IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
The Hon’ble Justice Md. Mumtaz Khan
The Hon’ble Justice Jay Sengupta
C.R.A. 527 of 2003
State of West Bengal
For the appellant : Mr. Debabrata Roy
: Mr. Prabir Majumdar… Advocates
For the State : Mr. Saibal Bapuli … Additional Public Prosecutor
: Mr. Arijit Ganguly…Advocate
Heard on : 03.05.2018, 07.05.2018 and 08.05.2018
Judgment on : 10.07.2018
Jay Sengupta, J.:
1 This appeal is directed against the judgment and order dated 28th
August, 2003 passed by the learned Additional Sessions Judge, 3rd Court,
Nadia in Session Trial No. III of May 1999: Session Case No. 18 of July,
1998, thereby finding the accused Gobinda Shil guilty for commission of
offences punishable under sections 498A and 302 of the Indian Penal Code
and sentencing him to suffer rigorous imprisonment for two years and to
pay a fine of Rs. 1000/- only, in default to suffer further imprisonment for
three months for the offence punishable under section 498A for the Indian
Penal Code and to suffer imprisonment for life and to pay a fine of Rs.
1000/-, in default to suffer further imprisonment for three months for the
offence punishable under section 302 of the Indian Penal Code, both
sentences having to run concurrently.
2. It is germane to mention that in the present case initially five accused
were arraigned in the trial including the present appellant. But, at the stage
of examination of PW14 the present appellant absconded. The Trial
continued as against the other accused namely, Dipak Shil, Gopal Shil,
Manik Shil, Sadhana Shil and Beni Madhab Shil. They were the three
brothers-in-law, the mother-in-law and the father-in-law, respectively of the
victim / deceased Barnali Shil (nee Pramanik). But, those other co-accused
were acquitted from the charges by judgment and order dated 28th April,
2001 passed by the learned Additional Session Judge, 3rd Court,
Krishnanagar, Nadia. Thereafter, the present appellant was arrested on 29th
August, 2003 and the trial resumed as against him.
The Prosecution Case
3. On 31st March 1996 at about 9.15 hours the informant Sudeshna
Pramanik (PW1) lodged a First Information Report regarding the murder of
her daughter Barnali. She stated that her daughter was given in marriage
with the appellant Gobinda Shil about 5 years ago. After a few months her
husband and other-in-laws started torturing her mentally and physically for
more dowries. The informant and others would often visit Barnali’s in-laws’
place requesting them to resolve the issue. Suddenly, on 31st March 1996 at
about 7.30 hours, they were informed that Barnali had been seriously ill.
They rushed to Barnali’s matrimonial home and found that Barnali was
lying dead on a vacant land behind the latrine. A ligature mark was found
encircling Barnali’s neck and blood was oozing out of her mouth.
4. Investigation commenced. An inquest was done by the Investigating
Officer (PW14) on 31st March 1996 at about 9.30 hours on the vacant land
of the appellant. PW 13 conducted the post mortem examination on the
dead body on 31st March 1996 at about 10.30 hours and found that the
death was due to effect of strangulation, which was ante-mortem and
homicidal in nature. After completion of investigation, a charge sheet was
submitted against the six accused including the present appellant under
sections 498A, 302 read with section 34 of the Penal Code. Charges were
framed against the appellant and those five others under sections 498A, 302
read with section 34 of the Penal Code on 11th March, 1998.
5. The prosecution examined as many as 14 witnesses to establish its
case. From the trend of cross-examination of the prosecution witnesses as
well as from the examination the accused under Section 313 of the Code,
albeit a few near admissions, the defence case appears to be the denial of
the prosecution case.
