SAILEN SARKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) COMPLAINT :- On or about April 16, 2001 Jogeshwar Sarkar, PW-1 made a written complaint to the officer in-charge, Gopalnagar Police Station that he along with other villagers of village Nahata, Post Office Nahata, Police Station- Gopalnagar discovered a dead body in a sack under Nahata Bridge near his house at about 2.00 p.m. Police came and with the help of the villagers uncovered the dead body. The villagers could not identify the dead body who was female, aged about thirty-six/thirty-eight years old, according to Jogeshwar. On the basis of the said complaint the concerned Police Station initiated a case under Section 302/201 of the Indian Penal Code as P.S. Case No.31 dated April 16, 2001. The Police also started an unnatural death case no.12 of 2007 dated April 16, 2001. PW-14 , Pankaj Kumar Biswas investigated into the matter. He prepared Inquest Report appearing at pages 3-9 of the Paper Book. He also prepared a sketch map along with an index appearing at pages 10-13 thereof. PW-10 carried the postmortem examination and submitted a report appearing at page 14 of the Paper Book. The doctor opined that death was due to strangulation after commission of rape upon the victim. The doctor also opined that the approximate time of the death was sixty hours prior to conducting of the postmortem examination which was carried on September 17, 2001. According to the doctor, the death was anti mortem and homicidal in nature. The dead body was subsequently identified. The victim was the daughter of PW-5 and PW-6. The victim was found missing from her house from the evening of April 14, 2001. After identification of the dead body the brother of the victim being PW-7 also made a written complaint as against three accused being Sailen, Samir and Babu. According to the complaint, all three approached the house of the victim and asked permission of her parents to take her to a cinema. They came at about 5O clock in the evening when PW-5 did not agree. They again came at 7O clock in the evening and took the victim along with them. Since then the victim was missing. At about 11 p.m. the victims relatives being PW- 4, 5 and 7 approached the accused and met them at their house. On enquiry, the accused expressed their inability to disclose the whereabouts of the victim. The Police subsequently arrested all three of them. Initially, they were absconding. Sailen was arrested on April 30, 2001, Babu was arrested subsequently, so was Samir. Since Samir was a minor his case was separately dealt with under the appropriate Juvenile Law. Sailen and Babu were chargesheeted. During trial Sailen was granted bail on July 27, 2001. He again absconded. He was re-arrested on January 25, 2008 and was again granted bail on July 11, 2008. Both the accused denied charges and opted to be tried. After the trial was complete and judgment was awaiting Babu again absconded. Sailen was however taken into custody on being found guilty of the offence by the learned Trial Judge.

(2.) EVIDNECE :- VILLAGERS WHO DISCOVERED THE DEADBODY :- PW- 1; 2 & 3 (Jogeshwar Sarkar; Bhuban Debnath & Tarini Haldar ) :- PW-1, 2 and 3 discovered the dead body under the Nahata Bridge. Jogeshwar was the informant. He lodged the complaint with the Police as referred to above. He was consistent with his complaint exhibited during the trial. Bhuban also discovered the dead body along with Jogeshwar. He corroborated PW-1. According to him, the female was about thirty/thirty-one years old whereas according to Jogeshwar, she was thirty-six/thirty-eight years old. Tarini was also consistent with PW-1 and 2. They all found another sack containing one palm-shoe and wearing apparel. The place under the bridge was somehow muddy. According to Tarini, about thousand people assembled to watch the dead body. Tarini however did not say anything about the age of the victim. According to them, body was discovered at about 2.00 2.30 p.m. The Police conducted the post mortem at 5.00 p.m. They put their signature at the request of the Police. RELATIVES :- PW-4, 5, 6 and 7 ( Bashudeb Sarkar, Joshna Rani Sarkar, Saraswati Sarkar & Joy Deb Sarkar) :- PW-4 and 5 were the unfortunate parents whereas PW-6 and 7 were the siblings. PW-4 stated that Sailen, Samir and Babu called his daughter to show a film at about 6.00 p.m. On that day she did not come back. After searching here and there they went to the house of the accused. The accused were not available in their houses. About three days later he got information that the dead body was found under Nahata Bridge inside a sack. They went to Gopalnagar Police Station and then to morgue and identified the dead body to be of his daughter. He was a rickshaw puller. His wife used to work as cook in the house of others. It was a festive day of first Baisak. The lady went for cooking in the neighbourhood. PW-8 was the local C.P.I.M. leader and had good terms with him. In every matter he used to get help from PW-8. PW-5 was the unfortunate mother of the victim. Sailen, Samir and Babu approached her at about 4 p.m. at her house and asked for permission to take the victim for cinema. Initially, she did not allow. Again at 7 p.m. Samir and Babu came to their house and convinced her that they would bring the victim for cinema and after the cinema show they would bring her back to her house. She gave permission. Victim went out with them. At the night she did not come back. Her husband and her son went to the house of the accused persons. All the three accused divulged that victim had left for her house after watching the cinema. They even faltered to disclose anything more. Next day they lodged a missing diary with Haringhata Police Station and after about three days they got information that a deadbody was recovered from Nawahata Bridge. They identified the body after seeing her wearing apparel. The body was cremated after being brought from Bongoan Hospital. The accused raped her daughter and murdered her. All of them were identified by the witness. In cross-examination she