Calcutta High Court Gopal Majhi And Three Ors.-vs-The State Of West Bengal on 24 April, 1991
Equivalent citations:(1992) 1 CALLT 116 HC
Author: M Mallick
Bench: M Mallick, M N Roy
Monoranjan Mallick, J.
1. This is an appeal filed by the four appellants who have been convicted Under Sections 302/34 I.P.C. and sentenced to imprisonment for life and also to pay a fine of Rs. 2000/- each in default to suffer further R.I. for a period of six months by the Ld. Addl. Sessions Judge, 6th Court, Midnapore in S.T. Case No. VIII of November, 1989.
2. The prosecution case is as follows :-
P.W. 1, Nemai Charan Bera lodged an F.I.R. to Debra P.S. in the District of Midnapore on 20.9.87 alleging that his niece Rekharani was married to accused Gopal Majhi, son of Late accused Balai Majhi and Srimati Majhi, about six years prior to the lodging of the above information. Sometime after such marriage, the parents-in-law and the husband of Rekharani used to torture her both physically and mentally. Tuhin Kanti Bera, the younger brother of Rekharani had gone to the house of Rekharani’s father-in-law to witness a fair which was going at that Village, On that very day on which the F.I.R. was lodged Tuhin rushed to their house at about 8-30 A.M. and reported that Rekharani was being assaulted by Gopal her husband after a quarrel and that her mother-in-law, sister-in-law and her brother-in-law namely the husband of the sister-in-law were also quarrelling with Rekharani. On receiving the said information the informant along with her elder brother Badal Chandra Bera (P.W.12), father of Rekharani rushed to the house of her father-in-law. On going there they, however, found that the assault had stopped. But they came to learn from Rekharani that her husband assaulted her with a piece of wood without any reason. On being assured that there would be no further quarrel or assault they returned home. At about 1 p.m. Gobinda, a younger brother of the accused Gopal came to their house and reported that Rekharani had committed suicide by setting fire to her body. On getting this information the informant rushed to the house of father-in-law of Rekharani. On going there they found the dead body of Rekharani lying on the first floor verandah of the house with face down. The wearing apparels and practically the entire body were charred. The informant found that the villagers as well as the people from the adjoining villages had assembled there. The people assembled there interrogated the accused persons namely, Gopal, his mother Srimati, his sister Karuna-bala and Shyamsundar, the husband of Karunabala. AH of them confessed before the people assembled there that being perturbed by the unhappy incident that took place in the morning Rekharani went to the first floor room and was lying on a cot. The accused Gopal being infuriated by her conduct again started assaulting her and Rekharani ran out of the room came to the verandah in front of the said room and fell unconscious. Then the accused Gopal tied her hands with a rope and accused Shyamsundar tied her feet with another rope. The accused Srimati and Karuna wrapped a synthetic saree on the person of Rekharani, poured kerosene oil and set her on fire.
3. The F.I.R. also disclosed that after that the neighbours came and tried to extinguish the fire by pouring water but in the meantime Rekharani had already expired. On the basis of the above information police started investigation, sent the dead body for post mortem examination and on investigation submitted charge-sheet against the accused persons Under Sections 302/34 and also other Sections.
4. On the case being committed to the Court of Sessions, the learned Judge on consideration of the materials on record have framed charge against these four accused-appellants Under Sections 302/34 I.P.C. and Under Section 201/34 and 498A I.P.C. and against the accused Balai Majhi Under Sections 302/109 I.P.C.
5. In order to prove the charge against the accused persons the prosecution has in all examined twenty witnesses. The F.I.R., Seizure list etc. have been proved as documentary evidence.
6. The defence case, has made out from the suggestions given to the different witnesses in cross-examination as well as from the statements of the accused persons on being examined Under Section 313 Cr. P.C. is that while Rekharani was preparing Kajal with the help of a lamp her georgette saree accidentally caught fire and she was burnt to death and none of the accused persons was in any way responsible for her death.
7. The learned Trial Judge on considering the prosecution and on hearing the arguments made by the Ld. Public Prosecutor and the defence Advocate has found these four appellants guilty Under Sections 302/34 I.P.C. but acquitted them of the charge Under Sections 201/34 and 498A I.P.C. and also acquitted accused Balai Majhi of the charge Under Sections 302/109 I.P.C. On convicting the accused Under Sections 302/34 I.P.C. and upon hearing the accused persons on the question of sentence the Ld. Trial Judge sentenced each of them to imprisonment for life and also a fine of Rs. 2000/- each and in default to six months R.I. each.