The Evidence On Record
6. Upon scanning the evidence-on-record, it is found that the victim’s
mother PW1 Sushama Pramanik, is the de-facto complainant. She is also a
witness to the inquest. She deposed that the accused used to assault her
daughter mentally and physically for more dowries. She came to know this
from her daughter. When the victim used to be driven out, she would take
shelter in her house. PW1 would take Barnali to the house of the accused
and request them to relent. Sometimes she gave some money to them. But,
they would again drive her out. In the meantime two children were born to
Barnali. About a month before her death, Barnali was again compelled to
take shelter in her mother’s house. PW1 took her back to the in-laws’ house
requesting them not to assault her. About 7/8 days before Barnali’s death,
the appellant come to PW1’s house and demanded Rs. 5000/-. She assured
to pay the sum when it would be possible. After getting information about
her daughter’s possible serious ailment, PW2 along with her brother PW3,
sister PW 4 and son PW 2 went to the house of the accused. While they were
on their way, some persons told them that Barnali was killed and was kept
behind the privy of the in-laws’ house. They rushed to the place of
occurrence and found the daughter lying dead with injuries. Thereafter they
went to the Ranaghat Police Station and PW1 lodged the First Information
Report, which was scribed by her sister PW4. PW1 also deposed that one
day the appellant had assaulted Barnali in her presence. But she could not
specify the exact date and year of the incident. In the cross, she denied that
the appellant had told her about the victim’s illicit mixing with one
7. PW2 is the victim’s brother. He too mentioned about the assault on
her sister for more dowry, as was stated by her sister. His evidence gives out
a motive behind the murder. He stated that about six months prior to her
death, Barnali had told him as well as PW3 and PW4 that the appellant had
an illicit relationship with one Chhabi Shil, who worked in their weaving
business. PW2 corroborated PW1 substantially. He too went with her mother
and found her sister lying dead with injuries behind the privy. He, like her
mother, could not find the accused in their house. PW2 was also a witness
to the inquest. In his cross, he denied that the appellant was living
separately from the other accused after marriage.
8. PW3 was a relation of the victim (‘meshomashai’). Besides supporting
the case of torture due to dowry demand, he corroborated PW2 on the
question of illicit relation between the appellant and the said Chhabi Shil, as
reported by the victim. Even he did not find the accused home after the
incident. In the cross, he denied that the accused were not staying in joint
9. PW4 was an aunt to the victim and the scribe of the first information
report. The victim had stated her about torture by the accused for more
dowries and about the illicit relationship of the appellant with Chhabi Shil.
In her cross, she denied that the present appellant was residing in the same
mess with the other co-accused.
10. PW5, a Gram Panchayat member and a neighbour of the accused,
turned hostile. He admitted his signature on a seizure list. In the cross
examination by the defence, he admitted that the present appellant was
living separately from the other accused.
11. PWs 6 and 7, both employees of the appellant, turned hostile. But, in
their respective crosses by the defence, they admitted that the present
appellant and the other accused lived in separate mess and houses.
12. PW8, another employee of the appellant, turned hostile. In the cross,
he denied having any scandal with the victim.
13. PWs 9 and 10, two purported witnesses to the seizure of the offending
rope from the pan of the privy, denied having been present at the time of
seizure, but admitted their respective signatures on the seizure list. They
were both declared hostile.
14. PW11, another neighbour of the accused, turned hostile. But, in the
cross by the defence, he indirectly admitted that the appellant was staying
in separate mess from the other accused.
15. PW12, a minor, only saw the dead body of the victim beside the privy
of the present appellant.
16. PW13 was the doctor who conducted post mortem on the dead body of
the victim on 31st March 1996. He found rigor mortis present in both upper
and lower limbs. There was a ligature mark completely encircling the neck,
more prominent on the front side than at the back side, transverse in nature
with a bifurcation at the left side below. Tongue was protruded. In his
opinion, death was due to the effect of strangulation, which was ante-
mortem and homicidal in nature.
17. PW14, an Assistant Sub-Inspector of police, only recorded the first
18. PW15 was the investigating officer of the case. He held inquest,
examined witnesses and made some seizures from near the place of
occurrence. On 7th April 1996, he arrested the appellant who made a
confessional statement leading to the recovery of the offending rope. He
submitted charge sheet. He did not inquire into any of the love affairs that
came up for consideration during investigation. PW4 stated to him that the
appellant was staying separately for 1 1/2 years. He did not examine any
child of the appellant. One Shova Shil told him that she had heard the
appellant’s voice from his house. But, she was not cited as a witness.
Submissions at the Bar
19. Mr. Prabir Majumdar, the learned Advocate appearing on behalf of the
appellant submitted at the very outset that the present appellant was
standing on the same footing as the co-accused who had earlier been
acquitted and therefore, is entitled to the benefit of such acquittal. Secondly,
he submitted that there was no evidence that the husband / appellant was
present at the place of occurrence and went to sleep with the wife / victim.
