IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon’ble Justice Md. Mumtaz Khan
And
The Hon’ble Justice Jay Sengupta
C.R.A. 559 of 2004
Bhrigu Ram Kumar Ors
Versus
The State of West Bengal
For the Appellants : Mr. Pawan Kumar Gupta
… Amicus Curiae
For the State : Mr. Arun Kumar Maity
…Additional Public Prosecutor
Ms. Zareen Khan
… Advocates
Heard on : 10.05.2018
11.05.2018
Judgment on : 03.08.2018
Jay Sengupta, J.:
1.
This appeal is directed against the judgement and order of conviction
dated 29th June, 2004 and sentence dated 30th June, 2004 passed by the
learned Additional Session Judge, Fast Track Court No. 2 Purulia in Session
Trial No. 48 of 2003; Session Case No. 97 of 2003, thereby convicting the
appellants under Section 302 read with Section 34 of the Indian Penal Code
and sentencing each of them to suffer imprisonment for life and to pay a fine
of Rs. 5000/-, in default to suffer further two years’ simple imprisonment
and further convicting the appellant under Section 498A of the Indian Penal
Code and sentencing each of them to suffer simple imprisonment for four
months and to pay a fine of Rs. 1000/-, in default to suffer further simple
imprisonment for one month. While the grand mother-in-law of the victim
was acquitted from a charge under Section 302 read with Section 34 of the
Indian Penal Code, she was convicted for committing an offence under
Section 498A of the Indian Penal Code and sentenced to suffer simple
imprisonments for four months and to pay a fine of Rs. 1000/-, in default to
suffer simple imprisonment for one month. The appellant No. 1 is the
husband of the victim / deceased in this case and the appellant Nos. 2 and
3 are her father-in-law and mother-in-law, respectively.
2. On 20th March, 1998 at about 11.35 hours PW 4, the de facto
complainant / father of the victim / deceased lodged a First Information
Report with the Jhaldha Police Station that soon after the marriage of her 19
years old daughter with the appellant No. 1, the husband and the other-in-
laws started torturing her. In fact, on 19.03.1998 the victim had come back
to his house crying and alleging physical assault by the accused. But,
sometime later the appellant No. 2 had come and taken her back to the
matrimonial home. It was further alleged that at about 7 A.M in the next
morning the victim’s grand mother-in-law Fulmoni Kumar came to that
house to intimate that the appellant No. 2 had asked him to come to his
house. When he went there he did not find anyone home. There were marks
of some disturbance. After entering the house he found that his daughter
Kajala Kumar was lying dead with a cut mark of “Bhojali” on her throat and
blood spilt everywhere. He became certain that the victim’s husband and
other-in-laws had murdered her.
3. Investigation began. An inquest was held on 20.03.1998 at about
13.15 hours at the place where the body was found. A post mortem was
conducted on the dead body of the victim on the same date i.e, on
21.03.1998 at about 12.30 hours by PW 3. The cause of death given was
due to shock haemorrhage associated for spinal cord injury which was ante
mortem and homicidal in nature. The injury was caused by heavy sharp
cutting weapon. Charges were framed on 22.08.2003.
4. The prosecution examined as many as 14 witnesses to establish case.
From the trend of cross-examination of the prosecution witnesses as well as
the examination of the accused under Section 313 of the Code, the defence
case appears to be the denial of the prosecution case.
5. From a careful reading of the evidence-on-record it is found that the
petitioner No. 1 was a neighbour of the accused who turned hostile. PW2 is
a relation of the accused who too turned hostile. PW3 was the doctor who
conducted the post mortem examination. He mentioned the details of the
injuries and noted that rigor morits was absent in the body. He opined that
death was due to shock and haemorrhage associated with ante-mortem and
homicidal spinal chord injury. A carbon copy of the Post Mortem Report was
exhibited, which was objected to. In the cross-examination PW 3 stated that
he did not know the whereabouts of the original Post Mortem Report. He
admitted that decomposition of the body had started and that the time of
death would be within 36 to 48 hours from the time of the Post Mortem
Examination. PW 4 was the father of the victim and the de-facto
complainant. He deposed that all the accused used to torture the victim
regarding domestic work. On the penultimate day the victim came
complaining in the morning. But, later the appellant No. 2 took her back.
