CHUNDA MURMU Vs STATE OF WEST BENGAL
Bench: SWATANTER KUMAR,RANJAN GOGOI
Case number: Crl.A. No.-001357-001357 / 2008
Diary number: 29648 / 2006
Advocates: Vs
ABHIJIT SENGUPTA
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1357 OF 2008
Chunda Murmu ….Appellant
Versus
State of West Bengal ….Respondent
J U D G M E N T
RANJAN GOGOI, J.
This appeal, by special leave, is directed against the judgment dated
10.04.2006 passed by the High Court of Calcutta affirming the conviction of
the accused-appellant as recorded by the learned trial court under Sections
302, 364 and 201 of the Indian Penal Code (IPC). The accused-appellant,
Chunda Murmu, has been sentenced to undergo rigorous imprisonment for life
under Section 302 of IPC whereas under Sections 364 and 201 of IPC each, he
has been sentenced to suffer rigorous imprisonment for seven years alongwith
fine. All the sentences have been directed to run concurrently.
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2. The case of the prosecution, in short, inter-alia, is that on 15.03.1990,
one Anil Mardi, P.W.7, lodged a complaint in the Habibpur Police Station to
the effect that his sister – Kamla, who was married to the accused appellant
for about six years, had been missing since 10.03.1990. It had been further
stated, in the complaint filed, that though the complainant had searched for his
sister, her whereabouts were not known and that the complainant suspected
that she was murdered by her husband, namely, the accused-appellant.
3. On the basis of the aforesaid complaint, P.W.16 – P.K. Dutta, Sub-
Inspector of Police, filed the formal FIR – Ex.6 on the basis of which
Habibpur P.S. Case No. 17/90 was registered. In the course of investigation,
the accused-appellant was arrested on 15.3.1990 at Palashdanga, whereafter,
he was brought to Habibpur Police Station. According to the prosecution, the
accused-appellant, while in custody, had made a statement that he had
murdered his wife and had kept the dead body concealed in the khuti ghar of
his father at village Horegram. Furthermore, according to the prosecution, on
the basis of the aforesaid statement made by the accused, the dead body of
deceased Kamla was recovered from the khuti ghar of one Charan Murmu, the
father of the accused-appellant, in the presence of seven witnesses including
the Block Development Officer, Shri Manas Kumar Mandal, P.W.15.
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Thereafter inquest was held on the dead body which was sent for postmortem
examination. In the report of the post mortem, the cause of death was
mentioned by the Doctor as homicidal throttling. In the course of
investigation, the I.O. – PW 16, also seized some mud stained hay from the
Kuthi ghar, some earth etc. in the presence of witnesses vide Seizure List
Ex.5. The wearing apparels of the deceased, i.e. mud stained green check
saree, mud stained green petty coat, black blouse stained with mud were also
seized in the presence of witnesses vide Seizure List Ex.3. Thereafter, at the
conclusion of the investigation, chargesheet was submitted against the
appellant-accused and his father Charan Murmu under Sections
302/364/201/34 of IPC. The father of accused-appellant died and charges
under the aforesaid Sections of the IPC were framed against the accused
appellant.
4. The accused-appellant pleaded not guilty to the charges framed and
claimed to be tried. In the course of the trial, 16 witnesses were examined by
the prosecution and none by the defence. However, the accused appellant was
examined under Section 313 Cr.P.C. in the course of which he had stated that
he had been falsely implicated in the case. Thereafter, at the conclusion of the
trial, the accused-appellant had been convicted and sentenced as aforesaid.
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5. We have been elaborately taken through the entire evidence on record
by the learned counsel for the appellant. A consideration of the evidence of
the prosecution witnesses examined in the case would go to show that there
are no eye witnesses to the occurrence and the prosecution has sought to bring
home the charges levelled on the basis of certain circumstances that have been
unfolded by the witnesses examined. Having considered the evidence on
record, we are of the view that in the present case the prosecution relies on the
following circumstances to establish the guilt of the accused:
(1) The accused-appellant and the deceased were married for about 6 years and that there were frequent quarrels between the two.
(2) A salish (meeting) was held to resolve the disputes between the husband and the wife which, however, was not attended by the accused and his deceased father.
(3) The deceased had left the matrimonial home and went to reside with PW 6 –Bishu Murmu.
(4) The accused had brought back his wife to his home from where she had gone missing from 10.03.1990.
(5) Despite a vigorous search to locate the deceased, her whereabouts could not be known.
(6) That the accused was arrested on 15.03.1990 from Palashdanga and while in police custody he had made a statement that he had killed his wife and kept the body hidden in the kuthi ghar of his father.
