 157 of the Evidence Act. In order to come within Section 157 of the Evidence Act a former statement has no doubt to satisfy certain tests. The section providesthat in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. Mr. Dutta, therefore, argues that the former statement of Arun must relate to the same fact at or about the time when the fact took place. He contends that it does not relate to the same fact nor was it made at or about the time when the fact took place OB the ground that the statement was made on the 3rd or 4th August, 1960 while the death had taken place on the 24th July, 1960. We are unable to accept Mr. Dutta's contention and we are of the opinion that Section 157 of the Indian Evidence Act has no application to this statement at all. Section 157 only relates to corroborate. It provides that former statement of a witness may be proved to corroborate the testimony as to the same fact. This is not a question of corroboration. This is a Question of conduct and relevant fact. The statement which Arun made to Bhota Nath comes under section 8 of the Evidence Act. Section 8 provides that any fact is relevant which shows or constitutes a motive or preparation for any fact m issue or relevant fact. The fact in issue or relevant fact is whether appellant Arun took any part and if so what part in the murder of Sadhana. In the second paragraph of section 8 of the Evidence Act it is expressly laid down that the conduct of any party to any proceeding m reference to such proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. This statement which appellant Arun made to Bhola Nath Das, in our view, clearly comes under second paragraph of Section 8 of the Evidence Act as showing the conduct and the relevant fact. 'Explanation 1 to section 8 of the Evidence Act further clarifies the position by stating that the word 'conduct' in the section does not include statement unless this statement accompanies and explains the acts other than statements. But this explanation is not to affect the relevancy of statement under any other section of this Act. This particular statement by appellant Arun accompanies and explains acts showing his reaction of a disturbed mind on the publication of the photograph in the newspaper and the suggestion that such photograph was that of his dead wife Sadhana. Even under section 21 of the Evidence Act an admission is relevant and may be proved against the person who makes it when such an admission consists of a statement of the existence of any state of mind relevant or in issue made at or about the time when such state of mind is in existence and is accompanied by the conduct rendering its falsehood improbable. For these reasons we are of the view that the said statement by appellant Arun to Bhola Nath Das immediately on the publication of the photograph of Sadhana in Swadhinata was rightly admitted by the learned Judge m evidence and is an incriminating circumstance against appellant Arun.

29. The third incriminating circumstance which is telling in the context of the facts of this case is the non-return of appellant Arun to his residence at No. 105, Dum Dum Road, Sil Colony, ever since the 24th July, 1960 when the murder took place. (After discussing the evidence, His Lordship proceeded:) It is, therefore, established beyond alt reasonable doubt that Arun was residing at 105, Dum Dum Road both on the day of the murder, the 24th July, 1960 as well as from some time before. The circumstances, therefore, that he did not return to his residence after the murder and not only did he not return but his failure to give any information to the persons in whose place he was residing namely, Sadhana's father, sister or brother is a significant telling circumstance against appellant Arun.

30. The fourth incriminating circumstance against appellant Arun is the General Diary entry which he made onthe 1st August, 1960 at Dum Dum police station and to which reference has just now been made. The contents of this entry has been quoted elsewhere in the judgment. It will appear from such contents that Arun was asserting that his wife had gone away 'from 'his' home' and that on 'last Thursday from Sil Colony'. The 'last Thursday' there mentioned is 28th My, 1960. Arun therefore is asserting that Sadhana was alive until the 28th, while in fact she had been killed on the night of the 24th July, 1960. If Sadhana had gone away from Arun's house on the 28th July, 1960 and had not returned then it is inexplicable how husband Arun was doing nothing on the 29th, 30th and 31st July, 1960 to find out the wife and why he did not make the missing report to the police earlier than the 1st August, 1960. An attempt to explain this is made by suggesting that he was moving with Shefali to find her out. But this attempt cannot succeed for the simple reason that Sadhana was not alive on the 28th July, 1960. This false date the 28th July, 1960 is consistent only with the circumstance of Arun's guilt and complicity in the crime and not with his innocence. With a view to get out of this clinching circumstance Mr. Dutta contends that this entry by Arun which is General Diary Entry No. 23 dated 1st August, 1960 at Dum Dum police station marked exhibit 15 in the record is inadmissible evidence on the strength of the decision of the Supreme Court in the case of 0043/1959 : 1960CriLJ682 , where at page 505 it was observed:

'A criminal trial, of course, is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material.'

