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Acquitted in Sections 498A, 304B/34 of IPC,

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side

Present :THE HON’BLE JUSTICE ANIRUDDHA BOSE AND THE HON’BLE JUSTICE SANKAR ACHARYYA

CRA 465 of 2007
Hazratul Islam @ Hazratul Sk. @ Hazatul Sk. & Ors.
Vs.
The State of West Bengal

For the appellant : Mr. Tapan Dutta Gupta, advocate.
Mr. Parvej Ananm, advocate.

For the State : Mr. Subir Banerjee, (APP).
Mr. Jayanta Banerjee, advocate.
Mrs. Kakali Chatterjee, advocate.

Heard on : 07.06.2016, 04.07.2016, 13.07.2016,
14.07.2016, 21.07.2016, 18.11.2016.

Judgment on : 23.12.2016

SANKAR ACHARYYA, J.
Appellants have preferred this appeal challenging the judgment of conviction dated 18.05.2007 passed by learned Additional Sessions Judge, 5th Fast Track Court, Malda in Sessions Trial No. 57 (10) 05 corresponding to Sessions Case No. 174 of 2004. In the impugned judgment all the five appellants were found guilty of the charge under Section 302 of the Indian Penal Code (in short I.P.C.) read with Section 34 of the I.P.C. and thereby convicted on 18.05.2007. On the following day 19.05.2007 by an order they were sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/- each, in default, to suffer rigorous imprisonment for two years each. In the said judgment dated, 18.05.2007 all appellants were acquitted of the charges under Sections 498A/34, I.P.C. and 304B/34, I.P.C. (Page 15 of the judgment). Said judgment is called as impugned judgment hereinafter. No appeal has been filed against such acquittal. In the present appeal on 07.12.2007 except appellant no. 1 (in short A-1) the other appellants (A-2, A-3, A-4 and A-5) have been granted bail.

In the trial Court, all these five appellants as accused were charged under Section 498A/34, I.P.C. for subjecting physical and mental torture on the victim Rubi Bibi who was the wife of A-1 in the house of accused persons since after her marriage till her death in the night of 29.03.03 and 30.03.03. Second charge against the accused persons was framed under Section 304B/34, I.P.C. for committing dowry death of said victim in the house of the accused persons in the night of 29.03.03 and 30.03.03. Alternative charge under Section 302/34, I.P.C. was framed against all accused to the effect that they on the night of 29.03.03 and 30.03.03 at their house in furtherance of common intention committed murder to the victim Rubi Bibi.

The case was first registered as Harishchandrapur Police Station case no. 32/03 dated 30.03.03 under Sections 302/304B/34, I.P.C. against all appellants on the basis of written complaint (FIR) of victim’s father Hafijuddin @ Bheda which was handed over to the then officer in charge S.I. Ashim Gope (PW 6) of Harishchandrapur P.S. on 30.03.03 at 07:25 a.m. at the house of Hafijuddin and forwarded to police station. Before commencement of trial of the case said Hafijuddin passed away. In trial, prosecution examined eleven witnesses and also adduced the written FIR (exhibit- 1), post mortem report (exhibit- 2), report of inquest over the dead body of victim held by B.D.O. as Executive Magistrate (exhibit- 3), formal FIR (exhibit- 4), two rough sketch maps (exhibits 5 and 5/1), index of exhibit- 5/1 (exhibit- 5/2), three seizure lists (exhibits 6, 6/1 and 6/2), inquest report over the dead body of victim prepared by police officer (exhibit-

7), dead body challan sending the corpse of the victim for post mortem examination (exhibit- 8) and certificate of marriage between A1 and victim (exhibit- 9). Wearing apparels of the victim which were seized after post mortem examination and blood stained earth which was collected from the place where dead body was found were produced by prosecution during trial and the same were marked Mat. exhibit- I collectively. Accused persons were examined under Section 313 of the Code of Criminal Procedure, 1972 (in short Cr.P.C.) but they did not adduce any evidence.

Since there is no appeal against acquittal of the appellants of the charges under Sections 498A/304B/34 of the I.P.C. we refrain ourselves from taking the findings of the trial Court relating to said charges under our consideration in this appeal against conviction and sentence of the appellants of the charge under section 302/34 of the I.P.C.

The case under our consideration in a capsule is that the informant gave her daughter Rubi in marriage with his co-villager A-

1. During her stay in her matrimonial home accused persons used to commit torture on her. Due to unbearable torture she went to her father’s house but her father again sent her to her matrimonial home. After few months of her marriage in the early morning of 30.03.03 her dead body with throat cut and other injuries was found lying in the field near a pump machine. Her father suspected that the accused persons killed her.