(7) On the basis of the aforesaid statement the dead body was recovered from the place pointed out by the accused in the presence of PW 15- Block Development Officer and other witnesses
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including PW 5 - Subhas Soren and PW 6 – Bishu Murmu, who had dug out the dead body, as directed by the police.
6. The short question that needs to be answered is whether all or any of
the aforesaid circumstances have been proved and established and if so
whether on the basis of the said circumstances the conviction and sentence of
the accused is tenable in law?
7. Learned counsel for the appellant has vehemently contended that the
prosecution version that the accused was arrested on 15.03.1990 and that after
his arrest he had made a statement leading to recovery of the dead body
cannot be believed inasmuch as it is proved and established by the other
materials on record that the appellant was produced before the Magistrate on
17.03.1990 following his arrest which is claimed to have been made on
15.03.1990. According to the learned counsel, the very fact that the accused
appellant was produced before the Magistrate on 17.03.1990 would go to
show that the prosecution version with regard to his arrest on 15th March and
the alleged statements made by him on the said date are extremely doubtful. It
is further urged by the learned counsel that the alleged statement made by the
accused was not in the presence of police officers but the same was made
before the witnesses examined by the prosecution. It is also contended by the
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learned counsel that at the time of recovery of the dead body, PW 15- the
Block Development Officer, could not identify the accused. Learned counsel
had further pointed out that in the course of the examination of the accused
under Section 313 Cr.P.C., the recovery of the dead body and other articles as
made by the prosecution had not been put to the accused so as to enable him
to explain the said circumstances appearing against him.
8. In reply, learned counsel appearing for the State has contended that all
the proved circumstances give rise to a complete chain of events which
unerringly point to only one direction, i.e., it is the accused and nobody else
who had committed the crime. Learned counsel has also pointed out the
evidence of PW 16 – the Investigating Officer wherein the reasons for non
production of the accused before the learned Magistrate at any time before
17.03.1990 have been explained. By referring to the evidence tendered by the
same witness, i.e., the Investigating Officer (PW 16) it has been pointed out
that the statement of accused leading to recovery of the dead body was made
while the accused was in police custody and that the said statement was so
made in the presence of the police officers and as well as the other witnesses
examined by the prosecution. Insofar as the circumstances put to the accused
in his examination under Section 313 Cr.P.C. is concerned, learned counsel
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has pointed out that the recovery of the dead body was put to the accused in
the course of such examination and there is no lacuna in this regard, as
contended on behalf of the appellant.
9. The fact that the accused and the deceased were married and that there
were frequent quarrels between the two is not seriously disputed. It is also not
in dispute that the deceased had left her husband and had been residing with
PW 6 from whose house she was brought by the accused on 10.03.1990.
Insofar as the issue with regard to the arrest of the accused on 15.03.1990 is
concerned we find that, the evidence of PW 16 - the Investigating Officer of
the case does contain an explanation for the production of the accused before
the learned Magistrate on 17.03.1990 despite his arrest on 15th March. If the
said evidence of PW 16 is to be reasonably read, the prosecution version of
the arrest of the accused on 15th of March remains unaffected. From the
evidence of Investigating Officer it is also clear that the statement of the
accused leading to the recovery of dead body was made while he was in
custody and the same was in the presence of police officers, though, at that
time some other persons were also present in the police station. The recovery
of the dead body, therefore, is a fact which is admissible in evidence under
Section 27 of the Evidence Act. The absence of identification of the accused
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by PW 15 at the time of recovery of the dead body, according to us, will not
affect the core of the prosecution case. Insofar as the alleged defects in the
examination of the accused under Section 313 Cr.P.C. is concerned, having
perused the record, we find that all incriminating circumstances relevant to the
case had been put to the accused and no material irregularity causing any
prejudice to the accused can be attributed to the prosecution in this regard. All
the circumstances relied upon by the prosecution, therefore, can be held to be
proved beyond reasonable doubt. The said circumstances, in our considered
view, are more than adequate to enable us to come to the conclusion that the
conviction of the accused so far as the offences under Sections 302 and 201
IPC is concerned had been correctly made in the facts and circumstances of
the present case. We therefore affirm the aforesaid part of the order of the
High Court.
10. Insofar as the offence under Section 364 IPC is concerned, we have
considered the materials on record on the basis of which the aforesaid offence
has been held to be proved. According to us, the action of the accused in
bringing back his wife to the matrimonial home from the house of PW 6 –
Bishu Murmu cannot attract the necessary ingredients of either the offence of
kidnapping or abduction so as to attract Section 364 IPC.
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11. Consequently this appeal is partly allowed. The conviction and sentence
under Sections 302 and 201 IPC is maintained whereas the conviction under
Section 364 IPC and the sentence imposed is set aside.
...…………………………J. [SWATANTER KUMAR]
……………………………J. [RANJAN GOGOI]
New Delhi, May 10, 2012.
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