Niranjan Panja vs State Of West Bengal

Niranjan Panja ... Appellant

Versus

State of West Bengal ... Respondent

JUDGMENT

V.S. SIRPURKAR, J.

1. The appellant by this appeal challenges his conviction ordered

by the Trial Court and confirmed by the High Court. He was tried for

offence under Section 302, Indian Penal Code on the allegation that

he had committed the murder of one Haripada Samanta on the night

between 12-13th December, 1988 at Village Ghagra, Police Station

Mahisadal at Sarberia. Charges were framed under Section 302 read

with Section 201, IPC against Niranjan Panja and one Narayani 2

Parua. Eventually, the second accused was acquitted of the offence

under Section 302 read with Section 201, Indian Penal Code.

However, accused Niranjan Panja alone came to be convicted by the

Trial Court under Section 302, Indian Penal Code and his appeal

having failed, he is before us.

2. A report came to be filed before the concerned Police Station

by one Tapan Kumar Samanta, who was the son of the victim,

Haripada Samanta, that his father was killed and his body was lying

in the narrow Khal. He reported that he found number of injuries

caused by a heavy sharp cutting instrument on various parts of his

body including head and neck. It was stated that in the morning of

13.12.1988 at about 7 a.m. he got the information about his father's

dead body lying in a narrow Khal. He stated that on the previous day

in the morning his father had gone to Midnapore to look after the case

of one Narayan Adhikari of their village and in the evening on that day

he himself had talked to his father at Mahisadal. At that time,

Niranjan Panja, Narayan Adhikari, Sudhir Maity and Nirode Kanta

Bera were with him. It was claimed that he came to know that on the

previous night at about 9 p.m. his father consumed liquor with

accused Niranjan Panja and Narayan Adhikari in the liquor shop of 3

one Bholanath Pal and, thereafter, the said three persons came

through the village pathway and while Narayan Adhikari went towards

his house, his father and Niranjan Panja went back to their homes.

However, Haripad Samanta did not return home. On the basis of this

complaint, investigation was taken up by the In-charge of the said

Police Station, Shri T.K. Tas, Sub-Inspector of Police.

3. The police also came to know during the investigation that there

was some rivalry between the deceased and the accused Niranjan

Panja as the deceased had stopped looking after the cases of

Niranjan Panja for the last 5-6 months on which Niranjan Panja used

to speak against the deceased. The prosecution case is that it was

on account of this that the accused had committed the murder. The

prosecution examined number of witnesses including the complainant

son. They were Ram Chand Bar (PW-2), Narayan Das Adhikari (PW-

3), Ranjit Samanta (PW-4), Sunil Kumar Samanta (PW-5), Kanai Lal

Das (PW-6), Paresh Das Adhikari (PW-7), Smt. Sita Samanta (PW-

8), Rabindra Rana (PW-9), Amarendra Seth (PW-10), Dr. Ardhendu

Bikas (PW-11) the medical officer, Hare Krishna Pramanik (PW-12)

and Shri Tarun Kumar Das (PW-13). The case proceeded only on

the circumstantial evidence as there was no eye witness. The 4

defence was that of denial. The defence pointed out that there were

major discrepancies in the prosecution evidence like the so-called

weapon Siuli Katari was never produced before the Court and the

necessary witnesses were also not examined.

4. Ms. Ranjana Narayan, the Amicus Curiae pointed out that the

evidence in this case was extremely brittle. She invited our attention

to the findings of the High Court where the High Court had culled out

ten circumstances. She pointed out that out of these ten so-called

circumstances, majority of them could not be viewed as incriminating

circumstances. By reference to the evidence of the witnesses, she

pointed out that the most substantial circumstance was that the

deceased was last seen in the company of the accused. She pointed

out that, that circumstance was also not established and could not be

viewed as an incriminating circumstance inspite of the so-called

discovery of the weapon of murder which was neither produced

before the Court nor was identified by any of the witnesses. She also

pointed out that the so-called blood stained Siuli Katari was not

discovered by the accused. Learned Counsel urged that non-existing

circumstances were taken into consideration, for example, the report

of the Serologist showed that the Katari was blood stained but the 5

origin of that blood could not be detected nor was that weapon ever

produced before the Court.

5. As against this, Shri Avijit Bhattacharjee supported the

judgment by saying that there was motive inasmuch as there was

enmity between the accused and the deceased and it was the

accused who was in the company of the deceased on the last day of

his life i.e. on 12.12.1988 and that there was clinching evidence to

suggest that it was the accused alone who accompanied the

deceased back to his home and, therefore, the accused was bound to

explain on the basis of `last seen together' theory.