Even the ingredients of section 27 of the Evidence Act for the recovery of
rope were not satisfied. He further submitted that after about seven days of
the registration of the first information report, the same was sent to the
learned Magistrate and as such, there was a suspicion that the first
information report was ante-dated. In any event, there was no direct
evidence, but only circumstantial evidence in the instant case and that the
chain of circumstances was not complete. As regards demand for dowry, no
specific time or date was mentioned. Only in the first information report, the
informant said that he saw assault on the victim. In fact, she deposed new
facts after about three years. PW2 also improved upon his statement as
would be evident from the cross examination. In fact, he could not even
remember a few things as would be evident from the deposition of the
investigating officer. The learned Advocate also submitted that on facts, it
was quite improbable that the latrine would remain unused for so long and
offending rope would so easily be present there to be recovered after passage
of quite some time. Even the rope was not placed before the post-mortem
doctor for his opinion about whether the crime could have been committed
with it. The examination of the accused under section 313 of the Code was
defective too. The question number 5 was bad as there was no evidence that
the rope was made of jute so as to warrant a question with such
20. Mr. Saibal Bapuli, the learned Additional Public Prosecutor submitted
that as per PWs 1, 2, 3 and 4, the accused lived separately with the victim.
The appellant absconded immediately after the occurrence and then again at
the trial stage. PW1 stated about the mental and physical torture. PW2
supported the first information report, but there was a departure from the
first information report as regards specific demand for dowry. PW3
supported PWs 1 and 2 and PW4, in turn, supported PWs 1, 2 and 3.
Moreover, hostile witnesses did not necessarily render the prosecution case
fatal. PW13, the post-mortem doctor, clearly supported the prosecution case
and termed the death as homicidal. The investigating officer also deposed
that the couple was staying in a separate mess.
21. After conclusion of arguments, the learned Advocates for both the
parties filed copies of judgments supporting their respective cases. The
appellant relied on (i) Bahadul @ Ghanshyam Pradhan vs The State of
Orissa, AIR 1979 SC 1262 at paragraph 4; (ii) Biswaranjan Midhya
Chowdhuryvs The State of West Bengal, (2016) 1 CCrLR (Cal) 473 at
paragraphs 11 and 12; (iii) Nesar Ahmed another vs The State of Bihar,
AIR 2001 SC 2416 at paragraphs 9 and 10; (iv) Lallu Manjhi another vs
The State of Jharkhand, 2003 SCC (Cri) 544 at paragraph 14. On the other
hand, the State relied on (i) SurajitSarkarvs The State of West Bengal, (2012)
12 JT 138 at paragraph 54; (ii) Mallikarjun Ningappa Ragativs The State of
Karnataka, (2008) 4 KarLJ 509 at paragraph 34; (iii) M.Saravana @ K.
D.Sravanavs The State of Karnataka, (2012) 6 JT 565 at paragraph 9.
22. I have heard the submissions of both the parties, gone through the
evidence and other materials on record and perused the decisions cited. I
now venture to discuss the questions of facts and law and thus, try to cull
them for arriving at a just decision.
23. The prosecution case is based purely on circumstantial evidence.
Therefore, at the outset it is necessary to find out whether the chain of
circumstances pointing towards the guilt of the appellant is complete or not.
24. The precursor to the events is the motive given by PWs 2, 3 and 4 that
there was trouble brewing between the couple – the victim and the appellant,
over the illicit relationship between the appellant and his staff one Chhabi
Shil. There is no strong denial by the defence on this score. The other
inkling of a motive vis-à-vis the illicit relationship between the victim and
PW8 is provided by the investigating officer PW15 coupled with the denial of
any scandalous relation made by the hostile witness PW8 himself. Even if
one dismisses the second of the twin pronged motive as insufficient in terms
of quality evidence, one has to accept the first part that is to say, the
evidence regarding appellant’s indiscretions as sufficient motive for murder.
25. The most important coupling in the chain of circumstances is the
presence of the accused / appellant at the place of occurrence. The place of
occurrence is a place behind the appellant’s privy. It is predominantly
evinced from depositions of PWs 1, 2, 3 and 4 that the couple stayed
together in the house of the appellant. The privy or the latrine in question
belonged to the appellant.
26. PW4 and albeit hostile, PWs 5, 6, 7 and 11 admitted in their cross
examinations that the appellant was living in a separate mess from the other
accused. In Ramkrishna vs The State of Maharashtra, (2007) 13 SCC 525,
the Hon’ble Apex Court held that if found credible, evidence of a hostile
witness can very well be relied upon by a party. The reliance of the learned
Advocate for the State on M. Sarvana’s Case (supra) in this regard is also
27. It was within the special knowledge of the appellant as to how his
wife’s dead body came to lie at a place that was under his control and
supervision. Section 106 of the Evidence Act would squarely applies here.
