ASRAF SK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court upholding the conviction recorded by learned Additional Sessions Judge, 12th Court, 24 Parganas (South) in Sessions Trial No. 1(6) of 1988. Both the appellants were convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC') and sentenced to imprisonment of life.

(2.) The prosecution case, in brief, is that Jayanta Kr. Mukherjee (PW-12) was posted as Officer-in-Charge of Bishnupur Police Station at the relevant point of time. On 18.8.83 at about 0.02 hours when this witness came to Jhanpur Keyatala Hat, he received written complaints of Anita Pal (PW-1) alleging, inter alia, that her niece Kumari Archana Pal, aged about 16 years was kidnapped by the appellants. Kumari Archana Pal was the daughter of her sister Pasani Pal (PW-2). Her niece could not be traced out since she was kidnapped by appellant No. 1 Asraf Sk. and further that as appellant No. 1 Asraf Sk. was absconding and on the date of occurrence the said appellant was seen loitering openly around their house. Her elder sister Pasani Pal upon seeing the appellant No.1 became emotional and started crying. On 17.8.1983 early in the evening, when PW-2 was so crying loudly, appellant No. 1 Asraf Sk. along with appellant No. 2 Rashid Molla suddenly entered their house and assaulted P.W. 2 for crying loudly. Seeing this, Shibcharan Pal (hereinafter referred to as the 'deceased') being the father of P.Ws. 1 and 2 came out from his hut and protested against the acts of the appellants in assaulting P.W.2. At this the appellants threatened that they would murder every member of the family of the deceased. Apprehending danger, P.W. 1 along with the deceased went to the house of one Suphal Pal, being a local leader, to complain about the aforesaid incident. But said Suphal Pal was not available at his residence then. Thereafter they reported the incident to one Shah Alam Molla, being a member of the local Panchayat. Shah Alain Molla assured P.W. 1 and her father that necessary steps would be taken on the next day. Thereafter they returned home at about 8 p.m. After returning back home, the deceased went out to the field to ease himself. Immediately the witnesses saw the two appellants following the deceased quickly. They became suspicious about the movement of the two appellants. The deceased having not returned home despite passage of 5/7 minutes since he left for the field, P.W. 1 along with P.W.2 Pasani Pal became suspicious and they went out in search of their father. As soon as they reached near the local hat (market) they noticed the two appellants were running away quickly "by their side". Soon after they noticed their father Shibcharan Pal, aged about 65/70 years was lying dead on the steps of the tank on the southern side situated near the hat (market). The legs of the deceased were lying submerged in the water of the tank while upper part of the body was lying above water on the bank. They further alleged in the said complaint that their father was murdered by throttling and other methods. They further expressed their suspicion that at about 8 p.m. appellants Asraf Sk., Rashid Molla and others had murdered their father by throttling and by torturing him and left the dead body on the bank of the tank of Keyatala Market (hat) and fled away. This complaint was reduced into writing by the scribe, Niranjan Pal (PW- 9) and handed over to P.W. 14 when he came to the place of occurrence. Said complaint was taken to the police station and was registered as an F.I.R. under Section 302/34 I.P.C., against the two appellants at 3.30 a.m. on 18.8.1983. After investigation Police submitted charge sheet against the two appellants and one Basir Sk. (since acquitted). The case was committed to the Court of Session, North 24, Parganas. On perusal of the materials on record learned trial Court framed charges against the two appellants and another accused, namely, Basir Sk., under Section 302/34 I.P.C., to which the appellants and other accused pleaded not guilty. In course of the trial, 16 witnesses were examined. As noted above, the present appellants were convicted while accused Basir Sk. was acquitted. Before the High Court the stand was that the case rests on circumstantial evidence and the circumstances do not warrant conclusion of guilt of the accused. The High Court did not accept this plea and confirmed the conviction.

(3.) In support of the appeal, learned counsel for the appellants submitted that the trial Court and the High Court have erred in holding that the circumstances were sufficient to hold the appellants guilty.