During examination of accused persons under Section 313, Cr.P.C. they denied the prosecution case entirely. However, during cross-examination of the witnesses of prosecution the appellants did not deny the fact that A-1 is the husband of the victim Rubi Bibi @ Mini Bihi, A-2 is elder brother of A-1, A-3 is the mother of A-1, A-4 is sister of A-1 and A-5 is aunt (mother’s sister) of A-1. Other unchallenged facts are that in the night of 29.03.03 and 30.03.03 Rubi Bibi was in her matrimonial home and in that night she was murdered and her dead body was found in a field at a short distance from her matrimonial home in the early morning of 30.03.03. It is undisputed case of the prosecution that in that fateful morning at about 5:30 a.m. A-4 informed to the victim’s father that Rubi Bibi was brutally murdered and her dead body was lying in the field beside pump machine of Ataur Rahaman.

There is no direct evidence of the incident of murder of Rubi Bibi. Prosecution relied upon circumstantial evidence.

Although at the time of examination of the accused persons under Section 313, Cr.P.C. each of them stated that each statement made by witnesses in their depositions is false but during cross- examination of said witnesses some relevant statements of the witnesses were not challenged on behalf of accused persons which facts shall be treated as admitted in the eye of law. Statements of accused persons, in the form of answer to the questions of court explaining the facts and circumstances revealed in the evidence adduced by prosecution against them, are not evidence. Such statements in the form of answers of accused persons are recorded in trial without administering oath to the accused persons. Depositions of witnesses are recorded after administering oath to them and their relevant statements are regarded as evidence for consideration of its veracity and truthfulness as far as admissible in the eye of law. In that view, it may be safely held that the admitted facts of the case are that the A-1 is the husband of the victims and the other appellants are near relative of the victim’s husband and that victim’s father’s house and her matrimonial home are in same village and that the father of the victim transferred five cottahs land to victim after her marriage and that the accused persons told her for transfer of 2 ½ cottahs land to A-1 and that in the fateful night of 29.03.03 and 30.03.03 the victim stayed in her matrimonial home and in that night the victim house wife died due to her homicidal death with throat slit injury and that her dead body was found in a cultivable land near a pump machine in the early morning of 30.03.03 and that the A-4 reported to victim’s father in that morning in his house about brutal homicidal death of the victim.

In the impugned judgment the trial Court found the accused persons guilty of committing murder to the victim, inter alia mainly on the ground that they had special knowledge as to how in the fateful night the victim was murdered and why her dead body was found in the field outside their house but the accused persons did not explain it. To arrive at the decision the trial Court fortified the judgment taking recourse of Section 106 of the Evidence Act.

Learned counsel for the appellants argued that since the prosecution case of inflicting torture upon the victim by the accused persons has been proved to be false and unfounded the entire prosecution case has no leg to stand upon. He submitted that the case as per FIR has not been substantiated by evidence and so the entire story of the prosecution is vague and frivolous. According to him, neither from the evidence adduced by prosecution nor from the circumstances presumption under Section 106 of the Evidence Act cannot be drawn against the appellants. He advanced his arguments that the investigating police officer described the place of occurrence is near a shallow pump whereas in the impugned judgment the trial Court held the place of murder of the victim is the house of appellants. Learned counsel for the appellants drew our attention to certain other circumstances that there was no eye-witness of the occurrence and that there is no evidence to prove that on the date of incident the deceased or A-1 was in their house and that there is no evidence to prove that other appellants (A-2, A-3, A-4 and A-5) used to live in the same house and that learned Judge in the trial Court disbelieved story of torture upon victim since after marriage or soon before the death of the victim house wife and that there is no evidence against appellants about any motive to murder the victim and that the blood stained earth was not sent to FSL for analysis and that no incriminating weapon was recovered from appellants. He submitted that in the eye of law burden of the prosecution is to prove its case beyond all reasonable doubts and that suspicion, however strong it may be cannot take place of proof. In support of his said arguments he relied upon the principles discussed in the case of Sujit Biswas Vs. State of Assam and Another reported in (2014) 1 SCC (Cri) 677. In support of his arguments he also cited the judgment of the Hon’ble Supreme Court reported in (2009) 2 C Cr LR (SC) 48, (2013) 2 C Cr LR (SC) 1, (2010) 1 SCC (Cri) 955, (2014) 1 SCC (Cri) 677, (2011) 2 C Cr LR (SC) 467 and (2002) 2 C Cr LR (SC) 587.