PW 4 went to see her and told that he would be taking her back the next
day. At this, the appellant No. 3/ mother-in-law objected. PW 4 supported
his First Information Report. He was a witness to the Inquest and seizure.
PW 5 was an uncle of the victim. He deposed that the accused were absent
from their house after the crime. He said that subsequently the villagers had
apprehended the appellant No. 2/ father-in-law. He deposed that they
reached the place first and other persons from the neighbourhood came
later. PW 6 was the Police Officer who received the complaint of PW 4. PW7
was an uncle of the victim. He deposed about the cruelty and assault meted
out by the accused persons to his niece Kajala, as was reported by her. In
fact in the morning of 19.03.1988 she had complained to him about the
torture last night. PW8 was the mother of the victim. She deposed about her
daughter narrating the instance of assault by the accused persons to her.
She corroborated the version of PW 4 that Kajala had come to their house in
tears and narrated about the assault by the accused persons. After about
half an hour, her father-in-law came and took her back. PW9 was the
victim’s brother. He too deposed about the torture of the victim by the
accused persons as reported by her. He also corroborated the deposition of
the PW’s 4 and 10 that the appellant No. 1 came and took her back on the
day before she was found dead. But, in the cross-examination he could not
remember what he stated to the police. PW 10, an independent witness, was
a co-villager of the accused and the victim. He was a post occurrence
witness. He was also a signatory to the inquest report. Except the accused
Fulmoni Kumar, he could not find any of the other accused present in their
house immediately after the occurrence. PW 11 was a relation of the victim.
He supported the prosecution, but admitted in the cross that he was
narrating the incidents for the first time in Court. PW 12 was an
independent witness and a neighbour of the accused as well as the victim.
He was a post occurrence witness and the scribe of the FIR. He wrote the
FIR in a tea stall near the police station. Villagers apprehended the appellant
No. 2 and brought him. PW 13 was the second Investigating Officer who
conducted bulk of the investigation. In the examination under Section 313
of the Code, the appellants admitted that the victim and they used to stay
together in the same house.
6. Mr. Pawan Kumar Gupta, the learned Amicus appointed by this Court
to defend the present appellants, submitted that the impugned judgement
and order of conviction and sentence cannot be sustained in the eye of law.
He submitted that in this case first the signature of the scribe PW 12 was
absent in the FIR. He also contended that the original copies of the Inquest
Report and the Post Mortem Report were not be exhibited in the case and as
such cannot be relied upon. He submitted that the offending weapon could
not be seized and even the blood stained earth and apparels were not sent to
the FSL. Far from there being any direct evidence, even no last seen together
evidence could be adduced by the prosecution. Moreover, the prosecution
witnesses were all related to the victim in some manner, except one. He
submitted that most of the witnesses exaggerated and some deposed for the
first time in court. According to the learned Amicus, motive for murder is
missing in this case. According to him, even the timing as indicated by the
Post Mortem Report did not match with the sequence of evidence. He further
submitted that abscondence of the accused, if at all proved, may not
necessarily be used against the accused for implicating them in the crime.
On this he relied on the decision in SK. Yusuf Vs. State of West Bengal,
(2011) 3 SCC (Cri) 620. The learned Amicus also contended that there were
certain norms for invoking Section 106 of the Evidence Act and the same
cannot be used in indiscriminately to procure conviction when no other
evidence was forthcoming. On this issue he relied on Joydeb Patra Ors Vs.
