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Bhrigu Ram Kumar & Ors vs The State Of West Bengal on 3 August, 2018

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)

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