If anything that observation is against the appellant. Nodoubt a criminal trial is not an enquiry into the conductof the accused for any purpose except for the purpose ofdetermining the guilt of the accused for the offence charged. But that is precisely what this conduct of appellantArun shows. It destroys the presumption of his innocence.Why should he make the statement on the 1st August, 1960that Sadhana left his home on the 28th July, 1960 whenSadhana had already died on the 24th July, 1960. Havingfailed to invoke that Supreme Court decision in his favour Mr. Dutta fell back upon an earlier Supreme Court decision in the case of Nisar Ali v. State of Uttar Pradesh : 1957CriLJ550 , where it is laid down that a first information report cannot be used as evidence against themaker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses. But that decision is of little help to Mr. Dutta because this General Diary entry in this case is not the First Information Report at all but is only a missing information. A first information report has to answer certain tests, namely, that it must relate to a cognizable offence. A report that somebody is missing is not an information relating to the commission of a cognizable offence under Section 154 of theCode of Criminal Procedure. Then also it has to be signed by the person giving it. This General Diary Entry isnot signed by appellant Arun. This argument fails tonotice that every report to the police is not a first information report. See the observation in the case of Moni Mohon Gose v. Emperor : AIR1931Cal745 . Mr. Dutta in fact could not bring to our notice orcite any case which has decided that a missing information such as is contained in this particular General Diary entry cannot be used as a circumstance proving the conduct of the accused. Nor do we consider that this exhibitis at all hit by Section 162 of the Code of Criminal Procedure. It is not a statement made to a police officer incourse of investigation nor is it signed by the personmaking it.

31. Having regard to the foregoing Incriminating circumstances against appellant Arun for which there isno possible answer, we are bound to hold that it has been established beyond reasonable doubt by these circumstances that the appellant Arun murdered Sadhana on the 24th July, 1960.

32. Looking separately at the case of appellant Narayan, his case stands on a different footing. No incriminating article to associate him with the murder such as the sandal in case of appellant Arun, is there to associate Narayan nor is there any obvious motive established in the case of Narayan to suggest why he should take part in this murder. On the question of motive as against appellant Arun it is at least established on record that there were frequent quarrels between Arun and Sadhana and that even on the day of murder that is in earlier part of the day on the 24th July, 1960 there was an incident between Arun and Sadhana. But with regard to Narayan no motive is suggested or established. We have given our most anxious consideration and great weight to these distinguishing features so far as the case against appellant Narayan is concerned.

33. But we cannot be blind to some ether circumstances which exist so far as appellant Narayan is concerned. (After discussing the evidence in the rest of this Para and Paras 34-41, His Lordship concluded that appellant Narayan took a leading part in the murder.);

42. We are, therefore, satisfied beyond reasonable doubt that the two appellants are guilty of murder of Sadhana. Evidence cannot make it dear, who gave the fatal blow or did the last act of strangulation to extinguish the life of Sadhana and, therefore, while we uphold the conviction of murder, we shall commute the punishment for both of them to life imprisonment following the principle laid down by the Supreme Court in Dalip Singh v. State of Punjab : [1954]1SCR145 , Bose, J. observed:

'This is a case in which no one has been convicted for his own act but is being held vicariously responsible for the act of another or others. In cases where the facts are more fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment. It is en equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been if the facts had been more fully known and it had been possible to determine, for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of determining who dealt the fatal blow, a judicial mind can legitimately decideto award the lesser penalty in all the cases ........

