RABIN MALLICK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appellant was tried on a charge of having committed offences of kidnapping and murder of Fatik @ Abhishek Mondal along with two others and causing disappearance of his body by concealing it in a pond. By judgment and order dated 19.05.09, 20.05.09 and 21.05.09 the appellant-accused has been found guilty u/s 364 of the I.P.C. read with section 120B I.P.C. and sentenced to suffer rigorous imprisonment for life and pay a fine of Rs.5,000/- in default to suffer further rigorous imprisonment for one year. The appellant-accused is also found guilty u/s 302 of the I.P.C. read with section 120B I.P.C. and sentenced to death and to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for one year, u/s 201 of the I.P.C. read with section 120B of the I.P.C. has been sentenced to suffer rigorous imprisonment for 7 years and pay a fine of Rs.2,000/- in default to suffer further rigorous imprisonment for 6 months. Accordingly, the Ld. Trial Court has made a reference u/s 366(1) of Cr.P.C. for confirmation of sentence of death and the appellant has also preferred an appeal through jail.

(2.) In nutshell, the prosecution case is that on 11.09.2007 at about 08.00 a.m. the deceased Fatik @ Abhishek Mondal left his house along with Rabin Mallick for catching fish and as he did not return till 10.30 p.m., his mother Smt. Gouri Mondal (P.W.11) lodged a missing report with Titagarh Police Station. On the next day i.e. 12.09.2007, the appellant came to be accosted by Shri Ashok Karmakar (PW-1), maternal uncle of deceased Fatik and his associates and was taken to Titagarh Police Station where report came to be lodged by Ashok Karmakar that the appellant along with two others namely Samir Debnath @ Bullet and Rajesh Sewli @ Tarit strangulated Fatik to death and concealed his dead body in a pond. The said report was treated as FIR and the police arrested the appellant Rabin Mallick. On his interrogation he disclosed where the dead body of Fatik was concealed and agreed to lead the police to the said spot. On the way the police arrested Bullet and Tarit and along with complainant and witnesses were taken to the place by the side of Central Road, Nonachandanpukur of Barrackpore. The appellant and his associates took out the dead body of Fatik @ Abhishek Mondal which was concealed under Kalmi aquatic plants in the pond. The Police in the presence of Prasenjit Bain (PW-3) and Sudip Sarkar (PW-5) and others prepared an inquest report (Ext. 1/4). The police also recovered one old thin yellow colour nylon rope on 13.09.2007. The dead body was sent for post-mortem examination. The Police seized one black BSA SLR bicycle having frame no. GKG 717319 from the house of Rabin Mallick under the seizure list no. G17. On completion of investigation charge sheet came to be filed. It appears that the co-accused in the case namely Samir Debnath @ Bullet and Rajesh Sewli @ Tarit were found to be juvenile on the date of the incident and, therefore, their case was separated and they were sent to the Juvenile Justice Board, and the case of the appellant-accused Rabin Mallick came to be committed to the Court of Sessions for trial. The appellant pleaded not guilty and came to be tried. On conclusion of the trial, the appellant was found guilty and was convicted and sentenced, against which he has preferred this appeal.

(3.) It is contended by the Ld. Counsel appearing for the appellant that the prosecution case is based upon circumstantial evidence like last seen. The alleged extra judicial confession made before PW 1 to 5 and 9, the discovery of the dead body at the instance of the accused. The recovery and seizure of the bicycle of the deceased from the house of the appellant-accused and the discovery of the Yellow Nylon Rope at the instance of the juvenile Bullet and Tarit. It is submitted that the prosecution has not brought anything on record to show what was the motive behind commission of murder of Fatik and, therefore, it cannot be said that the appellant-accused was responsible for killing the deceased. It is submitted that the dead body of the victim was found more than 24 hours after the deceased had left his house with the appellant-accused and according to the evidence of Dr. Abhijit Ghosal (PW-13) who conducted the postmortem of the dead body of Fatik on 14.09.07, death was caused 2/3 days before 14.9.2007. Therefore, the prosecution s case that the appellant has committed the murder of the deceased mainly because he has left along with the deceased is not sufficient to establish the charge of murder as there is a long gap and possibility of other persons having committed the murder cannot be ruled out. It is further submitted that the evidence of PW 1 to 5 i.e. the uncle of the deceased and his friends goes to show that the appellant-accused was accosted by them threatened, tortured and wrongfully detained for more than 2 hours before he was taken to police station, Titagarh, itself would go to show that the alleged extra judicial confession was not voluntary. It is submitted that as the co-accused in the case namely Bullet was not tried along with the accused as he was juvenile, the discovery of the yellow nylon rope at his instance does not lead the prosecution to bring home the guilt at the door step of the appellant-accused.