But, the present appellant neither came up with any explanation in this
regard nor could prove any alibi. The Hon’ble Supreme Court in Ganeshlal
vs The State of Maharashtra, (1992) 3 SCC 106 held that “… When the
death had occurred in their custody the appellant is under an obligation in
Section 313 CrPC statement at least to give a plausible explanation for the
cause of her death. No such attempt was even made excepting denying the
prosecution case. These facts completely are inconsistent with the
innocence, but consistent with the hypothesis that the appellant is a prime
accused in the commission of gruesome murder of his wife…”.
28. The reliance of the learned Advocate of the appellant upon the ratio in
Biswaranjan Midhya Chowdhury’s Case (supra) does not help as the facts in
the two cases are quite distinct. In that case, the investigating officer was
crossed on the point of investigation and he admitted that he had not made
any enquiry into the fact whether the accused therein was in his house at
the relevant point. Here, the case is not so.
29. Immediately after the fatal incident, the appellant was found
absconding from the scene of occurrence. He again absconded for a good
many years during trial. True, a mere absconding of the accused need not
necessarily implicate him any further in a case. ‘Even an innocent man may
escape in order to avoid arrest’. It is settled law that absconding is relevant
evidence, but its value depends on the attending circumstances.
Nonetheless, it may act as a link in the chain of circumstances against the
accused, especially if the same remains unexplained as in the instant case.
A subsequent attempt to evade the due process of law at the trial stage has
only aggravated the already incriminating circumstance.
30. It is abundantly clear that the dead body of the victim Barnali was
found behind the appellant’s privy. Several witnesses saw it. It is further
clear from the evidence of the post mortem doctor PW13 that the victim was
murdered by strangulation.
31. Now, so far as the recovery of the offending rope is concerned, the
same was seized by the investigating officer from inside the pan of the
appellant’s privy purportedly at the appellant’s instance. Although hostile,
PWs 9 and 10 admitted their respective signatures on the seizure list for the
rope. The signature of the accused was also present in the said seizure list.
At the same time it is true that no leading statement of the appellant was
placed on record as regards the recovery of the rope. This cannot be treated
as a recovery within the meaning of section 27 of the Evidence Act. But, the
conduct of the appellant may very well be treated as a circumstance relevant
under section 8 of the Evidence Act. The Hon’ble Supreme Court in A. N.
Venkatesh anothervs The State of Karnataka, AIR 2005 SC 3809 held that
“… The evidence of the circumstance, simpliciter, that the accused pointed
out to the police officer, the place where the dead body of the kidnapped boy
was found and on their pointing out the body was exhumed, would be
admissible as conduct under Section 8 irrespective of the fact whether the
statement made by the accused contemporaneously with or antecedent to
such conduct falls within the purview of Section 27 or not as held by this
Court in Prakash Chand v. State (AIR 1979 SC 400). Even if we hold that
the disclosure statement that made by the accused appellants (Ex. P14 and
P15) is not admissible under Section 27 of the Evidence Act, still it is
relevant under Section 8…”
32. So far as the decision relied upon by the learned Advocate for the
appellant in Bahadul’s Case (supra) is concerned, the facts are clearly
distinguishable from the instant case. There a recovery was made from
beneath a cot and there was nothing to show that the accused had
concealed the article in a place which was known to him alone. This cannot
be said of the present recovery of a rope from inside the pan of the
appellant’s privy. The ratio is thus distinguishable in the present set of facts.
33. On the other hand, the decision in Mallikarjun Ningappa Ragati’s
Case (supra) on the veracity of recovery of an article by an investigating
officer when the ‘Panch’ witnesses turn hostile, as relied upon by the learned
Additional Public Prosecutor, is quite distinguishable on facts.
34. The appellant’s contention that the rope could not have remained
there for so long and that the privy could not have remained unused for a
week is without any basis. Rather, since the appellant was absconding, it
was most likely that his privy would remain unused for such period.
35. Quite interestingly, in his answer to question no 4 under section 313
of the Code, the appellant answered that “Sir, when blood was oozing out,
she died”. This implies that at least the appellant was present there when
the victim died. Then he absconded. So, it was for him to explain all these
circumstances appearing against him, which he failed to. Although his near
admissions in his examination under section 313, strictly speaking, may not
be used against him, yet his failure to explain such incriminating
circumstances may act as a link to the overall chain of circumstances.
36. The chain of circumstances is thus complete and is indubitably
pointing towards the guilt of the appellant on the question of murder of the
victim. Nesar Ahmed’s Case (supra) as referred to by the learned Advocate
for the appellant lays down a well-established principle of law and quite
commensurately, each and every circumstance as discussed above is found
to have been duly proved here.
37. As regards the other relevant points agitated, it may be germane
mention in this chronology that a mere delay in sending the first information
report to the learned Magistrate may not be fatal to the prosecution case. It
is more so when nothing is placed on record to show any concerted attempt
from any quarter to falsely implicate an accused.