On the other hand, learned counsel for the State argued that this is a case of brutal murder of a house wife within three months of her marriage while she was in her matrimonial home. She had drawn our attention to the circumstances that undisputedly A-1 is the husband and A-2 to A-4 are relations of the husband of the deceased house wife and it is not under challenge that the house wife Rubi Bibi alias Mini Bibi died due to her homicidal death in the night of 29.03.2003 and 30.03.2003 and that in the fateful night she stayed in her matrimonial home and that in the early morning of 30.03.2003 dead body of Rubi Bibi was found at a field near pump machine of one Ataur Rahaman at a distance of about two bighas from house of accused but surprisingly there was no explanation of the accused persons either of disappearance of Rubi Bibi from her matrimonial home in the fateful night or about recovery of her dead body from such field and more surprisingly there was no attempt of the accused persons to search out Rubi Bibi in the fateful night. According to learned counsel for the State the attending circumstances in the capsule clearly say that the accused persons and none else are responsible authors of the heinous crime of the murder of the young house wife within a few months of her wedding.

Determining question in this appeal is whether the trial Court erroneously convicted and sentenced the appellants relying upon the prevailing circumstances.

Having gone through the depositions of the witnesses examined by prosecution it appears that the informant who was the father of the victim died before commencement of trial. PW 2 is scribe of the FIR, PW 1 was member of Panchayat Samitee and by village courtesy he is uncle of the deceased and getting information of death of Rubi Bibi he informed the police over phone in response to which police came to the spot, PW 3 is a neighbour of informant and accused persons, PW 4 held post mortem examination over the dead body, PW 6 was officer in charge of Harishchandrapur Police Station who arrived at the place of occurrence on receiving information from PW 1 over phone and receiving written complaint from victim’s father forwarded the same to police station for registering FIR and engaged PW 11 for investigation of the case, PW 7 raised alarm on seeing dead body of Rubi Bibi, PW 10 held inquest over the dead body as Executive Magistrate, PW 11 is the investigating police officer. PW 5, PW 8 and PW 9 were declared hostile. PW 8 is the father of victim’s husband (A-1) and PW 9 is the wife of victim’s husband’s elder brother (A-2).

In the impugned judgment for convicting the accused persons it was observed, “So considering the entire materials on record I hold that the presumption u/s 106 of the Evidence Act can be drawn against all the accused persons because the prosecution has proved that on the night of murder the deceased was murdered in the house of the accused persons and at that time she resided with them together in the house of accused persons and her dead body was found lying outside on the next date of the incident and the accused persons did not give any explanation as to how she was murdered and as to how and why her dead body was found outside though she is the housewife of the accused persons. So all the above circumstantial evidences on record i.e. the chain of circumstances clearly point out towards the guilt of the accused persons behind the murder of the deceased and there cannot be any other presumption, conclusion or inference besides this.

So in view of above circumstantial evidences on record, absence of explanation from the side of the accused persons regarding murder of the deceased and the provisions of Section 106 of the Evidence Act, I hold that all the accused persons, in furtherance of their common intention, have murdered the deceased brutally in their house at the mid night about three months after her marriage and most cruelly removed the dead body to a distant place outside their house in order to screen themselves from the legal punishment.”

On close scrutiny on the evidence of prosecution on record we do not find any evidence to accept the findings of the trial Court that the victim housewife was murdered in the house of accused persons and that in that night accused persons were present in that house and that the dead body was removed by accused persons from that house to the distant place where from the dead body was recovered. There is also no evidence that at the relevant time all accused persons used to live in same house under a roof. In our opinion, the trial Court acted on the basis of conjecture to believe such events and proceeded to rope the accused persons in a stigma of murderer of Rubi Bibi. In order to make it more clear we like to point out that none of the witnesses said that all accused persons used to live in the same house or that in the fateful night any accused was seen present with the victim in the house or that any sign of murder or removal of the dead body was found in the victim’s matrimonial home or on the way between her matrimonial home and the place of recovery of the dead body even when it is evident that incised wounds were found on throat and ears of the victim. No incriminating weapon was also recovered at the instance of any accused. Said lapses on the part of prosecution appear to us as missing links to form a chain of circumstances. That apart, it should not be lost sight that A-4 informed the father of the victim first about the incident of murder and the fact that none of the accused persons absconded after the incident. These gestures of accused persons do not stand against presumption of their innocence. Truly, strong suspicion prevail in the attending circumstances against husband (A-1) of the victim due to homicidal death of Rubi Bibi in the fateful night and recovery of her dead body in the following early morning in the field near victim’s matrimonial home. Such strong suspicion also cannot take place of proof beyond reasonable doubt which is sine quo non to bring home a charge of penal offence against accused in a criminal trial.