State of West Bengal, (2014) 12 SCC 444. The learned Advocate further
submitted that the examination of the accused under Section 313 of the
Code need not always go against him. He relied on Sujit Biswas Vs. State of
Assam, (2014) 1 SCC (Cri) 1677 on this. According to him, an accused is a
privileged liar. The learned Advocate contended that there was practically no
evidence on record that the present appellants committed the crime. He
submitted that suspicion, however strong, cannot substitute proof.
7. Mr. Arun Kumar Maity, the learned Additional Public Prosecutor
appearing on behalf of the State supported the conviction and sentence. He
placed much reliance of the evidence adduced by PWs 4, 5, 7, 8, 9, 10 and
12 out of whom PWs 10 and 12 were independent witnesses. He submitted
that PW 4 gave out clear allegations of torture just before the date of
incident. PW 7 corroborated him. PW 11, in turn, corroborated the other
witnesses. He submitted that the medical evidence clearly supported the
prosecution case. He submitted that the place of occurrence was not
disputed and there was sufficient evidence on that. The father-in-law had
taken back the victim. This showed that he exercised certain decree of
control. In the entire scheme of things, it was incumbent upon the
appellants to have explained the facts under Section 313 of the Code and an
application of Section 106 of the Evidence Act would not be unwarranted.
He relied on the decisions reported in (i) Ganesh Lal Vs. State of
Maharashtra, (1992) 3 SCC 106 and (ii) Trimukh Maroti Kirkan Vs. State of
Maharashtra, (2006) 10 SCC 681. The learned Advocate submitted that the
appellant No. 1 in fact admitted his presence at the house during his cross-
examination under Section 313 of the Code. He further submitted that the
abscondence of the accused immediately after the occurrence would also be
a fact relevant under Section 8 of the Evidence Act.
8. We have heard the submissions of the learned Advocates for the
appellant and the State and perused the evidence and materials on record
and went through the decisions relied upon the learned Advocates
9. First, the purported absence of signature of the scribe of the FIR
cannot, by any stretch of imagination, cast a shadow of doubt on the
authenticity of the FIR when the de facto complainant had put his signature
on it, proved it and the scribe himself deposed in Court that he had written
it.
10. As regards exhibiting carbon copies of Inquest Report and First
Information Report, the same are very much admissible in evidence. These
are not mere secondary evidence, but primary evidence being prepared in
the same process as contemplated under Section 62 of the Evidence Act. On
this, a reference may be made to the ratio laid down by the Hon’ble Supreme
Court in Prithi Chand Vs. State of Himachal Pradesh, (1989) 1 SCC 432.
11. The non-seizure of the offending weapon is not uncommon in cases
where the accused absconded for a considerable period after committing the
offence. This may not be fatal to the prosecution case if there are other
cogent materials to support the same.
12. The non-sending of the blood-stained earth collected from the place of
occurrence to the FSL is indeed a lapse in the investigation of the case. But,
here the place of occurrence is not in dispute in view of the evidence of other
witnesses. As such, the said irregularity is not detrimental to the
prosecution case.
13. True, the present case is based on circumstantial evidence. Therefore,
one needs to carefully scrutinise the evidence and materials on record to see
whether the chain of circumstances is complete and indubitably point
towards the guilt of the accused.
14. As regards the chain of circumstances, the prosecution rightly relied
on the evidence of PWs 4, 5, 7, 8, 9, 10 and 12 out of whom PWs 10 and 12
were independent witnesses. This is not to say that the evidence of related
witnesses would necessarily be rated any lower than others’ as they may
actually be the most natural witnesses. PW 4 deposed about torture on the
victim just before the date of occurrence. This was corroborated by PWs 7
and 11. Ample evidence was adduced regarding the appellant No. 2 taking
back the victim before the occurrence. It is well evinced that the appellants
were staying together with the victim. When PW 4 came to the victim after
she was taken back, he even meet the appellant No. 2 there. At about or
immediately after the occurrence, Fulmoni came and asked the informant to
meet the appellant No. 2. This would weigh in favour of the accused Fulmoni
as regards the charge of murder as her absence from the place of occurrence
at the prime moment was thus established. Probably, she did not even know
what the appellants had finally done to the victim. The appellants were
found absconding. PW 5 and PW 12 deposed that they found the appellant
No. 2 being brought apprehended by the villagers after the incident.