38. On the question of non-examination of the two children of the victim,
one must admit that this is a flaw in the investigation of the case although
one wonders what those children, evidently below the age of 5 years, would
have deposed. There were other defects too. For instance, the witness Shova
Shil who, as per PW15, heard the appellant’s voice from his house was not
examined. But, in view of the other evidence on record as discussed earlier,
such non-examination is not fatal to the prosecution case.
39. Surajit Sarkar’s Case (supra) as relied upon by the learned Additional
Public Prosecutor lays down an established principle that a defective
investigation may not always be fatal to the prosecution case.
40. The learned Advocate for the appellant relied on Lallu Majhi’s Case
(supra) and contended that the fact that accused was absconding was not
put to him in his examination under section 313 of the Code. Lallu Manjhi’s
Case (supra) broadly reiterated that circumstances not put to the accused in
examination under section 313 of the Code cannot be used against him.
But, the facts are quite different in the two cases. There were several
infirmities in the prosecution evidence too in that case.
41. In the present case, the appellant had all through, except for an
incriminating hiatus, participated in his trial. He knew the case well and
was well aware of him absconding as he had been the performer of such act.
So, there was no prejudice caused to the appellant in the instant case by not
posing such question regarding him going absconding. Every omission to
put a question does not amount to prejudice. In this regard, reliance is
placed on the ratio laid down by the Hon’ble Apex Court in Alister Anthony
Pareiravs The State of Maharashtra, AIR 2012 SC 3802. The relevant
portions are quoted below:
“59. The High Court in this regard held as under:
“29………..The salutary provision of Section 313 of the Code have been
fairly, or at least substantially, complied with by the trial court, in the facts
and circumstances of this case. The real purpose of putting the accused at
notice of the incriminating circumstances and requiring him to offer
explanation, if he so desires, has been fully satisfied in the present case.
During the entire trial, copies of the documents were apparently supplied to
the accused, even prior to the framing of the charge. After such charge was
framed, all the witnesses were examined in the presence of the accused and
even limited questions regarding incriminating material put by the Court to
the accused in his statement under Section 313 of the Code shows that the
entire prosecution case along with different exhibits was put to the accused.
He in fact did not deny the suggestions that the witnesses had been
examined in his presence and he was aware about the contents of their
statements. All this essentially would lead to only one conclusion that the
contention raised on behalf of the accused in this regard deserves to be
rejected. While rejecting this contention we would also observe that the
admission or confession of the accused in his statement under Section 313
of the Code, in so far as it provides support or even links to, or aids the case
of the prosecution proved on record can also be looked into by the Court in
arriving at its final conclusion. It will be more so when explanation in the
form of answers given by the accused under Section 313 of the Code are
apparently untrue and also when no cross-examination of the crucial
prosecution witnesses was conducted on this line.”
We are in agreement with the above view of the High Court.”
42. Although on the question of the offence under section 302 of the Penal
Code, sufficient evidence have been adduced against the present appellant
to distinguish his case from that of the other co-accused who had earlier
been acquitted, on the question of the offence under section 498A of the
Penal Code, the evidence seems to be quite similar and inchoate against him
as against the other accused. PW1’s claim of a single instance of assault by
the appellant on the victim is also devoid of specifics.
43. Besides the other evidence pointing towards the guilt of the present
appellant like his motive, him absconding twice, recovery of article, a prime
fact that distinguishes his case from that of the other accused is the fact
that he was staying with his wife in a separate mess.
44. In view of the above discussions, I hold that the prosecution case for
the murder of the victim has been proved beyond any reasonable doubt as
against the present appellant. But, the case of inflicting cruelty upon the
victim as contemplated under section 498A of the Penal Code could not be
proved against him. Therefore, I uphold the conviction and sentence of the
appellant under section 302 of the Penal Code as ordained in the judgment
and order dated 28th August, 2003 passed by the learned Additional
Sessions Judge, 3rd Court, Nadia in Session Trial No. III of May 1999:
Session Case No. 18 of July, 1998, while I set aside his conviction and
sentence passed under section 498A of the Penal Code vide the said order.
45. The appeal is thus partly allowed. A copy of the judgment along with
the Lower Court Records may be sent down to the learned Trial Court
forthwith for information and necessary action.
46. Urgent certified photocopies of this judgment may be delivered to the
learned Advocates of the parties, if applied for, upon compliance of all
(Jay Sengupta, J)
(Md. Mumtaz Khan, J)