however deposed that she did not divulge to the Police that the accused had come to their house and had taken her daughter away after convincing her for going to cinema show or that they had gone to the house of the accused in search of the victim. PW-6 was the sister of the victim. She was also consistent with her parents. PW-7 was the brother of the victim. He was also consistent with his parents and sister. He also deposed that the left shoe of the victim was recovered by the Police at the instance of accused Sailen. Same was found from a garden. In cross-examination he disclosed that he was also an accused in a rape case. He also disclosed that Sailen was distantly related to them. He was however unable to give the measurement of the shoe of her sister. PW-8 (Sunil Das) :- This witness was the local C.P.I.M. leader. According to him, the villagers recovered a shoe from the banana garden of Jogendra Nath Sarkar and kept it in his house. He also identified the small hole in the banana garden to the Police. The Police took the shoe from his house and seized the same. He was signatory to the seizure list. Except the seizure of the shoe he had no knowledge about the present case. PW-9 (Buddhi Sarkar) :- The witness was a Van Puller who carried the dead body from Nawhata to Gopal Nagar Police Station. PW-10 (Dr. Hirendra Nath Dutta) :- The witness was the Medical Officer working in Bangaon S.D. Hospital as Superintendent. On April 17, 2001 he conducted the post mortem of the dead body identified by one Nagen Gurung, Constable attached to Gopalnagar Police Station. He proved the Post mortem Report disclosed in evidence. According to him, the cause of death was due to severe shock and haemorrhage from vagina caused by rape and due to effects of strangulation by ligature as noted in the report, ante mortem and homicidal in nature. The doctor also examined Sailen and found him potent. Sailen admitted before him that he had enjoyed the sexual intercourse with the deceased before the murder. Such statement was made by him in presence of constable Nagen Gurung of Gopalnagar Police Station. In cross-examination, the doctor stated that the dead body was decomposed. PW-11 and PW-12 ( Harendra Nath Biswas & Moslim Mondal) :- These two witnesses were declared hostile. Harendra Nath stated that neither the victim nor her father was known to him. He did not state to the Investigating Officer that he had seen the victim along with Samir and Babu on their way to cinema hall on the date of occurrence. He also did not state to the Investigating Officer that that all the three accused were anti-socials. He did not see the dead body. He however admitted that he had been interrogated by the Investigating Officer, however did not disclose what statement he had made before the Police. Moslim denied having interrogated by the Investigating Officer. He also stated that he neither knew Basudeb nor his daughter, the victim. He stated that he had not stated to the Investigating Officer that he had knowledge that three accused had taken away the victim from her house and murdered her and fled away. He also did not state to the Investigating Officer that they had succeeded to apprehend accused Samir at night one day when Samir had confessed before them that they had murdered the victim after having raped her. He also did not state to the Investigating Officer that they had informed Police Station over telephone and Samir had been handed over to the Police when Investigating Officer had reached their village. PW-12, PW-14 & PW-15 (Samaresh Chandra Sarkar, Pankaj Kr. Biswas & Shyamal Kr. Sarkar) :- The above witnesses conducted the investigation during different period. Samaresh was posted at Haringhata Police Station when he took up the investigation. During investigation he collected the forensic report and submitted charge sheet under Section 302/376/201 of the Indian Penal code against the accused. Pankaj was posted at Gopalnagar Police Station on April 16, 2001. He conducted the investigation. After receipt of the information he held investigation up till the period when the case was transferred to Haringhata Police Station. He proved the FIR which was tendered as exhibit. He also proved the G.D. Entry and Enquiry Report. According to him, the dead body was kept in a plastic packet whereas another plastic packet contained wearing apparel, shoe etc. He seized both the packets. As per the seizure list accused Sailen disclosed to him that one shoe was kept concealed in the banana garden. Sailen was taken to the banana garden, when he brought out the shoe from inside a hole covered with banana leaves, the seizure list was prepared. The witnesses signed the seizure list. The shoe discovered from the banana garden was of the left leg. He also briefly stated how he had carried investigation. According to him, PW-11 (Harendra Nath Biswas) had told him that he had seen victim going to cinema at about 7 p.m. along with all the three accused. The names of the accused were disclosed by Joydeb on April 17, 2001. PW- 15 took up the investigation on and from June 22, 2001 when the case was transferred to Haringhata Police Station from Gopalnagar Police Station. Pankaj Biswas arrested Samir on June 30, 2001. On July 17, 2001 Samir was medically examined. On August 2, 2001 his ossification test was done. On September 24, 2001 the Hero Jet maroon colour ladies bi-cycle was seized from the house of Samir. Accused Babu was absconding and prayer for issuance of warrant of arrest was submitted by Shyamal. He sent vaginal swab of the victim for medical examination.

(3.) EXAMINATION OF THE ACCUSED :- Sailen and Babu were examined by the learned Judge. Apart from bare denial of the charges, they neither stated anything in addition to what the witnesses had said nor disclosed their alibi. Sailen denied having made any statement to the doctor. According to him, he signed the seizure list on being asked by the Officer in-charge at the Police Station on the assurance that he would be released on bail. Babu also denied the charges brought against him.