6. We shall consider each of the circumstance relied upon by the

High Court. The High Court has quoted the following ten

circumstances:-

"A. PW-1 the son of deceased Haripada Babu came to know that his father has been murdered on the previous night (12.12.88) and his body was lying on a small canal in Sarberia. He informed his mother (PW-8), who in turn informed PW-4, Ranjit Samanta his uncle and some neighbours and was also called by the village Chaukidar (PW-2) and on reaching the spot he identified the dead body of his father and PW-3 the Officer-in-Charge of the local Police Station. He signed on the Inquest Report (Ext.1) and was also witness to the Seizure List (Ext.2) in respect of the wearing apparels and penned down the complaint (Ext.3).

6 B. PW-1 learned from PW-3 Sudhir Maity (not examined) and others that the Appellant used to speak against his father since he has stopped tadbirs of his cases.

C. On 12.12.88 morning the father of PW-1 along with PW-3 had gone to Midnapore in connection with a case instituted by the latter and in the evening he found in the tea stall of one Gautam Manna (not examined) near Sahid Minar at Mahisadal bazaar that his father along with PW-3 and the appellant, Sudhir Maity (not examined), Nirode Kanta Bera (not examined) were taking tea. There he met his father and on his advice he returned home after marketing.

D. After the murder of his father he (PW-1) heard from PW-3 that after they were taking tea, PW-3, the appellant and the deceased went to the liquor shop of Bholanath Pal (not examined) at Garkamalpur and took liquor and afterwards left that shop leaving beside Haripada Babu and the appellant together.

E. PW-7 who was returning home in the night at about 9.30 in evening found that Haripada Babu, father of PW-1 was standing and on his query told him that he was waiting since the appellant had gone to the house of his uncle (PW-6).

F. The appellant came to the house of PW-1 after he returned home witnessing the dead body of his father lying by the side of the canal and advised him to lodge a complaint against one Haripada Panja and Abinash Panja, which we find corroborated from the evidence of PW-10 also.

G. The discovery of the dead body of deceased Haripada Babu by the side of the canal and the Ext.6 the post-mortem report, prepared by PW-11 show that death 7

was due to shock and haemorrhage which was homicidal and ante-mortem in nature.

H. The arrest of the appellant on the very next date of the incident followed by the statement made by him before PW-13 which led to the recovery of the blood stained Siuli Katari under a Seizure List (Ext.4) and a green coloured chadar and a white coloured dhoti under a Seizure List (Ext.5) in presence of PW-5.

I. The evidence of PW-9 the village blacksmith, who deposed that the appellant came to his shop and got a Hansua sharpened by him and the day after he had sharpened the said weapon he heard that a man was murdered and his body was lying on the side of the small canal of Sarberia. In answer to the Court PW-9 the village blacksmith said-

"Siuli Katari and Hansua are same thing."

J. The Report of the Serologist (Ext.8) shows blood was detected in the Katari. However, since it was disintegrated the origin could not be determined."

7. The first circumstance `A' that Tapan Kumar Samanta (PW-1)

came to know about the death of his father and that his dead body

was lying near the small canal in Sarberia can hardly be said to be an

incriminating circumstance vis-`-vis the accused. The second

circumstance `B' too cannot be considered as an incriminating

circumstance as Tapan Kumar Samanta (PW-1) had never heard the

appellant speaking against his father and he claimed that he came to

know about that from Narayan Adhikari (PW-3) and Sudhir Maity 8

(who was not even examined). Therefore, that circumstance too

would go out of consideration. Insofar as the third circumstance to

the effect that the accused was seen in the company of the deceased

at Midnapore can hardly be said to be a circumstance worth the

name. It is alleged that the accused was seen taking tea with the

deceased at Mahisadal bazar in the company of Sudhir Maity and

Nirode Kanta Bera and these persons have not been examined at all.

Therefore, even if it is presumed that the deceased was taking tea

with them in the evening, that would be of no consequence. Insofar

as the fourth circumstance `D' is concerned, again, it is based on the

hearsay evidence of Tapan Kumar Samanta (PW-1) that he heard it

from Narayan Das Adhikari (PW-3) that afterwards the appellant and

the deceased went to the liquor shop of Bholanath Pal at

Garkamalpur and took liquor and afterwards left the shop leaving

Haripada Samanta and the appellant together. This circumstance, in

our opinion, could be somewhat relevant as it established the

presence of the accused along with the deceased in the evening and

the fact that he was in the company of the deceased. However, we

must point out here that the said liquor shop owner Bholanath Pal

was never examined. The circumstance `E' is also of no 9

consequence as Paresh Das Adhikari (PW-7) merely saw the

deceased standing alone by the side of courtyard in front of his house

at about 9.30 p.m. in the evening. On his inquiry as to why he was

standing there, the deceased is supposed to have answered him that

he was waiting for Niranjan Panja since he had gone to the house of

his uncle, Kanai Lal Das (PW-6). In fact, Kanai Lal Das (PW-6)