15. In the present case, the abscondence of the accused / appellants
immediately after the occurrence does act as an additional link to the chain
of circumstances. Here, the accused / appellants fled away from the scene
where the deadbody of the victim lay in a cot with gruesome injuries and
blood spilt all around. In fact, the villagers somehow managed to grab the
appellant No. 2 subsequently. This was not a case of mere abscondence, but
a case of abscondence from one’s own house where the corpus delicti lay
unattended. Sk. Yousuf’s Case (Supra) is quite distinguishable on facts.
16. The medical evidence clearly supported the prosecution case. The
contention of the appellants on the finding that the death took place within
36 to 48 hours of the post mortem (held on 21.03.1988 at 12.30 hours) does
not contradict the prosecution version. The death, according to the
prosecution case, would have taken place any time between the evening of
19.03.1988 and the morning of 20.03.1998. In any event, an exact
pinpointing of the time of death with minute precision is perhaps not yet
achievable.
17. In addition to the complete chain of circumstances, the invoking of
Section 106 of Evidence Act vis-a-vis the presence of the accused and the
victim in the house prior to the incident, the non-explanation of the accused
about the finding of the dead body of the victim in their house with serious
injuries and the factum of the accused remaining absconding after the
incident does not appear to be unwarranted in the facts and circumstances
of the case. The reliance of the learned Advocate for the State on Ganesh Lal
(supra) and Trimukh Maroti Kirkan (supra) in this regard is quite
appropriate. In Trimukh Maroti Kirkan it was held : ” Where an offence like
murder is committed in secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon the prosecution, but the
nature and amount of evidence to be led by it to establish the charge cannot
be of the same degree as is required in other cases of circumstantial
evidence. The burden would be of a comparatively lighter character. In view
of Section 106 of the Evidence Act there will be a corresponding burden of
the inmates of the house to give a cogent explanation as to how the crime
was committed. The inmates of the house cannot get away by simply
keeping quiet and offering no explanation on the supported premises that
the burden to establish its case lies entirely upon the prosecution and there
is no duty at all on the accused to offer any explanation”. On the contrary,
on facts, Joydeb Patra (supra) is quite distinguishable. There, after taking
food the deceased fell ill and died a little later. Conviction was solely based
on the evidence of the post mortem doctor. The Post Mortem Report did not
state the cause of death. No poison was detected in the viscera. The evidence
of the post mortem doctor given after two years was not believed.
18. The ratio of Sujit Biswas (supra) also does not help the appellants any
bit. The facts are clearly distinguishable. In that case, no dead body of a
relation was found in the house of the accused who had been admittedly
staying there with the victim.
19. The circumstances, therefore, unerringly point towards the guilt of the
appellants for the commission of murder of the victim. But, the evidence is
clearly insufficient so as to sustain a charge under Section 498A.
20. In view of the above discussions, we hold that the prosecution case
under Section 302 read with Section 34 of the Penal Code has been proved
beyond all reasonable doubts as against the appellants. But, the case of
inflicting cruelty upon the victim as contemplated under Section 498A of the
Penal Code could not be proved against them. Therefore, we uphold the
conviction and sentence under Section 302 read with Section 34 of the Penal
Code imposed by the learned Trial Court upon the appellants while we set
aside the conviction and sentence passed under Section 498A read with
Section 34 of the Penal Code.
21. A copy of the judgement along with the lower Court records may be
sent down to the learned Trial Court forthwith for information and necessary
action.
22. Urgent Photostat copies of this judgement may be delivered to the
learned Advocates of the parties, if applied for, upon compliance of all
formalities.
(Jay Sengupta, J)
I agree
(Md. Mumtaz Khan, J)