In paragraph 14 of the judgment in Subramaniam Vs. State of Tamil Nadu and another reported in (2009) 2 C Cr LR (SC) 48. The Hon’ble Supreme Court held, “So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of the house and a death by homicide takes place it will be of the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor”. In the case under our consideration although marks of injuries on the dead body are present but it is not proved that the injuries of the deceased were inflicted in her matrimonial home and not outside. Last question was put to PW 1 during cross-examination on behalf of the accused persons as to whether PW 1 had knowledge whether Rubi Bibi went to the field at midnight before the incident to ease herself and some miscreants murdered her there to which PW 1 denied his knowledge. From the said circumstances two views are possible. One is that the accused persons in particular, the A-1 being the husband of the victim, might have killed her in house and laid the dead body in the field and another view is that the victim might have gone to the field to ease and she was killed there by some unknown miscreants. Be that as it may both the views are based on suspicion in the absence of cogent evidence.

In paragraph 13 of the judgment in Sujit Biswas Vs. State of Assam reported in (2014) 1 SCC (Cri) 677 at page- 682 Hon’ble Supreme Court referring other two judgments in Hanumant Govind Nargundkar Vs. State of M.P. reported in AIR 1952 SC 343 : 1953 Cri L J 129 and Ramesh Harijan Vs. State of U.P. reported in (2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905 held, “Suspicion, however grave it may be, cannot take place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that reasonable doubt is not an imaginary, trivial or merely probable doubt, but a fair doubt that is based upon reason and common sense”.

In the same judgment in Sujit Biswas’s case in paragraph 14 referring to another decision in the case of Kali Ram Vs. State of H.P. reported in (1973) 2 SCC 808 : 1973 SCC (Cri) 1048 : AIR 1973 SC 2773 Hon’ble Supreme Court has been pleased to quote paragraph 25 of AIR 1973 SC 2773 (supra) which we also quote in this judgment as follows:-

“25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if the two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence”.
In the impugned judgment the appellants have been found guilty due to their failure to discharge their burden under Section 106 of the Evidence Act. Section 106, Evidence Act reads as :-

“106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”. (Illustrations are not set out here).
In our opinion, in a criminal trial, Section 106, Evidence Act does not exonerate the prosecution from proving its case beyond reasonable doubt. Burden of accused generally in a criminal trial except under special statutes is to establish his defence by preponderance of probability only when prosecution proves its case adducing sufficient, cogent, unimpeachable evidence. in Joydeb Patra and Others Vs. State of West Bengal reported in (2013) 2 C Cr LR (SC) 1 Hon’ble Supreme Court held in paragraph 8, “……This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh Vs. State of Punjab, (2001) 4 SCC 375, this Court held:

“we pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of the burden to prove the guilt of the accused beyond reasonable doubt, but the Section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference”.

Similarly, in Vikramjit Singh Vs. State of Punjab (2006) 12 SCC 306, this Court reiterated :

“Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exception to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute”.
In Ranjit Singh Vs. State of Punjab reported in (2011) 2 C Cr LR (SC) 467 Hon’ble Supreme Court observed in the case of murder of a housewife in her matrimonial home that, “………It is true that the incident happened in the matrimonial home and some presumption regarding the special knowledge etc. could be raised in such a situation. But the basic onus on the prosecution is to prove its case and the onus does not change merely because the victim is the wife and the accused is the husband and the incident happened in the matrimonial home …………..”

In our considered opinion, learned Additional Sessions Judge could not appreciate the law and failed to extend the benefit of doubt in favour of accused persons and by erroneous application of the provision under Section 106 of the Indian Evidence Act against the accused persons in the impugned judgment arrived at erroneous finding that the accused persons are guilty of the offence punishable under Section 302/34 of the Indian Penal Code. As such, we hold that the impugned judgment and orders of conviction and sentence of the appellants are liable to be set aside.

As a result, this appeal succeeds. Impugned judgment and orders of conviction and sentence dated 18.05.2007 and 19.05.2007 respectively passed in Sessions Trial No. 57 (10) 05 in the 5th Fast Track Court, Malda are set aside. All the five appellants are found not guilty and acquitted. They are set at liberty. Appellant no. 1 (A-

1) be released from custody forthwith if his detention is not necessary in any other case. Other four appellants (A-2, A-3, A-4 and A-5) are discharged from their bail bonds.

A copy of this judgment along with LCR be sent to the trial Court from the department for information and necessary action.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record in compliance of usual formalities.

I agree.

(SANKAR ACHARYYA, J.,) (ANIRUDDHA BOSE, J.,)

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