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Gobinda Shil vs State Of West Bengal on 10 July, 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. 527 of 2003

Gobinda Shil

Versus

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

Krishnapada.

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

mess.

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

information report.

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

qualification.

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.

Reasoning

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

quite apt.

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

formalities.

(Jay Sengupta, J)

I agree

(Md. Mumtaz Khan, J)

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