8. Being aggrieved by and dissatisfied with the above conviction and sentence the appellants have preferred this appeal.
It is submitted on behalf of the appellants that the conviction and sentence being bad and illegal is liable to be set aside, that the prosecution sought to adduce two types of evidence to prove the guilt of the accused, namely, the alleged confession of the accused and the circumstantial evidence, but the Ld. Court below failed to take into consideration that neither the circumstantial evidence was complete or conclusive nor was the alleged confession worthy of credence and was also inadmissible in evidence, that from the evidence of the witnesses there is no narration of confessional statement regarding the incident and the guilt of the four accused persons excepting that of Gopal and that the statement allegedly made by Gopal was contrary to the evidence of the witnesses, that the Learned Trial Judge ought to have held that the confessional statement if any, made by the accused was the result of threat and coercion of the members of a violent mob which had encircled the accused persons just after the occurrence and even assaulted them physically, that neither accused Shyamsundar nor the accused Karunabala was arrested by ponce from the alleged place of occurrence but from their own house far off from the alleged place of occurrence on the next day of the incident and as such, it was not possible for them to make any such alleged confession as stated by the witnesses, that the Ld. Trial Judge should not have placed any reliance on the so-called confession which were not only cryptic but also contradictory in nature, that the Ld. Trial Judge has failed to appreciate that the principles enunciated in the decisions cited by the defence regarding extra-judical confession is applicable in the facts and circumstances of the present case and the Ld. Trial Judge misconceived the said principle and mis-directed himself in trying to distinguish the present case from the facts of the reported decisions that the acquittal of the accused persons of the charge Under Section 498A I.P.C. cuts at the very root of the prosecution case and it goes to show that the accused persons had no motive or reason to commit the murder and that the facts and circumstances appearing in the evidence would go to show that the death was due to accidental fire and that an attempt was made by the accused persons to save her life by extinguishing the fire.
9. It is also contended that the examination of the appellant Under Section 313 Cr. P.C. was defective and prejudical as it did not offer to the appellants full and complete opportunity of explaining away the facts and circumstances allegedly appearing against them from evidence.
10. The Learned Public Prosecutor, High Court has contested the appeal on behalf of the State. It is contended that regard being had to the circumstances in which the dead body was found as well as the report of the post mortem Doctor the death of Rekharani being either accidental or suicidal have been completely ruled out that the fact that the death was nothing but homicidal and the accused persons being the husband, mother-in-law, brother-in-law and sister-in-law and the place where the death had taken place render sufficient circumstantial evidence regarding the complicity of the accused persons in the offence of murder and that these incriminatory circumstances together with the extra-judicial confession made by the accused persons before the villagers immediately after the incident were sufficient proof that it is the accused persons who committed the murder of Rekharani in furtherance of the common intention of them all firstly by assaulting her and then when she became unconscious as a result of such assault setting her with fire and the Ld. Trial Judge was perfectly justified in holding that the prosecution has been able’ to bring the charge Under Sections 302/34 I.P.C. against all the accused persons beyond all reasonable doubt and in the circumstances the conviction and sentence passed against the accused appellants should not be interfered within appeal.
11. The first point for decision is whether the deceased Rekharani died on 20.9.87 accidentally or whether she was murdered. The defence as is sought to be made out through the cross-examination of some other prosecution witnesses and also through the evidence of some of the prosecution witnesses who have been declared hostile as well as the statement made by the accused Under Section 313 Cr. P.C. is that Rekharani at about the time of the occurrence was preparing Kajal with the help of a lamp and her georgette saree accidentally caught fire and even though her mother-in-law and her brothers-in-law who were at about that time inside the residence tried to extinguish the fire by covering her with quilt and the neighbours also were trying to extinguish the fire by pouring water but Rekharani was burnt to death.
12. The Learned Public Prosecutor appearing for the State has urged before us that the Learned Trial Judge rightly held that the death of Rekharani was neither accidental nor suicidal but homicidal. He points out that the evidence of the Doctor who held post mortem examination would clearly belie the story of the appellants that the death of Rekharani was a result of a fire which was accidental. He draws our attention to the evidence of Doctor who held post mortem examination namely P.W. 13, Dr. Madan Mohan Das who found not only that the body of the victim was severely burnt but on dissection he found clotted blood present in the peritonial cavity and also found lacerated injury over right lobe of the liver about 2″ x 1″. As the whole body was completely charred, no external injury could be detected, Mr. Mukherjee points out that the death, according to the Doctor, was due to shock and haemorrhage due to liver injury and also as the entire body was burnt which was ante mortem in nature. He also points out that the Doctor has clearly opined that the liver injury found was sufficient to cause death in ordinary course of nature and the burn injury by itself was also sufficient to cause the death in the ordinary course of nature. On considering all the relevant evidence including that of P.W. 13 Dr. Madan Mohan Das, we are of the view that the defence suggestion as to how the victim could get liver injury is too improbable to accept. In the circumstances we are in-full agreement with the submission made by the Learned Public Prosecutor that the prosecution has succeeded in proving that the, death of Rekharani was neither accidental nor suicidal but it was homicidal. So we are convinced that Rekharani was murdered. The Learned Trial Judge has convicted the accused-appellants mainly on the basis of the extra-judicial confession made by them before P.W. 1 the informant and other co-villagers immediately after the occurrence and also the basis of the circumstances revealed in the evidence which according to him clearly established that the death of Rekharani was not at all accidental but homicidal.
13. On behalf of the appellant it is urged that the circumstantial evidence alone was not sufficient to establish the guilt of the accused persons, that the learned Trial Judge having acquitted the accused persons of the charge of Section 498A I.P.C. has clearly held that the prosecution failed to prove the charge that Rekharani was subjected to cruel treatment in her in-law’s house, that therefore there could be no motive for the murder, that so far as accused appellants other than Gopal are concerned the evidence of the witnesses on the face of it did not disclose as to what actual words were uttered by Srimati,