denied this fact that the accused had come to his place. Therefore,

even that circumstance is extremely suspicious. As regards the sixth

circumstance `F', that the accused had gone to the house of Tapan

Kumar Samant (PW-1) on 13.12.1988 and told him about his father

lying by the side of canal and advising him to lodge a complaint

against one against Haripada Panja and Abinash Panja, we will

consider this circumstance later on when we examine the evidence in

detail. The circumstance at `G' is the discovery of the dead body by

the side of the canal. That cannot be viewed against the accused

unless the accused is connected with the death. The next

circumstance `H' is that the accused was arrested on the next day

and his arrest led to the recovery and blood stained Siuli Katari under

a Seizure List (Ext.4) along with two other clothes, namely, a green

coloured chadar and a white coloured dhoti. Unfortunately, for the 1

prosecution this Siuli Katari was never brought before the Court. It is

said to have been lost and has never seen the light of the day before

the Court. This is apart from the fact that the proof of discoveries

itself is doubtful. The circumstance at `I' is extremely strange. Under

that Rabindra Rana (PW-9), the village blacksmith is said to have

seen the accused sharpening a Hansua on the earlier day of the

incident. Neither that Hansua nor the said Siuli Katari had been

presented before the Court. This witness also did not even see or

identify the same. The last circumstance `J' is about the report of the

Serologist showing that the Siuli Katari was having blood. However,

it is clear that the report does not say that it was human blood. On

the other hand, it was reported that the blood was disintegrated and

the origin of the same could not be determined. Therefore, even this

circumstance has to go out of consideration.

8. The High Court has accepted the evidence on the recovery of

the so-called weapon. We fail to follow as to how the said discovery

could at all be relied upon in the absence of the weapon being

produced before the Court. Again, the High Court has also

commented upon the medical evidence of Dr. Ardhendu Bikash Das,

the Medical Officer (PW-11) when he spoke about the injuries upon 1

the dead body being possible by Siuli Katari. In the absence of Siuli

Katari being seen by the doctor in the Court, this evidence should

have been discarded. It seems that the so-called weapon of the

offence was lost. The High Court had also expressed its displeasure

and directed that the circumstance under which the said weapon was

lost should be informed to the Court and also as to who was

responsible for the loss of the material weapon. We do not see any

traces about the same. Therefore, the High Court has merely relied

upon the said discovery made in the absence of Siuli Katari and

recorded under Section 27, Indian Evidence Act and the theory of

`last seen together'. From this, the High Court has proceeded to hold

that the chain of circumstances was complete against the accused

and the only unmistakable inference of the same was in favour of the

culpability of the accused.

9. We have already pointed out as to how the so-called

circumstances were totally innocuous or suspicious.

10. On this backdrop, we will first go to the question of motive

which has not been considered by the High Court at all. The so-

called motive as deposed by, PW-1, Tapan Kumar was that the 1

accused Niranjan Panja used to speak against his father after his

father stopped looking after his litigation. It appears that the

deceased used to look after the litigation of number of persons and

that was probably his profession. We do not think that merely

because the deceased had stopped looking after the litigation of the

accused, the accused had any strong motive much less to commit

murder of the deceased. Motive is an important circumstance in the

prosecution which is based on circumstantial evidence. However, we

do not see any such strong motive on the part of the appellant. We,

therefore, reject the theory that there was any motive much less any

strong motive on the part of the accused so as to commit the murder

of the deceased.

11. In his evidence, PW-1, Tapan Kumar had suggested that on the

fateful day in the evening he saw his father at the tea stall of one

Gautam Manna along with Niranjan Panja (accused), Narayan

Adhikari, Sudhir Maity and Nirode Kanta Bera etc. Most of these

witnesses, barring Narayan Adhikari, have not been examined in this

case. Again, it will be very inconsequential even if the accused was

in the company of the deceased as there were number of other

persons also who were having tea. Tapan Kumar Samanta (PW-1) 1

then said that he learnt from Narayan Adhikari that, thereafter, all of

them went to the liquor shop and took liquor. We do not know as to

how this evidence was allowed to be recorded because it is clearly

inadmissible. The claim of Tapan Kumar Samanta that accused

Niranjan Panja had come to his house, and advised him to lodge a

complaint against Haripada Panja and Abinash Panja was also

extremely suspicious as there was hardly any corroboration to this

claim. This witness also identified the blood stained dhoti and gangi

baniyan.