43. This disposes of the appeal and the reference before us. But before we conclude, it is necessary just to refer briefly to the two general criticisms on motive and medical evidence, made by Mr. Dutta on behalf of the appellants.

44. The main point that he makes in this respect is that there is no motive for this murder and, therefore, the conviction for murder would not be justified, We have analysed the evidence separately for Arun and Narayan. So far as Arun is concerned, we have already noticed that the evidence establishes the fact that there were quarrels between Arun and Sadhana not only before the day of murder but also on the day of murder and that the disputes always centered round financial wants and needs. We have also noticed that, so far as Narayan is concerned, no motive had been established. Whether the motive of Arun is sufficient or whether the absence of motive against Narayan is crucial is to be judged in the whole context of the facts of this case. Motive certainly is of great Importance where conclusion rests on circumstantial evidence. But where the circumstances can lead but to one conclusion, of guilt, the non-establishment of motive is not crucial. The law on this point is clear enough. The first, proposition in this respect is that question of motive isof great importance in circumstantial evidence and where there is absence of such motive, the Court should carefully examine this absence of motive as a circumstance in favour of the accused. But nevertheless, having made proper allowance for it and giving due weight to it, if the Court is satisfied that the circumstances are such that they can lead but to one conclusion which makes the accused guilty, then absence of motive cannot vitiate the conviction. In this respect, the decision of a Division Bench of this Court in Upendra Nath Ghose v. Emperor : AIR1940Cal561 , may be referred to. The correct principle which should guide the Courts in this respect has now been laid down by the Supreme Court Atley v. State of Utter Pradesh : 1955CriLJ1653 , where Sinha, J. at page 810 observed:

'For example, it was said that the evidence led on behalf of the prosecution did not clearly establish the motive for crime. It was said that it was true that the deceased was the discarded wife of the appellant who had taken a second wife but that there was no clear evidence of any serious quarrels between the husband and the wife.

That is true; and where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. If the prosecution had proved by clear evidence that the .appellant had reasons of his own for getting his first wife out of the way, that would have lent additional assurance to the circumstantial evidence pointing to his guilt. But the fact that the prosecution has failed to lead such evidence has this effect only, that the other evidence bearing on the guilt of the accused has to be very closely examined.'

45. Having, in this case, very closely examined the evidence, we are satisfied that the Question of motive cannot alter the conviction in this case. Again Lord Porter in the Privy Council decision in Walli Mohammad v. The King, 53 Cal WN 318 : (AIR 1949 PC 103), observed that although proof of motive is a material consideration, it certainly is not indispensibly essential in every case.

46. Mr. Dutta also argued that medical evidence was not conclusive in this case. But this criticism does not help the appellant in this case. We have already discussed the medical evidence. Medical evidence is hardly conclusive and decisive, because it is primarily an evidence of opinion and not of fact. That was what Lord Roche said in the Privy Council case of Stephen Seneviratne v. The King, 41 Cal WN 65 at p. 77 : (AIR 1936 PC 289 at pp. 298-299); and, finally, that is what the Supreme Court said in 0043/1959 : 1960CriLJ682 , where the following observation occurs:

'To rely upon the findings of the medical man who conducted the post-mortem and the chemical analysis as decisive of the matter is to render the other evidence entirely fruitless.'

That being so, we have to consider not merely medical evidence but also the other evidence and circumstances appearing on the point.

47. The appeal is therefore dismissed and the reference disposed of with the modification that the sentence is reduced to life imprisonment in case of both the appellants.

N.X. Sen, J.

48. I entirely agree with the reasons and conclusions stated in the judgment which is just delivered by My Lord. The arguments of Mr. Ajit Kumar Dutta, who appeared for the appellant in support of the appeal end to oppose the Reference, both on points of law and on facts has been fully and elaborately dealt with in the judgment of My Lord and with the reasons, given therein, I respectfully agree.

49. As repetition is unnecessary, I do not propose to add anything beyond the general expression of concurrence with the said reasons.

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