12. The second witness was Ram Chand Bar (PW-2) who was a

gate keeper in the Gram Panchayat. There is hardly anything in his

evidence which is incriminating except that he had seized clothes

from the dead body. PW-3, Naryan Das Adhikari spoke about the

deceased, himself and the accused being there and their consuming

liquor at Bholanath Pal's liquor shop. He, however, claimed that at

about 9 p.m. he parted way and proceeded towards left and Haripada

and Niranjan proceeded towards right i.e. towards Sarberia. It means

that he was also in the company of the deceased till 9 p.m. He had

not stated about their taking liquor in his police statement which he

had accepted. He admitted that he and Haripada got down from the 1

bus at Mahisadal on return from Midnapore. He also admitted that

nobody had witnessed that he had parted company from Haripada

and Niranjan at 9 p.m. on 12.12.1988. He could not even tell as to

how far Haripada and Niranjan went together. He admitted that he

parted way at a spot in Ghagra Mouza. He further stated that the

house of the deceased was barely five minutes walk away from that

spot while the accused's house was about half a mile. It was also in

the vicinity of the village itself. The evidence of this witness would be

of no consequence, particularly, because the prosecution in this case

has not fixed the time of death and there is no evidence led to that

effect. Where the prosecution depends upon the theory of `last seen

together', it is always necessary that the prosecution should establish

the time of death, which the prosecution has failed to do in this case.

The evidence of Ranjit Samanta (PW-4) also is of no consequence.

13. Sunil Kumar Samanta (PW-5), however, was a witness of

discovery. He claimed that he went to the house of Niranjan Panja

along with the Panchayat member, Harekrishna Pramanick, where

the seizure of a chadar, a cloth and a side bag made of cotton was

made. Accused Niranjan Panja had himself brought out those

clothes and then accused led them to the stack of loose earth under 1

the Banana tree by the side of canal and a Hansua was recovered

where it was kept concealed. He had then claimed that a lady had

brought out the weapon and the villagers informed them that she was

the second daughter of Niranjan Panja. He did not even identify that

lady. In his cross-examination, it was suggested that two articles,

namely, the clothes were seized from the house of accused Niranjan

Panja. He admitted that he had gone to Thana for his personal

business at about 8-9 p.m. and, there he met the Investigating

Officer. The accused Niranjan Panja was also there. Then he along

with the Investigating Officer and accused Niranjan went to the house

of Niranjan. He admitted that there was no other member of the

public in the jeep. He had to admit in his cross-examination that he

had not said to the Investigating Officer that as per the showing of the

Niranjan, Hansua was recovered from beneath loose earth under the

Banana tree. Therefore, this can hardly be an evidence of discovery.

For effecting a discovery, a statement has to be recorded on the part

of the accused showing his readiness to produce the material object

and it is only the part of the statement which is not incriminating and

leads to discovery which becomes admissible. The evidence of this

witness does not inspire confidence and it is of no use, more 1

particularly, because the so-called Hansua allegedly produced by the

accused never saw the light of the day nor had the witness identified

the same and the prosecution had also not given any explanation

whatsoever about the disappearance of this weapon.

14. PW-6, Kanai Lal Das was declared hostile. Paresh Das

Adhikari (PW-7) stated that he saw the deceased standing under a

tree just by the side of the courtyard in front of his house and on

being asked as to why he was standing there, the deceased said that

the accused Niranjan had gone to Kanai Lal Das's house and since

he was not on talking terms with Kanai Lal, he did not go along with

the accused. He claimed that, thereafter, he went for answering the

nature's call and when he returned, he did not find Haripada there.

The evidence of this witness does not inspire any confidence. Kanai

Lal Das himself said that the accused did not go to meet him and

nothing of this sort had ever happened. This witness was declared

hostile.

15. The evidence of Smt. Sita Samanta (PW-8) is of no

consequence because she did not know anything. However, the

evidence of Rabindra Rana (PW-9) is very interesting. He had seen 1

the accused sharpening the Hansua on the previous day. This could

hardly be a circumstance to be viewed against the accused as the

said Hansua has not seen the light of the day. Dr. Ardhendu Bikas

Das (PW-11) was the doctor who had neither seen the Siuli Katari nor

had fixed the time of death in the post-mortem report. Hare Krishna

Pramanik (PW-12) refused that anything was seized by police from

the house of Niranjan Panja in his presence. He was not even

declared hostile. The Investigating Officer's evidence too is of no

consequence, particularly, because the so-called theory of discovery

has been disbelieved by us. He had not even executed the spot

Panchnama from where the so called Siuli Katari was allegedly

procured by the accused.

16. In short, there is hardly any evidence in this case much less a

clinching one to believe the theory that the accused had committed

the murder.

17. We are convinced that both the judgments of the Trial Court as

well as the Appellate Court are incorrect judgments. In this case, the

prosecution has utterly failed to prove that the accused had

committed the murder of the deceased, Haripada Samanta. We, 1

therefore, allow this appeal and set aside the conviction of the

accused. The accused shall be released forthwith unless required in

any other offence.

...............................J. [V.S. Sirpurkar]

.................................J. [Dr. Mukundakam Sharma]

New Delhi;

May 14, 2010.